EVIDENCE

[Recorded by Electronic Apparatus]

Monday, June 17, 1996

.1903

[English]

The Chair: Order.

I want to welcome everybody. This is the beginning of a pre-study on Bill C-45 and the actual study of Mr. Nunziata's private member's bill, Bill C-234. Our first witness is the Minister of Justice.

Welcome, Minister. The floor is yours. We'd like time for questions.

Mr. Ramsay (Crowfoot): Madam Chair, what speaking order will Mr. Nunziata take? Will Mr. Nunziata be allowed to question, and if so, in what sequence?

The Chair: Just so we're very clear, I think before prorogation Mr. Nunziata had an hour before the committee on Bill C-234. By the terms of the House order that brought Bill C-234 back, that evidence will be taken as part of our evidence on Bill C-234.

It's up to the committee. With a bill where there's lots of interest and lots of activity the practice in the past has been that non-members of the committee were not given any priority. However, in this case Bill C-234, which we're hearing at the same time as Mr. Nunziata's bill... Unless there are any objections, I would propose Mr. Nunziata take his place as an independent sitting in, and I would recognize him and give him ten minutes, as I would any opposition party, and then put him into the rotation.

Does anyone have a problem with that?

Mr. Ramsay: No. Just what will the rotation be? Where will he fit in?

The Chair: He will go after Reform, unless somebody wants to change that.

Mr. Ramsay: That's fine with me.

The Chair: So it would be Bloc, Reform, Mr. Nunziata, Liberals, and then we would alternate with five-minute rounds from opposition to government.

Ms Torsney (Burlington): Is this just with the minister, or is that going to be through all these hearings?

The Chair: Through all the hearings Mr. Nunziata attends. I propose that. If anybody has any objections I'll hear them now, or we'll just carry on.

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Ms Torsney: I notice we have about 60-minute periods for most of the rounds and we have a lot of members on our side. So I'm not sure it would not leave a time allocation almost double the opposition parties versus the Liberals.

The Chair: The clerk is suggesting that perhaps on the first round we limit Mr. Nunziata to five minutes and then put him into the rotation after this. Would this solve your problem?

Ms Torsney: Okay. Can I suggest we try it? I'm concerned, because if the presenter spends a whole 30 minutes we don't even get a round. And we still would get only five minutes out of this.

The Chair: And if we keep discussing it, we won't get to the presenter.

Ms Tornsey: Sorry.

The Chair: Let's give it a try and see how it goes. It can be subject to review. Is this agreeable?

Mr. Nunziata.

Mr. Nunziata (York South - Weston): Madam Chair, are both bills being considered simultaneously by the committee?

The Chair: Yes, they are.

Mr. Nunziata: Will both bills be voted on at the conclusion of the deliberations?

The Chair: Clause by clause, yes.

Minister, the floor is yours.

The Hon. Allan Rock (Minister of Justice and Attorney General of Canada): Thank you, Madam Chair.

I would propose to direct my remarks to Bill C-45. I know this is a pre-study in relation to this bill, but the remarks I make in respect of it I think will necessarily involve my commenting on the private member's bill also before the committee.

[Translation]

First, it is important to consider the purpose of Bill C-45. This bill is intended to amend the regime set forth by section 745 of the Criminal Code, which provides for the judicial review of parole eligibility in the cases of persons convicted of murder or high treason who have been sentenced to imprisonment for life.

In cases of first degree murder or high treason, the parole inegibility period is set by the act at25 years. In cases of second degree murder, the parole inegibility period is 10 years, unless it has been extended by the judge to as much as 25 years.

The offender does not have the opportunity to apply for judicial review of the parole inegibility period before serving at least 15 years of his sentence.

[English]

The process at present therefore involves the passage of 15 years, at which time the person in this category has the right to make an application. The chief justice is to designate a judge of the superior court in the province in which the application is made so the application can be brought -

The Chair: Minister, can I just interrupt you for a minute?

Would people please turn off all cellphones. Please turn them off and don't turn them back on during these hearings when you're in this room. Thank you.

Minister Rock.

Mr. Rock: So the application can then be heard by a jury.

It should also be borne in mind, Madam Chair, that even if the applicant succeeds before the jury, in the sense that the period of parole inadmissibility is reduced, this does not result in the offender going free. It results only in the offender being entitled to make application for parole to the parole board at the expiration of the reduced ineligibility period. It then, of course, is a question of fact in each case for the parole board to determine whether the person ought to be granted parole and on what conditions, if any, such parole should be granted.

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In the course of the last 18 months I've heard a great deal about section 745 of the Criminal Code. Some of it has been listening to people who have spoken of their own deeply felt views. Other parts of it have been the result of direct consultations in which I have involved myself or in which the Department of Justice has been involved.

The consultations have focused on two questions. First of all, should section 745 be retained in any form? Should it be repealed? And secondly, if it is to be retained and not repealed, can it be changed so it is improved and made better able to achieve its objective?

In answer to the first question, Madam Chair, I proffer Bill C-45, which clearly does not repeal the section. The government has come to the conclusion that as a matter of principle, such a provision should remain part of the criminal law. I emphasize that the section has been an integral part of the scheme for the sentencing of murderers in this country for 20 years. In our judgment, retaining it as part of the criminal law makes the criminal law in relation to the sentencing of murderers firm but balanced and humane.

I ask the committee to look at the context in which section 745 was enacted some 20 years ago. The debate in 1976 was about capital punishment. The question was whether the hanging of murderers should be retained or abolished. At the time, statistics show those who were convicted of capital murder - that is to say, the murderer who could be punished by hanging - served an average of 13 years in prison before parole. Those who were sentenced for non-capital murder to life served on average seven years in prison without parole.

In this context the suggestion that the parole ineligible period be moved to 25 years for first-degree murder and 10 years, subject to being increased to 25, for second-degree murder represented a significant departure from what was then the practice. Such a step would result in Canada stipulating periods of parole ineligibility for murder significantly in excess of those periods provided for in other western democracies with which we compare ourselves for other purposes, where the average overall seemed about 15 years before parole eligibility.

Even in the United States, which is very different because there is capital punishment, those who are not executed serve on average 18 years in federal prisons and 15 years in state prisons before parole.

A key feature of section 745 is the involvement of a community jury to ultimately make the decision on whether the applicant should receive some shortening of the period during which he or she is ineligible even to apply for parole. It is to this feature I will return in due course in another connection.

I mentioned, Madam Chair, the bill makes it clear that on the first question of whether section 745 should be simply repealed, the government has decided this is not what should be done. But, I hasten to add, it became clear through the consultation process there are aspects of the section and of the procedure that can and should be changed.

In the first instance, it was pointed out that at present the application and the hearing before a jury is available at the option of the offender. In those meetings I have had with surviving family members of murder victims, and there have been many, it has been impressed upon me again and again in the strongest and often most emotional terms that while a jury hearing of this kind may be a legal procedure to a crown prosecutor or a defence lawyer, might be a day in court for a judge, might be an absorbing experience for a juror, might be an interesting spectacle for the public, for the survivors of the murder victim it is an ordeal of trauma and pain it is difficult to articulate. It tears from the wound of their loss whatever has covered it in the period since the tragedy of the crime.

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The point has been made to me, Madam Chair, that whatever else is done with this section, we must ensure that jury hearing is not available automatically in every case at the option of the offender without at least some mechanism to ensure the application has merit on its face.

A second aspect of the current procedure which has been criticized is that it provides for a shortening of the parole and eligibility period if two-thirds of the jury agrees; a departure from the otherwise universal principle in the criminal law that jury unanimity should be required before decision.

A third aspect of the current procedure is that it results in there being no differentiation between the offender who offends once and the person who offends more than once. Everywhere else in the criminal law and in the principles that govern sentencing that differentiation is made. Those who commit more than one crime, even in the same category, are treated differently from those who commit the one crime. So the point has been made that for those who murder more than once a different penalty should obtain.

The bill I introduced last week proposes to deal with these issues by providing for three changes in section 745. The first is that the section would be denied absolutely for those who in the future are convicted of taking more than one life, whether through multiple murder, in the sense that on the same occasion more than one life was lost, or through serial murder, which involves the taking of lives seriatim on different occasions over a period of time.

[Translation]

Second, we have proposed to establish a screening mechanism whereby the Chief Justice of the Superior Court or a judge appointed for this purpose by the Chief Justice would examine the application record to determine whether it has a reasonable prospect of success before the application can be submitted for consideration by a jury.

This proposal would have effect for the future and would be retroactive in respect of all offenders eligible to apply under section 745 of the Criminal Code, provided they have not already filed an application before the amendments come into effect.

The purpose of the screening mechanism is to ensure that only deserving cases are submitted to a jury empanelled for the purposes of section 745.

[English]

The third change would require that the jury considering the application be unanimous before it decided on a shortening of the parole ineligibility period.

Madam Chair, in substance these changes would result in a regime in which the offender would not have automatic recourse to a jury. The offender would first have to satisfy a superior court judge, in writing, the onus being on the offender, that the application had a reasonable prospect for success based on the very tests that are in section 745 itself. Furthermore, when that person came before the jury, if they succeeded in satisfying the judge on that screening test, the applicant would have to persuade all members of the jury to shorten the period.

I mentioned earlier I wanted to return to the jury as a feature of this mechanism on which I place great emphasis. There are those who say the criminal law is out of touch with the views of the average Canadian. Some contend the penalties in the Criminal Code and our approach to criminal justice do not reflect community views or values.

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These same people often say we should vote with our constituents. They encourage referenda and plebiscites. They advocate votes for recall if parliamentarians do not perform to a certain standard. They urge democracy and community action.

To those persons I say the role of the jury in the process I'm describing tonight matches perfectly their desire and their advocacy for community action, because the twelve people who will sit on juries under section 745 are drawn from the communities we serve. They're taken from the shops, from the offices, from the subway cars, from the buses. They're taken from the street. They're sworn to a jury. They're put into the courtroom.

If Bill C-45 is to be adopted, in relation only to those offenders who satisfy the judge in advance that there's a reasonable prospect for success in the application, they will hear evidence about the offender, about the offence. They will hear from the victim if the victim chooses to put material before the jury. They will hear from a crown attorney, who may oppose the application. They will hear from the offender or someone on the offender's behalf.

Then that jury, that community jury, that group made up of average Canadians, sometimes, indeed often, drawn from the very community to which the offender seeks to return after parole, will decide whether the period of parole and eligibility should be shortened. And if Bill C-45 is to be adopted, they will have to be unanimous in that judgment.

So to those who urge democracy, to those who contend the wisdom lies with the people, to those who would have us decide by referendum or by recourse to the average Canadian, I say have confidence in the average Canadian, have confidence in that jury and in that process.

So the process in section 745 that would result from the changes proposed in Bill C-45 would be narrow and would be focused, available only after fifteen years, on a basis where the onus is on the applicant in a screening procedure, where the jury could refuse expressly or refuse by failing to be unanimous or refuse by failing to agree.

[Translation]

Consequently, I am not prepared to repeal this section of the Criminal Code, in particular because of the Charter, but also for reasons of public policy.

Section 745 represents the hope that offenders may change after serving 15 years of their sentences. I believe that this hope must be maintained for exceptional and deserving cases. This will be the effect of this bill.

[English]

The Chair: Thank you, Minister.

We're going to start with ten-minute rounds. Mr. Ramsay. But just let me say this, that by ``ten minutes'' we mean ten minutes, questions and answers. I'm going to be brutal.

Mr. Ramsay: You always are.

The Chair: No Ramsay minutes tonight.

Mr. Ramsay: I always considered that you're capable of brutality, Madam Chair. So I'll remember that.

Thank you, Mr. Rock, for appearing tonight and presenting us with basically what you told the House when you spoke on this bill on second reading.

You have gone to considerable lengths to suggest this process is in good hands because it's going to involve a jury picked from normal Canadians, off the streets, out of the shops, and so on. But that's the way all juries are picked; and some of the miscarriages of justice that we have experienced in this country and that have been exposed as miscarriages of justice have been done at the hands of juries. Therefore juries can only render a decision based on the information they bring. Of course I mentioned the Donald Marshall Jr. case and the Wilson Nepoose case, which I was involved in.

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Jurors will do a good job, but they can only do a good job based upon the information that is brought before them. That information is filtered through the police, the crown prosecutors and so on. Even defence counsels do not bring forward all of the evidence, for reasons of their own.

So when you suggest to us that all is well because twelve average citizens, who we place our faith and trust in, will be making the decision, I think there is a weakness in your argument, which I have just described.

After they finish with a first-degree murderer and they feel the parole ineligibility should be reduced, you point out accurately that it's going to go to a parole board made up of average citizens as well, picked from here, there and all over across the country. And yet last year, according to the report submitted by Mr. Gibbs to this committee, fifteen innocent people were murdered as a result of decisions made by those average people.

When they released criminals onto the street into society, fifteen innocent people were murdered. That's more than the horrifying spectacle that occurred at the École Polytechnique, and that was in one year. And Mr. Gibbs was rather pleased with that figure because it happened to be lower than the year before.

So I want to ask you this. Why are you prepared to support a parole system that poses such a deadly threat to society? Why?

Mr. Rock: What's at issue here of course is not the parole system but the jury at the section 745 application. Parole is something the person would seek subsequently, and Mr. Gibbs presumably was here to answer for the parole system.

Mr. Ramsay's criticism of the jury system could as well be made of the judge alone. We have a system run by and for human beings, and if Mr. Ramsay's point is that human beings are not infallible, that mistakes can be made, then I suppose that's pretty clear.

On the other hand, the jury on a section 745, by the very section itself, is to hear about the offender and about the offence, and is to hear also from the victim as a result of changes we introduced in Bill C-41, if the victim wishes to put information before the jury. They are going to see the four corners of the issue.

My point is that the question of whether the parole ineligibility period should be shortened is not going to be determined by judges, lawyers, bureaucrats, members of Parliament or appointed parole board members. It's going to be determined by people drawn off the streets.

Yes, the justice system has its frailties in every aspect, but I don't know how much better you can do than taking twelve average Canadians off the street; putting them on the panel; having them reflect community values; telling them about the crime, the criminal, the victim and the effect on the victim; having them look at what's happened over the last fifteen years; and then having those twelve average Canadians make a decision on the question of whether the ineligibility period should be shortened.

If you're going to do it, I suggest that is the way to do it - have average Canadians make that judgment. That's my point, and I think it's a great source of strength in the proposal.

Mr. Ramsay: Well, the question of course is whether or not we ought to do it. That's the question.

The fact of the matter is you are doing it. Your government is doing it, and the agencies of government are doing it. They're releasing criminals onto the streets who last year caused fifteen innocent people to lose their lives.

Mr. Rock: Let me speak to that point directly, if I may, because -

Mr. Ramsay: My question of course is on whether or not you are prepared to continue to support that kind of system, which produces that kind of result.

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Mr. Rock: I mentioned earlier that this is not about parole, it's about section 745. Let me explain what I mean by that. I meant to develop that, and in answer to this question, Mr. Ramsay, I will. And I will be responsive to your question.

You will find that none of those people who reoffended by taking another life were granted parole ineligibility relief by a jury under section 745.

Mr. Ramsay: My very point.

Mr. Rock: The statistics we've put before the committee and before members of Parliament are that the people who have had the parole and eligibility period shortened under section 745 have not committed murder and for the most part have not committed another crime. There was one case in which someone committed an armed robbery. The numbers speak for themselves as to what the experience has been so far, but on the evidence we have...

I'd like to know more about the fifteen people Mr. Ramsay referred to. I'd like to know more about the fifteen tragic deaths and the circumstances of those cases. None of them involve section 745 of the Criminal Code. If Mr. Ramsay's point is that there are frailties in the parole system, that's one thing. But to suggest that by keeping a process for murderers as tight as I've suggested in this bill we're going have murderers out murdering again...the facts just do not support that.

The facts do support the proposition that those serving life for murder are among the best bets for parole because the reoffending rate among paroled lifers is very low and the prospect of taking a second life is very remote.

So there are numbers and there are numbers, but section 745 has not shown that experience.

I think the more powerful argument for people who want this repealed is not that the people are going to get out again and kill again, because they don't - and if that's Mr. Ramsay's argument I say it's not his best argument. The more powerful argument against section 745 is that people who take a life should never get out. I've heard that argument and I respect it. I don't agree with it, Madam Chair, but there are those who say if you take a life you automatically forfeit the rest of yours or at least 25 years of it or who say life means life and should mean life in every sense. I don't agree with that argument, although I think it's the better argument.

Let me say in response to that argument that life does mean life in the sense that someone who is sentenced to life imprisonment is subject to conditions even after parole and if they breach them they can go back into prison. That's the case until they draw their last breath. Furthermore, 25 years without parole was only adopted in a context in which section 745 was also adopted, meaning a jury review after 15 years.

And if the issue is truth in sentencing, we should do a darn better job than we're doing at present of telling the people who are caught up in tragedies like this what the legal facts are so they're not taken by surprise and so they're not treated cruelly by a system that provides bait and switch, telling them one thing and furnishing another. As long as we treat victims with sensitivity and respect and tell them what the real facts are, I think we can answer a lot of those life-means-life arguments that are made as well.

The Chair: You have one minute, Mr. Ramsay.

Mr. Ramsay: Can Mr. Hanger use my minute?

The Chair: Sure.

Mr. Ramsay: Okay.

The Chair: You have twenty-two seconds.

Mr. Hanger (Calgary Northeast): Thank you, Madam Chair.

I would like to ask the minister what he means when he says victim. You have described victims - and I've sat in on some of your press conferences, Mr. Minister, as well as here - as if they were a small group off to the side who were most directly affected by the crime of violence. I would like to ask you how you would describe a victim.

Mr. Rock: When I was speaking this evening, I was referring primarily to those persons who have lost a member of their family to a crime. Whether that's one or more persons, obviously when someone's life is taken in a crime the community is affected. My reference, Mr. Hanger, was to those people who are most directly and personally affected by the tragedy. The people I've met with, at least, have been for the most part the surviving wives, husbands, fathers, mothers, brothers, sisters or children.

The Chair: That's it.

Mr. Hanger: Madam Chair, I know there's no time, so I'll catch it the next time round.

The Chair: Mr. Bodnar, ten minutes.

Mr. Bodnar (Saskatoon - Dundurn): Mr. Minister, as you know, one of the personal matters I've discussed and have indicated to you is the rigidity of the system we have now with the ineligibility of second-degree murderers for application for parole until ten years have passed, and for ineligibility first-degree murderers until 25 years have passed.

