Justice Committee on Dec. 7th, 2010

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 41 of the Standing Committee on Justice and Human Rights. Today is Tuesday, December 7, 2010.

You have before you the agenda for today. We are continuing our review of 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 Anthony Doob, professor, Centre of Criminology, University of Toronto. We also have Allan Manson, professor, Queen's University, Faculty of Law.

During the second hour of our meeting, we will have three further witnesses on the same bill. That will wind up our witness list.

I remind you that at our next meeting we will be going to clause-by-clause consideration.

Professor Doob and Professor Manson, I think each one of you has been told you have 10 minutes to present. Then we will open the floor to questions.

I will begin with Professor Doob.

[Dr. Anthony Doob, Professor, Centre of Criminology, University of Toronto, As an Individual]

Thank you very much.

Professor Manson and I thought it would make sense for us to coordinate our comments because we think the most important message related to your consideration of Bill C-48 is something that probably has not been raised previously with you.

To understand the problems created by Bill C-48, one has to consider a few important issues. Most Canadians almost certainly believe that sentences should be proportionate to the offence and to the offender's responsibility for that offence.

That said, however, accomplishing proportionality is difficult, sentencing itself is complex, and sentencing issues are integrally related to decisions made within the correctional system.

Unfortunately, this bill provides evidence of an unwillingness to look at sentencing as a complex and integrated problem. When the government made major changes to sentencing in the mid-1990s, that was at best a timid first step. Most observers believe that those amendments changed few things, but they created a framework for future work that unfortunately hasn't happened. It's not clear that any government in the past 15 years has been willing to take sentencing seriously by looking first to identify what sentencing can and should accomplish, then examining circumstances in which sentencing is successful, and then fixing real problems, because there's an inconsistency between the agreed-upon principles and the outcomes of sentencing in the corrections process.

Obviously this government has been active. The last time I looked, since April 2006 the government had introduced about 60 bills that it calls “crime bills”. Most of them have much more to do with punishment than crime, but they have not made our sentencing or punishment system more coherent.

Unfortunately, as many people have almost certainly told you, you are not going to change crime through legislative changes in punishment, much as you might believe this to be true. These bills and changes to our sentencing system will not affect crime, just as this bill will not contribute to a fair or effective sentencing regime.

The most serious problem is that bills like Bill C-48 appear to give a message that the criminal justice system is completely broken, that judges and the Parole Board and the legislation governing the release of murderers must currently be unfair, and that only in 2010 did these problems get noticed.

Bill C-48 is not about balancing the rights of victims and offenders. It simply adds another level of presumptive punishment to a system that needs careful attention, not simplistic changes.

The difficulty is that you are dealing with problems piecemeal. Let's look at three bills: Bill C-48, which changes the nature of sentencing of certain murderers; Bill C-39, which changes the way in which parole decisions for ordinary offenders are made, among other things; and Bill S-6, which will abolish the faint hope clause for those convicted of murder in the future.

None of these bills respond to real problems with sentencing. Indeed, you haven't provided anything but conjecture about the need for change in these three areas. These bills are doing something else. They're tinkering with sentencing, but not looking at the serious, real problems, both with sentencing and the relationship between sentencing and conditional release.

As I have already mentioned, about 60 crime bills have been introduced in Parliament since 2006. From that, you'd think we had a crisis to deal with, and that the government either had no time to look at the problem as a whole or was incapable of doing so. We don't have a crisis in Canada on crime or on sentencing, but it may be that you as parliamentarians are not interested in looking carefully at something as serious as sentencing. So far, with the large collection of piecemeal legislation, in my view what you've managed to do is to make a complex and difficult-to-understand system more complex and more incoherent.

From the public's perspective, you've made things worse, in large part because of Parliament's unwillingness to look at the sentencing system as a whole. To understand what I mean, I think it's important that you look at some of what we know about matters related to parole decisions made in Canada.

The one thing that is clear about this bill is that the Government of Canada has little confidence in the parole system, just as I would suggest it has shown it has little confidence in judges in many areas of sentencing, and it also has little confidence in ordinary Canadians' judgments of those convicted of murder, as shown by your support of Bill S-6. Since this bill deals with homicide, and multiple homicides in particular, let's look at this phenomenon carefully.

