Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 32 - Evidence
OTTAWA, Wednesday, October 30, 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 3:15 to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Senators, the steering committee decided last week that we would hold very detailed hearings on this important bill. We will hear from the Elizabeth Fry Society and the John Howard Society tomorrow and, next week, from the Canadian Police Association, the Canadian Association of Chiefs of Police. Victims of Violence and the Canadian Resource Centre for Violence. The following week we will probably not sit. We will hear later from the Canadian Criminal Justice Association and the Church Council on Justice and Corrections.
On Wednesday, November 27, 1996, I will be asking for leave to sit at 3:15, even if the Senate is sitting at that time, because it is the only time that we can get the witnesses from the Canadian Bar Association and Patrick Healey of McGill and Julian Roberts from the University of Ottawa, both respected criminologists. On Thursday, November 28, we will hear from the Attorney General of Ontario.
Our witnesses this afternoon are from the Department of Justice and from the department of the Solicitor General.
Welcome. Please proceed.
[Translation]
Mr. Yvan Roy, General Counsel, Criminal Law Policy Section, Criminal and Social Policy Sector: Thank you, Madam Chair. We are honoured to appear before your committee to answer to the best of our ability any questions you may have concerning Bill C-45 which is before the committee for more detailed consideration.
[English]
I thought perhaps the best way to introduce this topic would be to spend a few minutes outlining the three fundamental things accomplished by this bill.
In order to understand what these three things are, it might be advisable to explain where we are now and where this bill would take the legislation if passed by Parliament.
Bill C-45 has been referred to as an amendment to section 745 of the Criminal Code. That is no longer the case. The section has been amended through Bill C-41, which became chapter 22 of the laws of Canada of 1995. That is a sentencing bill. I am sure that honourable senators are familiar with this piece of legislation.
At the time this was passed, the government, and the Minister of Justice in particular, suggested an amendment to what was then section 745 and became section 745.6. That amendment was adopted by Parliament. The new section permitted the juries in section 745 cases to receive information from the victim of that crime. "Victim" is defined as "the family of the victim" because, by definition, the victim is already dead, having been killed by the person who is before the jury.
What is the mechanism that we are talking about here, namely, clause 745.6 of the code? You have someone who has been found guilty of murder in either the first or the second degree. Remember that the sentence remains life in all those cases.
Senator Jessiman: But life means 25 years, does it not?
Mr. Roy: There are two situations. For murder in the first degree, the law stipulates a mandatory 25-year prison sentence. For murder in the second degree, the law states that one must serve at least 10 years; the sentencing judge can increase this from 10 to 25 years. In both cases, the mechanism which we are discussing would apply.
After an inmate has completed serving 15 years, he may make an application to the chief justice of the superior court of the province. That chief justice will convene a jury to hear the application. In the present mechanism, the jury can then make a determination as to whether the inmate should be able to apply to the National Parole Board for an earlier parole than that which was decided at the time of the original sentencing.
Presently, the jury must make the determination with a majority of two-thirds of the people sitting on the jury; that is 8 out of 12 in most cases.
Until the amendment brought forward by Bill C-41, there was some controversy as to whether the jury was to hear from the victim and the victim's family about this. One case went all the way to the Supreme Court of Canada on that issue. The Supreme Court took note of the fact that Parliament was seized with the matter and did not decide the issue. The issue was eventually decided because the section was amended by Bill C-41.
If the individual is not successful in having the period of ineligibility reduced, then the jury can decide when that person can make another application. It is possible that the jury could disallow the inmate from making another application of this sort until the full sentence is served.
That controlling mechanism is already in place in the law. Anyone who makes a frivolous or vexatious application may well be sanctioned by the jury and told not to come before another for a certain amount of time.
The Minister of Justice is proposing three things. He is saying that those convicted of killing more than one human being should not be able to benefit from the mechanism of section 745.6. Therefore, they would serve their whole sentence as passed by the trial judge.
The minister is also saying that, in those cases where one would see fit to make an application -- and, again, I remind you about the controlling mechanism that I have been talking about -- the jury may tell the inmate not to come back until a time stipulated by the jury. In that circumstance, some applicants will refrain from making any application.
If an inmate does decide to make an application, the minister is proposing a screening mechanism by a judge of the Supreme Court or of the superior court in the province where the hearing is to take place. This is to ensure a reasonable prospect of success in the case. Purely and simply, vexatious applications will be screened out.
Finally, the Minister of Justice is saying that, in the criminal justice system currently, convictions are decided by a unanimous polling of the jury. To receive a remedy, that same institution, namely, the jury, must also be unanimous. Therefore, the 12 members of the jury must agree with the remedy being granted before one will be granted.
I must stress again that that remedy is purely and simply to allow the individual to make an application to the parole board. The parole board then makes a separate determination on whether this inmate can have some form of release in the community with the appropriate supervision.
Senator Jessiman: But the relief is not necessarily unanimous. Once the jury decides unanimously that there should be relief, then the amount of the relief is determined by two-thirds of the jury. Is that correct?
Mr. Roy: Yes. Actually, if the jury were to say, "We are not allowing any relief or any remedy", the period of time required before you can make a further application will have to be determined by the same majority that we are talking about here.
This is the proposal that the Minister of Justice has put before Parliament. We are here to answer your questions as best we can.
The Chair: Perhaps you can clarify something for me. You said there were three factors. The first factor was conviction for killing more than one person. In those cases, proposed section 745.6 could not be used.
