Debates of March 10th, 1997
House of Commons Hansard #141 of the 35th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was section.
- The Internet
- Prime Minister
- Laval Cosmodome
- Negative Option Billing
- Juno Awards
- Pay Equity
- Juno Awards
- Municipality Of St. Norbert
- Commonwealth Day
- International Women's Day
- Criminal Code
- Quebec Liberal Party
- Regional Development
- Bolo Award
- Job Creation
- Employment Insurance
- Somalia Inquiry
- Employment Insurance
- Somalia Inquiry
- Federal Public Service
- Ubi Soft Entertainment
- International Co-Operation
- Canada Pension Plan
- Child Labour
- Employment Equity
- Presence In Gallery
- Points Of Order
- Government Response To Petitions
- Commonwealth Day
- Interparliamentary Delegations
- Committees Of The House
- Competition Act
- Committees Of The House
- Questions On The Order Paper
Questions On The Order Paper
Some hon. members
Questions On The Order Paper
The Deputy Speaker
Dear colleagues, I wish to inform the House that, because of the ministerial statement and responses, government orders will be extended by 10 minutes.
The House resumed consideration of the motion and of the amendment.
March 10th, 1997 / 3:30 p.m.
The Deputy Speaker
The hon. member for North Island-Powell River has four minutes in questions and comments.
Ted McWhinney Parliamentary Secretary to Minister of Fisheries and Oceans
Mr. Speaker, in questioning the hon. member, may I say as a preface that I became acquainted with these cases 15 years ago when one of the victim's families asked for my advice on constitutional issues relating to the ability of the attorney general of B.C. to renege on the so-called "blood money" contract paid for information leading to solution of that case.
I have followed with great interest the development of the debate and his own valuable intervention. However, I would ask him whether he has considered the impact of section 11 of the charter of rights, particularly subsections (g), (h) and (i) on retroactivity and
in particular section 11(i). Does he not consider it creates major constitutional difficulties for the establishment retroactively and the denial to persons like Olson, already convicted, of the right to proceed under existing provisions?
Would he not be better advised to direct his feelings about the obscenity of the particular person concerned-which I think are shared-and suggest closer attention by the tribunal hearing the matter to abusive or frivolous use of a device, the existence of which on most constitutional authority cannot be retroactively taken away?
I ask that question seriously because I think there is room for representations to be made in the tribunal hearings.
John Duncan North Island—Powell River, BC
Mr. Speaker, we dance around these questions a lot. We make presumptions about whether something will be acceptable under the charter or not.
I mentioned something very basic in my earlier response about whether prisoners have the right to vote or not. My memory is that was not challenged at the federal level. When the decision was made that prisoners have the right to vote, as a federal presence we chose not to appeal the decision. Why would we do that? Is it because we agreed that prisoners should have the right to vote? I would go so far as to say that the vast majority of the population does not think so.
When it comes to the constitutional difficulties the member for Vancouver Quadra mentioned, yes there will be difficulties. Does that mean we create convoluted legislation that does not address the nub of the problem or do we go for the nub of the problem and then deal with the fallout on the constitutional end? We have mechanisms such as notwithstanding clauses.
Are we ever going to deal with the problems in some of these documents, particularly the charter of rights which has its own baggage? It has been in place for some time now and we know there are inherent problems in it. Are we ever going to deal with the problems if we continue to dance around them? I do not think so. I think we have to do the right thing and hope the right answer comes out of it.
Roger Gallaway Sarnia—Lambton, ON
Mr. Speaker, I will be splitting my time with the member for Burlington.
To restart this debate, members opposite from the third party have called on the government to apologize to families of murder victims. One cannot appreciate nor can one understand what sort of grief and suffering the families of those who have been murdered go through.
At the same time it is a sad commentary if this debate has been raised today simply on the basis of scoring some political points if that is the only motive. There is no reason for this government to apologize. And I do not think there is any reason why the government would want to get involved in all of this to make these people, the families, political pawns.
