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.

[Susan O'Sullivan]

I have.

Mr. Chairman, ladies and gentlemen, thank you for giving me the opportunity to appear before you today to discuss Bill S-6 and the faint hope clause. I have become aware of the statements made by various important witnesses who appeared before the committee and dealt with the issue from numerous different angles.

It is clear that the issue is not simple and that a vast array of valid arguments for or against the clause can be provided. However, I am not here to analyze these arguments. I am here as Federal Ombudsman for Victims of Crime, to play the role which is our raison d'être: to give a voice to victims.

I am going to share with you what victims say in order that you be able to take this into account in your deliberations.

I have had the chance recently to talk to some victims and victim advocacy groups about the issue. Unfortunately, I have not conducted exhaustive consultations at this stage, as time did not permit. As such, the information I am presenting here represents those groups I did have a chance to talk to but cannot be taken to represent all victims as a whole.

During my discussions it was made abundantly clear to me that there is strong support for Bill S-6 based on three main areas it addresses: accountability, transparency, and compassion.

The first, accountability, is a big one. People who have lost loved ones to horrible, brutal acts of cruelty want to be sure that this person who did it is brought to justice and serves time. Depending on their individual outlook, victims may see that time as a means to rehabilitation and to assisting the offender to become a reformed and productive member of society. From another point of view, the victim may just want to ensure that the offender who did this isn't roaming the streets and that he or she has been required to pay for the life that they took. Either way, no matter your outlook, it would be important to you that the offenders serve their time and that this accountability be maintained.

Based on this, you can understand that it would be difficult for a victim to understand why, when given a sentence of 25 years, an offender would be given the opportunity to get out early, to pay a lesser debt to society for the crime they have committed, and essentially to pay a discounted rate for the life they have taken.

That is not to say that there are not compelling arguments for the impact this loss of hope might have on offender rehabilitation. That is an important discussion, and I am sure you will delve into that here, but I bring to you the victims' point of view.

My second point, transparency, has to do with how well victims are informed of the faint hope clause generally, when or if an offender applies, and what their rights are in terms of participating in the process. As members are aware, the notification process and requirement are a provincial responsibility. For example, in Ontario we understand that victims do not have a legislative right to be informed when an offender makes an application for faint hope, nor when their application is heard by the jury. This isn't to say that in practice it doesn't occur, but it is discretionary and without a right. Victims have no form of recourse if they are unable to participate in the process in any meaningful way.

I will not touch on this too much, as it is handled at the provincial level. I will say, however, that all victims deserve to be kept informed and to play a meaningful role in the criminal justice system should they wish to.

My third point is compassion, and it cuts to the heart of the matter for victims. The grief victims experience is devastating, and for those strong enough to try to move forward in life, having to rehash the crime and the trauma at a hearing can feel like reliving the worst time of their lives over and over again. Yes, victims can choose not to attend a hearing, but like anyone, victims often feel a strong compulsion to be there in person and to stand up for the very person who cannot--the victim.

Even before a hearing, the uncertainty can wreak its own havoc. Some victims will say that the worst feeling is simply not knowing when or if the offenders will apply, and if they do and are rejected, whether they will try again and how soon. This state of unrest causes anxiety and stress over and above what they're already coping with. In the current scheme, victims could be expected to face these hearings up to five times in any one life sentence, at 15, 17, 19, 21, and 23 years.

There are various ways this could be handled. The suggestion in the bill is to eliminate the faint hope clause completely. Another way might be to apply the provisions suggested for already incarcerated offenders to all offenders and set strict timelines on how often an offender can apply, ensuring at least five years before applications for parole.

In the end, all victims want is that no one else experience what they have experienced. They want the offender to be held accountable for his or her crime. They want to participate fully in the process, if they so wish, and they do not want to relive the crime over and over, so as to be able to look towards the future and healing.

The bill, in its present form, fulfills some of these wishes, but it is not necessarily the only solution to the problem.

On behalf of my office, I reiterate my support of the victims we represent and I encourage members to support the bill as quickly as possible.

