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Speech in Senate Chamber: Senator Cools sponsors M.P. Albina Guarnieri’s bill, Bill C-247, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences).

Hon. Anne C. Cools moved the second reading of Bill C-247, to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences).—(Honourable Senator Cools).

 

She said: Honourable senators, I rise to move second reading of Bill C-247 and to begin the debate on this bill.

  

Currently, multiple murderers can receive no incremental sentences, not one day, not one hour, for the second, third or even the eleventh life taken in the brutal murders that they have committed. Bill C-247 challenges the notion that multiple murderers should be guaranteed a chance for parole after serving 10 or 25 years of their life sentences, regardless of the number of murders they have committed. Albina Guarnieri's bill will remove that guarantee and will give judges the opportunity to pass sentences that are proportionate to the crimes. It will give judges the full flexibility to add just one day or one year, up to an additional 25 years. The only murderers who will ever face this possibility would be murderers convicted of multiple murders.

 

Bill C-247 was Bill C-251 in the last session of Parliament. Bill C-251 was received here in the Senate on June 8, 1999, in the dying days of the session. On June 17, the Senate recessed for the summer and resumed on September 7. On September 17, Parliament was prorogued. Consequently, Bill C-251 died on our Order Paper. On October 19, in the House of Commons, Albina Guarnieri introduced her Bill C-247, renumbered from Bill C-251. Bill C-247 received first reading in the Senate on November 2.

  

Honourable senators, this bill's journey through the Commons has been a four-year journey, in four numbered incarnations, being Bill C-274 and Bill C-321 in 1996, then Bill C-251 in 1997, and now Bill C-247. Its journey tells of the relevance of the opinion of the House of Commons to the cabinet and to the responsible minister. Bill C-247 is a private members' bill developed, advanced and sponsored in the House of Commons by Albina Guarnieri, the Liberal Member of Parliament from Mississauga East, near Toronto.

  

This bill responds to a major and pressing social issue — the condition of criminal justice in Canada. Albina Guarnieri has asked me to sponsor her bill here and to shepherd it through the Senate. I hold her in high esteem. She has endeavoured tenaciously to bring this bill forward in the face of many deliberately placed hurdles. I commend her. I thank her. All Canadians are indebted to her. I have supported her in these efforts, particularly in the difficult business of enduring the brutal blows that are meted out within one's own political party caucus, an area of human relations in need of serious introspection.  

  

Honourable senators, Albina Guarnieri and I together attended the section 745 hearing of inmate Clifford Olson in Surrey, British Columbia, on August 18, 1997. There were no arrangements made by the Attorney General or the courts for members of Parliament to observe this hearing. Liberal House of Commons members Dan McTeague and Paul Steckle also attended, as did John Nunziata, a former Liberal member and now an independent, as did several Reform Party members. Christie Blatchford aptly described that hearing. In her Toronto Sun article of August 19, 1997, entitled "Clifford Olson's `macabre circus'," she wrote:

  

Liberal Sen. Anne Cools was so outraged she was almost incoherent, mumbling that the "macabre circus" inside the court was so malevolent she had to do something fast to get her blood sugar up or she couldn't listen any more.

  

Honourable senators, on December 1, 1998, during her testimony before the Commons Standing Committee on Justice and Human Rights on Bill C-251, now Bill C-247, Albina Guarnieri described that day's section 745 hearing, presided over by the British Columbia Supreme Court Justice Richard Low, with an insight of inmate Olson. She said:

  

For me, the most alarming moment in the Olson hearing occurred when Olson read out a letter from his lawyer advising him to admit to all his murders at once. This way, the lawyer indicated, Olson could take full advantage of concurrent sentencing.

  

 Inmate Olson said that his lawyer advised him to take full advantage of concurrent sentencing.

  

Albina Guarnieri continued:

Olson mocked in the court, "They can't do nothing. They can only give me a concurrent sentence."

Just to give you a little taste of the other advice coming from Olson's esteemed member of the bar, Olson quoted a letter to him from his lawyer that said:

 

Let's plan a program, of which the first thing is to see that you are thoroughly protected from repercussions by overzealous boy-scout policemen.

