Justice Committee on Nov. 4th, 2009

[Prof. Allan Manson, Professor, Queen's University, Faculty of Law, As an Individual]

Thank you.

Good afternoon. I regret to say that I am not bilingual. I will therefore have to present my ideas and give my answers in English only.

I am here because I'm very concerned about this bill. It will place our sentencing regime, aside from those of countries that still execute people, among the harshest in the world and certainly in the western world. When I look at the minutes of the testimony, which I've read, particularly the testimony of the minister and those supporting the bill, I see no basis and no evidence for these amendments.

I see constant remarks saying, “This is what Canadians want.” I also see remarks about victims. I'm very respectful and sympathetic to victims, and I'll address that in a second, but I dispute the statement that this is what Canadians want. Just because you repeat something over and over doesn't make it true.

It's my view that if we look at the history of criminal law in Canada, the history of murder sentencing and what this Parliament did in 1975-76, what it did in 1997, and what this committee did in 1975-76, I would say Canadians respect the vitality of the human spirit. This legislation does not. This legislation wants to turn penitentiaries into ashcans of human wreckage.

I have studied this 15-year review process. I've written about it. I've been counsel in two cases and advised a number of lawyers, so I can talk to you if you have questions about how these processes work.

You've heard a lot of data. I'm not going to go through much of that again. I did prepare a submission. I had only a few days' notice about this hearing; I hope it's been translated. I'm not sure if it has, but you will have it.

The key is this. This process was created in this committee on a motion by a member named Stuart Leggatt in the spring of 1976. The original proposal for the 15-year review arose like this: the Solicitor General, who was Warren Allmand at the time, had his people do studies of Canada's experience as well as the international experience with the release of murderers. The data suggested around 10 to 15 years as the effective minimum ineligibility period.

Of course, if capital punishment was abolished, there would be a mandatory life imprisonment sentence. We're only talking about parole eligibility. The Canadian Association of Police Chiefs had taken the position that they supported retention, but if capital punishment was going to be abolished, they felt the minimum should be 25 years. It was in Warren Allmand's office that they came up with the idea of adopting 25 years while creating a window after 15 years. They took the view that the decision should be made by three judges.

It was in this committee that Stuart Leggatt said, “I was a practising lawyer; I trust juries.” This committee amended the bill to give the decision-making role to juries. These are Canadians, and if you look at the statistics from every province, while sometimes you see a number saying that 83% succeed, that's completely disingenuous and misleading, because in fact fewer than 19% of eligible prisoners apply. There is a process of self-selection.

I haven't done it for the past few years, and I regret that, but I used to travel to lifers' groups in the various penitentiaries around Kingston to explain this provision to prisoners. Afterward I would always talk to people about their individual cases. There is a process of self-selection. There are people who want their cases to remain quiet. They don't want to see them on the front pages of newspapers. There are people who have seen the rigours of these applications; there are people who are worried that an unsuccessful application may prejudice a future parole hearing. There are also people who just know they've not made much progress, and they're bad cases. That's why you see fewer than 19% applying.

At the end of the day, my calculations say 15.2% of eligible prisoners have received some relief. When I say “some” relief, I mean they're not made immediately eligible. A few are, but I've seen cases of people being made eligible when they served 17, 18, 19 years. The jury determines what the reduction will be.

In 1997 the provisions were amended to require a unanimous jury for reduction, but the actual reduction is left to eight out of the 12. It can be 19 or 20 years. They can set the time to whatever they want.

My point is this: is there a basis for this very harsh move? Ms. Jennings isn't here, but when I read the proceedings of the meeting on October 19, I noticed that she engaged in a debate with the minister about constitutionality. However, they were only talking about retroactivity, and on that point of debate the minister was right. He didn't cite it, but the case is R. v. Gamble. People in Canada are entitled to be sentenced, which includes having their parole eligibility determined, by the law as it stands at the time of the offence. But that's not the issue. The issue is the constitutionality of a murder regime set at a minimum of 25 years.

You'll see on page 3 of my submission that in 1990, when our Supreme Court constitutionalized the 25-year parole ineligibility in the Luxton case, it did so taking into account as part of its decision-making matrix the 15-year window and that possibility. If you remove that, the whole question of constitutionality is back on the table. As well, in that case there was no evidence about the deleterious effects of long-term confinement, either in general or on particular people or on groups of people. Next time there will be evidence.

So this is a bill that is constitutionally vulnerable, yet the minister comes here and tells you, “No, no, no”. I don't know that he even considered this issue. You certainly can't see it from the minutes.

Let me say a word about victims.

I accept that some of the families that have survived murder would support this legislation. It certainly wasn't the case when I was a practising lawyer, but now victims do participate, if they choose, in the criminal process. They can participate at every level of the 15-year process if they choose. We've recognized that providing these participatory opportunities to victims is an important and valuable aspect of the criminal justice system. One must respect and have sympathy for the tragic losses and grief that victims have suffered.

