Evidence of meeting #45 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-36.
A recording is available from Parliament.
November 2nd, 2009 / 4:40 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you.
If I understand you correctly, Ms. Rosenfeldt, you and your association are entirely opposed to section 745 and would like to see it repealed, end of story.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Can I therefore conclude or assume that you do not support, or have serious problems with, the government Bill C-36, which does not repeal section 745 but allows the faint hope clause to continue to exist, albeit under some changed conditions? An inmate serving a life sentence with no possibility of parole for 25 years would still have the right to apply under that section.
Victims of Violence
My understanding—and please, committee, correct me if I'm wrong—is that Bill C-36 is a full repeal of section 745.6, the faint hope clause, other than for individuals to which it does not apply after the date it is passed. That's where the five years come in, because there are many individuals who can't go retroactive. So it's going to affect many individuals. That's just the way it is, and I don't have a problem with that.
Victims of Violence
If there's the full repeal, I don't have a problem with the rest.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
For those who are sentenced and found guilty in the future, if the bill comes into effect—
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
But for those who are currently serving life sentences, you don't have a problem with limiting that?
Liberal
Victims of Violence
What I don't have respect for is the lie of the law the way it is before your 25—
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Thank you very much.
My other question is about a parole board report that came out on April 13, 2009 and which appears to give—I don't have the actual report, but just have a summary of it—the actual number of offenders who have been deemed eligible to apply for judicial review under section 745 since the first judicial hearing under that faint hope clause was held in 1987. It appears to state that no one who has actually received early release under section 745 has gone on to commit murder.
Mr. Mandelcorn and Ms. Pate, are you aware of any other studies that have looked at all of the statistics regarding the number of inmates since 1976 who were eligible for parole under section 745--who went through the process and were actually deemed to be eligible to go before the parole board--and went before the parole board and actually received early release, and while released actually committed another murder for which they would have been subject to a life sentence without parole?
I'm asking both of you if you're aware of that and whether it exists. Do you have any information that would indicate yes or no, or you don't know?
Regional Director, Criminal Lawyers' Association
No, but I'd just say the same statistics you quoted from mention that a total of 14 cases have been returned. Of those cases, two, I believe, were for a new violent offence, and there is no mention of it being murder. So I would say no, there are no cases where a new murder was committed while the person was on parole.
Executive Director, Canadian Association of Elizabeth Fry Societies
And I'm not aware of any either.
Conservative
The Chair Conservative Ed Fast
Ms. Jennings, thank you.
We'll move on to Monsieur Lemay, for five minutes.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Thank you.
Mr. Mandelcorn, you have taken clients through the process to obtain a judicial interim release or an application to appear before the National Parole Board—but I do not know for how many clients.
Do you believe that the current process ensures that the objective set out in section 745 is met, which objective is not to release an individual who is not prepared to be released?
Regional Director, Criminal Lawyers' Association
Absolutely. At best, a successful judicial review application allows a person to apply before the National Parole Board at some earlier date than the 25 years of a first degree life sentence. It is solely within the discretion and decision-making ability of the National Parole Board to grant a release. Fundamentally, they are the gatekeepers protecting society. Based on their reviews of materials provided to them by the Correctional Service, they are in a position to say whether that person, the offender being released, presents an undue risk to society.
So in my submission, you do not have to have revisions to the faint hope clause as it's currently enacted to better ensure the protection of society. My view is that society is protected, based on the parole board's decision-making capability.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I do not know that we have a lot of time left, but I would like your opinion. In the case of an individual who has been sentenced—and we are talking about first degree murder, so someone who has committed a premeditated crime—how much time it can take before that individual is entitled to apply for parole?
Suppose that the person has been in jail for at least 15 years. Before holding a hearing, the court must convene a jury. How much time could it take to prepare that individual to file such an application before the court?
Regional Director, Criminal Lawyers' Association
He can't make the application until he is eligible. So the starting point is 15 years. He can't do it before we get everything ready; then off we go when it's time.
I know I don't have much time, but there's a whole series of practical measures that you have to consider about the whole process of applying. Fundamentally, the person has to retain counsel. In most provinces, that goes through a legal system. In most provinces—and I can speak of Ontario—the lawyer involved has to write a positive opinion letter to say that in his or her opinion there is at least a reasonable chance of success. Assuming you get that far, you then have the written notice of application, and the gathering of documentation, where, by definition, you're looking at least 15 years' worth of Correctional Service Canada institutional files that you have to review. You then have to get the supporting affidavits and the paper necessary to support your case, and you then still have to file that with the court. The crown then gets to respond, and you're still only at the vetting stage; you're not even at a jury yet. So it takes many years, I would say, beyond the 15 years before you actually get your day in court.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
In your experience, can someone who has become eligible pretend, or be such a good liar that they are able to fool the entire system and be entitled to ask the National Parole Board to reduce their sentence?
Regional Director, Criminal Lawyers' Association
I assume you mean the offender, not the lawyer, being the liar.
The short answer is, realistically, no. There's so much paper that follows an offender's 15 years' worth of incarceration that, quite frankly, if he's a bad apple, he's not going to be able to fake being a good one.