 

Concurrent sentencing is advantageous for malevolent first- and second-degree multiple murderers. Albina Guarnieri has placed this burning public policy issue of criminal sentencing squarely before us, particularly the sentencing of cruel, wilful, incorrigible and malevolent multiple first- and second-degree murderers. This is sentencing for truly evil acts. "Evil" is a word rarely used because its use demands a definition of "good" and of the source of "good". Further, these words "good" and "evil" compel a moral debate and a debate on the notion of a transcendent being, a deity, God as a source of all goodness. In today's public square, public policy development and debate on these questions are devoid of moral conviction, resulting in what some have called "the naked public square." Many current political leaders have sought to divorce politics from morality and to divorce public office from personal conviction, claiming that they do so in the name of moral neutrality. Public and political debate in Parliament, in the public square, in the absence of principles and moral convictions, is a hollow and a failed debate. Debate in the public square and in Parliament absolutely requires that the participants bring their moral and ethical convictions to the debate, and that debate must include moral grounds.

  

Honourable senators, in recent times, many have declined to admit to the existence of human evil and that it has few explanations and theories. The very few explanations of evil that have been developed are theological. Yet, theological explanations are dismissed today in the name of moral neutrality. However, those who work in prison services, in policing, in prosecution and criminal law, and in human services — also in politics and political relations — understand that human evil exists. It does exist. They know also that human evil will damage anyone who comes too near. The nature and character of evil is to damage, hurt and impair good.

  

A psychiatrist, also a Roman Catholic, Dr. M. Scott Peck wrote about evil in his book, People of the Lie: The Hope for Healing Human Evil. About evil, which rightfully frightens most people, Dr. Peck wrote at page 42:

  

It is a reflection of the enormous mystery of the subject that we do not have a generally accepted definition of evil. Yet in our hearts I think we all have some understanding of its nature.

  

This learned psychiatrist informs us that there is no generally accepted definition of evil and of the enormous mystery and deficit in our comprehension of human evil. Dr. Peck also wrote at page 46:

  

Suffice it to acknowledge that although we do not yet have a body of scientific knowledge about human evil worthy of being dignified by the term `psychology', behavioral scientists have laid a foundation that makes the development of such a psychology possible. Freud's discovery of the unconscious and Jung's concept of the Shadow are both basic.

  

Understanding our deficit in the knowledge of evil, he upheld Dr. Eric Fromm's attempt to study it. Dr. Peck added at page 47:

My own experience, however, is that evil human beings are quite common and usually appear quite ordinary to the superficial observer.

  

Honourable senators will recall that many commentators reported on how normal and ordinary Paul Bernardo and his wife Karla Homolka looked and seemed.

  

Honourable senators, the Clifford Olsons and the Karla Homolkas are not ill, mentally or physically. They are just bad. All can agree that the wilful, deliberate, cold-blooded, repeated taking of lives of other human beings is evil. The repeated acts of wilful, cold-blooded murders of humans, especially vulnerable, defenceless children, in brutal ways, in brutal acts of disordered sexual impulses, in paraphilias, and disordered sexual gratification, is evil. Such evil is not amenable to treatment or cure. Further, the current concept of mental illness and mental disease fails to explain and respond to evil because these offenders are not in a state of sickness or disease. The word "disease" means "dis" "ease" — without ease. They are not "dis" "eased" with their behaviour; they are quite at ease with it.

  

Inmate Olson is quite at ease with his condition. He signs his letters "Clifford Robert Olson, SERIAL KILLER of 11 Children." I received a letter from him signed in that manner. I raised a question of privilege here in the Senate on April 23, 1996, under rule 43(1) in respect of this letter. The Speaker of the Senate ruled that there was no prima facie case of breach of privilege. The fact is that letters from inmates in prison to senators and members of Parliament must be forwarded to them by prison authorities precisely because of parliamentary privilege. Inmate Olson's condition is not curable by medical doctors who treat persons who are ill. Inmate Olson is not ill and he is not sick — he is bad.

