Justice Committee on Nov. 16th, 2010

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

I want to explain the suspensions. Take the example of a client who is released, but who must not consume alcohol. If they are caught consuming alcohol, they can be suspended. It can be as simple as that, right?

[Don Head]

Yes, that's right.

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

So the system is working well at present. You have control of this system.

[Don Head]

Yes, we supervise them. We make sure they adhere to their conditions, yes.

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

I want to come back to the two individuals we were talking about earlier. One was convicted on two charges of assault with a weapon and one charge of assault with the use of force, while the other was convicted of robbery. Do you happen to know what sentences these two individuals received?

[Don Head]

Not with me, no.

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

Can you send them to us? I imagine those sentences are consecutive to the ones they are currently serving.

[Don Head]

I'll have to check. I can get you that information.

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

I would be very grateful, sir, if you would send us the sentences of these two individuals. Thank you.

[The Chair, Conservative, Ed Fast]

I want to thank all three of our witnesses for appearing, and also those who came with you.

Yes, Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Chair, I had sent a letter to Mr. Head asking for additional information. I ran out of time. I still want him to respond to that request for information. Given what happened the last time this bill went through, when we didn't have all the information, I want that information updated to October of this year.

[The Chair, Conservative, Ed Fast]

Does Mr. Head know what information you're referring to?

[Don Head]

Yes, I'll undertake to update the chart that was requested.

[The Chair, Conservative, Ed Fast]

Yes, and deliver it to the clerk's office.

[Don Head]

To the clerk, yes.

[The Chair, Conservative, Ed Fast]

Thank you to all three of you. I would appreciate your cooperation in clearing out and allowing the next three witnesses to take their places at the table.

We'll suspend for two minutes.

[The Chair, Conservative, Ed Fast]

Reconvening the meeting, we're continuing our review of Bill S-6.

We have two organizations and one individual with us during this second hour. First of all, we have the Criminal Lawyers' Association, represented by Michael Mandelcorn. Welcome back. We have the John Howard Society of Canada, represented by Ed McIsaac. Finally, we have Mr. Rick Sauvé. Welcome back.

As each of you know, you have 10 minutes to present. If you take less time, that's great; it means time for more questions from our members.

We'll start with Mr. Mandelcorn, please.

[Michael Mandelcorn, Regional Director, Criminal Lawyers' Association]

Thank you. The Criminal Lawyers' Association welcomes the opportunity to appear before this committee on the fundamentally important issues raised in Bill S-6.

The Criminal Lawyers' Association is a non-profit organization that was founded on November 1, 1971. Our organization represents approximately 1,000 criminal defence lawyers across the province of Ontario. The objectives of the organization are to educate, promote, and represent the membership on issues relating to criminal and constitutional law.

While the Criminal Lawyers' Association supports the proposition that offenders who have committed murder should only be released if they do not pose an undue risk to reoffend, we believe the amendments to the faint hope clause, as contemplated by Bill S-6, do not advance this goal. In particular, I ask you to note the points that follow.

First, all of the government's new crime legislation is designed to bring public accountability to the criminal justice system and restore public confidence. The faint hope provisions are about public confidence. It is the public--the jury--that hears the evidence and makes the decision.

Second, much has been said about the revictimization that is caused by the current faint hope provisions. We must remember that the convictions, by definition, are at least 15 years old before the matter gets to the jury. The convictions themselves are not in dispute. The person has either pleaded guilty or has been found guilty. This is a prime opportunity for victims to see what progress the offender has made over those intervening years.

Third, the provisions provide a much-needed incentive for convicted persons to fully utilize rehabilitation and programming while in custody. The offenders most likely will be released eventually; it is in our interest that they remain motivated to rehabilitate themselves.

Fourth, as noted in the legislative summary of Bill S-6, as of April 13, 2009, 991 lifers were eligible to apply for judicial review. There have only been 174 court decisions made, resulting in the reduction of sentences in 144 cases. It would appear that only those offenders who have the best chance of success are applying for a reduction of parole ineligibility.

