Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 60 - Evidence - Afternoon Session
OTTAWA, Monday, April 21, 1997
Afternoon session
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-55, to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, met this day at 2:03 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, we are here this afternoon to consider Bill C-55, an act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act.
In front of you is a copy of the opening remarks by our two witnesses. You also have a submission on Bill C-55 from the Canadian Bar. They will be appearing tomorrow morning on this bill. You also have the legislative summary from our researcher with the Library of Parliament.
With us now are David Whellams, Counsel, Criminal Law Policy Sector, and from the Solicitor General of Canada, Jennifer Trottier, Senior Policy Analyst, Corrections Policy. They have some opening remarks to make to us. They will also address the summary of recommendations by the Canadian Bar and give their perspective on that particular summary.
Please begin.
Mr. David Whellams, Counsel, Criminal Law Policy, Department of Justice: Thank you, Senator Carstairs. I would first propose to deliver the opening remarks, then follow up with commentary on the Bar Association brief, and then entertain questions. .
I thank the committee for inviting us here today to discuss Bill C-55.
I should point out that this bill is very much a joint project of Justice Canada and Solicitor General Canada. Although Mr. Rock's name is on the bill, Mr. Gray should be considered an equal partner in this project.
This legislation is central to the government's efforts to combat violent crime. The Canadian public has been telling us, as I am sure it has been telling you as legislators, that its biggest concerns in the criminal justice area are crimes of violence and crimes against children. When you combine violence with pedophilia, you have everyone's worst nightmare.
Bill C-55 tries to get at the problem of violent crime with three more or less new strategies, all of them involving amendments to the Criminal Code and the Corrections and Conditional Release Act.
The first of these strategies builds on 20 years of success with the dangerous offender law, found in Part XXIV of the Criminal Code. As you know, this special sentencing procedure allows the prosecution to seek an indeterminate sentence against criminals who commit a serious personal injury offence. "Serious personal injury offence" is defined in section 752 of the code.
One factor underpinning this law is a finding that the offender has shown a long pattern of violent offending and, also, that there is a strong likelihood of re-offending. In fact, our experience has shown that the dangerous offender procedure has proven successful in targeting the worst sex offenders, and I should add the worst non-sexual offenders, in terms of violent offending. A recent study by Solicitor General Canada revealed that 92 per cent of successful dangerous offender, or D.O., applications involved sex offenders.
Bill C-55 tries to improve the dangerous offender procedure in several ways. First, it will now be compulsory to impose an indeterminate or indefinite sentence whenever a dangerous offender finding is made. The existing law allows a definite sentence, although this has been the exception.
Second, the current law requires that a dangerous offender receive his first parole review after three years of incarceration. Bill C-55 changes this to seven years, and then every two years thereafter. It is important to apply parole review when the sentence is an indeterminate or indefinite one; however, the fact is that this group of offenders is unlikely to get parole after only three years of incarceration. We felt in preparing this legislation that seven years was the appropriate waiting period for the first parole review.
The third element in this area is the creation of a six-month "window of opportunity", as we call it, beyond conviction during which the Crown can bring a dangerous offender application. We see this extended opportunity as an important but limited innovation in the dangerous offender procedure. Cases do occur, in fact, where the Crown, through no fault of its own, cannot obtain all the relevant information needed to bring a convincing D.O. application. For example, criminal records may not be available of all old crimes, or perhaps the trial itself causes victims of old crimes to come forward after the sentence is handed down. It is important, if this kind of evidence comes forward, that it be available, because we are talking about, in dangerous offender application, a pattern of past offending. This change in the law gives the prosecution up to six more months, but only if new information comes to light. Also, the Crown must give notice at the time of the original trial of its intention to possibly bring a later application.
I will now move on to the long-term offender provisions in the bill. This is new. A class of sex offenders who may not fit into the dangerous offender category are the criminals who may not have used a high level of violence or brutality in the commission of their offences. Their sex crimes may involve, for example, sexual touching or exposure. These are serious enough, but they do not meet the high threshold of brutality required by the dangerous offender category as set out in the code.
Bill C-55 creates a new, special procedure for this group of sex offenders. It allows the court to add up to 10 years of intensive, long-term supervision to the regular penitentiary sentences of these offenders. The list of triggering offences for this category is found in proposed section 753.1(2) of the bill.
The threshold, as stated in the bill, for a long-term offender finding is as follows. On the one hand, the court must find that there is a "substantial risk that the offender will re-offend", and, on the other hand, "that there is a reasonable possibility of eventual control of that risk in the community". This statement is found in proposed section 753.1(1) of the bill.
As I have said, this is a new sentencing option. It will be interesting to see how the courts approach this new part of the code.
The third pillar of Bill C-55 is what we call a new judicial restraint order.It will be found in section 810.2 of the amended code. If you prefer, we can call this a restraining order or peace bond. The objective here, in terms of violent offending, is preventive. A restraining order, speaking generally, is simply an order of the court to an individual telling him or her to follow the same standards of conduct as everyone else in the community. In this case, the order is based on proof before a court that there are reasonable grounds to fear that an individual will commit a serious personal injury offence. The court can then impose the restraint order, with conditions, for a period of up to 12 months.
The conditions are fairly typical of other peace bonds in the Criminal Code. The court's powers are similar to the general conditions that are typical of peace bonds. That general clause is there in terms of conditions the court can impose, and a few specific types of conditions are highlighted in proposed section 810.2. The requirement as a condition that the person report regularly to the police or to a provincial correctional authority is specified in that section. I am sure you have noted that all references to electronic monitoring conditions have been deleted from the version of the bill you have.
