Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 17 - Evidence


OTTAWA, Thursday, June 8, 2000

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-247, to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences), met this day at 10:53 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, today we begin our consideration of Bill C-247, to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences).

This bill was referred to the committee by the Senate after it received second reading on Thursday, May 18, 2000, less than six sitting days ago. As you know, the committee's general practice is to deal with private senators' and private members' bills in the approximate order that we receive them from the Senate. In this case, however, a number of circumstances, including an offer by Senator Cools to delay consideration of her bill, Bill S-9, have allowed us to begin consideration of this bill earlier than expected.

The legislative history of Bill C-247 goes back to 1996. Previous versions of related legislation were introduced in the Commons at different times from that date. During the last Parliament, however, these bills were dropped from the Commons Order Paper after a single day's debate.

After the 1997 election, the bill, then numbered C-251, was massively modified, both in committee and at report stage. During the current session, Commons Standing Order 86.1, which under certain circumstances provides for the reinstatement of a private member's bill after prorogation, allowed the bill to pass through all stages in the Commons on a single day.

To begin our consideration of the bill today, we have Ms Albina Guarnieri, the Member of Parliament for Mississauga East and the sponsor of the bill. Ms Guarnieri was first elected to the Commons in 1988 and has been re-elected in two general elections since then.

Ms Guarnieri, I invite to you give us your opening remarks on the bill and perhaps to introduce your companions.

[Translation]

Ms. Albina Guarnieri, Member of Parliament, Sponsor of the Bill: I would like to begin by thanking the members of the committee for being present today.

Madam Chair, I should like to begin by thanking members of the committee for taking the time to consider my bill amid all the other bills that are currently before you. As well, I must thank Senator Anne Cools for sponsoring my bill and for all her wisdom and efforts on my behalf. I am also grateful to my seconder, Senator Nick Taylor, who was kind enough to second the bill. It would be remiss of me not to thank the gracious Senator Di Nino, who has played a very non-partisan role in supporting my bill, as well as many others of alternative political stripes who have been so supportive over the past many months.

Honourable senators, with your permission, in order to provide senators with the best precise answers, I am joined at the table by Scott Newark, a former Crown prosecutor, executive director of the Canadian Police Association, now acting as special counsel for the newly created office, Victims of Violence, recently established by the Government of Ontario, and Mr. Gerald Chipeur, who was good enough to fly in from Calgary on one day's notice. He is a constitutional lawyer and partner with the firm Fraser Milner Casgrain. Mr. Chipeur is currently arguing a number of cases before the Supreme Court, including the question of prisoner voting rights and university academic freedom.

Madam Chair, before I get into the substance of my text, I would also like to mention that there are individuals in the room who are here to support this initiative, and some of them need absolutely no introduction. Two of my colleagues are in the room, John Reynolds and Chuck Cadman, and they have asked me to let it be known that they are more than willing to make representation if you choose to call upon them.

The Chairman: I believe Mr. MacKay has just joined us as well.

Ms Guarnieri: Thank you, Peter, for coming. I also see people from the office of Victims of Crime, Victims of Violence, the Toronto Police Association, the Police Association of Ontario, the Ottawa-Carleton Police, and the CPA. I am sure I have forgotten someone in this august group, so please forgive me if I have left someone out.

It has now been four years since I first introduced Bill C-247, a bill that seeks to end automatic concurrent sentencing for multiple murderers and rapists.

This bill is a response to the reality that Canadians see all too frequently and that victims of crime and their families suffer all too painfully. It is the reality that serial killers are guaranteed that a second, third or eleventh murder will not delay their parole eligibility date. It is the reality that serial sex offenders can also count on getting concurrent sentences that ignore the extent of their crimes despite so-called rules of thumb that are in fact almost never applied.

During the life of this bill, I have been contacted by many Canadians who have experienced the full injustice of the courts. I have heard from families devastated by the loss of a child and by the fact that concurrent sentencing has robbed them of any sense of justice. I have heard from women who have gone through the emotional wringer of a sexual assault trial to find that the offender has received not a single day of added jail time for the crime they personally endured.

Currently, the vast majority of sex offenders in federal prisons are in fact multiple offenders who have benefited from concurrent or merged sentences and who have left a trail of injustice and tragedy across this country, affecting many thousands of victims.

During the debates in the Senate, I took care to study the remarks of honourable senators, and I will attempt to address the key considerations in my brief remarks, starting first with the notion of vengeance and the suggestion that this bill is somehow not consistent with the principles of sentencing.

In his book on the general principles of sentencing, noted defence lawyer Clayton Ruby sets out the difference between retribution in the criminal context and vengeance. He says:

The Supreme Court of Canada suggests that retribution is the unifying principle of criminal law that offers the essential conceptual link between the "attribution of criminal liability and the imposition of criminal sanctions."

Having said that, the Court recognizes the need to clarify the meaning of retribution:

Retribution in a criminal context [in contrast to vengeance] represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint, retribution requires the imposition of a just and appropriate punishment and nothing more.

Madam Chair, I believe that you will find that my bill conforms to that principle of restraint while delivering a more just and appropriate punishment than the current law.

One case in point: just two months ago, on April 8, in North Bay, Gregory Crick was found guilty of two murders. Mr. Crick was found to have murdered Louis Gauthier back in April 1996. A witness to that murder went to the police. Gregory Crick proceeded to murder that witness in retaliation. However, when he was finally sentenced, not one day could be added to Mr. Crick's parole ineligibility for the murder of that witness.

The first two principles of sentencing, which are often recited, require judges to denounce harmful conduct and to defer the offender or other persons from committing further offences. The current law did not allow the judge to meet that standard in the Crick case.

If the judge had the provisions in Bill C-247 available, he could have responded to the vengeful and murderous act of Mr. Crick with an additional term of parole ineligibility that would be sufficient to satisfy the principles of deterrence and denunciation. The bill is not about vengeance. It is about proportionality and fairness within our principles of sentencing.

