Justice Committee on Nov. 16th, 2010

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 35 of the Standing Committee on Justice and Human Rights. Today is Tuesday, November 16, 2010.

You have before you the agenda for today. You'll notice we're continuing our study of Bill S-6, An Act to amend the Criminal Code and another Act, essentially dealing with the faint hope clause.

Just as a note for committee members, I'm hoping to leave a little bit of time at the end of the meeting to deal with Mr. Dechert's motion. I believe it was properly tabled, so he's open to having it discussed at the end of this meeting.

We have two panels today on Bill S-6, and the first one will be for an hour.

I want to welcome our witnesses. First of all, we have, representing Correctional Service Canada, Mr. Don Head. Welcome back to our committee.

We also have a National Parole Board representative, Marie-France Pelletier. She is the executive vice-chairperson. Welcome.

Finally, we have the Barreau du Québec, represented by Gilles Trudeau. Welcome to our committee.

Each of you has up to 10 minutes to present, and then we'll open the floor to questions. If you finish early, that's great. The more time we have for questions the better.

Why don't we start with Mr. Head.

[Don Head, Commissioner, Correctional Service of Canada]

Thank you, Mr. Chair. I'll actually try to keep my comments under the 10 minutes.

Good afternoon, Mr. Chair and committee members. Thank you for providing me the opportunity to come before you today to discuss Bill S-6, which will eliminate the faint hope clause.

As you may recall, I appeared before you one year ago to discuss Bill C-36, which sought to achieve the same objective, and that is to eliminate early judicial review for those convicted of the most serious offences. Today I will cover two key areas in my introductory remarks, and of course I will then be happy to answer any questions you may have for me.

First I'd like to provide you with some key statistics related to our population of offenders serving life sentences who would be affected by this proposed legislation. Then I would like to provide you with a quick overview of Correctional Service of Canada's processes for supporting the courts when an offender decides to seek judicial review.

With respect to numbers, as of October 10, 2010, there were 1,508 offenders with cases applicable for judicial review. That is, they were eligible to apply to have their parole eligibility date modified. Historically, since the first judicial review hearing in 1987, there have been a total of 181 court decisions. Of these cases, 146 of the court decisions resulted in a reduction of the period that must be served before parole eligibility, and 35 resulted in a refusal.

Of the 146 offenders who have had their parole eligibility dates moved earlier, 144 have now reached their revised day parole eligibility date and 135 have been granted parole. Of these 135 offenders, 68, or about half, had no issue during supervision; 35 received a suspension but were not subsequently revoked; and 23 had their parole revoked. Seven of the 135 reoffended in a non-violent manner and two reoffended violently. Of the two offenders who reoffended violently, one was found guilty of two counts of assault with a weapon and one count of assault use of force, and the other offender was found guilty of one count of robbery.

While we're on the topic of numbers, I should also note that the proposed changes to the International Transfer of Offenders Act would have a minor effect with respect to judicial review. Of the more than 1,500 offenders who have been transferred back to Canada since the legislation came into force in 1978, only 28 were individuals serving life sentences. Of these, only nine are serving sentences for first-degree murder. Of the 300 active cases that we are currently reviewing for potential transfer back to Canada, only seven offenders would potentially have first-degree murder sentences. And I say “potentially” because international legal parallels are complicated, and each case has to be reviewed by legal experts to ascertain the appropriate equivalent sentence in Canada. All this being said, we would expect a negligible impact in Canada, as other jurisdictions as a general rule are extremely reticent to allow international transfers for what we could consider first-degree murder.

With respect to how Correctional Service Canada supports the judicial review process, this is governed by “Commissioner's Directive 710-5: Judicial Review”. Twelve months before the offender's judicial review eligibility date, an institutional parole officer, or primary worker in the case of women offenders, would meet with the offender to determine whether he or she intends to submit an application. In addition, our staff would advise the offender at that time of their responsibility to engage legal counsel.

Our staff also works with the offender to facilitate a transfer to the jurisdiction where the hearing will be held if the offender requests the move. Alternatively, participation at judicial review can also be accomplished through escorted temporary absences. In addition, staff would advise him or her to request access to their file through access to information, so this can be shared with their legal counsel. Furthermore, the parole officer or primary worker ensures that a psychiatric and/or psychological assessment is completed in the 12 months leading up to the application, as well as a judicial review report.

The judicial review report follows the form we use for determining parole eligibility. It covers six areas: the offender's social, family, and criminal background; his or her sentence administration dates; summary of transfers and any disciplinary actions; summary of the offender's performance and conduct; any assessments done by psychiatrists, psychologists, or elders; and, finally, the offender's personal development.

