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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 11 - Evidence for February 25, 2008 - Morning meeting


OTTAWA, Monday, February 25, 2008

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:03 a.m. to consider Bill C-2, An Act to Amend the Criminal Code and to make consequential amendments to other acts.

Senator Joan Fraser (Chair) in the chair.

[Translation]

The Chair: Honourable Senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

We are continuing our study of Bill C-2, An Act to Amend the Criminal Code and to make consequential amendments to other acts. Leading off today's meeting are our first witnesses, Ms. Heidi Illingworth, Executive Director of the Canadian Resource Centre for Victims of Crime and Mr. John Muise, Director of Public Safety, of the Canadian Centre for Abuse Awareness. Perhaps Mr. Muise can explain that job title to us.

[English]

We will ask you to make a brief opening statement, following which there will be time for a question period. Mr. Muise, please proceed.

Senator Cowan: Do we have a written presentation?

John Muise, Director of Public Safety, Canadian Centre for Abuse Awareness: I provided a written presentation to the clerk.

The Chair: We received only one copy, which we gave to the interpreters. We will try to get more copies made; however, in the meantime, we had better proceed. We do have a brief from Ms. Illingworth. Therefore, it may be better if Ms. Illingworth goes first.

Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Good morning. The Canadian Resource Centre for Victims of Crime — CRCVC — is a non-government, non-profit advocacy group for victims of crime. We provide direct assistance and support to crime victims in their dealings with the criminal justice system. We also advocate for justice reform to better protect victims' rights and prevent victimization.

We are pleased to appear today before this committee to take part in the debate over Bill C-2. On a daily basis, we assist Canadians whose lives have been horrifically impacted by serious, violent crime. These victims and survivors want more than anything to prevent what happened to them or to a loved one from happening to anyone else. We believe Bill C-2 will better protect Canadians from those who repeatedly commit serious personal injury offences.

I shall not go over the five parts of the bill. Although we are supportive of the proposed changes to the Criminal Code, I will be restricting our comments today to parts 2 and 5 of the legislation only, as the legislation is very broad. We will allow our colleagues in the policing community and those in the fight against impaired driving to speak to the rest of the bill.

With regard to part 2 of the bill, raising the age of consent for sexual activities, the Canadian Resource Centre for Victims of Crime as an organization dedicated to public safety feels the protection of all children is of the utmost importance. We have long supported raising the age of consent for sexual activity to prevent the exploitation of young persons by predators. Fourteen, our current low age of sexual consent, makes children vulnerable to exploitation from adults, especially from sexual predators, who may use the Internet to lure children. We support the amendments as written. We believe it is important to immediately increase the age of protection to 16 years of age.

We want to point out that the Criminal Code already does recognize the vulnerability of children. There are specific sections that offer special protections to persons under 18 years of age, including section 153, sexual exploitation, section 163, child pornography and section 212, having to do with prostitution. Also, the Criminal Code allows young people under the age of 18 to testify behind a screen or outside of a courtroom.

We believe that increasing the age of consent from 14- to 16-year-olds is long overdue. Police point out that Canada's low age of consent is often known by sexual predators thereby encouraging them to target Canada in search of younger victims who would not be able to consent in other countries. In many countries, including Belgium, Hong Kong, Finland, the Netherlands, New Zealand and Australia, as well as most of the states in the United States, the age of consent is 16 or higher.

We believe the focus of the bill is correctly placed on the protection of vulnerable young persons from exploitive or coercive behaviour on the part of adults. Hence, we support the proposed amendments to the existing law.

I want to quickly touch on part 5 of the bill — dangerous offenders, long-term offenders and recognizances to keep the peace. Since our inception in 1993, the Canadian Resource Centre for Victims of Crime has been very concerned with high-risk offenders and how to manage them properly. We participated in 1995 in the committee hearings for Bill C-55, which made important changes to the dangerous offender legislation, including lengthening parole eligibility from three years to seven years and the creation of the long-term offender designation.

We continue to see police across the country issuing public warnings about the release of high-risk offenders. These are usually sex offenders and those who have served their entire sentences. Police are using recognisances more often, but these are only so effective. The people we help on a daily basis would agree that we are too often forced to open the prison doors and wait for a new victim.

I included some statistics and some Supreme Court information about our upholding the current provisions of the dangerous offender legislation. However, in our opinion, part 5 of Bill C-2 is a measured, focused approach that attempts to capture those offenders who have shown by their past behaviour that either they do not want to be rehabilitated or cannot be rehabilitated. It is about public safety and ensuring that we do not allow these individuals to prey on more innocent victims. We do not believe Bill C-2 should be compared to the three-strikes law in the U.S., nor will it result in hundreds more offenders being declared dangerous every year.

Under Bill C-2, offenders convicted of three serious, violent offences for which they received federal sentences presumptively would be declared dangerous offenders and jailed indefinitely. This may sound harsh to some; however, judges in Canada do not hand out federal sentences lightly. Most sex offenders receive provincial sentences and usually only repeat sex offenders enter the federal system.

Under Bill C-2, the Crown is still required to submit an application to have the offender declared a dangerous offender. This means the Crown can, after considering all the facts, decide not to pursue a dangerous offender designation even if the offender is convicted of that third applicable offence.

A dangerous offender designation is not equivalent to simply locking someone up and throwing away the key. They can apply to be considered for day patrol after four years and full parole after seven years. After reaching full parole eligibility, the National Parole Board must review the offender's file every two years.

A lot of the criticism we have heard in the media and around different tables has been focused on the reverse onus provisions of Bill C-2. I wish to remind honourable senators that bill applies to people who have already been convicted. At the end of the day, whether the onus is on the Crown or upon the offender, the sentencing judge must be satisfied that the offender is so dangerous that he or she would be jailed indefinitely. This is not an easy standard to meet. The provisions of the Criminal Code are very stringent and judges do not take them lightly.

The issue of long-term offenders is one in which our centre is very involved. I included some statistics for you at the beginning of this section in our written presentation. We wish to remind the committee that the longer you follow sex offenders in the community, generally, the higher the rate of recidivism.

Dr. Marnie Rice, who is the Director of Scientific Studies for the Mental Health Centre Penetanguishene, told the Committee on Justice and Human Rights in the other place when they were looking at protection of children in regard to Bill C-2 that sex offenders have a high rate of serious recidivism and continue to residivate over a long period of time. She also told the committee that there is no evidence that any treatments reduce recidivism of sex offenders. The CRCVC supports a sentence of an indeterminate period of detention in the case of an offender who has breached a long-term supervision order.

Last, I want to touch on recognizances to keep the peace. This is an important aspect of the bill, one that would allow the court to impose an order for up to two years and expand the current conditions that may be imposed upon an offender. The bill speaks specifically only to sexual offences with respect to a person under 14 years of age and serious personal injury offences.

We support all of the reasonable conditions that a judge may impose on an offender, including participation in a treatment program, wearing an electronic monitoring device, remaining within a specific geographic area, observing a curfew, abstaining from the consumption of drugs or alcohol, not possessing firearms or other weapons and reporting to the correctional authority of the province or an appropriate police authority.

These orders have been proven to be one of the few law enforcement tools to deal with high-risk offenders who have served their entire sentence and are being released from prison despite the risk. The committee should be aware of the inquest into the death of Sarah Dawn Kelly, a 13-year-old girl murdered in September 1994 by Robert Arthurson, an identified pedophile. The Kelly inquest found that the current one-year time limit in section 810.1 of the Criminal Code was insufficient and recommended extension beyond the one-year limit.

In 1995, our organization recommended that the one-year time limit be extended to five years. Therefore, we strongly support the amendments to extend the maximum period for recognizance for these offences to two years and to expand the scope of conditions that may be imposed by a judge in these cases.

In conclusion, Bill C-2 is a fair and justifiable measure to protect Canadians, especially the most vulnerable among us, our children. The CRCVC urges the Senate to pass this important legislation without further delay. As an agency that assists survivors of serious violent crime on a daily basis, we support the proposed amendments to the Criminal Code with respect to increasing the age of consent to better protect children from sexual predators as well as the amendments to strengthen provisions dealing with dangerous and long-term offenders. We cannot continue to allow innocent Canadians, especially our children, to fall prey to these offenders whom experts know will cause serious and devastating harm. We recognize the importance of closely supervising such offenders at the end of their sentences, thus we support the amendments pertaining to recognizance and to keep the peace.

Parliament needs to act with regard to post-sentence detention and create legislation to ensure the rights of proven high-risk offenders no longer come before the rights of innocent citizens to be protected from harm.

John Muise, Director of Public Safety, Canadian Centre for Abuse Awareness: Good morning, honourable senators. It is an honour to appear before this committee and testify in regard to Bill C-2. I am a recently retired detective sergeant from the Toronto Police Service. I retired in 2006 after serving 30 years. Six of those last seven years were spent on loan to the Ontario Office for Victims of Crime, an arm's length advisory agency to the provincial government. We provided advice to a series of Attorneys General.

I am here in my capacity as the Director of Public Safety for the Canadian Centre for Abuse Awareness, CCAA, where I support their advocacy and public education campaign. This includes advocating for legislative changes to better enhance public safety and protect children. The agency is based in Newmarket, north of Toronto, and is a national, non-governmental charitable organization operated by a small group of committed volunteers and staff. The CCAA provides a number of services to people at risk and is supported solely by individual and corporate donations.

In 2004, the CCAA travelled the province of Ontario and held 10 round tables that included approximately 150 front-line criminal justice professionals of all kinds — crime victims, survivors and other interested parties. Recommendations taken from these consultations made their way into a report titled the Martin's Hope Legislative Round Table Report. The CCAA believes that those on the front lines of the public safety fight and those victimized provide invaluable insights on how to improve public safety and better respond to those victimized. Our report is named in memory of Martin Arnold Kruze, the first victim of the Maple Leaf Gardens child sexual abuse scandal to come forward courageously and publicly disclose his victimization. Four days after the predator in his case was sentenced to just two years less a day in jail, Martin tragically committed suicide by jumping to his death from the Bloor Street Viaduct.

Martin's Hope makes 40 recommendations for federal legislative change. Among others, it includes amending the age of protection, exactly as the legislation is written, except for the amended provision made at the House of Commons Justice and Human Rights Committee to allow for marriage where a province's marriage laws support the marriage, changes to enhance dangerous offender provisions and changes to enhance the effectiveness of the Criminal Code section 810.2 orders.

During the last year, the CCAA has appeared four times in support of the predecessor Bill C-10, mandatory minimum sentences, Bill C-35, reverse onus on bail for certain firearms, Bill C-27, dangerous offender and section 810 amendments, and Bill C-22, age of protection, when we appeared before a committee on the current Bill C-2.

Obviously, in the time we have today we will not be able to discuss this bill in detail. My comments will be somewhat big picture in nature and in doing so I hope to anticipate and respond to some of the concerns that some or all of you may have.

The first question is whether crime is up or down. Criminologists are always quick to point out that in assessing this question it is best to look at long-term rates and not year to year changes. They are entirely correct, and Canadian numbers tell us this: Reported crime is way up in this country over the long term. It is particularly so when talking about violent crime. In 1962, the national violent crime rate was 221 per 100,000 population. In 2004, the rate was 946 per 100,000 population, after maxing out at 1,084 per 100,000 in 1992. From pleasantville to guns and gangsters in the hood, the increase has been statistically profound.

My own anecdotal law enforcement experience confirms this significant increase. As one example, when I signed up as a cop in 1976, it was rare for a handgun to be seized from an offender. When it happened, everyone in the detective office would crowd around to see what kind of firearm had been taken. Today, seizures are routine and expected. There is no longer any excitement in the police station. It happens all too often.

