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Criminal Code - Bill to Amend—Third Reading

Hon. Serge Joyal: Honourable senators, I cannot resist the invitation of Senator Baker to share some reflections on one aspect of the bill that my honourable colleague Senator Wallace did not mention in his report and general comments on the bill. Section 8 of the bill amends section 244.2 of the Criminal Code and introduces additional mandatory minimum sentences of four years for the first offence and seven years for the second offence, up to a maximum of fourteen years. Senator Baker has raised the issue of what I would call inappropriateness of mandatory minimum sentences in the specific context of the use of BB guns or pellet guns.

There is no doubt in my mind that if such a case came to a court, the defence lawyer would certainly argue section 12 of the Charter, which is cruel and unusual punishment, because the judge would have no choice other than to impose the mandatory minimum four years.

I should take some time to reflect upon that concept of minimum mandatory sentencing because we will see it come back. We saw it in 1995, those of us who were on the committee, or in the other place, or observing the trends of Parliament. We saw it in 1995 when Parliament was preoccupied with that approach to criminal law.

I want to raise that because the imposition of mandatory minimum sentences seems to be an easy way to try to fight organized crime. In other words, clean the streets; put them all in prison and everyone will be happy and secure and sleep well at night. However, is the concept of mandatory minimum sentencing effective? Is it really cleaning the streets?

I was struck when the Minister of Justice appeared last week before the committee and repeated 13 times, "We have to send the right message. We have to send the right message." It was almost an incantation. You appeal for the message, and then the reality realizes itself.

I was, in a way, puzzled by that because as you know, fighting organized crime is not an easy issue. All the studies that have been made available to us, either through the Department of Justice or through the criminologists who have studied the nature and the impact of mandatory minimum sentences, have not concluded "effectiveness" in "cleaning the streets."


I want to read two of those studies. One was done by the Department of Justice. It was conducted by prominent criminologist Julian V. Roberts from the Centre for Criminology, University of Oxford. This is not a person without credentials in terms of studying minimum mandatory sentences either here or in the Commonwealth countries. His study is entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models.

Dr. Roberts studied minimum sentences in most of the Commonwealth countries with which we share legal tradition in criminal law. I would like to from quote his conclusion on page 35, which states:

This report has demonstrated that while mandatory sentences of imprisonment proved popular in the 1990s across a number of common law jurisdictions, closer examination of the laws reveals that many countries allow courts the discretion to sentence below the minimum when exceptional circumstances exist.

I underline "when exceptional circumstances exist." I continue:

This usually means that courts are permitted to consider mitigating factors relating to the offence or the offender, in some cases, as long as the judge provides written reasons for doing so. In addition, while the general public appears to favour the use of mandatory sentences for offenders convicted of the most serious offences and repeat offenders, there are important limits on public support for strict mandatory sentencing laws. When the public is provided with more information regarding the law and the circumstances surrounding the offence and the offender, the tendency is not to favour punitive sanctions such as mandatory minimum sentences.

This study was commissioned by the Department of Justice and is available on their website.

Honourable senators, I want to draw your attention to another study, this time by the Research and Statistics Division of the Department of Justice, commissioned by Professor Thomas Gabor, Department of Criminology, Ottawa University; and Nicole Crutcher, from Carleton University. What do they conclude from their study? I will quote from page 32, which states:

There is a conspicuous absence of Canadian research on MMS, given the number of infractions carrying such penalties and the number of private members' bills, in the last two years, seeking to introduce MMS. Especially noteworthy is the lack of any systematic evaluation of the ten, four-year MMS for certain offences involving a firearm introduced with the enactment of Bill C-68 in 1995. Also noteworthy is the absence of evaluations of mandatory sentencing provisions relating to impaired driving. . . .

The level of public awareness of these penalties also must be ascertained, as such awareness is a precondition of deterrent and denunciatory effects. . . .

People do not know that it has no deterrent effect. That is essentially what it states. I continue:

Deterrence will therefore be more in evidence in relation to those offences usually committed by more casual or opportunistic offenders. . . . From a utilitarian point of view, incarcerating occasional, non-violent offenders, for substantial periods, constitutes a colossal waste of justice system resources.

