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Bill C-479, Corrections and Conditional Release Act, Bill to Amend—Third Reading

 

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Rivard, for the third reading of Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims).

Hon. George Baker:

(...)

Many of you have seen Senator Joyal on television addressing the Supreme Court of Canada, and you noticed one thing about Senator Joyal last year in giving that magnificent speech to the Supreme Court of Canada. He is sometimes off-script, and he is better when he's off-script, but he's always very careful in what he says. There is no doubt about that. I have heard him, since I have been here in the Senate, three times say a bill is unconstitutional — only three times. I've heard him say 50 times that something may be unconstitutional, and I've heard him say 50 times you should consider the constitutionality of this particular section of the bill, but I have only heard him say three times that something is unconstitutional. Sure enough, our courts have proven him absolutely correct in those three instances. Now we have another one here.

Senator Joyal said this:

The problem I have is simple. When that amendment was introduced, it had the impact of bringing a retrospective effect into the bill, and that was the purpose of the amendment, as you stated yourself. . . . So for this bill to have an impact immediately, it has to be retrospective. In other words, it has to apply to those who have been sentenced before that bill comes into force. I see you nodding. Unfortunately, the minutes of this committee do not register that, but I think that you can answer if my interpretation is right according to what you said.

Then Mr. Sweet makes a statement. Senator Joyal had quoted the Supreme Court of Canada case, and Mr. Sweet said:

. . . I'm not familiar with the case in its entirety . . . it would be unwise for me to comment in that regard. But certainly it would be the job of the committee to decide whether the substance of the case and the substance of the judgment directly refer to what we're dealing with here and then, of course, you'll make your decisions in regard to the bill that's before you.

So the sponsor of the bill disowned the amendment to the legislation. Senators, this is the problem with the bill. There is only one section to the bill that's a problem. The rest of it is not a problem, but this one section to the bill.

Senator Joyal should now stand on his feet and explain this further.

 

Hon. Serge Joyal: I don't know if I should thank my colleague Senator Baker for challenging me to stand up with an unwritten script today, but I would want to bring some even broader context to the point that Senator Baker raised, because it's a very important context.

 

When a senator on any side raises a question of the constitutionality of a bill, it is a very serious issue, because when it is mentioned, it lights a red light in the legal system. We are piling all these amendments on the Criminal Code, or on the Correctional Services Act, or on other related acts like the Controlled Drugs and Substances Act that was discussed earlier this afternoon by Senator Dagenais. When you raise the issue of constitutionality, someone somewhere in the system will cop the ball. In relation to the point raised here, how much can we in Parliament change parole ineligibility to the point where we breach the Charter? That's, essentially, the question.

Honourable senators will remember when we adopted Bill C-56 in 2011. Bill C-56 was an act, again, that changed the Corrections and Conditional Release Act under the title "Accelerated Parole Review." That was in 2011. That was the first time we tried to change the period of ineligibility.

At that time, the Minister of Justice, Minister Toews, appeared before the Standing Senate Committee on Legal and Constitutional Affairs. Bill C-56 contained a similar clause of retroactivity. In other words, the bill aimed at not only rules for future inmates who would have access to parole, but the bill wanted, again, to change the conditions under which those who are already inmates would have had access to parole.

When the minister testified, I raised a concern. I want to quote it from the minutes of the committee. It's found at page 2011. I said the following when I was addressing the minister:

I want to clearly understand your interpretation of the penal consequences. The fact is that people who have been found guilty or who have pleaded guilty are currently eligible to request parole after serving one sixth of their sentence. It is not automatic, as you said in your response to Senator Baker, but they are eligible.

This is the important point:

This bill changes the date of eligibility, and some might have considered that when pleading guilty. That is the change in penal consequence in this bill. That is what raises the possibility of a constitutional challenge to the bill.

I was addressing myself to the Minister of Justice, Minister Toews.