You then went on to say that there would be a screening mechanism to avoid vexatious applications. Who would be making these vexatious applications if number one eliminates them?
Mr. Roy: The mechanism that we are talking about, namely clause 745.6, will be available for those who have killed only one human being.
There may be cases where, after having killed one human being and having served 15 years, an individual would still be making a vexatious application. The criteria are provided by law to decide whether the application has some chance of success. If not, the inmate does not reach that threshold.
I will direct you to proposed section 745.63, which outlines the criteria that are required by law. Those criteria that I am talking about here are presently found in section 745.6 of the Code. The criteria have not changed.
Section 746.6 is saying that an inmate who has killed once, may want to make an application after 15 years. If the application is vexatious, there is no reason to make an application after 15 years. Vexatious cases will be screened out so that the family of the victim, for instance, will not be put through the trauma of reliving the case while there is no chance of success for the convicted person's application.
Senator Milne: Mr. Roy, Senator St. Germain asked me a question in the Senate about repeat offenders. The data I was able to use in my response was dated as at the end of 1995. Do you have any more up-to-date data than that?
If I can just sort of make a précis of his remarks with respect to offenders who have been released early due to section 745, he wanted to know how many had subsequently committed murder. My answer was none, as at the end of 1995.
Perhaps you can place on the record any more up-to-date figures you may have. You might also comment on recidivism in general among this population of criminals.
Mr. Roy: I cannot state for the record that any of the people who have benefited from former section 745 have committed a murder following their release. Ms Trottier was good enough to look into the records and produce some new statistics which are available. We have made copies. These can be distributed.
Senator Jessiman: You are talking only of Canada, I assume, because there are certainly statistics from the United Nations which say something quite different.
Are you saying that some inmates have obtained relief under this section? Was the information you had up to a certain date that there were none who had committed murder? Are you now suggesting that there may be one or more?
Mr. Roy: No, I am saying that the statistics that we have are accurate as of October 28. According to the statistics, only 40 per cent of those people who were eligible to make an application in 745 actually did so. Out of these, a smaller percentage have obtained relief and, of those, none of them have committed murder.
Senator Jessiman: Is it not true that there are other people have been released on parole for other offences, who obtained relief to get out earlier, and who then committed murder?
Mr. Roy: That is a different question.
Senator Jessiman: I know that, but I am asking whether that has happened.
Mr. Roy: It has happened. People have who been on parole have definitely committed murder in the past, yes. However, those are not people who were paroled for murder.
Senator Jessiman: Of the 752 convicted murderers released from January 1, 1975 to March 1, 1990 -- I am talking about in the world now -- according to the United Nations, less than 1 per cent have killed again.
That does not mean very much to me. One per cent is seven people. I would hate to think that if you released 750 murderers, you would "only" get 7 more people killed. That to me is terrible.
Senator Milne: None of them were in Canada.
The Chair: Our percentage is at zero.
Senator Jessiman: Canadian murderers are no different than any other murderers. We just do not have the numbers yet.
Senator Milne: There are some, and I rather suspect Senator Jessiman is amongst them, who support the complete repeal of section 745.6. They have suggested that while this bill does not go far enough for them, it would be improved if we made it retroactive. Is that done in criminal matters? Can you comment on the possibility of making a bill retroactive?
Mr. Roy: To some extent the bill is retroactive in its application. I have told you that there are three elements to the bill: Multiple murderers do not benefit from the screening mechanism, and the unanimity of the jury would be required.
The unanimity and screening mechanisms will apply as soon as this bill is passed. In other words, even if the crime was committed prior to the entry into force of this legislation, it will be governed by these two measures. To some extent, this is retroactive.
As for multiple murderers who are already in the system, they are not to be governed by this new procedure because that element would be retroactive. There are some significant charter problems with doing something of this sort.
As an example, a person who has been found guilty of murder prior to this legislation coming into force and who kills another person would not have the benefit of section 745.6. That person would have to serve a minimum of 25 years.
However, those who are already in the system and have already killed more than once are not captured by this provision, because there is a good likelihood that this would be ruled unconstitutional. That is the reason it was not done.
Senator Milne: This does not catch the Bernardos of this world.
Mr. Roy: This would not catch the Bernardos of this world.
Senator Milne: Perhaps you could explain a little more fully the re-application process. I know that when a jury declines to reduce the period of ineligibility for parole, they can allow an inmate to reapply at a certain date. You were talking about this to a certain extent. This date has to be at least two years in the future. What happens if the jury is not unanimous on that point or if they cannot come to a conclusion on that point?
Mr. Howard H. Bebbington, Judicial Affairs Unit, Public Law Sector, Department of Justice:It is a minimum two-year period. The earliest an unsuccessful applicant could be allowed to return before the jury would be two years. This would apply if the jury is unable to decide.
The time limit also applies to the jury's decision. The jury may decide two years or a longer period. The jury may decide that an applicant may not come back again. However, if the jury is unable to decide, it would be two years as a minimum period. That decision by the jury can be made on a two-third majority basis. It does not have to be unanimous.
Senator Milne: Can you tell me if the minister or your department consulted with victims' groups before drawing this bill?
Mr. Bebbington: Yes, we did, in a number of ways. The minister, as you know, is very active and likes to meet people and has met with many of the victims from whom you will hear in the coming weeks.
