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 Calandra, Conservative, Oak Ridges—Markham, ON]

I thank my colleagues, Mr. Speaker.

In 1999 the Criminal Code was amended again in response to the concerns set out in the report of the Common's Standing Committee on Justice and Human Rights entitled “Victims' Rights--A Voice, Not a Veto”.

As a result, under Section 745.01 a judge sentencing someone convicted of first- or second-degree murder or high treason must declare, for the record and for the benefit of the surviving victims or their representatives, the existence and nature of the faint hope regime.

Given the controversial history of the faint hope regime, the rationale for Bill C-36 is very simple. Allowing convicted murderers a chance, even a faint chance, of getting early parole flies in the face of truth in sentencing. With its alternate title, this bill indicates that truth in sentencing means that those who commit the most serious of crimes must do the most serious time.

This is what the proposals in Bill C-36 aim to do. They aim to restore truth in sentencing for murderers and to protect society by keeping potentially violent offenders in prison for longer periods of time.

I am pleased to note that Bill C-36 would fulfill a long-standing commitment of the government to repeal the faint hope regime for future offenders and to tighten up the current application procedure in the interests of families and loved ones of murder victims.

Bill C-36 would bar all those who commit murder or high treason after the legislation comes into effect from applying for faint hope. In effect, the faint hope regime will be repealed for all those who commit murder in the future.

Bill C-36 would also toughen further application processes for those already sentenced as lifers with the right to apply for faint hope by setting a higher judicial screening test. From now on, a judge will have to be satisfied that there is a substantial likelihood that a jury will unanimously agree to reduce an applicant's parole ineligibility period. Moving from a reasonable prospect to a substantial likelihood will likely screen out the most undeserving applications.

There are also longer waiting periods for reapplication in the event of an unsuccessful initial faint hope application, a minimum five years instead of the present two.

Most important, Bill C-36 would impose a new three-month time limit for an offender to apply or reapply under the faint hope regime. The three-month time limit would apply in the following situations.

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

Second, it would apply to those offenders who are now serving a sentence but who have not yet reached the 15-year mark. For example, they may have served four years, eight years, or ten years when this bill passes. At exactly the 15-year point in their sentence, all of these murderers will have three months within which to bring an application.

There is also a new five-year waiting period during which an offender may not apply at all if he or she does not apply to a judge within the three-month time limit.

These new longer time limits are explicitly designed to reduce the number of applications that someone may make, in order to spare the families and loved ones of their victims from having to rehash the details of the crime every time a particular applicant applies for faint hope.

In closing, Bill C-36 would eliminate the faint hope regime for all future murderers and would ensure that murderers now in prison would have a much tougher time accessing the regime.

None of these substantive aspects of Bill C-36 have been amended in any way by the standing committee. As I mentioned earlier, there are a few highly technical amendments that have no impact whatsoever on the substantive provisions that I have briefly described.

The reforms to the faint hope regime proposed in Bill C-36 will accomplish two worthwhile goals: first, they will allow us to meet the concerns of Canadians that murderers do the time they have been given and stay longer in prisons than they do now; and second and equally important, they will help ensure that families of loved ones and murder victims are not forced to rehear the details of these crimes every two years as they are sometimes required to do under the current regime.

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

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Mr. Speaker, I am pleased to speak to Bill C-36 now that it has been reported back to this House by the Standing Committee on Justice and Human Rights.

Bill C-36, the serious time for the most serious crime bill, will amend the Criminal Code to repeal the so-called faint hope regime for all those who commit murder after the legislation comes into force. Importantly, it will also toughen the procedural requirements to make a faint hope application for the approximately 1,000 already convicted murderers now serving life sentences in Canada's prisons who presently have the right to apply for faint hope, or who will have the right to do so after serving 15 years.

I am pleased to note that after hearing from several witnesses, the standing committee reported Bill C-36 back to the House with but a few technical amendments that will better harmonize the English and French versions of the bill.

Allow me to recap the nature of the substantive Criminal Code amendments contained in Bill C-36 for the benefit of hon. members.

As most hon. members are aware, high treason and first and second degree murder are all punishable by life imprisonment with the right to apply for parole after a stipulated period of time. Section 745 of the Criminal Code stipulates that the earliest possible parole eligibility date for those convicted of first degree murder and high treason is 25 years. It is also 25 years for second degree murder, where the murderer has been convicted of a prior first or second degree murder, or of an intentional killing under the Crimes Against Humanity and War Crimes Act. Otherwise, the parole ineligibility period for second degree murder is automatically 10 years and can be up to 25 years as determined by the judge under section 745.4 of the Criminal Code.

Serving up to 25 years in prison without being eligible for parole is obviously a very long time and it is deliberately so, for murder and high treason are two of the most serious crimes in Canada's Criminal Code. Nonetheless, the faint hope regime provides a mechanism for offenders to have their parole ineligibility period reduced so that they serve less time in prison before applying to the National Parole Board for parole.

The current faint hope process is set out in section 745.6 and related provisions, and has three stages.

First, an offender must convince a judge from the jurisdiction in which he or she was convicted that the application has a reasonable prospect of success. The courts have already told us that this is not much of a hurdle and almost all applications are eligible to go to the next stage.

Second, if the judge is convinced, the applicant can bring the application to a jury of 12 ordinary Canadians, whose role is to decide whether to reduce the applicant's parole ineligibility period. This decision must be a unanimous one.

Third, if the applicant is successful with the jury, he or she may apply directly to the National Parole Board. At that point, the applicant will have to convince the board that, among other things, his or her release will not pose a danger to society.

The faint hope regime has been around since 1976 when capital punishment was abolished. The data indicate that between 1976 and the spring of this year, there have been a total of 265 faint hope applications. That is an average of eight applications a year. Of the 265 applicants, 140 obtained reductions in their parole ineligibility periods. Thus, 103 applicants with 25 year ineligibility periods obtained reductions of 1 to 10 years, and 37 applicants whose ineligibility periods ranged from 15 to 24 years obtained reductions of 1 to 5 years.

Ultimately, the National Parole Board granted parole to 127 applicants. In short, nearly half of the 265 faint hope applicants were ultimately granted parole before the expiry of the parole ineligibility period imposed on them at the time of sentencing.

The existence of the faint hope regime and high success rate of applicants has led to a great deal of public concern, particularly among victims' advocate groups. This has in turn led to a series of amendments to restrict access to the faint hope regime and to make better arrangements for the needs of the families and the loved ones of murder victims.

Thus, government amendments to the faint hope regime in 1995, which came into force in January 1997, toughen the application procedure, first, by entirely barring multiple murderers from applying if one of the murders occurred after the coming into force date of the legislation; second, by requiring a judge to conduct the review already mentioned whereby the applicant must show a reasonable prospect of success before the applicant may go to the jury; and third, by setting the high standard of jury unanimity that I have already mentioned before the applicant's parole and eligibility period may be reduced.

I wonder if I might ask for unanimous consent to share my time with the member for Oakville. I neglected to do that at the beginning of my speech.

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

The House proceeded to the consideration of Bill C-36, An Act to amend the Criminal Code, as reported (with amendments) from the committee.

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, today we will continue with Bill C-57, Canada-Jordan Free Trade Act.

If we were to complete that, I would intend to call Bill C-23, Canada-Colombia Free Trade Agreement Implementation Act. I would point out to my colleagues that this bill has already received more than 30 hours of debate in the House and yet the NDP and the Bloc continue to delay the proceedings and hold up this agreement that would create new business opportunities for Canadians from coast to coast.

As I indicated this morning, tomorrow will be an allotted day.

Next week we will once again focus on our justice agenda beginning with the report and third reading stage of Bill C-36, An Act to amend the Criminal Code followed by 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. Then we will have Bill C-54, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act; Bill C-55, An Act to amend the Criminal Code, the response to the Supreme Court of Canada Decision in R. v. Shoker act; Bill C-19, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions); Bill C-53, Protecting Canadians by Ending Early Release for Criminals Act and finally, Bill C-35, Justice for Victims of Terrorism Act. All of these bills are at second reading.

On the issue of a NAFO debate, I would remind the hon. House leader for the Liberal Party that is what opposition days are for.

Justice and Human Rights

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Speaker, I have the honour to present, in both official languages, the 13th report of the Standing Committee on Justice and Human Rights.

In accordance with the order of reference of Thursday, June 18, the committee has considered Bill C-36, An Act to amend the Criminal Code, and agreed on Monday, November 16, to report it with amendment.

[The Chair, Conservative, Ed Fast]

I'll reconvene the meeting.

We move now to clause-by-clause on Bill C-36, An Act to amend the Criminal Code.

Also, we want to welcome back John Giokas and Catherine Kane, who are with the criminal policy section of the Department of Justice. Welcome back to both of you.

You have before you four government amendments. I trust you've had an opportunity to review them. It's my understanding that all of the amendments were circulated to you by e-mail.

Pursuant to standing order 75(1), consideration of clause 1 is postponed.

(On clause 2)

I understand the government has an amendment on clause 2. Mr. Moore, would you like to present the amendment and explain it.

[Rick Sauvé, As an Individual]

Thank you. I'm pleased to have this opportunity to speak today, but without the faint hope clause, I wouldn't have been able to be here.

