Peter Milliken

[Prisons And Reformatories Act, September 24th, 1996]

Tell us your views on caning.

[Petitions, September 24th, 1996]

Madam Speaker, I have the honour to present a petition signed by numerous residents of my constituency of Kingston and the Islands calling on Parliament to enact Bill C-205 introduced by my distinguished and learned colleague, the hon. member for Scarborough West. This bill is an attempt to ensure that in Canadian law no criminal may profit from the commission of a crime by the publication of memoirs or other details of criminal activities.

[Criminal Code, September 23rd, 1996]

Hon. members can hoot and holler but this is the fact.

If the public is protected, in my view, we are all enriched by making change and saying let us get on with life. Our place as a society is to live with the people that are our neighbours, that are our fellow citizens. It is not to say that because you have done certain things we will shun you forever from our presence. At some point we have to recognize that those people may well be back. Indeed we should be saying that we will have you back. There are going to be terms because you are going to be on a life sentence, but we will have you back on certain terms and encourage your participation as law-abiding citizens again.

[Criminal Code, September 23rd, 1996]

Madam Speaker, the hon. member has asked three questions. He asked what my position would be if it was someone in my family who had been murdered. I have not had that experience. I can only hope that I would take the approach which I have described in my speech.

I would remind him of the appearance of a gentleman to give evidence before the Standing Committee on Justice and Legal Affairs during the pre-study of this bill last June. He had lost a loved one through a murder. He was opposed to this bill. He spent a great deal of time and committed a great deal of his resources to working with inmates in trying to achieve reconciliation and in trying to bring them back as working, capable and law-abiding members of our society.

He believed that was the right approach and he said so before the committee. He did not take the view that the person who had committed the offence against his loved one should spend the rest of his days locked up in prison. He felt it would be better for society if that person, assuming he was not a danger to the public, could be released and could participate in society as a law-abiding citizen.

Surely the lives of all of us would be enriched if that were the case, if that person could in fact be released and would not have to spend the rest of his or her time sitting in jail doing, practically speaking, nothing.

That was his approach. I agree with that approach. It is exactly the approach we should take.

I am sure the hon. member, when he contemplates not the notion of punishment but the notion of what is best for our society, would agree that if the person does not pose a risk to society, after a reasonable period in jail, should be considered for release. I know there has to be some sentence served, and 15 years is a long time, despite what hon. members suggest. If after 15 years in prison the person is no longer a risk, why would we not look at release as a possibility? It may be on terms. It always is because the person is, after all, under a life sentence. There will always be some reporting. There will always be some checking on whereabouts. There will always be some restrictions on movement. That follows with a life sentence. That is part and parcel of it.

Hon. members say that life only means 25 years. It does not because at the end of 25 years murderers still have to apply for parole and may not get it.

I could name some murderers, and I am sure hon. members opposite can too, who are most unlikely to get out under any circumstances until the end of their natural lives. There are some in prisons in my community who are there for the rest of their lives. I know they are not going to get out.

[Criminal Code, September 23rd, 1996]

I am not forgetting the victim. I am coming to the victim. As neighbours to both the victim and his or her family and to the perpetrator, the offender, we have a duty. We have a duty to the victim's family to bind the wounds and share the sorrow. We also have a duty to the offender to heal and try to reconcile that person with the society which he has foully wronged. In my view, our obligation to do that extends to offering some glimmer of hope to that person, some opportunity when good behaviour can result in something of value.

In any approach to this bill we can all win if we go for reconciliation and release because those things go together.

In conclusion I quote a speech that I think fell on deaf ears in Shakespeare's The Merchant of Venice . I will try it today because it sums up my argument very briefly:

The quality of mercy is not strain'd; It droppeth as the gentle rain from heaven Upon the place beneath: it is twice blest; It blesseth him that gives and him that takes: Tis mightiest in the mightiest: it becomes The throned monarch better than his crown; His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptered sway; It is enthroned in the hearts of kings, It is an attribute to God himself; And earthly power doth then show likest God's When mercy seasons justice.

I have spoke thus much to indicate my reasons for voting against this bill.

