I'll do it very fast. I'll be a couple of minutes.
To begin with, I would like to thank the Committee for reviewing Bill C-232, which is of vital importance to this country. As you know, we have two official languages in Canada: French and English.
Among those who appeared as witnesses, the Hon. Justice Major, retired, stated that he is opposed to Bill C-232. I was here when he gave his testimony and I listened to it with great interest. He said that, as a Supreme Court Justice, he had used the translation system and been very satisfied with it. In his opinion, that system is impeccable.
But, in your opinion, how is it possible for a person who speaks only one language to know whether the translation is impeccable? If I do not speak Italian and someone translates my words into that language, I will not be in a position to say whether he is doing a good job or not. I will not know what he is saying. I have no doubt that Justice Major was satisfied, but the fact is he was not in a position to know whether the translation was accurate or not.
With all due respect to our translators, who do an extraordinary job, the fact is there are times when they are unable to follow what I am saying in the House of Commons. When that happens, the “blues” have to be corrected. For a judge, however, there are no “blues” that can be corrected.
Mr. Chairman, someone said—and Mr. Petit may want to make this point—that unilingual MPs should not be ineligible for an appointment to the Supreme Court. In Quebec, we are talking about 14,000 lawyers. And the legislation is clear: at the time of his or her appointment, the judge must already be bilingual, and therefore capable of serving Canadians in this country's two official languages. That way, it will not be necessary to determine whether service should be provided in English, in French or in both languages. An example has to be set at the top and filter down from there.
I invite you to review the testimony of the National Defence general who appeared yesterday. He said that the bilingualism issue with respect to service delivery has to be dealt with and that it has to start at the top. That is exactly what he said in front of this Committee. I suggested that the Supreme Court be told the same thing.
I will leave this in your hands. You have a wise decision to make.
I want to thank you all for your work in relation to Bill C-232. I believe this legislation will have a profound impact on the history of our country as regards respect for our two official languages.
Most of us are clearly bilingual and able to express ourselves quite easily in either the language of Shakespeare or the language of Molière, depending on what our main language is. However, when a lawyer is appointed a judge, he will be required, without the assistance of an interpreter, to understand all the legal subtleties in the language of the person appearing before him or her. What will that mean when the discussion relates to the Civil Code, certain criminal laws, the Bankruptcy Act, and so on? Legal terminology is specialized and difficult. Even in my own language, in French, I sometimes have trouble. Even in my mother tongue, I may disagree with the French-speaking lawyer who is arguing the case at the same time. I am not talking about a general level of proficiency when discussing something with the opposing party; I am talking about legal terminology.
Official languages are absolutely critical in this country, but if we include the words “without the assistance of an interpreter”, that will mean… There are approximately 22,000 lawyers who are members of the Quebec Bar, including many who handle cases outside Montreal, be that in Quebec City, in the Saguenay—Lac-Saint-Jean region or in Abitibi. The possibility of their being able to argue a case in English is practically nil. Mr. Ménard always won all his cases, but he argued them in French. He could speak English, but he would not have the same skill, without relying on an interpreter, because he has not had an opportunity to argue a case in English.
I am from Quebec City, the second largest city in Quebec. Lawyers in Quebec argue their cases in French 99% of the time. Over a 30-year period, I argued cases in French. I can speak English with you, with Ms. Jennings and with my other colleagues, but supposing I wanted or had an opportunity to be appointed to the Supreme Court, because I had won all my cases and was a good lawyer. Well, I would not be able to because, without an interpreter, when dealing with legal matters—particularly extremely specialized cases—I would have trouble and would require the services of an interpreter.
That is precisely the reason why the word “interpreter” is so important. I believe most of our Supreme Court justices are functionally bilingual. If we demand that of those sitting on the Supreme Court, this will have to move further down the chain and be demanded of all judges, in all courts, whatever they may be, at least in the province of Quebec. There are bilingual lawyers who are able to argue a case in the other language, but they require the assistance of an interpreter. And they will no longer be able to do so because of this extremely far-reaching directive.
When you work in the legal field, words are important. Those who are appointed must, first and foremost, be highly skilled members of the legal profession, which is an extremely specialized area; that is very much to their credit. Quebec lawyers who are only able to argue a case in French will not be eligible for selection; therefore, they will be discriminated against. The same thing may happen to people in other provinces. Some lawyers are only able to argue in English, not in French. So, this will create major problems. That is what I wanted to draw the Committee's attention to.
