Bill C-36 (Historical)

Serious Time for the Most Serious Crime Act

An Act to amend the Criminal Code

This enactment amends the Criminal Code with regard to the right of persons convicted of murder or high treason to be eligible to apply for early parole.

Serious Time for the Most Serious Crime Act

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

Madam Speaker, I did not think my turn was coming up that fast, but I am ready, to echo the words of a famous Quebec political party leader regrettably reelected for another term. That said, I wish to go a bit further than my colleague did a few moments ago in his words to the colleague from Mississauga South. It is important, because the Liberals are the ones who made major changes to the Criminal Code and who came up with what we are discussing today: the faint hope clause. It is extremely important.

It may be a rarity to do so in this House, but I will quote from an article in Le Devoir. In her most interesting article on Bill C-36 on June 10, headed “The strength of intimidation”, Manon Corneiller wrote as follows:

The last Conservative bill has been introduced [...]. Bill C-36 would eliminate a provision in the Criminal Code known as the faint hope clause. Among other things, that clause makes it possible for a person who has been found guilty of first degree murder and sentenced to life imprisonment with possibility of parole after 25 years to seek permission to apply for parole after 15 years.

This also applies, and I will come back to this, to second degree murder.

The opposition parties—

I presume that includes us. Perhaps not the Liberals, after yesterday's coalition, but it does mean us. So, continuing:

The opposition parties think that the justice committee is better equipped [a response to the question from the colleague from Mississauga South] to examine the bill, and it will go there because they are planning to support the bill at second reading [which we do]. None of the three parties has stated its final position, however [it is clear]. There are many reservations.

Then we have the words of the member for Windsor—Tecumseh.

And what if the lack of hope crushed the desire for rehabilitation of the convicted and increased violence and the problems in prisons?

The journalist continues:

It is to the parties' credit that they want to study these bills carefully, because they will affect the lives of thousands of people. But their cautiousness is dictated in part by political imperatives and a direct reaction to the Conservative approach. The opposition avoids opposing a bill automatically, especially if it means defending the rights of the worst criminals.

We remember all too well the fate the Conservatives reserved for the former Liberal leader...The courts finally forced the Conservatives to give in...

The fear of being targeted in their turn by the Conservatives' populist and simplistic attacks is pushing the Liberals and, to a lesser extent, the NDP to watch what they say. Opposing a prejudice sometimes requires pointed arguments that rarely filter down to the public.

That is the whole debate. The faint hope clause is extremely important. We are told that we do not care about the victims. Yet victims are the reason for section 745 and the amendments to the Criminal Code. The Conservatives will have to understand that. One can see from the current provisions concerning the faint hope clause—and I will come back to this later if I have time, because I have a lot to say about it—that concern for victims is paramount. Why? Because there is no worse crime than taking a life, committing murder. It is the worst crime a person can commit. If we do not look after the victims in the case of murder, I do not know who will.

The Bloc Québécois believes that one priority is to ensure that this bill respects victims. They will have to be told how the bill works. There have been many changes to the legislation. Canada used to have the death penalty, which was abolished and replaced with life sentences. Offenders sentenced to life for first-degree murder must serve a minimum of 25 years.

For the people who are watching us, I will add that a first-degree murder is a premeditated murder. A person who analyzes, thinks, makes a decision and obtains the means to kill someone is committing premeditated murder. I have just one example in mind: the settling of accounts by the Hells Angels. It is clear that when the Hells Angels decided to end the reign of the Bandidos, they committed first-degree murders. These were premeditated murders.

Second degree murders are unpremeditated. My colleague from Hochelaga rightly mentioned an example earlier in this House. These are probably the most common and most familiar murders. Someone shows up at a place, finds his spouse with another person, and in a sudden act of madness decides to get rid of them, finds a weapon and kills them, commits an unpremeditated murder. This is a second degree murder. It remains a murder, however, and liable to life imprisonment.

Over the years, the options were improved, although it is difficult to use that term in this context. In my opinion, legislators were wise. They said that there were two options for a killer: either he himself is killed or he is kept in prison. If he is kept in prison, a solution has to be found. Might this person return to society one day? Legislators said he could return to society if he demonstrated improvement, demonstrated that he had changed.

It is the opinion of the Bloc Québécois that section 745.6 and following, as amended over the years, have three main purposes. First, they offer some hope for offenders who demonstrate significant ability to rehabilitate. I do not have to give names in this House, but we have heard testimony from informers and persons who testified in famous cases involving the Hells Angels and organized crime. They have appeared saying that they were killers, that they were paid to kill and they killed. Such a person must not return to society unless he has made very significant progress.

Furthermore, the objective of the faint hope clause was to motivate good conduct in prison and recognize that it was not in the public interest to continue incarcerating certain offenders beyond a period of 15 years. That being said, we need to look at how this works. There have been changes over the years, but an individual has always been permitted to come back before the court. If he is sentenced to 25 years, he will be able to come back. He had the faint hope clause. This is important.

It must be explained to the population that respect for victims is very important. In the bill before us, respect for victims and their families is very important. The murdered person can no longer appear to testify, but he leaves a family, a spouse, children and relatives in mourning. Obviously, recalling the murder is extremely difficult for these persons. Do we have to mention what happened at the École Polytechnique?

For the victims of these events, and for their parents, even though the murderer died by suicide, simply talking about the tragedy, as we saw this year, since it was the anniversary, is painful. December 6 will be forever stamped on these people’s lives.

Not everyone has access to the faint hope clause.

We have to understand that in the criminal lawyer’s jargon, an individual who commits first degree murder is said to have to serve a minimum sentence of 25 years. Second degree murder results in a sentence of between 10 and 15 years. Judges generally decide when the person may be released.

We will recall the unfortunate Latimer case, where the father killed his daughter because she could never have recovered. That was considered to be second degree murder. He was sentenced to serve a minimum of 10 years in prison. After his 10-year term, he came before the National Parole Board to make an application.

In assessing a murder, by following an extremely stringent procedure, we ensure that victims are respected and we ensure that we are not releasing criminals.

The individual must appear before the chief justice of the superior court or a judge designated by them to hear the case. The individual may apply to a judge of the superior court after serving the minimum required, 10 or 15 years, generally, for second degree murder, and 15 years for first degree murder. The chief justice of the superior court in the province where the murder was committed may allow the individual to apply for parole after considering all the facts. The individual must satisfy the judge, and the judge must consider all the facts. What kind of murder was it? What happened? Is it probable that the inmate will persuade a jury? If the judge allows the individual to appear before them and allows the individual to make an application, then the second step is reached. The judge then empanels a jury.

Since 1997, the jury has had to unanimously agree to allow the inmate to apply for parole. Before 1997, two thirds was sufficient. Now, it must be proved to the jury as a whole. The public has to understand that the fact that a judge agrees to hear a case does not mean that the judge will empanel a jury and the individual will automatically be released. No, it does not work that way.

The judge hears a case and has the individual appear before them. The individual calls witnesses, who are generally people from the Federal Training Centre. They explain that in 15 years the individual may have changed. That is when the judge empanels a jury. The jury cannot release the individual. The only thing the jury can do is say unanimously to the individual that it is satisfied that he or she may make an application for parole. The individual is not released yet; far from it. On some occasions a judge has asked for a jury to be empanelled, a jury was empanelled, evidence was given before the jury and the jury came to the conclusion that the individual could apply to the National Parole Board, and the individual was not released.

If the applicant passes the first two stages, and the jury permits him to apply for parole, he then has to appear before the National Parole Board. That is important.

If some people think that victims are not protected, they would do well to listen to the statistics. I am not talking about 15 years ago. I am talking about April 9, 2009.

On that date, 265 applications were submitted, and 140 applicants were given a reduced period of parole ineligibility. That is not many. This means that the judge, jury and National Parole Board do a very good job. One hundred and forty people were given a reduced period of parole ineligibility. They have not yet been released on parole. Of that number of applicants, the National Parole Board gave the reduction to 127, 13 of whom subsequently returned to prison—I will come back to this if I have the time—3 were deported, 11 died, one was on bail, one was in provisional detention and 98 met the conditions of their parole.

I can already see a Conservative colleague rising to ask me whether the 13 had re-offended, since they went back to prison. I asked the question. None of the 13 returned to prison for reasons of violence, such as armed robbery and so on. It was nothing like that. They broke the conditions of their parole. People have to understand. If an individual is released on parole before the end of his 25-year prison sentence, in the 18^th year of his 25-year sentence, he is subject to the requirements of parole between the 18^th and 25^th year. For 7 years, he is under very strict surveillance.