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Injustices always occur; you can never have the perfect set of facts. I'm wondering whether, under special circumstances - and you can call them extremely special circumstances or whatever - there should be a condition in the Criminal Code that would allow a judge, in giving reasons, to deviate from the prescribed parole eligibility.

Let me give you an example. If we take the case of Latimer in Saskatchewan, perhaps the judge could have deviated on that second-degree murder conviction initially and could have said that in these special circumstances Latimer is eligible to apply for parole in two or three or four years.

I'll use an example that's very close to Ontario. Perhaps in a case like Paul Bernardo the judge could have said there are special circumstances here and I order that you are ineligible for parole for 100 years. Then that person wouldn't even be able to make an application under 745. If he were so fortunate as to live 100 years, then he could make his application. In these very exceptional circumstances, is there a need or a possibility of such a provision in the Criminal Code?

Mr. Rock: That would go far beyond the scope of this bill, of course. I think it would also depart from a principle Parliament decided upon when it adopted this range of penalties for murder, which is that there be certainty and predictability. Offenders should know in advance what the consequence is, the public should be reassured that there is a certain fixed element to the penalty, and there should be no discretion. As you know, there is some discretion on second-degree murder, but the discretion should be within a fixed and narrow range so the public knows what it can expect in terms of these penalties.

I think to open it up to a wide discretion left in the eye of the beholder, the sentencing judge, would be a very significant departure. It's not something that's contemplated here. It may be something that some committee would want to look at in the future, but it's not something I plan to suggest or propose.

Mr. Bodnar: I raised that again, Mr. Minister, because, as you are aware, many years ago there was the Threinen case in Saskatchewan where the accused had killed four children. The judge,Mr. Justice Hughes of the Court of Queen's Bench in Saskatchewan, ordered that he not be eligible for parole for the maximum, which at that time was 20 years. He then had to make a recommendation to the parole board that this man never be paroled. Had such a term been in the Criminal Code he could have then made his order and said this man shall not be paroled, period.

It's all over, in very exceptional circumstances. I simply raise it as a thought for your officials to look at to give some discretion back to the courts. As you know and as I feel, judges generally do a very good job, and discretion in the hands of judges in exceptional circumstances is maybe a good factor.

Another matter that I want to simply mention, Mr. Minister, is the screening process you have indicated. The screening you've indicated will in many circumstances eliminate grief for the families. Another factor that I think is being overlooked quite often is that the screening process would also save a lot of money because many times these hearings under 745 take longer than the original trials. If it's screened, then those matters do not proceed, with a waste of court time, prosecutorial time, defence time, etc.

I do have one question about the role of jurors. When jurors give a decision, you're talking about unanimity, but is there still a provision that the jurors in such circumstances can be polled? Polling of jurors in circumstances like this could reveal one person who is opposed to the eligibility and could put some jurors into a very difficult position. I'm wondering if there is consideration to perhaps not allow polling in applications under 745.

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Mr. Rock: Not that I know of. I believe the polling procedure is available equally in 745 applications as it is in trials. I would have thought if the jury are unanimous, then they would be prepared to say so when polled.

Mr. Bodnar: If a jury could not reach a decision and then defence counsel polls them and eleven individuals indicate they favoured a reduction of the period of eligibility and one person then has the onus and the pressure put on him or her to indicate they did not favour it, it may ostracize that individual, put them into a very difficult position, as being the person who really determined the welfare of that individual.

Again, I raise that for your officials perhaps to look at.

Madam Chair, I do not have any further comments on this provision.

The Chair: Mr. DeVillers.

Mr. DeVillers (Simcoe North): Thank you, Madam Chair.

My question has to do with unanimity. Previously there was the two-thirds majority. Has the department or have you, Mr. Minister, given consideration to the eventuality of one person who has very strong feelings - I think you've indicated in your consultation process you've met many of those people - the effect they could have on the entire process under section 745?

Mr. Rock: Yes. And that can equally, of course, be said for the trial at which criminal charges are brought and considered and determined. However, there is available to counsel for the party a process of challenge, which has broadened in recent years as a result of the jurisprudence and which permits the testing of the views of jurors in a manner that ensures fairness in the process. I would have thought the right to challenge, the right to ask questions about fixed views or attitudes, would go some distance in offsetting any concern about unfairness in that regard.

Mr. DeVillers: I've heard the argument that because unanimity is used to convict, it should be used also to release. But do you not agree there's a significant difference between convicting a potentially innocent person and, in the case of section 745, allowing a convicted person the right to go to the parole board at an earlier date? There's still the safety check of the parole board.

Mr. Rock: Except that as I see section 745, it's an exceptional procedure. It's for the meritorious case and for the case that meets the test in the section. The screening mechanism will help to ensure that, and it seems to me the unanimous jury will do the same.

I think those who lose loved ones to crime realize... I don't presume to speak on their behalf, but I think the people I've met with are prepared to acknowledge that the justice system cannot be designed just for the families of victims, can't be designed just for police, can't be designed just for defence lawyers, can't be designed just for judges or just for parliamentarians. The criminal justice system exists for all those people, and it has to reflect an approach and a substance that are for society, not just for one participant in the justice system.

On the other hand, each of those participants deserves to be heard from respectfully. I must say I find it compelling when the families of the victims say look, the state had to tender evidence to a standard of proof and achieve unanimity of agreement in order to secure the conviction. We've now established that. Now some fifteen years have passed and the person is asking for consideration under the system. Well, let them come forward. Let them establish their case. Parliament has set the test, but let them do so to the same standard; let them persuade every member of the jury.

I think if we're going to have a regime under section 745 which is for the exceptional case, if we're going to show some sense of balance in all of this, that's not an unreasonable position.

The Chair: Now five-minute rounds. Mr. Langlois.

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[Translation]

Mr. Langlois (Bellechasse): Mr. Minister, my first remark concerns the process. Without touching on the substance of the matter, I find the manner in which this bill has been put before us at the end of the session somewhat bizarre. In such a serious matter, I would have far preferred an approach that would have enabled us to conduct our own inquiry, to hear witnesses, somewhat as in the case of the Young Offenders Act, and subsequently to make recommendations. The process is one thing; the bill we are discussing is another.

With respect to multiple and serial crimes, I don't find it very hard to subscribe to the proposals you are making. However, I would need you to convince me of the need for a preliminary hearing by a judge of the provincial superior or supreme court.

I believe I understand that this judge will have to determine whether a jury has a real prospect of releasing the inmate or recommending that he be released. I would like to have some clarification on this point.

Second, I don't at all understand the unanimity rule that you propose to institute. Determination of guilt is not the issue here. In my view, the degree of conviction that the jury must have is not the same at this stage as at the point when it determines whether a person is guilty.

Unanimity is required in a trial to determine guilt because the reasonable doubt rule applies. Each of the jury members must be convinced in his soul and conscience that the person is guilty.

When a jury is empanelled under section 745, it is not asked to make a determination of guilt. The Crown is not asked to prove its case beyond a reasonable doubt. This time, the inmate is not asked to prove his case beyond a reasonable doubt, but to state his point of view, and the jury rules on a balance of probabilities. If we impose the unanimity rule, we are imposing much stricter criteria and are changing the entire dynamics of the application of section 745.

In a group dynamic, this section 745 jury does not really make a decision, but rather makes a recommendation. The National Parole Board may or must then intervene if there is a positive decision by the jury. To require the jury to have a unanimous opinion seems to me to be too much. This will make section 745 unenforceable to all intents and purposes.

In these circumstances, if you have considered the possibility - I'm not saying this is the option I favour - of adopting Mr. Nunziata's bill as your own and repealing this section, the effects will be virtually the same. These are the questions I had to ask you at this point.

Mr. Rock: First, I don't agree that my proposal regarding jury unanimity is tantamount to repealing the section. You said, Mr. Langlois, that the jury does not decide, that it merely makes a recommendation. That is not true, in my view.

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The jury will have a decision to make. It will have to decide whether the applicant is entitled to apply for parole. As Mr. Nunziata said, according to the statistics, a very large number of persons who have applied for parole have succeeded.

So I don't think it's the same thing. It is simply a process to establish an agreement among12 persons who, after hearing all the testimony and considering all the circumstances, including the crime and the victim's history, decide that this is an exceptional case and that the inegibility period should be reduced.

Second, you asked why we chose the month of June to introduce our bill. I have two answers to that.

First, we introduced bills throughout all of last year. As Minister of Justice, I tabled more bills in Parliament than all the other ministers. We are very busy. We introduced bills on various important and difficult matters and I appeared before your committee a number of times regarding the bills introduced.

With respect to section 745, we did not complete our consultations with the parties concerned and with the ministers of justice and attorneys general of the provinces and territories until May.

Second, your committee was busy for a long time with Mr. Nunziata's bill, which proposed that section 745 be repealed. That bill was referred to your committee on second reading in the House a year and a half ago. Since that time, you have had the opportunity to consider this matter in detail.

Third, you asked what criteria the Superior Court judges had to consider in the screening process. As I said during my presentation before the committee, section 745 itself determines those criteria. The judge must decide whether, in accordance with the provisions of section 745, the applicant has a prospect of success with the jury. If so, the applicant may appear before the jury. If not, the matter is over.

[English]

Mr. Hanger: Madam Chair, on a point of order.

The Chair: Yes, Mr. Hanger.

Mr. Hanger: I know that you cautioned the committee and the participants here to be precise, that the time limits would be as stated. I believe that in this particular case with Mr. Langlois the answer took 10 minutes in total.

I would also like to make this point -

The Chair: Perhaps I could correct you on that, Mr. Hanger. It's been 8 minutes and57 seconds. Mr. Langlois is having his first round, which is 10 minutes.

Mr. Hanger: May I finish my point of order?

Given the importance of this particular debate and the questioning of the minister, I would appeal both to you and to the minister to extend the time by at least one half-hour this evening so we can continue questioning the minister. This bill was introduced on short notice. There was not ample opportunity for debate in the House of Commons. Again, Madam Chair, I appeal.

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Mr. Rock: It's fine with me if it's okay with you.

The Chair: Is there agreement to extend the minister for half an hour?

Some hon. members: Agreed.

The Chair: Mr. Langlois.

[Translation]

Mr. Langlois: Thank you for your answers, Mr. Minister. I would like to draw a parallel so that we could have more information.

At the proceedings stage, during the preliminary inquiry, the burden is on the Crown to prove to the judge that a properly instructed jury could find the accused guilty. Would you accept the proposition that the judge hearing an application under section 745 would have to determine that the jury to be empanelled could release the inmate if evidence to that effect could be put before it?

I have trouble understanding the judge's role in this case relative to the role of the judge presiding over the preliminary inquiry at the proceedings stage.

[English]

The Chair: Just briefly, if you can, Mr. Minister.

Mr. Rock: I think they're quite different. In the preliminary inquiry, as Mr. Langlois knows, under the jurisprudence, and particularly United States v. Shephard, in the Supreme Court of Canada, the test is whether there is evidence on which a jury, properly instructed, could convict. So the preliminary inquiry judge is not to consider matters of credibility, just to weigh the evidence as presented to see whether the possibility of conviction arises if a jury is properly instructed.

But that's not the test Bill C-45 contemplates for the screening mechanism. What's contemplated here is that a judge would look at the application in writing, look at whatever the crown proffers in writing as response, regard whatever the victim chose to put forward, if the victim chooses at that stage to take part in the written proceeding in the screen. The judge would take all of that into account, look at the criteria in section 745, and ask himself or herself whether there was a reasonable prospect of success.

Now, obviously that term is not defined in the bill, but it is set out in the English and the French languages, each of which has dictionary meanings, and we have judges who are quite used to making such determinations in a wide variety of contexts and who will put their mind to the issue. The stated purpose and policy of this provision will be well known. It will be up to the court to determine whether there is a reasonable prospect of success. Can this person reasonably be expected to persuade a jury unanimously to reduce the parole ineligibility period based on what section 745 provides, if they are permitted to proceed?

I responded in the English language so it would take less time, Madam Chair.

The Chair: Excellent. Good performance. You'll be welcome back.

Mr. Nunziata, five minutes.

Mr. Nunziata: Thank you, Madam Chairman.

Mr. Rock, when all is said and done, the issue, it seems to me, is what the penalty should be for the worst crime in the Criminal Code, first-degree murder, and the most serious second-degree murders. You indicated the criminal justice system should not be designed for any one particular individual or group in society, it should be designed for society.

Mr. Rock, the overwhelming majority of Canadians support the repeal of section 745. Victims groups are unanimous in supporting its repeal. Darlene Boyd, Debbie Mahaffy, Joanne Kaplinski, and Gary Rosenfeldt are all here this evening. They all support the repeal of section 745. The House of Commons voted a year and a half ago to repeal section 745, including many of the members here this evening.

So my question is this. Exactly whose views are reflected in this bill, in this desire of yours to retain section 745, if the criminal justice system is supposed to be designed for society and society is making it very clear to you it would like the minimum period of incarceration for first-degree murder to be 25 years? Exactly whose views are being reflected in this bill?

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Mr. Rock: First of all, as to what the penalty should be for the worst crime, premeditated murder, I think the penalty should remain what it is in the code now, which is life imprisonment. The code also provides at present for parole, and it also provides, for those who are sentenced to parole and eligibility beyond 15 years, for a community jury to look at them after that time. So I think the regime that at present is in the code should remain, with the changes that I've proposed in Bill C-45.

Mr. Nunziata: I have a question, Minister, in terms of whose views are reflected -

The Chair: Mr. Nunziata, let him answer.

Mr. Rock: You asked three questions. That was the first.

The second is that the majority of Canadians agree that it should be repealed. Many of the people you named agree that it should be repealed. Just whose views does this bill represent?

Well, one of the advantages of this hearing process is that you'll have others apart from me sitting in this chair. You'll have people sitting in this chair who feel strongly that section 745 as it exists at present is fine, thank you very much, and shouldn't be changed at all. Some feel very strongly that it should not be repealed and that no purpose is to be served by repealing it.

Mr. Nunziata suggested that at second reading of his bill the House of Commons voted to repeal it. That's just not right. The House of Commons voted to send that bill to committee for study, a study which, by the way, has never really been done. I guess we're doing it, in part, right now. There was no vote to repeal, and indeed many members told me at the time that if the vote had been straight up and down whether to repeal, then they would not have voted in the same way. It was a vote to send the bill to committee. So I think we should bear in mind what the facts are.

I'm answering your question. Hang on a second. You might not like the answer. That's a different matter -

Mr. Nunziata: My time is limited.

Mr. Rock: So I'm not as confident as Mr. Nunziata in saying what the majority of Canadians want, or what the majority of Canadians want us to do with section 745. I am here to tell you the policy decision that the government has made in putting forward this bill, and to answer for it. That's also what elections are about. We'll answer for it at the election.

Mr. Nunziata: With respect, Mr. Rock, you're mistaken as to the purpose of a vote at second reading. A vote at second reading is not a vote simply to send to committee. It's to adopt a bill in principle, and that's the exact wording of the motion as it was put to the House. So the House did vote in principle to repeal section 745 and send it to committee. You're reading into the vote something that really isn't the purpose of a second reading vote.

In any event, you seem to want to justify this bill on a number of grounds. You refer to other jurisdictions and the average length of incarceration. That's the real issue in your mind, isn't it? It is the period of incarceration for first-degree murder. You referred to it tonight. You have referred to it on other occasions. It seems to me that you believe that the average period of incarceration should be in line with those in other western nations, because you've used that argument on a number of occasions.

With respect to multiple murders, if you're concerned about the distinction between someone who kills once and someone who kills on a number of occasions, why wouldn't you support consecutive sentences for murder, as opposed to using it as a way to gain support for this particular bill? I ask this because you really don't make a distinction, do you, between someone who -

The Chair: Mr. Nunziata, let him answer and we'll get on to the next round.

Mr. Nunziata: I haven't put the question, Madam Chairman.

The Chair: Well, it's taken 5 minutes and 20 seconds.

Mr. Rock: In answer to the first question, on the average period of incarceration, I refer to the average periods of incarceration to establish the context in which section 745 was adopted. Some say that it was adopted by stealth, that it was a ruse, that it was a trick on the unwary, that it was sneaked into the Criminal Code in a secret deal in 1976. That of course is nonsense. The record is clear that there was debate. All these matters were gone into at the time. Hansard speaks for itself. Section 745 was an integral part of the regime for murder penalties adopted 20 years ago.

In terms of whether I would support consecutive sentences for murder, I well might. I've encouraged policy work to be done in the department on that very subject. We're not dealing here, though, with consecutive sentences for murder, for multiple offences. We're dealing now with section 745, and I say at the very least section 745 should not be available for someone who's been a repeat offender when it comes to murder.

The matter of consecutive sentences for multiple murders should be left for another day, but should be looked at.

The Chair: Thank you.

Mr. Nunziata: I have a question. What, in your -

The Chair: No, Mr. Nunziata.

Mr. Minister, you can answer that afterwards. Mr. Gallaway has a question.

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Mr. Gallaway (Sarnia - Lambton): Mr. Minister, you started by asking two questions, one of them being whether section 745 should be repealed. You made a note that this section has been a matter of principle in our Criminal Code for 20 years. What has changed so that you would want to amend this principle of 20 years' standing?

Mr. Rock: As I said when I introduced the matter tonight, I think the changes contemplated in Bill C-45 respond to problems that have been identified with section 745.

Obviously there are those who wish to repeal it and this bill won't satisfy them. They want it gone as a matter of principle. But for those who see a place for the community jury after 15 years, I think there are problems with the present approach. I don't think it is right, Mr. Gallaway, that the offender, no matter what the offence, should have the unfettered right to drag the family of the victim in front of a jury for a painful process. I just don't think it's right, and I think that's a principled reason for proposing that change. It's just not right and it serves no purpose. If a judge can't be persuaded that the offender has a reasonable prospect of success in front of a jury, then the application shouldn't go forward.

Second, I believe it is an appropriate test to determine whether all 12 members of the jury can agree. This is intended to be exceptional, and I think if you can persuade all 12 members of the jury then it is the exceptional case. There are important elements of denunciation when a life is taken, and it's only when you've met that standard that you should be able to depart from the 25 years of incarceration without parole.

Third, for the reasons I've just stated, the very least we can say is that those who have taken more than one life should suffer a different penalty from those who have taken one life. Yes, the person who has lost a single member of the family suffers absolute tragedy and emotional pain that is unimaginable. But society has the right to say there is a distinction between losing one member of society and more than one member of society, just as society always says that repeat offenders will be dealt with in the criminal law differently from first offenders or sole offenders. This measure does that.