As you can see, CSC provides an invaluable contribution to the process that determines whether an offender is a suitable candidate for parole, whether that be through judicial review, as is the subject of this proposed legislation, or normal avenues for release.

As always, public safety is our paramount consideration. The offenders in our care all come from communities across this country and most will return there. It is the job of the Correctional Service of Canada to manage their sentence from the day they enter our facility, through their incarceration, and out into the community. We do so with a constant eye to achieving good correctional results for Canada and Canadians.

Mr. Chair, committee members, I thank you for your time, and I look forward to answering any questions you may have.

[The Chair, Conservative, Ed Fast]

Thank you.

I will move to Ms. Pelletier.

[Marie-France Pelletier, Executive Vice-Chairperson, National Parole Board]

Thank you, Mr. Chair. I would like to thank you for the opportunity to appear before you in connection with your consideration of Bill S-6, An Act to amend the Criminal Code and another Act.

I would first like to tell you a little about us at the National Parole Board. The Board is an agency within Public Safety that reports to Parliament through the Minister of Public Safety. It is an arm's length, independent administrative tribunal. The Board is responsible for making quality conditional release decisions for offenders serving federal sentences of two years or more.

We also make conditional release decisions for provincial offenders serving sentences of less than two years in provinces without their own parole boards. As well, we make pardon decisions and clemency recommendations.

The board is made up of 45 full-time board members, when at full complement, and to ensure that we process our cases as mandated under law, we may also use approximately 45 part-time board members.

One of the main pieces of legislation governing the board is the Corrections and Conditional Release Act. The CCRA provides for principles to guide the board in conditional release decision-making, most notably that the protection of society be the paramount consideration in the determination of any case and that the board make the least restrictive determination that is consistent with the protection of society.

The Board must first determine whether the the offender will not present an undue risk to society before the expiration of the sentence. It must also determine whether the release of the offender will contribute to the protection of society by facilitating the reintegration of the offender as a law-abiding citizen.

All decisions are based on an in-depth analysis of each case, and a through risk assessment based on all relevant and available information from police, courts, mental-health professionals, victims of crime, and others.

With respect to the faint hope clause, as we indicated to a Senate committee last June, the board has no role in the actual judicial review process itself.

If an offender's judicial review hearing is successful, impact on the board is minimal in that a positive judicial review decision results in adjusted parole eligibility dates. As you know, the offender is not automatically paroled. He or she must still undergo a hearing or a review.

Board members conduct a thorough risk assessment of all relevant available information, just as they would in any other parole case. If the board grants parole, the offender still remains subject to the original sentence imposed by the court, as well as to standard and, in some cases, special parole conditions.

Offenders paroled while serving a life sentence remain under Correctional Service Canada supervision for the rest of their lives, and they can have their parole revoked and be sent back to prison if they violate their conditions.

Judicial review cases are treated with the same rigour as other cases. Each case that comes to us is weighed on its own merits by independent Board members who receive intensive training on the requirements of the Corrections and Conditional Release Act, and in risk-based decision-making.

Thank you once again for inviting the National Parole Board to appear today and I will be happy to take your questions.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Monsieur Trudeau.

[Gilles Trudeau, Director, Office of Criminal Affairs and Matters, Barreau du Québec]

Good after noon, Mr. Chair, and members. I would first like to explain certain rules for how the Barreau du Québec operates and how it adopts its policies or positions.

With me today are Nicole Dufour and our articling student, François. I will be speaking on behalf of the Barreau du Québec.

The position I will be presenting today is the result of consultations held by a standing committee on criminal law at the Barreau du Québec. The members of that committee are professors, federal and provincial prosecutors and defence counsel. The Barreau du Québec does not take any position unless its criminal law committee has reached a consensus. So the comments I will be making represent the consensus in Quebec among professors, Crown prosecutors and defence counsel, and in our opinion this lends considerable weight to the Barreau's contribution.

We had the impression that the documentation provided to the Senate would be transferred to you; we have learned that this was not the case, so we will send the clerk of your committee the written position of the Bâtonnier du Québec.

Obviously, this is a reintroduced bill. The Barreau du Québec had taken a position when Bill C-36 was introduced, which is now called S-6. Given the extent of the amendments, we want to provide you with our comments.

The purpose of Bill S-6 is to amend the rules set out in sections 745.6 et seq. of the Criminal Code. If the proposed amendments are adopted, the bill that we knew as the "faint hope" clause will be eliminated for murders committed after this law comes into force and for individuals who are serving sentences. I will summarize it as follows: Parliament is deliberately complicating the application and eliminating judicial discretion, and is also using procedural subterfuges to introduce a mandatory 90-day deadline for making an application.

