Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 40 - Evidence
OTTAWA, Thursday, December 5, 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 10:33 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, this morning we are beginning with consideration of Bill C-45.
We had invited representatives of the Department of Justice to monitor the discussions that have taken place on Bill C-45 and to report any comments they may have about issues raised by individual witnesses. We hope, then, to enter into clause-by-clause consideration of Bill C-45.
Mr. Yvan Roy, General Counsel, Criminal Law Policy Section, Criminal and Social Policy Sector, Department of Justice: Madam Chair, I would like to begin by noting the presence of two colleagues. They would be available if there are questions in the nature of statistics or things of that sort from honourable senators.
Sitting at the table is Ms Lynn Cuddington, who is with the Correctional Service of Canada. She has been able to gather information and statistics, if there is a need to go into that this morning.
She is accompanied by Dr. Robert Cormier, who is Director of Corrections Policy at the Department of the Solicitor General. These are the experts regarding statistics. They are available if there is a need.
There are a couple of comments I would like to make, given what has been said to you by witnesses who have appeared before this committee. My comments are in the nature of trying to make sure the record is kept straight with respect to some factual assertions which have been made.
First, I note that you have raised the matter that a life sentence remains a life sentence, and I think it is worth reasserting. I understand that some witnesses have been suggesting that the sentence is changed through the mechanism of section 745.6 or through the eligibility for parole, be it at 25, 20 or 15 years. The truth of the matter is that people who receive life sentences are under a sentence for the remainder of their days. If they do something to contravene one of the conditions under which they are released into the community -- and that is for those who are released into the community -- they will be brought back.
Without giving names, we can cite cases of individuals who are spending their lives in prison, have been in prison for 30, 35, 40 years, and will most likely die in prison. A life sentence means life. That is a fact I would like to put squarely on the record so that it is well understood that this bill does not change that fact. This is a reality and this is a fact.
Senator Jessiman: Madam Chair, I think I asked for some statistics on that issue.
The Chair: You did, senator. Perhaps Ms Trottier has them for us.
Ms Jennifer Trottier, Senior Policy Analyst, Corrections Policy, Department of the Solicitor General: Yes. I sent them over on November 19, 1996.
Mr. Roy: The second point I wish to make has to do with things that have been said about the rate of failure. It seems there is some confusion between people who may be committing offences while on parole and the situation we are talking about where people who have been sentenced to a life sentence and are not eligible for parole until they have spent at least 15 years in prison, going all the way to 25, are committing crimes after they have been released on parole.
Again, "on parole" means that they can be brought back if they commit a crime and they will then have to continue serving their sentence in prison. In the cases of those who benefited from the mechanism contained in what was section 745 and has become section 745.6, 34 of them received some sort of remedy, for lack of a better word. They were allowed to return to the community. Out of those 34, none committed a murder after that.
We have not had that. We have had four cases where individuals have been brought back to the institution. In one case, the individual committed a robbery, was caught, and was brought back to the institution. In two other cases, the individuals are unlawfully at large. In the last case, there is a charge pending, and on the basis of that charge pending, the person was brought back to the institution. We are talking about a very few cases. In none of those cases was the crime of murder, manslaughter or something of that nature committed. That has not been the case.
I thought it important that the record be put straight so that it would be well understood that this measure before you is dealing with cases where there is some merit in having members of the community represented on the jury. There is merit for these people to go back into the community. The amendments being proposed by the Minister of Justice are tightening up even more that mechanism so that only those who have taken one life will be in a position to ask for the remedy provided in the future.
Those are my opening remarks, Madam Chair. My colleagues and I are available to answer, as best we can, any questions that you may have.
The Chair: One of the issues raised that has caused me some concern is this. Some have the impression that if the judge in doing the initial review approves of the review going to the jury that that would somehow send a signal to the jury that the judge is in favour of a reduction of the eligibility. One of the suggestions we had was that the reasons given by the judge as to why he allowed this going to a jury could be used within that jury proceeding.
Has there been any discussion of that nature within your department or any concern raised about the impression that this should receive a positive outcome because the judge sent it forward?
Mr. Roy: The analogy I would draw is with what judges who are presiding over jury trials are doing all the time -- that is to say, they have to make decisions as to whether a particular defence advanced by an accused should be presented to the jury. In those circumstances, the judge has to make a decision. He or she has to decide whether there is an air of reality to the defence that is presented. You cannot clutter the mind of the jurors by presenting all sorts of defences that have no basis whatsoever. Every day in this country, trial judges are making those decisions. They are saying, "Will I let the jury decide on whether there is a defence here or not?"
In a way, this is what the proposed section 745.6(1) is doing. The judge must decide on a test that is lower than on what the jury will have to decide. In other words, Madam Chair, a different question needs to be answered. The judge is deciding whether there is a reasonable prospect -- generally speaking, is there an air of reality -- to the application being made.
For example, in looking at the record of this individual, we can see that he has not changed in the last 17 years. He is as bad today as he was when he committed that crime. There is no real prospect that this person will gain the remedy for which he or she is asking. Therefore, on that basis, the judge will stop the case from going forward. However, it is not for the judge to decide whether this person is deserving of the remedy. If there is any problem with that lingering perception in the minds of the jurors that the decision has been made and they do not have to make a decision, I have no doubt that judges, in their charge to the jury, would give them a very strong signal that it is the jury's decision and not that of the judge. We are talking about two different decisions. One is at the level where they have to decide and the jury has to go much higher in its decision before it can give the kind of remedy about which we are talking. They are two different decisions. Judges are more than familiar with the distinction, for the reasons I have just given you. Defences which are presented to the jury are left to the jury only where there is an air of reality. That is a question of law, one for the judge to decide. It is the very same kind of mechanism we are talking about here.