Section 745 has been there for 20 years, but these changes respond to real issues with the section.

Mr. Gallaway: If an individual in the course of committing a crime murders a policeman, let's assume that individual is sentenced to 25 years. If that hypothetical individual in a different scenario were to kill two policemen, then the worst that could happen would be 25 years. Why would we have different parole application criteria for multiple murders when sentencing only involves one criterion, which is concurrence?

Mr. Rock: First of all, I don't agree that the sentence is 25 years. The sentence is life imprisonment with no possibility of parole for 25 years, subject to section 745. The penalty is not25 years; it's life imprisonment. As I said at the outset, even if a person is granted parole, if they breach the terms of parole they can be reincarcerated. That's the case until they breathe their last and die.

Second, it's not true to say even at present that the person who takes a second life has exactly the same penalty. Even at present, if they reach 25 years - suppose they're denied section 745 consideration altogether - and they make a parole application, the board can and will take into account that there were two lives lost, not one. That will weigh in the balance of determining the parole application.

Third, we're not here dealing with consecutive sentences for multiple murders, as Mr. Nunziata pointed out, but we are dealing with a provision that's intended to be exceptional. It's intended to provide a departure from the 25 years of incarceration for first-degree murder before parole eligibility. It seems to me that when we're dealing with someone who has taken more than one life, we're entitled to take that into account. It's reasonable and proper for us to say that the exceptional remedy will not be available at all for someone in that category.

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I don't know why it's difficult to perceive the difference between the single offence and the multiple offence. It's reflected everywhere else in the criminal law. I know that the sanctity of life means that if we lose one person to murder it's an unimaginable tragedy, but if we lose two people to murder, we've lost two people instead of one and there is a difference.

I'm saying that if we're drawing up a penalty regime for murder and we're building in, as they did 20 years ago, a process after 15 years of having a community jury look at the case, then we're intending an exceptional recourse. If we have the option now of denying that exceptional recourse as a measure of the difference between multiple and single murder, then I think it's not an unreasonable thing to do.

The Chair: Mr. Langlois, you have five minutes.

[Translation]

Mr. Langlois: Thank you, Madam Chair. I'm essentially coming back to the criterion of unanimity. Like a number of my colleagues here, I belong to the generation of the late 1940s, those who studied law when the major changes in criminal law in Canada were made under Mr. Trudeau's government. This was a somewhat Rousseauist approach to criminal law, in which an attempt was made to give the individual, man or woman, a chance, on the assumption that he or she was essentially good and could be rehabilitated. That was the thrust of the 1970s reform with respect to bail, for example, or the abolition of corporal punishment, such as whipping.

We saw that adjustments had to be made. They were made during the 1970s and somewhat during the 1980s as well. The right for any person to be released during the hearing was restricted. It seems to me that we are now on an even steeper slope. I don't know whether the assessment that was done at that time was wrong, but your department seems to be animated by a new dynamic.

You yourself mentioned a moment ago that there were many criminal law bills. There were indeed many. Today, another wind is blowing, leading you to introduce other bills which, in my view, are perhaps too numerous and a little too often drafted under the influence of emotion. You must admit that this is a field where it is easy to act under the influence of emotion, particularly when one considers the victims and their misfortune.

So I would like to talk again about a criterion that causes me some difficulty, the criterion of the jury's unanimity when it must determine whether an inmate should be released. At this point, I perceive the jury as being much more of a civil jury that must determine on a balance of probabilities whether a person who is tried before that civil court is liable.

Juries in civil cases generally do not have the same criteria for making their decision. They do not have to comply with the unanimity rule. In civil proceedings, where the jury does not have to determine whether a person is guilty or not guilty, juries have long been given a certain amount of latitude and even a certain right to dissent for part of the jury.

In this case, one-third may be dissenting. I might be prepared to accept the remaining three-quarters, but I find there is an enormous difference when you go from two-thirds to unanimity. Perhaps there should be a compromise, given the very different situation in which the jury finds itself.

Furthermore, I have always thought that section 745 was out of place in our law. It appeared in a somewhat bizarre manner. In our criminal law, a section 745 jury is entirely different from other juries we know of. It is a very specific jury, which is somewhat reminiscent of the somewhat difficult situation in which the 1976 government found itself when it did not have a majority to pass its bill on the abolition of the death penalty.

Should section 745 really be maintained? Couldn't a person apply directly to the National Parole Board? Should it be maintained in a somewhat more restrictive form? I agree with you on that point.

I wanted to raise all my questions together in order to give the Minister an overview of my position.

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Mr. Rock: I read with interest your speech in the House of Commons in which you described the changes that took place in Canadian society in the 1960 and 1970s, changes reflected in the philosophical approach of the criminal justice system, and I agree with the analysis you made.

In my view, however, it nevertheless remains that the decisions reached by the jury under section 745 do not involve civil justice. This is a question that involves the criminal justice system. That is not the same thing as civil obligation.

[English]

It's not a question of whether someone has a cause of action or has suffered actionable damages; it's a matter that touches the criminal justice system. It very much involves the community. Is this person appropriate for consideration in this exceptional way? Should they be permitted before the expiration of 25 years, or as the case may be, to seek parole? It involves matters of community safety and fairness to the victim, and matters arising from the circumstances of the offence and of the offender. There's rehabilitation. All of those issues have to be assessed by a jury.

I suggest that this is not just a matter that is analogous to a civil claim whereby you have one person's claim for redress against another. You have here something that is societal. I think that the unanimity requirement, just as in the criminal trial itself, properly respects the societal interest that's at stake. So I don't find the analogy to the civil matter persuasive, and I think that it's appropriate that we move to unanimity in this question.

The Chair: Mr. Milliken, you have five minutes.

Mr. Milliken (Kingston and the Islands): Mr. Rock, can you tell us when the first person became eligible to apply under section 745?

Mr. Rock: My memory is that it was about 1988. Is that right?

Mr. Milliken: I don't know. I doubt it. Did the act not -

Mr. Rock: It was 15 years after 1976.

Mr. Milliken: It had to be in the 1990s, I would think.

Mr. Rock: Hang on, that's not necessarily so. I don't think it was in the 1990s, because the time runs from the time of incarceration. So it doesn't necessarily run from the time of the trial.

Mr. Milliken: I see. Have you got the figures on the total number who have become eligible since?

Mr. Nunziata: I could just be helpful here. The first one was in 1987, Réal Chartrand.

Mr. Milliken: All right. Thank you.

Mr. Rock: There you are. I was a year off. We had those numbers, Mr. Milliken, and we distributed them to the members of Parliament as well. Do you have a copy there?

Mr. Milliken: I just wanted to get it on the record.

Mr. Rock: Okay, sorry. Up to December 1995, 175 people were eligible.

Mr. Milliken: That's your most recent figure?

Mr. Rock: Up to the end of December 1995, yes.

Mr. Milliken: Okay. I've got those figures in the document prepared by the researcher. I thought we might get something more up to date, but that's fine. I'm willing to work with those figures.

Of those, a total of 63 applications have been completed as of December 31, 1975. Of those 63, 50 were granted a reduction. Of the 50 granted a reduction, can you tell us how many have been released?

Mr. Rock: I'm consulting the same document. The current status of the 50 who received some reduction in parole eligibility date is as follows: six were denied any form of parole; five are not yet reviewed for parole; three are not yet eligible for parole; seventeen are on full parole; eight are on day parole; six are on unescorted temporary absence; one of them is dead; two were revoked for a technical violation of parole conditions; one is unlawfully at large; and one person reoffended by having been convicted of an armed robbery.

Mr. Nunziata: Sorry, those figures are as of when?

The Chair: Mr. Nunziata.

Mr. Rock: As of December 1995.

Mr. Nunziata: They are up to date as of March 31 -

The Chair: Mr. Nunziata, you're out of order. You're going to be permanently out of order if you don't stop.

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Mr. Nunziata: I'm trying to be helpful.

The Chair: You're not doing so.

Mr. Milliken: I thought it was.

Anyway, I want to then ask this. In the number of reductions, there were 50 reductions, of which three are ineligible still. They had a reduction, but they haven't yet become eligible to get it under the terms of the reduction that was granted.

In the answer to one of the previous questions, you indicated that this was intended to be exceptional. Would you not agree that when out of a total of 175 who are eligible and only 50 get a reduction granted of any kind - I'm sure some of those are quite modest reductions - this is exceptional in fact?

Mr. Rock: That can be said. I don't wish to be argumentative, but the other way of looking at the numbers is that of those who did apply, namely 74 people, 50 applicants, or 79.4%, were granted some reduction in parole eligibility. Almost 80% were granted some reduction.

Mr. Milliken: That's of the applicants, but of the eligible persons to apply, a whole number didn't get that presumably because they thought they wouldn't be successful.

Mr. Rock: I can't comment on that. That may be the reason they didn't -

Mr. Milliken: That could be a very compelling reason why they might not apply.

Mr. Rock: That may be so. I don't know.

Mr. Milliken: Certainly they are not eligible then for parole unless they do apply. Is that not correct?

Mr. Rock: That's correct.

Mr. Milliken: So none of the persons who have been convicted of an offence of first-degree murder and who have applied for early release or of second-degree murder and who have applied for early release under the terms of section 745 have committed murder subsequent to any release they may have obtained?

Mr. Rock: That's correct.

Mr. Milliken: If this is so, is it not a bit premature to be looking at changes to this section when it has been in operation in effect for less than ten years and when the experience with it has been what can only be regarded as favourable from the point of view of the success rate of the section in keeping people in or seeing that only ones who are reasonably safe are released?

Mr. Rock: That is true, Madam Chair, if your only criterion is the safety of the community. Say the only criterion for assessing the performance of section 745 was on the question of whether people who were granted parole earlier than would have otherwise happened by reason of the section's existence had committed another crime. Then you would judge the section a success. But I don't believe that's the only criterion you can apply.

I think it's also imperative to consider the other weaknesses in the present system I've described. There's the unfettered option available unilaterally to the offender to subject the victim's family to a jury hearing and experience again the trauma of the loss. There's the fact that the section is available equally to those who have committed more than one offence as to those who have committed one offence. There's also the fact that eight out of the twelve jurors can agree to a reduction. I think those features should also be taken into account. So community safety in terms of the rate of reoffending of applicants is not the only criterion.

The Chair: Mr. Hanger.

Mr. Hanger: Mr. Minister, today is my day for receiving letters, I should point out. I received two of them, as a matter of fact. One is from Mr. Scott Newark of the Canadian Police Association. The second one is from a Mr. Clifford Olson. I'm going to refer to Mr. Clifford Olson's letter first, because I think it hinges specifically on what we're talking about here.

Mr. Rock: You really think you want to do that, Mr. Hanger? Hasn't he had enough attention drawn to himself?

Mr. Hanger: That could very well be, but I think the attention is only -

Mr. Rock: Are you not just furthering his own strategy?

Mr. Hanger: Mr. Minister, I asked you a question.

Mr. Rock: I'm shocked. Why are we helping Mr. Olson in his own strategy of drawing attention to himself?

Mr. Hanger: I think the man has become arrogant because the system has permitted him to do so. And you, Mr. Minister, and the governments before, have given him that platform.

A voice: Isn't that what this bill is all about, Allan?

Mr. Hanger: This is what the bill is all about.

The Chair: Order.

Mr. Hanger: This man will never say die until he does in fact die. It's the second letter I've received from him. I think it's just an example of the decay in the criminal justice system that we see this time and time again from a person who should be given no attention. But you have given him the platform, Mr. Minister. You have given him the platform to do it.

Mr. Rock: You're reading from his letter, Mr. Hanger, and I think it's outrageous.

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Mr. Hanger: I haven't read anything from his letter. I'm telling you he's advertising now his serial cards, if you must know.

The Chair: Mr. Hanger, why don't you get on with your question? You've used up a minute and a half.

Mr. Rock: He writes to me regularly too, but I don't draw attention to that fact, Mr. Hanger.

Mr. Hanger: I might point out, Mr. Minister, that this is an example that will occur in every paper across this country whenever a hearing comes up. The victims will hear again their case being dragged forward and the words of the killer, and the whole memory will never die. You have allowed that through this bill you have introduced here, with the courses of appeal and on and on.

The second letter I would like to refer to - and it deals again directly with this bill - is from Mr. Scott Newark. Mr. Newark is in the lobby business. Even though he's with the Canadian Police Association, he still lobbies the politicians quite effectively. It's addressed to me, Diane Ablonczy and Jack Ramsay - in this particular case the Reform Party members. He states:

Accordingly, I urge you in the strongest possible terms I can muster, not to be on the record as having voted against them.

- meaning the government -

I understand your frustration and indeed anger at the Liberal government and its docile Justice Committee which has steadfastly refused to allow debate of the real issue of outright appeal but in our mutual desire to see the `touchdown' scored, let us not stand against the `forty yard pass' presented with these amendments.

- in other words, the bill itself -

I hope you will forgive my football analogy but it is one which I believe makes the point.

Finally, I am seriously concerned that this government, which has been forced kicking and screaming into these amendments, may look for an excuse not to proceed or to attempt after the fact to lay blame on those who opposed C-45. It would not exactly be the first time that the Liberals played fast and loose with the truth at the expense of the criminal justice system in Canada.

Mr. Minister, I'll tell you, I want to be on record as one of those who believe murderers should be kept in and never get out, and I'm going to vote against this bill.

But I would like your comments first on the very topic of closure that we talk about when it comes to Mr. Olson and people of his ilk and every murderer who is brought forward and has his name printed in the paper for the victims to see time and time again. What are your comments about closure?

Mr. Rock: First of all, Mr. Olson's name had not been mentioned tonight until you mentioned it. You chose to do that. I think that's outrageous, but that's your choice. I've not mentioned him, and I can tell you I've made it clear from the outset, contrary to what John Nunziata just said tonight, that this bill is not about any individual. This is a bill about what this government thinks should be done to change section 745 to make it better. That's the fact.

These are changes we propose to improve section 745 for the reasons I've given here tonight.

I pray to God that I'm never in the position the victims find themselves in. I've met with people who have suffered losses we can't imagine, and it's very difficult for me to meet with those individuals, because it's very emotional and there's very little any of us can say to a person who's experienced that loss.

But at the same time, I don't know which of us on this committee has the wisdom, the insight or the monopoly on what society wants and needs to sit here tonight and pontificate and say for all the people serving life for taking a life, regardless of the circumstances of the offence, regardless of the circumstances of the offender, regardless of the reaction of the victim and the family, notwithstanding whatever circumstance might come forward, it's going to be life without parole eligibility for 25 years, absolutely, perfectly and invariably. I don't know which of us has that corner on wisdom that they could do that.

The system that was put in place twenty years ago has this to be said for it. While there is certainty of penalty in that there's life imprisonment, there's also the possibility of parole. Yes, the general rule is 25 years for first-degree murder, but after 15 years the community will look again, consider all the circumstances and be able to distinguish one case from the other.

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Madam Chair, before this series of hearings is over you're going to hear from people who have lost loved ones to crime who support retaining section 745. You're going to hear from them.

So there are cases and there are cases... And there are circumstances I can give you as far as offenders that would move you emotionally, circumstances about who they were and what they were when they committed the offence and circumstances about the fact that there really isn't an interest to be served by keeping them incarcerated for any longer than fifteen, seventeen or perhaps twenty years and that society is better off getting that person out and having them contribute to society in some productive way.

It's very easy to be categorical about these things. What I'm proposing is a system that's very narrowly focused, that is truly exceptional, that has to be screened by a judge, that isn't available to certain categories of offenders, that requires a unanimous jury and that's going to be for the exceptional case. That at least provides flexibility for those circumstances we cannot foretell here tonight, and it leaves that element in the system.

The Chair: Thank you.

Mr. Bodnar: Madam Chair, on a point of order, I'm wondering if Mr. Hanger would be willing to file the letter he made reference to with the clerk for distribution to the full committee. It's the letter from Scott Newark.

Mr. Nunziata: Madam -

The Chair: Mr. Nunziata, could we just finish this point of order?

Mr. Hanger?

Mr. Bodnar: He's made it available. That's fine, thank you.

The Chair: Thank you.

Did you have a point of order, Mr. Nunziata?

Mr. Nunziata: No. Do I have another opportunity to ask questions?

The Chair: No, not on this one. We're finished. I think Mr. Milliken has one brief question, but I can't give you the full five minutes.

Mr. Milliken: I have more than one question.

The Chair: There are three other witnesses tonight, sir.

Yes, Mr. Hanger.

Mr. Hanger: I would like the original of the letter that I just turned over to the clerk given back. If she could just make copies of -

The Chair: There's no problem with that.

Mr. Milliken.

Mr. Milliken: Mr. Rock, how many years -

The Chair: Yes, Mr. Nunziata. Excuse me, Mr. Milliken.

Mr. Nunziata: Madam Chairman, we have the Minister of Justice before us. It's his legislation. The government members have questions to ask and others have questions to ask. I think it would be unfair to terminate the discussion on this important piece of legislation at this point. Perhaps we can have another round. The minister has indicated a willingness to answer questions.

The Chair: I think we'd like to get on to the other witnesses we have tonight, Mr. Nunziata, some of whom support your position. I don't know...

Yes, Mr. Ramsay.

Mr. Ramsay: Madam Chair, we agreed on half an hour. It's beyond that point now. If we're not going to continue beyond the half hour, then this round should end if you're not going to grant additional time.

The Chair: The minister has agreed. Thank you, Minister.

Mr. Milliken: Madam Chair, on a point of order, can I then ask for additional time?

The Chair: Yes.

Some hon. members: Agreed.

Some hon. members: No.

The Chair: No, there will not be another round. If everyone agrees, Mr. Milliken may ask his question.

Mr. Nunziata: On the same point, Madam Chair, this bill is being introduced at the eleventh hour before the summer adjournment, and here we have an opportunity to ask the minister questions, and government members for some reason want to stifle debate. What kind of a way to run a railroad and to pass criminal law... The night is young.

Mr. Milliken: You can ask questions when the minister comes back after second reading.

Mr. Nunziata: Oh, are you indicating that the minister is coming back again?

Mr. Milliken: No, but I assume that will be the case.

The Chair: Thank you, Minister. It's been a pleasure having you here. We'll move on to our next witness.

Mr. Rock: Thank you, Madam Chair.

