First off, the Criminal Lawyers' Association welcomes the opportunity to appear before this committee on what we believe are fundamentally important issues that are raised in Bill C-36.
The Criminal Lawyers' Association, as some of you may know, is a non-profit organization that was founded on November 1, 1971. Our organization represents approximately 1,000 criminal defence lawyers across the province of Ontario. The objectives of the organization are to educate, promote, and represent the membership on issues relating to criminal and constitutional law.
While the Criminal Lawyers' Association supports the proposition that offenders who have committed murder should only be released if they do not pose an undue risk to reoffend, we believe the amendments to the faint hope clause as contemplated by Bill C-36 do not advance this goal. In particular, the following in our submission should be noted:
Number one: All of the government's new crime legislation is designed to bring public accountability to the criminal justice system and restore public confidence. The faint hope provisions are about public confidence. It is the public—that is to say, the jury—who hears the evidence and is in the best position to make a decision.
Number two: There's been much said about the re-victimization that is caused by the current faint hope provisions. We must remember that by definition the convictions are at least 15 years old, the convictions themselves are not in dispute, and the finding of guilt is there. This is a prime opportunity for victims of violence to see what progress the offender has made.
Number three: The provisions provide much-needed incentive for convicted persons to fully utilize various rehabilitation and programming that's available or should be available while in custody. The fact of the matter is that eventually most offenders will be released. It is in our interests that they remain motivated to rehabilitate themselves.
Number four: As of this past April 13, 991 lifers were eligible to apply for judicial review and there have only been 174 court decisions made, resulting in the reduction of sentences in 144 cases. So it would appear it is only those offenders who have the best chance of success who are applying for reduction of parole ineligibility. In a sense they are vetting the process for themselves.
Point five: The National Parole Board has granted release with respect to the judicial review in 131 cases, although there is no information as to how many hearings after the reduction in parole ineligibility it took for the offender to achieve some sort of interim release. And it should be noted that a release doesn't mean that the offender has his sentence terminated. They are on parole for life—that's what life means. It also doesn't mean that the first initial grant will be a full-parole grant; it doesn't even mean that the first initial grant will be a day-parole grant. The reality of lifers in the correctional service is that, in order to gain a release, they have to build credibility through a series of incremental release stages whereby they gather trust from the decision-makers. So often the procedure would be that the initial release would be an escorted temporary absence; eventually you move up, if things go well, to unescorted temporary absence; from that point on—again assuming things go well and the person does not present an undue risk to reoffend—you go to a day-parole release; and then only finally at that point do you gain full parole, all things being equal and risk again being manageable. It's a very, very slow and, quite frankly, difficult process for the offender to be released even after a successful judicial review.
Point number six: From the statistics, it appears that of the seven offenders who had their full parole revoked—these are people who were released by the parole board, gained full parole, and in seven of those cases their parole was revoked, which means they were brought back into custody and their release cancelled—two were revoked for breach of conditions, three were revoked for a new, non-violent offence, and two were revoked for a new violent offence. Thus the overwhelming majority of lifers who are released do not reoffend and certainly do not reoffend in a violent manner.
Finally, in terms of that points I wanted to address in my opening statement, the current vetting procedure encaptured in section 745.61 of the Criminal Code—a vetting process by a judge before a case can get to a jury—is sufficient, in our view, to ensure that the applications deemed to be frivolous do not make it before a jury, and thus are cut off, if you will, at the beginning.
I'd be more than happy to answer any questions you may have.
Thank you very much.
There were two private members' bills introduced in the 34th Parliament that called for later access or an end to parole eligibility reviews for those convicted of first degree murder. Bill C-311 would have required those convicted of first degree murder to serve 20 years before review, while Bill C-330 would have eliminated judicial review of parole eligibility for those inmates. Both bills would have left the review process intact for those convicted of second degree murder.
There was another private member’s bill introduced in March 1994. Bill C-226 proposed to eliminate parole eligibility reviews altogether. This bill was around for some time, and it sparked great debate and controversy about the faint hope clause until Bill C-45 made its appearance, which continued the widespread debate and controversy. It ultimately resulted in amendments to section 745 of the Criminal Code.