Senator Jessiman: In listening to a number of the witnesses who experienced a loved one having been murdered, each one said they understood at the time that the sentence was life, 25 years minimum. It came as a great surprise to them that, 15 years later, they learned of this. In one case, the knowledge was gained through a newspaper or from a telephone call from a reporter who left a message on a machine.
To correct one part of this matter concerns a question of communication. I do not know how it should be done. In giving the sentence, even though the judges say that it is life and a minimum of 25 years, somehow they should have told the juries of the other possible outcomes. Obviously, they did not. Judges should say something to this effect in sentencing these people. If this were done, then the families of these victims would have known from day one that that was a possibility. I think it is incumbent upon the government to inform judges that they communicate these possibilities to the public when sentencing these individuals. It is something which has to be communicated to the people who are related to the victims. If they knew from day one that there was the possibility that the accused could be released after 15 years, they would not have to go through the trauma all over again.
How does one in the Department of Justice communicate with their judges? I do not know what the procedure would be. I think it should be incumbent upon the Minister of Justice to convey that to the judges who are working under him.
Mr. Roy: We heard, as you did, senator, the testimony of these people. It is certainly not an answer to their concern to say that no one should ignore the law. I think that would be extremely cynical on our part if that was the response we had for these people. Therefore, that is not our response.
I think there are at least a couple of ways to address this situation. Their concern has to do with them not having the information. In the circumstances of a trial for murder, that information may be coming from the judge himself or herself or from the Crown. The Crown prosecutor could also be tasked with telling the victim's family, "Listen, this is how it works."
Two things can be done. The first is that, perhaps in your report on the bill, you may want to indicate that judges would be well advised if they were to say something like this to the victim's family at the time of sentencing. We could take it upon ourselves to discuss this matter with the provincial attorneys-general. As you all know, cases of murder are prosecuted by the provinces. Attorney General Harnick was here, and I am sure he would not be adverse in any way, shape or form to something like this being done.
We have regular meetings with senior officials. Our minister is to meet with his colleagues in February. Perhaps this is something they would like to put on the agenda in those cases to get Crown attorneys to speak with the victims' families. It is difficult enough having to go through a case like this. When you find out 15 years later that something else has happened, it must be extremely disconcerting.
At the very least, Crown prosecutors would be tasked by their masters to give that kind of information to the victim's families at the time of sentencing or before so that at the very least they have that information. If you are asking us how we would try to force judges to do this, I am not sure that this would be the right approach. From your reaction, I see that you share my concern. I will not go any further, then.
Senator Jessiman: The Attorney General for Ontario made a suggestion that you either add a new step or substitute the first judge hearing the case by referring the matter of early release to the Minister of Justice of Canada. Have you spoken with the minister in respect of that or do you have anything you can tell us about how that might be received?
Mr. Roy: I have not discussed this matter with the Minister of Justice.
How do I see this? Quite candidly, it seems that some decisions are, and must remain, in the realm of the judiciary. It is not a matter, in my humble view, upon which a representative of the executive should make a decision. This is in the nature of a judicial issue that must be dealt with by the judiciary.
In answering a question that the chairman put to me, I indicated that I see what the judge does with respect to the screening process as being in the nature of what judges do all the time concerning defences. Is there an air of reality to that defence? This is the same thing. If I am right in my analogy, clearly it must be done by a judge and certainly not by someone who is in the business of acting as a minister of the Crown. Therefore, generally speaking, it is in the political domain. A person who is completely impartial should make a decision such as this in order for everyone in the system to be satisfied that it was done justly and it appears that it was done justly by someone instead of being done by a minister of the Crown, who may have other considerations in mind or may not have other considerations in mind but will be accused of having them when he or she is making the decision.
Senator Jessiman: Explain this to me, if you will. He also said that in Ontario -- and this is in relation to a person being declared a dangerous criminal -- the application is handled not by the judiciary but by the Attorney General for the province of Ontario. Where is that found? Is that something contained in provincial law or something in the Criminal Code?
Mr. Roy: No, it is in the Criminal Code. This type of application is made under Part 24 of the Criminal Code to have someone declared a dangerous offender. This application is made before the person is sentenced for the crime for which that person was tried.
Before this type of application is made -- and this requirement is found elsewhere in the Criminal Code -- the Attorney General must give his or her consent. This is a different issue from the one we are discussing here with respect to Bill C-45.
Senator Jessiman: Is it really different? In one case it is exactly the opposite, is it not? In this case, there is an application for early parole. You are saying "You committed this terrible crime, received a life sentence, and now someone must decide the penalty." Without the faint-hope clause, our law says that that person will remain in custody for 25 years minimum. However, when that law came into effect in 1976, they could be released earlier. Today, they are not looking at it from the point of view that this person was a dangerous offender at the time this brutal murder was committed. Approximately 15 years later, this offender's attitude has changed, and you are now looking at rehabilitation. I do not see that. It is exactly the opposite. In one case they are saying he is a dangerous offender. I assume that a dangerous offender stays for a longer period of time, does he not?
