I'm Joe Wamback.
Mr. Chair and members of the committee, I want to thank you for for giving me the opportunity to testify today.
I am the chair and founder of the Canadian Crime Victim Foundation, which has been in existence since the year 2000. We have almost two decades of experience in dealing with victims of extreme violence from coast to coast, from Victoria to St. John's.
I've also partnered with the health sciences psychology department at York University so that we can create a greater understanding of psychopathy and extreme violence among individuals in Canada and the resulting trauma to victims and their families. We also sponsor psychological counselling for victims of extreme violence throughout the country.
I am here today in support of Bill . I believe it is a win-win situation for all involved. The bill maintains the judicial independence that we all seek in Canadian society. Secondly, it prevents the continued revictimization of those who have suffered so much through acts of horrific crime in Canada.
We're not dealing with a large constituency. We're dealing with a handful of individuals who have created such devastation in Canadians' lives that we have to find a better way of dealing with them than by revictimizing those who have to attend Parole Board hearings time and time again.
My first introduction to this type of situation was Clifford Olson. We are now friends with 11 family members of victims of Clifford Olson. The revictimization that those individuals had to suffer and live through during those parole hearings—Clifford Olson was a master at calling for these hearings almost every year—was just unprecedented.
Throughout the 20-year history that we have been working with victims of crime and from the 20 years of research, we've specifically seen increases in disease. Cancer is four times the national average in that particular constituency, as well as heart disease and mental illness. The revictimization that occurs through continued parole hearings takes it toll on the lives of not only the direct victims but also on the victims' families. It is a large circle, and it gets larger and larger as time goes on. For example, when my son was hurt, my grandmother passed away. She could not deal with the injuries my son incurred.
Typically when you're debating and deliberating on criminal justice changes, measures and policies, including parole, for the most part those debates have ignored one vitally important variable, which is the victims and their families. I believe the victims' lives have value that is of equal value to anybody else's in this country. They should not be ignored when we are concerning ourselves with any factor in criminal justice reform. Our obligation here, as Canadians, is harm reduction. I'm convinced that Bill is a step in the right direction.
I've looked at the Parliamentary Budget Officer's report, which indicates that we're dealing with nine to 10 individuals a year, but I don't know where he got the number from statistically. If they were kept incarcerated for another year, the cost is approximately $1 million per incarcerated individual. That was the end of the report.
Unfortunately, the analysis—either intentionally or unintentionally—did not consider the cost to society of allowing earlier parole applications for those most violent individuals who are targeted by Bill . It deals singularly and specifically with the increased length of incarceration.
It does not consider the cost of repeat offender parole programs, which police-based statistics tell us are in the tens of millions of dollars annually. It does not consider the financial impact of social services for supporting the victims. I have witnessed first-hand the agonizing grief and revictimization forced upon victims, families and even their communities at large when they must relive the horrific details of the most heinous crimes committed against their loved ones.
Trials, convictions and sentencing are not cathartic for survivors. Grief is a never-ending journey, and parole hearings extend and reignite that grieving process. Many victims, survivors, friends and family members are unable to work for months before a hearing. After the hearing, they are terribly affected by having to relive those experiences. Some lose their jobs. They can't participate. They can't continue to become participating members in Canadian society. They can't pay their taxes or any other societal obligations, and many rely on the social safety nets we have in Canada today. All these have costs that are associated with revictimization.
My research also demonstrates that divorce is the inevitable consequence of a child homicide, which creates incredible financial and societal inequities for siblings of homicide victims. Some become a permanent burden on Canadian society. Medical complications are rampant, and revictimization is rampant, equally staggering and profound.
In 2016, Alberta justice minister Kathleen Ganley stated that consecutive parole ineligibilities can be a “useful tool” as a signal to criminals that multiple crimes may lead to a longer sentence. She stated, “It can potentially have a beneficial effect in terms of signalling to people who are doing these things that it's not a good idea.” These are direct quotes, by the way. “It can have a sort of deterrent effect. That being said, obviously it's only intended to be used in certain circumstances.”
She is referring to the most violent and horrific of crimes. We don't see a lot of those in Canada, fortunately, but they are becoming more frequent. I've just attended a conference in Toronto on mass homicides. People in this country and around the world are dealing with this, because it's becoming more and more prevalent as society moves forward. We've had two of them in Toronto just recently. One was the van attack on Yonge Street. The other one was the shooting on Danforth Avenue.
The victimization that occurs, and the cost of that victimization, cannot be calculated. It's the same thing with parole hearings. When victims have to attend parole hearings and face the individuals who have harmed their child or loved ones, the effects are devastating.
My hope is that you will give great consideration to Bill to allow the judiciary to introduce extended parole ineligibilities for the worst of the worst.
I want to thank you for your time.
Thank you, Mr. Chair and honourable members. We appreciate this opportunity to appear to express our views on Bill .
For those who are not familiar with the Canadian Criminal Justice Association, let me take a minute to tell you that we are a voluntary sector organization. We were originally founded in 1919 and are celebrating our 100th anniversary this year, so we've been around for a little while.
We have approximately 700 members across the country and we represent all aspects of the criminal justice system: lawyers, academics, the police community, correctional officers and victim support officers. We are one of the few voluntary sector organizations working in the criminal justice field—and working to improve it—that attempts to accommodate all perspectives on the criminal justice system. I think that makes our views stronger.
At any rate, with respect to the matter at hand today and with the greatest respect to victims—including the families of those who have suffered tragic events like the ones contemplated by the bill—I must say that we are opposed to this bill.
In our criminal justice system, all persons convicted of murder are sentenced to life imprisonment. This means that anyone convicted of murder, whether or not they are ever released on parole, will be under the control and supervision of correctional authorities for the remainder of their natural lives. There is no warrant expiry for an offender serving a life sentence.
For first degree murder, as you know, the mandatory 25 years specified is not the sentence imposed by our courts but the period of parole ineligibility that the offender must serve before being considered for parole. After that time, the decision on whether or not to gradually release and reintegrate the offender into society is made by the Parole Board.
It is our view that if we don't have confidence in the parole system's ability to get this decision right, we should look at improving the parole system for the sake of all parole decisions, rather than look at amending the sentence for first degree murder, as is proposed in Bill .
If Parliament does amend the law for this type of case, we could easily be caught in an endless cycle of amending the law to further increase the parole ineligibility period to respond to yet another case presenting even more horrific facts. Regrettably, it is always possible to imagine a more horrific fact pattern. I won't delay you with details, but I suggest as an example that if you add to the circumstances contemplated in this bill, torture or extreme brutality are not necessarily covered. Do we keep increasing the parole ineligibility period? In the case of criminal harassment, an intentional killing committed in the context of criminal harassment is not covered by this bill. If this bill is passed, will we see on the order paper more bills suggesting we increase it to 50 years?
Thank you very much for inviting me to speak about this rather important piece of legislation.
I bring to you today the perspective of a criminal lawyer as a practitioner.
So that you know who I am and where I'm coming from in my testimony and give it the appropriate weight, I will tell you that I'm certified as a specialist in criminal law by the Law Society of Ontario. My practice is exclusively in criminal and quasi-criminal law. My firm has an appeal division, and prior to coming today, I consulted with them rather extensively.
Writ small, what that means is that I'm the trial lawyer who will be dealing with this legislation if it passes. What I bring to you is, I hope, both something of the 30,000-foot approach, but it's also about what happens when I see this in the latest Criminal Code.
I'll give you a précis of what I'm going to say: There are significant problems with this legislation.
First I should say that despite the flaws in the proposed bill, the goal is laudable. Mr. Bezan has brought forth this amendment to the Criminal Code for the purpose of alleviating the stress and suffering of the families of victims. That is a noble goal and one that is supported by all stakeholders in the criminal justice system, both Crown and defence. Nobody wants to see victims suffer or suffer again and again.
However, the question is how to do that. It is critical to remember that this bill is not designed to be punitive, but if it passes and is challenged, that is going to be an issue in the inevitable charter challenge.
Mr. Bezan has been quite clear: This legislation is designed to target a small group of individuals who have committed such egregious crimes that they statistically and realistically are not going to be paroled. They are the Clifford Olsons of the world. By narrowing the legislation in this way, Mr. Bezan seeks to ensure that the benefits of the bill, such as preventing families from having to attend numerous parole hearings, are not truly in competition with the deleterious effects of preventing release for persons who would otherwise be released. In other words, the people targeted by this bill are not getting out. That is the premise upon which this bill is proposed.
Mr. Bezan is not seeking to balance freedom against victims' rights. This is important, because if the legislation were designed to be punitive, it would run into a whole new series of challenges under section 12 of the charter, and these are challenges that it would likely not survive.
However, even if we accept that this is not a punitive bill and is strictly a procedural bill to alleviate the suffering of the families of victims, this is the wrong forum for it.
My first argument is that the Criminal Code is not where this problem should be remedied or where this goal should be set out.
The Corrections and Conditional Release Act, CCRA, is the statute that governs the parole process. Modifying it to change the frequency of parole hearings for this narrow group is much easier than modifying the Criminal Code, and it would not trigger any of the problems that I will be discussing.
Further, modifying the CCRA so that the families of victims can have their evidence recorded and played at subsequent parole hearings would also alleviate the pain of providing evidence at each parole hearing.
One or the other or both of these modifications to the CCRA accomplish the goal of alleviating their stress. It would not complicate trial matters. It would not lead to an infringement of the charter. It would also receive little or no push-back from any constituency or stakeholder.
My second argument is that Bill , as it's written now, is likely unconstitutional for the following reason: The text of Bill reads, “In respect of a person”—and I underline the following—“who has been convicted, in respect of the same victim and the same event or series of events....”
What you need to understand is that with regard to murder, there is a provision under section 231 of the Criminal Code that allows second degree murder, which is all murders, to be elevated for sentencing purposes and classification purposes to first degree murder.
The language of this deemed elevation is subsection 231(5):
Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person
—and I underline this part—
while committing or attempting to commit an offence under one of the following
What are the differences?
In Bill , a conviction for one of the offences is required. In section 231, which is already the law and has already passed charter scrutiny, no conviction is required. What does this mean practically?
If the trier—the jury, usually—based on the charge of the judge finds that a sexual assault occurred as part of the same series of events but not “while committing”, a second degree murder would not be elevated to first degree murder. This is the trickiness, right?
If it's part of the same series of events but it's not “while committing”—there's a temporal break, or a location break, or the jury's left in doubt in respect of those differences of wording—you're not going to trigger the elevation to first degree murder, but you might be triggering Bill . What that means is a charter challenge, because you're punishing a second degree murder more harshly than a first degree murder. The jury may acquit a deemed first degree murder under section 231 and the offence would still be captured.
In other words, the series of events is not as clear as “while committing”, and that is likely a charter violation.
I know from reading the Debates that the member proposing this legislation believes that only a very few people would be captured. Respectfully, he's wrong. What will happen is that the trial Crowns, the people who are tasked with implementing the laws you pass, will have to start charging sexual assault and forcible confinement on the indictment, so an indictment that used to have a single count of murder—very clean, comparatively easy—will now have to have a minimum of three counts: the murder, the underlying sexual offence and the underlying confinement offence.
Presently when those facts are present but not necessarily charged, the Crown can charge first degree and rely on the facts as proven of the forcible confinement and/or sexual assault to elevate the murder to first degree, but because Bill requires a conviction, the Crown would now have to charge those offences. If the Crown did not charge those additional offences, the victims' rights advocacy groups would quite properly take the Crown to task for not taking the steps to trigger the most onerous sentence possible.
Thus, when the Crown does charge those additional offences, you would have a judge charging a jury that they might find that the sexual assault occurred, but to what standard? If charged, it would have to be beyond a reasonable doubt. There would be a necessarily complex and full charge on the elements of that offence, and then what happens if the jury is left in reasonable doubt about whether or not the sexual assault occurred? What happens to the underlying murder elevation? Would there still be a first degree murder conviction if there's a reasonable doubt about the separate charge of sexual assault on the indictment? We don't go into the jury rooms. We don't know.
What we do know is that the more complicated you make the indictment, the more complicated you make the judge's charge to the jury. The more complicated you make the judge's charge to the jury, the more likely an appeal.
Also, if we're talking about alleviating the stress on the families of the victims, imagine the year that it takes to get to the prelim, and then testimony on the prelim, and then the year it takes to get to trial, and then the testimony on the trial—and now there's an appeal. There's an appeal because this is not clear.
What if the appeal is successful? That's another year for the appeal, and then there's a retrial, which is another year. Now we're talking about four or five years not of potential parole hearings but of annual testimony, not of having the option of reliving the nightmare of being a family member to a victim as captured here, but of actually having to testify and actually having to hear the evidence of the forensic officers and the witnesses and reliving the traumatic effects of the trial.
This is a mess, because it's treating potential second degree murder charges like firsts and adding in a number of complications. It's ripe for challenges.
My third argument is a similar legal argument. It is the question of subsumed offences.
Forcible confinement is often an element of the offences of both murder and sexual assault, so where a choking is part of the sexual assault, it would now be charged separately, and that necessarily means another and more complicated charge.
The people who were contemplated and mentioned in the debates would not be captured by this, because they were not charged separately. What you will have is not the few people intended, but necessarily many more people charged on much more complicated indictments, leading to many more appeals, and that is not the goal.
I urge the committee to reject this bill and invite modification to the CCRA to accomplish the same goal.
Thank you, Mr. Chair.