Justice Committee on Dec. 9th, 2010

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

Just briefly, it's goes up to paragraph (b) where they talk about the conviction that is the subject of the sentencing, so it is the second.... If this is first-degree murder—in subparagraph (i), it's a first-degree murder conviction—the first one is an automatic 25-year ineligibility. The one that is the “subject of” is the subsequent one, so in other words it cannot exceed 50 years; it cannot exceed 25 years. It's a single sentencing, or ineligibility, so it could be between 25 and 50. I mean, that's the way I was told....

Here's what I did. I told them what I wanted to do. It would be no surprise to anyone here because I've suggested it a number of times. I wrote it out myself, and it made sense when I wrote it. When it came back it was different, but I understood there were other sections to deal with.

Certainly I'm comfortable with proposed paragraphs (a) and (b) and subparagraphs (i) and (ii). I did not think of clauses 3 and 9, the coordinating amendments, and that's probably my fault. I don't agree with Mr. Giokas. I asked Mr. Giokas to see if that was possible and he said it wasn't possible. So it's not like he's new to this.

What I'm getting is that for policy reasons you're not going to go for it anyway, so why don't we just put us out of our misery here.

It's a valid attempt, and I tried.

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

No, I don't think that's fair, Mr. Murphy. Technically, I want to know what we're voting on. I do also have some policy concerns. But I do see what you're trying to do. You're trying to give a trier of facts some discretion to go somewhere between zero and 25 years on a subsequent conviction. I think it's admirable that you see some possibility where a judge might not use his discretion to give the additional 25 years when given the choice. You want to allow him to cut it down the middle.

I'm not sure that your drafting persons in the Library of Parliament have done this correctly, and I want to ask the technical experts from Justice. When I read all the way to the bottom of what is now a very long proposed section 745.51, the last sentence is “as long as (i) in the case of a first degree murder conviction, the period does not exceed twenty-five years”.

Is Mr. Murphy correct that he is talking about the second murder conviction, or is that a totality sentence of parole ineligibility? Or, as a third option, is there some confusion that a court might interpret it the way I seem to be?

[John Giokas]

I want to preface my remarks by saying I'm no draftsman, but proposed section 745.51 talks about making all of the relevant parole ineligibility periods consecutive. Let's not forget that that's all Bill C-48 does. It takes the existing rules in paragraphs 745(a) and (b), as I've explained, which call for a mandatory 25 years, and it allows the judge to make them consecutive.

In this particular instance we're talking about all of the parole ineligibility periods. But as I mentioned, the reference to section 745 confuses me. The periods in section 745 are mandatory, and proposed paragraph 745.51(1)(b) purports to make them optional as the judge deems fit in the circumstances. I see a contradiction there. As I went on to say in the case of a second murder and a second parole ineligibility period, if this is right, then the judge could theoretically give one year.

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

Mr. Chair, I think we need to consider whether or not this motion is even in order. The bill is aptly named “ending sentence discounts for multiple murderers”.

What the government has proposed to do is allow the discretion to a trial judge to give a period of 25 years of parole ineligibility for each and every conviction of first-degree murder.

Mr. Murphy is attempting—and I say this with all deference because I think his amendment is well intentioned—to allow some sort of prorated discount, whereas on a subsequent conviction for first-degree murder, for example, a trier of facts who is so disposed could give half of the 25 years of parole ineligibility, or one year, or 23 years, or anything in between. I think that is a sentencing discount, and I think that is counter to the express objectives of the bill. I'd ask you to consider it out of order.

[The Chair, Conservative, Ed Fast]

Well, I'm going to rule that it is in order. I have consulted with our clerk and it is in order.

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

That being said, I agree with my friend, Mr. Dechert, that the members of this committee ought to vote against this amendment for the reasons Mr. Dechert explained.

The whole argument that judges will be reluctant to grant an additional 25-year sentence is not only overstated, but we haven't heard any evidence that that's the case. We've heard some speculation from an eminent defence lawyer, but certainly we haven't heard any judges, for example, who came before the committee and opined that they might be reluctant to do it.

This bill is specific to the most heinous of criminals. We all know who they are: Olson, Pickton, Williams.

The cases that have been cited were the crimes of passion, or they're drug deals gone bad where there might be more than one victim. Those situations are covered by the discretion in the unamended bill, where a judge who doesn't want to give consecutive periods of parole ineligibility doesn't have to, but can for the most heinous criminals.

I just want to close and remind all the members of this committee of the very compelling evidence of Ms. Rosenfeldt, who was here on Tuesday, I believe. When specifically asked by my friend, Ms. Jennings, whether she would support an amendment that would allow for something in between zero and 25 years of a consecutive period of parole ineligibility for a multiple murder situation, she unequivocally said no, she would not support that amendment. She supports the bill as written, and so do I.