Currently, a judge in a second-degree murder case can set parole ineligibility within the range of 10 to 25 years. My bill would simply extend the same kind of discretion to all cases involving multiple murders. For instance, in first-degree multiple murder cases, a judge could set a parole ineligibility period within the range of 25 to 50 years.

Last summer, there was one particular case where the Crown actually tried to delay sentencing in the hope that the changes I am pursuing might be rapidly passed. It was the case, as all of you will recall, of Adrian Kinkead, who was tried and convicted of the brutal murderers of Marsha and Tammy Ottey in Scarborough, a process that took three and one half years.

Mr. Kinkead was given a mandatory life sentence with no parole for 25 years. However, Mr. Kinkead was already under a life sentence with the same parole ineligibility, after being convicted of a completely unrelated murder. As such, the murders of the Ottey sisters could have no bearing on Kinkead's parole ineligibility date.

The Crown prosecutor in the case, Robert Clark, asked the judge to delay sentencing until the bill before you today could be passed. His stated intent was to permit the judge to extend the period of parole ineligibility to reflect these additional murders.

Bill C-247, of course, has not passed, and the net result of Mr. Kinkead's conviction for these two murders is that not one single day will be added to his existing sentence.

I ask you, what principle of sentencing is being served by such a meaningless result? Why should families of victims view such sentences as anything other than a mockery to any notion of justice? No wonder public confidence in our justice system has been eroded by such outcomes. I ask you if this is the best of which we are capable.

Would this bill violate a principle of sentencing? I ask you to look at those principles one by one, and I think you will find that the current law fails four, if not five, principles in respect of the treatment of multiple murderers. It fails to denounce harmful conduct, such as the murders of the Ottey sisters. It fails utterly to provide any deterrence to the murder of a witness, as in the Crick case. It fails to separate offenders from society where necessary, causing additional people to be harmed by paroled murderers who are statistically proven to be 10,000 per cent more likely to kill than the average Canadian. It fails to promote any sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community as crimes against many victims are rendered irrelevant to the sentence.

Moreover, I would argue that the current law even fails to assist in rehabilitating offenders, as multiple murderers and serial rapists are given a very clear message that the number of past victims does not matter, so why should the number of future victims matter, either?

No principle of sentencing is served by maintaining the status quo in terms of the sentencing of multiple murderers and rapists. I would argue that my bill performs better in terms of denunciation of harmful conduct, deterrence, public safety, acknowledgement of harm, and even rehabilitation.

I do not accept that there is any violation of the principles of sentencing. However, would a sentence of longer than 25 years without parole violate the Constitution, as some would argue? I can tell you that the only constitutional lawyer who appeared before the Commons committee, and I am privileged to have him sitting here today, offered his legal opinion that my bill was constitutional even when it called for mandatory consecutive sentencing. You will recall that the government itself brought in mandatory consecutive sentencing for firearms offences.

In its current form, with extensive judicial discretion and no mandatory penalties, I believe that constitutional objections are rapidly becoming arguments of last resort.

One last argument that I would like to address is the exhausted notion that life is life -- that a life sentence means just that. The fact is that multiple murderers are released into the community on an average six years after they are eligible for parole, and some within a year of their eligibility.

A monthly visit to a parole officer hardly compares with prison, certainly not in terms of public safety, as Wendy Carroll of Mississauga learned. She is still recovering from having her throat slashed and being left for dead by two paroled multiple murderers just 10 minutes away from my home. They were on life sentences, but they were free and they did try to kill again.

Life only means life for the victims of these offenders.

The term of parole ineligibility is the true measure of any sentence. It is the only certain period that must be served. It is the only definite period during which the public is protected from further offences. It is the only definite period when victims' families can get on with their lives without fearing early parole.

Honourable senators, it is more than clear from polling data and from the vote of their elected representatives that Canadians broadly recognize the importance of consecutive sentencing in terms of delivering justice and improving their own safety. In fact, 90 per cent of Canadians polled by Pollara supported mandatory consecutive sentencing for multiple murderers and rapists with none of the judicial discretion contained currently in Bill C-247. Their elected representatives in the House of Commons supported the current amended bill by margins as large as four to one.

In the case of consecutive sentencing for sexual assault, 92 per cent of women polled supported this concept on a mandatory basis. Bill C-247 does not go that far. It restores the so-called rule of thumb that consecutive sentences would apply in the case of serial rapists. At present, that thumb is broken. Whether it is the Rohipnol rapist with 21 victims, or Graham James, who victimized boys over a 14-year period, concurrent sentencing is the standard penalty with extremely rare exceptions.

At the very least, we must restore consecutive sentencing as the standard in multiple sexual assault cases. As I mentioned earlier, the bulk of offenders incarcerated for sexual assault are in fact multiple offenders with concurrent terms, according to Corrections Canada testimony. As it is virtually impossible to assault more than one woman in a single continuous act, we know that the so-called rule of thumb that would impose consecutive sentences for separate crimes of sexual assault is not in force and that concurrent sentencing is, indeed, the norm.

When a judge determines that a crime of sexual assault is dissolved in a broader sentence, the victim is owed at least oral and written reasons as to why the offences against her do not result in any incremental prison time. My bill would require those reasons.

Recently, I was sent a judge's extensive reasons for his decision in relation to a case of a heroin addict who did not get promoted within the ranks of a chartered bank. I think that rape victims deserve no less respect.

To sum up, let me read you the thoughts of Mr. Justice MacKeigan of the Nova Scotia Court of Appeal:

A so-called concurrent sentence does not sentence the convicted person to a term of any imprisonment at all, since it does not require him to serve a single day of imprisonment. A judge, in imposing a concurrent sentence, is not carrying out his duty.

A concurrent sentence is no sentence at all. That is what Mr. Justice MacKeigan has said. I put it to you that not giving a sentence for crimes as brutal as murder and rape is no justice at all. Our justice system must do better for Canadians.

I would ask you to consider what your response might have been were it the case that Bill C-247 was the existing law and a bill was proposed which said that multiple murderers should be guaranteed parole at 25 years, no matter how many people they have killed, and that serial rapists should not generally be sentenced to consecutive terms for each victim but serve not much more than the penalty for one single offence. I do not think that anyone in the House of Commons would dare to propose the status quo to Canadians in such clear and precise terms. Why then would we defend it now?

