Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 35 - Evidence
OTTAWA, Thursday, November 7, 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 10:32 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, I should like to bring the committee to order.
We have two witnesses with us this morning. From Victims of Violence, we have Mr. Robert McNamara, Vice-President; and from the Canadian Resource Centre for Victims of Crime, we have Mr. Steve Sullivan, Executive Director. Welcome and please proceed.
Mr. Steve Sullivan, Executive Director, Canadian Resource Centre for Victims of Crime: Madam Chair, I would like to thank the committee for allowing us to come before you today to talk about Bill C-45.
To begin, I would like to talk briefly about section 745 of the Criminal Code. As you know, this bill will make amendments to that section. I believe I can speak for Mr. McNamara, and probably other victims' groups such as CAVEAT, in saying that one of the things we realize when we travel across the country and speak with victims of crime is that, because of their experiences, they have a difficult time trusting the system in the beginning. They have lost a loved one. There is obviously some mistrust there. When they hear a judge in a courtroom sentence someone to 25 years' imprisonment without parole, they believe that the sentence will be just that. When they find out later -- and some of them not until we get to the 15-year point -- that, in fact, not all offenders have to serve that time, but that there is a provision in the Criminal Code that allows for a 15-year review, they feel betrayed, and I think justifiably so. That is one of the inherent problems with section 745. It really takes away from the sentence that the judge hands down. It is probably the worst case example, I think, of our system saying one thing while doing another.
As we travel across the country, it is not only with victims that we find that sentiment but it also found among members of the public who, increasingly, are finding out about this section of the Criminal Code and feeling betrayed. Most believe that when someone is given a prison sentence of life without parole for 25 years, that is just what it means -- 25 years in prison. It is a simple statement which people tend to believe. When they find out about this section of the Criminal Code, they feel betrayed by their government.
I will tell you at the outset that we are opposed completely to section 745. We do not think the section should exist. However, we have a bill before us that does not repeal it but which tinkers with it, or makes some amendments to it. For the most part, they are positive changes.
One of the most unattractive features of section 745 as it now exists is that it allows every first degree murderer, and some second degree murderers, a right to a review if they so desire. All they have to do is apply and they will have a hearing. The strongest aspect of Bill C-45 is that it takes away the inherent right to such a hearing. There is the right to make application to a judge. If a judge can be convinced that one deserves a hearing, after meeting all the criteria, then a hearing will be granted.
Having said that, there are some questions with the process by which that is done. It is a very broad term that the judge will make his or her decision upon -- "reasonable prospect of success". We will have to wait until after a number of these hearings have taken place to see exactly what that term means. It is left very broad. There is little to guide a judge in his or her decision. That is one concern.
Another concern is as to what the judge will consider when making his or her decision to grant someone a hearing. As you will know, there are provisions for the judge to consider the application, a report by Correctional Service Canada -- something which I will address in a few minutes -- and any written evidence provided by the Attorney General or the applicant.
You will notice that there is no specific mention of victim information. One could argue that victim information could be included in the Attorney General's information. However, when dealing with legislation as important as this, we do not want to assume anything. We want to include victim information, and I think the government does as well, because it made amendments in Bill C-41 earlier this year that did include the provision of victim impact statements at the judicial review hearings. I think the indication is that victim information is important. It should be set out specifically in this bill that victim information "will be considered" by the judge.
After going over the bill again this morning, I am not clear if victim information will be considered for only those murderers sentenced after this bill becomes law, or whether it is only for those people already serving a sentence. That is a question to which I do not have the answer. The only people who can provide the answer would be lawyers from the Department of Justice. It may be a question to which this committee would want to get an answer before deciding on whether or not to pass this bill.
I talked about the information provided by Correctional Service Canada. One of the concerns that we have is that we believe that Correctional Service Canada is the agency tasked with housing offenders, rehabilitating them, making recommendations to parole boards and, ultimately, supervising people in the community. I think they have an inherent self-interest in rehabilitating offenders, or at least providing information that appears that people have been rehabilitated. If we have cases where a number of offenders are not being rehabilitated, the question is whether Correctional Service Canada is doing its job.
