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

[The Deputy Speaker, Conservative, Andrew Scheer]

It does not sound like there is unanimous consent, and I am not sure that the member would be able to do it on behalf of another member anyway.

As there is no consent, the Chair will take it under advisement as to whether or not that type of procedure is admissible.

We will move on with debate.

[Dona Cadman, Conservative, Surrey North, BC]

Mr. Speaker, the member seems to be a bit soft on criminals. I am sure that the John Howard Society is against this too, knowing what it stands for, but someone has to start getting tough on these people.

I do not know if my colleague has ever attended a section 745 hearing, but I have, and it puts the victim right back to the beginning. Do these people need to have this done to them again and again? Very few people come up for a section 745 hearing, but when they do, it is devastating, it hurts, and it is just disgusting.

Does the member have any comments on that?

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Speaker, given her first comment in terms of being soft on criminals, obviously the member was not in the House of Commons when I gave my speech earlier this week on the sex offender registry. I was challenging the government to get tougher on its own legislation.

We are dealing with this legislation without any statistics, without any background information, without hearing from experts, without anything suggesting there is currently a problem. In 2008, 109 people were released and there were no offences other than parole violations.

I want to know why we are here now, with a week to go in Parliament, and we are not dealing with serious issues such as EI or medical isotopes.

I would have no difficulty addressing this legislation in the fall or later on. Should we study it? Yes. When we are in an economic crisis, and with a week to go, why are we not dealing with the important issues I just mentioned?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I want to ask the member whether there have been any long-term studies on the impact of such legislation? Would it be more likely for an offender to reoffend or not? Would there be more incidents of violence in jails or less? Is there any academic research showing which country has the faint hope clause? What would the impact be, not just in a five year time frame, but within a 30 year or 50 year time frame? Have there been any good international studies, or even studies within Canada, regarding this matter?

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Speaker, in terms of what is currently available, my chief concern at present is that the government has produced this legislation during this crisis without any expert evidence in terms of a problem. I think it is trying to turn the channel from the economy to criminal justice issues, when frankly they are not urgent.

I have a study on how the views of the public are shaped in terms of the media and political parties. There is a study by Ms. Julie Belinda Erb, which says essentially that there is a misperception by the public in terms of offenders reoffending. They really do not. For rehabilitated people who are released early with conditions, the chances of reoffending are actually very low. There is a whole range of views that are not really tied to statistics in terms of what people believe is happening in society based on what politicians and the media say.

My simple point is that I am not for or against; I am in favour of a study, but let us see what the actual intellectual arguments are rather than rhetoric.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I appreciate the member's comments on this bill. It is a matter that has come up from time to time.

I believe the last time it came up was in the early 1990s, and one of the issues was the public's perception of who criminals are. I recall at the time that a very large proportion of those who committed crimes in fact turned out to be family members and close friends as opposed to those people one might think would be bad from the get-go.

I want to ask the member if there is updated information, or is this the kind of information we should have from experts in committee?

[Andrew Kania, Liberal, Brampton West, ON]

Mr. Speaker, it is an excellent point. That is exactly the sort of information that must be produced in determining whether the law should be changed.

There are current statistics, which I am aware of and that I mentioned, in terms of who is going into prisons. They are people with addiction issues essentially. That is something that should be examined both in prisons, for rehabilitation purposes, but also in Canada.

It is true that the vast majority of murderers commit crimes on family members or someone they are close to. A lot of that is in the heat of passion. There is no excuse for it, and I will not make any no excuse for it. However, I am concerned that an ideology or a previous Reform Party position, call it what one will, is now being brought forward when we should be focusing on isotopes and the economy.

[The Deputy Speaker, Conservative, Andrew Scheer]

The hon. member for Brampton West will have four minutes left for questions and comments the next time this bill is before the House.

It being 1:30 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

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.

[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.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, because this is the first round of debate on this bill, I would like to seek unanimous consent to split my speaking time with the member for Burnaby—Douglas.

[The Deputy Speaker, Conservative, Andrew Scheer]

Does the hon. member have unanimous consent to share her time?

[Some hon. members]

Agreed.

[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.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member will recall that in the last Parliament, I believe during the first session, there were a series of justice bills related to the Criminal Code. Then after prorogation, instead of having a series of bills, many of those were not reinstated at the same point. In fact, they were put into an omnibus type bill after there were complaints that the justice committee had been bogged down and was unable to keep up with the individual bills.

Now we find ourselves back in the same position where we have another series of bills. These clearly could have been included in an omnibus bill to allow the justice committee to have virtually the same witnesses to consider the issues of punishment, with which most of them deal.

Would the member care to opine as to why the government is not serious about dealing with these bills by putting them in a form which is most efficient for the Parliament of Canada?