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.

Criminal Code

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member wants to speculate about what might happen. We have a situation here where the information requested by members was not provided to the committee.

I do not know how this has influenced people's impression but I do know that sometimes simple slogans, simple phrases can sway people. I have been a member of Parliament since 1993 and I believe we have addressed this. I also know that every time it has come up I have voted in favour of retaining the faint hope clause. I have no reason to believe that I should not continue to support the faint hope clause in those rare circumstances where the judges and other stakeholders believe it is appropriate.

That does not seem to have been given the scrutiny during second reading debate or third reading debate. It probably had a better debate at committee, but something happened where someone decided that fundamental information could be withheld or deferred, maybe deliberately. Why? We need to know the answer to these questions: Who is responsible? Why? Would it affect members' impressions and decisions on whether or not they will support Bill C-36?

I think it is possible that this series of events may cause some reconsideration. I would ask the member to let us see how this plays out but I very much believe that members of this place have not been well served by not getting the kind of information that we really need.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the member is a bit premature. The matter here is not about what people would obviously conclude if asked how many people actually get through this process. We know it is a rigorous process and very few people get through it. If anybody read the specific cases involving those who do get out, they would clearly understand why there was a propriety for someone to get early parole under the faint hope clause.

There is one issue that has come out and it is an issue that the member will have to acknowledge. The bill has come back from committee and members were giving speeches at third reading before the motion was made. One side is saying that this is all about victims and about Clifford Olson. The other side is at least providing more focused information.

If those statistics had been available, the quality of questions would have changed. Maybe the quality of the commentary coming from certain members in favour of Bill C-36 would have changed. That information was not on the record specifically and from an authoritative source.

That is missing. That is why the motion to revert to committee is appropriate. That is why maybe a breach of members' rights has been committed.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I think the member has spoken for himself on this matter. The information was requested. The member was assured it was being transmitted and he took the word of those who were transmitting it to him. But it also appears that there is an allegation here with which he probably was not aware of, and that is that a minister of the Crown had the information and did not pass it on to the members. That is new information and that makes it even more critical that the matter be dealt with. Those are the issues.

Could he have mitigated it? The other committee members knew they were dealing with Bill C-36, a bill to amend the Criminal Code to eliminate the faint hope clause, not an inconsequential bill. Maybe the member should ask, why did the committee as a whole not say it would not move forward with clause-by-clause or complete its consideration until it received basic information that clearly was essential to the consideration of Bill C-36?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I am not a lawyer by profession, but I am a member of Parliament and most members of Parliament are not lawyers. They rely very heavily on the training and back ground of those who are legally trained to inform us, to advise us of the facts and to give us a foundation in which we can make an informed decision as to how we may address certain matters of a legal nature.

We are debating a bill, the subject matter of which has come up a number of times in private members' bills, particularly since I have been here. Since 1993, I think it has been raised at least four times. It is a matter that has always raised an argument that borders on emotional response rather than substantive response based on fact.

There is no doubt in my mind that unless one has been there, one does not know what it is like to lose a loved one in a violent crime. There is probably very little that can be done to change the memory, the pain and the suffering of the families and close friends of victims of violent crime, of murder.

While I was not totally aware of the amendment that was moved but I understand better now why it was, but one of the things I did to prepare myself for today was to look back at some of the old debate and some of the history as well as what others had said, particularly at committee, at whom we would tend to maybe look.

I saw, for instance, the Elizabeth Fry Society. One of the questions I had asked it, and I raised the question before, was the fact that all cases were not the same. I know the example of Clifford Olson has been raised many times in this place on this argument. I believe Clifford Olson actually is eligible to apply for parole, and I believe he has applied. I do not know the details in terms of whether he was declared a dangerous offender, but I think it was overturned.

It does not matter. In terms of debate in this place and trying to influence the public's impressions about what is going on here, Clifford Olson is probably a very good example to use if we are in favour of getting rid of the faint hope clause so no one like him ever gets out of jail, period, or any same or similar serial killer.

I do not think serial killers can apply under the faint hope clause, but there is some judgment. I will yield to whomever raised it in debate yesterday. Is it possible that It may very well have been misinformation? That is why I have raised it because there is no possibility that Clifford Olson will get out under the faint hope clause.

I asked people what they thought about it. I asked some of my constituents about this as well. The matter was dealt with last June at second reading and then it went to committee. On November 16, it finished at committee and was reported to the House on November 18, and here we are immediately. This is another switch the channel week where we go to justice bills. Here we are on C-36.

When I asked some of the constituents, they were not very familiar with the faint hope clause. In fact, they were not very familiar with a life sentence. I have the feeling that the majority of Canadians do not understand sentencing, parole, faint hope, conditional sentencing and house arrest. Many terms are floated around and people have busy lives.

However, when we get around to things like capital punishment or in this case, the faint hope clause, everyone has an opinion, but that opinion is based on whatever knowledge they happen to have and whatever interpretation they happen to be given.

When people commit serious crimes and are sentenced to life, that is a life sentence for the rest of their lives. However, there is a proviso that after 25 years, they can apply for parole. As the previous speaker said, for those persons who are convicted of murder, the average sentence served is 28.5 years, I believe. Ostensibly it means a lot of people are in there a lot longer than 25 years. Some people in fact do get out at 25 years, so there must be quite a range depending on who it is.

After 25 years, offenders are automatically eligible to apply for parole. In Bill C-36 we are talking about faint hope clause, which says that after 15 years there is a process that they can go through in which they can apply for early parole, but it will be a very stringent process.

