As I’m sure most readers are aware, Bill C-10 was finally passed in the House of Commons on Monday (March 12th). This is the most significant and costly bit of legislation that has been passed in over 20 years, and represents a fundamental shift in our collective approach to crime – in my opinion, away from a rehabilitation approach to one of retribution. The removal of pardons (except where it is granted explicitly by the Cabinet – making it essentially impossible to obtain for the normal citizen), is particularly apt.
However, in response to the passing of the Bill, Jack Harris (NDP: St. John’s East) made an excellent and pertinent speech that raises most of the troubling aspects of Bill C-10 in its content, discussions, and implementation. I don’t think I can top his incisive analysis, so I am pasting some of the key passages of his speech below, roughly organized by topic:
On Time Allocation, Disrespect for Parliamentary Process, and Disrespect for Evidence
Madam Speaker, the minister talked about accepting amendments, yet some 60 amendments from the New Democratic Party in committee, and amendments from the Liberals and amendments in the House were rejected. In fact, all opposition amendments were turned down by the government. Whatever amendments may have been accepted in previous Parliaments in committee when there was co-operation were stripped out of the bills that were brought forward. The government has accepted no amendments from the opposition.
How is it that the minister can claim that this is the best legislation possible and that the government actually listened to the experts and the amendments that flowed from hearing them?…
It is interesting that when we talk about the process involved with this particular piece of legislation and what the Minister of Justice just said concerning the acceptance of the amendments, this particular aspect is quite instructive as to the approach taken by the government with this bill. It has put together, as the minister said, nine bills. Four had been previously introduced by the Minister of Justice himself and four in a previous Parliament when there were other members of the House, not the approximately hundred new members here today. Four were introduced by the Minister of Public Safety and one by the Minister of Citizenship and Immigration.
This particular bill went to committee. The member for Mount Royal, who participated quite actively in this aspect of the bill in committee, had proposed a number of well-thought-out amendments. We had heard experts testify before the committee, which I will go into a little bit later. That member has a degree of expertise in legal matters, having been a law professor for some 30 years at McGill University and being a recognized expert in international humanitarian law. He brought forward a number of thoughtful amendments that in his submission to the committee were intended to improve the bill. To suggest that they got short shrift is an understatement. We spent two hours of a committee meeting discussing those amendments, and none were accepted. They were all voted down, apparently under instructions from somewhere outside the committee, and we got nowhere.
The next day we came back, after having discussed eight clauses of the bill. The bill was quite extensive, having some 208 clauses. Eight of them had been discussed at the first meeting in a sincere attempt to improve the bill, but were not listened to. We came back the next day at 8:45 for a two-hour meeting to continue discussing some 200 further clauses in the bill, which included some nine different pieces of legislation, as the minister just said, and we faced a motion that the matter be dealt with that day. There was no warning, no consultation, no discussion or consideration….As I had occasion to say in joining the debate on whether we would deal with the legislation in one day or not, this seems to be Parliament where the other side thinks that because it has a majority of some 11 members, a razor thin majority as the member for Winnipeg Centre says, it has the right to do anything it wants at whatever speed it wants and claim that it has a strong mandate from the people of Canada.
As I said to the committee, I was here in the 33rd Parliament when the right hon. Brian Mulroney was prime minister. I believe there were about 295 members in the House at that time. Sitting on the government side with the Progressive Conservative Party were some 211 members out of some 295 members in total. However, in that Parliament, when legislative committees met, they had discussions and heard from witnesses and amendments were moved by the opposition and were accepted. I moved a number of amendments to a particular piece of legislation to establish the Atlantic Canada Opportunities Agency. Those amendments were accepted in committee. We travelled, we heard from people and amendments were proposed by government and opposition members. There was a collaborative approach in recognition that the people on the committee were elected to Parliament and had the knowledge and wisdom to bring something to legislation.
That seemed to be totally absent in our committee, and certainly in the approach taken by the current government here. I say that only as a preface to the substantive remarks that I want to make here, because there are substantive issues and problems with the proposed legislation, Bill C-30.
