EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 18, 1996

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[English]

The Chair: This afternoon we have, from the Canadian Bar Association, John Conroy, who is chair of the committee on imprisonment and release; Alan Manson, who is with the subcommittee on imprisonment and release; and Joan Bercovitch, who is the senior director of legal and governmental affairs. Welcome.

Please give us your brief, and then we will ask some questions.

Ms Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): Thank you for the opportunity to present our submissions to you today, ladies and gentlemen.

As you know, the Canadian Bar Association is a national association of lawyers representing lawyers, judges, law students, and law professors from across Canada. Central to the CBA's mandate is improvement in the law and administration of justice. We believe that our submissions to you this afternoon are consistent with that objective.

The brief was developed by our national section on criminal justice and its subcommittee on imprisonment and release, of which both Mr. Conroy and Professor Manson are members.Mr. Conroy is the chair. We apologize for not having provided you with the brief at an earlier date, but given the haste with which the hearings were convened, that was impractical for us to do and we apologize for that inconvenience.

John Conroy is chair of the CBA's committee on imprisonment and release. He's the author of a book entitled Canadian Prison Law. He is the most experienced prison lawyer in Canada, specializing in post-sentencing and imprisonment and release. He has been counsel to six section 745 reviews in B.C. His reputation is stellar in such reviews.

Professor Manson is a member of the subcommittee on imprisonment and release, and a professor of law at Queen's University. He's an author and associate editor of Criminal Reports. He has been counsel on two section 745 reviews and developed and argued the constitutional challenges in the 1988 Vaillancourt section 745 review.

The brief will be presented by Mr. Conroy and Mr. Manson. They will both accept your questions. Thank you.

Mr. John Conroy (Chair, Committee on Imprisonment and Release, Canadian Bar Association): Thank you. The brief is fairly brief so I'm not going to take you through it, although I understand you probably haven't had a chance to read it. I'm going to touch on some points, but I will leave it to Alan to deal with the specific recommendations.

I want to talk to you generally and practically, having done six of these types of applications. The first question I have to ask is why we are doing this and what's the rush. We got a bill last week, and suddenly had to race to put things together for you to come down here to make a presentation.

I read in the media that the minister said we're not doing this because of Mr. Olson. He was the only reason I knew of why there was a rush before. So if we're not doing it because of him, what is the rush?

The backgrounder says, ``enhanced community safety so only the most deserving can apply''. Let me take you through some practical situations. Having done six of these in British Columbia, I can tell you that Clifford Olson doesn't have a snowball's chance in hell of getting his application through. It's just ridiculous to think he would.

It's ridiculous to think that any informed jury will give him the time of day. Even if he did miraculously get his application through, it's ridiculous to think a parole board would find that he meets the criteria. The man is still in a super-maximum security institution. He hasn't even made it into a maximum, never mind a medium or minimum security institution.

You must understand that when someone contacts me, usually by telephone because he or she can't come to see me, I'm asked to evaluate his or her application. As a lawyer I don't want to take a losing application. I want to take an application that I think has merit, so I do a vetting of that application.

The first most important factor is whether the person has done 15 years. A person can't even apply until he or she has done 15 years, and usually it takes a year to get before the jury. A lot depends upon all of the preliminary processes that currently exist.

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I've had many people call me who are still in either a special handling unit, a psychiatric centre or in maximum. I tell them that if they apply, the jury will tell them not to come back, and they'll be stuck at life 25. I say, you should concentrate your efforts and energy on improving yourself and changing yourself. If you don't do that, forget it. If you are going to make a change, no matter what you've done, get yourself to the position where you're either in medium about to go to minimum, or you can stand up and say, ``If I were in front of the parole board, they might start me on something''. If you're not in that situation, you should never apply.

If you look at the statistics from the minister's fact sheet, you'll see that 74 have applied and 60% of those who are eligible haven't applied. So this type of screening process is working in the sense that most people - other than the odd bizarre one, if Mr. Olson applies - who are sensible, look at that, take advice and don't apply. So that's the first thing. It's very important to remember that you can be told to go away and not come back.

In British Columbia - and it's similar in most other provinces - we first work out things to do with the nature of the offence, because the nature of the offence has to be before that jury. Sometimes we have to go to a court of appeal decision or back to transcripts that existed 15 to 16 years ago to try to bring back sufficient facts, so the jury is fully informed of the facts of the offence.

Secondly, we have to look at the character of the offender. That always involves Correctional Services Canada preparing a parole eligibility report that details the whole history of the offender and attaches to it all psychiatric and psychological reports that have ever been prepared on the person.

It has a policy of not making a recommendation, but the full story about the individual is there. So you can look at character in the beginning and character at the time of the application and, most importantly, the conduct of the person serving the sentence. That's a very important factor. If you have a person who is a multiple killer and has done nothing, you obviously won't advise him or her to even apply. But if you have a multiple killer who did something very bad but has made a significant change, then that should be reflected in the conduct, since incarceration is a major factor for the jury to look at.

The processes work very well. Again, if you go to the fact sheet that was supplied, you'll see that after we've had this preliminary hearing to make sure all of the criteria are in place in terms of eligibility, and worked out admissible evidence in the parole eligibility report, the jury gets to make that decision. It can make recommendations in relation to second degree, but in relation to first degree it makes that decision. This is a unique section of the Criminal Code. It is the only section of the Criminal Code in which a community, the public, participates in a sentencing issue.

I think it's important to also step back and realize what's going on in a sentencing context. In a normal sentencing, council gets up and makes submissions at the time of conviction, or the time of plea, and addresses the offence and the offender and proportionality between the two. In Canada, the hallmark of our civilized society is that we do individual justice in the circumstances of individual cases.

In relation to first degree, Parliament said in 1976, we're not going to look at you at that time. You've committed a heinous offence. You're getting life, minimum 25, but if you do something over the 15 years, you can apply - it's not automatic - and we'll look at the individual circumstances after 15 years have been served. So the sentencing function happens then, and that's when the community, as opposed to a judge, determines whether or not there should be any change.

Again, looking at the statistics, 20% were refused. So even after going through the process, the jury said 20% shouldn't be reduced, and 79.4% were granted. So the jury obviously has a very good ability to differentiate between those who are deserving and those who aren't deserving, having regard to the individual circumstances.

You then also see, most importantly, what happens when they go to the parole board and have to try to convince it that they actually meet the criteria. The statistics on the second page of the fact sheet, which I assume all of you have, indicate what happened in front of the board. You'll see that only one person, who a jury said could have a reduction, appeared before the parole board and received a parole. Only one of the 75 who were granted something has reoffended by committing an armed robbery.

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In my experience appearing before the board for people who have gone through the jury process, it's very slow and very conservative. They start them with escorted temporary absences, often over a year to two years, before they start moving them to unescorted temporary absences, day parole, and full parole.

The National Parole Board is very concerned with trying not to have its name in the paper for having made a mistake or for having been too liberal. Sure they have made mistakes in the past; that occurs in the human process. But according to my experience they're a very conservative board, particularly on these types of cases.

The last point I want to make before turning it over to Alan is that the minister says only the most deserving can apply. What does that mean? Does that mean that if you've committed a multiple killing or if you're a serial killer you're not deserving, period? Does it mean that if you've done something like that and therefore you have been a very bad person and then you do something over 15 or 16 years which shows that you've made a significant change and that you're a different person, you are deserving? Are we looking at deserving based on a person's ability to change, having been very bad, or are we looking at people who haven't been quite so bad and who then come before the jury and are granted?

We need to understand exactly why we're doing this and why we're making that type of a change. There are many people who may have killed two people who nevertheless make very big changes, while there are all kinds of people who may kill one person who don't make any changes at all and would be undeserving. In my submission, one has to look at the individual circumstances of the case. That's what doing justice in Canada is all about.

I'd ask Alan if he would deal specifically with our recommendations.

Mr. Alan Manson (Subcommittee on Imprisonment and Release, Canadian Bar Association): Thank you, John.

I'm going to move to page 5 of the submission in the blue cover. Before I do that, I just want to repeat two points.

First, we don't understand the reason for this rushed process. Second, we have not yet heard a single argument of principle or item of evidence that supports any change to the current section 745 process, which in our view is fair and effective and provides a unique vehicle for community input in sentencing. I would be very happy to come back and answer any questions if someone believes there are arguments of principle.

In our submission, we've made four recommendations. The first one is not to change the current process. Bill C-45 should be defeated. If we can't get anyone's attention on that score, let me just look briefly at the three elements of Bill C-45: the screening process, jury unanimity, and the multiple killing exclusion.

With respect to the screening process, it is contemplated that the Chief Justice or a delegate will entertain affidavits, if a prisoner applies, with a view to assessing whether the prisoner, on a balance of probabilities, can show a reasonable prospect of success. In our view, that is not an appropriate role for a judge.

Judges are accustomed to looking at evidence that bears on guilt and innocence. The issue here is whether members of the community - you, me, our friends, our neighbours - would respond to evidence of change in the context of someone who committed a crime of violence 15 years before.

