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Restricting Judicial Discretion

The sanctioning of criminal behaviour in Canada has always been carried out in a balanced, impartial and rational way by competent judges examining the facts of each case against the intent of the Criminal Code and jurisprudence. We are not aware of any substantive evidence that calls into question the competence or independence of the Canadian judiciary. Yet, many provisions inserted into the criminal law over the past ten years have removed or limited the ability of judges to tailor sanctions so as to best meet the purpose, objectives and principles of sentencing, taking into account the criminal activity, the offender and his ability to return to the community as a law abiding citizen.

  1. In Bill C-10 (41st Parliament, 1st Session), amendments to the sentencing and general principles of the Youth Criminal Justice Act added denunciation, deterrence, harsher sentencing and the naming of violent youth after sentencing, notwithstanding that the existing legislation was considered to be working extremely well since it came into force in April, 2003. Rather than focusing on deterrence, we suggest enhancement to the capacity to deliver adequate mental health assessments and treatments for young offenders and a renewed focus on effective rehabilitation and reintegration, as called for in the principles set out in that Act.
  2. In the same Bill, a number of mandatory minimum sentences were enacted within the Controlled Drugs and Substances Act. Mandatory minimum sentences (MMS) are contradictory to sentencing principles such as proportionality and restraint, and impair judicial discretion. In our view, such measures are also costly and ineffective. We propose their repeal or, if that is not possible, at least the enactment of a clause that would allow judges to sentence outside of the mandatory minimum in cases presenting exceptional circumstances, recorded in reasoned decisions by the presiding judge.
  3. The same legislation enacted increased mandatory minimum penalties for certain sexual offences with respect to children. While we abhor any crime against a child and strongly support any measures to protect our youth, this can best be done by judges deciding individual cases, rather than Criminal Code fiat. We do continue to support the child luring legislation – Section 172.1(1) as these technical revisions are necessary to ensure that all forms of media are covered by the law and that the law remains enforceable.
  4. The conditional sentence provisions of the Criminal Code have been amended twice in the last 10 years (2007, c. 12 and 2012, c. 1) to narrow the availability of this sentencing option — an option that the Library of Parliament credited with reducing the over-use of incarceration when it was first enacted. In its present form post Bill C-10, the conditional sentence option is no longer available for many indictable offences (e.g., all offences where the maximum penalty is 14 years and enumerated offences with a 10 year maximum), and even some with a 10 year maximum where no serious personal injury was caused. For example, a conditional sentence is not available in cases of theft over $5000 and auto theft.

    It has long been argued that the use of statutory maxima is “an unreliable guide to the relative seriousness of offences, and cannot incorporate the proportionality requirement of an offender’s culpability.”[1] Further, in a sentencing system that expressly recognizes the principle of restraint in the use of incarceration and implores sentencing judges to consider all reasonable alternatives to imprisonment, withdrawing the option of a conditional sentence, by which a sentence of imprisonment can be served in the community under strict supervision, makes little sense. We urge the Minister of Justice to restore the availability and usefulness of this sentencing option.
  5. Over the last decade, the majority of criminal law amendment bills have either enacted new MMS or increased existing ones, or both. Bill C-2 (39th Parliament, 2nd Session, firearms, impaired driving, etc.) and Bill C-10, referenced above, (drugs, sexual offences against children, etc.) are just two examples[2]. This course of action was pursued in the absence of any evidence to support the efficacy of MMS from a denunciation or deterrence perspective and in the face of codified principles of sentencing, such as proportionality and restraint, with which MMS are clearly inconsistent. As stated above, the CCJA proposes the repeal of all MSS or, if that is not possible, at least the enactment of a clause that would allow judges to disregard MMS in exceptional circumstances.

