JUST Committee Meeting

     I call the meeting to order. This is meeting number 38 of the Standing Committee on Justice and Human Rights. Today is Monday, October 19, 2009. I'll just note that today's meeting is being televised.

    You have before you your agenda for today. At the end of today's meeting we'll leave approximately 20 minutes to deal with some committee business and to continue debate on Monsieur Ménard's motion on the study on the Cinar case. I can also advise the committee that your subcommittee will be meeting tomorrow at noon to plan our schedule going forward.

    Once again, I'll remind all of us to turn off BlackBerrys or put them on vibrate, and please make sure you take any phone calls outside of this room. Thank you for your courtesy.

    Now back to our agenda. By order of reference, we will be considering Bill C-36, an act to amend the Criminal Code. This is a bill that deals with serious time for the most serious crime.

    To help us with our review of this bill we have with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Welcome back, Minister.

    Thank you very much.

    Supporting the minister, we of course have Catherine Kane and John Giokas, counsel with the Department of Justice. Welcome to you all as well.

    Minister, you have the floor for ten minutes for an opening presentation.

     Thank you very much, Mr. Chairman.

    I'm pleased to meet with you once again to discuss justice legislation. This time I'm here to discuss Bill C-36, an act to amend the Criminal Code, the Serious Time for the Most Serious Crime Act, which proposes to make significant changes to the faint hope regime.

    As you are aware, the Criminal Code currently provides that offences of high treason and first and second degree murder carry mandatory terms of life imprisonment accompanied by mandatory periods of parole ineligibility. For high treason and first degree murder, an offender must spend a minimum of 25 years in prison before being eligible to apply for parole. For second degree murder, an offender must serve a minimum of 10 years. However, a judge may increase this to a maximum of 25 years, depending on a variety of factors, including the circumstances of the crime.

    Despite the appropriately severe nature of these parole ineligibility periods, the faint hope regime--section 745.6 and related provisions in the Criminal Code--allows offenders sentenced to life imprisonment for murder or high treason to apply to be eligible for early parole after serving only 15 years. Our government promised to change this by restricting the availability of faint hope for already incarcerated offenders and by eliminating it completely in the future.

    The amendments to the Criminal Code I'm bringing forward will accomplish these goals. First, they will bar everyone who commits murder or high treason in the future from applying for faint hope. All those who commit these offences after these proposed amendments come into force will no longer be able to apply for a parole eligibility date earlier than that mandated by the Criminal Code and imposed by the judge at the time of sentencing. In effect, Mr. Chairman, the faint hope regime will be repealed for all murderers in the future. This will complete a process begun in 1997, when the faint hope regime was effectively repealed for all multiple murderers who committed at least one murder after that date.

    The rationale for Bill C-36 in this regard is very straightforward. Allowing murderers a chance, even a faint one, to get early parole is not truth in sentencing. Truth in sentencing means that those who commit serious crimes ought to do serious time. That is what the proposals in Bill C-36 aim to do. They restore truth in sentencing and keep dangerous criminals in prison for longer periods of time.

    Clearly, the faint hope regime does not, on its face, automatically entitle an applicant to parole. In fact, however, the vast majority of those who are successful on a faint hope application are ultimately granted parole by the National Parole Board. What this means is that killers who were given appropriately lengthy sentence terms are getting out and walking the streets, albeit under conditions of parole, earlier than otherwise would be the case. These amendments are designed to respond to the concern of Canadians who are often dismayed to discover that, thanks to faint hope, the custodial sentences imposed on murderers are not always the ones served.

    As for those already incarcerated for murder who are now eligible to apply under the faint hope clause or will become eligible to apply for faint hope in the coming years, their right to do so will remain.

    However, the second thing these amendments will do is tighten up the faint hope application procedure to screen out the most unworthy of these applications and place restrictions on when and how many times these offenders may apply for faint hope. This new procedure will apply to those who commit their offences before the coming-into-force date. Those already serving life sentences in prison, those who have been convicted but not yet sentenced, and those charged with murder or high treason prior to the coming-into-force date who are later convicted will be subject to this new procedure.

    In proposing these Criminal Code amendments both to bar future murderers from applying and to tighten up the application procedure for those already in the system, Mr. Chairman, we are mindful of the suffering endured by the families and loved ones of murder victims. Through these amendments, we propose to spare them the pain of attending repeated faint hope hearings and having to relive their terrible losses. As I have said on a number of occasions, this government remains committed to standing up for the victims of crime.

    Many of you already know that the faint hope application has been amended a number of times since its inception in 1976 in response to the concerns of victims' families and the citizens of Canada.

    At present, the procedure has three steps. First, the applicant must convince a judge in the province where the conviction occurred that there is a reasonable prospect that the application will proceed. This threshold test has been described by both the Manitoba Court of Queen's Bench and the Ontario Superior Court as being relatively low.

     We will make this test tougher. A faint-hope applicant will have to prove that they have a substantial likelihood that their application will succeed. They will need to have that substantial likelihood that their application will succeed. This means that the evidence the offender will bring forward to a judge must be much more convincing. This will prevent less worthy applications from going forward.

    We are also proposing a longer minimum period of time before unsuccessful applicants can reapply to a judge. Right now, the minimum period an offender has to wait to reapply to a judge is two years. Under this proposal, they will now have to wait a minimum of five years.

    If these proposed procedural changes become law, a convicted murderer with a 25-year parole ineligibility period who applies at the earliest possible opportunity will only be able to make two faint-hope applications, at the 15- and the 20-year mark. This contrasts with the present system, where there are five applications at 15, 17, 19, 21, and 23 years. This change from two to five years will create more certainty for the families of victims about when a faint-hope hearing will occur. By limiting the number of applications that can be made, we will reduce the trauma that these hearings often inflict on them.

