JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 16, 1999

• 0838

[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I'd like to open the meeting.

This morning, from the Canadian Bar Association, we have with us Isabelle Schurman, chair of the national criminal justice section; and Tamra Thomson, who is director of legislation and law reform.

The routine is roughly a ten-minute presentation, followed by questions and answers.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair. Given the limited time that we have this morning, we will try to keep our opening remarks short.

The Canadian Bar Association is a national association representing over 35,000 jurists from across Canada. Amongst our primary objectives are the improvement of the law and improvement of the administration of justice. It is in that context that we make our comments to this committee this morning.

You have a copy of the submission that has been prepared by the national criminal justice section of the Canadian Bar Association. I would like to point out that the criminal justice section comprises both crown and defence attorneys from across Canada. I'm very pleased that Isabelle Schurman is with me this morning, as Ms. Schurman is chair of the criminal justice section. I will ask her to address the substantive issues in the submission.

Ms. Isabelle Schurman (Chair, National Criminal Justice Section, Canadian Bar Association): Thank you for the opportunity to be heard here today. As those of you who have had the opportunity to glance at our submission know, we are vigorously, I would say, opposed to this bill. There are a number of reasons, and I'll try to keep within that less-than-ten-minute overview and cover what are the principal points from our point of view.

• 0840

Those who support this bill maintain that their support is based basically on two things: either that the current sentencing schemes in Canada are too lenient, or that this bill will be the only way an adequate response can be furnished for victims of certain crimes.

In addressing the first of those points—that the current sentencing scheme is too lenient—it is quite simply not true that the current sentencing scheme is too lenient in matters of murder and sexual assault, despite some very extensive media publicity for exceptional or unique cases. In murder, for example, a life sentence doesn't mean a person who is freed after a certain period of time is no longer serving the life sentence. The life sentence is for life. The person remains in the system under some kind of control or surveillance for life.

The parole eligibility in murder matters varies from a 25-year mandatory minimum in first degree cases to a 10-year mandatory minimum in second degree, or even more. I underline that because the Supreme Court of Canada has said in the last few years that there is no need for exceptional circumstances in order for a judge to sentence a person to a mandatory minimum without parole of more than 10 years in second degree murder cases. What's significant to note is that in cases of first degree murder, even though there's an article in the Criminal Code that permits individuals serving a mandatory minimum 25 years to apply to a judge and a jury for freedom after 15 years, many, if not most, individuals who would be eligible to apply for parole after 15 years never apply. The perception from the members of our corrections and conditional release subcommittee is that individuals in that position just know the applications will be routinely turned down or that a jury of their peers from a community in which an appalling and abhorrent crime has been committed will not be sensitive to the idea of these people being freed prior to the 25-year mandatory minimum. So in cases of first or second degree murder, it's just simply not true that the current sentencing scheme is too lenient.

In cases of sexual assault, the bill as it is proposed appears to address itself only to what one might refer to as simple sexual assault. It doesn't appear to address itself to aggravated sexual assault or sexual assault with a weapon. We therefore don't quite understand why the sentencing scheme for simple sexual assault would be seen as particularly lenient or as needing some kind of address that a sentencing scheme wouldn't need for more important sexual assaults. But again, in the area of sexual assault, despite media attention to certain unique and perhaps isolated cases, a review of appellate courts across the country would show this committee that this is a crime that is taken very seriously. Some appeal courts have set starting points of incarceration even though the Criminal Code does not set such starting points of incarceration for persons convicted of sexual assault.

These are reasons why we believe the very first submission in favour of Bill C-251 is unfounded. It is not necessary to look at the current sentencing scheme and to say it is too lenient. It is just not true.

In the consideration of these proposed amendments, it is also important to understand that because a person is eligible for parole, that does not mean parole is granted. In fact, I believe it's in our submission that of some 422 men who were eligible for parole in a certain year-long period, 1.5% were released on ordinary statutory release. It's just simply not true that eligibility for parole means a person is freed into the community.

We feel strongly that any change having to do with sentencing in Canadian criminal law must fit into the sentencing scheme that has been so carefully developed in Canada over such a long period of time and reflects what we are as a society. It has been said so often that it's through the criminal justice system that we see the reflection of the society: how does that society treat its offenders; how does it treat its victims; how does it punish those it finds guilty, and what are the conditions of that punishment?

• 0845

We do not believe that this bill is, as some proponents would say, the only adequate response to needs of victims. As one of my colleagues said before this committee on another piece of criminal legislation a few weeks ago, in addition to being attorneys, we at crown are defence; we are mothers and fathers and sisters and brothers and sons and daughters as well. We are extremely sensitive to the harm sometimes that can never be undone of a terrible crime to an individual. But the principles of the sentencing scheme in Canada look at protection of society; they look at deterrence; they look at denunciation; they look at rehabilitation. We also look at whether the total sentence imposed will achieve those goals in sentencing.

There are principles that have developed over such a long period of time of which we can be justifiably proud in Canada. We believe that a sentence should be proportional to the crime. We believe that if consecutive sentences given to one individual will result in an unduly long or harsh penalty, then the courts should be able to look at that. We believe that the total impact of a sentence must be looked at for the individual and for society.

We have opted against the system that exists in other countries, including the United States in some states, where sentencing is a mechanical calculation. We've opted against it because our system provides a flexibility to look at the offence and to look at the offender and to look at the severity of the offence and that the punishment should fit the crime. But the individual being sentenced must not be forgotten either, if we believe in having a future for Canadian society and if we believe in rehabilitation in some circumstances.

This flexibility that we have so jealously guarded for years allows us to have a sentencing scheme that truly reflects what we wish to punish, who we wish to punish, and how we wish to carry out that punishment.

We would also submit—and I say this not as an aside but perhaps because there are shorter points made in our brief to you—that there are certain constitutional questions that are raised by this bill. One is that any bill that deals with lengthening mandatory periods of ineligibility for parole is going to attract scrutiny and may not pass constitutional muster. The use of certain words in the bill is somewhat unfortunate. The use of the word “event” is not a term that fits well into the current Criminal Code scheme. The Criminal Code uses other terms, but event is not one. It would require a definition or it would require being changed entirely to fit into the Criminal Code as it is.

Finally, after having studied it up and down and inside out, we are not sure we understand whether this bill purports to apply to all types of sentencing or merely incarceration. It's extremely unfortunate that a bill would use the word “sentencing” when referring only to incarceration, as if the only type of sentencing in Canada is incarceration. Canada has struggled to some extent in the last few years to perhaps draw away from this reputation we have of incarcerating more people than in many western countries. We have proceeded with extensive sentencing reform in the last few years, which, if anything, was to broaden the perspective, the possibilities. It's extremely unfortunate to see a bill that in referring to sentencing is clearly referring to only incarceration.

That would terminate, in eight or nine of the ten minutes, the submission that I think the committee wanted.

The Chair: Thank you, Ms. Schurman.

I think we should go for five-minute rounds. We had only allowed a half hour for this panel. Perhaps I'd request questioners to keep their preambles short and their questions direct.

Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, Ref.): I've made note that you said that the sentencing scheme should be a reflection of society, or the sentence should reflect the crime, or that you're concerned on behalf of the offender about an unduly long or harsh penalty. I would suggest, with respect, that the reflection of society as I understand it is not the reflection that is made by the current justice system.

• 0850

Secondly, the person remaining in the system, as opposed to in incarceration, does not really answer the question of public safety. If there is a difference in terms of eligibility for parole between first-degree and second-degree murder, why should we not see the requirement for there to be a difference in the availability of parole for those who have committed multiple murders? An example that was used in committee last week was if the person was driving from here to Toronto and they sped through a radar trap just outside of Ottawa, that would not give them a volume discount that they could continue to speed through every radar trap between here and there. If they went through five radar traps, they would have five tickets.

In this particular instance, if we see already in the justice system that there is a differentiation for release between first-degree and second-degree murder, why would there not be a difference for those who commit first-degree murder, remembering that this offence is something that has to fit through the eye of a needle in order to be first-degree murder? This is probably the most difficult conviction to sustain.

If a person can be convicted or is convicted of more than one first-degree murder, why should their access to freedom, their access from incarceration, not reflect the number of times they committed murder?

Ms. Isabelle Schurman: If my memory serves me, the Criminal Code was amended not so long ago so that for people who had been found guilty of multiple murders they would no longer be eligible to request freedom after fifteen years with a judge and a jury, as would someone who had been found guilty of one murder.

Mr. Jim Abbott: I understand that.

Ms. Isabelle Schurman: That's part of the answer. The rest of the answer is back to something I was mentioning at the very beginning. Just in passing, before I say that, the idea that somehow the current sentencing system offers a volume discount is one I had read in a newspaper interview with someone who is in favour of the bill, and it disturbed me greatly. I don't think the current sentencing system offers a volume discount, and here's why.

The parole board need not free someone who is eligible for parole, and most often they do not. In fact someone convicted of first-degree murder might well be eligible after 25 years, but could well never be paroled, and might not be. In fact the laws have also been changed to allow—and I'm not the best person to speak of this—victims, their families, other interveners to have much more say at the stage of parole. That's perhaps where a lot of this attention should be, because if we change the law to say that we're going to change the principles of sentencing, then we run the risk of perhaps drawing a net too large for what we'd like to do to protect society.

The parole board is certainly taking its responsibilities in that area. You'll see in our submission that relatively few of those applying for parole are actually paroled, and oftentimes perhaps with good reason, depending on the submissions that are made and the circumstances of the cases.

Mr. Jim Abbott: In addition to the issue of safety, which is my primary concern, my secondary concern—and secondary only because we have to prioritize—is that of the victims' families. We take a look at the atrocious situation that happened with our most famous or infamous murderer. I refuse to name him. Because he was missed by section 745, he ended up dragging his victims' families through hell in Vancouver.

Now, if there were another situation similar to that, where they would be caught in this 25-year trap, they would still be able to drag the families through hell once again. Surely we must be putting the interests of public safety and the interests of victims ahead of people who would commit such heinous crimes.

Ms. Isabelle Schurman: I think there's a common consensus on that. There's nobody, either at the Canadian Bar or among any of our colleagues, who's going to say there shouldn't be appropriate concern for public safety in the case of these heinous crimes.

• 0855

What we're concerned about is that the mandatory imposition of consecutive penalties may not address the problems of which you are speaking, whereas in fact an ability to keep people who are in fact a danger detained longer periods may be the answer. And the parole board may be able to handle that quite well without changing the laws of sentencing.

When you speak about this person you will not name—and we're all aware of the identity—there will be situations, the vast majority, that don't fit into that category. That is one of those worst-case-scenario aberration examples, and it's an unfortunate one. With all due respect, the Canadian Bar believes that it should not be taken as being the common denominator, because we will then create a system of law for the worst common denominator and we will draw a net that will bring in serious miscarriages of justice in the future.

The Chair: Thank you, Mr. Abbott.

Mr. Bellehumeur.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I'd like to congratulate you for preparing a document with very comprehensible and succinct explanations on a very complex matter. I think you have managed to give us a good overview of the issue. At the beginning, I was sympathetic to the bill but the more I look at it and the more briefs I read like the one you have given us, the more convinced I am that this may not be the best way of proceeding. It may be a temptation. I understand that it is a legitimate approach but it is a very complex issue.

In your brief you write:

It is the judge's responsibility to shape the global sentence to avoid undue harshness or excessive length and to ensure that the sentence is fit.

If Bill C-251 were adopted along with the principle of cumulative sentences, do you think that a judge about to give a sentence would take this into account and reduce the penalty for each offence so as to end up with the same sentence in the final analysis?

Ms. Isabelle Schurman: That would be possible and we've already seen similar situations occur after the passage of other amendments. As I already attempted to explain, we do have a sentencing system that does of course have some problems but which we can be proud of as a society. A certain time was required to develop this system.

Judges and legal counsel who have worked in this system for a certain amount of time all agree that a number of changes are necessary but generally speaking, they're accustomed to a certain type of sentence for a particular crime. Different courts of appeal have established minimum levels of incarceration for sexual assault even if the Criminal Code does not impose this. From one day to the next these same offenders will find themselves before judges who the previous year were in the habit of giving ten years for a particular offence and now will have to give 20 years for the same offence without even taking into account the personality of the accused or his children and family situation. The subjective aspect is not the only consideration but it is one of them.

I agree with you that there is a risk that this type of situation will occur if from one day to the next, sentences are doubled in certain circumstances without allowing those responsible for the legal system, the judges and lawyers, to take a look at the factors that they have always considered and that make our justice system more humane than certain other ones.

Mr. Michel Bellehumeur: Thank you. I don't have any further questions.

[English]

The Chair: Thank you.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank you both for your testimony and your brief. I haven't read it through completely, but I'm sure it's going to be helpful.

In follow-up to Mr. Bellehumeur's question, in terms of the parole eligibility dates that would be attached even to consecutive sentences of life.... And I do take issue with the suggestion that a life sentence is usually served more than 15 years; I've seen ample examples of individuals who are released far less than 25 years into a life sentence. Is it your understanding that the parole eligibility dates, even in consecutive sentences, would still apply, and would apply at the same rate of discount of time as the current life sentence parole eligibility dates? That is to say, if a person was serving two life sentences, say they got fifty years to life, their parole eligibility dates would still kick in at the same time, given all the other criteria being met?

• 0900

Ms. Isabelle Schurman: The way this bill has been drafted, although it doesn't seem to address it specifically, that's our understanding of what is intended by it.

I don't wish to be misunderstood, but speaking of the numbers of people freed after fifteen years, there are many people who make the application and there are a certain number who are freed. But the statistics do show that in many, many cases the applications are not even being made, and when they're being made it's quite simply not as the media would portray it: that every one that is made is granted by the jury of twelve who are deciding if this person should go into society. I don't wish there to be any misunderstanding with that.

Our understanding, although it's not clear in the drafting, is that in the case of first-degree murder the parole eligibility dates would kick in, as they do now, after the mandatory minimum eligibility. This is why we see the potential for some serious constitutional contestation of this bill, should it become law. Whenever there is an increasing of mandatory minimum delays before parole eligibility, it's often followed, if not always followed, by a constitutional challenge.

Mr. Peter MacKay: Any new law is going to be subject to a constitutional challenge. Let's not kid ourselves. Any new legislation that's drafted is often going to be subjected to a constitutional challenge of one form or another.

Ms. Isabelle Schurman: It may be, but certain things are more apt to bring that challenge. Something that is seen as reducing fundamental justice and minimum delays to be eligible for parole is one of those issues, because it affects freedom.

Mr. Peter MacKay: Sure.

Ms. Isabelle Schurman: Just like reverse onus burdens in criminal law matters is another issue that often attracts that kind of attention, perhaps more than some other kinds of legislation.

Mr. Peter MacKay: Sure. The higher the stakes and the more it could be seen to infringe on an individual, the higher the opportunity for constitutional challenge.

I don't want to be misunderstood either. There is certainly ample example of individuals who serve their full sentence, but there are many who don't. When you talk of proportionality and the often misused phrase of truth in sentencing, the difficulty with the current law, as I see it, when it comes to the taking of a human life or a double-homicide or triple-homicide situation is that there is nothing to reflect in a sentencing hearing an attachment of penalty to crime. That is to say, if you are being sentenced for three murders.... We tend to digress into the worst-case scenarios, but that's really what we're talking about here with Bill C-251; that's really what this particular amendment would be focused upon. There is nothing in the current sentencing law that reflects the fact that if you take a second, third, or fourth life, that will be reflected in the sentence, because the time will be served concurrently, back to back.

In fact it becomes even more perverse. If a person is convicted of a murder in one of these cases where they're released prior to having served their time—and heaven forbid that it happens, but it does—and they're out and kill again while on parole, they will still serve their time concurrently to the time they had remaining on their sentence. I find that obscene.

Ms. Isabelle Schurman: There are two issues there, and if I may I would treat them separately.

On the first of your comments, that in a sentencing hearing, because it's a mandatory minimum, there's nothing to reflect the number of lives, etc., I would likewise say to you that there's nothing to reflect that it's a crime of passion, there's nothing to reflect the situation of the adult child who murders within their own family, there's nothing to reflect—

Mr. Peter MacKay: With respect, that's all heard at the trial.

Ms. Isabelle Schurman: But presuming that the person is guilty of murder as charged, I would say it in both ways: there's nothing to reflect the number of lives; it's a mandatory minimum 25 years, but it's a life sentence. None of the circumstances can be taken into consideration. Sentencing is not discretionary in first-degree murder; it's a life sentence with mandatory minimum 25 years. The parole board is the one that has the discretion after the 25 years to hear all the various parties and decide if this person stays in or goes out.

• 0905

So you're quite right when you say there's nothing, but there's nothing to reflect in any murder situation. It's a mandatory minimum, and that's the meaning of that. There's no hearing, there's no.... It's the law: 25 years before parole, and a life sentence.

Mr. Peter MacKay: Only in first degree.

Ms. Isabelle Schurman: In first degree. And in second degree there are hearings to raise the mandatory minimum of ten years to higher than mandatory minimum of ten years.

Mr. Peter MacKay: But then the circumstances are considered.

Ms. Isabelle Schurman: And then the circumstances can be considered, and are considered.

In the example you give, that is correct. But you cannot put aside as if it's non-existent, with all due respect, the role of the parole board in this. We have a parole board, and we have parole laws that have become stricter and stricter over the last five to ten years. We have a parole board that the numbers show just does not automatically send people back out into the streets.

It's perhaps time that the individuals involved and the communities who don't wish to see certain people free take a very active role at the stage of the parole hearing. No matter how many sentences you put in the law to say it's one life sentence after another and they're all consecutive, the reality of the situation is there are some people who perhaps should never be freed and some people who perhaps should. We must maintain a system that allows us to look at all of the aspects and doesn't mechanically say “We won't even look at you. We'll put you away, lock you up, throw away the key. We won't even look.” We can't permit ourselves as a society to do that and then turn around and say we have a criminal justice system that remains humane.

The Chair: Thank you, Mr. MacKay.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I'd like to make a statement and then hear what you have to say about it.