We have looked at a number of board investigation reports of cases gone wrong. If you look at most of them, you will see that there are problems with the information that comes before the parole board provided by correctional services and the supervision after.
Recently, in Barry, I attended a judicial review of a man convicted of murdering a police officer almost 20 years ago. A psychologist testified stating that she supported this person's early release. Yet, when the Crown delved further, it was found that she had never looked at the actual offence or the official version of the facts. She had relied on what the offender had told her. She did not know that when he escaped from prison before he committed the murder, he had bashed in a man's head with a steel pipe after which he stole his car. She did not know this, yet she was making a judgment that he would be a safe risk on parole. I think that is dangerous.
We must consider the fact that correctional services is the agency which decides what information is put before the jury. We must also consider that it has a vested interest in presenting certain information.
The other thing with regard to the screening process about which we want to be careful concerns someone going through the screening process and being granted a hearing. We would like to ascertain that that information is not used by the applicant to sway the jury. The jury should assess its decision on the evidence before it. Whether a judge granted someone a hearing or not should not enter into the deliberation process. I think anyone who has sat in a courtroom knows how much respect juries have for judges and their decisions. I do not think the fact that someone has gone through this screening process should be allowed to influence a jury's decision.
The second major change Bill C-45 will make is that it will deny the provisions of section 745 to multiple murderers. The message is clear that, as a society, we differentiate between people who murder more than one person and people who kill "only" one person. The government has made it clear that there is a difference between those types of offenders. I would broaden that scope to include, for example, people who murder police officers, people who murder in the commission of sexual offences or while on early release. The committee may want to consider broadening that scope somewhat and look at the other types of offenders to whom we want to say, "You do not have a right to this provision."
The major thing the bill does is change the jury's decision. Currently two-thirds of the jury must agree to grant a reduction. This bill would change that to be a unanimous jury decision. Once the decision is made for a reduction to be granted to the offender, it only requires two-thirds of the jury to agree on what the reduction should be. That is not a big point. It seems unnecessarily complicated, but it is not a major point.
You will note that in the back of the brief there are several recommendations. I have provided to the Clerk of the committee a copy of the CAVEAT submission. We discussed this with them at length yesterday and we are in general agreement about the bill itself.
The basic message that we bring to you today is that we support the outright repeal of section 745. We reluctantly support this bill because we feel it makes some positive changes to the current system. If it is not to be repealed, then the changes about which I have spoken are the next logical step.
The committee should take a close look at this bill. I know that representatives of the Canadian Police Association appeared before you yesterday. I believe they have made some positive recommendations.
If this bill is passed, then it should be the best bill possible. The government has sent the message that it is not happy with the current system. If it is to be changed, then let us change it in the best way possible. The committee should consider the changes and recommendations suggested before it makes a decision.
I will turn the floor over to Mr. McNamara.
Mr. Robert McNamara, Vice-President, Victims of Violence: Madam Chairman, I am Vice-President of Victims of Violence, Canadian Centre for Missing Children. Ours is a nationally registered charity formed in 1984 by the family members of the murder victims of Clifford Olson. Our president today is Sharon Rosenfeldt whose son Daryn was one of the victims of Clifford Olson.
At the outset, I would say that section 745 has caused more harm and concern to our organization than any other section of the Criminal Code. Every day in our office, there are discussions about it. I can tell you horror story after horror story of people's suffering because of this section. The one consensus in our organization is that it is hurting victims. Why do we have it?
We started to think of alternatives to section 745. We kept coming back to concurrent and consecutive sentencing here in Canada. I do not believe we would need section 745 in the Criminal Code if we had consecutive sentencing. If a gentleman like Clifford Olson killed 11 children, he would receive 11 consecutive 25-year sentences. He would be eligible for parole at one-third of that mark.
It does not make sense that we are giving some a discount. This is the only sentence on which you can get a discount, that is, a judicial review. Rapists do not get it. No one else gets it. I looked back through the debates in Hansard at the time when capital punishment was being dealt with. There was not much mention of it then. The people in the other place at the time realized that; however, it is basically skipped over.