It's our submission that any case where a reasonable jury could reduce parole and eligibility ought to go to the jury. This is what was intended in 1976 and this is what is consistent with community input. If there is to be a screening process, it should be on the basis of no prospect of success. In other words, if the chief judge or his or her delegate is prepared to look at a record and say this case is entirely devoid of merit, then it should be tossed from the system. That's very different from, on a balance of probabilities, assessing whether and how a jury would respond to affidavit material when the jury would in fact hear and see the real person.

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As one further point, one can anticipate that prisoners now serving time who have been assured the opportunity of going to a jury will raise constitutional arguments that their sentence has been retrospectively altered if they're denied the opportunity to get to a jury by a judge. Surely that constitutional argument will be blunted in the extreme if the judge's only role is to decide whether there is no prospect of success or some evidence, because if the case has no merit in terms of the judge, there's very little likelihood that anyone will entertain a constitutional argument that the person has been denied charter protections once the judge has ruled that there's no merit.

So in our submission, recommendation 2, the test should be changed to ``no prospect of success''. I would point out that the Supreme Court of Canada in Swietlinski has already said that the concepts of burden of proof, proof beyond a reasonable doubt, and proof on a balance of probabilities are inappropriate to the section 745 process. That's another reason the current test in Bill C-45 is the wrong test. If there's going to be a screening process, it should be based on the simple question: does this case disclose no prospect of success? If it does, toss it. If not, it should go to the jury.

On the second point, jury unanimity, I've challenged jurors for cause at a section 745 hearing because of local publicity, and quite clearly these questions evoke emotional responses and you hear from jurors - jurors who believe in capital punishment, for example. If there is a provision of jury unanimity, it will only take one person to hang a jury. Without unanimity, the case is hung.

As a result, given the clear understanding that there are diverse views in the community, I predict that every lawyer who does a section 745 application will challenge for cause to find out about those views and opinions, because you only need one person who is opposed to the process to subvert the whole process. That's the main reason we're concerned about unanimity.

In our view, whatever utility someone might argue there is, is far outweighed by the problems it causes. There are constitutional arguments about unanimity. There's the concern that the test would have to be bifurcated. You'd have to ask the jury twice - go out and come back and answer reduction, yes or no. If 12 people vote for reduction, then come back and answer how much. If you don't do it that way, somebody's going to change their mind and that jury's going to be out forever.

So to summarize, our recommendation is there is no utility and lots of problems that flow from jury unanimity.

With respect to the multiple murder exclusion, certainly we can appreciate that the number of deaths caused is a legitimate consideration. Our concern here is that you've hived off a small subclass of people and said, without any individual consideration of the circumstances, their offences are so heinous that they are disentitled even to consideration by a jury of community members.

We are seriously worried that hiving off a small group of people is a concession of principle, is the first step on the road to arguments about capital punishment again. Once we admit that our system, our processes, our juries, our community members can't cope with the worst case, we're in a lot of trouble. The Canadian Bar Association is entirely prepared to have 12 members of any community in Canada look at any case, and it's our view that Parliament should equally be prepared to have 12 members of any community in Canada look at any case. So it's our view that it is completely misconceived to create this new multiple murder exclusion.

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Those are the three recommendations we would make about Bill C-45, all of which are premised on our initial position that we have not heard one argument of principle and not one bit of evidence that supports changing the current system. Thank you.

[Translation]

The Vice-Chair (Ms Torsney): We will now move on to questions. Mr. Langlois, you have the floor for the first question.

Mr. Langlois (Bellechasse): The questions you have raised are the same as the ones I raised last week, during my comments on second reading of the bill in the House. Your response to them is not necessarily identical, but very similar.

I am going to go over the points raised in reverse order; and I'm going to add the arguments you raised to mine. The jury unanimity rule seems dangerous.

Current statistics in Canada show that in some provinces, unanimity can be easily reached because of the way juries see the administration of section 745, whereas in other provinces, because of certain political trends, juries are somewhat opposed to a reduced period of parole ineligibility.

I believe that giving a one third margin to juries who can oppose the application of section 745 would make it possible to have a certain national standard. As criminal law legislators at the federal level, we do not have to share the administration of this Act with others, as it is the exclusive jurisdiction of the federal Parliament. So this Act would have to apply equally in Toronto, Quebec, Edmonton or Vancouver.

Keeping this leeway would enable an inmate to have the same chance of being released on parole or obtaining a fair hearing wherever he or she may be in Canada. That is what I had in mind. You have given me additional arguments in your brief and in the reasons why you were opposed to the unanimity rule.

Another reason I raised when Minister Rock appeared was that certain things were being mixed up. As for the determination of a guilty verdict, during the trial, the role of the jury is quite different. It judges the guilt or innocence of someone beyond a reasonable doubt. This is intimately linked to the presumption of innocence which is inherent to our criminal law.

At the hearing stage, under section 745, this is no longer the jury's role. It then resembles the role of a jury in a civil matter. However, when there is a jury trial on a civil matter in our courts, unanimity is not required. Our legislation does not require unanimity in the provinces, nor is it required by our American neighbours, because these are issues that can give rise to debates which are more or less based on semantics and highly personal assessments.

In the end, the jury's decision is a recommendation on a point of view which will be followed by hearings before the National Parole Board if the jury initially recommends that the process continue. So it is not a decision, but a mandatory step during which the jury grants its approval. These are the reasons why I am opposed to a unanimous verdict.

As for people having committed multiple crimes, whom we were describing yesterday as mass murderers or serial killers, the more we try to define this, the more we will be restricting the possibility for an inmate to file an application. A barrier is being put up right from the outset.

I share the views of those people who say that the barrier should be left to the jury or to the judge who will be responsible for the predetermination or the screening, according to the term you use in your brief. As it is almost impossible to define a serial killer or a person who has committed several crimes without becoming arbitrary, I would prefer that these provisions be struck from the bill.

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Basically, it seems to me that if we were to adopt this definition, we would always end up with exceptions, where it would be clear to everyone that the person is not likely to reoffend and would be eligible.

What will this result in? The only remaining recourse will be Royal pardon, or political-legal considerations. According to a judge I had as a professor in law school, the Minister of Justice or Cabinet decides whether or not a person should receive Royal pardon, based on principles of justice that have been established.

For criminal lawyers, there is almost nothing worse than filing a motion for Royal pardon with the Governor-in-Council. There is no control and the grounds for the decision do not have to be provided. Having to go to Her Majesty to ask for Royal pardon is an act of despair for a lawyer. I prefer a system where the rules are clearly set out. For these reasons, I would leave the system the way it is at present.

Regarding the screening process, I thought that it would perhaps be a good idea to review this stage. Should it be introduced, since at present, anyone - I do not need to advertize the names of the well-known murderers that have been raised - can ask a chief justice in a province to convene a jury, just because time has passed.

We could also accept the system as is, by saying that the jury will judge the facts and draw the conclusions it deems appropriate in such a case.

As for the process, I must admit that my opinion is not nearly as firm. If, however, the screening process were maintained, since clause 745.1 as proposed in the bill stipulates that the judge designated by the chief justice to hear the parole application - although in this case the term "hear" does not mean a hearing, but instead the submission of documents to the judge - would not only not be obliged to hear the parties, but also would not have the opportunity of doing so, it seeMs If there were a hearing, the audi alteram partem or duty to act fairly rule should be invoked. There seems to be something missing. Documents are being sent to the judge left and right. Upon what criteria will he base his decision?

I think that if screening criteria were established - and I'm not necessarily opposed to a screening process - all parties must have the right to be heard. We could of course use affidavit evidence to start. But we cannot completely eliminate an adversarial procedure at that stage, nor each person's right to challenge the evidence, because there is no guarantee as to the quality of the evidence that can be provided. Clause 745.1 does not clarify anything in this respect; that is what scares me.

So, the applicable criminal law rules and the Canada Evidence Act should apply to clause 745.1. You cannot admit just anything as evidence.

In its current form, the text does not seem acceptable to me. You are, however, suggesting an extremely strong test for the judge. You are saying that for all intents and purposes, it is more or less impossible to convince the jury.

I do not know what you think of my suggestion, but I have given it to you all at once with a view to obtaining your comments. If there is a screening process, the role of the judge must be more or less the same as the role of the judge at the preliminary hearing or that of the magistrate presiding over the preliminary hearing; in other words, the judge would determine whether a well-instructed jury would release the accused.

I was almost satisfied with this test that I am submitting for your comments. It seems perhaps a little less harsh, even though it is perhaps equally as harsh. I would like to hear your comments on the approach I have just described.

[English]

Mr. Manson: I'll be very brief, because that in fact is exactly our recommendation, put the other way around. No prospect of success is the same as, is there some evidence upon which a reasonable jury, properly instructed, might reduce? So we agree entirely with you that it should be the same test as is currently applied by a justice at a preliminary hearing. If there is some evidence, then the matter should go forward to a jury. If there is no evidence, no prospect of success, then the process should be foreclosed right there.

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So we agree entirely that it is the appropriate test if there's going to be a screening process: to take out cases that have no merit. Let any case that has some merit go forward. Let the community members, let the jury, assess it. Yes.

Mr. Conroy: To add to that, on the issue of a judge trying to predict what a jury will do on the types of issues the judge is going to have to look at at a screening, if there is some evidence as to character or good change in conduct, then the judge is going to be put in the situation of trying to weigh that on paper, but he's going to have then to predict what facts the jury will find if it goes to a jury.

In my submission, that's part of the reason why the test in preliminary hearings has developed the way it is, from the wording in the code to the judge's determining if there is any evidence. If there is some evidence that will resolve it in favour of the Crown at a preliminary hearing, then it will go to the jury.

The same thing should apply here.

Mr. Ramsay (Crowfoot): I thank you for your brief. This is an excellent brief inasmuch as it deals with or it exposes the colossal mess this bill is going to make with section 745.

The real debate, and the only debate, is whether section 745 should be in the Criminal Code at all. That's the debate - not whether we're going to fiddle and fool with it, as this bill is going to do, to make the kind of mess your brief has outlined.

It's very easy for me to dislike your position after hearing victims of crime address the committee for close to two hours this morning. They were Sharon Rosenfeldt, Mrs. de Villiers,Steve Sullivan, Debbie Mahaffy, Darlene Boyd, and Johanne Kaplinsky. You people, because of your position in defence of people who have been convicted of first-degree murder, would have these victims go through pain and anguish and turmoil every time the killer of their child makes an application that they have to deal with. Even those who don't make any conscious effort go through the agony that they go through when this whole thing is reawakened again in their minds as a result of an appeal by a first-degree murderer.

I'm concerned that, in your defence of the rights of first-degree murderers, you're prepared to ignore their rights and their suffering and their agony. I don't know how you can draw a balance.

Really, it's a conflict between two values: your defence of the rights of first-degree murderers to be able to apply for early parole or at least the reduction of parole ineligibility after serving 15 or 16 years and the rights of those who are suffering and who have suffered ever since their child has been murdered and who will suffer anew as a result of what you want to be maintained within the Criminal Code for the benefit of first-degree murderers.

I have a great degree of difficulty in balancing those two interests, one on the part of the criminal and the other on the part of innocent victims who've done nothing.

You're going to bat for those who have committed a crime, the most heinous one in the Criminal Code.

In 1976, when the capital punishment issue was taken out of the Criminal Code, it was not necessary to introduce section 745. It would not have been a constitutional challenge. That law could simply have been passed as it is read and as every judge reads it out to someone who's been convicted of first-degree murder: that you're sentenced to life imprisonment with no hope for parole until you've served 25 years. They never mention section 745.

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So the point I make is that it's not necessary to have it there. It was not necessary to put it there in the first place. But it was placed there, and now it's causing this challenge.

Of course the hue and cry across the land from victims groups, and I might point out...and we could go on and on. But how many first-degree murders occur each year? How many families are affected in the way these families who testified before us this morning are affected? There is a growing family of people in every community who suffer this same problem. As a result of that, there is a growing voice across Canada simply to eliminate section 745.

So that's what the debate is all about, and the justice minister has brought in this flawed half-measure that just aggravates the situation, not only for those on our side of the issue but also for you folks on your side of the issue. I can say to you your recommendation here is to defeat Bill C-45. Well, you have my vote to do that very thing, but for entirely different reasons.

If you'd care to comment on anything I've said, I would be pleased to have it put on the record.

Mr. Conroy: Let me first say to you, Mr. Ramsay, those of us who are involved in sentencing think a progressive approach to sentencing does involve the community. Such things as sentencing circles which involve victims in the sentencing process, family group conferencing which involve victims in the sentencing process so they have a real say, not just a written statement, are a progressive improvement on the criminal justice system. So we're in favour of involving victims in the process much more than they're currently involved.

Let me also remind you, however, that justice in Canada is done on an individualized basis, where we look at the offence and the offender. If a person receives a life sentence, it is a life sentence. That person is subject to that sentence for the rest of their life, no matter what happens.

Some people don't do anything and they don't deserve anything. But some human beings, even though they have done something very bad, do change; and we don't equate the sentence the person has received solely with the victim's suffering. That's not what we do in Canada, because vengeance and retribution don't have a place in a rational sentencing system. We believe all kinds of things should be done for victims, but you shouldn't equate this solely with the victim's suffering and the life sentence.

Mr. Ramsay: I understand your rationale.

Mr. Conroy: Remember also the Supreme Court of Canada has said these parole reviews are very important in preventing a sentence from running afoul of section 12, the cruel and unusual punishment section of the charter. When we had the dangerous offender legislation subject to review, that's what they said. It is important, and it was important in 1976, although we didn't have a charter. It's certainly more important now, with the charter. If there is no parole review, you run the risk of the court striking the law down as being cruel and unusual.

So it involves a balancing between the public interest and the individuals. And what better way than having a jury do it, a jury of ordinary people who are brought randomly into a court room to make that decision? They are aware of the victim's suffering.

We agree something else could be done to improve the 745 review in terms of victim participation, if they want to. But as you said, many of them obviously don't want to get involved at all. But every time an offender gets his name in the newspaper, whether it's put in the paper by the offender or by the media or by politicians, it has that effect on those victims as well. It's the hearing of that name and that offence being revived. It's not solely because of fifteen-year reviews.

Mr. Manson: Could I jump in, Mr. Ramsay?

Mr. Ramsay: We have only so much time.

The Chairman: That's the question. You have to take the answer.

Mr. Ramsay: I asked Mr. Conroy and got his answer. But go ahead.

The Chairman: I'm going to let Mr. Manson respond.

Mr. Manson: It's important to understand that notwithstanding the sincere views ofMrs. de Villiers, Mrs. Rosenfeldt, Mrs. Mahaffy, Mr. Sullivan, Mrs. Boyd, and others, there are other victims who take a different view about how their needs ought to be addressed by the criminal justice system. Last week when the Minister of Justice met with the leaders of national women's groups, many of which are front-line workers working to support women and children who are victims of violence, those groups unanimously took the position that section 745 ought not to be changed.

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Just recently I saw a wonderful American documentary called From Fury to Forgiveness, which shows the different kinds of responses that people who have suffered tragic losses may have. While I think it's important that we listen to everyone's voice, emotional voices and human responses ought not to be the engines of criminal justice reform in Canada. We need to have measured, reasoned responses.

I say that without intending to belittle the pain of any of the people you mentioned. I hope you appreciate that.

Mr. Ramsay: You've just taken up my time.

Mr. Manson: I apologize for that.

The Chair: I have a feeling we'll get back to you.

Next is Mr. Allmand, who's going to behave himself very well today.

Mr. Allmand (Notre-Dame-de-Grâce): I promise to behave.

Mr. Conroy and Mr. Manson, I'm very concerned about this process to screen the applicants by the judge. I don't know, but maybe you can tell me in answering the question whether there are any other precedents where judges do these kinds of things.

First, I'd like to know to what extent it is a judicial process when he examines the affidavit. Do you foresee requests by counsel to cross-examine on the affidavit? If there is cross-examination, if that's allowed, then I see the whole process going beyond a simple review of paper and then argument.

I also want to know what you anticipate with respect to appeals in this by either the Crown or by the counsel for the applicant. If the judge allows the applicant to go to the full jury, may not the Crown appeal and say that the judge misread the affidavit? I can foresee all sorts of arguments by counsel.

I was discussing this with some colleagues, and the closest that we could see this coming to other types of legal processes was applications for bail on affidavits. I'd like you to comment on that. Is this like an application for bail, where the decision can be made on paper?

That's my first question.

Mr. Conroy: If you want to address the bail part, let me address the first remarks that you made. If anybody thinks that counsel are just going to accept this the way it is, when we're dealing with a hearing that potentially affects liberty, I think you can anticipate that -

Mr. Allmand: On either side.

Mr. Conroy: - lawyers on either side, but particularly on the applicant's side initially, are going to look very carefully at this screening process in terms of whether it complies with section 7 principles of the charter - for example, the principles of fundamental justice - because it is a liberty issue that's involved.

I think you're absolutely right about the affidavit. Let's remember that the affidavit presumably will be from the applicant with as much detail as possible and may well have evidence in affidavit form from prospective witnesses, including professional witnesses like psychiatrists, psychologists, and so on. Maybe there will be some from the Crown; it's hard to predict. But I would suspect that if there's any disputed question of fact, counsel will seek to cross-examine on the affidavit.

Any time you've got a person trying to make a decision on paper without a witness being there to be examined and cross-examined, if there's a disputed fact and credibility is an issue, how else can we determine credibility? You can't do it on paper. So that's going to be a problem.

The problem with appeals is going to be phenomenal. Certainly I can see that an accused or an applicant who is turned down is going to appeal. The reverse may happen too; the Crown may appeal, and this may go on up the ladder for some time before it comes back and the person can apply.

It's going to be at an increased cost to the system, an increased cost to legal aid budgets, because most people who have been in prison for this length of time are going to be seeking legal aid. They aren't going to have any money to apply. It's going to add all these extra stages to what we have now, all of which are going to increase the costs.

I'll let Alan deal with the bail issue.

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Mr. Manson: I think it is important to note that proposed subsection 745.2(1) talks about the court of appeal being able to decide any question of law or fact or mixed fact and law. But the rest of the provisions don't speak to affidavits. They don't talk about sworn material; they talk about written material.

I think you raise a very important point. In Ontario the practice is that you make your application and the prisoner swears an affidavit that says the material in their application is true. I don't know if that's done in other provinces. Every province and territory has its own rules. But this process doesn't require sworn material. It just says any written material, which is bizarre to have any kind of consideration without sworn material.

If provincial rules require affidavits, which I think they obviously will, there will be cross-examination. You're absolutely right.

Mr. Allmand: If they're not sworn to, it would seem obvious to me that counsel for the Crown will want to cross-examine to test the veracity of the papers, the statements that are tabled.

Mr. Manson: Yes. And if you're asking about whether there is an analogue anywhere, the closest analogue I can think of is in the civil process, a motion to dismiss for disclosing no cause of action, which would be done on the basis of affidavits and oral arguments before hearing evidence. But that would be a test like the one we talked about before of no prospect of success. It's a very minimal threshold, but that would be the closest analogue that I can think of.

Mr. Allmand: You don't see the bail application as a post analogue.

Mr. Manson: In bail hearings you hear oral evidence. Some bail reviews are done on documents only but bail hearings are -

Mr. Allmand: Okay, I'll move to another question. You pointed out that since under the present processes you cannot even apply until 15 years have elapsed, it usually takes about a year before you get before the jury. I know in a case that I sat in two years ago in the summer of 1994, the individual who was granted a reduction to 15 years - we were already in the 16th year when it happened - still hasn't got before the parole board.

I'd like you to give the committee your experience, since you've both done these, on how long it takes.

Is it the 18th? This individual now is in his 18th or 19th year already, even though the jury reduced the eligibility date to 15 years. The individual has not yet even got to the parole board.

What is the average that you encountered in your work in getting to the parole board? And I point out, because it's forgotten, that although about 79% of those who have applied have been granted some reduction, only 17 of the 50 have got full parole. I would be interested in knowing in what year it is done.

Mr. Conroy: And five have not been reviewed in the statistics in the fact sheet.

I think the first point again, to re-emphasize, is that a person might apply as soon as they've done 15. If they don't have counsel, which we see sometimes, then counsel comes in and we say they aren't in a position where they're going to get anything, so we say to adjourn the hearing and not to press it further until they're at 17, 18, 19 or 20, when we think there's some merit to the application.

Then let's take the situation where the jury has reduced. Most of the ones I've done have been in the 17 to 20 range for killings of police officers. We haven't gone in front of a jury in British Columbia unless it was around 19 to 20 years, remembering that they're eligible for day parole three years before.

On each one, the five that I've done...the first one has finally now - and this is five or six years ago - been on some unescorted temporary absences, having only just got it this week.

Mr. Allmand: What I'm getting at is that people forget there's a considerable delay between the decision by the judge and jury to the actual hearing even before the parole board.

Mr. Conroy: Okay, I would say the average in British Columbia is six to eight months, and that's for escorted temporary absences, not for parole. Technically you're eligible for parole, but the board is going to look at you for escorted temporary absences only.

So the first one I did, which goes back now at least five or six years, has finally, as I say, had escorted temporary absence for a year and a half, I think, and finally they gave him some brief unescorted temporary absences, but very structured and very monitored. So he hasn't got the parole yet. None of the five or six that I've done has.

I did one who's a second-degree murderer. It's important to remember that this applies as well to second-degree murderers who get a parole eligibility in excess of 15. I've had one second-degree murderer who was paroled, but none of the people with first has been paroled. They're on escorted or unescorted passes.

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Mr. Manson: I can give you one example of a case I did in the spring of 1994, which I think was probably one of the best section 745 candidates that have come before a jury. He was made immediately eligible by the jury. At that point, he was already out of the institution 80 hours per quarter, with the approval of the institution and the parole board. He still had to apply for day parole and he still had to apply for full parole, and it took almost a year and a half to get out on full parole after the section 745 hearing.

That is an excellent case. Bad cases get turned down. You can see from the stats that the parole board has refused entirely six people who were granted some relief by a jury.

Mr. Allmand: But the bottom line is that nobody's getting out in 15 years.

Mr. Conroy: No, definitely not. You should know that the parole board doesn't have jurisdiction, as a matter of law, over escorted temporary absences, but they are still going through a hearing process. So it's been added as an additional check, even though they don't have that jurisdiction in the end.

Mr. Allmand: Let me ask these questions.

The Chair: Thank you, Mr. Allmand. We'll get back to you.

Mr. Allmand: I don't want to misbehave.

The Chair: I think you're doing very well.

Mr. Conroy: We'll give you a 15-minute review.

The Chair: Mr. Langlois. No questions. Mr. Ramsay.

Mr. Ramsay: Thank you. I'm back so quickly.

You have, of course, great faith in the parole system, which I think reflects an insensitivity towards the loss of human life.

Last year 15 people were murdered by individuals on early release. Seven of those apparently were released through the National Parole Board. There were an additional 15 on early release who attempted murder...22 sexual assaults, 21 major assaults, and 71 armed robberies. Since 1987 criminals out on some form of early release killed 206 people and tried to kill another 162, I guess in attempted murders.

I see a growing insensitivity to the loss of human life simply because, as the warden said out at the female prison in Edmonton when one lady inmate lost her life there by murder or suicide - it looks like a murder - they were on a shakedown cruise and those are things that happen.

If 15 people died, not murdered but simply died as a result of decisions made directly or indirectly by any agency or company or organization in this country, heads would roll. And if it was a federal organization, it would be a national disgrace. Yet we hear not a whimper from people like you, who should be vitally interested and concerned in these areas.

I make that observation, and then I want to touch upon this whole business of your faith in juries. Some of the most significant miscarriages of justice have been made as a result of the decisions of juries.

The Donald Marshall case is one; the Wilson Nepoose case is another; and there are many of them. I've got files on my desk from people sitting in prison claiming the same thing, that they're there because of a miscarriage and that they're innocent.

Juries do an excellent job if they have the information, the truth, before them. They will seldom, if ever, go wrong. But the fact of the matter is that the truth is filtered out either through the police forces, through the Crown prosecutors, and in some cases the defence counsels. For some reason or other, they don't bring forward evidence available to them that would be beneficial to their own client.

When we talk about juries and having faith in juries, and particularly under section 745, I see an enormous weakness in that argument. I've never attended a section 745 hearing, but the information I've heard is that there is a high degree of probability that not all the relevant information, pertinent information, gets before the jury so that they can make a fair decision.

Would you have a comment on that?

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Mr. Conroy: Yes, I fundamentally disagree with you. I think the jury is the last truly independent decision-maker we have in this society. I'm like you; I'm sure you get most of your information from the media, the ten-second clip, the newspaper, things of that nature, anecdotal evidence from individuals as opposed to the evidence that is presented about a particular case according to law, according to rules of evidence in front of a jury.

Mr. Ramsay: No, no. You shouldn't speculate where I get my information from, Mr. Conroy.

Mr. Conroy: Most of the information from people pressing for changes in the criminal justice system comes from those sources.

When we've gone through these 15-year reviews, one of the most interesting things has been the jurors' reaction afterwards. They come up to us and say that they never knew the prison system worked this way or that the parole system worked this way. They used to get their information from the newspapers or from the television and they didn't know. This was a very educative thing where they got the whole picture from the prison people, through crown counsel, and everything about the individual.

The jurors usually do this for the first time. They're not subject to media pressure the way judges can be, particularly nowadays. If it's a controversial case and you're a judge, you have a picket line out front of the court room and you have people screaming and shouting in the media trying to influence the judge one way or the other. They can't do that to a jury because the jury is unknown. They are anonymous people who are suddenly picked; they've taken things seriously; they've followed the judge's instructions and they're told to disregard the media and disregard all the stuff out there that's not part of the evidence in the hearing.

Mr. Ramsay: They only act according to the information that's placed before them.

Mr. Conroy: Right, which is admissible evidence according to the law, Mr. Ramsay.

Mr. Ramsay: And if all the information is not there, how can they bring forward a proper decision?

Mr. Conroy: If the evidence is unreliable or not admissible for some other reason, it shouldn't be admitted in front of the jury. The Crown is there to represent the people.

Mr. Ramsay: But that's not the issue.

Mr. Conroy: If the Crown falls down on its job and doesn't bring the evidence forward, they should be accountable for that and they should be criticized.

Mr. Ramsay: How are they through this process, through the section 745 process?

Mr. Conroy: They aren't through the section 745 process. It should be up to people like you to bring that to the attention of the Attorney General.

The Chair: Mr. Ramsay, this is not a private conversation and the very well-behavedMr. Allmand wants a chance.

Five minutes. I'll give you Ramsay minutes.

Mr. Allmand: Thank you.

I was interested in your statements relating to the requirement for jury unanimity and how this opens up the potential for challenges for cause. Under the present process, how often is that used? In the empanelling of juries under the present process, has challenging for cause or other challenges been a serious problem?

Mr. Manson: I can tell you that I know of one and only one case where there have been challenges for cause. It was in Ontario, the case I alluded to earlier. It was because of specific publicity within 10 days before the commencement of the hearing.

There are a number of appellate court decisions throughout the country dealing with the question of the threshold for challenge for cause generally.

Our submission is that if this gets passed by requiring unanimity, every counsel will be making applications for challenge for cause. That may not be a bad thing, but it will be an essential thing in order to ensure that every member on the jury respects the process and won't be acting to subvert the process. It will lengthen the hearings.

I'm not opposed to challenge for cause in a situation where there is reason to be concerned, but I think it very unusual that you create legislation that produces that reason for concern ab initio, from the beginning.

Mr. Allmand: Yes, Mr. Conroy.

Mr. Conroy: In British Columbia I think we've only had one case where there was full challenge for cause, and it took us two weeks to pick the jury. This was the ``Squamish five'', and the judge said he would never allow challenge for cause again.

In these 15-year reviews and in murder trials generally, it's my experience that judges are very reluctant in B.C. to allow us to go through the process in the Criminal Code that's set out, which is unique to Canada in terms of the jurors picking the next juror and so on.

So the more common practice is a general statement to the entire panel before the names are even pulled out of the box. So in a case that involved parole or a parole issue, the common practice would be to ask those people who have strong feelings one way or the other, in terms of a parole issue or in terms of first-degree murder or these sorts of things, to tell us that when they come forward, so we don't have somebody on the jury who thinks the section 745 review shouldn't exist and that the death penalty should, and that it's therefore really insulting Parliament by saying they don't like what Parliament has done, and they prefer the other process.

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Mr. Allmand: But you say this judge in British Columbia said he wouldn't tolerate it.

Mr. Conroy: That was because of the time it took.

Mr. Manson: That's not a section 745 case.

Mr. Conroy: That wasn't a section 745.

Mr. Manson: That was a criminal trial.

Mr. Allmand: All right, very good. But your submission is that with this change, this requirement for an unanimous jury, you expect and I would expect too that in every case you'll challenge for cause. No judge would be able to prevent that.

Mr. Conroy: The judges will be reluctant to do it, but because of the way this is structured, we think it's going to be difficult for a judge to go against it. And certainly we would hope the higher courts will say that in these types of cases and in these types of circumstances it should be allowed.

Mr. Allmand: The fact is that only 42% have applied. Some people found it unbelievable when they first looked at the statistics. They presumed that everybody would apply as soon as 15 years approached.

Both of you have recounted how in your practice you advise people, if they have no chance at all, not to bother.

I have spoken to some people about this. In Quebec I know that legal aid is available for people who make applications and there have been more applications in Quebec than in any other province, more reductions - and, by the way, less opposition to section 745 than in any other province. In the province where it's been used the most, we've had very few protests or petitions or movements, etc., to get rid of it.

I know you're from different provinces but represent the Canadian Bar Association. Could you tell us what provinces provide legal aid for these applications? I understand Ontario doesn't now. I don't know if that's true or not.

Mr. Conroy: My understanding is that all do, but they're all going through a process of trying to determine whether they should have a merit issue. In other words, should the legal service societies be looking at merit, first of all, so they'd have their own screening process because of the cost?

Mr. Allmand: But right now all provinces provide legal aid.

Mr. Conroy: That's my understanding.

Mr. Allmand: I've had letters from inmates telling me that they can't get legal aid for these things.

Mr. Conroy: From what provinces?

Mr. Allmand: I'd have to look at my correspondence. I was told that by other social workers and people working in volunteer organizations who try to help inmates.

Mr. Conroy: What often happens is that we have prisoners from other provinces. For example, we have lots of people convicted of first- or second-degree murder in British Columbia. They apply in British Columbia and then there's communication with the legal aid in Ontario and they work out some reciprocating thing.

Mr. Allmand: It has to be in the province.

Mr. Conroy: But a lot of the preparatory work and all your witnesses often are in the province where the person is in prison, so you then try to do something because your hearing has to be in the province where the murder occurred. So what we've done in some cases is use video and stuff like that to try to minimize the cost of bringing everybody.

I know legal aid societies have been talking amongst each other because of that issue of their sharing costs when the person is in the other province until they come. So my understanding, again, is that people can be covered. I'm surprised to hear that it isn't covered, because it's treated like a first-degree murder hearing.

Mr. Allmand: Maybe they meant those costs.

Mr. Manson: There are cutbacks all across the country and legal aid plans have been gutted all across the country. When you get involved in out-of-province costs, what John is talking about, and you have somebody who's spent the past 15 years in custody in B.C., they will be shipped back to Ontario for their hearings, but your preparatory work has to be done by agents in British Columbia. Legal aid plans are becoming very reluctant about paying for those out-of-province costs. That's not the same as paying for counsel at the hearing, but as everyone here who's practised law knows, if your case isn't properly prepared, what's the point?

Mr. Conroy: If I prepare the case, they won't send me to Ontario to argue it; counsel in Ontario will have to argue the case.

The Chair: Thank you. Mr. Langlois. Mr. Ramsay.

Mr. Ramsay: I'd like to ask your opinion about what appear to be descending penalties within the Criminal Code.

Forgery and uttering hold a maximum penalty of 14 years. It used to be that breaking and entering a dwelling with intent to commit an indictable offence used to be a life imprisonment penalty. Sexual relations with a female under 14 used to be life imprisonment. I think there are a number of offences in the Criminal Code that are very close to the 15-year period.

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I don't know if you've looked at Bill C-17. It's going to reduce some of these indictable offences to a procedure by summary conviction as well. It's going to reduce the 14-year maximum to 10 years on indictment. Do you see a lessening of the penalties generally within the Criminal Code?

Mr. Conroy: I don't, but I'm going to let Alan respond to it.

Mr. Manson: I think one of the reasons for creating these new super summaries - that is, changing indictables to summaries with penalty maximums of 18 months rather than 6 - is to permit crowns to deal expeditiously with more serious matters rather than having to go through a preliminary and jury trial. Sexual assault, for example -

Mr. Ramsay: I understand the rationale, but that's not the question.

Mr. Manson: In answer to your question, I disagree with you entirely. If you look at the number of years, person-years, that are being served in custody in Canada, they are increasing annually. The size of jail populations is increasing annually, while at the same time crime rates, including the rates of violent crimes, is decreasing. Let's talk about murder, for example.

Mr. Ramsay: Yes, but is that the question?

Mr. Manson: We're here talking about murder. A minute ago you raised some statistics, and I just wanted to come back and say that the rate for murder in 1994 was the lowest rate in 25 years in Canada.

Mr. Ramsay: What was it?

Mr. Manson: There were 596 killings. It works out to -

Mr. Ramsay: Is that comforting to you?

Mr. Manson: Mr. Ramsay -

Mr. Ramsay: Is that comforting to you? It's not to me.

Mr. Manson: It is comforting to me that the rates of crimes of violence are decreasing, yes.

I didn't come here to be badgered, Mr. Ramsay. If you want to listen to my answers, please listen.

Mr. Ramsay: I'm sorry if I'm badgering you. Go ahead.

Mr. Manson: It's not a question of whether I am comforted.

Another important statistic is to look at the rates of success or failure of murderers who have been released on parole. The CSC did a 15-year study of all the murderers released between 1975 and 1990. Of that group, five murders were committed. That is a fraction of 1%. The number of indictable offences against the person is 2.79%.

Mr. Ramsay: You see, that's not the issue in terms of first-degree murderers. It is what a fair and just penalty is for the planned and deliberate murder of an innocent person.

Mr. Manson: And the penalty is life imprisonment. People are under state control for life. That is the gravest penalty within our system and it is a very serious penalty.

Mr. Ramsay: With respect to the 25-year parole ineligibility now in the Criminal Code, could that be challenged constitutionally?

Mr. Manson: I think Mr. Conroy alluded to this. Our Supreme Court has already indicated when it validated both the constitutionality of the first-degree murder penalty and the constitutionality of other indeterminate sentences -

Mr. Ramsay: Why do you think it's still there?

Mr. Manson: Let me finish. I'm saying when they validated...

Mr. Ramsay: [Inaudible - Editor]

Mr. Manson: Please let me finish.

When they validated the constitutionality of those two kinds of sentences, integral to their conclusion of constitutionality was the existence of section 745 and the possibility of a tailored response. If you do away with that, you are rendering the first-degree and second-degree murder scheme open to constitutional challenge based on the words of our own Supreme Court in the case of Luxton and in the case of Lyons.

The language is right there. Any lawyer in this country could make that argument if Parliament acted to do away with section 745. Let's not be naive. That's the constitutional reality, whether it comforts you or not.