Our organization has been meeting with various members of Parliament and requesting its full repeal since 1990. Actually, we started earlier, but nobody took us too seriously at the time. We used to prepare victims by informing them of this clause after the offenders in their cases were sentenced. Some would go back to their crown attorneys, who would inform them that it was not true, that the judge had stated clearly that parole eligibility was at 25 years, not 15 years. Needless to say, it caused confusion and more emotional instability among the victims. Some even got angry with us for seemingly giving them wrong information. At that time, very few members of Parliament, and virtually none of the public, including the media, were aware that the faint hope clause even existed.
It came as quite a surprise and a shock to many victims, members of Parliament, and the Canadian public as increasing numbers of Canada’s worst offenders approached the 15-year point and became eligible to initiate an application for judicial review. Parliament would once again face continuing pressure for another review of this law, which attempted to balance two often conflicting policy values: denunciation of the crime and rehabilitation of the offender. Eventually, by 1991, the naysayers finally accepted that it was, in fact, true. It became a volatile five-year public debate, which Parliament had to struggle with until 1997, when amendments were made by the Liberal government and the federal justice minister, the Honourable Allan Rock, in Bill C-45.
Twelve years ago, in 1997, there were many meetings and consultations after we were informed about what the justice minister, the Honourable Allan Rock, was proposing to do in relation to the upcoming amendments to the faint hope clause. We sought further consultation on Bill C-45. It was suggested by others that we should agree with what was being proposed. At least it was better than nothing. It was a step in the right direction as it would tighten it up somewhat, and we could still keep working toward the ultimate repeal of section 745. It was the old, commonly used “take one step at a time” solution.
You have to remember that at that time, Clifford Olson was preparing for his then automatic right to a 15-year review hearing in British Columbia. Paul Bernardo and Allan Legere by then were thrust into the picture, so the Canadian public was incensed, and there was a lot of pressure on government to do something. It was very intense at that time.
Our organization met with many victims across Canada, and we pondered giving our support to the proposed new amendments. But in the end, as I sat before the final justice committee meeting, prior to the new amendments being announced, in June 1997, I told the committee that we would accept nothing short of the full repeal of section 745. Our organization felt that it was bad law to make amendments based on a few high-profile cases of the day, such as Clifford Olson, who had made application for his hearing to be held in August of that same year. It came as no surprise, then, that the Bill C-45 amendments proved extremely controversial, given the interests and sensibilities involved.
On a personal note, for my husband and I, advocating on behalf of all victims of crime, it became a double-edged sword, because what did happen, as you all know, is that the new amendments took into consideration only multiple murderers. Many victims were very incensed. They said that they did not understand these amendments, as they implied that, under the new provisions of 1997, one murder was deemed less serious than multiple murders. They felt that this was an unprecedented and unacceptable use of volume as a measure of the seriousness of an offence.
They also felt that there were no real changes to the way the early review hearing process would be conducted, as the application hearing for early parole eligibility continued to operate with very limited information about the crime.
In addition, they felt that this was simply the creation of another level of bureaucracy and that an applicant's absolute right to a hearing had been replaced with an absolute right to launch appeals for a hearing.
Further, they felt the process continued to make the families of victims relive the murder and continued to cost taxpayers.
In any event, it became clear that the matter would not be put to rest by Bill C-45. Indeed, opposition parties continued to call for outright repeal of the judicial review process, with at least one party using the promise of repeal as part of its platform for the next election.
The unrest and controversy continued after the amendments of 1997. It was still a confusing issue, as judges continued to state at sentencing that the offender would serve a life term with parole ineligibility set at 25 years. Victims and the public were still confused, so in 1999 the code was amended again by adding section 745.01, whereby a judge, when imposing sentence, is obliged to make a statement for the benefit of the victim's family and relatives concerning the existence and nature of the “faint hope” clause.
At this point, I would like to say I feel perplexed when I see this long-term, important issue being used as a political tool. Comments about victims being used for political gain is hurtful and not factual. We did not see that happen between 1991 and 1997, when the Liberal government had to wrestle with this same controversial issue. It is controversial. It bothers me because we're talking about real lives, the lives of the victims, the lives of family, relatives, and friends, as well as the lives of the offenders this clause will affect. This is very serious.