In addition, the department had a specific consultation session in the department where we met with the Canadian Police Association, the Canadian Association of Chiefs of Police, and some of the representatives of the victims' groups as well.
Senator Milne: Many of these groups that will appear before us have had a certain amount of input into the bill before it was drafted?
Mr. Bebbington: Yes, their views have been heard and are very well known to us.
Senator Jessiman: What is the magic in 15 years? You are sentenced for 25 years and you can apply after 15. Why not 16 or 14?
Mr. Bebbington: There is something that I think is extremely important, just to re-emphasize. The sentence is not 25 years; it is life.
Senator Jessiman: It is life, but the judge can only give you 25 years.
Mr. Bebbington: With respect, sir, the sentence imposed by the judge is life imprisonment. In addition, a component of that sentence is the mandatory ineligibility period of 25 years. That means, if someone does not get the benefit under section 745.6, they are not eligible to apply for parole until they have served 25 years.
Senator Jessiman: Has anyone served more than 25 years?
Mr. Bebbington: Yes. At the 25-year point, a person starts with their application before the parole board. The parole board considers that and, even in good cases, will start with various sorts of absences, escorted and then unescorted, to be followed by day parole, to be followed by full parole if they are a successful, desirable candidate. There is no guarantee that someone will get out at the 25-year point. Certainly people have served beyond that point.
Senator Jessiman: Can you give me some statistics on that?
Mr. Bebbington: I do not think Ms Trottier is prepared to speak to that today but I am sure we could follow up with the Solicitor General's department.
Senator Jessiman: I would like to know that.
Mr. Bebbington: How many people have served more than 25 years?
Senator Jessiman: Yes.
Mr. Bebbington: You have to understand that the 25-year period was imposed in 1976.
Senator Jessiman: I understand that, and that is why I am suggesting that there cannot be many, but I want the answer. Why is it 25? Why is it not life and let the judge determine the time?
Mr. Bebbington: With respect to the 25- and 15-year periods, as I am sure you will know, those are periods established in the parliamentary debates in 1976. If I recall correctly, the Canadian Association of Chiefs of Police, was pushing for a 25-year period of ineligibility. All of these numbers are, of course, arbitrary, which I am sure is the essence of your point, but if you look at the 15-year period and at other countries, 15 years tends to be a high point for time served by people convicted of murder. In many countries, particularly the western democratic countries, the number of years served for murder before parole tends to be 15 years or less.
I think you will see in the statistics that are available to you that, even in the United States which has one of the highest rates of incarceration in the world, the average time served is 18 years at the federal level and 15 years at the state level.
Our period of 25 years without eligibility for parole is very high compared to the countries to which we are most akin in terms of our democratic institutions, hence the thinking that, at some point in the 25-year period, there ought to be a mechanism to reconsider the harshness and the length of that sentence and to tailor the sentence to the particular circumstances.
This would only occur after someone has served 15 years, and not literally at the 15-year point because you cannot apply until you have served 15 years. At 15 years, you make your application to the appropriate chief justice. It often takes as long as a year to have your application heard.
After that point, you may make that application to a jury to consider whether you should get some relief from that 25-year period.
If you review the debates in 1976, you will see there examples of people who wanted a very long period without parole eligibility to compensate for the abolition of capital punishment. By the same token, there were a number of people who said that 25 years is an extremely harsh and long period of time, that to put a person in jail with no hope of release for more than 25 years has a very profound effect on their spirit and morale and that if we hope to encourage people to attempt to change their behaviour, that this is a way of doing that.
Senator Jessiman: My next question is about this arbitrary bias. If a person kills, the fact that he kills two people or one person seems to make a difference. Why is two the number? Is it just any more than one?
Mr. Bebbington: I must say I agree with the point of your question. That is an extremely difficult line to draw and there are certainly individual homicides that are every bit as heinous as multiple. The point of the screening is that we may have a Paul Bernardo or a Clifford Olson who is caught after the first killing. Hence one of the purposes of the screening mechanism is to catch those cases so that they must go before a judge to see if it is reasonable for this case to go further.
It is very difficult in all of these cases to draw lines. These cases are horrible. In all of these cases, our worst nightmare has occurred. In a sense, everything we do has been struck with the irony and the arbitrariness of which you speak. However, the essential notion in our criminal law is that an individual who repeats his criminal act must be treated more harshly. If someone has killed once, we can understand that it may be a mistake -- it certainly is a mistake.
Senator Jessiman: They might kill two people at the same time.
Mr. Bebbington: It may be at the same time or it could be prior.
Senator Jessiman: I understand the clause.
The same holds true with this jury process. You pick eight and now you are saying the jury has to be unanimous to determine whether you will get relief. Then you say you will make it unanimous, but the amount of relief will be reduced to two thirds. I would like to abolish the section.
Senator Doyle: You describe the law as being available for those who have killed. That would suggest that those who insist that they have not killed but nevertheless are serving time for murder will not have this process available and they would be weeded out among the other vexatious applications.
What happens to a person who, although he may have been in prison for the required number of years, meets all the other criteria but says, "I did not kill anybody?"
Mr. Bebbington: That is a very difficult question to answer. Section 745.6 is predicated upon the notion that someone has changed his behaviour, that someone has reformed himself after serving 15 years. It would be a very difficult argument to make to the jury that, "Not only have I not changed my behaviour, but there was no need because I was not properly convicted."