[Criminal Code, September 23rd, 1996]

The hon. member says they do not have any money. That is not always true, especially in shoplifting cases.

Why, for example, would they not look at other alternatives like requiring extensive community service instead of sending them to jail at public expense? This alternative, in my view, is not explored, possibly because the law does not allow it or the policy of the law does not recommend it and because the public expectation is that if the person committed a serious offence, bang, he has to go to jail. There has to be a jail term and punishment.

What do we have for murder? A jail sentence is required but the penalty for murder is a life sentence. I have no quarrel with that. It is entirely appropriate because there will be some murderers, and hon. members opposite talk about these particular persons all the time in their speeches, who in my view should never be released because they pose a danger to the public and should remain locked up.

On the other hand, there are a large number of persons who have committed murder who pose no danger, who are remorseful and who wish they had never done it and, in my view, ought to be released and become contributing members in our society again.

That is why I have difficulty with the whole concept of minimum sentences in the Criminal Code. I do not agree with minimum sentences. In my view there should be judicial discretion, particularly on the question of release. The National Parole Board is perfectly well equipped to make decisions on who is and who is not a danger to the public and release accordingly.

I have some additional figures to support my suggestion on the statistics relating to sentences for murder. I want to point out some of these figures to hon. members opposite because they may have forgotten them.

When we looked at the capital punishment issue in Parliament some years ago some figures were prepared concerning the period prior to the moratorium on capital punishment which started on January 3, 1968. From 1961 to 1968, 28 cases, in the case of murder, were sentenced to death and commuted to life. The average time served in those 28 cases was 12 years before parole. There were five life sentences without having been sentenced to death with the average time served being 6.2 years before conditional release was granted by the parole board.

From 1968 to 1974 there were 44 sentenced to death, with 13.5 years the average sentence served; 85 were sentenced to life with 7.7 years being the average sentence served.

If those figures were adequate punishment then, and I would suggest they were, why is it so inadequate now? Why do we have to lock them up for so much longer today at public expense, at a cost of $40,000, $50,000 or $60,000 a year depending on the level of security. However, of course Reform does not care about money. All it wants to do is cut pensions.

I want to turn to the cases that have occurred from 1976 to 1984, in other words the experience since this act came into force. Of course, people who were sentenced before the act came into force were unaffected by its provisions. Capital murder, 45 cases, number of years served, 15.46; non-capital murder, 268 cases, average number of years served, 10.43. These are averages. If these are adequate punishment why are we proposing by this bill to increase the number to 25 years with virtually no chance of getting out? I submit that it does not make sense.

I want to say that if 15 years was good enough for the last 20 years, we do not need to increase it to 25 years now.

I want to turn to Matthew's Gospel and read one line: "Always treat others as you would like them to treat you. That is the law and the prophets".

The hon. members may say that if they were guilty of murder they would like to go to prison for life and stay there until the end of their natural days. Perhaps at their age 25 years would expire before that happened anyway.

I want to say this. After a year or two they would wish they had not done that. They would wish they were out. I am sure that is the case. I have visited these prisons. I know what they are like. I know the people there all want to get out. They do not want to stay despite the suggestion of hon. members opposite.

In my view if we were to treat these others as we would have them treat us, I do not agree with locking them up without any opportunity to apply for parole no matter how good they have been, no matter how hard they try, no matter what efforts they make a reconciliation or whatever feelings of remorse they may have. I do not think those are grounds for keeping someone locked up forever.

I turn to hon. members and suggest again that they reread the story of the Good Samaritan. The question asked at the end of the story is who was neighbour to the man who fell among thieves. It was the person who had pity on him, who had compassion on him.

These people are our neighbours whether we like it or not. Some of us might not like it, but they are our neighbours.

[Criminal Code, September 23rd, 1996]

The hon. member says it works. The evidence is that it does not work. I would not want to confuse him with facts.

I am talking about alternative punishment that we know we talk about. We have heard a lot of talk about alternative punishment, but when it comes right down to it we have not done a great deal about it. We have not looked at alternative ways of dealing with people aside from putting them on probation. The public regards probation as a cop-out, something that has happened where instead of putting the person in jail we put them on probation.

