Hon. Pierre J. Dalphond: Honourable senators, I rise to share my perspective on the amendment proposed by our respected colleague, Senator Boisvenu.

My remarks will centre on the following points: first, some background on sentences to be served in the community; second, the purpose of Bill C-5 in that regard; and third, the scope of Senator Boisvenu’s proposed amendment.

Some of my remarks are inspired by the most recent Supreme Court of Canada decision, which was handed down on Friday, November 4, in R. v. Sharma, a case that was referred to by the Minister of Justice and Senator Gold, as well as numerous witnesses, during the committee’s consideration of Bill C-5.

I will use Professor Cotter’s three-step approach. First I will provide a little history.

When the first Criminal Code was adopted in 1892, Parliament set out hanging, imprisonment, and fines and forfeiture as possible penalties. The death penalty was abolished in 1968. We have also seen the emergence of other types of sentences, such as conditional release, also known as a probation order, and conditional sentences, which are sentences served in the community.

Conditional sentences were introduced as part of a 1995 bill entitled An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof. This bill significantly reformed sentencing law by stating the purposes and the principles of sentencing, and by setting out considerations for judges when determining a fit sentence.

In other words, the bill substantially structured the discretion of Canadian judges with regard to sentencing. Nowadays, there are many provisions that start at section 718 and following in the Criminal Code that really structure, if not limit, the discretion of judges.

Among the various principles enunciated, the one relevant to our consideration of the proposed amendment is found at section 718.2(e) of the Criminal Code. That provision states that all available sanctions other than imprisonment must be considered where reasonable in the circumstances and consistent with the harm done to the victims or the community.

Under the 1995 bill, offenders were not eligible for conditional sentences if: one, the offence was punishable by a minimum term of imprisonment — what we call a mandatory minimum penalty, or MMP; two, the court was considering imposing a term of imprisonment of two years or more; three, imposing a conditional sentence would endanger the safety of the victim or of the community; or four, a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing. These are the four types of exclusions that make a conditional sentence unavailable.

The principal objectives of Parliament in enacting this new legislation in 1995 were, thus, to reduce the use of sentences of imprisonment in cases that were admissible and to address both punitive and rehabilitative objectives as stated by the Supreme Court of Canada in Proulx, a judgment rendered in January 2000, which is the most famous judgment on conditional sentences.

In 2007, Parliament adopted a government bill to exclude the possibility for a judge to impose a conditional sentence for those convicted of a serious personal injury offence, a terrorist offence or a criminal organization offence prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more. In other words, even if there was no MMP applicable for these offences and the sentencing judge held the view that a sentence of less than two years would be appropriate, this was not possible. Imprisonment was the only way.

In 2012, Parliament adopted another bill called the Safe Streets and Communities Act for the purpose of excluding the possibility of conditional sentences for a long list of additional offences. First, this list included all the offences prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or life. Second, this list included categories of offences prosecuted by way of indictment for which the maximum term of imprisonment was 10 years that: one, resulted in bodily harm; two, involved the import, export, trafficking or production of drugs; or three, involved the use of a weapon. These categories of offences are found at paragraph (e) of the current section 742.1 of the Criminal Code. Third, there are 11 specific offences prosecuted by way of indictment: prison breach; criminal harassment; sexual assault; kidnapping; trafficking in persons — material benefit; abduction of person under 14; motor vehicle theft; theft over $5,000; breaking and entering a place other than a dwelling-house; being unlawfully in a dwelling-house; and arson for fraudulent purpose. These 11 specific offences are found at paragraph (f) of current section 742.1 of the code.

Bill C-5 proposes to delete paragraphs (e) and (f). This means broadening judicial discretion in sentencing in connection with offences described a few seconds ago, including all offences related to drugs under the Controlled Drugs and Substances Act, many of which were declared unconstitutional.

This means that a conditional sentence will again become an available sanction in relation to these categories of offences and specific offences should the judge conclude that, first, an offender deserves a sentence of imprisonment of less than two years — these are not the most serious offences. Second, the offender presents no risk to the community or to the victim. And third, such a conditional sentence would be in accordance with all the sentencing principles including consideration of all available sanctions other than imprisonment where it is reasonable in the circumstances, especially in the case of Indigenous offenders which requires the application of the Gladue principles.

