BRIEF TO THE

STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS,
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

HOUSE OF COMMONS
39^th Parliament, 1^st Session

On Amendments to the Criminal Code of Canada
(minimum penalties for offences involving firearms)

Bill C-10

Background of Canadian Criminal Justice Association

The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-10, an Act to Amend the Criminal Code of Canada (minimum penalties for offences involving firearms).

The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.

Mr. Chairman and members of the Committee, our Association applauds the initiative of this government in putting forward a proposal designed to deal with the problem of gun crime. However, with respect, our Association has some grave reservations concerning Bill C-10. We will outline them briefly and we look forward to your questions and comments:

Mandatory minimums and consecutive sentences do not deter crime

Despite their rhetorical and political appeal, every found empirical study indicates that longer periods of incarceration, or the threat thereof, do not deter crime and in particular do not deter gun crime. Indeed, rather than acting as a deterrent, lengthier periods of incarceration may actually increase the likelihood of recidivism among offenders. Numerous Canadian studies, including those previously commissioned by Parliament, support these findings:

• “In 2002, the federal government released a review of 111 studies on the effects of criminal justice sanctions on more than 442,000 offenders. It found that harsher punishments had no deterrent effect on repeat offences. In fact, it suggested that punishment caused a 3% increase in recidivism among all groups of offenders.”¹
   
• “Society has spent millions of dollars over the years to create and maintain the proven failure of prisons. Incarceration has failed in its two essential purposes - correcting the offender and providing permanent protection to society. The recidivist rate of up to 80 percent is evidence of both.”²
   
• "All domestic and international sentencing scholars, as well as commissions of inquiry in Canada, have decried the existence of mandatory minimum sentences of imprisonment".³
   
• "All studies on the subject indicate a lack of any significant correlation between harsher sentences and crime reduction".⁴
   
• "The Canadian Sentencing Commission gave up on specific deterrence. It acknowledged that the claim that punishment is effective in reducing the tendency to re-offend is undermined by rates of recidivism, the apparent 'undeterrability' of certain groups of offenders, and the 'acknowledged fact' that most prison inmates have been convicted on prior occasions".⁵

Literature and studies specific to the application of mandatory minimums to gun crimes have also resulted in identical conclusions. As one author put it, "one of the more popular strategies developed during the past decade to reduce firearm violence is a bust. It has no impact. It does not work"⁶. Indeed, this Conservative government has recognized the deterrent failure of the current mandatory minimum scheme for gun crimes. The lack of a deterrent effect is the primary reason given as to why Bill C-10 has been brought forward.

This recognized deterrence failure is also not limited to the Canadian experience. Mandatory minimum gun sentencing schemes in other countries have likewise had no discernible deterrent effect.

• A Massachusetts study looked into the deterrent effect of a one year mandatory minimum sentence for possession of an unregistered firearm had "no deterrent effect on the use of firearms in violent crimes"⁷;
• An evaluation of a mandatory sentencing law for firearms offences in Michigan concluded that "the mandatory sentencing law did not have a preventative effect on crime"⁸;
• A Florida study concluded that "the results did not support a preventative effect model"⁹;
• A Pennsylvania study held that mandatory minimum sentences for gun crimes "do not challenge the conclusion that the statutes have no preventative effect"¹⁰;
• An Australian study found that "there is 'compelling evidence' that the [mandatory minimum sentencing] laws did not achieve a deterrent effect. What is more interesting, however, is the fact that the Australian governments responsible for these mandatory minima have effectively conceded that mandatory sentences have no deterrent effect"¹¹.

Why does the threat of harsh punishment through the use of sentencing mechanisms such as mandatory minimums fail to deter would be offenders? The answer is relatively straightforward. Offenders simply do not consider the length of sentence when deciding whether or not to commit an offense. Rather, their concern lies with whether or not they will be caught and punished for the offense. That is why, in the ultimate irony, we see that American "states with the highest murder rates are the same ones that invoke the death penalty most frequently"¹². Accordingly, mechanisms that promote severity of punishment as the ultimate sentencing rationale will fail to yield tangible deterrent affects. Bill C-10 is no exception.

Increased Incapacitation of serious offenders will have no affect on the crime rate

Simply put, increasing the level of incapacitation has had no effect on reducing the crime rate in society. Just because offenders are in prison does not mean that offences stop occurring. To use an extreme illustrative example, the United States currently has over two million people in its prisons with the highest rate of incarceration in the world¹³. Yet, the U.S. also has one of the highest violent crime rates in the world. With respect to gun offences, Americans are involved in over 11,000 gun homicide deaths annually¹⁴. Clearly, incapacitation, even at this staggering level has had no effect on crime reduction.

