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.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Ms. Wesley, I'm going to ask you one question concerning Bill C-36. I speak as someone who voted against that bill when it was before the House in 2014.

Is there any way that a complaint, for example, to your organization from the massage parlour identifying Mr. Gallese as a threat to women could have worked? Is there any way, under that legislation, that could have been reported without endangering the circumstances and the vulnerability of Ms. Levesque and the others who worked in that parlour?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I want to thank everyone for joining us this morning.

I would like to remind you that the title of Bill C-36 is the following: An Act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts.

It is the committee's role to ensure that, following the Supreme Court's decision in the Bedford case, Bill C-36 will not eventually be back before the court and that all the work we are currently doing will not have to be redone. Despite everything, the minister feels that this bill will be back before the court, and that is very disappointing for me. This would mean there will be a lot of insecurity, questioning and divisions for years to come.

As a lawyer, I am trying to highlight the clearest possible provisions that best reflect what we are trying to do. My favourite expression is the following:

Put your money where your mouth is.

I would like to raise a few short overhead questions. I would like everyone to answer them fairly quickly.

Do you feel that prostitution cases where women are clients also constitute acts of violence?

I say that to everyone, so maybe it could just go in the order of their testimony.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Holland mentioned that he didn't hear the New Democrats opposing this bill in 2001. In the actual voting on the Anti-terrorism Act in 2001, on Bill C-36, all 10 NDP MPs voted against; all 30 Bloc MPs voted against; the Progressive Conservatives split 11 for and 1 against; the Canadian Alliance was 44 for and 4 against; and the Liberals were 134 for and 2 against. I just want to correct the record so that Canadians know what happened in 2001.

Disposition of Abolition of Early Parole Act

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Mr. Speaker, I would like to participate in the debate on the motion to prevent debate on the content and substance of Bill C-59. I find it rather odd that the Bloc has supported the government's attempt to stifle any attempt at debate on the substance of this bill.

No one in the House can accuse the Liberals of not supporting the idea of eliminating parole eligibility after one-sixth of the sentence is served for economic crimes. Two years ago, my colleague from Bourassa, our candidate in Saint-Bruno—Saint-Hubert and our member for Lac-Saint-Louis participated in a press conference with several of Earl Jones' victims to call on the government to quickly bring forward a bill to eliminate parole eligibility after one-sixth of the sentence is served, especially for criminals who commit major fraud and have multiple victims.

No one can accuse the Liberals of not supporting that idea. I think it is really dishonest of the government to make that kind of accusation when it knows very well what the Liberals' position is. This was pointed out by my colleague from Notre-Dame-de-Grâce—Lachine.

Now I would like to talk about the debate and the fact that the Conservatives and the Bloc members want to limit the scope of the debate. Just seven months ago the members of the Bloc rose in the House to criticize the government for doing the exact same thing it is doing now with Bill C-59. The government moved a motion to block debate.

Last June, the member for Saint-Maurice—Champlain rose in the House to criticize the government for moving a motion to block debate on the Canada-Colombia Free Trade Agreement Implementation Act. The Bloc member for Hochelaga also rose to oppose a government motion to block debate on Bill C-9, the Jobs and Economic Growth Act, by imposing time allocation.

We are opposed to this time allocation motion because we believe that Bill C-59 addresses a very important issue. Furthermore, for two years now, the Liberals have been calling on the government to eliminate parole eligibility after one-sixth of the sentence is served for economic crimes like those committed by Earl Jones, Vincent Lacroix and others.

I think it is a shame that some would have people believe that the Liberals do not want to protect victims. That is simply not true. When the government introduced Bill C-21 on economic crimes and it was referred to committee, the Liberal justice critic proposed an amendment to the bill to eliminate eligibility for parole after one-sixth of the sentence in cases of economic crime. The Conservatives and the Bloc defeated the motion.

Every MP is entitled to his or her opinion on bills that we are called on to debate in the House. It is a fundamental aspect of the democratic process. The operative word here is “debate”, and the collusion between the Conservatives and the Bloc is preventing us from acting as responsible parliamentarians.

We would like to hear from experts. We want to know how this bill will truly address a gap in the law, how it will do justice to victims, how this bill will improve the chances of rehabilitation for those who once lost control of their lives.

Perhaps we should indeed eliminate parole after one-sixth of a sentence for offenders who have committed serious economic crimes and left a number of victims.

However, for non-violent criminal acts that are not fraud, we believe that evidence has shown that parole after one-sixth of a sentence has been very effective and that the rate of recidivism is much lower.

We will never know what the experts might have said since this closure motion eliminates any chance to consult experts. With this government so eager to control everything, it has become somewhat of a tradition to just pass a bill without any idea of the facts that might call it into question.

The Liberals are against this closure motion. It is not justified, and we regret that the Bloc has decided to join the Conservatives to limit the debate on this bill. As far as the substance of the bill is concerned, in the past and still today, no one could accuse the Liberals of not showing their support for eliminating parole after one-sixth of the sentence for economic crimes.

In order to illustrate the government's intellectual dishonesty, I would like to present a chronology of the Conservatives' failures in their so-called fight against crime.

I am referring here to the various bills that have died on the order paper for all sorts of reasons or that have remained in the House or at committee indefinitely.

Here they are. Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, died on the order paper when Parliament was prorogued; Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), died on the order paper before the House had a chance to vote on it; Bill C-26, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime), also died on the order paper. It is certainly not the opposition that forced the government to prorogue Parliament.

Bill C-31, An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act, died on the order paper, and Bill C-36, An Act to amend the Criminal Code, on the faint hope clause, died on the order paper before being brought back this session. One committee meeting was held on Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, before it died on the order paper. Bill C-52, An Act to amend the Criminal Code (sentencing for fraud), which is related to Bill C-59, the bill we are dealing with today, died on the order paper when Parliament was prorogued. Bill C-58, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, died on the order paper. The prorogation of Parliament killed many bills.

Among the bills introduced by the Minister of Public Safety was Bill C-34, the Protecting Victims From Sex Offenders Act, which also died on the order paper. The bill to deter terrorism and to amend the State Immunity Act died on the order paper. Bill C-43, An Act to amend the Corrections and Conditional Release Act and the Criminal Code, died on the order paper. Bill C-47, An Act regulating telecommunications facilities to support investigations, died on the order paper. Bill C-53, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts, died on the order paper. Bill C-60, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America, died on the order paper.

To date, no meetings have been held to discuss Bill C-16, An Act to amend the Criminal Code. Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), was given first reading 51 days after Parliament was prorogued, and the committee still has not met to discuss that bill.

Bill C-21, An Act to amend the Criminal Code (sentencing for fraud), was fast-tracked at committee in just one meeting and still has not reached second reading. Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, was given first reading 64 days after Parliament was prorogued, and the government delayed it for 26 days at report stage because of the debate on the short title.

Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, was given first reading 89 days after Parliament was prorogued, and we are still waiting for the next step. Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders), was given first reading after 94 days, and we are still waiting. First reading of An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act took place 243 days after Parliament was prorogued. Bill C-53, An Act to amend the Criminal Code (mega-trials), was given first reading and nothing more.

Bill C-54, An Act to amend the Criminal Code (sexual offences against children) only made it to first reading. Bill C-5, An Act to amend the International Transfer of Offenders Act was introduced at first reading by the Minister of Public Safety 15 days after prorogation. Two committee meetings were held and nothing has happened since. As for Bill C-23B, An Act to amend the Criminal Records Act and to make consequential amendments to other Acts, we are still waiting. After a few meetings on the subject, the minister was supposed to come back with amendments that he felt were necessary in order to make the bill more comprehensive and definitely more respectful. Bill C-39, An Act to amend the Corrections and Conditional Release Act and to make consequential amendments to other Acts was introduced for first reading 104 days after prorogation and we still have not met in committee to discuss it. Bill C-49, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act was introduced for first reading 232 days after prorogation and there it remains. Bill C-52, An Act regulating telecommunications facilities to support investigations was also introduced for first reading 243 days after prorogation and we are waiting for the next step. The Senate introduced Bill S-7, An Act to deter terrorism and to amend the State Immunity Act for first reading 49 days after prorogation and we are still waiting for the next step. Bill S-10, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts was introduced for first reading in the Senate 60 days after prorogation. Bill S-13, An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America was introduced for first reading 237 days after prorogation.