Yet we all experience grief in different ways, don't we? There will be myriad responses. While one needs to listen to the voice of victims, sound penal policy must be based on a set of values grounded in an experienced and reasoned judgment. It was over 900 years ago that we took penal policy out of the hands of victims. In this country it's now in the hands of parliamentarians. We expect them to have a full debate, ask hard questions, and produce rational, fair penal policy based on evidence, not emotion.

I have addressed in my submission what I call the procedural aspects of Bill C-36: the 90-day window, the five-year delay. Those would relate to those people currently in jail who have the opportunity of the 15-year review. Again, there's no evidence as to why these are necessary; it's pure harshness for harshness' sake.

The 90-day window is completely unrealistic as well. There will be mountains of files that lawyers need to go through. Plus, I don't know if anyone's ever told you this, but when prisoners are eligible for 15-year review, the juries are picked in the place where the offence was committed. Not many prisoners....

I waited. I would appreciate it if you wait as well. Thank you.

[The Chair, Conservative, Ed Fast]

Professor Manson, each witness is normally given 10 minutes.

[Prof. Allan Manson]

Mr. Head indicated that I could have his 10 minutes if he would answer questions.

[The Chair, Conservative, Ed Fast]

Well, it's not for him to make that decision. It's a committee decision as to how much time is given, so I will give you another minute to wind up. All right?

[Prof. Allan Manson]

I just want to point out that it was with great difficulty that I came here this afternoon--

[The Chair, Conservative, Ed Fast]

I understand.

[Prof. Allan Manson]

Thank you.

It will take me a minute to figure out where I was.

I was speaking of the 90-day window and I was saying that prisoners are not necessarily confined in the province where the case originated. They therefore have to apply to be transferred and moved back to their original province to retain a lawyer and to commence this application. To say you have 90 days from the 15-year moment is unrealistic and is just pure harshness.

I'm happy to answer questions. I'm sure you have questions for Mr. Head, who has some statistics.

My point is that you've not yet been given any evidence that suggests this is what Canadian criminal law policy should support. All you've been told is that this is what Canadians want. I doubt that.

The current mechanism is working. Juries are making the decisions. They are distinguishing between worthy cases and unworthy cases in every province. Judges at the judicial screening are making the distinction. In my submission I give a number of cases just in the past two years in which judges have said, “This case doesn't meet the test. It's not going to a jury.”

The current mechanism is working, and it reflects the fundamental Canadian view that people can be redeemed. It should be maintained.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll open the floor to questions, starting with Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I just want one minute, then I'll turn the rest of my time over to Mr. Murphy.

I simply wish to clarify something for Mr. Manson concerning the question I asked of Minister Nicholson regarding the application of the clause retroactively.

My question was precisely to highlight the hypocrisy on the part of the minister and his government, who have been crying crocodile tears about the victims of violence and saying that their legislation will actually save these victims pain, when the minister knows full well that if his legislation goes through and the section is repealed, those who have already been found guilty of first-degree murder and sentenced to life without possibility of parole before 25 years would still have the opportunity to continue to apply through the faint hope clause, although the legislation would prescribe it a little more.

Therefore, I asked him if he would make clear to victims that they would still have to go through a certain amount of pain.

[Prof. Allan Manson]

Could I follow? If in the future this bill passes, and if you accept the argument about pain--and I accept that it's how some people experience grief, and it lasts forever--it will still happen at the 25-year mark with the parole process, because our current Corrections and Conditional Release Act and regulations give victims that opportunity to participate in parole hearings.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I originally thought we might have seven minutes, but in the five minutes that I have, I'm very interested in the crux of your evidence, and that's with regard to constitutionality.

You were very clear.

We are, or I am, now used to three and a half years of ministers coming with laws without tabling or even referring to the constitutionality of them--charterproofing, in other words--and that's a good minister with good staff. We're used to that by now. We're numb to it. It's not great, but it's the way it is.

You mentioned the constitutional issues here, the charterproofing issues, that would be gone if the faint hope disappears. I think you're saying that someone in the new regime, newly convicted with a life sentence or convicted of treason, for that matter, would apply for a charter challenge on the basis of cruel and unusual punishment because he or she is facing 25 years without the chance of applying for parole. What kind of evidence would be led? How successful would it be? What are you relying on in terms of case law or international comparison to conclude as you will?

[Prof. Allan Manson]

First, the 1990 case, which was Luxton, was at the time when we still had some aspects of constructive murder. I'm not going to get into a big lecture about this, but those were the major issues in front of the Supreme Court of Canada, and they succeeded. Constructive murder is unconstitutional. I was very surprised that in this package of cases they also raised the constitutionality of the penalty, because they called no evidence; there was no evidence in the record.

Chief Justice Lamer said that 25 years for the gravest crime is surely not that grossly disproportionate. That's the section 12 test. He also said “taking into account the potential for individualization that exists”, and one of his major examples was this process.

I'm saying that if you do away with this process, you've reopened the question. It will be re-argued on the basis of section 12 jurisprudence, which is gross disproportionality. Viewed from the perspective either of this offender or a reasonable hypothetical, section 12 jurisprudence looks at individual circumstances and culpability, but it can be the reasonable hypothetical.