Thank you. Merci.

[The Chair, Conservative, Ed Fast]

We'll now continue with questions on Bill S-6.

Before we go to questions, I believe, Ms. O'Sullivan, you have an opening statement.

[The Chair, Conservative, Ed Fast]

Thank you.

We're at the end of our first hour, so I'm going to bring that part of the meeting to a close. We'll now open it up for questions to Ms. O'Sullivan on Bill S-6, as per Ms. Jennings' request.

I am going to continue the questioning here with Ms. Jennings.

[The Chair, Conservative, Ed Fast]

We've completed the first round. There appears to be some consensus developing here. Ms. O'Sullivan is also here on Bill S-6. We could go into that part of our meeting right now, if you wish. It gives you more time for that.

[The Chair, Conservative, Ed Fast]

Okay, let's go back to BillS-6. We are actually dealing with two items. We have Bill S-6 and we also have a review of an order-in-council appointment under Standing Orders 110 and 111.

We'll begin with the review of the OIC appointment. We're considering the order-in-council appointment of Susan O'Sullivan to the position of federal ombudsman for victims of crime. During the second hour, as requested, Ms. O'Sullivan will make herself available to answer questions on Bill S-6. We'll also have with us Mr. Howard Sapers, the correctional investigator, and his executive director and general counsel, Ivan Zinger.

This is what I'm proposing to do. Typically we allocate one hour for the order-in-council review. If we don't need all that time, I'll take the balance of the time for our meeting and split it in two. Half of that would go to Ms. O'Sullivan, and half to Mr. Sapers. Is that acceptable to the committee members?

All right, we'll proceed on that basis.

We have Ms. O'Sullivan with us.

I think you know the drill. You have ten minutes to present, and then we'll open the floor to questions.

The floor is yours.

[The Chair, Conservative, Ed Fast]

I note that we’re planning to have a steering committee meeting on Tuesday, November 23, at 11:30. I understand that we’ve inquired about your availability, and the three members of the opposition are available at that time.

Finally, you should have before you a budget for the Bill S-6 study. It’s not a big budget. The amount requested is $3,800 to cover witness expenses.

It’s moved by Mr. Lee.

(Motion agreed to) [See Minutes of Proceedings]

We'll go to Mr. Comartin.

[The Chair, Conservative, Ed Fast]

Actually, the steering committee report was adopted, and it showed Bill S-6 for clause-by-clause.

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

Did I understand you correctly that the committee would be moving to clause-by-clause on Bill S-6 on Tuesday afternoon?

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 36 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, November 18, 2010.

We are going to be continuing our study of Bill S-6. However, before we do that, members, I want to go through a couple of housekeeping items.

First of all, at our next meeting we will be hearing at least one more witness, if not two. We’re just trying to line up the final witness. We’re waiting to confirm that. Then we will move to clause-by-clause.

At the following meeting we will have the minister appearing on Bill C-4, you may recall. Then we will be dealing with Bill C-21.

Mr. Comartin, you had asked about witnesses on Bill C-21. The one witness you asked for was Statistics Canada. They have indicated that they don’t have any additional information to add to what’s already on the record. Also, incidentally, they’re not available on the two dates we made available to them.

We haven’t received any other witnesses from our members here. I just want to make sure that you’re aware of that, because our timeframe now is pretty short.

Go ahead, Ms. Jennings.

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

I imagine we will be receiving it. Thank you.

Mr. Sauvé, some journalists or some people who analyze the prison system say that if Bill S-6 is enacted as it now stands, there is a risk of an increase in violence in prisons, since some inmates will no longer have the faint hope clause. They will know they are going to be incarcerated for the rest of their lives. What do you think about that?

[Ed McIsaac, Interim Director of Policy, John Howard Society of Canada]

I thank the committee on behalf of the John Howard Society of Canada for the invitation to appear today. We appreciate the opportunity to meet with you to discuss Bill S-6.

In June 2010, I left with the clerk copies of our submission on the legislation presented to the Senate's Standing Committee on Legal and Constitutional Affairs. I made the same mistake as the Quebec bar, assuming that the submission would have been transferred over when the legislation moved.

There has been to date extensive and detailed discussion on the proposed legislation. As such, I will provide a brief opening statement.

The John Howard Society of Canada, as most of you know, is a non-profit organization whose mission is to promote effective, just, and humane responses to the causes and consequences of crime. The society has 65 front-line offices across the country delivering programs and services to support the safe reintegration of offenders into our communities.

The John Howard Society of Canada does not support this legislation. What we appear to have here is a proposed solution in search of a problem.

While the faint hope clause over the years has become synonymous with a claimed “soft on crime” approach, the data and our experience say otherwise. The faint hope clause, as you know, was introduced in 1976 as an offset to the abolition of capital punishment and the establishment of the 25-year minimum sentence without parole eligibility for first-degree murder convictions. Between 1961 and 1976, the average period of incarceration before conditional release was 15.8 years for those serving a sentence of capital murder. Currently, the average length of time served prior to conditional release is 28.4 years for first-degree murder convictions. How can this huge increase in time spent in federal penitentiaries, subsequent to the introduction of the faint hope clause, be portrayed as soft on crime?

The data also show, with regard to international comparisons with other western democracies, that the time spent in custody on first-degree murder convictions in Canada is double that of other jurisdictions. Again, where is the evidence of excessive leniency?

For those serving life sentences, the current process for obtaining a reduction in parole eligibility is rigorous. It includes reviews by a judge, a jury, and eventually the National Parole Board. The number of offenders applying under the provisions of the faint hope clause is low. According to the CSC figures—and they were adjusted somewhat today—1,062 offenders were eligible for review, yet only 174 applications had been received. These low numbers are evidence of an extremely limited self-selection process, resulting in very few, if any, frivolous applications coming forward. Those applications that are approved by a judge as having a reasonable prospect of success and which are then granted a reduction of time on eligibility by unanimous decision of a jury are, in the vast majority of cases, being granted conditional release by the National Parole Board.

So where is the problem with the current process that this legislation is attempting to address? Who within this process is being soft on crime: the judiciary, the juries, or the National Parole Board?

I would suggest the data clearly indicate that Canada, in comparison to other western democracies and our history prior to 1976, is in fact unreasonably tough on crime. Society is not well-served by long prison sentences. Legislation that increases the period of incarceration should not be accepted. This legislation is not an effective, just, or humane response to the reasonable management of life sentences. I recommend that the committee reject this legislation and turn its attention to a thorough review of how we as a country have moved from an average period of incarceration for those convicted of first-degree murder, from 15.8 years prior to 1976, to the current unreasonable 28.4 years.

I thank you for your attention and I look forward to your questions.

[Michael Mandelcorn, Regional Director, Criminal Lawyers' Association]

Thank you. The Criminal Lawyers' Association welcomes the opportunity to appear before this committee on the fundamentally important issues raised in Bill S-6.

The Criminal Lawyers' Association is a non-profit organization that was founded on November 1, 1971. Our organization represents approximately 1,000 criminal defence lawyers across the province of Ontario. The objectives of the organization are to educate, promote, and represent the membership on issues relating to criminal and constitutional law.

While the Criminal Lawyers' Association supports the proposition that offenders who have committed murder should only be released if they do not pose an undue risk to reoffend, we believe the amendments to the faint hope clause, as contemplated by Bill S-6, do not advance this goal. In particular, I ask you to note the points that follow.

First, all of the government's new crime legislation is designed to bring public accountability to the criminal justice system and restore public confidence. The faint hope provisions are about public confidence. It is the public--the jury--that hears the evidence and makes the decision.

Second, much has been said about the revictimization that is caused by the current faint hope provisions. We must remember that the convictions, by definition, are at least 15 years old before the matter gets to the jury. The convictions themselves are not in dispute. The person has either pleaded guilty or has been found guilty. This is a prime opportunity for victims to see what progress the offender has made over those intervening years.