    If an applicant succeeds at the first stage, he must then convince a 12-member jury to agree unanimously to reduce his or her parole eligibility date. If the jury says no, the offender may, under the present law, reapply in as little as two years. Again, we are going to change this to five years, and for the same reasons that I've just outlined.

    If an applicant is successful at the second stage, he or she may go on to apply for parole directly to the National Parole Board. No changes are proposed for this final stage of the process.

    Under the current law, those convicted of murder or high treason may apply for faint hope at any time after serving 15 years. We also propose to change this by putting a three-month limit on faint-hope applications.

    This will require applicants to apply within 90 days of becoming eligible. If this application window is missed, the offender will have to wait five years to apply and will once again have 90 days within which to file a subsequent application. This will ensure that applications are made at the first and each subsequently available opportunity. No longer will victims' families be forced to live in constant dread, uncertain as to whether a particular killer will revive their suffering by seeking early parole at his or her whim.

    Let me add that I understand the concern of ordinary Canadians that the faint-hope regime allows for lenient treatment of murderers. In this regard, I believe that most Canadians support these measures, which are aimed at protecting society by keeping violent or dangerous offenders in custody for longer periods. This bill will allow us to meet the concerns of Canadians that murderers do the time they have been given and stay longer in prison than they do now. That is why I urge all members of this committee to support this bill.

    Thank you, Mr. Chair.

    Thank you, Minister.

    I believe we have Monsieur LeBlanc starting off for the opposition.

    Thank you, Mr. Chairman.

    Thank you, Minister, for coming to the committee.

    Colleagues will know, and the minister knows, that we supported Bill C-36 at second reading. We continue to believe that this is an appropriate measure to take. It was a previous government, as the minister noted, that restricted it 12 years ago, and this is a further restriction of the faint hope provision.

    There has been, I think, a lot of confusion around this. “Faint hope” means faint hope in the sense that, as the minister alluded to earlier, people convicted of those very serious offences shouldn't automatically assume that the rigorous provisions by which they could apply to a court for the ability to then apply to the National Parole Board would automatically be accepted.

     I'm wondering if the minister or his officials have any statistics. In terms of offenders who have taken advantage of the faint hope provision and made application in the past, what percentage of those applications in recent years, for example, would actually end up being granted parole?

     That's a very good question, and I'll ask the officials in a moment to respond to that, Mr. LeBlanc.

    You raise an important issue. In my discussions with victims and those who brief me, they tell me the individual would be very unlikely to make parole or take advantage of the faint hope clause. What happens is that the families are put through the wringer again. They suffer again and again. Even if it is unlikely that they are going to be successful in their faint hope application, they tell me unanimously that this victimizes them again and again.

    My heart goes out to those individuals. I understand what they are saying. Some of these individuals have no hope of taking advantage of this particular provision in the Criminal Code and it does nothing except further the suffering of victims' families and their loved ones.

    I'll ask the departmental officials if they have any other comments.

    With respect to your question in terms of how many people made application, we do have some data, which is current as of April 2009, indicating that out of the 265 applications made over the time it was possible to make faint hope applications, 140 obtained reductions in their parole eligibility dates.

    Those reductions would depend on whether they were serving a sentence for first degree or second degree murder, so between one and ten years; it varies with the individual. That has to be put into context in terms of the total number of people eligible to apply; the 265 is over that period of time.

    You have to bear that in mind in terms of the total number of people serving life sentences. To assist in doing that, we could add that as of April 2009 there were 1,001 individuals serving life sentences who are potentially able to apply either now or in the future.

     Ms. Kane, of those who had their sentences reduced by receiving early parole, is there any tracking of whether those individuals have reoffended?

    Yes, the Correctional Service of Canada does track them quite rigorously. Ultimately the parole board granted parole to 127 of the group I referred to. Of that group, 13 were later returned to custody, 11 died, three were deported, one was on bail, another on temporary detention, and 98 were serving the conditions of their parole in the community under strict supervision.

    Thank you for that information.

    Perhaps I could ask one question, Mr. Chair, if there is any time, and if not I'll ask it on the second round. I know the member for Yukon has a question.

    I have a large correctional facility in my riding: the Dorchester prison and the Westmorland Institution. Some of the correctional officers who work at the Dorchester Penitentiary have told me over the last number of years that they have some concerns with respect to institutional security. I know the minister might say that his colleague is doing a terrific job at the Department of Public Safety--we've heard that before--but I'm wondering whether in preparing his legislation the minister had any input from the union representing correctional officers, who shared with me, albeit anecdotally, real concerns about removing the faint hope, and what that might mean to institutional security for the staff who work in the prison as well as the other inmates.

    Well, I can assure you that for those who are worried about that, Monsieur LeBlanc, we're saying that people convicted after this comes into force.... I mean, and we're talking 15 years from now.

    You did mention my colleague the Minister of Public Safety, who of course is in constant touch with individuals who work within the criminal justice system in terms of detention and facilities at the federal level. You are quite correct that I've said, on a number of occasions, that he's doing an excellent job in that regard. It's certainly something I believe in, and I'm glad you've given me the opportunity to once again reaffirm my support and cooperation with him.

    I'm sure he's very pleased with that as well.

    I don't want to put words in his mouth.

    Mr. Chair, if there's any time, the member for Yukon had a question.

    You have one minute, so you'll have to restrict it to a 30-second question and a 30-second answer.