These numbers are from the 2004 Statistics Canada report and I think they speak for themselves. I provided these numbers to the Justice and Human Rights Committee on more than one occasion during evidence provided on the predecessor bills.

The next question might be: Does incarceration work? Much discussion has taken place about the impact of incarceration in relation to Bill C-10, mandatory minimum sentences and Bill C-27, dangerous offenders. The prevailing academic notion in Canada is that crime rates are not impacted in a way that we would hope for — and certainly that I would hope for — by increased rates of incarceration.

A number of Canadians studies are referenced in the Parliamentary Information and Research Service-Legislative Summary on Bill C-2. A person need not apologize for feeling somewhat confused after reviewing some of the information. The same legislative summary does reference some American research, including studies drawing the conclusion that incarceration can reduce crime rates.

One study that was presented to the Justice and Human Rights Committee during deliberations on Bill C-10 by Carleton University Professor Ian Lee is not included in the legislative summary. The research was done by Professor Steven Levitt for the Journal of Economic Perspectives. Professor Levitt is the Alvin Baum professor of economics at the University of Chicago and research fellow for the American Bar Foundation. His paper was written while he was a fellow at the Centre for Advanced Study in the Behavioural Sciences at Stanford University.

Professor Levitt came to the conclusion that increased incarceration was the single largest statistical determinant for reduction in the violent crime rate in the United States from 1991 to 2001. I believe his research is compelling and I would encourage you to review it and others like it.

Although violent crime also went down during the same time period in Canada, it should be noted that it only dropped about 8 per cent in this country. The drop in the U.S. during the same time period was far greater, as was the increase in incarceration. Professor Levitt does make the point that at some point in time, the impact of incarceration on reducing crime rates is diminished. However, at the end of the day, locking up the real bad guys for extended periods of time works.

Locking up criminals that commit serious crimes with firearms, particularly repeat offenders, as contemplated in Bill C-10, or the additional offenders that might be declared dangerous, as contemplated by Bill C-27, are not offenders at the margins but rather the serious criminals that need to be incarcerated and incapacitated. They are, in fact, that small minority of serious offenders that commit a disproportionate amount of serious violent crime. Passage of this legislation, combined with what we hope will be future parole law reform, will help reduce crime and victimization of the worst kind.

Finally, it should be noted that this legislation — certainly Bill C-10, the minimum mandatory sentences for firearms — has received support across political affiliations, including, among others, the Liberal attorney general of Ontario, who previously testified in support of Bill C-10, and the NDP attorney general of Manitoba, who travelled to Ottawa in support of the reintroduction of Bill C-2 last fall.

Will Bill C-27 result in shoplifters and bicycle thieves getting locked up? Nothing could be further from the truth. I like to refer to Bill C-27 as triggering legislation. Commit two primary designated offences at different times, for which you receive sentences of two years or more federal time in a penitentiary, and the third offence triggers the application and reverses the onus. It is up to a judge to decide the fate of the offender across a range of potential consequences, including long-term offender designation and just plain incarceration. It is light years away from three strikes and you are out.

An offender that triggers this provision will usually have numerous and varied convictions, likely over a number of years, with a large majority of them sex offences. A recent case that has been in the news, and for which much of his criminal history is a matter of public record, is that of Paul Douglas Callow, also known as the ``balcony rapist.'' I referenced this case when I testified on Bill C-27.

Mr. Callow has a record dating back to the early 1970s that includes a number of convictions for property and violent crimes, including break and enter and assault. Mr. Callow also has a conviction for loiter by night, peeping, on his record. He has an historic rape conviction — an historic offence that is included as a primary designated offence, for which he was sentenced to four years in prison — and an offence for which he was subsequently recommitted as a mandatory supervision parole violator, now known as statutory release. Finally, he was sentenced again in 1987 for five counts of sexual assault with a weapon, which is also primary designated offence applicable, and given a total of 20 years in prison. In light of the danger posed, he was held until he had served every last day of his sentence with release when he reached warrant expiry in February of last year. Since his release, he has been on a section 810.2 order.

People are wondering why this offender has not already been declared a dangerous offender, but he was not. If he commits another sexual assault, which would apply as an applicable primary designated offence, and receives a sentence of two years or more, the reverse onus provision of Bill C-27 would kick in. The CCAA believes this would be entirely appropriate. We believe Mr. Callow is typical of the kind of offender that would be captured by this legislation.

I will not comment on the section 810.2 orders. We obviously support them and I am guessing you have less concerns. Certainly, I am able to comment at question period.

Is the proposed age of protection amendment necessary and is it a good idea? The simple answer is yes. It is time for Canada to come into line with most other First World countries, including Australia, England, Scotland, Norway, virtually every state in the U.S. and a number of other jurisdictions. It is the responsibility of the state to protect children, and that is what 14- and 15-year-olds are.

The legislation proposed is written exactly as recommended by the CCAA, except for the added ongoing exemption for marriage included in our Martin's Hope report. With a close-in-age exemption of five years, young people will not be criminalized. Anyone who has had children knows the emotional maturity level of a 14- or 15-year-old, and their inability to deal with the enormous power imbalance that exists with an adult. A line in the sand must be drawn.

A presumption in law, as has been previously suggested, is a very bad idea. It is a slippery slope that would play out in court again and again. Victims will be forced to testify as a result of this kind of presumption and will be further scarred. With respect, this suggestion needs to be dismissed outright.

Predators in and outside the country are watching. They talk about it in their Internet chat rooms. Any pretension of being known as a country that protects and reveres children cannot be fully realized until this age is changed.

There is widespread support for this legislation. A 2002 survey of 1,600-plus Canadians done by Pollara Research confirmed that 80 per cent of Canadians 18 and over support an increase in the age of consent from 14 to 16 years of age. Even the Canadian Bar Association supported passage of Bill C-22 when they testified at the House committee.

When I discuss this topic with ordinary Canadians, most of them parents, they wonder why the age of protection is not 18. Be that as it may, we believe the move from 14 to 16 is an urgent priority and we support passage now.

Finally, will this legislation drive children underground who might wish to access a variety of public health or social services? I have heard the argument that some children may be reluctant to get help because the man they are having sex with is breaking the law.

Here is another example. A student who is having sex with his or her teacher may also be reluctant to come forward, knowing the adult he or she is having sex with is breaking the law. However, no one would suggest that we repeal the undue exploitation section of the code and say it is okay for that teacher to have sex with a student because some victims might go underground. That law sends the message that in Canada we do not allow adults in a position of trust to take advantage of children 17 and under. That legislation is directed at the adult offenders, and I would make the same argument that it would be ridiculous not to pass this legislation because a small number of 14- and 15-year-old children might not access services. Are we going to shortchange 14- and 15-year-olds? Remember, children accessing public health or social services are under no obligation to identify their sexual partner. The argument, I would suggest, is premised on the blackmail theory. It is wrong-headed. We make laws because it is the right thing to do. In this case, it is to protect children and not because some victims might not access services.

In closing, the CCAA provided briefs and evidence to the House of Commons standing committee on Bill C-10, Bill C-27 and Bill C-35 and evidence during the hearings into Bill C-2 on the Bill C-22 and Bill C-27 portions of this bill. If this committee would like a copy of any of those briefs, the Martin's Hope report or the study that I referenced earlier, I can provide them to the clerk.

Martin Kruze had a wish. It was his hope that he could help to prevent at least one case of child abuse. We believe this bill will do that and much more, and so we encourage the speedy passage of Bill C-2 by the Senate. Thank you for the opportunity to present our position. I will be happy to answer any questions.

The Chair: Thank you, Mr. Muise.

Senator Stratton: I had a concern late last week with the push by several witnesses that judges should be given the discretion insofar as mandatory sentences are concerned. They mentioned that the accused and the community should be consulted. However, the part lacking in those discussions was that of the victims, as they were not mentioned. They talked for the most part about the potential damage to the accused and the convicted.

I would like to know the cost of this in terms of the victims, their families and society. It must be substantial because they live with it for the rest of their lives, if they are alive. If we are to protect the rights of the victim, does this bill go far enough in doing that? Does this bill allow victims the appropriate methods by which they feel they have had their rights protected and are being heard?

Mr. Muise: Thank you for the question. Under Bill C-10 on mandatory minimum sentencing, the 10-year sentence for the third repeat of a serious offence was changed by the House of Commons standing committee to seven years. Obviously, we supported the original numbers. We support the bill going through. My last posting before leaving the police service was as the officer in charge of the major case management section of the Toronto Police Service and the retroactive DNA team. Firearms have laid waste to certain communities, not just in Toronto. Certainly, it is a major problem in the GTA, Winnipeg and many other urban centres where firearms have laid waste to whole communities. More often than not, these communities are marginalized.

In cases of homicide, those affected are affected for the rest of their lives. I met many victims of crime at the office during my time on the police service. I have yet to meet a homicide victim that every single day of their lives does not think about the child they have lost. It is something that they live with. The cost in terms of broken families and bankruptcies goes on and on. Even in cases other than homicide, a victim might be confined to a wheelchair, for example, as a result of being caught in the crossfire of an attempted criminal execution.

The emotional and physical scars for people that have been shot in most instances last a lifetime, along with the flashbacks and inability to work and to carry on a relationship. The cost of crime is enormous for people. Certainly, if you accept my evidence in terms of incarcerating the worst offender and, by doing so, incapacitating some of them, then this bill will make a difference. We need parole reform to make that a reality. In response to your question, senator, we would like to see the bill go forward.

Ms. Illingworth: We believe it is a good start, but it does not go far enough yet. This is an important start in terms of child protection and dealing with repeat, serious violent offenders. Most of the individuals and families that we deal with absolutely support a mandatory minimum term of incarceration. When an offender sexually assaults numerous children and receives a sentence of under two years in a provincial institution, he might be considered for parole in six months. It is truly difficult for the victims and their families to accept that the offender would be getting any help or treatment in such a short period of time and that society has not denounced what has happened to those children who will be severely impacted for the rest of their lives.

Senator Campbell: Mr. Muise, we were police officers at the same time and I agree with your anecdotal evidence in respect of handguns. Does your organization support the outlawing of handguns?

Mr. Muise: I grapple with this question but, on the record, I support controlling firearms in this country. Control over firearms is good as it relates to accident, suicide and theft of weapons to reduce crime. That is part of the solution. By virtue of the fact that they are restricted weapons, I believe handguns are banned de facto in this country. I recognize that people have permits to carry guns and registration certificates for handguns. I would like to see a tightening up of control in terms of sport shooters and gun collectors. We have seen people who have had a licence to possess firearms who have gone on to use weapons, handguns included, to commit serious crimes. I believe we could ban handguns and try to get around the country and gather them all up. The reality is, though, that criminals do not register their handguns. For shortage that would exist as a result of not being able to steal them, for instance, from homes or from other places where they are legally held, or for those sport shooters that decide to do something horrible, weapons will still come across the border in large numbers. There is one fundamental thing that we would have to do in this country to stop the flow of handguns across the Canadian border and I do not see anyone willing to do that because there is a flow through particular locations that we are not prepared to stop currently.

Senator Campbell: My second question is in regard to Professor Levitt. Last week we heard from Professor Mauser, who quoted from a study covering the same period of time. This was referred to as the Marvell and Moody study. We then heard from Professor Boyd, who was the only criminologist. Professor Levitt and Professor Mauser are not criminologists. Professor Boyd said the difficulty in these reports is that it is one country. When he looked at the relationship of more than 100 countries, he found that the countries that have the highest rates of imprisonment also have the highest rates of homicide. It was his feeling that it was not so much the incarceration as a shift in the demographics, namely, that 10 per cent of the male population in 1975 was between ages 15 and 29 and they commit two thirds of the offences. It is now down to 5 per cent of males.