Mr. Roy: In the case of a dangerous offender -- to use a misnomer -- a life sentence would be imposed. On the basis of the present Criminal Code, a person can make an application for parole after three years.
The minister just tabled a bill which is now in the other place. Hopefully, it will end up before you one of these days. He is raising this to seven years in Bill C-55. The minister appeared on Tuesday before the committee in the other place responsible for these matters. It is moving forward.
I wish to return to the difference between what Bill C-45 is doing and what we are talking about when we use the term "dangerous offenders." In the case of dangerous offenders, the Attorney General is giving his or her consent to something that must be done by his or her representatives. In other words, he is consenting to the Crown prosecutor going forward and making that application.
In Bill C-45, the Crown is not doing anything. It is the accused who is taking it upon himself or herself to make an application. It is not the Attorney General giving a mandate to one of the lawyers working for him; it is the other way around. It is the accused. We are asking the Attorney General to make a decision on whether an application made by someone else is valid. That is why I said this is in the nature of a decision to be made by a judge, not by the executive. In the case of dangerous offenders, he or she is giving instructions to his or her lawyers to go before a court and make an application. They are two completely different situations.
Senator Jessiman: They are different but one is on this side and the other is on that side. That is a decision he must make. I think that has some merit.
Senator Beaudoin: My question concerned retroactivity, but we will return to the difficult problem that you raised with Senator Nolin.
We heard testimony on the question of retroactivity. In my opinion, it is not clear cut. I should like to know a bit further from you about what is and what is not retroactive in a criminal law matter such as this one. Usually, if we change the law after a sentence or a judgment of the court, there is a principal that we apply to the sentence. However, if we abolish the death penalty or reduce the sentences, what happens for those who are now serving their sentences? In the case of capital punishment, there is no problem because it is over. It may even happen that it is not over because of the appeals, and so on.
I should like to be sure about the situation if we apply those principles to Bill C-45 . My guess is that if it is to the advantage of the accused, then retroactivity may apply. If it is not in favour of the accused or the person who has been found guilty, then the retroactivity will not apply. However, as is the case in many fields of law, it is not that simple. Are you in a position to say what is retroactive and what is not retroactive in that bill?
Mr. Roy: I will take a stab at that. I am sure that Mr. Bebbington will want to expand on my answer. Hopefully, he will not contradict my answer.
As you know, there are three basic features in this bill. With regard to an individual killing more than one human being, it is understood that this will apply only prospectively. There is no reason to think -- and if we were to think this way there would be a good chance that this would be unconstitutional -- that this provision works retrospectively or retroactively. This will apply only prospectively.
Senator Beaudoin: Meaning for the future, and that is if a person has committee more than one murder.
Mr. Roy: An individual who has killed more than one human being will not be able to benefit from the mechanism of section 745.6, but that is only prospectively. Those who have killed more than one human being prior to the coming into force of this legislation will not be affected by this legislation.
Senator Beaudoin: That is clear.
Do you agree with that, Mr. Bebbington?
Mr. Howard Bebbington, Counsel, Criminal Law Policy Section, Criminal and Social Policy Sector, Department of Justice: I agree.
Mr. Roy: So far so good.
There are two other features. There is the screening mechanism. We have already discussed what the test is and whether it is appropriate to have something like this. There is also the unanimity of the jury to make a decision in those cases.
There are basically three big features in this bill. The first, with respect to retrospectivity, is out of the way. We think there is a very good argument to be made that the screening mechanism and the unanimity of the jury are retrospective. In my view, that means that at the moment this bill becomes law -- if it does -- juries will have to decide these issues on the basis of unanimity rather than only 8 out of 12. Also, judges will be asked to screen cases which come after the coming into force of this piece of legislation.
To illustrate my point I will use the case of Mr. Clifford Olson. Had this bill become law in June when it was tabled, Mr. Olson would have had to go through the screening mechanism in section 745.6(1) when he made his application for a review in August of 1996. However, because the bill has not become law, that will not be possible because he is already in the system. He has already made his application. Those who make applications after the coming into force of this bill will be caught by this provision.
Senator Beaudoin: It is retroactive in that case.
Mr. Roy: Yes.
Senator Beaudoin: In two cases it is retroactive, in the screening mechanism and in retroactivity.
I agree with the three main parts of the bill -- more than one murder, the screening mechanism and the unanimity of the jury. The first one is for the future only. The other two are retroactively applied. In other words, the law comes into effect at the very moment, and if sentenced persons have not put the mechanism into effect, they are bound by the new law.
Mr. Roy: Exactly.
Senator Milne: It would catch Bernardo.
Mr. Roy: It would apply in the case of Paul Bernardo, if he ever makes an application. He would have to go through the screening mechanism, and the jury would have to be unanimous before he would be able to make an application for parole.
Senator Jessiman: I would think the screening process would be upheld by the courts. I doubt that the unanimity would be. That affects the rights of individuals.
Senator Beaudoin: My question is on the three. This being said, you do not see any Charter problem of fundamental justice under section 7.
Mr. Roy: Senator Beaudoin, you know better than I that there is always a charter argument which can be made. There is risk associated with this. You know that under section 4(1) of the Department of Justice Act, the minister must be satisfied that the provision is constitutional. In this case, the minister is satisfied that it is constitutional because there is a good argument to be made that it is a reasonable measure.
Senator Beaudoin: And acceptable in a free and democratic society. His opinion is that it complies with that.
