Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 7 - Evidence - May 27, 2010
OTTAWA, Thursday, May 27, 2010
The Standing Senate Committee on Social Affairs, Science and Technology met
this day at 10:30 a.m. to study Bill C-268, an Act to amend the Criminal Code
(minimum sentence for offences involving trafficking of persons under the age of
Senator Art Eggleton (Chair) in the chair.
The Chair: Good morning and welcome to the Standing Committee on
Social Affairs, Science and Technology.
We continue this morning on the topic of Bill C-268. Today we will have two
panels of witnesses who will give us two perspectives on mandatory minimum
We are starting with Michael Spratt, Director, Criminal Lawyers' Association,
and he is no stranger to Senate committees. He has appeared on behalf of the
association a number of times. He practices exclusively criminal defence law at
Webber Schroeder Goldstein Abergel, here in the city of Ottawa.
Welcome, Mr. Spratt; if you could take seven minutes for some opening
comments, and then we will have the committee engage in conversation with you.
Michael Spratt, Director, Criminal Lawyers' Association: Thank you
very much. It is a pleasure to appear before this honourable committee. The
Criminal Lawyers' Association, CLA, is a non-profit organization comprised of
over 1,000 criminal lawyers both inside and outside Ontario. We practice mainly
criminal defence work. We are routinely consulted by committees, such as this
honourable committee and provincial committees dealing with topics of the
administration of justice and the administration of legal aid, and we are
heavily involved in access-to-justice issues.
I will start by saying that the subject matter of the bill, protecting the
vulnerable of society and especially society's most vulnerable, children, is a
laudable goal. I have no quarrels with the purpose of the legislation.
Our main objection is to the use of mandatory minimum sentences. Of course,
we deal with accused people, people presumed innocent but charged with a
criminal offence. These are the people who are most directly affected by the
imposition of mandatory minimum sentences.
From our perspective, the problems with mandatory minimum sentences are many
and varied. I will start by listing a few categories.
The first main problem with mandatory minimum sentences is their utility.
There appears to be little empirical data that shows they are effective at
achieving Parliament's goal. There seems to be little evidence, or the evidence
is equivocal, that they assist in specific deterrence and general deterrence.
The second problem with mandatory minimum sentences, from our perspective, is
that they represent a one-size-fits- all solution that limits or removes
discretion from judges, and judicial discretion is very important in our system.
Limiting judicial discretion can result in unfair and unjust results.
The third problem with mandatory minimum sentences, from a practical point of
view, is that they do two things very well, neither of which is advantageous.
The first thing they do is have fewer cases resolve early. There is not much
incentive to resolve for a mandatory minimum sentence if your culpability is at
the lower end of the scale, you have no criminal record and you know that no
matter what you do after trial or if you plead guilty before trial, you will
probably be in the range of the minimum sentence.
At the same time, mandatory minimums are quite excellent for inducing pleas
when a plea might not be appropriate, inducing a resolution. I will address that
The final major problem with mandatory minimum sentences is that they can
disproportionately affect minority and other vulnerable groups.
Dealing with each of those topics on its own, I will limit my comments to the
effectiveness of mandatory minimum sentences. You have my written submission,
and it outlines some of the empirical data, and others can speak to the
empirical data better than I can. That is covered in my material, and I will not
belabour that point.
The most important point and problem with mandatory minimum sentences is that
they limit judicial discretion. That is undesirable for a number of reasons.
Judges hear the case; they hear the trial; they hear the plea. They are familiar
with the specific facts of the case. More important, they are familiar with the
personal circumstances of the offender, because of course sentencing is an
individualized process. Judges look at the offence, the circumstances of the
offence, the offender and the offender's personal information, and that allows
them to craft a just sentence that will accomplish the goals that we all want to
accomplish through sentencing: deterring the person specifically; deterring
others; and, perhaps more important, rehabilitation.
Judges are not only in the best position to craft an appropriate, fair and
just sentence, but also their decisions are reviewable. They have to provide
reasons, and if the reasons are insufficient or if either party disagrees, there
are appeal courts and a mechanism of review.
We place a great deal of trust in our judiciary. Maybe more important than
the sentencing, they are the ones who will decide whether the Crown has met its
onus — proof beyond a reasonable doubt. We place a great deal of trust in
judges, and rightly so. They are appointed by the government; they are leaders
in the legal field; and they are the cream of the crop. We are in one of the
best positions in this country. We have Crowns who are honourable, bound by
ethics; we have defence lawyers who are regulated and also have a code of
conduct we must follow; and we have judges who are well trained and are
incorruptible. In fact, as a country, often we are consulted by emerging
democracies about how to structure their judiciary and legal systems. The reason
we are consulted as a country is that our judges are incorruptible. They are
intelligent, and they are in the best position to craft just and appropriate
When mandatory minimum sentences are in place, and the discretion is removed
from the judge, there is still an exercise of discretion, but it shifts to a
non-reviewable, non-transparent form of discretion. The discretion moves to
police officers about what charge they will lay and in what circumstances they
will lay that charge. You will hear from Mr. Chaffe on behalf of the Canadian
Association of Crown Counsel, and I am sure he will tell you that a great deal
of discretion rests with Crown attorneys about what charges they will proceed
with and what plea negotiations they will enter into.
Quite often, when we are conducting plea negotiations with a Crown, it will
be a judicial pretrial with a judge who will be there to facilitate a resolution
or to narrow trial issues. That meeting is off the record, behind closed doors,
not reviewable, and, quite often, when we look at mandatory minimum sentences,
there is a great incentive for the charge that carries the mandatory minimum to
be dropped or not proceeded on by the Crown and for the accused to plead guilty
to some other charges. The accused may end up getting the same sentence, but
there is discretion with the trial judge about what sentence to impose. That
lacks the transparency and reviewability that are a hallmark of our system. Of
course, countries around the world have been moving away from mandatory minimum
sentences, and I feel it is unfortunate that we have become more dependent upon
them in recent years.
I say that the judges are in the best position to review the facts and be
acquainted with the unique circumstances of the offender. That is important
because I could sit here all day and come up with circumstances of offence and
offenders and levels of culpability. The permutations and combinations of such
are endless and, of course, would result in different sentences.
It is especially important in the context of this bill, because, perhaps
quite rightly, the offence is defined broadly. The language in the bill applies
to every person who recruits, transports, transfers, receives, holds, conceals
or harbours a person under the age of 18 or exercises control, discretion or
influence over the movement of that person for facilitating their exploitation
or exploiting them directly. That broad language may be appropriate. I do not
have any qualms with that.
However, when we look at the legal principles around being a party to an
offence, who is liable? It is not only the main player who is liable, but those
who assist him. When that is combined with the language in this bill, one can
imagine very different categories of offenders and very different offences.
One can imagine the master mind that is profiting, organized, and uses
violence and intimidation to brutalize victims. That person will receive a harsh
sentence. Whether or not there is a mandatory minimum, the sentence will be
greater than five years in all likelihood.
One can also imagine someone assisting that person. Perhaps that second
person is looking to escape a situation. He or she gets involved in transporting
or delivering the child, perhaps regrettably knowing with open eyes where the
young child is going or perhaps wilfully blind to what will happen. There are
reasons why that person is involved — not for financial gain but to escape a bad
situation. One can imagine many different examples that would result in
increased moral and legal culpability or that might perhaps mitigate someone's
Both of those people at the high end and low end of offence would be guilty.
Both would be subject to a mandatory minimum sentence. The mandatory minimum
might be a just sentence for one. Something greater than the mandatory minimum
might be a just sentence for one of those people. However, the five-year
mandatory minimum sentence might be unjust and unfair when we consider the
specific circumstances of the second, perhaps less culpable, offender.
One can sit here and think of examples all day, but we do not need to do
that. We have judges who do that. They are paid and trained to sit and hear
those specific cases.
