Thank you.
Good afternoon. I regret to say that I am not bilingual. I will therefore have to present my ideas and give my answers in English only.
I am here because I'm very concerned about this bill. It will place our sentencing regime, aside from those of countries that still execute people, among the harshest in the world and certainly in the western world. When I look at the minutes of the testimony, which I've read, particularly the testimony of the minister and those supporting the bill, I see no basis and no evidence for these amendments.
I see constant remarks saying, “This is what Canadians want.” I also see remarks about victims. I'm very respectful and sympathetic to victims, and I'll address that in a second, but I dispute the statement that this is what Canadians want. Just because you repeat something over and over doesn't make it true.
It's my view that if we look at the history of criminal law in Canada, the history of murder sentencing and what this Parliament did in 1975-76, what it did in 1997, and what this committee did in 1975-76, I would say Canadians respect the vitality of the human spirit. This legislation does not. This legislation wants to turn penitentiaries into ashcans of human wreckage.
I have studied this 15-year review process. I've written about it. I've been counsel in two cases and advised a number of lawyers, so I can talk to you if you have questions about how these processes work.
You've heard a lot of data. I'm not going to go through much of that again. I did prepare a submission. I had only a few days' notice about this hearing; I hope it's been translated. I'm not sure if it has, but you will have it.
The key is this. This process was created in this committee on a motion by a member named Stuart Leggatt in the spring of 1976. The original proposal for the 15-year review arose like this: the Solicitor General, who was Warren Allmand at the time, had his people do studies of Canada's experience as well as the international experience with the release of murderers. The data suggested around 10 to 15 years as the effective minimum ineligibility period.
Of course, if capital punishment was abolished, there would be a mandatory life imprisonment sentence. We're only talking about parole eligibility. The Canadian Association of Police Chiefs had taken the position that they supported retention, but if capital punishment was going to be abolished, they felt the minimum should be 25 years. It was in Warren Allmand's office that they came up with the idea of adopting 25 years while creating a window after 15 years. They took the view that the decision should be made by three judges.
It was in this committee that Stuart Leggatt said, “I was a practising lawyer; I trust juries.” This committee amended the bill to give the decision-making role to juries. These are Canadians, and if you look at the statistics from every province, while sometimes you see a number saying that 83% succeed, that's completely disingenuous and misleading, because in fact fewer than 19% of eligible prisoners apply. There is a process of self-selection.
I haven't done it for the past few years, and I regret that, but I used to travel to lifers' groups in the various penitentiaries around Kingston to explain this provision to prisoners. Afterward I would always talk to people about their individual cases. There is a process of self-selection. There are people who want their cases to remain quiet. They don't want to see them on the front pages of newspapers. There are people who have seen the rigours of these applications; there are people who are worried that an unsuccessful application may prejudice a future parole hearing. There are also people who just know they've not made much progress, and they're bad cases. That's why you see fewer than 19% applying.
At the end of the day, my calculations say 15.2% of eligible prisoners have received some relief. When I say “some” relief, I mean they're not made immediately eligible. A few are, but I've seen cases of people being made eligible when they served 17, 18, 19 years. The jury determines what the reduction will be.
In 1997 the provisions were amended to require a unanimous jury for reduction, but the actual reduction is left to eight out of the 12. It can be 19 or 20 years. They can set the time to whatever they want.
My point is this: is there a basis for this very harsh move? Ms. Jennings isn't here, but when I read the proceedings of the meeting on October 19, I noticed that she engaged in a debate with the minister about constitutionality. However, they were only talking about retroactivity, and on that point of debate the minister was right. He didn't cite it, but the case is R. v. Gamble. People in Canada are entitled to be sentenced, which includes having their parole eligibility determined, by the law as it stands at the time of the offence. But that's not the issue. The issue is the constitutionality of a murder regime set at a minimum of 25 years.
You'll see on page 3 of my submission that in 1990, when our Supreme Court constitutionalized the 25-year parole ineligibility in the Luxton case, it did so taking into account as part of its decision-making matrix the 15-year window and that possibility. If you remove that, the whole question of constitutionality is back on the table. As well, in that case there was no evidence about the deleterious effects of long-term confinement, either in general or on particular people or on groups of people. Next time there will be evidence.
So this is a bill that is constitutionally vulnerable, yet the minister comes here and tells you, “No, no, no”. I don't know that he even considered this issue. You certainly can't see it from the minutes.
Let me say a word about victims.
I accept that some of the families that have survived murder would support this legislation. It certainly wasn't the case when I was a practising lawyer, but now victims do participate, if they choose, in the criminal process. They can participate at every level of the 15-year process if they choose. We've recognized that providing these participatory opportunities to victims is an important and valuable aspect of the criminal justice system. One must respect and have sympathy for the tragic losses and grief that victims have suffered.
Yet we all experience grief in different ways, don't we? There will be myriad responses. While one needs to listen to the voice of victims, sound penal policy must be based on a set of values grounded in an experienced and reasoned judgment. It was over 900 years ago that we took penal policy out of the hands of victims. In this country it's now in the hands of parliamentarians. We expect them to have a full debate, ask hard questions, and produce rational, fair penal policy based on evidence, not emotion.
I have addressed in my submission what I call the procedural aspects of Bill C-36: the 90-day window, the five-year delay. Those would relate to those people currently in jail who have the opportunity of the 15-year review. Again, there's no evidence as to why these are necessary; it's pure harshness for harshness' sake.
The 90-day window is completely unrealistic as well. There will be mountains of files that lawyers need to go through. Plus, I don't know if anyone's ever told you this, but when prisoners are eligible for 15-year review, the juries are picked in the place where the offence was committed. Not many prisoners....
I waited. I would appreciate it if you wait as well. Thank you.