Justice Committee on Oct. 19th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 38 of the Standing Committee on Justice and Human Rights. Today is Monday, October 19, 2009. I'll just note that today's meeting is being televised.

You have before you your agenda for today. At the end of today's meeting we'll leave approximately 20 minutes to deal with some committee business and to continue debate on Monsieur Ménard's motion on the study on the Cinar case. I can also advise the committee that your subcommittee will be meeting tomorrow at noon to plan our schedule going forward.

Once again, I'll remind all of us to turn off BlackBerrys or put them on vibrate, and please make sure you take any phone calls outside of this room. Thank you for your courtesy.

Now back to our agenda. By order of reference, we will be considering Bill C-36, an act to amend the Criminal Code. This is a bill that deals with serious time for the most serious crime.

To help us with our review of this bill we have with us the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Welcome back, Minister.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Thank you very much.

[The Chair, Conservative, Ed Fast]

Supporting the minister, we of course have Catherine Kane and John Giokas, counsel with the Department of Justice. Welcome to you all as well.

Minister, you have the floor for ten minutes for an opening presentation.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much, Mr. Chairman.

I'm pleased to meet with you once again to discuss justice legislation. This time I'm here to discuss Bill C-36, an act to amend the Criminal Code, the Serious Time for the Most Serious Crime Act, which proposes to make significant changes to the faint hope regime.

As you are aware, the Criminal Code currently provides that offences of high treason and first and second degree murder carry mandatory terms of life imprisonment accompanied by mandatory periods of parole ineligibility. For high treason and first degree murder, an offender must spend a minimum of 25 years in prison before being eligible to apply for parole. For second degree murder, an offender must serve a minimum of 10 years. However, a judge may increase this to a maximum of 25 years, depending on a variety of factors, including the circumstances of the crime.

Despite the appropriately severe nature of these parole ineligibility periods, the faint hope regime--section 745.6 and related provisions in the Criminal Code--allows offenders sentenced to life imprisonment for murder or high treason to apply to be eligible for early parole after serving only 15 years. Our government promised to change this by restricting the availability of faint hope for already incarcerated offenders and by eliminating it completely in the future.

The amendments to the Criminal Code I'm bringing forward will accomplish these goals. First, they will bar everyone who commits murder or high treason in the future from applying for faint hope. All those who commit these offences after these proposed amendments come into force will no longer be able to apply for a parole eligibility date earlier than that mandated by the Criminal Code and imposed by the judge at the time of sentencing. In effect, Mr. Chairman, the faint hope regime will be repealed for all murderers in the future. This will complete a process begun in 1997, when the faint hope regime was effectively repealed for all multiple murderers who committed at least one murder after that date.

The rationale for Bill C-36 in this regard is very straightforward. Allowing murderers a chance, even a faint one, to get early parole is not truth in sentencing. Truth in sentencing means that those who commit serious crimes ought to do serious time. That is what the proposals in Bill C-36 aim to do. They restore truth in sentencing and keep dangerous criminals in prison for longer periods of time.

Clearly, the faint hope regime does not, on its face, automatically entitle an applicant to parole. In fact, however, the vast majority of those who are successful on a faint hope application are ultimately granted parole by the National Parole Board. What this means is that killers who were given appropriately lengthy sentence terms are getting out and walking the streets, albeit under conditions of parole, earlier than otherwise would be the case. These amendments are designed to respond to the concern of Canadians who are often dismayed to discover that, thanks to faint hope, the custodial sentences imposed on murderers are not always the ones served.

As for those already incarcerated for murder who are now eligible to apply under the faint hope clause or will become eligible to apply for faint hope in the coming years, their right to do so will remain.

However, the second thing these amendments will do is tighten up the faint hope application procedure to screen out the most unworthy of these applications and place restrictions on when and how many times these offenders may apply for faint hope. This new procedure will apply to those who commit their offences before the coming-into-force date. Those already serving life sentences in prison, those who have been convicted but not yet sentenced, and those charged with murder or high treason prior to the coming-into-force date who are later convicted will be subject to this new procedure.

In proposing these Criminal Code amendments both to bar future murderers from applying and to tighten up the application procedure for those already in the system, Mr. Chairman, we are mindful of the suffering endured by the families and loved ones of murder victims. Through these amendments, we propose to spare them the pain of attending repeated faint hope hearings and having to relive their terrible losses. As I have said on a number of occasions, this government remains committed to standing up for the victims of crime.

Many of you already know that the faint hope application has been amended a number of times since its inception in 1976 in response to the concerns of victims' families and the citizens of Canada.

At present, the procedure has three steps. First, the applicant must convince a judge in the province where the conviction occurred that there is a reasonable prospect that the application will proceed. This threshold test has been described by both the Manitoba Court of Queen's Bench and the Ontario Superior Court as being relatively low.

We will make this test tougher. A faint-hope applicant will have to prove that they have a substantial likelihood that their application will succeed. They will need to have that substantial likelihood that their application will succeed. This means that the evidence the offender will bring forward to a judge must be much more convincing. This will prevent less worthy applications from going forward.

We are also proposing a longer minimum period of time before unsuccessful applicants can reapply to a judge. Right now, the minimum period an offender has to wait to reapply to a judge is two years. Under this proposal, they will now have to wait a minimum of five years.

If these proposed procedural changes become law, a convicted murderer with a 25-year parole ineligibility period who applies at the earliest possible opportunity will only be able to make two faint-hope applications, at the 15- and the 20-year mark. This contrasts with the present system, where there are five applications at 15, 17, 19, 21, and 23 years. This change from two to five years will create more certainty for the families of victims about when a faint-hope hearing will occur. By limiting the number of applications that can be made, we will reduce the trauma that these hearings often inflict on them.

If an applicant succeeds at the first stage, he must then convince a 12-member jury to agree unanimously to reduce his or her parole eligibility date. If the jury says no, the offender may, under the present law, reapply in as little as two years. Again, we are going to change this to five years, and for the same reasons that I've just outlined.

If an applicant is successful at the second stage, he or she may go on to apply for parole directly to the National Parole Board. No changes are proposed for this final stage of the process.

Under the current law, those convicted of murder or high treason may apply for faint hope at any time after serving 15 years. We also propose to change this by putting a three-month limit on faint-hope applications.

This will require applicants to apply within 90 days of becoming eligible. If this application window is missed, the offender will have to wait five years to apply and will once again have 90 days within which to file a subsequent application. This will ensure that applications are made at the first and each subsequently available opportunity. No longer will victims' families be forced to live in constant dread, uncertain as to whether a particular killer will revive their suffering by seeking early parole at his or her whim.

Let me add that I understand the concern of ordinary Canadians that the faint-hope regime allows for lenient treatment of murderers. In this regard, I believe that most Canadians support these measures, which are aimed at protecting society by keeping violent or dangerous offenders in custody for longer periods. This bill will allow us to meet the concerns of Canadians that murderers do the time they have been given and stay longer in prison than they do now. That is why I urge all members of this committee to support this bill.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you, Minister.

I believe we have Monsieur LeBlanc starting off for the opposition.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Thank you, Minister, for coming to the committee.

Colleagues will know, and the minister knows, that we supported Bill C-36 at second reading. We continue to believe that this is an appropriate measure to take. It was a previous government, as the minister noted, that restricted it 12 years ago, and this is a further restriction of the faint hope provision.

There has been, I think, a lot of confusion around this. “Faint hope” means faint hope in the sense that, as the minister alluded to earlier, people convicted of those very serious offences shouldn't automatically assume that the rigorous provisions by which they could apply to a court for the ability to then apply to the National Parole Board would automatically be accepted.

I'm wondering if the minister or his officials have any statistics. In terms of offenders who have taken advantage of the faint hope provision and made application in the past, what percentage of those applications in recent years, for example, would actually end up being granted parole?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a very good question, and I'll ask the officials in a moment to respond to that, Mr. LeBlanc.

You raise an important issue. In my discussions with victims and those who brief me, they tell me the individual would be very unlikely to make parole or take advantage of the faint hope clause. What happens is that the families are put through the wringer again. They suffer again and again. Even if it is unlikely that they are going to be successful in their faint hope application, they tell me unanimously that this victimizes them again and again.

My heart goes out to those individuals. I understand what they are saying. Some of these individuals have no hope of taking advantage of this particular provision in the Criminal Code and it does nothing except further the suffering of victims' families and their loved ones.

I'll ask the departmental officials if they have any other comments.

[Catherine Kane, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

With respect to your question in terms of how many people made application, we do have some data, which is current as of April 2009, indicating that out of the 265 applications made over the time it was possible to make faint hope applications, 140 obtained reductions in their parole eligibility dates.

Those reductions would depend on whether they were serving a sentence for first degree or second degree murder, so between one and ten years; it varies with the individual. That has to be put into context in terms of the total number of people eligible to apply; the 265 is over that period of time.

You have to bear that in mind in terms of the total number of people serving life sentences. To assist in doing that, we could add that as of April 2009 there were 1,001 individuals serving life sentences who are potentially able to apply either now or in the future.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Ms. Kane, of those who had their sentences reduced by receiving early parole, is there any tracking of whether those individuals have reoffended?

[Catherine Kane]

Yes, the Correctional Service of Canada does track them quite rigorously. Ultimately the parole board granted parole to 127 of the group I referred to. Of that group, 13 were later returned to custody, 11 died, three were deported, one was on bail, another on temporary detention, and 98 were serving the conditions of their parole in the community under strict supervision.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you for that information.