In my opinion, the danger is that we will shut out young lawyers who, like myself, went to Laval University and endured Bill 101. I have never had an English-speaking client. Even if I were the best lawyer ever to have argued a case, I would not be eligible for an appointment because I cannot work without an interpreter—at least, not at the Supreme Court.
Therefore, we will have to tell young lawyers that they are being excluded. Without an interpreter, working in the legal field is extremely difficult. I think the Committee should pay close attention to the fact that a word is being added here. I support official languages, I am a member of the Standing Committee on Official Languages and I am part of a government that has done a lot for official languages; so, I support them unconditionally, but I don't want to create discrimination elsewhere.
In my opinion, it would be discriminatory towards members of the legal profession—at least a great many lawyers in Quebec—if we were to tell them that, unfortunately, they cannot be appointed to the Supreme Court because they have to be able to work without an interpreter. How are we going to assess them, without the assistance of an interpreter? I don't know. Will we assess them using a grid? I don't know that either.
I believe this bill is well-intentioned, but dangerous. That is what I wanted to say, Mr. Chairman, and I ask Committee members to take a second look at it, including its effects on their own province, because I believe it would be dangerous for all the provinces.
Colleagues, I similarly am very concerned about clause 1 of this bill and will be voting against it. My concerns, I suspect, are similar to those of my friend Mr. Petit. I represent Alberta, as you all know--some would think so.
Some hon. members: Oh, oh!
Mr. Brent Rathgeber: I represent Alberta on this committee, let's say.
We have very few bilingual lawyers and even fewer bilingual jurists. When the executive director of the Fédération des associations de juristes d'expression française de common law, Mr. Remillard, was here on June 15, he told me there were 37 members of his association from Alberta. In a province with over 7,000 practising barristers and solicitors, that represents less than one-half of one percent of the practising bar who are members of his association. I appreciate that membership is not mandatory, even if one is bilingual; nonetheless, it's a very small fraction.
I hearken back to the words of Justice John Major, retired—just two sentences:
||In a practical sense it is going to be very difficult to find judges from B.C. and Alberta who have had the same opportunity to be bilingual.
Those are very sage comments, Mr. Chair. Here at the Parliament of Canada, Parliament generously offers classes in bilingualism with one-on-one tutors. I've tried to avail myself of that. It's difficult to learn a second language in your adult years, as I'm sure you all know. It's also balanced by time constraints, especially for those of us with protracted travel schedules coming back and forth from our constituencies. It's difficult to learn a second language in your forties, I would submit.
The Supreme Court of Canada is the highest court of the land. I respect Mr. Godin and I think his bill is well-intentioned. However, I think it fails to take into account that although Canada is a bilingual country, not all regions of our country are bilingual. I speak specifically of British Columbia and specifically of Saskatchewan and specifically of my province of Alberta. It is going to be difficult—not impossible, but difficult—to find a qualified and experienced jurist who meets the bilingual requirements of this bill. It would be most unfortunate if any region of this country were denied representation in the highest court of the land.
Parliament is as important, probably more important but certainly as important, as the Supreme Court of Canada. But there is no requirement, thankfully, that parliamentarians be bilingual. Parliamentarians can speak in any official language. In committee, in the House, and in the Senate we rely on the translation services. I will concede, Mr. Godin, that those translation services are imperfect from time to time, but they are functional. If they are functional and workable for the Parliament of Canada, certainly they are functional and workable for the Supreme Court of Canada—even more so in the Supreme Court, where written factums are filed. I appreciate that in real time, translation is difficult. But when a translator has time to rethink their words, as you can do if you're translating a written document, translation becomes close to perfect, if not perfect, when translating written documents such as factums and transcripts from lower court proceedings, which invariably need to be filed at the Supreme Court. Regardless, if unilingualism leaves one eligible for membership in Parliament and the Senate, I cannot subscribe to the idea that the Supreme Court should have a higher test.
I do not believe we should sacrifice competence for linguistic proficiency, and I'm afraid that is what would be the case—either that or that some regions, such as the region I represent, would be excluded from the Supreme Court.
On a lighter note, I think it's ironic that I myself, as a unilingual lawyer, would not be eligible for appointment to the Supreme Court, when there are so many more relevant reasons why I shouldn't be eligible for employment.
Some hon. members: Oh, oh!
Mr. Brent Rathgeber: Those are my comments, Mr. Chair. I'll be voting them.
I don't want to dwell on this at length, but I simply must respond to Mr. Petit's comments and take apart his arguments one by one.
I have 30 years of experience as a lawyer and I have argued cases in front of courts of all kinds, even the Supreme Court. I can assure you that if you are arguing a case in front of the Supreme Court, and are speaking quickly in French or having an exchange with another justice—the Hon. Justice LeBel, for example—the Right Hon. Justice Beverley McLachlin will have no choice but to interrupt you and ask you to slow down, because the interpreter is unable to follow. That is something I have the utmost respect for.
I could cite dozens of examples for Mr. Petit and colleagues opposite. There is not one lawyer anywhere in Canada who knows, the day he is sworn in, whether he may one day become a Supreme Court justice. That is impossible. If someone right here at this table or somewhere else tells me that, one day, he will be appointed to the Supreme Court, well, he is lying. An appointment to the Supreme Court is the pinnacle of a legal career. One is called to the Supreme Court. Let me draw a parallel here: it is like being chosen to be the next pope. Very few people could even think that, one day, they might be appointed to the Supreme Court.
However, with all due respect for Mr. Petit, I know of no judge in Quebec who is unable to conduct a trial in French and in English. I know that because, as Bâtonnier for my region, I sat on committees looking at judicial candidates. As soon as you get to the level of the Court of Quebec and the Youth Division, judicial candidates are asked whether they are able to speak and understand English.
So, I must say I am a little surprised to hear today that Supreme Court justices may not be able to follow a debate without the assistance of interpreters. In my opinion, this is a very good bill which will have repercussions—I readily admit that. An appointment is made to the Supreme Court only once every five or ten years. People who aspire to be appointed to the Supreme Court will have to start preparing now. The evidence was clear when the last appointment was made. No one, in Quebec or elsewhere, said that the justice who has just been appointed, and whose name escapes me for the moment, understands French. He may be able to follow a conversation or an exchange, but we believe—and I am saying this on behalf of Quebec—that an example has to be set at the top, so that it is possible to argue a case in both languages at the Supreme Court. Exchanges will be greatly facilitated as a result.
With all due respect for the Hon. Justice Major—and heaven knows, having argued a case in front of him, I have a great deal of respect for him—there is one thing he didn't say, and that is that during the sessions where Supreme Court justices get together to discuss cases—they meet as a group of nine or seven, depending on the bench that will be hearing the case—their discussions take place in English 92% of the time, because the majority of cases that come before the Supreme Court are obviously cases from English Canada. I say that with the utmost respect.
I see no problem in passing this bill, through which a good example will be set. Candidates who aspire to an appointment to the Supreme Court now have 5, 10 or even 15 years to prepare. If this bill passes, they will have 15 years to prepare themselves.
I was listening to Justice Beverley McLachlin. She is an anglophone who took immersion in Quebec, in the Lac-Saint-Jean area. I would have invited her over for a conversation in French. She would be perfectly capable of holding such a conversation, as would eight of the nine current justices.
In my opinion, this is a non-debate, a non-issue, and we need to send a clear signal. That's why I invite all of you to support this bill.
I think what we have here is a perception that there is a taking away of a right or representational right for persons from provinces, or for provinces themselves, to be represented on the Supreme Court of Canada.
I think it's important to say that the composition of the Supreme Court of Canada is wholly a discretionary and political operation. There is nothing in the law, not even to the status of a convention, that suggests, outside of Quebec, there should be certain members of the court from certain regions of the country. It's followed, but it's not always followed.
There is some consternation in some quarters when a certain province's time comes up and it is not picked. But even if it were the case that there was an expectation to be represented on the Supreme Court, we are talking about the collision of a provincial aspiration or personal ambition with an individual right. I firmly believe that there is nothing more important than the individual's right, before the highest court in the country, to know that his or her case will be heard and understood properly.
Now I also understand, and Mr. Petit makes the point very clearly, that it's not a perfect system and it excludes in some cases qualified candidates for even candidature for the highest court. But Mr. Lemay makes the good point that one can learn the language in the course of their legal career. Let's talk about the top nine jurists or legal people in the country. Surely they have the acumen to at least learn to understand the language. For a Supreme Court judge to be on the bench, it is not a case of proficiency in oral capability, but in understanding, which means to read and understand the language.
