Justice Committee on Dec. 9th, 2010

[The Chair, Conservative, Ed Fast]

Thank you. Mr. Lemay is out of time, unfortunately.

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

There we are, Minister.

[The Chair, Conservative, Ed Fast]

We'll move to Ms. Glover again, for a second question.

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

Thank you.

[Shelly Glover, Conservative, Saint Boniface, MB]

Thank you, Mr. Chair. I know I only have a short period of time, but I have so much to say.

With regard to Ms. Jennings' comment, she obviously doesn't understand what a “warn, caution, and referral” is, because it's not an arrest. There is a very lengthy process involved. I was just describing what we do when we warn and we caution.

It is very frustrating for police officers to have to use the Youth Criminal Justice Act, because it takes, on average, approximately six to eight hours to process a youth. Under the Youth Criminal Justice Act they put in many different layers of process, including a youth waiver form that's two full pages, which you have to go through with the youth over and over again. It takes an enormous amount of time. The youths feel as if they are being subjected to too much pressure in the room. Frankly, it's not helping them.

I want to clarify for the record that it takes about six to eight hours. We don't have six to eight hours for me to do a whole arrest here, but when you warn or caution a youth, no one--neither the judiciary nor the government--has the right to tell the parent to go to any kind of reform. We can't tell them to go to the services. We can recommend; we give them the list of resources, but under a warn and a caution, there is nothing to force those children into any kind of helpful program.

It's not only that: YCJA said every province would create programs, but in my province no programs were created several years into this YCJA, so police officers were left not having anywhere to refer them to. As well, don't forget that this government decided to increase the social transfer payments to the provinces by 3% every year. I think we're at a 30% increase now. If there are no programs, we ought to be asking the provinces about that.

I want to come back to the report. Mr. Lemay is wrong. All those kids that I took those drugs from, that I exploited, are my aboriginal youths, my vulnerable kids who ended up in jail because they were exploited by criminals, and that is wrong. That is why the Youth Criminal Justice Act is a huge failure: those aboriginal kids would never have been exploited had we had deterrence, denunciation, and public safety as the priorities.

It says exactly what you said, sir. It says, “Concern was expressed at the over-representation of Aboriginal youth in the youth justice system” because they were exploited under the Youth Criminal Justice Act.

In any event, I want to go back to Paul Cherewick and the murder of my neighbour. Public safety is a huge recommendation, which you cited just recently, minister. When it comes to public safety, the 17-year-old male who was responsible for that murder got bail and then went out and almost murdered another person while on bail. Had public safety been taken into account, do you think that might have been prevented?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Ms. Glover, I'm very careful about never commenting on any specific case. When you raised the matter with me, I spoke in general terms, which I always do with respect to these.

But I think you made a very good point with respect to aboriginal Canadians, because this report—and we're only getting snapshots of it here—on page 9 of the report says: “Policy and programs need to be culturally sensitive and more recognition has to be given to the involvement of Aboriginal youth at all stages.” That is one of the reasons I am supportive of the money this government has allocated for the youth justice fund and for the aboriginal justice strategy, which comes within the purview of the Department of Justice. I have always been a big supporter of it.

While you may be critical of some aspects of what the provinces are doing, I have been very supportive and very complimentary of what the provinces are doing. Unlike what Monsieur Lemay said, I'm very pleased with what the Province of Quebec is doing, and I was very careful in the drafting of this legislation to make sure that we interfered in no way with provincial involvement on these matters. I was very careful at every step of the way on this, because anything that the provinces are doing...and as you have experienced on a day-to-day basis, it's people like you, municipal police forces, and provincial agencies, that are involved with these young people.

Yes, there is support at the federal level. I am pleased that $177 million annually goes to youth services funding from the federal government; I support that. I support it just as I support the increases to the Canada social transfer, because I want that money to get to help young people. Quite apart from the Canada social transfer, I am one of the big supporters of that $177 million going to the provinces, because I want to support their programs in this area.

I'm a big supporter of the aboriginal justice strategy and the specific money that we are putting in for the youth fund. Why? It's because we want to help these people, because I believe we have a better chance of rehabilitating a young person than if somebody is 47, rather than 17. We want them all to lead productive lives in society, but the younger we get them and the younger we give them help....

So I've always been a big fan of the provinces working within their areas of jurisdiction; I've been very supportive. And I've made that point to provincial attorneys general: to the extent that you put programs in place that are sensitive in some cases to aboriginal youth and to others, to the extent that you are sensitive in these areas and that you're putting resources to them....

I've been very supportive, and it's not just a Christmas card I send them or that the government sends them. We're making sure that they get the funds from the federal government, and I think it's money well spent. We put money into helping those young people.