The Chair: Mr. Ramsay, sorry. There's an old saying of my father's: You pays your money and you takes your chances. When you ask your question, you get an answer. That's the thing about asking questions.

I want to thank you all for participating. Mr. Ramsay got the last word for a change today. We move on to our next witnesses. Thank you very much.

We'll just rise for a couple of minutes while people change places.

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.1648

The Chair: I want to welcome, from the Barreau du Québec, Mr. Guiseppe Battista and Michel Marchand.

I'm going to warn you about something. At about 5:30 p.m. all hell is going to break loose here because the bells will start ringing for us to go for a vote at 5:45 p.m. So we will try to prolong this as long as we can. Just go ahead and make your submissions, and we'll have questions.

Mr. Guiseppe Battista (Association des avocats de la défense de Montréal): Maybe I will make a brief presentation. Michel Marchand will be addressing this committee on behalf of the Quebec Bar. I'm here on behalf of the Montreal defence lawyers' association. We are very familiar with the positions of the Quebec Bar, so I'll be making comments afterwards.

[Translation]

Mr. Michel Marchand (Barreau du Québec): I am here today representing the Barreau du Québec.

We would like to start by apologizing for not having presented a brief, but we were not given much notice. I myself was not notified until late Friday afternoon; we were not able to prepare a brief on such short notice, but we would have liked to have done so.

I am here to explain the position of the Quebec Bar, which is made up of 16 000 lawyers who practice in the province of Quebec.

.1650

Today I will be presenting the position of the Bar's Standing Committee on Criminal Law. The Quebec Bar has several committees, including a committee on criminal matters which sits regularly and is comprised of roughly 15 lawyers, including Crown prosecutors, defense attorneys, university professors and even a lawyer representing police officers. This committee represents more or less all of the leanings within the Bar. It has adopted a unanimous position on the bill which is under consideration by Parliament.

On behalf of the Barreau du Québec, we would like to thank you for your invitation. Fundamentally, Bill-45 proposes three broad changes.

First of all, the bill stipulates that a person who has been convicted of more than one murder may no longer make an application for judicial review, as is the case at present. It also calls for a screening process involving any evidence; no mention is made of a hearing.

In addition, the bill stipulates that only written evidence be used, as I just mentioned, but that it will also have to be preponderant evidence and the judge will have to be convinced that there is a reasonable prospect. That is a rather rigid and harsh position.

The current legislation is also being amended to require jury unanimity on the initial decision to accept or reject the application.

These three major changes affect the very heart of the Act, and the Barreau du Québec is strongly opposed to the amendment proposed in this bill.

Like the members of this committee, I have familiarized myself with the documents from the office of the Minister of Justice which state that this bill is the result of concerns expressed by lobby groups. The same documents did not address the pressing issues which weren't amendments to the Act, from a statistical point of view.

Do not lose sight of the fact that the Act as it stands, and this is confirmed in a document we received, had three main objectives: offering people convicted of murder hope of being rehabilitated, ensuring the protection of prison guards, and recognizing that in certain cases, incarceration is no longer necessary.

If this bill is adopted, I think we will have to forget about the concerns that existed at the outset, when this legislation was drafted, because, for the most part, they have been left out of the current bill.

In our view, the proposed amendments are a real vote of non confidence in the jury, which is a wonderful institution. We have recourse to 12 independent citizens who make a judgment in light of the appropriate instructions they have received. They are representatives of the community. This bill is a vote of non-confidence in that institution.

This bill basically shows that there is fear regarding what a reasonably instructed jury might decide after having heard all the evidence. Statistics clearly show that juries have accepted most of the applications. The reaction is to introduce a bill so that fewer juries will be able to rule on cases like that in the future.

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We find it paradoxical that some want to yield to a lobby group composed of citizens who want to remove rights from juries that are also comprised of citizens, but citizens who were selected randomly, who come from all backgrounds and who represent society as a whole. As a result of lobbying, juries would be stripped of this power.

In our view, this is a significant shortcoming of the bill. In fact, this is an attempt to ensure that citizens, who are represented by juries, can no longer determine on a case-by-case basis whether or not there will be a reduction in the number of years of imprisonment without eligibility for parole.

If this bill is adopted, the judge, who is a legal professional, but not a jury or an ordinary citizen, will have to be convinced. This is an attempt to filter the decision through a judge.

Finally, there will be no hearing, because there will only be written evidence. In reading the bill and looking at what is proposed in English, it is clear the reference is to written documents. So there is really no hearing.

In addition, the judge will be able to say to the person who has served 15 years of his sentence that he is rejecting the application because the documents he has read did not convince him. He will be able to tell this person that since there is no preponderant evidence, a jury will not be convened to assess his application's merit. Consequently, he will reject the application and tell the person to come back ten years later. We find that a bit excessive.

Moreover, it must be noted that the bill includes a right to appeal this preliminary decision. It is somewhat paradoxical to give the Crown the right to appeal on the basis of questions of fact or questions of law and fact, whereas normally, the Crown has the right to appeal only on questions of law and not on questions of fact or on questions of law and fact. More power is being provided at the appeal level to ensure that there are as few applications as possible that go before a jury.

This bill also proposes that a person convicted of more than one murder be removed from the review process. Reports in the newspapers or on the radio state: "Parliament introduced a bill against serial killers". So I logically thought that this was an attempt to ensure that a person having committed three, four, five or six murders, a serial killer like Mr. Olson, would not be able to obtain parole. I said to myself that this might not be a bad thing.

But when you look at the bill, you realize that this is not the case at all. The bill states that once a person has been convicted of two murders, he or she will no longer be able to apply for judicial review. It does not say that the two murders have to have been committed on different days. So a person who has committed two murders on the same day, with the same criminal intent, could, based on how the bill is worded, be refused the right to apply for judicial review.

There are famous cases, like the Lortie case in Quebec, which would perhaps qualify under this clause. In this case, the person pleaded guilty to second degree murder. Under this bill, he would no longer be able to benefit from a process like that, whereas he was able to and does not seem to have any particular problems living in society. That is what this bill will do.

A lawyer told me about a case in Quebec where a jury had accepted a judicial review even though the person had committed two murders. First of all there was the murder for which the person was incarcerated, and then, while he was being held in the penitentiary, he got involved in a brawl with other inmates and was convicted of a second murder, even though he pleaded self-defense. The person appeared before a jury a year or two ago in Quebec, and obtained parole; that is, obtained the right to apply for judicial review. The lawyer told me that after the hearing, the members of the jury wanted to meet the accused, because they were truly impressed with the evidence that was provided.

.1700

We must bear in mind that with an Act like the one being proposed, cases like that will no longer be possible.

Moreover, there is the unanimity rule. From now on, there must be jury unanimity regarding the decision to accept or reject a reduction in the number of years of imprisonment without eligibility for parole. This seems to be a breach of democracy, a breach of dissent.

In our view, the current process is very well balanced. There's a jury of 12 people to decide whether or not someone is guilty, and the decision reached by these 12 people must be unanimous. What applied for judicial review was not the fifty per cent plus one rule, but the two thirds rule, which seemed perfect to us.

Now, the rule of unanimity among the 12 jury members is being requested. But we must also bear in mind that the judge, when called upon to determine whether to grant or reject an application, will have to refer the matter to a jury. The judge will have to bear that in mind.

Will the person be able to convince all 12 jury members; not just two thirds of the jury, but all 12 members? Finally, these provisions will result in there being very few applications which will be heard by juries.

Bear in mind that a decision of this type, under the current section 745, simply allows a reduction in the number of years of imprisonment without eligibility for parole; in other words, it enables the person to apply to have his case examined by the National Parole Board. It is not because there is a reduction in the number of years of imprisonment without eligibility for parole that a person will necessarily obtain parole.

You must also bear in mind that while the National Parole Board grants parole, a person remains under the jurisdiction of the Parole Board for the rest of his life, and his parole can be revoked at any time. It is the position of the Barreau du Québec that the current Act is not problematic. It is effective and has not caused problems in Quebec. There are a lot of applications that have been granted, and there do not seem to be any particular probleMs We were even surprised to see Parliament seizing an opportunity like this to amend an Act which, in our view, does not pose any specific probleMs

Moreover, in the documentation we received from the Department of Justice, it is apparent that sentences in Canada for murder are very long. These sentences are almost the longest in the Western world.

Our position is to leave the current process as is, which means that inmates convicted of murder who are serving long prison sentences can remain hopeful. It is very important for an inmate to have hope and to be able to say that perhaps some day he will get out. With this hope, he can try to improve his conduct, respect guards, respect others, make amends and try to change.

The proposed amendments disregard all of that as well as the institution of the jury, whereas it is an example of what we have to keep, and not try to abolish.

Finally, it is important to recognize that a human being can change and that a jury can recognize that.

Therefore, we are categorically opposed to the proposed amendments and we would like the current legislation to remain unchanged.

I am now ready to entertain your questions.

The Chair: Thank you, Mr. Marchand. Mr. Battista.

Mr. Battista: I am here on behalf of the Defence Lawyers' Association of Montreal.