Honourable senators, fortunately or unfortunately, depending on which end of the lens you're looking through, the Supreme Court confirmed my remark in the Whaling decision three years later on March 20, 2014. I want to quote the Supreme Court decision at page 430. It says the following:

From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives change the manner in which some of the prisoners in the system serve their sentences.

The court concluded that once you are an inmate and you have been sentenced, you have been sentenced with a certain number of capacities to address the parole system under a specific period of time. If Parliament ex post facto, somewhere down in the future, changed those conditions, that period of time of ineligibility, they are changing something for which you are protected by the Charter in section 11(h), which states:

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again —

This is the important point:

— and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

This is a cardinal principle of penal law now. The Supreme Court has clearly stated that a change to the ineligibility period is a change to the sentence.

The concern that I raised with the Minister of Justice in 2011 was vindicated last spring, March 2014. Unfortunately, when reading this bill and listening to the sponsor of the bill, I found exactly the same retroactivity entrenched in the bill. So I asked why they did not learn from the Supreme Court decision, because the same situation brings the same results. This bill will be challenged. In fact, those who are targeted specifically by the amendment as read by Senator Baker will be the first ones in the court tomorrow when this bill is adopted.

We know that this bill is open to challenge. I think that we are not rendering service to Parliament, and especially to this chamber, when we know the truth as plain as daylight this afternoon and we do not act according to our specific conclusion. Honourable senators, when we adopt legislation that is plainly a breach of the Charter, I think we do a disservice to the parliamentary debate and the trust that Canadians have in our role in this chamber.

Honourable senators, I'm not inventing that. I would like to quote Justice Wagner, the leading judge in that unanimous decision of March last year. Justice Wagner made the following statement in his decision, at paragraph 80:

Regarding the Crown's argument that retrospective application is necessary to maintain confidence in the justice system, I would point out that the enactment of Charter-infringing legislation does great damage to that confidence.

Let me repeat it:

. . . I would point out that the enactment of Charter-infringing legislation does great damage to that confidence. The Crown has produced no evidence to show why the alternative of a prospective repeal, which would have been compatible with the respondents' constitutional rights, would have significantly undermined its objectives.

What does he say to us? He says that when we are aware that there is a clear breach of the Charter in a piece of legislation, honourable senators, our role is to remove those sections from those bills because, as he said, it's the trust of the system that we are undermining for Canadians. This is a very serious issue. That's why, honourable senators, I propose to you this afternoon that we amend the proposed section 7, specifically on that very issue of retrospectivity.

Motion in Amendment

Hon. Serge Joyal: Therefore, honourable senators, I move:

That Bill C-479 be not now read a third time, but that it be amended in clause 7,

(a) on page 6, by deleting lines 38 to 43; and

(b) on page 7, by deleting lines 1 to 5.

(1450)

Hon. George Baker: Your Honour, let me ask the mover this: All you are doing by this amendment is just removing the retrospectivity of the bill. You are not affecting the intent of the bill or anything; all you're doing is removing the retrospective section of the bill. Is that correct?

Senator Joyal: It is absolutely correct. It doesn't at all change the intent of the bill as it is spelled out in the summary of the bill that is printed on the first page. It's quite clear, as you said very eloquently: The retrospectivity of the bill, which aims at those who are already inmates subjected to the Correctional Service as it stands now, is the only part of the bill that is removed. In other words, the bill as it was conceived originally remains intact. That's the important thing.

Hon. Denise Batters: Will Senator Joyal take a question?

Senator Joyal: Yes.

Senator Batters: Senator Joyal said that arguments about constitutionality light the red light, but I can tell you, honourable senators, that with that in mind we have had a lot of red lights at the Legal and Constitutional Affairs Committee in the last two years that I've been on that committee, and some might say it's like a red light district at times. But argument that a bill is constitutional doesn't mean that a bill is constitutional, and so my question to Senator Joyal is as follows:

Senator Baker and I, during clause by clause on this particular bill, had that exact back and forth about this very aspect, and this was on February 18, 2015. In fact, Senator Baker quoted some of the exact material he read here today, and I responded to that, and I quoted from paragraph 63 of that Whaling decision by the Supreme Court of Canada, which contained this quote:

Generally speaking, a retrospective change to the conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. Indicators of a lower risk of additional incarceration include a process in which individualized decision making focused on the offender's circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility.