The Chairman: Thank you.

Senator Di Nino: Just as a question of process, are we hearing any other witnesses?

The Chairman: They are here to support Ms Guarnieri.

Ms Guarnieri: I believe you wanted to get at the heart of the matter, so I thought it would be a more substantive discussion if I were flanked by my lawyers.

Senator Di Nino: Thank you.

Senator Cools: Especially when the concerns are coming from lawyers.

Senator Joyal: Ms Guarnieri, it is a pleasure to welcome you here this morning. Having myself been in the other place for a long time and having carried on some fights regarding fundamental principles, I totally admire your dedication to the issue you are pursuing.

That being so, I would like to do a mise au point and set the record straight. We are a legislative house of the Parliament of Canada. As you know, the Parliament of Canada is composed of two houses, the House of Commons and the Senate. Both Houses are equal in their rights and privileges. That is the way the Constitution was drafted 133 years ago.

When we exercise our legislative duty, we exercise it as a house that must scrutinize legislation and balance the government's current overall policy objectives with what we consider to be the fundamental principles related to minority rights and sectional interests, to quote the Fathers of Confederation. I should say the Mothers of Confederation, to put it in currently political terms.

I can tell you quite frankly that I personally resent being told that since I am not elected, I should just close my eyes and rubber stamp everything that comes from the other place. I especially resent being told that when the life and freedoms of citizens are at stake.

Last year, we had Bill C-40, the extradition bill. In that bill there was a section, which, in my opinion, dealt with the death penalty. This fact was not even mentioned in the other place. When the bill came here, we debated it for two-and-one-half months in this committee and in the whole Senate. As you know, last week the Supreme Court of Canada addressed the very issue that we debated here: the right of Canadian citizens to benefit from the Charter of Rights and Freedoms before a minister of the Crown gives authorization to extradite that person to a country where the death penalty is applied.

This was in front of the nine justices. We debated it for two and a half months.

According to public perception, we should just rubber stamp what comes from the other place. However, we must assume our duty on behalf of fair and democratic debate in Canada. Democracy is not only about elections. Democracy is about real debate. When an issue as important as the one that you raise must be enshrined through legislation, it deserves a fair debate.

When I say a fair debate, it means a debate that involves all aspects of the legislation, both negative and positive, because both sides always exist. This house of Parliament is concerned about the constitutionality of legislation. When we believe that the constitutionality of legislation is at stake, we can veto it. This is the law of the land.

The Senate has used its veto in the past, such as on the issue of abortion, because we thought that that was a fundamental issue. It dealt with life.

When a bill like this one is brought to us, our primary concern is its constitutionality. To rubber stamp it in 24 hours, as we have been told, would break the oath I took when I was sworn in as a senator. Under the Constitution of Canada, I have a job to do. To me, this is a very important point.

Senator Cools: I am not following. Who has said that this bill should be rubber stamped in 24 hours?

Senator Joyal: I am echoing the press that has surrounded our debate today.

Senator Cools: Chairman, as a point of order, perhaps the senator should be a little bit more forthright with us and put that on the record so that we all know what he is talking about.

To my knowledge, I have not been told by anyone around this table or outside of this chamber that this bill is to be passed without debate in 24 hours. I find that Ms Guarnieri has been extremely patient.

Senator Joyal: I am referring to an article in the Ottawa Citizen, June 7.

That being said, I am totally open to debating the bill. You believe that the constitutionality of the bill is assured and safe. Can you or the witnesses who are assisting you tell us why you have concluded that the bill is constitutional?

Ms Guarnieri: Before I pass the floor over to my erudite colleagues here, thank you very much for your initial kind words, which were very appreciated.

I have no doubt that the Senate does valuable work. I would be the first person to champion free debate on the issues. In fact, I think you have probably seen me quoted in the press recently as saying that, as members of Parliament, we do not want to be mere voting machines. We want to be able to understand the legislation we are passing. Like you, I am looking forward to erudite conversation in this chamber. I am hoping that my bill will certainly pass, based on the merits of the arguments that will be made before you.

With respect to the article that you refer to, I was expressing a little bit of impatience at process and the fear that a pending election might kill my bill. It has been a long time in coming, as the chairman pointed out. This bill has been around for four years. Hopefully, by now, people have had time to assess some of its merits.

Rather than talk around the bill, I too am eager to address its substance. I know that you are not going to learn too much about the Constitution from me when I have constitutional experts sitting beside me, but I would like to stress that the chamber and the Senate chose to pass the gun control legislation, and I voted for that. After we voted, I subsequently learned that even with a toy pistol we chose to take away judiciary discretion. When I queried that, saying that many of the arguments that were made against my bill were based on the fact that I was advocating mandatory minimum consecutive sentencing, they kept saying that judicial discretion is supreme. I pointed out to them that in gun control we did not seem to have a problem about Charter challenges when it came to taking away judicial discretion.

The response I got from the minister through her officials was that we wanted to send a strong message that even with a toy pistol we will not tolerate offences with firearms. I asked if, under that legislation, a person robbed a McDonald's restaurant 30 times, would the judge have to impose a 30-year sentence? That seemed a bit extreme to me. I was thinking of Victor Hugo's Les Misérables, where someone steals bread and gets sentenced to 30 years in jail. The answer, unequivocally, was that yes, that person would get 30 years because judicial discretion would have been removed.

I would maintain that murder should be equally weighted and significant in the eyes of the legislature. Why would we not send a strong message that a second, third, or eleventh victim would not be tolerated?

Having said that, the bill before you actually includes judicial discretion and gives the presiding judge, who listens to all the mitigating factors, the decision as to which sentence is appropriate.

I think you have heard enough from me. Mr. Chipeur, would you like to respond, since you were the constitutional lawyer who expressed the opinion that my bill in its original form was constitutional?

Gerald D. Chipeur, constitutional lawyer: Thank you very much, committee members.

