Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 10 - Evidence - June 16, 2010
OTTAWA, Wednesday, June 16, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-6, An Act to amend the Criminal Code and another Act, met this day at 4:19 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome, on this rainy, miserable day, to the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill S-6. We are pleased to welcome our first witnesses today.
[Translation]
From the Barreau du Québec, Mr. Marc Sauvé, Director of Legal Services, and Mr. Gilles Trudeau, representing the Barreau du Québec. From the Canadian Council of Criminal Defence Lawyers:
[English]
We also have Mr. Phil Downes, as a representative of the Canadian Council of Criminal Defence Lawyers; and from the Criminal Lawyers' Association, we have Mr. Joseph Di Luca, Vice-President. Welcome to all.
Mr. Sauvé, please proceed.
[Translation]
Marc Sauvé, Director of Legal Services, Barreau du Québec: Thank you very much, Madam Chair, for giving the Barreau du Québec this opportunity to express its concerns in person with respect to Bill S-6. First of all, allow me to introduce myself: my name is Marc Sauvé, and I am the Director of Legal Services for the Barreau du Québec. With me today is Mr. Gilles Trudeau, who is the director of a legal aid office in Montreal and a criminal lawyer.
The Barreau made you aware of its comments and concerns in a letter dated June 9, 2010; that letter, addressed to Ms. Marjorie LeBreton, Government Leader in the Senate, set out the Barreau's position on Bill C-36, given that Bill S-6 reproduces the content of Bill C-36.
The Barreau commented on Bill C-36 in its letter of July 15, 2009, which was appended to our letter on Bill S-6 addressed to the Honourable Robert Douglas Nicholson, Minister of Justice for Canada, and signed by the Bâtonnier.
However, before I turn it over to Mr. Trudeau, I would simply like to mention that the Barreau's position on this matter was developed through the work of our Criminal Law Advisory Committee, which is composed of defence lawyers, Crown prosecutors and academics. The Barreau's committee is highly representative and operates on the basis of consensus. The Barreau does not take a position on any bill unless there is consensus in the committee, one which, again, is highly representative — something which obviously lends special weight to our position on this matter.
The Barreau's mandate is public protection and its comments to the Senate committee should be seen in relation to that public protection mandate. Without any further ado, I would like to turn it over to Mr. Trudeau, who will explain the main points of the Barreau's position on Bill S-6.
Gilles Trudeau, Representative, Barreau du Québec: The consensus position of the Barreau du Québec with respect to the government's legislative policy in this area is as follows: the Barreau du Québec is not in favour of introducing any amendment that would change the current regime under section 745, known as the "faint hope clause". The primary purpose of this bill, in our view, is to abolish this clause, supposedly to help victims' families, and to make it more difficult for those who might be able to avail themselves of this option to apply, assuming they were sentenced before this new legislation was enacted.
Why change legislation which, in our opinion, works well? If you do not mind, I would just like to read a few excerpts from the Barreau's opinion:
This provision was adopted when the death penalty was abolished in 1976. The sentence for an offender convicted of first-degree murder became imprisonment for life without eligibility for parole before 25 years is served. At the time, the 25-year parole ineligibility period was characterized as the necessary "trade-off" to achieving abolition. The "faint hope clause" was adopted to give an important glimmer of hope to the sentenced offender "if some incentive is to be left when such a terrible penalty is imposed on the most serious of all criminals." Indeed, this clause makes it possible for convicted persons to obtain parole before serving 25 years of a life sentence if they demonstrate a good capacity for reintegration and good conduct while serving their sentence. Faced with the possibility that the sentence could be reduced by up to 10 years, offenders are encouraged to mend their ways and adopt the type of conduct that would support a successful application for a reduction in the number of years of imprisonment without eligibility for parole. Thus, offenders are better able to overcome the despair of being sentenced to life in prison because of the realistic chance of being reintegrated into society before their life is through. Considering that the goal of section 745.6 is to give a glimmer of hope to those convicted of murder, in order to encourage them to change for the better, the Barreau wonders why the government would deny the value of that objective.
Under our criminal law system, rehabilitation remains one of the goals of sentencing. Despite the fact that, for the most serious crimes, the courts have little discretion, during the time convicted persons spend in prison, prison authorities also have the responsibility to ensure that these individuals can be reintegrated into society and to help them progress on a personal level in relation to the heinous crime they may have committed or did in fact commit.
This legislative regime is in place and seems to work; back in 1994, the Barreau du Québec spoke out against amendments to the regime that had been proposed at the time. Those amendments sought to reduce the rights of convicted persons.
Our review of the legislation and the data we have been able to collect show that, with respect to the number of offenders — and here I am on page 3 of the Barreau's opinion:
As of April 13, 2009, 991 offenders were deemed eligible to apply for judicial review. Of those eligible, there were 174 who applied for a court decision, of which 144 became eligible for earlier parole. Of these, 131 were granted parole.
Therefore, we do not see the "faint hope clause" as a panacea being used to introduce less harsh sentences. It is a measure inspired by compassion which, I believe, encourages an inmate to mend his ways and also helps society administer sentences based on the specific circumstances and behaviour of the inmate. We consider it to be highly effective, and empirically, only the most worthy candidates were in fact able to come before a court and a jury, a group of 12 citizens we trusted when they convicted the accused, but in whom this bill no longer seems to place its trust, since the test is being expanded to ensure that a judge will have to decide which cases are eligible. Furthermore, the period of ineligibility for reapplying has also been increased, something which the Barreau considers to be a further limitation on judicial discretion.
What, or whom, is this legislation afraid of? Why take away from a jury, from the community, the power to decide and grant this to an individual inmate, a person who has been sentenced to life in prison and who will first have to be approved by the majority of jury members before being able to ask the National Parole Board for day passes, perhaps, or to apply for certain types of release. And I am sure you know that inmates who are sentenced to life in prison remain accountable for the rest of their lives to the Parole Board.
The Barreau du Québec has always opposed measures that would limit judicial discretion. And having given careful consideration to this bill, we again believe that what is proposed would restrict judicial discretion.
For the proper functioning of the Canadian justice system, we believe it would not be helpful for that discretion to be lessened, diminished or completely removed and, as currently worded, the "faint hope clause" is seen by a consensus of members to be a necessary and useful measure.
Those are my opening comments on behalf of the Barreau du Québec.
[English]
Phil Downes, Representative, Canadian Council of Criminal Defence Lawyers: I am delighted to be here today on behalf of the Canadian Council of Criminal Defence Lawyers. The organization was founded in 1992 to offer a national perspective on criminal justice issues with a view to ensuring the preservation of constitutional principles, which protect us all, and to seeing that criminal law develops in a practical and principled manner.
Let me start by saying briefly a word about the title of this proposed legislation. It does not go in particular to any problems with the substance of it, which I will get to in a minute. The bill is called the "Serious Time for the Most Serious Crime Act." This trend on the part of governments of all stripes to engage in naming legislation with some catchy phrase when it is a serious piece of legislation is, in our respectful submission, somewhat insulting to the people of Canada. Proposed legislation like this is not a marketing exercise or some sort of grade-school mnemonic. It is our submission that we should try to avoid this kind of somewhat inflammatory language in naming our pieces of legislation because it results in a suggestion, in my submission respectfully, that it is patronizing and does not treat this kind of legislation with the seriousness that it deserves.
Having said that, let me turn to the substance of the bill. Should murderers have the opportunity to apply for early parole? I start from the premise that it is a principle of our justice system that we approach criminal law issues on the basis that it is in large part an individualized process. Particularly when it comes to sentencing and parole, we treat accused people and convicted people with some measure of attention to their individual circumstances. How, in an ideal world, would we make decisions about the right to apply for early parole?
I suggest that the best way would be to ensure that in every case, representatives from the Canadian public, from within the very community that was victimized by the offender, be given a say. We should have someone trained, trusted and wise in legal matters to ensure that this group of citizens approaches their task correctly; and we should trust those citizens to exercise their common sense in determining whether an individual offender should be entitled to early parole, should have no right to early parole, or should never be allowed to apply for early parole again.
Let me read you two quotes from judgments of the Supreme Court of Canada. They are both referred. One is directly from the decision in R. v. Corbett, 1988, on whether juries and how much juries should know about an accused person's criminal record if they testify at trial. The Supreme Court of Canada said:
The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense.
The decision in Corbett also quoted an excerpt from a judgment in a case called R. v. Lane and Ross with respect to evidence that went before juries. The judge said:
. . . I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries, and what has been regarded for centuries as a bulwark of our democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion.
In our respectful submission, the proposals in this bill do treat jurors as morons. It says that Canadian citizens are incapable of making important, informed decisions, and it presumes to know exactly what the Canadian public wants but takes the most important decision making away from those very ordinary Canadians who are said to want these reforms. In our respectful submission, this is not a principled reform of the parole eligibility system.
Retribution has a recognized place in our sentencing process along with other established principles of sentencing, but what really seems to be vindictive and unprincipled retribution does not. For example, one specific aspect of this bill that troubles us is the 90-day window to apply for early release for those people who remain eligible, in other words, for whom the legislation does not abolish the process entirely, and if they do not apply in 90 days, they wait five years to apply again. In our respectful submission, there is simply no justification for that narrow window. There is no justification to insist up front in the legislation that five years is the appropriate period of time.
We would ask you respectfully to consider, at the very least, if you are not inclined to consider that this proposed legislation is ill advised, whether that particular aspect of the bill might be amended, either to do away with the strict time limits or the five-year limit or, at the very least, to allow a judge to exercise his or her discretion to extend that period of time if it is in the interests of justice.
Previously, the jury, having heard all of the evidence, could decide the length of time an offender has to wait before making another application. This bill says, "Do not trust the jury to do that; do not trust the people from the community where the offence was committed to do that." This bill takes it away from them and makes the decision up front. We say that is an unfortunate development with respect to the role of juries.
Similarly, this bill proposes to restrict the discretion of a judge with respect to the screening mechanism. I have said this before in this committee: We trust our judges and we respect them, and they are world-renowned for their skill. Yet, we continually want to erode the trust that we have put in them by pieces of legislation such as this.
The proposed legislation, we submit, ignores the possibility of individual rehabilitation and contribution to society in those relatively rare instances — and the statistics bear that out — where individuals have proven, through a rigorous test, that they can now make a contribution to society notwithstanding the crime they have committed.
You have heard evidence previously from Mr. Rick Sauvé. This proposed legislation would rob someone like him from contributing back to the community in the very meaningful and helpful way that he has, notwithstanding the crime that he committed.
The bill, in our respectful submission, assumes that victims all feel the same way about those who commit crimes against them, and it is our submission that that is not necessarily the case. The loss of a loved one, whether by crime, accident or illness, is not something that can be fixed or erased. It is permanent, tragic and painful. No one can reasonably deny that, but we all respond in different ways to that kind of victimization.
I submit that some people from the victims' community — if I can call it that — would say that we should not permanently remove the right of certain individuals to be able to contribute to society, to try to make some measure of amends for the harm they have done to individuals and to their community.
