Bill C-9 (Historical)

An Act to amend the Criminal Code (conditional sentence of imprisonment)

This enactment amends section 742.1 of the Criminal Code to provide that a person convicted of a serious personal injury offence as defined in section 752 of that Act, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence.

Criminal Code

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, I rise today to speak to Bill C-9, a bill which has been referred to as the amendment to conditional sentencing. As my fellow members of Parliament are aware, the bill amends section 742.1 of the Criminal Code to provide that a person convicted of an offence prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more, is not eligible for a conditional sentence.

As I am sure my fellow members are also aware, conditional sentencing introduced in September 1996 allows for sentences of imprisonment to be served in the community rather than in a correctional facility. This gives judges some freedom to take into account individual circumstances and allow for sentencing that fits with the crime committed.

Judges can take into account such things as the gravity of the offence and the degree of responsibility of the offender. For offences that are less serious, judges can choose conditional sentencing. Our jails are seriously overcrowded and underfunded. In 1996 conditional sentencing was seen as a way to ease the burden.

By taking away conditional sentencing, we are second-guessing our judges and limiting their ability to address individual circumstances. Another positive function of conditional sentencing is the ability for judges to provide opportunities for those convicted to acknowledge their crime and even make reparation.

The intention of this type of sentencing was to divert more minor offences out of the prison system. However, I certainly recognize that there is a real concern that conditional sentencing is being used for serious crime such as sexual assault, violent crime and driving offences involving death or serious bodily harm. These are the crimes that merit this amendment. However, I am also very concerned that this amendment to the Criminal Code can do more harm than good. We do not want to throw the baby out with the bathwater.

The Conservative government will provide money for federal jails, but this law as is will mean most of the increased jail terms will be spent in provincial facilities. The government should not be downloading the effects of its crime agenda to the provinces without support to hire more local police, expand youth initiatives, and increase and improve provincial jail capacity.

In the United Nations Vienna Declaration on Crime and Justice it states that:

--adequate prevention and rehabilitation programmes are fundamental to an effective crime control strategy, and that such programmes should take into account social and economic factors which may make people more vulnerable to, and likely to engage in criminal behaviour.

The declaration also stresses that “a fair, responsible, ethical and efficient criminal justice system is an important factor in the promotion of economic and social development and of human security”. Eliminating conditional sentencing will not address these concerns made by the UN declaration, but it will increase the population in Canada's jails and will do nothing to address the sources of crime.

One of the key issues that the UN declaration points to is poverty. It calls for countries “to create a conducive environment for the fight against organized crime, promoting growth and sustainable development and eradicating poverty and unemployment”.

What we really need to do to prevent crime is to go to the source. More often than not, that source is poverty. Crime is often a signal that something is terribly wrong with our social safety net, that people are falling through the cracks. Filling up our jails is like putting a band-aid on a broken arm. It looks like we are doing something, but we are not addressing the real problem.

We have seen the Conservative tough on crime attitude before. In Ontario, Mike Harris instituted privately run boot camps in order to get tough on youth crime. These were found to do very little to prevent crime or rehabilitate youth. The facilities charged high rates to taxpayers and did nothing. In combination with these initiatives, the Harris government cut social assistance rates, clawed back the child tax benefit, cancelled funding for second stage housing, cancelled affordable housing projects, reduced funding for women's shelters, and closed down youth initiatives and after school programs.

One particular women's shelter in my riding was forced to cancel a program that offered help to children who were traumatized by domestic violence.

All of the Harris cuts were directed at low income families. It is my greatest fear that we are heading down the same road with the federal Conservatives.

The tough on crime attitude is apparent in Bill C-9 and Bill C-10. Every day I have someone new come to my office asking if funding for one of the many social programs for women and youth will be cut after March 2007.

I am sure some of my fellow members of Parliament are thinking that the link between crime and poverty is not as critical as I suggest. Quite simply, it is. To make my case I want to address the situation of incarcerated women.

Women in the Canadian penitentiary system have the highest rate of HIV and mental illness of any group of women in Canada. Surely a prison is not the institution to respond to someone who is ill.

Forty per cent of incarcerated women are illiterate and 80% have been physically or sexually abused. They were victims long before they resorted to crime. Two-thirds of these women have children. Many had unstable housing at the time of incarceration and 80% were unemployed at the time they were sentenced to jail.

It is obvious that women who are incarcerated are victims of violence and poverty themselves. If we take the brave step to eradicate poverty perhaps we can eliminate much of the need for incarceration.

