Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence, October 1, 2009
OTTAWA, Thursday, October 1, 2009
The Standing Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to consider Bill C-25, an Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody)
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome to the Senate Standing Committee on Legal and Constitutional Affairs. We continue our study of Bill C-25, an Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).
[English]
We have Mr. Dave Chomiak, Minister of Justice and Attorney General for Manitoba and Ms. Alison Redford, Minister of Justice and Attorney General for Alberta. Thank you ministers for being here.
I should explain for the record, that we — as I am sure you will agree is only proper — have invited all the provincial and territorial ministers to appear or make submissions on this bill. We are delighted that these two ministers are here in person. We have also received submissions from British Columbia, the Yukon, Nova Scotia and New Brunswick. Nunavut has declined to appear or make a submission. That is for the record so that everyone realizes we are not playing favourites among provinces. We count ourselves lucky to have you here.
Ms. Redford, please proceed.
Hon. Alison Redford, Minister of Justice and Attorney General, Alberta: Thank you for allowing us to appear today. We are pleased to be here to discuss Bill C-25. My colleague, the Honourable Dave Chomiak, Minister of Justice and Attorney General for Manitoba, along with all western Attorneys General and Solicitors General stand strongly in support of this reform.
Two weeks ago we met in Saskatoon. We identified the need to pass this important legislation as quickly as possible. It was at the top of our agenda. Eliminating the current practice of courts granting two-for-one or even, in some cases, three-for-one credit for pretrial custody has been a matter of longstanding concern to all ministers of justice.
Our justice system must be fair and accountable. This principle protects us all. We also believe that we must send a message about the consequences when laws are broken and people are victimized. In Alberta, our government has made a commitment to ensuring that we build strong and safe communities. We have learned that one of the things that makes people feel safe in their communities is understanding and having confidence in the justice system. We believe that this legislation assists in that plan.
We believe that everyone must be treated equally under the law. The system must also be responsive to society as a whole. As legislators, we have an obligation to represent the community we serve.
The Criminal Code does not set out a formula of calculating the amount of pretrial credit that should be imposed by a sentencing judge. The prevailing practice has been to give credit for twice the amount of time spent in pretrial detention. We have also seen cases where offenders' sentences have been reduced by more than that. In Calgary, my hometown, I recall the case of a convicted heroin dealer who was granted triple credit, which left him with less than a year to spend in prison once he was sentenced to seven years. Examples of this can be seen across the country, including quadruple credit being granted. This is not acceptable. It does not instil confidence in the administration of justice in this country.
The amendments in Bill C-25 will effectively limit credit for time served to one-for-one. However, it will allow for some judicial discretion. Credit may be granted on a 1.5-for-one basis. If the offender has been denied bail because of breaching his or her conditions, credit must be limited to one-to-one. We believe that is very important.
Let us be clear, every person has a right to a bail hearing. However, once a judge has determined that a person should not be released, we need to remember why that person is being held in remand: A judge has either decided that the accused cannot abide by possible conditions for release or the accused is a threat to the community or, as we have seen increasingly across this country, because the accused chooses to be remanded to take full advantage of a potential two-for-one credit.
Every time this third scenario exists, it puts the system in disrepute. We know of many instances where individuals who intend to plead guilty intentionally choose to remain in remand custody as long as possible to maximize the credit that they will ultimately receive. We see the results of that on the news every day.
When offenders play the system in this manner, it only clogs up the system. It clogs up our remand facilities and increases lead times to trial. It reduces the time available to provide post-sentencing programs, which we believe is critical in building safe communities and rehabilitating people that need help. People need to have programs, and once offenders are serving their sentences, programming must be available.
If we do not do this, then this ongoing cycle will perpetuate escalating remand populations, and it contributes to the worsening of remand conditions. The cycle needs to end.
We must protect the integrity of the sentencing process and, in turn, maintain confidence in the justice system. When an offender is granted considerable pretrial credit, the seriousness of the offence may also be diminished. Sentences reduced by double or triple time, which is what happens now — and that is what the public understands happens now — are not true reflections of the damage inflicted on victims and the community. We believe that that must be a consideration in the administration of justice. Victims should feel confidence in the justice system instead of feeling frustration.