Yesterday in debate I thought the member for Halifax had a very tight description, and I want to share it with the House, about the process of the faint hope clause, which is important to understand. She is a lawyer and says that the amendment to the Criminal Code, as recommended by Bill C-36, is for the most serious crimes. It would amend provisions with regard to the rights of persons convicted of murder or high treason to be eligible to apply for early parole, She identified it colloquially as the faint hope clause.

She said that it provided offenders with the possibility of obtaining parole after 15 years of a sentence for murder where the sentence was life without eligibility for parole for more than 15 years. She went on to say that offenders convicted of first degree murder served life as a minimum sentence, with the first parole eligibility set at 25 years, which is what I indicated. For offenders convicted of second degree murder or a mandatory sentence of life is also imposed, but the judge can set parole eligibility at any point between 10 and 25 years. That may involve murder. Those who are serving a life sentence can be released from prison if the parole is granted by the Parole Board.

Inmates that are granted parole will, for the rest of their lives, remain subject to the conditions of a parole and supervision of a Correctional Service parole officer, et cetera. There are conditions of being on parole. Break parole and they can be right back in jail and then they have to serve their time.

There was no disagreement with the description of the process that someone had to go through under the faint hope clause to get parole and to be considered after 15 years. The process is so rigorous that very few people apply at 15 years. There is clearly an assessment of whether they have been rehabilitated, or have been model prisoners, or there were victim impact issues, or there were other exasperating circumstances. There are many considerations. It is a complicated, very rigorous process that goes on with regard to giving consideration.

Therefore, it surprised me to hear the debate. One could see that the proponents of Bill C-36 wanted to eliminate this opportunity for early consideration of parole at 15 years from the automatic 25 years because of the victims. They want to deal with victims and forget about who did the crime. We have heard this a lot. If one does the crime, one does the time.

Everybody in Canada should know that, based on the statistics, someone who commits murder in our country is eventually going to be back on the streets. That is the reason why we have a system that provides for rehabilitation and early release under parole programs of inmates if things have gone well, if they understand, if they have been repentant of their crime, and if all of those goods things that everybody would expect make this a problem that should not and probably would not recur.

As the previous speaker said, 80% of these severe and most serious of crimes such as murder are committed by persons who know the person they kill. As a matter of fact, a large proportion of those are family members killing other family members and close friends killing close friends. These are people that they know. These are not drug pushers who are out there with guns, shooting people, stealing and robbing banks and things like that. Of these criminals, 80% are people who knew their victim.

I do not think that most Canadians would suggest that these 80% would be the kinds of persons that would go and commit a second murder. It is possible, but is it probable? There is an argument about some cases where people are going to prison for life and they are going to be there for at least 25 years before they get the first chance to even consider getting out. It may even be longer than that and that is the way it is going to be. All the faint hope clause does is say that there are some circumstances in which having the eligibility for parole after 15 years may be reasonable, may not be a risk to society, and may be in the public interest.

What about the victims? The victims have a say in the process. The courts and judges have a say. It has to be unanimous. I will not go through the process because, quite frankly, I do not know it in all the glorious detail. However, it is an extremely onerous process to go through to be able to convince the judges that a person would merit consideration for early parole. It is not Clifford Olson. It is not going to happen.

I got here and heard the motion of recommital to committee of Bill C-36 and to reconsider or amend clauses 2, 3, 4, 5 and 6. The member who made the motion to recommit has advised the House that information was requested with regard to statistics and other related information about how often the faint hope clause was used, how many people applied for early parole on their first opportunity at 15 years, how many were granted parole on their first attempt, the age at which they got out, and on recidivism rates, which is a very significant issue to handle when dealing with matters of parole. While debating other bills, we heard that people under conditional sentencing or house arrest were less likely to reoffend than people who had to serve the entire sentence in jail and crime school.

We have that evidence, so it does not surprise me that this particular member asked for that information and the other parties concurred that this is information we should have. Tell us what is happening. How often has it happened? How successful has it been? Have there been problems? What has the victim reaction been?

I read one of the cases the Elizabeth Fry Society provided when it appeared before the committee. A severely abused woman killed her husband and refused to apply for the faint hope clause because it was her children who would have to attend the process and she did not want her children to be exposed to it. She would rather stay in jail and serve all of her time because she loved and cared for her children.

There are a number of cases. There was another one I will refer to. The last figures obtained, and no, I will not go there because it is a little too long. However, suffice it to say, I will refer members to the testimony of the Elizabeth Fry Society, which has been following this since it became a periodic matter before the House.

We second, as the full chamber, to our committees the mandate under the Standing Orders to do this work. The Standing Committee on Justice and Human Rights has been bombarded with a series of bills, which should not have been the case if the government had used the omnibus bill approach to many of these bills, so that the committee would not be tied up so long and the same witnesses would not have to return.

The government has used this as a tactic. It has used it as a tactic to basically clog up the committee so bills would not go through very quickly, which means it could continue to talk about the same things over and over again. It could do a prorogation, go into a new session of Parliament, reintroduce the bills in a slightly different form and not take advantage of the work that has been done.

This particular case almost requires an investigation, I would say, simply from the standpoint that the committee asked for information which, on its face, is very relevant to the consideration of the bill before us.

Now the committee has reported this bill back with some amendments. However, how many amendments may have taken place at the committee stage or how many report stage motions would have been put forward based on the new information the committee could have received, and how is it possible that communications could be so fouled up that members who asked for information, and were told was accessible did not get the information they asked for?

Members of Parliament have rights. Those rights have been violated. That is fundamentally the reason why the member had to move the amendment. He and the committee could not do the job in the best fashion they wanted to because the information asked for was being denied to the member, directly or indirectly.

