Statement made on 01 March 2011 by Senator George Baker
Hon. George Baker:
Honourable senators, I want to say a few words. I think that it would do us well to have the bill proceed to the committee for extensive examination.
We are not like the House of Commons — we have seen this happen with many bills over the years — where they introduce a bill, then a couple of days later they move a motion that it be deemed to have been read a second time, deemed to have been sent to a committee, deemed to have been reported and then deemed to have been read a third time. That approach has been taken many times.
The Senate does not take that approach. Consequently, when honourable senators look at all our case law in Canada — all the decisions of the quasi-judicial bodies, federally and provincially, as I have referenced before — they see the Senate mentioned, of recent, three times the number of times that the House of Commons is mentioned, as far as legislation is concerned.
Only last week, the Supreme Court of Canada, in R. v. Ahmad, 2011, SCC 6, said at paragraph 68:
Parliament's understanding of the respective roles of judges conducting criminal trials and Federal Court judges is perhaps best understood by reference to the following exchange made before the Special Senate Committee on the Subject Matter of Bill C-36 . . .
Then, the court goes on to quote the exchanges that took place in that Senate committee. That was only last week, by the Supreme Court of Canada.
Senator Stratton is sitting in his place today. He has been quoted recently more than any other senator or member of Parliament because of a recent change to the impaired driving provisions. I have mentioned this case before, but the Ontario Court of Justice, Justice Fraser, in another decision — we see these words often now, and there are many cases:
Senator Stratton, speaking as sponsor of the second session Bill C-2 in the Senate, also referred to the purpose of legislation as restricting evidence to the contrary to "scientifically valid defences."
As Your Honour knows — you were a professor of law and you taught the provisions of section 253 of the Criminal Code — the Senate passed a bill, a government bill, giving a new definition to "evidence to the contrary" — only scientifically approved evidence is now admissible. Of course, each of the judges now blame Senator Stratton; well, they do not blame Senator Stratton, but they have to quote someone. Therefore, they go to the Senate, more often than not. Of course, the fellow being convicted often thinks that Senator Stratton has been responsible for a good many people behind bars of recent.
That is what happens when a body such as the Senate seriously deals with legislation and the committee examines the legislation diligently. It leads to the position the Senate holds — that the House of Commons does not hold — that it is a legislative body and not a political one. New senators should realize that perhaps the most important distinction between the two bodies is that the House of Commons maintains the government's accountability to the people. That is their primary function. Today, it is perhaps their most important function, simply because the Senate has taken over the legislative function of the House of Commons, as is witnessed in our court judgments.
When the judges determine the purpose of the legislation, they first go to the second reading sponsor of the bill in the Senate. With the legislation that is being passed now, in five and ten years' time, one will see senators' names mentioned and, of course, in introducing legislation, senators have to be careful that they do not give their own opinion of the legislation as much as they are duty-bound to give the government's position — the position of the Department of Justice — of the legislation so that judges can see exactly what the purpose of the legislation was.
This bill was introduced by Senator Lang. Very briefly, I think Senator Lang outlined the purpose on February 10, 2011, as follows:
It would authorize a judge to order that convicted multiple murderers could serve separate, 25-year periods of parole ineligibility to account for the second and each subsequent victim of their crimes. Most importantly, these additional 25-year periods would run consecutively to the period of parole ineligibility imposed for the first murder.
That tells us that if one takes any of the recent examples, such as the Bernardo case or the Colonel Williams case, where two murders were involved, each of them received a life sentence with ineligibility for parole for 25 years. The logic of that over the years in our system of justice has been that one can only serve one life term of anything; one does not have two lives.
This bill will give the discretion to a trial judge to say, "For the first murder, life imprisonment, no chance for parole for 25 years, first degree; and, for the second murder, another 25 years of parole ineligibility." It would then become 50 years.
If these murders had taken place after the passage of this bill, according to this legislation, the judge would be duty-bound under the Criminal Code to consider that and to report reasons for not imposing the second life term with the second 25-year period of ineligibility. In substance, as Senator Lang outlined it, that is what this bill does.
In the Pickton case, there were six murders, so one would multiply the possibility, because they were second degree convictions, with the first being 10 years but each subsequent one being 25 years added on.
In the case of Clifford Olson, Senator Lang referenced that particular case and said:
In these cases, judges will have the new power to effectively eliminate the need for victimized families to suffer through a series of parole applications that too often do little more than stir up painful memories.
Senator Lang rightfully also referenced the fact that this bill was introduced 10 years ago by a Liberal member of Parliament who is still a member of Parliament and that it was in fact passed by the House of Commons but did not pass the Senate at that time.
What Senator Lang is saying is that, currently, a person who is convicted and receives a life sentence, when the 25 years are up, the parole hearing takes place and every two years thereafter, that person has the right under the law to a parole hearing.
We know there is no chance of parole. Clifford Olson's first words at each one of his parole hearings was, "You would have to be crazy to release me," yet he commands this attention and subjects the families of the victims to this every single two years.
Honourable senators, Senator Lang has suggested — and I think Senator Boisvenu has done considerable work on this subject, as well — that this legislation would certainly address that problem. However, this bill applies only to murders that take place after the passage of this bill. That, perhaps, is the first area that will be examined by the Senate committee. Why would it not apply to murders that have taken place prior to the passage of this legislation but a determination not made and not tried until after the passage of the legislation?
I think the witnesses that we will hear from will make a big point of the fact that the judge is restricted in his discretion to add on only 25-year periods. In other words, a judge cannot say, "It is 25 years for the first murder, 10 years for the second one, and 5 years for the next one." No, that discretion is not there. The discretion is only there to consider 25 years added on to the first murder conviction. That would perhaps be the first criticism of the legislation itself from the Criminal Lawyers' Association, and I am sure Your Honour would agree.
Senator Lang also made reference to the fact that the companion piece of legislation, Bill S-6, the proposed Serious Time for the Most Serious Crime Act, will effectively repeal the faint hope regime for all future murderers. That is something else that I am sure will be visited by witnesses before the committee.
As some honourable senators will recall, Canada passed the law to do away with the death penalty in 1976. I was a member of Parliament at that time. I recall the legislation clearly. The provision passed said that for first degree murder there was a 25-year term of parole ineligibility. The term of 25 years was the recommendation of the Canadian Police Association, as I recall. At that time, it was selected to stand out as being what some people would call harsh. In order to get the legislation passed, there had to be those "harsh provisions." Thereby, it raises, perhaps, a question that will come up to the committee that was not raised in the House of Commons. None of these issues was raised in the House of Commons, but an issue that may come up is the constitutionality of the provision.
As honourable senators will recall, the case was Luxton, Supreme Court of Canada, regarding the 25-year ineligibility for parole provision, where the case was being tried on whether it was a violation of section 12, cruel and unusual punishment. The Supreme Court of Canada ruled that 25 years was not cruel and unusual because of the faint hope provision. I am not suggesting that I think that will happen, but perhaps that provision will be raised in committee in the consideration of this bill.
Honourable senators, I believe that Senator Lang did an excellent job of outlining the government's position on the bill, and we should consider it carefully in committee to give it the substance that judges will be looking for.
In conclusion, honourable senators, in the other place right now, they are debating a provision produced by the NDP that the Senate should be eradicated, dissolved.
Most honourable senators will recall that about two years ago, the House of Commons passed an omnibus bill of 500 pages that did away with the tax credit for the Canadian film industry but left the tax credit for the American film industry. Do honourable senators remember? The NDP voted for the bill. Then they had a meeting with the film industry and the actors' guild, and the NDP gave us their explanation. They did not read the bill. They missed nine pages in the bill. However, they said, "To correct our mistake, we are asking the Senate to make sure that that bill does not pass."
What a mistake. Granted, it was a 500-page bill, but it was a new subject. I looked at it and wondered how they could miss nine pages. It did go to a committee, but they passed it in five motions, 100 pages at a time: "Shall clauses 1 to 100 pass?" "Yes." "Shall clauses 200 to 300 pass?" "Yes." That is how it was passed, and that is how they missed the nine pages.
Honourable senators, the NDP came to members of the committee individually, asked them to stop the bill, and said publicly that they were calling on the Senate to stop the bill. Well, the Senate did stop the bill. We did not pass the bill, and it was never reintroduced.
Only three months later, the Senate was called upon to address a bill that changed the Elections Act. That legislation would have released the names, addresses and birth dates of all voters in Canada. Again, the House of Commons said it did not realize what it was doing, and the NDP called on the Senate again to correct the legislation. The Senate corrected the legislation, sent it back to the House of Commons, and the House of Commons approved of our change.
Honourable senators, in answer to the NDP's motion today in the House of Commons, we should say that if the NDP is suggesting the eradication of the Senate, then they must assure Canadians that in the future the NDP will read the legislation they vote for.
Some Hon. Senators: Hear, hear!