I have some concerns about taking one study of one country. The U.S. has more people in jail than any other country in the world; yet, we still see a huge homicide rate versus Canada.

Mr. Muise: I think that question is a good one. I struggle. I defy anyone not to struggle after they read the legislative summary and after they start reading these reports. One academic says one thing and another academic says another thing.

I would encourage you to look at the Marvell and Moody study. I will provide the information to obtain Professor Levitt's study through the clerk. Professor Levitt dismisses the changing demographics and gets into detail as to why. We know that in Canada violent crime went from about 1,084 per 100,000 to 946 — probably an 8 per cent drop during that 1991 to 2001 period.

You are right; there is a high homicide rate in the United States of America. They have significant issues around poverty and remnants of the Deep South and a number of things that contribute to poverty such as inner-city ghettos. What I find fascinating about his report is that when we had an 8 per cent drop, and when he shows a significant increase in incarceration, they have profound drops in crime rates over that same 1991 to 2001 period. Yet, I would suggest that they have the same shifting demand graphics as we do.

Although we went down approximately 8 per cent in reported crime, they went down —

Senator Campbell: To 13 per cent?

Mr. Muise: Not in terms of violent crime — certainly more than that. That might be the overall crime rate, though.

Senator Campbell: For homicide; sorry.

Mr. Muise: I am talking about violent crime generally. Obviously, I support his hypothesis. I am presenting his research. It makes my case. As with everyone that appears here, for me it is from where I come and my experience; it is intuitively sound. If you identify the really bad guys and lock them up, they will be incapacitated. I do not stand alone in that. Attorney General Bryant made the same point.

Senator Campbell: What do you say in answer to the fact that the highest rates of imprisonment also have the highest rates of homicide?

The Chair: Mr. Muise, because we have senators wanting to ask questions, I will let you answer. However, if you could shorten up your response that will be useful in the long run.

Mr. Muise: My apologies. I will.

In nations where we incarcerate people or where we must incarcerate people, obviously there are a lot of homicides. However, when incarceration went up the homicides went down. That is the point that I take from it.

Senator Di Nino: Good morning to both of you and welcome.

As both of you know, I am from the city of Toronto. This weekend, we have had some other horrible fatalities, three I believe — one in the city itself and two outside.

It seems like a normal daily occurrence in the GTA, where we are having generally a lot of crime committed with guns. My opinion, I guess, is a little stronger on this issue than some others.

Both of you work in an area where, thank God you are there; it cannot be the most pleasant job in the world. You see the results of the worst of the worst criminals.

By being tougher, by longer sentences and by mandatory sentences to keep these people off the streets, are we not helping lessen the incidence of crime?

Ms. Illingworth: In the most serious violent cases, there needs to be incapacitating. If we are to allow the correctional system to rehabilitate, assist and help these people to develop pro-social attitudes and lifestyles, there needs to be some sort of time spent inside to do those things. The correctional system has more and more short sentences, three and four years now, for serious violent offences.

These people are not addressing any of the criminogenic factors they have while they are inside. For the people who have been harmed the most, the victims, all they know is that the perpetrator of the crime is coming back out. They are still fearful. They know it will happen again to someone else.

Mr. Muise: If you target the right people, the worst offenders — and I would suggest the Bill C-27 provision — the estimates are potentially another 25 people a year. In a population of 30 million people, half of which are male — this is about men for the most part. If you target another 25 people out of a population of 15 million men, people that continue to commit crimes — for example, Paul Douglas Callow, who spent 20 years in jail, was not able to rape another woman during those 20 years. The same could be said for that shooter who boots in a door looking for somebody and puts six bullets in him. That offender shows a callous, reckless disregard for the lives and safety of others. If he is locked up for seven or ten years, and he serves every last day of his sentence and then gets a section 810 or long-term offender order, we will reduce crime because these are the offenders who will continue to reoffend, recidivists.

Senator Di Nino: Do you believe, as I do, without any particular scientific evidence, that in particular young people in urban centres see the laws today as a bit of a joke, that they do not consider the laws at all? In my opinion, the laws are probably not tough enough on them. From your experience as a police officer, do you have the same opinion? Do you agree with that?

Mr. Muise: There is no question. Just so you are aware, I spent several years in one of the original street crime units, a community-based policing strategy that was set up in the early 1990s to combat youth violence and crime.

Whether in particular cases they are right or wrong, that is how they feel. If, for instance, one of their older pals gets caught with a handgun or shooting somebody, gets out on bail and subsequently gets a sentence and is out on parole quickly, they learn that the consequence is not there. For somebody like that to move into that kind of crime, the potential exists.

Senator Di Nino: My question is related to the effectiveness of our system to rehabilitate the folks we send in there.

From both of your experiences, are we doing a good enough job? Are we putting enough resources in? Are we paying enough attention and are we even making a dent in rehabilitating the vast majority of these folks we put in there for the most violent and habitual offences?

Mr. Muise: Some do if they have it within them. They are tired of going to prison, if they have gone for any length of time. The reality is that we could do a much better job. I can tell you our correction system is in need of reform on a number of fronts. I appeared before a corrections review team, provided a brief and answered a number of questions of the team. They released a paper recently. We have a lot of work to do in both corrections and parole reform before a large number of our offenders actually get it.

Ms. Illingworth: I would agree with that. The correction service has many strong programs but there needs to be better accounting within that system to ensure that the offenders who are motivated to make changes and become pro- social are accessing those programs. There needs to be a better way to segregate the offenders who we know will not do the work they need to do when they are on the inside.

Senator Di Nino: Should the parole system be on a reward system for participation towards rehabilitation? We do not do enough of that.

Mr. Muise: A good start would be making all parole earned and not automatic. It sends a horrible message — and this is not somebody who disagrees with parole, with people reintegrating into communities — but if you tell offenders there is an automatic release or, for instance, that potentially they can get out at one sixth, then when they get out, breach of parole is not a criminal offence, or when they come back in they do not serve sufficient remnant time, and there are number of such issues, then at the end of the day that supports a failure of rehabilitation.

Senator Andreychuk: To either of the witnesses but perhaps more to Mr. Muise, because of his background, I support the bill when it comes to serious, violent, repeat offenders, and those are the ones that we have not really been able to treat or they have not been able to treat themselves, so they are repetitive and violent. We come to weighing those on the protection issue.

Do you agree with me that that is a narrow band, that the balance has to be that we start earlier, do more, and treat offenders before they find themselves in that category? Do you subscribe to that philosophy? There is one exception: It seems from the literature I have read that we do not know how to rehabilitate and change sexual predators, in that group that ends up in the violent and the repetitive.

Mr. Muise: First, yes, I agree with your premise. Second, I think we are talking about Bill C-10 and Bill C-27. I would suggest both of those portions of the bill speak to your values. For instance, if we are looking at Bill C-27, those who get a separate third penitentiary term are the fellows where you get the record and it drops down. They hurt many people or a handful of people very badly. Two years in the penitentiary is not something that judges give out willy-nilly and the primary designated offences are all serious crimes. I do not want to be smart, but we will not capture any shoplifters in this legislation.

Equally with Bill C-10, in terms of your last question about sex offenders, they are a difficult subset. I am a retired cop, not a clinician, social worker or doctor, but when we are nervous about somebody's danger we need to err on the side of protection of those potentially at risk.

Senator Andreychuk: Once we do incarcerate them for a longer period of time, will they afford themselves of available treatment — first, we have to presume that treatments will be there.

There will be some who will be released, and we do not know of that narrow band how many will be released without the treatment because they did not afford themselves of it.

More and more in the literature I am reading from the United States, there is thought given to what one has to do pre-release on an integrating strategy rather than just the treatment of the person and his needs — his needs and society's needs when he comes out, if he has not changed his behaviour or if the society he goes back to does not help him maintain the promises that he has made to himself and others.

Mr. Muise: You are right. It is a public case, and we have talked about it and it has been enormously in the news: Paul Callow served every last day of his sentence, 20 years in jail; he was a dangerous guy and was put on a section 810.2 order. He has gone to warrant expiry, but in terms of his federal sentence, he is out in the community, and most offenders do get out in the community. That is the reality. I would hope that help for him is integrated and ongoing because if it is not, if we do not reduce his risk, he could potentially go out and reoffend against somebody. If it is at all possible, it could be worse than the last time.

Senator Cowan: Senator Andreychuk has set out the premises accurately and has summarized the complexity of the problem. We would all agree with that.

Referring to somebody like Callow, what specifically is it about the legislative procedures and sanctions set out in the Criminal Code that prevents the system from dealing with him now? What change is necessary to ensure that somebody like Callow is put away? Why does the present system not work for somebody like Callow?

Mr. Muise: I will give one example of how Bill C-2 would work better.

Senator Cowan: I am asking about under the existing law. I know what would happen under Bill C-2.

Mr. Muise: Currently, we put them on a section 810.2 order for one year; the order has to be renewed at the end of the year. Fortunately, because this person is surrounded by people who want to ensure he integrates properly, he has allowed himself to be subjected to a number of conditions that will help control his behaviour.

In a less-than-perfect way, the current system does respond to Mr. Callow. Having said that, if Bill C-2 is passed, section 810.2 will increase from one to two years. For the offender who is not as helpful when they come before the court, Bill C-2 declares all the things a judge can do regarding his or her behaviour and movement to ensure that the risk of this person re-offending is reduced. For example, the judge can order the use of an electronic monitoring bracelet and, potentially, treatment.

Senator Cowan: Is there anything preventing an application being made now to have him declared a dangerous offender?

Mr. Muise: Yes, because dangerous offender applications are made at the time of trial and sentencing.

Senator Cowan: Why could that not have been done at the time?

Mr. Muise: That is a very good question, senator. I will speculate, if I may. He may have pled guilty and agreed to a sentence of 20 years in exchange for not being declared a dangerous offender. I do not know.

Senator Cowan: My point is that the present law would allow an application to be made for someone like him to be declared a dangerous offender.

Mr. Muise: Potentially, yes.

Senator Cowan: As well as for a greater sanction than simply section 810.2; is that correct?

Mr. Muise: That potential does exist.

Senator Cowan: So simply changing the legislation will not necessarily fix that; correct?

Mr. Muise: I believe the amendment in terms of Bill C-27 would potentially add a number of people who are dangerous to the handful of dangerous offenders that are declared every year.

Senator Cowan: I want to move to mandatory minimum sentences. We all agree that as long as an offender is incarcerated he or she cannot offend against anyone other than fellow prisoners. That is obvious. The longer the person is incarcerated, the less the individual is in the community and therefore unable to offend against the community.

Can you point to any evidence that mandatory minimum sentences, in and of themselves, are a factor in the mind of the offender and therefore would deter that offender from committing either an initial offence or a subsequent offence, or a deterrent in the minds of others, that is, the fact that a mandatory minimum sentence has been imposed on an offender will deter potential offenders? Leaving aside the incapacitation argument, which we accept, is there any deterrent effect on the offender or others? Can you point us to any studies that support that proposition, or are we simply talking about punishment?

Ms. Illingworth: We are talking about denunciation as well, which is an important principle of sentencing in the Criminal Code.

Senator Cowan: I appreciate that, but does that have any deterrent effect?

Ms. Illingworth: I do not know that deterrence should be placed on a higher level of importance than these other things.

