I call the meeting to order. This is meeting number 38 of the Standing Committee on Justice and Human Rights. Today is Monday, October 19, 2009. I'll just note that today's meeting is being televised.
You have before you your agenda for today. At the end of today's meeting we'll leave approximately 20 minutes to deal with some committee business and to continue debate on Monsieur Ménard's motion on the study on the Cinar case. I can also advise the committee that your subcommittee will be meeting tomorrow at noon to plan our schedule going forward.
Once again, I'll remind all of us to turn off BlackBerrys or put them on vibrate, and please make sure you take any phone calls outside of this room. Thank you for your courtesy.
Now back to our agenda. By order of reference, we will be considering , an act to amend the Criminal Code. This is a bill that deals with serious time for the most serious crime.
To help us with our review of this bill we have with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Welcome back, Minister.
Thank you very much, Mr. Chairman.
I'm pleased to meet with you once again to discuss justice legislation. This time I'm here to discuss Bill , an act to amend the Criminal Code, the Serious Time for the Most Serious Crime Act, which proposes to make significant changes to the faint hope regime.
As you are aware, the Criminal Code currently provides that offences of high treason and first and second degree murder carry mandatory terms of life imprisonment accompanied by mandatory periods of parole ineligibility. For high treason and first degree murder, an offender must spend a minimum of 25 years in prison before being eligible to apply for parole. For second degree murder, an offender must serve a minimum of 10 years. However, a judge may increase this to a maximum of 25 years, depending on a variety of factors, including the circumstances of the crime.
Despite the appropriately severe nature of these parole ineligibility periods, the faint hope regime--section 745.6 and related provisions in the Criminal Code--allows offenders sentenced to life imprisonment for murder or high treason to apply to be eligible for early parole after serving only 15 years. Our government promised to change this by restricting the availability of faint hope for already incarcerated offenders and by eliminating it completely in the future.
The amendments to the Criminal Code I'm bringing forward will accomplish these goals. First, they will bar everyone who commits murder or high treason in the future from applying for faint hope. All those who commit these offences after these proposed amendments come into force will no longer be able to apply for a parole eligibility date earlier than that mandated by the Criminal Code and imposed by the judge at the time of sentencing. In effect, Mr. Chairman, the faint hope regime will be repealed for all murderers in the future. This will complete a process begun in 1997, when the faint hope regime was effectively repealed for all multiple murderers who committed at least one murder after that date.
The rationale for Bill in this regard is very straightforward. Allowing murderers a chance, even a faint one, to get early parole is not truth in sentencing. Truth in sentencing means that those who commit serious crimes ought to do serious time. That is what the proposals in Bill C-36 aim to do. They restore truth in sentencing and keep dangerous criminals in prison for longer periods of time.
Clearly, the faint hope regime does not, on its face, automatically entitle an applicant to parole. In fact, however, the vast majority of those who are successful on a faint hope application are ultimately granted parole by the National Parole Board. What this means is that killers who were given appropriately lengthy sentence terms are getting out and walking the streets, albeit under conditions of parole, earlier than otherwise would be the case. These amendments are designed to respond to the concern of Canadians who are often dismayed to discover that, thanks to faint hope, the custodial sentences imposed on murderers are not always the ones served.
As for those already incarcerated for murder who are now eligible to apply under the faint hope clause or will become eligible to apply for faint hope in the coming years, their right to do so will remain.
However, the second thing these amendments will do is tighten up the faint hope application procedure to screen out the most unworthy of these applications and place restrictions on when and how many times these offenders may apply for faint hope. This new procedure will apply to those who commit their offences before the coming-into-force date. Those already serving life sentences in prison, those who have been convicted but not yet sentenced, and those charged with murder or high treason prior to the coming-into-force date who are later convicted will be subject to this new procedure.