I am pointing this out to prove that it is not the opposition parties that are slowing the process down. For all sorts of unknown reasons, the government introduces these bill and then goes no further with them.

To conclude, I would like to question the justification for Bill C-59 and the fact that the Conservatives and the Bloc felt this was urgent enough to warrant this closure motion, which is an affront to parliamentary dialogue.

Criminal Code

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

Mr. Speaker, I am very pleased to have this opportunity to participate in the debate on Bill S-6 on the elimination of the faint hope clause.

I want to start where my colleague ended on the importance of having a place in our criminal justice system where redemption and hope are possible, even for those who have committed the most serious crimes that we deal with in our society. The member put it very well and I do not think I could say it better or more clearly than he has. This has to be an important part of our criminal justice system and our corrections system. The bill would go some way in eliminating that possibility from our system.

Bill S-6 is back in the House. The last time I spoke on this issue was back on June 18, 2009, when we debated Bill C-36, essentially the same bill. The bill died when the Prime Minister decided to prorogue the House, once again short-circuiting the government's agenda on criminal justice issues. It was not the House that has slowed down the Conservatives' agenda. They have slowed down their agenda by using prorogation and calling early elections. They have not put forth the effort that it takes to get legislation through this place and this is an excellent example of one of those bills. They like to blame the opposition, but the reality is they have done more harm to the timing of their own agenda than the opposition could ever hope to do.

Bill S-6 is an act to amend the Criminal Code on the right of persons convicted of murder or high treason to be eligible for early parole. One of the good amendments that has come out of the committee process this time around is to eliminate the silly subtitle that the Conservatives chose to give the legislation. I am glad that is gone.

At the outset, this legislation, which eliminates 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 opposed to the basic principle of the legislation that claims we are not well served by this process of judicial review, in fact of citizen review, and that the faint hope clause should not be part of our criminal justice system.

I really believe we have been well served by the legislation and by the process. I believe it has encouraged rehabilitation in our prison system and made our prisons safer for both other prisoners as well as the prison guards and other professionals who work in our correctional service. It gives people the possibility of hope that they might be released early from a life sentence.

It has a very important positive effect within the institutions of the correctional system. It has also allowed for a measure of discretion to review the parole eligibility of people who have been sentenced to life in prison and it has encouraged a strong measure of citizen involvement in making the decisions on that very important process. However, in my opinion this legislation would seek to undo all of those things.

The current legislation and section 745.6 of the Criminal Code, which deals 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 how the Department of Justice describes the current process on its website. It is how it describes the intent of the current legislation.

It is important to review the process involved when the faint hope clause is engaged by someone serving a life sentence in prison. It is a very rigorous one. It is one that involves several stages. It is not easy to accomplish and everyone needs to appreciate the fact that there is rigour involved in this process.

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 presented 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, a jury is impanelled to hear the case. If the judge decides there is no reason to proceed further, the appeal process stops at this point and there is no further follow-up. The judge, the Crown, the applicant all have a key role in this first stage.

The next stage is the jury. When the jury is constituted and impanelled, it then considers a number of issues when it looks at the application from the person in prison. When determining whether there should be a reduction of parole ineligibility, the jury determines 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. The jury looks at a very broad scope at this point.

This is a panel of 12 citizens and the panel considers those factors and makes a 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.

This is a pretty important process involving citizens who are engaged in this decision. That is a crucial thing to notice about this process. It is important to protect that point where citizens can engage in the criminal justice system, where they can engage in the corrections system and help make important decisions that affect the community, that affect other citizens, both victims and people in prison. That is a crucial piece of the existing legislation. It is important to have citizens engaged in making decisions.

There are safeguards all through this process. The fact that the jury has to be unanimous is key among those safeguards in the existing process.

When the jury decides unanimously that the number of years to be served should be reduced, it can then decide 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 that 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 complex process. The process initially involves a senior judge and then a jury of 12 citizens, two of the most important features of our system. Judicial discretion is involved. There is a strong citizen involvement component. The community is absolutely represented in the decision that someone's parole should be reduced.

That is not the end of the story because then the parole board does its job. The decision about whether the person gets out on parole is made by the parole board in the usual fashion. Here is another group of professionals who serve our communities admirably, who are engaged in this decision-making process, who are then engaged in discovering whether the person will succeed in the community and then help that person if he or she is ultimately released into the community.

This is not just a short-term parole. Anyone who gets out as a result of this process is on parole for life. That parole period never ends. It continues until that person dies. We need to remember again how important that is and how that offers protection to our communities as well.

There is a lot to this complex process. It is one that has served us well over many years. It originally came in during the mid-seventies when we essentially stopped using capital punishment. It was reaffirmed after the last capital punishment debate in the House in 1986. I believe it has been serving us essentially in its current form for about 25 years.

What has happened in that 25 years? What is the exact experience of this faint hope clause, of this possibility for early parole for someone who is sentenced to life for murder or treason?

New information came out during the course of the justice committee hearings on this bill from the Commissioner of the Correctional Service Canada, Mr. Don Head. He presented information that was valid as of October 10, 2010. He noted that there were 1,508 offenders with cases applicable to judicial review. That is the number of people in our system who could potentially apply for early release under the faint hope clause.

In the 25 years since the first judicial review hearing in 1987, there have a total of 181 court decision. In that 25 years, 181 people have applied to engage this process. That is not a significant number when we look at the total number who are eligible to do that.

Of those 181 court decisions, 146 resulted in a reduction of the period that must be served before parole eligibility and 35 resulted in a refusal. Already, the system has been weeding out the potential reductions.

Of the 146 offenders who had their parole eligibility moved earlier, 135 have been granted parole. Again, there is a change in the number. Out of the potential 146, we are down to 135.

Of those 135 who were granted parole, 68 have had no issue during their period of supervisions, 35 received a suspension because of some problem during their parole but their parole was not subsequently revoked and 23 had their parole revoked. Apparently a lot of those cases dealt with issues related to chronic offending against the conditions of parole, things like using drugs, alcohol, being late when there were restrictions on their movements, those kinds of things.

Seven of the one hundred and thirty-five who reoffended did it in a non-violent manner and two offended violently. Therefore, nine people reoffended out of the total number of cases that were looked at, seven in a non-violent manner and two offended violently. I believe a number of the seven offences were also related to drugs.

That is a whole other issue that we could talk about. We could talk about how our criminal legislation around drugs serves our communities, how well it has served us and the problems with that, but that is probably for another debate.

Of the two offenders who offended violently, one was found guilty of two counts of assault with a weapon and one count of assault using force and the other offender was found guilty of one count of robbery.

I am not going to make any bones about it. Those are serious crimes and serious issues, but these people were charged and convicted in court and are back in jail.

To put it succinctly, since 1987, there have been thousands of offenders who were eligible for early parole. Only 181 chose to apply. Out of those 181, only 135 received a reduction in their sentence. Less than 15%, in fact, of those eligible have applied.

Some of the talk about the legislation comes about because there is somehow this impression that we treat people who have committed murder in Canada lightly, that somehow we are soft on that crime in Canada and that people do not serve a lot of time in Canadian prisons for the crime of murder. In fact, it turns out that is absolutely the furthest from the truth.

It has been shown that the average time served in prison for first degree murder in Canada is 28.4 years. That is one of the longest average times in any country in the world. In comparison, in the United States, the average time incarcerated is 23 years. In many other countries, it is even shorter than that. Certainly in countries like New Zealand, Scotland, Switzerland and England, the average time spent incarcerated for murder is under 15 years.

The fact is that Canada does treat this crime far more severely than many of the countries to which we would want to be compared and significantly more when we look at the average time people spend in prison. It is not something that we are being soft on. We are taking advantage of the possibility of incarceration. We are ensuring that people spend a significant time in jail.

There may be problems with that. Perhaps that is something we should be looking at as it may not be serving us well. In terms of the whole argument that somehow we are soft on crime and this is an issue that needs to be addressed by this Parliament, it turns out that is baloney because we are in fact much more severe than almost any other country we would choose to compare ourselves to. That is something that is also crucial to know in this process.

