Justice Committee on Dec. 7th, 2010

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

So basically you are saying that people generally agree with the idea of judges having the discretion to hand out less than the minimum sentence.

I know—and you can either confirm or deny this—that a number of Commonwealth countries that have been very active in imposing minimum sentences have also set out legislative provisions to allow judges to hand out less than the minimum penalty, if the circumstances warrant it, provided that they give their reasons for doing so and justify the variance, either orally or in writing.

Can you talk to us about the outcome of applying those provisions, which people seem to want?

[Dr. Anthony Doob]

My understanding is that in many countries this is the case, and judges are able to go below the mandatory minimum penalties when there's a good reason to do so. Of course you then get into the question of why then have the mandatory minimum, and that may be a way for Parliament or the legislatures in different countries to give an idea about the relative seriousness of offences.

I think what one has to look at is that sentences vary enormously, in large part because the behaviour that is being sentenced varies enormously and the role of the offender varies enormously. It is very easy to say that if this was a robbery with a firearm, we therefore cannot conceive of a situation in which somebody should get less than the minimum, except that as soon as one points out that the person being sentenced may have had a very minor role, may not have held a gun, may have been in the car waiting, and may have been an 18-year-old girl, the circumstances become quite different from one's image of an armed robber. In those circumstances, I think various countries say that the judge then has to justify it and go outside.

What we're really coming down to is the understanding that we have, or should have, some confidence in judges. I think one of the difficulties with the Criminal Code sentencing provisions at the moment is that even though we have a provision saying the sentence severity should be proportional to the harm done and the person's responsibility for that harm, what Parliament has done since the mid-1990s, when that was codified, is undermine that provision and make it more and more difficult to apply.

What I find interesting is that in many instances we're not really addressing the very difficult issue of deciding what we mean by proportionality and at what level we should be doing it. We're saying that we don't really care about those nice details, that we want to simply sentence.

[The Chair, Conservative, Ed Fast]

Professor, I'm going to have to stop you there. We're well over time. We're two minutes over.

Mr. Comartin is next.

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

Thank you, Mr. Chair.

Thank you, professors, for being here.

Professor Doob, I want to go back to the numbers, the 26 cases of multiple murders per year on average. Are those actual convictions, or would some of those be cases in which the perpetrator also committed suicide?

[Dr. Anthony Doob]

That's a good question. That's the best estimate we have. Some of those are from police homicide data having to do with incidents in which there were two or more people killed. Whether those were prosecuted would obviously depend on whether there was an offender who was alive.

My guess is that in almost all those instances.... In fact, if you look at the data, I think you'll see that in all but one of the instances the person was identified, in large part because so many of them are incidents in which people know each other.

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

Can we conclude from that that at least some of those cases would not be cases that would be prosecuted because the perpetrator would have killed himself?

[Dr. Anthony Doob]

Yes. However, the other side of that problem is that multiple murders come in different forms.

The other form of multiple murder involves separate incidents in which a person has killed twice. These are single incidents involving a single police force, usually in a single location, and there are two or more victims. If a person kills somebody on this side of town and then kills another person tomorrow on another side of town, those are going to be deemed as two separate incidents, even though you and I would say that the person has killed two people.

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

Okay. I know we're not doing this in formal terms, but the reality is we're trying to make life sentences consecutive, as opposed to concurrent. That's really what's happening. Of course we're trying to do this to deal with the Bernardo and Olson and Pickton types of situations.

I'm not aware of any other countries, with the exception of some states in the United States, that have tried to make life sentences consecutive.

Could you indicate whether that's the case? Are there other countries that make life sentences consecutive?

[Prof. Allan Manson]

I don't know of any. Through American television and American newspapers we've all experienced a sentencing report in which someone received three life sentences, and hearing them talk about the expressive integrity of the justice system. In Canada, the courts concluded many years ago, after a lot of consideration, that you can't--in the abstract, in theory, or in reality--have a sentence consecutive to a life sentence. When someone dies, his life is over. This has been Canadian law for a long time. Anything else is just notional.

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

The other reason for this bill—and you'll hear this from Conservatives—is to avoid having victims' families and friends repeatedly go through hearings, whether it's under the faint hope clause or the parole system. We saw this with Olson last week.

I believe there are alternatives to using this approach. Have either of you considered what some of those alternatives might be, as opposed to using the approach in Bill C-48?

[Prof. Allan Manson]

We have to be respectful of both the views and the grief of victims, and Canadian criminal law has gone a long way in 30 years to be respectful. I'm not saying we've succeeded or that the job has ended. A big part of that is giving people information about the process and giving them an opportunity to participate, and the National Parole Board has done that. The CCRA provides an enormous amount of material to victims. There are specific provisions of what is available.

I don't know how you can look into the future and predict how a family is going to think or feel 25 years down the road. If people want to continue to participate, they ought to be able to participate. The difficulties of that, though, are just inescapable, if you're going to be respectful of someone's views and someone's grief. Conversely, you can't make penal policy based on the views of a small group of people, so it's a difficult situation.

I read the newspapers last week and we'll see how that matter progresses, but as you pointed out, you're talking about two or three people in the country.

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

Professor Doob, what about the idea of taking away the right to repeatedly apply for parole? Could that authority be given to the Parole Board?

[Dr. Anthony Doob]

Let me back up. I think that there is a certain level of incoherence between the sentencing provisions and the release provisions. To some extent we're talking about that level of incoherence. I think that these are difficult questions. What is the appropriate length of time for offenders between parole hearings? It may be that this question should be revisited.

I am reluctant to make a suggestion on the fly, however, and the reason I'm reluctant is that I don't know the history of it. The Parole Board is very conservative on releases. We know that, and the data are absolutely clear on that, but what happens with these sequential hearings and what should the length of time be? Should it be varied, and should it be varied with a parole? I don't know the answer, but it seems to me that it's a legitimate question to raise.

At the same time, it is not something that one wants to start by having me or anybody else around the table pick a number. I think you want to start by asking what we know about this process, what we know about the decisions being made, and how we can make this a sensible process.

[The Chair, Conservative, Ed Fast]

Professor Doob, I'm going to have to cut you off there.

We're going to go to Mr. Rathgeber for seven minutes.

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

Thank you, Mr. Chair, and thank you to the witnesses for your attendance. It's nice to see you both again.

Professor Doob, I listened to you very intently. I want to make sure that I understood you correctly. You told my friend Mr. Ménard that generally you don't believe in minimum mandatory sentences, and you believe that judges ought to have discretion to give something less than the minimum in the appropriate circumstances. Is that correct? That's what you said.

[Dr. Anthony Doob]

Yes. In the current circumstances, yes, that's correct. I think the difficulty is that I would like there to be more guidance to judges on what appropriate sentences should be.

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

You said that you have confidence in judges.

[Dr. Anthony Doob]

I have confidence in judges, and I believe that it's Parliament's role to give appropriate guidance.

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

Sir, you appeared before this committee on Bill C-25, which takes away two-for-one credit for pretrial custody. You'll recall that.

[Dr. Anthony Doob]

Yes.

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

You were opposed to that bill because it took away the sentencing judge's discretion to give extra credit for pretrial custody.

[Dr. Anthony Doob]

That's not correct.

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

You were against the bill.

[Dr. Anthony Doob]

Yes.

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

Why were you against the bill?