We know from earlier debate raised by my friend from Rosedale that criminal law is not there just to punish. Punishment is part and parcel of the criminal law but it is not the sole factor. Punishment does not bring back victims. Locking up offenders is not the sole answer and there is a cost factor attached to it. We also believe that while people are incarcerated we should look at rehabilitation with a view that some of these people may be put back into society.
The law requires that those who are convicted of first degree murder must serve a minimum of 15 years. We also know that most people convicted of first degree murder serve a full life sentence. We do know that after 15 years release is only possible after a very thorough review process. This is not just a review by the Minister of Justice or by the courts. Ordinary Canadians have a say as well.
The Criminal Code requires that offenders must serve their full 25 year sentence unless a jury decides that they should be allowed to apply for parole. First they have to serve at least 15 years of their sentence. Then they must go to the jury and if and only if that jury approves can they apply to the parole board in the same way as other inmates. This is not a green light from the beginning and this is not an easy process.
We on this side of the House believe that Canadians are best served by a complete criminal justice system, not by a system that says the only factor in sentencing is punishment. The criminal law has greater width than that and the ultimate purpose of criminal law is to make Canada a safer place.
We have talked about punishment and we have heard about deterrence but we also believe that we are here to protect Canadians from violence and by preventing violence. Every murder that we can prevent means that one less family is victimized. A criminal justice system is not just about deterrence and incarceration. Everything possible must be done to prevent crimes from happening in the first place and to deal with those who commit them so they will not reoffend again.
The safety of Canadians requires that offenders be rehabilitated if possible and if it is not possible then they will not be released. The possibility of release after 15 years instead 25 years is a part of rehabilitation. It offers a reward to those who modify their behaviour. The strict review process ensures that those who do not change will serve out their sentences.
The interests of all Canadians are better served by preventing crime than simply by punishing people. That is why we have brought in legislation to prevent murder and other violent crime.
In Canada one-third of all homicides are committed with firearms. In recent years more Canadians have been killed with a gun than any other type of weapon. We listened to the families of
young women killed at the Montreal University Ecole Polytechnique in 1989 and the families of victims of firearms violence all across Canada. We believe that the families of these victims want more than anything to see that it does not happen to someone else.
That is why the government has enacted new gun control legislation. If someone is shot the whole family is victimized but Canadians are also victimized.
Unfortunately the new decorum in the House means they keep talking but we have to keep the killer in jail. It also costs about $50,000 a year which is over $1 million for every offender. If murders can be prevented from happening everyone benefits. Sadly the members opposite disagree. They voted against gun control. They would rather lock up murderers than prevent people from being killed in the first place.
I ask: who voted against measures that would allow us to identify illegal firearms so that the guns could be seized and those who import and sell them to Canadian criminals could be prosecuted? Who voted against measures that would ensure that police officers could find out whether a gun is in the house before they knock on the door? Who voted against laws that would control imports to ensure that guns that enter Canada are sold only to those who have been screened and have been issued a permit for them? Who voted against measures that would make sure that only those who owned their guns legally and had them registered could go into a store and buy ammunition for them? Where do the members opposite stand?
Earlier in debate today, members talked about accountability. Earlier today they talked about how they stand in solidarity on this issue. Yet they also talked about accountability. We also heard the talk, and it is only talk, of how they are accountable and how they go out, in this infinite wisdom of theirs, and discern how people feel.
However, members opposite know that three of their members voted for the gun legislation. They spent taxpayers' money to do a poll in their ridings. They knew all along that this was a way of preventing victims, of protecting families and of preventing murder.
Does the hon. member and his colleagues opposite, with the three exceptions who spent the money to do a poll, oppose all of these things because they think it will cost too much money? It is okay if it is out of the member's budget. They want to spend money on prisons but not on preventing crime. They are not willing to spend money on saving lives. They also oppose it because it is inconvenient for their supporters. They oppose holding gun owners responsible for gun storage requirements that would help keep guns from being stolen and keep them out of the hands of children.