As a Canadian, I had no idea about this provision of the Criminal Code. Victims of Violence did not learn of section 745 until 1991, long after it had been passed. We feel cheated and deceived. As Mr. Sullivan said, when you are sitting in the courtroom, you have all your emotions to deal with. You are in turmoil. You are looking at the person you respect the most, the judge. That person will be deciding the fate of the accused. The person who has heard all the evidence from both the defence and the Crown has made a judgment and says, "25 years to life." There is nothing more frustrating to me, after the sentence has been imposed, to have to tell family members, "Well, it is 25 years to life, but there is section 745 of the Criminal Code to be considered." They feel cheated, ripped off and deceived by politicians.
Why not be open about it? There are certain Members of Parliament on both sides who believe that one should be getting a 15-year sentence. That is why I believe this section is in here. I know that Warren Allmand, for example, says that a murder penalty should be 15 years. He has a point. There are people who, after 15 years, deserve to be released. However, there are many others who do not.
I failed to mention that one of our researchers did her thesis on section 745. Copies of that thesis are available at the back of the room.
Those are some of our concerns. We see no reason for the section to be in the bill. Let us be open about it. Most of the people who commit murder have previous records. They have federal records. If you look at the statistics in the thesis, you will see that 17 per cent of people who commit murder have no previous convictions. Perhaps we should be looking at that as a target for letting murderers out after 15 years, but I do not think that 74 per cent or 80 per cent of people who commit murder should be eligible for early release.
Victims of Violence is totally against section 745 of the Criminal Code. However, like Mr. Sullivan and the Canadian Police Association, we accept this bill reluctantly. It tinkers with the section. It will prevent people like Clifford Olson from applying for judicial reviews in the future. We believe that this was a last-minute attempt in the spring to prevent Olson from applying for such release, only because we were loud about it. How can a guy who tortured, raped and murdered 11 children actually have the possibility of getting out? I think there is a snowball's chance in hell of that happening, but if you had told me five years ago you could beat a rape charge by being drunk, I would have laughed at you.
We support the bill, honourable senators, but we really wish the section would be repealed.
Senator Milne: I would like to reiterate what both of you realize because I do not want you to go away with any false hopes. All this committee can do is amend what is before us, pass the bill as is, or turn it down as is. Of those alternatives, I gather you would prefer that we pass this bill as is because we cannot bring amendments forward which would, for example, negate the entire section 745.6. We cannot do that because it would be contrary to the intent of the bill.
Mr. McNamara: Reluctantly, that is what we are doing. We are supporting the bill. We believe there will be opportunities in the future to come back to this issue.
Mr. Sullivan: You can make amendments which would strengthen the bill and make it clear that victim information is to be considered by the judge.
Senator Milne: That is one thing I would like to point out to you. I believe the intent of the bill is not to exacerbate victims' feelings by having them come before the judge if someone happened to apply, but to let the judge make his decision. Then the victims can come before the jury, which must decide. The judge would weed out the worst cases. Those cases would never, ever come to the jury, and the victims' families would not have to be put through this again. I think that was one of the intentions of this particular bill.
It states clearly in the bill that the jury shall consider certain criteria, one of which relates to information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section. If the criminal should get passed that first hurdle, then the victims will have a full opportunity to make their case before the jury.
Mr. Sullivan: You are right. I would argue it is something the judge should also consider when he or she makes his or her decision to grant someone a hearing. You could argue that the attorney general, for example, could include a written statement from the victim in his or her evidence. However, if it is something the committee decides upon, I would argue that it is important that the judge have that information -- if a victim so chooses to present a written statement to the judge -- so that the judge could consider that when making the decision to grant a hearing. Of course, the jury can consider it. That is made clear, yes.
Senator Gigantès: Mr. McNamara, you said some people deserve to be let out after 15 years and some do not. This bill is the instrument for determining which is which.
I get medieval when I think of people like Clifford Olson. I would not stop at the death penalty; I would kill such people under torture.
As Senator Milne pointed out to you, it is difficult to do the job of determining who is worthy of being let off and who is not. We will always be faced with the possibility of error.
Mr. Sullivan said that we must have the best bill possible. Unfortunately, there is no such thing because legislators are subject to human error, as are judges and juries.
This is not the best bill possible; however, do you consider it to be the least unacceptable compromise? By that criterion, I presume you accept this bill as the least unacceptable.
