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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, December 11, 2002

1540

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. Steve Sullivan (President, Canadian Resource Centre for Victims of Crime)

The Vice-Chair (Mr. John McKay)

Ms. Michelle Meredith Wreggit ( As Individual)

1545

The Vice-Chair (Mr. John McKay)

Ms. Carole Brosseau (Lawyer, Research and Legislation, “Barreau du Québec”)

1550

1555

1600

The Vice-Chair (Mr. John McKay)

Ms. Elizabeth White (President, Canadian Criminal Justice Association)

1605

Mr. Matthew Yeager (Member, Policy Review Committee, Canadian Criminal Justice Association)

1610

The Vice-Chair (Mr. John McKay)

Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance)

The Vice-Chair (Mr. John McKay)

Mr. Garry Breitkreuz

The Vice-Chair (Mr. John McKay)

Mr. Garry Breitkreuz

The Vice-Chair (Mr. John McKay)

Me Carole Brosseau

1615

The Vice-Chair (Mr. John McKay)

Mr. Garry Breitkreuz

The Vice-Chair (Mr. John McKay)

Mr. Matthew Yeager

The Vice-Chair (Mr. John McKay)

Me Carole Brosseau

The Vice-Chair (Mr. John McKay)

Mr. Steve Sullivan

The Vice-Chair (Mr. John McKay)

Mr. Garry Breitkreuz

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

1620

Mr. Matthew Yeager

Mr. Richard Marceau

Ms. Elizabeth White

Mr. Richard Marceau

1625

Me Carole Brosseau

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Mr. John Maloney (Erie—Lincoln, Lib.)

Mr. Matthew Yeager

1630

Mr. John Maloney

Mr. Steve Sullivan

Mr. John Maloney

Mr. Steve Sullivan

The Vice-Chair (Mr. John McKay)

Mr. Matthew Yeager

1635

The Vice-Chair (Mr. John McKay)

Mr. John Maloney

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Ms. Elizabeth White

Mr. Steve Sullivan

Mr. Chuck Cadman

Me Carole Brosseau

1640

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Matthew Yeager

Mr. Paul Harold Macklin

Ms. Elizabeth White

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau

Me Carole Brosseau

Mr. Richard Marceau

Me Carole Brosseau

Mr. Richard Marceau

Me Carole Brosseau

Mr. Richard Marceau

1645

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin

Ms. Elizabeth White

Mr. Paul Harold Macklin

Me Carole Brosseau

1650

The Vice-Chair (Mr. John McKay)

Ms. Michelle Meredith Wreggit

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

Mr. Steve Sullivan

Ms. Michelle Meredith Wreggit

Mr. Chuck Cadman

The Vice-Chair (Mr. John McKay)

1655

Mr. Paul Harold Macklin

Mr. Steve Sullivan

Mr. Paul Harold Macklin

Ms. Elizabeth White

Mr. Paul Harold Macklin

Me Carole Brosseau

Mr. Paul Harold Macklin

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin

Ms. Elizabeth White

The Vice-Chair (Mr. John McKay)

Mr. Steve Sullivan

Le vice-président (M. John McKay)

Mr. Richard Marceau

1700

Ms. Elizabeth White

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

Ms. Elizabeth White

Mr. Chuck Cadman

Me Carole Brosseau

1705

The Vice-Chair (Mr. John McKay)

Mr. Steve Sullivan

The Vice-Chair (Mr. John McKay)

Ms. Michelle Meredith Wreggit

The Vice-Chair (Mr. John McKay)

CANADA

Standing Committee on Justice and Human Rights

NUMBER 010

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, December 11, 2002

[Recorded by Electronic Apparatus]

¹ (1540)

[English]

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): If I may, I'll call this meeting to order. This is the Standing Committee on Justice and Human Rights, and we're continuing the study of conditional sentencing.

We have with us Steve Sullivan, who's president of the Canadian Resource Centre for Victims of Crime--welcome again--and with him is Michelle Meredith Wreggit. From the Barreau du Québec we have Madame Carole Brosseau, and from the Canadian Criminal Justice Association we have Elizabeth White and Matthew Yeager. Welcome all.

You all know that it's a ten-minute presentation and then a Q and A after that. I'd ask you to stay as closely as you can to the ten minutes, and I'll try to signal that we're close to the ten minutes just prior.

Does anyone in particular want to go first? How about Mr. Sullivan? He seems to be the veteran here.

Mr. Steve Sullivan (President, Canadian Resource Centre for Victims of Crime): Thank you, Mr. Chair.

I'll keep my opening remarks relatively brief, as it's probably more important that you hear from Ms. Wreggitt than from me.

Just as an opening remark, there was originally a publication ban on Ms. Wreggitt's identity. She's a victim, but she asked for that ban to be removed by the court, so there is no issue about her identity being made public.

The Canadian Resource Centre for Victims of Crime is not opposed to conditional sentences in general. We support their use to reduce the use of incarceration. Our specific concerns relate to some of the offenders who are getting conditional sentences, and these I certainly hope are the rare exceptions for conditional sentences. These are the individuals who commit serious acts of violence, especially offences involving children.

That is the particular issue we have with conditional sentences, and you'll hear from Michelle in a moment about her own case and how conditional sentences were used for crimes of violence of a sexual nature. We're not here to ask the committee to abolish conditional sentences; we are here to ask the committee to reconsider their use for offenders who commit serious acts of violence, sexual offences and offences involving children. How you do that, whether you do that through a legislative amendment that bars certain offences, whether you do that through an amendment that creates a presumption that conditional sentences are not to be used for those kinds of offences.... I assume you'll hear more about that, and you've heard some of that debate already.

We'd also like to encourage you to consider recommendations regarding victims and their understanding of information they receive about conditional sentences. As you know, there's not much understanding among people who've been through this, let alone in the public. We have some recommendations we can get into later on that.

I would just like to make one comment, and it's about the way conditional sentences were sold to the public. The point of them was to reduce incarceration. That's not a bad goal, but really that's the whole point. But they were sold to the public, I think, as being about restorative justice, and I have to take issue with that.

These sentences in and of themselves have nothing to do with restorative justice. Restorative justice is an approach to crime that incorporates the views of the community, the victims, and the offenders and talks about accountability and reparation to victims. The fact that someone doesn't go to jail is not a restorative justice sentence. It might be if there were a process by which the victim were involved and there were an agreement, but the fact that a judge says that someone's going to serve his sentence in the community doesn't make it a restorative justice sentence. I'm willing to bet that in the majority of similar cases we've seen, victims either have not understood conditional sentences, certainly haven't agreed, or haven't even had their views put to the judge.

I just wanted to make that statement because this has been touted by the Supreme Court, I think incorrectly, as being more restorative in nature. That really distorts the whole purpose and definition of restorative justice.

I'll cut my remarks there and ask Michelle to share her story with you.

The Vice-Chair (Mr. John McKay): Thank you.

Miss Wreggitt, you have seven and a half minutes left.

Ms. Michelle Meredith Wreggit ( As Individual): Today I find myself in the company of representatives and professionals, and I have to admit that I'm both humbled and honoured to speak. Thank you.

I'd like to thank Mr. Sullivan for inviting me, as well.

Seven years ago, I could never have envisioned this. I couldn't see beyond the dark, unfinished basement that my son and I were locked in, or beyond the physical abuse I grew to accept as normal. For me, being given this opportunity for my voice to be heard is still startling, so please excuse me if I relate my personal grief with what may come across as exuberance.

I work as a behaviour therapist and crisis counsellor for the department of psychology at Millhaven Penitentiary. This too still sounds astonishing and foreign to me, because when I actually stop to think about it, it was beaten into me for so long that I was nothing but a fat, stupid, and horribly inadequate being, and I began to slip deeper and deeper into a state of mind and a state of captivity that prevented me from protecting both my son and me from over eleven years of perpetual violence.