We have a process that we have had long experience with and that has been in place for over 25 years, probably even longer than that because it was in place for probably a decade before that. There were some changes made to it in the late 1980s. We have good experience with this. It is a program that has been successful, that has shown real and positive results for both people who have been incarcerated in our system and for the communities from which they come and to which they often return. It has shown that citizens can be engaged in a meaningful way in making determinations about their safety and the safety of their communities and decisions about who has been successfully rehabilitated. Citizens get to apply those standards that they believe are most important in making that kind of determination.

If there is a reason why we should reject this legislation, it is because it very clearly eliminates the possibility of citizen engagement in this very important process. This is something that has evolved over time and is something that we have shown great leadership in, establishing this kind of process that allows citizens to make important decisions about parole eligibility for people who have committed the most serious crimes possible in our society. It speaks well to our society that we both make that possibility available and that we also engage citizens directly in making the ultimate decisions about who gets out early, about who has been successfully rehabilitated. The process engages judges with discretion and engages a very senior level of judiciary in this decision-making process. That is also very important. It is important to give judges that discretion and that they exercise discretion on our behalf. After all, they are experts in this area. That is something that is also very important and a key aspect of this process.

As well, we must remember that the parole system continues to be engaged, that even the small number of people who do successfully complete this process remain on parole for the remainder of their lives and under strict supervision by the people who run our parole system.

I recently met with representatives of the parole system in my community. I was very impressed by the work that they do on our behalf in Burnaby and in New Westminster where the office is located. It is a very important contribution they make to the safety of our community and to the hopes of our society, that people can turn their lives around and be successfully integrated back into the community. It is important that we acknowledge the work that they do. It is very difficult work. They are often under great scrutiny for the decisions that they make. I am not sure that we always appreciate all that goes into an understanding, a determination of parole and that ongoing supervisory role that people engage when they are released from a correctional institution in Canada. I want to salute parole officers and the people in the parole system for the important work that they do.

All in all, this is a very flawed bill. It eliminates the possibility for hope, for redemption, as my colleague from Vancouver Kingsway so clearly pointed out in his speech a few minutes ago. We should be very cautious about eliminating this from our system. When we eliminate the possibility of hope, even from those who have committed the most serious crimes, we do not make our society any safer, nor do we make it any better and the bill takes us down absolutely the wrong course.

Serious Time for the Most Serious Crime Act

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I withdraw that. Because of the recess, we have become a little relaxed on things. I apologize very much for that.

The Prime Minister of Canada killed his own bill. The Prime Minister of Canada took the legs out from underneath the Minister of Justice. However, he survived another day and then waited 48 more days to introduce this bill that is so important.

I will go back to the bill. On its merits, the bill is tough on crime. It sure is. It is late on crime, very late. There is a saying that justice delayed is justice denied. If the minister believes so vehemently in this bill, why did he delay it so much and do injustice to the people of Canada? That is a good question.

Some of my colleagues, particularly on the other side of the House, have tried to describe us on this side as weak on crime. Nothing could be more false. I wish our laws were tougher on a wide range of crimes. I wish the government and the minister would act with more dispatch on the important aspects that threaten Canadians today. Not two crimes out of 1,500 since 1987. There are far more important and urgent issues that involve the security of our public than this issue. Even when the Conservatives profess to think it is an important issue, they delay the heck out of it.

I consider the sentencing principles of denouncing unlawful conduct, deterring offences, and the separation of offenders from society to be very important. They are in the code that we believe in, the Criminal Code section 718. Every law should be seen through the prism of section 718 because it affects the balance of how we treat offenders. It is the Criminal Code. It is to put criminals in programs, including incarceration, that deal with their crimes. First of all there has to be an offender, there has to be a crime, and there has to be a punishment. We are talking about the punishment phase here.

The case that Liberal colleagues want to keep Canadians safe cannot be disputed. We want this country to be tougher on crimes and we believe we have very good ideas on how to get tougher. This does not mean we have to buy into the ridiculous idea that Bill S-6 is going to make Canada tough on crime. Let me be clear. The Liberals are not opposed to the repeal of the faint hope clause in this instance. The questions are why it took so long, why they are targeting something that is so minor in impact, and why they are dilly-dallying on the important criminal laws that need to be enacted.

Repealing the faint hope clause will likely have no drastic effect whatsoever. It affects such a small group of individuals that what negative impact it could have will likely be very limited. So we will not oppose it. However, we have to object to the shameless promotion of the so-called toughness of the bill and the whole Conservative agenda on fighting crime. It goes right to the top, not to the Prime Minister in this case, but to the short title.

The Minister of Justice went on about how inane it is to attack a short title. It is what Canadians believe the bill to be when they look at the short title. Someone looking at the short title of this bill, which was clearly crafted by some republican hack who also writes the tops of cereal boxes, would not have any clue what phase in the criminal justice system this deals with, and could not be guided by the short title.

This bill deals with the faint hope clause. It is to live or die, to eliminate it, to modify it, to let it live another day. That is what the bill is about. People may understand that, but they certainly would not understand the shameless self-promoting title chosen by the Conservatives, which engenders that they want a snappy title, they want to over-promise and under-deliver. Finally, it is their job every night to put the fear of potential harm that does not exist in the hearts and minds of Canadians.

Wow, what leadership that is, to say, “I am your leader and I am going to scare you tonight. Look at the 7 o'clock news”. That is what the government does, and in this crime, the Minister of Justice is an accomplice of the Prime Minister of Canada.

I am ready to support a government, if we could see one that would be tough on crime. However, the only thing tough about these bills is the short title. Getting to that, the short title of the bill is “Serious Time for the Most Serious Crime Act”.

If the Conservatives want to write poetry, if they want to write television titles, they should choose another occupation. However, if they want to stick to the realm of criminal law, they should look at the Criminal Code and pick titles that relate to it.

We Liberals have amended the bill to remove the short title. We amended the short title because it was disingenuous and misleading. Criminals who receive life sentences in Canada do serve serious time. How dare the Conservatives accuse us of delaying this bill for refusing to agree to a short title that tries to create a problem that does not exist.

Perhaps the problem is one of perception and the Progressive Conservatives, of which the Minister of Justice was a proud member and a cabinet member himself, can be part of the explanation as to why we have a perception problem with respect to life sentences for first degree murder, for example. If we asked Canadians what happens when someone is convicted of first degree murder, the answer would be that one gets a life sentence. I bet if we asked if that meant serving life in prison, most Canadians would think so.

We have to remember it was a Liberal government that enacted this law as a compromise for eliminating the death penalty. This very intricate compromise has been upheld by the Supreme Court and commented upon. It seems to be the balance with which we have lived in Canada for a long time. It says that a person who commits first degree murder will receive a life sentence and will be eligible for parole after 25 years served.

In addition, this faint hope clause we speak of recognizes that if after 15 years in prison a first degree murderer has shown elements of rehabilitation, denounces his or her own unlawful conduct, is likely to be deterred for life and fits all of the sentencing principles that we have lived with in society, that person might be eligible for early parole after passing through a whole series of hoops, including the empanelling of a jury, the selection of a chief justice to review the file and finally a parole hearing. That is a lot of hoops to go through. As I have said, of 1,500 who were eligible, I think only 146 actually received the faint hope consideration or early parole.

Let us remember the years when a Conservative government was in power. It did nothing to change these provisions of the Criminal Code because Progressive Conservatives believed that this was an adequate balance. However, today the Alliance Reform Conservatives believe this is an urgent and pressing problem. It is so urgent that they introduced it, let it die by their own hand and took 48 days to reintroduce it. They are really ragging the puck on something that is so urgent.

What is urgent for the Conservatives is to get out before the media and say that there is a real problem with murderers running around the streets of our home towns and they are going to make sure they never get out of prison. It is disingenuous because, in this chamber at least, everybody knows that a life sentence means 25 years with eligibility for parole. Everyone knows that in Canada the average sentence served is about 28 years for a first degree murder. Everybody should know that is just behind the United States where first degree murder has a combination of the death penalty and 29-odd years.

Everyone should also know that there are developed, civilized, important countries of the world that have average time served for first degree murder at a much lower number of years: 10, 11, 12 and 13 years for countries like Britain, Belgium, Australia and the Antipodes.

We are not lax on crime. If I were to take credit for this legislation as a Liberal from the 1970s, one could not say that being just a hair under the United States for time served is lax on crime. It can be said on a newscast and said in here, but out in the public there ought to be a little more truth and sincerity when addressing important issues such as crime and justice. That has been lacking in the whole debate on crime since I came here in 2006.