I understand the purpose of this bill. I think that there are two main motives. First of all, there is the desire to show some compassion for victims. Then, there are those exceptional cases, people who are not named but whom we'll recognize, or people who have committed other crimes when they were out on some type of parole. I can understand all that.

I also understand that it is only human for the mother, the father, the brother or the sister to seek a kind of revenge. But our justice system is not based on revenge but rather on correction, in the literal meaning of the word.

Our justice system must not set out to provide satisfaction to the victims but rather to provide a just sanction. The particular bill we are dealing with has two aspects, there is the human and very understandable one, and the other that constitutes an attack on a system whose basic purpose is to correct a situation rather than to provide vengeance to the victims. Would you please comment on that?

Ms. Isabelle Schurman: It is indeed true that if we decide as a society that revenge is the main aim of our criminal law system, we will be undoing dozens, if not centuries of years of work in edifying a criminal law system more comprehensive than that. As you say, it is understandable that victims want to have their say and feel that their needs are considered but in the Canadian Bar, we are far from being sure that the best way of looking after such needs is by doing away with the flexibility of our sentencing system. Revenge itself may not have its place in sentencing.

The criteria of our criminal justice system, that we have spent years developing, are the protection of society, rehabilitation in certain cases, deterrence, punishment and correction. But as a society we have always taken the stand that revenge does not fit into this criminal justice system. I think it would be a mistake to start giving official recognition to this emotion in sentencing.

• 0910

I tend to agree with you that this bill does contain two poles, on the one hand the very understandable desire to correct certain perceived deficiencies in the system but in such a way that is not only undesirable but will also give rise to problems later on for society because it will have the effect of changing something fundamental in our sentencing system.

Mr. Jacques Saada: Is it your feeling that as a result of this bill, and the understandable desire to serve certain victims, we undergo the risk of creating other victims, not of the same crime or of the same type, but other victims? They could, for example, be the families of those who are convicted or society as a whole. I think that you did make reference in passing to this. Is there not a risk, with this very wide net that you described, of creating further victims in addition to those who were already victimized by the criminal?

Ms. Isabelle Schurman: Exactly, and we are not even talking about the circumstances when the court would have very good reason to consider the situation of the individual who pleads guilty or is convicted; the law will not allow the court to do so. So this would mean creating another category of victims, those who are likely to become victims of a denial of justice when the court does not have any discretion with regard to sentencing and when the time period for parole eligibility has been extended. I agree with you that there is a risk of creating further victims.

Mr. Jacques Saada: Thank you.

[English]

The Chair: Thank you. We don't have time for a second round. I'm going to use my discretion and give the last, very short question to Ms. Guarnieri, and then we'll have to bring the next panel in.

Ms. Albina Guarnieri (Mississauga East, Lib.): Thank you, Mr. Chair.

Ms. Campbell from Correctional Services Canada stated in response to a question from the committee that the evidence doesn't support that there are volume discounts, and you seem to share that viewpoint. However, Ms. Campbell's own statistical presentation to this committee demonstrated the extreme extent of volume discounts in the case of multiple murderers.

Her statistics claim that the average length of incarceration for the main category of 292 multiple murderers will jump from 18.8 years to 45.2 years, were my bill enacted; hence concurrent sentencing results in multiple murderers serving 58% less time than they would if their sentences were consecutive. So I would maintain to you that my bill would eliminate the volume discount.

With respect to sexual assault, Ms. Campbell also provided evidence of the deep volume discounts in the system for sexual assaults as well as for murder. She presented evidence stating that the average sentence for multiple sex charges is 39% longer than for the single charge cases, and each of these cases must involve at least two charges. Hence, I guess I'd maintain that the incremental penalty for a second sexual assault is much less than half the single charge rate.

So what I would maintain to the committee is more of a statement, that Ms. Campbell's own evidence clearly demonstrated that there is presently a volume discount of at least 60%, and likely much more, as many cases involve more than two charges.

My question for our august presenters here is that Mr. Daubney presented the view of the department that the provisions with Bill C-251 with respect to consecutive sentences for murder would in many cases constitute cruel and unusual punishment, and that is the position you have taken.

But would you agree with me that currently there is no legal opinion that has been forwarded on this point, and indeed there doesn't exist a Supreme Court ruling that has deemed any term of parole ineligibility within a life sentence to be cruel and inhuman punishment? Would you agree?

• 0915

Ms. Isabelle Schurman: I'm very sorry but I'm not sure I caught the last part of that. You were saying there's a Supreme Court decision. You're referring to Lyons, I presume.

Ms. Albina Guarnieri: I'm saying it is your assumption that it would be cruel and inhuman punishment. You're not citing any legal case that shows—

Ms. Isabelle Schurman: Thank you. I think what we're saying is that there's a very distinct possibility, if not a probability, that there would be a constitutional challenge, and it's not impossible that the constitutional challenge would succeed. This is because by eliminating an extra 25 years, if I could use the term “window of eligibility for freedom”...this is the sort of situation that the Supreme Court in Lyons referred to as potentially constituting cruel and unusual punishment. So we're concerned, and it's true that certain pieces of legislation attract constitutional challenge. It's actually not true that they all do because there have been times we've come here when we didn't see a constitutional problem with the bill but rather other concerns. This bill has certain other concerns but also constitutional ones.

I would just ask for a moment...I know it was a comment on your part and not a question, but the Canadian Bar Association have a great deal of difficulty with the use of the term “volume discounts”. I wasn't here for Ms. Campbell's presentation; I'm sure I'm aware of some of it and aware of what it would have been. It's a very tricky term to use to refer to volume discounts when calculating how much less than the maximum a person gets for two or three. It's an unfortunate term, with all due respect, because in each of these cases where people are sentenced, with the exception of the mandatory minimum 25-year cases, there has been a hearing, there have been victims come forward, there have been prosecutors, there have been witnesses, and there have been families who have come and testified and talked about what they wish to see in terms of redress for the crime they've suffered. They have talked about what they would like to see happen to this offender, in some cases an offender in the same family, and what they wish in terms of some sense of being heard in the system.

So it's really difficult to just take a series of statistics and say that because there were two sexual assaults here and they got this amount of time, it's a volume discount. I think it's unfortunate because I think it may not reflect the reality of what's happening at the sentencing hearings. I just say that in passing.

But no, in terms of the answer to your question, we believe it very distinctly would be a challenge that it's cruel and unusual punishment to lay by 25 years the possibility of parole eligibility.

The Chair: Thank you. We appreciate your being here this morning. Unfortunately, in light of the constraints of time, we have to move on to the next panel. Thank you for taking the time to come.

Ms. Isabelle Schurman: Thank you very much.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): I have a point of order.

The Chair: Go ahead, Mr. Reynolds.

Mr. John Reynolds: I'd just like to say it's very frustrating when you come here and you can't even get a question. I know we have time restraints, but I was here before a lot of members who weren't even here when we got started and got to ask questions. I would hope maybe in the future, if we tell you we have questions for certain witnesses, everybody could knock down a minute so we could all get our questions in.

The Chair: We'll take that into consideration. You can appreciate, though, that we had two individuals over here. One asked in round two, as well as yourself. Where am I going to go? I chose to go to Ms. Guarnieri, who's sort of independent of us all.

Mr. John Reynolds: I'm not attacking who you've picked to choose the questions for, just that if we're to do our jobs properly as members of Parliament and committees, maybe we have to keep them a little longer than we've planned if we're going to do our job properly. You have witnesses who are gone now and we can't ask them questions.

Mr. John McKay (Scarborough East, Lib.): The other point would be that maybe we could knock down on the preambles. Members go on forever making these grand statements—

Mr. John Reynolds: I just said that if we're told we've only got...if everybody knows ahead of time that you've got questions for the next group, we'd cut it down, I don't know, and just get one question.

The Chair: Also, John, that's the purpose of my remarks when we open the committee, to please keep your preamble down and your questions direct.

Mr. John Reynolds: I know you can't do much about that.

Mr. John McKay: You've got five minutes and the preamble takes up three and a half. What does that leave?

Mr. Jim Abbott: Some preambles are tremendously brilliant, though, John.

Mr. John McKay: Well, really, Jim.

• 0920

The Chair: Joining us now, from National Associations Active in Criminal Justice, it Lisa Addario; from the Criminal Lawyers' Association, Mr. Irwin Koziebrocki; from the University of Calgary, Rainer Knopf; and from McGill University, Christopher Manfredi.

What we would propose to do is perhaps a ten-minute presentation from each of you, followed by questions and answers. I understand there are two briefs, which are in English only. As it is our practice to have briefs prepared in both official languages, I would ask the committee members at this time if they are prepared to accept the briefs in English only, to be followed by receipt of translated briefs in French. Or do you wish to proceed without the briefs being circulated?

Monsieur Bellehumeur, do you have any comments?

[Translation]

Mr. Michel Bellehumeur: What is the present practice?

[English]

The Chair: Our normal practice is not to accept them unless there is consensus amongst the committee. Is there a consensus?

An hon. member: Yes.

[Translation]

Mr. Michel Bellehumeur: No. We can wait until we have copies available in both languages before distributing the brief.

[English]

The Chair: Fine.

Notwithstanding the position taken, please present your presentation, which may follow your brief. Thank you.

Go ahead, Lisa.

Ms. Lisa Addario (Executive Coordinator, National Associations Active in Criminal Justice): National Associations Active in Criminal Justice is a coalition of 19 national organizations dedicated to a socially responsible approach to criminal justice. We seek to involve Canadians in an examination of the root causes of crime, of the relative effectiveness of incarceration, and on the best way to accomplish rehabilitation and reintegration of offenders into our society.

Some of our organizations provide direct service to individuals who are or who have been in conflict with the law. Other members of NAACJ actively promote community-based alternatives to incarceration. Still others engage in criminal justice research. Many of our member organizations receive the financial support of the Department of the Solicitor General. A membership list is attached to this brief for your information.

Members of NAACJ work to prevent crime through social development, while at the same time seeking to increase public confidence in our justice system. We also share a concern to reduce incarceration and to promote international cooperation and collaboration. Through our vision of criminal justice, our members make a significant contribution to the public dialogue about criminal justice policy. We do so by encouraging and enabling collaboration not only within the voluntary sector, but also between the voluntary sector, all levels of government, and the public.

We are very grateful for the opportunity to address the members of this committee on Bill C-251. During my presentation, I will be highlighting the concerns of one of the member organizations of NAACJ in particular, the Canadian Association of Elizabeth Fry Societies.

The Canadian Association of Elizabeth Fry Societies—also known as as CAEFS, for short—is a federation of autonomous societies that work with and on behalf of women involved with the justice system, particularly women in conflict with the law. Elizabeth Fry Societies are community-based agencies dedicated to offering services and programs to marginalized women and girls, advocating for legislative and administrative reform, and offering fora within which the public may be informed about and participate in aspects of the justice system that affect women. Today, there are 23 member societies across Canada.

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To start with, I would like to address the question of whether or not this bill is really necessary. National Associations Active in Criminal Justice—the Canadian Association of Elizabeth Fry Societies in particular—views this bill as unnecessary for two reasons. Firstly, a sentencing judge already has the discretion to decide whether to impose consecutive or concurrent sentences. In fact, there is a wide array of provisions in the Criminal Code and in the Corrections and Conditional Release Act that establish severe consequences for those convicted of committing serious repeat offences. For example, Bill C-45 ensures that new consecutive sentences imposed while an offender is already subject to a sentence will always result in the new parole ineligibility period being served in custody.

Under changes made to section 745, persons convicted of multiple murders cannot access parole eligibility reviews at 15 years. As a matter of policy, the National Parole Board takes into account the offender's criminal and social history, as well as other issues related to the possibility of reoffending, when making conditional release decisions. Full parole is restricted for individuals who have repeated or multiple convictions. These people are not granted full parole without first demonstrating success on unescorted temporary absences or day parole.

Figures for 1999 released by the corrections directorate of the Ministry of the Solicitor General report that the average incarceration time served by an individual given a life sentence for first degree murder in Canada is 28.4 years. This is second in severity only to the United States, where the average incarceration time served is 29 years. In England, by contrast, a person convicted of first degree murder spends an average incarceration time of 14.4 years. In Australia the length of incarceration is 14.75 years.

We also take a view that believes that judges in Canada have traditionally and consistently used their discretion to give relatively severe penalties to people convicted of serious and repeat violent offences. As such, this legislation is not correcting for inappropriately light sentences or early release and is not necessary. What this bill does do is fetter judicial discretion. Judges currently have considerable latitude to create penalties that are tailored to the circumstances of an individual case. Under this proposed bill, this discretion would be removed. National Associations Active in Criminal Justice believes that a judge's ability to consider mitigating factors is essential to an ethical and just system of sentencing. While we support the principle that like cases should be treated alike, the absence of judicial discretion will inevitably mean that unlike cases will get treated alike.

In its 1987 report on sentencing, Sentencing Reform: A Canadian Approach, the Canadian Sentencing Commission recommended that a sentencing judge should be able to take such factors into consideration in mitigation of sentence, including evidence of physical or mental impairment on the part of the offender; the offender's youth or old age; whether the offender acted under duress; and any evidence of provocation by the victim. This bill would not permit a sentencing judge to take account of these and other additional important factors, such as the offender's history of physical or sexual abuse; any history of substance abuse; or the offender's responsibility for supporting family. Only if judges retain the discretion to take account of these factors will they be able to fashion a flexible and humane sentence, and only then will the sentence achieve its overarching purpose as set forth in section 718 of the Criminal Code: to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.

An examination of the profile of women who come into conflict with the law reveals that they are overwhelmingly young, poor, undereducated, unskilled, and frequently the victims of physical and sexual abuse. Of federally sentenced women, 82% have histories of physical or sexual abuse. Many have been emotionally or financially dependent on their abusive partners. Aboriginal women are disproportionately represented in the incarcerated population. At any given time, two-thirds of incarcerated women will be mothers. Most of them are or were sole supporters of their families. Most do not have family support, thus they end up losing their children to the state. Increasingly, we are seeing women with mental health needs being criminalized as the state divests itself of responsibility to provide some of these women with treatment for their disability.

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This bill would not permit a sentencing judge to take into account these specific circumstances or the needs of these women. As a result, it results in an unjust sentence, and it would not contribute to a just society. It is for these reasons that we oppose Bill C-251.

We would also point out that this proposed bill will not remove the exercise of discretion from the criminal process but will only serve to shift it to the crown attorney. If this bill were allowed to pass, it would grant considerably more leverage to the crown in plea negotiations, since the risk of going to trial for an accused person would be prohibitive. Defence counsel and prosecutors routinely utilize excessive charging and the threat of more stringent penalties to encourage individuals to enter guilty pleas to lesser sentences. In fact, in a survey of crown attorneys and defence counsel, that was part of the research prepared for the Canadian Sentencing Commission. Both parties, crown attorneys and defence counsel, were asked for their opinions regarding the best way to reduce unwarranted variations in sentences. The least favourite option of both the crowns and defence—93.57% were in opposition—was a sentencing grid that would reduce the discretion available to a judge to the extent that's present in this bill.

Turning to the issue of responding to victims, there is little doubt that victims of criminal acts deserve better from the criminal justice system than what they have received to this point. Victims deserve more respect and more satisfaction. As the Church Council on Justice and Corrections has pointed out, all Canadians need to commit individually and collectively to addressing this pain and to searching for more meaningful responses in the path to healing. However, improvements to the victim's experience within the justice system should not be confused with a sentencing approach that equates the length of sentence an offender receives with healing the victim's pain.

It's noteworthy that while the Canadian Association of Elizabeth Fry Societies, the Canadian Association of Sexual Assault Centres, the National Action Committee on the Status of Women, and 60 other national women's groups have repeatedly called for a more respectful, accessible, and denunciatory criminal justice process for women and children who are the victims of male violence, they have stopped short of calling for stiffer penalties or for longer periods of incarceration. The women's movement has acknowledged that the goal of equality and fairness does not lie in exacting vengeance.

One of the objectives of sentencing set forth in paragraph (e) of section 718 of the Criminal Code is “to provide reparations for harm done to victims”. While this is an important component of sentencing, it must be balanced against a number of other principles, including the principle of proportionality, mitigation, and a requirement to ensure that the combined consecutive sentences are not unduly long or harsh. The recognition of the victim's rights must be balanced against a societal interest repeatedly confirmed by public opinion polls in the rehabilitation of the offender. This can only be achieved when an incarcerated individual is allowed to participate in community-based programming that is responsive to the individual's needs and is timed to assist their reintegration back into the community. It's our belief that this proposed amendment greatly diminishes the potential for rehabilitation.

The Chair: Ms. Addario, can I ask you to wind up in a few minutes, please?

Ms. Lisa Addario: Sure.

It's our view that this bill would create instability in the sentencing regime and would distort the premise upon which the theory of sentencing is based in Canada. As the Canadian Sentencing Commission has pointed out:

One does not start from the isolated case to determine quantum. One must begin with a whole set of offences and rank them according to their relative seriousness.

In our views, the predominant principle of proportionality in sentencing also requires that we consider the impact of the sentence on the offender.

In closing, we would recall the words of the Canadian Sentencing Commission and encourage the members of this committee to heed its words:

In trying to assess whether a sanction is proportionate to an offence, it is imperative to move from the abstract realm of numbers towards their meaning in real life experience. On paper, 10 years (in prison) may appear to be a small figure. For a person who was sent to prison at twenty years of age and was released at thirty, it means having been deprived of youth. By any standard, this should be considered a severe punishment.

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The Chair: Mr. Koziebrocki.

Mr. Irwin Koziebrocki (Vice-President, Toronto, Criminal Lawyers' Association): Thank you, Mr. Chair.

I'm appearing on behalf of the Criminal Lawyers' Association. I'm the vice-president of that association and also the chair of the legislation committee. For a number of years I was a crown counsel at the crown law office, criminal, at the Attorney General of Ontario. Since the mid-1980s I have practised criminal law on behalf of the defence. My work is dedicated to defence work and mostly appellate work in the court of appeal in the Supreme Court of Canada.

Before I begin, I would like to express to this committee—since I haven't been here in several months—our sincere and deep regret on the untimely passing of your past chair, Shaughnessy Cohen. She was a wonderful person, and it was my privilege to have dealt with her in the past before this committee.