Those are the academic conclusions or non-conclusions on the effectiveness of mandatory minimum sentencing. There are other aspects to it, however. One is its impact on criminal procedure as such. I tried to raise this question with the minister, asking him what impact this bill would have on the plea bargaining techniques that Crown attorneys use when they are faced with a list of criminal allegations and criminal offences and they have to negotiate with a defence lawyer about which one they might want to bargain for, about which one the accused will agree to and about which one they will not accept.

Honourable senators, one of our witnesses last week was a lawyer by the name of Mr. Michael Spratt, CLA Designate of the Criminal Lawyers' Association. What did he say to a regarding the impact of the presence of mandatory minimum sentencing when the Crown attorney has to deal with the defence lawyer to decide on which aspect the allegation will move to trial? I want to quote from his testimony where he said:

I believe that minimum sentences do two things, neither of which is particularly advantageous: The first is that they remove discretion from the hands of judges and put it in the hands of prosecutors, who have the discretion to withdraw some charges and proceed on others. As a result, there is a great incentive for an accused who is facing a charge that carries a mandatory minimum to bargain with the Crown to avoid a trial or adjudication of the charge and plead guilty to an included offence. That is problematic because it is a misplacement of discretion. A judge should have that discretion. If we are worried about the exercise of discretion, a member of the judiciary who is accountable to appellate review is a safe place to put that discretion.

That is the first weakness in terms of criminal procedure.

Mr. Spratt outlined a second weakness. He stated:

Conversely mandatory minimum sentences may also result in more charges making their way to trial. If one is faced with a charge which carries a mandatory minimum sentence, especially if your criminal conduct is towards the lower end of the spectrum, there is no incentive to plea bargain because you know what sentence you will get. There is actually an incentive to proceed to trial, because after trial, if convicted, you will not face any more than the mandatory minimum because your conduct is on the lower end of the spectrum. Therefore, we have this plea bargaining problem as well as a potential backlog in the courts through charges that could have been resolved earlier but simply are not, because of the mandatory minimum sentence.

Honourable senators, there are many aspects to the mandatory minimum sentence that need to be reviewed before we continue to put that in the Criminal Code. I repeat: This seems to be popular because it is a simple quick fix: "Let us put them in prison; let us clean the streets and everyone will be safer."

Honourable senators, we had the opportunity to hear from two other witnesses from the RCMP. Mr. Todd Shean represents the Canadian Association of Chiefs of Police and is the Director General for the RCMP's Drugs and Organized Crime Branch. He is someone with a real background in fighting criminal organizations.

What did Mr. Sean state? He said the following:

Police services are constantly being challenged to adjust to the following two contrasting trends in today's criminal world: increasing violence between gangs and increasing infiltration into the legal economy by organized crime.

In other words, there is increased violence among gangs and there is also infiltration into the normal economy of our society.

He continued by stating:

These high-level actors in organized crime are becoming more strategic.

They are trying to pass themselves off as businessmen and investors in addition to learning more about how to protect themselves following each major investigation.

. . . we believe that our economies and free enterprise must be protected against increasing attempts by the higher echelons of traditional organized crime to enter the market place as economic actors, but according to the rules of the criminal underworld. These senior organized crime figures operate by intimidating rivals, taking over contract awards and acquiring monopolies.

He continues:

The challenge is to find legislative tools and methods to curb this phenomenon, which requires large amounts of police resources over very long periods, sometimes with mixed results.

. . . we need to discourage support for organized crime by facilitators, such as certain lawyers, notaries, accountants, tax professionals, real estate brokers and foreign exchange dealers, who have been corrupted by members of organized crime or who fail to report law-breaking. Second, we need to encourage partnerships between the various law enforcement and regulatory organizations in sharing information.


In other words, honourable senators, there is no quick fix to organized crime. We can pile into the code a maximum of mandatory minimum sentences and we will be no more effective in fighting the second invasion of the economy, the legal profession, the accountants, the tax expert, the notaries, the lawyers and the judicial process.

I also draw to your attention that by approving this bill, our committee raised important issues, and when we vote on this bill, we should not content ourselves that we have solved the problem. The problem is much more systemic. In fact, by resorting to mandatory minimum sentences, we might add more problems than we solve.