Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 37 - Evidence
OTTAWA, Wednesday, November 27, 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 3:17 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: This afternoon we are dealing with Bill C-45. I will adjourn this session at 4:45 p.m. so that we can return to the Senate Chamber, where I understand whips from both parties are desirous of our presence. I hope that we will be able to hear from Professor Patrick Healy of McGill University and Professor Julian Roberts of the University of Ottawa first, and then we will hear from the Canadian Bar Association after we have returned following the votes.
We have at the table now Professor Patrick Healy of McGill University. Welcome.
Professor Patrick Healy, McGill University: Madam Chair and honourable senators, it is a great pleasure for me to be here. It is a particular pleasure for me to accept the invitation of the Senate to testify on Bill C-45.
I am a professor of law at McGill University. I teach criminal law and related topics. I should like to make a few quick points, and, if I can answer your questions, I will do the best I can.
It seems to me that Bill C-45 raises two questions for your consideration. The first is the question of principle, and the other is a question of procedure. The question of principle is whether the policy of the law previously enacted by Parliament in what is now section 745.6 of the Criminal Code is a good policy that should be maintained. The question of procedure is whether it is nonetheless desirable for adjustments or amendments to be made to the manner in which applications under section 745.6 are considered.
On the question of principle, the Government of Canada, in Bill C-45, has said that the policy behind section 745.6 is, in its view, a good policy. I will come to that policy in a moment. It has also said in Bill C-45 that even though it might be a good policy, there are some adjustments that should be made to strengthen that policy and to make section 745.6 a measure which enjoys the confidence of all Canadians.
What is the policy behind section 745.6? Under the law as it stands at the moment, section 745.6 gives a person convicted of murder, after a lapse of 15 years, what I might call a chance at a chance -- that is, a chance taken before a jury to have his or her case for reduction in parole ineligibility considered by the National Parole Board. It is a chance at a chance.
What does Bill C-45 do? It changes it so it is not a chance at a chance, but a chance at a chance at a chance. It builds in an additional level of screening for deserving cases. As well, from the class of persons who might seek review under section 745.6, Bill C-45 subtracts those who have been convicted of multiple murders, so there is a reduction in the number of people who might seek a chance at a chance at a chance.
What is the evidence we have with respect to the operation of section 745.6? There is no evidence, I would suggest to you, honourable senators, that the measures in the Criminal Code at the moment have been a failure. Of all the cases that have been considered so far, it is true that a majority of applications have succeeded, but it is equally true and far more important, I would suggest to you, that the number of people whose parole dates have been advanced have not reoffended in any degree that should cause alarm to the Parliament of Canada.
I submit to you that the policy underlying section 745.6 has been proved a good policy in practice. This is not to say that every person who has succeeded in an application of section 745.6 has gone without any form of blemish, but there have been something in the order of 200 successful applications from which there has been one charge of an indictable offence, two or three cases of breach of parole conditions, and perhaps one or two pending charges. I emphasize that none of these are cases involving a reoffending homicide.
It would appear that, on the numbers I have just recited to you, the policy of section 745.6, which does include an element of risk in releasing convicted murderers before their full time has expired, has served Canadians well. There has been no appreciable threat, and I emphasize this as strongly as I possibly can, to the protection of Canadian society.
You might have heard in proceedings before you a great deal of talk about different aims in sentencing policy in Canadian law. There is no aim higher than the protection of the Canadian public. I would suggest to you that there is no empirical evidence to suggest that the protection of Canadian society has been diminished by the application of section 745.6. I would suggest, in fact, that section 745.6 is entirely consistent with the protection of the Canadian public.
If the policy of the law is to give the convicted person, after 15 years, a chance at a chance at a chance, let us consider for a moment precisely what that means. It means that, having regard to the conduct of the offender in prison and a variety of other factors, there is reason to believe that given the protection of the Canadian public it may be safe for this person to be considered for earlier release. This does not mean that a person who has been sentenced to life has his sentence in any way commuted from that principle. The only way in which you can eliminate a life sentence is by a pardon, and that simply does not occur. A life sentence remains with someone, whether or not that person is released for life. The policy of section 745.6 allows the representatives of the community, through the jury and through the National Parole Board, to consider whether there is something in the circumstances of the offender that makes it consistent with the protection of the Canadian public for that person to be considered for early release.
If you eliminate all possibility for review of parole ineligibility, the policy would mean that it does not matter who the offender is, murder is an offence for which there would be a minimum term of say 15 or 25 years, depending on whether it is first or second degree. Not all murderers are alike, even though murder is perhaps the most serious offence known in our criminal law.
Consider a contrast between two different kinds of cases. On the one hand, you have the Olsons and the Bernardos. Under no circumstances would either of those offenders have any chance of a successful review of the period of parole ineligibility. On the other hand, consider the possibility of a case of what is sometimes called in the press "mercy killing". These are often tragic cases in which the prosecutor often has no alternative but to charge murder because there is evidence of an intentional killing. However, the circumstances in which those kinds of intentional killings take place are not comparable to the kind of killings with which Bernardo and Olson have been convicted.
Is there not, in the policy of Canadian criminal law, room for us to consider, at some point after a substantial period of imprisonment, whether there is any purpose being served by the continued detention of a mercy killer? I would suggest to you that there are sufficient differences in the circumstances of the offences that there should be some latitude in the law to allow for review at a suitable date. However, I emphasize again that never will you find the likes of Mr. Olson or Mr. Bernardo being released under an application brought through section 745.6 of the Criminal Code.
Going away from policy and on to procedure, it is true that while Bill C-45 maintains the policy that was originally enacted, it has made some changes of a procedural nature, and these are important. I have already mentioned one which is to exclude a class of offenders from making an application under section 745.6, and those are multiple murderers.
The procedural changes proposed in Bill C-45 are basically measures which would allow for additional screening through a preliminary application to a judge. A judge would be required to decide whether there is a reasonable prospect of success in the application. Only if the judge decides that there is a reasonable prospect of success will the convicted person have an opportunity to make application before a jury.
Consider carefully exactly what the function of the judge is in this matter. The judge will rule out any case in which there is no hope of a successful application under section 745.6. You should not think for a moment that the test of a reasonable prospect of success means that the judge decides whether the accused or applicant is likely to succeed. he judge decides only whether there is a case to be put for the consideration of the jury. It will be entirely for the jury to decide whether or not the evidence warrants favourable consideration.
Another procedural change made in Bill C-45, would be that the jury -- assuming the case gets to the jury -- would have to decide the matter unanimously. This change and the screening function performed by the judge provide, in my submission, protection for the families of victims. In other words, these two measures will ensure that only serious cases -- cases that have a chance of success -- will go forward for consideration ultimately by the National Parole Board.
Although the provisions in this legislation are not entirely easy to follow in all respects, I have no doubt that there is additional protection for the families of victims in these matters through the admissibility of evidence which can be brought from the families of victims. Under a recent decision of the Supreme Court of Canada in Swietlinski, complemented by the measures of Bill C-45, the judge will have a discretion to admit the evidence of families of victims.
In conclusion to these preliminary remarks, I will reiterate what I said at the outset. You have before you a proposal that the policy in section 745.6 remains a good one and one that should be entrenched in the Criminal Code. You also have proposals that would introduce procedural changes which ensure that only the most serious and deserving cases will go forward for consideration by a jury and by the National Parole Board.
On balance, senators, I suggest to you, with all respect, that this is a measure which deserves your careful and favourable consideration.
The Chair: Thank you, Professor Healy.
I should now like us to hear from Professor Julian Roberts of the University of Ottawa because I think that when we ask our questions we might want to get replies from both speakers.
Professor Julian Roberts, University of Ottawa: Thank you, senators, for the invitation to speak to you. I should like to spend 30 seconds telling you who I am and why I have an interest in this subject. I have been working in the area of sentencing for about 15 years. I teach sentencing courses and I worked for the Department of Justice on the Sentencing Commission in the 1980s. It is an area I have followed carefully.
I am also interested in the issue of public opinion; public attitudes toward sentencing, parole and punishment. I just finished a book on this subject. That is an area I have been working in since 1976. Every academic has his or her area of expertise, and some have many areas of expertise. I have just this one.
In my view, the idea of section 745 is inherently sound; it is a good one. I think it could be made more acceptable politically and publicly, but I believe that the idea of providing lifers with this additional hope, as it were, is inherently sound and consistent with our principles of justice.
My bottom line about Bill C-45 is that it should be passed. I think it is sound. I disagree fairly strongly with a couple of elements of it, but in light of the climate, in light of the criticism we have had of section 745 as a provision, the bill is a good way of retaining the essential features of the provisions of section 745 while at the same time addressing some of the concerns.
I will explain how I arrived at these two conclusions. First, there are many myths about section 745 bandied about in the media, and it is worth dissipating a couple of them. First, if everyone got a positive response from juries at the 15-year mark, I would be opposed to section 745 because that would suggest that there is something wrong with the mandatory penalty of 25 years without parole. If no one got a positive response from juries at the 15-year mark, I would also be opposed to section 745, because that would seem to be a waste. The public would basically be saying, "Stop bringing these people before us because we do not want any of them to have an earlier application."
However, that is not the case, and this is an important feature of the functioning of section 745 which has passed somewhat unnoticed. Juries across this country have been reacting to these applications on their merits. Some people have been given the green light to make an earlier application at the 15- or 16-year point while in other cases juries have said that the applicants should wait a year, two years, or three years. In some cases, the applications have been denied outright, and in some cases the decision has been deferred, according to the provisions in the Criminal Code. To me, that is an interpretation that the system is functioning well in that juries are reacting as they should to the merits of the specific applications. It is a bit like a sentencing provision in which judges range from the minimum penalty to the maximum penalty on the scale. In other words, they are reacting to specific cases and not just jumping to the minimum or the maximum. That is worth noting. I believe that means that the Canadian public, as represented by these juries, are reacting with an appropriate response; denying in some cases and providing a reduction in others.