The Canadian Council of Criminal Defence Lawyers is opposed to this proposed legislation. We see it as an erosion verging on a betrayal of the legislative bargain that my friends referred to in their submission. Criminal acts victimize individuals, but they are, the way our system is structured, fundamentally a harm to the community, a betrayal of the community's trust. That is why prosecutions have for hundreds of years been in the name of the sovereign, not private prosecutions.
The provision that this bill proposes to do away with was a carefully circumscribed, intelligent and balanced approach that recognized and valued the public's role through the jury in that system. This bill says that we do not trust that jury anymore. In our submission, it is unnecessary legislation and it is a wrong and regressive approach to the treatment of criminals that erodes rather than strengthens our society.
As always, senators, I am most grateful for the opportunity to make these submissions to you today.
Joseph Di Luca, Vice-President, Criminal Lawyers' Association: The Criminal Lawyers' Association welcomes the opportunity to appear before the committee on the fundamentally important issue raised in this bill. By way of background, the Criminal Lawyers' Association is a non-profit organization that was founded in November of 1971. Our organization represents over 1,000 criminal defence lawyers in the province of Ontario. Our objectives are to educate, promote and represent our membership on issues relating to criminal and constitutional law. Together with the Crown attorneys, we represent the front-line workers of the criminal justice system, and we share a direct and substantial interest in this and similar legislative initiatives.
The Criminal Lawyers' Association does not support Bill S-6. In our view, the repeal of the faint hope provision represents a significant step backwards. It will result in Canada having one of the lengthiest rates of incarceration amongst comparable countries. More important — and this is crucial, in our respectful submission — there is scant, if any, evidence suggesting that the current provisions are not working. Murderers are not getting a get-out-of-jail-free card. They are not being released to commit further violent and serious offences.
Indeed, quite the opposite is happening. The statistics provided to this committee and earlier to the house committee suggest that the provisions are working very well and that only the most meritorious individuals are obtaining reductions in their periods of parole ineligibility. Of those who succeed at their faint hope hearing and further succeed in actually obtaining parole from the National Parole Board, the vast majority reintegrate into society without issue. In our submission, the mythology and misconception regarding the misuse of the faint hope provisions is not borne out by the evidence and statistics presented to you.
In support of our position, I ask that you consider the following: Much of the government's new crime legislation is designed to bring public accountability to the criminal justice system and restore public confidence. In our submission, the faint hope provisions are about public confidence; they are about public accountability. It is the public — a jury — who hears the evidence and makes a decision. Those who have their parole eligibility reduced do so by convincing that jury, in the community where they committed their offence, that they deserve that outcome. A jury just like the jury we trusted to convict them of murder in the first place is entrusted to make this valuable and important decision.
If the public truly had no confidence in the system and saw the faint hope provisions as an unprincipled or dangerous loophole, I ask rhetorically, why do so many of them succeed? Clearly the public has some confidence in this process, because the jurors who are asked to do their public duty by hearing these cases have decided in many of them to accept the position advanced by the accused person and lower their period of parole ineligibility.
Second, "truth in sentencing" has become a catchphrase, and it is used as a basis for the various reforms that recently have been talked about in the criminal justice world. Truth in sentencing, with great respect, is not the issue here. The issue is public legal education about how the sentencing process works. With great respect, judges are not misleading the public when it comes to these sentences for murder and other serious cases. Judges are doing exactly what they are supposed to do. The problem is the misconceptions that fall in the public sphere, the misunderstanding of how these provisions work. If we were better able to educate the public about how these provisions work, the apparent crisis — and I call it an "apparent crisis" because evidence is lacking to prove that there is actually a crisis — would cease to exist.
Much has been said about the revictimization that is caused by the current faint hope provisions. This is a delicate subject. We must remember that the convictions that come before a faint hope jury happened at least 15 years prior. The convictions themselves and the facts behind them are not in dispute. The issue is whether the offender has made significant use of the time in prison to rehabilitate him or herself. In some ways, while it may not be an appreciated opportunity, it is an opportunity for the victims to see what, if any, progress an offender has made, and the victims have a role to play, too. They provide input and have their concerns listened to by the judge and jury.
I have read the emotional and touching testimony of family members who have recounted their stories in the various committees studying this bill. I join everyone in this room, I am sure, in acknowledging the inexplicable difficulties these people suffer. However, I ask this honourable committee to keep in mind the fact that concerns about the difficulties visited upon the victims and their families cannot be the only reason for eliminating rehabilitative features of the criminal justice system. If that were so, many of the constitutionally protected and indeed mandated features of our system would be imperilled, the trial amongst them.
Repeal of the provisions will likely result in the courts, perhaps even the Supreme Court of Canada, re-examining the constitutionality of the life 25-year sentences under the rubric of section 12 of the Charter. When the Supreme Court of Canada last looked at this issue in the early 1990s in the Luxton decision, it noted the existence of the faint hope provision as a factor that mitigated against a finding that those sentences were grossly disproportionate. This will now need to be reassessed, and it will be done against a new factual backdrop that will include statistics and comparative analyses regarding rates and lengths of incarceration among comparable countries, and we are soon to be at the top of that list.
It will also include evidence regarding the impact of life sentences on individuals, an impact that was not well developed or understood in 1990 or 1991 in the Luxton decision. The faint hope provision provides an incentive for convicted persons to fully utilize rehabilitation and programming while in custody. These offenders will likely be released at some point; and it is in our interests as a society that they remain motivated, even a few of them, to rehabilitate themselves. The provisions are the proverbial carrot on a stick.
This should be viewed, as well, through an understanding that not all murders and not all murderers are the same. Some are obviously heinous, incorrigible people who will never respond to structure. As it stands, those individuals will not get past the screening stage of the application process.
Others, however, have a potential for reform and rehabilitation. They may have committed the offence when young in a moment of passion and rage. They may have been under the influence of drugs or gangs. Regardless, they may be very different people 15 years after the fact than they were at the time they committed the offence. We should not simply shut the door on this rehabilitative process.
As a final concern, I want to echo Mr. Downes' concerns regarding the time limitations included in these provisions for the offenders who will continue to have access to the faint hope provisions. The two time limits, the 90-day and the 5-year time limits, are of great concern to the Criminal Lawyers' Association.
First, the inclusion of the 90-day rule is, in our view, unnecessary and unworkable. What is the principled reason for including a fixed 90-day time limitation? What if the offender, through no fault of his or her own, perhaps through the unavailability of programming within the institution — and we know there are waiting lists and delays for getting appropriate help — is not quite ready at the 15-year mark? What if they are in the middle of the programming? What if they would be ready by the 16th or 17th year? What if the offender wants to proceed but misses the deadline?
We all sit back and think that 90 days is a long time; lots of things can happen in 90 days. Trust me, in the criminal law world, for a person who is incarcerated — let us say their offence happened in Ontario but they are now incarcerated in British Columbia — for them to get their act together, to find a lawyer in Toronto or elsewhere in Ontario, to get Legal Aid on board, to get funding, to figure out how to get this form that starts the process from British Columbia filed in a court in Ontario could take more than 90 days.
If it did, what happens then? At 91 days, they will have to wait for five years. There is no provision in this bill that allows a judge to extend the time to allow for a reasonable delay in certain circumstances.
What other provision in the Criminal Code that contains a time limit is an absolute, fixed time limit? I do not think there are any. I think all of them permit a judge or a court, on proper demonstration of reasonable cause, to extend that time.
Second, the five-year rule seems harsh and vindictive. Is there any evidence that the current process is not working? Judges and juries have the right to delay or prohibit a further application. Why is that not enough? Have they not been doing that? Are there cases where families of the victims are being re-victimized every two years? If so, why have the courts not stepped in to deal with it? In our respectful submission, the provisions are there, and they are workable.
On the whole, and in concluding, the Criminal Lawyers' Association takes the position that this piece of proposed legislation is retrograde and unprincipled. There is no evidentiary basis before you that warrants the drastic steps contemplated.
The bill will remove a valuable rehabilitative feature from our criminal justice system. It will also place our nation at the top of the list in terms of how long we keep people in jail for these types of crimes. That, in my respectful submission, is not something Canadians need to be or should be known for.
Senators, Madam Chair, I look forward to your questions.
Senator Carstairs: If it was permissible in the committee, I would stand up and applaud. Clearly, I do not support this piece of legislation, but I do have some questions I would like to put for you.
First, there is a difference in wording between "reasonable" and the new wording, "substantial likelihood." I asked the Minister of Justice about that. He of course says that it will not cause any problems because you are dealing with two different judges — the judge who makes the initial decision and the judge who will select the jury.
Clearly, you are of a different view. I would like to hear you express that in some more detail.
Mr. Di Luca: I can start on that. It may well be ultimately that with the pre-screening function, if we raise the standard to what is contemplated — which is a very high standard that is used extraordinarily rarely in the Criminal Code — the message being sent will be that this is a successful application just waiting for the final blessing by a jury. If any of the prospective jurors are aware of the procedure and the process for how this matter gets before them, the message will be clear to them. I am not sure whether counsel arguing these matters before a jury would be in a position to tell the jury that; that may not be an appropriate form of comment. However, it is clear that not just any old application gets there; it is only the most meritorious.
My preference would be to protect what we see as the realm for the jury to do its work in, which is what we do at trials. In fact, at a trial, the standard usually adopted for allowing a matter to go to the jury — for example, a defence — is that an air of reality to the defence exits.
That is a relatively low standard — likely lower than the one that currently exists. We are now going almost full circle the other way, where a judge is predetermining the issue before giving it to a jury. It likely duplicates the process, but it also likely places sure winners before a jury.
Mr. Downes: I do not have anything to add to that.
Senator Carstairs: My second question has to do with the 90 days. We were assured by the Correctional Service of Canada that they would be able to put programs in place that would alert these individuals that their 15 years were up, and that they would have adequate time to be able to hire lawyers and to make the application. You seem to be painting quite a different picture.
What would happen if, for example, someone was in hospital at the time when their 15 years were up, perhaps in a coma? Under this proposed legislation, would that person still not be able to act if the 90 days expired?
[Translation]
Mr. Trudeau: Based on our understanding of the bill, there is absolutely no flexibility if the application is not made within the 90 days. It is important to realize that the procedural rules that apply to these applications are different from one province to the next. For example, the rules of practice for the Quebec Superior Court regarding applications for judicial review are not particularly problematic for lawyers like us, but they do cover five pages and are very detailed.
We are basically talking about someone in a penitentiary. You might be thinking that this individual had 15 years to prepare. But that individual might not have been in a position to consider making an application during that 15-year period.
Inmates are often moved from one penitentiary to another. And you should also be aware of the fact that the application must be forwarded to the provincial Superior Court in the community where the individual was convicted. It happens frequently — I am the director of a legal aid clinic — that we deal with inmates in a province which is not the province where they were convicted. That means getting in touch with other lawyers elsewhere in Canada to gather all the necessary documentation in order to move forward with the application.
I would put the question back to you, the lawmakers: what is preventing you from changing the 90-day rule to allow an individual who is able to prove just cause to submit an application after the 90-day period has expired? Is it an economic or an ideological constraint? I put the question to you.
[English]
Senator Carstairs: I raised the Luxton decision in my speech in the Senate. Do you think that this will definitely give rise to a constitutional argument that this is now cruel and unusual punishment, and how do you think that argument will fare?
Mr. Di Luca: We have come a long way from where we were in the early 1990s in our understanding of the impacts of long-term custody. We have an aging prison population. You have heard evidence directly on that issue. We also have a statistical basis to show where Canada ranks among other nations against which we compare ourselves constitutionally, politically and democratically to see where we stand.
It is clear in the Luxton decision that Chief Justice Lamer relied on the existence of the faint hope provision as one factor that tipped the balance in favour of constitutionality at that point. Once this is gone you will absolutely have a constitutional challenge, and the factual basis for it will be much more advanced than it was in the Luxton decision because our knowledge, our state of understanding about the difficulties of long-term incarceration, has been enhanced. I cannot tell you which way it will ultimately go, but it would certainly be an arguable case to be made and one that certainly will be made.
[Translation]
Senator Boisvenu: Gentlemen, good afternoon. You are probably aware of the fact that victims groups across Canada have been vigorously lobbying for this bill for the last five years, as they feel they are front-line representatives of the justice system.
These victims, and especially the victims' families, really had the feeling that when a judge handed down a 25-year sentence, with no possibility of parole, only to see the prison system release that individual after 15 years based on its own system. . . well, you can certainly understand that family members of victims — and I am one — felt that the justice system had lied to them or lacked transparency.
My question to Mr. Trudeau is this: If I follow your argument and your logic, which is that these individuals should be released after 15 years because they have been rehabilitated, why not allow them to invoke the "faint hope clause" after five years, rather than 15?
Mr. Trudeau: This legislative provision was deemed to be an acceptable trade-off when the decision was made to abolish capital punishment. So, we are obviously talking about tougher sentences. The trade-off was 15 years. Fifteen years is neither too short nor too long.
I would just like to correct something you stated in your question. This process does not allow people to be released. It gives them an opportunity to apply to the Parole Board, which then holds hearings and prepares all kinds of reports in order to determine whether or not the individual should be released.
But release from prison does not mean the individual's sentence comes to an end. The sentence ends only when the convicted person dies.
Senator Boisvenu: I am sure you agree that the values that underlie our justice system must reflect people's expectations and values, and not just the values of lawyers and legal experts like you. Do you agree with that?
Mr. Trudeau: I believe I am part of the community and that the Barreau du Québec is also part of the community, and the message we delivered today reflects the consensus in the province of Quebec.
Senator Boisvenu: If the citizens of this country — and I am not talking about lawyers or legal experts — were to say that they found the 15-year period to be unfair to victims, do not think that would justify reviewing this trade-off, given that justice must be done on the basis of people's expectations, and not only the perception of lawyers?
Mr. Trudeau: Our opinion is that what needs to be reviewed is not necessarily this provision, but rather, the need to educate people in general about our legal system. I believe that justice is done when a court makes a ruling, there is a conviction and a sentence is handed down. I believe justice is also done when, at the end of an entire process of rehabilitation and change, the most worthy among inmates who have shown themselves to be absolutely exceptional as regards their behaviour and progress while serving their term, are able to make such an application.
The question in our mind is whether this bill is being enacted by the government to fulfill a commitment to families of victims and allow them to avoid the pain and uncertainty of these hearings, when in fact the bill you are currently considering and even in the context of a criminal trial, there are already measures in place to help the victims present their perspective. Under the Criminal Code, there is provision for the victims to be heard through other mechanisms when hearings are held in front of a jury, and I am just wondering why you are not directing your efforts towards measures whereby the victims or the provinces could create programs that would help victims heal their wounds?
Senator Boisvenu: You work within the justice system, but are you aware of the fact that, when a criminal kills someone, the family is likely to be involved in legal proceedings for between seven and nine years, if the criminal takes his case as far as the Supreme Court?
Mr. Trudeau: Yes.
Senator Boisvenu: And six years after the Supreme Court ruling, that same criminal will be entitled to apply for parole. At that point, the family will be involved in further legal proceedings.
Mr. Trudeau: You are talking about the timeframe for hearings; you are not talking about the appropriateness of assistance for victims —
Senator Boisvenu: When we talk about victimization —
The Chair: You asked a question, and he is answering it. We will move on now to another senator. Could you complete your answer, Mr. Trudeau?
Mr. Trudeau: That is fine.
Senator Boisvenu: You seem to be confusing victimization and rehabilitation.
Mr. Trudeau: I believe it is in the interests of Canadian society to introduce measures that will help victims to cope and heal their wounds. It is a complex process that involves psychological help, duality, and so on. These are programs implemented by the provinces. In Quebec, we have the Victims of Crime Act.
If the legislature wants to help families, I do not think it is really helping them much to grow and accept something that is absolutely unacceptable, when you lose a loved one, but the fact remains that they are led to believe that by removing the possibility — not for the majority of people but for a very small number of individuals, whose behaviour has been above reproach, that they can become something different. Why not include measures in the legislation that foster restorative justice, participatory justice? In some cases, an effort is made within the prison system to allow individuals who have committed a crime to try and connect with the family, if the family is willing. Why would the community not want to put in place the same kind of healing process that we see in Aboriginal communities? Why not make this available to everyone, including people who have experienced a tragic event that will always be with them, rather than just depriving someone else? If that individual has really made progress on a personal level, it is perfectly appropriate that he or she be able to make contact with the victim's family in order to try and repair the damage done; instead, we deprive that person of the opportunity and leave him in prison, forcing the victim to go through rehabilitation and to try to repair the harm from inside the penitentiary. Are we really helping them? That is what I and the Barreau are wondering. Are we not missing the target with this bill?
Senator Boisvenu: I obviously do not share your views on this at all.
The Chair: Thank you, Senator Boisvenu. Senator Runciman.
[English]
Senator Runciman: Thank you all for being here today.
Mr. Di Luca mentioned in his submission that the issue is public education, that truth in sentencing is not the issue. Mr. Downes referenced a betrayal of the community's trust.
I respectfully disagree. I think that truth in sentencing is an issue, and I think that if there is a betrayal of trust, it is the fact that there is not truth in sentencing. We have to read the fine print to know what is really happening when we have pretrial credits, sentence merger for crimes committed on parole, et cetera. When a judge pronounces a life sentence without parole eligibility for a specified number of years, Parliament has a role to play in ensuring that that is the truth, and we know that in many instances that is not the truth.
Another example of betrayal of the community's trust is that when the death penalty was abolished in the 1970s there was an expectation that a life sentence would be the alternative to the death penalty, which the public could, by and large, accept as a quid pro quo. Of course, that has been eroded over the years with faint hope and other areas of confusion for the public about what the actual sentence is.
Mr. Di Luca, perhaps you would like to respond to this initially. You say that the problem is education, not truth in sentencing, and that the judges are doing their job. I do not disagree with you there. They are doing the job, but there are many other things involved. The public is concerned, and I think legitimately, about the sentencing process and what is really behind what appears in the newspaper and on the six o'clock news, because in reality that is not what the individual is facing at the end of the day.
Mr. Di Luca: That is an excellent question, Senator Runciman. Criminal lawyers are often confronted at cocktail parties and elsewhere with the question, "How long is life in Canada? Does a life sentence in Canada mean only 10 or 15 or 25 years?" That is a public misconception, because all of us at this table know that a life sentence is a life sentence. You may not serve that entire life sentence in jail, but you are always going to be under the supervision of the National Parole Board.
If we were to look at the concept of truth in sentencing as fixed and inflexible — "What the judge says is exactly what you serve in jail" — following that to its logical conclusion you do away with any parole, any earned remission or any pre-sentence time calculation whatsoever, and the exact number of days that the judge gives you would be the exact, to-the-minute, time you serve. Leave defence lawyers out of the calculation, because you know where we sit on that fence. However, ask the corrections people if they would want a system like that, if they would see a system like that fostering rehabilitation and an environment within the jail system that would provide a measure of control and safety for the inmates. It does not work.
My comment in relation to the concept of truth in sentencing is that we have an obligation — you as parliamentarians and senators and we as lawyers — to dispel the myths, and when a judge tells people they are getting a life sentence, we need to let the public know that it is indeed a life sentence unless those individuals can meet certain requirements. Those requirements come out in many ways. Parole is an option. We have not removed parole; it is still there. If you call it a life sentence, you are automatically excluding the possibility of truth in sentencing, because those people will get parole at some point, and they will get it for a valuable and valid reason, which is that they have demonstrated that they are not all bad.
At the end of the day, I stick with the view that we need to do a better job of explaining what a sentence means. If a judge reads out a sentence, "Life in jail with no eligibility for parole for 25 years," he or she should explain to the people in the courtroom that there is a faint hope mechanism. Judges do tell people that. I have sat through sentencing hearings on first-degree murder charges where the people gathered in the courtroom heard that. It is hardly ever reported, and it is not very well understood, but it is there.
I accept your point, Senator Runciman, and it is a challenging issue.
Senator Runciman: Could you not also make the argument that the faint hope clause also infringes on judicial independence? The trial judge is hearing the circumstances of the crime and seeing the demeanour of the offender.
Mr. Di Luca: Except that in first-degree murder there is no discretion.
Senator Runciman: However, in second-degree murder there is. Especially with second degree, an argument could be made that the faint hope clause interferes with judicial discretion.
Mr. Di Luca: You are catching the people sentenced to 16 to 24 years. My guess on that would be that the judges would likely support a review mechanism that took a second look at the progress a person makes. It is difficult to guess how a person going into the jail system will turn out 15, 16 or 17 years from now. Some of them will not do very well, but some might. Even if one or two do, it is a system that is worth saving.
I agree that for some cases you might be retrospectively affecting the discretion of a judge, but for the vast majority of those cases in which this applies, which is first-degree murder, the judge has no discretion to begin with.
[Translation]
Senator Carignan: Thank you for being with us this afternoon. I have a brief comment. There seems to be something missing from the equation in what all four of you have said, and that is the exemplary nature of a sentence and its deterrent effect, something which is also intended to maintain public confidence in the justice system.
A few minutes ago, an agreement was reached in the House of Commons to pass a bill to remove access to pardons, something Ms. Homolka would have been entitled to on July 14, 2010, if that bill had not been passed quickly. And if you do a survey of Canadians, there is no doubt in my mind that the public would agree with that. I tested it with people who were in my office when we heard the news.
With respect to this bill, in the House of Commons, Serge Ménard — and we all agree he is not the right-wing conservative ideologue that you seemed to suggest earlier, Mr. Trudeau — stated the following:
However, I fully agree with you: the burden must be quite substantial in cases involving murder. Your testimony has given me a great deal of food for thought. Here is my initial reaction: I don't see why individuals convicted of murder should be given a chance, because murder is the worst of all crimes; it involves killing someone in cold blood with premeditation, and if a crime committed by someone who is not insane and who was not prompted to carry out such an act because of a mental illness . . . .
I don't understand . . . how people who have committed such a crime could be released on parole, if only because of the nature of the crime and the way in which it was carried out. I see nothing inhumane about keeping such individuals in prison, even when they have been rehabilitated.
Setting aside the positions of your respective members — and Mr. Trudeau, as a member of the Bar, I do not necessarily share your opinion, and furthermore, when you say you represent the members, I would point out that my opinion as an individual is not represented in your comments today — do you not think that this bill, first and foremost — and Parliament has to enact laws that reflect the will of the people — does indeed reflect the values and desire of the public to sanction the most serious crime with the most serious punishment which, of course, must not be cruel and unusual punishment that would impair human dignity, but still constitute harsh punishment that reflects the public's aspirations?
Mr. Trudeau: I sense that question is addressed to me, so I will answer it.
Senator Carignan: It is addressed to you, Mr. Trudeau, but also very much to Mr. Downes as well.
Mr. Trudeau: The Barreau du Québec does not represent personal opinions, so you obviously were not questioned personally about your views. We represent opinions as reflected by the consensus reached in the different advisory committees. I do not believe you were present when Mr. Sauvé described the decision-making process at the Barreau du Québec, so perhaps I could go over that again.
Senator Carignan: I am familiar with it; I know the members of your committee and this has already been explained to me. I attended the Barreau's convention several weeks ago.
Mr. Trudeau: In that case, you must know that there are individuals of a variety of political affiliations around the table reflecting on the bills brought forward by the legislature or by Parliament.
The second point with respect to rehabilitation is that, according to some surveys, 85 per cent of the population of Quebec is in favour of rehabilitation.
In fact, we believe the initial sentence is not affected by harshness.
It is harsh at the time the judge hands it down. And, since you have not changed it, it remains a life sentence.
Now there are certain processes laid out under the Parole Act. Here the goal is to refuse — and this is the most detrimental part — future convicts the possibility of making this kind of application. We do not agree with that and we really have the sense that this is an ideological position, a desire to punish, when in our view, the Criminal Code as a whole — the entire criminal law system — has always been seen as a balanced system which considered the individual to be judged — and not society. . . we are talking about the trial of individual by society requiring a multifactorial assessment, both in terms of the facts, and even more so, with respect to the sentence.
We clearly believe that this is detrimental and that this bill could open a can of worms.
Senator Carignan: Mr. Downes, would you care to comment?
[English]
Mr. Downes: Of course, legislation should reflect the public's view. There is no doubt about that. However, it should reflect an informed public's view. It is unfortunate that our media does a horrible job of explaining the realities of the criminal justice system, sentencing and many other things.
It also depends how you ask the question. If you say to someone, "Do you think Paul Bernardo should get parole?" Every right-thinking person will say: No, he should stay in jail for the rest of his natural life. If you present the circumstances of someone like Mr. Sauvé, which I referenced earlier, and you ask the public, "Do you think someone who has demonstrated over the course of 15 years true rehabilitation and the capability of contributing to society should have an opportunity to put his case before members of the public by way of a jury?" many Canadians would say, "Yes, he should have, because that is a fair and civilized way of proceeding." It very much depends on how you frame the question.
As outlined in your commentary, the criteria for getting early parole are detailed and specific about what they have to show. If you take the position that murderers should get life, no parole, end of story, then we will not agree that that is a civilized way of approaching the treatment of offenders.
The best measure we have had of the public's view is jurors who go through this, which happens a lot. Jurors come in knowing nothing about the system. You often hear them at the end of a trial saying they never realized what it was like. They leave with a respect for our justice system, for which we often do not give them credit.
The Chair: Senator Carignan, I will interrupt briefly for a clarification.
Mr. Downes referred a couple of times to a Mr. Sauvé who benefited from the faint hope clause. I want to specify that the reference is to Mr. Rick Sauvé, from whom we will hear tomorrow, not Mr. Marc Sauvé, who is before us as a witness tonight.
[Translation]
Senator Carignan: My question is addressed to Mr. Di Luca. You provided statistics on incarceration. The last time I looked at statistics on incarceration rates per 100,000, Canada was in 118th place, with a rate of 116 per 100,000, which is well below the American rate. Indeed, the United States is in first place. There are a great many countries which are ahead of Canada in terms of their incarceration rate.
Are those the statistics you have? Because we could also talk about the length of sentences, which can vary if the sentence is a longer one for cases involving murder; however, the number of individuals incarcerated per 100,000 in Canada is still close to the global average, or perhaps a little lower. Is that correct?
[English]
Mr. Di Luca: Yes. The issue that concerns me primarily is not so much the rate of incarceration per capita, about which I agree that we are in the middle of the pack. It concerns me that with how long we keep people in jail who have committed first-degree murder, we are at the highest end of that range. In comparison with the jurisdictions we look to out of respect to learn policy, jurisprudence and legislative efforts — nations that we rank ourselves amongst — we impose far lengthier sentences. That is my concern.
[Translation]
Senator Carignan: Let us not forget that there are some that put them to death. So that brings down the rate. Thank you.
Senator Joyal: Welcome, gentlemen. I read the brief prepared by the Barreau du Québec and I can tell you that I feel very well represented by the Barreau du Québec and am proud to be a member.
I would like to come back to one point that you raise in your brief with respect to the impact of the proposed change in terminology between "substantial likelihood" and "reasonable prospect", which is the term currently used in the legislation.
[English]
The English version is "substantial likelihood" and "reasonable prospect."
[Translation]
Mr. de Luca, you mentioned this in passing, but I would like to know how much more satisfied a judge will have to be, when considering the facts and relevant information, to determine that there is a substantial likelihood, as opposed to a reasonable prospect?
Because not only will the judge have to assess the difference in level, but if there were an appeal lodged — because the Criminal Code does make the judge's ruling appealable under subclause 745.62(1) — you would also have to present arguments, if the judge's decision were appealed, on that definition of the evidentiary standard, the quantification of the evidence and the judge's wrong decision.
So, in your opinion, what aspect of the word "substantial" compared to the word "reasonable" implies a higher standard in relation to the evidence?
My question is addressed to your colleagues, as well as my fellow members of the Barreau du Québec.
[English]
Mr. Di Luca: The standard is significantly higher. When you are looking at a reasonable prospect of success, a judge will look at the material in the file and say, "If this goes before a jury, I can see how a jury might accept this and might make the findings." Judges respect the province of the jury to make those findings.
When you are getting to the level of substantial likelihood, a judge nearly has to wade into the evidence and really look at it and say that more likely than not, this jury will conclude that this person should have a reduced period of parole eligibility. It requires the judge not so much to have a threshold screening, to say, "Yes, this is not Clifford Olson or Paul Bernardo — get rid of them, send them away; they are here for the wrong reason — but this person has a legitimate shot." They are now past that. This now requires a judge to invade the province of the jury and get their hands dirty, in a colloquial sense, obviously, to try to figure out how strong the application is, which is the province of the jury.
You are absolutely correct in pointing out that there is an appeal route from that screening function. Now you can anticipate that if judges are exercising their discretion to conclude that the substantial likelihood test has not been met, guess what will happen. There will be an appeal of that decision. That adds timing and backlog and makes it that much more difficult, and what you are really preventing anyone from doing is giving it to a jury, letting the jury decide it. We set this up so that judges were there to screen out those who really do not deserve to be there, those who are doing it for publicity, or to harm or taunt the victims and their families, and we have now changed the process dramatically.
[Translation]
Mr. Trudeau: I would just like to add that, when the application is filed, the judge up until now has had to look at whether the application is consistent with rules of practice at the Superior Court or the conditions set out in section 745.63 of the Criminal Code, where it states that the application must include information regarding the character of the applicant, the applicant's conduct while serving his sentence, the nature of the offence for which the applicant was convicted, any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section, and any other matters that the judge considers relevant in the circumstances.
So, I am not a judge, but —
Senator Joyal: Not yet.
Mr. Trudeau: At the time I was involved in a judicial review, it was under the former regime which does go back to 1990, but back then the judge had to consider whether the application met all the criteria or whether, prima facie, the offender had met the minimal burden. It is obvious that the judge would not authorize an application where there are six different reports stating that the individual is manipulative, that his conversion is very recent and that he only admitted his crime six months ago, because he is now 14 years and 6 months into his sentence.
"Substantial likelihood" versus "reasonable prospect" is not just a question of semantics. We speak the language and what this means is that the application must suggest that there is a real possibility for the jury to reach a decision. Is the judge expected to gaze into a crystal ball? No, I do not think so, but he does have to have a certain degree of conviction, and in order for that to be the case, he will obviously have to review the file as a whole far more carefully and extensively. Under the circumstances, we do not think this is an impossible burden to meet, but it is a burden that greatly complicates and slows down the process, as it requires an additional filter to be applied to an individual who is certainly, in our opinion, one of the very rare ones to have succeeded in getting that far.
I must say that in Quebec, the correctional service provides assistance to people in order to identify and help the best of them to mend their ways. There is a lot of support for inmates in Quebec, for those who seem to be most worthy, in order to ensure that if an application is made, it has a realistic chance of success at the first and second stages.
I believe this bill would remove that right for future convicted persons and for those currently serving a sentence; the application process is made more complex by all kinds of technicalities, rather than focusing on the integrity of the process and trusting the jury.
[English]
Senator Joyal: Mr. Di Luca, you mentioned that in other places in the Criminal Code it is very rare that we have the threshold of substantial likelihood. Could you identify where in the code this does exist in order that we would be in a position to balance the impact of this versus what already exists in the code?
Mr. Di Luca: Substantial likelihood is found in the bail provisions; if the Crown can demonstrate that there is a substantial likelihood of a person committing a further offence, that might be a reason to deny bail. The general test, which is not found in the Criminal Code but in the case law, would be an air of reality. For the vast majority of defences, the judicial screening function is satisfied on the existence of an air of reality, which is a lower test. That test was chosen on purpose because there is a constitutional and historic divide between the function of the judge and the function of a jury, and we are not there to have a judge intrude on the province of the jury and decide matters that are to be saved for the jury.
In fairness, this is a bit of a unique process. It is not a long-standing historical process; it is new and a little different. By "new" I mean 30 or 40 years. We have already gone beyond air of reality by requiring a reasonable possibility of success, and that standard seems to work. Is there any evidence before this committee or others looking at this bill that that standard is failing to capture and weed out the un-meritorious applications? I have not heard anyone testify that the Clifford Olsons and Paul Bernardos are showing up once in a while and visiting harm on people just for the sake of doing it. It seems to be relatively well structured, and the people who have come to me seeking that sort of review tend to be individuals who have a plan in place and have given it thought. It is relatively rare that a person does this just for the sake of causing harm, getting some media attention or getting a holiday from the penitentiary.
[Translation]
Senator Joyal: What strikes me about this bill, as currently worded, is the fact that a judge receiving the application must consider a series of facts and pieces of evidence at a very high level in order to draw a conclusion. And that conclusion — now I hesitate to use a French word that the translators might have trouble with — would have to be almost unchallengeable. In other words, no other conclusion could possibly be drawn — put simply, that is what it means.
When a jury considers the same facts and information, it does not have to apply that same high standard in performing its assessment. Basically, it must do exactly what the Supreme Court stated in the case you quite rightly referred to earlier, which is that it must assess the information based on the balance of evidence.
What this means, ultimately, is that the same facts and information would be subject to two different tests. That is where I find a certain inconsistency in what is being proposed in this bill. And in practice, if the application is refused and ends up before the Court of Appeal, I wonder how the Court of Appeal will possibly be able to reconcile different findings stemming from two assessments of the same facts and evidence by the judge, based on the application, and by the jury, based on whether or not parole should be granted.
Mr. Trudeau: I agree with you. It is our submission that such a burden — in terms of the judge's initial analysis — creates a barrier that the applicant does not encounter when making an application in front of a jury. We are saying exactly the same thing you just said. The judge's decision runs the risk of preventing the jury from exercising its jurisdiction. It is in that sense that we believe there is a limitation placed on judicial discretion in term of the jury portion, because we would refuse access to a jury which would have to justify its opinion based on a two-thirds majority. Unanimity is not a requirement, but two-thirds of the jury must agree to grant parole; if that is not attained, parole is not granted and the jury has discretion to determine the amount of time that should elapse before a new application can be made.
I do not know how the Court of Appeal would be able to reconcile these two different burdens or standards for a single application, because we are still talking about the same application. That seems rather paradoxical to me. I must say I really wonder whether there are other cases in the Canadian criminal law where double standards such as this exist.
At first glance, I would say there are none. This warrants further consideration.
The Chair: Unfortunately, we do not have time to consider it further here.
Senator Carignan: Just one clarification, if you do not mind. There is no double burden, in the sense that the judge has to decide if there is a substantial likelihood that the application for parole will succeed in front of a jury. However, the judge is aware that the jury will be making its decision based on a different burden. So, the judge considers whether there is a substantial likelihood of success in relation to his own decision.
Mr. Trudeau: There is a double burden at two different stages.
Senator Carignan: But the judge considers that.
The Chair: Gentlemen, I think you have both expressed your views on this. We are now going to move on.
[English]
Senator Wallace: Thank you, gentlemen, for your presentations. There are obviously many components to Bill S-6. Frankly, I did not hear support from any of you for any elements of it. To the contrary, you obviously are supportive of the existence of the faint hope clause.
What we have heard from others who support the repeal of the faint hope clause is that they would get what they see as a better balance between the rights of victims or victims' families — I guess victims' families, in the case of first-degree murder — and the rights of the convicted. I would refer you to the comment we have heard that in the case of a first- degree murder conviction, beyond the 15-year period when the faint hope clause would first provide the opportunity for parole, if parole is not granted, then every two years after that there can be further applications. We hear that creates no end of anguish on the victim's side of this equation.
It is true, as Mr. Di Luca and others pointed out, that the process allows juries; the evidence is heard and discretion is exercised. However, the mere fact that every two years this appeal process can take place and the victims have to relive it repeatedly has been, I think, a major factor that has influenced in some significant way the fact that Bill S-6 is before us.
Mr. Downes, what is your comment on that? Is that not a legitimate concern of victims' families, and one that we as legislators have to take seriously?
Mr. Downes: Absolutely. What victims go through must always be a significant consideration. Nobody would deny that. My only response is that when the screening judge or the jury has all the information, they do have the possibility of saying you cannot apply for a longer period.
Again, I say that is a fair balancing of the individualized process versus the blanket rule, which will serve the purpose you have indicated for victims' families but maybe not serve any purpose at all for the convicted person. That is my short answer. I know we are short on time.
Senator Wallace: That does not guarantee that anything less than every two years the matter could reappear.
Mr. Downes: No it does not, but it puts that faith in the people who have had a lot of evidence put before them. I think that is a fair balance.
Senator Wallace: The effect of Bill S-6 would be to remove the right of parole at the end of 15 years; a life sentence would become 25 years. I believe the justification for that, considering the principles of sentencing set out in the code, which I know you are all well familiar with, is that the fundamental purpose is to contribute to the respect for law and that one of the objectives is the appropriate denunciation of unlawful conduct.
If we as legislators conclude that 15 years served for first-degree murder, which I would think is the worst of all crimes, is not an appropriate denunciation in our society, but rather that it should be 25 years, is that not an appropriate consideration for us?
Mr. Downes: If it is your deliberations and decision that under all circumstances all individuals convicted of first-degree murder are all the same and none of them deserve anything less than 25 before they are eligible for parole, that is a decision I would disagree with it. I do not think it reflects reality. I do not think it serves public safety. I do not think it allows for integration of the appropriate people back into the community. I think that is a blunt tool or an approach to it that does not reflect the reality of what has happened with this legislation.
As I say, we can all say it should be 50 years or it should be 40 years or whatever — the number is the number.
Senator Wallace: It is not a formula; it is judgment based upon all of the factors.
Mr. Downes: That is right.
Senator Angus: I want to make a point of clarification. I think it was clarified at the end of Senator Carignan's questioning, but let me be sure.
It has been said over and over to us in this hearing on this bill that Canada has the longest sentences. Who are you comparing us with? It seems to me that many other countries have capital punishment for these crimes. Does the comparison not totally distort the numbers? Let us start with the U.S.
Mr. Di Luca: Even accounting for the states that have capital punishment, we still sit relatively high. I think our average was 28 years and change for first-degree murder. You compare us to New Zealand, the U.K. or Australia —
Senator Angus: There is no capital punishment there?
Mr. Di Luca: Not in all of those places, correct. You will see we sit very high on that range. I think when these provisions were first brought in was recognized that life 25 was well above what was customarily the length of time served by the average offender on a murder conviction throughout the Commonwealth. The trade-off was that we will take capital punishment off the table and give life 25, but here is a safety valve so that we are not lumping all the people into that one group and leaving them there. The very existence of this provision recognizes that the number, life 25, sits pretty high on the scale. That is our concern.
Senator Angus: Is Canada the only place that has that faint hope provision, among these different countries?
Mr. Di Luca: To my knowledge, I think it is. I do not have any direct knowledge of other nations that are using the same system.
Senator Angus: The origins of the provision relate to a trade-off; is that what you are saying?
Mr. Di Luca: The classic Canadian compromise.
Senator Angus: Is there a doctrine on that? Is that easily verifiable?
Mr. Di Luca: I would have to do some research on that. That is my understanding, and I stand to be corrected.
[Translation]
Senator Angus: I, too, am a member of the Quebec Bar and I do not agree with you.
Mr. Trudeau: In our brief, we refer to the House of Commons Debates on May 6, 1976, where Parliament at the time explained that this was a trade-off to the 25-year term.
Senator Angus: On what date?
Mr. Trudeau: May 6, 1976.
Senator Joyal: You can check, I voted.
Senator Angus: You never change.
Mr. Trudeau: In the bill under consideration, even if the "faint hope clause" is repealed, what difference will that make under the Criminal Code between a first-degree murder and a second-degree murder, in terms of the sentence that is handed down? There will certainly be a need to revisit these provisions.
While the legislature did wish to set different criteria depending on the type of murder, it also recognizes that there could be a different sentence, there again, depending on the seriousness of the crime and the type of murder committed.
[English]
Senator Angus: Mr. Downes made it clear that you do recognize the issue of the victims, the rights of the families. It seems, Mr. Di Luca, you also recognize why there is a public outcry and a sense that our system is not working and is too soft on these people and that there is a great need for an education campaign to make people understand why it works this way. Did I get it right?
Mr. Downes: Senator, I represent victims as well.
Senator Angus: I understand you do.
Mr. Downes: Several of my clients are victims who come for advice. They come with complete bewilderment about what is happening, and the best thing you can do is help them understand it, and often they say, "Now I get it. No one has told me that before."
Senator Lang: I want to go back to the idea of truth in sentencing. Unfortunately, there is across Canada I think a lack of confidence in the legal system. I think most people do not realize that when someone is sentenced for one of the worst crimes in society and the judge says 25 years, it probably will not be so. The public thought it was 25 years, and then 15 years later they find out it was not necessarily the case.
Mr. Di Luca: It is 28 years, statistically. If we are talking about truth in sentencing, the public are getting a bargain — more than they bargained for — because they are getting three years and a month more. The average time spent in jail on first-degree murder charges in Canada is 28 years, so the people who sat in the courtroom and heard 25 are getting 28 years.
Regardless, they are being misinformed. It is not 25 years; it is life. If people sentenced to life do not convince the parole board after 25 years, they will sit in jail until they die. The onus is on them to prove to a skilled parole board, staffed by people who know what they are doing and have expertise in the area, that they are safe to be released. It will never be perfect, I agree, but there is some truth in sentencing in a broader sense. With some proper education and proper information, we can lift those misconceptions.
The Chair: Thank you very much, Senator Lang. Thank you all. This is really stimulating stuff on both sides. We are very grateful to you.
We are privileged to have with us now, as our second panel of witnesses this evening, from The John Howard Society of Ontario, Ms. Paula Osmok, Executive Director; from The John Howard Society of Peterborough, Ontario, Ms. Barbara Bird, Senior Counsellor; from the Canadian Association of Elizabeth Fry Societies, Kim Pate, Executive Director and a familiar witness before this committee; and from the Association des services de réhabilitation du Québec, Mr. Patrice Altimas, Managing Director.
Paula Osmok, Executive Director, John Howard Society of Ontario: The John Howard Society is an agency with 65 offices across the country that helps to improve the safety of Canadian communities by working with those who have been involved in the criminal justice system to reduce further offending. Our mission is effective, just and humane responses to crime and its causes, and our work is grounded in the research on what works to prevent crime and recidivism.
As an agency with decades of experience working with the Canadian carceral system, as well as in communities affected by crime, we have a unique and ideal vantage point from which to consider the success and challenges of Bill S-6, to amend the Criminal Code and the International Transfer of Offenders Act. It is our position that the repealing of the faint hope clause, as outlined in Bill S-6, is contrary to the evidence and even to the interests of the public. We believe that this bill is both unnecessary and counterproductive to the goal of safer Canadian communities.
Eliminating the faint hope clause, which in practice only allows the earlier application for parole of a handful of already assessed, low-risk, rehabilitated applicants who have already served at minimum 15 years of imprisonment, is unnecessary, costly, and will not improve community safety.
First, the faint hope provision, section 745.6, is taken up by an extremely small number of people, as you heard earlier. According to Statistics Canada, of the 991 prisoners who have been eligible since 1987, only 130 have been released on parole early. Fewer than one in five eligible prisoners even initiate the process. Any concern that section 745.6 is being overused or used improperly does not appear to be warranted.
The data shows that of the 173 cases where juries have to determine whether an offender should be granted an earlier parole eligibility date, only 143, 82.7 per cent, are granted earlier eligibility. While this number may appear high, it is important to emphasize that those offenders who apply for judicial review are likely to be the most low-risk and well behaved of the larger population of eligible offenders. Said differently, only those with strong cases will apply to begin with. The cases of the infamous murderers applying are clearly the exception, and they are treated accordingly.
Second, the data does not suggest that the faint hope clause is being abused, nor does it indicate that large volumes of offenders convicted of murder are being released. Only 130 offenders have actually been released on parole under section 745.6 since 1987, and that averages to approximately six released offenders per year who have already served at least 15 years of imprisonment.
Third, and of central concern to the public and to the government, is the issue of whether, once released into the community, the successful applicants commit more violent offences or homicides. That clearly is an understandable worry, but data again shows that it is unwarranted. It indicates that the section 745.6 regime is operating effectively. Very few of the paroled applicants have had their parole revoked for committing a new offence. A fact sheet released by the Department of Justice Canada in 2001 shows that out of the four parolees whose parole was revoked for committing a new offence, three of the four were for a drug offence and one was for an armed robbery. While I agree that any degree of recidivism is clearly not desirable, these numbers do not shake our confidence in the rigours of the judicial review process, nor do they cry out for the drastic changes that are contained in Bill S-6.
A central argument during the release of this bill was the perception that ordinary Canadians were demanding changes to the faint hope clause. However, we would argue that there really is no clear evidence of this. Public opinion research by some of Canada's pre-eminent criminologists, Anthony Doob and Julian Roberts — both names with which I am sure you are familiar — shows that when ordinary citizens are provided with the level of detail that judges receive during hearings or trials, they overwhelmingly support the decisions of the judges and in some cases actually support more lenient decisions.
Furthermore, it is important to remember that decisions on allowing early parole eligibility under section 745.6 are made by juries, that is, actual members of the ordinary Canadian public. This would seem to be the most important evidence that this process is in line with the views of ordinary Canadians.
Our position is that the amendments proposed within Bill S-6 are unnecessary and in direct contradiction to the demonstrated interests of the Canadian public.
At this point I will cede the floor to my colleague, Barbara Bird, who is a senior counsellor with The John Howard Society of Peterborough and who has spent her career as a front-line worker with federal offenders.
Barbara Bird, Senior Counsellor, John Howard Society of Peterborough: I am a front-line worker, a senior counsellor and a certified traumatologist at The John Howard Society of Peterborough. I have been with The John Howard Society for over 17 years. I am here today to speak about the benefits of this process as I have seen it in my experience and explain why I and The John Howard Society believe that Bill S-6 will be counterproductive to the goal of a safer Canada.
It is well-known that offenders serving life sentences are generally lower risk than other offender populations and, as such, less likely to reoffend upon release. The literature on release outcomes of offenders who are sentenced to long- term sentences, for example, more than 10 years, such as those who serve sentences for first- and second-degree murder, indicates that these offenders have lower rates of re-conviction than offenders who serve shorter sentences. Those serving life sentences tend to have shorter criminal histories and are released at an older age than those serving shorter sentences.
However, increasing terms of incarceration may actually increase the likelihood of recidivism. A body of research literature on the effects of long-term incarceration suggests that "increasing the length of prison time served actually increases criminal behaviour among offenders," as noted by Karin Stein. This criminogenic effect of incarceration is even more pronounced for low-risk offenders, who appear to be even more detrimentally affected by the experience of imprisonment.
It is therefore both counterproductive and counterintuitive to eliminate the faint hope clause for offenders who are demonstrably low risk, potentially increasing their likelihood of offending once released back into the community. Given that those serving long-term sentences are of a generally lower level of risk than other offender populations, it seems counterproductive and counterintuitive to eliminate the option of section 745.6 for offenders who have demonstrated their efforts at rehabilitation while in prison. Keeping these offenders incarcerated for long terms without any hope of earlier parole eligibility could in fact increase the risk of recidivism upon the eventual release of these offenders. The amendments contained in this bill, which could potentially increase the risk to ordinary Canadians, again seem a curious way to achieve the government's goal of better protecting Canadian communities.
Bill S-6 is also counterproductive because, while it will not improve our community safety, it will be extraordinarily expensive. Ordinary Canadians may question why their government would opt to spend additional millions of dollars by eliminating the faint hope clause when there will be no improvement in their safety or in the well-being of others.
It costs approximately $101,000 a year to house one federal offender in prison, while it costs less than $25,000 a year to supervise an offender on parole and maintain people serving sentences in the community. This massive difference in costs is not only an unnecessary expenditure when a prisoner could be paroled with no appreciable risk to public safety; it is also money that is not available to less expensive and more effective criminal justice policy options.
The John Howard Society believes that Bill S-6 would make regrettable changes to the Criminal Code. The elimination of the faint hope clause is both unnecessary and unproductive, and we encourage the committee to reject it. Thank you for the opportunity to address you today.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you very much for inviting us to attend. I bring regrets from the President of the board of directors, Ms. Lucie Joncas, who had hoped to attend with me.
As you are aware, our organization works not just with women in prison but also with women who are marginalized, indigenous women, poor women and women who are victimized. Some of the Elizabeth Fry Societies run shelters for battered and homeless women and provide some of the only victim and social services in their communities. We also work with women who are criminalized and institutionalized, in prisons and mental health institutions, detention, immigration detention facilities and the like. It is from that perspective that we approach this bill.
In addition, you might be aware that all of the judicial review cases involving women are cases that I have had the responsibility, opportunity and, in some respects, privilege of working on. All 11 women who have been eligible to date are women that I know and with whom I have worked in conjunction with their counsel. I can tell you that only one woman has chosen not to apply.
Part of the reason we work with these women is that we recognized fairly early on while looking at the implications of section 745 that if we did not work with them, they would not even apply. They did not feel they deserved to apply. Many of them, six of the ten, who have applied had killed abusive partners and still held the remnants of the histories of their abuse. Their view is that even though they were defending themselves, they were tried and convicted at a time before we had dealt very well with battered women. I would suggest that often we still do not deal well with battered women. They are women who took responsibility and often would not agree to have their children testify. Their children were often the only witnesses to the abuse they had experienced, and so these women served sentences.
One woman, who died recently, did not apply for judicial review because she felt that when she was tried in the first instance, it was such an embarrassment and negative situation for her family, particularly her children, that she would not agree to have anyone testify. There was virtually no evidence in her favour in her defence. Even though she was convicted, when she became eligible for judicial review, there was ample support for her to apply from Correctional Service of Canada, CSC, from members of the community and from members of her deceased partner's family. She refused again because this time her grandchildren would be impacted. She died recently in prison of natural causes related to aging. I put that in context. These women, but for some of the circumstances and the state of the law and the fact that self-defence was built around a male defence, may very well not even have been convicted. Recently, we have been able to intervene in cases to prevent them from ending up convicted in such situations.
What does that have to do with this bill? It has to do with removing even that opportunity for those women to have the benefit of judicial review.
Of the women who have applied, two were not women who had killed abusive partners and two have not been deemed eligible for an earlier parole and eligibility period. All are still serving their life sentences.
You have an opportunity here not just to reject Bill S-6 but also to provide some accurate public information to members of the public and to victims. When victims are told that judicial review is a get-out-of-jail-free card, it is inaccurate. If people do not get out, are not eligible or are not even granted at the first instance by the chief justice and there is not some hope of their being able to apply and be successful, the test that is being suggested, the changed test, will take away the discretion from the very community that wants a different result, as those who support Bill S-6 would say. If you are successful and the chief justice determines that you can go forth for a judicial review, you then go before a jury from the community where you were convicted. You are going before community members from the very community where the offence occurred in the first place. You take away the discretion from those very individuals to determine whether this person deserves some opportunity to apply to get out.
One woman is the only person in the country to be successful in judicial review and be out within 18 months. For every other person I know, it has been at least 2 to 6 years of applying to the National Parole Board. Before the application, they have to complete their correctional plan of programs, which they often were not given access to in advance of their review date because they were lifers and expected to be in for 10 years. They are not the first on the list and are in fact the last on the list for the programs.
As mentioned, they would have to complete the required programs in order to get a positive recommendation from CSC in order to then apply to the National Parole Board for its consideration. Of those successful in getting to that stage and day-paroled to a halfway house, most have stayed at least two or three years, even though the parole ineligibility cut said they were immediately full-parole eligible. One has gone out immediately to full parole and continues to do well. She works in the area, contributes to the community, and is a tax-paying member, but she is still a woman serving a life sentence. Every time she goes more than 50 kilometres out of her radius, she must get approval and everything documented about where she is going and what she is doing.
You have heard many legal arguments before the committee. I do not need to repeat them. In practical ways, it is important for you as senators with a fiduciary responsibility to Canadians to ensure that the Charter is upheld, that we have due process entitlements upheld and that we have a fair process in being aware of what is happening on the ground with these reviews. I appreciate that Ms. Bird has shared some of that.
It might be of interest to you to know how many individuals contribute back to the community once they have gone out. None of the women we work with has been re-convicted. A number of them have gone back into the prisons to assist other women. They assist in rehabilitative efforts with young people in the community and try to contribute in a way that is meaningful. A number of them have reconnected with those who would be characterized as victims. I say "characterized" because the victims are the people who are dead. It is important for you to think about the long-term implications of changing this measure and removing that opportunity for those who earn their way out. As has been said, in our experience, if people have no hope of going forward, in fact they do not go forward. To re-enter the community, there are rigorous tests at many stages from the chief justice to the jury to Correctional Service of Canada to the National Parole Board and in the community through the halfway houses.
[Translation]
Patrick Altimas, Managing Director, Association des services de réhabilitation sociale du Québec: Thank you, Madam Chair. I am glad I kept my opening comments very brief, because had I gone into more detail, I might have repeated what colleagues have said before me.
Therefore, I will be brief. On behalf of the ASRSQ and its members, I would like to thank the committee for inviting us to present our views on Bill S-6.
Established in 1962, our association represents 58 community organizations who do not fantasize about rehabilitation and who, for the last 50 years, have been working on a daily basis with offenders to foster their rehabilitation.
As I said, the ASRSQ has 58 members, meaning that there are more than 800 employees all across the province and more than 500 volunteers who work with approximately 35,000 offenders every year including some — many — who are sentenced to life in prison.
If the committee asked me to make one very brief comment on Bill S-6, which proposes to repeal the faint hope clause, it would be: "Why?", and I could simply stop there. But I will go further than that.
The fact is that, in terms of the goals it sought to achieve, the experience since 1976 — when this clause was included for the first time — has been a success. When something works, you do not normally change it. As the expression goes in English: If it's not broken, don't fix it.
The statistics that have been provided to this committee — and I do not intend to go over them again — indicate that there has been no abuse of the system, considering that only 180 applications for judicial review before a judge and jury have been heard, out of a possible 1,062, or 17 per cent. Of that number, 33 applications were dismissed, representing barely 3 per cent of all eligible cases.
Finally, the vast majority of offenders who are released following a judicial review continue to live as law-abiding citizens and there have been no cases of repeat murder offences that we might have cause to regret. So, why?
One of the interesting features that would disappear if the possibility of judicial review were to be removed — and my colleague referred to this — is the possibility for community representatives — in other words, the jury — to express its views on the potential rehabilitation of a member of that community. That option would no longer exist.
As for the victims, who are mentioned repeatedly in the government's arguments, it seems the government is more interested in nurturing the conflict between the victim and the offender than in defusing it, so that healing to occur. I am sure everyone will agree that the victims need service and assistance throughout the judicial process.
But how would repealing the faint hope clause assist the victims? How would keeping offenders in prison for extended periods of time help to defuse the conflict between the offender and the victims, and allow healing to occur?
The experience of ASRSQ member organizations in every way reflects the already noted success of the faint hope clause. We see no valid argument that could possibly militate in favour of its repeal. I said I would be brief, and I was.
The Chair: Thank you very much; thank you all.
[English]
Senator Carstairs: Ms. Pate, I was very interested in your details about the years that it takes them to get out. I think there is a fallacy that with a 15-year sentence, everyone gets out at 15 years. If there is 25-year eligibility for parole, everyone gets out at 25 years.
Of the 10 cases that you dealt with, I think you said one had gotten out 18 months from the time she had received approval. How long did it take her to get the approval, however?
Ms. Pate: In that case, she had done all of her programs. She started and insisted all the way through. She came in with post-secondary education. That is significant. Unlike one of the women, who had an intellectual disability, who understood nothing, had done none of the programs and took one of the longest periods of time, more than four years, this educated woman insisted on taking the programs, used the grievance programs, participated in all of her programs, had everyone's recommendation. She had a lawyer in place, and on the day of her fifteenth anniversary of her conviction, her application was filed. Then the hearing was scheduled within five or six months. Luckily it was a slow time. It was in Winnipeg, and it was a slow court time. She had a summer hearing. Within a year she had the decision, and then within six months was before the board and had recommendations from everyone to get out. That was the earliest I know of. I do not know of any men who have been able to get out that early.
On the other hand, the woman with the intellectual disability had done virtually none of her programs, and none of the paperwork was ready to go on her fifteenth anniversary. It was not ready until a few months past her seventeenth anniversary. It was another year before it was in court, and it was almost 19 years before she was able to go out into the community. She continues to go back and forth into halfway houses because of her intellectual disability and the need for support. She was the first one in Alberta.
Senator Carstairs: I would suspect that the second case is more typical of the prison personnel than the first case, the woman with a post-secondary education. I asked Correction Service of Canada the other day how these people who will still be allowed to apply will get all of this done in 90 days. The answer was there is documentation in the library.
Ms. Pate, do you have any statistics on the literacy rates of the majority of inmates in our correctional facilities?
Ms. Pate: The literacy rates have gone down since 1992 when post-secondary education was removed from our federal penitentiaries. Right now there is a move to get everyone up to a general equivalency diploma, GED, level, which is equivalent to Grade 12. The average is anywhere between Grade 5 and Grade 8 in many institutions. Again, it depends on the population. We have increasing numbers of people with mental health issues, so even if they have an education, they may not be able to cope or move through. If they are housed in the more secure areas, such as segregation, they may not have access to programs anyway, even if they are able or want to take them.
This will have a disproportionate impact on any Aboriginal women who are eligible, and certainly for the one Aboriginal woman who has applied it was a challenge. In fact, she still is in a halfway house. She is raising her grandchildren and tried to do it whilst having two residences because everyone is supportive of her moving out, but it was a high-profile case and so there is a lot of reticence. She is now approaching her nineteenth anniversary as well.
Senator Carstairs: In this 90-day provision, which is not even negotiable or debatable — it is 90 days or nothing — you wait another five years before you can make an application. Is that realistic? You work with these prisoners all the time. Can they do this in 90 days?
Ms. Pate: We are in the Federal Court of Appeal right now trying to get Ashley Smith's files, and it has been three years and waiting. I do not know how prisoners could access their own files. We have that difficulty right now. It is not just "we." We have 17 regional advocates across the country. I am involved in every one of those cases. Fortunately, the numbers of women are smaller.
Part of the reason we are involved is because it needs that kind of push. If you cannot get access to a telephone to call a lawyer, how do you know who can do a judicial review to start with? If you do not have access to your own files, how do you proceed? Increasingly, some of the institutions will not allow prisoners to keep their own files because of fear of privacy or confidentiality, which is a laudable concern, but there is a provision; they would have a lockbox. However, the overcrowding means they do not have room for a lockbox to keep their papers.
I would be very surprised. It would be the rare woman like the one I mentioned who had a post-secondary education who might be able to achieve that in the 90 days. Most of them would not be able to. Even with the best intention and best support of correctional staff right now, we see that people are not having the assessments done that are supposed to be done within 90 days when they come into an institution, and there is not all the baggage of 15 years of serving time to sort through in that context.
Some of the delays I mentioned have been caused by Correction Service of Canada trying to find a parole officer to do the report that CSC must send to the court to be considered. Sometimes those have taken six months or more to complete.
[Translation]
Senator Carignan: My question is addressed to Ms. Pate. I want to be sure I understood her testimony, which was that 11 women were likely to apply under the "faint hope clause". One of them did not apply because she died and the other 10 did not either, to avoid upsetting their child by forcing him or her to testify. Did I understand your testimony correctly?
[English]
Ms. Pate: No, I am sorry that I was not clear. Of the ten women, one is in the process of applying now, nine have gone through the process, and one has not applied at all.
Senator Angus: She subsequently died.
Ms. Pate: She subsequently died. Of the ten in process, in one case we do not have a decision yet because it is just in process. Of the nine who have applied, seven have been successful, which is higher than the general rate, and it is partly because, since the beginning, we have intervened to go and find all of the women who are serving life 25 and try to assist them through the process from the beginning of their sentence.
[Translation]
Senator Carignan: You seemed to be saying that some had refused to move forward with their application in order not to upset their children, who might have been called upon to testify. That was the part I wanted to be sure I had understood correctly.
[English]
Ms. Pate: The woman who would not apply, even though she had a very strong case, was supported by Corrections because of that reason. I apologize for my lack of clarity, but I was linking it to why there are a number of women in there. Six of the eleven are women who had been involved in the deaths of abusive partners. They are women who we would argue could have had the benefit of self-defence arguments that were not put forward, could have had the benefit of defence of others that were not put forward, or at the very least may have had provocation, or there may have been a possibility of a guilty plea to manslaughter in some of those cases. Those are some of the reasons we started to intervene as well, because we used that information to assist women who were going through the trial process.
[Translation]
Senator Carignan: That is interesting, because the decision-making process that these women refused to involve themselves in, in order that their children, the victims, would not be forced to testify, reflects exactly the same reasoning the government is invoking to withdraw the right to apply under the "faint hope clause". The whole idea is to avoid forcing victims to have to constantly face their family's or their child's aggressor, and to have to testify again and again. So, I found it interesting that you referred in your testimony to cases of women who had made this decision on their own out of a desire not to force their victims to relive what happened. I wanted to clarify that position.
[English]
Ms. Pate: If I could clarify, it is a very different issue, I would suggest, when women are uncomfortable standing up for their rights, in situations where they have been the victims of violence, because of broader societal attitudes that condemn them for the abuse they have experienced. I teach a course at the law school on defending battered women on trial for this reason as well, because we know that often the women are not supported in their own families. They are expected to deal with whatever the situation is, not air their dirty laundry, so to speak.
Police may not come when called. There are a number of cases involving Aboriginal women where they may have called two or three times and no police come until someone is dead. There is lots of evidence of that. We know that even when police do come, the women are increasingly likely to be charged themselves if they have used any kind of defensive force, and we know that women are at greatest risk when they try to leave a relationship. Given what we know about battering and abuse, it should not be a surprise that women then are not willing in their trials, or at any time, to put their children in greater harm's way, because they sometimes have internalized those sexist attitudes about how women deserve what they get sometimes when they are in violent relationships. It is a very different thing than saying victims are asking for it.
[Translation]
Senator Carignan: But there is a commonality there; they do not want their children to have to relive those extremely traumatic events.
[English]
Ms. Pate: That is true. However, I would suggest there is a significant flaw in our system when women will not be given the full benefit of the law of defence and will not be protected in the first instance by police and by our system, and then we further compound that punishment, essentially.
[Translation]
Senator Carignan: My second question is addressed to Mr. Altimas. With respect to the rate of recidivism, you said this had been quite successful because none of the offenders who were released had committed another murder. But how are you able to conclude that there were no murders? Simply because they were not arrested for murder? The fact is that they may have committed murder, but we just do not know.
Mr. Altimas: That is speculation. Personally, I do not engage in speculation when I am looking at empirical data. That kind of argument suggests to me that if we speculated about this and that, there are a great many things we would probably not do or that we would change. I have to base myself on factual data, which show that among individuals who were released on parole following a judicial review process, there were no repeat offences involving the same type of murder offence. I have no reason to believe that there were and I have no intention of speculating on that.
Senator Carignan: The statistics show that there were no new murder charges laid against these individuals.
Mr. Altimas: Yes, that is my observation.
The Chair: I believe Ms. Osmok would also like to comment.
[English]
Ms. Osmok: It is important to remember that the people we are talking about continue to be under supervision while in the community. They are still reporting to the parole officer on a regular basis, and other conditions may well be imposed that they need to abide by as well. These people are certainly not disconnected from the judicial system.
[Translation]
Senator Carignan: Yes, but we know that they can commit crimes even when they are under supervision, and we are aware of such things having occurred. In fact, while there may not have been repeat offences involving murder, other types of crimes were committed. The rate is lower.
[English]
Senator Wallace: Thank you very much for your presentations. Ms. Pate, I might direct my question to you. I know you have been before our committee on other bills, and I am quite familiar with the work you do, and it is very important work. As you reminded us today, the Elizabeth Fry Societies are there to provide support and assistance to victims. Of anyone here, you are well familiar with victimization, the devastating psychological impact that can have on people, and you know that as a society we have to respond in an appropriate way to victims.
I know you are well aware that one of the justifications for Bill S-6 is to respond in some way, hopefully an appropriate way, to victims of crime. It is to attempt to try to find — as imperfect as it is — the balance between protecting society, properly addressing the rights of those convicted and involving rehabilitation, and of course the rights of victims of crime, the families of victims, and in the case of first-degree murder, victims who had absolutely nothing to do with the offence and the devastation that was brought upon them but which they have to live with for the rest of their lives. You have experience dealing with victims and know the devastation they suffer. Many victims' organizations and families of victims have advocated strongly for Bill S-6.
Do you find that both the process that is now followed to implement the faint hope clause and the minimum period of incarceration, which would be 15 years for first-degree murder, are inappropriate in that they do not reflect a proper denunciation or penalty for taking a life? That is what the government is hearing and is trying to respond to appropriately. Is that not an appropriate consideration of the government? Is it not appropriate that Bill S-6 address the concerns of victims? I address this to you because I know you understand the psychology of victims.
Ms. Pate: It is always important to be concerned about the issues victims face. Changing the law to reflect the views of certain victims may not always be appropriate. The average sentence served for first degree murder is 28.4 years. That is extraordinary in the world. There are jurisdictions in the United States and some other places, the regimes of which we have never professed to want to follow, that have capital punishment. We increased the parole ineligibility period when we got rid of capital punishment, and we instituted faint hope specifically to have some ability to tailor in situations where it is appropriate. Victims have an opportunity to voice their concerns.
I am not sure whether you are aware that my daughter's father's father was murdered. We deal with the impact of that in many ways. When my daughter's father testified at the time of the 1996 proposed amendments, there were some who felt that he was not the appropriate victim. The murderer was a stranger, not a family member. He has chosen to be part of another group, Families Against Mandatory Minimums, of which we do not have a chapter in Canada, because, mercifully, there are not as many murders in this country. He felt ridiculed when he came forward.
One challenge is to provide a voice for victims who have a different perspective. We do not always do that. I sometimes talk to individuals who say that is not their experience. If they want vengeance and feel they need more time, that that is the best way to heal, they are entitled to express their opinion.
The victims I know, including many who are part of the victims' groups that you are speaking about, will take very different positions on a case-by-case basis, and that is not surprising. If I were dealing with the death of my child or of someone else in my family I might have a very different perspective, especially right after the death. I might take a different perspective for the person who killed that individual.
That is not the position that my daughter's father took, but some might. I cannot predict what position I would take. However, I would hope that as parliamentarians, as senators, as the house of sober second thought, you would look at that and say that in the heat of emotion we can make decisions that may not be the best for the entire country. If I came forward with a very personal story, I might very well want an ear, services and support. I would hope, though, that I would not advocate for the kind of reforms that would impact an entire population without any consideration for individual circumstances, which is the beauty and the challenge of our laws. We do try to individualize and tailor as much as possible. With the current mandatory minimum sentences for first- and second- degree murder, we do not have as much discretion to do that. Faint hope allows a little discretion 15 or 20 years after, or whenever it is applied, and I think that having that opportunity is important.
Senator Wallace: I understand that one of the major concerns of victims' families and victims' organizations is that the faint hope applications could be made every two years after 15 years. Does the concern about having to relive that anguish not seem to be legitimate?
Ms. Pate: I know of one or two cases where that occurred. Those are horrible exceptions that have not gone further. In fact, I do not know that the victims ever even appeared in those cases, because they did not get past the first stage.
I can imagine that having it raised must be an incredibly painful experience each time, but I do not believe they have been anywhere near successful. One reason that many of us oppose some of the provisions in the criminal justice system is that it creates the sense that you will have a say and will be able to participate in the system, when the system actually precludes that. In fact, victims are there only as witnesses, not as individuals who have a say in what happens. It is not an inquisitorial system; it is not a system that takes victims into account, except in a peripheral way.
I humbly recommend that more resources be put into supporting victims early on, not after the fact.
Senator Wallace: I appreciate your comments.
Senator Angus: I thank all of you. What you are doing is an essential part of our system of justice in this country.
Are any of you lawyers?
Ms. Pate: I am a teacher and a lawyer.
Senator Angus: I gathered you were teaching. In which law faculty do you teach?
Ms. Pate: The University of Ottawa.
Senator Angus: You are resident here.
Ms. Pate: Yes.
Senator Angus: I want to talk about recidivism.
Ms. Bird, if I got it right, you mentioned that increasing terms of incarceration may actually increase the likelihood of recidivism, and you referred to some literature on that. Could you help me to understand that? When terms are increased, the offenders are not getting out, so how can they reoffend?
Ms. Bird: When you take all hope away from someone who is incarcerated, they have no will to change their behaviour or to better themselves. If they know that they will be in jail for 25 years, hope leaves them and they join the subculture that is in institutions and get into things that are not good. When they get out, of course they continue in that behaviour. When they have no hope, they will not try to better themselves.
Senator Angus: As I understand it, if they have no hope, they will not get out. Are you suggesting that rather than re- offending when they are back in society they might start murdering people in prison?
Ms. Bird: Yes, and they may also do it once they are back out in the community.
Senator Angus: I have difficulty agreeing with that.
Ms. Osmok: There is empirical research done by Paul Gendreau that associates people who serve longer prison sentences with an increased recidivism rate. We will be submitting to the committee for translation a brief in which we have touched on some of those studies.
The Chair: Could you provide to the clerk after this meeting the reference to the study you just mentioned as well as to the study by Karin Stein that Ms. Bird mentioned?
Senator Joyal: Thank you for your contribution. You bring the perspective of realism to this. To hear it from people who are in the field on a daily basis is very impressive, as far as I am concerned. I thank you for that.
I would like to ask you a difficult question. On the basis of your experience with those inmates, are they concerned with the situation of the victim and the loved ones of the victim and the harm they have inflicted? I am not talking about people like Paul Bernardo or Clifford Olson, because they will never succeed in having their sentences shortened; but for those who work in the context of being able to have that light there at the end of the tunnel, are they concerned with the conditions of the victims' families?
I will put another question to Ms. Pate, Ms. Bird and Mr. Altimas.
[Translation]
Is the jury informed of the applicant's attitude towards the victims — in other words, regarding the psychological damage he or she has caused to the people who could be asked to express their views as part of the process?
Mme Pate: Is it all right if I start?
[English]
Senator Joyal: You mentioned 10 cases and so on.
Ms. Pate: In all of the cases I have worked on, the victims have been a central component. Again, I apologize that I obviously was not clear as I was going through this. Part of the reason we have had to really urge some of the women, in some cases, push them to apply is because they feel they do not deserve it. It is this notion that if they have taken a life as a mother, as the wife or whoever, that they have a responsibility.
In the case of one of the women — it was not a family member, it was a situation involving violence against women — she tried to make all kinds of amends. In fact, she has made some amends to the victims, but none of that was mentioned in her judicial review. It was important to her that it was done out of that process. Therefore, none of the work she has done with the victim's family has been documented. To her, it was important that it was authentic and outside of the process because she did not want anyone to perceive that she was doing it to get some benefit for her case.
There are several women who have made contact. Either they knew the person before they went to prison, or after they got out there may have been some publicity around their case and the victims may have come forward and they have made contact. Recently, I was at a parole hearing where the victims were there and read their statement. It was not a first- or second-degree murder conviction but a manslaughter conviction. The only thing the woman wanted to do was to talk about her remorse. She asked permission to address the victims. The parole board permitted her and asked the victims if she could. It was the first time the victims had ever heard anything from her, because at every stage she was prevented from speaking. For her, that was the most important piece of that hearing. She did not care whether she got out; she did not care what happened. She had hoped she would be able to express her regret.
In her situation, someone else killed the young man, the son of this couple. However, she knew that if she had not been along, he would not have been killed. She was a young Aboriginal woman who was along with a group of young men who were robbing a convenience store. She was caught by their son. The others came back to get her and the young man was shot. She carries a tremendous burden. In my experience, yes, they do feel regret.
When I worked with men and with young people, it was similar. It varies from person to person, of course, but particularly with the women, it is very clear it is front and centre. You may be aware that I developed one of the first victim-offender programs in the country back in the early 1980s. It was non-religious based. Part of what we tried to do was to give greater sensitivity to young people and then adults about the impact of their crimes.
Individuals in prison often have a history themselves of abuse, which can impair their ability to understand. Also, I was a high school teacher before law school, so I am familiar with literacy issues. When you talk about literacy rates, their ability to cognitively understand how their behaviour can impact others is one of the things we took into account in developing those programs.
In my experience, often if you provide that opportunity for that discussion, for that exploration, there is very real interest, empathy and concern. Unfortunately, though, sometimes it then leads to their not being willing to exercise their rights.
[Translation]
Mr. Altimas: I would like to be able to confirm that, but I have no direct experience in that regard. I have never taken part directly in a judicial review. So, I am unable to confirm that.
As part of the process for the potential release of offenders sentenced to life in prison for murder, questions regarding the harm caused the victims are asked of the offender at different stages, either by the court or by the National Parole Board. In terms of rehabilitation, it is reasonable to believe that these individuals are in the process of healing, in terms of the harm they caused to their victims and to themselves. Their criminal act had irreparable consequences for the victim, but it also had very serious consequences for the person who committed the act. The healing process affects both the victims and the offenders.
Senator Joyal: Have you had the kind of experience with victims that Ms. Pate described earlier?
Mr. Altimas: I cannot say that I have had the same experience.
Senator Joyal: The question I would have asked would be this.
[English]
Ms. Pate, perhaps you will be able to answer this question: What are the conditions for a victim to heal? What are the elements that must be present for a victim to heal?
I ask you that question because while it is not proper to tell our personal histories, I dealt with three families where a horrendous crime was committed. I am trying to figure out what the elements were that brought the person to a conclusion, at a point in time, to move on instead of remaining caught in the trauma of the crime. On the basis of your professional experience, what are those essential elements that would bring the process along?
Ms. Pate: I would not presume to speak for all victims ever, or even for any one. I think everyone's needs are different. Some general observations, though, are that there have been some excellent examples in other parts of the world. We have some good examples of victim services and supports here as well.
In the U.K., for instance, for a while there was a model where they recruited people to come in. After a crime, particularly a serious crime, had been committed, they had a group of professionals come in to provide professional support, counselling and all of the things that people deal with after any crime. Break and entry into a home can have devastating impacts for a long time for many people. Also, after the police had been through, they would go in and clean up the house or the place where the crime took place. They focused on residential — break and entries, robberies, home invasions and more serious crimes involving violence.
One reason that model was stopped was because it was seen as too invasive. They would go in and do it without necessarily the okay of the victims, so they stopped doing it. Apparently the individuals who had the benefit of it felt it was a beneficial process, but I understand it does not continue anymore.
I do not know of many services that go in early on. In my limited experience, it would be something that would provide support early on, not something that provides it however many years later, when it is going to court. To provide an opportunity to make a statement at that point is really too little after the fact for many people. Having those kinds of supports early on is important.
Yet, we then have to shore up our social services and mental health services, which are having the life and resources sucked out of them. I will be quiet; I am sorry.
The Chair: I regret having to say this, because these are profoundly important topics, but it is seven o'clock. I thank all of you very much.
[Translation]
As always, you have been extremely helpful to us.
Senator Boisvenu, I am sorry, but the meeting is scheduled to end at 7 p.m. However, if you would like to put a question to the witnesses which they could then answer in writing, I think we would have time to do that.
Senator Boisvenu: Could I send my question to them in writing?
The Chair: No, you can ask your question now, but we will ask them to provide the answer in writing.
Senator Boisvenu: Thank you, Madam Chair.
First of all, I understand the kind of work you do. It must be as terrible as working with the victims, because these are people who are trying to get back on track and rebuild their lives. So, I commend you for what you do.
I would be grateful if you could provide some information regarding the structure of your organizations. How do they operate? Is there a head office? Are there branches? As the family member of a victim — my daughter was murdered — I am trying to get an understanding of how you go about working with these criminals and how exactly you are able to reintegrate them.
I would also like to know who is supporting you financially in your work. How do you recruit the criminals that you reintegrate? Are they people who knock on your door or do you go into the penitentiaries?
And finally, I would like to make a comment. Please do not use the word "healing" when referring to the victim of a criminal act. Please use the word "rehabilitation" instead. A criminal may heal in relation to the crime he committed, but a victim never heals. A victim readjusts or is rehabilitated — it is like losing a limb.
The Chair: Did you all note the questions?
[English]
For confirmation purposes, the clerk of the committee we will send you a copy of those questions, which are of general interest and not specific to this bill. We will appreciate receiving your answers in writing. As I said, we appreciate enormously the contribution that you have made to our work today.
Senators, we will meet in this room tomorrow morning at 10:30 to continue our study of this bill.
(The committee adjourned.)