EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 18, 1996

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[English]

The Chair: We will welcome to the committee tonight the Canadian Police Association, represented by Neal Jessop, the president, who is also from Windsor, a good place to be from - Windsor, Ontario, Ms Clancy.

Mr. Ramsay (Crowfoot): Where's that?

The Chair: Windsor, Ontario, would be the centre of the universe, sir.

Grant Obst is the vice-president and is from Saskatoon. And Scott Newark is the executive officer of the CPA.

Staff Sergeant Jessop.

Mr. Neal Jessop (President, Canadian Police Association): Thank you, Madam Chair. It is always a pleasure to appear in front of the justice committee.

You have before you our brief. I believe it was submitted yesterday afternoon. To say the least, our brief is critical of the legislation and I think is a rather accurate history of what has transpired in relation to this legislation.

I think we should tell you upfront that our position was and remains that section 745 should have been repealed. It is obviously not going to be repealed; it is going to be amended. That is the government's position, Madam Chair, as we have studied it.

Mr. Newark will ask some questions, I hope, that if you consider them may help to clarify at least the transitional provisions of the bill. I can tell you that it is our position that we will not rest until section 745 is repealed. But we try to be straightforward in these discussions. We have already had some discussions within our own group, as much as we possibly could. We will advise those who ask us in Parliament to vote for these amendments. We will make that position quite clear. However, we will not rest until our position and that of many victims organizations is met.

In good conscience, though, we do not believe the opportunity can be missed to avoid the right of some individuals currently incarcerated to make application under this section, or at least get consideration under it.

I would like to speak to you about our feelings concerning the whole of the justice agenda of this government. Recently, through my involvement with this organization and with another that the government has appointed me to, I had occasion to learn of the difficulties with the firearms regulations and their withdrawal. That particular situation, in my view, Madam Chair, is an indication of how the justice department is reacting to important justice issues. And I hope that you, when I leave, will know how we feel about this.

We now know that we have to start over again with firearms regulations. It's something that delays the implementation of Bill C-68; it's something that's important to us, and we, as the people who have to enforce those regulations, need them as soon as possible. We need them to be sensible, sensitive and consistent with the legislation. We know that there were a number of what I call tunnellers around who are attempting to subvert that. We would ask you as members of the justice committee to get this back on track.

In relation to section 745 and those convicted of murder, we asked you a long time ago to give us a DNA data bank. What we got was a DNA warrant bill or a DNA warrant change in the legislation as a result of a schoolboy argument on the floor of the House of Commons. It was incomplete. It does not contain provisions for a bank.

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As you know, I'm a working police officer. In here are six pictures of a dead, murdered six-year-old child from 25 years ago. It is now my case. I need you to give me a DNA data bank and you don't have to go too far to get it. You can go to Britain and any one of numerous states in the United States, get the program, get the process, talk to your friends in Parliament and give us what I need to solve this case.

If any one of you saw these pictures you couldn't stay awake without getting that done for us. Believe me, if you saw them you'd stay awake until it happened. That's another failure of this government to do what it should do, what it rightfully has an obligation to do for the citizens of this country, to make provision for a DNA data bank. It is not a difficult process. It will be our next drive in a justice issue in this country. We won't rest until it's there. It's not intrusive. It's not any worse than getting your fingerprints taken.

A number of you are lawyers, some of you have been prosecutors, some of you have been defence counsel. I know that. Right, Madam Chair?

The Chair: Yes, staff sergeant, sir.

Mr. Jessop: You haven't done anything with dangerous offenders. I'm told that we're not introducing dangerous offenders at this particular point because it's not politically expedient to do so. I would suggest that this not the way we should be thinking. We should be dealing with dangerous offenders legislation. It's there. Mr. Newark sat on the committee. We all know what it should be. It should be there before you go away for the summer. I would hope that it will be introduced before you do that.

One of the things I understood you were dealing with today was to give the commissioner of the RCMP powers akin to a deity. That's Bill C-30. One of the fundamental things we need in this country is independent police officers who can act according to the law and only be called into question under a defined code of conduct or misconduct, where they have a right to the hearings that every other police officer in Canada gets. This is a justice issue. Bill C-30 limits the ability of your federal police officers to act independently, righteously, and get fair treatment. That affects every Canadian citizen in this country. It's time to take Bill C-30 and throw it out in the front yard with the construction equipment and bury it.

All of these situations have led us to a point where we are very, very displeased with the justice agenda of the Liberal government. Section 745, in my view, is an expedient revision of the section. It was meant specifically to deal with the likes of the Olsons and the Bernardos and not treat seriously those persons who are incarcerated, who are just as dangerous but whose names are not as prominent to the Canadian public.

Having said all that, it's a little better than we had before. We will ask members of Parliament to support it as far as it goes, but don't expect us to go away on the issue. My friend, Mr. Obst, would like to speak to you about the feelings of Canadian police officers.

Mr. Grant Obst (Vice-President, Canadian Police Association): Madam Chair, members of the committee, my name is Grant Obst. I am a constable with the Saskatoon Police Service and I've been a police officer in the province of Saskatchewan for 13 years.

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I consider it a great privilege to be able to sit before you and attempt to tell you a little bit about how police officers in this country view what's happening in Ottawa in the government. I sit here and I'm in awe of my surroundings. I'm somewhat of a fish out of water.

I thought perhaps it would be appropriate for me to try to explain to you what my world is all about, where I work and what it entails. A segment of my work is somewhat dark. It contains a certain amount of pain and suffering. It's saturated with drugs and alcohol. It's a world of guns and knives. It's a world of every other conceivable weapon you can think of, and probably many you've never thought of. It's a world of blood and guts spilt on the streets of the community I and my colleagues serve. It's a world in which we constantly deal with people who have little respect for property or other human beings.

It's a world where, unfortunately, I occasionally have to inform a wife that her husband is dead. I occasionally have to inform a mother that her son is dead. I occasionally tell a brother that his sister is dead.

It's a world of grief, suffering and mourning. It's a world of loss. It's a world of lifetime loss, not 15-year or 25-year loss. It's a world of lifetime scars. It's a world where, a lot of times, I and my colleagues have to attend the funerals of our colleagues who are struck down in the line of duty by other human beings.

Part of my world entails murder. Section 745 is directly related to that part of my world.

It's impossible for me to adequately describe to you a murder scene. Without being at the scene of a murder, you would be unable to experience the horrific sights and sounds or the gut-wrenching smells that go along with that part of my world.

I'm sure many of you have lost loved ones through illness and accident, so you know somewhat of the feeling of losing a loved one. My world entails dealing with victims who have loved ones yanked from them through the most reprehensible crime that can be committed against mankind: murder.

It's a lifetime of loss for them. It's not a 25-year loss and it's not a 15-year loss. There are no judicial reviews or section 745 hearings for victims of murderers or for their families. There are no second chances for them. There's nothing to make their life whole again. There's no section of the Criminal Code that relieves their pain.

I sat through section 745 hearings in my jurisdiction, and I've become very close with the family of a murder victim. I've seen what these hearings have done to them. I've spoken with police officers, my colleagues across this country, and it's nearly unanimous that section 745 has to go. That comes from those of us who have experience with murder, murderers and victims.

I'm not talking about people convicted of murder in a case in which they've been the victim of spousal abuse, either emotional or physical. That's not first degree murder. That's going to be second degree murder or something less. I'm not talking about manslaughter. I'm not talking about impaired drivers who kill people.

I'm talking about people who plan, calculate and premeditate murders. That's first degree murder. It's hard to get a first degree murder conviction these days, but I and my colleagues continue to work out there gathering evidence to try to make cases against first degree murderers and put them behind bars to try to protect the rest of society.

When we talk about first degree murderers within the correctional service, there are very few. They are probably less than 10% of the inmate population, so we're not talking about a large faction of people here affected by section 745.

We, as police officers, don't think that the answer to all crimes is to lock everybody up forever and throw away the key. We actively work toward rehabilitation, working with young people, etc. I want to be clear that I'm talking about first degree murderers here.

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Section 745 directly conflicts with section 742 of the Criminal Code. Section 742 of the Criminal Code, of course, tells us that the penalty for first degree murder is life imprisonment with no chance of parole for 25 years. That's what my colleagues and the people I serve have been told for years.

Recently, it has come to light that this is not the case. I can tell you that they feel deceived. Section 745 creates disgust and distrust in the criminal justice system. To a large extent, it's becoming increasingly difficult for me and my colleagues to defend the criminal justice system we work for, believe in, and want to believe in.

Victims' families across this country are becoming horrified, perhaps not on a daily basis, but on a frequent basis, as these hearings begin. They were told it was life in prison with no chance of parole for 25 years.

We need you to reinstil confidence in the criminal justice system. We need you to make the changes that will allow us as police officers to defend this system. There is no better system. We know that. We need the people we serve to have confidence in the system, and section 745 defeats that.

The current bill, although it's a watered-down version, in my opinion, is a move in the right direction. I would echo Mr. Jessop's sentiments that we will attempt to get whomever we can to support it, because we believe it is a move in the right direction. Our position has been, is, and will be that section 745 has to be repealed in its entirety. We're not going to go away on that. We ask that you further consider that. Thank you very much.

Mr. Scott Newark (Executive Director, Canadian Police Association): My understanding of the capacity of the committee, inasmuch as you are considering both Bill C-45 and Mr. Nunziata's bill as well, is that the option at least remains open, should you choose to do it, to recommend, by vote, the repeal of section 745.

Ever the eternal optimist, I'm going to take a bit of a stab one last time at trying to demonstrate the rationale as to why it makes sense that the repeal is the appropriate disposition here, as opposed to the amendments.

I obviously echo the sentiments of both of my colleagues here such that we think these are improvements. The system will literally be better, from our perspective, if Bill C-45 is passed than if it isn't passed.

The point I want to start with is that our justice system has traditionally developed principles of sentencing. You can go to any court of appeal in any province and you will find those principles of sentencing enunciated. They include rehabilitation. They are not exclusively rehabilitation; they also include general and specific deterrents. I know there are counsel here who are as familiar with this as I am. It also includes denunciation. Every sentence, from shoplifting to first degree murder, is a blend of those principles. In the Alberta Court of Appeal, the phrase they used to use was that it was a wise blend of the principles. Every single sentence we impose, that's what we do: we blend in those principles.

In some, over the passage of time on some crimes, we define parameters for what that mix should be. On the smaller end, for example, on summary conviction offences for causing a disturbance, we don't think a life sentence is appropriate, so we actually put a limit on it and say that the blend of principles in there is such that there is a maximum sentence that can apply. The blend goes in, but there's a maximum in there.