At committee we have had expert witnesses tell us that not only is there no evidence to suggest that the elimination of the faint hope clause will make our communities safer, but Canada is a world leader, as I just mentioned, in incarceration times. It means then we are tough on crime already in this respect.

I have underscored before that hope is already faint. Correctional Service Canada shows that the average time spent is actually 28.4 years, 10 years longer than in many other countries. Hope is already faint for criminals here. Time in custody is already serious for criminals.

I had occasion, after we rose in December, to visit Dorchester Penitentiary and to see the conditions under which criminals were kept. I heard from wardens and officials at one of our oldest units in the country. The said that they lived a bit in fiscal and security fear of what the Conservative government had in mind by overpopulating a prison that was as old, almost, as Confederation itself.

Time in custody is already serious. If it is the government's will to make hope even fainter for criminals, we cannot say that two individuals is a track record of a failure in this regard. What we have to say is that this overall section affects so few criminals and people in our country that it is not really the object we want to talk about today. We want to talk about what the government has done in other serious areas of the law in law reform.

As I have already mentioned, this bill will have a very limited effect on very few criminals. The faint hope clause has been in effect for 30 years and has made it possible for 130 people to be paroled.

The Conservatives are trying to make us believe that the bill tackles a serious problem. Is that how they protect Canadians and show respect for victims? Criminals are not fools, and neither are victims. Bills such as this will not reduce the crime rate. What this bill really does is make a minor change to how a small number of inmates are paroled.

The Liberal Party will vote in favour of this bill as quickly as possible because it is waiting impatiently for this government to bring forward a bill that is truly tough on crime.

We want to move on with the bill so the government can have the time and space to put forward a bill that is truly tough on crime. At the justice committee five different witnesses have said the same thing, that the bill is not tough on crime. As John Howard Society told us in its committee submission:

Eliminating the faint hope clause, which in practice only allows the earlier application for parole of a handful of already assessed, low-risk, rehabilitated applicants who have already served at minimum 15 years...is unnecessary...and will not improve community safety.

One would have thought in the ensuing years since Bill C-36 was introduced that there might have been new evidence. Alas, there was not.

The aspect of keeping people safe is far different than making them feel that they are safe. The government does a deep disservice to the latter by fearmongering and causing Canadians to feel that the system is not working. It is almost tantamount to treason to say that our criminal justice system does not work.

When first elected, Conservatives and the Prime Minister of Canada were not reluctant to say that Liberal-appointed judges were weak on crime. He also said, in his drive-by schmear, that the Liberal-appointed Senate was useless.

With the passage of time, Conservatives have now had their hands on the rudder for over five years and have appointed a lot of judges to the Supreme Court and the courts of appeal. I do not hear in the Prime Minister's speeches that it is now the fault of judges or that it is no longer the Senate's fault. Talk about victims. He is blaming a narrow number of victims for the perception that the battle on crime is not working because Conservatives have done precious little to actually attack crime. All they have done is make people feel that there is more crime.

This is the conundrum we have. If we speak against a law and order bill, we look like we are pro victim. If the government speaks against the judiciary, it looks like it is undermining the system. What it all means, unfortunately, is that Canadians cannot get a true picture of what is going on with respect to criminality in our country.

I would lay down the sword, along with the Minister of Justice and others, and say that some of us are lawyers and officers of the court. Law societies would be looking at me if I denied it, but that is extremely important. However, we have a higher duty than that. We have a duty to the Canadian public to be truthful and earnest and say, yes, that there are growing areas of crime that we need to attack surgically by implementations that we have spoken about at an all party committee in an in camera meeting. We have talked to judges in camera and know that these tools would be useful in fighting that criminality.

It is not helpful to go on the six o'clock news and say that it is a mess out there, that it is riotous, that judges and prosecutors do not care, that the opposition will not pass government bills, that people should head for the hills, lock their doors and turn out the lights or that they should get a shotgun because they do not have to register them anymore. The point is it is a disservice that all in Parliament is doing to the perception of public safety.

Let us talk about the Liberal agenda. Since prorogation, we have seen a series of bills on criminal law that simply fail to meet the expectation of being tough on crime. We have a different idea about being tough on crime. We want our country to be tough on crime we want to protect and respect victims. We will achieve that end with solutions that are based on evidence and on fact, not on being gluttons for glamour, TV, publicity and fearmongering that those on the other side are. The science of criminology has produced a multitude of sophisticated evidence based on research and fact and we are told how effectively tough on crime certain bills are.

In summary, it seems that the only part of justice the government gets is the word “just”. We want to protect the victims in the funding of witness protection programs and counselling not by just funding the advertising of victims' abuse programs. We want to fund crime prevention so we can avoid crimes altogether not just try to scare people with harsher punishment that we know to be ineffective. We want to equip police officers not just throw even longer sentences at criminals.

I will conclude with a real-life situation. People should talk to corrections officers at a place like Dorchester and ask them if they are not a little afraid about public safety with the onslaught of prisoners who are coming in without the adequate resources and training within the institutions. What are those inmates going to do when they get out of overcrowded prisons with no treatment? That will be cause for fear some day and it has to be corrected.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I would not want the remarks of the minister to be stale in the chamber before I inform him and the House that in the history of judicial review under this clause involving over 1,500 eligible offenders, 181 reached the stage of court decisions, 146 were granted parole before their 25 year eligibility, and out of 146, two offended. I am afraid that the minister is not aware of that otherwise he would not go into the hyperbole that my friend speaks of.

The minister wants to put in the minds of Canadians an enormous problem that has to be dealt with urgently by legislation but he does not want to tell the public that when his government was elected in October 2008 it killed its own Bill C-36, which was similar to this bill almost in its entirety. The Conservatives killed their own bill in December 2009 of their own volition. That minister must have stood behind his Prime Minister and said that is fine even though a lot of people in his riding of Niagara Falls want the bill. I did not read about any dissent. I never read about any dissent on that side. It is not like there is a lot of independent dissenting thinking going on over there.

So the Conservatives killed their own bill in December 2009 and then after prorogation took 48 days to introduce this bill, essentially the same bill. It is not like those members are in a hurry with respect to the faint hope clause. It is not like the minister can go to his constituents in Niagara Falls and claim he is blameless, that he thought Mr. Harper should not have prorogued Parliament, that he thought this bill should--

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Madam Speaker, I want to ask the Minister of Justice a couple of questions, because it seems to me that we have very faint hope of actually getting straight answers from the minister on simple questions like this: why was this bill delayed?

He talked about Bill C-36 in the previous Parliament. Where was it in December 2009? It was well on its way to going through committee, and his government, his Prime Minister, cut the legs out from under him by proroguing Parliament.

It started at the bottom of the pile as the current bill in April 2010. Four months take place; it is the government's fault. Prorogation occurs; it is the government's fault.

The bill makes its way through the Senate and makes its way to the House only in September 2010. Why the delay? Why is the Prime Minister cutting the feet out from underneath the minister?

Second, on this bill itself, I want him to tell me precisely how many of the 146 persons who were given parole earlier than they were eligible for under this section of the Criminal Code have reoffended in the history of this offence? Is it one? Is it 20? Is it 40? How many is it? He should know the answer.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Speaker, I am pleased to have the opportunity to participate in this debate on the government's Bill S-6 at report stage.

The government, through its Minister of Justice and Attorney General of Canada, was all over the media yesterday denouncing the three opposition parties and claiming that the opposition was delaying government bills in general, and Bill S-6 in particular.

I would like to put certain facts before the House. Bill S-6 in the previous session of the 40th Parliament was Bill C-36. The government tabled it in the House. The bill went through the three stages in the House, was adopted and sent over to the Senate. The government, in its wisdom, did not move second reading in the Senate. Instead, the Prime Minister decided to prorogue the House in December 2009. The House was prorogued for close to two and a half months.

When the second session of the 40th Parliament began on March 3, there was a throne speech. Did the government at its first opportunity reintroduce Bill C-36? No, it did not. It waited 48 days after the throne speech before tabling its legislation again. Then after tabling it 48 days after the throne speech, it let the bill sit, collecting dust, for 99 days before it moved second reading debate. If anyone has held up this bill it is not the opposition, definitely not the official opposition, but the government itself.

