It's always a pleasure to appear before you and this committee. I know you have a particular interest in issues of public safety, having served as the critic for Public Safety for a number of years. I know you did an admirable job in that respect, and I'm sure you are putting that knowledge to good use, as you are now entrusted with this very important position as chair of this committee.
I will say that after I and 30 separate individuals have appeared at eight committee hearings answering questions on G-8/G-20 costs, the chance to finally discuss government legislation is indeed a welcome opportunity. I'm grateful to contribute to your review of Bill , the Eliminating Pardons for Serious Crimes Act.
I have with me a number of senior officials, whom you have already introduced. I will defer to their knowledge in specific areas when it's appropriate in order for the committee to get all the facts necessary for consideration.
With your permission, I have a short opening statement, after which I would be happy to answer any questions the committee may have.
Before I continue, I want to acknowledge the spirit of cooperation that all honourable members have demonstrated in strengthening Canada's pardon system. Together we've made some important progress in addressing serious shortcomings in the legislation, things that were a very real concern for Canadians, and things that the House was able to pass prior to rising for the summer break of Parliament.
With the amendments to the Criminal Records Act, passed in June, the Parole Board of Canada now has the authority to exercise discretion and to deny a pardon application in cases where the evidence clearly demonstrates that granting one would bring the administration of justice into disrepute. The board must weigh this decision, taking into account factors such as the nature, gravity, and duration of the offence, as well as the circumstances surrounding the commission of the offence, and of course the applicant's criminal history. You will recall that under the former legislation there was little difference in the criteria to differentiate between a pardon for an indictable offence and summary conviction offences.
Offenders must now show that there is a measurable benefit to granting them a pardon. The onus is on the applicant to demonstrate to the Parole Board of Canada that a pardon will contribute to their rehabilitation as a law-abiding citizen. Those amendments also increase the length of time before someone convicted of a serious crime is eligible to apply for a pardon. Anyone convicted, by indictment, of a sexual offence against a child or of a serious personal injury offence is required to wait 10 years, instead of the previous five, before they can apply for a pardon.
We have worked in collaboration with the other parties to make solid initial progress. In passing these amendments, we've also shown our respect for the wishes of victims and many other law-abiding Canadians. We believe more can be done, and I trust we can continue in the spirit of cooperation to make further improvements to the legislation.
Mr. Chair, to understand why Bill is important, we need only to go back to April of this year, when Canadians learned that sex offenders can have their records set aside if they meet the requirements and they have adopted a law-abiding life. Canadians reacted. Many were concerned.
A good part of Canadians' reactions was connected to the word “pardon”. One of the dictionary definitions of “pardon” is forgiveness. The other meaning, which is “remission of illegal consequences of crime or conviction”, is closer to what the act intended. The perception of forgiveness has prevailed, and in very serious cases in particular it has been very difficult for victims to contemplate forgiveness when the harm or injury is still being suffered by that victim.
This is why this bill would change the terminology. The Parole Board of Canada would no longer grant offenders a pardon, but rather a suspension of record. This change will provide a more accurate and understandable description of what in fact is being granted and an opportunity to start over with what amounts to a clean slate.
It affirms the fact that a person's criminal record will be kept separate and apart, but it makes clear that the record has not been erased. That is one important amendment contained in this bill.
A second amendment is directed at protecting the most vulnerable of our citizens, our children. While Bill made some improvement in this area, we believe more should be done.
As you will recall, the amendments passed in June provided that those convicted of a sexual offence related to a minor and prosecuted by way of indictment must now wait 10 years to apply for a pardon. In the case of those who commit a sexual offence against a minor and are prosecuted by summary conviction, the waiting period is now five years. The amendment proposed in Bill would go further and make anyone convicted of an offence involving sexual activity relating to a minor ineligible for a suspension of record.
I emphasize that this provision would not be all encompassing. If the offender can demonstrate that he or she was close in age to the victim, which is similar to some of the other provisions we have in the Criminal Code, and that the offence did not involve a position of trust or authority or a threat of violence or intimidation, a suspension of record could be granted in that circumstance.
This bill would also deny a suspension of record to anyone convicted of more than three offences prosecuted by indictment. We believe this is a reasonable cut-off point.
A final amendment contained in this bill would require the Parole Board of Canada to submit an annual report on its activities with regard to suspensions of record to the Minister of Public Safety. This report would be tabled in Parliament and therefore available to all Canadians. The report would let Canadians know how many applications the board received for suspensions of record for both summary convictions and indictable offences, as well as the number of suspensions ordered and refused for both categories of offences. The report would also list suspensions of record ordered by offence and by the applicant's province of residence.
