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News - Committee Transcripts - Standing Committee on Social Affairs, Science and Technology - Review of Bill C-268 - May 27, 2010

OTTAWA, Monday May 27  2010

Le Comité sénatorial permanent des affaires sociales, des sciences et de la technologie se réunit aujourd’hui à 10 h 30 pour étudier le projet de loi C-268, Loi modifiant le Code criminel (peine minimale pour les infractions de traite de personnes âgées de moins de dix-huit ans).

Le sénateur Art Eggleton (président) occupe le fauteuil.

Le président : Bonjour, bienvenue au Comité permanent des affaires sociales, des sciences et de la technologie.

(Chair : We continue this morning on the topic of Bill C-268…)

(anglais suit)


 (Following French ‑‑ the Chair, continuing ‑‑ de la technologie.)

We continue this morning on the topic of Bill C‑268, An Act to amend the Criminal Code (minimum sentence for offences involving trafficking of persons under the age of eighteen years).

Today we will have two panels of witnesses who will give us two perspectives with respect to mandatory minimum sentences. 

We are starting with Michael Spratt, Director, Criminal Lawyers' Association, and he is no stranger to Senate committees.  He has appeared on behalf of the association a number of times.  He practices exclusively criminal defence at Webber Schroeder Goldstein Abergel, here in the city of Ottawa.

Welcome, Mr. Spratt; if you could take seven minutes for some opening comments, and we will then have the committee engage in conversation with you.

Michael Spratt, Director, Criminal Lawyers' Association:    Thank you very much.  It is a pleasure to appear before this honourable committee.  As the chair said, my name is Michael Spratt.  I practice exclusively criminal defence law.  I am a director with the Criminal Lawyers' Association.  For those of you who do not know or are unfamiliar with the CLA, we are a non‑profit organization comprised of over 1,000 criminal lawyers both inside and outside of Ontario.  We practice mainly criminal defence work.  We are routinely consulted by committees, such as this honourable committee and provincial committees dealing with topics of the administration of justice, the administration of legal aid, and we are heavily involved in access to justice issues.

I will start by saying that the subject matter of the bill, protecting the vulnerable of society and especially society's most vulnerable, children, is a laudable goal.  I have no quarrels with the purpose of the legislation.

Our main objection is to the use of mandatory minimum sentences.  We, of course, deal with accused people, people presumed innocent but charged with a criminal offence.  These are the people who are most directly affected by the imposition of mandatory minimum sentences.

From our perspective, the problems with mandatory minimum sentences are many and varied.  I will start by listing a few categories.  

The first main problem with mandatory minimum sentences is their utility.  There appear to be little empirical data that show they are effective at achieving Parliament's goal.  There seems to be little evidence, or the evidence is unequivocal[es1] , that they assist in specific deterrence and general deterrence.

The second problem, from our perspective, with mandatory minimum sentences, is they represent a one‑size‑fits‑all solution that limits or removes discretion from judges, and judicial discretion is, from our perspective, very important in our system.  When judicial discretion is limited, it can result in unfair and unjust results.

The third problem with mandatory minimum sentences, from a practical point of view, is they do two things very well, neither of which are advantageous.  The first thing they do is have fewer cases resolve early.  There is not very much incentive to resolve for a mandatory minimum sentence if your culpability is at the lower end of the scale, you have no criminal record and you know that no matter what you do after trial or if you plead guilty before trial, you will probably be in the range of the minimum sentence.

At the same time, mandatory minimums are quite excellent for inducing pleas when a plea might not be appropriate, inducing a resolution.  I will address that later.

The final major problem with mandatory minimum sentences is that they can disproportionately affect minority and other vulnerable groups.

Dealing with each of those topics on their own, I will limit my comments to the effectiveness of mandatory minimum sentences.  You have my written submission, and it outlines some of the empirical data, and others can speak to the empirical data better than I can.  That is covered in my material, and I will not belabour that point. 

The most important point and problem with mandatory minimum sentences is that they limit judicial discretion.  That is undesirable for a number of reasons.  Judges hear the case; they hear the trial; they hear the plea.  They are familiar with the specific facts of the case.  More importantly, they are familiar with the personal circumstances of the offender because, of course, sentencing is an individualized process.  We look at the offence, the circumstances of the offence, the offender, the offender's personal information, and that allows one to craft a just sentence that will accomplish the goals that we all want to accomplish through sentencing:  deterring the person specifically; deterring others; and, perhaps, more importantly, rehabilitation.

Judges are not only in the best position to craft an appropriate, fair and just sentence, but their decision is also reviewable.  They have to provide reasons, and if the reasons are insufficient or if either party disagrees, there are appeal courts and there is a mechanism of review.

We place a great deal of trust in our judiciary.  Maybe more important than the sentencing, they are the ones who will decide if the Crown has met its onus ‑‑ proof beyond a reasonable doubt.  We place a great deal of trust in judges, and rightly so.  They are appointed by the government; they are leaders in the legal field; and they are cream of the crop.  We are in one of the best positions in this country.  We have Crowns who are honourable, bound by ethics; we have defence lawyers who are regulated and also have a code of conduct we must follow; and we have judges who are well trained and are incorruptible.  In fact, we often, as a country, are consulted by emerging democracies about how to structure their judiciary and legal system.  The reason we are consulted as a country about that is our judges are incorruptible.  They are intelligent, and they are in the best position to craft just and appropriate sentences.

When mandatory minimum sentences are in place, and the discretion is removed from the judge, there is still an exercise of discretion, but it shifts to a non‑reviewable, non‑transparent form of discretion.  The discretion moves to police officers about what charge they will lay and in what circumstances they will lay that charge.  You will hear from Mr. Chaffe on behalf of the Canadian Association of Crown Counsel, and I am sure he will tell you that a great deal of discretion rests with Crown attorneys about what charges they will proceed with and what plea negotiations they will enter into.

Quite often, when we are conducting plea negotiations with a Crown, it will be a judicial pre‑trial with a judge who will be there to facilitate a resolution or to narrow trial issues.  That meeting is off the record, behind closed doors, not reviewable, and, quite often, when we look at mandatory minimum sentences, there is a great incentive for the charge that carries the mandatory minimum to be dropped or not proceeded on by the Crown and for the accused to plead guilty to some other charges.  They may end up getting the same sentence, but there is discretion with the trial judge about what sentence to impose.  That lacks the transparency and reviewability that are a hallmark of our system.  Of course, countries around the world have been moving away from mandatory minimum sentences, and I feel it is unfortunate that we have become more dependent upon them in recent years.

I say that the judges are in the best position to review the facts and be acquainted with the unique circumstances of the offender. That is important because I could sit here all day and come up with circumstances of offence and offenders and levels of culpability.  The permutations and combinations of such are endless and, of course, would result in different sentences. 

It is especially important in the context of this bill because, perhaps quite rightly, the offence is defined broadly.  The language in the bill applies to every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of 18 or exercises control, discretion or influence over the movement of that person for facilitating the exploitation or exploiting them directly.  That broad language may be appropriate.  I do not have any qualms with that. 

However, when we look at the legal principles of partyship and offence, who is liable?  It is not only the main player who is liable, but those who assist him.  When that is combined with the language in this bill, one can imagine very different categories of offenders and offences. 

One can imagine the master mind that is profiting, organized, and uses violence and intimidation to brutalize victims.  That person will receive a harsh sentence.  Whether or not there is a mandatory minimum, the sentence will be greater than five years in all likelihood.

One can also imagine someone assisting that person.  Perhaps they are looking to escape a situation themselves.  They get involved in transporting or delivering the child, knowing where the young child is going with their eyes open or, perhaps, willfully blind to what will happen.  There are reasons why that person is involved ‑‑ not for financial gain but to escape a bad situation.  One can imagine many different examples that result in increased moral and legal culpability, which perhaps mitigate one's culpability. 

Both of those people at the high and low end of offence would be guilty.  Both would be subject to a mandatory minimum sentence.  The mandatory minimum may be a just sentence for one.  Something greater than the mandatory minimum might be a just sentence for one of those people.  However, the five‑year mandatory minimum sentence may be unjust and unfair when we consider the specific circumstances of the second, perhaps less culpable, offender. 

One can sit here and think of examples all day, but we do not need to do that.  We have judges who do that.  They are paid and trained to sit and hear those specific cases.

A one size‑fits‑all‑solution does not advance the cause of justice, and I submit that it is not a laudable goal.  During the questioning period, we can speak about some of the practicalities of mandatory minimum sentences, the incentive to plead guilty if charges are reduced to escape the mandatory minimum, and the lack of incentive to plead guilty or to follow through to have a trial if you are facing the mandatory minimum sentence.  That is what we see with mandatory minimum sentences that are already on the books. 

We should be looking at ways to facilitate resolution to streamline the process.  As we all know, budgets are tight, the just system is stretched, delays are long, and we do not want to encourage more trials when their utility might not be desirable.  During questioning, we can perhaps also talk about how mandatory minimum sentences may adversely or disproportionately affect minority and disadvantaged groups in our society.  This is also in my paper.

The Chair:  Thank you.  We will get a chance discuss more of those issues and flesh out some of the information you have given us in the question period.  

You mentioned that other countries are moving away from mandatory minimum sentencing.  Can you expand on and give examples why countries are moving away from mandatory minimum sentences?

Mr. Spratt:  Yes.  The answer to this is in the written submissions and includes citations to some studies. 

If we simply look to our closest neighbour south of the border, we are all familiar with the three strikes law in the United States.  For example, we see Michigan moving away from mandatory minimum sentences toward conditional sentencing, house arrest and judicial discretion.  One hopes it is being done purely for reasons of fairness and the facilitation of a just justice system. 

The Standing Senate Committee on Legal and Constitutional Affairs heard during the truth in sentencing legislation that mandatory minimum sentences limiting pre‑sentence custody serve to increase the jail population and put strain on an already strained system.

The Chair:  Honourable senators, I will ask you to limit yourselves to seven minutes each, please.

Senator Ogilvie:  I first want to make a couple of observations before I go to the specific issues with regard to your submission.  From my perspective ‑‑ and I will make that point clearly ‑‑ I see you and your organization not as a disinterested party.  Rather, it is in your interests, professionally and financially, to have the greatest flexibility possible with regard to sentencing to enhance your credibility with your client pool.

Regarding your comments about judges, I wish we lived in the ideal world you have painted.  Throughout my life experience, regardless of the profession, no one set of human beings characterizes through their entire membership the characteristics you have assigned to judges this morning.  I point out that judges are often politically appointed, which therefore adds to the dimension we are dealing with.

Coming directly to the nature of the bill, this case deals with a law relating to the wilful and deliberate destruction of young lives during their most vulnerable stages of development.  These are individuals exploited through trafficking, whether it is for the purpose we can most quickly relate to in terms of devastation ‑‑ sexual exploitation ‑‑ or to the equally long-term damaging exploitation of physical abuse, including the deliberate removal of organs from youth.  These are acts leading to the absolute destruction of lives.  These are not criminal activities that have a short-term impact.  They impact young people at the most critical stages of human development.

With regard to utility in deterrence that you mentioned about minimum sentencing, a minimum sentence keeps the perpetrator ‑‑ the one now found guilty in a court of law ‑‑ keeps that individual from harassing the victim during a set period of time and allows some possibility of the victim being able to readjust without that additional impact.  There are many other reasons I think a minimum sentence is valuable.

The idea of one-size-fits-all eliminates judicial discretion ‑‑ exactly.  It is my view that there should be an elimination of that judicial discretion in these cases for the reasons I indicated earlier. 

Regarding fewer cases resolved early, it is important to have cases resolved appropriately.  Regarding how mandatory minimums disproportionately affect minority and vulnerable groups, I am tired of hearing the idea that someone who has deliberately violated anyone ‑‑ let alone someone as vulnerable as young people in our society ‑‑ should be looked at from a different point of view based on the particular ethnicity or other characteristic of the perpetrator.

I do not have a question for you, although I am sure you will want to comment on the things that I have mentioned, but I find that the arguments that you have presented are not substantial.  The idea of things like jamming the courts are not reasons to not provide a sentence for a crime that society feels is minimally acceptable under the circumstances.

Mr. Spratt:  I will start by reiterating that we do not disagree with the goals and the purpose of this legislation.  Simply, there are other fairer ways to accomplish those goals than imposing mandatory minimum sentencing. 

I can think of two off the top of my head.  The first is making age an aggravating factor on sentencing.  Second, if you feel that the mandatory minimum sentence should be legislated and that it will be, that there is a permissible departure clause allowing for, under exceptional circumstances, a variation from that mandatory minimum.  That would alleviate a great deal of my concerns because it would restore fairness. 

The CLA is not a disinterested party, you are right.  I do not stand to gain financially.  I do not need enhanced credibility with my clients.  I already have credibility with my clients for this reason; I am interested in fairness and I am interested in appropriateness.

The reason why personal characteristics – not just ethnicity, but one's background, why they committed a crime, addiction issues, et cetera – are important and need to be taken into account in sentencing is not only because it allows for an appropriate, fair sentence, but it is necessary for accomplishing the goal that we all seek, which is rehabilitation of the offender.

When one is in prison for a period of time, five or six years, there is one thing that is certain; that person will be released.  If the sentence has not reflected their personal circumstances so they can be adequately dealt with, society does not benefit.  The CLA is indeed interested because we are interested in fairness and appropriateness.

Lastly, I will deal with your comments about judges.  Yes, we do not live in an ideal world; there are judges who make mistakes.  That is why there is a review mechanism.  It is an adversarial system.  That is why there is a Crown attorney there – a well‑funded Crown attorney who is able, unlike the accused in many cases, to appeal a decision, have that decision reviewed, not just to the Court of Appeal but to the Supreme Court to judges who are appointed, especially at the Supreme Court now, in a more transparent way. 

One cannot lose sight of the fact that these judges are at the pinnacle of their profession.  There are guidelines set by the government for who can be a judge.  They have practiced for 10 years.  The process to become a judge is rigorous; there is a committee to vet judges.  These are people that we place our trust in as a society, I place my trust in as a criminal defence lawyer and my clients ultimately have to place their trust in as the arbiter of their guilt and innocence.

I appear before judges every day.  I have appeared in the Ontario court of justice in the superior court and at the Court of Appeal.  I have conducted murder trials before a jury.  We cannot forget that juries are involved in determinations of guilt or innocence as well.  I would place my faith and a determination of my guilt and innocence before a Canadian judge any day.

Senator Callbeck:  We had witnesses yesterday who told us that sentences imposed on people involved in trafficking of our youth tend to be lenient.  This legislation is trying to address that.  You say that minimum/maximums do not work.  I am not a fan of minimum/maximums in most situations, but if we do not have minimum/maximums, how will we ensure that these people who are involved with the trafficking of our youth get stiffer penalties?

Mr. Spratt:  I do not know how five years was arrived at, but in the absence of imposing a minimum number such as that, there can be a statement of principle.  The age of the person can be listed as an aggravating factor.

The problem with minimum sentences, and we see this in other offences, is quite often the minimum becomes the new going rate.  We see that for firearms offences all the time; people who may deserve stiffer penalties end up receiving only the minimum. 

The other problem with imposing minimum sentences is there is an enhanced motivation for resolution that involves something other than the offence that the person is charged with – trafficking.  For example, if you have a client charged under this bill with trafficking in a child, and perhaps there are some personal circumstances or some explanation that would move him to a less serious category – because all offences have categories of culpability, moral and legal – there might be pressure to resolve not for the offence itself, for trafficking, but perhaps for an assault or forcible confinement or some other type of offence.  Of course, that is not in the interests of transparency or assigning blame and responsibility.

I think I am aware of the some of the cases you are referring to, senator, when you say there are lenient sentences.  There are not very many cases out there now that have dealt with this.  The Eve case, for example, is rather new and novel, so there may be a learning curve for both the prosecutors and the judiciary.  However, certainly there can be education and there can be ways to ensure that appropriate sentences are delivered, if that is what is appropriate. 