[The Chair, Conservative, Ed Fast]

Thank you very much. We're at the end of our time, Minister.

Mr. Piragoff, thank you for coming.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's always a pleasure, Mr. Chair.

[The Chair, Conservative, Ed Fast]

We're going to suspend for two minutes as we move to clause-by-clause.

[The Chair, Conservative, Ed Fast]

We'll resume the meeting. We're proceeding to clause-by-clause consideration of Bill C-48, an act to amend the Criminal Code and to make consequential amendments to the National Defence Act.

To assist us we have officials from the Departments of Justice and National Defence. First of all, from Justice we have John Giokas, counsel, criminal law policy section.

Welcome back.

Also we have, from the Department of National Defence, Bruce MacGregor, director of law in military justice policy and research.

Welcome back as well.

You have before you two amendments, LIB-1 and LIB-2, and we'll refer to them as such.

First of all, pursuant to Standing Order 75(1), consideration of clause 1 has been postponed, and we are on clause 2.

Is everyone ready to move forward with clause-by-clause?

Is there any discussion on clause 2?

Mr. Comartin.

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

I'm sorry; I'm just reading something else, Mr. Chair. That's fine.

[The Chair, Conservative, Ed Fast]

There are no proposed amendments right now to clause 2.

(Clauses 2 and 3 agreed to)

(Clause 4 agreed to)

(On clause 5)

[The Chair, Conservative, Ed Fast]

Now we move to clause 5. There are two amendments. We'll move first of all to Liberal amendment 1.

Mr. Murphy, do you want to introduce that?

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

Thank you, Chair.

Throughout the testimony we were struck I think by the idea that in some cases we would like a judge to have the discretion, as the bill indicates, to go up to 50 years—and I'll talk about first-degree murder first—in terms of parole ineligibility, if there were two murders, say.

I was also struck, however, that the judge would have a choice between 25 and 50 in the case of first degree. It was very telling testimony from a seasoned defence lawyer, and I don't think there was any bias in his remark when he said that given the choice between 25 and 50, in most circumstances a judge is going to choose, under the principle of judicial restraint, the 25. I thought the baby would go out with the bathwater. If we wanted to give judges real discretion, the idea would be to give them something between 25 and 50.

I'm mindful, and I know my friends on the other side are going to say this, that many of the other pieces of testimony—the witnesses for victims in particular—said they would like to keep with the 50. I understand that because they would like to see a longer period before eligibility for parole. My point is this. As legislators, I think we have to be mindful of the fact that the victims' desires may not be met by doing what they're asking you to do. In a case where you know that judicial restraint is going to be used, a judge may use the 25-year period instead of the 50-year period.

I have to come back to what I kept telling you was an example in my community about two police officers in 1974 who were killed, murdered in cold blood, premeditated in the most heinous way, and buried in a shallow grave. I grew up with one of the children. He ended up being an NHL hockey player, and he's a great guy. But my gosh, that was horrible for the community. I would think that the judge, having been given the opportunity, might have used the 50 years. Fine, but in many cases of double murders, and we went through it in our briefs, there are crimes of passion, there are drug-related murders, and it doesn't excuse them for sure, but a judge just may use discretion between 25 and 50 in a certain case. I think it achieves what the government wants to do, which is to give, apparently, judicial discretion on further periods of ineligibility. If this amendment doesn't go through, I think the government will lose what it's trying to do, which is to try to maybe get further periods of ineligibility in cases because judges will use judicial restraint. I guess it all comes down to whether you believe judges will use judicial restraint. I think we heard nothing else but that they would.

That's my pitch, I guess, to the government, because I think I know how this is all going to unfold. The problem I might have is with the responses that I anticipate: if you want this bill to be less powerful--and I suspect you'll hear it--you will vote against my amendment because you know that judges will use judicial restraint. So wait for the speeches, but this is actually an amendment that I think the government should consider.

I don't know how to explain the amendment other than to say that it's 10 to 20, and in some cases 10 to 35, and 25 to 50, and anywhere in between. I certainly didn't draft this. I got a lot of help drafting this, from some of the brightest minds in the Library of Parliament, not me, so I'm fairly convinced that this is the way to write this. It is consistent with what the government bill intends to do, and I'm of course very much in support of it.

Thank you. I'm sorry I went on for so long.

[The Chair, Conservative, Ed Fast]

Thank you.

We have Monsieur Ménard and then Mr. Dechert.

Monsieur Ménard.

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

I understand the problem that has been raised by the Liberals very well and I see it the same way. I think we should all see it the same way.