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One of the strangest occurrences in our committee was when we had internationally renowned experts, people who had studied at significant universities around the world, coming forward to give testimony. One of the members of the committee on the government side had a habit of ignoring all of their qualifications. Rather, he would ask if they had ever been a victim of crime. These internationally renowned experts on criminology were scratching their heads and wondering what the purpose of this question was. The purpose seemed to be that if they were not victims of crime he did not want to hear from them, that their opinions were useless. The member was not concerned that they went to Harvard or Stanford but whether they had ever been victims of crime. Frankly, I found that rather astounding. The individuals said that they were all victims of crime of one sort or another over the years and asked what that had to do with anything.
One person who had gone to these universities was an internationally renowned expert in criminology. He could provide a factual basis for his opinions. People who are researchers, who write papers and are experts are not classified as such just because they have opinions. They have done the work. They actually look at the statistical history and effects of incarceration, whether it works, where it works and where it does not work. They are able to tell us the history of the war on drugs in the United States and what effects incarceration rates have had on crime, costs, et cetera. These are people who bring their knowledge to a committee of the House to inform legislation, to ensure we are taking initiatives that work, rather than just meeting the ideological needs of someone in the House or the government.
We are not supposed to be making criminal laws and criminal justice to suit the political or ideological needs of a political party because it wants to satisfy certain opinions out there. That is not the purpose of our legislation. We are here to argue against simplistic approaches. We are here to talk about what needs to be done to make our streets safer, rather than simplistically saying that what we need to do is incarcerate people longer and have minimum sentences so that we are tough on crime. We see that as the political objective of a party so that it can go back to the public and its electors to say that it said it would be tough on crime and is tough on crime, regardless of the facts, expert opinions and experience, such as that presented by the Government of Quebec with respect to the youth criminal justice system.
On Mandatory Minimums
The minister talked about mandatory minimum sentences. Here there is a small anomaly, which I have to acknowledge, on the part of our party. The NDP, generally speaking, is opposed to mandatory minimums, and I will go into the reasons why. However, on our part, there were two exceptions to that in the last Parliament. One was regarding sexual predators against children. We believe there is a strong consensus in this country on mandatory minimums for sexual offences against children, the Internet predator offences that are contained in the bill and sexual assaults generally against children. The second was regarding the provisions contained in the gun bill, that is, in regard to the use of guns in the commission of a crime. Mandatory minimums should be imposed in those circumstances to send a very strong message that the use of guns for crime in this country is not tolerated at all…
Our system of civilization demands that we have a punishment that fits the crime, which involves not just the person’s actions but also the responsibility of the individual for the crime and all of the surrounding circumstances, including the history of the person. Someone who commits a crime in one particular circumstance may get a stiffer sentence than some other person who committed the same crime. Why? Perhaps the individual was a repeat offender, or had a history of crime, or the victim was particularly vulnerable or there were aggravating circumstances that surrounded the crime. We cannot have the legislature deciding all of the circumstances. That is not our job.
Principally the Criminal Code says that the maximum penalty shall be a certain amount and then it is up to the judge to determine what sentence fits that crime, a particular offender and the circumstances that surrounded it. This is the principle of justice that prevails.
For example, some amendments were proposed to try to ameliorate some of the arbitrary sentences put forward. We talked about the experience in the United States, which has quite a lot of mandatory minimum sentences. We talked about the reasons why they were negative. The opponents to mandatory minimum sentences, which the committee heard, said that they had little or no deterrent or denunciatory effect. That is particularly true for children. That is why changes were made to the Youth Criminal Justice Act regarding stronger sentences for young people. They have little or no deterrent effect. Experts told the committee that.
The problem with mandatory minimum sentences is that they maintain rigid penalty structure limits on judicial discretion, thereby preventing the imposition of just sentences by having a mandatory minimum
In addition, opponents assert that mandatory minimums can make it difficult to convict defendants in cases where the penalty is perceived as unduly harsh. That involves a couple of factors. Sometimes, people who are charged with crimes may be persuaded to plead guilty if they feel they will be treated by the courts in a manner consistent with the actual severity of the crime. However, if they face a mandatory minimum, they will plead not guilty, seek a trial and they may be successful. The rate of acquittals in situations where people go to court trials can be quite high. If we have a jury and the jury is aware of the mandatory minimum, it has been less willing to convict in certain cases.
