Justice Committee on Nov. 18th, 2010

[Andrew Kania, Liberal, Brampton West, ON]

That's fair enough, and I appreciate that. In terms of that, in this analysis, because there will be some impact, are you aware of...? When I look at these statistics, for example, they show reoffending rates for 2008, and there was a handful of people who were sent back to jail for breaching parole conditions.

I'm trying to find, on an empirical basis, the problem we were trying to solve by coming up with this legislation. You have to balance that with the other problems that will be created, such as the capacity issue, and such as, I would argue, the greater risk to prison guards, who I understand posed this, because it detracts from the motivation of inmates to rehabilitate themselves and act properly in prison. So this is actually putting prison guards at risk.

I'd like you to comment on that, and to tell me whether there's anything on an intellectual basis or an empirical basis that you could point us towards that would justify this legislation.

[Howard Sapers]

I'll share just a couple of facts with you. The most current information I have is that 0.2% of offenders convicted of murder have had their day parole revoked due to the commission of a violent offence. Approximately 500 offenders serving a sentence for murder are released annually on day parole. It's about 0.2%.

Over the last five years, the successful completion rate for day parole offenders convicted of murder has exceeded 90%, and of those that we could consider failures--the other 10%--8.2% failed for technical violations of conditions of release, as opposed to being charged with a new offence.

[The Chair, Conservative, Ed Fast]

Thank you.

[Dr. Ivan Zinger]

I think you've quoted the statistical overview that was published by Public Safety Canada. I just want to make sure that it's clear here. That publication mentions that there were 173 court decisions with respect to the faint hope clause, of which only 130 were successful in the end. What's important is that those 130 have been since 1987. So there's a very small number every year. I want to make sure that it's not seen as 130 every year. That's not the case. It's been since 1987.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Ménard, you have five minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

You have well expressed your viewpoint. Let me say, in passing, that we are convinced of what you say. However, you are probably aware that, on the government side, members are not convinced. It is nevertheless important that the public be aware.

When the bill was presented by Warren Allmand, Solicitor General, in 1976, he stated the following, and I am quoting here from a summary provided to us by the Library of Parliament: A period of incarceration, with hope of parole, and with the built-in additional incentive for the inmate, and protection for the guards, of a review of that parole eligibility after 15 years is necessarily better than a sentence of death because it removes the possibility of an irreversible error of execution.

Indeed, the system, since 1976, has fulfilled its objectives.

[Howard Sapers]

I would agree. I think the existing provisions have met their purpose.

A life sentence in Canada is a life sentence. Offenders will serve a portion of that sentence in custody and will serve a portion of that sentence, if their risk is manageable, in the community.

We have experience in this country to show that conditional release that's properly supervised manages risk very well.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

We are not alone in the world. There are other advanced democracies with which we often compare ourselves. We have been provided with numbers. We compare ourselves with New Zealand, Scotland, Sweden, Belgium, Australia. Furthermore, I do not know why France is not included in these comparisons. Belgium is a partially francophone country. There is also the United States.

It is obvious that all civilized countries asked themselves this question when they abolished the death penalty —and most did so. What was this to be replaced by? Was it to be purely and simply life in prison? They all answered no. They opted, rather, for a long period of incarceration and the possibility of serving a shorter sentence, after review by a judge and by a jury — that is the case for us, is it not? The jury represents the people, so I believe.

The average period of imprisonment for offenders sentenced to life in New Zealand is 11 years; it is of 11.2 years in Scotland, of 12 years in Sweden, of 12.7 years in Belgium and of 14.8 years in Australia. The United States are the world champions with regard to sentences. I believe that the rate is 7.5 years higher than it is in Canada. The rate of incarceration in Canada is aligned with that of other democracies. However, even in the United States, the average is of 18.5 years, except for those cases where there is no possibility of parole. In those cases, it is 29 years.

According to predictions, we would reach the maximum length in the United States, which is exactly 28.2 years. It would be as though we made no allowance whatsoever for the possibility of early parole.

Is it the same thing for the other civilized countries the experience of which you are aware?

[Dr. Ivan Zinger]

To give you an idea, the comparative data for the various countries were gathered twice, to my knowledge, namely in 1999 by the Department of the Solicitor General, or the Department of Public Safety, and again in 2005 by the same department. I do not know how the countries were chosen. Usually, a request is made to various countries, and we await their responses.

If we compare Canada to other countries, we see that the system is much more punitive here. You are perfectly correct in underscoring that.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin.

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

Thank you, Mr. Chair.

Thank you, Mr. Sapers and Dr. Zinger, for being here.

To follow up on Mr. Kania's question, my analysis is that this program, the faint hope clause program, has the lowest recidivism rate of any program under our parole, under our parole for murder. It has the lowest recidivism rate of any of those programs. Can you tell me whether that's a correct conclusion?

[Howard Sapers]

I haven't done that analysis. In my experience, lifers tend to do well when they are supervised in the community. Since the faint hope clause provision was brought in under the code--and I stand to be corrected on this--I believe there were 14 reconvictions for violent crime over that period. I don't have the number in the top of my head as to what number the 14 is out of. But as I was saying, 500 are released per year, so it's a significant history we have with this.

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

Within the population that was released under the faint hope clause, there were only two who were returned to prison because of violent or serious offences. And in fact we don't know if there was any physical injury; we don't know the facts on that.

[Howard Sapers]

Yes, that's correct.

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

All right.

On the other point--I'm feeling somewhat that I should know this--have you identified any other jurisdiction in the world that uses the faint hope clause approach? I know most countries have a parole system that allows for applications, but is there one that has this model?

[Dr. Ivan Zinger]

Comparisons are actually quite difficult to do, because parole sometimes is decided by the courts and in some jurisdictions it's decided by the correctional authorities. I'm more than happy to share with the committee the 1999 study, as well as the 2005 update. I think the researcher may already have it, but I'm more than happy to share it. It may give you a bit of additional information on this matter.

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

To the researcher, do we have those two studies? I don't think I've seen them. They were from 1999 and 2005.

[The Chair, Conservative, Ed Fast]

You'd better repeat the study details.

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

Dr. Zinger, could you repeat the titles on both of them?

[Dr. Ivan Zinger]

Certainly. The first study is called “Life Sentence for First-Degree Murder--Canada and the International Equivalents: Eligibility and Average Time Served”. This is a document that was published by Public Safety Canada--the Solicitor General at the time--dated February 17, 1999. We just requested the update. The update is again a Public Safety Canada document called “Average Time Incarcerated for First-Degree Murder Conviction: A 2005 Update”. It basically highlights some of the legal structures of legal systems in various jurisdictions.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, are you asking whether that has been distributed to us, or whether our analyst is aware of those studies?

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

I'm asking whether they've been distributed. I think I've seen parts of these, but I don't think I've seen the whole study. There seem to have been excerpts, maybe in some of the briefs we've had from some of the witnesses.

[The Chair, Conservative, Ed Fast]

Certainly in the legislative summary there may have been reference to those.

He'll look into it.

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

Could you circulate those?

[The Chair, Conservative, Ed Fast]

At least get us digital copies.

All right, please continue.