Mr. Speaker, it is an honour for me to stand and speak on behalf of my party and the constituents of Vancouver Kingsway to this important bill, Bill S-6, An Act to amend the Criminal Code and another Act, sub nomine, serious time for the most serious crime act.
Bill S-6 amends provisions in the Criminal Code regarding the right of persons convicted of murder or high treason to apply for early parole. This is done through the elimination of the so-called faint hope clause as it is commonly known by which those given a life sentence for murder or high treason could apply for parole after serving 15 years of their sentence.
A similar predecessor bill, Bill C-36, was introduced during the second session of this Parliament but did not become law before that session ended when the current government prorogued Parliament at the end of 2009.
It is important when we discuss profound issues, particularly ones that involve critical issues of crime and punishment and proper approaches to our carceral system, to have a very sound understanding of the structure and facts. I will spend a little time reviewing what the current law is.
Section 745.6 of the Criminal Code, known as the faint hope clause, provides offenders serving a sentence for high treason or murder with the possibility of applying for parole after having served 15 years when the sentence that they have been imprisoned for amounts to life without eligibility for parole for more than 15 years.
Offenders convicted of first degree murder receive life imprisonment as a minimum sentence with the earliest parole eligibility date set by law at 25 years. For offenders convicted of second degree murder, a mandatory sentence of life imprisonment is also imposed with the judge being able to set parole eligibility at some point between 10 and 25 years. Judges have that discretion in our Canadian courts.
Those serving a life sentence can be released from prison only if granted parole by the National Parole Board. Unlike most inmates who are serving a sentence of a fixed link, for instance two, five or ten years, lifers are not entitled to statutory release.
If granted parole, those convicted of a life sentence remain subject for the rest of their lives to the conditions of parole under the supervision of a Correctional Service Canada parole officer.
One thing that is important to point out is that in this country, those who are given a life sentence do have a life sentence. That sentence is and will be applied to them for the rest of their natural lives. The question is whether or not and when they will be permitted to serve that sentence in the community as opposed to being incarcerated.
Parole may always be revoked and offenders returned to prison at any time if they violate the conditions of parole or if they commit a new offence. Of course, not all people who have been given a life sentence are granted parole. Some offenders are never released on parole because the risk of their reoffending is too great and that is appropriately so.
During the years following its initial introduction in 1976 the faint hope provision underwent a number of amendments so that now the criteria for the possible release on parole of someone serving a life sentence include the following. The inmate must have served at least 15 years of his or her sentence. An inmate who has been convicted of more than one murder where at least one of the murders was committed after January 9, 1997, which was when certain amendments came into force, may not apply for a review of his or her parole ineligibility period. To seek a reduction in the number of years of imprisonment without eligibility for parole, the offender must apply to the chief justice of the province or territory in which his or her conviction took place.
The chief justice or superior court judge designated by the chief justice must first determine whether the applicant has shown that there is a reasonable prospect that the application for review will succeed. This assessment is based on the following criteria: the character of the applicant; the applicant's conduct while serving his or her sentence; the nature of the offence for which the offender was convicted; any information provided by a victim at the time of the imposition of the sentence or at the time of the hearing under this section; and any other matter that the judge considers relevant to the circumstance.
If the application for early parole is dismissed for lack of a reasonable prospect of success, the chief justice or judge may set a time for another application not earlier than two years after the dismissal, or he or she may declare that the inmate will never be entitled to make another application.
On the other hand, if the chief justice or judge determines that the application has a reasonable prospect of success, a judge will be assigned to hear the matter with a jury. In determining whether the period of parole ineligibility should be reduced, the jury should consider and does consider the five criteria I just mentioned. The jury determination to reduce the parole ineligibility period must also be unanimous.
The victims of the offender's crime may provide information either orally or in writing, or in any other manner that the judge considers appropriate.
If the application is dismissed, the jury may, by a two-thirds majority, either set a time again not earlier than two years after the determination when the inmate may make another application, or it may decide that the inmate will not be entitled to make any further applications. Furthermore, if the jury determines that the number of years of imprisonment without eligibility for parole ought to be reduced, then a two-thirds majority of that jury may substitute a lesser number of years of imprisonment without eligibility for parole than the number then applicable. The number of years without eligibility for parole that they may assign can range from 15 to 24 years.
