Debates of the Senate (Hansard)

1st Session, 39th Parliament,
Volume 143, Issue 75

Tuesday, February 27, 2007
The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Tkachuk, seconded by the Honourable Senator Eyton, for the second reading of Bill C-9, to amend the Criminal Code (conditional sentence of imprisonment).

Hon. Mobina S.B. Jaffer: I am pleased to rise to speak to Bill C-9, and to respond to the remarks our colleague Senator Tkachuk made last week.

There is mutual respect between the two of us, though I think the respect he has for me might have less to do with the fact that I am a lawyer than it does with the fact that I am the daughter of a farmer.

Senator Tkachuk called for us to proceed in a spirit of bipartisan cooperation, and I think that is appropriate. In fact, bipartisan cooperation in the other place made this bill what it is today. The bill is different from the one introduced in May of 2006. Senator Tkachuk also gave a good summary of why he believes conditional sentences were added to the Criminal Code in the first place. I want to revisit some of the things he said, because it is important that we understand the basic principles behind criminal sentencing.

As honourable senators know, conditional sentencing was introduced in 1994 in Bill C-41. That bill added new sections to the Criminal Code and, for the first time, defined the purposes and objectives of sentencing. This definition gave the courts direction from Parliament when imposing a sentence. Furthermore, judges were required to give reasons for sentencing in all cases. This requirement was meant to increase public accessibility to the law concerning sentencing, to make sentencing more understandable and predictable. The purposes of sentencing set out in section 718 of the Criminal Code is as follows:

(a) To denounce unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

(e) to provide something for victims and the communities;

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

At the time Bill C-41 was introduced, Canada had an extremely high rate of incarceration compared to most other industrialized countries. This incarceration was expensive, and studies showed that it was not effective. Sometimes incarceration even had the effect of reducing the chance that a first-time or a minor offender could be rehabilitated and returned to society as a law-abiding citizen.

The Department of Justice during Mr. Mulroney’s government was among those saying that Canada’s overreliance on incarceration was counterproductive. In the 1990s, a discussion paper set a framework for sentencing, corrections, conditional release and direction for reform. The report said we instinctively look to long sentences to punish offenders, yet the evidence shows that long periods served in prison increase the chance that the offender will offend again.

In the end, public security is diminished rather than increased if we incarcerate and then return offenders to the streets when their sentence expires, unreformed and unsupervised.

This brings us to the topic we are concerned about in Bill C-9, conditional sentencing. Bill C-41 gave the courts the flexibility to allow the conditional sentence for any offence that was not subject a minimum prison term, where the court imposed a sentence of less than two years’ jail time.

These sentences must comply with the principles of sentencing I outlined earlier, and the court must be convinced that there is no risk to public safety.

As I mentioned before, judges must give detailed reasons for sentences handed down. I would like to take a moment to lay out exactly what a conditional sentence is. According to section 742.3(1) of the Criminal Code, a conditional sentence requires that the offender:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court;

(c) report to a supervisor within two working days, or such longer period as the court directs, after the making of a conditional sentence order, and thereafter, when required by the supervisor and in a manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

In addition, a court that imposes a conditional sentence may require an offender to:

(a) abstain from the consumption of alcohol or other intoxicating substances, or the consumption of drugs except in accordance with a medical prescription;

(b) abstain from owning, possessing, or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding 18 months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable. . . for securing the good conduct of the offender and preventing a repetition by the offender of the same offence or the commission of other offences.

Honourable senators, there is a common misconception that conditional sentences and prison sentences are the same, except that the person serving a conditional sentence gets to live in the comfort of his or her own home and gets to move about the community, subject to modest restrictions. This is not true. Conditional sentences must be served full term; there is no remission. A breach of conditions imposed by the judge, for which there is a very low threshold, results in incarceration to the end of the term. In those respects, conditional sentences can be much harsher than incarceration. The range of conditions that can be imposed, including complete house arrest, can effectively result in a very serious reduction of liberty.

For judges, it is mandatory, not optional, to consider the conditional sentence provisions of the code where the threshold conditions are met. This is Parliament’s explicit direction; not an example of judicial softness on crime.

Honourable senators, this gives judges discretion in laying down a sentence that keeps in mind the need to maintain public safety while evaluating the offender and the case on an individual basis. Catch-all rules, like those proposed in the original version of Bill C-9, severely limit that discretion.

The Canadian Bar Association noted in their brief to the committee of the other place that this could eliminate an important alternative to incarceration in cases where it may well be appropriate. They “trust in judges’ extensive legal and practical experience and their independent role in the justice system.”

They go on to say that:

The judge at trial has the opportunity to observe the accused, learn of the accused’s history and current circumstances, hear all the facts of the particular case, and become aware of the prevailing conditions in the local community.

It is my observation that the present government believes that judges have overstretched this discretion, and that they have failed to adequately punish violent crime. That is why they have changed the judicial appointment process with the stated intention of appointing more judges who share their ideology. That is also why they introduced Bill C-9 in its original form. I agree with the Canadian Bar Association that this bill, had it passed, would have severely undermined judicial independence and discretion and led to a dramatic increase in the rate of incarceration.