A one-size-fits-all solution does not advance the cause of justice and, I
submit, is not a laudable goal. During the questioning period, we can speak
about some of the practicalities of mandatory minimum sentences, the incentive
to plead guilty if the charges are reduced to escape the mandatory minimum, and
the lack of incentive to plead guilty or the incentive to follow through to have
a trial if one is facing the mandatory minimum sentence. That is what we see
with mandatory minimum sentences that are already on the books.
We should be looking at ways to facilitate resolution to streamline the
process. As we all know, budgets are tight, the justice system is stretched,
delays are long, and we do not want to encourage more trials when their utility
might not be desirable.
During questioning, we can perhaps also talk about how mandatory minimum
sentences may adversely or disproportionately affect minority and disadvantaged
groups in our society. This is also in my paper.
The Chair: Thank you. We will get a chance discuss more of those
issues and flesh out some of the information you have given us in the question
You mentioned that other countries are moving away from mandatory minimum
sentencing. Can you expand on that and give examples and tell us why countries
are moving away from mandatory minimum sentences?
Mr. Spratt: Yes. The answer to this is in the written submissions and
includes citations to some studies.
For example, let us look to our closest neighbour south of the border. We are
all familiar with the three strikes law in the United States. We see Michigan
moving away from mandatory minimum sentences toward conditional sentencing,
house arrest and judicial discretion. One hopes it is being done purely for
reasons of fairness and the facilitation of a just justice system.
However, speaking practically, as the Standing Senate Committee on Legal and
Constitutional Affairs heard during the truth-in-sentencing legislation
committee hearings, mandatory minimum sentences and limiting pre-sentence
custody serve to increase the jail population and put strain on an already
The Chair: Honourable senators, I will ask you to limit yourselves to
seven minutes each, please.
Senator Ogilvie: I first want to make a couple of observations before
I go to the specific issues with regard to your submission. From my perspective
— and I will make that point clearly — I see you and your organization not as a
disinterested party. Rather, it is in your interests, professionally and
financially, to have the greatest flexibility possible with regard to sentencing
to enhance your credibility with your client pool.
Regarding your comments about judges, I wish we lived in the ideal world you
have painted. Throughout my life experience, regardless of the profession, no
one set of human beings characterizes and embodies through its entire membership
the characteristics you have assigned to judges this morning. I point out that
judges are often politically appointed, which therefore adds to the dimension we
are dealing with.
Coming directly to the nature of the bill, this case deals with a law
relating to the wilful and deliberate destruction of young lives during their
most vulnerable stages of development. These are individuals exploited through
trafficking, whether it is for the purpose we can most quickly relate to in
terms of its devastation — sexual exploitation — or to the equally long-term
damaging exploitation of physical abuse, including the deliberate removal of
organs from youth. These are acts that lead to the absolute destruction of
lives. These are not criminal activities that have a short-term impact. They
impact young people at the most critical stages of human development.
With regard to utility in deterrence, which you mentioned about minimum
sentencing, a minimum sentence keeps the perpetrator — the one now found guilty
in a court of law — from harassing the victim during at least a certain period
of time and allows some possibility of the victim being able to readjust without
that additional impact. There are many other reasons I think a minimum sentence
The idea of one-size-fits-all eliminates judicial discretion — exactly. It is
my view that there should be an elimination of that judicial discretion in these
cases for the reasons I indicated earlier.
Regarding fewer cases being resolved early, it is important to have cases
Regarding how mandatory minimums disproportionately affect minority and
vulnerable groups, I am tired of hearing the idea that someone who has
deliberately violated anyone — let alone someone as vulnerable as young people
in our society — should be looked at from a different point of view based on the
particular ethnicity or other characteristic of the perpetrator.
I do not have a question for you, although I am sure you will want to comment
on the things that I have mentioned, but I find that the arguments you have
presented are not substantial. Things like jamming the courts are not reasons to
not provide a sentence for a crime that society feels is minimally acceptable
under the circumstances.
Mr. Spratt: I will start by reiterating that we do not disagree with
the goals and the purpose of this legislation. Simply, there are other, fairer
ways to accomplish those goals than imposing mandatory minimum sentencing.
I can think of two off the top of my head. The first is making age an
aggravating factor on sentencing. Second, if you feel that the mandatory minimum
sentence should be legislated and that it will be, then there should be a
permissible departure clause allowing for, under exceptional circumstances, a
variation from that mandatory minimum. That would alleviate a great deal of my
concerns because it would restore fairness.
The CLA is not a disinterested party — you are right. I do not stand to gain
financially. I do not need enhanced credibility with my clients. I already have
credibility with my clients for this reason: I am interested in fairness and I
am interested in appropriateness.
The reason personal characteristics — not just ethnicity, but one's
background, why one committed a crime, addiction issues, and so on — are
important and need to be taken into account in sentencing is not only because it
allows for an appropriate, fair sentence, but also because it is necessary for
accomplishing the goal that we all seek, which is rehabilitation of the
When a person is in prison for a period of time, five or six years, one thing
is certain: That person will be released. If the sentence has not reflected the
individual's personal circumstances so that he or she can be adequately dealt
with, society does not benefit. The CLA is indeed interested because we are
interested in fairness and appropriateness.
Last, I will deal with your comments about judges. Yes, we do not live in an
ideal world; there are judges who make mistakes. That is why there is a review
mechanism. It is an adversarial system. That is why there is a Crown attorney
there — a well-funded Crown attorney who is able, unlike the accused in many
cases, to appeal a decision and have that decision reviewed, not just to the
Court of Appeal but to the Supreme Court to judges who are appointed, especially
at the Supreme Court now, in a more transparent way.
One cannot lose sight of the fact that these judges are at the pinnacle of
their profession. There are guidelines set by the government for who can be a
judge. They have practiced for 10 years. The process to become a judge is
rigorous; there is a committee to vet judges. These are people that we place our
trust in as a society, that I place my trust in as a criminal defence lawyer,
and that my clients ultimately have to place their trust in as the arbiter of
their guilt and innocence.
I appear before judges every day. I have appeared at the Ontario Court of
Justice, in the Superior Court of Justice and at the Court of Appeal for
Ontario. I have conducted murder trials before a jury. We cannot forget that
juries are involved in determinations of guilt or innocence as well. I would
place my faith and a determination of my guilt and innocence before a Canadian
judge any day.
Senator Callbeck: Witnesses yesterday told us that sentences imposed
on people involved in trafficking of our youth tend to be lenient. This
legislation is trying to address that. You say that mandatory minimums do not
work. I am not a fan of mandatory minimums in most situations, but if we do not
have mandatory minimums, how will we ensure that these people who are involved
with the trafficking of our youth get stiffer penalties?
Mr. Spratt: I do not know how five years was arrived at, but in the
absence of imposing a minimum number such as that, there can be a statement of
principle. The age of the person can be listed as an aggravating factor.
The problem with minimum sentences, and we see this in other offences, is
that quite often the minimum becomes the new going rate. We see that for
firearms offences all the time; people who may deserve stiffer penalties end up
receiving only the minimum.
The other problem with imposing minimum sentences is that there is an
enhanced motivation for resolution that involves something other than the
offence that the person is charged with — trafficking. For example, if you have
a client charged under this bill with trafficking in a child, and perhaps there
are some personal circumstances or some explanation that would move him to a
less serious category — because all offences have categories of culpability,
moral and legal — there might be pressure to resolve not for the offence itself,
for trafficking, but perhaps for an assault or forcible confinement or some
other type of offence. Of course, that is not in the interests of transparency
or assigning blame and responsibility.
I think I am aware of the some of the cases you are referring to, senator,
when you say there are lenient sentences. There are not very many cases out
there now that have dealt with this. The Eve case, for example, is rather new
and novel, so there may be a learning curve for both the prosecutors and the
judiciary. However, certainly there can be education, and there can be ways to
ensure that appropriate sentences are delivered, if that is what is appropriate.
We should always remember that there are forms of review. If the sentence is
grossly inadequate or is too lenient, it should be appealed. The government has
resources, and it is an important enough issue that it should be appealed.
