Mr. Speaker, it is a pleasure to speak today to Bill C-36, An Act to amend the Criminal Code, which is called by some as the “serious time for the most serious crime act”. The bill was given first reading in the House of Commons on June 5 and was referred to the House of Commons Standing Committee on Justice and Human Rights on June 18.
The bill would amend provisions of the Criminal Code regarding the right of persons convicted of murder or high treason to apply for early parole. This is done through the elimination of the so-called faint hope clause by which those given a life sentence for murder or high treason could apply for parole after having served 15 years of their sentence.
In terms of the current law, section 745.6 of the Criminal Code is known informally as the faint hope clause because it provides offenders serving a sentence for high treason or murder with the possibility of parole after having served 15 years where the sentence has been imprisonment for life without eligibility for parole for more than 15 years.
Offenders convicted of first degree murder receive life imprisonment as a minimum sentence with the earliest eligibility for parole set by law at 25 years. For offenders convicted of second degree murder, a mandatory sentence of life imprisonment is also imposed with the judge setting parole eligibility at a point between 10 and 25 years.
Those serving a life sentence can be released from prison only if granted parole by the National Parole Board. Unlike most inmates who are serving a sentence of fixed length, for example, 10 or 20 years, lifers are not entitled to statutory release. If granted parole, they remain subject for the rest of their lives to the conditions of parole and the supervision of a Correctional Service of Canada parole officer. Parole may be revoked and offenders may be returned to prison at any time if they violate the conditions of parole and commit a new offence.
Not all lifers are granted parole. There has been a lot of debate about this over the years and there is an assumption on the part of many that somehow it is automatic. That in fact is not true at all. Some lifers are never released on parole because the risk of their reoffending is too great. One good example is Clifford Olson who was also mentioned yesterday by some of the speakers.
During the years following its initial introduction in 1976, the faint hope provision underwent a number of amendments. I believe there are five criteria for the possible release on parole of someone serving a life sentence. They are as follows:
First, the inmate must have served at least 15 years of a sentence.
Second, an inmate who has been convicted of more than one murder where at least one of the murders was committed after January 9, 1997, at a time when more amendments came into force, may not apply for a review of his or her parole ineligibility period.
Third, to seek a reduction in the number of years of imprisonment without eligibility for parole, the offender must apply to the chief justice of the province or territory in which his or her conviction took place. The chief justice or a superior court judge designated by the chief justice must first determine whether the applicant has shown there is a reasonable prospect that the application for review will succeed.
This assessment is based on the following criteria: the character of the applicant; the applicant's conduct while serving the sentence; the nature of the offence for which the applicant was convicted; any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and any other matters the judge considers relevant to the circumstances.
At a later point I will give the statistics as to how many people actually qualify for this. Members will find that it is a very small number indeed, which is probably the way it was intended.
If the application is dismissed for lack of reasonable prospect of success, the chief justice or the judge may set a time for another application not earlier than two years after the dismissal or he or she may declare that the inmate will not be entitled to make another application.
If the chief justice or judge determines that the application has a reasonable prospect of success, a judge will be assigned to hear the matter with a jury. In determining whether the period of parole ineligibility should be reduced, the jury should consider the five criteria outlined above. The jury determination to reduce the parole ineligibility period must be unanimous. The victims of the offender's crime may provide information orally or in writing, or in any other manner that the judge considers appropriate.
I merely went through all of those stages in an effort to explain to people who may be viewing today that this is not a slam dunk. The Conservative government tries to pretend that it is and perhaps some media stories might suggest this but there is a very rigorous process followed here before anything is done.
If the application is dismissed, the jury may, by a two-thirds majority, either set a time not earlier than two years after the determination when the inmate may make another application, or it may decide that the inmate may not be entitled to make any further applications. In fact, if the jury determines the number of years of imprisonment without eligibility for parole ought to be reduced, a two-thirds majority of that jury may substitute a lesser number of years of imprisonment without eligibility for parole than the number then applicable. The number of years without eligibility for parole that the jury may assign could range from 15 to 24 years.
Once permission to apply for early parole has been granted, the inmate must apply to the National Parole Board to obtain parole. Whether or when the inmate is released is decided solely by the board based on a risk assessment, with the protection of the public as the foremost consideration. Board members must also be satisfied that the offender will follow specific conditions which may include restriction of movement, participation in treatment programs and prohibitions on associating with certain people, such as victims' children and convicted criminals.