On December 17, 1999, my ex-husband, a children's services worker for the Kingston Children's Aid Society, was convicted of nine counts of assault, including two counts of sexual assault and two counts of child abuse against my son and me. Time does not permit me to relate how and long and how hard a struggle it was in both family and criminal court to get to these convictions, but I will tell you that I was ignored by the police, denigrated by our local family court clinic, and threatened by the Children's Aid Society.

There were literally hundreds more assaults that were documented and disclosed, as well as other victims that had come forward, but unfortunately, the court did not wish to hear about this.

Until six months ago, my son was ordered by the court to attend lengthy supervised visitation with his father, and the frequency and duration increased. Prior to the conviction, the family court felt that it was acceptable for my former husband's ex-girlfriend to supervise these visits. She was deemed to be neutral in the eyes of the court. Today my son has his own lawyer and is able to talk about the additional abuse he suffered during these court-ordered supervised visits.

I don't mean to be disparaging, but I have to admit that it is most frustrating and frightening when it appears that the life of your child has very little value to the court. Court-ordered visitation after conviction was finally suspended this April when my ex-husband's behaviour became so erratic and unstable that staff at the Salvation Army refused to conduct these access visits any longer.

On Valentine's Day, 1998, I remarried. Dave is the most wonderful, supporting, understanding, and caring husband and father I know. He has brought both joy and meaning to our lives, and he and my son share a bond that's unconditional and natural.

Sadly, my own case has gravely affected his own relationship with his two daughters. While Dave was entangled in family court issues of his own in June 2000--that is, increasing his access time with my stepdaughters--it gave my ex-husband a malicious opportunity to interfere with our lives. Prior to his sentencing on June 2, 2000, my ex-husband released my victim impact statement to Dave's ex-wife and her lawyer. My victim impact statement had not yet been filed with the Superior Court and was not yet a public document. In addition, it was still under the publication ban ordered by the criminal court justice. The family court justice did not seem to think this was important, and for an entire afternoon I was grilled about the negative effects I had suffered as a victim and was chastised for being diagnosed with post-traumatic stress disorder.

My victim impact statement was never entered as evidence during Dave's family court proceeding, though it was certainly referred to in the final judgment. In the end, Dave lost custody of his two children, and significant custody time was taken away from him--cited as one of the primary reasons for this, that I am a victim of crime and therefore am not a suitable role model for Dave's children.

We tried to appeal this decision; we lost. As a result of our continued costs, we are now bankrupt. So far, I have solicited the services of about every agency and government office I can think of. Everyone has dismissed me. The Minister of Justice will not respond to my letters or to the letters written on my behalf by Mr. Alan Young, a lawyer at Osgoode Hall.

My ex-husband was sentenced to two years less a day, to be served in the community, even though his probation officer stood before the court admitting that our community does not have the resources to monitor such individuals. Cited as one of the reasons for this lenient sentence was his education and work history.

¹ (1545)

He was actually lauded for having been able to maintain positions of trust within the community, while assaulting his family. There was little restriction on his movement and no supervision. He continued to enlist the services of lawyers, funded by legal aid, to motion me to court almost bi-weekly, while I have to pay a lawyer to respond. No one can recompense me for my legal fees.

Because of conditional sentencing, my ex-husband freely moves in the community and is able to motion me to court continuously. He is still funded by legal aid, while I am not. He is employed, but has not paid child support in over three years. He owns property and a vehicle, yet our family court judges keep waiving his accountability to the family responsibility office.

While serving his conditional sentence, my ex-husband changed residences regularly and would lie on affidavits about where he lived. His parole officer would not tell me where he lived, even when he moved into the same apartment building as my mother and my grandparents. Rather, I was cautioned to be careful when visiting my family.

I have no privacy. He knows where I live, where I work, and where I am at any given time. He would follow me in his car, punching the horn and gesturing at me, and the police would not respond when I called.

Part of my ex-husband's conditional sentence was that his driver's licence was to be taken away for one year. No one informed me that he had written a letter to the sentencing judge and had this overturned.

Perhaps what is worst of all is the invasion of privacy this has had in our own home. My stepdaughters are grilled by their mother about our safety system, the layout of our home, our comings and goings on, and she, in turn, gives this information to my ex-husband. During supervised access earlier this year, and before, my son was interrogated by his father about the accuracy of this information. It is ceaseless.

The police have cautioned Dave's ex-wife. I'm wondering just how effective this will be. Indirect harassment has not stopped, and I'm not sure if it ever will. I can't help but think that a prison sentence would have given us some reprieve, even if just a while to recover from the trauma of the trial. In the last line of my victim impact statement, I wrote: It will never, ever, be over. Sadly, today I still believe this is true.

Once again, I thank all of you for giving me this opportunity to be heard.

The Vice-Chair (Mr. John McKay): Thank you.

Who is next, Ms. White or Mr. Yeager? Or Madame Brosseau?

[Translation]

Ms. Carole Brosseau (Lawyer, Research and Legislation, “Barreau du Québec”): First of all I would like to thank you for allowing us to participate today. My name is Carole Brosseau and I am a lawyer in the research and legislation service of the Barreau du Québec.

For those people that might not be familiar with our work I will explain quickly how we operate. We work in committees specializing in law and study certain questions to make reports. The reports are submitted to the administrative committee of the Barreau, specifically to the President of the Bar who endorses or not the official position of the Barreau du Québec.

Concerning our work I will restrict myself to legal considerations since the question is not specific.

First it is important to understand that the legislated changes adopted in 1996 created new ways to determine appropriate sentences mainly by introducing restorative measures rather than strictly punitive measures. The alternative measures program that has not yet been adopted by Quebec is an example of this approach. Other examples are the restitution orders and the conditional sentences.

This change of principles and this new approach towards a legal system more restorative and therapeutic, target dual goals of punitive and corrective sentencing.

That being said, after doing research on conditional sentences and specifically on sections 742 and following, I was very surprised to see how many precedents there are, not only at the Supreme Court level but in all other jurisdictions.

However, this measure has been given a distinct interpretative meaning with the Proulx case, pronounced by Judge Lamer in 2000, as well as the five judgments that followed it. Otherwise I agree with Mr. Sullivan that the public has difficulty grasping the meaning of this measure.

To illustrate, I will present an extract from a judgment pronounced in July 2002 by Judge Danielle Côté of the Quebec Court. While leveraging the criteria established in Proulx, she nonetheless clearly indicate the difficulties rising from these legal provisions. To help me present today I brought a copy of the judgment. I could give the copy to Mr. Martin.

Indeed while outlining the conditions and the framework of the incarceration measure and stating that it is often perceived as too lenient she says:

[32] These considerations are linked to the fact that conditional sentences are still perceived by the majority of our fellow citizen as too lenient and even inadequate.

[33] However, in many cases house arrest has been found to be much harder than expected by people asking to purge their sentence in the community.

Actually the Proulx case was based on the same premise that this type of sentence has two goals: one punitive and one restorative. Overall I find that Proulx really framed these legal provisions.

¹ (1550)

With respect to Mrs. Michelle Wreggitt’s testimony I would say there are aggravating factors; meaning that this new measure fits within the new general guidelines of the sentencing. Certain aggravating factors must be taken into consideration as well as criminal information that are elements that are integral to sentences’ objectives whether they lead to incarceration or not.

However, until 2000, this measure was considered an alternative to incarceration. Judge Lamer in Proulx clearly indicated how the measure is not an alternative but rather a response to the failure of the prison system; that by this measure we are trying to position incarceration differently but that it remains much more punitive than probation or suspended sentences.