Mr. McNamara: When I talk about the 15-year mark, I have strong feelings about section 745 being deceptive. I believe we should be open about it.
When I think of section 745, I think of parole. There is no other way to call it. It is just parole eligibility, and we are playing games. The jury will decide whether this guy gets out or not. It will go to the parole board. It is just parole, so let us call it just that. Let us get rid of section 745. Let the judge do the sentencing at the one-third mark just as a judge does with any other offence in the Criminal Code. Go before the parole board. If you want to throw a jury in, then do so. For someone who commits multiple murders, let us get into consecutive sentencing and move up his parole eligibility date. There is no need to be hiding around all this stuff in the back rooms.
If you look back through the debates in Hansard, you will see that this deal was made because some of the people who would have voted for capital punishment thought that capital punishment was the worst of the two evils. They thought 25 years in jail was more cruel than capital punishment. This section was put in to sway votes. That is the reason I believe it is there. That is the deception of it all.
Senator Gigantès: Does it not provide another step, that is to say, allow a judge who will first filter out some of those he or she thinks should not be let out and then send others to the jury?
Mr. McNamara: I believe that step is there.
Victims' families have a lot of respect for judges, as do I. If I know beforehand that a judge sat down and vetted the material and decided that this guy has a chance of getting his parole eligibility reduced, then I will go with the judge. In my prior life I was a carpenter. If I am going to put my judgment against a respected judge who says this guy has a chance, then I will go with the judge. I will let him out because I will respect the judge in the belief that he knows more than I.
We must be careful about that when we look at the judges who vetted this.
Senator Gigantès: There are innumerable cases, as judges will tell you, of the jury going against what the judge would have done. The fact that the judge has expressed an opinion before a case goes to the jury does not necessarily influence the jury. You will have the chance, representing a victim, to influence the jury.
Mr. McNamara: You can see where I have difficulty with all of this.
Senator Gigantès: So do we.
Mr. McNamara: So why are we dealing with this? We are supporting it, I guess, but very reluctantly. We do not believe it should be in place. Let us be open about it.
Mr. Sullivan: I did say that this committee should pass the best bill possible. You could never pass a perfect bill. That would be impossible. I will stand by my word and say that you should pass the best bill you possibly can. If you were to amend this current bill to strengthen it, then you would be passing the best possible bill.
We realize in coming here that we will not see the repeal of section 745 tomorrow. We are realistic. We know the best we will get is this bill or, hopefully, some amendments that will strengthen it.
Senator Gigantès: Mr. Sullivan, you said that Correctional Service Canada has a vested interest in showing that it has rehabilitated people. One might argue it has a vested interest in keeping as large a prison population as possible in order to guarantee jobs.
Mr. Sullivan: In looking at some past reports of boards of investigation, there was one that said a corrections directive was "GTO" -- get them out. People within corrections were told to get inmates on to the streets. Another one was released earlier this year.
There is pressure on corrections staff and parole board staff to get long-term offenders on to the streets serving a regular life. I argue that the position being put forward to corrections staff is that their job is to get people on the street. That is their job.
You could make the argument that, if they had a huge population, they could justify their jobs more easily. Realistically, the money is not there to do that.
Senator Gigantès: There are correlations. Of course, one can always argue that the statistics are not necessarily good, fair or bear any resemblance to the truth. However, there seems to be a correlation between lower criminality and a lower percentage of the population in jail. Our country has one of the highest numbers of people in jail per capita.
Mr. Sullivan: Our crime rate is going down.
Senator Nolin: Are you sure about that? We can obtain the numbers. If you compare us with the U.S., they are way over the top.
Senator Gigantès: They are not when you compare us with Britain, Holland and the Scandinavian countries. The rest is practically an aberration.
Mr. Sullivan: If you look at the statistics, you will see that we now have more people in prisons than we have ever had. We are detaining more people for longer periods of time. We are doing a better job of identifying the really dangerous ones. Our crime rate is going down.
Perhaps there is a correlation between the fact that our crime rate is going down and that we are keeping the worst offenders in jail.
Mr. McNamara: The problem we had with the populations in our prisons was that we put people in for petty crimes when there was absolutely no need for them to be incarcerated. Some of the bills passed recently have dealt with alternative measures and community work. Such convicts do not deserve to be in jail. They will come out of prison worse than they went in.
Now, high-risk offenders and dangerous offenders, those who belong to the revolving-door syndrome, are being detained. I speak of Clifford Olson because he is "part" of our organization. He had 91 previous convictions. People like him should not be on the streets. They are the people who should be locked away. When you start dealing with murderers who already have a long history of committing crimes culminating in murder, then we should be looking at more than 15 years or 25 years.
The famous great train robbery led to sentences like 35 years or 50 years. Our murderers do not get that.
Senator Gigantès: Do not forget that the elites sometimes think that taking money is worse than taking a life.
Senator Jessiman: How is your membership made up? How many people do you represent?
Mr. McNamara: Our organization has approximately 1,200 members.
Senator Jessiman: Where are they located?
Mr. McNamara: All across Canada. At one time we had offices across Canada, but we decided, when our organization was first formed, that we would not accept any government money. We would not accept, for example, United Way money. We decided that we would be self-supporting. If the community believes that we should exist, then they would keep our doors open. So far, we have been lucky. The community has supported us and we are here today as a result.
Senator Jessiman: Do you know whether your general membership agrees with what you are telling us here today? Has it ever been discussed at a general meeting?
Mr. McNamara: It has been discussed at a board of directors meeting. Certain members of our organization have been vocal about it. I had a deep discussion with Debbie Mahaffy and with the Polinski family and Rex Sheridan whose police officer-uncle was murdered in Saskatchewan. Some of them went through section 745 hearings. I have talked to approximately 15 people who have had a loved one murdered. I will tell you the view for abolishment of section 745 is unanimous.
With the board being here in Ottawa, we cannot go around and ask everyone. We made a decision. That is why we have a board.
Senator Jessiman: Are there other organizations similar to yours?
Mr. McNamara: The other best known one is CAVEAT.
Senator Jessiman: Do you know how many people they represent?
Mr. Sullivan: I guess about 10,000.
The Chair: Senator Jessiman, we have received a brief from CAVEAT. They were unable to be with us today.
Mr. Sullivan: It depends on how you define membership. I do not know if CAVEAT simply accepts members who ascribe to the group's philosophies or if they have actual input into the organization. I do not know how CAVEAT works.
Our organization is somewhat different. We do not have a membership. We attempt to be a voice in Ottawa. We work with every major victims' group across Canada. Of the groups that we work with, their views are unanimous that this section should not exist.
Mr. McNamara: There is a national justice network in Canada which Mr. Sullivan runs through the Canadian Resource Centre for Victims of Crime. Victims' groups all across Canada realized that we were spouting off all over the place. Steve has brought us into a group, and we have become more organized.
Senator Doyle: Were you consulted when this bill was being drafted? Were you or any of your key members asked for advice by the department preparing the legislation?
Mr. McNamara: No. I will tell you something very interesting about this, senator. The department knew that, because of Clifford Olson, we were raising this issue all across Canada. There had been demonstrations in Alberta about this bill. I believe it was drafted quite quickly. Just before the spring recess of the House of Commons, they tried to put it through.
The department basically threw it at Sharon Rosenfeldt, a mother who had lost a son to Clifford Olson. They were getting her to do the negotiations with the Bloc Québecois to get it through the House of Commons. She was in tears. She wants nothing to do with Olson. She wants to keep him imprisoned. Here is a huge federal department relying on a woman whose son was murdered to deal with a political party.
I was disgusted with that. It did not succeed.
Mr. Sullivan: I believe there was a meeting between some Department of Justice officials and representatives from Victims of Violence, CAVEAT, the Canadian Police Association and the Canadian Association of Chiefs of Police prior to the drafting of the bill. I guess that would be considered consultation. I do not know what was discussed at that meeting.
Senator Doyle: In answer to my question would you say that you were consulted?
Mr. Sullivan: I personally was not, but victims' groups were.
Senator Doyle: You were not happy with the way it was done, but there was consultation.