We know for sure that mandatory minimum sentences can result in unfairness.
Senator Callbeck: If you were charged with the responsibility of
seeing that appropriate sentences are delivered, what changes would you make?
You recommend a couple of things here, but what would you do?
Mr. Spratt: There should be a statement of principle. Age should be
listed as an aggravating factor; I think it probably already would be, but it
should be legislated as such. The degree of violence or domination could be
legislated as an aggravating factor.
The most important process when we are dealing with any new legislation or
emerging issue is education. The judiciary and the public should be educated,
because it is members of the public who will put pressure on the judiciary and
Crown attorneys to seek harsher penalties. Then we can have the best of both
worlds. We can have Crowns seeking harsher penalties and judges educated about
the evils that you spoke of.
At the same time, there is some flexibility to recognize that, in some
circumstances, discretion is warranted, and it is also a valid objective. When
we are measuring goals, and this legislation represents an important goal, we
cannot lose sight of the equally important goals of judicial discretion,
proportionality and fairness in the process.
Senator Callbeck: You mention the public. You say in your brief that
it is clear that the public and legislative interest in mandatory sentencing
laws has declined. What evidence do you have of that?
Mr. Spratt: That the public's interest in mandatory minimum sentencing
has declined? Sorry, can you refer me to the page?
Senator Callbeck: Page 7.
Mr. Spratt: Thank you.
Senator Callbeck: It is in the second paragraph, the third sentence.
Mr. Spratt: That refers to a study by Julian V. Roberts that is
authored by the Department of Justice Canada, Research and Statistics Division,
from January 2005. That is where that proposition is drawn from. One might say
that a properly educated public that is aware of the problems with mandatory
minimum sentences would be even less likely to support their continued
expansion, especially when other common-law jurisdictions, our brother countries
around the world, Australia, the United Kingdom and the United States, have
moved away from such legislative practice.
The Chair: I now have an expanded list. Given the time frame we have
left for this panel, four minutes for each person gives you enough time for a
succinct question and answer. It does not give you much time for preamble.
Senator Eaton: Educate me, Mr. Spratt. Do we not have mandatory
sentences for murder, second-degree murder and manslaughter?
Mr. Spratt: There are certainly mandatory minimum sentences on the
books. Some have been struck down as unconstitutional. Some remain.
Senator Eaton: What are the ones that remain?
Mr. Spratt: They are numerous and varied right now.
Senator Eaton: Murder?
Mr. Spratt: First-degree murder.
Senator Eaton: Second-degree murder?
Mr. Spratt: Second-degree murder is a life sentence, but there is no
minimum parole ineligibility. For first-degree murder, it is a life sentence
with a 25 year parole ineligibility period. Second-degree murder is a life
sentence, so you will always be monitored by the parole board, but there is no
minimum parole ineligibility period.
Senator Eaton: Rape?
Mr. Spratt: There are no minimum sentences for sexual assault.
Senator Eaton: If a woman is raped, there are no minimum sentences. A
judge could give two years, say, if I was married to the person, or, if I was on
the street, a judge could sentence my rapist to two years?
Mr. Spratt: In the case of a sexual assault where a woman is
victimized, we trust judges to impose the correct sentence.
Senator Eaton: Would you not think that a sex offence against a child
or child labour is at least as heinous a crime as second-degree murder?
Mr. Spratt: This is the problem when we are dealing with absolutes.
One can imagine many different cases where an offender takes someone's life, and
one can imagine a great many cases where a child is subjected to unspeakable
acts. The problem with mandatory minimum sentences, and the problem I have
answering that question, is that I cannot think of all the permutations that may
Senator Eaton: I guess I lack imagination to imagine why you would
object to a minimum sentence if a child has been exploited in any way.
Mr. Spratt: I trust our judiciary.
Senator Eaton: I guess I do not completely in that regard. Can you
elaborate, if you have time, on how minimum sentencing would affect the more
vulnerable of our populations or the minority of our populations? Why do they
have extenuating circumstances that the rest of us do not?
Mr. Spratt: When we look at personal circumstances, what is empirical,
more so in the United States than in Canada but also in Canada, is that the
prison population is comprised disproportionately of certain groups. Perhaps I
will deal with the Aboriginal population, because I think that is an easier
group to deal with in the short amount of time we have. It is in fact legislated
in the Criminal Code. After the Gladue case, Aboriginal offenders are
entitled to consideration of their Aboriginal status, and that is a recognition
of their personal circumstances, their history and the specific factors in that
community that may lead to offences and should be considered upon sentencing. It
is important not only when determining culpability and the reasons for offences,
but also when determining ways to rehabilitate.
Senator Eaton: Is that not patronizing?
Mr. Spratt: The government did not seem to think so, and the Supreme
Court did not think so when specific enactments and pronouncements were made.
Senator Martin: Thank you, Mr. Spratt, for what you have presented
today. In some ways, I think we agree, but there is a lot of disagreement on the
interpretation. For instance, I agree that we have a distinguished group of
judges, and they are honourable and bound by ethics, and they are intelligent.
We all respect our judiciary, but no system is perfect.
In our current system, as you say, these cases are new. Only five sentences
have been delivered, and as Senator Callbeck has pointed out they were very
lenient by all Canadian standards regarding minors. It is not a fair system when
you have perpetrators who are adults and victims who are minors. In the
application of the Criminal Code and the provisions that were put in place in
2005, we can see what the gaps are. The gaps exist in the system. We are not
getting the kind of sentences that Canadians want to protect our children.
When you talk about accomplishing goals, whether it is fairness or
appropriateness or rehabilitation, I agree with you. However, what
rehabilitation is there for perpetrators who get a sentence where they serve
only one week or one month or one year? They have victimized these minors who
are really at a disadvantage. We agree on our goals, but clearly there are
problems in the system. Ultimately, this bill addresses those gaps.
As you say, we are learning, but in this learning curve, how many more
victims will have to pay the price? How many more families will have to suffer?
These are all vulnerable kids.
Our system is not perfect. Could you address the gaps you have seen? We may
disagree, but you can comment on what I have said. It is not a question, and
there are more things I wish to say, but I am limited in time, so I will give
the rest of the time to your response.
Mr. Spratt: The first thing I would urge this committee to consider,
and you will hear from witnesses more expert than myself on this, and there is
some reference to it in my material, is that mandatory minimum sentences do not
offer the deterrent effect.
Senator Martin: I am not talking about deterrent. Denunciation is a
The Chair: We have very little time left.
Mr. Spratt: Denunciation is a principle. I think rehabilitation and
specific deterrence are other key principles.
This is an emerging area of law. I do not think the appellate courts have
spoken on the sentences that you have referenced.
Other changes in legislation will address some of your concerns. Although I
spoke against it, the elimination of the two-for-one credit will result in
longer sentences. When we say a person received only one week for an offence, we
have to remember that the person was not sentenced to one week. I think in the
case of Eve, the offender spent over one year in horrendous pre-sentence custody
without any rehabilitation, which is not a laudable goal. When we speak about
lenient sentences, we must remember the legislative map that existed and how
that has changed with regard to the credit given to pre-sentence custody.
The bottom line is that I agree with you. This is a problem that needs to be
addressed. This is a vulnerable group. At the very least, if the government is
to mandate a minimum sentence, there should be some permissible departure clause
in the legislation that allows for the most extreme circumstances. Only in those
circumstances may a judge deviate from the minimum sentence.
Senator Plett: I want to thank Senator Ogilvie for his excellent
preamble. He said most of what I wanted to say and I echo his comments.
I want you to understand my personal feelings. My concern is not for Imani
Nakpangi. My concern is for Eve and the thousands of Eves out there. Your
concern may be for the perpetrator; mine is for the victim. I believe the
minimum sentence we have in this bill is not stiff enough.
I think your concern is addressed when you say a judge should be able to
deviate under the most severe or extreme circumstances. We have given the
minimum sentence in this bill, and the deviation from that should only be toward
the maximum sentence. You place a lot of trust in judges, and rightfully so, yet
you say these minimums will also become the maximums. If you have the confidence
in judges that you say you have, we should trust judges to increase those
minimums in a case like Imani Nakpangi where the judge would give him more than
five years. I would like to believe we have judges who would do that.
You talk about aggravating factors, such as age. The entire bill speaks to
the issue of age. This bill is directed toward youth. You say the public is
moving away from wanting minimums. You have some evidence to support that. I
speak to many members of the public, and they want stiffer sentences, not more
I would like you to address your comments about judges and why you feel they
would automatically give the offender who abused Eve five years and not ten
Mr. Spratt: In that case, the person may not receive five years.
Personal circumstances of the offender would be considered. Imani Nakpangi was a
fairly heinous case. I would have thought he would have got more; he did not.
First, I do not think the appeal court has spoken on that case.
Second, the problem with mandatory minimums is that they can decrease
transparency. Senator, you and I would both agree, and the people you speak to
would agree, that we want a transparent system. We want to know why people are
receiving sentences; we want reasons why they are receiving sentences. That is
something we can all agree on.
I deal with mandatory minimum sentences all the time for firearms offences.
There is no mandatory minimum for sexual assault. There is a mandatory minimum
for sexual interference.
I am dealing with an ongoing case involving the distribution of child
pornography. He is charged with distribution of child pornography, which has a
mandatory minimum of one year if the Crown proceeds by indictment. He is also
charged with possession of child pornography, which has a mandatory minimum of
90 days if the Crown proceeds by indictment. In that case, there is an extreme
incentive to engage in a closed-door meeting with Crown attorneys to resolve the
charges and have the charge carrying a one-year minimum dropped if the offender
pleads guilty to the offence with a 90-day minimum.
That situation happens all the time. You would not know about it unless I
told you because it happens behind closed doors. Minimum sentences result in
Senator Dyck: I agree with many of the things that have been said. I
wanted to say what Senator Plett said, that this bill is all about age. Age has
been taken into account as an aggravating factor because we are talking about
minors under the age of 18. In my speech at second reading, I thought we should
maybe incorporate different ages, because I think younger children are more
vulnerable and more likely to be more severely affected by human trafficking.
However, the interesting option occurs in that judges should be able to see
the minimum mandatory as a minimum sentence and then add to it. That is
something we should leave to the discretion of the judge. I am not opposed to
imposing a minimum mandatory sentence for this offence; it is a minimum.
Other countries like the U.S., Thailand and India all impose minimum
mandatory sentences for the sex trafficking of children. Their penalties are
higher — seven to ten years. They impose a minimum mandatory for sex
trafficking, but they do not impose a minimum mandatory for labour trafficking
That is a significant distinction. That is why I think perhaps there should
be a distinction. You talked about different types of offences. You imagined
cases of human trafficking for a minor that should not require a minimum
mandatory. If you have a minor trafficked for purposes of forced labour that was
not related to sexual exploitation, can you give us an example that might be an
Mr. Spratt: Look at the principles of being a party to an offence. A
person who is not the mastermind can be captured under this legislation. That
person may simply be travelling with a young person, bringing him or her to
Canada to hand off to another individual. It is reprehensible conduct; there is
no disagreement on that. However, there must be recognition that this person is
not the mastermind. There is no way with a mandatory minimum sentence to reflect
precisely that person's culpability and reasons for engaging in that act.
People trafficking in children for their own gratification or for monetary
gain would be in a different category than people who are wilfully blind or who
may not even know exactly what is happening. The concept of wilful blindness
exists in our legal system. They ought to have known; they should have looked
into matters. Persons who are wilfully blind to their conduct in transporting,
not arranging, and handing off that child are certainly guilty of an offence.
They are guilty of reprehensible conduct.
However, people who engage in an act like that to secure their own passage
out of a war-torn area or to secure a benefit for their family should be treated
differently from people engaging in gratuitous conduct for their personal
That is the problem with minimum sentences. Five years undoubtedly is
appropriate for the mastermind, the ringleader who is doing it gratuitously and
maliciously for his or her own benefit. I would agree with you that more than
five years would be appropriate for that person. Is a five-year minimum in all
cases an appropriate sentence for an individual who is in the lower end of moral
culpability? Can we really say that? Can you say that in every single case that
you can imagine — and be liberal and extend every benefit, every mitigating
factor to the offender you are imagining, including that the person is from a
war-torn country and is are not benefiting from the offence in any way except to
help his family out — five years is appropriate? Imagine those examples. Can you
think of one example that may not warrant five years? I suppose that is where we
Senator Seidman: I am looking at Bill C-268, to amend the Criminal
Code with respect to minimum sentences for offences involving trafficking of
persons under the age of 18 years. It is very clear. I must say I am a little
alarmed that you really do not address the specific issue of human trafficking
in your submission to our committee, nor do you do so in your conclusions. You
treat it like it is just any ordinary, mandatory minimum that we might be
Might you be familiar with the Criminal Intelligence Service Canada's 2008
strategic intelligence brief entitled "Organized Crime and Domestic Trafficking
of Persons in Canada,'' which raises the alarm that human trafficking is a
growing national problem? Indeed, it is done by well-organized networks rather
than just individuals. In the U.S., the 2009 Trafficking in Persons Report
notes that Canadian law enforcement has reported difficulty securing adequate
punishments against human traffickers.
If we can be more specific now about what we are referring to regarding
mandatory minimum sentences rather than just assuming it is comparable with any
old kind of crime, which we clearly as a committee are saying it is not, do you
feel that the criminal justice system appears to be working when it comes to
addressing the trafficking of underage girls?
Mr. Spratt: Perhaps I will start with your question that I never
addressed human trafficking, and I will. I am against it. It is bad. It should
be stopped. I do not think I disagree with anything that anyone on this
committee has said about human trafficking.
However, when we look at how we accomplish that goal, certainly imposing a
mandatory minimum sentence of five years, ten years or twenty years will
accomplish what you seek to accomplish, but one has to measure it against
fairness, against our historic position of discretion in our justice system, and
against the utility of mandatory minimum sentences. Will mandatory minimum
sentences deter these well-organized networks with masterminds offshore who send
Again, I would urge this committee to hear from the people who have done
studies on this, but mandatory minimum sentences do not provide general
deterrence. If this committee and if Parliament clearly say, "We understand
that mandatory minimums do not provide deterrence and that they can lead to
unfair results, but we are imposing a mandatory minimum sentence because this is
about punishment and denunciation,'' that is fine. It will likely be
constitutional. There will be specific constitutional challenges in cases where
the specific circumstances merit it, but if we want to concentrate on punishment
and denunciation above the other paramount goals of proportionality,
rehabilitation and deterrence, that is fine, and let us say so.
However, I am here to tell you that mandatory minimum sentences do not lead
to transparent results. The evidence seems to say they do not offer deterrence.
Mandatory minimum sentences will result in more trials, and they will capture
people in an unfair way and lead to unjust results. In the end, we need not
engage in this debate, because as someone who appears before judges on a daily
basis, I can tell you that we do not need to impose mandatory minimum sentences
because our judiciary is in the best position to ensure that there are
Senator Seidman: You keep talking about evidence. I would like to know
exactly how many studies and what kind of studies demonstrate this conclusive
evidence that mandatory minimum sentences do not work.
Mr. Spratt: I have cited some of those studies in the paper.
Senator Seidman: How many?
Mr. Spratt: I do not have a number to give you. I have cited them in
the paper. You can refer to those. The point I would make is that if as a
country and as a government we are moving away from our historic position of
discretion and fairness, then it should not be my job to present this committee
with studies, but the government should be in a position to tell me why we are
departing from that. I have yet to see a study that says that mandatory minimum
sentences are a better deterrent than the alternatives.
