Evidence of meeting #40 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 judge.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Joseph Di Luca  Vice-President, Criminal Lawyers' Association
Susan O'Sullivan  Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime

3:35 p.m.

Conservative

The Chair Conservative Ed Fast

I call the meeting to order.

This is meeting number 40 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, December 2, 2010. You've got before you the agenda for today. Today we're reviewing Bill C-48, An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act.

For the first hour we have with us the Criminal Lawyers' Association, represented by Joseph Di Luca, vice-president.

During the second hour of our meeting we hope to have with us Susan O'Sullivan, Federal Ombudsman for Victims of Crime.

Back to our first witness, Mr. Di Luca. Welcome back to our committee. I think you understand the drill. You have ten minutes, and then we'll open the floor to questions.

3:35 p.m.

Joseph Di Luca Vice-President, Criminal Lawyers' Association

Thank you very much, Mr. Chair.

The Criminal Lawyers' Association welcomes the opportunity to appear before this committee on the important issue raised in Bill C-48.

As many of you know, the Criminal Lawyers' Association is a not-for-profit organization founded in 1971. We represent over 1,000 criminal defence lawyers across the province of Ontario. The objectives of our organization are to educate, promote, and represent our membership on issues related to criminal and constitutional law.

Together with the crown attorneys, we represent the front-line workers, if you will, of the criminal justice system, and we share a direct and substantial interest in this and similar legislative initiatives. We also have experience in observing the impact that legislative changes have on how the system operates. As I am certain you all know, the criminal justice system is organic—the components of the system are in a delicate balance. The system is based on compromises, all aimed at achieving a variety of goals, from the protection of the public to the just and fair administration of punishment and the reform, rehabilitation, and reintegration of offenders.

Indeed, a long-standing hallmark of our justice system has been its measured and balanced approach to punishment. We pride ourselves nationally, and I dare say internationally, on our ability to mete out justice that is tempered. We don't simply lock people up and throw away the key; we hold out hope, some hope, even at times a faint hope. We balance the competing interests and try to make sure that no single ideology overruns all others. One need only look at the aims and principles of sentencing set out in the Criminal Code to see that this is the case.

It may come as no surprise to members of this committee that the Criminal Lawyers' Association does not support Bill C-48. In our view, this piece of legislation is looking for a problem, as opposed to being a piece of legislation aimed at fixing a problem. Put simply, I ask you what is the problem that this piece of legislation is aimed at correcting? Is there really a sentence discount for multiple murders, or is that an issue of optics, which, when properly understood, reveals no operative discount at play?

I understand that many people perceive that in cases where a person kills more than one victim, the sentence is not apportioned between the two crimes and that the optic is that the second murder is a freebie. That may be the optic; the reality, I submit to you, is different. First off, once convicted of one or more murders, the accused is sentenced to life imprisonment. In Canada, life imprisonment means exactly that; it's a life sentence. The possibility of parole, or the eligibility for parole, is a component of the punishment, but it does not change the actual sentence imposed, which is life in jail. That concept of life in jail is meaningful. Indeed, some offenders never get paroled; some die in jail.

The Supreme Court has noted the blunt fact that a life sentence is a life sentence in a case called R. v. C.A.M. They also noted that the possibility of parole does not operate to defeat the denunciatory or deterrent purposes of sentencing. This bill before you seems to implicitly suggest that multiple murders do not change the effective sentences of accused persons. I have two responses to this. First, where judges are determining parole ineligibility for multiple second-degree murder offences, I assure you that they will and are currently considering the multitude of victims as a very serious aggravating factor, resulting in an increased period of parole ineligibility. That is happening day in and day out. Second, in cases of first-degree murder, while the period of parole ineligibility cannot be increased beyond 25 years, the fact that an accused person has committed two or more first-degree murders is a fact that cannot and will not escape the attention of the parole board 25 years down the line. The reality is that those who commit more than one murder are ultimately punished more severely.