That is worse than most things that happen in this place. It is a breach of the member's rights, the committee's rights, and all of us collectively because we seconded, through the Standing Orders, the responsibility to the Standing Committee on Justice and Human Rights to look at these justice bills. Why does it take a member having to rise in this place and say he has no choice but to revert this bill back to committee?

I am not even sure that is going to resolve the breach of the member's rights. I am also not sure whether there should be a motion that there be a full investigation by the Standing Committee on Procedure and House Affairs or some other ad hoc committee to find out what happened in this case. It is outrageous and I congratulate the member for raising it with all hon. members.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, on a point of order, I would ask for your direction. I understood that we were debating the motion to refer the bill back to the committee, not the merits of Bill C-36.

The motion to refer the bill is really a procedural motion, based on the NDP alleging that the minister failed to provide information pertinent to the committee doing its work. It has nothing to do with the merits of the faint hope clause.

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I want to thank the member for his comments on Bill C-36, which is eliminating the faint hope clause.

He referred to this legislation as shameful, but I would suggest that what is shameful is this member and his party's opposition to a bill that will eliminate something that has caused great grief to victims across this country.

The faint hope clause provides convicted first and second degree murderers an opportunity to apply to be released well before their statutory parole dates come due. Victims have been asking that we eliminate this, because it revictimizes them as frequently as every two years after the 15th year of incarceration.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I am going to follow two routes in my speech. One is the bill itself and the other one is the procedures that have been followed in getting the bill before the House.

This is not a trivial issue. We are talking about murderers, people who have been convicted of first degree premeditated murder. There is no one in the House who does not understand that.

We also know that this has been an ongoing debate. In the speech by our colleague from Manitoba we heard some of the history that has led us to the process that is followed in our courts today. It involves the debate around the death penalty and the debate about dealing more appropriately with the families of murder victims than we have done historically and how we best protect our society from future murders, from future violence by removing individuals from society.

That debate inevitably, and I say inevitably because it is true in every democracy that I have looked at, leads us to what is the appropriate period of incarceration in order to achieve the goals of public safety, protection of the public, protection of victims' rights. How do we best achieve that? That is what this debate is about. It is what Bill C-36 and its predecessors is all about.

We often hear government members in the House and in public raise fears in the families of victims, which I think is to their eternal shame in many respects, as opposed to dealing with the facts. We then get to the process that we went through in getting the bill back to the House for third reading.

I want to make this point. There were two types of evidence that came before the justice committee. One was anecdotal, based on perceptions and emotion in many cases. That was the preponderance of what came before committee, anecdotal evidence. There was a little bit of factual evidence. I cannot help but conclude that this process with this bill in particular is faulty. It is faulty more so than with any other crime bill that has come before the House by the current administration since 2006.

The minister appeared before the committee. He was asked a number of questions about how the system works and he was not able to give us factual information. Those are his own words. I am not reading anything into it.

We were told by the minister and his officials from the justice department that the information we were seeking of how the system really works resided with the Department of Public Safety, and specifically within the corrections division of that department.

I had checked to see if Statistics Canada's Juristat had the factual information as to how these sections of the Criminal Code dealing with the faint hope clause worked. It did not gather that information. It also advised me and other members of the committee that it all resided in corrections.

We needed a number of pieces of information. One of the more pertinent pieces of information that the government should have had, given the Conservative Party's long-standing claim of being the champion of victims rights, was how many family members of victims actually used the process. I can say unequivocally today that that information never came before the committee.

With all the research that I have done, with all the enquires that I and other members of committee have made, I can say that information does not exist. We received anecdotal analysis, but in terms of public policy, there was no factual evidence.

We do not know exactly how many applications are made. We do not know factually how many applications are made on the first opportunity, that is, at the 15 year mark of incarceration. We do not know how many applications are made at the 17 year mark, the 19 year mark, or the 20 year mark. We do not know, for instance, at what age people are released under this process. I could go down the list.

We do not have all sorts of information on recidivism, the small number of people who are released and commit another crime and are incarcerated again. And they may not have committed another crime, but they may have breached the terms of parole, which are very stringent.

We do not have any specific answers to that list of items.

In spite of that, the government is going ahead with this bill based entirely on anecdotal evidence at best and almost exclusively on the, and I hate using the word “demagoguery“, but it is accurate, of their speeches as the Conservative Party, as the Alliance Party and as the Reform Party. None of this is based on fact.

A report in 1999 gave us some of the factual answers to the list of items I just enumerated. That information is now 10 years out of date. We know from some of the evidence that things have changed. There have been other amendments. There has been some tightening up of the process by the judiciary and by the Parole Board. We know it has changed somewhat but we do not know how much it has changed in this 10 year period. No additional work has been done. No additional work was done by the prior Liberal administration up to 2006, and the Conservative government has not brought that information up to date.

I will come back later in my speech to how flawed the process was in getting us here. I want to make one other point on something that I find really offensive with this legislation.

When we look behind the government's agenda, we find that this is really about an ongoing attack on our judiciary. In this case, it is also an attack on the jury system. It undermines the credibility of both of these institutions that have stood us in good stead in this country and in the Westminster style of democracy for hundreds of years. Is it perfect? I will be the first one to say that from my years of experience in the courts that it is not perfect, but it is a very solid system. It is a system that is deserving of the respect of the legislators of this chamber. This bill seriously undermines our system.

Under the present system an incarcerated individual convicted of first degree murder has to wait 15 years before he or she can apply to be considered whether he or she can apply for parole. The individual is not applying for parole but is just applying for permission to apply for parole. A judge in the area where the murder was committed has to screen whether or not that individual has a reasonable possibility of convincing a jury that he or she should be allowed to apply for parole.