The government counts on the fact that most Canadians are not paying enough attention to what is actually happening in the House and what the procedures are to realize that it is their own government that is holding up its own justice legislation.

One could speculate on the reasons the Conservative government has for doing do that. I speculate, given that every end of session in December and June for close to the last five years, the minister of justice, whoever he or she has been under the Conservative government, has gone to the media to claim that the opposition is holding up the government's justice bills and if the opposition would be conciliatory and work with the government, the justice bills would get through.

When we look at each of the bills the government identifies at each one of those periods, June and December of 2006, 2007, 2008, 2009 and now 2010, those are the very bills that the government itself has held up, either by letting them sit at first reading and not moving second reading debate, or by not even introducing them initially.

With those facts on the record, I would like now to speak to the content of Bill S-6.

We know that victims and their families want the faint hope clause to be abolished. No one wants those found guilty of serious crimes to get out of jail without serving a long enough sentence. It is for that reason that when we, the Liberals, were in government, we placed restrictions on the faint hope clause so that anyone found guilty of multiple murders would not be eligible. Contrary to the claims of the Conservative government, the amendments it is proposing to make to the law will not apply to dangerous criminals such as Clifford Olson. Russell Williams also will not be able to avail himself of the faint hope clause to obtain a judicial review because of the changes made by the previous Liberal government.

The faint hope clause, also known as judicial review, gives inmates who are serving a life sentence the opportunity to request a judicial review after 15 years of incarceration in order to determine whether or not they may apply for parole. Parole is not automatically granted. The application must first be heard by a jury selected from members of the community where the crime took place. If the 12 jurors unanimously agree, the inmate may apply to the National Parole Board. If the inmate proceeds, the National Parole Board determines whether the inmate, once released, may pose a risk to society or if release will contribute to his or her rehabilitation.

The Liberals believe that a balance must be struck between punishment and rehabilitation in our correctional system. We would like the government to invest more in crime prevention and programs for the victims of crime. Although the faint hope clause helps make our prisons safer and contributes to the rehabilitation of offenders, we believe that access to it must be limited.

The government is not taking into consideration the facts around the faint hope clause. Despite this clause, someone convicted of premeditated murder in Canada serves 28 years in prison on average. That is longer than in any other country that imposes life sentences with possibility of parole, including the United States. Prison guards feel that the faint hope clause helps keep them safe. The Correctional Investigator of Canada believes that the current faint hope clause serves the purpose for which it was conceived.

The Liberals proposed amendments to the Conservative bill in response to calls from various victims' groups. These groups told us that they live in a constant state of anxiety because of the faint hope clause, so we amended the bill to require that the Commissioner of the Correctional Service of Canada notify victims when an inmate applies for judicial review of his case. The commissioner already notifies victims' families when an inmate applies for judicial review. But under the current law, the commissioner is not required to notify victims' families when an inmate does not apply. Under the bill, once the inmate's opportunity to apply has passed, he must wait five years before reapplying.

The Liberal amendment moved and passed with the support of the Bloc and the NDP was as follows.

When an inmate does not exercise his right to apply for a judicial review under the faint hope clause, the commissioner should notify the families and indicate the next date on which the inmate will be eligible to apply. Unfortunately, the Conservatives on the Standing Committee on Justice and Human Rights voted against this amendment. I am puzzled by that.

We also proposed a second amendment that would extend the 90-day period for applying for a judicial review to a maximum of 180 days when the judge feels that extraordinary circumstances beyond the inmate's control prevented him from applying within the 90-day period.

I will stop here, because I see that my time is up. I invite hon. members to ask me questions.

[Gilles Trudeau, Director, Office of Criminal Affairs and Matters, Barreau du Québec]

Good after noon, Mr. Chair, and members. I would first like to explain certain rules for how the Barreau du Québec operates and how it adopts its policies or positions.

With me today are Nicole Dufour and our articling student, François. I will be speaking on behalf of the Barreau du Québec.

The position I will be presenting today is the result of consultations held by a standing committee on criminal law at the Barreau du Québec. The members of that committee are professors, federal and provincial prosecutors and defence counsel. The Barreau du Québec does not take any position unless its criminal law committee has reached a consensus. So the comments I will be making represent the consensus in Quebec among professors, Crown prosecutors and defence counsel, and in our opinion this lends considerable weight to the Barreau's contribution.

We had the impression that the documentation provided to the Senate would be transferred to you; we have learned that this was not the case, so we will send the clerk of your committee the written position of the Bâtonnier du Québec.

Obviously, this is a reintroduced bill. The Barreau du Québec had taken a position when Bill C-36 was introduced, which is now called S-6. Given the extent of the amendments, we want to provide you with our comments.

The purpose of Bill S-6 is to amend the rules set out in sections 745.6 et seq. of the Criminal Code. If the proposed amendments are adopted, the bill that we knew as the "faint hope" clause will be eliminated for murders committed after this law comes into force and for individuals who are serving sentences. I will summarize it as follows: Parliament is deliberately complicating the application and eliminating judicial discretion, and is also using procedural subterfuges to introduce a mandatory 90-day deadline for making an application.

We would remind you of what Parliament's intention was when it enacted section 745.6. That provision followed on the abolition of the death penalty in 1976. For a person convicted of first degree murder, the sentence was then to be imprisonment for life with no possibility of parole before 25 years had been served. At the time, that parole eligibility period was described as a necessary compromise for abolishing the death penalty. The faint hope clause was then adopted to give the convicted person a glimmer of hope, to leave some incentive when such a severe punishment is imposed for the most serious crimes. It allows a convicted person to be granted parole before serving 25 years of their life sentence, if they show that they are capable of reintegrating into society and if they demonstrate good conduct in prison; I will add, exemplary conduct.

Given the possibility of the remission of what may be as much as 10 years of their sentence, an inmate has an incentive to mend their ways and adopt a course of conduct that will make their application for a reduction of the parole eligibility period more likely to succeed. The inmate is then better able to cope with the despair caused by sentencing someone to life imprisonment, because of the realistic possibility available to them of reintegrating into society before their life is over.

Considering that the objective of section 745.6 is to give a person convicted of murder a faint hope, to encourage them to change for the better, the Barreau du Québec wonders what motivates the government to deny the value of that objective. The Barreau du Québec has stated its views in the past on a bill with the same objectives, Bill C-45, which was introduced in 1994, at which time it stated that it opposed the proposed amendments to that section.

In the Barreau's opinion, the process set out in section 745.6 was working perfectly and did not need any legislative amendment. We believe it is still of the same opinion and the figures disclosed by Don Head prove very clearly that the system is working for people who are incarcerated for a serious crime. It is working, since out of the 4,000 and more people who have been imprisoned for sentences, ultimately only the most deserving have been able to pass the review, the review by a judge, first, and then by a jury. The jury is important here; it is the jury of the community where the offence took place, and it is they who are given the task of making the finding of guilt. They have the power, on behalf of the community, to allow the individual to apply to Ms. Pelletier so that hearings will be held in order that they might eventually be released.

The bill shifts the preliminary burden that the judge will have to consider and introduces the concept of substantial likelihood, when the burden is lower at present. That seems to us to be a way of further complicating the way this process is initiated, for a person who, notwithstanding the complete good faith of the Correctional Service, is an inmate who will have to make applications to obtain their files and deal with the delays and difficulty involved in obtaining complete documentation.

On that point, I know that the committee has heard the very eloquent testimony of Kim Pate, who told you about the maze she has had to navigate to help some women make their applications.

In Vaillancourt v. Solicitor General of Canada, the Supreme Court of Ontario held that the present review process struck a fair balance between the need to show clemency to a convicted person whose conduct while serving their sentence is good, which may contribute to their reintegration into society, and the interests of the community, which demands that the act that led to incarceration of the offender be denounced.

On that point, we want to draw your attention to the statistics. The Bâtonnier provided 2009 statistics; we have had the benefit of having up to date statistics. I also think those statistics speak volumes.

