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.