Senator Cowan: I am not suggesting that it is, but it is one factor to be taken into consideration in sentencing, is it not, as set out in the Criminal Code?

Ms. Illingworth: Yes, but there are other factors as well.

Senator Cowan: Absolutely. The sentencing regime is designed to balance those various factors, and that is what we have judges for.

Ms. Illingworth: That is right, but there are some offences that are so serious and violent that they require a minimum sentence, and we have judges in this country who are regularly giving less than two years to offenders who horrifically sexually assault multiple victims over a long period of time. We know from the research that these sorts of predators cannot be rehabilitated, and they receive sentences that allow them to be back out in society to offend again.

Senator Cowan: I am not arguing that. I accept the punishment part, but I am looking at the deterrence aspect. I am asking you whether you have any evidence that you could point us to that would indicate that mandatory minimum sentences have a deterrent effect. I am not suggesting that deterrence ought to be higher than punishment; I am simply asking that question.

Mr. Muise: I work from the point of view that it prevents crime because they are incapacitated. The literature in this country is not supportive of that. However, it is not about punishment because, as you know, punishment is not a sentencing principle in this country. For those offenders, I suggest that the overriding principle is to separate offenders from society where necessary and, of course, from where I sit, to enhance public safety.

Senator Cowan: You are separating from society those offenders who have been convicted and are incarcerated?

Mr. Muise: Yes.

Senator Cowan: Is there any evidence that mandatory minimums would deter that offender from committing the offence in the first place? Does it prevent the crime or does it simply separate them from society so they cannot repeat the crime?

Mr. Muise: Certainly, it does that.

Senator Cowan: The latter?

Mr. Muise: Yes. I would suggest that some offenders are deterred and some are not. I would be trying to make a case that does not exist, because some offenders are not deterred. Some guys are so bad that the only place they need to be, if you accept that society needs to separate offenders from society where necessary, is in prison, because they will not be deterred. They do not care. If we lock them up, we are safe from those particular people.

Senator Cowan: Are we agreed that that is a narrow band of society?

Mr. Muise: That are incarcerated, yes.

Senator Milne: Mr. Muise, I was somewhat comforted when you said that the legislation proposed is written exactly as you have recommended and that anyone who has had children knows the maturity level of a 14- or 15-year-old and their inability to deal with the enormous power imbalance that exists between them and adults.

You agree then that 14- and 15-year-olds are children?

Mr. Muise: Yes.

Senator Milne: However, 14- and 15-year-olds, and in fact children as young as 12, are considered competent to decide whether an act is criminal under our present law.

Mr. Muise: That is correct.

Senator Milne: I have a great deal of difficulty balancing these two things; deciding whether having sex with your 21- year-old boyfriend is dangerous, and being able to decide, at age 12, whether an act is criminal.

Mr. Muise: The age-of-protection legislation does not say to a person 14 or 15 years old that they cannot have sex with a 35-year-old. The legislation points at the 35-year-old. The 14- or 15-year-old is not committing a crime by having sex with a 35-year-old. It is the 35-year-old who is committing the offence.

Senator Milne: That is predatory sex. That is already dealt with in the Criminal Code. This bill, it seems to me, deals with consensual sex.

Mr. Muise: That is correct. If a 35-year-old is having sex with a 14- or 15-year-old that is not otherwise predatory in terms of the undue exploitation section of the Criminal Code — for which there are a number of circumstances when that could unfold —that is what this particular section applies to.

Senator Milne: The net catches the 21-year-old too.

Mr. Muise: I know that is the age that has been put out there. Frankly, I look at this as someone who spent 30 years in law enforcement. I do not think that, in the main, we will find those cases. I will say that a 21-year-old is vastly more mature and in a position of power and control over a person aged 14 or 15.

Like many of you in the room who have grown children — I have four children who went through their teenage years a few years ago. More than one of them are pretty intellectual, but I have to say when they were 14 and 15 they were emotionally on a different planet than where they are now, at 19 to 23. Children aged 14 and 15 are emotionally on a different planet than someone who is 21 years of age.

I think most Canadians recognize that. That is why they support the legislation, even if, potentially, on the rarest of occasions, a 21-year-old might be prosecuted.

Senator Milne: I have lived through that as well with my own children, and I agree with you. However, I now have a 12-year-old granddaughter in a school where there are students aged 17 and 18 in the same school. They are schoolmates.

Mr. Muise: As you know, 12- and 13-year-olds are protected by the current legislation, and there is a two-year close- in-age exemption.

Senator Milne: Also in this school are 15- and 16-year-olds who are there with 21-year-olds. It is a real problem to me.

Ms. Illingworth: Obviously, in most of the high schools this is the sort of situation you will find. However, what this bill rightly focuses on is exploitive behaviour. In these sorts of cases, the police will not be arresting 21-year-olds.

Senator Milne: This bill deals with consensual sex, not with exploitive behaviour. That is already dealt with in the Criminal Code.

Ms. Illingworth: No. This is to capture the 14- and 15-year-olds who are not currently captured.

Senator Milne: It is still consensual sex.

Mr. Muise: Consensual and exploitive sex, I would suggest.

Senator Milne: Exploitive is already captured.

Mr. Muise: I agree; under certain circumstances. The undue exploitation section does not apply to all circumstances. The bottom line is this: Without this legislation passed, there will be persons aged 14 and 15 who will still be at risk of exploitive — when I say ``exploitive,'' I say it in a general way. There will still be the opportunity for predators, if this legislation does not pass, to exploit persons aged 14 and 15. The legislation, as it is currently written, does not apply to every fact situation.

Senator Milne: Mr. Muise, when you appeared before the House committee on Bill C-35, you said that, according to Government of Canada statistics, of almost 1,000 crimes involving firearms or restricted weapons committed in Toronto in 2006, nearly 40 per cent were committed by someone who was on bail or parole. Then, according to the Toronto police, 70 per cent of people charged in homicide in 2006 were under a court order at the time of the offence.

Have you been able to find the source of those statistics? The House committee was unable to find out any more information about them. These are important statistics that the Prime Minister has quoted. The minister, when he appeared before us two or three weeks ago, said that he would get us information relating to where those statistics came from and a little more background information on them. We have not been able to get any more information.

Mr. Muise: I did not bring my Bill C-35 brief with me, because I focused on Bill C-27 and Bill C-10. Regrettably, no one has contacted me from either the House committee or the Senate committee.

The Chair: The short question is: Can you give us the source for the data?

Mr. Muise: I will have to look at my brief. If I can, I will. I will have to see what I said in that brief. I did not review it for this appearance.

Senator Milne: Do you think it is fair for this committee to support these changes outlined in clause 37 of this bill — the old Bill C-35 — without having access to these studies that have been used publicly by the government but have not given to us?

Mr. Muise: I am at a bit of a loss. I think it is up to all of you to decide. That is a question I do not feel comfortable answering. I will look at my brief and see what information I can provide.

Senator Oliver: First, I want to congratulate both of you for the excellence of your presentations. Mr. Muise, you have had 30 years of experience in law enforcement, and you both work with victims of crime on a daily basis. You are excellent witnesses for what we are doing here today in Bill C-2. I thank you for your presentations.

I will not repeat all of the things you said in your reports; however, Mr. Muise, you said that when incarceration goes up, homicides go down. You base that on your 30 years of work in the law enforcement. You both have eloquently given several reasons why you support Bill C-2. I will not go into those reasons.

I, like Senator Cowan, am interested in the case you referred to of Paul Douglas Callow. He was known as the balcony rapist. He was a peeper. He was a rapist. He had five counts of sexual assault with a weapon for which he got 20 years. He is being released in February, and this is February, so right now.

My question is this: How will Bill C-2 help that situation? The fact that he is getting out now, have our sentences — the sentences that he received — been proportionate? If they have been proportionate, would we be facing the potential problem we are facing now?

A number of people seem to think that we are sentencing dangerous offenders for what they might do in the future, but we are not good at guessing what they might do. Do you see that as being a problem? That is my question.

Mr. Muise: Mr. Callow got out February 2007. This bill will help because we do not need retroactivity. This bill will help because if the police renew his section 810.2 order, they will be able to renew it for two years and they will potentially be able to get other mechanisms to control him. That is a good thing.

Do I believe that the dangerous offender legislation is proportionate? Currently, yes. I believe these amendments are proportionate, too. At the end of the day, it is identifying people — with serious criminal records — who otherwise might not be identified as dangerous offenders in certain instances. It certainly raises the bar in terms of considering them as dangerous offenders. Those are the very offenders who carry on and commit crimes, so it will be helpful.

Ms. Illingworth: I wanted to point you to a section of my brief where I talk about post-sentence detention. You are right in pointing out that even though these are some positive changes that may be coming through, the bill still does not address the problem of an offender who was not declared a dangerous offender and is regarded as likely to commit a violent offence upon release.

Our organization has been involved with advocating for post-sentence detention for a long time. There is a lot of research evidence that shows that towards the end of the sentence the authorities are better able to predict if someone will recidivate.

There have been inquests that have suggested sexual predator laws. In 1993, the Mulroney government appointed a task force to review the problem and they came out with a recommendation that post-sentence detention makes sense because we are better able to predict someone's level of risk at the end of the sentence than we are 10 years prior to that.

In this debate, we cannot focus only on the rights of the few proven high-risk offenders, but we also need to consider protecting the rights of the innocent.

Senator Tardif: I want to go back to the question of the age of consent. Have there been any studies or cases showing that had there been a lower age of consent a child sexual predator would have gone to jail?

Mr. Muise: I am not aware of any studies. It is not a question for which a study would be done in this country typically. I rely on the fact that there is a gap for certain potential crime victims who are 14 and 15 and the anecdotal evidence that exists. It comes down to the fact that if we add this we will potentially protect some 14- and 15-year-olds.

Senator Tardif: Are you saying this is anecdotal evidence and there are no cases or studies that would show that?

Mr. Muise: I am not aware of any studies, no.

Senator Tardif: How do you feel about the fact that a 15-year old who has a 21-year-old boyfriend could be engaged in kissing or sexual touching and that young man could be considered a criminal?

Mr. Muise: The possibility does exist; you are right. At the margins, does it give you pause? Sure, it gives me pause. Equally, I go back to what I said about persons aged 14 and 15 and the difference and the power imbalance between persons of that age and a 21-year-old. There is no doubt of an enormous power imbalance. Therefore, it is simple. I believe the line in the sand needs to be drawn so that this country, like so many other Western, First World democracies recognize on all the fronts that persons aged 14 and 15 are indeed children and that they need to be protected.

Senator Stratton: Going back to the anecdotal evidence: There was an incident last week where a young girl was brought into an urgent care section of a hospital in Winnipeg by the police, in handcuffs. She was inebriated. She had been drinking and she was underage. I witnessed this. The police were talking to her. They had arrested her for underage drinking but also for assault of a police officer. What particularly bothered the arresting officer was the fact that she spit at the officer, which you just simply do not do today.

She had been hanging around with this bad guy, and they were saying to her: ``Why do you hang around with this bad guy? Stay away from him.'' It was my sense that had this legislation been in place the police could actually say to the guy, ``Stay away from that girl or we will come after you.''

It is my own personal anecdotal evidence that this bill could be used effectively to prevent such a thing from occurring, a sexual assault, or more important, what happens in Winnipeg, and I am sure in other centres, where young kids who are from dysfunctional families go out on the streets with their friends, get enticed by an older individual into using drugs, get hooked and then get put out as prostitutes to earn their keep and earn money for those bad guys.

May I have your reaction to that? I believe those two incidents support raising the age of consent.