Some of their supporters object to registering their firearms. They object to the idea that they should have to keep their guns locked up. They think that they should all be allowed to have assault rifles and machine guns. They think they should have the right to have any kind of gun. They would like to see everyone with a loaded gun to protect themselves from criminals. They have adopted the American principle of the right to bear arms. Those are simplistic and unrealistic policies.
The hon. member and his colleagues do not seem to be very concerned that we would also have the kind of homicide rates that would inevitably result from their policies. They would like to repeal gun laws. They say they would do it all if elected. They say they care about the families of those who were shot yesterday but they do not seem to care very much about the families of tomorrow's victims.
One-third of Canadian homicides are committed with guns. That means that one-third of the families about whom the hon. members opposite are so concerned lost their loved ones to gunshot injuries. However, they do not worry about that as long as the killer spends 25 years in jail. In that way their consciences are clear and their supporters are happy. What about the families? They are still victims. Their loved ones are still dead and their lives are still devastated.
I would suggest that the shame is on that side. They should be embarrassed for calling on the government, which is trying to prevent similar killings in the future, to apologize fully to the families of the victims. If anyone should apologize it is those on the other side of the House, not here.
Monte Solberg Medicine Hat, AB
Mr. Speaker, the hon. member talked at length about previous legislation the House had dealt with such as gun control. He correctly pointed out that two-thirds of all homicides were caused other than by firearms. I am thankful he pointed that out.
My question for the hon. member for Sarnia-Lambton concerns the subject of the debate today, the whole issue surrounding section 745 and whether or not scum like Clifford Olson should have the right to come before the public and revictimize the families of the children whom he slew. My question also concerns how his own constituents feel about the issue.
He mentioned that some of the Reform Party members in the past went to their constituents on extremely important issues. He is right. We certainly have. We have a duty to represent our constituents on very important issues.
Dealing with Clifford Olson, somebody who slew 11 children, could he tell me that his constituents support his stand to allow such people to come in front of the public again and revictimize the families of the children whom he killed?
Roger Gallaway Sarnia—Lambton, ON
Mr. Speaker, there is a really interesting philosophy going on here. They take one issue and stake their lives on it. I was elected in the riding of Sarnia-Lambton because people knew what I stood for and what I could do. People also knew what the government stood for on a whole range of issues.
Members opposite love to talk about how they have the only method known to mankind of consulting with their constituents. I will put my method of consulting with constituents against theirs any day.
In any event, let us examine the way they consulted with their constituents on gun control. Their method of consulting was to have their constituents fill out a questionnaire they received in their mailboxes and send it in to them. I am certain there were little clubs and groups who were Xeroxing these, stuffing them in envelopes and mailing them off to their local Reform member of Parliament. Of course it can be sent free, without any charge.
From the mailbag they said they learned how their constituents felt. A bunch of anonymous people had mailed in forms. It was like clipping coupons from a newspaper. This was supposed to be a very scientific process. It was the way the Reform Party discerns how their constituents feel.
Out of that came a policy they said represented the views of their constituents. Yet, three of their members dared to go into the communities and say they wanted to engage a professional polling firm. They wanted to find out exactly what the people in their ridings were saying. They did not want a bunch of anonymous people mailing in clippings and flyers. They wanted to know what the people in their ridings truly felt. They were willing to spend 2,000 or 3,000 bucks of Government of Canada money to find out the people of Canada supported Bill C-68.
They are using the same kind of logic in the most wondrous fashion to tell us that Canadians are opposed to section 745 and therefore it must be repealed. Let us have a little clipping service. Let us have a discount. Let us find out what those nameless people who are responding to the Reform polls are saying.
It is nonsense to discern or gauge public opinion that way. They do not have a stand. They are like willow trees. They blow with the prevailing wind, and the prevailing wind comes from the little coupons people clip and mail to them.