The Chair: Professor Healy, please.

Professor Patrick Healy is from McGill University's faculty of law. Professor, I note that you are an expert on the legal issues that are involved, not necessarily on the social issues, so I'm going to point that out to my colleagues on committee. Professor Healy, we have a shorter period of time than expected with you, but I ask you to make your observations and then we'll have some time for questions.

Professor Patrick Healy (Individual Presentation): Thank you, Madam Chair.

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I am very grateful for the opportunity to appear. I'm afraid I was asked by the committee only on Friday if I would, so I may be excused for not doing my homework adequately for this appearance. I hope I have the indulgence of the committee.

I am a member of the faculty of law at McGill. I teach criminal law. I'm also a member of the bar, but I appear this evening in my personal capacity, representing neither the opinion of the Bar of Quebec, of which I'm a member, nor my university, of course.

I would like to say a few brief words about this bill. Given the late hour, I will be as brief as I possibly can.

What this bill does is make a minor adjustment, or an adjustment at any rate, in the operation of section 745 of the code.

What section 745 in its present state does is give the convicted offender the chance of a chance - in other words, the chance to appear before the parole board. It doesn't guarantee a trip to the parole board; it only gives the accused a chance. As the minister said, it gives the convicted offender an automatic chance at a chance.

This legislation will qualify the opportunity that the convicted offender has to go in front of the jury for them to determine whether he or she should be entitled to go before the parole board. So it excludes a particular class of offenders from making an application under section 745; that's what I'll call the multiple killers.

The second thing it does is for all others who are eligible it provides a kind of screening device that allows for a judge to review the file before it is considered by a jury, and if it is going to be considered by a jury, that jury should be unanimous in its decision.

The policy basis for this legislation... Clearly it's highly controversial and I won't pronounce myself on it. I don't feel that's my function.

In any issue relating to sentencing or correctional policy it is of paramount concern not only to you as parliamentarians but to the courts that the protection of society be the paramount consideration. What is being discussed before you in the proposal of this bill and in the testimony that you will hear is how best society can be protected by the mechanisms that relate to parole and the review of sentences.

In my view - and this is strictly a personal opinion - the case for adjustment of section 745 cannot be made on the numbers alone. The gentleman who is not here at the moment, I guessMr. Milliken, in a conversation with the minister brought out a number of figures. I think those figures support a conclusion, which is that section 745 has not yet been shown to be a failure. Perhaps it would in the fullness of time be shown to have been a failure, but that has not been shown so far. As the minister reported, the figures seem to be that only one person who has successfully achieved earlier release under section 745 has committed another offence, and that was an offence of armed robbery.

However, it seems to me that when one considers the arguments in favour of an adjustment to section 745, a powerful argument can be made on the basis of what the family members of victims have to go through. Those people, in some senses, are also under a life sentence. They're under a life sentence of recalling, reliving, reconsidering their loss.

What the bill does is say that those people should not be put through the ordeal of having to rehear and relive the circumstances of the offence or offences unless there's a good reason to do it. And the good reason is the reason the judge would have find in the screening process proposed by this legislation. If the application is without merit, then clearly it will be dismissed and it will be unnecessary for a full reconsideration of all of the evidence to take place.

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Now, with respect to the law, Madam Chair, I don't think anyone can appear in front of you and say this bill, or virtually any other bill Parliament is asked to consider, can be guaranteed free of charter challenges. This just is not the reality of current Canadian legal life. Everything is up for challenge. However, after a very quick review of the legislation, I would point to two areas in which I would predict there would be a challenge. Obviously, I cannot tell you what the outcome of such a challenge would be.

The exclusion of multiple killers - if I may use this phrase - from section 745 would probably be challenged by some person who falls within this class. So the argument would then have to take place on why Parliament has chosen to exclude from eligibility this group of people.

Now, the defence of this position taken in the bill must be that these people, who have killed not once but more than once, have made the choice to take more than one life. This is the increased gravity of their offence. This is the moral culpability that perhaps justifies disentitling them from making an application under section 745. It is precisely the culpability in choosing to commit this most serious offence more than once.

If I may go back for just a moment, I want to underscore that the exclusion of multiple killers from applications under section 745 would operate prospectively. That is to say, it would operate in the future. This restriction of the bill's operation probably mitigates to some extent charter vulnerability.

With respect to the screening functions and the requirement of jury unanimity, clearly it would be argued on behalf of a convicted offender who makes an application that this screening procedure puts a previously non-existent hurdle in his or her way and that this somehow contradicts the person's constitutional right to a fair proceeding to determine his or her eligibility for parole.

The bill provides that the convicted offender would have the right to make representations to the judge in the screening process. Admittedly, this is not going to be by way of oral evidence or oral submissions, at least not as the bill proposes. This too could be a source of charter challenge. But the convicted offender is entitled to make submissions before the judge prior to a decision being taken. So there has clearly been some effort to allow for a hearing in the broadest sense of the term, even though oral representations would not be made.

Regarding the requirement of unanimity, with due respect to Mr. Langlois, it is difficult to draw precise analogies between this procedure and a trial, whether it is a civil or a criminal trial. This measure, which would demand unanimity, is clearly intended to ensure the community with the strongest possible voice will allow an application to go forward for consideration - sorry, a judge rather.

I don't think I'll say anything more at the moment, but I'll be happy to take any questions.

The Chair: Mr. Langlois.

[Translation]

Mr. Langlois: I would like you to elaborate further on the Charter arguments you raised. You spoke of challenges by multiple killers who could invoke Charter arguments. Which provisions of the Charter could they invoke at that stage?

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[English]

Prof. Healy: I'm not sure exactly what the question is. Is it simply to explain whether there could be a charter challenge to the class of offenders? If that's the question then the answer is yes. Obviously there would be a charter challenge as to why Parliament has focused on this particular treatment of multiple killers, why it has chosen to disentitle this particular group of people for early consideration of eligibility for parole.

I think the answer is a fairly blunt one; it is to reflect the increased gravity of the offence that is committed by that class of offenders. However, I might say that it is subject to some dispute as to whether that decision by Parliament, if Parliament were to take it, is valid on the basis that there does not appear to be convincing, empirical evidence that this particular class of offenders is more likely to repeat the offence.

[Translation]

Mr. Langlois: If I understand correctly, the challenge is made under section 15 of the Charter?

Mr. Healy: No, section 7.

Mr. Langlois: Then, if we apply tests from various judgments, we can see prima facie that there is indeed a violation. Do you believe that the second test that should be applied is whether this is not justifiable in a free and democratic society? It is likely that the challengers would then have a fairly serious barrier to overcome at the second stage of determining the bill's constitutional validity.

[English]

Prof. Healy: Whether a violation of the charter under section 7 can be saved under section 1 is itself an enormous jurisprudential question on which there's some uncertainty. However, I'll answer the question more broadly because I think a charter challenge to this legislation would be brought not only under section 7 but under some aspects of section 11.

Whether it could be justified as a reasonable measure in a free and democratic society is, I'm afraid, something I cannot answer. That's the kind of empirical data I haven't been able to prepare for today's appearance. I just don't know the answer to that. Clearly there would have to be comprehensive attention given to practices in other free and democratic states.

[Translation]

Mr. Langlois: One of the problems I see in the implementation of this act - in others, but also specifically in this one - is what I would call the test of national standards. There are many areas where I do not approve of national standards, but this matter lies squarely within a field of federal jurisdiction. The provinces are being asked nothing and federal law is being enforced uniformally across Canada.

Clearly, and the figures show this, depending whether you reside in such and such a region of Canada, you enforce section 745 differently.

Do you believe that Bill C-45 will maintain this regional disparity and that a jury from a given province, because of the social climate and various factors, will again be empowered to make a particular judgment? Do you see a way that would make it possible to have the same tests from coast to coast for deciding whether an inmate should be released? It seems to me, once again, that the bill does not touch on this aspect and even adds an additional element to it.

Let us consider a judge of a superior court of criminal jurisdiction who lives in a province where the majority of the population and the majority of stakeholders are opposed to section 745. Despite being in good faith, that person will be influenced and led to be much more restrictive, whereas a judge who is in a Canadian region where the approach is more permissive will certainly be more liberal. Is it possible, in your view, to find a standard that applies everywhere in Canada in the same way? If so, in what way?

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[English]

Prof. Healy: You've asked an enormously complicated question. The simple answer, if I can try to give one, is that there is no way in a system of justice run by human beings who have social mores governed by or created in their local environments that you're going to be able to create a uniform decision-making process across the country.

The Supreme Court of Canada, in speaking about section 745, has recognized that it is essentially a discretionary decision in the hands of the jury. That means the jury is empowered to exercise its view of the facts, taking into account all relevant criteria. So I don't think it's possible to provide for a mechanism that would provide uniformity of results across the country.

However, I would also add that in looking at the way section 745 works at the moment, you have to take into account the spread of the prison population where the relevant offenders are for the purposes of making the application. That may in large measure explain some of the disparities you see in the results. In Quebec it appears there's a much higher chance of success under section 745 than in other provinces.

[Translation]

Mr. Langlois: That leads me to the crucial point that you raised briefly a moment ago and which is the matter of unanimity as opposed to two-thirds. It seems to me that the two-thirds rule precisely makes it possible to tone down the entire process in the sense that we have four jury members with whom we can work to a greater degree.

It is quite possible that, in a given part of Canada, we will have a unanimous decision or an 11-to-1 decision, whereas in another part, we will have an 8-to-4 decision. It seems to me that this variable makes it possible to standardize the section 745 standard of implementation, whereas, with the unanimity rule, we are going to lock ourselves into a situation in which a resident of the province of Alberta will not be able to enjoy the same benefits, objectively speaking, as a resident of the legal districts of Hamilton, Chicoutimi or Halifax.

This is where I saw a proportionality rule. It seems to me that we should keep the two-thirds criterion or establish an improved or changed three-quarters criterion rather than the unanimity criterion.

[English]

Prof. Healy: You may be entirely right, but obviously the intention of the unanimity requirement is to ensure that only the most deserving cases go forward. To follow your observations, it would be possible for that degree of confidence... The application of section 745 could be achieved on something less than unanimity, but I don't comment on that. It's a choice.

There are some other problems in my view, though. I don't think it's insuperable, but there is something rather difficult about the way the bill proposes how some of the issues should be decided. For example, the judge in the screening process has to decide whether there's a reasonable prospect of success for the application. That means the applicant, according to the bill, has to prove on a balance of probabilities a reasonable prospect of success. I put it to you that there's something conceptually difficult in the idea that you can prove a possibility, prove a reasonable chance of success on a possibility. It's not a fact.

The Chair: Thank you, Mr. Langlois. Mr. Ramsay.

Mr. Ramsay: I have a number of things. We never have enough time to cover all the ground we'd like to.

I was interested that you said the protection of society should be given paramount consideration. You touched upon the failure of section 745, but you didn't give a definition of that.

But instead of getting into those philosophical areas, I'd like to ask you this, and they're constitutional and legal questions. Our legal research on this bill indicates that the applicant would have the right to appeal the decision of the superior court judge if he was denied. Is that right?

Prof. Healy: I think so, yes.

Mr. Ramsay: Can he appeal that to the Supreme Court of Canada? What's the limit of the appeal?

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Prof. Healy: Can he appeal the decision of the Court of Appeal?

Mr. Ramsay: What's the limit of the appeal? He can appeal the superior court judge's decision.

Prof. Healy: To the Court of Appeal.

Mr. Ramsay: If he's turned down, where can he go from there?

Prof. Healy: The next place obviously would be the Supreme Court of Canada.

Mr. Ramsay: So the way is open for first-degree murderers to appeal to the Supreme Court of Canada on this.

Prof. Healy: Whether they would accept to hear the case is another matter altogether.

Mr. Ramsay: But that's not the question.

Prof. Healy: Sure. I think the bill imports the procedure relating to appeals in indictable cases. If I'm correct on that, and I think I am, the next possible avenue would be to the Supreme Court of Canada. But I can't be certain that the bill allows for that.

Mr. Ramsay: But it does allow an appeal to the Federal Court of Appeal?

Prof. Healy: No, to the court of appeal of the province.

Mr. Ramsay: We have had some discussion about why for multiple murderers who have been convicted up until the time of the passage of this bill, there's that split in terms of time. The legal opinion I have heard indicates that this bill could be made retroactive to include multiple murderers. What is your opinion on the constitutionality of retroactivity to include multiple murderers?

Prof. Healy: You would be guaranteed, Mr. Ramsay, and I'll give you my last nickel on this, that there would be a severe constitutional challenge. The fact that it would be challenged is beyond doubt.

Whether the challenge would succeed, I don't know. The argument would be that you are changing the terms of a sentence by removing the eligibility of that class of offender, that you're changing the conditions of the order of the sentence imposed in the trial. If that argument succeeded, and it seems to me there is a possibility that it would, the bill would be invalid at least so far as its retroactive application to multiple killers is concerned. That presumably is why the drafters of the bill said it would only have prospective application with respect to multiple killers.

Mr. Ramsay: You're aware, of course, that any successful application to a superior court judge would provide an offender with a full judge and jury hearing. If the offender was successful, then it would go back to the National Parole Board.

The National Parole Board has made some mistakes, last year seven mistakes - seven mistakes that cost seven people their lives. Seven murders were committed as a result of the release of prisoners who were not convicted of murder but of a lesser offence. They were released by the National Parole Board and they went on to commit a murder last year. If you believe that the protection of society should be given paramount consideration, what do you say about those statistics?

Prof. Healy: I don't want to appear in any sense insensitive or flippant, Mr. Ramsay. I cannot think of a system that could be designed to guarantee against mistakes.

Mr. Ramsay: I know of one.

Prof. Healy: You do?

Mr. Ramsay: Yes. You don't grant a first-degree murderer an appeal of any kind. They spend their life sentence without eligibility for parole.

Prof. Healy: Then you've just excluded the possibility of a miscarriage of justice, and that's as serious an offence to our system of values.

Mr. Ramsay: I don't understand. Explain the miscarriage of justice.

Prof. Healy: What if there has been a conviction of the wrong person?

Mr. Ramsay: Is section 745 meant to deal with that?

Prof. Healy: But you said deny them the right of appeal.

Mr. Ramsay: Through section 745.

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Prof. Healy: Oh, I see.

Again, I return to the general observation that I don't think it's possible to guarantee against errors, but what this proposal does is it provides a screening mechanism for the possibility to go before the National Parole Board. So there are in a sense two steps before any serious consideration may be given to the release of an offender. That won't guarantee against an error, but it will certainly cut down the possibility if it works well.

Mr. Ramsay: What would you recommend to the committee and to the justice department if it would save one life?

Prof. Healy: Mr. Ramsay, I don't think I can give you a professional opinion on that. I can give you a personal opinion.

Mr. Ramsay: That would be fine.

Prof. Healy: My personal opinion is that I would not want to see the Criminal Code section 745, or any of the other mechanisms in our system, amended to abandon the possibility that an offender might be rehabilitated within the period of ineligibility.

Mr. Ramsay: Is rehabilitation the determinant factor when it comes to continual -

Prof. Healy: It's not the determining factor. It's a relevant factor, but if you exclude the possibility of any application being made under section 745 you throw that factor away. In my view that would be an error.

Mr. Ramsay: The justice minister indicated at his press conference that victims would be able to make written submissions at the superior court level. So as soon as an application to a superior court judge occurs, the victim's family will begin to undergo the reawakening of all the horror and the grief. Would you agree with that?

Prof. Healy: I don't think that can be excluded; that's true.

Mr. Ramsay: Therefore it doesn't really matter whether they're successful or not in reaching the second stage, which is a judge and jury hearing. This new level of appeal is going to do to the victims, at least to a degree, what the old 745 process allowed for.

Prof. Healy: I think the critical words in what you just said are ``at least to a degree''. That's true. What the proposed amendments would do is provide a mechanism for that to be kept as brief as possible and to a minimal degree.

Mr. Ramsay: Why do you say that?

Prof. Healy: Because if the judge of the superior court rejects the application, having taken into account all the relevant factors, there would not have to be a full rehearsal of all the circumstances surrounding the offence.

Mr. Ramsay: You mean all the facts will not be presented to the judge to consider?

Prof. Healy: I think there would be an abbreviated version of the facts. I don't think there would be a full rehearsal of all the facts. Moreover, I would point out that while it's not a complete answer to your question, the procedure in front of the judge is designed as much as possible to be on paper rather than with oral evidence.

Mr. Ramsay: It's interesting to me that you suggest that a superior court judge would be making a decision based on less than all the evidence available to him.

Prof. Healy: I didn't say it would be less. It would be everything that the applicant and the parties think is necessary for the judge to make the decision on a preliminary basis of whether there's a reasonable prospect for success. You may be entirely right that it would be the strategy of an applicant to bring the fullest possible recital of the facts before the superior court judge.

Mr. Ramsay: Thank you, Professor Healy. I'm out of time.

The Chair: Ms Torsney.

Ms Torsney: I have a point of order. I noted some statistics Mr. Ramsay was using in his testimony during this round and during the previous appearance of the minister. In the first round there were fifteen people murdered and in the second round there were seven. I'd like to know if we could have those statistics; they keep changing and I don't understand them each time he presents them.

The Chair: Mr. Ramsay.

Mr. Ramsay: Yes. In fact, those statistics came from the submission by Mr. Willie Gibbs. The fifteen deaths or murders occurred as a result of parole or early release; seven resulted from the National Parole Board's decision-making. It's a total of fifteen, according to his figures that I have seen, but the National Parole Board was involved in only seven of those fifteen.

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Ms Torsney: I would like to point out for the record that earlier he said to the minister the parole board made a mistake and fifteen people died as a result of their mistake. So I think we should not be playing -

Mr. Ramsay: Well, we can correct that.

Ms Torsney: - fast and loose with the information.

The Chair: Okay. We can sort that out later.

Mr. Ramsay: It's a system of the federal government, regardless, Madam Chair.

The Chair: Pardon?

Mr. Ramsay: It is a system of the federal government that made these decisions.

Ms Torsney: Regardless of eight people's lives?

Mr. Ramsay: It is fifteen.

The Chair: Mr. Nunziata, you have five minutes.

Mr. Nunziata: Mr. Healy, is it not correct to say that the multiple-murder provision would come into effect only fifteen years after the bill has passed?

Prof. Healy: I have to check the wording of it very carefully. The computation of who's eligible is... There are some difficult points here, but I think it would apply from the date on which the act comes into force, to anyone who has previously killed.

Mr. Nunziata: No, it's for those multiple murders that take place after the act comes into force.

Prof. Healy: But does it not also apply to someone who has previously killed and kills again?

A voice: No.

Prof. Healy: If that's the case, if it's the latter, then it has more immediate application. But I'd have to check in order to be certain.

Mr. Nunziata: How does it have more immediate application? Let's assume someone is within the system now and they've killed once; they're released. Let's say they've served fifteen years and they're successful on a section 745 and they kill again.

Prof. Healy: Where they do it again?

Mr. Nunziata: Yes.

Prof. Healy: This October?

Mr. Nunziata: Yes, if they -

Prof. Healy: I think it applies to them.

Mr. Nunziata: So they'd have to wait fifteen years before they again became eligible for section 745 -

Prof. Healy: Oh, I see. Yes.

Mr. Nunziata: So, in any event, you're looking at a charter challenge in fifteen years' time.

Prof. Healy: Perhaps.

Mr. Nunziata: With your understanding of the bill, is there any situation that would trigger a charter challenge under the multiple-murder provision within fifteen years?

Prof. Healy: I can't be certain of that at the moment. Let me think about it, and I'll answer as we go on.

This is one of those questions, if I may say so, that after a day and a half of quick reading I'm not comfortable in answering.

Mr. Nunziata: Right. But it clearly doesn't apply to any multiple killer presently within the system?

Prof. Healy: I think that's correct.

Mr. Nunziata: With respect to the screening mechanism, is there any other provision in the criminal law in Canada that is similar in nature, where a judge has to screen an application in advance of a hearing or a trial?

Prof. Healy: Screen an application for parole eligibility consideration?

Mr. Nunziata: Or anything, other than a preliminary inquiry.

Prof. Healy: I'm not aware of something that is quite close to identical to this. I think this would be almost unique. However, some parallel can be drawn with section 690 of the Criminal Code, in the sense that - and only in this sense - both 745 and 690 are concerned, generally speaking, with the notion of clemency.

Section 690 is also on the basis of a paper application that has some of the same features that you would find in these proposals. The difference, of course, is that it's not a judicial decision.

Mr. Nunziata: According to subsection 745.61(1) of the bill, the judge will consider only written material.

Prof. Healy: Yes.

Mr. Nunziata: How is that material to be tested if it is not in affidavit form or cross-examined on? How do you determine the veracity of the material before a judge?

Prof. Healy: The ability of the judge to determine the credibility of the information that's presented is obviously highly limited. What I suggested earlier bears repeating; namely, that this provision could possibly be challenged on the basis that it doesn't allow for oral submissions, for oral evidence to be called and for the evidence to be tested.

Mr. Nunziata: In your opinion, would that be a successful challenge?

Prof. Healy: I never bet on the success or failure -

Mr. Nunziata: Would it be more likely or less likely to be successful?

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Prof. Healy: It could succeed in a court of appeal whether it's on the charter challenge or on the basis of a breach of natural justice. It could be either way.

Mr. Nunziata: So if that is challenged and the challenge is successful, all of a sudden you've introduced an extra layer of hearings. In effect you would have two hearings, one before a judge and the second before a judge and a jury.

Prof. Healy: Possibly.

The Chair: Mr. Nunziata, that's it for this round.

Mr. Bodnar.

Mr. Bodnar: Thank you, Madam Chair.

Following up on that point of affidavit evidence, surely if there is a dispute on an affidavit, the court orders a trial of an issue and examinations on affidavits.

Prof. Healy: Yes, and that would undoubtedly be in the inherent jurisdiction of the court, the general powers of the courts of superior jurisdiction.

Mr. Bodnar: Yes, so then there is surely no charter challenge, because when there is a disagreement on written affidavits, the matter is determined through, in effect, a little trial within a trial.

Prof. Healy: Yes, but the point is there would almost certainly be a challenge. Whether it would succeed or not is a different matter. I suspect the response of the superior courts, both the original judge - the trial judge, to to speak - and the court of appeal, would be to recognize the ability of the trial judge to hear oral submissions.

Mr. Bodnar: Sure.

With respect to the provision dealing with an application to a judge, through the screening process before an application is brought under section 745, surely that may be challenged, but not successfully challenged, because that provision is there just to indicate to those in the most obvious of cases that they don't have any hope whatsoever on a section 745 application.

Prof. Healy: Is that a statement or a question?

Mr. Bodnar: It's both.

Prof. Healy: Well, as far as the statement part of it is concerned, I make no comments.

As far as the question is concerned, it seems to me that, as you know, the responsibility of the court will be to ensure the applicant has a procedurally fair hearing. I'm not aware yet that we've come up with a pristine definition of procedural fairness that would allow me to tell you what you should put into the bill, but provided that the superior court judge has the power to hear all that is necessary in order to make the decision given to him or her, it seems to me that the challenge, ultimately, by some process or another, would fail.

Mr. Bodnar: In a nutshell, then, I take it that different provisions may be challenged perhaps under the charter, but you would concede that at this point it's very difficult to say whether that challenge would be successful or not.

Prof. Healy: The one thing I can guarantee is it would be challenged. That's just the way we live now. Whether or not it would succeed, I don't know.

What I would go back to, though, is that this bill does not come up with a radically different definition of what the protection of society entails in our law; it makes an adjustment to what the protection of society requires. It seems to me that the adjustment is slight in so far as it restricts the applications that can be brought by some convicted offenders and on the other hand it doesn't throw away the possibility that an offender may be rehabilitated within the system.

Mr. Bodnar: Sir, it's my understanding - and you can tell me whether or not you're aware of these facts and whether or not you agree - that between January 1, 1975 and March 31, 1990, a period of fifteen years, 752 full paroles were granted to individuals serving life terms for murder. Only five of those parolees ever committed murder again. Are you aware of those facts?

Prof. Healy: I'm not aware of the precise figures, but the ratio you described I am familiar with.

Mr. Bodnar: That's less than 1%.

Prof. Healy: Yes, and it's borne out actually by the practice so far with section 745 itself.

Mr. Bodnar: In fact it's in the range of 0.7%, correct?

Prof. Healy: Yes.

Mr. Bodnar: Okay. Would you not agree that also, of those others who had been paroled, none were convicted of any other homicide offences, such as manslaughter or any offence like that? Only the five individuals recommitted, and none were involved in any other offence of attempted murder or causing death.

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Prof. Healy: Again, to the extent that's a question, I won't give an answer because I'm not familiar with that set of figures. To the extent that it's a statement, I make no comment.

Mr. Bodnar: All right. I can tell you I'm simply referring to fact sheet number five produced by the John Howard Society.

Would you also, from your studies, not agree that paroled individuals who have committed murder are among the lowest reoffenders or are the lowest reoffenders of any group that is paroled?

Prof. Healy: What do you mean by the lowest?

Mr. Bodnar: I mean as a percentage of those who reoffend after they've been paroled.

Prof. Healy: It is very low, but I can't give you the precise figures.

Mr. Bodnar: All right.

I'm splitting my time with Ms Torsney.

Ms Torsney: There are some people who would prefer us to in fact wipe out the section for everybody who's currently in a jail in Canada and under a murder conviction rather than make these changes. What about the Charter challenges to that scenario? When would they be likely to occur?

Prof. Healy: I am sure they would occur at the earliest opportunity. The difficulty with repealing the section as a whole is that it applies to a very wide class of offenders. I think we've got something like - I've forgotten the exact figures - 2000 offenders in that class in our penitentiaries at the moment.

The difficulty is that the Supreme Court, in talking about sentencing and penal policy, has over and over again come back to the idea that there has to be individualized assessment of each case. The challenge would be on the basis that there is a total denial of individualized consideration of the class of cases if all convicted murderers were denied section 745.

Again, I make no comment about whether it would succeed or not, but at any rate the argument is that it's indiscriminate in its application, that it doesn't show individualized concern.

With respect to this bill, it shows a focus by Parliament, not by the courts or by any administrative body...it shows a concern by Parliament to focus on the particular class of offender that is regarded as having committed the most serious offence in the most serious way, that is, by killing more than once. So the scope of the challenge is much narrower, because it's reinforced by that particular concern rather than applying to all convicted murders.

Ms Torsney: Then if the scope would be much narrower, would the results of an appeal, successful or not, apply to everybody within that narrow scope unless they could prove there was an additional thing they could appeal on?

Prof. Healy: If I understand the question correctly, unless they can show there's something otherwise defective with the entire scheme, yes, it would apply to that particular class.

If the multiple killer succeeded in a challenge, then the multiple killer would be placed in the same position as everyone else, namely, he would have the possibility of making an application under section 745, presumably as amended with the screening function.

Ms Torsney: And in the other scenario, then, if we have this we have a narrow scope of challenge if we were to enact this bill, and the alternative, which would be to wipe out section 745 for everybody who's currently in a penitentiary, would allow that there would be several different types of challenges that could be launched. Is that correct?

Prof. Healy: I think so. I think that there's probably another ground for charter challenge that I should mention to you - I haven't mentioned it so far - and that is the possibility that a court might conclude that denying the possibility of early consideration of parole to the entire of class of convicted murderers is itself cruel and unusual punishment.

Ms Torsney: So your comments on Bill C-234, then, are that it would very quickly prompt a challenge and that it would in fact be immediate. It would be next week, potentially, even if -

Prof. Healy: Bill C-234. Is that the private member's bill, Mr. Nunziata's bill?

Ms Torsney: Yes.

Prof. Healy: Again, I'm confident in saying that I think it would be challenged, and I think there's perhaps a wider ground for success than there is with respect to this narrower class.

Ms Torsney: I think that's the end of my time.

The Chair: Thanks, Ms Torsney.

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I want to ask one question that hasn't been asked that concerns me. If a person is incarcerated now for first-degree murder, would it not be open to them to argue that they were not convicted under these rules and that therefore this screening process should not apply to them because it's a retrospective application of the law?

Prof. Healy: Yes, it would certainly be open to them to make that challenge.

The Chair: Are there in existence any similar cases or precedents for this?

Prof. Healy: There is the Cunningham case in the Supreme Court of Canada that dealt with a question that has some similarities, but again, it's not identical. In that instance the Supreme Court ruled that the retrospective application of some restriction on parole eligibility did not offend the charter. It wasn't a murder case; it wasn't section 745. The court came to the conclusion that while there was a liberty interest in the offender in making an application for parole ineligibility, the statute did not operate in an unconstitutional fashion.

I'm not convinced one way or the other that the Cunningham case will decide the validity of this bill, but it does bear close attention.

The Chair: Cunningham does bear on this, then.

Prof. Healy: It's relevant, but it's not determinant.

Mr. Nunziata: On a point of order, Madame Chairman, Mr. Healy has given some very important evidence this evening, and I wonder whether it is possible for Mr. Healy to put his opinion in writing so we might have the benefit of reviewing it.

Others will have and provide their opinions. Mr. Healy is an expert, and if he's so willing I would think it would be very useful for the committee to have his opinions in writing with respect to some of the questions raised this evening.

The Chair: There are two points I would make. One is that it will be in writing because it'll be in Hansard. The second is that in all likelihood these hearings will conclude tomorrow evening, and I would hate to impose that on Professor Healy.

Mr. Nunziata: The bill will go to the Senate as well for approval, so the senators might appreciate opinions.

I have a legal opinion here that is at odds with some of the evidence given. I would like to be able to compare the two opinions.

The Chair: You have the Hansard though.

Mr. Nunziata: If Mr. Healy is satisfied that Hansard will accurately reflect his views... I don't think Hansard will.

Prof. Healy: If the committee would accept a very brief statement - and I emphasize brief - of my principal conclusions that I've stated now and perhaps some of my concerns that lie behind them, I'd be happy to do that. But if the request is before tomorrow evening, the answer is absolutely not.

The Chair: Mr. Ramsay.

Mr. Ramsay: On a point of order, the very fact that Professor Healy has not brought forward and presented a brief - at least I haven't seen one - is indicative of the haste in which this bill is moving through.

The Chair: Thank you for that observation.

Professor Healy, if you have it available, at some time in the near future we would appreciate receiving what you've outlined.

Prof. Healy: Thank you, Madame Chair, and if I may say so, thank you all for your attention. These have been hastily prepared comments, and I hope they've been of assistance.

The Chair: Thank you very much.

The next witness is from the John Howard Society of Canada, Jim MacLatchie, executive director. Mr. MacLatchie, we'd be happy to hear your presentation, and then we will have questions.

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Mr. Jim MacLatchie (Executive Director, John Howard Society of Canada): I want to express my appreciation to the committee for hanging in this evening. I gather you have other witnesses beyond me. I'm impressed by your stamina, if nothing else, Madam Chair, and I would like to say thank you on behalf of the John Howard Society of Canada for the opportunity to speak to you this evening.

I have to say, to begin with, we regret very much the very short time we've had to respond. This is a piece of legislation we were aware was under consideration by the government. And of course we were aware of Mr. Nunziata's bill, and so on. But I think we have to take exception, at least to begin with, with some of the original news release information the minister produced in presenting the bill. There are a number of things. One is that there was government concern about enhancing public safety. We don't believe this is really under issue, and I'll explain this as we move along.

I think we would like to refer to the backgrounder information the minister produced indicating the government concluded a review of the section, including extensive consultations. I think it is accurate to say we had an opportunity to meet with government officials about the issue of section 745, but we did not have any information about what the legislation would look like. So we haven't looked at the specific legislation and haven't had time to do justice to the work required.

To this end, I will be asking at the conclusion of my comments that the government consider holding this over, until after the summer at least, to give us adequate time to deal with the specifics of it. This would also allow more time for other organizations. We know at the moment there are other organizations, aside from ourselves, that are also against any changes to section 745.

I would also briefly like to bring the committee up to date on the fact that John Howard Societies have been in operation and have been working with inmates for over 75 years. Indeed, there were prisoners' aid societies at Confederation. We have a great deal of experience with inmates and with the prison system over many, many years.

The John Howard Society represents people who have a common mind about certain values in the criminal justice system. I would like to mention two of them. One is that people have a right to live in a safe and peaceful society. As well, people have the responsibility implied by this right to respect the law. This is something we all subcribe to. Secondly, when involved with the criminal justice system every person has intrinsic worth and the right to be treated with dignity, equity, fairness and compassion without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. In our view, this includes inmates.

I'll share with you another of our views that might bear on what I want to say. Justice is best served through measures that resolve conflicts, repair harm and restore peaceful relations in society. These are things we profoundly believe in. They govern a lot of our thinking about issues such as these.

First of all, we don't believe this is bad law. We believe section 745 is good law. We believe it's good law because of a couple of things. First, it is universal and it applies to everybody, in this case to all inmates. Secondly, we believe it is good law because it uses and trusts to the principle of the capacity of citizens acting as a jury to make judgments on our behalf. We think this is valid.

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We do not accept that there has been any crisis of security as a result of section 745. As a matter of fact, we think it's worked rather well and we are quite surprised that this has come to be such an issue. There's no evidence that it has failed at all. We've yet to see any evidence that it has failed.

I think to change the law so as to deny access to some inmates as opposed to all really destroys that principle of universal access I was talking about. We believe it's the thin edge of the wedge that begins to redefine how we do things in a punitive kind of way and in an escalating kind of way. We are very concerned about the law being manipulated by various kinds of apparent fears in the national community that begin to impinge on more and more people.

For example, if we talk about multiple murderers or multiple killing at this stage, when do we get to one killing? If we get to one killing, when do we get to manslaughter? Then if we get to manslaughter, how do we stop? Where does this go if we go in this direction?

As far as we're concerned, the restriction on the use of a screening process prejudges the decision that rightfully belongs to a jury. It's simple. We believe juries work. We believe that we as citizens have to believe that juries work. They have worked in this case and we don't believe that should be tampered with. Requirement for unanimity of the jury will practically guarantee no early parole application because there is no room for even a modicum of doubt in that process.

Frankly, we see the use of the jury and of unanimity appropriate in the first instance at first trial, because there we're dealing with the facts, the absolute facts of the case. In this situation we're dealing with judgments based on a perception of the event over time, a perception of the degree of impact incarceration has had on an individual inmate. We're making judgments that are a little further removed from the fact.

We believe that section 745 actually provides the safeguards of an open court and that a jury from the community is a legitimate and acceptable thing. We believe it's a measure of hope that modifies the punitive aspects of the sentence and recognizes the value of rehabilitation in criminal justice. It does happen; people do change and they can be influenced for the better and take their place in the community, not without protections, to be sure, and that's fair. We've accepted that. It allows for the possibility now and in the future of being able to respond in a humane way to very unique circumstances.

So we ask the committee, Madam Chairman, to set aside the legislation so that we can really work more fully on the actual law. We would like an opportunity to see other organizations that have an interest in this have a chance to come forward and make comments, as we have been able to do. I think when we begin to chip away at such principles as the jury system and the matter of right to access to the law, it's a slippery slope indeed, and we are quite concerned about it.

Thank you very much.

The Chair: Thank you.

Mr. Langlois.

[Translation]

Mr. Langlois: I'll be brief. You raised a number of concerns that I raised in my speech on second reading, first the process and the urgent need to make amendments to section 745 quickly. I'm not convinced that this section is the best possible section; I have had serious doubts for a long time. After hearing what people across Canada think about it, I find it should be thoroughly reviewed. I agree with you on this point.

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I was rather in favour of the proposal to restrict access for people who have committed multiple murders or serial murders. If we had to make a quick decision, we would not be in a position to analyze who would be affected by this provision and I am also somewhat concerned about that. You are raising problems as we advance in the debate.

The text of section 745.1, which requires that evidence in writing be laid before the judge of a superior court of criminal jurisdiction is also a subject of concern. In accordance with the audi alteram partem or duty to act fairly rule, there seems to be something wrong if a judge has to rule only on documents without any chance to hear the inmate, the representatives of the Attorney General and possibly third parties. Couldn't the judge put questions to the people who are making an application under section 745.1, which becomes a preliminary, a screening of applications that should be made in future?

Lastly, I wholly subscribe to your comment on jury unanimity. I said it a moment ago when the Minister was present and I said it in the House last Friday: the unanimity rule is related to the tests of evidence and determination of guilt and to the notion of reasonable doubt and the burden of proof that arises therefrom.

Here the burden of proof is closely related to the notion of a balance of probabilities, of a discussion that may take place among jury members as to what the balance of probabilities is. A margin of one-third seems to me acceptable and satisfactory. It does not seem to have worked poorly.

