June 8 2000

Ms. Albina Guarnieri, Member of Parliament, Sponsor of the Bill:
I would like to begin by thanking the members of the committee for being present today.

Madam Chair, I should like to begin by thanking members of the committee for taking the time to consider my bill amid all the other bills that are currently before you. As well, I must thank Senator Anne Cools for sponsoring my bill and for all her wisdom and efforts on my behalf. I am also grateful to my seconder, Senator Nick Taylor, who was kind enough to second the bill. It would be remiss of me not to thank the gracious Senator Di Nino, who has played a very non-partisan role in supporting my bill, as well as many others of alternative political stripes who have been so supportive over the past many months.

Honourable senators, with your permission, in order to provide senators with the best precise answers, I am joined at the table by Scott Newark, a former Crown prosecutor, executive director of the Canadian Police Association, now acting as special counsel for the newly created office, Victims of Violence, recently established by the Government of Ontario, and Mr. Gerald Chipeur, who was good enough to fly in from Calgary on one day's notice. He is a constitutional lawyer and partner with the firm Fraser Milner Casgrain. Mr. Chipeur is currently arguing a number of cases before the Supreme Court, including the question of prisoner voting rights and university academic freedom.

Madam Chair, before I get into the substance of my text, I would also like to mention that there are individuals in the room who are here to support this initiative, and some of them need absolutely no introduction. Two of my colleagues are in the room, John Reynolds and Chuck Cadman, and they have asked me to let it be known that they are more than willing to make representation if you choose to call upon them.

The Chairman:
I believe Mr. MacKay has just joined us as well.

Ms Guarnieri:
Thank you, Peter, for coming. I also see people from the office of Victims of Crime, Victims of Violence, the Toronto Police Association, the Police Association of Ontario, the Ottawa-Carleton Police, and the CPA. I am sure I have forgotten someone in this august group, so please forgive me if I have left someone out.

It has now been four years since I first introduced Bill C-247, a bill that seeks to end automatic concurrent sentencing for multiple murderers and rapists.

This bill is a response to the reality that Canadians see all too frequently and that victims of crime and their families suffer all too painfully. It is the reality that serial killers are guaranteed that a second, third or eleventh murder will not delay their parole eligibility date. It is the reality that serial sex offenders can also count on getting concurrent sentences that ignore the extent of their crimes despite so-called rules of thumb that are in fact almost never applied.

During the life of this bill, I have been contacted by many Canadians who have experienced the full injustice of the courts. I have heard from families devastated by the loss of a child and by the fact that concurrent sentencing has robbed them of any sense of justice. I have heard from women who have gone through the emotional wringer of a sexual assault trial to find that the offender has received not a single day of added jail time for the crime they personally endured.

Currently, the vast majority of sex offenders in federal prisons are in fact multiple offenders who have benefited from concurrent or merged sentences and who have left a trail of injustice and tragedy across this country, affecting many thousands of victims.

During the debates in the Senate, I took care to study the remarks of honourable senators, and I will attempt to address the key considerations in my brief remarks, starting first with the notion of vengeance and the suggestion that this bill is somehow not consistent with the principles of sentencing.

In his book on the general principles of sentencing, noted defence lawyer Clayton Ruby sets out the difference between retribution in the criminal context and vengeance. He says:

The Supreme Court of Canada suggests that retribution is the unifying principle of criminal law that offers the essential conceptual link between the "attribution of criminal liability and the imposition of criminal sanctions."

Having said that, the Court recognizes the need to clarify the meaning of retribution:

Retribution in a criminal context [in contrast to vengeance] represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint, retribution requires the imposition of a just and appropriate punishment and nothing more.

Madam Chair, I believe that you will find that my bill conforms to that principle of restraint while delivering a more just and appropriate punishment than the current law.

One case in point: just two months ago, on April 8, in North Bay, Gregory Crick was found guilty of two murders. Mr. Crick was found to have murdered Louis Gauthier back in April 1996. A witness to that murder went to the police. Gregory Crick proceeded to murder that witness in retaliation. However, when he was finally sentenced, not one day could be added to Mr. Crick's parole ineligibility for the murder of that witness.

The first two principles of sentencing, which are often recited, require judges to denounce harmful conduct and to defer the offender or other persons from committing further offences. The current law did not allow the judge to meet that standard in the Crick case.

If the judge had the provisions in Bill C-247 available, he could have responded to the vengeful and murderous act of Mr. Crick with an additional term of parole ineligibility that would be sufficient to satisfy the principles of deterrence and denunciation. The bill is not about vengeance. It is about proportionality and fairness within our principles of sentencing.

Currently, a judge in a second-degree murder case can set parole ineligibility within the range of 10 to 25 years. My bill would simply extend the same kind of discretion to all cases involving multiple murders. For instance, in first-degree multiple murder cases, a judge could set a parole ineligibility period within the range of 25 to 50 years.

Last summer, there was one particular case where the Crown actually tried to delay sentencing in the hope that the changes I am pursuing might be rapidly passed. It was the case, as all of you will recall, of Adrian Kinkead, who was tried and convicted of the brutal murderers of Marsha and Tammy Ottey in Scarborough, a process that took three and one half years.

Mr. Kinkead was given a mandatory life sentence with no parole for 25 years. However, Mr. Kinkead was already under a life sentence with the same parole ineligibility, after being convicted of a completely unrelated murder. As such, the murders of the Ottey sisters could have no bearing on Kinkead's parole ineligibility date.

