Justice Committee on Nov. 2nd, 2009

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

Mr. Mandelcorn, some victims told us about how emotionally taxing it was for them to come back every two years and go through the whole procedure again. I understand that you are not in favour of this legislation, but what if it were limited? What if their applications were turned down, they had to wait five years before being able to apply again? Would you be in agreement with this?

[Michael Mandelcorn]

I should note that I'm not a historian or very good at statistical analysis. I'm not aware of a case in which the initial review was unsuccessful whether the offender would have reapplied.

I've never dealt with a case like that. Maybe Ms. Pate or Ms. Rosenfeldt know.

[Kim Pate]

I know of one man, but none of the women have reapplied.

[Sharon Rosenfeldt]

I don't know of any.

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

Mr. Rosenfeldt, would it be an improvement for victims to know that a new application could not be filed within five years once the first application has been filed, testimony has been given, and the application has been turned down?

[Sharon Rosenfeldt]

That is a difficult question to answer on behalf of all victims. I appeared here today on behalf of our organization to ask for the full repeal of section 745, which means that if it were repealed, there would not be any issues such as that.

You are asking me to possibly take a look at possibly reconsidering. I guess I could answer that question only when we find out what is going to happen ultimately with this clause. I can't answer that, truthfully.

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

Thank you.

Ms. Pate, you gave us some figures, not all of which I was able to write down. If I understand correctly, 10 women have filed an application. You were saying that some of these women were abused by the individual they killed.

Were these women convicted of capital murder, the most serious murder charge, which entails a minimum sentence of 25 years in prison without parole, or second degree murder?

[Kim Pate]

In the case of the woman I talked about who had an intellectual disability, it actually was considered a contract killing at the time, because she was in a bar and had asked someone to help her by stopping this man, her common-law husband, from beating her. The man who killed her common-law husband said he would help her if she gave him $100. It's unclear whether she had any idea that it would be anything more than scaring him or beating him up or something. I would question whether she even had some of the requisite ability to form the intent. Nevertheless, she was convicted of first degree murder at that time. She was one of our early reviews. She was also the woman who was returned, because she was living with some women who were committing fraud, and she was thought to be part of it. It turned out that she wasn't, and she was released again. That's the only woman who was in that kind of situation.

Two of the women were caught in the constructive murder situation. When the constructive murder provisions were withdrawn, these were two women whose cases weren't active, so they weren't reviewed. They had been convicted of first degree murder even though they were not.... They were with the men, and the men had threatened them to not warn the police, in both cases.

So those are three. One did not testify and was convicted of first degree murder. Two others did testify and were still convicted of first degree. Three acted alone, and the rest had co-accused. Ten were eligible, nine applied, and two were unsuccessful. So one has not applied.

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

Unless I am mistaken, it is my impression that you are telling us that, ultimately, these women should not have been found guilty of first degree murder for one reason or another and that this provision is a way, over time, of correcting the mistaken verdict made in the past.

[Kim Pate]

As you may be aware, one of the courses I teach at the law school is on defending battered women on trial for this. These are some of the reasons that it's not often that the women themselves provide the evidence. Most of the innocence projects and the conviction review groups only go on factual innocence. These are not women whose cases are easy to review, because of the manner in which we've developed review mechanisms around the way men have usually been convicted. So I would say that in my opinion and the opinion of many of those not just in my organization but in other groups, these are individuals who probably should not have been convicted of first degree murder. They were, and some of them didn't even pursue appeals; some did. This is a mechanism that in some respects one could see as an attempt after the fact to work through the system.

It's also important to note that we're now at the point that 20% of prisoners are lifers. When these provisions were brought in, they were strongly supported by corrections people, by prison guards' unions because of the view that we should create some hope amongst individuals, not just to induce them into programs—in fact, I would argue that's the last reason we should—but to induce them to their own humanity, to deal with the issues they need to deal with to move on and re-enter society. With all of the mechanisms that are in place now, we're seeing increased numbers of lifers. As a matter of principle, what are we going to do when we get to 50% who are lifers? What are we going to do when we get higher?

Going back to the question of Mr. Murphy, if part of our issue is the principles of sentencing and if we're choosing to go in a completely opposite direction from most other parts of the world and have longer and longer sentences and more people in, at what human and social costs as well as what fiscal costs will we be doing so? I think that out of all the resources we're talking about spending on this, in all kinds of ways I would much rather see considerably more of them, if we're talking about victims' issues, put into supporting victims earlier in the process.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin, you have seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you for being here.

Ms. Pate, how current is the figure you just gave us, of 20% being lifers in our federal prisons?

[Kim Pate]

The figure 19% to 20% was for 2007 or 2008. I'm told it may be as high as 25% today. I couldn't find the figure for today.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Actually, I think it's higher.

Does anybody know how many of the cases that go in front of a jury have victims appear—and I mean physically appear and give testimony in the form of victim impact statements—or how many send in written impact statements? Does anybody know?

[Sharon Rosenfeldt]

I don't know.

[Kim Pate]

I only know that of the women in the cases I was involved with, in three of the women's cases victims actually appeared—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

That's three out of nine.

[Kim Pate]

Yes, three out of nine; and two others had written statements.

[Sharon Rosenfeldt]

That's a very good question.

To my knowledge, any of the victims I know do appear, and they read the victim impact statement.

I would like to say about the victim impact statement that it is not a statement in which you can go in and spew whatever you feel you want to spew. There are definite questions that are written out for you, which the victim has to answer. It's fairly straightforward.

That's a very good question, though. It should be worth looking at.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I think it's a question, Ms. Rosenfeldt, that in terms of making a decision on this we should have answered, and it disturbs me that this bill is before us and we don't have that information.

I want to add to that by way of a comment—this is anecdotal, because I can't get it from anybody else—that my impression is, regarding the numbers we just got from Ms. Pate, that fewer than 50% of victims do in fact either present a statement or appear themselves.

Mr. Mandelcorn, can you be of any help?

[Michael Mandelcorn]

I don't have any information beyond the cases I've been involved with. My experience has been that they have been there and have read off a statement. I don't know, in terms of the overall number of hearings, what proportion there would be.

[Sharon Rosenfeldt]

I'm sure that figure should be fairly easy to get.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

It's not.

[Sharon Rosenfeldt]

It's not? You've tried?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

We have Mr. Head coming from Corrections Canada on Wednesday, and he may have it, but from my information at this point, I don't think he has.

In terms of some basic information I think we should have before we proceed on this, does anybody know how many prisoners were released on the first application and how many had to reapply a second or a third time before they were ultimately successful in becoming eligible?