    Thank you, Minister. I appreciate your comments.

    We all agree that judges do their best to make the appropriate decisions, but knowing this stricter regime, I wonder if you think there's any possibility this might lead to lesser sentences? Is there any worry that might occur?

     With respect to first degree murder and treason, that's it; it's a life sentence. There is no possibility of parole for 25 years. There's not much room to manoeuvre. People say that I'm bringing in mandatory minimum sentences. I respond to them that there are already a quite few in the Criminal Code, and that has to be one of the highest minimums.

     I have complete confidence in the judicial system's capacity to handle this or indeed any of the changes that we bring forward.

    Monsieur Ménard, you have seven minutes.

    Thank you, Mr. Minister.

    When I first heard about this regime that you want to amend, I, too, was well aware that such a sentence is imposed when the most serious crime has been committed, that is, when someone intentionally kills another person. When the decision was made to eliminate the death penalty for this crime, it was necessary to set out very serious consequences.

    I can appreciate some of your arguments regarding the suffering of victims, or rather the suffering of victims' families, since we are talking about homicide victims. I think it is excessive to require them to come and testify every two years.

    We can agree with you on one aspect of this bill and call into question certain others. With all due respect, we can have different opinions stemming from our own experiences.

    I listened to your presentation about crime. Do you really believe that the faint hope regime should never have been created?

    I won't speculate about what was in the past. I was part of a government for nine years, and we made many changes to the Criminal Code. I cannot help but believe that anyone who sits down with a victim's family will come to the same conclusion I have come to. That is what's embodied in this bill. This has to be changed, because the continuous victimization is the problem.

    You said there were certain aspects, and I want you to look carefully at some of those. One thing I like is the time limits on the applications. I've had people tell me they're waiting at the 15-year mark, and they don't know if and when the individual's going to apply. They even start trying to plan their lives around making sure that they hear this is coming. They try to pick up some information. It becomes very difficult for them. When you get your chance to look at this in detail, this is one of the things that should commend itself to you. For the people already in the system, there are strict time limits on your ability to do this. For people convicted in the future, if this bill comes into force, it won't be a question, but for the people already in the system, those time limits are a major step forward. I hope these are some of the details you will look at very carefully.

    I was looking for a simpler answer to my question. Nevertheless, I think you are saying that you have certain reservations and that you accept the fact that these provisions existed in the past. You want them amended, but you do not believe that victims would want any such provisions.

    The Hon. Rob Nicholson: Yes, that is correct.

    Mr. Serge Ménard: What happened with the implementation of this system to make you think that it should be virtually eliminated?

    As the Minister of Justice, you meet with victims groups on a regular basis. They are clear about the damage that a clause like this continues to do to their families. They have the initial horror of having a loved one murdered. They go through the trial and all the difficulty associated with it, as well as the appeal period. Then, later on, this becomes the second act, so to speak. It gets continuous—it goes on and on and on. It's this victimization we're trying to address.

    Mr. Ménard, when we spoke with Canadians about this and other aspects of our criminal law agenda, we received wide support. I suppose that's one of the reasons why we're the government today—many people agreed with what we had to say. It's an important part of who we are as a government. Canadians have responded favourably, and I'm very pleased about that.

    According to the statistics provided by your department, none of these murderers went on to kill again. Only 13 out of 127 committed offences that sent them back to prison.

    You seem to be making an argument of the fact that, in a very large number of cases, if not the majority, the judge grants the application to use these provisions, if the individual is eligible to invoke the provisions. Now, you wish to make the test applied by judges more rigorous. If the test were as high as you say, it would not be surprising to have individuals whose applications were granted by judges receive unanimous approval from juries.

     If what you're saying, Monsieur Ménard, is that people who have committed premeditated first degree murder, for instance, might be let off because they won't be eligible for a faint hope clause in 15 years, I would have to disagree with you. I believe those individuals will continue to be convicted, as they should--

    You do not understand what I mean; that is not what I said. I said that you seem to be making an argument of the fact that once the judge allows someone to go before a jury, a great many.... Or rather, your reasoning is that parole was granted to a large percentage of those who were successful with juries. By making the test higher at the first stage—for the judge—to allow someone to go before a jury, it follows logically that the majority of people, if not all, would be successful with the jury and afterwards with the National Parole Board.

    No.

    Perhaps you would care to respond.

    I will answer in English, if you do not mind.

    I think your question relates to the notion that the test is moved to the very first stage, a higher test at the first stage, and if you're successful at the first stage, you're more likely to be successful with a jury.

    Is that what you're suggesting?

    Yes.

    The current situation seems to support that those who do make a successful faint hope application do succeed in having some of the years reduced from parole once they get to the parole board, most likely because they have been able to make the case at that first stage. Although the courts have said that test is relatively low, this will increase the test to one of substantial likelihood of success. There are certain criteria that the judge and the jury have to consider in terms of deciding whether parole years will be reduced.

    So there may be some agreement with your comment--it's very hard to speculate in that regard--but there certainly will be more at the front end.

    I am going to change topics.

    The people who put this system in place gave three reasons. One of those reasons that always comes back is that if people had some hope, no matter how faint, it would go a long way to keeping prisons secure.

    It is better to give someone a faint hope than to have a completely hopeless person in prison. Do you agree with that?

    A very quick answer, please. We're well over seven minutes.

    Again, it's my hope that people don't get involved with this kind of activity and create the kind of victimization that can sometimes take place.

    Monsieur Ménard, I don't agree; you can say that only 13 people went out and committed other offences, but many people would say that was 13 people too many, that there's a cost to society among individuals who do that.