The Conservative plan to eliminate conditional sentencing will have a significant impact on female inmates in particular. As I previously noted, two-thirds of the women currently incarcerated have children. If conditional sentences are continued for non-violent crimes, these women will have an opportunity to put their lives back on track and may be able to have a relationship with their children. A 10 year jail term would kill any chance of that.

I am very concerned that the Conservatives have gone too far with the bill. Where are the provisions for the prevention of crime?

I referred earlier to the actions of Mike Harris in Ontario. The punitive approach he took to the needs of vulnerable communities has consequences. We live with those consequences now. If a human being is beaten down by the loss of hope and opportunity, eventually that human being will strike back. Have we learned nothing from the Harris legacy?

We have seen an increase in poverty and despair. Last week the United Nations social, economic and cultural council issued a scathing report condemning Canada for being inactive in key areas of social development. We have failed Canadians when it comes to safe, affordable child care, affordable housing and care for abused women. How on earth would the bill change that neglect?

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I listened with interest to the member's discussion on the bill and the comments she made with respect to the Harris government. Being a member from Ontario I am well aware of the Harris government policies and of what happened in the province.

I also well remember the NDP government under the leadership of Bob Rae and the great consternation and problems that government caused the province.

However, getting back to the legislation that we are supposed to be dealing with today, does the member not believe that we should be fighting for safer streets, safer neighbourhoods and safer lives for our women and children?

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, absolutely, we should be fighting for safer streets and safer situations for women and children. However, with such punitive measures as the ones we saw from the Harris government, we will never be able to achieve those.

I find it very interesting, in talking about poverty, that it does relate to women. We all know that women earn two-thirds of what men earn and that many of them are in situations where they cannot look after their families and children. Just yesterday the committee on the status of women had a vote on pay equity, something that is vital to the future of women so they can provide for their families, pull their children out of poverty and not have to face violence and despair, but the Conservative members of the committee voted against tabling a bill on pay equity.

They speak out of one side of the mouth about safety for women and children and then vote against women in a committee that is supposed to stand up for the rights of women. It is despicable.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I am sure the House was greatly interested in and moved by the comments made by the previous speaker, in particular as it relates to those statistics that apply to women.

As the member was speaking I was reminded of the closing down of community based facilities in an attempt to replace prison-like settings with a more moral, humane and activist kind of setting as it relates to women who find themselves in the category subscribed by the member and in the conditions she described.

In terms of the conditional sentencing provisions, would the member like to see more flexibility provided through the courts for women who could receive the kind of support that is required through the probation and parole systems but would find them in more of a community setting where there are far more supports that would be relevant to the kinds of needs that they might have?

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Mr. Speaker, that points back to my remarks in terms of the situations that keep women in prisons, such as illiteracy, sexual and physical abuse and unemployment. Those are the things that make women's lives very difficult and that clearly underscore their victimization.

We need to improve our literacy programs. We need to ensure that women who have been sexually abused receive the care, the support and the counselling they need. We also need to ensure they have the training to seek employment and look after their children.

I would come back to not just employment to provide for their children but equal employment that includes equal pay for equal work.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I am proud to speak to this important bill, Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment).

Since being introduced in September 1996, conditional sentencing has allowed for sentences of imprisonment to be served in the community rather than through incarceration. It has served as an effective means of keeping less serious offenders out of jail and yet it is more than probation which focuses on rehabilitation and reintegration by adding a punitive measure.

It was in 1996 when conditional sentencing was introduced and the primary goal of conditional sentencing was to provide an alternative to incarceration, an alternative sentencing mechanism to the courts, and it also provided an opportunity to further incorporate restorative justice concepts into the sentencing process.

My Liberal colleagues and I set the safety and security of the Canadian public at a high priority and wish to pass appropriate legislation that reflects the realities and complexities of Canada's justice system and its citizens.

In support of this priority, in October 2005 the justice minister of the day, the hon. member for Mount Royal, introduced Bill C-70 which had received first reading but which died on the order paper. It focused largely on preventing those who were convicted of crimes that caused serious personal injury from receiving conditional sentences.

Bill C-70 added the following condition:

The court shall not order that an offender serve his or her sentence in the community if the offender has been convicted of any of the following offences, unless the court is satisfied that it is in the interests of justice to do so because of exceptional circumstances: (a) a serious personal injury offence as defined in section 752; (b) a terrorism offence; (c) a criminal organization offence; and (d) an offence in respect of which, on the basis of the nature and circumstances of the offence, the expression of society's denunciation should take precedence over any other sentencing objectives.

The bill also would have required the court to include in the record a statement of the exceptional circumstances that it considered if it chose to grant a conditional sentence.

Bill C-70 would therefore have been successful in addressing the practical weaknesses of conditional sentences without compromising the effectiveness of the corrections and justice systems as a whole.