What should always be remembered is there are forms of review.  If the sentence is grossly inadequate or is too lenient, it should be appealed.  The government has resources and it is an important enough issue that it should be.  What we know for sure is that mandatory minimum sentences can result in unfairness.

Senator Callbeck:  If you were charged with the responsibility of seeing that appropriate sentences are delivered, what changes would you make?  There are a couple of things that you recommend here, but what would you do?

Mr. Spratt:  There should be a statement of principle; age should be listed as an aggravating factor, which I think it probably already would be, but it should be legislated as such.  The degree of violence or domination could be legislated as an aggravating factor.  The most important process, when we are dealing with any new legislation or any emerging issue, is education. 

The judiciary and the public should be educated because it is members of the public who will put pressure on the judiciary and Crown attorneys to seek harsher penalties.  Then we can have the best of both worlds.  We can have Crowns seeking harsher penalties and judges educated about the evils that you spoke of. At the same time, there is some flexibility to recognize that, in some circumstances, discretion is warranted and it is also a valid objective.  One cannot lose sight, when we are measuring goals, and this legislation again represents an important goal, of the equally important goals of judicial discretion, proportionality and fairness in the process.

Senator Callbeck:  You mention the public.  You say in your brief that it is clear that the public and legislative interest in mandatory sentencing laws has declined.  What evidence do you have of that?

Mr. Spratt:  That the public's interest in mandatory minimum sentencing has declined?  Sorry, can you refer me to the page?

Senator Callbeck:  Page 7.

Mr. Spratt:  Thank you.

Senator Callbeck:  It is in the second paragraph, the third sentence: 

Mr. Spratt:  That refers to a study by Julian V. Roberts that is authored by the Canadian Department of Justice, Research and Statistics, January 2005.  That is where that proposition is drawn from.  One might say that a properly educated public that is aware of the problems with mandatory minimum sentences would be even less likely to support their continued expansion, especially when other common law jurisdictions, our brother countries around the world, Australia, the United Kingdom and the United States, have moved away from such a legislative practice.

The Chair:  I now have an expanded list.  Given the time frame we have left for this panel, four minutes for each person gives you enough time for a succinct question and answer.  It does not give you much time for preamble.  

Senator Eaton:  Educate me, Mr. Spratt.  Do we not have mandatory sentences for murder, second degree murder and manslaughter?   

Mr. Spratt:  There are certainly mandatory minimum sentences on the books.  Some have been struck down as unconstitutional.  Some remain.

Senator Eaton:  What are the ones that remain?

Mr. Spratt:  They are numerous and varied right now.

Senator Eaton:  Murder?

Mr. Spratt:  First degree murder.  

Senator Eaton:  Second degree murder?

Mr. Spratt:  Second degree murder is a life sentence, but there is no minimum parole ineligibility.  For first degree murder, it is a life sentence with a 25 year parole ineligibility period.  Second degree murder is a life sentence, so you will always be monitored by the parole board, but there is no minimum parole ineligibility period.

Senator Eaton:  And rape?

Mr. Spratt:  There are no minimum sentences for sexual assault.

Senator Eaton:  If a woman is raped, there are no minimum sentences.  A judge could give two years, say, if I was married to the person, or, if I was on the street, a judge could sentence my rapist to two years?

Mr. Spratt:  In the case of a sexual assault where a woman is victimized, we trust judges to impose the correct sentence.

Senator Eaton:  Would you not think that a sex offence against a child or child labour are at least as heinous a crime as second degree murder?

Mr. Spratt:  This is the problem when we are dealing with absolutes.  One can imagine many different cases where an offender takes someone's life, and one can imagine a great many cases where a child is subject to unspeakable acts.  The problem with mandatory minimum sentences, and the problem I have answering that question, is that I cannot think of all the permutations that may exist. 

Senator Eaton:  I guess I lack imagination to imagine why you would object to a minimum sentence if a child has been exploited in any way.

Mr. Spratt:  I trust our judiciary.

Senator Eaton:  I guess I do not completely in that regard.  Can you elaborate, if you have time, on how minimum sentencing would affect the more vulnerable of our populations or minority of our populations?  Why do they have extenuating circumstances that the rest of us do not?

Mr. Spratt:  When we look at personal circumstances, what is empirical, moreso in the United States than in Canada but also in Canada, is that the prison population is comprised disproportionately of certain groups.  Perhaps I will deal with the Aboriginal population, because in the short amount of time I think that is an easier group to deal with.  It is in fact legislated in the Criminal Code.  After the case ofGladue, Aboriginal offenders are entitled to consideration of their Aboriginal status, and that is a recognition of their personal circumstances, their history and specific factors in that community that may lead to offences and should be considered upon sentence.  Not only is it important when determining culpability and the reasons for offences, but also in determining ways to rehabilitate.

Senator Eaton:  Is that not patronizing?

Mr. Spratt:  The government did not seem to think so and the Supreme Court did not think so when specific enactments and pronouncements were made.

Senator Martin:  Thank you, Mr. Spratt, for what you have presented today.  In some ways, I think we agree, but there is a lot of disagreement on the interpretation.  For instance, I agree that we have a distinguished group of judges, and they are honourable and bound by ethics, and they are intelligent.  We all respect our judiciary, but no system is perfect. 

In our current system, as you say, these cases are new.  There have been only five sentences delivered and, as Senator Callbeck has pointed out, they were very lenient by all of our standards, as Canadians, when we are talking about minors.  It is not a fair system when you have perpetrators who are adults and victims who are minors.  In the application of the Criminal Code and the provisions that were put in place in 2005, we can see what the gaps are.  The gaps exist in the system.  We are not getting the kind of sentences that, as Canadians, we would want to protect our children.

When you talk about accomplishing goals, whether it is fairness or appropriateness or rehabilitation, I agree with you, except what rehabilitation is there for the perpetrators when they are getting a sentence where they are only serving one week or one month or one year?  They have victimized these minors who are really at a disadvantage.  We agree on our goals, but clearly there are problems in the system.  Ultimately, this bill addresses those gaps. 

As you say, we are learning, but in this learning curve, how many more victims will have to pay the price?  How many more families will have to suffer?  These are all vulnerable kids.  Our system is not perfect.  Could you address the gaps you have seen?  We may disagree, but you can comment on what I have said.  It is not a question, and there are more things I wish to say, but I am limited in time, so I will give the rest of the time to your response.

Mr. Spratt:  The first thing I would urge this committee to consider, and you will hear from witnesses more expert than myself on this, and there is some reference to it in my material, is that mandatory minimum sentences do not offer the deterrent effect.

Senator Martin:  I am not talking about deterrent.  Denunciation is a key principle.

The Chair:  We have very little time left.

Mr. Spratt:  Denunciation is a principle.  I think rehabilitation and specific deterrence is another key principle. 

This is an emerging area of law.  I do not think the appellate courts have spoken on the sentences that you have referenced. 

Other changes in legislation will address some of your concerns.  Although I spoke against it, the elimination of the two-for-one credit will result in longer sentences.  When we say a person only received one week for an offence, we have to remember that the person was not sentenced to one week.  I think in the case of Eve, the offender spent over one year in horrendous pre‑sentence custody without any rehabilitation, which is not a laudable goal.  When we speak about lenient sentences we must remember the legislative map that existed and how that has changed with regard to the credit given to pre‑sentence custody. 

The bottom line is that I agree with you.  This is a problem that needs to be addressed.  This is a vulnerable group.  At the very least, if the government is to mandate a minimum sentence, there should be some permissible departure clause in the legislation that allows for the most extreme circumstances.  Only in those circumstances may a judge deviate from the minimum sentence.

Senator Plett:  I want to thank Senator Ogilvie for his excellent preamble.  He said most of what I wanted to say and I echo his comments.

I want you to understand my personal feelings.  My concern is not for Imani Nakpangi.  My concern is for Eve and the thousands of Eves out there.  You concern may be for the perpetrator; mine is for the victim.  I believe the minimum sentence we have in this bill is not stiff enough. 

I think your concern is addressed when you say a judge should be able to deviate under the most severe or extreme circumstances.  We have given the minimum sentence in this bill and the deviation from that should only be toward the maximum sentence.  You place a lot of trust in judges, and rightfully so, yet you say these minimums will also become the maximums.  If you have the confidence in judges that you say you have, we should trust judges to increase those minimums in a case like Imani Nakpangi where the judge would give him more than five years.  I would like to believe we have judges who would do that. 