We admit that the new restraint order is not a panacea. It does not impose incarceration on this target group, although breach of the conditions of the order does constitute a distinct offence in itself, an offence that is created by Bill C-55. The police have had good experiences with similar peace bonds elsewhere in the Code. I would refer you to section 810.1 of the Code, which is sometimes called the anti-pedophile restraining order. Rights of law-abiding individuals have not been abused.
Finally, I think it important to mention the low-risk offender aspects of Bill C-55. The government has stated publicly, including in the last Speech from the Throne, that priority should be given to assigning correctional resources to offenders who are the most dangerous, who commit crimes of violence, and who pose a serious risk to the public. By contrast, there is certainly merit in finding less costly approaches to those who present little risk to public safety.
Bill C-55 does not contain every so-called low risk offender initiative of the government, but it does contain one important one. It amends the Corrections and Conditional Release Act to allow for earlier day parole for a select group of federal offenders, namely non-violent, first-time federal offenders. This approach will move a number of federal inmates out of cells and into day parole programs earlier but only if they are first-time offenders and present little risk to the public.
I will stop at this point. Ms Trottier and I would be pleased to answer questions about any aspect of the bill, or we can move on, if it helps the discussion, to the Canadian Bar Association brief. A quick glance at this reveals that it is the same brief submitted to the standing committee in the other place. I was at the hearings where the Bar Association representatives appeared, and we are prepared to speak to it.
The Chair: Senator Corbin and Senator Jessiman have indicated that they have questions at this stage. When we finish with their questions and any other senators' questions, we will move into a point-by-point consideration of the Canadian Bar submission.
Senator Corbin: You have used the term "brutality" with respect to dangerous offenders. Are you talking about solely physical brutality? How would you characterize the sort of brutality to which you have alluded?
Mr. Whellams: When we use the term "brutality", we are most talking about horrendous crimes in a serious personal injury offence. The definition in the code as it sets the criteria and threshold for D.O. does not confine itself just to brutality. It talks about a pattern of serious, violent offending. It talks at some point about serious psychological harm as well.
The typical successful dangerous offender application will probably be an assault type of case, either aggravated assault or aggravated sexual assault. As I said, 92 per cent of successful applications involve sex offences. The majority of those would be aggravated sexual assault or sexual assault with a weapon. Just to highlight the seriousness of that offence, the code also indicates that aggravated sexual assault carries a maximum life sentence.
The majority of cases, yes, will involve physical violence, but serious psychological harm is included, and that is important when we are talking about offences against children. That would be factored in, yes.
Senator Corbin: I purposefully put the question because I had in mind psychological harm or damage which may not be easily recognized initially but could develop over the years into some quite damaging personal effects. Would that kind of incident of serious psychological damage over the years somehow be monitored? Can it become part of the culprit's record, or is that just not possible under current dispositions in the law or regulations?
Mr. Whellams: It certainly is possible. Let me suggest several factors which would become a reference point for the court and everyone else in a D.O. prosecution.
Typically, a sex offender, a pedophile, for example, has a track record which includes an horrendous number of previous incidents. It may not all be convictions, but there will be quite a few. I will not overstate the profile of a pedophile, but you are talking about offenders who start with touching and the like, where there is not heavy-duty brutality or physical violence, and then it escalates. This will come out in the hearing on dangerous offenders. Certainly previous offending, the track record, is available to the prosecution and the court. You will typically see a pattern of offending which may start at a low level but escalates both in terms of physical violence and psychological harm.
Another key factor you may want to explore is the assessment procedure which feeds into the existing D.O. hearing and the one that we propose here. We hope there is a fairly thorough assessment involving psychiatric examination, psychologists, and others. The profiling from a psychological or psychiatric point of view is important. We have said in the new bill that the assessment must form part of the evidence, so it will translate at the hearing into evidence. These are reference points where that psychiatric and psychological information will come out, including analysis of the effect on the victim himself or herself.
Senator Corbin: How much of a follow-up would come into the picture, given that psychological traumas may lie dormant for years and then, all of a sudden, pop up?
It seems to me that, as well-intentioned as the bill is, unless you have a mechanism to follow up on the victim's mental health, the facts will not necessarily go into the culprit's record.
Mr. Whellams: The victim's movement is still on the rise. Their demands for input into the process have been heard and are still strong.
Keep in mind that the dangerous offender process is a sentencing hearing. We have already had the trial. We hope that material has come out at the trial about psychological damage and the psychiatric profile of the offender. Keep in mind that the criterion here, as we have noted, is patterns of persistent aggressive behaviour and psychological damage. Pre-sentence reports, victim impact statements, and that kind of thing provide an additional opportunity for this information to come forward at the hearing. Without being able to guarantee good results, I think the mechanisms are perhaps better than they ever were. I would hope this would improve the assessment procedure as well.
Senator Jessiman: Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be informed without unreasonable delay of the specific offence.
Some experts on the subject say that this proposed legislation will run afoul of that section. What do you say to that?
Mr. Whellams: On the specific offence?
Senator Jessiman: My question refers to the six months. He has been charged, convicted, and sentenced. You then say, six months later, that you want to apply to give him a different sentence. Therefore, at the time of sentencing, it could be argued that there has been a breach of section 11 in that he has not been told within a reasonable time.
Mr. Whellams: There is a specific provision in that "window of opportunity" section requiring notice. The notice, as I am sure you are aware from reading the section, requires that this be done before the imposition of sentence. In other words, the man or woman is convicted of a serious personal injury offence. We are heading for a sentencing hearing. The Crown must give notice at that time that it will not pursue a dangerous offender application at this time or seek the remand for assessment, but it reserves the right to do so within six months.
