Gordon Kirkby

[Criminal Code, September 19th, 1996]

Mr. Speaker, I am very pleased to speak in support of the third reading of Bill C-45, an act to amend the Criminal Code and another act.

This bill would amend section 745 of the Criminal Code which provides for judicial review of the parole ineligibility period for life sentences for murder and high treason.

I note for the information of the hon. members that section 745 is now called section 745.6 as a result of the coming into force of Bill C-41, the sentencing bill, on September 3, 1996. Under section 745.6, as it currently reads, an offender is not eligible to apply for review of his or her parole ineligibility period until he or she has served at least 15 years of the sentence.

During such a review the decision on whether or not to reduce the ineligibility period is made by a jury of 12 ordinary citizens drawn from the jurisdiction where the crime was committed. At present this decision can be made by a majority of eight out of twelve members or two-thirds of the jury. This is one of the aspects of the provision that would be affected by Bill C-45. The decision is made by a jury after it hears evidence presented by the applicants and by the crown.

It must be noted that under section 745.6 the jury has no authority to release the offender from prison. All it may do is allow the applicant, in appropriate cases, to apply to the National Parole Board for a parole hearing prior to the expiration of the 25 years of ineligibility. A decision on whether or not to grant parole is made by the parole board after considering whether the offender's release would present an undue risk to society.

Where the parole board decides to release an offender who has had his or her parole ineligibility period reduced, the board imposes conditions on that release. These conditions and indeed the life sentence itself continue to apply for the remainder of the life of the individual or the life of the sentence and the offender may at any time be sent back to prison should he or she breach the conditions of that release.

This means that the offender continues to be subject, literally for the rest of the offender's life, to the risk of being reincarcerated at any time for a breach of the conditions of release.

I would also note that for the consideration of all hon. members that a system of review of the parole ineligibility period after 15 years is consistent with systems in place in many of the western democracies we like to compare ourselves with, in that, in many of these countries parole eligibility for murder is set at 15 years and in some cases less than 15 years. In the United States the average time served by murderers who are not executed is 18 years at the federal level, and 15 years at the state level.

As hon. members know, section 745.6 was enacted in 1976 in a public fashion when the death penalty was abolished in Canada. It was felt at the time that section 745.6 was necessary as a source of hope for the rehabilitation of convicted murders and as a source of protection for prison guards as well. We can all imagine situations where convicted murderers have a faint hope of being released on condition that their behaviour will be better. If they knew in advance they would be imprisoned for the rest of their lives, what incentive would there be not to put the safety and life of prison guards in jeopardy?

The enactment of section 745.6 also recognized, in some cases, keeping offenders in prison beyond 15 years does not serve the public interest. We all know there is a great deal of public concern about section 745.6. Many have asked for the repeal of this section out of concern for public safety. Others have cited the revictimization of the victim's family by the review hearing 15 years down the road at a time when the terrible wounds inflicted by the crime may have started to heal. Others focus on the appropriate minimum period of incarceration for the worst offence in the Criminal Code.

I share the concerns of Canadians about the need to ensure public safety. I am moved by the pain and experience of the families of the victims of these often brutal, senseless crimes. The prospect of victims' families being revictimized through a public review conducted before a jury in cases where the offender has no reasonable prospect of success is one of the considerations that has prompted the government to act by bringing this bill to the House. However, I do not support the repeal of section 745.6. I believe the reasons that justified its addition to the Criminal Code in 1976 are still valid today. Bill C-45 amends section 745.6 in order to ensure the provision is available only in appropriate cases.

Before moving on to the three main elements of the bill where changes are being sought I want to speak briefly about a number of principles on which our criminal law is based. These principles which have evolved over hundreds of years of jurisprudence through the British courts, the Commonwealth and the courts of Canada. We must keep these principles in mind when we are considering some of the arguments made, particularly those arguments that this section should be abolished.

If we cast our minds to what we have heard about the criminal justice system a number of these sacrosanct principles come to mind. Probably the most obvious is during a criminal trial that in order to have a finding of guilt we must prove that guilt beyond a reasonable doubt. I suppose in some instances the person that committed the offence is found not guilty because of that very high standard. We could have a standard where perhaps the person is guilty, so let us convict him. Or, they are likely guilty, or on the balance of probability they are guilty and maybe we should convict them. The law has evolved in this civilized society, such that we want to keep the number of innocent people in prison to a minimum. That is why we have a very high standard of proving guilt beyond a reasonable doubt. If we question that principle, let us remember why it was enacted in the first place.

