Justice Committee on Nov. 2nd, 2010

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair. Thank you to the witnesses for your attendance here today.

I certainly support this legislation, but I do have a couple of technical questions that you hopefully can help me with.

I'm having a difficult time wrapping my mind around how this legislation interacts with the International Transfer of Offenders Act. When my friend, Mr. Comartin, was questioning the minister, he cited a number of countries that have shorter average periods of incarceration for what Canadians call first-degree murder—and certainly even shorter than 15 years. I see in New Zealand it's 11 years; in Scotland, 11.2 years; and in Sweden, 12 years, and it goes on.

What would happen if an individual, a Canadian, were successful in applying to serve a sentence in Canada after being found guilty of what we would call first-degree murder in a foreign jurisdiction with a minimum sentence less than prescribed by the Canadian Criminal Code?

[John Giokas]

If the minimal sentence is less than prescribed by the Criminal Code, we go by the Criminal Code.

But we're talking here about a life sentence. There are two parts of the sentence. There's the actual life sentence and then the period of parole and eligibility that form part of the sentence.

The International Transfer of Offenders Act, as it reads now, gives transferred offenders the right to apply for parole after 15 years; they don't have to go through the faint hope process. The reason is that the faint hope process requires the application to be made in the jurisdiction where the murder occurred. In the case of a foreign offence or somebody who's been convicted of a crime abroad, that's impossible.

So the International Transfer of Offenders Act gives them a break and lets them go straight to the parole board. If Bill S-6 becomes law, those 15 years will change to 25 years, so they will serve 25 years without eligibility for parole, instead of the 15 years currently in the International Transfer of Offenders Act.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

And that's the case even in a situation where an individual was sentenced to something other than life in the country where he or she was convicted for what we would call first-degree murder?

[John Giokas]

Well, the provisions we're referring to are provisions where somebody has been convicted of an offence abroad that would be first- or second-degree murder if it had been committed in Canada. So they may not describe it that way abroad, but if it's equivalent, then for our purposes it is first- or second-degree murder.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay. Thank you. That clarifies one of my questions.

The second one is with respect to retroactivity. I understand fully that individuals who are currently serving life sentences will, for the most part, be unaffected by this legislation, at least with respect to the time in which they can apply. But there are some changes with respect to windows, the 90-day window, and then the time after an unsuccessful application when they can reapply.

Has the department done research on potential charter challenges regarding those procedural retroactive issues that might be faced by this legislation, assuming it gets passed?

[Catherine Kane]

Yes. As with all legislation, we look at the charter implications of it. The minister would not be tabling legislation if he had any reservations about the charter viability of this legislation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Are you familiar with what the defence might be to any charter issues regarding these procedural changes that current lifers would be facing once this bill becomes law?

[Catherine Kane]

Well, every charter challenge will perhaps be unique in terms of what's asserted and what grounds are asserted. We assume that charter challenges would perhaps be based on this being cruel and unusual punishment or another provision of the charter. We're confident that a defence can be mounted that this is a reasonable limit on any possible infringement of the charter.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Is there anyone else on the government side? We have two more slots.

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Sure. Thank you, Mr. Chair.

Perhaps I could direct this question to either Ms. Kane or Mr. Giokas.

Mr. Comartin and others have mentioned that in a number of other jurisdictions, the average time that murderers spend in prison differs from that in Canada. I'm wondering if you could give us a sense of some of those countries—in Europe, Asia, and South Asia—and perhaps just give us a sense of where Canada sits in the range.

[John Giokas]

I don't have those figures with me. I can tell you, though, that in those countries a sentence of life imprisonment is life. So what we're really talking about is when they are released from custody, the average figure for a number of jurisdictions--and unfortunately I am unable to list them--is something like 15 years of custody. In Canada the figure that has been cited is 28.4 years of custody for murder, prior to being released.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Do you have any data on China or India or the Philippines, any of those countries?

[John Giokas]

Some of the jurisdictions are a little difficult because they maintain the death penalty. So that tends to skew matters. But as I said, I don't have the data with me, but we certainly do have data.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

Ms. Kane, do you have anything to add to that?

[Catherine Kane]

No, but if the committee wants that information, we can undertake to provide it to them to the extent we can.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay. Thank you.

I guess what I'm hearing, Mr. Chair, is that Canada is a bad place to commit a murder, and that's okay with me.

Thank you.

[The Chair, Conservative, Ed Fast]

All right. Anyone else on the government side?

Mr. Petit, and then we'll go to Mr. Lee--I believe he wanted to continue--and then we'll go to Mr. Lemay.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Giokas, you used the terms “retroactive” and “retrospective” in your testimony. We know that, in law, retroactivity means that legislation does not go back or at least does not affect people. I am either not able to understand your testimony or I am missing something. Could you tell us what that means in terms of legislation?

[John Giokas]

Yes, I can explain it in two sentences. Retroactive legislation changes the substance of the legislation in the past. Retrospective legislation changes the procedure from the time an act enters into effect. So it does not change the substance of legislation in the past. We can say that retroactive legislation affects the substance and retrospective legislation affects the procedure.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you. We'll move on to Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I just have a quick question about the title of the bill.

In clause 1 it says “Serious Time for the Most Serious Crime Act”. It doesn't really refer to the sections of the Criminal Code at all. One still has just as foggy a notion about what the bill is aimed at as one would have from reading the bill as it is described on the order paper, “An Act to amend the Criminal Code and another Act”.

Does the Department of Justice take ownership of this bill title, or is it just something that gets dropped in between Sussex Drive and Wellington Street?

[Catherine Kane]

The title of the bill is part of the drafting process. The title of the bill must bear a link to the contents of the bill.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That would be helpful here, but “Serious Time for the Most Serious Crime Act”...you could say that about the whole Criminal Code. It's okay; you probably aren't able to link this with any specificity to the provisions of this bill, which deal with parole eligibility and parole eligibility dates and the process for applying for parole by those convicted of murder.