    So I'm asking you to have a very close look at this, even consult with your constituents. I think they'll agree with what we are doing here, getting rid of this in the future so that there is more truth in sentencing. We have to make sure we maintain that confidence in the criminal justice system, and this is certainly one of the ways to do that.

    I'm sorry if I went on a little too long, Mr. Chair.

    No, that's fine. Thank you.

    Mr. Comartin, seven minutes.

     Thank you, Mr. Chair.

    Thank you, Mr. Minister and officials, for being here.

    I just want to follow up on that last point. You drew a conclusion, Mr. Minister, that I'm not sure is accurate. We have a study here by the researchers from the library about the number who return to custody.

     Ms. Kane, you may be able to help us with this more. My understanding is that not all of those people who were returned to custody were returned to custody as a result of committing another crime, but because of breach of parole. You could argue maybe that it was because of a technical breach of the law, so there was not a new violent offence in particular committed. Do we have the breakdown of that? We actually have in the study they've shown us 15 cases rather than 13.

    I don't have that breakdown of why they were returned to custody. There were a variety of reasons why a parolee would be returned to custody. They are very closely supervised and sometimes certain things are done that are not as serious as others, and they are still returned to custody. But we can inquire of our colleagues at Correctional Service as to whether they can provide that information.

    Would you do that, and provide it to the clerk of the committee.

    In that same study we had done by the library, they did comparisons of incarceration rates as a result of convictions for murder in a number of countries, and Canada stands out, as even higher than the United States, for the number of years that people spend in custody as a result of murder convictions. They're higher than any other country they've studied. Are these statistics accurate? They're showing roughly 28 years are spent post-conviction in custody. Is that figure accurate?

    That is accurate as far as we're aware.

    Even though we've got a minimum of applications at 25 years, they still spend on average longer than that?

    Yes. There's no obligation on a person to apply for parole, even at their eligibility date, if it is 25 years. Some get to that point and wait until they think they will have a more successful application. It's difficult to speculate on why people apply when they do and why others wait.

    Mr. Minister, it seems that you're placing a great deal of emphasis for these amendments that you're proposing on the impact it has on the families, and I think we can all share that. But I would suggest to you there's an alternative that would be less draconian than getting rid of this completely, for the reason that we shouldn't get rid of it and why we first brought it in. You could introduce amendments to the code that would require on every application that there be a review that would not involve the family. In all of these that we get, the majority of them, the initial applications, and even oftentimes the second and third application, people are turned down. So rather than having the families and friends and other people who are associated with the victims of the murders going through this every time, you would have a judge and jury look at it.

    We know that with a large number of these the recommendations coming out of the Correctional Services psychiatric and psychological reports make it obvious that this person is not going to be successful. So rather than putting the families through it, build in an interim phase, where a judge and jury would look at the situation, as the system allows for, and then not involve the families, because it would be turned down almost automatically because it's obvious this person is not eligible at this time. That would deal, I would suggest to you, to a great extent with the trauma the families are put through.

    Again, Mr. Comartin, the victims I have spoken with are unanimous: they want to know of every development. If I told them there's going to be this interim process, and eventually if it looks serious or the guy is going to get an opportunity to make his case, you'll be informed of it, I have the feeling it would be unappealing to them, in the sense that they want to have more information about the individual who has caused them such suffering. To not allow them to be made aware of any application or any proceeding I think would be more problematic than the situation we have today.

    Those are all my questions. Thank you.

    Thank you, Mr. Comartin.

    We'll move on to Mr. Norlock for seven minutes.

     Thank you very much.

     Thank you, Minister and your officials, for attending today.

    Mr. Comartin has set me off on another little track, but I'll begin at the first and hopefully we'll have time to get caught up.

    When somebody mentions to me that because they took another human being's life, and the fact that society wants to keep them in jail for 25 years.... And it should be 25 years--in other words, truth in sentencing. When they call that draconian, I simply wonder what we would call the murder of the person who has no life left to serve, either on the face of this good earth or anywhere else. I think to remove the families, once again.... You know, we fought long and hard in this society for the victims' families to be able to even come to court and give a victim impact statement, which wasn't there when I began policing in 1970. We finally got the victim's voice to be heard, and now we want to take it away for the reason that we want to protect them. I think we should protect them by making sure that people who commit serious crimes spend the appropriate time incarcerated. That's what the victims and the average person on the street want to hear.

    Anyway, Minister, keeping in the same vein of victims being continually victimized, when the bill was introduced I made a list of some comments from various newspapers and media outlets. A number of families and individuals who lost loved ones made some comments about these more serious and heinous crimes. Most spoke about the hardship they faced, about which some people are telling us now that they want to relieve that hardship, but I wonder.... I think we'd best communicate with them, Minister.

    Here are a couple of the quotes that I think really struck at the basis of this whole legislation. The first one comes from Theresa McCuaig, whose grandson was murdered. It was reported in the Kingston Whig-Standard in June of this year, and I quote Theresa. She says:

    The other one comes from David Toner, whose son was murdered. Mr. Toner is now the head of a group called Families Against Crime and Trauma. It was reported in The Province in June of this year. He says:

    Minister, I wonder if you could comment on that and comment on what you've been hearing when you've gone across this country and talked to victims of crime.

    You've actually summarized pretty well, Mr. Norlock, what these people go through, and that's what they tell me. The hell never ends. There's no closure. It simply goes on and on and on, applications. And as you say, in cases where there might be multiple murderers, it never ends and there's no closure, and it's wrong. It's wrong that these people have to go through this. To the extent that it's possible that we as a Parliament can place greater emphasis on victims and the law-abiding citizens of this country, we are on the right track.

