OTTAWA, Wednesday, February 8, 2012
The Standing Senate Committee on Legal and
Constitutional Affairs, to which was referred Bill C-10, An Act to enact the
Justice for Victims of Terrorism Act and to amend the State Immunity Act,
the Criminal Code, the Controlled Drugs and Substances Act, the Corrections
and Conditional Release Act, the Youth Criminal Justice Act, the Immigration
and Refugee Protection Act and other Acts, met this day at 4:15 p.m.
to give consideration to the bill.
Senator John D. Wallace (Chair)
in the chair.
The Chair: Good afternoon and welcome
Senate colleagues, invited guests and members of the general public who are
viewing today's proceedings on the CPAC television network. I am John
Wallace, a senator from New Brunswick, and I am Chair of the Standing Senate
Committee on Legal and Constitutional Affairs.
Colleagues, today we continue our consideration
of Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and
to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and
Substances Act, the Corrections and Conditional Release Act, the Youth
Criminal Justice Act, the Immigration and Refugee Protection Act and other
Acts. This bill groups together nine bills that had been dealt with
separately during the previous Third Session of the Fortieth Parliament.
Bill C-10 was first introduced in the House of
Commons on September 20, 2011, by the Minister of Justice, the Honourable
Rob Nicholson. The bill underwent several weeks of consideration in the
house before being introduced in the Senate on December 6, 2011. The bill
was referred to this committee by the Senate on December 16, 2011, for
In order to complete our examination of the
bill, this committee intends to hold extended and additional hearings. As a
result, we have scheduled 11 days of public hearings, including all-day
meetings during the week of February 20 to 24 this year. This is our third
meeting on Bill C-10. These hearings will be open to the public and will
also be available live via webcast on the parl.gc.ca website.
In addition to representatives and officials
from the federal, provincial and territorial governments, we will also be
hearing testimony from victims of crime and their families, academics, legal
experts, law enforcement specialists, youth advocates, as well as
representatives of various organizations, stakeholders, and others, working
in the field of criminal justice. In total, the committee has invited
approximately 110 witnesses. More information on the scheduling of witnesses
can be found on the parl.gc.ca website under the heading "Senate
Before introducing our guests who are joining
us today, I would first invite each of our Senate committee members to
introduce themselves and identify the region that they represent, beginning
with Senator Fraser, deputy chair of the committee.
Senator Fraser: My name is Joan Fraser, and
I am a senator from Quebec.
Senator Joyal: Serge Joyal, senator from
Senator Baker: George Baker, Newfoundland
Senator Jaffer: Mobina Jaffer, from British
Senator Chaput: Maria Chaput, Manitoba.
Senator Lang: Dan Lang, Yukon.
Senator Angus: David Angus, Quebec.
Senator Dagenais: Jean-Guy Dagenais,
Senator Runciman: Bob Runciman, Ontario,
Thousand Islands and Rideau Lakes.
Senator Boisvenu: Pierre-Hugues Boisvenu,
The Chair: Thank you.
To begin our public hearings today, I am very
pleased to welcome, from the Canadian Bar Association, Gaylene Schellenberg,
Lawyer, and Daniel A. MacRury, Chair, National Criminal Justice Section.
From the Barreau du Québec, we have Nicole Dufour, Lawyer, Coordinator,
Committee on Criminal Law; Giuseppe Battista, Representative, and Dominique
Trahan, Representative. From the Kenora Lawyers Sentencing Group, we have
Peter Kirby, Coordinator.
Gaylene Schellenberg, Lawyer, Canadian Bar
Association: Thank you. I am Gaylene Schellenberg, a lawyer with the
Canadian Bar Association's Legislation and Law Reform Directorate. Thank you
for this invitation to present the CBA's views on Bill C-10 to you today.
The CBA is a national association of over
37,000 lawyers, law students, notaries and academics. An important aspect of
our mandate is seeking improvements in the law and the administration of
justice, and it is from that perspective that we appear before you today.
With me is Daniel A. MacRury, Chair of the
CBA's National Criminal Justice Section. This CBA section consists of a
balance of Crown and defence lawyers from every part of the country. Mr.
MacRury is Chief Crown Attorney for the Cape Breton region of Nova Scotia's
Public Prosecution Service, and he will now address the substance of our
submission and respond to any questions.
Daniel A. MacRury, Chair, National Criminal
Justice Section, Canadian Bar Association: Thank you for inviting the
Canadian Bar Association to speak on Bill C-10. For clarification, I am here
in my capacity as Chair of the Criminal Justice Section. I speak on their
behalf, not on behalf of my employer, the Public Prosecution Service.
I have practised criminal law as both a Crown
attorney and defence counsel for over 26 years. I acted as inquiry counsel
for the Howard Hyde inquiry, which examined the treatment of a mentally ill
man and how he was dealt with by the criminal justice and health systems in
Bill C-10 represents a significant shift in
Canada's criminal justice and penal policy. In our respective view, it is a
shift in the wrong direction. The CBA has a long-standing commitment to
improving Canada's criminal justice and correctional system. Most recently,
at our 2011 Canada Legal Conference, the CBA publicly urged Canada to adopt
a more health-based response to the mentally ill in place of incarceration;
adopt policies and laws that recognize the social and economic realities of
our Aboriginal people; include a judicial safety valve or legislative
exemption to mandatory minimum sentences in the Criminal Code to ensure
justice in sentencing; and adopt a policy of openness and transparency
regarding the cost of any future criminal justice initiatives.
As a criminal justice practitioner, I have
witnessed a significant number of mentally ill people become involved in the
criminal justice system as opposed to the health care system. By restricting
options for judges, Bill C-10 will ensure more mentally ill people are
incarcerated in this country as opposed to being treated in the community.
In our view, this is inhumane. The CBA is a strong advocate for improving
conditions for people suffering from FASD, fetal alcohol spectrum disorder.
It is our view that Bill C-10 will ensure that more people suffering from
FASD will be incarcerated because of lack of discretion for trial judges. In
our view, this is inhumane.
The Supreme Court, in R. v. Gladue, held
that special consideration must be given to the unique circumstances and
challenges facing Aboriginal persons involved in the criminal justice
system. Section 718.2(e) of the Criminal Code is remedial in nature.
The Canadian Bar Association is of the view that Bill C-10 does not keep the
unique circumstances of Aboriginal people in the forefront with changes to
our penal law. In our view, this will result in further injustice to our
The Canadian Bar Association has great faith in
the judiciary of this country. Bill C-10 unfortunately demonstrates that
this government does not.
Increasing the number of mandatory minimum
sentences will unduly restrict the judge's discretion and is again the wrong
approach. At a minimum, the CBA urges that Bill C-10 be amended to add a
safety valve to section 718 of the Criminal Code, which would read as
follows: "Where an injustice could result by the imposition of a mandatory
minimum sentence in extraordinary circumstances, the judge may consider
other sentencing options." Other Western countries that have mandatory
minimum sentences, such as the United States, Australia and the U.K., have
such a safety valve. It is our view that justice requires this provision to
be included in the sentencing provisions of the Criminal Code.
As someone who prosecutes in the criminal
justice system, I can say that Bill C-10 will put an inordinate strain on
the overall workload of all the players in the criminal justice system. Our
members, a good mix of Crown and defence lawyers, know that this bill will
certainly increase delays in the court system and has the real potential of
cases being dismissed because of delay, and this certainly would not be
We believe that the substance of this
legislation will ultimately be self-defeating and counterproductive if the
goal is to enhance public safety. The bill takes a flawed approach to
dealing with offenders in all stages of their interaction with the criminal
justice system, from arrest, through to trial, to their treatment within the
correctional institutions, to their inevitable reintegration back into
society. It represents a profound shift in orientation from a system that
prioritizes public safety through individualized sentencing, rehabilitation
and reintegration, to one that puts punishment and vengeance first.
The measures contained in Bill C-10 will see
more Canadian youth incarcerated while awaiting trials. They will see more
matters go to trial due to harsh and unavoidable jail sentences associated
with many offences. They will see fewer reformed and rehabilitated offenders
leave our correctional institutions and try to reintegrate into our society.
With respect to the CCR amendments of Bill
C-10, the CBA stresses the importance of protecting human rights as an
integral part of our correctional legislation. The overarching human right
is dignity, and this does not stop at the prison door. The Supreme Court of
Canada has made it clear that the Charter applies in full force and effect
to those in prison. Bill C-10 will exonerate references to the
constitutional standard of least restrictive measures.
We urge senators to reinstitute these words
"least restrictive measures" into the act. We find it very troubling that
this legislation, certain to transform our criminal justice system, should
be rushed through Parliament to meet an election promise of 100 days.
Canadians deserve better.
The Senate Chamber has often been referred to
as the chamber of sober second thought. It is our respectful view that if
ever there was a bill that called for sober second thought and
reconsideration, it is Bill C-10.
Thank you for this opportunity to address you.
The Chair: Thank you for that, Mr. MacRury.
Nicole Dufour, Lawyer, Coordinator, Committee
on Criminal Law, Barreau du Québec: Good afternoon. My name is Nicole
Dufour. I am a lawyer at the Barreau du Québec’s research and legislation
On behalf of the Barreau du Québec, thank you
for having us. I am joined by Giuseppe Battista, the chair of our committee
on criminal law, and Dominique Trahan, the chair of the committee on youth
law. With us is Ana Victoria Aguerre, who also works for the research and
legislation service of the Barreau du Québec.
For your information, it is important to know
that the Bureau du Québec committees, which helped draft our brief, are made
up of both prosecutors and defence lawyers who represent the government, the
victims and the accused.
The Barreau du Québec regrets the government’s
decision to introduce an omnibus bill and, moreover, to insist on enacting
amendments like these within 100 days.
Unfortunately, that approach muddles the issues
and undermines our ability to determine Canadians’ true needs.
Our natural tendency to contrast diverse
opinions on complex topics, such as the fair and equitable treatment of
victims and offenders, inevitably leads to the oversimplification of those
In passing legislation, we should not be
constantly weighing the rights of victims against the rights of the accused.
Canadians expect legislators and stakeholders within the justice system —
including victims groups — to work together on passing the best possible
legislation that meets our society’s needs.
In light of that, the number and length of the
consultations preceding the passing of a bill should be neither perceived
nor denounced as inconvenient.
The increased use and number of minimum prison
sentences are the cornerstone of Bill C-10. The bill specifically proposes
the increase of certain minimum sentences, which were established in 2005,
although the true impact of those sentences is not actually known yet.
The Barreau du Québec feels that the use of
minimum sentences definitely makes our criminal justice system more complex
and less effective, while increasing the likelihood of miscarriages of
One of the fundamental principles of our
criminal justice system is that a sentence must be proportionate to the
severity of the offence and the degree of responsibility of the offender.
Only judicial discretion makes it possible to adequately consider the
various sentencing principles and the circumstances of the offence, thereby
enabling judges to impose a fair penalty.
Of all the pernicious effects of minimum
sentences, the most negative and harmful aspect for our society is
definitely the message that is being sent to Canadians regarding their
justice system and its judges.
If Parliament feels it is necessary to restrict
courts this much in their authority to impose a fair sentence, the
inevitable conclusion is that we cannot trust judges to do the job. Is it
really necessary to show the devastating effect of this powerful message in
a free and democratic society like ours, which is based on respecting the
rule of law?
Finally, it is unfortunate to see how isolated
incidents continue to be used to justify minimum sentences. I want to
illustrate that with the comments made at the last meeting of the House of
Commons standing committee, on October 18. In the case referenced, a judge
handed down a sentence of only 23 months to an individual who had sexually
assaulted a child, saying that he had spared the child’s virginity. The
issue is that this decision was overturned by the Court of Appeal, which
imposed a prison sentence of nearly four years. But no one mentioned that.
That is precisely the role courts of appeal should play in our justice
As for the proposed amendments to the youth
criminal justice system, the Barreau du Québec reiterates its concerns about
Bill C-4, which is mostly replicated in Bill C-10. Therefore, the
legislation pits public protection against rehabilitation and social
reintegration, even though one cannot be achieved without the other.
Our fear is that changing the declaration of
principle of the Youth Criminal Justice Act will lead to a shift toward
principles of criminal law applicable to adults. The Barreau once again
stresses the importance of maintaining the specific nature of youth criminal
law by focusing on rehabilitation as a way to protect the public in the long
The Barreau du Québec wants to point out that
Bill C-10 marks a departure from the Canadian approach — which has been used
since 1908 — regarding rules on the confidentiality of young people’s
identity. That departure seriously damages the unique nature of the youth
criminal justice system and may increase the stigmatization of young people,
thereby damaging their chances of rehabilitation and social reintegration.
The Minister of Justice and Attorney General of
Quebec, Jean-Marc Fournier, told Minister Nicholson that he disagreed with
the passing of the bill because it was unacceptable to strip the legislation
of the concept of sustainable public protection that implies relying on
re-education, rehabilitation and social reintegration. The Barreau du Québec
fully agrees with Minister Fournier.
Peter Kirby, Coordinator, Kenora Lawyers
Sentencing Group: Thank you, it is a pleasure to be here. I am part of a
small group of lawyers in the district of Kenora, of which I am the eldest.
I have included the biographies of our members. They are young, bright,
energetic lawyers who are willing to work hard and do work hard every day
for their clients, most of whom are Aboriginal people in the criminal law
We serve 40 First Nations communities, some in
the treaty 3 area, which is south of the Trans-Canada Highway, and the rest
of them in the treaty 9 area, which is in the north. Those communities, by
and large, in the treaty 9 area, are fly-in communities.
The health of those communities varies: some
are healthy, some are not. I do not want to concentrate on the dismal, but
let me tell you a bit about Pikangikum. It is a community of about 2,500
people located about a 20-minute plane ride northwest of Red Lake.
Pikangikum has, as of 2000, the highest rate of teen suicide in the world.
In Pikangikum, 400 of 800 school eligible children do not go to school. Gas
sniffing is chronic.
Kenora-based courts send courts to the northern
communities two to four times a year. We send courts to Pikangikum three to
four times a month.
Justice Minister Shewchuk from Nunavut talked
eloquently and long about Gladue, so I will not concentrate on that,
but it is important, and senators know the background.
Gladue says basically that we must use
restraint. We must use the least restrictive alternative when sentencing any
accused for any crime. I want to concentrate on one of those alternatives,
and that is the conditional sentence.
What Bill C-10 does is it eliminates 42
offences from consideration for a judge when the Crown decides to proceed by
indictment. For those 42 offences, an accused will no longer be eligible for
I have given you citations in my speaking
notes, so I will not refer to them, about cases that have come out of the
northwest and gone to the Ontario Court of Appeal. I invite you to look at
Why should offences specified by Bill C-10 and
preceded with by indictment be eligible for conditional sentences? We hear
that Bill C-10 is designed for repeat offenders. It is not. It will catch
first-time offenders. There is nothing in the bill that says it is
restricted to first-time offenders. It will catch those who are under
extreme influence of intoxicants, those who act by accident, lack of
foresight and who act as a result of mental illness or in self-defence but
go too far.
In addition, Bill C-10 will deny a conditional
sentence to those offenders who are released on bail and go through
extensive rehabilitation processes. They will get no reward. There is no
incentive for them to plead guilty.
How can conditional sentences offer greater
control and make communities safer? Judges will often make conditional
sentences longer than a real jail sentence. Remission does not apply to a
conditional sentence. If you get a 12-month conditional sentence, you serve
it in full. Rehabilitative conditions are standard, such as house arrest and
alcohol and drug treatment. A combination of a conditional sentence plus
probation offers better community control than a penitentiary sentence in
some cases. Let me give you an example.
If a judge sentences an offender to a 20-month
conditional sentence followed by three years of probation, you have 20
months plus an additional three years of control. If you put that offender
in a penitentiary for three years, that person might be out after having
spent a third of their time inside.
