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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 18, 1996

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[English]

The Chair: From The Church Council on Justice and Corrections, we have Mr. Prashaw and Professor Mohr from Carleton University.

Thank you very much.

Mr. Prashaw, you've been before us before so you know the drill. Perhaps you would outline your paper and then we will have questions. I understand you've offered to share your time with the National Action Committee on the Status of Women, and we appreciate that. Thank you very much.

Mr. Rick Prashaw (Communications Coordinator, Church Council on Justice and Corrections): Good morning, ladies and gentlemen.

I work for the Church Council on Justice and Corrections. Renata Mohr is our recently elected president; she's a professor of law at Carleton University. In a few moments she will speak directly to the legal consequences of Bill C-45.

As many of you know, we are a coalition of 11 national church denominations, representing approximately 14,000 church congregations throughout the country. Our member community has come from many faith traditions: Roman Catholic, Anglican, Presbyterian, United Church, Baptist, Evangelical Lutheran, Salvation Army, Quaker, Mennonite, Christian Reform, and Disciples of Christ. Since 1974 we have followed their mandate to speak to the issues, foundational principles, and values inherent in the criminal justice system.

Given the unreasonable and unfair rush to pass these amendments this week, we cannot mince our words today. We are against these amendments to the existing law because we believe these amendments are against justice as we know it. It is a repeal in disguise of the faint hope clause, a move that flies in the face of the evidence of how well judicial reviews are working. There will be profound human and financial costs that will make an already ineffective criminal justice system even more retributive and our communities even less safe. These major changes amount to an extraordinary shift in a policy and philosophy of corrections as it applies to those convicted of murder.

In the words of Justice Minister Allan Rock, ``the faint hope clause and its judicial review process are now to be applied only in exceptional cases''. Yet for almost 10 years it has been a normal and successful part of the correctional and parole system.

This decision amounts to a direct attack on the principle of rehabilitation. This is so for a number of reasons and factors that we appeal to you to take into account before letting this bill become law. The Liberal government, we believe, in succumbing to pressure and confusing politics with justice, wants to keep in prison a full 25 years all those who murder more than one victim, with no attention paid to the wide range of circumstances or cases in this particular category. This will have enormous social and budgetary costs.

According to CSC figures, looking to the future, between next year and the year 2008 there will be 101 individuals who had multiple victims and who will be automatically excluded from applying for a judicial review. Looking backwards, it means that of the 63 judicial reviews that have been heard so far, the 11 that had been processed, which included multiple victims, would be excluded automatically, even though juries of 12 citizens approved immediate or reduced parole eligibility in 7 of those 11 cases. These are people who are now doing well under day or full parole in their communities but would not be out had those proposals been law then.

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Existing rules for the judicial reviews have allowed juries to delve into the human circumstances of particular cases - instances that involved individuals in despair who snapped, love triangles, other individual circumstances. We do not minimize their wrongdoing and neither do juries, but juries and judicial reviews concluded that some had changed sufficiently to begin their gradual reintegration into society without risking citizens. However, demanding a unanimous verdict from all 12 jurors instead of the present two-thirds rule is bound to increase significantly the number of men and women who will serve 25 years of their life sentence in institutions. This will all happen because of the introduction of a variety of factors unrelated to the facts, the real risk, or the rehabilitative work that may have been accomplished.

As well, these amendments must be considered in conjunction with last year's change to the law that requires a judicial review jury to consider any information provided by a victim, either at the time of sentencing or at the time of the hearing. We do not oppose victim involvement in judicial reviews. But when you combine it with the recommendation that the jury must now be unanimous, we know it will take only one juror detracted from reason by the emotional appeal of a victim's family to effectively veto the wishes of 11 other people on that jury - their peer - and keep a person in prison for another 10 years. As a result, the faint hope clause is about to become a no hope clause in this country.

It is in everyone's interest that people who murder and are sentenced to life with no parole eligibility before 25 years come out of prison and into our communities better than when they went in. The monitored reintegration of offenders into society, particularly of those who are reforming or have reformed and are no longer considered a threat, makes all the sense in the world.

Yet Mr. Nunziata, enough politicians of every party, some police chiefs, some media, and some members of the public say no. Keep our communities safe, they say, by keeping murderers in prison. They believe that will protect their loved ones, including their children.

But what about their children's children? We are not responding meaningfully to the problem of murder in our society. We are deferring it to future generations. We are willing the problem to our grandchildren, to Mr. Nunziata's grandchildren, to my grandchildren, to your grandchildren. And they will have the right to indict us for what we are doing.

This is the profoundly human element of our debate today. As much as we would demonize those who murder and treat them as outcasts, they are our brothers and our sisters, they are our sons and our daughters, they are our mothers and our fathers, our fellow citizens, our neighbours, and part of our community, and so are their victims and their families.

We in society today are in jeopardy of forgetting and losing the connectedness that we need to have to each other. What we do to those in prison and their families outside prison, what we do in the name of their victims, we do to all of us.

The loss of anyone's rights or hope is a loss for the whole human family. From our Christian faith perspective we recall the words of St. Paul, ``If one part is hurt, all parts are hurt with it''. When we extinguish hope, when we remove any incentive to change, when we forget that almost all who murder will be back in our midst one day, we forfeit our common humanity.

Those listening to these words may understandably shout back: ``But that is what they did when they murdered innocent men, women, and children''. We agree, and in no way do we excuse or exonerate them for their actions. We too want our loved ones safe and our communities safe. We know there have to be serious consequences for the crime of murder.

Thirteen of the 63 judicial review juries were denied outright the application to reduce one's ineligibility period. The parole board later denied parole outright to 6 of the 50 who had had their ineligibility period reduced. The existing law is working.

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We do acknowledge victims' feelings and everyone's legitimate concern. We have not honoured victims' rights or concerns nearly enough. Having said all that, we reject a justice that is a mask for vengeance or retribution.

On this matter, before hearing from Professor Mohr, as part of our delegation today we have the written words of a newly elected board member who personally knows the horror of murder. Wilma Derksen of Winnipeg could not be with us today. Her and her husband Cliff's young daughter Candace was abducted and murdered almost 10 years ago. Their tragedy led them down a road of painful and ongoing healing. On the one hand, it left them empathetic with the feelings of revenge or retribution victims sometimes have. On the other hand, it has helped them not to equate justice with the harshness and length of a sentence.

Here is what Wilma Derksen has to say:

Wilma tells that story, and we repeat it, not to criticize any victims who choose other paths than hers. The last thing the church council desires is to contribute to a scenario whereby we start to distinguish between good victims and bad victims. Victims are revictimized enough by the criminal justice system. We simply want you to know that the voice of victims is a rich and diverse one in our country, that a growing number of victims are choosing life-giving paths of healing and meeting their needs and rights in ways other than putting all their energy in determining the penalty of the offender.

Professor Renata Mohr (President, Church Council on Justice and Corrections): Since I have spent the last 20 years of my life studying, teaching, and writing about criminal law and sentencing, I'll speak to the specific amendments proposed in this bill.

I worked on the first sentencing bill at the Department of Justice in the early 1980s and then as a senior research analyst of the Canadian Sentencing Commission, as well as a consultant to the Law Reform Commission of Canada on sentencing matters. One thing is clear, and that is that section 745 was working.

I'll be brief in speaking to these amendments, because there is not much to say. On paper they read like amendments, but in substance they will abolish section 745. These amendments provide an extraordinary threshold.

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First, the judicial screening mechanism. According to this amendment a chief justice shall determine on the basis of material presented to him or her ``whether the applicant has shown, on a balance of probabilities, that there is a reasonable prospect that the application will succeed''. That means whether the judge thinks the jury will unanimously approve the application; that is, a jury in the community where the murder took place, a jury that will hear victim impact statements.

It doesn't take a legal expert to figure out that on the balance of probabilities, there is no reasonable prospect that any application will succeed. The chances of getting a unanimous vote on such an intensely emotional issue are extraordinarily unlikely. That is why the legislation was originally drafted to require a two-thirds vote.

But that is a threshold test that the judge is to consider in his or her screening process. The legislation does not require the judge to assess whether he or she thinks the applicant ought to succeed, but rather whether he or she thinks the application will succeed; i.e., whether it will pass unanimously. We respectfully submit that this is not a screening process, it is an absolute roadblock. It will for all intents and purposes abolish judicial reviews.

The requirement for a unanimous jury vote will hence have the effect of preventing most applications from ever passing the threshold. Again, the requirement for a two-thirds vote in the original legislation was a recognition that the role of this jury was different from the role of the jury in a criminal trial. A positive recommendation from a section 745 jury merely gives the applicant an opportunity to apply for parole. The jury decision does not set the applicant free, nor does it involve a determination of guilt or innocence. To require a unanimous vote for a decision of this type is extraordinary.

Finally, the exception that those who have committed more than one murder, regardless of the circumstances, are not eligible to apply is an amendment that is clearly drafted to assure the public that mass murderers will not be eligible for release before the 25-year period has expired. The truth is that few mass murderers exist, and it is clear that they will not be released under existing section 745 criteria. There are, however, as has been raised with you earlier, some prisoners who have been convicted of more than one murder but are in fact good candidates for a parole eligibility review. This ought not to be a numbers game. Each case must be decided on its own merits.

In a Hans Christian Anderson story we all know, two swindlers persuade the emperor that they have woven the most glorious and regal robes ever seen before in the kingdom. The emperor cannot see this fine cloth, but all of his aides compliment him on his fine appearance in the new robes. No one has the courage to tell him that he is naked, that there are no fine robes, that he has been taken. There is no one, except one child in the village, who simply spoke the truth. The emperor, he said, has no clothes. The Church Council on Justice and Corrections has learned, after many years in this field, that it is increasingly important to bear witness, to exclaim ``the emperor has no clothes''.

Never before has this been as important as it is today. The lives of men and women are at stake here. The government is trying to rush through a bill that appears to offer some amendments to tighten up section 745. The passing of this bill will result in the abolition of judicial review. The costs, in human and financial terms, are overwhelming. Millions of dollars will be spent to warehouse prisoners for longer periods. If they do not die in prison, they will be released after serving a quarter of a century behind bars. This is not protection of the public.

This bill is a compromise of an original compromise. That means it is nothing. It is a broken promise.

If you vote for this bill, you are voting for the abolition of judicial reviews. If that is your intent, please speak it honestly.

The church council does not support the abolition of judicial reviews. We do not support this bill. We urge you to leave section 745 as it stands. We urge you to search your conscience before you vote.

Thank you.

The Chair: Thank you.

Mr. Prashaw: Madam Chair, may I introduce a third person to our delegation, Marie Beemans from Conseil des Églises pour la Justice et la Criminologie, Montreal, Quebec. She'll be able to handle any questions with respect to the Quebec experience. She will be able to handle any questions with respect to the Quebec experience, and she has also had a personal experience involving murder in her family. So while she's not a part of the formal presentation, she joins our delegation to respond to questions.

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The Chair: Mr. Langlois, 10 minutes.

[Translation]

Mr. Langlois (Bellechasse): I would like to refer to a few comments made during the second reading debate in the House last night. I jotted down a few of the things you said. However, I am more concerned about things you saw.

If you look at the bill as presented to us, obviously, the definition in subsection 745(2) of a person found guilty of more than one murder must be clearer so that it applies basically to mass murderers, so that it doesn't apply to too many people and exclude anyone who may have been in an unfortunate situation, especially for the victims. I think the definition should be much clearer.

Secondly, based on Dr. Healy's presentation, proposed subsection 745.1 should be of great concern to us. It says that the judge assigned to assess the request must base his decision on evidence in writing. There isn't even a provision for affidavit evidence. The ruling is based on documents sent to the judge. There isn't even a hearing.

There are some very basic rules in this country. One of the cardinal rules is to hear the parties. If this Act is to give greater weight to the hearing of victims or their representatives and larger groups, then that is an objective I fully support. It is too restrictive right now. If part of the evidence is to be in writing, I think it should be affidavit evidence plus evidence obtained during a hearing of the opposing parties or during a discussion before the Superior Court judge, so that the adverse parties have the opportunity to express their viewpoint and be cross-examined on the documents that were tabled.

Finally, the decision will now be a unanimous one rather than a decision made by two thirds of the jury. If that new criterion were to stay, we would basically be repealing section 745, a move I do not support.

Those are the three points I wanted to make. As time goes on, the more it seems we will have to do something if we want to get broad support for this bill in the future. That's all.

I would like to hear from those who know of cases where section 745 as it currently reads was implemented.

Ms Marie Beemans (Church Council on Justice and Corrections): I have attended some judicial reviews in Quebec. I testified at judicial reviews, despite the fact that my adopted daughter was killed by someone who had no record. One night, in a state of mental confusion, he killed three women. There will never be a judicial review of his case because he committed suicide three months after he was sentenced. It is a tragedy. That young man's life was also a tragedy.

In answer to your question, for a number of years I have accompanied convicted prisoners, especially those with long sentences, and I have attended judicial reviews.

Right now, the first stage is to have the prisoner make his request for release to the chief judge the day after he has served 15 years of his sentence. There are always meetings with the Crown. Before moving on to the judicial review, the judge meets with the prisoner and his lawyer to discuss what is allowed. There is a meeting with the judge. The judge will be given more power to say no. Isn't that usurping the jury's power?

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During the proceedings, the judge meets with the prisoner and his lawyer in person, and then with the Crown. It is a long process. A judge is appointed and the meeting is held after his appointment, perhaps a few months prior to the review.

Mr. Langlois: Yesterday I said that if you maintain the two-thirds criterion for the jury to make its decision, we could have a Canadian standard, because right now, according to statistics, there are discrepancies depending on the region or the province of residence, which means that in some provinces, decisions are unanimous or nearly so, whereas in others, they are not.

The fact that one third of a jury can disagree with the recommendation does not mean that the person will be discharged, but gives the accused the opportunity to consult the National Parole Board.

Should that factor be taken into account when maintaining the two-thirds rule rather than the unanimity rule, which, to my mind, would mean a discharge under section 745 would be virtually impossible?

Ms Beemans: It would be reasonable to maintain the two-thirds rule because we are not here to determine whether the person is guilty or not. During the trial, you must have a unanimous jury because they must be convinced beyond any reasonable doubt. The burden of proof lies with the prisoner, who must prove that he is no longer the same person. When you make a ruling, you can end up with various interpretations, but it is no longer a matter of knowing whether the prisoner will be free or whether he is guilty or not: it is a matter of judging whether the prisoner is the same individual as he was 15 years ago. I think it is very important to keep the two-thirds rule.

Mr. Langlois: Thank you. I have no further questions, Madam Chair.

[English]

The Chair: Thank you.

Mr. Ramsay, 10 minutes.

Mr. Ramsay (Crowfoot): Thank you, Madam Chair.

I welcome our witnesses this morning.

Last year 15 people were murdered by those who had been released, either on parole or some other form of early release. That had nothing to do with section 745. They weren't murderers, but they went on to murder. Agencies of government released these people back into society after assessing them, and 15 innocent people paid the price for the mistakes the government and those agencies made.

So 15 communities are suffering as a result of that. Do you feel those 15 murderers should have an opportunity to apply to the present section 745?

Mr. Prashaw: There are different ways to come at it, so we might all want to start. My first comment - it's not a full answer, and that's why I invite the others to join in.... I think that if we follow punitive legislation that closes the doors and puts more people away for longer, there will be fewer resources. There will be people with such extraordinary caseloads that people like the ones you are citing will fall through the cracks.

To me it follows that if you push for the kind of legislation that puts more people away and for longer periods of time, then you get the kinds of things.... I don't know the circumstances of those cases, so I can't comment on them, but to me it's a logical conclusion that when you have an overburdened, strapped system and shrinking resources, and you have people demanding more be put into that overburdened and strapped system, you're going to have people fall through the cracks; you're going to have these tragedies.

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So would I let those 15...? Yes, I would let them, although I don't know the circumstances of the cases, because I know what thorough processes judicial reviews are. There are juries of 12 citizens in the community where those crimes occurred. They would review the case and look at the person's conduct, the nature of the crime, the changes made, and hear the victim impact statement - like judicial reviews taking place today. Some of those 15 would be denied, and then they would stand in line at the parole board, and some would be denied there. I certainly would not want to automatically eliminate any of those 15 from a process that's working well now.

Mr. Ramsay: You refer to the 15 who fell through the cracks. What about the supposition that the justice system is there to protect society from needless risks? Are these statistics, which are lower this year than last year...? Are we to say that things are working okay and we're prepared to accept the present system without amendments and make that kind of sacrifice for the sake of early release?

Mr. Prashaw: No, I'm not prepared to sacrifice anyone. The justice system is one important player of many systems, and the entire community is responsible for safety. We can't place the exclusive responsibility to protect citizens on the justice system.

We find - and you probably deal with this as members of this committee - the unrealistic expectations on the law and the system to protect our community. I'm not exonerating anyone if mistakes were made. I think there have to be thorough investigations. People need to be responsible for decisions so that when those people fall through the cracks, there have to be thorough inquiries. I would never sacrifice anyone.

However, I also think it's important to reach back into our experience. Mr. Ramsay, as a policeman, the Crown, defence.... There are a number of people sitting around the table who bring the experience of a lifetime. We're not talking about theory here, we're talking about human beings, about people who may be in jail right now for murder or who went to jail for murder, or their victims. So when you make these kinds of decisions, we have to put the human face and the story to the individual.

I was talking with a crown attorney recently who said, sure, it has to be tightened up. Then I said, this is what they're going to exclude automatically, with no exceptions. Wait a minute, I know so and so. Do you mean that person...25 years...? No, they've shut the door on that one. So out of your law and justice and probation backgrounds, it's good that as you come to the best solution for this particular bill and proposal that you remember those people on both sides.

Mr. Ramsay: I don't accept some of your argument here in support your position. On page 3 you say ``we know it will take only one juror detracted from reason'' - that's a strange phrase to me - ``by the emotional appeal of a victim's family to effectively veto the wishes of his or her eleven peers and keep an individual in prison up to another ten years''.

It appears to me that you're asking for complete forgiveness from the 12 jury members in order to say this person has paid the price for what he has done, and he has been sufficiently rehabilitated to safely re-enter society. But when I look at this question, and I've looked at it for years.... I can forgive my son's murderer, but the person the murderer must seek forgiveness from, and can never obtain, is my son, and I cannot forgive my son's murderer for my son. So when the 12 jurors say we'll forgive you and release you because your record in terms of rehabilitation is sound, we're missing the key ingredient, and that is whether or not the blood still cries from the ground for revenge and for retribution.

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God willing it will never happen to my son, but it has happened to sons and daughters who cried and begged for mercy, who wanted to live and asked to live but had their lives snuffed out. It is they the murderer must face, not you or I. Yes, I can forgive and as years go by hopefully heal, but there will never be anyone living who can forgive on behalf of the victim, and that is the key to this whole proposition.

What is a fair and just penalty for the deliberate, planned taking of an innocent life? Can you answer that question? What do you think is a fair and just penalty for premeditated murder? That's what we're talking about. We're not talking about - as you mention - people who snap, lover's triangles. I don't think that would meet the requirement of first degree murder. That's second degree murder, perhaps even manslaughter in many cases.

I'd like you to comment on that area. You're asking people to forgive and allow that person to be released from one of the worst crimes they can commit, when they have to do so and have to say the victim would probably say it's okay to release this person, but never knowing.

Also, I'd like your comments on what you think is a fair and just penalty for the worst crime in our system.

Mr. Prashaw: I'll start and then invite Marie to follow up on that.

As churches, and I want to put this in a church context because you spoke from a faith perspective, Mr. Ramsay, we would never ask or demand anyone to forgive. There is no right to or expectation of forgiveness. That's a personal decision and the person is right to make it or not make it.

Mr. Ramsay: What's the jury doing about it?

Mr. Prashaw: A jury is measuring not only a person's progress in terms of coming back into the community, but risk of safety and whether we can have that person reintegrated, monitored for the rest of his or her life so that they -

Mr. Ramsay: And is there no forgiveness?

Mr. Prashaw: That's another level. That's a personal decision between that individual, the family's individual.... Wilma, Cliff and their family made it, and they found quite a difference between the delicious feeling of wanting to pull the trigger versus the deep joy of seeing children in Winnipeg found because of the energy they put into that. They found they could get a kid's swimming pool where kids couldn't swim. They found that there was no comparison between the two. When you ask me what penalty in terms of society, that's what we're about today.

When we know the men and women, with the exception of the dangerous offender provision, will be back in our midst, it's in our best interest, even self-interest, to ask how they are coming back. This is our concern about the fact that we're solving nothing, we're just willing the problem to our grandchildren. That is our concern.

The Chair: Mr. Ramsay, your time is up.

Did you want to complete the answer?

Ms Beemans: I'd like to complete it.

First of all, I don't think we can put a price on a human life. By putting somebody in jail...he does not pay for a crime. He is punished, but you can never pay for a human life.

Of the people you mentioned who came out, before they committed homicides some of them had committed thefts and small crimes and then moved on to a major crime. One thing you mentioned is that this is cold-blooded murder. Unfortunately, maybe in theory. What happens in reality is that a mafioso rarely gets first degree homicide. He has somebody he can denounce. When we see cases of bikers that get so many manslaughter charges - there's been one case of 43.

Since we're talking about people, I would like to mention one young man who said I could give his name. Daniel Benson is from my hometown of Two Mountains. Daniel Benson was a college student whose mother had remarried a man who was very violent. He grew up with a lot of violence on the part of the second husband. One day it was just too much. He called up his father and said, do you know what this man did to my mother?

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The father, one of Daniel's friends and Daniel met the man in Oka Park with baseball bats. Automatically, that made it premeditated. I don't believe they meant to kill him, and he says he doesn't think so. They just wanted to give him a lesson. The man was killed. They did not have the fancy, high-priced lawyers. They did not have anybody they could testify against. They could not make a deal because the difference between first and second degree in most cases is a deal.

Daniel got 25 years minimum - his father and his friend.... He has 14 years in. He has studied. He has his bachelor's degree. He says that if he has another 11 years to do he doesn't know how he can reintegrate into society, as he is becoming more and more caught up in the prison culture.

On the other hand he said that the $50,000 a year for another ten years - use that money to invest in prevention programs for family violence. There are very few programs for the teenagers who live it. Again, a couple of weeks ago there was a young man who killed the man who beat his mother. He said that is where the money should go.