A section 745.6 review will not exist to go over the facts or to re-litigate the original conviction. An applicant who applies under 745.6 would have to accept that as a basic starting point. Otherwise, they would be in an extremely difficult position in attempting to convince a jury that they had changed their behaviour.
It would be very difficult for someone to attempt to re-litigate their conviction in the course of the 745.6 review. It is not intended as an appeal and I would expect that the judge and the Crown attorney would having something to say about someone who attempts to re-try the original conviction. I hope I have answered your question.
Senator Doyle: In other words, there is no change in the process of dealing with people serving time for murder other than the process for those who are established felons. They are really the bad ones. We have done nothing to change the law as it applies to, say, the Milgaards and the Marshalls in our system. Milgaard, I think, was in prison for 27 years, not 25.
Mr. Bebbington: The bill before you does not address that situation at all.
Senator Doyle: Can you tell me which bill does?
Mr. Bebbington: The bill relates particularly to the section 745.6 reviews of the parole ineligibility period for people convicted of murder. It is premised upon a conviction that stands and has not been challenged.
The point of the review is to allow a jury to consider whether an applicant's ineligibility period, which in most cases is 25 years, ought to be reduced because they have changed their behaviour or reformed themselves while serving the first 15 years of their life sentence.
With respect to suggestions that someone has been wrongfully convicted, this bill does not touch that area at all. I do not know if Mr. Roy may wish to speak to other things that touch on that area.
Mr. Roy: Senator Doyle, someone who claims that he or she has suffered from a miscarriage of justice can apply to the Minister of Justice using the royal prerogative of mercy that is left with the representative of the Queen in this country, in order to have his or her case reviewed with a view to seeing whether there was actually a miscarriage of justice.
Let us take the case of Donald Marshall. The situation you mention would be remedied by this kind of a review, rather than what we have now. This section 745.6 review is for the purpose of getting someone before the parole board.
In the case of Donald Marshall, the purpose of the review is to show that this person has not done anything wrong. I would submit to you that the appropriate remedy is found either in section 690 of the Criminal Code, the way it is right now, or the use of the prerogative of mercy which can be found in the 1947 letters patent of the Governor General. Those letters patent govern the exercise of pardon in this country.
Senator Doyle: But you will recall that neither Mr. Marshall nor Mr. Milgaard got out of jail as a result of a normal process. There were great campaigns launched on their behalf and those led to new hearings. I am not trying to make a big thing of this. However, if we are being terribly cautious now to keep people in jail who are likely to be risks on the outside, it reminds us to be cautious about some people being wrongfully convicted.
The Chair: Senator Jessiman is from Manitoba. He is a well respected member of the bar from my province. Yet he, like many Canadians, does not understand what these sentences are all about.
We keep hearing Canadians saying that someone has been sentenced to 10 years or 25 years; they have not been sentenced to life. I know you have done this once, but I want you to clarify again what these sentences mean.
Mr. Bebbington: It seems to me it is extremely important. Often the knowledge of criminal justice system that is held by our fellow citizens is gained through short clips in the media, particularly the electronic media, where a sentence or two is too much to speak. So we speak in terms of 25 years and parole eligibility as opposed to life sentences.
The sentence for someone convicted of first-degree murder and high treason is a mandatory sentence. It is one of the few mandatory sentences in the Criminal Code. We have other sentences we call mandatory minimums where a minimum sentence is established, but this is different. This is a mandatory sentence. The judge has no discretion.
The sentence is life imprisonment with no eligibility for parole for 25 years. That sentence is subject only to the review under section 745.6 at the 15-year point.
The sentence for second-degree murder is also a mandatory life sentence. The parole ineligibility period established for that sentence is ten years. The jury has the opportunity to recommend to the judge that the period be raised from between 10 to 25 years and, on the basis of that recommendation, the judge may set the period higher.
In a particularly horrible case of second degree murder, the judge may set the parole ineligibility period as high as 25 years. Certainly, he can move the period beyond 10 to 12 or 15 years.
Senator Jessiman: What about beyond 25?
Mr. Bebbington: There is no provision under the law as it currently exists to set a parole ineligibility period beyond 25 years.
The Chair: If there is an eligibility for parole after 25 years, does that mean there is a guarantee for parole after 25 years or there is simply an eligibility after 25 years?
Mr. Bebbington: Again, we suffer often from the momentary news bite. I appreciate your question.
Eligibility for parole means one has the right to apply to the parole board to be considered for parole. It is by no means a guarantee of parole. In most cases, even in sympathetic, good cases, the parole board engages upon a pattern of systematic release where they consider, first, temporary absences. If those are successful, they move on to day parole and, if that is successful, possibly on to full parole.
When someone is released on day parole or full parole, that release is pursuant to conditions. If any of those conditions are violated, the release is suspended, the individual is re-incarcerated, and there is a hearing to determine whether the parole should be revoked. Someone who is serving a life sentence, if they are fortunate enough to be successful under section 745 and to be released on full parole at 18, 19 or 20 years -- which would be a fast case, believe me -- continues to be subject to those conditions after they are released.
You hear examples of those conditions, not to take drugs or to drink alcohol, not to associate with particular individuals, certainly not to be involved in any criminal conduct. Often the conditions of parole place higher standards on the convict than exist on many of our other citizens.
If those conditions of parole are violated, the individual can be re-incarcerated and there is no guarantee that they will get out again.
Senator Milne: In other words, anyone on parole for murder can be thrown back into jail for the rest of their life at any time if they violate any of the conditions of their parole?