    I've told this committee before how pleased I was to appoint the first federal ombudsman for victims of crime. We're sending out the message that the interests of people who are victims are a priority. I want them to know that, and I want them to know that by passage of a piece of legislation like that, we are responding to those individuals who have been caught up in this vortex. Again, this is a step, and it is a very reasonable step in the right direction. I think it sends out the correct message.

    The byproduct of it as well, quite apart from everything else, is that I believe it increases people's confidence in the criminal justice system. It actually hurts the criminal justice system when people read in the paper about an individual who they thought was gone for 25 years is now in court making the case to be let out on the street. It hurts the administration of justice in this country. To the extent that we combat that, we are living up to our responsibility as legislators. I have no doubt of that whatsoever.

     Thank you.

    Thank you, Mr. Norlock.

    We'll move on to Ms. Jennings, for five minutes.

    Thank you.

    My understanding is that under the Correctional Services Canada statistics that were released in April 2008, and the next set will be released in December 2009, of a total of 22,831 offenders under CSC's jurisdiction at the time, 4,429, or 19.4%, were serving life sentences, almost all for murder. Now, my understanding is that Bill C-36 is not retroactive. So I'd like the minister to explain.

    I have a great deal of empathy for families who have members who are victims of crime, whether it was murder, rape, theft, assault, you name it. I'd like the minister to explain how he's going to explain to those families that will have to continue to live with the exact stress, fear, anxiety he's talking about, as a justification for removing the faint hope clause for those who commit these violent acts in the future, that the families who have already lost family members due to violence, or have suffered themselves, or a family member has been a victim of violent crime, are going to have to continue to live with that stress, etc. There are a little over 4,000 under CSC jurisdiction right now who are serving life sentences, almost all of them for murder, which means that at some point in the future they are going to be eligible for the faint hope clause.

    How are you going to explain it to them?

    Well, I guess you're probably aware, and I'm sure some of your colleagues will point it out to you.... And maybe this is the position you're taking. I'd be surprised if it is the position of the Liberal Party, but sometimes I'm not surprised—

    It's a question. I'm asking a question.

    If you're saying to me that we can go back retroactively and start changing the sentences of people, for instance, who were convicted ten years ago, that we can change one of the terms upon which they were convicted ten years ago by wiping out the faint hope clause for them, I'd be quite surprised. You know, of course, that in a split second there'd be charter challenges on that.

    What I have done is within the Constitution. I have to move forward with legislation that I believe complies with the Charter of Rights and the Canadian Bill of Rights. And in doing so, as you can see, some of the procedures I have tightened up, so that it's every five years that you can apply for it, as opposed to every two years. And you have a small window, a three-month window, in which to make that application. That, I believe, will pass constitutional muster. I have no doubt about that. But retroactively to wipe this out, Mrs. Jennings, I think I'd have a major problem. And I think constitutional experts will agree with me on that.

    Minister, on the sexual offender registry, it was in fact made retroactive, notwithstanding the fact that there were concerns that it might in fact violate constitutional rights, and to my knowledge it's withstood any charter application.

    When you came up with this bill, did you in fact investigate and determine whether or not making it retroactive would pass the charter test, whether or not there was a strong argument—

    That's always a consideration, Mrs. Jennings.

    And what was the response?

    My conclusion was that there would be grave constitutional difficulties with changing somebody's sentence retroactively.

    As I say, I have transition—

    It doesn't change someone's sentence.

    —procedures within the bill, and this will apply to all individuals in the future, restricting the opening that they have.

    If you're putting that on the record, that retroactively you think we can start changing people's sentences, I'm quite surprised at that.

    Again, I have to advise and I have to bring forward legislation that I believe will pass constitutional muster, that will comply with both a charter and the Canadian Bill of Rights. I have to do that. I'm satisfied that this piece of legislation does just that.

    And you're satisfied that to remove the faint hope clause entirely for those who have already been convicted of life sentences and who benefit as of this moment from the faint hope clause, to remove that—

    Completely.

    —retroactively would be a violation of their constitutional rights, and therefore you are prepared to allow all of these families that you've been, in my view, weeping crocodile tears over to continue to live with the stress and the anxiety—

     If I believe something is unconstitutional, you'd want me to.... Are you suggesting the notwithstanding clause?

    Order.

    Ms. Jennings, let him answer the question.

    I did not interrupt him. He answered the question. I am now making a statement, and he's the one interrupting.

    Ms. Jennings, you are over your time. That is why I have to—

    That's a whole other story.

    I manage the time, Ms. Jennings.

    The minister interrupted me and you allowed him to do so.

    Order.

    Ms. Jennings, please.

    Minister, please answer the question.

    I was responding to his answer. May I continue?

    No, you may not.

    Minister, please respond.

    We all have our opinions on this. We make every effort to comply with the Constitution, to work within it, and I believe we do that. We assist those victims. We try to make it easier for them to get to wherever there are hearings. We are restricting some of the procedures that surround this. But if you're asking me to ignore the Constitution or the Canadian Bill of Rights, I'm not prepared to do it. We have to make those decisions, Ms. Jennings, and sometimes it's not easy.

    Thank you, Minister.

    Don't put words in my mouth, please.

    Ms. Jennings, and the rest of the committee, I want to assure you that I'm not going to cut off members of this committee unfairly. But we have to manage time. Each of you is allotted a certain amount of time to ask questions and receive answers. It's my job to make sure that we get through the meeting and allow enough individual members to ask questions.

     Ms. Jennings, I'm not cutting you off. What I'm doing is making sure that the minister has an opportunity to respond to some of the concerns you raised.