Senator Demers: Thank you for being here this morning. I lived in the
United States for 21 years. I am not a lawyer, but I have friends. The United
States seem to be harsher, if you want. Not being disrespectful, I think the
sentencing is sometimes a joke. The victims seem to have less leeway than the
person who committed the crime. They are often candy sentences. Recently,
someone was arrested 15 times for drunk driving, and he killed someone, and
finally now he is going to get it. We have an artist, whose name I do not have
to mention, who was attacked by her agent for years when she was eight, ten or
twelve years old. She is totally screwed up in life, and he is out playing golf.
That is just an example, because I am limited in time, and I certainly respect
Senator Eggleton's time. Are we going around the table and running around? Is
anyone listening? To me, I think it is a joke. I see guys coming out of jail,
because I have done some speaking engagements in jail, and they have a better
life than the victims. That is all I have to say.
The Chair: Do you have a brief comment?
Mr. Spratt: Drunk driving is a bad crime; 15 times is deplorable; and
there are mandatory minimum sentences for second, third and fourth offences for
drunk driving. Obviously they did not work.
Senator Hubley: Mr. Spratt, I go back to your main objection to
mandatory minimums, which is limiting judicial discretion. You did mention that
you might like to comment on the actual practicalities of mandatory minimum
sentences and the discretion that may then be exercised by Crown attorneys or
the police. Would you highlight what problems might arise because we are
limiting our judicial discretion with mandatory minimums and what problems
might, because of practicalities, be picked up at some other level of the legal
system? Would you like to comment on that or give other examples?
Mr. Spratt: The best example one can give about mandatory minimum
sentences and Crown discretion is that the Crowns are honourable people. They do
a good job. I deal with them every day. You will hear from Mr. Chaffe after me.
I have appeared on committees with him before and there is no better person to
However, when we remove discretion from judges and place it in unreviewable
hands, that is not something we should strive for. Firearm offences are the best
example. There is a four-year mandatory minimum for a robbery committed with a
firearm. Of course, when you commit a robbery with a firearm, there are many
other charges you are charged with — possession of a firearm, assault — offences
that may not carry the same mandatory minimum sentences.
Quite often, the Crown will exercise its discretion and not prove that the
firearm is a firearm. There will be an agreement that it was an imitation
firearm, which has a lesser mandatory minimum sentence. That achieves a goal for
an offender who commits an offence and wants to accept responsibility but finds
for whatever reason that four years is unpalatable. Maybe it is too long for the
offender, or maybe there are personal circumstances that may justify something
less than that.
In that case, it is an incentive for the person to resolve, which is
laudable, because four years may not be appropriate. At the same time, we are
trusting Crown attorneys to exercise that discretion about what charge to
proceed on and what to prove. Again, they are all honourable people, but at the
same time, it seems ironic that we are placing discretion in the unreviewable
hands of a Crown attorney and removing it from the reviewable hands of a judge.
That is an inevitability that will occur. I do not think that as a society we
should strive towards that.
The Chair: On that note, I will say thank you on behalf of the
committee, Mr. Spratt, for your presentation and comments.
Mr. Spratt: Thank you very much.
The Chair: Next we welcome Jamie Chaffe, President of the Canadian
Association of Crown Counsel, which he has been since of April 2008. Prior to
that, he had a distinguished career with the Ontario Crown Attorneys'
Association, where he was also president at one time.
Jamie Chaffe, President, Canadian Association of Crown Counsel: Thank
you. I will be exceedingly brief with my opening comments. I hope to be of some
assistance to this committee on this very interesting topic. Thank you very much
for inviting the Canadian Association of Crown Counsel, CACC.
Our organization is comprised of Crown prosecutors and civil lawyers employed
by the Crown in the federal government and in each of the provinces. These
member organizations represent front-line prosecutors in each province and with
the federal Public Prosecution Service of Canada and the Department of Justice.
The CACC represents the interests of these prosecutors to the respective
ministries of justice and to the justice system at large at a national level.
When the CACC makes comments on a proposed piece of legislation, it does so from
an apolitical, non-partisan perspective, as befits our role as quasi-judicial
officials in the Canadian judicial system. We do not comment on whether a
particular proposed change to the law reflects good or bad policy, but we strive
to provide input on the likely systemic impact of the change on the ground from
the perspective of a front-line prosecutor. We are strongly of the view that
this perspective is critical to your work in making law.
In preparation for these submissions, each provincial and federal prosecuting
attorneys association was canvassed regarding its views and the likely impact of
Bill C-268. We have tried to analyze and predict the impact of this bill on the
practical areas of day-to-day practice in the Canadian criminal justice system.
Bill C-268 would create new minimum jail terms for persons charged under the
human trafficking sections of the Criminal Code. All jurisdictions are of the
view that, to the extent that these charges arise, and it seems apparent that
they are arising more frequently, these mandatory minimum sentences will reduce
guilty pleas to such charges and will increase the rate at which these matters
go to trial.
We also expect that Bill C-268 will increase the workload of the sentencing
hearing stage. We anticipate that there will be work for our trial prosecutors
on appeal grounds as the new provisions are challenged constitutionally.
As with the other recent Criminal Code amendments that have enshrined new
offences, new mandatory minimums and new procedures for dangerous offender
designations, Bill C-268 will lead to a significantly increased trial rate and
fewer guilty pleas. This is important for jurisdictions that have workloads that
are already over capacity and where there is a significant delay between the
date of the charge and the trial date.
Bill C-268 may result in a necessary adjustment of sentencing and sentence.
In these overburdened jurisdictions, Crown prosecutors and pretrial judges may
well need to offer lower sentences or diversion to offenders charged with other
offences to compensate for the reduction of trial capacity caused by this new
added trial load.
Where such work pressures exist, Crown prosecutors will need to create trial
capacity and will likely do so by triaging non-violent cases out of the trial
courts, usually cases that involve offences against property. Absent an increase
in funding to add sufficient criminal justice infrastructure to support this
legislation — and by that I mean more prosecutors, courts, judges, probation and
parole officers and correction officers — these new provisions represent a new
focus for the criminal justice system that would necessarily be resourced out of
and at the expense of prosecutions of other criminal offences.
The Chair: You said that this will result in an increase in rates of
people going to trial; there will be fewer guilty pleas. It would also add to an
overburdened system now, and you say it requires more money. I understand it
from that perspective, but what about the perspective of public security?
I think many people are saying we want to protect the public, quite aside
from the punishment factor; whether it is appropriate to have stiffer penalties,
there is the question of security of the public. Does it add to the security of
the public to have these mandatory minimums?
Mr. Chaffe: I think adding mandatory minimums forces a refocus of the
limited resources of the criminal justice system to charges that will attract
trial time. We are not in a position to comment with respect to good or bad
policy around enactment of legislation. The point we are trying to make is that,
good or bad, mandatory minimums will necessarily refocus limited resources on
criminal charges to those charges that attract the minimum sentences. In order
to support that with the limited trial capacity we have, because it is a closed
and limited system, we necessarily have to triage other charges out to create
I am not sure I answered your question in the spirit in which it was asked,
but I have to be careful not to comment on policy. Let me explain the role a
little more clearly to you, if I can have your indulgence. It is not just that
Crown prosecutors across the country may disagree with respect to policy —
whether a law is a good one or not. We have a unique role in the criminal
justice system. We are quasi-judicial officials. Our overarching obligation is
to see that justice is done. It is our role, pursuant to the oaths we have
sworn, to support the rule of law. Another of the key foundational obligations
that Crowns have is to carry the law into effect. Once a federal piece of
criminal legislation is passed into law, it is our job to carry it into effect.
On a day-to-day basis, as a prosecutor stands in trial court looking at his
trial list or looking at the month of prosecutions he has to prosecute, he is
the meat in the sandwich around what cases get priority and what cases he has to
create trial capacity for. I do not think there is any particular role in the
criminal justice system that is more attuned to the issue that you raised with
respect to public safety. Our great challenge is to achieve it with the limited
resources we have.
The Chair: Nothing in this bill specifically gives you additional
resources, but if you do not get resources, what is the ramification of that?
Does that mean some of these people go free — that time will expire for bringing
them to justice if it is an overburdened system? What is the ramification of
your not getting the additional funds?
