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House of Commons Hansard #78 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was park.

Topics

Serious Time for the Most Serious Crime ActGovernment Orders

11:15 a.m.

NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, the member is right. The whole saga of the way the crime agenda has been promoted by the Conservatives is a political promotion. It is about the optics of what they are doing, not about addressing a serious legislative package.

In fact, many of the bills the Conservatives had in the previous Parliament they killed when they prorogued Parliament. Then they accused the opposition of delaying them. It was the role of the previous chair of the justice committee that stalled many of those bills coming forward. These antics have come more from the government in hijacking its own agenda.

In this current session the member is right. A series of criminal justice amendments could have been put together in an omnibus bill, which could have had a reasonable discussion through the justice committee. However, the Conservatives, I think for purely political partisan reasons, are trotting them out one at a time and then using that as leverage and pressure to put out their political agenda.

This is not the way to do public policy and it is not the way to do the public's business.

Serious Time for the Most Serious Crime ActGovernment Orders

11:15 a.m.

Bloc

Roger Pomerleau Bloc Drummond, QC

Mr. Speaker, I listened carefully to the speech by the member for Vancouver East.

She mentioned the case of Mr. Abdelrazik, who is currently being detained in another country. The government was ordered by the court to repatriate him, which it is not doing, and it seems that it does not intend to do so in the near future. We have even heard that it may appeal the court's decision. Members will remember the recent case of Omar Khadr, who is currently detained at Guantanamo Bay. He is accused of criminal acts, but they occurred when he was a child soldier, which is recognized by the UN as a special case. Under UN regulations, the Canadian government could repatriate him because he is a Canadian citizen and was a child at the time of the alleged crimes. He was left in a prison at Guantanamo Bay for years to be tortured, even though the regulations and legislation would have allowed for his repatriation.

Under the circumstances, does my colleague not believe that the Conservative Party picks and chooses when to apply the law and order it is always talking about here in the House?

Serious Time for the Most Serious Crime ActGovernment Orders

11:15 a.m.

NDP

Libby Davies NDP Vancouver East, BC

Mr. Speaker, I would agree with the member. It is a very selective law and order agenda and it is a very selective political agenda as to whose rights are deemed to be upheld.

How many times in the House have we raised questions around the situation of Mr. Khadr? How many times have we raised the desperate situation of Mr. Abdelrazik? We have been completely stonewalled and ignored by the government.

I think we are all aware of the terrible contradictions that are going on here. The government on the one hand chooses to be so repressive in its legislative regime, in terms of the Criminal Code, without regard to what the impact will be on our justice system. However, on the other hand, when there are individual cases and situations involving the personal dignity and human rights of people, the government has remained silent, in fact more than silent. It has stonewalled and refused to even abide by court decisions and legal parameters such as international law.

That is pretty horrifying, but we have come to expect that from the government unfortunately. All we can do is to keep the pressure on it to point out these contradictions and to try to change them.

11:15 a.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

Order, please. I have the honour to inform the House that a communication has been received as follows:

Government House

Ottawa

June 18, 2009

Mr. Speaker:

I have the honour to inform you that the Right Honourable Michaëlle Jean, Governor General of Canada, will proceed to the Senate Chamber today, June 18, 2009, at 4:30 p.m. for the purpose of giving royal assent to certain bills.

Yours sincerely,

Sheila-Marie Cook

Secretary to the Governor General and Herald Chancellor

The House resumed consideration of the motion that Bill C-36, An Act to amend the Criminal Code, be read the second time and referred to a committee.

Serious Time for the Most Serious Crime ActGovernment Orders

11:20 a.m.

NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I am pleased to have the opportunity to participate in the debate on Bill C-36, An Act to amend the Criminal Code, on the right of persons convicted of murder or high treason to be eligible for early parole. The short title of the legislation, creatively crafted by the Conservative government, is the “serious time for the most serious crime act”, which is a bit of a strong misnomer for the legislation.

From outset, the principle of the legislation, which is to eliminate the possibility of revision to parole for people who have committed murder or who are sentenced to life for high treason, is completely wrong. I am strongly opposed to the principle of the legislation. We are not well served by this process of a judicial review, of citizen review in fact, and the faint hope clause should not be part of our criminal justice system.

We have been well served by this. It has encouraged rehabilitation in our prison system. It has allowed for a measure of discretion to review the parole eligibility of people who have been sentenced to a life in prison. It has also encouraged a strong measure of citizen involvement in making the decisions on that very important process.

The legislation takes us absolutely down the wrong road, with no evidence that could support it. I do not think we have any evidence that this will make Canadians safer and that this will improve any of the outcomes we hope for from our criminal justice system or from our corrections system.

The current Section 745.6 of the Criminal Code, dealing with judicial review, enables offenders serving life in prison, with parole ineligibility periods of more than 15 years, to apply for a reduction of that period. The review is not intended as a forum for retrial of the original offence. The focus is instead on the progress of the offender after having served at least 15 years of his or her sentence. That is the description from the Department of Justice of the intent of the legislation.

It is important to review the process that is involved when the faint hope clause is engaged by someone serving a life sentence in prison. The process people have to go through is a very rigorous one that involves several stages.

The first stage is an application to the chief justice of the province in which the person was convicted. The chief justice, or a designated Superior Court judge, reviews the written materials from the crown and the applicant. Then that judge determines, on the basis of the written materials, whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed. If the judge decides that, the next step is a jury is empaneled to hear the case. If the judge decides there is no reason to proceed further, the appeal process stops at that point and there is no further follow-up.