Canada's homicide rate is no longer one of the highest in the western world. Statistics Canada reports that Scotland, the United States, Finland, Turkey, and New Zealand all have higher rates, and ours is more or less comparable to those of many European countries, such as France, Denmark, England, Wales, or Northern Ireland. More to the point, homicide rates in Canada are relatively stable.

In relation to this bill, most homicide incidents--94% in 2009--have only one victim. There were 35 incidents involving multiple victims last year. In the last 10 years, there was an average of 26 incidents a year--that's about 4.7% of all incidents--that involved multiple victims. Most of these--86%, in fact--involved people killing family or other intimates or acquaintances, not strangers, but our image of the multiple murderer is Paul Bernardo or Clifford Olson. Fortunately, that kind of person is rare in Canada and will almost certainly die in prison.

Our murderers spend more time in prison, on average, than people in other countries for which data are available. On average, those sentenced to life in prison for first-degree murder spend about 28 years in prison before being released or dying. This is higher than for countries such as England, Australia, Belgium, Sweden, Scotland, or New Zealand. We're not soft on murderers.

As you remember, when we do release those who have murdered, they're on parole for life. If you think that parole for life doesn't mean anything, you'd best request that some lifers come before you and explain what it means to be on parole for life. Parole is not a picnic.

The problem in doing the various things you are working on to lengthen the time that people spend in prison is not simply one of trying to hand down proportional punishments. It is that there is a huge financial cost involved. I know various members of the government have responded to people like me--people who have urged you to use prison resources carefully--by suggesting that if one life were saved, it would be worth it whatever the cost. I find statements like that to be remarkably naive and irresponsible. Let me use an example.

Let us imagine that as a result of this bill, something like 26 people a year--the average number of multiple murder victim incidents that we have over the last 10 years--were to go to prison for an additional 15 years, which is somewhere between the lengths of the parole ineligibility periods for second and for first-degree murder, in 15 years we would be at a steady state, with an average of about 390 extra lifers in prison awaiting parole eligibility time.

We have been told that the cost of the policy is worth it, because if a single life were saved, it would serve victims' needs. We'll get to whether we can expect a life to be saved in a minute, but that relatively small number--390 people on top of the 13,000 or so that we have in penitentiaries at the moment--would cost us about $40 million.

[The Chair, Conservative, Ed Fast]

We have a point of order.

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

Absolutely. I have tremendous respect for the witness, and he is certainly giving us some very important insight.

But, with all due respect for the witness, and again, I say this respectfully, the interpreters cannot keep up. We cannot follow his presentation. He is giving very important figures, but we have not gotten them yet.

I know it is easier for my English-speaking colleagues, but I, for one, want to remember those figures.

Could we ask the witness to slow down and give him a few more minutes, if necessary? Furthermore, are we going to receive a copy of his text, so we can refer to his presentation today?

[The Chair, Conservative, Ed Fast]

Professor Doob, I think it's the second time you've been asked to slow down. It's very difficult because—

[Dr. Anthony Doob]

I'm sorry. My text is a combination of typed and handwritten. I could make it available if somebody wanted it, but it would be easy for me to make the changes and email it back to you.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay, you'll have the blues, and you'll have the record once it has been translated.

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

No, no. With all due respect, Mr. Chair, my point of order still stands. I think that Mr. Doob should provide a copy to us, even if just the English version. We will see to the translation.

Everything he is telling us about the bill is very relevant, and I would ask, first, that he slow down, if possible, and, second, that he provide us with a copy of his presentation afterwards. That is extremely important, in our view.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay, there's nothing that can compel a witness to provide a document in both languages. In fact, a witness can certainly testify orally, and that forms part of the public record. There will be a written record of that, but we can ask the professor to provide, at the very least, an English version of the comments. You may have to go back yourself and listen to what you've said to properly transcribe your comments.

In any event, why don't you proceed a little more slowly?

Thank you.

[Dr. Anthony Doob]

Okay.