With this bill, we would be undermining that and taking it away. First of all, we would be making it harder because the test for the screening process will be tougher and, of course, ultimately it will do away with the screening process completely because it will do away with the faint hope clause.

That is bad enough, but we also go right at the jury system and say to the jury in the bill, “We do not trust you, the jury,” the 12 men and women picked from the area or community where the murder was committed. We do not trust the jury to look at the facts and the individual who is applying and to make a determination based on all of the facts whether the person has rehabilitated himself or herself, although it is almost always himself, to the point where we believe that person should be allowed to apply for parole. We do not trust the jury to make that decision any more. We are taking it away from the jury.

That is what the bill would do. It is a serious undermining of the jury system to which every legislator in this House should be paying very clear and solid respect. It would strip both the judge and the jury of that responsibility. It is shameful that we would pass a bill like this.

Following my own and the Bloc's representations on the justice committee, we had arranged for the head of the Correctional Service of Canada to appear before the committee, because we were told by Juristat and the office of the Minister of Justice that correctional service staff were the only ones who could answer factually some of the questions we had raised.

We arranged for Mr. Don Head to appear before the committee. He came before the committee without anything prepared and took questions, including a series of questions from me and the member from the Bloc. In the course of that questioning, it became clear that the information was not compiled in any way. For instance, he could not tell us how many victims' families had asked to make a victim's statement and he could not tell us the specifics of the recidivism rate. He only had generalities that he could talk a bit about to us. He could not tell us at what ages most people were convicted and most individuals got out of prison.

We could go down the list. There were at least a half dozen very specific points that he confirmed the Correctional Service of Canada could give us answers on. He said to me and the member from the Bloc and the chair of the committee that the information could and would be available by the time we got to clause by clause consideration of the bill, scheduled for November 16. Mr. Head appeared before the committee on November 4. It was very clear that he could do it in that period of time.

The week of November 9 was a break week for the House to commemorate Remembrance Day in our ridings, but we were back on November 16. I asked where the information from the Correctional Service of Canada was so that we could do clause by clause in a meaningful way. I was told it had been sent to our offices.

I have subsequently learned that other members of the committee, both from the Bloc and the Liberal Party, with similar questions about where it was were told the same thing. We all jumped to the conclusion that somehow we had missed that information in our offices, and so we went ahead with clause by clause. The bill went through committee stage and, of course, it is now back in the House for report stage and third reading.

After November 16, I again told the clerk that I did not have the information in my office and asked if it could be sent to my office again. Yesterday morning when I arrived at my office, it was not there. We called again at that point and were advised that in fact it had never been sent either to my office or to anyone on the committee, because it had been sent to the office of the Minister of Public Safety and that it had at least been there by November 16.

That information was never provided to the committee. The committee went ahead with clause by clause without all of that factual information, which was our only source of such information.

Yesterday, I was advised by the Conservative deputy House leader that in fact the minister had that information on his desk and had not seen or approved it. I have to say as a sidebar that he has no right to approve it; this is not a situation where he gets to vet that information. If committees are going to work in the House, they must have access to information without it being censored, deleted or affected in any other way by the decisions of the political masters in our legislature.

I still do not have the information. I had wanted it yesterday, as I had expected to speak on this bill then and to use some of data to try to convince the House to vote against this bill. I still do not have it. I was advised by the Conservative deputy House leader yesterday that I might get it in another week.

We know that if that happens, this bill is going to come to a vote before we ever get the information, and I am certainly not going to be able to use it today in my arguments for why we should defeat this bill. The minister should not have done that.

I want to be very clear after having gone through the blues extensively. When Mr. Head was before the committee, he committed to the member for the Bloc and to me that he would have that information for us by the time we got to clause by clause on November 16.

I pushed him about it again just as he was leaving his seat at committee and the Conservative chair of the committee received a commitment from him that it would be back to the committee, not to the minister. There was no discussion of any of this going to the minister, nor should there be. He said it would be back to the committee by November 16. The blues show that.

Something has to happen, as we cannot allow this to continue. Therefore, I move that:

Bill C-36, An Act to amend the Criminal Code, be not now read a third time but be referred back to the Standing Committee on Justice and Human Rights for the purpose of reconsidering Clauses 2, 3, 4, 5 and 6 with a view to making any amendments which may be called for as a result of information undertaken to be placed before the Committee by departmental officials on November 4th, but which the office of the Minister of Public Safety failed to provide before the Committee considered the Bill at clause-by-clause.

Just to conclude, we cannot—

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

Mr. Speaker, as a matter of clarification, the member for Elmwood—Transcona should know that if Bill C-36 were to pass, those incarcerated would not be locked up without any possibility of parole. They would just be precluded from applying for early parole, like in the 16th year, but would need to wait for 25 years before they apply. However, the member said that he would not take any lessons from us with respect to victims' rights, so I will give him another opportunity. If the Manitoba government was so keen on victims' rights when he was a part of it, what will he say to the families of victims when he votes no to Bill C-36?

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

Mr. Speaker, I will get to my question, but first I would like to say a few words.

Personally, I do not think the Conservatives are in a position to say that Bill C-36 takes care of victims at this time. The existing faint hope clause takes care of victims a lot better than Bill C-36 seems to. Indeed, very few people have had access to the faint hope clause or will have access to it. The Conservatives are in no position to say that we do not care about victims. I will probably have the opportunity to come back to this later today.

