Thank you. Good morning, Mr. Chair, and good morning to members of this committee.

My name is Michael Spratt and I'm a criminal defence lawyer. I practise locally here in Ottawa at the firm of Webber Goldstein Abergel. I'm here today on behalf of the Criminal Lawyers' Association. As you may know, the Criminal Lawyers' Association was founded in 1971 and is made up of over 1,000 criminal lawyers with membership across Canada. It's a great pleasure to be here to provide our input on this important bill.

The CLA supports legislation that's necessary, fair, constitutional, and supported by the evidence. With those principles in mind I can say we certainly support the intent and the goals of the legislation, but I would like to discuss a few areas of concern that we have with regard to the wording, and then some potential implementation problems.

With that in mind, by way of example I'd like to deal specifically with clauses 1 and 2, dealing with section 161 orders and the mandatory probation conditions.

First, dealing with clause 1, the bill seeks to add the option of a geographical restriction between the offender and the victim. Clearly, there is nothing wrong with that in principle at all. The condition is not mandatory; it shall be considered and it may be applied. The Criminal Code indeed allows the judge discretion to add conditions or exceptions to that geographical restriction, which is a positive in our view.

I suppose the logical issue is where the two kilometres came from. I agree that having the option of imposing a geographical restriction such as this is important and is something that judges should consider. But if a judge can exercise discretion about exceptions and conditions, why can a judge not exercise discretions with the imposition of the actual number in terms of the geographical limitation? Certainly, some cases may call for a shorter distance, and some cases may call for a greater distance. Judges know the facts of the case, they know the circumstances of the offender, and indeed, under our sentencing laws, they must consider the input of the victim. These sentencing judges are people who are in the best position to impose the appropriate geographical restriction, whether that be 500 meters, one kilometre, two kilometres, or more.

Now, in our submission, there's always a problem with legislation that is overly specific and then applied generally. That can lead to some problems in both implementation and enforcement. The more flexible approach is the one that we support, and that is general legislation that then can be applied to specific cases through the lens of judicial discretion. A blanket two-kilometre boundary may be too large in small towns due to the size of the town.

There, of course, exists the problem in large cities too, that a two-kilometre radius may be too large, covering hundreds of thousands of people and many locations. That's especially true when we're considering that many programs that are located in urban areas designed to assist in rehabilitation of offenders, which is in everyone's interest, are often clustered together. One of the best examples of that is here in Ottawa.

The Criminal Code provides that judges will have the ability to add exceptions to the conditions. However, having a two-kilometre or a specific geographical radius, and then seeing that it's a problem and adding exception after exception to eliminate the problem is not an ideal solution. A situation like that results, quite frankly, in more error-prone sentencing with more uncertainty, and ultimately it makes the condition much more difficult to enforce at the back end. It would be preferable, in our submission, to utilize judicial discretion to cure those problems. Quite simply, judges should be able to impose geographical consideration that is supported by the evidence and demanded by the facts of the case. That geographical exception should not be decided in a vacuum, but in the courtroom itself.

Moving on to the probation conditions in clause 2, this clause directs a mandatory no-contact provision between the offender and the victim or witnesses or other people identified. Again, it's positive that there is an exception built into this mandatory order. Now, section 732.1 of the Criminal Code already allows for imposition of conditions such as this, although not mandatory in nature. In most cases, and as a busy criminal practitioner, I can tell you that these conditions are routinely imposed by the courts. For example, in domestic cases there is always victim input sought, and if there's a desire by the victim not to have contact, a no-contact condition is imposed. I've never seen the opposite happen.

In robberies, break and enters, frauds, and even thefts from big-box stores, there are almost always provisions that prohibit contact between the offender and the victim, whether that be a person or a big-box store. Even if a victim does want to have contact with the offender, what we see in the courts now is that a no-contact condition is still imposed, with the exception of cases where the victim provides a written and revocable consent.

Quite frankly, from my perspective given what I see in court, the proposed amendments are not completely necessary.

A more practical issue to consider is the language of the exception that is present in the legislation. The exception provides that the victim, witness, or other person gives their consent and that an exception can be built in. The question is, does the consent need to be provided when the condition is imposed, or can that consent be provided at some later date? For example, can the condition be that you don't have contact except with the person's consent, and that the victim can provide consent at the time sentence is imposed and then revoke it later, or alternatively, that the victim cannot provide consent until some later point? That's an issue that I feel needs to be clarified.

I take the latter approaches as probably being the correct interpretation. I'm assuming that the interpretation of the drafters is that the victim can provide consent or revoke their consent, not only at the time when the sentence is imposed but going forward. That seems to make sense since it provides flexibility and, ultimately, puts control in the victim's hands. It would eliminate the sort of absurd scenario of a victim providing consent at the sentencing time and then not wanting to have contact later, but not being able to revoke it because a condition is imposed. That is an interpretation point that may need some clarification.

Ultimately, what we're looking at is a Criminal Code that is already a very cumbersome and weighty statute. The question has to be asked, if these measures are being put into place, if the flexibility already exists, do additional conditions or mandatory conditions need to be added to the Criminal Code? Of course, that's a matter for Parliament. But in my opinion, judicial discretion and its exercise are already achieving a pretty good balance in that regard.

I'll now briefly talk about reasons. Subclause 2(2) requires the court to give written reasons. It's been said by some that courts aren't required to provide a reason for imposing conditions, but that's not entirely true. It's true that there is no statutory duty in this case built into the Criminal Code to mandate that reasons are applied, but there are common law duties and the courts are required to give reasons for important decisions. I would submit that departing from a mandatory condition, or using discretion not to exercise a condition sought by a prosecutor that relates to contact with victims, is the sort of situation that would require courts to give reasons at common law. In that light, I don't think that the amendment contained in subclause 2(2) is really necessary.

More practically to the point--and I appreciate there's a difference between parole boards and trial courts--when you're dealing with trial courts the requirement for written reasons is unnecessary. Oral reasons should be sufficient. There's no principled reason why written reasons should be required. I submit that if that proposed section is included, of course adding some extra statute saying that reasons are required isn't going to change the way things are done, but I'd suggest an amendment to allow oral reasons as well.

Oral reasons are given in very serious decisions about guilt or innocence. Oral reasons are sufficient when sentencing someone to lengthy penitentiary sentences. Oral reasons are a matter of record and should be sufficient. That's important in busy trial courts, where taking the time to reduce what one says in writing--indeed, those oral reasons are already transcribed--adds time and delays the process in a way that is really not desirable from any perspective. It is for that reason that I submit that oral reasons should suffice.

Having said all that, I think the intent and the goals of the bill are laudable. I think many of the measures the bill seeks to impose are already happening in our courts.

I would urge this committee to clarify some language in the bill and perhaps look at using judicial discretion, which is already built into some of these exceptions and provisions, to allow a more fine-tuned applicability to the facts of the case, which can take all facts into consideration at the front end.

Thank you.

Transcript

Discussions (0)