We would remind you of what Parliament's intention was when it enacted section 745.6. That provision followed on the abolition of the death penalty in 1976. For a person convicted of first degree murder, the sentence was then to be imprisonment for life with no possibility of parole before 25 years had been served. At the time, that parole eligibility period was described as a necessary compromise for abolishing the death penalty. The faint hope clause was then adopted to give the convicted person a glimmer of hope, to leave some incentive when such a severe punishment is imposed for the most serious crimes. It allows a convicted person to be granted parole before serving 25 years of their life sentence, if they show that they are capable of reintegrating into society and if they demonstrate good conduct in prison; I will add, exemplary conduct.

Given the possibility of the remission of what may be as much as 10 years of their sentence, an inmate has an incentive to mend their ways and adopt a course of conduct that will make their application for a reduction of the parole eligibility period more likely to succeed. The inmate is then better able to cope with the despair caused by sentencing someone to life imprisonment, because of the realistic possibility available to them of reintegrating into society before their life is over.

Considering that the objective of section 745.6 is to give a person convicted of murder a faint hope, to encourage them to change for the better, the Barreau du Québec wonders what motivates the government to deny the value of that objective. The Barreau du Québec has stated its views in the past on a bill with the same objectives, Bill C-45, which was introduced in 1994, at which time it stated that it opposed the proposed amendments to that section.

In the Barreau's opinion, the process set out in section 745.6 was working perfectly and did not need any legislative amendment. We believe it is still of the same opinion and the figures disclosed by Don Head prove very clearly that the system is working for people who are incarcerated for a serious crime. It is working, since out of the 4,000 and more people who have been imprisoned for sentences, ultimately only the most deserving have been able to pass the review, the review by a judge, first, and then by a jury. The jury is important here; it is the jury of the community where the offence took place, and it is they who are given the task of making the finding of guilt. They have the power, on behalf of the community, to allow the individual to apply to Ms. Pelletier so that hearings will be held in order that they might eventually be released.

The bill shifts the preliminary burden that the judge will have to consider and introduces the concept of substantial likelihood, when the burden is lower at present. That seems to us to be a way of further complicating the way this process is initiated, for a person who, notwithstanding the complete good faith of the Correctional Service, is an inmate who will have to make applications to obtain their files and deal with the delays and difficulty involved in obtaining complete documentation.

On that point, I know that the committee has heard the very eloquent testimony of Kim Pate, who told you about the maze she has had to navigate to help some women make their applications.

In Vaillancourt v. Solicitor General of Canada, the Supreme Court of Ontario held that the present review process struck a fair balance between the need to show clemency to a convicted person whose conduct while serving their sentence is good, which may contribute to their reintegration into society, and the interests of the community, which demands that the act that led to incarceration of the offender be denounced.

On that point, we want to draw your attention to the statistics. The Bâtonnier provided 2009 statistics; we have had the benefit of having up to date statistics. I also think those statistics speak volumes.

The Barreau is also concerned that the effect of the bill, if it is passed, will be to fetter judicial discretion. The Criminal Code provides only general guidelines that apply to the application, and under the provision of the Code the jury must make a decision based on the character of the applicant, their conduct while serving their sentence, the nature of the offence, and any other matters they consider relevant in the circumstances. That discretion is assigned to the jury. As well, when it refuses an application, the minimum time before making a new application would now be five years; currently, it is two years. This also fetters judicial discretion. The judge is the person in the best position to determine when a new application may be made. It would therefore be preferable to give the judge discretion to make five years the time for a new application, while making two years the minimum, rather than setting a mandatory minimum time of five years.

The Barreau du Québec is also concerned about the introduction of a mandatory 90-day deadline, when in many situations the person will have to apply for judicial review to the chief justice of the province in which the crime took place, which is often different from where they are incarcerated. So this is not a simple matter. It is so complicated, in fact, that there has been an agreement between the federal government and the provinces to ensure that legal aid schemes agree to pay a lawyer in each province. The file has to be transferred, and in some cases the records and documents have to be translated. While this is clear to us lawyers, it may be less clear for people who are not lawyers, in spite of the complete good faith on the part of the Correctional Service and the accused. In Quebec, we have a form about four pages long to be filled out to be able to make an application, which is examined by the Superior Court judge.

On behalf of the Barreau du Québec, I think that if the government's intention is to amend an Act to make sentences of imprisonment harsher, that is certainly not an intention supported by a criminological study of victims. We do not see how this bill could help victims; quite the contrary. We believe that in the Criminal Code as it now stands, all of the information needed for making victims feel safe and explaining the judicial process to them is there, specifically section 745.01, which requires that the judge read the sentence and, in passing sentence, tell the entire community that although the individual has been sentenced to imprisonment for life, they may, in certain cases and after a certain time, apply to a jury for the opportunity to apply for early parole.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to questions.