  

Honourable senators, this public policy question of sentencing and punishment in criminal justice is demanding Parliament's attention. Yet sadly this question continues to be ignored and neglected by Parliament. It appears that ministers and departments are content that Parliament be shut out of policy development on this crucial issue. This fact was made clear to me when my own two separate Senate initiatives, my bills about inmate Karla Homolka and the questionable plea agreements, were arrested summarily and withdrawn from Parliament's consideration. In the first instance, in 1995, my first bill, Bill S-11, an act concerning one Karla Homolka, was defeated when the Senate Speaker ordered it struck off the Order Paper prior even to my motion for second reading and without any debate whatsoever. When reintroduced in 1997, renumbered as Bill S-16, an act concerning one Karla Homolka, the Speaker again ordered it struck off the Order Paper.

  

In the second instance, in 1996, on Bill S-3, an act to amend the Criminal Code (plea bargaining), my bill on plea bargaining was arrested without, in my opinion, proper and sufficient committee study, without proper debate and without hearing a single public witness. The only witnesses heard by the Legal and Constitutional Affairs Committee on Bill S-3 other than myself were Department of Justice officials, Mr. Yvan Roy and Mr. Fred Bobiasz, counsel in the Criminal Law Policy Section. They basically told the committee to defeat the bill. The committee never granted me my parliamentary right to reappear before the committee to answer Mr. Roy's and Mr. Bobiasz's testimony, testimony which I believed was political advice and not legal advice, as the committee rushed to defeat the bill.

  

My opponents were unwilling to have any debate or study whatsoever. They could have amended the bill or even defeated my parliamentary measure after robust study and debate. Instead, they withdrew the question from parliamentary consideration and debate. This country needs a proper and thorough parliamentary study of plea bargaining and plea agreements, particularly plea agreements with multiple murderers, including inmate Homolka and inmate Olson.

  

Honourable senators, at inmate Olson's section 745 hearing in Surrey, British Columbia, I learned that the same Mr. Yvan Roy of the Department of Justice was on site, providing helpful assistance to the media. Christie Blatchford, as already cited, noted the presence of these government persons in Surrey. She wrote:

 ...the folks from justice had gathered to provide `information' about the controversial section.

She reported that those folks were Irene Arsenault, Manager, Media Relations, Public Affairs Division of the Department of Justice; Fraser Simons, Regional Director of the National Parole Board, Abbotsford Region; and, in Blatchford's own words, "the wheel" Yvan Roy. As you will recall, the engineers of the Homolka plea-bargain agreement were Ontario's Deputy Attorney General George Thomson and his Assistant Deputy Michael Code. I further note that, when my Homolka bills were before the Senate, that same George Thomson had become Deputy Minister of Justice to Minister of Justice Allan Rock here in Ottawa and, simultaneously, had become Mr. Roy's — "the wheel's" — boss.

 

Honourable senators, in Canada, parliamentary opinion on the administration of criminal justice is unwanted, particularly on the subject of punishment and sentencing. Bill C-247 is an unwanted parliamentary opinion that passed the Commons by majority vote, despite the fact that it was unwanted by the Minister of Justice. Clearly, the minister's desired opinion was not the opinion of the majority of the Commons. Observers are watching to learn if the Minister of Justice's opinion will prevail here in the Senate.

  

Albina Guarnieri asked us to consider this important question related to criminal justice, that is, the sentencing and punishment of malevolent murderers. She also posed the question of the representative parliamentary principle in making sentencing public policy, and most important, she posed the question of the value of a single human life in a judge's sentencing. Her real question is the value, the actual worth, of a single human life in the sentence of the murderer who has taken the lives of those for which he or she is being sentenced. On December 1, 1998, Albina Guarnieri told the Commons Standing Committee on Justice and Human Rights that:

  

I have come here today to ask for a full hearing on a perverse manipulation of justice that takes place without public input and without the support of Canadians. Concurrent sentencing is a mutation of justice that has resulted in sentences that bear no reflection on the severity of the crimes committed and all too often completely disregard the impact of a predator on the second, third, or eleventh victim.

