Justice Committee on Feb. 23rd, 2015

[Howard Krongold]

Subsection 231(5) of the Criminal Code provides that certain forms of what would otherwise be second-degree murder are first-degree murder when—I'm just looking at the language here—the death is caused “while committing or attempting to commit” certain designated offences, which include sexual assault, aggravated sexual assault, and kidnapping and forcible confinement. There's a lot of overlap there.

I think the reason for the language in this bill, or the way I would read it anyway, is that.... There was a case—the name is escaping me right now—that held that you could have an escalation from second-degree murder to first-degree murder based on subsection 231(5) even if the victim of the murder and the victim of the, say, sexual assault or forcible confinement were different individuals as long as both were part of the same transaction. I think the intention here is to more narrowly target this provision to ensure that it's the same victim and the same transaction. It is a slightly narrower provision. You can imagine situations in which a person would be captured by first-degree murder under subsection 231(5) that would not be covered under this, even if there were also a sexual assault, an abduction, and a murder. That's a bit of a technical answer, but it's a bit of a technical question.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

It was a technical question. Thank you very much.

Do you have something to add, Mr. Paterson?

[Josh Paterson]

Yes, thank you.

The only thing I was going to add is one of the things that continually creeps up over time in terms of the Criminal Code, which I'm sure members are well aware of, is the tendency toward creating piecemeal solutions by making individual changes to certain crimes at certain times, often in response to a particular current event. A look at the history of Canadian sentencing laws going back over more than 100 years shows that even going back to Confederation when we received English criminal laws, there was a huge morass of different penalties that weren't determined in relation to each other. They were proposed at individual times and various attempts have been made through the years to consolidate and even those things out with more or less success.

We have a generalized concern when all of a sudden we see for particular kinds of crimes brand new and in this case very long periods of parole ineligibility are being created without taking a comprehensive look at the whole body of the Criminal Code, despite some of the evidence as to whether or not those extensions of time incarcerated are going to make people safer in our communities. We say there's no evidence to show that's the case. About 10 years ago, Justice Canada put out a report suggesting that longer sentences tended to cut against public safety by putting people at a higher danger of reoffending.

We have a lot of concerns with the way in which this is coming up.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

That's perfect, because you've just opened a door for my last question. In your practice and in your studies of all the different bills, it's exactly what we've been hearing in testimony over and over again. Do you have any studies or knowledge of the repercussions of what we're always talking about in terms of minimum sentences and how they play into the whole criminal justice system? I would like to have your comments on that.

I think you have a really short time, like 10 seconds.

[Howard Krongold]

Certainly this provision adds a complexity to an already quite complex system. You'd have to add additional counts to an indictment. You would normally charge somebody with first-degree murder; you wouldn't charge them with several other offences in addition. It creates a potential complexity in how a jury deliberates, because they normally would be instructed on the routes to first-degree murder, which they don't necessarily need to agree on. But in this case you certainly add complexity to litigation by having to prove three separate offences to get this sort of sentencing enhancement.

[The Chair, Conservative, Mike Wallace]

Mr. Paterson, briefly.

[Josh Paterson]

We put out a report this past year on mandatory minimum sentencing that I'd be happy to send to the clerk.

There is a natural, intuitive sense that longer sentences make us safer and that they will deter offences, but countless studies have shown there's no evidentiary basis to support this belief. The evidence simply isn't there, and so we're quite concerned about measures like these.

We don't object to the mandatory minimum of 25 years for first-degree murder but extending that parole ineligibility causes concern for us.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Calkins from the Conservative Party.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I appreciate the witnesses who are here today.

Howard, you're a regular here at the House. Is your name on the chair?

I listened to your introductory remarks and appreciate them very much. The one thing that I want a little clarification on is that you said something about the fact that over that length of time—we're talking about somebody who has a first-degree murder conviction with 25 years before parole eligibility—they would have access to programs. Could you confirm something for me? I don't believe that anybody who's federally incarcerated has to take any programs. Do I understand that correctly?

[Howard Krongold]

I think that's right. I'm sure you could find somebody from CSC who could give you better information than I could. My understanding is that nobody has to.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Nobody has to.

[Howard Krongold]

But, particularly when you have a situation where you have somebody who has the potential for parole—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

It's usually a factor. If they were serious about seeking parole, they would probably seek programming if they had it available to them. Is that it?

[Howard Krongold]

Yes, assuming that they have a realistic prospect of getting it in their lifetime. I would certainly expect that there would be a far greater incentive to seek programming, get help, and get treatment if you have a prospect of getting parole, even if it is 25 years out.

I can tell you that offenders are very aware of their parole eligibility. They will look ahead a decade or two and think, “I need to behave myself; I need to do as I'm told in custody; I need to obey the rules, and I need to get treatment and help”, because they're looking 10, 15, 20, or 25 years out and thinking that they are going to want get parole one day. If the parole ineligibility is 35 or 40 years, it's hard to see what incentive somebody has to make arrangements for when they're 70 years old, for example.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Conversely, we just heard from Susan, who said they left the courtroom feeling that the fellow was going to get locked up and they would throw away the key, only to get that surprise phone call x number of years later saying that the individual who did that was seeking parole and that's the process.

That leads me to my next question. Maybe my next question is better directed to the analysts and so on, but could somebody here help me with what I want to know? I believe somebody said that there were 600 or some offences where this could have applied.

Chair, I think you brought that information forward with regard to dangerous offenders.

[The Chair, Conservative, Mike Wallace]

The question was on the designation of dangerous offenders, on how many there have been. It didn't get into why they were designated as such or what their offences were.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

You're using my time, Chair.

[Voices]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

No, I'm not. I'm adding to your time.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I don't know if the analysts can answer this. I think the hard part about getting statistics on this is complicated by the fact that....

Howard, I think you accurately.... I used to be a law enforcement officer. I know that when I found somebody who was guilty of multiple things—although I never charged anybody with anything this serious in my time—I would find that the most serious charge was usually the one that was proceeded with. I think you alluded to the fact that you very rarely would see a prosecutor or the investigative team pursue the charging of somebody with all three if it was particularly heinous, although it wasn't prohibited. Do I understand that right? It's just that usually they proceed with the most egregious factor. Is that correct?

[Howard Krongold]

I think that's right. Normally you would charge somebody with first-degree murder and everything else that goes along with it is less—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Right, or the one that you're most likely to get a conviction with. That's the way you proceed with them. You want to go through all of that.... I guess here's the question I have if we're looking at it from the perspective of the victim. I appreciate the fact that we're looking at the overall sentiment of the justice system and what it's supposed to be doing, but if we put on the lens of a victim and just ask ourselves about it from the victim's perspective, and they have to relive it.... We've heard about the traumatization of having to relive the crime all the time. How many of these dangerous offenders or people who are charged with some of these crimes actually get parole eligibility before their sentence is up?

That's notwithstanding the fact that the faint hope clause has now been repealed, but that doesn't go back retroactively. Can somebody give me some edification as to how many people who do these kinds of crimes actually get parole?

[Howard Krongold]

I have some knowledge about how the faint hope provisions work. As you say, they don't work for anybody convicted of offences from 2011 onward, but it used to be that the success rate on faint hope applications was a little over 75%. For people who got a reduction of parole eligibility from a jury, about 90% of them would eventually get earlier parole. Now, that probably doesn't—

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Those are just the ones who would apply. Right? It wasn't automatic.

[Howard Krongold]

That's right. They had to apply for it. One imagines that people convicted of extremely serious offences might not have put themselves in the pool, because they would have realized that they were not going to get parole after 15 years from a jury—