Conditional sentences also recognize the
rehabilitative work that offenders do prior to their sentence. If an
offender is engaged in a rehabilitation program and a judge recognizes that
the offender should continue in that program, the community is protected;
the offender and the community both are in effect safer by that person
continuing in the program.
When will conditional sentences be a fit
sentence for sexual offences? Rupert Ross, a Crown attorney of long-time
experience, recently retired from our district, has written extensively on
restorative justice. I invite you to read his submission to the committee.
In his experience in the North, it is difficult to get victims of sexual
offences to come forward, particularly children. That is because people live
in small, tightly-knit communities. They are afraid of disrupting family
ties; they are afraid of engendering hostility from other community members.
What Mr. Ross found in his experience was that to offer the offender the
chance of a conditional sentence would draw forth a guilty plea. The guilty
plea has the tremendous benefit of affirming that the victim is telling the
truth and that he or she is believed. It also sets the offender on his or
her way to rehabilitation, because admitting guilt is the first step in
Mr. Ross had experience observing the system in
the Hollow Water First Nation, in Manitoba. I have detailed some of that in
my speaking notes. I will not go into it, but I want to tell you about the
restorative justice programs in our area.
We have a mental health court in Kenora. We
have partner assault programs in Kenora. We have justice committees at
Grassy Narrows and Whitefish Bay First Nations. We also have a community
conferencing program that runs out of the Ne’Chee Friendship Centre and
Nishnawbe-Aski Legal Services Corporation, which is a branch of Legal Aid
Ontario and has restorative justice workers in the North. By and large,
these programs have been dealing with people charged with offences at a low
level of severity, often property offences. However, these programs can and
wish to move into crimes of violence. If you take the sentencing option of
conditional sentencing away from a judge, again, you are not allowing these
restorative justice programs to grow and to flower.
In effect, what Bill C-10 will do is to
frustrate judges; it will frustrate Crown attorneys. I say this because
everyone in the justice system has to meet the challenge of reducing the
over-incarceration of Aboriginal offenders. Judges have that responsibility,
as do Crown attorneys. The Crown has a fiduciary obligation to Aboriginal
Bill C-10 will stultify the insipient attempts
in our area to create restorative justice programs. The system will further
alienate Aboriginal people from the system. We know in the North that in
communities like Pikangikum, there is no justice committee. The band council
does not get involved in the justice process. We need Aboriginal people to
buy into our system in order that we can improve the system and reduce the
fantastic rates of incarceration of Aboriginal people in this country.
Now, you have a solution suggested by the
Canadian Bar Association in terms of Bill C-10. How can you make it better?
An offender charged with a drug crime and facing a mandatory minimum under
Bill C-10 can go to a treatment program and complete the program. He or she
can then come back before the judge, and the judge does not have to say but
can say, "I am not going to sentence you to the mandatory minimum." I
suggest that you bring in the same sort of escape clause or safety valve
with respect to restorative justice programs. You say to an offender, "You
go to the restorative justice program, complete it and then come back to
court." The judge then has the option of imposing a conditional sentence
that will allow for community control.
Those are my submissions.
The Chair: Sorry to interrupt you. We had
provided for approximately five minutes for opening statements.
Mr. Kirby: Yes; I am finished.
The Chair: I did not want to cut you off
because what you are saying is extremely important.
Mr. Kirby: No, I am finished.
The Chair: Thank you for those opening
We will now move to questions from committee
members, beginning with Senator Fraser, our deputy chair.
Senator Fraser: I have two questions and I
hope the answer to the first one will be quick so that I can get my second
To you, Mr. Kirby, following directly on what
you were saying, would it be helpful to include specific references to
mental health courts and Gladue courts in the kind of exception that
you are building?
Mr. Kirby: Yes, it would. Those courts
already exist and drug courts should also be included.
Senator Fraser: But drug courts only exist
from Ottawa west and not many of them.
Mr. Kirby: The police officer in our
community who wants to bring in a drug court has experience with another
community in Ontario that is running without assistance. The community just
decided to initiate a drug court. It is possible to create these processes
without public funding.
Senator Fraser: If they exist, particularly
in the Controlled Drugs and Substances Act amendments that are proposed
here, if we could add the mental health and Gladue courts to the
references to drug courts, do you think that would be reparative of the law?
Mr. Kirby: It would be but remember that in
Ontario there is only one Gladue court so-called, and that is in
Toronto. Make no mistake: Our judges and our district apply the Gladue
principles. They are not Gladue courts formally speaking, but they
are Gladue courts.
Senator Fraser: This question would be to
anyone, but I will hit you, Mr. MacRury, because you were calling
essentially for a restoration of some degree of judicial discretion in
Again, in the section of the act that amends
the Controlled Drugs and Substances Act, there is what could potentially be
a gigantic loophole. Clause 42 of this bill, which would add a new section
The court is not required to impose a
minimum punishment unless it is satisfied that the offender, before
entering a plea, was notified of the possible imposition of a
minimum punishment for the offence in question and of the Attorney
General's intention to prove any factors in relation to the offence
that would lead to the imposition of a minimum punishment.
That clearly recreates a degree of discretion,
but in the hands of the prosecution rather than of the judge. How do you
respond to that? What is your reaction?
Mr. MacRury: From our point of view, it is
no different than when we deal with Breathalyzers, where we give a notice of
increased penalty. I do not necessarily think that gives a whole lot of
flexibility to the system. I think, frankly, what we propose in terms of the
safety valve provision, which has been instituted in other jurisdictions,
because of mandatory minimums it puts more flexibility in the system that is
To respond to your question to my friend
Mr. Kirby, I would not just have the exception to deal with specialized
courts. The concern I have is that that requires resources in the provinces,
and many places do not have that. I would submit that the safety valve that
we propose to this committee gives enough flexibility and equality across
the country that special considerations such as mental illness, such as
Gladue considerations, should be taken into account and should be part
of the safety valve provision. We would strongly urge you to consider that,
because one size does not fit all in sentencing. I can tell you that there
will be special circumstances that are faced every day in courts. I would
strongly urge this committee to consider the safety valve that we propose.
Senator Fraser: I have many more questions,
if you could put me down for a second round, Mr. Chair.
The Chair: I will.
Senator Runciman: My first question is to
Mr. Kirby. I have some knowledge of Pikangikum. My youngest girl is an OPP
officer who has served in that area, and I have heard of some of the
circumstances in terms of the challenges facing that community. There is no
question. That was a powerful submission.
With respect to the experiences with
conditional sentencing in that area and specifically with the supervision,
it seems to me that that has been a problem. We are not made aware of
breaches of supervision. Appropriate supervision is not occurring. Do you
have anything you could say on that issue?
Mr. Kirby: It is an excellent point, and it
is a paradox. In the communities like Pikangikum that need conditional
sentencing the most, the resources to supervise are absent. They are just
not healthy enough, but you can take people out of the community for a
period of time. You can put people into a sex offender treatment program.
They have one in Thunder Bay that runs for about 36 weeks, for example. You
can put people into drug and alcohol treatment programs. You can put them
into halfway houses.
That is my response in communities that do not
have the capacity to supervise those kinds of sentences, which require a lot
Senator Runciman: In the letter you sent to
members of Parliament in October, you mentioned that minority offenders are
— and I am quoting from the letter — "more likely to be charged with
offences carrying a minimum penalty." I wonder what you are talking about
there because an important section of this legislation deals with sex crimes
against children. Could you be more specific about what you are talking
about in terms of charges? Also, why might that be occurring?
Mr. Kirby: I do not have the letter in
front of me, but when people are charged with crimes of violence, some of
those crimes, such as sex crimes against children, could result in mandatory
minimums. That has been the case for some time, but I am not suggesting that
Aboriginal people are charged with those kinds of crimes to a greater degree
than the non-Aboriginal community. That may not be very helpful, but I would
have to read the letter again.
Senator Runciman: Perhaps you could send us
something when you have refreshed your memory on that.
Ms. Dufour, you were talking about
proportionality, and I am curious about that because, if you read the bill,
someone who produces 200 marijuana plants for the purpose of trafficking is
subject to a minimum penalty of six months and a maximum of 14 years. In
2000, the Supreme Court of Canada said that minimum sentences — and I am
quoting from the decision — "do not violate the principles of
proportionality, particularly when the minimum is still just a fraction of
the maximum penalty applicable to the offence." The Supreme Court is not
only upholding minimum sentences but saying that they do not violate
proportionality, particularly when they are structured the way they are in
this bill, with the wide variations between minimum and maximum sentences.
Is your association saying that the Supreme Court is wrong with respect to
Giuseppe Battista, Representative, Barreau du
Québec: We are not saying the Supreme Court is wrong. The example you
are giving is one where the minimum is six months and the maximum is much
higher, but Bill C-10 also has provisions where the minimum is six months
and the maximum is two years for summary conviction offences. That is
clearly, if we apply what you just said, not proportional.
We are saying that you have to look at the
whole of the law. What this is doing is, in one breath, fundamentally
changing the rules of the game in terms of sentencing. We have a whole slew
of offences now that before would not have required people to go to jail. I
think the thrust of the message here is that this legislation will put
people in jail who would otherwise never have been sent to jail. When first
offenders appear before judges, when the conditions so require, even when
they have committed offences where other people would be sent to jail on a
first offence, judges today can make that call. They can evaluate.
Prosecutors today can make that call. This is very important. Prosecutors
will no longer have the right to make that call, and judges will have no
discretion at all either.
That is the problem. You gave a good example of
a minimum and a maximum, but that is not the concern. Even in that case,
there could be one or two individuals who a judge does not believe should go
Now, the senator brought up the point that the
legislation for controlled substances does provide, under proposed section
8, some discretion to the prosecutor. Very objectively, that is an opening.
That is how we see it at the Barreau du Québec.
We have mentioned that, but there is also a
caveat. That type of opening has virtues, but the perverse side effect is
that it may insight people to plead guilty if they are promised there will
be no request for jail when they may have a defence and not be guilty. Faced
with the prospect of a certainty of jail in case of conviction, they may
choose to plead guilty. I do not believe any prosecutor would willfully and
purposefully promise no jail to someone who they believe is innocent, but
that is not how judicial mistakes occur. They occur when the police are
convinced they have the right person and the prosecutor is convinced they
have the right person. Maybe defence counsel is asleep or unaware, and the
judge believes the person is guilty beyond a reasonable doubt. Those are the
judicial errors we have to deal with. From that perspective, this is what
minimums lead to.
Repeat offenders go to jail today. We do not
need Bill C-10 for that. People who need to go to jail are sent to jail by
judges today. What this legislation guarantees is that people who should not
be sent to jail will be sent to jail.
The Chair: The issues around mandatory
minimums are obviously of key importance to each of you. We certainly heard
about this area from the ministers when they appeared, Minister Nicholson in
particular. The minister describes the purpose of mandatory minimums as
being to enhance public safety. I have heard your comments, but the
minister's position is that they would enhance public safety and that the
mandatory minimums in the bill are reserved for the worst situations —
serious violent offences, repeat offenders, child pornography, sexual
assault with a weapon, aggravated sexual assault, providing sexually
explicit material to a child, making arrangements through telecommunications
or otherwise for a sexual offence against a child, the involvement of
organized crime, et cetera. These are extremely serious matters. The
minister seems to be saying that in those circumstances it is necessary to
remove an offender from society for a period of time and that it is
consistent with the principles of sentencing, which you would be well aware
of, under section 718 of the Criminal Code, which include denouncing
unlawful conduct, deterring the offender and separating the offender from
society where necessary.
You also said that this bill will result in
some offenders going to jail who otherwise would not, but, in these
examples — and when you look at the focus of the bill — could you take
exception to offenders of those types of serious offences going to jail for
a period of time? Of course they should receive rehabilitation while they
are incarcerated, but are those mandatory minimums, in these extreme
circumstances, not justifiable to enhance public safety?
Mr. Battista: The fundamental principle of
sentencing in the Canadian tradition has been that we do not sentence the
offence; we sentence the offender. The sentence will attach to the person
who committed the offence.
When you describe any offence, for example
sexual assault on a person who is less than 16, that is indefensible. No one
here is saying that it is all right. What we are dealing with is how the
judicial system reacts to this particular offender who committed this
particular offence in the particular circumstances in which it was
We can conceive of a specific offence in the
worst-case scenario in the commission of that offence and in the scenario
where the offence is committed where the action just barely crosses the line
of illegality. This is what courts deal with every day.
When people are brought before the courts,
someone can be charged with an assault. The assault can be a savage beating
or a slap on the face. How does a judge deal with that? The savage beating
is dealt with one way and the slap on the face is dealt with in another. The
person who slapped the face of another and has been convicted 15 times will
be dealt with in one way, and the person who beats someone in circumstances
that may be difficult will also be treated differently. That is what
sentencing is about. It is about sentencing the offender who committed a
The examples you gave are ones where people
today who deserve to go to jail are sent to jail. When the judge does not
send someone to jail who should be, there is an appeal process. Appeal
courts intervene when the sentence is unreasonably lenient or unreasonably
severe. Those are the standards we go by.
The Chair: I do not want to monopolize the
time. Other senators want to speak to such a critically important point.
Do you not believe it is within the authority
and responsibility of legislators, of Parliament, to establish reasonable
parameters to be applied to sentencing? Those parameters include maximum
levels that sentences can be levelled to and minimums would be part of that.
Those are the sides of the ditches. What is between the minimums and
maximums is where the judicial discretion is to be applied.
I almost get the feeling that we as legislators
should not have a role in sentencing, that we do not have the responsibility
or the authority to establish those parameters; it is simply left to the
judges. Do you agree that we do have this authority and responsibility to
establish reasonable parameters in sentencing?
Mr. Battista: I would suggest those
reasonable parameters exist. They have been established. When the legislator
identifies the factors that are aggravating or factors that are attenuating,
when the legislator identifies what society condemns and accepts, then the
legislator is setting parameters.
When the legislator says you must blindly do
this, I think the legislator is overstepping, and I do not think it is
healthy for the criminal justice system.
The Chair: Thank you for the comment.
Senator Baker: For a relatively minor
offence, compared to a serious one, as you pointed out, even when you look
at the offence itself, under this bill someone would receive a mandatory
minimum of one year if they trafficked, that is, gave or sold someone a
small amount of drugs under the threat of violence. That is the aggregating
factor, so a first offence. For someone who is mentally ill, that
aggravating factor will send that person to jail for a year; is that not
right, Mr. Battista? That is a good example.
Mr. Battista: Yes.
Senator Baker: That is where you looked at
the offence and not the person in sentencing.
I congratulate all of the presenters here
today. One thing that disturbs the Canadian public and legislators is when
we read judgments in which high-level crooks are let go because subsection
11(b) of the Charter has been violated, trial within a reasonable period of
time. We see it now every single week. We read the judgments, and people are
let go in increasing numbers. The Supreme Court of Canada has laid down the
period for trials. Obviously you cannot be in trial for 50 years; it must
come to a conclusion.
What the Canadian Bar Association is saying is
that this will increase the numbers of people who could perhaps be found
guilty of a very serious charge because of a violation of subsection 11(b)
of the Charter because of this bill. Could you elaborate on that?
Mr. MacRury: Absolutely. That is a real
concern that we have. In our jurisdiction, to give you an example, from plea
to trial, we are over a year right now. You can take it to the bank that
there will be more trials and they will be delayed. We do not hear about any
bag of money or new resources coming into this system to make sure that
trials will happen in a speedy time.
When dealing with victims, what I find
offensive is when legislators in their role build up expectations and we are
the people who deal with those expectations when we cannot deliver. That is
what will happen with this legislation.
If I could, senator, I would like to comment on
the last question for a moment. There seems to be this comment by the
Minister of Justice that we are only targeting serious offences with
conditional sentences. If you look at the bill, anyone under the Criminal
Code that has a 14-year maximum cannot get a conditional sentence. That is
fraud over $5,000. That is not what I say is "targeting." That is casting a
wide net. Senator Baker would understand that this is almost like a bycatch,
in terms of fishing.
