Public Safety Committee on Feb. 15th, 2011

[Howard Sapers]

Thank you, Mr. Rathgeber.

In fact, it's an overstatement to say that it's “automatic”. The National Parole Board can either direct to release or not direct to release under the current legislation. If the release is directed as a result of the APR system, then that direction for either day parole or full parole will take place. But if the board, on that paper review, that first review, does not direct the release, then it will go forward for a hearing.

Last year there were 545 of those hearings, of approximately 1,000, in which release was not directed, and therefore the parole release was denied. So it's not automatic.

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

Mr. Fineberg.

[Stephen Fineberg]

Thank you very much.

The Quebec Superior Court has made it clear that until the Parole Board makes a decision and exercises its discretion, release is not possible. People have argued in court that because their client is a white-collar criminal and there's absolutely no sign of violence in the case, he must be released, and the court has said that's not the case, and there needs to be an exercise of discretion by the board. The board bases its decision as to whether someone represents a potential for violence in the future, not just on the current crime but on anything that is on their provincial record, on anything that comes to them through police information, even if someone has never been charged and convicted of it.

So if there's information before the board that you've been involved in brawls in bars or that you've been seen by the police for conjugal violence, even if you've never been convicted of that, the board uses that to refuse your release.

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

But you'll agree with me that the board has no discretion to deny a one-sixth for anything other than a propensity to commit violence?

[Stephen Fineberg]

That's correct.

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

Okay. So even if an individual were somehow plotting another fraud scheme inside the walls of Corrections Canada, and the parole board or, for that matter, Corrections Canada knew about it, the parole board would have no discretion to release that person if he had no history of violence and no propensity to violence, and certainly if he hadn't been communicating with anybody that he was about to commit violence.

[Stephen Fineberg]

That's why large-scale fraud should be excluded from accelerated parole review.

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

So you are agreeing with me that there would be no discretion to not release that individual at one-sixth?

[Stephen Fineberg]

If the parole board determines that the person is likely to commit a non-violent crime, the board must release anyway. That's true.

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

You've opined on the constitutionality of this offence, and that causes me some concern with respect to your prognostication.

You'll agree with me that sentence administration is the purview of the Correctional Service of Canada and it's not part of the sentence. You'll agree with that?

[Stephen Fineberg]

Yes.

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

I need to follow up on something my friend Mr. Davies asked. If a person is sentenced to 12 years and they get APR at two years, or full parole at a third, or statutory release at two-thirds, they are under sentence for 12 years.

[Stephen Fineberg]

Correct.

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

Now since the Supreme Court has said that sentence administration is not part of the sentence, what makes you think that this piece of legislation could potentially be unconstitutional with respect to the retroactivity?

[Stephen Fineberg]

Two things: paragraph 11(a) of the charter and section 7 of the charter.

There is already a case called Abel v. Edmonton Institution for Women, in which the court in Alberta has ruled that when APR was taken away from someone who had committed her crime when APR was available, when her crime gave her access to APR, paragraph 11(a) of the charter had been violated, and the court in Alberta--

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

Sure. I'll read—

[Stephen Fineberg]

--based itself on the Supreme Court's decision in Gamble and on a decision of the Court of Appeal of Newfoundland.

Apart from paragraph 11(a), there is section 7. Section 7—

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

Okay. I have limited time, so I'll read Abel. Thank you. I'm very limited in my time.

[Stephen Fineberg]

Okay.

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

You also said that you don't believe that society wants violent and non-violent criminals treated similarly. Did I hear that correctly in your opening comments?

[Stephen Fineberg]

That's what I said.

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

I want to ask some of the victims how they feel about that.

[The Chair, Conservative, Kevin Sorenson]

Last question.

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

How do you feel about that? We'll start with Mr. Gravel.

[The Chair, Conservative, Kevin Sorenson]

We have time for only one answer on this.