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

Mr. Chair, I respectfully disagree with you. The purpose of my point of order was to ask Mr. Doob to provide the committee with a copy of his statement today through the clerk, who will see to its translation. That is what I am asking.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay, that is exactly what I have requested Professor Doob to do, and to submit it to the clerk.

We can't compel witnesses to provide anything in writing if they don't wish to. There is an oral record and there will be a written record of it. I've also asked him, based on your request, to provide a written copy of his remarks, at least in English, to the clerk.

Professor Doob, please continue. Thank you.

[Dr. Anthony Doob]

Yes, I will make the changes that I've handwritten very quickly and send it back.

The point I was making was if you imagine that as a result of this bill something like 26 people a year—the number of multiple-murder incidents that we have had on average over the past 10 years—were to go to prison for an average of 15 years—somewhere between the lengths of the parole ineligibility periods for second-degree murder and for first-degree murder—in 15 years we would have a steady state of an average of 390 extra lifers in prison awaiting parole eligibility time.

We've been told that the cost of this policy is worth it because a life might be saved or that it serves victims' needs. We'll get to whether we can expect a life to be saved in a minute. However, adding that relatively small number of 390 people on top of the 13,000 or so now in penitentiaries in Canada would cost us about $40 million. This may not seem like much to you, but the question that needs to be asked is whether that is the best use of funds either for public safety and well-being or for services for victims. That's the debate that a bill like this stifles, because it commits scarce resources to a particular action without considering other possibilities.

Keeping people in prison longer has financial costs. Costs are zero-sum. Money spent on prisons means money not spent elsewhere. Let's put this in simple terms. We all agree that a man who, without real planning, kills his wife and family needs to be punished, and punished severely. Few would suggest otherwise, but the cost of a penitentiary inmate averages out to about $102,000 a year for one inmate for one year, so 30 extra years for such a man means about $3 million not spent on preventing similar crimes in the future, assuming that you're willing to spend it only in this area of public concern. That is, roughly speaking, the cost of an additional police officer for 30 years. If you want to think in terms of other interventions that have been shown to be effective in reducing crime, it is the cost of an active public health worker for 30 years. It could be whatever you want.

Surely if you were saying that you're willing to keep some hundreds of people in prison for extra years, at a cost of more than $100,000 per person per year, we should debate whether that's the best use of funds to reduce crime, increase public safety, or serve the very real needs of victims. There are choices.

The interesting thing is that we know that those who murder, when released, are not particularly dangerous. Figures from the most recently available performance monitoring report of the National Parole Board point out that of the 2,853 offenders on indeterminant sentences being monitored by the National Parole Board between 1994 and 2009, 81, or about 3%, were revoked for any form of violence, meaning anything from common assault to serious violence.

As you may know, a small number of those released on parole for murder do murder again. Indeed, a study of 4,131 people who had murdered and who were released between 1975 and 1999 showed that 13 of them murdered again, and here we do return to the adage, “If one life were saved, it would be worth it”.

Obviously these were tragic events, but the only way to have stopped them would have been to incarcerate all 4,131 forever because of the possibility that 13 of them, or three-tenths of 1%, would repeat their terrible crimes. The question then is whether the $300 million to $400 million needed to incarcerate these offenders would constitute the best use of public funds for public safety.

Could we save these lives, or ten times these lives, by investing elsewhere? That's the real policy choice. The choice is how many lives we save when we're talking about millions of dollars, not these particular lives. Presumably what we're trying to do is to maximize public safety.

This last fact underlines an important fact. Crime in Canada is not concentrated in a small group of people who can be identified as bad people in advance. Hence, solutions to crime are necessarily going to be difficult. Bills like the current one, which purport to be good news to victims and good news to Canadians, distort the reality of what we know about crime.

I would urge you to put your time and thoughts into addressing some of the real problems of sentencing and the administration of sentences in Canada. That way perhaps we could have a more coherent and sentenceable sentencing system than we have at the moment.

Thank you very much.

Again, I apologize for speaking too quickly.

[The Chair, Conservative, Ed Fast]

Thank you very much, Professor.

Were you doing a joint presentation with Professor Manson, or does Professor Manson have additional comments?

