Mr. Speaker, I am pleased to also speak to an issue that has been dealt with widely and at length during the 35th Parliament, that is section 745 of the Criminal Code, and I would say, the Criminal Code in general, because this Parliament will go down in history as one of those that legislated the most with regard to criminal law.
We may have opposite views on section 745, as did my honourable friend from Charlevoix, who voted in favour of Bill C-234 that was introduced by our colleague from York-South-Weston and that called for the repeal of section 745, while others voted against it. I will come back later to the bill introduced by the hon. member for York-South-Weston.
I must first give some historical background to show how section 745 is neither fish nor fowl. These things sometimes happen in the Criminal Code. As we pointed out when Bill C-45 was introduced, this provision is somewhat peculiar.
Let us go back to 1967, 30 years ago. Since you were a young attorney at the time, you probably recall, Mr. Speaker, that the Criminal Code of Canada provided that capital murder was punishable by death. As a matter of fact, there had been no execution in Canada since December 6, 1962.
Using the royal prerogative, the government had systematically commuted the death sentences, the hanging sentences, one of the most infamous being that of Wilbert Coffin, in Quebec, who had been sentenced to death for murders committed in the Murdochville area, in the Gaspé region, after a trial that had left people with a bitter taste. At the time, people were not quite sure if Wilbert Coffin was really guilty.
I would say that Wilbert Coffin's execution in 1956 triggered the abolition of the death penalty in Canada, since it was one of the last times a person was sentenced to death and executed in Canada after a superior court trial that was never reviewed on its own merits by a court of appeal or by the Supreme Court of Canada.
It is somewhat disquieting to see a man deprived of the most basic right he possesses, the right to live, by the judgment of a single court, under circumstances that are a matter of concern, to say the very least.
In 1967, the federal lawmakers intervened in order to temporarily abolish the death penalty, for five years. There was no longer any need to use the royal prerogative, which had already been used an nauseam, to commute sentences.
People of my generation will recall the Léopold Dion case in the early 1960s. He was found guilty of the murder of a young child, and was apparently guilty of three other child murders as well, but the death penalty was not applied. It thus became unthinkable for that penalty to be applied to lesser cases in future.
The government of the day introduced a bill to suspend the death penalty for five years. Theoretically, it was revived briefly for a few months after that, until the House passed another bill, again for a five year moratorium, if I can use that word in this context.
This brings us up to the spring of 1976. The Trudeau government did promote certain human values. On constitutional issues, there is nearly universal agreement that his administration was a failure and a similar argument could be made in other areas as well, but in criminal matters or matters of criminal law, it certainly did promote such values. That must be said, all partisan considerations aside. Let us think, for example, of the reforms that abolished whipping, the reforms that enabled people taken into custody who were without assets to be released without having to post a cash bond, as they had had to in the past. Between 1970 and 1980, persons under the jurisdiction of the courts-in other words, all of us-saw their rights improved as far as criminal law was concerned.
Another Liberal government, the one we have during this 35th Parliament, has succeeded in virtually undoing everything the previous government had accomplished. We have seen the hon. member for Notre-Dame-de-Grâce, a former Liberal cabinet member, vote against this legislation, as very few others did. I believe that the hon. member for Kingston and the Islands also did, a few times, even on section 745, the object of today's motion before the House.
To put ourselves back in context, here we are in the spring of 1976, and the government is introducing a bill to definitively-I nearly said sine die -abolish the death penalty in Canada. Howev-
er, the government realized it did not have the majority it needed in the House to pass the bill. It was supposedly a free vote, although members of cabinet were expected to toe the government line, but it seems they were short five or six votes. Not all historians agree, but it was less than ten votes.
That is when the Trudeau government, which had not included section 745 in its initial bill, negotiated an unlikely compromise. To buy, or should I say obtain, the consent of some reluctant members, who with a little arm twisting could be persuaded to adjust their consciences accordingly, the government moved an amendment.
The amendment provided a minimum prison sentence of 25 years for a person sentenced to the maximum for first degree murder-in other words, life-before becoming eligible for parole. For second degree murder, the offender had to serve a minimum of ten years, depending on the court's decision.
However, since this was a concession to the hard liners, the government added a sweetener elsewhere for in the bill. The sweetener was section 745, which allowed offenders sentenced to more than 15 years imprisonment-which means all those who are convicted of first degree murder and second degree murder and have to serve a minimum of 15 years-to apply, after 15 years, to a judge of the Superior Court of a province, not just any judge but the chief justice, asking him to empanel a jury.
The judge has no choice, he has to empanel a jury, two thirds of which make a recommendation. No decision is even made. Before being amended by Bill C-45 in this legislature, section 745 provided that two thirds of the jury made a recommendation.
If the jury recommended parole, the inmate was not automatically freed, he could simply apply to the Parole Board. It was a stage allowing him to go to another door, and, with the time it takes in our legal system, the inmate could spend several months behind bars before being denied parole.
And then we had in this legislature Bill C-234, introduced by the hon. member for York-South-Weston, which proposed the repeal of section 745 of the Criminal Code. Everyone in opposition supported a review of section 745, given the circumstances of its creation and the fact that it had been in effect for 20 years. This is why we agreed to its review.