My cohorts and I have been before this committee on a number of occasions and have often complimented the government on its proposed legislation. The Criminal Lawyers' Association, which represents approximately 900 practising criminal lawyers in Ontario, have always attempted to take a constructive criticism approach before this committee.

Shaughnessy Cohen often referred to the Criminal Lawyers' Association as the conscience of this committee—at least as far as she was concerned. Considering that role she has ascribed to the Criminal Lawyers' Association, I must submit to you, on behalf of the Criminal Lawyers' Association, that this proposed piece of legislation offends that conscience.

In our humble submission to you, it smacks of opportunism. It takes advantage of misconceptions that have been fostered and are clearly inappropriate. Instead of attempting to correct those misconceptions, which the Criminal Lawyers' Association suggests is the role of Parliament, this legislation, in my respectful view, takes advantage of those misconceptions.

Upon the second reading of this legislation, the Criminal Lawyers' Association took a rare step for that organization and issued a press release. I've been a member of the executive for at least the last 10 years and I don't recall us ever doing that in the past with respect to proposed legislation. I propose to read to you briefly the press release that was issued on December 3, 1998.

It appears to the Ontario Criminal Lawyers' Association that this legislation is based upon a deliberate desire by certain people to misunderstand what our law says. The punishment for murder regardless of whether it is first or second degree, is life imprisonment. There can be no greater term of imprisonment. That is why Robert Latimer and Paul Bernardo are serving the same sentence—life imprisonment. The only difference between them is when they are entitled by law to ask for parole, not when they are entitled to get parole. They may never be granted parole. That is a decision of the National Parole Board.

We think it is the duty of politicians to educate the public and not take advantage of optics for political popularity. It is unrealistic to try to impose sentences consecutive to life imprisonment. ...it is more irrational and illogical to impose consecutive sentences for only some types of offences, e.g. sexual assault.

It is completely disappointing to see the genuine agony of victims being misused as a license for irrational and ill-conceived legislation. We hope that legitimate sympathies for victims will not cloud the minds of members of parliament. This legislation should be roundly defeated.

That's the position we took in that press release and the position we take before you in this committee.

It is our respectful view that this legislation does not add anything to the various sentencing principles we live by that are entrenched in the Criminal Code of Canada and have been for a number of years.

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We also suggest there is no perceived need for this type of legislation. The Criminal Code, since the Daubney report in the mid 1980s, has resulted in substantial code for sentencing that reflects the various principles of sentencing considered by this House and the courts to be appropriate. It should be remembered that individual cases do not mean the system does not work. It should also be remembered that this proposed legislation will create a harsh regime that will leave no room for rehabilitation and will tend to fill up the jails with people who have perceived that they have no hope.

The murder provisions already dealt with the various situations you have proposed in this legislation. Remember that the sentence for murder is life, and life means life. For serious situations such as murder, there have always existed provisions to prevent abuse. For example, a life sentence in terms of first-degree murder is 25 years in this country, which you've heard is probably higher than any other civilized country.

Parliament, when considering the death penalty a number of years ago, went through the various permutations of what an appropriate sentence would be in terms of what would have been a death penalty case in the past. This House came to the conclusion that 25 years without eligibility for parole was the appropriate limit because this House was told that beyond that point there was absolutely no prospect for rehabilitation.

Unlike as purported by this proposed legislation, a second-degree murder or a second killing does not go unnoticed. First of all, for example, paragraph 745(b) of the Criminal Code says if there is a second second-degree murder, it automatically becomes a first-degree murder. You're looking at 25 years minimum before eligibility for parole. So a second killing clearly attracts an additional penalty under the Criminal Code as it now exists.

Section 743.6 of the Criminal Code allows a judge to order an accused to serve at least half their sentence before they're eligible for parole. That's another method in which the judges can impose a more substantial penalty. Section 745.4 of the Criminal Code allows the trial judge, on an issue of second-degree murder, to increase ineligibility of parole from 10 years to anywhere up to 25 years. That section has been almost invariably used in situations where there are multiple homicides. You don't get 10 years for a multiple homicide; you get more.

I can give you the example of a situation where I appeared in a court of appeal where there was a multiple homicide. A man had killed his in-laws and his wife. It was a second-degree murder, a crime of passion. The court of appeal of Ontario felt the appropriate period of ineligibility in that case was 23 years. So they certainly took into consideration the fact that there had been multiple homicides.

The faint hope provisions of the Criminal Code have made it extremely difficult for those who are involved in multiple homicides. Only the extraordinary cases would find their way into situations where they would receive parole before the 25-year period.

This, in my respectful submission, is a non-issue. At most it will create a sense of hopelessness and a tinderbox atmosphere within the prison environment. I would not want to be a prison guard in a situation where inmates found themselves without any hope and with the feeling that they were effectively going to die in prison. They would have nothing to lose.

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With respect to the sexual assault provisions, the question is, why does this particular offence have to attract consecutive sentences? Why is it centred out? Why do you not pick robbery, or breaking and entering, or carjackings, or home invasions? In my respectful view, there's no logical reason to target this particular offence. It's not like the use of a weapon within the Criminal Code scheme. That attracts a four-year minimum sentence. You must remember that the sexual assault provision you're dealing with in section 271 is not a hard and fast offence.

Since the change in the nomenclature of that offence, the offence covers a great number of situations. It can cover a situation of a strategically placed pinch on a subway or a bus, and it can cover a rape situation. To require consecutive sentences in these types of situations may, in certain cases, result in injustices, and unfortunately may require or may result in a judge adjusting sentences to fit the situation, or even the crown withdrawing charges on guilty pleas to get the right sentence.

In my respectful submission, there are provisions that exist presently in the Criminal Code that take into consideration multiple offence.

The Chair: Mr. Koziebrocki, could I ask you to wind up in a few minutes, please?

Mr. Irwin Koziebrocki: I'm almost finished.

I say to you that there are certain principles of sentencing that are set out in the Criminal Code that reflect the totality principle. In section 718.1, “A sentence must be proportionate to the gravity of the offence”; in paragraph 718.2(b), similar offences receive similar sentences; and in paragraph 718.2(c), if there's a consecutive sentence, that combined sentence “should not be unduly long or harsh”.

In appropriate cases, in serious cases, the judge has various remedies available to him. In section 743.6, a judge may make an order that someone serve half of their sentence before they're eligible for parole, based on the background of that person.

Section 753 is the dangerous offender legislation, which requires an indefinite sentence. Section 753.1 is the new long-term offender provision that provides controls over accused people who have committed either multiple offences or need control in the community. If someone commits a sexual assault offence using a weapon, it's a four-year minimum sentence. The court of appeal and the Supreme Court of Canada, in Shopshire and C.M.E., have indicated that more appropriate, more substantial sentences should be applied, and they have been applied in these types of situations.

In my respectful submission, there are ample provisions within the Criminal Code that can deal with the various situations you set out in this particular proposed legislation.

In concluding, I would like to—and I think I have to—say this, and hopefully I'm wrong in the quotation here. Back in December 6, 1998, a copy of the Law Times quoted the author of this legislation as saying the following. She said opposition to her bill from the criminal bar has been intense. She said:

Before I even put my name on the list of witnesses at the justice committee, the Canadian Bar Association and the Criminal Lawyers' Association had called them.

I understand their desire for repeat business, but I just don't think rapists and killers should get a volume discount, and since I've started on this I have so many people come forward with their own stories of tragedy.

Let me say this. Assuming that's an accurate quote, yes, the Criminal Lawyers' Association did ask to attend before this committee. It is an important issue, and we feel that it is our requirement and duty to make submissions when there is flawed proposed legislation.

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Secondly, I have great concerns with the author's report that our motives are the “desire for repeat business”. This implies an inappropriate self-interest at the expense of the community. I suggest to you that this just isn't so. We do not appear here out of self-interest; we appear here out of a duty to see that we live in a just and humane society.

The Chair: Thank you, Mr. Koziebrocki.

Professor Knopf, please.

Professor Rainer Knopf (Department of Political Science, University of Calgary): Thank you. My name is Rainer Knopf. I'm a professor of political science at the University of Calgary. I teach, among other things, constitutional law and political philosophy.

In the context of teaching and writing in that area, I have had occasion to address the interrelationship between various sentencing and penal principles. It's that aspect of the bill that I would like to address today, and I appreciate the opportunity to do so.

As I understand it, Bill C-251 is based on two interrelated principles—or at least two. One might be called the just desserts or proportionate sentencing principle. It makes an appeal to that. The second is the principle of truth in sentencing. The argument is that consecutive sentences are more proportionate and truthful than concurrent sentences. I want to reflect briefly on both of those propositions, beginning with the just desserts or proportionate sentencing principle.

Let me begin by setting that in the context of what you all know are some of the major principles of our criminal justice system—sentencing principles. The system tries to balance at least four main objectives: first, deterrence; second, rehabilitation; third, incapacitation; and fourth, just desserts or proportionate sentencing. All four of those are important and legitimate purposes. They do, however, not infrequently, come into some tension with each other, and I would argue that when they do it's generally the principle of just desserts or proportionate sentencing that is given at least some degree of priority.

For example, consider someone who kills in the heat of passion. We might agree that this person does not require incapacitation because it was a one-off occurrence and he's unlikely ever to do it again. For the same reason, he has no need of rehabilitation. Moreover, we know that crimes committed in the heat of passion are notoriously difficult to deter. In short, if one consults only the principles of incapacitation, deterrence, and rehabilitation, one might well forgo punishment altogether. Yet we do insist on punishment. Why? Because of the principle of just desserts or proportionate sentencing, namely that the crime deserves punishment in proportion to its seriousness, whether or not that punishment also serves any of the other penal objectives.

In my written submission, to which I hope you'll get access eventually, I have several other examples along the same line, at both the top end and what one might call the bottom end of the sentencing scale, but in the interest of time, let me skip over those. The point of them all is that the just desserts or proportionate sentencing principle generally dominates the other principles. That doesn't mean it entirely displaces them. It doesn't mean it is always completely victorious over them in all cases whenever there is a conflict.

For example, even in cases of first-degree murder, the rehabilitative principle re-enters the picture at 25 years, when parole becomes possible. It's at that point that we say that somebody, if they are rehabilitated, can re-enter society.

Similarly the principle of incapacitation sometimes leads us to incarcerate dangerous offenders for much longer than might otherwise be proportionate to the particular offence they've committed. Nevertheless it is the just desserts principle, the principle of proportionate sentencing, that provides the general standard in light of which those things do appear to us as exceptions.

My claim is that in appealing to the just desserts principle, Bill C-251 appeals to perhaps the foundational principle of our penal system or our justice system. In fact, I probably did not need to belabour that point so much because critics of the bill appeal to exactly the same principle. They do so especially in the context of the totality argument, which holds that if consecutive sentences are imposed, they should not, in their totality, add up to a sentence out of all proportion to the culpability of the offender. To the extent that concurrent sentencing avoids that disproportionality, it's said to be a key component of our sentencing system. So both sides are appealing to exactly the same principle here. Neither side denies the legitimacy and the importance of this principle.

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So let's try to sort this out a little bit. Let me pose a purely hypothetical, very abstract situation. Suppose a judge concludes that somebody guilty of three instances of the same crime deserves a total penalty of, let's say, 20 years' imprisonment. Suppose the same judge, and even the public, considers a minimum of 10 years to be the proportionate punishment for a single instance of this crime. The requirement of consecutive sentencing would require the judge to impose either a 30-year sentence—half as much again as he considers proportionate for the totality—or to reduce the sentence for each offence to six and two-thirds years. That becomes 20, which is one-third less than he considers appropriate for a single instance of the crime.

So under consecutive sentencing, the argument is that judges are forced to compromise their sense of proportionality, either for the single offence or for the totality. To extend the argument further, it is I think that proportionate sentencing is best maintained by permitting judges, in their discretion, to use concurrent sentencing in order to meld the two things. In other words, the judge can now say “I'm going to sentence you to 20 years, 10 for the first offence, 10 for the second offence, and then 10 to be served concurrently for the third offence.” They all still get 10, but the total adds up to 20; three times 10 adds up to 20. You don't give up either one.

But my question is whether this isn't really an instance of wanting to have one's cake and eat it too. Like the proponents of proportionate sentencing, I too am convinced that the law acts not just instrumentally but also educationally through the messages it sends. It's a very important part of the legal system. But I suspect the law's educational messages are effective only when they're rooted in perceived reality and don't violate common sense. Can one really expect to impose a 20-year sentence for three offences without sending the message that each single sentence is worth six and two-thirds years, not 10? One can solemnly claim that each is worth 10. I would suggest the widespread support for this bill suggests that that somehow conflicts with people's intuitions.

In the case of the sexual assault issue—and that's the point of the truth-in-sentencing argument—this truth-in-sentencing argument means treating each subsequent offence just as seriously as the first if they are at the same level and calibre to begin with. If judges wish to do this by discounting multiple offences, they of course retain perfect discretion to do so, though they'd have to be a little more open and honest about it.

At this point, I want to interject something about “volume discounts” because I've just used that term and I've heard it criticized heavily. I think I understand some of the criticisms. They are I think twofold. One is that the term “volume discount” implies leniency, and our system is not very lenient. We have pretty severe sentences in most cases. I would submit, with respect, that this misperceives the issue. The issue isn't whether a sentence for a particular offence is too lenient or not; it may or it may not be. That is a separate issue and worth a separate discussion. The issue is whether the sentence is applied or not, whether it's actually applied.

The second claim against the volume discount argument is that in fact multiple or serial offenders are punished more seriously, more stringently, than a single offender. I'm prepared to concede that, but I suppose my analogy would be that if I walked into a store and bought two computers and paid full price for the first one but the store gave me a half-price break on the second one, I'd be paying more than I would for just one computer; I'd be paying one and a half times as much, but I'd still be getting a volume discount.

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In the case of first-degree murder, the question doesn't arise with respect to the basic sentence, which is life imprisonment. It is true that no one has more than one life to serve for his crimes. It is true that several sentences of life imprisonment cannot logically be served consecutively. That's not the issue. The issue arises with respect to parole eligibility. To repeat what I said earlier, the law gives rehabilitated murderers the possibility of parole, not whenever rehabilitation occurs.... We may conclude that somebody who's been convicted of first-degree murder is rehabilitated after a year or two, or five or ten, but we say it doesn't matter whether you're rehabilitated; the principle of just desserts and proportionate sentencing means you have to serve at least 25 years.

Again, I want to say that whether that's the right number, whether that's too stringent or not stringent enough, is a separate discussion, but it's the decision we've made. So the principle of proportionate sentencing trumps the rehabilitative principle until the 25-year point, and then we say they've been rehabilitated for 10 or 15 years; now you you can apply for parole.

This Bill C-251 simply extends the same idea, the priority of just desserts over rehabilitation. It says that the parole eligibility restrictions of different offences shall be added up, thereby, in many cases, making the sentence of life imprisonment mean just what it says. Can this really be understood to be a disproportionate extension of the totality of the sentence when the sentence is already life? Our law has clearly said that life imprisonment is a perfectly proportional punishment for even one first-degree murder: the first one.

Only if one misstates the actual sentence to be 25 years, not life, could one conclude that adding another 25 years to the parole eligibility period for a second murder amounts to doubling the sentence and making it more disproportionate? It's already life. If the real sentence is less than life, then I think you've conceded something you don't want to concede, and then why shouldn't one double it for a second offence? Nor do I think the dangerous offender provisions solve the problem. Such provisions are very valuable, but they give effect primarily to the incapacitation principle that I mentioned earlier rather than to the just desserts principle. It is indeed important to protect society by keeping dangerous offenders off the street, but again, we keep even rehabilitated murderers, that is to say non-dangerous offenders, in prison for at least 25 years, sometimes well after they've been rehabilitated.

From the perspective of the foundational just desserts principle, whether an offender is dangerous or not is beside the point. A proportionate sentence must be served in either case and for each offence. That's what the principle implies. We weigh and balance it in a number of ways, but that's what the principle implies. So to conclude, discounting—and I believe there is a discount—the punitive weight of multiple offences places the law at odds with itself. When this happens, one of two outcomes, it seems to me, is likely. Either people will acquire a diminished sense of the seriousness of crimes, bringing themselves, their mental image, into line with the sentencing discount, or they will become indignant about or lose respect for the justice system. I don't think either outcome is a desirable one.

Thank you.

The Chair: Thank you.

Professor Manfredi.

Professor Christopher Manfredi (Department of Political Science, University of McGill): Thank you very much, Mr. Chair.

My name is Christopher Manfredi and I'm a professor of political science at McGill University. I'm appearing here as a professional political scientist who's been studying issues of crime and justice, primarily in Canada and the United States, but also on a comparative basis, for approximately the last decade.

The purpose of my presentation today is primarily to address what I think are some of the criticisms of this proposed Bill C-251. To summarize my understanding of those criticisms, I would state them in the following way: that the bill is at best unnecessary and at worst counterproductive or perhaps even unconstitutional. Both of those sets of criticisms I think revolve around the bill's purported interference with judicial discretion. It's that issue I want to deal with, primarily in the context of sexual assault. I think Professor Knopf dealt with murder in a fairly extensive way.

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Let me just summarize the other side of the argument, if I may, for a second. There's a positive argument for judicial discretion, that judges can be relied on to determine just and fit sentences in specific cases; more specifically, that in Canada judges already have discretion to impose consecutive sentences where necessary; and that there are data to suggest that judges are adding on extra punishments for multiple offenders. On the other side there are negative arguments against removing discretion. It results in mandatory sentencing, incarceration rates and costs skyrocket, and the American experience is often used as an example of how this fails. I want to address each of these points in turn and talk a little bit about how I think we sentence, particularly sexual assault.

Let me talk a little bit about judicial discretion in fairly general terms. With regard to Bill C-251, I suppose I would agree with at least one criticism of it, that is, it should probably apply to more than just section 271. But that strikes me as a technical drafting problem that can be easily solved. My reading of Bill C-251 is that it doesn't really affect judicial discretion all that much. At most it affects the judicial discretion that exists under subsection 718.3(4), which provides judges with the discretion to impose consecutive sentences for certain offences. All Bill C-251 does is say that under certain circumstances that discretion is restricted, in the sense that consecutive sentences must be imposed.