The jury, when it is constituted and empaneled, then considers a number of issues when it looks at the application from the person who is imprisoned. It considers, when it is determining whether there should be a reduction of parole ineligibility, the character of the applicant, his or her conduct while serving the sentence, the nature of the offence, information provided by the victim's family members about how the crime has affected them, and any other matters the judge has considered relevant in the circumstances.

A panel of 12 citizens considers those factors and makes the decision about the reduction of the period of ineligibility. The decision of that jury, to reduce the ineligibility period, must be unanimous. We are not talking about a simple majority or anything like that. The jury can reduce the parole ineligibility period immediately or at a later date, or deny any reduction.

When the jury unanimously decides that the number of years to be served should be reduced, it then decides by a two-thirds majority the number of years that must be served before the inmate can apply to the National Parole Board. If the jury decides the period of parole ineligibility is not to be reduced, it can set another time at which the prisoner can again apply for judicial review. If no date is set, then the prisoner can reapply after two years for this process to be engaged again.

It is a very complex process. The process initially involves a judge and then a jury of 12 citizens, two of the important features of our system. There is judicial discretion involved and there is a strong citizen involvement component. The community is absolutely represented in the decision that someone's parole should be reduced. However, that is not the end of the story, because then the parole board has to do its work. The decision about whether the person gets out on parole is made by the parole board in its usual fashion.

I think it is an outstanding process, frankly. The reality is that such offenders are on parole for life. Even if they are ultimately granted parole through this process, they remain on parole for life.

It might be important at some stage to review the functioning of this faint hope clause and the process of judicial review. I think that is far different from the context of a bill that starts from a point that says this process should not continue, that it should be eliminated and repealed. I cannot support that kind of approach.

It is important to look at the statistics in how this process has unfolded. We have statistics from 1987 to 2009. In that period, 991 prisoners were in the category of having committed murder or high treason and were sentenced to life in prison. That is the group of people who are eligible to apply for consideration in this process.

One hundred and seventy-four decisions were made by the court to engage this process. It is a very small number. It is certainly not a majority. In fact, the vast majority of prisoners do not even apply to engage this process, because they realize there is no reason for it to succeed.

In the 174 cases where the judge decided that the process could continue, only 144 of them were ultimately granted reductions. Even then the jury further reduced the number of people who could be considered. Furthermore, the National Parole Board only granted parole in 131 of those cases. One can see that at every stage of this process it is fully engaged and decisions are carefully made.

Of the 131 folks who did get early parole as a result of this process, 83 are on full parole and 18 are on day parole, meaning that they return to an institution at some point during the day. Three were deported. One was temporarily detained. Twenty-six are currently incarcerated. Twelve are deceased. One is on bail.

It is very important to look at those 26 who are still incarcerated and to point out that only four of those incarcerations, as far as I can determine, are the result of reoffences and further criminal activity. None of them is the result of murder. It is very important to realize that none of these people have reoffended in the same way that they did when they were originally convicted. That shows the great success of this program.

Of the four who reoffended, three were related to drug crimes. One was a very serious drug crime. One of the four who reoffended was related to armed robbery, which again is a very serious issue.

This shows the success of this program. It shows that compassion has a place in this process. It shows that we have to honour the rehabilitation process and say that when it is working, there should be positive consequences for that. People who demonstrate they can change their lives while incarcerated in Canada should have this option.

We also want to make sure that this process is fair to the victims of those crimes. As someone who had a close friend who was murdered, I want to make sure that victims are treated fairly and supported through this kind of process. However, I do not believe that means eliminating the possibility of engaging this process. It has served us very well. It has benefited the community, because people who are in prison are a burden to society. If someone can be a contributing and successful member of society, that is an important factor to consider. It is something we should be engaging every time that is possible.

This process has the necessary checks and balances to make it a very successful program. This is very ill-advised legislation and I will make arguments very strenuously against it.

Serious Time for the Most Serious Crime ActGovernment Orders

11:30 a.m.

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Mr. Speaker, England, Belgium and other countries in Europe have similar faint hope clauses and legislation. I wonder if the member could tell us whether there is any success or good stories emanating from the other countries that have similar types of legislation.

Serious Time for the Most Serious Crime ActGovernment Orders

11:30 a.m.

NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I do not think we have to go farther than our own back yard to find the success of this program.

As I was saying, the program has checks and balances. There is involvement by the judiciary, citizen jurors and the National Parole Board. It ensures people who are released on parole stay on parole and have the supervision, control and support for the rest of their lives. The program has been successful. The fact that none of the folks who have been released on parole under this program have committed the same offence for which they were originally incarcerated shows the incredible success of this program. Incredible checks and balances have been built into it.

Any system of incarceration and punishment has to have a compassionate side. It has to have a side where people who demonstrate that they can rehabilitate themselves have access to other options. The whole system should not be based solely on punishment.

Our experience in Canada demonstrates that clearly. We should be a model for the world. I know other countries have adopted the same kind of model and it is functioning successfully for them as well.

Serious Time for the Most Serious Crime ActGovernment Orders

11:30 a.m.

Conservative

Dean Allison Conservative Niagara West—Glanbrook, ON

Mr. Speaker, I will be splitting my time with the member for St. Catharines.

I am very pleased to speak to this very important bill that will fulfill our platform commitment to repeal section 745.6 of the Criminal Code, the so-called faint hope clause that allows a criminal serving a life sentence to apply for early parole.

I would first like to commend the hon. Minister of Justice for bringing forward this legislation. This issue is an important one to me. In the last Parliament I was pleased to table a private member's bill, seconded by the hon. member for St. Catharines, that dealt with this very issue.

The Criminal Code currently provides that the offences of first and second degree murder have mandatory terms of life imprisonment. These offences also have mandatory periods of parole ineligibility.