The proof is that there have been no repeat murders by those released on parole. There has been no violence, with all due respect to the member for Pontiac. No violence was committed by those paroled after committing murder. The finest example concerns Mr. Dunn, a lawyer, who killed his colleague, Mr. McNicoll, in Lac-Saint-Jean. It was a premeditated murder. He was released on parole after serving between 15 and 17 years of his prison sentence. Since then, Mr. Dunn, obviously no longer a lawyer, helps prisoners return to society. There you have the faint hope clause.

The Conservatives would like to eliminate the faint hope clause with this bill. In committee, we will have to look at it very carefully. I would like people who have served prison sentences for murder and benefited from the faint hope clause to come and testify before us. I say, with respect, that the system functions very well at the moment. It is under supervision.

We agree to this bill's being studied in committee. However, as I was in criminal law for a number of years, I believe deeply that the individual, however bad a criminal he may be, must be given the opportunity to return to society. Otherwise, we should give him the option to die in detention or give him the choice. We do not know, but some individuals have returned to society and become active members again even though they have committed serious crimes, murder being the worst.

I am having a very hard time with the idea of removing the faint hope clause. It would take a lot to convince me. I believe, however, that I can convince my colleagues. At the moment, there is such supervision that it would be a very serious error to not continue to allow individuals, the worst criminals, to benefit from the faint hope clause.

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

Madam Speaker, I listened carefully to my colleague. I will read something said by his colleague, the NDP critic on the committee, because I think it is fundamental. He said something like this: “And what if the lack of hope crushed the desire for rehabilitation of the convicted and increased violence and the problems in prisons?

My question has to do with this observation. We are dealing with the worst crime, namely murder. Bill C-36 concerns the faint hope clause. Does he believe that adopting this bill in its present form will lead to a reduction in violent crimes committed in our society, murder in particular?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Madam Speaker, I am pleased to rise on Bill C-36, An Act to amend the Criminal Code.

I would like to preface my remarks by saying there is no doubt that the most compelling argument for Bill C-36 is indeed the victims. Under the current faint hope clause, the victims have to relive the nightmare of the crime that was perpetrated against their family, against their loved ones. There is no doubt that the government has a compelling argument. It is for that reason, I think primarily, that in this corner of the House we will be voting in favour of Bill C-36 in order to get it to committee.

As the House well knows, the parliamentary process is set up with a system of checks and balances. This is something that is extremely important in this particular case for this particular bill. We have second reading, which is debate in principle on the bill, the principle of whether or not the faint hope clause should essentially be eliminated. From there the bill goes to committee, and that is the point where we will certainly be pressing to hear from every organization. Whether we are talking about victims organizations, victims services, those who represent parolees, police officers, parole officers, everyone in the system needs to be heard at the committee level so that we can ensure that the legislation does what the government purports that it does. At the same time we are ensuring our place in the House as the effective opposition and that amendments are made to the legislation to ensure that there are no unintended consequences or collateral fallout and that indeed we feel that this is in the best interest of the country and of Canadians.

I certainly hope the committee process will be extremely serious, in depth and effective in ensuring that the committee has heard from everyone in a consultative process that allows Canadians from coast to coast to participate. Often committee deliberations are done in a very perfunctory way. Often proposed witnesses who are submitted by the NDP are rejected out of hand. We hope that will not be the case and that due diligence will be done at the committee level.

Then we will bring the legislation back to the House to consider amendments that other members of the House may want to put forward at report stage. The final stage is third reading where we take a very in depth look at the legislation itself. At that point the question is whether or not to pass the legislation as amended.

At this point, the second reading stage, we are saying in principle that we are certainly willing to look at the bill because of the compelling arguments that are raised with regard to the victims having to relive the nightmare of their loved ones.

The real test I think will be at the committee stage to see to what extent the government is willing to hear voices from across Canada, very learned voices and those who have a key stake in this legislation, either way. From that point then I think we can look to see how the legislation can be improved.

There is no doubt in my mind that this legislation can be improved and must be improved, but that will be something for our justice critic, the member for Windsor—Tecumseh, and other members of the justice committee to do when that time comes.

A social democratic approach to the criminal justice system is based on ensuring that the victims are responded to by the system. That is why I put forward Bill C-372, which essentially proposes changes to the Criminal Code to ensure that victims' restitution is part and parcel of the judicial process and no longer an option for judges, but mandatory as part of the process. I put forward that amendment to the Criminal Code because I feel there is a profound argument that can be made that victims are often lost in the system.

It is essential for parliamentarians to hear the voices of victims and to ensure that their voices are heard every time legislation is brought forward. The victims' voices are part of a broader consultation process that has to take place.

We in this corner of the House have been advocating for some time for a comprehensive approach to the criminal justice system. Legislation obviously is one of the pillars. We must as a Parliament regularly take into account whether or not legislation is working, whether or not the Criminal Code is working and what adjustments have to be made.

For the government to limit its approach simply to legislation does a disservice to Canadians. There are other pillars of the justice system that have to be taken into consideration.

Since emerging out of the CCF, the NDP's hallmark in Parliament has been the need for substantial funding for crime prevention. The most effective approach to the criminal justice system is to stop crime from being committed in the first place. By investing in crime prevention services and crime prevention strategies, many other countries around the world have reduced their crime rate, and that means fewer victims.

By ensuring that the voices of victims past are heard ensures fewer victims in the future. We will have fewer victims in the future by investing in an effective way in crime prevention. Tragically, the Conservative government has done exactly the opposite. It has cut back on crime prevention programs and crime prevention strategies. It has done the exact opposite of what it needs to do. Most Canadians would want the government to increase crime prevention funding and crime prevention strategies.

Funding is a major pillar that the government has far from increased. If the Conservatives were really concerned about criminal justice issues, they would put more funding into crime prevention. That would ensure an effective way of reducing crime. The government has done the opposite.

Study after study has shown that for every dollar invested in crime prevention, we save six dollars later on in policing costs, in court costs, in incarceration costs. It just makes good economic and fiscal sense. There is no more effective argument for crime prevention programs than the economic argument.

The NDP has been the foremost advocate for enhanced funding for crime prevention. We will continue to press the government to do the right thing and to invest in crime prevention rather than cutting back.

Another pillar of crime prevention strategy in a criminal justice system is adequate funding for policing. The government committed in past elections to fund an extra 2,500 police officers across the country. That promise simply has not been kept. Police officers in various parts of the country are frustrated by the fact that the government has chosen not to keep its promise.

Having 2,500 more police officers on the streets of our cities would make a difference in the effectiveness of policing. Police departments are overburdened in many parts of the country. Police officers are often being asked to do far too much. If we want our police forces to be effective, we have to provide an effective number of officers, and that has not happened. Again that is an area in which the government fell short.

This is not only about funding for police officers. This is also about respect, or lack of, that has come from the government toward police officers.

Three years ago in the House we adopted a motion for a public safety officer compensation fund. The Conservatives at that time voted in favour of it, and yet they have steadfastly refused to provide a compensation fund for the families of those police officers and firefighters who die in the line of duty. There again the government has fallen short.

The Conservatives have fallen short on court funding as well. Because of that, there are bottlenecks in the court system.

There are a number of pillars in the criminal justice system. Bill C-36 deals with one of them, but the other three, lamentably, have been neglected by the government.

In this corner of the House the New Democratic Party caucus will vote to move this forward to committee so we can have that strenuous examination of the bill, but we will certainly continue to keep the government's feet to the fire on the other pillars it has neglected.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to speak to Bill C-36.

At the outset, I am very eager to see this legislation passed on to committee, where we will deal with it. We look forward to hearing from the presenters regarding elements of the bill. I believe our caucus will have some very positive amendments to benefit victims and support the rights of victims and to improve the situation overall.

Back in 1976, Parliament abolished capital punishment and replaced it with mandatory life sentences for high treason and first and second degree murder. At the same time, ineligibility periods for parole were established. For high treason and first degree murder, parole ineligibility periods were set at 25 years.

In addition, the Liberal government introduced the 15-year judicial review, known as the faint hope clause. Warren Allmand, who was the solicitor general of Canada at the time, and those of us who followed the issues at the time remember him, introduced the new provision with the following comment, “to keep them in for 25 years in my view is a waste of resources, a waste of a person's life”.

I would like to advise the House, Madam Speaker, that I will be splitting my time with the hon. member for Burnaby—New Westminster.

Section 745.6(1) allows for people who are convicted of murder or high treason and who have served 15 years of their sentences to have their parole ineligibility period reviewed and possibly shortened. The process is heavily weighted in favour of the offender, from a victim's point of view. The emphasis is on rehabilitation rather than the crime itself. The impact of the crime is extremely traumatic when it comes to the family of the victim.

