Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 33 - Evidence


OTTAWA, Thursday, October 31, 1996

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-45, to amend the criminal code (judicial review of parole ineligibility) and another Act, met this day at 10:30 a.m. to give consideration to the bill.

Senator Sharon Carstairs (Chair) in the Chair.

[English]

The Chair: To begin with, we have two witnesses. From the Canadian Association of the Elizabeth Fry Societies, the executive director, Ms Kim Pate, and from the John Howard Society, Mr.. Brian Saunders, who is the executive director from New Brunswick.

We await with interest your comments on Bill C-45. I will suggest that you try to restrict your comments to about 25 minutes between the two of you so there will be ample time for the senators to ask questions.

Ms Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you, Madam Chair. I am with the Canadian Association of Elizabeth Fry Societies, which is a national, voluntary, community-based organization which represents approximately 22 members across Canada.

Member societies provide services from early intervention with women and children who are at risk of coming into conflict with the law to intervention directly in the prisons; assisting women on pre-release planning, addressing issues that arise for them and a whole variety of services and programs depending on their community.

At the national level, our mandate is very clearly to work with and on behalf of and to give voice to the concerns and issues that impact women in the criminal justice system generally, particularly women in prison. That is a brief overview of who we are and who we represent.

One of the concerns that we have about Bill C-45 is that these proposed amendments seem to be a solution to a problem which is, arguably, nonexistent. We argue, on the record of section 745, that amendments thereto are, at the very least, unnecessary. We are concerned about the amount of time and energy that would be required to implement these sorts of amendments.

We acknowledge that the fears and concerns of families of victims are real. The needs of victims are real. However, we believe that it is fallacious to present these amendments as assisting victims in healing.

We believe that the pervasiveness of the misinformation perpetrated about section 745 is a large part of the problem which has produced what is perceived to be a call for amendments to or repeal of section 745. From speaking to Canadians across this country it is clear to us that the limited information available to the public has definitely influenced the misunderstanding of these issues and the perceived call for repeal of or amendment to these provisions.

As you are probably aware, all of the national women's groups and the majority of social justice groups, including the Canadian Association of Sexual Assault Centre, the National Action Committee on the Status of Women, the National Council of Women of Canada and the Canadian Association of Sexual Assault Centres, in addition to some 370 other national women's groups from across the country which represents many women and children who have been victims of crime in this country, have indicated absolute rejection of Bill C-45.

It is important, as you are considering this bill, to recognize some of the facts. I have no doubt that some of the facts have been put before you. You have a copy of the letter we sent to the Minister of Justice with respect to our concerns about what was being put forth with respect to section 745.

I am sure you are well aware that approximately 60 per cent of those people who are eligible for judicial review at the 15-year mark have not even applied for judicial review. This would lead those who are supportive as well as those who are critical of this provision to recognize that many people weed themselves out immediately because of the stringent requirements that already exist with respect to section 745.

Indeed, of those who have applied, approximately 20 per cent have been unsuccessful, resulting in the remaining approximately 80 per cent being granted some reduction but not a full reduction to 15 years of their 25-year parole ineligibility period.

In addition, it is important for you to recognize that even for those who have been granted a reduction to15 years, the earliest most are able to enter the community on parole has been at the 18- or 19-year mark.

For example, the only woman who has so far been eligible has applied for and has received parole ineligibility reduction pursuant to section 745. Had this woman been tried even some five years later, she probably would not have been convicted of first degree murder. She was convicted under a provision known as the constructive murder provision. She was convicted of first degree murder on the basis that she did not call out to warn a police officer that her partner, at whose hands she had suffered extensive abuse, had a gun. The police officer was shot as a result of the man having a gun, not because of the woman not issuing a warning. However, she was convicted of first degree murder.

When she came before the jury, the jury determined that she should be eligible for parole after 15 years. The opportunity to apply for parole occurs at 15 years, but many people do not actually get before the courts until around the 16- or 17-year mark. This woman was seen as an "ideal candidate" for section 745. She had never had any institutional problems. She had virtually no criminal involvement. Most of her involvement with the police had been reporting abuse prior to her conviction for first degree murder.

I want to ensure that you understand that we do not condone or support any of the behaviours that have led up to the crime of murder or participation with someone who has committed murder. Obviously, that is not the case. In this situation, we saw a woman who was considered by all not to be a risk to the community and who was considered by the legal system to have probably been unjustly jailed for that period of time. Even so, she was not eligible to be released into the community pursuant to the provisions of section 745, and then the provisions of the Corrections and Conditional Release Act, until she had served almost 19 years of her sentence. Recently, she has been released on day parole into the community.

It is absolutely untrue that the 15-year review results in anyone being released at 15 years. Even if everything is set in motion and clicks into place in the quickest possible time frames, most people are not released until the 18- or 19-year mark.

Of those released, one re-offended seriously more than three years ago by committing armed robbery. Given that none have committed a subsequent lethal offence, we see clear evidence that the provisions have been working fairly well. That is not in any way to excuse the fact that an individual has been re-convicted for a serious offence. However, the information which has often been put forth to the public is that we are releasing murderers who go on to murder again, and that is not true.

It is also important for this committee to compare Canada's parole ineligibility period to international standards. We are often seen as having progressive correctional policies. In fact, Canada has presented itself internationally as being progressive on many fronts. However, we are amongst the most repressive and are on the fringe in terms of excessive parole ineligibility periods.

I draw your attention our statistics as compared to those of other countries. Most countries set parole ineligibility periods at between 10 and 15 years for those serving prison terms for murder. Even without the increased and unnecessary restrictions introduced by this bill Canada exceeds the average for most countries internationally, including a country to the south of us to which we do not like to be compared. Our incarceration rates are spiraling, although thankfully not yet to the extent of the figures in the United States. It is important for you to be aware that, even among those states where they do not kill those who are convicted of murder, or do not parole for life with no eligibility periods defined, in the United States the average eligibility period is 15 years for prisoners serving life sentences.