In 1971, just five years before the faint hope clause was adopted in 1976, Solicitor General Jean Pierre Goyer announced in the House of Commons the government’s intention to stress rehabilitation of criminals even though it posed a risk to the public. He went on to say that:
||...too many Canadians...disregard the fact that the correctional process aims at making the offender a useful and law-abiding citizen, and not any more an individual alienated from society and in conflict with it.... Consequently, we have decided from now on to stress the rehabilitation of individuals rather than protection of society.
This direction was not without controversy. With that direction in mind, our organization can only assume that this controversial direction played a significant role in the creation of the faint hope clause in 1976. It was in fact the same government. We believe that when the faint hope clause was adopted 33 years ago the Canadian public was not as educated or informed on criminal justice issues as it is today. It was not an option for victims of crime to be consulted about their opinions, as they are today. In fact, crime victim organizations were unheard of back then. At that time, the only organizations consulted were organizations for offenders' rights. So it makes sense that there continue to be amendments made to the controversial faint hope clause.
Critics argue that applications made under the faint hope clause traumatize the families of victims who must revisit the details of the case and consider the possibility of the criminal returning to a community. Proponents argue that the clause is necessary to give convicted murderers some hope, and thus prevent prisons from becoming more dangerous. One of our senators stated that “Without the presence of this clause, many offenders will feel they have little if any incentive to rehabilitate, or even to live peacefully with their fellow inmates.” These are true concerns.
There is also concern about the costs to Canadians. We at Victims of Violence appreciate the concerns raised about where our tax money is being spent in the cost of housing the offender for a long time. But perhaps it is more important to consider the costs of offenders being released too early. Perhaps it is more important to factor the cost of human life into the calculations on the presence of section 745.6. Or perhaps Canadians' views should be considered regarding their tax money being spent on the faint hope clause hearings, which require defence lawyers, crown attorneys, judges, juries, court time, court reporters, expert witnesses, airfare, security guards, prison guards, and the cost of having victims' families attend. Each hearing is very expensive.
We at Victims of Violence believe this process is heavily weighted in favour of the offender. The emphasis is on rehabilitation rather than the crime itself, the victim, or the impact of the crime on the family and communities.
We believe that when Mr. Warren Allmand, the member of Parliament responsible for this clause, talked about the waste of the life of the offender who is kept in prison for 25 years, he seemed not to take into consideration the innocent life the offender wasted when he or she made the decision to commit murder. There is no parole or judicial review for murder victims and their families. They have no faint hope clause or legal loophole to shorten their sentence.
Victims of Violence also believes the offender is not sent to prison to be punished, but rather the sentence itself is the punishment, according to our Criminal Code of Canada. Thus we continue to ask a very simple question: Is the sentence 25 years, or is it 15 years? It cannot continue to be both.
Victims of Violence continues to have grave concerns about the changes and the amendments of 1997. At best, we hope it will prevent some families from being dragged through the judicial review hearings; at worst, it only complicates the understanding of the process and does not return the truth in sentencing. A sentence of life with no eligibility for parole for 25 years is still not what it implies. It is not right that some victim families have to endure the faint hope clause hearings and others do not, or will not have to, since the amendments of 1997.
In closing, we'd like to respond to a suggestion made by a member of Parliament to in the House of Commons. He suggested that due to his concerns for the victims' families having to endure the faint hope clause hearings, perhaps there should be an interim phase built in when a judge and jury would look at the situation as the system allows for, and then not have to involve the victims' families. I wish to thank that member for his sincere concern, and I will try to answer his suggestion from the perspective of a victim. However, I do not expect it to be fully understood or agreed with by all.
Most victims of crime feel we need to attend any and all proceedings dealing with the offender who took our loved one's life. It is with humble honour and strong conviction that we represent our loved one, for you see, no matter how many years go by, there is never closure when another human being has taken your loved one's life. There is never closure in the manner in which your loved one died. It is unnatural. The result of murder is ugly. The wound of the crime in violence is always there at the surface. It never leaves, even though our lives continue and we discover some years later that there really is a life after murder.