Senator Jessiman: Then the Crown must prove, when the application is made, that the evidence was not actually available at the time of the first sentencing. There are the two things.
Mr. Whellams: There are more than two things. There are actually several things. This is likely to be a narrow option for the Crown. It is hemmed in by the fact that it must give notice at that time. We have covered that. It must be new information, not reasonably available at the time of trial, and it must be brought within six months. That is quite a limited time period.
Senator Jessiman: Let us deal with the new judicial restraint orders. They could be applied to people who have never been convicted of anything. They are concerned about those who have already paid their price to the community and spent time in jail. Now they are out. Those kinds of people have been convicted, but they have paid their price, for all intents and purposes. The section is wide enough that, even if someone has never been convicted of anything, if someone has fear and they think there is such a risk of future crime, you could apply for this kind of order.
The peace bond has always been there, but it had to do, as a rule, with individuals or perhaps property, for instance, when a man and wife separate and agree among themselves that they will stay apart from each other and that one will not ever go on one property and the other will not go on another property. That is what the peace bond is. This has extended it substantially. Will that withstand attack as well?
Mr. Whellams: You raise an important question, and I will be frank about the difficulties in drafting this provision. I will be very frank because I feel confident about that because Mr. Rock was frank about the difficulties preparing this section.
One of your questions was why not confine this to someone who is convicted, who is a criminal. There is a problem there if he has already been convicted of a crime. This is perhaps a narrow issue, but it is the reason we drafted it rather generally.
If he has already been convicted of a crime and has finished his sentence and is on the street, you cannot say, just because he was previously convicted of an offence, that we will impose this measure on him. It is not punishment. Courts have said that peace bonds are not punishment. It is a Criminal Code order, a restriction on the person. There is a Charter problem with double punishment there.
We shifted the emphasis to the evidence. One safeguards here is that whoever complains, whoever brings the application forward, must prove in open court with evidence that the fear or apprehension that the person will commit a serious crime is reasonable on the basis of facts. We could expect reasonably that previous patterns of offending would be relevant, but they would not be the only factor.
Your question raises a drafting problem and a Charter problem. If you say only previous criminals should be targeted by this, you are handing an invitation to the courts to start considering intensively that you are going after him twice in a punitive way. We prefer the general wording with the safeguards that are put in here because it frames it overall as a preventive measure.
Mr. Rock, in announcing this, referred to the case of R. v. Boudreo, which is a different restraining order provision but it is 810.1. It is quite similar in its format. It has upheld the premise that the Criminal Code can use peace bonds for preventive purposes.
The second part of your question was whether we expect a Charter challenge. One would expect so. The case I mentioned is working its way forward in the courts, and I think this will be challenged as well.
Senator Jessiman: I have some other questions, but I will wait for the Canadian Bar Association presentation.
Senator Beaudoin: If you modify the legislation and give more power in respect of the indeterminate sentence, is there not a risk of going against section 12 of the Charter, cruel and unusual punishment? It depends on the case, but the mere fact that it is an indeterminate sentence poses a risk. Perhaps it is quite right. We do not have much jurisprudence on section 12. What is your reaction to that?
Mr. Whellams: There is some jurisprudence, but perhaps not fully exploring it.It certainly does not fully explore what we have done with this bill.
Senator Beaudoin: There is the Lyons case.
Mr. Whellams: The broad statement everyone likes to quote from Lyons is that the dangerous offender thing is a well-tailored scheme. It has safeguards. It has evidentiary requirements, and it is fairly well written in terms of the standards.
As you have stated, we have eliminated the possibility that the court can order a fixed or determinate sentence and must go for an indeterminate one. The Bar Association, in the first recommendation in their brief, deals with that question, so we might as well deal with it now.
In fact, a determinate sentence in dangerous offender cases has been quite rare. Perhaps half a dozen cases out of 186 have ordered a determinate sentence. The Lyons case said that, when you have an indeterminate sentence, you must be careful about everything from the standard you have for proving it to the later parole review, simply because it is indefinite. That parole review remains. You still have parole review of the indeterminate sentence. We have extended the first review from three to seven years, but it still happens every two years. We think we preserve that part of the guarantee of the individual's rights.
You mentioned cruel and unusual punishment. The Supreme Court of Canada in Lyons said that indeterminate punishment in the context of dangerous offender Part XXIV is not cruel and unusual and does not violate the rights in itself, but it all depends on the structure you create around it. We feel that because, in fact, dangerous offenders do not get out that quickly, a later parole review is possible.
Perhaps I am anticipating what the Bar Association will say tomorrow, but by requiring an indeterminate sentence, we have created another mandatory minimum sentence.It can be seen that way, but, the way we have structured this procedure, if the court feels that he can be rehabilitated, there are other options. One of the Supreme Court cases asks if he can be redeemed or rehabilitated in a fixed period of time. If that is the case, it is likely, it seems to me, that the court will not go for the dangerous offender finding. They will say that he is not incorrigible or indefinitely dangerous. They may go down to the long-term offender, which is new. Another option is to find that he is not a dangerous offender, that he is not a long-term offender, and to give him a regular sentence, as under the present law.
The answer is that there may be a slight Charter risk in terms of section 12, but we have kept most of the safeguards, or all of them, in terms of evidence and parole and a full hearing. In fact, very few will get out in a short period of time. An indeterminate sentence is what the dangerous offender law is all about.