However, what this bill appears to do is inject an element of straight linear math into the equation. A single murder gets an accused 10 to 25 years minimum, a double murder should result in 20 to 50 years, and a triple murder perhaps 30 to 75 years minimum. The mathematical approach that's adopted in this bill has long been rejected in our courts. The concept of sentence totality, as it is known in the case law, prevents the simple consecutive addition of sentences and instructs judges to consider the net impact of a proposed sentence in view of all of the sentencing objectives. A sentence, no matter how serious the crime, should not be so entirely crushing as to obliterate any realistic prospect of release and/or hope for rehabilitation.

While the Supreme Court has rejected a fixed upper limit for numeric sentences, it acknowledges that:

After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span.

Noting that fact, the Supreme Court declined to set a cap on the upper limit of sentences but looked to the discretion exercised by judges. It noted that judges, using their good sense, would protect against unduly harsh fixed-term sentences.

Set against that backdrop, how realistic is it to expect that judges will start handing out crushing sentences based on a linear scale? I say it's not likely, and even then only in the rarest of cases--cases that I submit are already the ones on which the parole board is acting properly right now and denying release.

I ask you all to keep a statistic in mind--and I wish I could give you that statistic, but I don't have it. What is the average length of time that multiple murderers are spending in jail prior to being paroled? That's the number you need to figure out. Once you know that, you will see whether this piece of legislation is actually necessary on an evidentiary basis. In the absence of having that number--I couldn't find that statistic calculated anywhere--you're really guessing as to whether this piece of legislation is required. My guess is that if you find that number, you will see that multiple murderers are already spending much longer in custody and there is really no true net discount at play.

You'll be happy to know that unlike most other times when I'm here before you on a piece of legislation and I'm asked to comment on the constitutionality of it, in this case I don't think there is a constitutional problem with this legislation right now. And I commend the committee and the drafters of the legislation for this. The legislation, at a minimum, preserves an element of discretion on the part of trial judges. I submit to you that discretion, which provides an option to a trial judge, may ultimately save this piece of legislation from constitutional infirmity.

Having said that, I accept and see it as a problematic aspect of the legislation that the discretion is binary. It's a simple mathematical addition of one parole ineligibility period to another. It doesn't vest judges with enough discretion to pick a midway point--a softer stance somewhere short of, for example, in two first-degree murder cases, either 25 or 50 years as the option.

I think there still is a risk of constitutional attack when this piece of legislation, combined with other pieces that are currently under contemplation or study--for example, the repeal of the faint hope clause--are cumulatively enacted. I draw the committee's attention to the Luxton decision of the Supreme Court, which upheld the constitutionality of mandatory life sentences with 25 years of parole ineligibility. In that decision, the Supreme Court seemed to note that the presence of the faint hope clause at least gave some attenuation to the harshness of the sentence and helped find that piece of legislation constitutional. Removing faint hope and other matters seems to have placed that at risk.

I will wrap up because I know my time is short.

I ask you to keep the following in mind. A lot of the new crime legislation is designed to bring public accountability to criminal justice and restore public confidence. I have no quarrel with that objective; it's a decent and fair one. But at the end of the day, I ask this committee to consider evidence of the need for legislation--hard facts--before moving. The criminal law is a blunt tool and shouldn't be used for purely political ends in the absence of some demonstrated need.

Secondly, I understand that truth in sentencing is a catch phrase. I only ask you to keep in mind that truth in sentencing--with great respect--is not the issue; the issue is public education. If the public were made plainly aware of the dynamics and the sentencing statistics in relation to murder sentences, they would likely see what this panel and this committee are struggling with in a different light.

Finally, keep in mind that the concept of parole is a carrot on a stick for people who otherwise have no hope. If you put that carrot too far away on that stick--50 years in some cases--you are effectively leaving a small and likely neglected component of our society with zero hope for ever being rehabilitated or reintegrated into our community.

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

3:45 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We'll start our round. Mr. Murphy for seven minutes.

3:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Thank you.

Thank you, Mr. Di Luca.

This is a very interesting issue. Like any lawyer, I suppose, I can see both sides of the argument on this one.

Have you defended murderers?

3:45 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

I have many times.

3:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

It's interesting how phrases are used on both sides of this debate.

Since you're not in favour of this bill, I'd ask whether you agree with two phrases. The first is that the circumstances of every murder are different and a one-size-fits-all approach could well produce injustice in individual cases.

You'd agree with that.

3:45 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

I'd agree 100%.

3:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

The second phrase is that a fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

You'd agree with that.

3:45 p.m.

Vice-President, Criminal Lawyers' Association

3:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Isn't it curious that those phrases were lifted from the parliamentary secretary Mr. Petit's speech when he supported this bill? It's interesting that discretion can be used as an argument to keep this bill. It is one of the positive points you brought up about the bill. It's what we've been harping about for quite some time with this government. They've come around on the idea that judges are trustworthy with our laws, which is good--that's the good part; we're always looking for the good on that other side.

But let me put a hard case to you. In the late 1970s in my community, Constable Bourgeois and Constable O'Leary were murdered by Mr. Hutchison and Mr. Ambrose. I remember it as a kid. They admitted to the murders and were convicted. Of course, that was in the late 1970s, after the death penalty was repealed. They are now gradually coming up for parole.

I can tell you that to a person, Liberals and Conservatives--and even Bloc, if there were supporters in Moncton--would be appalled if they had the collective corporate memory of the people in the community that this can happen.

When you say it's not a problem, what you're really saying is we have to trust the parole board for this. I'm not sure, maybe that's a separate issue, because many people don't have faith in the parole board. Why should we have faith in the parole board? In that case, I'm guessing a local judge, local community, or local jury would have some influence in suggesting that those two individuals, Hutchison and Ambrose, should have got--and it's a clear case of two murders--parole ineligibility of 50 years. I can see that happening and a judge granting that if he had the discretion. It's a clear case to me.

Why should we trust the parole board to do what might have been a judge's job?

3:45 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

I have a couple of answers to that. One, the judges are sentencing someone 25 or perhaps 50 years before they are parole-eligible. So they are seeing a person in the span of time, likely at a point in time relatively close to when they committed the offence. It's likely they're seeing these individuals at their lowest, or close to it.

The criminal law is a blunt tool. We are all well aware of that, and at its margins that bluntness isn't nearly as nuanced as we want it to be, because Parliament has seen fit to enact a sentence of “life 25” for all first-degree murders, period, whether it's a very nasty first-degree murder or a less nasty one. I appreciate there's a range even amongst first-degree murders in terms of their calibre. But we have that one-size-fits-all sentence there.

What we did do, at least at the time, was vest the parole board with the discretion at a very long period of time away--and 25 years is a very long period of time--with the power, on an informed and nuanced basis, to look at how that person has reacted and responded to 25 years of incarceration, and then judge whether they are safe to be released. They are looking at and applying a very different test than what a judge is looking at.

A judge cannot, on the day of sentencing, say they will be safe to be released in 25 years from now or in 50 years from now. But at a certain stage the parole board does have the expertise, and it should have the expertise and trust of this committee, to sit there, on an expertise level, and say this person can now be released. I appreciate that 50 years, certainly in some crimes, like the one you just mentioned, obviously has a visceral good feel to it. You sit there and say that a person certainly deserves 50 years. But it's crushing.

3:50 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

I've only got a couple of minutes, and it's a different area. You say we don't have the statistics to find out what the average time served by a multiple murderer is. I don't think we've heard that either. But we do have the statistics on the average time spent incarcerated for first-degree murder: 28-some years, and 29 in the United States. But we have these statistics from other countries that are civilized western democracies and they are far less. Do you know why? Is there something different with the charging provisions?