Mr. Roy: His opinion is that it complies with the charter. There is always a risk. I agree with Senator Jessiman that there is a risk with this, but that risk is manageable. We think that if we have to defend this before the courts, we will have a successful result on the basis of the jurisprudence as it is today.
[Translation]
Senator Nolin: Senator Jessiman mentioned the testimony of the Attorney General of Ontario. It was revealed that this proposal had been put forward during a federal-provincial conference of attorneys general and that it had received the support of a significant number of provincial ministers. The Minister of Justice, however, did not deem it advisable to back this proposal which would have introduced an executive mechanism to the judicial process. Before the Justice Minister in fact rejected this proposal, did you evaluate whether or not it was consistent with the Charter provisions? Did the Department conduct any studies or was it simply a case of the Minister rejecting the proposal? I came to the same conclusion as you did, namely that this decision should remain in the realm of the judiciary, not the executive. However, since the start of the hearings, all of the witnesses -- aside from those who, given their profession, have been involved in the process since 1945 -- have appeared either to be misinformed or to doubt the credibility of the parole process. They argue that either justice is being denied, since the Criminal Code contains two contradictory provisions, or that someone is cheating the system and justice is not being served.
I found the proposal of the Attorney General of Ontario, a proposal which essentially is identical to that of the Attorney General of Manitoba, as we saw from Mr. Harnick's testimony, to have a soothing effect, at least in so far as the public is concerned, since the latter has been kept completely in the dark about the existence of section 745.
I found this proposal to be interesting, coming as it did from a minister who is accountable to the electorate. However, if it does not pass the Charter test, there is no question of our considering it any further.
The provincial attorneys general are responsible for enforcing the laws passed by Parliament. When a proposal such as this receives the support of a significant number of provincial attorneys general, I believe it warrants further consideration.
Mr. Roy: I will do my best to answer your questions. I believe you had more than one. Referring to the testimony of the Attorney General of Ontario, you indicated that a proposal was put forward during a federal-provincial conference. I do not wish to imply in any way that the Attorney General of Ontario made a mistake. I do not know if that was the case or not, but let us work from that premise.
I cannot confirm it, because I do not know. I can tell you that when this mechanism was examined and discussed with the minister -- because before including this in a bill, it must be discussed with the minister --, the possibility of a member of the executive acting as a sort of "screening mechanism" was mentioned in passing.
Senator Nolin: I would use the word "tamiseur" in French.
Mr. Roy: That is even better.
Senator Nolin: I believe it accurately conveys the meaning.
Senator Beaudoin: Fine.
Mr. Roy: As we proceeded to do our analysis, several problems quickly came to light. First of all, could the Attorney General of the province act in this capacity? We can all see that there is a potential for a major conflict of interest, because not only will justice not be served, there will certainly be an appearance that justice will not been served because the provincial attorney general was the one who prosecuted the individual 15 years earlier. Now he is being asked to decide whether or not this person can file an application. I think that any reasonably informed person would say: Do you not think that there is an appearance of possible bias in this case?
A reasonably informed person, applying the Supreme Court test set down in 1978 in a case involving the National Energy Board and a potential bias, would look at the situation and say: I see a problem, an apparent conflict. You cannot prosecute a person and then 15 years later, be the one to have to decide whether or not he can make an application.
This brings us to the next question: perhaps the Attorney General of Canada should be the one to rule on this. I believe this is what is being proposed. However, the same problem would arise in the case of the Northwest Territories and the Yukon. The federal Attorney General is responsible for prosecuting persons in these two territories. Therefore, technically speaking, we are no further ahead in saying that this responsibility should be turned over to the federal Attorney General, because if the murders were committed in the Territories and in the Yukon, this individual could not prosecute the cases for the same reasons given earlier for the provincial attorneys general.
Senator Nolin: Still on this subject, perhaps you can answer this question. What was the intent of the legislators in 1976 when they introduced section 745? In my view, the idea behind this provision was to reduce the period of ineligibility. It is not a matter of calling into question the charge or the murder. The person's guilt has already been established. The issue is whether or not the penalty or sentence should be reduced. Which jurisdiction is responsible for this? Clearly, sentencing comes under federal jurisdiction. Who then can politically assume, as a member of the executive, this responsibility? That was the idea behind the proposal.
I understand your question regarding conflict of interest. If the Minister of Justice has been ruled out, then perhaps this responsibility could fall to the Solicitor General.
Mr. Roy: That is a different area. Let me finish what I have to say and then I will come back to the Solicitor General.
Regarding the Attorney General, under our system of constitutional law, the role of the Attorney General is above that of other ministers. In keeping with the tradition of British law, the Attorney General's role is quasi-judicial in nature. He must act independently of his colleagues in prosecution matters.
He must rise above the debate and make decisions, notwithstanding the wishes of his Cabinet colleagues.
This position comes with certain requirements. At the very least, the Attorney General has the advantage of elevating the debate somewhat.
The debate would not be the same if this task was entrusted to the Solicitor General or to the Minister of Foreign Affairs or to someone else. I say this with all due respect for other ministers. All I am saying is that the Attorney General's job is different.
In the vast majority of cases, if not in all cases, attorneys generals know that they must set aside political or other considerations.
Regarding the problem I alluded to in the first part of my answer, the hope was that the problem could be skirted by entrusting the responsibility to act under section 745.61 to the Attorney General of Canada and that as a result, the potential for a conflict of interest, as I mentioned earlier, could be avoided. However, the problem lies in the appearance of a conflict of interest. The general public would then face a dilemma. A person was prosecuted and 15 years later, a decision must be made. Is it appropriate for that decision to be in the hands of the federal Attorney General? When we examined this issue, we felt that this was not appropriate and the minister agreed with us.