I considered it for at least a good half-hour. It isn't easy to be sure that the bill achieves its goal. Its goal is clear. If there are two murders and the judge has a choice between imposing a 25-year sentence and imposing a 50-year sentence, there is a risk that judges who would like to be able to impose a 35-year or even a 40-year sentence will opt for 25 years rather than 50 years. And that is what the law does now: it offers a choice between a 25-year sentence and a 50-year sentence.

That is also true when we see that a majority of multiple murders are crimes of passion. They are family situations for which there are certainly deep psychological explanations that do not amount to the degree of mental illness that is required in order to absolve the person of responsibility.

We have had two cases of this type in Quebec in the last year. There was the one of a surgeon married to a woman doctor, who apparently made a very good couple. The surgeon, in particular, was very highly regarded in the community. She decided to leave. When she left, he killed the two children. We can clearly see that this was an extreme reaction in passion, or something pathological, even if it is not excusable. In my opinion, a judge would consider imposing a sentence of 25 years to 50 years, and will opt for something closer to 25 years, but might give a little more.

There was also the case of a desperate couple in Lac-Saint-Jean, I think. The parents had tried to get help, from friends, from family, but ultimately they were desperate, probably wrongly, because I think the social security system could have helped them more. In any event, they decided together to kill the entire family. So they amassed enough sedatives for the whole family. They all took them, they went to sleep, and three of them never woke up. The mother woke up in spite of everything. There again, those are crimes of passion. They aren't outlaws. But she stands accused of three murders.

There are generally a lot of degrees in the severity of crimes of passion. I am absolutely convinced that in these cases, judges would probably impose a sentence of only 25 years. But there are degrees between those extreme cases and the case of outlaws like Mom Boucher.

Mom Boucher is lucky because when the person he asked to kill two prison guards went to kill the second, his firearm jammed. So Mom Boucher was sentenced for only one murder. In any event, that doesn't mean that if he was eligible for parole in 25 years he would get it.

When the Liberals explained that, I didn't understand, but now I understand perfectly, like them, that rather than giving judges a choice between imposing a 25-year sentence and imposing a 50-year sentence, let's give them the option of imposing a sentence higher than 25 years, that is, of adding five years or 10 or 15 or even 25 years to the initial 25-year sentence.

I am saying that it takes time, when we read the amendments, to make sure they in fact achieve their objective. It took me a half-hour, but I'm satisfied. I think they do achieve the objective. That is why I am going to vote in favour of this amendment.

[The Chair, Conservative, Ed Fast]

Thank you. We'll go to Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you.

First of all, could we perhaps hear the Department of Justice official's views on this amendment?

[John Giokas, Counsel, Criminal Law Policy Section, Department of Justice]

I don't have any statements to make about the policy of this bill, but I would point out that it is recognized—and this committee has discussed it—that the circumstances of multiple murderers are quite varied. The criteria that have been imported in Bill C-48 are designed to recognize that the mental state of those who kill, even those who kill more than once, can carry varying degrees of moral culpability and varying degrees of remorse.

The criteria in the bill are designed to militate against the imposition of these kinds of orders, except in the most extreme cases of remorseless serial killers or the type of organized crime killers whom Mr. Ménard has just mentioned. These are people who are unlikely candidates for parole in any event.

I would suggest that the criteria in the bill will limit the number of times a judge will impose such an order. That's a technical matter having to do with the criteria I discussed when I gave my evidence the last time I was here.

As a technical matter—I'm no drafter and I only received this motion a short while before I came to committee—I would point out that if this motion is adopted in the terms in which it is drafted, I see three technical issues, and I wonder whether I could ask the committee for its indulgence while I go through them. It won't take very long.

The first is that it appears to me on the face of it—and I want to say again that I'm no drafter and I have yet to confer with our drafters—when you look at proposed 745.51(1)(b)(i) and (ii), saying in the case of a first-degree murder in proposed subparagraph (i) that the period may not exceed 25 years, and in proposed subparagraph (ii), the case of a second-degree murder, that the period must be at least 10 and not more than 25 years, it's entirely possible on the face that a judge could give one year for a first-degree murder and would have to give ten years for a second-degree murder, on the wording of this.

The very first period of parole ineligibility, for the first murder, would be between 10 and 25 years, depending on whether it was a first- or second-degree murder. If the second murder was a first-degree murder, the judge could conceivably give one year, because it would “not exceed twenty-five years”, according to the wording of proposed subparagraph (i). But if it were a second-degree murder, the judge would be obliged to give ten years as a minimum.

I see that as being an anomaly.

