Public Safety Committee on Nov. 17th, 2010

[Alan Tonks, Liberal, York South—Weston, ON]

I see.

On the whole issue of indictable offences, would an indictable offence, say, possession of marijuana, be a matter of record? How would that figure into the bill? Would that be identified as an indictable offence?

[Mary Campbell]

I don't have my statutes in front of me, so I would have to check. That would normally be an offence under the Controlled Drugs and Substances Act. All offences are either purely indictable, purely summary conviction, or are a hybrid, which is to say the crown can elect which way it wants to proceed. I don't recall off the top of my head what possession of marijuana is, but we could certainly find out.

[Alan Tonks, Liberal, York South—Weston, ON]

I'm just struggling, and not that I've had any experience with that particular pursuit, but the bill suggests that there would be offences that would be taken into consideration that would have that 10-year trigger associated with them. I guess my question would be...and I do accept that the information isn't totally available. Using that as an example, it would appear that this offence--I don't know what the word is I'm looking for--in itself wouldn't appear to be the kind of offence that would prevent a reasonable amount of time to apply for a suspension of record.

[Mary Campbell]

The act as amended by Bill C-23A provides for a 10-year waiting period in the case of a serious personal injury offence—possession of marijuana would not qualify under that definition—or offences referred to in schedule 1, which are child sex offences that were prosecuted by indictment. I cannot see possession of marijuana falling within a 10-year waiting period. It would fall within either a five-year or a three-year waiting period.

[Alan Tonks, Liberal, York South—Weston, ON]

Okay. How is that decision made?

[Mary Campbell]

It's made initially in the prosecution, in the laying of charges, as to whether an offence is indictable or summary. So by the time the matter reaches the parole board for consideration about a pardon, that decision has already been made in the criminal court system.

[Alan Tonks, Liberal, York South—Weston, ON]

Okay. Thank you.

[The Chair, Conservative, Kevin Sorenson]

You have another minute and a half, if you want.

Mr. Kania.

[Andrew Kania, Liberal, Brampton West, ON]

I will go back to some of the questions I asked the minister in terms of statistics and empirical evidence, because we touched upon that and the minister mentioned rationalization for offenders with multiple convictions, and that that was a problem. I'd like to know if there is any empirical evidence that could be provided or has been considered in terms of making that decision.

As well, as a general concept, there's been movement from the three years to five years on summary convictions and five years to ten years on indictable convictions. Again, the same question, was it a policy decision because they just didn't like it, or was there actually some empirical evidence showing that there was a problem that needed to be solved and that's why the changes have been made?

[Mary Campbell]

Certainly, we would be pleased to provide the committee with anything we have from our researchers.

I do recall that in relation to sex offences—because I have some world-renowned sex offender researchers working for me—sex offenders in general are characterized as reoffending at a lower rate than people think, but over a longer period of time. So for a sex offender, it's not unreasonable to think about a 10-year waiting period, because in fact you do see the activity continuing over that period of time.

I certainly can provide that research, as well as anything else the group has about violent recidivism survival rates, so-called.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Campbell.

We'll move to Madame Mourani.

[Maria Mourani, Bloc, Ahuntsic, QC]

It is Mr. Gaudet's turn.

[The Chair, Conservative, Kevin Sorenson]

I apologize, Monsieur Gaudet.

[Roger Gaudet, Bloc, Montcalm, QC]

Thank you, Mr. Chairman. I do not speak often, but I do like to take the floor once in a while.

I have a question concerning the Minister's presentation. This is what he says on page 4 of his presentation:

With the amendments to the Criminal Records Act passed in June, the Parole Board of Canada now has the authority to exercise discretion and deny a pardon application in cases where the evidence clearly demonstrates that granting one would bring the administration of justice into disrepute.

I see a problem here. I would like to have an example of what this would mean, an explanation of how the Canada Parole Board could bring the administration of justice into disrepute.

[Mary Campbell]

I'm going to let my colleague Mr. Churney speak to this in part. Mr. Churney is making his committee debut today, so I hope you'll ease him in gently.