Mr. Bebbington: Yes. If they violate a condition of parole, their parole will be suspended. There will be a revocation hearing and they may well be re-incarcerated for a long period of time, potentially for the rest of their lives.
Ms Jennifer Trottier, Senior Policy Analyst, Corrections Policy, Solicitor General's Department: Should a convict be fortunate enough to be released on any kind of parole when serving a life sentence, they are under supervision by a parole officer from the Correctional Service of Canada for the remainder of their life in the community. That requires reporting regularly to that parole officer and adhering to the conditions that have been set by the National Parole Board.
Senator Jessiman: Can we get statistics as far as those people who have been released on parole? How many, if any, have been brought back and are there for life?
This savings clause applies to anybody once this passes, even murderers of multiple victims. I want to know how many people have served more than 25 years and just how many years they have served. Of those who served more than 25 years, did any of them die in jail of natural causes?
This came up in the House of Commons. Mr. Gallaway quoted a representative of the Canadian Police Association as suggesting that, to a man, all policemen are supportive of the repeal of section 745.6.
It just amazes me that they are playing around with this thing. They went too far before and they are saying, well, we had better satisfy these people. They should either get rid of it or stick to what they have done in the first place.
The Chair: I think that was a comment rather than a question.
I do have a question which builds on Senator Doyle's question. I am very familiar with the David Milgaard case and less familiar with the Donald Marshall case. There seems to be built into the eligibility for parole, the admission that you are guilty. That seems to catch somebody like David Milgaard in a real catch-22. He insisted he was innocent and, therefore, became ineligible for parole because he would not admit that he was guilty.
I assume we have done nothing to clarify that in the Criminal Code. Are we even examining something in the Criminal Code to clarify that?
Mr. Roy: The case involving Mr. Milgaard is particularly difficult. As you will recall, a reference was made to the Supreme Court of Canada and that reference was inconclusive. The court was in no position to say whether there was a miscarriage of justice or not in this case.
However, the court also said that, given that the person had already served 22 years, it would be a good idea to release that person in any case, which was done soon thereafter by the authorities.
In the case of section 745.6, one of the criteria for the jury in making the decision is the character of the applicant. If an applicant appears before the jury and steadfastly says, "I did not do it," and the jury is still convinced that that person committed the crime, it may very well be difficult, if these amendments are passed by Parliament, for that jury to unanimously agree that this person should have a chance to get parole. They may very well conclude that the character of the individual is such that the person has not come to terms with what he or she has done.
In my humble estimation, it is a catch-22 situation because the jury is making the determination on the basis of the evidence presented by both the Crown and the lawyer representing that individual. They must take into account whether that person, after 15 to 20 years, is willing to say, "I have changed."
If a person is not willing to say that and this is not a criterion that is in law, what is the jury supposed to be doing? It is supposed to be releasing in every case? Is it not the very nature of this mechanism that the person has changed? Is Parliament not saying that perhaps after 15 to 20 years such persons have changed sufficiently that they can go before the parole board and convince them that they should be released in the community following the steps about which Mr. Bebbington has been speaking?
It seems to the Minister of Justice and his officials that this is the nature of the mechanism about which we are speaking. Not having this in the legislation would probably defeat the purpose of the entire legislation.
Where there is evidence to show that a person has not done it and he claims that he has not done it, such as with Donald Marshall, there are already mechanisms in the law which such a person can use. With all due respect to those who will disagree with me, I do not think that the mechanism in section 745.6 should be changed to try to accommodate these cases. We should leave those cases to be dealt with through the appropriate mechanisms which are already in the law.
The Chair: I am more concerned about the fact that the individual, having served quite a long period in jail, is not a danger to society if released. I am less concerned that they admit to a crime they do not believe they committed.
Senator Gigantès: That was the point I wanted to raise. Are there other mechanisms of sufficiently easy access for the Milgaards and the Donald Marshalls of this world who we now know were innocent of the crime of which they were convicted? I do not want a guilty party to escape punishment, but it is one of the nightmares of our civilizations that innocent people are convicted of crimes they have not committed. They denied their guilt for years and years, and presumably for years and years no one listened to them.
Is there anything we can do about that? The police and the prosecutor have fought their case and defended what they convinced the jury was so. Unless they are very rare persons, they will not exonerate the non-guilty party who was convicted.
What can we do about that?
Mr. Roy: The system as a whole is geared toward ensuring that only the guilty will go to prison. The old saying is that we would rather have ten guilty individuals go free than have one innocent person go to prison. The system is geared toward that. We start with the presumption of innocence. We have the jury system. There are a number of safeguards in the system. However, as in any human system, there is always the chance that someone who has not committed a crime will be found guilty.
To deal with that, we have in place the mechanism I was talking about in section 690 of the Criminal Code. I am very closely associated with that mechanism. It is my job to supervise a number of those cases.
An application is made -- and that can be done through a hand-written letter -- by someone in prison to the Minister of Justice, an MP or a senator, proclaiming innocence. That letter will find its way to the Minister of Justice, if it is so forwarded. At that stage, the Minister of Justice asks some of his lawyers -- and there is a team of lawyers who do this -- to investigate the matter; not on behalf of the Crown, not on behalf of the person who is making the application, but on behalf of the representative of the Attorney General and the Minister of Justice. If there is need to ask for the assistance of someone else, be it psychiatrists, medical experts, experts on DNA or anything else, the Minister of Justice tells his lawyers to seek that assistance.