Fifth, the National Parole Board did grant release in 131 cases, although we have no information as to how many hearings it took after the reduction in parole ineligibility for the offender to achieve some sort of interim release.

Sixth, I believe you just heard some of these statistics previously, but of the seven offenders who had their full parole revoked, two were revoked for breach of conditions, three for new, non-violent offences, and two for new, violent offences. Of the seven offenders who had their day parole revoked, five were revoked for breach of conditions, one for a new, non-violent offence, and one for a new, violent offence. Thus, the overwhelming majority of lifers who are released do not reoffend.

Finally, it is our position that the current vetting procedure in subsection 745.6(1) is sufficient to ensure that frivolous applications do not make it before a jury.

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

Now we'll move to Mr. McIsaac.

[Ed McIsaac, Interim Director of Policy, John Howard Society of Canada]

I thank the committee on behalf of the John Howard Society of Canada for the invitation to appear today. We appreciate the opportunity to meet with you to discuss Bill S-6.

In June 2010, I left with the clerk copies of our submission on the legislation presented to the Senate's Standing Committee on Legal and Constitutional Affairs. I made the same mistake as the Quebec bar, assuming that the submission would have been transferred over when the legislation moved.

There has been to date extensive and detailed discussion on the proposed legislation. As such, I will provide a brief opening statement.

The John Howard Society of Canada, as most of you know, is a non-profit organization whose mission is to promote effective, just, and humane responses to the causes and consequences of crime. The society has 65 front-line offices across the country delivering programs and services to support the safe reintegration of offenders into our communities.

The John Howard Society of Canada does not support this legislation. What we appear to have here is a proposed solution in search of a problem.

While the faint hope clause over the years has become synonymous with a claimed “soft on crime” approach, the data and our experience say otherwise. The faint hope clause, as you know, was introduced in 1976 as an offset to the abolition of capital punishment and the establishment of the 25-year minimum sentence without parole eligibility for first-degree murder convictions. Between 1961 and 1976, the average period of incarceration before conditional release was 15.8 years for those serving a sentence of capital murder. Currently, the average length of time served prior to conditional release is 28.4 years for first-degree murder convictions. How can this huge increase in time spent in federal penitentiaries, subsequent to the introduction of the faint hope clause, be portrayed as soft on crime?

The data also show, with regard to international comparisons with other western democracies, that the time spent in custody on first-degree murder convictions in Canada is double that of other jurisdictions. Again, where is the evidence of excessive leniency?

For those serving life sentences, the current process for obtaining a reduction in parole eligibility is rigorous. It includes reviews by a judge, a jury, and eventually the National Parole Board. The number of offenders applying under the provisions of the faint hope clause is low. According to the CSC figures—and they were adjusted somewhat today—1,062 offenders were eligible for review, yet only 174 applications had been received. These low numbers are evidence of an extremely limited self-selection process, resulting in very few, if any, frivolous applications coming forward. Those applications that are approved by a judge as having a reasonable prospect of success and which are then granted a reduction of time on eligibility by unanimous decision of a jury are, in the vast majority of cases, being granted conditional release by the National Parole Board.

So where is the problem with the current process that this legislation is attempting to address? Who within this process is being soft on crime: the judiciary, the juries, or the National Parole Board?

I would suggest the data clearly indicate that Canada, in comparison to other western democracies and our history prior to 1976, is in fact unreasonably tough on crime. Society is not well-served by long prison sentences. Legislation that increases the period of incarceration should not be accepted. This legislation is not an effective, just, or humane response to the reasonable management of life sentences. I recommend that the committee reject this legislation and turn its attention to a thorough review of how we as a country have moved from an average period of incarceration for those convicted of first-degree murder, from 15.8 years prior to 1976, to the current unreasonable 28.4 years.

I thank you for your attention and I look forward to your questions.

[The Chair, Conservative, Ed Fast]

Thank you.

I will move now to Mr. Sauvé.

[Rick Sauvé, As an Individual]

Thank you.

I'm pleased to have this opportunity to speak today. I'm here to put a face on who this legislation, the faint hope clause, applies to.