Perhaps I could ask one question, Mr. Chair, if there is any time, and if not I'll ask it on the second round. I know the member for Yukon has a question.

I have a large correctional facility in my riding: the Dorchester prison and the Westmorland Institution. Some of the correctional officers who work at the Dorchester Penitentiary have told me over the last number of years that they have some concerns with respect to institutional security. I know the minister might say that his colleague is doing a terrific job at the Department of Public Safety--we've heard that before--but I'm wondering whether in preparing his legislation the minister had any input from the union representing correctional officers, who shared with me, albeit anecdotally, real concerns about removing the faint hope, and what that might mean to institutional security for the staff who work in the prison as well as the other inmates.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I can assure you that for those who are worried about that, Monsieur LeBlanc, we're saying that people convicted after this comes into force.... I mean, and we're talking 15 years from now.

You did mention my colleague the Minister of Public Safety, who of course is in constant touch with individuals who work within the criminal justice system in terms of detention and facilities at the federal level. You are quite correct that I've said, on a number of occasions, that he's doing an excellent job in that regard. It's certainly something I believe in, and I'm glad you've given me the opportunity to once again reaffirm my support and cooperation with him.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

I'm sure he's very pleased with that as well.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't want to put words in his mouth.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Mr. Chair, if there's any time, the member for Yukon had a question.

[The Chair, Conservative, Ed Fast]

You have one minute, so you'll have to restrict it to a 30-second question and a 30-second answer.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you, Minister. I appreciate your comments.

We all agree that judges do their best to make the appropriate decisions, but knowing this stricter regime, I wonder if you think there's any possibility this might lead to lesser sentences? Is there any worry that might occur?

[Rob Nicholson, Conservative, Niagara Falls, ON]

With respect to first degree murder and treason, that's it; it's a life sentence. There is no possibility of parole for 25 years. There's not much room to manoeuvre. People say that I'm bringing in mandatory minimum sentences. I respond to them that there are already a quite few in the Criminal Code, and that has to be one of the highest minimums.

I have complete confidence in the judicial system's capacity to handle this or indeed any of the changes that we bring forward.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, you have seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Minister.

When I first heard about this regime that you want to amend, I, too, was well aware that such a sentence is imposed when the most serious crime has been committed, that is, when someone intentionally kills another person. When the decision was made to eliminate the death penalty for this crime, it was necessary to set out very serious consequences.

I can appreciate some of your arguments regarding the suffering of victims, or rather the suffering of victims' families, since we are talking about homicide victims. I think it is excessive to require them to come and testify every two years.

We can agree with you on one aspect of this bill and call into question certain others. With all due respect, we can have different opinions stemming from our own experiences.

I listened to your presentation about crime. Do you really believe that the faint hope regime should never have been created?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I won't speculate about what was in the past. I was part of a government for nine years, and we made many changes to the Criminal Code. I cannot help but believe that anyone who sits down with a victim's family will come to the same conclusion I have come to. That is what's embodied in this bill. This has to be changed, because the continuous victimization is the problem.

You said there were certain aspects, and I want you to look carefully at some of those. One thing I like is the time limits on the applications. I've had people tell me they're waiting at the 15-year mark, and they don't know if and when the individual's going to apply. They even start trying to plan their lives around making sure that they hear this is coming. They try to pick up some information. It becomes very difficult for them. When you get your chance to look at this in detail, this is one of the things that should commend itself to you. For the people already in the system, there are strict time limits on your ability to do this. For people convicted in the future, if this bill comes into force, it won't be a question, but for the people already in the system, those time limits are a major step forward. I hope these are some of the details you will look at very carefully.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I was looking for a simpler answer to my question. Nevertheless, I think you are saying that you have certain reservations and that you accept the fact that these provisions existed in the past. You want them amended, but you do not believe that victims would want any such provisions.

[The Hon. Rob Nicholson]

Yes, that is correct.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

What happened with the implementation of this system to make you think that it should be virtually eliminated?

[Rob Nicholson, Conservative, Niagara Falls, ON]

As the Minister of Justice, you meet with victims groups on a regular basis. They are clear about the damage that a clause like this continues to do to their families. They have the initial horror of having a loved one murdered. They go through the trial and all the difficulty associated with it, as well as the appeal period. Then, later on, this becomes the second act, so to speak. It gets continuous—it goes on and on and on. It's this victimization we're trying to address.

Mr. Ménard, when we spoke with Canadians about this and other aspects of our criminal law agenda, we received wide support. I suppose that's one of the reasons why we're the government today—many people agreed with what we had to say. It's an important part of who we are as a government. Canadians have responded favourably, and I'm very pleased about that.