In the House of Commons and in this chamber, I have reviewed the proposed legislation. I am of the opinion that it is consistent with the Charter. I have, in particular, looked at section 12, which is the cruel and unusual punishment provisions of the Charter of Rights and Freedoms.

I hold this view because the original legislation did not provide for judicial discretion but required a mandatory consecutive sentence in certain circumstances. For example, look at the case of R. v. Smith (1987), a decision of the Supreme Court of Canada. In that case, Chief Justice Lamer and others upheld the mandatory 25 years without the parole provisions that currently apply to those who are sentenced to life in prison in the case of murder in the first degree.

In that case, the current Chief Justice, Justice McLachlin at the time, was of the view that there was a problem with a mandatory 25 years without parole because it took away the judge's discretion.

Today, we do not have to worry about whether I was right in my first view with respect to the initial legislation because the legislation before you today does, in fact, give the judge complete discretion to impose a consecutive sentence in murder and sexual assault, the cases that are in question here.

I will highlight a few cases for you. I will not read them for you but I will highlight what they stand for. You can look at them yourself and see if you agree with me.

The first is the R. v. Smith, a 1987 decision of the Supreme Court of Canada. In that case, Chief Justice McLachlin said that, in her view, in the case of murder, and in the case of life imprisonment, the life imprisonment part was not the problem. The problem lay in the question of the mandatory minimum.

Justice McLachlin was of the view, though in dissent, that you needed to leave the discretion with the judge. In fact, in this case, the discretion is left with the judge. Thus, even if the Supreme Court changed its opinion because it has a different Chief Justice and a different composition, there is little risk, in my view, that it would strike down this legislation.

I should like to highlight three or four cases, all of which have principles that apply to the bill before you.

The first is the case of the Queen v. Mitchell, a 1987 case. In that case, the death penalty was referred to. The courts indicated that under the bill of rights the death penalty was not found to be cruel and unusual punishment. They then said, if that is not cruel and unusual punishment, how could a mandatory minimum parole time be a problem under section 12 of the Charter?

The case of the Queen v. Parsons, a 1988 decision, set forth the principle that it is appropriate for Parliament to increase the minimum or mandatory sentences where an offence is repeated. The repetition of the offence increases the weight or gravity of the issue that Parliament may address.

Remember that we are not dealing with changing the initial sentence, which is life in prison. The only question is whether the parole board or the judge will make the decision. Parliament is being asked to take the discretion from the parole board and give that discretion to a judge -- a judge who is rigorously qualified, appointed by the government on the advice of individuals who are qualified to judge these kinds of questions.

The judge, when he or she is faced with this issue, will then have to take all of the factors into account and make a decision with respect to the minimum amount of time that that individual will stay in prison.

Currently, that decision is made by the parole board. A parole board could keep a person in prison for 50 years, subject to judicial review. Parliament in this case is considering legislation that would allow a judge to make that decision, and certainly that is consistent with Chief Justice McLachlin's views in Smith, that that discretion should remain with the court.

The other cases that are important are the Queen v. Goltz, a 1991 decision of the Supreme Court of Canada, and that decision reaffirmed the general test.

The general test that the Supreme Court of Canada will apply to this bill if it becomes law is whether it is so grossly disproportionate as to outrage decency.

If honourable senators are convinced that requiring a judge to provide reasons when they do not impose consecutive sentences is so grossly disproportionate with the crime in question, be it murder or sexual assault, so as to outrage decency, then this committee should recommend that this bill not be passed.

If you are of the view that it would not be so grossly disproportionate that it would outrage decency, then there is no constitutional question here. Then it becomes merely a question of public policy.

I would go further than Senator Joyal and say that this committee is free to say, as a matter of public policy, that this is not good, even if you are satisfied that it is constitutional. You do not have to make decisions based on its constitutionality.

You are a constitutional, legislative and judicial affairs committee. If, from a question of judicial policy you think this is bad policy, then certainly you can recommend against it. Obviously, Ms Guarnieri is suggesting that leaving discretion to a judge rather than a member of the parole board is good judicial policy.

Another case is the Queen v. Brown, from 1993. That is an important case because it struck down a mandatory minimum on the grounds that it was not proportionate. One must then ask, is this a case like the Queen v. Brown? I am convinced that it is not. The Queen v. Brown was a case of a first-time, youthful offender. Individuals can face a mandatory minimum where there is no history of crime.

In this case, obviously, there will be at least one previous serious felony, a serious affront to the bodily integrity of another citizen. The citizen would have been in a position where they were going to be killed or seriously sexually assaulted, and, if there are further events, a judge has the discretion to increase the sentence.

In any case, Ms Guarnieri's bill does not ask for a mandatory minimum, it just gives the judge the discretion to deal with the situation in that manner.

Steele v. Mountain Institution is another important case, dating from 1990. In that case, the parole board did not deal appropriately with the issue. The Supreme Court of Canada released the individual because the parole review process had failed to ensure that the applicant's sentence had been tailored to fit his circumstances.

Clearly, a judge under this bill will have the ability to tailor the sentence to fit the individual involved. If the judge is satisfied that a minimum parole time of 25 years is appropriate, then that judge will make that decision and leave the discretion to the parole board. However, if the judge decides that in a particular case, the proper tailored sentence is to increase it beyond 25 years, then that meets the test in the Steele v. Mountain Institution case.

Finally, in the Queen v. Lyons, again from 1987, the Supreme Court of Canada upheld an indeterminate sentence because, among other things, a pattern was required. Again, in this particular bill, a pattern of at least one previous offence will be required before a judge has the discretion to increase the parole ineligibility time.

Thank you very much.

Mr. Scott Newark, Special Counsel, Office for Victims of Crime: Honourable senators, I should like to add a couple of practical considerations in relation to the issue of constitutionality. When I first heard that that was raised as an issue in relation to the bill, I must admit, I puzzled over it to see what the specific objections would be.

Right now we know that it is constitutionally valid to have a parole ineligibility period for 25 years for someone convicted of one, two or three murders. I would suggest that it is unlikely that the court will say that having a parole ineligibility period of 26 years for someone convicted of two murders is necessarily constitutionally invalid. Obviously, it can be more than that. The point I am making is that there is an artificiality already present in the selection of a number for ineligibility, anyway.