You talk about aggravating factors such as age.  The entire bill speaks to the issue of age.  This bill is directed toward youth.  You say the public is moving away from wanting minimums.  You have some evidence to support that.  I speak to a lot of the public and they want stiffer sentences, not more lenient ones.

I would like you to address your comments about judges and why you feel they will automatically give someone who abused Eve give the offender five years and not ten years?

Mr. Spratt:  In that case, the person may not receive five years.  Personal circumstance of the offence ‑‑ Imani Nakpangi was a fairly heinous case ‑‑ would be considered.  I would have thought he would have got more; he did not.  First, I do not think the appeal court has spoken on that case.  Second, the problem with mandatory minimums is that they can decrease transparency. 

Senator, you and I would both agree, and the people you speak to would agree, that we want a transparent system.  We want to know why people are receiving sentences, and we want reasons why they are receiving sentences.  That is something we can all agree on.

I deal with mandatory minimum sentences all the time for firearms offences.  There is no mandatory minimum for sexual assault.  There is a mandatory minimum for a sexual interference. 

I am dealing with an ongoing case involving distribution of child pornography.  He is charged with distribution of child pornography, which has a mandatory minimum of one year if the Crown proceeds by indictment.  He is also charged with possession of child pornography, which has a mandatory minimum of 90 days if the Crown proceeds by indictment.  In that case, there is an extreme incentive to engage in a closed-door meeting with Crown Attorneys to resolve the charges and have the charge carrying a one-year minimum dropped if the offender pleads guilty to the offence with a 90 day minimum.  

That situation happens all the time.  You would not know about it unless I told you because it happens behind closed doors.  Minimum sentences result in less transparency.

Senator Dyck:  I agree with many of the things that have been said.  I wanted to say what Senator Plett said ‑‑ this bill is all about age.  Age has been taken into account as an aggravating factor because we are talking about minors under the age of 18.  In my speech at second reading, I thought we should maybe incorporate different ages because I think younger children are more vulnerable and more likely to be more severely affected by human trafficking. 

However, the interesting option occurs in that judges should be able to see the minimum mandatory as a minimum sentence and then add to it.  That is something we should leave to the discretion of the judge.  I am not opposed to imposing a minimum mandatory sentence for this offence; it is a minimum. 

Other countries like the U.S., Thailand and India all impose minimum mandatory sentences for the sex trafficking of children.  Their penalties are higher ‑‑ seven to ten years.  They impose a minimum mandatory for sex trafficking, but they do not impose a minimum mandatory for labour trafficking of children. 

That is a significant distinction.  That is why I think, perhaps, there should be a distinction.  You talked about different types of offences.  You imagined cases of human trafficking for a minor that should not require a minimum mandatory.  If you have a minor trafficked for purposes of forced labour that was not related to sexual exploitation, can you give us an example that might be an exception?

Mr. Spratt:  Look at the principles of one being a party to an offence.  One can be captured under this legislation if they are not the mastermind.  They may simply be the person travelling with a young person, bringing them to Canada to hand off to another individual.  It is reprehensible conduct; there is no disagreement on that. 

However, there must be recognition that this person is not the mastermind.  There is no way with a mandatory minimum sentence to reflect precisely their culpability and their reasons for engaging in that act. 

Someone trafficking in children for their own gratification or for monetary gain would be in a different category than someone who is wilfully blind.  They may not even know exactly what is happening.  The concept of wilful blindness exists in our legal system.  They ought to have known; they should have looked into matters.  If someone is wilfully blind to their conduct in transporting, not arranging, and handing off that child, they are certainly guilty of an offence.  They are guilty of reprehensible conduct. 

However, someone who engages in an act like that to secure their own passage out of a war-torn area or to secure a benefit for their family should be treated differently from someone engaging in gratuitous conduct for their personal financial benefit.

That is the problem with minimum sentences.  Five years undoubtedly is appropriate for someone who is doing it gratuitously, for their benefit, maliciously, is the mastermind and ringleader.  I would agree with you that more than five years would be appropriate for that person.  Is a five-year minimum an appropriate sentence for an individual who is in the lower end of moral culpability in all cases?  Can we really say that?  Can you say that in every single case that you can imagine, being liberal and extending every benefit to the offence you are imagining, every mitigating factor?  They are from a war‑torn country, and they are not benefiting in any way except to help their family out.  Imagine those examples.  Can you think of one example that may not warrant five years?  I suppose that is where we disagree.

Senator Siedman:  I am looking at Bill C‑268, An Act to amend the Criminal Code (minimum sentences for offences involving trafficking of persons under the age of eighteen years).  I must say I am a little alarmed that you really do not address the specific issue of human trafficking in your submission to our committee, nor do you do so in your conclusions.  You treat it like it is just any ordinary, mandatory minimum that we might be dealing with. 

Might you be familiar with the Criminal Intelligence Service of Canada's 2008 strategic intelligence brief entitled “Organized Crime and Domestic Trafficking of Persons in Canada”, which raises the alarm that human trafficking is a growing national problem?  Indeed, it is done by well‑organized networks rather than just individuals.  In the U.S., 2009, the trafficking in persons report notes that Canadian law enforcement has reported difficulty securing adequate punishments against human traffickers. 

If we can be more specific as to what we are referring to in terms of to mandatory minimum sentences rather than just assuming it is comparable with any old kind of crime, which we clearly as a committee are saying it is not, do you feel that the criminal justice system appears to be working when it comes to addressing the trafficking of underage girls?

Mr. Spratt:  Perhaps I will start with your question that I never addressed human trafficking, and I will.  I am against it.  It is bad.  It should be stopped.  I do not think I disagree with anything that anyone on this committee has said about human trafficking.

However, when we look at how we accomplish that goal, certainly imposing a mandatory minimum sentence of five years, ten years or twenty years will accomplish what you seek to accomplish, but one has to measure it against fairness, against our historic position of discretion in our justice system, and really the utility of mandatory minimum sentences.  Will mandatory minimum sentences deter these well‑organized networks offshore with masterminds offshore who send people over? 

Again, I would urge this committee to hear from the people who have done studies on this, but mandatory minimum sentences do not provide general deterrence.  If this committee and if Parliament clearly says, “We understand that mandatory minimums do not provide deterrence and that they can lead to unfair results, but we are imposing a mandatory minimum sentence because this is about punishment and denunciation,” that is fine.  It will likely be constitutional.  There will be specific constitutional challenges in cases where the specific circumstances merit it, but if we want to concentrate on punishment and denunciation above the other paramount goals of proportionality, rehabilitation and deterrence, that is fine and let us say so. 

However, I am here to tell you that mandatory minimum sentences do not lead to transparent results.  The evidence seems to say they do not offer deterrence.  I am here to tell you that mandatory minimum sentences will result in more trials, and they will capture people in an unfair way and lead to unjust results.  In the end, we need not engage in this debate because I am here to tell you that as someone who appears before judges on a daily basis, that we do not need to impose mandatory minimum sentences because our judiciary is in the best position to ensure that there are appropriate results.

Senator Siedman:  I just want to ask you a question about evidence, because you keep talking about evidence.  I would like to know exactly how many studies demonstrate this conclusive evidence and what kind of studies demonstrate this conclusive evidence that mandatory minimum sentences do not work.

Mr. Spratt:  I have cited some of those studies in the paper.

Senator Siedman:  How many?

Mr. Spratt:  I do not have a number to give you.  I have cited them in the paper.  You can refer to those.  The point I would make is that if as a country and as a government we are moving away from our historic position of discretion and fairness, then it should not be my job to present this committee with studies, but the government should be in a position to tell me why we are departing from that.  I have yet to see a study that says that mandatory minimum sentences are a better deterrent than the alternatives.

