Evidence of meeting #33 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was application.
A recording is available from Parliament.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
I couldn't have summed it up better myself, Mr. Woodworth. That's exactly what the case will be.
Liberal
The Vice-Chair Liberal Brian Murphy
Minister, your allotted time is up. All of us want to thank you for coming.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Mr. Chair, it's 4:27. The minister was scheduled to be here until 4:30 and I have two short questions.
Liberal
The Vice-Chair Liberal Brian Murphy
Well, I didn't get a question.
If I may, with the committee's indulgence.... What do you think, Minister--as your final two-and-a-half-minute question--about the argument that penitentiary officials, corrections officers, will be put in harm's way by virtue of the allegation that a person without hope, faint or otherwise, of obtaining parole might turn inside as more of an enemy of rehabilitation than a product of it? It's an argument that's been made, and we expect to hear evidence from corrections officials.
Conservative
Rob Nicholson Conservative Niagara Falls, ON
I think what you'll hear from Correctional Services Canada is that they put a management plan in place to minimize the risk to themselves, to mitigate the opportunities for the individual to inflict pain on himself and others around him. So our system is well-equipped to handle individuals who may be of danger to themselves and to their fellow inmates and to the correctional services officers. I'm confident in the individuals that we entrust with the incarceration of people in this country.
Again, I will say finally that this is a bill that will be very much welcomed by the general public in Canada, in particular those victims who have had the unfortunate experience to become a victim at the hands of a murderer in this country.
Liberal
The Vice-Chair Liberal Brian Murphy
Minister, my BlackBerry reads 4:29 and some. I think you've discharged your duty. We appreciate you being here.
No objections from Mr. Lee or otherwise, I thank you for coming. We're going to ask the justice officials to stick around for questions.
It says 4:30 officially on my BlackBerry now, so we're good.
Thank you, Minister.
Mr. Lee, you have five minutes.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
I could have used the two, but I'll take the five.
Are we okay to proceed now?
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
There are two additional small items I wanted to cover.
I want to ask if the provisions in the bill affect in any way the current judicial screening that is applied to parole applications by lifers between 15 and 25 years. These are the judicial screening, essentially the judicial permission sections of the Criminal Code now that must be met when a lifer makes an early application under the current faint hope clause. There must be a permission or decision of a judge that allows that application to proceed before it proceeds. I'm wondering if this bill affects those provisions in any way.
John Giokas Counsel, Criminal Law Policy Section, Department of Justice
Yes, it will raise the threshold test. Right now, at stage one, which is applying to a judge, an applicant need only show a reasonable prospect of success. If Bill S-6 becomes law, that test will now be a substantial likelihood of success. This is a term that is found in two Criminal Code provisions in the Youth Criminal Justice Act and in other federal statutes.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you for clarifying that. I'm a little puzzled about why this wouldn't have been included in the list of retrospectivity contained in the statute. Are we not in fact changing that provision as well for lifers?
Counsel, Criminal Law Policy Section, Department of Justice
Yes, the Criminal Code will be amended to replace “reasonable prospect” with “substantial likelihood”.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
We have to be honest then. In terms of this bill importing retroactivity or retrospectivity, we have now found two situations, two retrospective or retroactive applications. One is in posing this relatively short 90-day window for applications, which didn't exist before, for people already convicted and serving life sentences, and the standard on the judicial screen has been altered, in effect raised beyond what it was before. Are those not retroactive changes to a sentencing regime that was in place for people previously convicted?
Counsel, Criminal Law Policy Section, Department of Justice
There's a distinction to be drawn between retroactivity and retrospectivity. I don't want to get too technical, but a retroactive application would change the substantive law. It would attach new legal consequences to something that's already happened in the past. In a sense, it would be changing the law as it was in the past. The minister stated during his speech that this is not permissible under the Constitution.
Instead, what we're doing is we're attaching new legal consequences in the future for events that occurred in the past, and these changes are procedural. I don't have the case law with me, but there is case law stating that this type of change, what we're calling a retrospective change, will pass constitutional muster.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Thank you for clarifying it. You've done it very well, but they are retrospective in nature, and that's fully agreed on by the Department of Justice. Is that correct?
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
With respect to the 90-day window for applications, where did the 90 days come from? Does anybody know?
Counsel, Criminal Law Policy Section, Department of Justice
The 90 days was considered to be a reasonable period of time to actually bring the application forward, but as the minister has explained, and as correctional officials will explain when they come here, prisoners are assisted well before the end of the 15th year to get their materials together. The three months is simply to file the application. They don't have to have the whole procedure done in three months.
Liberal
Derek Lee Liberal Scarborough—Rouge River, ON
Who determined that 90 days was a reasonable period, given that it is retrospective in nature and that one might argue if it is not found to be clearly reasonable, it might be labelled or described as an arbitrary measure?
Catherine Kane Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
With respect to most proposals for criminal law reform, we look at various options, and the model that was agreed upon was one that applied three months to being the application, 90 days, rather than guessing which particular three months applied. As my colleague indicated, that was considered to be a reasonable period of time for a person to bring the application for the process after a 15-year period or after waiting the further five years, given that the inmate has a great deal of lead time to start to gather the material they'll need for that application process.
Again, part of the rationale for having any time limit on it is so that once that period of time expires, all those other persons affected by that know that the application can't be brought then until the further five years.
Conservative