On the other hand, the current government's proposed Bill C-9 wishes to amend the Criminal Code of Canada by mandating that a conditional sentence will no longer be an option for anyone convicted of an offence prosecuted by indictment that carries a maximum prison sentence of 10 years or more. Removing the application of conditional sentences in this regard could result in an uneven application of justice and it adds nearly 100 offences under the Criminal Code in which sentencing would no longer apply. It would result in various damaging implications throughout our country.

I also would like to mention that we must consider the disproportionate number of aboriginal people who are incarcerated. One of the most evident consequences of the bill would be a further influx of aboriginal Canadians into the prison system. This influx arrives at a time when the government ought to be taking appropriate measures to reduce the over-representation in the penal system of aboriginal peoples.

While aboriginal groups make up less than 5% of the population in Canada, as of March 31, 2004 they represent approximately 20% of all federally incarcerated prisoners in Canada. First nations over-representation in the criminal justice system has steadily increased over the past 10 years. While the federally incarcerated population in Canada steadily declined by 12.5% from 1996 to 2004, the number of first nations people in federal institutions has increased by 21.7% during this same period. To break these figures down further, the number of incarcerated aboriginal women has also steadily increased 74.2% over the last seven years.

There is no other group in the country that will be moved out of the community and into the prisons more quickly than aboriginal Canadians. Throwing people in jail is apparently easier to the government than addressing root causes or addressing the concept of restorative justice. The Conservative government should prepare itself for a serious reality check because its solution to such challenges will only perpetuate matters further.

There is a strong correlation between socio-economic disadvantages and involvement with the criminal justice system. This requires serious attention to ameliorate the vicious cycle. Restorative justice has played a role in harnessing the rate of overrepresentation of first nations peoples in the criminal justice system and has been an integral tool in healing strategies.

In contrast with the Conservatives' Bill C-9, restorative justice acts as a comprehensive system of justice with effective results. Ultimately, at the end of the day Canada's most vulnerable group will experience yet another blow by the government, which unfortunately, seems to be very common these days.

Everyone in the House I am sure will agree that we all want safer communities for our friends and families. This consensus can be met through effective and fair legislation.

I urge the government and, indeed, all members of the House to support a justice system in Canada that takes into consideration the true complexities of conditional sentencing and develop legislation that reflects this ideal rather than the short-sighted, irresponsible approach that the Conservative government is determined to impose.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I would like to share with the hon. member my concern about the effect that this law is going to have on aboriginal people. We see how the courts have played out over the last 100 years. We have seen the loss of hope on aboriginal youth who were incarcerated, treated as criminals, taken to the edge of some cities and left to freeze to death. At times we have had such a breakdown in our obligation to provide our aboriginal youth with a sense of hope and vision for the future.

I have seen in the communities in my region the work that has taken place with the elders, NNADAP and other workers to give aboriginal youth a sense that even if they fall through the cracks, there will be a community sense to rebuild, and to rebuild not just them but the community that they have harmed. That happens through the sentencing circles and some of the programs that we have seen in terms of first nations spirituality and giving people a sense of their culture.

I am very concerned that this bill goes right across the board and takes away the ability of communities, the provinces, and our courts to do what is appropriate in the case of our aboriginal youth. I would like to ask the member for her thoughts on this.

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, I would like to mention that one of the most frustrating and troubling announcements by the Conservative government in terms of its approach to justice is the amount of money that it is prepared to spend on new jails and prisons. The figure of $250 million is startling when, as the hon. member mentioned, the system of incarceration has not been successful in addressing the root causes. In fact, creating more jails and prisons is certainly not part of the answer.

I appreciate the member's question in terms of aboriginal communities, first nations, Métis and Inuit groups that have done incredible amounts of work in terms of restorative justice. They have certainly been subject to a colonial system of 150 years which has had devastating impacts.

The last Liberal government had taken great strides to work in cooperation with aboriginal groups toward addressing these very issues. The root causes have to be addressed and, in fact, as the member indicated, the sentencing circles and the community healing strategies are where I believe the funds should be focused. I believe we will never curb the rate of crime and the aboriginal community will suffer the impacts the most.

There are a lot of community based strategies that need to be examined, monitored, evaluated and promoted because they have had an enormous amount of success in addressing root issues and community dynamics.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I would like to thank my hon. colleague for her analysis of Bill C-9. She mentioned that conditional sentencing has conditions set before a judge who can lay down the sentence. It is a preventative tool and prevention is very important. The previous Liberal government had implemented a youth employment strategy for preventative purposes dealing with gang violence, which has been eliminated by the Conservative government. Could the member elaborate how the conditional sentencing tool has been used in the aboriginal communities and how effective has it been?