The Barreau is also concerned that the effect of the bill, if it is passed, will be to fetter judicial discretion. The Criminal Code provides only general guidelines that apply to the application, and under the provision of the Code the jury must make a decision based on the character of the applicant, their conduct while serving their sentence, the nature of the offence, and any other matters they consider relevant in the circumstances. That discretion is assigned to the jury. As well, when it refuses an application, the minimum time before making a new application would now be five years; currently, it is two years. This also fetters judicial discretion. The judge is the person in the best position to determine when a new application may be made. It would therefore be preferable to give the judge discretion to make five years the time for a new application, while making two years the minimum, rather than setting a mandatory minimum time of five years.

The Barreau du Québec is also concerned about the introduction of a mandatory 90-day deadline, when in many situations the person will have to apply for judicial review to the chief justice of the province in which the crime took place, which is often different from where they are incarcerated. So this is not a simple matter. It is so complicated, in fact, that there has been an agreement between the federal government and the provinces to ensure that legal aid schemes agree to pay a lawyer in each province. The file has to be transferred, and in some cases the records and documents have to be translated. While this is clear to us lawyers, it may be less clear for people who are not lawyers, in spite of the complete good faith on the part of the Correctional Service and the accused. In Quebec, we have a form about four pages long to be filled out to be able to make an application, which is examined by the Superior Court judge.

On behalf of the Barreau du Québec, I think that if the government's intention is to amend an Act to make sentences of imprisonment harsher, that is certainly not an intention supported by a criminological study of victims. We do not see how this bill could help victims; quite the contrary. We believe that in the Criminal Code as it now stands, all of the information needed for making victims feel safe and explaining the judicial process to them is there, specifically section 745.01, which requires that the judge read the sentence and, in passing sentence, tell the entire community that although the individual has been sentenced to imprisonment for life, they may, in certain cases and after a certain time, apply to a jury for the opportunity to apply for early parole.

Thank you.

[Don Head, Commissioner, Correctional Service of Canada]

Thank you, Mr. Chair. I'll actually try to keep my comments under the 10 minutes.

Good afternoon, Mr. Chair and committee members. Thank you for providing me the opportunity to come before you today to discuss Bill S-6, which will eliminate the faint hope clause.

As you may recall, I appeared before you one year ago to discuss Bill C-36, which sought to achieve the same objective, and that is to eliminate early judicial review for those convicted of the most serious offences. Today I will cover two key areas in my introductory remarks, and of course I will then be happy to answer any questions you may have for me.

First I'd like to provide you with some key statistics related to our population of offenders serving life sentences who would be affected by this proposed legislation. Then I would like to provide you with a quick overview of Correctional Service of Canada's processes for supporting the courts when an offender decides to seek judicial review.

With respect to numbers, as of October 10, 2010, there were 1,508 offenders with cases applicable for judicial review. That is, they were eligible to apply to have their parole eligibility date modified. Historically, since the first judicial review hearing in 1987, there have been a total of 181 court decisions. Of these cases, 146 of the court decisions resulted in a reduction of the period that must be served before parole eligibility, and 35 resulted in a refusal.

Of the 146 offenders who have had their parole eligibility dates moved earlier, 144 have now reached their revised day parole eligibility date and 135 have been granted parole. Of these 135 offenders, 68, or about half, had no issue during supervision; 35 received a suspension but were not subsequently revoked; and 23 had their parole revoked. Seven of the 135 reoffended in a non-violent manner and two reoffended violently. Of the two offenders who reoffended violently, one was found guilty of two counts of assault with a weapon and one count of assault use of force, and the other offender was found guilty of one count of robbery.

While we're on the topic of numbers, I should also note that the proposed changes to the International Transfer of Offenders Act would have a minor effect with respect to judicial review. Of the more than 1,500 offenders who have been transferred back to Canada since the legislation came into force in 1978, only 28 were individuals serving life sentences. Of these, only nine are serving sentences for first-degree murder. Of the 300 active cases that we are currently reviewing for potential transfer back to Canada, only seven offenders would potentially have first-degree murder sentences. And I say “potentially” because international legal parallels are complicated, and each case has to be reviewed by legal experts to ascertain the appropriate equivalent sentence in Canada. All this being said, we would expect a negligible impact in Canada, as other jurisdictions as a general rule are extremely reticent to allow international transfers for what we could consider first-degree murder.

With respect to how Correctional Service Canada supports the judicial review process, this is governed by “Commissioner's Directive 710-5: Judicial Review”. Twelve months before the offender's judicial review eligibility date, an institutional parole officer, or primary worker in the case of women offenders, would meet with the offender to determine whether he or she intends to submit an application. In addition, our staff would advise the offender at that time of their responsibility to engage legal counsel.

Our staff also works with the offender to facilitate a transfer to the jurisdiction where the hearing will be held if the offender requests the move. Alternatively, participation at judicial review can also be accomplished through escorted temporary absences. In addition, staff would advise him or her to request access to their file through access to information, so this can be shared with their legal counsel. Furthermore, the parole officer or primary worker ensures that a psychiatric and/or psychological assessment is completed in the 12 months leading up to the application, as well as a judicial review report.

The judicial review report follows the form we use for determining parole eligibility. It covers six areas: the offender's social, family, and criminal background; his or her sentence administration dates; summary of transfers and any disciplinary actions; summary of the offender's performance and conduct; any assessments done by psychiatrists, psychologists, or elders; and, finally, the offender's personal development.

As you can see, CSC provides an invaluable contribution to the process that determines whether an offender is a suitable candidate for parole, whether that be through judicial review, as is the subject of this proposed legislation, or normal avenues for release.

As always, public safety is our paramount consideration. The offenders in our care all come from communities across this country and most will return there. It is the job of the Correctional Service of Canada to manage their sentence from the day they enter our facility, through their incarceration, and out into the community. We do so with a constant eye to achieving good correctional results for Canada and Canadians.

Mr. Chair, committee members, I thank you for your time, and I look forward to answering any questions you may have.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chair. I am pleased to have the opportunity once again to meet with the members of the committee to discuss legislation providing for serious time for the most serious crime.

I appeared before this committee just over a year ago to discuss these amendments. At that time they originated in the bill known as Bill C-36, but since then this Criminal Code package was re-introduced in virtually identical form in the other place as Bill S-6 in June 2010. It was passed by the Senate without amendment and is now before you for examination.

Let me begin by recapping the current state of the law with respect to murder. Section 745 of the Criminal Code provides that convictions of first- and second-degree murder carry mandatory terms of life imprisonment, with mandatory periods of parole ineligibility. For first-degree murder that period is 25 years. It's also 25 years for anyone convicted of second-degree murder who was previously convicted of either first- or second-degree murder under domestic law or an intentional killing under the Crimes Against Humanity and War Crimes Act. For all other second-degree murders, an offender must serve a minimum of ten years in custody. However, a judge may increase this to a maximum of 25 years, in light of the offender's character, nature, or circumstances of the crime, and any jury recommendation.

The parole ineligibility period set by the judge is part of a sentence that is read out in open court. Given the serious nature of murder, I think Canadians would agree that a period of up to 25 years of custody prior to being able to apply for parole is reasonable. I would assert that the 25-year parole ineligibility could and should be longer, especially in the cases of multiple murderers. As you know, that is another issue that our government has addressed through Bill C-48, a piece of legislation you will be asked to consider very shortly.

The core of the issue before us today is the so-called faint hope clause and its related provisions. It allows a murderer to apply for early parole after serving only 15 years, despite what the Criminal Code stipulates in section 745 and despite whatever longer period of time a judge may have imposed. We find this unacceptable. We were elected on a promise to restrict the availability of faint hope for offenders who are already incarcerated and to eliminate it completely for future offenders. Bill S-6, the bill before you, keeps both of those promises.

I would like to concentrate for a moment on the context in which these proposed criminal amendments have arisen. I believe it's necessary to clarify exactly how and why this bill was drafted and what it sets out to achieve. Since the first applications began to come forward in the late 1980s, the faint hope regime has been a source of concern among Canadians. They are disturbed and confused by a process that seems to allow murderers to circumvent the sentence imposed on them in open court after a fair and public trial. They see it as an affront to truth in sentencing, and they argue that a life sentence of imprisonment ought to mean just that.

Many refer to the faint hope regime as the loophole for lifers that can undermine the protection of society, because the system affords leniency to murderers, whose crimes demand severe punishment. Even worse, and perhaps most importantly, victims have told me about the additional trauma inflicted on their families and loved ones. They live in constant dread that the killer who robbed them of their loved one may one day bring forward a faint hope application. This review process forces victims to relive the details of the horrible crimes they have suffered again and again.

