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

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

moved that the bill be read the third time and passed.

[The Acting Speaker, Barry Devolin]

The hon. member for Edmonton--Strathcona on a point of order.

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 Acting Speaker, Barry Devolin]

When we left this matter earlier today, the member for St. John's East had completed his speech, but there remain five minutes for questions and comments.

The hon. member for Mississauga South.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, my question for the member has to do with information that would come out in discussions we have had on the bill, the faint hope clause, for some time. It has to do with the statistical occurrence of these serious crimes by family members against family members and friends against friends. Most Canadians would agree these would not be characterized as severe criminals, but rather some other characterization where they would not be a dangerous offender, for instance.

Does the member have any information on the latest statistics with regard to the incidence of crimes of people who know each other very well.

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

Mr. Speaker, I do not know the actual statistics. I do not have them before me, but I know that the vast majority of murders are committed by someone who knows the person who is the victim of the crime. I suppose that begs the question as to whether the intention on the other side, in removing the faint hope clause, is to extract a supreme punishment so the average penalty for someone who is given a life sentence raises beyond 28.4 years imprisonment than it does now, or whether the government is really worried about the protection of society.

I believe it is commonly known by criminologists and others that the type of crimes that the hon. member speaks of are not normally crimes which may be repeated and that the opportunity for rehabilitation is probably greater. The protection of society can be achieved with a faint hope clause where it can be demonstrated and a jury unanimously agrees that the person can apply for parole. Then the Parole Board can determine whether it believes the person is a threat to society and make the decision.

I believe the information the hon. member speaks of is actually helpful to the idea of retaining the faint hope clause.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I rise today to speak to Bill C-36, An Act to amend the Criminal Code, serious time for the most serious crime act. This amends provisions with regard to the rights of persons convicted of murder or high treason to be eligible to apply for early parole.

This is done by the elimination of the so-called faint hope clause. It is a clause by which those who are given a life sentence for murder or high treason can apply for parole after having served 15 years of their sentences.

This section of the Criminal Code is known colloquially as the faint hope clause because it provides offenders with the possibility of obtaining parole after serving 15 years of a sentence for murder where the sentence was life without eligibility for parole after more than 15 years.

Offenders convicted of first degree murder serve life as a minimum sentence, with their first parole eligibility set by law at 25 years. For offenders convicted of second degree murder, a mandatory sentence of life imprisonment is also imposed, but the judge can set the parole eligibility point anywhere between 10 and 25 years. Those who are serving a life sentence can be released from prison if parole is granted by the National Parole Board.

If inmates are granted parole, they will, for the rest of their lives, remain subject to the conditions of parole and the supervision of a Correctional Service Canada parole officer. Parole can be revoked and offenders returned to prison at any time. This does not allow them to get out of jail free forever. They can be returned to prison at any time if they violate any of the conditions of parole or if they commit a new offence. Not all “lifers”, people who are in jail for life, will be granted parole. Some may actually never be released on parole because they continue to pose a risk of reoffending.

I rise today because I am against getting rid of the faint hope clause. I am against it because it really is faint hope. Not very many prisoners actually access this clause. Further, it is very much an incentive for inmates to behave, to ensure corrections workers are safe and to promote good behaviour in the prison system because there is the faint hope of release.

The Association Québecoise des Avocats et Avocates de la Défense appeared in committee and put forward an excellent submission about the actual impacts and implications of abolishing the faint hope clause. It asked a great question in committee. Why get rid of a measure that is likely to encourage individuals who have committed a serious crime to be rehabilitated? Why would we get rid of something that would encourage them to be rehabilitated and become active members of society?

Further, with respect to the average time spent in custody by an offender given a life sentence for first degree murder, the average time served in Canada is greater than in all the other countries that the association surveyed, including the United States. The average time spent in custody is 12 years in Sweden and 14.4 years in England. Guess what it is in Canada? It is 28.4 years in Canada. Canada's offenders are serving sentences beyond the 25 year mark.

In 1976 a bill was introduced to allow for a review of the period of ineligibility after 15 years. This was in the submission of this group, which quoted Jim Fleming, who was the parliamentary secretary to the minister of communications at the time. He was quoted as saying the provision was “a very important glimmer of hope if some incentive is to be left when such a terrible penalty is imposed on the most serious of all criminals”. It still resonates today.

In 1998 there was the Ontario Supreme Court decision in Vaillancourt in which Associate Chief Justice Callaghan held that the review process needed to strike a balance between considerations of leniency for the well behaved convict in service of his sentence and it may serve to assist in his rehabilitation and the community interest in repudiation and deterrence of the conduct that led to his incarceration.

