BRIEF TO THE
STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
HOUSE OF COMMONS
40th Parliament, 3rd Session
AN ACT TO AMEND THE CRIMINAL CODE AND ANOTHER ACT
Short title: Serious Time for the Most Serious Crime Act
Presented by the Canadian Criminal Justice Association
June 09, 2010
Background of the Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill S-6, An Act to amend the Criminal Code and another Act, or the Serious Time for the Most Serious Crime Act, concerning the elimination of the Faint Hope Clause. Our Association has grave concerns about the possible implications of S-6. We outline them here for you and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the biennial “Canadian Congress on Criminal Justice.”
History and Relevant Issues
The death penalty was abolished in 1976, and Bill C-84 was the act that introduced the mandatory life-sentence of 25 years, in order to replace capital punishment. Several factors contributed to the abolition of the death penalty. First, it was difficult to get a conviction for murder when the penalty was death; second, Parliament was faced with the tough and potentially unpopular decision of commuting almost every death sentence to life imprisonment; and third, there was always the possibility of executing an innocent person.
While the abolition of the death penalty was hailed as a humanitarian change, the imposition of the life sentence of 25 years was considered by some as "cruel and unusual punishment" (Pilon, 1997), tantamount to "death in life" (O'Reilly-Fleming, 1992, 292-293). But this was seen as the necessary "trade-off" for abolishing the death penalty (Pilon, 1997). Clause 21 of the Bill established the possibility of lowering the time of parole eligility through Judicial Review. At the time, this was considered the necessary "glimmer of hope" for life-sentenced prisoners (Pilon, 1997), and hence the alternate name the Faint Hope Clause". This amended Section 745 of the Criminal Code.
Initially, it had been proposed that the period of ineligibility for parole be reviewed by a tribunal of three superior court judges. This was amended and replaced by a judge and jury. The jury must consider the character of the offender, his/her conduct during incarceration, the nature of the offence for which he/she was convicted, and such matters as the presiding judge deems relevant in the circumstances.
The Faint Hope Clause authorises a person, who has been convicted of murder or high treason and who has served at least 15 years of his sentence, to make an application to have his parole inadmissibility date reviewed.
It is important to note that a Lifer is not automatically freed from prison when he or she is granted a favourable decision following a Judicial Review. If the 25 year eligibility period is reduced by the jury, the individual may then apply for parole at the earlier date. The Correctional Service Canada will provide reports on the individual's correctional progress and behaviour, including psychological reports, to the National Parole Board. It is a panel of Parole Board members who will ultimately decide if and when the individual's community reintegration programme can commence. Release is usually undertaken on a gradual basis, starting with short escorted trips to the community, followed by progressively longer periods, often including stays in a halfway house. Whatever his status, he will always be under the supervision of the Correctional Service Canada and must adhere to strict conditions imposed by the National Parole Board. A Lifer remains on parole until he dies.
Of the 1062 offenders who were eligible to apply for a judicial review as of April 25, 2010, 180 have actually applied and of these, a positive review making them eligible to apply for earlier parole, was made in 147 cases. Of these, 136 lifers were granted parole. The important figure to remember is that in these cases, there have been nine (9) revocations for non-violent offences and only two (2) for violent offences. (NPB, 2010)
The aftermath of the abolition of the death penalty in 1976
Contrary to predictions by death penalty supporters, the homicide rate in Canada did not increase after the abolition of the death penalty in 1976. In fact, the Canadian murder rate declined over the next 30 years. For instance, the police reported 611 homicides in 2009, this resulted in a rate of 1.83 homicides per 100,000 population. The national homicide rate has been declining since the mid-1970s, when it was around 3.0.
The overall conviction rate for first-degree murder doubled in the decades following the abolition. This may be suggesting that Canadian juries are more willing to convict for murder now that they are not compelled to make life-and-death decisions.
Furthermore, the time which must be served prior to parole eligibility for those convicted of murder has increased dramatically since abolition of the death penalty. Before 1974, the maximum period of parole ineligibility was 7 years for Non-capital murder (second degree) and 10 years for Capital murder (first degree). The maximum period of ineligibility is currently 25 years for a conviction of First Degree Murder and a minimum of 10 years (up to 25 years) for Second Degree Murder.
Lifers under Federal Correctional Jurisdiction
In April 2009, Lifers represented close to 22% of the entire population of offenders under the supervision of the Correctional Service of Canada. Figures show 4955 Lifers under federal jurisdiction. Of these offenders, 4,345 were serving life sentences and the remainder were serving indeterminate sentences as a result of dangerous offender designations.
On March 31, 2009, almost two-thirds of all Lifers were housed in federal institutions; the remaining 1,722 Lifers were on conditional release, representing almost one-fifth of the overall CSC offender population under community supervision.
The majority of Lifers are compliant with the rules and discipline of institutions, and cooperative with Correctional Service of Canada staff. They have an inherent benefit in maintaining a peaceful existence because of the length of their sentence. For this reason, lifers have historically been "model" inmates, a number of whom are presently serving their sentences in minimum-security penitentiaries. They actively seek programs and professional assistance and most have been able to maintain community and family support, which are key factors in successful rehabilitation.
As mentioned above, 136 life-sentenced prisoners were granted parole as a resultof the Faint Hope Clause. In nine (9) cases, the National Parole Board revoked parole for non-violent offences that range from Impaired Driving to Fraud under $5,000. There were only two (2) revocations for a violent offence, one for an offence of Robbery and the other for Assault with a weapon (NPB, 2010).