We want to demonstrate that Criminal Code Section 745.6(1), the application for judicial review, is not an automatic process. This process is very involved. A lot of steps have to be taken for anybody applying for the faint hope option.

Section 745.6(1) states:

Subject to subsection (2), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person (a) has been convicted of murder or high treason; (b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and (c) has served at least fifteen years of their sentence.

The exception brought in by the previous Liberal government a few years ago excluded people who were multiple murderers. I think we can pretty much all agree that this was a good idea.

Subsection (2) states:

A person who has been convicted of more than one murder may not make an application under subsection (1), whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

An application for a section 745 hearing is heard in the court. Section 745.6 requires that the chief justice of the province where the offence took place screen an application for judicial review. If the chief justice decides that the application may proceed, there will be a hearing. At the hearing, evidence is first presented by the applicant. Witnesses for the applicant usually include an applicant's family and friends, psychologists or psychiatrists, guards employed at the facility where the applicant is in prison and teachers if the applicant has taken any type of courses.

Representatives of the National Parole Board will also have been called to testify that even if the application is successful, the board does not always grant parole to these applications. The crown prosecutor may then present evidence regarding such things as the applicant's conduct and behaviour while incarcerated.

In terms of the role of the jury, because that is the next process, before the application is heard in court, section 745.6 requires that the chief justice screen an application for judicial review. If the chief justice decides that the application may proceed, the jury will hear the case. The jury must come to a decision after considering the following: the character of the offender after having served 15 years; the conduct and behaviour of the offender while in prison; the nature of the offence, based on the agreed upon facts in the case; the information provided by the victim; and specific matter the judge deems relevant to the application.

After hearing the application, the jury can make the following possible decisions: first, the offender can immediate apply for parole; or second, reduce the parole eligibility period by a specified amount of time; or third, the offender must serve the entire 25 years before parole eligibility. Even if the jury reduces the parole ineligibility period, the National Parole Board must still establish at a parole hearing whether an offender should receive parole. That is the third step in the process.

Not all applications to the board lead to an offender's release. In making its decision, the board must consider whether an offender's release will present an undue risk to society. In fact, the jury is asked a series of questions. One of the questions is, “Do you unanimously agree that the applicant's number of years in prison without eligibility for parole ought to be reduced, having regard to the character of the applicant, his conduct while serving his sentence and the nature of the murder for which he was convicted and the victim's impact statement”. It takes only one person out of the jury to say no and that is it.

This is an improvement over the previous legislation where, I believe, two-thirds of the jury had to agree. Now 100% of the jury has to agree. That improvement was made by amendments back in 1997.

In terms of the victim participation in section 745 hearings, we know, even in property crimes, a number of years ago, the victims were not given very good treatment. I can recall situations where people had break-ins to their homes, which is a very traumatic process for anybody who has ever gone through that, and they would get no help in from the police force and not a lot of sympathy in the process.

Particularly in my province of Manitoba over the course of the last 10 years of NDP government, and the Conservative government before that, the rights of victims were improved. The victim had a right to know the disposition of the case and was given updates and counselling, which is very important. I know of a situation where a person was involved in a robbery, whether the gun was real or not, the person to this day has had psychological problems in dealing with the situation. Nowadays there are provisions for people to have counselling when these events happen. This is a very positive for the victims.

Before 1997, it was left to the judge's discretion whether the jury would be able to consider information provided by the victims during the judicial review process. Section 745.6 now allows for the families of victims to provide information concerning the impact the crime had on them during the application hearing. Under section 745.6(3), the family of the victim may provide information, either orally or in writing, at the discretion of the victim or in any other manner that the judge considers appropriate.

Of course, while that is an important part of the process, people are also being victimized again when they have to appear at hearings when the applications for the faint hope clause are made—

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

Madam Speaker, I would like to congratulate my hon. colleague from Hochelaga on his work in committee on this issue, which is not an easy one.

It is not an easy issue, especially when it involves this kind of bill, and I would like to take the next few minutes to explain how I see things.

Since the Bloc Québécois has no objection to referring Bill C-36 to committee for examination, what sort of questions does my colleague think the committee should ask when studying Bill C-36, particularly before it goes any further?

As the previous hon. member said, the member for Hochelaga, who has not yet been called to the bar—unfortunately for us—will probably have some interesting things to say in committee.

What is his position? What does he plan to say? What questions would he like to see the committee members ask during their study of the bill?

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

Madam Speaker, I would certainly like to commend and thank the member for Hochelaga for his comments and for his passion on this issue. He is so passionate and wanted to speak some more, so I am going to give him the opportunity to answer a question.

He talked about the procedure and the effect on certain convicted individuals. He cited a hypothetical example of a spurned lover. He talked about the processes. However, at no time during his 20-minute dissertation did he talk about the victims,

I specifically want to ask him what effect he thinks Bill C-36 would have on the victims of crime, specifically the families of a deceased individual, by sparing them the emotional trauma of having to attend and sometimes testify at court proceedings under the faint-hope clause or hearings before the National Parole Board.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, Bill C-36 is a bill that the Bloc Québécois wants to see referred to committee, but I can offer no guarantees in this House that we will support the bill at third reading. We need more information. We want to understand the real impact of the bill, but obviously we think it is a bill that needs to be seriously considered in Committee.

In 1976, the death penalty was abolished and murder was reclassified, if you will, into two categories: first degree murder and second degree murder. In both cases, the punishment is imprisonment for life. The difference is in respect of parole eligibility. For first degree murder, the murderer must serve at least 25 years of their sentence before being eligible for parole. In the case of second degree murder, they must serve at least 10 years of their sentence, other than in certain exceptional cases, for example where the case involves an intentional murder under the Crimes Against Humanity and War Crimes Act, where it was a question of the circumstances surrounding the commission of the murder, or where the murder was a criminal organization offence.

The faint hope clause, as it is called, is found in section 745.6 of the Criminal Code, which provides for possible eligibility for parole. That section was added to the Criminal Code when the death penalty was abolished and murder was reclassified as first degree or second degree murder. We must remember the reason why section 745.6 was added to the Criminal Code. There were essentially three reasons. There was a desire to offer hope to offenders who demonstrated some capacity for rehabilitation; there was a desire to provide motivation for good conduct in prison; and there was also a desire to recognize that it was not in the public interest to keep someone incarcerated, in certain circumstances, beyond 15 years. Obviously, I would remind all members of this House and all those at home watching that the faint hope clause is an exceptional provision that comes into play before eligibility for parole.

The faint hope clause procedure, as my good colleague from Abitibi knows, has relatively clear rules. In order for that provision, which is found in section 745.6 of the Criminal Code, to apply, there is of course a three-step process. The first step is screening by a judge. If my information is correct, that is in fact the chief justice of the superior court. The judge examines the application and must determine the potential, the real prospect that a jury will agree to allow the applicant to be granted early parole. So first, the chief justice of the superior court where the murder was committed must hear the application. Second, the judge must agree to empanel a jury of 12 members, and that jury must agree, by a two-thirds vote, that parole, what I would call early parole, will be granted. And third, of course, the application is submitted to the National Parole Board, which has full authority to accept or deny the application. There is a clear set of rules for the process: it is examined by the chief justice of the superior court, a 12-member jury is empanelled and the application must be accepted by two thirds, and it is assessed by the National Parole Board.

I might go into a little more detail regarding the process to be followed when one wishes to invoke section 745.6. I would say that, yes, persons who commit first degree or second degree murder must be given exemplary sentences. However, up to a certain point, should we not ask ourselves as parliamentarians whether there are not circumstances where it would be desirable for an individual, after 15 years of detention without parole, to be able to exercise this provision, since justice is never automatic, and never one-size-fits-all? With its three steps, does the process not offer sufficient guarantees to stand as a safeguard? People will study the merit of this application. There is no risk of frivolous applications that will be accepted even though an individual does not deserve access to early parole.

I am going to describe the three steps in some detail.

First, the applicant must convince the chief justice or a designated judge in the province of the conviction. The applicant, who is normally behind bars, must convince the chief justice that there is a real possibility of the application being successful. For example, multiple repeat offenders, that is, people who have committed several murders, have no chance of their application succeeding. The application is not even admissible, and the chief justice could not permit the process to be started.

If the chief justice or the designated judge finds, to his best understanding of the case, that two-thirds of the jury is not likely to allow the applicant access to some kind of early parole, under section 745.6 of the Criminal Code, the applicant fails. The judge must then set a waiting period, which is generally two years, before a new application may be made. The judge may even set a longer period. For example, I am an applicant. I am presently on parole. I show real signs of rehabilitation. I have served the 10 or 15 years of detention without parole. I appear before the chief justice of the superior court. He may tell me to come back in two years or some other time period which he finds to be reasonable.

Second, the applicant must convince a jury of 12 citizens who have to decide on this. Let me go back, I have made one little error, reminding me of my fallible human nature. It was like that before, but the process was revised in 1999, and the jury now has to decide unanimously, not in a proportion of two-thirds. I would have expected the hon. member for Abitibi—Témiscamingue to whisper that to me. I do not hold it against him, but I urge him to remain vigilant. So it is not two-thirds of the jury, but the entire jury that must accept the application for early parole.

If the jury refuses, we know how it works. A jury is constituted from certain lists. Of course, in a trial, the way that the public is involved in the administration of justice is through the constitution and presence of a jury. If the jury refuses, but does not prohibit the filing of new applications, another application may be made, once again, after two years or after a longer period, as the jury may decide. If the jury accepts, on the other hand, it has to set a new period, which will be reduced.

Third, the jury will obviously consider the application, deliberate and approve or reject it. If the application is approved it will be sent to the National Parole Board.

I looked for statistics that would give us an idea of the scope of this phenomenon and have some. As of April 9, 2009, relatively recently, 265 applications had been submitted under section 745.6. Of that number, 140 had been approved and so 140 individuals had been given a period of time prior to their eligibility for parole.

With a ratio of 140 to 265, are we not approaching 45% or 50%? Can I say that?

The National Parole Board granted parole to 127 applicants. I will now provide some slightly more specific statistics. Thirteen individuals subsequently returned to prison—we can speculate on the fact that they were returned for breaking parole and failed to meet the conditions of it—three were deported, 11 died and were recalled to heaven—fate, it could be called—one was on bail, one was in provisional detention, and the most important of the statistics, 98 individuals of 127—we are closer here to two thirds—met the conditions of their parole.

In our assessment of the situation, we have to say that, when the stages set out in section 745.6 have been followed, two thirds of the individuals who were eligible early for parole met the conditions of it.

My colleague from Argenteuil—Papineau—Mirabel is wise and as a solicitor misses nothing. I do not know whether it is because he is used to this with wills, but he reminded me that adding the 11 dead to the 98 individuals who met the conditions of their parole makes the proportion higher than two thirds.

I would like to return to the 98 individuals, because it is here the Bloc's question lies. Why is there a need to repeal a provision of an exceptional nature? We are talking about 127 individuals in all these years. Is it not reassuring in the administration of justice to know that the provision exists?

People can commit second degree murder when they lose their mind, but it is still a reprehensible act and there are still innocent victims. It is certainly not my intention to minimize the seriousness of second degree murder. However, are there not situations in which individuals sentenced for second degree murder with no previous record show they are truly rehabilitated?

I will give you an unfortunate but convincingly instructive example.

Madam Speaker, allow me to give an example. You learn that the person you love, who has been sharing your life for a number of years is, unfortunately, cheating on you with the neighbour, and the community knows it. You are in a rage and commit murder out of jealousy. You are a respected individual and have responsibilities in your community.

You are liked by her peers. You have always led a good life. You have had significant responsibilities in the community.

Then, in a moment of craziness, you kill your her husband when you find out he has been cheating on you. You are therefore convicted of second degree murder. This is an act, of course, that we as a society must punish severely. You find yourself behind bars. In this specific example, though, would you not be the kind of person who should be eligible for early parole?

If this Conservative bill ever passes and the faint hope clause does not exist, would we have made a mistake? We would have deprived ourselves of a provision in the administration of justice that can be beneficial in some circumstances.

I want to provide a few statistics on the people who could be eligible. At the present time, 4,000 prisoners are serving life sentences in Canada. According to the most recent statistics of April 9, 2009, 1,001 prisoners could be eligible for early parole. Four hundred and fifty-nine of them have already served at least 15 years of their sentence and could therefore apply. When the bill gets royal assent, at least 459 people will be eligible to apply under section 745.6 of the Criminal Code. Five hundred and forty-two offenders will not have served 15 years yet but will soon be able to apply. On average, 43 of the 1,001 prisoners will be able to apply every year.

If things continue and section 745.6 is maintained, nearly 50 people a year will be eligible. This does not mean, of course, that the juries or the National Parole Board will grant their request, but they will be eligible.

Bill C-36 would entirely eliminate—and before the day on which the change comes into force—the right of all offenders to apply for early parole who were convicted of first or second degree murder or high treason. In addition, the last clause in the bill tells us this day will be determined by an order in council.

Parliamentarians must realize that if Bill C-36 passes, section 745.6 of the Criminal Code will be revoked. I just gave the example of a crime of passion. In committee, we are going to try to find out who has benefited from this section in order to know whether it should exist. We have no fixed opinion yet. We are prepared to listen to all sides. Just as much, though, as we want to send this bill to committee, we are concerned about the possibility that we might be depriving ourselves of a tool that is well suited to certain cases.

The bill would also tighten the conditions under which all offenders convicted of first or second degree murder or high treason before the day on which the change comes into force may make an application, including those who are already serving their sentence. This means that there would be four changes to the current procedure. First of all, tougher selection criteria will apply for judicial review

Madam Speaker, you are indicating that my time is up but I started my remarks at 11:55. Since I was given 20 minutes to speak, I could continue until 12:20. Am I mistaken here?

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I want to thank my colleague from Niagara West—Glanbrook who did an admiral job this morning describing and outlining Bill C-36. I also wish to thank him for his efforts in moving the private member's bill in the last Parliament that would have rid the country of the faint hope clause and the inspiration of that private member's bill leading to a government piece of legislation. It is not often that happens. It is obvious that the government and the justice minister see the importance of moving this piece of legislation forward.

It is my pleasure to rise today to speak in strong support of Bill C-36, Criminal Code amendments that will put an end to the so-called faint hope provision. It is not often that we repeal or eliminate a provision of the Criminal Code, so some explanation of the faint hope provision is needed before we discuss the bill before us.

What is the faint hope provision? The faint hope provision applies to those who commit murder, the most serious offence in our law. The faint hope provision is in fact a section of the Criminal Code, section 745.6, which was first enacted in 1976 when Parliament replaced death sentences for murder with mandatory life terms of imprisonment and parole ineligibility periods: 25 years for first degree murder and a minimum of 10 years and up to 25 years for second degree murder, and 25 years for high treason.

Remember that a life sentence is indeed for life and for a murderer that is exactly how it should be. Offenders may eventually be released on parole after 25 years but those offenders are serving their life sentence under the conditions of parole.

The faint hope clause permits an offender serving a life sentence to apply for a chance to have parole earlier than prescribed. So after 15 years of a life sentence an application could be made for a reduction in the number of years of imprisonment without eligibility for parole.

I should emphasize that this not a parole application but rather a step before a parole application. The 15 years in prison does not reflect the severity of the crime of murder and the chance of parole after 15 years. It simply does not reflect what Canadians expect of a life sentence.

This government promised Canadians that we would get tough on crime, that we would hold offenders to account and we would show compassion and respect for victims and the families of victims.

The government has delivered with important reforms including addressing dangerous offenders, gun crime, organized crime, drug crime, auto theft and identity theft. This government delivers what it promises and Bill C-36 delivers on our promise to get rid of the faint hope clause and ensure that murderers serve sentences in jail until they are ready to be released on parole.

The people of Canada have long questioned why a murderer who receives a life sentence and is required to serve 25 years before seeking parole should be able to get any chance of parole earlier. Many victims have said that it is the victims that receive the true life sentence because their family member is gone forever.

Ironically, while 15 years may seem like an eternity for families mourning the murder of a loved one, 15 years seems far too soon for families to deal with a faint hope application by the offender and the possibility of a parole hearing.

Victims who have attended faint hope hearings have said that this process causes them to relive the whole tragedy of the family member's murder and the trial process that led to the conviction of the offender. No one asks to be a victim and no one should have to be revictimized again and again by our justice system.

Our justice system has changed over the last 20 years and victims now have a greater role. I have witnessed firsthand what victims' families have to go through in the St. Catharines community, what it means to have to face the possibility of a murderer getting out earlier than the sentence that he or she was given.

Some may suggest that victims of crime should simply rely on the crown and the judge, and avoid the additional trauma, but every family member of a murder victim will agree and will tell us that they are there for the memory of the victim, and to ensure that the judge is aware of the impact that the murderer has had on their lives. They want to ensure that the safety of the community and their safety is considered.

Bill C-36 addresses these concerns, but what exactly does the bill do? This reform will bar everyone who commits murder or high treason in the future from applying for faint hope. Those who commit murder after this law comes into force will no longer be eligible to apply for an earlier parole eligibility date after serving 15 years of their sentence.

The reforms in Bill C-36 respect the fundamental legal principle that the law cannot change retroactively to, in effect, change the sentence of a person who is already serving or awaiting that sentence. The bill will not bar an offender completely from access to faint hope in the same way as is proposed for future offenders. But even though some “lifers” will still be entitled to apply for faint hope, there will be new rules and new procedures in place.

These new procedures will apply to offenders who are already serving a life sentence, to those who are awaiting a life sentence, and to those who have been charged, but not yet convicted of first or second degree murder or high treason.

There is currently a three-step process involved for offenders applying for faint hope. The new procedures in Bill C-36 will make some changes to these three steps. First, an applicant must pass a screening test conducted by a superior court judge who will decide whether the applicant can go on to the next stage of the process.

Some courts have suggested that this test is relatively easy to meet. Bill C-36 makes this a higher test for offenders from “a reasonable prospect” to a “substantial likelihood” of success. This will screen out most of the most undeserving applicants.

If unsuccessful at the first stage, the applicant can apply again in two years unless the judge makes the period longer. Bill C-36 will increase this to five years. This will mean an offender with a 25-year parole ineligibility period, for example, can only make two faint hope applications at the 15 and at the 20 year mark.

The change from two to five years will create more certainty for victims' families about when a faint hope hearing will occur and reduce the trauma that these hearings often inflict on them. Victims' families will know that if they must face a subsequent faint hope hearing, it will be at least be five years down the road. It still is not easy, but it means it simply will not happen every two years.

Second, at present, an applicant who successfully gets past the first stage must convince a 12 member jury that he or she should be able to apply for early parole. If the jury unanimously agrees that the offender should be able to apply early, it also decides when that application may be made. If the jury says no, the offender can reapply to a judge at two years unless the jury makes that period longer. Bill C-36 will change this to a five year period.

Under the current system an offender can apply for faint hope at any point after reaching 15 years in his or her life sentence. Bill C-36 will set a three month window on faint hope applications. This means that once an offender is eligible to apply for the faint hope, the application must be made within three months of the date of becoming eligible. If this three month window is missed for whatever reason, the offender will have to wait a full five years to apply again. This offers victims some certainty about when the faint hope application may arise rather than wondering when they will be faced with an application that the offender could bring at any time after the 15 year mark.

Third, in the event that the offender is successful and they are given a chance to apply for parole earlier than prescribed in their sentence, they must then apply to the National Parole Board which will determine whether parole should be granted and on what conditions.

Bill C-36 is not making any changes to the law that governs parole, only to the faint hope or the step before parole.

In summary, these procedural changes will apply to everyone who commits murder, or who is arrested for murder, or who is convicted for murder before the date the amendments come into force. All those who commit, or are arrested for, or who are convicted for murder on or after the coming into force of the bill will not be able to apply for faint hope at all.

Bill C-36 closes what has been described as a “loophole for lifers” in a way that balances respect for the law with respect for the rights of victims and their families.

This government stands up for victims of crime and stands up for law-abiding people of Canada. Bill C-36 is an important step in our strategy to hold offenders accountable and to ensure truth in sentencing. Serious crime deserves serious time and Bill C-36 reflects that goal.

I urge hon. members to give the bill their full support.

[Dean Allison, Conservative, Niagara West—Glanbrook, ON]

Mr. Speaker, I will be splitting my time with the member for St. Catharines.

I am very pleased to speak to this very important bill that will fulfill our platform commitment to repeal section 745.6 of the Criminal Code, the so-called faint hope clause that allows a criminal serving a life sentence to apply for early parole.

I would first like to commend the hon. Minister of Justice for bringing forward this legislation. This issue is an important one to me. In the last Parliament I was pleased to table a private member's bill, seconded by the hon. member for St. Catharines, that dealt with this very issue.

The Criminal Code currently provides that the offences of first and second degree murder have mandatory terms of life imprisonment. These offences also have mandatory periods of parole ineligibility.

For first degree murder, an offender must spend a minimum of 25 years in prison before being eligible to apply for parole. For second degree murder, an offender must spend a minimum of 10 years in prison before being eligible to apply for parole. This minimum 10 year period can be increased by a sentencing court up to a maximum of 25 years, depending on a variety of factors, including the circumstances of the crime.

While this may seem like a very long time, the reality is that the faint hope regime provides a mechanism for offenders to seek to have this parole ineligibility period reduced. The current faint hope process is threefold.

First, an offender must convince a judge that he or she has a reasonable prospect of success, that the application will succeed. The courts have already told us that this judicial screening test is low and is not much of a hurdle. Second, if the judge is convinced, the applicant can bring the application for early parole to a jury. The offender must then persuade the jury of 12 ordinary Canadians to unanimously decide to reduce the number of years of imprisonment that the applicant must serve without eligibility for parole. If the applicant is successful with the jury, at the third stage of this process, he or she may proceed directly to the National Parole Board to apply for parole.

Most successful faint hope applicants end up being paroled. There are several important time limits for unsuccessful faint hope applicants that are important to know for the purposes of understanding the reforms proposed in Bill C-36.

If unsuccessful during the first two steps in the faint hope application process, the judge or the jury can allow the applicant to reapply to a judge at a later date. The judge or jury may even decide that a particular applicant may never apply again. However, if the judge or the jury rejects the application but does not bar further applications or set a new date at which the offender may reapply, a minimum statutory time period kicks in and the applicant can automatically reapply in two years.

As I mentioned, the majority of those who are successful on a faint hope application are ultimately granted parole by the National Parole Board. What this means is that murderers who are supposed to be serving up to 25 years in jail before applying to the National Parole Board are getting out of prison earlier than they would be if they had to serve the entire parole ineligibility period that they were given at sentencing.

The rationale for the bill before the House is very simple. Allowing murderers a chance, even a faint one, to get early parole is not truth in sentencing. Truth in sentencing means that those who commit the most serious of crimes do the most serious time. That is what Bill C-36 aims to do, to restore truth in sentencing for murderers and to keep dangerous criminals in prison for longer periods of time.

I now propose to delve a little more deeply into the important reforms we are proposing in the bill. The proposal is, in its simplest form, twofold: repeal the faint hope clause for all future murderers and toughen the regime for murderers currently in prison.

With respect to the repeal, the bill would eliminate the faint hope regime for all those who commit murder or high treason after the coming into force of the act. As a result, these offenders would have to serve their entire mandatory parole period that was given at sentencing.

For example, if individuals commit murder after the bill comes into force and are convicted of first degree murder, they would have to serve the full 25-year parole ineligibility period before being eligible to apply for parole. Under the current regime, these murderers, those who have intentionally or unlawfully taken a life, would be able to apply at the 15 year mark of their sentence to have the 25-year parole ineligibility period reduced from 25 to 22, 20 or even 15 years.

Under the new regime proposed in Bill C-36 these murderers would have no chance at any point before the expiry of their 25-year parole ineligibility period to apply for parole. The faint hope regime would be gone, as we committed to do. No more would these murderers get the chance to apply to get out of jail early.

To be compliant with the charter, the repeal would not apply to those currently serving a sentence. Those currently in the system would still be able to apply under the faint hope regime. However, the reforms include a well-tailored scheme that would considerably toughen the regime for them.

This new regime would establish a higher screening test at the first stage where the judge examines the application. As I mentioned, the courts have indicated that the current test, a reasonable prospect of success, is not that high a hurdle.

We will make this test tougher. Applicants for faint hope would have to prove that they have a substantial prospect that their application will proceed. This would prevent less worthy applications from going forward.

We are also proposing a longer minimum period of time before unsuccessful applicants can reapply to a judge. Right now, the minimum period an offender has to wait to reapply to a judge is two years. Under our proposal, the individual would have to wait a minimum of five years.

For example, if a murderer who has served 15 years applies and is rejected by the judge, that offender would have to wait at least five years or until the 20 year mark of his or her sentence before reapplying.

The reforms also propose a new five year delay period during which offenders cannot apply if they fail to submit an application within a new three month window for faint hope applications.

The three month time limit would apply in the following situations.

First, it would apply to all those offenders who have served at least 15 years of their sentence and have not yet applied. There are many offenders in prison now who have served 15, 16, 17 and more years but who have not yet applied. These offenders would have to make an application within three months of this legislation coming into force or they will have to wait five years.

Second, it would apply to those offenders who are serving a sentence and have not reached the 15 year mark. These individuals could have served four years or eight years or 10 years when the bill passes. At the 15 year point exactly, all of these murderers will have to bring an application within three months or wait another five years to do so.

It is important to note that these proposals would also ensure that offenders do not keep victims' families anticipating whether an application will be forthcoming.