Senator Beaudoin: We cannot escape the risk of a Charter challenge, of course. We have had 330 cases since 1984, if we start there with their first ruling, and that is a lot. This is only at the Supreme Court level.
You say that you have dealt with the equilibrium. Do you feel reasonably sure on this?
Mr. Whellams: I would hazard a guess that, if and when this went to the courts on a challenge on section 12, Lyons would be the big case. There may be others. I have explained my interpretation of Lyons, and what we have done here does not do violence to the concepts in Lyons.
The Chair: We can now turn to the summary of recommendations. You have dealt effectively with the first one. Perhaps we can deal with Recommendation No. 2, that Bill C-55 be amended to retain the current requirement that both Crown and defence can nominate a psychiatrist.
Mr. Whellams: I did not mention Recommendation No. 2 in my opening remarks. The present law requires two psychiatrists to testify at the dangerous offender hearing, one for each side. We have eliminated the mandatory requirement for two psychiatrists, although there is nothing to prevent the defence from making its full case and introducing evidence of all kinds at the dangerous offender hearing. I cannot imagine that the defence would be refused the opportunity to introduce its own psychiatric evidence.
You do not always design the laws according to experience, but the experience has been, however, and I think this is relevant, that in many parts of this country there is a shortage of forensic psychiatrists.
In dangerous offender hearings, the Crown and defence agree on the psychiatric testimony, in other words, who will testify. They do that for several reasons. One is the shortage, and another is the fact that there has already been an assessment done and the psychiatrists who are involved in that assessment would perhaps be the best ones to testify. This is not always the case. We have not prohibited the extra psychiatric report.
I note that the recommendation ends with the words, "unless both sides consent to having only one psychiatric report." In fact, that happens. I think we are covered on that one.
A federal/provincial task force studied these first two issues, the indeterminate sentence and the psychiatric testimony question, for several years. They included all provinces and territories. They made a strong recommendation in both areas that we move on this front.
One issue was how psychiatric testimony will come into the hearing. As I mentioned to Senator Corbin, the assessment report must be introduced into evidence, and that is most likely to be a psychiatric type of assessment. There will be several ways that psychiatric evidence will and can come into the hearing. If there is further comment, I would be happy to react to it.
The Chair: Recommendation No. 3, that the opportunity to commence a dangerous offender proceeding after a sentence is imposed be deleted from Bill C-55.
Mr. Whellams: I have the impression that the Bar Association does not like anything in the bill, but I will deal with it in a measured way, step-by-step way. I answered most of that with Senator Beaudoin. I do not want to get too prolonged on that one.
We hope the safeguards in terms of limiting the opportunity are there. I would expect it will not be used all that often. In rare cases, victims of other crimes come forward with new evidence.
The Chair: You have indicated that the Bar does not particularly like this bill. What do the provinces think of it?
Mr. Whellams: I mentioned a task force. This was a typical task force of bureaucrats, but it had the authorization of federal, provincial and territorial Ministers of Justice and Solicitors General to do this work. Indeed, it sent its report back to all these ministers in January of 1995. That report, at least all the areas we have been discussing, and I would say every area that was in the bill, was endorsed by the group of ministers responsible for Justice. There has been strong support of the entire bill, certainly in these areas.
The Chair: Let us move on to Recommendation No. 4 on the current three-year threshold for review of parole ineligibility for dangerous offenders. It is being changed from three to seven, and then two years after.
Mr. Whellams: That is right. Ms Trottier can help on this one because it is related to the role of the parole board and correctional services.
Senator Beaudoin: Is that the only change, from three to seven?
Mr. Whellams: In terms of parole for dangerous offenders, yes.
Senator Beaudoin: I am inclined to think that it is reasonable in the sense that they are dangerous and at risk. My first reaction is not against going from three to seven years.
Ms Jennifer Trottier, Senior Policy Analyst, Corrections Policy, Solicitor General of Canada: Very few are released at the three-year period, and few are even released at the seven-year mark.
Senator Jessiman: The problem is not so much the release as it is that they do not even consider giving them treatment, as I understood it, until three years. You have three years while they are in there, and you start looking at them near the end of the third year in order to give them some kind of treatment and to determine whether they might or might not be available for release. The argument on the other side is that you do not look at these people, and seven years pass before they are assisted or helped in any way. At that point, they may be irretrievable.
The Chair: If you go from three to seven years, and if they are not getting treatment now until almost the third-year period, will they now find themselves in a situation where they do not get treatment until near the seven-year period?
Ms Trottier: I do not think so.
Senator Jessiman: It is a matter of dollars and resources.
Ms Trottier: As soon as they get to a federal penitentiary, they go through an assessment procedure. It can take up to a year to go through the various assessments to determine what sort of treatments they require. Then, as for all other offenders, they are put on a waiting list for the programs they need.
I would not suggest that they are left out there with the attitude, "Well, who cares? You are not going to get out anyway."
The Chair: We have certainly had some evidence before this committee in the past along the lines that you know Person B will not get out until after Person A, so Person B remains on the waiting list. It causes me concern if someone can wait for seven years without any treatment.
Senator Jessiman, I see a recommendation coming from the committee on this.
Senator Jessiman: Yes.
Senator Beaudoin: When types of treatment would be available, and what does this mean in practice?
Mr. Whellams: As I have mentioned, the majority of these offenders are sex offenders, and by definition we are talking about serious offenders, usually with violence as well.
Senator Beaudoin: This is why they are dangerous.