We represent more than 300 lawyers who practice criminal law in the Montreal region.

The association thanks you for your invitation. I will be brief. Mr. Marchand covered all of the issues which, in our eyes, pose a problem, and I would simply like to state that we fully agree with the Barreau du Québec's position.

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I could add some comments concerning the first matter that was raised, that is being convicted of more than one murder.

[English]

I can also speak in English. It might make things easier for everyone here.

As for the issue of being guilty of more than one murder, the problem this also raises - and maybe it's a secondary issue - is that people can be found guilty of murder by complicity. They may not be the actual murderer. For example, take the scenario where an individual is found guilty of complicity for being with two other people who each kill one individual. This person would not have committed the murder, but would nevertheless be responsible for a double murder and would nevertheless not be eligible for parole although he may well warrant it.

The other issue is the pre-selection by the judiciary. The concern here is very fundamental. We have a process whereby the people decide who goes through and who doesn't. It is people who evaluate the evidence, They are ordinary citizens, ordinary Canadians. We now create a process where a professional of the law will decide whether or not a jury will decide. Then once the jury decides, we'll make it difficult enough so that twelve reasonable people have to be absolutely unanimous.

When the judge is deciding whether or not to submit this to the jury, the judge must decide that among all the reasonable Canadians no one will dissent on this, because, by a balance of probabilities, the realistic possibility the judge will have to weigh if we try to be objective about this and what a judge will have to decide is if he believes there is a reasonable possibility that twelve people will agree that this person warrants eligibility for parole review.

If we're objective about that, if a judge viewing something reasonably evaluates the evidence and comes to the conclusion that possibly 10% of the population won't be in agreement with it, the judge should not accept such a review, although a majority of people who would view that case and maybe another judge that would view that case would view it differently.

So I submit very respectfully that we have a screening process that also removes the idea of dissent. People can have different views on these things. We are dealing with the ability of an individual to readapt to society. And what we had in our legislation and what we still have in our legislation is the possibility for individuals to weigh and to balance issues, to weigh the pros and cons, and to discuss among themselves and share their own human experiences to decide whether or not this individual has in fact improved and has in fact done what is necessary and required in order for that individual to become an asset and not a burden on society. So that's another concern.

And the pre-selection, I would respectfully submit, removes from the people something that the people now have, and it gives to professionals of the law something that professionals of the law now do not have. That is to say, it's a jury that will decide whether or not someone can apply to a professional and not the other way around, whereas now we have professionals deciding whether or not a jury can decide an issue. Under the guise of responding to public pressure, we're removing from the public the power that it did have. This is the reality of this legislation.

I don't want to be repetitive, but I very respectfully submit that the eight to four majority required is a standard, if you will, a requirement that takes into account the fact that this is a very human process. Many times in these hearings experts are heard and evaluations are filed and people can have different opinions.

But when a two-thirds majority of reasonable people who sit around the table come to a conclusion, we submit very respectfully that it is a fair way to do things. I say this in addition to everything that's been said before, and I'm also prepared to field any questions.

I thank you.

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The Chair: Thank you.

Mr. Langlois, ten minutes.

[Translation]

Mr. Langlois: I have very few comments to make since I share several of your concerns. I mentioned, not only to your colleagues from the CBA, but also to the groups we met with yesterday, that when I spoke on second reading, I had said that I would support the bill in principle. I am now starting to wonder.

In my view, the two-thirds rule must be maintained. This aspect is quite different from what prevails when the jury renders a verdict. Jury unanimity on a verdict is fundamentally linked to our rules of evidence and to the presumption of innocence, but the administration of section 745 is more part of a socio-legal process where different schools of thought exist. This is quite different from assessing evidence beyond a reasonable doubt. The criteria are not the same.

As a result of the unanimity rule, this possibility will be eliminated from the Criminal Code indirectly, instead of directly.

Moreover, I see the two-thirds rule as one which permits a more or less equal administration of rights for inmates throughout Canada, in keeping with the fluctuations and the various schools of thought in the country. There are provinces, including Quebec, where people are more receptive to these provisions. There is not much trouble with juries, but it only takes a jury which is already convinced that the person should have been hanged long ago or that he should have been subjected to capital punishment for that person to have great difficulty obtaining a reduced sentence. Consequently, I see no problem with keeping the two-thirds proportion.

As for what you said regarding a person convicted of more than one murder, and here we're focusing on serial killers, I prefer relying on the jury which will make a decision rather than bluntly preventing these inmates from addressing a jury.

I told the previous witnesses that we will always end up with exceptions, where we will have to invoke the royal prerogative, or royal prerogative of mercy, which are extremely uncertain procedures where more often than not political relations are used to resolve the matter rather than legal knowledge and the ability to present one's point of view.

That leaves the pre-screening process. I am not necessarily opposed to pre-screening. However in my view, if we truly want that, two amendments must be made. The first is that there must be a complete hearing. We cannot send documents which are not even in the form of an affidavit to the judge who is designated to study the case, in keeping with what is required here. Perhaps rules of practice would dictate that they be accompanied by an affidavit. In my view, there must be the possibility of hearing the other party, or the rules of audi alteram partem should apply.

Secondly, the test, for the judge, of whether or not a reduced sentence granted by the jury is a possibility, also seems extremely uncertain. I suggested earlier, and I'm doing so again, that the test for the preliminary hearing be applied inversely. In other words, the test should direct the judge.

If there is a screening process, it should be as follows: Would a well-instructed jury release an inmate or reduce his sentence? If the answer is yes, or perhaps, the application is automatically referred to a jury. So the burden would fall on the judge's shoulders.

I also totally share your view about the appeals. Crown appeals should be strictly limited to matters of law. They should especially not be extended to mixed matters or simple matters of fact.

Those were the comments I had. You may comment if you wish.

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Mr. Battista: I'd like to add something about people found guilty of more than one murder.

I think it's fundamental to take one fact into account. A jury might consider the case of someone having committed only one murder and, after 16 or 20 years, decide that that person should not be set free, or, on the contrary, be dealing with a person having committed more than one murder and decide that person should be freed or considered for parole. One of the major faults of this bill is that it removes this possibility. Some people with whom we've held discussions said that this bill showed concern for the reaction of people well-informed about a specific case.

That's also one of our concerns. When the juries are properly informed about the specific and precise facts of a case or a docket, their decision, perhaps, might not be the one an ill-informed audience might arrive at.

Mr. Marchand: I also have a comment. For the screening process, you mentioned you favoured one that would be less rigid than what is proposed in the bill. I agree, but I still think the absence of any screening process would be ideal. In looking at the statistics, it becomes clear that many inmates choose self-censorship. They simply decide, proprio motu, or based on their counsel's advice, not to put in a request.

Of 175 potential requests, there were only 74 made which means that 101 inmates did not apply. They probably thought their case would not elicit sympathy and simply decided not to request a review.

I don't see why a case could not be sent directly to a jury. That would allow someone, after15 years of incarceration, to have the possibility of being heard by a jury which would make a decision. That is my position.

Mr. Langlois: It seems to me that this is, fundamentally, a matter of informing the public who is led to believe that criminals like Olson or Bernardo could be set free in 15 years' time. Technically, it is true they could apply to a tribunal, under the present Act, to ask for a jury to be called, but we know very well that no jury would ever set them free.

It seems to me that, at the very least, we need an information campaign if people are to understand the present legislation. Some, even if they do know the facts about legislation in Canada today, still to play with the facts and say that criminals could potentially be released. Personally, I also have great confidence in the institution of the jury. It's one of the rare groups that can function totally independently.

However, in Bill C-45, I support those additional elements the jury might take into account such as the information it might receive from the victims or those around them about what went on. That's something I support.

As for the rest, preemptive screening with extremely tight guidelines might possibly reassure some part of the population that seems rather concerned at this point. It should be said that in our present Parliament, which gives a voice to this opinion, many politicians are the reflection of part of that population. They are not necessarily acting in bad faith and I would even presume they are acting in good faith. My colleague, Mr. Ramsay, often mentions those concepts and the concerns of those people, which are probably legitimate in their case. So it seems to me that if there were a screening with proper guidelines.

So, in that sense, I would be in favour of the bill but I would like to point out that, personally, I would never have tabled this bill. Thank you.

[English]

The Chair: Thank you.

Mr. Ramsay.

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Mr. Ramsay: Thank you, Madam Chair.

I want to thank you for your presentation.

I have two or three questions. If this bill becomes law, it appears to me that a serial murderer would not be entitled to a judicial review and would have to serve his 25 years before becoming eligible for parole. If that is the case, would that be considered cruel and unusual punishment and be susceptible to a charter challenge?

Mr. Battista: I don't want to necessarily repeat my colleague's earlier view on that, the caution that was put forward by the Supreme Court in the cases they referred to - I believe they referred to Luxton and others - when the whole sentencing scheme was looked at. I agree with the views that were expressed.

I understand the concern you raise. I share the concern you raise. I don't think it's a frivolous concern. However, I do not believe and I cannot believe that any reasonable Canadian believes a jury would allow people like that to be released. We don't know of any such case. Such a case has never produced itself.