When Bill C-41 on sentencing was adopted in 1996 the Barreau du Québec voiced its opinion on conditional sentencing. The only comment made was that we thought conditional sentencing would reduce the number of suspended sentences and probations. I have recent statistics that show that at least in Quebec that has been the case. There have been fewer probation orders in favor of stiffer sentencing such as conditional sentences as Judge Lamer has said. We already witness a preference for adopting the hard-line while not choosing the traditional prison system.

The most recent statistics of 2000-2001 show an increase of 17% in conditional sentences from 1998-1999 in all jurisdictions except for Ontario’s. These are general statistics of course but in Quebec in particular this measure is very popular. Quebec is the leader. In 1999, 26% of all conditional sentencing had been pronounced in Quebec which means that it has really adhered to the program even if it has not implemented the alternative measures program.

Also I would like to stress an important element discussed by one of the witnesses earlier: the supervision of offenders that needs to be done. There was a wave of criticism in Quebec a year or 18 months ago about such sentencing because of the lack of resources to effectively supervise conditional sentences offenders. The provincial Minister of Public Security, Mr. Ménard, adjusted to that reality by offering a greater number of services and by hiring a greater number of supervising officers to give them additional resources and to improve the public’s perception in general.

Since the Chair signals that I have little time left I would like to conclude that the Barreau du Québec would like to maintain this disposition with the criteria established by Proulx. It would also like to discuss an inconsistency with respect to section 255 because it stipulates that for driving under the influence it is not possible to give a conditional sentence if the sentence is the minimum one. However in the case of driving under the influence section 255 provides for a sentence of 14 days of incarceration for recidivists.

¹ (1555)

We find an inconsistency between the principles of conditional sentencing and the 14 days minimum incarceration that is done anyways in a discontinued manner. Therefore since it is a working committee we recommend that this situation be re-opened for discussion.

º (1600)

[English]

The Vice-Chair (Mr. John McKay): Thank you very much.

Mr. Yeager or Ms. White.

Ms. Elizabeth White (President, Canadian Criminal Justice Association): I'll lead off. Thank you.

I'm Elizabeth White, appearing as president of the Canadian Criminal Justice Association and expressing our appreciation for the opportunity to meet with you this afternoon to express very clearly our support for conditional sentencing.

As many of you are aware, the Canadian Criminal Justice Association is a very large, diverse group of people interested in criminal justice across this country. As such, we are rightly sitting in the middle on this panel. We do have numerous publications that deal with the issues of the day, The Canadian Journal of Criminology, Directory of Services for Victims of Crime, Justice Report, and we sponsor the Congress on Criminal Justice every two years. Mr. Yeager will be commenting on one of our specific recommendations after I give you a quick overview of our comments.

You've been well informed about the history of conditional sentencing. We would only stress that it was not simply to be an alternative to incarceration that conditional sentences were derived. They were derived because we are overusing imprisonment as a sanction in this country. I think we are still overusing incarceration, and we must keep that in mind as we look at the options available to us in sentencing.

The bill that brought in conditional sentencing was comprised of two primary parts: the one with regard to the principles of sentencing in section 718, and the other with regard to conditional sentencing. The two really do dovetail. The fact is that under section 718 all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. We believe there's a need to find mechanisms that strengthen the conditional sentencing legislation as it endeavours to reach to that principle.

We do have some concerns about the way conditional sentences have been used in the country. There are comments being made that the application of conditional sentencing should not apply to certain categories of offences, primarily those of a violent nature that threaten the community. However, there is evidence that suggests, in terms of specific deterrents and rehabilitation, that offenders are more likely to respond positively to conditional sentences rather than to periods of incarceration. So measures taken to limit the use of conditional sentencing may in fact increase the risk of recidivism, rather than serving to increase the protection of society.

We do have to worry about the impact of terrible cases, cases where a sentence has been applied inappropriately. With the deepest of sympathy forming his regrets, an experience which has been truly horrific, Mr. Sullivan did note that there are very rare times when the sentence has been used inappropriately to that extent, and those are remediable on appeal. And our courts of appeal have not hesitated to intervene where they feel that the sentence has been given inappropriately. So it is our view that at this point it is premature to judge restricting the offences for which a conditional sentence may be granted.

We still have overuse of incarceration. I repeat myself when I say that, because it is a real issue in Canada. We have had over 52,000 conditional sentences as of August 2001, the latest statistic I was able to get, that have helped to reduce that load. But we musn't forget the horrendous expense of unnecessary incarceration, not just in fiscal terms, because incarceration is very expensive to provide, but also in human terms. We also know that incarceration does not deter crime. Therefore, we must remain committed to avoiding it where possible.

We are concerned about the net widening with the use of conditional sentences. There are the mandatory conditions that must go with the conditional sentence and there are the optional ones. We know that when too many conditions are attached to a primary sanction, the effect of the usefulness of the original measure becomes lessened. So we have two concerns that we would bring to your attention in that regard.

Oneconcern is whether or not sanctions such as probation and diversion are being used less as a result of conditional sentences, and conditional sentences are the upper end. Ms. Brosseau has said that she has Quebec statistics that support that, and there is an abundance of anecdotal evidence from other parts of the country that this is happening.

º (1605)

There is a need for research in this field, and a need to ensurethat we do not up the ante when we go with the conditional sentence rather a lesser alternative.

The use of electronic monitoring is also a concern with conditional monitoring. It is possible that electronic monitoring becomes a tool that doesn't just ensure compliance with the conditions of the sentence, but can become a punishment in and of itself, on top of the conditional sentence. What we need to be effective in reducing recidivism are dynamic interventions, not static ones. We should not overuse conditions that detract from the purpose of the sentence, which is to secure good conduct and prevent further offences.

Electronic surveillance can tip the balance from incarceration to community placement, if supervision is the key. If an individual commitment to compliance may be a bit shaky, electronic surveillance can assist in that regard for a limited period of time. But of course we know that its usefulness reduces after a period of four to five months. If you can reduce public rejection of difficult people serving conditional sentences by providing intense supervision of an electronic type, coupled of course with housing and employment opportunities, then there is a use for electronic monitoring with conditional sentences.

Our recommendations, in brief:

We should allow conditional sentences for prison sanctions, up to and including four years in a federal penitentiary. I will give the floor to Mr. Yeager in a moment on this.

We should amend the potential sanctions to emphasize the desirability of victim-offender reconciliation and reparation, where the victim has indicated a clear willingness to do so.

We should encourage probation offices and community agencies to define the potential resources available to supervise conditional sentences when preparing pre-sentence reports. We need to put adequate resources into community sanctions. It's not good enough to say there's a community option, and then not give it the resourcing it needs to be effective. If we're going to keep pumping money into prisons, we should pump money into the community, and then we'll achieve some lasting effects.

We need to increase public awareness of the purpose of conditional sentencing. I totally agree with Mr. Sullivan that the public comes and goes on sentencing. But I don't think it has been sold to the public. In fact, I think the problem is the public hasn't been sold on conditional sentencing, because it's a fairly complicated option. It's taken the Supreme Court of Canada some time to come up with some guidelines around it, and we are seeing it played out in the courts. So we believe that there should be further information given to the public about conditional sentencing, which will increase its acceptance rate.

We recommend that conditional sentencing be retained and that it be enhanced by expanding its availability through mechanisms, such as increasing the maximum lengths of sentences—where such a sentence can be used—emphasizing its restorative aspects, increasing public support, and demonstrating that economic support is available for its implementation.

Thank you, and I turn the floor over to Mr. Yeager.

Mr. Matthew Yeager (Member, Policy Review Committee, Canadian Criminal Justice Association): One way you enhance a sentencing tool for Canadian judges in the community, particularly in the case where you have the overuse of incarceration--and a number of cases, particularly in the low penitentiary range in which we're dealing with people who are not particularly dangerous right now, who can be managed and who have a high rate of parole and day parole... Often we find these individuals in minimum security facilities in the correctional system or in low to medium security facilities. What our experience has told us, those of us who work with these offenders, is that a great number of those individuals would be excellent candidates for some kind of community-based intervention of the kind we're talking about, enhancing a conditional sentence. That's one of the reasons to more aggressively go after the issue of over-incarceration we still have in the Canadian penitentiary system, a rate that far exceeds that of many of our European counterparts.

The other reason we have suggested that the committee consider allowing up to a four-year sentence is because of the issue of net widening. That is, we have some suspicions, some anecdotal evidence, that what is happening is that we're seeing a displacement effect from conditional discharges, diversion, and regular probation to the conditional sentence. That wasn't the original intent of the legislation. It was really to reduce the overuse of incarceration in the Canadian system both at the reformatory level and at the federal penitentiary level. We're still experiencing high rates of incarceration at both those levels.

Finally, if there are going to be amendments to the conditional sentence provisions, our association strongly believes that we ought to emphasize, as the Supreme Court did in Proulx and in Gladue, the restitutive aspects of this particular sentence. Specifically, this would be done by putting them in as conditions to encourage victims and accused to get together and try, often in the context of a sentencing circle or some other mediation mechanism, to work out a system that would be a little bit more adaptable. I think you've had ample illustration of what some of the problems can be when a victim does not feel that she was part of the process. Those are the major reasons we support that.

We also ask you to be mindful of research, and when we look at research, let's not just look at the individual case or at one case study. Let's make sure that when we look at a particular law and see how it's running, we look at a total number of samples, a large number of cases, to see actually how well people on conditional sentences are doing in Canada.

º (1610)

The Vice-Chair (Mr. John McKay): Thank you, Mr. Yeager, and thank you to all the witnesses.

Now we'll go to our question and answer with Mr. Breitkreuz.

Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): I want to thank you all for your presentations--it's very interesting--and especially Ms. Meredith Wreggitt for her courage in coming before the committee.

I think you know we feel that for serious acts of violence, offenders should not have the option of conditional sentencing. That seems to me a given. The evidence we've had given to us here by Ms. Meredith Wreggitt, well, this should never occur.

The statement was made that incarceration does not deter crime but it may prevent it. I feel that if we had more programs in our communities, as some of you have mentioned, this might have a tremendous impact upon it. One of you advocated that more research should take place before conditional sentences are given. Well, I feel that it should be done before we even put the conditional sentencing in place. We should not be hearing examples like what we've heard today, serious travesties of justice.

Now, we have just had a huge debate in Parliament on how resources should be allocated, and I happened to be in on some of that. The Auditor General recently pointed out that a billion dollars was spent on a gun registry, and we have a lot of sympathy for the victims. This is an area where I feel the money could have been better spent on something else. We know that 1.4% of violent crimes involve the use of a firearm. Would you not agree that the billion dollars spent trying to prevent all the violent crimes in society, including the other 99% we're not focused on here, might be a better way to spend our resources? Shouldn't we be trying to prevent the serious violent crimes that are taking place in society?

The Vice-Chair (Mr. John McKay): Mr. Breitkreuz, did you direct that question to anyone?

Mr. Garry Breitkreuz: I'd just like a brief comment from each of them.

The Vice-Chair (Mr. John McKay): There is some question of marginal relevance on that question, but....

Ms. Brosseau.

Mr. Garry Breitkreuz: Mr. Chair, it's exactly what they said, that they need more resources in the communities, so what I asked would appear to be a very relevant question.

The Vice-Chair (Mr. John McKay): Ms. Brosseau.

[Translation]

Me Carole Brosseau: First of all I would like to say that the statistics show that the majority of conditional sentences currently are pronounced for crimes against property and not for crimes against people. I could look at the statistics to verify but I think it is roughly 50%. Therefore you can see right away that crimes against people are not the ones favored.

Furthermore we were discussing previously resources that needed to be deployed. Indeed we have seen a significant change of perception from the public towards greater confidence in the program after the administrations had made concrete efforts in that direction. It should be done by the provincial administrations since they are responsible for law enforcement. Quebec was able to do it efficiently and securely ever since it allocated additional resources. There is a better follow up and fewer subsequent offences.

º (1615)

[English]

The Vice-Chair (Mr. John McKay): Mr. Breitkreuz.

Mr. Garry Breitkreuz: I've had some experience with the court system in the last year myself, but I won't relate that. I have a very serious concern about the role victim impact statements should be given in court trials, and this was touched on here. Would you suggest that it is imperative that we change the legislation to make it mandatory that victims be allowed to give their impact statements in the courts, not that the statement be simply read by someone else, but that the victim actually be able to present this? Would this be a good way to maybe show the impact this has on some of these people, in that it may affect the conditional sentences being given out?

The Vice-Chair (Mr. John McKay): Mr. Yeager, I think I might have cut you off inadvertently. Do you want to respond to either the first question or the second question?

Mr. Matthew Yeager: I'm just a little confused. It's my understanding that victim impact statements, Mr. Chairman, only apply at the time of sentencing, when a judge is issuing or considering a conditional sentence. It's also my understanding that as a matter of law, not only can the written victim impact statement be entered into the record but the victim can read it to the court. So I'm at a loss as to how to respond to the question.

The Vice-Chair (Mr. John McKay): Ms. Brosseau, were you going to say that as well?

[Translation]

Me Carole Brosseau: Yes if I may, I would also like to add that we have also raised this question.

Furthermore it is also necessary to give the choice to the victim. The victim should not be forced to do it. The victim’s preference is important as in some cases the victim does not want to go to court to give an impact statement. Thus if it was mandatory for the victim to go to court it would not be in the end a very good solution.

[English]

The Vice-Chair (Mr. John McKay): Mr. Sullivan.

Mr. Steve Sullivan: I would just briefly add that there are provisions. Mr. Yeager was correct that victim impact statements are allowed. When they are introduced, they're required to be considered.

More of the problem is that victims often aren't told they have a right to make an impact statement, or maybe the crown attorney doesn't want an impact statement because it might interfere with the plea bargain, so they are discouraged from doing it. Recent research by Dr. Roberts, who was here before the committee, revealed that about 3% of cases actually see victim impact statements.

One of the recommendations we were going to put before the committee on this, because conditional sentencing is supposed to be restorative, is to make it mandatory for a judge, when he or she is considering a conditional sentence, to ask the crown attorney if the victim wishes to make an impact statement. There is a process by which judges now can ask a crown attorney at the time of sentencing if there is a statement or if the victim has been canvassed to do a statement, but it's discretionary on the judge. Realistically, a lot of judges aren't doing it.

The recommendation to the committee is that if conditional sentencing is restorative, require a judge to ask the crown attorney about an impact statement from the victim. It's up to the victim if they want to do a statement, but at least give them the knowledge that they have that right.

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Garry Breitkreuz: I think the problem is that the victims don't know what their rights are.

The Vice-Chair (Mr. John McKay): Thank you, Mr. Sullivan.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much Mr. Chairman.

Thank you for being here today and have presented to us valuable testimonies.

Mrs. Wreggitt I want to emphasize how courageous your are by being here today and sharing your testimony. Thank you very much.

Mr. Yeager I was a little surprised when you said: “look at the research”. You said that earlier. One of the issues pointed out to this committee was the lack of available statistics on conditional sentencing. On the other hand the numbers we have are not very flattering. Two people came to share with us… If I recall you are the one that told us that in Manitoba there was a breach of the conditions for 37% of the conditional sentences which is quite high.

The other person is Dr Julian Roberts of the University of Ottawa that you may know. He came this week and told that about a quarter of all conditional sentences have subsequent breach of conditions and that they lead to breach hearings. He was stating that in some cases it was not reported but that he could not give us those numbers.

If I follow your logic then when you say: “look at the research” I must conclude the numbers for conditional sentences are not very flattering.

º (1620)

[English]

Mr. Matthew Yeager: If you're making the assumption that we're not going to have breach hearings in a conditional sentence, that's certainly not my understanding of how the legislation was designed. In fact, it was designed specifically to enable crown attorneys to proceed aggressively with breach hearings because the penalty for the breach was specifically designated in advance. If you breached the sentence, you knew you were heading off to a fixed reformatory sentence. It's my understanding that since then those breach provisions have been strengthened. So you want to have a breach mechanism in place.

The problem, as I discern it, and my researcher as well, is that we don't yet have the figures as to the number of breach hearings that result in either an amended conditional sentence or a term of reformatory punishment. We don't know that yet.

If that is the case, we're going to see a higher rate of breach in conditional sentences than we would see in probation, and that is the design of the sentence. It's supposed to do that. That doesn't necessarily indict the theory of the conditional sentence.

The other issue, which we've raised considerably, is that judges, members of the community, and victims are concerned about the level of resources available to supervise and manage these kinds of sentences. What we've suggested that the committee could entertain is to allow a judge to ask their probation department or community agencies for a report on the resources that could be brought to bear on individual sentences going before the bar. That way, at least the judges would have some idea of what resources might or might not be available to supervise a particular accused.

To conclude, first, I don't see breach as necessarily indicting the theory and practice of conditional sentences. Second, I don't necessarily see a breach rate that's higher than a probation breach rate as necessarily indicting the theory and practice of conditional sentences. Finally, the very issue of breach brings up, of course, this issue of manageability. You can't continue in the Canadian system to put your resources into penitentiary and reformatory lock-ups and then indict a sentence that's designed to supervise people in the community who you have deliberately withdrawn or underfunded.

[Translation]

Mr. Richard Marceau: I don’t have a lot of time; I have to ask my questions quickly.

[English]

Ms. Elizabeth White: I'd like to make a very brief comment in reply to your question. I would not be too concerned about the number of breaches that are cited until we know what is being breached. Is it one of the optional conditions or a mandatory condition? What is the degree? Is this simply a function of over-conditioning on a conditional sentence? Research is still needed.

[Translation]

Mr. Richard Marceau: We have a significant problem. You are saying there are not enough research results to adequately determine the issues but at the same time you are making propositions for amendments such as raising the maximum sentence from two years minus one day to four years. I find this a little contradictory.

In your French version of your brief you mention on page 4 a solution that has been endorsed by several people which is the creation of specific offense exemptions. You don’t agree we should do that.

If we decide not to go as far as creating exemptions for specific crimes such as violent crimes or child abuse crimes, would you support in this case a reversal of the burden of proof for which a person convicted of a violent crime would be denied conditional sentencing unless it would be proven that the person should have access to it? This is what the provinces feel we should do as they have told us on September 10, 2001. I would like to get your opinion on this matter.

º (1625)

Me Carole Brosseau: With respect to the presumption I would refer you to Judge Lamer’s Proulx. He opposed the idea of presumption of any nature stating that since the measure was a novel innovative approach the staff tasked with carrying out these sentences had to be trained appropriately. However the staff usually came from the probation system which is very different from the conditional sentences and the staff would not know how to distinguish between the two.

This is related to what Mrs. White was saying earlier concerning optional and mandatory conditions. Given that the sentence is more severe, the officers tasked with applying it have to acquire certain knowledge.

Moreover I find that this is exhibiting a lack of confidence in the courts. Of course there will always be misuse but that is true of all systems. There has been severe malpractice cases related to the prison system. The Bastien case comes to mind where overpopulation lead to a child been killed. We have to look at probabilities of such occurrences. The judge has to evaluate the evidence and all the aggravating factors. In cases where deterrence is the primordial goal to protect society the judge has to opt for an extreme measure like incarceration.

Mr. Richard Marceau: Mrs. Brosseau--

[English]

The Vice-Chair (Mr. John McKay): Sorry, you're well over. We'll be back to you.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): To Mr. Yeager or Ms. White, in your brief there was some comment that any measure taken to limit the use of conditional sentencing may increase the risk of future offending rather than serving to protect society. We've also heard that we don't have enough information or statistics to really make definitive comments in the area of conditional sentencing. So how can you make that statement without the material to back it up?

Mr. Matthew Yeager: Mr. Maloney, that's an excellent question. Let me try to reconcile that issue for you.

On the specific question of follow-up research on conditional sentences, that's still an evolving matter. We don't have all the research questions in or a lot of research yet, but in one area we do have a lot of research. Let me talk to you briefly about that, because it provides the context for the conditional sentence, and that's the impact of imprisonment. We know specifically that imprisonment tends to produce, first of all, no specific suppression effect on crime in the community. We have no research over several countries and historically to suggest that.

Specifically on the inmates, we know that the longer we incarcerate, the worse they generally do in the community. So generally speaking, imprisonment has either no effect or a negative effect on the inmate. That's one of the reasons why we have historically... There are associations that historically talked about asking Parliament to explore other sanctions besides relying on the penitentiary or the reformatory for the long-term sentence.

That provides us with an analysis of why we suggest that the conditional sentence ought to be strengthened, in fact, because the research suggests that those static factors--those are factors we can't change in an accused's background--and those dynamic factors can lead to the most success in the community. The two most significant dynamic factors, Mr. Maloney, of course, are drug abuse and drug treatment and employment concerns among the accused. We can manage, we can certainly manipulate those characteristics so we can get a safer community.

So when we say to you there is a problem and if you eliminate the conditional sentence... Let's just hypothetically say we eliminate it and we send more people to the penitentiary and to the reformatory; the possibility is we could be releasing people into the community who are even at higher risk and who will cause us even greater problems. That's how this particular argument gets analysed, and that's why we have a lot of research on the impact of over-incarceration.

º (1630)

Mr. John Maloney: Mr. Sullivan, you've suggested for a few years that you feel we shouldn't be using conditional sentences. Is that a blanket denial, or are there varying degrees that you might consider? Or should there be a reverse onus?

Mr. Steve Sullivan: I think one of the areas we talked about in our opening statement was the presumption I think Mr. Marceau was also referring to: the presumption that if you commit these types of offences you will not get a conditional sentence. In the exceptional cases, perhaps there is some room for that. But I'd also add that in the cases are that exceptional, it doesn't necessarily mean you'll go to prison. You may get a probation sentence. But those are the areas we're concerned about.

I'm concerned about the message we send to those particular offenders, guys who believe it is their right to beat up their wives, or guys who believe that when they rape children, they like it, or guys who stalk women because they think they love them. What message do we send those people when we go to court, go through all the expense, then say it's not serious enough to go to jail? Do we reinforce in their minds that their behaviour was maybe not that serious--“No one else takes it that seriously, so why should I?” Or we give them house arrest--and we know from the recent Ontario auditor's report that probation officers in Ontario, for example, and in other provinces as well, are saying that house arrest is meaningless. We can't supervise these guys.

We have people who commit child porn offences and one of the conditions is they can't use the Internet. Well, if we can't enforce house arrest, how can we enforce those provisions? So I'm afraid of the message we're sending to these particular people. We're reinforcing in their minds that really what they're doing isn't that serious.

Mr. John Maloney: You've heard Mr. Yeager's response to my question. Do you have any comments?

