:
I call the meeting to order. This is meeting number 33 of the Standing Committee on Justice and Human Rights. Today is Tuesday, November 2, 2010.
You have before you the agenda for today. There are a number of items we're dealing with.
First of all, we're going to begin our review of Bill , referring to the faint hope clause.
Second, we will move to consideration of Bill
You also have before you the steering report. We met earlier today, and the clerk has been so kind as to put together the report.
Those of you who were present, Mr. Comartin, Monsieur Ménard, and Mr. Murphy, I'm assuming the report reflects—
:
All right. I'll put the question on the report.
(Motion agreed to)
The Chair: The fourth report is adopted.
Now, back to Bill . We have with us our Minister of Justice and Attorney General for Canada, the Honourable Rob Nicholson. Welcome back, Minister.
Accompanying him are senior officials from the Department of Justice. We again have Ms. Catherine Kane, director general and senior general counsel, as well as John Giokas, counsel. They're both from the criminal law policy section.
Minister, you know the drill. You have ten minutes to present on Bill , and then we'll move to questions from our members.
:
Thank you very much, Mr. Chair. I am pleased to have the opportunity once again to meet with the members of the committee to discuss legislation providing for serious time for the most serious crime.
[English]
I appeared before this committee just over a year ago to discuss these amendments. At that time they originated in the bill known as Bill , but since then this Criminal Code package was re-introduced in virtually identical form in the other place as Bill S-6 in June 2010. It was passed by the Senate without amendment and is now before you for examination.
Let me begin by recapping the current state of the law with respect to murder. Section 745 of the Criminal Code provides that convictions of first- and second-degree murder carry mandatory terms of life imprisonment, with mandatory periods of parole ineligibility. For first-degree murder that period is 25 years. It's also 25 years for anyone convicted of second-degree murder who was previously convicted of either first- or second-degree murder under domestic law or an intentional killing under the Crimes Against Humanity and War Crimes Act. For all other second-degree murders, an offender must serve a minimum of ten years in custody. However, a judge may increase this to a maximum of 25 years, in light of the offender's character, nature, or circumstances of the crime, and any jury recommendation.
The parole ineligibility period set by the judge is part of a sentence that is read out in open court. Given the serious nature of murder, I think Canadians would agree that a period of up to 25 years of custody prior to being able to apply for parole is reasonable. I would assert that the 25-year parole ineligibility could and should be longer, especially in the cases of multiple murderers. As you know, that is another issue that our government has addressed through Bill , a piece of legislation you will be asked to consider very shortly.
The core of the issue before us today is the so-called faint hope clause and its related provisions. It allows a murderer to apply for early parole after serving only 15 years, despite what the Criminal Code stipulates in section 745 and despite whatever longer period of time a judge may have imposed. We find this unacceptable. We were elected on a promise to restrict the availability of faint hope for offenders who are already incarcerated and to eliminate it completely for future offenders. Bill S-6, the bill before you, keeps both of those promises.
I would like to concentrate for a moment on the context in which these proposed criminal amendments have arisen. I believe it's necessary to clarify exactly how and why this bill was drafted and what it sets out to achieve. Since the first applications began to come forward in the late 1980s, the faint hope regime has been a source of concern among Canadians. They are disturbed and confused by a process that seems to allow murderers to circumvent the sentence imposed on them in open court after a fair and public trial. They see it as an affront to truth in sentencing, and they argue that a life sentence of imprisonment ought to mean just that.
Many refer to the faint hope regime as the loophole for lifers that can undermine the protection of society, because the system affords leniency to murderers, whose crimes demand severe punishment. Even worse, and perhaps most importantly, victims have told me about the additional trauma inflicted on their families and loved ones. They live in constant dread that the killer who robbed them of their loved one may one day bring forward a faint hope application. This review process forces victims to relive the details of the horrible crimes they have suffered again and again.
We want to spare these victims the anguish of parole eligibility hearings. We believe the justice system must not put those rights of individuals ahead of those of victims and law-abiding Canadians. The measures proposed in Bill S-6 are in direct response to these concerns and aim to accomplish three goals.
First is to restore the truth in sentencing by ensuring the sentence pronounced on a convicted murderer in open court is the sentence that is served. Second is to keep those convicted of the most serious crimes in prison for lengthier periods of time commensurate with the gravity of their crimes. Third is to help ensure that the families and loved ones of murder victims are not themselves revictimized at the whim of a convicted murderer who decides to bring forward an application for early parole that forces them to relive the pain of their original loss.
These are reasonable and compassionate goals, and I hope committee members would keep them in mind as they examine Bill S-6, because Bill S-6 will bar everyone who commits murder in the future from applying for faint hope. Thus, all those who committed these offences after Bill S-6 comes into force will no longer be able to apply for a parole eligibility date earlier than that imposed by the judge at the time of sentencing.
As for those who presently have the right to apply for faint hope, Bill S-6 will tighten up the application procedure to screen out applications that are unlikely to succeed and to restrict when and how often an offender may apply. This tighter procedure will apply to those who commit offences prior to the coming into force date. This means that those who are currently serving a life sentence in prison, those who have been convicted of murder but have not yet been sentenced, and those charged with a murder that occurred prior to the coming into force date and who are convicted--all will be subject to this new, stricter procedure.
I would like to briefly describe how two of the three stages of the current procedure would change. At the first stage of the current process, an applicant must convince a judge in the province where the conviction occurred that there is “a reasonable prospect that the application will succeed”. The court describes this threshold as being “relatively low”.
Under Bill S-6, an applicant would have to prove that the application has a substantial likelihood of success. This significantly higher standard will screen out flawed applications at the outset. It would also impose new time limits. Currently, the minimum period an applicant has to wait to reapply to a judge is two years after the initial rejection. Under this bill, an applicant would have to wait at least five years. The change from two to five years will create more certainty for the families of victims about when a faint hope hearing will occur and limit the number of applications that can be made, thereby reducing the trauma these hearings inflict upon victims.
Presently, an offender can apply for faint hope at any point after serving 15 years. Bill S-6 would change this by establishing a 90-day application window. In short, the applicants will have to apply within three months of becoming eligible, failing which they must wait a further five years, and then they will have again three months to apply. This proposed change will spare victims' families and loved ones from living in dread, uncertain of when or if a convicted killer will revive their suffering by seeking early parole.
Someone who succeeds at the second stage of the application may then go directly to the parole board for early parole. Bill S-6 doesn't change that. Colleagues, let me be clear: Bill S-6 does not affect the normal parole application process. There is nothing in this bill that in any way denies convicted murderers the chance to rehabilitate themselves or to apply for parole in the normal course once the parole ineligibility period imposed at the time of sentencing has expired. The bill simply requires offenders to serve their full sentence for the reasons I have outlined.
As I've said many times before, this government is committed to restoring balance in Canada's criminal justice system by standing up for the interests of law-abiding citizens and ensuring that the families and loved ones and victims are not themselves made victims by the justice system.
Mr. Chair, this is a fair, balanced, and reasonable reform of a controversial area of the law, and I urge all members of this committee to support this bill and hasten its passage into law. Thank you very much.
Another question I have has to do with the issue of the delay.
Clearly, we'll be hearing from witnesses, but having reviewed some of the transcripts of the Senate committee, some of the witnesses talked about the delay of 90 days, in particular when it's the first application. If the bill is adopted, the provision you have for an application of 90 days after the coming into force of Bill S-6...it could be difficult for some inmates to meet the delay, and not through any dilatory activities on their part, but simply because in order to make the application, the individual has to make the application in the jurisdiction where the crime occurred, and that individual, that inmate, may be incarcerated three provinces away.
So would there be any openness on the part of the government to extend the delay in those kinds of circumstances, or at least allow a judge the discretion to hear grounds for extending a delay if an inmate is unable to meet the 90-day delay?
:
I'll thank you anyway, Mr. Chair, and you, Mr. Minister, for being here, along with the officials.
Let me just pursue this. Your last answer, of course, is accurate, that at the time the jury convicts the person and the sentence is imposed, they're looking at the 25 years as the penalty. Actually, it's life, so it's much longer than that.
I don't know if you know, Mr. Minister, that the length of time the average convicted murderer in Canada spends in custody is 28.5 years. It's not 15 or even 25, and in fact—
But the other point with regard to the juries it that it's the jury in that same community, if it gets that far, that is going to make the decision. It's the same community and judges from the same area who are going to be trying the issue of whether the person is going to be able to apply for early release, because of course they don't all get early release when they go on to the parole board.
In fact, there are cases that we received from Mr. Head—which this committee didn't hear about last time because one of your colleagues held up this material and it never came before committee—showing that out of the 144 cases granted the ability to apply for parole by juries, only 134 of them were in fact granted parole.
But it's the jury that makes the decision.
Minister, thank you to you and your officials for being here today.
I would like to say at the outset that for many years in my community people have said to me that they don't understand why criminals, especially people who commit the most heinous of crimes, murder, don't actually serve the sentences the courts impose upon them. Sir, in my view, people need to understand and have faith in our criminal justice system, and one way of doing that is demonstrating to them that criminals actually do serve the sentences the courts impose upon them. So I want to thank you for bringing this legislation forward.
Having said that, you've mentioned the families of victims, loved ones, and friends of victims. I wonder if you could tell us what they have told you in regard to the current process of parole eligibility.
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Well, it's a very good point. When I have met with them their stories are similar in many ways. They start thinking about this prior to the 15 years. Then they're waiting. They don't know exactly when or even if the application is being made. Some of them have told me stories that in their heart of hearts they knew the guy wasn't going to get out anyway, but he made the application, in their opinion, to increase the pain these people feel. It's hard to believe that there would be individuals like that, but I have to accept what they tell me, and that is that some of these individuals put forward the application with no reasonable hope of having the matter successfully heard. This victimization happens again and again, and it continues on all the way through the process.
Even the ones I spoke with and said this is not retroactive, in the sense that we are not getting rid of the faint hope clause for the individual who has caused you this pain.... I have been impressed by the individuals—Sharon Rosenfeldt is a good example—who have come forward and said they want to make it a little easier, if they can, for people in the future.
As I said to Mr. Comartin, you can never eliminate the pain for what some of these individuals inflict on law-abiding, innocent Canadians. You can't get rid of that, but to the extent we can minimize that, I was impressed by people like her who would be prepared to make it better for people in the future. It's very impressive. And again, this is what this bill will accomplish.
:
Good afternoon, Mr. Minister.
My question is quite simple. In connection with the bill that you want us to pass as quickly as possible—it is a fine bill, I have already read it—I am going to tell you about a case we had in Quebec. And I would like you to tell me what the difference is.
In 1987, a man by the name of Denis Lortie killed three colleagues of the Parti Québécois. He was even planning on killing René Lévesque. He killed three people and injured seven. The judge and the jury gave him a life sentence. In 1995, exactly eight years later, he was free, completely free. He even works in a convenience store in Cantley, in the Outaouais. Three people were killed and seven are disabled for life. He was sentenced to life imprisonment.
What will the new bill and the one you talked about, Bill , bring to the table? Could you tell me that? It is extremely serious. This man killed three people and even wanted to kill Parti Québécois members. And now, he is free. What will change under the new bill that we are studying today?
I have good news and bad news for you. The good news is that this system looks after the victims far more than you think. I have already worked with cases of individuals who submitted applications. Right now, 4,000 prisoners are serving life sentences without possibility of parole for 25 years. Out of that number, only 265 prisoners filed an application and 140 were able to go beyond the first stage. So, it is clear that, by taking a case, a Superior Court judge is concerned about the victims. No one can come before a judge without being aware of the harm they have caused and of the victims they have left behind as a result of the murder.
That being the case, I tried to find the figures, but there are none. Do you have the numbers to show us that even one of the criminals who were released after 25 years in prison reoffended and committed another murder?
The answer is “no”.
:
Thank you very much, Mr. Chair.
Thank you, Minister, for appearing before us today to discuss this important bill.
Sometimes when I listen to opponents of bills like this, I get the impression that they just don't get it in terms of understanding that we're trying to look at things more from the perspective of victims than has previously been the case.
As a lawyer yourself and a student of the law, you'll know that historically, of course, our criminal justice system began over 1,000 years ago by way of the crown intervening so that victims didn't retaliate and take the law into their own hands. Instead, they were left with a sense of justice in the results the crown imposed.
I can't imagine what it must be like for a victim whose loved one has been murdered to go to court and hear the crown and the judge and everyone else say that the sentence is 25 years with no parole, and then find out afterwards that, oops, we were just fooling you; it's really 15 years with no parole. It must be like a kick in the gut, in my view. I can't imagine how unfair, how misleading, and how unjust that must seem to victims, and how cheated they must feel. I think the primary good thing I see in this bill is that this is not going to happen.
I know that this is a piece of law that can't apply retroactively. There are people who have committed crimes who are still, under this bill, going to get the benefit of the faint hope clause, because the crime happened before this bill was introduced.
I wonder if you could just tell us a little more about the improvements in the system for victims, even in cases where the crimes were committed before this bill was introduced.
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I think one of the very good things about this is that it adds some certainty for the victims. Rather than have a situation where the 15 years--and this is where Mr. Lemay and I agree. These people are very prepared for this, believe me. They are on top of this; they know when this matter could possibly be brought forward.
But an application doesn't have to be made at 15. It could be made at 15 and a half years, six months after that. It could be nine months; it could be after 16 years that they could make the application. There are no requirements for them at any particular time. So yes, they have to continue to be prepared at any time.
What this bill will do is say, look, you've got 15 years--and I was talking with one of my colleagues over there. They've got 15 years to prepare for this, to get their act turned around, and they've got a three-month window then to make the application. If they miss that, if they decide their situation is not one that should be before the courts, or they realize themselves that they have not been rehabilitated or they might be a danger to the public and for whatever reason decide not to make that application, they'll still have the opportunity at the 20th anniversary of their crime. Again, they'll have another three-month opportunity to do that.
So it provides some certainty. Again, I think this will be one of those things that will be welcomed by victims. But I thank you for your comments.
:
Thank you, Mr. Chair. Thank you to the witnesses for your attendance here today.
I certainly support this legislation, but I do have a couple of technical questions that you hopefully can help me with.
I'm having a difficult time wrapping my mind around how this legislation interacts with the International Transfer of Offenders Act. When my friend, Mr. Comartin, was questioning the minister, he cited a number of countries that have shorter average periods of incarceration for what Canadians call first-degree murder—and certainly even shorter than 15 years. I see in New Zealand it's 11 years; in Scotland, 11.2 years; and in Sweden, 12 years, and it goes on.
What would happen if an individual, a Canadian, were successful in applying to serve a sentence in Canada after being found guilty of what we would call first-degree murder in a foreign jurisdiction with a minimum sentence less than prescribed by the Canadian Criminal Code?
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If the minimal sentence is less than prescribed by the Criminal Code, we go by the Criminal Code.
But we're talking here about a life sentence. There are two parts of the sentence. There's the actual life sentence and then the period of parole and eligibility that form part of the sentence.
The International Transfer of Offenders Act, as it reads now, gives transferred offenders the right to apply for parole after 15 years; they don't have to go through the faint hope process. The reason is that the faint hope process requires the application to be made in the jurisdiction where the murder occurred. In the case of a foreign offence or somebody who's been convicted of a crime abroad, that's impossible.
So the International Transfer of Offenders Act gives them a break and lets them go straight to the parole board. If Bill becomes law, those 15 years will change to 25 years, so they will serve 25 years without eligibility for parole, instead of the 15 years currently in the International Transfer of Offenders Act.
I want to go back to much of the questioning that has been put to our witnesses from the department here. Of course, there has been a lot of concentration on recidivism, a lot of concentration on what the accused.... But the minister was rather specific, I believe, and you can tell me if I'm wrong.
This is not about the accused. This is about the revictimization of the families and loved ones, and in many cases the community and the neighbourhood in which the murders took place. I think it needs to be said that there is no faint hope for the dead person or, in some cases, the dead persons. They don't get a chance to be reprieved from the grave and be with their loved ones again. They don't get a chance to have all of the care of the community to make them a better person. They're dead. Unwillingly, they had their life taken from them.
It's nice to pat the guy or girl who did it to them. This still opens the door for the person who sees the terrible thing they've done. Tell me if I'm wrong. If they have taken part, in prison, in all the programs to make them a better person, it does give them an opportunity to change their life on the outside of a prison instead of on the inside of a casket. Would you just confirm that this does not close the door to that?
:
I'm sorry. I forgot about the translation.
In any event, let me summarize by saying there's a great long legal phrase, and what I'd like us to do before we're finished with this bill is to remember two things. First of all, we're not talking about the victim's family, because the victim's family are victims. They are suffering the loss of a loved one in a murder, and they are consumed by grief. Their emotions are upset and roiled, and they are not lawyers.
I maintain that having two contradictory statements placed before them by the judge is an inadequate way to communicate to them that the accused is not receiving 25 years without parole.
In any event, the other thing I'd like to ask about is the idea that faint hope reduces problems for prison guards. I wonder if you or the department have any statistics or any evidence that indicates there is a difference in the injuries or deaths to prison guards caused by persons who have faint hope for parole and those who have not.
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On your other point with respect to the notice that the judge reads out in section 745.01, that is a lot for a victim to absorb. As some of the committee members may recall, those amendments were included in a bill in 1999 that made a lot of victim-related amendments. Among those, the best route at the time to deal with some of the concerns about faint hope was to make sure that although it does seem a very formal way to provide the notice, there was at least some way for the record to indicate and for the victim to be able to access the information that it would be possible for the offender to bring the application after 15 years.
Other amendments were also made at the time to make it clear that the victim could have input at that stage and could also have input at the actual faint hope hearing, and of course victims also have input at the parole stage if it proceeds to that point.
From a program standpoint, we made other changes so that victims have ability to get financial assistance when they have to travel to faint hope hearings, and also when they have to travel to parole hearings. Over the years, many improvements have been made so that victims are supported in those processes, but it's been an evolutionary process to get victims the support they need for these difficult hearings. Although that seems awkward, it was a very necessary first step to start to make some progress to address victims' needs.
We can probably do better, and we do in the literature that we provide to victims now.
:
Just briefly, there is something we should probably do on every bill that talks about changing the amount of time people serve. I'm struck that we had debates here today, really, about whether it's the victims' code or the Criminal Code--it's the Criminal Code--and whether denunciation is more important than rehabilitation. If we would all take a good look at section 718, we all know it's a balancing act. There are all the principles of sentencing at play in this debate, which has been good.
My question is this. It seems that the impact of this bill will be longer periods of incarceration for a group, a subset, of the prison population. Perhaps this could be deferred to Corrections, too, but is there any way of calculating what that might cost? If it's not dollars, in terms of man years or person years, is there any way of calculating that based on the past experience of applications that were successful, etc.?
You don't have to answer that now, but if there were an answer or an analysis, we'd appreciate getting it through the clerk.
:
Assuming that Bill is passed into law, there will be no implications for 15 years, because that will be the length of time that people will have to wait...well, 16 years, till the anniversary of their 15th year.
After that it's difficult to predict. We have been unable to get accurate predictions because there are a number of other variables at work: a declining murder rate, an aging prison population. So we don't know, 15, 20, 25 years down the road, what the population in the prisons will be.
This is a question we've been asked many times, and that's the best response we can come up with right now. I'd suggest, if corrections officials come, that they be asked if they have better estimates.
I want to thank our witnesses, Mr. Giokas as well as Ms. Kane, for spending their time with us this afternoon.
We are now going to move to another bill, Bill
Rather than suspending, I would ask you to focus your attention on Bill , clause by clause.
As a reminder to everybody, we have scheduled a delegation from Namibia for an hour after this meeting. Those of you who can stay, please stay. It's a good opportunity to exchange information on our relative and respective justice systems.
How do you want to proceed from here? We have the bill in front of us.
Mr. Comartin.
:
Thank you, Chair, and I appreciate being able to be here today.
With regard to the issue of definitions, I think if you look at the Canadian Human Rights Act, you will find that most of the prohibited grounds of discrimination aren't defined in the act, and that's intentional. They're intended to be living definitions that look to common usage and to other jurisprudence. That's why there aren't per se definitions included in this private member's bill.
For the interest of Mr. Lee and others, there are a number of definitions of gender identity and gender expression. One that I use more often than not is that gender identity has been defined as an individual's self-conception as male or female or both or neither, as distinguished from one's birth-assigned sex. The Yogyakarta Principles, which is an international document, a United Nations document, that's well known in human rights circles, defines gender identity as referring to:
each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
The definition I generally use for gender expression is that gender expression refers to how a person's gender identity is communicated to others through emphasizing, de-emphasizing, or changing behaviour, dress, speech and/or mannerisms.