Senator Demers:  Thank you for being here this morning.  I lived 21 years in the United States.  I am not a lawyer, but I have friends.  The United States seem to be harsher, if you want.  I think, not being disrespectful, the sentencing is sometimes a joke.  The victims seem to have less leeway than the person who committed the crime.  They are often candy sentences.  Recently, someone was arrested 15 times for drunk driving, and they killed someone, and finally now he is going to get it.  We have an artist, and I do not have to mention her name, who was attacked by her agent for years when she was eight, ten or twelve years old.  The person is totally screwed up in life, and he is out playing golf.  That is just an example, because I am limited in time, and I certainly respect Senator Eggleton's time.  Are we going around the table and running around?  Is anyone listening?  To me, I think it is a joke.  I see guys coming out of jail, because I have done some speaking engagements in jail, and they have a better life than the victims.  That is all I have to say.

The Chair:  Do you have a brief comment?

Mr. Spratt:  Drunk driving is a bad crime, 15 times is deplorable, and there are mandatory minimum sentences for second, third and fourth offences for drunk driving.  Obviously they did not work.

Senator Hubley:  Mr. Spratt, I go back to your main objection to mandatory minimums, which is limiting judicial discretion.  You did mention that you might like to comment on the actual practicalities of mandatory minimum sentences and the discretion that may then be exercised by Crown Attorneys or the police.  I am wondering if you might highlight what problems might arise because we are now, because of the mandatory minimums, limiting our judicial discretion, and that may, because of practicalities, be picked up at some other level of the legal system.  I am wondering if you would like to comment on that or give other examples.

Mr. Spratt:  The best example that one can give about mandatory minimum sentences and Crown discretion is that the Crowns are honourable people.  They do a good job; I deal with them every day.  You will hear from Mr. Chaffe after me.  I have appeared on committees with him before and there is no better person to hear from. 

However, when we remove discretion from judges and place it in unreviewable hands, that is not something that we should strive for.  If we look at firearm offences, which are the best example, there is a four‑year mandatory minimum for a robbery committed with a firearm.  Of course, when you commit a robbery with a firearm, there are many other charges you are charged with – possession of a firearm, assault – offences that may not carry the same mandatory minimum sentences.

One thing that quite often happens is the Crown will exercise its discretion and not prove that the firearm is a firearm.  There will be an agreement that it was an imitation firearm, which has a lesser mandatory minimum sentence.  That achieves a goal for an offender who commits an offence and wants to accept responsibility but, for whatever reason, four years is unpalatable.  Maybe it is too long for the offender or maybe there are personal circumstances that may justify something less than that.

In that case, it is an incentive for the person to resolve, which is laudable, because four years may not be appropriate.  At the same time, we are trusting Crown attorneys to exercise that discretion about what charge to proceed on and what to prove.  Again, they are all honourable people, but at the same time, it seems ironic that we are placing discretion in the unreviewable hands of a Crown attorney and removing it from the reviewable hands of a judge.  That is an inevitability that will occur.  That is something that I do not think, as a society, we should strive towards.

The Chair:  On that note, I will say thank you on behalf of the committee, Mr. Spratt, for your presentation and comments.

Mr. Spratt:  Thank you very much.

The Chair:  Next we welcome Jamie Chaffe, President of the Canadian Association of Crown Counsel, which he has been since of April 2008.  Prior to that, he had a distinguished career with the Ontario Crown Attorneys' Association, where he was also president at one point in time.

Welcome, and if you could, in about seven minutes, give us your opening comments.

Jamie Chaffe, President, Canadian Association of Crown Counsel:    Thank you, I will be exceedingly brief with respect to my opening comments.  I hope to be of some assistance to this committee on this very interesting topic.  Thank you very much for inviting the Canadian Association of Crown Counsel.

Our organization is comprised of Crown prosecutors and civil lawyers employed by the Crown in the federal government and in each of the provinces.  These member organizations represent frontline prosecutors in each province and with the federal Public Prosecution Services of Canada and the Department of Justice.

The CACC represents the interests of these prosecutors to the respective ministries of justice and to the justice system at large at a national level.  When the CACC makes comments on a proposed piece of legislation, it does so from an apolitical, non‑partisan perspective, as befits our role as quasi‑judicial officials in the Canadian judicial system.  We do not comment on whether a particular proposed change to the law reflects good or bad policy, but we strive to provide input on the likely systemic impact of the change on the ground from the perspective of a frontline prosecutor.  We are strongly of the view that this perspective is critical to your work in making law.

In preparation for these submissions, each provincial and federal prosecuting attorneys association was canvassed regarding their views and the likely impact of Bill C‑268.  We have tried to analyze and predict the impact of this bill on the practical areas of day‑to‑day practice in the Canadian criminal justice system.

Bill C‑268 would create new minimum jail terms for persons charged under the human trafficking sections of the Criminal Code.  All jurisdictions are of the view – to the extent that these charges arise, and it seems apparent that they are arising more frequently – that these mandatory minimum sentences will reduce guilty pleas to such charges and will increase the rate at which these matters go to trial. 

We also expect Bill C‑268 will increase the workload of the sentencing hearing stage.  We anticipate there will be work for our trial prosecutors on appeal grounds with respect to the new provisions as they are challenged constitutionally.

Bill C‑268, as with the other recent Criminal Code amendments that have enshrined new offences, new mandatory minimums and new procedures for dangerous offender designations, will lead to a significantly increased trial rate and fewer guilty pleas.  This is important for jurisdictions that have workloads that are already over capacity, and where there is a significant delay between the date of the charge and the trial date. 

Bill C‑268 may result in a necessary adjustment of sentencing and sentence.  In these overburdened jurisdictions, Crown prosecutors and pre‑trial judges may well need to offer lower sentences or diversion to offenders charged with other offences to compensate for the reduction of trial capacity caused by this new added trial load.

Where such work pressures exist, Crown prosecutors will need to create trial capacity and will likely do so by triaging non‑violent cases out of the trial courts, usually cases that involve offences against property.

Absent an increase in funding to add sufficient criminal justice infrastructure to support this legislation – and by that I mean more prosecutors, courts, judges, probation and parole officers and correction officers – these new provisions represent a new focus for the criminal justice system which would necessarily be resourced out of and at the expense of prosecutions of other criminal offences.

The Chair:  You said that this will result in an increase in rates of people going to trial; there will be less guilty pleas.  It would also add to an overburdened system now, and you say it requires more money.  I understand it from that perspective, but what about the perspective of public security? 

I think many people are saying we want to protect the public; quite aside from the punishment factor, whether it is appropriate to have stiffer penalties, there is the question of security of the public.  Does it add to the security of the public to have these mandatory minimums?

Mr. Chaffe:  I think adding mandatory minimums forces a refocus of the limited resources of the criminal justice system to charges that will attract trial time.  We are not in a position to comment with respect to good or bad policy around enactment of legislation.  The point we are trying to make is, good or bad, mandatory minimums will necessarily refocus limited resources on criminal charges to those charges that attract the minimum sentences. 

In order to support that with the limited trial capacity that we have, because it is a closed and limited system, we necessarily have to triage other charges out to create that capacity.  I am not sure I answered your question in the spirit in which it was asked, but I have to be careful not to comment on policy. 

Let me explain the role a little more clearly to you, if I can have your indulgence.  It is not just that Crown prosecutors across the country may disagree with respect to policy – whether a law is a good one or not – we have a unique role in the criminal justice system.  We are quasi‑judicial officials.  Our overarching obligation is to see that justice is done.  It is our role, pursuant to the oaths we have sworn, to support the rule of law. 

Another of the key foundational obligations that Crowns have is to carry the law into effect.  Once a federal piece of criminal legislation is passed into law, it is our job to carry it into effect.

On a day‑to‑day basis, as a prosecutor stands in trial court looking at his trial list or looking at the month of prosecutions he has to prosecute, he is the meat in the sandwich around what cases get priority and what cases he has to create trial capacity with.  I do not think there is any particular role in the criminal justice system that is more attuned to the issue that you raised with respect to public safety.  Our great challenge is to achieve it with the limited resources that we have.

The Chair:  There is nothing in this bill that specifically gives you additional resources, but if you do not get resources, what is the ramification of that?  Does that mean some of these people go free – that time will expire in terms of bringing them to justice if it is an overburdened system?  What does is the ramification of that, if you do not get the additional funds?