One of the criticisms of section 745 and of this particular bill is that they are contrary to the spirit of the Canadian public who do not want lifers to have this possibility. I have heard people say that section 745 is undemocratic because the people do not want this mechanism in the Criminal Code. I think that is crazy, with all due respect to people who hold that view, because if people do not want to let lifers have an earlier application, how is it that so many of these applications are positive? In about 48 per cent of the cases, according to the statistics I have seen most recently, juries across this country have allowed the individual to apply at the 15- or 16-year point. That seems to me to be a sign from the public that they accept the possibility that there are cases which may merit an earlier parole eligibility review.
That is a point worth making. I do not think the provision is inconsistent with public opinion. For people to say, as some critics of section 745 have, that it is against the will of the people, seems to me to fly in the face of the facts. If every jury were responding by denying, I think there might be some merit to that view, but that is not the case.
This, of course, produces a paradox. If everyone is opposed to parole for lifers, then how is it that the juries are reacting differently? That paradox can be resolved when you consider the methodology which people use to answer the question of where the public stands. There was a poll conducted five years or eight years ago by the Sentencing Commission. A representative sample of the public were asked: "Are you in favour of parole for people convicted of murder?" Eighty per cent said that they were opposed. How is that consistent with the fact that juries are reacting in a different way?
I believe that the answer lies in the observation that juries obviously have more information at their disposal in section 745 applications than do members of the public who just answer simple, uninformed questions on a public opinion survey. I do not think, therefore, that this application procedure is inconsistent with public opinion. I think the public are apprehensive about the possibility of having a feature of this nature, but they are willing to countenance earlier parole eligibility, and that is reflected in the decisions of the juries to date.
There are two principal grounds from the perspective of sentencing theory to oppose the possibility of early parole for people who have been sentenced to 25 years or a term of that very long nature. They are the grounds of desert and dangerousness.
It has been argued that, on the ground of dangerousness, this provision is creating a danger for the Canadian public; that when these individuals are released, if they are released by the parole board, they thereafter constitute a threat to society. The evidence for this is just not there. As far as I have seen in the statistics, of the 69 positive responses and releases to date, we find one armed robbery conviction. I am not even sure whether it is a conviction or a charge. To make the argument that this group constitutes a danger to society seems not to be supported by the facts.
Turning to the second ground, even if they are not a danger, some people can argue with some merit that, on the grounds of desert, they should not have the ability to apply to the parole board before the 25-year period in terms of first degree murder because, somehow, the 25-year term is deserved and anything less than 25 years would not reflect the severity of the crime which, of course, is the most serious conceivable.
There is some merit to this argument, but the Canadian public would likely react by saying that, although most 25-year terms are given in cases where that is the appropriate period of parole ineligibility, there may be exceptional cases and that they would be willing to have those exceptional cases considered on their merits.
The unfair aspect of the bill and the aspect with which I do not agree is the retroactive nature of the screening and the unanimity provision. It can be argued that the cases with merit will still proceed; that is fine. However, shifting the threshold from two-thirds majority to unanimity will clearly result in fewer positive results from the applications. That seems to me to be unfair. These individuals may have been sentenced 10 or 12 years ago under a set of conditions and with a set of expectations and conditions which will no longer apply. That is moving the goal posts. If that unfairness does not give rise to a Charter challenge, then perhaps we need a new Charter. It is clearly unfair and it will cause some problems later.
My general reaction, however, is that the bill will permit juries to make decisions based upon the merits of each specific application. While I might prefer to have the retroactive nature changed, this is an appropriate way to preserve the spirit of the section 745 mechanism without losing the details of which people have been so critical.
Senator Beaudoin: At our last hearing, we heard from the victims of crimes. Some would like to revert to the situation of a firm 25-year period. I am not an expert on criminal law, so I would like to know from both of you what the situation was at first.
When we abolished the death penalty in 1976, we provided at the same time for the enactment of section 745 which contains the possibility that, after 15 years, a process may start which would lead to some other conclusion. Was there a period in our criminal law history where the sentences were applied firmly in that a sentence of 25 years meant a sentence of 25 years with no possibility for early liberation or parole?
It is my impression that there was no such thing in 1976. This bill that is before us, Bill C-45, is amending section 745. If this bill is not adopted, of course, we go back to section 745.
I should like to know first whether there was a moment in our criminal law when sentences of 25 years were applied firmly.
Mr. Roberts: I am not an expert on the history of the criminal law, but to my understanding, that is not in fact the case. A 25-year term, for example, would be subject to the provisions of the Parole Act.
Senator Beaudoin: It has always been the case. That is what I thought.
Mr. Roberts: Yes. There was no parole-free period for long-term offenders, lifers specifically.
Senator Beaudoin: In other words, if we were to get rid of section 745, there would be a vacuum. So we would have to do something. We would have to legislate and to say that the sentences are applied, period, if ever the government wishes to go back to the application of firm sentences.
My second question is on the jury. Under section 745 of the Criminal Code, 1976, the juries functioned under the requirement of two-thirds agreement. This bill calls for unanimity. Do you think that represents an improvement? Of course, it is more difficult, but does it represent an improvement?
Mr. Roberts: It is a defensible shift. Effectively, the system will be saying to the public that, if you want this individual to have the benefit of an earlier parole than was apparent when he or she was sentenced, the decision is in your hands, number one, but you must agree on it unanimously. By raising the threshold in that sense, it makes the decisions of these juries more defensible.
One of the criticisms that we have heard of successful section 745 applications to date is that the boom was too low with the two-thirds threshold. Unanimity minus one might be preferable to prevent the hold-out scenario. However, by pushing it to unanimity, the section 745 provision will become far easier for the public to understand as a legitimate criminal justice mechanism.
Mr. Healy: I agree with my colleague. That is true of the unanimity function. It is equally true of the judicial screening function. I said that the change being proposed in Bill C-45 will move from giving the applicant "a chance at a chance" to "a chance at a chance at a chance."
By introducing the judicial screening function and by raising the requirement to a unanimous jury, the screening function at both levels is that much more rigorous. Do not forget that, even if the applicant succeeds at getting past the second stage, all that the applicant has at that point is a chance to go before the parole board.
I agree entirely with Professor Roberts that this is a mechanism which should give greater confidence to those who observe the administration of section 745.6.
Senator Doyle: Mr. Healy, you are assuring us that there is no likelihood that Mr. Olson or Mr. Bernardo, who are the monsters of choice at this time, will be released. However, we might have mercy killers being given legitimate second chances.
How would you equate this possibility with the controversy that is going on right now over the recent paroling of the young man who was one of the killers of Betty Osborne? You will remember she was the young aboriginal girl who was set upon by a group of young playboys who raped and killed her. One of the murderers was out on day parole when the fact that he might soon be released on general parole became public knowledge. There was such an outcry from the public that he was put back in jail and is currently awaiting a decision on what parole device will or will not be used in determining his future. That is going on while we are considering this bill. How does that fit in with the more rigid picture you gave us of mercy killers versus monsters?
Mr. Healy: Senator Doyle, let me try to answer. I will not give you a roundabout answer, I will come as directly as I can to the various points that you raised.
The point I was making with Olson and Bernardo and the hypothesis of a mercy killing case is the very point that was made by my colleague, that, while murder is the most serious offence that we have in the Criminal Code, not all murderers are alike. There may be an offence that is of equal gravity in any instance, because it is the most serious, but the individual circumstances surrounding the offence and the offender may vary. It is that which section 745.6 and Bill C-45 allow responsible authorities to consider.
Correct me if I am wrong, but my recollection is that the persons held responsible for the death of Helen Betty Osborne were held responsible for manslaughter and not murder.
The Chair: That is correct.
Mr. Healy: If that is correct, we are talking about an entirely different set of procedures. We are not talking about section 745.6 at all. We are not talking about judicial screening or even the jury procedure that is described in section 745.6 at the moment. We are talking about an ordinary operation of parole procedures.
Senator Doyle: I did not suggest for a moment that he had faced the same charge. I said that this was a part of the parole picture. I do not think, for the public, that there is that much difference in attitude towards punishment, whether you are talking about someone charged with manslaughter in the extreme circumstance in which that young man was involved or you are talking about Mr. Bernardo. I think neither one is an attractive fellow.
Mr. Healy: There will not be any argument about that.
Senator Doyle: However, one is being handled under the thought that we must find a way of getting him out. When he gets out, the public is offended, and he is sent back in; a committee is then set to work to determine how they can either dole out mercy or tighten the chains. So you admit that how the public reacts is something that must be taken into account.
Mr. Healy: Perhaps Mr. Roberts can add to this, but let me say again that there are two strikes against the likes of Mr. Olson and Mr. Bernardo. First, they are multiple killers, so they are ineligible to start with under the proposals of this bill. Second, it is unlikely that any responsible decision-maker at any stage along the line contemplated in section 745.6 would give them a favourable result.
The problem you are pointing out is what is the difference between murder and manslaughter so far as public perception is concerned. In the past, Parliament has drawn a line between the two, murder being the subject of section 745.6 and manslaughter not being therein included. Manslaughter can be anything from something close to murder to something close to accident. I assume that Parliament is satisfied that manslaughter deserves a much more lenient treatment and should be exempted from the strict controls that are applied in section 745.6.
Senator Doyle: However, not always. Often, people think that the crime charged against an accused was less than he would normally have been charged with, because, for instance, sometimes the Crown needs the testimony of an accused person or perhaps needs cooperation.
Mr. Healy: One is stuck, in effect, by the fact that the conviction was entered for manslaughter.
Senator Doyle: Does one case suggest that we are approaching parole in one way and another suggest that we are looking at the same type of prisoner, the same type of person confined, but in a different context? Would we not be better off right now spending our time re-examining the whole parole purpose and methodology? Certainly, as long as I have been interested in this field, I have been puzzled by the contradictions in parole.
Mr. Roberts: I take your point, senator, about the atmosphere of antipathy towards parole that is created by these specific cases.
First, there is research which shows that the public does make distinctions between offenders of differing culpability. For example, first degree murder, as we know, carries a 25-year parole ineligibility period. However, not all first degree murderers are equally culpable. The public does take into account these degrees of culpability. The public would certainly understand that there are some people serving terms that might be able to be released, or make applications, earlier than others.
Second, we also need to realize that there is a distinction between parole as a general feature and this specific provision. I believe that the notion of unanimity, which is where you started your question, provides the public with the confidence in this three-stage operation -- the review, the jury decision and the parole decision thereafter. If the second stage is positive, it provides the public with a degree of confidence. It is not bureaucrats whom the public are a bit suspicious of -- parole boards members and so on. The public is depending on members of the public and the unanimous decision by jurors drawn from the communities in which the offence occurred. If that does not promote public confidence in the system, I am not really sure what will, because it is essentially incorporating the public into the decision-making, which is what they frequently say they want.
Senator Doyle: Mr. Healy, are you equally satisfied with the public's attitude toward the law?
Mr. Healy: This is an area of Professor Roberts' undisputed expertise, but I should like to second what he said about confidence in the decision-making process that is described in section 745.6 as it is and in the bill as it is being proposed to you. There are three possible stages of screening: the judicial screening, the jury, and the parole board itself. It seems to me that you could not have a stronger basis for confidence in public decision-making than what is being described there. I do not know if Professor Roberts shares this view, but I would criticize Bill C-45 as perhaps going too far by including the stage of judicial screening, except for one thing: without that phase of judicial screening, you would expose the families of victims to an automatic hearing before a jury and you would force them to go through the evidence in a case that might be hopeless. This screening at least provides some measure of protection for them. However, I repeat, taking the three together -- the judicial screening, the jury and the parole board -- you could not have a set of decision-making steps that would give the public more confidence in the acceptability of the results.
Senator Jessiman: You said that the law would not apply with respect to Olson and Bernardo, because they are multiple murderers, but this law has not come into effect yet and this is not retroactive, so the old law will apply, and 15 years later, they could apply. Today, everyone knows about Olson and Bernardo. I do not know 15 years from now how people will feel. They may be exemplary prisoners, and they may convince someone in the prison that they are just ready to go back to society and they would have the right to do so.
Mr. Healy: I take your point about retroactivity and I concede that there is an issue there that may warrant examination. However, bearing in mind what I just said, and obviously it is a matter of opinion, I am prepared to bet that today or even 15 years from today there will be confidence in the process.
Senator Jessiman: You will be here then; I will not be here.
Senator Gigantès: Yes, you will.
Mr. Healy: Whether or not we are here, there will be confidence in the process that is described in this legislation, which is judicial screening, the jury as representatives of the public, and the parole board as representatives of the public. Let us trust them to make an acceptable decision.
Senator Jessiman: Why is it, professor, that the police association, to a man, wants section 745 taken off the books? They are as close to the situation as anyone could be. They are all against it, the chiefs and the police.
Mr. Roberts: With all due respect, senator, you say they are as close to this as anyone; I do not see them as being as close as that. This is a question of criminal justice policy. Criminal justice policy is determined by Parliament, by the government, by the elected representatives, and not by any special interest group, whether it is a collection of university professors or CACP.
Senator Jessiman: We are talking about guards and police officers. How much closer can you be to the kinds of people who will come out?
Mr. Roberts: It is a question of how you react to long-term inmates and a question of institutional security, which, if these people are allowed to leave prison, is a question that concerns everyone. There are other issues as well. There are legal issues that are addressed by the Canadian Bar Association. No individual or group has a mandate to speak for the country on this issue. You must take a number of different constituencies into account. I do not see any reason to privilege one particular group over the others.
Senator Gigantès: We also heard from people who are concerned with lifers. They even brought a lifer here, who has come out and led a good and productive life and is now an employer of people. They feel that for some lifers who can be rehabilitated hope is being diminished by Bill C-45; they believe that many lifers who are now on their way to rehabilitation, and probably close to being successfully rehabilitated, may sink into despair because of this bill, and that we would be keeping in prison people who might otherwise be released and would not harm the community but would contribute to the community.
Mr. Healy: Senator Gigantès, it is possible that the judicial screening function and the enhanced requirement of unanimity in the jury will exclude some applicants who might otherwise succeed. I suppose the question of policy for you as parliamentarians to decide is whether an appropriate balance is being struck between hope for those deserving applicants and the amount of risk that can be tolerated in the community. It seems to me on the evidence we have -- I recited some of it before Professor Roberts came into the room, and he recited one of the same bits of data -- that there is not an empirical basis for saying that successful applicants under section 745.6 pose a risk.
It is possible for police officers, or for victims groups, to say that the possibility of the risk is enough to shut the door, is enough to warrant closing off the possibility of a successful application. In my respectful submission, that is a mistake. I believe my colleague has said he shares that view. There is no evidence that section 745.6 has in any way increased the risk to the Canadian public or put the protection of society in jeopardy.
Mr. Roberts: To respond to your question about whether lifers will lose hope if these changes -- unanimity and the screening process -- are introduced, my reaction would be that I do not think that will be the case. It will be harder for them to gain the early application to the parole board, but I think we must remember that, as Professor Healy said, it is a balancing act. One must balance the rights of the individual applicant with the concerns that have been legitimately raised by groups like the CACP and so forth. I would say to lifers, who might become discouraged at these changes, that in light of the heinousness of the crime of which they have been convicted and the widespread concerns, and so on and so forth, perhaps the threshold will have to be a bit higher than it was in the past, but in the final analysis it will not prevent the cases that have merit from having a proper hearing, and therefore they should not give up hope.
Senator Nolin: Professor Roberts, one of your concerns is with the retroactivity of this bill. You know how much we are concerned with retroactivity. Could you explain how this bill will be retroactive and why you are concerned?
The Chair: There are some provisions of the bill that are retroactive.
Mr. Roberts: Let us take the unanimity requirement to start with. Right now the decision is made by a two-thirds majority, as you know. That will rise to a unanimous decision for all future applications; that includes any applications coming along. Someone sentenced 10 years ago, who has spent 10 years in prison, working towards building an application, having in his or her mind that a two-thirds majority is the threshold to be achieved, will now have to expect a unanimous decision.
Senator Jessiman: So it is the date of application rather than the date that he goes into prison?
Mr. Roberts: Yes. They were sentenced under a set of conditions, including the two-thirds majority. It is retroactive to that extent.
Senator Nolin: But you imply that they have a right to two-thirds.
Mr. Roberts: For example, if a judge sentences me to 10 years in prison and I serve the full 10 years, I have a right not to be detained longer and not to have the conditions of my detention or the duration of custody changed after the fact. That is a basic principle of the criminal law: you do not change the sentence after it has been imposed. That is why you do not say, "We are passing a new law making the sentence for assault 10 years in prison, and anyone sentenced five years ago will now receive a 10-year sentence." Because they were sentenced five years ago, whatever they were sentenced to is what they get. You must live with that principle of no retroactivity. That is the basic principle.
I understand the desire to exclude individuals such as Olson, and so on, but perhaps they could be excluded in another way. What I find objectionable about the retroactive nature of the bill is that it would apply to all those people who are in prison now and who have been working towards a judicial review application under a certain set of conditions. Suddenly, there is a new set of rules. I have no problem with the rules changing for those who are about to be sentenced, but I have a problem with making it retroactive.
Senator Jessiman: Does that apply as well to those who have killed more than once?
Mr. Roberts: That might be the mechanism to use, perhaps to screen it.
Senator Jessiman: That would not be retroactive, then, would it? The new law could say that, if you have killed more than once, you cannot apply. You must spend the full 25-year sentence. However, you have now been sentenced, and you had that right so that right continues; is that correct?
Mr. Roberts: The general principle of retroactivity should not be violated. If you are speaking about the specific issue of people convicted of multiple murders, I might say that that is a kind of retroactivity with which we can live because we are talking about a very small number of individuals. The crime is so heinous that that is the kind of degree of retroactivity with which we might be able to live. But there should not be this blanket retroactivity in all cases.
Senator Nolin: You share the same concern.
Senator Jessiman: Someone told us that it was not retroactive. That is why I am a little confused.
Senator Nolin: Yes. It was Mr. Wilder from the department.
The Chair: There are some provisions which are retroactive with respect to the rules and there are others which are not retroactive. When the justice officials return here, we will have them clarify those retroactive provisions.
Senator Beaudoin: There is a distinction between the procedure and the substance of criminal law. The substance of criminal law, as far as I remember, is never retroactive.
The Chair: You are quite right, but there is retroactivity with respect to the rules.
Senator Nolin: Professor Roberts is saying that, for him, it is retroactive, because someone who is sentenced to 10 years or more than 15 years -- and, the actual process involves a two-thirds majority -- is entitled to that process and should not have this new process interfere with those rights.
Mr. Roberts: That is correct. I believe that he should serve his term and follow the rules that were imposed upon him at the time, not new rules that someone is introducing now.
Senator Nolin: When judges sentence a criminal -- and the jury is part of that process -- they do not take into consideration the parole process. They must not.
Mr. Roberts: Yes. But when a judge sentences an individual to 25 years without the possibility of parole for first degree murder, he knows two things.
Senator Nolin: He knows that section 745 is there.
Mr. Roberts: Yes. The judge and the offender know that section 745 is there and they know the rules to be followed for an section 745 application under the Criminal Code, which, under the present rules, requires a two-thirds majority. If that shifted to unanimity -- and this is one of the retroactive rules -- that would be a change in the rules that that individual would have to follow. It would be a change from the rules that were in place when he was sentenced 10 years ago.
Senator Gigantès: But is it retroactive for multiple killers?
[Translation]
Senator Nolin: No. His concern does not even relate to procedure, it relates to the concept of sentence.
Senator Gigantès: Will the new law C-45 exclude multiple murderers from the possibility of parole?
[English]
Senator Nolin: The way I read it --
The Chair: Professor Healy will clarify that.
Mr. Healy: I do not guarantee that, but I will try.
I think that Professor Roberts will agree with me instantly that the whole question of retroactivity and retrospectivity is a black hole into which lawyers wander very carefully. It is an exceedingly complex area of the law.
The point raised by Senator Nolin and Professor Roberts is that, if those provisions that are retroactive or retrospective -- that is, the ones that have backward effect -- are considered part of the sentence or part of the jeopardy that the convicted person faces at the time of sentence, then there will be a constitutional objection to it. If, on the other hand, it is regarded as being a procedural matter that is not part of the substance of the penal law, then possibly the objection disappears.
If there is a substantial constitutional objection, in what position does that leave you? It leaves you in the position of deciding whether to apply the proposals made in Bill C-45 to future applications, so that all those who are now eligibile under the old rules will have to go through that procedure. As far as the provisions of Bill C-45 are concerned, it is the screening and the unanimity elements that have backward application, whereas the multiple offender would have a forward prospective only. I think that is correct. Am I right?
Senator Nolin: No.
The Chair: You are absolutely correct, Professor Healy. Does that answer your question, Senator Gigantès?
Senator Gigantès: Yes.
Senator Nolin: We will hear from the department at the end. You are probably reading clause 6 of the bill. Clauses 7 and 8 are the clauses that we must look at when we are talking about retroactivity.
Concerning the question of Senator Gigantès, where does the second murder fall, and when? That is the question, but we will hear from the department on that. I do not think that the parole system is part of the sentencing. Sentence is one thing; parole is another.
Mr. Healy: You are absolutely right about that. As a matter of law, that is true.
Senator Nolin: But it is not a right. For me, it is a privilege.
Mr. Healy: There is an investigation that you should make on this question of retrospective application or retroactive application. Whatever answer you come up with, that does not change the question of policy that you must decide. You are deciding the date from which the policy should apply.
Senator Nolin: Yes, respecting the Constitution of this country.
Mr. Healy: Yes.
Mr. Roberts: I wish to address the last point that you raised.
Senator Nolin: That was my personal opinion.
Mr. Roberts: You say that parole is not part of sentence. That is the oldest and toughest question in the criminal justice system of this country. You also say that parole is a right -- that it is a privilege. In fact, it is not a privilege. Inmates have a statutory right to make an application. The privilege comes when, at the discretion of the parole board, they have a right to make an application. I am talking about parole in general. It is not quite right to say that it is a privilege, because they have certain rights under the Parole Act.
Senator Beaudoin: Bill C-45 is posterior to the Charter while section 745 of the Criminal Code is anterior. Obviously, if you say that from now on the decision of the jury should be unanimous, whereas under the previous applicability law it was two-thirds, I have no doubt in my mind that that is substantial. At least you may make a very strong argument under the Charter of Rights and Freedoms that will go to the Supreme Court. How can you say that it is purely procedural? I have serious doubts about that. I will ask that question of the representatives of the Department of Justice.
Mr. Healy: Madam Chairman, I did not assert that that was the case; I said it was an argument that could be made. To be perfectly honest, I do not know which side of the argument is stronger.
The Chair: Thank you both very much. This has been extremely informative. We very much appreciate your attendance here this afternoon.
Honourable senators, Senator Doyle raised the case of Helen Betty Osborne. For those of you not familiar with that case, it is a Manitoba case. The murder took place in The Pas some decades ago. Unfortunately, because there was a conspiracy of silence in the community, she being an aboriginal young woman and the perpetrators of the crime being all white males, no one was brought to justice for many decades. Finally, when one was brought to justice, he could only be convicted of manslaughter because the testimony was not adequate to convict him of murder owing to time, circumstances, evidence and all kinds of things that had happened in that period of time.
It might be of interest to you to know that there is another case going in The Pas right now in which another aboriginal woman has been shot, this time by her spouse who also happens to be white. To date, the only charges have been weapons offences. It is a very serious situation in that community.
Mr. Bebbington is here. He has agreed to deal now with some of the questions raised by Professor Roberts and Professor Healy. He will not address all our questions. However, he will clarify some of the things that were said on this whole issue of the retroactivity.
Mr. Howard H. Bebbington, Counsel, Public Law Sector, Department of Justice: Madam Chair, I just happened to be here to hear the testimony of my colleagues. I do not wish to detract in any way from Professors Healy or Roberts. However, I am struck by the concerns about the retrospectivity and how it works. We distinguish between the words "retroactivity" and "retrospectivity". Retroactivity is the more offensive of the two when it comes to making changes in the criminal law. We have avoided doing so in the bill. I will not bother you with the explanation about the difference between "retroactivity" and "retrospectivity".
I should like to bring some clarity to your deliberations concerning the three principal changes in the bill, which are the exclusion of multiples, the screening and unanimity. Both the screening and unanimity do have a retrospective effect. I mean by that that they will have an effect on the people currently in the system, once the legislation comes into force. The moment the legislation is passed, anyone who has not yet brought an application, but who has been sentenced and is in the system, will be affected by the change.
With respect to the exclusion for multiples, it is prospective in application. Therefore, it will not affect a case, unless the second or subsequent murder occurs after the law comes into force.
You have heard concerns expressed about the Charter aspect of this. It is clear that there will be Charter arguments raised whenever a change is made retrospectively. Its not common to do that in the context of the criminal law. However, there were very overwhelming policy reasons for us to move to have changes that have effect on cases before 15 years. If there were no retrospectivity in this bill, the changes proposed here would not have an effect until at least 15 years down the road. They would not have an effect on an application like Mr. Bernardo's, who is currently in the system. Mr. Olson was sentenced some time ago and has, in fact, already applied. None of the changes in this law, no matter when it comes into force, could affect Mr. Olson's application.
I note there are some questions. Perhaps I can respond to them.
Senator Nolin: Let us talk about the "multiple" part of this measure. Someone who commits two murders before the coming into force of this bill will be blocked; is that right?
Mr. Bebbington: Such people will continue to be eligible to apply. If both murders occurred prior to the coming into force of this legislation, they will be eligible to apply. However, they will be subject to the screening mechanism; and, if they get through the screening, they will have to convince a unanimous jury.
Senator Nolin: Is that the reason for the wording of clause 6 of the bill?
Mr. Bebbington: Yes. Clauses 6, 7 and 8 are transitional provisions, as you have pointed out. There is some repetition because of the need to deal with the contingencies with Bill C-41. We spoke about that last time.
Senator Jessiman: Even though you say that it has to be unanimous, someone who was not very happy with that could apply to the court under the Charter, which would be a test case.
Mr. Bebbington: Yes, of course. With the advent of the Charter we have seen a great number of challenges to parts of the Criminal Code which have been in existence for a long time and which we have thought to be a basic part of the structure. Undoubtedly, there will be Charter challenges. I note from your agenda that representatives of the CBA will be appearing later this afternoon. They may have something to say about this.
I expect that there will be Charter challenges to the retrospective parts of the bill. We believe that we have an argument, and a strong one, to support those, or we would not have advanced those. First, there is no such thing as criminal legislation that is "Charter-proof". In this case, there were some very overwhelming policy objectives to be achieved.
We do not like to speak of particular cases. However, a heinous multiple murderer who has been sentenced and is now in the system will be affected by the screening and the unanimity requirements. Even though the multiple exclusion will not apply to him, he will now have to pass through the hurdle of the preliminary screening by the judge. When the law comes into force, he will have to convince a unanimous jury. I hope that helps.
Senator Beaudoin: The case of Bernardo is a very special case, because he does not come under that legislation at all. Has he not been declared a dangerous criminal, in which case it will not have any benefit?
Mr. Bebbington: Paul Bernardo is the only one to my knowledge who has both at the same time a conviction for murder and the designation "dangerous offender." This has never occurred before. It is not clear at this point how that will all work out. Your point is absolutely correct. Until Paul Bernardo is relieved of his "dangerous offender" designation -- until the parole board determines that he is safe to release -- then all of this is quite moot. He would have to satisfy the "dangerous offender" requirements to be released, and he would have to have a successful section 745 application.
Professor Healy spoke convincingly about the possibility of someone like Mr. Bernardo succeeding. In addition to what the professor said are exactly the points you have raised, senator. In addition to the three hurdles with respect to section 745, he also has the additional hurdle of having to convince a panel that under the "dangerous offender" provisions he is safe to release. He will have the "DO" designation to be concerned about. He will have to deal with the screening by the judge. He will have the unanimous jury to convince. In addition to that, in the end, he will have to convince the parole board.
The hoops through which an individual like Mr. Bernardo would have to pass to be released are quite significant.
Senator Beaudoin: Suppose a person has been in jail for 14 years and Bill C-45 is adopted in a few days or a few weeks. Does that mean that the unanimity rule of the jury will apply to him because it is only procedural? I want to be convinced. I am not convinced simply because you say it is purely procedural. It is quite substantive. To have unanimity of the jury is very different from two-thirds of the jury. It means that one person may delay liberation for years. I do not say it is good or bad; I just say that it is very different.
Senator Gigantès: It will not be the same jury every time.
Mr. Bebbington: I would like to respond to that. Although I am sure that it would be appropriate for us to have a long debate about the legal aspect of this, there may well be a Charter challenge and we will be arguing it.
The distinction between procedural and substantive changes is very important in the context of retrospectivity. I would not for a moment suggest that this is not a significant change. To convince a jury unanimously, as opposed to two-thirds of the jury, certainly changes the dynamic of the hearing. My argument would be not so much in terms of substance or procedure as that, in my view, no one convicted of murder has the right, at the time of conviction, to depend upon convincing only two-thirds of the jury. If we change that threshold and say that, in order to achieve this exceptional form of release, you must convince all the members of the jury, I believe it would be very difficult for a murderer to argue that he has a right, protected by the Charter, to convince only two-thirds of the jury.
Senator Beaudoin: It is a strong argument. I just want to hear the two sides of it.
Mr. Bebbington: I appreciate that.
Senator Nolin: In your opinion, when does the right to parole arise? Does it arise at the date of sentencing or when the time arrives?
Mr. Bebbington: We are again venturing into what Professor Healy referred to as the black hole. It is difficult. In my view, and I believe the law is somewhat clear on this, the law attaches not at the time of sentencing, and not at conviction, but at commission of the offence. The law normally looks to the date of commission of the offence. That is because we operate under the premise that as free and autonomous individuals we make choices. At the moment before an individual chooses to commit a crime, that individual must know what the consequences of that choice are.
Therefore, the law which should normally apply is the law which is applicable at the time of commission of the offence. When you commit an offence, the law applicable then in terms of conviction, trial and penalty, including parole eligibility, would normally be the law that applies at the time of the commission of the offence.
Senator Nolin: Thank you.
The Chair: Honourable senators, we will suspend our hearing now until after the votes to be held in the Senate chamber.
The committee recessed.
Upon resuming.
The Chair: Please proceed.
Ms Joan Bercovitch, Senior Director, Legal and Governmental Affairs, Canadian Bar Association: Honourable senators, our organization, as you know, is a voluntary, national organization of lawyers representing over 34,000 lawyers, judges, law students and law professors from across the country. The mandate of the CBA includes improvement of the law and the administration of justice. The submissions that we will present to you this evening reflect that objective.
Our brief was prepared by the CBA committee on imprisonment and release. Members of that committee have acted as counsel in eight section 745 cases. The brief will be presented by Professor Allan Manson.
Professor Allan Manson, Queen's University, Member of Imprisonment and Release Committee, Canadian Bar Association: I bring the regrets of our chairman, John Conroy, from British Columbia. He could not be here this evening.
I will summarize our submission before asking whether you have any questions on the history of this provision, its current operation, or the amendments that have been put forward by the government. One of our concerns is that there appears to be a lot of misinformation. Personally, I have been counsel on two section 745 cases. If anyone wants to ask questions about how they really work, I will be happy to answer. If you have questions about statistics or about history, I will try to respond.
In a nutshell, our position is that this process already works. In 1976, when Parliament was considering abolishing capital punishment and replacing it with the first degree and second degree regime, it was proposed that those convicted of first degree murder, and some convicted of second degree, would be sentenced to the mandatory sentence of life imprisonment with no parole eligibility for 25 years for first degree and, for second degree, up to 25 years depending on the exercise of discretion of the trial judge.
To ensure that this regime was in accordance both with Canadian history -- by that I mean the Canadian experience prior to 1976 -- and with other jurisdictions, all of which pointed to a denunciatory period of between 10 and 15 years, but also to satisfy certain constituencies, principally the Canadian Association of Police Chiefs who said that, while they opposed the abolition of capital punishment, if there was to be abolition, the only alternative could be life with no parole for 25 years -- to satisfy all of those constituencies and those concerns, the government came forward with this current regime of 25 years, but allowing the prisoner to come forward after 15 years.
It is significant that, in the first proposal, it was judges who were to make that decision. It was in a committee much like this, in late June of 1976, that a member of Parliament said, "Why not involve the community? Why have three high court judges? Let's use a jury of community members." That is our essential submission. This is one of the rare opportunities for community involvement in the sentencing process, and it is working.
Juries are made up of community members from the area where the offence was committed. They sit 15 years later in adjudication of someone's application not to be released but to go to the parole board. So it is matter of community involvement in the sentencing process. Secondly, if you look at the results, these juries are doing a good job. They are rejecting the bad cases. They are turning people down. They are discriminating across the set of cases from between 15 and 23 years.
When you look at the results beyond that, the parole board is discriminating between good cases and bad cases. If you are looking at the results in terms of who has been released to the street, there has only been one. I am using data that is accurate as of December 31, 1995. There may be more recent data. Only one criminal offence was committed by a 745 applicant who was subsequently released. We have community involvement and statistical success in the sense that there is only one offence and there is good discrimination between the deserving and the undeserving cases. This is a process that works and ought not to be changed if it is working. That is our first submission.
Secondly, there is the matter of constitutional validity. When the Supreme Court of Canada in the case of Luxton, in 1990, confirmed the constitutional validity of the new murder sentencing regime, and the lengthy sentences for first degree murder, in doing so it made specific reference to section 745 as one of the factors that persuaded the court that these sentences are not cruel and unusual treatment and punishment, or grossly disproportionate. The deserving prisoner has the opportunity to come forward after 15 years. The continuing excessive access to section 745 is essential to preserve the constitutional validity of the whole homicide sentencing regime.
In summary, in our view, there is no argument of principle and no evidence or data that supports making any changes to section 745. I have read the submissions made by Mr. Rock when he appeared in front of the House of Commons Standing Committee on Justice and Legal Affairs. In answer to this argument, because he had our material before his appearance, he said that there is one argument of principle: the views of the victims.
I want to address that, because I think this is very important. This is a voice that cannot be ignored. The criminal justice system has to respond to the concerns of victims. However, it is wrong to think that there is only one voice. When we read the newspapers and listen to the media, we hear a group of people who have suffered and who are angry; but there are other groups of people. Last week, the Church Council on Justice sponsored a lecture at Queen's University, with Wilma Derksen, whose daughter was murdered a number of years ago. You will not hear her asking to repeal section 745 or reduce accessibility to it. She believes that people need to heal. She believes in restorative justice. She spends much of her time at Stony Mountain Institution, in Manitoba working with lifers and murderers.
I am only saying to you that there is more than one voice coming from the victims' community. They should all be listened to.
I would also point out that two years ago, when the Department of Justice amended the Criminal Code with Bill C-41, to ensure that material from victims could come forward in section 745 hearings, there was no discussion at that time about diminishing access to 745.
I really dispute the argument that it is the voice of victims that provides the argument of principle. It is one voice; there are many others. There is no argument of principle. No argument that reflects on the efficacy or coherence of this process.
In our view, screening is a system that has been working well. Juries have been discriminating and rejecting bad cases. In my own experience, I am one for two. In the first case that I did, I was responsible for the constitutional arguments that did not succeed. That case was rejected entirely by the jury. In the second case that I did, the jury made the man immediately eligible for parole. There is no question that juries are discriminating.
Should there be a screening process? Our position is no. However, if there is one, the Department of Justice has it wrong. Their screening process is that the Chief Justice, or another judge, will look at written material, the application, the material from the CSC -- which my guess is could be the counterpart to what is known as the parole eligibility report, the written report that goes to the jury on a 745 hearing -- and any other material that the applicant or Crown wants to put forward. That written material would go to the Chief Justice or a delegate. That judge, on a balance of probabilities, would be required to consider whether the written material showed a reasonable prospect of success.
If a case goes forward, the jury will hear from real people, including the prisoner. Members of the community will look at the prisoner and make some assessment of this person's conduct and character, and there are various statutory criteria. However, the amendment in front of you anticipates that a judge can look at the written word and make an assessment about reasonable prospect of success.
In our view, if there is a screening process, and our position is that there should not be, it should exist to achieve the objective that the minister has explained, to keep the completely unworthy case out. We do not have to mention names; people can anticipate the completely unworthy case.
In our submission, if that is what you want to do, the test should be "no prospect of success." In other words, the judge examines the written material, and if the judge concludes that there is no prospect of success, the case is tossed from the system. That will ensure that the unworthy cases do not go forward. It will ensure that all other cases go to a jury, a jury of members of the community where the offence was committed.
I want to make one more point about juries. I think there is a very important educational value when a jury turns someone down. This result speaks to how that community views the offence. The opportunity to turn someone down is important, in educational terms, for the entire community; it is important for the community to see members of the community turn someone down. It should not be a judge using what he sees on a piece of paper.
The test should be: "If there is no prospect of success, get it out of the system." It should not be the test you see here, which is much higher. I fear that is how it will be interpreted: "On a balance of probabilities, reasonable prospect of success."
We are advocating a test that is the counterpart to what we have at preliminary inquiries: "Some evidence upon which a reasonable jury properly instructed could convict." If there is some evidence, the case goes forward. If there is not, it gets tossed. That is our position with respect to screening.
With respect to unanimity, right now 8 jurors are required for a decision; this amendment would move it to 12. As a matter of principle, 12 is entirely appropriate in the criminal context, where the issue is proof beyond a reasonable doubt. Before someone loses his liberty, he ought to have 12 members of the community saying, "You are guilty." However, this issue is not about proof beyond a reasonable doubt. This is a sentencing issue; it is a discretionary issue. The supreme court itself, Chief Justice Lamer, in Swietlinski, talked about the kinds of decisions that are amenable to standards and burdens of proof.
Different reasonable people may have different opinions. For that reason, the eight-person jury is a much more appropriate standard in principle. It is perhaps closer to the real decision-making dynamic when we recognize that one, two or three people may say: "Absolutely not", "Never" or "It has to be this way." Surely having 8 of 12 community members is a substantial decision-making requirement.
Let us go beyond principle; let us look at the practicality. Everyone is concerned about resources and taking up court time. If one requires 12 jurors, one person may hang the jury. The judge will exhort the jury; however, if there is one dissenter, the jury can be hung.
Let me tell you about a personal experience. When I did one of these 745 hearings in Cobourg in the spring of 1994, because of a lot of local publicity about the case, the judge was persuaded that we ought to be able to challenge the jurors for cause. A set of questions was developed, and we vetted the jury panel. Two of the jurors quite spontaneously started talking about capital punishment and how no one convicted of murder should ever be released from prison anywhere. Of course, they were chucked from the jury panel, but if we had not been in this extraordinary circumstance where challenge for cause was permitted by the judge, those two would have hung the jury. Ultimately, this man was made immediately eligible for parole, but those two were adamant that not in a million years would they say yes. So you will either have hung juries, which means the process will be repeated, or you will have more challenges for cause, because that process is the only way you will weed out the extremes.
Let me move on to the multiple-murder situation whereby anyone convicted of a second murder will now, if this bill is passed, be denied the opportunity to go to a jury. This is the one amendment that is not retrospective. The others are, and I would be happy to talk about retrospectivity in a minute. With respect to multiple murders, there is no question that, whether you are talking about increased harm, two deaths from one event, or two deaths in two or more events, it affects the gravity of the offence. There is no question that that is a matter appropriate for both juries and parole boards to look at.
However, look at what we are doing here. We are now saying that here is a group of people, the multiple murderers, who represent by themselves a huge spectrum of moral blameworthiness, and we are hiving them off. We are saying, without more consideration, that they are so egregious and beyond the pale that they do not warrant even this opportunity.
I fear that when we start hiving off groups of people, we are slowly walking down a path that will lead to the return of capital punishment. I fear that. I think it is inherently wrong, both morally and legally, and we ought not to make concessions of principle.
Let me just say a word about retrospectivity and Charter issues. First, in Luxton, the Supreme Court of Canada referred specifically to section 745 as one of the elements of the current homicide sentencing regime that supported its conclusion that the current regime is constitutionally valid. If you take away this element, that must be relitigated. Certainly that would be my position as a lawyer. I would want to make the argument that, whereas in Luxton the Crown said, "But there is not a big worry about disproportionality, because after 15 years people can come back," we now have a group that will not have that opportunity after 15 years.
We will also have other groups, those affected by the screening or those who may be affected by unanimity, who now have a higher hurdle to meet retrospectively, higher than the hurdle that existed at the time of their sentencing. Yes, they still have access -- I am not talking about the multiple murderers now -- but they have access with a higher test retrospectively. This changes the shape of their prison life. They will be subject to state restriction for their life, whether in jail or outside, but it changes the structure of their prison life by limiting their opportunity to go to the parole board early. We cannot predict how the Supreme Court of Canada will respond, but the Supreme Court of Canada will be asked.
We have amendments that fiddle with the regime and create potential constitutional problems for no purpose. I say "for no purpose" because I want to repeat that there is no argument of principle, no evidence and no data suggesting that this mechanism does not work, this unique opportunity for community members to participate in sentencing. All the data show that it does work.
Those are my submissions. I would be happy to answer any questions.
Senator Jessiman: You said you had some statistics. How many individuals have applied under this act now? Do you know?
Mr. Manson: I am using Department of Justice statistics from December 31, 1995, which are in common circulation. At that time, 63 actually applied out of 175 who would have been eligible.
Senator Jessiman: How many were recommended by the jury?
Mr. Manson: Of the 63 hearings, 13 were completely rejected. They received no relief. Nineteen were allowed to apply to the parole board immediately. In other words, their parole eligibility was reduced to 15 years.
Senator Jessiman: How many applied, again?
Mr. Manson: There were 63 hearings, and 13 were rejected outright as of December 31, 1995. Of the 50 who received some relief, 19 were permitted to go to the parole board immediately, 27 were allowed to go the parole board at between 16 and 20 years, and the remaining three had to wait until they had served 21 to 23 years. Of that entire group that was allowed to go to the parole board and the ones that served the requisite amount of time, six were denied release entirely by the parole board.
Senator Jessiman: Of those that the juries recommended, the parole board then rejected 50?
Mr. Manson: No, 50 got some relief.
Senator Jessiman: And 19 immediately. They were able to go to the parole board immediately. Of those 19, how many did the parole board release? Does the parole board go along every time a jury says they are eligible?
Mr. Manson: No, absolutely not. Let me say two things in response. First, six cases that went to the parole board were denied any release.
Senator Jessiman: Of the 19?
Mr. Manson: No, of all the people who were eligible, which would be the 19 and others, depending on the time.
The Chair: Senator Jessiman, do you not have these figures?
Senator Jessiman: I am sorry, I do not.
The Chair: I actually have more recent statistics as of October 28, 1996.
Mr. Manson: I would be very happy to see those myself.
If I may, I would like to tell you something about the parole process. I want to tell you about a case I did in Cobourg in 1994, where the man was made immediately eligible. This is a man who had completely turned his life around, had finished high-school education, had a B.A. from Queen's and an M.A. from the University of Ottawa, was married and had a job, and had been out on passes 80 hours per quarter at the time we went to the jury.
Senator Jessiman: He got this education while in prison?
Mr. Manson: That is right. He had a grade 10 education when he was incarcerated. He was made immediately eligible for parole. It took him 18 months to get full parole, notwithstanding the fact that he was someone who was already spending 80 hours a quarter, that is every three months, out of the institution on work release. This is someone who is probably the best section 745 case, and it took him 18 months. As you can see, the parole process is a very demanding and rigorous process.
Senator Jessiman: How many sit on the parole board at a time?
Mr. Manson: For one of these cases, three or four.
Senator Jessiman: Do they have to be unanimous or does the majority rule?
Mr. Manson: It is majority decision-making, but I do not have the slightest hesitation in saying that the parole board that used to say it was in the release business no longer says that. They are now in the risk assessment business, and they are extremely conservative in assessing risk. You can see that by the fact that six prisoners, who persuaded a jury that they should be able to go to the board, were denied any relief by the board. That speaks to the checks and counterbalances in the process.
Senator Jessiman: Are there any other juries, civil, criminal or otherwise, where a majority or two-thirds is sufficient?
Mr. Manson: Not in Canada, but elsewhere. For example, in England, in the criminal context, it is 10 out of 12. That is the case in a number of jurisdictions.
Senator Jessiman: But here it is unanimous at the criminal level only. What about civil cases?
Mr. Manson: In Ontario, it is unanimous. But we use six-person juries civilly.
Senator Jessiman: You are telling us that what was already passed is good, that we should not make it any harsher, and should be fair to the murderers.
Mr. Manson: I am saying that it works.
Senator Jessiman: Is there any crime or any murder for which you would not extend a chance to apply for a review regarding parole? Is there anything anyone could do, or is everyone redeemable?
Mr. Manson: I am not saying that everyone is redeemable. Our position is that, in even the worst cases that will be turned down by a jury, there is educative value in having the jury deal with them. Some people will never get out of jail.
Senator Jessiman: I understand that. But juries do not look at what they did -- or do they?
Mr. Manson: Yes.
Senator Jessiman: What if, after 15 years, that person has turned around his life? For example, let us assume that the person of whom you spoke had a grade 10 education and had killed three or four people, but he had turned himself around since the commission of that terrible crime. In that case, I think you would let him out.
Mr. Manson: There are three statutory criteria: character of the prisoner, conduct while incarcerated, and nature of the offence. If anyone has been coming here saying that the material about the offence does not get in front of the jury, that is nonsense. Let me tell you how it gets in front of the jury. It gets in front of the jury in a non-inflammatory way. This is the practice in Ontario, but I am told that basically the same thing happens everywhere else: Most of these cases have already gone to appeal. The lawyers for the prisoner and the Crown take the statement of facts from the appellant factums and those are read to the jury in their entirety. If there were 82 stab wounds, that fact is read to the jury. You do not recreate the evidence from the original trial. In terms of viva voce evidence, you do not have witnesses describing the 82 stab wounds, but all the facts taken from the appeal court factums are read to the jury. That is one of the statutory criteria, namely, the nature of the offence. I have heard people say that nothing goes to the jury about the offence. That is wrong.
Senator Beaudoin: I should like to have your opinion on the question of retroactivity. Suppose that we were to re-establish the death penalty tomorrow morning. It would be challenged in court immediately, in my opinion, because, prima facie, it is a cruel and unusual punishment. I cannot speak for the Supreme Court, but the chances are that the court might very well reach that conclusion. That means that, since 1982, each time we enact a statute in this country that statute may face a Charter challenge. In this case, we are not concerned with a clear-cut case at all. If you change the processes of the parole system you must be respectful of the Canadian Charter, but that is the end of it.
I now wish to turn to the question of the jury. I am a partisan of the theory that before convicting a person of a murder it is a good thing to ask for a unanimous jury. However, in the case of Bill C-45, that is debatable. I think you also expressed that opinion. It is not the same as saying that this man or this woman is guilty beyond any doubt. This is not what we do at all. We just say that, having regard to the file of the person and the conduct of the person, the person may be liberated for such and such a reason.
Those who came before you are probably right. I do not think it is more than a procedural matter to change it from the two-thirds jury to a unanimous jury; but I still have something in the back of my mind asking, "Is it true that it is just procedural, or is it actually a bit substantial? Is it not true that we are dealing not with the constitutional right but with the statutory right?
I do not affirm anything. I want to know your reaction to that and the reaction of the bar.
Mr. Manson: Let me start with unanimity. Sentencing is not an exact exercise. It is not "yes or no". It is "guilty or not guilty." The best example I can give you is the way the Supreme Court has recently talked about the role of courts of appeal -- that they should show deference to trial judges and should only interfere if there is a manifest error; that the question is not one of correctness. Why isn't the question one of correctness? Because it is difficult to say what is correct, when you are dealing with the exercise of sentencing discretion; there are many options.
I think you are absolutely right. It is for that reason that unanimity is not appropriate. Eight out of twelve could agree on a specific response; the other four could be all over the place -- that is, more or less different. A minimum of eight agreeing on one specific thing is quite substantial. I agree with you in that regard.
Let us take the question of retrospectivity. It is facile to say that jury unanimty is just process. Requiring unanimity -- and this is a qualitative assessment and I am not sure what I would think, ultimately, other than that I have an intuitive response similar to yours -- qualitatively, increasing from eight to twelve is a higher threshold. If it is a higher threshold, then you are demanding more of the prisoner. You are saying to the prisoner, "Last week you had access to a process on this basis; today, you must show more."
It seems to me that that is substantially changing the sentence, given that parole eligibility is inherently part of the sentence. This is a constitutional problem because the Supreme Court has said that it is a principle of fundamental justice that you should be sentenced in accordance with the sentencing regime that existed at the time of the offence.
This principle applied to the case of Janice Gamble, who was convicted of a killing on March 12, 1976, before the new regime. She was tried under the new regime and convicted and sentenced in accordance with the first degree murder principles. The Supreme Court said that she ought to have been tried under the other regime. She would have been found guilty of non-capital murder and been eligible for parole after 10 years. The change in parole eligibility was the violation of the principles of fundamental justice. That ought to have been determined in accordance with the law that existed at the time.
The question is: Does it qualitatively change the sentence? Our submission is that it does, because it creates a higher hurdle. What certainly creates a higher hurdle is giving a judge the opportunity to exclude from the section 745 process.
Senator Beaudoin: Which case are you talking about before the Supreme Court?
Mr. Manson: The case of Janice Gamble, which was decided in 1988. Madam Justice Wilson was for the majority.
Senator Beaudoin: Are you saying that there is some analogy there with Bill C-45?
Mr. Manson: I am saying that that case stands for the proposition that, first, you must be sentenced in accordance with the sentencing regime that existed at the time of your offence. Second, parole eligibility is an integral part of the sentence. The question then becomes: Do these amendments qualitatively change parole eligibility such that the retrospective change violates section 7 of the Charter?
Senator Beaudoin: That has to do with fundamental justice.
Mr. Manson: Yes.
The Chair: Surely, someone convicted of first degree murder does not have any eligibility for parole until after 25 years have passed.
Mr. Manson: As part of their parole eligibility, they have the opportunity to ask the Chief Justice of the province in which they were convicted to have a jury empanelled to determine whether their parole eligibility should be reduced.
Senator Jessiman: That is a right under section 745.
Mr. Manson: That is a right which comes into effect after 15 years from the date of arrest.
Senator Nolin: Are you telling us that the Supreme Court has not declared these 25-year sentences contrary to the Charter because of section 745?
Mr. Manson: I said one of the factors they took into account was the existence of section 745. That case is called Luxton. The argument is longer than that. However, when the Chief Justice said it meets constitutional scrutiny, one of the factors was section 745. My argument is that if you take any factor out, the case has to be reargued.
Senator Jessiman: In what year was the Luxton case decided?
Mr. Manson: It was decided in 1990.
Senator Beaudoin: I want to be very clear because this is a difficult point. At the time of the sentence, we apply the law as it is.
Mr. Manson: Yes. That is what Gamble says. You must.
Senator Beaudoin: The court has to do that. However, you add something, in that the parole system should be included in the sentencing episode; is that right?
Mr. Manson: Yes. That is set out in Gamble. I was one of the counsel in Gamble, so I am happy to talk about it. She was convicted of a murder that took place on March 12, 1976, in Calgary, Alberta. It was the killing of a police officer. There were four people involved. One was never prosecuted. Her husband killed himself. The other man was convicted of first degree murder, allegedly as the shooter. She was convicted as a party.
They were tried later in 1976 under the new regime. The Alberta Court of Appeal in 1978 said that that was in error; they should have been tried under the old regime. The Alberta Court of Appeal said that it made no difference for the shooter, but for Mrs. Gamble it might have made a difference because a party to capital murder was sentenced to life with no parole for ten years, unless increased. However, a party to first degree murder gets life, with no parole eligibility for 25 years.
That was in 1978, which was pre-Charter, and the Alberta Court of Appeal said, "What can we do, because the code now says that, if anyone gets a new trial after July 26, 1976, the new trial will be under the new regime? What is the point of giving her a new trial? We have no remedy." After the Charter, because the Charter provided a remedy, a habeas corpus application was brought on behalf of Mrs. Gamble.
In 1988, the Supreme Court gave its decision on a majority of three to two. The majority consisted of Madam Justice Wilson, Mr. Justice Lamer, as he then was, and Madam Justice l'Heureux-Dubé. The dissenters were Chief Justice Dickson and Justice Beetz, who dissented on retrospectivity grounds because it was a 1976 problem.
The three-person majority said, first, that you must be sentenced in accordance with the law that existed at the time of the offence, and, second, that parole eligibility is an integral part of the offence, and therefore her continued incarceration because she was ineligible for parole was a violation of section 7, notwithstanding the sentence which was valid in 1976.
Senator Beaudoin: Even if it goes against section 7, it may still be acceptable under section 1 -- that is, a restriction that is acceptable in a free and democratic society.
Mr. Manson: Exactly. I am not saying that Gamble or any of the other cases decide this point. I am simply saying that they set up a structure that makes the point arguable, if you can persuade a court that these changes qualitatively change access to the parole system. Access to the parole system is part of the constitutional legitimacy of the whole regime. That is what has persuaded the Supreme Court that indeterminate sentences -- and a life sentence is indeterminate -- are constitutional because the person has access to the parole system.
I am just making the argument for you and giving you the elements of it. I accept that this would be a hard question for the courts.
Senator Beaudoin: I will raise the question with officials of the Department of Justice. I wish to have the attitude of the bar also because it is not an easy problem.
Mr. Manson: It is not an easy problem in our opinion either. We are simply saying that the litigation will necessarily happen, and there is a very serious argument for the courts to address. Why do this to a process that is working? Why create potential constitutional obstacles when you have a process that is working?
Senator Beaudoin: That is not a bad argument, and I just say that in passing.
Senator Doyle: Sir, I heard you say that even the worst cases deserve a chance. I just want to make sure that I heard you properly.
Mr. Manson: I said two things. I think even the worst cases ought to be assessed by a jury, because I think it is educational for a community to have a jury say no to the worst cases. However, if people agree that the worst cases ought to be excluded because they are undeserving, and I accept that there are undeserving cases, then you screen them out by a different process. You screen them out by using a test that is the counterpart of the preliminary inquiry, where you ask the judge, "Look at the material; if you conclude there is no prospect for success, then get it out of the system."
Senator Doyle: That is what I recall. We are not disagreeing. I am left with the problem, however, that there are cases that are not considered and never will be considered. Those are the cases where people insist they are innocent. The plea of innocence excludes you from section 745.
Mr. Manson: That is not true. I disagree.
Senator Doyle: Tell me about that.
Mr. Manson: I refer to the case I did in Cobourg. Many of you may have read the book, Conspiracy of Brothers, which was about the innocence of Sauvé and Comeau. In fact, the trial judge in the section 745 application ruled that we could not say to the jury that Mr. Sauvé had maintained his innocence. The trial judge agreed that he would say that, but he did not want to hear any arguments or any evidence about innocence.
The man or woman who maintains innocence can certainly go forward. The parole board does not like to hear that. They want to see contrition. I am agreeing with you. I think a man or woman ought to be able to tell a jury, "I was convicted of murder 15 years ago, but I am an innocent person." They might laugh in your face and reject you, but you ought to be able to say that, and people do.
Senator Doyle: As you are well aware, there have been some rather sensational cases of people who, after the fact, have proved their innocence.
Mr. Manson: Absolutely.
Senator Doyle: There are cases that are currently being pressed. When the officials were here with the Minister of Justice on this bill, they said that this was a bill for people who had committed what we used to call capital crimes, that it was for killers. They made no bones about that. So one might assume that the judge, who was going to filter the cases that might go through, might be the person who would, under this bill, stop people who had not yet been smart enough to admit it -- and they always use the word "yet" because they are convinced that anyone who gets through the courts and is found guilty is guilty.
Mr. Manson: You are right that this is a very serious concern. Many of the cases that have used section 745 have made it clear that there is no opportunity to relitigate guilt.
As I explained, in the Sauvé case the saw-off that we reached with the judge to ensure that no witness would try to make any argument or adduce any evidence about innocence, was that the judge would put it to the jury that Mr. Sauvé had maintained his innocence. Period. He specifically ruled that we could not adduce any evidence about innocence.
I agree with you that there may be some prejudice to the person who cannot get in the witness stand and be contrite. However, that is an argument in favour of reconfiguring section 745 or creating another process to respond to people who maintain their innocence. Section 690 permits the Minister of Justice to refer cases. Mr. Sauvé was turned down. Janice Gamble was turned down by the Minister of Justice. In the past few years, the minister seems to be more receptive. There seem to have been more cases sent back to the courts through that route. I noticed in the papers this morning that two were sent back after years of investigation.
I would hope that those processes are given serious consideration by the minister when these cases come forward. You are right; the problem of the innocent person puts the person in a dicey situation. We see this in the parole context regularly where the parole board demands contrition. They have to choose. If they insist that they are innocent, they will not get much of a hearing. I agree with you that this is a dicey problem, although it is not today's problem.
Senator Doyle: The way you have been describing the bill, you seem to see it almost as a safety valve on our conscience for the way we handle these people; that there is always a chance; a slim chance perhaps, but it is there.
Mr. Manson: Yes.
Senator Doyle: My question was whether it is for one class of prisoners.
Mr. Manson: It could be. Those people are prejudiced because they cannot relitigate their guilt, but they can have their section 745 hearing, and many of them have succeeded, like Mr. Sauvé.
Senator Doyle: Have you heard of the Kinsella case?
Mr. Manson: I am familiar with it.
Senator Doyle: That is another case in which there is no argument about the circumstances of his involvement, but he, under our present law, would not have been considered guilty of first degree murder. However, he missed on the retroactivity of the law. It did not embrace him.
Mr. Manson: The issue you are raising was just addressed by the Supreme Court of Canada in the case of Sarson, which dealt with the question of retrospectivity with respect to constructive murder, which was an avenue of being found guilty of murder but has been declared, since Vaillancourt in 1987, to be unconstitutional. There are some people who the Supreme Court has said are out of the system and therefore not entitled to have the current regime applied to them. This is called the Wigman test. Sarson was just rejected on that basis.
Those people, even though serving time for an offence that is no longer an offence, are eligible to go forward at their section 745 hearing. Kinsella was not successful. I agree with you entirely that that is an anomaly.
Senator Pearson: This is a fascinating discussion. One of the issues about which we are all concerned is the discrimination between those who do well after parole and the very tiny core of people who are irredeemable. Earlier, we spoke about the declaration of the dangerous offender. Could you tell me more about that? I am not sure about the procedure. I know that Paul Bernardo has been declared a dangerous offender. When is that done?
Mr. Manson: It is my view that that was a totally meaningless exercise and a waste of public resources. He had been found guilty of two counts of first degree murder in most heinous circumstances. He was sentenced to life imprisonment with no eligibility for parole for 25 years. To have him declared a dangerous offender was, I suppose, a judgment call on the part of the Province of Ontario to respond to the people who had been victimized by his other offences. However, it makes absolutely no difference, in any pragmatic terms, to his sentence.
Senator Jessiman: After 25 years, he can still apply.
Mr. Manson: Yes. In fact, as a dangerous offender, you can apply after three years.
Senator Beaudoin: Can you repeat that?
Mr. Manson: Dangerous offenders can apply for parole after serving three years. Now, because of merger of sentences, his minimum parole eligibility is 25 years, but none of that is affected by the dangerous offender application. It is totally irrelevant.
Senator Beaudoin: What is the use?
Senator Jessiman: Can he not apply after 15 years?
Mr. Manson: Yes, he can apply after 15 years, but the dangerous offender status has no effect on that at all.
Senator Beaudoin: Tell me why there is such a thing, if it means nothing.
Mr. Manson: It means nothing to him. It was done, I suspect, because the province wanted to respond to the people who were victims of his crimes. If you are convicted of a serious criminal offence -- and they are stipulated in the Criminal Code -- and found guilty, the Crown can apply to the Attorney General for consent that you be declared a dangerous offender rather than having you sentenced by the ordinary processes. That requires the court to make a finding about you in terms of the likelihood of future dangerousness based on your past. If the court concludes that you do meet the dangerous offender criteria, you are declared a dangerous offender and the court may sentence you to indeterminate detention, meaning potentially for life. You are eligible to apply for parole after three years. Virtually no dangerous offender gets parole until they have served 12 to 15 years. No dangerous offenders are getting any consideration from the parole board because, as I said, they are in the risk assessment business.
When you superimpose that process onto Mr. Bernardo, it is totally irrelevant. It makes no difference to his sentence at all. His sentence is life imprisonment with no parole eligibility for 25 years. It makes no difference to how the parole board will look at him with those heinous circumstances in the background.
Senator Pearson: I think the thinking was that after 15 years people would have forgotten how heinous it was.
Mr. Manson: The record is there. The videotapes are there.
Senator Pearson: It was brought up in a way that I perhaps misunderstood. If one has been declared a dangerous offender, one would not be eligible for a section 745 application.
Mr. Manson: No. Absolutely not.
Senator Pearson: So it has no effect on that.
Senator Beaudoin: The three years that you are talking about does not start right away? It starts only after 25 years?
Mr. Manson: It does not apply, because when you merge the two sentences, it is the longer eligibility period that applies. So the three years does not apply at all to him. If he were an ordinary dangerous offender --
Senator Beaudoin: How can a dangerous offender be ordinary?
Mr. Manson: A dangerous offender whose crimes do not include murder will be eligible for parole after three years.
Senator Beaudoin: That is another story. We have enough problems without that.
Mr. Manson: The merger of sentences requires that the higher eligibility applies. In one regime, he is eligible after 3; in the other, after 25. So it is 25 years that applies and the other is totally irrelevant.
Senator Nolin: Can you just go through your argument against the unanimity and link it please with the Luxton jurisprudence, if we can make that mix? It seems to be a strong argument.
Mr. Manson: Let me read to you these few lines from the Supreme Court in Swietlinski about burden and the kinds of discretion.
I am reading from 33 Criminal Reports [4th] at page 304. Swietlinski was the only section 745 case to go to the Supreme Court of Canada. Chief Justice Lamer stated about the jury that:
Its duty is to make a discretionary decision as to the minimum length of the sentence that the applicant must serve... When legislation lists various factors that a decision-maker must take into consideration a finding reached upon one or all of the factors does not necessarily mandate a conclusion leading to a specific decision. They are instead factors some of which may work in favour of the applicant and some against him, and which must be assessed and weighed as a whole in arriving at a conclusion. This is quite different from a trial where very strong evidence of one aspect... cannot offset the weakness... of another aspect. Accordingly, the concepts of burden of proof, proof on a balance of probabilities, or proof beyond a reasonable doubt are of very limited value in a hearing pursuant to s. 745, where the decision lies exclusively in the discretion of the jury.
The Chief Justice is right. It is a sentencing decision where reasonable people can disagree. There are extreme cases where people can be unreasonable, but reasonable people can disagree. To put someone to the test of persuading 12 to the same response is a huge burden.
Look at the number of people in this room. Surely, if I can persuade eight of you on something about the world, that is not cut and dried; that would be a big achievement.
Senator Beaudoin: Oh, yes.
The Chair: Especially in this room.
Mr. Manson: This amendment would increase the requirement. That is appropriate when the question is proof beyond a reasonable doubt. In our view, it is not appropriate to this kind of discretionary decision, where eight is a very substantial number.
If one can argue that that is qualitatively changing access to parole eligibility by requiring the applicant to meet a larger hurdle, it could be argued that you have retrospectively affected the sentence because parole eligibility is an integral part of the sentence and the Supreme Court has said that an offender is entitled to be sentenced in accordance with the regime that existed at the time of the offence. That would be the essence of the argument. The applicant would have to persuade someone that unanimity qualitatively changes his eligibility. I think it does, because to persuade eight people about something is different from persuading every single one of you; that is a huge hurdle.
Senator Nolin: If we used the Luxton jurisprudence and there were no section 745, the court would have a problem with the 25 years, because the accessibility would be increased to a level that would be relatively difficult to attain. In your opinion, can that argument still be made?
Mr. Manson: That is another argument that is very tenable. Someone convicted of first degree murder the day after this bill passes, might go to a lawyer and complain that it is dreadful to be sentenced to life imprisonment with no parole eligibility for 25 years, that surely that is cruel and unusual punishment. Upon doing some research, that lawyer would see that Luxton has said that it is not cruel and unusual punishment. The lawyer might also see that one of the factors that Luxton looked at was the 1990 version of section 745, and might realize that the section 745 hurdle is now much higher. There is less opportunity for someone to get back to a court to argue that they have become a different person. I would agree; I would want to reargue Luxton.
Ms Bercovitch: I would hire you.
Mr. Manson: We do not know what the court would do.
Senator Nolin: Your point is: Do not change it; it works.
Mr. Manson: That is right. It is essential to the constitutional validity of the whole regime; so why change it? Why raise the potential for that argument to be made, unless there is a good reason to change it. There is not even a poor reason.
Senator Nolin: There may be healing reasons.
Mr. Manson: I think you may be right.
Senator Jessiman: You are here on behalf of the bar. You are a member of a committee of the bar?
Mr. Manson: Yes.
Senator Jessiman: Did you meet as a committee to discuss this particular matter?
Mr. Manson: Yes.
Senator Jessiman: Was this view unanimous within the committee?
Mr. Manson: Yes.
Ms Bercovitch: The committee was unanimous. It was also reviewed by our national section on criminal justice, and it was also unanimous in its approval. That would be 16 people, the executive of the section. It was also approved by the Canadian Bar Association's national executive committee. It is a statement, in fact, of the Canadian Bar Association, not just of this committee.
Senator Beaudoin: You are really speaking for the bar.
Ms Bercovitch: That is right, our 34,000 members. I should also say that, in the criminal justice section, there are representatives both of defence counsel and of Crown attorneys, so we have that balance as well.
The Chair: I think Senator Jessiman may be implying that you are speaking for the bar but not necessarily for every single member of the bar.
I should like to thank the witnesses, particularly Professor Manson, for answering so many questions.
Senator Nolin: Mr. Chairman, I am considering all the options we have for this bill. We can pass it unamended. We can amend the bill. Do we also have an option, and I am seeking advice here, to ask them to scratch the actual section 745?
The Chair: No.
Senator Nolin: We have been asked that. If that is not one of our options, if that is impossible, then we will forget it and that is it.
The Chair: I have been informed that we have the authority to amend Bill C-45. We can reject the whole bill, of course, but we do not have the authority to throw out section 745 of the Criminal Code as it now exists, because that is not before us. That is not part of the principle of this bill. We do not have that authority. I do not think that is one of our options, realistically.
Senator Nolin: My question was whether we have that option, and we do not.
The Chair: No.
Senator Beaudoin: Earlier today, I raised that point indirectly. If we set aside Bill C-45, we go back to section 745, the status quo. If you want to get rid of the status quo, you need a new bill. The government could do that, or a member of the Senate could introduce another piece of legislation, of course. Even in the report, I am not sure that we may talk about section 745 if it is not really before us.
The Chair: No.
Senator Beaudoin: We may refer to it in the comments regarding the reasoning. We may even say to the Minister of Justice, "You should perhaps consider that possibility." However, that is all we can do. When I raised the question to the two previous experts who were here, they said that when the death penalty was abolished, section 745 was introduced, and if we wanted to get rid of section 745, and wanted the sentence to be firm for 25 years, we would need special legislation. That is what I understood the previous witnesses to say.
Senator Nolin: Now we know that we will have a problem.
The Chair: Senators, for the record, let us be clear, when we are referring to section 745, that we are in fact referring to section 745.6.
Senator Nolin, in your absence last week, we heard from the two victims, Mrs. Boyd and Mrs. Mahaffy. Something that concerned me at the time, and I asked Senator Milne to address it with them, was the fact that they came to us convinced that we could do something to repeal section 745.6.
Senator Nolin: That is why I asked the question.
The Chair: We made it clear to them at that point that, no, that was not an option open to us. We specifically asked them in that case whether they wished to have the status quo, therefore defeating Bill C-45, or whether they preferred Bill C-45 because it amended section 745 and made it tougher. They said they wanted us to defeat Bill C-45, which was contrary to the testimony we received from the other victims groups, which was that they wanted us to pass Bill C-45 if we could not repeal section 745.6.
Those are some of the options we obviously will have to deal with.
We will be hearing from the Attorney General of Ontario tomorrow. That will end our list of witnesses.
Justice officials apparently are not able to be with us next Wednesday. We will deal with this bill next Thursday. That does not mean we will not be sitting next Wednesday. I suggest that perhaps at that point we should start to deal with the regulations pertaining to gun control.
Senator Beaudoin: When Mrs. Boyd and Mrs. Mahaffy say they do not want Bill C-45 and section 745.6, there is the problem that that leaves a vacuum. We have abolished the death penalty. We have provisions of the Criminal Code for sentencing and for the declaration of guilt. However, we must provide for something else, because there would be a vacuum.
I agree with you, Madam Chair, that only legislation could fill that vacuum. Such legislation is not before us in that sense. Of course, we may talk about it in the report, but that is quite another story.
Senator Doyle: I think both of those witnesses were at that point quite upset and to a degree confused by the fact that we had turned the tables and were asking questions of them. I think that we would be foolish to read too much into the precise responses we received.
The Chair: I agree with you, Senator Doyle.
The committee adjourned.