With all due respect, I think there are an
awful lot of broad strokes being made by the government.
Another thing I would like to point out, and my
friend from Quebec has said this, Canada is safe right now. Judges take
serious crimes seriously.
I had the pleasure of arguing R. v. Sharpe,
the child pornography case, in this country. If you read Justice
McLachlin’s comments, she sets the
bar on how to deal with child exploitation. I can certainly tell you, as
someone who has argued cases before a court of appeal, we were getting
one-year sentences, without mandatory minimums, for possession of child
pornography long ago.
I agree with my friend from Quebec. My view is
that the tools and discretion are already there. In my view, the system is
working. It is time, as legislators, to stand up and defend the Canadian
criminal justice, as opposed to adopting an American system that does not
Senator Baker: The Quebec bar also pointed
out in their presentation that in some cases the sentence might be so
disproportionate that it would result in an injustice. That would be another
Charter violation, section 12, cruel and unusual punishment. In certain
cases, with the passage of this bill, do any of the witnesses foresee an
application in violation of section 12 of the Charter as it applies to
certain provisions — as you say, Mr. MacRury — with the small mesh size of
the net that this throws out?
Mr. Battista: I do not think we refer to
section 12 in our presentation.
Senator Baker: No, you do not, but I
interpreted that to mean what you said.
Mr. Battista: The reason I say that is I do
not know if we could talk about cruel and unusual punishment for some of the
minimums that are proposed. The question is not so much whether it is cruel
and unusual but whether it may be disproportionate in the circumstances.
For example, if someone has a job, is
reintegrating into the community and doing well, and everyone is convinced
the person is doing well, it would be terrible to take that person out of
where they are. They will possibly lose their job and not be able to get
another situation, and that may result in an excessive form of punishment
and may be totally disproportionate to what would be required under normal
You must understand that today prosecutors and
judges deal on a daily basis with the types of offences that are
contemplated here, and they apply the proper sentence to fit the crime and
the offender. Where a person can be rehabilitated, where there is a real
risk that sending the person to jail would do more harm than good — not only
to that offender but to the offender's spouse, children, entourage — this is
a person who was a taxpayer and is no longer. That is what we have to
consider when dealing with sentencing provisions. When we look at it from
the perspective of protecting the communities, we have to look at whether we
will make this person an asset or an adversary.
Senator Baker: As far as the provision —
The Chair: Senator Baker, we are running
out of time. Could we have your next question on the second round?
Senator Baker: You are the boss, chair. I
dare not disagree with you.
The Chair: Well, I would certainly like to
have your agreement. You are normally very good that way.
Senator Baker: If I disagreed, you still
would not allow me. Go ahead.
The Chair: Colleagues, I realize these are
complex matters and you have well thought out positions on them. If you
could keep your comments as concise as possible, that would be appreciated.
Senator Jaffer: Thank you for your
presentations. You have certainly given us a lot to think about.
I have travelled all over the world and I can
say with great confidence that we have some of the most competent judges in
our system. I am proud of the judges that we have. My Chief Justice, who was
appointed by this government, talks about Bill C-10, which is an unusual
thing for a judge to do, and says that it will strain the system to have
Bill C-10 become law.
I said this to the committee and I will say it
again. When I first started practising law, my senior partner was a
well-known jurist, Thomas Dohm, who used to say, "You do not throw the key
away. Sooner or later, the majority of offenders must come out and leave the
prison system. You cannot have a cookie-cutter approach to sentencing."
I would like to hear from all of you in detail
as to what Bill C-10 will do to sentencing principles.
Mr. MacRury: It will restrict judges'
options, which is a big concern. It is the whole climate of this bill. When
you talk about "you cannot throw away the key," the difficulty is that with
the pardon provisions, for example, it will make it difficult for people to
reintegrate into our society. It goes to what my friend from Quebec said,
namely, are we making friends or adversaries?
The situation is that the system we had in
place, where we had sentencing principles and correction policies, is all
being changed, all in the name of toughness. At the end of the day, we would
submit that it will not achieve the safety that everyone is saying it will.
We will have more people coming out unsafe and with fewer opportunities.
We deal with a lot of poor people and a lot of
people in poverty. Just the simple thing of increasing pardon fees is great
for someone who has a rich father or mother because they can pay those fees,
but some of those fees are what someone gets on social assistance. We cannot
lose sight of the fact that we are dealing with a lot of poverty and a lot
of disadvantaged people. That is what we deal with in the justice system.
I submit it that would be better if we invested
more in education, health and prevention than going down a road that will
not work, quite frankly.
Senator Jaffer: I was interested in your
submission where you talked about, if I understood you correctly, amending
section 718. Could you expand on that, please?
Mr. MacRury: Yes. We proposed that last
summer. It was passed as a resolution at our legal conference, namely, a
safety valve provision. It would allow discretion in judges where an
injustice takes place. That would apply where someone was severely mentally
ill and did not come under the NCR fitness provisions of the Criminal Code
or where someone was from the Aboriginal community. It would give judges an
option. It is not something we invented; it is something that happens in
other countries that have adopted mandatory minimums where you do have a
safety valve provision. It is in our brief and I invite you to look at it.
The United States has it as well.
I would strongly urge the Senate to consider
that because I think that at least gives more flexibility to the system to
prevent an injustice.
One of the problems that we have with this
debate is there is there is an awful lot of labeling going on. Someone is
for a criminal or for a victim. The reality is that sometimes accused are
victims. We just had a situation in Nova Scotia two weeks ago where someone
had been a victim of a probation officer that abused 30 people. That
individual ended up committing a break and enter, ended up getting a
conditional sentence, a joint recommendation, that they would not get under
this new legislation. I challenge anyone to say justice was not done by this
sentence. I suggest it was.
Sentences are contextual and we are not dealing
with statistics; we are dealing with people. At the end of the day, we have
to look at the offender before us and sentence the offender, not sentence a
section of the Criminal Code.
Senator Jaffer: I know you are not here as
a prosecutor, but one of my preoccupations — I used to practise in this
field as well — is plea bargaining. What will this act do to plea
Mr. MacRury: Plea bargaining is a reality.
In our jurisdiction, about 15 per cent of matters actually go to trial at
the end of the day. If more matters are going to trial, where is the
capacity for that? That is one issue. That is the reality. Unfortunately, it
will be a push to the bottom. People will look for prosecutors and put
pressure on them, for example, to elect summary instead of indictable when
it is clearly an indictable offence. Then you are in a situation such that
do you allow that election so an injustice does not happen? I do not think
that is a just result because, at the end of the day, you are explaining to
a victim, for example, that we are going summary. That is not fair to the
victim, either. We are dealing with a bunch of people that we have to treat
fairly in the system and we have to be transparent. The concern I have is
that it is transparent now when we have it in an open courtroom, but if we
are encouraging what I call "election bargaining," which will happen under
this act, I do not think that is healthy, either.
Senator Boisvenu: Thank you very much for
your presentations. My question is for Ms. Dufour. I think that Mr. Ouimet
said — a few months or a few years ago — that the Barreau du Québec’s main
objective was to protect and defend Canadians.
I am trying to understand your opposition to
Bill C-10. In Quebec, 77 per cent of the population agrees with harsher
sentences for more serious crimes, and Quebec victims groups unanimously
support Bill C-10. I am trying to understand this division between the
general public — which has specific expectations when it comes to harsher
sentences for more serious crimes — and the Barreau du Québec, which is
diverging by saying that we should not be too harsh and should give people
Is the Barreau drifting away from popular
opinion or is it popular opinion that is drifting away from the Barreau?
Mr. Battista: If I may, senator. You say
that 77 per cent of the population supports harsher sentencing.
Senator Boisvenu: That information does not
come from me; it comes from a Léger & Léger survey.
Mr. Battista: As you know, you should
always ask someone who is reasonably well-informed.
Years ago, a survey was conducted. A group of
individuals was given information that came from media reports. They were
told: "Such and such a crime has taken place. This is what the media has
reported and this is the sentence handed down by the judge". Most people
thought the sentence was too short.
Later on, the same people were given all the
information provided to the judges. Most of them found that the sentence was
What my colleague told you — he is a crown
prosecutor and works with victims every day — and what I have also learned
through my years of practice is that, very often, offenders themselves are
victims. They might have been victims in their youth or childhood. They
might have been victims under different circumstances. The objective of a
sentence is to be fair to everyone.
That means everyone, including offenders. We
should not act out of revenge or in an indiscriminate manner. Of course,
society needs to protect itself. No one here — including the Barreau du
Québec — has ever said that sentences should not be fair. That has never
been said. The Barreau du Québec has always spoken out for victims’ rights
and their place in the justice system. We have been doing so and continue to
do so every chance we get.
However, what needs to be kept in mind is that
victims need support. Victims need assistance; they need the system to take
care of them. It is false that doubling or tripling a sentence, without
providing victim support, helps the victims at all. I think that we must be
careful about making such statements because they make people believe we are
helping them, even though what they actually need is assistance and support.
That is what we, the Barreau du Québec, advocate.
Senator Boisvenu: You say to be careful, to
not take away discretion from judges because that is how justice is served.
I have had a look at a few sentences handed down recently, and I will share
one with you.
This case involved a man who raped a woman for
12 hours after forcibly confining her. The judge handed down two sentences,
one of 18 months for forceful confinement and another one for rape. The
judge had discretionary power, so he could have imposed harsher sentences.
The judge decided that, since the victim and the circumstances were the
same, the two sentences would be concurrent rather than consecutive.
Did the judge’s discretionary power really
serve justice in that case? If you are familiar with the parole system, you
know that, in Quebec, offenders who commit crimes against individuals are
still released after serving one sixth of their sentence. That means that
the person in question was released after three months. I think that, in
this case, Canadians were given all the information: two 18-month sentences.
Instead of serving 36 months in a federal penitentiary with services, he
served 18 months in a Quebec prison, with no services, as we know, and was
released after three months.
Does this kind of sentence not send Canadians
the message that, for some serious crimes like rape, sentences should be
Mr. Battista: With all due respect,
senator, I think you are illustrating what I was saying earlier. You are
citing a specific case. As I said earlier when responding to one of your
colleagues, sexual assault is unacceptable. We, as a society, cannot accept
sexual assault, nor should we. That is not the issue. The issue is the
information concerning that case. For instance, what was the public
prosecutor’s position in the case? Did the public prosecutor appeal? Did the
Court of Appeal consider the case?
We can judge a matter and say, this or that
should have been done, but sentencing must be unique to each case. I do not
know that individual, I am not familiar with the facts you told me about,
but I have confidence in the justice system and the fact that prosecutors
work very hard. I have confidence in the fact that the quality of today’s
judges — and I have no problem saying this — is far better than what it used
to be, in my opinion. Judges are conscientious and rigorous. They try to do
the right thing, and they succeed most of the time. And when they do not
succeed, courts of appeal and, ultimately, the Supreme Court are there to
sort things out.
We are not here to say that people who deserve
to be punished should not be. That is not what we are saying. The point we
are trying to make is that the punishment should be imposed in a fair
manner. To do so, we need human beings who are fully capable of determining
what is fair and not robots who blindly administer punishment.
Senator Angus: Thank you all for your very
thoughtful and thought-provoking presentations. As you know, we are dealing
here with a huge bill and with nine different pieces of legislation. I want
to make sure I understood that your presentations — those from the Canadian
Bar Association, the Barreau du Québec and also from you, Mr. Kirby — are
focusing mainly on the mandatory minimum sentences and the removal, or the
non-existence, of the safety valve discretion clause.
Mr. MacRury: If you look at our 100-page
brief, it covers a lot more than that, senator. I certainly invite you to do
Senator Angus: Your verbal presentation
today focused on that.
Mr. MacRury: It is difficult, with nine
pieces of legislation, to cover everything in five minutes. In fairness, our
presentation was targeted, but I would certainly encourage you to read our
brief, which was developed by our members, because we have problems with the
overall concept of the legislation, not just one piece of it.
Senator Angus: Right. Is there anything in
there that is any good, or is it all bad?
Mr. MacRury: You will see from our
presentation that we compliment where we agree with the legislation. We do
not say it is all bad or all good, but I hope we were constructive in our
brief. Again, I encourage you to read it.
Senator Angus: I appreciate that. We should
try to read as much as we can of this stuff. It is also unruly for us to get
I want to focus on two things. First, with
respect to the safety valve, both this time and when we looked at this
legislation before, I think one of you referred to us mimicking the U.S.
system in the concept of mandatory minimum sentences. I do not know
personally, although I have practised law for 50 years. Is it founded in the
U.S.? Is that where the concept comes from?
Mr. MacRury: I do not know if it was
founded there, but we know from reports that places like Texas and
California are having second thoughts about imposing mandatory minimums.
Senator Angus: They are much more extreme
than they are here.
Mr. MacRury: The reality is that the issue
of discretion is certainly a problem. I would comment that I believe the
system we have in place right now is working. Quite frankly, yes, there need
to be improvements in our system, but our view is that this piece of
legislation is not the way to go.
Senator Angus: As the chair pointed out,
there is still discretion between the minimum and the maximum, but that is
not your point. Your point is that there are great possibilities for
injustices in cases of certain individuals who would have to be given the
mandatory minimum. If the safety valve was there, that would give the judge
a chance to deal properly, right? Is that safety valve clause in any of the
existing law, as such, or is this a relatively new concept?
Mr. MacRury: It is in the existing law in
the other jurisdictions.
Senator Angus: In the other jurisdictions,
Mr. MacRury: Obviously it is not in Canada
at the present time.
Senator Angus: No, it is not.
Mr. MacRury: Given the amount of mandatory
minimums being proposed, the concern we have with the lack of discretion is
that injustice will take place. When I say that, senator, I mention in my
opening remarks that I was inquiry counsel in the Hyde inquiry, and I invite
you to read the recommendations of Judge Anne Derrick in that inquiry. All
the police officers who testified in that inquiry said they were dealing
with mentally ill people every day. We have conferences now from police
officers who are named psychiatrists in blue. We have comments from our
Chief Justice on the topic. It is not something that is going away. It is
something that we have been struggling with for a long time. Unfortunately,
we do not have the tools in the criminal justice system to deal with this
problem. By restricting us even more, we will have even fewer tools. That is
a big problem. I certainly invite you to read those recommendations. The
reason we need discretion is because one size does not fit all.
Senator Angus: I tend to agree with you. I
think you make it sound very logical. I find the people sitting behind you
to be reasonable people. They are from the Department of Justice, many of
them, and Public Safety, as well as the ministers. I know there have been
consultations and I know you are very serious in what you do, and I am a
proud member of your association.
Have you asked yourself what is the rationale
or why did they, in your mind, decide not to put in the safety valve clause?
Why do you think it is so cut and dried? I think it is an interesting
Mr. MacRury: The unfortunate and
disappointing side, senator, is that the day it was proposed at our
conference this summer, it was in less than 24 hours that the minister
rejected it. I do not know if it was really given much thought, to be
honest, at least from the political level, or that is the appearance to
someone looking at it.
Having said that, I too have great faith in the
people behind me, and I work with the people from the Department of Justice.
All I would say is that we have an opportunity at this stage — and I would
implore you — to amend the legislation, take it back to the experts at the
Department of Justice and come up with an acceptable safety valve so that
justice will be done.
Senator Angus: You have given the analogy
of our deliberations to those of the various courts of appeal, and we are
certainly listening to the arguments of counsel.
I do not mind who answers this, but almost
every witness that we get in dealing with these laws these days deals with
something other than the actual legislation itself. In my mind, I look at
the law and the federal government's role in criminal law to legislate what
is, in its opinion, good public policy and the right laws. However the
administration of justice, as we know, is in another place, at least in
Everyone says if this law goes in it will
strain the system, that it is not healthy for Canada's criminal justice
system, that it will stultify — a lot of words like that. "It is straining
the system," which I can understand. I hear the testimony. It is already
being strained beyond belief without the laws that are being proposed.