For first degree murder, an offender must spend a minimum of 25 years in prison before being eligible to apply for parole. For second degree murder, an offender must spend a minimum of 10 years in prison before being eligible to apply for parole. This minimum 10 year period can be increased by a sentencing court up to a maximum of 25 years, depending on a variety of factors, including the circumstances of the crime.

While this may seem like a very long time, the reality is that the faint hope regime provides a mechanism for offenders to seek to have this parole ineligibility period reduced. The current faint hope process is threefold.

First, an offender must convince a judge that he or she has a reasonable prospect of success, that the application will succeed. The courts have already told us that this judicial screening test is low and is not much of a hurdle. Second, if the judge is convinced, the applicant can bring the application for early parole to a jury. The offender must then persuade the jury of 12 ordinary Canadians to unanimously decide to reduce the number of years of imprisonment that the applicant must serve without eligibility for parole. If the applicant is successful with the jury, at the third stage of this process, he or she may proceed directly to the National Parole Board to apply for parole.

Most successful faint hope applicants end up being paroled. There are several important time limits for unsuccessful faint hope applicants that are important to know for the purposes of understanding the reforms proposed in Bill C-36.

If unsuccessful during the first two steps in the faint hope application process, the judge or the jury can allow the applicant to reapply to a judge at a later date. The judge or jury may even decide that a particular applicant may never apply again. However, if the judge or the jury rejects the application but does not bar further applications or set a new date at which the offender may reapply, a minimum statutory time period kicks in and the applicant can automatically reapply in two years.

As I mentioned, the majority of those who are successful on a faint hope application are ultimately granted parole by the National Parole Board. What this means is that murderers who are supposed to be serving up to 25 years in jail before applying to the National Parole Board are getting out of prison earlier than they would be if they had to serve the entire parole ineligibility period that they were given at sentencing.

The rationale for the bill before the House is very simple. Allowing murderers a chance, even a faint one, to get early parole is not truth in sentencing. Truth in sentencing means that those who commit the most serious of crimes do the most serious time. That is what Bill C-36 aims to do, to restore truth in sentencing for murderers and to keep dangerous criminals in prison for longer periods of time.

I now propose to delve a little more deeply into the important reforms we are proposing in the bill. The proposal is, in its simplest form, twofold: repeal the faint hope clause for all future murderers and toughen the regime for murderers currently in prison.

With respect to the repeal, the bill would eliminate the faint hope regime for all those who commit murder or high treason after the coming into force of the act. As a result, these offenders would have to serve their entire mandatory parole period that was given at sentencing.

For example, if individuals commit murder after the bill comes into force and are convicted of first degree murder, they would have to serve the full 25-year parole ineligibility period before being eligible to apply for parole. Under the current regime, these murderers, those who have intentionally or unlawfully taken a life, would be able to apply at the 15 year mark of their sentence to have the 25-year parole ineligibility period reduced from 25 to 22, 20 or even 15 years.

Under the new regime proposed in Bill C-36 these murderers would have no chance at any point before the expiry of their 25-year parole ineligibility period to apply for parole. The faint hope regime would be gone, as we committed to do. No more would these murderers get the chance to apply to get out of jail early.

To be compliant with the charter, the repeal would not apply to those currently serving a sentence. Those currently in the system would still be able to apply under the faint hope regime. However, the reforms include a well-tailored scheme that would considerably toughen the regime for them.

This new regime would establish a higher screening test at the first stage where the judge examines the application. As I mentioned, the courts have indicated that the current test, a reasonable prospect of success, is not that high a hurdle.

We will make this test tougher. Applicants for faint hope would have to prove that they have a substantial prospect that their application will proceed. This would prevent less worthy applications from going forward.

We are also proposing a longer minimum period of time before unsuccessful applicants can reapply to a judge. Right now, the minimum period an offender has to wait to reapply to a judge is two years. Under our proposal, the individual would have to wait a minimum of five years.

For example, if a murderer who has served 15 years applies and is rejected by the judge, that offender would have to wait at least five years or until the 20 year mark of his or her sentence before reapplying.

The reforms also propose a new five year delay period during which offenders cannot apply if they fail to submit an application within a new three month window for faint hope applications.

The three month time limit would apply in the following situations.

First, it would apply to all those offenders who have served at least 15 years of their sentence and have not yet applied. There are many offenders in prison now who have served 15, 16, 17 and more years but who have not yet applied. These offenders would have to make an application within three months of this legislation coming into force or they will have to wait five years.

Second, it would apply to those offenders who are serving a sentence and have not reached the 15 year mark. These individuals could have served four years or eight years or 10 years when the bill passes. At the 15 year point exactly, all of these murderers will have to bring an application within three months or wait another five years to do so.

It is important to note that these proposals would also ensure that offenders do not keep victims' families anticipating whether an application will be forthcoming.

As I noted briefly, if under both examples an offender does not apply, the proposals in Bill C-36 would impose a five year period following a three month limit during which an offender could not apply again.

For example, offenders who have served 15 years at the coming into force date, but do not apply within the three month limitation upon reaching this date, will have to automatically wait until the 20th year of their sentence before bringing a first application.

Third, the three month limitation will apply at the expiry of the longer statutory minimum period of time of five years, for any offender who reapplies to a judge. If offenders apply at year 15 and a judge determines their application will not go forward to a jury, the individuals cannot apply again until the 20 year mark of their sentence.

At that point, the 20 year mark, the three month time limit starts to run. Once it expires and the offenders did not bring an application, they could not reapply for another five years.

Essentially, these reforms provide a higher hurdle at the outset for offenders by ensuring that they must bring an application or reapply within the new limitation period, three months, or wait the statutory mandated five years.

In short, these proposed reforms include this well-tailored scheme to respond to concerns raised by the public and by victims that the faint hope regime as presently constituted allows for far too lenient treatment of murderers.