That indicates why they are sitting where they are in the polls. They are devoid of any opinion other than what is in their mailbags. It is an indication of how special interest groups seize such minds and propel what they discern to be public opinion. I do not agree.
Mary Clancy Halifax, NS
Mr. Speaker, judging by the wording of the motion I get the impression the Reform Party is accusing the government of being insensitive to the concerns of victims regarding section 745.6 of the Criminal Code. Let me assure hon. members of the House that nothing could be further from the truth.
In developing the amendments to section 745.6 which were recently passed by the House the government had the concerns and perspective of victims squarely in mind. I am referring to the amendments introduced in the House on June 11, 1996 as Bill C-45, an act to amend the Criminal Code (judicial review of parole ineligibility) and another act, now S.C. 1996, chapter 34. These amendments received royal assent on December 18, 1996 and were brought into force on January 9, 1997.
Turning to the substance of those amendments I note for hon. members that as of January 9, 1997 any person who commits multiple murders will no longer be entitled to bring an application under section 745.6. Judicial review of the parole ineligibility period will simply not be an option for anyone who commits more than one murder. This would include those offenders, fortunately few in number, who have become known in the popular media as serial killers.
In these cases the offender will be required to serve the full 25 years with no eligibility for parole and no chance under section 745.6 to review that ineligibility period. This means that for future cases of this nature victims' families will not be forced to face the prospect of a section 745.6 review.
The second point I note about the amendment is the introduction of a mechanism to screen out applications that have no merit. As of January 9, 1997 any application brought under the section regardless of when the offence was committed will be submitted to a superior court judge for a paper review of the case to see if the case has a reasonable prospect of success.
During the paper review the judge will consider written materials presented by the crown and by the offender. If the offender cannot show that his or her application has a reasonable chance of success-and the legislation places the onus on the offender to prove this point-the application will be stopped there. It will not be permitted to proceed to a hearing before the jury.
The amendment will prevent the type of revictimization the Reform Party motion refers to in any case where the application has no reasonable prospect of success. These applications will be screened out at any early stage. They will not be allowed to proceed to a full and public hearing before a judge and jury.
The third point to note about the amendments is that a significant change has been made concerning the number of jury members that must be convinced before an offender can obtain a reduction in the parole ineligibility period. Before these amendments were passed an offender only had to convince two-thirds of the jury or eight members out of twelve. As a result of Bill C-45 an offender will now have to convince each and every member of the jury to get any reduction at all in the parole ineligibility period.
To recap the effect of these important changes to this section and to the review process, as of January 9, 1997 no person who commits multiple murders will be allowed to apply for a review under section 745.6 of the Criminal Code. All applications brought after this date, whether the crimes were committed before or after January 9, 1997, will be subjected to a paper review by a superior court judge and may well be screened out if the offender cannot show a reasonable chance of success. For those applications that do not get screened out, the offender will have to convince all 12 members of the jury to get any reduction in the parole ineligibility period, not merely eight members of the jury as was previously legislated.
The government listened. It listened long and hard to the concerns of victims before and during the development of these amendments and during their passage through both Houses of Parliament.
During this process it became apparent that one of the reasons for the concern about section 745.6 was that until recently many people were unaware of the existence of this provision. For example, the families of murder victims often find out about section 745.6 through the media many years after the trial and conviction of the offender. This late discovery leads to a sense of surprise and betrayal. It reopens old wounds.
The sense of surprise and betrayal was evident in the testimony of many of the victims who appeared before the House of Commons Standing Committee on Justice and Legal Affairs and the Standing Senate Committee on Legal and Constitutional Affairs when these committees considered Bill C-45.
As a result of listening to this concern, on February 27, 1997 the Minister of Justice and Attorney General of Canada announced that he had written to his colleagues, the provincial attorneys general, to ask them to issue instructions to their crown attorneys that the families of victims were to be advised of the existence and the effect of section 745.6 at the time of sentencing in all appropriate murder cases.
By implementing this simple and practical procedure we can ensure the families of victims are never caught by surprise by the existence of section 745.6 again.
Sadly there are people sitting in the House who would rather muddy the waters with half-truths than come out with what exactly happened in the amendment of the legislation.
I am delighted the hon. member for Sarnia-Lambton was here at the beginning of this afternoon's debate to set the record straight.
Jack Ramsay Crowfoot, AB
Mr. Speaker, I listened to the brief comments of the member opposite. She referred to the reasonable prospect of success. That is rather an ambiguous term which has not be defined.
It reminds me a little of the relativity of medical and other information as contained in Bill C-46 wherein sexual assault victims will now be protected. Any information they might have granted or given to a doctor, a counsellor or whomever will be protected and will be denied to defence counsel unless the relativity of the evidence is established in the mind of the court.
Professional witnesses appeared and told us that the courts, without any question, were considering the relativity of information. They are not willing to leave out any information so relativity is a matter of speculation from their point of view.
We are faced with the same thing. What judge would say whether or not there is a reasonable prospect of success? All the applicant has to do is create a doubt in the mind of the judge as to whether or not there is a reasonable prospect of success. We will have as many different definitions of that as we have judges sitting on the cases.
Does Clifford Olson have a reasonable prospect of success? I do not know. There are some judges who might say yes to that. He would not have in my mind. He would not have in the mind of the victims. He very well may find judges who will not take the onus of responsibility but will leave it to a judge and jury to hear the whole of the evidence and view it from stem to stern.
By relying on the second level or another level of appeal in Bill C-45 is unproven. It is untested.
Perhaps the hon. member would like to comment on that, bearing in mind the evidence that was submitted before the standing committee on Bill C-46 with respect to the judges simply saying any evidence might be relative to the defence.
Mary Clancy Halifax, NS
Mr. Speaker, I am of course to delighted comment on the hon. member's comment.
I would first like to say that I was slightly confused by his comments at the beginning with respect to the theory of relativity, but realizing that the hon. member is not Einstein I was soon reassured. I suspect he meant relevance, but we will see.
As to his worry about the judges of the various courts across this land being loath to make decisions, I can only say that certainly has not been my experience. I would go to my colleague, the hon. member for Sarnia-Lambton, and suggest that probably is not his experience either. Judges, when they are put on the bench, wish to make decisions based upon their considerable knowledge and ability, which is the reason they were put on the bench in the first place.
If the hon. member has no faith in judges, if he clearly has no faith in governments, if he has no faith in anyone, why is he here? Why bother to take part in a process that he thinks is totally irrelevant, or should I say irrelative?
I have come forward to attempt to allay some of the wilder theories about this legislation. I think I have done so. I know that the hon. member for Sarnia-Lambton has done so. I would suggest that comments such as the ones we have just been subjected to come more under the heading of sour grapes than they do the theory of relativity.
François Langlois Bellechasse, QC
Mr. Speaker, I am pleased to also speak to an issue that has been dealt with widely and at length during the 35th Parliament, that is section 745 of the Criminal Code, and I would say, the Criminal Code in general, because this Parliament will go down in history as one of those that legislated the most with regard to criminal law.
We may have opposite views on section 745, as did my honourable friend from Charlevoix, who voted in favour of Bill C-234 that was introduced by our colleague from York-South-Weston and that called for the repeal of section 745, while others voted against it. I will come back later to the bill introduced by the hon. member for York-South-Weston.
I must first give some historical background to show how section 745 is neither fish nor fowl. These things sometimes happen in the Criminal Code. As we pointed out when Bill C-45 was introduced, this provision is somewhat peculiar.
Let us go back to 1967, 30 years ago. Since you were a young attorney at the time, you probably recall, Mr. Speaker, that the Criminal Code of Canada provided that capital murder was punishable by death. As a matter of fact, there had been no execution in Canada since December 6, 1962.