I do not think it is a good argument to say it
will strain the system. I think we have to fix that too, and I think we have
to get the money. I think the provinces and the federal people have to come
together and deal with the overcrowding, lack of judges, lack of prosecutors
and so on. Everyone is saying that no matter what we do to improve the law
now, whether in the drug field or child abuse or sexual offences, it is
straining the system. It may be good law because it is too bad because the
prisons will not be able to hold the people, there will be a backlog in the
courts and all that stuff, which I am not arguing. I hear you and believe
you, but is it not a separate thing?
Mr. Battista: You will note that we did not
focus on that aspect. I think, when those arguments are made, there is an
element of cost benefit. In other words, what is the benefit we are looking
for here? If we do not see one and we see there are costs to it, that may be
an argument to convince you not to go forward with something where there are
no real benefits. There are many negative elements, as we have seen in terms
of proportionality and the wrongs it can do in individual cases, and compare
that to the effects and consequences.
If I may, you asked if there were other issues.
We, as well, have commented. We, as well, have supported the idea of
creating some form of safety valve where judges would not be required to
impose minimum sentences where the circumstances justified it. We do not
necessarily use the same language and we were not limited only to cases
where mental illness may be involved or others. I do not think that that is
what you are suggesting, but those are examples. We would definitely endorse
However, judges have that discretion, be it
that they must justify, that they must explain, that it must be in writing,
that is fine, but there should be some kind of safety mechanism.
Seeing it as a whole, I would like to comment
on two other things. One is rehabilitation. This legislation pushes even
further some recent amendments that have been made in terms of people
wanting to apply for rehabilitation.
The law now provides for some situations where
people will never be able to be pardoned, even though they are no longer
serving sentences. People may be totally rehabilitated and may be good
assets but cannot get a pardon, and that is something to consider in terms
of long-term effects.
We have also made important comments on the
youth offender legislation. Mr. Trahan is here for that, if you have
specific issues to raise. We have great concerns about that as well. There
are other things, but those are two important points.
My last point, if I may, is the transferring of
prisoners. There is a reality. Unfortunately, sometimes Canadians commit
offences in Canada, and sometimes they commit them abroad. It is
unfortunate, but it happens. Sometimes it is a first offence and sometimes
the first offender is in jail in a foreign jurisdiction. This legislation, I
would suggest, makes the process of returning and serving a sentence in
Canada a much more difficult, much more onerous task and leaves subjective
discretion to the minister and removes objective criteria, which is of
concern to us.
Senator Joyal: I would like you to consider
the constitutionality of some of the bills contained in Bill C-10.
I feel that there are four aspects of this bill
that could be challenged on the basis of constitutionality. The first is the
last issue you talked about, to the effect that, in some cases, minimum
sentences could constitute a fundamental miscarriage of justice.
If I am not mistaken, section 7 of the charter
contains a decision rendered last year — I think it was in Ontario — by a
judge who refused to apply a minimum sentence based on the principle that
the outcome would be so outrageous as to constitute a miscarriage of
justice. I think the government appealed the decision, but I feel this
illustrates very clearly that, in some situations, applying a minimum
sentence would violate the charter.
The second example has to do with the Young
Offenders Act, and I would very much like to hear Mr. Trahan’s thoughts on
this. To my knowledge, the last decision the Supreme Court of Canada
rendered under the Youth Offenders Act was in the 2008 Regina v. D.B case.
You are probably familiar with that decision. The Supreme Court recognized
the constitutionality of sections 62, 63, 64 and 72 of the Young Offenders
Act, but the bill abolishes those provisions. I can provide you with the
reference to the bill. You are probably familiar with the relevant statutes.
My concern is the following. By changing the
youth criminal justice system so much as to make it mirror the adult
criminal justice system, I think that we are going against one of the
fundamental principles that recognize the fact that the legal liability for
young people is not equal to that for adults.
My third point is in relation to the
suggestions of Mr. Kirby and Mr. MacRury that the act extends so many
minimum penalties that, in fact, the Gladue case will be meaningless,
to a point. The net is spread so wide that the intent of the Supreme Court
in the Gladue case will be negated at the end of it.
Would it not be one of the circumstances in
which you could challenge the act on the basis of the constitutional
argument of systemic discrimination that the court considered in Gladue
as being an imperative principle in sentencing Aboriginal people?
The Chair: Can we start with that question?
Senator Joyal: Yes.
Mr. Kirby: I will reply briefly to your
last point, and my answer is yes. I believe that, combining Senator Baker's
point, there are two aspects. There is a section 12, cruel and unusual
punishment, argument to be made. There is also maybe a simpler
constitutional argument to be made that this legislation would, in some
circumstances, negate the effect of 718.2(e) of the Criminal Code, as
interpreted in Gladue.
Dominique Trahan, representative, Barreau du
Québec: Regarding the unconstitutionality of some provisions of the
Youth Criminal Justice Act, the decision you mentioned, R. v. D.B., makes
clarifications and recognizes the legitimacy of some of the provisions. I
think that lifting the prohibition on publishing the names of young persons
would also be unconstitutional.
In that context, an exception is about to be
created, in special legislation that applies to those 18 and under, that
puts young people on the same level as adults. If young people are still
eligible for a youth sentence, their names could be published in the case of
a serious violent offence or a violent offence. At the various stages of the
judicial process, among the things that are lacking is right of appeal. In
addition, the offence category for which young people are likely to be
submitted to this process has been expanded considerably. There is public
discussion about 3 per cent of young people, but I think that figure is
wrong. Technically speaking, the statement made does not reflect the
reality. I think that the percentage is currently much higher than that in
terms of all the young people likely to receive a youth sentence or those
charged with a serious violent offence.
I feel that something has been missed, and that
this provision very likely could be challenged.
Mr. MacRury: Senator, you make a good
point. It would be a surprise to no one that there will be constitutional
challenges on a number, I think certainly in dealing with the Gladue
principle and also dealing with the principle of cruel and unusual
punishment. It is unfortunate that it has to get to that standard before we
look at amending the legislation to deal with those situations. However, I
think that we would be naive to think that this will not happen. I think the
way is paved for those types of arguments.
Mr. Trahan: Similarly, what this leads to,
especially among young people, is the possibility of 16 or 17 year olds
being charged and then having to appeal the judicial proceedings. Those
appeals are extremely long and clog up the system. As a result, final
decisions end up being rendered once the offenders are 22. What happens to
them? We failed to do our job because things were not handled appropriately.
The system should have taken care of them, rehabilitated them.
The Chair: Senator Joyal, we have to move
to the next questioner and we can put you down for the second round, if we
Senator Dagenais: My question is for the
Barreau du Québec representatives. It is not trivial that criminals have
chosen Canada as a location for their activities, such as drug trafficking,
fraud and elder abuse. They settle here because they know the low likelihood
of being imprisoned in Canada. Of course, a sentence must have a deterrent
effect and promote rehabilitation, as you said, but it must also be
punitive. The belief that a murderer will not kill again does not mean that
he or she should go free.
The Barreau du Québec seems to prefer a system
where criminals have the luxury — as is currently the case — of negotiating
a guilty plea just to avoid imprisonment, even for serious crimes. However,
the fact of the matter is that an admission of guilt does not make the crime
any less serious.
Do you sincerely believe that these kinds of
provisions encourage Canadians to have faith in the judicial system?
Mr. Battista: I did not understand the last
part of the question.
Senator Dagenais: In other words, does the
current system strengthen Canadians’ confidence in the judicial system?
Mr. Battista: I would say that it does. I
would also say that well-informed Canadians should be asked about that.
You mentioned fraud and drug trafficking,
violent crimes. I need not to tell you, senator — you have been a police
officer in your career — that what you described is unfortunately found in
every corner of the globe. What you described is also found in American
states where, for instance, there are minimum sentences, in states with the
death penalty and in states that may be right next to each other. It has
been noted that the penalties and sentences imposed have no impact. Murder
rates in states where murderers are put to death sometimes increase or
decrease the same as they do in places with no death sentence.
The question we, as a society, as a justice
system, must ask ourselves is: What approach should we adopt? What do we
want to do? Do we want to focus on the fact that the person on trial can be
reintegrated, and stack the odds in our favour as a society, not just in the
offender’s favour? When it comes to protecting the public and society, we
must think about reintegrating offenders. Will they end up participating in
the labour market? We are not saying that they can always be reintegrated
into the labour market; our prisons are full. It is not true that people do
not go to prison. The issue is knowing whether we can reintegrate
individuals into the labour market and whether we should do so? We feel that
the answer is yes.
It is said that judges are in the best position
to make such decisions. Therefore, with proper explanation and
understanding, Canadians should have confidence in the justice system.
Our judges are independent. Our justice system
has improved throughout the years. Everything can be perfected. Everything
can be improved, but our judges are strong and independent. They act based
on rights, legislation and the rule of law. In our opinion, that is what we
should strive toward.
Senator Dagenais: Where in your list of
priorities do you place the need for the appearance of justice for victims?
There is a lot of talk about the accused, about the fairness of
rehabilitating those people. We have to think about the victims as well.
Mr. Battista: We have always advocated that
victims should participate in the judicial process. When I started
practising law, the justice system did not take victims into account at all.
They were just regular witnesses. Today, things are different.
Unfortunately — with the system and its
workings being what they are — participation, attendance and information are
not always there. That is unfortunate.
I have been a defence attorney for 25 years. My
experience is that, in all cases where people are informed, have a solid
grasp of what is going on and are involved in the process, they end up
understanding everything better. I think they grasp the inner workings of
the justice system and understand what is going on. I also think that they
accept the outcome. Unfortunately, there are too many situations where
people do not receive all the support they should be given, the required
assistance or the resources available to them. Therefore, their role is
diminished and their understanding of the process is affected.
I agree with you, but I do not think that we
can resolve that issue — which is a real problem that must be addressed — by
increasing penalties and prison sentences.
Mr. Trahan: I will keep my comments in the
same vein. Youth criminal law provides a mechanism referred to as the
"extrajudicial sanctions". That mechanism is administered by the provincial
director. So, sometimes, in the case of serious crimes, probation officers
and social workers can sit down with the accused, their parents and the
victim and give them an opportunity to say: "This is how I felt when you
attacked me. This is what I went through".
The victim explains what happened, the young
offender learns, parents listen, and everyone benefits from the experience.
Those procedures do not necessarily involve custody or supervision. However,
they are just as beneficial and are used daily.
The Chair: We are likely to run over the
scheduled time for the session, and I will go as far as I possibly can
because the input here is very valuable to us.
Senator Chaput: I have already shared some
of my concerns about Bill C-10. I would like to quickly repeat them.
My first concern is the minimal resources
available to victims. My second concern is the lack of consideration for
young offenders’ specific circumstances. My third concern is the replacement
of a system based on rehabilitation with a system based on imprisonment.
Following the discussions we have held in this
committee, I feel that Bill C-10, as it is currently presented and worded,
further contributes to the imprisonment of a disproportionate number of
aboriginals. That is what we were told last week and again today.
I like to focus on potential solutions. My
questions will be brief. This question is for Mr. Kirby. What initiatives or
measures have been most useful in fighting crime and recidivism in your
aboriginal communities? Have any initiatives or measures had a positive
Mr. Kirby: In Pikangikum, for example,
there is a high rate of gas sniffing, and there is a program that takes
young people out of the community into treatment programs in Thunder Bay,
Manitoba, and Saskatchewan. It is not perfect, but it is one answer. There
are sex offender treatment programs. We do not have enough of those programs
available. We have partner assault programs in urban areas; we do not have
those programs in First Nations communities. We need restorative justice
workers in those communities, and we need the band councils to buy into the
process so that they support these restorative justice processes coming into
their community. Those would be three things I would say to you.
Senator Chaput: My last question is for the
Barreau du Québec. On page 10 of your report, you state that 97 per cent of
pardoned individuals have not reoffended.
Is there a risk that those who are no longer
eligible to apply for a pardon may reoffend at a rate higher than
3 per cent — which, according to you, is the percentage of pardoned people
who have reoffended? In the case of longer imprisonments, is there a risk
that the rate, which is nevertheless encouraging, will change? You say that
97 per cent of pardoned people have not reoffended. Is that right?
Mr. Battista: Those statistics were
published by government agencies. We feel that imprisonment is not the issue
here. Rehabilitation enables people to return to society.
For instance, many job applications require
people to state whether they have any convictions or a criminal record.
Those who were pardoned do not have to answer that question. We are talking
about opportunities for employment and full reintegration as a member of
Let us look at the example of people who
behaved in an entirely appropriate manner for five or ten years, but who
committed one, two, three or four mistakes in their youth, as sometimes
happens. Perhaps they went through a hard time between the ages of 19 and
22. They have pulled themselves together and are now 35 years old. Those
people should be able to benefit from all the opportunities available to
return to society. We fear that robbing those people of opportunities
deprives us of their knowledge and skills and makes it difficult for them to
become reintegrated. What options does that leave them?
When people go to prison, they are not
surrounded by individuals who will help them re-enter society. Imprisonment
increases the likelihood of offenders joining the wrong crowd.
That is how this problem should be viewed.
Rehabilitation is a measure aimed at enabling people to participate fully in
society. It is beneficial to society and serves the public good. Therefore,
that benefit disappears if people are denied — in some cases completely —
the opportunity of rehabilitation.
Ms. Dufour: We included the statistic in
the Barreau letter to say that the current rehabilitation system is working.
Senator Frum: Mr. Battista, in one of your
responses to the chair, you said that reasonable parameters already exist in
the sentencing code, which is one reason you object to this. I think it is
necessary to state or explain that mandatory minimums are already part of
our sentencing code, and so Bill C-10 does not invent mandatory minimums; it
simply introduces them for some crimes and increases them for some crimes.
It is not creating a new concept. It gets talked about sometimes like it
does not exist already.
Mr. Battista: Our position has always been
to oppose minimums in all circumstances. Every time governments on all sides
have proposed it — not only the Conservative government, the Liberal
government did the same — we opposed it then and oppose it today. It is a
matter of principle. It is a matter of an approach to sentencing. You are
right that this legislation does not invent it, but this legislation puts it
across the board for a broad section of offences. That is what is new in the
In other words, the argument could have been
made in the past that we are targeting very specific ways in which some
offences are committed — very violent or with a risk of violence, use of
weapons, loaded weapon, et cetera. That was the rationale. Even in those
circumstances, we think judges should be able to use judgment because every
case is different. It was piecemeal; this is across the board. This is
across the board for a whole slew of offences.
Senator Frum: It is in two major areas, sex
crimes and drug crimes. That is not a slew; those are two very focused areas
of crime. It struck me in studying this that again we talked about
proportionality and the reasonable limits that exist. I do not have
statistics, but I have an eight-year-old daughter. When I see that, for the
making and printing of child pornography, the transmission and distribution,
and the possession of it, the current mandatory minimum — because they do
already exist for those crimes — is 45 days for some of those crimes or 90
days. What we are proposing is six months. You get into the issue of
proportionality and reasonable limits. I think this is then a matter of
one's personal sense of justice, and 90 days for making or distributing
child pornography is, to me, not proportionate. It is disproportionately
Mr. Battista: You are correct when you look
at the offence and you say, "Well, this offence is a serious offence and
therefore deserves punishment." However, judges need to punish the person
who committed the offence, and that offence can be committed in a number of
ways. The person who committed the offence could have had all sorts of
reasons for why that occurred. Nothing justifies it, but some reasons
explain it a little more.
You have heard my colleague here explain that
there are many people who suffer from mental illness and are not necessarily
not criminally responsible, but they are not well either, and they may do
things that are not good. The question is how to deal with them.
There may be people who have jobs who otherwise
are good people and who have made a serious mistake, an error in judgment.
Judges and prosecutors look at those individuals and decide what is in the
public interest and what the proper sentence is. In cases where people
deserve to go to jail, people do.