Jail is the measurement of punishment in this country. The longer the sentence, the more serious the crime. If someone commits a serious crime and gets a short sentence the public tends to regard it as a miscarriage of justice. Why? Because there is no other punishment. If a person goes to jail, normally when they get out of jail they are scot free. Everything is over. There may be a period of probation and there may be something else added but usually if there is a jail term nothing else is added. The jail term is what the public looks at as the measure of punishment. I suggest

that we have to change that. I invite hon. members opposite to think of changing it and look at alternative measures.

Why, for example, when someone commits the crime of theft, do we not look at making them pay back the person they stole the property from at something like double the value of the property they stole?

[Criminal Code, September 23rd, 1996]

The hon. member thinks I am agreeing with him but I want to assure him I am not.

Whipping was abolished in this country some years ago and I have not gone to Singapore to see how caning is carried out there, as I know the hon. member for Calgary Northeast wanted to do before the member for Calgary Southeast blew the whistle and then got drummed out of the party.

She pointed out the extremism. She recognized extremism when she saw it and she blew the whistle. I always thought the Reform Party favoured whistle blowing legislation but when she blew the whistle she got the boot. I can only say that it leads me to suspect that its support for whistle blowing legislation is only skin deep and it would change quickly if it got any more seats, just as its sense of democracy seems a little odd.

In any event, I want to make it very clear that it is not whipping, caning or spanking that I am talking about.

[Criminal Code, September 23rd, 1996]

I just dealt with that argument. If only the member had been listening instead of babbling away over there he might not be yelling at me now. He can yell to his heart's content. I have some remarks to make and I suggest he sit and listen.

In my submission the rehabilitation of the offender is not enhanced by a sentence in excess of 15 years. I do not think we would find a criminologist in the country who would suggest that a longer sentence assists in rehabilitation.

Third, I turn to the deterrent effect of a lengthy sentence. A life sentence, the sentence for murder and which is conveniently forgotten a great deal in this debate, in my view is as great a deterrent as this law should have and does have. I submit it is a great deterrent for murder.

The point is most murders, from my limited knowledge in this area, are crimes of passion. I do not think the offender sits and thinks of the consequences of his or her acts when the murder is taking place.

I know hon. members may suggest that if the sentence were heavier fewer murders would take place, but that is certainly not the experience here or in any other country. A heavy sentence is entirely appropriate for murder, but a lengthy prison sentence in my view does not act as a deterrent to others. I think the fact that a murder has taken place is the deterrent. It is a crime that is abhorrent to most other people in our society, and justifiably so.

I turn finally then to the question of punishment. The question really is do we improve our law by increasing the length of time served in jail in terms of punishment of the offender? Have we achieved something that benefits our society as a whole?

I have a real objection to the view that we improve the punishment of a victim by lengthening the sentence. I say so because I am concerned that as a society we judge the seriousness of an offence by the length of a sentence. Yet virtually every offence in our Criminal Code and virtually every offence in any statute is punishable by a fine and/or imprisonment or imprisonment in lieu of payment of the fine.

When I was practising law and I went to court to see people getting charged with speeding, for example, the fine was $100 or five days. Someone could serve five days or pay but they had a choice. They could go to jail or pay. Why would we ever give anybody the option? Why is a fine not mandatory and if they do not pay their fine they lose their licence, or their car is taken away or something like that? Why do we send people to jail at public expense when there is no reason from the point of view of protection of the public to send them there?

Surely as a public policy matter the reason people should be imprisoned is to protect the public. It should be a matter of last resort. We send people to prison when someone is going to be a risk to others. When they are not, we try to devise another punishment that fits the crime but is not one that involves great public expense, which imprisonment involves, again conveniently forgotten as we discuss this bill, and which may involve substantial damage to the offender, perhaps unintentional or perhaps intentional but damage to the offender.

I am not suggesting when I talk about other punishments that I am agreeing with the hon. member for Calgary Northeast who wants to bring in whipping, caning and spanking.

