Justice Committee on Nov. 4th, 2009

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to both witnesses for your attendance here this afternoon.

Professor Manson, I'm confused by your comments regarding the 1990 Supreme Court decision in the Luxton case.

Before I talk about that case specifically, you no doubt are aware that the government has introduced multiple bills this session regarding criminal law amendments that are dealing with ending the two-for-one allowance for pre-trial custody and minimum mandatory sentences for drug dealers. You're familiar with all those or most of them. Would I be safe to assume you would be of the opinion that each and every one of those bills is constitutionally suspect?

[Prof. Allan Manson]

No. I mean, I think some of them may be bad policy, but being bad policy isn't the same thing as constitutionally suspect. Parliament is responsible for policy. The charter provides minimum standards of constitutionality, so whether I agree or disagree with the policy doesn't make it constitutionally suspect.

If you gave me a specific example, I might—if I had a chance to think about it—give you an opinion, but I wouldn't agree with that.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, we'll go directly to the bill under consideration.

The Supreme Court said that life sentences with no eligibility for parole for 25 years were constitutional.

[Prof. Allan Manson]

Yes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But you believe that taking away the possibility to expedite that period of parole eligibility somehow constitutes cruel and unusual punishment?

[Prof. Allan Manson]

Number one, that is arguable, but my point is that if you look at the actual paragraph—and I quoted it in my brief—Chief Justice Lamer immediately says, “I reiterate that even in the case of first degree murder, Parliament has been sensitive to the particular circumstances of each offender”, and he cites this process. So you take that out of the decision-making matrix and you've got a whole new issue. He's saying he accepts the constitutionality of the 25-year minimum and in doing so he recognizes what Parliament has structured, including the 15-year review. If you take the 15-year review...it's opened everything up.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But conceptually—and I've read the decision—if a 25-year period of parole ineligibility is constitutional, it's counterintuitive to suggest that taking away the right to reduce it is cruel and unusual punishment.

[Prof. Allan Manson]

No, because you see, our Supreme Court has said time and time again that sentencing is an individualized process, and section 12—cruel and unusual—looks at the individual, either the offender or a reasonable hypothetical, and compares culpability with that person's circumstances. It is individual.

So when you've got a process like the one you have now, which includes this safety valve for the 15% who can show a change of circumstances in relation to culpability and therefore essentially be resentenced by a 12-person jury, the Supreme Court says “I buy that system; it's okay.”

If you take away the safety valve, it's a different system. So you're completely wrong when you say it's counterintuitive.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, I don't know if I'm wrong.

[Prof. Allan Manson]

Your logic is wrong. Your argument is up to you, but your logic is wrong.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

We'll have to disagree on that point.

I know you sat as a district court judge in the Yukon at one point in your career. With respect to the 15-year parole eligibility, do you believe—

[Prof. Allan Manson]

I was deputy territorial court judge for a year.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

—that the public differentiates between a life sentence and a life sentence without parole for 25 years, or possibly 15 years? It's my suspicion that the non-legal population believes that the penalty for first-degree murder in this country is 25 years.

[Prof. Allan Manson]

You could be right. I think that's unfortunate. I'm constantly trying to remind the media that we have a mandatory penalty of life. There are differences with respect to parole eligibility, but the person sentenced for murder is supervised for life.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I understand that, but it's my suspicion that the general population doesn't get that. You've already agreed that it's quite possible.

[Prof. Allan Manson]

It's quite possible, and I think it's unfortunate that we don't do a better job of informing them.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

If the population thinks that the penalty for first-degree murder is 25 years, wouldn't you agree that they're going to be outraged if they learn that the penalty is only 15 years?

[Prof. Allan Manson]

No. If the public suffers from a misconception, then we ought to correct the misconception. We shouldn't be pandering to it. This legislation panders to a number of misconceptions.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

This has been the law since 1976.

[Prof. Allan Manson]

And I'm suggesting that we maintain it. This bill wants to do away with it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Yes, but in 33 years the legal profession, which you're part of and which I was formerly part of, Parliament, the media—we've all been unsuccessful in educating the public about what a life sentence really means.

[Prof. Allan Manson]

Maybe, but I don't know that. You said you suspected it. Maybe we have to do a better job. If we've done a bad job of educating the public, surely the answer is do a better job, not to fiddle with the nuts and bolts of the sentencing regime for our most serious crime.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm not going to ask you to speculate on the constitutionality of any of the other pieces of legislation that might be unfair, but do you agree with any of Minister Nicholson's safe streets and safe communities agenda?

[Prof. Allan Manson]

I would have to look through it in detail before I could comment.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

How about two for one for pretrial?