The reforms set out in Bill C-36 would allow us to meet the concerns of Canadians, that murderers do the time they have been given and stay longer in prison than they do now.

These proposed reforms would also ensure that the families and loved ones of murder victims are not forced to rehear the details of horrendous crimes again and again as they are sometimes required to do under the present regime.

I support the bill and I call on other members of the House to do so as well.

Serious Time for the Most Serious Crime ActGovernment Orders

11:40 a.m.

St. Catharines Ontario

Conservative

Rick Dykstra ConservativeParliamentary Secretary to the Minister of Citizenship and Immigration

Mr. Speaker, I want to thank my colleague from Niagara West—Glanbrook who did an admiral job this morning describing and outlining Bill C-36. I also wish to thank him for his efforts in moving the private member's bill in the last Parliament that would have rid the country of the faint hope clause and the inspiration of that private member's bill leading to a government piece of legislation. It is not often that happens. It is obvious that the government and the justice minister see the importance of moving this piece of legislation forward.

It is my pleasure to rise today to speak in strong support of Bill C-36, Criminal Code amendments that will put an end to the so-called faint hope provision. It is not often that we repeal or eliminate a provision of the Criminal Code, so some explanation of the faint hope provision is needed before we discuss the bill before us.

What is the faint hope provision? The faint hope provision applies to those who commit murder, the most serious offence in our law. The faint hope provision is in fact a section of the Criminal Code, section 745.6, which was first enacted in 1976 when Parliament replaced death sentences for murder with mandatory life terms of imprisonment and parole ineligibility periods: 25 years for first degree murder and a minimum of 10 years and up to 25 years for second degree murder, and 25 years for high treason.

Remember that a life sentence is indeed for life and for a murderer that is exactly how it should be. Offenders may eventually be released on parole after 25 years but those offenders are serving their life sentence under the conditions of parole.

The faint hope clause permits an offender serving a life sentence to apply for a chance to have parole earlier than prescribed. So after 15 years of a life sentence an application could be made for a reduction in the number of years of imprisonment without eligibility for parole.

I should emphasize that this not a parole application but rather a step before a parole application. The 15 years in prison does not reflect the severity of the crime of murder and the chance of parole after 15 years. It simply does not reflect what Canadians expect of a life sentence.

This government promised Canadians that we would get tough on crime, that we would hold offenders to account and we would show compassion and respect for victims and the families of victims.

The government has delivered with important reforms including addressing dangerous offenders, gun crime, organized crime, drug crime, auto theft and identity theft. This government delivers what it promises and Bill C-36 delivers on our promise to get rid of the faint hope clause and ensure that murderers serve sentences in jail until they are ready to be released on parole.

The people of Canada have long questioned why a murderer who receives a life sentence and is required to serve 25 years before seeking parole should be able to get any chance of parole earlier. Many victims have said that it is the victims that receive the true life sentence because their family member is gone forever.

Ironically, while 15 years may seem like an eternity for families mourning the murder of a loved one, 15 years seems far too soon for families to deal with a faint hope application by the offender and the possibility of a parole hearing.

Victims who have attended faint hope hearings have said that this process causes them to relive the whole tragedy of the family member's murder and the trial process that led to the conviction of the offender. No one asks to be a victim and no one should have to be revictimized again and again by our justice system.

Our justice system has changed over the last 20 years and victims now have a greater role. I have witnessed firsthand what victims' families have to go through in the St. Catharines community, what it means to have to face the possibility of a murderer getting out earlier than the sentence that he or she was given.

Some may suggest that victims of crime should simply rely on the crown and the judge, and avoid the additional trauma, but every family member of a murder victim will agree and will tell us that they are there for the memory of the victim, and to ensure that the judge is aware of the impact that the murderer has had on their lives. They want to ensure that the safety of the community and their safety is considered.

Bill C-36 addresses these concerns, but what exactly does the bill do? This reform will bar everyone who commits murder or high treason in the future from applying for faint hope. Those who commit murder after this law comes into force will no longer be eligible to apply for an earlier parole eligibility date after serving 15 years of their sentence.

The reforms in Bill C-36 respect the fundamental legal principle that the law cannot change retroactively to, in effect, change the sentence of a person who is already serving or awaiting that sentence. The bill will not bar an offender completely from access to faint hope in the same way as is proposed for future offenders. But even though some “lifers” will still be entitled to apply for faint hope, there will be new rules and new procedures in place.

These new procedures will apply to offenders who are already serving a life sentence, to those who are awaiting a life sentence, and to those who have been charged, but not yet convicted of first or second degree murder or high treason.

There is currently a three-step process involved for offenders applying for faint hope. The new procedures in Bill C-36 will make some changes to these three steps. First, an applicant must pass a screening test conducted by a superior court judge who will decide whether the applicant can go on to the next stage of the process.

Some courts have suggested that this test is relatively easy to meet. Bill C-36 makes this a higher test for offenders from “a reasonable prospect” to a “substantial likelihood” of success. This will screen out most of the most undeserving applicants.

If unsuccessful at the first stage, the applicant can apply again in two years unless the judge makes the period longer. Bill C-36 will increase this to five years. This will mean an offender with a 25-year parole ineligibility period, for example, can only make two faint hope applications at the 15 and at the 20 year mark.

The change from two to five years will create more certainty for victims' families about when a faint hope hearing will occur and reduce the trauma that these hearings often inflict on them. Victims' families will know that if they must face a subsequent faint hope hearing, it will be at least be five years down the road. It still is not easy, but it means it simply will not happen every two years.