After having conducted a thorough investigation of the matter, including the new matters raised by the prisoner, these lawyers get in touch with either the inmate or his or her counsel and submit to them the report of the investigation. They ask whether there are other facts they should know and whether they agree with the report. If they do not agree, they are asked to put that in writing because it will be brought to the attention of the Minister of Justice.
The Minister of Justice then reviews the whole file.If there is a reasonable likelihood that there has been a miscarriage of justice in the case, the minister has three choices.
The first choice is to order that a new trial take place.
The second choice is for the minister to tell the Court of Appeal in the province where that case took place to look into the matter because he has found something which requires the attention of that court.
The third possibility is that the Minister of Justice can refer the matter to the Court of Appeal on the basis of some questions that require the attention of the Court of Appeal. In other words, instead of being a general appeal, the minister can refer some specific questions to the Court of Appeal. Once the Court of Appeal has reviewed those questions, it can declare the personal to be not guilty, order a new trial or have some hearings.
These matters are reviewed extensively by lawyers working for the Minister of Justice. This is not done behind closed doors. The results of the investigation are shared with the party making the application.
If the individual is not satisfied with the result of this, these matters are reviewable before our courts.
There are at least two cases where the Minister of Justice has decided that there should not be a remedy. One was the Thatcher case from Saskatchewan and the other was Morrisroe from British Columbia. These individuals have seen fit to go to the federal court to challenge the findings of the Minister of Justice.
The question is: What else can be done? There is something that can be done. In addition to the mechanism that we had in section 690 of the Criminal Code, you have the royal prerogative of mercy, which can be exercised either through section 749 of the Criminal Code or under the letters patent of the Governor General, which were given to him in 1947.
The Governor General can do whatever he or she wants in those circumstances. It can be a free pardon or it can be a conditional pardon where the person will say, "I continue to say that I have done nothing wrong." The Governor General could let the person go free, but in most cases of conditional pardons, it is based on difficult circumstances for the inmate. An example would be an inmate who is dying of cancer in prison. There have been cases where the Governor General has said that this person could go back in his or her family to die peacefully.
A number of mechanisms are in place to insure that these kinds of miscarriages of justice will not occur. Are they fool-proof? We hope so. Can we assure you of that? Certainly not. This is a human endeavour, nothing else.
Senator Gigantès: Where did it fail in the case of Donald Marshall and David Milgaard?
Mr. Roy: In the case of Milgaard, the jury is still out as to whether or not Mr. Milgaard did it. The case was referred to the Supreme Court of Canada and the Supreme Court of Canada was not able to decide either way. At the end of a five- or six-page judgment, they said that, irrespective of whether Mr. Milgaard did it, he has spent 22 or 23 years in prison, so release him. The government did so.
Senator Gigantès: But the jury is still out, you said?
Mr. Roy: Yes, because no conclusions have been reached that Mr. Milgaard was the victim of a miscarriage of justice.
The Chair: To be fair, Senator Gigantès, he is not referring to a specific jury.
Mr. Roy: No, it is a general expression.
Senator Gigantès: Has he not asked that he be cleared officially and not just released? Has he not asked for some procedure that will declare him innocent on the basis of the new evidence?
Mr. Roy: I think he has sued the prosecutor who handled his case in Saskatchewan. The case is still before the courts. On that basis, you will understand that it would not be appropriate for me to comment any further.
I can only refer to the fact that the Supreme Court of Canada received the case, reviewed the matter, and did not conclude either way. Mr. Milgaard was released. After having been released, he chose to retain counsel and to prosecute his civil case in the courts of Saskatchewan against the Attorney General of the province and the prosecutors who were involved in that particular case.
In the case of Mr. Marshall, a commission of inquiry was set up to review this particular matter. The commission of inquiry purely and simply concluded that the system failed Donald Marshall. On that basis, both the federal government and the government of Nova Scotia attempted to compensate Mr. Marshall to the tune of a few hundred thousand dollars. However, I am sure this is not a settlement which takes into account the time he spent in prison and the ordeal that he had to endure.
There have been other cases of miscarriages of justice. There is one in Ontario, the Norris case. Again, the province and the federal government have contributed to some compensation since Mr. Norris spent 10 months in prison for a crime he had not committed. The person who had committed the crime came forward and confessed. That person's story was corroborated. The authorities said there was a mistake and that they should be compensating in that case.
[Translation]
Senator Nolin: You will have to pardon my ignorance. Why is it that this bill makes reference to two laws?
Mr. Roy: That is an excellent question.
Senator Nolin: Could you explain this to me? Did we overlook something when we passed the most recent Criminal Code amendment respecting sentencing? What happened?
Mr. Roy: We tried to cover all the bases.
Senator Nolin: Are two separate pieces of legislation referred to as the Criminal Code?
Mr. Roy: No, as you will note in the bill before you, we repeat the same thing three times.
This bill was tabled on June 11, 1996. It was not possible to address every situation that might arise.
Bill C-41 which we spoke of earlier was passed by Parliament in June 1995, but was not in effect at the time this bill was being drawn up by the Minister of Justice. He had to allow for the following possibilities:
Firstly, that Bill C-41 would not take effect until after the passage of Bill C-45 by Parliament. That was the first scenario.
Secondly, that Bill C-41 would never come into force.
Thirdly, that Bill C-45 would take effect following the proclamation of C-41, exactly the situation that we find ourselves in today.