Finally I would say that the solution—and I've discussed this idea with Mr. Petit, Mr. Moore, the Minister of Justice, our own critic Mr. LeBlanc, and Mr. Godin—is this, and I want to put it down as a marker. The law lords of England have just been retired and made into the supreme court of the United Kingdom, with 12 members. There is a myth in Canada that because the Supreme Court of the United States consists of nine judges, we have to have nine and only nine judges and that they have to sit all at the same time on all questions. All of you know that in the courts of appeal across this country, which work pretty well, there are many more court of appeal judges than sit, in a bank of three or five, depending on the issue. And this works quite well. It's really something the government should look at as a policy, Mr. Moore—parliamentary secretary, highest-ranking official here.
That is my closing point.
Of course, I would like to congratulate Mr. Godin on his private member's bill. Dominic and I are very proud to be part of your family, the family of New Brunswickers fighting for linguistic equality across this country. We are on the same side in this battle, even though it's a different story when it comes to politics. In any case, congratulations.
I'll just make a few points. I won't be very long.
I think this whole discussion that I'm hearing, mostly from the other side of the room, is focusing on the interests of the legal profession and the judiciary and what is in their interests. Our role as parliamentarians is to pass laws that are in the interests of our communities and our citizens. They're our absolute, primary, first consideration. It seems to me that every Canadian has the right to expect that if they have a case that ends up in front of the Supreme Court, it will be heard by judges who understand fully what is being said.
There was a reference to Italy. I was in Italy this spring. I believe our interpreters are among the best in the world just because of the experiences I've had in various parts of the world using interpretation. But it happens that they make mistakes. They misinterpret.
In one session, we had a university professor who was more than a little long-winded. He went on--I timed it--for the better part of a minute, a minute and a half, and the interpretation lasted for about six or seven words.
So that happens from time to time. We can't rely on guaranteeing to our citizens that interpretation will always be the best.
The other point I want to make, Mr. Chair, and this is specifically to Mr. Rathgeber, is that I've now sat through the last four appointments to the Supreme Court. I think I've said this before, but I want to repeat it, because obviously Mr. Rathgeber didn't hear me the last time I said this. None of those appointments were from Quebec. The breakdown is one from the Maritimes, three from Quebec, three from Ontario, and two from the west and the territories.
So I've sat through the last four appointments that came from the other three regions and not from Quebec. In each one of those cases, in each one, we had more than enough qualified candidates who were fluent in both official languages. And I mean fluent in both official languages; all of them who were judges—not all of them were—at the lower court were already conducting trials.
That included candidates from your province, Mr. Rathgeber.
So it's not a question of availability of qualified candidates. That's not a fear we need to have, because they're there.
I want to conclude by echoing Mr. Lemay's point about the leadership that I think we will see coming from this bill being passed and brought into law. I'm going to use my own law school as an example. There's discussion going on at my law school to begin to teach some courses in French. We're not a bilingual law school at all, at this point, but there is some discussion about that happening.
I think if we pass this law and actually get it into effect as a full amendment to the current legislation for the Supreme Court, we will begin to see more and more of that. We'll begin to prepare more and more candidates in the legal profession to be able to speak both languages and to function in both languages in our courts.
Thank you, Mr. Chair.
As a lawyer, as someone whose mother tongue was French and who became anglicized, if I can call it that, through the then-religious-based school boards in Quebec; as someone who has presided over public inquiries throughout the province of Quebec—probably in the nature of 30 to 50 over which I actually presided and an additional, equal number in which I was part of the bench, as part of the Quebec Police Commission—I can tell you that the colleagues with whom I sat who were unable to hear the witnesses who were testifying in English or hear the arguments of the lawyers who were presenting them in examination or cross-examinations without the filter of translation, and we had excellent translation as well, were quite envious. That's the first thing.
Second, I repeat and support what Mr. Comartin had to say: that our primary interest here is our citizenry. Our citizenry has the right to expect that their case and their documents will be understood in whichever official language they were submitted in, and that whoever is adjudicating will not require the filter of translation in order to understand those documents in their original language.