Mr. Chaffe: I would not suggest that people charged with these
particular offences would go free. What the mandatory minimum would ensure would
be a trial. It would be less likely that counsel and accused would enter a plea
Once we have a trial, we are into a very challenging case for the Crown,
particularly in these types of offences. We are dealing with witnesses who are
young and often who have suffered post-traumatic stress — stress certainly. We
have issues around interpretation and translators; we have issues around memory.
If the victims are unwilling participants in the sex trade, we will experience
all the credibility baggage that might be exploited in an ordinary case.
The Chair: It sounds like a longer process. It may not mean that
someone would go free who otherwise would not, but a longer, more extended
process is likely to come out of this. Is that what you are saying?
Mr. Chaffe: These are difficult cases to prosecute; and let us
remember that there are not that many on the books currently. There may be as
many as 32 before the courts now. Between 2007 and 2008, we had 13 charges of
sexual exploitation under the old charges. It is not a huge part of our charge
menu as prosecutors, but it appears to be increasing relatively quickly.
The Chair: We have heard here today and we are constantly hearing
about people who, according to the public, are getting off easy, getting light
sentences. That is what drives this kind of thing — a concern that people who
are doing terrible things are getting off lightly.
We never seem to hear the reasons why a judge decides to have a shorter
sentence than maybe what others would think would be justified. Why is that? Is
it a question that there is not enough transparency or that judges are just
going by the going rate? If there are reasons to give a shorter sentence, why do
we not hear about them so that the public can get a better understanding of what
appear to be terribly short sentences in some of these cases?
Mr. Chaffe: I guess it depends on the individual case, but I
appreciate the spirit of your question. If members of the public were to sit in
court anywhere in Canada, they would hear the reasons for any particular
sentence. They would understand that often the judges are trying to balance the
facts and the existing sentencing law that is before them on that individual
case. Sentencing cases are individual exercises with respect to what is
appropriate and what is not.
It is becoming more apparent, certainly over the last 15 years, due largely
to a chronic underfunding of the criminal justice system, that the prosecutorial
agencies and the courts need to create trial capacity for the most violent
offences that are in our charge menus. We need to create time for those. We do
not have enough capacity, so inevitably we have to triage the cases that are not
a prosecutorial priority, which results in some sort of plea negotiation
involving, largely, property offences.
Senator Plett: You said your prime objective is that justice is done.
Probably we would all agree that that is our objective as well, and we need to
determine what direction we go to get that done.
I am one of those good old boys who do not care about the perpetrator, but I
care about the victim. I believe that this is one way of ensuring that the
victims get compensated in some way for the horrendous crimes that they have
been put through.
When something is not broken, you do not fix it. However, I think Eve is an
indication that what we have now is not working. When someone like Imani
Nakpangi gets a little over a year in jail, that is not acceptable, and
something needs to be done.
I make this next comment with the highest respect for you and the work you
do: I really do not care about the workload. I do not care if our courts are
overworked. We still need to ensure that we do the right thing by the victims.
It is easy for me to say that if you do not have enough lawyers, hire more
lawyers or get more funding. Maybe that is a job this committee or others will
have to work on down the road, if our courts are more overworked than they are
currently, to get more funding.
However, we hear the argument over and over again that we cannot put people
in jail because the jails are overcrowded. Who cares? Put another bunk in the
cell. Double them up; triple them up. Senator Demers mentioned the conditions in
some of our jails earlier. We are not here to worry about whether these guys
have it tough in jail.
If the workload is too much, maybe some of these cases will move a little
faster. We heard from a defence lawyer in the first panel. I believe one reason
that everyone is overworked is because of the way these defence lawyers can
stall things. Maybe that is simplistic.
I do not have a question for you other than these comments. I care only about
the victim. I do not care about the perpetrator. I do not care about the courts
and how overworked our lawyers are. I do not care about how overworked we are.
I care about the Eves of the world. I believe this bill takes one step
towards compensating some of that. If you want to comment, I would appreciate
it, but there was no question.
Mr. Chaffe: I do not think the criminal justice system is terribly
complicated. It is like any other system; it can operate at a certain capacity.
There is not a Crown attorney in this country who is afraid of hard work. Many
of my colleagues in many jurisdictions of Canada are working to the breaking
point and beyond.
However, there comes a time when there is only so much work that you can
physically force into a system. When we are at capacity or over capacity,
lawmakers need to be concerned about the laws they write. If laws are not
supported by the resources required to move them through the system, you will
witness apparent results.
That is a reality lawmakers must grapple with. The criminal justice system is
chronically underfunded. We cannot make enough cars with the production
facilities we have. You want us to make a lot of good cars. We have only three
or four production lines; we need many more. We need the criminal justice
infrastructure to support the kinds of laws that you are currently drafting.
That is very important for everyone concerned with just results.
With respect to prisons, it is obviously not satisfactory simply to add more
bunks. That has already led to apparent results in terms of three-to-one and
four-to-one ratios, which you tried to address with legislation. It did not
address the root cause. The root cause is that there were not enough facilities
in the first place.
From the perspective of Crown attorneys across the country, it is essential
that there are sufficient resources to support the legislation you are drafting.
Senator Plett: I again want to say that I have the highest respect for
the work that you do. In no way did I want to imply that you and all of your
colleagues are not working hard. I appreciate all of the work you do. The onus
might be on us somehow to generate more funding so that you can hire more people
to continue to do the good work you do. Thank you.
Mr. Chaffe: I did not take it that way, senator.
Senator Eaton: We have heard several times that trafficking and
exploitation against children are rather new crimes that we are not as familiar
with, but I think they have always been there. They were simply more hidden, and
they are now becoming apparent.
As a Crown attorney, would you not note or emphasize the seriousness of a
crime like sexual exploitation or forced labour of a child? Mandatory minimum
sentences are a strong optic to the court system that this is a serious crime.
These are offences that should be given time and consideration like
second-degree murder and manslaughter are considered serious crimes.
Mr. Chaffe: Crown attorneys take these crimes extremely seriously. We
do not yet have a critical mass of prosecutions to have developed any extensive
body of sentencing law around.
I do not want to comment with respect to the goodness or badness of mandatory
Senator Eaton: I am not asking you that. I am talking about the
optics; if the offences exist, the mandatory minimums force you, as a Crown
attorney, to think this is as important as the manslaughter of Senator Dyck or
the second-degree murder of Senator Eaton. This is not something that can be
sloughed off because it is a child or a17- year-old Aboriginal woman.
Mr. Chaffe: I suspect it would have little impact on the perspective
of Crown attorneys. The facts speak for themselves. These are heinous offences.
I expect that Crown attorneys, presented with the facts that you present, would
seek significant sentences.
I am not prepared to comment on optics, but every day, Crown attorneys deal
with serious offences in our system. We try hard to carve out the trial capacity
and time in the criminal justice system to deal with the most heinous offences.
It is obvious to everyone that these offences are included in that.
Senator Eaton: I probably misused the word "optics.'' I meant that it
strikes the imagination of the court that the public takes this crime very
seriously. Up to now, that has not been the case. Perhaps Crown attorneys have
taken the offences seriously, but the few judgments that we have had do not seem
Mr. Chaffe: I am not prepared to comment on judgments made by the
courts, particularly when I am unaware of the facts.
Senator Eaton: Mr. Spratt talked about the rehabilitation of sex
offenders. What is the success rate in rehabilitating sex offenders in jail?
Mr. Chaffe: I am not aware of those statistics. I know there are
various categories of sex offenders.
Senator Eaton: I would have thought a Crown attorney would have some
idea about the likelihood of rehabilitation before he asked for a sentence.
Mr. Chaffe: I would expect to have some sort of psychiatric assessment
if it was appropriate in the circumstances to tell me what kind of offender he
is, whether it is possible for rehabilitation or whether that possibility is
beyond the scope of psychiatric treatment as it exists today. Certainly we would
have that kind of information for the most serious offences.