Second, you will find generally that the courts, in determining the constitutionality of a provision like this, look to see whether there is some rational purpose or connection as to why something is introduced. Really, both of these provisions target legislative direction in presumptive consecutive sentencing for serial sexual assaults and sexual assaults committed by persons on conditional release for sexual assault, and also multiple or serial killings. In the last 10 years or so we have seen that kind of legislation from the current government.

I am thinking in particular of the high-risk offender legislation, Bill C-55. We recognized the reality that a disproportionately large number of offences are committed by a disproportionately small number of offenders and that there is an immense public safety benefit in specially targeting that group. Bill C-55 is probably the best example, but there are many others. I am quite confident there is that rational connection.

In my judgment, probably the single most important thing that supports the constitutionality of the legislation is the fact that this bill adds discretion to the courts rather than taking it away. The only restriction, if you will, on the discretion of sentencing judges exists because of the current law. Frankly, courts have greater discretion in sentencing on shoplifting, the most minor offence, than they do on the most serious offence. Murder is rather strange, and there are other examples we can discuss later.

A court is endowed with discretion, and this fact is extremely significant in determining whether a decision is constitutionally valid. I would suggest to you, frankly, that the reality is that this is not so much a legal issue as it is a policy issue. I agree with Mr. Chipeur's comments that your duties extend beyond simply constitutional examination to looking at the wisdom of the policy. If you are calling other witnesses, as I hope you do, from, for example, the Department of Justice, I urge you to ask them whether this is a policy issue or a legal issue.

You might even want to go so far as to ask for legal opinions, as we did on Bill C-3 in relation to DNA data banks. I think it is fair to say that there is not a great history in the department actually producing those opinions. Ask for the opinions rather than simply accept the notion that there must be some constitutional barrier to this.

The only case I had mentioned was the Lyons case, but if it is constitutionally sustainable to have indefinite incarceration, I would suggest to you that there is ample justification for the constitutional validity of the provisions in this bill itself. If you decide not to do it, if you decide that it is not a good idea because of policy, that is one thing, but do not decide not to do it because of the fact that you cannot do it.

The Chairman: I would just remark to you, Mr. Newark, that we will be calling other witnesses. We will call any witness that Ms Guarnieri wants to put before us, as well as the department.

Ms Guarnieri: Madam Chair, I just want to add a footnote to clarify that last point about policy. The minister admitted to me, through her officials, that it was a matter of policy. I thought that was an interesting revelation. I leave it to you to determine whose interests are served with having the current law as the status quo.

The Chairman: Senator Cools, you are on the list. I would prefer to go down the list. You can come back to this point with Ms Guarnieri.

Senator Cools: By then, the point will be long forgotten.

The Chairman: I doubt it very much.

Senator Cools: I was making the point, Madam Chairman, to have a supplementary on a particular question.

Senator Beaudoin: My question regards the judge's discretion. Obviously there is no discretion now, and this bill would give a great deal of discretion to the judges. If I understand Mr. Chipeur's argument, this is, in his opinion, quite acceptable and reasonable. You referred to the case of Smith. Was Madam McLachlin a judge at that time in the Supreme Court? I believe that was 1987.

Senator Moore: Yes.

Mr. Chipeur: Perhaps I have the date wrong, but I believe she was in dissent on that case.

Senator Beaudoin: She was in favour of such a discretion?

Mr. Chipeur: Yes.

Senator Beaudoin: You referred to various cases -- Mitchell, Brown, et cetera. Obviously we will have to read all the cases before we go further with the bill.

Are you arguing that it is better to have the discretion with the judge than with the parole board, as it is under the present system?

Mr. Chipeur: The fact is that today a judge has no discretion to require a prisoner to stay in prison for a greater period of time. All of the discretion rests with the parole board. From both a constitutional and policy perspective, it is my view as a lawyer that it is appropriate to give the judge discretion at the time of sentencing to deal with justice and then to leave the parole board with whatever discretion is left in terms of the difference between the mandatory time period and the end of the prisoner's life. That part of the sentence is within the parole board's discretion. It seems to me that it is a good balance because it leaves with the judge an initial statement of society's condemnation of a crime. Then the parole board takes care of the rest of the period in terms of dealing with an appropriate response by society to the individual prisoner 25 or 30 years into the future.

Senator Beaudoin: That is interesting. If we change the Canadian system, as we may, do you not think that we should think a little bit more about the discretion issue? There is a cap here of 50 years, if I am not mistaken.

Ms Guarnieri: Yes.

Senator Beaudoin: Why have you opted for the discretion instead of a different but more precise system? Is it because of the judge's discretion? It could vary from one judge to another, and it could vary from one province to another.

Ms Guarnieri: I presume that all cases are not tailored to one set of circumstances. I thought there was merit in the argument that the presiding judge would take into account all the mitigating factors. He would observe the reaction of the individual. There is merit in the judge being the one to determine what a just sentence is.

Senator Beaudoin: I am not against the judge's discretion. I am in favour of it.

Ms Guarnieri: Senator Beaudoin, he has that discretion in second-degree murder. He can give anywhere from 10 to 25 years. He has that latitude. I am proposing here to extend that same latitude to first-degree murder. It is not a quantum leap in logic that the judge should have the handcuffs taken off him.

You heard the quote by Justice MacKeigan. Obviously, he felt that he was handicapped in performing his duties. How could it be argued that giving the judge more discretion is a bad thing?

Senator Beaudoin: No, I think your argument for giving discretion is certainly not a bad thing in itself.

Ms Guarnieri: Latitude in the sentencing would certainly be an off-shoot of that.

Senator Beaudoin: I will read the cases.

Mr. Newark: Senator, in about 1994 there was an amendment to the Criminal Code that passed through here as well. Section 743.6 of the Code empowers judges to actually delay the parole eligibility on certain scheduled, more serious offences. Again, it is consistent with that. We are not prescribing what a sentence must be. We are saying that if it is a particular kind of an offence, such as a second homicide offence, that Parliament should allow a judge discretion in sentencing and not prescribe a mandatory sentence.