We want to spare these victims the anguish of parole eligibility hearings. We believe the justice system must not put those rights of individuals ahead of those of victims and law-abiding Canadians. The measures proposed in Bill S-6 are in direct response to these concerns and aim to accomplish three goals.

First is to restore the truth in sentencing by ensuring the sentence pronounced on a convicted murderer in open court is the sentence that is served. Second is to keep those convicted of the most serious crimes in prison for lengthier periods of time commensurate with the gravity of their crimes. Third is to help ensure that the families and loved ones of murder victims are not themselves revictimized at the whim of a convicted murderer who decides to bring forward an application for early parole that forces them to relive the pain of their original loss.

These are reasonable and compassionate goals, and I hope committee members would keep them in mind as they examine Bill S-6, because Bill S-6 will bar everyone who commits murder in the future from applying for faint hope. Thus, all those who committed these offences after Bill S-6 comes into force will no longer be able to apply for a parole eligibility date earlier than that imposed by the judge at the time of sentencing.

As for those who presently have the right to apply for faint hope, Bill S-6 will tighten up the application procedure to screen out applications that are unlikely to succeed and to restrict when and how often an offender may apply. This tighter procedure will apply to those who commit offences prior to the coming into force date. This means that those who are currently serving a life sentence in prison, those who have been convicted of murder but have not yet been sentenced, and those charged with a murder that occurred prior to the coming into force date and who are convicted--all will be subject to this new, stricter procedure.

I would like to briefly describe how two of the three stages of the current procedure would change. At the first stage of the current process, an applicant must convince a judge in the province where the conviction occurred that there is “a reasonable prospect that the application will succeed”. The court describes this threshold as being “relatively low”.

Under Bill S-6, an applicant would have to prove that the application has a substantial likelihood of success. This significantly higher standard will screen out flawed applications at the outset. It would also impose new time limits. Currently, the minimum period an applicant has to wait to reapply to a judge is two years after the initial rejection. Under this bill, an applicant would have to wait at least five years. The change from two to five years will create more certainty for the families of victims about when a faint hope hearing will occur and limit the number of applications that can be made, thereby reducing the trauma these hearings inflict upon victims.

Presently, an offender can apply for faint hope at any point after serving 15 years. Bill S-6 would change this by establishing a 90-day application window. In short, the applicants will have to apply within three months of becoming eligible, failing which they must wait a further five years, and then they will have again three months to apply. This proposed change will spare victims' families and loved ones from living in dread, uncertain of when or if a convicted killer will revive their suffering by seeking early parole.

Someone who succeeds at the second stage of the application may then go directly to the parole board for early parole. Bill S-6 doesn't change that. Colleagues, let me be clear: Bill S-6 does not affect the normal parole application process. There is nothing in this bill that in any way denies convicted murderers the chance to rehabilitate themselves or to apply for parole in the normal course once the parole ineligibility period imposed at the time of sentencing has expired. The bill simply requires offenders to serve their full sentence for the reasons I have outlined.

As I've said many times before, this government is committed to restoring balance in Canada's criminal justice system by standing up for the interests of law-abiding citizens and ensuring that the families and loved ones and victims are not themselves made victims by the justice system.

Mr. Chair, this is a fair, balanced, and reasonable reform of a controversial area of the law, and I urge all members of this committee to support this bill and hasten its passage into law. Thank you very much.

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

Mr. Speaker, I am very pleased to follow the member for Vancouver Kingsway, who has made an excellent presentation on this bill, as well as the NDP critic, the member for Windsor—Tecumseh, who spoke to the bill earlier today.

As I pulled out my file on what is now Bill S-6, I noticed that it was labelled as Bill C-36 from last year. I have only been here not quite two years yet and already I am finding my files are rather heavy and there are multiple numbers for essentially the same bill. Perhaps this will be the last iteration of this bill. Let us hope that the government does not see its way to proroguing the House again or finding another way that would cause us to have to start this all over again.

This particular bill, now Bill S-6, is an act to amend the Criminal Code and another act. It was given first reading in the Senate on April 20 of this year. The bill would amend the 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 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.

A similar predecessor bill, Bill C-36, as I mentioned before, was introduced during the second session of the 40th Parliament but did not become law because of the abrupt ending of the session on December 30 when the Prime Minister prorogued the House.

In terms of the history of section 745.6 of the Criminal Code, it 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. We will see later that there are a number of comparable countries to Canada with similar systems that have a much lower number of years for murderers to serve.

In our case, it is 15 years, where the sentence is imprisonment for life without the eligibility of 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 a fixed length, for example, 2 years, 10 years 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 the parole and supervision of a Correctional Service of Canada parole officer. Parole may be revoked and offenders returned to prison at any time if they violate the conditions of parole or commit a new offence.

Not all lifers are in fact granted parole. Some are never released on parole because the risk of their reoffending is too great. In fact, I will look later at the numbers of people involved in this situation and we will find that a very small number of people in prison, at the end of the day, would get parole.

During the years following its initial introduction in 1976, the faint hope provision underwent a number of various amendments. Now the criteria for the possible release on parole of someone serving a life sentence are as follows.

The inmate must have served at least 15 years of the sentence. As a matter of fact, the member for Windsor—Tecumseh pointed out this morning that it is usually around 17 years before applicants normally apply and that in fact very few people actually do apply even at that point.

An inmate who has been convicted of more than one murder, where at least one of the murders was committed after January 9, 1997 when certain amendments came into force, may not apply for a review of his or her parole ineligibility period.

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 that there is a reasonable prospect that the application for review will succeed. The assessment is based on the following criteria.

One is the character of the applicant. We have already mentioned that we have excluded multiple murderers from the applying in this case, so the judge has to look at the character of the applicant. If the character is bad, that person would not qualify.

Another criterion is the applicant's conduct while serving the sentence. I am assuming that if the applicant has been involved in something like a prison riot or some other altercation with other inmates within the prison or just has not co-operated, that too would disqualify him or her from applying.

Next is the nature of the offence for which the applicant was convicted. That too, would vary with the individual.

Another one is any information provided by victims at the time of the imposition of the sentence or at the time of the hearing under this section. So once again we are looking at victim impact statements. The judge then has a better opportunity to look at the total picture of each and every situation.

Finally, any other matters that the judge considers relevant in the circumstances can be considered.

If the application is dismissed for lack of a reasonable prospect of success, the chief justice or judge may set a time for another application not earlier than two years after dismissal, or he or she may declare that the inmate will not be entitled to make another application.

The point here is that it is not a simple process. It is a long, involved process and there has to be an exemplary situation on the part of the inmate for him or her to get through all stages of the process and achieve release.

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 that I have outlined. The jury determination to reduce the parole ineligibility period must be unanimous.

Evidently, before, that was not the requirement. I believe it was two-thirds, but now it has to be unanimous on the part of the jury.

The victims of the offender's crime may provide information either orally or in writing, or in any other manner that the judge considers appropriate. This is also an excellent provision of the rules.

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 will not be entitled to make any further applications.

We see within the bill that there are some changes to these provisions later.

If the jury determines that 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 they can assign can 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 the parole. Whether the inmate is released, and when, is decided solely by the board, based on a risk assessment, with the protection of the public as the foremost consideration.

We can see from each of these steps that if there is a red flag popping up at any of these stages, that should end the process. The process should not continue beyond that.

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.

One of the points we have continually made is that progress can only be made if the people in the prisons are actually being rehabilitated. The fact that they are participating in rehabilitation programs is something that we as a society want. We do not want people sitting in the prisons for years and years and refusing to take part in programs. By taking part in programs, the inmate enhances the possibility that at some time, away in the future, there could be some faint hope down the line.

It has been mentioned several times today that Colin Thatcher, a former Conservative member of the legislature in Saskatchewan, had been in jail since 1984. In fact, he wrote a book while he was in prison. He served 22 years or more for the murder of JoAnn Wilson. At the end of the day, I believe the faint hope clause did apply to him only two or three years from the time that his 25 year term would have expired.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, it is an honour for me to stand and speak on behalf of my party and the constituents of Vancouver Kingsway to this important bill, Bill S-6, An Act to amend the Criminal Code and another Act, sub nomine, serious time for the most serious crime act.