Second, at present, an applicant who successfully gets past the first stage must convince a 12 member jury that he or she should be able to apply for early parole. If the jury unanimously agrees that the offender should be able to apply early, it also decides when that application may be made. If the jury says no, the offender can reapply to a judge at two years unless the jury makes that period longer. Bill C-36 will change this to a five year period.

Under the current system an offender can apply for faint hope at any point after reaching 15 years in his or her life sentence. Bill C-36 will set a three month window on faint hope applications. This means that once an offender is eligible to apply for the faint hope, the application must be made within three months of the date of becoming eligible. If this three month window is missed for whatever reason, the offender will have to wait a full five years to apply again. This offers victims some certainty about when the faint hope application may arise rather than wondering when they will be faced with an application that the offender could bring at any time after the 15 year mark.

Third, in the event that the offender is successful and they are given a chance to apply for parole earlier than prescribed in their sentence, they must then apply to the National Parole Board which will determine whether parole should be granted and on what conditions.

Bill C-36 is not making any changes to the law that governs parole, only to the faint hope or the step before parole.

In summary, these procedural changes will apply to everyone who commits murder, or who is arrested for murder, or who is convicted for murder before the date the amendments come into force. All those who commit, or are arrested for, or who are convicted for murder on or after the coming into force of the bill will not be able to apply for faint hope at all.

Bill C-36 closes what has been described as a “loophole for lifers” in a way that balances respect for the law with respect for the rights of victims and their families.

This government stands up for victims of crime and stands up for law-abiding people of Canada. Bill C-36 is an important step in our strategy to hold offenders accountable and to ensure truth in sentencing. Serious crime deserves serious time and Bill C-36 reflects that goal.

I urge hon. members to give the bill their full support.

Serious Time for the Most Serious Crime ActGovernment Orders

11:50 a.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Mr. Speaker, Bill C-36 is a bill that the Bloc Québécois wants to see referred to committee, but I can offer no guarantees in this House that we will support the bill at third reading. We need more information. We want to understand the real impact of the bill, but obviously we think it is a bill that needs to be seriously considered in Committee.

In 1976, the death penalty was abolished and murder was reclassified, if you will, into two categories: first degree murder and second degree murder. In both cases, the punishment is imprisonment for life. The difference is in respect of parole eligibility. For first degree murder, the murderer must serve at least 25 years of their sentence before being eligible for parole. In the case of second degree murder, they must serve at least 10 years of their sentence, other than in certain exceptional cases, for example where the case involves an intentional murder under the Crimes Against Humanity and War Crimes Act, where it was a question of the circumstances surrounding the commission of the murder, or where the murder was a criminal organization offence.

The faint hope clause, as it is called, is found in section 745.6 of the Criminal Code, which provides for possible eligibility for parole. That section was added to the Criminal Code when the death penalty was abolished and murder was reclassified as first degree or second degree murder. We must remember the reason why section 745.6 was added to the Criminal Code. There were essentially three reasons. There was a desire to offer hope to offenders who demonstrated some capacity for rehabilitation; there was a desire to provide motivation for good conduct in prison; and there was also a desire to recognize that it was not in the public interest to keep someone incarcerated, in certain circumstances, beyond 15 years. Obviously, I would remind all members of this House and all those at home watching that the faint hope clause is an exceptional provision that comes into play before eligibility for parole.

The faint hope clause procedure, as my good colleague from Abitibi knows, has relatively clear rules. In order for that provision, which is found in section 745.6 of the Criminal Code, to apply, there is of course a three-step process. The first step is screening by a judge. If my information is correct, that is in fact the chief justice of the superior court. The judge examines the application and must determine the potential, the real prospect that a jury will agree to allow the applicant to be granted early parole. So first, the chief justice of the superior court where the murder was committed must hear the application. Second, the judge must agree to empanel a jury of 12 members, and that jury must agree, by a two-thirds vote, that parole, what I would call early parole, will be granted. And third, of course, the application is submitted to the National Parole Board, which has full authority to accept or deny the application. There is a clear set of rules for the process: it is examined by the chief justice of the superior court, a 12-member jury is empanelled and the application must be accepted by two thirds, and it is assessed by the National Parole Board.

I might go into a little more detail regarding the process to be followed when one wishes to invoke section 745.6. I would say that, yes, persons who commit first degree or second degree murder must be given exemplary sentences. However, up to a certain point, should we not ask ourselves as parliamentarians whether there are not circumstances where it would be desirable for an individual, after 15 years of detention without parole, to be able to exercise this provision, since justice is never automatic, and never one-size-fits-all? With its three steps, does the process not offer sufficient guarantees to stand as a safeguard? People will study the merit of this application. There is no risk of frivolous applications that will be accepted even though an individual does not deserve access to early parole.

I am going to describe the three steps in some detail.

First, the applicant must convince the chief justice or a designated judge in the province of the conviction. The applicant, who is normally behind bars, must convince the chief justice that there is a real possibility of the application being successful. For example, multiple repeat offenders, that is, people who have committed several murders, have no chance of their application succeeding. The application is not even admissible, and the chief justice could not permit the process to be started.

If the chief justice or the designated judge finds, to his best understanding of the case, that two-thirds of the jury is not likely to allow the applicant access to some kind of early parole, under section 745.6 of the Criminal Code, the applicant fails. The judge must then set a waiting period, which is generally two years, before a new application may be made. The judge may even set a longer period. For example, I am an applicant. I am presently on parole. I show real signs of rehabilitation. I have served the 10 or 15 years of detention without parole. I appear before the chief justice of the superior court. He may tell me to come back in two years or some other time period which he finds to be reasonable.