The numbers of people who are accessing the faint hope clause are not what the government would have us believe. We do not have murderers lining up at the door and suddenly accessing this provision and getting out of jail without serving time. It is just not the case, although the government would have us believe it is the case. What it is trying to do is scare us into passing these crime and punishment laws that actually do not impact and affect very many people, numbers wise, but they can have a tremendous impact on those people.

In the first faint hope group of hearings in 1987 to 2000, only 21% of eligible offenders even applied for a hearing. Over those 13 years, 84 cases were successful in having some reduction in parole ineligibility, an average of 6 a year. Therefore we are looking at very small numbers.

In the same 13 year period, the parole of only 4 offenders was revoked for an alleged new offence. They were armed robbery, drug offences and two less serious drug offences, but parole can be revoked for any reoffence.

The four amendments in 1997 significantly curtailed the availability of section 745.6. The Canadian Bar Association noted how few people this impacted and said that of the 63 completed applications prior to 1995, 13 were rejected, 19 were allowed to go to apply, 27 were allowed to go to the board only after 16 to 20 years in prison and only 3 could go on to the board after 21 to 23 years were served. Six prisoners whose applications to the jury were successful were ultimately denied release by the Parole Board.

Therefore, it is important to remember that we have people who are not even self-selecting, not even saying they will make that application. Even those who are allowed to make the application and those who then go on and are granted early release, and the numbers are getting smaller and smaller, are subject to a lifetime of supervision and may be re-institutionalized for any transgression. It is also notable that of those who have been allowed early release to date, only one has reoffended by committing an armed robbery.

The numbers are so low, but the results are staggering because this means the possibility of rehabilitation. I would note that this has possible implications for taxpayers. After serving over 15 years in prison, it has the possibility to save taxpayers tens of thousands of dollars in taxes each year if the board is satisfied that this person is rehabilitated.

I noted earlier that the Canadian Bar Association appeared before committee. That association is a national association and it represents over 37,000 jurists, including lawyers, notaries, law teachers and students across Canada. Its primary objectives include improvement in the law and the administration of justice. It takes prosecutors, defence lawyers and legal academics from every province and territory. It is seeking to improve the law and improve the administration of justice.

The association has come out quite unequivocally against getting rid of the faint hope clause. I will read from the submission of the CBA. It was talking about what the government was doing. It is saying that the government communication on Bill C-36 suggests an increase in the number of offenders who are being released under this clause. The CBA says that this is far from the reality and it has the numbers to back it up.

It says that the government seems to imply that even one person having access to the National Parole Board before serving his or her full 25 years is too many. The CBA clearly states that it disagrees with that statement, and I disagree with it as well.

If we are going to consider any review or amendment of the Criminal Code, we must recognize that all reform needs to be fact based. It needs to include an appraisal of the present situation and a careful assessment of whether reforms will actually enhance the objectives of sentencing in the criminal justice system, not just what the polling numbers say.

Important questions need to be answered, such as what are we trying to accomplish. Are these reforms actually going to make our communities safer, and do we need this legislative change?

Let us consider some of these things.

I go back to the point of the faint hope clause. It operates fairly, effectively and efficiently. It really needs to be retained and should not be amended. It gives hope to people who are serving lengthy terms of imprisonment, which encourages rehabilitation. This results in safer conditions within prisons, and in the outside world as well, once a person has been rehabilitated.

Each time the National Parole Board decides that a prisoner can be safely and gradually released, again under supervision, after serving 15 years in prison, it saves taxpayers tens of thousands of dollars. This also provides a unique opportunity for community input into an integral and essential part of the sentencing process.

I mentioned doing things based on polling numbers. A lot of people do believe that the faint hope clause simply allows convicted murderers to be released after serving only 15 years of their sentences, but that is not the case, and it is time for us to set the record straight on that.

The Canadian Bar Association quoted Professor Allan Manson, who has noted that:

[those who] claim that parole eligibility review does not have public support seem to ignore the fact that a prisoner's application is determined by a jury who are usually members of the community where the offence was committed. Accordingly, the prisoner obtains relief only if the jury decides in his or her favour.

It is actually the community that is making the decisions about whether or not somebody is released. I cannot think of more broad-based public support than having a jury made up of one's peers in the community actually making these decisions.

The jury's verdict absolutely must be seen as a measure of public support for this process, particularly because the jury actually has to have a unanimous decision. It is not just a matter of a couple of folks saying, “Let us give this guy a break”, but the unanimous decision of a jury.