The current government has made a policy decision, and this is perfectly valid. In the recent judgment in Sharma, which Senator Batters referred to, the Supreme Court of Canada said:

Parliament has the exclusive authority to legislate in matters of sentencing policy. There is no constitutional right to any particular sentence, including a conditional sentence . . . . Parliament had no positive obligation to create the conditional sentence regime. This Court stated in Proulx that Parliament could “have easily excluded specific offences” from the conditional sentencing regime when it came into force in 1996 . . . . It chose to do so later, and may choose to do so in the future. That is inherent in the role of Parliament, informed by experience and by the wishes of the electorate.

Senator Boisvenu disagrees with the broadening of judicial discretion proposed by Bill C-5 in connection with sentencing, and proposes to revert to the 2012 policies of the Harper government, which Senator Batters referred to.

The senator is proposing, in keeping with the 2012 legislation, to exclude any possibility of conditional sentences for a list that includes nine specific offences, which would become the new paragraph (e) of section 748.2 of the Criminal Code. I want to point out that this list is shorter than the 2012 list, because the senator is proposing to drop the following offences: prison breach; motor vehicle theft; theft over $5,000; breaking and entering a place other than a dwelling-house; and arson for fraudulent purpose.

In doing so, he is dropping four types of offences described in 2012 as being serious property crimes that justified excluding conditional sentences. I note this change.

As he stated in response to one of my questions, he chose to focus on offences against the person. That is why there are two new offences on the proposed list that were not found in the 2012 legislation: causing bodily harm by criminal negligence, and assaulting a peace officer with a weapon or causing bodily harm. I want to point out that in my research, I found very few legal decisions for either of these offences. They do not seem to be used. I would add that I did not hear one witness or read one brief that suggested adding these offences to the list of cases where the use of conditional sentencing would be prohibited.

In his speech leading up to the proposed amendment, Senator Boisvenu repeatedly referred to violence against individuals, especially women and children, to justify the other items on his list. For example, he said it was completely unacceptable for a man convicted of intimate partner violence to serve his sentence in the community.

I agree with him in the case of a repeat offender, and I believe that, in such cases, judges will not even consider a sentence of less than two years. I should add that a conditional sentence is possible only if the judge believes this type of sentence poses no threat to the victim or the community. Unfortunately, Senator Batters did not mention these prerequisites for a conditional sentence in her speech.

Also, in Quebec, judges can require offenders serving a conditional sentence to wear an electronic monitoring bracelet if the victim consents to having a corresponding app installed on their cellphone. My understanding, based on what Senator Batters said two weeks ago, is that this is also being done in Saskatchewan and other provinces.

Senator Boisvenu also mentioned that, according to 2010 figures he obtained from the Syndicat des agents de la paix en services correctionnels du Québec, or CSN, which is the union representing Quebec peace officers in correctional services, 40% of offenders serving conditional sentences don’t comply with the conditions imposed by the Criminal Code and the judges. Unfortunately, we did not hear any witnesses make that claim, nor did we receive any documentation or evidence to support it. Furthermore, we have no information on the nature of the alleged violations, which I am sure must vary in severity.

Finally, I would point out that a conditional sentence can only be imposed on offenders if the judge believes that the appropriate sentence is imprisonment for a period ranging from a few days to two years; in other words, these are offenders who would be sent to provincial corrections facilities. The proposed amendment is tantamount to saying that we will automatically increase the number of inmates in provincial prisons. In my view, we cannot impose that consequence on the provinces unilaterally, without consulting them and giving them the opportunity to express their views on such an amendment in committee. As senators representing the regions, we owe it to the provinces to consult with them before imposing a significant financial burden on them.

In conclusion, it seems to me that this amendment must be rejected. That was the outcome at the Standing Senate Committee on Legal and Constitutional Affairs, by a vote of nine to four. Thank you for your attention. Meegwetch.