In the Standing Committee on Justice and Human Rights, we have not received all relevant information regarding the abolition of the death penality in several countries. I would very much like my hon. colleague to finish his speech—albeit quickly—concerning Canada's position on the death penalty with respect to other countries.

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

Mr. Speaker, it is a pleasure to speak today to Bill C-36, An Act to amend the Criminal Code, which is called by some as the “serious time for the most serious crime act”. The bill was given first reading in the House of Commons on June 5 and was referred to the House of Commons Standing Committee on Justice and Human Rights on June 18.

The bill would amend provisions of the Criminal Code regarding the right of persons convicted of murder or high treason to apply for early parole. This is done through the elimination of the so-called faint hope clause by which those given a life sentence for murder or high treason could apply for parole after having served 15 years of their sentence.

In terms of the current law, section 745.6 of the Criminal Code is known informally as the faint hope clause because it provides offenders serving a sentence for high treason or murder with the possibility of parole after having served 15 years where the sentence has been imprisonment for life without eligibility for parole for more than 15 years.

Offenders convicted of first degree murder receive life imprisonment as a minimum sentence with the earliest eligibility for parole set by law at 25 years. For offenders convicted of second degree murder, a mandatory sentence of life imprisonment is also imposed with the judge setting parole eligibility at a point between 10 and 25 years.

Those serving a life sentence can be released from prison only if granted parole by the National Parole Board. Unlike most inmates who are serving a sentence of fixed length, for example, 10 or 20 years, lifers are not entitled to statutory release. If granted parole, they remain subject for the rest of their lives to the conditions of parole and the supervision of a Correctional Service of Canada parole officer. Parole may be revoked and offenders may be returned to prison at any time if they violate the conditions of parole and commit a new offence.

Not all lifers are granted parole. There has been a lot of debate about this over the years and there is an assumption on the part of many that somehow it is automatic. That in fact is not true at all. Some lifers are never released on parole because the risk of their reoffending is too great. One good example is Clifford Olson who was also mentioned yesterday by some of the speakers.

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

First, the inmate must have served at least 15 years of a sentence.

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

Third, to seek a reduction in the number of years of imprisonment without eligibility for parole, the offender must apply to the chief justice of the province or territory in which his or her conviction took place. The chief justice or a superior court judge designated by the chief justice must first determine whether the applicant has shown there is a reasonable prospect that the application for review will succeed.

This assessment is based on the following criteria: the character of the applicant; the applicant's conduct while serving the sentence; the nature of the offence for which the applicant was convicted; any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and any other matters the judge considers relevant to the circumstances.

At a later point I will give the statistics as to how many people actually qualify for this. Members will find that it is a very small number indeed, which is probably the way it was intended.

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

If the chief justice or judge determines that the application has a reasonable prospect of success, a judge will be assigned to hear the matter with a jury. In determining whether the period of parole ineligibility should be reduced, the jury should consider the five criteria outlined above. The jury determination to reduce the parole ineligibility period must be unanimous. The victims of the offender's crime may provide information orally or in writing, or in any other manner that the judge considers appropriate.

I merely went through all of those stages in an effort to explain to people who may be viewing today that this is not a slam dunk. The Conservative government tries to pretend that it is and perhaps some media stories might suggest this but there is a very rigorous process followed here before anything is done.

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

Once permission to apply for early parole has been granted, the inmate must apply to the National Parole Board to obtain parole. Whether or when the inmate is released is decided solely by the board based on a risk assessment, with the protection of the public as the foremost consideration. Board members must also be satisfied that the offender will follow specific conditions which may include restriction of movement, participation in treatment programs and prohibitions on associating with certain people, such as victims' children and convicted criminals.

The faint hope clause review then is not a forum for a retrial of the original offence, which is, of course, the way the government speakers want to make it sound and continue to suggest that is the case. I want to repeat that a faint hope clause review is not a forum for a retrial of the original offence, nor is it a parole hearing. A favourable decision by the judge and the jury simply advances the date upon which the offender will be eligible to apply for parole.

In terms of the judicial consideration of the faint hope clause, the Supreme Court of Canada has stated that the purpose of this review is to re-examine a judicial decision in light of changes that have occurred in the applicant's situation since the time of sentencing that might justify lessening the parole ineligibility period.

Section 745.6 of the Criminal Code gives the jury broad discretionary power to consider any matter concerning the offender's situation. The Supreme Court has provided guidelines for the exercise of this discretionary power, namely, that the jury must consider only the applicant's case and must not try the cases of other inmates who may have committed offences after being released on parole. The court has also stated that it is not the jury's role to determine if the existing system of parole is effective.

In terms of the history of the faint hope clause, in July 1976, Parliament voted to abolish capital punishment for Criminal Code offences as opposed to the death penalty for military offences which was not abolished until 1999. The Criminal Code was amended and the categories for murder were changed from capital and non-capital to first and second degree murder.

Mandatory minimum sentences for murderers were introduced. The compromise arrived at between the supporters and opponents of the death penalty was its replacement with long-term imprisonment without parole. The faint hope clause was adopted in 1976 in connection with the abolition of the death penalty.

Speaking in favour of the abolition of the death penalty and the addition of the faint hope clause in the Criminal Code was the solicitor general of the day, who we all remember, Warren Allmand, who said:

I disagree with those who argue that a life sentence with no parole eligibility for 25 years is worse than death. A period of incarceration, with hope of parole, and with the built-in additional incentive for the inmate, and protection for the guards, of a review of that parole eligibility after 15 years is necessarily better than a sentence of death because it removes the possibility of an irreversible error of execution.