None of our prisoners who have come out - and we have had half the judicial reviews in Quebec - have reoffended. I think one has been suspended for drinking and driving and that was the only thing. And one did a theft. There has been no violence on the part of our people who come out.

When you say that people who were on parole have committed homicides...a member of the correctional service told one of our community-based projects last week that they have no money for post-detention care. For people coming out on parole for crimes that are not homicides, if we invested more in post-detention, maybe they wouldn't go on to major crimes. We need more care in the community.

The Chair: Thank you.

Mr. Gallaway.

Mr. Gallaway (Sarnia - Lambton): Thank you, Madam Chair.

Welcome. Your presence here this morning is an interesting contrast to our group of witnesses of last evening. As we often hear in this committee, when it comes to criminal law matters, sentencing involves a number of factors. It involves punishment, rehabilitation, retribution and other factors. Do you believe first degree murder should only involve punishment? I'm sorry that I've lead off with such a leading question.

How do we deal with these two poles that are thousands of miles apart?

Last evening the Canadian Association of Chiefs of Police suggested that when a life has been taken - and of course they are speaking for their members - the primary objective is punishment. How do we as parliamentarians reconcile what they're saying with what you're saying?

Mr. Prashaw: We're not at all naive to your pressures. We're very aware of that and we respect you for experiencing that. I think at the end of the day, as Professor Mohr said, when you have heard from everyone, you don't count the number of votes or the number of coupons; you look into your hearts and your conscience and think in terms of the human, social and financial costs of what people are asking for. You press both sides. You ask them what they are doing. You can ask us what we're doing with the churches because we're accountable for that. You can ask the police chiefs how much money from the proceeds of crime is going back into the community to help the communities heal and recover.

I would suggest that at the end of the day you get in touch with what justice is to you in terms of making things right, healing communities and lasting solutions, and that you go beyond what you're told to do, or what you're expected to do, and make decisions that are going to bring about truly healing and safe communities.

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Mr. Gallaway: One of the other matters raised last night was that the majority of Canadians want this; they want section 745 abolished. Let's do away with it, because all those people out there want it.

Can you tell me then why all those people out there want it, if in fact that is a correct assumption?

Mr. Prashaw: Well, in a seven-second sound bite in front of the media they may want it, but when we do focus groups with people and we talk about punishment, we say, do you want to hurt people? They say, no, I don't want to hurt people; I want accountability, I want serious consequences, I want compensation.

But in a seven-second sound bite, or in answering yes or no to a question, they say, I want punishment.

Punishment is a very layered concept. In terms of the bleeding that's going on in communities, we have witnesses here today.... I want to give some of our time to them to speak to that, and to speak about false solutions.

We're not dismissing people who say what they're saying. We're very respectful of their concern, but we call them false solutions. I think that rather than me speaking, I would like to see people connected with the community talk in terms of some of the victims and about when they go and hear these solutions and say, these are not true solutions.

Prof. Mohr: If I can just add to that, I think there has been an enormous amount of misinformation about section 745 and how it operates, and that explains a good deal of where the perceived public sentiment comes from.

The studies we've done in the past, the Gallup polls of the Canadian public, show that it is not a punitive public. The studies in the early 1980s and mid-1980s by Doob and Roberts show that when people are given more information about what actually happens in the system, they're less interested in punishment and more interested in getting social programs and prevention.

Ms Beemans: Could I just add that I don't know when people mention the statistics on which they are basing themselves.... But I know that in Quebec, where we have had half the judicial reviews, there has not been anybody asking for the abolition of section 745. People are very satisfied with it and they say, let's get on with healing.

Mr. Gallaway: I want to ask about false solutions, because there are those who would suggest that we could repeal section 745 totally and perhaps overhaul the parole system to the point that it doesn't exist, such as has occurred in certain American jurisdictions where parole has been abolished.

Then you have created the absolute in public safety. Those people who are locked up are there in some cases for good, or for a very long period of time. Therefore, there's no opportunity for that segment of the population to offend again.

But what do you say to them?

Prof. Mohr: Well, I'm concerned about the time and I'd love to respond, but -

The Chair: Don't worry about it.

Mr. Gallaway: That's her job.

Ms Beemans: What about guards? Are guards not part of the Canadian public? There are guards at federal training centres who have said they cannot speak openly and publicly, but have said off the record that they're afraid if there's no hope, there will be more violence inside.

They are part of the Canadian public; they are part of being heard. If there are no healing processes, there's no motivation to good conduct.

Then the guards feel they're at risk. They are also part of the Canadian public.

Prof. Mohr: The assumption that keeping prisoners in for a long period, or a very long period, results in a safer society and safer communities.... I think we really have to educate people better to the fact that that is not the case, that is not true, that you have more safety, more protection of the public through a very careful, supervised release, an integrated release, into the community.

So there are lots of myths we're responsible for helping to debunk here.

Mr. Gallaway: I want to be fair about this, but the other suggestion appears to be that victims groups...victims demand that section 745 be repealed.

What's your experience with victims or victims groups? Would that be true?

Prof. Mohr: Our experience at the Church Council shows that it's been over the past years that we have really experienced the divide and tensions in victims groups.

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Like women's groups, like other groups, there is no one voice. The victims groups speak with two voices, and there is clearly a voice that has asked for the repeal of section 745.

But there's another voice, such as Wilma Derksen's, and there are victims who believe that is not the answer, that the safer society depends on us working better with the prisoners in reintegrating them safely into the community, and that section 745 is the mechanism that is working to help do that.

Mr. Gallaway: Those are all my questions.

The Chair: Thank you.

I want to thank you for coming and sharing your time with our other witnesses. I invite you to stay at the table, if you're comfortable doing that.

I'd like to welcome Joan Grant-Cummings, the new president of NAC. Congratulations on your new position.

Ms Joan Grant-Cummings (President, National Action Committee on the Status of Women): Thank you very much.

The Chair: It's nice to see that you're working so hard already.

Ms Grant-Cummings: I know.

The Chair: I think the agreement was that you would have 10 minutes, but you make your presentation. We're happy to hear from you.

Ms Grant-Cummings: I would definitely like to thank you for sharing your time with us.

NAC strongly opposes the government's proposed amendment to section 745 of the Criminal Code. We believe that the Canadian prison system currently epitomizes the impact of systemic racism, sexism and classism on the most vulnerable in our society. We're talking about women prisoners in particular.

Women prisons, most of them first nations women, women of colour, lesbians and poor women, are put in prison because we have failed to protect them from violence and discrimination.

After they're put in prison, we further punish them by stripping them totally of their human rights and by keeping them in deplorable and atrocious conditions. First nations women and women of colour become easy targets for scapegoating and political exploitation.

The proposal put forward by the justice department serves no purpose but to advance the law-and-order agenda of the right wing that is built upon the exploitation of public fears about crime.

We believe that these proposals do not help to solve crimes in any way, shape or form, and if the government is serious about fighting crime, it should deal with them at the root causes. That means eradicating poverty, racism, sexism and, in particular, violence against women and other systemic oppression.

We believe it is flawed logic for the government to say that they are trying to protect women from serial killers. Section 745 does not, and will not, allow serial killers to get out early.

We find it repugnant that the government should bring in a law-and-order agenda in the name of the protection of women. It is fiscally irresponsible for the government to spend more taxpayers' money on putting and keeping people in jail unnecessarily longer.

In NAC's opinion, the only thing that would be accomplished here is that the Canadian government would be seeking to achieve the development of a U.S.-style prison system. A U.S.-style prison system has now ended up being the social security system for the United States, as they have not enough programs to deal with preventing crimes, and so on. Our government is going down that same path.

Do we want then to put a social security system in place that is putting people in prison? Will the government continue to cut programs that are preventive in nature to promote more spending on an already inadequate and overcrowded prison system?

The law-and-order agenda is not a women's agenda. Women's equality rights cannot be won by punishing, blaming and victimizing the most vulnerable. Studies have shown that first nations peoples, people of colour and poor people have a disproportionately higher rate of refusal for early parole. Even where lesser crimes are concerned, this is so, and they receive disproportionately higher prison sentences, no matter the crime.

The women's equality agenda is to make sure that no one is victimized.

We strongly urge Minister Rock and the Liberal caucus to pay serious attention to what women are telling us from coast to coast to coast: deal with the real issues first. Eradicate poverty, racism, sexism and the other inequalities at their root causes. We do not want our sisters in prison to pay a higher price than they already pay for society's failures.

That's our presentation to this committee.

The Chair: Thank you. We have a few minutes left.

Mr. Nunziata, you have two minutes.

Mr. Nunziata (York South - Weston): Thank you.

I, too, would like to congratulate you on your election. I wish you well in your efforts over the term of your mandate.

With respect to the resolution passed by the National Action Committee, this is a resolution passed by whom?

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Ms Grant-Cummings: The resolution was put on the floor by NAC's justice committee and seconded by the Canadian Association of Sexual Assault Centres, CASAC.

Mr. Nunziata: I see, so this was voted on by -

Ms Grant-Cummings: Yes.

Mr. Nunziata: So they've had an opportunity to -

Ms Grant-Cummings: Yes, we have.

Mr. Nunziata: Does your organization have a brief it wishes to present?

Ms Grant-Cummings: We can present one to you. Luckily we ended up having someone who was able to share a space with us. We can present a brief to you later on.

Mr. Nunziata: I assume you're no different from any of the other groups that have appeared before this committee thus far, that you haven't really had an opportunity to review the legislation.

Ms Grant-Cummings: We definitely have. I mean, there are a lot of things on our agenda.

In fact, we were shocked and surprised that this is actually happening in view of the fact that a number of studies have shown that what the government is doing is not, in any way, going to ameliorate any kinds of conditions in terms of fighting crime.

Mr. Nunziata: Certainly you're familiar with the general issue of section 745. I take it you haven't done a clause-by-clause consideration of this bill.

Ms Grant-Cummings: The justice committee has.

Mr. Nunziata: They have already?

Ms Grant-Cummings: Yes, they have.

Mr. Nunziata: So I assume at some point they'll give us some advice in terms of the various provisions that are being put forward. You're not supportive of any of the provisions in this bill?

Ms Kim Pate (Member, National Crime Prevention Council; Executive Director, Canadian Association of Elizabeth Fry Societies): No, we're not supportive of any of the provisions. In fact we did make submissions to the Department of Justice during the consultations, albeit brief consultations, that did happen.

I spoke to the chair of the justice committee and she regretted that she couldn't appear. Things have been moving so quickly on this, and we've just come out of the National Action Committee on the Status of Women annual meeting.

I need to point out at this point that Joan hasn't pointed out that we do represent - and Joan at the present represents - 375 grassroots and national women's groups across this country who represent the bulk of the women and children who are victimized in this country.

If it's missed by any members of the committee, it's significant that it was the entire.... Not only NAC, but all the women's groups who met with Minister Rock on Thursday last week to put forth submissions on justice issues generally were unanimously against any proposed changes to section 745.

The reason is that we do not want to see a further erosion of principles of fairness and justice in a pseudo-compensatory exchange of live bodies for dead in a way that we find repugnant, that we are the ones arguing for the civil and human rights of people like Clifford Olson.

The public is being fed a bill of goods that somehow this will appease those who are tragically still grieving from the losses, that somehow this will meet their needs, that somehow by the expense this will create, this will create a better system.

We know that's not true. We know that the same places where people will never get out of prison now with these amendments.... They're not getting out now under section 745.

This will not change things, except to create a greater cost, and to put people's lives in greater jeopardy in terms of their liberty being eroded even further. We're talking about women and children in our communities who right now can't get the police to come when they're called.

Mr. Nunziata: Just one final -

The Chair: I should have said for the record that Kim Pate is also here from the National -

Ms Pate: And we're a member organization of NAC.

The Chair: Thanks.

Ms Torsney, you have two minutes.

Ms Torsney (Burlington): In terms of the women who are currently incarcerated in federal penitentiaries, I wanted to understand how this would impact on them if we were to pass this amendment.

Ms Pate: I should point out that I'm here tonight representing the Canadian Association of Elizabeth Fry Societies.

We're talking about the way this will impact on all Canadians, and in particular the most vulnerable groups, women and children in our community, in particular first nations women, black women, poor women, and lesbian women. These are the women who we know already are disproportionately impacted negatively by the criminal justice system, both in terms of not being able to have the police come when they call in many communities and not even having access to the police. We talk about rural communities and northern communities where police are sometimes an hour and a half away.

So we're talking fundamentally about how that impacts on all of us and the fact that we're being lured into thinking that this exchange will somehow meet the needs of all of us. We are ignoring the reality that there may be more people in prison as a result of this, but it's not going to meet the needs, the very real needs, of people in our communities, particularly women and children, who are suffering.

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Ms Torsney: So your preference, rather than to spend $50,000 a year to incarcerate somebody for a long period, would be to spend that money on extra policing services in the north, say.

Ms Pate: It would be to invest in the communities, to have more community development and more social programs for women. We see the cost as not only the increased time of people in prison but also the cost to administer these amendments. We know there will be constitutional challenges. If we allow this to go through, or even if we sit silent as this goes through - if it does go through - we are now seeing the reality that Mr. Olson will be entitled to a constitutional challenge.

We don't want to be part of the group advocating, or to be seen to be advocating, on behalf of serial killers. The reality is, though, an erosion of human rights in this area we know disproportionately affects, always, the most vulnerable in our communities. That's part of the path we're going down that we absolutely reject.

The Chair: Thank you, Ms Torsney.

I would like to thank the Church Council.

NAC, thank you for sharing your time.

We'll now take a short break.

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The Chair: We're back on. I now welcome, from the Canadian Criminal Justice Association, Arn Snyder, chair of the policy review committee; Matthew Yeager, secretary of the policy review committee; Elizabeth White, a member of the board of directors; Johanne Vallée, a member; and from the Lifeline program, Brian Gough.

I take it you have a presentation.

Mr. Arn Snyder (Chair, Policy Review Committee, Canadian Criminal Justice Association): First of all, thank you very much for the opportunity to appear here.

I think you have our written presentation. Just to explain, that presentation was in response to the original Bill C-226. We will be expanding on that, obviously, because of the changes that have come about. So in our presentation today we'll be expanding on what is actually written there.

We're representing the Canadian Criminal Justice Association. For the members who may not be familiar with the actual association, we represent an organization of approximately1,200 members made up of both professionals within the criminal justice system and interested citizens. The Canadian Criminal Justice Association has been in existence for 75-plus years. So that's just the context.

This morning each of the members would like to give you a short presentation of approximately five minutes. I'll just introduce to you the members with a little more description.

Brian Gough is a member of the Lifeline program, part of the St. Leonard's Society of Canada program. Matt Yeager is a criminologist and also secretary of the policy review committee for the Canadian Criminal Justice Association. Elizabeth White is executive director of St. Leonard's Society of Canada. Johanne Vallée is the directrice générale of the Association des services de réhabilitation sociale du Québec.

I am chair of the policy review committee. Mr. Jack Ramsay and I may have something in common in that I've recently retired as a police officer with a municipal police force, after 24 years of service. So that's where I'm coming from, my background.

Brian will give the first presentation.

Mr. Brian Gough (Member, Lifeline Program, Canadian Criminal Justice Association): Thank you, Madam Chair.

Why are these changes proposed? What prompted Justice Minister Alan Rock to introduce amendments to section 745? Clearly, the answer is not as a result of a process failing. In my view, the proposed changes to section 745 stem from the efforts of the victims' rights movement lobbying efforts to change criminal justice policy as well as the concerted efforts of a psychopathic offender named Clifford Olson. For years this man has been able to instil fear and to manipulate the press and public opinion from his jail cell. The media, victims' rights movements and ordinary citizens have been enraged by his remarks.

Olson and others like him are rare in the system and will not be released. It is understandable that the victims' rights movement has become such a strong voice today when the media misstates or misinforms the public as to the existing law with respect to judicial review. The victims' rights movement has the right to lobby government officials, and any thinking person can and does have sympathy and empathy for the victims' families, especially since their efforts have been, for 15 or20 years, bent on vengeance. Vengeance has a crippling effect on the person and on society as a whole, and has no place in rational debate.

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The families of the offender are also victims in a homicide. I don't mean to suggest that their pain and loss is any greater than that of the victims' families, but it's unfortunate the offenders' families do not have an equal voice here today.

The Government of Canada has an obligation to ensure that fairness and justice applies to all Canadians, including those incarcerated and their families. The fearmongering Mr. Olson and the media have instilled should be examined for what it is. Mr. Olson knows only too well he'll not be released, despite his right to apply for a judicial review. There is no existing loophole in the law for any lifer. Life is life.

Judicial review, as it exists, represents a well-thought-out democratic process. The hearing itself takes place in the community where the offence took place. A jury comprised of 12 citizens decides whether to reduce the eligibility date for parole.

For example, a person with a 25-year eligibility date, if he applies, could have one of four possible outcomes: no change or reduction of the period of parole eligibility, but set a date when a new application can be made; no change or reduction of the period of parole eligibility and refused possibility of future application; reduce the number of years of imprisonment without eligibility for parole; or terminate the ineligibility for parole, making the offender eligible to apply for parole at once.

Once - or if - the offender manages to get a reduction in his eligibility date, he must yet go before the National Parole Board and attempt to gain parole. This process is not automatic and requires first a process of pre-release that entails ETAs, UTAs, day parole and then full parole. This process usually takes three years. So one can see, even with a favourable reduction to 15 years, that release is years away.

Of the 752 convicted murderers released from January 1, 1975 to March 1, 1990, less than 1% killed again. These are statistics supplied by the United Nations. As of February 28, 1995, 15 of those who have received a reduction in their parole eligibility have been released on full parole, 6 of them on day parole. None of these people has committed a similar crime. Lifers in general continue to be the best parole risk, with the lowest recidivism rate.

I've given you a brief synopsis of judicial review and my feelings on what prompted the justice minister to propose changes to section 745. I don't see anything broken here. There's nothing that needs to be fixed.

I'm sure everyone present has read a great deal of information on parole and judicial review, but I'd like to take this opportunity to speak to you about change, about change in the human spirit. Unfortunately, misinformation from the media reaches many, and the efforts of the National Parole Board and men and women who work with lifers, clinically and spiritually, are unable to reach those numbers.

The purpose of the federal correctional system is to carry out the sentence of the court, but it is also incumbent upon the system to recognize the profound interpersonal and intrapersonal change that occurs in an offender's life. The system is required to punish offenders by taking from him or her our most precious of rights, the right to liberty, but it is also paramount to make every effort to salvage that life and return the offender to the community as a law-abiding citizen.

There's a period in the lives of a vast majority of lifers when this change occurs. The change I speak of in most cases is well before 15 years. To deny a second chance ignores any semblance of fair and humane treatment and contravenes the very principles of a free and democratic society whose ethics reflect a Christian doctrine of redemption and forgiveness.

I personally know of many convicted murderers who have been released through the parole process and who now live productive, law-abiding lives. They work, pay taxes, employ others and in many cases work in some social capacity to help others.

The proposed changes to section 745, as I understand them, would entail application to a judge for a judicial review before the jury process. This process in itself is arbitrary and capricious, and not in the public's interest in a free and democratic society.

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No application for serial killers: well, we don't know what the definition of a serial killer is.

Changing the jury from a required 8 to 4 to a unanimous decision: I don't see this as a democratic process, either. Wouldn't it be tragic if our Supreme Court was required to act in this fashion?

This law would be retroactive and would have devastating effects on lifers approaching their review dates. It would also demonstrate a complete lack of faith in the many men and women who work in our system to help rehabilitate the offender.

It's been 20 years since the mandatory penalties for murder were increased; first degree to25 years before eligibility, and second degree anywhere from 10 to 25 years, at the court's discretion. The proposed changes to section 745 at an institutional level would mean longer periods of maximum security for most lifers, costing the government and taxpayers, in a time of economic restraint, undue expense. At present, to house a maximum security inmate it costs the taxpayer in the range of $60,000 to $70,000 a year as opposed to approximately $9,000 for day parole.

People who do return to society after serving sentences of 20 years are definitely marginalized. Many offenders now still incarcerated after 20 or more years pose no risk to society. However, their reintegration is impaired and delayed due to other factors, such as a condition I liken to post-traumatic stress disorder, caused by years of living in an environment where high-alert mode is the norm.

Many professionals working in the pre-release process with offenders often see difficulty in finding a suitable facility - for example, a halfway house - for some offenders. Clearly, the suitable facility for some does not yet exist. Changes to section 745 would increase the number of offenders who fall into this category.

For everyone, life without hope is tragic indeed. Changes to section 745 take away hope. When we as individuals or as government take away hope from a person or persons, we demean ourselves as a society. It is incumbent as elected officials that your government does not merely respond to the pressures of lobby groups for political purposes. Changes to this law, as proposed by Justice Minister Alan Rock, do not reflect a comprehensive empirical examination of how the present system is successful. To my knowledge, to date there is no evidence that anyone who has been released as the result of the present judicial review process has recommitted a capital offence. Again, if it isn't broken, why fix it?

I am a parole lifer. I served approximately twelve years in federal prisons, nine of those years in maximum security. I was released on parole in 1984 and achieved a post-secondary education in behavioural science. For six or seven years I worked with and for the developmentally handicapped.

I recently began working for Lifeline Kingston, an agency that works with lifers in the Ontario region. In my capacity as an in-reach worker, I feel compelled to speak for the more than 500 lifers serving their time in Ontario federal prisons. These men and women are also Canadians, and despite the crime, they are still human beings with hope for a better future. They have value to us all.

In closing, I thank you for listening and for the opportunity to be here.

The Chair: Thank you, Mr. Gough.

Ms Elizabeth White (Member, Board of Directors, Canadian Criminal Justice Association): I too am appreciative of the opportunity to speak with you this morning. I am profoundly disappointed as a Canadian at the need to be here to repeat for the record, for the umpteenth time, the comments I and my colleagues and lifers like Brian have been making over the last several months.

Brian has put a very human face on the effects of both judicial review and the proposed changes. On behalf of the board of CCJA, and as executive director of St. Leonard's Canada, I'm going to confine my comments to the tenor of this legislation.

It's discouraging. It's discouraging in the way it's phrased. Phrases such as ``only the most deserving'', without definition, without explanation, without context, return us to a sloppy kind of legislative creation that encourages subjective applications of the law and does not improve our Canadian legislative framework. That's the duty of this government: to provide a balanced legislative framework for this society, to acknowledge openly that there is nothing wrong with the existing process and that it works well, that community safety has not been impaired by either its enactment or its applications. To then create a mish-mash of legislative response such as is before you today is irresponsible.