The important thing is to refer to subclause 2(2) on page 10 of the bill. It outlines the provisions which will eventually take effect if Parliament does indeed pass this bill.
I will repeat, three situations were possible. The bill had to make provision for all three possibilities in the event Bill C-45 was adopted by Parliament prior to Bill C-41 becoming law. That is the technical explanation.
Senator Nolin: I was certain there was a good reason for this. I did not know what it was and that is why I asked the question.
Secondly, I have never practised criminal law. There must be a very good reason, but as I do not see it, I will ask you the question nonetheless.
The word "eligibility" appears in the English version but not in the French one. On reading the French text, we are left with the impression that a person is paroled as a result of the process which you described to us. However, from the English version, it is clear that this only means the person becomes eligible to have a parole hearing.
Take a close look at clause one.
Mr. Roy: On which page?
Senator Nolin: In clause one on page 1 of your bill, you use the word "eligibility" in line 10. The French version reads as follows:
...la réduction du délai préalable à sa libération conditionnelle...
We get the impression that parole is automatic. From the English version, it is clear that there is a step...
Mr. Roy: An additional step.
Senator Nolin: Is this standard drafting procedure? I glanced through the bill to see what replaced the Parole Act. Do you see my problem? Is it normal for the two versions to differ to this extent?
Senator Gigantès: I do not know what you are referring to. I am looking at the two versions.
[English]
In English, it says:
An Act to amend the Criminal Code (judicial review of parole ineligibility) and another Act.
[Translation]
The French version reads as follows:
Loi modifiant le Code criminel (révision judiciaire de l'inadmissibilité à la libération conditionnelle) et une autre loi en conséquence.
Does this not have the same meaning?
Senator Nolin: Look at the last line, line 10, on page 1.
Senator Gigantès: Line 10.
Senator Nolin: I will read you the last three lines in English. We can read them together.
[English]
For a reduction in the number of years of imprisonment without eligibility for parole --
[Translation]
A person may apply in writing to the appropriate Chief Justice in the province for a reduction in the number of years of imprisonment without eligibility for parole. The word "eligibility" does not appear in the French text or anywhere else in the bill for that matter.
A question about this was asked earlier. It is clear from the English version that what we are looking at here is ways of reducing or extending the period of time prior to which an inmate is eligible to apply for parole. I get a different impression from the French version: there is no reference to eligibility, merely to the fact that this process will result in parole.
I admit that I am not very knowledgeable about parole matters. Perhaps this is merely a drafting technique that you understand much better than I do. Maybe you should clarify this for me in English.
[English]
Mr. Roy: I do not know whether I should try to answer this in French or in English because I am not sure that the French version is not saying exactly the same thing that the English version is saying.
We have heard comments very much like those made by Senator Nolin about other pieces of legislation. When we compare the French and English line by line, several people say the English appears to be clearer because here you are using the word "eligibility". In English, that clearly gives the reader the understanding that we are not giving parole right now, but only granting eligibility to get parole.
The French text does not use the word "eligibility", or whatever the appropriate translation for that word is in French. It would be clearer if it used a word like that. However, when you read the text as a whole, it becomes clear that the jury is simply giving permission to go to the Parole Board.
That takes me to the standard response I try to give whenever I have a question like this. These pieces of legislation are not translations one of the other. These are being drafted on the one hand by an English drafter who follows whatever is appropriate in terms of English terminology, and we have the French drafter doing his or her thing following le génie de la langue in French.
Hopefully, whenever you read a number of sections one after the other, this would transpire, and that would be helpful.
Frankly, Senator Nolin is shaking my confidence that this is as clear in the French version. One would hope that it is also clear in the French version that this jury is only making a determination on whether the person can go to the parole board or not. I agree with you, looking line by line, that the word "eligibility" would probably make it even clearer in French.
Senator Nolin: Our colleagues involved in criminal cases have been using those arguments, even considering the young age of section 745.6. Has this analysis never been tried in court?
Mr. Roy: No, we have not had that problem in the cases that have been decided. You will see from the statistics circulated that there have not been that many in the four or five years since section 745 and now 745.6 have been in effect. That argument has not been presented because it is fairly well understood that all you are talking about here is going to the parole board.
Perhaps, for public education purposes, it would have been easier for people when they read the section to understand what is meant if a word like "eligibility" had been inserted in the section. From a legal standpoint, I do not think we have a problem. Public education may have a point which is different.
[Translation]
Senator Nolin: No, I understand. If we follow this reasoning, the Parole Act would have no effect. This reasoning does not wash. I have one final question to ask, if I may.
Senator Gigantès: When you say to someone: "You are now eligible for parole", does this mean that that person will in fact be paroled?
Senator Nolin: No.
Senator Gigantès: Does this statement simply mean that the person is now entitled to a parole hearing?
Mr. Roy: That is correct.
Senator Gigantès: Senator Nolin is correct. The reduction in the number of years of imprisonment without eligibility for parole directly involves the process for which the person is deemed eligible, as is described in the English version.
Senator Nolin: The average Canadian who reads this will have a problem.
Senator Gigantès: On reading the English version, we have the impression that there are two stages: in stage one, a person becomes eligible for parole and in stage 2, a decision regarding parole is made in the course of a parole hearing.
In the French text, we seem to skip directly to the second stage where a person is granted parole.