[Tina Keeper, Liberal, Churchill, MB]

Mr. Speaker, one of the important elements of the conditional sentencing is that it is not focused principally on rehabilitation or reintegration of the offender. Where those rehabilitation measures are in place, they are not an option for the offender. They are part of the conditional sentence. I think that is a really important factor in terms of conditional sentences.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I am pleased to rise and speak about Bill C-9, which seeks to amend the Criminal Code. To describe the purpose of the bill, I will read the summary:

This enactment amends section 742.1 of the Criminal Code to provide that a person convicted of an offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence.

To help the people who are watching understand, I should mention that the concept of a conditional sentence is quite simple. When an individual receives a conditional sentence, it means that he serves his sentence in the community. He remains free as long as he abides by the mandatory, discretionary conditions the court has imposed.

This is the system we have at present. Our society has developed a certain degree of judicial autonomy. Based on case law, past events and the decisions handed down throughout the history of the courts, a certain procedure has been established whereby judges can analyze each case on its own merits and choose the most appropriate sentence. That is the society we have. In my opinion, the vast majority of Canadians were satisfied with this until today.

With the introduction of Bill C-9 by the Conservative government, we are seeing another opinion. Obviously, in any society, there are always people who are dissatisfied. The Conservatives are exhibiting a republican streak that would have them take away more and more power from the judiciary. They want to reduce judges' authority, simply because they themselves want to dictate the punishment in the Criminal Code. That way, if you commit a crime, the sentence is set, and all the courts do is determine whether or not you are guilty.

This is dangerous. This perception, this concept of the judicial system, this republican conservatism is what we are seeing in the United States. When a society functions in this way, as American society does, then we have to look at whether this helps reduce the number of crimes. In the case of the Americans, experts agree that crime is not on the decline in the United States, it is on the rise. This is understandable. It is simply because sentences are increasingly strict. Offenders figure that they might as well commit enough crimes to get enough money to hire lawyers to get them off.

There have been some highly-publicized court cases in the United States. I do not want to name names. It is because of this that we have this situation. It is because of this that an entire right wing is emerging conditions de surveillance in our society and this republican conservatism. We associate images with certain individuals. If the trial of an individual found guilty has been highly publicized, everyone watching from their living rooms has played a part in determining the sentence.

Establishing the framework for a society is much more complex than that. We must stop enacting legislation and guiding our society based on the cases of a few individuals hyped by the media. This is why the Americans have become so conservative, have shifted to the republican right and have increased sentences. We end up by thinking that every time someone does something, a sentence should be imposed automatically. That cannot be done.

In our society, we are still presumed innocent until proven guilty by the state. That is the hard reality. We must abide by this, that is the way it is and I believe that is a good thing. That is what our ancestors chose to do. It is thus that our parents, grandparents and great grandparents decided to shape our society. We are innocent until proven otherwise and we have given the judiciary the responsibility of determining the sentence.

For this reason the Criminal Code contains the possibility of imposing conditional sentences for certain offences—that is sentences served in the community—accompanied by very serious supervisory conditions.

Since 2000, we have seen a certain shift, thanks to an increase in right-wing, republican conservatism. Courts are imposing much more severe conditions on people under supervised or conditional release. This is probably a good thing; we are following this trend and the courts are adapting.

Yet this is not enough for the right-wing republican conservatives. They believe that minimum mandatory sentences must be imposed immediately. In the United States, this has had negative results. Knowing that they will receive a lengthy sentence, certain people commit a crime and simply ensure that they have enough money to pay lawyers to get them acquitted. This is what the U.S. is up against. Sentences have not been reduced—quite the contrary—and there are more and more criminals. However, certain law offices are making plenty of money simply to get people acquitted who might otherwise have pleaded guilty if they were likely to receive a conditional sentence, supervised by the community. Perhaps they would have decided not to fight the system.

It is time to stop thinking that judges wake up in the morning, and if they get up on the right side of the bed, decide that everyone who appears before them that day will serve their sentences in the community. That is not how it works. Yet the right-wing republican conservatives seems to be saying that the judiciary's 100 years of history since Confederation and everything decided by the courts are no longer valid. Today, these judges are no longer good enough. In order to be good enough, they would have to be right-wing republican conservatives. This is not what our society wants. This is not what our ancestors wanted. In our society, the accused is innocent until proven guilty. Sentences are determined based on responsibility.

I would like to remind the House of the criteria that exist. Before imposing a conditional sentence, judges must consider four elements.