Finally, I'd like to say that if we truly believe in bilingualism; if we truly believe in the official languages here in Canada, then there is no better symbol or sign that can be swept across this country to all of our citizenry—those who are already breathing on this earth and those who are to come in the future—who aspire to a career in the legal profession and may at some point develop an aspiration to the highest court of the land, than to encourage them and encourage their parents to encourage them to learn both official languages and to become proficient enough in the language that is not their mother tongue to be able to actually preside without translation.
I support Mr. Godin's private member's bill wholeheartedly. I will be voting in favour of it and would encourage all of my colleagues to do so.
I apologize for changing my mind.
Mr. Chairman, in answer to the point raised by Mr. Godin, I don't speak French very well—that is clear—but I believe I fully understood everything that was said in French today, as well as what Mr. Godin said, with the assistance of translation.
Second, I am somewhat mortified that we are considering a bill of this nature without anyone's referring to the primary role of the Supreme Court of Canada, which is a unifying role. The Supreme Court of Canada is a national institution that exists to unify laws across Canada. It is, in that sense, completely dissimilar to provincial courts of appeal. For my part, at least, that unifying role of the Supreme Court of Canada is so important that I would suggest it will not be accomplished effectively by excluding large segments of our population from eligibility on the basis of ordinary linguistic proficiency.
I really do feel strongly that this issue involves not just the question of the rights of litigants, who would be well served by a court of nine justices who will have varying degrees of proficiency in either language but who together will be able to yield sufficient justice to all litigants, and that we should not consider the overarching question of making this an inclusive court.
My mind is already made up on this bill, but seeing how the discussion has been evolving, I think it's important to remind people of something which is not a criticism, but rather an observation, and perhaps you will then have a better understanding of my fundamental option.
In the Canada that I dreamt of when I was young, I did not believe that the Supreme Court had a unifying role. I believed that, quite the contrary, it would recognize the two distinctive legal cultures—the civil law and the common law—and be able to apply them differently, when warranted. The evolution of two cultures, united and moving forward in parallel—sometimes in war, and at other times to attain certain goals—presupposes that they will continue to evolve in parallel fashion while remaining distinct one from the other: the civil law and the common law, and the social evolution of one compared to the other. I understand that you see the Supreme Court of Canada as a unifying institution. However, there is a fine line between a unifying and an assimilating role.
Furthermore, you do not understand that a significant segment of the legal profession in this country does not have access to the Supreme Court. Must I remind you that this was the case for Quebeckers? Since Confederation, no Quebecker has been eligible for an appointment to the Supreme Court of Canada without being perfectly bilingual and proficient in the two languages. You consider that to be terrible, and I recognize that. You are now starting to understand what Canada was, what we would like it to be and what I myself recognized at one point in my life, which was that the dream I had of Canada when I was young would never be realized; and thus I preferred that we remain good friends and cooperate in a whole host of areas, with each one remaining sovereign.
We will move on to the vote on the clause.
(Clause 1 agreed to: yeas 6; nays 5)
The Chair: Shall the title carry?
It will be a recorded vote, Madam Clerk.
(Title agreed to: yeas 6; nays 5
The Chair: Shall the bill carry?
It will be a recorded vote.
(Bill agreed to: yeas 6; nays 5)
The Chair: Shall the chair report the bill to the House?
Do we need a recorded vote?
That takes care of Bill C-232.
Congratulations, Monsieur Godin.
Some hon. members: Hear, hear!
The Chair: We're going to move to the next item on the agenda, which is to hear our two additional witnesses on Bill C-36.
Could I have Don Head as well as Professor Allan Manson take their seats?
Mr. Don Head is here representing Correctional Service Canada. He's available to answer questions. We also have Professor Allan Manson from the Queen's University faculty of law.
Both of you know the drill, I think. If you have a presentation to make, you have up to ten minutes. Otherwise, we'll leave the floor open for questions from our members.
Mr. Head, did you have any presentation to make?
Good afternoon. I regret to say that I am not bilingual. I will therefore have to present my ideas and give my answers in English only.
I am here because I'm very concerned about this bill. It will place our sentencing regime, aside from those of countries that still execute people, among the harshest in the world and certainly in the western world. When I look at the minutes of the testimony, which I've read, particularly the testimony of the minister and those supporting the bill, I see no basis and no evidence for these amendments.