As I noted briefly, if under both examples an offender does not apply, the proposals in Bill C-36 would impose a five year period following a three month limit during which an offender could not apply again.

For example, offenders who have served 15 years at the coming into force date, but do not apply within the three month limitation upon reaching this date, will have to automatically wait until the 20th year of their sentence before bringing a first application.

Third, the three month limitation will apply at the expiry of the longer statutory minimum period of time of five years, for any offender who reapplies to a judge. If offenders apply at year 15 and a judge determines their application will not go forward to a jury, the individuals cannot apply again until the 20 year mark of their sentence.

At that point, the 20 year mark, the three month time limit starts to run. Once it expires and the offenders did not bring an application, they could not reapply for another five years.

Essentially, these reforms provide a higher hurdle at the outset for offenders by ensuring that they must bring an application or reapply within the new limitation period, three months, or wait the statutory mandated five years.

In short, these proposed reforms include this well-tailored scheme to respond to concerns raised by the public and by victims that the faint hope regime as presently constituted allows for far too lenient treatment of murderers.

The reforms set out in Bill C-36 would allow us to meet the concerns of Canadians, that murderers do the time they have been given and stay longer in prison than they do now.

These proposed reforms would also ensure that the families and loved ones of murder victims are not forced to rehear the details of horrendous crimes again and again as they are sometimes required to do under the present regime.

I support the bill and I call on other members of the House to do so as well.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have the opportunity to participate in the debate on Bill C-36, An Act to amend the Criminal Code, on the right of persons convicted of murder or high treason to be eligible for early parole. The short title of the legislation, creatively crafted by the Conservative government, is the “serious time for the most serious crime act”, which is a bit of a strong misnomer for the legislation.

From outset, the principle of the legislation, which is to eliminate the possibility of revision to parole for people who have committed murder or who are sentenced to life for high treason, is completely wrong. I am strongly opposed to the principle of the legislation. We are not well served by this process of a judicial review, of citizen review in fact, and the faint hope clause should not be part of our criminal justice system.

We have been well served by this. It has encouraged rehabilitation in our prison system. It has allowed for a measure of discretion to review the parole eligibility of people who have been sentenced to a life in prison. It has also encouraged a strong measure of citizen involvement in making the decisions on that very important process.

The legislation takes us absolutely down the wrong road, with no evidence that could support it. I do not think we have any evidence that this will make Canadians safer and that this will improve any of the outcomes we hope for from our criminal justice system or from our corrections system.

The current Section 745.6 of the Criminal Code, dealing with judicial review, enables offenders serving life in prison, with parole ineligibility periods of more than 15 years, to apply for a reduction of that period. The review is not intended as a forum for retrial of the original offence. The focus is instead on the progress of the offender after having served at least 15 years of his or her sentence. That is the description from the Department of Justice of the intent of the legislation.

It is important to review the process that is involved when the faint hope clause is engaged by someone serving a life sentence in prison. The process people have to go through is a very rigorous one that involves several stages.

The first stage is an application to the chief justice of the province in which the person was convicted. The chief justice, or a designated Superior Court judge, reviews the written materials from the crown and the applicant. Then that judge determines, on the basis of the written materials, whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed. If the judge decides that, the next step is a jury is empaneled to hear the case. If the judge decides there is no reason to proceed further, the appeal process stops at that point and there is no further follow-up.

The jury, when it is constituted and empaneled, then considers a number of issues when it looks at the application from the person who is imprisoned. It considers, when it is determining whether there should be a reduction of parole ineligibility, the character of the applicant, his or her conduct while serving the sentence, the nature of the offence, information provided by the victim's family members about how the crime has affected them, and any other matters the judge has considered relevant in the circumstances.

A panel of 12 citizens considers those factors and makes the decision about the reduction of the period of ineligibility. The decision of that jury, to reduce the ineligibility period, must be unanimous. We are not talking about a simple majority or anything like that. The jury can reduce the parole ineligibility period immediately or at a later date, or deny any reduction.

When the jury unanimously decides that the number of years to be served should be reduced, it then decides by a two-thirds majority the number of years that must be served before the inmate can apply to the National Parole Board. If the jury decides the period of parole ineligibility is not to be reduced, it can set another time at which the prisoner can again apply for judicial review. If no date is set, then the prisoner can reapply after two years for this process to be engaged again.

It is a very complex process. The process initially involves a judge and then a jury of 12 citizens, two of the important features of our system. There is judicial discretion involved and there is a strong citizen involvement component. The community is absolutely represented in the decision that someone's parole should be reduced. However, that is not the end of the story, because then the parole board has to do its work. The decision about whether the person gets out on parole is made by the parole board in its usual fashion.

I think it is an outstanding process, frankly. The reality is that such offenders are on parole for life. Even if they are ultimately granted parole through this process, they remain on parole for life.

It might be important at some stage to review the functioning of this faint hope clause and the process of judicial review. I think that is far different from the context of a bill that starts from a point that says this process should not continue, that it should be eliminated and repealed. I cannot support that kind of approach.

It is important to look at the statistics in how this process has unfolded. We have statistics from 1987 to 2009. In that period, 991 prisoners were in the category of having committed murder or high treason and were sentenced to life in prison. That is the group of people who are eligible to apply for consideration in this process.

One hundred and seventy-four decisions were made by the court to engage this process. It is a very small number. It is certainly not a majority. In fact, the vast majority of prisoners do not even apply to engage this process, because they realize there is no reason for it to succeed.

In the 174 cases where the judge decided that the process could continue, only 144 of them were ultimately granted reductions. Even then the jury further reduced the number of people who could be considered. Furthermore, the National Parole Board only granted parole in 131 of those cases. One can see that at every stage of this process it is fully engaged and decisions are carefully made.

Of the 131 folks who did get early parole as a result of this process, 83 are on full parole and 18 are on day parole, meaning that they return to an institution at some point during the day. Three were deported. One was temporarily detained. Twenty-six are currently incarcerated. Twelve are deceased. One is on bail.

It is very important to look at those 26 who are still incarcerated and to point out that only four of those incarcerations, as far as I can determine, are the result of reoffences and further criminal activity. None of them is the result of murder. It is very important to realize that none of these people have reoffended in the same way that they did when they were originally convicted. That shows the great success of this program.

Of the four who reoffended, three were related to drug crimes. One was a very serious drug crime. One of the four who reoffended was related to armed robbery, which again is a very serious issue.

This shows the success of this program. It shows that compassion has a place in this process. It shows that we have to honour the rehabilitation process and say that when it is working, there should be positive consequences for that. People who demonstrate they can change their lives while incarcerated in Canada should have this option.

We also want to make sure that this process is fair to the victims of those crimes. As someone who had a close friend who was murdered, I want to make sure that victims are treated fairly and supported through this kind of process. However, I do not believe that means eliminating the possibility of engaging this process. It has served us very well. It has benefited the community, because people who are in prison are a burden to society. If someone can be a contributing and successful member of society, that is an important factor to consider. It is something we should be engaging every time that is possible.

This process has the necessary checks and balances to make it a very successful program. This is very ill-advised legislation and I will make arguments very strenuously against it.

The House resumed consideration of the motion that Bill C-36, An Act to amend the Criminal Code, be read the second time and referred to a committee.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, my thanks to the members of the House for agreeing to that.

I rise today to speak to Bill C-36, which deals with the faint-hope clause. The faint-hope clause is called that for a very good reason. When we read the process that an offender, someone who is incarcerated, must go through in order to apply for the faint-hope clause, it is a very tough process.

I have been looking up the information on the justice department website. Quoting from the website, this is the process that an offender has to go through:

Upon application, the offender must first convince a justice they would have a reasonable prospect of success with a jury that must unanimously decide to reduce the number of years of imprisonment the offender must serve without eligibility for parole. The offender must then convince the jury that they should have the right to make an early application for parole to the NPB. Finally, the offender must convince the NPB that they are unlikely to endanger public safety if released.

If parole is granted, the offender remains under supervision for their entire life unless parole is revoked, in which case the person would be returned to prison. Any breach of the offender’s parole conditions or a conviction for a new offence may also result in the return of that person to prison.

Just to the deal with the facts of what is before us, since 1997, and as of April 2009, there were 991 offenders who were deemed eligible to apply for such a judicial review that I just spoke about. Of those who were eligible, there were 174 court decisions in which 144 became eligible for earlier parole, and of these 144, 131 were granted parole. So I think we can see that the existing provision on the faint-hope clause is a very onerous one and rigorous in the tests that a person must establish in going through various judicial reviews and finally to the National Parole Board.