[Prof. Allan Manson, Professor, Queen's University, Faculty of Law, As an Individual]

I have additional comments.

[The Chair, Conservative, Ed Fast]

All right; please proceed.

[Prof. Allan Manson]

Thank you.

I am not bilingual, so I can articulate my remarks and ideas in English only, if that is okay.

I want to start by agreeing with Professor Doob that our sentencing system in Canada is in chaos. We lack workable principles. We lack appropriate guidance. We lack appropriate resources for options, including the state of our penitentiaries and prisons. All of this is being exacerbated by these piecemeal amendments to the Criminal Code.

I want to look at Canadian penal policy for a minute before we look at this particular bill. I would like members of this committee to recognize that for decades, for much of the past century, a lot of very thoughtful and serious work was done by a lot of people in developing Canadian penal policy. They were experienced, open-minded people, and included parliamentarians and even people from this committee. Behind that were consultation, debate, study, and data.

Look at the 1938 Archambault report: the principal author was J.C. McRuer. For those lawyers in the room, he subsequently became Chief Justice McRuer. The principal author of the 1969 Ouimet report was G. Arthur Martin, the dean of Canadian criminal lawyers, who later became Mr. Justice Martin of the Ontario Court of Appeal. A few years later, this committee worked very hard and very creatively in its examination of the legislation to replace capital punishment, and the members of this committee at that time deserve enormous credit. A few years after that, the McGuigan subcommittee, which came from this committee, also did an excellent study that produced changes to penal policy.

Now we've got Bill C-48. I'm going to talk about it conceptually rather than mechanically, but I first want to say something about making good penal policy.

It seems to me that there are two reasons one would reshape an aspect of penal policy. One is to fix a problem--to “address mischief”, as lawyers sometimes say. The second is to add a new direction, or maybe a new dimension, consistent with the goals of sentencing.

What's the mischief that this legislation addresses? I look at the short title, which reads, “Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act.” I was involved in my first murder case in 1974. I started studying sentencing as a graduate student in 1972. Until I saw the predecessor of this bill, I had never, ever, seen the notion of discounts for multiple murders. I don't know who can see that. I've never seen it mentioned. I've never heard a judge, a lawyer, a police officer, or a victim suggest that Canadian sentencing provides discounts for multiple murders.

What we do is provide a life sentence with 25 years of parole ineligibility. I can tell you from participating in murder trials, including ones in which people were convicted of first-degree murder, that the people in that courtroom appreciated that this is a life sentence, and that it is grave and harsh. I don't hear people suggesting it's lenient. I don't think there's any problem that needs to be fixed.

Moreover, let's look at the current system. The current system does respond to multiple murders. Section 745 says that any person convicted of murder who has also been previously convicted of murder is automatically sentenced to life with no parole for 25 years. In other words, two seconds equal a first automatically. That is taking into account multiple murders.

As well, in sentencing for second-degree murder, for which the parole ineligibility could be anywhere from 10 years to 25 years, judges are clearly required by the jurisprudence to take a look at the number of victims, as well as prior record.

So why is this bill here? Given the history that I outlined, I have high expectations for the people on this committee. I'd simply like to try to understand why it's here.

I see, Mr. Petit, that you were the sponsor of this bill, and I have some of your remarks. Why do we have this bill? I quote: “...to balance the need to protect society and denounce unlawful conduct...”. Professor Doob has explained that the risk represented by paroled murderers is almost non-existent. Where is the protection? Is there not sufficient denunciation in a life sentence? Are we now going to look at life-50, life-75?

Mr. Petit also said that “...the proposed amendments reflect the fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility...”. That's true. That's subsection 718.1 of the Criminal Code. A life sentence with no parole for 25 years is our harshest, gravest sentence. It certainly achieves that.

However, later he comments about groups in the community. I note the very felicitous language Mr. Petit used: “I am confident that the measures proposed in Bill C-48 will be supported by police and victims advocates...”. I don't want to challenge his confidence--that's up to him--but I've never heard police officers or victims' advocates saying we need life-50 or life-75.

