Justice Committee on Dec. 2nd, 2010

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

Thank you, Mr. Chair.

Thank you, Mr. Di Luca, for being here.

Some of the arguments we heard in the debate in the House before it came to committee were that we devalue the second or the third life. I challenge that. I find that a fallacious argument. In particular, one of the points I would like to make--and see if you agree with me--is that if you had a situation where there were convictions for multiple murders, and either at a subsequent trial or on an appeal the person is found innocent on one of them, do you agree that for the other, even if it's the second or third murder that they remain convicted of, they will still be serving the life sentence for the balance of their life?

[Joseph Di Luca]

That is correct.

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

That is not altered by an acquittal on one of the other charges.

[Joseph Di Luca]

Not at all.

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

With regard to the provision in the bill, proposed subsection 745.21(1), where the judge is required to put to the jury after conviction on first-degree murder whether they want to make a recommendation, I don't see any provision in the bill. I'm assuming I know the answer in advance, but will a person who is acting as defence counsel be given the opportunity to make submissions on that point?

[Joseph Di Luca]

That's interesting. The second-degree murder sentencing provisions right now allow a judge to put to the jury a similar question asking for a recommendation on the number of years for parole ineligibility. While it's not contained in the code, in practice most judges will allow counsel a few minutes to make submissions on the issue.

What's interesting is that one would expect that if the public safety were really engaged to the point where they thought all murderers should go to jail and die there, the jury recommendations would unanimously and routinely come back asking for maximum periods of incarceration. It's stunning to see how varied those sentencing recommendations by a jury are. You will oftentimes find one or two jurors at 10 years, a couple of jurors at 12 or 13 years, a few at 15 years, and one or two at 24 or 25 years. They cover the gamut. There is not consensus even amongst the very jurors who hear these cases.

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

In that light, if the practice remains the same, should this go through...and there is one way it won't go through, given the Liberals' attitude on this, which is that if we have an election and this government goes down. But barring that, this is almost certainly going to go through. If it does go through and the practice continues, you won't have any opportunity to put before a jury evidence such as the length of time first-degree murderers now spend in custody, will you?

[Joseph Di Luca]

Correct.

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

And you won't get any evidence before a jury on the fact that a murderer has not committed a subsequent murder once released by the parole board, will you?

[Joseph Di Luca]

The jury is going to be asked almost to flip a coin, without any evidentiary basis before them, because they're not going to have before them any evidence, even of the person's character or background or history or the factors that would go into a judge's decision. The jury won't have that. They're really being asked, “Look at this person. You saw what they did in this case. Tell us whether it's 25 or 50 years.” Or 10 or 20, or however they want to break it up.

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

They'll be faced with the same problem the judge has. They either can recommend 25 years or 50 years, but they don't have the ability to recommend anything in between.

[Joseph Di Luca]

Correct.

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

Do you have any idea of how many multiple murderers we currently have convicted in Canada?

[Joseph Di Luca]

I don't have the exact numbers before me, but I saw it in the legislative material prepared for this committee on this bill. The numbers of multiple murders are quite small when compared with single murders. It is a very small group of people. On a percentage basis, I believe it was 5%, 6% of murders in a year are multiple murders. I could be wrong on that, but it is a very small percentage.

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

Since 1997 none of them have been allowed out before they spend the full 25 years?

[Joseph Di Luca]

I wouldn't be surprised if that were the case.

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

In fact, none of them have been out, by my analysis of the numbers, in less than 30 years.

[Joseph Di Luca]

Sure.

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

If you do have a jury recommending it and a judge imposing the 50- or 75-year penalty before eligibility for parole, will the charter be invoked as an argument on individual cases as opposed to on collective ones?

[Joseph Di Luca]

I think the element of discretion may—may—save this provision. That's to be seen down the road--but yes, in a specific case.

Charter values obviously inform all decisions made in the criminal courts, and a charter value approach to looking at sentencing would certainly hold out some hope for an individual. So I could imagine that a judge looking at deciding whether to use the blunt tool of 25 or 50 years, viewing it through the charter lens, would certainly come to the conclusion that restraint and flexibility in a more nuanced approach would be appropriate and not apply it in the circumstances.

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

Mr. Di Luca, based on the experience we had in Canada before we did away with the death penalty, and faced with the experiences we're looking at in the United States, would you agree with me that the effect of this bill, if in fact it is imposed in any cases—and I agree with you, by the way, that it's probably going to be used fairly rarely, at least with our current batch of judges—will also inevitably lead, in every single case, to at least an appeal to the court of appeal of the province, and most likely most of these will also be appealed to the Supreme Court of Canada?

[Joseph Di Luca]

The minute you increase penalties, you will see not only increased litigation surrounding the penalty but prolonged litigation. Someone who has a 50-year sentence ahead of them has nothing to lose by trying to fight for everything they can.

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

In terms of protecting the victims from exposure to the faint hope clause, again we're going to have them exposed to trials—retrial at the appeal level and then a further appeal to the Supreme Court.

[Joseph Di Luca]

Sure. And what happens when one of the two murder convictions is appealed and the sentence is set aside? There needs to be a resentencing hearing because your parole ineligibility period will need to be reset in view of the fact that the person is no longer found guilty. You have to contemplate redoing a lot of sentence hearings, where there's victim impact, community input, and all that sort of material. That's a factor that needs to be contemplated as well.

And we know, just looking at the Court of Appeal for Ontario, for example, there are a fair number of murder cases that are redone. It's not an insignificant number of murder trials.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Mr. Rathgeber for seven minutes.