Mr. Chaffe:  I would not suggest that people charged with these particular offences would go free.  What the mandatory minimum would ensure would be a trial.  It would be less likely that counsel and accused would enter a plea of guilt. 

Once we have a trial, we are into a very challenging case for the Crown, particularly in these types of offences.  We are dealing with witnesses who are young and who have often suffered post‑traumatic stress – stress certainly.  We have issues around interpretation and translators; we have issues around memory.  If the victims are participants unwillingly in the sex trade, we will experience all the credibility baggage that might be exploited in an ordinary case.

The Chair:  It sounds like a longer process.  It may not mean anybody goes free who would otherwise not, but a longer, more extended process is likely to come out of this, is that what you are saying?

Mr. Chaffe:  These are difficult cases to prosecute; and let us remember that there are not that many on the books currently.  There may be as many as 32 before the courts now.  Between 2007 and 2008, we had 13 charges of sexual exploitation under the old charges.  It is not a huge part of our charge menu as prosecutors but it appears to be increasing relatively quickly.

The Chair:  We have heard it here today and we are constantly hearing about people who, according to the public, are getting off easy, getting light sentences.  That is what drives this kind of thing – a concern that people who are doing terrible things are getting off lightly. 

We never seem to hear the reasons why a judge decides to have a shorter sentence than maybe what others would think would be justified.  Why is that?  Is it a question that there is not enough transparency or that judges are just going by the going rate?  If there are reasons to give something shorter, why do we not hear about that so the public can get a better understanding of what appears to be terribly short sentences in some of these cases?

Mr. Chaffe:  I guess it depends on the individual case, but I appreciate the spirit of your question.  If the public was to sit in the court anywhere in Canada, they would hear the reasons for any particular sentence.  They would understand that what the judges are trying to do, often, is balance the facts and the existing sentencing law that is before them on that individual case.  Sentencing cases are individual exercises with respect to what is appropriate and what is not.

What I think is becoming more apparent – certainly over the last 15 years, due largely to a chronic underfunding of the criminal justice system – is a necessity for the prosecutorial agencies and the courts to create trial capacity for the most violent offences that are in our charge menus.  We need to create time for that.  We do not have enough capacity, so inevitably we have to triage the cases that are not a prosecutorial priority, which results in some sort of plea negotiation involving, largely, property offences.

Senator Plett:  You said that your prime objective is that justice is done.  I think we would all probably agree that is all of our objectives here as well, and we need to determine what direction we go to get that done.

I am one of those good old boys who do not care about the perpetrator, but I care about the victim.  I believe that this is one way of ensuring that the victims get compensated in some way for the horrendous crimes that they have been put through.

When something is not broken, you do not fix it.  However, I think Eve is an indication that what we have now is not working.  When someone like Imani Nakpangi gets a little over a year in jail, that is not acceptable and something needs to be done.

I make this next comment with the highest respect for you and the work you do; I really do not care about the workload.  I do not care if our courts are overworked.  We still need to ensure that we do the right thing by the victims.

It is easy for me to say that if you do not have enough lawyers, hire more lawyers or get more funding.  Maybe that is a job that this committee or others will have to work on down the road, if our courts are more overworked than they are currently, to get more funding. 

However, we hear the argument over and over again that we cannot put people in jail because the jails are overcrowded. 

Who cares?  Put another bunk in the cell.  Double them up; triple them up.  Senator Demers mentioned the conditions in some our jails earlier.  We are not here to worry about whether these guys have it tough in jail. 

If the workload is too much, maybe some of these cases will move a little faster.  We heard from a defence lawyer in the first panel.  I believe one reason that everyone is overworked is because of the way these defence lawyers can stall things.  Maybe that is simplistic.

I do not have a question for you other than these comments.  I care only about the victim.  I do not care about the perpetrator.  I do not care about the courts and how overworked our lawyers are.  I do not care about how overworked we are. 

I care about the Eves of the world.  I believe this bill takes one step towards compensating some of that.  If you want to comment, I would appreciate it, but there was no question.

Mr. Chaffe:  I do not think the criminal justice system is anything that is terribly complicated.  It is like any other system; it can operate at a certain capacity.  There is not a Crown attorney in this country that is afraid of hard work.  Many of my colleagues in many jurisdictions of Canada country are working to the breaking point and beyond. 

However, there comes a time when there is only so much work that you can physically force into a system.  When you are at capacity or over capacity, law makers need to be concerned about the laws they write.  If laws are not supported by the resources required to move them through the system, you will witness apparent results. 

That is a reality law makers must grapple with.  The criminal justice system is chronically underfunded.  We cannot make enough cars with the production facilities we have.  You want us to make a lot of good cars.  We only have three or four production lines; we need many more.  We need the criminal justice infrastructure to support the kinds of laws that you are currently drafting.  That is very important for everyone concerned with just results.

With respect to prisons, it is obviously not satisfactory simply to add more bunks.  That has already led to apparent results in terms of three-to-one and four-to-one ratios, which you tried to address with legislation.  It is not address the root cause.  The root cause is that there were not enough facilities in the first place. 

From the perspective of Crown attorneys across the country, it is essential that there are sufficient resources to support the legislation you are drafting.

Senator Plett:  I again want to say that I have the highest respect for the work that you do.  In no way did I want to imply that you and all of your colleagues are not working hard.  I appreciate all of the work you do.  The onus might be on us somehow to generate more funding so that you can hire more people to continue to do the good work you do.  Thank you.

Mr. Chaffe:  I did not take it that way, senator.

Senator Eaton:  We have heard several times that trafficking and exploitation against children are rather new crimes that we are not as familiar with, but I think they have always been there.  They were simply more hidden and they are now becoming apparent. 

As a Crown attorney, would you not note or emphasize the seriousness of a crime like sexual exploitation or forced labour against a child?  Mandatory minimum sentences are a strong optic to the court system that this is a serious crime.  These are offences that should be given time and consideration like second-degree murder or manslaughter are considered serious crimes.

Mr. Chaffe:  Crown attorneys take these crimes extremely seriously.  We do not yet have a critical mass of prosecutions to have developed any extensive body of sentencing law around. 

I do not want to comment with respect to the goodness or badness of mandatory minimum sentences.

Senator Eaton:  I am not asking you that. 

I am talking about the optics that if the offences exist, they forces you, as a Crown attorney, to think this is as important as manslaughter of Senator Dyck or the second-degree murder of Senator Eaton.  This is not something that can be sloughed off because it is a child or a17-year-old Aboriginal woman.

Mr. Chaffe:  I suspect it would have little impact on the perspective of Crown attorneys.  The facts speak for themselves.  These are heinous offences.  I expect that Crown attorneys, presented with the facts that you present, would seek significant sentences.

I am not prepared to comment on optics, but every day, Crown attorneys deal with serious offences in our system.  We try hard to carve out the trial capacity and time in the criminal justice system to deal with the most heinous offences.  It is obvious to everyone that these offences are included in that.

Senator Eaton:  I probably misused the word "optics."  I mean that it strikes the imagination of the court that the public takes this crime very seriously.  Has that not been the case?  Perhaps Crown attorneys have taken the offences seriously, but the few judgments that we have had do not seem to take these crimes ‑‑

Mr. Chaffe:  I am not prepared to comment on judgments made by the courts, particularly when I am unaware of the facts.

Senator Eaton:  Mr. Spratt talked about rehabilitation of sex offenders.  What is the success rate in rehabilitating sex offenders in jail?

Mr. Chaffe:  I am not aware of those statistics.  I know there are various categories of sex offenders.

Senator Eaton:  I would have had a thought a Crown attorney would have had some idea about the likelihood of rehabilitation before he asked for a sentence.

Mr. Chaffe:  I would expect to have some sort of psychiatric assessment if it was appropriate in the circumstances to tell me what kind of offender he is, whether it is possible for rehabilitation or whether that possibility is beyond the scope of psychiatric treatment as it exists today.  Certainly we would have that kind of information for the most serious offences.

Senator Eaton:  Are there no statistics?

Mr. Chaffe:  I am sure there are statistics; I do not have them at my fingertips.