There could be variance in discretion on any of those kinds of offences. However, if we are talking about first-degree murder, there is a precondition for the first conviction. Literally, the sentence for that is life imprisonment with no parole for 25 years.

That is an unique section of our Criminal Code because, as I am sure you know, you can go to any court of appeal sentencing judgment or sentencing text and it will say that essentially any sentence is a blend of the principles of deterrence, denunciation and rehabilitation.

This may sound corny, but it is true. What is unique about murder is that the people of Canada, through their representatives, actually chose what that mix should be. It is throughout the code. On smaller offences, we do not allow someone to be sent to prison for life for spray-painting a fence. We put a maximum sentence on it as a summary conviction offence. There are examples where Parliament, as a matter of public policy, looks at this set of facts and determines what the blend of those principles for sentencing should be. It can say that it feels that it is appropriate to give a judge greater discretion to increase the parole ineligibility time for this reasonably small group of most serious offenders. There is nothing inherently new in doing this.

I would suggest to the honourable senators that it is simply part of the evolution of the criminal process. I am biased. I think it is the right evolution to target the most serious offenders and in particular the ones who are the serial, repeat offenders.

Ms Guarnieri: Senator, if I might add a footnote, I perused the speeches in the House of Commons when the current law was brought into force. I noticed that there was no discussion of multiple murders. Obviously, when legislation is going through the House of Commons, sometimes it is difficult to cover all the angles.

I have delineated three different cases and each circumstance was different. They all involved multiple murders. I am sure that if the Parliament of the day that brought in the current law had been confronted with offenders such as Olson or Bernardo or the 320-odd multiple murderers who sit in our jails, they might have reflected more on multiple murderers.

It would have been hard to foresee the abuse of the current system. As I tried to exemplify with the Crick case, for instance, the witness is eliminated in order to give the offender an easier time at parole hearings. There would be nobody there to remind people of the tragic circumstances.

Senator Beaudoin: I see your point. I will think about it.

Senator Poy: I wish to thank you for introducing Bill C-247. I think the innocent in our society will truly benefit from the proposed legislation.

Why do organizations like the Canadian Bar Association and the Criminal Lawyers Association raise concern about the loss of flexibility in this bill resulting from mandatory consecutive sentences? From what I heard this morning, judges do have discretion in this bill. Can you comment on that?

Ms Guarnieri: I should point out that the representatives from those organizations gave testimony to the Justice Committee before my bill was amended to include judicial discretion.

I would still argue the point that the House and the Senate, in its greater wisdom, allowed the repeal of judicial discretion when it came to an imitation firearm, a toy pistol. Someone could effectively get 30 years for stealing bread, but you could kill 30 people and the maximum you could ever hope to get under the current law is 25 years without parole. That seems to me to be logically inconsistent.

Mr. Newark: It is always difficult to speak for defence counsel, but I shall attempt to do so.

Probably the concern was, as Ms Guarnieri has mentioned, in an earlier version it was deemed to be a mandatory consecutive sentence. I can see the basis, frankly, for some concern about that. As I am sure honourable senators can see from reading the bill, this proposed legislation creates only a presumptive consecutive sentence for serial and repeat sex offenders who are on parole for sex offences. That is all it does. If a court concludes that it would be inconsistent with the principles of sentencing in Part 23 of the Criminal Code, then the court is not obliged to do that.

That has been a general trend over the last 10 years or so in legislation. For example, Bill C-3, which has not yet made its way here and concerns the amendments to the Young Offenders Act, actually creates a presumptive offence in relation to transfers.

Even the elements that were in Bill C-41, the principles of sentencing are really a direction from Parliament. It lists a bunch of things that are supposed to be aggravating factors. It is not mandatory for the court, but Parliament is giving directions to view this as an aggravating factor.

For example, for stalking, section 264(4) of the Criminal Code actually says that if you are convicted of a stalking offence while on a particular recognizance that stipulates "no contact," the court should consider that as an aggravating factor. It is the same kind of thing. We are presuming it to be consecutive unless it is inconsistent. It is really an expression of will as opposed to compulsion by Parliament.

Frankly, other than the fact that there is a general sort of interest in not having people potentially serving longer sentences if your employment is with those people, I think that is the basis for it. With respect, I do not think this bill raises that same problem at all.

Senator Di Nino: Ms Guarnieri, can the discretion that would be given the judiciary with this bill be appealed?

Ms Guarnieri: Do you mean, can it be appealed with a Charter challenge?

Senator Di Nino: Can it be appealed to a higher court?

Senator Joyal: Yes, of course.

Ms Guarnieri: I guess I should leave it to the lawyers to answer.

Senator Di Nino: It is a point we should put on the record.

Mr. Newark: It is an interesting question. The conviction for first-degree murder, with a fixed sentence, could be appealed. If the conviction were successful, that would have a consequential effect on the sentence. However, you could not literally say, "I was convicted of first-degree murder, but I do not like the sentence that Parliament passed for it, so I want to appeal that sentence."

Although, if you recall the Latimer case in Saskatchewan, the judge said that he did not like what Parliament had said and decided not to follow the code.

In this instance, given the fact that it would be a discretionary order of the court, in the sense that it would not be something that is mandated, in my opinion at least, that would therefore constitute an order of the court that would be appealable. If someone decided to add on another 10 years, that portion of it would be appealable.

That is my opinion, anyway.

Senator Di Nino: I will research that point a little more.

I am supporting the bill in part because we are seeing a resurgence, particularly from a certain political party, of support for capital punishment. I think Canadians have not been happy with the judiciary in its treatment of some of the very serious crimes that have come before it.

I am supporting the bill in part because I believe that this will go a long way towards placating that particular group of people. I wonder if you could comment on that.

Mr. Chipeur: Senator, I want to acknowledge the public sentiment, but I want to defend judges here.