In reality, the victim knows there is closure to certain stages of the justice system, there is a finality to the proceedings, or there is supposed to be, and that finality is a form of closure. For us, it seems it is the only form of human rights we have on behalf of our loved one, so we, the family, will always be there to represent them.
Most victims feel the offenders chose to make themselves a part of our lives when they chose to end the life of our loved ones. Henceforth, we are now, not by choice but by circumstance, a part of the offender's life in representing our loved ones, and thus we want to be a party to all proceedings, which includes any form of parole hearings.
I hope it sheds a bit of light on why it does not seem to make sense to some people that we as victims would want to put ourselves through these rigorous parole hearings time after time, even years later. Some people think it is done out of revenge, and for some, maybe it is. Others find us to be a nuisance at the parole hearing stage, and maybe we are, but mostly it is quite simple for us: the offender and the justice system may have forgotten our loved ones, but we, the victims' families, have not. Most of us will always be there to represent them and speak on their behalf. That is why victims' families attend any and all hearings, even though it opens up the wounds no matter how many years have gone by. That is just the way it is.
In our continual efforts at rehabilitating ourselves, not just the rehabilitation of the offender should be taken into consideration.
Maybe it is punitive action we are talking about in repealing this clause, but why do we have a law that is felt to be too punitive? If a political party and legislators feel that 25 years is punitive and that the Canadian public thinks it is too punitive, then change the law to 15 years. That way it will not disrespect the life of the victim by playing games with the true sentence of Canada’s Criminal Code. That is why families feel so much unrest on behalf of their loved ones. They are living a lie on behalf of their loved ones. It is not right.
I think the only answer our legislators of today have is to uphold what our Criminal Code states, which would ultimately mean voting on the repeal of the faint hope clause. When it comes to sentencing in our Criminal Code, you cannot have it both ways. Our respected Criminal Code is in disrepute over this clause, and has been since the first cases in 1987. It will remain that way until a decision on “truth of the sentence” is upheld.
Thank you very much. Sorry I went over the time.
Yes, although I don't presume to be fully apprised of all the issues related to men, because it has been some time since I have worked with men.
I'm Kim Pate, with the Canadian Association of Elizabeth Fry Societies. I want to thank the committee for inviting us here. I also thank my co-panellists, Michael Mandelcorn and Sharon Rosenfeldt. Many of us have been here many times before.
For those of you who aren't aware, our organization works with marginalized, victimized, criminalized, and institutionalized women and girls. Across the country, we provide everything from early intervention work with women and girls, to victim services in some areas, resettlement work, and work in the prisons. There are a whole range of services. That is the context for the bulk of the information I'll be presenting. Our organization has worked with each of the women whose cases have been subject to the judicial review to date, so I can also speak specifically to some of those.
With the greatest respect for their perspective, we know there are families of victims who are part of groups such as Families Against Mandatory Minimums, which is a U.S.-based group that has strong support. Some of you also know there is a history within my own family. My daughter is without a grandfather because of a murder that happened. I don't presume to have full knowledge of the impact, but certainly I have some knowledge of the impact that losing someone in the family can have on the entire family.
One of the things I think is very key is that when the hearings were happening in 1996, before the reforms of 1997, there was a lot of information that was not correct being put forth in the media. You heard some of it. Some of the information was that section 745, or the faint hope review, changes the sentence. In fact it doesn't change the sentence. People are still serving life sentences. As you know, it changes the parole ineligibility period, if it's successful.
We know from many years of watching this faint hope process that the bulk of those who are eligible to apply to the chief justice in the province they were convicted in don't even apply. The last figures I've been able to obtain—and Michael Mandelcorn talked about actual numbers—are that it is about 39% of those who are eligible who apply. Certainly there are some, as Sharon Rosenfeldt has spoken about, who have no hope and don't get past the chief justice stage. If there's no chance of them proceeding beyond that stage, they don't. Those who do go before a jury of 12 individuals from the community where they were convicted. Having sat through a number of these proceedings, I can tell you they are very rigorous. Victims do have a say, according to the legislation, and some choose to have a say and some choose not to.