    Monsieur Lemay.

    Mr. Chair, may I take one moment—

    No. That's the end of it.

    I have a point of order, then.

    All right.

     Under the rules and procedures, I have five minutes to ask questions and have them answered. I was in the process of speaking. You had not told me my time was up. The minister interrupted me, began speaking over me. Rather than call the minister to order to allow me to continue, you allowed him to continue speaking and then claimed, as a second justification, that my time was up.

    I think that is clearly a violation of the rules. Had my time been up when I had been speaking, you could have told me so and allowed the minister to answer. You did not do that. You allowed the minister to interrupt me as I was speaking. I was polite with the minister—I asked my questions, made my statements, and I allowed the minister to speak. I did not interrupt him once. When the minister had finished speaking, I began to respond and tried to ask a question. He interrupted me, and you allowed him to do so.

    I am very disappointed in this. Just as it is impolite for members to interrupt a witness who is speaking, so it is impolite for a witness, even if it's a minister, to interrupt a member of this committee who is within her time and who is asking a question or making a statement.

    Thank you, Ms. Jennings. You've made your point.

     I will reassert that I will manage the time of this committee. You can challenge me at any time, but I'm going to do my best to make sure everyone at this committee has an opportunity to ask the minister questions and get answers from him. I've always acted in this manner and I'm going to continue to do so.

    Monsieur Lemay.

    Thank you, Mr. Chair. I will try not to get into an argument with you.

    Mr. Minister, I am not sure whether you or anyone in this room has ever watched someone convicted of first-degree murder apply for parole. I have seen it, and I can tell you that it is an extremely painstaking process.

    I have done all the analysis, I have met with Mr. Giokas, and I have studied everything carefully. Instead of proposing everything in Bill C-36, why not propose just one other thing? We all agree that murder is the worst crime that someone can commit. When someone is convicted of first- or second-degree murder, why not give that person one chance only? After reading your bill, I did the math. A person is not eligible before they have served a minimum of 15 years. They have to go before a judge, and if they are not successful, they will probably have to go to 25 years.

    As a lawyer, I would much prefer preparing my client just once. There is no need to do it two or three times because the rules are very clear and the judges, very strict. That might satisfy a lot of people at this table. Why not say that you have one chance only, that you cannot miss that chance and that you have to prepare properly?

    Your bill promises something that is not necessary, since the individual who is unsuccessful once will have to wait five years to reapply.

    After analyzing everything, I truly believe that we should say you have one chance only and you need to prepare properly, and we need to explain how it will work. That is the only solution as I see it.

     That would be very interesting, Monsieur Lemay. I suppose the person gets their chance at 15 years. If they miss out then, I take it they'll be there until they die there at whatever age. So you'd be getting rid of the 25 years as well. It's fair enough, I suppose.

    I hear what you're saying, but I think what I'm saying is very reasonable. You go at 15, 20, and 25 years. Again, I'm always concerned to make sure it will pass the constitutional test.

    I'm sorry, but are you saying that at 15 years, they do, and then that's it?

    I do not want to interrupt you, but what I mean is between year 15 and year 25, the person will be able to apply only once. After 25 years, we will have to see, in any case, depending on all of the rules. I am talking about the period between the 15^th year of incarceration and the 25^th. Proper preparation is necessary.

    With all due respect to my colleagues and you, I suggest that you consult with lawyers who have worked on these kinds of cases. They are so tedious, so long. I would like you to take a close look at that, if possible. I am certain that the Supreme Court's conditions would be upheld, based on what it said in Swietlinski.

    I would like to hear your thoughts on that.

    Well, I think that's a very interesting point, Monsieur Lemay. You're coming at it from a direction I actually wasn't expecting from you or your political party, but I continue to be surprised on this.

    Again, I think we're only talking about the people who are already in the system. I appreciate there are a number of numbers for them. I'm not sure it's 4,000, or exactly 4,000.

    Again, one of the good things we have done is there is now some certainly as to when that application is going to be made. And with your proposal, if they have one time to do this, you would have the victims who are waiting, wondering whether it's 16 or 17 years or whether the individual is going to make the application after 18 years for his or her one time.

    So I think this is a reasonable proposal. In the end, if we're moving to get rid of it, I hope it has your support.

     Thank you, Minister. We're out of time.

    Over already?

    We'll have one more question.

    Mr. Woodworth.

    Thank you very much, Mr. Chair.

     I thank the minister and his officials for joining us today.

    I want to comment particularly on the eloquence of the minister in speaking about the difficulties the faint hope clause has caused for victims of crime. I can tell by his eloquence that the concerns and interests of victims are very close to his heart and are a major consideration in this bill.

    I'd like to shift a bit just from that to perhaps something that may not be as major but is equally important. It stems from the statistics that were touched on earlier about the April 2008 report showing that out of 125 offenders released under the faint hope clause, 15 had been returned to custody. In fact, one statistic was left out—that is, as of April 2008, one of them was still unlawfully at large.

    So at least one in eight of the people who were paroled under the faint hope clause were returned to custody. And far from it being merely a technical concern, I personally regard every parole violation as a gamble lost. Every parole violation represents a failure of the faint hope clause, and every parole violation represents a risk to Canadians across the country.

    That's what I want to ask you about, Minister, because under your bill, if it had been enforced, none of these people would have been released under the faint hope clause. That seems to fit in with your policy to keep our streets safer, and it seems to fit in with the government's policy. Is that another piece of this puzzle? Are you proposing this bill as part of the government's policy to make streets safer for Canadians?

    I don't think there's any question about it.