I see constant remarks saying, “This is what Canadians want.” I also see remarks about victims. I'm very respectful and sympathetic to victims, and I'll address that in a second, but I dispute the statement that this is what Canadians want. Just because you repeat something over and over doesn't make it true.
It's my view that if we look at the history of criminal law in Canada, the history of murder sentencing and what this Parliament did in 1975-76, what it did in 1997, and what this committee did in 1975-76, I would say Canadians respect the vitality of the human spirit. This legislation does not. This legislation wants to turn penitentiaries into ashcans of human wreckage.
I have studied this 15-year review process. I've written about it. I've been counsel in two cases and advised a number of lawyers, so I can talk to you if you have questions about how these processes work.
You've heard a lot of data. I'm not going to go through much of that again. I did prepare a submission. I had only a few days' notice about this hearing; I hope it's been translated. I'm not sure if it has, but you will have it.
The key is this. This process was created in this committee on a motion by a member named Stuart Leggatt in the spring of 1976. The original proposal for the 15-year review arose like this: the Solicitor General, who was Warren Allmand at the time, had his people do studies of Canada's experience as well as the international experience with the release of murderers. The data suggested around 10 to 15 years as the effective minimum ineligibility period.
Of course, if capital punishment was abolished, there would be a mandatory life imprisonment sentence. We're only talking about parole eligibility. The Canadian Association of Police Chiefs had taken the position that they supported retention, but if capital punishment was going to be abolished, they felt the minimum should be 25 years. It was in Warren Allmand's office that they came up with the idea of adopting 25 years while creating a window after 15 years. They took the view that the decision should be made by three judges.
It was in this committee that Stuart Leggatt said, “I was a practising lawyer; I trust juries.” This committee amended the bill to give the decision-making role to juries. These are Canadians, and if you look at the statistics from every province, while sometimes you see a number saying that 83% succeed, that's completely disingenuous and misleading, because in fact fewer than 19% of eligible prisoners apply. There is a process of self-selection.
I haven't done it for the past few years, and I regret that, but I used to travel to lifers' groups in the various penitentiaries around Kingston to explain this provision to prisoners. Afterward I would always talk to people about their individual cases. There is a process of self-selection. There are people who want their cases to remain quiet. They don't want to see them on the front pages of newspapers. There are people who have seen the rigours of these applications; there are people who are worried that an unsuccessful application may prejudice a future parole hearing. There are also people who just know they've not made much progress, and they're bad cases. That's why you see fewer than 19% applying.
At the end of the day, my calculations say 15.2% of eligible prisoners have received some relief. When I say “some” relief, I mean they're not made immediately eligible. A few are, but I've seen cases of people being made eligible when they served 17, 18, 19 years. The jury determines what the reduction will be.
In 1997 the provisions were amended to require a unanimous jury for reduction, but the actual reduction is left to eight out of the 12. It can be 19 or 20 years. They can set the time to whatever they want.
My point is this: is there a basis for this very harsh move? Ms. Jennings isn't here, but when I read the proceedings of the meeting on October 19, I noticed that she engaged in a debate with the minister about constitutionality. However, they were only talking about retroactivity, and on that point of debate the minister was right. He didn't cite it, but the case is R. v. Gamble. People in Canada are entitled to be sentenced, which includes having their parole eligibility determined, by the law as it stands at the time of the offence. But that's not the issue. The issue is the constitutionality of a murder regime set at a minimum of 25 years.
You'll see on page 3 of my submission that in 1990, when our Supreme Court constitutionalized the 25-year parole ineligibility in the Luxton case, it did so taking into account as part of its decision-making matrix the 15-year window and that possibility. If you remove that, the whole question of constitutionality is back on the table. As well, in that case there was no evidence about the deleterious effects of long-term confinement, either in general or on particular people or on groups of people. Next time there will be evidence.
So this is a bill that is constitutionally vulnerable, yet the minister comes here and tells you, “No, no, no”. I don't know that he even considered this issue. You certainly can't see it from the minutes.
Let me say a word about victims.
I accept that some of the families that have survived murder would support this legislation. It certainly wasn't the case when I was a practising lawyer, but now victims do participate, if they choose, in the criminal process. They can participate at every level of the 15-year process if they choose. We've recognized that providing these participatory opportunities to victims is an important and valuable aspect of the criminal justice system. One must respect and have sympathy for the tragic losses and grief that victims have suffered.