That brings me to the second part of my answer. There is also the whole issue of what is appropriate for the executive and what is not. Briefly, I would like to recall what I said in response to Senator Jessiman's question.
Many criminal code provisions require the consent of the Attorney General before a judicial procedure can commence. The best example of this is the case of the dangerous offender. However, in these instances, the Attorney General issues direct instructions, that is he instructs his Crown attorneys to take legal action against someone. It is a case of the Crown issuing instructions to the Crown. Section 75.61 provides for the exact opposite situation. An accused says to the Crown: I want to take my case before the courts, and the Crown, which has an interest in this matter because it will intervene when the matter comes before the courts, would have the power to turn down this person's application.
On the face of it, this appeared to be intrinsically inequitable to the minister. If only it were a case where the Crown was instructing someone to do something. However, in this particular instance, we have a situation where it is the accused who is making an application under the law. The law provides for a test which says that a reasonable prospect must exist that the application will be received. Someone must rule on this test.
The process is not totally objective and some adjustment needs to be made. Does this person stand a good chance of having his application received? We are telling the accused to go before a judge, where the bar will be set and the executive will decide. The Minister of Justice agrees that this is not fundamentally the role of a representative of the executive, but rather the role of the judiciary. It is up to a judge to decide, using the legal test developed by Parliament, whether the accused meets the standard and can proceed to the next stage.
To use the same analogy as I did in my answer to the Chair, this test closely resembles the air of reality principle invoked in a criminal trial. Before a defence is presented to the jury, the judge must decide if the defence has an air of reality to it. Is there any supporting evidence?
It would be like asking the Crown prosecutor in the course of a trial whether an air of reality exists. If the Crown prosecutor agreed that one did exist, the judge would issue instructions and let the case move forward.
We believe that it is the fundamental role of the judiciary, not the executive, to determine the interests and rights of the parties. Essentially, this is why the decision was made to ask a judge to assume this responsibility and to decide whether a minimum standard has been met, in light of all the circumstances presented to him, albeit on paper. There is no question in this case of holding public hearings.
Senator Nolin: The problem is the perception the people have of section 745. Apart from the people who deal with it in their professional lives and those who work at the Department of Justice, the rest of the public, so the lawyers tell us, is unaware of the provision's existence. That is why I have a problem. Of course I want the rules of natural justice to be respected. However, I have the impression that the public interest is ill served when it comes to enforcing section 745. I understand the reason for this provision. We have heard the testimony of the Canadian Bar Association, which was well documented and supported I might add, and their recommendation that we leave section 745 alone. The fact remains that the people we are here to serve do not believe in the process. That is what worries me.
How can we protect rights? Let us consider first of all the 25-year sentence. We understood that the Supreme Court could have ruled that a 25-year sentence was cruel. Section 745 has a tempering effect, although we do not have unanimity.
Mr. Roy: This is the direction in which we are heading.
Senator Nolin: I have not read it, but we have jurisprudence which says that section 745 has tempered the cruelty of a 25-year sentence and this has satisfied the Supreme Court. We agree that few Canadians understand or have reflected upon the cruelty of a 25-year sentence or on the tempering effect that another Criminal Code provision may have. Public perception is always something with which we have to contend.
Today, we are being asked to bring in a tougher measure, still in the interest of the public. The public has told us that it does not believe in the process. This worries me. I hear professionals saying that we should leave this provision alone and that the system works well. The public, on the other hand, tells us to look at the statistics and says that it does not believe in the process. The provincial minister has made a proposal to the effect that a person invested with ministerial responsibility should defend this decision for the sake of the public interest. This is an interesting proposition.
Can we not look a little harder at our legal principles and try to find a reason for a proposal such as this? Surely, there are many arguments that can be brought forward as to why this proposal is not a valid one.
Mr. Roy: I can assure you that the minister shares your concern. Moreover, this was one of the reasons why he decided to bring in Bill C-45. Did he act to counter a lack of confidence in the process? I think the answer to this is clearly no.
This brings me to some studies conducted by two criminologists, namely Tony Doub from the University of Toronto and Julian Roberts from the University of Ottawa. They invited members of the public to sit down in a room and read some newspapers.
Participants in the study were asked to read an account of a trial and of the sentence imposed. Because of space limitations, the newspaper article left these people with the impression that the sentence handed down did not really fit the crime.
Once they had read the published article, the same group of individuals was made to read the actual trial transcripts and the evidence presented. Not only did the majority of the participants say that they were pleased with the sentence, they even found it a little harsh.
Senator Nolin: We heard this testimony.
Mr. Roy: You heard it and you perhaps also read the study in question because it was published.
Senator Nolin: You can understand our confusion upon hearing this.
Mr. Roy: Absolutely. Senator Jessiman hinted that some people were not even aware of this provision. He wondered if there was perhaps not something that could be done. I humbly suggested to him that perhaps your report could recommend that more information be communicated about the sentencing process.
The Minister of Justice could undertake to discuss this matter with the provincial attorneys general and could instruct Crown attorneys prosecuting murder cases to inform the families of victims who have already suffered because of their experience about the possible outcomes of the sentencing process.