It is important for you to realize that even with the current provisions we are on the fringe in terms of excessive periods of ineligibility. For a country that continues to represent itself internationally as wanting to be progressive and as being concerned about ensuring that our communities are safe and secure, we are stepping out on the fringe.

I remind you also that it is the same citizens in this country who decide who will represent them in Parliament as decide whether a prisoner should be eligible, pursuant to section 745, for reduction in parole; not lawyers, judges, or people who come from interest groups such as ours, who are clear in our bias in terms of representing the voices of individuals in the criminal justice system.

Jury members are pulled from voters lists. It is very important for you to remember that in the process which currently exists the juror takes careful consideration of all the factors put before them; factors put before them by the Crown prosecutor, by police representatives, by victims -- and this is increasing with the latest amendments -- by prison authorities and by the prisoner him or herself. Based on all that information, a decision is made as to whether the person before them should be deemed eligible for parole earlier than the current 25-year ineligibility period.

The statistics show that these citizens have made very careful and wise decisions which have ultimately been proven to be very sound. Our organization believes that to create further legislation when there has been no valid rationale established for presenting the sort of amendments that are before you is irresponsible, inefficient and expensive, particularly in this time of fiscal restraint and deficit reduction. Accordingly, we urge you to reject this bill.

I have a letter which Mr.. Mark Green presented for the first time before the committee in the other place. That was the first time he ever spoke publicly about his father's murder. Unfortunately, he was not prepared to ask to appear before the committee today; not because he is not interested this issue but because he believes that the voices of victims that are being listened to and are desirous of being heard are much more vocal and from a far different perspective than his. With your indulgence, I should like to read the letter which he sent to Minister Rock and presented to the parliamentary standing committee. It states:

Dear Mr.. Rock:

Further to your proposal to eliminate the review provisions found in section 745 of the Criminal Code, I would like to express my concerns about such a change. Further, I think my perspective may be somewhat surprising to you given my personal situation.

By way of introduction, on December 15, 1971 my father was killed during the commission of an armed robbery. My father was the owner/manager of an establishment called the New Grand Hotel which was located on George Street in Peterborough, Ontario. From accounts to me by my father's secretary, who was present during the robbery, my father struggled with the robber and was shot and killed. I am aware that there had been two previous break-ins at my father's office during the year prior to the robbery (when no one was there) and I believe my father was reacting to these earlier occurrences.

As you can imagine, this event had a devastating effect on myself and the rest of my family. I was 17 years of age at the time and I had two younger brothers ages 7 and 13. My mother was also alive at that time. As my mother had nothing to do with the running of the hotel or the other restaurants that my father owned, and the co-owners of the hotel lived in Toronto, I was given responsibility for managing these establishments on a short term basis. My mother was also in a state of shock which gave me the additional responsibility of looking after my two younger bothers until other family members arrived in Peterborough.

After what I believe was a few weeks, the police arrested two individuals in a cottage near Gores Landing. These individuals were charged with my father's murder. My recollection is that one of the individuals was deported to the United States and the other individual either plead or was found guilty of manslaughter. I believe he received a 10-year sentence.

As a result of these events, I became very interested in the workings of the legal/criminal justice systems. If not for my father's death, I likely would have followed in his footsteps and worked in the hotel/restaurants. However, they were sold to other individuals, although I continued to work in the hotel for a period of time to assist the new owners. The interest that was spawned by this unfortunate incident resulted in my pursuing a career in criminology. After completing my Bachelor of Arts degree in Law and Sociology at Carleton University in 1976, I applied to the University of Ottawa's Masters of Criminology program. I was initially rejected based on the fact that I did not have sufficient previous practical experience. My only experience had been my involvement as a Juvenile Volunteer Probation Officer. I spent the next year getting that additional experience; working at a halfway house (The House of Hope), as a correctional officer (Ottawa-Carleton Regional Detention Centre) and with emotionally disturbed adolescents (Roberts Smart Centre). The following year I re-applied and was accepted.

When I graduated in 1979, there were few jobs in Ontario so I accepted a Probation Officers position with the Alberta Solicitor General's Department in Calgary. After two and one-half years, I became frustrated with the bureaucracy associated with government and moved to the John Howard Society. I spent eight years with the Calgary organization progressing to the position of Assistant Executive Director. In 1990, I accepted the position of Executive Director of the John Howard Society of the Lower Mainland of B.C. (based in Vancouver). After approximately two years in that position, I was accepted into law school at the University of Ottawa. I completed my LL.B last year and I am now in the final months of articling at an Ottawa law firm. At this time, I am not certain what type of law I will practice.

The reason I have described in detail what I have done since the death of my father, is to show you that someone who has lost a loved one as a result of a criminal offence does not always harbour a vengeful or retributive attitude towards offenders. As you can see from the work I got involved with a short time after my father's murder, I began devoting my efforts to working with offenders, not punishing them. My reason for getting involved with this type of work was to try and assist offenders with the problems they were having, so they were not in the position where they felt they had to rob or possibly kill. I am not totally certain why, but I have always felt that punishing offenders by locking them away for ever-increasing lengths of time does nothing positive for the offender (in fact, it is most often more harmful) or the public, given the cost to taxpayers. My experiences since my father's death, while working within the criminal justice system, have reinforced my beliefs. A review of the situation in the United States is further support for my position. The notion that society is protected by incarcerating offenders, is in my opinion false.

With the respect to possibility of scrapping section 745, I would strongly encourage you to stand firm and maintain the law as it is presently written. The procedures established under section 745 provide sufficient safeguards to ensure that only the most deserving will be successful. To do otherwise, is not to make a rationale decision based on logic, but would be nothing more than pandering to the whims of the conservative types who are using emotionally distraught victims to advance their positions. Further, it is my belief that in most cases, politicians who support such regressive measures, are doing nothing more than trying to advance their own political careers.

In conclusion, contrary to what most people might believe, individuals who have been directly or indirectly victimized by a violent crime do not always want revenge. I am living proof of that. There are, I believe, many of us who have dealt with their loss in a very different way than to call for the increased punishment of offenders. Those of us who have chosen another path to deal with our loss, and have moved on, do not find it necessary to publicize our position as we have dealt with the issue. It is those who continue to struggle with their loss, who are trying to make sense of what has happened, that I believe latch on to the law and order agenda, and the accompanying media frenzy, in order to help them through their time of grief. There are, I believe, some individuals who are never able to deal with their loss.

One final comment that I wish to advise you of is that I am the partner of Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies. The reason I want to let you know of this is that although Kim has encouraged me to write you this letter, the beliefs I have expressed are truly mine. As I stated earlier, I have dealt with my father's murder and carried on with my life and I do not have a need to publicize my personal situation. However, if you wish to talk to me about participating in future public discussions, please feel free contact me.

I do have copies of this letter, if anyone is interested in having one.

Mr.. Brian Saunders, Executive Director (New Brunswick), John Howard Society: I have a few things to add, if I could. I would like to first offer thanks for the opportunity to appear before your committee. I would like tell you a little bit about the John Howard Society.

The John Howard Society has been in Canada for over 75 years. Today we have over 60 local branches nation wide. We have hundreds of volunteers working with us and we serve many thousands of clients every year. The John Howard Society operates an extremely wide array of community-based services for those we serve. We are truly a grass-roots, community-based organization which knows and works in the field of community corrections.

The John Howard Society represents people who have a common mind about certain values in the criminal justice system. Three of these values are, first, that people have the right to live in a safe and peaceful society, along with the responsibility to respect the law. Second, in the context of the criminal justice system, we believe that every person has intrinsic worth and the right to be treated with dignity, equity, fairness, and compassion without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. In the view of the John Howard Society, this also includes inmates and people who are going through the justice system. Third, we believe that justice is best served through measures that resolve conflicts, repair harm and restore peaceful relations within our communities and within our society.

From our perspective, section 745, as it was originally designed by the Parliament of Canada, has worked well. It is good law as it now stands. It is good law because it is universal in its application to all lifers. It is good law because it works on the principle of the use of citizens acting as a jury to make judgments on our behalf.

The John Howard Society does not believe there is any evidence that this section of the law, as originally designed, has failed. The law, as it stands, allows for the possibility of responding in a humane way to very unusual circumstances as they arise.

There are many individual differences within the long-term offender and lifer populations. We now have a tool which allows the correctional system to adapt in order to better enhance the probability of safe and successful community placement for inmates. Why would we take that tool away?

The John Howard Society believes that the longer an individual remains isolated from the community, the less likely that person is to have a successful release. Under these proposed amendments to section 745, individuals would wait longer before applying for permission to seek parole. We believe that a gradual and controlled conditional-release process, when well done and commenced at the right time, enhances the capacity of the correctional system to do its job correctly; that is, to be effective in correcting criminal behaviour and in creating a safer place for us all to live. This should be our goal for the justice system and for those who move through it.

In the end, prison alone really does nothing to redress the harm any crime does to a victim or to the community where the offence occurred. If repairing the harm done to the victim and to the community is the goal of these amendments, we believe that they cannot succeed. In terms of exacting revenge and retribution, these amendments probably will work very well, at least in the short term, but there will be a price to pay at some point in the future.

In conclusion, in our view, the present law does what it was designed to do, which is to offer more options to the correctional system so that it is better equipped to do its job. How we treat the least among us is the test of maturity and humanity of our justice system and our society. Hopefully, by working at such issues together as citizens, we will be able to pass this test.

The Chair: Thank you both very much for your presentations.

Senator Nolin: In your letter to the Justice Minister in March, you said that this change will likely only serve to increase both the human and economic costs. Reading the proposed amendments to section 745, I think to the contrary. If there is a screening process by which a judge will look at almost all the criteria that the jury will look at afterwards, it will reduce the cost.

Ms Pate: I am not certain how you determine that. We have made our assessment because the amendments add another layer to the review process for those who would be successful. It is well recognized that many do not even apply, knowing they probably would not get a review. We are adding the administrative phase of having a judge review all the cases. We argue that that is not necessary and that it will increase financial costs because a judge will review all the evidence for every single case, not only the handful of cases which we know will never receive the section 745 review.

In terms of the human costs, correctional services staff and workers such as myself are increasingly fearful that the women serving life sentences across this country, who know that these provisions will impact them, will continue to injure themselves or commit suicide.

There is also the cost of keeping people in prison even longer than the current 18 or 19 years. These amendments would probably add another year or two to sentences, even for those who receive the section 745 review. It costs approximately $92,000 per year to keep women at the federal Prison for Women. The average cost is from $40,000 to $70,000 in any other prison. These provisions would impose a tremendous financial burden on taxpayers.

Senator Nolin: The current criteria in section 745 are the same as they will be if this bill passes. We agree on that. I am focusing only on the first stage. A judge alone, reading a written request, will decide based on the same criteria. Do we agree on that?

Ms Pate: It depends on the other criteria.

Senator Nolin: There is no other. If you read section 745.6 and the proposed section, they are the same thing.

Ms Pate: Some people may not be able to apply if they are in for more than one offence.

Senator Nolin: We are talking about serious criminals.

Ms Pate: Exactly. Even if we were talking about precisely the same criteria, in which I think there are some changes, I do not think they will amount to huge numbers. However, there are some changes, obviously.

This will add another complete layer. The case would have to go before a judge. If the judge deems it can go further, the case must be prepared to go before a jury. Taking into account how long it takes to get cases before the courts, I suggest that that this will probably mean, at the very least, a year in lag time.

Senator Nolin: It is a written request. An inmate who wants to apply writes or has his or her lawyer write to the chief justice and that is it.

Ms Pate: I believe that the process of getting all that information will take a longer period of time.

Senator Nolin: You prepare yourself. You do not wait. I assume that an inmate will prepare in advance and when the date triggers, he applies. I think it will be a simpler process. The unanimity of the jury is another matter. I am focusing on the cost.

You also say that it will increase public fear and misperception about crime. Could you explain that, please?

Ms Pate: I speak fairly regularly in public fora, and since there has been media attention on the proposed amendments to section 745, I have seen that there is a perception in the public that at 15 years people who are incarcerated for murder and who would otherwise be there for 25 years, will suddenly be released into the community. The idea has also been promoted, by attention around these amendments, that those individuals go on to commit further murders. We know that those are both erroneous assessments and the reporting of such invalid information is only fallaciously increasing public fear.

Some years ago we did a study in Alberta about people's fear of crime at a time when there had been much information put out about young offenders and the young offenders system. Most people talked about a concern that crime was rising and that the streets were becoming more unsafe. Yet, they generally pointed to a community beyond their own as the one that was becoming more unsafe. It was clear that much of their fear came from the reporting of misinformation. Even when the individuals being interviewed came from the area that had the highest crime rate in the city, they would still point to another community. It was clear that there was a misperception about where the greatest amount crime existed and that much of the perception was based on media accounts.

We know that more attention is paid to certain offences. There is a perception that those offences are increasing even when statistics clearly show they are decreasing.

Recently a study was published about youth crime, an area seen to be spiralling out of control in the greatest proportion. The study showed that of some 6,000 cases in Toronto involving young people, less than 1 per cent were publicized. Of those that were publicized, very little of the information which went before the court was put before the public. Yet, when dispositions were announced there were outcries about the inappropriateness of them; this as a result of media reports which did not include even the very basic information put before the judge. All the information was clearly skewed, therefore skewing the public's perception of the crime.

Before the Juvenile Delinquents Act was repealed and replaced by the Young Offenders Act, the media was not even permitted into the courtroom. All sessions were in camera. At that time, there was a fundamentally different analysis of the problems of youth in our community than there is now that these cases are being publicized. There is much evidence, both within this country and internationally, to show that that is true. The United States is unfortunately one of the best examples. There is much publicity there around increased sentencing, yet the perception and fear of crime escalates beyond the proportion of the changes and amendments to the legislation.

Many states are now incarcerating at a greater rate than they are increasing access to post-secondary education. However, there is a perception that they need more incarceration, even though crime rates have neither increased nor decreased appreciably over the period of the changes. Much research has been done which evidences that.

Senator Nolin: You are not convincing me that there is much evidence that repealing section 745.6 would increase public fear. I understand your point about more publicity and more media. The general population is more concerned now than they were 10 or 15 years ago. I agree with that, but I do not think section 745 is doing that.

Ms Pate: It is not section 745 which is causing the concern, but these sorts of amendments to it. The current provision is seen to be working very well. We are not seeing problems in terms of the use of section 745. To amend it would create a more stringent process. This would certainly increase the perception among the nay-sayers that this presents a loophole for people to get back into the community, wreak havoc and kill more people. This is completely fed by these sorts of amendments. Why would we be amending this if in fact there were no problem?

Senator Nolin: That is a good point.

Senator Milne: It is a very good point.

On the first page of your annual report you talk about the history of the Elizabeth Fry Society. You say that it was founded in 1939 in Vancouver and that the Canadian association was conceived in 1969. Perhaps this is just family fiction, but I believe that my mother attended a meeting in Toronto about 1950 at which Agnes Macphail spoke to a group of Unitarian women. I thought that was the meeting at which the whole idea of the Elizabeth Fry Society began and that this group of women took the idea and ran from there.

Department officials yesterday were asked to provide some statistics about any inmates who have served more than 25 years. I would be particularly interested in knowing if there any inmates who have served more than 25 years for a single murder and have never committed any other crime. Do you have any knowledge in this respect?

Ms Pate: I am not aware of any women serving more than 25 years of a current sentence.

With regard to the development of the Elizabeth Fry Society, you are quite correct that there were earlier meetings involving many people with respect to that. I will reread that section in case I have miscommunicated. I was referring to the inception of the national body.

There were certainly many organizations starting up across the country. Toronto, Vancouver, Ottawa and Kingston were the locations of the key societies which brought forth the need for a national voice. It was the national organization I was referencing in the report which started in 1969. Thank you for urging us to make sure that is very clear. You are quite right.

Mr.. Saunders: I am unaware of any individual who is now serving past the 25-year mark for a single murder conviction. That does not mean they are not there. I would have to check.

Senator Milne: Is it more likely that people who have committed one murder have committed what are called "crimes of passion" and are therefore more likely to be released early on compassionate grounds?

Mr.. Saunders: That is probably true. The majority of lifers would probably fall into that category.

Senator Milne: Do you disagree with the provisions of this bill that would deny multiple or serial murderers the right even to apply for parole?

Ms Pate: The only such case that comes to mind is that of a Saskatchewan penitentiary inmate who was discussed fairly frequently by lifers and correctional staff when I worked there. He had served some 30 years for one murder. He had come back from war and killed his mate after discovering that she had been involved with another man during his absence.

As Brian has indicated, it is well recognized that many lifers are first-time offenders and that many of their crimes have occurred in a domestic situation. There is currently a review ongoing of the cases of women who have defended themselves against abusive partners and been jailed for manslaughter or first- or second-degree murder.

Our position is that individuals who have committed multiple murders should have access to this provision as well. That is based on the notion that the rule of law must be applied in the same manner to all people.

We do not want to see an erosion of our fundamental principles in Canada based on individual cases and individual circumstances. However, we recognize that an individual who is incarcerated for multiple offences has a slim chance of ever being released or even, for that matter, applying. No jury would provide them with that option. I cannot even imagine such circumstances.

I am aware of some situations where people who have been involved in abusing have been killed. I am not sure that any of those resulted in first-degree murder convictions, although I do know of a number of women who were convicted of manslaughter. I know of two cases where two offences were committed by women. This provision would not impact them either.

The issue is this: Is it necessary to fundamentally change the way we treat people in this country? We have a universal application of the rule of law to all people. Should we start to chisel away for this purpose with this offence? The chance of it ever resulting in any different result than we have now are, I would suggest, non-existent.

In my experience working with male multiple murderers, none of them ever had any illusion that they would ever receive a section 745. I do not know of any who even applied for it. I remind you that 60 per cent do not even apply when they are eligible.

Senator Milne: Government must respond to the concerns of Canadians and deal with the pervasive fears of many. These fears are exacerbated by victims' groups, and probably rightly so. How do you suggest that government deal with these fears without bringing in a law such as this?

Ms Pate: There is an incredible responsibility on elected officials to take leadership, particularly when they know the information being put forth is incorrect. They must remedy that situation by doing massive public education on these issues.

More than a year ago, when we first realized this issue was coming up, we talked to a number of members of Parliament and a number of bureaucratic staff throughout Justice and the Solicitor General's department. We were advised that this issue would never come to the forefront; that it was a non-issue; that basically there were no concerns with section 745. It was put to us as being tantamount to talking about the death penalty.

Our experience in the year and a half since those discussions has been very much to the contrary. It has been clearly put to me by some of the groups who are advocating for this that they want to chisel away. They are targeting multiple or serial killers who have no illusion that they will ever be released pursuant to section 745. They want to start from that point. They recognize that once they chisel away at the rule of law and the application of the Charter and human rights legislation to those individuals, they will have a perfect introduction for death penalty discussions with regard to those very same individuals. That will start them on that sliding scope for many others.

Those are very real concerns. It is a concern for me as a citizen. I hope that my son and future generations of Canadians will be concerned about this. I hope that you in this committee and all parliamentarians will seriously consider what this means in terms of our future, especially given Canada's desire to be an international forerunner in these fundamental entitlements.

That does not in any way denigrate the needs of victims. I have worked for many years with victims, particularly with women and children. Their needs must be met. Pretending that this sort of provision meets those needs disregards the very real needs of those victims.

Mr. Saunders: The position of the John Howard Society has been very much similar to that of Elizabeth Fry. Once the discussions are opened up about changing the universal application of the section, other exclusions will be added down the road. Others will be precluded, rendering the section totally ineffective. The section would be killed by adding exclusions. We thought it best to try to stop it on that ground right now.

Senator Jessiman: Thank you for your presentation. I am sure you both know that there are four fundamental sentencing purposes. In the order in which I think they should be considered during sentencing, they are protection of society, deterrence against further crimes, punishment, and then rehabilitation.

What concerns me about section 745 is that rehabilitation seems to be getting pushed closer to the forefront and we are forgetting about the other three. I know that it is your job to look after those who have committed crimes and to try to rehabilitate them. I am not advocating the return of the death penalty. Certainly, if there were still such a penalty, the first three purposes would be taken care of.

Do you agree that that should be the order for someone who has committed murder? Should we consider the other three first before we consider the prisoner and the rehabilitation of that prisoner?

Mr. Saunders: Not necessarily in the order of the priority that you have laid them out, senator.

Senator Jessiman: Tell me what priority you would place on them.

Mr. Saunders: Our experience in the John Howard Society has been that the protection of the community is not necessarily enhanced by intensifying the level of punishment that is meted out to an offender.

Senator Jessiman: The death penalty would solve it. Society would be protected against that person.

Mr. Saunders: Society would also be exposed to that officially sanctioned violence get. I would be concerned about the effect on our society and communities if officially-sanctioned state executions became part of our everyday existence. Clearly, I think there is a tradeoff in that regard.

If you are talking just about the individual, that may be so. However, individuals do not live in complete isolation from their communities. The result of any action that the state takes against an individual is not exclusively restricted to that individual. A lot of thought must be given to that.

Senator Gigantès: How do you mean, not exclusively to that individual?

Mr. Saunders: If we do not pay attention to repairing the damage the crime and conflict inflicts on a community, or a victim in that community, and if we were only dealing with the offender, then we are not necessarily repairing the damage or lending any support to the repairing of the damage that the crime or conflict exacts. There is a price to be paid which should be addressed in some way through the justice system. There are needs which must be met that punishment or deterrence do not get at.

I am not sure I have answered your question.

Ms Pate: Protection of the public is the paramount purpose. Many of us who work closely with the system have found that meeting the needs of and providing opportunities for people who can safely integrate into the community best serves the protection of the public, as well as taking into account the fiscal constraints and economic realities.

I am a teacher by training and have worked with adolescents. I also did literacy programs within the prison and the community. In order for deterrence to have effect, people must have a certain level of abstract thinking. They have to be able to think beyond the immediate situation and project what will happen in the future.

Deterrence is a notion to which we cling, and I say "we" in the broad sense. Many us plan for the future. I know very few, if any, individuals who have committed criminal offences who are able to think ahead. Those who have significant abstract thinking abilities often are not in prison. Individuals who are able to think ahead and who would be impacted by issues of deterrence are not the ones who end up in prison.

I appreciate that that is a fundamental principle. The research that has been done in this area, in particular with regard to young people, which is the only area with which I am familiar, has shown that general deterrence and specific deterrence have not been effective.

Senator Jessiman: Would you rank that fourth?

Ms Pate: I would rank that as somewhat irrelevant in terms of the reality.

Senator Jessiman: In the sense that rehabilitation is more important than deterring them from doing it again.

Ms Pate: Rehabilitation depends on how you define it. Certainly I have serious concerns about some of what is being done in the name of rehabilitation. That is, perhaps, a topic for another discussion, although I would be happy to elaborate on it now.

What is meant by punishment is important. If you mean people being held accountable and responsible for their actions and having some consequences, then, yes, punishment is important. It is a reality of our lives. We all take the consequences of our actions in certain ways, although not always through the criminal justice system.

I find it difficult to rank them. Unless we deal with the issues and presenting circumstances which put people in the prison system to start with, and unless we assist them in being able to integrate, then we have one of two choices to make. We either end up with a system in which you kill people, or we have a system in which we are willing to pay to keep these people incarcerated for extended periods of time. The more they are kept in a prison context where there is no focus on reintegration, the more we end up with a brutalizing warehousing situation. This means it is difficult for them ever to integrate. There are some issues that need to be looked at there.

Does that answer your question?

Senator Jessiman: Yes, thank you very much.

I wish to refer to a statement that was given to the House of Commons. I want you to tell me whether it is true or not. It does not have to do with persons who have murdered, but with people who have been arrested. They have either been given parole or released early. They are the type of people whom the parole board thought ready for society. The statement made in 1996 reads as follows:

Last year 15 people were murdered by those who had been released, either on parole or some other form of early release.

I know they were not murderers; but they were people who had committed a crime. They were in jail, perhaps for robbery. Do those responsible say, "They are the kind of people who will not rob again, but they might kill"? Surely to goodness, when they are releasing these people before they have completed their full sentences, someone considers this.

First, do you know if that is a correct statistic that was given to the House of Commons?

Ms Pate: Who provided the statistic?

Senator Jessiman: It starts:

Mr.. Ramsay (Crowfoot): Thank you, Madam Chair.

This is found on page 7 of 69 of the evidence recorded on Tuesday, June 18, 1996.

Ms Pate: I cannot tell you. I would be happy to find out if that is accurate.

Senator Jessiman: Would you not say that if that is true, it is very serious? Although they did not commit murders before they went to jail, they did commit a crime. They were released early because they were the kind of people who, it was thought, could go back onto society and not rob anymore, if that was their crime. I am concerned about that.

Ms Pate: While I do not see this as being germane to the issue of section 745, I think it is entirely possible that there may have be 15 people who spent some time been in prison before they committed murder.

Senator Jessiman: You say it does not relate, but it should relate. These people had been released early. Someone made a decision as to whether they were ready for society. I say that has some relationship.

Ms Pate: The decision could have been made either by the National Parole Board or under statutory release, in which case they automatically go back into the community.

To go back to your previous question, as we make our prisons more brutal and less well-resourced in terms of program and rehabilitative supports, and give longer sentences, there is no doubt that we are releasing people who come out angrier and potentially more dangerous to our communities. That is a reality. That should be a concern for you.

Senator Jessiman: The parole board is doing that.

Ms Pate: It may have been people who served their entire sentences, in which case the parole board has no jurisdiction to interfere with their release. That is a very different situation from people going before a jury which examines all of the information about them.

I asked you for the source of your quote because I am aware that some misinformation has been put forth about people with criminal records committing offences, but they are not necessarily committed while on conditional release. I do not know if the statement you read is accurate.

Senator Jessiman: Here a Mr.. Gallaway speaking, but he is talking about a Chief Fantino, who I understand is the president of Canadian Police Association. He is saying that the Canadian Police Association, to a man, all are supportive of the repeal of section 745. Why are the police wanting repeal?

The Chair: Senator Jessiman, the Canadian Police Association will be appearing before this committee.

Senator Jessiman: Thank you, Madam Chair.

Ms Pate, could you comment on that?

Ms Pate: I would encourage you to ask them that directly.

I note that in past the Canadian Association of Chiefs of Police have taken far more progressive positions than this. I am not certain why they are taking this tack. I think there has been much politicizing of some groups, including perhaps the Chiefs of Police. Given that their membership association, the Canadian Police Association, has taken a strong position, it might be difficult for the Canadian Association of Chiefs of Police to take a different position.

I suggest that the same education need be provided to the police as to the general public if that is in fact is their perception. They have been told that this is a loophole. They have been told that release is automatic. I have talked with a number of police officers who believe that to be the case based on information which has been passed through their organization.

Some people called me last year because they were receiving requests for donations to an ad contrary to section 745. Had they not been individuals who knew better, they probably would not have challenged the discussion. They were being given clear misinformation by people calling on behalf of police officers to gain support for those ads.

Those are very real concerns which we continue to have. That kind of misinformation is being given to the police and then passed on by the police, and we encourage you to not perpetuate that misinformation.

Senator Gigantès: I deplore any talk of crimes of passion. Any murderer is deranged, in my view. Someone who kills his wife because he finds her in bed with someone else is deranged. He is not to be blamed less than any other murderer. I think that in this day and age we should stop thinking with any more compassion about these macho nuts than we do of others.

I agree with you to the extent that I do not think that fear of the death penalty is a deterrent for people like that. That is one reason I do not support the death penalty. The other reason is that I am always afraid that some innocent person will be killed.

However, talking of deterrence and wanting to prevent the majority of murders, which seem to be committed by young men, I suggest total abolition of the sexual organs. That will deter them.

If someone has killed, whatever the motive, I have little sympathy for that person. I wish I were able to support the death penalty, but I cannot. They have done something utterly unforgivable, especially if they are repeat offenders or if they are multiple murderers. The enormity of what they have done is such that I have strong doubts that they can be rehabilitated.

You mentioned warehousing. Do you have another solution?

I cannot see why we would object to the amendments to section 745. Society does have a right to feel a little safer. I am not saying that this amendment will cause it to be safer. Even if it is an illusion, society is entitled to that. I think this need of society is superior to the need of the criminal who, deranged as he is, killed someone else.

What is your reaction?

Ms Pate: Speaking for the Canadian Association of Elizabeth Fry Societies, if it has seemed that we are proposing that those who kill be excused or that there be sympathy for their situation, I want to disabuse all of you of that notion. That is not what we have come here today to suggest, nor is it what we put forth as an organization, ever.

We are not saying that section 745 should be repealed but that as it currently stands it provides the sorts of safeguards of which you speak.

You may have noticed that I do not refer to crimes of passion. I have worked far too long with women who have been in those situations and managed not to end up dead themselves to know that that is a very real issue. The concern we have, however, is that there are some individuals who can contribute to society, and we suggest they should be provided the opportunity to contribute again once they have served their penalty.

If Canada were on the short end in terms of parole ineligibility, I could perhaps understand better the position. If I am missing something, I certainly stand to be corrected by you, but we know that Canada is on the other end, the end of the longest periods of parole ineligibility internationally. Given that reality, it strikes me that to make it even harder for individuals to achieve a section 745 review is completely contrary to where we would want to see our country go.

To diminish the rule of law for individual cases reminds me far too much of other regimes in other times in other parts of the world where certain people were determined to be synonymous with human refuse. As an organization, we would not be willing to make those sorts of assessments. That in no way means we condone the behaviour. However, we are not prepared to say that certain persons are not permitted to have the same application of the rule of law. We are saying that it must be universally applied, or else we end up with the sort of despotic regimes that we have seen in other times and in other jurisdictions.

Senator Gigantès: We do apply the law unequally in many ways.

Ms Pate: If you are talking about systemic discrimination, I would agree absolutely, but that is another issue.

Senator Gigantès: You said we are on the long end of the scale for parole ineligibility compared with other countries.

Ms Pate: That is right.

Senator Gigantès: What are the consequences in comparison? How do shorter periods of ineligibility affect crime rates in other western countries? Do you have such statistics?

Ms Pate: I have some. As more become available, I will be happy to share them with you.

In the Netherlands, a life sentence has historically meant in the neighbourhood of a five-year ineligibility period, which means five years for murder, and they have no appreciable difference in crime rate.

Senator Gigantès: Are you speaking of repeat crime rate?

Ms Pate: That is crime rate overall. I do not know if they have differentiated.

Senator Gigantès: That is the statistic which is pertinent. Does releasing a very serious offender such as a murderer early increase the number of repeat crimes or does it not? That is the statistic that should teach us something.

Ms Pate: I believe that if an increase in crime rates among recidivists did result, that would be noted. The fact that crime rates among recidivists is not noted in the information that we have been able to glean would suggest it is not a factor. In fact, if there were increased numbers of repeat offenders, the crime rate would be indicative. We would probably be seeing changes in the legislation.

Senator Gigantès: If I had gone to my former boss, Senator Doyle, with such an assumption as a journalist, he would not have accepted it.

The Chair: He has very high standards.

Senator Gigantès: That is right. You are making a great leap of faith in that assumption.

Ms Pate: I accept the criticism. We do not have those statistics. It is a good point and I will follow up on it to try to discover whether those statistics exist.

As I said, however, the average is between 10 and 15 years of parole ineligibility. In South Africa, which is generally not seen as a progressive state, parole ineligibility is 10 years. In the United States, parole ineligibility is 15 years, in those states where they do not have the death penalty. Their statistics do not show repeat murderers. They show, in fact, decreases.

Senator Gigantès: Because of long periods of ineligibility?

Ms Pate: No. Nowhere have I seen those links been made directly.

Senator Gigantès: What were you saying about those states in the United States?

Ms Pate: There are some states where they have no parole eligibility for life sentences and there are some where they have the death penalties.

Senator Jessiman: Do you have these statistics for Singapore?

Ms Pate: No, I do not.

Senator Gigantès: I do not think South Africa is pertinent. There are parts of the United States which also are not pertinent because of the dreadful racial mix.

I should like to think that if we released criminals on parole earlier, it would decrease the repeat crime rate and that these people would turn out to be citizens who do not threaten society or themselves. That is pertinent information that I should like to have.

Mr. Saunders: We do have some statistics about the success of the current provisions. We know how effective section 745 has been over the last 20 years in terms of the people who have applied and who have been released. We know what the effect of the provisions have been as they stand now. We have those statistics.

The Chair: We would be seeking statistics from 1987. The death penalty was abolished in 1976 and section 745 did not become legislation until 1987.

Mr. Saunders: I am sorry, that is right.

Ms Pate: With regard to those statistics, we do know that one offender has reoffended with armed robbery. The parole of two offenders was revoked for technical violations.

The Chair: We have those statistics.

Senator Lewis: What is the situation as far as applications under the present section 745? There is a procedure now, is there not?

Senator Jessiman: It goes straight to the jury.

Senator Lewis: In answer to a question of Senator Nolin, you spoke about the time these applications would take and the cost of them. What is the present procedure? Is it similar to what is set out in the proposed clauses?

Ms Pate: The amendment adds another layer of process to decision making about whether someone is eligible for a section 745 review. Currently, after 15 years an individual may apply for a review of their case by a jury.

Senator Lewis: I am wondering about the actual procedure. Is the application made to a judge, the same as it would be under this proposition?

Ms Pate: It would be basically the same. The additional step is application to a judge first. If the judge determines, based on the information put forth, that the case should go to the jury, it would go to the jury.

Senator Nolin: It goes directly to the jury.

Senator Jessiman: Do you have statistics on how many applications have been considered by juries to be frivolous? If there have been a number that were frivolous, this step, although it is an extra step, will certainly save money because it will eliminate the necessity of proceeding immediately to a jury.

In cases that are successful, you are right, this is an extra step. However, in those that have been shown to be frivolous, this extra step will save money and time.

Ms Pate: This extra step may or may not save time and money. Although 20 per cent of applicants have been unsuccessful before a jury, I suggest that that does not necessarily mean they were frivolous applications.

Senator Jessiman: The judge may also say that although an application may not be frivolous, he does not think it has a chance.

If only 20 per cent have been unsuccessful, with a judge eliminating those cases which are unlikely to be successful, perhaps 90 per cent or 95 per cent will prove to be successful.

The Chair: We have alerted the Solicitor General's office about some of the statistics being asked for. It is really not the purview of these witnesses to have those kinds of statistics at their fingertips. If additional statistics become available, we will distribute them to all members of the committee.

Senator Lewis: Under the proposed amendment, the judge would make a decision based on the written material provided and follow the same criterion as the jury would consider. Is that the same situation as under the present legislation?

Senator Jessiman: There is no judge at the moment.

Senator Lewis: Is the criterion for the jury the same?

The Chair: Yes.

Senator Lewis: What is the usual procedure? It may be different in different jurisdictions. Is the submission to the jury by way of written documentation or is there a full hearing?

Ms Pate: There is usually a full hearing, including witnesses.

Senator Lewis: Is it done in open court?

Ms Pate: Yes, it is.

Senator Lewis: There is an implication in these proposed amendments that in the first instance the judge will make his or her determination on the basis of written material. The same criteria would be used by both the judge and the jury. If you read it in one way you, would think that the jury's determination would be on the same basis; that is, only on written material. The provision states that the chief justice of each jurisdiction can or may make such rules, as required.

Would this provide a different procedure than the current one?

Ms Pate: Our concern is that it may limit what is put before the judge. Often there is viva voce evidence. Testimony in person provides opportunities for the judge and jury to hear more directly from both the prisoner, who may or may not have sufficient literacy skills to present him or herself sufficiently, and from other people who have done work in the area and know this individual. They have researched everything from personal information to the broader issue of release of parolees generally.

Senator Lewis: There seems to be no procedure set out to cover that in this bill.

Ms Pate: There is a procedure set out for the judge to review.

Will you be hearing from the Canadian Bar Association on this matter?

Senator Lewis: Yes.

Ms Pate: You will likely hear about some of this from them. In some jurisdictions, there are concerns about having that stage in place. I do not presume to be able to speak with any authority on those issues, but I encourage you to ask representatives from the Canadian Bar Association about issues they may perceive.

We already see issues in that in some jurisdictions virtually no section 745 applications have been successful. In others, there has been relatively greater success, dependent upon who sits on the bench.

Senator Doyle: In the course of our questioning on this bill we heard a good deal that went beyond the bill. There was discussion about parole in general; whether it is a good thing, and whether it is being done in the right way. We are occasionally brought back to the bill by people like Senator Gigantès, who talk about the enormity of what these people have done.

Would you have found it more useful at this time to have had a general reconsideration of parole as a whole and how it is exercised rather than a discussion on this narrow area on which we have not been presented with any evidence that shows it is not working? Should we have been looking at more general questions than the problem of lifers and public alarm at the enormity of what they have done?

Ms Pate: I agree that we have strayed into a general discussion around the appropriateness of parole. The manner in which it is currently utilized and resourced is among the issues which have not been put squarely on the table, but I should like to do so now.

Those discussions will happen. It clouds this issue because some of the concerns which have been raised here are concerns that are more generic to provisions of the Corrections and Conditional Release Act, as well as other proposed bills that are coming forth. In fact, section 745 itself is not a provision that has been shown to be ineffective or unable to provide the protections that are being expected by the public or by parliamentarians.

The five-year review of the Corrections and Conditional Release Act which is currently in progress will address some of those concerns. My hope is that some of the discussion which arose from the most recent bills that have been presented by Minister Rock will also produce some of that discussion. It is a discussion that we very much need to have.

The position of the Canadian Association of Elizabeth Fry Societies is that a big part of problem is that we become increasingly focused on detention of individuals as opposed to paroling in our parole system. The levels of support and supervision available in the community has directly impacted upon the success and the problems that are being presented in terms of parolees who have committed offences or were released without sufficient supervision. People being released without supervision after spending incredible periods of time is an even greater issue, from our perspective.

Mr.. Saunders: This has served as a lightning rod for the discussion that people want to have around the question of conditional release. Sadly, it has clouded the issue of whether the section has done what it was designed to do.

Our position is that this section works. We would hate to see the section thrown out simply because people want to talk about the general questions around conditional release. That discussion needs to happen, but this is not the most appropriate time to have it.

Senator Doyle: In most matters that come to this committee, we have the opportunity to talk to all the people who might be affected by what we do. We do not always have that opportunity when we are dealing with people who have lost their rights because of their behaviour, although the committee has, from time to time, visited most of the prisons in the country. My own experience in that area has not been to make me soft on inmates, or not to make me want to be much more harsh, but to want more information than we receive.

Some members on the committee might have watched a program on CBC Newsworld last night on Warkworth prison in which a group of 20 or 30 lifers were questioned about this bill and about other legislation which affects them. I learned one thing that might have been useful here this morning concerning the question which Senator Jessiman raised about pushing back the various things we must do with regard to imprisoning people and putting the concentration on rehabilitation.

The argument put forth by convicts, if you are to believe them, was that lifers have a difficult time getting into programs. They are told, "You have lots of time to get your diplomas. We will give the programs to the guys we have for two or three or five years."

The interviewer asked them what was the most difficult thing they had to deal with in the prison system. Most of these people had been in several prisons. They were not referring only to Warkworth, which is where they now reside. There was total agreement that the thing they were most afraid of was fear; fear of their guards, fear of their fellow prisoners, fear of themselves, fear of the prison system, and fear of us, as legislators. As Mr.. Roosevelt said, we have nothing to fear but fear itself. That does not necessarily leave a vacuum.

I am sure that members of the committee know that you can get copies of these broadcasts from our library. There are parts of the program which were merely television, but there are also parts of it which I found informative from the people we are not hearing this time around.

The Chair: Senator Doyle, I did not watch that program last evening and I do not know how many other senators had the opportunity to do so. We have an empty day in this period of discussion. Would you like us to set up a screening of that program for this committee?

Senator Doyle: If you did, I would watch it again myself.

The Chair: We will try to arrange for such a screening for members of the committee. I will make it on a regularly scheduled day so that we will not have to make special arrangements.

I thank you very much for your presentation this morning. It was informative.

Senator Nolin: I should like to make a correction for Senator Gigantès. He referred to passion, and homicide committed under the heat of passion. The Criminal Code already has a provision dealing with that type of situation, and it does not fall under murder. If it is properly in evidence and argued, the court will take that into consideration and it will not be a murder, so it will not be applicable to what we are looking at.

Senator Gigantès: I object to that. Murder is murder.

Senator Nolin: I know, but it is not murder now in the Criminal Code.

The Chair: I also would like to make a correction. Mr. Saunders and I were both a little bit right and yet neither us was entirely right. Section 745 was passed in 1976 but no one became eligible until 1987. Therefore, we do not have any statistics for that period of time.

Ms Pate: Given Senator Doyle's comment, the Lifers' Committee at the Prison for Women sent a letter to the House of Commons standing committee. They are very interested in providing the information directly, if that is something you would like. I do not know whether you received that letter as well.

The Chair: We have not received it but we will look into it.

Honourable senators, we will now consider Bill S-3 in camera.

The committee proceeded in camera.


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