There is also a concern about the fiscal consequences of the penalties, increasing the burden on prosecutorial resources and substantial increases in prison population. We have heard from across the country that this would place a significant burden on provincial resources throughout the country.
On Changes to the Young Offenders Act
The Government of Quebec passionately spoke to our committee about its 40 years of experience with the Youth Criminal Justice Act and the approach to rehabilitation. I must say I admire the minister who came to our committee and the way he talked with obvious passion and knowledge about the kind of people who come into the youth criminal justice system. He looked around the room and said he was talking about young people who do not have the advantages of the people sitting around this room, who did not grow up in homes with everything they needed and many of the things they wanted. In some cases they grew up in very difficult circumstances.
He saw the youth criminal justice system as a way to save those children, those young people and to use the principle of rehabilitation, not put them in jail for four or five years where they would meet and interact with other people who have committed crimes, learn from each other and come out in a criminal mode as opposed to being rehabilitated.
He said that their approach has worked. They were angry that their approach was being undermined by legislation that was being proposed, and has now passed this House and in the Senate.
We have amendments here from the Senate on one aspect of the bill. The people of sober second thought should have used some of that thought to send this back to the House with a whole bunch of amendments saying, “Hold it, you are going too far. This is not going to work.” What Quebec’s public safety minister said to the committee of the House is true. What the experts said to the committee of the House is true. I am sure they could have heard that from them, and probably did. Why do we not see amendments on that?
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I am not saying that every person who commits a crime is somehow a victim of society. I have been around too long to think that. We have people from all walks of life who get into difficulty with the criminal justice system. However, many who do run afoul of the law have societal problems or poor backgrounds. Some may have difficult family lives or may have no proper home in which to live. They may be living in poverty and do not have the essentials of life. They may be in a home that is forced to go to a food bank. We know that by the number of food banks. We know by the demographics of this country that many people live in poverty, especially families headed by a single parent where the children do not have the opportunities that some of our kids have. They do not get the music lessons. They do not get to play hockey, join a soccer team or participate in extracurricular activities. They may have difficulty even having the right clothes to go to school and be accepted by their classmates and friends. They may grow up in an aboriginal community with a poor school. They may not have the things that make their life and their prospects something positive to look forward to and they may run afoul of the law one way or another and come into contact with the youth criminal justice system.
What attitude and approach do we want to take? The youth criminal justice system as it is written right now is telling us that the object of this act is rehabilitation, that based on that and based on the Quebec system and approach totally having the means, through its approach, for decades, and resulting in it, that this must be significant.
I do not know if this has been discussed in the House before but when we hear the Minister of Justice and the attorney general of Quebec saying that this approach has been used in Quebec for nearly 40 years and that for decades it has had the lowest rate of recidivism for young people in the entire country, I feel like yelling hallelujah. I am pleased that somebody has proven that rehabilitation works so let us get on the bandwagon and find out how we can replicate this from Newfoundland and Labrador to Yukon.
On the Elimination of Pardons
What else does this bill do? The minister talked about making pardons more difficult to get. The government is going further than that. Nobody can get a pardon anymore, unless the person goes to cabinet. The cabinet can give a pardon, just as the king can give a pardon. The royal prerogative is still there.
However, in this process people who might have been found guilty or pleaded guilty to a shoplifting offence at age 18 or 19 cannot get a pardon. They can apply under the Criminal Records Act to the Parole Board. It costs $600 now whereas it used to cost $25. People can pay $600 and go through the process, but at the end of the day, they will not get a pardon. If they are successful they will get what is called a record suspension. I do not know exactly what that means. I have an idea that their record would be suspended, but it is still there and presumably can appear again. The so-called man or woman in the street does not know what a record suspension is. Most people who have heard of record suspensions think of suspended sentences or something like that.
The whole notion of a pardon has a certain redemptive quality. It is something that says yes, the person did something when he or she was age 18, 19 or 20 and he or she received a pardon for it. The person may have done something, but he or she has been rehabilitated and can demonstrate to the Parole Board that his or her behaviour since the commission of the offence is such that the person does not have to have it hanging over his or her head for the rest of his or her life.
If people do not think this matters, they should talk to the woman in her forties who came into my office recently. She said that she cannot get a job with the hospital corporation. It will not hire her. She is a single parent with responsibilities for her children. She had taken a course and was ready to go into the workforce. She had been accepted for a job, but she cannot have the job because when she was age 18 or 19, she pleaded guilty to shoplifting a few chocolate bars. Her parents paid a fine. This criminal record has been following her around for over 20 years and is preventing her from getting work….
This is consistent with the attitude we hear from the government. There is this punitive attitude for people who have run afoul of the law, who have done something wrong at some time in their lives, and granted, some are more serious than others. We have to recognize that serious crimes deserve serious punishment. No one is objecting to that. Our Criminal Code provides for maximum sentences that are quite high for serious crimes. There is provision for sentencing guidelines that can be put in place. However, when a punitive approach to criminal law is applied down the line, this is the kind of result we get. A single parent is denied an opportunity to work because the system cannot respond to her desire to have a pardon in order to get a job. That is wrong.
It is wrong to say people cannot have a pardon, that they can have a record suspension. Why are the Conservatives doing that? I did not hear any rationale. I did not hear anything that said there is something wrong with the word “pardon”. I did not hear it from one end of this debate to the other from anyone opposite. We know what pardon means.
As I said earlier, there is a redemptive aspect to it, whether we go back to the Bible or various aspects of religion, if people apologize for something that expiates their guilt somehow or other. If people serve their time, pay their debt to society and all those notions, the state can tell the Parole Board to pardon them for their offences and they can now hold their heads high. A young fellow who did something stupid when he was 18 or 19 and is now 24 or 25 can say that he wants a fresh start and wants to be a citizen with a clean record . A pardon does that but the government wants to take that away.
A lot of things in this bill are reprehensible but that one is more than reprehensible. It is, in fact, punitive. I cannot think of enough words to express how wrong it is to tell someone that he or she can only be pardoned if the cabinet agrees, which is basically what is being said. The word “pardon” is still there but it is not available anymore unless the cabinet agrees to it. I do not know when the last time that happened, if ever. It is actually the royal prerogative of pardon.
On Conservative Divisiveness and Political Methodology
That is the point here. The other side asks, “What about the victims”, Do we not care about victims over here? I find that rather ludicrous, but it is also part of Conservatives’ notion of dividing Canadians. They say, “We are in favour of victims and they are not”. Not only do they say we are not in favour of victims but that we are also in favour of criminals and are standing with child predators or molesters. That is the kind of dynamism the government is trying to impose on sensible, common sense Canadians, but that is ludicrously wrong. In fact, it is so wrong, I need to explain it.
We came to the House and said we would like to carve out part 2, the sexual offences against children provisions, the new provisions on Internet luring, the new offence of showing pornographic pictures to children, as an aspect of the so-called grooming of children for sexual offences. We wanted to take them out, put them on the table and pass them right away. What did the Conservatives say over there? They said no, that we are just wasting time and want to delay things. In fact, we want to fast-track those things.
Why? I can go back to my speech on the day. I said that the New Democrats thought it should be brought in now because it would actually prevent other crimes of sexual assault and predation from being committed. Those provisions, which we support, would prevent crimes of sexual assault before they were committed. If someone were caught in the act of Internet luring, grooming or the other offences, and were arrested, they would not get to the point of sexual predation or sexual assault. They would have been caught before that. The experts and knowledgeable people on sexual offences know there is a process and that one thing leads to another. There is a continuum along which offenders go and this legislation would stop them. This was for the victims.
I want to say, by the way, to those over there who think that no one over here cares about victims, I am not prepared to listen to that. I spent seven years fighting for the victims of the Mount Cashel Orphanage scandal to get redress in the courts. That is what I did for seven years and I do not want anyone over there suggesting that this member or my caucus does not care about victims.