3:50 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

This is perhaps a classic Canadian compromise, but in the bid to get rid of capital punishment, the trade-off was a sentence for first-degree murder, which was likely unheard of in terms of its length in other Commonwealth and similar countries. So it may have been the political cost, if you will, of winning the battle against capital punishment. But it has resulted in an incarceration rate that we as Canadians should not be proud of. We are neck and neck with the United States, and at that point much further ahead than other countries.

I think you're right. I'm not sure there's a difference in the charging, necessarily. I think it's just a difference in the availability of sentencing discretion and parole discretion.

3:50 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Is there first- and second-degree murder in the U.K., for instance?

3:50 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

I don't know the exact answer to that, but I do know there's an increased measure of discretion in terms of release that is borne out by the statistics, which in the U.K. are significantly lower than ours.

3:50 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

It's 12 or 13 years, I think.

Thank you.

3:50 p.m.

Conservative

The Chair Conservative Ed Fast

Monsieur Lemay, seven minutes.

3:50 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Colleagues, you are criminal lawyers. I would imagine you have already defended cases you knew were practically lost causes, or difficult to win.

3:50 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

This week?

3:50 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

I can tell you that you are not going to win this fight. To answer your question, it is going to be very difficult, given the position of the various political parties in this room, to prevent the passage of Bill C-48. Unfortunately, it will pass.

There is only one aspect of this bill that I find reassuring. It is the addition of section 745.51, giving judges some discretionary power, as you rightly pointed out. To respond to your first question, do you know why the Conservatives absolutely want this bill to pass? You simply have to read the short title, section 1, and you will understand their entire philosophy. In fact, they will get back to it later on. The section reads as follows: “This act may be cited as the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act”. That is quite something, isn't it! Obviously, that is the only thing some of us may agree on. Regardless, on this side of the table, we want to stop the passage of section 1. That is more or less it. I will tell you why.

The discretion provided in section 745.51 reassures me. I do not know how to ask you this question, dealing with violence in penitentiaries. I have probably done what you do today. I practiced criminal law for a number of years and defended individuals accused of murder, among other things. If there is no light at the end of the tunnel, if they see no likelihood of release, do you seriously believe that rehabilitation is possible, especially in double murder cases?

3:55 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

I think rehabilitation is a tough challenge on any given day, but the minute you snuff out the light at the end of the tunnel, or make that tunnel so long that you're really removing hope, I think you really run the risk of not only ending the hope for rehabilitation—and I agree sometimes it is just a hope—but also increasing the probability of violence within institutions, of losing control within the institution, because a person has nothing to work towards. Taking someone who is 25 years old, who committed the most horrific act, and saying, “If you are good, really good, at age 75 we can try you out for parole”, that person has no hope. They won't be bothered by any discipline. They're not going to care. There's just nothing, really, to live for at that stage. It's just unrealistic.

3:55 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Colleagues, with respect, you are going to be hearing about this. I do not know who, among the Conservatives, will speak to it, but you will see that this is their way to protect victims. I do not know if you view things as I do, but I doubt that 50 years of detention for offenders provide better protection for victims. Either way, some Conservative Party members would bring the death penalty back, and this is a softer option: you lock someone up and throw away the key for 50 years.

It should be noted that criminals like Clifford Olson do try to get parole. Clearly, the Conservative Party is engaging in demagogy here. Everybody knew, except for Conservative Party members, that there is no way the National Parole Board or even a superior court judge would ever have given that man parole. I would like to know what you think of that. We are stuck with this.

3:55 p.m.

Vice-President, Criminal Lawyers' Association

Joseph Di Luca

Yes, I know. To make it more problematic, the discretion is binary, so you're giving a judge a choice, which is very blunt. It's either 25 or 50 years. I would imagine that most judges looking at a person, given those two options, will err on the side of caution and go with judicial restraint and then turn it over to parole authorities. I would imagine that this is going to be a piece of legislation that is going to be used once in a blue moon, if ever.

3:55 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Thank you.

3:55 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

We'll move on to Mr. Comartin for seven minutes.