Over the past 30 years I've been a prisoner. I've worked with young offenders in the community after going through the faint hope clause process, eventually earning my parole. I'm now working back inside the system. I go back into federal penitentiaries and work with men serving life sentences.

There have been some misconceptions over the years about the faint hope clause. I've heard things such as “It's an automatic release for people going back into the community after 15 years.” There hasn't been one person at the 15-year mark who ever returned to the community--not one.

When people go back to the community where the crime was committed, they expose themselves, and it's a trial of their character by the people of that community. I've talked to hundreds of people in speaking engagements in high schools, universities, and public forums, and not one person has ever said that I should not have been returned to the community.

I trust the National Parole Board and Corrections. Many men are never going to apply for the faint hope clause, but it's one of the tools in Corrections that allows prisoners insight into themselves so they realize the only way they're ever going to return to the community is by working toward that goal. For many of the men I work with--I'm in prison five days a week seeing them--and some have been in for 25 years, some for 30 years, it's becoming a hopeless situation in prison.

I look forward to your questions.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll move to questions from our members.

Mr. Murphy, five minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

At first glance, this is the second time, for instance, Mr. Mandelcorn, that I've questioned you. I have a pretty good memory of what I asked you last time, so I won't ask you the same thing again.

Where I come from on this is...as you know, everybody in their community has an instance where a 13-year-old girl is gunned down by someone in a store. We have one in a small community like Moncton. Every so often there's a parole board application by the offender, who really isn't hero number one in a place like Moncton. So sympathies for the victims, the victims' families, are very much on the minds of people in these cases. If we can work out a way to minimize the re-victimization, I think we could get through to the argument that is so appealing from all of the panellists here, that it is, to use the phrase, a solution looking for a problem.

I fully respect, Mr. Sauvé, Mr. McIsaac, your testimony. It's very compelling. But from a legal point of view, what effect would these changes have in sentencing procedures? Would judges and lawyers now look at it and say one of the reasons, under clemency and prerogative, that this section 745 was brought in to counterbalance the taking away of the death penalty, was to give this hope, any type of hope, of rehabilitation?

Will it have an effect? I'm trying to get inside the mind of the criminal courtroom. Will there be, in the back of the mind of the judge, a thought...“I know it's supposed to be beyond a reasonable doubt and all that, but...”? Would it make the doubt even less? Could there possibly be fewer convictions because the judge knows, and perhaps the prosecutor, in laying the charge, that the consequences are going to be made much more grave I think--long term for a long-term offender? That's one question I have.

The other thing that troubles me is that we have lifers spending, on average, 28 years in prison. We like to compare ourselves not to the United States but to European countries, which on average have something like 10, 11, and 12. Is there something we're missing in the comparison? I'll ask Mr. Mandelcorn. Is there something in those jurisdictions that grade the laws differently? Is there a different nomenclature for the laws? Is there a different system? Why are they so markedly different from us on that?

So those are two, really, legal questions to you, Mr. Mandelcorn, because we only have five minutes.

[Michael Mandelcorn]

I'll answer your first question. The second question I'll defer, since I'm not, quite frankly, aware of the systems in Europe.

Much of sentencing and when people are released is based on public perceptions and public climate—quite frankly, the political climate. With respect, I would suggest that we're in a political climate where it's difficult for people to get released. Although the board certainly makes its decision on a case-by-case basis, I can't say that they would be immune to realizing what the public opinion is.

With respect to your first question, which I'm more comfortable answering, you have to note that there's no discretion in the sentencing. If a person is convicted of first-degree murder, it is life. It's not a matter of reasonable doubt. It's in front of a jury. The jury is not instructed as to what consequences occur should there be a conviction.

With respect to the slight amount of discretion, if it's a second-degree murder conviction and the judge can impose anywhere between 10 and 25 years of parole ineligibility, I suggest it's on basic sentencing principles that judges are instructed and taught not to take that into account. It's the crime that fits the parole ineligibility. If the particular heinous crime is above and beyond, if you will, a second-degree murder conviction, the person is looking at greater than 10 years. The parole ineligibility--that's what the judges look at. I would suggest that you do not look at the fact that this person may not get out because there's no faint hope anymore.