My colleagues from Mississauga South and St. John's East had an earlier conversation in the House about people who have been convicted of murders and who actually know their victims. That is very much the case. I do not have the statistic in front of me, but the overwhelming majority of convicted murderers know their victims. So when there is an opportunity for victims to give input to the jury, there are people there who know each other. Families are involved.

We have to think about what kind of input they would be giving to a jury and that sometimes there may be opportunities for a family or community to say, “We want you back. It is time for you. You have served and been rehabilitated, and we have an interest in your coming back to the community. We have a stake in your coming back to the community”. That is a very powerful consideration.

To recap, the faint hope clause serves a very important purpose in that it does provide faint hope. If someone who is convicted of murder or high treason works very hard at rehabilitation and is truly remorseful, he or she might be released on parole after serving 15 years, but before the full 25 years of incarceration are up.

It is a faint hope, because they actually need to satisfy their case management team, their psychologists, their psychiatrists, a judge, and a jury, that the application is even worth being considered by the National Parole Board.

Look at all of those steps. Ultimately, it is the National Parole Board that remains responsible for determining if the offender is worthy of early parole, but look at all of those people who need to be convinced first. It is an onerous process, as it should be, and it is not something to be taken lightly.

The faint hope clause does provide an incentive. We can say this over and over again, because it is incredibly important that there be an incentive for those serving a life sentence to behave well while in custody and to seek out rehabilitative programming.

I ask members, what would they do in that position? If they were in prison and knew there was absolutely no chance of being released, would they engage in rehabilitative programming? I do not know if I would.

This is a reason for them to work on their behaviour. This is a reason to get engaged with rehabilitative programming.

Moreover, let us not forget our brothers and sisters working in these prisons. The faint hope clause contributes to safer working conditions for prison guards and employees of the Correctional Service of Canada. Anything that we can do to make a safer environment for them, I think is something we should all get behind.

A purely punitive model is inconsistent with years of research and statistics that have founded our sentencing philosophy in Canada. We have not just come up with this and made it up; this is based on years of research to show what actually works when we are looking at sentencing philosophy and principles. We need sentencing principles that show that a safer society is achieved by emphasizing rehabilitative initiatives and adherence to human rights principles within penal institutions.

The Canadian Bar Association section recommends that Bill C-36 not be enacted. I actually will read directly from the bar's submission because the last paragraph of its submission completely sums up what we should all know about this clause. The association writes:

The “faint hope” clause does not jeopardize public safety, as shown by experience to date. The current limits on the availability of “faint hope” hearings provide ample impediments to undeserved or frivolous applications. There are few “faint hope” hearings. The number of murderers who offend at all, let alone violently, while on parole is extremely low. On the other hand, the “faint hope” clause serves important functions, in terms of fairness and rehabilitation for deserving offenders who have made significant changes over 15 or more years of incarceration.

I think the bar association's conclusion sums it up perfectly. We need to offer faint hope for all the reasons listed above. For safety in prisons, for behaviour, and if we want to throw in the taxpayer money angle of it, we need to support the faint hope clause and stand in opposition to this bill.

[Jim Abbott, Conservative, Parliamentary Secretary to the Minister of International Cooperation]

Mr. Speaker, I listened intently to the presentation by the NDP member. I noted she was talking about the fact that the system, as it currently exists, works fairly effectively and efficiently.

She also quoted extensively from the Canadian Bar Association, which has its own perspective on this bill.

I would like to give her an opportunity here on public television and in Hansard to speak directly to the victims, not the victims who have paid the ultimate sacrifice, unfortunately, but the parents, the friends, the family and neighbourhoods of those victims who are once again faced with the reality of what they were feeling 15, 20, or 25 years ago, and the immense loss they and their communities have suffered, when the faint hope hearing comes up. They again face the same tearing, the same shredding, of their emotions from the heinous crime that was perpetrated against a loved one in their family. I would like the member to relate her perspective to them on why this bill should not be repealed and why these people should not have an opportunity to avoid the kind of tearing that happens at these faint hope clause hearings.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, we certainly do not take lightly what happens to victims of serious crime. It is a tragedy. I wish the government would put more energy and effort into preventing crime rather that just cleaning up after the fact, waving flags and having press conferences.

I have experienced this within my own family. We have suffered violence at the hands of one family member against another. The first family member went to prison, as he should have. He served his time, and when he was released, we were the victimized family who said, “Now is the time”. We welcomed him back into our family and community with open arms. I would also point out that this was very serious, because he was the sole breadwinner for the family.