Moreover, there's a suggestion that this is cost-neutral. Professor Doob went through some analysis of cost. He didn't mention one thing. What about the added cost to the penitentiary system? On the weekend I bumped into a group of former and now-retired and current senior CSC officers in Kingston, because I live in Kingston. I asked them what it's going to be like admitting someone to an institution when they show up with a warrant that says their sentence is life-50? What are you going to do for that person? It's mind-boggling. What is the correctional plan for a 30-year-old who might be able to go to the parole board when he or she is 80?

Then I also said to them, “What are you going to do if you don't have just one? What are you going to do if you have 12? What's that going to do to the environment in that penitentiary?”

Not only are the costs of this kind of proposal enormous, but no one has thought about them. That's my biggest concern. No one is thinking about this criminal legislation. What we are seeing is the parroting of remarks, starting over a year ago from the minister, that we know what Canadians want and what victims need.

Victims don't need this. Canadians don't want this. Talk to victims' advocates. They have concerns about being treated with respect, being treated with dignity, having opportunities to voice their concerns. They're not out there looking for harsher and harsher penalties. Let's be respectful to victims, and let's not use selected anecdotal comments to frame Canadian penal policy.

The last thing I want to say to this group is that Canada has a tradition of thoughtful, considered development of penal policy. What's happened to that tradition? Is it here still? If it's still here in this building, this bill should be rejected out of hand.

I'll be happy to answer any questions.

[The Chair, Conservative, Ed Fast]

Thank you. We'll go to questions.

Go ahead, Mr. Lee, for seven minutes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

I want to thank both of our witnesses, and I want to extend a big long-time thank you to Professor Doob. He has been a contributor to justice legislation for some decades now. I'm from the class of '88 and I recall that he made a huge contribution to the first report of this committee, which dealt with crime prevention. It's something we're still working on today.

I was struck by references in the testimony to the concept of discount. I don't want to dwell on it too much, because it may or may not survive our clause-by-clause review. Professor Manson, I think I know your view on it, because I think you expressed it, but I want to ask Professor Doob.

Might the reference to discounting in fact undermine public confidence in our justice system by suggesting that under this legislation, if a judge were not to decide on a second 25-year consecutive parole ineligibility, that he or she would be giving a discount? I'd like your reaction to that, because if I were a judge, I wouldn't like the look of this.

[Dr. Anthony Doob]

I would take the words that the legislation has, which is the requirement that the judge give reasons, but only in one direction. In effect that is a presumption, though it doesn't state it, so what this is going to do in those cases of multiple murders is create classes of them.

The classes are also going to be determined, to some extent, by something that is completely independent of the offence, which is, to a large extent, how much confidence the judge has in the paroling process. A judge who has confidence in the parole process is going to say, “I'm handing down a life sentence, and when that person is safe, I have confidence that the National Parole Board will be able to identify that”. Another judge might not have that confidence and therefore would, in effect, put his own stamp on it by giving consecutive parole ineligibility periods, so it seems to me that it creates mischief.

I have more confidence in the paroling process, and we're not talking about the faint hope clause. I had confidence in the paroling process, really, because of the three-step process. It was first with a judge, then with a jury, and then with the parole process.

When I look at the parole data, I don't see the National Parole Board being terribly easy on people. Most offenders who go into prison these days are being released at the two-thirds point, not prior to that. That's not a lenient parole board.

What's it's saying is that we're not confident, and we want you, the judge, to take the heat when you have something like a person who has killed his family before you. We want you to take the heat for why you didn't give that penalty. It doesn't seem to me that this is appropriate.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Can I ask both of you this question?

I've been shocked at how much meat-chart sentencing is coming out as government policy. I just call it “meat chart”; in other words, here is the offence and here is the mandatory minimum. That seems to be taking us away from thoughtful, firm, denunciatory sentencing, which is where I thought we were trying to be as a society.

Do you think this bill would benefit if it could be changed? I'm not so sure it could be, but would it be workable to have an augmented parole ineligibility, an augmented amount of time that was less than 25 years? In other words, if a judge thought that the crimes were horrendous and that the need for denunciation was there, the judge could add other shorter periods of additional parole ineligibility. Instead of having 25 plus 25, it could be 25 plus 10 or 25 plus 5, or something like that? Would that be workable? I'm not so sure we could even do it, but I would just ask you to comment.