Second, I would point out that the wording of the motion refers to...for example, in proposed paragraph 745.51(1)(b):

but the period with respect to the conviction that is the subject of sentencing under section 745 is of such duration as the judge deems fit in the circumstances

As I explained the last time, section 745 is mandatory, so the reference to section 745, I would suggest, brings in the mandatory 25-year periods that I discussed when I was here the last time.

In the same way, it seems to me that the same problem arises with respect to proposed subparagraph (ii), because it also mentions “section 745.4”. Section 745.4 refers to the period determined by a judge for a second-degree murderer. Section 745.4 says “at the time of the sentencing” in accordance with section 745. So once again section 745.4 imports the mandatory nature of section 745.

Proposed paragraph 745.51(1)(b) says that a second, third, or fourth second-degree murder automatically gets 25 years, but here we're saying that a judge has the discretion to make it between 10 and 25.

The third point I would mention is that if we were to adopt this motion, we would need to make some other amendments to Bill C-48. Clauses 3 and 9 will have to change to give a right of appeal to the crown, because the way they're worded right now, the crown may only appeal the imposition of the order and may not appeal the length of time.

The wording of the appeal provisions for the offence is a little bit different. If the judge is going to make such an order, I'm assuming--and I stand to be corrected--that he or she will want to read a notice to the jury asking for their advice on the length of time. That will require another amendment to clause 4, because the judge will be asking the jury two questions: “Should I make the order, and, if I make the order, how much time should I give?”

As I say, I'm making that assumption about the reading of a notice, but I may be wrong on that.

Let me just say finally that, as I said, I haven't had a chance to talk to the drafters, so I don't want my comments to be taken definitively, but these are my preliminary views based on what I've been able to see on the face of the motion.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Dechert, are there any further comments?

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Yes, but first I'd like to ask you a question. You mentioned several times that you haven't had a chance to speak to the drafters yet. Does that mean that at this point in time you can't offer us any potential fixes to these technical issues you've pointed out?

[John Giokas]

I can't give you language, but I would suggest that clauses 3, 4, and 9 would need to be amended as well to accommodate this.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Okay.

Then, Mr. Chair, I'd like to say that for three reasons I'm not supporting the amendment.

The first reason is that, as Mr. Giokas pointed out, the bill requires the judges to consider these additional parole ineligibility periods when they're dealing with a remorseless serial killer or a contract killer. Those are the most serious kinds of crimes that are committed in our country. We're seeking to amend public policy and to amend the legislation to reflect that these are the most abhorrent kinds of crimes a person can commit against an individual or victims in our country.

We want to make a case that each life taken is equal, and we feel that the need for public confidence in the criminal justice system requires us to allow the judges to make multiple parole ineligibility periods in cases of remorseless serial killers such as Clifford Olson, Robert Pickton, Russell Williams, and, unfortunately, a few others. These situations aren't going to arise very often, but when they do, the public requires us to deal with these people harshly and to give the judges the ability to impose those kinds of sentences.

As a member of Parliament, I have surveyed my constituents many times on this issue. My constituents tell me consistently that these kinds of sentences are required in those kinds of serious, heinous murders. For that reason, I think it would be irresponsible for us to agree to this amendment.

Third, we've said from the very beginning that our focus here is to address the concerns of victims and their families. We heard from victims. We heard from two of the families of Clifford Olson's victims. This question was put to them, and they said very clearly that they did not agree with that kind of amendment. We asked the same question of the victims' ombudsman, Sue O'Sullivan, who represents all victims in Canada and has canvassed many victims for their views on this proposed legislation. She's a career police officer, and she said she also did not support such an amendment.

For those reasons, I would encourage the members of this committee to vote against this amendment.

Thank you.

[The Chair, Conservative, Ed Fast]

Mr. Rathgeber is next.

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

Mr. Chair, first I have a question. I don't know if I should address it to Mr. Giokas or to Mr. Murphy.

I'm having difficulty with the drafting of his amendment, specifically with proposed subparagraph 745.51(1)(b)(i). Section 745.51 is long to begin with, but when you get to the additions, it is proposed that lines 35 and 37 be deleted, and then there are the additions of paragraphs 745.51(1)(a) and 745.51(1)(b), and then subparagraphs 745.51(1)(b)(i) and 745.51(1)(b)(ii). It's subparagraph 745.51(1)(b)(i) that causes me great concern.

Mr. Murphy acknowledged that this was written by draftspersons smarter than he is, and they must be a lot smarter than I am, because when I read to the bottom of subparagraph 745.51(1)(b)(i), I'm left with the indelible impression that the maximum parole ineligibility cannot exceed 25 years. Where am I wrong?