We did not agree to much else. Bill C-234, however, was clear at least; section 745 would be removed from the Criminal Code. You could agree or disagree. It was a free vote, because it was a private member's bill. In our party, most of the members were opposed. As I mentioned earlier, our colleague from Charlevoix voted for Bill C-234. Whether we agree with it or not, Bill C-234 takes an honest approach in that it is unequivocal: either section 745 goes or it stays.
At second reading, the government let the House vote overwhelmingly for Bill C-234 to go forward, only to let it get buried and die in committee as most private member's bills do. The government itself came back with Bill C-45.
To all intents and purposes, Bill C-45 repeals section 745 of the Criminal Code. Why? Because the criteria set in 1976 would now be much more difficult to meet, because they have been changed and the mark is definitely set much higher.
From now on, any inmate who wants to apply for early release under section 745 of the Criminal Code after serving 15 years, inasmuch as 15 years can be considered as early, will be required to first apply to a superior court judge, a modern day judge as appointed under the Constitution, and satisfy the judge that, at least on the face of it, there is a reasonable chance for his application to successfully be submitted to a jury.
Before, all inmates had to do was to apply to the chief justice of the province's superior court or supreme court and a jury had to be empanelled. Now, a judge designated by the superior court must at least consider written evidence. Because the common law is quite liberal in that regard, the judge may decide to hold a hearing if the court so pleases.
How much of an onus of proof will be borne by inmates? We cannot tell yet, because this particular provision has not really been challenged in court. We do not have jurisprudence to guide us in this matter; time will tell how much evidence our courts will require.
As I pointed out repeatedly at the Standing Committee on Justice and Legal Affairs, I fear this legislation might be applied differently in different regions of this country, depending on whether, where the judge is from, people do not put much faith in rehab or whether the circumstances of the crime for which the inmate is doing time are particularly aggravating, the judge could be tempted not to allow the case to proceed in the first instance.
It is also more difficult to get a recommendation under section 745, since each and every member of the jury must now be convinced, as opposed to only two thirds of them. This unanimity rule works well, for the purpose of determining guilt, when it is used in conjunction with the notion of reasonable doubt. Under our legal system, guilt must be proven beyond a reasonable doubt. This is why a jury's guilty verdict must be unanimous.
In our provincial courts, which deal with civil matters, it is not necessary to prove guilt beyond a reasonable doubt. There must merely be a preponderance of evidence, and a jury is not required to make a unanimous decision. Generally speaking, civil courts use the two thirds rule, as it was applied in Quebec until 1976, when civil trials by jury were abolished. Under that rule, it is enough to get four out of six jury members to agree. In a civil trial, it is
money, not the life or the freedom of a person, that is at stake, and the burden of proof is different.
But here the more strict criterion is used, the one that usually applies to the determination of guilt, and only for the purpose of a recommendation. This is wrong. Using the two thirds rule seemed quite appropriate and did not appear to pose any problems. We made a strong plea in committee to allow the victims, or those who represent them, to be heard when an application is made either before the jury, or before the National Parole Board, so that the board or jury members can have all the available information, including the views of the victims and their families and how they were affected.
The hon. member for Crowfoot explained on several occasions in this House that he has confidence in the jury system, provided members of the jury have all the facts. I agree with him. Jury members must have all the facts so they can render a fair and logical decision.
The bill that was passed, C-45, does not, in my opinion, allow enough information to be made available to the jury making the decision, to the judge authorizing procedures, or to the National Parole Board.
Finally, an additional condition Bill C-45 imposed that did not exist before is that, in the case of multiple murders, an offender is not eligible to apply under section 745.
At first blush, one might say this was a good change, because section 745 is not for serial killers. But someone who has committed more than one murder is not necessarily a serial killer, someone who enjoys killing for money or some other form of remuneration. It could be someone who has held up a bank and killed two people while doing so. Such an individual is no longer eligible for parole; he must serve his 25 years.
I think that Bill C-45 was an awkward attempt by the government to keep everyone happy by telling hardliners: "You see, we have, to all intents and purposes, repealed the provisions regarding release after 15 years", while saying to those who are more liberal, with a capital L: "Look, we believe in rehabilitating offenders, because we are still letting them apply after 15 years, if their behaviour has been good".
What I say is that a law that does not apply in the same way in Vancouver, Edmonton, Quebec City and Halifax is a bad law. For once, we have the jurisdiction to take action; nobody is questioning the jurisdiction of the federal Parliament over criminal law. It would be interesting not to have to speak about the Constitution today, because it is clear in our law, in section 91 of the Canadian Constitution, 1867, that criminal law is a federal responsibility. I say that the federal Parliament should have given more thought to the equality of application of the new section 745 as amended by Bill C-45.
There may be recourse under the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms if someone is treated differently, if statistics show that people in Quebec are systematically released after 15 years, while those in Edmonton are not. Is there inequality? I think they have opened a Pandora's box of challenges, constitutional challenges.
But I would rather have seen them go with the vote on Bill C-234. That bill was clear and we would not have been in the convoluted situation we are in now.