Honourable senators, the bill before us today strikes a balance, clarifying Parliament’s will on sentencing for the courts without reducing our judges to the level of machines, unable to weigh the circumstances and context of a given case. I want to continue by further underlining the principle that I believe is really at the heart of conditional sentencing.

Incarceration is not always the answer. We could just throw everyone who offends into jail, but in most cases we cannot throw away the key. Most prisoners or convicted people sooner or later are released from prison and they must learn to live in our society. It can be beneficial to both the individual in question and society as a whole if the individual learns new skills and lives within society.

Our colleague has given us a number of cases in which he believes conditional sentencing has failed. Senator Murray made note of the fact that sometimes these cases, when seen in their proper context, can seem to be more justified than they originally appeared. I agree with him because, in my career as a lawyer, I have seen conditional sentencing work for everyone involved.

I will not go into the specifics or names of any case, but I want to add some examples of my own. A few years ago in British Columbia, a man sexually assaulted his young son. Rather than being sent to jail, he was given a conditional sentence. It was an awful crime, perpetrated by a father who had abused his position of trust and authority. If we had left this case here, it would probably contribute to the loss of public confidence in the sanction and administration of justice that the honourable senator spoke about; but consider some of the circumstances that led to this decision. First, the family was dependent on this man for child support payments and alimony. Unless he continued working, they would lose this source of income and likely become completely dependent on our welfare system. What is more, in prison there would have been no way to compel this very sick individual to seek counselling for his problems.

The judge in the case saw that the man was resistant to seeking treatment. Had he been incarcerated, he might have been released without condition after two years or less without ever having received any treatment, and with few or no conditions. What is more, under the terms of his conditional sentence, he was confined to his home between the hours of 6 p.m. and 7 a.m., and allowed to leave his home outside of those hours only for work, counselling and grocery shopping. He was required to continue paying child support and spousal benefits, and to attend counselling sessions a minimum of once per week — more if his counsellor felt it was necessary.

It was not an easy sentence for this man; he might have even preferred prison. However, it was what was best for his family, best for society and, ultimately, best for him as well. Under the version of Bill C-9 that was introduced last May, this option would not have been available.

Another case involved a young man from Afghanistan who was convicted of assault. Once again, the court chose to impose a conditional sentence. Once again, it might be taken as an example of failure on the part of the court if we do not look at the individual factors of this case. This young man had been severely affected by the violence in Afghanistan. In fact, he had, at one point, been imprisoned against his will in a small room in isolation. The judge felt that imprisonment might only serve to further traumatize and reinforce the problems that had contributed to the original offence. Society would not be served by a sentence of incarceration.

The court ordered that he find work, reporting regularly to his supervisor on his employment; that he perform 40 hours of community service per month for as long as he did not have a job; that he undergo regular counselling; and that he remain indoors from 7 p.m. to 7 a.m.

Honourable senators, these are examples of conditional sentences that would be impossible under the version of Bill C-9 that was tabled in the House of Commons last May. Even under what my colleague proposed in his remarks, it is unlikely that there would have been any alternative to incarceration in these cases.

I know and I respect Senator Tkachuk’s wishes to compromise; and I know that in committee we will be looking at this bill very thoroughly, and we will then come back and put the recommendations of the committee to this chamber.


Honourable senators, I want to address another aspect of Bill C-9 — the impact it will have on the administration of justice. In particular, I want to talk about the impact that this legislation will have on our legal aid system. This issue is of great importance to me. It is important in my province of British Columbia, in my community and in communities around this country. This issue affects the most vulnerable Canadians. If I may quote once again from the Canadian Bar Association’s submission to the committee in the other place:

In its current form, the proposal will undoubtedly lead to more trials as a result of fewer guilty pleas. That factor alone will eliminate any perceived justice efficiencies, and certainly increase demands for legal aid funding. In addition to the huge costs of incarcerating people, particularly in circumstances where the offender and the offence committed do not represent a danger to the community, there will be enormous social costs. . . . Further, the lack of judicial discretion to achieve a just result in a particular case will have a disproportionate impact on populations already over-represented in the justice system, notably the economically disadvantaged, Aboriginal people, members of visible minorities and the mentally ill.

The program threatens individuals who depend on the legal aid system. Single mothers seeking unpaid child support, women trying to break away from abusive relationships and divorced fathers seeking visitation rates to their children will be hurt by this legislation. As legal aid funding is drawn toward the criminal side, legal aid for civil cases will invariably suffer. Both types of legal aid are already stretched to the limit.

Honourable senators, I respectfully state that it is telling that the first budget of this government provided additional money for prisons to accommodate the influx as we turn back to an overreliance on incarceration. However, despite unanimous calls from provincial premiers and warnings from the legal aid community in my province and elsewhere that this legislation would break the back of legal aid in this country, the government has not moved to restore or stabilize legal aid money they send to the provinces to administer the system.

Despite positive changes to the legislation proposed by the other place in this bill that is before us today, I still believe that the bill deepens the problem that already exists. I continue to urge the government to restore and stabilize legal aid funding. There will be a budget in less than one month, and I sincerely hope that money is set aside for legal aid.

Honourable senators, I look forward to the opportunity to examine this proposed legislation in detail in committee, to address the issues that my honourable friend and I have raised, and to bring those recommendations to this honourable chamber.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

On motion of Senator Tkachuk, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.