First, the offender must be convicted of an offence with no minimum sentence. When the Criminal Code specifies a minimum sentence, the judge imposes it. It seems that, more and more, right-wing republican conservatives want to impose minimum sentences for every section of the Criminal Code.

Second, the individual must be given a sentence of less than two years. Even when the individual is charged with an offence which could carry a sentence of ten years or more, if they are given a sentence of less than two years, a conditional sentence to be served in the community may be considered.

Third, the conditional sentence must not pose a danger to the community. The judges analyze, call witnesses and people who may influence the person's behaviour, and experts analyze the behaviour. They then decide whether or not the individual will be released into society.

Fourth, the judge must be convinced that a conditional sentence is in keeping with the general principles of proportionality of the sentence. Jurisprudence has established a certain proportionality, but it is the judge who decides. In our society, we must take this into account. We must stop dictating. We must accept that our judiciary is comprised of competent individuals who have been appointed and who have the requisite training to impose sentences. This is how the courts have operated since Canada came into being.

Bill C-9 will add a new criterion: the offence committed must not be punishable by a maximum term of imprisonment of 10 years or more. It does not refer to the sentence handed down to an individual, it refers to an offence for which the term of imprisonment may be ten years or more. They are not necessarily very serious offences. For example, theft over $5,000—such as the theft of a car—is punishable by a sentence of 10 years or more, and so is obtaining credit by fraud. This type of crime is committed often and it should be punished. However, if it is a person's first offence the judge will take that into consideration. Theft from mail also may carry a term of imprisonment of 10 years or more. Offences such as providing a false prospectus, using a false passport, fabricating evidence, are all punishable by a term of imprisonment of 10 years or more. Under Bill C-9, even if the crimes are committed only once by an individual, a conditional sentence served in the community would no longer be a possibility.

To conclude, the Bloc Québécois will vote against this bill.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, once again, I listened very carefully, as have other members of the House, to the comments made by the member.

I am greatly impressed with the comparisons with the American justice system and the trends, and what he described as a Conservative-Republican approach to the application of justice. He noted that the number of repeat offenders has gone up in the United as a result of the approach it takes as opposed to the trend of repeat offenders here. I hope I am not being too loose in the application, but I would attribute it to the fact that we have a conditional sentencing regime that has allowed for a great deal of discretion on the part of the courts.

The bill suggests that over 100 offences will now come under the Criminal Code, taking away the capacity for conditional sentencing.

Does the member think this will follow the trend that has occurred in the United States, which is a very serious concern? In fact, the penitentiaries have become the incubators for further offences that are of a very serious nature and repeat offenders find themselves back in the criminal justice system. Does he think this could become a possible trend here as a result of the legislation?

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, my hon. colleague is absolutely right. Such is not the choice our society made. Our society has chosen to trust the judiciary, which has to consider each case individually.

The problem with wanting to punish and imprison at all cost is that we risk putting criminals who could be rehabilitated behind bars, where they will automatically be associating with more hardened criminals, who in turn will gladly teach them how to commit crimes without landing themselves in jail for it. That is the whole concept we are discussing.

My hon. colleague is absolutely right: we are talking about social trends. One trend in the United States is right-wing Republican conservatism. It is working its way across the border, and I believe that we should resist that trend. Let us show that our society is a more fair and equitable one and that we are better able to facilitate social rehabilitation than Americans are as a society.

I repeat, we must resist this onslaught by the Conservative and Republican right. I think this should be done by voting against Bill C-9.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, there has been some sentiment that judges exercise their discretion around conditional sentences improperly, that their inclination is to be too lenient, that somehow that leniency is built into the system and that it is an automatic inclination of some judges.

Could he comment both on the use of discretion by judges and if he thinks that there is a built in tendency in the system to somehow take serious and violent crimes leniently when it comes to sentencing?

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, I hope that all members understand that it is absolutely not the case. Judges must respect some criteria. I did enumerate them earlier and I will spare you a repeat of the list.

There is no automatic sentencing. As I said, it is not because a judge wakes up in a good mood one morning that he or she will be lenient and give out conditional sentences. That is not the way things work. Sentences are determined by such criteria as the type of crime and, of course, the individual who committed it.

I suspect that without the right-wing republican conservative movement that we have observed since the beginning of the 21st century, we would still be in a society that wants to give a second chance to people who really deserve it. In fact, that is what a judge does. He or she takes the criteria into consideration and decides if the person found guilty will be given a conditional sentence that will allow that person to be returned to society under supervision. We notice that that supervision has become more rigorous since the beginning of this century. Judges have followed current events and noticed the right wing tendency that exists in Canada. They then realized that supervision had to be enhanced and that has been done.