  

Canadians never voted for concurrent sentencing. They were never asked if their identity, their Canadian identity, depended on having a more lenient sentencing system that includes volume discounts for rapists and murderers. Concurrent sentencing is foreign to the basic concept of justice.

  

The fact is, Canadians believe every act of murder or sexual assault, every victim, should matter in the sentencing equation.

 

In giving the committee the results of a poll that she herself had commissioned, one conducted by Liberal Party pollster POLLARA, she continued:

 

That is why 90% of Canadians support changing the law to ensure that people convicted of several murders or sexual assaults serve consecutive sentences for each offence.

  

That is the result of a national survey by POLLARA, conducted just last month. It also found that a mere 8% of Canadians support the status quo.

  

Our political and parliamentary condition is made manifest when members, who are representatives, must use pollsters rather than reasoned debate to convince the political masters of the body public opinion. Albina Guarnieri continued to explain her bill as follows:

  

Bill C-251 seeks the recognition that each crime committed of the gravity of murder and sexual assault requires a response from the justice system. It is based on the principle that law and the rule of law must operate to protect individuals equally. If all victims, after the first victim of a sex offender or a murderer, are disregarded through concurrent sentencing, this principle is compromised.

  

The intent of my bill is to require that there be a consequence for each violation of the law. Consecutive terms of parole ineligibility for multiple first- and second-degree murders and a consecutive sentence for each sexual assault would result in proportional justice that is closer to the fair and balanced justice system Canadians want.

  

Honourable senators, Bill C-247 builds legislatively on the government's ground in the government's own Criminal Code section 745, even as amended in 1996 by Bill C-45, to amend the Criminal Code (judicial review of parole ineligibility). As we know, life imprisonment is the minimum sentence for first- and second-degree murders. This was the 1976 political compromise to obtain agreement for the abolition of capital punishment. Life as a minimum sentence for first- and second-degree murders was enacted with a fixed quantum of that imprisonment that the offender actually must serve in the penitentiary before eligibility to apply for parole. For first-degree murder, the parole eligibility date was set at the completion of 25 years of imprisonment and for second-degree murder at the completion of 10 years.

  

Honourable senators, the life sentence for first-degree murder and the 25 years of imprisonment actually served before eligibility for parole is frequently confounded in the public mind. A sentence of life imprisonment means precisely that — a sentence of imprisonment for life. The length of the inmate's warrant is that of his natural life. The inmate's warrant of sentence expires on the day the inmate dies. The terminology used by Corrections Canada is "warrant expiry date," abbreviated as WED. Their sentence is life imprisonment. There is much confusion about this. Many believe that the sentence of life imprisonment means 25 years and not life. The specified 25 years refers to the quantum of that life sentence that must be served in prison before the date of parole eligibility, at which time the inmate may apply for parole to the National Parole Board. Parole is that system of royal mercy, or royal clemency, that allows a sentenced prisoner to continue to serve his sentence outside the prison walls within the community. Another form of royal mercy was the commutation of death sentence to life imprisonment. That was statutorily achieved administratively in the 1976 political compromise to abolish capital punishment, but it is now compromised by developments in the sentencing process which compromise justice itself. The reality is that the 25 years to parole eligibility date has now become the real and practical sentence for murderers and multiple murderers.

  

Honourable senators, section 745, popularly styled the "faint-hope clause," enables first- and second-degree murderers, after having served 15 years of their sentences, to apply to a superior court for a judicial review of their parole eligibility date, asking the court to reduce the quantum of imprisonment to parole eligibility date. In 1996, the government's Bill C-45 amended this section 745 to disallow multiple murderers from applying for judicial review of their parole eligibility date. By this, the government accepted a large part of Albina Guarnieri's reasoning, admitting that multiple murderers must serve longer sentences prior to their parole eligibility date.

  

Honourable senators, I had questioned the very existence of section 745 and proposed that it be repealed because of its obvious insufficiencies in my 1996 Bill S-6, to amend the Criminal Code (period of ineligibility for parole). About Bill C-45, I had asserted that it was an amendment to an already flawed section 745. In debate on December 12, 1996, I said:

  

Honourable senators, in 1976, section 745 of the Criminal Code granted the courts unusual powers to review the sentences of upper courts — powers normally reserved to courts of appeal, to clemency agencies, or to governor generals themselves. It granted courts the unusual powers to alter sentences imposed by the sentencing courts. This is something reserved for the courts of appeal and for the clemency authorities.