Senator Eaton: Are there no statistics?
Mr. Chaffe: I am sure there are statistics, but I do not have them at
Senator Martin: I am trying to stay focused on the realities and the
perspective you bring rather than give you too many hypothetical situations to
respond to, but I have one hypothetical question.
You mentioned how challenging cases of human trafficking of minors and sexual
exploitation cases are due to the victims being too young or perhaps having
lapses of memory or trauma. You try to have support from families or others.
These are challenging cases, given the clandestine nature of these types of
Without the mandatory minimums, without Bill C-268 and under the current
laws, how difficult is it to bring these cases to trial? I heard you say that
mandatory minimum penalties would ensure that the accused went to trial, but
right now, with the challenging factors involved in these cases, how difficult
is it to get to trial?
Mr. Chaffe: We do not have a tremendous amount of experience with
human trafficking cases. A witness yesterday updated my knowledge of how many
cases there are before the courts of Canada, a total of 32 currently. These
cases are in that category of the most difficult cases to prosecute. You are
dealing with children under the age of 18. They come from extraordinarily
difficult circumstances. They probably do not speak the same language that the
prosecutor or the court does. They will need interpreters and translators. They
will need extensive support from witness organizations to get ready to testify
in court. They will require extensive preparation with the Crown attorney to
prepare them to go to court. They will need supports to live in Canada while the
prosecution is ongoing. They will likely need psychological supports for to the
trauma they have endured. If they have had significant stress during the offence
time period, they may well exhibit issues with respect to memory, which is often
a problem with children in any event and particularly when trauma is added.
That is just the victim. With respect to the prosecution overall from a legal
standpoint, extensive consultation will be required with the police that are
thinking about laying the charges. The police resources out there are limited.
The RCMP has I think six regional centres and 160 officers that are prepared to
look at this. After that, you are looking at the particular police forces across
the country that may come across this type of offence.
Witnesses like this are often culturally reluctant to speak to the
authorities, depending on which country they have come from. They may not be
willing witnesses in any event.
These are very difficult, labour-intensive prosecutions. Just adding a
translator for the purpose of the trial would double the length of the time that
you are using the translator.
To say that they are labour intensive I think is an understatement. They are
difficult cases to bring. That being said, there are already provisions in the
Criminal Code that help us deal with child victims. There have been developments
around the law of evidence that assist us in getting statements before the court
when witnesses are reluctant to testify.
It should be apparent to everyone that these are extraordinarily difficult,
labour-intensive cases. The more we get, the more resources they take. We are
just talking about prosecutorial resources here at the front end. We are talking
about extensive police resources, victim witness support services and
prosecutorial services. For these prosecutions to be successful, they need to be
properly resourced. We need the proper training and expertise and the time to
devote to these types of cases, which is often the greatest challenge.
Senator Martin: The RCMP officers who testified before our committee
yesterday said that the 34 cases before the courts all involve Canadians. When
you speak about victims who do not speak the language, how many more are out
there that we have not been able to bring to this point because of those
challenges of which you speak?
In terms of the multi-faceted aspect and the overall challenge of this very
important issue of human trafficking, this bill is a key step, but we know that
it is not the end; it is the beginning of many other things that we must do as a
country, as a system with many, many partners. We did hear from some of those
important partners yesterday.
You said that right now you are at capacity, and that without mandatory
minimums, because of the difficult nature of these cases, they may not even get
to trial. You have to do so much groundwork. The mandatory minimum ensures that
it goes to trial. Am I misinterpreting your point?
Mr. Chaffe: I do not think you are. I am sorry to interrupt.
Senator Martin: In an ideal world, if we were to build that capacity,
would that ensure these cases would face trial?
Mr. Chaffe: With respect to these matters more likely going to trial
than not, there are not many accused who would plead guilty with a six-year or
five-year sentence. It has been our experience across the country that they
would rather take their chances at trial. When dealing with vulnerable victims,
that is often a risk they are prepared to take. Will they get more after a
conviction? Will the witness stand up in court? Will the Crown be able to adduce
enough evidence to prove the charge beyond a reasonable doubt? It is less likely
that the accused will plead guilty to these types of charges if there is a
Your consideration should be separate. How difficult the cases are to mount
is the challenge for the prosecution, but that is something that we are uniquely
interested in doing.
Senator Champagne: I am trying to take all the information we have had
in the last little while about this bill and to funnel it somehow in my mind to
At one point we were told to trust the judges. They will come up with the
appropriate sentences. You do not need to have a minimum sentence. Leave it to
the discretion of the judge.
You say if we do not have a minimum sentence, some of the perpetrators would
plead guilty and try to get away with a lighter sentence. You say if we go to
trial, it is difficult to prove the guilt of the person.
Why do we come to this? People around us, people in the street want this type
of minimum sentence. If you count the time that the accused was in jail before
the trial, it counts two for one. Someone who has been found guilty of an
offence towards a child or a very young woman for two, three or five years, will
end up with a year's sentence or a week; they serve a sixth of their sentence
and they are out; or is it a fifth? I am not a lawyer, as you can see. I know
this is what happens.
We get to a point where we, meaning Mr. and Ms. Anyone, need a minimum
sentence; otherwise people who are guilty will go free and be ready to start
again. I was asked yesterday, "How about lashes, five lashes a week or
something like that for the year they are in jail''? As a Crown counsel, do you
have a problem to get a guilty verdict and convince the judge to impose a very
stiff sentence on people who attack children? Is that why we are seeing people
being for the minimum sentence?
Mr. Chaffe: I do not think I can answer that question. I do not
profess to have any prescience with respect to how individual people feel about
the criminal justice system.
Senator Champagne: It is our job to ask people in the street.
Mr. Chaffe: I am sure your body is far more attuned to that than I am.
However, in my experience in the criminal justice system, sentences follow
facts. The key thing for a prosecutor and for a judge, when they are seeking a
particular sentence in a sentencing hearing, is to be able to adduce sufficient
evidence to justify it. Trials are expensive. The gathering of evidence is
Senator Champagne: It is expensive for people in our society, for my
granddaughter or a young person to perhaps be stuck in a situation where he or
she might be a victim of trafficking. This is also very expensive emotionally
Mr. Chaffe: I agree.
Senator Champagne: As Senator Plett said, cost is not the right reason
to not proceed with a minimum sentence. Is the financial cost the main reason
why you would suggest or hope that Bill C-268 not become the law of the land?
Mr. Chaffe: We are not taking a position on Bill C-268. We are trying
to help this committee with what the impact will be on the ground for front-line
prosecutors: We anticipate that we will not be able to negotiate a plea on
these. We will go to trial with them. After trial we will seek an appropriate
The frustration I hear from you — and we often hear from victims' groups —
may well be a symptom of a criminal justice system that just does not have the
resources necessary to deliver the justice people are expecting. It may be a
symptom also of an absence of knowledge about how the system works, what the
facts were and what the sentencing laws are in Canada. I am speculating wildly
at this point, and I can imagine my member organizations across the country
flinching with every word I go down this path.
I do not think I can help you with respect to the source of frustration that
you are hearing. I have a personal view, but I am not here to talk about that.
Senator Champagne: Allow me to say that I am at a loss when I see that
Crown counsel and criminal lawyers both advise against minimum sentences. You do
not say it in so many words, I know that, but allow me the feeling that you were
saying something like, "Are you sure you want to do that?'' I am worried that
both sides of the fence are not enthusiastic about this bill.
Mr. Chaffe: Do not misunderstand our presentation. If you take
anything from this presentation, you should take this: If this law is passed we
will need sufficient resources to carry that law into effect. That is what we
Senator Dyck: Thank you for your presentation, Mr. Chaffe. This is a
very difficult issue we are dealing with. All of us are thinking carefully about
the victims of human trafficking. We have all received many letters and email
messages from people across the country who are concerned about the trafficking
of minors. They seem to be almost entirely concerned with trafficking for the
purposes of sexual exploitation in the commercial sex trade.