Ms. Jennings, you have seven minutes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chair.

I would like to thank the three witnesses for their presentations. I have a few questions to ask.

Mr. Head, if I am not mistaken, you appeared as a witness before this committee when the bill was considered during an earlier session of Parliament. At the time of the presentation you made in connection with that other study, were the figures the same as the ones you gave today?

[Don Head]

There has been a slight difference in the numbers, but that's just a result of a one-year change in the population.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

In the information you gave us today, there's nothing new, there isn't a new item, for example the possibility of saying that some have committed violent or non-violent acts, the nature of the violent acts, and so on. You were able to provide that information a little over a year ago, when you appeared before the committee.

[Don Head]

That's right.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I don't know whether you have read the testimony given by Kim Pate concerning the complexity and difficulty of preparing an application for judicial review, a faint hope application. She said the Correctional Service provides assistance, but recently the time needed for filling out and completing the file to obtain the documents with the application has been much longer than before. She is really afraid of the consequences if the government does not agree, for example, to extend the 90-day deadline or to allow the judge to have discretion to extend the deadline in cases where the inmate has not been able to get all the documents needed.

Based on your experience, do you think the process is not easy? You say you are starting to provide assistance only 12 months before the date. So I would like to know what information you have about how much time it takes, about the complexity, and for you to tell us whether there has been a change, recently, in terms of the time it may take.

[Don Head]

Thank you for that question.

We start the process 12 months before the eligibility date in terms of engaging with the offender. At that time, we engage them in discussion as to whether they're going to make an application for that first phase of screening. And if they indicate to us that they are, then, as I mentioned, we advise them to seek legal counsel. We advise them to make the proper request through access to information to get their file documentation. Then we'll start to work on the judicial review summary report, which takes us about six to eight weeks of parole officer time to complete.

That would be done during that 12-month period. So if 12 months before the eligibility date the offender indicates that he or she is going to make an application, our parole officers will start that process of gathering the information and starting to do the reports.

One of the things we do in terms of making sure that there is no bias in the writing of the reports is ask a parole officer who has not worked directly with the offender to do the preparation of the judicial review report.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Mr. Head, we heard that 90 days to prepare a request is simply unimaginable. Even a year, at times, is not sufficient, for a variety of reasons, such as the delay in getting legal counsel, for instance, or time for the inmates to get access to their actual files. In some cases, the inmates' files are locked elsewhere, and the inmates have to go through a process each time they wish to access their own files. We heard that even when legal counsel is found or assigned to an individual, getting documents through access to information....

We just heard from the Quebec bar that in many cases, or in a significant number of cases, these documents must be translated, and it's not just anyone who can translate the documents, because they have to be translated in a manner and by individuals who are certified so that the courts will accept them as being clearly representative.

So my question to you, given that you're a full party to accompanying the inmate, is whether 90 days is sufficient.

[Don Head]

Maybe as a point of clarification....

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Can you answer yes or no?

[Don Head]

I'm sorry, I have to add some clarification, because our understanding of the 90-day window is that the period of making the application is not necessarily the period of time required to do all the case prep. That's what we've been led to believe in terms of how this legislation has been written.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Really? Well, Mr. Head, it's not spelled out in the legislation that the 90 days is simply to hand in a form and that the supporting documents can follow. So unless the minister is agreeable to an amendment that would actually clearly specify that, then what I'm getting from you is that 90 days is not sufficient.

[Don Head]

If the offender indicates the full year in advance that he or she is going to make application, there normally is enough time for that kind of work. There is absolutely no question, Madam Jennings, that for somebody who has been sitting in a penitentiary for 15 years, not all the files are readily available, and sometimes we have to go back and get them. But again, that's why it's that much more important that we engage the offenders to let them know that the sooner they let us know they are going to do that, the sooner they can seek legal counsel and the sooner they can make requests for their information. But if they wait a month before their parole eligibility date, then obviously there is not going to be enough time to get into that window.

[The Chair, Conservative, Ed Fast]

Thank you.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Is my time is up?

[The Chair, Conservative, Ed Fast]

Yes, it is.

We'll go to Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I'm just going to ask one question, Mr. Chair, because I may not have the time to come back. I will then leave it to my colleague to continue.

Mr. Head, I need a number; there is one missing in the wonderful documents you sent us. On October 10, 2010, how many prisoners with life sentences were there in Canada?

[Don Head]

The total number of individuals doing life was 4,774.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Wait a minute.