  

Section 745 took the unusual step of conferring the power of clemency upon the courts. Such powers of clemency rightfully belong with the clemency granting agencies. The power to grant clemency to the already convicted and sentenced belongs with the National Parole Board of Canada, the Crown, the Sovereign and the Governor General's royal powers of mercy, and royal prerogative of mercy, which are exercised on the advice of a responsible minister. That is to say, exercised on the advice of the executive.

  

Bill C-45 will grant these powers to chief justices which will diminish the powers of Parliament to respond to the will of the people. It will, in turn, enhance the powers of the chief justices. As we know, constitutionally, these powers do not properly belong with the chief justices or the courts because they are political powers. These are powers exercised by the representatives of the body politic.

  

The issue of imposing sentences belong to the courts, but the issue of sentence mitigation, sentence alteration and mercy are political questions and belong in political hands — that is, in the hands of responsible ministers and exercised by cabinet, who are responsible to Parliament. These questions should be dealt with by people who will answer to the public will for the exercise of these powers. Her Majesty's clemency and mercy powers are not the proper business of the courts or of judges but, rather, are matters for the executive. They are executive powers.

  

Honourable senators, to create her bill for consecutive sentencing, Albina Guarnieri built on the very same ground created by the government in section 745, which granted judges the jurisdiction to determine parole eligibility dates. For multiple malevolent murderers, Bill C-247 enacts that on sentencing for additional murders, judges may expand the parole ineligibility period by adding years to be served before parole eligibility dates, but limits these additional years to a maximum of 25 additional years. Alternately stated, it limits judges' powers in sentencing to a total of 50 years imprisonment before the inmate's eligibility for parole date. Section 745 was a 1976 political solution resulting from a 1976 compromise. New solutions are required, and the absence of new solutions for the virulent psychopathies will fuel the public's lack of confidence in the system and fuel the public clamour for a return to capital punishment. Bill C-247 is a year 2000 compromise, resulting from the current practices and insufficiencies in section 745, and in sentencing malevolent offenders in general.

  

Honourable senators, the reality of homicidal psychopathies and psychopathologies is that psychopaths and sociopaths are more devious, cunning and more ingenious and resourceful than the authorities. Apprehension and successful prosecution of malevolent offenders is difficult, and these offenders take advantage of prosecutorial difficulties. The cases of inmate Olson and inmate Homolka make that abundantly clear. The fact that inmate Homolka is going back to court to sue the government proves my point.

  

Honourable senators, criminal justice, its processes of prosecution, plea agreement, sentencing and parole are compelling Parliament's review. At inmate Olson's section 745 hearing, I witnessed this colossal caricature of justice. The presiding judge presided over a political hearing. That hearing was a political one, not a legal one. The judge and jury and everyone present in that room knew this. We do judges and judicial independence a terrible disservice to engage judges this way. I have no doubt that the majority of Canadians could see inmate Olson drawn, quartered, pilloried and beheaded without flinching, because his crimes were and are so repugnant to our own sense of humanity, but we do not believe in capital punishment. That is why we are where we are today. Inmate Olson has cost this country billions of dollars with his many legal frolics, lawsuits, and so-called legal battles, including his section 745 hearing. Sadly, the one good purpose that his notoriety has served is to keep him behind bars. I can tell you that no one will let him out. His most natural equivalent is Karla Homolka.