Another principle that has evolved over the years is the rule against the retrospective application of the criminal law. What does that rule say? It says that someone cannot change the criminal law in a substantive way to affect the life of an individual after the fact. We cannot make a new law to apply to past actions.

This law probably evolved many hundreds of years ago through the jurisprudence. It was a way for the judiciary to protect citizens many centuries ago from the capricious actions of a state less concerned about the rights of an accused. For example, a person does an act that is not illegal. Subsequently, whatever government it is changes the law and makes that act illegal. Surely there is something wrong with charging the person after the fact. When the person did the act, it was not illegal. However some government enacted a law making that act illegal and are going to charge the person. That does not make any sense.

What if a person commits a criminal act and the sentence is a maximum of any number of years in prison. Subsequent to the person committing that offence, the government changes the law and puts in place a penalty that is much harsher. What about the death penalty? Surely it would be unfair to impose a more significant penalty after the fact. This principle is no doubt protected in the charter. Do not blame the charter as often Reformers are prone to do. This rule has evolved over hundreds of years to protect citizens from the capricious actions of government.

Governments many years ago may not have held the individual in such regard. Let us never forget to look back in history to see how these rules evolved, to see what abuses they were designed to alleviate, before we disregard them.

We believe that individuals must be notionally aware of what is legal and what the consequences are before the act is committed. By promulgation of these prohibitions, and the statutes of the land are in the code, action is to be taken against them. Society must be aware of these restrictions and activities before they can contravene these prohibitions. This makes common sense.

What is the implication of this rule against retrospectivity in relation to the repeal of section 745 when it means that even if this section were repealed, the people already in the system, that is, those already convicted of murder and serving time in prison for up to 25 years? In the future if they were recently convicted and sentenced, they could still apply. The repeal will not bring to an end the ability of people who are already sentenced to make application under section 745.

Reformers tell people to go out and campaign for the repeal of section 745 and the person who committed this horrible crime against their loved one will not get a section 745 application. That happens. That is a fact. That is what the Reform Party is telling these victims of crime to do. I want to read the words. We have the words of the hon. member for Macleod who indicated quite clearly in a speech on Monday. that he advocated that an individual go out and campaign for the repeal of section 745, reliving past horrors, spending their own money, spending their own time in order that the individual who committed this terrible crime would be prevented from making a section 745 application.

Surely the Reformers cannot have missed one of the fundamental principles upon which our criminal law is based. Surely even if the members happened to miss it perhaps their researchers might have caught this very fundamental principle. They could have told the victims of these horrible crimes exactly what the fact of the matter was instead of urging them to campaign against this legislation, suggesting to them that the individual that committed this horrible crime against their family would be prevented from applying. That is an absolute exploitation of the pain of the victims and their families. It is an exploitation for political purposes of people who have been hurt in the most fundamental way.

Reformers are always interested in talking about the effects on the victims. I ask the question: What about the effects on the victims of this kind of nonsense? The Reform Party would do well to advise people who come to them to counsel as to exactly what is entailed by repeal of section 745 of the act before sending them out to conduct their campaign for them.

It is very disturbing that these people who have committed these horrible crimes and have been convicted, and those who seek nothing more than to gain publicity because they know they will never ever ever get out of prison, utilize people from the Reform Party to get their publicity for them.

I remember a day at the justice committee when the hon. member for Calgary Northeast sat there with eyes aglow reading a letter from a notorious criminal. The hon. member was hoping beyond hope that maybe he would get some attention by bringing forward this letter. The Reform Party needs to think about the witting assistance of individuals who have no hope of getting out; all they are seeking is publicity. They need to think about whether they should in fact be giving them publicity. Serious thought should be given to this tactic and changes in behaviour should result.

Our legislation deals realistically with section 745 and the changes that are required. We acknowledge that even a repeal would not change the system. The changes we are proposing, while one of the changes cannot be implemented after the fact because it is a substantive change, the other changes to the act are procedural and thereby we can make them.