    I did have an interesting question. Somebody asked me when I introduced the bill whether I was saying that somebody who was going to commit first degree murder might not do so because they would now no longer be eligible to apply for that faint hope after 15 years. I said it would be very difficult for anybody to try to figure out, for starters, what could be in the mind of somebody who would commit premeditated first degree murder. But the point I made was that I know there will be less victimization in this country. There is no doubt in my mind whatsoever that the individual who has committed this heinous crime will spend 25 years before federal parole eligibility. It will be a blessing to the families who have to go through this, or have had to go through this process that has been described here, not to have to do this again, because they continuously get victimized.

    But you're right: we want people to have confidence in the criminal justice system. We're trying to get rid of the two-for-one credit; that's just down the hall. That's part of it. I think that will increase people's confidence in the system they have in this country, and this is another part of that. When people have confidence in the system, it works to everybody's advantage.

    So yes, we want to better protect Canadians; we want to reduce victimization; we want people to have confidence in the criminal justice system of this country. We want to be fair to those individuals who are being charged under our criminal justice system. They have to have rights—of course they do—and we want them to be treated fairly, but all as one part of it. You can't support one at the expense of another.

    As Mr. Norlock and others have been saying, we have to make sure that victims are heard, that they are part of the process, and that their interests are taken into consideration. We can't ignore them, because then everybody loses. But you're right: this is part of our overall package to make Canadian society a safer one in which to live, and part of making it safer is to make sure that people have confidence in the system. That's what we are about.

    Thank you.

    About the question of people who have already been sentenced and therefore have the option of the faint hope clause, I understand there are some procedural changes in this bill relating to the number of applications or how frequently and when, which will provide some relief to the victims of those criminals. Could you provide us with some detail about those things that are constitutional and procedural?

    Yes. You have them before you.

     I gave my opinion as to the constitutionality if we were to wipe it out retroactively. But what we have done is to put some parameters and make some procedural changes with respect to those people who are already eligible or that was part of their sentence. I think closing the window on when the application can be made, spreading it out to every five years, and giving them a 90-day window in which to make the application or they're out of luck for five years are all reasonable steps and in the right direction. You'll get away from the system that has been in place where they may apply after 15 or 15 and a half years, or they might wait, whenever they do it, and then every couple of years after that. It's not the way to do it.

     This is a huge improvement, and again I hope this gets the support of everyone here. It's a step in the right direction.

     Thank you very much.

    Minister, you had committed an hour to us. I thank you for that.

    I'm in the hands of the committee. Do you wish the staff to remain behind? Are there any further questions you wanted to ask?

    I have one question, which the staff can answer.

    Minister, you're free to leave. We'll simply continue with questions to your staff.

    Mr. Bagnell, you have five minutes.

    Thank you. It should be very short.

    Do you have statistics on the percentage of people who have been released on faint hope clauses who have committed serious crimes after being released?

    The only data I have is what I already quoted to you, that out of 265 faint hope applications, 127 people were ultimately granted parole. According to our statistics, which are from April 2009, 13 were later returned to custody, but I don't know specifically for what reason they were returned to custody. I undertook to Monsieur Lemay and Monsieur Ménard to follow up with any additional information we could get to break down why they were returned to custody.

    Even if they were all returned for new offences, this is far below the recidivism rate of regular criminals, so those statistics suggest that these people are much safer than any other criminal who's been released into the general population. It's very interesting.

    Thank you, Mr. Chair.

    Thank you. Do you require any further information?

    Is there anybody else with questions for the witnesses?

    We'll move on to Monsieur Petit. You have up to five minutes.

    Thank you, Mr. Chair. I will be brief.

    Ms. Kane, I want to understand how the legislation would apply using a case that has already been settled. I want to know whether what we are doing could have been applied in the past. In Quebec, everyone heard about the case of Denis Lortie, who, in the middle of the National Assembly, killed three people and was later found guilty.

    He is now out of prison. After serving eight years, he was released on parole. He wanted to kill members of the Parti Québécois. He was sentenced and later released.

    If Bill C-36 had been passed at the time, could Denis Lortie have been released before serving 15, 20 or 25 years? This is an actual case. In Quebec, this individual is no longer in prison despite having killed three people in the National Assembly. If this had happened today, would he have been sentenced to 15, 20 or 25 years in prison?

    We can't speak in terms of today, but if that case were to arise after this law comes into effect—if this law is passed and is proclaimed into force and if the crime were committed after that time—anybody convicted of murder would not have an ability to rely on the faint hope clause. Their parole eligibility date would be set: if it's for first degree murder, it's 25 years; if it's second degree murder, it would be after a period of between 15 and 25 years. They would have to serve the full period of their parole eligibility before applying for full parole to the National Parole Board. There wouldn't be any interim stage of seeking a reduction in the number of years, which is what the faint hope regime provides now.

    Thank you.

    Thank you.

    Monsieur Ménard, you have another question. You have up to five minutes.

    This is something that has always concerned me. I understand that you are assuring us that none of the individuals who received this committed another murder.

    I spoke to people at the Correctional Service of Canada. According to them, no one committed murder again. The 15 people were returned to custody because they violated the terms of their release, with respect to drug and alcohol issues. That is what I was told, but I will clarify later.

    You may be able to check that out.

    I recall seeing a television program a very long time ago. It talked about someone who was released on parole twice and who committed a third murder.

    Is there a way to determine if that has happened before? That would mean that this individual committed murder at a very young age, was sentenced once and then released, and then committed a second and a third murder.