After all that extensive process, once permission to apply for early parole has been granted, the inmate must apply to the National Parole Board to obtain parole. Whether and when the inmate is released is decided solely by the board based on a risk assessment, with the protection of the public as the foremost consideration. Board members must also be satisfied that the offender will follow specific conditions, which may include restrictions of movement, participation in treatment programs and prohibitions on associating with certain people, such as victims, children and convicted criminals and the like.
A faint hope clause review is not a forum for a retrial of the original offence, nor is it a parole hearing. A favourable decision by the judge and the jury simply advances the date upon which an offender will be eligible to apply for parole.
This section, of course, has been considered by the sharpest legal minds of our country, the Supreme Court of Canada. The Supreme Court of Canada has stated that the purpose of this review procedure is to re-examine a judicial decision in light of changes that have occurred in the applicant's situation since the time of sentencing that may justify lessening the parole ineligibility period.
Section 745.6 of the Criminal Code gives the jury broad discretionary power to consider any matter governing the offender's situation, and the Supreme Court has provided guidelines for the judicious exercise of that discretionary power. The jury, for instance, must consider only the applicant's case and must not try the cases of other inmates who may have committed offences after being released on parole. The court has also stated that it is not the jury's role to determine whether the existing system of parole is effective.
The faint hope clause was added to the Criminal Code in 1976 in the hope that it would provide an incentive for long-term offenders to rehabilitate themselves and therefore afford more protection to prison guards, as well as fundamentally achieve greater justice in our country. The provision is also said to represent Parliament's awareness of how long other countries imprison persons convicted of murder before allowing them to apply for parole. For example, Australia, Belgium, Denmark, England, New Zealand, Scotland and Switzerland keep persons convicted of murder in prison for an average of 15 years before they may be paroled.
The very first judicial review hearing under the faint hope clause was held in 1987. Here are some statistics that the House might find instructive.
As of April 12, 2009, 991 offenders had been deemed eligible to apply for a judicial review. Court decisions have been rendered in 173 cases, and 143 inmates have been declared eligible to apply for earlier parole. Of these, 130 were granted parole, representing just over 13% of those who had been deemed eligible to apply for a review of their parole dates.
I spoke about comparing Canada to other countries, and there are some other instructive facts that would be helpful for parliamentarians as we consider this difficult matter.
In 1999, an international comparison of the average time served in custody by an offender given a life sentence for first degree murder showed that the average time served in Canada is 28.4 years. Moreover, that is greater than in all countries surveyed, including the United States, with the exception of offenders in that country who serve life sentences without parole.
Here is the average time spent in custody by offenders convicted of first degree murder: New Zealand, 11 years; Scotland, 11.2 years; Sweden, 12 years; Belgium, 12.7 years; Australia, 14.8 years; United States for life sentence with parole, 18.5 years; and United States for life sentence without parole, 29 years. Once again, Canadian inmates convicted of first degree murder served 28.4 years.
I know the government is fond of saying where Canada sits on the world stage. It uses those facts when it thinks they are helpful. Let us then take a look at this fact: Canada keeps its first degree murderers in prison longer than every country on earth except for the United States.
Those who favour the retention of the faint hope clause have a number of arguments. They argue that judges and juries who consider whether to reduce the parole ineligibility period often take into consideration the circumstances that have led criminals down the wrong path, factors like poverty, fetal alcohol syndrome, low cognition, and other factors. They also recognize that mistakes can be made in court rooms from time to time resulting in innocent people being convicted.
Those who commit murder do deserve to be treated severely. Despite the government's constant attempt to try to simplify any argument other than its own or its attempt to make up straw person arguments that are easy to beat up, let it be said that there is no parliamentarian in this House who does not think that someone convicted of first degree murder ought to be treated severely. Of course they should. Anybody suggesting that any parliamentarian thinks otherwise is simply trying to mislead the Canadian public.
However while acknowledging that, people who favour retaining this section believe that offenders should not necessarily be utterly robbed of all hope, since one of the aims of punishment is rehabilitation. They believe, in other words, that justice must be tempered with mercy.