Mr. Derek Lee (Scarborough—Rouge River, Lib.)
Mr. Speaker, we are continuing debate on Bill C-48, a bill dealing with consecutive periods of parole ineligibility. That sounds fairly clinical. The area we are dealing with is unfortunately circumstances that follow the conviction of individuals for a second or third first degree murder.
Currently, a life sentence is imposed following a conviction of first degree murder. However, there is a fair bit of misconception about that life sentence. To keep it simple, in my view a life sentence is simply that, a sentence for life. The individual will never be out of sentence. There will never be a sentence expiry. There will always be a connection between the state and the individual, whether the person is in a prison, some other location or, in some cases, released under a reporting scenario.
What has muddied the waters on this is the fact that the Criminal Code imposes a parole ineligibility period of 25 years for someone convicted of first degree murder. That means that the person is not eligible to even request parole. Having said that, we have the procedures involving the faint hope clause. Therefore, I must put an asterisk beside that.
However, just in terms of basic sentencing, someone who is convicted of first degree murder has a life sentence. That is essentially forever, so long as the person lives; in other words, the person may not apply and is not eligible for any type of parole before the expiry of the 25 years. That applies whether the person is 20 years old or 50 years old when convicted. The sentence is for life.
The bill deals with the parole ineligibility period of 25 years. In the past there has been some suggestion that the parole ineligibility period should be increased in cases where an individual has committed more than one murder. As I understand it, most people presently working in corrections take the view that once people have been sentenced to life they are on the hook forever. Their considerations are all of the normal sentencing considerations, including deterrents, denunciation, safety to the community and those types of things.
There is no automatic release after 25 years either. For a person who is given a life sentence, 25 years is simply the period for which he or she is ineligible to apply for parole. Therefore, there is no automatic release after 25 years. The phrase “life 25” does not mean that prisoners are released after 25 years. It means they are ineligible to apply for parole within that timeframe. The Parole Board can only consider parole for an individual after the 25 years of imprisonment. Therefore, for many, “life 25” means forever. Offenders will never be released. For some it means 30 years and for others 40 years in prison. That is how it works and it has developed the population inside the prison system. They are referred to as “lifers”. It is actually a fairly stable population group within the prison system. Everyone wishes there were fewer of them. However, they exist and it is a somewhat stable population. Some say the reason it is stable is that prisoners are aware they will remain in prison for a long time and they do not want the prison system upset. They like stability.
These individuals also foresee the possibility, remote for some, zero possibility for others, that they will be released at some point before they die. They appear to like that smooth run up to when that period of potential release is there.
I have had the privilege as a member to visit many prisons across the country. By the time many of those individuals get there, they do not have a lot of incentive to leave. It varies from offender to offender. It is a sad circumstance when someone 70 years old and not considered to be a danger to the public simply does not want to leave and stays incarcerated. Some people would say that is fine, let him or her rot. In terms of the way we run our prisons that is not necessarily in keeping with the standards. However, I am diverging slightly from the bill.
Lest anybody has any doubt, the bill does not deal with individuals already convicted of multiple murders. It only applies to people who are convicted subsequent to its passage. It does not deal with people who have already served 25 years of a life sentence. Those people will continue to be dealt with under the current law, and should they apply for parole, they have the ability to try and convince the Parole Board they should be released on some basis, not that their sentence ends but that they be released on some basis.
The bill does not have anything to do with the procedures related to the faint hope clause. There has also been legislation before the House dealing with that. The faint hope clause does not apply to multiple murders in the first place and the individual has to apply to a judge to be able to get approval to apply to the Parole Board. The individual has to get permission from a judge and from the Parole Board and then he or she has to make an application. This bill does not actually affect the faint hope clause at all.
It is important to note that the bill does not automatically impose a second 25 year period of ineligibility for parole. Right now the parole ineligibility period is 25 years. The bill does not say that if someone commits a second murder, that individual would have an automatic additional 25 year period of ineligibility. The bill does not do that. That is one of the reasons the bill has a chance to pass, and I get the impression that it will pass.
Bill C-48 would impose some discretion. Although my colleague from Windsor—Tecumseh did not find the procedural provision helpful in section 745.21, an explicit instruction is given to the jury in these trials where it is asked to comment. The jury is asked to provide its recommendation if it so wishes as to whether or not the judge should impose a second 25 year ineligibility period. The instruction reads:
You have found the accused guilty of murder. The law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the period without eligibility for parole to be served for this murder consecutively to the period without eligibility for parole imposed for the previous murder? You are not required to make any recommendation, but if you do, your recommendation will be considered by me when I make my determination.
The jury in the second trial is invited to make a recommendation and most people would find that quite reasonable, although as has been stated here, it will be difficult sometimes for a jury to make a recommendation in a circumstance like this when it has not had the benefit of hearing from the accused. In this particular circumstance the accused will have already been convicted, but just. That person may or may not have taken the stand and all of the evidence will have come in from third parties. There will be no psychiatric or other medical evidence pertaining to the individual.