Using the royal prerogative, the government had systematically commuted the death sentences, the hanging sentences, one of the most infamous being that of Wilbert Coffin, in Quebec, who had been sentenced to death for murders committed in the Murdochville area, in the Gaspé region, after a trial that had left people with a bitter taste. At the time, people were not quite sure if Wilbert Coffin was really guilty.
I would say that Wilbert Coffin's execution in 1956 triggered the abolition of the death penalty in Canada, since it was one of the last times a person was sentenced to death and executed in Canada after a superior court trial that was never reviewed on its own merits by a court of appeal or by the Supreme Court of Canada.
It is somewhat disquieting to see a man deprived of the most basic right he possesses, the right to live, by the judgment of a single court, under circumstances that are a matter of concern, to say the very least.
In 1967, the federal lawmakers intervened in order to temporarily abolish the death penalty, for five years. There was no longer any need to use the royal prerogative, which had already been used an nauseam, to commute sentences.
People of my generation will recall the Léopold Dion case in the early 1960s. He was found guilty of the murder of a young child, and was apparently guilty of three other child murders as well, but the death penalty was not applied. It thus became unthinkable for that penalty to be applied to lesser cases in future.
The government of the day introduced a bill to suspend the death penalty for five years. Theoretically, it was revived briefly for a few months after that, until the House passed another bill, again for a five year moratorium, if I can use that word in this context.
This brings us up to the spring of 1976. The Trudeau government did promote certain human values. On constitutional issues, there is nearly universal agreement that his administration was a failure and a similar argument could be made in other areas as well, but in criminal matters or matters of criminal law, it certainly did promote such values. That must be said, all partisan considerations aside. Let us think, for example, of the reforms that abolished whipping, the reforms that enabled people taken into custody who were without assets to be released without having to post a cash bond, as they had had to in the past. Between 1970 and 1980, persons under the jurisdiction of the courts-in other words, all of us-saw their rights improved as far as criminal law was concerned.
Another Liberal government, the one we have during this 35th Parliament, has succeeded in virtually undoing everything the previous government had accomplished. We have seen the hon. member for Notre-Dame-de-Grâce, a former Liberal cabinet member, vote against this legislation, as very few others did. I believe that the hon. member for Kingston and the Islands also did, a few times, even on section 745, the object of today's motion before the House.
To put ourselves back in context, here we are in the spring of 1976, and the government is introducing a bill to definitively-I nearly said sine die -abolish the death penalty in Canada. Howev-
er, the government realized it did not have the majority it needed in the House to pass the bill. It was supposedly a free vote, although members of cabinet were expected to toe the government line, but it seems they were short five or six votes. Not all historians agree, but it was less than ten votes.
That is when the Trudeau government, which had not included section 745 in its initial bill, negotiated an unlikely compromise. To buy, or should I say obtain, the consent of some reluctant members, who with a little arm twisting could be persuaded to adjust their consciences accordingly, the government moved an amendment.
The amendment provided a minimum prison sentence of 25 years for a person sentenced to the maximum for first degree murder-in other words, life-before becoming eligible for parole. For second degree murder, the offender had to serve a minimum of ten years, depending on the court's decision.
However, since this was a concession to the hard liners, the government added a sweetener elsewhere for in the bill. The sweetener was section 745, which allowed offenders sentenced to more than 15 years imprisonment-which means all those who are convicted of first degree murder and second degree murder and have to serve a minimum of 15 years-to apply, after 15 years, to a judge of the Superior Court of a province, not just any judge but the chief justice, asking him to empanel a jury.
The judge has no choice, he has to empanel a jury, two thirds of which make a recommendation. No decision is even made. Before being amended by Bill C-45 in this legislature, section 745 provided that two thirds of the jury made a recommendation.
If the jury recommended parole, the inmate was not automatically freed, he could simply apply to the Parole Board. It was a stage allowing him to go to another door, and, with the time it takes in our legal system, the inmate could spend several months behind bars before being denied parole.