Mr. Whellams: Of course. The perspective on treatment is necessarily long-term. As my colleague has said, the assessments are done very early after entry into the penitentiary system. I am not pretending to speak for Correctional Services Canada or the parole board, but I would guess they must develop a fairly long-term perspective on the treatment regime.
I am not prepared to describe the types of sex offender treatments, but I would hope it would be fairly intensive.
Senator Beaudoin: Are you referring to medical treatment or psychological treatment? Treatment could start the first day they are in prison.
Ms Trottier: They try to ensure that all offenders get the treatment that they are assessed as needing at the most appropriate time in their sentence. If they are coming up for a seven-year parole review, it makes sense that, not too early on, they would give that sex offender whatever treatment program they may require at year two. It might be better to do it at year four to ensure that it is still relevant by the time they come up for their parole review.
Senator Jessiman: The Canadian Bar Association quotes R. v Yanoshewski as follows:
... the dangerous offenders with indeterminate sentences are given low priority for treatment because they are seen in the system to be long term prisoners.
Senator Pearson: On the same subject, would it be acceptable for a dangerous sexual offender to obtain private treatment?
Ms Trottier: I cannot answer that.
Senator Pearson: When you refer to treatment that it is relevant for the time, I take that to mean aversive treatments and that type of thing. They are conditioning treatments. I do not think we are talking about long-term psychiatric care.
Ms Trottier: We are certainly talking about the psychiatric part of a treatment program. We are not necessarily talking about shifting them to a psychiatric ward, no.
Senator Pearson: I am particularly interested in the case of Joseph Fredericks, partly because my daughter wrote a story about that for Saturday Night. This man's life history predisposed him to what happened. Probably the only way he could have been successfully treated would have been long-term psychiatric treatment of the verbal type, as well as something else. That was, as far as I know, never done. Undoing childhood trauma, as we know, is a long process.
As a matter of interest, and not particularly relevant to this bill, if some one recognized that they have a huge problem - obviously they do, because they are in prison for it - and wanted psychiatric help, would it be possible for them to get it?
Ms Trottier: Would it be possible to get it privately? I am not sure. I can follow that up.
Senator Pearson: I would be interested. I am fascinated.
Senator Corbin: You said earlier that there is a shortage of forensic psychiatrists. You have the maximum security establishment on the Miramichi, out in the woods in the middle of nowhere. Do you have resident psychiatrists? What do you do in a situation like that? How is the person serviced, if I may use that expression?
Mr. Whellams: Are you talking about the psychiatric input to this assessment?
Senator Corbin: Yes.
Mr. Whellams: It varies across the country. Bigger provinces tend to have broader resources in various centres. Over a period of time, they get in the habit of using certain psychiatric institutions such as Pinel in Quebec.
Senator Corbin: This type of offender would not necessarily end up at the institution in the Miramichi?
Mr. Whellams: It is possible. Under the remand procedure, that person as an offender in custody could be transferred to the assessment centre.
Senator Corbin: I used the example of Miramichi, but it is actually Renous.
Mr. Whellams: There must be a degree of impartiality and objectivity at this point in the proceedings. We are not talking about some one who is already sentenced and in prison, receiving treatment as an inmate.
Provinces have a great deal to say about the structuring of the assessment institution and the assessment procedure. The court does as well. The defence may object if it was run out of a federal institution that eventually could inherit this prisoner.
If you are referring to post-sentence, yes, there are psychiatric centres in all of the regions of Correctional Services Canada. I am not that familiar with Renous and the Miramichi area, but the one in Saskatoon is terrific. The Regional Psychiatric Centre does terrific work. I do not know if that answers your question.
Senator Corbin: What about New Brunswick?
Mr. Whellams: I do not work in the correctional system itself, so I am not sure about Renous.
The Chair: Let us move on to the Bar's Recommendation No. 5.
Mr. Whellams: Recommendation No. 5, as I read it, wants to avoid the entire long-term offender procedure and replace it with extended probation opportunities.
There are two sides to this. It is interesting that the Bar Association and some others who have commented on C-55 have viewed long-term offender as a type of federal probation simply because you can add ten years of supervision. Frankly, we did not think of it as opening the door to a broader use of probation. Probation as it stands now is essentially added to provincial time. We did not see this as opening the door to that because we created a specialized procedure for a long-term offender finding. We could have taken a different route. We could have said, "Let's take the sex offender categories, serious sex offenders, and allow the court to add five or ten years of probation." The Bar recommendation is to add five years to all of those sentences automatically.
I will be fairly critical of this recommendation. They criticize us elsewhere by saying we are widening the net and toughening up the law to get in more offenders, not to throw away the key but to lengthen their sentences. If we add probation at a federal level, we would expect probation would not be supervised by provincial people. If it was supervised by the parole board or Correctional Services Canada, that would certainly widen the net in terms of costs.
Senator Gigantès: What do you mean by "widen the net in terms of costs"?
Mr. Whellams: At the moment, probation is strictly run in provincial systems under provincial administration. Allowing federal probation and administering five years or more of probation at the federal level would increase the costs because more and more ordinary convictions would result in a sentence of incarceration plus, say, five years probation. It widens the net in the sense you get many cases with five years probation, whereas what we have now is, hopefully, an appropriate long sentence of incarceration with parole eligibility built into it.
It is a philosophical question which I am not sure I am prepared to debate here, but it is also a question of whether we should replace long-term offender with automatically available probation orders. That certainly, as I said, was not our intention.
The long-term offender thing, in my view, is better than simply adding five years of probation because it forces a special assessment and a special procedure. It forces the court to think about the structure of the sentence with a combination of intensive supervision and a sentence of incarceration.