It doesn't affect, as I understand the bill, the discretion of judges to sentence, for example, sexual assault. If we take a look at sexual assault three, which has a minimum sentence of four and a maximum of life, it doesn't affect the judges' discretion to impose a sentence for any particular sexual assault between those two ranges. So a judge can look at the circumstances of a particular case and decide this case deserves six years, this one eight, this one five, and so on. It's simply that if there is more than one offence under subsection 718.3(4), the judge must impose consecutive sentences.

In addition, I think even if one were to argue that this affects judicial discretion, there's nothing sacrosanct about the principle of judicial discretion. It's true that the Canadian Criminal Code bases its sentencing scheme primarily on a tremendous amount of flexibility given to judges in their sentencing task. There are a couple of reasons for that. One is that we have a single Criminal Code for the entire country, and judicial sentencing discretion allows judges to impose a bit of federalism into our Criminal Code by tailoring sentences to fit local conditions. As well, it provides an opportunity for judges to take into account mitigating and aggravating circumstances. However, on several occasions Parliament has recognized that there may be times when judicial discretion is perhaps not the best principle to pursue. There may be occasions when it's necessary to limit judicial discretion to ensure that a particular sentencing principle will be applied uniformly across the country.

I counted, just before coming here, at least 12 provisions of the Criminal Code that provide for mandatory minimum sentences. That suggests to me that the idea that judicial discretion can't be restricted in Canada is simply false. Parliament can do it and has done it and has not run into any difficulty doing so.

Also, there is no inherent reason why limiting judicial discretion should be considered a law-and-order policy or a policy that necessarily leads to increased incarceration rates. Limits on judicial sentencing discretion have been adopted in many different places for many different reasons with many different effects. Limits on judicial sentencing discretion have been adopted in such social democratic states as Finland in 1976 and Sweden in 1988. It has been adopted in a law-and-order state like California, it has been rejected in a law-and-order state like New York, and it has been adopted in a relatively liberal state like Minnesota. So many different types of political cultures and systems can decide to limit judicial sentencing discretion.

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As well, there's no necessary reason why limitations on discretion lead to increases in incarceration rates. In Finland, for example, limitations on judicial sentencing discretion were accompanied by significant reductions in prison populations. In Minnesota, the imposition of sentencing guidelines were administered in such a way that prison populations were kept within existing prison capacity. So I think it's wrong to suggest that limiting judicial sentencing discretion leads to the kind of mandatory minimum sentencing three strikes and you're out, prison overcrowding, and cost overruns that one sees in California, where I think that is the case.

Let me turn to the issue of whether or not sentences at least for sexual assault are sufficient and whether this is necessary in order to ensure that sexual assault is sentenced properly. If one looks at data from 1995-96, which is the last year for which we have very good data, on sentences of crimes in provincial courts, which deal with most of these cases, almost 92% of prison sentences for violent offences were for a term of less than two years. If one looks at sexual assault one, the mean sentence was 10.2 months. The median sentence, that is, the sentence below and above which 50% of the sentences fell, was 3.9 months. That means that 50% of those sentenced for sexual assault one received sentences of less than four months. For sexual assault two and three, the mean was 3.1 years, significantly higher. The median was two years. So it did go up for sexual assault two and three, but one can ask whether or not that is sufficient.

If we look at cases from that year in which there were multiple charges, it's true that multiple-charge cases resulted in imprisonment about twice as often as single-charge cases. But I think it's also striking to note that in cases where there were five or more charges, 31% of those cases resulted in no prison sentences at all. It may also be true that the average prison sentence length in multiple-charge cases is 140% higher than in single-charge cases, but that still suggests that the second charge is being discounted to some degree. I don't pass judgment on those; I simply provide them for your information.

Would the requirement of consecutive sentencing in these particular circumstances lead to a charter violation? I think it's absolutely true it would lead to a charter challenge, but it's not entirely clear to me that it would necessarily lead to a decision that these constitute cruel and unusual punishment. In a 1990 decision, Steele against Mountain Institution, the Supreme Court of Canada said that it had set a stringent and demanding test for violation of section 12, and I quote from the decision:

It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter.

That section deals with cruel and unusual punishment.

In that case the court quoted from an earlier decision, the Queen against Smith in 1987, in which it said:

The test for review under s. 12...is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive.

In other words, even excessive punishments may be constitutional under section 12.

To continue my quote:

We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation.

So even if one were to concede—and I'm not willing to do so—that consecutive sentences are disproportionate or excessive, they could still pass constitutional muster under section 12, as I understand the court's decisions in Smith and Steele.

Let me conclude with some comments that I think take up where Professor Knopf left off, and that is the importance of the just desserts principle that applies to this particular bill. The core of the just desserts principle is that sentences should reflect the moral gravity of the offence and the harm caused to the victim. The just desserts principle requires that one make an important distinction between retribution and vengeance. A number of people have commented that this bill injects an element of vengeance or revenge into Canadian sentencing. I think it's true that it injects an element of retribution, but retribution is not the same thing as vengeance, as the Chief Justice of Canada recognized in the M.(C.A.) case.

• 1015

As the Chief Justice said:

Vengeance...represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger. ... Retribution...represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

It seems to me that concurrent sentencing in some circumstances understates the moral gravity of an offence and the harm caused to the victims by those offences by not giving to them the appropriate and just punishment for those particular sentences. So while this may be retributive law, it is certainly not a vengeful law, and I think it's perfectly consistent with the notion that each offence should be measured in terms of its particular moral gravity and the harm caused to the victim.

Thank you very much.

The Chair: Thank you, Professor Manfredi.

Seven-minute rounds. Mr. Abbott.

Mr. Jim Abbott: Mr. Koziebrocki, I have to tell you that in the six years I've been in political life and have sat on a number of committees, I have never been as upset as I am with your presentation. To use your term “respectful submission”, I too will use this term, and my respectful submission to you is that your attack on anybody who would have supported this bill is both gratuitous and insulting.

That being said, I'd be happy for you to respond.

Mr. Irwin Koziebrocki: Well, I don't attack people for supporting a particular bill. If you're talking about the press release that was released by the Criminal Lawyers' Association, it was released by the association and the board of that association. It is not mine in particular. I indicated that it was the position that was taken by the Criminal Lawyers' Association.

We take a view with respect to that particular legislation. We take a view with respect to what we purport is the basis for this legislation. With respect, I say to you that I have appeared before this committee on a number of occasions. I have attempted to present a reasoned approach with respect to various legislation that comes before this committee.

This is a piece of legislation that we feel particularly strongly about. With respect, I suggest it is open to us to say to you that we feel this legislation ought not to be supported by the House of Commons. I would suggest to you that, with respect again, I am entitled to say that to this House.

Mr. Jim Abbott: Well, then, with respect, I have said my piece.

You also bring up the issue of prison guards. I'm sure that in your profession from time to time you would have spoken to them. In the short time that I've had the privilege of being the solicitor general critic for my party, I've had the occasion to speak to a fair number. Regarding the red herring that you wafted under our nose that a prison would be a terrible place if people were going to be incarcerated forever and so on and it would be a terrible place for prison guards, I would suggest to you that, without exception, every prison guard I've spoken to about that issue—and the number would be at least two, maybe three dozen—have absolutely gone in the opposite direction from the position that you state in support of early release.

Furthermore, most of the prison guards have some difficulty—I'm sorry. I won't go down that road.

You've suggested, or the Criminal Lawyers' Association has indicated, that society wouldn't be any safer with the passage of this legislation, but given the statistical fact that paroled murderers are 100 times more likely to commit murder than other Canadians, would you not agree that keeping multiple murderers incarcerated would be a benefit to society and in fact would keep society safer?

• 1020

Mr. Irwin Koziebrocki: There were two questions. One, with respect to prison guards, with respect, I don't consider what I said to this committee as being a red herring. The fact of the matter is that if you incarcerate people and effectively say to them that they are there for life, what do they have to lose? If they are bad people, they will act in a bad fashion. They will have no regard for life. That can only create a difficult situation for anyone who is in that atmosphere, including prison guards.

Mr. Jim Abbott: But may I respectfully suggest that position is not borne out by any interview I have had with any prison guard. That's your position.

Mr. Irwin Koziebrocki: Okay. Second, with respect to whether you keep multiple murderers in for an extra period, of course you do. I'm not suggesting that someone who commits a multiple murder receives some kind of benefit in that respect, not at all. The provisions that are set out in the Criminal Code reflect that and allow for that kind of situation.

I can tell you in my experience, having appeared before the criminal courts for 23 or 24 years, and having practised in the court of appeal on a regular basis, where I have done innumerable parole eligibility cases by way of sentence, in almost every case that I've dealt with when there is a multiple murder, that is reflected in the period of parole ineligibility.

I can't say to you there is a set figure, but there are certain figures that I know apply in terms of multiple killings. With respect to a second homicide, the starting point is 15, and it goes up from there.

Mr. Jim Abbott: It's a slight change of topic, but in your testimony did you also suggest that you didn't understand why sexual offence was isolated and not robbery? Do the people in your association not understand the difference between violent sexual offence, which is what this bill is all about, and robbery?

Mr. Irwin Koziebrocki: Absolutely, we do.

Mr. Jim Abbott: Well, then, I don't understand your testimony.

Mr. Irwin Koziebrocki: Well, then, maybe I should explain it to you.

With respect, sexual assault is a serious crime. No one ever said it wasn't a serious crime. Sexual assault happens to include a number of different permutations, anywhere from touching someone on the breast, for example, in a situation that's inappropriate, which may attract a particular penalty, somewhat less than another situation, all the way up to a forcible rape situation, which would attract a far more serious penalty. There is a variation in that particular offence by the very nature of the crime that's been defined by Parliament. Each case has its own parameters and its own degree of seriousness.

Robbery is a very serious crime. You're using violence to steal something from someone. You can break into someone's house and pummel them and steal their money and worldly goods. That's a very serious crime. It isn't, with the greatest respect, any different in terms of severity, depending on the factual situation, than a sexual assault. Why do you separate out this particular offence under section 271 from any other crime of violence that should be punished and deterred?

Mr. Jim Abbott: I wonder if you could tell me how many people go to jail for unwanted touching, though. We're not talking about.... That is not an innocent offence. I don't want to characterize it that way, but you yourself have said that is a significantly different offence from a violent rape, particularly repeat violent rapes, which is what this bill has to do with.

Mr. Irwin Koziebrocki: Well, it doesn't. With respect, the bill talks about section 271. Section 271 is a sexual assault section. There are other sections in the Criminal Code that deal with violent rapes, the use of force, the use of weapons, the use of threats. Those sections are dealt with in a much more severe manner, and in some cases, as you've heard, there is a minimum four-year sentence to begin with. So we're not dealing with those sections in this particular situation.

• 1025

Let me put a scenario to you where a young girl says her stepfather has sexually assaulted her over a period of two years every night; he did something to her of a sexual nature every night. That would be, by my calculation, 730 sexual assaults. If you gave that person one month for each sexual assault, he would go to jail for 60 years. That's the kind of situation you're talking about with this type of legislation.

Mr. Jim Abbott: Do I have any time?

The Chair: No, you're way over.

Mr. Peter MacKay.

Mr. Peter MacKay: Just to pick up on that last point, I have prosecuted scenarios exactly as you're describing. Most often, you have to agree, they will take a certain time period and assign it, rather than laying a charge for every sexual assault or every crime that took place in the scenario you're describing. So there is no way a sentencing judge would ever be faced with the option of assigning specific retribution or a specific timeframe for every single incident. That's not an accurate depiction of what would happen. The crown wouldn't lay a charge like that.

Mr. Irwin Koziebrocki: I agree with you. The crown would lay one charge of sexual assault covering a period of time, being the two-year period. Then that person would be sentenced, by the present standards, to somewhere in the range of three to six or seven years, depending on the nature of the sexual event. That's what would happen now. But if you proceed with this legislation and consider each transaction or event as a separate crime....

Mr. Peter MacKay: This legislation is not calling for that, with respect, Mr. Koziebrocki. With respect to low-end or level-one sexual assaults, again, I don't think that is the intent of this legislation at all. This is dealing with high-end, aggravated sexual assaults and murder, not the sexual touching you've described. We can agree to disagree on that point.

With respect to the argument you made in response to questions from my friend in the Reform Party about a person serving time in jail, then posing a potential threat to other prisoners or a guard because they have nothing to lose, let's reverse that scenario and say the convicted murderer has escaped, has been given parole, or is on a run of serial murders. What disincentive is there for them to stop? What general or specific deterrent exists if they know any sentence they receive will be served concurrently for any life they take? So your argument of the disincentive to commit further acts while on the inside is even more startling if the person is on the loose, as we saw with Allan Legere in the Miramichi.

Mr. Irwin Koziebrocki: The Criminal Code certainly provides that if you commit a second second-degree murder while sentenced to a first second-degree murder, that second-degree murder becomes and is treated as a first-degree murder. Therefore you're looking at 25 years before you are eligible for parole. That's clearly a disincentive.

The second disincentive is in terms of anyone who finds themselves in that position. The likelihood of them receiving parole in the normal course is probably nil, except in those rare cases where someone has rehabilitated himself or herself to the point where the parole board feels it's appropriate to let that person out, usually in the latter part of life. So those are the disincentives. This particular legislation does not change that particular scenario.

Mr. Peter MacKay: On the principle of concurrent sentencing, I want to read you a quote from a judgment in the province of Nova Scotia.

• 1030

Mr. Justice Ian MacKeigan said this about concurrent sentencing:

A so-called concurrent sentence does not sentence the convicted person to a term of imprisonment at all since it does not require him to serve a single day of imprisonment. A person cannot serve in jail the same day twice, any more than he can be successfully hanged twice. A judge, in imposing a concurrent sentence, is not carrying out his duty.

What the learned judge is saying there is what I think has been quoted here several times: you cannot piggyback a sentence. There isn't a recognition in a concurrent sentence that is being imposed.

Mr. Irwin Koziebrocki: With the greatest respect to the learned justice, that does not happen within the prison system. When there are concurrent sentences imposed, my experience has been that the parole board considers the fact that there has been a concurrent sentence imposed for the purposes of determining parole, not so much eligibility but availability. So if there is a concurrent sentence being served with respect to another unrelated offence, it will factor into the determination of whether that person receives parole and will be considered by the parole board.

Secondly, I agree with the learned chief justice of the Nova Scotia court of appeal that as a general sentencing principle it is the common law—and I expect it is also the statutory law—that consecutive sentences be imposed for offences that are different in nature or are different transactions. That's always been the law we've lived with.

The only issue is you then look at the totality issue in determining what a fit sentence is, having regard for all the circumstances, including the various crimes that were committed, the circumstances of the victim and victims, and the circumstances of the accused person. When there are three crimes worth five and five and five, you may end up with 12 as opposed to 15, because you look at the totality of the circumstances.

Mr. Peter MacKay: But there is no recognition in that of the individual proportionality. I believe Mr. Manfredi used a very apt phrase that concurrent sentences understate the moral gravity of each individual offence. There's no recognition, no real proportionality in that sentencing approach.

I want to respond to a comment that was made with respect to firearms offences. This ties in with the mention of there being at least 12 situations within our current Criminal Code that allow for mandatory minimum sentences. A four-year mandatory minimum sentence for armed robberies or offences of violence using a firearm could result in a consecutive sentence of 25 years. The reason for including mandatory minimum sentences for the use of a firearm is a recognition by the law of the sanctity of human life, or the risk that exists when a person commits an offence using a firearm that they might take a human life.

So if we're willing to put that emphasis on the risk of taking a human life, which would result in minimum consecutive sentences every time, why on earth wouldn't we do the same in terms of consecutive sentences when a life has actually been taken? Wouldn't that reflect the abhorrence for the act of actually taking a human life?

Mr. Irwin Koziebrocki: Is that a question?

Mr. Peter MacKay: Yes.

Mr. Irwin Koziebrocki: First, we impose a minimum four-year sentence for the use of a firearm because we want to tell our community we do not want people to use handguns. Because of the very nature of those circumstances, we want a community that abhors the use of handguns and the violence they can wreak. As a result of that, we provide a minimum sentence, on top of which you can be sentenced for the offence proper. For a robbery with the use of a handgun, you'd get four years.

Mr. Peter MacKay: Consecutive.

Mr. Irwin Koziebrocki: Consecutive.

Mr. Peter MacKay: Because you might kill?

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Mr. Irwin Koziebrocki: But you know, as the law stands now, quite often that robbery sentence gets adjusted to look at the totality of the sentence. That's the reality of the situation. The difference with respect to the murder situation is that there is only one sentence, and the sentence is life imprisonment. And that sentence means life imprisonment. It means you can serve the rest of your life in prison. And on occasion that happens, depending on the circumstances and the offender.

What we deal with is the issue of availability of parole at some point in time, under supervision, to the point where if you do anything wrong you're right back in there. If you offend any of the provisions of the release of your parole—if you drink if you're required not to drink—your parole will be removed and as a result of that you will be serving your life sentence. You remain on that sentence for the rest of your life. You can only have one life sentence.

I hate to say this, but this is the approach. If you're talking about Texas-style sentences where we're looking at multiple life sentences and effectively saying to someone there is no hope, well, that's a road you may want to go down. But my respectful submission to you, given the circumstances in this country and the fact that we regard ourselves as a humane society where we provide opportunity for rehabilitation, it may well be a road you do not want to travel.

The Chair: Mr. John McKay.

Mr. John McKay: Thank you, Mr. Chairman. I don't think I've ever been in a room where there's been so much respect.

I wanted to go back to Mr. Koziebrocki's exchange with Mr. MacKay with respect to some of the more problematic elements of Bill C-251, particularly subclause 1(2). Now, if I look into section 271, it's sexual assault and it's limited to sexual assault. The proposal here is that the “sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment”.