When it comes to justice for people before the courts who are being subjected to an injustice, they too deserve the protection of our law and of parliamentarians. I do not want to get caught up in the Conservatives’ black hat-white hat mentality, saying that they are the only ones who care about victims and no one over here does. We care about justice and that the laws we pass give opportunities for justice to be achieved in this country.
On Deterrence, Stronger Policing, and Evidence Based Legislation
It is shocking when we hear about the criminal acts that are occurring in our cities. Some are arbitrary acts. A passerby is murdered for no reason except that the person happened to be in the wrong place at the wrong time. The number of illegal guns that are available is an evil that has to be dealt with. There are people who think it is great to pack a pistol, but that is not the kind of society we aspire to in Canada. We need to ensure that our police forces are enforcing that.
A lot of people in government talk about deterrence and long sentences. All of the criminologists and experts, whether they be university professors, people who studied criminology, or people working in the field, testified that the greatest deterrence is the certainty of being caught. We need to support our police forces. If people think they are going to be caught and punished for a crime, that acts as a deterrent more so than the fact that they are going to get nine months or twelve months versus six months. People do not read the Criminal Code before they commit a crime. They do not sit down and decide on what crime to commit. That is a fact based on research and evidence. Mandatory minimum sentences rarely act as a deterrent, but the certainty of being caught is a deterrent and someone will be less likely to commit a crime.
This is an important problem at issue here. We like to urge the government from time to time to do things, and this is a good way of doing that. We should have evidence-based decision-making. If our government is seeking to change laws and incur significant additional expenses for our criminal justice system and for our provinces, then it should at least be based on some evidence showing that it will work. We heard time and time again from the experts that these laws will not be effective in reducing the number of criminals, in reducing the amount of recidivism. They will not make our streets safer.
Rehabilitation is not just about the individual. As a member of society, I want somebody who is convicted of a crime and goes to jail, who is under the supervision of Correctional Service of Canada, to be rehabilitated for me. For the individual’s sake I want him or her rehabilitated because that is a good thing. I want the person to be a productive member of society, but I also do not want the person to go around committing further crimes.
Rehabilitation is not only about doing good for the criminals. It is not about coddling criminals, which some like to say from time to time. Rehabilitation of an offender is about making our streets and communities safer and reducing the number of crimes that are committed. Rehabilitation is an important societal goal because it helps to make a better society. It helps to make our communities safer.
If people do not understand that, then they are not using their heads. Evidence-based decision-making is about using one’s head. It is asking what works and what does not.
I do not get any pleasure from seeing someone commit a crime and then go to jail for a long time. Obviously, we want justice to take place. Someone who commits heinous crimes deserves serious and significant punishment. However, we have to be mindful of the fact that we cannot have a system that relies overwhelmingly upon punishment and retribution and does not recognize the importance of rehabilitation.
If one does not try to ameliorate the circumstances underlying a person’s criminal behaviour, one cannot protect oneself in the future because one has not done anything to try to prevent those circumstances from causing further crime to take place. There are different ways of saying the same thing, but the point is that if a criminal is rehabilitated, one protects society. If one rehabilitates a young person, not only does one protect society, but one gives that young person a positive life, one that can improve over time.
On Costs, and a Bit of Scrapping
One of the outcomes of the Parliamentary Budget Officer’s exercise was to discover that the government did not have any figures. The only figures produced by the government when it was asked about the costs of the bill was that there was no federal cost and that it did not know what the provincial costs would be. Therefore, the Parliamentary Budget Officer asked recently if the government had any figures now. It said it did not.
We are imposing measures that will have consequences for provincial governments and the Government of Canada. They are measurable. The increased cost as a result of the bill, only for conditional sentences, would come from the larger number of hearings the parole board would have to hold. The government knew the number of hearings and the average cost per hearing. If we multiply one by the other we come up with $8 million. It is not rocket science, but based on actual projections of the number of cases for each of these different offences.