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The changes are an ill-thought-out reaction to the legitimate voices of pain of victims' survivors. The government's responsibility, in my view, would be to respond to those survivors' needs in a far more proactive way, rather than simply removing the civil and legislative rights of another class of citizens.

There is nothing in these proposed provisions that will increase community safety. In fact you have heard and will hear again that it will lead to greater crime rather than prevent crime, either crime within the institutions - increased lack of safety for correctional officers - or increased lack of opportunity for those coming out of the system.

The current thrust of our society is toward openness and accountability in all matters, including those of justice. The proposed screening by a single judge returns our process behind closed doors. It removes information and decision-making processes from the community. This is a backward step.

To reduce that screening to a paper process is to effectively increase the expense with no discernible benefit. We are simply adding a layer of bureaucracy at a time when we are all acutely conscious of our diminished resources. I suggest those resources that would be applied to this process would be far better devoted to other areas - support for victim's survivors, support for prevention programs, even support for increased rehabilitation programs for those who are targeted by these provisions. An anti-Olson legislative initiative is not the answer to any of those concerns.

The St. Leonard's Society of Canada has a 35-year history of working with federally sentenced men on their return to the community. Brian's Lifeline program is one way we have tried to respond to our knowledge that integrating back to the community becomes increasingly difficult the longer the period of separation, and that's why you start working with people in the institution as soon as possible to help them be better prepared to effectively return as law-abiding citizens.

To just throw away that opportunity of change in an individual, and to not acknowledge that individuals do change while inside, is to take us in a backwards motion. We know more than we did 20 years ago, when we abolished capital punishment, about what works and what doesn't work. It is foolhardy not to use that knowledge for the benefit of all Canadians.

[Translation]

Ms Johanne Vallée (Director General of the Quebec Association of Social Rehabilitation Agencies; Member of the Canadian Criminal Justice Association): I would first like to thank the Canadian Criminal Justice Association for inviting me to join its panel as a member of the association.

The association I represent, the Quebec Association of Social Rehabilitation Agencies, represents 35 volunteer community organizations. Every year we help more than 30,000 people. You must understand that our association's mission is to encourage and support public involvement in the administration of criminal justice. That is an important point for you to have a better understanding of our perspective. We certainly appreciate being able to speak with you today because Quebec's perspective on judicial review is very important.

Secondly, as my colleague said earlier, we are also very disappointed with the way the government is conducting the hearings. The time you have allocated to this matter is a major hindrance to hearing various viewpoints. However, given the importance of this matter, our group decided to join forces with the Canadian Criminal Justice Association to express our views.

I will deal briefly with three issues; the jury, the role of judicial review in managing sentences and public protection, and finally, Quebec's experience.

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As far as the jury is concerned, under this new bill, the jury's decision must be unanimous, which is quite a surprising amendment, if you consider the power that is normally granted to that decision-making body. The jury is first and foremost a vehicle through which citizens can express their views on the decision that justice must make.

We do recognize that unanimity is an important facet of the decision-making process when it is a trial for a criminal offence, because the principle used in those cases is based on reasonable doubt. If the jury is not unanimous, there is then reasonable doubt, which means a guilty verdict cannot be handed down.

In the case at hand, an individual's guilt has already been established. The jury is to decide on the prisoner's progress, and to do so, the jury has access to the entire correctional record, as well as to evidence presented by various interveners who followed the prisoner throughout his period of incarceration.

So a prisoner's behaviour is closely scrutinized. In order to convince a jury to reduce the eligibility period, the inmate must prove that his behaviour is impeccable. That no doubt explains why only 36% of inmates file for judicial review.

On the other hand, as described in the bill, since it is up to the judge to decide whether a request for a judicial review will be heard, one can assume the jury's power is somewhat usurped by the judge's power. Yet the jury is made up of citizens whose community has been hurt by a crime; those citizens then have the opportunity to deal with the prisoner's case again.

We think the judicial review is an important process, which encourages community involvement in the administration of justice as well as the social reintegration of a prisoner, and that is why we object to the proposed change.

Now let's deal with the judicial review in terms of management of sentences and public safety. Let me remind you that the Canadian criminal philosophy and Correctional Services Canada's mission recognize that an individual can change. Amendments that would limit access to that process contradict that philosophy and mean that the purpose of incarceration is solely vengeance and punishment, to the detriment of social reintegration.

Judicial review rewards those who, during their incarceration, made a significant effort to become better citizens. There would be no point in extending their term of incarceration, so that means there might be a good time to release that individual. That is why a judicial review is a useful tool and a necessary one, whereby you can identify those who are ready for a statutory conditional release, instead of keeping them in prison for no purpose, when it would be better for them to try to reintegrate society, which ends up being less costly.

[English]

The Chair: Slow down a little bit so that our interpreters don't have such a rough time. Thanks.

[Translation]

Ms Vallée: Alright. If you restrict access even further, prisoners will lose hope and it will be much more burdensome to manage long sentences. Perhaps you should look at what is happening in France right now. There is a crisis in their prisons, because the number of inmates serving long sentences and fixed sentences is extremely high, which leads to despair, so much so that prison violence is a threat to the safety of inmates and prison staff.

As for the Quebec experience, let me remind you that Quebec has the highest number of inmates who have had positive judicial reviews. The results are excellent. On the one hand, there has not been any repeat offenders among those who were released, and on the other, Quebeckers have done remarkably well in reintegrating those prisoners into their society.

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I heard you say earlier that everyone is asking for reduced access to judicial review. The support that Quebec citizens have shown for Quebec prisoners confirms the fact that some people support maintaining judicial review. Those people work as volunteers in prisons with the inmates serving long sentences, appear with them, support them when they make their request for judicial review and during conditional release hearings, and afterwards, they even work with them once the inmates are released.

The positive results in Quebec have lead community groups to support judicial review as it currently stands; those groups object to any change. In fact, during discussions organized by the Justice Department on this issue, the Quebec groups strongly supported maintaining the process.

Our organizations feel the proposed changes do not reflect reality or meet the needs of public protection. The changes do not correspond to the values espoused by Quebec groups. Judicial review was introduced to allow deserving prisoners to get statutory conditional release. Since then, despite numerous attacks, judicial review has been a fair and effective measure.

Since the measure applies to a group where there is very little likelihood of recidivism, the reason someone might wish that section to be repealed would be simply to get their revenge. We do not subscribe to those principles. We ask that the provision be kept as is. Thank you.

[English]

Mr. Matthew Yeager (Secretary, Policy Review Committee, Canadian Criminal Justice Association): There's something very wrong and seriously disturbing when the professional groups in criminal justice who work in your penitentiaries and courts, who work with offenders on supervision, are almost unanimous in telling you that this bill is ill-conceived and poorly drafted.

I'd like to give you a slightly different opinion. Some of you know my background as a criminologist. I'm both an American and a Canadian citizen, but I was educated and born in the United States, specifically California. I can tell you a little bit about what it appears you're doing from my perspective. I see the justice department and the Canadian government essentially Americanizing Canadian justice. I don't understand why you would want to Americanize your system. Let me tell you a little bit about the American system.

A national research council report recently did a major study of American violence. That report found that there had been a tripling - a 300% increase - in time served for violent offenders in the U.S. prison system since 1975. What was the impact on violent crime rates? That particular research council study concluded - it is right here, ``Understanding and preventing violence'' - that there was no decrease in the rate of violent crime in the United States.

One of the states with the highest homicide rate, Louisiana, also has provisions that when you get sentenced to life for murder, that means life without parole. Is there any correlation between life without parole and homicide rates in Louisiana? Researchers will tell you there's no correlation whatsoever.

In my view, this is essentially the triumph of retribution over redemption. You are following the path of my cousins in the United States for reasons that basically make no sense. Why emulate a criminal justice system that is internationally regarded as a failure? The American criminal justice system is regarded as a failure internationally. Why do you want to emulate that kind of system?

What's wrong with section 745? Less than half of those eligible apply, and 80% get some reduction, an indication to me that members of the community do feel some inmates deserve a lower eligibility date and have made some efforts to change. Of that percentage, less than half who got a reduction had been paroled - less than half, so far.

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What has been the outcome with respect to the people who have been paroled? Basically, except for one person who was rearrested for armed robbery, everybody has done quite well. Is that a mandate to change and abolish or essentially gut this provision? Because that is essentially what you're doing. You're using a back-door method to gut this provision. Is that a basis to gut the provision? I don't think so.

Let me review what we see. We're very concerned about the credibility of this process. You're going into mark-up this evening on this bill, notwithstanding the fact that a whole host of groups would like to testify about this issue, and notwithstanding the fact that when the justice department had a consultation with us it was unanimous that there was no need to change the provision. The justice department has completely ignored the recommendations of its own experts and the community.

This particular bill nullifies community participation. How does it do that? One, you have to have a judge rule first that you're even allowed to go to a jury. Then it changes the jury requirements by allowing one member of the jury to veto the votes of the eleven other members.

This is law-making by headline. It's extremely poor drafting technique to be passing a bill because you don't like Clifford Olson or Paul Bernardo or what have you. It also shows very little faith in the jury system. Do you mean to convince me that a jury of the community is not going to make the right decision if and when Mr. Olson applies?

Last, there's no supporting documentation to justify essentially gutting section 745. The impact it will have on overcrowding is going to be severe. Lifers are already the second major group contributing to overcrowding, next to sex offenders, in the federal penitentiary system.

Finally, in terms of serial murderers, I don't know what ``serial'' means. A lot of the homicides we see are sometimes multiple domestic homicides. It's not defined in the statute or in the legislation you're considering.

For these reasons, I am hopeful that somewhere, somehow, the members of this committee will ask for more time to consider this bill and not rush to judgment.

The Chair: I just want to clarify one point. Of those who requested to appear, I think only one person was turned down. That individual is going to submit a brief. We cast a very wide net in terms of inviting people. Only one person turned that down. Regrettably, it was Skip Graham from Windsor, but obviously he is represented here by Brian and Elizabeth.

So I just point that out, Mr. Yeager. If there are others, we have not heard from them.

Are you ready for questions?

Mr. Snyder: We're ready for questions.

The Chair: Mr. Langlois, you have 10 minutes.

[Translation]

Mr. Langlois: I would just like to remind you that I still think the two-thirds rule for the jury should not be changed. Subsection 745.1, which says there must be prior study by a superior court judge from the criminal section should require not only evidence in writing, but also hearing of the parties. Basically, I think you should be able to present more evidence to the jury.

I share your concerns about the restrictions on those found guilty of more than one murder. Those being targeted are really the mass murderers, the serial killers, but they are not being defined as such. Since we share the same concerns, I would prefer to give the floor to some colleagues who do not share your view. That would probably generate more worthwhile discussion.

[English]

The Chair: Mr. Ramsay, you have 10 minutes.

Mr. Ramsay: I thank Mr. Langlois for his generosity in terms of time. We don't have enough time. We never seem to have enough time.

I agree with all the witnesses that this comes close to being a farce in terms of asking you to prepare a brief on a piece of legislation like this, and asking you to come here, knowing full well your comments are not going to have any impact whatever - and I dare say, none whatever - on the outcome of this legislation. We're going to meet with witnesses all day long. At probably 9 p.m. we'll rush through clause-by-clause. I don't know how we can change that. Why do we have you here at all?

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You know, of all the witnesses who are before us now, Brian, you're the one who expresses a dimension I would like to explore. I don't know whether we can do that in five or ten minutes. I would like to ask you some questions. If you don't feel comfortable with them, just don't answer them, and we'll move on to something else.

Were you a lifer?

Mr. Gough: Yes, I was. In fact, I am a lifer now. I'm on parole.

Mr. Ramsay: The conditions of your parole don't prevent you from appearing before a standing committee, I guess.

Mr. Gough: No, sir.

Mr. Ramsay: Would you share with us the offence?

Mr. Gough: Sure. In 1973 I shot a man. I regret that. I wish I could undo it, but I can't.

Mr. Ramsay: What were you convicted of?

Mr. Gough: I was convicted of non-capital murder. I was originally charged with capital murder, but as you recall, at that time there was a moratorium on capital punishment, and a partial ban. I was caught in between. In the space of one month, between arrest and trial, they reduced it to non-capital.

Mr. Ramsay: Did you know the person you shot?

Mr. Gough: Yes, I knew him quite well. He was about to shoot me. He had a weapon in his hand.

Mr. Ramsay: This group has not touched upon this whole aspect of the relationship between you and the person you killed. I can forgive you. Every member of the family of the person you killed can forgive you.

Mr. Gough: They have, sir.

Mr. Ramsay: But what about the most important person - the victim?

Mr. Gough: I'm going to see that victim again. I'm certain of that. I'm convinced of that. I'm a Christian. I believe the day will come when I'll see him face to face again. I think he has forgiven me.

Obviously, we can't see the victim in this life, but as Christians, I think we know we're going to see those people again. We're going to see everybody again.

I don't know what your faith is, Jack. When I was listening to you awhile ago, I couldn't help but feel your sense of loss, and I'm sorry for that. In reality, what you're suggesting can't be done. We can't have that offender get forgiveness from your son. That can't be done. But in the afterlife, I'm sure it will be.

I hope I've answered your question in some way.

Mr. Ramsay: Maybe we're going in the wrong direction, so I'll ask you a question I've asked other people probably many times. I think you're in the best position to answer it. What do you think is a fair and just penalty for the taking of an innocent life?

Mr. Gough: I have to tell you, I don't agree with 25 years. I don't.

Mr. Ramsay: What would you agree with?

Mr. Gough: I agree the sentence should be life. I understand that, and I agree with it, but at some point in that life sentence you must look at that person. There are people - not the citizen on the street - working with that person who are able to make those evaluations. They can determine if that person is worthy to come back into society.

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If the professionals say he is, if he has made those interpersonal and intrapersonal changes in his life, it's incumbent upon us to give him a chance. He's a human being, and he has a soul. He can be rehabilitated. He can become a productive member of society.

I know of many people who have served life sentences, who have served sentences for one or more homicides, and who are functioning on the street - paying taxes and helping others. In many cases they are helping children, helping juveniles, who need a lot of help, preventing them from going to jail or ending up the way they did.

Mr. Ramsay: How much time should a person spend in incarceration?

Mr. Gough: It's relative to the person.

Mr. Ramsay: But we can't pass a law like that.

Mr. Gough: You have a law in effect now that life is life, sir.

Mr. Ramsay: With a minimum penalty of fifteen years.

Mr. Gough: But it's not a minimum penalty, sir.

Mr. Ramsay: In terms of incarceration.

Mr. Gough: You have a judicial review. You still must go to the parole board after that. The judicial review is only to look at the factors and determine whether or not you warrant a reduction in eligibility. The eligibility date means nothing. You still must pass the National Parole Board and get parole. Or you don't even get a parole; you have to go through years of a pre-release program.

Mr. Ramsay: The point I'm making, Brian, is that if all goes well, a person could serve fifteen years in incarceration and then receive parole - if all circumstances were viewed positively. Is that too much, is that enough, or is that not enough?

Mr. Gough: If the person has made significant, radical changes in his life.... Said quickly, fifteen years in jail is forever. It seems as though you were born there, hatched there, in the jail cell. You have almost no memory of your past. It's an incredibly long time.

Mr. Ramsay: Brian, do you still feel you're in jail?

Mr. Gough: On occasion, yes, I still wake up and wonder where I am. It's an incredibly long time.

Mr. Ramsay: What is your responsibility, if any, to your victim?

Mr. Gough: I have the responsibility, I feel, to be a good and honest citizen.

Mr. Ramsay: You had that responsibility before, though. Do you have any feeling of responsibility to your victim?

Mr. Gough: My responsibility is to society. I can't deal with the victim. I'm never going to see the victim, or contact him, except in the afterlife. So I tend to think about society, how I'm going to be a better citizen, a better person. I have that responsibility just as everybody else has a responsibility to other human beings.

That's an abstract concept, like the forgiveness thing you mentioned, Jack. I don't know how to respond to that.

Mr. Ramsay: Very quickly, Brian, my father is dead, but I have a responsibility to him. I have a very strong sense of responsibility to him. That's the direction I'd like to explore further with you, but we're out of time. Thank you.

The Chair: Thank you, Mr. Ramsay.

Do you have a response to that, Mr. Gough?

Mr. Gough: No.

The Chair: Mr. Nunziata, five minutes.

Mr. Nunziata: Thank you very much.

You would not have been subject to a section 745 application.

Mr. Gough: No.

Mr. Nunziata: You were paroled after eleven years.

Mr. Gough: Approximately twelve years, in 1984.

Mr. Nunziata: Would you consider yourself typical of lifers?

Mr. Gough: Yes, I would.

Mr. Nunziata: So most lifers have done what you've done.

Mr. Gough: I would say, yes, the statistics support that. I think lifers are the best parole risk. They always have been, and not only in Canada. They've also been the best parole risk in the United Kingdom and in many countries.

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Mr. Nunziata: They're also the best inmates, aren't they?

Mr. Gough: I suppose.

Mr. Nunziata: Easiest to handle? They resign themselves to the fact that they're going to be there for a long time? Isn't it the case that the deucers, those serving shorter periods of incarceration, are the most difficult to deal with in penitentiaries?

Mr. Gough: I don't know if that's accurate. I think many lifers come in very disturbed. Their backgrounds differ. They're very violent or very angry or whatever. I don't delve into everyone's personal history, but probably they're the best inmates, yes.

Mr. Nunziata: All right. Arguments have been put forward that if you take away this so-called faint hope, somehow conditions for lifers and for guards would be intolerable, because there's no incentive to conform or to rehabilitate. Do you share that point of view?

Mr. Gough: Would you repeat that, please?

Mr. Nunziata: An argument is put forward that one of the reasons you have to retain section 745 is that it impacts on the behaviour of lifers. If you were to take away that hope, the moment a lifer, or someone convicted of first degree murder, goes to prison, knowing they have to serve 25 years, it would be very difficult to deal with them. They would be more violent in the penitentiary, and less cooperative.

What impact does section 745 have on the behaviour of those who would be eligible at some point in the future?

Mr. Gough: It does give them hope. The individual knows when he's changed, knows when he's rehabilitated. So do the professionals working with them.

I mean, how much punishment is enough?

Mr. Nunziata: But you agree there should be some punishment.

Mr. Gough: You've lost your liberty. That's punishment.

Mr. Nunziata: In your view - and you didn't answer the question put to you by Mr. Ramsay - what is the appropriate minimum period of incarceration for first degree murder, the worst crime in our Criminal Code?

Mr. Gough: I think I did answer that. I said life - but life with a chance to get out when that change occurs in the individual, when the professionals say, yes, this man no longer poses a risk to society.

Mr. Nunziata: But would you not agree that in some cases, someone who commits a murder, from the day they walk into the prison, does not pose a threat to society, because they won't reoffend. Isn't it the reality that most lifers don't reoffend? Somehow, those of you who are opposed to changes or the repeal of it seem to suggest that the argument is one of public safety when that's not the case, in my view and in the view of many people. Public safety is not the issue. I agree, most do not recommit or reoffend. Most can be said to be ``rehabilitated'' the moment they walk into the penitentiary. The issue for me is one of punishment.

What should be the minimum period of incarceration? What value do we put on human life? What period of incarceration is adequate to express society's abhorrence of a planned and deliberate murder? In your case, it wasn't planned and deliberate. The person tried to kill you. You weren't convicted of first degree murder or capital murder. We're talking about the more serious homicides.

Mr. Gough: Again, I think that's relative to the person and to the change. I can't give you a specific number. My conscience wouldn't allow me to do that. I don't think that's a fair question, really.

Mr. Nunziata: Let me just ask you -

The Chair: Mr. Nunziata, your time's up.

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Mr. Gallaway.

Mr. Gallaway: Mr. Snyder, I understand you were a policeman. Is that correct?

Mr. Snyder: Yes.

Mr. Gallaway: Last evening, we had the Canadian Association of Chiefs of Police. I don't know if you were a chief or not.

Mr. Snyder: No. I was a senior manager, not a chief.

Mr. Gallaway: Later on today, we are going to be hearing from the Canadian Police Association, as I understand it, in any event. In terms of policing, Chief Fantino last night suggested that, to a man, all policemen are supportive of the repeal of section 745.

Since we're into quantification this morning, I'll ask you: do you think that all police are in favour of the repeal of section 745? Now, I know there are going to be some exceptions, but I want you to quantify for me some sort of a relative breakdown.

Mr. Snyder: I don't know if I really can; it has been about six months since I've actually retired.

Obviously, there are police officers who aren't in favour of repealing it.

There is a position taken by CACP and also, I'm assuming, the association. It's not the position I've taken or that I agree with.

I don't think I say that 20% are in favour or 80% or whatever. I can't give you that. All I can say is what I feel. I'm certainly not in agreement with the CACP or the Canadian Police Association on those issues. That's just based on my experience of being a police officer for 24 years.

Mr. Gallaway: Mr. Yeager, you're a criminologist. What we're hearing, today at least, is that there are two poles. There's polarization on this issue. There doesn't appear to be any middle ground.

Once again, we've had a number of witnesses suggest to us that this should be changed because the majority of the public wants it to be changed. How do you deal with that argument?

Mr. Yeager: It's a very powerful argument. It's very typical in the criminal law area that we pass our legislation based on the single outrageous, horrendous case. That is a very classic way of generating criminal law.

Let me share with you the experience in the United States of ``three strikes and you're out''. That has been generated literally from a handful of cases that were outrageous homicides or kidnap-homicides that resulted in legislation that is going to have a dramatic effect not only in not improving public safety in the United States, but also just on the impact of where money is going now.

In California there's a system whereby they are spending as much on their state prisons as on their universities and colleges. It's true. This is in my home state. It's where I was born. I think it's very dangerous.

It's easy as a member of Parliament to be influenced by emotion and the popular Gallup polls. Yet we know, as it has been explained to you, that when we do focus groups, or if you put a jury together, as it happens in section 745, and they listen to the evidence and the testimony of the inmate and the counsellors and the correctional staff, that from the track record, people in the community can believe that this person has shown some progress, and then the jury decides to lower eligibility.

So we know that there's a real qualitative difference in what the public really believes when they're given a lot of information about what the inmate is about and what they've done.

They've listened to the victims. Now, the victims, as you know, under Bill C-41 are allowed to testify in a section 745 hearing, which is a change that was implemented last year, although I don't think an Order in Council has specified a date. We have that new provision, which should be very useful, so as an association, we can't understand why we're now rushing into this gutting of section 745.

Mr. Gallaway: Charles Manson - we're using American examples - has applied for parole six times and has been turned down six times. Clifford Olson, apparently, may be eligible under the section 745 provision to make an application in the next months to a judge.

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What would make anyone believe that Clifford Olson will be able to convince two-thirds of a jury that he should be given the opportunity to apply for parole?

Mr. Yeager: One of the outstanding mechanisms of the current provision is the allowing of members of the community to voice an opinion about certain offenders. I'm one of those individuals, along with my colleagues, who have great faith in the community members selected to look at these cases. I am fully convinced that Mr. Olson's chances of a successful section 745 hearing are about as great as me becoming Superman and leaping over a tall building with a single bound.

You have to have some faith in the people who elect you and the people who work in your communities. I think one of the hallmarks of this particular legislation is that it doesn't allow professionals like myself to say that you're ready to go; it allows the jury members directly to make the decision. That's why we have concerns about the filter, requiring a judge to give persons the ability to go. That's why we have a problem with the amendments on the jury unanimity. That's why we have a problem with the serial murder ban and the definition, whatever that means.

Mr. Gallaway: There are those who suggest that life is life and that for someone who commits a premeditated murder, that is a special circumstance that should be set apart from all other crimes. If life is life, if one accepts that, then do you believe that, at any time or in any case, punishment or retribution will be the sole determining factor in sentencing?

Mr. Yeager: I basically think that's an appropriate criterion for a small number of cases. We've seen that with the sentences that are meted out.

For example, in Mr. Bernardo's case, he not only got two ``lifes'', he got a DO, dangerous offender, designation on top of that. The dangerous offender designation basically now is translated into ``life without'', because only about fewer than 3% of all offenders who have been given the DO designation have been released on full or day parole. So we have that mechanism now. We have, in effect, this mechanism.

I believe there will be some small handful of offenders who in fact will never see the light of day through the current mechanisms we have.

The problem is that you're reacting perhaps inappropriately to Mr. Olson and people likeMr. Bernardo. You don't need to do this for the vast majority of homicide offenders, who do not have those psychopathic tendencies.

Mr. Gallaway: In all of these evaluations, you've made reference to the fact that 3% of people who are designated as dangerous offenders have been released. What do you say to those who then point out that this is an inexact science, if I could put it that way? We're into quantification this morning. We are a society that demands numbers and studies. What do you say to them in terms of the possibility of reoffending? One would assume that there's always a statistical chance that one of these people will do something.

Mr. Yeager: Would it be proper for me, Mr. Gallaway, to allow one of my other colleagues to comment?

Mr. Gallaway: Anyone can respond.

Mr. Yeager: Perhaps, Madame Vallée will respond.

[Translation]

Ms Vallée: Mr. Gallaway, when you work in the criminal justice system, you work with risk. Even outside the criminal justice system, you work with risk. No one can guarantee you that neither you nor I will not commit a crime ten years from now. No one. I worked in psychiatric institutions for five years. I saw people who had never had any problems, whose lives were suddenly completely changed for various reasons, and who committed crimes.

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For long sentences and prisoners accused of first degree murder, our society has the opportunity to be informed of potential danger and can study their behaviour over an extended period of time, but that isn't the case for any other citizen. So we have access to all sorts of information that helps us predict their behaviour as accurately as possible.

Those inmates are also made aware of their behaviour because they have to deal with their mistake and dwell on it for a long time. No one can state with 100% assurance that they will not repeat the offense, but on the other hand, all the chances are on our side when we confirm that they have progressed.

Moreover, when they're on parole, they are supervised; they have a life sentence. That means that until the end of their days, if the officers from Correctional Services Canada or from the National Parole Board have any doubt whatsoever, they can send the individual back to prison for a given period of time. That is a life sentence.

I know people who are on parole for life and who have been on the streets for 15 years. Under Bill C-45, they must still constantly report to their officer. As soon as there is a problem, the officer can intervene to send them back to prison. They have tremendous power over an individual's life.

[English]

The Chair: I'm sorry, Mr. DeVillers, there are just a few seconds left, but if you'd like to ask a question, please go ahead.

Mr. DeVillers (Simcoe North): I have just one brief question.

Last night we heard a witness from the Canadian Association of Chiefs of Police express extreme confidence in the Canadian jury system. Later on in his evidence, however, he expressed concern that 80% of people who applied under section 745 were receiving some reduction in their eligibility period.

Could any of the witnesses comment on the efficiency of our jury system with respect to that approval rate of 80%? Do you feel there's a problem in that area, or do you feel it's functioning properly?

Ms White: The success of the jury with the approval rate of 80% of those who actually apply is proven by the fact that there is so little consequence afterwards. In other words, of those 80% who were successful, four individuals have come into problems, two for technical violations, one who is currently unlawfully at large, and only one who is accused of committing an offence - not a capital offence.

So that's the proof of the success of the jury. Clearly, they have assessed the criteria effectively and appropriately and have concluded that those persons are safe to be out.

Mr. DeVillers: So you'd agree with that witness that the jury system is functioning in the case of section 745?

Ms White: I'll correct myself: safe to apply to get out. The further step of the National Parole Board was also effective in only releasing those who were going to succeed.

The Chair: Thank you, Mr. DeVillers.

I thank all of you for your contribution today.

Mr. Snyder: Thank you very much.

The Chair: We'll rise for a few minutes before our next witnesses take their place.

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The Chair: We're ready to resume.

I now welcome three individuals: Jeffrey Manishen, barrister and solicitor with Ross and McBride; Allan Partington, a federal parole officer with Correctional Services Canada; andDr. Stephen Hucker, a professor of psychiatry and psychology, vice-chair of the Department of Psychiatry at Queen's University and chair of the division of forensic and correctional psychology.

Gentlemen, I'm going to ask you to proceed with your presentation and leave some time for questions.

Mr. Jeffrey Manishen (Barrister and Solicitor, Ross and McBride): Madam Chair, I practice criminal law in Hamilton, Ontario. I was an assistant crown attorney in Hamilton between 1977 and 1985, and I've been doing defence work since that time.

One of the experiences I can bring - by way of information to the committee - is that in 1978 I prosecuted someone for first degree murder who a few months ago in Hamilton was the subject of a section 745 review. I sat in with interest. In fact, his application was dismissed.

Since practising on the defence side, I have represented individuals who would at some future stage be the subject of reviews under section 745. One was convicted of two counts of first degree murder and another was convicted of a count of second degree murder and sentenced to life, no parole, for 17 years.

More recently I've conducted a section 745 review involving a man named Leo Rocha, a case that received some coverage in The Globe and Mail. By the time of his application, he was approximately 59 years of age. He's a Portuguese fellow who had no prior criminal record. He had killed his daughter. His defence at trail was insanity. He was found guilty of first degree murder.

He had been a model inmate for approximately 16 years. The application was brought and was ultimately successful, the jury recommending reduction to 19 years for parole ineligibility, which permitted him thereafter to seek unescorted temporary absences and day parole.

I might say that the correctional staff and Mr. Partington, who prepared the parole eligibility report used on the application, and Dr. Hucker, who conducted a psychiatric assessment ofMr. Rocha, at the request of both the Crown and defence, were supportive of his application, so much so that the view was that he could conceivably be the subject of immediate parole eligibility. It would have taken it down to 16 years. The jury still recommended 19 years.

The themes I'll be speaking about will focus on the principles of sentencing - and essentially, this legislation is sentencing in nature - and the practical aspects of section 745. I had recommended to the secretary of the committee that Mr. Partington and Dr. Hucker attend so that you would have some sense not of people who view it from the outside of the application but of people who have actually been involved directly in the process. This will give you a sense of what the applications, and more particularly, the individuals, are about.

I must say, with respect to the current legislation, for my own part I don't feel it is working ineffectively or improperly. There are certainly instances of applications brought by people whom the public might consider not worthy of parole and eligibility reduction, and they don't get it. The juries dismiss those applications, as happened with the fellow in Hamilton and another one in Hamilton not that long ago.

The nature of the legislation proposed imparts some changes that, quite frankly, I don't feel will help a great deal. I'll come back to those in a couple of minutes.

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By coincidence, quite recently our Supreme Court of Canada, in a reported decision released March 21, 1996, R. v. M.(C.A.), dealt with someone who was the subject of a lengthy sentence,25 years. The Court of Appeal had reduced it to 18. In that March 1996 decision, the Supreme Court of Canada spent a considerable amount of time dealing with the principles of sentencing. It's worth a review when we're considering changing legislation that is sentencing in nature. I've arranged for distribution of some copies of the case.

Particularly, the concept of sentencing involves the determination by a judge of what is a just and appropriate term of imprisonment, considering the gravity of the offence, the moral blameworthiness of the offender, and significantly, concepts of proportionality. The essence of sentencing has to be an objective, reasoned and measured determination of the appropriate punishment. It takes into consideration the intentional risk-taking, harm caused and the accused's character.

But the balance...and this is the essence of legislation when we're dealing with a thick statutory sentence, but it's the same for a judge who has discretion on sentencing. The essence is the striking of balance, emphasizing the principle of restraint in the sense that the penalty must be just and appropriate - nothing more.

With respect to the roles played by retribution and by denunciation, it's dealt with specifically by the Supreme Court of Canada. Vengeance is not the same as retribution. Retribution is an objective, reasoned and measured determination of the appropriate punishment, considering the moral culpability of the offender, including things such as the intentional risk-taking, the consequential harm he caused, and his character. But it also incorporates the principle of restraint, as I mentioned earlier. It's different from denunciation. That's society's abhorrence, the condemnation of a conduct.

This is what the Supreme Court of Canada says on sentencing: ``Neither retribution nor denunciation, however, alone provides an exhaustive justification for the imposition of criminal sanctions.'' In other words, when we're determining sentencing, it is not a matter of what adequately expresses society's abhorrence and what adequately affects retribution. The concept is the striking of a balance.

In my respectful submission to the committee, section 745 has as its essence the striking of a balance. Remember, the jury has only one opportunity to get input on sentencing in the criminal justice system. In second degree murder, they are given the opportunity to make a recommendation for increased ineligibility. It can be from 10 up to 25 years. It need only be by a majority.

I've done those cases. I can tell you, there's no set practice on whether counsel even gets to make submissions before the jury on what they should or shouldn't do. Some judges have allowed it and others haven't. The judge isn't bound to follow the recommendation, although it's a factor.

With respect here to section 745, the jury has the capacity to effectively stop the opportunity for the individual to get any earlier break, any earlier chance, to apply for parole. They can terminate it once and for all. It can, by the legislation as currently drafted, be a one-shot opportunity.

So from the standpoint of how the system works, you have the jury with the opportunity to determine what should happen. That's all we're talking about with section 745 - the individual having an opportunity to show he's changed, to seek a release, having served a considerable period of time.

Practically speaking, too, I will tell you that you can't start the process until he's done 15 years. In most jurisdictions, by the time I go through my application, there's a judge appointed, we have the preliminary inquiry, we have a date scheduled for the hearing, and we have the hearing with the parole eligibility report prepared along the way. It isn't 15 now but 16. Even if his parole eligibility was reduced right then to 16, he would have to go through at least two or three years of graduated release from unescorted temporary absences to day parole before ultimately getting full parole.

So I'd submit that the legislation as currently prepared, as currently functioning, hasn't been shown to work improperly. From the standpoint of opportunities to get relevant evidence, there's no question that it's currently permitted by the legislation. I acknowledge that the impact on a victim - or the family of a victim, it might be more appropriate to say - in the case of first degree murder is extreme, but it's the same for second degree and for manslaughter. I wouldn't think there would be a qualitative difference in the emotional impact on the family of a victim killed as a result of manslaughter as distinct from second or first degree.

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So the impact on the victim is worthy of consideration, there's no question, and section 10 currently permits the introduction of that evidence.

I'll now turn it over to Mr. Partington, who in the past has conducted parole eligibility reports of many who have applied for section 745 reviews.

Mr. Allan Partington (Individual Presentation): Thank you.

First of all, I'd like to point out that I was introduced as a federal parole officer with Correctional Service of Canada. That's where I work, but I'm not here to speak for Correctional Service of Canada. Otherwise, I won't have a job to go back to.

I have been involved in corrections since 1974, working two years as a guard in a maximum security prison, then joining the national parole service. I have worked in Timmins, Calgary and Red Deer, returning to Peterborough about 10 years ago.

I became involved with judicial review in 1988. At that time, I was designated by the Solicitor General to prepare what you are familiar with, what's known as a parole eligibility report. As such, I have done to date 18 applications, with 8 pending. But my role is as a friend of the court. I'm not there to represent either the applicant or the Crown. I'm there simply as a friend of the court, to assist the judge, the Crown and the applicant's counsel very often to understand the process. It's often a first time in any jurisdiction. Second, I help the lawyers understand the jargon, if you will, of Corrections.

I'd like to make some comments. I'm not sure if I'm here with Jeff or against Jeff, orDr. Hucker, having known them for a long time, but I do want to share with you some observations I've picked up over the last few years.

The comments made previous to our appearance by the gentleman presently serving a life sentence are very valid. It's important to put a face to the murder.

Public opinion clearly - and Mr. Nunziata will tell you this - supports the abolition of section 745. Public opinion opposes violent crime, as it should. However, my experience is that when you put a face to the murderer and you put him in front of 12 citizens, those 12 citizens have the capacity to demonstrate the compassion I think Mr. Allmand put into this legislation in 1976. I would like to think as Canadian citizens we still have that compassion.

Of the 18 I have done, two-thirds have had success. That speaks against public opinion. Public opinion will sell newspapers, and public opinion will probably support political careers. However, statistically, when you put a face to the murderer and you can observe him over a 15-year period, my experience is that 12 of 18 have had success.

When it comes to the new legislation, I really am pleased with some of the additions. The judicial discretion aspect is important. It's not defined. I'm sure it will be trial and error. However, I think frivolous applications should not be allowed to proceed. Clifford Olson should not have his day simply because he wants to make headlines and wants to add a new chapter to whatever book he plans to write at the taxpayer's expense. I think that's frivolous. I think judicial discretion should be allowed to eliminate those applicants who shouldn't be given this opportunity. They haven't earned the opportunity.

I think the criteria have yet to be defined. I'm sure they'll work that out through trial and error. I know, personally, many of those who have been eligible for years to make this application and who have chosen not to.

You may be familiar with the case of Emmanuel Jack, the shoeshine boy, the murder in Toronto probably 16 years ago. Those offenders have never come for judicial review. I was surprised at one of them. He is quite arrogant, quite self-centred, and he likes publicity, but he still recognized in his own heart that he didn't have a hope in hell - pardon my expression. So he chose not to drag the public and the victim's family through another trial. So keep in mind that not everyone who is eligible makes these applications.

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Another comment I want to make is on the jury process itself. I have advocated since I've been involved in this that it is a sentencing application. I don't see the need to involve a jury. I think it should be a judicial decision.

I did an application in 1991 of an offender who, in my opinion, was an extremely poor candidate. He didn't demonstrate that he should even have been allowed to participate. My job was simply to observe and to be objective. He was successful in convincing a jury into a reduction. I'm reluctant to use the word ``manipulate'', but perhaps that might be a word that I would have used. He remains incarcerated today. He can't even secure a transfer to a minimum security because the Correctional Services and the parole board still recognize him as who he really is.

I have also watched the jury be manipulated in the other direction...where an extremely good candidate was rejected through the theatrics of our courtroom process. I also thought that was somewhat unfair.

So I've seen it go both ways when you involve citizens who really aren't very familiar with the justice system and certainly the courtroom process. I would prefer, myself, that the judicial review be conducted by a judge alone. Therefore, you'd cut down on the time and the expense. I think you'd have a more accurate decision. The justices and the judges I've been involved with have all been very experienced, very senior in their application, and, in my opinion, extremely fair and knowledgeable. I think that would solve a lot of the problems we're identifying by involving the public.

Lastly, when we speak of the victims...I did the third application in the country in Winnipeg in 1989, and at that time victims participated. We had victim input from the siblings of the victim. A nine-year-old girl was killed. She was the youngest of a sib line of five. Her parents have subsequently died, but they participated in that hearing.

I had the opportunity to spend some time with them in Winnipeg. Although they clearly opposed the release of the offender, privately they recognized the dramatic change in the 16 years that they had lost track of him, if you will. They still opposed it, as they should, and it's their right. I would strongly support their right to oppose that type of release. However, they did recognize major changes in this individual. I would add that he did have some success, and it was reduced somewhat.

When you sit in a courtroom trial, on one side you have the victim's family, the deceased's family, and on the other side you have the offender's family who have also spent 15 or 16 years as victims of the same offence - I suppose, the forgotten victims. Their perspective is somewhat different. They still have a son or a daughter to visit with, to celebrate birthdays with and so on. And yes, they still have him alive, but they are as victimized in some ways as the deceased. I think it's important to keep that balance.

I'm glad victims are allowed to participate. I think it leaves room for a revisiting of the offence. I don't think section 745 should revisit the offence at that depth. They should focus on the today and the now, and I think with the judicial review by a judge alone you would certainly be able to focus on that more clearly.

That's about all I can add at this point. Thank you.

The Chair: Thank you. As a point of clarification, Mr. Partington, are you the only federal parole officer who does these?

Mr. Partington: No. In Ontario I was the only one, I suppose, willing to do them for the longest time. There are others who've done them across the country, but it just seems I've done an awful lot of them.

The Chair: So it's not your....

Mr. Partington: No. I'm a parole officer. I work in the community normally. This is extra duty.

The Chair: Okay. Thanks.

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Mr. Manishen: One of the other reasons why I suggested Dr. Hucker be invited is because he is a psychiatrist who has also had involvement with the concept of psychiatric assessment as it relates to section 745 applications. He has given evidence on several of them. I'm sure the criteria, testing processes and measurements he can speak about will be helpful too.

The Chair: Go ahead Dr. Hucker.

Dr. Stephen Hucker (Professor of Psychiatry and Psychology; Vice-Chair, Department of Psychiatry; and Chair, Division of Forensic and Correctional Psychology, Queen's University): I would like to reiterate that I'm here by invitation, for which I thank you. I have no particular advocacy position, any more than when I go to court and I'm asked my opinion there.

I've been a forensic psychiatrist for about 20 years. For most of those years I was head of the forensic division at the Clarke Institute and director of the Metropolitan Toronto forensic service. During that time I evaluated many offenders. I have the dubious distinction of having examined Mr. Olson, and last year I was involved in Mr. Bernardo's case, where I don't think I was regarded as a soft sell. As I say, I have no advocacy position, but I express my opinions clearly, I hope.

I've done many parole assessments over the years, and I've actually been asked to perform 13 assessments for judicial review purposes. When it came to testifying in court, I testified for the Crown on four occasions and for the defence on three. I wasn't called at all on three others, for whatever reason, and three are still pending. I suspect the individuals just haven't pursued their applications.

Just for your own information, I thought it would be useful to give you the impressions I have of the questions that were particularly asked of me in the cases. I should like to say that I found these court hearings not by any means perfunctory. They're very detailed and involve careful review of all the evidence that's available.

The first area that has been particularly relevant to my own expertise is the issue of what parole officers and parole boards call mental instability. I always translate that to mean whether there is a mental illness present and whether there is a personality disorder, in particular psychopathy, a term I use in a professional and technical and not a lay sense. There's a great deal of interest in sexual pathology. These relate to the question in the current legislation relating to character, the nature of the offence, and information that may have been obtained from victims.

The second area where a great deal of interest has been shown is whether this individual has had any treatment for whatever ails him or her and what we can expect the result of this treatment to be. Would this person be likely to improve, and has it made this person any safer, if he or she were unsafe in the first place?

In relation to this, the third area where a great deal of attention is being paid, in the cases I've done, is the prediction of risk. Until about 10 years ago, when I was invited to participate in dangerous offender hearings and so on, I always declined to do so on the grounds that it would be unethical. My reasoning was that at that point in the research into this subject there was no evidence that people like myself, or anybody else for that matter, were able to predict, greater than chance, who would commit another violent offence and who would not. People used to joke in prisons and secure hospitals, ``I know that half my clients - inmates - are safe to release, I just don't know which half''.

In the last 10 years, researchers have been fully cognizant of the problem and have developed instruments, tools or checklists that help us to be more precise. As Canadians, you can be proud that two of the best state-of-the-art approaches have been developed in this country. The psychopathy checklist is a reliable method of identifying psychopaths, used in a very technical sense.

The identification of such people enables us to much more accurately identify those who will repeat a violent offence. A refinement, using that instrument as part of another assessment tool, was developed at Penetanguishene, a maximum security mental hospital here in Ontario, where the relapse rate or recidivism rate of individuals who have been released was studied.

So this is not a theoretical instrument, but is actually based on failures. We didn't just let them go and say, that's too bad. We've actually tried to find out the characteristics of those who succeed when they're released and those who fail.

When I've testified in these cases there has always been a great deal of interest in what the instruments are and what's involved in identifying those at high risk and those who are not.

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In terms of my general observations, as I've said, I haven't found these processes at all perfunctory. They're very detailed. Although the Crown and the defence in the case Mr. Manishen and I were involved with both agreed that I should testify, I've generally found myself in the middle of the adversarial parties, with the Crown taking an aggressive approach to keep the person locked up forever and the defence the opposite. So it hasn't been a question of simply rubber-stamping a professional opinion.

The area where I think I might be able to add something to your current debate is over the term ``multiple'' killers. At least I read it as ``multiple'' in your proposed legislation and it has been used by others here as ``serial''. These are two different things.

Of three individuals who I had in mind from my list, one was a multiple killer. He murdered his whole family and was denied reduced parole eligibility.

Mr. Manishen and I were involved with one of the other two individuals. He was a man who, in my view and in the view of a number of professionals who testified at his trial, suffered from a mental illness that could affect any one of us. He suffered from a major depression with psychotic features. In that episode he killed his young daughter and nearly killed one of his other family members. So although he wasn't a multiple killer in the sense that he had more than one victim, it was very nearly a multiple murder.