And then we had in this legislature Bill C-234, introduced by the hon. member for York-South-Weston, which proposed the repeal of section 745 of the Criminal Code. Everyone in opposition supported a review of section 745, given the circumstances of its creation and the fact that it had been in effect for 20 years. This is why we agreed to its review.
We did not agree to much else. Bill C-234, however, was clear at least; section 745 would be removed from the Criminal Code. You could agree or disagree. It was a free vote, because it was a private member's bill. In our party, most of the members were opposed. As I mentioned earlier, our colleague from Charlevoix voted for Bill C-234. Whether we agree with it or not, Bill C-234 takes an honest approach in that it is unequivocal: either section 745 goes or it stays.
At second reading, the government let the House vote overwhelmingly for Bill C-234 to go forward, only to let it get buried and die in committee as most private member's bills do. The government itself came back with Bill C-45.
To all intents and purposes, Bill C-45 repeals section 745 of the Criminal Code. Why? Because the criteria set in 1976 would now be much more difficult to meet, because they have been changed and the mark is definitely set much higher.
From now on, any inmate who wants to apply for early release under section 745 of the Criminal Code after serving 15 years, inasmuch as 15 years can be considered as early, will be required to first apply to a superior court judge, a modern day judge as appointed under the Constitution, and satisfy the judge that, at least on the face of it, there is a reasonable chance for his application to successfully be submitted to a jury.
Before, all inmates had to do was to apply to the chief justice of the province's superior court or supreme court and a jury had to be empanelled. Now, a judge designated by the superior court must at least consider written evidence. Because the common law is quite liberal in that regard, the judge may decide to hold a hearing if the court so pleases.
How much of an onus of proof will be borne by inmates? We cannot tell yet, because this particular provision has not really been challenged in court. We do not have jurisprudence to guide us in this matter; time will tell how much evidence our courts will require.
As I pointed out repeatedly at the Standing Committee on Justice and Legal Affairs, I fear this legislation might be applied differently in different regions of this country, depending on whether, where the judge is from, people do not put much faith in rehab or whether the circumstances of the crime for which the inmate is doing time are particularly aggravating, the judge could be tempted not to allow the case to proceed in the first instance.
It is also more difficult to get a recommendation under section 745, since each and every member of the jury must now be convinced, as opposed to only two thirds of them. This unanimity rule works well, for the purpose of determining guilt, when it is used in conjunction with the notion of reasonable doubt. Under our legal system, guilt must be proven beyond a reasonable doubt. This is why a jury's guilty verdict must be unanimous.
In our provincial courts, which deal with civil matters, it is not necessary to prove guilt beyond a reasonable doubt. There must merely be a preponderance of evidence, and a jury is not required to make a unanimous decision. Generally speaking, civil courts use the two thirds rule, as it was applied in Quebec until 1976, when civil trials by jury were abolished. Under that rule, it is enough to get four out of six jury members to agree. In a civil trial, it is
money, not the life or the freedom of a person, that is at stake, and the burden of proof is different.
But here the more strict criterion is used, the one that usually applies to the determination of guilt, and only for the purpose of a recommendation. This is wrong. Using the two thirds rule seemed quite appropriate and did not appear to pose any problems. We made a strong plea in committee to allow the victims, or those who represent them, to be heard when an application is made either before the jury, or before the National Parole Board, so that the board or jury members can have all the available information, including the views of the victims and their families and how they were affected.
The hon. member for Crowfoot explained on several occasions in this House that he has confidence in the jury system, provided members of the jury have all the facts. I agree with him. Jury members must have all the facts so they can render a fair and logical decision.
The bill that was passed, C-45, does not, in my opinion, allow enough information to be made available to the jury making the decision, to the judge authorizing procedures, or to the National Parole Board.
Finally, an additional condition Bill C-45 imposed that did not exist before is that, in the case of multiple murders, an offender is not eligible to apply under section 745.