Mr. Muise: I agree. One of the cases you make, and it is something I should have said in response to some of the questions here, is that there are potential other remedies; for example, a talk to someone who is at the border of the close in age or, if that does not work, a section 810 order, ordering the alleged offender not to communicate, for instance, with that child. If the individual breaches the section 810 order, then of course they would be subject to arrest.

My point is that it is not always going to result in a criminal charge. We need that legislation there. We need it passed. However, there are other options, like in any case that comes before the court. Would it help in that fact situation? You are absolutely right. Depending upon how egregious the violation is of the child, is there potential for other remedies other than actually laying the charge? Yes. That is what the police do every day of the week.

The Chair: Thank you both very much. This has been an extremely interesting session. We are grateful to you both, Mr. Muise and Ms. Illingworth.

I have the good fortune to introduce Mr. Anthony Doob, professor of criminology at the University of Toronto, appearing as an individual.

Mr. Doob, I know you are familiar with parliamentary committees, so please make your statement, following which we ask questions.

Anthony Doob, Professor, University of Toronto, as an individual: Thank you very much. I am a criminologist and for the last 35 years have carried out research on a number of different aspects of the justice system, most notably in this context on sentencing, imprisonment policies and on public attitudes concerning the criminal justice system. More recently, I have been examining the pre-trial detention process here in Ontario.

I would like to start, however, by explaining how I approached my analysis of the various aspects of Bill C-2.

I would like to be able to support policies that would be effective in reducing crime, in particular violent crime in our communities. I do not expect that this is a very controversial position. The rate of violent crime is at the moment relatively stable, which provides an ideal time for developing rational and effective approaches to violent crime.

Second, people should be punished, in my view, in the criminal justice system for what they have been proved to have done. Bill C-2 demonstrates that this is a contentious issue.

The final general principle that guides my thinking on some parts of the bill is that when people are sentenced, that sentence should be proportionate to the seriousness of the offence and the offender's responsibility for that offence.

Most of the research that I have seen on public attitudes concerning sentencing would suggest that my views on this issue are widely held. Again, Bill C-2 demonstrates that proportionality in sentencing is not broadly accepted as a critical aspect of our sentencing system as outlined in the Criminal Code.

It is in the context of these three concerns — effectively addressing violence in our society, punishing people for what they have done and handing down punishments that are proportionate to the seriousness of the crime — that I examined Bill C-2. It largely fails to address crime effectively, fails to ensure that punishment is reserved to reflect the behaviour that has been proven in court and fails to ensure that sentences are proportionate to the harm that is done.

The title of Bill C-2, the ``Tackling Violent Crime Act,'' makes a statement and a promise. The Minister of Justice on October 18, 2007, referred to the desire to ``tackle crime and make our communities safer'' as the primary justification for the bill.

Similarly, the preamble to the bill talks about ``enacting comprehensive laws to combat violent crime and to protect Canadians.'' Although the preamble suggests that laws should ensure that violent offenders are kept in prison, it is notable that there is not a reference to fair and proportionate punishment that focuses on the harm that offenders have done.

Let me give some examples of the provisions of this legislation that have little to do with protecting us from violent crime. The mandatory minimum penalties for firearms offences have been discussed extensively. The evidence of their ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.

You may have heard evidence that contradicts this conclusion. I urge you to examine this evidence carefully. The single study that is most often mentioned by government representatives and others as evidence supporting the effectiveness of this aspect of the bill has been thoroughly discredited. Perhaps the most patently absurd mandatory minimum sentence provisions relate to the raising of the mandatory minimum penalty for the third impaired driving offence from 90 days to 120 days.

Aside from the added minor incoherence that this provision injects into the overall sentencing structure in the Criminal Code, this provision will not do anything to reduce the likelihood of impaired driving. Few people know what the sentencing provisions are for impaired driving, and it is inconceivable that there is a group of people who would drink and drive assuming they would be apprehended and sentenced to a minimum 90-day sentence but not drink and drive if they knew they faced a 120-day sentence for their third impaired driving offence.

The suggestion that this will do anything about the serious problem of impaired driving is itself dangerous. It distracts those whose responsibility it is to address these problems from solutions that could have had an impact.

Similarly, the bill has provisions creating reverse onus provisions at bail hearings for certain firearms offences. These provisions imply that crown attorneys are either ineffective or unmotivated when faced with a case involving an offender charged with a serious offence involving firearms.

The proposal ignores the fact that, in the context of a stable or falling violent crime rate in recent years, the number of people detained in provincial institutions awaiting trial now rivals, and in some provinces like Ontario dramatically exceeds, the number of people serving sentences. There is no systematic evidence that I have been able to find to suggest that our bail courts in Canada need such a provision.

Of course, its intended purpose is simple: Make it more likely that people will be punished without having been convicted. However, if provisions such as these are merely ineffective, what is the concern?

I would remind you of my starting point. By advocating provisions such as those contained in this bill, anything that might be done to reduce crime in Canada is ignored. Bills such as this one imply that the solution to serious crime in Canada lies in these types of changes in the criminal law. In fact, there is almost nothing in this bill that will have any impact on violent crime.

Second, as I have suggested, at best the bill ignores the principle of proportionality in sentencing. More likely, it undermines proportionality in sentencing. Mandatory minimum sentences are one way in which this occurs. Failing to address the real problems of our bail laws creates circumstances that virtually require judges to hand down sentences that are not seen as proportionate to the severity of the offence.

The changes to the dangerous offender provisions in the Criminal Code then can be seen in this context as provisions that, by definition, move us away from sentencing offenders for the wrongs they have committed. Dangerous offender provisions in our code are designed to punish for what a court has decided they might do in the future.

Though such provisions may be important in small numbers, the question we are faced with in Bill C-2 is whether there is a need to increase the number of people who are being punished not for what they have done but for what someone thinks they might do in the future. Furthermore, these provisions suggest to Canadians that the criminal justice system is capable of doing something that it cannot do with any degree of accuracy — identify those who might in the future commit serious acts.

I will start with the problem of prediction — a central feature of the dangerous offender provisions at the moment. This legislation is designed to incapacitate people who are seen as dangers to our communities for periods of time that are longer than what they deserve given their offences. Most of those who have been designated as dangerous offenders would have been given very long sentences on the basis of proportionality. The changes you are considering might be seen as an attempt to take some of the worst penitentiary inmates and to try to ensure that they would be designated as dangerous offenders because they might offend in the future. Let us look at our ability to predict future offending. The best systematic data I was able to find comes from Correctional Service of Canada.

One study of penitentiary inmates divided those being released into five groups, according to their measured risk for committing violent offences that would bring them back into federal custody. Of the people they tracked for three years after release, about 23 per cent were placed in the worst group, those predicted on the basis of the best available evidence to be most likely to reoffend. However, of this high-likelihood-to-reoffend group, more than half did not end up back in federal custody within three years. Said differently, a prediction model, such as the dangerous offender provisions, would have made a wrong decision for most of the worst of the worst offenders.

You might be saying to yourselves, ``So what? They have done something bad, and under the proposed set of amendments, they would have to do bad things three times before they would be presumably considered to be dangerous offenders.'' The problem with the provisions is that they imply that this group of offenders is responsible for a substantial portion of violent crime. It would be reassuring to believe that a small number of people are responsible for a substantial part of violent crime and that all we had to do is identify them. That, however, turns out to be a myth.

Violent crime, unfortunately, is much more widely distributed than many people think. Let us look more carefully at some of the worst offenders in our penitentiaries, those refused parole because they are high risk and are subsequently released on statutory release at the two-thirds point or later in their sentence.

In 2005-06, there were 5,200 such people released on statutory release rather than on parole. Each year, about 150 of these offenders are returned to penitentiary for a violent offence. Expressed as a rate per 1,000 supervised offenders over the past 10 years, the rate is averaged at about 57 violent offences per 1,000 offenders being supervised on statutory release. Said differently, for every 1,000 of those refused parole being supervised, 943 did not commit a violent offence.

In terms of addressing the problem of violence in our society, you should keep in mind the fact that these people who did not qualify for parole account for a miniscule amount of violent crime. The estimate is that there are about 310,000 violent offences reported to police in Canada. About 117,000 adults are charged each year with one more or violent offences. These 150 people, some of whom the bill would presumably like to have designated as presumptive dangerous offenders, constitute less than two tenths of 1 per cent of all of those charged in Canada with a violent offence. The conclusion is obvious: It is difficult to predict who is going to commit violent offences.

Let us look at the bill. It says that for a person who has committed a primary designated offence for which it would be appropriate to impose a sentence of two years or more and who has two previous such convictions with sentences of two years or more, dangerous offender status can be presumed unless the contrary is proved on a balance of probabilities. Implicitly then, it makes a prediction about this offender's future, a prediction that we know is seriously flawed. It means that the person who has two previous convictions of assault causing bodily harm, which gave him a penitentiary sentence in part perhaps because of an extensive record of property crimes, is in jeopardy of the dangerous offender designation. A third fight in which someone is hurt put him in the category of being a presumptive dangerous offender. Given what he has been convicted of, we now tell him that he must prove that the presumption has not been met.

My concern is twofold. First, given that the offender has just been convicted of a serious violent offence, how exactly will he or she prove to the court on the balance of probabilities that he or she is not dangerous? Stated differently, it is a presumption that effectively cannot be rebutted; and, of course, this offender is facing an indefinite sentence that will be first reviewed in seven years, a sentence that would almost certainly, in the case I have described, not make sense from a proportionality perspective.

In addition, it implies that this will keep us safe from dangerous people. In terms of the benefits of incapacitation, we have to remember that the dangerous offender provisions only protect us to the extent that a person who would normally have received a regular sentence now gets incarcerated for longer. However, our hypothetical offender will be in penitentiary for quite a few additional years and will, hence, not be committing any offences in our community.

Is this the best we can do to reduce violence in our community? Do you believe that the government has carefully considered other ways in which violence could be addressed in a more effective way? You might want to think about costs and what the other choices are with the money this will cost.

When the laws are changed and more correctional costs are added to our tax bills, we need to ask whether the annual costs of a single federal prisoner, now estimated to be about $94,000 a year, might be better spent on hiring an additional police officer in troubled Northern communities or ensuring that disadvantaged youths in all of our communities have opportunities available to them and, as a result, pursue these opportunities, rather than violence, as a way of making their way in society.

For every prisoner we have in our penitentiaries for a year, it means $94,000 is not available that year for some other purpose that might be effective in reducing violence in our community.

These are real choices, and a focus on ineffective policies necessarily means that policies that could in fact make us safer are not being pursued.

The Chair: Thank you, Professor Doob. We go then to questions starting with Senator Stratton.

Senator Stratton: The disturbing part of this issue is the crime trends related to us by the Canadian Centre for Justice Statistics. Ms. Barr-Telford, the director, presented these statistics to us on February 14. The really disturbing part of this is that the rate of youth accused of firearm-related violent offences has increased 32 per cent since 2002. The attempted murder rate is up 24 per cent since 2004.

The government has already provided money for additional police officers and they are being put on the ground across the country. As well, the other issues as to prevention have been dealt with by the government — not completely and there is still a lot of work to do, but at least it is there, as I call it, a three-legged stool. Being an old guy, I refer to it as a milking stool.

If you are at the other end listening to your presentation and have had someone hurt by a violent crime, or a sexual predator who has hurt someone badly, not once, not twice but repeatedly, you say on page 4:

This legislation is designed to incapacitate people who are seen as dangers to our communities for periods of time

— and this is the interesting part —

— that are longer than what they deserve, given their offences.

When you go to the repeat offender, gun-related, sexual predators in particular, I do not know how you can say that.