I recall the governor of Michigan who was very strong on the death penalty. This was only in the last 10 years. He did an about-face when it was discovered that a huge number of inmates serving sentences in the Michigan jails were falsely convicted. Of course, that was one of the major reasons that the death penalty was overturned back in 1976.

Thus, the faint hope clause was added to the Criminal Code in the hope that it would provide an incentive for long-term offenders to rehabilitate themselves and, therefore, afford more protection to prison guards. The provision is also said to represent Parliament’s awareness of how long other countries imprison persons convicted of murder before allowing them to apply for parole.

I have some very interesting information on that, which I will get to very soon. For example, Australia, Belgium, Denmark, England, New Zealand, Scotland and Switzerland keep persons convicted of murder in prison for, on average, 15 years before they may be paroled.

Concerns were raised about the faint hope clause in the course of the debate over the abolition of capital punishment. One member of Parliament said that, before going any further with parole provisions, a total reform of the Criminal Code to include rehabilitation, help for crime victims and greater rights for police officers would need to be considered. The same member, Mr. Gauthier, said:

--[a]s long as we persist in shutting up our criminals in the schools of crime that our prisons now are... they will come out even more rebellious, and I would even say even more refined in their future actions.

The first judicial review hearing under the faint hope clause was held in 1987. As of April 13, 2009, 991 offenders were deemed eligible to apply for a judicial review. Court decisions were rendered in 174 of those cases and 144 inmates were declared eligible to apply for earlier parole. Of those, 131 were granted parole, representing over 13% of those who had been deemed eligible to apply for a review of their parole date. That is not a huge number by any stretch. However, if we were to listen to the Conservatives, we would think that the streets were teeming with people in this category.

The most recent published Correctional Service of Canada statistics concerning the fate of prisoners released on parole under the faint hope clause for April 2008 show that of the 125 offenders who had been released by that date, 95 were being actively supervised in the community, 15 had been returned to custody, 11 were deceased, 1 was unlawfully at large and 3 had been deported. These statistics also show that of a total of 22,831 offenders under Correctional Service of Canada jurisdiction at the time, 4,429 or 19.4% were serving life sentences and almost all of them for murder.

In terms of the history of imprisonment for murder in Canada, while the Criminal Code has a single definition of murder and one specification of the punishment that applies throughout Canada, the legislation pertaining to sentencing for murder has changed considerably in the course of the past 50 years.

In November 2002, Correctional Service of Canada published a study on the average time offenders sentenced for murder spent in prison. This study took into account three periods defined by the murder-related legislation that was in force. Pre-1961, persons convicted of murder were automatically sentenced to death. Between 1961 and 1976, capital and non-capital murder designations were in effect and, from 1976 to 2002, first and second-degree murder designations were in effect. So, there have been three different regimes that we have experienced over our lifetime as a country.

Before September 1, 1961, any person convicted of murder in Canada was automatically sentenced to death and the sentence carried out unless the Governor General, acting on the advice of cabinet, those of us who are old enough to remember those days remember the drama involved in each and every one of those cases, commuted the sentence to life imprisonment. That is, in fact, what used to happen in the latter years. This was called the royal prerogative of mercy. Historical evidence indicates that the royal prerogative was frequently exercised and operated flexibly.

Between Confederation and 1962, the year of the last execution in Canada, the federal cabinet commuted just under half of all death sentences to life imprisonment. Decisions to execute or spare were made on a case-by-case basis, not according to formal rules of evaluation. The Governor General was not obliged to justify his or her decisions and the deliberations in cabinet were not recorded. In fact, it has been said that clemency decisions were basically a balancing act in which personal prejudices and political expediency often tipped the scales.

Meanwhile, from 1899 to 1959, the Ticket of Leave Act operated on the principle that release was an important part of the rehabilitative process. Under the terms of this act, the Governor General would grant a conditional release to any prisoner serving a term of life imprisonment. Although not applied to death sentences, conditional release later became possible for those sentences commuted to life imprisonment. On February 15, 1959, the proclamation of the Parole Act resulted in the abolition of the Ticket of Leave Act and the new act enshrined the principle of rehabilitation and created the National Parole Board.

That is the beginning of the National Parole Board with which we are all familiar.

Parole was defined as the authority granted to inmates to be at-large during their terms of imprisonment. The legislation set out the new criteria for parole. The Parole Board could release an inmate when he or she had derived the maximum benefit from imprisonment, and when the reform and rehabilitation of the inmate would be aided by parole and when release would not be an undue risk to society.

Under the Parole Act the Parole Board would, at particular times prescribed by the regulations in place, review the case of each inmate serving a sentence of imprisonment of two years or more, whether or not an application had been made or on behalf of the inmate. The inmates sentenced for murder were still eligible for release only under mechanisms such as reduced sentences, pardons and the royal prerogative of mercy.

Amendments made to the Criminal Code in 1961 formally differentiated between death and life sentences. These changes resulted in murder being divided into capital and non-capital murder. With these amendments, capital murder was defined as murder that is planned and deliberate, murder committed in the course of certain crimes of violence by the direct intervention or upon the counselling of the accused, and the murder of a police officer or a prison warden acting in the course of duty resulting in such direct intervention or counselling.

Such murder was still punishable by mandatory hanging except if the accused was under 18 years of age. All other murder referred to as non-capital was punished by life imprisonment. In addition to this amendment, in 1961 an automatic review of all capital convictions by the provincial Court of Appeal was established as well as a full right of appeal in the Supreme Court of Canada. This was a review of fact or law alone since the sentence was mandatory and could be reduced only by cabinet.