This legislation does not say that repeat
offenders go to jail. This legislation says anyone under any circumstance
charged with offence X will receive this minimum. That is the problem with
this legislation. It is not that people who commit those offences should not
be treated properly in the system. That is not our purpose. The purpose is
the sort of blind response to the offence.
Senator Frum: I still come back to
proportionality. In all the circumstances you have described, where the
person is not well, clearly if they are committing this particular type of
crime they are really not well. I do not know that giving them a light
sentence and letting them reoffend again is what is in society's or
Mr. MacRury: Senator, I take issue again
with you saying it is only targeted at drug dealers and people dealing with
child exploitation. As we indicated in our brief, you are also dealing with
people committing fraud over $5,000. If you do not think those are serious,
maybe you should take the ones you are capturing under the bill.
Under the Criminal Code, anything with a
maximum of 14 years is not eligible for conditional sentence. That is
certainly a lot wider than the targeted —
Senator Frum: That is not a mandatory
minimum. That is removing conditional sentence.
Mr. MacRury: That has the same effect.
Senator Frum: It is a different thing,
Mr. MacRury: I would also say that I
prosecute child pornography cases. I can tell you, as a prosecutor, we take
them seriously. We took them seriously before this piece of legislation, so
I do not see any difference. The tools are already there to go after these
predators, which is what they are. The courts have taken them seriously as
Certainly there is a raft of cases — whether it
is the Supreme Court of Canada, from my court, the Nova Scotia Court of
Appeal — that have made huge pronouncements on the issue in relation to the
seriousness of the offence. I would respectfully submit to you that the
tools are already there for the practitioners to deal with it now.
Senator Frum: As a society, what are we
saying about the value we place on children when we have, in our books
today, that if you commit this kind of crime against a child, you will go to
jail for 60 days? What are we saying?
Mr. MacRury: Certainly, as a prosecutor, I
look at the gravity of the offence, not at whether it is a minimum or a
maximum. We sentence basically on the facts of the case, and that is what we
What we say to our society, as the Supreme
Court of Canada has, our Supreme Court has the toughest child pornography
laws probably in the world, tougher than the United States. For example, in
the U.S., they do not capture morphing images of child pornography, and in
Canada we do.
I respectfully submit that we should probably
start getting out there and say we do have strong laws, because we do. That
is the difference. There is misinformation out there that somehow we are not
standing up for children. I can tell you that we are.
Senator Frum: Mr. Kirby, with respect to
the idea that we will be getting rid of conditional sentencing for sex
crimes, your argument was that this would be detrimental because, in the
current system, you can get people to plead guilty.
Mr. Kirby: Yes.
Senator Frum: We did a study here, before
Bill C-10 arrived, about how to have victims come forward more frequently to
report sexual assaults. We learned that some of the inhibitions for victims
to report are that they fear their offender will get a light sentence and
will be back in their midst very quickly, and the fear of that is
overwhelming. We also heard that when they think the offender will stay in
close proximity to them and they have charged them, that they have just
created a greater threat of violence against themselves. I want you to
respond to that, please.
Mr. Kirby: First, Judge Barry Stuart was on
CBC radio a couple of weeks ago. He was a judge in the Yukon for many years.
He came to recognize that offenders would be returning back to their
communities. Therefore, it does not matter if you give them one, two or
three years; they will come back. The point is you want to ensure they get
help in that time.
Coming back to the mandatory minimum question,
if you give someone 60 days on a minor sex offence against a child, is that
better than putting them on a conditional sentence for 18 months, ensuring
they go through a sex offender treatment program? They will not get sex
offender treatment programming within the 60-day penalty. They will not get
it within six months, and may not within nine months. We know when people
are sent to penitentiary, that you do not get the treatment until your term
comes close to an end, so that is a problem.
Getting to your first point, I do not have a
satisfactory answer for that. No one does. There is always a fear the
offender will return to the victim's community. In order for the victim to
feel safe, I would think the victim would want to know the offender has done
treatment and has been successful in that treatment. That is how I would
best answer that question.
Senator Chaput: I want to follow up on
Senator Frum’s first question about protecting our children. I fully agree
with what the senator said.
If we were not studying Bill C-10, would
predators, those who abuse our children, be treated in the same way or less
harshly? Does Bill C-10 allow for harsher sentencing for predators?
Mr. Battista: I think that Bill C-10 will
not change anything when it comes to predators. They receive penalties and
sentences that apply to those situations. Minimum sentencing will not change
anything, as it does not apply to predators. Once the minimums start to
apply to people being tried for the first time, people who may not go to
prison, those people will end up going to prison. However, those who are
currently being imprisoned will continue being imprisoned. Minimum
sentencing changes nothing. If you are asking me whether minimum sentences
will result in the better protection of children, I think that the two are
unrelated. The unfortunate thing about this is that, in the long term,
people who could have been rehabilitated will not be. We may needlessly end
up missing our opportunity with many people.
Senator Chaput: Does rehabilitation not
really apply to sexual predators who target children? Is it not true that,
often, those people cannot be rehabilitated?
Mr. Battista: A minimum prison sentence
will not help with that at all, but the monitoring society needs to do will.
I am talking about guidance.
Senator Lang: I know time is moving on
here, but I just want to make a couple of points.
Mr. Kirby referred to the Yukon, to Mr. Stuart.
I am the senator for the Yukon and have lived there all my life. I know the
place very well.
When it comes to sexual predators and the
circumstances and values of our society that have been so violated, it is my
feeling — and I have not heard any one of you recommend to us — that perhaps
we should have a law in the books where, in those extreme cases, those
predators are never allowed to go back to those communities. It is very
simple and straightforward, and the cards will have been dealt.
I want to move on from that. I think I would
like to move on to another point I would like to make. I have listened to a
number of your presentations, and I have listened to them over the last two
to two and a half years that I have been here. Very seldom do we speak of
the victim. We talk about the legal system, the offender and the
consequences to the offender. This bill talks to some degree about the
victim and the consequences to the victim. What I do not understand is, we
have had federal-provincial conferences over the past five years on this
legislation. There are nine pieces of legislation here. They have been
debated in various forms and various forums over the last five years. It has
been accepted in many cases across the country.
You have stated, Mr. Battista, that the
judicial system is working and you are satisfied with it. Yet, at the same
time, over the course of the last 10 years, people who have been afflicted,
namely the victims, have felt that offenders have not seen the consequences
for their actions and they have had to form organizations called victim
advocacy groups. What does that tell you? Does that not tell you that there
is a feeling out there amongst a good size of the population that this
judicial system is not working and that there must be more consequences
built into our legislation so that we as the general public recognize that
our rights and our safety is being taken care of? I would like to hear from
the Canadian Bar Association as well as Mr. Battista, if I could.
Mr. MacRury: With all due respect, I
respectfully disagree with your assertion. For one thing, on a personal
level, I stand up for victims every day, quite frankly, whether it is
prosecuting murders or shoplifting. I have for a long time. I was involved
on a personal level with the first victim implementation legislation in Nova
Scotia. We have certainly evolved in our legal system in terms of victims
are more involved than they used to be, which is a good thing for your
system. I encourage that, but it is not a situation for justice for victims.
It is not an "us" or "them." It is justice for everyone that participates in
the system. The CBA believes, quite frankly, that, yes, you are given the
impression that you will give more to victims in this legislation.
Earlier, we talked about resources. If
resources are not coming, I can certainly tell you that victims will not be
happy when cases are thrown out for delay. It is not good enough to say "we
told you so" at that point in time. The reality is that the system will not
sustain this piece of legislation. If you are committed to victims, I would
respectfully submit, then, that you should fund the legislation as opposed
to saying that it is not our constitutional responsibility, it is the
province's. I would respectfully submit to you that you have to be
transparent about it as well. On the ground, the resources are not there to
implement the legislation and, at that point in time, you are putting false
expectations on victims, which is not fair.
Senator Fraser: I believe Senator
Lang also wanted to hear from the Barreau du Québec on that point.
Mr. Battista: May I respectfully disagree
with your comment that this legislation addresses victims. Respectfully, I
do not think there is much in this legislation that deals with victims.
There is some mention in this legislation about the presence of victims at
hearings on conditional releases. However, in the Criminal Code amendments
on youth protection, there is nothing in there about victims. All there is
there is about sentences, what sentences can no longer be employed and what
measures can no longer be applied to people who are accused of offences.
However, there is nothing in there about victims.
In my representations and submissions, I did
address the issue of victims and we at the bar have consistently supported
victims' rights in the judicial process and in the system. What we say is
that they need support, aid and help. When a person has been violently
assaulted, they need therapy, and that needs to be supported and supplied to
them. If the federal government wants to force legislation onto provinces,
for example, maybe one thing it can do is say it will give money for these
things. We will find the budgets to be able to help victims go through the
system. When victims suffer personal damage, material loss and emotional
loss, they need support. They do not need a sentence for an accused. You can
give the accused the sentence you want; that person who needs help needs to
get it, and this legislation does not address that, with respect, senator.
Senator Lang: With all due respect, this
legislation does meet what a lot of the advocacy groups for victims have
asked for. They want to see a framework of legislation in place where there
are some consequences to offenders' actions as opposed to, in many cases,
where it is delinquent and it is not there. I would submit that and I would
disagree with your observation, if I may.
I would like to go to another point, if I
could. We talked about the delays. I guess it does not matter what laws we
pass now, according to what Mr. MacRury says; we cannot cope with the cases
that are before the bar now so this will bring further cases before the bar.
At least I would feel better knowing that, at the end of the day, there
would be consequences if a case would be dealt with.
As the Canadian Bar Association, instead of
coming here and always asking for more money, have you looked at the
procedures and how the courts are proceeding in these court cases to see how
we can shorten up these time frames so we can meet those present-day
Mr. MacRury: I can tell you that in my
jurisdiction we are doing that now. We have a diversion project, for
example, on native hunting. We have restorative justice programs in my
jurisdiction. We are doing those types of projects right now to try to put
efficiencies into the system.
Quite frankly, it is a situation where you have
to advise someone on the ground that this is a problem. You can ignore the
problem and say we are being tough on crime, but, if you put this
legislation in place, the system will not sustain it. That is the reality on
the ground. You can ignore it, but that is the reality.
Senator Lang: Over the course of the last
five years you have seen, I believe, a $30 billion increase in transfer to
the provinces for the purposes of running the various provincial and
territorial governments. Do you think that is enough for the various
provincial and territorial governments, because justice is one of their
Mr. MacRury: I guess we did not deal with
that in our brief, but I can certainly tell you that the CBA passed a
resolution this summer that basically said legislation must come with a
price tag and cost. My question is: Have you done a cost analysis with the
provinces and come up with legislation as opposed to looking at it from a
federal point of view? The majority of implementation is on the provincial
level. Before you pass the legislation, you should find out if it is
sustainable. My concern as someone in the field is that I do not believe it
is sustainable. If you are committed to it, then I am saying be true to your
commitment and fund it.
The Chair: Senator Fraser, do you have a
Senator Fraser: I had two. One is a point;
the other is a question.
The point had to do with Senator Lang's comment
where all elements of this bill have been studied and debated. Only two
elements of this bill have ever been before this committee. The other seven
are new to us. I think you will find that almost all of the questions have
been directed to those seven elements.
My question is for Mr. Trahan. It is about
lawmakers’ attitude toward victims. It seems to me that one of this bill’s
provisions was drafted bearing in mind the consequences of a young person’s
actions on victims, but the scales were perhaps tipped too much in that
direction. I am talking about the definition of a "violent offence" that
167.(3) (a) an
offence committed by a young person that includes as an element the causing
of bodily harm;
There is no mention of the intent or the
understanding the adolescent would or should have. That is even more
surprising to me, given the fact that, later on, on the next page of the
bill, it is recognized, just as the Supreme Court has recognized, that:
168.(2) (b) the
criminal justice system for young persons […] must be based on the principle
of diminished moral blameworthiness or culpability […]
That means young people have a lower ability to
understand, grasp and judge.
Some people, including Professor Bala from
Queen’s University, are saying that the definition of "violent offence",
should include an element of intent or understanding. Would you agree with
Mr. Trahan: That could be an option. I
talked about that indirectly when I answered Senator Joyal’s question. I
said that the new definitions were very broad. If your suggestion is a way
to reduce the practical broadness of the definition, it could be a
possibility. However, it is also important to realize that those penalties,
as set out, result in adolescents facing very serious consequences for
committing such offences. Based on that, many things, such as taxing and
intimidation, would be considered violence. We are talking about threats. A
situation could involve a boy at a school doing something to a young girl,
something "harmless", but we would be talking about similar penalties,
depending on how the incident develops. Clearly, intent becomes important,
but also, in terms of the Criminal Code, offences are intrinsically related
to the outcome. That must be considered.
The answer could be yes, but I am not sure I
can answer yes or no to this question, as it is worded. There are many
elements to consider, and the definition, as it is set out in the
legislation, currently involves consequences for many young people that I am
not sure we would like to see.
Senator Fraser: I would have liked to keep
Mr. Trahan: Me too.
Senator Fraser: I have read your 100-page
brief, Mr. MacRury, and I congratulate you on it. It is clear and really
easy, even for a non-lawyer, to grasp. I thank you very much. I thank you
all very much.
The Chair: We are considerably over our
time and really appreciate the contributions you have made today. I have one
final comment, and I guess this will conclude this panel.
There has been considerable discussion
concerning how Bill C-10 could impact the Aboriginal community. I have heard
you express the concern that the mandatory minimums are particularly
problematic or inconsistent with the principles of sentencing in the
Criminal Code. In particular, section 718.2(e) requires a judge to
consider the special circumstances of Aboriginals. That type of provision
applies only to Aboriginals and not to others in society. The mandatory
minimums would be inconsistent with that because they would remove some of
the discretion of the judge in sentencing Aboriginals. You refer to the
Gladue case — the Supreme Court of Canada decision in Gladue — as
an authority for that concern. I have a couple of excerpts here from the
Gladue case that I would like to read to you. One is that:
However, s. 718.2(e) is not to
be taken as a means of automatically reducing the prison sentence of
aboriginal offenders . . . . It is also unreasonable to assume that
aboriginal peoples do not believe in the importance of traditional
sentencing goals such as deterrence, denunciation, and separation,
where warranted. In this context, generally, the more serious and
violent the crime, the more likely it will be as a practical matter
that the terms of imprisonment will be the same for similar offences
and offenders, whether the offender is aboriginal or non-aboriginal.
Again, that is directed to offences that are
more serious and violent.
In Minister Nicholson's appearance
last week, he was very clear, I
thought, that the focus of the bill was just on the more serious and violent
crimes. From his perspective, Bill C-10 is completely consistent with the
Gladue case as it relates to the sentencing of Aboriginals.
Mr. MacRury, I would be interested to hear your
comments on that.
Mr. MacRury: Earlier, I believe I referred
the senator to the exception that you cannot get a conditional sentence, for
example, for fraud over $5,000. That is not uncommon in First Nations
In my jurisdiction, I manage the largest First
Nation communities in my community. Eskasoni, for example, has a court that
sits every Tuesday, and these principles are dealt with all the time. This
will have an effect on my community. I would suggest to you that those
quotes from Gladue are correct. It does not give an automatic right,
but it gives a right for the judge to consider it. It would be in the
context of the offender. It would be in the context, for example, of a
Gladue report, which is difficult sometimes because they are always
struggling to get federal funding to do those reports.
I would suggest to you that we respectfully
disagree with the minister and that it will have an effect on First Nations
communities. It will certainly affect how we deal with Gladue matters
The Chair: Has it not been your experience
that victims have come to you and have — to follow up on the point made by
Senator Frum — said to you that the offender must be removed and that they
fear he or she returning? For a reasonable period of time, it is necessary
to separate that person from the community. Again, I think the separation of
offenders is consistent. My question for you is, have you not had the
concern expressed to you by victims that the tools are needed in the
Criminal Code to provide that type of protection for that period of time
while they are separated from the community?