Mr. Steve Sullivan: In general, I think I certainly haven't researched the area as thoroughly as Mr. Yeager, but I guess from what I've read the research is correct.

I would say that, ironically, the longest sentences--the people who serve life sentences--actually have the highest rate of success in the community when they're released. But again, we're not talking about doing away with conditional sentences and throwing everyone in jail for 20 years. We're saying that for those offenders who commit these particularly heinous serious offences, this simply shouldn't be an option unless there are those extenuating circumstances.

The Vice-Chair (Mr. John McKay): Mr. Yeager.

Mr. Matthew Yeager: I'd like to provide you with a little bit of my experience. I've been involved in a number of criminal matters as an expert before trial court on the matter of sentencing. Particularly, my area of expertise, Mr. Maloney, is in the actual area of sex offences, where I have provided expert testimony to sentencing judges on how to sentence these individuals.

One of the paradoxes of this particular field is dealing with people who've committed sexual assaults often historical in nature--that is, they are 15, 20, or 25 years old--and the accused currently before the court is really not dangerous right at this particular time, and they could be handled and managed in some kind of community-based setting, with a panoply of controls and measures against them. So this kind of illustrates one of the reasons we're opposed to having Parliament set restrictions, either presumptive or not.

I'll also point out two other issues of which I would hope parliamentarians would take note.

First, the crown has the right to appeal. Particularly in Ontario, the Ontario Court of Appeal has been fairly aggressive in reversing conditional sentences that they felt were inappropriate.

The second issue is that we already have common-law presumption. In Regina v. Wells, there is a presumption that the conditional sentence would not be used in those very, very serious violent crimes. So we already have case law that gives us a presumption. There's no real need here to carve out niches where you are prohibiting drunk drivers, domestic violence individuals, sex offenders, and aggravated assault people. There's just no basis for it right now to justify without knowing how prevalent they are in getting conditional sentences, and then having some follow-up work done in terms of how well they do in the community. You might be surprised to find that your violent offenders on conditional sentences do better than those who have committed property offences.

º (1635)

The Vice-Chair (Mr. John McKay): Thank you, Mr. Maloney.

Mr. John Maloney: Thank you very much for appearing and giving us your testimony. We very much appreciate hearing reality.

The Vice-Chair (Mr. John McKay): Mr. Cadman, you have three minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I apologize to the witnesses for having come in late, but sometimes we just can't tear ourselves away from that place across the road.

Just to come back, we've certainly heard some testimony advising against setting up a schedule of offences and doing that per se, but the possible alternative--and forgive me if this has already been answered, as I wasn't here earlier--of actually lowering the ceiling in order to address the concerns that many people have about the inappropriateness of conditional sentences for certain crimes--in other words, lowering the ceiling from the two years less a day to say 18 months or a year, to address that particular concern.... I'd like to hear any comments you might have about that. Anybody?

Ms. Elizabeth White: As just a brief comment, we did speak to this a little bit in our presentation. That is, we feel that to reduce the sentence at this point would be premature until we see more, through research, how effective it can be.

I think what we have to be mindful of is that the conditional sentence is a very serious sanction under our scheme of sentencing. It requires the finding that the offence committed is deserving of incarceration, but that the sanction can be carried out in the community. It is a serious repercussion when it is put in place.

Mr. Steve Sullivan: I really don't know. I guess because of lack of information, I'm not sure whether that would eliminate the types of individuals we're talking about, because we know a lot of child sex offenders don't even get 12 months.

So I'm not sure how to answer that question without again going back to the point that more research is necessary.

Mr. Chuck Cadman: Again I'd be interested in knowing, would there be any specific offences everybody could agree on that should not be subject to a conditional sentence? Obviously, murder is a given, but anything else?

[Translation]

Me Carole Brosseau: When a sentence is pronounced it has to take into account the offender. If you start restricting it to certain types of crimes it will create some stigmatism while some offenders might still be able to be rehabilitated.

I know that his responsibility is great but the judge has to evaluate all the evidence. The judge is constrained by the objectives laid out by the legal system and both mitigating and aggravating factors have to be taken into account for the sentencing to be appropriate. The precedents are fairly consistent. Just as Mr. Yeager was saying earlier, if the aggravating factors outweigh the mitigating factors then the courts will pronounce more severe sentences. What people seem to forget, and it should be emphasized, is that conditional sentences are not comparable to probation sentences. The difference is significant. Some people find it difficult to accept this type of sentencing since the offender has to take responsibility for his actions and repair his wrong-doings.

Therefore there is a punitive component that is a sentence of imprisonment as well as a restorative component which is closely inspired by aboriginal principles of justice that focus on reparation. The intent is to rehabilitate by asking the offender to repair wrong-doings and to give better justice to the victim in the process.

Up to this point the prison system has failed. Currently it can’t be shown statistically that the prison system has succeeded better than conditional sentencing. I even think that in some cases offenders wanted their conditions re-evaluated since they had become too difficult to endure.

º (1640)

[English]

The Vice-Chair (Mr. John McKay): Thank you, Madame Brosseau.

I'll just remind witnesses that this is a three-minute round.

Mr. Macklin.

Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much.

Thank you for appearing today.

As I reflect on what I'm hearing today, I'd like to get some feedback on the question that has been raised concerning conditional sentences becoming, it would appear, to use the vernacular, the “flavour of the month”, and that in a sense the judiciary is, shall we say, wandering away from suspended sentences, probation orders, and other types of sentencing of that nature.

First, can you comment on this? Do you see a way we ought to be in some way suggesting that if judges are doing this, we're not making it clear how these various sentences ought to be differentiated? Can you comment on what you see in this regard and what we ought to be doing?

Mr. Matthew Yeager: Mr. Macklin, I think you've hit on a wonderful issue, which the committee will want to get some more information about. Unfortunately, we don't have good research results for you at this time. We have only anecdotal information coming to us from a variety of quarters that suggests a decrease in the diversion in conditional discharges and probation orders, or the classic suspended sentence.

Obviously we're going to need some more work in that area, because that would suggest that we're widening the net. We're not taking people out of the reformatory, which is what this sentence was designed to do, and managing them in the community, but we're essentially replacing their sentence from what they would normally get, which would have been a suspended sentence. That's going to be a point for you to examine, as a parliamentarian, and ask for that research to be done, if it hasn't been done yet, or to collect it.

Mr. Paul Harold Macklin: Does anyone else wish to comment on that?

The next thing that's of interest to me is the question of too many conditions and its effect. Do you have suggestions for us as to how we might handle and address that? Again, is this a question of judicial and counsel education? What ought we to do in order to bring that forward to the attention of those who are involved in our justice system on a day-to-day basis?

Ms. Elizabeth White: I don't think it requires any legislative change, unfortunately. But as part of a report, I think it is worth highlighting that when we take optional conditions and make them a matter of course, then we obviate their effectiveness.

I think this message needs to be given regularly, both to crown attorneys who seek to have the additional conditions put on, and our judges, as a reminder that just because the crown attorney is recommending a kitchen drawerful of options, it does not mean they are all required. All of these conditions must be specific to the individual before the court. I think this can't be stressed often enough. As I've said before, this is a severe sanction with its mandatory conditions. It generaly does does not need the options attached to it.

The Vice-Chair (Mr. John McKay): Thank you, Mr. Macklin.

Monsieur Marceau.

[Translation]

Mr. Richard Marceau: Maître Brosseau, I want to make sure I understand. Are you against the change…

Me Carole Brosseau: I am against presumption. I tend to agree with Judge Lamer. I trust the courts and I think they have enough means at their disposal to evaluate each situation properly based on the individual before the court.

Mr. Marceau let me remind you that we are limiting ourselves to sentences shorter than two years less one day.

Mr. Richard Marceau: That was my understanding.