Thank you, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Any further discussion?

[An hon. member]

[Inaudible--Editor]

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

I won't be intimidated, not at all.

[The Chair, Conservative, Ed Fast]

Mr. Lee, and then Monsieur Lemay.

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

I didn't mean to intimidate you.

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

Well, you tried.

Shall I speak quickly or...?

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

No, please take your time.

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

I also sympathize with the objective that Mr. Murphy is trying to accomplish here.

Mr. Rathgeber feels the same way, but he feels that every one of these multiple murder scenarios is the same. And while I can only agree with him totally that the circumstances he has mentioned are all the most heinous, it's not clear to me that every multiple murder scenario is going to be that way. I think about a recent case--without mentioning any one, so again, generically--where a mother kills her two children. Now, you could say to me that this section provides for this because there is discretion on a judge imposing a second consecutive 25-year period of ineligibility. You hate comparing these kinds of cases because they're all so very sad.

I see the possibility of an unintended impact here that we haven't thought of. We haven't gone through all of the possibilities. So a judge at some point would be crying out for some kind of a way. He has looked at the circumstances and would say that two 25-year consecutive periods were not a very good fit. Then the judge is either going to exercise his discretion to not impose the second one, which might be okay. The alternative is that he or she is looking for some kind of a compromise between the 25 and the 50 just because he or she thinks it's the just thing to do. You might have an entire community--and you think of a small community somewhere--that will say, yes, the judge is right on this one. But the judge would be stuck.

So Mr. Murphy's objective is a good one. The technical drafting issues confront us, and I'm sorry that it isn't easier to accomplish.

I'll stop there.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Lemay wanted to speak, I believe.

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

Mr. Chair, I will address two points.

Regarding Ms. Rosenfeld, who testified, certainly the bill can unfortunately not apply to her, even if it was enacted at top speed, because Mr. Olson has already been serving his sentence for over 25 years. So clearly he can come back. And in any event, this bill is not retroactive.

However, I admit that Mr. Giokas's comments gave me pause, I have to admit it. Like my colleague Mr. Ménard, I too have studied it carefully. It seemed to me that it might respond to a number of fears, but mainly it responded to the objective... In other words, the judge could—and I would not want to repeat everything said by my colleague Mr. Ménard—impose a "graduated" sentence, under paragraph 745.21(b) that it is proposed to add by amendment LIB-1.

To start with, certainly amendment LIB-1, concerning paragraph 745.21(a) that it is proposed to add, deals with consecutive sentences, and so the eligibility periods are consecutive.

If I'm not mistaken, Mr. Giokas, it seemed to me that when I interpreted amendment LIB-1 and paragraph 745.21(a) and then subparagraphs 745.21(b)(i) and (ii) that it proposes to add, it met, or at least it avoided what you pointed out.

I would like to hear you on that question. I may not have understood correctly. However, it seems to me that we have to interpret paragraph 745.21(a) of amendment LIB-1 and then subparagraphs 745.21(b)(i) and (ii).

[John Giokas]

I have to say I'm a little puzzled myself because as I said before, it's the reference to section 745 and subparagraph (b)(ii) that confuses me a little.

As you probably know better than I, in section 745, the 25-year period isn't optional; it's something the judge must impose.

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

Excuse me, Mr. Giokas. Under the decision associated with section 745, it's imprisonment for life.

[John Giokas]

There we are.

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

So it says in the Criminal Code, under section 745, that an eligibility period of 25 years can be imposed. That is the reason, isn't it?

[John Giokas]

Yes.

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

Right. Excuse me for interrupting you.

[John Giokas]

As I was saying, it seems to me that there is a contradiction. Paragraph (b) refers to section 745 and says it is optional. The length of time referred to in section 745 is 25 years. However, paragraph (b) refers to section 745, but at the same time it says that the judge may decide the length.

There may not be any problems. As I said, I'm no drafter, but it's something that leaps to the eye on the face of it, as I said in English.

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

Thank you, Mr. Giokas.

Out of respect for the committee, Mr. Chair, could we have an overview? Could we not put this over to next Tuesday so we can have more information? Because it's important. I think Mr. Murphy's amendment is good, but I note Mr. Giokas's comments, which also seem to me to be valid. Could we not have a few hours, a few days more? Is it urgent that we adopt this amendment today? Could we not adopt it on Tuesday, so we have the time to look at it properly between now and then?

[The Chair, Conservative, Ed Fast]

What's the wish of the committee?