At first blush, one might say this was a good change, because section 745 is not for serial killers. But someone who has committed more than one murder is not necessarily a serial killer, someone who enjoys killing for money or some other form of remuneration. It could be someone who has held up a bank and killed two people while doing so. Such an individual is no longer eligible for parole; he must serve his 25 years.
I think that Bill C-45 was an awkward attempt by the government to keep everyone happy by telling hardliners: "You see, we have, to all intents and purposes, repealed the provisions regarding release after 15 years", while saying to those who are more liberal, with a capital L: "Look, we believe in rehabilitating offenders, because we are still letting them apply after 15 years, if their behaviour has been good".
What I say is that a law that does not apply in the same way in Vancouver, Edmonton, Quebec City and Halifax is a bad law. For once, we have the jurisdiction to take action; nobody is questioning the jurisdiction of the federal Parliament over criminal law. It would be interesting not to have to speak about the Constitution today, because it is clear in our law, in section 91 of the Canadian Constitution, 1867, that criminal law is a federal responsibility. I say that the federal Parliament should have given more thought to the equality of application of the new section 745 as amended by Bill C-45.
There may be recourse under the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms if someone is treated differently, if statistics show that people in Quebec are systematically released after 15 years, while those in Edmonton are not. Is there inequality? I think they have opened a Pandora's box of challenges, constitutional challenges.
But I would rather have seen them go with the vote on Bill C-234. That bill was clear and we would not have been in the convoluted situation we are in now.
Paul Szabo Mississauga South, ON
Mr. Speaker, I want to thank the member for his thoughtful comments on the motion. It demonstrates how there are real issues to be discussed and dimensions and complexities which have to be looked at very carefully.
Clearly the position of the law prior to the amendments under 745, which only required two-thirds of a review panel to provide for consideration for early parole, was dealt with in the revisions. Now, as the member well knows, there is a provision for the judge to stop the process even before it gets to that review panel. Now it requires the unanimous consent of the 12 member panel before an application can be made to the parole board.
I just want to thank the member, although I do not agree with all of his points, for being thoughtful and constructive and not pulling the same kind of approach that others might have chosen.
The question I have for the member has to do with the description and insinuation the member made that somehow at the end of 15 years the prisoner can get out. I think the member will know, as he has probably done his homework, that 15 years is the point at which one can apply but the reality is that the time at which a person might get out under the provisions could be as late as in the 22nd or 23rd year of their sentence.
Would the member please confirm and not leave the impression that it is 15 years and a person is out and that there really is a period during which consideration might be given to some measure of control.
François Langlois Bellechasse, QC
Mr. Speaker, the hon. member for Mississauga South has touched on an important point.
He will allow me to point out that in 1976, when section 745 was adopted, the average length of detention for capital murder in Canada was 13.2 years. The penalty for what was later to be called first degree murder had, therefore, been made far more severe.
In my opinion, then, those trying to prove that sentences have got lighter are barking up the wrong tree, or else I have a poor understanding of the history of our Criminal Code. Perhaps I need someone else to explain it to me, but since 1976 sentences have
become harsher, given that there has been no death penalty since 1962.
From 1962 to 1976, however, the length of time a person was imprisoned for capital murder, premeditated murder, or murder in the first degree, was barely over 13 years.
We now have a formal guarantee that the minimum is 15 years. I am convinced that, with the present wording of section 745, it will be much more, in the order of 20 or 25 years. So people must stop circulating this false idea that sentences are getting lighter.
Personally, I am an abolitionist, having assumed in my own life, as well as in the lives of those I have had a hand in educating, that killing someone to teach him that murder was unacceptable was no way to teach anyone anything. A second execution, even in the name of the state, makes no positive contribution. More people are left to mourn, more wounds are opened, and I cannot morally support the way things were done in the past.
Times have changed, and fortunately things are different today. But we are still faced with the problem of section 745, because this is what today's motion is about. It is not settled. This debate will probably turn into an endless one, to be started up again every time it is necessary.