The goal of this amendment is quite simple, and I trust honourable members will agree that greater transparency is always a good idea. We believe this is information that Canadians should be able to access. It's also information that parliamentarians need in order to determine whether the system is working as it should. This report would not contain any personal information.
Mr. Chair, in addition, the government will be bringing forward various technical amendments to this legislation in order to reconcile Bill and Bill . The reconciliation has to occur, given the fact that those two bills were split off, and it would appear that presently, unless that reconciliation takes place, there would be some inconsistencies if the House simply adopted Bill C-23B.
In conclusion, Mr. Chair, we are all aware that certain provisions of the Criminal Records Act have been the subject of considerable debate in recent months. We have all read the editorials and the letters to the editor and we have listened to the calls on the talk shows. I know how many e-mails and calls I have received on the subject.
There is no question that the subject of pardons touches a nerve with Canadians. The amendments we are proposing in this bill are a reasoned response to the very reasonable concerns of Canadians. With the simple replacement of one word, these amendments would take a great deal of the emotion out of this debate and more accurately identify what in fact is being accomplished. Together with the previous amendments to the Criminal Records Act, they will help further ensure that suspensions of record are granted only to those who have earned them. They will provide Canadians with more information about the workings of an important part of our justice system.
I thank you, Mr. Chair. I thank committee members in advance, and I look forward to our discussions.
And thank you, Minister, for your appearance today.
Minister, I hope you can appreciate the need to proceed cautiously on this. I was glad that we divided the bill into two sections. We were able to find a compromise on one half, and now we are dealing with the second half. You'll recall that we originally thought this was dealt with when Minister Day made a number of changes back in 2006. There was a sensational case, we were told it was fixed, and now we're back here.
My concern, Minister, is not with sexual offences against children. I think you get 100% agreement on that. It's not with changing the term “pardon” to “record suspension”. I think that's a good move and one that's supportable. My concern is that there might be a number of individuals caught up in this bill who either weren't intended to be caught up in it or for whom it could be very destructive to be caught in it. I'll give you some examples and maybe you could respond.
Suppose, for example, you have a single mother working hard to make ends meet. She makes a desperate decision, a dumb decision, to write a fraudulent cheque. That could be a hybrid offence, which could be indictable. Suddenly, a 20- or 21-year-old single mother, who makes a bad decision in trying to put food on her table, one she shouldn't have made, is in a position where now she is ineligible to get her record cleared until her mid-30s, potentially. That would mean that she's going to be—
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She may be ineligible to get her record cleared until her mid-30s. You have 10 years, but you have to wait until you serve your time and you've gone through the whole process before that 10-year clock begins ticking. And we know how nearly impossible it is to get a job with a current criminal record.
Another situation would be a young person, maybe 18, 19 years old, who makes a dumb decision and takes marijuana to a party. Because it's a hybrid offence, and part of it may be an indictable offence, this person is now going to be caught up in the same situation.
My concern, Minister, is that with people like that, in those kinds of situations, who I'm sure we would both agree we want to see do better, we would shut the door to getting them back into society. We'd shut the door to their being able to get jobs and make meaningful contributions to our society.
I can go through some other examples, but I'm wondering how we ensure that this bill doesn't catch folks like that.
I note your examples. I think there are some assumptions in them that the committee needs to consider.
You're a lawyer with undoubtedly a fair bit of experience in the criminal courts. I was a prosecutor for a time. In all the years I've prosecuted, I can honestly say that I would never have proceeded on a hybrid offence by way of an indictable offence if there was the option of going summary on a first offence, unless there were horribly aggravating circumstances. So I think the scenario you're putting forward is very remote and probably not possible. In my experience, I can't think of a case where a prosecutor would have proceeded by way of an indictment in that, shall I say, Jean Valjean kind of situation.
I think the balance we have struck here is a fair one; we have given a certain amount of discretion. The 10-year period would not apply in situations where the crown proceeds by way of a summary conviction offence, even though the person, for example, would have had to give his fingerprints. As I understand it, in the hybrid situation, you still have to provide fingerprints.
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I think those are, quite frankly, good questions. I have stated publicly already that if I were assured that multiple offenders could not take advantage of the pardon system, I would consider another proposal. But we have to draw the line somewhere. While the generosity and tolerance of Canadians is a good thing, their concerns about crime have to be respected.
I was very surprised, in my rather extensive discussions with Canadians about this issue, that they felt people should not get more than one chance, never mind four chances, which this essentially gives. So the public attitude is quite hardened in respect of this situation.
If this committee can find something that will address the concern of multiple offenders taking advantage of the system, yet address the situation you've raised, it would be worthwhile for the committee to consider. In the meantime, I haven't found anything better than what has been proposed.