Mr. McNamara, you said a few moments ago that senators were not always perfect in their decisions. That is probably the nicest thing to have been said about us in a long while. However, are you at all disturbed that this narrow loop, which has special attention, only includes admitted murderers; those who have said, "Yes, I did the deed"? Those who have persisted in their innocence are automatically not a party to this exit group. They seem, in the eyes of justice, to be not in any way rehabilitable unless they confess that the authorities have caught the right man.
We all fear sentencing the wrong man, and that puts us off capital punishment. Yet, that seems to be where it stops.
We know that in the cases of Milgaard and Marshall innocence was their only argument. Eventually, they were, as was Morin, found to be innocent.
Mr. McNamara: That three people have been released shows how well our system works. They were not executed. They did serve time. Unfortunately, as things are not perfect in our system, they suffered. However, the system came around to them. The DNA evidence proved their innocence. In our system we are looking at people who say they are innocent to help prove that they are. We never say they are guilty and slam the door forever. In our system, we are always looking into it.
Mr. Sullivan: As well, this process is not about guilt or innocence. It is a review of whether periods of parole eligibility should be reduced. There are other provisions in the Criminal Code, the Royal Prerogative being one, through which an innocent person can be declared such. David Milgaard attempted to use that provision. A Mr. Kinsella, who claims he is innocent, is presently going through that process.
This judicial review is not about guilt or innocence. It is not a retrying of the facts. It is just to determine whether parole ineligibility periods should be reduced.
I do not think we should use this process to retry anyone. There are already provisions in the code for that. I would not support this process for that purpose at all.
Senator Doyle: There are processes, as you say, but those processes did not serve the three we mentioned this morning. Every kind of pressure had to be brought to bear before they were declared innocent.
Senator Beaudoin: I have two main concerns. The first is with regard to whether the Criminal Code should be amended. It varies from our philosophy.
My second point, which in my opinion is as important as the first, is the application of the Criminal Code. Sometimes people say that the law is badly done, but that is not always the case. It may be that a good law is badly applied. It may be a matter of judgment. Some people ask how it is that a certain person has been liberated in such circumstances. It is probably the result of a bad judgment.
You say we should get rid of a section of the Criminal Code. We will have to examine that. Is the parole system fundamental for you? Is it something that we must discuss a lot, or do you have a very different philosophy about it?
Mr. Sullivan: I support the parole system in general. There will always be improvements we can make to the laws which govern parole, as there will always be improvements we can make to the policy governing parole. Many positive changes have been made. For example, better members are being appointed to the National Parole Board.
I think that most Canadians support a parole system. What conflicts in this section, though, is that for every other sentence, be it 9 years or 12 years, people know that for the most part offenders will not serve their entire sentence. They will get parole at a certain stage. In this case, a judge has actually said, "You cannot apply for parole until you have served 25 years." Then, although that sentence has been imposed, it can be decreased. That causes people to lose faith in the system, something which we should all consider.
As someone said, the trust that Canadians have in our system is at an all-time low. That is something we should be addressing. This section of the Criminal Code captures better than any other that we have a system often which says one thing and does another.
This is not about rehabilitation. Rehabilitation is one aspect of our sentencing principles. There are many others. There may be people in prison serving a 25-year sentence who could be let out on parole and who would not re-offend. However, this is not singularly about that. There are other principles we must address. We must address the concerns of Canadians who do not trust the system.
If the government wants people to be allowed to apply for parole in 15 years, that should be the law, and people should be allowed to make an honest assessment of how they feel about it. If the sentence is to be 15 years, the judge will say that.
What it comes back to is that section 745 has betrayed a number of people. There are many victims who only find out about this section 15 years after the original sentence has been imposed, when the person who killed their loved one is coming up for parole. The majority of Canadians did not know about this section in 1976 and many do not know about it now.
A short answer to your question is that I support the parole system. However, I do not think this is about parole; I think it is about truth in sentencing.
Senator Beaudoin: Do you have anything to say about the application in our country about the disposition of criminal law? It is one thing to say that the criminal law system may be improved. I understand that. We can always improve the Criminal Code.
We also have to take into account the administration of justice. We ask ourselves how someone who has killed another can be liberated. What is at stake? Is it the criminal law enactment? Is it the law? Is it the application of the law? This is of great concern.
