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.
Conservative
December 2nd, 2010 / 4:20 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you.
Thank you very much for being with us today.
I'm going to ask you, first of all, a bit of a technical question to clear up something in my own mind. I'm not familiar with the practice under the existing section 745.2, where a jury is entitled to make a recommendation regarding parole ineligibility.
Are you saying that a judge may not delay the discharge of the jury until after sentencing evidence has been heard?
Vice-President, Criminal Lawyers' Association
No. In fact, what ends up happening is that the jury comes back into the room and says, “We find the accused guilty of murder.” The judge then reads to them the provision out of the Criminal Code. The jury leaves the room, comes right back again in 5 or 10 minutes, or an hour later, and says, “Here's our sentencing recommendation.”
Conservative
Vice-President, Criminal Lawyers' Association
It's a practice.
What ends up happening is that at the sentencing hearing, which takes place a week, a month, or three months later, the jury recommendation is one of the factors the judge looks at in crafting a sentence.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
So it's just a question of timing, perhaps, that the jury couldn't be kept undischarged until the sentencing hearing occurs.
Vice-President, Criminal Lawyers' Association
Well, if it is contemplated that their role is to be more meaningful than just flipping a coin and deciding yes or no on consecutive sentences, yes.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
In any event, one way or the other, that aspect of things is the way it is now. This bill doesn't change that aspect of things.
Vice-President, Criminal Lawyers' Association
No. In effect, it just gives them one more question to answer.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Right.
Now, may I take it that you trust the ability of our judges to exercise this discretion correctly, keeping in mind that they well know it is a binary discretion, and that you trust them to exercise that discretion judicially?
Vice-President, Criminal Lawyers' Association
I'm in favour of judicial discretion and in fact firmly believe that it's not only consistent with the charter but is also consistent, ultimately, with Canadian practice, nationally and internationally.
I would trust the judges to do it, but they're going to be reluctant to engage in an exercise of discretion that's so binary.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Fair enough. I wouldn't attempt to tell a judge. In this legislation, all we're doing is giving the judge an option that the judge didn't have before. Isn't that correct?
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
If you're in favour of judicial discretion, I would think you wouldn't argue too strongly against giving a judge an option that the judge didn't have before.
Vice-President, Criminal Lawyers' Association
As I said at the outset, I applaud the existence of that discretion, and I think it's key in keeping this piece of legislation within constitutional boundaries.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
That really wasn't quite what I was saying.
Do you applaud the fact that we are giving a judge a discretion, an option, that the judge didn't have before?
Vice-President, Criminal Lawyers' Association
Absolutely. I'm happy to have it there, but I want you—
Conservative
Vice-President, Criminal Lawyers' Association
But I question the evidentiary basis upon which you see the need or perceive the need to do that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Well, let's talk about that for a moment, particularly with reference to the Clifford Olson case.
After all, what we're really talking about here is who makes the decision about parole eligibility at that stage, whether it is to be the judge or the parole board. Isn't that correct?
Conservative