Although Canadian rates of incarceration are generally smaller, they also have had no effect on the crime rate. Indeed, "a report of the National Crime Prevention Council of Canada in 1997 noted that Canada has always had a high incarceration rate compared to other Western nations... [and] that Canada imprisons a number of offenders who could be dealt with in the community"¹⁵. In this regard, "recent research has demonstrated the futility, rather then the utility, of incapacitative sentences"¹⁶.

Bill C-10 is contradictory to previous sentencing legislation including the Purpose and Principles of Sentencing (as legislated by the federal government in s. 718 of the Criminal Code of Canada in 1995)

In 1995, Parliament enacted section 718 of the Criminal Code in response to numerous studies and commissions on sentencing, and as a means of ensuring public safety. In doing so, they also sought to increase the effectiveness of sentencing as a deterrent and rehabilitative mechanism. Section 718 limited the use of incarceration as a sentencing tool, but still provided the option to judges when the particular offense before them warranted a carceral period.

More specifically, section 718.2(d) of the Criminal Code states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstance”, and section 718.2(e) of the Criminal Code similarly states that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders”.

Bill C-10, is in direct contradiction to both of these Criminal Code provisions. It proposes lengthier, punitive sentences which would not have otherwise been administered under the current sentencing regime. Accordingly, rather than simplifying and reinforcing well intentioned provisions, Bill C-10 adds a paradoxical complexity, further complicating an already elaborate sentencing process.

Bill C-10 significantly limits Crown and Judicial Discretion

In addition to this Criminal Code contradiction, the passage of Bill C-10 and its mandatory minimum provisions, also unduly limits judicial discretionary power to sentence offenders according to the particular circumstances of the case in front of them. Judicial discretion is a hallmark of the Canadian criminal justice system. No person is in a better position to consider the myriad of factors necessary to reach the appropriate sanction then that of the sentencing judge. In fact, she is the one who is put in this exact position to do so. She has heard all of the admissible evidence, and she is the person with the requisite experience to come to the appropriate conclusion. That is precisely why she has been appointed.

Accordingly, Parliament has chosen to codify judicial discretion under section 718.3 of the Criminal Code, further demonstrating its importance within the criminal justice system. The Supreme Court of Canada too, has recognized the crucial role of subjective judicial discretion, particularly in relation to sentencing, and "has endorsed the view that this subjectivity is to be celebrated rather than challenged"¹⁷. In R. v. Shropshire¹⁸ Justice Iacobucci articulated that "the formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses"¹⁹.

In R. v. M (C.A.)²⁰ Chief Justice Lamer expanded on this ideology stating that "Parliament intended to vest trial judges with a wide ambit of authority to impose a sentence which is 'just and appropriate' under the circumstances and which adequately advances the core sentencing objectives of deterrence, denunciation, rehabilitation and the protection of society"²¹. He later summarized the courts position thusly:

We must also be aware of the reality that the Criminal Code already places many restrictions on judicial discretion. As one commentator noted, "various rules and principles shape the choice of sentencing options and the degree to which the chosen options are used. Sure rules and principles limit and influence a judge's discretion. What appears to be unfettered discretion may in fact be quite circumscribed"²³.

Yet, despite the importance placed on judicial discretion by both Parliament and the Supreme Court, by definition, a bill that mandates prescribed minimum penalties for certain offences significantly limits this core principle. As noted Canadian professor Julian Roberts suggests, "a mandatory sentence prevents judges from modulating the severity of the sentence to reflect the seriousness of the offence and the degree of blameworthiness of the offender. This is why the Canadian Sentencing Commission recommended the abolition of all mandatory sentences of imprisonment, with the exception of the sentence for murder"²⁴.

Also of note, is that Crown Attorney discretion may be similarly limited by the introduction of mandatory minimum sentences, often resulting in lesser sentences. In an effort to secure a conviction, a Crown may be pushed into accepting a plea of guilt to a lesser crime because of a mandatory minimum sentencing scheme. Accuseds who would have otherwise pled guilty to severe gun crimes, may now be dissuaded by the certainty of a fixed carceral period. This has a two pronged effect. Either the Crown accepts a guilty plea to a lesser crime leading to a shorter jail sentence; or cases that would normally have been pled out go to trial, adding a further burden to our already severely backlogged criminal justice system. As one American study on mandatory minimums for gun crimes found, "the courts have been deluged by criminal trials and appeals, in large part because harsh penalties have increased defendants' incentives to go to trial rather than plead guilty"²⁵.

Negative repercussions of Bill C-10 on the Criminal Justice System

The current crisis of overcrowding of provincial prisons is not a new phenomenon. Indeed, "successive Ministers of Justice have acknowledged that we imprison too many people in Canada. In 1987, the Canadian Sentencing Commission identified this as one of the most serious problems in the sentencing system"²⁶.