It works conversely as well, for example on repeat offenders who are drunk drivers. The crown serves a notice in which we say that the blend of principles is defined by the people of Canada through their elected representatives to be this sentence.

That is what we have done with first degree murder. It sounds corny, but the people of Canada, literally, through their elected representatives, define what that mix of principles should be. We said that it was life with no parole for 25 years. As you know, on murder itself, we defined it as a life sentence with a sort of sliding parole ineligibility scale. We further categorized it to first degree murder, all the while having the beyond-a-reasonable-doubt test involved in that.

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Then, as a people, we said this is what the mix should be for us to express the specific deterrent to the individual who is there and for general deterrence for others who might consider it. To have a hope of rehabilitation but also to denounce the conduct, we picked 25 years. In fact, to be quite blunt, I think it was actually your predecessors in the Liberal Party who did so. Grant mentioned it's in section 742 where it does that, but three sections later we contradict what is there.

So with respect, I would suggest you should be considering either repealing section 745 or repealing section 742. Either way, you're going to restore some integrity to the criminal justice system. I can't echo strongly enough that what lies at the root of the problem about this section is the sense of contradiction that's implicit in the way this section works.

If you truly believe that fifteen years is the point.... And don't forget, a life sentence is inherently a discretionary sentence. People don't necessarily get out at fifteen years or at 25 years. A parole board makes a decision. It reviews all of the circumstances to decide whether the individual should be released. If you pick fifteen years, go ahead and do that, and frankly, leave it up to the people of this country to either decide they share your judgment that that's what the penalty should be or make it 25 years.

Section 745 contradicts fundamentally not only public confidence but the entire philosophy of how our criminal justice legal system has grown. You have the opportunity, although in this abbreviated time period, to actually do the right thing and not simply find some expedient path that, let's be blunt, is going to deal with Clifford Olson and avoid some of the problems that are going to arise out of that case.

I hope there are some questions about the philosophy of what I just tried to explain, no matter whether your position is fifteen years or 25 years. It's about that principle that for once the justice system actually does what it says.

I'm not sure about one point, and I'd like to deal with it perhaps later in questioning, Madam Chair, but I certainly think the amendments make the system better than what it is right now.

The analogy I used was it's sort of like giving a Tylenol to somebody who's dying of a preventable illness, emphasis on preventable. We can deal with this situation. If it's necessary that by repealing section 745 this government then decides it wants to redefine what the penalties on parole eligibility for murder are, then go ahead and do that and add it to your list.

You have the opportunity, in the three days left - and I address this specifically to the Liberal members of this committee - to actually do the right thing. I would urge you to repeal section 745.

Thank you. We'll try to answer any of your questions.

The Chair: Just before we get to those, you have some concerns about one section. Why don't you let us know what it is?

Mr. Newark: Sure. It's the transitional clauses, in particular clause 5. I see there's somebody here from Justice, so perhaps they can answer it. It's in relation to proposed paragraph 745.3(1)(d), which is on victim statements or victim information. It's the list of criteria that the screening process and ultimate review can consider.

The Chair: Since I stopped practising, they've made the type a lot smaller on these things. I'm having some trouble finding the page. I need somebody to hold it across the room for me so I can read it.

Mr. Newark: My concern is on clause 5 of Bill C-45, which I take it is one of the transitional clauses. I presume I must just not be reading this correctly, but it looks to me as though it potentially excludes victim information from section 745 screening hearings or judicial reviews, other than for new offences.

If that's the case, it contradicts the Swietlinski case in the Supreme Court of Canada; it contradicts the provisions that were contained in Bill C-41; it contradicts every statement I've ever heard Mr. Rock make about the intention of allowing for that sort of more balanced approach.

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I hope I'm wrong in my interpretation of the section because I can't for any reason think of what the rationale would be to exclude that information.

The Chair: You're the second person to raise it today. Mr. DeVillers raised it earlier. We'll make sure it's brought up during clause-by-clause so that we at least understand it, and if we have to deal with it, we will.

Mr. Newark: Yes. Thank you.

The Chair: Okay. Mr. Langlois, 10 minutes.

[Translation]

Mr. Langlois (Bellechasse): Good evening, Mr. Newark. I found it easier to follow your argument today. During consideration of Bill C-30, formerly Bill C-58, which stipulated that officers in the RCMP would not be covered by the Canada labour Code, my colleagues in the Official Opposition and myself defended the right to collective bargaining and unionization. I have a little more difficulty understanding the demands that you're making, but they are quite legitimate and very clearly expressed. They demonstrate that there is a normal split in society. In the final analysis, choices must be made.

As I said this afternoon, essentially, we did not receive any explanations on section 745. Governments in general did not explain to the public what section 745 was all about.

It was introduced in the Criminal Code more or less at the last minute, in exchange for support on the abolition of capital punishment. It was not in response to any longstanding expectations. In June 1976, 20 years ago, Parliament was on the verge of rejecting the bill on abolishing capital punishment. At the time, deal-making between Mr. Trudeau, some of his MPs and opposition MPs meant that there eventually was a majority, but on condition that there be a more severe sentence for people found guilty of first degree murder, that is a firm sentence of 25 years. So we had this sort of hybrid section, it looks like a crossing between an hedgehog and a snake, which produced a sort of barbed wire that prisoners have been stuck in for 15 years.

In fact, I never found the way all this was developed to be particularly eloquent. Negotiations took place in the backrooms of Parliament, or probably elsewhere. However, we've been living with the results for 20 years. It may be lame and it may require explanations. People probably need to understand and know that there is virtually no chance that a reasonably enlightened jury could release notorious criminals, even though theoretically they have the right to apply for having a jury to examine their case, be it now, soon or in a few months.

There is certainly a segment of the population that believes that people like Clifford Olson could be released and will be released. I don't doubt for an instant that this is worrisome for these people. I myself would be worried if I was not familiar with he rather complicated mechanics of this process.

Section 745 lacks simplicity, and we are not on the verge of making it any better. On the contrary, it's been complicated further by adding a first selection stage to these cases, by requiring that the decision of a jury be unanimous and by preventing people found guilty of more than one murder from invoking section 745.

One of the members of the Canadian Bar Association pointed out this afternoon that some people may have committed two murders concomitantly in a situation of domestic violence and that they may deserve to be released after 15 or 20 years, whereas other people who committed a single murder but in aggravating circumstances should spend their entire lives in prison.

As we have said and repeated, it must also be recognized that life imprisonment is life imprisonment and that a person who is released is always on parole and always runs a risk of being put behind bars if he or she breaks the law of the land. That should be better understood so that the general thrust of the Criminal Code gain greater acceptance. There is surely some resistance somewhere, but I don't think that acting in a precipitous manner can shed light on anything at all. We would simply be adding to the confusion.

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If this bill were adopted in its current form, I fear there would be inconsistent application of the rules of law in Canada. This rule of unanimity frightens me because in some provinces of Canada where there is less resistance to section 745, people would be released, whereas in other provinces, they would not. If the rule of law applies differently because the perception is different, we would not have progressed at all; we would even have regressed.

When the bill to abolish capital punishment was tabled and adopted in 1976, if section 745 has not been included at the last minute, people found guilty of first degree murder would have been eligible for parole after 10 years. In fact, at the time, the average for people with a life sentence was 13 years and some months. Therefore section 745 was made more stringent. Perhaps some compromise was struck.

I can't say this section makes me very happy. It's a rather shaky section of the Criminal Code, but seeing that there's nothing better and seeing that it can't be amended substantially in committee, I will stick with it. However, I'd like to give you one last chance to convince me.

[English]

Mr. Newark: You mentioned Clifford Olson. What I think bothers a lot of people is not the fear that Clifford Olson is going to get out, but it's the sense that the criminal justice system allows for an individual like that to have that hearing. You made the point, sir, as Mr. Rock has done with me, that he's not going to get out. Then why do we have the hearing? Why do we spend the money that we spend to do this?

In your remarks, I might even agree with the point you're making about what the penalty should be or not do anything else. All we're trying to suggest, and you expressed it yourself when you said it was so unclear, is let's have some clarity, some certainty.

Mr. Langlois, if you think, and you may be right, that the penalty should be 15 years or 10 years or whatever it is, let's allow people to decide that. What Parliament can do here is take a leadership role in that, frankly, and do that.

You don't have that ability, as I understand the procedure right now, to do that, but you can get rid of the uncertainty tonight. You can do that. Then if you can convince people here or in your own ridings that the penalty should be whatever it is of that mix, then so be it. But at the very least, for once we'll have some real truth in sentencing.

[Translation]

Mr. Langlois: I'd like to make a comment. Mr. Newark, I would never suggest that, for the crime that may be perceived as the most serious in our society, namely premeditated murder, the sentence should be anything other than life in prison. Having said that, we have to now add the nuances that could come up, while the sentence is being served. It's like a musician who writes a piece and who starts by drawing a stave and then adds the clef, either g, f or c, and then adds flat or sharp. We are drawing the stave: that's the sentence, life in prison. Now we're adding the flats. In the case of an exemplary citizen who served 15 years of his sentence, whose chances of committing another offence are just about nil and whose behaviour demonstrates that he can reintegrate society, there's still a risk to be taken. Does society, as represented by the jury, agree to take this risk? But I'm not prepared to reduce the sentence which, in this case, should be life in prison.

Mr. Newark: There is a process in place now; and that is

[English]

parole board. It's already there. Why do we need to have a separate process called a judicial review created by section 745?

You're right. These sentences are discretionary. They're life sentences. It could be that somebody's going to be there for the rest of their life. We already have a process that we paid zillions of dollars for in the National Parole Board. Why don't we use that? Why intrude this extra step along the way? It costs a whole lot of money, by the way, too. Why not leave it so that's what it is?

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The other point about your assessment of somebody's rehabilitation is all very well, but it's what I was trying to get at in the beginning. When someone is sentenced, I think I put in the brief that the first 25 years of their sentence people convicted of first degree murder are in prison for what they've done, not what we think they have become.

I go back to that principle again about those mixes of principles. There's a reason why it's called Regina versus so-and-so and not with respect to the fact that it's in Saskatchewan. It's because it's the public interest and the public interest requires consideration, as we've done in the law, of deterrents and denunciation.

I don't disagree with you about the notion in the sense of assessment of risk, but when somebody is sentenced, especially on first degree murder, there's a whole lot more at stake than just our perception of what the offender has become. We codified that in law and said it was 25 years. If we're going to change the law and make it 20 years or 50, let's do that, but let's get rid of this compromising that takes place of the original principles that we set out at 25 years.

