Justice Committee on Dec. 2nd, 2010

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Di Luca, for your presentation and your presence.

I have a number of questions for you, and I'm going to help my friend Mr. Comartin with one of his.

According to Corrections Canada, as of August 2009 there were 457 individuals in Canada who had been convicted and imprisoned for multiple murders. Of those, 26% have been granted parole.

I was alarmed by that number. First I thought it must be a misprint. I thought it must be 26, but actually it's 26%. So that's 100: one out of four. I've asked officials to verify that statistic and they tell me it's accurate. If that is in fact the case, how do you reconcile that with your suggestion in your opening that this is mere optics, that there is no operative discount? Twenty-six per cent of multiple murderers have in fact been paroled.

[Joseph Di Luca]

The discount only arises if you know when into their sentences they were paroled. Was it after 25, 35, 45, or 50 years? If you know the number when, effectively, they were paroled and how long they had served in jail, that will demonstrate whether there was in fact a discount.

Keep in mind that even as the system stands right now, a judge looking at sentencing someone for multiple murders is not going to give the minimum parole ineligibility period. They are going to give an enhanced parole ineligibility period. I would imagine that the parole board, even if a parole board were to look at two cases of first-degree murder, one where there was a single victim and one where there were multiple victims, would be more likely, everything else being equal, to grant parole more quickly to the person who only killed one person than to the person who killed two. It is going to be and is treated, no doubt, as an aggravating factor.

Until you know how long these multiple murderers are actually spending in jail, we are really guessing as to whether there is a discount.

Let me just add this. The sentencing discount is a perception, and I think it's an incorrect perception. It's recognized in law that you can't simply take out an adding machine and add up one life sentence of 25 years for every crime committed or for every offence. In fact, our Court of Appeal for Ontario has gone on about this at length. There was an old case, many years ago, when a fellow broke into 15 cottages. The judge looked and said, well, I would give you eight months in jail for one break-in, so eight times 15 equals x number of months in jail, and that's your sentence. The Court of Appeal said, look, we don't sentence people that way. That doesn't take into account totality. That doesn't take into account personal circumstances, a hope for rehabilitation, or a measure of balance.

That, on the one hand, I think tempers the argument. On the other hand, we need to have that number. We don't have the statistics. The people you are speaking of, this 100 people at 25%, are maybe getting out way later than other people similarly situated who have only murdered one person.

Having said that, we all know that the parole board has some expertise in this. The parole board is not letting out people by picking names out of a hat. Convincing a parole board to be released is a formidable task. When we saw Clifford Olson, that's a lost cause. He's never going to get parole. We trust our parole board to do exactly that. That's exactly what's happening. He's going to die in jail, in all likelihood. In that way, the system is working.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I know that a life sentence is a life sentence. Just about everyone in this room is a lawyer, and we all know that a life sentence is a life sentence. Do you think this is commonly understood in society? Do you agree with me that many members of civilian society, if I can use that word incorrectly--but I think you know what I mean, I mean non-lawyers--think that a first-degree murder comes with a 25-year sentence?

[Joseph Di Luca]

I agree that lawyers and civilians are two different things. I also agree entirely that it is probably one of the areas most ripe for public legal education. It is one of the most pressing and most common misconceptions, both in the media and publicly, at large. Most people will tell you, oh, come on, if someone kills in Canada, they're home in seven years, in five years, in nine years, in ten years, or whatever it is. They don't appreciate that life is life.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So you understand that to those folks, this is not some obscure remedy looking for a problem, as you said. This is a real measure to correct what they see as a sentencing discount in that individuals convicted of multiple murders are sentenced to 25 years for all of the murders they have committed as opposed to being sentenced individually for each one.

I'm not asking whether you agree with that common perception. But you will agree with me that this is a common perception that's out there.

[Joseph Di Luca]

I agree that it is a common perception. My only response is that it is more a function of our needing to educate the public, get the correct statistics, analyze the issue factually, and then act, if there is that need.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I agree with my friend, Mr. Lemay, that an individual like Clifford Olson would never receive parole, and thankfully this week he did not. For his edification, and perhaps you may wish to comment, the reason victims of Olson and other multiple murderers are victimized is that the very thought of the hearing and their ability to participate in the hearing, if they so choose, is revictimization. And they will tell you that. We had Sharon Rosenfeldt here on another bill, the faint hope bill. She is the mother of one of Olson's victims. She will tell you eloquently and passionately that every time she reads Olson's name in the paper, she is victimized. At least it's her perception that she's victimized.

What do you say to the people who have been advocating for this type of legislation with respect to their concerns that the perpetrators of the murders against their loved ones are in fact receiving sentence discounts?

[Joseph Di Luca]

I have nothing but great and deep sympathy for their views on something like that. It is obvious that they have been victimized not only by the initial crime but by the process as it unfolds over the years--there's no doubt. Ultimately, I don't think there's anything that can be done to remove the name Clifford Olson forever from the media or remove the due process that the Constitution accords him. However, we despise him. It's a byproduct and we seek to limit it, but I think it's an unfortunate but required and necessary byproduct of a system that accords due process to all, good and bad.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

With the few seconds I have left, you will agree with me that if this legislation were in place, and if Mr. Olson had to serve 11 times 25--I don't even know what that is--before he's eligible to apply for parole, and this will not be retroactive, that would spare the Sharon Rosenfeldt and the others like her of having to live through that nightmare every time there's a parole application.

[Joseph Di Luca]

I accept that. Taking that argument to the logical extension or conclusion, you then deny parole to anyone and give everyone life in prison without the hope of ever getting out, and you remove their name from any public display so that no one is ever revictimized by the person.