It was a bit tedious, but for the last year in which reports were available, that is, 2008, Statistics Canada could find the exact number of people convicted of these particular offences during that year. The numbers were there, and the number of people who would actually be convicted and go to jail was extrapolated from that. All of these figures came out. However, we had someone on the other side saying that the Parliamentary Budget Officer had not been right yet. I guess there is a big difference between the $750 million the Parliamentary Budget Officer came up with as the five-year cost of this provision and the government’s figure, which is, “We do not know”. The government’s figure was, “We do not know” and the Parliamentary Budget Officer’s figure was $750 million over five years. That is the nature of this debate about the costs to Canadians of just one measure in the entire Bill C-10.
The government members do not want the Parliamentary Budget Officer’s information and report to be tabled before the House, I guess because it is a bit of an embarrassment. It is not as if the amount of money over five years, the $750 million, is going to break Canada. I am not suggesting that. However, if it is a difference between $750 million and “We do not know”, then that tells us something about what goes on over there when they are deciding to bring forward legislation.
They do not even bother to figure it out themselves, and they are the ones who seem to be interested in talking about parties’ fitness to govern. Is that something we should be wondering about in terms of their fitness to govern here? Are these the fiscal managers, the people who tout themselves as the great fiscal managers of Canada, the ones whom Canadians should have faith in to run the country because they are so good at fiscal management?
We have a contrast here. The Parliamentary Budget Officer, who was appointed by the Prime Minister to advise parliamentarians on these issues, did a report at the request of a member of Parliament and said it was going to cost $750 million over five years. That is just one measure in this huge bill.
The government says “We do not know.” It has never bothered to try to find out, although it did claim it was going to cost the federal government nothing. The Parliamentary Budget Officer says it is going to cost the federal government $40 million over five years in additional expenses and it is going to cost the provinces another $710 million, or something in that range. The government is saying that it is going to cost it nothing, and it does not know what it is going to cost the provinces. It did not even try to figure it out.
This is what we are faced with in dealing with a government that is arrogant and out of touch with the realities of Canadian life.
Mr. Paul Calandra (CPC. Oak Ridges-Markham): It is so arrogant to put criminals in jail—
Mr. Jack Harris: It is out of touch with the consequences of what it is doing, whether it is fiscally, or—
Mr. Paul Calandra: Breaking the law puts them in jail. That is arrogant.
Some hon. members: Oh, oh!
It is disturbing to know the enormous expense that comes with the bill. The Minister of Justice and the Prime Minister have from time to time said so what, that is the nature of the Constitution. They say that they have the responsibility for passing the criminal law and that the provinces have the responsibility for the administration of justice. If that is their constitutional responsibility, they say that they are prepared to let them take their responsibility and they will take theirs. However, that belies the nature of our Confederation. We have a country that depends on federal-provincial co-operation, or at least respect, at least consultation on matters like the cost.
What we hear is that the government does not even know the costs. It is not even going to look at what the costs would be. It is not going to consult on the burden of the costs. It is just going to go ahead and say that it is the federal government’s job to pass criminal law and that it is the provinces job to pay the costs of incarcerating people, the prosecutorial costs, the legal aid that is generated by the new provisions and the extra amount of trials that there would be to deal with the mandatory minimums. That would all fall on the heads of the provinces and the federal government would let them look after it because, after all, it is their constitutional responsibility.
There is a nice intellectual argument that, yes, we can divide sections 92(a) and 92(b) in the Constitution, but the reality is that the Confederation of Canada involves a partnership and that partnership needs to be respected. The dignity and role of the provinces must be acknowledged and respected in terms of that imposition. I used the term “downloading” once and someone suggested that was wrong because the provinces had those responsibilities in the first place. However, if it is not downloading, it is creating new costs for the provinces that are not there now. The federal government is creating these costs because it would increase the number of people who end up in jail.
Someone opposite said that all the government was trying to do was put criminals in jail. If that is all it is trying to do, I could still argue on how long offenders will be put in jail. We could argue about whether jail was the best place for some of them or whether a rehabilitation program would make our communities safer. The assumption from members opposite seems to be just to put criminals in jail.
If the members on that side just want to put criminals in jail and want us to agree with them, that would not be much of a debate because that is not our responsibility as members of Parliament. Our responsibility is to examine the laws to see whether they will actually work and whether this is a bill to make streets safer or a bill that will result in more crimes, more criminals and more victims. That is our concern about the other side.