    MMS are increasingly becoming the subject of constitutional scrutiny under sections 7 and 11 of the Charter (see, for example, R v. Nur[3] which declared unconstitutional, some of the firearms MMS). In addition, from a purely practical perspective, MMS lead to longer carceral sentences, exacerbating the overcrowding of prisons and the corresponding inability to expand correctional facilities at a rate of growth equal to the rate of the rising prison population. The same can be said with respect to the mandatory consecutive sentencing provisions added to the Criminal Code in legislation like Bill C-26[4]. This will inevitably 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 alternative justice programs, which have been proven to be more effective rehabilitative tools than incarceration. For these and other reasons, mandatory sentencing provisions will greatly increase the costs of the criminal justice system, inflicting an enormous financial burden on Canadian citizens, without a corresponding benefit.
  6. Bill C-2 (39th Parliament, 2nd Session, now S.C. 2008, c. 6) provided as well for more restrictive provisions with respect to dangerous and high-risk offenders[5]. It broadened the application of the dangerous offender legislation by extending the list of “designated offence” to such broad offence categories as assault, assaulting a peace officer, breaking and entering and the inclusion of repealed offence categories including ‘sexual intercourse with a female between the ages of fourteen and sixteen”, significantly increasing the number of offences and persons possibly subject to a finding of dangerousness. Further, it created a presumption that the conditions for a dangerous offender (DO) designation are met by the fact of three convictions for ‘primary designated offences’ with sentences imposed (or for the third conviction, where it would be appropriate to impose a sentence) of two years or more. The onus is then placed on the defendant to prove, on a balance of probabilities, that despite his convictions he is not in fact dangerous.

    In addition, the word ‘may’ throughout the legislation was replaced by ‘shall’, indicating that, upon the presentation of relevant (and sufficient) evidence, the judge has no choice but to consider a dangerous offender hearing, to remand the defendant for assessment and/or to declare the defendant a dangerous offender. In practice, judicial discretion will still be exercised in determining that the evidence is sufficient to warrant a hearing. However, if a hearing is warranted, the fact of three existing convictions for primary designated offences and two prior sentences of 2 years or more puts the judge in a position where his discretion to decline a dangerous offender designation is removed.  The only discretion that remains for the judge is the ability to determine that the current offence does not warrant a 2 year sentence, thereby failing to meet the presumptive conditions for a DO designation. In view of the growing complexity of the dangerous and long-term offender provisions and the aforementioned limits on judicial discretion, the CCJA suggests that it is time to review Part XXIV of the Criminal Code with a view to a developing a more coherent and balanced mechanism to control predicted future dangerousness.

Changes to the Post-Sentencing Regime

A number of measures were taken that were contrary to good criminological theory and practice, and whose sole purpose was to further punish offenders, thereby making their reintegration much more difficult. In a number of cases, the law was amended as a result of a single event highlighted by the media, without considering the impact on hundreds and thousands of other individuals or the long-term safety of the public.

  1. Bill C-39, (40th Parliament, 3rd session), eliminated Accelerated Parole Review (APR) and required all subsequent parole applications to be subject to National Parole Board hearings, as it was prior to 1992. While the application of the APR provisions created some anomalies in the past, the legislation brought in with the Corrections and Conditional Release Act of 1992, worked essentially well, reduced the workload for the Parole Board and reduced the number of first time federal offenders incarcerated. Amendments to increase Parole Board oversight and the removal of eligibility for a smaller class of offenders would have been far preferable to the wholesale elimination of these provisions, which greatly increased the costs of incarceration.
  2. Bill C-31, (40th Parliament, 3rd session), amended the Old Age Security Act in order to eliminate old age pension benefits for those serving sentences in federal penitentiaries, as well as terms of imprisonment of 90 days or more in provincial-territorial prisons in jurisdictions that enter into agreements to enforce the amendments. This legislative change was brought in essentially to punish one notorious offender, Clifford Olson, but in fact impacts all federal offenders and their families. It is in the interests of safe communities for offenders to be able to maintain their family connections during incarceration and to be able to reintegrate into the community upon release without having to worry about the basic needs for survival.
  3. Bill C-316 (41st Parliament, 1st session), amended the Employment Insurance Act so that the Act’s provisions that previously allowed qualifying periods and benefit periods to be extended as the result of time spent by the claimant in a jail, penitentiary or other similar institution, will now only apply if the claimant is not found guilty of the offence for which he or she was being held or any other offence arising out of the same transaction. In other words, the amendment essentially cancelled any employment insurance an offender could receive upon release. Not only is it unfair for someone who has paid into employment insurance to be refused needed benefits upon release, in essence, the offender is also being punished twice.
  4. Bill C-5 (40th Parliament, 3rd session) died on the Order Paper, but its proposed amendments to the International Transfer of Offenders Act were included and passed into law as part of Bill C-10 (41st Parliament, 1st Session, see above), including the addition of “to enhance public safety” as one of its stated purposes. The many changes made therein to the International Transfer of Offenders Act critically altered the intent of the original legislation, eroding the foundation of well-researched and consistent decision making, and instead, prioritizing “the Minister’s opinion” in transfer decisions.
  5. Bill C-23, (40th and 41st Parliaments), amended the Criminal Records Act which allowed ex-offenders the opportunity to have their criminal records sealed after a set period of crime-free life in the community. The evidence showed that this Act had a success rate of over 90% over the course of many decades and allowed ex-offenders to remove the stigma of their past while seeking and retaining gainful employment. The Act changed the term “pardon” to “record suspension” which may be a more accurate description of the effect however, it also substantially lengthened the waiting periods for both summary conviction and indictable offences committed in the past and excluded a large number of offences from ever being eligible for “record suspension”, as well as bringing in a “three strikes” exclusion.

    Additionally, prior to this legislation, the fee charged by the Parole Board of Canada for processing applications was increased substantially and then again to a level several times the original $75 (now $631) so as to make the mere application for a “record suspension” essentially unaffordable.
  6. In 2011, Bill C-48, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, (40th Parliament, 3rd Session), was enacted to provide consecutive periods of parole ineligibility at the discretion of the presiding judge. We have already had a case under this legislation of an individual having been sentenced for the murder of three men now being ineligible for parole for 75 years. The precedent set by this legislation brings us closer to American style justice where upwards of 40,000 individuals are now serving sentences of life without parole. The costs of these sentences entail an enormous waste of resources, not to mention mankind.
  7. Bill C 479, An Act to amend the Corrections and Conditional Release Act (fairness for victims) (41st Parliament, 2nd session), changed the existing two-year hearing requirement following a denial of an offender’s first application for parole to a five-year review for any Schedule I offender, that is one who has committed a violent offense. This same principle also applies to any parolee serving a Schedule I offense whose conditional release is terminated or revoked. Their next parole hearing will be four years after the date of revocation and a full five years on subsequent reviews of their case by the Parole Board of Canada. While not minimizing the impacts of violent offenders, it should be left to the Parole Board and the Correctional Service to judge subsequent risk to the community at the most appropriate time, rather than rely on arbitrary time frames.

The “Faint Hope Clause”

More than four decades ago, Canada abolished capital punishment for those convicted of murder under the Criminal Code and replaced it with a life sentence and lengthy periods of parole ineligibility, a “faint hope” clause that provided for earlier parole eligibility subject to judicial review and the recommendation of a jury, and eventual supervised release if so granted after a full review by the Parole Board. Over the course of many years a relatively small number of convicted murderers have been released after periods of 15, 20, 25 and more years of incarceration. To the best of our knowledge, none have recommitted murder and most have led completely crime-free lives in their elder years. There was no evidence-based indication that this legislation needed to be amended.

However in 2011, Bill S-6, An Act to amend the Criminal Code and another Act (40th Parliament, 3rd Session), repealed the faint hope clause for offences committed after the coming into force of Bill S-6. In addition, for those offenders who committed their offences prior to the coming into force of Bill S-6 and hence were still eligible for a review under the faint hope clause, the Bill imposed several new restrictions such as time limits for bringing an application, extending the waiting period for making a subsequent application where the first application is unsuccessful, and imposing a higher screening test at the judicial screening stage. Under the new law, unsuccessful applicants for judicial review will be able to apply only twice: once when they become eligible after serving 15 years of their sentence and once more at the 20-year mark.

In our view, these amendments undermine the opportunity for structured release of those lifers who no longer represent an undue risk to the community and would benefit from release. Furthermore, they undermine the purpose and objectives of sentencing as laid out in s. 718 of the Criminal Code, as the changes seek to take away the opportunity for rehabilitation and reintegration for these offenders, long after the objectives of denunciation, incapacitation and deterrence have been met.

Victims Legislation

The Criminal Code has for some time provided the opportunity for victims to make impact statements to the courts. These statements are to focus on the harm done to victims, their losses, and the long-term impact the offence has had on their lives. Further, the role of victims in federal corrections was enshrined in the Corrections and Conditional Release Act of 1992, giving them access to parole hearings and information regarding the correctional progress of their assailants. More recently however[6], legislative attempts have been made to equate victims’ rights with those of the accused and the offender.