As outlined above, in July 1976 Parliament voted to abolish capital punishment for Criminal Code offences. The Criminal Code was amended and the previous categories of capital and non-capital murder were replaced with first and second degree murder. Mandatory minimum sentences for murder were introduced with lengthy periods of parole ineligibility.

I am going to have to move ahead because I am not going to finish all my points, but I am sure members are going to be asking me questions so I can get some of this through.

I did promise I would deal with the issue of other countries. In 1999 an international comparison of the average time served in custody by an offender given a life sentence for first degree murder showed the average time served in Canada of 28.4 years was actually greater than in all countries surveyed including the United States. The countries we looked at were New Zealand, Scotland, Sweden, Belgium, Australia, and Canada had a higher rate than they did.

The House resumed from November 23 consideration of the motion that Bill C-36, An Act to amend the Criminal Code, be read the third time and passed.

[Libby Davies, NDP, Vancouver East, BC]

Madam Speaker, I am pleased to rise in the House today to speak to third reading of Bill C-36.

I spoke in the House at second reading and during that debate I expressed my very serious concerns about the principles of this bill and what it would do to our justice system. When the bill went back to committee, I know the NDP justice critic, the member for Windsor—Tecumseh, put forward some amendments to the bill that would improve the support and involvement of victims and family members. Unfortunately, those amendments were not allowed. Now the bill is back before the House at third reading. I must say the concerns that I and others have expressed here today not only remain but may be stronger than ever.

After listening to the debate today in the House, what really troubles me is that the response from the Conservative government on any problem or serious issue it sees in our society is that there always has to be a tougher sentence. Everything is answered in its mind and world as a tougher sentence.

What we are dealing with here is the justice system as a whole. I heard one of the Conservative members say that it seems to be all about the offender. No, it is not about the offender. It is about our justice system, whether we have balance in it and whether we are doing things that actually help rehabilitate people.

When people have committed crimes, are convicted and sent to prison, they are serving time for that crime, but it is also about rehabilitation. I really have not heard that word today on the Conservative side.

We are hearing in the debate today that there are many members who are very concerned about this bill because it is fundamentally going to change the kinds of balances we have in our justice system, and for that reason we are—

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

Madam Speaker, the member opposite was clear and unequivocal that he and his party would be voting against Bill C-36 at third reading. He indicated support for that position from lawyers, primarily criminal defence lawyers, bar associations and correctional officers. He said that he respects correctional officers, as do I. There are many who live in my riding.

He talked about offenders, specifically one who was a successful applicant under the faint hope clause. However, he did not talk about two other groups that need to be talked about in this debate. One group is the victims, or mostly the families of victims, because unfortunately, the actual victims are deceased, and the other group is the public.

When the member stands and votes no to Bill C-36, what will he be saying to the families whose loved ones were the victims of premeditated murder? What will he be saying to the public who does not believe that serving 15 or 16 years in jail is appropriate for premeditated first degree murder?

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Madam Speaker, I am pleased to speak to Bill C-36 on behalf of my Bloc Québécois colleagues.

I would like to begin by saying that the Bloc Québécois will not vote in favour of this bill at third reading, even though we supported the bill in principle at second reading in order to send it to committee so that witnesses could be heard and could enlighten the government about the bill's scope and merits. It appears that, as my NDP colleague, the member for Outremont, mentioned in his speech, clearly major witnesses such as the Association des avocats de la défense and the Canadian Bar Association vigorously opposed this bill. Having heard the witnesses and thoroughly reviewed the bill in committee, the Bloc Québécois has decided to vote against this bill at third reading.

Quite simply, we also feel that this bill is not warranted. Once again, the Conservative government is using smoke and mirrors to try to make people believe that it is getting tough on crime and that is it in favour of maintaining order and strict public morals. It is introducing a whole raft of bills whose application is really quite doubtful. Bill C-36 is a case in point.

We know that the bill addresses the most serious crimes, such as premeditated murder, that have the biggest impact on victims and affect the population as a whole. We recognize that. Individuals sentenced to life in prison can apply for parole after a certain length of time, depending on whether they have been convicted of first-degree or second-degree murder. We recognize that in the hierarchy of crimes, these are very serious crimes. That is why these major crimes carry the stiffest penalties and, as I said earlier, are punished by life in prison.

Sometimes sentences are too lenient and parole is too lax, for instance, parole after one sixth of the sentence has been served, which we have right now and which could benefit white collar criminals because this government decided to take its responsibilities. In Quebec, we have the Norbourg affair and the Vincent Lacroix affair. The latter will be released after serving one sixth of his sentence with exorbitant amounts of money that is probably being kept in some tax haven somewhere such as Barbados, the Bahamas, Turks and Caicos or Trinidad and Tobago. He is going to live the sweet life after serving a few months in prison and depriving honest people of their income. That might have been the only amount of money they were able to set aside; a little nest egg they managed to build up over years of hard work. It was not necessarily multi-millionaires that Vincent Lacroix bilked. In most of the 9,200 cases, it was ordinary people who had worked their entire lives. There was even the case of two young people who had inherited money from their parents after they died in an automobile accident. That money and the insurance settlement they received went up in smoke because of Vincent Lacroix's malicious acts.

We agree that parole should not be too lax because that undermines the credibility of the justice system and fuels the impression that criminals are treated better than victims. I want to reiterate that the Bloc Québécois sides with the victims and not with the criminals, as the demagogues opposite accuse us whenever we oppose a law and order bill on this government's agenda.

That is what happened with the Afghanistan issue: we have been accused of being on the Taliban's side. That is no joke. That is how the Conservatives work. That is demagoguery, and that is why this government is so dangerous. This government tries to manipulate public opinion. Fortunately, those listening can tell the difference between true and false.