I will now go over the changes that have been brought in by this government. The three elements of the bill that are changing accomplish the goal of ensuring that only in appropriate cases will individuals have the benefit of success of this application.

The first change eliminates judicial review for all multiple murders committed in the future, whether or not the murders are committed at the same time. This would include serial murderers. The proposed amendment is consistent with a notion found in the Criminal Code that repetition of the offence should be treated more harshly by the law than a single offence. Therefore anybody who commits multiple murders will not be allowed the benefit of section 745.

The second proposed amendment is procedural in nature. It creates a screening mechanism whereby a judge of a superior court would conduct a paper review of the application to determine if there is a reasonable chance of success before the application is allowed to proceed to a full hearing. This would help to ensure that only deserving cases get before a section 745 jury, that only in appropriate cases would there be a full blown hearing. This would ensure for frivolous cases with no likelihood of success that the victims would not have to relive the horrors of the situation.

The third amendment would provide that a parole ineligibility period may only be reduced by a unanimous vote of the jury. As a result of this provision, an application for a reduction in a parole ineligibility period would be denied when a jury decides it should be denied or when a jury simply cannot reach a unanimous conclusion to reduce the period. Also in denying an application, a jury can decide if and when the offender may make another application, but in any event, not before two years.

In June, before the summer recess, the standing committee heard from a number of witnesses with strong views on section 745.6. Some of them asked for a complete repeal of the section. I cannot support this because I believe that doing away with section 745.6 is not good policy and not the right thing to do in addition to the other problems I have mentioned.

Other witnesses have argued forcefully for maintaining the section in its present form. In light of the committee hearings which accurately reflected the deep division in opinion evident during the consultations that preceded the introduction of this bill, I believe Bill C-45 strikes the right balance between those who want to maintain the section and those who want it repealed.

When the Minister of Justice introduced Bill C-45 on June 11, it was my hope this House would be able to move quickly to pass these amendments before the House rose for the summer. Regrettably this was not possible. I ask hon. members of this House to support the bill at this time and give it quick passage so we can bring these amendments into force as soon as possible.

[Criminal Code, September 16th, 1996]

Mr. Speaker, I rise today to speak against the motions which have been introduced. These motions are for the purposes of amending Bill C-45, an act to amend the Criminal Code, judicial review of parole ineligibility and another act.

There are six motions on the Order Paper. Three have been introduced by the hon. member for Bellechasse and three have been introduced by the hon. member for Kingston and the Islands.

However, as I am sure the hon. members will have observed, all six motions come down to the same thing. All of them seek to change the proposed amendment in Bill C-45 that would require that a section 745 jury be unanimous in order to grant an offender a reduction in his or her parole ineligibility period.

As anyone who has followed the debates on this issue will know, at present section 745 allows a review jury to reduce an offender's parole ineligibility period with a two-thirds vote, or 8 members out of 12 on the jury. In Bill C-45 the government proposes to change that standard from two-thirds of the jury to unanimity so that all members of the review jury reviewing section 745 applications must agree in order to reduce the ineligibility period for parole.

The motions before us today seek to do is to replace the government's proposed standard of 12 votes out of 12 in order to reduce the parole ineligibility period, with a lower standard of 10 votes out of 12, in the case of the motions introduced by the hon. member for Kingston and the Islands, and 9 votes out of 12 in the case of motions introduced by the hon. member for Bellechasse. These motions then would provide a standard that is somewhat higher than that under the current law but is still significantly lower than the standard proposed by Bill C-45.

When the government introduced Bill C-45, its aim was among other things to strengthen the role of the community jury in section 745 proceedings by strengthening the statement made by the jury in making their decision. In those cases where the jury decides to reduce the offender's parole ineligibility period, under the government's amendments it could only be done by unanimous decision,

the strongest possible statement by a jury of ordinary Canadians drawn from the community.

In addition, the government's intention was to return to the time honoured standard in our criminal justice system that a jury's verdict must be unanimous. The standard for conviction or acquittal in the Canadian justice system is and always has been that the jury must be unanimous in their decision. Why, I would ask, would the standard be anything less for a section 745 application?

