Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 22 - Evidence for March 2, 2011
OTTAWA, Wednesday, March 2, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:18 p.m. to study Bill C-48, an Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, as well as Bill C-21, an Act to amend the Criminal Code (sentencing for fraud).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
Today we are beginning our study of Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act. We are fortunate to have as our first witness the Honourable Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada. In his remarks to us, he will also address Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), which, as honourable senators know, was just referred to this committee an hour ago, I believe.
The minister will be able to stay with us until 5:45 p.m. Therefore, I will ask him to speak on both bills and then I will open question period so that honourable senators will be able to put their questions to him on either bill. If you want to ask a question about each bill, I suggest that you ask one question on one of the bills in the first round, and then one question on the other to ensure that all honourable senators get a chance. If we have time for a second round, we may have a bit more flexibility.
That said, minister, welcome.
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much. I am pleased to once again be joined by officials from the Department of Justice: John Giokas, Counsel, Criminal Law Policy Section; Joanne Klineberg, Counsel, Criminal Law Policy Section; and Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section.
I am pleased to meet with committee members. The first bill is Bill C-48, the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. Again, I thank the chair and the committee for their offer to appear on both these bills today.
Bill C-48 seeks to amend the Criminal Code to authorize a judge to sentence convicted multiple murderers to serve separate, concurrent 25-year periods of parole ineligibility to account for the second and each subsequent victim of their crimes. More importantly, these additional 25-year periods would run consecutively to the period of parole ineligibility imposed for the first murder.
In exercising this new authority, judges will have regard to the existing criteria in the Criminal Code with which they are already familiar in the context of setting parole ineligibility periods for convicted second-degree murderers.
As introduced by the government, this bill would have required the sentencing judge to give reasons for a decision not to impose consecutive periods of parole ineligibility on a convicted multiple murderer in a particular case. This would benefit the families and loved ones of murder victims who have long complained about being left out in the dark as to why certain decisions are taken during the trial and sentencing process.
Bill C-48 was thoroughly debated and studied in the other place. There, it was seen fit to make an amendment requiring the judge to give oral or written reasons if he or she decides to order consecutive periods of parole ineligibility or not. The bill originally called for the judge to provide oral or written reasons only if he or she declined to make the order.
Although unnecessary, this amendment has been accepted by the government so as not to delay the passage of this important bill. In doing so, we are mindful of the suffering currently endured by the families and the loved ones of murder victims.
If passed, this bill will allow a judge to make a consecutive parole ineligibility period order that will spare the families and loved ones of murder victims from having to re-experience the trauma of their loss every two years once the ineligibility period for the first murder has expired.
In this vein and consistent with the government's commitment to tackle violent crime and to bring truth in sentencing, the reforms proposed in Bill C-48 would not only better reflect the loss of multiple lives, they would also bring an end to faint-hope reviews and spare families the pain of attending repeated parole eligibility hearings where they are forced to relive their losses.
I will not go into detail as I am aware that Senator Lang provided this chamber with an excellent review in his second reading speech. That being said, allow me to describe the rationale for the bill. He accurately noted that the bill is based on the straightforward proposition that taking the lives of more than one person reflects a higher degree of moral guilt and must allow for a higher penalty.
Honourable senators, this bill reflects clearly and unequivocally the high degree of ``moral guilt'' referred to by Senator Lang, for it is undeniable that murder is the most morally blameworthy crime in Canadian law. How a murder is committed is one way in which criminal law reflects the notion of moral blameworthiness.
For example, under section 231 of the Criminal Code, murder is in the first degree if it is ``planned and deliberate.'' Killing in the heat of passion, under the influence of drugs or alcohol, or in a disordered emotional state do not necessarily carry the same degree of moral blameworthiness and are classified in the second degree.
However, that is not the end of the inquiry, for the second way the Criminal Code reflects moral blameworthiness is concerned less with the murderer and more with the victim. Thus, murder will also be in the first degree if the victim is a police officer or a Correctional Service of Canada official, for example, whose dangerous jobs are essential to justice administration in Canada. A murder will also be in the first degree if the victim dies during the commission or attempted commission of other serious offences like aircraft hijacking, kidnapping or sexual assault in which the offender exploits a position of power through illegal domination of the victim.
Both first- and second-degree murder carry mandatory sentences of life imprisonment upon conviction. However, the differing degrees of moral blameworthiness lead to different periods of parole ineligibility: an automatic 25 years for first-degree murder and a presumptive 10 years for second-degree murder.
That being said, the shorter period associated with second-degree murder is only presumptive, for the Criminal Code provides two means for extending it to reflect higher degrees of moral blameworthiness. First, if a second-degree murderer has previously been convicted of a prior murder, or of an intentional killing under the Crimes Against Humanity and War Crimes Act, section 745 of the Criminal Code mandates an automatic 25-year parole ineligibility period, which is the same as for first-degree murder.
Second, under section 745.4, judges may extend the minimal 10-year ineligibility period for up to 25 years based on ``the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made'' by a jury.
In short, honourable senators, Canadian law already provides a sliding scale of parole ineligibility to account for the degree of moral guilt associated with murder.
However, the issue before us that Bill C-48 seeks to address is that, under Canadian law as it now stands, 25 years is the maximum period for which a convicted first- or second-degree murderer may be prevented from applying for parole, no matter how many lives that person may have taken.
Many Canadians are perplexed by this. They cannot understand why the law cannot account, in a concrete way, for the fact that more than one innocent life has been lost. They justifiably criticize the current 25-year maximum parole ineligibility period as a symbolic devaluation of the lives of victims that appears to give multiple murderers a ``volume discount'' for their crimes.
This bill responds to those criticisms. It is based on the proposition that killing more than one person reflects a higher degree of moral blameworthiness and ought to allow the imposition of additional periods of parole ineligibility.
In sum, the bill proposes to provide another sliding scale of moral blameworthiness in the context of multiple murders. It would do this by permitting the judge who presides over the trial of a multiple murderer — and who is, therefore, in the best position to assess that person's degree of moral blameworthiness — the authority to decide whether a more severe penalty ought to be imposed using criteria identical to those already found in the Criminal Code.
Senators, there are no surprises in this bill. The only surprise will be if we do not get this bill passed into law. It is fair, balanced and it is necessary to ensure the continued integrity and confidence in the Canadian judicial system.
Honourable senators, I would like to move to discuss Bill C-21.
As you know, fraud comes in all shapes and sizes, and Canadians are vulnerable in many circumstances. For instance, seven people were recently charged in what is called a ``grandchildren'' scam. The fraudsters make phone calls to elderly Canadians and pass themselves off as being a grandchild in need of money to get out of jail. These scammers have defrauded elderly men and women out of an estimated $3 million since last fall. RCMP statistics indicate that this type of scam is common across Canada.
It is harder and harder to tell legitimate businesses apart from those involved in scams. The result is that Canadians are defrauded out of millions of dollars. Canadians have diminished confidence in capital markets, in Canadian companies, and in the regulatory authorities tasked with ensuring that transactions are open, transparent and fair, and have increasingly come not to trust each other more generally. The offence of fraud is the most important offence in our arsenal against white-collar crime because of its general nature and flexible application.
Fraud consists of two elements: deception or dishonesty coupled with an actual loss of money or other items of economic value, or merely the risk of such loss.
This single offence captures mass marketing fraud, real estate or title fraud, home renovation fraud, health care fraud and other kinds of insurance fraud. In addition, it captures Ponzi schemes and tax evasion and securities-related frauds such as accounting frauds that overstate the value of securities.
This bill contains measures designed to strengthen sentencing for people who devise and carry out this type of fraud. It sends the message that these crimes have enormous and devastating impacts on victims.
The significant harms suffered as a result of the fraud must be taken into consideration by judges when imposing sentences.
The current maximum penalty for fraud with a value over $5,000 is 14 years' imprisonment. Bill C-21 would introduce a mandatory term of imprisonment of two years for frauds with a value in excess of $1 million. Any fraud or series of frauds that result in a loss of more than $1 million must be the result of a complex and well-organized scheme. These schemes are quite likely supported by additional crimes, like forgery, and must therefore be considered extremely serious.
Many frauds are much larger than this. It is essential to understand that two years is the floor for a term of imprisonment and not the ceiling. The actual sentence imposed for a fraud will reflect all the blameworthy elements of it, and may be substantially higher than the two-year sentence.
A fraud of much higher value, like the frauds committed by Earl Jones and Vincent Lacroix, demand a much higher term of incarceration. The courts recognized that in sentencing these individuals.
Bill C-21 adds new factors that reflect conduct or circumstances that may be relevant: If the duration, complexity, magnitude or degree of planning was significant; if the offence had a significant impact on the victim given their personal circumstances; if the offender failed to comply with applicable regulatory or licensing regimes; or if the offender concealed or destroyed relevant records.
The introduction of a prohibition order can form part of a sentence. Bill C-21 will enable a court to order that the offender be prohibited from having control or authority over another person's money, real property, or valuable securities for up to any length of time the court considers appropriate. Breaching this prohibition order will, in and of itself, be an offence.
It is important to note that the $1-million trigger, which applies to the mandatory minimum term of imprisonment of two years, does not apply to the prohibition order. It can be a part of the sentence for a fraud of any value.
This proposed prohibition order is discretionary. It would only be made after the court has heard from both the prosecutor and the defence about the impact that an order would have on an offender's ability to make a living, as well as other relevant considerations.
This measure will help in preventing future crime, as convicted fraudsters can be prevented from deceiving others into handing over their money again.
Other aspects of the bill focus on improving the responsiveness of the justice system to the needs of victims. These provisions are also not dependent on the $1-million trigger. They will apply following a conviction for fraud of any amount. The bill contains provisions that encourage the use of restitution orders in fraud cases.
The Criminal Code currently enables judges to order offenders to pay restitution to victims in appropriate circumstances. Restitution may be ordered to help cover monetary losses incurred by victims as a result of loss of property caused by a crime, among other things.
The amount of restitution must be readily ascertainable and not in dispute. It cannot be ordered for pain and suffering or other damages that can only be assessed in the civil courts.
Restitution may be ordered as a stand-alone order, condition of probation, or conditional sentence.
In deciding to make a restitution order, judges must take into consideration the state of the offender. Normally, the consideration of restitution is discretionary. The bill would require that judges consider restitution in all cases in which an offender is found guilty of fraud.
A judge would have to inquire of the prosecutor whether reasonable steps have been taken to provide victims with an opportunity to indicate whether they are seeking restitution. This would allow for the victim to establish their monetary losses and would give them a chance to indicate that they would like to seek restitution from the offender.
Where the victim seeks a restitution order and a decision is made not to make the order, the judge would have to explain why it was not made. This ensures that restitution is not inadvertently overlooked at the time of sentencing and that wherever it is not ordered, victims can understand the reason. I think that is only reasonable.
Our proposals also include the addition of an optional form in the Criminal Code to assist victims in setting out their losses. The losses must be readily ascertainable and victims would have to provide documentation to support their claims.
Courts would continue to accept information about restitution in other formats. The form would not be mandatory, but would be available to facilitate the process for victims, prosecutors and judges.
The bill also recognizes that a fraud can impact not only individuals but also groups and communities. The courts have, in previous cases, considered impact statements made on behalf of a community. The bill would explicitly allow courts — when imposing a sentence on an offender found guilty of fraud — to consider a statement made on a community's behalf that describes the harm done to, or losses suffered by, the community.
A community impact statement would allow a community to express publicly, and to the offender directly, the loss or harm that has been suffered. This would allow the community to begin a rebuilding and healing process.
These are the major elements of the bill. I look forward to any comments or questions that the committee may have.
The Chair: Thank you, minister. Colleagues, please put questions to the minister on both or either of these bills. For the first round, please restrain yourselves to two questions, either one on either bill or two on a single bill.
The officials will remain after the minister leaves in order to discuss Bill C-48. We will have officials again tomorrow to discuss Bill C-21.
With that, we will begin with Senator Wallace.
Senator Wallace: Thank you, Minister Nicholson.
My first question relates to Bill C-48. I realize that, with both of these going at the same time, trying to keep the thoughts separate is a bit of a challenge.
The objective of Bill C-48 is to better protect Canadians and to enhance the safety and security of communities. In addition, the objective is to provide a greater sense of justice in sentencing. Section 718 of the Criminal Code establishes the principles of sentencing. Two of those principles are that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Bill C-48 zeros in on those aspects of the principles of sentencing.
Can you provide us with any comments in that regard?
Mr. Nicholson: Thank you, Senator Wallace, for your support of our changes and reforms in the criminal justice area. I know that you have taken an interest for quite some time in these.
Part of what we are doing with respect to Bill C-48 is reaching out to victims. As I said in the house when we got rid of the faint-hope clause, we want to reduce the victimization.
Again, if your family has been a victim of one of these multiple murderers, after 25 years for you to start worrying on a regular basis whether that individual will be released again — just as in the faint-hope clause after 15 years — these individuals tell me that they are victimized again and again. That is very unfortunate.
As well, the discounting, in a sense, of the lives that some of these individuals have taken because there are no consequences after the individual is given 25 years of parole ineligibility, I have been told by victims that this hurts them again and revictimizes them. There has been considerable criticism over the years with respect to the way the law currently stands and this is an opportunity to correct this. I believe this will be well received.
Senator Wallace: In the same sense, have the sentence represent the gravity of the offence.
Mr. Nicholson: This is what the Criminal Code, in part, is meant to do, to reflect that. With the passage of this bill, the Criminal Code will reflect the seriousness of those individuals who have committed murder and victimized people.
Senator Wallace: As you point out, one of the purposes of Bill C-21 is to improve the responsiveness of the justice system to the needs of victims of fraud. You mentioned restitution and the community impact statements.
Would you, perhaps, have more to say about the community impact statements and just how that works? How do you determine what is a community, who would be entitled to make those comments? Most of us are familiar with victim impact statements, but how would the community impact statements work?
Mr. Nicholson: That would be within the purview of the court that is hearing that. My view of these, and my experience in looking at these, is that those communities are very identifiable. Generally, many of these groups have counsel; they have lawyers that they have contacted to help represent them. This is a recognition; in fact, it is already provided for in the Criminal Code. This is a reaffirmation in terms and some clarification on that.
Many times, the impact that some of these scam artists have goes beyond just the individual they have stolen money from. If you stole money from a church, for instance, there is a wide range of people who have been hurt by this. There are family groups that have been disadvantaged, members of families who are related to people. There is a wide range, and this is a recognition that the actions of these individuals have wide-ranging negative impacts.
We have changed the provisions and have added new criteria with respect to victim impacts. I am pleased that one of the aggravating factors is the impact on the individual, as well as the group. Stealing $50,000 that could be someone's life savings can have a huge impact. We want to make sure that is taken into consideration. It is wide ranging but it is what we should have.
Senator Wallace: In sentencing, we certainly hear the circumstances of the offender. It is interesting that it brings balance, that the interests of the victims are before the court as well, which is obviously important.
Mr. Nicholson: That is important to have, senator.
Senator Baker: Minister, on a point of clarification, you said in your brief address at the beginning concerning Bill C-48 that the House of Commons had made what you believed to be an unnecessary amendment to the bill. Could you clarify that for us?
Mr. Nicholson: In Bill C-48, we require the judge to give reasons why he or she does not impose the consecutive ineligibility. The amendment was that if the judge does impose the sentence, that he or she give reasons for it. They do that anyway; that is part of the process that we have. Any sentence that you get, the judge explains why you are getting it, so it was unnecessary.
However, as I indicated in my opening remarks, we want the bill to proceed so we are prepared to accept even an unnecessary amendment.
Senator Baker: You are saying that when a judge makes a major decision like that, he or she is bound to give reasons to make it suitable for appellate review.
Mr. Nicholson: You hit upon it. In terms of fairness for the individual and in terms of any possible appeal, that is part of the process.
Senator Baker: Now that that has been cleared up, let me get to the substance of your bill, the gravamen of your intent here. It is clause 5 and the 745.51(1). It allows, at the judge's discretion, for the imposition of consecutive terms of ineligibility for parole. As I then read subclause (3), it will only apply to murders that have been committed after the coming into force of the act. Is that correct?
Mr. Nicholson: That is correct.
Senator Baker: If the first murder took place prior to the passage of this legislation and the second took place after the passage of the legislation, it would not apply, is that correct?
Mr. Nicholson: Exactly.
Senator Baker: It would not apply to any of the persons who subject victims' families to victimization every two years by being subjected to these hearings. In other words, it would not affect the Clifford Olson hearings or the Bernardo or the Pickton or the Williams hearings. It would not affect any of these, correct?