The Chair: I am obviously missing something here. Who would provide this supervision if not the probation system?
Mr. Whellams: Let me be clear. Long-term offender is entirely federal. Only that select group falls into that special designation.
What the Bar is talking about here, although it is not explicit, is being able to add up to five years of probation to any of these serious sentences, not just the long-term offender categories. It is not clear whether probation is to be run federally or provincially. We would engage in discussions with the provinces if this came about. This implies to me, or perhaps I am inferring it, that it would be federal.
The Chair: That is what the Bar is suggesting. What are you suggesting?
Mr. Whellams: We are suggesting not to go this route, first of all.
The Chair: Exactly. Then you would have a ten-year supervision period. That would take place after there has been a special assessment, I assume, to try to evaluate what kind of supervision that particular individual requires. We would then have costs that we have never had before in our system of corrections for these long-term offenders.
Are you particularly focusing on the pedophile? We could get into a discussion of whether pedophiles are treatable or non-treatable. We do know that many of them are choosing to serve their entire sentence because they then do not have to report to any one. If they go on probation, they are under supervision for a period of time; if they serve their whole sentence, they are out of jail and no one sees them again.
Senator Gigantès: Until they commit another crime.
The Chair: Until they commit another crime, as Senator Gigantès has added. This tries to ensure that people receive some form of supervision, based on their needs.
Mr. Whellams: That is quite accurate.
I would add that this long-term supervision order, which is the ten years of supervision, only begins after the sentence of incarceration is fully completed. It does not work for the guy who wants to sit in his cell and not even apply for parole and get out cold at the end of sentence in the sense that he is still subject to the supervision after his full prison sentence.
The example would be a hypothetical one. He gets eight years for sexual assault and serves his eight years one way or another. Only then does he get the supervision period which, say, is another eight years. This extends the control over him, but it does not increase the period of time in the cell. It simply adds it to the end.
We anticipate that the cost of long-term supervision under this long-term offender order would be higher than your average parole cost per offender. I hesitate to be precise, but I think the average parole unit yearly cost is about $9,000. You could double that for this. The supervision structure, we hope, would be more intensive because we are talking about fairly dangerous people. Many sex offenders need long-term, intensive controls, which would involve a cost factor.
It is difficult to speculate how many cases we will have under this. It is a brand new procedure.
Senator Jessiman: Many of these offences are up to a certain amount, and you find that may be ten years. Are the judges giving a year, or are they giving two years? What are you assuming in your costing? Are you assuming that it will be three years, four years, or five years?
Mr. Whellams: We assumed an average of six to eight years, along that line, but it is speculative on our part as well. We do not know. If the offender is doing well, it provides that he can petition the court for a reduction of that period.
The other cost factor, senator, is speculative, because you do not know how many there will be. We have roughly 500 or so new sex offenders in this category coming into the system annually. If you take only 10 per cent of that, you have 50 a year. If you take 20 per cent, you have 100. You can do the math. I will only say, of all the areas that cost money, this will be the one that costs some money for Correctional Services Canada and the parole board to supervise.
The Chair: My understanding is that some of these offenders, willing to serve their full time, refuse treatment in prison. Is there any provision in this mandatory supervision period which would force them to receive treatment?
Senator Jessiman: They can order that the offender be supervised for a period not exceeding ten years.
Ms Trottier: The parole board can set conditions to that long-term supervision order. Those conditions could include that you must attend counselling and you must attend some sex offender relapse prevention or treatment.
Failing to meet those conditions is another offence. The offender could be charged with a breach of the long-term offender order, which is now a new Criminal Code offence, and would be subject to another incarceration.
Senator Beaudoin: I cannot see how it could be under the provincial jurisdiction. If we are talking about people who receive a sentence of seven years, it is federal. Prisons are provincial, but penitentiaries are federal. It is right in the Constitution. Mind you, I do not understand why they have separated that, but there must be a reason. Everything over two years is federal.
Mr. Whellams: Actually, the two year provision is a constitutional convention that is about as well-entrenched as any other convention, perhaps even more so. I was not careful enough to distinguish between the law and a negotiating position here.
Logic would tell us that it would be federal. From the beginning, it would be called "federal probation". It would be five years, and we would be adding it to sentences that would normally be served in the penitentiary.
Senator Beaudoin: When you consider that administration of justice is provincial, then it could come under 92.14, but there is a distinction between the two in the constitution itself.
Mr. Whellams: You are quite right, and I am not objecting to anything you say. The administration of sentence can be distinguished from the administration of justice as well.
Senator Beaudoin: We will study that in due time.
Senator Gigantès: You seem to be talking about the next federal-provincial problem between Ottawa and Quebec. They will want sole jurisdiction over sex offenders.
Senator Jessiman: We might let them have it.
Senator Gigantès: You used the phrase, "if they are doing well". What does that mean, and how can we be sure? They might be dissembling.
Mr. Whellams: There are many ways of looking at that. This is a court proceeding. We do not give the power to the parole board to terminate this period of supervision. They might relax the conditions within the discretion of the parole board, but they cannot shorten the sentence. You do have to go to court and prove your case as the offender. The Crown, the Attorney General of the province which prosecuted the case, and the parole board itself will have a chance to testify in an adversarial procedure.
The standard is a more difficult question. Generally, over a period of time, the risk factors and the risk assessment would become evident in terms of some one who has probably served a fairly long sentence in penitentiary and is probably well into his supervision period. You should be able to assess his risk fairly thoroughly at that point.