Mr. MacRury: Certainly I have had
experience with victims who are very fearful of offenders, and that is
always taken into account. I can tell you, as a prosecutor, that that would
go into my sentence recommendation right now, before Bill C-10. I do not
think that would change, quite frankly. It comes down to the context of what
you are dealing with.
We are both alumni of UNB. My old criminal law
professor always said sentencing is a context. I would respectfully suggest
to you, senator, that those tools are already there. I think it is
important, as a player in the system, to sit down with victims and tell them
what is going on. When they are informed of what is going on, that is so
important. Part of the problem has been that they get misinformation, and
that creates some of the problems as well.
The Chair: The tools may be there, but the
sense is, certainly in the Aboriginal communities, that there is a higher
degree of victimization occurring there than in the rest of society. The
tools may be there, but it seems to suggest the tools are not working to the
extent necessary to properly protect the innocent.
Mr. MacRury: We can disagree on that.
The Chair: That is right. It is just an
Senator Baker: Point of order, chair. Your
questions were very important. In fairness to the other witnesses, if either
of them wishes to comment on your questions they should perhaps be given an
opportunity to do so.
The Chair: Mr. Kirby, your focus is on
Aboriginal communities. Would you like to comment?
Mr. Kirby: My example was that if you give
someone a 20-month conditional sentence followed by three years of
probation, that offers the opportunity for the judge to forbid the offender
to return to his or her community.
There are also section 810 peace bonds that
allow — it is very convoluted and complicated — the Attorney General to
institute proceedings, once an offender has been released from jail or has
served his or her sentence, to get a peace bond to prevent the offender from
having contact with the victim. Perhaps you need to amend the Criminal Code
to allow judges to make long-term noncontact orders. You can calm them
probation orders, peace bonds or whatever you want.
The Chair: Thank you very much for that.
Mr. Kirby: As I say, there is section 810,
but it is not the best process.
The Chair: That concludes our time with
this panel. I truly want to thank each of you. I think there are at least
eight lawyers around the table and a number of other people who know the
real world. It is amazing that, in two hours and fifteen minutes, we covered
the areas we did. Your input is important and valuable to us. We thank you
sincerely for that.
Colleagues, we will continue with our
consideration of Bill C-10. We have with us, for our second panel today,
from the Canadian Council of Criminal Defence Lawyers, Mr. William Trudell,
Chair; and from the Canadian Association of Crown Counsel, Jamie Chaffe,
I believe, gentlemen, you have each an opening
statement. Mr. Chafe, do you wish to start?
Jamie Chaffe, President, Canadian Association
of Crown Counsel: The CACC represents organizations, in every province
and federally, of front line prosecutors and civil government lawyers. As
such, we are here representing the 7,000 or so people who must carry the law
of this Parliament into effect.
As quasi-judicial officers, we do not comment
on the pros, cons, good or badness of particular legislation. Our sole
purpose is to provide you with the front line perspective of systemic impact
of proposed legislation. We provided a report which is more detailed than my
opening comments can be. In short, the proposed enactments in Bill C-10 will
have a significant impact on the workload of the criminal justice system, a
system which includes police prosecutors, defence counsel and Legal Aid,
judges, court staff, probation and parole services, as well as corrections.
The proposed Criminal Code amendments increase
mandatory minimums, create new mandatory minimum sentences, create new
criminal offences and further restrict those offences that are eligible for
conditional sentence. We predict that many charges that would have been
divert the out of the court system by way of guilty plea will now instead go
to trial and more accused will receive jail sentences.
The proposed CDSA charges will increase the
number of cases that go to trial in like manner and will also increase the
number of bail hearings. The YCJA changes will increase the number of
trials, the number of identity hearings, bail hearings, as well as
applications for adult sentences.
The added workload that Bill C-10 will add
after enactment is a serious problem. It is a serious problem given the way
the criminal justice system is currently resourced. Because of the way
things are, it will negatively impact on the public safety of Canadians, the
rule of law and public confidence in the administration of justice in
Canada. Why? Because this legislation is being enacted without providing the
necessary resources to build the criminal justice system that can actually
implement and enforce these laws; because the enactments will add more
trials to a system that cannot do the trials it currently has, much less
more; because these new laws will continue to expand the Criminal Code in a
criminal justice system that can only enforce a shrinking part of present
How deep is this criminal justice deficit?
Well, in the brief I provided you, there is a province-by-province state of
the union. Briefly, you may have observed in The Globe and Mail
yesterday an article on the British Columbia criminal justice system, which
is absolutely on the brink. There is one stat. The provincial court judges
in British Columbia are currently at their 2005 staffing complement. There
are at least 20 positions in the provincial bench that have not been filled.
This is in a court system that is daily staying prosecutions for delay.
Ontario's criminal justice system is overburdened. There was a provincial
acknowledgment of that in 2007, namely that it was in a state of crisis.
Despite that, efforts to add resources to that system have been abandoned.
The new strategy is to divert work out of the system instead of adding
resources. There are significant portions of the Criminal Code that we are
not able to enforce in certain jurisdictions as a result.
As you know, Quebec has just begun to rebuild
its criminal justice system. It is a task that will take the better part of
a decade. It will require sustained and new investment, as they continue to
deal with workloads that are beyond their capacity and they tackle new work
with respect to corruption and organized crime. Manitoba is in much the same
boat. They are rebuilding their prosecutorial service. It is a job that will
take a decade, requires sustained resources and new resources as well. Nova
Scotia's prosecution service is staffed at the same level at which it was
struggling to meet its 2005 complement of charges. Of course, charges have
gone up by 20 per cent in 2011. Newfoundland and Labrador, New Brunswick and
P.E.I. continue to struggle with limited staff and increased workloads.
As you know, the federal prosecutors and
Department of Justice lawyers will face significant increase of work with
Bill C-10. At the same time, they are waiting to see how deeply their
numbers will be cut by the federal government in the oncoming budget.
What support is out there for this new
legislation? It appears that Alberta, Manitoba and New Brunswick agree that
they must support this new legislation with new funding and they have
indicated on the public record that they will do so. They have only
mentioned prisons thus far; nothing about what resources will need to be
added to the rest of the criminal justice system.
Senator Angus: What were the three
Mr. Chaffe: Alberta, Manitoba and New
Ontario, British Columbia and Quebec agree that
this new legislation will require more resources to operationalize, but they
have indicated that they will not provide them.
I will use an analogy that people near and dear
to me have told me not to use, but I will anyway. Imagine the justice system
is a bucket and the work is water. You only get justice if it comes out a
spout at the bottom. We are at the point now where the work has poured in
and much of it spills out over the top and winds up on the floor. That is
the system we have now. Bill C-10 will increase the flow of water into the
bucket, but only more of that will wind up on the floor.
It is a bad analogy because the work in our
system is justice. Charges of criminal conduct are laid. These charges
contain allegations of injury to real people — to people who have had loved
ones murdered, to people who have been sexually or physically abused, to
people who have had their homes broken into, to people who have been
deprived of property by theft and been deprived fraudulently of their homes
or life savings. Our system is supposed to give victims of crime an
opportunity for justice and our communities’ protection from dangerous
people. The system is beginning to fail more and more of these people. They
lose their opportunity for justice and those who have committed crimes are
free to go and do so again.
Likewise, accused persons are entitled to and
expect justice. An overloaded justice system means, unfortunately, an
increase that persons are going to be wrongfully convicted. An overwhelmed
justice system impacts directly and negatively on public safety. It also
impacts negatively on the rule of law. Given the scenario that we are facing
now, with three provinces that are indicating they want to support this law
financially and three very publicly saying they are not going to, we have a
Criminal Code and a different standard of protection for communities based
on the willingness of their particular jurisdiction to provide criminal
justice infrastructure to support the Criminal Code.
It also has as a profound impact on public
confidence in the administration of justice. The "water on the floor," as
you know, is real people. They are cases that are not reached. It is
lower-end property offences that diverted out of the system and there are
accused people who are wrongfully convicted.
The Canadian Association of Crown Counsel
strongly recommends that a national justice summit be convened as soon as
possible. Attorneys general and leaders in the justice community need to
focus on the significant and real challenges facing our national justice
system. There are issues like relevance. Will the criminal justice system
remain relevant to communities? There are issues like can we have a national
consistent Criminal Code, criminal law policy across the country? Perhaps
the most important issue: Can we restore justice programs to core funding?
Canada's predicated on the rule of law. This
should be a core funding issue for government. It is not. Education and
health care are very important. Justice deserves that same kind of priority.
Our system currently is overwhelmed with work.
Ladies and gentlemen, time is of the essence. The deleterious impact of
legislation that has increased workloads over the last 10 years has
continued unabated by core funding. We can reasonably expect the impact of
Bill C-10 within about nine months of its enactment. We need to get together
so that we can agree and find a way to protect the rule of law and arrive at
a national effective and viable criminal justice strategy.
The Chair: Thank you, Mr. Chaffe.
William Trudell, Chair, Canadian Council of
Criminal Defence Lawyers: Thank you very much on behalf of the Canadian
Council of Criminal Defence Lawyers, which I was reminded will be 20 years
old in November. One the important works that we do is appearing in the
house and the Senate to help you, as best we can, with your role as
legislators. We are really grateful for you taking the time. My dear
colleague and I watched the proceeding two hours. We know how hard you
worked, and we know some of the issues that are of concern.
I would like to leave you with a focused
approach on behalf of the Canadian Council. I have never, in my experience
as a defence lawyer, witnessed a time over the last two years where there
has been such collaboration, conferences, and meetings of the minds of all
justice participants, judges, Crowns, the police — way ahead on many
issues — caseworkers and correctional officers. There have been a series of
meetings where we found out, over the last couple of years, that we have
more in common than we have differences.
One thing we have learned is that we have to
stop thinking in silos. One of the other themes that I want to emphasize
today that has come out of the conferences is the issue of mental health and
criminal justice. I know you have heard something about it in last couple of
hours, but just let me indicate to you how things have really changed, in my
respectful submission, in terms of the issue of mental health in our
community, in our country, and in criminal justice.
It is a real honour to be here on Bell Canada's
Let's Talk Day. Right across the country, people are talking about mental
health. It is an extraordinary event, and it has captured all kinds of
interest. The same theme has gone through the conferences — mental health is
a real problem that we all need to deal with in criminal justice. Things
have changed, in my respectful submission to you, even since these bills
were introduced and drafted. They have changed in a couple of ways. This
government — the Conservative government — should be credited. We credited
them in the house, and I do it again now, for their attention to mental
health. The Mental Health Commission is very important.
In Calgary last spring a conference was
sponsored by Canada and by Justice Alberta. Building Bridges, it was called.
It talked about mental health, and the government was very proactive in
relation to that issue. One recommendation of the Building Bridges
conference that I will refer you to is that there should be an exemption in
the Criminal Code; we should address the issue of mental health.
Two weeks ago, the press release of the First
Ministers Meeting in Charlottetown addressed the issue. All first ministers
are concerned about mental health and its impact on criminal justice. When
this bill was introduced, things had changed in terms of the dialogue and
attention to mental health. I do not think I would be criticized for saying
that no person in any government office — no police officer, judge, Crown
attorney, defence counsel, correctional officer — would not say to you that
we have a crisis in this country in relation to mental health. When we
looked at the bill, we saw that there was no mention of mental health. It
was just silent, and we did not think that this fit with the government's
initiative, with the discussions that are going on, and with the progress
that has been made over the last year in addressing this issue.
Before the house committee — and I have given
it to you again — we introduced an amendment. The amendment basically
tracked section 43 of the bill. Section 43 says, in effect, that if — and I
gave you a copy of that — a person has a drug addiction, a judge can suspend
the mandatory minimum, suspend sentence, send them for treatment and not
have to impose a mandatory minimum. We thought that this was a very
important piece. The bill is silent on mental health. I leave the amendment
with you. It provides for the issue of mental health. It is crafted in
relation to mandatory minimum, but I heard the discussions that took place
before. The issue here is that you have an opportunity. I listened to my
colleagues from the Canadian Bar Association who sort of introduced the same
thing, and they suggested that maybe some kind of provision go in the
principles of sentencing.
With great respect, we are not masters at
crafting this, but I would respectfully submit that this is an incredibly
important opportunity for you, as legislators, to introduce a provision that
does not take away from the purpose of this bill. It is your job as
legislators to introduce the legislation as you think appropriate, but there
has to be a collaborative approach, as referred to by my colleague,
We know and you know — it is available — that
statistics of the number of people in custody suffering from mental illness
are staggering and embarrassing. This was discussed at the Building Bridges
conference. I think that Minister Toews addressed this issue when he
appeared here. It is a fact that we should not ignore. It does nothing to
change this bill. As a matter of fact, I would respectfully submit to you
that it promotes safer streets and communities. We have presented the
amendment dealing with mandatory minimums, but it does not have to be that
restrictive. With great respect, it does not make sense, that this bill is
silent on an issue that everyone — regardless of party — knows is a problem.
When first ministers say, "We are going to do something about it," when
Building Bridges recommendations said we should look at an exemption, when
the entire country is talking about mental health, then, despite the fact
that this bill was introduced without it, a great service can be rendered by
the Senate by you suggesting that this aspect of criminal justice that was
left out of the bill be included. That is the focus of my suggestion to you
today. This does not come just from the Canadian Council; this is so
widespread. The police community has been way out front and are leading on
this issue. Of course, the police are at the front end. The police know what
to do with people who are suffering from mental illness and become chronic
offenders. The criminal justice system is not a health system. At a
conference, a senior correctional officer came to me and said, "Our
institutions, our facilities, are being turned into hospitals."
There is a simple way to do this. Recognize it
as a problem in this bill. It does not take away from the thrust of the
bill. Whether you agree with mandatory minimums or with taking away
conditional sentencing — and you know, as a defence counsel, what my
position would be on that — does not matter. We have left something really
important out of this bill, and it is our respectful in submission to you
that you can easily put it in. I would expect, when first ministers talk
about doing something about it and when Building Bridges, sponsored by
governments in Ottawa and Alberta, say that it is one of the issues we
should be addressing, that that means it will be done. It is being
considered right now. I do not think there is any doubt about it. It would
be wrong to pass this bill and then say, "Oh, well, we are going to do
something about mental health later." If it is an issue, address it. That is
our message to you, and thank you very much.
Senator Fraser: I have two questions, one
for each witness. I will start with you, Mr. Trudell. Welcome. I did not get
a chance to say "welcome" before beginning the proceedings here.
I am very interested in your proposed mental
health provisions that you suggest here. What I do not quite understand is
why you are just talking about putting them in the Controlled Drugs and
Substances Act. Clearly mental health will be a serious problem for many
people with addictions and disorders, but also for many other folks. Why not
make it more general?
Mr. Trudell: Senator Fraser, I was not
restricting it to the drug situation.
Senator Fraser: That is where section 43
comes, and I thought that was where you were going to put it.
Mr. Trudell: I was saying it has been
recognized as an exemption and a concern in section 43 in the drug issue,
and mental health is not mentioned anywhere. This is not specifically
related to the drug situation.
Senator Fraser: You want it to apply across
the board, including the drug bill and everything else?
Mr. Trudell: Absolutely. We are saying it
is in the drug part, but why has it not been addressed?
Senator Fraser: I suppose it is, all right.
You are clarifying my mind there, and I thank you very much.
Mr. Chaffe, this is not the first time you have
come to warn this committee that the system was getting clogged, and you are
not the only person to have uttered that warning before us. I wonder if you
could give us more specific examples.
I am assuming murder will always be prosecuted
properly. If jaywalking were a criminal offence, which it is not, it
probably would not be prosecuted because, on the great scale of things, it
would not rank very high.
Where in that scale are the areas where now or,
in your view predictably, corners will start being cut that the public would
not want to see cut? You were quite eloquent in your warning that things are
getting to the point where the actual integrity of the justice system can be
imperilled, but I would like to have some concept in real terms of the kind
of thing we are talking about.
Mr. Chaffe: As more work is being added to
the system, senator, we have to triage more out.