This bill would repeal a provision that gives an offender sentenced to 20 or 25 years the opportunity for a hearing after 15 years. I am talking about a criminal who is sentenced to life in prison with a chance to apply for parole after 15 years.

The current Criminal Code contains the faint hope clause, which gives offenders a chance to apply for parole after 15 years. Parole officers are not the ones who decide. The offender has to apply to a judge and a 12-member jury, a jury of 12 ordinary citizens who must decide, based on time served, evidence of character, and statements from psychiatrists, social workers, experts and so on, whether the individual might be eligible for early parole.

That is what the faint hope clause is about. The Conservatives want to pursue their law and order agenda by repealing this subsection, which is actually working pretty well. That is what defence lawyers told us in committee. The Canadian Bar Association told us that the system works. The association told the Conservatives that the only reason they are trying to pass this kind of bill is that they are trying to set the agenda for the next election.

Some cases are successful. Here is an example. If Bill C-36 is passed, people will not have a chance to apply for parole. This particular case involves a man I know, a lawyer named Michel Dunn from Chicoutimi, with whom I studied at the Chicoutimi seminary and with whom I worked in housekeeping at the Chicoutimi hospital, to pay my way through university. He studied law at Laval University. He got into some shady financial trouble and killed his law partner, Serge McNicoll, when the two were shooting clay pigeons on a Lac-Saint-Jean beach at Saint-Henri-de-Taillon or Sainte-Monique-de-Honfleur, I do not remember exactly.

He was convicted of murder. He was sentenced to life in prison with the possibility of parole after 25 years. After 15 years, he used the faint hope clause to get a hearing, and was paroled. Now, Michel Dunn is an in-reach worker and helps criminals return to society. His is a success story. During his years of incarceration, his behaviour was impeccable. He was surrounded by hardened criminals. He was in a very difficult place, and he helped his fellow inmates during their incarceration.

Indirectly, he also helped our corrections officers who are dedicated to ensuring that inmates can, in some cases, prepare to return to society. That is part of the role of a corrections officer. Two of my colleagues have penitentiaries in their ridings: the Port-Cartier penitentiary, in the riding of the member for Manicouagan, and the La Macaza penitentiary, in the riding of the member for Laurentides—Labelle.

We do not acknowledge our corrections officers often enough. I have read documents from corrections officers who felt as though they were in prison themselves. These are difficult working conditions. There is constant stress. They have to watch over people who have nothing left to lose, people who were convicted of multiple murders. All they have left is to make the lives of everyone inside those walls miserable. I would like to take this opportunity to salute our corrections officers, those who work in both in federal and Quebec prisons.

I would like to share what the Association québécoise des avocats de la défense told us. As the members know, I am a lawyer. I practised for only a year and a half, and I do not consider myself a leading expert in law. One of my friends, Jean Asselin, from Quebec City, is a member of the Association québécoise des avocats de la défense. The legal community is quite discouraged about the attitude of this Conservative government, which is missing the mark and aiming in the wrong direction. The Association québécoise des avocats de la défense said it believes that this bill is merely part of an election strategy and that it promises greater public safety under false pretenses.

On the other hand, although we understand the reactions of certain victims' families who agree with the bill, the fact remains that our decision as to whether or not this bill should pass must be analyzed in an impartial context that is not swayed by emotions.

The Canadian Bar Association opposes Bill C-36 because it believes that the faint hope clause is important in the overall sentencing process, especially for sentencing in murder cases.

I would say that with their separate bills the Conservatives have adopted a cafeteria approach. It is like saying I will have soup today, I will have salad tomorrow. I will have dessert today, I will have fruit salad tomorrow. It is a piecemeal approach that is missing the mark, as I was saying earlier. We have to look at the penal system and the Criminal Code as a whole.

At present the Conservatives' only goal is to find bills that address certain events or circumstances, mostly the ones that have been in the media, and then to take action aimed at being elected.

I will repeat: when you do not agree with them, when you have a different opinion, you are immediately identified as someone who supports criminals, just the way they said we supported the Taliban. Unbelievable.

In closing, because I see that my time is running out and I wish to have some left to answer questions, we believe that the Bloc Québécois is on the right track and, in that sense, we agree with the NDP position. I hope that our Liberal colleagues will listen to reason and not be influenced by the siren songs and the advocates of those opposite, on the Conservative side. I believe that the Liberal party has a progressive and forward-thinking tradition, as its name implies.

I am asking my Liberal colleagues to vote with the Bloc Québécois and the NDP to prevent this pointless bill from succeeding at third reading.

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

Madam Speaker, the member opposite talked about victims and queried rhetorically how Bill C-36 would help victims.

Members will undoubtedly know that individuals who apply under the faint hope clause have been convicted of a crime that carries a sentence of life imprisonment. Typically, we are talking about people who have been convicted of murder and, therefore, their victims, sadly, cannot speak for themselves, but their families can.

I sit on the justice committee and we heard from many families of victims who were all in favour of this legislation because they believe they were revictimized.

There is a principle in criminal law that an accused cannot face double jeopardy but the families tell us that they face double and sometimes triple jeopardy when they are faced with serial applications for faint hope when the families must go back and relive the horror of the loved one who was taken from them.

My question for the member has to do with his comment regarding the long gun registry. He seemed to suggest that this government was not serious when we said that we would be tough on crime because we voted in principle at second reading to repeal the long gun registry. He seems to have some concern with that.

Does the member really believe that long guns, shotguns and .22s are used in the commission of crimes?