The proposed Canadian Victims Bill of Rights (now S.C. 2015, c. 13, s. 2) with its “rights” terminology, perpetuates the false premise that victims involved with the criminal justice system are embroiled in an ongoing struggle with accused persons and offenders that pits victims’ “rights” against the “rights” of accused and offenders. This “conflict of rights” paradigm leaves victims feeling that they have lost out and that their rights have been trampled. Considering that fair trial rights and other Charter rights of accused and offenders are enshrined in the Constitution, if there is such a competition, the so-called victims’ rights, being found only in statute, will always be subordinated to constitutional rights. Enacting legislation that purports to create over-arching victims rights can only lead to a sense of frustration and betrayal on the part of victims.

Subsequent legislation, part of Bill C-479 (41st Parliament 2nd Session), requires that victims’ opinions as to release shall be considered, including the submission of any audio or video recording, in addition to live testimony or a written statement. We are concerned that these requirements inappropriately replay the dynamics of the original sentencing hearing.

As an alternative to a focus on “rights”, the Canadian Criminal Justice Association proposes the creation of a Canadian Charter of Victims Services  to outline and establish essential services for victims, including counselling, support, education and information, and realistic restitution and compensation. CCJA is in favour of court imposed restitution orders, where practicable. We also strongly support victim-offender mediation as part of addressing the harm suffered by victims and strengthening offender accountability, rehabilitation and reintegration.

Victims should have access to all appropriate services, including expertise in trauma reduction. We believe as part of our proposed Charter, the Government should seek a federal-provincial-territorial agreement on national minimum standards of services for victims and facilitate the development of creative approaches to delivering these services.

Prostitution Legislation

Bill C-36, Protection of Communities and Exploited Persons Act (41st Parliament, 2nd Session), was legislated as a response to the December 2013 Supreme Court decision in Attorney General of Canada v. Bedford. It attempts to create a new legal framing for prostitution in Canada. It is modelled on the Swedish Sex Purchase Act of 1999 that criminalizes the purchase, but not the sale of sex and the criminalization of third parties profiting from the industry. While it is intended to protect sex workers from exploitation and encourage them to leave prostitution, it will reproduce and exacerbate many of the harms identified in the Bedford decision. It will not affect a measurable reduction in the prevalence of prostitution, and will certainly not achieve its goal of abolishing the sex industry. Continued harm to sex workers will result.

The CCJA recommends that the government engage in meaningful consultation with those who will be most affected by this legislation – people currently engaged in sex work. Serious consideration might be given to legislative models that have been found to improve the health and safety of sex workers – for example, New Zealand’s decriminalized model. This approach is less expensive, requiring less enforcement, and enables law enforcement to focus on reducing real harms to women and children who are victims of trafficking, violence, or abuse – all crimes which already exist in our criminal code. In a decriminalized milieu, individuals who are in the sex industry voluntarily, or because they find themselves with limited options, can be provided with support to improve their working conditions, health, and safety, and can be afforded the protection of the law.

Responding to Bill C-51

While the CCJA claims no special expertise in national security matters, we do have longstanding expertise in the fields of criminal and correctional law and human rights. We are aware of the controversy surrounding Bill C-51 (41st Parliament, 2nd Session) and firmly believe that the legislation raises very significant constitutional questions. Perhaps the most grievous example of this, is the new power given to CSIS to obtain a warrant from a federal court judge, in camera and ex parte, that on its face contravenes rights and/or freedoms protected by our Canadian Charter of Rights and Freedoms.

Additionally, the same legislation expands police powers in a manner that lessens standards for, widens availability of, and lengthens duration of preventive arrests. Preventive arrests undermine due process and fairness of criminal proceedings in a manner that will increasingly subject innocent individuals to detention[7] for an extended term[8]. Language in Bill C-51 significantly reduces protection of citizens’ rights and onus of proof. The goal must be to prevent terrorist acts, not to target groups of people based on beliefs and discourse. We understand the gravity of combatting terrorism, but must question the efficacy of this legislation, as well as its impact on the rights of citizens and integrity of the law.

During the last election, the Liberal Party announced its intention, if elected, to “… repeal the problematic elements of Bill C-51, and introduce new legislation that better balances our collective security with our rights and freedoms.” We strongly urge Ministers to deal with this matter as a priority, early on in the Government’s current mandate.

Correctional Programming

The purpose of the criminal justice system is to contribute to the maintenance of a just, peaceful and safe society[9] While denunciation, deterrence and incapacitation play a role in the protection of communities, punishment can only go so far as an effective tool in assuring community safety. Since by far the majority of those punished by incarceration will eventually be freed, ultimately, only rehabilitation can ensure the safety of the public. In order to assist in the rehabilitation of offenders, effective correctional programming must be in place and supported with adequate resources. We are thus dismayed by the number of effective correctional activities that have been reduced or cut over the last decade.