Senator Fraser: What gets triaged out?
Mr. Chaffe: In our busiest jurisdictions,
property offences are the first target. We preserve the precious court space
that we have for our most violent offences.
As the workload increases, we are forced to
choose between serious offences. Certainly serious property offences are
targets now, particularly fraud cases. You may have witnesses on "The
National," about six months ago, a furor over a multi-million-dollar Ponzi
scheme not being prosecuted in our largest and one of our busiest Crown
offices in the country, the downtown Toronto office. It is all there for you
to Google. You can have a look at it.
The Crown in that office was placed in an
untenable position, a very serious multi-million-dollar fraud, but needed
court space for all of the other serious prosecutions going on in that
office, including sexual assaults and other violent offences.
In terms of what we are able to prosecute with
some vigour, the circle of those offences is becoming more and more
circumscribed over time. It is having, we think, an impact not just on the
police, who come to us with some regularity complaining about what we have
done with their case, but it is having an impact on victims of crime. I
think you see that in Statistics Canada statistics where you see the
reporting of crime is significantly down. We are seeing it, and we have for
some time, with respect to violent offences and people willing to come as
witnesses. Why would you come as a witness if you will not succeed with the
prosecution and the person will not be caught and held safe for the
testimony he has given?
There is a tipping point, I suppose. I am not
skilled enough or I do not have enough information to tell you when and
where that is occurring in communities across the country. As workload
continues to be added to the system, without any resources to support it, it
is approaching passing it in some communities, and in others we are just
starting that degradation.
Senator Fraser: Over the past few years we
have heard, several times, warnings of discretion being moved from the
judges to the Crowns. What you are saying is that that is happening,
Mr. Chaffe: Obviously mandatory minimum
sentences remove some discretion from judges.
Senator Fraser: If the case gets to court.
Mr. Chaffe: The primary focus of what we do
is trying the case. The sentencing is kind of the gravy part of the job. We
have actually prosecuted a case and, from our perspective, justice has been
done and then a conviction. The sentencing is more or less up to a judge.
Senator Fraser: I understand that point,
but let me put my question a little more precisely. Are you finding more
plea bargaining going on as just a way of shovelling stuff through?
Mr. Chaffe: That is how we triage cases out
of the system. That is how we preserve valuable court resources for the most
violent offences. We have to somehow lighten our load of these other cases.
I think your comment is fair that with the
addition of mandatory minimum sentences, with the restriction of cases that
are available for conditional sentences, more discretion is not necessarily
being handed to the Crown, but less discretion is available to the judge,
and that enters into plea negotiations. You are dealing with front-line
prosecutors who are trying to do their jobs responsibly and take public
safety as their primary focus. Those are the principles they apply to this
At a certain point, however, that exercise is
motivated by expediency. It runs up against our obligation to support the
rule of law.
Senator Fraser: I would not want to leave
anyone with the impression that I am accusing the Crowns of being in any way
derelict in their duty or anything like that. I am trying to figure out what
you do in the real world.
Mr. Trudell: I think my friend is being too
polite in some respects. There are two issues here. This is one of the
issues of talking in silos. I hope that Senator Angus will ask me the
question about the separation of the legislation and the administration of
The government has a responsibility to properly
fund front-end management of cases before they get into the system, and
proper screening and proper diversion. Otherwise, the flood is incredible
and you just cannot manage.
Therefore, with great respect, the Crown has a
new role, and it is a much more powerful one: The Crown will decide what
gets prosecuted and what is proceeded with by summary conviction or
indictment. As a defence counsel, if I am dealing with Mr. Chaffe, that is
fine, but in principle it is a burden they should not have and one that I do
not think is appropriate.
When the law changes, we must understand the
impact of it. If you want to put your energies in A, what you will have is a
domino effect with B, and the system is not equipped to do it. It is
To come back to what I was saying in the
beginning, you will find, in the criminal justice system, an enormous number
of cases on breaches of administration of justice offences, such as failure
to appear, breach of probation, those sorts of things. The people committing
those offences, often times, are persons who are mentally disabled,
depressed, disoriented, homeless, Aboriginals or dealing with addiction
issues. If we address that kind of thing on the front end, then the proper
function and resources can be given to the Crown.
Look, there may be big cases that do not get
prosecuted and people get upset about it, but what I as a defence counsel
want to see is a properly funded case for the Crown so we get the disclosure
and appropriate time. You have management in the front. Bill C-52 does that
with big case management, but we are talking silos and we cannot any longer.
To come back, my friend Mr. Chaffe is being too
The Chair: Thank you, Mr. Trudell.
I will turn now to Senator Joyal. Again, I
would ask all colleagues to be as concise as you possibly can be with your
questions; similarly on the responses. If you get your points across, which
I know you will, but do so in as few words as possible, it would be much
Senator Joyal: Mr. Trudell, your comments
about mentally ill offenders is a very important one, but how do you connect
that with the mens rea for a person who finds himself in front of a
court of justice? The judge must be convinced that the person in front of
him or her has the capacity to form mens rea, and someone who suffers
from mental illness is not in a position to prove mens rea to a point
where the judge is convinced that that person should be found guilty.
Mr. Trudell: There is a clear distinction
between not being criminally responsible, not having capacity, not
understanding the nature and quality of the act, which results in a not
criminally responsible — formerly insane — verdict. I am talking about that.
I am talking about the people who may be suffering from fetal alcohol
syndrome, who may be majorly depressed, who just lost their jobs, who have
family tragedies, who are disoriented, who have addictions or are homeless.
There are a lot of different forms of mental
disorders. Some are defined in the DSM, but that does not catch the wide
net. Senator Joyal, I was not trying to move into that clearly defined area.
I am talking about the people that the police are dealing with on the
streets, those who end up in the criminal justice system and in a jail,
unfortunately, and who should not be there. It is a health issue. When
government sits down at the table and says, "No, this is a justice issue.
This is a health issue. This is for social services," that cannot happen any
longer. It must be a collaborative approach. Does that answer your question?
Senator Joyal: Yes, it establishes a
distinction that I think is important to be made.
Mr. Chaffe, I know we are under a time
constraint. I do not know if you are aware, but when the president of the
police association came to testify last week, his brief ended with the
We hope that the federal government and
their provincial partners can quickly come to an agreement on how to
best address the funding concerns without delay.
Were you aware that the police association
seems to have the same type of preoccupation as you so that, if this bill
were to be implemented with the utmost of efficiency, there is an underlying
financial problem that needs to be addressed? When the two ministers
testified last week before this committee, I suggested there should be a
joint task force between the provincial and federal government to follow the
implementation of many sections of this bill where we know the onus will be
more concentrated. However, this seems to be inescapable as a decision if we
want to be true to the sentencing legislation and safe streets and
communities. Without that cooperation, I think that this bill will remain at
the level of good political speech. However, in terms of real protection of
the public, I think it will miss the point.
Mr. Chaffe: I was not aware of the
testimony from the president of that association. I am not surprised that
they have taken that position. Perhaps more than any other institutional
player, the police are acutely aware of what resources are required to
charge and successfully prosecute. When I say "successfully prosecute," I
mean getting a just result; I am not talking about winning or losing.
Please, do not take me at that.
It seems obvious that this must be resolved.
This is pretty special legislation. This is federal legislation that deals
with criminal acts, not just in the Criminal Code but in the CDSA and the
YCJA. Attorneys general are special people, constitutionally, provincially
and federally. It is the position of the CACC that there is a constitutional
obligation on government to enact laws but to ensure they can be
operationalized. That is something that is not happening.
It is sometimes enormously helpful to have new
criminal law, but in the present situation that we have regarding a system
that is completely overwhelmed, adding more work through new legislation,
without resources, does not help. In fact, it will exacerbate an already
very difficult and troubling situation.
The Chair: Thank you for that, Mr. Chaffe.
I think we got your point, loud and clear.
Senator Runciman: Mr. Chaffe, I do not
argue with your assertion that more funding is required, but I think there
are pretty significant systemic problems as well within the system. It may
be time for a royal commission to look at Canada's justice system and all
the challenges. Of course, you have individual Crowns who make decisions,
for example, the one recently charging a fellow who scared off people trying
to burn down his home with unsafe storage of ammunition. You have to wonder
about the individual decisions of some Crowns and their workloads.
I like to use this example of a fellow that
comes from my community who was arrested for smuggling drugs into Great
Britain and went to trial three weeks after being charged and dealt with. We
saw that with the riots in Great Britain, where the offenders were in front
of the courts within a week or two. I think we have some serious systemic
problems in this country that need to be looked at as well as the whole
Dealing with the legislation, I did not have a
chance to talk to the CBA about this, but I know that they have expressed
concern; I think the Barreau du Québec has as well in terms of the Youth
Criminal Justice Act and the ability of giving judges increased discretion
when dealing with young offenders, especially the pre-trial detention. This
is flowing out of the recommendations of the Nunn commission in Nova Scotia.
These are chronic offenders and a judge will now have the ability, if he or
she poses a danger to society, to keep them confined until the trial date. I
just wonder what your experience as a Crown has been in those kinds of
situations. Do you think this is a needed initiative?
Mr. Chaffe: Senator, I certainly respect
the question. I am not able to comment on the good or badness with respect
to this particular piece of legislation. I will say this, though. Part of
what existed before under the YCJA was some sort of contemplation of whether
or not there would be potential for an adult sentence and contemplation of
whether or not there should be judicial interim release. That was a
problematic thing in youth court bail hearings.
I will say that this legislation, particularly
around judicial interim release, has certainly clarified that area.
Systemically, though, I think for some of the reasons you have itemized,
there will be more bail hearings. The Crowns likely will apply for detention
more. The upshot of that is that more young offenders will be held in
custody. I think that is a fair assessment systemically.
In terms of my ability to comment on this piece
of legislation —
Senator Runciman: The judge will make that
determination based on his or her views with respect to public safety.
Mr. Chaffe: Of course. In terms of systemic
impact, I think we will have more hearings and likely more youths in
custody. For us, the systemic issue is do we have time to do them. Youth
courts traditionally in this country have had the lowest trial rate. The
YCJA as drafted now will increase the trial rate in that category of courts
across the country.
Senator Runciman: Which I personally agree
with. In any event, that is another issue.
Mr. Chaffe: Many people agree and disagree
even within my own membership.
The systemic issue is how do we deal with the
resource implications? We have had a court that we have been able to run
more or less on a shoestring. Those days will be over.
I will stop.
Senator Runciman: Mr. Trudell, what
province are you in? Ontario?
Mr. Trudell: Yes.
Senator Runciman: You referenced the lack
of amendments related to mental health, and there is one change in the
Corrections and Conditional Release Act in terms of the purpose and
principles. In clause 54 of the bill, proposed section 4(g) of the
act states that "correctional policies, programs and
practices respect gender . . . differences and are responsive to the special
needs of women, aboriginal peoples, persons requiring mental health care and
other groups." There is a change, and it is recognized in the new act.
I share your concern about this.
Mr. Trudell: I know you do.
Senator Runciman: I do not think there is
the public awareness that there should be with respect to the challenges
posed to the system and the impact on public safety in terms of this issue.
You were suggesting an amendment so that this could be treated something
like the drug treatment option. How would you see that working?
When Minister Toews was here before us, he was
not terribly specific about this issue. He expressed his concern about it,
but he talked about the institutionalization processes that have been
undertaken place across the country over the past 34 years and suggested
this should be the responsibility of the provincial governments. That seems
to me to be a bit of a quandary going forward. Who is responsible for this?
If we adopted the amendment that you are
suggesting here, how would you see that working? Where would these
individuals receive appropriate treatment? I think you may be familiar with
the Ontario program — the secure treatment unit — which has been operating
for about six years in Ontario and is having an enormous positive impact on
recidivism rates. Doing something like that federally would also lessen the
load on courts, police and victims and damage to property, something I am a
very strong advocate for.
In terms of putting it into context with the
amendment you are proposing, how would we deal with the folks who will be
referred in that manner?
Mr. Trudell: Senator Runciman, I know you
have been keenly involved in these issues of mental health in the community,
and I am happy that you would focus and ask this question.
Let me answer it in two ways. A press release
from the first ministers, two weeks ago, says this:
Ministers acknowledged that mental
health issues present significant challenges for the justice system.
Ministers highlighted the success of the May 2011 Mental Health and
Justice Symposium in Alberta and discussed the Symposium's
recommendations. Ministers asked senior officials to further engage
their health and social service counterparts in reviewing the
recommendations and developing a work plan with the view of more
effectively managing this at-risk population.
That, to me, is not silo thinking. There are
the federal ministers and provincial ministers talking about social services
and health, everyone getting together and addressing this issue.
Therefore, in the perfect world, which we do
not have but will have, when an accused person comes before the court and
the judge, the Crown and the defence recognize that this person is suffering
from a mental disorder — does not reach capacity — there must be community
support services funded by the federal and provincial government because the
federal government has the law that brings them to the court. That person
goes into that program, and then the judge can decide, at a later point in
time, whether or not they should be incarcerated or whether they should have
mental health diversion, which we have in Ontario.
As to the question of how it would be
implemented, some regions have mental health courts and some have drug
courts, while others do not. In Vancouver and in Alberta, police are working
together, in terms of front-end involvement, with community social workers
and health workers at arrest stages. We need to follow up with what the
ministers are talking about, get everyone around the table and figure out
how to implement it right now.
Senator Frum: What percentage of the cases
are you talking about?
Mr. Trudell: Percentage of?
Senator Frum: The cases that come before
Mr. Trudell: Statistics show that 30 per
cent of people in federal institutions are suffering from some mental
disorder. Before they get to court, I will say it is 40 per cent, if not
Senator Frum, I have been defence counsel for
almost 40 years. I would probably suggest to you that there are not many
people, whether they are young offenders or older people, who I do not send
for counseling and for whom I do not try to figure out the unraveling. I
think the number of people with afflictions who, in frustration, commit
criminal offenses is enormous.
In terms of young people, the information I
receive anecdotally from people working in the industry is that they are
very concerned about the mental health issues affecting young persons.
We have the ability, the interest, the
infrastructure in government and the money to address this issue. We may
say, "Look, it will cost a lot of money," but it costs an enormous amount of
money to have that person in custody.
One thing you mentioned, Senator Runciman — and
I will end with this very quickly — is that the bill does reflect a concern
for mental health for persons coming out into the community. Clause 199 of
the bill talks about people being encouraged to be involved in programs and
institutions, and, thereby, they will earn their remissions. Clause 199
replaces subsection 6(1) of the act and talks about remission, and I
recommend it to you. It says:
. . . by obeying prison rules and
provisions regarding temporary absence and by actively participating
in programs, other than full parole, designed to promote prisoners'
rehabilitation . . . .
If you are suffering from a mental illness, you
withdraw. Sometimes, people who may be acting up in institutions look like
they are not buying into the program when they are acting out from a mental
We can save an enormous amount of money for the
overstretched court system by addressing these issues.
Senator Runciman: I do not disagree with
you. I guess, in theory, it is the way to go, but when you look at the
practicalities of deinstitutionalization, community supports were supposed
to be in place. They are not. We now see the corrections system impacted. We
see people lying on grates in the city of Toronto. That is the reality.
I guess I am a supporter of undertaking some
initiatives, not through the corrections system itself, but through private
providers like, on the provincial side, the Royal Ottawa, who are experts in
mental health treatment. The official from corrections here admitted that
they simply do not have the wherewithal. They cannot attract the
professionals. It is not the place to provide appropriate treatment.
Mr. Trudell: That is why I tried to say at
the beginning — and I may be taking up too much time — that I have never
before seen a situation in this country where the public, the community and
corporate Canada are engaged in the issue of mental health. This is a
remarkable day. It is a source of involvement, but the federal government
has a responsibility, when legislation is introduced, to look at the big
picture. A correctional official in Alberta said, "You plan a large prison,
but it is seven or eight years before the prison opens. By the time that
happens, it has outlived its shelf life and is too small." We can address
Senator Fraser: I have a supplementary
question for Senator Runciman. Your experience is unique in the Senate,
Senator Runciman — maybe even in Canada. Is it cheaper to send people for
treatment in a psychiatric institution than it is to send them to prison?