With regard to section 745, Mr. Nunziata has nevertheless cleared up matters and enabled us to see things clearly. What I think works poorly is that, when the jury must make a determination under section 745, it does not currently have all the elements that would enable it to consider the matter comprehensively, to get a comprehensive picture.

In this sense, I think amendments should be made to section 745 in order, among other things, to give victims the right to a full and complete hearing and the right to advance their point of view. But here again, we won't do that by hastily passing a bill.

I therefore urge the persons responsible for the administration of justice in this country, the Department of Justice and the Attorney General of Canada, to slow down a bit so that we can continue our consideration of this question.

I view this consideration with a very open mind. This question concerns me a great deal. I taught these provisions for about 20 years, from the time they were passed until I entered politics. They are of great concern to me. I am fascinated by the workings, the approach and the compromise that was reached in 1976 and that led to the abolition of the death penalty, but compared to the acceptance of section 745... This was an eleventh hour compromise.

My remarks were more of an editorial nature, but please feel free to comment.

[English]

Mr. MacLatchie: I think it's a couple of things.

First, I will borrow without shame from some work of the Church Council on Justice and Corrections, who I believe you will be hearing from. There was a study of the first 40 judicial review cases, and six involved multiple victims. They say that had these proposed changes been law then, you would have had them remain in prison for up to another ten years, despite the fact that juries of citizens granted immediate parole eligibility in three of the cases, reduced one period of ineligibility to 21 years, and denied the other two. These three people are back in the community doing citizen things and I think that's something important we should remember.

The other thing your comments reminded me of was the 25 years. These provisions had as much to do with the fact that the usual time spent in prison for a murder was about 13 years at that time. I mean, 25 years was a heavy-duty responsibility and shocking in that context, and now it's been cast in such an entirely different light that, as I said, we agree it requires more study.

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The Chair: Mr. Langlois.

[Translation]

Mr. Langlois: No, it's all right.

[English]

The Chair: Mr. Ramsay.

Mr. Ramsay: Thank you, sir, for attending tonight at this late hour.

I would imagine you have dealt with victims of first-degree murder, the families.

Mr. MacLatchie: Yes, the organization has.

Mr. Ramsay: Have you personally?

Mr. MacLatchie: No, I have not personally.

Mr. Ramsay: You talked about repairing the harm. How do you repair the harm that a first-degree murder causes members of the family?

I want to read part of a letter that was sent to the justice minister and get your comments on that very question. This lady appeared before our committee on another bill. She's the grandmother of Sylvain Leduc, who was beaten to death here in Ottawa. She says this:

The most painful thing in life is to live with the knowledge that your child lies naked and cold in a morgue...

My grandson was in the morgue for three days. I was frozen to death; I could not warm up. I was in a hot tub for three days. I couldn't stand it until I knew he had clothes on him.

My heart is a pump that keeps blood flowing through my veins. I have a special and sacred place situated below my stomach. ... I call it my soul. It is there that love, hope, hate, courage, faith, humour, anger, compassion, happiness, conscience and God dwell. ... The horrible murder of my grandson has made my soul very sick. At times it is numb, other days it is like jello. It has lost its desire for living. It doesn't care much about everyday things any more. It has lost its zest for food, sex, enjoyment, travel, books, etc. There is an emptiness there, a hole that will never be filled. My grandson left this earth with a part of it.

Horror and fear also live there. Sylvain's murderers have done this to me. ... When all is quiet, I cannot stop my mind from imagining the pain and horror Sylvain suffered before dying.

The letter goes on, but I'd ask you, how do you repair that kind of harm that has been done?

Mr. MacLatchie: Mr. Ramsay, that's real and it's powerful. I don't think it can be repaired. What I will say is this change won't do it either.

The victims in the history of our criminal justice system have been left behind. A considerable amount of work needs to be done, and the provision of as much compassion, support and assistance as the society can bring to bear will have to do it.

All we're saying is these kinds of changes are not the answer to that. They don't fill those kinds of holes.

Mr. Ramsay: Well, when we look at the principle of justice, it's based upon damage that is done. It's based upon the value of the thing stolen. How can we answer the demands of victims like this when they express their horror at the possibility of the person who inflicted this pain and damage upon them being given an opportunity of early release after serving just fifteen years? How do we do that?

Mr. MacLatchie: It's not easy, but I can tell you, Mr. Ramsay, some victims who have suffered equally horrible things will come forward during the course of your meetings, or you'll be made aware of them from other organizations, and will say they have, somewhere in their hearts, the capacity to make that leap. It's not that the hole has been repaired or filled and it's not that there's anything society can actually offer them that will replace what they've lost.

That compassion is critical. We have to do that, as a society.

Mr. Ramsay: But the point I'm making is this. What do we say to those people who tell us the early release of the murderer will make that pain worse? What do we say to them?

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Mr. MacLatchie: Are you asking what you say to make that pain worse? You can't say anything that will solve the pain.

Mr. Ramsay: I'm sorry, perhaps I could ask my question again. What do we say to those victims who tell us that the early release of the murderer who caused the pain will enhance their suffering, that to know that the killer is free will enhance their pain and suffering? How do we deal with those people?

Mr. MacLatchie: There's no answer to that, Mr. Ramsay, and you know there's no answer to that. There's no answer to why you lose your wife to cancer or your child to some accident or whatever happens.

Mr. Ramsay: So you have no answer to that.

Mr. MacLatchie: No, I have no answer to that, and you know there's no answer to that.

Mr. Ramsay: Is that not a central question?

Mr. MacLatchie: It's a valid question, but there's no answer to it.

Mr. Ramsay: Of course their answer to it is to leave that person imprisoned and not living free in society.

Mr. MacLatchie: There's no question that this is a legitimate feeling.

Mr. Ramsay: Should it be considered?

Mr. MacLatchie: I think it should be considered, but I don't think anything can be done about it. The fact of the matter is -

Mr. Ramsay: Should we not consider their feelings?

Mr. MacLatchie: I think we should. I think we should as a society be as compassionate, assisting and supportive as we can in every other way. But I don't think the imposition of suffering and increasing suffering for others is a way of expressing compassion for the bleeding we do as individuals. It just doesn't happen that way.

A voice: Speak to the folks in the room.

Mr. MacLatchie: I have no desire to. The fact of the matter is that I have a question before me and I'm answering it the best I can.

Mr. Ramsay: You say there's no answer to it, but that's what the committee has to wrestle with.

Mr. MacLatchie: Fair enough.

Mr. Ramsay: It's easy to come here and represent the viewpoint of the killer, this human being. There's no question he's a human being. It's easy for you to represent those people, but there must be a balance in all of this. Whose consideration and whose needs should take the foremost consideration of the legislators of this country? Should it be the victims or should it be the perpetrator of the anguish and the pain and the hurt?

Mr. MacLatchie: The legislators' responsibility is to put in place the best, fairest, most just system possible. We're saying that you have on the books the best, fairest, most just system we can dream of. To move in the direction you're moving in, (a) you're not solving the problem you're trying to address, because it won't be solved that way, and (b) you're probably working down the road to a society full of repression and even more escalating incarceration and punishment.

Mr. Ramsay: When you say full of repression you're referring to the killer. You're not referring to the victim.

Mr. MacLatchie: No, I'm referring to the additional offenders you'll find to slip under this whole ring as you proceed along what I described earlier as the slippery slope of increasing punishments.

Mr. Ramsay: What do you think is a fair and just penalty for someone who, in a planned and deliberate way, takes an innocent life? What do you think is a fair and just penalty?

Mr. MacLatchie: We have a criminal code, we have a corrections policy, and we have a just way of going about it. What we have, in our opinion, is what should be.

Mr. Ramsay: So 15 years is sufficient for you?

Mr. MacLatchie: It's not 15 years. You're saying that at 15 years an individual has the right to apply for release through a process that we as a community and a society believe is just and fair.

Mr. Ramsay: But the intent is for release.

Mr. MacLatchie: The intent is justice. The intent is humanity. The intent is to make an opportunity to review a set of circumstances.

Mr. Ramsay: But the practical result of the intent is release.

Mr. MacLatchie: The practical result is working out just fine. You have a system in place that works.

Mr. Ramsay: In your opinion.

The Chair: Thank you, Mr. Ramsay. Mr. Nunziata.

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Mr. Nunziata: There are people here who have lost loved ones through murder, and they thought the perpetrator of the crime, when convicted, would serve a minimum of 25 years. Can you imagine for a moment how they would feel if, after thinking there was some closure to their grief for at least 25 years, they once again after 15 years had to resurrect the awful feelings they had when their loved ones were murdered?

You said it serves no useful purpose to keep someone incarcerated. I'm telling you that the folks in the room tonight feel that at least it gives them some comfort to know they don't have to deal with the situation for at least 25 years. Some would prefer that the individuals remain incarcerated for the rest of their lives. Do you see their point of view at all?

Mr. MacLatchie: Of course I see their point of view. I have no trouble with that.

Mr. Nunziata: In your view, what is an appropriate minimum period of incarceration for first-degree murder?

Mr. MacLatchie: My point of view is that you have a criminal code in place that is serving Canadians appropriately at the moment.

Mr. Nunziata: You're not answering the question. The Criminal Code says that if you're convicted of first-degree murder you're sentenced to life imprisonment.

Mr. MacLatchie: No, you're sentenced to life, 25 years -

Mr. Nunziata: You're sentenced to life imprisonment without eligibility for parole for25 years, right?

Mr. MacLatchie: You're serving a life sentence, yes.

Mr. Nunziata: Do you support that provision?

Mr. MacLatchie: Sure.

Mr. Nunziata: But do you support that provision only if section 745 is part of the mix?

Mr. MacLatchie: We didn't create the law, Mr. Nunziata. We live with it and it's part of our culture.

Mr. Nunziata: You say that the section has worked well, that there is no evidence of failure. What criteria are you using? One would suggest that a 78% or 80% success rate is an indication of the failure of the section. What criteria are you using to conclude that the section is working very well, that it's good law, that there's no evidence of failure?

Mr. MacLatchie: That's all. That's the fact. Nobody has been released who ought not to be released, in our view, and the record seems to reflect that. We're saying that this law would screen out somebody like Clifford Olson, notorious cases like that. It works.

Mr. Nunziata: How does it screen such people out? They have the right to -

Mr. MacLatchie: They have the right to apply and they would not get a release.

Mr. Nunziata: How do you know that?

Mr. MacLatchie: I trust the jury system, Mr. Nunziata.

Mr. Nunziata: I trust the system as well, or I did trust the system until in the last year alone 15 people were murdered by inmates who were released prematurely, either by statutory release or by parole. Is that the system you have so much confidence in?

Mr. MacLatchie: Yes. Those people were released by a tribunal making a judgment on behalf of the people of Canada with the best information possible. That's a criminal justice system to which we can subscribe.

Mr. Nunziata: You accept these failures, that 15 people lost their lives because of the failure of the system? You think these statistics are quite acceptable given the system we have?

Mr. MacLatchie: We have a process in place. As I said, there are releases that use the best information with a tribunal given our blessing to make judgments on our behalf.

Mr. Nunziata: With respect to the jury system, you say the jury is there to make judgments. In your view, is the present system under section 745 adversarial in nature?

Mr. MacLatchie: I don't understand the question.

Mr. Nunziata: Is it the role of the crown attorney to challenge the application, the evidence coming in? Or is it the role of the crown attorney simply to ensure that there is procedural fairness, that the evidence is brought in fairly?

Mr. MacLatchie: I'm not competent to answer that, Mr. Nunziata.

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Mr. Nunziata: Don't you think it is critical before you conclude you have so much confidence in the jury? You're assuming the jury has all the information and it has honest and truthful information. I'd be happy to share with you a brief by a senior crown counsel in Alberta that points out the system is slanted. One of the reasons for the huge success rate is because all the evidence doesn't go before the jury. It is not adversarial in nature and the evidence is slanted in favour of the so-called applicant.

Mr. MacLatchie: I'm not privy to that information, so I can't comment.

Mr. Nunziata: All right.

The Chair: Thank you, Mr. Nunziata. Ms Torsney.

Ms Torsney: Thank you. I have a couple of questions and then I think Mr. DeVillers will be using up the rest of the time.

I apologize that I wasn't here when you started. But I wanted to be clear about what the role of the John Howard Society is. Are you an advocacy group for prisoners? Is this your sole function?

Mr. MacLatchie: No. Historically we were working with inmates and finding ways to get inmates to be released from prison so they could serve as citizens in a community. Over the years of our experience, however, it turns out we make some observations about the justice system. So on occasion, for the sake of society, we have come forward to advocate measures we believe are wise.

Ms Torsney: In fact don't you have a pretty active crime prevention unit in Wellington County?

Mr. MacLatchie: Yes. We're extremely concerned about all those things and all of the justice system.

Ms Torsney: So obviously you're concerned about victims and making sure there are fewer people who are victims.

Mr. MacLatchie: Of course we are. Victims as a collectivity are never far from our minds. In fact we do our work with inmates because we feel the community is a victim too. So the extent to which we can work with inmates so they do not reoffend is saving us all.

Ms Torsney: Okay. I think the rest of the time is for Mr. DeVillers.

The Chair: Mr. DeVillers.

Mr. DeVillers: Thank you, Madam Chair.

Mr. MacLatchie, at the beginning of your presentation you challenged the statements made by the Minister of Justice on the press release about the bill. You said that in your opinion public safety wasn't an issue. Could you expand a little bit on this comment?

Mr. MacLatchie: Simply, here was a piece of legislation saying some people, given the circumstance of first-degree murder, can have the opportunity to apply for review. I think if it had turned out those reviews had been done and they had gone out and reoffended in this way then we would have said yes, I guess this doesn't work. If we saw evidence that there was some kind of bending of the process and that it wasn't working in this way, we would be prepared to admit it. The record doesn't seem to show society is in any way harmed by the releases that have been made.

There are two levels of screening here. One is by citizens in the community where the offence took place. The other is by the parole board. As I said earlier, the parole board is a body charged with making decisions about releasing inmates on conditional release on our behalf with as much information as could be garnered about that inmate in the prison situation. This is the basis of our view.

Mr. DeVillers: So what you're saying is you feel that section 745 of the present law is not a threat to public safety. Is this the point?

Mr. MacLatchie: Absolutely.

Mr. DeVillers: I'm sorry, I didn't quite understand it that way.

Mr. MacLatchie: That's all right.

Mr. DeVillers: Mr. Nunziata and Mr. Ramsay posed the same comment or question to previous witnesses regarding the failures of the probation system. Does the John Howard Society have a position on the parole system in general?

Mr. MacLatchie: Yes. In general, we believe it works. In general, we have been party to assisting a parole board in getting the best information before it and indeed working with parolees once they're released. We do a considerable amount of this.

I think the previous speaker raised this question too. You're dealing with human judgment. You're taking information and you're making the best possible judgment you can with regard to considering the release of an individual. By and large, we believe that system works. You cannot prejudge what somebody's about to do in the future. The best information on risk assessment and so on is being brought to bear at the moment. It's an imperfect science, but it's the best we have.

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Mr. DeVillers: What role do you feel the concept of retribution plays in sentencing and in the carrying out of sentences, etc.?

Mr. MacLatchie: Not very much. I think the objects are to be safe in our community and if we're making releases to make the best judgments we can on the best information. Retribution is something entirely different.

Mr. DeVillers: Okay.

In his questions to the minister earlier this evening on the question of the change that would make the jurors' decision unanimous in order for the applicant to be successful, I think Mr. Langlois indicated that in his opinion - if I heard him correctly - that was tantamount to the repeal of section 745. He felt it was an onerous change and would be an impediment to successful applications in the future. What's your comment?

Mr. MacLatchie: We agree with that. I think again here we are... I think our position is really that the jury, in acting unanimously and close to the facts, as in the first trial, is better suited to that.

Here we're dealing with an event that happened at least fifteen years ago. Societal values change. The inmate can change. The system can change. Any number of things can occur, and you need that kind of latitude to make those kinds of judgments.

Mr. DeVillers: Thank you.

Those are all the questions I had, Madam Chair.

The Chair: Mr. Langlois.

[Translation]

Mr. Langlois: I only have a few comments. Mr. Ramsay asked a moment ago what the sentence should be in murder cases. Fundamentally, when the person dearest to us is taken away, we tend to want revenge.

The dearest person in my life is my 17-year-old daughter. She has invited me to McDonald's for Father's Day next Saturday, thinking that she will be paying. She also invited me to the movies. If I had to learn tomorrow that she had been raped or murdered, I would probably find it very difficult to tolerate the situation because, as a citizen, and probably as someone who has religious beliefs as well, I have ruled out the death penalty. In my view, this is something that a society cannot impose.

When we have isolated an individual and taken the necessary protective measures so that that person can no longer harm anyone, we cannot then murder him on a legal pretext. I have ruled that out. I would have great difficulty finding inner peace. I believe that inner peace comes with pardoning someone. We are not required to pardon anyone. We can hold it back until the end of our lives.

It may take years, even an entire lifetime, for people directly affected by a crime that is committed to achieve inner peace. They may never be able to achieve it. This is a matter of our human fabric, of the most fundamental values that affect us and that we have been raised by and that we often pray for. These are extremely important values and you have touched on them.

The way you view this whole question is interesting, not solely from a deterrence point of view or from a rehabilitation point of view. We must weigh the pros and cons of this entire issue and also rely on the system. If misfortune struck me, I would say that the system is there, that it is more neutral and that it can take more distance from the situation I am going through than I can. But I understand that not enough consideration is currently being given to the situation of victims.

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I am completely in favour of fuller participation by victims, those who essentially suffered when the crime was committed, when the time comes to implement section 745. If this section is to stand, I believe we should afford victims the opportunity to be heard. That is the kind of comment I wanted to make. The debate is an extremely enriching one. Thank you.

[English]

The Chair: Do you wish to comment?

Mr. MacLatchie: No.

The Chair: Mr. Gallaway, do you?

Mr. Gallaway: No.

The Chair: Mr. Ramsay.

Mr. Ramsay: I just want to sum up.

You see, I think a penal system that makes decisions that result either directly or indirectly in fifteen people a year being murdered has failed. And it is amazing to me, and I say this with respect, that you feel otherwise.

Mr. MacLatchie: I respect your amazement. I think you might want to take a look at the medical profession and death due to cancer or accidents or the slaughter - or murder - on our highways and a number of other things.