My question to Senator Joyal is this: How does he respond to that? I would contend this particular bill creates simply a discretion and not an obligation for the board to extend the next parole hearing from within the current two-year system to within five years.

Senator Joyal: A very easy way to understand the situation is that when a person is sentenced, the person is sentenced within a system of parole eligibility that exists at the time that the person is sentenced.

If you change some of the conditions of the system once the person is in it, you affect the way that person would have determined his or her plea of guilty and his or her defence, because a person will take into consideration at what time down the road that person might expect to be freed after one sixth of the penalty or two thirds of the penalty and so forth. If you change the eligibility, the date that person can request the board to consider his request, you change one of the fundamental rights of the person that when he was sentenced, he was sentenced within a certain context under which a person could apply for the eligibility.

Even though the discretion is left to the board, nevertheless the right would be affected once the decision has been taken. In my opinion, the principle of the retrospectivity in that context is unconstitutional.

Senator Baker: The intent of this amendment that was made to the private member's bill in the House of Commons is spelled out in the following words: The reason for the amendment is that currently, as the bill was drafted, it would apply only to offenders who had not yet been sentenced at the time the bill was changed, and in fact we wouldn't see the fruits of this particular bill until many years into the future. That intent to immediately see the period of imprisonment stretched out in prison is the intent as spelled out.

Wouldn't Senator Joyal agree with me that a court would look at the intent of that particular amendment and say, "This is unconstitutional"? Well, you said it was unconstitutional, Senator Joyal. I have not heard you say that many times in the past — only three times, and you were correct. But isn't that the intent, to stretch out, as the mover of the amendment said, to see results now and not have to wait down the road?

Senator Joyal: I can't say it better than the sponsor of the amendment. There was no doubt that the amendment was to catch those already in the system. It was made with that very specific purpose. It was not conceived on the substance of the original intent of the bill.

The Hon. the Speaker pro tempore: I am sorry to interrupt, but I must advise that the honourable senator's time has expired.

Senator Joyal: May I have a couple more minutes to answer the question?

The Hon. the Speaker pro tempore: Senator Joyal is asking for five more minutes, if the chamber would grant it.

Hon. Senators: Agreed.

Senator Joyal: There was no doubt that the way the drafter of the bill conceived the bill, it was to rule future situations down the road, for new prisoners, if you want, who would be sent to prison and would be subjected to parole ineligibility that the bill strengthened. There is no doubt about that.

During the debates on the bill, there was mention that some of the prisoners should be submitted to this new regime while they are already in prison, and it was agreed they would change that so that those already in prison would be caught by this. And that is what the Supreme Court has said you cannot do, because you are changing the ineligibility at the time the sentence was given, and in doing that you infringe the Charter, section 11(g). It's as simple and as clear as that. That's why I conclude that this bill, in my humble opinion, is unconstitutional.

The honourable senator is right. There were times I stood up here in the chamber and said that there are constitutional issues in relation to a bill. I explained in those circumstances the origin of my doubts and what kind of interpretation could be given to a section, but in this case it's plain to me. Why? The Supreme Court ruled less than a year ago on that very specific issue, and, as I said, the court has pronounced in clearer terms than it has ever done on this issue of parole ineligibility changes in times of application.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Hon. the Speaker pro tempore: All those in favour of the motion in amendment will signify by saying "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those opposed to the motion in amendment will signify by saying "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: In my opinion, the "nays" have it.

And two honourable senators having risen:

The Hon. the Speaker pro tempore: Do we have an agreement on the bell?

Hon. Elizabeth (Beth) Marshall: Thirty minutes.

The Hon. the Speaker pro tempore: We have a 30-minute bell, thus we will be voting at 3:29 p.m.

Call in the senators.

Motion in amendment negatived on the following division: