Justice Committee on Nov. 2nd, 2009

[Kim Pate]

I only know for the women. Of the nine who applied, seven were deemed—not immediately, but were deemed—eligible for reduction. Some of those reductions were immediate, and some were not.

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

When you say some were not immediately eligible, do you mean they would be saying yes, you can apply for parole in one, two, or three years?

[Kim Pate]

At 16 or 17 years, as opposed to at 15 years.

In most of those cases, they were very close to those dates, because it often takes a while to get to court. In one case, the woman was deemed to be eligible at 17 years, and by the time the section 745 hearing occurred, she was within four months of her 17-year date. Generally they're choosing a date. Sometimes it's been back to the 15 years, even though they're at 16 or 17 years when they actually get before the jury.

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

Mr. Mandelcorn, Ms. Pate gave us some sense of how long it takes, once they are eligible, to get through the parole process and actually get released. You went through stages that people go through. Do you have any figures as to the average time, once the jury has said yes, you will be eligible at this point and can apply to the parole board, how long it is before somebody is actually out in society?

[Michael Mandelcorn]

I think Ms. Pate had quoted in her comments that anywhere between two to five years after—

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

I realize that was for women. Do you have any sense whether it's the same for men?

[Michael Mandelcorn]

I don't think it's particularly different for men. It would just be based.... Quite frankly, in my representations at these hearings, I can't think of any case where a person serving life would achieve day parole on his day parole date. It's such a gradual process that, if you will, you're one application behind; you're going for unescorted passes, often, on your day parole date. You're going for day parole, which means release to a halfway house, on your full parole date. That's been my experience. In fact, I don't know of any cases where somebody would get out right on their dates, if they're serving a life sentence.

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

Are there any numbers as to how many people apply at the 15-year mark and are granted it on the first application? I've only come across one; I will throw that out on the table.

[Michael Mandelcorn]

If that question is directed to me, as I stated in my opening comments, what notes or facts I have are as of April this year: that of the 991 lifers—almost 1,000—who were eligible, only 174 applied. Of those 174, 144 were reduced in court. As to whether all of those were at the first appearance, I don't have information.

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

I have one final question before I run out of time, Mr. Mandelcorn. This was asked of Mr. Nicholson when he was here. There was some suggestion that, because of previous decisions we've had from the Supreme Court on a charter argument, if this section were repealed it might expose these sections to a successful charter challenge. Could you comment on that?

[Michael Mandelcorn]

What's interesting is that prior to going to life 25, when we had capital and non-capital murder distinctions—capital being a death sentence—the approximate average number of years before a non-capital murder offender was released was somewhere around 13 or 14 years. So with life 25, we're basically at very close to twice that.

I think an argument can be made, and probably would be made if it had to be made, that if there's no longer a faint hope clause, and if the person can only apply for release after 25 years of incarceration, that may constitute cruel and unusual punishment and be open to a charter remedy at that point.

[The Chair, Conservative, Ed Fast]

Thank you.

I'll move on to Mr. Moore for seven minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you to each of the witnesses for being here.

Ms. Rosenfeldt, I think you mentioned there's no faint hope for victims. I think that's very compelling, because the victims in these cases are gone. The families are left behind.

When I was in my teens, 15 years seemed like a tremendously long time. But as you get older, 15 years seems like less time. It would seem to me those 15 years would go by for a victim's family and then all of a sudden they're faced with having to come to terms with.... You've laid it out, and we've had other witnesses here, families of victims, who made it quite clear they are going to participate in the process. So when an offender applies under the faint hope clause, the victim's family is going to participate. It seems that's the overwhelming evidence we've heard.

After these 15 years, being forced to revisit, relive, can you let us know, in your working with victims' families, what goes into the thought process, the preparation? What is the impact on families when these hearings come up? If someone could reapply after two years, I would think one would just be putting the first hearing out of their mind when there's the potential for a second application.