  

Honourable senators, I served as a member on the National Parole Board. I studied many files, autopsy reports, police reports, judgments and judges' sentencing statements. I interviewed many inmates and granted and revoked many paroles. I learned that the wilful homicidal impulse of such offenders, accompanied by their predatory instincts, executed by their characteristic for deceit is very rare, but it is more common than either we think or we care to admit. These predators' ability to choose victims by attaching and exploiting their victims' vulnerability is diabolical. Little is said in these chambers about paraphilias and psychopathy, psychopaths, sociopaths, character disorders and evil. The disordered erotic, homicidal impulses of the Homolkas and the Olsons and their consequence for justice need debate. Their lack of human pity, their calculated deception, their disordered sexual lusts, their aggression, and their total narcissism and corrupted self-extravagance is beyond the comprehension of most of us. However, their ability and their success in manipulating people and systems, particularly democratic systems, and their reliance on people's disbelief and naiveté is needing our study. In his book On Sexuality: Three Essays on the Theory of Sexuality and Other Works, Volume 7, Dr. Sigmund Freud wrote about disordered sexual impulses. He said, at page 111, 1979 Penguin edition, that:

  

The absence of the barrier of pity brings with it a danger that the connection between the cruel and the erotogenic instincts, thus established in childhood, may prove unbreakable in later life.

  

We are talking now about malevolent sexual deviants here. We are talking about sentencing for crimes and murders actuated by cruel, incorrigible, homicidal, erotogenic impulses.

  

Honourable senators, the exercise of the sovereign power in the punishment of crime is one of the essential aspects of the administration of justice. Michel Foucault, France's scholar on punishment, in his masterpiece book Discipline & Punish: The Birth of the Prison, wrote about the sovereign's rights and powers in justice, retribution, and the royal prerogative under which all prosecutions, trials and sentencing ensue. He wrote, at page 48:

  

The right to punish, therefore, is an aspect of the sovereign's right to make war on his enemies: to punish belongs to `that absolute power of life and death which Roman law calls merum imperium, a right by virtue of which the prince sees that his law is respected by ordering the punishment of crime....But punishment is also a way of exacting retribution that is both personal and public, since the physico-political force of the sovereign is in a sense present in the law': ...

  

Honourable senators, I repeat, retribution. In our system, the language we use is the royal prerogative in justice. The Queen's presence in the law, as in the lexicon Regina v. Homolka, proves clearly the right of every citizen to justice from the Queen, the fount of justice. It proves the right to justice of both the accuser, the Queen, and the victims, like little Leslie Mahaffy and little Kristen French, mere children. Debra Mahaffy, Mr. Mahaffy, Mr. and Mrs. French, Darlene Boyd, Wendy Carroll and countless others have a right to the Queen's justice, in whose name each prosecution and trial is undertaken, and in whose name mercy and clemency, as in parole and remission, are granted. Punishment and sentencing for crimes stand on the principles that are described as deterrence, incapacitation, rehabilitation, and retribution. Retribution, as distinct from vengeance, is the just result of the offender's own injury offered by that offender against the Queen's peace and against the persons who are the Queen's subjects and, in the cases mentioned, all children. Retribution of the Queen's justice can always be tempered by the Queen's mercy.  

  

Honorable senators, the need for reform in criminal justice is evident. It is overdue. Nova Scotia Court of Appeal Justice MacKeigan articulates the case for consecutive sentencing most soundly. In his 1975 judgment in R. v. Muise, he wrote at page 443:

  

That belief, to which I still adhere despite the very able argument of counsel for Muise, flows from my conviction that the law, in conferring the power and imposing the duty on a Judge of sentencing a convicted person to a term of imprisonment, should not be construed as forcing the Judge in any case to make a term of imprisonment on a second offence concurrent with the term imposed by him or some other Judge for another offence. 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 person cannot serve in jail the same day twice any more than he can be successfully hanged twice. A Judge in imposing a concurrent sentence is therefore not carrying out his duty unless he can find in the Code or the general criminal law authority so to do.

  

I ask all honourable senators to give Bill C-247 appropriate consideration and study. My experience of the universe and my career path have been different from others', but I tell you that one sees life quite differently when one has studied the kind and quality of cases that I have studied. I want to make it clear that, in this instance, we are speaking about malevolent, multiple murderers. We are not talking about the poor young fellow who is in a state of upset or anger with parents and who manages to find himself involved in an armed robbery. We are not talking about the traditional juvenile delinquent here. We are talking about people who set out very cold-bloodedly to take life and do so wilfully with premeditation and cruelty. Clearly it is time for the system and for us in this chamber to come to terms with psychopathy.

  

Hon. Sheila Finestone: Honourable senators, I would like to pose a question on the articulate, well-presented and carefully designed presentation about a very contentious and difficult bill. It would not be appropriate for me in this environment to say Senator Cools could have done a one-woman play — she could have — but I do suggest that the issue is a very difficult one.

  

Senator Cools is a very enlightened person in this field. Perhaps she could explain something to us, before we must make our decision: If a judge or a parole board cannot make a decision about a perpetrator of a heinous crime, for whom there is really no sufficient justice, then is there no way to prevent the use of this section 745?

  

Senator Cools: I thank the honourable senator for her question. That is the dilemma which has been posed by section 745 of the Criminal Code. As far as I know, most senators here are strong abolitionists who do not wish to see capital punishment ever used again as a system of punishment.

  

At the time that section 745 was enacted, it was not anticipated that each and every convicted murderer would avail himself or herself of that clause. What has developed in point of fact is an extremely routine use of that clause, and that is problematic.

  

The record on this is quite clear. In Bill C-45, the government and Mr. Rock, the justice minister at the time, made some changes to section 745 to provide some limitations. Bill C-247 advances the position that all those changes have been insufficient and that more are required.

  

I know many senators wish to speak on this bill. In my speech to close second-reading debate, it is my intention to bring forward the history of punishment and parole. I will lay out before the Senate the history of case law as it has developed in the last 20 years and how it has led to the current situation in sentencing.

  

Honourable Senator Finestone has hit the nail on the head. The issue needs our attention. I hope some of these issues will come out in debate.

  

Why do the judges not currently avail themselves of consecutive sentencing? We can look to Mr. Olson as an example because it is easier to use a particular subject who is well known and notorious.

  

Senator Finestone: He was very unusual.

  

Senator Cools: All murder is unusual, I submit. If one wanted to use the argument of unusualness, then we would need no laws against murder because murder, in and of itself, is an unusual occurrence. Otherwise our race would be extinct. That is quite true.

  

I have a host of information about these kinds of individuals. What is not that unusual among murderers are those committing murder again and again. That is not that unusual among that class of persons whom we would now describe as multiple murderers.

  

Some people, including Albina Guarnieri, believe a statute is necessary because of a need to codify the common law. Essentially, case law over the last 20 years has developed in a direction which has not encouraged judges to impose consecutive sentences. If one could roll the clock back to 1980 and try the case of a murderer such as Mr. Olson, perhaps he could have had a different sentence than his present 11 concurrent sentences of life imprisonment and the case law would be different.

  

We must remember the principle that a human being only has one life to serve. That is absolutely true. For example, in the United States of America sentences are imposed of 200 years or 300 years. We do not do that in this country. In the history of capital punishment there was a time when people were executed many times.

  

Therefore, a person could be sentenced to die for one crime by being beheaded, which was usually the path for the aristocrat. A person could be sentenced to die by being quartered, then dismembered, then boiled in oil. There used to be many, many different ways to kill the same person many times. In the 1790s, when Mr. J.J. Guillotin introduced the guillotine, however barbaric it seems to us in today's community, it was at that time thought to be a fantastic advance in the development of punishment.

  

It was deemed at the time that every human being had only one life to give; they should die one time only. When Mr. Guillotin introduced his reform, he said that a human being should die once only and it should be swiftly and quickly.

  

I hope I have assisted the honourable senator somewhat.

  

Hon. Pierre Claude Nolin: Did the Honourable Senator Cools say that Mr. Olson will never be free?

  

Senator Cools: Yes, I said something to that effect.

  

Senator Nolin: If this man will remain in jail for the rest of his life, would the honourable senator explain why the rule of law will permit this individual to remain in prison for the rest of his life?

  

Senator Cools: This is not a question of the rule of law. The sentence that was imposed on Mr. Olson was the sentence of life imprisonment, and the powers of the courts provide for a judicial review of his parole eligibility date after 15 years.