Second, the applicant must convince a jury of 12 citizens who have to decide on this. Let me go back, I have made one little error, reminding me of my fallible human nature. It was like that before, but the process was revised in 1999, and the jury now has to decide unanimously, not in a proportion of two-thirds. I would have expected the hon. member for Abitibi—Témiscamingue to whisper that to me. I do not hold it against him, but I urge him to remain vigilant. So it is not two-thirds of the jury, but the entire jury that must accept the application for early parole.

If the jury refuses, we know how it works. A jury is constituted from certain lists. Of course, in a trial, the way that the public is involved in the administration of justice is through the constitution and presence of a jury. If the jury refuses, but does not prohibit the filing of new applications, another application may be made, once again, after two years or after a longer period, as the jury may decide. If the jury accepts, on the other hand, it has to set a new period, which will be reduced.

Third, the jury will obviously consider the application, deliberate and approve or reject it. If the application is approved it will be sent to the National Parole Board.

I looked for statistics that would give us an idea of the scope of this phenomenon and have some. As of April 9, 2009, relatively recently, 265 applications had been submitted under section 745.6. Of that number, 140 had been approved and so 140 individuals had been given a period of time prior to their eligibility for parole.

With a ratio of 140 to 265, are we not approaching 45% or 50%? Can I say that?

The National Parole Board granted parole to 127 applicants. I will now provide some slightly more specific statistics. Thirteen individuals subsequently returned to prison—we can speculate on the fact that they were returned for breaking parole and failed to meet the conditions of it—three were deported, 11 died and were recalled to heaven—fate, it could be called—one was on bail, one was in provisional detention, and the most important of the statistics, 98 individuals of 127—we are closer here to two thirds—met the conditions of their parole.

In our assessment of the situation, we have to say that, when the stages set out in section 745.6 have been followed, two thirds of the individuals who were eligible early for parole met the conditions of it.

My colleague from Argenteuil—Papineau—Mirabel is wise and as a solicitor misses nothing. I do not know whether it is because he is used to this with wills, but he reminded me that adding the 11 dead to the 98 individuals who met the conditions of their parole makes the proportion higher than two thirds.

I would like to return to the 98 individuals, because it is here the Bloc's question lies. Why is there a need to repeal a provision of an exceptional nature? We are talking about 127 individuals in all these years. Is it not reassuring in the administration of justice to know that the provision exists?

People can commit second degree murder when they lose their mind, but it is still a reprehensible act and there are still innocent victims. It is certainly not my intention to minimize the seriousness of second degree murder. However, are there not situations in which individuals sentenced for second degree murder with no previous record show they are truly rehabilitated?

I will give you an unfortunate but convincingly instructive example.

Madam Speaker, allow me to give an example. You learn that the person you love, who has been sharing your life for a number of years is, unfortunately, cheating on you with the neighbour, and the community knows it. You are in a rage and commit murder out of jealousy. You are a respected individual and have responsibilities in your community.

You are liked by her peers. You have always led a good life. You have had significant responsibilities in the community.

Then, in a moment of craziness, you kill your her husband when you find out he has been cheating on you. You are therefore convicted of second degree murder. This is an act, of course, that we as a society must punish severely. You find yourself behind bars. In this specific example, though, would you not be the kind of person who should be eligible for early parole?

If this Conservative bill ever passes and the faint hope clause does not exist, would we have made a mistake? We would have deprived ourselves of a provision in the administration of justice that can be beneficial in some circumstances.

I want to provide a few statistics on the people who could be eligible. At the present time, 4,000 prisoners are serving life sentences in Canada. According to the most recent statistics of April 9, 2009, 1,001 prisoners could be eligible for early parole. Four hundred and fifty-nine of them have already served at least 15 years of their sentence and could therefore apply. When the bill gets royal assent, at least 459 people will be eligible to apply under section 745.6 of the Criminal Code. Five hundred and forty-two offenders will not have served 15 years yet but will soon be able to apply. On average, 43 of the 1,001 prisoners will be able to apply every year.

If things continue and section 745.6 is maintained, nearly 50 people a year will be eligible. This does not mean, of course, that the juries or the National Parole Board will grant their request, but they will be eligible.

Bill C-36 would entirely eliminate—and before the day on which the change comes into force—the right of all offenders to apply for early parole who were convicted of first or second degree murder or high treason. In addition, the last clause in the bill tells us this day will be determined by an order in council.

Parliamentarians must realize that if Bill C-36 passes, section 745.6 of the Criminal Code will be revoked. I just gave the example of a crime of passion. In committee, we are going to try to find out who has benefited from this section in order to know whether it should exist. We have no fixed opinion yet. We are prepared to listen to all sides. Just as much, though, as we want to send this bill to committee, we are concerned about the possibility that we might be depriving ourselves of a tool that is well suited to certain cases.

The bill would also tighten the conditions under which all offenders convicted of first or second degree murder or high treason before the day on which the change comes into force may make an application, including those who are already serving their sentence. This means that there would be four changes to the current procedure. First of all, tougher selection criteria will apply for judicial review

Madam Speaker, you are indicating that my time is up but I started my remarks at 11:55. Since I was given 20 minutes to speak, I could continue until 12:20. Am I mistaken here?

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12:10 p.m.

NDP

The Acting Speaker NDP Denise Savoie

According to the clerk, you have had 20 minutes for your presentation.

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12:10 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, if I may, and without questioning your ruling, I really took the floor at 11:55 a.m. Therefore, I feel like the House is depriving me of five minutes. I do not want to take up the time of the House, but I clearly recall taking the floor at 11:55 a.m.

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12:10 p.m.

NDP

The Acting Speaker NDP Denise Savoie

I am sorry, but I am not in a position to assess the veracity of your remarks. I am convinced that, based on your observations, you are right, but I arrived mid-way through and the clock shows that 20 minutes have run by.

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12:10 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, in order to clear any ambiguity, in all friendship, and again without questioning the chair's ruling, could you ask for the consent of the House to give me five additional minutes for my presentation, since I am the Bloc Québécois critic on justice, and since I am the second speaker? I would really appreciate that.

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12:15 p.m.

NDP

The Acting Speaker NDP Denise Savoie

According to the clock here at the table, the hon. member began his remarks at 11:53 a.m. I wish to remind him that there is also a period of 10 minutes for questions and comments.

If the hon. member insists, I can ask for the unanimous consent, but I still want to remind him that he has 10 minutes left for questions and comments.

Questions and comments. The hon. member for Edmonton—St. Albert.

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12:15 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Madam Speaker, I would certainly like to commend and thank the member for Hochelaga for his comments and for his passion on this issue. He is so passionate and wanted to speak some more, so I am going to give him the opportunity to answer a question.

He talked about the procedure and the effect on certain convicted individuals. He cited a hypothetical example of a spurned lover. He talked about the processes. However, at no time during his 20-minute dissertation did he talk about the victims,

I specifically want to ask him what effect he thinks Bill C-36 would have on the victims of crime, specifically the families of a deceased individual, by sparing them the emotional trauma of having to attend and sometimes testify at court proceedings under the faint-hope clause or hearings before the National Parole Board.

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12:15 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, I thank the hon. member for his question. I can assure him that all Bloc Québécois members share a real compassion and a real concern for victims. Over the years, I have personally met with victims of criminal acts. I am well aware of what this may mean for a family, for a spouse, and for children who become orphans. There is no doubt that we feel such compassion.

Of course, when we have to review a bill like this one, the question we must ask ourselves as parliamentarians is what will happen if we abolish a system that already functions by exception. I gave some numbers earlier. Every year, about 40 individuals may be eligible under this program. Is there not a danger in depriving ourselves of this tool? I certainly do not want to give the impression that, by questioning this initiative as a parliamentary group, we are showing a lack of sensitiveness towards victims.

I said that we wish to refer the legislation to a committee. I want to know who benefits from early parole. I am wondering—and I believe that is also the case for my colleagues—what would happen if this provision were to disappear. However, we definitely do not want to show a lack of sensitivity towards victims.

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12:15 p.m.

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I want to ask the member whether he has any information about how this type of legislation works in England, Belgium and other countries that have similar types of provisions in their laws.

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12:15 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, unfortunately, I do not have that kind of information. We met with departmental officials this week and they explained a little about the structure of the bill.

They provided us with statistics, but I was not able to do a comparative analysis of other countries. Once this goes to committee, it will no doubt be interesting to see some comparisons and learn how other countries, whose legal traditions are similar to those of Canada, have dealt with early parole.

As always, my colleague's suggestion is a good one. And it is always a pleasure to debate with him. He is very present in the debates here in this House and I always appreciate his questions.

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12:15 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Madam Speaker, I would like to congratulate my hon. colleague from Hochelaga on his work in committee on this issue, which is not an easy one.

It is not an easy issue, especially when it involves this kind of bill, and I would like to take the next few minutes to explain how I see things.

Since the Bloc Québécois has no objection to referring Bill C-36 to committee for examination, what sort of questions does my colleague think the committee should ask when studying Bill C-36, particularly before it goes any further?

As the previous hon. member said, the member for Hochelaga, who has not yet been called to the bar—unfortunately for us—will probably have some interesting things to say in committee.

What is his position? What does he plan to say? What questions would he like to see the committee members ask during their study of the bill?

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June 18th, 2009 / 12:20 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, I thank my colleague. I can even boast that he is not just a colleague, but a friend as well.

Obviously, we all know that he is a learned jurist. He wrote his bar exams in the 1970s—AD, that is. There is no chance I will ever write my bar exams, but I take a certain pride in having completed my law degree.

The sort of questions I would like the committee to debate concern the profile of people who were eligible for early parole. What is the rationale for abolishing section 745.6? I know that some police forces have called for it to be abolished.

In my introduction, which was cut short prematurely, I gave three reasons why we had passed section 745.6 in 1977. We wanted to give hope to people in the prison population and to make certain inmates with the appropriate profile eligible for early parole.

Are the reasons section 745.6 was added to the Criminal Code in 1977 and reviewed in the 1990s no longer relevant?

These are questions I would like the committee to debate, obviously with the friendly cooperation of my colleague from Abitibi—Témiscamingue.

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12:20 p.m.

NDP

Paul Dewar NDP Ottawa Centre, ON

Madam Speaker, I am looking at statistics about how this policy is applied in terms of early parole eligibility and for what crimes. The statistics go back a couple of decades. One thing that is important to look at is the regions.

I just want the member's take on how we should look at this policy when it comes to different regions, and if we should be looking at the causality, and if there are any determinants based on where people are coming from in society. When we allow people to leave the prison system under supervision, it is important that there are supports there.

Does the member think this policy that the government is proposing will actually help support people when they come out of prison? It is fine to say, “Do the time”, and so on, but what about what happens when people leave prison? What supports are there? Does he think there are problems and inequities when looking at the different regions of Canada?

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12:20 p.m.

Bloc

Réal Ménard Bloc Hochelaga, QC

Madam Speaker, I did not have access to regional statistics. The statistics I shared with the House are the ones we received from the justice department about people who had been granted early parole.

When I was a law student and was taking a course on sentencing—my professor was André Jodoin, who was assisted by Marie-Ève Sylvestre, here at the University of Ottawa—there was still a very good correlation between crime and indicators of disadvantaged areas. I also remember that there was unfortunately a strong correlation between the first nations and crime. That is why, with the Supreme Court decision in Her Majesty v. Proulx and subsequently with the Liberal government, specific mention of recognizing aboriginal justice in sentencing was even added. That said, my colleague is quite right to ask how these people will be reintegrated into society once their parole ends.

As parliamentarians, we need to strike a balance between the need to set an example in punishing people who commit murder and the need to give those people hope for rehabilitation. As Saint Augustine said, virtue is in the middle.

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12:25 p.m.

NDP

Jim Maloway NDP Elmwood—Transcona, MB

Madam Speaker, I am very pleased to speak to Bill C-36.

At the outset, I am very eager to see this legislation passed on to committee, where we will deal with it. We look forward to hearing from the presenters regarding elements of the bill. I believe our caucus will have some very positive amendments to benefit victims and support the rights of victims and to improve the situation overall.

Back in 1976, Parliament abolished capital punishment and replaced it with mandatory life sentences for high treason and first and second degree murder. At the same time, ineligibility periods for parole were established. For high treason and first degree murder, parole ineligibility periods were set at 25 years.

In addition, the Liberal government introduced the 15-year judicial review, known as the faint hope clause. Warren Allmand, who was the solicitor general of Canada at the time, and those of us who followed the issues at the time remember him, introduced the new provision with the following comment, “to keep them in for 25 years in my view is a waste of resources, a waste of a person's life”.

I would like to advise the House, Madam Speaker, that I will be splitting my time with the hon. member for Burnaby—New Westminster.

Section 745.6(1) allows for people who are convicted of murder or high treason and who have served 15 years of their sentences to have their parole ineligibility period reviewed and possibly shortened. The process is heavily weighted in favour of the offender, from a victim's point of view. The emphasis is on rehabilitation rather than the crime itself. The impact of the crime is extremely traumatic when it comes to the family of the victim.

We want to demonstrate that Criminal Code Section 745.6(1), the application for judicial review, is not an automatic process. This process is very involved. A lot of steps have to be taken for anybody applying for the faint hope option.

Section 745.6(1) states:

Subject to subsection (2), a person may apply, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole if the person (a) has been convicted of murder or high treason; (b) has been sentenced to imprisonment for life without eligibility for parole until more than fifteen years of their sentence has been served; and (c) has served at least fifteen years of their sentence.

The exception brought in by the previous Liberal government a few years ago excluded people who were multiple murderers. I think we can pretty much all agree that this was a good idea.

Subsection (2) states:

A person who has been convicted of more than one murder may not make an application under subsection (1), whether or not proceedings were commenced in respect of any of the murders before another murder was committed.

An application for a section 745 hearing is heard in the court. Section 745.6 requires that the chief justice of the province where the offence took place screen an application for judicial review. If the chief justice decides that the application may proceed, there will be a hearing. At the hearing, evidence is first presented by the applicant. Witnesses for the applicant usually include an applicant's family and friends, psychologists or psychiatrists, guards employed at the facility where the applicant is in prison and teachers if the applicant has taken any type of courses.

Representatives of the National Parole Board will also have been called to testify that even if the application is successful, the board does not always grant parole to these applications. The crown prosecutor may then present evidence regarding such things as the applicant's conduct and behaviour while incarcerated.

In terms of the role of the jury, because that is the next process, before the application is heard in court, section 745.6 requires that the chief justice screen an application for judicial review. If the chief justice decides that the application may proceed, the jury will hear the case. The jury must come to a decision after considering the following: the character of the offender after having served 15 years; the conduct and behaviour of the offender while in prison; the nature of the offence, based on the agreed upon facts in the case; the information provided by the victim; and specific matter the judge deems relevant to the application.

After hearing the application, the jury can make the following possible decisions: first, the offender can immediate apply for parole; or second, reduce the parole eligibility period by a specified amount of time; or third, the offender must serve the entire 25 years before parole eligibility. Even if the jury reduces the parole ineligibility period, the National Parole Board must still establish at a parole hearing whether an offender should receive parole. That is the third step in the process.

Not all applications to the board lead to an offender's release. In making its decision, the board must consider whether an offender's release will present an undue risk to society. In fact, the jury is asked a series of questions. One of the questions is, “Do you unanimously agree that the applicant's number of years in prison without eligibility for parole ought to be reduced, having regard to the character of the applicant, his conduct while serving his sentence and the nature of the murder for which he was convicted and the victim's impact statement”. It takes only one person out of the jury to say no and that is it.

This is an improvement over the previous legislation where, I believe, two-thirds of the jury had to agree. Now 100% of the jury has to agree. That improvement was made by amendments back in 1997.

In terms of the victim participation in section 745 hearings, we know, even in property crimes, a number of years ago, the victims were not given very good treatment. I can recall situations where people had break-ins to their homes, which is a very traumatic process for anybody who has ever gone through that, and they would get no help in from the police force and not a lot of sympathy in the process.

Particularly in my province of Manitoba over the course of the last 10 years of NDP government, and the Conservative government before that, the rights of victims were improved. The victim had a right to know the disposition of the case and was given updates and counselling, which is very important. I know of a situation where a person was involved in a robbery, whether the gun was real or not, the person to this day has had psychological problems in dealing with the situation. Nowadays there are provisions for people to have counselling when these events happen. This is a very positive for the victims.

Before 1997, it was left to the judge's discretion whether the jury would be able to consider information provided by the victims during the judicial review process. Section 745.6 now allows for the families of victims to provide information concerning the impact the crime had on them during the application hearing. Under section 745.6(3), the family of the victim may provide information, either orally or in writing, at the discretion of the victim or in any other manner that the judge considers appropriate.

Of course, while that is an important part of the process, people are also being victimized again when they have to appear at hearings when the applications for the faint hope clause are made—