At some point, we must demystify the process. There should be no surprises 15, 17 or 20 years down the road. We have to tell it like it is. I was saying to Senator Jessiman that it would be an extreme case of cynicism on our part to respond to these concerns by saying that no one is supposed to ignore the law. That is a terrible way to respond.
Senator Nolin: Even lawyers do not like to be told that.
Mr. Roy: This was a concern of the Minister. He came to the conclusion that the mechanism provided for in Bill C-45 was open to too many undeserving cases and in order to tighten up this provision, he is now saying that persons who have killed more than one person should not be entitled to make such an application.
I think that Canadians have responded positively to this proposal. Those who wish to make an application will have to apply to a judge who is impartial and who is called upon to make this type of decision day in and day out.
Now that there is a chance that the legislation will be amended, provided honourable senators agree, there is work to be done to demystify the process so that people know what is involved.
Not only do we need to demystify the legislation in the eyes of the general public, but in murder cases tried in this country, we have to be able to let the families of victims know what the situation really is. There is nothing wrong telling people what the law is.
[English]
Senator Milne: Madam Chair, I may cover some of the same ground covered by Senator Nolin.
One of the gentlemen who appeared before us was Professor Healy. He stated clearly that if it ain't broke, don't fix it. There is no evidence that the present system is a failure. Therefore, we should not be monkeying about with it.
Professor Roberts, whom you quoted, had an interesting response to that. He said that the current policy is sound, but to make it more durable we must make it more palatable to the people. Do you consider this law as it is before us right now a reasonable effort to do that?
Mr. Roy: There is no question that in the view of the Minister of Justice this bill is more palatable because it will address the cases that may be deserving of a remedy, taking for granted that someone who has killed more than one human being should not receive the benefit of this measure. It must also be taken for granted that it is appropriate for a judge to tighten the system by saying that only those cases in which there is a reasonable prospect of success should go forward.
The minister thinks that Canadians will see this as being more palatable, even though a number of people will say, "No one who has killed someone should ever be released from prison, let alone be released after 15 or 25 years." The minister thinks that this will bring a new balance to the system, something which Canadians will recognize as appropriate.
Senator Milne: Have you said that Bernardo will be caught by the last two clauses of this bill?
Mr. Roy: He will be.
Senator Gigantès: What about Homolka?
Senator Milne: She is not covered by this bill.
Mr. Roy: Karla Homolka was found guilty of manslaughter and received 12 years in prison. The proposed section 745 will not apply to her situation.
Senator Milne: One of the witnesses from the Province of Ontario, Mr. Harnick, stated that it was his conception that "life" does not actually mean "life," something about which you have already commented today. As well, he thought it was inappropriate that a second jury should be able to reverse the decision of the jury which sentenced the inmate in the first place. Perhaps I have missed something here. I do not believe that a jury sentences criminals in the first place. They find them guilty and then the judge does the sentencing.
When a person is convicted by a jury, I want to make absolutely sure that that conviction cannot be overturned under this section.
Mr. Roy: I will ask Mr. Bebbington to answer this question. He was here when Attorney General Harnick testified. I was not.
Mr. Bebbington: Senator, the short answer to your question is "no." The jury is responsible for the conviction, not for the sentencing. In no part of the system is that more true than it is with respect to murder. The penalty for murder is a mandatory penalty. The judge does not have a discretion with respect to such a decision. If it is a second-degree murder conviction, then the jury may make a recommendation about parole and eligibility. The judge has a small discretion in that regard. However, the life sentence is mandatory in the case of first- and second-degree murder.
With respect to first-degree murder, there is no discretion either in the jury or in the judge to change that. I have heard it argued a great deal that the section 745 jury is undoing the original jury's work. I disagree with that entirely, partly because the jury has no discretion or ability to have input on the penalty for first-degree murder. The conviction always brings with it the consequence of the involvement of section 745. The decision which the jury under the proposed section 745.6 is asked to make is extremely different from conviction. In fact, the case law tells us that the courts instruct juries not to reconsider the original conviction.
The question for that jury, 15 years after the fact, is whether the individual has changed enough for society to warrant granting some leniency in the sense of allowing the parole board to consider the appropriateness of some form of graduated early release.
Senator Doyle: Like other members of the committee, I am concerned about the relatives and friends of victims who have appeared before us and before other public forums and who have been widely quoted about their disappointment that after having believed that we would keep some of these individuals out of circulation for 25 years, we are now holding forth to see if, perhaps, they should not be allowed to go free after 15 years, or whenever, in certain circumstances.
This morning we had a discussion as to whether we needed to be sure to tell these people at the time of the first trial about the prospects and what the true situation would be and whether there would be an opportunity down the road for the person to be released before the promised 25 years. That seemed to be sensible and useful. It is necessary to demystify what we are doing in our court rooms.
Who will be brave enough to say to the man who is sentenced tomorrow to 25 years, "But it will not be 25 years, maybe it will be 15. It will not be anything other than that." Who can say what will be agreed to by next year's committees?
Justice, as we practice it, changes to fit the mood of the country, of the judiciary and of the political system itself. Who can promise today that an exact sentence will be carried out? If we were to recommend that exact sentences always be exact, we may be putting a strait-jacket on what we can do in the future; or, as one of our witnesses wonders, we may be inviting the return of the death penalty. That may be what some of us fear. However, we should not go into that process without careful thought.
When we are demystifying, just how far can we go?