The consequence of this practice has led to a multitude of deleterious effects both to the criminal justice system and society at large. These include:

• Overcrowding impairs the release planning and reintegration efforts of offenders and contributes to recidivism.
• Overcrowding soaks up vast quantities of resources (human and financial) to "warehouse" inmates, with negative rather than positive impacts.
• Overcrowding diverts resources from treatment and programs for those who might benefit from them.
• Overcrowding increases stress and potential danger for both staff and inmates.
• Overcrowding contributes to programming backlogs which, in turn, delay the timely release of offenders.
• Overcrowding cripples the ability of the system to deliver programs and treatment in a timely and appropriate manner.
• Overcrowding leads to double-bunking, an inhumane practice that infringes upon the basic, constitutionally protected right of human dignity of staff, inmates, and volunteers alike.
• A study by the John Howard Society, found that prison overcrowding creates a number of social ills including "competition for limited resources, aggression, higher rates of illness, increased likelihood of recidivism and higher suicide rates"²⁷.

It is also noteworthy that prison overcrowding has led to other systemic consequences. For example, judges routinely hand out 2 for 1 and sometimes 3 for 1 credit for pre-trial custody, due in large part to provincial prison overcrowding. In this sense, the greater the prison population, the greater the likelihood of reduced time in prison.

What then is the source of this crisis? The problem of overcrowding of prisons is directly correlated to Canada’s incarceration rate, and the corresponding inability to expand correctional facilities at a rate of growth equal to the rate of the rising prison population. There is no doubt that this problem will only worsen with the enactment of Bill C-10 and its call for longer carceral sentences. Indeed, in numerous policy statements the Conservative government has acknowledged that if their policies are implemented the prison population will grow exponentially.

Mandatory minimum and/or consecutive sentences of 5, 10, or 15 years ensure that more persons will be incarcerated for longer periods, increasing pressure on already over-extended Corrections Canada. This will lead to more double-bunking in prisons, increased danger for staff and inmates, higher suicide rates, and less effective rehabilitative programs. Also, the additional expenditure required to expand the prison system, will likely detract from valuable alternative justice programs that are proven to be more effective rehabilitative tools than incarceration.

The implication of such measures is also an extremely expensive proposition. Most institutions are currently filled to capacity. If already implemented, the current Conservative proposal would need to house 6,000 additional inmates²⁸. Even if one used the so called "no frills" approach to building jails, (such as the super-jail built in Lindsey which houses 1,100 inmates and costs by conservative estimates "only" 79 million dollars) the cost of building the prisons alone would exceed 400 million dollars²⁹.

This, however, is not the entire cost. In addition to the increased demand on Corrections Canada to expand bunk space, the cost of housing inmates for up to 15 years longer than they otherwise would have been incarcerated will be enormous. It currently costs Corrections Canada $110,223 to keep a male inmate in a maximum security institution for a year ($150,867 for a female inmate) and more than $70,000 to house them in medium and minimum institutions³⁰. Columnist Dan Gardner of the Ottawa Citizen analyzed the total numbers for the implementation of the complete Conservative crime policy (including other carceral approaches such as the policy of "earned parole"). Based on his rough analysis, the total operating cost over ten years would be 11.535 billion dollars³¹.

Bill C-10 then, provides an ineffective, and fiscally irresponsible solution to the issue of gun control in Canada, which will add to rather than detract from criminal justice difficulties. This effect is particularly noteworthy in light of the billion dollars that has already been spent on another ineffective gun control measure, the gun registry.

Canadian Crime Rate

Our association believes that this Bill has been put forward in large part as a response to recent publicized incidents of gun crimes in major urban centres. The Boxing Day shooting death of fifteen year old Jane Creba was indeed tragic, and the outrage that followed was justifiable. This does not, however, automatically necessitate a complete overhaul of the entire criminal justice system. We, as a society, must appropriately investigate and respond to this horrific tragedy, but must do so in a manner commensurate with established principles of good governance and sound decision making.

Accordingly, we must look at the available data and respond accordingly. What does the data tell us? Crime and particularly violent crime is in a continued decline. Police reported 2.6 million offences in 2004, a crime rate that was 12% lower than a decade ago. Approximately 300,000 violent crimes were reported in 2004 which indicates a 10% decrease in violent crime in Canada over the last decade. Crime, youth crime and violent crime are also minimally down from last year³². It has been 10 years since the enactment of section 718 of the Criminal Code, and since the judiciary started implementing the Purpose and Principles of Sentencing in their sentencing decisions; the crime rate and the violent crime rate have both decreased over that period.