So could you comment on the type of preparation, the type of work, the type of communication the victims' families would have as the time approaches for the offender to apply?

[Sharon Rosenfeldt]

I'll do my best.

I can use my family's experience. We're going to attend a parole hearing probably in June or August of next year. It's not a section 745 hearing, but we're all ready. We started discussing about the middle of October that we're going next year. It usually takes quite a few months. Sometimes you think about it and other times you don't and time goes on.

The thought of the victim impact statement goes into the preparation: how you're going to be able to explain what's in your heart. I think Kim mentioned that it's really hard as victims of crime to relate to issues that affect another human life, that being the offender's. It's really hard to use actual physical realities to denunciate at a parole hearing, or to write to a person's parole hearing, because it is so filled with the thought of what's right and what's wrong. Why do we have to go to these?

I talked about closure. A lot of people use the word “closure”, and for victims of crime there is not any real closure, other than the finality of the actual proceedings. So when it happens again in 15 years, yes, it's going to definitely open it up again. Is that right? Is that wrong? Is that part of the rehabilitation?

Kim mentioned that help should be forthcoming to the victims earlier. That really does not take place; most victims are left to fend for themselves. When the 15 years come up, if they happen to know about it, if they are registered with the National Parole Board, they are informed this is going to take place. Some victims don't even know they have to be registered to get this information. A whole lot of work has to be done, and that is being done right now.

I'm not too sure how much to let you know, other than I don't think it would take a rocket scientist to figure out the impact having to go to a section 745 hearing has on a person.

Kim, you mentioned—maybe you can talk to this too—that your father or stepfather was murdered. Did you have a 745 hearing? Maybe your family can attest to that.

[Kim Pate]

One of the two men who were responsible was deported when he became eligible. It was a second degree murder conviction.

[Sharon Rosenfeldt]

Well, it would still fall under the same—

[Kim Pate]

No, it was a life-10 sentence. One was deported, and the other is out.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for answering that.

Do I have any time, Chair?

[The Chair, Conservative, Ed Fast]

One minute.

[Rob Moore, Conservative, Fundy Royal, NB]

There is a case, which has been reported in the media, of a family living in a town bordering Mr. Murphy's and my ridings. Our ridings border on a town where this family lives. They were going through a parole hearing. Their daughter was killed many years ago and they went through the process of preparation. They travelled to Quebec for the hearing and then the offender cancelled the parole hearing after the family was already there.

Obviously that made the news and people were outraged by it. It was an egregious case of abuse. But we do have a system right now that allows that to happen. To most of us, certainly to me and the people I've talked to, it is simply not acceptable that this could happen to a victim's family.

You mentioned there is no closure for victims' families, and I can certainly appreciate that. But specifically when it comes to victims' families attending these faint hope hearings, does it not help with closure? Does it actually prevent closure? Is that a safe assumption?

[Sharon Rosenfeldt]

Yes, that's a very safe assumption; it definitely does not help with closure. All that happens when you attend a hearing is that you just wait for the next hearing. So you prepare yourself because you know you're going to be going back again.

I've always said that since we didn't have capital punishment in this country for the man who murdered my son, we have a life sentence with parole eligibility at 25 years instead. So all I really expect as a mother and a Canadian who believes in our laws is that this be true, that he does serve 25 years. But right now he has the right to apply every two years for another two years. I don't like that either; I think that's wrong. But that's a whole different situation from what we're talking about here. In fact we're addressing that as well, even though it's a different issue.

[The Chair, Conservative, Ed Fast]

Unfortunately.

[Sharon Rosenfeldt]

But regarding the 15 years, unfortunately, the amendments in the new legislation, Bill C-45, were too late for us. So we did have to go through that hearing.

[The Chair, Conservative, Ed Fast]

Ms. Rosenfeldt, unfortunately, I have to cut you off there because we're two minutes over our time.

[Sharon Rosenfeldt]

Okay.