Judges have no other option in the case of first-degree murder. To the extent that they may be criticized for being too lenient, they do not have discretion. I think this certainly gives judges the ability to respond to society's view that the crime must be condemned. It is important to address that issue but I think it would be going too far to blame the citizens for that. Parliament has a Criminal Code and every piece of legislation I am aware of over the last number of years has been to increase society's condemnation of crime. This is consistent with that general trend. If that is what you are saying, I would certainly agree with you.

I also wanted to acknowledge Senator Beaudoin's point on another issue. Justice McLachlin was not appointed until 1989. I went back to my sources. I misspoke when I said "McLachlin." It should have been "McIntyre."

Senator Beaudoin: You are still speaking about a Supreme Court judge.

Mr. Chipeur: Justice McIntrye was in dissent and he did say what I said he said. The bill is consistent with both the dissent and the majority in the Smith case. I apologize for misspeaking. Hopefully the record can be corrected to put in his name rather than that of Justice McLachlin.

The Chairman: The record is now clear on that.

Mr. Chipeur: Thank you very much.

Mr. Newark: I want to respond, as well. I was originally a Crown prosecutor in Alberta.

Senator Di Nino: Your reputation precedes you.

Mr. Newark: The case that got me out of the court room concerned a career criminal. His record would have dropped to the floor. He had been given a day pass and he took off. He and his brother and another member staked out a bowling alley. They saw a guy coming back and forth to the bowling alley with a bowling ball bag and assumed that the receipts were kept there. One night they grabbed the guy, got into the car and opened up the bowling ball bag and inside was a bowling ball, so they shot him in the head.

The Chairman: Mr. Newark, may I remind you that there are two more senators on the list.

Ms Guarnieri: There is a point to this story.

Mr. Newark: He was convicted of murder. The judge said he was someone who should not be granted parole, other than with the greatest of caution. Instead, he was given another day pass, and not that long after, he went out and killed at least two more people. The system responded by covering everything up.

I got involved in this by trying to uncover some of that. I learned more about the parole system than, frankly, I ever wanted to know.

I remember a conversation one time with the then solicitor general Mr. Grey in which I commented about the reform of the parole system. Parole does not necessarily hinder public safety and it is useful in reintegrating the right people into society. The real threat to parole lies in the system's resistance to deal with the people who abuse it again and again.

In my former position with the Canadian Police Association, I was asked many times about capital punishment. Let me tell you what I used to tell people.

The Chairman: Mr. Newark, may I remind you again, before you give us anecdote after anecdote, that we do have two more senators on the list to ask questions.

Mr. Newark: If we are looking for increased public safety, reform the parole system. You will get a thousand times more protection than by having capital punishment.

Ms Guarnieri: We know what harm will be caused by maintaining the status quo. With my bill, the worst thing that could happen would be that a multiple-murderer or rapist might actually serve a meaningful sentence for each person he victimized. Would that be such an outrage?

Senator Cools: I would like to thank Albina Guarnieri and, obviously, by extension, her supporters, Mr. Chipeur and Mr. Newark, both of whom I know quite well.

As Ms Guarnieri knows, I support and commend her efforts. I am very pleased that Ms Guarnieri has placed before the Senate some matters that are of pressing concern to the nation. Once again, I thank Ms Guarnieri for that.

Mr. Newark has just said something very profound. He said he learned more about the parole system than he cared to know.

Honourable senators, I served on the National Parole Board for some years, so I know of the problems of which the witnesses speak.

I would also like to add that there is nothing in this country that is more commanding and compelling, for review and improvement and correction, than this thing we call the criminal justice system, yet there is nothing more resistant to improvement. Simultaneously, Parliament is not reluctant to review any area of the administration of justice that it administers.

As Ms Guarnieri will know, I tried to raise the whole set of questions here around the Bernardo and Homolka -- although mostly Homolka -- plea bargains. I can tell you the entire process closed together like a clam because it was not going to be looked at.

It is a whole massive issue, but you have placed one element of it before us. I thank you and I commend you for that.

Ms Guarnieri, you and the other two witnesses have questioned whether there are constitutional issues here. There are absolutely none. The arguments regarding the unconstitutionality of the bill are absolutely specious. There are no legal arguments, but there are substantial questions on policy and on what should be policy.

You started to say that you obtained from the Department of Justice some agreement or some discussion or some admissions, whichever word we wish to use, that the issues at hand or the objections that they had were questions of policy and not questions of law.

It is a principle of ministerial responsibility that if any minister of the Crown is in a difference of opinion with the House of Commons, that if the will of the House of Commons prevails, the minister should yield to its will.

Based on what I have been hearing, we have a situation where the minister -- and I cannot propose to speak for the minister, but I have been reading the press in the last several days -- is hopeful that what the minister failed to do in the House of Commons may be successfully accomplished here in the Senate.

It is my wish and my hope that this committee will give this bill due, proper, fair and objective consideration.

The Chairman: Senator Cools, we always do.

Senator Cools: Very well. Therefore, I can take that as a commitment from Chairman Milne that Ms Guarnieri's bill will be studied properly and judiciously and that any vote on this question will represent the opinions here on the bill.

Thank you very much for that, Chairman.

As I was saying, the principle of ministerial government is that a minister is supposed to maintain the favour of the House of Commons at all times. If the minister has a difference of opinion with the House of Commons, it is the House of Commons' will that prevails. The principles of ministerial responsibility have always insisted that when a minister becomes aware that her will is different from that of the House of Commons and that the House of Commons' will is prevailing, the minister then has a duty to turn her mind and the mind of her department's staff to the process of assisting the bill and to assisting that private member to accomplish and to bring about a most excellent bill that will then reflect the opinion of the prevailing majority in the House of Commons.

My question to you is the following, Ms Guarnieri. When the Minister of Justice, in this instance Anne McLellan, became aware that it was the will of the House of Commons to support your bill, did the minister turn her largesse, her offices, her staff and her expertise as an officer of the Crown towards you and your bill?

Ms Guarnieri: It is certainly my fervent hope that the minister will add her weight to the bill and shepherd it and assist the Senate in its deliberations.