On the other hand, in your presentation I did not understand what the 26.9% referred to.

Me Carole Brosseau: It represents the percentage of conditional sentences in Canada. We have the highest percentage. However, as I indicated before, these numbers are from 1999. The latest statistics show a national increase of approximately 17% except for Ontario.

Mr. Richard Marceau: If our roles were reversed and you had to make a committee recommendation, would you ask for conditional sentencing to be unchanged citing that it is working well as is? Does that statement capture accurately the Barreau du Quebec’s position?

Me Carole Brosseau: It would indeed be premature to change it, except as I said before to widen it to deal with inconsistencies of minimum sentences. We were always opposed to all types of minimum sentences. You will see that we are inclined to keep the same leitmotiv. However these measures are still new.

The precedents were established in 2000. We can see that still today the concepts derived from precedents established by the Supreme Court have not been fully integrated by the other jurisdictions.

Changing the interpretation seems premature at this point. It would constitute an evolution to sentencing. In my opinion eliminating this measure would take away a valuable option.

Mr. Richard Marceau: Do I still have some time?

º (1645)

[English]

The Vice-Chair (Mr. John McKay): You have eleven seconds left.

Mr. Richard Marceau: I'll come back next time.

The Vice-Chair (Mr. John McKay): Mr. Macklin.

Mr. Paul Harold Macklin: I just want to pursue where I was a few moments ago. Some of the evidence we have and testimony before us indicated that when there is a breach and someone is brought back before the court on a conditional sentence, the habit is to add more conditions—if they choose not to give them the 14 days. So it sounds like if your theory is right that more conditions create greater problems, then really where the court goes with this is inappropriate. Could you give us some thoughts on this issue?

Ms. Elizabeth White: I think I would draw a distinction about the number of conditions at the outset over a lengthy period of time. We know the more conditions you have over a long period of time, the greater the chance of breach, particularly if the conditions are not appropriate or specific to the individual. When an individual is brought back on a breach charge, it may often be that the judge will feel that a tweaking here or there of those conditions, or perhaps an increase in the human contacts involved in the sentence, will assist the convicted person to carry on successfully to the conclusion of their sentence.

So I would draw a distinction between someone who has shown a failure to be able to comply with their conditions, and therefore needs to have the items adjusted, and someone who is coming before the court at the beginning sentencing and is given an overload of conditions, which are impossible to be completely compliant with for many, many months.

Mr. Paul Harold Macklin: Another statement was made earlier by Madame Brosseau concerning the issue of or making a linkage between those with medical health problems and recidivism. You didn't particularly like the only alternative being a 14-day sentence. Were you suggesting, or are you prepared to suggest, that there ought to be some alternative measure the court might impose, other than going strictly for an imprisonment position?

[Translation]

Me Carole Brosseau: I want to explain my previous comments.

I talked about the 14 days because it is for a minimum sentence. All minimum sentences are excluded from section 742 on conditional sentences. Thus there are none. Maybe I did not understand your question properly but for people with medical conditions there are avenues to get an order that enables them to get treatment.

While orders should be granted with the individual’s consent, if a conditional sentence is an option, the individual will probably prefer that option even without necessarily giving consent. There are many programs available. The issue is always to find the appropriate resources. These programs must be created by the provinces and must be made available. The problem is that while they exist in large urban centres these programs usually are not available in regional settings. Therefore we are faced with the problem of fragmentation of services.

I am going to talk about incarceration of sentences up to 2 years less one day and talk about individuals incarcerated.

Please note that in Quebec only 10% of individuals in provincial prisons have a sentence that is longer than six months. These individuals receive no support. They have no services when they are incarcerated. And since only a small proportion end up in a penitentiary they do not have access to any support programs. They are on their own. With conditions the individuals become more involved because they are made accountable and responsible for their acts towards society.

º (1650)

[English]

The Vice-Chair (Mr. John McKay): Thank you, Mr. Macklin.

Ms. Wreggitt, we sometimes get caught up with professionals and experts. Is there anything you wish to add to this conversation?

Ms. Michelle Meredith Wreggit: Sure. Not being a professional, forgive me if I'm misunderstanding what I'm hearing.

I understand that lowering the conditions of a conditional sentence, or lowering the requirements of the offender, would enhance conditional sentencing. In other words, it would make it look better to the public. That's what it seems to me.

Forgive the analogy, but I work at Milhaven, and to me, it's much the same as saying that being disrespectful to an officer is no longer an offence; therefore, it's okay, and it no longer goes on this individual's record. I just think it's a way of making conditional sentencing look better--if there are fewer restrictions and fewer breaches, then it's more successful.

That's just my opinion and how I see this argument.

The Vice-Chair (Mr. John McKay): That's what we're here for. Thank you.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I was going to go along that line of yours, in getting a perspective from the witnesses or the victim's perspective.

In some earlier testimony we heard about the crown attorneys not necessarily pursuing breaches if the breaches were actually committed toward the end of a sentence. It was essentially viewed as a waste of time or not worth proceeding if it was only two months from the end of a two-year sentence. We were hearing that crown attorneys were not doing this, or judges were not taking it seriously.

From the victim's perspective, I wonder how you would react to that, Mr. Sullivan or Ms. Wreggitt.

Mr. Steve Sullivan: I would just echo what Ms. Wreggitt said. The appearance would be that you lower the conditions and you make it easier. But also, if it becomes too much of a hassle to go to court and breach somebody... I think it's important that if someone breaches the conditions the court has set down, there is a record of this somewhere. So we then know in the future that if this person comes back, he doesn't respect court orders. That's important information to have. If he comes back in the future, this is going to be relevant to his treatment and how we manage this person.

I don't know if you're going to continue hearing witnesses, but I encourage the committee to hear from actual probation officers. They have a tremendous perspective on this. Certainly the discussion in the auditor's report in Ontario is that they're not able to supervise these people very well, because their caseloads are too high. This is relevant to the discussion about conditional sentences, especially when you're talking about people who commit really serious offences.

Ms. Michelle Meredith Wreggit: Could I add something?

The Vice-Chair (Mr. John McKay): Absolutely.

Ms. Michelle Meredith Wreggitt: I keep hearing today how punitive this measure is, that conditional sentencing is quite punitive, it's very serious, it's very restrictive. As someone who's experienced and seen this, I don't see the restriction. Maybe it's just my community. I'm not sure. This individual was out watching movies, at the malls, going out for any reasons he wished to. There wasn't supervision. As I said, the probation officer stood before the court saying we didn't have the resources in our community to monitor this individual, yet he was still put in conditional sentencing.

Mr. Chuck Cadman: Thank you.

The Vice-Chair (Mr. John McKay): Thank you, Mr. Cadman.

Mr. Macklin, again.

º (1655)

Mr. Paul Harold Macklin: Let me follow up on one other issue that was raised here. And I'd like to get some clarification on it.

Madam Wreggitt indicated that there was a condition concerning, in this case, the driving of an automobile that was removed by the judge, but the victim was never informed. Is this an issue we ought to be considering--that is, whether victims should be informed in the event there have been changes in the conditions that were originally given on a conditional sentence?

Mr. Steve Sullivan: Better information for victims all around is a good thing, but when it comes to conditional sentences there's often really even less understanding among victims. I think this committee should consider that victims should get a copy of the judge's reasons for the conditional sentence, a copy of the conditions, and then, as Ms. Wreggitt pointed out, if there are changes in those conditions the victims who want to be notified should have that opportunity as well. So I think the more information we can give victims about conditional sentences, the better it will be for them in understanding the process.

Mr. Paul Harold Macklin: Anyone else?

Ms. Elizabeth White: I think I would nuance that by saying that at the original time of sentencing a victim should have the right to make it known on the court record that they would like to be advised of any further changes that happen to the sentence.