Yet we all experience grief in different ways, don't we? There will be myriad responses. While one needs to listen to the voice of victims, sound penal policy must be based on a set of values grounded in an experienced and reasoned judgment. It was over 900 years ago that we took penal policy out of the hands of victims. In this country it's now in the hands of parliamentarians. We expect them to have a full debate, ask hard questions, and produce rational, fair penal policy based on evidence, not emotion.
I have addressed in my submission what I call the procedural aspects of Bill : the 90-day window, the five-year delay. Those would relate to those people currently in jail who have the opportunity of the 15-year review. Again, there's no evidence as to why these are necessary; it's pure harshness for harshness' sake.
The 90-day window is completely unrealistic as well. There will be mountains of files that lawyers need to go through. Plus, I don't know if anyone's ever told you this, but when prisoners are eligible for 15-year review, the juries are picked in the place where the offence was committed. Not many prisoners....
I waited. I would appreciate it if you wait as well. Thank you.
It will take me a minute to figure out where I was.
I was speaking of the 90-day window and I was saying that prisoners are not necessarily confined in the province where the case originated. They therefore have to apply to be transferred and moved back to their original province to retain a lawyer and to commence this application. To say you have 90 days from the 15-year moment is unrealistic and is just pure harshness.
I'm happy to answer questions. I'm sure you have questions for Mr. Head, who has some statistics.
My point is that you've not yet been given any evidence that suggests this is what Canadian criminal law policy should support. All you've been told is that this is what Canadians want. I doubt that.
The current mechanism is working. Juries are making the decisions. They are distinguishing between worthy cases and unworthy cases in every province. Judges at the judicial screening are making the distinction. In my submission I give a number of cases just in the past two years in which judges have said, “This case doesn't meet the test. It's not going to a jury.”
The current mechanism is working, and it reflects the fundamental Canadian view that people can be redeemed. It should be maintained.
That's too bad because, for once, they were brief, succinct and highly convincing. Even at recent meetings, I have still been hesitating, because I consider murder to be an odious crime. Capital murder is still a wilful homicide, planned and executed in cold blood; it is the worst of crimes. Genocide and the like are even worse. Having read the brief submitted by the Canadian Bar Association, I must say I am firmly convinced that we should not change the legislation. I may not have to read what you have written on the subject.
If you have been following our proceedings, you may have noted that I was considerably moved by the testimony of Ms. Thérèse McCuaig, who recounted the circumstances surrounding another of these odious, heinous crimes. It was the worst crime committed by the worst of offenders.
As a member of Parliament, we often visit seniors residences. I always tell them—and they seem to appreciate this—that I am discovering, as I grow older, that there is one faculty that does not erode over time, and it is a person's sensitivity. The proper balance involves not only reason, but also a form of sensitivity. Indeed, I was very moved by her testimony.
I was wondering if I should change my view, but the representations made by the Canadian Bar Association convinced me. There is a very clear response that could be given to Ms. McCuaig. I re-read subsection 745.63(6) of the Criminal Code, which sets the timeframe and answers one of the arguments that also greatly impressed us, which was that victims could be invited to attend proceedings every two years. That subsection reads as follows:
||(6) If the applicant’s number of years of imprisonment without eligibility for parole is not reduced, the jury may
|| (a) set a time, not earlier than two years after the date of the determination or conclusion under subsection (4), at or after which another application may be made by the applicant under subsection 745.6(1); or
||(b) decide that the applicant may not make another application under that subsection.
There is no doubt in my mind… and I, too, have argued many a case in front of a jury. I know of no jury that would have arrived at a similar decision in the case involving the heinous crime that Ms. McCuaig described. No jury would have agreed that he be present.
I fully agree with what you say. If the Minister is claiming that the Canadian public wants this law to be changed, it is important that he realize that we are talking about a decision made by 12 citizens that must be unanimous. How could anyone think that there would not be at least some members of that jury who could be considered representative of the Canadian population? I take comfort in the idea that this law was developed with great care—“carefully designed”, as the Supreme Court said, with a view to attaining the intended objective.
I wanted to say that we were not insensitive—quite the contrary—to the testimony given by victims who appeared before us. I sympathize, within the full etymological meaning of the word “sympathy”, which means to “suffer with”.