In preparation for coming today, I was talking to my grandson this morning, and he asked me what Bill C-36 was about. He asked me to explain it to him in terms he might understand. He's 12 years old and very bright. I've never hidden from him the fact that I'm serving a life sentence. I'm still serving a life sentence, but I'm now in the community.

I explained to him that one of the pillars of our justice system is the jury process. I explained that when I was convicted of first-degree murder and sentenced to parole ineligibility for 25 years, after 15 years I could make application to go back to my community--the community where I was arrested and where the crime had taken place. It was up to the people from my community, 12 men and women, after hearing about the nature of the offence, how I served my time in prison, and my character, to make a decision on whether I would be considered to apply for parole and come back to their community. After a week of trial about my character and what I had been doing in prison for the past almost 16 years—and it wasn't at the 15-year mark that I got to go to court—after all that period of time in prison and after hearing from witnesses who testified about my character, would they feel comfortable with my applying for parole to come back to that community? They voted yes.

When I explained that to him, I said that one of the things we often hear is that the community has an interest about who's going to be coming back into their community. They want to feel a part of that process. They want to know who it is who's going to be their neighbour. When I explained that to him, he said that it made sense to him and asked, “Why would we change that?”

I could talk about looking at it from a correctional perspective, that it gives hope, and it's a good correctional tool for Corrections to assist people in the rehabilitation process. But I think fundamentally, for me, it was about talking to people from my community and letting them know that I am somebody they can be aware of and that they were a part of that decision-making process. I feel it would be unfortunate if that was removed from them.

Thank you.

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting 47 of the Standing Committee on Justice and Human Rights. Today is Monday, November 16, 2009.

You have before you the agenda for today. We are finalizing our review of Bill C-36. We have one final witness, Mr. Rick Sauvé. After the witness has testified and we've asked some questions, we'll then move to clause-by-clause.

Welcome, Mr. Sauvé. You've been told what the process is. You have 10 minutes to make an opening presentation and then we'll open the floor to the members for questions.

Please proceed.

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

We then move to the witness Mr. Comartin suggested and this committee voted to hear from. If there's time, then we move to clause-by-clause on Bill C-36. If not, it becomes the first order of business on Wednesday, the 18th.

[The Chair, Conservative, Ed Fast]

We also have the minister coming on the 16th on Bill C-52, and my guess is it's going to take some time. We have at least four, if not five, amendments, government amendments on Bill C-36. So for me to add him, I'm going to need specific direction from the committee.

[The Chair, Conservative, Ed Fast]

We're out of time. That's five minutes. Monsieur Lemay, you've gone over five minutes.

Before we adjourn, I need to have some direction from the committee. Mr. Comartin has come up with a request for one more witness on Bill C-36, whom he wants to have come--

[Prof. Allan Manson, Professor, Queen's University, Faculty of Law, As an Individual]

Thank you.

Good afternoon. I regret to say that I am not bilingual. I will therefore have to present my ideas and give my answers in English only.

I am here because I'm very concerned about this bill. It will place our sentencing regime, aside from those of countries that still execute people, among the harshest in the world and certainly in the western world. When I look at the minutes of the testimony, which I've read, particularly the testimony of the minister and those supporting the bill, I see no basis and no evidence for these amendments.

I see constant remarks saying, “This is what Canadians want.” I also see remarks about victims. I'm very respectful and sympathetic to victims, and I'll address that in a second, but I dispute the statement that this is what Canadians want. Just because you repeat something over and over doesn't make it true.

It's my view that if we look at the history of criminal law in Canada, the history of murder sentencing and what this Parliament did in 1975-76, what it did in 1997, and what this committee did in 1975-76, I would say Canadians respect the vitality of the human spirit. This legislation does not. This legislation wants to turn penitentiaries into ashcans of human wreckage.

I have studied this 15-year review process. I've written about it. I've been counsel in two cases and advised a number of lawyers, so I can talk to you if you have questions about how these processes work.

You've heard a lot of data. I'm not going to go through much of that again. I did prepare a submission. I had only a few days' notice about this hearing; I hope it's been translated. I'm not sure if it has, but you will have it.

The key is this. This process was created in this committee on a motion by a member named Stuart Leggatt in the spring of 1976. The original proposal for the 15-year review arose like this: the Solicitor General, who was Warren Allmand at the time, had his people do studies of Canada's experience as well as the international experience with the release of murderers. The data suggested around 10 to 15 years as the effective minimum ineligibility period.

Of course, if capital punishment was abolished, there would be a mandatory life imprisonment sentence. We're only talking about parole eligibility. The Canadian Association of Police Chiefs had taken the position that they supported retention, but if capital punishment was going to be abolished, they felt the minimum should be 25 years. It was in Warren Allmand's office that they came up with the idea of adopting 25 years while creating a window after 15 years. They took the view that the decision should be made by three judges.

It was in this committee that Stuart Leggatt said, “I was a practising lawyer; I trust juries.” This committee amended the bill to give the decision-making role to juries. These are Canadians, and if you look at the statistics from every province, while sometimes you see a number saying that 83% succeed, that's completely disingenuous and misleading, because in fact fewer than 19% of eligible prisoners apply. There is a process of self-selection.

I haven't done it for the past few years, and I regret that, but I used to travel to lifers' groups in the various penitentiaries around Kingston to explain this provision to prisoners. Afterward I would always talk to people about their individual cases. There is a process of self-selection. There are people who want their cases to remain quiet. They don't want to see them on the front pages of newspapers. There are people who have seen the rigours of these applications; there are people who are worried that an unsuccessful application may prejudice a future parole hearing. There are also people who just know they've not made much progress, and they're bad cases. That's why you see fewer than 19% applying.

At the end of the day, my calculations say 15.2% of eligible prisoners have received some relief. When I say “some” relief, I mean they're not made immediately eligible. A few are, but I've seen cases of people being made eligible when they served 17, 18, 19 years. The jury determines what the reduction will be.

In 1997 the provisions were amended to require a unanimous jury for reduction, but the actual reduction is left to eight out of the 12. It can be 19 or 20 years. They can set the time to whatever they want.

My point is this: is there a basis for this very harsh move? Ms. Jennings isn't here, but when I read the proceedings of the meeting on October 19, I noticed that she engaged in a debate with the minister about constitutionality. However, they were only talking about retroactivity, and on that point of debate the minister was right. He didn't cite it, but the case is R. v. Gamble. People in Canada are entitled to be sentenced, which includes having their parole eligibility determined, by the law as it stands at the time of the offence. But that's not the issue. The issue is the constitutionality of a murder regime set at a minimum of 25 years.

You'll see on page 3 of my submission that in 1990, when our Supreme Court constitutionalized the 25-year parole ineligibility in the Luxton case, it did so taking into account as part of its decision-making matrix the 15-year window and that possibility. If you remove that, the whole question of constitutionality is back on the table. As well, in that case there was no evidence about the deleterious effects of long-term confinement, either in general or on particular people or on groups of people. Next time there will be evidence.

So this is a bill that is constitutionally vulnerable, yet the minister comes here and tells you, “No, no, no”. I don't know that he even considered this issue. You certainly can't see it from the minutes.

Let me say a word about victims.

I accept that some of the families that have survived murder would support this legislation. It certainly wasn't the case when I was a practising lawyer, but now victims do participate, if they choose, in the criminal process. They can participate at every level of the 15-year process if they choose. We've recognized that providing these participatory opportunities to victims is an important and valuable aspect of the criminal justice system. One must respect and have sympathy for the tragic losses and grief that victims have suffered.

Yet we all experience grief in different ways, don't we? There will be myriad responses. While one needs to listen to the voice of victims, sound penal policy must be based on a set of values grounded in an experienced and reasoned judgment. It was over 900 years ago that we took penal policy out of the hands of victims. In this country it's now in the hands of parliamentarians. We expect them to have a full debate, ask hard questions, and produce rational, fair penal policy based on evidence, not emotion.

I have addressed in my submission what I call the procedural aspects of Bill C-36: the 90-day window, the five-year delay. Those would relate to those people currently in jail who have the opportunity of the 15-year review. Again, there's no evidence as to why these are necessary; it's pure harshness for harshness' sake.

The 90-day window is completely unrealistic as well. There will be mountains of files that lawyers need to go through. Plus, I don't know if anyone's ever told you this, but when prisoners are eligible for 15-year review, the juries are picked in the place where the offence was committed. Not many prisoners....

I waited. I would appreciate it if you wait as well. Thank you.

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

Mr. Chairman, with all due respect, I have the agenda in front of me and I would like the Committee to follow that agenda—in other words, that we proceed with clause-by-clause consideration of Bill C-232, and then hear from the witnesses that are here representing the Correctional Service of Canada. If there is any time remaining, we can begin clause-by-clause consideration of Bill C-36. Further to my request, if we don't have enough time, we will be back here on November 16, and we can proceed based on the established order. We should not be trying to rush through things in the next few days.

[The Chair, Conservative, Ed Fast]

There is one proviso. I think you suggested that clause-by-clause on Bill C-36 would start on November 4 if there was time. The actual amendment that you suggested says it will start on November 4, but if it's not completed it continues on November 16, when it will be completed. Am I correct?