Do you have a response to that? How can you justify saying that in that context?

Mr. Doob: I would justify it on two grounds: First, we have high maximum sentences in Canada; and second, and most important, we have a requirement of proportionality in our sentencing laws. That requirement is 718.1 of the Criminal Code of Canada. I ought to have stated that explicitly. Section 718.1 is an important part of the sentencing provisions in Canada. We should be aiming for sentences that are proportionate to the seriousness of the crimes.

We disagree on the mechanism to do it. Although I could be the first one to suggest to you that there are problems in the sentencing provisions of our Criminal Code, I do not see that mandatory minimum penalties are the way to deal with them. I was part of a commission 20 years ago that recommended in stronger terms than are presently in the Criminal Code that sentences be proportionate to the harm done. Also, the Canadian Sentencing Commission 20 years ago recommended that there be guidelines to ensure, in part, that very serious crimes were responded to with very severe sentences.

The question is whether you go into the sentencing provisions — something that could be done easily with legislation — and change things like mandatory minimum penalties, or whether you address what I consider to be very serious problems of sentencing. We have an incoherent sentencing scheme at the moment. Do not get me wrong: The Criminal Code is clear that sentences are supposed to be proportionate to the harm that has been done and the offender's responsibility for it. If we are not accomplishing that, we should be addressing that broader issue.

Senator Stratton: We have heard evidence before regarding the need to address the broader issue — the social side. While everyone in this room realizes that we have to do more, it still is a very frightening statistic that youth accused of firearm-related violent offences has increased 32 per cent since 2002 and that the attempted murder rate is up 24 per cent since 2004. You cannot come to my community of Winnipeg and tell me that we should not approach it in this fashion. I beg to disagree.

Mr. Doob: Let me go back to that. Aside from questions about particular comparisons, the question is still whether this will do anything about youth who are accused of serious violent offences with firearms. The evidence suggests that it will not. If you want to do something in order to show that some activity has occurred, that is fine. You can change any part of the Criminal Code you wish. It seems to me that the onus should be on those who are proposing changes to the Criminal Code to show that they are going to accomplish the goals set out.

Senator Cowan: Welcome, Professor Doob.

The evidence you have given today with respect to the ineffectual nature of mandatory minimum sentences as a means of deterring crime is supported by most of the witnesses we have had here, and before the House of Commons, as well. One witness that the government put forward in support of the contrary position was Professor Mauser, who is with the Institute for Canadian Urban Research Studies at Simon Fraser University. I will put to you some excerpts from his testimony. He said:

My reading of the criminological research suggests that imprisoning serious offenders is indeed effective, that increasing the number of offenders who are incarcerated acts to reduce violent crime rates. This effect is especially pronounced with homicide rates.

He refers in support of his study — and he said that he, himself, had not authored or coauthored any studies — to research conducted by Marvell and Moody. He described them as being amongst the most respected criminologists in the world. They found strong results at the national level affirming that expanding prison populations of serious or violent offenders is convincingly tied to reducing violent crime rates.

Then finally:

. . .the criminological research is quite clear: longer prison terms for serious or violent offenders have been important in the dramatic fall in violent crime in the U.S. These results support the logic behind Bill C-9, that of incarcerating those who have been convicted of serious offences, that is, punishable by prison terms of 10 years or longer.

Can you comment on the professor's testimony, those excerpts and that theme?

Mr. Doob: There is an enormous amount of research on mandatory minimum penalties. Marvell and Moody have done some on the issues of deterrence and incapacitation. Let me talk about the problem of incapacitation. I alluded to it in my initial remarks. The problem is that crime is not concentrated very well in a small number of people. It is, in fact, more widely distributed than we think. It means that, if it were concentrated, all you would have to do is find a certain number of people, lock them up and you would show a substantial reduction in crime.

Given that it is more broadly distributed, the real problem is: How many people, or how many additional people, do you have to incarcerate to get a measurable reduction? As you might expect, there are wide ranges of estimates on this.

Those estimates really do vary widely. Logically, if you take 1,000 people and put them in penitentiary for a particular period of time, they will not be committing crimes while they are there. Logically, no one can deny that if you take 1,000, 10,000, 20,000 more people in Canada and focus it a little bit on violent crime, the crime rate will be decreased — forgetting about problems of re-entry — at least while those people are there. That is the incapacitation argument.

The estimates on that argument do vary a lot. They vary from a few one hundredths of 1 per cent increase up to two tenths of 1 per cent increase in the imprisonment rate. Therefore, if you are looking for a ballpark figure, you might get something on the order of a 5 per cent to 10 per cent immediate reduction in crime if we, for example, increase the size of our prison population by 20,000 or 30,000. This seems odd since we only have 30,000 people in our prisons at the moment.

The question is this: What will we get from it? If you look it in terms of plausible increases, the problem goes back to the example of the people who were released on statutory release from our penitentiaries. If we kept all of those folks in, and they did not commit offences immediately upon release, we would reduce the violent crime rate by, perhaps, two tenths of 1 per cent. Essentially, that is a non-measurable effect.

There is a problem of the references that Professor Mauser gave to Marvell and Moody's work. Marvell and Moody have done a lot of work. I am aware of a substantial amount of it and, in anticipation of coming here, looked at some of it. However, I wish to give you an example of some of their work. This is a paper entitled Prison Population Growth and Crime Reduction.

The final two sentences of the abstract say — and I quote:

Next we regressed crime rates on prison population and conclude that, on average, at least 17 index crimes are averted per additional prisoner.

This is a very high estimate compared to anything else.

The next sentence is crucial: ``The impact is limited mainly to property crime.'' What they are suggesting is that if you lock up a high rate of property crime offenders you might get a reduction in the crime rate, because those are the high-rate offenders. I am unaware of any evidence that incapacitation is a good solution to the problem of homicide by Marvell and Moody or others. I am sure there is someone who has done such a study, but I am not aware of it.

Whether you are talking about selective or broader incapacitation, the evidence would suggest that you want to go after are these very high-rate offenders who, typically, are the property offenders.

Senator Cowan: There was another study prepared by Kessler and Levitt that was cited by then Minister Toews in support of mandatory minimum penalties. Are you familiar with their work and can you comment on the conclusions they reached?

Mr. Doob: Kessler and Levitt published a paper in 1999 that purported to suggest that a June 1982 change in California law had an impact on crime, and an impact on serious crime in particular. Steven Levitt, as most people in the room know, is a well-known economist at the University of Chicago who is one of the authors of a book called Freakonomics — which apparently sold millions of copies.

The problem with Kessler and Levitt's study is that, for reasons that I have not been able to discern, they presented data in a way that made it look as if there were a reduction in crime as a result of this introduction of harsh penalties in June 1982.

It was a perfect opportunity for deterrence to work, that is, the deterrent impact of harsh penalties. The law change came in as a result of a highly contested referendum. There were many public concerns. It was a dramatic change in the sentences that were given, in particular, for second- and third-time offenders. It came in at a particular point in time, the day after the referendum.

One of my colleagues here at the University of Ottawa, Cheryl Webster, Professor Franklin Zimring from the University of California Berkeley Law School and I looked carefully at this study. What we found, in simplest terms, is that when you look at the full set of data that deal with every year's data rather than just the years that professors Kessler and Levitt presented —

Senator Cowan: What years did they look at?

Mr. Doob: They look at the odd numbered years — for reasons we could never figure out.

When you look at the full set of years for that period of time, what you see is that the crime rates were going down prior to the change in the law. In fact, not surprisingly, the change in the law addressed those crimes that had gone up most dramatically prior to 1982. What you have, in effect, is a spike in crime that occurs from time to time. That spike starts to reduce, the law change comes in and the reduction continues.

That kind of problem is, frankly, endemic in this kind of research. The reason is an obvious political one. Legislators — or in the case of California it was ordinary citizens — are concerned about a spike in crime. They mobilize to do something about it, and by the time that legislation becomes law, crime is decreased. In particular, by ignoring the year 1980, it looked as if there was a drop in crime in Kessler and Levitt's original study. However, when we plotted the full set of years, what we found was that it was continuing at the same rate, more or less, that had started prior to the change in law.

Senator Cowan: Therefore, there is no evidence?

Mr. Doob: That study is one of the most highly cited supporting the idea that harsh sentences will deter, and quite frankly, it is one of the weakest.

Senator Baker: I should like to welcome the professor here. I always enjoy his presentations. I recall a throwaway line he had recently where he strenuously disagreed with the consideration on sentencing by a judge as to whether a guilty plea should be worth two or three years in a six-year sentence. I thought that was a very important point you made. However, you did not go into it much.

I wish to ask two questions. One has to do with your reference to section 718.1 of the Criminal Code with respect to proportionality in your response to Senator Stratton. What interests me in respect of this bill is 718.2(b) of the Criminal Code, which deals with proportionality:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

My question to you in that regard concerns a provision in this bill that deals with repeat offenders. For example, you highlighted the section respecting a repeat offender with impaired driving offences and whether there was a difference as to the period of time. I would be interested in knowing whether you have researched the Crown policy manuals of each province in Canada to find out how much they differ.

If an offence has not been committed, then the offence cannot be considered as a second or third offence as far as repetition is concerned. I reference to you the Crown Attorney's directions in Ontario that say, for example, that, in considering a sentence of impaired driving, only sentences that were convictions in the previous five years would be considered. There is no such Crown manual for three provinces in this country; therefore, offences that were committed 15 years ago are considered a second offence or a third offence.

Mr. Doob: I think what you have identified is part of the problem with sentencing. In 1996, in regard to sentencing, we brought in a set of provisions in section 718 of the Criminal Code that said sentences should take into account one or more of the following purposes. There are seven or eight purposes listed, depending on how you count them. Then we said that sentences should be proportionate, and we do not describe very well what we mean by proportionate. Therefore, we do not know how unintended harms are supposed to be counted, for example, in those circumstances.

Then what you have, as you have mentioned, is a provision that has the word ``similar'' in it more times than probably any section of law in the world.

Senator Baker: Four times.

Mr. Doob: However, it does not define what we mean by similar offences, similar offenders, similar circumstances and all those other similars.

It goes back to the first question put to me: How are we to instruct judges as to what it is they are supposed to be doing? That is, I think, the role of Parliament.

The role of Parliament is to give clear direction to judges and to the rest of us about what a sentence is supposed to look like. I do not think that the Criminal Code does that. The concern that people have, and I think it is a legitimate concern, is that they hear about a sentence — they may not have full information about it. Maybe they would be happier about it if they had full information; certainly, the research would show that. In any event, they hear about a sentence and then say that it does not seem right.

The difficulty is that some judge and presumably at least one of the counsel — and in many cases, perhaps two or three Court of Appeal judges — have said it is right. Part of the problem is that, under our Criminal Code, it would seem to me that virtually any sentence can be argued in many circumstances. We do not have a coherent system.

People look at it and say: What about that impaired driving six or ten or fifteen years ago? I think that should be part of public policy. I am old-fashioned. I think that is a role for Parliament.

My problem with Bill C-2 is that the tools you are given — in your case, to approve or not, mandatory minimum penalties — are crude and blunt instruments with which to fix the problems of sentencing. I do not think they will fix the problems of sentencing. I think they will add incoherence to them.

Part of the problem is that in every jurisdiction where this has been adequately studied, one of the things that will happen — for better or worse — is that, in certain kinds of offences that involve firearms, the prosecutor will not prove the firearm, will not introduce it. There will be a plea agreement because the mandatory minimum penalty in this circumstance does not make sense. A four-year minimum does not make sense; therefore, if you will plead to the robbery, we will not mention the firearm.