There are other considerations at play. The violence should not have happened, and nobody in my family thinks it should, but there are other considerations at play. For example, this person is a valued member of our community who has been rehabilitated, and he does need to move on and continue to give back to, and be a part of, the community.

Once again, I will bring up the process that we are looking at here. The victims of an offender's crime may provide information either orally or in writing to the jury. So we have the victims' input. Often, the victims are saying, “This is the time”. Moreover, the jury has to reach a unanimous decision.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Mr. Speaker, it is a very serious matter when the government proposes to make any changes to the Criminal Code. It is a very important law for the protection of citizens.

One thing I have noticed is that some members have mentioned heinous criminals, such by the Clifford Olsons of the world. It is very important for the record to clarify that the faint hope clause is not available to multiple murderers. Maybe the member could respond to this. We need to be clear about the existing constraints on this provision.

In her reply to the question from the hon. member across the floor, she also mentioned the need for more attention to be paid to the prevention of crime. I think it is also important to look at the contexts of these crimes. In many cases, they are crimes of passion within families and communities and involve, in many cases, people who have been abandoned, who are homeless, who are destitute and drug-ridden.

I wonder if she could speak to the issue of whether or not we are putting enough money into crystal meth treatment for youth, for example, so they do not get involved in serious crime and, ultimately, in murder and in going to prison.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, it is really about prevention. It really is about these bigger issues.

Look at who is in prison. It is first nations individuals and aboriginal Canadians. In my home province of Nova Scotia, African Nova Scotians are in prison, as are people with disabilities and mental health issues.

Does this mean that African Nova Scotians are bad people and all of them deserve to go to jail? No, of course not. What is the root cause here? We have to look at things like racism, poverty and treatment. My office is in the north end of Halifax, where there are lot of social problems. Two weeks ago during our break week, one of my constituents came in from the street. We know each other quite well. He was just out of jail for serious drug offences. He came in to say hi and to talk about it.

He is not a bad guy. He has an addiction issue, he committed a crime and he wants to be rehabilitated, but he cannot get into a treatment program. He cannot find a treatment program to help him deal with his issues.

I thank the member for her question. I think she is bang on.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, I listened to the arguments of the opposition to this bill and it all seems to be about the offender. Every last bit of it is about the poor offender who committed these terrible crimes like murder, and yet we are talking about releasing them early.

Not enough time is being spent in this debate on the victims. There are all kinds of people who have said something about the victims. There have been some comments made here in the House. One was made by Teresa McQuaig, whose grandson, Sylvain Leduc, was murdered on October 28, 2009.

I was at the parole hearing for Clifford Olson. For 25 years, he was applying for parole. Two years went by so quickly and it was time to go back again. I remember saying to Sharon Rosenfeldt, “My God, is it two years already? You are going to go through this hell all over again tomorrow”.

It is so hard on victims, it is not fair. Five years, I think, would be reasonable.

Is my colleague going to give any consideration at all to the families of the victims, not to the offender?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, this is ultimately about the victims. It is about the victims because it is about the individuals, it is about the families, and it is about the communities that will be safer when somebody has actually engaged in rehabilitation programs.

Imagine a world where someone who was released had no remorse, had not engaged in rehabilitation programs, and had not made any effort to reintegrate into society. Imagine people being released where society was still at risk. This is such a process. A jury needs to make a unanimous decision before an applicant goes to the Parole Board.

This is exactly about the victims. This is about keeping our communities safe. This is about helping people, giving them reason to actually engage in rehabilitation programs. This is about engaging with them and not just about signing on a dotted line. This is about our communities. This is about keeping people safe, whether it is the victim, the victim's family, or the community that the victim comes from.

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

Madam Speaker, countries in Europe, for example, Belgium and England, have a similar type of legislation with a faint hope clause. Could the member give us any examples of successes that have emanated out of those jurisdictions or any other jurisdictions around the world?

[Megan Leslie, NDP, Halifax, NS]

Madam Speaker, I actually do not have at my fingertips examples of other jurisdictions where this has worked. As the member very rightly points out, the faint hope clause is working in other jurisdictions.

I come back to the submission of the Canadian Bar Association which said that any time we are going to look at the Criminal Code, any time we are going to make amendments or reform the Criminal Code, we need to base it on solid evidence. We need to base it on research. We need to base it on what we know to be true when it comes to sentencing and dealing with crime, and not base it on emotion. That was a great line in the CBAs submission at committee. We should not be basing this on emotion. We should be basing it on what we know works.