Justice Committee on Nov. 30th, 2010

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you.

[The Chair, Conservative, Ed Fast]

We're going to go to Mr. Murphy for five minutes.

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

When we start asking DOJ officials what their policy slant is, that's the day we should switch roles. I'd take the security, though; I wouldn't mind being a DOJ person.

But I respect your answer on the policy question.

I have a question. It's back to the hypothetical. I think we're all trying to get our heads around the discretion that might be used. Double murder, same circumstances: that's clearly first degree. If the judge decides that on the first murder the person should not be eligible for parole for 25 years, how is he or she going to separate the second murder, which is the same? The person is automatically ineligible for parole for over 50 years in that situation. I don't know how he could use the discretion in one case and not the other.

You're saying that on the second murder he could say he's using his discretion and is granting parole eligibility and equating the two murders the same.... To me, the problem might be.... The discretion is there and that's good. I remark, by the way, that it isn't there in Bill S-6. I wonder why it isn't, because we're dealing with a similar part of the code; that's faint hope and so on. That's one question, I guess.

Second, would we not be better off if we gave the judge a little more discretion on the number of years? In other words, a judge might look at those two instances and consider 25 years. He might be on the borderline as to whether he wants to go 50 years. He might very easily say 35, but we have this choice between the second-degree 10 and the first-degree 25.

You see on TV that in the American courts they can just pick a number out of the air and say, “You're not eligible for parole for 36 years”. In Canada, you can pick 10, you can pick 25, and, in the case of two murders, you can pick 50. But you can't pick between 25 and 50 in two first-degree murders, as far as I can tell. I wonder if it might be good to have a sliding scale. If you're going to give discretion, you should give it. You shouldn't say you have a choice between 25 and 50, or 75, or whatever the case.

In three-person murders, I think we get a little far afield. The choice between 25 and 75 is pretty large as well. But between 25 and 50 there might be a judge who thinks, “This guy is 40 and he should pay”. No question: each murder is equal in the eyes of the law in terms of the denunciation. But in a choice between 25 and 50, heaven knows, the judge might think that somebody might be able to rehabilitate themselves.

I'd like your comment about whether we should have something in between, and I'd also like a comment on Bill S-6.

[John Giokas]

Let me deal with the second comment first. The Criminal Code already states in section 745 that in the case of a first-degree murder, it's a mandatory 25 years, and if somebody commits another first-degree murder, it's a mandatory 25 years, and so on.

The issue right now is that those 25 years are served concurrently. What we're doing in the case of first-degree murder is giving the judge the discretion to make the mandatory periods of 25 years consecutive. This is already set out in the code. It's also set out in section 745 that in the case of a second-degree murder, where somebody has already been convicted of another murder, whether it's first or second degree, it is also an automatic 25 years.

So the 25-year period is already established in the Criminal Code. All Bill C-48 does is allow a judge to make the periods consecutive, based on criteria that judges are already using to make a decision that is similar in kind, namely, whether to extend a minimum 10-year sentence to 25 years in the case of a single second-degree murder.

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

You don't see that between 25 and 50 in the case of a double murder a judge might want to have some leeway? You don't see that? You're saying it's already there—it should be 25 or 50. That's what you're saying. That's the discretion a judge has under this bill. I'm not saying it's a bad thing. I'm just saying there isn't much in between. Actually, there's 25 between 25 and 50.

[John Giokas]

Perhaps I—

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

Just stick with two first-degree murders at the same time. It's either 25 or 50 under this law.

[John Giokas]

That's right, according to the discretion of the judge.

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

You don't see any need for more discretion. Okay, you're not going to bend on that.

Could you tell me why discretion wasn't kept in for Bill S-6? Why here and why not in Bill S-6?

[John Giokas]

Which discretion are you referring to?

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

The judicial--

[The Chair, Conservative, Ed Fast]

Sorry--

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

Is it almost time, Mr. Chair?

[The Chair, Conservative, Ed Fast]

Mr. Murphy, we're not dealing with Bill S-6, as you know. I think we should focus our comments and questions on this particular bill. Anyway, you are out of time.

We're going to move on.

Mr. Lemay, go ahead, please.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Giokas, I have a problem and I'm trying to understand.

Let's suppose someone is convicted of second-degree murder. The judge sentences him to life imprisonment with the possibility of applying for parole after 10 or 12 years, or whatever. We know all that.

Now let's take the case of someone who is found guilty of two unpremeditated murders. From what I understand of the answer you gave my colleague, the judge may decide that the person will not be eligible for parole for 25 years?

So that person would have to serve a term of 15 years, for example, for the first unpremeditated murder. However, for the second unpremeditated murder, the sentence would be 25 years; that's for sure.

Have I correctly understood?

[John Giokas]

Yes, that's correct.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

So if the person commits two similar murders in the same incident, he could receiver a harsher sentence for one of them. It's currently a life sentence for two unpremeditated murders. So there could now be an ineligibility period of 15 years and, subsequently, of 25 years.

[John Giokas]

Yes, that's possible, if that's what the judge decides.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

But can the judge decide to impose a sentence of less than 25 years?

[John Giokas]

No, not in the event of a second ineligibility period.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

The judge has no choice in the case of the second ineligibility period. If he imposes two consecutive ineligibility periods under new sections 745.21 and 745.51, the second must be 25 years. He has no discretion to decide otherwise.

[John Giokas]

No. As I explained, that's already provided for in paragraph 745(b) of the Criminal Code.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Yes.

[John Giokas]

The period is 25 years in the case of a second murder. What we're doing is to give the judge discretion to impose the second consecutive period.

We've designed the measures in accordance with those already in the Criminal Code. The only change is that we're also granting the judge some discretion.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

For example, let's take the case of Colonel Williams, who was convicted of two murders. He currently has a term of 25 years.