The Chair: Thanks, Mr. Langlois.

Mr. Ramsay, ten minutes.

Mr. Ramsay: Thank you, Madam Chair, and gentlemen, thank you for coming and making this presentation to us.

We received a notice from Mr. Newark urging us to support this bill yesterday. This is very short notice since the bill was tabled. Have you been able to canvass your people to determine whether or not the majority of your organization supports this bill?

Mr. Jessop: Mr. Ramsay, we've spoken about that before.

We are the elected representatives of 40,000 police officers across this country. I'm sure you don't canvass your constituency, each and every one of the people who voted for you or didn't vote for you, when you take a position.

Our position on this is very simple. It has received consideration from our membership. We will be either applauded or criticized at our annual general meeting in September in relation to whether or not we took the right position.

We are, however, practical people. We have been engaged in this business for a long time. I'll tell you how practical I am in relation to this.

The day after some individual completes his 15 years, he is going to apply for a hearing. This time his hearing is going to go before a district court judge, what we used to call a county court judge. We have some faith in district court judges in this great country of ours. They are generally quite competent. They have time problems like anyone else and I would expect, to be very practical with you, that it may be 16 years, 16 and a half years, or 17 years before the judge makes his decision as to whether or not a hearing should take place. Quite frankly, that's a positive in our view. Then when a hearing does take place, if it takes place in a case where there is not a multiple murder, the jury in all cases is going to have to be unanimous.

We've all had experience in our jurisdictions with these cases. Some have been granted. For the most part, they were granted on an eight-to-four basis or less.

We believe that more bad people who have potential of doing harm to our society will be kept in jail as a result of this legislation.

We've had these discussions before. We take our responsibilities quite seriously. We consult with our members. We do the best we can, and we cannot, any more than you can, go back to our members on an individual basis and ask that.

If I'm wrong, if my board of directors is wrong, if Mr. Newark is wrong in taking this position, which we believe is one of responsibility, by this time next year I won't be here, because somebody else will be talking to you. I know a lot about the electoral process; I've been involved in it for 20 years with the Police Association.

Mr. Ramsay: We just had a vote on this bill and we voted against the bill. It's because of the contents of the bill, as well as the fact that our delegates at our convention a couple of weeks ago voted 98% for the entire repeal of that section.

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We had witnesses appear before us yesterday and today and we have heard a constant message that this thing is being rushed. Some of the witnesses have not had time to prepare briefs for us for our consideration. They've given their testimony without briefs.

I guess the point I would like to make is that we have heard from the Canadian Bar Association, the Montreal Defence Lawyers Association, the Quebec Bar, and last night we also heard from the Canadian Association of Chiefs of Police. But in particular the witnesses today, the legal minds, have literally taken this bill apart. From what they have testified about this bill, I would have grave concerns about it even if I was not opposed to section 745. In view of that, I am concerned that your organization is asking members of Parliament to vote in favour of it.

I only have a short time, but let me give you an example of that. They have claimed that if C-45 becomes law, serial murderers will no longer be able to apply for a review and therefore they'll have to serve their 25 years. And we were advised today that could result in a charter challenge on the basis of it being cruel and unusual punishment.

Mr. Jessop: I don't mean to interrupt you, but to be very honest with you, I have little sympathy for that argument. The more serial murderers they keep in for the longer period of time, the better. If this legislation does that, and I believe it does, then I would take all the charter challenges they want.

Mr. Ramsay: But, Mr. Jessop, that's not the point. We have to examine the constitutionality of the law. That's one of the issues we have to examine. If there's something constitutionally weak about the bill, we should be looking at that and we should be taking that into consideration.

I'm of the same viewpoint. I would like to see that issue challenged and see whether or not 25 years is cruel and unusual punishment, prior to eligibility for parole.

Mr. Newark: Could I just intercede as well? I think you can probably tell from the brief.... Perhaps I'm naive, but I think this is not the way most of us, irrespective of our positions on section 745 or anything else, think Parliament is supposed to work.

Having notification on Monday, when I was actually out in Alberta, that the bill was going to be introduced on Wednesday, when this committee has had the bill and Mr. Nunziata's C-226 since December 1994, if memory serves me correctly, when all these issues could have been canvassed, is exactly the point. I say that, irrespective of whatever your viewpoint is on section 745 or anything else.

It had been the case that parliamentary committees were supposed to have the time and ability to analyse legislation. Let's be candid, these are not exactly idyllic circumstances in which to do that. We are rather pragmatic, however, in looking at the content of the legislation. As you well know, sir, basically anything that in any way has any effect whatsoever in terms of public safety will be challenged under the charter. And that's not a basis, in the sense of saying that there's a potential charter challenge, to not go ahead.

I share not only what I would call your frustration, but frankly, as a citizen, the outrage at the process that is being foisted on people when the opportunity to do a proper job was present for over a year. And that's true not only on this bill; that was the case last year on DNA search warrants that resulted in another sloppy piece of legislation without a DNA data bank attached to it.

I share the philosophy, but our point remains the same on analysis of the legislation. Quite literally, I think it is, in our perception, that the situation will be better after this bill is passed than if it were not passed. Although we stridently try to emphasize that the right thing to do here is repeal 745 and have the justice department, if it chooses to, get on with drafting new penalties for murder, that's a choice that rests I suppose with your colleagues on this side of the table.

Mr. Ramsay: On another issue, do you have any idea what a section 745 appeal costs?

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Mr. Newark: The review?

Mr. Ramsay: Yes.

Mr. Newark: That's a very good question. Each one obviously varies. I tried that once on sort of a thumbnail basis by looking at the time we had been involved in the hearings and the CSC participation in the courtroom.

It's a very ballpark figure, but my sense is that I would see difficulty in how these things would cost any less. The range I'm going to give you is between $50,000 and $100,000 a hearing. That would not be for one of the more sensational hearings, such as someone like Mr. Olson, which would cost millions to the taxpayers.

Mr. Ramsay: We have heard testimony that these hearings take longer than the original trial.

Mr. Newark: Yes, that's my experience.

Mr. Ramsay: I have one last question, which is on consultation. Was your organization consulted by the justice department in the preparation of Bill C-45?

Mr. Newark: That's a difficult question to answer. We have had.... I can tell you that I personally have had discussions with Mr. Rock and his staff for probably six months.

The fact that they were not going to repeal, but instead likely tinker with it this way, doesn't come as a particular surprise to me. The formal consultation we had with the Department of Justice with some other people who are in the room here, I would respectfully describe as a sham, which is based on inaccurate documents that were prepared. Our consultations really have been with the minister, and they have been on the subject areas contained in this bill. All the while, we were urging him not to do this, but instead to repeal the bill.

The Chair: Thank you, Mr. Ramsay. Mr. Discepola.

Mr. Discepola (Vaudreuil): Thank you, Madam Chair.

Mr. Newark, do you feel there should be a minimum threshold in the appeal process of a person who's sentenced to life in prison? I'm very confused with all your testimony. You seem to say that maybe what we should be saying is that there should be either a 10-year, 15-year or 20-year period, let us decide, and let's have a public debate about it. What's your position on it? Are you saying that there should not be a point in time at which somebody who's convicted of first degree murder should have an appeal process?

Mr. Newark: I'd be perfectly satisfied with what section 742 of the Criminal Code says. What I don't like is that it's contradicted three sections later. It would be nice if, when somebody was sentenced for murder, the judge was able to tell the truth. Right now, sir, when judges say they sentence someone to life imprisonment without eligibility for parole for 25 years, that's not true.

Purely philosophically, from a position of integrity, it would be a good thing if a judge was able to tell the truth in this country about what was going on. Now whether that's 15 years or 25 years - I obviously think it should be 25 years - the point of it is that it should be one thing or the other. It shouldn't have this contradiction built into it created by section 745.

Mr. Jessop: I was around, fortunately or unfortunately, when this whole process took place. People didn't really take into account the magnitude of the effect of section 745 in 1976 because in effect nobody had to deal with it for 15 years. Between 1976 and 1991, all of those people started to become eligible for the special hearing that applies to no other area of the code.

Mr. Discepola: But as Mr. Langlois pointed out, it was a compromise in an attempt to get rid of capital punishment. The statistics are very clear. Only 40% of the eligible inmate population even applies. Of those who do apply, very few of them - none I am aware of - who have been released on a section 745 have committed a serious offence.

Mr. Newark: Actually, that's not true. It's running at about a 20% failure rate. And one of them has been charged with armed robbery.

Mr. Discepola: It's one out of 19. So if you say that's 20%, fine.

Mr. Newark: No, there have been 25 National Parole Board documents. When the chairman of the National Parole Board was here, 26 people had been released. As one of them is dead, the pool is 25, for comparison. Of this number, three have been returned for a violation of conditions, one was charged with armed robbery and we don't know where one is.

Mr. Discepola: Let's say we repealed section 745. How would it help the police officers do a better job?

Mr. Newark: I think that at the very outset it would restore some notion of credibility and integrity to the overall criminal justice system.

Mr. Discepola: Answer my question, though: how would it help them do a better job if we repealed it?

Mr. Newark: I think it would first give a bit more of a message to people in terms of deterrence. If you kill a police officer or somebody, and it's first degree murder, or if you kill on second degree murder and it's more than 15 years, then that's what your sentence is going to be. That's called deterrence.

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Mr. Discepola: But there are statistics in the United States that clearly demonstrate that even in the case of capital punishment, it is not a deterrent for preventing somebody from committing a murder, for example.

Mr. Newark: In this country, when we abolished capital punishment, the homicide rate rose from when we last imposed it. It more than doubled. That's a statistic that the justice department often doesn't like to deal with, but it happens to be true.

What happened is that after about fifteen years, it then levelled off. It has remained relatively constant. Now it's dropping. But from the time when the last execution took place in this country, the homicide rate in this country more than doubled, sir. That's a Juristat statistic, a Canadian statistic from your government.

Mr. Discepola: But you seem to criticize our efforts. I think our efforts are very valid.

You talk about legislating, that the laws should be for all criminals really and that they should be treated the same way. When you bring up extreme cases like Olson's, for example, I think it's very difficult as a legislator to try to legislate for a specific case in his instance, for example.

Mr. Newark: That is what you're doing here with this bill, you know.

Mr. Discepola: Indirectly, you may say, but I think what we're also doing is putting teeth into the law. The screening process prevents that court process that you alluded to before. The appeal process, for example, could be costly.