  

When I said that Mr. Olson would never be free, perhaps I should not have said "never". What I should have said is that, at this point in time, the entire system and every single person involved in the system with Mr. Olson is very well aware of the height of public repugnance and the depth of public feeling toward Mr. Olson. I am saying to honourable senators that that very strong public sentiment is a constraining factor. That was evident that day at the hearing in Surrey, British Columbia.

  

I am here to tell honourable senators, and Senator Nolin in particular, that if the public were to stop their Olson-watch for a moment, there is a possibility that, somehow or other, the man could be released. I have seen many inmates of whom I have heard it said that they will kill when they leave prison. When I say that I heard them say these things, I mean it was in the reports that they meant to go out of prison and kill. I tell the honourable senator that if he ever comes face-to-face, as I have in the system, with some of these individuals, he will find them pretty scary.

  

When we were studying Bill C-45, we had a list of section 745 inmates, some of whom I saw myself when I was on the National Parole Board. In particular, in looking at that list, I remember the name of one inmate who had pledged to everyone around that he would go out and kill again.

  

Senator Nolin: Let us be clear.

  

[Translation]

  

The Hon. the Speaker: Honourable senators, the allotted time for speeches and questions is over. Is it your pleasure, honourable senators, to extend this period?

  

Hon. Senators: Agreed.

  

[English]

  

Senator Nolin: Honourable senators, we need to be clear now. If the parole board is entitled to take a decision, the board is entitled because the law gives the board the authority to do it. When I speak about the rule of law, that is exactly what I am speaking about.

  

I am shocked that Senator Cools, as a former commissioner, was entitled to take such a decision as a commissioner. She is now telling us that at the time she was convinced that some of the individuals who came in front of her were future criminals, and she did not take action.

  

Senator Cools: Yes, we did.

  

Senator Nolin: Are they still in jail?

  

Senator Cools: In that particular instance, I revoked his mandatory supervision absolutely. He was returned. I am speaking of years later.

  

Senator Nolin: You are proving my case.

  

The law in Canada gives all the authority to the board and to different justice ministers and provinces.

  

[Translation]

  

I do not think such an individual can be rehabilitated.

  

[English]

  

What I am saying is that the laws presently in place, if properly administered, can cure such problems. That is my question; "yes" or "no"?

  

Senator Cools: I would say "no". The law and the administration of the law are insufficient and inadequate to the task.

  

Senator Nolin: If it is not sufficient, does the honourable senator think that two or three consecutive sentences would cure the problem?

  

Senator Cools: What I am saying to the honourable senator — and I think he knows quite well what I am saying to him — is that the principles of sentencing are four-fold, and any judge or jury that is looking at sentencing must balance those four principles one after the other.

  

One of the principles of sentencing is incapacitation — that is, whether the individual will be incapacitated from committing another crime. What I am saying to the honourable senator — who is reluctant to agree, but I shall do my best to persuade him in the next little while, although I admit it will be difficult — is that there is something needing correction.

  

Honourable senators, I happen to have with me a newspaper article which someone gave me a few days ago. I had never heard of this particular inmate before, but it is an inmate by the name of Adrian Kinkead. I can pass the clipping to the honourable senator, but this is an individual who was out and killed in between sentences.

  

I do not have all the details, as I have not read the case, so I am really at a disadvantage. It is just a newspaper article upon which I am relying for information. In this particular case, the Crown attorney asked the judge to reserve judgment until this bill had been enacted.

  

What I am saying to the Honourable Senator Nolin is that whether it is this case or another, the fact of the matter is that we are at a stage in our political development where Parliament must give these issues some attention and study. I do not expect to change the honourable senator's mind today. What I would like to persuade him to do is to study the matter carefully.

  

Senator Nolin: The honourable senator is asking this chamber to vote at second reading on a change in principle.

  

Senator Cools: There is no change in principle.

  

Senator Nolin: That is what the honourable senator is asking. You need to make your case because as yet you have not done so.

  

Senator Cools: There is no change.

  

Senator Nolin: In the honourable senator's last answer she referred to the four principles. I think colleagues should be informed or remember that up until a few decades ago we were whipping rapists in Canada.

  

Senator Cools: Sure, we used to execute them.

  

The remainder of this day's Senate Debates available here.