So in the case of 18 charges, which is not beyond the realm of possibility, you're going to be into a situation of offending some sense of proportionality, the principles of proportionality. How is that going to play out in an actual real-life situation? You're the defence counsel and you're defending somebody, and for whatever reason the crown will not withdraw. It has laid, it won't withdraw, there are 18 charges, and there are going to be 18 convictions entered on this series of violent sexual assaults. How is a judge going to deal with that, given that we still have principles of proportionality in our system?

Mr. Irwin Koziebrocki: I beg to differ with Mr. McKay. When I read this legislation, it talks about serving consecutive sentences “to any other punishment imposed on the person for an offence arising out of the same event or series of events”. So my scenario, which I put to you earlier, I don't think is half-baked in that respect, because there is a series of events. Every night this man went down and sexually assaulted his stepdaughter. Your scenario fits within that particular parameter. How will it play out?

It will play out in a distortion of the sentence. Each one of those sexual assaults will be treated probably in an inappropriate fashion, because a trial judge knows that, given the scenario I've given to you, an accused person deserves a sentence of in the range of three to seven years, based on the type of crime that's involved.

• 1040

So he or she knows that. That's been the sentencing principle that's been established by the court of appeal, for example, in Ontario and in Alberta, where they actually set up the parameters for those types of sentences. A judge will then say, “Well, for me to get that range, I'm going to have to give that person six months for each one of those 18 sentences so that I get somewhere within the range.” Is that what you want?

Mr. John McKay: So in effect the “volume discount”, if we're going to use that phrase, instead of being at the rear end gets to be at the front end.

Mr. Irwin Koziebrocki: It gets to be at the front end, absolutely.

Mr. John McKay: The question is, at the end of the day, what did you achieve?

Mr. Irwin Koziebrocki: That's why I suggested to you that this was an optics situation, that we're really not doing anything here that benefits anyone other than some perception, in my respectful submission. I say that because that's what I say in court a lot. Because I go to the court of appeal a lot, I have to be respectful.

Mr. John McKay: I wanted to ask Professor Manfredi a question while he's here. I was somewhat disappointed that you didn't talk about the American experience more, particularly with respect to mandatory minimums and things of that nature, and particularly with respect to drug offences. Americans have declared their “war on drugs” and have ratcheted up mandatory minimums and that sort of thing to levels that offend our sense of proportionality, frankly. Have you conducted any observations with respect to that, and can you bring those observations to play in this particular situation?

Prof. Christopher Manfredi: I think mandatory minimum sentences, like any sentencing principle, if developed and applied in a crude and unsophisticated manner, can lead to some of the results that we see in the United States, which is a drastic increase in incarceration rates. I think the U.S. prison population has been increasing at about 6% per year over about the last five or six years.

Mr. John McKay: Yes, I understand in upper New York state it's basically a growth industry, that the creation of prisons is a—

Prof. Christopher Manfredi: Yes, towns are fighting to get those prisons built there. It's a good thing for the community.

So yes, of course, just as judicial discretion, when improperly applied, leads to results that we would think are counterproductive, so too do mandatory minimum sentences. It's not clear to me that this is necessarily a mandatory minimum sentence. It doesn't set a mandatory minimum sentence for any particular sexual assault, for example. It simply says that whatever the sentence for each specific act is going to be, or each specific conviction is going to be, they must be served consecutively.

I would not sit here and tell you, as someone who studies public policy, that this will not lead to an increase in demand on prison resources. If the figures provided by Ms. Campbell are correct, it would probably require about a 16% increase in adult correctional budgets in Canada.

That's a question that public policy makers have to weigh: is the benefit worth it? It seems to me that if you can achieve a situation in which the moral gravity of each offence and the harm caused to each victim are properly accounted for in sentencing, it may indeed be worth that extra cost. But I'm not going to pretend that this doesn't have resource implications. It certainly does.

Mr. John McKay: I have a final question. If I understand the principle behind the proponents of the bill and those who advocate the bill, it is encapsulated in the phrase “truth in sentencing”. There is a sense in which the justice system is a captive of the bar. It's a captive of the judiciary. Frankly, the citizens are mere bit players, if not irrelevant to the entire system. It's almost a “father knows best” attitude toward the Canadian public, certain elements of which are highly offended by what they read.

Having been in and around the system for a number of years, I'm not nearly so persuaded of that view. Having said that, I understand it, from a perception standpoint. So I'd be interested in any one of your observations as to how to break out of this paradigm.

• 1045

There's an element where it almost looks as if a sentence is like the election of a pope. There's a puff of smoke that comes out of a chimney and there's no element of accountability to the public, who ultimately are the owners of this system. I'd be interested if you have any thoughts that can break us out of this consecutive, concurrent, back and forth—all of that sort of thing.

Prof. Rainer Knopf: If I could maybe kick it off with one quick comment, it strikes me that this bill is trying to get exactly at that issue, and whether it's drafted perfectly or not is another question. I leave that to legislative drafters. It does try to get at that problem by bringing the public's perception of what a proportionate sentence is into line with the actual sentence that is meted out. There are lots of ways of doing this.

I said in my remarks earlier that the issue of the relative severity and leniency of sentences is a separable issue from whether they're actually applied. I think that's crucial. If we decide that a sentence is way out of line, then we should reduce the maximums. It depends on the crime you're talking about. I'm not necessarily talking about first-degree murder here.

It's entirely conceivable that, and this takes us beyond the scope of this bill, we have sentences that are too high, and the consequence is that we sentence people to them but they actually don't serve a very high proportion of the sentence that is officially meted out. That's a real disconnect for people. This is where people get really upset, indignant, and so on and so forth. Somebody is out with one-third, sometimes less, of the time they were sentenced to.

Similarly, if somebody sexually assaults a stepdaughter every night for two years, the public might say, okay, let's conceive of that, as the prosecutors do, as one combined event. He also goes next door and assaults the neighbour's daughter or his niece or something like that; that's another one. Let's not have a volume discount there.

My answer to your question is there has to be some correspondence in the public's mind between what is perceived as proportionate, what is actually meted out, and what is actually served. That's where the disconnect happens. It may in fact be the case that with respect to some crimes we might actually want to reduce the sentences, just to make sure a greater proportion of them is actually served.

The Chair: Thank you, Mr. McKay.

Mr. Peter MacKay, round two, three minutes.

Mr. Irwin Koziebrocki: May I answer that question?

The Chair: A brief comment, Mr. Koziebrocki.

Mr. Irwin Koziebrocki: My comment is that this House has spent a considerable amount of time dealing with sentencing issues. The Daubney report was an extensive application of work to changing the Criminal Code. The real issue here is proper education of the public to know what the consequences are of particular sentences so that they don't go into situations feeling that something is happening that they are unaware of, that the system is overtaking them. If they understood what the sentencing concepts were, what parole eligibility was, what the potential parole was, what their responsibility in that situation was, what they could do in that situation, and where and when someone could receive parole, I think people would be more accepting of the overall scheme.

The Chair: Go ahead, Mr. Peter MacKay.

Mr. Peter MacKay: Mr. Chair, this makes for some very erudite and almost philosophic debate, and I think some of the comments that have been made are very penetrating. John McKay's comment about the disconnect that exists in this country at times, and there is a misconception that results perhaps in the loss of respect for a justice system—I can't help but harken back to the reality for some of these victims.

• 1050

I don't want to dwell on this, but I think Professor Knopf's suggestion that perhaps if greater emphasis was put on an individual recognition of each act or each separate criminal perpetration, some of that might be remedied. But instead of using hypothetical questions or hypothetical examples, I can't help but harken back to real examples. With sexual assault cases in particular, sometimes the outcome is almost worse than a quick and painless death.

Mr. Koziebrocki, I know you have been involved in some absolutely heinous cases, almost to the point where you have to desensitize yourself. When, as a prosecutor, you're faced with trying to lump these types of cases...and I have to take some issue with the comment that was made by Ms. Addario about prosecutors, if they're given more discretion. I wrote down the phrase you used. I believe it was if you shift the discretion to the crown, there was a risk in losing perhaps some of the objectivity, because crown prosecutors routinely use overcharging techniques to coerce plea bargains. I happened to see Mr. Koziebrocki even raise an eyebrow to that comment. I don't think it's happening to any great extent in this country. There may have been a time, but I don't think it is happening to any great extent in this country at all. There are always bad examples of poor prosecutorial discretion, but to suggest that it's routinely happening in this country I think is a gross overstatement.

Ms. Lisa Addario: May I just clarify. I didn't use the verb “coerce”, Mr. MacKay. I used the verb “encourage”. There is a difference. The difference involves an element of free will and a real, viable option. But the fact is that as a former crown myself, I know that charging practices sometimes involve casting the net rather broadly and then paring it down. Sometimes it gets pared down before you enter into plea negotiations and sometimes it gets pared down while you're in plea negotiations.

Mr. Peter MacKay: Each and every charge has to be based on reasonable and probable grounds.

Ms. Lisa Addario: I don't disagree with you, but I know the practice sometimes involves charging more broadly than you ultimately end up proceeding with.

Mr. Peter MacKay: Fair enough. Point made.

The Chair: Thank you, Mr. MacKay.

Mr. Jim Abbott.

Mr. Jim Abbott: Ms. Addario, with the Elizabeth Fry Society representing the interests of women prisoners, and this bill affecting nearly exclusively a male category within corrections for multiple murderers and rapists, and particularly because the victims of these criminals are largely women and children, I'm rather curious, how are the interests of women inmates advanced by your comments, which would effectively block this bill that would stiffen penalties for people who have raped or murdered more than one woman?

Ms. Lisa Addario: It has not been the position of the Canadian Association of Elizabeth Fry Societies, nor has it been the position of the other national women's groups who consult on a regular basis on violence against women and children, and do so within the context of law reform and legislation, that the goal of equality is advanced by stiffening penalties and handing out harsher sentences.

Mr. Jim Abbott: You don't feel that there are situations where society, the safety of the people you represent, would be enhanced with the more permanent incarceration of these males offenders?

Ms. Lisa Addario: Public safety is always the number one criterion of the parole board. So the parole board has the jurisdiction. It has an overwhelming interest in ensuring public safety. But to stiffen penalties against a population of offenders who are often marginalized in their circumstances has not, to the Canadian Association of Elizabeth Fry Societies nor to the national women's movement, seemed like an appropriate response to meet their needs and to further the broader communal goal of reintegration and rehabilitation.

• 1055

Mr. Jim Abbott: Has the Elizabeth Fry Society ever supported any stiffer penalties for any criminal offences?

Ms. Lisa Addario: I'm not familiar with the body of policy that the Canadian Association of Elizabeth Fry Societies has responded to or has acted on over the years. I can tell you, though, that in the last four or five years, where pieces of legislation have come forward like the anti-stalking legislation, also known as the criminal harassment bill, like the DNA data bank legislation, and even like the firearms legislation, like the other national women's groups, the Canadian Association of Elizabeth Fry Societies has not supported that reflection of stiffer penalties or harsher sentences.

Mr. Jim Abbott: I think I've asked this before, but I want it to be crystal clear. You're suggesting it would be the position of the society that keeping people who have been convicted of violent offences incarcerated, thereby keeping away....

Let me start from a starting point in my office. I had a very tearful woman, her mother and her sister in my office. They were scared spitless of the immediate or forthcoming release of a person who has perpetrated terrible, unspeakable violence against them and their family. They did not believe for a second that this individual will not come after them. As a matter of fact, they were convinced they would. And you're saying that from your perspective that's fine, there's no advantage to those people in my office. Is that what you're saying?

Ms. Lisa Addario: I wonder if you could relate your comments more specifically to the nature of this bill, because I don't think I completely understand what the implications are of what you're saying within the context of Bill C-251.

Mr. Jim Abbott: Within the context, there were a number of violent sexual offences interspersed over a period of time by this individual. By the consecutive sentencing, this individual would continue to be incarcerated for a longer period of time. That is the whole point of this bill, the safety of my constituents sitting in my office. I have this vision of these three women in my office, and you're saying that's okay—

Ms. Lisa Addario: Sex offenders convicted of multiple charges already receive more severe sanctions. The average sentence is already longer. I think it's somewhere between 35% and 40% longer for multiple sex charges than for a single sex charge case.

Mr. Jim Abbott: Thank you, Mr. Chair.

The Chair: Thank you, Mr. Abbott.

Mr. Saada.

Ms. Albina Guarnieri: I believe Lisa Addario referred to NAC, and I want to resubmit a letter that I've already given this committee that says NAC does in fact support my bill in principle. I don't know if you're aware of that.

The Chair: Ms. Guarnieri, can we just proceed with the hearing?

Ms. Albina Guarnieri: Yes.

The Chair: Mr. Saada, please.

Mr. Jacques Saada: Thank you very much.

We can argue of course at great length about all these legal principles and about the pros and cons of having longer sentences and so on, but I think there is one thing that, in very layman terms, I must say. It seems to me that the deterring effect is totally nil.

Let's imagine for one second here. We're talking about combination of sentences and combination of eligibility periods and so on and so forth. Do you think someone who is committing a crime somewhere is going to think of all the details, knows all these combinations, complex calculations and so on and so forth? The deterring effect is just not a factor in this regard.

A voice: I wasn't talking about it. I was talking about—

Mr. Jacques Saada: No, I'm looking at you, but I'm not referring to you. I've heard the statement made on deterrents.

Also, in very plain terms—and please correct me and enlighten me—if we apply the principle that for each victim you should have a retribution for each one of the things you do, which I understand is already taken into account in our principles...but to the extent this bill is proposing to do it, how would you apply this principle to a genocide? Fifty thousand people have died because of one criminal. How would you apply the same principle here? I would like to know. Please help me out.

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Prof. Christopher Manfredi: Let me deal with the first part about deterrence.

I don't think either I or Professor Knopf argued that this bill would necessarily increase deterrence. One has to make an important distinction between the utilitarian and normative purposes of punishment. Deterrence is one of the utilitarian purposes, but we need to have a mix of both utilitarian and normative. I think this bill speaks to the issue of incapacitation, which is a utilitarian purpose, and as we've argued, it speaks to the issue of just desserts, which is a normative purpose. From a “just desserts” position, the issue of whether or not a punishment deters is in some sense irrelevant. The issue is whether this is the proper punishment for the moral harm caused by this particular crime. If as a result of imposing that punishment you also get some deterrent utility out of it, that's even better. So I think to speak about deterrence is to shift the issue.

On the issue of how you apply it to genocide, in terms of the comments I've just made about the distinction between utilitarian and normative purposes of punishment, let me put it this way and perhaps put it in a slightly different context, which is why we continue to pursue Nazi war criminals and war criminals from Yugoslavia.

You can't really justify that on any of the normal utilitarian grounds of punishment. Do we really think pursuing Nazi war criminals in Canada today will deter any person who wants in the future to commit genocide? Probably not. If we look at another utilitarian purpose of punishment, rehabilitation, these are individuals who can't be rehabilitated. They probably still believe that what they did was right, so there's no rehabilitative value in punishing them. In terms of incapacitation, most of these individuals are already very old, and they're unlikely ever to commit any kind of act like this or perhaps any other criminal act at all.

So on all of the utilitarian grounds of punishment, in fact, it really makes no sense to pursue those kinds of people. It only makes sense on a normative basis of punishment, which is to say that this is such a horrendous, heinous act that it needs to be punished whether or not it has any kind of utilitarian impact. This is simply the morally right thing to do. So that's the way I would respond to your question. I have my own view of what the punishment should be for genocide, but that's not before this committee at the moment.

The Chair: Ms. Guarnieri.

Ms. Albina Guarnieri: I just have one very quick question for Mr. Koziebrocki. I'd like to go back to the point you made in response to Jim Abbott's question about situations where there's no hope for the inmates. That's a very commendable notion you have, that we want to be humane and rehabilitate these individuals, but if they're too dangerous for the prison guards and if you eliminate hope, are they not too dangerous to be found at your corner milk store?

Mr. Irwin Koziebrocki: I think we're talking about people who are going to be serving very substantial sentences at the very least. If we're talking about people who have committed murder, the likelihood of their seeing the light of day outside the prison walls substantially diminishes, as the nature of the crime suggests. So what we're talking about is people who in the long run will only be seeing the light of day probably in their twilight years, given the situation we now have in the Criminal Code.

If you ask me if someone who was convicted of first-degree murder should be at your corner store six or seven years down the line, I would say to you absolutely not. That would not only offend me but it would frighten me. If you say it to me 25 years hence about someone who is in their fifties or sixties and it has been shown that person can be rehabilitated, that based on the various things the parole board might do in terms of getting someone back into the community it has been shown that person can be a constructive member of the community in his or her later life, that may not offend me nearly as much. In fact, it might show that we are a humane society and that we're prepared in certain circumstances to forgive people for crimes they committed in their earlier life.

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The same goes for someone who is 17 or 18 years of age. Are we talking about putting that person in jail for the rest of his or her life? That's a devastating concept, to think that someone who may have acted in a most horrendous or precipitous manner at that age, and who when they reach 50 or so have a different perspective on life, will never see the light of day.

Ms. Albina Guarnieri: Do you believe, sir, that it is just that the 14 rapes of Bernardo don't go to trial, because it doesn't make a difference to his sentence?

Mr. Irwin Koziebrocki: You're asking me about a specific case. Do you think—

Ms. Albina Guarnieri: Is it just?

Mr. Irwin Koziebrocki: Is it just in the circumstances? I don't think the word “just” is the appropriate word. The considerations are this: Mr. Bernardo was sentenced to life imprisonment. Mr. Bernardo was found to be a dangerous offender, meaning, effectively, he will never see the light of day given the circumstances in this case. Is it just to put those eight people in the witness box, to force them to go through a trial and through the anguish that type of trial would put them and their families through, and to have their matters aired in public? I'm not so sure that's necessarily just in that circumstance.

Ms. Albina Guarnieri: But for those who wish—

The Chair: This will be your last question, Ms. Guarnieri, please.

Ms. Albina Guarnieri: I have so many questions.

But for those who wish to pursue justice, do you think it's just? If one of the 14 rape victims wanted to pursue it, is it just that this individual does not get to have a hearing and that their pain is not reflected in the sentence?