The unanimity of it, in essence, in my opinion, puts in a check and balance. You state that you would like to see that whole process bypassed and just leave it up to the parole board. I'm saying that having both assures the public that there's a check and balance in it if the person has to first go through a court process whereby 12 people unanimously approve the process, and then in addition to that, they must apply to the National Parole Board. So I view that as a check and balance.

Mr. Newark: Then why don't we do it at 25 years?

Mr. Discepola: That's the debate we're having. You said that you spoke to your colleagues. I'm familiar with Correctional Services and I have spoken to the law enforcement officers. If it wasn't for such a faint-hope clause, as we call it.... They are very concerned for their safety.

Mr. Newark: I spoke to my equivalent in the corrections union, the guards, and he told me that frankly, sir, that's a crock. In fact, the guards are the people who are not concerned for their security at all.

If you think about it for just a second, a life sentence is a discretionary sentence. There's no guarantee that someone's going to get out. The only difference that is going on here is that we're sliding the scale back from 25 down to 15. It doesn't make sense that somehow it's a faint hope at 25 or a faint hope at 15. Pick a number.

Mr. Discepola: In my own mind, the more I get into this very emotional debate, you realize the more we should be looking at two issues. One is the justice issues when it comes to the treatment of criminals. Also, I think we may be lax on the issues when it comes to victims and their rights. I think the two should be separate and distinct.

When we start looking at criminals and how we treat them, we should keep that very objective so we can rationally arrive at a consensus. But I think right now we'll try to focus the debate on both. Right now, I think maybe the balance is weighted on one side. The victims don't have very much protection. That you all concede.

Mr. Jessop: With respect, you're correct.

I'll get back to your question about how it affects us as police officers in doing our job. Those of us who deal with these types of crimes regularly are always faced with the victim who comes to us and asks, before or after a conviction, how much time he will do. I have to say to them that the sentence is life, but he will do 10 years, maximum. That's in some cases. I've had them go from 10 to 15 to 17 to 18 to 25, depending on what the recommendation is in second degree cases. First degree, of course, is what it is, but it's still only 15, and they know that as victims.

So if you think you can separate the issue, I presume you heard all of those people who came before us today. You cannot do so. It's impossible.

Mr. Newark: You know, by the way, sir, that it's not even 15. Section 746 starts the clock running from the time of arrest, if the person's in custody, which is usually the case. So it's not life; it's 25. It's not 25; it's 15. It's not actually 15; it's usually something less than that because of -

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Mr. Discepola: I'd like to ask a few questions on DNA.

Mr. Jessop, you have a case in front of you. Say it's 25 years and unsolved. What prevents you today from doing DNA now in trying to solve the case?

Mr. Jessop: This case, as of 1993, was sent to the Centre of Forensic Sciences in Toronto. This was the sexual killing of a six-year-old female. They wrote back and said that we had a sample here such that in a few years they will be able to determine the DNA analysis of it.

Mr. Discepola: Was it a sample of the victim or the suspect?

Mr. Jessop: It was both from the victim and a hair that was found at the scene.

Mr. Discepola: So why can't you solve the crime if you've got a victim and the sample of the -

Mr. Jessop: I could if I had a data bank, Mr. Discepola.

Mr. Newark: You need a match, sir.

Mr. Discepola: But you have a hair of the potential suspect.

Mr. Jessop: We don't know who it's from.

Mr. Discepola: Okay. So how do you then -

The Chair: Could just one witness answer at a time? I know, Mr. Newark, that you like to get in there, but I know that Staff Sergeant Jessop knows an awful lot more about this than almost anybody in the room.

Mr. Discepola: So you have a hair, and you don't know who it belongs to?

Mr. Jessop: No.

Mr. Discepola: So our problem in establishing a data bank - I think there's a general consensus that there are tremendous merits in it - is how to go about establishing it. It's very costly, and unless you have thousands and thousands of samples.... This is what's going to take the time, with an associated cost.

It's fine to criticize us and say that we're not doing something about it, but at least through the changes we made in our bills, at least through warrants, you're able to obtain the samples. At least you're able to solve some crime in which you do have a match.

But for us to go backward in time or even.... How do you establish a data bank as you so choose?

Mr. Jessop: We've obviously made our submissions on that. Mr. Newark I hope will tell you exactly what those submissions were.

It's very simple. It's the same kind of a system as fingerprinting. Presumably, we heard the first argument about fingerprinting in the same way: how do we start? What you do is turn the key and you start. You start with the first person arrested tomorrow on whatever offence he or she is arrested for. You take two samples instead of one. You take fingerprints and you take DNA. That's what the British have done. In many cases in the States, that's what they've done.

Mr. Newark: I can give you the specifics, sir. Six months ago we submitted amendments to the Identification of Criminals Act to Mr. Gray on how to do this. It's still not done.

Mr. Discepola: I agree. It's inconceivable for us to go back and take the whole inmate population, for example, and start fingerprinting them. You're going to have to start like we did with fingerprints.

The Chair: Gentlemen, I don't want to be difficult, but we're at about 12 minutes on this witness, and we're off topic. So why don't we cut it here and move on with our schedule?

Mr. Discepola: All right.

The Chair: I want to thank you for coming. It's always helpful. We'll see you soon. Thank you.

Mr. Kirkby (Prince Albert - Churchill River): I have a legal opinion provided byMr. Ian Binnie of McCarthy Tétrault. It was just received a little over an hour ago by the justice department. It has not yet been translated, but it is being translated.

I was just wondering if I could table this with the committee with regard to section 745. It's a legal opinion on section 745, the amendments that are being proposed, by Mr. Ian Binnie. He's a renowned lawyer in the country, a litigator, and has also appeared before the committee on a number of occasions.

Mr. Ramsay: Is it a submission on behalf of him as an individual?

Mr. Kirkby: Yes, exactly.

Mr. Ramsay: Okay.

The Chair: Thank you.

Mr. Jessop: Thank you, Madam Chair. Thank you, members.

The Chair: We'll break for a couple of minutes while our next witnesses get in line.

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The Chair: Order, please. Can we have our next witnesses at the table, please?

Mr. Ramsay: Do we have the document that Gordon brought in?

The Chair: It's being photocopied.

Mr. Langlois, did you appreciate the import of that? They have a legal opinion that's being translated into French right now and that they'd like to table in English, but the French is on its way. Do you have any problem with that?

Mr. Langlois: No.

The Chair: Thanks. I'll take that as a no, that you don't have any problem. That's good.

Mr. Langlois: Let it circulate that I have heard nothing.

The Chair: All right, thank you.

I made an error earlier when we were setting up the witness list. Mr. Green, who is present with us, had indicated a wish to appear before the committee. Unfortunately, he spoke to someone who spoke to my staff who spoke to me and through the translation I thought he was saying that he wanted to file his letter and not appear. So we've straightened that out. Mr. Green is here now and the Elizabeth Fry Society has agreed to share their time, but not all of it.

I'm going to leave it up to the two witnesses. I will say that we have with us Kim Pate from the Elizabeth Fry Society and Mr. Mark Green, who is an articling law student in Windsor.... No, Windsor's the centre of the universe; this is Ottawa, the centre of the country. Whichever one would like, please go first.

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Ms Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): Mark will go first.

I would like to thank you very much, Madam Chair, for inviting us both and for getting the message to us today so that we could take advantage of this opportunity. We were able to get child care fairly quickly.

The Chair: Thanks.

Ms Pate: Just for those who aren't aware, Mark is my partner, so I don't want it to be misunderstood or misconstrued any other time. Thank you.

The Chair: Mr. Green.

Mr. Mark Green (Individual Presentation): The reason I wanted to come and address the committee is because of a personal situation that arose in my life a number of years ago. I grew up in Peterborough, Ontario, and in 1971 my father was killed in an armed robbery. My father partially owned and managed a hotel in Peterborough and was killed while performing those duties. I was 17 years old at the time and, as you can imagine, it was a very devastating situation for me and the rest of my family. I have two younger brothers and my mother was alive at the time.

As a result of that situation and what happened in my life, it had a large impact on what I did after that. The reason I wanted to share with you what I did after that is because I don't think it's what you would expect. I did not come away from that situation vindictive nor with a feeling of wanting to punish offenders.

I went to university, graduated with a master's degree in criminology and went on to work with offenders for a period of approximately 13 years. I worked with the government here in Ontario for a short time, I worked with the government in Alberta, and then I worked for a number of years with the John Howard Society, who you're probably all familiar with.

The whole purpose and the reason I did what I was doing was because I hoped that the work I did with those offenders, with those prisoners, would help in terms of preventing them from getting involved and doing the type of thing that happened to my father. That's what I thought was an effective way of dealing with individuals who had been involved in criminal activity. To punish them, to send more and more people to jail, from my upbringing and from my experiences, it just didn't seem to be the answer. And my personal experience didn't change that.

I guess I have to attribute part of that to the way I was brought up by my father, who was victimized, who was a very community-oriented individual, and who worked endlessly in the community. I couldn't see him wanting that sort of retributive attitude that I hear being discussed in terms of the changes that are being proposed for section 745. I can't imagine that my father would have supported capital punishment, although that's another issue.

I'm here to say that there are people who have experienced great losses in their lives who don't necessarily feel that the punishment of offenders and criminals is the answer. I think individuals like myself who have dealt with that loss don't speak up. We've gone on with our lives and we've dealt with them in whatever way, and we don't come forward. It's not like I've talked to a lot of other people who share my experience, but I guess I feel that is the case, that there are many other people who have suffered personally and who don't hold a retributive attitude.

I think that with some individuals who have experienced losses there is certainly a feeling of loss, there's a feeling of grief, and I went through that as well for a period of time.

I guess that's what I want to say. I'm not sure if you have any questions, but I'd certainly be happy to answer any questions you may have.

The Chair: Thanks, Mr. Green. I don't know, but I'll leave it to the two of you if you want to separate your presentations. Would that be your view?

Ms Pate: Sure, or I can proceed, however you'd prefer, Madam Chair.

The Chair: There may be some questions for Mr. Green, so let's do that. I just have to do a little calculation here. You'll hear the wheels grinding.

Mr. Langlois, five minutes. No. Mr. Ramsay, five minutes.

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Mr. Ramsay: Mr. Hanger.

The Chair: Mr. Hanger, five minutes.

Mr. Hanger (Calgary Northeast): I have nothing right at the moment, Madam Chair.

The Chair: All right.

Mr. Hanger: It would be good maybe to hear from the second speaker.

The Chair: We're separating the two presentations, so if you do have questions for Mr. Green, you should ask them now.

I take it you don't.

Mr. Hanger: No, I don't, not right at the moment.

The Chair: There won't be a revisiting of questions for Mr. Green, so if you have questions for Mr. Green I would ask you to ask them now.