Yes, I think there are consequences to having a society that attempts to bind itself in such a way that it operates in the best possible way for most of its citizens. There are many other countries that I would not want to live in, Mr. Ramsay, and I think that bespeaks the other kinds of justice systems. That probably explains my position.

Mr. Ramsay: Do you not make a distinction between a death by cancer or accident and a death that is first-degree murder?

Mr. MacLatchie: No, I'm just talking about your being astounded by my accepting the justice system in Canada as it is.

Mr. Ramsay: No. I'm amazed that you accept fifteen planned and deliberate first-degree murders and that you accept the system that has produced those murders as successful. I'm amazed that you're unconcerned about it.

Mr. MacLatchie: I take exception to the fact that you call me unconcerned. Of course I'm concerned about it. Of course we worked...that's what our job is; our job is to work in the criminal justice system along with -

Mr. Ramsay: Are you satisfied with the system?

Mr. MacLatchie: I'm saying this kind of act is not going to make a change in that.

Mr. Ramsay: Do you think we should be seeking a change in fifteen murders per year by people who have been released from custody?

Mr. MacLatchie: Is changing this act going to do that, Mr. Ramsay?

Mr. Ramsay: Should we be seeking that change?

Mr. MacLatchie: I don't have an answer from you.

I don't know. I can't answer that.

Mr. Ramsay: No, this act will not change that. This bill will not change -

Mr. MacLatchie: Then let's address this act. That's what I'm here to talk about. I'm not here to talk about the rest of the system.

Mr. Ramsay: But, you see, this addresses the system, and we're addressing the system. We cannot deal with this act in isolation from the rest of the criminal justice system, the penal system and the consequences of that system.

I have no further questions.

The Chair: Are there any questions on the government's side? No?

Mr. Nunziata.

Mr. Nunziata: Just so I understand the position of the John Howard Society, you are asking members of Parliament not to support Bill C-45, to vote against it. Is that correct?

Mr. MacLatchie: That's correct.

Mr. Nunziata: There's nothing in the bill that your organization can support.

Mr. MacLatchie: That's correct.

Mr. Nunziata: I have a final question. Do you think there's any role whatsoever in the criminal justice system for punishment as a factor at the time of sentencing?

Mr. MacLatchie: There might be, but it's not the job of the John Howard Society of Canada to engage in that.

Mr. Nunziata: If you could just answer the question, with first-degree murder is there any component of the sentence that has to address or that should address the issue of punishment for committing the most heinous and insidious crime in the Criminal Code?

Mr. MacLatchie: I believe it is addressed by a 25-year sentence or a life sentence of 25 years in prison.

Mr. Nunziata: So you support the notion that punishment is one of the factors that ought to be considered.

Mr. MacLatchie: We accept that as part of the Criminal Code of Canada and the way justice is done in this country.

Mr. Nunziata: And is that the position of the John Howard Society?

Mr. MacLatchie: That's correct.

Mr. Nunziata: Thank you.

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The Chair: Thank you very much, Mr. MacLatchie.

Mr. MacLatchie: Thank you very much.

The Chair: We'll rise for two minutes to stretch our legs. Our next witness will be the Canadian Association of Chiefs of Police.

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The Chair: We can take our seats and resume.

Our next witness, the Canadian Association of Chiefs of Police, is represented by Chief Julian Fantino of the London Police Service, who is a member of the law amendments committee, and Fred Schultz, who is the executive director.

Welcome, gentlemen. We'll hear from you, and then you'll hear from us.

Mr. Fred Schultz (Executive Director, Canadian Association of Chiefs of Police): Thank you, Madame Chair.

We appreciate the opportunity to be here this evening, even though it is on quite short notice. We probably would have had more people involved if we had had more time.

As you mentioned, Chief Fantino is a member of our law amendments committee. He took himself away from the Ontario Association of Chiefs of Police annual conference, which is being held this week in Toronto, to come and make a presentation to you this evening on this bill.

Chief Fantino spent approximately 23 years with the Metro Toronto police before becoming chief in London and has had several years experience as a homicide investigator. I think he has a good basis to speak on this particular subject.

Chief Fantino.

Chief Julian Fantino (Law Amendments Committee, Canadian Association of Chiefs of Police): Madame Chair and members, thank you for the opportunity to appear before you.

More and more Canadians fear for their safety every day, and that's just not right. Safe streets and homes should be a basic right of every Canadian. Canada's 40% increase in violent crimes since 1984 has also been noted. The Conservative government has done almost nothing to combat this growing crime rate except half measures and lots of macho talk.

Guns and drugs, knives and other offensive weapons in schools, rampant violence - these things used to happen mostly in American cities, but more and more we have seen them in our towns and cities. We don't want to Americanize Canada. We don't want our communities to turn into the same violent and frightening places we see south of the border. Canadians want to halt that decline and they want to halt it now.

- Those were words spoken by the then leader of the Liberal Party, the now Prime Minister Chrétien, April 22, 1993.

Circumstances make the job of police chiefs one of the most challenging in the country. It makes the life of the Minister of Justice simple by comparison. When police chiefs speak, people pay attention.

- That was said by the Hon. Allan Rock at the Canadian Association of Chiefs of Police conference, August 24, 1995.

Madame Chair and members, on June 11, 1996, the Minister of Justice and Solicitor General of Canada announced a bill to reform section 745 of the Criminal Code. The position of the Canadian Association of Chiefs of Police is that although this is a small step in the right direction, it amounts to a band-aid solution when major surgery is required. This response to the concerns raised by vast numbers of Canadians, including victims' right groups, the police community, politicians and many everyday citizens, is not an adequate response.

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Let us not lose sight of the fact that we are dealing with murderers who have been sentenced following due process. In the case of those convicted of first-degree murder, the eligibility for parole should be, as prescribed by statute, not less than 25 years. In the case of second-degree murder, the period should be at least ten years or such greater period as the trial judge sees fit to impose at the time of sentencing, as permitted by the Criminal Code of this land.

The proposed amendments do not amount to abolition of section 745, which in the view of the Canadian Association of Chiefs of Police is the only reasonable course of action. This is merely tinkering. The Hon. Mr. Rock has stated that the section 745 process will now be only available to those who are most deserving. This amounts to nothing less than a head count. If a killer has taken only one victim, he may be considered deserving, while the individual in the next cell, who has killed twice, will not be.

Our position is that early parole should not be available for either of them. They have abrogated their right to special treatment and privileges by the act of taking a human life and should receive no special consideration beyond a statutory right to be considered for parole following the minimum prescribed at the time of sentencing.

The Canadian Association of Chiefs of Police believes that every life is precious and that it is morally unjustifiable to reward a killer simply on the basis that he has taken only one life. Moreover, it is an error to tie this legislation to the worst mass murders and serial killers. Our concern is that less high-profile but equally dangerous and evil individuals could reap the reward of early release.

A valid example of this last category would be the murderer who has killed a police officer or jail guard. Under the proposed legislative scheme, this person would not automatically be excluded from making a section 45 application. It is the position of the Canadian Association of Chiefs of Police that he clearly should not be a candidate to be considered for release prior to the full term of25 years.

What was the rational basis for section 745 in the first place? It amounted to an attempt to circumvent the original disposition of the charge, which was handed down by a judge who made a decision and gave judgment based on fresh viva voce evidence concerning the manner in which the murder was committed and its effects on the family of the victim and others. It demeaned the loss of life caused by the convicted killer. It was peculiar and illogical in that it gave special treatment to the most dangerous criminals convicted of the most serious offence in the Criminal Code.

The government is now sending out a better message, but it is garbled. This compromise appears to be an attempt to placate civil libertarians and the Canadian Bar Association, who most assuredly do not speak for the Canadian public. Section 745 is being watered down when it should be drowned.

While the CACP appreciates that our concerns and those of many average Canadians have obviously been heard by the Department of Justice, they are not being acted upon. We strongly oppose the continuation of section 745 in any form. This was an ill-conceived law and ought to be put to rest once and for all. The only resolution to this situation that will satisfy the goal of sanctifying public safety is to once again make life imprisonment mean life.

We are on record, Madam Chair and members, advocating the repeal of section 745, and that goes back a considerable length of time for police chiefs representing communities all over this country, with whom we are intimately plugged in.

We're prepared to answer your questions.

The Chair: Thanks, chief.

Mr. Langlois.

[Translation]

Mr. Langlois: At the end of your presentation, you said that being sentenced to life imprisonment should mean life imprisonment.

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Am I to conclude that you are opposed to any form of parole, even after a 25-year sentence has been served, and do you believe that a person convicted for first degree murder should be locked away for the rest of his life without recourse?

[English]

Chief Fantino: Life is life, regardless of when parole is given. What we're saying is that under no circumstances should anyone convicted of first-degree murder ever be considered for parole prior to 25 years of sentence being served.

I should tell you as well that I spent eight years in the homicide squad in Metropolitan Toronto, and I've had my feet to the fire. I've dealt with the victims and had intimate awareness, and have intimate awareness and appreciation, of the sanctity of life. So many killers have callous disregard for that very victim, who is often innocent and certainly in no position to defend themselves.

What I bring to this forum is the sense that even those of us intimately involved in this system, investigating homicide cases and dealing with victims and killers - and we knew capital punishment was being, if you will, put down - didn't realize what this fifteen-year situation really meant with section 745. Either we were asleep at the switch or we just didn't have full appreciation for what was happening.

So getting back to your earlier question, life is life, no matter what happens. Only those under special circumstances and for very specific reasons in the public interest should ever be considered for parole, but not prior to 25.

[Translation]

Mr. Langlois: Thank you. You spoke of the status of peace officers, more particularly police officers who are responsible for maintaining order in society. If section 745 were amended so that a murderer of a peace officer, a police officer or a prison guard could never be released, if his sentence were really a life sentence with no possibility of reprieve, do you believe that police officers' work would be safer? Would they be more respected or feared by the rest of society and, if so, what are your reasons for the statement or answer you are going to give me?

[English]

Chief Fantino: Your question is a very valid one. What we have to look at is this. Police officers are really an instrument of the criminal justice system. We are those people empowered, authorized and mandated to deal with the public safety and the public peace in our communities. Police officers and prison guards, by virtue of the task imposed upon them or given to them, are entitled to special consideration.

I believe sincerely, as do my colleagues, that although there is no special quality of life vis-à-vis a police officer, a child or whatever, we also have to look at the circumstances. The Criminal Code has done that to this point in time, although we can argue about its effectiveness.

The Criminal Code already makes allowances for certain types of killings, and it also takes into account circumstances that impact on the occurrence. In other words, you have various degrees of culpability and other mitigating circumstances that have an impact: who was killed, under what circumstances, the intent issue, etc.

So I don't see why we now need to debate the value of human life. What we need to debate and deal with is the fact that killers are getting away with murder, and there's really no compelling reason for them not to keep on doing what they're doing. And many of them are doing it, by the way, time and time again. There are those cases.

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I heard earlier that the issue of victims is often lost in the discussions. For instance, I can tell you that we have disproportionate numbers of police officers who are being killed in the line of duty, one just recently. I think police officers are entitled to the full protection of our society by virtue of the job they do in the protection of society. The same applies to prison guards and all those other people.

The Chair: Thank you.

Mr. Ramsay.

Mr. Ramsay: Thank you gentlemen, both of you, for coming and staying so late.

I have a couple of questions. First of all, was your organization consulted by the justice department on this bill?

Chief Fantino: We had some input. We made presentations, but our position has been consistent for the repeal of section 745 of the Criminal Code, unequivocally.

Mr. Ramsay: Did the justice department advise you of what they were considering in Bill C-45?

Chief Fantino: Not directly. We had some ideas that section 745 was going to be somehow revamped or altered, but specifically what in actual fact was to be done we did not know. We were not consulted.

Mr. Ramsay: Would you say you had any input into what is now Bill C-45?

Chief Fantino: Mr. Ramsay, the only input we had has been a consistent input, and that is for the repeal of section 745. We are not here to debate the merits of what is being proposed. We remain adamant that section 745 needs to be repealed.

I say that not from a police perspective. We're out in the community all the time; we work in the community, we work with victims. If we are to believe that Mr. Rock was sincere when he said that when police chiefs speak people pay attention... I'm here to represent my colleagues, certainly, but we're here to represent the communities we serve and protect. I'm here to speak on behalf of a greater constituency.

Mr. Ramsay: Moving to another topic, I spoke to a defence counsel about this bill and he pointed out to me the possibility of the enhanced difficulty in convicting a multiple murderer.

First of all, he said it's difficult to convict a multiple murderer now. He suggested that with the advent of this bill, that difficulty will increase because there is a vested interest in not admitting your guilt. If you have him cold on one murder but not on another, there is a distinct interest in him not confessing to any further murders because of Bill C-45 denying him what he will otherwise have if he's convicted only on one murder. What are your views on that?

Chief Fantino: My view is that I have faith in the criminal justice system. For 28 years I've been a very involved protagonist within the justice system, feet to the fire. I have a tremendous amount of faith that juries will do the honourable, right thing. I have a tremendous amount of faith that police officers will do the right thing in gathering the appropriate evidence and putting it forward and that in the end it will all wash.

However, we can't put conditions on outcomes, and we are doing exactly that. We're quantifying the value of human life, for instance, and all of those issues. We're turning the system of justice upside down in this country. What we're hearing from the lawmakers does not in any way reconcile with the reality on the streets of this country. The neighbourhoods and the communities and the trauma and the victimization do not reconcile with the slow pace of our criminal justice system in keeping up with what is happening on our streets, in our communities, in our homes, and in our neighbourhoods.

Getting back to your earlier question, any excuse is a cop-out. Let's get back to the basics. Life means life. The sanctity of life should be protected. There's nothing more precious anyone can lose. I've seen bodies stacked up by callous, inconsiderate, couldn't-care-less killers who are now applying to get out.

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We're just now going through a case that I did in Toronto, the murder of Constable Michael Sweet on exactly March 14, 1980 - the most heinous crime. An officer was shot during an armed robbery and was kept there bleeding. We couldn't rescue him because the killers would not allow us to, and eventually the officer died. Had we been able to rescue him 15 minutes sooner he would have been saved. One of these killers is now applying under section 745. There's outrage out there. There's no justice in this. The father of three young children was taken from them, a police officer doing his job.

Mr. Ramsay, these are all cop-outs. Let's get back to the basics. Let's send out a message that reconciles the trauma and the outrage in the community. I think it's high time the lawmakers responded to that as opposed to the defence counsel you speak about.

Mr. Ramsay: This may not be a fair question, but I'm going to ask it anyway. You just heard the previous witness who thought the justice system and section 745 were working well. How should we respond to that? How do you respond?

Chief Fantino: With the utmost respect, that does not reconcile with the reality of the world in which I live and work, have been and still am today, as are my colleagues, as are all these veterans. Do you realize that in 1994, 596 Canadian citizens, people like you and me, were killed in this country? When is there going to be enough of this? When are we prepared to say that one life taken by an act of murder is one life too many?

Mr. Ramsay: What do you say about the 15 murders committed last year by people on parole and early release? That's the information Mr. Gibbs submitted, and it only touches on murder. Apparently there were 15 others who attempted murder. There were 21 major assaults and 71 armed robberies.

These are people who were released by people with good intentions, feeling that these people had been rehabilitated and would not pose a threat to society. Yet there are 15 families going through the horror and the terror that accompany every first-degree murder, and 15 communities that have been affected. With the greatest respect to the former witness, he sees nothing wrong with that. How do you feel?

Chief Fantino: I feel that we can't quantify the value of human life, one life. The system needs to be held accountable, as do the lawmakers, as does everyone else who has a hand in the outcome of yet another life being taken. We can't ever be complacent about only one mistake. There are too many one mistakes out there, and when you add them all up they keep repeating themselves.

I heard the previous witness also mention that it's an inexact science. Well, if you were to put these items under close scrutiny you'd find that it's not a science at all. It's just people bleeding out for the wrong parties. Invariably a lot of these mistakes were long in the making. The people who killed Constable Sweet had been in the system longer than the officer had been a police officer, in and out, in and out, in and out.

We have to refocus on the priorities and look at the greater public good here, and stop all this taking a chance on people being rehabilitated and 15 is enough. I'm sorry, 15 years is not even enough for people to get over their grief, and right away they're at it again because these killers are coming up when people are still traumatized. They're being traumatized again.

The Chair: Thank you. Mr. Nunziata.

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Mr. Nunziata: Chief Fantino, you give very compelling evidence about why section 745 should be repealed.

Practically speaking, what impact will the release of Constable Sweet's killer have on the Metropolitan Toronto police force? I remember that murder as if it happened yesterday. I still remember the headlines in The Toronto Star. What impact will that have on the police force of Metropolitan Toronto and generally in the police community, knowing that the killer of that police officer could be walking as a free man within a matter of weeks?

Chief Fantino: I'll start by expressing my feelings in that I was one of the officers who was involved in that case from the start. I was present at the officer's autopsy and I was present throughout the trial. I can tell you that hurt has never gone away, not just mine, but the police community's generally. It's such a feeling of hopelessness, such a terrible waste, and that trauma will again be relived.

I guess what I have to tell you as well, Madam Chair and members, is that I don't want to overdramatize this issue. I've had dealings with many civilian victims, and they're worth every bit as much as a police officer victim. A victim is a victim is a victim.

I can tell you that from the law enforcement point of view, there's this feeling of hopelessness out there now, and some say it's out of control. If you read the newspapers and if you walk the streets of our major cities and if you look at the body count that has now been accumulated through wanton and reckless and useless and needless acts of violence everywhere, in many respects we feel betrayed. We're out there doing our best, but we wonder who our back-up is.

Mr. Nunziata: Who do you feel betrayed by?

Chief Fantino: A system of justice that's not keeping pace with what's happening on our streets, in our neighbourhoods, and in our homes in terms of the victimization, the trauma. The whole focus is on the perpetrators, the victimizers. Who cares about the victims? Who cares about police officers having to go through this kind of nonsense? The system is not working as it's intended to and it's not reconciling with the wishes and the expectations and the needs of our communities and our citizens in this country.

I know for a fact that millions of Canadians have lobbied for the repeal of section 745 of the Criminal Code. This has been going on for years now and here we are, tinkering with it.

Mr. Nunziata: I asked the minister earlier this evening whose views this bill reflects. The evidence you're giving is the evidence I hear day in, day out, right across the country, and that is that Canadians are losing respect for the criminal justice system.

With this tinkering that's being introduced under Bill C-45, in your view, whose view is the minister reflecting?