Senator Martin:  I am trying to stay focused on the realities and the perspective you bring rather than give you too many hypothetical situations to respond to, but I have one hypothetical question.

You mentioned how challenging cases of human trafficking of minors and sexual exploitation cases are due to the nature of the victim being either too young or having, perhaps, lapses of memory or trauma.  You try to have support from families or others.  These are challenging cases given the clandestine nature of these types of crimes.

Without the mandatory minimums, without Bill C‑268 and under the current laws, how difficult is it to bring these cases to trial? 

I heard you say that the mandatory minimum penalties would ensure that accused go to trial, but right now, with the challenging factors involved in these cases, how difficult is it to get to trial? 

Mr. Chaffe:  We do not have a tremendous amount of experience with respect to human trafficking cases.  A witness yesterday updated my knowledge of how many cases there are before the courts of Canada, a total of 32 currently.  These cases are in that category of the most difficult cases to prosecute.  You are dealing with children under the age of 18.  They come from extraordinarily difficult circumstances.  They probably do not speak the same language that the prosecutor or the court does.  They will need interpreters and translators.  They will need extensive support from witness organizations with respect to getting ready to testify in court.  They will require extensive preparation with the Crown Attorney in terms of preparing them to go to court.  They will need supports in terms of living in Canada while the prosecution is ongoing.  They will likely need psychological supports with respect to the trauma they have endured.  If they have had significant stress during the offence time period they may well exhibit issues with respect to memory, which is often a problem with children, in any event, but particularly when trauma is added.

That is just the victim.  With respect to the prosecution overall from a legal standpoint, there will be required extensive consultation with the police that are thinking about laying the charges.  The police resources out there are limited.  The RCMP has I think six regional centres and 160 officers that are prepared to look at this.  After that, you are looking at the particular police forces across the country that may come across this type of offence.

Witnesses like this are often culturally reluctant to speak to the authority, depending on which country they have come from.  They may not be willing witnesses in any event. 

These are very difficult, labour intensive prosecutions.  Just adding a translator for the purpose of the trial would double the length of the time that you are using the translator.

To say that they are labour intensive I think is an understatement.  They are difficult cases to bring.  That being said, there are already provisions in the Criminal Code that help us deal with child victims.  There have been developments around the law of evidence that assist us in getting statements before the court when witnesses are reluctant to testify.  That being said, it should be apparent to everyone that these are extraordinarily difficult, labour intensive cases.  The more we get, the more resources they take.  We are just talking about prosecutorial resources here at the front end.  We are talking about extensive police resources, victim witness support services and prosecutorial services.  For these prosecutions to be successful, they need to be properly resourced.  We need the proper training and expertise, and the time to devote to these types of cases, which is often the greatest challenge.

Senator Martin:  The RCMP officers who testified before our committee yesterday said that the 34 cases before the courts all involve Canadians.  When you speak about victims who do not speak the language, how many more are out there that we have not been able to bring to this point because of those challenges of which you speak?

In terms of the multi‑faceted aspect and the overall challenge of this very important issue of human trafficking, this bill is a key step but we know that it is not the end; it is the beginning of many other things that we must do as a country, as a system with many, many partners.  We did hear from some of those important partners yesterday.

You say right now you are at capacity, and that without mandatory minimums, because of the difficult nature of these cases, they may not even get to trial.  You have to do so much groundwork.  The mandatory minimum ensures that it goes to trial.  Am I misinterpreting your point?

Mr. Chaffe:  I do not think you are.  I am sorry to interrupt.

Senator Martin:  In an ideal world, if we were to build that capacity, would that ensure these cases would face trial?

Mr. Chaffe:  With respect to these matters more likely going to trial than not, there are not many accused who would plead guilty with a six‑year or five‑year sentence.  It has been our experience across the country that they would rather take their chances at trial.  When you are dealing with vulnerable victims, that is often a risk that they are prepared to take.  Will they get more after a conviction?  Will the witness stand up in court?  Will the Crown be able to adduce enough evidence to prove the charge beyond a reasonable doubt?  It is less likely that the accused will plead guilty to these types of charges if there is a mandatory minimum. 

Your consideration should be separate.  How difficult the cases are to mount is the challenge for the prosecution, but that is something that we are uniquely interested in doing. 

Senator Champagne:  I am trying to take all the information we have had in the last little while about this bill and to funnel it somehow in my mind to understand it.

At one point we were told to trust the judges.  They will come up with the appropriate sentences.  You do not need to have a minimum sentence.  Leave it to the discretion of the judge. 

You say if we do not have a minimum sentence, some of the perpetrators would say "I am guilty of that" and try to get away with a lighter sentence.  You say if we go to trial, it is difficult to prove the guilt of the person. 

I say, why do we come to this?  People around us, people in the street want this type of minimum sentence.  They say that if you count the time that accused were in jail before the trial, it counts two for one.  Someone who has been found guilty of an offence towards a child or a very young woman for two, three, five years, will end up with a year's sentence or a week; they serve a sixth of their sentence and they are out, or is it a fifth?   I am not a lawyer, as you can see.  I know this is what happens.

We get to a point where we, meaning Mr. and Mrs. Anyone, need a minimum sentence; otherwise people who are guilty will go free and be ready to start again.  I was asked yesterday, "How about lashes, five lashes a week or something like that for the year they are in jail"?

Do you have a problem, as Crown counsel, to get a guilty verdict and convince the judge to impose a very stiff sentence on those people who attack children?  Is that the reason we are getting with people being for the minimum sentence?

Mr. Chaffe:  I do not think I can answer that question.  I do not profess to have any prescience with respect to how individual people feel about the criminal justice system.

Senator Champagne:  It is our job to ask people in the street.

Mr. Chaffe:  I am sure your body is far more attuned to that than I am. 

However, in my experience in the criminal justice system, sentences follow facts.  The key thing for a prosecutor and for a judge, when they are seeking a particular sentence in a sentencing hearing, is to be able to adduce sufficient evidence to justify it.

Trials are expensive.  The gathering of evidence is expensive.

Senator Champagne:  It is expensive for people in our society, for my granddaughter or a young person to perhaps be stuck in a situation where he or she might be a victim of trafficking.  This is also very expensive emotionally and financially. 

Mr. Chaffe:  I agree.

Senator Champagne:  I do not think, as Senator Plett was saying, that cost is the right reason to not proceed with a minimum sentence.  Is the financial cost the main reason why you would suggest or hope that Bill C‑268 not become the law of the land?

Mr. Chaffe:  We are not taking a position with respect to Bill C‑268.  We are trying to help this committee with what the impact will be on the ground for front line prosecutors. 

What we anticipate will happen is we will not be able to negotiate a plea on these.  We will go to trial with them.  After trial we will seek an appropriate sentence. 

The frustration I hear from you ‑‑ and we often hear from victims' groups ‑‑ may well be a symptom of a criminal justice system that just does not have the resources necessary to deliver the justice they are expecting.  It may be a symptom also of an absence of knowledge about how the system works, what the facts were and what the sentencing laws are in Canada.  I am speculating wildly at this point, and I can imagine my member organizations across the country flinching with every word I go down this path. 

I do not think I can help you with respect to the source of frustration that you are hearing.  I have a personal view, but I am not here to talk about that.

Senator Champagne:  Allow me to say that I am at a loss when I see that Crown counsel and criminal lawyers both advise against minimum sentences.  You do not say it in so many words, I know that, but allow me the feeling that you were saying something related to, "Are you sure you want to do that?"  I am worried that both sides of the fence are not enthusiastic about this bill.

Mr. Chaffe:  Do not misunderstand our presentation.  If you take anything from this presentation, you should take this:  If this law is passed we will need sufficient resources to carry that law into effect.  That is what we need.

Senator Dyck:  Thank you for your presentation, Mr. Chaffe.  This is a very difficult issue we are dealing with.  All of us are thinking very closely about the victims of human trafficking.  We have all received many letters and email messages from people across the country who are concerned about the trafficking of minors.  They seem to be almost entirely concerned with trafficking for the purposes of sexual exploitation in the commercial sex trade.