Mr. Hanger: No, that's fine.

The Chair: Thank you. Ms Clancy.

Ms Clancy (Halifax): Mr. Green, I want to thank you for your presentation.

I will tell you something that has concerned me as a parliamentarian in dealing with matters such as this. I want you to understand that I think it probably took a great deal for you to come forward. You said you haven't talked about this much and these are things that are very private, I'm sure, to you and your family. I have heard other victims of crime talk about the need to get on and not talk about retribution in that sense, and yet others who have an opposite view.

I'm asking you this now in your capacity as someone who has worked with offenders and who is about to embark on the practice of law - you foolish man. One of the things that has always concerned me is that we probably should not, with all the respect due to people who have suffered, allow the responses of victims to colour too much how we legislate. What would your opinion be on that?

Mr. Green: I would agree. I guess I wouldn't expect legislators to change the law to accommodate my personal circumstances, whatever they are. Certainly you have to look at the overall picture and what is best for society as a whole.

That's not to say that people shouldn't have the right to express their views and opinions. But I still think at the end of the day that - and there was some discussion about it earlier - you have to look at legislatures from a rational approach, not a personal approach, not an emotional approach.

That's what I'm doing to a certain degree tonight, but from a different perspective. I think as legislators you have to somehow disassociate yourself from that as much as possible and look at it in a rational way. I think that's important.

I've been thinking about this a lot in terms of why people have certain views and the automatic assumption that people who have been victimized are automatically going to have a punitive attitude. One of the things, and I'm certainly not sure about this, is that it would be interesting to talk to people and find out what their attitudes were before the victimization.

I think, and again this is just my own personal view, in a lot of cases those people would have had the same attitude before the victimization. Just like before my father's murder I did not see myself as a person with a strongly retributive attitude, I did not believe in capital punishment and so on, and that didn't change because of what happened with my father.

I don't know if that adds anything.

Ms Clancy: I think it adds a great deal. I personally want to thank you for coming forward and bringing your views to this committee.

Thank you, Madam Chair.

The Chair: Ms Torsney.

Ms Torsney (Burlington): Would it have made any difference to you at the time of sentencing on how involved you were? I haven't finished reading your letter to us. Some people have said today that the problem was that they heard a verdict of life imprisonment with 25 years, with no eligibility for parole. I wondered if maybe the problem was that there was no instruction at the time by the judge to say that there is a possibility, because of section 745. It appeared that in itself was a problem for a lot of people.

Did it have any bearing, any of the information that was given out on sentencing at the time?

Mr. Green: When my father was killed, no. You have to remember that this was back in 1971. At that time the 25 years wasn't in place.

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I didn't go to the sentencing. I remember thinking about it at that time. Our family was going through a fairly major emotional crisis. It was just a number of months after my father had been killed. I had a seven-year-old brother and a twelve-year-old brother and my mother was having a difficult time. I remember thinking about going down and people asking me whether I was going to go down. I thought about it and asked why; I didn't see any need to do that. This was just months after. It wasn't going to bring back my father. It wasn't going to help me in any way. I let it go and focused on the issues I had to deal with, and these were trying to run a family business and trying to deal with family members and get on with our lives.

Ms Torsney: I'm not a lawyer, so sometimes when people say don't bring emotion into it I appreciate what they're trying to say, but sometimes I think emotion can be a good thing if it encourages you to work for change.

We know that the system has treated victims badly through the process so we've made a number of changes since taking office to try to institute a better system. It seems that I hear a lot from my constituents that somehow if accused persons have rights, victims don't: there are only so many rights going around, so if I have rights then you don't have any. That's something I frequently hear from one of the opposition parties as well: there can only be so much, and if you have rights then that must be taking up my rights. I wonder if you could comment. Is it a zero-sum game?

Mr. Green: I think it is. I think it's a no-win situation for both parties. I think that any victim will tell you that the best thing that could be done is if they weren't victimized. If we'd spend more time focusing on making sure that people don't get into a situation where they feel they have to create victims and kill and rob, then I think we'd be much further ahead rather than this one-upmanship situation of trying to make sure that the playing field is level. There's too much effort being placed in that area and not enough on the preventative aspects.

The Chair: Mr. Hanger has questions. Five minutes.

Mr. Hanger: Thank you, Madam Chair.

I would first like to express my sympathies to you and your family in reference to the death of your father. Even though it was way back in 1971, I recognize the trauma that goes through families and communities when such events take place. Being a former police officer, I have investigated the types of events that you write about here. I know what it's like in that regard.

I'm interested in a statement you made in the third paragraph in your letter. You make reference to scrapping section 745. I've always been a firm believer that we should debate and debate vigorously any item. I don't care how controversial it is. I think this day of political correctness in a way has to be diminished in some fashion. Even the most controversial of topics should be put forward in the House here, because there are laws being passed that some agree with and some do not. I believe that it's incumbent upon members of Parliament to do that very thing. I'm interested in a statement you made here. In it you talked about scrapping section 745.

The procedures established under section 745 provide sufficient safeguards to ensure that only the most deserving will be successful. To do otherwise is not to make a rational decision based on logic, but would be nothing more than pandering to the whims of the conservative types who are using emotionally distraught victims to advance their positions.

Do you believe that's what the conservative types are really doing?

Mr. Green: I think in some cases, yes.

Mr. Hanger: Then you go on:

Further, it is my belief that in most cases politians who support such regressive measures are doing nothing more than trying to advance their own political careers.

You feel this is really happening.

Mr. Green: Yes.

Mr. Hanger: When we sit back and debate these items, even maybe ones as controversial as section 745, do you think these items should be debated in the House and out in public?

Mr. Green: Yes, I do.

Mr. Hanger: You think they should be debated.

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Mr. Green: I think they should be debated, yes, but I do believe what I wrote there.

Mr. Hanger: When it comes to the points made by the conservative types who seem to hold the opposite view from yourself, you really can't accept the lines of reasoning or the thoughts behind their position.

Mr. Green: I don't agree with the position. I don't agree with changing the law and making it more aggressive than it already is. It's already regressive, punitive and non-rehabilitative in many ways. So I don't believe in taking a step back and making it worse than it is.

From my experience in working with prisoners in correctional centres and in the community, I can't see how making the changes that are being proposed by section 745 is going to make it safer for you or me or for my children or for anybody else. I can't see it.

Mr. Hanger: What do you base that on?

Mr. Green: I base it on my experience from working with prisoners and seeing that incarcerating people for longer periods of time does not rehabilitate them. I have not seen that in all the years I worked with prisoners in prisons and in the community.

Mr. Hanger: For the most part, though, our sentencing and the time spent in jail really, if you look at the statistics, prove that the sentences are becoming shorter as opposed to longer.

Mr. Green: That's not what is being proposed by section 745.

Mr. Hanger: Our suggestion, of course, is that it be 25 years and no release granted. In fact, the sentences are going the other way when you look at the overall statistics.

Mr. Green: I don't know that. You may be able to speak to that, but the reason we're here is to talk about section 745. And as somebody who has suffered a loss of a family member, whether somebody spends 15 years or 20 years or 25 years or 10 years is not going to bring back my father. It's not going to make me feel any better. It's not going to make me feel any better at all if the person serves any more time.

I know there are other people who feel differently -

Mr. Hanger: Is your father's killer still alive?

Mr. Green: I don't know. I know the one individual who was sentenced was paroled short of his sentence. I know that from the contacts I had in the correctional system many years ago.

Mr. Hanger: Thank you, Madam Chairman.

The Chair: Thank you.

Mr. Maloney, did you have a brief question?

Mr. Maloney (Erie): Mr. Green, the legislation before us is not a repeal of section 745. It's basically proposing amendments to section 745, although some may feel that in reality it is a repeal. Do you take any issue with the provision that would allow a screening by a judge to eliminate frivolous claims or to protect the victim from having to go through the whole process prematurely, perhaps?

Mr. Green: I've looked at the legislation the way it is, just briefly, and I talked to one of the staff members briefly. I'm not totally familiar with all the ins and outs of the legislation. All I would say is that I don't see any reason to change the way it is.

From the brief perusal I did - and I mention this in the letter - it seems as though there are enough safeguards in place. You have a jury that makes the decision as to whether or not the person is even going to be considered. It seems to me that we rely on our jury system in a wide variety of matters throughout the criminal and civil processes and we have respect for the jury's decision, so why not let the jury decide? Why put it in the hands of a single judge? I strongly believe that it should be left the way it is.

Mr. Maloney: What is proposed is a staged procedure. A judge would consider whether there is a frivolous claim or not. Then it would go to a jury. Unanimously they would have to approve, or disapprove, I suppose, and then it would go on to the parole board.

Mr. Green: Right.

Mr. Maloney: What is wrong with saving the costs of these hearings, which cost an estimated $50,000 or $60,000, and also saving the victims the problem of having to go through the whole emotional trauma of reliving the situation again? What's wrong with screening?

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Mr. Green: As I said before, I just think the current system has sufficient safeguards. I don't think the system should be downplayed or changed for the victims. That's my own personal view.

I don't think that's really the issue at this stage. It's unfortunate that victims have to go through hearing about what's happened, but I think the goal at this stage is to make sure that this person doesn't reoffend so that there aren't future victims. That's the primary thing.

Hopefully we can deal with the victims who have suffered already in some other way. I don't think that whether a judge decides or a jury decides.... I just can't see it being beneficial to a victim in terms of dealing with the issues they may have.

Mr. Maloney: Thank you, Madam Chair.

The Chair: Thank you, Mr. Maloney.

Next we have the Elizabeth Fry Society. Ms Pate.

Ms Pate: Thank you very much. My name is Kim Pate. I work with the Elizabeth Fry Societies, and I want to thank you very much for taking the time to hear from us.

Over the last day and a half you have heard from very many people about very many positions. I'm not certain what, if anything, I can add to the discussion at this point, aside from reiterating what you have heard from some of the groups. And fundamentally, it is that those of us who are working on the front line with both victims and offenders, whether it's women who are working in rape crisis centres, women who are working in shelters and transition houses or women who are working in prisons with prisoners, have all, over the past number of months during which this issue has come to the forefront, come to the clear conclusion that the erosion of the principles of justice and fairness as proposed by the proposed amendments to section 745 are fundamentally problematic to all of us.

While we find ourselves in the loathsome position of being cast as proponents or supporters for the release of serial killers - as it was put to me by the media yesterday and again today - that's not what this is about. We are fundamentally objecting to this erosion of the principles of justice and fairness being applied to some people. That's one piece.