For the women whose cases I know of, six of the ten who have been eligible to date were involved in the deaths of men who were their abusers. It puts a very different light on who we're talking about. They were held responsible for those deaths. They are in jail for those deaths. They're serving sentences for first degree murder in relation to those deaths. For some, that is because they were convicted before we knew much about the plight of battered women. Others refused to have their children testify when their children were the only potential witnesses. Some were encouraged not to testify at all. And for some, it was because of other circumstances related to their own lives, or they were involved with other people who were also involved in the commission of the offence. Of those ten women I'm aware of, two have been found by the jury to be ineligible for a reduction.
One woman has chosen never to apply, even though she was one of the ones with an abusive husband, because it was her children who would have been the witnesses. She was concerned about the impact it would have on her children, to not only lose their father but their mother going to jail, as well as the impact of a lot of publicity around the case. She, like many women who have experienced violence, took partial responsibility. Even though legally, publicly, morally, ethically, we would not hold her responsible for the violence that she encountered, she did. When it was time for her to come for her 745 review or to apply, if she chose, she chose not to because she said that it now would be her grandchildren who would be impacted. She refused to even apply to be considered under the faint hope clause because she was concerned that the publicity would impact her grandchildren because they're from a small community.
Of those who have been successful, as we would define success in this context of having been reviewed, victims have been involved in a number of the cases and a number have not. Some of the victims were members of the same family as the perpetrator in many respects. In those cases, it takes.... After the judicial review process, after the process of the faint hope clause has commenced, which can't commence until the 15-year point, even in a successful case.... There is the application to the chief justice, then you go before the jury, and you have the consideration of all the evidence, including the views of the victim and the views of Correctional Service of Canada and people who have worked with the individual. Then the jury weighs whether in fact this person is deserving of the option to apply to the National Parole Board early for a parole ineligibility period reduction. Then they have to agree on what that parole ineligibility period reduction is.
In my experience with those who have been granted by the jury the ability to apply and have had an ineligibility period set, it is usually about three years before they will get before the parole board. Sometimes they cannot come before the parole board, if they haven't completed everything that the Correctional Service of Canada would want them to complete in order to support an application to the National Parole Board. They have to finish whatever programming they were supposed to take. As some of you know, particularly with the increased numbers of individuals in prisons, the last people on the list for programs are those serving the longest sentences.
In order to go forward, they have to have the recommendation of the Correctional Service of Canada. Then they apply to the National Parole Board, and then the National Parole Board considers whether in fact they are eligible to be released.
The primary focus of the National Parole Board is the protection of the public. They will weigh the evidence, and it can take any time length. The earliest I've seen someone come out is within two years, and most people have taken between three, four, and five years once they are eligible for the application for a judicial review.
I think the process is very onerous. This is not to diminish in any way the voices of anybody else on this panel, but it is an onerous process. It particularly looks at whether this individual has completed a process in order to be deserving of an opportunity to re-enter society and continue their life sentence in the community. That sentence never ends; it does continue.
Of those I'm aware of, there have been some returns. Some of the men have returned. There was one woman, and she's a woman with an intellectual disability. She was one of the ones I was referring to who was one of the early reviews. There was not much known about battered women at the time she was convicted. She was caught up in something, was taken advantage of in a situation. She was returned briefly to prison and then released again.
To my knowledge, nobody has been re-involved in any kind of criminal activity. The women are going on to being part of their families and raising grandchildren and that sort of thing. The risk to the public and the human and social cost and the extent to which they are still repaying.... They are paying back for the loss of life for which they were responsible. It continues. In some cases they were fully responsible, and in some cases they were partially responsible. Every one of those women still tells me routinely about the responsibility they feel and how they don't go one day without thinking about the individuals for whom they were partially responsible or fully responsible for their deaths.
One of the things to be aware of is that when we're looking at this approach there are huge human and social costs fully on those who are identified as the victims and those who are identified as the perpetrators. Those who have no glimmer of hope of receiving judicial review, in my experience, very rarely apply. I think Sharon gave the example of Clifford Olson, who very clearly hasn't followed that path, but certainly most others have.