Perhaps it would help to recall that section 745 is an exceptional mechanism under which a person convicted of the most serious offence in the Criminal Code may obtain a grant of clemency with respect to their parole ineligibility period. Why should an offender not have to convince all members of the jury that he or she deserves to have his or her parole ineligibility period reduced in order to obtain such a grant of clemency? A unanimous decision by the review jury is a clear statement that the offender deserves clemency.

I have already noted that there is a difference between the hon. member's motions with respect to this bill in terms of the number at which they would place the standard. One set of motions would establish the standard at 9 while the other set of motions would establish the standard at 10. The current standard is at 8.

More than anything else it seems to me that this difference points to the complete arbitrariness involved in establishing a standard short of unanimity. Should it be the current regulations which is 8 votes, or should it be set at 9, 10 or even 11? What possible rationale is there for establishing any of these standards?

In the face of this conundrum the government has proposed in Bill C-45 that we utilize the only sensible standard, the time honoured standard of our criminal justice system: the standard that requires that the verdict of the jury be unanimous.

For all of these reasons the government cannot accept these changes to Bill C-45. Therefore, I would ask that hon. members defeat these motions.

During my comments made with respect to these motions which are restricted to reducing the proposed standard for the jury at unanimity in reaching a decision to 9 or even 10 votes, I have restricted my comments very specifically to those issues. I will be speaking again in general terms with respect to Bill C-45 and particularly section 745 of the Criminal Code at third reading.

In wrapping up, we cannot accept these changes as proposed in these motions. I ask hon. members to defeat these motions.

[Federal Court Act, June 18th, 1996]

Mr. Chairman, I will make my point with respect to the amendment very quickly. The government will not be supporting the amendment. As I indicated before, the amendment is, in the government's view, unconstitutional.

[Federal Court Act, June 18th, 1996]

Mr. Chairman, I would ask the indulgence of the Chair to consult.

[Federal Court Act, June 18th, 1996]

Mr. Chairman, I would suggest that the proposed amendment is out of order.

Section 98 of the Constitution requires that judges of the courts of Quebec be selected from the bar of the province. Notaries are not members of the bar of the province. Therefore it would not be possible to put forward such an amendment.

[Federal Court Act, June 18th, 1996]

Mr. Speaker, I address the House today on Bill C-48, an act to amend the Federal Court Act, the Judges Act and the Tax Court of Canada Act.

Under the Judges Act, judges of provincial superior courts and appellate courts may be appointed from applicants who have at least 10 years at the bar or as provincial court judges. However under the Federal Court Act and the Tax Court of Canada Act eligibility for appointment to each of these two courts is limited to persons who have 10 years at the bar or who are already federally appointed judges.

Since the time served as a provincially appointed judge does not count toward eligibility for appointment to the federal court or the tax court as it does for appointments to the provincial, superior and appellate courts, this historic anomaly effectively disqualifies from appointment to these two courts any provincial court judge notwithstanding his or her extremely high qualifications who had practised law for less than 10 years prior to his or her appointment to the provincial court.

There is no legal or policy reason for so limiting the appointments to the federal court or the tax court in this way. Furthermore, in all three acts time spent as a provincially or federally appointed judicial officer such as a master or superior court registrar during which the applicant's membership in the bar may have been in abeyance also does not count toward the 10-year eligibility requirement for the appointment to the provincial, superior and appellate courts, the federal court and the tax court.

Bill C-48 would amend all three acts to make the appointment eligibility requirements consistent. Once these amendments are in effect, time spent either as a lawyer, a provincially or federally appointed judicial officer or a provincially or federally appointed judge would count toward the 10 years at the bar requirement for appointment to any federally appointed court, with the exception of the Supreme Court of Canada.

For the supreme court it would continue to be the case that only lawyers of 10 years standing or provincial superior court judges would be eligible for appointment.

The amendments to the Federal Court Act and the Tax Court of Canada Act are being given retrospective effect so as to place the validity of the appointment of a judge appointed in 1990 and another appointed in 1995 beyond any possible doubt regardless of how one interprets the provincial laws governing the status of those judges continuing membership in the bar while they were provincial judges.

That is all Bill C-48 does. It is a very simple bill with a very limited technical objective. I urge all hon. members to pursue quick passage.

I ask at this time for unanimous consent for the House to take all necessary steps to pass and adopt the bill expeditiously today.