Again, it is a new procedure. We are not sure what will happen.
Senator Gigantès: How many instances do we have of dangerous sex offenders who were released eventually and benefited from the perception that they were doing well, and yet, when they were out, they committed another offence?
Mr. Whellams: If you are talking about the dangerous offenders, ironically, very few have been released over the years. There is not a huge sample within which to consider recidivism. I do not think, of those who have either received day patrol or full parole, there has been much repeat offending.
The question of sex offenders is a tough one. I do not know what the recidivism rates are.
Ms Trottier: I have experience with one dangerous sex offender who was paroled by exception. This is more the case of when that reduction of the long-term supervision order would come into play. This particular dangerous sexual offender was terminally ill. He was coming out and going into a nursing home where he would probably spend the next several months, because he was quite ill.
In those sorts of circumstances, you would see someone applying to have their long-term supervision order reduced. There could be circumstances where, under a ten-year supervision order, for the last eight years they have been doing extremely well, and they have that right to apply. It would be before the courts. It would not be up to the National Parole Board to decide.
Senator Gigantès: That was not my question. My question was, among those sex offenders released, not because they are dying within a few weeks, what is the percentage of recidivism?
Ms Trottier: Numerous follow-up studies have been done on sex offenders. For those sex offenders who have received some sort of treatment both inside prison and in the community, it appears that the recidivism rate to re-offend in a sexual manner is anywhere between 8 and 15 per cent. Untreated sex offenders have a recidivism rate ranging anywhere from 22 to 38 per cent. That is very broad.
If you break that down into certain types of sex offenders, it changes dramatically. The incest offender has a very low rate of recidivism, whereas male pedophiles, child sex offenders, have a higher rate of recidivism than any other type of sex offender.
Senator Milne: Mr. Whellams, as a representative of the Department of Justice, when you say that this is a new procedure and you are not sure just exactly what will happen, I become quite concerned. This is quite a long way through the legislative process at this point. Surely the department has some idea, if this bill passes, how it will deal with this.
It must know whether it will turn this over to the provincial authorities. If this costs a great deal of money, and you seem to think it will, will they turn these long-term offenders over to provincial authorities for supervision or will they do it themselves? There must be some plans underway.
Mr. Whellams: Yes. I will try to clarify my earlier points. I only meant that we do not know how it will be used in terms of numbers. We are confident that the long-term offender thing, as a new kind of sentencing procedure, will be there in a kind of strategic way. We hope it is useful to prosecutions. Right now, dangerous offenders average, successful prosecutions, 10 to 15 a year. There have been 186 or so over 20 years. There is every reason to think that "long-term offender", which sets a slightly lower standard of proof, a lower level of brutality, et cetera, will be even more flexible than "dangerous offender" and will invite use by prosecutors and sentencing by courts.
I did not mean to say that it is wide open. It creates a new tool that we are confident will be useful.
Senator Milne: Does it create a federal tool or a provincial tool?
Mr. Whellams: The provinces, with the responsibility for administration of justice, prosecute cases, so the initiation of those cases is up to prosecutors who are almost entirely provincial.
Senator Milne: I am talking about after.
Mr. Whellams: Afterwards, yes. It is all federal. Let me clarify. The supervision is all federal on the long-term offender.
Senator Milne: This is something new, so we are, in effect, setting up a new branch of your department.
Mr. Whellams: It will be up to Correctional Services Canada, the parole board, to do the supervision. It would involve the type of skill sets which are used in parole. I have indicated that we hope the design process which is ongoing now within correctional services and the parole board will arrive at something which is more customized to this client or target group.
There are models of intensive supervision probation in the United States which, as the name implies, require intensive kinds of counselling, some treatment, reporting, this kind of thing. It is new in that sense, but parole board and CSC are working on it.
If the person is out on long-term supervision and commits a new offence, no matter what that offence is, even if it is a minor one, he serves that offence in the federal system. Federal supervision cannot be avoided. If he commits shoplifting in order to terminate the long-term supervision, he comes back into the federal system. He is still subject to it. I hope that partly answers your question.
Senator Milne: That is an interesting point.
Senator Corbin: In clause 4, at page 7, you refer to 3(b), "order the offender to be supervised in the community". That does not mean that the offender must remain in the community. He is still free to move around the country, is he not?
Ms Trottier: Actually, no, at least not with the authority of Correctional Services Canada and the National Parole Board. General standard conditions to his release require him to report directly to the parole officer and to reside within a certain area.
If he did want to move, more assessments would be performed, including the community to which he is moving and why he is moving, and they would transfer the case to a parole officer to the community into which he is moving.
Senator Corbin: Do you use the term "in the community" deliberately instead of "place of residence", that is, in the sense that you have described, to meet certain conditions?
Ms Trottier: That is right.
Mr. Whellams: We commonly use the terms "community supervision" or "community-based supervision", so it does not mean in his residence.
The Chair: Let us move on to the final recommendation of the Canadian Bar, that proposed section 810.2 not be enacted.
Mr. Whellams: Senator Carstairs, I am glad you did not ask me about Recommendation 5(B).
The Chair: I now ask you about 5(B).
Mr. Whellams: You will not get a good answer on this one. We do not fund probation right now, and I do not know whether we want to innovate in that direction. Mental health is a tough issue, and it opens up a big area in terms of treatment. We have touched on the need for treatment.
As far as federal spending on mental health for inmates, Correctional Services Canada has greatly increased its assessment mechanisms, its treatment beds, its treatment programs, and its spending. I do not have the numbers, but that would be part of my defence for what is going on now.