My concern is, with mandatory minimum sentences, whether we are actually doing justice for the victims of those who are being trafficked for the sex trade.  That seems to be all the cases that have happened in Canada so far ‑‑ minors trafficked into the sex trade.  Is it fair to them to equate their experiences with those who are trafficked for the purposes of other types of forced labour?  Can you give an opinion on whether you think the offences are similar enough that they should get the same sentence?

Mr. Chaffe:  I am sure that we can all envisage circumstances where there would not appear to be parity between a factual situation and the sentence applied.  With respect to the law as it is drafted, it would appear that forced labour would fit under the legislation.  The goal of the criminal justice system, in terms of sentencing, is to give an appropriate and just sentence with respect to particular facts.  There cannot be much argument that there is less discretion around that with a mandatory minimum.  Apart from that, I do not think I can add much more.

Senator Dyck:  It was also stated yesterday that it is difficult to prove the offence of living off the avails of a person under the age of 18 who has been prostituted.  Would that be more difficult to prove than the offence envisioned in Bill C‑268?

Mr. Chaffe:  It really depends on the facts of the specific case.  I can think of circumstances where it would be and circumstances where it would not.  That kind of question really comes down to an individual case.

Senator Dyck:  Generally speaking, you cannot say that trying to prove the offence of living off the avails of someone who is prostituted under the age of 18 is more difficult, necessarily, than the envisioned offence in Bill C‑268?  There is no guarantee that this law would be easier to prove?

Mr. Chaffe:  Bill C‑268 is more expansive, certainly.  The definition of exploitation appears to afford a more expansive net around certain facts.  I suppose, if that is where the comment came from yesterday, I could understand that.  It is not as narrow as living off the avails, for sure.

Senator Dyck:  One thing you did point out this morning was that having a mandatory minimum sentence then actually might be harder on the victim because the victim then has to appear in court.  Therefore, if the person pleaded guilty to a lesser charge, then the victim would not necessarily have to appear?

Mr. Chaffe:  If there is a guilty plea, the victim would not have to testify.  A victim impact statement would invariably be filed by the prosecution, but that is one of the considerations that prosecutors take into account when they are assessing the strength of their case.  It is one of the considerations that trial courts take into account when they are looking at mitigation of sentence.  That is one of the ways that accused persons mitigate their sentence, by not putting the victim through a criminal trial which, at best, is a very unpleasant thing for a victim.

Senator Callbeck:  Mr. Chaffe, the witness who was here before you ‑‑ I know you were present during his testimony ‑‑ gave us a brief.  In that brief there were a couple of amendments that he felt the committee should consider which we did not discuss while he was here.  I would like to get your comments on them.  The first was a legislative review date.  He mentioned that this legislation should be looked at, possibly in five years, to see whether it is really working.

Mr. Chaffe:  I am not sure that is within my purview to comment on, senator.

Senator Callbeck:  The next one maybe is not for you to comment on either.  It is on a permissible departure clause.  In other words, the judge would be able to depart from mandatory minimums in exceptional cases.

Mr. Chaffe:  I am not going to be very helpful on that either, although I think the Supreme Court has commented with respect to those types of clauses.  The name of the case escapes me at this point, but it is one of the Supreme Court of Canada cases that deals with the constitutional challenge to mandatory minimum cases.  I believe it stands for the proposition that that sort of exception would undermine the purpose of the legislation. 

I cannot elaborate any more than that because I have not read the case in some time.  There is always a chance that I am wrong about that.  If I can find the case, I will be happy to submit it to the committee.  Apart from that, I cannot be of much help.

Senator Plett:  You have said a couple of times that your report here today was not supposed to indicate whether you were in favour of or opposed to this bill.  My suggestion would be that your report has not said very many positive things about the bill, so I would take from that that you certainly are not supportive of it.

Mr. Chaffe:  I would not take that from it.  All we are trying to point out is what the impact will be on the ground of this particular piece of legislation.

Senator Plett:  Let me ask this; Senator Martin tried to ask the question and did not get an answer, and maybe I will not either.  If we had the resources, if we had the money, if that was not an issue and we had the prosecutors – it is hypothetical, I know – would you be a little more supportive of this bill?

Mr. Chaffe:  I take issue with the idea that we are being unsupportive of the bill or supportive.

Senator Plett:  Would you be supportive of the bill?

Mr. Chaffe:  I would have to take that back to the member organizations across the country.  It would be my expectation that we would come back and say this would have little systemic impact upon frontline prosecutors if we had the resources to proceed.  The impact – Senator Plett, please understand my comments – would not necessarily be on the prosecutions under this particular piece of legislation.  It would be our ability to prosecute all those other areas of the Criminal Code that we have to triage away from the criminal justice system to create capacity for human trafficking cases.  That is the point I am trying to make here.  If we stuck by our principle around commenting only on systemic impact, there would not be much of a systemic impact if it was properly resourced.

Senator Plett:  You have said that mandatory minimums will clearly create more trials; more cases will go to trial because you cannot do plea bargains.  My suggestion is that you could still do a plea bargain.  You could tell the perpetrator that if you do not plead guilty, I will go after 10 years instead of 5; that might be a little motivation for him to want to plead guilty.

Mr. Chaffe:  That might be a tactic that I might take in a particular case, but commenting systemically on this legislation, I cannot help you with a response to that comment.

Senator Plett:  It was my observation.  Thank you very much.

The Chair:  Let me throw in one other question.  You are saying that there are cases where, with plea bargaining, a guilty verdict would be entered and a sentence would be worked out that might be two years; but that if there is a minimum of five years, that is more likely – not definitely, given what Senator Plett just said – to go to a full trial. 

The difference between those two scenarios is that the victim does not have to go before the court and go through an agonizing situation in the plea bargain scenario, but if there is no plea bargain because they think they can get off or they do not want to face the five years, then the victim is required to go in.  You are saying that is a more risky circumstance because of the psychological factors, the language factors and various other things such as the memory factors that come into play.  Does that sum up what you have said on that matter?

Mr. Chaffe:  No.  Plea bargaining is a very difficult thing that we have to engage in within our system every day.  It is an appropriate exercise of the discretion we have as Crown Attorneys; and it is something that takes part not just between counsels, but in counsel pre-trials with judges. 

There are a lot of factors that go into a plea bargain.  A reasonable prospect of conviction is one of them.  Whether there is a public interest in prosecuting a particular case is another.  Obviously, the reasonable prospect aspect takes into account all of the frailties of the Crown case, including the strength of a witness and their ability to give evidence in court.  There are a plethora of factors that go into any sort of plea negotiation. 

The bottom line is when I was speaking of risk I was trying to put myself in the shoes of an accused person.  It is a useful way to analyze the impact of some legislation.  It is about managing your risk when you are accused of something.  What are my best chances of success?  I am in this particular situation; if I plead guilty, I will get five years.  Do I want to take the risk?  Do I want to roll the dice that I will get more after a trial when there is a possibility that the Crown may not be able to prove its case beyond a reasonable doubt? 

When we are talking about incentives and the incentive to plead guilty or not, I think mandatory minimums have a powerful impact on the mindset of an accused.  It has been our experience that there will be fewer guilty pleas and more trials.

The Chair:  Mr. Spratt, who preceded you, indicated confidence in the judiciary system.  He said it is not perfect, but there are appeal procedures.  Would you echo those comments about confidence in the judiciary system?

Mr. Chaffe:  Yes, I think we have an excellent group of judges across the country, but they are grappling with the same limited set of resources that every other partner in the justice system has.  It is important for this body to know that if a system is chronically underfunded, it will produce aberrant results.  Those results may cause people to have less confidence in the justice system. 

The prosecutors, the defence counsel and the judges are probably the most public figures in the criminal justice system.  They have to grapple with this really limited set of resources on a daily basis.  I think they, the judges in particular, do a very good job with what they have got.

The Chair:  Thank you very much, Mr. Chaffe, for representing your organization's views today.  It is part of the valuable information we need to be able to make a decision on Bill C‑268.  We will resume our session on Bill C‑268 next Wednesday.  That may be the last session.  With that, I will call this meeting adjourned.

(The committee adjourned.)


 [es1]Editor:  The witness said "unequivocal" but in the context, perhaps it should be "equivocal."

 
 
 
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