Mr. Nicholson: Exactly.
Senator Baker: My question to you is this. Senator Boisvenu has spoken about this many times. To correct the problem, the wording of subsection 745.6(1) of the Criminal Code, which was recently changed, gave a procedure whereby someone who wished to have a parole review would submit the reasons in writing to a judge, and the judge would make a determination before a hearing took place whether there was a reasonable prospect that it would succeed.
Has anyone given consideration to having that kind of screening process implemented in the code, in relation to all of those hearings that we will have in the future for all of the multiple murderers who are presently in prison?
Mr. Nicholson: That is not addressed in this, senator. I always appreciate any suggestions to make the Criminal Code more effective and more sensitive to victims, but the bill is forward looking in the sense that it will apply to all murders taking place after the coming into force of this particular bill.
You know the challenges that we would have on making retroactive changes to people — the constitutional questions that would be raised trying to make any changes to people who have already been sentenced.
In the bill we have before us — the individual who has committed more than one murder and is now no longer eligible for parole after 25 years, but is eligible for parole after 50 or even 75 years — it would reduce that victimization so the question would not arise then, for the most part, whether the individuals who have to apply to make these hearings, whether they are being victimized again.
The suggestion I think you are making would require changes to the legislation and, as you know, I have my hands full just getting the legislation passed that I have before Parliament right now.
Senator Baker: I imagine, minister, that you get some criticism from some circles. You have implemented a regime whereby, although the judge has discretion, the judge must decide between 25, 50, 75; there is no in-between. A judge cannot say 35 years to 40 years. Am I correct that you have received some representation about that?
Mr. Nicholson: I know there was representation, but under the existing law now, if you commit a second-degree murder a second time, you are looking at 25 years. It is already built in. This is consistent with provisions already in the Criminal Code.
Senator Baker: Yes, but that only applies to a murder that has been committed, for which you have been convicted of in the past, and then do you one in the future.
Mr. Nicholson: On the second murder, even if it were a second-degree murder, the parole ineligibility would be 25 years, starting at that point.
No matter what we do, senator, there are always those who do not agree, but I can tell you that I have received very favourable reviews. As you know, your colleague, Albina Guarnieri, has championed this particular cause for a number of years. I know she is watching us with great interest and is supportive of our moving ahead on this.
[Translation]
Senator Carignan: My question concerns Bill C-48. I have a question of clarification with regard to subsection 745.51, which states: ``At the time of the sentencing . . . of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender . . .'':
[English]
Who has already been convicted of one or more other murders.
[Translation]
Just to be clear, does that apply to multiple murders, those committed at the same time or with a conviction at the same time? When you read that clause, you might think that it applies to an offender who was found guilty once for murder, and who then faces another trial and is convicted a second time. My understanding is that the section is intended to cover cases where an offender is convicted of multiple murders at the same time. I want to be sure that you clarify the minister's intention for the benefit of those who will have to apply that clause.
[English]
Mr. Nicholson: Your characterization is correct. It applies to consecutive convictions for murder, and will apply as soon as this bill is passed into law.
John Giokas, Counsel, Criminal Law Policy Section, Department of Justice Canada: It is designed to apply to multiple murders that occur in the same criminal incident and to multiple murders where murders are committed in different incidents. When a multiple murder is committed in the same incident, the convictions are not entered at the same time. Someone is convicted of one murder and then the next murder and the next, and we recently saw this in the Kellestine trial in London, Ontario, where a number of people were charged, but they were not all convicted of all of the murders. A murder conviction is entered for each victim as against each accused so, logically, one conviction follows the other, even though the murders may have occurred in the same criminal incident.
The Chair: You have just outlined what, presumably, normally happens, but just for checking purposes, is there a rule that says someone who has committed more than one murder either at the same time or, as was recently the case with Russell Williams, committed murders separately, but the police process and the trial involves one process? Is it always the case that two charges of murder will be laid, even if they are tried at the same time? How does that work? Senator Carignan has raised a question that perturbed me as well. It sounded as if you would miss, possibly, people that we figured were among the targets of this bill.
Mr. Giokas: No, the charges are laid for each individual murder, no matter whether they occur in the same criminal transaction or in different transactions, and the convictions are entered for each individual murder.
The Chair: Thank you.
[Translation]
Senator Carignan: My question deals with Bill C-21, which I have the honour of sponsoring in the Senate and with which I am much more familiar. My question is a follow-up to a question that I was asked in the chamber by my colleague, Senator Nolin, and to comments by Senator Poulin, who dealt with the bill this afternoon.
How many instances are there of people who committed fraud in excess of one million dollars and were given sentences of under two years? In how many cases did that occur? I would add that there appear to be few of them. So, given the small number of cases, the bill will not have a very significant impact. Obviously, that is not an opinion that I share, but it has been expressed. I would like to hear your comments on an opinion like that.
[English]
Mr. Nicholson: It does happen. Senator, in your own province a few years ago, the Coffin case involved $1.5 million from the sponsorship scandal. In the end, I believe the individual got 18 months. Your colleagues are probably familiar with that one. It does happen, and there have been a number of cases across the country where the individual got two years less a day.
In 2004, amendments made to this section increased the maximum sentence from 10 years to 14 years, so there has been a gradual increase and recognition of how devastating this type of crime is. The two years is a base, and taking into consideration the additional aggravating factors that we have now added, they can build from that.
However, tell your colleagues to look at the Coffin case from a couple of years ago in the sponsorship scandal. I believe it was $1.5 million. Ultimately, the Court of Appeal reduced the sentence to 18 months. I am not the one adjudicating these, but we are sending out a clear message that if you get involved with this kind of fraud, you are starting at two years.
Senator Runciman: I have a couple of quick questions on the first bill. If a young offender receives an adult sentence, does this bill affect a young offender in that situation?
Mr. Nicholson: If the offender was sentenced as an adult, it would.
Senator Runciman: On Bill C-21, regarding the two-year minimum, could you talk about how you arrived at that two years? I am wondering whether that is adequate. With a two-year sentence, when does a person normally walk away on parole? It is eight months; is it not?
Mr. Nicholson: Each case has to be decided on its own merits, and the job we have is to provide guidelines.
I indicated in the answer to Senator Carignan that, as recently as 2004, the maximum penalty was increased from 10 years to 14 years. Therefore, the individual who gets involved with this kind of activity is looking at between 2 years and 14 years. That is consistent with jurisprudence in the country.
My point is that such a number is a base. How do you come up with these bases in relation to the seriousness of the crime? I think two years is a good starting point. As you know, I do not have the only part of this. My colleague, the Minister of Public Safety, has moved forward with changing parole eligibility, which is part of your question as well. I have supported those initiatives.
There are changes in separate legislation with respect to parole ineligibility, but this bill deals specifically with the sentencing. Two years is the floor; that is where you begin.
[Translation]
Senator Chaput: I would like to ask for some clarification. I believe that you have already answered this, Mr. Minister, but could you clarify the issue for me once again?
If I understand correctly, the provisions in Bill C-48 also apply in cases where, for example, a man would murder his children and spouse one after the other. Bill C-48 would apply in cases like that, would it not, where murders are committed consecutively?
[English]
Mr. Nicholson: Yes, it would apply to all murders.
[Translation]
Senator Chaput: I may be wrong, but I thought I had read that the Canadian Bar Association seemed to think otherwise. Apparently, they indicated that the provisions of Bill C-48 only applied to offenders who were previously convicted of murder. Have you been made aware of the view from the Canadian Bar Association?
The Chair: I believe it was in a submission to the House of Commons committee. It was definitely the Canadian Bar Association.
[English]
Mr. Nicholson: Yes, I think they testified before the Canadian Bar Association.
Again, we do not want to be in the business of discounting additional lives. You are quite correct in that the lives of the murder victims might be related to each other; they might be siblings or other family members.
The bill makes the point that this is the most serious offence within the Criminal Code. There are serious consequences and one of them is that you will be eligible now for consecutive parole ineligibility. I think that is appropriate for the seriousness of the crimes we are dealing with.
[Translation]
Senator Boisvenu: First of all, Mr. Minister, I want to focus primarily on Bill C-48, consecutive sentences for murder, as this request was put together five years ago by Quebec's Association of Families of Persons Assassinated or Disappeared. We met, in fact, in your office to make you aware of our requests at the time. When the same person commits several murders, concurrent sentences do not, in my view, serve justice, nor do they provide justice to victims. I would even go farther, and say that I think concurrent sentences result in second-rate justice.
I will give you the example of a woman who is not only murdered but also raped, abused and confined. Because the criminal will be given a life sentence, all of the other crimes will be dropped; neither the rape nor the unlawful confinement will be taken into account. Then, criminals like that are eligible for release after serving 15 years. Fortunately, we are working to eliminate that clause. The fact remains, however, that the idea of concurrent sentences is second-rate justice, in my view, especially when horrific crimes are committed.
I know that Mr. Murphy, I believe, asked for an amendment in the House of Commons, which would leave judges some discretion in the case of a second murder, to establish the possibility of parole after 25 years, instead of applying the 25-25.
In your view, Mr. Minister, how important is it to maintain the bill in its entirety without diluting its fundamental position on consecutive sentences?
[English]
Mr. Nicholson: I believe that possible amendment goes to the very heart of what this bill is trying to correct, namely, that you should not have a discount in this country. You should not have a lesser sentence because you have been in the business of killing other people. The idea that somehow you should receive a lesser sentence because this is your second, third or fourth murder victim goes against the concept of moral blameworthiness I talked about in my opening remarks. That is on the side of the individual who has done that.
In terms of the victims, it is intolerable and unacceptable that there be no consequences whatsoever for the individual convicted of second, third or fourth murders. We do not want to get back into this business and say, ``Well, it was only a second murder. Therefore, your additional parole ineligibility will only be a few or 10 years additional.''
I think that goes against the very heart or rationale of this bill and should be rejected.
Senator Joyal: Clause 4 of Bill C-21 creates proposed subsection 380.2(1). I am referencing the first two lines: ``When an offender is convicted, or is discharged. . . .''
It is surprising that the treatment of both offenders is the same, although one is discharged. I could understand that, if an offender is convicted, we would want to prevent that person from exercising activities that would put that person in contact with money. However, if the person is discharged, then that person has certainly not had the same kind of malevolent situation as the case of the first one who is convicted.
Why is there no difference in treatment between the two in relation to barring that person from even exercising volunteer activities?
Mr. Nicholson: If you read on farther in the section, the individual is guilty of a certain activity and the judge may impose a number of conditions in addition to any other that may be imposed, et cetera. This has judicial discretion. It is up to each individual case, at the discretion of the judge. I think that is the way it should be.
If there is less moral blameworthiness, that would be taken into consideration. If the individual is discharged on conditions, the judge would take that into account.
Senator Joyal: Yet I do not see the follow-up of the sentencing on that. The person who is discharged is still submitted to the same kind of responsibility as the one who has been convicted.
Mr. Nicholson: Perhaps I will ask Ms. Kane to point out that section of the Criminal Code.
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: The terminology that we use here is the same as we use consistently throughout the Criminal Code in respect of the sentencing provisions. For example, section 161, which is a different kind of order, prohibition order, it is the same terms: ``Where an offender is convicted, or is discharged. . .'' on conditions and so on.
As the minister noted, the new prohibition order in Bill C-21 is discretionary. The court will only order it where it is appropriate in the circumstances. They might well see fit to order that kind of prohibition order, although the person is not sentenced to any jail or to any other term. However, it is appropriate to prohibit them from being engaged in certain activity that puts them in contact with money and people. It eliminates the temptation that they might have to engage in that activity again and prevents further victimization of others.
Senator Joyal: Let us say a person is discharged and is part of a volunteer group in a community. The person cashes the tickets for whatever charitable organization. By this, that person could be barred from exercising that volunteer kind of responsibility.
Mr. Nicholson: But it is still within the discretion of the judge, if the judge thinks it is appropriate. We want to get at those individuals who, after they have been in one scheme, get into something else.
Senator Joyal: No, I agree with that.
Mr. Nicholson: You want the judge to have that ability, but the section that you refer to says on a couple of occasions the judge ``may'' or the court ``may.'' Again, that is discretionary. Each individual sentence must be configured with respect to the facts before the court.
Senator Joyal: My other question is in relation to the same clause 4, proposed subsection 380.3(2), whereby the judge would inquire from the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution.
Is it not unprecedented that the judge would inquire from the prosecutor? How would the prosecutor know that?
Ms. Kane: We use the same approach with respect to victim impact statements. The judge inquires, usually of the prosecutor, whether the victim has been made aware of the opportunity to bring a victim impact statement.
In this new provision with respect to restitution, obviously the prosecutor in most large-scale frauds and in others will have met with the victim ahead of time and will know the facts of the case. That will be their opportunity to remind them that they may want to bring an application for restitution.
We are proposing a new form in the Criminal Code that makes it simple for them to set out what their losses are, so that the sentencing process is not turned into a protracted inquiry in terms of what the damages are. We do not think this will be at all onerous for prosecutors to be able to inform the court what steps have been taken to advise the victims. Basically, it is a safeguard so that the court will not proceed to sentencing without ensuring that victims have had that opportunity.
Mr. Nicholson: I even like the idea of having the form. It is not necessary to use that form, but we want to make the system as user friendly as possible. That is part of that.
Senator Joyal: My preoccupation is more as the Quebec Bar Association stated in its letter. You might take notice of it; it was June 2010, when the bill was debated in the House of Commons. They were concerned about the role that the prosecutor and the judge would now have in the context of trying to evaluate circumstances in which they have no direct relationship. Essentially, that is the concern they have and I think that is fair.
Mr. Nicholson: I think maybe you are reading too much into that, senator.
As Ms. Kane talked about victim impact statements, in terms of the prosecution of a major fraud case, they would be in touch and their officials would be in touch with these individuals. We want to ensure that they have that opportunity.
I am sure that members of the bar and others have heard from victims who say that we want the system to be as user friendly as possible. Those are the steps we are taking.
There is an evolution in terms of everyone's responsibility within the criminal justice system. Over our lifetime, we have seen what has happened with respect to victim impact statements and the changes in that. It seems to me that this is an appropriate development in that. It underscores the seriousness of the type of fraud we are dealing with.
Senator Joyal: The bar was more concerned about the professional independence of the prosecutor; that is essentially their argument.
Mr. Nicholson: I cannot see where, somehow, this would compromise the independence of a Crown attorney if these individuals, the victims in a case where a conviction has been entered, are being asked whether they have had the opportunity to make their claim for restitution. That is something that only reasonably and logically follows. I think that is a reasonable proposal. We have even included a form with this to make it as user friendly as possible.
Senator Frum: I am not a regular member of this committee; I am filling in for the elegant Senator Lang to whom you referred earlier.
Mr. Nicholson: Will you tell him that I referred to him in my opening comments?
Senator Frum: I will indeed.
Because I am not as familiar with this bill as others, I do want to go over the territory that senators Chaput and Carignan asked you about. In proposed subsection 745.51(1), it seems there is potential for some ambiguity where it states:
At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders. . . .
I think what senators Chaput, Carignan and our chair were getting at, is there not some potential for ambiguity in this idea of ``has already been convicted.''
Is it not possible, to use the example of Senator Chaput, that if it was a murder of two children that took place at one time, a defence lawyer could argue there is no prior record of murder?
Mr. Nicholson: I guess it goes to the procedure. As Mr. Giokas indicated, no matter what the time frame of any of these offences, there would be separate pleas and separate convictions. Even in your case of siblings being murdered, there would be consecutive convictions.
The reason for that is, among other things, the ability of the individual who might want to appeal one or more of the sentences that they have received. It is important that you do not convict someone in a blanket for a number of convictions; you want those individually dealt with. That is the procedure we have now.
Having had a look at it, this will work in terms of the procedures that take place now. Whether multiple murders are committed at the same time or if they are spaced out, that section will kick in.
Senator Frum: Okay, because if the sentencing was happening at one time, the ``has already been convicted'' would apply to the sentence that they received five minutes ago on murder A, and then —
Mr. Nicholson: On murder two, even if it is five minutes later, the provision of this bill would kick in with respect to the parole ineligibility. It would be completely separate even though, in terms of time, they took place five minutes apart, to use your example.
The Chair: Before we open to a second round, minister, I have a couple of questions.
Mr. Nicholson: On Bill C-48?
The Chair: Yes, about the question that, under clause 4, the judge must put to the jury. There is some surrounding verbiage, but the question that the judge must put is:
Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder?
With respect, I think that you might need a reasonable amount of post-secondary education to understand that question. Is it your policy to do test drives of questions like this to ensure that members of a jury will understand what the judge is required to say to them?
Mr. Nicholson: As you know, senator, it must be somewhat technical; you are hoping to avoid appeals, among other things. I have confidence that the explanations and the directions that are given and have been given to juries work and will continue to work. Perhaps my colleagues have further comments on that.
The Chair: We are getting to keep them after you leave us. Maybe they will have a comment.
I am particularly perturbed about clarity there because, as I understand the procedure, the jury will be asked to make this recommendation about simultaneous or consecutive periods of —
Mr. Nicholson: They are not required to make a recommendation, but they may.
The Chair: No, but they will be asked whether they wish to make this recommendation.
Mr. Nicholson: Exactly.
The Chair: That is without the benefit of any of the submissions that defence or the Crown may make to the judge on this matter. The judge may disagree with the jury members should they make a recommendation, given that the judge will have more information than the jury has when they make a recommendation, if they do decide to make a recommendation. That, over time, will not bolster confidence in the judicial system.
Do you have any views on that?
Mr. Nicholson: The judge may disagree with the recommendation. However, I believe it is appropriate to ask the jury if they have any recommendations. This is what we are providing for. The judge has the final say on that and can deal with it after the fact. Getting a recommendation from the individuals who have heard or been through this process seems reasonable.
The Chair: I am not sure that is an answer. However, I have a lineup for the second round.
In deference to my colleagues, we will turn now to Senators Wallace, Joyal, Boisvenu and Baker.
Senator Wallace: Minister, in Bill C-48, it is discretionary whether the period that would be without eligibility for parole for each of the murderers would be served consecutively rather than concurrently. Why would it not be automatic considering the seriousness of these crimes?
Mr. Nicholson: It covers the wide degree and possibility of murders under certain circumstances. It is serious to be sentenced for first-degree murder with life imprisonment and no parole eligibility for 25 years. To have this particular section kick in, it is appropriate for the judge to have a look at that and see if it is appropriate under the circumstances. Our provisions ask for reasons why he or she does not believe it is. For the first time, the judge is given the opportunity to see that subsequent or multiple murderers are not discounted or ignored in the criminal justice system.
Senator Wallace: Would having it discretionary rather than absolute and automatic be more consistent with other provisions of the code?
Mr. Nicholson: I think so. It is said that there may be cases where a mandatory consecutive rule of eligibility would not be appropriate. The courts are in the best position to decide that.
Senator Joyal: With regard to Bill C-21, I have a question that was raised by Senator Wallace. In subclause 380.4(1), referencing communities, what is the definition or meaning of that term?
The subclause mentions that the court may consider a statement made by a person on a community's behalf, describing the harm done to or losses suffered by the community arising from the commission of the offence.
If instead of the word ``community,'' it would be ``the group of persons who have been defrauded,'' then we would understand that those are the victims. However, the term ``community'' here may mean not only the victims but all the persons around the victims who have felt the impact of the crime.
It is more the group of victims that you want to deal with than a community at large. The word ``community'' does not seem to be the appropriate word if we want to get the position from those who have been the victims in relation to the crime.
Mr. Nicholson: I think ``community'' is an appropriate. I could challenge you and say, ``Who, exactly, are the victims?'' Is it determined by the person feeling victimized? It could be an old age home, for instance. Consider the impact that might have if someone defrauded them. I mentioned a church community that has the parish funds stolen or defrauded. Having someone speak on behalf of some larger group is appropriate. In fact, it is part of the aggravating factors. That is already to be considered when sentencing an individual.
It is already contemplated within the Criminal Code. Why not? We want to reach out to as many victims — and as much as possible — to recognize their loss. I am not sure why it would be appropriate to restrict or narrow that definition. I want as wide a definition as possible, quite frankly.
Senator Joyal: The persons who are the victims are those who have been defrauded.
Mr. Nicholson: It may be that you could be part of a group; therefore, it is not exactly coming out of our pocket. I will give you an example. You are part of a group that has been disadvantaged and hurt and devastated by this; however, the money may not exactly have come out of your pocket. It may be money that has been stolen from a group of which you are a member.
Senator Joyal: Yes, but the group has some representative. A church has the church warden or the church chaplain.
Mr. Nicholson: Exactly. That may be the designated person to make the impact statement.
Senator Joyal: I can understand that because they speak on behalf of the group. However, I have the impression that ``community'' is such a large concept that we are covering much more than what the bill targets. The bill is targeted to those who have defrauded.
Mr. Nicholson: When we talked to victims, I have heard that it is not just the person who has had money taken out of their bank accounts, for instance. It could be the siblings or a family group. It could be something larger. You could argue and say, ``It was your mother from whom the money was stolen; therefore, how does that make you a victim if you are her child?'' I do not want to say that you have to prove that you have a direct connection and interest. You are part of a community or part of a group that has been hurt. The benefit should always go to including victims as opposed to trying to isolate them.
Senator Joyal: That is two concepts. I am not the only one having that kind of preoccupation. The Barreau du Québec, in its letter to you, raised that point. They felt that the term was too vague to be precise. In the Criminal Code, it is important to understand the meaning of what is being targeted by such an expression.
The Chair: Senator Joyal, would you agree to let Senator Watt have a supplementary question?
Senator Joyal: Of course.
Senator Watt: Minister, in regard to the fact that you described it as a community, does the word ``community'' also apply to executives of the corporate companies if there is a fraud involved?
Mr. Nicholson: I need a bit more clarification of what you are asking, Senator Watt.
Senator Watt: I am referring to the board of directors of any existing companies, like airline companies or oil companies. Could ``companies'' be considered ``community?''
Mr. Nicholson: I would say not, senator. This is why we give discretion to the courts to determine this on the specific cases before them. You might have a small company. For instance, the shareholders of companies have been defrauded.
Senator Watt: That is the point that I am making.
Mr. Nicholson: The shareholders may belong to a family company or a small company. You can say that the shareholders were defrauded.
Senator Watt: It may be a collectively owned company.
Mr. Nicholson: That is right. That is why it is self-defeating if we try to too narrowly define the term ``community.'' I am pleased to let the courts apply that.
Senator Watt: If I understood you correctly, it could apply.
Mr. Nicholson: You said someone on a ``board of directors.'' I would have to see a fact situation to see where it applies. When you look at this and study the other sections of the Criminal Code that describe situations similar to this as an aggravating factor, I think you will see this is a reasonable term to use.
As Senator Joyal said, there are people who do not agree. However, we want to make it as inclusive as possible when we are talking about people who become the victims of white-collar crime.
Senator Joyal: I want the minister to quote the bar letter. There is certainly a misunderstanding or a misreading from the bar when I listened to your answer. The bar is stating:
[Translation]
The Bar believes that the term ``community'' can lead to confusion. We must ensure that only the group of persons that has suffered losses can make a statement like that. Use of the term ``community'' runs the risk of unduly increasing the size of the group.
[English]
Their argument is that they want to directly target those who have been defrauded and not in such a wide context that, finally, you can claim a whole neighbourhood has been affected. Who is speaking on behalf of the neighbourhood, the city councillor or the MP? The imprecision of the term ``collectivity'' raises this question that the bar has identified.
Mr. Nicholson: I appreciate that, but the courts are already taking into account community impact statements; that is already a part of the Criminal Code. The answer I would give is that it is already there.
We would always want to err on the side of getting in and hearing from the victims as opposed to excluding them. Therefore, in your case, a club, group, church or senior citizens' home could be described as a community. It is already in the Criminal Code. Courts are already dealing with it and I am confident they will continue to be able to do so within the context of this particular bill.
[Translation]
Senator Boisvenu: I want to congratulate you on Bill C-21, Minister, because you know that there are not very many programs to compensate victims of crime in Canada. As assistance for victims is a provincial responsibility, there are very few measures in the Criminal Code where, following a trial, a criminal is called upon to compensate his victims.
I encourage you, when drafting legislation and amendments, to keep the notion of compensation in mind at all times. There are virtually no measures to compensate victims. That was clear in the case of Vincent Lacroix and Earl Jones, as it is in the case of murder and assault. In Canada, our victims are not compensated. I want to congratulate you for having included a section on compensation for victims in the bill.
I want to go back to the other bill. I am not reading it as a lawyer, I am not a lawyer, but an average citizen, senator and victims' rights advocate. Does paragraph 745.21(1) not deserve to be made clearer? Could it not have been drafted so that an average citizen could understand its scope immediately? It says: ``Where a jury finds an accused guilty of murder. . ., which is in the plural in French, . . .the judge presiding at the trial. . .'' et cetera. That sentence seems somewhat ambiguous.
In Quebec, in all of the trials that I have followed for the past five years, where two or three people were killed, the judge found the accused guilty of two or three murders. The judge did not hand down consecutive sentences, they were concurrent sentences.
As an average citizen, I am not sure that if I read that, the judge will be able to use the clause as intended to give the person two or three consecutive sentences. Would it not have been possible to write: ``Where a jury finds an accused guilty of more than one murder. . ., the judge presiding at the trial shall. . .'' et cetera. That would be much more clear.
In the other wording, you say that the accused was found guilty of murder, not more than one. The accused is being convicted of more than one murder, so the wording should reflect that, in my view.
I read that and I look at real situations where someone murders two or three people. I am thinking about the person who murdered his three daughters in Cornwall, he was charged with three murders concurrently, not consecutively. As I look at this, I am not sure this person would not get away with it.
[English]
Mr. Nicholson: The individual would be convicted of individual murders no matter the number. I think it is important that all the aspects of proposed subsection 745.21 be spoken to in terms of the jury. Not making it clear and complete will be grounds for appeal later on.
That said, there is nothing stopping a jury from getting further explanations, saying, ``What do you mean by a consecutive murder?'' You have indicated to the jury and had it further explained to them, but it will be part of the record that all elements of this recommendation have been contained. Therefore, it is very important that we get all that wording out than it is to say, ``Ensure you ask the jury the appropriate questions and you figure it out on each individual case.''
I think the wording is critical to ensure it is complete. After that, there is nothing stopping a jury from asking, ``What do you mean by 'a recommendation with respect to parole ineligibility'? What do you mean by that?'' That can be within the context of the jury's recommendations and the discussions within the court, but it is important to have it very clear and complete.
[Translation]
Senator Boisvenu: I have finished.
Senator Carignan: I have a supplementary question on exactly the same subject. I am happy that senator Boisvenu has confirmed that he has seen convictions for multiple murders where the sentences handed down were concurrent.
You appear to disagree, Mr. Giokas. Under proposed clause 745.51 of the Criminal Code, if the conviction is simultaneous, in other words the accused is convicted of charge number 1, for murder, of charge number 2, for murder, and of charge number 3, for murder, I am afraid someone will argue that this does not apply. Can you satisfy me that this is the case, if there is a simultaneous conviction, that the intent is to cover those situations as well?
[English]
Mr. Nicholson: You cannot have simultaneous convictions for murder, senator. The individual has to be convicted individually. The trial might take place and cover a number of murders, but the individual has to be convicted on each particular murder. You cannot say, ``You are now convicted of four murders.'' It does not work that way.
[Translation]
Senator Carignan: I agree; I am a lawyer and I know that a person cannot be convicted of three murders under the same charge. But, if the charges are different, within the same trial, with the same evidence, with the same decision at the same time, the accused can be convicted on each charge. But that is in the case where a fraction of a second separates each charge. I understand the intent of the minister and of clause 745.51, that is to address those situations as well.
I find that is of the utmost importance; by asking the question, I want to ensure that that actually is what will apply and that no one will claim the contrary. What is being said today, clearly, can be used as an interpretation should a debate arise about it. So by asking the question here, I want people to understand that aspect. I want it to be crystal clear and to ensure that you have understood my question.
[English]
Mr. Nicholson: Can you please ask me the question again?
[Translation]
Senator Carignan: In cases where the charges deal with several murders and where the judge, in the same decision, finds the accused guilty of the first charge, for murdering Mr. X, and the second charge, for murdering Ms. Y, can you confirm that section 745.51 will apply and that it is the position you are proposing in this bill?
[English]
Mr. Nicholson: I have been assured by the officials that the wording will cover exactly that and that is how it will apply. You need not worry about that.
The Chair: Senator Joyal has a supplementary question on this point.
Senator Joyal: To illustrate the point raised by Senator Carignan, would it not be the case that, for instance, a father might kill his three children and wife, we would understand that he did this consecutively. However, if the same father locked four persons in the same room and set the house on fire, they would all presumably die at the same time. In that case, would it be covered by the wording?
Mr. Nicholson: This provision would apply regardless of whether the individuals are murdered consecutively or all at the same time.
Senator Baker: In other words, there will be count 1, count 2, count 3, count 4, count 5, count 6 and count 7; would there not?
Mr. Nicholson: Exactly.
Senator Baker: That is exactly what would be in the indictment and the information.
I have to ask you this question because it is normal for us to ask one regarding the Charter of Rights and Freedoms and Bill C-48. I ask you the question, keeping in mind that the Supreme Court of Canada passed a judgment called R. v. Luxton. In that decision, the Supreme Court of Canada said that the 25 years of ineligibility for parole in a first- degree murder charge is constitutional and does not violate section 7 or section 12 of the Constitution — fundamental justice or cruel and unusual punishment.
However, in the judgment given by Justice Lamer and supported by Justice Sopinka, at paragraphs 9 and 12, the Supreme Court of Canada said:
s. 672 of the Code provides that after serving 15 years the offender can apply to the Chief Justice in the province for a reduction in the number of years of imprisonment without eligibility for parole having regard for the character of the applicant, his conduct while serving the sentence, the nature of the offence for which he was convicted and any other matters that are relevant in the circumstances. This indicates that even in the cases of our most serious offenders, Parliament has provided for some sensitivity to the individual circumstances of each case when it comes to sentencing.
That same reasoning was used to also say that section 12 of the Charter was not violated.
Without the faint hope clause and the possibility of having 25, 50 or 75 years, on what basis then do you or your department come to the determination that Bill C-48 does not violate the Charter?
Mr. Nicholson: Ultimately, it is discretionary. On that basis, I am quite sure that it will stand the test of constitutionality.
Senator Baker: Thank you.
The Chair: Thank you very much. The officials will remain with us. I think there might even be one or two more to join us.
We are resuming our study of Bill C-48. I can see that Mr. Giokas jumped when I bagged the gavel hard. I have been instructed that I must bang the gavel hard for the benefit of broadcasting people. A gentle tap does not do it, apparently. I do not do it out of a will to be authoritarian here.
We are continuing our study of Bill C-48 —
[Translation]
— An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act. We now welcome the experts who will be helping us as we study this bill.
[English]
We have from the Department of Justice, Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section; and John Giokas, Counsel, Criminal Law Policy Section. Welcome back to you both. From the Department of National Defence, we have Lieutenant-Colonel Bruce MacGregor, Director of Law, Military Justice Policy and Research.
I imagine you do not have opening statements, that you are ready to take questions. Let me get in with a question first. I will humour myself here. It will be for you, Lieutenant-Colonel MacGregor.
Clause 7 of Bill C-48 replaces the existing section 149 of the National Defence Act with a new section 149. This may just be my crass ignorance but I was stopped cold when I read this.
It says basically where a person gets two punishments of incarceration,
. . . both punishments of incarceration shall, subject to section 745.51 of the Criminal Code, after the date of the pronouncement of the new sentence, run concurrently but the punishment higher in the scale of punishments shall be served first.
I never knew that something could be concurrently but not concurrently. Can you explain to me what that proposed section is trying to tell me?
Lieutenant-Colonel Bruce MacGregor, Director of Law, Military Justice Policy and Research, Department of National Defence: It goes back to 1950, the first National Defence Act in Canada. The rationale for that — and I went back to look at that because it struck me as odd as well —
The Chair: It is inherently contradictory.
Lt.-Col. MacGregor: The rationale for it is if you have two different tribunals or findings in different matters — you could be tried by a summary trial, you could be tried by a court martial or two different court martials — you could end up with different types of incarceration.
Proposed section 149 takes that into consideration, that we have different types of incarceration; under the code of service discipline, under section 139, you could be sentenced to detention, which is different than imprisonment, or you could be sentenced to imprisonment greater than two years, which would be served in a federal penitentiary rather than a service prison. With all of those different types of incarceration in mind, this was the one section that made it all make sense.
The Chair: For the sake of argument, you would go to the federal system and you would be counted as serving concurrently your little term in the brig.
Lt.-Col. MacGregor: Exactly. You would not serve five years in prison in Dorchester and then come back to Edmonton and serve two days' detention.
Senator Baker: First, I want to welcome the witnesses. Each one of them has done what I consider to be a great job in the past on legislation before this committee and before the House of Commons.
Regarding the chair's question, I will ask Lieutenant-Colonel MacGregor — who has considerable court experience before his present position — what is a provision doing with a side note of concurrent punishment in a bill that deals solely with consecutive punishment? What is the purpose of having that in this particular bill? I notice it is not referenced in the summary.
Lt.-Col. MacGregor: The rationale for having a concurrent punishment is because that is the sidebar within the National Defence Act. We would not be amending the sidebar for the sake of this bill; we would keep it consistent with what is in the National Defence Act. In the National Defence Act, it says ``concurrent punishment.''
Senator Baker: So you had to bring this measure in within the structure of this bill. Why would you have to do that?
Lt.-Col. MacGregor: The amendment is to include the section 745.51.
Senator Baker: As an exception.
Lt.-Col. MacGregor: As an exception to what is the standard concurrent punishment regime within the National Defence Act.
[Translation]
Senator Boisvenu: I will be brief. I have a really technical question for Mr. Giokas: take, for instance, an offender who is convicted for life, with no possibility of parole for 25 years and he is released after his 17th year — because he could get a conditional release after 17 years in a penitentiary. He is on a conditional release from his 18th to his 25th year. Let's assume he murdered someone in the 18th year, when he has eight years left before he is paroled. Will those eight years be added to the 25 to which the judge could sentence him for a second murder in the first degree?
Mr. Giokas: Is this before or after the bill comes into force?
Senator Boisvenu: Let's take for instance someone who is currently in jail and is released tomorrow morning, after having served 17 years. He still has eight years left. He commits a murder; will those eight remaining years of his conditional release be added to the 25 years he could get, amounting to 33 years, or will he simply get a sentence concurrent to the one he is already serving?
Mr. Giokas: Under the current act, he will begin a second 25 year period upon conviction for the second murder. So, in total, he would have served 17 years plus 25 before he may once again apply for parole. So that is 42 years in total. But, as far as the remaining years of release, no, he begins a new 25 year period, under the current act.
If Bill C-48 is passed — but this depends whether the first murder took place after the bill came into force — a judge could make the sentences consecutive.
Senator Boisvenu: Otherwise, for the second murder, as both acts would apply, it would not be consecutive.
Mr. Giokas: Under the current act, no.
[English]
Senator Raine: I am not an expert but I am curious. Clause 745.51, it appears to me the words are different in French and English. In English, it says ``and who has already been convicted''; and in French, it says ``a été déclaré coupable,'' but without the word ``déjà.'' I am wondering why it is different.
Mr. Giokas: I am informed by the drafters — and I am sure senators Carignan and Boisvenu will be in agreement — that French is much more logical and ``a été déclaré coupable'' covers the situation. You do not need the word ``déjà''; it would be superfluous. That is what I am informed by the drafters.
[Translation]
And, excuse me, also by Senators Chaput and Joyal.
Senator Carignan: Perhaps my question is in the same vein, with respect to the use of the word ``already'', which may imply that the accused had been found guilty previously. So, it supports the assumption I was discussing earlier on with the minister regarding convictions in a simultaneous ruling, given that, when the accused is convicted, he may not have been found guilty previously. It gets back to Senator Raine's question regarding the use of the work ``already'' in the English version that seems to be slightly different from ``qui est declare coupable de meurtre'', which also goes back to the conversation I had earlier with the minister. However, I heard your response; I do not know if perhaps you have any other comments on it.
Mr. Giokas: I was in the drafting room as this bill was being drafted and I asked the same question. As an anglophone, I asked the same question and the response I received was that the French was more logical. I am not a francophone.
Senator Carignan: As a francophone, I am asking you, as an anglophone, to tell me, whether, when you read the words ``who has already been convicted,'' they mean that it may be for concurrent convictions?
Mr. Giokas: As I have said on several occasions, that is impossible; they are consecutive, one after the other.
Senator Carignan: Within the same ruling, they are separate convictions, but simply rendered within the same ruling.
Mr. Giokas: But this wording covers both that situation and a number of different trials. Because either way, the conviction follows another conviction.
Senator Carignan: That does not change anything for me.
[English]
Senator Frum: As an anglophone, I want to ask about the choice of the word ``already'' as opposed to ``also.'' ``Already'' includes the past tense. I am sitting next to a very brilliant lawyer, and if he were a defence lawyer, he has an argument, and it is not going away. As a citizen who likes the intents of this bill very much, I am concerned. Is it not less ambiguous in English to say ``convicted of a murder who has also been convicted of one or more other murders?''
Mr. Giokas: Yes, but ``already'' has a temporal element in it which, as I say, the English drafter believed was necessary in the English version. As a former defence lawyer, I can say that yes, the wording of provisions is fertile ground. Anyone who has practiced law knows that there is no more fertile ground for appeal than a judge's charge, which goes back to the question that was asked when the minister was here, which was why the notice is so technical.
Senator Frum: I am asking about the temporal intent of the word ``already.'' Why have a temporal word when you do not need to?
Mr. Giokas: You are asking me drafting questions. I can only respond with the answer I got from the drafters. I am not a drafter.
The Chair: Here we go again, because these are drafting questions that I will put, but inspired by my colleagues.
I am looking at clauses 4 and 5. In clause 4, we refer to an accused who has previously been convicted of murder.
[Translation]
An accused already found guilty.
[English]
In the clause immediately following, clause 5, we refer in English to an offender who has already been convicted — ``already'' versus ``previously.''
[Translation]
And in French we see ``qui a été déclaré coupable,'' You already have the word ``déjà'' which does not appear, although it does in the previous section.
[English]
Why is that? What possible difference would there be for the use of different terminology in these two cases referring to the same person?
Mr. Giokas: They both mean the same thing. They both refer to a difference in times, ``previously and already.'' I cannot explain why ``déjà'' appears in clause 745.21 in the French version.
Senator Joyal: It is because in the first case, the top line, you do not have the verb.
[Translation]
An accused already found.
[English]
In the other section, you have ``a été,'' and the verb stands for the notion of time, for the past. That is essentially why it is different.
The Chair: That is helpful. We are left with the elegant variation as between ``previously'' and ``already.'' I am to take the assurance that they mean exactly the same thing and that no one will split hairs on that. Someone will try, I am sure.
Are there other questions for the officials, colleagues?
Senator Joyal: I might have one of Mr. Giokas or Ms. Kane.
The bar was concerned with the principle of independence of the prosecutor in the exercise of his function. If I can read the sentence of the bar's letter to the minister, it states:
[Translation]
The Bar foresees potential ethical problems arising out of the application of this provision.
[English]
You will remember the question I put to the minister in relation to the fact that a judge has to inquire from the prosecutor if there is someone who will speak on behalf of the group. The bar is concerned and sees the deontological problem raised for the implementation of that section. How would you answer that letter?
Ms. Kane: I believe you are referring to the other bill, Bill C-21, sentencing for fraud.
Senator Joyal: Yes.
Ms. Kane: I can answer that now, but is it something you would want to raise again tomorrow when we are back to deal with Bill C-21? It is entirely up to you.
Senator Joyal: I will ask the question tomorrow.
Ms. Kane: I will gladly answer tomorrow.
Senator Joyal: Yes. Thank you.
The Chair: I think you have beaten us into submission, but I will make a suggestion. This goes back to my question to the minister about the question that the judge must read to the jury. I only read out the English version, but my colleagues were equally taken by the opacity of the French language version. I would strongly suggest that the ministry engage the services of a professional editor. It is possible to be both clear and technically accurate in almost all circumstances, with possible exceptions for the Income Tax Act. This is a question that judges will have to put to citizens of Canada of a widely varying background. To require them to put a question that I am willing to bet quite a lot of them will not understand seems a bit excessive, when it would have been possible to phrase it in a clearer manner. That is a suggestion I am offering to you. You may do with it what you will.
With that, on behalf of the committee, I thank you very much. It appears that most of you will be back tomorrow, in any event.
Senator Joyal: I have a few questions for Lt.-Col. MacGregor.
Lt.-Col. MacGregor, I am looking at section 149 of the National Defence Act. Do you have that in front of you?
Lt.-Col. MacGregor: I do.
Senator Joyal: Are the proposed changes essentially to include the new proposed subsection 745.51, or has it changed something else in section 149 of the National Defence Act?
Lt.-Col. MacGregor: No, senator. The only change is the subject to proposed subsection 745.51 of the Criminal Code.
Senator Joyal: It is just to take into account the new section of the code to allow the judge to review the issue of double murder or that sort of thing.
Lt.-Col. MacGregor: That is correct.
Senator Joyal: Good. I apologize. I did not check the original section 149. I wanted to be clear that I understood it.
Lt.-Col. MacGregor: You understand it correctly.
Senator Joyal: Thank you.
Mr. Giokas: I wish to add a clarification about these provisions. I have written down your suggestion that language be clarified. However, these are sentencing provisions. In a sentencing situation, the Crown and defence both make presentations. After the judge charges the jury, they both have a chance to comment. If they feel the judge has charged inappropriately, then they are given a chance by the judge to correct him.
It is not the case that the judge makes a statement to the jury and pronounces a sentence without any input from the Crown and defence.
The Chair: No, I understand.
Mr. Giokas: When I said earlier that there is no more fertile ground for appeal than a judge's charge, that is statistically true. Judges are very careful to ensure their charge is balanced and fair because they do not want to be overturned on appeal.
I agree the language could be less technical but it is technical for a reason. When the judge explains all this to the jury and responds to the Crown and defence submissions, there is an interplay. That is what happens at trial; it is not just simply the notice and that is it.
I wanted to clarify that. There are those who have been in court and know what happens at a sentencing hearing.
The Chair: We all bring with us a professional mindset. I spent most of my career as a journalist and editor striving for simplicity of language. I still think that is a high and worthy goal, but I understand that those with legal and drafting training do not have the same automatic instincts that I do.
Thank you very much, indeed, for your clarifications.
[Translation]
The Chair: Colleagues, we are resuming our study of Bill C-48, an Act to amend the Criminal Code and to make consequential amendments to the National Defense Act. From the National Parole Board, we now welcome Ms. Suzanne Brisebois, Director General, Policy, Planning and Operations.
[English]
From Statistics Canada, we have Julie McAuley, Director, Canadian Centre for Justice Statistics; Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics; Mia Dauvergne, Senior Analyst, who has been with us frequently; and Rebecca Kong, Chief, Correctional Services Section, Canadian Centre for Justice Statistics.
Please begin.
Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity for us to present to the committee regarding Bill C-48.
Statistics Canada does not take a position on the proposed amendments in the bill. The presentation we have prepared contains our most recent data on homicides in Canada. All data sources used are clearly indicated on the slides, as are any pertinent data notes. Distributed for your consideration is the most recent Juristat related to homicide in Canada. My colleagues will help answer any questions you might have. Please turn to the second slide in the deck.
Using data received from police services across Canada, we can examine trends in the homicide rate. Homicide includes first-degree murder, second-degree murder, manslaughter and infanticide.
After peaking in the mid-1970s, the homicide rate generally declined until 1999. Despite annual fluctuations, it has remained relatively stable since. In 2009, police reported 610 homicides in Canada — 1 less than the previous year.
Homicide is the most serious criminal offence. A country's homicide rate can be used as a barometer to measure the level of violence in that society. It is also the only criminal offence directly comparable among nations.
As seen on slide 3, Canada's homicide rate continues to be one-third of that of the United States but comparable to many European nations.
Slide 4 shows the number of gang-related homicides and the number of homicides not related to gang activity over the last decade. By ``gang-related,'' we mean whether the police identified the homicide as involving an organized crime group or a street gang. Gang-related homicides have been generally increasing over the last decade. This upward trend contrasts with the number of homicides that are not gang related. In 2009, 20 per cent of all homicides in Canada were reported by police as being gang related.
Please turn to the next slide. Over the last 10 years, the proportions of homicides involving single and multiple victims has remained relatively stable.
In 2009, 94 per cent of homicides involved one victim. Of the remaining 6 per cent, or 35 incidents involving multiple victims, 26 per cent involved two victims; 6 involved 3 victims; and 3 involved 4 victims. Homicides, whether involving single or multiple victims, are generally committed by men in their early 30s.
Homicides in Canada are most often committed by someone known to the victim. Slide number 6 shows the accused-victim relationship for homicides that were solved between 2000 and 2009 — in other words, homicides for which the police identified an accused person.
Between 2000 and 2009, the majority of solved homicides in Canada were committed by family members, which includes individuals related by blood, marriage or adoption. During that time period, family members committed the most multiple victim homicides, while acquaintances committed the most single victim homicides. Acquaintances include friends, neighbours, authority figures and casual acquaintances.
The number of solved homicides committed by strangers has been increasing over the last few years. Between 2000 and 2009, strangers were accused in 17 per cent of multiple-victim homicides and 16 per cent of single-victim homicides.
In Canada, there have generally been two primary methods to commit homicide — shooting and stabbing. On slide number 7, we see that homicides involving multiple victims were most often committed with a firearm, whereas those involving single victims were most often committed with a knife.
The number of homicide charges heard and cases completed in adult criminal courts in Canada have fluctuated since 2000-01. These include charges for first-degree murder, second-degree murder and manslaughter. In 2008-09, there were 370 homicide charges contained in 272 court cases. This is the lowest number of charges and cases in adult criminal courts in more than a decade. Homicide data collected from criminal courts does not permit us to differentiate between first- and second-degree murder, as these are collected under one Criminal Code section, section 231.
Slide number 9 shows the proportion of guilty findings for cases with both single and multiple homicide charges. In 2008-09, 45 per cent of the homicide cases heard in adult criminal courts resulted in a finding of guilt. Of those, 94 per cent had 1 guilty homicide charge, while 6 per cent had multiple guilty homicide charges.
The number of persons admitted to federal custody to serve a life sentence for murder has fluctuated over the last 20 years, ranging from a low of 109 admissions in 1989-90 to a high of 159 admissions in 2006-07. In 2008-09, there were 139 admissions to federal custody for murder. Of these, 4 per cent were women and 22 per cent were Aboriginal. Individuals ranged in age from 19 to 67, with an average age of 34 years old.
On slide number 11, we see that the average number of years served prior to parole by murderers serving a life sentence has increased from approximately 12 years in 1999-2000 to approximately 17 years in 2008-09. During that time period, 26 per cent of inmates serving a life sentence for murder in federal custody were released for their first time on parole; the vast majority were released to day parole.
Once again, thank you for the opportunity to present to the committee. This ends my presentation.
The Chair: We will go right to you, Ms. Brisebois and then to a question period for all of you indiscriminately.
Suzanne Brisebois, Director General, Policy, Planning and Operations, National Parole Board: Thank you for the invitation to speak today on Bill C-48. I work at the National Parole Board of Canada as the Director General of Policy, Planning and Operations.
The Chair: I would ask you to slow down slightly for the benefits of the interpreters.
Ms. Brisebois: I am sorry about that.
The Chair: You are not the only one who gets this interruption.
Ms. Brisebois: As our chairperson has appeared before this committee previously, you are aware of our status as an independent administrative tribunal that reports to Parliament through the Minister of Public Safety. The board is responsible for making quality conditional release decisions for offenders serving federal sentences of two years or more, as well as provincially sentenced offenders serving less than two years in provinces without their own parole board. As well, the board is responsible for pardon decisions and clemency recommendations.
The Corrections and Conditional Release Act, CCRA, directs the board in its decision making, most notably that the protection of society be the paramount consideration in the determination of every case. In every decision that the board makes, it must determine whether the offender presents an undue risk to reoffend prior to the expiration of the sentence, and whether the release of the offender in the community would contribute to the protection of society through their safe reintegration back into the community.
In making their decisions, board members undertake a thorough risk assessment. They assess all available and relevant information. This information includes such things as court information, court transcripts, sentencing comments, police reports, and information from the Correctional Service of Canada such as parole officer recommendations and program officers. We also review psychiatric and psychological reports, as well as information from victims, to name a few.
Turning to the bill before you today, Bill C-48 would have a limited impact on the board. The board is not involved in setting the eligibility periods for offenders. Parole eligibility is determined through the courts and the legislation, being the CCRA and the Criminal Code. We decide on cases brought forward to us by the Correctional Service of Canada. If this bill is passed, the board would not conduct hearings for these cases that would be affected for a considerable time in the future.
To give you a sense of our current conditional release workload, the board undertook close to 17,000 reviews in 2009-10. During the same period, the board held 23 full parole hearings with offenders convicted of murder where there was more than one victim.
The Chair: How many?
Ms. Brisebois: There were 23 full parole board hearings.
At the present time, there are 4,420 offenders serving life sentences for first- and second-degree murder. Of these, 421 had more than one victim. Of the 421 offenders, 95 are currently on full parole. Given these numbers, the operational impact of seeing such offenders later in their sentence as a result of the eligibility period would not be significant in terms of the board's workload.
Thank you very much. I am more than happy to answer any questions.
[Translation]
Senator Boisvenu: I have two questions pertaining to statistics. I see you have a slide on the average time served for first degree murder. It was slightly more than 12 years in 1999 and now it is approximately 16 or 17 years. Do you have statistics on the length of incarceration for an offender who commits two or more offences? This strikes me as an overall statistic.
[English]
Rebecca Kong, Chief, Correctional Services Section, Canadian Centre for Justice Statistics, Statistics Canada: Yes, it is. It includes first- and second-degree murderers. In the data set we have, unfortunately, we are unable to determine whether there was more than one victim.
[Translation]
Senator Boisvenu: Could you send the committee the average time served by offenders who committed more than two murders in Canada over the last 10 years? Did they serve 30, 40 years? Or do they serve just as much time as someone who has committed one murder? Is there some distinction to be made there?
[English]
Ms. Brisebois: We looked at the breakdown for offenders convicted of first- and second-degree murder where there was more than one victim. For those offenders, on average, they served 17 years.
Twelve of the 95 we looked at had their parole ineligibility reduced through judicial review. For the first full parole release, it was 17 years on average.
[Translation]
Senator Boisvenu: Are you telling me that, in Canada, whether you murder one person or two or three, you serve about the same amount of time?
[English]
Ms. Brisebois: That is based on the statistics that I have, which are comparable to those of my colleagues.
[Translation]
Senator Boisvenu: On page 12 of your document Homicide in Canada, I was somewhat surprised by one heading. The number of youth between 12 and 17 years accused of homicide is the second highest in 30 years. Have you, either at Statistics Canada or at the National Parole Board, observed an increase in the number of multiple murders committed by young people 12 to 17 years old over the last 10 years? Is my question clear?
[English]
Ms. McAuley: I do not have that information. However, I have the total number of youth accused in a trend. It is in table 7 of that document, on page 23. It looks at those accused of homicide. It does not distinguish, however, between those that are single- and multiple-victim homicides.
[Translation]
Senator Boisvenu: That statistic strikes me as important. It is surprising to see that the number of young people accused of homicide is the second highest ever. In that age group, youth 12 to 17, has there been an increase in the number of cases where young people commit double murders? Can you find us any data on that?
[English]
Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada: Are you asking if we have information on the number of youth who committed homicides against more than one person? Yes, we do and we can provide that information to the committee.
The Chair: Does the data you have capture young people who were tried and sentenced as adults, or are they lumped in with the general adult population? I am assuming that many young people who commit multiple murders are scooped up into the adult system. I may be wrong about that. Do you have those numbers?
Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics, Statistics Canada: The difficulty in identifying youth who are tried and sentenced as adults is that it still occurs in the youth court system. Murder would be different because, as an adult, the sentence would be life. However, for other offences, it is much more difficult. The individual would be sentenced and there would be no other information to tell us if he or she were sentenced as an adult because it still occurs in youth court.
Theoretically, we could go back to see whether or not there were any murders or homicides by youth with an adult length sentence. I do not know whether or not there are any. We could look.
The Chair: We are pressed for time, as always.
[Translation]
The Chair: My apologies, Senator Boisvenu.
Senator Boisvenu: Thank you, Madam Chair and thank you to our witnesses as well.
[English]
Senator Runciman: My question is with regard to the young offenders and parole eligibility and how they would be impacted by this legislation. There is indication that they would be if they were tried in adult court. We are talking about multiple murders, for example. Does this override the section of the Criminal Code that spells out parole ineligibility periods for people 18 and under?
Mr. Grimes: I do not know the answer to that question. I can talk about the statistics and I can talk about where the data is coming from.
Senator Runciman: You referenced section 231 in your presentation and I am not sure of the context. You said that it does not allow you to distinguish between first- and second-degree murder. Could you elaborate briefly on that?
Ms. McAuley: In terms of the court and corrections information, the slides are taking both first-degree and second- degree murder together. We cannot distinguish for you what the court caseload would be and the number of charges for first-degree murder and second-degree murder separately, nor would we be able to give you correctional information for individuals who committed first-degree murder and second-degree murder.
Senator Runciman: What is the rationale for that definition of homicide, where you lump together manslaughter and infanticide in the legislation? We are dealing with legislation that deals with first- and second-degree murder. What was the decision at Statistics Canada around that?
Mr. Grimes: It is not a distinction specifically of Statistics Canada. The difficulty with first- and second-degree murder is that there is only one subsection within the Criminal Code that identifies second degree murder. That is subsection 231(7). It says, ``All murder that is not first degree murder is second degree murder.'' That is in the definition section.
The punishment section for murder is section 235, which says first- and second-degree murder. As it is all in one section, it is impossible for us to break that out. There are also provisions within the code that allow for the reduction of first- and second-degree murder to manslaughter. Therefore, when information comes to Statistics Canada for first- degree murder or second-degree murder, if it is specified under subsection 231(7), it is possible that those charges will be reduced to manslaughter. Unless the information is updated, it is impossible for us to differentiate. We have not gone back to ensure that that information is captured in a way that is reflected in the outcomes of those criminal trials for those cases because of the different nuances around first-degree murder, second-degree murder, the charging, the reductions to homicide, and manslaughter for that group of offences. On the court side, infanticide has been removed.
Ms. McAuley: Senator Runciman, we can provide you with data on each of those offences. We can break it down for you if you would like.
Senator Runciman: Yes, I would.
Ms. McAuley: Between 2000 and 2009, of the total number in homicide, approximately 50 per cent were first-degree murder, 40 per cent were second-degree murder, 10 per cent were manslaughter and 0.3 per cent were infanticide. No cases of infanticide were brought to the attention of the police in 2009. Our definition of ``homicide,'' in grouping those together, is a consistent definition that is used internationally. We know that all of these crimes will come to the attention of the police and it is a very consistent definition that we have used since 1960.
Senator Runciman: You were talking about 421 multiple murderers that are currently incarcerated, with 95 on full parole, and 326 on some kind of day parole program. They will not be impacted by this legislation. Could you speak to the considerations that come into play when assessing an application for parole from a multiple murderer?
Ms. Brisebois: Each case is assessed under the criteria outlined in the Corrections and Conditional Release Act. It involves board members' assessment of all available and relevant information with respect to the offender's risk. It includes the determining of whether the offenders would pose an undue risk to society if they were released to the community, and whether their release would facilitate and contribute to the protection of society. There are specific criteria under the Corrections and Conditional Release Act that board members use as part of their decision-making process in all cases. It is applied to offenders that are convicted of homicides as well as offenders convicted of other types of offences.
Senator Runciman: I think most Canadians would be alarmed to know that there are 95 multiple murderers allowed out on parole. Is there some kind of standard profile that would give Canadians some comfort with respect to why the board makes a decision to allow multiple murderers back into the community?
Ms. Brisebois: I cannot get into the specifics of the cases but, generally, offenders released into the community are assessed as being manageable in the community. The board uses the criterion of risk, and these offenders were deemed to not present an undue risk and were granted parole. I cannot comment further than that.
Senator Watt: You mentioned Aboriginals in your presentation. You went so fast that I do not think I caught everything you were saying. Could you go back and read the point you raised about Aboriginals? All I captured was something about 20 per cent.
Ms. McAuley: Certainly. We are looking at admissions to federal custody on slide 10. I can give you a few statistics, if you would like. They are not ones that I read right away.
If we take 2008-09, there were 139 admissions to federal custody for murder. Of those, 22 per cent were Aboriginal. If we look over a 10-year span from 1999 to 2008-09, 18 per cent were Aboriginal.
Senator Watt: Do you have a breakdown of information as to where those Aboriginals are coming from? Are they from the South, the North or partway? Do you have any breakdown on that?
Ms. Kong: We do not have information on where they originate from. We would have information on which region of Canada they are incarcerated in, if that is helpful at all. However, we do not have personal information on their area of residence on the data file we receive.
Senator Watt: Do you keep track of the information that is coming into your office in terms of whether they are First Nations, Inuit or Metis? Do you have anything in there that we could use to identify them?
Ms. Kong: The data we have from the Correctional Service of Canada does have a breakdown according to Aboriginal identity. Typically, we roll it up together because of the small numbers, but I can find out whether we can provide some sort of breakdown, even if it is for the 10-year period rolled up, if you would like that.
Senator Watt: I would appreciate that.
Ms. McAuley: To follow up, on the homicide survey, we can ask questions about the Aboriginal origin of the chargeable suspect. It is about 50 per cent reporting from the police services on there. We can break it down by North American Indian, Metis, Inuit Eskimo or various categories of ``not provided.'' If you would like that, we can provide that to you.
Senator Watt: That would be helpful.
Senator Chaput: It is a short question. What about the age of Aboriginals? When we discussed slide 10, I believe you mentioned that the average age was 34 years old. I jotted this down. Does this apply also to Aboriginals?
Ms. McAuley: We would have to look at that by Aboriginal status.
Senator Chaput: Could you do that?
Ms. McAuley: Yes, we can.
The Chair: That would be helpful. As you know, there is an abiding concern on this committee about the impact of the justice system on Aboriginals in terms of the proportions and breakdowns. Please take it as read that we are always interested in those breakdowns.
Senator Wallace: Ms. Brisebois, I have a couple of questions from your presentation. I am trying to get a sense of what the current experience is with the Parole Board and the number of offenders, of multiple murder offenders, that would receive full parole or something less than that, compared to what the consequence would be if Bill C-48 comes into law. Clearly, that will increase in that Bill C-48 will increase the time that would be served by multiple murderers. With that backdrop, that would increase the time that would be served and compare that to what exists today.
On the second page of your presentation, you refer to the 2009-10 period where the board held 23 full parole hearings with offenders convicted of more than one murder. How many of the 23 actually received parole?
Ms. Brisebois: I do not have that information with me today but I can get that to the committee.
Senator Wallace: That would be fine; I appreciate that. Would you have any sense, percentage-wise, based on your experience?
Ms. Brisebois: I do have some information that may be of interest to the committee in terms of offenders reviewed for full parole. We looked back on part of our data to April 1, 1994, which is about a 17-year period. Over that period, 149 full parole supervision periods were granted for offenders serving sentences for first-degree or second-degree murder where there was more than one victim.
Of those cases, 95 of those offenders are currently under full parole supervision in the community, 15 have died, 25 have been revoked for breach of condition, 9 have been revoked for nonviolent offence, and 5 were revoked for a new violent offence. To break down the five violent offences, three were for assault-related offences, one was for a sexual offence, and one was for an attempted murder.
Senator Wallace: Therefore, over that 17-year period, 149 were multiple murder parolees, and 95 out of 149 are now on full parole. That is a pretty high percentage.
I have one other question. On the second page of your presentation, you refer to the fact that 421 offenders had more than one victim. Of the 421, 95 are currently on full parole. Senator Runciman referred to this earlier. Of the 421, would you know how many would be on parole that would be less than full, if not on full parole?
Ms. Brisebois: Sorry, the 95 are on full parole.
Senator Wallace: Would there be any who would be on less than full parole, such as day parole?
Ms. Brisebois: Possibly. We did not do such a breakdown. Getting back to my colleagues in terms of the statistics, normally day parole often precedes the full program. In terms of the 95, we did not do a breakdown in terms of those who received day parole as part of the full parole. We wanted to look at the legislation in terms of the full parole eligibility date.
However, if there is additional information in that area or questions about that, I can see what I can find out.
Senator Wallace: This is my final question on that. Of the 421 offenders of which 95 are on full parole, would you know how many of those 421 offenders applied for full parole?
Ms. Brisebois: The full parole reviews are automatic as a part of the legislation under the CCRA. They would only be applying for day paroles. Full parole is part of the legislation.
Senator Chaput: I have another very short question regarding slide 10 and the age factor. You did say that 22 per cent, I believe, were Aboriginals, and 4 per cent were women. Of the 22 per cent Aboriginals, are there any women or would the number of women be in the 4 per cent?
Ms. McAuley: They would be counted in the 4 per cent and possibly counted in the 22 per cent. However, we could pull it together and let you know how many Aboriginal women were included.
Senator Chaput: Thank you. Could we have the age factor, also?
Ms. McAuley: Yes, certainly.
The Chair: We will know so much.
I would like to come back to the question Senator Runciman put to you, Ms. Brisebois, about what kind of offender makes up the famous 95. You explained that you cannot give us any profile, but can you give us any impression or sense at all of the kinds of multiple murderers who end up getting full parole? Is it more likely to be someone who killed several family members — maybe children? Is it more likely to be a contract killer for the mob?
Is there anything you can tell us so that we can have a sense of what is involved with these 95 people.
Ms. Brisebois: I can certainly get that information for you in terms of looking at a comparison as to whether it was acquaintance or family member.
The Chair: That kind of thing is what I am interested in. It may not affect the moral weight or even the factual weight of this bill, but it will affect our understanding of what we are doing here as well as the context into which a bill like this fits. That would make a significant difference to us.
Colleagues, I cannot believe it. Everyone has been so good about concise questions and concise answers that I think we are in a position to thank these witnesses and free them.
Thank you very much. We look forward to receiving that information from you, the sooner the better.
Colleagues, we are pleased to welcome as witnesses for this stage of our proceedings, from the Canadian Criminal Justice Association, Willie Gibbs, who is a member of the Policy Review Committee; as a representative of the Criminal Lawyers' Association, Leo Russomanno; and from the Canadian Association of Elizabeth Fry Societies, Kim Pate, Executive Director, who is a familiar witness here. We thank you all very much for being with us this evening.
Do you have any preference among yourselves which of you goes first? If not, we will start with you, Mr. Gibbs.
Willie Gibbs, Member, Policy Review Committee, Canadian Criminal Justice Association: You are going with age, are you?
Thank you very much for allowing CCJA, Canadian Criminal Justice Association, the opportunity to present a brief to the committee. I am pleased to represent the Canadian Criminal Justice Association on this score. By way of introduction, I would like to make two points.
First, in the legislative summary that we have here, it talks about 1976, when lifers had to serve 10 years to 25 years in the case of second-degree murder before they were eligible for parole. In the case of first degree, they were to serve a mandatory term of 25 years.
What is not said is why that change was made — at least, I did not see it in the brief. That was the year that capital punishment was abolished. Prior to that time, as you probably know, a case of non-capital murder, which represents second-degree murder today, had to wait seven years to be eligible for parole. In the case of capital murder, for those whose sentence was commuted to life, they had to serve 10 years.
When capital punishment was abolished, it was clear that a trade-off was made so that, yes, on the one hand, capital punishment was abolished, but then the lifers would need to serve a long time before they would be eligible for parole. This represented, especially for the first-degree murders, two-and-a-half times more than in the past.
If the legislators of the day wanted the lifers to serve a lot more time before being eligible for parole, they got their wish. This brings me to my second point. If you look at table 5 on page 7 of the yellow brief, a comparison was made in 1999. For Canada, the numbers would probably go up. Regardless, we will rely on this.
When I look at this comparison that was made among several Western democracies, it is striking, if not shocking, to see what rank we hold on this list. Where parole exists, we are by far at the top or at the bottom, depending on how you want to look at it. That includes the United States. I am sorry that in our own brief we did not talk about that; it should have been raised. I thought that I would tell you that by way of introduction.
I am prepared to answer any questions you have for me.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for the invitation to appear and also for the efforts to ensure we were able to appear. Given the challenges of agendas, I am sorry to be appearing before this committee without a board member. As you know, we like to have a board member with us but cannot always do that.
We are extremely concerned about this being yet another piece of legislation that appears to be created in the context of where there is no need for it.
Currently, those individuals who have been convicted in relation to more than one homicide, capital or noncapital as has been identified by the previous speaker, can and are being kept beyond the current parole ineligibility periods laid out by the Criminal Code. As we know, if someone is deemed to be an ongoing risk to society, the stringency is evidenced by the testimony from the previous speakers from Statistics Canada, who showed the steady increase in the period of time that people are serving in custody before they go out on some form of conditional release. Clearly, the message has been received by the Parole Board and people are not being released at the same rate.
It behooves us to ask the obvious question — namely, to what purpose are we developing new legislation when the public policy purpose being proposed can be achieved, and which we would argue is already being achieved at this time.
Given our focus on marginalized, victimized, criminalized and institutionalized women and girls, of the women we see who have been convicted of more than one homicide, almost invariably it is reactive to some form of violence that is first perpetrated against them. Often we would argue it is defensive, although the state of the law in catching up in terms of self-defence with respect to particular issues of violence against women has been slow.
In fact, two of the first cases that came up for judicial review — because that is also discussed in this bill — are women. Had their cases still been active at the time that the Gamble decision in the Supreme Court of Canada came down, they would have been immediately released. They were not; they had to go through the whole process of judicial review because they were convicted under the old constructive murder legislation.
That is just a reminder that, when something feels like rhetoric at times around some of these issues, it is important to peel back the layers. Women, and indigenous women in particular — and those who might have been brought into gang-related activities — might be convicted as parties in the context where they were not actually involved in the killing. That might be true of others involved in those group activities, as well.
It is important to point out that when this bill was before the House of Commons standing committee, Victims of Violence's Sharon Rosenfeldt and I appeared at the same time. One clear thing is that most victims we work with acknowledge that there are few individuals for whom they think this sort of provision is needed. They are often being misled to believe that we need a new law instead of the fact that the current law can and is being upheld, and should be supported as it stands rather than going through these kinds of exercises to create new laws when we do not need it.
I look forward to the questions and thank you very much for your invitation.
Leo Russomanno, Representative, Criminal Lawyers' Association: I would like to thank the committee for inviting the Criminal Lawyers' Association, CLA. Engaging in a debate with lawmakers is always something that I personally relish, as does the Criminal Lawyers' Association. I would ask that you keep in mind that Joseph Di Luca was supposed to attend today and those are pretty big shoes for me to fill. However, I have gone through all the materials and I am happy to answer questions.
I still start by talking a bit about the Criminal Lawyers' Association. It is a non-profit organization founded in 1971 and we represent over 1,000 lawyers. Our objectives are basically to educate, promote and represent criminal lawyers on a broad range of issues within criminal and constitutional law.
Along with Crown attorneys, we are the front line of the criminal justice system, as well as the judiciary. In my experience, going to conferences such as Criminal Lawyers' Association ones, is one of the parts of my job that I enjoy the most. I like speaking to other lawyers, Crown attorneys and members of the judiciary about these issues that are coming up. There is no doubt that we keep a close eye on what our lawmakers are doing, and what kind of messages are being sent about the administration of justice in this country.
In terms of sentencing and punishment in our criminal justice system, the Criminal Lawyers' Association sees one of the hallmarks as being a balanced, tempered and measured approach to punishment; it does not favour one ideology over the other. As lawyers, we tend to look for evidence when we want to make changes to the law when something is well established and a radical change is proposed. As lawyers, we look at what the evidence is and why we should be changing this. If it has been working up until now, is there a problem that needs to be fixed here? That is really the question I am asking this committee when looking at this proposed piece of legislation.
The Criminal Lawyers' Association does not support this bill. I would like to frame it in a two-fold manner. The first point is that this is a cure for no known disease — there are not even any symptoms from what I can tell. In my respectful view, this is legislation that is aimed at looking for a problem.
There is not a problem when we look at some of the statistics mentioned by Mr. Gibbs, as well as in the testimony of Mr. Di Luca before the House of Commons committee, which included a statistic we do not have. I will get to that in a minute.
The second issue I wanted to raise about this legislation is the message it sends to Canadians about the administration of justice and this crisis of confidence we perceive in the criminal justice system. The Criminal Lawyers' Association says there is no crisis in the criminal justice system. There is a crisis of confidence; those are two separate things. Whether that crisis of confidence is based on a real fundamental flaw within the criminal justice system is one thing; whether it is based on a lack of public education is another.
I would echo Mr. Di Luca's comments before the House of Commons committee that the crisis of confidence is due to a lack of public education. One of the things this piece of legislation does is exacerbate that lack of education about the criminal justice system.
I will simply point to the title of the legislation in making that point. The implicit message being made by this title ``. . . discounts for multiple murders . . .'' is that you murder one and you get one free. In essence, that is what the title suggests.
In my view, that is a problematic message to be sending about the administration of justice in our country. As one of the front-line workers, I can say that you do not get a discount for committing a second murder or a third or a fourth. There is no such discount.
I would ask the committee: What is the problem that this legislation is aimed at correcting? Is there really a discount for multiple murders in this country?
What I would suggest to the committee is that this is a question of optics. If the public is made to properly understand what the issue is here, I am confident the public would realize that there is no operative discount. The reality is much different.
Getting back to the statistics, we do know that approximately 75 per cent of those who commit multiple murders never receive parole. What we do not know is that of those remaining 25 per cent who do receive parole, what is the average time they spend before they receive parole?
That is the statistic Mr. Di Luca alluded to in his testimony. I would echo as well that is the statistic we need to know to engage in this kind of discussion because that is what answers the question: How much premium — or discount, according to the title of the legislation — are people getting, if at all?
When we look at the other statistic that was mentioned by Mr. Gibbs, we know that Canadians serving life sentences are receiving parole after approximately 28 years. That is on the high end of the spectrum compared to other industrialized countries. We know that the National Parole Board, therefore, is not a particularly lenient body, which is fine.
On the question of constitutionality, the position of the Criminal Lawyers' Association is that there is likely not a problem with the constitutionality of this legislation, given the fact that it does increase judicial discretion. The problem that the Criminal Lawyers' Association would have is that it is a binary discretion — that is, it seems to be either 25 years or 50 years in the case of two first-degree murders. That does not mean necessarily that there may not be a problem in conjunction with the elimination of the faint-hope clause.
I can refer the committee members to a case of the Supreme Court of Canada. I believe the case is R. v. Luxton, 1990, in which the Supreme Court of Canada refers to the faint-hope clause as something that saves a life sentence from constitutional scrutiny. That would be one particular issue that the committee may want to look at. I suggest that the fact that it is discretionary potentially saves the legislation, but that it is binary — that it is either 25 years or 50 years — is particularly problematic.
I would like the committee to keep the following in mind. The CLA does not quibble with the goal of bringing accountability to the justice system and to restoring confidence in the criminal justice system, but it would like you to consider evidence. The criminal law is a blunt tool and it affects lives seriously, as we all know, and it should not be used for political ends.
The committee should also keep in mind the concept of parole as a carrot, as something that gives hope to one who is about to go into serving a life sentence. That is serving a purpose; whether it is a hope that will never be realized is irrelevant in the sense that providing someone with hope of getting out after 25 years, as opposed to 50 years, will actually create a difference with respect to rehabilitative potential in our institutions. I would suggest that it may also cause issues with respect to violence in our institutions if we were to have a group of individuals who were essentially on life without parole.
Thank you for allowing me to appear.
Senator Wallace: Thank you for the presentations. Mr. Russomanno, my first question is to you. You said something that surprised me. Maybe I misunderstood what you said, but I thought you suggested that committed multiple murderers hardly ever get out on parole. That is inconsistent with the evidence we heard earlier this afternoon from Ms. Brisebois from the National Parole Board of Canada.
Did I understood you correctly and what did you base that statement on?
Mr. Russomanno: I am sorry; I was not here when the representative from Statistics Canada was here.
Senator Wallace: She is with the National Parole Board, by the way.
Mr. Russomanno: Oh, the National Parole Board. I based my statistic on my reading of the previous committee hearings in the House. I will have to find the reference — I think it was on September 7, 2010. I was watching it online at the time and I think that someone mentioned this non-statistic that did not exist.
I will correct myself. It was during Mr. Di Luca's testimony on December 2 when he mentioned there is a statistic that we do not have. Partway through the hearing, someone must have gone out and found a statistic and mentioned to Mr. Di Luca that, actually, we do know that 24 per cent of multiple murderers are released on parole.
I based it on that. I think it came from a member of the committee. I can certainly undertake to lock that down, if I could. I would be happy to know what statistic was mentioned earlier today.
Senator Wallace: The figure that was provided to us by Ms. Brisebois from the National Parole Board was that there are 421 offenders who had more than one murder victim and, of those 421, 95 are currently on full parole.
Mr. Russomanno: I think that is the same statistic; it is about that. When I mentioned 75 per cent, it might have been 74 per cent or 76 per cent; I am not quite sure.
However, I believe that is where it came from because I do recall the member of Parliament who had cited this statistic as saying that he thought it was only 26 out of 421, not actually 26 per cent. He was suggesting that it was a high number of multiple murderers who had gone on parole. Those are the same figures.
Senator Wallace: Thank you for that.
Mr. Gibbs, a question to you. Clause 5 of the bill provides that the periods without eligibility for parole for murder convictions would be served consecutively rather than concurrently, as is now the case. Whether the word ``discounts'' is the right word or not, it would seem to me — and I would ask you to clarify this for me — with the current system, there seems to be little consequence for a second murder.
Someone is convicted of a murder and is subsequently convicted for a second one.
If the sentences are concurrent, there is little consequence in terms of parole eligibility for that second murder. Maybe that is where this comes from. There is a discount or a lack of accountability in terms of time served for that second murder. Could you clarify that for me?
Mr. Gibbs: It is the first time that I have heard the term ``discount.'' If you are convicted of murder, whether second degree or first degree — let us assume it is first degree in this case — you get 25 years' mandatory time before you are eligible for parole. That is plenty of time for a person to do something with his life, to come to terms with what he or she has done, and to present his or her case to the National Parole Board. However, even in those circumstances, it is quite clear that there is no guarantee. The statistics show that they generally serve 28+ years. Today, it is probably more like 30, as these statistics go back to 1999. It is already over a decade ago.
I cannot see the advantage in doubling that time. Unless the person is imprisoned in his or her 20s or 30s, he or she will die in prison. It is like life without parole.
Senator Wallace: Would you not agree that, without Bill C-48, there would be no consequence to the accused for the second murder in terms of time served? The statistics you have given me are in terms of a single murder.
Mr. Gibbs: The person, whether he or she has committed one murder or two murders, will serve at least 25 years. In my view, that is plenty of time. I cannot see the advantage in adding to this. It is a way to introduce more punishment and less hope. If you double that time, or even add 50 per cent, you are looking at 40 years or more.
The Chair: Senator Wallace, Ms. Pate wanted to make a point here.
Senator Wallace: I would like to finish this. From the perspective of the accused or the convicted, that is correct. However, from the perspective of the families of the victims, there seems to be no consequence. There is no additional time that relates to that second murder. Am I missing the point? I have heard what you have said, but I do not know that it addresses the point I am making.
Mr. Gibbs: The victim's family, in this case, would not want parole at all and you cannot blame them. They would not want any eligibility for parole. However, that is not what the law says in Canada. We have a parole system governed by eligibility dates, et cetera.
Senator Wallace: Exactly. There has to be a justice to the system. In the principles of sentencing, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When two murders have occurred, the gravity is greater to society than one.
I am sorry, Ms. Pate. I cut you off earlier.
Ms. Pate: I am anxiously trying to jump in. Senator Wallace, I appreciate the question. I do not think that there is anyone who would hear that and not agree that it will impact the gravity of the offence, depending on the context and depending on what has happened. It does. We are talking about 421 people that the Parole Board has said are in the community on full parole. That is since the provisions were brought in, at least 35 years or possibly longer. We were also talking about people who are very aged now, who were lifers on parole before the end of capital punishment.
Part of the challenge we keep coming back to every time we have discussions about these kinds of bills is perception. Instead of correcting misperceptions, we perpetuate them by saying that these new laws are necessary when, in fact, we know that the people who are posing those risks are not getting out. Clifford Olson, Bernardo and Pickton are all people who were known to the system before they ever killed and who will not likely ever be out on parole. We tried out laws, instead of educating individuals that the impact of a new law like this may be much greater on people who could ultimately contribute to the community. If we want to change our entire system to be based on retribution in individual cases, then we need to have that clear discussion in this country. We are skirting around that discussion by having these kinds of laws introduced. These laws take up a lot of your time, our time, and public resources, with no appreciable difference in the impact except to increase the length of time people are in custody. This includes people who, in another context, might go out and contribute to the community.
Having had the situation of murder in my own family, I do not want it to be a decision that is made in a moment where I cannot step back from that place. I trust that those of you who are making laws, and that those of us who are working in the area, will take a step backwards and examine realistically how to best increase public safety, create the Canada we all want to live in, not decimate all of the other supports and services, and not decimate the very principles that we hold dear in terms of justice and human rights. Canada has had a long-standing, high profile, and well- deserved reputation that is now being decimated internationally. Fundamentally, we must look at why we are pursuing these kinds of provisions if there is not really a need.
Senator Wallace: There are some other thoughts I have but I will let it go.
The Chair: Thank you, Senator Wallace.
[Translation]
Senator Carignan: My question is for all three witnesses. It is somewhat in the same vein as Senator Wallace's. The previous witnesses told us that, statistically, there is no significant difference, in terms of time served, between a person found guilty of one murder and another found guilty of multiple murders; it seems to be practically the same.
Do you not feel uncomfortable with the fact that time served would be the same for someone who kills one person versus someone who kills two or three people? Do you not feel a little uncomfortable with that, aside from the principles you mentioned regarding rehabilitation and what is currently in the act? Your responses were along the lines of ``this is the legal system we have and we like it this way.'' Well, our work is to amend it so that it is in keeping with the values of Canadians.
Essentially, can you tell me whether you are comfortable with the fact that people get the same sentence whether they kill one person or several?
[English]
Ms. Pate: If that is, in fact, what was happening, yes, I would be. However, that is not what is happening. I am most concerned about the continuation of a perception that, in fact, that is what is happening. If, in fact, people serving sentences for multiple murders were getting out at 15 years — say on the judicial review — or at 25 years or 10 years, depending on where they are convicted, that would be a concern.
That is not what is happening, however. There may be very occasional, unusual cases. I can think of one woman and a young person where, as this bill would still allow, the judge can use his or her individual discretion to determine the context in which that happened and the circumstances surrounding that individual, the victim, all of those situations. This bill still allows it.
I mean this in the most respectful way, but my discomfort is that we keep coming back to changing laws when there is not really a need to change. We really need to be bravely and courageously taking on the misinformation that is being perpetuated and, instead of doing processes like these, use the resources to shore up what is needed in the community for victims.
I would love to see resources in place so that when someone is at risk, they do not end up in a place where they end up themselves potentially perpetrating crime, being further victimized or any of those things. We are dangerously close to cutting out many of those services. I am not talking about people who are already criminalized and in prison, but for the entire Canadian population.
I am extremely concerned about this bill being part of a pattern of perpetuating. If anyone could point me to a series of individual whose had committed multiple murders, who are out running around and causing havoc in our streets and putting fear in our hearts, I would be as concerned as the expressions of concern I have heard. I am not suggesting they have come from you or this table. However, there have been now 20 years of lobbies on the Hill with misinformation. I am not surprised that many of you and many of the members of Parliament hear very different stories, but I think the inaccuracy of and lack of evidence found in some of the material coming forward is frightening.
The Chair: Did you want to add something?
Mr. Russomanno: I think Ms. Pate's response is fairly comprehensive. To get back to the previous question, it really does come down to a question of optics when you consider multiple murders. The sentence is for life. We all can understand the nonsense that would be consecutive life sentences. That does not really make much sense.
For example, in a case such as in the United States where you could get life without parole for killing one person, you could argue you are getting a discount for killing two people because you are getting life without parole regardless. Therefore, are you not getting a discount?
That is not really what this is about. There are two stopgaps here. When you are convicted of multiple first-degree murders, we all know that 25 years is the maximum parole ineligibility. However, the fact that you committed two, three or four murders is not lost on the Parole Board appointed by the government. This is what I would suggest informs the reason why people who commit multiple murders are not getting out on parole at the same rate as ones that commit single murders.
At the level of second-degree murder, you have discretion between 10 years and 25 years. Automatically, someone who commits two second-degree murders will not be getting a 10-year period of parole ineligibility because that is the bare minimum. The fact that someone commits a second murder will automatically go into the consideration of the sentencing judge.
There is that stopgap at the level of the sentencing judge, as well as the Parole Board. I had not really had a chance to get to this point earlier. When you are talking about a 50-year period of parole ineligibility, you are giving the judge that opportunity to see 50 years down the road. Who is in a better position to monitor someone, to look at their progress and to see if they are a risk to the community? Is it the judge 50 years before, or is it the Parole Board, appointed by the government and equipped with the tools necessary to evaluate risk to the community? I would think it is the Parole Board and I do not think that there is any reason to doubt the ability of the Parole Board to make those determinations.
[Translation]
Senator Carignan: Judges render their decision once they have heard all of the evidence on the loathsome or abhorrent nature of the murder, the circumstances of the murder, and with full knowledge of the impact on victims.
That does put judges in a privileged position to set a period of ineligibility for parole. Then, 25 years later, the National Parole Board ends up with a murderer on its hands who may be manipulative. Criminologists say that many of these people are highly manipulative. With witnesses, distance and events, perhaps we are not in the best position, 25 years after the fact, to determine the impact a murder may have had.
So do you not believe that judges are in the best position to make these determinations when they decide on parole ineligibility?
Second, you referred to statistics. You say there are 95 individuals who are on full parole. However, how many are on parole, but not fully? I am asking the question with respect to individuals who have reports to produce or who are only paroled over weekends. Perhaps the number is even higher, although 95 is quite high to begin with.
[English]
Ms. Pate: I would agree. Then the question becomes: Why interfere with the provisions that allow for the 15-year review? That is exactly why those provisions were introduced at the time of the abolition of capital punishment. It was done to allow a measured approach. It is a very stringent test that goes back before the judge. It is not just an air of reality as to whether someone might actually be able to go before a jury, in the community where they were convicted, with the victims coming and being able to provide information.
Having sat through a number of those sorts of judicial reviews, I can tell you the judge is looking at the information, as is the jury. I would suggest the individual cannot manipulate the entire jury with victims giving evidence and with the Chief Justice determining whether the matter can even go forward. There are so many steps in place before you get to that.
It strikes me as all the more reason to keep the judicial review function intact. It shores up exactly what you just said in terms of why you would start with saying the judges have something to say.
[Translation]
Senator Carignan: If you do not mind my asking, what is the new issue? When a judge hears the case, you say that he will have everything that comes out in the trial, including the revolting nature of the murder, and he will be able to weigh it all. You also say offenders will have a hard time manipulating everyone. Obviously, offenders cannot change the evidence of things that were done in the past, so what is this new issue? It will be his own behaviour. He can try to convince people that he is no longer a threat to society, it may be quite compelling. It will be in his behaviour. He may be very manipulative. I can tell you that I personally have not known many murderers in my life, but some white collar criminals, like those we were referring to, are highly manipulative. There is a risk that these people can claim to be rehabilitated in order to get out of jail. They may come across as angels all of a sudden.
[English]
Ms. Pate: Fraud is a whole different matter. If we are talking about people who are in for murder, to go an entire life sentence being able to manipulate everyone you come in contact with, I have yet to meet that person. It is possible, hypothetically, that person might exist. However, in my experience, certainly working with young people, men — and for almost the last 20 years, women and girls — you do not see that.
It is difficult to maintain behaviour, unless it is real behaviour, for that period of time. Whether it is anyone in prison — me, you, anyone — if it is not authentic behaviour, you are not likely to see it continue.
Individuals in prison are monitored from the day they come into prison by a whole group of people. I understand the concern. If I did not know anything about the system, I probably would share that concern. Hence, again, my suggestion that we need to correct the misinformation that is out there, not to compound it.
Mr. Russomanno: I have a tremendous amount of confidence in our justice system and in our judges. Sentencing, however, is not simple mathematics. When you are looking at 25 years or 50 years, there is always going to be some limit as to how far ahead a judge is able to look; whether you should stop it at 25 years or 26 years or 24 years or all the way up to 50 years, this is not an exact science.
I would respond to your question first by saying that I do have a tremendous amount of confidence in our judges; that is why I believe in judicial discretion. However, I do think there is a limit. In having that confidence in our judges, I think if this does pass, that this binary 25 years, 50 years or 75 years will not be used that often. It will not be used often because I think our judges will be extremely reluctant to look that far ahead, knowing what they know.
[Translation]
Senator Boisvenu: Thank you for being here today. I agree with you on one point: it is all a question of perspective. I will give you the point of view of a father whose daughter was murdered by a repeat offender, and I will try to be as understanding as I can.
Mr. Russomanno, you say that the public needs education. I have spent six years educating the public because I was a member of an association that educated families about the prison system and the justice system. Let me tell you that the more the public was educated, the more frustrated it got. The more it was educated, the more it understood how lax and lenient the system is, and how everything revolves around the rights of the criminal.
I understand that you are on the other side of the fence. You are on the side of the criminals and you want to protect your business. I address my question to the three of you. We can agree that the Criminal Code and our legislation is not yet perfect in Canada unless you admit that our system is only aiming for perfection. Which bills aimed at providing longer sentences, strengthening the Criminal Code or taking a harsher approach to criminals have you agreed with in the past five years? Which bills have you stood up for in the past five years?
[English]
Ms. Pate: When the Corrections and Conditional Release Act and the Youth Criminal Justice Act were being introduced, there were things we thought could be improved and things that we supported. It did not matter which, there were two different governments introducing at the time, but there were two bills that took corrections in a way that provided impact and inputs for victims, as well as a realistic look at how you provide support for those who are most at risk, youth and adult.
[Translation]
Senator Boisvenu: I am talking about the Criminal Code. The Criminal Code is supposed to provide justice in the sense that serious crimes require more serious sentences. This is the basis of our justice system in Canada. I have no problem with the law. The law provides for a sentence and then we have a prison system that administers the sentence. There, we have all kinds of little ways in which a criminal who has been sentenced to 25 years without any possibility of parole can start to get weekend passes after 10 years. After 15 years, he becomes eligible for parole. People do not know this. When they find out, they wonder whether we have two justice systems in Canada: the sentence handed down by the judge, which is relatively severe, and the prison system that kind of dilutes the impact of the sentences by introducing its own rules into the game.
The Chair: Senator Boisvenu, we are beginning to run short of time.
[English]
I think the fundamental question there was: Have any of you supported any bill that increased sentencing or toughened up sentencing in some way?
[Translation]
Is this a fair summary of your opinion?
Senator Boisvenu: You are even better than I am, Madam Chair.
[English]
Ms. Pate: In the context of the work I have done on violence against women, yes, there have been some around mandatory charging practices, when we could not get police to come when they were called. There are certain examples like that.
Many of us now recognize that unless you change attitudes and educate, you do not actually change behaviour in the system as well. That would be one.
The ones I spoke about, I recognize they do not sound like they may be Criminal Code but they impact on the Criminal Code as well. Those are areas. Believe me that if, in the 27 years I have been doing this, I had seen an impact that would show a benefit, I would have a completely different perspective than I do today.
Mr. Russomanno: With respect to legislation that increases penalties, no, I cannot say — and I am speaking personally — that I support removing judicial discretion because I think that judges get sentencing right. That does not mean I do not support harsh sentences for criminals, especially those that relate to vulnerable members of society — sexual exploitation of children, for example. However, I do not think we need the legislature to tell judges that they have to do this because they already are; that is my personal view.
I do support, as with Ms. Pate, the changes with respect to removing discretion in terms of charging practices and domestic assault. I think that has to do with another vulnerable sector of our society.
In relation to harsher sentences, I think if there were a problem, for example, if we had judiciary that was routinely handing out house arrest or probation for sexual exploitation or serious frauds in the workplace — I can name any category of serious offences — if there was a real issue there, I would support the government bringing those mandatory minimums in. However, that is not a problem, in my view.
I wish to get back to something as well.
The Chair: Bearing in mind that we are running out of time and we still have one supplementary question and one main questioner.
Mr. Russomanno: Okay. On the whole paradigm of rights, I appreciate victims can be extremely frustrated in the criminal justice system, and the criminal justice system cannot make up for the loss that victims feel, but rights are for everyone.
I do not support rights for criminals; the CLA does not support rights for criminals. We are not a lobby group for criminals. We believe in rights for everyone. In our society, that includes people who are charged with crimes. I would not accept that dichotomy of the rights of victims versus the rights of criminals.
The Chair: Senator Wallace has a quick supplementary.
Senator Wallace: Mr. Russomanno, I listened with interest to your passionate statements about judicial discretion and that, somehow, Bill C-48 removes that. Yet I am sure you aware that clause 5 is based upon judicial discretion. Whether periods of parole ineligibility would be considered consecutively or concurrently is based on judicial discretion.
Given all of the positive things you said about the judiciary, and they are the ones to make these decisions, would you not agree that the bill actually addresses that?
Mr. Russomanno: I would certainly agree. I have not criticized this legislation on the basis that it takes away from judicial discretion.
Senator Wallace: I thought you said that specifically.
Mr. Russomanno: No, that was my answer to Senator Boisvenu's question as to whether I support increasing sentences for criminals. I was referring to mandatory minimum sentences and the removal of discretion in those instances.
This act clearly allows the judge the option. In my initial comments, I suggested the giving of discretion might be what saves this legislation from constitutional infirmity. I and the CLA would prefer that it not be binary. I think that is problematic. However, I do not think that this legislation removes discretion.
I have identified other problems I see with it. I think it is a cure with no disease, and that it sends a message about our justice system that I do not think reflects reality. However, I do not think the removal of discretion is a hallmark of this bill.
Senator Wallace: Thank you for clarifying that. That was my understanding.
Mr. Russomanno: I apologize for that.
Senator Baker: I want to thank the witnesses for their knowledgeable input into the bill. Mr. Gibbs is absolutely right in putting into historical context what happened in 1976, and that the provisions which flowed from that decision of the legislature were put there. I was an MP at the time, and we were doing away with the death penalty. Certain provisions had to be put in place in order for that to be publicly saleable.
Let me ask two questions. Mr. Russomanno, you mentioned the Supreme Court of Canada decision in Luxton. Would you not agree with me that the decision at that time, dealt with the code at that time, which stated that the faint- hope clause was not available to someone who committed more than one murder. That was in the Criminal Code. It was not available to such a person. Also in the Criminal Code, as you know, if you were convicted of more than one murder, there was a mandatory 25 years of parole ineligibility, as you mentioned.
The Luxton decision was tried on sections 7 and 12 of the Charter as to whether it was cruel or unusual punishment or somehow violated fundamental justice. Regarding the 25-year mandatory, you were right in saying that the Supreme Court of Canada said one of the reasons it was constitutional was because there was that 15-year review built into the system. However, that only applied to single murders; it would not have applied if it were a multiple murder. If it were a multiple murder, you would not take advantage of the faint-hope clause.
Mr. Russomanno: My understanding of the removal of the faint-hope clause for multiple murders is that change came into effect in 1996 or 1997. I stand to be corrected, as I am going on approximation.
Senator Baker: It came into effect in 1996 or 1997 as subsection 746(2). Prior to that, it was not there.
Mr. Russomanno: Up until that point, that was not available to multiple murderers. I think the Luxton decision predated that change, in which case the Supreme Court of Canada was referring to the availability of faint hope for all convicted murderers.
Senator Baker: In effect, you are saying there is a constitutionality problem with this legislation.
Mr. Russomanno: In conjunction with the removal of the faint-hope clause, the Luxton decision would suggest there might be a problem. Basically, as you said, there was a challenge of the constitutionality of mandatory life sentences with 25 years of parole ineligibility. The Supreme Court of Canada seemed to note that the presence of the faint-hope clause at least gave some attenuation to the harshness of the sentence, much like the R. v. Lyons decision of the Supreme Court of Canada upheld the constitutionality of the dangerous offenders' legislation on the basis that parole was mandated after five or seven years —
Mr. Gibbs: Seven, I believe.
Mr. Russomanno: Thank you. It was then a few years thereafter.
It is the same idea. That might be a concern, in conjunction with removing the faint-hope clause.
The Chair: Senator Baker, Senator Carignan is yearning to put forward a supplementary. Would you mind?
Senator Baker: Absolutely not.
[Translation]
Senator Carignan: With regard to the issue of unusual and disproportionate sentences, you mention the faint hope principle.
In the Ferguson decision in 2008, the Supreme Court provided a test whereby the sentence must be so excessive as to outrage standards of dignity and that it must be disproportionate to the extent that Canadians would find it abhorrent or intolerable.
Do you really believe that Canadians would consider serving sentences consecutively instead of concurrently? Do you really believe that if we conducted a survey among Canadians, that they would find that this is disproportionate, outrageous or intolerable?
[English]
Mr. Russomanno: I will give it a short answer: The majority of Canadians might. That is not really the job of the justice system or the Charter. Frankly, it is not there to comply with the majority of Canadians' views.
Senator Baker: There is subsection 24(2).
Mr. Russomanno: That was my short answer.
Senator Baker: It is subsection 24(2) of the Charter.
Mr. Gibbs: I simply wanted to support what my colleague was saying.
Ms. Pate: I think the issue of intolerability is a contextual one, based on what information the public has. Whether it is our organization, me personally or surveys that have been done, the more information you give the public about context, the more tolerable they find a range of options to be and the less likely they are to demand prison only and norm prison as the response.
Again, it comes down to this: If you ask of anyone, for example, if someone does something wrong, should they go to jail, a lot of people would say ``yes.'' If you said, ``What do you want to achieve by that?'' people will invariably come up with a bunch of other creative options that are about holding someone accountable, reparations, deterring others, and all of the principles we laud and promote in terms of our Criminal Code and our sentencing provisions, in particular.
However, not necessarily will norm prison be the first response. Every piece of research done and, in my experience, even some of the communities that are the most privileged and do not necessarily have a great tolerance for those who are most marginalized have come up with very different responses when given information and when given a range of options.
The Chair: We are advancing rapidly into overtime and Senator Baker has not quite concluded.
Senator Baker: Just one more question and observation. Judges continually have to determine what would shock the conscience of the community or bring the administration of justice into disrepute.
My question is with regard to the objections received from the public in support of this legislation. A lot of the support for this legislation comes from individuals and groups. As Ms. Pate mentioned, Clifford Olson will not likely ever get out on parole. However, Clifford Olson, and everyone else that Ms. Pate mentioned, does have the right, after 25 years, of having a review every two years. In all of the cases, the families of the victims wish to make representation. They are in the same room with Clifford Olson, whose introductory remarks last year were that you would have to be crazy to allow me out on parole.
Is there any procedure that could be put into the code to prevent those sorts of things from happening?
Ms. Pate: Undoubtedly, there would be. However, I always caution against that. The principle that we are all taught when we are learning the law is that the exceptional case should not drive the law. In this case, we could do a great deal more service to shore up the supports for victims to explain that this is a constitutionally protected right for a reason. We can try out situations where the opposite abuses have happened. With regard to the two or three cases where that kind of abuse may occur, I would certainly prefer to see all of those resources go to supporting the victims in not going into that setting to be subjected to that. Maybe make it a closed process for that period.
We want to continue to have the safeguards that Canada is rightfully proud of. I am about to head into the Ashley Smith inquest. Let us talk about what happens when you drop safeguards implicitly, if not explicitly.
Senator Baker: We had a procedure under the faint-hope clause whereby there was a screening process prior to the hearing. There was not a right to a hearing; you had to submit an application to a judge in writing. The judge would then make a determination based upon a balance of probabilities. There was likelihood, or some similar words, that your application would be successful.
Would that not solve a lot of the criticism of the present procedure of having to go through that process every two years?
Ms. Pate: I do not mean to speak for everyone. That is one potential solution; however, we have that already. It is not just a balance. It is a reasonable prospect of success. That is a pretty high standard.
Senator Baker: That is under the faint-hope clause.
Ms. Pate: That is right. We should back up and ask how many people never go before the Parole Board because they do not think they have any possibility of success. That is a number that I suspect the committee does not have, and most politicians and people in justice who are making policy may not know from public safety. There is a huge proportion that never goes before the Parole Board because they do not see themselves as having any possibility of success.
Senator Baker: Yes. However, my question relates to supplanting that procedure into the mandatory provisions of a right to a review every two years.
Ms. Pate: I am sorry, Senator Baker. I did understand. Let me give you an example of a situation I just dealt with.
A woman, whose case we took on a sentence and conviction appeal, won the appeal. However, it would have taken us another six months to get her before the Parole Board. The fact that we were appealing and the fact that she had used force in a manner that we characterize as defensive were used to characterize her as in denial and minimizing her own risk. It is not her who was saying it. It was the likes of me and others who were working on her case. She was a South Asian woman brought in as an email-order bride who very much had her own internalized racism and sexism of what she was and was not entitled to do. In that context, that test would not have saved the situation we were dealing with. Instead, it went through all of our advocates. I do not usually do parole hearings. However, I was going to do it because there was not a reasonable prospect of success. That was not the language being used; however, she presented a risk. The risk was created by these kinds of tests and attitudes and this kind of misinformation that have been created. When we went to the court on appeal, she walked outside the next day. It would have taken us almost another year if we had succeeded then to get her out on parole.
Mr. Russomanno: This question was also raised in the December 2 committee with respect to a paper screening that can be done beforehand for the ``Clifford Olson'' extreme-case category.
The CLA is not necessarily opposed to that kind of pre-screening. I say that with the caveat of all of the context that Ms. Pate has infused here about how resources can be poured into victim support. As well, it is possibly worthwhile to look at the kind of pre-screening that would be less than a full-blown parole hearing for those extreme-type cases. It is certainly possible that this committee could look at that.
Senator Baker: Do you mean to reduce the level from balance of probabilities to some probabilities?
Ms. Pate: That would not have saved the case I am talking about.
Senator Baker: Really?
Ms. Pate: Yes.
The Chair: Thank you very much. We have kept you later than we thought we would. However, we are extremely grateful for your contribution to our work.
(The committee suspended.)
[Translation]
(The committee resumed.)
The Chair: We will resume our study of Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act.
Last but not least this evening, we welcome Sue O'Sullivan, Federal Ombudsman for Victims of Crime.
[English]
Thank you, Ms. O'Sullivan. You have been giving us quite a lot of your time lately. It is not done yet. We are grateful for you to be here this evening. Please go ahead with your opening statement.
[Translation]
Sue O'Sullivan, Federal Ombudsman, Office of the Federal Ombudsman for Victims of Crime: Good evening Madam Chair and members of the committee. Thank you for the opportunity to come before you again today to discuss Bill C- 48, which would provide judges the discretion to order consecutive rather than concurrent parole ineligibility.
As you are aware, the Office of the Federal Ombudsman for Victims of Crime was created in 2007 to help victims of crime across Canada. We do that by assisting victims both on an individual basis, when they call our office with an inquiry or complaint; and collectively, by making recommendations and providing input on important legislation, such as the bill before us today.
[English]
Let me begin by stating our support for Bill C-48 and its intention to provide the option, where appropriate, for judges to specify consecutive, rather than concurrent, parole ineligibility periods. Bill C-48 addresses two specific concerns that victims have raised again and again: The need for accountability for each life taken, and the anxiety and emotional toll that victims face when an offender is granted a parole hearing.
In terms of accountability, the desire to see justice served for the loss of a loved one is common among victims and, I would argue, understandable. In the case of a serial murderer, families of victims want to see that the loss of their loved one's life is considered and valued, and that the offender is held responsible for each life he or she has taken.
You are no doubt aware that when offenders are sentenced to life in our current system, they are not entitled to statutory release. If they are granted parole, they remain for the rest of their lives under the supervision of the Correctional Service of Canada.
An offender's parole ineligibility is not automatically extended based on the number of victims he or she has killed. As a result, there is no clear deterrent or obvious punishment for the taking of six lives instead of one, for example. This is clearly a source of frustration for some victims. We saw this last July when the families of the victims of the offender Robert Pickton expressed their frustration that the 20 additional charges against him would be dropped.
As with any issue, not all victims agree that longer incarceration is the best solution, but each victim I have spoken to agrees on one thing: They never want what happened to them to happen to anyone else. Bill C-48 provides the option, at the judge's discretion, to impose consecutive parole ineligibility periods and ensure the victims and the public in general are protected. This discretion is an essential element of the bill; it provides the ability for a judge to make a decision based on the individual circumstances and in the best interests of all Canadians.
The second concern Bill C-48 addresses is the anxiety and difficulties victims can face in preparing for, and attending, a parole hearing. In November, I attended as an observer the most recent parole hearing for serial killer Clifford Olson. I know we are all familiar with the horrendous crimes he has committed, and I have no wish to give him or those crimes any more attention than they have already received. I do, however, want to speak to the emotional toll that parole hearings like this can have on victims of crime.
I imagine you have all followed the issue in the media, to some extent. Clearly, based on the offender's comments to the victims of crime, he has no remorse for what he has done or compassion for the loss his victims' families face. Regardless, he is currently entitled to apply for parole every two years, which means the families of his victims have to face, again, their devastating loss.
In speaking with Sharon Rosenfeldt, these hearings can be very difficult. Some victims choose not to participate in parole hearings. However, for those who do, preparing victim impact statements and sitting in the same room with the offender who stole the life of your son or daughter can make aging wounds fresh again.
The impact of that hearing is not limited to just the day or two the Parole Board meets and makes its decision. It comes years in advance when victims know that an offender's parole ineligibility period is coming to an end. It comes months in advance when the victims are advised that the offender will be having a hearing and they need to prepare. It continues after the hearing as families try to continue to heal. These hearings involve time, costs and most often travel for victims. For those who might be unwell or have medical issues, this can be especially challenging.
Clearly, our justice system must be fair to all parties involved. I am not suggesting that offenders should never be eligible for parole but, in cases like these, Bill C-48 would give judges an additional tool to help ensure that victims are not subjected to this process without reason.
While I support this bill in its current form, I would like to make one small recommendation for consideration in relation to this. My understanding is that, under Bill C-48, judges who choose to impose or not to impose consecutive ineligibility periods must provide the reasons for their decision orally or in writing. While I am aware that these decisions become a matter of public record, I would certainly leave this to the experts to discuss, but I would recommend that this be amended to ensure that victims are provided the explicit right to this information should they desire it.
[Translation]
In conclusion, it is my view that Bill C-48 will have a positive impact on victims of crime. Providing judges with the discretion to apply consecutive, rather than concurrent parole ineligibility periods will help ensure accountability for each life lost and, where appropriate, will delay and in some cases prevent the trauma and devastation victims experience when faced with parole hearings.
[English]
Victims deserve a voice in the criminal justice system and I hope I have successfully helped in bringing that voice to you for consideration here today. I would be happy to answer any questions you might have.
Senator Wallace: What you have to say is always very useful to us.
I believe what you said covers this. However, I found it interesting, particularly after following the witnesses that appeared just before you. Other witnesses thought that the benefits of Bill C-48 were based upon a mere perception and misunderstanding by those who would be proponents of this bill, as to how the parole system works, the significance of periods of parole ineligibility, et cetera.
Therefore, it seemed as if the proponents of the bill are not basing their support of it on anything real. If people really understood the parole system, they would not be supporting this type of legislation. It really does not provide any real, tangible benefits or improvements to our criminal justice system. I found that rather shocking.
I do not read the bill to come to that conclusion — that it somehow is based on nothing more than retribution, that that is pretty well it. What would your comment be on that?
Ms. O'Sullivan: If I could quote Priscilla de Villiers, who we are talking about here are ``the worst of the worst.'' We are talking about people who have committed multiple homicides. Interestingly, Clifford Olson at his hearing commented on the fact that the reason he is here — he knows he is not going to be released — is because he has a right to be.
I tried, in the brief time that I have, to express that we are talking about people who have committed multiple murders. We are talking about not having to have those victims' families go to parole hearings when they are not being released, to go through the trauma — and it is not just about the day of the parole hearing.
I can tell you in speaking to people who have lived, been involved in and become iconic Canadian voices for victims in this country, they know very well the parole system and the issues that go with that. Again, I keep in mind there is the discretion left with the judge — we are talking about the worst of the worst here. It is a small percentage, according to the data I have.
I realize you have had Statistics Canada here; for 95 per cent of the people incarcerated for homicide, it is one victim, so we are talking about a very small percentage. We are talking about not having to have those families relive and go through all these periods when we are talking about this very small percentage of people who have committed those multiple homicides.
Senator Wallace: Ms. O'Sullivan, I know you are aware of this; under the Criminal Code, the principles of sentencing are well established in section 718. Those principles require sentences to be proportionate to the gravity of the offences and the degree of responsibility of the offender.
Would you care to comment as to whether Bill C-48 satisfies those principles — that it relates to the gravity of the offence and the degree of responsibility of the offender?
Ms. O'Sullivan: Yes. Again, I am here to be a voice for victims and their families that I have talked to. Speaking of people who have committed multiple homicides, they are talking about the fact that they should not have to go through these parole hearings. They should not have to relive and deal with all the fallout from going to these hearings.
There is still discretion left with the judge with this legislation. They have to articulate their reasons, but they still have that ability to have that discretion.
I can also tell that you that many of the victims I speak to who have lost family members to homicide said that, often, people come to the table and say they come to the table with a voice because they are vengeful or want retribution. They actually comment on the fact that is not what they want.
I know I have been before you previously and talked about the fact that many of the victims that have offenders who are in prison are looking for information to see how they are doing. That is in relation to the majority of offenders.
What we are talking about here is that very small percentage — the worst of the worst. These are people who will be there for a long period of time and potentially longer.
I would answer your question and say, no, I think the victims do understand the system, do understand these people have taken more than one life. Some of the comments in here as well — is it one life, two lives, three lives, life in prison — there is some deterrence if you take more than one life.
Senator Wallace: And the sentencing reflects the gravity of the offences — two murders, multiple murders, it does not get much worse than that in this society.
Senator Baker: I would like to thank the witness and comment that she does an excellent job before these committees. She is very busy before these committees in Parliament.
You mentioned Clifford Olson, the every two-year review that is mandated or is mandatory, if he so wishes. We have heard from several witnesses who say the same thing as you do, that here is a case of someone who will likely never receive parole, like a great many other persons we know who are in prison who will not. However, they go through this procedure every two years and subject the families to this process.
It should not be necessary to go through this. Everyone agrees with you on that and, of course, this legislation will not solve that problem. It will perhaps for some of the applications or some of the judgments of the trial judge, for a small number of cases, but you are left with all of these other cases.
We were wondering if there should be a provision in the law, similar to what there is or was with the faint-hope clause, section 745.6, which said that the person who wishes to avail of this early parole would make an application to a judge first, and the judge would have to determine that, on a balance of probabilities, there is a reasonable prospect the application will succeed before they are permitted to go before the Parole Board.
In cases like this, where there is not any hope for parole anyway, should there be a screening process whereby a judge will comment and pass judgment on whether there is a reasonable likelihood that the parole application will be successful? Have you given any thought to something like that?
Ms. O'Sullivan: I think there are many issues on the table that could be done. I would like the opportunity to have more dialogue with victims around that.
I can say, if I could use one example, some of the needs when it comes to information for victims about offenders in federal custody. As you know, I have asked to speak on Bill C-39, which speaks to some of the information and needs of victims in relation to parole hearings and information about that. Frankly, I had not actually been looking at that issue in relation to this bill.
Senator Baker: The previous witnesses before the committee said that the standard was too high — that is what I got from their testimony; that a balance of probabilities, that there is a reasonable prospect, would be too harsh and would therefore cancel out a possibility of certain people getting before the Parole Board.
Of course, that is easily solved by just changing the standard. In other words, you change the level of judgment, of proof that you have to give to the judge. It could be adjusted. If you do think about it in the future, let us know.
[Translation]
Senator Chaput: I was pleased to hear you say that Bill C-48 will have a positive impact on victims of crime.
You also mentioned that victims deserve a voice in the criminal justice system.
I totally agree with you. As much as possible, we should prevent the trauma and devastation victims experience when facing parole hearings.
What do you think about the idea of including that in the victim impact statement as an element judges must take into account when considering parole ineligibility?
In your view, should that element be included in a judge's decision?
[English]
Ms. O'Sullivan: Any opportunity for victims to participate in the system and to have a voice is a good thing, absolutely.
[Translation]
Senator Chaput: Is that something you would support? Do you think that is a good idea?
[English]
Ms. O'Sullivan: Yes.
[Translation]
Senator Carignan: It is interesting to hear first from lawyers and then from victims and people who represent them. From time to time that allows us to highlight a number of elements.
We heard Mr. Russomanno, from the Criminal Lawyers' Association, often use the term ``right.'' And we often heard you use the word ``accountability.''
Do you find that the bill goes far enough in making offenders accountable? And more generally, do you find that the Criminal Code does enough in terms of offender accountability?
[English]
Ms. O'Sullivan: I think there are a tremendous number of issues out there in relation to accountability. In this legislation tenet, we are speaking about the need for accountability for each life taken. We are talking about the anxiety and emotional toll that victims and their families go through when an offender is granted a parole hearing.
I was interested to hear you use the word ``rights'' because that is something that we need to talk about on a national level. You said that you have heard both the defence bar and the lawyers speaking about offenders' rights. Of course, they have rights. We must respect that. When it comes to victims, however, the words we hear are ``we should,'' ``we may,'' ``we should consider.'' We do not hear that ``the victims have a right to have.'' These are the words that we must start hearing when it comes to victims. They have a right to information, a right to be part of the process and a right to be heard. The discussions we should be having are around victims' rights as well. I thank you for using that word. Too often, victims in the criminal justice system rarely hear that. I know we are talking about the other end of the system here, but it is about the fact that they have a right to participate and have their voice heard. We have heard even some of the suggestions coming up here.
Regarding some of the frustrations, I will use one example, namely, the ability to have a victim statement at a parole hearing. We talked about communication. First, a victim attending at a parole hearing is a policy, not a right. Where is the victims' right to attend the parole hearing? They are allowed to attend them through policy, not through a right. I will use that as a couple of minor examples. I will speak to some of the issues that we deal with, for example, with the victim statement. They will get a victim statement. Their victim statement must be prepared. The offender gets it ahead of time and has an opportunity to go through it. Victims may even get it back but they cannot say things in the statement because it has been redacted in some cases. I am using those as examples to answer your question to say that there are many areas that we want to look at when it comes to needs for victims within the criminal justice and the corrections system.
[Translation]
Senator Carignan: In much the same vein, with regards to victims' rights, have you also considered using the Charter to assert some of those rights? The rights of offenders cannot override those of victims. Section 7 of the Canadian Charter of Rights and Freedoms states that:
Everyone has the right to life, liberty and security of the person. . .
Victims also have the right to security and life. Have you begun to study and look into using section 7 of the Charter, for example, in order to positively assert the rights of victims?
[English]
Ms. O'Sullivan: Absolutely, when it comes to looking at priorities from our office in terms of having this dialogue.
In our city, we have some vocal people. Professor Irvin Waller just released his book on victims' rights. I have been having dialogue as well internationally with Victim Support Europe, as well as Scotland, England and Wales. I will be attending an international conference in May to talk about it. They are developing a manifesto. They are ahead of us in many ways about where they are in terms of having this discussion. This is an issue that many people in Canada are talking about.
We were talking here today about people who have committed multiple murders. From across this country, without a doubt there is not one family or victim to whom I speak that does not talk about the frustration of why they cannot access certain things or have certain information. They understand that, in certain cases, it is about balance, but right now the balance seems to be in terms of the offenders rather than in terms of the victims. It is about this rebalance and respecting both the offender and the victim's needs in this. Right now, we need to rebalance.
The Chair: Ms. O'Sullivan, I have a question about something that has been nibbling away in the back of my mind. I should have asked the Parole Board representative but I did not, so I will ask you because I think you understand the system.
Does not the Parole Board have the power to say, after a hearing, when parole is denied, that an offender cannot apply again within two years and will have to wait a longer period, or is that just a figment of my imagination?
Ms. O'Sullivan: I have Mr. Théorêt behind me here — at least, he was here.
The Chair: If you do not know, that is fine. Obviously, I do not know either.
Ms. O'Sullivan: I am not sure. Here he is. He is my ex-Correctional Service of Canada person.
The Chair: Could you please sit down and identify yourself, sir?
Ms. O'Sullivan: He is from my office.
The Chair: He is from the Office of the Federal Ombudsman for Victims of Crime.
Louis Théorêt, Director, Office of the Federal Ombudsman for Victims of Crime: I am from the ombudsman's office.
The Chair: My question was vague, based on only the most fragmentary sort of echo of a recollection in my mind. I have this vague niggling that the Parole Board has the power, once it has refused parole to someone, to say that that person may not come back again within two years and will have to wait a longer period of time. Am I making that up?
Mr. Théorêt: They have the right to appear in two years.
The Chair: And the Parole Board cannot lengthen that period?
Mr. Théorêt: There are certain conditions. However, by and large, they have the right to appear every two years.
The Chair: So much for my figments of imagination. I will try to track down whatever it was that I was in fact thinking of. I will enlighten committee members if it seems pertinent.
Thank you very much, Ms. O'Sullivan. It is always helpful to us to have you with us. We will see you again tomorrow afternoon. I hope have you a good night. We will look forward to seeing you tomorrow.
We shall meet again tomorrow morning at 10:30 a.m., at which time we shall proceed to clause-by-clause consideration of Bill C-48.
(The committee adjourned.)