[Prof. Allan Manson]

When the Canadian Parliament and this committee first replaced capital punishment with the life imprisonment regime, the data collected at that time and presented to this committee showed that, on average, most jurisdictions that had repealed capital punishment looked to minimum life sentences of 10 to 15 years. These are all constructs, in the sense that there's no magic to any of these numbers. The 25 years came from the recommendations of the Canadian Association of Chiefs of Police.

You asked if we would have longer parole ineligibility periods if we increased it to a maximum of 26, 27, or 30. Absolutely, but there's no magic to these numbers. I think last week everyone noticed that Clifford Olson was once again denied parole. The government appoints the National Parole Board, which makes their decisions based on risk.

In answer to your question, you could always change the numbers, but there's no magic to the numbers. Twenty-five years is a long time, but it's a life sentence. Twenty-five years is just for access to the board; the sentence is life.

I bump into guys in the pen who've been there well over 30 years. Some of them represent the human wreckage of our penitentiary system, and they won't get out, because they're a mess. The latest data say that, on average, people get out after 28 years. Our people serve long sentences.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Ménard for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you. Mr. Doob, I am familiar with your writings and opinions, and I have the utmost respect for your work. Once again, I can see that, as usual, it is based on bona fide research and irrefutable statistical evidence.

Now, you want to know what has happened to our system since 2006. There is something you need to understand. And this is not meant as a derogatory comment but a point of clarification. This government is not concerned with producing a more effective penal system. The only thing it is concerned with is the impact this will have at the voting booth, the effect it will have on voters. The Conservatives are convinced that if they introduce harsher sentences, that if they are “tough on crime”, as they say, they will get more votes.

You have seen in your research that that has been the prevailing attitude in the United States, making it the country with the highest incarceration rate in the world. But you have also seen in your research how members of the public are informed of decisions made in judicial proceedings. You have also seen their reactions when they are faced with making real decisions in cases that are either hypothetical or factual. Is the “tough on crime” approach really what the public always favours at first glance?

[Dr. Anthony Doob]

The difficulty is that what we tend to do in public opinion polls favours simplistic solutions. When the public believes that sentences would make them safe because many political leaders, many police officers, and so on tell them that harsh sentences will make them safe, one can hardly blame the public for believing this is the best route to safety. The fact that research shows that it's not the best route to safety, of course, goes unsaid.

In addition, to follow up on some of the remarks that were included in your question, the difficulty is that when the public is asked these questions, there's seldom a follow-up question. Let me give you an example. Mandatory minimum penalties, which seem to be very popular with the current government, are also seen as being very popular with the public. I'm sure the government has done more recent public opinion polls than I'm aware of, but when sensitive polls have been done, there's often a follow-up question on mandatory minimums.

The first question will be to a representative group of Canadians, asking whether they favour having mandatory minimum penalties for certain serious crimes. As the government will tell you, Canadians say they favour mandatory minimum penalties. If you stop there, you'd have less than half the story.

The problem is that if you do a follow-up question, which asks if they think judges with reasons should be able to give sentences less than the mandatory minimum penalties if the circumstances of the offence warrant it, a majority of Canadians want that too, which is in effect saying they don't want mandatory minimum penalties. I think they want these things because they're told about them. They believe that sentences are much more lenient than they are.

The studies I've done over the years--and similar studies have also been done in many other countries--would suggest that what the members of the public are responding to is their belief about sentences, not about sentences themselves, because, as we all know, very few sentencing hearings--or trials, for that matter--are covered in detail in the press. One hears of a serious assault or a sexual assault or something of that kind for which the person only gets a particular sentence, and of course what one doesn't know is what that person's role was. One doesn't really know the facts of the case.

What we do know, from my own research and from other research, is that when people are given detailed information and know the facts, they're much more content with the sentences handed down by judges than they are if all they have is a description. Then an ordinary case can be made to seem sensational if the sentence looks too lenient.