Bill S-6 An Act to Amend the Criminal Code in the Elimination of the Faint Hope Clause
The Bill currently under consideration proposes to deny the possibility for a judicial review to ALL those serving life sentences whose offences were committed on or after the day on which this bill comes into force. Further, it proposes to narrow the time frame for those who are currently eligible, from no time frame, to ninety (90) days. In addition, following an unsuccessful judicial review application, the offender will have to wait a further five (5) years before he or she has the possibility of re-applying, which is currently not the case.
As such, CCJA’s primary concern with Bill S-6 is that it undermines the opportunity for structured release of those Lifers who no longer represent an undue risk to the community and would most benefit from release. Furthermore, it undermines the principles of sentencing as laid out in s. 718 of the Criminal Code, as it seeks to take away the opportunity for further rehabilitation once the use of incapacitation and general deterrence have been exhausted. As Porporino and Zamble state:
...there is a general consensus that imprisonment should not be damaging. Prisons should not change individuals for the worse. Social objectives are not met to the extent that imprisonment serves to exacerbate psychological vulnerabilities and emotional difficulties, reinforce pro-criminal attitudes and aggressive behavior patterns, or curtail the development of coping skills needed to function in the outside world. (Porporino and Gamble, 1984, 403)
Bill S-6 shows a lack of understanding of the roles and fundamental objectives of the Correctional System: to involve offenders in programs, lower their risk to society and ensure that the transition to the community is gradual and closely-monitored. Lifers represent a low risk to re-offend and should be given an opportunity to contribute to society rather than languish in our penitentiaries, institutionalized and utterly dependent. Lifers released on parole could be in a position to find employment and pay taxes while providing some level of support to their families.
The Committee should bear in mind, when considering changes to the Judicial Review process, that the Faint Hope Clause has done exactly what it was meant to do which was to give ‘hope’ to many individuals who might have, otherwise, become discouraged and behaved in self destructive manners or act out violently toward others while incarcerated. The existing legislation gives hope to Lifers while also contributing to the overall security in our penitentiaries.
It is very costly to keep an individual in a penitentiary and the costs tied to a person’s incarceration increase as he or she ages and requires more medical care and physical support. The conditions of prison life have been found to exacerbate the aging process, resulting in a more rapid deterioration of health among inmates than among the general public (see Fazel, et al., 2001; Beckett, et al., 2003; Curtin, 2007). Public Safety reports that the cost of incarcerating a Federal male prisoner in 2007-2008 ranged from $89,377 to $135,870 per year (for women this figure rises to $182,506), depending on the security level. (Public Safety, 2009, p. 29) or $278 per day. In contrast, the cost of community supervision for the same period was $24,825 (Public Safety, 2009, 30). American comparisons have noted that the cost of incarcerating an "elderly" inmate (over the age of 55) is up to three times that of a younger inmate, due to increased medical needs. The removal of the faint hope clause also eliminates the ability of the judicial system to exercise discretion in cases of older offenders with chronic or palliative illness who would no longer pose a threat to the public and will increase the number of inmates who die behind bars.
When we look at the number of life-sentenced offenders that have obtained a judicial review during the last thirty (30) years--that is, 13.4% of all those who had the possibility--we can see that the Faint Hope Clause fulfills its mandate perfectly: to offer the possibility to those who make all the necessary efforts to make significant changes in their lives, and only to those persons, to have these efforts recognized by the same community that sent them to prison.
The judges who have participated in this exercise over the last thirty (30) years have not taken this task lightly. They have refused applications that were judged not to merit review. Further, they evaluated in each of the 136 other cases, the appropriate number of years that should be taken off a prison sentence prior to parole eligibility. It's the community that takes the decision to convict the offender, because it is the community that has lost one of its members due to a murder. It is therefore apt that this same community should decide whether the offender who it has convicted has made the necessary changes to his life that make him deserving of a reduction in the number of years of his sentence. This power must remain in the hands of the Canadian citizenry who have exercised it with such wisdom over so many years.
The figures clearly show that the Faint Hope Clause, as it has been applied to date, does not pose an undue threat to the safety of our communities. Moreover, it is difficult to understand the reasoning behind the abolition of the Faint Hope Clause when we consider all the positive aspects that emanate from its retention: hope for life-sentenced prisoners, a high rate of success for lifers who obtain a favourable decision, and a lowering of the costs of supervising life-sentenced prisoners. Therefore the CCJA vigorously recommends that the Committee reject Bill S-6.
Beckett, Joyce, Cindy Peterneli-Taylor and Richard Johnson (2003). "Growing Old in the Correctional System" in, Aging Matters, September, 12-18.
Curtin, Tim (2007) "The Continuing Problem of America's Aging Prison Population and the Search for a Cost-Effective and Socially Acceptable Means of Addressing It" in, Elder Law Journal, 15, 473-502.
Fazel, Seena, Tony Hope, Ian O'Donnell and Mary Piper (2001). "Health of Elderly Male Prisoners: Worse than the General Population, Worse than Younger Prisoners" in, Age and Ageing, 30, 403-407.
National Parole Board (2010). Statistics provided by the NPB to the CCJA June 9, 2010.
O'Reilly-Fleming, Thomas (1992) "The Dark Workshop" in, K. McCormack and L. Visano, Canadian Penology: Advanced Perspectives and Research. Toronto: Canadian Scholars' Press, 291-317.
Pilon, Marilyn (1993, rev. 1997) Murderers' Parole Eligibility: The Evolution of Judicial Review (BP-348E). Ottawa: Government of Canada, http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp348-e.htm.
Porporino & Gamble (1984) "Coping with Imprisonment" in, Canadian Journal of Criminology 26(4), 403-421.
Public Safety (2009) Corrections and Conditional Release Statistical Overview. Ottawa: Public Works.