We administer justice a little more passionately or compassionately in Canada, not losing sight, though, obviously, of the victims who are troubled by it. We can't legislate only because a victim's family is going to be revictimized by an element of due process.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I see your point, and I thank you for seeing the victim's point.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Murphy for five minutes.

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

Thanks.

It's an interesting debate, because what Mr. Rathgeber's questioning led to is the agreement in the room that civilians outside the room feel that life is life and it isn't 25 or 28, which is the actual average statistic, and that there are murderers who get out after seven years or nine years, or what have you, through the working of the parole board--murderers, second degree, after 10 years, 17 years, or whatever.

That's the working of the parole board. You laud the work of the parole board because they are given the task of freeing people who have committed murders and have been given life sentences by judges. I don't think the public sees it that way. It seems like a bit of an error on the government's part not to look at--and maybe they are--either the educative aspect or the legislative aspect of the parole board. That seems to be, from their own mouths, one of the problems.

It's precisely because every murder is different. I don't think there's anybody in this room who thinks that Clifford Olson should be up for parole every so often, either. He should be in for 275 years, as the 11 sentences would be. It should never happen, but in the government's own words, they recognize the problem of murder in general.

Mr. Petit, again, the patterns of multiple murders are extremely varied. They range from cold-blooded serial killings and contract killings to unplanned killings in the heat of passion, parental killing of children, workplace killings of fellow workers, right through to killings by persons in delusional states cause by alcohol, drugs, and mental illness. I think what you're saying is there are cases where people should be given a parole eligibility because they might be worthwhile to society. I get that.

In the case of multiple murders, the Department of Justice official was exceedingly unhelpful in trying to see a way of amending the bill or seeing why there wouldn't be discretion. It seems to me that proposed section 745.51 could be amended at the end to give that judge the discretion between 25 and 50 years. He can't do it in numbers because it's the multiple of the number of murders there are, but somewhere between 10 and 20, somewhere between 20 and 40. If that were there, that would be true discretion, which the government, in its own words, believes in now with respect to judges, and I think on this side we believe in. Wouldn't that be a neat amendment? I don't think it would be outside the scope of the bill. What do you think of that kind of amendment?

[Joseph Di Luca]

I would absolutely applaud that sort of amendment because it does restore and reflect faith in the judiciary to do exactly what it is that we swear them in to do on a daily basis. They have the expertise to do that. They would have the evidence before them to do that. That measure of flexibility, quite frankly, would turn a piece of legislation that is likely never or rarely, if ever, going to be used into something that might, in the appropriate case, be used.

Let me add one other element. If you're going to look at the parole board, you can get a little more creative than using the blunt tool of criminal law and saying 25 or 50. How about perhaps introducing a screening function in the parole board? We do that with faint hope right now. You don't have an automatic right to a faint hope. You have to present your case first to a judge on paper. If that judge sees there's a reasonable prospect of succeeding, it then goes to a faint hope application. That was done to spare families of the victims from being retraumatized.

Why couldn't the parole board, quite frankly, exercise a screening function and look at an application on paper and say, “This is doomed, it's hopeless, and it's not going to go ahead to a full hearing”? A guy like Olson won't be sitting there having a public display every few years, traumatizing people. There are more creative ways to do it.

Certainly, injecting a true measure of discretion at the judicial level would be key in softening this bill and making it, quite frankly, more usable.

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

I think we're up now?

[The Chair, Conservative, Ed Fast]

One minute.

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

The aspect could be dealt with, I think, through an amendment. I would hope my friends would be open to that. It doesn't detract from the bill. It says that we're actually giving.... The fly in the ointment is that we agree there's judicial discretion here, but the discretion is that you can drive your car at 10 miles an hour or 100 miles an hour. Sometimes people want to go in between those. Sensible people do; sensible judges do.

Do you think judges would agree with this real discretion?

[Joseph Di Luca]

I think if you could find out, the judiciary's view would likely be that they have an expertise that's developed and that's based on an evidentiary foundation. The hallmark, if you will, of Canadian sentencing up until recent years has been the judicious exercise of discretion in crafting tailored and individualized sentences that try to balance all of the factors reflected in sections 718 to 718.2 of the Criminal Code.

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

Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go back to Monsieur Lemay for five minutes.

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

Mr. Murphy raised a point, but I wonder how we could amend the bill. According to section 745.51, the judge's discretionary power deals with his allowing or denying the application. That would mean 25 more years before a person is eligible. However, I believe Bill C-48 cannot allow for less than 25 years, as that does not appear in the bill. There would have to be an amendment to 745.2 or the beginning of 745, but that is not what we have here. Unfortunately, I was not expecting it, but it would seem to me, if my memory serves me correctly and based on what we have here, that the judge has no other choice. It is one or the other, either you grant discretionary power or not. I do not know if you agree with me or not. Otherwise, we would need to amend the beginning of section 745.

[Joseph Di Luca]

I agree that right now the choice is binary: it's one or the other, period. To change that, I agree that other sections of the Criminal Code would need to be rewritten to reflect an ability on the judge's part to exercise a more finely tuned discretion. It goes beyond the clause in this bill.

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

If I understand you correctly, and I agree with you, we cannot broaden the scope of Bill C-48. It is one or the other.

[Joseph Di Luca]

As it stands now, the way this bill is created, I agree with you. It's all or nothing the way this bill is worded. This legislation would need, in my view, a substantial rewrite, because it would have to impact a little more broadly the parole ineligibility periods, or at least give a judge the discretion to do it. Now, it's not a complicated matter. You can do it by reference to the sections that.... It's not complicated on my side.

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

It is not complicated for you, you are a criminal lawyer. It would not be for me either, nor for Mr. Murphy.

However, I believe that on the other side, it would be very complicated, because that is not what they want.

I have no further questions but I thank you very much.