C-10 Hearings 2012 02 08- Lawyers Assoc.

C-10 Hearings – 2012 02 08

We had a record 7 occupiers visiting today from UUFO, Global Justice, and Transforming Communities.  The first panel was lawyer groups representing prosectors and defence lawyers in English and French Canada and First Nations, one specializing in youth justice.

(Canadian Bar Association, Le Barreau, and Keneora, Ontario for NW Ontario.)

Daniel MacRury and Gaylenne Schellenberg spoke for the CBA (Canadian Bar Assoc.)  They asked for a special Gladue –style exemption for the mentally ill as well as for aboriginal people and drug courts across Canada. (Section 7:18 2E that requires (according to the Supreme Court decision R. vs Gladue) consideration for Aboriginal people of their situation, circumstances, and culture before sentencing.)  Their concerns were for more proportional sentencing under unique circumstances plus the problems in the justice system if they are inundated with new cases going to court.  They predicted more cases would be dropped because they had taken too long to go to trial and there would be no justice at all.  “Bill C-10 represents a profound shift from individual sentencing to punishment and revenge.”

Le Barreau (Nicole Giuseppe Battista and Dominique Trahan) was concerned about the nature of the omnibus bill and the speed of passing without due discussion of diverse needs and views.  Adding 42 new situations with mandatory minimums is a symbolic act to satisfy revenge when there is no evidence yet of the effect of the mandatory minimums introduced five years ago. 

In this new system, the police will have discretion whether or not to investigate.  The prosecutors will have discretion whether or not to prosecute.  But the judges will have their discretion removed – whether or not to divert or incarcerate.  Their only choice will be minimum sentence or higher.  Are we saying we don’t trust the discretion of our judges?  In this context, Gwendolyn Landolt, (VP of the Drug Prevention Network of Canada) (hearings Feb 15) suggests that the judges of this generation don’t consider cannabis use to be a serious thing and send a message it is a minor offense.  She considers this attitude an ideology and a very mistaken one.

The Kenora lawyer (Peter Kirby, Kenora Lawyer’s Sentencing Group) talked about the vast size of the territory, the isolated small communities.  In Tikitchcong?? NW of Red Lake they have the highest rate of teen suicide.  400 kids are not in school and gas sniffing is chronic.  They have court 3-4 times a month.  C-10 may be designed for repeat offenders but there is nothing in the bill that restricts to second offenders.  First time offenders will be caught in this too-broad net.  There will be no incentive to plead guilty in order to earn a conditional sentence.  In the North, the victims of sex offenders, particularly children, are reluctant to come forward.  The guilty plea affirms the beliefs of the victim.  Admitting guilt is the first step to change and rehabilitation.  It provides hope for healing.  Mr. Kirby is worried the trend toward Restorative Justice will be slowed and these programs not allowed to achieve their full potential.  (85% of cases end in plea bargains under current system.)  Later there was an extensive discussion on the need to provide many preventive services and healing services right in aboriginal communities.

Senator Runciman expressed a concern that there may not be enough healthy resources in some of these communities to properly supervise a conditional sentence.

CBA explained that we don’t sentence the offense.  We sentence the offender.  C-10 changes that to sentencing for the offence no matter what the particular situation, person, and conditions.  An assault can be a slap in the face or a full beating.  We already have the tools to put serious criminals away.  People distributing child pornography have been getting jail time already for years.

Senator Jaffer makes the point that we are dealing with poor disadvantaged people.  That is who is in the system.  We need to invest in poverty reduction and prevention if we are ever going to deal with these problems. 

The labeling of people as criminal or victim fixes the moment of crime.  Most criminals were victims first.  We have a recycling process of victim-making. 

Senator Boisvenu asks why 77% of people in Quebec and most victims want harsher sentences?  Le Barreau answers that when people hear of the crime they want a harsh sentence.  When they learn of the particular circumstances they often think the sentence was too harsh.  Knowledge is important.

There was an extensive  discussion on what victims need.  Minimum sentences from one point of view provide a sure consequence for the action.  For the victim, justice is seen to be done.  From the other point of view, these sentences may give temporary satisfaction but don’t meet the victim’s real needs – for services, for counseling, and for a real role in the process besides being a witness in court.

The arguments go back and forth:

·      This bill is doing something for victims.  This bill will not meet the needs of victims.

·      This bill is dealing with serious crime.  This bill will catch first offenders and will put people in jail for non-violent offences.

·      This bill will deter more crime.  There is no evidence mand. Mins. Deter crime.

·      This bill addresses serious drug and sex offences.  This is no silver bullet.  The solutions to our societal problems are in prevention services and community involvement.

·      This bill strengthens the system.  This bill will cause the system to go into chaos and delays and more cases will be dropped.

·      The feds have to put more resources to police and courts to pay for this bill.  The provinces have already received increases.  The court system needs to find efficiencies.

Panel two:  William Trudell from Canadian Council of Criminal Defence Lawyers and Jamie Chaffe from the Canadian Association of Crown Counsel

The prosecutors and government lawyers focused on the resources required to implement C-10.  We heard about how systems across the country are already on the brink.  An already overworked and dysfunctional court system.  “An overloaded justice system will impact directly and negatively on public safety.”  Cases will be dropped or there will be more wrongful convictions.  The justice system is not as big but should have the same importance as health and education.  Core funding.  Tied dollars.

We should see the impact on the court system within 9 months.

Recommended a Gladue-type exemption for mental health concerns.  We have to stop putting the mentally ill in jail and divert to more suitable treatment.  Bill C-10 makes no mention of mental health.  Mental Health courts like drug courts.  The Senate has an opportunity to do Canadians a great service by recommending to establish this.  Strong appeal.

Senator Fraser asks, if cases will be dropped what is the triage system?  Which cases will be dropped.  Answer – serious multi-million dollar fraud cases won’t get the attention if there are murders and sexual assault cases to deal with.  If there is no front-end case management, then it goes to the crown to choose.  It will be a less humane system.

Mental illness does not mean incompetence.  We are not talking about getting off because of mental illness.  Fetal alcoholism, depression, homelessness, addictions all cause a certain amount of dysfunction but these people can pass a competence test.  They cannot control their situation and may end up in jail.  They need social and health supports, counseling, assisted living, etc. to stay out of jail.

Senator Runciman asks if we need a Royal Commission on our justice system.

It comes down to this question:  Where do we spend our money – before or after?  In prevention?  Or in enforcement, justice and incarceration?

We have to get out of silo thinking and develop a comprehensive strategy.  The Federal Government, the Provinces and territories, Education, Health and Social Services all need to be at the table.

Senator Wallace asked how you determine who has a mental health issue and who is having a bad day?  Answer – this is what a judge does.  He gets the facts about the person.  Soldier-PTSD; fetal alcohol syndrome.  He interviews witnesses and makes assessment.

Senator Jaffer pointed out that a properly funded legal aid system would promote safer streets and communities.  There is no level playing field from province to province.  We have an increasing number of unrepresented accused.