We expect much from our judges; judges know that. In Alberta, we have many opportunities to sit in public discussion with judges. I have sat on panels with judges. They have told me they are open and willing to accept whatever legislation is passed. Their job is to interpret the legislation; our job, and our responsibility, is to pass legislation. When we fulfill our responsibility within the justice system and judges fulfill theirs, we are able to have a public policy dialogue that provides the best results and the best justice system for Canadians.
Judges are not only able to work within the laws that we give them but also prepared to discuss this with us in appropriate forums, which is to pass legislation and allow them then to interpret that legislation.
Spelling out the limits on pretrial credit in Criminal Code legislation gives judges clearer direction during the sentencing process. A significant body of recent case law shows that credit for time served has been limited to the range available in the bill, which is one-for-one to1.5-for-one. However, that is not uniform across the country. We believe that in order for people in this country and in every province to have confidence in the justice system, there must be consistency. They must be able to rely on legislation that is applicable across the land.
A general cap of one-for-one credit for time served gives guidance for judges. It prevents double, triple or quadruple time credit sentence reduction. It still remains sensitive to the circumstances of the offender by leaving the door open to credit a maximum of 1.5-for-one.
Bill C-25 is an initiative to address longstanding concerns of federal-provincial-territorial ministers responsible for justice. Granting excessive credit for pretrial custody only distorts the transparency and integrity of the sentencing system. Again, I emphasize that it undermines confidence in the justice system by the general public. It contributes to remand overcrowding by serving as an incentive for offenders to remain in remand to try to reduce their sentences.
My colleagues and I firmly believe that the sentence a person receives is the sentence they should serve. It is what the public understands. It is how the system should work.
Sentencing guidelines laid out in the Criminal Code take into account the severity of a crime and accommodate rehabilitative programs, which we believe are key to the justice system. The credit-for-time-served practice has become problematic. Abolishing this practice will make our system more accountable. It will help our justice system better meet public expectations. It will ensure that our justice system works in the way that it should. Remand was meant to hold people until they were found guilty and able to serve their sentences and receive the programming that they identified for themselves or that the court identified for them.
I encourage the committee to review the proposed legislation in a prompt and an effective manner, as is your custom. I believe, as I said earlier, that the only way that we will get the right policy outcome on these sorts of issues is to ensure that we have a vibrant and dynamic public dialogue between the legislators and the courts. This legislation is an opportunity for that to happen.
Western Attorneys General and Solicitors General strongly support Bill C-25 and urge the federal government, members of Parliament and members of the Senate to ensure that it is passed and implemented as quickly as possible.
The Chair: Thank you very much, Ms. Redford. Mr. Chomiak?
[Translation]
Hon. Dave Chomiak, Minister of Justice and Attorney General, Manitoba: I am very pleased to be here along with my colleague and friend, Alison Redford.
[English]
I will take a different approach to the comments of my colleague because I agree 100 per cent with what my colleague said. When we met two weeks ago, we represented virtually every political party in Western Canada: the Liberal Party, the Conservative Party, the Saskatchewan Party, and I, from the New Democratic Party. We were at one in our consensus on the importance of this amendment.
A sense of concern exists in Canada about the validity of our criminal justice system. To the average person on the street, the logic or the illogic of the two-for-one remand is a factor. The standard reasons and rationale that I have in my prepared text about the majority of sentenced prisoners now being in remand, the actual conditions in remand versus what conditions in remand were at one time, indicate that if there was a logical reason or there was at one time for the two-for-one remand, it is no longer present. We do many different actions in Alberta, Manitoba and Saskatchewan. For example, we have drug courts, mental health courts and diversionary programs in order to deal with conditions of prisoners.
I practise criminal law. I practised criminal law at a time when our remand centre was of the old style. The new remand centre that we have in Manitoba, which was built 10 years ago, is actually 80 years more current than our major correctional facility. We have 70 per cent of prisoners on remand in the province. When I practiced criminal law, I was told directly by my clients that they wanted to do the two-for-one remand in order to maximize their situations. The other factor is the organized-crime element. When I did criminal law 20 years ago and went into a remand centre, virtually no organization existed. