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