Bill S-6 amends provisions in 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 as it is commonly known by which those given a life sentence for murder or high treason could apply for parole after serving 15 years of their sentence.

A similar predecessor bill, Bill C-36, was introduced during the second session of this Parliament but did not become law before that session ended when the current government prorogued Parliament at the end of 2009.

It is important when we discuss profound issues, particularly ones that involve critical issues of crime and punishment and proper approaches to our carceral system, to have a very sound understanding of the structure and facts. I will spend a little time reviewing what the current law is.

Section 745.6 of the Criminal Code, known as the faint hope clause, provides offenders serving a sentence for high treason or murder with the possibility of applying for parole after having served 15 years when the sentence that they have been imprisoned for amounts to 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 parole eligibility date 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 being able to set parole eligibility at some point between 10 and 25 years. Judges have that discretion in our Canadian courts.

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 a fixed link, for instance two, five or ten years, lifers are not entitled to statutory release.

If granted parole, those convicted of a life sentence remain subject for the rest of their lives to the conditions of parole under the supervision of a Correctional Service Canada parole officer.

One thing that is important to point out is that in this country, those who are given a life sentence do have a life sentence. That sentence is and will be applied to them for the rest of their natural lives. The question is whether or not and when they will be permitted to serve that sentence in the community as opposed to being incarcerated.

Parole may always be revoked and offenders returned to prison at any time if they violate the conditions of parole or if they commit a new offence. Of course, not all people who have been given a life sentence are granted parole. Some offenders are never released on parole because the risk of their reoffending is too great and that is appropriately so.

During the years following its initial introduction in 1976 the faint hope provision underwent a number of amendments so that now the criteria for the possible release on parole of someone serving a life sentence include the following. The inmate must have served at least 15 years of his or her sentence. An inmate who has been convicted of more than one murder where at least one of the murders was committed after January 9, 1997, which was when certain amendments came into force, may not apply for a review of his or her parole ineligibility period. 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 superior court judge designated by the chief justice must first determine whether the applicant has shown that 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 his or her sentence; the nature of the offence for which the offender 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 matter that the judge considers relevant to the circumstance.

If the application for early parole is dismissed for lack of a reasonable prospect of success, the chief justice or 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 never be entitled to make another application.

On the other hand, 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 and does consider the five criteria I just mentioned. The jury determination to reduce the parole ineligibility period must also be unanimous.

The victims of the offender's crime may provide information either orally or in writing, or in any other manner that the judge considers appropriate.

If the application is dismissed, the jury may, by a two-thirds majority, either set a time again not earlier than two years after the determination when the inmate may make another application, or it may decide that the inmate will not be entitled to make any further applications. Furthermore, if the jury determines that the number of years of imprisonment without eligibility for parole ought to be reduced, then 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 they may assign can range from 15 to 24 years.

After all that extensive process, once permission to apply for early parole has been granted, the inmate must apply to the National Parole Board to obtain parole. Whether and 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 restrictions of movement, participation in treatment programs and prohibitions on associating with certain people, such as victims, children and convicted criminals and the like.

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 an offender will be eligible to apply for parole.

This section, of course, has been considered by the sharpest legal minds of our country, the Supreme Court of Canada. The Supreme Court of Canada has stated that the purpose of this review procedure 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 may justify lessening the parole ineligibility period.

Section 745.6 of the Criminal Code gives the jury broad discretionary power to consider any matter governing the offender's situation, and the Supreme Court has provided guidelines for the judicious exercise of that discretionary power. The jury, for instance, 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 whether the existing system of parole is effective.

The faint hope clause was added to the Criminal Code in 1976 in the hope that it would provide an incentive for long-term offenders to rehabilitate themselves and therefore afford more protection to prison guards, as well as fundamentally achieve greater justice in our country. 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. For example, Australia, Belgium, Denmark, England, New Zealand, Scotland and Switzerland keep persons convicted of murder in prison for an average of 15 years before they may be paroled.

The very first judicial review hearing under the faint hope clause was held in 1987. Here are some statistics that the House might find instructive.

As of April 12, 2009, 991 offenders had been deemed eligible to apply for a judicial review. Court decisions have been rendered in 173 cases, and 143 inmates have been declared eligible to apply for earlier parole. Of these, 130 were granted parole, representing just over 13% of those who had been deemed eligible to apply for a review of their parole dates.

I spoke about comparing Canada to other countries, and there are some other instructive facts that would be helpful for parliamentarians as we consider this difficult matter.

In 1999, an international comparison of the average time served in custody by an offender given a life sentence for first degree murder showed that the average time served in Canada is 28.4 years. Moreover, that is greater than in all countries surveyed, including the United States, with the exception of offenders in that country who serve life sentences without parole.

Here is the average time spent in custody by offenders convicted of first degree murder: New Zealand, 11 years; Scotland, 11.2 years; Sweden, 12 years; Belgium, 12.7 years; Australia, 14.8 years; United States for life sentence with parole, 18.5 years; and United States for life sentence without parole, 29 years. Once again, Canadian inmates convicted of first degree murder served 28.4 years.

I know the government is fond of saying where Canada sits on the world stage. It uses those facts when it thinks they are helpful. Let us then take a look at this fact: Canada keeps its first degree murderers in prison longer than every country on earth except for the United States.

Those who favour the retention of the faint hope clause have a number of arguments. They argue that judges and juries who consider whether to reduce the parole ineligibility period often take into consideration the circumstances that have led criminals down the wrong path, factors like poverty, fetal alcohol syndrome, low cognition, and other factors. They also recognize that mistakes can be made in court rooms from time to time resulting in innocent people being convicted.

Those who commit murder do deserve to be treated severely. Despite the government's constant attempt to try to simplify any argument other than its own or its attempt to make up straw person arguments that are easy to beat up, let it be said that there is no parliamentarian in this House who does not think that someone convicted of first degree murder ought to be treated severely. Of course they should. Anybody suggesting that any parliamentarian thinks otherwise is simply trying to mislead the Canadian public.

However while acknowledging that, people who favour retaining this section believe that offenders should not necessarily be utterly robbed of all hope, since one of the aims of punishment is rehabilitation. They believe, in other words, that justice must be tempered with mercy.

[Scott Simms, Liberal, Bonavista—Gander—Grand Falls—Windsor, NL]

Mr. Speaker, after that speech I think my colleague should be one of the ones to lead the charge. I certainly put the compassionate argument. I will go back to what I said in my speech. One of the benefits of being a member of Parliament is that we have access to resources and people who work within the industry, people who are experts, people who know more than we do. Believe it or not, some of us actually believe there are others out there who know a lot more than we do. Because of the member's personal experience, he is able to bring the matter of FASD into this House and certainly give it the full debate it deserves. That goes back to the idea of the faint hope clause.

It is an incredible way to debate this issue through the measures he mentioned. The convening measure, the first ministers conference, is certainly something that can bring the whole country together, not to be divisive but to lift the bar on how we can address rehabilitation for people who commit the serious crimes and for people who are victims of FASD, and the member talked about IQs.

That being said, the federal government has that power through the Canada health and social transfer. It can become one of the driving agents behind this. There is nothing wrong with that, because by being in the driver's seat on this particular issue, let us face it, we also safeguard the five principles of health care across the country, which is universal to all despite in which territory or province people live.

I commend my colleague for bringing this up. I think that is all part of the debate within this House. Sometimes we do not give these issues the debate they deserve. It becomes a series of sound bites and cute little slogans that we use from time to time to gain ourselves momentum into the next election. Unfortunately, that may be what I would call the negative aspect of a minority Parliament, if indeed we want to use that. However, there are positives of a minority Parliament and the positives include fulsome debate in order to get something passed. Otherwise, if we do not have the numbers, we have to have honest debate.

Am I convinced that we are using this House in a situation like Bill S-6, the faint hope clause, which was formerly Bill C-36, and the idea of rehabilitation, or protecting victims or allowing victims to receive the justice they so desperately deserve? We need within this Parliament to give these people the voice that they deserve. If we surround it with sound bites and politics and divisiveness, which we see normally on the 10 o'clock news, then they become the ones to whom we have given short shrift. That is the unfortunate part of this.

I implore my colleagues, this is the big reason that I want to send this bill to committee, so that we can discuss these issues. Unfortunately, we did not have that chance before, but now we do.