I could not agree more with Senator Joyal. If I expressed impatience at seeing this bill to fruition, you will have to forgive me. It was more a criticism of process than a criticism of individuals.

However, the minister was good enough to put at my disposal her Justice Department officials the day before we went to report stage. That was a very productive meeting.

Senator Cools: I take it, then, that we can say the minister yielded and gave her support to your bill.

Ms Guarnieri: I would never presume to speak for the Minister of Justice.

Senator Cools: We have a bill here. The minister is presumed to have supported it because it has passed the House of Commons. When the House of Commons speaks, it has one voice at the end.

Ms Guarnieri: I know that our Minister of Justice is capable of speaking for herself. I would not presume to speak for her.

Senator Cools: I was not asking you to speak for the Minister of Justice. I was asking you to speak for yourself. I was asking you about the assistance that the Minister of Justice placed at your disposal.

Ms Guarnieri: She did make her officials available to me before the report stage.

Senator Cools: Could you name them for us?

Ms Guarnieri: It was her executive assistant.

The Chairman: Senator Cools --

Senator Cools: This is quite in order.

The Chairman: If you wish to answer, Ms Guarnieri, you may, but this is really beyond the scope of the present contents of the bill that are before us.

Senator Cools: No. The issue that is before us is the ministerial support for the will of Parliament, the will of the House of Commons.

Ms Guarnieri: I do not see a problem with answering. I met with Mr. Mosley, who was good enough to extend quite a bit of time, and her executive assistant, Mr. Brown, who I understand has long since left the hill.

Senator Cools: Therefore, it is in order for this committee to assume that the bill as currently before us has enjoyed the input of the minister's staff?

Ms Guarnieri: I guess that would be a fair interpretation.

Senator Cools: Thank you. Chairman, on the previous point I raised, it is quite in order for any committee member to inquire of any private member as to the assistance that a minister gave.

The Chairman: I allowed Ms Guarnieri to answer.

Senator Andreychuk: At this late time I am going to restrict myself to two points.

I am concerned that, as the public reacts -- and often it reacts with not all the full information about cases particularly -- there is more and more criticism of the courts and more and more pressure on judges to hand out the most severe penalties in the cases before them. In your bill, I am concerned that, while you are trying admirably to give discretion to the judges, you may in fact be profiling them in a way that I think in the end may have repercussions on the judicial system.

Ms Guarnieri: I do not think that that should impede a just sentence. My case before you today is about proportionality in sentencing. In second-degree murder, the judge has latitude. He can give 10 or 25 years. I do not think public pressure burdens him to the point that he cannot function in his duties. Hopefully, I am making the case sufficiently well that the kind of latitude that exists in second-degree murder, where the judge can impose whatever sentence he sees fit, given the fact that he hears the evidence, observes the offender and the offender's behaviour, should also extend to cases of first-degree murder.

Today, I have cited three different cases where the sentence certainly did not seem to fit the crime. Basically, I am advocating taking the handcuffs off the judges. I do not think the judiciary would necessarily find it a burden to be coming out with a just sentence, a sentence proportionate to the crime.

I am a bit puzzled by your question because I imagine judges make very difficult decisions every day in terms of what sentence to apply.

Senator Andreychuk: You may be puzzled by it, but I follow the House of Commons and their deliberations rather closely, and the actions of members of Parliament outside of the house. Increasingly, I find that both government officials and parliamentarians do not take the time to explain to the public the position judges find themselves in when they enforce the law.

Ms Guarnieri: Perhaps we should educate them.

Senator Andreychuk: Yes, but I think that is part of what we are here to find out. It seems to me that, often, when judges exercise their discretion, it is the parliamentarians who cry foul and say it is not just. Between what is acceptable and appropriate for a judge to do and what the public demands in a case, there is sometimes a chasm, and I have found that the members in the other place have not often made that distinction. In fact, they have taken advantage of it.

Ms Guarnieri: You make a valid point that we should not grandstand. No one should grandstand when it comes to issues of importance to Canadians.

However, I would argue that a level of discomfort that a judge might have in applying what he sees as a just sentence should not interfere with a fair and just and proportionate sentence. I think you would agree with me there.

Mr. Newark: The bill deals in part with presumptive consecutive sentences on sexual assault and says that the judge must give his or her reasons for not imposing a consecutive sentence. Over the last 10 years, there are probably three or four or five examples in the code where we require judges to give their reasons for not doing something. I am thinking of one particular example that relates to bail. I would be happy to provide you with examples of where we do that. Again, Parliament is expressing its intent, but is saying that if you are not going to do it, and it understands that you have the discretion, it wants you to list the reasons why you are not so it can see that nothing was done for the right reasons.

Your comment in relation to the notion of public criticism and the facts is a very fair one. I would suggest, though, that when you are dealing with the kinds of cases that the consecutive ineligibility period discretion deals with, the real loss of confidence does not come because of something that might be contained in this bill. It is because people look at, for example, Clifford Olson and see that he was convicted of 11 murders, and yet was able to apply for judicial review only 13 years after he was originally convicted.

Michael McGray, currently making his way across Canada, was convicted on four murders and counting. I mentioned Daniel Gingras. With multiple offenders there is a greater sense of a problem as to why the sentence was imposed. This bill will give the courts the discretion to be able to deal with those worst kinds of offenders differently.

Senator Andreychuk: I wondered, Ms Guarnieri, should this bill pass here, would you also try to make changes to the Parole Act for some of the same reasons you want changes to this bill?

Ms Guarnieri: It has taken me four years to get this far. I think I will stick with one bill at this point.

The Chairman: You might want to quit while you are ahead.

Thank you very much for coming before us. I should, in all fairness, warn you that we will not be proceeding immediately with further testimony on this bill. I would like to receive from you a list of prospective witnesses, and we will do as we have done with Private Members' bills in the past. We will put this bill in wherever we have a possible opportunity to hear bills. We have one government bill before us and quite a few other bills, including yours. We will do our best to juggle them all, but do not expect immediate results.

Ms Guarnieri: Thank you. In the meantime, I will table some documentation and a suggested witness list.

The committee adjourned.