On the sex offences, as I noted in my comments, the individual streaking would not attract that kind of automatic bar, even if it somehow came within schedule 1. I'm not exactly sure about all of the offences—they're all listed here in front of me. But in my opinion, if the offender could demonstrate that there was no victim--unlike in a personal assault on a child--and the offence didn't involve a position of trust or authority, they would still be eligible for a pardon.
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Thank you, Mr. Minister.
Mr. Minister, I'll pick up right there, because with the greatest of respect, I believe you're incorrect about this. And it could be a question of sloppy drafting, but Bill C-23B says, in proposed subsection 4(2):
(2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of
(a) an offence referred to in Schedule 1;
Now the exception you refer to, subsection 4(3), says “A person who has been convicted of an offence referred to in item 3 of Schedule 1”—it's not schedule 1, but item 3 of schedule 1—“may apply for a record suspension if the Board is satisfied that” the person was not in a position of trust, the person didn't use violence, and less than five years....
I'm looking at the schedules, and there are three pieces to schedule 1. There's 1, “Offences”; 2, “Offences”; and 3, “Offences”. Item 3 of schedule 1 is a very short version. The offences that are being referred to here in section 1, voyeurism, etc., are not covered by the exception to which you refer. So I would ask you to perhaps revisit that. It could be what you intend, but the way it's drafted now, it is not schedule 1; it is item 3 of schedule 1 that allows that exception.
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Okay. I can read, and I'm a lawyer too, and it says item 3 of schedule 1. Item 3 means something. You act as if those words are not there, with respect.
Mr. Minister, last June the New Democrats worked with the government to pass what I think we all agree are important changes to strengthen the pardon system in Canada. The NDP pushed to fast-track the proposal to give the National Parole Board discretion to deny pardons in any case of an indictable offence or an offence by summary conviction if it involved a sexual offence against a child, if this would bring the administration of justice into disrepute.
The NDP also pushed...in fact it was our party that insisted the list include manslaughter, which is the provision that ensured Karla Homolka would not be eligible to apply for a pardon this summer. Thanks to all parties' work on this issue, under the Criminal Records Act it is in effect today.
I think it can be said that the parole board now has the discretion, which you properly identified it was lacking before, to deny pardons for any kind of serious offence, as all indictable offences or sexual offences involving children are.
I'm wondering, Mr. Minister, isn't it better for the National Parole Board to have that discretion to grant or deny pardons in individual cases where it's appropriate, or not to do so, rather than have arbitrary categories like more than three indictable offences, or a certain offence, and you're precluded forever from having a pardon? There are varying factors. Not all offenders are exactly the same.
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I agree that not all offenders are exactly the same.
I remember that discussion about manslaughter. I believe what happened in that case was that the Bloc said they didn't want to see anyone denied a pardon if the offence was a sentence of less than two years. I think the original intent was always to have manslaughter there. I recognize that we did have a very good discussion among all parties, and I'm very grateful to all parties for moving that ahead.
I disagree that a judicial tribunal, whether it's a court or an administrative tribunal exercising quasi-judicial functions, should have the discretion to allow the granting of a sentence or an order where it's clearly contrary to the public interest.
Our government is very clear that there are certain mandatory minimum prison sentences where we say that it would be inappropriate, from a public policy point of view, to grant a house arrest, for example. From a public policy point of view, in the situation with first- and second-degree murder, there should be mandatory periods of ineligibility for parole--mandatory.
Similarly, our government has come to the conclusion that the cases in which we are saying there are no valid public policy reasons to grant a pardon...in this particular case, I think it is justified. At least the rights of the victims outweigh the interests of the convicted criminal, who has deliberately broken the law. I have indicated that I'm very firm on the issue of the sexual offences.
There are certain exemptions. You've indicated you might have some concern about the drafting. I'm willing to have my officials look at it.
With respect to some of the other ones, I'm not as flexible.
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Well, I have to say that Canadians and victims' advocates have been overwhelming in their support for our pardons legislation. In fact, if we look at the bill as it was originally presented, some well-known victims, especially those who as children suffered at the hands of predators, have suggested that we have not gone far enough. But they have in fact supported this legislation because they believe it's an important and substantive step forward.
So, generally speaking, they have been overwhelming in their support of our pardons legislation, and I think that was evident when we passed , which advanced the most critical aspects of pardon reform.
I would note at that point, Mr. Lobb, that many of these victims' organizations were very concerned. Indeed, I read in the newspaper how many pundits said we will never see come up again and that the issue was dead. Many victims' groups were very concerned about that. They contacted me personally or my political staff so we could assure them that we would bring this bill forward. They see this as a minimum that government should be doing to respect the rights of victims.