My concern about mandatory minimum sentences is whether we are actually doing
justice for the victims of those who are being trafficked for the sex trade.
That seems to be all the cases that have happened in Canada so far — minors
trafficked into the sex trade. Is it fair to them to equate their experiences
with those who are trafficked for the purposes of other types of forced labour?
Can you give an opinion on whether you think the offences are similar enough
that they should get the same sentence?
Mr. Chaffe: I am sure that we can all envisage circumstances where
there would not appear to be parity between a factual situation and the sentence
applied. With respect to the law as it is drafted, it would appear that forced
labour would fit under the proposed legislation. The goal of the criminal
justice system, in terms of sentencing, is to give an appropriate and just
sentence with respect to particular facts. There cannot be much argument that
there is less discretion around that with a mandatory minimum. Apart from that,
I do not think I can add much more.
Senator Dyck: It was also stated yesterday that it is difficult to
prove the offence of living off the avails of a person under the age of 18 who
has been prostituted. Would that be more difficult to prove than the offence
envisioned in Bill C-268?
Mr. Chaffe: It really depends on the facts of the specific case. I can
think of circumstances where it would be and circumstances where it would not.
That kind of question really comes down to an individual case.
Senator Dyck: Generally speaking, you cannot say that trying to prove
the offence of living off the avails of someone who is prostituted under the age
of 18 is more difficult, necessarily, than the envisioned offence in Bill C-268?
There is no guarantee that this law would be easier to prove?
Mr. Chaffe: Bill C-268 is more expansive, certainly. The definition of
exploitation appears to afford a more expansive net around certain facts. I
suppose, if that is where the comment came from yesterday, I could understand
that. It is not as narrow as living off the avails, for sure.
Senator Dyck: You pointed out this morning that having a mandatory
minimum sentence actually might be harder on the victim because the victim then
has to appear in court. If the person pleaded guilty to a lesser charge, the
victim would not necessarily have to appear?
Mr. Chaffe: If there is a guilty plea, the victim would not have to
testify. A victim impact statement would invariably be filed by the prosecution,
but that is one of the considerations that prosecutors take into account when
they are assessing the strength of their case. It is one of the considerations
that trial courts take into account when they are looking at mitigation of
sentence. That is one of the ways that accused persons mitigate their sentence,
by not putting the victim through a criminal trial, which, at best, is a very
unpleasant thing for a victim.
Senator Callbeck: Mr. Chaffe, the witness who was here before you — I
know you were present during his testimony — gave us a brief. In that brief are
a couple of amendments that he felt the committee should consider, which we did
not discuss while he was here. I would like to get your comments on them. The
first is a legislative review date. He mentioned that this legislation should be
looked at, possibly in five years, to see whether it is really working.
Mr. Chaffe: I am not sure that is within my purview to comment on,
Senator Callbeck: The next one maybe is not for you to comment on
either. It is on a permissible departure clause. In other words, the judge would
be able to depart from mandatory minimums in exceptional cases.
Mr. Chaffe: I am not going to be very helpful on that either, although
I think the Supreme Court has commented with respect to those types of clauses.
The name of the case escapes me at this point, but one of the Supreme Court of
Canada cases deals with the constitutional challenge to mandatory minimums. I
believe it stands for the proposition that that sort of exception would
undermine the purpose of the legislation.
I cannot elaborate any more than that because I have not read the case in
some time. There is always a chance that I am wrong about that. If I can find
the case, I will be happy to submit it to the committee. Apart from that, I
cannot be of much help.
Senator Plett: You have said a couple of times that your report here
today was not supposed to indicate whether you are in favour of or opposed to
this bill. My suggestion would be that your report has not said very many
positive things about the bill, so I would take from that that you certainly are
not supportive of it.
Mr. Chaffe: I would not take that from it. All we are trying to point
out is what impact this particular piece of proposed legislation would have on
Senator Plett: Senator Martin tried to ask this question and did not
get an answer, and maybe I will not either. If we had the resources, if we had
the money, if that was not an issue and we had the prosecutors — it is
hypothetical, I know — would you be a little more supportive of this bill?
Mr. Chaffe: I take issue with the idea that we are being unsupportive
or supportive of the bill.
Senator Plett: Would you be supportive of the bill?
Mr. Chaffe: I would have to take that back to the member organizations
across the country. It would be my expectation that we would come back and say
this would have little systemic impact upon front-line prosecutors if we had the
resources to proceed. Senator Plett, please understand my comments. The impact
would not necessarily be on the prosecutions under this particular piece of
legislation. It would be on our ability to prosecute all those other areas of
the Criminal Code that we have to triage away from the criminal justice system
to create capacity for human trafficking cases. That is the point I am trying to
make here. If we stick by our principle of commenting only on systemic impact,
there would not be much of a systemic impact if it was properly resourced.
Senator Plett: You have said that mandatory minimums will clearly
create more trials; more cases will go to trial because you cannot do plea
bargains. My suggestion is that you could still do a plea bargain. You could
tell the perpetrator that if he does not plead guilty, you will go after ten
years instead of five; that might be a little motivation for him to want to
Mr. Chaffe: That might be a tactic that I might take in a particular
case, but commenting systemically on this legislation, I cannot help you with a
response to that comment.
Senator Plett: It was my observation. Thank you very much.
The Chair: Let me throw in one other question. You are saying that
there are cases where, with plea bargaining, a guilty verdict would be entered
and a sentence would be worked out that might be two years; but that if there is
a minimum of five years, the case is more likely — not definitely, given what
Senator Plett just said — to go to a full trial.
The difference between those two scenarios is that the victim does not have
to go before the court and go through an agonizing situation in the plea bargain
scenario, but if there is no plea bargain because the accused thinks he or she
can get off or does not want to face the five years, then the victim is required
to go in. You are saying that is a more risky circumstance because of the
psychological factors, the language factors and various other things, such as
the memory factors, that come into play. Does that sum up what you have said on
Mr. Chaffe: No. Plea bargaining is a very difficult thing that we have
to engage in within our system every day. It is an appropriate exercise of the
discretion we have as Crown Attorneys; and it that takes part not just between
counsels but also in counsel pretrials with judges.
Many factors go into a plea bargain. A reasonable prospect of conviction is
one of them. Whether there is a public interest in prosecuting a particular case
is another. Obviously, the reasonable prospect aspect takes into account all of
the frailties of the Crown case, including the strength of witnesses and their
ability to give evidence in court. A plethora of factors go into any sort of
When I was speaking of risk, I was trying to put myself in the shoes of an
accused person. It is a useful way to analyze the impact of some legislation. It
is about managing your risk when you are accused of something. What are my best
chances of success? I am in this particular situation; if I plead guilty, I will
get five years. Do I want to take the risk? Do I want to roll the dice that I
will get more after a trial when there is a possibility that the Crown may not
be able to prove its case beyond a reasonable doubt?
Regarding incentives and the incentive to plead guilty or not, I think
mandatory minimums have a powerful impact on the mindset of an accused. It has
been our experience that there will be fewer guilty pleas and more trials.
The Chair: Mr. Spratt, who preceded you, indicated confidence in the
judiciary system. He said it is not perfect, but there are appeal procedures.
Would you echo those comments about confidence in the judiciary system?
Mr. Chaffe: Yes, I think we have an excellent group of judges across
the country, but they are grappling with the same limited set of resources that
every other partner in the justice system has. It is important for this body to
know that if a system is chronically underfunded, it will produce aberrant
results. Those results may cause people to have less confidence in the justice
The prosecutors, the defence counsel and the judges are probably the most
public figures in the criminal justice system. They have to grapple with this
very limited set of resources on a daily basis. I think the judges in particular
do a very good job with what they have got.
The Chair: Thank you very much, Mr. Chaffe, for representing your
organization's views today. It is part of the valuable information we need to be
able to make a decision on Bill C-268. We will resume our session on Bill C-268
next Wednesday. That may be the last session. With that, I will call this
(The committee adjourned.)