Secondly, the proponents of this are expressing this as a means of addressing the needs of victims. There are other issues as well. They are very emotional issues that are very real to many people. Mark has expressed one opinion, and I know you have heard other opinions, as have I, and I respect all of the opinions that you do hear. However, I think we very clearly have a system that - until such time as we look at a fundamental overhaul and reconfiguration of our criminal justice system - is based on a process that does stand on the very fundamentals of the rule of law. And I suggest that what we see before us in the form of Bill C-45 is the start of an erosion of that system that many of us find very scary and absolutely antithetical to the protection of our liberties as Canadians. That's another piece.

Another piece is that it's being done in the name of victims in this country, victims who are predominantly women and children, in a context where at the same time we're not seeing the provision of services at the community level that are needed to help prevent women and children from becoming victims.

We have those issues as well as the fact that we're seeing it at a time of deficit reduction, when we're hearing time and time again of the need for fiscal responsibility, and here we have a provision that we have not seen a problem with.

We have not seen people coming out and committing murder after being reviewed by virtue of the section 745 provisions. We are not seeing an increased risk to the community as a result of section 745. In fact, since section 745 came in we know that the average sentences have increased dramatically. It's gone up from an average of 13 years to something in excess of 18 years or 19 years before people with life sentences are being released.

The question I've been asking that I've yet to receive a response to that makes much sense to me at this point is why are we looking at proceeding on a bill at this time that is undoubtedly going to increase the cost of the system to meet an issue that is really not an issue in terms of people being released and committing offences, particularly murder? To me, that's the fairly obvious question.

.2015

When women's groups are being told they cannot have the resources to have rape crisis centres, when people are being cut off social assistance, when education programs are being cut, and when all kinds of cuts are happening, it seems like we're embarking on investing in a provision or a series of provisions and amendments to section 745 that will undoubtedly increase costs. And it will increase costs not just through the principles and the procedures that have to be put in place to administer these amendments, but also through the constitutional challenges that will undoubtedly come as a result of these amendments.

From our perspective, we see it very clearly as an attempt to meet the very real and important need of having victims' needs addressed, but it's an attempt that will in no way actually meet that need.

I'm happy to answer any questions.

The Chair: Just before we go to questions, I wonder if you could clarify one thing. Can you tell us how many women are lifers right now, if any have been released under section 745, and if so, how they're doing?

Ms Pate: I can. In fact I'll also tell you something else about lifers in a moment. I'm going to the prison again tomorrow, and one of the issues is whether the lifers' group will even exist any more. The reaction to this has been so profound and devastating to the women that it's.... We have some very real concerns.

One woman has been reviewed pursuant to section 745. She's a woman who...if her case happened now she would not be convicted. It was a case of constructive murder. For those of you who are not aware of it, that provision was repealed some time ago. Unfortunately, anyone whose case was not active at the time was not eligible to be reviewed.

The circumstances of this woman's case were that she had not warned a police officer who was coming in.... Her partner had been abusive to her for many years. He had her as a hostage in a hotel room and refused to release her. She didn't warn the police officers when they came into the room that he had a gun. She was convicted, as you could be at that time, on the basis of constructive murder, first degree murder.

It was reviewed more than three years ago. She was granted immediate parole eligibility at fifteen years and just got out of prison within the last few months. It took her another three years after the full eligibility was reduced. She then, of course, had to apply to the National Parole Board, and then had to go through a series of release plans and steps in terms of escorted temporary absences, then unescorted temporary absences and then a halfway house. Just recently she has gone to live with her daughter and granddaughter.

She's the first woman and the only woman so far. There are another three women coming up within the next year and a half who are quite concerned about what this will mean, and we're very concerned about what this will mean for them.

I talked about the lifers' group. When this provision was coming up we were trying to create hope, and I often feel like I'm creating false hope, particularly.... You all know the results of Madam Justice Arbour's inquiry and you all know how little has been done for women in prison historically.

The first reaction of many of the women was just to disband the lifers' group. They said ``What's the point?'' Their advice to women who come in now is that they might just as well kill themselves rather than try to live in there for 25 years.

Obviously we're working as hard as we can to ensure that isn't the option taken, but increasingly, as we see prisons becoming ever more brutal for many prisoners, we fear that will be the result.

Tomorrow I'm planning to meet with the lifers' group, but I'm not sure that anybody will be meeting with me. The despondency and the despair are quite clear. And many of you know the impact, and you know that the manner in which women respond to these sorts of situations is generally to hurt themselves as opposed to expressing the anger and frustration they may be feeling in a more overt way.

The Chair: So one has gone through it, there are three coming up, and how many other women are in for life?

Ms Pate: I believe we have 47 lifers in the prison. We have a high number of lifers. A number of them have applied for reviews under the self-defence review, but we know many will not be eligible because of the circumstances and because of the limitations of the Lavallée test. So we have grave concerns.

.2020

We know we may see women from those provinces where section 745 is working well being released. Even before these proposed amendments, even before all the issues around section 745 were being raised, lifers were concerned that because of the many biases that exist, particularly for the first nations women, they may not be successful anyway facing what will undoubtedly be a predominantly white jury.

The Chair: I apologize to my colleagues. I was asking what I thought were short questions. I forgot who my witness is. I mean this affectionately.

Mr. Langlois, you have ten minutes.

[Translation]

Mr. Langlois: You asked just about the same questions I was going to ask, Madam Chair.

[English]

The Chair: Do you want me to take the rest of your time?

Mr. Ramsay.

Mr. Ramsay: I have just one question. What is there about this new bill that has so discouraged the prisoners you've talked about?

Ms Pate: In fairness, I haven't talked to all of the women lifers since the bill came out, because the bill just came out last week.

What was discouraging to the women around any proposed changed to section 745 was it is already seen as a last chance, one small hope that they might possibly be released. They watched the case of the only woman who has been reviewed so far. They watched what was seen as an ideal case from the Correctional Service of Canada's perspective, from the perspective of the women who knew her, from the community standard, all of that. When they saw how long it took her to actually get out of prison once she was successful in the review, the hope became ever more distant for many of those women.

I've only heard from a couple of the lifers since this came in. As I say, I'll be meeting with them tomorrow. But very clearly their concerns are that this puts even further in the distance the opportunity or the chance they will be released.

Mr. Ramsay: You also mentioned conditions for women inmates are becoming more brutal. I thought with the five new women's institutions at least the physical aspect of their incarceration was changing dramatically to the point where some criticize it. Nevertheless, it was a radical change from, for example, the Kingston Penitentiary to what we have in Edmonton and the four other areas.

Ms Pate: It was supposed to be a radical change. I would absolutely agree with you. The reality has been, however, that the manner in which women have been treated in the new prisons, particularly in the Edmonton prison, has been far more punitive and far more regressive. This is to the point that yet again last week we were calling on the interim Commissioner of Corrections to remove shackles from minimum security women who were being shackled before they went into the community on passes. These are women who were identified as posing no risk to the community and for whom there is no risk at all of escape. Yet they were being treated as though they were maximum security prisoners in a context where there have never been any previous difficulties with them.

In addition, since January of this year we have been raising with the Correctional Service of Canada the fact that they were violating their own policy and the law with respect to strip-searching those women in the Edmonton prison. They were strip-searching them outside their own policy and definitely outside the law. Their response, it seemed, was to identify the women as higher risk as a result of the questions we were raising.

Therefore, the reality for most of those women has been quite different. Most of the women who went into the prison have been kept locked in what has been referred to as the enhanced security unit. This is basically a segregation unit.

Madam Justice Arbour toured the new prisons. As she pointed out in her report, none of those units were satisfactory for long-term living situations and some of those women had been there six months.

Mr. Ramsay: You mean none of the new units?

Ms Pate: None of the new enhanced security units.

Mr. Ramsay: They're not suitable?

Ms Pate: No. The enhanced security units are not suitable for long-term living.

Mr. Ramsay: The Edmonton facility has had its difficulties. I thought the warden there,Jan Fox, was handpicked to introduce this new facility and there have been some difficulties. There have been assaults. One inmate has been killed. I understand there are murder charges against another inmate.

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So they've had their difficulties there. There is no question about this. But it surprises me to hear you state that in spite of the huge sums of money that have been spent on those five facilities, it is still a brutal atmosphere for the women inmates.

Ms Pate: It's surprising to you and it was incredibly distressing to us to see, once the spotlight of the inquiry was off, what was still happening in our prisons for women. I absolutely agree.

I should point out, though, it would be remiss of me to say it is happening all the way through. Certainly we haven't seen the same number of concerns at Truro, the new prison for the Atlantic region. We have some concerns, but we've seen none of the same concerns at the healing lodge.

I think it's important for the committee members to know the healing lodge has some of the women whose sister prisoners in the Edmonton prison were described in precisely the same terms as some of those who in the healing lodge right now are being described. There are prisoners who are living at the healing lodge with no fence and with virtually none of the static security measures in place at the Edmonton prison. They're not having difficulties. This very much speaks to the difference in terms of the context and the environment you put people into and how they respond to it.

We've long known that all of the wardens with the exception of the Kikawinaw, which is the Cree word for the warden at the healing lodge, were hired from within the ranks of the Correctional Services of Canada. Unfortunately, they carry much of that training, and the difficulty of switching to the new philosophy has been an incredible one and one we've remained committed to trying to work on.

We see women who were described as significant problems and maximum security prisoners when they were at the prison for women behind two-storey-high walls now living at the healing lodge without any of these sorts of security measures. In fact they are described by the staff as mentors and model prisoners in this environment. They are taking incredible responsibility for their actions. Because of this, we see a very different reality.

Mr. Ramsay: Certainly there's something amiss at the Edmonton institution.

Ms Pate: I would agree.

Mr. Ramsay: Anyway, thank you, Madam Chair.

The Chair: Thank you.

Are there any other questions? There are about four minutes left - going, going, gone.

On the government side, Ms Clancy.

Ms Clancy: No.

I'd like to thank Ms Pate for coming and giving her usual cogent and very non-emotional but compassionate presentation on behalf of Elizabeth Fry. Thank you.

Ms Pate: Thank you.

The Chair: Ms Torsney.

Ms Torsney: I wanted to ask you about something raised earlier today in your capacity as a member of the NAC committee. I wasn't sure if I caught it correctly. I wasn't sure Mr. Nunziata had implied that somehow the decision of the women of this country who had voted on something at NAC on the weekend was made from some position of ignorance or not having read the bill. I wonder if perhaps you could tell us something about what the discussions were and how you arrived at the conclusions you did.