In proposing these Criminal Code amendments both to bar future murderers from applying and to tighten up the application procedure for those already in the system, Mr. Chairman, we are mindful of the suffering endured by the families and loved ones of murder victims. Through these amendments, we propose to spare them the pain of attending repeated faint hope hearings and having to relive their terrible losses. As I have said on a number of occasions, this government remains committed to standing up for the victims of crime.
Many of you already know that the faint hope application has been amended a number of times since its inception in 1976 in response to the concerns of victims' families and the citizens of Canada.
At present, the procedure has three steps. First, the applicant must convince a judge in the province where the conviction occurred that there is a reasonable prospect that the application will proceed. This threshold test has been described by both the Manitoba Court of Queen's Bench and the Ontario Superior Court as being relatively low.
We will make this test tougher. A faint-hope applicant will have to prove that they have a substantial likelihood that their application will succeed. They will need to have that substantial likelihood that their application will succeed. This means that the evidence the offender will bring forward to a judge must be much more convincing. This will prevent less worthy applications from going forward.
We are also proposing a longer minimum period of time before unsuccessful applicants can reapply to a judge. Right now, the minimum period an offender has to wait to reapply to a judge is two years. Under this proposal, they will now have to wait a minimum of five years.
If these proposed procedural changes become law, a convicted murderer with a 25-year parole ineligibility period who applies at the earliest possible opportunity will only be able to make two faint-hope applications, at the 15- and the 20-year mark. This contrasts with the present system, where there are five applications at 15, 17, 19, 21, and 23 years. This change from two to five years will create more certainty for the families of victims about when a faint-hope hearing will occur. By limiting the number of applications that can be made, we will reduce the trauma that these hearings often inflict on them.
If an applicant succeeds at the first stage, he must then convince a 12-member jury to agree unanimously to reduce his or her parole eligibility date. If the jury says no, the offender may, under the present law, reapply in as little as two years. Again, we are going to change this to five years, and for the same reasons that I've just outlined.
If an applicant is successful at the second stage, he or she may go on to apply for parole directly to the National Parole Board. No changes are proposed for this final stage of the process.
Under the current law, those convicted of murder or high treason may apply for faint hope at any time after serving 15 years. We also propose to change this by putting a three-month limit on faint-hope applications.
This will require applicants to apply within 90 days of becoming eligible. If this application window is missed, the offender will have to wait five years to apply and will once again have 90 days within which to file a subsequent application. This will ensure that applications are made at the first and each subsequently available opportunity. No longer will victims' families be forced to live in constant dread, uncertain as to whether a particular killer will revive their suffering by seeking early parole at his or her whim.
Let me add that I understand the concern of ordinary Canadians that the faint-hope regime allows for lenient treatment of murderers. In this regard, I believe that most Canadians support these measures, which are aimed at protecting society by keeping violent or dangerous offenders in custody for longer periods. This bill will allow us to meet the concerns of Canadians that murderers do the time they have been given and stay longer in prison than they do now. That is why I urge all members of this committee to support this bill.
Thank you, Mr. Chair.
Thank you, Mr. Chairman.
Thank you, Minister, for coming to the committee.
Colleagues will know, and the minister knows, that we supported Bill at second reading. We continue to believe that this is an appropriate measure to take. It was a previous government, as the minister noted, that restricted it 12 years ago, and this is a further restriction of the faint hope provision.
There has been, I think, a lot of confusion around this. “Faint hope” means faint hope in the sense that, as the minister alluded to earlier, people convicted of those very serious offences shouldn't automatically assume that the rigorous provisions by which they could apply to a court for the ability to then apply to the National Parole Board would automatically be accepted.
I'm wondering if the minister or his officials have any statistics. In terms of offenders who have taken advantage of the faint hope provision and made application in the past, what percentage of those applications in recent years, for example, would actually end up being granted parole?
Thank you, Mr. Minister.
When I first heard about this regime that you want to amend, I, too, was well aware that such a sentence is imposed when the most serious crime has been committed, that is, when someone intentionally kills another person. When the decision was made to eliminate the death penalty for this crime, it was necessary to set out very serious consequences.
I can appreciate some of your arguments regarding the suffering of victims, or rather the suffering of victims' families, since we are talking about homicide victims. I think it is excessive to require them to come and testify every two years.
We can agree with you on one aspect of this bill and call into question certain others. With all due respect, we can have different opinions stemming from our own experiences.
I listened to your presentation about crime. Do you really believe that the faint hope regime should never have been created?
Thank you, Minister and your officials, for attending today.
Mr. Comartin has set me off on another little track, but I'll begin at the first and hopefully we'll have time to get caught up.
When somebody mentions to me that because they took another human being's life, and the fact that society wants to keep them in jail for 25 years.... And it should be 25 years--in other words, truth in sentencing. When they call that draconian, I simply wonder what we would call the murder of the person who has no life left to serve, either on the face of this good earth or anywhere else. I think to remove the families, once again.... You know, we fought long and hard in this society for the victims' families to be able to even come to court and give a victim impact statement, which wasn't there when I began policing in 1970. We finally got the victim's voice to be heard, and now we want to take it away for the reason that we want to protect them. I think we should protect them by making sure that people who commit serious crimes spend the appropriate time incarcerated. That's what the victims and the average person on the street want to hear.
Anyway, Minister, keeping in the same vein of victims being continually victimized, when the bill was introduced I made a list of some comments from various newspapers and media outlets. A number of families and individuals who lost loved ones made some comments about these more serious and heinous crimes. Most spoke about the hardship they faced, about which some people are telling us now that they want to relieve that hardship, but I wonder.... I think we'd best communicate with them, Minister.
Here are a couple of the quotes that I think really struck at the basis of this whole legislation. The first one comes from Theresa McCuaig, whose grandson was murdered. It was reported in the Kingston Whig-Standard in June of this year, and I quote Theresa. She says:
||It's going to be very difficult for our family to go through court three times in one year for each criminal, and if they don't get it they are allowed to re-apply every second year after that. So we're going to go through this hell every second year.
The other one comes from David Toner, whose son was murdered. Mr. Toner is now the head of a group called Families Against Crime and Trauma. It was reported in The Province in June of this year. He says:
||Victims of crime are often referred to as the orphans of justice. The rights of the offender are seen by the general public to always supersede the rights of the public itself, and the rights of the victim. Justice is a meaningless term when someone commits the most heinous crime imaginable, and is out walking the streets again just a few years later.
Minister, I wonder if you could comment on that and comment on what you've been hearing when you've gone across this country and talked to victims of crime.
My understanding is that under the Correctional Services Canada statistics that were released in April 2008, and the next set will be released in December 2009, of a total of 22,831 offenders under CSC's jurisdiction at the time, 4,429, or 19.4%, were serving life sentences, almost all for murder. Now, my understanding is that Bill C-36 is not retroactive. So I'd like the minister to explain.
I have a great deal of empathy for families who have members who are victims of crime, whether it was murder, rape, theft, assault, you name it. I'd like the minister to explain how he's going to explain to those families that will have to continue to live with the exact stress, fear, anxiety he's talking about, as a justification for removing the faint hope clause for those who commit these violent acts in the future, that the families who have already lost family members due to violence, or have suffered themselves, or a family member has been a victim of violent crime, are going to have to continue to live with that stress, etc. There are a little over 4,000 under CSC jurisdiction right now who are serving life sentences, almost all of them for murder, which means that at some point in the future they are going to be eligible for the faint hope clause.
How are you going to explain it to them?
Thank you, Mr. Chair. I will try not to get into an argument with you.
Mr. Minister, I am not sure whether you or anyone in this room has ever watched someone convicted of first-degree murder apply for parole. I have seen it, and I can tell you that it is an extremely painstaking process.
I have done all the analysis, I have met with Mr. Giokas, and I have studied everything carefully. Instead of proposing everything in Bill , why not propose just one other thing? We all agree that murder is the worst crime that someone can commit. When someone is convicted of first- or second-degree murder, why not give that person one chance only? After reading your bill, I did the math. A person is not eligible before they have served a minimum of 15 years. They have to go before a judge, and if they are not successful, they will probably have to go to 25 years.
