Evidence of meeting #46 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 murder.
A recording is available from Parliament.
Professor, Queen's University, Faculty of Law, As an Individual
I appeared in front of the Senate when the Senate committee amended that.
Conservative
Professor, Queen's University, Faculty of Law, As an Individual
Yes, and as I point out in my brief, there's going to be much more delay in the criminal justice system if you add those layers on. To suggest that this has been done to reduce delay is unfortunate.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
So I'd be safe in saying that you don't generally support the government's law and order agenda.
Professor, Queen's University, Faculty of Law, As an Individual
You'd have to give me an example, but I think criminal law policy should be determined by Parliament and based on evidence, experience, reason, and judgment—not on ideology. These bills represent what criminologists call “penal populism”. It's a way of pandering to an electorate by creating fear, and I think that's unfortunate and unbecoming of this body.
Conservative
The Chair Conservative Ed Fast
I think we're at the time the bells will start ringing. Perhaps I could get the will of the committee. Is there interest in coming back after our votes?
Monsieur Lemay.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Chairman, because of the tributes to Mr. LeBlanc, the vote will be somewhat delayed. We have been told it will be at approximately 5:40 p.m. So, we are able to continue a few minutes longer.
Conservative
The Chair Conservative Ed Fast
I wasn't aware that the vote was pushed back. Thank you for that clarification.
Mr. Bagnell.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
Mr. Head, when the minister and officials were before the committee, we asked about the percentage of reoffence among the people who had been released. I thought it was kind of astonishing that the figures they gave suggested that the recidivism rate was much lower than the prison population in general. That would lead to the question of why, as a committee or as a government, we would have as a priority maintaining in custody not the most dangerous offenders, because of course almost everyone gets out, and the most dangerous ones are the ones who will reoffend.
Commissioner, Correctional Service Canada
I think what you see is the impact of individuals who have stayed in an incarceration setting for a much longer period than the general population. Once they come out, it seems that they're much more amenable to the supervision conditions placed on them. There's a huge readjustment. They're trying to get on with their lives. We do see with these individuals, particularly those who have been released, that they're not actively involved in committing other offences. They do get revoked for non-offence activity, such as not following their conditions, but not at any greater rate than other offenders. In terms of involvement in other criminal offences, the rate is lower. But we're talking about a very small population here as well.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
Mr. Manson, I know you didn't finish what you were going to say. I'll give the rest of my time to you to finish what you wanted to say.
Professor, Queen's University, Faculty of Law, As an Individual
No, I've covered all the points I wanted to cover, other than some specific arguments. I'd rather listen to questions and respond to them.
Liberal
Larry Bagnell Liberal Yukon, YT
In the case of cruel and unusual punishment--I think the witness last time talked about a woman who shouldn't have been there in the first place—by putting in this law that says that someone would never get out before 25 years, might a judge be forced to say, “Under the circumstances of this murder, that would be cruel and unusual punishment, and I can't now convict her, although I would if I knew that there was a chance after 15 years”?
Professor, Queen's University, Faculty of Law, As an Individual
In the criminal process there's a distinction between the adjudication of guilt and the sentencing stage. In murder cases, other than for second-degree murder in the 10- to 25-year period, the sentence is mandatory. A judge would have to make a constitutional ruling on part of the regime in order to avoid the mandatory nature of the regime.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
You were pretty quick to jump on Mr. Rathgeber about his logic. Let me use the word “tautology” on you. You seem to know logic.
You said that the Supreme Court of Canada accepted 25 years because of the faint hope clause--
November 4th, 2009 / 5:20 p.m.
Professor, Queen's University, Faculty of Law, As an Individual
I didn't say that. I only took that into account.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
--because it allowed the “out”, if you like, based on what Parliament decided. This is a new Parliament. It's a new day. If it were to decide that 25 years was the period before there was eligibility, is it not the case that the Supreme Court of Canada would respect that as a policy decision?
Professor, Queen's University, Faculty of Law, As an Individual
No. The Supreme Court....
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Your argument is that they would go back to the finding of a previous Parliament. That was your argument.
Professor, Queen's University, Faculty of Law, As an Individual
No. My argument was that they would have to look at the purpose and effect of the sentence to determine gross disproportionality, which is the test for cruel and unusual punishment. They would do it afresh. They weren't being deferential to Parliament. They were saying that Parliament struck the right balance. That's not being deferential. That's agreeing that in terms of a constitutional minimum, Parliament, in 1976, struck the right balance. They would look at it afresh. So this is hardly tautologous.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Manson, are you the A. Manson who wrote, with P. Healy and G. Trotter, Sentencing and Penal Policy in Canada?