The CCJA is not suggesting that the system is flawless, or that changes need not be made. However, on the heels of progressive measures such as conditional sentencing and the Youth Criminal Justice Act, we appear to be moving in the right direction.

Conclusion

Bill C-10 is not the answer to gun crime concerns that exist in Canada today. A more punitive sentencing regime with increased incarceration of offenders is in direct conflict with the progress that has already been made.

The CCJA recognizes the public's desire to punish violent offenders, particularly those who utilize firearms in the commission of their offence. The Government of Canada, however, cannot allow its legislative policies to be dictated by emotional responses of the media and the general public to highly publicized gun related offences. The judiciary must be allowed to continue utilizing their discretionary power under section 718 to punish and incarcerate offenders who are deemed dangerous, and to apply more lenient sentences where circumstances are appropriate. Sentences should be based on individual contextual factors relating to each offence, rather than legislated minimums that result in ineffective, expensive, and unduly harsh periods of incarceration.

For all of these reasons, the CCJA does not support the proposed Bill and urges this committee to reject it in it's entirety. However well intentioned, Bill C-10 moves away from the progress that has already been made towards combating crime in this country and will simultaneously inflict an enormous financial burden on its citizens. Should the Committee feel that there is additional reason for more study on the impact of the proposed legislation, our Association would be happy to perform such a study, at the Committee’s request. Thank you for your time and concern.

¹ Taken from Department of Justice Canada website (: “Myths and realities about Youth Justice”; originally reported at: Smith P., Goggin. C. and Gendreau, P. (2002). The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences. (User Report 2001-2002). Ottawa: Solicitor General Canada.

² Sentencing Reform, A Canadian Approach, Report of the Canadian Sentencing Commission, p.43, quoting from the MacGuigan Sub-Committee. There are numerous other studies that cite this statistic. There are a number of variables to consider including, type of offence, type of offender, and jurisdiction. While it is difficult to be precise, the recidivism rate in Canada, by all accounts, ranges from 40-80%.

³ Roberts, Julian "Mandatory Minimum Sentences of Imprisonment: Exploring the Consequences for the Sentencing Process" (2001) 39 Osgoode Hall Law Journal at 306.

⁴ Dumont, Helene "Disarming Canadians, and Arming Them with Tolerance: Banning Firearms and Minimum Sentences to Control Violent Crime. An Essay on an Apparent Contradiction" (2001) 39 Osgoode Hall Law Journal at 349.

⁵ Paciocco, David Getting Away with Murder: The Canadian Criminal Justice System (Irwin Law: Toronto, 1999) at 28.

⁶ Ludwig, Jens; Cook, Philip (Eds.) Evaluating Gun Policy: Effects on Crime and Violence ( Washington: Brookings Institution Press, 2003) at 280.

⁷ Tonry, Michael Sentencing Matters (New York: Oxford University Press, 1996) at 139-140.

⁸ Ibid at 140.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Doob, Anthony N.; Carla Cesaroni "The Political Attractiveness of Mandatory Minimum Sentences" (2001) 39 Osgoode Hall Law Journal at 295.

¹² supra note 5 at 30.

¹³ See American Federal Bureau of Prisons website - http://www.bop.gov/

¹⁴ See American Federal Bureau of Investigation website - http://www.fbi.gov/ucr/01cius.htm

¹⁵ Roberts, Julian; Cole, David (Eds.) Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) at 143.

¹⁶ supra note 5 at 32.

¹⁷ supra note 15 at 351-352.

¹⁸ R. v. Shropshire, [1995] 4 S.C.R. 227.

¹⁹ Ibid at para 46.

²⁰ R. v. M. ( C.A.) (1996), 46 C.R. (4th) 269 (S.C.C.).

²¹ Ibid at para. 56.

²² Ibid at para. 91.

²³ supra note 15 at 121.

²⁴ Roberts, Julian "Mandatory Minimum Sentences of Imprisonment: Exploring the Consequences for the Sentencing Process" (2001) 39 Osgoode Hall Law Journal at 314.

²⁵ Brinkley, Lawrence (Ed.) Mandatory Minimum Sentencing Overview and Background ( New York: Novinka Books, 2003) at 9.

²⁶ supra note 15 at 356.

²⁷ http://www.johnhoward.ab.ca/PUB/C42.htm

²⁸ Ibid.

²⁹ Ibid.

³⁰ CBC's "Reality Check" - http://www.cbc.ca/canadavotes/realitycheck/crimetime.html

³¹ http://www.dangardner.ca/Coljan606.html

³² All statistics in this section taken from Juristat : Crime Statistics in Canada, 2004 , Vol. 25, no. 5.