Mr. Roy: The problem we have encountered is people saying, "I never knew that this was the situation. I never knew that 15 years after that person was convicted for the murder of my father, he would be able to go before a jury and ask something which I do not even understand. I seem to understand that they go before a judge and then they are out on the street." We are talking about two different things here.
One is to demystify the process by telling Canadians clearly what this process is all about. First, you go before a jury and you must satisfy that jury that you have changed, at which point the jury does no more than say, "Instead of having to wait until you have served 25 years, you can go to the parole board." That may or may not grant you parole. Canadians, and in particular the families of victims, must know how it works.
Another thing that can be done is that the families are told at the time of sentencing what the law is. I am not suggesting that we go any further than that. However, people do not know what the law is, and I feel that there is nothing wrong in telling Canadians this: This is what we have in the statute book. This is what the law is. This person is sentenced to life. Life means life. This person has committed murder in the first degree. Therefore, according to the law, that person will have to serve at least 25 years before they can apply for parole. However, if that person has changed, they have a opportunity, by statute, to ask a judge first if they have a chance of winning that application, and then they will go before a jury.
It is only fair for the families of those victims to know this so that 17 or 18 or even 20 years later, when that happens, they will remember that the Crown prosecutor told them 20 years ago that that was a possibility. Most Canadians will see this as being a humane way of dealing both with the victims and also the accused.
As we have tried to say many times, people change over time. Some people are able to turn their lives around. Perhaps it is appropriate -- and this is what the Minister of Justice is saying -- for these people to have a chance to go back before their peers and say that they have changed. "Here is what I have done in the last 15 or 20 years to change my life; give me a break."
Senator Doyle: I understood what you were saying the first time you said it. However, having done that, who can guarantee that 15 years from now the law as you described it will still apply? The law is like a pendulum which moves with the times. There are times when the law becomes gentler; there are times it becomes harsher. No one can give any guarantee of what the law will be 15 or 25 years from now.
Senator Pearson: But you can say what it is now.
Senator Doyle: You can say what it is now. However, in some cases, I think that was understood by some of those who now find it shocking that the law has changed since their case was before the court.
Senator Pearson: The law has not changed. The problem is that they did not know about it.
Senator Doyle: I do not see how we can guarantee a safe passage for tomorrow's grieving relative.
Senator Pearson: Nothing is guaranteed.
Senator Doyle: That is where I think we are. We are spending a lot of time that we do not need to spend.
Senator Gigantès: I have the feeling, with all due respect to my colleagues, that we are mixing the political process and the law.
The people have the right to elect a group of persons who may or may not say that there are some laws we shall change. That is what was meant originally when democracy was invented, namely, that the will of the people is the true supreme court. Of course, the law may become harsher because the public will elect someone who promised to make it harsher. However, the law may also become milder.
The question of perception should not impinge upon the mechanisms of justice; it should only impinge upon the electoral process. You were saying, Senator Nolin, that it is a question of perception. If the public perceives that the way the law as applied is wrong, then they will vote accordingly if it is the predominant issue in their mind. The public does not vote on any one issue, or it is very rare that that happens. However, if it is the predominant issue or a strong enough issue, it will be reflected in the way they will vote. It should not be reflected in the way a judge functions, or whatever is around the judge. We invented the system of justice that we have historically to isolate it from the electoral process. It is dangerous to think otherwise.
Senator Nolin also said:
[Translation]
Perhaps we need to find a solution that will calm the public's fears.
[English]
It is not part of the law to appease the population. Explaining what the law is is fine. The people who have been elected, to some extent, can change the law with perception in their mind. There is no doubt that perception has played a role in the tightening of section 745. However, these are the elected people who are taking the decision. They can change the law.
We must keep the two compartments totally distinct -- the functioning of the judicial system and the law-making. The functioning of the judicial system must not consider appeasing the public. That is for politicians to do.
[Translation]
Senator Nolin: That is exactly the suggestion I made, Senator Gigantès. What we are doing here is examining the legislation.
Senator Gigantès: We have a majority government, just as the Conservatives had an elected majority in 1984 and in 1988. This government has a responsibility to formulate legislation.
Senator Beaudoin: Not the government, Parliament.
Senator Gigantès: You are correct. This is Parliament's responsibility.
[English]
The Chair: I would rather have this discussion when we do not have the departmental officials before us. This issue is very political in nature. Given the nature of their positions, I suggest that the witnesses would not want to reflect a decision.
Do you have a particular question for the officials, Senator Gigantès?
Senator Gigantès: Do you feel that the judicial system should function the way it functions without the judicial system, not the Attorney General, considering such things as perception among the public or appeasement of general opinion?
Mr. Roy: One of the very foundations of our society is that the judiciary must be independent in order to decide on conflicts between the state and an individual. This is recognized in our Charter of Rights and Freedoms, and it has been recognized in our system for however long back we may wish to go. It is essential that judges be able to make a determination without having to feel that there is pressure coming either from one side of the issue or the other, judging these cases in good conscience.
The minister felt that, in this particular case, the best way of resolving these conflicts, whatever they may be -- when someone is raising the fact that he or she has a right to do something -- that this be arbitrated at the end of the day by a judge and not by a member of the executive, not the attorney general or any other high official in our country.
The minister feels this is a job for the judges who are independent of political pressure or any other pressure except decision-making on the basis of the law.
To answer your question more specifically, yes, Parliament is making the law. In cases where there is a conflict between the state and an individual, the minister feels it should be done by a judge and by no one else.