The law may be wrong, I agree with you, in some cases. Therefore, it is easy, we can change the law. It is an act of Parliament.
We also have to take into account the administration of justice and the parole system. Do you have any views in that regard?
Mr. Sullivan: Canada has the best criminal justice system in the world. That is not to say it is perfect, because we will never have a perfect system, whether it is with respect to parole, corrections or justice. One of our strengths is that we are always willing to admit that there are changes we can make. We are always improving.
Part of what this process is about is improving a process that is in the Criminal Code. As effective as our parole system is, we still lose, on average, one person a month to offenders on some form of early release. As good as our system is, that number is far too high.
The comment has been made that if we had a carnival ride that killed one person a month, Canada would ban it. That is not to say we should stop parole altogether. We should always be improving upon it.
In terms of the application of law, you are right, senator, it could be the best written law in the world; however, it will always be applied by human beings. There will always be error.
I think the fundamental problem with this section of the Criminal Code is not whether it is applied perfectly or not. I think it is wrong.
Hopefully, these changes will improve it. Down the road we may find that we have to make some other improvements.
I do not know if that answers your question or not, sir.
Mr. McNamara: When I looked back at Hansard, I saw that this provision was called the "faint hope clause". When it was written I believe it was a faint hope. There could, perhaps, be someone who is truly rehabilitated, has served their 15 years, has been the perfect inmate and who will be released.
When this was originally written I do not believe that we thought we would be seeing more than a 70 per cent success rate of those who applied being released. Such a success rate is astonishing. Part of the problem is the way these judicial reviews have been held. I have a list before me. There are 600 of them.
The Chair: Mr. McNamara, from where do you get that figure?
Mr. Sullivan: Mr. McNamara is referring to an approximate 70 per cent success rate at the judicial review hearing level, meaning that around 70 per cent of the people who go through the process are granted a parole ineligibility reduction by a jury. That does not mean they are released. The most recent statistics we have are at March 31, 1996.
The Chair: We have an update of those figures. For example, as of December 1995, of the 175 people who were eligible only 50 received any reduction.
Mr. Sullivan: Many people did not apply. The numbers we have, as at March of this year, show that of the 193 who were eligible only 76 applied. Of those who applied, the success rate is 70 per cent. These are March 31, 1996 figures. I would be happy to leave a copy with the committee.
Senator Pearson: We have figures dated October 22, 1996.
Mr. McNamara: Perhaps you could give us a copy of those figures.
Senator Milne: I have had it pointed out to me that until this bill is passed and becomes law courts do not have any mandatory requirements to consider victims' rights at all. It is presently left up to the judge whether he or she will hear a victim's impact statement.
When this bill becomes law it will become mandatory. This is one of the improvements.
Mr. Sullivan: There were changes made in Bill C-41, which was proclaimed earlier this year, which allowed for victim impact statements.
At the hearing in Barrie to which I referred earlier, the wife of the slain officer and her three children were allowed to give oral testimony.
What I think is left open is whether the evidence given by the victim is to be oral or written. I am not sure the Criminal Code is specific in that regard.
I heard similar concerns, senator, such as: Will the information be allowed now or do we have to wait until the bill is passed? The question has to be put to officials of the Department of Justice. Can victims give the information right now? I do not have the answer to that question.
Senator Milne: Am I correct in saying that there was a case in Ontario in which the judge threw the victims' statements out and refused to consider them? The case was taken to the Supreme Court. The Supreme Court said that the admissibility of victim impact statements under the present law is at the discretion of the judge.
This bill begins to move in the direction which you would like to see it move.
The Chair: I understand that that Supreme Court decision was rendered before the passage of Bill C-41.
Senator Pearson: Would you agree that much of the distrust directed at the judicial system is created by what is written in the media and the misuse of statistics?
Mr. McNamara: With regard to section 745, it is not just the media and statistics, it is the section.
Senator Pearson: You were saying that people discern these things through the media. Statistics are also deceptive. Initially, you said that about 70 per cent of those sentenced are released early. You then corrected yourself and stated that it is only 70 of those who apply under this section who are successful.
The next thing we see is that almost half of the reviews occurred in Quebec. My question is: What is different between Quebec and the rest of the country?
