moved that Bill C-45, an act to amend the Criminal Code (judicial review of parole ineligibility) and another act, be read the second time and referred to a committee.
Mr. Speaker, it is my pleasure this morning to lead off second reading debate on Bill C-45 and to put forth the reasons of the government why this legislation deserves the support of members of the House.
First of all, I would like to say that the purpose of this bill is to amend the scheme set out in section 745 of the Criminal Code the provision that provides for judicial review of the parole ineligibility period for life sentences imposed on persons convicted of murder or high treason.
In cases of first degree murder or high treason the parole ineligibility period is set by law at 25 years. In the case of second degree murder the parole ineligibility period is 10 years unless the trial judge sets it higher at a point between 10 and 25 years. An offender is not eligible to apply under section 745 until after that offender has served at least 15 years of the parole ineligibility period.
The decision in a section 745 review is made by a jury composed of ordinary citizens drawn from the community. As the section currently reads, the decision can be made by two-thirds of the jury, eight of the twelve members.
After hearing evidence called by the applicant and by the crown attorney in response, the jury decides whether to reduce the parole ineligibility period and to what extent. If it decides not to reduce the parole ineligibility period, the jury must decide when the offender may apply again, if at all, under section 745.
In cases where the parole ineligibility period is reduced, the offender becomes eligible to apply to the National Parole Board when that period as reduced by the section 745 jury is up. The parole board then consider the case and may grant parole only in appropriate cases. In making its decision the parole board must consider whether the offender's release would pose an undue risk to public safety.
I emphasize a point crucial to an understanding of the issues that arise with respect to Bill C-45, a point I do not believe is much discussed or well understood generally. The life sentence imposed on someone convicted of murder or high treason continues literally for the offender's entire life. In that sense, life does mean life.
In those cases where such an offender is released on parole, the offender continues to be subject to the sentence and can be reincarcerated at any time should he or she breach the conditions of release imposed by the parole board. They are accountable for the balance of their lives.
I would also like to stress for hon. members the legislative history of section 745. It is said by some that this provision was included in the Criminal Code by stealth, that it somehow resulted from trickery or deception.
Section 745 became part of our Criminal Code 20 years ago in 1976 as part of the amendments by which the House of Commons and Parliament abolished capital punishment.
Section 745 was the subject of full and vigorous debate. It was not slipped into the statute books as a surprise to the unwary. It is a fundamental aspect of the resolution reached by the House on the very difficult question of the appropriate penalty for murder.
It was enacted as a response to the recognition that a 25 year parole and eligibility period is significantly longer than murderers were serving before parole at that time.
In cases of non-capital murder, the average time served before parole release was between 12 and 13.2 years. In cases of capital murder commuted to life, the average time served was between 6.2 and 7.7 years.
Section 745 was enacted in recognition that 25 years without parole eligibility was and still is longer than comparable periods in many of the western democratic countries. I hesitate to draw comparisons with the United States because capital punishment is
still used there. Nevertheless, even in the United States of America, a country known for its firmness in response to crime, the average time served by murderers who are not executed is 18 years at the federal level and 15 years at the state level.
If I may be permitted to paraphrase some of the language used in the 1976 debates with respect to this section, section 745 was enacted to offer a degree of hope for the rehabilitation of convicted murderers, as a protection for prison guards and in recognition that in some cases the public interest would not be served by keeping offenders in prison beyond 15 years.
As many members will know, there are those who would repeal this section in its entirety. I have been presented with strong demands from some quarters for the repeal of this section outright based on the arguments about public safety, about the appropriate denunciatory statement for what is arguably the worst crime in the Criminal Code and about the prospect of victims' families being revictimized by the public review conducted in front of a jury where the offender might have no reasonable prospect of succeeding.
The position I have stated publicly is that I have been looking at ways to amend section 745 in order to re-focus the provision so that it is available only in deserving cases. In my view, the status quo is simply not on and Bill C-45 is proof of that.
By the same token, I am not prepared to propose to this House, as others have done, that section 745 be repealed. In my view, as a matter of policy and as a matter of principle, this would not be the right thing to do.
Section 745 exists to recognize the possibility that offenders can change after serving 15 years of their sentence. Unless we are prepared to abandon all hope that people who have been convicted of murder can change, our challenge is to find a way to refocus the provision so that it is available only in those exceptional and deserving cases.
The amendments proposed in the bill now before the House are designed to achieve that objective.
Let me describe briefly the three elements of these changes. First, it is proposed to eliminate access to section 745 and the jury review entirely for all multiple murderers who may offend in the future. For this purpose, a multiple murderer would be understood as someone who murders more than one person, whether on the same occasion or not.
The rationale for this proposal is very simple. It is based on a principle found throughout the Criminal Code and criminal law jurisprudence that repeat offenders should be treated differently. The fact that it is a second or subsequent offence should be reflected in the penalty that person receives.
Second, it is proposed to create a screening mechanism whereby the chief justice of the superior court, or a judge designated by the chief justice, would conduct a paper review of the application brought by the person under section 745 to determine if there is a reasonable chance of success. That would be done before the application is allowed to proceed to the review jury. This proposal would apply not only to future offenders but to the present prison population as well, provided they have not brought an application before the amendments come into force.
The purpose of the screening mechanism is to help ensure that only those meritorious cases get a hearing before the section 745 jury. This is intended to address directly the concern of the families of victims that they may be brought into a hearing process by an offender who has no reasonable prospect of success.