We will see evidence, like some of Canada's own studies, the one that Dr. Gendreau did in the late nineties, pointing out the impact of long-term confinement on vulnerable groups with respect to recidivism. We'll see studies from American criminologists and psychologists about long-term deleterious psychological effects. That's the kind of evidence I would think we'd want to see in front of the Supreme Court when it deals with the question afresh.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

How much time do I have?

[The Chair, Conservative, Ed Fast]

You have basically a minute to go.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Still, for all your remonstrances here, you haven't fleshed out what kind of hard evidence there would be. You talk about disproportionality and you talk about American studies and the study by Dr. Gendreau. You said earlier that in the seventies, a lawyer introduced the aspect of the jury reviewing--

[Prof. Allan Manson]

It was a member of this committee.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, a member of Parliament, presumably. Sorry for jumping to that conclusion.

But we are legislators. We could make this law that says 25 years ineligibility is what we believe the law should be. How would that be attacked, other than what you just said, which to me doesn't get you home, counsellor?

[Prof. Allan Manson]

You'd go through the section 12 jurisprudence--I can give you the names of the cases, Smith, Gault, Morrisey, Ferguson--and you make your claim about gross disproportionality in terms of blameworthiness and the effects of punishment. The effects of punishment are front and centre under section 12. That's why you'd want evidence about deleterious effects of long-term punishment, which was not in front of the court in the 1990 basket of cases. They argued that 25 years is too long, and the Supreme Court said, well, no, it's the gravest punishment with the gravest penalty.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move on to Monsieur Ménard. You have seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Manson, we did not receive your brief because it had not been translated. Did you have an opportunity to read the written representations made to us by the Canadian Bar Association?

[Prof. Allan Manson]

No.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That's too bad because, for once, they were brief, succinct and highly convincing. Even at recent meetings, I have still been hesitating, because I consider murder to be an odious crime. Capital murder is still a wilful homicide, planned and executed in cold blood; it is the worst of crimes. Genocide and the like are even worse. Having read the brief submitted by the Canadian Bar Association, I must say I am firmly convinced that we should not change the legislation. I may not have to read what you have written on the subject.

If you have been following our proceedings, you may have noted that I was considerably moved by the testimony of Ms. Thérèse McCuaig, who recounted the circumstances surrounding another of these odious, heinous crimes. It was the worst crime committed by the worst of offenders.

As a member of Parliament, we often visit seniors residences. I always tell them—and they seem to appreciate this—that I am discovering, as I grow older, that there is one faculty that does not erode over time, and it is a person's sensitivity. The proper balance involves not only reason, but also a form of sensitivity. Indeed, I was very moved by her testimony.

I was wondering if I should change my view, but the representations made by the Canadian Bar Association convinced me. There is a very clear response that could be given to Ms. McCuaig. I re-read subsection 745.63(6) of the Criminal Code, which sets the timeframe and answers one of the arguments that also greatly impressed us, which was that victims could be invited to attend proceedings every two years. That subsection reads as follows:

(6) If the applicant’s number of years of imprisonment without eligibility for parole is not reduced, the jury may (a) set a time, not earlier than two years after the date of the determination or conclusion under subsection (4), at or after which another application may be made by the applicant under subsection 745.6(1); or (b) decide that the applicant may not make another application under that subsection.

There is no doubt in my mind… and I, too, have argued many a case in front of a jury. I know of no jury that would have arrived at a similar decision in the case involving the heinous crime that Ms. McCuaig described. No jury would have agreed that he be present.

I fully agree with what you say. If the Minister is claiming that the Canadian public wants this law to be changed, it is important that he realize that we are talking about a decision made by 12 citizens that must be unanimous. How could anyone think that there would not be at least some members of that jury who could be considered representative of the Canadian population? I take comfort in the idea that this law was developed with great care—“carefully designed”, as the Supreme Court said, with a view to attaining the intended objective.

I wanted to say that we were not insensitive—quite the contrary—to the testimony given by victims who appeared before us. I sympathize, within the full etymological meaning of the word “sympathy”, which means to “suffer with”.

[Prof. Allan Manson]

May I respond, Mr. Ménard? I agree completely that we should be sympathetic and respectful to the loss of victims. What I'm saying is that the loss of victims is not the issue here.

With respect to your remark about juries, not only can the juries reject the application and set the time for the next hearing, but they can also say there will be no hearing. They can say, “This person cannot come back,” and Canadian juries have done that. When they've looked at dreadful cases, they've said, “We reject it, and you're not coming back.” These are members of the community where the offence took place.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Comartin for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you both, gentlemen, for being here.

I have a series of questions for data that I would like to have that the minister and his officials didn't have. I think, Mr. Head, it's the primary reason why we asked you to come, because we were told that StatsCan's Juristat didn't have this information, that it would be repositoried with you. So I'm just going to ask these.

There was a study in 1999 that showed the average age of incarceration for those found guilty of first-degree murder and not eligible for parole, up to the 25 years...they in fact stayed in to 28.5 years. From speaking earlier to Mr. Manson, I understand that this figure may in fact be higher now. Do you know that?