As a lawyer, I would much prefer preparing my client just once. There is no need to do it two or three times because the rules are very clear and the judges, very strict. That might satisfy a lot of people at this table. Why not say that you have one chance only, that you cannot miss that chance and that you have to prepare properly?
Your bill promises something that is not necessary, since the individual who is unsuccessful once will have to wait five years to reapply.
After analyzing everything, I truly believe that we should say you have one chance only and you need to prepare properly, and we need to explain how it will work. That is the only solution as I see it.
Well, I think that's a very interesting point, Monsieur Lemay. You're coming at it from a direction I actually wasn't expecting from you or your political party, but I continue to be surprised on this.
Again, I think we're only talking about the people who are already in the system. I appreciate there are a number of numbers for them. I'm not sure it's 4,000, or exactly 4,000.
Again, one of the good things we have done is there is now some certainly as to when that application is going to be made. And with your proposal, if they have one time to do this, you would have the victims who are waiting, wondering whether it's 16 or 17 years or whether the individual is going to make the application after 18 years for his or her one time.
So I think this is a reasonable proposal. In the end, if we're moving to get rid of it, I hope it has your support.
Thank you very much, Mr. Chair.
I thank the minister and his officials for joining us today.
I want to comment particularly on the eloquence of the minister in speaking about the difficulties the faint hope clause has caused for victims of crime. I can tell by his eloquence that the concerns and interests of victims are very close to his heart and are a major consideration in this bill.
I'd like to shift a bit just from that to perhaps something that may not be as major but is equally important. It stems from the statistics that were touched on earlier about the April 2008 report showing that out of 125 offenders released under the faint hope clause, 15 had been returned to custody. In fact, one statistic was left out—that is, as of April 2008, one of them was still unlawfully at large.
So at least one in eight of the people who were paroled under the faint hope clause were returned to custody. And far from it being merely a technical concern, I personally regard every parole violation as a gamble lost. Every parole violation represents a failure of the faint hope clause, and every parole violation represents a risk to Canadians across the country.
That's what I want to ask you about, Minister, because under your bill, if it had been enforced, none of these people would have been released under the faint hope clause. That seems to fit in with your policy to keep our streets safer, and it seems to fit in with the government's policy. Is that another piece of this puzzle? Are you proposing this bill as part of the government's policy to make streets safer for Canadians?
I don't think there's any question about it.
I did have an interesting question. Somebody asked me when I introduced the bill whether I was saying that somebody who was going to commit first degree murder might not do so because they would now no longer be eligible to apply for that faint hope after 15 years. I said it would be very difficult for anybody to try to figure out, for starters, what could be in the mind of somebody who would commit premeditated first degree murder. But the point I made was that I know there will be less victimization in this country. There is no doubt in my mind whatsoever that the individual who has committed this heinous crime will spend 25 years before federal parole eligibility. It will be a blessing to the families who have to go through this, or have had to go through this process that has been described here, not to have to do this again, because they continuously get victimized.
But you're right: we want people to have confidence in the criminal justice system. We're trying to get rid of the two-for-one credit; that's just down the hall. That's part of it. I think that will increase people's confidence in the system they have in this country, and this is another part of that. When people have confidence in the system, it works to everybody's advantage.
So yes, we want to better protect Canadians; we want to reduce victimization; we want people to have confidence in the criminal justice system of this country. We want to be fair to those individuals who are being charged under our criminal justice system. They have to have rights—of course they do—and we want them to be treated fairly, but all as one part of it. You can't support one at the expense of another.
As Mr. Norlock and others have been saying, we have to make sure that victims are heard, that they are part of the process, and that their interests are taken into consideration. We can't ignore them, because then everybody loses. But you're right: this is part of our overall package to make Canadian society a safer one in which to live, and part of making it safer is to make sure that people have confidence in the system. That's what we are about.