[Criminal Code, September 23rd, 1996]

Mr. Speaker, I welcome the opportunity today to explain my position on this bill, and I have to say at the outset that I am opposed to the

bill and will vote against third reading, for reasons I intend to give in my speech.

In my opinion, the bill goes counter to the principles governing the treatment of offenders, and that is why I am against this bill.

At the report stage in my remarks I reviewed the principles of sentencing in relation to this bill and how this bill served those principles. I mentioned in the course of my remarks that the principal cause of my objection to this bill was the requirement for unanimity in the jury on the question of early release for an inmate. In my view, the other two aspects of the bill which I did not particularly like but was willing to go along with simply fell flat in the face of this requirement for unanimity in the place of the jury.

My very learned and capable colleague, the Parliamentary Secretary to the Minister of Justice, argued vehemently that the requirement of unanimity in a jury was something that was commonplace in our society and was part of the long tradition of the common law. I agree with him fully in that regard. However, what he neglected to mention and what I think is a fair comment on his defence is that juries have never been involved in sentencing. Sentencing has always been the purview of a judge. The jury is in a position to determine guilt or innocence but not to determine the sentence to be imposed on the offender.

Accordingly, while I could sympathize with the argument as far as it went, in my view it is wholly inappropriate for juries to be involved in the question of sentencing. That is a matter that falls, in my view, within the purview of a judge. It has done so for hundreds of years and ought to remain there.

I indicated also my displeasure at the entire process under section 745 which involved a jury in this whole matter since to me it smacked of being involved in sentencing. I did not get time to complete my remarks, so perhaps that was not clear from what I said.

I would like to go back to the four principles of sentencing that I talked about. I mentioned first, the protection of the public; second, the punishment of the offender; third, the rehabilitation of the offender; and fourth, the deterrence to others. I believe those are the four principles on which any sentencing bill ought to be judged.

Does the bill further the four principles? I would like to deal with each of the principles and indicate in my view how this bill fails to enhance any one of those principles to the benefit of the general public, except for possibly one, and in a way that I feel is inappropriate.

The effect of the bill will be to keep people in prison for longer. I think everyone in the House agrees. The Reform members in the House have been arguing strenuously that they get out too early and they will continue to get out too early under this bill. If implemented, in my view, very few will be able to apply successfully for early release under this bill. I suspect my colleagues opposite know it but for political reasons they wish to argue that the bill does not go far enough.

The bill does go far. I think it goes too far. The hon. member opposite knows perfectly well with a unanimous jury requirement chances of someone getting out are going to be down significantly from what they are today.

How does it enhance any one of these principles? Let me turn to the first one: protection of the public. Protection of the public is the paramount purpose of incarceration. I am firmly of the belief that if an offender is a danger to the public, that offender should be kept in prison to the full extent of the law, that is, to the full extent of the sentence that has been imposed on him or her. Under the current law, that is exactly the situation.

Hon. members complain that these people can apply for early release too soon. Application is one thing; granting is quite another. I invite members to look at the record, to examine it critically if they wish in respect of releases under this section of the Criminal Code. The protection of the public has been paramount in the minds of juries involved in this process and in the minds of the National Parole Board when an application gets to it following a successful jury application.

The record of the inmates who have been released on parole justifies confidence in the system that we have in that only two out of something like 50 have encountered difficulty with the law. Neither has committed a murder. One has gone missing and the other has been charged with some other offence and is back in prison I assume.

The track record of this section has been very good. That evidence, I submit, is being ignored in this debate. It should be enhanced. It should be drawn to the attention of the public who, once they have examined it, might have a different approach if there is any unanimity on the points in this bill.

Since most of the persons who are currently released under the existing system are not a danger to the public-and virtually every one of them has been established not to be a danger to the public-I suggest we have no basis for suggesting that the public protection is at risk. Therefore we do not need to stiffen the rules relating to early release on that ground.

Second, I will turn to rehabilitation of the offender. How is rehabilitation of the offender enhanced by keeping the inmate in prison for longer? I will talk about this in relation to punishment later, but most criminologists would agree that lengthy incarceration does not enhance rehabilitation of the offender. Rehabilitation can be accomplished in a relatively-