[Judges Act, June 18th, 1996]

Mr. Chairman, with respect to the amendment being proposed by the hon. member, clause 5 contains within it sufficient authorization for the judge to receive payment for the reasonable expenses which are the subject of her motion.

In my view the amendment is redundant. In addition, however, it was my understanding that all parties had agreed that we would take all necessary steps to pass the legislation today without amendment. In any event, the provision the hon. member seeks to bring forward is covered by the legislation.

[Judges Act, June 18th, 1996]

Mr. Chairman, a number of provisions will add cost. First, in clause 1 three judges are being added to the judges pool for the courts of appeal for the provinces, two to fill B.C. court of appeal vacancies. The amount of that expense will be $200,000 per year per judge effective when the judges are appointed.

With respect to the vacancy to be filled on the Ontario court of appeal there will be no immediate cost there until after the return of Madam Justice Arbour.

There are a number of other provisions. The chief justices of the Yukon and the Northwest Territories courts of appeal now will be entitled to representational allowances. These two individuals will receive $5,000 a year each. In addition, the chief justices of the courts of appeal and the court martial appeal court are to receive a $5,000 allowance.

An error was discovered in the legislation which at one time did not allow judges in certain instances to get their expenses. This has been cleaned up, but that will not be an additional cost to the government.

I think that is the bulk of the expense with respect to this legislation.

[Judges Act, June 18th, 1996]

Mr. Speaker, I rise on a point of order. I wonder if we could have unanimous consent to take all steps necessary to have this bill passed in all stages today.

[Judges Act, June 18th, 1996]

Mr. Speaker, I appreciate the opportunity to address the House on Bill C-42, an act to amend the Judges Act and to make consequential amendments to another act.

Hon. members are aware that crimes of indescribable brutality have been perpetrated on tens of thousands of people in the former Yugoslavia and Rwanda. A Canadian judge, Madam Justice Louise Arbour of the Ontario Court of Appeal has been requested by the Secretary-General of the United Nations to serve as chief prosecutor of the UN International Commission on War Crimes for the former Yugoslavia and Rwanda.

The appointment of Madam Justice Arbour to this very important and prestigious international position is without doubt a great honour to Canada. A necessary condition imposed by the United Nations for Madam Justice Arbour to take up this appointment is that her salary and expenses are to be paid by the United Nations during the period in which she will be serving as the chief prosecutor. This requirement relates to the UN's own requirements for the independence of its chief prosecutor and it would require Madam Justice Arbour to take leave without pay from the Ontario Court of Appeal and to receive a salary from the United Nations.

There is no provision in the Judges Act as it is currently constituted for a federally appointed judge to be granted leave of absence without pay to work for an international organization such as the United Nations. Nor does the act permit the salary and expenses of a judge during the period of leave to be paid by any organization or entity other than the Government of Canada. The amendments contained in Bill C-42, which have the full support of the Canadian Judicial Council, would permit this type of arrangement to be entered into by Madam Justice Arbour, and should another appropriate occasion arise, by other Canadian judges.

This bill makes other minor amendments. The bill transfers from cabinet to chief justices the authority to approve judicial leaves of absence of up to six months. This recommendation was made by the 1992 Triennial Commission on Judges' Salaries and Benefits and is endorsed by the Canadian Judicial Council. It allows a judge to request maternity or parental leave without having to seek cabinet approval.

Bill C-42 also recognizes the importance of the Court Martial Appeal Court of Canada by including the chief justice of that court on the membership of the Canadian Judicial Council. The requirements of the chief justice of the Court Martial Appeal Court arising out of the representational duties and functions that are inherent to that officer are also reflected in the bill which authorizes the payment of a modest representational allowance of up to $5,000 per year to the head of that court. The chief justices of the Courts of Appeal of the Yukon and Northwest Territories are being granted similar representational allowances.

Bill C-42 would also permit the appointment of up to three judges Canada wide to the provincial courts of appeal which have been experiencing increasing workloads and backlogs over the past number of years.

Finally, the bill corrects some technical errors and clarifies some ambiguous language in the Judges Act.

Bill C-42 is a modest legislative measure but at the same time a significant one because it will permit a Canadian judge to respond to a request by the Secretary-General of the United Nations to take on an international assignment of the utmost importance to the world at large.

I would respectfully urge all hon. members to approve the quick passage of amendments to the Judges Act.