Mr. Irwin Koziebrocki: I would suggest to you that in Mr. Bernardo's case that wasn't the case. When he was found to be a dangerous offender, it was based on the fact that he had committed a number of crimes, including those offences you described. Under our sentencing provisions those people were entitled to put their scenario before the court. They were entitled to put their victim impact statement before the court. They were entitled to have whatever cleansing or catharsis that comes with that kind of thing put before the court and to know that when the court made its decision to declare him a dangerous offender, their situation was considered and part of that reasoning. I would think that when the effect of the sentence is an indeterminate sentence with a likelihood in his case that he will never be released, in that respect they did effectively have their day in court.

The Chair: Thank you, Ms. Guarnieri.

Thank you, panel. It has been a long morning, and we appreciate your input.

We'll take roughly a three-minute break while the new panel comes in, and then we'll proceed, because we're falling behind schedule.

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The Chair: I'll ask the members of the committee to take their seats so we can proceed again.

I'd like to welcome this morning, from Life Line Concept, Mr. René Durocher and Glen Flett; from the Church Council on Justice and Corrections, Rick Prashaw; from the John Howard Society, Christine Leonard; and from the St. Leonard's Society of Canada, Elizabeth White.

I understand you all have a presentation. Our routine is roughly ten minutes per presentation, but I understand there is a video you'd like to show, so I'm going to have to include that within your presentation. I'm going to have to hold you to your time very closely.

I understand that Christine Leonard will lead off.

Ms. Christine Leonard (Executive Director, John Howard Society of Alberta): The John Howard Society is a voluntary organization that offers services to communities in over 60 locations in Canada. We're concerned with crime in our communities, and we respond to this concern by offering services that include school-based education, parole supervision, young offender open custody facilities, victim offender reconciliation programs, halfway houses, employment readiness, literacy programming, and intake and counselling services. Because of our lengthy history working on crime and prevention issues in our communities, we also are active in research and reform to our overall system.

We're grateful for the opportunity to be here today to discuss Bill C-251 with you.

I apologize: I submitted my brief this morning, and it is only in English. I was a last-minute substitution for my national executive director. While I work for the John Howard Society of Alberta, I am here today representing the John Howard Society of Canada.

In the years since the work of the Canadian Sentencing Commission, there have been numerous bills, consultations, and discussions about the purpose and principles of sentencing. We reflected back on all of this work when we responded to Bill C-41 a few years ago. We were encouraged by the inclusion of the purpose and principles of sentencing and the changes to the code implemented by Bill C-41.

The purpose and principles should act as a touchstone for grounding and guiding our discussion and debates about sentencing in Canada. The point of enshrining purpose and principles is so that we have a basis upon which to evaluate the impact of ad hoc sentencing bills such as Bill C-251. In consideration of Bill C-251, the committee should reflect back on the detailed work of the Canadian Sentencing Commission and the statement of purpose and principles adopted a mere four years ago.

The purpose of sentencing, according to the Criminal Code, speaks to contributing to a safe society through the imposition of just sanctions. The achievement of the purpose of sentencing must be demonstrated by perceptible social benefits, according to the Canadian Sentencing Commission. Therefore we must ask what the benefits are to our society of consecutive life sentences. Is it necessary to increase the length of sentence beyond the 25-year minimum to achieve increased safety for the community? The answer is no.

We know that lifers do better in the community upon release than many other types of offenders. Even American states that have life without parole or sentences in excess of a normal lifespan of a human being have had to implement backdoor release mechanisms to deal with costs and crowding issues. For these reasons, the John Howard Society is not convinced that there are perceptible social benefits to consecutive life sentences. There is no purpose to these proposals beyond mere punishment, and punishment for the sake of it alone is not recognized in law as a purpose of sentencing.

In addition to a discussion of the purpose of consecutive life sentences, we must debate how these proposals relate to our stated sentencing principles, principles that took years of discussion to develop and enshrine. Principles guide us in understanding how much sanction is appropriate in any case. The fundamental principle of sentencing is that it must be proportional to the gravity of the offence and the degree of responsibility of the offender. Other stated principles address the need to vary the sentence based on mitigating or aggravating factors, which reminds us that we value flexibility in responding to individual cases. The principles also state that consecutive sentences should not result in a combined sentence that is unduly long or harsh.

It is the contention of the John Howard Society that consecutive life sentences that could go beyond the normal lifespan of an individual would indeed be unduly long and harsh.

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The adoption of fantasy sentences such as 50 or 75 years before parole eligibility redefines the notion of proportionality to one of the equivalence of pain. In this new definition, the pain of the punishment must be proportional to the pain inflicted by the offence. Let's carry this equivalency definition further with an example. If you murder three people, you get three life sentences, to be served consecutively. By this definition, if you steal a chocolate bar, you should get a one-dollar fine.

When you attempt to take this equivalency of pain notion and apply it to other circumstances, it does not appear to be a rational premise for sentencing. It does not apply well to other types of crime. Therefore, it is not congruent with our rational, principled, comprehensive sentencing policy that we recently adopted.

We already have in Canada one of the harshest sentencing regimes for first-degree murder. In a comparison among 16 industrialized nations, the average time before parole eligibility or sentence review was 9.5 years. In Canada it's 25 years, or 15 years if they're eligible for section 745 review. Among the 16 countries the average incarcerated time served for first-degree murder is 14.3 years. In Canada, based on statistical expectations, it should be approximately 28.4 years.

The only country that has longer time served than Canada's projection is the United States, which has a few states that have life without parole. The average time served there is 29 years—not that much longer than Canada's expectations.

The John Howard Society submits that Canada should not be proud of its second-place showing on this issue, and we should certainly not be implementing measures that would make us a leader among nations in unnecessarily harsh sentencing policy.

As a final point, Bill C-41, implemented many years ago, put in an overall sentencing theme that was not only based on firm principles, but was rational, coordinated, and comprehensive. Ad hoc legislation such as this further confuses and complicates sentencing policy. The public will not find it easy to understand what offences have mandatory consecutive terms and what offences don't, or the circumstances under which consecutive terms are given.

Finally, we wish to highlight the dangers inherent in the recent changes regarding private members' bills. It was easy to predict that a great number of private members' bills would deal with justice issues. Our concern is that a great deal of this committee's time, resources, and agenda will be taken up by private members' bills that are likely to suggest ad hoc changes to our comprehensive and principled sentencing and correctional system. This committee, by its nature, understands the justice system better than most. It will be up to the standing committee and members of Parliament to carefully weigh the impact of bills such as this and withstand the pressure to adopt the simple solutions.

We urge you to listen to the advice of your own justice department in their assessment of Bill C-251. They highlighted recent changes to the Criminal Code and Corrections and Conditional Release Act that have already addressed the concerns in this bill. Acceptance of a bill such as C-251 is dangerous for what it sets in motion in terms of subsequent bills that leapfrog each other in their punitiveness.

You must be the forum that upholds principles of sentencing by not accepting this bill.

Thank you.

The Chairman: Thank you.

Mr. Flett, go ahead.

Mr. Glen Flett (Executive Director, Long-Term Offenders in the Community; Life Line Concept): Thank you very much.

My name is Glen Flett, and I'm very honoured to be here to speak before you today. I'm speaking for the Life Line Concept, but I also come as a lifer myself to this committee. It's therefore very humbling to be here.

It struck me this morning when I got out of bed that it was 21 years and 11 days ago, in Ontario, that I committed my horrendous offence. It was a day much like this, with the snow on the ground and the clouds in the sky. I truly remember that very clearly today, and it is affecting me in some ways, so I hope you'll bear with me if I'm a little shaky.

I came to argue against this bill because one of my biggest concerns is the way it removes denunciation of the crime of murder, or at least the life-sentence denunciation of the crime of murder. I am currently doing a life sentence of 14 years minimum before eligibility for parole. I believe that sentence is life, and not 14 years. I currently have been out in the community for the last nine years on that sentence, and I find that my sentence has been harder here in the community than it was in prison. I've had to face the consequences of what I did.

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I have three older children and they grew up while I was in jail. When I got out I had to face how much I had victimized my own family. Not only that, I also had to face the fact that my victim had four children and I left them fatherless.

I was honoured to be allowed to look after my aging father when my mother prematurely died. She didn't prematurely die, she was 82, but she preceded him. He was bedridden and 91 years old, and I had a chance to look after him because I was in the community. I was there on the day he died, and I'll tell you, the second thing I thought about after thinking I was going to miss him was how I had stolen that opportunity from four people, because they weren't able to say goodbye to their dad.

At that time my wife was told she was going to have a baby. She was 39 years old. Two years ago my baby daughter was born, and that gives me four children. It doesn't escape me every day of my life I'm here in the community that I have a great responsibility, and it was a heinous thing I did.

However, under this law that's proposed today, Mr. Flett wouldn't be on the street—I probably wouldn't be here before you. My original sentence was life with a 20-year minimum and a one-year consecutive sentence for contempt of court. That occurred during a Brinks robbery, and an innocent man was shot while we were leaving. He wasn't the Brinks guard. So it was an event that happened concurrently with the original robbery.

I would have been given at least a 15-year sentence for that, because I had a previous record. I obviously would have been given a serious sentence. I would have been given seven more years, and that would have given me a 28-year minimum sentence before eligibility for parole, and I wouldn't be out today.

In the last nine years...I am not trying to say I can make up for what I did, but I have truly striven to show people I am sorry. We created a society called LINC that helps prisoners get out, and we're now aligned with the Life Line Concept.

We have two victims on our board because we truly believe we need to somehow reach out to victims and help them resolve the pain we've caused them. We truly believe there's some way we can give back to the community and make it a safer place. I believe the people I work with in prison—I now do work in the prison quite regularly—need hope. They don't need hopelessness.

I heard here today somebody talk about these violent men, and if they were so violent, why would we let them out anyway? But right now, as we speak, there are about 230 men locked up at Kent Institution. Only 60 of them are lifers. That means their attitude, hatred and vengeance are affecting all those other men, who will be released into our communities. We have to think about the effect that has on the overall protection of society.

Also, I really believe there are opportunities. I've worked with some men—and some of them were sex offenders, by the way. I'm not an expert on sex offenders, but while I was in prison I often condemned sex offenders. Today I work with them. I found it very difficult at first, but I've often looked into those cases and, in the end, questioned who the victims really were.

These people have been abused greatly, and it's a lot more complicated than just punishing people to stop them from behaving like that. Sometimes, with sex offenders in particular, punishment only provokes them to do more offences because that's why they were offending; they were abused when they were children.

We're starting to look at arbitrary laws. This is an arbitrary law that limits the current system, which in my opinion is really adequate.

I read through this pamphlet on what I could and couldn't say here today, and noticed there's nothing I can say here today that could send me to court. You can't charge me for anything. But if any one of you phoned my parole officer afterwards and said I threatened you during this hearing, I would be in jail this afternoon. That would happen, I guarantee it. That's the kind of system we have.

I see my parole officer once a month and I see a psychologist once a month. I've been out for nine years. I don't mind seeing him, by the way. I believe that's a good thing for the community and I want to help the community be safe. I believe most lifers I work with feel that way too.

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I don't want to dismiss this or make it sound awful, but most of you, very luckily, have never killed anybody. It's easy for you to sit back and say they don't really feel sorry. Believe me, the majority of the people I work with feel very deeply sorry about what they've done. If we could take it back, we'd do it.

If this were a debate right now and I were asked to come before you to argue against capital punishment, even for my own sake, I'm not so sure I'd be here today. I'm not so sure I'd argue against capital punishment. I'm probably going to live for another 40 years in the community and have to face up to the responsibilities of what I did.

I'm going to do it. I'm not going to go back. I'm not going to turn around and go back to the old way I was, because I know the only way to honour my victim and make up for what I did and the horrendous hurt I've caused—not only that one victim, I've had many victims—is to always be here in the community, not in jail hiding away.

Believe me, many times in the last nine years with some of the crises I've gone through, I've thought about going back to jail and hiding away. Luckily, my wife has stood beside me and said, “Listen, you have to have more courage than that. You owe people out there something and you have to give back.” I am giving back to the best of my ability. I hope this law will be struck down so it won't prevent other people.

If you read my file, you would say Bill C-251 was very appropriate for me, yet I hope you don't limit the potential of people in prison to help in their communities.

Thank you.

The Chair: Thank you, Mr. Flett.

Mr. Durocher, do you have a brief comment?

Mr. René Durocher (Senior In-Reach Worker, Life Line Concept): Yes, sir, I want to thank you for having given me the privilege of walking free in this country again. I'm an old guy. I look around the room and there just aren't too many people older than I am.

I came from a system in the 1950s and 1960s. The system has changed, and I believe it has changed for the better. I spent over 22 years of my life in jail and created thousands of victims. I was a bank robber from Montreal who used to walk into banks shooting all over the place and asking questions after. Why didn't I kill anyone? I guess someone upstairs prevented me from doing it. He said, because I didn't try.

I grew up with the goal of becoming the best criminal in this country. I am a product of a social issue—poverty. I look at kids now in Winnipeg in 1999, and it is having the same effect. We keep locking them up, as I was. I deserved it; I was a really bad kid—all those kids too. We are building tomorrow's criminals right now.

Every time I go somewhere to speak—and I've spoken about 2,000 times over the last eight years on crime prevention—I hope I can reach one kid at a time who will not go through what I went through, not because of me but because of the victims.

My last crime goes back to July 8, 1985. I robbed a Brinks truck in Toronto. I was proud of myself, but I can still hear the voice of that man screaming “Please, don't kill me!” I knew I didn't want to kill him, but he didn't know. Am I any better than a sexual offender? Is my crime any better? Any crime is bad. Any crime deserves some punishment, but there's a margin between punishment and revenge.

If we look at the justice of revenge, I feel I went through it. I served three sentences of 15 years. I'm still on parole. They did not deter me, because the harsher the sentence becomes the tougher you become also. What makes a human being change is when you start to look at others—who they are and how they feel. You begin to get the feel of this and you realize the wrong you're doing.

I work in Stony Mountain penitentiary and all over Manitoba. I lied a little bit, because I go back to jail every day, but every night I go back home. I work with all those serving life in jail. I have clients who are doing life sentences of 18 and 20 years for one murder.

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Can we say that Bill C-251 is going to change something? The judges are not limited to giving life and 10. They are able to give between life, 10 and 25 years for murder two.

The best provision we have for the really dangerous killer, the serial killer, is section 745. Prior to January 8, 1998, any lifer was allowed to apply for that provision. Since that date, lifers who apply cannot have killed twice. They're not eligible any more. Also, they have to get their cases reviewed by a judge alone, and the judge will decide if they can go in front of a jury or not. If these lifers reach that point, they have to have a unanimous okay from the jury. Before it was 8 out of 12, but now it's 12 out of 12. And this only gives them one thing: the privilege to go in front of the parole board.

The best safety valve we have in this community is the safety valve has been implemented by Parliament. It's the Parole Act. I would suggest to any member of Parliament that he or she should come to Manitoba to attend a parole board hearing for a lifer. You're going to see that the board doesn't release lifers left and right, today and tomorrow. Not one of my clients has served less than 13 to 14 years before he or she can take the first step into the community. Those people are escorted on a temporary absence, and are allowed out for four to six hours at a time, with an escort with them all the time. It goes on like this for years, sometimes more. It depends on how long it takes to get a person to get back into some kind of form of learning to live again.

You take for granted being able to cross the street to go to McDonald's to order a burger. You can't imagine how long it took me to be able to do that. To this day, it's still my wife who has to buy my clothes. It's not because I was a criminal, but because the readaptation to life is unbelievable.

Take a guy who has been in jail since 1974 and is now looking at having a chance to be free. After 25 years, he is not free. He only has the privilege to apply for a parole board hearing, and the board is not granting parole right away, believe me. For the guy who is doing life and has served his full 25-year term, he will never be free before at least having served 30 years. It's going to take five years from his first steps into society until the time he can maybe get out on day parole or full parole. We don't teach a kid how to run; we teach him how to walk.

To end on this, I would like to quote a person who I'm proud to say is my friend, Ms. Wilma Derksen. I've been dealing with her, having done face-to-face with murderers and her in Stony Mountain. I do believe the victim has the right not to vengeance but to a healing process.

If I go back to 1991, at the time when the Conservatives were in power, there was another justice committee headed by Mr. Horner, and I think Mr. MacKay's father was on this committee. In the third recommendation that their committee made, they said the government should take 1% of the criminal justice budget over the next five years and put it into crime prevention. What can we do that's better?

Whatever crime I did, I can never go back. Whoever we kill, we can never bring back to life. But we can deter kids from turning as we did. We will never be free of crime, but we achieve the goal of cutting down every year on any kind of violent crime.

Ms. Wilma Derksen asked me to relate something to you. When I spoke to her on Thursday night, she said, “René, what we need is not harsher sentences; we need to get help for the victims.” She asked me to tell you that. As members of Parliament, you have the power to provide funding to help these people to heal.

In Manitoba, we are beginning a new program with the John Howard Society, restorative parole. For the first time in this country, the victim is going to have the right to come to a parole board hearing to speak. Right up till now, victims have strictly sat as observers. I think it's quite a huge step that we are taking by putting that provision in.

We do not make one right with two wrongs. I can never correct what I did. But if I can help one kid to never do what I did, then I thank you for helping me with that privilege to be free again in this society.

Thank you very much.

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The Chair: Thank you, Mr. Durocher.

Just as a matter of interest, last year the government did set aside a program in which 1% of the justice budget will go towards crime prevention for the next five years.

Ms. White.

Ms. Elizabeth White (Executive Director, St. Leonard's Society of Canada): Thank you.

I'm with the St. Leonard's Society of Canada, which is a voluntary sector organization that promotes the human and humane aspects of criminal justice. Our 13 affiliate societies provide direct services for adults and youth convicted of and at risk of criminal behaviours in 15 cities across Canada. Our national society provides employment services to help individuals to reintegrate in Kingston and in member and policy services from Ottawa.

Our directors are all volunteers, one representing each affiliate society, and four representing community at large interests. For more than thirty years, our range of services has included community information—and we've been talking a lot about community education earlier this morning, as a way of dealing with some of these misperceptions about our justice system—transitional housing for sentenced persons, youth homes, community service orders supervision, substance abuse and employment programs. In fact, from our Windsor house, we originated the Life Line Concept, having a very firm belief that there are many who go through our prison system who have far more to give back than they have to have taken away.