    The individual would have committed the first murder at the age of 25, the second at 50 or 51, and then another. The third murder was especially heinous, as it also involved sexual assault. This supposedly happened before the person was 40 years old, or 50 for sure. This case was often held up as an example of the flaws in the parole system for at least 10 or 12 years.

    I was expecting to see this case included in the statistics, but it was not. I may have misunderstood the program, or perhaps it was inaccurate, that is, the person may have been released twice, but not for murder.

    The statistics we referred to were for what had happened to the group of those who had first applied under “faint hope”. There would also be the case of those persons who were serving a life sentence and who waited until their parole eligibility date and then applied for parole. Those would belong to a different group of statistics. We couldn't comment on what happened to anybody who received parole after that. If you have witnesses from the correctional services, perhaps they would be able to provide that additional information.

    If you ever hear of someone who was released on parole twice and who allegedly committed a third murder, please let me know. I will assume that the case was fictional or that the person did not commit three murders.

    Thank you.

    Monsieur Lemay.

    I would like some clarification. I was reading the documentation from the Library of Parliament. For murder, could you tell us what the average length of time spent in custody was before 1976 and then after 1976? Offenders served a minimum of 22.4 years before being eligible for parole.

    I would appreciate it if you could send us statistics on incarceration periods, especially after the changes in 1976.

    Yes, sir. Before 1979, the average incarceration period for murder was 15.8 years. Afterwards, it was 28.4 years, and today, as you mentioned, another study....

    It was not 28 years.

    According to a 1999 study, it was 18.4 years. Three or four years ago, the Correctional Service of Canada did another study, but I am not familiar with those numbers. You said 22.8 years?

    I said 22.4 years.

    I will check.

    Fine.

    I would appreciate receiving those figures and the corresponding years.

     Thank you.

    We'll move on to Mr. Woodworth. You have five minutes, if you wish.

    Thank you. I'm not sure that it will take five minutes.

     I just want to clear up a little point that has been bothering me about subclause 4(1) of Bill C-36, which will change the wording “reasonable prospect” of success to “substantial likelihood” of success in subsection 745.61(1) and in certain paragraphs of that. I think I'm understanding that this is being considered a procedural change rather than a substantive one and is therefore capable of being applied retroactively to sentences for which the faint hope clause will still apply.

     My first look at it gave rise to the thought that it really is more a change of substantive rights than a procedural change. I just want to make sure that I'm correct that the change applies to those who have already been subject and sentenced subject to the benefit of the faint hope clause and that someone has looked at it and has decided that it passes constitutional muster because it's only a procedural change. Or am I on the wrong track altogether?

    No. The minister did indicate that those procedural changes were regarded as constitutionally feasible. They are procedural. We're changing it for those who are still subject to the faint hope clause in some respect--that is, for crimes committed before the law changes.

     There are three changes. One is that the test at the first threshold is raised from “reasonable prospect” to “substantial likelihood” of success. Second, they have a time limit within which to bring their application. It is 90 days around the particular date. If they're unsuccessful in having their application advanced, they would have to wait five years before the next opportunity to bring forward another application. Again, the test would be a substantial likelihood of success before a jury.

    I understand.

    Those are regarded as procedural changes to tighten the regime that's currently available to those currently eligible for faint hope.

    Not being a constitutional law specialist, it seemed to me that the change in the threshold might be more than procedural. But I'm going to take it from your answer that this specific question has been looked at by the department, and it's concluded that it is merely procedural. So thank you very much.

    Thank you.

     Is there anybody else?

    All right, we'll suspend for five minutes to allow the witnesses to depart, and then we'll reconvene.

     Members, we'll reconvene the meeting.

    We have two items to deal with. One is a budget for our study of the Canadian Human Rights Act, specifically section 13 of that act.

    You have the budget before you. I'm seeking approval of the budget so that we can move forward and bring in additional witnesses. We have quite a list of witnesses now.

    Do I have a motion to do so?

     I move that we adopt the budget.

    We have a motion. Is there any discussion?

    (Motion agreed to)

    The Chair: Thank you.

    The second item is carrying on with the motion that Monsieur Ménard had put on the table and we were in the middle of discussing.

    Monsieur Ménard, you had actually made the motion, and committee members were debating it.

    I think I would be remiss if I didn't respond to some of the concerns raised on whether the motion is in order. I've sought the advice of committee staff, and I have a ruling on Monsieur Ménard's motion.

    Monsieur Ménard has moved the following:

    As members know, each parliamentary committee works within its individual mandate, as provided in the Standing Orders of the House. The mandate of the justice committee is laid out in Standing Order 108(2) and Standing Order 108(3)(e).

    Standing Order 108(2) reads as follows:

    Standing Order 108(3) goes on to say the following:

    This motion calls on the committee to conduct a study into the alleged actions of one individual in relation to one specific case. I would note that while this committee is fully able to undertake studies into matters concerning the Criminal Code or policy matters within the Department of Justice, it does not examine or make attempts to determine facts in individual cases. I therefore declare the motion as currently written to be inadmissible, because it exceeds the mandate of this committee.

    Monsieur Ménard may not welcome that ruling, but I also remind him that he does have the option to raise the issue or the motion with another committee of the House.

    So that's my ruling.

    With all due respect, I would like to appeal your ruling, Mr. Chair.

     Monsieur Ménard is challenging the ruling of the chair. It's not debatable, so I will call the question.

    Shall the ruling of the chair be sustained?

    Could we have a recorded vote?

    We will hold a recorded vote.

    (Ruling of the chair sustained: yeas 8; nays 2)

    With that, of course, there's no further debate on the motion itself, so we're at the end of our agenda.

    The meeting is adjourned.