Finally, it is proposed to change section 745 to require that the review jury must be unanimous in coming to the decision that the offender's parole ineligibility period should be reduced. Again, this proposal is to apply to the present prison population as well as to future offenders. This new requirement of jury unanimity will strengthen the role of the community jury in the review process.
Let me mention this on the subject of the role of the jury in the section 745 process. It is said by some that section 745 demonstrates that the criminal law is out of touch with the common view, that it is out of touch with the perspective of the average Canadian, that it does not reflect the community's desire in responding to crimes of violence. To that, I say that section 745 is just the opposite. It is an example of the community being directly involved in the administration of the criminal justice system.
In the amendments proposed under section 745, the first step would be that the offender has to persuade a judge, based on a written application, that the person has a case for a jury which has a reasonable prospect of success, based on the tests in section 745 itself.
The unmeritorious applicants will be screened out. Only those ones will go forward that in the eye of an experienced judge have a reasonable chance of success. Those cases that do go forward will not be considered and decided by a judge, will not be considered and decided by lawyers, nor by bureaucrats, nor by parole members or members of other administrative boards or tribunals.
Those cases that are screened as meritorious and go forward for hearing will be decided by 12 members of the community, often the very community to which the offender seeks to return if parole is eventually granted. Those 12 members of the community will be drawn from the streets, the coffee shops, the buses and offices, the
very people who elected us to Parliament, the very people in whose name it is said that section 745 is out of touch with the community and its values. It is members of those communities who will make the decision under section 745 about whether there is any further public interest to be served by that offender remaining in prison, perhaps for a period of 10 years more.
Jury members will have before them particulars of the offender and the offence. They will have before them any evidence that the victim's family may wish to give. They will have arguments from the applicant and also from the crown attorney who may oppose the application. Under the amendments proposed, that jury will have to be unanimous. All 12 of those average Canadians will have to agree that in this case, already screened by a judge, the offender should be given some reduction in the parole ineligibility period.
It will not result in the offender walking free. It will simply result in the offender being permitted at that date, set by the jury, to make an application for parole. It then becomes a question for the parole board whether it is consistent with public safety that the person be granted parole. Even then the person, for the rest of his or her life will be subject to whatever conditions the parole board imposes, and if those conditions are not respected that person will face reincarceration. Those are the facts. Those are the circumstances. That is the role of the community.
That is the way average Canadians reflect their values, participate in the process, and ensure that decisions in all these cases are firmly rooted in the views and the values of average Canadians. That is the strength of community juries and it is those juries that will be deciding these cases.
Let me also point out that at the first stage, this screening process before the judge that we propose, the onus will be on the offender to prove on the balance of probabilities that the application has a reasonable prospect of success. It will be for the offender to persuade the judge. Where the judge says no, where the judge screens out an applicant and says there is no reasonable prospect of success in this case, the person may not have his or her jury hearing. The judge may decide if and when the applicant will be allowed to apply again, but in any event the applicant may not reapply before another two years' time.
The net effect of the amendments proposed will be that section 745 is not repealed. We do not believe as a matter of principle or policy that repeal is the proper course. Section 745, and the faint hope it represents, has been an integral part of the sentencing regime for murder for 20 years. In those cases where applications have been brought and succeeded and offenders have been released, the record shows that the existence of this mechanism has not endangered the public's safety.
After listening to all the stakeholders in the justice system over the last two years, from judges to crown prosecutors and police, offenders and victims' families, I am persuaded that the section should be changed. The section should be improved and it should be refocused. It should not be available automatically at the option of the offender. There should be a screen to take the unmeritorious cases out. The jury should be unanimous and in future offences, those who take more than one life should not be eligible to apply at all.
Simply repealing section 745 would constitute this Parliament saying to the hundreds of people serving life for murder that in every case, regardless of the circumstances, there is an inflexible and invariable rule that the period without parole must be 25 years or whatever period is fixed by the trial judge for second degree murder, between 10 and 25.
It would be an invariable and inflexible rule excluding the role of the community jury in taking a look after 15 years, ignoring the fact that 15 years is the average time now in the laws of many western countries to whom we like to compare ourselves, as the maximum for murder. It would be ignoring the fact that before 1976 the average time served even for capital murder was less than 15 years before parole. So we do not favour repeal.
We say that it is an excessive reaction. We say that the principle of this mechanism is sound, it provides a role for the community, but we also propose improvement.
The effect of the improvements is that these applications will be denied if the screening judge says there is no reasonable prospect for success, if the jury decides that the application should be denied, or the jury concludes that it is unable to decide unanimously to reduce the period, or a judge presiding over a jury concludes, after a reasonable period of time, that the jury will not be able to reach a unanimous decision to reduce the parole ineligibility period. The application will be denied by the jury in those circumstances or where the jury is unable to decide the offender will not be able to make another application at least before another two years' time or within such other period as the jury may fix.
I am prepared to do this, partly because of the charter, but also for reasons of pubic policy. Let me return to the view I expressed at the beginning of my remarks. Section 745 represents the hope that offenders can change after serving 15 years of their sentence. I believe that hope must be maintained for exceptional and deserving cases.
I commend this bill to the House. I ask my colleagues to support it. With its enactment an important principle in the criminal law will be preserved. We will have respected the need for public safety. We will have encouraged rehabilitation which is a fundamental principle of the sentencing process. We will have shown sensitivity to victims. We will have reserved this procedure for the exceptional and the meritorious case. With that I invite my colleagues to support Bill C-45.