Standing Senate Committee on Legal and Constitutional Affairs

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


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.

[English]

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 detailed study.

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 Committees."

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.

[Translation]

Senator Joyal: Serge Joyal, senator from Kennebec, Quebec.

[English]

Senator Baker: George Baker, Newfoundland and Labrador.

Senator Jaffer: Mobina Jaffer, from British Columbia.

[Translation]

Senator Chaput: Maria Chaput, Manitoba.

[English]

Senator Lang: Dan Lang, Yukon.

Senator Angus: David Angus, Quebec.

[Translation]

Senator Dagenais: Jean-Guy Dagenais, Quebec.

[English]

Senator Runciman: Bob Runciman, Ontario, Thousand Islands and Rideau Lakes.

[Translation]

Senator Boisvenu: Pierre-Hugues Boisvenu, Quebec.

[English]

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 Nova Scotia.

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 Aboriginal people.

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 helping victims.

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.

[Translation]

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 service.

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 opinions.

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 justice.

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 system.

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 term.

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.

[English]

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 system.

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 conditional sentence.

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 my notes.

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 reformation.

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 people.

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 comments.

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 one in.

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 sentencing.

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 8, reads:

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 needed.

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 of supervision.

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 this issue?

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 to jail.

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 committed.

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 particular offence.

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 work.

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 sentencing provisions.

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 bargaining?

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.

[Translation]

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 another chance.

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 too harsh.

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 harsher?

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.

[English]

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 that.

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 through it.

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, yes.

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 question.

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 part.

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 that.

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.

[Translation]

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.

[English]

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.

[Translation]

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.

[English]

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.

[Translation]

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.

[English]

The Chair: Senator Joyal, we have to move to the next questioner and we can put you down for the second round, if we have time.

[Translation]

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.

[English]

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.

[Translation]

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 effect?

[English]

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.

[Translation]

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 society.

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.

[English]

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 system.

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 low.

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 children's interests.

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, though.

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 well.

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 look at.

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.

[Translation]

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.

[English]

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 demands?

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 responsibilities?

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 supplementary?

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.

[Translation]

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 clearly states:

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 that?

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 going.

Mr. Trahan: Me too.

[English]

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 communities.

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 right now.

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 observation.

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, President.

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 Criminal Code.

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 provinces?

Mr. Chaffe: Alberta, Manitoba and New Brunswick.

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, Mr. Chaffe.

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, basically?

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 triage process.

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 courts.

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 humanity.

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 kind.

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 appreciated.

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 following:

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 funding issue.

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 the courts.

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 more.

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 disorder.

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 those issues.

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 there.

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 serious cases.

Senator Jaffer: I am not talking about those.

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 policy manuals.

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 solution. Correct?

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. Trudell?

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 on.

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 pre-sentence report.

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 previous record?

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.

[Translation]

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?

[English]

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 to make.

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.

[Translation]

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?

[English]

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 point.

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 that.

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 provincial counterparts.

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 while ago.

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 else.

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 system.

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 communities.

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.)