The premise advanced by this legislation—we very much welcome the opportunity to speak to the committee about it, and we thank you for it—is that mandated extensions to our incarceration scheme will better achieve the goals of our criminal justice system than does our current sentencing regime. The proposal appears to be that by making incarceration periods in certain cases always consecutive, and by further restricting parole eligibility, we will satisfy needs.

St. Leonard's Society of Canada believes that our current sentencing procedures and the principles underlying them are generally appropriate and adequate to attain our country's goals. Consequently, we support a responsive rather than rigid sentencing regime once harm has been proven to have taken place. Responsive sentencing requires the acknowledgement that not all occurrences that fit the definition of a particular offence necessarily merit the same penalty for the perpetrator, nor indeed will the punishment necessarily have the same impact in all cases, on either the offender or the victim.

We believe the most effective way to seek the right, just remedy in each situation is through the exercise of judicial discretion. We find that the range of sentences, as determined by precedent and legislative markers, supports the general deterrent effect of the penalty. The balance of the decision-making, as to sanction reflected through the judicial discretion, is to achieve those other goals: denunciation, rehabilitation, opportunity.

There has been a significant increase in the number of offences for which the penalties are now defined by the fact of conviction rather than by a consideration of all relevant factors. There seems to be less emphasis on taking the sentencing opportunity to address factors such as rehabilitation and avoidance of recidivism. As well, our system never has given due consideration to the needs of victims during the criminal law process, and has yet to develop a comprehensive strategy to support them. We join the other witnesses this morning in urging the committee to turn its attention to that fact.

There are two issues that we wish to remark upon this morning. The first is the focus on sentencing and sentence administration through an exclusively offence-based lens; and the second issue is the appearance that prolonged incarceration is an effective justice tool, and the expectations that such an impression may create.

Looking at offence-based sentencing, should the goal of sentencing be limited to the expression of a sanction for harm done? Even that, St. Leonard's would suggest, is less than what is necessary or appropriate. Offence-based sentencing is not always adequate. A particular victim or victim-survivor may feel harm to a greater or lesser extent than another, depending on personal circumstances beyond the ambit of the actual offence. In other words, the context of the victim's life is relevant to an assessment of the impact of an offence. Offence-based sentencing also presupposes that our Criminal Code is capable of such a precise definition of an offence that anyone convicted under a particular section will have acted in the same manner for the same reasons. We do not find human nature to be so predictable.

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Another possibility is that we're saying that only the end result matters. In that case, arguments could be advanced that we need no distinction between manslaughter and murder. Our society, thankfully, has usually chosen to take a broader look at the circumstances of an event prior to judgment.

The use of mandatory minimum sentencing has increased in part as a by-product of the tendency toward offence-based sentencing. We find the implications of that trend to be very troublesome. Justification for the imposition of mandatory minimums includes their purported deterrent effect, their role in expressing social policy, and the need for clear sanctions for criminal activity. A review of the evolution of mandatory minimums shows that when revised, there is a tendency to increase the length of the minimum regularly in order to, hopefully, make it more effective. But the effectiveness of this tool as a deterrent to crime has not been established empirically. St. Leonard's does have an extensive discussion paper on the issue of mandatory minimums, and if the committee is interested, we would be happy to make it available to them.

The goal of the criminal law is to prohibit various harmful acts. The goals of sentencing vary among different sectors of the Canadian population and include punishment and the avoidance of recurrence or escalation of the offending behaviour. The sometimes conflicting goals of sentencing are reflected by the wide range of sanctions we have made available to our courts and corrections systems. St. Leonard's Society firmly believes that retribution is not an appropriate sentencing goal, regardless of what was said by earlier witnesses today. Our mission is the prevention of crime through the promotion of responsible community living and safer communities. To reduce future crime we believe sentences should express social disapproval, but in a manner that will lead to the integration of the offender into society in such a way that there is no recidivism.

Additional goals of sentencing should include elements of accountability to victims in the community. This requires individual assessment in each case.

I refer you to a discussion of this point by Julian Roberts in the Justice Report put out this winter by the Canadian Criminal Justice Association. In the context of some recent initiatives in Alberta, he goes into further detail about the principles and purpose of sentencing and refers to the issues you've been discussing around proportionality and restraint and the failure of mandatory minimums to date to achieve what has been hoped for them by their proponents.

There is a knowledge that with mandatory minimums there is an increased tendency toward the plea bargaining process, and that may well continue to skew any desired results from these changes. This was pointed out earlier by Lisa Addario of the National Associations Active in Criminal Justice.

Turning briefly to the issue of the effectiveness of incarceration, legislation that seeks to ensure increased mandatory periods of incarceration suggests there is reason to believe that social safety will be appreciably augmented by the prolonged use of prison. We don't have research that supports that. There is, however, evidence that imprisonment in and of itself does not reduce recidivism. The findings of Don Andrews and others active in criminological research show that the impact on recidivism is determined by the type and extent of program intervention during a sentence period. Not to be ignored in this context is the fact that for those with few criminogenic factors, too much intervention has been found to be counterproductive, and as well program delivery in the community is found to be more effective for many interventions than is programming in prison.

The trend to mandated lengthy terms of imprisonment seems to arise from a concern that judges will not be punitive enough when sentencing. It ignores the fact that the judge who has been trained to fully assess a criminal offence and who has heard, considered, and weighed all the evidence is clearly in a better position to be responsive to the circumstances of the case than can be effected through reliance on pre-set tariffs. We find this approach to indicate an apparent mistrust of the judiciary to do the proper thing.

There seems to be also an attempt to seek complete certainty of sentencing outcomes and to highlight a denunciation of certain crimes by singling them out within the sentencing structure, making them exceptions to the general rationale. This will not lead to a coherent system, and it begs the question, what is the goal that is trying to be achieved? Will the provisions advanced attain that goal?

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The matter of increased periods of parole ineligibility is an effort to keep specific individuals from having access to community supervised release. Those who are judged to be most likely to reoffend are unlikely to achieve parole in any case. If we seek punishment alone, then perhaps such provisions will be successful for the purpose of punishment.

However, St. Leonard's finds punishment alone to be a poor reason for such a decision. It will not meet the needs of all victims; it will not appreciably increase community safety; and indeed, it is extremely expensive both in dollar and human terms. We can buy more safety for far less by supporting good community supervision. Today you've already had reference to the charts about our standard 28-plus years of incarceration for a murder period, contrasting with a 15-year average in other countries. I don't think I need to do more than state that St. Leonard's finds that rather compelling evidence of the harshness of our system.

We are setting a high bar to reflect our disapproval of killing. We have the means to separate the dangerous from the community already in place. St. Leonard's believes it is unnecessary to create further means to add to imprisonment periods. If we are to have an engaged criminal justice system, we must leave discretion to trained and competent adjudicators to determine when an individual is ready for conditional release.

Our colleagues at the Church Council will be addressing concerns as to the needs of victims that are not being met in satisfying ways, and we support those comments, as we do those of the John Howard Society of Canada on proportionality.

We view the sanction of imprisonment to be most serious, and given its problematic nature, we urge this committee to not favour additional reliance on that punishment. Our experience is that we will create a safer community for all by intervening in pro-social ways and by reserving imprisonment for only the most necessary situations. When we do resort to imprisonment, we must take advantage of that opportunity to decrease recidivism risk and prepare people for community supervision. We don't need further restrictions on release. We do need to maintain a focus on our common goal, which is to have a justice system that will enhance community safety.

St. Leonard's believes this bill would widen the set of circumstances that will confine prisoners without attaining any appreciable gains for our criminal justice system. Our experience with effective corrections compels us to urge the committee—

The Chair: Can I ask you to wind up in a few minutes?

Ms. Elizabeth White: —not to support Bill-251.

The Chair: Thank you.

Mr. Prashaw.

Mr. Rick Prashaw (Communications Coordinator, Church Council on Justice and Corrections): Good morning. For 25 years the Church Council, together with its 11 national denominations and 14,000 church congregations, has been working for a more restorative and reparative approach for everyone harmed by crime. In more recent years we've been challenged to go even further, to become more victim sensitive and victim influenced.

So I have to say at the outset that I find myself in what I consider to be a difficult but authentic position of being for victims but against a bill that has been characterized by some as a victims' bill. Interestingly, René referred to Wilma Derksen, and I will use five of my ten minutes introducing you via video to Wilma Derksen and her work with victims of the most serious crimes in this country, who are searching for a more healing path.

We oppose this amendment, believing it to be a wrong and quite ineffective tool to begin in a meaningful way to get at the heart of what troubles victims and others about concurrent sentences. We respect the sentiment this legislation comes from, but we do not approve of where it would take our country, its laws, and our sense of justice. Rather, we want to promote what we think are other more helpful pathways for getting to where we may want to go in order to help victims in their own right deal with these most serious crimes and tragedies befalling them.

Some victims have told us, understandably so, that a concurrent sentence makes a victim of the second or any subsequent case involving the same accused feel their case has not been dealt with at all, that there is no sentence for the murder of their loved one, that it makes no difference whether someone kills once, twice, three times, or more. For them concurrent sentences do not add up. In these expressions we hear some very important things from victims. They're pleading for answers to questions. They want their loved ones remembered. They want the act of murder or violation recognized, and they want those responsible to be make aware of the painful and personal consequences of what they have done. We want all of this too.

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But we believe that consecutive or cumulative sentences do not add up either. It has been our experience in over 25 years of advocacy that a sentence is the wrong tool to exclusively look for the expression of satisfaction or of justice for victims, or for honouring their loved ones. We also oppose today, endorsing what others are saying about the need for judicial discretion and the need for proportionality, the piling on American-style of sentencing that is taking place in some jurisdictions.

In such cases it makes no difference since early release is more than unlikely, but we suppose this is done, though, on occasion—understandably so for symbolic reasons. But regrettably it only produces sweeping changes in law and correctional policy that catch so many other individuals not thought of in the original intent of the legislature.

All our analysis and our experience with the criminal justice system convinces us to oppose this bill. Not only is it a giving up and perpetuating of violence for prospects of rehabilitation, but we are particularly troubled that it appears to fall into the trap of relying again exclusively on a sentence, and finding just the right number of years to satisfy what can never be satisfied fully, and certainly not in a courtroom and not in a penitentiary. No number of years, be they 25, or 50 or 150, return a loved one or restore innocence. If public safety is being adequately addressed in other ways, what is the point of legislation that, in its extreme, for some can be the expression of an eye for this eye, a tooth for this tooth?

We have walked a path with several victims to somewhat understand—one who is not a victim can never fully understand—the intense feelings present for weeks, months and years after a crime. Those feelings, so human, so natural, so normal, are not the basis of law.

I want to conclude by bringing to the attention of the members of Parliament, in the study of this important bill, the work of several victims groups, one of them being Victims' Voice, which Wilma Derksen will now introduce. She is from Manitoba. Her daughter—I guess over 10 years now—

A voice: In 1984.

Mr. Rick Prashaw: —was abducted and murdered. No one has gone to court, been accused of the crime, or identified as the murderer. That, in a unique way, as Wilma says, has forced her to look for paths, other than the criminal justice system and a sentence, for healing, for justice and satisfaction.

We give you a five-minute excerpt from a much longer speech. I will leave the video with the standing committee for the record. This is her witnessing of her work helping with victims of the most serious crimes in our country.

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[Editor's Note: Video presentation]

Mr. Rick Prashaw: Mr. Chair, can I have one last sentence to conclude the presentation for the Church Council?

The Chair: Sure.

Mr. Rick Prashaw: Victims' Voice promotes a wide range of victim-sensitive healing initiatives, which include community projects honouring the victim's life, mentoring, victim-to-victim connections programs, candlelight vigils, memorial crosses, scholarships and death anniversary grief day cards. We think these are more healing and more satisfying justice pathways, and without judging anyone on any side of this bill, we wanted the committee members to be aware of the diverse pathways various victims and victims groups are taking in the country.

The Chair: Thank you, Mr. Prashaw.

I have a small apology to our panel here that we have a bill dealing with justice issues in the House today, and several of our members are there speaking on it. That's why our quorum is somewhat reduced.

Mr. Durocher, do you have a question?

Mr. René Durocher: Would you give me permission to distribute this? It's strictly in English. All our briefs were in French and English, but I came out with this at the last minute and I was not able to translate it in French.

The Chair: Is there consensus that this be circulated in English and it be subsequently translated?

Some hon. members: Agreed.

The Chair: Yes, sir.

Go ahead, Mr. Abbott.

Mr. Jim Abbott: I too must apologize because I think I'm next up speaking in the House, so I'm going to have to ask my questions and then run.

Ms. White, I notice on page 3 of 6, at the top of the page, you say that:

the use of mandatory minimum sentencing has increased, in part, as a by-product of the tendency toward offence based sentencing. The implications of this trend are troublesome.

Did your organization have the same concern, and would you consider it to be troublesome that mandatory sentencing was included in Bill C-68? That's the firearms bill.

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Ms. Elizabeth White: I'm talking about firearms, am I?

Mr. Jim Abbott: Yes.

Ms. Elizabeth White: I'm talking about four years for a restricted weapon, and does St. Leonard's have a concern about that? Is that your question, Mr. Abbott?

Mr. Jim Abbott: Yes. This is an open-ended question. This is not a rhetorical question.

Ms. Elizabeth White: Okay, sure.

Mr. Jim Abbott: Is your concern about mandatory minimum sentencing about mandatory minimum sentencing or about it as it applies in this instance?

Ms. Elizabeth White: It's about it across the board. Thank you for that clarification.

Mr. Jim Abbott: Okay. Thank you very much.

I must say that of all of the witnesses we've heard, Mr. Durocher and Mr. Flett, for myself, I must tell you that you are the most compelling witnesses I've ever heard. I can appreciate that it must have been exceptionally difficult for you to come, as I'm sure it is every day for you, as Mr. Flett put it so well.

I also find myself in something of a quandary. As a person who has had a conversion experience as a Christian, I can understand Mr. Flett's conversion to Christianity. And yet there is such a skepticism, isn't there, of people who profess that in order to move the goal posts, or move the markers, for themselves.

In answer to your questions on page 4 of your brief, will this legislation deter murderers, the answer is no, I don't think it will either. Will the legislation increase the chances of successful reintegration? No, again. I would agree with that. Will this legislation increase the cost to Corrections Canada? I think it likely could. However, in answer to the question, is this legislation needed, where you've said no I would respectfully say yes. What I'm looking at is taking into account what I just said about people who will profess conversion experiences for their own benefit, or whatever.

Is it not a situation where we are not talking about unbelievably tragic events, like you gentlemen were involved with, where there was a life taken, but we're talking here about repeat, repeat, repeat offences. We're talking about, I would respectfully suggest, a totally different situation from yours. Are we not talking about the safety of the public, at the end of the day? It's not retribution. It's not deterrence. It's safety that I believe is the issue. Would you agree with that, that there is a safety issue here?

Mr. René Durocher: May I ask if anyone feels insecure to have me here this morning? I served 2 years, I served 14 years and 10 months, I served 15 years, and I served 16 years—all consecutively. The first item the National Parole Board looks at before releasing any...not just a person like I used to be. I was classified as a psychopath in the 1970s. They felt that I was so dangerous that if I could not reach the one I wanted to reach I could have harmed myself. I've come a long way.

Believe me, I'm just a token of people like me, who have come back and are in this community and are not a hazard to public safety whatsoever. The job I'm doing in Manitoba—there are 21 lifers and long-term offenders like me who are doing the same thing in each province of this country who are paying that with increasing public awareness. I don't say education, because we don't need to educate the public. We need to make them aware that the criterion the parole board is looking for—the first criterion, and nothing else matters—is public safety, before they release any offender. For lifers, before they can even be looked at for transfer from a medium institution to a minimum, they have to get a psychological assessment and psychiatric assessments done by specialists—before even moving from a medium to a minimum institution.

I do believe sincerely, sir, that if they were able to feel that the public was safe when they released me, I do believe they can release lots of people in this country and we will be safe. This is not to say that some cannot and will never be released, but when we look at the serial killers in this country, if we have one, it's one too many. But when we look at the amount we have in this country, can you name me five serial killers in this country? I don't think so, because two names come up right away, and maybe a third one is Legere in New Brunswick. We have one in Ontario and one who is in Quebec now, but he's from B.C. After that we all stop.

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I can give you an endless list of names of lifers who have reintegrated into our society successfully. They don't have the privilege of doing what Glen and I are doing. They don't have the privilege of expressing publicly what they should, because most of them have regressed so much upon themselves that they have a hard time to speak even privately, much less in public. But they are successful.

If we look at the parole board, if you are in business today or even if you win an election tomorrow and 94% elect you, everyone is going to say, wow. They would never look at the 6% who didn't elect you. But when we look into crime, we look at the 6% who failed, not at the 94% who were successful. And among lifers, of the 6% who fail less than 1% reoffend. I would be a genius if I were able to start a business tomorrow and have that success rate in selling any item in this country or around the world.

When I look at the United States, I don't feel secure when I go there. And I'm allowed to go back into the United States. I guess I have achieved something if the United States has allowed a person like me to go back in their country. But the last time I looked into the United States, with all the tough legislation they have, they were still the most violent country in the whole world. In the world only Russia, and I think it's maybe by 3% or 5%, has higher incarceration. And I've lived in B.C., I've lived in Alberta, I've lived everywhere, and I've been kicked out of every jail in this country.

The first time I travelled in this country was from jail to jail because I was a bad...don't say the word. But I was kicked out all over the place because of what I was doing, the violence I was creating. And I don't think I can do any violence here today. I had a chance to try to look at my life, and there are so many of us who are doing the same thing.

Thank you.

Mr. Glen Flett: One point I'd like to add to this is that to my knowledge, and I work with a lot of offenders getting out of jail now, lifers.... Just recently a mass murderer, or a guy who committed multiple homicides, died in prison. He had a 10-year eligibility and he was sentenced in 1964, and he never saw the street. He died last month and he never was released.

