Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 34 - Evidence
OTTAWA, Wednesday, November 6, 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 4:05 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, this afternoon, in our consideration of Bill C-45, we have witnesses from the Canadian Police Association and from the Canadian Association of Chiefs of Police. Please proceed.
Chief Julian Fantino (London, Ontario), Member, Law Amendments Committee, The Canadian Association of Chiefs of Police: Madam Chair, circumstances make the job of police chief one of the most challenging in the country. It makes the life of Minister of Justice simple by comparison.
That was a statement made by the Honourable Mr. Rock back in August of 1995.
Honourable senators, I appear before you to deliver formally the message from my colleagues across the country. We believe we also speak on behalf of victims of crime and law-abiding citizens in the communities everywhere we police. We feel we are able to carry forward their message to you. Issues of public safety, security and quality of life are critical considerations in communities at this time. We thank you for this opportunity to address you.
On June 11, 1996, the Minister of Justice announced a bill to reform section 745 of the Criminal Code. The position of the Canadian Association of Chiefs of Police is that, although this is a small step in the right direction, it amounts to a band-aid solution when major surgery is required. This response to the concerns raised by the vast numbers of Canadians, including victims' rights group, the police community, politicians and many everyday citizens, is not an adequate response, we submit.
Let us not lose sight of the fact that we are dealing with murderers who have been sentenced following due process.
In the case of those convicted of first degree murder, the eligibility for parole should be as prescribed by statute, not less than 25 years. In the case of second degree murder, the period should be at least 10 years or such greater period as the trial judge sees fit to impose at the time of sentencing, as permitted by the Criminal Code.
The proposed amendments do not amount to abolition of section 745 which, in the view of the Canadian Association of Chiefs of Police, is the only reasonable course of action. This is merely tinkering, as we see it.
The Honourable Mr. Rock has stated that the section 745 process will now only be available to those who are most deserving. This amounts to nothing less than a head count, if you will. If a killer has taken only one victim, he may be considered deserving, while the individual in the next cell, who has killed twice, will not be. Our position is that early parole should not be available for either of them. They have abrogated their right to special treatment and privileges by the act of taking a human life, and should receive no special consideration beyond the statutory right to be considered for parole following the minimum period prescribed at the time of sentencing.
The Canadian Association of Chiefs of Police believes that every life is precious and that it is morally unjustifiable to reward a killer simply on the basis that he has taken only one life. Moreover, it is an error to tie this legislation to the worst mass-murderers and serial killers. Our concern is that less high-profile but equally dangerous and evil individuals could reap the rewards of early release.
A valid example of this last category would be the murderer who has killed a police officer or jail guard. Under the proposed legislative scheme, this person would not automatically be excluded from making a section 745 application. It is the position of the Canadian Association of Chiefs of Police that he clearly should not be a candidate to be considered for release prior to the full term of 25 years.
What was the rational basis for section 745 in the first place? It amounted to an attempt to circumvent the original disposition of the charge which was handed down by a judge who made a decision and gave judgment based on fresh viva voce evidence concerning the manner in which the murder was committed and its effects on the family of the victim and others. It demeaned the loss of life caused by the convicted killer. It was peculiar and illogical in that it gave special treatment to the most dangerous criminals convicted of the most serious offences in the Criminal Code and in our land.
The government is now sending out a better message but it is garbled. This compromise appears to be an attempt to placate civil libertarians and others who, as far as we are concerned, with respect, surely are not speaking for the Canadian public. Section 745 is being watered down when it should be drowned.
The Canadian Association of Chiefs of Police appreciates that our concerns and those of many average Canadians have obviously been heard by the Department of Justice with regard to some amendments that have come forward; however, the department is not acting upon those concerns as we would wish.
We strongly oppose the continuation of section 745 in any form. This was an ill-conceived law and ought to be put to rest once and for all. The only resolution to this situation that will satisfy the goal of sanctifying public safety is to make life imprisonment once again mean life.
I also wanted to comment briefly on statements made by the Prime Minister back in April of 1993. He said that safe streets and homes should be a basic right of every Canadian. He went on to state that a 40-per-cent increase in violent crime since 1984 was troubling and that half-measures were not adequate.
The Honourable Prime Minister went on to speak about guns and drugs, knives and other offensive weapons in schools, and rampant violence in our communities. These things, he stated, happen mostly in American cities, but more and more we have seen them in our towns and cities. He said that we do not want to Americanize Canada; we do not want our communities to turn into the same violent and frightening places we see south of the border. He concluded that Canadians want to halt the decline and they want to halt it now.
We submit to you that a significant step forward in addressing those conscientious comments on the part of our own Prime Minister is the out-and-out repeal of section 745.
Constable Grant Obst, Vice-President, Canadian Police Association: Madam Chair, honourable senators, I am with the Saskatoon Police Service. I have been a police officer in Saskatchewan for the past 13 years. I would like to thank you, on behalf of the 40,000 rank-and-file municipal police officers and RCMP members that the Canadian Police Associations represents, for the opportunity to share our police perspective on section 745.
As a police officer, I spend a great deal of my time dealing with two components of our society. For the most part, I deal with the criminal element, unfortunately, cleaning up in the wake of the destructive carnage that is left behind from crime in our communities.
Probably a disproportionate amount of my time is spent dealing with victims of those crimes.
I hear repeatedly throughout my duties that people are losing confidence in the Canadian justice system. Quite often people say: Do not worry about it, officer. He will not get anything anyway. Do not waste your time, officer; it is not worth it.
It is becoming more and more difficult for myself and my colleagues to impress upon the communities that we serve that the Canadian justice system is the best system going and that they should have confidence in it.
The problem with section 745 is that it makes their case much stronger. Section 745 is not only a slap in the face to victims of murderers; it is an enormous, closed-fisted, judicial blow directly aimed at the law-abiding citizens in our communities.
When juries sentence people for first-degree murder, they sentence them under the well-known premise that the individual is going to jail for life and that they have no chance of parole for 25 years. That is a well-known fact amongst police officers and the community at large in this country.
A family that I dealt with in Saskatoon experienced their worst nightmare when they discovered, a couple of years ago in Saskatoon, that an individual sentenced for the first-degree murder of a police officer in 1978 could, after 15 years, be allowed to apply for judicial release.
Section 745 is a complete contradiction of section 742 which outlines 25 years as the ineligibility period for parole. The absolute right of a first-degree murderer to have this hearing is reprehensible. It was called the "faint hope clause" when originally placed in the Criminal Code. It is not a faint hope; it is an absolute right.
The bill in front of you today changes that. It is our position that section 745 should be repealed in its entirety. The victims of murder are gone and they have no second chance or "faint hope." Neither do their families. The families' scars do not heal after 15 or 25 years but remain with them for life.
As police officers, we do not feel that a 15-year sentence adequately addresses the worst offence a human being can inflict upon another human being.
I understand that you cannot repeal section 745 in its entirety. I also understand, however, that you can make amendments to section 745 or send it back to the House of Commons to be reconsidered for repeal.
My colleague Mr. Newark will supply you with the principles of law that apply to section 745 and will also illustrate some amendments that the Canadian Police Association has put before you for your respectful consideration.
Our position is that section 745 must go. This is nothing but a diluted version of the original section. Please help me and my colleagues to re-instil confidence in the Canadian criminal justice system for the people that we serve out there. It is becoming more and more difficult to do so.
The Chair: Thank you, Mr. Obst.
Before we begin with Mr. Newark, I want you to know that, because of renumbering, we are now looking at section 745.6. The sentencing bill created a renumbering of the sections. That is for your information, because you will be dealing with this again. It is now section 745.6.
Mr. Scott Newark, Executive Officer, The Canadian Police Association: I should like to pick up on the last point made by Mr. Obst in relation to the philosophy that underlies this section of the Criminal Code.
No matter your opinion of what the sentence should be for someone convicted of murder, the contradiction that this section brings about in relation to other sections of the Criminal Code is problematic from a public perspective.
I am sure you are all aware that we have, long ago, developed principles of sentencing. The principles are enunciated by our courts of appeal in every sentencing text you could ever find. They talk about specific deterrence, general deterrence, denunciation and rehabilitation. A blend of those principles occurs in every single sentence.
As a people, through our Parliament, we have codified some rules. For example, on reasonably minor offences, we do not think you should receive a life sentence, so we created something called summary conviction offences with pre-set minimum sentences. As a people, we have said that this is a wise mix for use by our courts. In many cases, broad discretionary sentences are available, and each case is decided on its own merit.
For first-degree murder, we, as a people, made a different choice. We said that the mix of principles on this one calls for life; that is, no parole for 25 years as contained in section 42 of the Criminal Code. While we were at it, we said that, pursuant to section 745 of the Criminal Code, the custodial proportion of that sentence may be reviewed.
Take a look at the wording contained in the original section and in the amendments. Those same principles of sentencing are not considered, are they? Instead, the focus here -- at least, in my judgment -- is improper and contrary to our philosophy of law. It focuses virtually exclusively on the potential rehabilitation of the offender. On something like first-degree murder, the people in this country say, "For the first 25 years, you are in custody for what you have done, not for what someone thinks you might have become." Should Parliament or the people decide they do not want that anymore but would rather have a 15-year sentence, then they should go ahead and change section 742. However, allowing this contradiction to continue in section 745 is having an effect everywhere that I have travelled across this country: The credibility of the criminal justice system is being sapped.
Again and again, people are commenting that our criminal justice system says one thing, as set out in the Criminal Code, and does something else. This section, as it stands, is destroying public confidence in the criminal justice system.
Section 745 is not the only problem. Clifford Olson is eligible for his review in August even though 15 years have not passed because of another little section called section 746. Under that section, the clock starts running on the 15 years from the time of first arrest if the suspect was held in custody.
Life does not mean life; it means 25. And life does not mean 25; it means 15. And 15 does not really mean 15; it means something less than that.
The parole ineligibility period of 25 years for first-degree murder is more appropriate than 15 years, but if it is to be 15, then Parliament should have the courage of its convictions and say so. Let the people who vote decide if they share that philosophy.
That is the fundamental fault in section 745 and in this bill. Chief Fantino summed it up directly. This is just tinkering.
The simile I used in our brief was administering an aspirin to someone who has a potentially fatal disease. Although the disease is curable, we just choose not to cure it.
I also suggest that you send this bill back for correction. We have a couple of amendments contained in our brief which would help in reference to the "exceptional case" which Mr. Rock talks about. I asked Mr. Rock a couple of times to tell us what kind of exceptional case he is referencing.
It is important that you understand that this section only applies to first-degree murder. The definition is clear. These are not the kinds of circumstances that I have heard him describe as "homicides." These are the worst kinds of cases.
At the House of Commons hearing on this bill, we raised a comment on the clause of the bill which seemed to eliminate the possibility of victim evidence being presented in these hearings for any homicides that take place before the bill comes into effect. Miss Cohen, the Chairman, indicated that several other people had raised the same point.
I asked the question because I was not sure I understand it properly. I always find the transitional sections difficult to comprehend.
If I am correct, the current provisions of Bill C-41, which entitles victims to give evidence, would be refuted. It is also a refutation of every single statement I have heard Mr. Rock make about the importance of victims being able to have a greater say in relation to the process.
We did not get a straight answer from the departmental officials. I believe there has been no amendment of that clause. I urge you to call them back and find out if that is so. If you make no other amendment, please prevent the betrayal of that promise to the victims in this country.
My next point is in relation to a Section 745 hearing which just finished. The jury literally asked whether there had been any previous decision in getting the case to the jury in the first place. At that time there was not because, as Mr. Obst correctly pointed out, it is every offender's right to have one of these reviews. It need not be an exceptional case.
This bill will change that. The process will change so that an individual judge make an decision on a basis which is extremely unwise; I believe the phrase is a "reasonable prospect of success". At the very least, I suggest you insert something that says no comment can be made to the jury about the fact that some judge has predetermined that there is a reasonable prospect of success. If you do not, you can imagine what the results will be for juries.
That is a fundamental mistake in the legislation. In the rather short time available to us in the House of Commons committee, we did not have time to go through the bill and appreciate that flaw. I suggest to you that that is a very grave mistake.
The final area is in relation to some of the amendments themselves. They are contained in our brief at pages 10, 11 and 12.
There are three major areas. We tried to draft a replacement section for the department, hoping to show that it is in fact possible. You will see that subsection 3 gives a different list of criteria which should be considered in deciding, first, whether this person should have the review and, second, what the jury should consider, assuming that a jury would still be making the decision.
This is the point I was trying to make at the outset. We should consider all the principles of sentencing, rather than someone's estimation of rehabilitation. This would restore the original balance of our criminal system and tell us why someone was sentenced in the first place.
Regarding exemptions, Chief Fantino has mentioned that the only suggested exemptions for this judicial review are multiple killers. We agree that if this regime is to continue in this way, that should be an exemption. However, there are a few other instances where public interest would prevent triggering of this review process. They are listed in our brief and they include, for example, someone who kills a police officer or a prison guard; someone who kills while on early release or on any form of parole; someone who kills more than once; and someone who kills during sexual aggression. In other words, we would narrow it down to those which are more likely the exceptional cases and not the cases where the public concepts of deterrence and denunciation are much stronger. We would leave it in a more restricted area.
Third, instead of leaving this to a judge, we respectfully suggest that you leave it to the minister to make the call. This form of ministerial discretion is contained in the Extradition Act. In my discussions with Mr. Rock, he suggested that that would leave too many instances where the minister would be involved.
I doubt that sincerely. You can check with the Department of Justice. The minister is called on to make a personal decision in relation to seeking assurances under section 6 of the Extradition Act that the receiving state will not impose the death penalty. Those instances would arise far more often than would cases covered by this bill.
If someone thinks that this exception is necessary, then it should properly rest with an elected minister of the Crown, rather than with a judge for whom accountability is something rather more remote.
We suggest that this bill is badly flawed and does not deal with the problem. The underlying concept leads to further destruction of public confidence in the justice system which I assure you is real. This kind of bill makes it worse. Even if the repeal is not done, significant improvements would still allow this sort of review in more narrowly defined cases. The public interest could be far better protected and the principles of criminal justice in this country could be more consistently upheld.
Senator Jessiman: Chief Fantino, how many chiefs are represented in your association? Are all the chiefs in Canada members of your group? Is there another association of chiefs?
Mr. Fantino: The Canadian Association of Chiefs of Police represents all the police chiefs across the land in all the provinces.
Senator Jessiman: Would that include all the provincial police, such as in Ontario?
Mr. Fantino: That is correct.
Senator Jessiman: What about the RCMP?
Mr. Fantino: They are included as well, yes.
Senator Jessiman: I would put the same question to you, Mr. Newark.
Mr. Newark: Our association is the single association of rank-and-file police officers. We represent approximately 3,000 of the 15,000 RCMP members.
As you may know, the RCMP Act, unique amongst other police agencies, prohibits them from having employee rights. We may well return here in relation to amendments to the Canada Labour Code. There is a movement growing within the RCMP. About 3,000 members have now formed their own association. They are members of the Canadian Police Association and virtually all other municipal associations, with the exception of Halifax and Calgary. The reason is that our constitution mandates that they be members of their provincial organizations. If they are having a dispute with the provincial organization, they are not allowed to belong to the national organization. We are an umbrella organization. We do not do labour negotiations.
Senator Jessiman: Of the others who are not members, you have no reason to believe that they would have any other ideas other than the ones you espouse? Or would they take a different stand?
Mr. Newark: Far from it, sir. In fact, with respect to the members of the Calgary Police Association, although they are not actual members of the Alberta federation and thus our members, they were with us last year when we went to Parliament Hill. Some of the guys in my group in particular were arguing the same positions. We have never heard a contrary position from any police officers who are not technically our members.
Senator Jessiman: You deal with provincial attorneys general and prosecutors. Do you know what their stands are?
Mr. Newark: Yes, sir. I have dealt extensively with the Ontario attorney general and solicitor general. Both Mr. Runciman and Mr. Harnick are on record, as is the Ontario legislature, calling on Mr. Rock to repeal section 745 of the Criminal Code.
I am aware that that is a similar position of the Alberta attorney general, although I am not sure the legislature passed a resolution. I believe that is the case as well with the New Brunswick attorney general, and I believe it is the case with the British Columbia government. I would be glad to get you the details, senator.
Senator Pearson: We have been interested in the differences between Quebec and the rest of the country. Both of your organizations have strong Quebec components.
Mr. Fantino: Yes, senator. The Quebec law enforcement folks are part of the Canadian Association of Chiefs of Police, and I am here to represent them as well.
Mr. Newark: The same is true of our association, senator. The exception is that the Sûreté du Québec are not members of the Quebec federation. They view an interpretation of their statute as saying that they are not allowed to be members of our association.
I have testified before with Mr. Turcotte from the Sûreté on a number of issues. I never heard him say that he did not agree with our position on section 745. The Quebec federation agrees with our position entirely.
Senator Pearson: They sit on your executive committee? You have a Quebec representation?
Mr. Newark: We have a Quebec vice-president. Mr. Obst is from Saskatchewan. His equivalent from Quebec is a gentleman named André Nadon.
Senator Pearson: Do you have any sense of why their statistics are so different from the rest of the country? I am talking about the 175 offenders who have been eligible to seek review under section 745. Seventy-six made application and sixty-three were heard. There is a tremendous difference between the response in Quebec as opposed to the other provinces. With respect to the reduction of restriction, there were 28 in Quebec, 7 in Ontario and one in Nova Scotia, for example.
Mr. Newark: I understand that the same statistics are actually true if you look at dangerous offender declarations. I have never actually gone and looked.
If you were interested, I would go to the Crown's office. I was formerly a Crown prosecutor. We had an experience in one province where the Crown did not oppose the section 745 applications. That may produce those statistics which are so different between Quebec and the rest of the country.
Senator Pearson: You speak about the distrust of the Canadian public.
I do not know if any poll has been done to show whether that is true. We certainly hear that from the press and I suppose there are some experiences, eventually, which can cause that. However, as an individual, I do not feel a distrust in the Canadian system, and I am hoping that I am not exceptional in that.
The Standing Committee on Legal and Constitutional Affairs is interested in getting to the actual kernel of what is going on and who these people are. What implications would there be if we did not make the changes which you request? Are judges likely to give different kinds of sentencing, knowing that there was no eligibility for parole and things of that sort?
Mr. Newark: It is a statutory penalty. A judge has no discretion. If a person is found guilty of first-degree murder, the penalty is set by the people of Canada through the Criminal Code.
I suggest that you look at the other options available within the administration of a sentence, short of changing the original sentence. There are things like security classification reviews which can downgrade a person's security level.
Our philosophical objection is to the fact that the system is saying one thing but doing something else. If the penalty includes an ineligibility period for 15 or 20 years, then that is what it should be.
I reiterate that this process undermines the sense of certainty which, in theory, most of us had taken for granted. The principles upon which we sentence people are pretty well known. However, they are definitely contradicted by what is found in section 745 and what is in this bill.
The clear solution is to get rid of section 745 or at least to remove this broad based application.
Senator Milne: I would not want you gentlemen to go away from here thinking that we could do what you want us to do. Either we agree to what is in section 745.6 or we amend it. We cannot throw out the section. That is not within our purview.
Given the choices that we, practically, have before us, which would you prefer? Should we agree with this bill or throw it out and leave section 745 as it is now?
Mr. Fantino: If I may respond, we do not see this as a "take it or leave it" situation, especially when one must take into account the fact that some very compelling arguments have been brought forward consistently for quite some time with regard to section 745.
How the Canadian public perceives the administration of justice is critical to your deliberations.
It is unconscionable in a civilized society that any killer would be given any benefit at all because the written word states that he or she "only" killed one person.
What do we say to terrorists, to contract killers, to those who kill the most vulnerable in our society, who prey on women, children and the elderly? They, too, may have killed only one victim. A victim is a victim. Every victim is deserving of equal protection. If someone kills more than once, then double the ante.
Our country is known for its civility, caring, regard for safety, security and value of life. Canadians go all over the world peacekeeping, policing and helping other countries develop democracies.
We also deal with prevention in our country. We deal with strategic law-making. There are people out there who kill because they are racially motivated. We deal with those folks now.
What about the wanton killing of police officers in the line of duty, the very people whom we entrust with a tremendous amount of responsibility? We expect them to go out there and put their lives on the line. We make no apologies for saying this, but being killed in the line of duty is not an expectation of being a police officer. Why have we evaporated that consideration for prison guards and police officers, the very people who are put out there to make our communities safe?
Senator Milne: It is my opinion of this so-called "faint hope clause" that it was enacted specifically at the urging of prison guards; that unless prisoners had some hope, prison guards would be in danger.
Mr. Newark: The Parliamentary Secretary for the Solicitor General raised that with me in the House of Commons hearings.
I speak frequently with people from the Solicitor General's union. I suggest you call people from the union as witnesses. Call the people who actually do the job. If they tell you what they tell me, they would ask not to be used as scapegoats for this legislation. This argument is illogical. The decision on whether the life sentence is 15 or 20 years is discretionary. This argument has been refuted by people who do the job.
Mr. Fantino: I would add an anecdotal example so as not to prejudice any outcome. A person killed a police officer in cold blood and received a 25-year period before parole. This person is now applying for the 15-year, early parole consideration. This person, while in a maximum security institution, in a two-year time frame, logged seven incidents of being officially intoxicated. He has been found in possession of contraband, refusing an order, refusing a urine sample.
This individual has been assessed as a continuous substance abuser while in a maximum security prison in this country. Long-term treatment is required.
Senator Jessiman: How does he get it?
Mr. Fantino: I am not finished yet. There are other problems noted here: His behaviour must be altered; his criminal behaviour must be altered; his thinking and subsequent behaviour must be adjusted, and on it goes.
Having said all that, this is the "exit opinion" rendered by an official who is putting this item forward in keeping with the application by this individual.
The assessment officer indicates that the behaviour of this present individual, unnamed, is totally satisfactory.
If this is not an abrogation of everything that is holy and decent about the principles of sentencing and any kind of flavour of justice in our country, I do not know what is. These are the kinds of frustrating things that all citizens and police officers must deal with. If it were up to the assessment officer, this individual would be out tomorrow. Obviously there is no problem with being intoxicated in a maximum-security institution in this country. I am appalled.
Senator Milne: I can understand why you would be appalled by that. I am, too. Do you think this person is likely to get early parole?
Mr. Fantino: To respond, I am appalled that he would even be considered. The cost on the taxpayers -- the whole thing is a farce. I should also tell you that he had a couple of children while he was in maximum-security prison as well.
Mr. Newark: Why would we have this hearing? Mr. Rock asked me the same question about Clifford Olson. He asked why I was making such a big deal about Olson's hearing because he will never get out.
I agree, but if that is the case, why are we holding this hearing? Why are we holding up our justice system and saying that this is what our system permits. Surely we are capable of crafting more sophisticated amendments rather than providing this complete right or this now-tinkered-down right for people who should not have this hearing?
Senator Milne: Are you telling me that you prefer this tinkered-down amendment to what is presently in the code?
Mr. Newark: There is no question that this amendment is better than what it is now.
Senator Milne: It is better than nothing?
Mr. Newark: That is not saying much when you get down to it. I would love to regale you with stories of other section 745 hearings. I have seen CSC reports that make this one pale by comparison, in the misinformation that is supplied.
The amendments which we have suggested in our brief -- we do prefer to see the bill repealed -- will go a long, long way to making it at least tolerable, although the section will still be there. We intend to press for the ultimate repeal. Then we can redo the penalties for murder if we must. At least these amendments would be far better than what is contained in the government's Bill C-45.
Senator Milne: Let us go back to any individual's chance of a successful hearing. By the way, we are assured that it is not actually 15 years. They can apply after 15 years, but if they do apply, the hearing may come up at the 18- or 19-year mark.
If you subtract the Quebec figures from here, from the people who were granted earlier parole, you would be taking 28 from 50. That does not leave much for the rest of the country. The numbers seem very small.
The Chair: Senator Milne, we have an update on those figures. As of October 28, 1996, 55 inmates have had parole eligibility reduced by the court. Senator Milne is addressing the fact that 29 of those 55 are in one province, that being Quebec.
Mr. Newark: I am aware of the statistical anomaly. I agree. I acknowledge that I am probably biased, but I think it makes the case for us. What a waste. What a waste of taxpayer's money. What a tragic waste and victimization to put people through this, too.
I am also aware of the other statistics which I presume you have. They are also running at a 25-per-cent failure rate with those people who have actually been released.
Senator Jessiman: What do you mean by that?
Mr. Newark: The chairman of the National Parole Board gave those figures before the justice committee. The number of those who have been physically released is 26. One is dead. The pool is 25. Three of those have been returned for violations. One is charged with armed robbery. One, we do not know where he is. He is on the lam somewhere.
Our point, frankly, is that the issue is not whether these people can be dealt with on parole. Rather it is the nature of what they did. As a people, we set the penalty component for that crime at 25 years. It has gone out of whack. Even so, the system is running at a 25-per-cent failure rate.
Senator Jessiman: We were also told that none of them have committed murder a second time around.
Mr. Newark: I am not sure how comforting that is. The next issue of our magazine is about the corrections and parole industry. Over the last 10 or 12 years, if you include homicides and what the CSC defines as serious offences -- attempted murder, kidnapping, armed robbery -- approximately every day and a half in this country, over the last 10 years, federal prisoners on early release have either murdered, mugged, raped or robbed an innocent Canadian citizen.
With the greatest of respect, this system is a failure.
Senator Jessiman: You have made these presentations. I assume that these presentations were not just drawn by yourselves. You are alone here but they have been approved by your executive committee, I presume?
Is it correct that the general membership agree with what you are saying here? It is not just the executive committees of your associations? Am I wrong?
Mr. Obst: In 1995, we had a section 745 judicial review in Saskatoon, Saskatchewan. During the week of the review, as it was being held, every police officer in the province wore a badge that had the words "Section 745" with a red circle around them and a red line through the circle. Every municipal police officer wore one of those badges.
This issue has been debated within our membership for close to three years now. The position that we bring forward is unanimous.
Senator Jessiman: Are the chiefs the same?
Mr. Fantino: Yes, senator. We have formally provided to the Department of Justice a resolution going back a number of years now for the repeal of section 745. Our position has been consistent since.
Mr. Newark: We have formally moved, at our last two national conventions, a resolution which is even more broadly encompassing than section 745. It calls for the repeal of section 745. Both years, it passed unanimously.
Mr. Fantino: I would leave with the committee a copy of the actual resolution. This goes back to 1994 at our Canadian Association of Chiefs of Police conference, speaking directly to the repeal of section 745 of the Criminal Code. I would be happy to leave that with the committee.
Senator Doyle: Were you invited by the ministry or any of the law-givers here to take part in consultation on the drafting of this particular law?
Mr. Newark: Senator, I was fairly directly involved. As you can tell from my remarks, they did not take a lot of my advice. Our advice to them had always been to repeal.
If they were to be pragmatic and not repeal, then we provided a set of amendments for what we think it should look like.
I had to go looking to update this brief for the Senate. I took the amendments that appear on pages 10, 11, and 12, from a personal note that I sent to Mr. Rock's staff when they asked me for my suggestions on what section 745 should be like before it was presented to the House.
I cannot complain about Mr. Rock's commitment toward consultation. I just wish I was more persuasive at times.
Senator Doyle: Would your colleagues agree?
Mr. Fantino: Senator, we, too, have been involved in consultation, and we have been consistent in our delivery of the message. We have been lobbying actively, bringing forward community concerns and our professional opinion on this issue, and we have been consistent on the repeal of section 745. We have not embraced changes other than the repeal of section 745.
In fairness to the minister, one must admit, and I do, that some of these proposed changes are better than nothing, as was stated earlier. However, they are not in any way complete, nor do they even address some of our concerns on these issues. Canadians against Violence Advocating its Termination Everywhere, CAVEAT, at a major conference two years ago, produced a formal resolution again stating repeal of section 745 of the Criminal Code. The message has been there, and we have delivered that consistently.
Senator Doyle: Would you have preferred that, instead of going into this narrow area of section 745, the government had undertaken a survey of the whole parole situation in all of its aspects?
Mr. Fantino: That is a good question, senator. We, of course, are concerned and conscientious about any issue having any kind of impact whatsoever on public safety, security, and quality of life. We have obviously officially and formally advanced to you and to other committees in government our position on the repeal of section 745. We have also been working on a whole host of other initiatives -- participating, consulting, recommending -- that will hopefully, as we cooperatively work towards a safer Canada, have some kind of significant impact.
Mr. Newark: Ironically, the other bill was also called Bill C-45, amendments to the Corrections and Conditional Release Act. This committee studied it when it studied Bill C-41, and I tried to persuade you that it should not be passed. There is also Bill C-53, which is in relation to the Prisons and Reformatories Act. Bill C-55 is currently before the House, and we have been pushing for it for a long time, on high-risk offenders.
Our original suggestion was that we should examine the whole area under parole and penalties for murder. It may well be, as Chief Fantino said, that we want to change the way that we impose penalties for murder. For example, we could have consecutive periods of ineligibility where there were multiple homicides, rather than playing around with exemptions for section 745 reviews. Those suggestions have not been successful.
We respond to what is produced by the government, and we do that to the best of our abilities. At the same time, we continue to push it. It has been done in a segmented, component approach as opposed to an overall approach. We are making some progress, in our judgment, in improving the overall system.
The Chair: We will remind senators that tomorrow's panel will be on victims of violence. The groups Victims of Violence and the Canadian Resource Centre for Victims of Crime will be here. CAVEAT, unfortunately, was not able to attend.
Senator Beaudoin: I was tempted to start with a debate on the philosophy, but we would be here for three weeks.
The judicial world and the legal world are huge. When we are talking about the system, I always say that criminal law is a world in itself. We have the judicial system. We have the Criminal Code. We have the sentencing. We have parole issues.
Do you accept the parole system in principle? If so, what are the limits that you would put on the parole system?
I have the impression that the general public in our country and in some other countries are in favour of a parole system and others are not. Some may be in between. They may say, yes, but we are too generous.
Where do you stand?
Mr. Newark: My biggest worry about the ongoing debate is that if we do not fix the parole system, more and more people will say, "Let's get rid of it." That would be a terrible mistake, in my own personal judgment and in that of our association. We have never called, and I doubt we ever would, for the abolition of parole. Obviously, the best public protection you get is when someone changes their behaviour from criminal behaviour to productive behaviour.
Equally obvious, the best method of doing that is reintegrating or, more likely, integrating someone, other than simply opening the prison door and letting them go. The trick comes in picking the right people and the right circumstances for parole. That is why we have made recommendations over and over again for targeting the worst kinds of offenders. This is the high-risk offender package.
It is no accident that the crime rate in this country -- the homicide rate, the violent crime rate, and the violent crime numbers -- have gone down in the last three years. I am not plugging our magazine, but you will see in the next issue the statistics which bear that out. In that same time period, the detention rate -- that is the process by which we keep for their full sentence the worst offenders -- has quadrupled. The violent repeat parole grant rate has gone down. We are doing a better job of keeping the worst offenders off the streets and eliminating their opportunity or their head start to commit new crimes. As result, the violent crime rate is going down.
That, I would say, is the underlying philosophy. It makes very good sense. It is short-sighted not to have an early release system, but you should pick the right people for it, based on, frankly, their past performance, either in the crime they committed or, more likely when dealing with generic parole, their past performance on parole.
It is not difficult to find the cases. We could give you examples where our system does not treat people any differently if they have committed 10 crimes on previous early releases. They are entitled, at the same public expense, to the same parole considerations as the first-time offender. Our law is so goofy that if you commit a crime while on parole, you get a benefit in determining when your next parole eligibility date is over someone who commits a first offence. I believe we had the discussion on Bill C-45 when we were urging you to make an amendment to change just that.
That is still the current law in this country. If you commit a crime on early release, you have a potential parole eligibility benefit as compared to the guy who commit a first offence.
These are the kinds of things that need to be changed to maintain a parole system as a component of our overall system.
Senator Beaudoin: How do we learn? Is it by our mistakes or by our successes?
Mr. Fantino: Learning by mistake is an awful way to learn. Some of the mistakes have been costly, even deadly.
Going back to what Mr. Newark has said, we must look at this from the point of view of the criminal, many of whom believe that entering into the justice system is the price of doing business.
Parole, in my respectful opinion, should not be absolute and should always be conditional on many things, including the person's desire, ability and willingness to participate in those kinds of programs that will ultimately render them productive citizens. Do you know how many people we recycle? This is the frustrating thing for police officers. We deal with the same people all the time.
It seems that entering the criminal justice system, for those people who are desirous of committing crime, is like going to a bargain basement. They are discounted at every stage of the process, from the time they arrive at the police station until the time they leave jail, if they ever go to jail.
We spoke earlier about confidence in the system. One must look at these issues from the point of view of the victims or potential victims. There are vulnerable groups which are being preyed upon. People are scheming and planning every imaginable thing to victimize them. It is the criminals who are getting all the breaks, not the victims -- not yet anyway.
Senator Beaudoin: Can we learn from experiences in other countries or is this very particular to a country? Some countries are more violent than others, obviously. We may make some many comparisons between our system and that of other countries. Have we learned anything from other systems?
Mr. Newark: I was in New Zealand not long ago. I was taken aback at the similarities between our systems. In many ways, we are on the leading edge in many sentence administration or corrections parole practices. The one improvement I would make, if it were up to me, would not be in this bill, the Criminal Code or the Corrections Act. The change I would make which would improve public safety more than anything else is in privacy legislation in this country.
You asked if there was anything we could learn from our mistakes -- if only we would learn from our mistakes. I also work with a victims' organization, watching the same mistakes happen over and over. In my judgment, it is perpetuated because we have a system which prefers not learning from its mistakes but not even admitting its mistakes. If you look at any correctional service report in relation to a section 745 hearing, or, with respect, parole hearings themselves -- and they have gotten better recently -- or any of the reports that come out after what are called serious incidences, you will see the censor's pen has been busy editing out information.
There is a motion which Mr. Lee is bringing in the House in relation to committees of Parliament being entitled to have that information. I know about this because when I was a prosecutor I brought one such case to the Justice Committee when it was chaired by Dr. Horner. It was the case of Daniel Gingras. They looked into the matter and asked to see the report to verify how this person had been given a day pass. He was a career criminal who had committed murder while out on early release in Montreal. He was transferred to Alberta and given an escorted temporary absence. He was allowed to pick his own guard to go to West Edmonton Mall to go shopping as a reward for being an informer. After he escaped and killed two people, there was an investigation. When the members of Parliament received the report of the investigation, the report had ugly black marks stroked across it from the censors' pen. It took over a year for that committee to get sufficient rulings, as well as a change of ministers with the appointment of Mr. Lewis, before an agreement was reached that members of Parliament should be entitled to know the truth about what the government did. They got to see it in camera. That was followed up in another case which also involved a litany of errors.
Senator, if we could learn from our mistakes, I would be happy. However, we have to admit them first.
Mr. Obst: Senator, I would not want you for a moment to think that police officers across the country believe that the answer to any criminal activity is to lock an individual up and throw away the key. That is certainly not the case.
My colleagues and I spend a great deal of time with first offenders and even repeat offenders in some circumstances, attempting to rehabilitate, even without prosecution in some instances, through the many diversional and mediation-type processes that we have in place.
In Saskatchewan, we have started not only to learn from other countries and provinces but from other cultures by using the aboriginal sentencing circumstances in the white-society application. We call it a community sentencing circle. It is something other than a prosecution. I am not here to ask you to lock up criminals and to throw away the key because that is not the answer.
To come back to section 745, let there be no misunderstanding, we are talking about first-degree murder for the most part here. Over the next 15 years or so, there will be only about 600 individuals who even qualify for these judicial reviews. This is a very small component of the criminal element. We are spending a great deal of time talking about them. A great deal of cost and effort is being put into them. Those are the people we are concentrating on right now. They are the people who plan, calculate and premeditate the taking of an another human being's life.
I do not mean to confuse that with a manslaughter charge related to a domestic violence situation, something which I do not want to minimize in any way. We are not talking about a bar-room brawl where somebody throws a punch and an individual bangs their head and dies. That is not what we are talking about. We are talking about first-degree murder.
I do not want there to be any misunderstanding about the severity of the offence to which section 745 pertains. When it comes to the planned, premeditated and calculated taking of a human life, that is when police officers say that, for even one human life, 25 years is the absolute minimum time that a person should be incarcerated.
For the most part, we are in agreement that life in prison is the answer. For the point in question, 15 years certainly does not address it.
The Chair: Honourable senators, I have asked representatives of the Department of Justice to be here throughout all the deliberations so that if there is any conflict between the information they gave us and the information given today, then we can clarify those issues.
Mr. Newark, you gave a number which surprised me. Can you clarify this? I understand that, of the individuals who have been granted parole under section 745 and there have been some 55, only 7 have reoffended. That is nowhere near 25 per cent.
Mr. Newark: The numbers that I am referring to came from the chairman of the National Parole Board when he testified before the Commons Justice Committee in April or May. I have them in my office and I would be happy to send them to you. I will also track down the Hansard in which that evidence is found.
Those were not my numbers. I was surprised when I heard them. The person who put them forward was examined carefully by a member of the Reform Party who did the same calculation.
The Chair: Thank you for being with us today, gentlemen.
The committee adjourned.