Ms Pate: Certainly. As a member of the national action committee, as you know, I represent my organization. My organization is one of 375 women's groups who are part of the National Action Committee on the Status of Women.

This issue first came to the agenda of the justice committee three months ago, I believe it was. It was actually introduced by the chair of the justice committee, who came to me and asked -

The Chair: I am having a memory lapse here.

Ms Torsney: The other justice committee.

Ms Pate: Ms Go came to me and asked for my input on some of these issues. She had initiated the discussions. So we started to work on some of these issues. I provided the information we had. She went and consulted with her committee. They consulted with the member agencies who we felt would be most significantly impacted. Those include, obviously, sexual assault centres, rape crisis centres, shelters and those who were doing other broadly framed victim services in the community with women and children. At that point we were looking at Mr. Nunziata's bill, and came back with a very clear position against repeal.

Then NAC also participated in consultations with the Department of Justice. And when it became clear we were looking at amendments, we started to look at the more specific amendments. I say ``we'' loosely. I'm not part of the committee, but I certainly was able to participate in some of the discussions.

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It was put before two groups. It was put before the women's groups Minister Rock met with last week to consult on justice issues, and all the groups were very clear they were unanimously not supportive of the amendments. We received the bill the day we were starting our consultations. A number of us spent two evenings and much of one day studying the bill. Of course we had at the table with us some of the finest legal minds in this country, who are working at our law schools and with and around the criminal justice system, as well as people working on the front line.

In addition to that process, the national action committee was engaged in its own process of continuing with consultations. A resolution came to the floor at the national action committee annual meeting this weekend. It was seen as so significant in terms of the potential erosion of all people's liberties that it was put on as the number one agenda item for the NAC lobby, in fact. Joan Grant-Cummings, the new president, actually framed the question in her opening address because it was seen as so significant, and as a potential erosion of our fundamental principles of justice and fairness. The fear is that we're heading into a gradual erosion of many of the liberties we hold dear at a time when we're asking not for the erosion of our liberties but in fact just the opposite, that our liberty be protected by those who have that responsibility, whether they be the police, the courts, yourselves.

So that was the fundamental process. It was with much trepidation - emotional trepidation, not personal trepidation - that we recognized that what this was going to be framed as was our supporting Mr. Olson's entitlement to apply. But that's how it was framed, and we took that on very squarely and said we will take that responsibility of saying this one man will never get out, we know that, yet we will not stand by and support the development of a law for one man not to be able to apply in the name of all those who are victimized or in the names of us personally. That was the fundamental basis on which we objected to the process.

I hope that answers your question about how the process of coming to that decision unfolded. It was after much discussion, much debate, and also, I must tell you, much concern about the difference in the ability of women's groups to articulate this position and mobilize at a time when, as I've shared with some of you, we're talking to women who were talking about how they could pool their UI cheques and their social assistance cheques to feed their own children. These are women who are not getting paid to work in the rape crisis centres and shelters, who are massively under-resourced.

One of the questions that's been put to me many times, and a suggestion to me personally as well as to our organization and women's groups, is you need to be out there encountering the lobby that is there in support of changing section 745, and what you need to know is with the very few resources we have, the charitable status most of us have even if we had the resources, we're again in a fundamentally disadvantaged and marginalized position on this issue, as we are on so many other issues.

So I appreciate your asking the question. I think it's important to know NAC represents millions and millions of women and children by virtue of its constituency across this country. If the march against poverty didn't indicate that better and more graphically than I can, perhaps you can visit NAC or come to one of the meetings and really see who's there and what's being presented.

Ms Torsney: And was there a debate amongst those who were victims?

Ms Pate: There was much discussion about what this meant. There was some confusion about what this meant. Initially it was felt.... As I understand from talking to some of the members of Parliament who have called and asked for some information about what we were proposing, there was much confusion about what this really meant: was it really about protection or was it really about a law that wasn't working. So the information was provided. I should point out that it wasn't by me, because I clearly identified my bias and my clear position on this. It was put forth by other rape crisis centre workers, who themselves had looked at it and identified that it was a concern.

As you can see from the resolution - and this was what was put on the floor, so you don't have that it was passed - it was proposed by the justice committee and supported by all the membership, but it was even seconded by the sexual assault centre. It's a clear indication that we did wrestle with some of this.

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Some women asked if there was a way we could change this to encourage the resourcing that would otherwise go to these amendments and have that as a demand that the money instead be put into the community for rape crisis centres, so at the very least we'd have houses that aren't closing.

The other part of this discussion that was being strategized was how to keep houses open without salaries - given that those are gone, how to keep houses open. Perhaps the government could instead invest in basically giving them the money to buy their own houses so they could continue to do their own way of supporting the women in the houses.

The Chair: Thanks, Ms Torsney.

Ms Torsney: Can I have a Ramsay minute?

The Chair: You can have a Ramsay minute.

Ms Torsney: I never get Ramsay minutes.

We've heard a lot from victims today that they don't get an option on a 15-year review, they don't get an option on a 25-year review, they've received a life sentence. You're telling us you're concerned about what this will imply for the women who are incarcerated. I'll ask you what a young woman asked me in the riding one day. Why should we give a hoot about the conditions of somebody such as Karla Homolka when Leslie Mahaffy is in a box?

Ms Pate: I get asked that question too, and I wrestle all the time with how we make sure these sorts of things don't happen again. I'll tell you what the lifers have said to me, many of them.

A woman out on parole now was convicted of second degree murder. She talks all the time about how she wishes she could give her life if it could bring back the woman, her stepmother. I think it's an attempt to believe that by exchanging the live bodies for the dead ones, somehow we can compensate. I don't believe we ever can, but I also don't believe the victims' issues need to be ignored - quite the opposite.

What we don't need to do is to promote a situation where we likely will have more brutalizing experiences and therefore more victims in prison as well, whether it's by their own hands or by the hands of others, as we've heard. Mr. Ramsay referred to how a woman has been murdered in the Edmonton prison, and a week before that a woman killed herself in the Prison for Women. We don't want to see either of those situations.

My comment, my concern, always is how will this assist you in moving ahead? For some people, I think they genuinely do believe knowing someone will be forever locked up will assist them in moving ahead. If that person is forever a risk to the community, they will always be locked up.

It may interest or may not interest you to know I was raised in a very different environment and I was a strong proponent of capital punishment for many years. It's through working with both victims and perpetrators of violence that I've moved to a position that is significantly different, where I don't see exacting punishment, whether you're the perpetrator or the victim, assists us in moving ahead.

It's fundamentally about what kind of community and society I want to live in. Do I want to live in one where we're proving that killing is wrong by killing someone? No. Do I want to live in a community that proves demanding punishment and punishing someone who has already shown they can't abide by... or for whatever reason have not coped in our community is the way to go? No. So for me it's very much about looking at what is going to help move us forward.

To bring it back to section 745, when I think about this, I think many of us would like to see a repeal of 745 and a return to lower base sentences. That's not on the table, but this is. I for one don't want to see an increase of more and more expenses in a system that is likely going to create more problems.

A million dollars a woman for every woman who gets kept in for another ten years under these provisions could be spent a whole lot better in the community. As I've talked to community members, it's about $92,000 a year to keep women in the prison. If you're looking at another ten years or more, you're talking about close to $1 million, plus the cost of child welfare for those who have children in care. So we're talking about substantial figures.

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As I've talked to people in the community and asked, if you could change how this money gets spent, how would you want it, most people say, we would take two women in the community, two lifers, if we could have that money invested in community programs - or even if we couldn't, some of them say.

The Chair: I want to thank both of you for coming. It was helpful. We appreciate your coming even at this late hour.

We'll rise for a couple of minutes.

.2041

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The Chair: We're back. First we'll do clause-by-clause consideration of Bill C-234.

Clauses 1 and 2 negatived

The Chair: Shall the title carry?

Some hon. members: No.

The Chair: Shall the bill carry?

Mr. Hanger: I'd like a recorded vote on this.

The Chair: The bill fails, with two yeas and seven nays.

Mr. Gallaway.

Mr. Gallaway (Sarnia - Lambton): I move that having regard to the fact that this bill has failed, we not report it to the House.

[Translation]

Mr. Langlois: Madam Chair, I would like you to rule on this. By order of the House, Bill C-226, which became Bill C-234, was referred to us. We made a decision. Wouldn't it be in order that the House be officially informed of the decisions that we made regarding the bill? It seems to me that it is not necessary to adopt a motion to report to the House. Perhaps the clerk could shed light on this.

Now that we've decided that we should go back to those who gave us a mandate to inform them about what we've done with the bill that they had adopted in second reading, we don't have to adopt a motion stating that we are reporting back to the House. It seems to me normal that the committee be able to report its work to the House.

.2055

[English]

The Chair: Thank you. I think this is the procedure we followed in two other circumstances. In both of those circumstances - I should say I wasn't the chair for one time, but I was the second time - we ruled the motion was in order.

Mr. Hanger.

Mr. Hanger: Madam Chair, for the record, why would we not report this bill to the House? Why would we not report it?

The Chair: Mr. Campbell.

Mr. Campbell (St. Paul's): Madam Chair, I think the point is that the bill failed at committee, so there's nothing to report out to the House, as I understand procedure. It failed to make it through committee. There's no report of the bill from committee. It failed at committee.

The Chair: Mr. Gallaway.

Mr. Gallaway: As Mr. Campbell has said, there's no clause 1, there's no clause 2, and there's no title. We have a blank page to report to the House. Accordingly, we don't do that. The practice in this place is not to report a bill that has failed totally at committee.

The Chair: Right.

The question, then. You want a recorded vote, Mr. Hanger?

Mr. Hanger: Yes.

Mr. Campbell: Could we just have the motion repeated, then?

The Chair: The motion is that the bill having failed at committee, the committee not report the bill to the House.

Mr. Ramsay: Madam Chair, can I have clarification? Did we vote that the chair report the bill with or without amendments to the House as a third report of the committee? Isn't that -

The Chair: I'll just review what we've done. We voted on clause 1 and it failed. We voted on clause 2 and it failed. We voted on the title and it failed. We voted on the bill and it failed. The next step was a motion by Mr. Gallaway that the bill having failed, we not report it to the House. That's the motion. I've ruled that the motion is in order, and now we're calling yeas and nays by recorded vote.

Motion agreed to: yeas 8; nays 3

The Chair: Now, on Bill C-45, clause 1, there are some amendments from the Bloc. I'm going to ask you to take us through those.

Mr. Kirkby: There's just a little overview of the bill. Would you like me to explain it before or after, or dispense?

Ms Clancy: Dispense.

The Chair: Well, we've certainly dealt with him.