Senator Nolin: Getting back to the answer you gave earlier, we do have legislation governing the parole process. I have argued my point as much as I can. Forgetting the fact that the Parole Act exists and that the English version exists as well, someone who reads the French version could come to the conclusion that he is entitled to parole once he has made his application. I think matters need to be clarified.
Mr. Roy: The legislation is drafted in such a way that we must interpret its provisions as narrowly as possible. What does the jury ultimately decide? The process is the same in both the French and English versions. The jury decides whether or not there will be a reduction in the number of years of imprisonment without eligibility for parole. In other words, the jury only decides if there will be a reduction in this period of time. It never decides whether or not the person should be paroled.
When you read through the bill, in particular section 745.6 and what follows from page 10 onward, you will note that everything revolves around the reduction in the number of years of imprisonment without eligibility for parole. There is no indication whatsoever that the jury is the one to decide whether or not someone will be paroled. The jury rules on the first provision. Why is this? Because the succinctness of the legislation is such that in parole matters, we must refer to another act which brings us before the proper authorities, namely the National Parole Board.
We are up to our neck in legal technicalities. Strictly speaking, there is no error in this text of law. I understand Senator Nolin's question. It's all well and good to speak about the succinctness of the act, but the average Canadian will not understand this. Perhaps it would have been better to use a word that is equivalent to "eligibility". I do not see how this would impoverish the legislation in any way whatsoever.
Senator Nolin: It would simply make it clearer. I have one final question for you regarding the translation of the text. In line 43 on page 2 of the bill, the expression "reasonable prospect" is rendered in French by "possibilité réelle". I am left with the impression that the degree of conviction of the judge is more important in French than in English. In other words, the judge must be convinced that there is a reasonable prospect that the jury will reduce the number of years for parole eligibility. This is the preliminary review stage.
Mr. Roy: We have gone over this wording every possible way on numerous occasions...
Senator Nolin: I do not doubt it.
Mr. Roy: ...to come up with something satisfactory in the hopes that others will also be satisfied and to ensure that the criteria in place correspond in both the English and French versions.
May I kindly remind you once again that we do not translate our legal texts.
We take pains to ensure that either version can stand on its own.
As far as we are concerned, the expression "possibilité réelle que la demande soit accueillie" is equivalent in law to the expression "reasonable prospect" in the English version. The word "prospect" is used in the English version, that is in the translation and not in the version produced by parallel drafting.
After proceeding through numerous steps, I can assure you, as can our departmental experts and legal consultants, that as far as we are concerned, both versions were equivalent. Our hope now is that judges will interpret them the same way.
Senator Nolin: I hope that we will not have to amend the legislation in five year's time because of future legal rulings.
Senator Losier-Cool: This would guarantee work for the lawyers!
Senator Nolin: With all the legislation we have, the future of lawyers has been assured for some time already.
[English]
Senator Milne: I believe Senator Jessiman asked for statistics relating to how many people have served more than 25 years. I do not know if you can do this sort of thing because the present law just came into existence 20 years ago. Anyone who was in there for 25 years now would have been sentenced to death at that time. I do not know what kind of parole eligibility they would have. Perhaps you would amend your question about the statistics to people who have been incarcerated under this present law.
Mr. Roy: That may be difficult. Since it became law in 1976, there would be none. I think Ms Trottier can help you with this.
Ms Trottier: We have people who have served over 30 years in prison. I can go back and ask the Correctional Service of Canada to get that data for you.
Senator Jessiman: There is parole before the 20 years. It is just a different type.
Senator Gigantès: A person was condemned not to death but to a very long sentence.
Mr. Roy: The sentence would have been commuted.
Senator Gigantès: Even before the death penalty was abolished, they could be condemned to a very long sentence.
Mr. Bebbington: You could be sentenced to life in prison prior to 1976 for a non-capital murder. There are two types, capital murder or people whose sentences were commuted to life, and non-capital murder or people who received a life sentence. The 25-year period came into being in 1976 with a section 745 review. However, the life sentence was around a while before that. We will check to see who has served more than 25 years for murder.
Senator Jessiman: As well, perhaps you could check to see how many, if any, were sentenced to life. Where they were sentenced to 25 years or less, they may have died, but how many were there for life?
Senator Milne: I want to be absolutely clear in my own mind. This proposed bill does three things. First, with respect to multiple or serial killers, there will be no parole.
Mr. Roy: There will be no ability to apply for parole before having served at least 25 years. In other words, one does not benefit from the mechanism of section 745.6, period.
Senator Milne: Second, under this new section, single-murderers can be screened by a judge. Third, if the judge then screens them and says this can go to a jury, the jury must be unanimous on the decision to send it to the parole board.
Senator Jessiman: Can they suggest what the amount of relief should be at the jury level? Let us say they reduce the sentence. That must be unanimous. Then the amount of the relief is two-thirds. They then send that to the parole board.
Mr. Bebbington: It is important to remember that the screening mechanism for multiple murderers will not affect people unless they commit the multiple murder after the act comes into force. However, both the screening and the unanimity requirement have a retrospective operation. The moment the legislation is passed -- and hopefully it will be passed by Parliament soon -- it will affect people who are currently in the system. If we have a multiple murderer like Paul Bernardo, although he committed the multiple murders before the legislation came into force, he will not be affected by that part of it. However, he would be affected by the screening device.
The screening device will apply to anyone currently serving time for murder, whether they are a multiple-murderer or a single-murderer, provided they have not applied before the legislation comes into force.
The Chair: Thank you very much.
The committee adjourned.