Mr. Sullivan: My understanding of the difference is the way Crown attorneys use this provision.
The philosophy of the Attorney General of Quebec is that Crown prosecutors do not object to this section as much as, perhaps, crown prosecutors in the rest of the country object to it. The court battle they would put up, if you want to use those terms, would not be as strong as you would see in other provinces.
Mr. McNamara: It is a different philosophy in Quebec.
Senator Pearson: When we talk about the Canadian public, we must remember that a large segment of our public is located in Quebec. We have a different phenomenon there. I am looking for some answers in that respect.
Mr. Sullivan: I do not know if the way in which section 745 is applied in Quebec is based on what the people of Quebec want.
Senator Pearson: You do not know?
Mr. Sullivan: That is right; I do not. I have dealt with a few victims from Quebec who are opposed to this provision. Recent articles in Quebec which have detailed offenders having been released on parole and then re-offending have resulted in anger from the people of Quebec. Whether the anger is as strong as that in the rest of the country, I do not know.
Mr. McNamara: We looked at statistics. In our offices, it is kind of a joke. We say, "If you want to kill someone, invite them to Hull for a drink."
If you murder someone in Quebec, your chances of getting a reduced sentence or getting out are a lot greater. If you look at dangerous offenders, you will see that there is not a balance in this country. Quebec has one or two dangerous offenders; Ontario and Alberta have the majority of dangerous offender applications. If someone had walked into the Alberta legislature, shot it up and killed some people, there would be no chance that that person would be walking the street in Alberta 10 years later.
There is a difference in philosophy. I am from Calgary originally.
Senator Pearson: It is important for organizations such as yours to investigate that question a bit further. You must have members in Quebec.
Mr. McNamara: One of the things that might give the wrong impression of victims of violence is that family members of murder victims want the murderer hung. They want him thrown in jail and the key thrown away. In many circumstances, that is not the case.
I started thinking about the question of parole eligibility for multiple murderers. I know a family where the father lost it, unfortunately, and killed the mother and the child. He was sentenced to 25 years to life. He will not have a judicial review because his was a multiple murder. Do we throw away the key on him? I actually believe he can be rehabilitated. He will not be a waste to our society. He would be productive in our society. But there must be a punishment for what he did. We must show the rest of Canada that there is a deterrence -- that is, you do not go out and kill your wife and child. He will fall into that category of not being able to obtain a judicial review.
If we go back to doing away with judicial reviews, the judge will hear all the testimony. He will hear from both sides. He is well respected. Let him make the decision as to what the sentence should be.
The Chair: I have one question with which I should like to deal. It involves the second recommendation of the Canadian Resource Centre for Victims of Crime, which states:
Provide for a provision that no comment be made to the jury that the applicant has successfully passed through a screening process.
I do not think there is any way you could deny that. If the screening process is part of the process, then they would not be before the jury if they had not gone through that screening process. However, there might be something with respect to the following, namely, do we want the jury to know the reasons why the judge approved it going to the jury? Is that what you were trying to address?
Mr. Sullivan: I understand your point concerning the fact that someone has gone through the screening process and the jury may know the law.
I was concerned that the applicant would use that information to influence the jury's decision. Perhaps that could be alleviated if the jury were made aware of why the judge who did the screening granted the hearing. That may alleviate that concern.
Senator Gigantès: Mr. McNamara, do I understand you to be saying that this bill could be better but that you support it, however reluctantly?
Mr. McNamara: Very reluctantly.
Senator Gigantès: There is one change that you seem to come back to all the time, that is, this two-step process of the judge and then the jury. You would like the judge also to hear the victim's case; is that right?
Mr. McNamara: Yes. The judge who will do the screening must hear everything. Many times the victims know more about the case than anyone else; that is to say, except for the Crown and the offender.
In the last few months, I was in attendance in the courtroom where the people who are accused of the murder in Vanier are being tried. At times, the grandmother and the mother knew more about that case than the investigating officers. It is people like that who should be heard by the judge.
The Chair: Thank you very much, Mr. Sullivan and Mr. McNamara. Your presentation today has been very informative and has added to our deliberations. I hope to see you again on other issues.
The committee adjourned.