Most juries would find themselves underequipped to make a recommendation but in some cases a jury will make a citizen's judgment, if I can put it that way. We have heard the circumstances of those very sad, tragic killings in Surrey of innocent people who quite innocently came up against a gangland group, and a jury might say that it had heard enough to make a recommendation.
Anyway, the recommendation, if made, is made and then later on the judge must make a decision. The wording there says that a judge may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission and the recommendation, if any, made by the jury, order that the periods without parole eligibility are to be served consecutively.
There is the discretion on the part of a judge and if a judge does not decide to make these periods consecutive, he or she must give reasons. I would have thought that we might have wanted to have reasons either way but I am sure the judge will give reasons either way because in murder convictions there is a high probability of scrutiny of that judgment, potential for appeal, and a judge would not want to be seen making any decision, one way or another, without giving appropriate reasons. I am sure all Canadians agree with that perspective.
There will be a considered and rational decision made by a court about these parole ineligibility periods and it will be based on information brought out at the trial, either in the trial itself or in the sentencing phase.
I am prepared to give the bill guarded support because there is this discretion and not because I believe that the legislation in its execution will make the public any safer. I do not think anybody is seriously suggesting that this is public safety related. I should not say nobody because the bill has a short title where the government says that this bill may be cited as the protecting Canadians by ending sentence discounts for multiple murders act. The government somehow believes that this would make Canadians safer. I actually do not see that.
The second thing is that the judge, in making a decision about a second parole ineligibility period, cannot simply increase it by five, ten or fifteen years. The legislation only allows the judge to double it. I would either be 25 years or 50 years. Many of us think that is kind of dumb. It is actually more likely to make the judge decide not to impose the 50 years. I am speaking from my own experience, but we must keep in mind that this is judicial discretion. While the pretence here is that we are throwing the book at the convicted person, the fact is that there will be a jury, with or without recommendation, and there will be a judge who will be making a discretionary decision. We tried to vary this at the committee but without success, which is too bad.
What is the real effect of this on the street? Fortunately, there are not many of these multiple murders in our society. Regrettably, of course, there are some but there are not many and, because they are so notorious, we know about them all and we remember them. It becomes a litany over a quarter century of all of these terrible killings. They are truly sad but we remember them more than most of the others.
It seems to me that what will happen over time is that after 25 years the same logic and rationale that is currently used by the Parole Board in determining whether a person can be released on parole, whether it is murder or any other conviction, but let us just focus on second degree and first degree murder, the Parole Board will exercise its judgment as to whether the person, having regard to all of the circumstances, the denunciation, the deterrence, the public safety, can be safely released from prison.? That is what the Parole Board does all the time and it makes a whole lot of good decisions.
Is there a mistake once in a while? There could be. Do judges make mistakes? Maybe they do once in a while.
I remember that when I was first elected to this place in the late 1980s there were two separate cases of parole releases where very bad things happened. There were also prison escapes where some very bad things happened. However, the corrections system has improved and I think it is managing things much better.
I think that the same logic that is used by the Parole Board will actually be transmitted over to judges. The judges will begin to think the same way. When it comes time to either impose or not impose the second 25-year period of ineligibility, they will be thinking: Can this person be dealt with via the single parole ineligibility period? In other words, will we see him or her released in some fashion on parole, not end of sentence, after 25, 30 or 35 years? The only other alternative, if they impose the second 25-year period, would be release after 50 years and for many people that will be never. Judges will need to take on the challenge of thinking this way. I have every confidence that they will do it properly within the law and in the public interest and will serve each of the communities they in which they serve.
However, will it make a difference in deterrence? Beyond any shadow of a doubt, and I am not trying to make light of this, I cannot imagine that any prospective killers will pull out their copy of the Criminal Code before they commit the murder to try to determine whether they might or might not have a second period of parole ineligibility. This just will not happen and it is illogical to think that it would happen. Will there be any direct deterrence by this? I suspect not.
I also accept that many people in society like the mathematical simplicity of being able to see what a period of hard time in prison is in relation to the criminal act they have committed. If they rob a bank they will get five years, if they rob two banks they will get ten years and if they rob three banks they will get fifteen years. I can subscribe to the mathematical simplicity of that and a sense of justice, or whatever it is, not retribution. However, in this case we must keep in mind that we are not dealing with the sentence. The sentence is life. It always has been and still is. We are only dealing with a parole ineligibility issue.
While much of this, and some of the other legislation with which we have had to deal, is a sham, is posturing and is pretence, this one has a very small tweak to it. I do not think there is any sense of discount. We just need ask Mr. Olson or Mr. Bernardo if there is a discount there for them. There is no discount. This is a lifetime enterprise for them. They are in jail and I do not think the Parole Board is going to see it any other way.
I regret that we need to deal with 10 or 20 separate Criminal Code bills. The government seems intent on trotting out every little vignette, scenario and bill number with a very sexy title. I think it is a bit of a distortion of how we can work around here.
Topic: Government Orders
Subtopic: Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act