Third, the provisions provide a much-needed incentive for convicted persons to fully utilize rehabilitation and programming while in custody. The offenders most likely will be released eventually; it is in our interest that they remain motivated to rehabilitate themselves.

Fourth, as noted in the legislative summary of Bill S-6, as of April 13, 2009, 991 lifers were eligible to apply for judicial review. There have only been 174 court decisions made, resulting in the reduction of sentences in 144 cases. It would appear that only those offenders who have the best chance of success are applying for a reduction of parole ineligibility.

Fifth, the National Parole Board did grant release in 131 cases, although we have no information as to how many hearings it took after the reduction in parole ineligibility for the offender to achieve some sort of interim release.

Sixth, I believe you just heard some of these statistics previously, but of the seven offenders who had their full parole revoked, two were revoked for breach of conditions, three for new, non-violent offences, and two for new, violent offences. Of the seven offenders who had their day parole revoked, five were revoked for breach of conditions, one for a new, non-violent offence, and one for a new, violent offence. Thus, the overwhelming majority of lifers who are released do not reoffend.

Finally, it is our position that the current vetting procedure in subsection 745.6(1) is sufficient to ensure that frivolous applications do not make it before a jury.

Thank you very much.

[The Chair, Conservative, Ed Fast]

Reconvening the meeting, we're continuing our review of Bill S-6.

We have two organizations and one individual with us during this second hour. First of all, we have the Criminal Lawyers' Association, represented by Michael Mandelcorn. Welcome back. We have the John Howard Society of Canada, represented by Ed McIsaac. Finally, we have Mr. Rick Sauvé. Welcome back.

As each of you know, you have 10 minutes to present. If you take less time, that's great; it means time for more questions from our members.

We'll start with Mr. Mandelcorn, please.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[Marie-France Pelletier, Executive Vice-Chairperson, National Parole Board]

Thank you, Mr. Chair. I would like to thank you for the opportunity to appear before you in connection with your consideration of Bill S-6, An Act to amend the Criminal Code and another Act.

I would first like to tell you a little about us at the National Parole Board. The Board is an agency within Public Safety that reports to Parliament through the Minister of Public Safety. It is an arm's length, independent administrative tribunal. The Board is responsible for making quality conditional release decisions for offenders serving federal sentences of two years or more.

We also make conditional release decisions for provincial offenders serving sentences of less than two years in provinces without their own parole boards. As well, we make pardon decisions and clemency recommendations.

The board is made up of 45 full-time board members, when at full complement, and to ensure that we process our cases as mandated under law, we may also use approximately 45 part-time board members.

One of the main pieces of legislation governing the board is the Corrections and Conditional Release Act. The CCRA provides for principles to guide the board in conditional release decision-making, most notably that the protection of society be the paramount consideration in the determination of any case and that the board make the least restrictive determination that is consistent with the protection of society.

The Board must first determine whether the the offender will not present an undue risk to society before the expiration of the sentence. It must also determine whether the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender as a law-abiding citizen.

All decisions are based on an in-depth analysis of each case, and a through risk assessment based on all relevant and available information from police, courts, mental-health professionals, victims of crime, and others.

With respect to the faint hope clause, as we indicated to a Senate committee last June, the board has no role in the actual judicial review process itself.

If an offender's judicial review hearing is successful, impact on the board is minimal in that a positive judicial review decision results in adjusted parole eligibility dates. As you know, the offender is not automatically paroled. He or she must still undergo a hearing or a review.

Board members conduct a thorough risk assessment of all relevant available information, just as they would in any other parole case. If the board grants parole, the offender still remains subject to the original sentence imposed by the court, as well as to standard and, in some cases, special parole conditions.

Offenders paroled while serving a life sentence remain under Correctional Service Canada supervision for the rest of their lives, and they can have their parole revoked and be sent back to prison if they violate their conditions.

Judicial review cases are treated with the same rigour as other cases. Each case that comes to us is weighed on its own merits by independent Board members who receive intensive training on the requirements of the Corrections and Conditional Release Act, and in risk-based decision-making.

Thank you once again for inviting the National Parole Board to appear today and I will be happy to take your questions.