Senator Lewis: As I understand the suggestions under the bill, a convict may make application. The judge will screen that application and it goes to a jury. The jury can then decide. However, under this suggestion, it is theoretically possible that there could be a series of applications by a convict. In other words, it provides that the judge or the jury may set a time limit in which another application can be made, but in no case may it be made in less than two years. Theoretically, there could be a series.
Mr. Roy: Yes.
Senator Lewis: Our committee has heard from families of victims who described the trauma they suffered in attending these application hearings. I suggested the bill could be amended to provide for an absolute limit on the number of applications. I preferred that it be a one-shot affair. If the convict takes the chance of making the application, he had better be sure that it is a good application with a chance of success because, if he fails, then during the rest of his sentence, he cannot make another application.
That seemed of interest to the victims' families, but, on reflection, I can see some difficulties. You may not have had a chance to give this much thought, but what would be your reaction to that suggestion?
Mr. Roy: If I have not given that enough thought, my colleague Mr. Bebbington has. He has been thinking about this.
Mr. Bebbington: Under the law as it exists now, quite apart from our bill, the same thing can occur. It has occurred. Juries have said to particular applicants: We deny your application and you may not apply again; we do not want you returning here.
Under our bill, there will be two opportunities for that to occur. The screening judge may decide that the applicant play not apply again. If the application goes before the jury, that jury may make the same decision. They may say: You may not come back again.
Our bill also allows for the possibility of further applications after a two-year waiting period. This is important because there will be cases where the individual has shown some change in his behaviour, some propensity to become a law-abiding citizen. However, where the jury feels that this individual has not yet reached the stage where their ineligibility period should be reduced, under this bill, the jury may say that they are not prepared to grant a reduction at this point but that they believe the convict has some hope if he keeps going the way he is going and that he should come back again in two, three or five years.
Our bill allows for that opportunity, but it allows two opportunities for, in one case the screening judge and in the other case the jury, to say that the application is so "unmeritorious" that the inmate should not bother anyone with it again.
Senator Lewis: If that were the case, it might have a psychological effect on the judge or the jury. They may think they need to be more careful in turning down the application. That was one of the problems with the death penalty, namely, that a jury would be faced with an absolute. The tendency would be to look for some way to say the person was not guilty, or they would convict them on a lesser charge.
Mr. Bebbington: When the decision is so stark, it tends to add other considerations. In this case, our proposals are flexible and will allow the jury to do what they believe is the right thing, given the case and evidence presented to them.
Senator Lewis: I am glad to have your comments.
The Chair: We have finished with our examination of witnesses this morning. Thank you. You are now excused from the table.
Honourable senators, we will now move to clause-by-clause consideration of Bill C-45.
Before we begin, because I tend not to ask many questions nor give many comments, I should like to put something on the record, if that is acceptable.
I do not particularly object to clause 745.6 as it sits at the present moment. However, I do recognize that there is a public perception that it is not tough enough. It seems the Minister of Justice has also come to that conclusion. I will support the thrust of Bill C-45, but I must admit that I tend to fall within those who philosophically say, "If it ain't broke, don't fix it." I want the record to show that.
Do other senators wish to place something else on the record?
Senator Gigantès: This is a personal view based on my studies as a historian: Democracy is not a search for the compromise which is acceptable to most people but for that compromise which disgusts the least number of people. That is why democracy is often blamed by absolutists for not being principled.
This seems to me a perfect example of a compromise that will disgust the least number of people. Of course, it will disgust the victims. Of course, it will disgust the John Howard Society. On the whole, the political process here is doing a little tinkering with the law which, somehow, may improve the perception of the public, especially as this demystifying goes on.
At the beginning, I felt as you do, Madam Chair, that "If it ain't broke, don't fix it." It seems this is an adjustment which may correspond to the will of the people as expressed by their elected representatives. Therefore, I will support the bill.
Senator Pearson: I would like to support your position, Madam Chair. I have the same sense. I was impressed by some of the presentations about the fact that it was not really broken. I have learned a great deal in listening to the discussions. I feel strongly, as we all do, for the families of the victims, but I feel very strongly for the families of all concerned.
It has been demonstrated to us that this is a compromise which has some problems but is the best thing under the circumstances.
Senator Milne: If it meets the agreement of this committee, I move that we report the bill without amendment. I also intend to make a further recommendation about the impact on victims after that.
The Chair: It is moved by Senator Milne that we report the bill without amendment. Any discussion? All in favour? Against? Abstentions?
Senator Nolin: I abstain.
Senator Doyle: I abstain.
The Chair: The motion is carried. The bill will be reported without amendment.
Senator Milne: I move that this committee recommend that truth in sentencing should be a paramount consideration of the judicial system. The lack of knowledge and the understanding of the Canadian people of the present section 745.6, and now the amendment, is vast. Greater understanding must be achieved. To that end, we should urge the Minister of Justice to use any measures at the disposal of the ministry to inform the public about this section, including discussions with provincials attorneys-general, so that together they can find the means to give to victims' families the full knowledge of the history and the meaning of section 745.6.
Senator Gigantès: Senator Milne knows of my great respect for her and I fully agree with her sentiment, however, the text needs some work.
Senator Milne: I agree.
The Chair: This has been quickly put together. Does the sense of it meet with the agreement of the committee?
Some Hon. Senators: Agreed.
The Chair: Will you leave it up to your steering committee to give final approval to the wording?
Some Hon. Senators: Agreed.
The committee adjourned.