Bill S-6 (Historical)

An Act to amend the Criminal Code and another Act

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. It also amends the International Transfer of Offenders Act.

Criminal Code

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I do not think that could have been the case because I have been told that multiple murderers are excluded from the faint hope provision. It is my understanding that it could never have been the case that Clifford Olson applied under the faint hope provision. However, the member still makes a good point.

Every member of this House, including members of the New Democratic Party, I argue most of all, are truly concerned about victims of crime and about the impact that any exposure to the criminal justice system has on them. Victims of crime do not choose to be the victims and, in many cases, they are the people who have suffered the harm. They are an important voice in the criminal justice system and we need to pay attention to their needs.

I would like to see legislation in which victims are given a greater voice in the justice system. I would like to see legislation that expands the concept of restorative justice, where healing becomes a better part of our system and where victims can sit face to face with their offenders. when that is appropriate and where they want to, where we can actually hear the pain of the victims. Of course, in any kind of process, it is important that we understand that victims will be sometimes traumatized by the process again and again.

In the case of the faint hope clause, if an application for early parole were dismissed for a lack of reasonable prospect of success, under the current system the chief justice or a judge may set a time for another application not earlier than two years after the dismissal. In fact, the judge may declare that the inmate will never be entitled to make another application.

The law already recognizes that victims should not be traumatized by repeat application and there are provisions in the law to deal with that. I think the member's very well-founded concern is more than adequately met by the law as it presently stands.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I have two questions for the member.

First, what are some of the potential problems that could occur if this were removed? I am thinking of people in the jail system, in particular, by someone who has lost hope completely?

Second, could he just remind the House of the low recidivism or offence rate of those who have been released under these provisions?

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, I will deal with the recidivism rates first. I do not have the number right in front of me but I have seen figures that show that the recidivism rate for those who have been released under the faint hope provision are very low. In fact, I think it is two cases if my memory serves correctly and, in both cases, I think one person committed an assault. I am not sure what the other person committed but I do not believe it was a murder.

The application process that someone in a federal institution must go through to access the faint hope provisions is extremely layered and controlled. It has to pass a lot of sets of eyes before a person can even be considered for early release.

This is because the law recognizes that people change. People who commit murder when they are 17, 18, or 19 years old may be totally different when they are 31 or 32. To simply have a law that allows them the possibility of at least making an application before a judge and a jury and then a national parole board, go through all those sets of eyes and minds with data from their doctors, psychologists, social workers and from prison administrators so we get a full picture of that person, is something that benefits our society. It is the hallmark of any civilized society as well. We do not lock up people in dungeons and throw away the key, as is done in some countries. I think that is something that we as a society have to deal with.

Dealing with prison and crime is not a pleasant affair. Prisons are extremely complicated places. I have been in 25 of them, as I said. They are places of pathos, sadness and destruction. They are places of depression and unhappiness but they can also be places of redemption, growth and hope. We as a society need to decide what we want our prisons to be. I as a Canadian want my prisons to be a place where there is the possibility of growth and redemption. The government and this legislation would take that away. I think it is bad legislation and every thinking parliamentarian should vote against it for that reason.

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

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

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

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

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

At the outset, this legislation, which eliminates the possibility of revision to parole for people who have committed murder or who are sentenced to life for high treason, is completely wrong. I am opposed to the basic principle of the legislation that claims we are not well served by this process of judicial review, in fact of citizen review, and that the faint hope clause should not be part of our criminal justice system.

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

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

The current legislation and section 745.6 of the Criminal Code, which deals with judicial review, enables offenders serving life in prison with parole ineligibility periods of more than 15 years to apply for a reduction of that period. The review is not intended as a forum for retrial of the original offence. The focus is instead on the progress of the offender after having served at least 15 years of his or her sentence. That is how the Department of Justice describes the current process on its website. It is how it describes the intent of the current legislation.

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

The first stage is an application to the chief justice of the province in which the person was convicted. The chief justice or a designated superior court judge reviews the written materials presented from the Crown and the applicant. Then that judge determines on the basis of the written materials whether the applicant has shown on a balance of probabilities that there is a reasonable prospect that the application will succeed. If the judge decides that, a jury is impanelled to hear the case. If the judge decides there is no reason to proceed further, the appeal process stops at this point and there is no further follow-up. The judge, the Crown, the applicant all have a key role in this first stage.

The next stage is the jury. When the jury is constituted and impanelled, it then considers a number of issues when it looks at the application from the person in prison. When determining whether there should be a reduction of parole ineligibility, the jury determines the character of the applicant, his or her conduct while serving the sentence, the nature of the offence, information provided by the victim's family members about how the crime has affected them and any other matters the judge has considered relevant in the circumstances. The jury looks at a very broad scope at this point.

This is a panel of 12 citizens and the panel considers those factors and makes a decision about the reduction of the period of ineligibility. The decision of that jury to reduce the ineligibility period must be unanimous. We are not talking about a simple majority or anything like that. The jury can reduce the parole ineligibility period immediately, or at a later date or deny any reduction.

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

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

When the jury decides unanimously that the number of years to be served should be reduced, it can then decide by a two-thirds majority the number of years that must be served before the inmate can apply to the National Parole Board. If the jury decides that the period of parole ineligibility is not to be reduced, it can set another time at which the prisoner can again apply for judicial review. If no date is set, then the prisoner can reapply after two years for this process to be engaged again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I have three quick questions. I certainly appreciate the member's thoughtful approach to this bill.

In the member's very last sentence, he said that he does not think it makes communities any safer. If in fact there were so few reoccurrences without this bill, maybe he could elaborate a bit on the types of the crimes that actually would be committed by the many people who lost hope or who have actually gone on to lead productive lives.

The second way we could see fewer victims is if the money saved by the huge costs of incarceration were used on more police or machines in hospitals. There are all sorts of ways more lives could be saved with the money that is saved.

Finally, could the member comment on the fact that the government would save a lot more people from becoming victims if it were to reinstate the crime prevention programs it has cancelled?

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

Mr. Speaker, I think there are many ways to make our communities safer.

We have seen clearly, time and time again, that crime prevention programs actually work, better education programs work, more opportunities for citizens work, and better jobs work. There are all kinds of things that make our communities safer that have nothing to do with keeping people in jail longer or putting people in prison longer.

We have seen that rehabilitation programs in prison work, but we do not often give them the kind of importance they need. We have seen that treating people for drug addiction often makes our communities dramatically safer, and yet we do not put nearly enough resources into that.

Instead the government thinks that it can be tough on crime and put more people in jail for longer, and somehow that makes us safer. Even the Americans who were the champions of that kind of policy are turning their back on it. Some of the most outspoken proponents of it are turning their backs on it, because it just does not work.

There is proof, time and time again. There is research, time and time again. Unfortunately, that does not make an impression on the current government.

Those kinds of things are really important to all of us. The cost of incarcerating people could be used in so many other ways that would actually make our communities safer. We could engage citizens in other ways to make our communities safer. Restorative justice that engages people, victims of crime, people who have committed crime, representatives of the community from the get-go is a way of making our communities much safer. The government has no interest in that kind of program.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I appreciated the speech from the member for Burnaby—Douglas.

Would the member comment on Newt Gingrich and Pat Nolan, two Republicans from the United States who, in their article, talk about what happened in Texas where it was decided against building more prisons and opted to enhance proven community corrections approaches, such as drug courts. Money was redirected into community treatment for mentally ill and low level drug addicts.

Not only have these reforms reduced Texas prison populations, but for the first time there is no waiting list for drug treatment in the state and crime has dropped 10% from 2004 through 2009, reaching its lowest annual rate since 1973.

Since even Republicans now understand the good merits of the NDP approach of being smart on crime, I would like to ask the member for Burnaby—Douglas why do the Conservatives not get it?

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

Mr. Speaker, if I had been told that I would standing in the House supporting an opinion offered by Newt Gingrich, the Republican to end all Republicans in some of our minds, and Pat Nolan, the Republican leader of the California State Assembly from 1984 to 1988, I would not have believed it.

I would not have believed that it would possible that Mr. Gingrich and Mr. Nolan would release the kind of statement that they have recently that says that they were wrong, that the approach that they championed, to build more prisons, to give tougher sentences, to put people in jail longer, the “three strikes and you're out”, which I am sure Mr. Nolan was around for, that hideous attempt at justice reform. All of those things have only served to make communities poorer and more unsafe.

Here they are, turning their back and calling for the kinds of smart on crime measures the New Democrats have championed for years, generations in fact. It is really hard to believe that I could stand here and be on the same page as Newt Gingrich. My colleagues say that he has come to our page, and that is great. He has seen the light.

It just goes to show that even the strangest people can be rehabilitated in their views of society, and that I am open to that possibility. I look forward to the possibility of somebody actually struggling with the numbers, the research and the experience of this kind of legislation, and then examining it carefully.

Mr. Gingrich deserves some kudos for taking the risk. This is a huge political risk for a Republican in the United States, to write this kind of statement and to re-examine something that he championed so vociferously. I think that is a very—

[The Deputy Speaker, Andrew Scheer]

Order, please.