The faint hope clause review then is not a forum for a retrial of the original offence, which is, of course, the way the government speakers want to make it sound and continue to suggest that is the case. I want to repeat that a faint hope clause review is not a forum for a retrial of the original offence, nor is it a parole hearing. A favourable decision by the judge and the jury simply advances the date upon which the offender will be eligible to apply for parole.
In terms of the judicial consideration of the faint hope clause, the Supreme Court of Canada has stated that the purpose of this review is to re-examine a judicial decision in light of changes that have occurred in the applicant's situation since the time of sentencing that might justify lessening the parole ineligibility period.
Section 745.6 of the Criminal Code gives the jury broad discretionary power to consider any matter concerning the offender's situation. The Supreme Court has provided guidelines for the exercise of this discretionary power, namely, that the jury must consider only the applicant's case and must not try the cases of other inmates who may have committed offences after being released on parole. The court has also stated that it is not the jury's role to determine if the existing system of parole is effective.
In terms of the history of the faint hope clause, in July 1976, Parliament voted to abolish capital punishment for Criminal Code offences as opposed to the death penalty for military offences which was not abolished until 1999. The Criminal Code was amended and the categories for murder were changed from capital and non-capital to first and second degree murder.
Mandatory minimum sentences for murderers were introduced. The compromise arrived at between the supporters and opponents of the death penalty was its replacement with long-term imprisonment without parole. The faint hope clause was adopted in 1976 in connection with the abolition of the death penalty.
Speaking in favour of the abolition of the death penalty and the addition of the faint hope clause in the Criminal Code was the solicitor general of the day, who we all remember, Warren Allmand, who said:
I disagree with those who argue that a life sentence with no parole eligibility for 25 years is worse than death. A period of incarceration, with hope of parole, and with the built-in additional incentive for the inmate, and protection for the guards, of a review of that parole eligibility after 15 years is necessarily better than a sentence of death because it removes the possibility of an irreversible error of execution.
I recall the governor of Michigan who was very strong on the death penalty. This was only in the last 10 years. He did an about-face when it was discovered that a huge number of inmates serving sentences in the Michigan jails were falsely convicted. Of course, that was one of the major reasons that the death penalty was overturned back in 1976.
Thus, the faint hope clause was added to the Criminal Code in the hope that it would provide an incentive for long-term offenders to rehabilitate themselves and, therefore, afford more protection to prison guards. The provision is also said to represent Parliament’s awareness of how long other countries imprison persons convicted of murder before allowing them to apply for parole.
I have some very interesting information on that, which I will get to very soon. For example, Australia, Belgium, Denmark, England, New Zealand, Scotland and Switzerland keep persons convicted of murder in prison for, on average, 15 years before they may be paroled.
Concerns were raised about the faint hope clause in the course of the debate over the abolition of capital punishment. One member of Parliament said that, before going any further with parole provisions, a total reform of the Criminal Code to include rehabilitation, help for crime victims and greater rights for police officers would need to be considered. The same member, Mr. Gauthier, said:
--[a]s long as we persist in shutting up our criminals in the schools of crime that our prisons now are... they will come out even more rebellious, and I would even say even more refined in their future actions.
The first judicial review hearing under the faint hope clause was held in 1987. As of April 13, 2009, 991 offenders were deemed eligible to apply for a judicial review. Court decisions were rendered in 174 of those cases and 144 inmates were declared eligible to apply for earlier parole. Of those, 131 were granted parole, representing over 13% of those who had been deemed eligible to apply for a review of their parole date. That is not a huge number by any stretch. However, if we were to listen to the Conservatives, we would think that the streets were teeming with people in this category.
The most recent published Correctional Service of Canada statistics concerning the fate of prisoners released on parole under the faint hope clause for April 2008 show that of the 125 offenders who had been released by that date, 95 were being actively supervised in the community, 15 had been returned to custody, 11 were deceased, 1 was unlawfully at large and 3 had been deported. These statistics also show that of a total of 22,831 offenders under Correctional Service of Canada jurisdiction at the time, 4,429 or 19.4% were serving life sentences and almost all of them for murder.