Mr. Kirkby: We can dispense with the rest of it too.

Ms Clancy: Let's just go clause by clause.

The Chair: Mr. Langlois.

[Translation]

Mr. Langlois: The series of amendments tabled earlier by the Official Opposition is divided into three parts because the bill itself is in three parts and because there are clauses that are conditional on the enactment of Bill C-41 being in place. Up until amendment BQ-6, there's no repetition, but afterwards, these are amendments for the sake of consistency since the bill itself includes amendments for consistency.

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The first two amendments, BQ-1 and BQ-2, deal with determining whether someone found guilty of more than one murder can go to a court to request the application of section 745. As I said, I am in favour of people having that right.

The first amendment deletes the words ``subject to subsection (2)'', because it is precisely subsection (2) which, in a later clause, prohibits anyone found guilty of more than one murder from applying for release.

Therefore, BQ-1 and BQ-2 represent the entirety of the amendments to be adopted. The point is to maintain the situation as it has existed since 1976 in terms of the possibility of applying for release. I therefore move the adoption of BQ-1, and depending on what happens to BQ-1...

[English]

Amendment negatived [See Minutes of Proceedings]

The Chair: Amendment BQ-2.

[Translation]

Mr. Langlois: You can apply the same result to speed up process.

[English]

The Chair: Is there unanimous consent to apply the vote on BQ-1 to BQ-2?

Some hon. members: Agreed.

Amendment negatived [See Minutes of Proceedings]

The Chair: Amendment BQ-3.

[Translation]

Mr. Langlois: Amendment BQ-3 deals with the selection process, as it has been called. This means that in the future, a person would be forced to submit documentary evidence. Proposed subsection 745.1(1) of the bill reads as follows:

745.1(1) On receipt of an application under subsection 745(1), the appropriate chief justice shall determine on the basis of the following written material...

and then it lists certain documents. Therefore, documents are transmitted to the judge. He has to rule after examining solely the documents that he received from inmates, the Correctional Services report and other documents provided by the attorney general.

Therefore, the purpose of my amendment BQ-3 would require that there be a contradictory hearing where the inmate, the applicant, the attorney general or any interested party can explain their views verbally, since I am proposing that, upon receipt of such an application, the judge hold a hearing about that application.

Subsection (1.1) that I'm proposing specifies the following:

(1.1) The applicant shall be given reasonable notice of the hearing and of the time and place of the hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to produce evidence.

Amendment BQ-4 is a consequence of this. A court of appeal, which must rule after having examined documents only, should only rule after having taken into account the representations made by the parties, by joint presentation, by joint brief or factum that they may transmit to the appeal's court. I therefore think that BQ-3 and BQ-4 could be dealt with the same way.

.2105

[English]

The Chair: Okay, we'll take the vote on BQ-3, and on consent apply it to BQ-4. Is that agreeable?

Some hon. members: Agreed.

Amendments negatived [See Minutes of Proceedings]

The Chair: Next is amendment BQ-6.

[Translation]

Mr. Langlois: Amendment BQ-6 deals with an essential point. It deals with the issue of two thirds majority. I don't have to repeat this debate for you, because I have done so on many occasions before witnesses. They often came to tell us about the necessity of maintaining the two thirds rule. Personally, I see this as a national standard because by adopting a unanimity rule, we are doing indirectly what would have been done directly by passing Bill-234. Since that is obviously not what we wanted to do, the only way to submit prosecuted persons to the same rule of law from the Atlantic to the Pacific is to maintain the two thirds rule.

Like many others, I explained that the two thirds rule, in case of a decision on release, can be explained by the method of evidence being used, by considerations that are not simply legal but value-oriented as well. You don't have to find beyond all reasonable doubt under the rules of evidence. Therefore, the jury is not bound by evidence above all reasonable doubt as they are when they determine a guilty verdict.

Therefore, if only to maintain the possibility for inmates of using section 745, it's important that we amend the bill so that the jury can act effectively. Otherwise, west of the province of Ontario, it will become extremely difficult if not impossible for someone to appear before a jury to make such an application.

[English]

Amendment negatived: nays 9; yeas 2 [See Minutes of Proceedings]

The Chair: Before we consider clause 1, I'm going to pick on something that may be a little....

Yes, Mr. Langlois.

[Translation]

Mr. Langlois: Madam Chair, since amendments BQ-7 and following are there for the purpose of consistency with the first six amendments, obviously I will not move them. That would make the pleasure last and I think we've had enough fun until now.

[English]

The Chair: That's amendments BQ-7 through BQ-17. They are on clause 2, are they?

The Clerk of the Committee: Yes.

The Chair: So when we get to that we'll apply it.

I just want to comment on the grammar here. I know we're bowing to political correctness, and I usually do, but there is a plural pronoun that doesn't relate back to anything. Could somebody please explain why we're doing that? I assume it's because we're trying not to use ``his'', but I just point out that when you refer back, there is no plural subject. You therefore have a serious grammatical inconsistency.

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Ms Clancy: Hear, hear.

The Chair: You're welcome. I see the glowing face of an official there who's just dying to explain this to me.

Ms Torsney: She didn't go to the same girl's school as you.

The Chair: No.

Mrs. Ablonczy (Calgary North): Madam Chairman, could you direct us to the appropriate line, please?

The Chair: Subclause 745(1), the word ``their''. There's only one ``their'' in subclause 1.

Mr. Ramsay: In what line, Madam Chair?

Ms Torsney: Three.

The Chair: The third line. I would have thought that it would have jumped out at all of you, but I guess we didn't all go to the same grade school.

Ms Torsney: The nuns did a good job.

The Chair: The nuns did a very good job on me, and this just grates.

Ms Clancy: At least in this case.

Ms Torsney: On this issue.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy, Department of Justice): All I can tell you, Madam Chair, is that the reason you have referred to is the reason why it's drafted in the way it is. Our expert drafters in the Department of Justice assure us that's the way to draft in those circumstances.

I myself have seen in the past the use of the word ``themself'', which even for someone whose mother tongue is not English was a little bit strange. But we are told by our experts that that's one way of dealing with the problem you were referring to.

I will pass your comments on to our experts.

The Chair: May I suggest that a better way to deal with this would be to have that line read ``Justice in the province in which that person's conviction took place''.

It wouldn't change the French.

Mr. Ramsay: I would agree.

The Chair: It would be proper grammar.

Mr. Ramsay: I second that motion.

The Chair: Carrying on, ``their'' appears in paragraph 745(1)(b), and instead of reading ``15 years of their sentence has been served'' it could say ``that person's sentence''. The same in paragraph (c).

Would it change the sense?

Ms Torsney: I believe we have had this same issue occur in other pieces of justice legislation that we've dealt with previously. As horrific as it seems, we agreed to do it in all of our other previous bills that we've passed. While I appreciate that it's really simple in the three cases you've mentioned and it makes a lot of sense, I think that the policy of the department now is to go with ``their''. So we're actually setting up a new policy that would be inconsistent with the rest of the bills that we've passed as a government.

God, the nuns are going to get me.

Mr. Ramsay: We have a justice in Alberta who made a remark about the wording in the Criminal Code. He said that it was so convoluted as to be twice removed from reality.

I don't want to be here till midnight, but what you're talking about makes sense to me.

The Chair: I'm the chair and I'm not making motions.

It's grammatically incorrect; it's a plural. Is it in the Interpretation Act?

Mr. Roy: No, it's not.

The Chair: So we didn't pass a law to make it grammatically correct. Is that what you're telling me?

Mr. Roy: Not yet.

The Chair: I'm losing my mind.

Mr. Gallaway: Perhaps we could ask our staff people here if this was drafted in French or in English first.

Mr. Roy: I'm sorry; I didn't catch that.

Mr. Gallaway: Was this bill drafted in French or in English first?

Mr. Roy: It is the policy of our department to draft these pieces of legislation in both official languages at the same time. This bill was done in that fashion, as are all other bills that end up before this committee. So it's not a matter of one being the English version of the other or one being the French version of the other. These bills are drafted together at the same time by two drafters. These are not translations.

Mr. Kirkby: I undertake to bring the concerns of a number of you back to the department. It will be looked at.

The Chair: As picayune as they are. Fine.

[Translation]

Mr. Langlois: If we were to maintain the English version as is, we have to be consistent and say in the French version: ``une personne peut demander, par écrit, au juge en chef compétent de la province où a eu lieu leur déclaration de culpabilité'' and not ``sa déclaration de culpabilité''. In my mind, there is something wrong there.

.2115

Mr. Roy: Mr. Langlois, allow me to add that our legal experts at the Department of Justice indicated that in the past, the use of the word their or themself, originated with English usage of the XVIIth century. That's why we think it's possible to use it in the English version that we have before.

In the case of the French version, when we say ``sa déclaration'', we are conveying the meaning of the English version properly.

Mr. Langlois: Your explanation in French suits me better than the other one.

Mr. Roy: More than in English?

Mr. Langlois: Yes.

[English]

Some hon. members: Oh, oh!

The Chair: I'm going to have a private member's bill to amend the Interpretation Act to make this proper grammar.

Shall clause 1 carry?

Mr. Ramsay: On division.

Clause 1 agreed to on division

The Chair: On clause 2 we have amendments BQ-7 through BQ-17. I believe we have consent to apply the votes on the prior amendment, so BQ-7 through BQ-17 fail.

Clauses 2 to 9 inclusive agreed to on division

The Chair: Shall the title pass?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

An hon. member: Roll call, please.

Bill C-45 agreed to: yeas 7; nays 4

The Chair: Shall I report the bill to the House as the second report?

Mr. Langlois, we just want to make sure that you did propose BQ-7 through BQ-17.

[Translation]

Mr. Langlois: No. In any event, if it's necessary to make adjustments, let's do them now since they won't take very long. I said that BQ-1 to BQ-7 dealt with the issue of two thirds majority, preliminary hearings and repeat murderers, whereas the rest was only for the sake of consistency. Therefore, there is no use moving them. So let's consider them not moved or defeated by the same vote, as you wish. I don't mind.

[English]

The Chair: Okay, 1 through 7 were moved and defeated and 8 through 17 are withdrawn. That's fine, thank you.

Ms Torsney has moved that I report the bill without amendments to the House as the second report of this committee.

Some hon. members: Agreed.

The Chair: Thank you. It's unanimous. I shall report the bill.

Mr. Ramsay: [Inaudible - Editor].

Ms Clancy: Thick as I am, I still remember I don't need your permission.

Some hon. members: Oh, oh!

The Chair: Colleagues, thank you very much. We're adjourned.

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