It seems unfortunate, because the concern we raise is that in the individuals who are incarcerated for murder...for the exception, the serial killer, we will remove the possibility for people who may in their own lives have been victims of their life's circumstances and who may have been put in situations where they committed acts that they regret, that they would never have committed had they been in different circumstances, but which they did commit. As human beings, they have been able to find a way to amend that and to improve their lives. They may become constructive Canadians, and we will prevent them from reintegrating into society for fear that an individual whom we can all agree... I'm convinced that around this table there's not one person who really in their heart believes that someone who was a serial murderer would be able to convince a jury that they can be released without any problem. We know that.

Mr. Ramsay: Okay. The point is this: if this bill does not pass, the likes of Clifford Olson will have the right to appeal before a judge and jury and not only expend the taxpayers' dollars to do so but also cause the victims or the families of the victims to go through that agony and turmoil one more time.

To a certain extent, if Bill C-45 becomes law, that's still going to happen because there's going to be the judicial review at the Superior Court level. If the bill passes, then first-degree murderers, multiple murderers, serial killers in that position will have to serve 25 years because they will have no opportunity for a review.

I heard your comments earlier, but my question to you is: do you feel this would constitute a charter challenge based upon cruel and unusual punishment?

Mr. Battista: I'll answer that by saying yes, and I'll tell you why. In your mind, you're referring to a particularly odious individual or an odious scenario. However, the law applies to everyone. Therefore, when courts review laws and when they decide on whether these laws meet constitutional requirements, they have to evaluate what the impact of those laws are on all Canadians or on all individuals, not just on one odious individual. That's the problem with this kind of legislation.

I believe, if I'm not mistaken, that everyone who has raised concerns hasn't raised the concerns about the odious individuals. We all agree that those people are in a different class. But we're all convinced that everyone agrees, so we're not worried about that. What we're worried about is the individual cases of individuals who will fall through the cracks, individuals who otherwise juries would release because they have made amends and because they've been serving 15, sometimes18 years.

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The other thing is that you cannot discount the fact that many individuals do not present such applications after having consulted lawyers. I, myself, have been consulted and I've turned someone down and found out later that two other attorneys had given the same opinion. So all I'm saying is that we should not discard the idea very lightly. I mean, these statistics speak. When 175 people are eligible to apply and only 74 do, it should say something.

Mr. Ramsay: You have some concern about a professional, a superior court judge, deciding. He conducts the screening process. But is this not a principle that we find in preliminary hearings?

Mr. Battista: Yes.

Mr. Ramsay: So why would you object?

Mr. Battista: Because it's in the reverse. What the preliminary hearing does is to guarantee that no person who is wrongfully charged will have his or her rights put at risk. What we're doing here is deciding whether or not an individual will or will not be able to address a jury. It's the other way around.

It's as if we were telling an accused, before you can present a defence we'll have a judge decide whether the judge thinks the jury will grant your defence. Not whether or not the jury can entertain it, but whether or not we think the jury will believe your defence. If I, a judge, believe the jury will accept your defence, then I'll submit it to the jury.

This is the same scenario here. This is not a threshold where we're looking at what is being presented and asking is it in any way legally admissible, is it legally pertinent to the issue the jury has to decide? What we're deciding is what the jury is ultimately going to conclude. I, judge, believe the jury... There's no real possibility that twelve people will agree on this, so therefore I throw it out.

Mr. Ramsay: It's interesting that you put it that way, because in the preliminary hearings I've been involved in, the judge was to determine whether there was sufficient evidence to commit the accused to stand trial. I see a parallel here, in that the evidence has to be presented to a superior court judge and he will examine it to determine whether or not there's sufficient evidence to take before a jury.

In spite of what you have said, I do not see any contradiction there.

Mr. Battista: You would then have to look at the wording of the legislation. The legislation speaks to a balance of probabilities. The judge, on a balance of probabilities, must be convinced that there is...the French term is possibilité réelle. So the terms are

[Translation]

preponderance of probabilities that a real possibility exists,

[English]

on a balance of probabilities, that there is a reasonable prospect that the application will succeed. For a preliminary inquiry, that's not the test. Is there prima facie...? Many times judges at preliminary inquiries, if you've been through them, will more than likely say, I don't think this will succeed but I must send it to trial. Judges do say things like that sometimes at preliminary hearings when they make comments on the evidence, although they're not required to.

In this scenario, the judge cannot do that. What the judge has to evaluate here is, on a balance of probabilities, is it realistically possible that twelve people will be unanimous? So the parallel does not apply.

Mr. Ramsay: Okay. I have two very short and quick questions. First of all, do you know what the cost of a section 745 hearing is in Quebec? The other question is, can you explain why 93% of applicants in Quebec have been successful?

Mr. Battista: In terms of cost, I wouldn't be able to comment, to give you accurate statistics. I think, in looking at statistics of that nature, what you would want to compare are the statistics involved in keeping people like that, people who could be released... In other words, you have to look at it this way: people whom a jury would agree should go before a parole board and who a parole board would agree to release are people who could then become active members of society - that cost versus keeping them for a minimum of 25 years. So that's one element.

Mr. Ramsay: You are aware that Clifford Olson will be making application, in spite of what his lawyer might have told him. So we're going to have those kinds of cases going forward without any hope of success and yet incurring the cost. So it would be interesting, at least for this committee member, to get some idea of what the cost is going to be.

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Of course, the last question is - and I'm out of time - can you explain why such a high rate, over 90% of the applicants in Quebec, are successful? It is the highest rate in Canada.

Mr. Battista: Maybe because of the pre-selection by the attorneys. That may be an answer.

The Chair: Thank you.

Those are the bells, but I'm going to let Mr. Allmand ask a question.

[Translation]

Mr. Allmand: At the beginning, Mr. Marchand, you mentioned that your position is the same one as the criminal section of the Quebec Bar and you also mentioned that section included Crown prosecutors, defense lawyers and professors and that you were unanimous, nonetheless. Is that it?

Mr. Marchand: Exactly. This position was drawn up by the Standing Committee on Criminal Affairs of the Quebec Bar and that is the unanimous position of the Bar.

I can still hear a Crown attorney telling us he was against any change. He alleged these changes would lead to more dangerous situations inside federal institutions. He is close to the Donnacona penitentiary where there are high security inmates. He told us it might mean more danger for prison guards and that inmates should be left some hope. He has been a Crown attorney for over 20 years.

I can tell you it is a unanimous position, because in Quebec, we have no probleMs I also think that it's not only in Quebec, but also everywhere in Canada. The majority of citizens believe in the human being and in the possibility for human beings to change their ways and behaviour. We should see to it that the present legislation not be changed so that inmates will know that, with good behaviour, they will have an opportunity to change. That position is quite unanimous.

In conclusion, I would like to say that I was on the first case in Canada, at the time. I remember that, after that, I and Robert Sacchitelle, who is a judge now, went to address the inmates of the Leclerc penitentiary. We gave them the message, during the conference, that they could change their behaviour and that with good behaviour they could then avail themselves of this provision. I remember that after the conference, both the inmates and the guards came to see us and congratulate us. Even the guards approved what we had told the inmates because they thought it would lead to more security within the prison. For all these reasons, we find it difficult to see any changes to this Act.

Mr. Allmand: I would like to know if your position is the same as the Canadian Bar's concerning the process before a judge alone. You will note that in the bill, it mentions the decision should be made "based on the following documents". There is no mention of the documents being sworn. Nothing is said about affidavits. I put the question to the representatives of the Canadian Bar.

Imagine a situation where the lawyers for the other side cannot exercise their right to cross-examine. It's very difficult in such serious matters! Do you agree that it's impossible to make a decision based only on unsworn documents without any cross-examination?

Mr. Marchand: The Quebec Bar totally shares your point of view even more so because clause 745.2 mentions only documents; it doesn't even mention a hearing. On top of that, you have the problem with the affidavit. However, in Quebec, rules of practice provide that the inmate requesting review must submit an affidavit. In that case, there will be an affidavit, but the bill does not provide for affidavits for the other documents. However, the rules of practice could possibly provide for affidavits in the case of those documents but that could vary from one province to another. The bill does actually mention documents. No mention is made of affidavits. A document is a document, not an affidavit.

[English]

Mr. Allmand: A cross-examination.

[Translation]

Mr. Marchand: I don't think there would be any right to cross-examine on that. They are documents. You could always caricature the situation and say that an inmate or his lawyer could mail the whole package to a judge who could examine everything in his office, say that it isn't serious and send the whole thing back to the inmate with a comment like: goodbye, come back in ten years, sir.

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That's the kind of provision being proposed.

Mr. Allmand: Thank you.

[English]

The Chair: Thank you, Mr. Allmand.

Thank you very much. I'm sorry we're running up against a vote, but that's what we do for a living. Thank you.

We'll be in Quebec the week of September 22 on the Young Offenders Act, so you may want to get your groups organized on that.

This meeting is adjourned.

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