That is all for good reason, because we are talking about very serious crimes that have been committed. I would certainly echo the comments of my colleague from the Bloc who talked about our justice system overall. We do have a responsibility as parliamentarians to ensure that our justice system is fair and balanced and that rehabilitation is certainly part of that.

I have to state that the NDP has very grave concerns about this bill as it seeks to eliminate the faint-hope clause, because we believe it will seriously undermine the fairness and the balance that we have in our judicial system. In fact, I find it quite ironic that just a few days ago in the press there were documents released from Library and Archives Canada dating back to 1976, secret cabinet documents that showed that the prime minister at the time, Pierre Elliott Trudeau, “objected strongly to the removal of this provision, [the faint-hope clause,] asserting that the proposed legislative package”—a product of various compromises to win public backing and to outflank the tough-on-crime Conservatives—“was already 'neanderthal' enough without adding to its repressive character”.

That is from a cabinet document in 1976. I guess not much has changed in that today here again we face a Conservative government that is all wrapped up in a very tough on crime agenda that is simply about catering to a very narrow base. Certainly within the NDP we take this very seriously. We have a responsibility to represent the whole system. We have a responsibility to speak out for that fairness and balance.

The faint hope clause might not be popular. There are obviously cases that one can draw on to show very grievous situations and very violent situations, but it is there as a faint hope on the basis that there are individuals who, because of time served and the fact that they have been rehabilitated, may be in a position where to release them early and to allow that gradual release back into society is actually something beneficial.

Here I would quote from the John Howard Society of Canada, from its “Presumptive Gradual Release” paper of 2007, which talks about this issue of the balance and what parole and early release is about. It says:

The research literature shows clearly, however, that those who are involved in good gradual release programs re-offend less frequently than those who are not involved in such programs. This is particularly true of higher-risk offenders.

In fact, it goes on to point out:

If well managed, programs of gradual release are the best method known to reduce recidivism. Failure to involve people in these programs places the community at greater risk and in so doing contravenes the purpose of the Act.

On the one hand, we are dealing here with the political optics that are put forward by the Conservative Party. It is just catering to this agenda of bringing in tougher and tougher laws and getting rid of the faint hope, without recognizing the damage that is being done to our judicial system.

We have to ensure that we have a judicial system that is fair and balanced, that also emphasizes rehabilitation. Otherwise, we are then sending people out onto the streets who will still be at great risk of reoffending. I think one thing we would agree on is that what we ultimately strive for is safety in our local communities. So what happens to these offenders is really important and cannot just be dismissed as a political campaign or a political talking point as we have seen over and over again with the bills that have been before us.

I know our caucus, the NDP caucus, has serious reservations about this bill. We believe the faint-hope clause is there for a purpose. It is something that is very hard to achieve but is there for those occasions where it is warranted and where a judicial review and a full process can show that in some circumstances there is good reason to allow limited early parole for a gradual reintegration into society, and that is something that serves the interests of society.

We are also very concerned about the rights of victims. Under the current process, there is a great deal of pressure put on families and victims in terms of the number of times they might have to appear if an application for a judicial review is applied for. So we will be bringing forward amendments to this bill, and our justice critic, the member for Windsor—Tecumseh, will be speaking later this day on some of the issues and concerns we have.

For the purposes of getting some of these amendments, we will allow this bill to go to committee. However, we have serious opposition to this bill in terms of what it stands for and what it would do to our justice system, and I think we should be able to speak honestly about this. Unfortunately, so much of this debate has now been dragged down to its lowest level of political messaging and a political ideological approach from the Conservative government. As New Democrats, we are not prepared to engage in that kind of politicization of our justice system. We are not prepared to undermine the balance that we strive for in our judicial system. So we find it very offensive that this kind of approach is being taken over and over again by the Conservative government.

In fact, it is kind of ironic that, on the one hand, we have a government that has brought in how many bills now? There are more than a dozen of these sort of boutique criminal justice amendment bills.

It is ironic that the Conservatives do that, on the one hand, and huff and puff, jump up and down, and make a big deal about it. Yet when they receive a court order to return someone like Mr. Abdelrazik, a specific court order ordering the government to abide by the law that has been laid down, they refuse to do so.

Even here today, the day before the decision comes to its full fruition, the government is still refusing that. Or we can look at things like the challenge on Insite in the downtown east side, where the government refuses to respect court decisions, or medical marijuana.

I find it incredibly ironic that, on the one hand, the Conservatives rush in with all these amendments, but on the other hand, they themselves think they are somehow above the law and can just ignore court decisions that are made.

In closing I would like to say that this bill, in its present form, is not acceptable to New Democrats. When it goes to committee, our justice critic will be seeking changes that we think will improve the situation for families and for victims. We know that discussion will take place at committee and we think we need to ensure that we maintain the fairness and balance we have in our justice system. We are not about to let the Conservative government begin to unravel that and create serious damage in our society.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, it is my pleasure to take the floor on behalf of the Bloc Québécois on Bill C-36, the serious time for the most serious crime act, the objective of which is to restrict the eligibility of persons found guilty of treason or murder to apply for early parole. First, I will review the history of the faint hope clause, before speaking about the current procedure governing it and the changes proposed by Bill C-36.

Bill C-36 would modify the faint hope system. In 1976 the death penalty was abolished and murders were reclassified as first or second degree murder. Both are punishable by life in prison, but have different parole ineligibility periods. For first degree murder, the murderer must have served at least 25 years of the sentence imposed. For second degree, he must have served at least 10 years of the sentence, except in the following cases: when it involves a murder or deliberate murder under the Crimes Against Humanity and War Crimes Act, the period is automatically 25 years or when, given the nature of the offence, circumstances surrounding the perpetration of the offence or any recommendation of the jury, the judge sets a period of between 10 and 25 years.

The faint hope clause, which is now found in section 745.6 of the Criminal Code, was adopted in 1976 to permit those who had already served at least 15 years of a life sentence to apply for a reduction of the parole ineligibility period. It had three main purposes: to offer some hope for offenders who demonstrated significant capacity for rehabilitation, to motivate good conduct in prison, and to recognize that it was not in the public interest to continue incarcerating certain offenders beyond a 15-year period. These were the principles at the time.

Under the initial procedure, the offender had to submit an application to the chief justice of the province where the murder was committed, asking to reduce the parole ineligibility period imposed at sentencing. Next, the chief justice had to appoint a superior court judge who was assigned to form a jury of 12 citizens to hear the application. If two thirds of the jury members were in agreement, the period could be reduced. Upon the expiry of the new period, the offender could submit a parole application directly to the National Parole Board.

In 1997 there were major changes to the faint hope system. First, the procedure was changed to prevent multiple murderers from applying if one of the murders was committed after the date the bill came into force. Second, these changes required the chief justice to do a preliminary review and examine each case before forming a jury, so as to exclude applications that did not present a real possibility of success. Finally, these changes required a unanimous jury verdict for the period in question to be reduced.

In 1999, the Code was amended again by adding section 745.01, whereby a judge, when imposing sentence, is obliged to make a statement for the benefit of the victims’ family and relatives concerning the existence and nature of the faint hope clause.

There are three stages to the current faint hope procedure: the review by the judge, unanimous approval of the jury, and the application to the National Parole Board.

First, the requester must convince the chief justice, or a designated judge, in the province of the conviction that there is a real possibility that the application will succeed. If the requester fails and the judge does not prohibit the filing of a new application, he may file a new application after two years, unless the judge sets a longer period for doing so. Second, the requester must convince a jury of 12 citizens to decide, unanimously, to reduce the parole ineligibility period.

First of all, it must be determined whether the requester qualifies,and this decision rests with a judge. If the judge concludes there is no chance of the application being accepted, he denies the requester the right. If he allows this right, the offender must submit his application to a jury composed of 12 citizens.

The jury must be unanimous in deciding to authorize parole. If the jury refuses without prohibiting the presentation of a new application, another application may be submitted after two years or after a longer period set by the jury. If the jury accepts, however, it must set a new reduced period.

Third, at the end of the new period set by the jury, the requester may submit an application to the National Parole Board.

Let us look at the success rate for faint hope applications. As of April 9, 2009, of the 265 applications submitted, 140 requesters had obtained a reduction in their parole ineligibility period. The National Parole Board granted parole to 127 applicants, of whom 13 subsequently returned to prison, 3 had been deported, 11 died, one was out on bail, one was in temporary detention, and 98 were meeting their parole conditions.

At the present time, over 4,000 persons are serving life sentences in Canada. As of April 9, 2009, 1,001 prisoners were could apply for early parole eligibility. Of those, 459 had already served at least 15 years of their sentence and so could submit an application, and 542 had yet to reach the 15-year threshold but will be able to apply in the future. On average, it will be possible for 43 of these 1,001 offenders to file an application each year.