So one of the things we need to do is not fuel misinformation to the public or to victims of crime. We need to be very clear that this option is only available for those individuals who work to show that they have dealt with the issues that contributed to why they're in prison in the first place. Only if they're unanimously deemed to be deserving by the jury that hears their review will they even have an opportunity to apply to the National Parole Board. Only after they have proven to the National Parole Board that they're no longer a risk will they have the possibility of being granted some form of conditional release. That can start with passes for most people and go to day parole in a half-way house.
Even after full-parole eligibility there are individuals who are still in half-way houses until the parole board is comfortable with them being released on full parole. So it's a misperception that people will walk out after 15 years as opposed to 25 years. Most people believe that happens, but in fact that doesn't happen either.
It's very important that it be clear that the reason our organization, the John Howard Society, and many other groups oppose this bill is because it appears to be the pretext of a solution for a problem that isn't there. It's a very onerous process and not everybody walks out. We have many checks and balances already in place to ensure that doesn't occur.
I want to thank the witnesses for their testimonies. Everyone was listening with rapt attention.
In the previous session we had Mr. Teague, who represented his interests in terms of what happened to his own family. There was quite a revelation in that he came in with a view that was different from the view he had held previously in terms of feeling some form of...I won't go as far as forgiveness, but some empathy for a convicted person who might be able to change in the system.
Determining an appropriate sentence is a very difficult process, and judges go through this process. It's why somebody before us drafted the complicated section 718. If you wanted to give insult to section 718, you might say it is a bit schizophrenic, because it says we have to consider these principles, and they're competing principles. That's what we all have to recognize.
In my view, they're given equal weight, and judges strive to find the balance. That's what we're trying to do here; we're trying to find the balance between various societal goals. There is deterrence, and deterrence is very important. We have to have general deterrence for crimes in our society. We also have to have denunciation, because it's in the code. It's there, and denunciation is what people feel is just. Denounce what is there.
Then, generally speaking, there are elements that relate to the person who committed the crime. These are principles with respect to rehabilitation, and I know that Marlene will be rehabilitated if we move her BlackBerry away from the microphone. There's rehabilitation and there are elements of remorse, or how the person who committed the crime might be a better person.
But there isn't--and I think we're all struggling with why there isn't--anything specific with respect to what the crime did to the victims of the crime, the victimization of the event. You might say it belongs in denunciation. You might, but it's not. It's something that's perhaps missing. It's not in our code. Maybe the argument should be that we go back to the basics of the code, look at the maximum and minimum sentences, make them mean what they say, and make section 718 more responsive to how we feel we should deal with these after reviewing the evidence.
However, we're not dealing with that. We're dealing with a person who's incarcerated. We, and even representatives of Elizabeth Fry and John Howard, would have to admit that for the first 15 years in these cases, the law says there's no hope of getting out. That's for the first 15 years. With faint hope, there is no hope of getting out, so do we admit that for the first 15 years we're serving the purposes of denunciation and deterrence, and that's the sentence? Even if you had a conversion, became a very worthy person, learned the errors of your ways and all that sort of thing, after the first three, four, five, seven.... Fifteen years is a long time, and there is no hope of your getting out, no hope of parole, but between 15 and 25 years, and periodically, there may be hope through this process.
The question is, why didn't we just write it as 25 years? Why didn't we just write it as 15 years? Why didn't we just write it the way it was? How valuable is it to us to turn people while they're incarcerated? That's a very valid point. These are general questions to everyone.
I have a specific question to Mr. Mandelcorn. Do you, in your experience, believe the elimination of the faint hope provision will alter sentencing or will alter judges' sentences in particular circumstances?
Finally, I couldn't agree more with Ms. Rosenfeldt's statement that there is a spectacle of revictimization each time there is a hearing or evidence is asked for by the chief justice in the first stage. With you, I also believe very much that every victim's family--and I know many--would feel it their duty to appear, and therefore there's no bye and no alleviation of the pain, so we have to be very careful in balancing this and not put families through this incessantly.
Perhaps Mr. Mandelcorn could reply first on that specific point.