  1. One of the most pragmatic and effective programs to reduce the risks of recidivism by some of the most dangerous offenders was Circles of Support and Accountability (COSA). COSA is a community based reintegration programme that assists people, considered to be at high risk to re-offend sexually, in their effort to re-enter society after incarceration.

    COSA was founded in Canada and is now operating in many countries. Offenders who have spent years incarcerated for sexual offences are typically feared and shunned by their communities. Yet, upon release, usually at the expiry of their completed sentences, these offenders are subject to no further supervision and have little or no support. COSA offers such needed support and supervision however, they must agree to lead a positive, crime-free life before being accepted into COSA. They are then supported by professional staff and community volunteers. Three to five screened and trained volunteers are assigned to one offender and that constitutes the Circle of Support – to enable the offender to cope with his problem and become a responsible citizen. Research had indicated that re-offending rates for male participants are 80% lower than for those without a Circle. COSA-Ottawa was awarded the 2013 Community Volunteer Program Award by Crime Prevention Ottawa. And yet, inexplicably, funding for this program was cut, while measures were implemented to increase incarceration.
  2. Another unique community program, Life Line, involved successfully paroled lifers, with a minimum of five years in the community, returning to institutions to serve as mentors and motivators for inmate lifers and eventually assist them to gain and succeed on parole for the rest of their lives. Life Line had three basic components: In-Reach, Development of Community Resources and Raising Public Awareness.

    The In-Reach Programme provided for ex-offenders to return to institutions to serve as motivators, models and mentors. Development of Community Resources ensured that lifer parolees were assisted to learn to function in a vastly changed world. Life Line workers were a source of great support. Each worker was sponsored and supervised by a voluntary agency, such as St. Leonard’s or the John Howard Society. The third component, Raising Public Awareness allowed the workers to address community groups, the media and legislative committees to share their experiences and suggestions for humane and effective correctional programmes. Despite having all government funding cut, a much reduced programme persists in the Ontario Region, supported by funding from St. Leonards’ agencies in the Region. At one time, every lifer in Canada had access to a Life Line worker and the programme was recognized nationally and internationally by awards from the International Corrections and Prison Association, the American Correctional Association, and the Canadian Criminal Justice Association. Life Line was one of the programs that helped identify Canada as being in the forefront of progressive corrections.
  3. The Chaplaincy programme may not demonstrate empirical results, however, it does provide hope and support for many offenders who may have very limited community or family supports. Again, this programme was significantly reduced.

In addition, we should note that CSC has developed and delivered a menu of diverse correctional programmes for sex offenders, substance abusers, violent offenders and others. These programmes have been recognized internationally as effective measures to bring about behavioural change and indeed have been implemented in many countries. While we do not have access to the latest data, we can only recommend that these programmes form the basis for continued emphasis on rehabilitation of offenders.

If our goal is indeed public safety, we need to invest strategically in programmes that can lead to the eventual rehabilitation of those who commit crimes against society, rather than never-ending expenditures whose sole goal is punishment. We are conscious that we live in an era where the funding ability of governments is severely stressed. Let us invest, then, in those correctional measures that research has shown to be effective in reducing recidivism and contributing to a just, peaceful and safe society.

[1] Julian Roberts “Reforming Conditional Sentencing: Evaluating Recent Legislative Proposals” (2006) CLQ 18 at p. 21.

[2] Also see Bill C-26, the Tougher Penalties for Child Predators Act, 41st Parliament, 2nd Session.

[3] R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773

[4] Now, S.C. 2015, c. 23

[5] We note that the dangerous and long-term offender provisions have been amended three times since Bill C-2 (see S.C. 2010, c. 3, s. 8; 2012, c. 1, s. 35; and 2014, c. 25, s. 29) primarily to extend the scope of the definitions (exclusions) in these provisions.

[6] See Bill C-32 (41st Parliament, 2nd Session), the Victims Bill of Rights Act

[7] United Kingdom study from 2012 found that from a sample of 1500 preventive arrests, only 34% have been charged with an offence.

[8] Detention extended to 7 days.

[9] The Criminal Law in Canadian Society, Government of Canada, August 1982

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