I do not think that is good either. A short sentence, which perhaps is deserving under the circumstances, in a sense goes around a loophole of the Criminal Code that says these things have to be proved. A loophole is the wrong word, but that is the way it will be seen. That will not add to public confidence in sentencing.

What we are doing is not addressing the real problems. I should like to have a serious discussion about how we accomplish proportionality in sentencing. That will be a lot harder. I would go along with the idea that you have to do something in the interim if those interim attempts were going to be effective.

The Chair: Senator Baker will want to put another question to you and we have several other senators who also want to put questions to you. Could we work on compressing responses a bit?

Senator Baker: As you know, professor, the option is given to the Crown attorney as to whether or not to enter a previous conviction upon the judgment of the court. It is one of the very few places in the Criminal Code where the Crown has that discretion. As you point out, it is helpful in sometimes rationalizing some cases.

My second point relates to your reference to the phrase ``might commit a criminal offence,'' and then reverse onus.

As you are aware, there is one very big section of the Criminal Code that has those same provisions present — in the second ground, not the tertiary ground — in which the law says ``if someone is a danger to society,'' but which has been interpreted to mean ``might commit a criminal offence.'' The reverse onus is on that person, because the person is subject to an identified section of the Criminal Code, or of the Controlled Drugs and Substances Act, under which they are placed in that situation — trafficking or conspiracy would be two examples.

That is present in section 515 of our Criminal Code, as you are aware. Can you tell the committee, in your opinion, how section 515.10(c) has been working in reality — the reverse onus, a danger to commit a criminal offence or might commit a criminal offence?

Mr. Doob: The bail laws are a compromise on two major grounds. One is ensuring that people show up for court; the second is protecting people from subsequent behaviour by the person even before he or she has been found guilty of the first one.

Senator Baker: And the third one?

Mr. Doob: After the bail laws were changed in the early 1970s, these reverse onus provisions were brought in. They were not in the original bail laws, but there was a feeling in the mid-1970s that there should be reverse onus. What we have done is added things to it.

The easiest answer I can give to your question is that when you go and sit in bail courts in most cities, at least in Ontario, what you see is a bail system where, in many circumstances, it is already a reverse onus, whether it says it in the Criminal Code or not. I do not think it is just by chance that for the last 20 years in the Ontario data, which I know better than anywhere else, we have been gradually increasing the size of our pre-trial detention population. About 67 per cent of Ontario prisoners — today, this minute — are people who are serving time without having been found guilty. We, in effect, have created this circumstance.

Aside from any principled argument against that, the other problem I have with it is sentencing. What happens in those circumstances is that at the end of that process, the person has served a certain amount of time and they are then sentenced to time served. No one knows quite what that means; certainly listening to it, you do not know what that means. Very few people understand the implications of a two-for-one sentencing scheme. We have undermined sentencing.

I would go back and say we do have problems in bail as well and let us address those. I do not think that the reverse onus provisions in Bill C-2 are the end of the world because they are already happening. They are not going to do anything. In that sense, they will not harm anything except in terms of the long term, that this is one more way in which we are punishing people without having found them guilty.

Senator De Bané: Professor, you are a member of the Centre of Criminology of the University of Toronto. You have devoted 35 years of your life to questions of criminology, particularly sentencing, imprisonment policies and public attitudes concerning the criminal justice system.

You say in your document that you have studied Bill C-2, particularly three issues: violence in our society, punishing people for what they have done; and handing down proportional punishment. You say, under those three aspects, that the bill is failing.

If you could put forward, in bullet form, the two or three reforms that you would see to tackle the issues identified by the government, how would you do it? You are an expert on sentencing and punishment. How would you deal with those? We know what the government wants, but you say that the means they are using are not the right means.

Mr. Doob: The issue of violence is huge. A one-minute version of it is this: We know there are certain social policies outside of the criminal justice system that have to do with public health, schools and disadvantaged people that could have an impact on violence. It is likely that those policies would not come necessarily to this committee, though perhaps they should come. If I were to make suggestions about how to deal with violence, I would talk mainly about things outside of the criminal justice system.

In terms of the second issue on punishing people for what they have done, I would look at the bail laws. Although bail laws might have worked at some other period of time in our history, we have an increasing pre-trial detention population, not just in Ontario but across the country. I would have fewer concerns about that if we had a coherent model of bail that kept in prison people who were clearly dangerous. For example, a substantial number of people are in prison because they violated a condition of a probation order. They have an administration of justice offence and might have a substantive offence as well. I would address the bail question so that we can come back to sentencing people after they have been found guilty and give them proportional sentences.

We made a good first start on the proportionality issue in 1986. The current problem with proportionality is that we have not defined it well. The first part of section 718 sentencing provisions can be seen, in many ways, as contradicting proportionality. I will give two perceptions, one from the right and one from the left. From the left, we say that one purpose of sentencing is to accomplish rehabilitation. Accomplishing rehabilitation might also simultaneously accomplish proportionality, and we have to decide which will come first. If we are to separate offenders from society through incapacitation, then we have to think about whether it will be within the constraints of proportionality or outside of proportionality. My view would be to stick with proportional sentences. We would have a good discussion, as we had in the Canadian Sentencing Commission, about what a serious offence is and how offences are rated for relative seriousness. That is an important discussion because there are huge differences of opinion about what the most serious offences or least serious offences are. We all tend to agree on what the most serious and least serious offences are, but those that fall between the two are difficult to determine. Giving judges direction on how to do that would be a good idea.

On proportionality, I favour the approach that we took in the Youth Criminal Justice Act, which says unambiguously that sentences should be proportional and that rehabilitative efforts have to be within the constraints of proportionality. That seems to be an important statement that we made for kids but we seem unwilling to make it for adults, which is peculiar.

Senator De Bané: Mr. Doob, I would ask for your comments on the statement by Professor Gary Mauser of Simon Fraser University. He said:

Jane Creba, who was killed in Toronto on Boxing Day last year, might still be alive had the previous government acted to keep serious offenders in jail longer. . . .

He also said that the rate of decrease of criminality in the United States is lower than it is in Canada because they imprison people more frequently and that is a better way of doing things. Again, he said that American and international research supports the wisdom of imprisoning those who have been convicted of serious crimes.

What is your view on this argument? I understand it to mean that the way to prevent crime is to put the offender in prison forever because the moment he is released from prison he might commit another crime. You provide statistics showing that one half of 1 per cent of the most dangerous offenders repeat crimes.

Mr. Doob: The simple answer to the first part of the question is that I do not know anything about the Jane Creba murder. However, I would be reluctant to conclude that, looking back, you would suggest that everyone should have been kept in prison longer. That would suggest that anyone who touches the prison system should be kept in for an indefinite period of time because at some point they might commit an offence when they leave the building. That kind of approach to the issue is not helpful. There are many ``only if'' situations. You could probably do an ``only if'' for other kinds of interventions that might have stopped that. Rather, in these circumstances one has to say that, yes, terrible offences happen and then proceed to reduce the number of those offences and to look at the most cost-effective ways to do it. Imprisoning people does not strike me as a useful way to do that.

On the second question, on the reduction of crime in the United States, the first thing to remember is that Canada also had a reduction in crime since the early to mid-1990s. To say that the crime rate has not decreased as much is to play games with numbers. My answer is: I do not know what ``more or less'' means.

I will give you a simple example. I looked at a large, multi-focused intervention program in Richmond, Virginia, that occurred in the 1990s called, Project Exile. Some of the research on either side suggested that this intervention program had been either effective or not effective. I looked at it as a Canadian to try to determine what I could learn from the program, aside from whether it worked in Richmond, Virginia. Suddenly, something occurred to me: They were talking about the substantial reduction in the homicide rate that took place. The question only was whether that reduction was due to the program. There are good reasons to believe it was not the result of Project Exile.

I tell the story because the homicide rate in Richmond, Virginia, at its peak was something in the order of 70-80 people per 100,000 in the population. Our homicide rate right is about 2 people per 100,000. Obviously, Richmond, Virginia, is an unusual city in terms of its homicide rate; but, in talking about reductions, are we talking percentage or numerical reductions? If the homicide rate is reduced from 70 to 35 per 100,000 in a city, I still will not feel safe because I am accustomed to a city where the rate is 2.5 to 3 per 100,000. We have to be careful about those kinds of statistics and statements.

The overall American and Canadian rates of crime, violent acts and, in particular, homicide over the last 30 to 40 years have tracked each other. When our rates have gone up, their rates have gone up and when theirs have gone down, ours have gone down. However, the imprisonment statistics look completely different. Theirs started to increase in about 1975 and are still on the rise whereas our rates have been relatively stable since at least 1960. When the argument that the Americans have had a big reduction arises, look at our comparable reductions on the best measure that we have on homicide and you will note that it looks pretty much the same. Certainly, it has nothing to do with imprisonment rates because ours, unlike theirs, has been quite stable.

The Chair: Do you remember what I said?

Mr. Doob: Yes; I am sorry. That will teach you about professors.

The Chair: Or, for that matter, senators. We also like to fill all the time available.

Mr. Doob: Talk about deadly combinations.

Senator Milne: I will try not either to lecture you or to have you lecture me.

When you appeared before the committee in the House of Commons, I believe that you quoted from the statistics that the Prime Minister had used on this bill, where he stated that nearly 40 per cent of crime involving firearms in Toronto in 2006 was committed by someone who was on bail, parole, temporary absence or probation. You concluded that if you had those figures, whoever collected them, you would be able to determine how many of that nearly 40 per cent were people out on bail, and so on, on firearms offences.

Have you been able to get those figures?

Mr. Doob: No, I have not.

Senator Milne: We asked here, in this committee, if the minister could produce those figures and he said he would try to do so but he has not.

Mr. Doob: No, I have not. Part of the difficulty would be that those are 2006 figures and probably some of those cases are still being litigated. People are loath to share files in those circumstances.

Senator Milne: I can imagine that.

You also quoted today the fact that the number of people in Ontario who are either out on bail or in prison awaiting a trial is so large that it far exceeds the number of people who are actually serving sentences, after their trial.

People are actually being punished right now without having been convicted. This, as you have pointed out, further undermines any kind of proportionality in sentencing. A few years ago, this committee decided, several times, that we would do a study on sentencing and, because of the pressure on legislation, we have never been able to get down to it. This lack of proportionality concerns me greatly.

There is something else about the reverse onus in this bill that concerns me. It began in the 1970s, and I see it increasingly moving away from the British common law system, where a person is innocent until they are proven guilty, and moving more and more towards the French system, where you must prove your innocence.

Would you care to comment on that?

Mr. Doob: Let me clarify one thing. In Ontario's prisons, about 65 to 70 per cent are out in the community under various forms of conditions while awaiting trial. That 65 or 70 per cent of people clearly have not been found guilty of the offence with which they are charged. That, unambiguously, challenges the presumption of innocence. They have not had the opportunity to go to court; they are awaiting trial.

In common law countries over the centuries, we have decided that we will hold people. However, how do you hold them and what are the conditions under which you make the decisions? My starting point is that where we want to hold people in custody, we must prove that they should be held. We do that when we sentence people. We say, ``You must find the person guilty.'' We then sentence them and that is the penalty that they, presumably, deserve.

Where a person is being held in pre-trial detention, however, in principle it is important for the state to have to prove to some standard that the person needs to be detained without a trial, and that we are concerned when people are not given that opportunity.

I will not say that we should reduce our pre-trial detention population to a particular number or certainly not to zero because we all understand there is a necessity to hold certain kinds of people. The problem lies in where it has been growing. In Ontario, it has been growing at a rather dramatic rate for about the last 10 years and somewhat for the last 20 years. We seem to be going in the wrong direction.

One of my colleagues and I looked at this. Whenever we show graphs on this, people say, ``That is because of guns and gangs and drugs in Ontario.'' We looked at the same graphs for women. The growth in women in custody in pre- trial detention is even more dramatic — obviously, at a lower level, but it is more dramatic than for men. That data suggests that it has nothing to do with guns and gangs and violence and drugs, and so on. It is part of our culture that we simply hold people in pre-trial detention.

The Chair: Do we know how many of these roughly 65 per cent are eventually found guilty or plead guilty?

Mr. Doob: I do have those figures, but I do not remember what they are.

The Chair: If you if you could send them to us, we would appreciate it.

Senator Di Nino: Professor, I do not think you will find any disagreement in this room or probably in any room in the country that this is a very complex and difficult problem. Furthermore, I do not think you will find disagreement that incarceration is not the only solution. You have rehabilitation and, as you said, bail laws, prevention, and so on. We do not disagree with that. We should also state that this government has introduced several initiatives in the past two years that they have been in power, primarily directed at youth in prevention and treatment.

I do think we should focus on what this is all about. Bill C-2 is really dealing with — and, in particular, the issues we are talking about here — a small number of criminals who are repeat offenders, who are violent and who should not be on the streets of any parts of Canada, particularly the communities that are being shattered by these folks on a regular basis — that is, the area I come from, which is Toronto, the GTA, and other areas such as Winnipeg.

I was struck by two comments you made: First, you made a comment that if the homicide rate in the city was reduced from 70 to 35, you would not feel very comfortable or safe. If this bill were able to reduce the rate anywhere by half, it would have accomplished more than any one of us believe it will do, although we think it is necessary and it should be done.

Concerning the other statistic that you gave us, found at page 5 of your presentation, with respect to the 5,200 people that are released on statutory releases. You said that each year about 150 of these offenders are returned to penitentiary for a violent offence. How many lives have been shattered by these 150 people? How many lives were taken? What effect has that had on the community? I say to you, sir, that if this bill accomplishes a small part of those two types of statistics that you have mentioned, then I think it will have accomplished its objective.

Would you not agree that we should do whatever we can, whatever we are legally obliged to do, to reduce the number of offences of that small group of citizens of this country — whether they are citizens or not — to keep them off the streets of our cities and towns and keep them in jail for as long as we can so they can do less damage?

Mr. Doob: I raised the issue of reducing homicide rates from 70 to 35 because I do not think that whatever the results of that study are will have much bearing on Toronto or anywhere else. A city with a homicide rate of 70 has qualitatively different concerns.

A second point is that the best evidence I have read — and I have read a number of different studies on that particular initiative — would suggest that the initiative itself had nothing to do with it. It is a circumstance where there is a spike in homicide. Of course, people jump to do something but the homicide rate would have gone down in any case.

I would agree with you. We should do whatever we can to reduce violent offences. The critical word I would emphasize is to reduce violent offences, not just simply to do things.

We are doing things because we think they will have an impact, but we know from research that they will not have an impact; we are checking off on some mythical list that we have solved the problem or contributed to solving the problem of violence.

I think we have not contributed to solving the problem of violence with this bill.

Senator Di Nino: It is also important to remind ourselves that this bill did not just come out of someone's mind. It is a result of numerous Canadians across this country knocking at the door of their elected members, who in effect listened to constituents when they spoke and passed this legislation with all-party support in the other place. That is another component of the responsibility that we as parliamentarians have. We need to respond. Would you not feel that we at least are doing our best to respond to the loud Canadian comments about this issue?

Mr. Doob: I am not a political scientist, but I think that the question has to do with what the role of Parliament is on matters such as this and whether you should be listening to constituents or also leading. In a complex policy area, it is the role of Parliament also to lead by making principled statements about what will be effective. It is not surprising to me that most people believe that mandatory minimum penalties or harsher penalties will deter. The reason most people believe that is that most public spokespeople for that say that, so the fact that those statements may be wrong is irrelevant. I would agree that if you went out on the street and asked people, ``Do you think that raising penalties will deter?'', people will say yes. That does not make it happen.

Senator Andreychuk: I want to pick up on your well-taken point that the sentencing process should be coherent. I also think that most people believe in the principle of proportionality, if they understand it. I think more lawyers and criminologists, et cetera, know that.

You take a harsh view of Bill C-2, but I look at the purpose of sentencing in our Criminal Code. Section 718 lays out that the purpose of sentencing:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

That is a broad, general, coherent statement.

However, we then added section 718.01, which said offences against children should have a heavier reliance on the objectives of denunciation and deterrence. We added 718.1 that said a sentence must be proportionate to the gravity of the offence. We then, as Senator Baker has pointed out, added section 718.2. I would not suffer the indulgence of the chair to read you all the ways we have now added to the fundamental principles you have been talking about. Section 718.2 makes all kinds of variations, such as one that was pointed out in 718.2(b): How many times can you use the word ``similar'' in one sentence?

We also added mandatory sentences, not by this legislation but by previous legislation. As you pointed out, the statistics are how you read them, whether they help or not.

If it is the role of Parliament to address this issue of sentencing and give guidance to the court, the courts also give guidance back to the Parliament whether we are constitutional within limits.

The act of using mandatory sentences or proposing them in this bill is not the first time. Parliament is struggling to get that balance. Bill C-2 is after a series of adjustments to our Criminal Code to get at this very serious issue of crime.

The government has obviously the administration of justice, and to work with the provinces, which are asking for Bill C-2. I see the House of Commons having passed this bill and I wonder what my role should be. If it were the only thing we were doing, then I would be very worried. I see this struggle of treatment, front-end loading treatment for children, then for youth offenders, then for first-time offenders and second-time offenders. I see a reliance on programs and being told that we do have treatment programs in custody. I continue to say that we should have reintegration programs, on which we should put new and greater emphasis. The government indicates that it is responding to that.

Is it your point that it is time to look at sentencing again to bring some more cohesion, or is there something in Bill C-2 that you decidedly dislike compared to the mandatories put in the 1990s and the 2000s before this bill?

Mr. Doob: My concern with Bill C-2 is really a simple one. I do not see that the provisions will address the problem that they are supposed to be addressing. I see the bill adding incoherence to an already somewhat incoherent Criminal Code set of sentencing provisions, to focus purely on that, or to bail.

What it is that you, the Senate, does is something of which I have no special expertise in this circumstance, but in the long run, whatever you do on this bill, do not fool yourself into thinking that you have done anything at all that will make any of us any safer. Whatever decisions you make will be for reasons that should not include public safety.

I should like to move to the mandatory minimum penalties. You are absolutely right. The mandatory minimum penalties have been with us since we have had a Criminal Code. The set of offences that have mandatory minimum penalties is a somewhat incoherent set itself. In 1996, the firearms ones were brought in initially.

I do not understand part of the logic that has been brought into this bill from the previous Bill C-10 of having a mandatory minimum penalty of five years for certain firearms offences and four years for others. That does not seem to make much sense, nor, frankly, is it the end of the world for me. It undermines the fact that this is not a set of provisions that was thought of in terms of its goal, which we would all agree is to reduce crime, and violent crime in particular.

That is really my concern. My concern is also that, although you have seen and debated much of this before, in the end this will not address the issues. This will make people feel as if Parliament has done something, and that feeling will be wrong.

Senator Andreychuk: As I understand it, they are tackling violent crime rather than the entire spectrum of sentencing. From all the literature I have read, I believe the kinds of options that previous governments and this government have and continue to struggle with are pretty much what you see in the Criminal Code. I was arguing about the idea of having coherence.

Do you not think that this bill will in any way reduce crime? It may not achieve the expectations that some people have of it, but do you not believe that repeat offenders being dealt with in the way they will be under this bill will remove them from society and make society more secure?

We were told by Correctional Service Canada that, if we have the opportunity to hold them longer, the treatment they can receive, which we were told is among the best in the world, if not the best, would be better than this revolving door that creates more victims and does little for the offender.

Mr. Doob: As I said in response to an earlier question, I will not argue against the logic that, if we were to increase the size of our penitentiary population by some thousands of people, these people will not be committing crimes while imprisoned.

We must look at this in two ways. First, if they are going to be released, we must do what we can to reduce the possibility of them offending at that time. Second, we have to look at this in terms of opportunity costs.

My concern about this bill is that imprisonment is a very expensive crime prevention program, that we are imprisoning large numbers of people for relatively little in return.

There are two things I would have liked to have seen instead of this bill. One is a serious discussion about what the costs of the bill are, and the second is a serious discussion with many people at the table about what they could do with that amount of money in order to reduce crime. That is the discussion I would like to have take place.

On the issue of coherence, I see this bill adding in certain ways to the incoherence of sentencing and bail rather than helping to make it more coherent.

Senator Andreychuk: The points you made about cost and considering alternatives are exactly what I have heard for 40 years that we will do. We may have done some of it, and it is not working, and we come back to using the criminal law as one tool. We then look at all other societal issues, which I strongly suspect is what we are doing here.

Senator Oliver: I have three questions that I would like to get on the record before the time expires.

In response to Senator Cowan's questions about the Levitt study, you said that you, a colleague in Ottawa and a colleague in California did a critique of the study. Did you publish your critique? If so, can you give us the citation?

Second, did Levitt have a chance to reply to your critique? If so, may we have that?

Is there anything at all good about Bill C-2? The Government of Canada has engaged the best minds it could find in Justice Canada and many other departments to come up with Bill C-2, and you have said very little, if anything, good about it. You actually asked whether we believe that the government has carefully considered other ways in which violence could be addressed in a more effective way. The answer is, clearly, yes.

I ask whether there is anything good about this bill in response to your scathing attack in saying it will have no effect whatsoever in reducing crime.

My third question is about cost. You say that it costs $94,000 a year to keep a prisoner and asked whether that money could be better spent. You would like that $94,000 spent on the hiring of an additional police officer in troubled northern communities or on ensuring that disadvantaged youths in our communities have opportunities available to them, et cetera.

We were told by Terrence Cooper, the Assistant Crown Attorney from the Ministry of the Attorney General of Ontario, that 90 per cent of the crimes committed by dangerous offenders are sexual offences. Do you think that making opportunities available to youth would solve the problem of these sexual offence crimes and make the community safe?

Mr. Doob: I brought a copy of our response to Kessler and Levitt that was published in 2006.

The Chair: The clerk will take it and copy it for all members of the committee.

Mr. Doob: In the same issue of the journal in which this was published, Professor Levitt replied to the issue, but I do not have that with me.

Senator Oliver: What is the name of the journal?

Mr. Doob: Criminology & Public Policy.

On the second question, I focused on a limited number of aspects of Bill C-2, and in those aspects that I spoke about I did not see anything that I thought would improve the criminal justice process or deal with violent crime.

Senator Oliver: Did you read the whole bill?

Mr. Doob: I have looked at the whole bill. There are areas that I know nothing about that have been discussed with previous witnesses. For example, age of consent is not an area in which I have any expertise, so I am reluctant to express views about it.

On the third issue about other uses of the money, it is true that a substantial portion of the dangerous offenders are sex offenders, and there is no question that that is where we are using the money.

As to what we could do to reduce sex offending by youth or adults, I have relatively little expertise on that. The people who do this work say that there are certain treatments they believe to be effective. I do not know much more than that about it.

The Chair: Mr. Doob, thank you very much. This has been an extremely interesting meeting. We are grateful to you for having taken the time to join us and give us your views.

The committee adjourned.