Senator Runciman: I can only talk to a
study that was recently done for the federal system providing a facility for
female offenders. There was a cost benefit analysis, and this is simply for
the treatment element. It was on a par what it cost in the federal system.
You have extraordinary situations sometimes in terms of inmates who cost
$300,000 to $500,000 a year to deal with. The other costs, which are tough
to quantify, are the cost savings to the Crown, victims, police and so on.
It is tough to get your head around that in terms of the downstream benefit.
Mr. Trudell: I add to that the repeat
offender. The chronic offender, we can recognize him and if you do not treat
him, you know what will happen; it is chronic and then the costs go up. If
it looks like it is on a par when we put it together, as Senator Runciman
said, looking down the road a little bit in a year, and we know that person
will come back because we have not dealt with the central issue, then the
cost is easy to suggest.
The Chair: Mr. Trudell, it seems that
everyone, I think including the minister and colleagues on both sides of
this table, recognizes the need for these mental health issues to be dealt
with more effectively than they are today. We can debate how and where and
resources, but there should be a change. I think we would all agree on that.
My question relates to the proposal that you
have made here today. If I understand you correctly, you suggested that
someone suffering from a mental health issue who agrees to treatment,
similar to a drug treatment court in the drug provisions, could receive
relief and an exemption from the mandatory minimum provisions that would
otherwise apply — someone who has a mental health issue, which may have
impacted the occurrence of the offence. What strikes me is how you determine
what mental health issue would entitle them to this exemption. It is not, as
Senator Joyal brought up, the same mens rea issue that is looked at
in determining whether the accused could have the intent to commit the
crime. You gave an example: In your words, you said, "Well, someone lost
their job and they obviously had a bad day and committed a crime." Would
that be an example of where someone could come forward and use that as a
basis to avoid the mandatory minimum? How would you define "mental health
issue" that would entitle them to the benefit of that exemption?
Mr. Trudell: We all have bad days, but I am
not talking about bad days. As you listen to me, you might be thinking that
this is getting to be a bad day. That is what a judge does. A judge will be
satisfied that this person is suffering from a real mental illness — a
health issue. You do not hold up your hand and say, I had a bad day. The
judge wants to hear some evidence of it and be satisfied. Post traumatic
stress disorder, for instance, could be an issue for a soldier coming back
after serving our country who has not reacclimatized to the country. There
are all kinds of things, and that is what the judge will do. The Crown will
say, well, we are not satisfied with that; but the Crown may also say, this
person sees this doctor or whatever. Collectively and collaboratively a
decision is made that in this particular case this person should not be
incarcerated because the judge is satisfied, the Crown is satisfied and the
defence is satisfied that this person needs help. Then, it is up to us to
find the place where he gets that help or she gets that help. They are out
You cannot narrowly define it, and I was not
trying to be trite. I am talking about major depression as a result of these
triggers. That is what judges do. That is what Crowns do. I would go to my
friend, Mr. Chaffe, and say, this is a real problem. Here is the background,
and a judge makes a decision or says no.
The Chair: To save time, I understand your
point. You are very clear in your response. Thank you.
Senator Jaffer: I found your presentations
very interesting but troubling. Mr. Chaffe, your pail example helped me but
that was sort of talking in the front end to get the cases started. One of
you mentioned that justice has to be seen to be done. For a prosecutor to
get a conviction after the charge, you have to prepare the witness, you have
to hand-hold the victim, you need the court time, you have to convince the
judge, and you have to prepare the case. With the resources you have, you do
not have time to do that. What happens to the convictions you will get?
Mr. Chaffe: For the most serious cases that
we have in the system, you will find that Crown attorneys across the country
are extraordinarily well prepared, for example homicides and other very
Senator Jaffer: I am not talking about
Mr. Chaffe: There is simply not time to
meet with victims in every case. I believe that every province has enacted
some sort of victims' bill of rights that has principles around keeping
victims informed with respect to the progress of their case, preparing them
for trial, giving them some sort of basic education about court processes,
except for the most serious cases and sometimes not even in those. Crown
attorneys simply do not have the time to fulfill those kinds of obligations
that are not only in provincial legislation but also in most of our Crown
Senator Jaffer: When I was the Chair of the
Canadian Panel on Violence Against Women, we made one main recommendation.
There is a lot of talk in this room about helping the victims. We said that
we need to have victims’ advocates that would help the victims through the
system because it is difficult to work through the system. I am not talking
about less serious cases. Do we have victims’ advocates in the court system
now? How are victims helped?
Mr. Chaffe: We have victim advocate groups.
Many provinces have victim witness assistance programs. Ontario's is very
good. It has taken an enormous amount of work off Crown prosecutors in terms
of preparation, meeting with victims, hooking them up with the services that
are necessary so they can come out of whatever has happened to them in a
much more whole fashion. It is variable across the country and is dependent
on the priority that provincial governments, and in some cases the federal
government, put on these kinds of justice issues.
The Chair: Senator Jaffer, I am sorry to
interrupt, but I have received word that our witnesses have to leave in 25
minutes because they have a flight to catch.
Senator Jaffer: I am sorry to be cut off
because I thought I had a very important question.
Senator Angus: Gentlemen, I thank you both
on behalf of all the senators here for taking the occasion of our
deliberations on Bill C-10 to bring forward two really important matters —
macro important matters, at least as I understand them.
Mr. Chaffe, we talked a bit before. I am very
involved in mental health, Mr. Trudell — more than I wish I were.
Mr. Chaffe, you have used the phrase, "the criminal justice deficit," and
you have given your lead-up to that. I concluded by summarizing what you
said: "The system is broken." Our criminal justice system is broken;
basically it is about money and related resources; it should be treated as
education and health, including mental health as a core funding issue in our
federation; and it is not being treated now.
I think you said to me — but I would like to
hear you put it on the record — that in the big picture, as characterized
just now, it is not a big number.
Mr. Chaffe: I think that is fair. The
justice budgets — and Senator Runciman can help, I think, or senators who
are familiar with provincial budgets, at least — the justice part of a
province's budget and the federal budget is very small in number compared to
the other ministries within cabinet, certainly. I think in Ontario it ran
between 3.5 and 3.8 per cent of total budget. The cost to fix the system is
doable. These are not health-care-size problems, but they are core problems
and they need to be addressed.
I am sure the provinces could give you a ready
funding number in terms of what it would take with respect to adding
resources to support these bills. It is interesting that, at least on the
public record, virtually all the provinces are acknowledging a linkage
between added criminal law that creates workload and the necessity of
supporting it. There is no issue here about whether or not more funding has
to come; the issue is who will pay for it, and is it a priority?
Senator Angus: As a major player in the
system, in your present job, you say the system is broken and it has to be
done; there has to be a high priority placed on it. If I understood you in
terms of your recommendation on how to approach it, you called for a
national justice summit to be set up and established, comprising all the
major players — jurisdiction-wise, leadership, provinces, feds and the whole
thing — to address it and come up with a new system. I think both witnesses
are saying you have to put the silo approach to the side in arriving at this
Mr. Chaffe: Absolutely.
The Chair: Is that your answer?
Mr. Chaffe: That is it.
The Chair: That is very good.
I will have to move to the next senators to
ensure that everyone has a turn on the first round.
Senator Angus: I cannot talk to Mr.
The Chair: No. We will have to move along
here. We will run out of time, unfortunately.
Senator Baker: I have one question for
Mr. Chaffe. Before that, I have a comment about the great work that William
Trudell has done.
I think it is only natural, Mr. Trudell, that
your amendment be incorporated within the Criminal Code, and there is a
place to put it. Right now, if someone appears before a judge on first
appearance for plea, and it is obvious that the person is seriously mentally
ill — in other words, it goes to capacity — then there is a procedure
outlined in the Criminal Code to take care of that. That person will be sent
to a mental institution, not to jail, first of all. Then there is NCR and so
However, in every hearing under sentencing, as
I recall, the Crown and the defence can get together and say, "We are going
to have a pre-sentence report." In those pre-sentence reports, medical
doctors and experts give opinions as to what is the proper punishment for
this particular person. It is there right now in the Criminal Code, just
awaiting your amendment at that point at which the experts give the
My question to Mr. Chaffe is this: The minister
talks about repeat offenders as far as the mandatory minimums are concerned.
Section 727 of the Criminal Code, as I recall, places an onus on you, as
prosecutor, that if a sentence may be affected by a previous conviction, you
must, as a prosecutor — in fact, it says the word "prosecutor" — notify the
accused prior to plea, which is very early in the process. Then, at
sentencing, at the end of the process, if they are convicted, you would have
to produce the record of the previous conviction.
Does that not now impose upon all prosecutors
the duty that a judge has, without the mandatory minimum; or do you see it
as an additional responsibility on the Crown, and is it possible that the
Crown, acting as a Minister of Justice, as the Martin report says, should be
acting as a Minister of Justice, that you would seek not to enter that
Mr. Chaffe: The judge would have to know
about it. I think we have an obligation not to hide previous record from the
court, obviously. The analogy I would use is with respect to the notice to
seek an increased penalty with respect to impaired driving cases.
Senator Baker: Section 253.
Mr. Chaffe: Right. Sometimes we elect not
to provide the notice. However, the judge, of course, is made aware of the
previous conviction that is outside, say, a five- or seven-year period. Does
it create a new obligation? The notification does. That is a bit of an
extra. Notifying the accused is something new, yes.
The Chair: If we could, I would appreciate
it if we would leave a bit of time at the end. When I realized our witnesses
were going to be leaving, Senator Jaffer was cut a bit short by that. I
would like to give her an opportunity for a question.
Senator Dagenais: My question is for
Mr. Chaffe. You know that any changes made involve a series of concerns. Of
course, the passing of Bill C-10 would result in a change. If a change is
made, for any reason, you will have to live with it, and I understand your
situation. Clearly, the same thing could happen in most work places where
changes are to be made. That being said, modernization of legislation and
the Criminal Code may not be feasible and may never be carried out.
I have looked at your brief. It emphasizes the
administrative impact of Bill C-10, but it does not focus very much on the
improvements lawmakers would make to enhance the safety of Canadians. If a
more severe bill were passed, it would perhaps have a deterrent effect.
There is a theory that it could reduce crime and perhaps even recidivity by
offenders. If that were the case, would your work burden not become more
acceptable? Have you looked into that?
Mr. Chaffe: Respectfully, senator, the
problem we have is that mandatory minimums will create more trials. The
restriction of conditional sentences for guilty plea purposes will restrict
those matters. They will go to trial. Those trials cannot take place unless
we exclude other matters before the court.
This is a capacity issue. If resources are not
added to operationalize these laws, we will never know if they will have the
deterrent impact that you think they may have, that many people think they
may have, and that many people think will not have an impact. We will never
know. We do not have the capacity to find out. That is the point I am trying
I certainly respect Parliament's prerogative to
increase or decrease penalties. This is a capacity issue. This is a
front-line issue, not an administrative issue, with the greatest of respect.
This impacts on the daily work of Crown attorneys in the front line and it
is a capacity issue. We will never know.
Senator Chaput: My question is for
Mr. Chaffe. Crown prosecutors work with police officers on the ground in the
fight against crime. The Minister of Justice and the Minister of Public
Safety have told us fairly often that they wanted to use this bill to better
equip those working in the field. Do you feel that this bill contains some
positive elements that could make your job easier or improve your
effectiveness in the fight against dangerous criminals?
Mr. Chaffe: I do not think I can comment on
good or badness with respect to the proposed amendments. What I will say is
that — and it will just be a repeat — if resources are not added to
operationalize them, we will not know if they are effective.
Senator Chaput: Thank you.
Senator Lang: When Mr. Chaffe enumerated
which provinces were supporting the legislation and which were not, Yukon is
supporting it and I do not believe I heard you mention them.
Mr. Chaffe: You did not and I neglected to
do so, senator; I am sorry.
Senator Lang: I just wanted to make that
Earlier in the day, I talked about a transfer
of $30 billion to the provinces. I want to correct the record on that. The
increase in support payments to the provinces were by 30 per cent, to $12.7
billion. In Budget 2010 — and this is what we are talking about here,
federal money to the provinces — the government transferred payments to the
provinces and territories of $54 billion, which was an increase of $2.4
billion. My understanding is that in most cases no strings are attached to
Would you recommend to us, Mr. Chaffe, with
those transfers that the federal government may make some stipulations that
so much money go into the judicial system?
Mr. Chaffe: I may have to retain counsel
for this question. That is way outside —
Mr. Trudell: I am advising Mr. Chaffe not
to answer the question.
Mr. Chaffe: That is way outside of my
capacity to answer. What we need is for the federal government and the
provincial government to get together. This is a core function of
government. There needs to be some agreement with respect to the
implementation of criminal laws. What we have right now is a situation where
some provinces will enforce, some will not. That is a serious rule of law
issue and it will have to be addressed across the table between federal and
Senator Lang: I would like to go further
with Senator Runciman's idea of maybe a royal commission or something of
that nature to look at the provincial-federal systems that are in place. It
bothers me — and I will be frank about this — that any time anyone from the
bar or from the Crown prosecutors comes here, they are always looking for
more money to solve our problems. I do not think it will necessarily do so.
It might help in part, but I think there are other things we could do in the
system maybe quicker and better than what we are doing now.
At any rate, I want to make that point to you,
namely that I think it is time that we all work collectively and see also
what we can do within our resources as opposed to just adding to them. That
is my conservative speech.
The Chair: I believe you will get unanimous
agreement at that end of the table. That is exactly what we heard earlier.
For the remainder of our time, I recognize
Senator Jaffer. I again want to apologize for having cut you off short a
Senator Jaffer: Thank you, chair.
There is one thing that has not been discussed,
especially with you as defence counsel, Mr. Trudell, and that is Legal Aid.
We have talked about all kinds of resources. I can talk about my own
province. The situation in B.C. for Legal Aid is just horrendous. From what
I understood when I used to practice, Legal Aid went first went to people
where there was a likelihood of them going to jail. They were the first
people who got Legal Aid. That does not leave much Legal Aid for anyone
When we are talking about resources, I feel
that there is this huge element. We have talked about marginalized people,
Aboriginal people and people with mental illness. What support will they get
on their side?
Mr. Trudell: There is no question that a
properly funded Legal Aid system promotes safer streets, safer communities
and a better criminal justice system. I do not think you will have any
disagreements on that from the police, to the Crowns, to the courts. It is
not just asking for money, it is funding a wonderful criminal justice
We go to developing countries to teach how the
system works. There is no question about it: the system has to be funded. If
it is funded properly, it works, it saves money and you end up with safer
Senator Jaffer: As defence counsel, what is
the state of our Legal Aid generally in the country?
Mr. Trudell: It varies from province to
province, obviously, but as a general statement there is no level playing
field. It is not there. We do the best. Some provinces do better than
others; judges sometimes help by appointing counsel. However, there is no
question about it that the playing field is not level. There are a lot of
defence counsel in this country who are making not very much money at all.
Senator Jaffer: That, of course, adds to
your burden if there is not counsel to help.
Mr. Chaffe: It does.
Mr. Trudell: It leads to unrepresented
accused, which is a very major problem. I am sorry.
Mr. Chaffe: The problem is increasing. We
are having more and more unrepresented accused in our courts because Legal
Aid is inadequate. It is part of core funding issue.
The Chair: Thank you, Senator Jaffer.
Gentlemen, thank you so much for your very
valuable contribution to the work we do. We much appreciate you taking the
time you have. We have run over considerably, but you can tell by the
questions that there is much interest in what you have had to say.
Colleagues, we will adjourn and reconvene our
hearing tomorrow morning at 10:30 in this room.
(The committee adjourned.)