The Chair: May I stop you for a moment? I am becoming confused between Senator Beaudoin's question and your answer and now this answer.
Who funds probation for a federal offender? Someone has a sentence for more than two years, so he is in a penitentiary. He serves his term. He goes on probation. Who pays those costs?
Mr. Whellams: It is provincial.
The Chair: That is where my confusion arose.
Mr. Whellams: However, the idea here is to make it federal.
Senator Beaudoin: Excuse me, over two years is not provincial.
The Chair: It is all provincial for probation.
Senator Beaudoin: Do you mean that a man who is in jail for all his life for murder is under provincial authority?
Mr. Whellams: No. That is parole. I want to be clear. You would get probation, essentially, for a provincial level sentence. They are proposing adding it to sentences of over two years.
It is a bit of a circular point, Senator Carstairs. Probation is essentially, by definition, added to the sentences of people who are serving provincial time.
The Chair: Let us be clear on vocabulary here. Probation is given to those who serve less than two years. Parole is given to those who serve more than two years. Probation costs are provincial. Parole costs are federal.
Mr. Whellams: Thank you. For the long-term offender, we do not call that probation or parole; we call that a long-term supervision order.
Senator Beaudoin: At least we can settle that.
Senator Jessiman: That will be federal.
Ms Trottier: That will be federal. A conscious decision was made to keep these high-risk sex offenders under one jurisdiction so that we do not have a Joseph Fredericks case, where they fall between the cracks and there is a question of who is looking after whom. That is why these are federal. Should they, once they are released, as Mr. Whellams said, commit some minor shoplifting crime, they remain federal, so there is absolutely no possibility that they get lost in the systems.
The Chair: Is it possible that they meant to use the word "parole" here and instead used the word "probation"?
Mr. Whellams: I do not think so. We are ranging a bit widely here, senator, because other schools of thought would like to see federal probation in a general way. If we have invited that kind of submission, mea culpa, because we created a structured long-term offender thing which superficially, I would say, looks like it adds ten years probation. We call it intensive supervision only after a special hearing.
The Chair: Thank you. Please proceed to Recommendation No. 6.
Mr. Whellams: Senator Jessiman had already asked, in reference to 6(A), why we went general rather than specific. I do not know if you want to probe any further on that.
The next logical question is who is likely to be targeted with a peace bond or a restraint order. The fact is that previous offending is perhaps the best predictor of future offending, so you will get a certain number of people who are no longer serving a sentence but who are targeted here. Of course, a corollary to that is, if they commit a new offence, they will be charged with an offence. We will not bother with a restraining order.
As to 6(B), I believe this brief was submitted to the house committee when the bracelet concept was still in it. Bending in the wind, we eliminated all explicit references to electronic monitoring.
As perhaps a more general point about the notion of "necessary and reasonable", I think what the Bar wants to say there is that they want those two words in the bill.
We do not feel that is necessary because we have framed the phrasing of 810.2 to be similar to 810.1. We have used the general concept. As Senator Jessiman indicated, there are many kinds of peace bonds. They all contain some generalized wording to give broad discretion to the court as to what is necessary. I would defend the current wording.
Proposed subsection 810.2(6), which is on page 13 of the bill, requires the court to consider, but not order, whether to include conditions that the defendant report to a correctional authority of a province or to an appropriate police authority. Add that to the standard kind of firearms prohibition, and you have the three specific types of conditions that we wanted to heighten here. Otherwise, the general wording "comply with any other reasonable conditions" does the job for me.
The Bar may have its specific legal reasons for arguing for that wording. I have not referred lately to the main text, but they may be concerned that courts enter into a rote sort of standard list of conditions. That is not necessarily a bad thing if it includes maintaining a residence and that type of thing.
Senator Jessiman: I read somewhere that, in British Columbia, they did or do have some form of bracelets which they use for people out on some basis, whether it be probation or whatever.
Mr. Whellams: You are quite right. It is probation or an alternative to serving your sentence.
Senator Jessiman: Is it only British Columbia that has it?
Mr. Whellams: No, quite a few provinces have it. This is gaining in popularity rather than declining.
Senator Jessiman: As the technology gets better.
Mr. Whellams: I think that is it. I think there may have been a brief submitted to the house committee from the B.C. officials who run that program. They were singing the praises of it, both in terms of being economical and in terms of low rates of offending while on the bracelet. It is a difficult area because it is evolving, as you say, because of technology, and cost is always an issue.
British Columbia has something like 400 offenders at any one time serving their sentence with electronic monitoring.
Senator Jessiman: Did you say that other provinces are doing that as well?
Mr. Whellams: Yes. I think Ontario has been developing one. Newfoundland, Saskatchewan, and B.C. are probably the most advanced. Other provinces are keenly interested.I think New Brunswick, as well.
Senator Milne: Looking at page 33 of the Bar submission to us, if we accepted all six of these recommendations, would there be anything left of this bill whatsoever?
Mr. Whellams: No.
The Chair: They do not like the bill, Senator Milne. What can we say?
We have asked the Bar to attend tomorrow morning. If you both are available, we may have some supplementary questions following that. It is my intention at that point to go into clause-by-clause following that, if senators feel comfortable at that particular moment in time. There may be some questions of you. If you could be here tomorrow morning, that would be appreciated.
Senator Jessiman: At the hearing before the House of Commons, one of the members of the House asked the Bar, "Would it be fair to say, after looking at your summary of recommendations, that you feel BC-55 should be discarded?" The response was, "Yes."
The committee adjourned.