So victims were pleased to see the first group of reforms go forward, and we are following through with our commitment to bring the second group before committee here. I've heard some concerns. Some are technical drafting concerns, in my opinion, but it doesn't change my commitment to the principle we're advancing in .
Mr. Holland raised an issue, and I've simply said that if you, as a committee, can find a way to make sure that multiple offenders do not abuse the pardon system, I would be open to considering something like that, but I haven't seen anything better. Canadians out there are telling me that we don't give offenders third and fourth and fifth and sixth and multiple chances.
There are some circumstances in which, even for multiple offenders, we need to look at the situation. But generally speaking, I don't want to break faith with those victims who have trusted our government to do the right things to advance their interests over the interests of the criminal. So I'm committed to doing that.
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I have two practical areas that I'd like to address.
First, on page 8 of your presentation you talked about the purpose of this pardon system, soon to be called “record suspension”. You say, and I think it's a fair summation, that it's “an opportunity to start over with what amounts to a clean slate”.
Going to that point, I agree with you that some convicted persons should not have this opportunity. We've discussed that, the three times up or the persons with schedule 1 offences. I'm fine with that. But this bill contemplates it being acceptable for some people to get a record suspension. For some people, it's never; for some people, it's a yes.
So my question for you is that in the circumstances where it's contemplated as being acceptable for some people to get these record suspensions, what's the public safety rationale to extend the waiting time for the summary offences from three years to five years, and for the indictable offences from five years to ten years? How does that extension itself help public safety? Specifically, do you have any learned studies or objective empirical evidence that somehow suggests that by putting those extensions in, you're actually solving a pre-existing problem?
Minister, I have a two-part question. Here is part one.
You mentioned offenders who have offended multiple times as providing one of the rationales for amending legislation in this manner. I'd ask you—not today, as I assume you don't have it with you—to table whatever documentation, data, or whatever you're relying upon to support the assertion that it's necessary to amend this bill because of that problem. There must be something.
Let me just get the second part out.
The other thing is this. The purpose of the legislation—I read this before—as you indicated it was in your speech, on page 8, is an opportunity to start over with what amounts to a clean slate. I'd like to know whether, if somebody gets a record suspension, they will be able to say when asked, as on a job application, that they do not have a criminal record. And when a criminal record search is done, will the record suspension show, will the previous record show, or will they actually have that “clean slate” that is enunciated here as the purpose?
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You are reading it correctly, but I do want to say, in fairness to everyone and to assist the committee, that obviously clause 9 of Bill C-23B is, to put it simply, quite a jumble. What you find in clause 9 are some elements that were adopted in Bill C-23A, so the committee might well, at some point, feel they don't have to deal with those again.
There are some elements that are new. Therefore, I think the committee will want to consider those, and there are some elements that you may wish to adopt but they would need some technical amendment.
I would also say that the references to the schedules at this point are perhaps a little confusing. There are two schedules to the Criminal Records Act. The first one, schedule 1, is child sex offences. So item 1 under schedule 1 is all the offences that are specifically child sex. On the face of it, they're child sex.
Item 2 is offences involving a child victim but are not, on the face it, necessarily child sex. For example, voyeurism could be against an adult, but this captures only those against a child.
Of course, item 3 refers to offences that no longer exist.
You're quite correct that the exemption as it currently reads refers to only item 3 of schedule 1. Indeed, yesterday I said to Mr. Churney that that seems odd, and asked, why is that? We need an explanation.
I think what we're trying to piece together is, is that in fact the intention of the bill to apply to the entire schedule, or is there a reason why we would only refer to item 3?
I'm beginning to hear from Mr. Churney and colleagues that it may in fact be that it's only item 3, because by definition, in the Criminal Code substantive offences, one cannot be convicted if they fall into one of the exemptions. So we'd have a double exemption going that would not make sense; it would be duplicative.
I still need to confirm that with my Department of Justice colleagues, because obviously we want the committee to understand and to proceed with confidence that it's either item 3 or the entire schedule. All I can say is that we are looking at that. Your reading is perfect. The minister's statement of his intention is also perfect. We need to technically go back and make sure that it's been captured properly.
Seeing the clock at five o'clock, we will suspend this portion of the meeting and move to future business.
We want to thank you again, Ms. Campbell, for attending as our guest today and helping us to work through this bill. I think we made some really good headway on this today. We've seen some areas where all parties want to work together to see this amended.
We thank you for coming and for your help. I usually say this to our guests; f you have other submissions that you would like to make, if you want to help clarify some of those...item 3, section 1, section 2, whatever, you could submit something in writing or get a hold of our clerk to make those clear.
We will suspend for one moment, and then we will go in camera.
[Proceedings continue in camera]