There are other multiple murderers I've worked with. I work with a young man who killed his best friends in a drug stupor when he was 17 years old. He did 15 years and now he's been out on parole for three and is going to university. I've seen that man break down. These were his best friends he killed, and he knows that. They really were his best friends and he lives with that consequence; and the parole board saw fit to release him because he's demonstrated the kind of change that this should motivate.

I have nothing against a life sentence. I believe that's an adequate punishment against murder. That is truly the most severe punishment possible. Again, I'm concerned by us saying we should give multiple life sentences because that somehow says that the first life sentence wasn't significant enough. We have to make it profound, that this is a very serious sentence in our culture, that this is the sentence; and if we don't, then we dismiss it as a sentence to deter or denounce the crime. And not only that, but we miss the point of the victims. I think the Church Council has really made it clear that the sentencing isn't just about how many years you do in prison, but what are you going to do about this whole event that has changed these people's lives, not just for a number of years but—

Mr. Jim Abbott: The person who died in prison, was he the person who committed the murders around Creston, British Columbia?

Mr. Glen Flett: That's right.

Mr. Jim Abbott: Help me, that's my constituency. What do I say to people...? As a matter of fact, a reporter from the paper said to me—I can't remember the person's name—“So-and-so died; isn't that great?” And that's the feeling of the people in the Creston Valley. What do I say to the people to try to put over your perspective, because they're very happy that he is permanently no longer a threat.

Mr. Glen Flett: Again, in his case it was a horrendous crime. I know that man both through my working relationship and because I did time with him too. He did an awful lot of hard time, by the way. Prisoners also saw that as a very offensive crime and he didn't do easy time.

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However, the bottom line is that the parole board, whether he did easy time or not, never viewed it as safe to release that man into the community. In fact, in 1986 I was in Matsqui serving time with him, and he went up in front of the parole board. This was long before any faint hope clause was really debated or anything, and he was doing a 10-year minimum, remember; this wasn't a 25-year sentence. The parole board told him in 1986 that he could pick any medium in the country, but get used to it; that's about as far as he was going to go.

So they told him then—that was 13 years ago—he was going to die in prison. Again, the sentence is life. It's not a number of life sentences, it's one life sentence, and you're there forever unless you somehow manage to get out.

Mr. Jim Abbott: The problem is one of communication. I would say to Mr. Prashaw that in spite of all the things you said today, which I have some comprehension of, having started to study this issue, nonetheless to the people of Creston Valley what you said today is not saleable to them at this particular point. It is a serious communication problem.

Mr. Rick Prashaw: I agree, having heard some people's thoughts on what we say. Your profound question about what you say to me does identify it as both a communication and an education problem. I would hope that rather than these very tempting one-line answers that I guess get publicity for us all, we could engage in a dialogue.

That statement, that I'm glad he's dead, I find totally understandable. To me it's the beginning of a conversation in a community that you as an elected member hopefully could facilitate and at least get coverage by a surprising answer. You might not want to say it the week before the election, but if you could say it two years before the election and be a part of that ongoing education...even to express your anguish. You used the word “troubled” or “anguish” around these issues earlier, and even to hear elected officials say that, I think, is moving the country along beyond the simple answers of the Gallup polls and the newscast announcers.

The Chairman: Thank you, Mr. Abbott.

Mr. McKay.

Mr. John McKay: I'd like to pick up on what Mr. Abbott said about your testimony, Mr. Flett and Mr. Durocher. It's a very compelling testimony. The phrase that struck me, Mr. Flett, most forcefully was that life outside is harder than life inside. I must admit as a person who has never done time inside or outside that struck me as a considerable insight.

We had the dry academics before we had the reality check, and I'd like to connect and ask both of you, on the question of deterrence, if you can, in your mind's eye, go back to the points where you are committing a crime. Does the issue of whether this is a concurrent sentence or a consecutive sentence cross your mind?

Mr. René Durocher: When you go and commit a crime, you will never get caught. The deterrent for me was never a matter. I was raised in the streets of Montreal. At 14 I was using guns to pull armed robberies. You think that by 25 I felt someone could stop me? It was always the fault of somebody if I was getting caught. All my life I blamed everyone for what happened in my life. When I look at where the blame lies, I begin to change my life.

When we look at lifers, take into account that 70% of lifers in this country are people like you. First-time offender—it takes a fraction of a second to take a life, and that's what is sad. If you can just back up and say, “Gee, give me back that fraction of a second”.... And then what do we do? Nothing we can do will bring back that life that was taken or the victim that was created. But I do believe essentially that the community or the society would have lost if I had still been incarcerated over the last eight years. I do believe that I did accomplish something good in my community over the last eight years. I can never change what I've done.

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Mr. John McKay: So your response is that at the point of committing the offence the concept of deterrence, frankly, never crossed your mind because you never believed you were going to get caught. Speaking more broadly to the criminal group you know very well, does the concept of deterrence have any impact on the people you know very well, and would it shape how they would do a crime?

Mr. Glen Flett: Again, I think the concept of deterrence is a very individual thing. George Orwell wrote a good book, Nineteen Eighty-four, that talked about how individuals are touched by individual things. We need to recognize that a deterrent for one may not be a deterrent for another.

I'm not trying to make excuses for the horrendous thing I did. I'll tell you right now the first thing I thought about when I pulled that trigger was that I was going to jail for 15 years and if I could get away I would. I knew I could go to jail for 15 years for sure, absolutely. That didn't slow me down from shooting him and taking a chance of going away for life. I was scared of the deterrence, there's no doubt about it, but under fear it didn't deter me; it actually compelled me to do something even worse or it made me do, you know—

Mr. John McKay: So in effect you made a private bet with yourself.

Mr. Glen Flett: Kind of.

We can't really be sure of what will deter a person in a single-crime incident. I certainly don't think sentencing in itself is a deterrent. There are other things. Imprisonment was certainly part of the deterrence, but my biggest deterrent today from crime is my 20-month-old daughter and the fact that I'm a part of the community I live in and they embrace me.

The community has supported me and trusted me. I mean, the mayor of my town calls me Mr. Flett. I really appreciate that trust. I don't deserve it. The deterrence today for my behaviour is that I wouldn't want to let those people, myself or my daughter down.

Mr. John McKay: My second question is with respect to your own situation, Mr. Flett. You were sentenced in 1980. When did you “get out?” Was that in 1990?

Mr. Glen Flett: I was sentenced in 1980 and was released on full parole in 1992. I started to be released in 1989 under a very stringent gradual release of 24 hours a month for the first six months. I had to be with a community sponsor. It was somewhat like an ETA. I had to be picked up at the institution and dropped off at the institution by the same people. Although they didn't have to be in sight of me all the time, I had to accompany them pretty much all the time.

After the first six months out, I was granted an extension of that program to 24 hours without the supervisor. In the second year I started to get more hours. It gradually got up to 240 hours a month. Then I was given a full day parole. In the last eight months of my day parole period I was given what's commonly called a five and two, which meant I could go home for five days and come back to the prison for two.

During this whole process I saw my parole officer. At the beginning I saw him three times a month, and I saw a psychologist. Then I saw him twice a month, and then I started seeing the psychologist twice a month too. So I was seeing people every week, besides being on day parole and highly supervised. Later, when I was on full parole, I still saw my parole officer and psychologist once a month, and still do to this day. I've been out for seven years now.

Mr. John McKay: People get upset about people just like you because life doesn't appear to mean life. When people think of life, they think of life inside a prison—inside four walls. Clearly life is not life inside four walls.

Can you, for the purposes of the record, tell us what life is going to mean to you in terms of your parole eligibility, your parole supervision, your response to the community over the balance of your life?

Mr. Glen Flett: Sorry, I don't understand that.

Mr. John McKay: You're obviously on a program whereby you're being gradually released into the community. When will restrictions over your release into the community end?

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Mr. Glen Flett: Never. As I say, I've been out for nine years. There are two more levels of supervision they could take off me. The least supervision I can be under is to report once every three months. If I can prove my behaviour for long periods of time, I can ask to have that moved to three months. But before that, I have to go to two months and be on that for a year before they will actually let me go to the three-month point.

Mr. John McKay: I don't think it's well understood in the public realm, certainly not in the media, that life in fact means life. Even at the tail end of your life, shall we say, you will be reporting back.

Mr. Glen Flett: I also don't think the public understands how stringent parole officers can be. I've been out for nine years and I've almost been returned to jail twice for getting into disagreements with police officers—not serious; I argued with them and didn't agree with what they said. They phoned my parole officer and my parole officer threatened to revoke me.

One of the times was when my 101-year-old aunt died and the police came by unexpectedly and started to kind of.... My aunt had just died twenty minutes before this, and I was upset. I realize my parole officer thinks I should be polite to the police at all times, but it was really hard to be polite at that very moment because I was really grieving. She'd been living with us for three and a half years and I was going to miss her, so it was a bit of an imposition.

But the bottom line is, as a parolee I wasn't allowed to grieve that way. I was told by my parole officer it was not appropriate.

Mr. John McKay: Thank you.

Mr. René Durocher: There's one more thing for 99.9% of lifers in this country. You can go home tonight and have a beer, but police can come in at any time and test any lifer, and if he gets caught consuming any alcohol.... I'm not saying drugs, but everyone has the right to drink alcohol. But you can't, because if you get caught you're back in, no questions asked; we'll see you in jail.

The restrictions are there. I think it's one of the biggest public safeguards we have. With what Parliament has put in place with the Parole Act, the court system and the review, I think we are quite safe when we look at the success rate amongst those released in this country.

The Chairman: Thank you.

Ms. Guarnieri.

Ms. Albina Guarnieri: Thank you, Mr. Chair.

I'd certainly like to commend you both for having the courage of conviction to come before this committee.

You make the statement that you can release some people safely into the community. I don't think there's any argument that is the case.

We heard earlier the statement that imprisonment does not reduce recidivism. Last week statistics were forwarded to this committee that attempted to indicate a low recidivism rate for paroled murderers. The fact that five people had been killed at the hands of paroled murderers was presented as a success story to this committee.

For the record, I'd like to note that Ms. Campbell's statistics show that about eight paroled murderers per thousand will commit other murders. Meanwhile, only eight Canadians in 100,000 have committed murders. Hence, the argument I would make is that paroled murderers are 100 times more likely to commit murder than the average Canadian.

It's in this context that they pose a risk that's not to be dismissed lightly. This may seem like a very brutal question that I'm going to ask you, but why should society give the benefit of the doubt to, let's say, someone who has murdered more than one person and be so dismissive of...?

Let me give you an example. In my riding in Mississauga, Wendy Carroll, a real estate agent, had her throat slashed by not one but two multiple murderers, through no fault of her own. It's very difficult to explain to her what these individuals were doing on the street in the first place.

I live in a suburb—it's not downtown New York or Washington—and fifteen minutes away from my riding Joseph Fredericks, a sexual predator, was touted around the schools as the poster boy for rehabilitation, and we all know the tragic ending of that one.

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The girl that was tossed onto the subway tracks, after this individual walked out of his group home saying he was going to murder someone, also came from my riding.

Not far away, in Hamilton...we all know the Don Edwards story. His sister was raped and then the rapist murdered her parents, Don Edwards' parents, and now the family lives in fear of that individual, who's eligible for parole in seven years.

What answer would you give to these individuals, Wendy Carroll, who got her throat slashed, Don Edwards, who has moved his family south of the border because he maintains the border will be his protection? I don't doubt the sincerity of your intent to do good, but why should we give the benefit of the doubt to the individuals who perpetuate so much harm in just these examples that I've cited?

Mr. René Durocher: I guess you have two answers in front of you today. I think we are answers, that we can give benefit of the doubt to people when they really demonstrate change. To the victims, I can only say how sorry I feel about what they're going to go through for the rest of their lives.

On the other hand, we're talking.... Believe me, I'm not an expert on sexual offenders, but in the Criminal Code right now, anyone who is arrested can be charged under DO. The dangerous offender provisions do provide for sexual offenders mainly.

There are 251 sexual and dangerous offenders right now—not all sexual, but dangerous offenders—locked up in Canadian penitentiaries for life. Their chance of getting out are from one to nil in a zillion.

We look at the serial killers we have. I remember a couple of years ago, or even less than that, there was great fear in B.C. because Olson was applying for a section 745. Let me tell you one thing: the ones who raised the most fear about this among the people were aware that he did not qualify for that application. To be able to qualify for that application you have to be able, first and most of all, to function in the population inside of a penitentiary and to do the program like other members of the population. He's been locked up by himself since 1981 when he was arrested.

In a society we are always going to have free acts of violence, and it's sad for any victim, but are we going to turn around every time anything happens...? There's a plane that crashes tomorrow, and the company, Air Canada, is to blame. Are we going to change the law tomorrow? Are we going to change the law if someone steals a chocolate bar?

If I go into your house tonight and I just go through your drawers, I just raped you. I raped the basic fundamental right you have. I went through what you have hidden from even your children; only you and your husband have access to this for all your lives. It's a rape, it's a crime. Does this make it any worse if I rape a woman physically? In my book, I'm responsible for any crime I'm going to commit, and there's not one that's better than another one.

It's extremely hard for you and for anyone to turn to a victim and say you're sorry. Sorry doesn't bring the victim back, but we have to learn right from there to make sure we will not have another person go through the same thing. It's by working as a community, not looking at getting this one out; we have to look at not getting another one in. This means we have to start with our youth right now—we're looking at locking them up at 10 and 12 years old instead of working on crime prevention with these youth—because we're going to build tomorrow's criminals.

I am one of “tomorrow's criminals” that was built when I was 12 years old. Do we want something else like this to happen in our society? It's up to us what we want to do with our society, and as members of Parliament I think you have the first stand on deciding what you're going to do with this provision, or any other provision in this country. It's extremely hard. Maybe Glen has another comment on this, but....

Sorry is a word, it's only a word, but to demonstrate that you really tried to do something better after that...and the only time you can show that is to have that chance to come out and demonstrate that you are willing and capable of doing it.

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Ms. Albina Guarnieri: There's no doubt that many social reforms are needed in this country to address many inequities.

However, you raised the issue of Olson. I attended the Olson hearing, and I was in the courthouse when Olson mocked the court and said, “They can only give me 25 years.” He read from his lawyer's letter telling him to claim all his murders at once so that he would get only one life sentence. Do you think it's fair that someone could kill 20 people and get the same sentence as you might get? Do you think the bulk rate is a fair portrayal of the justice system?

Mr. Glen Flett: But again, I think the life sentence is a life sentence. Part of the problem with Olson is that he has bought into the rhetoric of the media. Believe me, it isn't 25 years; he's going to die in jail. He had better get used to that. He's going to die in a little box. If he were just going to do 25 years in jail—

Ms. Albina Guarnieri: Can I interject? I was one of those individuals who really believed Olson and Bernardo would never, ever get out. I really believed that. I always asked myself how Wendy Carroll could have gotten her throat slashed by these two predators on the street. It never made sense to me. I couldn't understand how anyone could release these individuals with such casualness.

When I went to the Olson hearing, I found that Olson had his champions. A Correctional Service official gave him a clean bill of health. If I had heard the testimony of this individual without that of the psychiatrist and without the victims to remind us of the gruesome nature of his crimes, I would have said, “Hey, the guy is sorry; he's rehabilitated; he should be out on the streets.” But the reality is that we all know what Olson is about.

Mr. Glen Flett: But what you don't understand is the process, and I understand that, because you went to the courtroom—

Ms. Albina Guarnieri: It was a shock—

Mr. Glen Flett: —but you didn't go through the prison process.

Let's use Olson. I hate to use that name but I will use it. That guy is not going to get out because he can't cascade through the system. You don't understand the system. He's never going to get out from maximum, and there's no way he's going to live through medium because the prisoners are going to kill him. You can believe that. So the bottom line is that he's never even going to get to where he's going to be available for and really be considered for parole, because he's going to be in a maximum security prison. Just on that very grounds alone he will be refused parole. I've worked with guys on parole, and they don't parole right out of maximum.

The Chair: One more question, Ms Guarnieri, and then we'll have to wind it up.

Ms. Albina Guarnieri: Very quickly, I asked the justice department that very question with regard to Olson and Bernardo, and the answer I got was, highly unlikely.

Mr. René Durocher: You cannot turn around and through your conscience say, “I decide as an MP that this Olson and Bernardo will never be released”, because what is in place is a parole board decision. But the people you have on the parole boards, starting with Mr. Gibbs, who used to be a warden in a prison, know every aspect of the jail system. Do you think they'll release him? Can you find a jury in this country, 12 sane people, who will grant Olson or Bernardo any reprieve on the faint hope clause? Twelve out of twelve, can you find them? I don't think so. I don't think we can find 12 sane people in this country, and we cannot find 12 crazy ones either.

Ms. Albina Guarnieri: I have one last quick question. What rationale can you give me that someone who has killed 25 people should be treated the same as someone who killed once?

Mr. Glen Flett: There is no rationale for that. Of course not.

Again, you're missing the point. Life is life. I was released after 14 years. My partner on this offence was released after 16 years. He drove the car, by the way, but he was the mastermind. For some reason the parole board—I guess because of his prison behaviour and everything else—decided to make him do more time. I don't really know why. But the fact is that it's the parole board that decides to release a person from that very stringent sentence of life. You aren't released from it; you're just going into the community to have the privilege of serving it on the street.

I don't know what the circumstances are of the case where those two people who were out on that offence slashed her throat, but I'm sure if you looked at the circumstances that led up to their parole hearing before they did that thing, you'll find that, unfortunately, most people probably would have been fooled by them.

I'm not sure what that means. But the public needs to get more involved. This is happening right here. If you want to help victims, I think the public needs to get more involved in the corrections process. Of course, this is a wonderful debate, this whole thing of getting involved and interested and how we can do this better. I think we need to be concerned about that, all of us, not just me but everybody.

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Mr. René Durocher: It seems what we're doing every time is trying to get something harsher. We should have debates in this country to make a better, safer community, but not by dealing with the ones who are inside. It's from the street that we have to deal with what's going on, to deal with our youth who are out of school, to deal with our youth who are getting involved in crime.

The Chairman: I'd like to thank the panel for being with us. It has been a long morning, but certainly we've enjoyed your testimony very much. Thank you for being here.

The meeting is adjourned.