The Crown prosecutor in the case, Robert Clark, asked the judge to delay sentencing until the bill before you today could be passed. His stated intent was to permit the judge to extend the period of parole ineligibility to reflect these additional murders.

Bill C-247, of course, has not passed, and the net result of Mr. Kinkead's conviction for these two murders is that not one single day will be added to his existing sentence.

I ask you, what principle of sentencing is being served by such a meaningless result? Why should families of victims view such sentences as anything other than a mockery to any notion of justice? No wonder public confidence in our justice system has been eroded by such outcomes. I ask you if this is the best of which we are capable.

Would this bill violate a principle of sentencing? I ask you to look at those principles one by one, and I think you will find that the current law fails four, if not five, principles in respect of the treatment of multiple murderers. It fails to denounce harmful conduct, such as the murders of the Ottey sisters. It fails utterly to provide any deterrence to the murder of a witness, as in the Crick case. It fails to separate offenders from society where necessary, causing additional people to be harmed by paroled murderers who are statistically proven to be 10,000 per cent more likely to kill than the average Canadian. It fails to promote any sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community as crimes against many victims are rendered irrelevant to the sentence.

Moreover, I would argue that the current law even fails to assist in rehabilitating offenders, as multiple murderers and serial rapists are given a very clear message that the number of past victims does not matter, so why should the number of future victims matter, either?

No principle of sentencing is served by maintaining the status quo in terms of the sentencing of multiple murderers and rapists. I would argue that my bill performs better in terms of denunciation of harmful conduct, deterrence, public safety, acknowledgement of harm, and even rehabilitation.

I do not accept that there is any violation of the principles of sentencing. However, would a sentence of longer than 25 years without parole violate the Constitution, as some would argue? I can tell you that the only constitutional lawyer who appeared before the Commons committee, and I am privileged to have him sitting here today, offered his legal opinion that my bill was constitutional even when it called for mandatory consecutive sentencing. You will recall that the government itself brought in mandatory consecutive sentencing for firearms offences.

In its current form, with extensive judicial discretion and no mandatory penalties, I believe that constitutional objections are rapidly becoming arguments of last resort.

One last argument that I would like to address is the exhausted notion that life is life -- that a life sentence means just that. The fact is that multiple murderers are released into the community on an average six years after they are eligible for parole, and some within a year of their eligibility.

A monthly visit to a parole officer hardly compares with prison, certainly not in terms of public safety, as Wendy Carroll of Mississauga learned. She is still recovering from having her throat slashed and being left for dead by two paroled multiple murderers just 10 minutes away from my home. They were on life sentences, but they were free and they did try to kill again.

Life only means life for the victims of these offenders.

The term of parole ineligibility is the true measure of any sentence. It is the only certain period that must be served. It is the only definite period during which the public is protected from further offences. It is the only definite period when victims' families can get on with their lives without fearing early parole.

Honourable senators, it is more than clear from polling data and from the vote of their elected representatives that Canadians broadly recognize the importance of consecutive sentencing in terms of delivering justice and improving their own safety. In fact, 90 per cent of Canadians polled by Pollara supported mandatory consecutive sentencing for multiple murderers and rapists with none of the judicial discretion contained currently in Bill C-247. Their elected representatives in the House of Commons supported the current amended bill by margins as large as four to one.

In the case of consecutive sentencing for sexual assault, 92 per cent of women polled supported this concept on a mandatory basis. Bill C-247 does not go that far. It restores the so-called rule of thumb that consecutive sentences would apply in the case of serial rapists. At present, that thumb is broken. Whether it is the Rohipnol rapist with 21 victims, or Graham James, who victimized boys over a 14-year period, concurrent sentencing is the standard penalty with extremely rare exceptions.

At the very least, we must restore consecutive sentencing as the standard in multiple sexual assault cases. As I mentioned earlier, the bulk of offenders incarcerated for sexual assault are in fact multiple offenders with concurrent terms, according to Corrections Canada testimony. As it is virtually impossible to assault more than one woman in a single continuous act, we know that the so-called rule of thumb that would impose consecutive sentences for separate crimes of sexual assault is not in force and that concurrent sentencing is, indeed, the norm.

When a judge determines that a crime of sexual assault is dissolved in a broader sentence, the victim is owed at least oral and written reasons as to why the offences against her do not result in any incremental prison time. My bill would require those reasons.

Recently, I was sent a judge's extensive reasons for his decision in relation to a case of a heroin addict who did not get promoted within the ranks of a chartered bank. I think that rape victims deserve no less respect.

To sum up, let me read you the thoughts of Mr. Justice MacKeigan of the Nova Scotia Court of Appeal:

A so-called concurrent sentence does not sentence the convicted person to a term of any imprisonment at all, since it does not require him to serve a single day of imprisonment. A judge, in imposing a concurrent sentence, is not carrying out his duty.

A concurrent sentence is no sentence at all. That is what Mr. Justice MacKeigan has said. I put it to you that not giving a sentence for crimes as brutal as murder and rape is no justice at all. Our justice system must do better for Canadians.

I would ask you to consider what your response might have been were it the case that Bill C-247 was the existing law and a bill was proposed which said that multiple murderers should be guaranteed parole at 25 years, no matter how many people they have killed, and that serial rapists should not generally be sentenced to consecutive terms for each victim but serve not much more than the penalty for one single offence. I do not think that anyone in the House of Commons would dare to propose the status quo to Canadians in such clear and precise terms. Why then would we defend it now?

For Further information contact:
Robert Cline
(905) 566-0009
guarna@parl.gc.ca