All the evidence at the trial supported the fact that this man was not only relieved of his depression and a model prisoner, but his family and others who were brought to testify had no problem with his reduced parole eligibility. It was the most deserving case of all the ones I've done. In fact, as Mr. Manishen said, he did not have his parole reduced to 15 years. I think it was 18 or 19 altogether. So for him this was not being let out early by any means. He will still be serving a substantial sentence.

I think those are my general observations. If you have questions, I'd be pleased to hear from you.

The Chair: Thank you.

Did you have any other comments, Mr. Manishen?

Mr. Manishen: Yes. I would agree with Dr. Hucker's comments about the need for clarification in relation to the exclusion of those involved in the acts of multiple killing. Perhaps there might be a better distinction.

If there were two victims, for example, in a single episode, as distinct from separate and unrelated offences, the individual in the former, where it was a single episode, might not be disqualified, but if they were separate and unrelated offences, clarification might be permitted, for example, to exclude that individual. I can acknowledge that it reflects a higher level of appropriate sanctioning as to who ought to be disqualified. It would pick up some of the more notorious cases. In my experience, it does happen that individuals who have, for whatever reason, been involved in an episode of extreme violence may well inflict that on more than one person at a single time and yet may be perfectly suitable candidates many years later for the parole reduction concepts that are envisioned by section 745.

I might say also - illustrative of the independence of each of us - that I don't agree withMr. Partington on the role the jury plays. If we're trying to strike a balance but further ensure that the Canadian community is confident in our justice system, it's perfectly appropriate to say that the only time someone who has been convicted of the most serious offence known to law can ever get the benefit of an opportunity for a break on sentence and apply for parole earlier is with the input of members of the community. He must pass through that gatepost.

From the standpoint of considering whether the current legislation has to be amended or repealed, or considering, as the question was raised earlier, the number of cases that are successful, it would be really interesting - if we could ever do it - to have those jurors who approved the applications over the cases we've heard discussed put in a room and asked: ``Why did you do that? This person was convicted of a very serious crime. One of the things you were supposed to consider was the nature of the offence, which in itself can involve the facts, including a multiple killing. Why did you permit this person an opportunity to apply at an earlier stage?''

My bet is that the answer would be because it was just and appropriate. There was a sufficient change in him that they felt he could start the process of returning to the community. We have to remember that. The current legislation hasn't been shown not to work at this stage.

So when we're considering why we should refine it, I suppose we could say that from 1976 to 1991 we didn't have anybody yet get to the 15-year mark. Now we do. Now we have a couple of cases - one or perhaps two that might be extreme - of individuals who could unsuccessfully seek the reduction. Everyone got particularly concerned about it, and that may have led to the legislation being revisited.

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The Chair: Before we start the questioning, and just to clarify, because you've come from three different backgrounds in three different areas, Mr. Partington did comment on a threshold test or his approval of a mechanism to deal with frivolous cases. Do you want to comment on that now or do you want to wait?

Mr. Manishen: Yes, I can comment now. I looked at that and tried to consider what it would take to show a judge that there was ``on the balance of probabilities'' a ``reasonable prospect'' of success. I can envision that the majority of these applications will be brought under circumstances where the applicant will need legal aid. It may well be the case that in provincial legal aid plans, before a certificate is issued, much as in the case of the civil case, you'd need to give an opinion letter as to the merits. So there's your first threshold built in within provincial legal aid plans.

To try to show the reasonable prospect of success, how do you ever martial the evidence, including doing the parole eligibility in advance, having the psychiatric assessment done in advance, getting the benefit of the victim impact information in advance and drafting a statement of facts? That's generally how it happens. The Crown and the defence sit down and work out a statement of what happened, a statement of the facts of the offence.

It strikes me as very difficult, and I don't see that there will be a very meaningful exercise in a judge being asked to assess it in that fashion. I suppose there may be isolated cases where someone might not get through, but I can't conceive of many instances in which that step wouldn't be much more than perfunctory.

The Chair: Thank you.

Mr. Langlois, ten minutes.

[Translation]

Mr. Langlois: I will be very brief. I would like to say a few words about Bill C-30. I just wanted to say that I agree with Mr. Partington to a certain extent about the need to have section 745. For a long time now, I have been a supporter of a system that would make current prisoners affected by section 745 eligible for the system that applies to everyone else.

However, our bill is not to be used as a substitute. If that were its purpose, I presume it would have been sent back to committee after first reading and we could have held lengthier hearings on this matter.

I will give the floor to my colleague. I basically support your views. I would therefore prefer to have others who do not share them shed some light on this matter. Thank you.

[English]

The Chair: Thank you.

Mr. Ramsay, ten minutes.

Mr. Ramsay: Thank you for coming today.

I want to deal a little bit with the concept of the jury. During a jury hearing on a section 745 application, if all of the facts of the first degree murder could be placed vividly before the jury there is no doubt in my mind that the jury would never grant ineligibility reduction. The reason for that is the emotional impact that those facts would have upon the jury. In spite of the rehabilitative turnabout that may have occurred within the applicant and the obviousness of that to the jury, I doubt very much that those who could see a vivid picture of the truth of what happened, of the victim crying for help, of the victim screaming, of the victim dying, of the victim bleeding and so on, would grant a reduction in parole ineligibility, even though the person would convince the jury that he will never harm anyone again.

If that is not true, then why do you say that Clifford Olson will never be granted a reduction in parole ineligibility? If I am wrong, all Clifford Olson will have to do is convince the jury that he is no longer a danger to society, that he has been rehabilitated. But in spite of the fact he can do that or may be able to do that, everyone so far who has expressed an opinion on Clifford Olson's chances has indicated that he has no chance. It's because of the heinous nature of the crime that still lingers in the minds of the people who are looking at him and saying to themselves, ``Yes, he may not be a threat, and in fact he's convinced us that he is not a threat, but because of the heinous nature of the crime we will not grant him what he seeks, which is early release''.

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Would any of you care to comment on that?

Mr. Manishen: I can give you a couple of responses from the standpoint of the assessment of the emotional reactions of juries.

But I'll start by saying that when you speak about being able to place all of the facts vividly in front of the jury, remember that one of the issues that is to be specifically dealt with on a section 745 application is the nature of the offence. There aren't rules right now as to what the Crown can't do in being able to demonstrate the nature of the offence.

Evidence can be called to show all the relevant circumstances, and the more emotionally colourful the facts are, the more I'm sure the Crown would want to introduce them and the more the Crown would be able to emphasize them. It wouldn't be specifically an emotional appeal because the Crown is not permitted to do that. Believe me, I was a prosecutor for eight years and you can do plenty to appeal to emotion by emphasizing elements of the offence or elements like the nature of the offence.

I will tell you that in my experience juries don't react that emotionally. I've seen cases with examples of heinous crimes where the jury still takes many hours - Bernardo was one of them - to deliberate and come back with a verdict that's appropriate.

So, number one, there's no restriction on the Crown's ability to emphasize the nature of the offence in order to succeed in knocking off a section 745 application. That's why I say I wouldn't worry about it.

Mr. Ramsay: Then I would ask you this question. Do you think that Clifford Olson, appearing before a superior court judge, would be able to pass the test and go on to a full jury hearing?

Mr. Manishen: No. If we have this legislation I expect he'd be screened out.

Mr. Ramsay: Why?

Mr. Manishen: Primarily based on the nature of the offences and his own particular character.

I don't feel that a judge would demonstrate.... Let's be straight about it. That's the purpose of this proposed amendment. It's to knock off that character. If there is one-half of one percent of those individuals who might not get through, that's how you keep them out.

Mr. Ramsay: The justice minister vehemently denies that this legislation is designed for any specific case.

Mr. Manishen: But from the standpoint of the response, we have to acknowledge that there's been a kind of a lightning rod of attention. There has to be some recognition of an attempt to screen.

If we view it the other way, is there a value to a screening process that way? Sure, because although Mr. Partington said there are many people who won't bother applying, there may be some who would like the opportunity to get onto the centre stage when everyone knows the case has no merit. This is a screening mechanism that keeps it from getting started.

Mr. Ramsay: Mr. Partington suggested that we do away with juries because they can be manipulated. How are they manipulated? Can you find twelve people in this country who do not have a deep emotional abhorrence for what Olson has done? How do you get by that emotional barrier? It's already been created.

But I'm suggesting to you that if you could show a video of the murder - and depending on the skill - and those irrelevant facts without deliberately attempting to arouse emotion.... The truth arouses emotion. Facts arouse emotion. The deed arouses emotion. I'm suggesting to you that the more vividly or, in other words, the more truthfully the commission of the offence is relayed to the jury, the less likelihood there is that they will not decide emotionally or will not be influenced emotionally and turn down the request, exactly as they will do with a Clifford Olson case, simply because that emotion has been planted in the minds of most Canadians over the years.

Mr. Partington: Mr. Ramsay, if I may comment, in the case I did in 1989, they brought glossy coloured pictures and the Crown and the police department focused entirely on the nature of the offence. It involved the abduction, rape and murder of a nine-year-old girl whose family was in the process of moving. When they went to load up the car to move, they couldn't find her. Four days later she was found in the woods. The family was devastated. The Crown focused entirely on the nature of the offence and brought pictures and police. The victims testified. However, the applicant had some success - didn't get immediate eligibility, but it was reduced.

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The basis was the change that he was able to convince 12 citizens he had made. He had gone from being a young, inadequate, depressed, shy, reclusive, abused boy in a community to being well educated, articulate, with a Bachelor of Arts degree, having completed many treatment programs, having been able to get the support of expert psychiatrists and psychologists. He was able to demonstrate a significant change, which the jury translated into allowing him the opportunity to be paroled.

I would point out that he remains incarcerated and in a day parole setting today because the parole board, despite whatever happens in a judicial review hearing, is not bound by that. He was successful in 1989, yet in 1996 he remains in a halfway house, which is a limited release. He's on day parole release. He's out during the day but back at night. He's been in that centre for four years because the parole board continues to move very cautiously and very slowly and continues to measure risk on a regular basis.

Mr. Ramsay: I appreciate that, so I would ask you why you come to the conclusion that Clifford Olson will never receive a successful application? Why, if he can demonstrate that he is no longer a danger to society and that he is completely rehabilitated?

Mr. Partington: Dr. Hucker has had the opportunity to actually look into his character, so I won't speak about his character.

Mr. Ramsay: I want an answer from you on this.

Mr. Partington: My answer is that he will not be able, in my opinion, to convince the jury that he has made any significant change whatsoever in the 15 years he's been incarcerated. In other words, I can't think of anything he has -

Mr. Ramsay: I'm sorry, but that's not the question.

Mr. Partington: That's the second part.

Mr. Ramsay: No, the question is this: if Clifford Olson's successful application is dependent only on his ability to establish in the minds of the jury that he is completely rehabilitated and no longer poses a threat to anyone in society, then his application ought to be successful.

Mr. Partington: It won't be because the second criterion is his conduct while serving his sentence. He has to bring to the court evidence supporting his conduct, supporting the changes, demonstrating.... He has to bring witnesses who can testify that Clifford Olson is okay now. I can't think of any witnesses he could bring forward, beyond perhaps a fiancée of some sort who wants to marry him for the publicity. I can't think of anyone he can bring to bear that evidence.

However, I can think of many who would bring evidence to the contrary on behalf of the Crown to speak against his application. I'm not a psychiatrist or a psychologist, but I have 22 years' experience dealing with their reports and their analysis, and I can't think of a psychiatrist or a psychologist he could convince that he's okay now. He is serial in nature. He is psychopathic and he's dangerous.

Mr. Ramsay: I don't know if you've put your finger on my question. I don't think you have, but thank you.

The Chair: Thanks, Mr. Ramsay.

Mr. Nunziata.

Mr. Nunziata: Mr. Partington, you indicated that you've done 18 applications and 8 are pending.

Mr. Partington: Yes.

Mr. Nunziata: Do you make recommendations in those parole eligibility reports?

Mr. Partington: No, not at all. My job is to summarize the volumes of file material gathered over the years of incarceration and to reduce that to a report for the court, primarily focusing on his conduct while serving his sentence. I'm questioned about the various terminologies and the types of things that occur during the 15 years of maximum security.

Mr. Nunziata: Is your evidence critical in one of these applications?

Mr. Partington: My evidence is critical in the sense that it's a reduction of the file material so that we don't have to go through volumes. It's presented objectively, so if the report is a positive report, it's because the offender has had a positive adjustment over 15 years.

Mr. Nunziata: Of the 18 reports you've done, how many have been positive?

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Mr. Partington: Again, in my opinion, probably about 14 or 15.

Mr. Nunziata: Of the 12 that were successful, were they all positive?

Mr. Partington: No. I can think of a couple that were successful that I didn't feel were deserving. In my opinion, which is not part of the process, when I looked at that evidence -

Mr. Nunziata: Of the 12, how many were negative?

Mr. Partington: Probably about four or five. Some of the good ones didn't get anything and some of the bad ones, in my opinion, did.

Mr. Nunziata: This is pretty interesting to me. Of the 12 that were successful, you summarized all the evidence and four or five in your view were not deserving of consideration at the section 745 review. That's a pretty telling statistic or piece of information, wouldn't you think?

Mr. Partington: Again, it speaks to my comment on the jury.

Mr. Nunziata: So you blame the jury?

Mr. Partington: No, I think the jury is susceptible to being manipulated by other witnesses. I am not the only witness.

Mr. Nunziata: When you gave your evidence, I assumed you were taking some pride in the fact that two-thirds of the applications were successful, but obviously that's not the case.

Mr. Partington: No, not at all. Again, I have -

Mr. Nunziata: It's with some distress that you found that four or five of 12 were failures. What percentage is that? Are you saying about 40%, 45% of the juries for these applications go against what you, someone who's at ground level, someone who looks at all the information, someone who talks to all the people within the penitentiary system...?

Mr. Partington: What I'm saying is that as an objective observer of this process, having no interest in whether the guy is successful or not, I've watched some candidates, some applicants, be successful where, in my opinion, they shouldn't have been. Again, I have seen others who, in my opinion, should have been successful and were not.

Mr. Nunziata: Right. Do you support section 745?

Mr. Partington: Yes, clearly.

Mr. Nunziata: Do you support the changes that the minister is bringing forward?

Mr. Partington: As I said earlier, I agree with many of them. It's been 20 years. It's certainly been 10 years since the first judicial review in 1986. I think it's time we revisited the legislation, but I still think we have to allow for hope and we have to accept that people can change.

Mr. Nunziata: There are three basic elements to this legislation. I take it you don't support the one with respect to the unanimity requirement for juries because you don't have confidence in the jury system.

Mr. Partington: Again, I wouldn't support unanimity.

Mr. Nunziata: What about the other two provisions, the screening process...?

Mr. Partington: I like the screening process because, as I said earlier, it eliminates the frivolous applications and saves the taxpayers' dollars. The victim input was basically allowed through the Swietlinski Supreme Court review conducted several years ago. Since that time, the judge's discretion...victim access to this process has been in every case I've done.

Mr. Nunziata: In the case of multiple murders? That provision in the bill?

Mr. Partington: Again, I agree. I was uncertain of what that meant. I'm not a lawyer. Does it mean more than one murder over a period of time or does it mean multiple victims?

Mr. Nunziata: I am also very interested that you've chosen to come to give evidence. You are in effect an officer of the court. You refer to yourself as a friend of the court. You've given evidence that will be transcribed and available to the general public.

Aren't you concerned that at some point your comments about the jury system will be used to discredit your evidence at a hearing? You seem to be the one who is carrying the ball for the majority of these applications. If you've done 18 of some 60 applications, that's almost 30%. Yet you have in effect discredited the jury system that we have with respect to the section 745 applications.

I would suggest to you that your evidence in future hearings can be challenged, based on the evidence you're giving today.

Mr. Partington: First of all, I have every confidence in my ability to continue to provide objective, factual evidence to the court.

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As with any witness who testifies in a court, you can believe some of what he says, all of what he says, or nothing of what he says. The jury is instructed to either disregard this man's testimony or listen to whatever part you want to believe. My comments on juries are independent of the individuals who sit there.

Mr. Nunziata: But you used the term ``manipulate''. You said juries are manipulated.

The Chair: Mr. Nunziata, your time's up.

Mr. Partington: I've seen them being manipulated, yes, in my opinion.

The Chair: Thank you, Mr. Nunziata.

Mr. DeVillers.

Mr. DeVillers: Thank you, Madam Chair.

My first question is for Mr. Manishen. Just as a clarification, what precisely is the Crown's role in a section 745 application?

Mr. Manishen: I would probably start by saying the Crown's role is opposed to the application. I think we can presume that's going to be it. From the standpoint of emphasizing those aspects of the elements...the nature of the offence, questioning changes, and the character and conduct of the individual while incarcerated, and ensuring that the applicant is essentially put to the strict test and proof of the elements that are the subject of the application.

The Crown can't appeal to a motion. The Swietlinski case was a problem in that regard with respect to the issues that were put to a jury. That's the same as in the prosecution of any criminal case, so the role has to be more objective than this.

I would say, though, that there may be somewhat more room for cooperation between prosecution and defence in a case like this because you don't have to relitigate all the facts that were forming the basis of the original trial. So often you'll work out the factual basis that way.

Mr. DeVillers: Is it still an adversarial process, where the Crown is there to see that the person's application isn't successful and the defence counsel's purpose is to see that it is successful?

Mr. Manishen: It definitely is.

In fact, in the matter that I did in Brampton, the Crown who prosecuted the trial originally came back and prosecuted on the section 745 application. He is now the regional director of crowns.

Your question is really an interesting one. He actually went to the jury and recommended to them that parole eligibility could be reduced to 19 years. I was seeking to reduce it down to essentially now. The Crown essentially supported the application and said to the jury, let's take it to 19 years. If it's 19 years he has less than three years to go before his first parole eligibility date, so he can now start the process of unescorted temporary absences and get to day parole and on to full parole.

That's normally the way it works. Three years before your first parole eligibility date you can start that path, and it takes three years to then get to full parole. He supported it. The jury essentially agreed with what he suggested.

Mr. DeVillers: Thank you.

My next question is for Dr. Hucker. You mentioned psychopaths. In the mid-1960s I worked on summer staff with Dr. Elliot Barker in his early work at Oak Ridge in my home town of Penetanguishene. At that point, the common thought seemed to be that it was very difficult to diagnose the future behaviour of psychopaths.

With your experience with section 745 applicants, what percentage of them would have been diagnosed as psychopaths?

Dr. Hucker: I haven't the data with me, because I came here today when I was on the road. But I would think probably three out of the 13 would be frank, unequivocal psychopaths. The rest, as most offenders, have a range of scores on a psychopathy checklist that would probably put them in the middle range of risk. A very small number, maybe one or two out of this list, would have such low scores - as our mutual case - that they couldn't even in a month of Sundays be considered psychopathic. So the majority of them have the kind of scores you find among the prison population.

Mr. DeVillers: What's the current psychiatric opinion on predicting the possibilities of recurrences by psychopaths?

Dr. Hucker: We can now do it much better than we used to.

Mr. DeVillers: So there's some confidence in being able to predict it.

Dr. Hucker: Much more than when you and my learned colleague, Elliot Barker, were together.

Mr. DeVillers: Okay. But what we're dealing with so far is the issue of predicting the possibility of a reoccurrence, a re-offending, by the applicant if they do eventually get early parole. Mr. Nunziata stated to a previous witness that punishment is a motivating factor in the opposition or the will to seeing section 745 eliminated. Mr. Partington referred to public opinion earlier as well, saying that it supports the eradication of this application.

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I had people together and hosted a panel on law and order in my riding. We'll be hearing from one of them here shortly as a witness representing victims' groups, Johanne Kaplinsky. I had a judge, a prosecutor, a defence counsel, a former offender, a young offender, someone representing the media - people I thought all had something to bring to the discussion.

The editorial in my local paper said that we really shouldn't be looking to criminologists, lawyers and experts to make our decisions for us in criminal law matters, and I guess this is getting back to Mr. Partington's position on public opinion. I wonder if you three, as people involved in the system, would like to comment on that editorial.

Mr. Manishen: The immediate response I'd give you would focus on the lack of a balanced perspective in public sentiment. Dealing as I do with issues relating to the admissibility of evidence under the Canadian Charter of Rights and Freedoms, if we looked at simple public sentiment it would be this: the person was charged with a crime, the police got the evidence, introduce it. While our courts have interpreted the charter with some sense of the need for balance, the well-informed member of the community who is cognizant of and concerned about balancing rights and freedoms...you then get into the question of whether the admission of the evidence would bring the administration of justice into disrepute.

Similarly with sentencing, from my own perspective, public concern has focused on one path essentially, and that's the crime control model. It has maximized deterrence and concepts of retribution. I haven't been able to lobby or marshal any groundswell of petitions saying we should find balance in the sentencing process. I don't get to go on talk shows that often to ask about balance, although I seek the opportunity. Whenever I get the chance, I try to remind people that sentencing is not a one-way, punishment-oriented street. We saw this just a couple of months ago from the Supreme Court of Canada.

So the response is that as participating legislators, lawyers and judges, we certainly have to be cognizant of public concern. When we're dealing with the idea of denunciation, that reflects the public abhorrence of the crime, but that's not where our inquiry and our determination end. That's part of what we consider.

The major theme I have with respect to the presentation to this committee is only that of balance, is only that of not being swayed so much towards one perspective that you turn a blind eye to the overview. That's frankly where this section, and the fact that it has had some review, is illustrative of balance. It tries to strike a balance between a significant sanction and the allowance for change over a long period of time. That's what the legislation is for, that's what the legislators are for, and that's the balance lawyers try to strike too.

The Chair: Mr. Maloney.

Mr. Maloney (Erie): Mr. Partington, I would like to ask for your comments as both a parole officer and a corrections officer on the concept of faint hope. Can I have your comments on what this concept means in reality to both the offender in his desire for rehabilitation, if any, as well as to the corrections officer who has to deal with that offender on a day-to-day basis in the prison setting?

Mr. Partington: I earlier heard Mr. Nunziata - and I'm sorry to keep referring back to you - speak of the lifer going into the institution. A life sentence is the maximum punishment we have in the country. When you're speaking of punishment, that's it - a life sentence is a life sentence. The person meets his warrant expiry date the day he meets his maker, when he dies.

Within the institutional setting many lifers are low-risk and very pleasant to get along with. My experience, having dealt with hundreds of them over the years, is that they make excellent inmates. They have high potential for rehabilitation. They are good citizens, good institutional citizens. If I could have a whole caseload of lifers, I would be very pleased within the institution. However, the courts have said the punitive aspect of that sentence is an ineligibility to come for parole for a period of time - 10 years, 15 years, 18 years, 25 years, or whatever.

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They could be model citizens within the institutional setting, and many of them are. You must keep in mind that a life sentence has no release date; therefore their behaviour is very important throughout that period of incarceration because they have to be able to convince a parole board that they deserve an opportunity to be paroled at some point. So it's very important that they behave appropriately.

The two-year guy or the three-year guy gets out. No matter what he does, he will get out. The court cannot extend the sentence beyond his warrant expiry. So he can be a little jerk and he'll still get out, but a lifer never gets out. So their behaviour is controlled in that way.

When in the community, similarly, if they wish to remain in the community serving their sentence, with conditions, with reporting requirements, they have to make sure their behaviour is satisfactory. If it isn't, they go back.

Mr. Maloney: Is that faint hope? Is it any different whether it's 15 years, 20 years or 25 years?

Mr. Partington: Well, regarding 15 years, again, in 1976 when the legislation came in, the government of that day, I thought, showed tremendous balance. I think 15 years is exactly where it should be. I think that satisfies the punitive aspect of the sentence. Fifteen years is a long time. It's a life time for many people.

Many offenders who commit murder come into the prison when they're in their late 20s. If they do the 15-year minimum, which they rarely do, they get out in their mid- to late 40s. You think about what you did between the ages of 25 and 45 in your life - the fun you had, the girls you met, the places you went, the things you did. These people are incarcerated. I don't care how you look at it; it's punishment.

But the balance at 15 years, I think, is appropriate because at that point the punitive aspect has been satisfied. If they can convince a jury or, in my opinion, a judge, that they've changed, then let's give them the opportunity and - I heard it said once - a chance at a chance. Give them the opportunity to apply for a parole. If they are successful, they still have to live with that sentence the rest of their life. But the punitive aspect, I think, is satisfied at 15 years.

The Chair: Thank you, Mr. Maloney. That's the time we have for this session.

Mr. Manishen, I know you went to some effort to put this panel together. It was very interesting, and we appreciate it very much.

Mr. Manishen: You're most welcome.

The Chair: Colleagues, before we rise to take the next witnesses, I want to let you know the following. I'm not going to short-change this group; we want to hear them for their full time. But immediately following that we have to deal with a report of our steering committee so that we'll be set up for September. So I'd ask you to hang around after that.

We'll rise for five minutes so we can take care of our telephone calls and minimize the interruptions - and turn off our cell phones, folks.

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The Chair: If we can get the cameras out of the room, we'll get started.

We have more witnesses still to come. Has anybody talked to Ms de Villiers? I think we'll start because I don't want to lose track of things. If she comes, we'll just interrupt so she can join.

I want to welcome you all. I want to say again to the audience that if you have cellular phones, please deactivate them. It's disruptive to this setting and it's also very rude to our witnesses to have them interrupted by that accursed piece of equipment of the modern age.

We'd like to hear from each of you and I think that's your plan. Darlene, you're in the middle, so I'm going to put you in charge.

I think it's your plan that each of you address us individually. Have you chosen an order or would you like us to do it? Do you want to just talk among yourselves for a moment?

Ms Sharon Rosenfeldt (Victims of Violence International): I guess I'm first.

I thank you very much for having us appear before the committee.

I would like to start off by saying I certainly do understand that this is a very highly charged, emotional piece of legislation, the repeal of section 745 and/or the amendments the justice minister has made. I believe that when you're dealing with human beings' lives, the lives of the lost, the people who were murdered, and the surviving victims' families, as well as the offenders, their families, and their advocates, an issue like this is going to be very highly charged.

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Therefore, I feel that because it's such an important issue, it has to be talked about and addressed in a much broader context than is being done at this time by just a few days in a quick rush in front of the justice committee. On the other hand, I do want to thank you for inviting me to appear before this committee.

I won't go on for very long. I do have something prepared, which I've had for a little while. I've thought about it and I cannot change the way I feel. I cannot change the story of what happened. Some of my emotions are talked about in here, and I still feel the same way I did when I wrote this. I want to try to identify why it is specifically that I have a problem with section 745, and in particular with the new amendments the justice minister announced.

I've wrestled with it. It basically brought me to my knees because I've known about this piece of legislation for quite a number of years and I've thought about it. I just cannot accept the new amendments the justice minister has put forward. I still have to stay with the total repeal of section 745.

With that I'll just carry on so I don't take up too much time, as there are a number of witnesses here.

I will introduce myself again. My name is Sharon Rosenfeldt and I am the mother of one of eleven children abducted and murdered in 1981 by Clifford Olson. For the last fourteen years I have had to bear the pain of not only the loss of my son, but the manner in which he died. It has not been easy.

At this point I might add that one of the witnesses prior to me brought up a very good point. I hope you'll bear with me; I've never done this before, but today I felt this was very important because I'm almost at the point where I will be able to eventually put my son to rest. What that witness said was that it is important to put a face to the murder. I'm the only one here. This wasn't discussed, but if you don't mind I'll just put up my little boy. This is fifteen years ago.

I am not alone in this plight. Every year in Canada the government announces statistics saying that the murder rate in Canada is not nearly so bad as everyone imagines. Only 700 people were murdered last year, they say. That's a decrease of a small percentage from the year before. We are supposed to feel good about this. Well, I don't. It still means that another 700 families will have to endure the same heartache and pain that I endure on a daily basis. It never goes away.

Think about it. Every day in this country, another two people are wilfully murdered, leaving a large number of parents, grandparents, aunts, uncles, and siblings with pain, and it subsides only with time. When the offender is found and taken to task for their dirty deeds, the courts give them life imprisonment with no chance of parole for 25 years. It's small consolation and it does not bring our loved one back, but it is the closest thing to what is right.

Someone who did not care about the rights of their victim is sentenced to a life behind bars, and this will supposedly ensure that this time the offender will not be allowed to inflict this same sort of pain upon another innocent victim and their family. But it doesn't work that way. Section 745 allows the offender another chance, a chance they did not give their victims.

It turns out that the only life sentence really being served is by the family of the victim. After only fifteen years the offender is allowed a hearing that could allow the offender a chance to be released. He or she can carry on with their lives in the community. Once again the lives of the families of the victims is thrown into disarray. It is like the crime happened only yesterday.

There is extreme pain from the loss. What if I happened to meet the offender on the street? Did the judge not say no parole for 25 years? Will the offender murder again and cause another family the pain we have been through? Where is the deterrent for despicable acts of violence when after only15 years the offender is allowed a chance to get on with his life?

In my case the murderer was convicted of 11 murders; 15 years in prison amounts to fewer than 500 days in prison for each act of rape and murder. Is the life of an innocent child only worth a little over a year in prison for the offender?

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An end must be put to this second chance for murderers in any context. The penalties imposed by the courts must be carried out. Most families of murder victims can accept the verdicts handed down by the courts. At the start they may believe that the offender should receive the maximum, life imprisonment with no parole for 25 years. Following a trial the offender is sometimes convicted of second degree murder and given a life sentence with no parole for 10 or 12 years. They will accept this in time, but they cannot and never will accept a judge stating life with no parole for 25 years and then having to see this sentence reduced in only 15 years.

It is our contention that the sentencing judge is best able to make an informed decision on the penalty to be imposed upon the offender. He or she has heard mountains of evidence, and the decision is informed and usually fair according to our current laws. Many judges even state that they hope and pray that the offender is never released from prison. They too must wonder when their sentence is lowered by another court after only 15 years.

Emotional upheaval - that was what I felt on February 8, 1996, when I found out that Clifford Olson, the killer of my son, had applied for his 15-year judicial review. I do realize that the full application cannot be made until August 12, but I know that all the paperwork is ready. I have known for the past number of years that it was his right to apply and that in all likelihood he would. Yet for some reason, although my mind knew it could be a reality, my heart, emotions and soul denied it. I was afraid to think about it, so I put my feelings on hold, something I've grown accustomed to. I know how to make certain feelings go numb. I learned how to survive like that.

You see, I have to stay strong because I made a promise to my son as his coffin was being lowered into the ground that I would do everything I could as his mom to ensure that the person responsible for killing him would be brought to justice. I promised I would never leave him until that happened. I know I have to put him to rest and that he deserves to be put to rest, but the laws in our country prevent both of us from experiencing any peace.

When I learned that Olson had indeed made the application, I was stunned. Suddenly many images flashed through my mind. I felt shock but I shouldn't feel shock. I felt angry but I shouldn't feel angry. I felt hurt but I shouldn't be hurting. I felt betrayed and I felt panic. I couldn't breathe and I couldn't stay still. I kept pacing from room to room. I wanted to cry, I wanted to scream and I wanted to run again.

What about my family, my two remaining children? My daughter was 9. She's now 24 years old and has joined us today. She has been quite involved with us. Thank you, honey.

Why do we have to go through this again? I felt weak and vulnerable. I can't lose my dignity again. I needed someone to talk to, but who would help me? I finally called my brother-in-law in Saskatoon. I could not hold back any more.

I have tried to prepare my family for the 15-year review and all the feelings that would surface again, but I guess we are all human. No matter how many years go by, we will never be prepared.

I went into the family room and took my son's picture off the cabinet. I sat down and stared lovingly at him, outlining his face with my hands. He looked so perfect. You see, I always have to reconstruct his face in my mind because a hammer was used on him. He was beaten beyond recognition. I cradled his picture next to my heart and once again made the same promises I had15 years earlier. I got on my knees and asked God to give me the strength to keep my dignity. This is very important to me because after Clifford Olson took my child's life, he also took my dignity for a while. I will not let Olson and the system do that again.

I do not know how my family will get through this, but we did it once before and I suppose we'll do it again. My feelings, my family's feelings and my story are no different from those of any other victim's family. We are all the same.

The only thing I can hope for is that some day one of us might be able to enlighten the political will to recognize a very simple statement that could change the lives of many, many victims. That statement is that justice will not bring our loved ones back, but it is the closest thing to what is right.

It is a simple statement, but there is a catch to it. It means that someone would have to be strong enough to begin saying no to murderers, their battalion of lawyers and their advocates. Until that time comes, we will continue to take what is handed to us. We will keep telling our story and someone will recognize that simple statement and truly understand what it means.

Victims, victims' families and victims' advocates are constantly being told that we cannot bring emotionalism into the justice system, that there is no place for it. On the other hand, if one is honest, forthright and playing fair, one would have to admit that emotionalism has been the basis for any changes in the justice system to enhance the rights of the offenders. Section 745 is a prime example. It is certainly not based on common sense; it is strictly emotionalism. The term ``faint hope clause'' says it all.

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We did not ask to become a part of Olson's life, but he made himself a part of ours. I will not break my promise to my son. I will continue to fight until I am able to see that things are made right. Section 745 must be repealed.

As I have just said, I cannot consciously sit here and address the amendments to the justice minister's piece of legislation because it goes much beyond Clifford Olson. Clifford Olson is only a symptom of what has to be done. That's why whenever his name comes up everybody is so repulsed by it. Everybody just says, why do we have to keep bringing up Clifford Olson? He is but a symptom.

I share with the other families here today and I really cannot answer to the justice minister's bill. I will forfeit as Daryn's mom. Daryn and I, my family, we will forfeit the possibility of an automatic right to a hearing in August of this year in order that other families may benefit somewhere down the line.

In that context I will end by saying that I truly believe this whole issue has to be talked about at great length. It cannot just be pushed through. I have a lot of respect for our justice system, the justice committee and our Parliament. I have a lot of respect for our country and our laws. But please, when they need fixing, don't push them through.

Thank you very much. I'm sorry if I took too much time.

The Chair: I just want to welcome Priscilla de Villiers. We've decided to proceed. I hope you don't mind. Thank you for joining us.

Who is next?

Ms Darlene Boyd (Individual Presentation): I guess I am.

Thank you for giving us the opportunity to voice our concerns and our opinions.

In 1982 our 16-year-old daughter Laurie was abducted, sexually assaulted repeatedly and stabbed 18 times. They didn't leave her any dignity. They then proceeded to douse her body with gasoline and set her on fire. She was the second victim. There was a High River girl. It was the same scenario, but they beat her head in with a tire iron. This is what we are talking about here. We are talking about people who commit heinous crimes like this.

Murder is all too readily said. It's a word that I don't think you can even anticipate the meaning of unless you're directly involved. As I sat here last night the word ``murder'' was said at least100 times. The word is all too easily said, but it is certainly not truly understood. I heard murder compared with dying from cancer or in a car crash. Believe me, murder is a long way from these scenarios.

Another word I frequently hear is rehabilitation. I truly believe that the man who took our daughter's life and that of the young girl from High River is not and never will be rehabilitation material, especially after serving only 15 years in his confined environment. To rehabilitate there has to be some spark of remorse, and James Peters did not demonstrate any of this. The chance of filtering men like James Peters back into society after 15 years through the system we now have is too great a risk. We'll be digging more graves for innocent people.

Truth in sentencing must be addressed here. Our maximum penalty for murder in this country is life with no eligibility for parole for at least 25 years. This, however, is a lie, and the lie is still going on. They're still telling this lie at the time of sentencing. Nobody told us about section 745. We found out about it from a newspaperman - not from the parole board or the legal system, but from a newspaperman. That demeans Laurie's life right there, I would say.

We were ignorant as far as believing and trusting our justice system is concerned because that's the way we were raised. We raise our children to respect our justice system. It let us down and it is still letting people down. We are paying an enormous price, and we thought Peters would pay his price in its entirety by serving the 25 years to life, at least 25 years.

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Section 745 is the root of Canadian distrust and outcry for change. All across western Canada, Canadians are pleading for and demanding true justice reform, because what we've got is not working.

Bill C-45 will not provide that.

Multiple murders should carry a consecutive sentence but should not be deemed to be any more horrific than a single murder. The outcome is the same: somebody still dies; somebody is not present at the dinner table or at Christmas or at birthdays. The outcome is the same, so how can you distinguish one as being any more horrific than the other?

By hastily pushing Bill C-45 through without any firm foundation, I'm wondering if it's not going to create more of a problem than we already have. The issue is too important. It affects too many lives.

Section 745 does not have to be in place to create amendments. Repeal section 745 with Bill C-234, and then look at a full set of amendments. Don't use a quick band-aid effect. Support repealing section 745 and reinstate credibility and belief in our Canadian justice system. That's when we'll be doing something.

The Chair: Mrs. Mahaffy.

Ms Debbie Mahaffy (Action): I'm glad to be here. We found out about the various committee hearings by accident, and I'm very glad that we scrambled our way to Ottawa and got here on time.

Section 745 is about time. Bill C-45 is about time. Time is in control of the universe and these hearings. Nothing can be balanced against time. Time is precious, powerful, and too short. Everyone who has come before this justice committee has been ruled by time and frustrated by time constraints. Everyone who speaks to this committee, to this issue of Bill C-45 and the repealing of section 745, has stated that they have not had enough time to prepare adequately to testify regarding their areas of expertise and experience, regarding the seriousness of the dilemma of whether to repeal section 745 or whether to patch it up and plug as many of the holes or problems as have been identified in its philosophy to date.

The time allowed to me to speak will be too short also, as it is very difficult to prepare to share with you my expertise and experience.

Nineteen years ago - a very long time ago, but it seems like yesterday - on June 19, 1976, I had never been happier in my life. Then I knew what being happy was really about. I was eight months pregnant with my daughter Leslie Mahaffy. But I was wrong, because a very few days later, almost 20 years ago, on July 5, 1976, I gave birth to Leslie, a beautiful baby girl.

Every mother has beautiful babies; that is not unique. But what was unique was that I had had ovarian cancer and at the age of 9 and again at 14 had received two surgeries and massive cobalt radiation. I was told I would never be able to have children. I had no control over that disease; I had to accept that reality.

As Leslie grew, my happiness and my husband's happiness grew. Time was good to me. Time was good to us. This joy was increased, even though that was unlikely. Seven and a half years later, I gave birth to Leslie's brother Ryan.

For the next very short seven and a half years, Leslie, Brian, my husband, and I lived our lives to the fullest. Then came 8 a.m., Saturday, June 15, 1991. She did not come home from a visitation at a funeral where she had experienced the pain and grief of saying goodbye to her fifteen-year-old friend's coffin and received her last kind, loving kiss from his parents and her last, kind loving hugs and kisses from her friends.

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On July 10, 1991, on my birthday, police told me that it was her desecrated body that had been found in cement in Lake Gibson, near St. Catharines, 40 kilometres from our home. On July 25, 1991, not yet 20 years ago, we buried her casket. I did not see her to say goodbye, nor did my husband see her. I had no control over that. Only her murderer had control.

The police assured me she was in that casket. They still have to assure me of that. Twenty years have not yet gone by and I still had not quite passed July 25, 1996, the five-year mark since her first burial, and it often seems like yesterday.

Is capital punishment adequate punishment for her two killers? No. No one has the right to take the life of another human being.

In 1976, the year she was born, the government of the day was, I believe, correct in abolishing capital punishment.

Is life in prison with no eligibility for parole after 25 years enough for taking the life of one person? No. Is it enough for taking the life of more than one person? No.

Is 25 years a waste of a life? Yes. But the killers who decided to murder my daughter made that choice. By doing so they decided their own fate and are now wasting their lives in comfort.

Is 25 years enough time for my family to recover from the loss of all the joys she would have brought us, all the experiences we would have experienced with her? No, it is not. No, because life is time and no one, not even the government of this day, can balance the loss of life, the loss of anyone's loved one at the hands of another human being - to use the term ``human'' in its intended meaning - with the lives, rights, of the murderers. You cannot balance the victim's or the victim's families' rights to life, liberty and freedom against a penalty, a punishment, for the worst crime that all our society agrees that it is, and that is murder.

But we and this government and all the possible advisers to the justice minister, all interested, all knowledgeable Canadians who have a broad spectrum of knowledge and expertise in such matters as crime, punishment, rehabilitation, bereavement, law, philosophy, psychology, psychiatry and the sciences far too many to list, must be heard, should be heard before either Bill C-45 or section 745 is repealed, and repealed it should be, judged, because it illustrates an unfairness of Canadian law to the most harmed in society, that is, those who have been murdered and those who do not murder.

To do anything less than that is to say the best is irresponsible, unconscionable and does not represent our Canadian values of zero tolerance of violence, but continues to the erosion of the sanctity and the preciousness of life and fairness.

Life is fair. It may be unkind and many may die before their time through illness and accident, but family members with the gift of time and uncomplicated grief can learn to live again with a much different perspective. However, when a family is struggling to recover from an unnatural death, a murder, a death caused with intent, caused with a lack of compassion, with a total disregard for all of life, even though he or she may only take one life of another, they have destroyed the lives of many who knew and loved that person.

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May our society's laws reflect our abhorrence and non-acceptance of a killer's and all killers' actions.

My family and all victims' family members have to recover from a death that is not normal. The bereavement is not normal, the grief is not normal, recovery is not normal, and to build, to redefine, to live a new and normal life will take a lifetime, not just 25 years but the rest of my life, the rest of my son's life, which I pray each night will be more than 14 years, will be more than 25 years, will be more than 60 years from now. Is that too much to ask, that the people in Canada not be allowed to steal the precious years of another's life without forfeiting some, at least 25 years, of their life in freedom? And don't forget statutory release, early parole, degrees of murder, the mitigating circumstances, the effect, the punishment of taking another's life, the consequence of taking another's life.

I am talking in absolutes. Twenty-five years is absolutely 25 years before considering release back into society, because that is the closest balance our government could ever come to my absolute pain and other victims' families' absolute pain and slow rehabilitation to a much lesser degree of happiness for the rest of my life. This absolute pain is felt by a growing and hourly increase in the number of Canadians who feel this absolute loss of joy. Our loved ones are absolutely dead. Killers should receive nothing more absolute than the guarantee of their life in custody for 25 years. My son does not even have that guarantee. How can I protect him?

You, this justice committee, this government and, I wager, every MP and MPP in Canada have not heard the screams of terror and the cries of their child as she pleaded with her killers to let her live, to let her come home, but everyone has heard the synthetic cries of murderers wanting protection in prison for his or her safety, or wanting better food or a bigger cell or no cell mate or a different cell mate or release from prison. The wants and the wishes of the murderers are even given fiscal priority over the needs of victims' families whose members need professional counselling - the mothers, fathers, siblings of all ages, grandparents, cousins and friends whose lives are forever changed.

Forever is a very long time. That much, I can assure you, is a very real concept and a very real measure of time. Just as reform should not be done in a shotgun fashion, just as reform must consider the immediate impact on the values of Canadian society and the long-term impact on society, just as reform amendments must reflect the majority of the Canadian people - and the murderers so far are not a majority - all Canadians must be aware of this proposed reform amendment. All interested Canadians must have the opportunity to contribute their opinion, their knowledge, their expertise to this hearing. Has this been done? I think not.

Individual rights are protected by the charter, but innocent Canadians' rights should be weighed more heavily than the perpetrators in truth, in sentencing and in reality. Innocence is to be valued more than the rights of a murderer defined as someone in our society who has committed the worst crime that every citizen in Canada does unanimously agree on, and that is the crime of murder.

The Canadian people must be given time to speak, not in eight or ten minutes to the justice committee and government. The invitations to speak must be extended to all, not a select few. I cannot accept that even Leslie's murderers had 100 times more time to torture and kill her than you have given to me and to each witness who appears before you.

Bill C-45 speaks of filters and impact statements and information from a variety of sources to determine if a murderer should be given his or her hearing and possible freedom or reduced sentence.

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At the moment a family begins to think about preparing an impact statement, the terror, the grief, the revictimization is triggered by the justice department. These traumatic triggers that torment family members of victims cannot be registered by law, by a grief certificate, or even by the Richter scale. Sadly, pain is a simplistic word for time wasted.

Bill C-45 does not address the concerns of murderers and it does not address the pain and concerns of all victims' families. It does not address or even come close to dealing with the real issue in section 742, which is murder, and how as a society we live with it.

We cannot live with murder. Simply put, we cannot live with murderers. So a long period of healing time for the victim's family is needed and a long time for reflection for the murderers is needed.

Leslie could not live. Every victim is testimony to that issue that murders cannot be ignored; they cannot be tolerated or dismissed quickly.

There is nothing wrong with the easy debate over the sanitized legalities of the law, but neither is there anything wrong with validating the emotions of those most egregiously harmed by murder. Emotions must be factored in the murder and sentencing equation and all discussions that the murderer has created.

Victims cannot hide their emotions very well, nor should they be required to do so.

Lawmakers, lawyers, society as a whole, and especially a committee such as this are afraid of emotion, because, sadly, one day any one of you may be sitting in this chair and asking your peers to keep in touch with humanity, your humanity, and remember what is the easy thing to do, what is the quickest thing to do, and what is the right thing to do - taking action of such importance, which affects current murderers, murderers of the future, victims of the future, and victims of today and tomorrow and the victims' loved ones. Every person in Canada deserves your time.

You must not only listen, but you must hear what is being said. Haste makes waste. Life is to be preserved, not wasted or complicated by poor legislation that may have little merit if you do not have the time to consider the consequences of its effects.

In less than fifteen years will an MP or a justice minister of the day draft legislation to repeal section 742 of the Criminal Code, as it will have become redundant? Time will tell.

Bill C-45, an amendment to section 745 of the Criminal Code, and section 745 of the Criminal Code as it currently exists are an obviously redundant contradiction to section 742 of the Criminal Code.

Our laws should reflect our evolving society, and everyone in society should be protected by our laws, not by a legal procedure or red tape, which allows appeal after appeal after appeal to the murderer, which again traumatizes the victim. The murderer is still in control.

To have a law that contributes to the devaluing, debasing, and erosion of the sanctity and preciousness of life is to allow the violation of the ultimate right in our society, the right to life.

Section 745 and Bill C-45 are attempts to balance the rights of murderers with the rights of society, wherein exists the murdered victim's family. Do we no longer exist to have the same rights?

The Criminal Code and the Canadian Charter of Rights and Freedoms are not just to be applied to the concerns of the murderers. Time does not only affect the murderers' lives, but the murderers' actions affect the lives of many innocent Canadians, related or not to the victim.

Do we not have the time to consider the lives of Canadians, victims' families, and the murderers' lives in a less frivolous manner than is set out here? It seems not. It appears as if the justice committee, the justice minister, and the Prime Minister, and even some of the members of the current government, are of the same opinion: that there is something personal to be gained by limiting the time of the discussions on this subject, which is of such national importance and individual consequence.

It is irresponsible of this government to allow time that much power and control over its decisions. Less time for communication, less time for discussion, less time to murderers is a sad commentary on the quality of life we are leaning towards in Canada.

I do not wear a watch. It reminds me of Leslie's bound wrists and ankles - an addition since Leslie was murdered. Time without her is an eternity to me, her brother, and her father.

Thank you.

.1240

Ms Johanne Kaplinsky (Individual Presentation): Madam Chair and ladies and gentleman of the committee.

It's very hard to follow this. I just want to encourage you at this time to carry the discomfort you're feeling now, of this excruciating pain that has been demonstrated to you, into your deliberations and into the House of Commons when you vote on the bills before you.

I come before you today to speak on these matters, not as a paid lobbyist for some particular interest or as a legalist, but quite simply as someone who has been there.

I am a survivor of a murder victim and have been forced to endure judicial review under section 745. It would also appear that because of the law of the day, I will be required to live through that ordeal yet again, as the co-convicted has advanced his application.

On January 29, 1978, my brother, Kenneth Kaplinsky, was working as a night desk clerk at the Continental Inn in Barrie, Ontario. He was quite an ordinary, law-abiding citizen working to support himself and his young son. His life was so very ordinary, and so was his murder - the everyday, garden variety murder you read about in the papers. It was not sensational. It didn't make the national news. He was just an unlucky guy in the wrong place at the wrong time.

The Continental Inn was robbed that night of approximately $2,000. My brother was taken by car some two hours north of Barrie and shot twice in the head at point-blank range. Forensic evidence indicates that he was, in all probability, made to kneel before his killer. His decomposed body was found two months later.

Subsequently, two parolees, both with long histories of violence and weapons offences, were convicted of murder and sentenced to life imprisonment - underline the word ``imprisonment'' - with no chance of parole for 25 years - underline the words ``no chance''. One of them in particular had 29 adult convictions on his criminal record at the time of the offence.

We, Kenneth's survivors, also received life sentences and became initiated into a very exclusive club, probably more exclusive than the Canadian Club, but it's a club that I assure you no one here would ever want to join. The initiation is the death of a loved one by violence. Membership dues are extracted from us each and every day of our lives as survivors of such violence.

My family endured two months of not knowing where our loved one, Kenneth, was. Then we endured the police investigations, the public rumour mill, the media intrusions, and all the wild speculations and accusations surrounding his disappearance. Then we endured the horrific identification of his decomposed body. We somehow survived the funeral, cleaned up the remnants of his life and raised his young son.

.1245

In sum, we spent over 18 years coping with the aftermath of those two parolees' actions. We got on with our lives, or rather, we got on with picking up the pieces of our shattered lives, but never would we be able to look at the world with the same eyes again. Evil was no longer some ethereal concept; it was real and tangible. I think our profound despair came from being forced to look into the abyss, the depth of human cruelty and suffering.

In December 1993 we were once again forced to revisit that same abyss and relive what we had to go through in 1978. All our pain, of course, was resurrected by the section 745 application of one of Kenneth's murderers.

At the end of the day, after the original trial, when we walked away from the court house, we thought that the men responsible for taking Ken's life in such a cruel and brutal fashion - and make no mistake about it, it was cruel and it was brutal - were being made to pay for those actions by being required to forfeit at least 25 years of their own lives under the conditions of incarceration, removed from free society. We simply couldn't believe that release after only 15 years was even an option.

Early parole after only 15 years seemed to make no sense to us. It was a mockery of the original trial judge's sentence. We couldn't understand. Surely, the judicial system didn't have a different interpretation of the Queen's English. Did it employ some form of new math where 25 did not really equal 25, but some random number between 15 and 25? This public perception of lack of truth in sentencing serves to further erode the public's confidence in the justice system.

We, the public, feel duped by the machinations and double-speak of bureaucrats. By making available this section 745, however reworked, the Liberal government of the day is sending a message to Canadians across the country that murder in this society will be tolerated. I think that conveys a very sad statement about the value of our lives - yours and mine - as Canadian citizens. Fifteen years is not adequate denunciation for the wanton destruction of human life. My brother Kenneth was, by the volition of those convicted, sentenced to death, and that sentence for Ken was eternal and irrevocable.

We also fail to understand why three of the four fundamentals of sentencing - specifically deterrence, punishment and protection of society - are subordinated to the position of the rehabilitation of the offender.

Earlier in this hearing a defence counsel brought before you the notion of the fundamentals of sentencing. He talked about vengeance not being the same as retribution, and I agree. He made the point that neither retribution nor denunciation provides an exhaustive justification of a sentence imposed.

If we agree that denunciation is society's abhorrence of the crime, who does this law serve? The only answer I can come up with is society. The law is here to serve society. If that is the case and society wants to express its abhorrence of its most heinous crime, why do the legalists feel they're in a position to determine what is or is not appropriate justification for an imposed sentence? To me, it seems that we have a case here of the tail wagging the dog. I think lawmakers would do well to bear in mind that in a democracy it is the voting public that puts them in a position to carry out the will of the people.

.1250

I hear a lot about the faith in a jury's ability to carry out its duties. Well, having been there I have a few things to share with this committee about that faith and about the ability of a jury to carry out its duties. I submit to you that the very process itself is extremely biased in favour of the offender. In fact, the whole process is offender-driven.

Good decisions can be made only on the quality of information given to the jury. Here are some of the most fundamental problems in section 745, which Bill C-45 fails to address. Much of the evidence presented before the jury is in the form of reports, such as the parole eligibility report provided by...other reports such as our friend who was here earlier, Mr. Partington. He prepares the Correctional Services reports.

We often see conflicting psychiatric reports, psychiatric reports generated in a minimal amount of time. In the case of our judicial review, the individual had only about nine hours of total psychiatric evaluation over a period of four or five years.

What is left out, as any critical thinker will tell you, is as important as what is put into evidence. Believe me, a lot of negotiating goes on about what makes it into evidence and what doesn't. The agreed-to statement of facts is negotiated and is sanitized in pre-trial conferences between the judge, the Crown and the defence. I'll tell you, the jury has a very difficult time understanding what exactly happened.

Another problem is that crown attorneys have no specific mandate to challenge the evidence. It is conceivable that a crown attorney for whatever reason, overworked, overburdened, uninterested, has an application come before him. It appears reasonable. That crown attorney can decide to go into the hearings, ask a few perfunctory questions and call it a day. The onus is on the individual crown attorney to vigorously test the evidence. Bill C-45 doesn't address that.

It also doesn't address the fact that, as Mr. Partington mentioned, the jury can be manipulated. I want to submit to you that Correctional Services Canada staff can be manipulated by the inmates. If you wonder how that might possibly occur, I refer you to a communiqué issued by Senator Earl Hastings that was essentially a step-by-step guide on how to prepare yourself for a successful judicial review, A to Z, what to do. It was quite specific. Two years before the date get a lawyer. Start taking courses. Start modelling yourself in certain ways. Start gleaning witnesses who will come forward for you. Find God. Express remorse. It's all there - read it.

To date, sadly, no firm position has been taken by this government on the admissibility or content of victim impact statements. Much of the evidence is subjected to the discretionary interpretation of the individual justice. What seems to be missing here is the posthumous defence of the victim's right to life.

.1255

Let's look at our terminology. The offender, the applicant - terminologies we use every day. These help to sanitize and further obscure the act of murder.

Bill C-45 fails to address some fundamental problems within section 745 as it stands today. It doesn't even come close to correcting the deficiencies. It is my position that the correct thing to do is to repeal section 745 and support Mr. Nunziata's bill.

One of the reasons behind that...and I'm not going to base it on emotion. I'm not going to base it on retribution. That's not an issue. I don't know how many of you remember your university days. You probably were forced to read a book called Leviathan by Thomas Hobbes. You probably remember that. It was about society and government, and the point Hobbes tried to make was that cohesion, the tie that binds us as a society, is keeping our contracts with each other. Keeping your contracts is the first rule of civilized life or you run the risk of anarchy - as Thomas Hobbes said, the war of all against all.

When we people of Canada came together and agreed to live in harmony with each other, we did so in order to reap the mutual benefits of co-existence. In doing that we have to relinquish some of our fundamental human requirements to be satisfied by our governing body in order to promote this idea of a harmonious, mutual co-existence. One of those fundamental human needs is a need to see that justice be done, to see that those who have done us harm are punished. Yes, we need to see them punished, and we need to see them punished in such a way that befits the gravity of the offence they have done to us. It also has to sufficiently denounce to the rest of society the wrong that was done to us and our suffering.

In the interests of this mutually co-existent society, we look to our government and the laws of our society to fulfil this need. As such, we suppress our desire to take matters into our own hands. We do so with the understanding, the mutual contract, that our government will act on our behalf and serve us and society as a whole by ensuring that justice is done. By permitting section 745 to remain law, the government is failing to discharge its duty to the Canadian public and it has broken its contract with us. The result is a complete loss of confidence in and respect for the justice system and for our elected leaders, a breakdown of social cohesion, and ultimately anarchy.

I encourage you, Madam Chair and ladies and gentlemen of this committee, to stand and discharge your duties to the Canadian public with honour. Keep your contract with us. We have given you our side of the bargain. That's all we ask in return. Thank you.

The Chair: Mrs. de Villiers, are you next?

Ms Priscilla de Villiers (President, Canadians Against Violence Everywhere Advocating its Termination): Thank you for giving me this opportunity to appear before you.

.1300

I'm here as president of CAVEAT, which is a national grassroots, not-for-profit charitable organization. All but three of our members are entirely voluntary, as I am. We are funded entirely by small donations from the Canadian public. We have not asked for nor certainly been offered anything smacking of official grants or moneys, be it from any level of government. Neither are we supported by any major corporation. They're frightened of the politics of this. We get small amounts. We've yet to find that support.

To give you an idea of the enormous support in this country, not just the walking wounded, as we are, but everyday Canadians donate their skills, time, efforts and extraordinary initiative in pushing forward an agenda that I might tell you is only a fraction of what we do, because we, the people of Canada, the ordinary working people, have taken it on ourselves to start educating, to start assisting youth to deal with the realities in their schools, to start opening up a dialogue.

Tragically, the only credential I have to appear here is that frightful credential of my daughter's murder. That's why I'm here, not because I have any special qualities or you'd really want to hear me. That's why the silent majority, the people who speak to us on a daily basis from across this country and support us, keep us going. Can you imagine how difficult it is to run what happened inadvertently, a national organization?

I'm tired of people talking in editorials in our major newspapers of small, vocal, focus groups. Tragically I've been put in a position, as some others of us have, by a dreadful tragedy, not because we have something to say to our government, which does not appear to be hearing. That is why so many people spend so much time, energy, effort, and what little money they have in supporting us.

People say to me, aren't you tired? Of course, I am. Do I like doing what I do? I hate it, but how can I turn around to those people who've supported some random words by a bereaved mother and say, I'm tired and want to stop now?

I am appalled at the way this has been presented to the people of this country. I'm appalled, not just because of section 745 or any other section of the Criminal Code. This is a travesty of a parliamentary system.

We've had a bill asking for discussion of this on the books for 18 months. We got an official communiqué on Thursday, I think. I first read this bill on the airplane to Saskatchewan, and Steve Sullivan and I had to come back in the middle of last night to beg for five minutes of time to make our little statement because we are the few people here who do not benefit from the system. Shame!

Shame on this reluctant concession to what is becoming very quickly a serious election issue. Shame on you that you have not taken into account the words of ordinary Canadians who say, we are bothered by this; we are concerned.

Give it the consideration it deserves. If you then in your wisdom as a governing party decide not to support it, fine, that's your right. But to have this ramshackle excuse for an appearance, just to say that we actually appeared here, is a shame on this entire process.

.1305

In addition, who precipitated this? Certainly, not the concerns of the bereaved; not the concerns of communities who've had too much, who are literally faltering under this terrible violence. Whether it's more or less, or overreported or underreported is of no account. The people in this country and this day are faltering and tottering in many areas.

Take Quebec. I've just come back. The massacre at the Polytechnique is yesterday, the scars are so deep. Marc Lépine figures in this, and we disregard it. It's worthy of decent discussion.

Who has precipitated this? Clifford Olson. Most of his life he's been tormenting and hurting and violating children. He's been against that very cornerstone of the charter that gives us life, security and liberty of person and sanctity of life, of protection of our children. How has he whiled away his 15 years in prison? By tormenting the families of those victims, entertaining them with descriptions of what he did. He's played Corrections Canada like a fiddle, until finally he's not allowed to bring any more lawsuits.

Now because his imminent application for parole - another way of using the media and enjoying himself - is becoming a serious election issue, we have this dreadful travesty.

Having said that, my initial reaction on seeing the communiqués was, let's take it. It's better half a loaf than no bread, and Jonathon Yeo, who had an 11-year history of predatory violence against women and who in fact qualifies in that little category of multiple murderers, saved us, my family, my friends, my community from going through a section 745 hearing by shooting himself.

Then I thought back to all the section 745 hearings I've attended - how many have you attended? - all the victims' impact statements I've had to assist people to make, all the section 745 hearings we've asked somebody from CAVEAT to represent the family at because they could not go through it again, and I thought, no, and I read this bill. I'll give you a detailed analysis.

May I just say that what was conceived in an intellectual exercise in Parliament 20-odd years ago seemed to make sense, given the attitudes of the day. Let me say that 15 years is three political lifetimes, at least. Why is the Canadian public not up in arms? People say, well, they didn't object then. It's because it was an intellectual point. It has not been seen working, and this growing volume of noise is because we are now seeing it and we are going to see it, I think, almost once a week until the year 2000.

Do not think this is just a clamour from a few tired people like us.

It's interesting to look back at all the words that were written about section 745. Reading through the Hansard, I must say Madame Pierrette Venne's comments typified exactly what most people feel. Her rationale and what she said in Hansard on October 19, 1994 in fact is the debate. I find her conclusions curious, because she makes a very strong point for reconsidering this entire matter, but her analysis of the situation is masterful.

.1310

I know you're very late and you're hungry, so unless you want me to, I won't read through her analysis of section 745, as you can find it in Hansard. I'll have it photocopied for you.

Suffice to say that I think she expresses, most succinctly, the major concerns of everyday people about what is wrong with this section, in terms of philosophy and in terms of fitting into criminal law as a whole.

That said, I'll go to the analysis of the goal itself, and this is what made me realize that we will be doing a grave disservice to the Canadian people if we allow this hastily conceived band-aid pacifier to be given to us. It will successfully shelve this for another 20-odd years until the sheer weight of tragedy and the outrage in the community will once more push it to the fore.

Why should we wait that long? Why should we not have that debate now? Why should it not be a decent and considered debate? There is a huge number of people trying to support a system that has been created and that in fact is supporting them in many cases. Why are we not asking for a detailed analysis of where this type of section fits in our criminal justice system? Does it fit in Bill C-45, which is corrections and parole, or would it be better dealt with in other areas of justice?

I have some suggestions here. You have to understand that they were very hastily done. Give me another opportunity and I'll really tell you about it.

I must apologize for the fact that you don't have photocopies. You will get them straight away after this.

Briefly, the purpose of section 745 as it now stands is threefold. One, it is to provide a degree of help for rehabilitation; two, it is to protect prison guards; and three, it is to recognize that in some circumstances the public interest no longer demands the most severe sentence in Canadian law.

At the time of its introduction in 1976, very little was said in the House of Commons, as most of the debate revolved around the abolition of capital punishment. As I've said, it was an intellectual idea, not pressing. Next to nothing was said in the next fifteen years until the section came into operation in recent years.

The section was primarily enacted to maintain discipline and order in the penitentiary by giving lifers some hope and some reason to behave. Clearly institutional security is important, but this must be addressed in correction law and not by securing the sentence process, that is, not by allowing an after-the-fact modification of a fit and proper sentence.

Parliament was willing to trade off the integrity of the sentencing process, and that is what's at stake. It's known as truth in sentencing, the integrity of sentencing for administrative and institutional management, for corrections. That is, by allowing an after-the-fact modification of a fit and proper sentence handed down by a court of law and a jury.... As much as most people want to ensure that our prison guards work in a safe environment, it's doubtful that most people are willing to pay the stipulated price of tampering with sentencing.

There are other ways to protect guards without undermining public confidence in the sentencing process. This is a modern piece of legislation in which administrative or bureaucratic demands are overriding matters of principle. I would say that this is why this particular section is the focus of so much concern. It could best be characterized in a very pleasant way as being misguided.

.1315

Parliament has simply accepted the underlying purposes of this provision without any serious reconsideration of its value and its merit. The provision undercuts the operation of specific and general deterrents and, more importantly, it undercuts the operation of retributive sentencing - which, like it or not, is what our justice system is - in which the court awards a sentence that is proportionate to the harm created by the offender.

The Supreme Court of Canada in Swietlinski in 1994 had the opportunity to review the current section 745 and confirmed that this provision has little to do with sentencing principles. Chief Justice Lamer said:

Therefore Justice Lamer confirms that this provision has very little to do with the governing principles of sentencing. It's an accommodation for offenders who are subject to long-term imprisonment. In the normal course of sentencing, current efforts - that is, if made after the commission of an offence by the offender to rehabilitate himself or herself - are considered but not given much weight. That's in the initial court.

Appellate courts have consistently ruled that judges cannot delay sentencing to see whether the offender can put his life back in order before being sentenced. That is clearly stated in all our appellate decisions.

Sentencing is about constructing an appropriate official response to past occurrences, and courthouse conversions - that is, last-minute changes in attitude and action by the offender - should not detract from the primary expertise of constructing a sentence, which is responsive to the past reactions of the offender. According to the higher courts of our country, the two are mutually exclusive.

Furthermore, Mr. Justice Major, writing for three other judges in the same case, noted that while some sentencing principles relating to rehabilitation and public protection will inevitably enter the jurors' minds as they consider character, conduct, the nature of the offence, and sentencing principles - for example, rehabilitation, deterrence, denunciation - these should not play any significant role at the hearing. According to the appellate court, it's not allowed to.

Parliament has not seen fit to incorporate traditional principles of sentencing into section 745, and it would be wrong for this court to read any such principles into the section. That is Mr. Justice Major, writing for three other judges in the same case, Swietlinski.

Therefore it is clear that this provision is not a sentencing provision. It is a provision that addressed bureaucratic policies and priorities; in other words, how is Corrections going to manage?

Accordingly, the public has been short-changed, because they thought they were acquiring a sentencing reform package in 1976 - I won't quote, but if you go back in Hansard that's how it was presented - that would serve as an appropriate and adequate substitute for capital punishment - if you read Hansard, that was the discussion - whereas in fact it became quite apparent 15 years later that they received a substitute, which is diluted by consideration of administrative needs.

An overview of proposed legislation: One, the phrase ``whether or not proceedings were commenced'' in section 745 is an attempt to ensure that the jurisprudence relating to impaired driving is not brought into this issue. For impaired driving the offender is only considered to be a repeat offender.

.1320

For the purposes of the mandatory minimum sentences for second- and third-time offenders, if the offender's first conviction was registered before he or she committed the second offence in this way, the offender is only treated as a repeat offender if he's been warned in court earlier with the entering of a conviction. We run into this problem of who is a multiple killer.

This clause was inserted to ensure that an individual who commits a series of murders before being apprehended is not allowed to argue, based on the Skolnick principle for sentencing impaired drivers, which is what we're comparing it to, that he should be treated as a first offender and should thus be allowed to seek judicial review for parole eligibility. It's all a matter of definition.

The net result of this clause is to ensure that an offender who has killed more than one person is disentitled to review, even if all or some of the killings took place before this offender had been caught and condemned in a court of law. Do we like that? We don't have time to discuss it.

My second comment is with respect to the relevant factors for the jury to consider. The new provisions replicate the earlier version, section 745, with two additions. Beyond looking at the nature of the crime and the character and the conduct of the offender post-offence, the new provision tells the jury to look at the input information and ``any other matters''.

Again, if we go back to Swietlinski, which is a Supreme Court decision on a section 745 hearing, the Supreme Court of Canada emphasized that this is a highly discretionary decision-making process with no one factor being dispositive. In other words, no one factor is essential or, I suppose, mandatory. Lawyers use dispositive, but I don't know the term for that.

This is why we've made the jury and not the judge the trier of fact. We believe the jury will act as the conscience of the community, and this concept cannot be reduced to a few determined and inflexible factors. We need to discuss that point.

Third, the screening standard of ``reasonable chance of success'' is absurd. The standard tracks the standard for preliminary hearing committals, and this standard is confusing. The reason judicial screening is absurd is that subsection 745.1(3) directs the judge, in performing the screening function, to consider the same factors the jury has to consider. The listed factors for the jury to consider were left intentionally vague, and the decision-making process is highly discretionary in nature. There are very vague guidelines, if any at all.

If this is so, how can a judge assess where there's a ``reasonable chance of success'', which is what this amendment proposes, with respect to highly discretionary and subjective factors? There's no guidance. Put another way, how can a single judge conclude whether ``the conscience of the community'' will lead to a successful or failing result? He can't.

The judicial screening provisions are the most inane part of this package. First, you cannot screen a discretionary process. Second, if a judge has to screen out clearly undeserving applicants, does this not suggest that we do not trust the jury to deny relief for patently undeserving applicants? Third, Parliament has built an appellate review of the screening process. We have another review.

Thus, what has been constructed has become a costly process that can only serve to delay the process and work to the benefit of the lawyers, yet again to great detriment to the community, because you are designed to represent these applicants.

There's not appeal from the jury's decision because it's hard to second-guess or review a highly discretionary decision-making process. That's why you don't review the jury. If that is the case, then why does Parliament, through the proposed amendments, believe the judicial review of the preliminary screening process will be any more helpful or meaningful? It doesn't make sense.

.1325

In conclusion, judicial screening is costly, time consuming, and ineffective. It does not add anything to the process and only clouds the issue by allowing Parliament to claim that they've done everything to ensure a fair process.

However, the question of fair process must be secondary to the more important question of whether the objective served by the legislation is sensible and consistent with the public interest. All the fair process in the world cannot convert a bad decision into a good decision, and, I might add, adds enormously to the cost incurred by the provinces in putting in this extra step in bureaucracy. I haven't addressed this very much.

Victim input is not entirely contingent upon the action of the Attorney General. As with the traditional victim impact statements in section 735, there is no designated statutory procedure for the introduction of victim impact statements, and presumably it usually goes in at the request of the Crown. However, this does not necessarily mean that an indifferent Crown can thwart the introduction of the victim impact statement as the victim would ask the court for leave to submit a statement.

It's clear that victim impact statements can be filed under section 745 through application. The statement need not be a stale and ancient statement but can also involve ``information provided at the time of the hearing''. This is proposed. Therefore, there is no reason to believe that with a cooperative Crown it will be impossible for victims to address the court of current concerns and reservations. So that is a step forward.

However, how will victims know this hearing is taking place? There's no need for the applicant to serve notice on the victim. There are no provisions in the so-called victims' bill of rights or under CCRA for the Crown to notify the victim that this hearing will take place. That has not been addressed. So although we have a step forward, it's not guaranteed.

It must also be noted that under the proposed amendments the jury shall consider the victim impact statements if they have been collected and put in by the Crown. Under the current law, as articulated in case law, the judge may consider this information if it's been collected and introduced. Thus the victim impact statements are on a more solid foundation under the amendments. This is a good part of it, because they're presumptive admissible, whereas under the current law the Crown would have to convince the judge to admit these statements, and they've not been very successful generally. So this is what gave me pause, but that is a step forward.

In conclusion, the proposed provision does allow for the introduction of current information pertaining to the victim, but there's no mechanism to ensure that a victim will be notified of the hearing and requested to provide a statement if so desired.

Keep in mind that the Supreme Court of Canada in Swietlinski decided that victim impact statements are admissible on hearing, but that the judge should be cautious about admitting statements. It doesn't address that. The court held that more often than not victims' statements were related to sentencing considerations, which are not relevant on this type of application because it's not a sentencing provision.

The new provision does not address the stated reluctance of the Supreme Court of Canada to admit this type of information. So it may be that the general reference to victim impact statements, even with the introduction of the mandate, will do little to facilitate and encourage the role of the victims. This must be addressed.

We're unclear on what happens if the jury cannot reach a two-third's majority on the issue of the quantum of reduction. What happens? Based on current principles relating to jury deliberations, a judge would gently exhort - I love that - the jury to reach a two-third's majority conclusion. Failing this, the judge enters a mistrial and empanels a new jury, so this could mean a whole new trial revisiting this whole thing. A huge new pot of bureaucracy is being created. There appears to be a gap in the legislation concerning the failure to reach a conclusion on the quantum of reduction.

The transaction procedures are confusing. Transitional provision number five says that the victim impact statements can only be introduced with respect to applications concerning crimes committed after the passage of this legislation.

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Keep in mind that even with crimes committed before the passage of this legislation in accordance with the principles in Swietlinksi, the common-law practice does not provide a strong basis for admission of the statements as does the proposed amendments. Why then is the government proposing a transitional provision with respect to victim impact statements?

The general rule is that the changes in evidentiary or procedural rules have retrospective application. If we're changing it, we have to change it. We're not doing that here.

Changes in substantive entitlement to judicial review cannot apply retrospectively. However, the rules of evidence that govern these hearings can be charged and be made to apply retrospectively.

To give one example, under the old rape laws there were requirements relating to corroboration of the complainant's accusation. That requirement has been repealed and the courts have consistently held that for offenders being tried in 1996 for offences that took place when the old law was in effect, the new evidentiary principles are to be applied. We haven't seen the provision in this.

Thus, a 1996 trial for a 1966 indecent assault will not require corroborative evidence even though, had the offender been on trial in 1966, there would have been a requirement of corroboration. So the 1996 rules overrule 1966, thirty years later.

There are no appeals from a decision made by a jury under these provisions. The Supreme Court of Canada has noted that:

Parliament has now proposed that an appeal can be taken from the screening decision of the presiding judge. Presumably this appeal right - and remember, we discussed that earlier because it's a discretionary decision - was granted to ensure that one single judge cannot act arbitrarily to thwart meritorious applications of it. I'll bet every single one can be appealed because of the discretionary nature of the decision - more appeals.

The judge is not a gatekeeper, and Parliament quite sensibly has included appellate review to ensure that one person cannot prevent an applicant from making his or her claim in front of a jury of his or her peers. There's no problem with the appellate review of the decision made by a single judge.

Without this review an applicant could end up in legal limbo if a judge erroneously or arbitrarily prevents the jury hearing from taking place. However, go back to the third comment. The screening process is a waste of time, a waste of money, and should be reconsidered in the light of the whole screening process. That's very important.

If Parliament decides to retain the screening process, then it should approve of some form of appellate review of the process. We have to look at this.

Pursuant to subsection 745.(2), the following persons would not be entitled to judicial review, and this is extremely upsetting. Serial killers, that is those who kill more than one person at different times, are not included. Mass murderers, that is those who kill more than one person in the same transactional incident and killers who intended only to kill one person but ended up killing more than one - these are the only three included in this proposed amendment. So if you inadvertently are trying to shoot one police officer and you manage to shoot two, you're involved in this.

In accordance with the transitional provisions, the prohibition on judicial review only applies in the above three cases if one of the murders takes place after the coming into force of these provisions. Therefore, killers intending to kill only one individual, serial killers, or mass murderers, who are currently in prison, who are currently on trial, will still receive judicial review.

The three types of murderers who will be excluded from seeking judicial review comprise a minute proportion of the population. An estimated 1.3% of all murderers in Canada will lose the right to seek judicial review.

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The largest category will be the mass murderer. This does not mean that we have and will have - and hopefully we will not - many cases like Marc Lepine. This category will include domestic murders in which the killer murders a spouse and a child, etc.

There appears to be a concern that there are many offenders who have killed one victim who are not deserving of the opportunity to seek judicial review. Absolutely there's concern.

The current category of excluded offenders is underinclusive. Canada does not have a lengthy history of serial killings and mass murderers, but we have had our fair share of brutal killings of a single victim.

I'd like to place this on the record, please. These sorts of statistics that are heavily quoted wherever we go and sent out at the drop of a hat do not begin to reflect the number of victims, the number of actual assaults that are included in that all-encompassing sentence.

Debbie will bear me out. I think Bernardo had nine convictions in each murder application. You see it as one murder. That doesn't look so terrible, does it? Murderers...6, 93, 23....

They don't begin to say what in fact they were sentenced for. It's not reflected. This is not sufficient. I have a whole ream of them that are real sentencings and convictions, convictions at time of sentencing. When you see that, the brutality and hopefully the odd picture will give you some idea of this glib little number that you see here.

It doesn't begin to reflect that. It certainly doesn't reflect the long-term criminal history that many of these people have. They may not have murdered yet or it might have been a long time ago, but there are rapes, beatings, arson and armed robberies in many cases, and I feel that is a worthy consideration. It is not given out in these statistics and therefore the statistics are ameliorated and softened and sanitized until you want to weep.

There's no doubt that creating an excluded offender category based upon the number of victims is a clear and certain category of easy application. It's the easy one. We can't discuss that.

But what has been granted in certainty has been a loss in coherence. It may be difficult to create a certain and clear definition of what type of single-victim murderers should be included in the category of excluded offenders. However, in other contexts Parliament has been able to define single incidents - and I hate that word incidents. This is not an incident. That word is used all the time and I'd like to place this on the record: it's offensive in the extreme. It's a brutal, inhumane, tragic and disgusting killing. It is not an incident. I find I slip into this too. It's ridiculous.

Parliament has been able to define single incidents with sufficient clarity to trigger certain draconian measures. For example, in the dangerous offender applications it's most common to use the provisions for repetitive conduct. However, Parliament has contemplated using the dangerous offender designation for single tragedies.

Section 753 defines as a trigger for dangerous offender designation:

We must make provision for single-murder killers who have demonstrated such flagrant disregard for human life. That's who we're talking about. They should receive a non-adjustable life sentence.

In creating section 745 to exclude some murderers from the scope of judicial review, Parliament is in effect saying that some murders are so heinous that the offender should not be granted any future accommodation, even if these offenders have changed dramatically while in prison.

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So we're saying that. We're making a statement in this amendment. We're actually at last saying that. We're acknowledging that fact, but Parliament cannot be saying that these multiple-victim murderers will change their attitudes as much as a single-victim murderer will. There's no common sense in that.

If accommodation can justifiably be made - and it's being suggested here - then surely this could apply to single-victim murderers, and it must. The essential defining feature of the excluded murder is that it ``shocks the conscience of the community''. That's the quote. Clearly this may be the case with a single-victim murderer as well as with the rarer category of multiple murder offences.

Quite frankly, it is so difficult to get a first degree murder conviction. It's easier to go through the eye of a needle than to get a first degree murder conviction. It took a jury seven and a half hours to decide that Bernardo deserved first degree. This is not easy. Most of these are plea bargained before they even get to court. We are not dealing with anybody but really heinous criminals. Clearly, this may be the case with single-victim murderers as well as the rarer category of multiple-victim murders.

As a final note, a concern with this legislation is that it deals solely with murder cases. There are numerous other crimes short of murder that trigger a public concern, that shock the conscience of a community, and, I might tell you, that destroy life in a far worse way than the act of killing in fact.

This is expressed by one of my daughter's friends when he wrote, three years after the event, the first time he'd been able to bring himself to speak about what had happened.... He said for the first five or six days we hoped that Nina was mercifully alive and then we hoped she was at least mercifully dead.

Talk to the Scarborough rape victims. They're well-known. They're front and centre. Multiply that by untold hundreds and maybe thousands. Talk to the 11-year-old child who will never have use of his sphincter again. He cannot ever control his bowels because of anal rape. Say to yourself, ``Can you really quantify?''

I'm begging of you and begging of this government to start discussing these issues in a true and considered fashion. Do not denigrate this issue.

There are numerous other crimes short of murder that trigger public concern and shock the conscience of a community. Parliament should not only be tinkering with section 745 as it applies to murders; it must start developing a coherent strategy for dealing with all forms of predatory crime that attract long terms of incarceration. In some ways it's bizarre that we have an elaborate regime for judicial review of parole eligibility for murder cases, whereas serious sexual assault and predatory behaviour with respect to children are left to the vagaries of the ordinary parole process. Where are our values?

In appearing before this committee I've once again had to face an extraordinary moral dilemma. I grew up in the late 1960s and 1970s. My values are reflected in much of the thinking of that time. It was so much simpler in South Africa. I was dealing with political prisoners, with detention without trial, with people disappearing without a trace. It was much easier.

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When I came to this country in 1979, I wasn't confronted with it by those political realities. In fact, nobody wanted to discuss politics. It was not done at a dinner party. It made people uncomfortable. I slipped into that wonderful cocoon that Canada was and is, that humanitarian, compassionate, and loving country that we all want to live in. It soothed my soul, quite frankly.

But five years ago I was forced to start looking at the greater reality that those noble humanitarian ideals, of the quality of mercy is not strained and turn the other cheek and so on, are founded on that marvellous intellectual and philosophical principle of the nobility of man. In the last nearly five years I've had to face the fact that relatively few people are feeding off that nobility. They're using it as a shield for the most cruel, brutal, and inhumane conduct that has ever been visited on people, that as a war crime is recognized as a heinous crime. The World Court has supported this.

Everybody is said to be able to be ``rehabilitated''. It's a wonderful principle. It's a much easier principle.

As I sit here, I have a great deal of difficulty in saying that some people have to be locked away forever. But I've had a look through the glass and I've had to confront reality and the enormous damage that's being done to this country in 1996.

I ask you, please, to give this issue the consideration it deserves. We have to have a line that we draw at some point. We have to at one point reflect that we, the people who are compassionate and who fall over backwards to accommodate people, have to come to an end at some point.

I suggest that those whom we are dealing with in this section sadly represent that small group of people who have crossed the line and who continue to endanger the safety and the quality of life of citizens in Canada.

I know you're hungry and tired. Thank you very much for your patience.

The Chair: Thank you, Mrs. de Villiers.

Mr. Sullivan.

Mr. Steve Sullivan (Director of Research, Canadian Resource Centre for Victims of Crime): I'll keep my comments short, for a couple of reasons. Firstly, you have my brief and I don't think it is necessary to go through it in detail. Secondly, I don't think there's anything that I can say to you today that will add to what you've already heard.

You can bring all the lawyers, all the professionals, and all the philosophers and professors before you and you will not hear better reasons to repeal this section than you've heard today from these people.

I sat with them in the House of Commons on December 12, 1994, as I sit here today, as137 members of Parliament voted in principle to support Mr. Nunziata's private member's bill to repeal this section. That was over a year and a half ago. We finally have got here to speak to the bill, but it is only because the government has finally chosen to address the same issue.

Frankly, Canadians deserve a better system than one that will debate and pass laws in a matter of days. These people deserve better than to have their voices heard in a matter of minutes, checking their watches to make sure that they haven't gone over the time limit. This committee should be ashamed of itself, and so should this government, for the way in which it has treated these people.

Do we support the repeal of section 745? Yes, we do - wholeheartedly. Do we support the passage of Bill C-45? Yes, we do. I'll tell you why. I believe that with all its errors, and we've pointed out some in our brief, Bill C-45 will mean that fewer people have to go through the hell of a judicial review hearing. That's good enough for me right now. If it means Clifford Olson will not go centre stage and put my friends through hell, I will support Bill C-45 and I call on you to do the same.

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I will leave you with this: we will not finish with this issue. Bill C-45 is a first step in the ultimate repeal of this section. We will be back in the fall, during the next election. It is our ultimate goal to repeal the section. This is a first step and that's all it is. It's not good enough.

I don't think there's much more for me to say other than that these are the people you need to be listening to. They are more affected by this section of the Criminal Code than anyone you're ever going to hear from in these two days. They are the people who represent the interests of the Canadians you should represent before you represent your government.

I'll leave it at that. Thank you, Madam Chair.

The Chair: Thank you very much, all of you.

Colleagues, I purposely did not interfere with or interrupt anyone when they were speaking. I find it hard to believe that, as Mr. Sullivan said, there's any more we could elicit from some very articulate and important witnesses. Because we heard without interruption what you had to say, there will not be any questions at this time, but I want to thank you very much. If you think you've come here and not affected anyone, you'd be sorely mistaken. Thank you.

We have some other business to attend to.

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The Chair: We've circulated the fourth report of the steering committee. Recommendations have been made with respect to travel on the Young Offenders Act. For the week of September 22 to September 27 we will be travelling in the province of Quebec and also in Iqaluit in the eastern Arctic.

I think you'll recall that one of the problems with going north and trying to do it all at once is that you have to fly to Montreal to go to Iqaluit, you have to go to Edmonton to get to Yellowknife, and you have to go to Vancouver to get to Whitehorse. You can't just fly across, unless someone wants to give us a Challenger. I don't think that's going to happen. That's why we've scheduled it this way.

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You'll see we've also scheduled Manitoba, Saskatchewan, and Yellowknife together, but we haven't set dates for those, because we're anticipating the gun regulations in the fall. So to fix ourselves into dates was problematic, because I think we'll have only thirty days to do the gun regulations when they come.

So I'm looking for a motion, if everyone is in agreement, to approve the schedule and the budgets, which again are maximums.

Ms Torsney: I so move.

Mr. Gallaway: I second the motion.

Motion agreed to

The Chair: Great.

The second and third items on this report relate to Bill C-17, Bill C-27, and Bill C-25.

We're suggesting we have senior officials appear before the committee during the first week of September. That's the first week we're back. We'll get the officials out of the way on those bills and get those bills moving. They're all government bills. Is there any problem with that?

The omnibus - female genital mutilation, child prostitution - is Bill C-27, and Bill C-25 is the regulations bill, which we may want to consider striking a subcommittee for, but I think we can talk about that in the fall.

The third item, private members' bills. Bill C-217 is Mrs. Venne's bill. In keeping with our new policy, it would be appropriate for her to appear that first week, just to set the stage for us, so we can then slot it in at some point. Any problem with that? Okay.

That resolves the fourth report of the steering committee.

We've had a request from the Attorney General of Ontario to appear this afternoon. If you'll bear with me, I'll set out my view, to see what people think. He's asked to appear on this particular bill.

In the past, attorneys general have appeared before the committee, for example on the gun bill, and we have a policy of having them appear on the Young Offenders Act. I think the rationale there, frankly, is that with the gun bill and with the Young Offenders Act, if we recommend amendments to it, there's a direct cost to the various provincial budgets and it would be wrong of us not to consider that and not to take that into consideration. I think that's the fundamental difference between that and this request here.

I also hasten to point out that the Attorney General of Ontario, as any other attorney general in the country, already has several fora in which he can air his views. It's similar to an MPP, as we had in Scarborough, coming and airing views on federal legislation. We allowed that, and I think we said at the time if there had been someone else to fill the slot he wouldn't have been there, but we had to fill that time in any event.

At different times there are five or six members of this committee who are from the province of Ontario and who were elected by the people of Ontario to represent their interests in federal legislation, one of whom is the chair of the committee. The Minister of Justice and the Solicitor General, who sponsored the bill, are both from the province of Ontario, and they are elected in the province of Ontario. There's even one person participating who is effectively an opposition member on this bill and who is also from the GTA, from the province of Ontario, Mr. Nunziata. Not only that, but many of the witnesses on both sides, and most of them opposing Bill C-45, have come from the province of Ontario.

So I am suggesting we not hear from him. If we do hear from him, we have to bump somebody else or we have to short-change people we've promised an hour to, and it doesn't seem to me that's necessary here. I also point out that the Attorney General of Ontario has other ways he can express himself on this. He has a first ministers' meeting this week. He speaks directly with the Attorney General of Canada, Mr. Rock, regularly. His bureaucrats talk to federal bureaucrats. He shares the same constituents as many people on this committee.

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So it seems to me it's not on. I'm not inclined to demand that somebody else share their space with the Attorney General of Ontario. But that's my view.

Do you have a view, Mr. de Savoye?

Mr. de Savoye (Portneuf): Why not the Attorney General from Quebec?

The Chair: That's right.

Mr. de Savoye: I think you've made your point.

Mr. Ramsay: I can't agree. Inasmuch as the provinces are responsible for administering the legislation that will be passed by this, or at least they have some degree of responsibility, why not hear him? One of the reasons we agreed to go out of our way to assist the passage of the bill was that witnesses would be heard. If the Attorney General from Quebec wants to be heard, if he were asked instead of the Attorney General, would it make any difference?

Ms Torsney: No.

Mr. Ramsay: Then the fact that he's not asking shouldn't make any difference. If he wanted to appear, then he'd be asking. It's obvious he doesn't want to appear, but the Attorney General from Ontario wants to appear. What does he have to say? I'd like to hear what he has to say.

Madam Chair, is he going to be allowed to submit a brief?

The Chair: I think that's clear.

Mr. Ramsay: Then it's just a matter of time that's the problem.

The Chair: Yes. I haven't heard from my colleagues on it, but I'm suggesting if he wants to send us a note or prepare a written brief, that's fine and we'll take it, but we have witnesses we need to hear from.

Mr. Ramsay: So it's just a matter of time?

The Chair: Yes, and we just don't have the time.

Ms Torsney: A question to Mr. Ramsay. How does this directly impact on the Attorney General of Ontario?

Mr. Ramsay: Obviously it impacts on the provinces that have to administer the law.

Ms Torsney: It's a lesser cost to them.

Mr. Ramsay: Do they not appear before the chief justice of the province? Does it not incur costs for the province?

Ms Torsney: No, it would incur less cost. If we're removing the ability of a number of people to go for a 745, then there would be fewer costs to the province, not additional costs.

Mr. Ramsay: No. Where does the cost of a section 745 application come from?

Ms Torsney: Again, we're removing 745 applications.

Mr. Ramsay: That's not the question and that's not the issue.

Ms Torsney: I guess we should just put it to a vote.

The Chair: I'll ask that. All those in favour of having the Attorney General of Ontario appear before the committee?

Mr. Ramsay: Based on his request.

The Chair: Yes.

Mr. Ramsay: Yes, I agree.

The Chair: All those opposed?

He's not coming. We will invite him to present a written brief.

The meeting is adjourned.

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