In terms of the history of imprisonment for murder in Canada, while the Criminal Code has a single definition of murder and one specification of the punishment that applies throughout Canada, the legislation pertaining to sentencing for murder has changed considerably in the course of the past 50 years.
In November 2002, Correctional Service of Canada published a study on the average time offenders sentenced for murder spent in prison. This study took into account three periods defined by the murder-related legislation that was in force. Pre-1961, persons convicted of murder were automatically sentenced to death. Between 1961 and 1976, capital and non-capital murder designations were in effect and, from 1976 to 2002, first and second-degree murder designations were in effect. So, there have been three different regimes that we have experienced over our lifetime as a country.
Before September 1, 1961, any person convicted of murder in Canada was automatically sentenced to death and the sentence carried out unless the Governor General, acting on the advice of cabinet, those of us who are old enough to remember those days remember the drama involved in each and every one of those cases, commuted the sentence to life imprisonment. That is, in fact, what used to happen in the latter years. This was called the royal prerogative of mercy. Historical evidence indicates that the royal prerogative was frequently exercised and operated flexibly.
Between Confederation and 1962, the year of the last execution in Canada, the federal cabinet commuted just under half of all death sentences to life imprisonment. Decisions to execute or spare were made on a case-by-case basis, not according to formal rules of evaluation. The Governor General was not obliged to justify his or her decisions and the deliberations in cabinet were not recorded. In fact, it has been said that clemency decisions were basically a balancing act in which personal prejudices and political expediency often tipped the scales.
Meanwhile, from 1899 to 1959, the Ticket of Leave Act operated on the principle that release was an important part of the rehabilitative process. Under the terms of this act, the Governor General would grant a conditional release to any prisoner serving a term of life imprisonment. Although not applied to death sentences, conditional release later became possible for those sentences commuted to life imprisonment. On February 15, 1959, the proclamation of the Parole Act resulted in the abolition of the Ticket of Leave Act and the new act enshrined the principle of rehabilitation and created the National Parole Board.
That is the beginning of the National Parole Board with which we are all familiar.
Parole was defined as the authority granted to inmates to be at-large during their terms of imprisonment. The legislation set out the new criteria for parole. The Parole Board could release an inmate when he or she had derived the maximum benefit from imprisonment, and when the reform and rehabilitation of the inmate would be aided by parole and when release would not be an undue risk to society.
Under the Parole Act the Parole Board would, at particular times prescribed by the regulations in place, review the case of each inmate serving a sentence of imprisonment of two years or more, whether or not an application had been made or on behalf of the inmate. The inmates sentenced for murder were still eligible for release only under mechanisms such as reduced sentences, pardons and the royal prerogative of mercy.
Amendments made to the Criminal Code in 1961 formally differentiated between death and life sentences. These changes resulted in murder being divided into capital and non-capital murder. With these amendments, capital murder was defined as murder that is planned and deliberate, murder committed in the course of certain crimes of violence by the direct intervention or upon the counselling of the accused, and the murder of a police officer or a prison warden acting in the course of duty resulting in such direct intervention or counselling.
Such murder was still punishable by mandatory hanging except if the accused was under 18 years of age. All other murder referred to as non-capital was punished by life imprisonment. In addition to this amendment, in 1961 an automatic review of all capital convictions by the provincial Court of Appeal was established as well as a full right of appeal in the Supreme Court of Canada. This was a review of fact or law alone since the sentence was mandatory and could be reduced only by cabinet.
As outlined above, in July 1976 Parliament voted to abolish capital punishment for Criminal Code offences. The Criminal Code was amended and the previous categories of capital and non-capital murder were replaced with first and second degree murder. Mandatory minimum sentences for murder were introduced with lengthy periods of parole ineligibility.
I am going to have to move ahead because I am not going to finish all my points, but I am sure members are going to be asking me questions so I can get some of this through.
I did promise I would deal with the issue of other countries. In 1999 an international comparison of the average time served in custody by an offender given a life sentence for first degree murder showed the average time served in Canada of 28.4 years was actually greater than in all countries surveyed including the United States. The countries we looked at were New Zealand, Scotland, Sweden, Belgium, Australia, and Canada had a higher rate than they did.