Chief Fantino: With all respect to the minister, I know he has a very difficult task and I know this is an unhappy situation that has to be reconciled, but it's not reflecting the reality. Quantifying victims and giving the killer of one victim a discount, if you will, these things are not sitting very well. I don't know; he's probably reflecting the views of the previous witness and the Canadian Bar Association and others who are as distanced from the reality as you could ever imagine.

Mr. Nunziata: I have a final question. You indicated that at the time of the trial there were two people convicted in the murder of Constable Sweet.

Chief Fantino: Yes.

Mr. Nunziata: At that time and at the time you investigated and were part of the prosecution of presumably a number of homicides in Metro Toronto, were you aware that section 745 existed in the Criminal Code? Were you satisfied, or did you think, as a police officer close to the scene and as a homicide investigator, that those convicted of first-degree murder would serve a minimum of25 years?

Chief Fantino: I was there when capital punishment was finally abolished. We worked through the various sections of the Criminal Code and all those adjustments that have been made. We thought 25 years was the minimum. We must have been asleep at the switch or we weren't listening or we weren't tuned in or something, but we had a sense of comfort at least; we felt that at the very minimum first-degree murderers would be in for 25 years. Then all of a sudden this crept up on us.

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Mr. Nunziata: When did you first become aware of section 745?

Chief Fantino: When it was first anticipated that a number of these folks would be coming up for these applications and hearings. In fact I have a bunch of them myself, and believe me, folks, I can't even believe that some of the people who are on the list as candidates for section 745 applications would ever be out. I just could not believe this, and I think I'm a pretty stable Canadian citizen.

It crept up on us. I take some of the blame because we ourselves should have been more informed, and that's why you're hearing this impassioned and I think very sincere approach to you folks to not do this again. We are better informed, and we are better positioned.

I'm not here to bring anecdotal information; I have case-specific items here. I can talk to you about a quadruple murder where people were beaten, shot, stabbed...they were bound and gagged over a robbery and killed systematically by people who are coming up for section 745 applications. When is there going to be enough of this nonsense?

Mr. Nunziata: Thank you.

The Chair: Mr. Kirkby.

Mr. Kirkby (Prince Albert - Churchill River): Thank you very much for appearing before the committee.

Certainly you've made your position very clear, that you would like complete repeal of section 745. Does that mean you would object to the passage of this bill, or if complete repeal isn't coming, should we put this through?

Chief Fantino: Madame Chair, members, I anticipated such a question. This is a question similar to whether you still beat your wife. It's a no-win answer. But I have an option for you. You already have a bill configured that we support and that's been flying around for some time now in Ottawa; that is Mr. Nunziata's bill. I believe it has been renumbered; it used to be Bill C-226 and it's now Bill C-234. We would ask this committee and government to go back to that. We don't have to have another bill going through the system. We already have a very good one there.

Mr. Kirkby: You haven't answered my question. My question is, do you object to the government's bill going through, or if complete repeal is not forthcoming would you support the government bill going through?

Chief Fantino: Our position is the repeal of section 745.

Mr. Kirkby: Okay, I'll move on to another question. I don't think you're prepared to answer that question.

You've indicated that life means life, but then you have said that a person should be eligible for parole after 25 years. Does that not detract from the statement that life means life? Why is it all right that somebody should be able to apply for parole after 25 years but not under certain circumstances after 15? What's the distinction there in your mind?

Chief Fantino: Ten years.

Mr. Kirkby: Okay, but what is the distinction?

Chief Fantino: The distinction is ten more years of peace, tranquillity, comfort and rehabilitation for victims; a much more meaningful response to the most heinous crime; and hopefully more opportunity for the person to be deserving and have earned the right to go forward and apply. Ten years is something that should be there, added to.

By the way, life is life. We've not moved from our position. Life is life whether people get paroled at 15 or 25 years. What we're saying is that no one should have any consideration whatsoever prior to 25 years, as was believed to be the case when we first had this item way back in the seventies.

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Mr. Kirkby: Does your position still apply if, for example, an individual has a person within the family who is very sick, suffering terribly, with incredible pain each day, that type of circumstance...? This person lives with that for quite a few years and finally makes the decision to take the life of that person who is suffering. It is conceivable that this person would be convicted of first-degree murder. Are you saying that in those circumstances the person should wait 25 years?

Chief Fantino: I'm not saying that at all, sir. I'm saying that the Criminal Code, the law of this land, already provides for mitigating circumstances, and it's not up to me to articulate those. You already have various degrees of culpability and various degrees of mitigating factors that are taken into account at the time of sentencing. So you have first-degree, second-degree and all of those issues - manslaughter, criminal negligence... I'm not the judge, sir.

Mr. Kirkby: First-degree murder is premeditated murder. Somebody makes the decision to take a life and takes a number of steps to carry out the taking of a life. Therefore, that person is guilty of first-degree murder. Are you suggesting that person should have no hope for 25 years?

Chief Fantino: I'm suggesting that for first-degree murder there should be 25 years before eligibility for parole. The intentional killing of a human being speaks to the conviction and all of those other factors would be taken into account. I'm not into mercy killing, sir.

Mr. Kirkby: I'm not trying to justify it, but I am pointing out circumstances that could happen. I don't agree with that either.

Mr. Schultz: That did happen in Saskatchewan.

A voice: In the Latimer case.

Mr. Schultz: What was the sentence in the Latimer case? That's the answer right there.

Chief Fantino: Those things are taken into account at the time of the trial. We have to believe that the defence counsel puts forward pretty articulate cases. We have to believe that the jurists in this country are competent people. We have to believe in the system, and if the system says first-degree murder and all the circumstances are there, it's fine for me, sir.

The Chair: Ms Torsney.

Ms Torsney: I think it's interesting that we've put the Latimer case on the table. I will just make one comment to you. First of all, there are two issues. One is that had the sentence been longer this section could have applied. Secondly, you mentioned earlier that we have to listen to the public, and I heard from many people who didn't agree that he should have been given a ten-year sentence in the first place. So perhaps there are different situations within the community.

I have a question for you. At the time section 745 was introduced, were you in favour of repealing capital punishment or was the position of the chiefs of police that it should remain in place?

Chief Fantino: I believe at the time we were in favour of capital punishment for very special, particular cases. I believe that would still be our position today.

Ms Torsney: Are you aware of a case of a killer of a police officer or of a prison guard being released under section 745?

Chief Fantino: We believe there are one or two. If you can give me a few moments I can probably even get the names for you.

Ms Torsney: Okay. That would be good.

Chief Fantino: I know that one is coming up very shortly.

Ms Torsney: No, I meant those who have been successful under section 745.

Chief Fantino: Oh, I'm sorry. Personally, I'm not aware of any.

Ms Torsney: So in your estimation, does that not speak to the fact that perhaps section 745 works? Because in fact people who kill police officers are viewed quite seriously by the juries in our community, and by the parole board should they have been successful in section 745, and in fact they would not get out.

Chief Fantino: I think that's very hypothetical. One thing I learned a good long time ago is that if anything is going to go wrong, it certainly will. I don't think you can leave things to chance. There has to be some semblance of order with regard to what happens in this country.

How can we assume that these things aren't going to happen any more than we can assume that people who have killed ought not to have been allowed out to begin with? These are all mistakes that have resulted in lives lost.

Ms Torsney: Just so that we're not operating on a false premise, the first person to have his parole eligibility reduced was someone who had murdered a police officer. He had it reduced from 25 years to 15 years. It was Mr. Chartrand.

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Mr. Nunziata: On the same point of order, Madam Chairman, there was another by the name of Nichols who killed a police officer. Here we have murder, kidnapping and robbery, and his sentence was reduced from 25 years to 20 years.

The Chair: Thank you. This is just so we're not operating under a false premise.

Ms Torsney: You mentioned some statistics about disproportionate rates of police officers being killed versus other members of the community. I don't have this statistic and I'd be interested in seeing it.

Also, I wanted to ask if you've talked to the prison guards. My understanding is at the time this provision was introduced there was great concern among prison guards and for prison guards about presenting prisoners with a very hopeless situation. I was a little young to remember all the details, but I think at the time there were a lot of riots and things happening in our correctional institutions. Is this factored into your decisions or not?

Chief Fantino: Not specifically, but let me just go back and explain about the disproportionate number of police officers. There has been André Lalonde, Odette Pinard, Joe MacDonald, Todd Baylis, Ezio Faraone and another officer this past weekend. How many is too many?

Ms Torsney: I wasn't questioning this. Please don't mistake my question. You gave a statistic. I was just asking if you have this statistic and if we could have a copy of it. I'm interested.

Chief Fantino: I said a disproportionate number of police officers are being killed in the line of duty. There have been two in Montreal just in the last couple of months and one in Nova Scotia last weekend.

Ms Torsney: So it is disproportionate because...?

Chief Fantino: It is disproportionate because it's happening all too frequently.

Ms Torsney: Frankly, if one police officer is killed, it's happening too frequently.

Chief Fantino: Absolutely. So there is no respect for the sanctity of one's job. You're put out there to protect the public. When you lose a police officer, I think it's a very damning situation for the whole of society. These are the people who are out there risking their lives in order to protect the public and they're being assassinated.

Anyway, regarding prison guards, I'm not speaking for them, but I believe their view is the same as ours. I believe they would advance the same arguments regarding their profession.

The Chair: Thank you, Ms Torsney.

Mr. Nunziata, you have five minutes.

Mr. Nunziata: Mr. Kirkby, the parliamentary secretary to the Minister of Justice, used an example or a reason why section 745 should be there. In effect, he described the Latimer case, arguing there should be something in place for those exceptional circumstances. Even though in this particular case it was planned and deliberate, the court only convicted him of second-degree murder.

He is also aware there exists in our criminal justice system the royal prerogative of mercy. It can be used in the Latimer case or any other such exceptional case.

I was quite intrigued by Mr. Kirkby's question to you because he seemed to want to justify the continued existence of section 745 based on an example that really isn't a true example. In any event, if it were an example of first-degree murder, where the person had to serve 25 years, the royal prerogative of mercy could be used. Are you familiar with this provision in the code?

Chief Fantino: I'm familiar with the system allowing for extenuating circumstances right up to minister involvement, cabinet involvement, and all of that. The difficulty with answering hypothetical situations is that you're playing God with people's lives, and I'm not about to do that.

I still want to go back to what I said earlier. After due process, and believing in the system of justice as I do, if the conviction is rendered for first-degree murder then it's up to someone else to make the determination as to what the ultimate outcome will be. But we can't have this carte blanche situation with first-degree murder convictions where 15 years is just readily available for one and all to step forward and avail themselves of it. The exceptional circumstances, right up to the lawmakers at the highest level, can be dealt with.

Mr. Nunziata: When section 745 was -

The Chair: Mr. Kirkby on a point of order, Mr. Nunziata.

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Mr. Kirkby: I just wanted to make it very clear that I was not referring to any specific case. It was a hypothetical circumstance I was referring to.

Mr. Nunziata: This is very similar to the case in Saskatchewan.

In any event, when the section was introduced in the code in 1976, it was referred to as the faint-hope clause. I have had the opportunity to review Hansard. I notice the former Solicitor General is here, Mr. Allmand, who was present during the debate. The reason it was called the faint-hope clause was because it was considered at the time to be only a very faint hope for those convicted of first-degree murder or those convicted of the most serious second-degree murders. The success rate is close to 80%. Of those who apply, 80% have their parole ineligibility reduced.

So would you not agree, Chief Fantino, that the very premise or basis of the inclusion of section 745 was faulty, because what they predicted back then isn't what the reality is today in terms of the applicability and the usage of that section?

Chief Fantino: I agree with you totally, because the outcome speaks to a contrary state of mind about why section 745 was in there to begin with. It was for a very few special cases, but it has turned out that it has opened the floodgates for all the first-degree murder cases you can imagine. In fact, 80% or so are being accommodated.

Mr. Nunziata: Chief Fantino, would you not agree that the inclusion of section 745 in our criminal justice system is a flash point or one of the reasons why the Canadian public is fast losing respect for the criminal justice system? A few moments ago you indicated that you still support and have confidence in the criminal justice system, yet you also indicated your very sincere frustration with the system with respect to this particular section. To what extent is section 745 an example of what's wrong with the system?

Chief Fantino: It's a very serious flaw in our system. The public at large have a belief that there is a lack of regard for the sanctity of life. We see that played out and reinforced in our communities every day, regrettably, with the violence, killings, shootings and everything else that has become the reality. People have legitimately perceived, if you will, a fear of what's happening in our country.

Take the escalation of crime. I don't want to get into crime statistics, but I can tell you sincerely that violent crime has escalated in this country in communities everywhere. The public feels - I'll say this with all due respect - betrayed when they see what's happening in terms of these people getting out when they are getting out, the victimization that goes on and the accommodations given to killers with little regard about victims very often. The reason I'm a firm believer is that were I not a believer and a supporter of the system I wouldn't be here this evening.

Mr. Nunziata: When you used the word ``betrayed'' -

The Chair: Thank you, Mr. Nunziata. Mr. Allmand.

Mr. Allmand (Notre-Dame-de-Grâce): Thank you, Madam Chair.

I must say to Mr. Nunziata that I never heard any government member use the description ``faint-hope clause''. I introduced the bill. I never used it. I never heard any of the people... If you saw it in the debate, it was probably because it was written in the newspapers and somebody picked it up. But none of us who described the bill ever used it.

I was absolutely flabbergasted when I came in the room and you said you didn't know about section 745, or the Canadian Police Association didn't know about it, until several years after. Are you telling me that the Canadian Association of Chiefs of Police, one of the most prominent associations in the land, did not read the bill in 1976?

I say that because as the minister, I consulted. We had consultations and we had committee hearings that were much more extensive than these committee hearings. Yet you're telling me, despite the fact that the chiefs appeared and were consulted, they still didn't know section 745 was in the bill?

Chief Fantino: Mr. Allmand, I guess what I'm telling you is that we must have been asleep at the switch, because we didn't have -

Mr. Allmand: You're really seriously telling me that you did not know it was in the bill?

Chief Fantino: May I finish?

Mr. Allmand: Yes, because it's amazing. Go ahead, please.

Chief Fantino: There's no need to berate the Canadian Association of Chiefs of Police,Mr. Allmand. If there's outrage, it's because we feel betrayed. I want you to know that.

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Moreover, sir, I was in a homicide squad at this very time, and I said to you earlier that we must have been asleep at the switch, because we did not appreciate the outcome or the consequences of section 745.

So blame who you want. I'll take the blame for it, sir. But the reality is that this is a piece of legislation that's out of touch with the reality of what's happening on our streets, in our communities, in our neighbourhoods and in this country.

Mr. Allmand: I'm going to check the record from 1976, because I find it hard to believe that the chiefs... You may have opposed it, but to say you weren't aware of it is another thing.

With respect to the public losing faith -

Mr. Nunziata: On a point of order, be fair about what happened back then.

Mr. Allmand: Oh, come on. I'll check the record and if I'm -

The Chair: Mr. Nunziata.

Mr. Nunziata: I think you should be fair to the witness. The witness was probably just a young constable at the time. He wasn't representing the Canadian Association of Chiefs of Police.

Mr. Allmand: I realize he wasn't the president.

Mr. Nunziata: He wasn't representing the Canadian Association of Chiefs of Police.

The Chair: Order.

Mr. Allmand: You asked him the question. He said the association was not aware.

Talking about the public losing faith, are you aware of the fact that last year we had the lowest murder rate in the last 25 years and that the murder rate has declined for three successive years? If the public is losing faith, how do you explain that when we've had the lowest murder rate in 25 years?

I would like you to tell me: when did we have the highest number of policemen killed in one year?

Chief Fantino: Mr. Allmand, how many lives killed is acceptable to you?

Mr. Allmand: None. I don't accept any being killed. But I want to tell you that the highest number of policemen killed in one year was in 1962, when eleven were killed. In that year, two people were hanged in the Don Jail for killing policemen.

I only raise this to point out to you that the fact that we've had some of the lowest rates of policemen killed in recent years has nothing to do with section 745 or the application or non-application of capital punishment. When we had capital punishment, you had the highest number of policemen killed in one year. It was eleven too many. As somebody here tonight said, one is too many.

But there's a suggestion that the public is losing faith in the criminal justice system. This is after we've had the lowest murder rate in 25 years, with a decline in three successive years. Also, when we had high rates, especially the highest rate of killing policemen, we had two people hanged in Don Jail for killing policemen.

Chief Fantino: If I my respond, I would like to extend publicly an invitation to Mr. Allmand to accompany me and my colleagues as we walk through our neighbourhoods and meet with the people who have their feet to the fire, are bleeding and suffering and are the outraged parties in this debate.

Mr. Allmand, let's go to the communities and talk to the people. Never mind the statistics, because I have a ton of them here as well.

Mr. Allmand: What are yours? I'm asking you. Have you got statistics that will...? I asked you: when was it that the highest number of policemen were killed in one year?

Chief Fantino: I'm not here to represent only victim police officers, Mr. Allmand; I'm here to speak to the victims who are not here who have an equal amount of right to life, safety and protection.

Let me just tell you, sir, that for Canada as a whole, the crime rate in 1994 was 8% higher than it was in 1984, and the rate of violent crime was 49% higher.

Mr. Allmand: All I know is that the murder rate has declined for three successive years, and we have the lowest murder rate in 25 years.

By the way, I'm all for public safety too, but I believe that we should do things that are going to be effective. To suggest that repealing section 745 is going to do something to reduce the rate of murder of policemen or the general public is, in my view, misleading and false. It won't do anything. When we had capital punishment, you unfortunately had eleven policemen killed in one year.

The Chair: Do you want to respond to that?

A voice: He's skewing the evidence.

Mr. Allmand: It's no more misleading than some of the things I heard here tonight, and I was only here for a short time.

The Chair: Gentlemen, do you mind if we let the witness respond? I've been in the reverse position with you when you were chair. Give the witness a chance.

Chief Fantino: I don't want to get into any rhetoric. I simply want to again go back to our presentation. Our presentation focused in one area: the killing of police officers. But you will recall that I spoke about the general situation as it relates to the killing of a life as also important here regardless of who that life happens to be.

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We're getting all wound up here over what may or may not apply to police officers. There are other people who are to be considered equally here. I wouldn't want this debate, if you will, to be focused on how many police officers have been killed in one year versus another year.

I just want it to be on the record finally that one life lost, regardless of who it is, through a murderous act is one life too many. End of story.

The Chair: Thank you, Chief.

The meeting is adjourned.

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