Thank you, Mr. Chair. I will be brief.
Ms. Kane, I want to understand how the legislation would apply using a case that has already been settled. I want to know whether what we are doing could have been applied in the past. In Quebec, everyone heard about the case of Denis Lortie, who, in the middle of the National Assembly, killed three people and was later found guilty.
He is now out of prison. After serving eight years, he was released on parole. He wanted to kill members of the Parti Québécois. He was sentenced and later released.
If Bill had been passed at the time, could Denis Lortie have been released before serving 15, 20 or 25 years? This is an actual case. In Quebec, this individual is no longer in prison despite having killed three people in the National Assembly. If this had happened today, would he have been sentenced to 15, 20 or 25 years in prison?
You may be able to check that out.
I recall seeing a television program a very long time ago. It talked about someone who was released on parole twice and who committed a third murder.
Is there a way to determine if that has happened before? That would mean that this individual committed murder at a very young age, was sentenced once and then released, and then committed a second and a third murder.
The individual would have committed the first murder at the age of 25, the second at 50 or 51, and then another. The third murder was especially heinous, as it also involved sexual assault. This supposedly happened before the person was 40 years old, or 50 for sure. This case was often held up as an example of the flaws in the parole system for at least 10 or 12 years.
I was expecting to see this case included in the statistics, but it was not. I may have misunderstood the program, or perhaps it was inaccurate, that is, the person may have been released twice, but not for murder.
We have a motion. Is there any discussion?
(Motion agreed to)
The Chair: Thank you.
The second item is carrying on with the motion that Monsieur Ménard had put on the table and we were in the middle of discussing.
Monsieur Ménard, you had actually made the motion, and committee members were debating it.
I think I would be remiss if I didn't respond to some of the concerns raised on whether the motion is in order. I've sought the advice of committee staff, and I have a ruling on Monsieur Ménard's motion.
Monsieur Ménard has moved the following:
||That the Committee conduct an in-depth study of the Cinar case, including the allegations of political interference, to learn why no criminal action was taken against the key players and that the Committee report its comments and recommendations to the House.
As members know, each parliamentary committee works within its individual mandate, as provided in the Standing Orders of the House. The mandate of the justice committee is laid out in Standing Order 108(2) and Standing Order 108(3)(e).
Standing Order 108(2) reads as follows:
|| The standing committees, except those set out in sections (3)(a), (3)(f), (3)(h) and (4) of this Standing Order, shall, in addition to the powers granted to them pursuant to section (1) of this Standing Order and pursuant to Standing Order 81, be empowered to study and report on all matters relating to the mandate, management and operation of the department or departments of government which are assigned to them from time to time by the House. In general, the committees shall be severally empowered to review and report on:
||(a) the statute law relating to the department assigned to them;
||(b) the program and policy objectives of the department and its effectiveness in the implementation of same;
||(c) the immediate, medium and long-term expenditure plans and the effectiveness of implementation of same by the department;
||(d) an analysis of the relative success of the department, as measured by the results obtained as compared with its stated objectives; and
||(e) other matters, relating to the mandate, management, organization or operation of the department, as the committee deems fit.
Standing Order 108(3) goes on to say the following:
|| The mandate of the Standing Committee on:
||(e) Justice and Human Rights shall include, among other matters, the review and report on reports of the Canadian Human Rights Commission, which shall be deemed permanently referred to the Committee immediately after they are laid upon the Table;
This motion calls on the committee to conduct a study into the alleged actions of one individual in relation to one specific case. I would note that while this committee is fully able to undertake studies into matters concerning the Criminal Code or policy matters within the Department of Justice, it does not examine or make attempts to determine facts in individual cases. I therefore declare the motion as currently written to be inadmissible, because it exceeds the mandate of this committee.
Monsieur Ménard may not welcome that ruling, but I also remind him that he does have the option to raise the issue or the motion with another committee of the House.
So that's my ruling.