Bill C-36 proposes some changes. In short, it proposes two main amendments. First, it proposes to completely abolish, effective the day that the amendment comes into force, the right of all offenders found guilty of first or second degree murder or high treason to apply for early parole. Thus, effective the day that the proposed legislation comes into force, the right of offenders found guilty of first or second degree murder or high treason to apply for early parole would be completely done away with.

Second, the bill proposes tougher rules for such applications for all offenders found guilty of first or second degree murder or high treason before the day that the amendment comes into force, including those who are currently serving a sentence.

This restriction to which I refer would comprise four amendments to the present procedure. First, tougher selection criteria will apply for judicial review. From now on, offenders will have to convince a judge that there is a substantial likelihood that the application will succeed.

Second, the minimum waiting period for re-application if an offender has been refused will be five years. That is, the present two year minimum would be raised to five years.

Third, there is a new five year waiting period before offenders may apply, if they have not done so within the new three month limitation.

Fourth, there is a new three month time limit, that is a window of opportunity of 90 days, during which offenders may apply or re-apply: after the date the amendment comes into effect for the 459 offenders currently eligible to apply; after 15 years for the 542 offenders who will become eligible to apply; after the newly extended five-year period for those who re-apply; and after five years for those who did not apply within the three month window.

What position will the Bloc Québécois take throughout the debate on this bill? Bill C-36 addresses the most serious crimes, such as premeditated murder, that have the biggest impact on victims and affect the population as a whole. These most serious crimes deserve the most serious punishment, so those found guilty can be put in jail for life. Lenient sentences and parole granted too soon—after one-sixth of the sentence has been served, for example—undermine the credibility of the legal system and reinforce the feeling that criminals get better treatment than victims. But the Bloc Québécois also believes that punishment should not be the only goal of the legal system, at the expense of reintegration and rehabilitation.

Parole, even for murderers, is an important part of their reintegration and rehabilitation process because sooner or later, they end up back in society. When they do, it is crucial for them to have benefited from suitable tools to help them return to society in a way that is safe for everyone.

Bill C-36, which focuses on parole, could have complex consequences on the reintegration and rehabilitation of certain criminals.

In an effort to address this issue, the Bloc Québécois will study Bill C-36 in committee even though we have some concerns about it at this point.

There are still some issues we need to discuss. Are the reasons the faint hope clause was created still valid? The faint hope clause, which allows murderers to apply for early parole, gives them a reason to behave well in prison. What would happen if the clause were eliminated? Would it put corrections officers in greater danger at the hands of people who have nothing left to lose?

Will Bill C-36 sound the knell for cases of successful rehabilitation? There are examples such as that of Michel Dunn. He is a lawyer who killed a colleague but benefited from the faint hope clause and became an in-reach worker helping criminals reintegrate into society. Will this now be a thing of the past? We must remember that he was sentenced to life without the possibility of parole for 20 years for murder. He behaved well. He was reintegrated and is now helping prisoners.

The Bloc expects to take advantage of the study to raise these questions and get answers that will help enlighten the debate. It is only then that we will take a final position.

The most serious crimes under the Criminal Code are likely to lead to a life sentence. In the case of some crimes, such as treason and murder, there is no other sentence but life in prison. That is the minimum sentence.

There are a number of categories of homicide—murder, manslaughter and infanticide. Murder is the most serious category of homicide. It is a premeditated act intended to kill or fatally wound or to commit an illegal act in the knowledge that it will cause death.

There are two types of murder—first degree murder and second degree murder. First degree murder is premeditated and wilful. It is planned, in other words.

Other types of murder are automatically categorized as first degree murder in the Criminal Code. This is the case with the murder of a police officer or a prison guard or when murders occur in a plane hijacking, sexual assault or a hostage taking.

With manslaughter, there is no intention to kill, but there is negligence. Firing a shot through a hedge without thinking there might be someone on the other side is an example.

The Criminal Code is clear. Whoever commits first degree murder or second degree murder is guilty of a criminal act and shall be condemned to life in prison.

Only the period of time before an individual may be granted parole may vary according to whether it is first degree or second degree murder.

For manslaughter, the sentence is life in prison, but there is no minimum period of ineligibility for parole. The regular rules apply.

We must come back to what is called the faint hope clause. It is important to the current debate. In my backgrounder, we saw that there have been a number of amendments over the years. Eligibility for parole has been made harder to achieve. The Bloc has no problem with this approach. However, one of the reasons that criminals have access to parole is to reward their behaviour in prison, if you will. It is rather difficult to reward criminals. However, employees and corrections officers working with criminals need some support from the law for their actions.

One way of getting there is to encourage criminals to behave. Parole plays a role in this. We must ensure that criminals who want to be rehabilitated and who work hard, even in prison, to improve their lives have a hope of getting out because, in any event, they will be released some day.

Even if parole is abolished, these criminals will have served their 25 years some day and will re-enter society. We must ensure, therefore, that they are given the support and rehabilitation they need to become good citizens once they re-enter society.

That is the reality we are facing when we analyze Bill C-36 and that is why we must ask all the necessary questions and ensure that all the in-depth studies have been done.

I cited the case of Mr. Dunn, who was a murderer but was reintegrated very successfully. Parole enabled him to become a better citizen and return to society. He became a criminal justice social worker who helps to reintegrate other criminals. His is a fine example. Could a bill like this nullify all the effort and improvements criminals might make in prison? That is what we need to consider.

The tough on crime philosophy is not the Bloc’s philosophy or ideology, and it was not the philosophy our ancestors advocated over the years.

Why do we have a justice system with a judge and the possibility of a jury? It is in order to always find the best punishment for the crime that was committed. That is the result we want. When we try to replace it with minimum sentences and overturn the legal system our ancestors developed to produce the society we have today, we should really ask ourselves some questions.

Often we do things because they are politically easy. These are good decisions but the media are omnipresent. Sometimes they embellish events for their own purposes. It helps them sell newspapers and attract viewers for their newscasts. We must understand, though, that there is a need for balance and the justice system has always ensured this balance. That is what our ancestors wanted.

There are many other justice systems around the world, but they are not the one our ancestors chose. The government is trying to get rid of our system in which there are independent judges and juries made up of citizens who judge their peers. That is the system we have developed. I think we are heading off in the wrong direction every time we are tempted by events in the media to change the entire legal system by imposing minimum sentences and completely abolishing the parole system, without considering its benefits.

I asked an eminent colleague of mine, a criminal lawyer, whether he submitted requests for legislative changes to the government. Does the Bar do that? Sometimes it happens and reforms are made. Usually, though, it is politicians who decide for partisan reasons to bring forward changes to the Criminal Code in order to get some political peace.

Once again, that is dangerous for the democratic system we enjoy. The entire justice system is, in fact, part of our democratic system. The decision to supplant judges by including minimum sentences everywhere in the Criminal Code is motivated by media coverage of certain appalling cases. Often, we need to realize that the case focused on by the media is an extreme case.

The justice system obviously needs to strike a balance. It is for that reason that the symbol of justice is a set of scales. It is all about striking a balance. It is true that mistakes can be made sometimes.

Do we want the innocent to pay for a few mistakes that may have been made? The Bloc will always be completely opposed to that. That is not the type of society that our ancestors bequeathed to us. We are changing the course of history because, somewhere, some politicians decided that being tough on crime pays off. They looked at what is happening in the United States with the Republicans filling up jails to make citizens feel safer. The result is quite the opposite. There are more crimes committed per capita in the United States than in Canada. Quebec, which supports reintegration, has the lowest crime rate in North America. That is the reality.

The Bloc Québécois will act responsibly. With Bill C-36 it will try to adopt a balanced approach in order to have a justice system that lives up to our ancestors' vision.

The House resumed from June 12 consideration of the motion that Bill C-36, An Act to amend the Criminal Code, be read the second time and referred to a committee.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, I understand that my colleague is very interested in the number of murderers who have or have not been paroled and in the number of murderers who have been convicted. It is not a question of numbers. The victims, not the numbers, should be the basis for the bill.

No matter which government presents a bill, the purpose is always to protect society, to protect families and above all to ensure that justice is not just shrugged off and that murderers who are supposed to be in jail are not now out in society.

That is why, whatever the bill, it is not just about numbers, and even if just one person benefits, that is fine. The victims or the victims' families must always benefit. The numbers are not important when it comes to voting for a bill. In voting for a bill we vote for a principle that we have identified and we promise to fix the problem, in this case the problem presented with Bill C-36. I would like to mention that it was in our program. We are pleased to have it in our program and we are fine with that.