Mr. Paul Harold Macklin: Secondly.... Sorry.

[Translation]

Me Carole Brosseau: In the case of parole the victims can be informed. Therefore it would be consistent with legal principles to permit it for conditional sentences. I agree with Mrs. White, it would respect the principles of the law because it is done for parole. It can be viewed to a certain degree as similar to parole.

[English]

Mr. Paul Harold Macklin: Can I have another one?

The Vice-Chair (Mr. John McKay): Yes, you still have time.

Mr. Paul Harold Macklin: With respect to rehabilitation, one of the things that comes to mind is that when someone is incarcerated, if there are rehabilitative resources available within the institution, one has immediate access to them. A lot of the people we're dealing with here are from a lower economic structure, and therefore if they're placed within their homes, going out for rehabilitative consultation and so forth may be a rather difficult situation for them to comply with.

Do you have any suggestions or thoughts about how rehabilitation should operate or function within the conditional sentencing structure?

Ms. Elizabeth White: Under the current circumstances, where the sentences are no more than two years less a day, treatment opportunities in provincial reformatories tend to be extraordinarily limited and access to them is nigh unto impossible for most prisoners, particularly with the short lengths of stay that Madam Brosseau has mentioned, and which are even shorter in other parts of the country. The average stay is about 70 days, I believe, in Ontario.

On top of this, there is considerable evidence-based research at this point that indicates that treatment in a community setting is more effective than treatment in an incarceral setting, for the fairly simple reason that one is not practising in a reformatory or prison setting a normal set of living skills. It's a very abnormal setting, and the skills are better learned when you are in the community setting in which you will be expected to apply them after sentence expiry.

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Steve Sullivan: I'd like to add a very brief comment on that, Mr. Chair.

The recent auditor's report in Ontario said that of the 3,000 sex offenders currently being supervised in the community, about 600 were receiving the appropriate treatment.

[Translation]

Le vice-président (M. John McKay): Mr. Marceau you have three minutes.

Mr. Richard Marceau: Thank you Mrs. White. One of the recurring issues is the lack of resources to properly follow up on people who are granted conditional sentences. Yet your proposal to increase the ceiling from 2 years less one day to 4 years would lead to more offenders getting conditional sentences.

First, don’t you think we will lack resources even more than before if we do that? If so, how many people or how much additional money would be needed to supervise adequately all these individuals? I am referring back to the comments made by the Association des services de rehabilitation du Quebec concerning the lack of resources. It seems to be the general feeling.

With this increase in the ceiling would we not further complicate the resource problem and how would we then gain the public’s support for conditional sentencing? It’s an issue that you raised as well. You said that the public supports what he understands. It will be harder to gain that confidence if we lack even more resources.

» (1700)

[English]

Ms. Elizabeth White: Thank you.

If the bar were raised to the four-year suggested level, then you would have fewer people in prison. We might even be able to close some prisons. This would free up a great deal of resources, which could be properly applied to the community.

As to a specific dollar amount, I'm afraid, Mr. Marceau, I'm not able to supply you with that today. That would be beyond my knowledge. I'm sure, however, that some quick research could find out what that would be.

The confidence of the public, we have said from the outset in our comments, is a very important issue as far as conditional sentences go. Whether they would be more easily sold at the four-year level than at the two-year level, I can't answer that. But I can say that whenever we look at the public's perceptions of sentencing, we know that the more information the public is given, the more supportive they are of a broad range of sentencing interventions and that when presented with all the facts they tend to seek what may be considered less incarceral options for sentencing.

As a result, I am confident in the Canadian public, when it is fully informed and aware of how sanctions are operated, being supportive of those kinds of sanctions that will result in a safer country in the end, in a more rehabilitated offender.

The Vice-Chair (Mr. John McKay): Mr. Cadman.

Mr. Chuck Cadman: Yes, very quickly.

I believe, Ms. White, on the issue of victims receiving information, you mentioned that it should be requested at the time of sentencing if they want to receive that information. We've run into this issue before. Mr. Breitkreuz alluded to it earlier, and I certainly know we ran up against it in the new Youth Criminal Justice Act.

Should there be a statutory requirement that somebody actually tell the victims that they have that kind of right to get that information? It's fine and dandy to say they have the right, but if nobody tells them they have it, how are they supposed to know?

I'd like comments from everybody on that one.

Ms. Elizabeth White: I think I would place an obligation on crowns to make that information known to victims. I'm not a fan of over-legislation, so I don't want to comment on whether I think a legislative amendment is necessary for that. I think crowns with proper training should be advising victims of their rights.

Mr. Chuck Cadman: I would agree, but how do we ensure that happens?That's my point.

[Translation]

Me Carole Brosseau: With regards to your question I am ready to say that I agree in principle. However the communication between the crown’s prosecutors and the victims is done via specialized support victims’ organizations that often lack proper resources. In many cases they are non-profit organizations that receive grants and subsidies but are unable to give extensive support to victims at all steps of the process.

Even if the principle is valid I believe that by making legislative changes that can’t be applied practically we will further undermine the judicial process. Moreover the public’s negative perception will contribute further to increase the frustration towards the judicial system.

I think we must be realistic and look for the best ways to involve the victims. Such a principle is recurrent. We must not forget that this is a shared jurisdiction. The application of sentences is under the provinces’ jurisdiction; therefore it is important in this case to get their approval to obtain budgets to help prosecutors.

I will preach the Barreau du Quebec’s viewpoint. Recently, prosecutors in Quebec went on strike because they felt overburdened. Adding a mandatory task to their responsibilities, and I want to be clear, that might pose ethical concerns and lead to grave consequences, seems to me a bit exaggerated given the resources that we have at our disposal.

However I think that supporting the principle and engaging in federal-provincial discussions might prove more fruitful. We would among other things avoid creating a negative perception of the judicial system by the public.

» (1705)

[English]

The Vice-Chair (Mr. John McKay): Thank you.

Mr. Sullivan, last word.

Mr. Steve Sullivan: Sure, briefly.

It's always interesting to me how we all seem to agree that victims deserve more rights in the system but we don't actually give them rights because we don't want to burden anybody. It's okay for us to demand more resources for offenders in the community and that kind of thing. I think it's time we started demanding more resources for victims, and if crowns are overburdened, then we need more crowns.

Can you imagine if we said to an accused person that you have to remain silent but we might not tell you that you have that right? We might forget to tell you, or we might be too busy to tell you you have that right. It wouldn't stand in this country because it shouldn't stand. If we're going to tell victims they have a right to do an impact statement, or a right to receive information, it should be written down somewhere that it is their right and there are consequences if you don't get it.

Whether it's going to be done in this context or not, one of the recommendations we made was that when judges are considering conditional sentences, they be required to ask the crown if victims have had the chance to do an impact statement. It would not be discretionary; they would be required to ask the crown that question.

Unfortunately, change has come, but it's been slow and there needs to be more of it. I think sometimes we need to give the people in the system a little more of a boot and make it a requirement, not just say that if we have time we'll do it.

The Vice-Chair (Mr. John McKay): And, Ms. Wreggitt, do you want to have a final word?

Ms. Michelle Meredith Wreggit: Sure.

I didn't ask for support in my case. I asked for information and I didn't get that information. So if I can be the one example, then I'm sure there are plenty more out there. Victims aren't getting the information. And it wasn't for lack of asking.

The Vice-Chair (Mr. John McKay): Thank you.

On behalf of the committee, I'd like to thank the witnesses for their contribution to this study. It's an important study and your thoughts are very useful to us.

I'd like to take the opportunity to wish the witnesses and the members a merry Christmas and happy new year.

This meeting is adjourned.