The kind of situation that I think Parliament was thinking of when Bill C-23A was passed with that language was a situation that would shock the conscience of people, that the offence was of such a gravity--and perhaps there was a plea bargain involved--that the conviction and the waiting period do not adequately reflect the seriousness of what actually transpired and the harm done to the victims.

I think that's the kind of situation. However, there has been some work going on in developing some regulations to flesh that out.

Mr. Churney, would you like to add anything?

[Daryl Churney, Acting Director, Corrrections Policy Division, Department of Public Safety and Emergency Preparedness]

As Ms. Campbell just said, there is some work to develop regulations right now that would supplement or support that concept of bringing the administration of justice into disrepute.

I think the concept we're trying to get at is looking at situations where there is an ongoing serious level of harm, either financially to the victim or emotionally or physically. There would be some kind of major, substantive, ongoing type of harm or injury.

That's the concept we're working on to develop regulations that the board could use to support their decision-making on that point.

[Roger Gaudet, Bloc, Montcalm, QC]

I'm having trouble understanding what you mean. It is as if the Canada Parole Board was judging the judge. You will have to explain to me the difference. If a judge hands down a sentence, it would be inappropriate to revise that sentence; you should only be following the regulation.

From what you are saying, you are going to pass judgement on the judge who judged the offender. I see a problem here. There are going to be two justice systems: the Parole Board and the judge. This requires an explanation. If it is the way it works, I will be voting against it for sure.

So that's my question.

[Mary Campbell]

It's a very important point. I don't think the intention of Parliament in passing that was to set up a second guessing of the original conviction and sentence.

As Mr. Churney is indicating, though, the judge at the time may have accepted a plea bargain--for example, where a number of elderly people were defrauded of their life savings. The judge accepts a plea bargain and imposes the sentence that counsel have recommended. That's the fair and appropriate sentence, but at some later point, when it comes time for a pardon to be considered, it may be that the suffering of those victims is still so severe, so egregious, that notwithstanding the good conduct of the offender in the interim, it may be a compelling case where issuing a pardon would meet the test that Parliament has articulated.

I think Parliament's intention was that it would be a rare situation. As you have said, it's not appropriate to re-judge or re-sentence. It is in those limited circumstances where there is potentially some ongoing suffering or harm that was not contemplated or expected.

[The Chair, Conservative, Kevin Sorenson]

Continue, Mr. Gaudet.

[Roger Gaudet, Bloc, Montcalm, QC]

I'm waiting for the translation. Don't take it personally, but I am not satisfied with your answer.

I don't think that the Parole Board can override a judge. In certain cases, maybe… If a person has been sentenced to 15 years and has been waiting five years to ask for a pardon, or if that person did nothing wrong in the last 20 years, I cannot accept that you deny her a pardon just because it is going to shock people.

This is not justice in my mind. I have not found the right word for it, but this is not what I call justice.

[The Chair, Conservative, Kevin Sorenson]

Mr. Davies, you have seven minutes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chairman.

I want to move to proposed paragraph 4(2)(b) in the bill we're studying, which says:

a person is ineligible to apply for a record suspension if he or she has been convicted of

(b) more than three offences each of which either was prosecuted by indictment or is a service offence

The point is that this bill would say that anybody convicted of more than three indictable offences would be forever barred from applying for a pardon.

I'd like to ask about the situation where someone in their early twenties one night gets involved in a transaction that results in multiple convictions. Someone steals a car, gets impaired, and hits someone who gets injured.

Would you agree with me that it's possible that someone could have three convictions by indictment early on in their life who may benefit from a pardon?

[Mary Campbell]

Yes.

[Don Davies, NDP, Vancouver Kingsway, BC]

You would agree with me that this legislation would permanently bar that person from applying for a pardon. Is that right?

[Mary Campbell]

It's really up to the government and to Parliament to set the demarcation line. You asked if it is possible for a person in that situation. Yes, it is possible. As to whether it's appropriate to set the demarcation line at more than three, I think that's clearly a decision for Parliament to make.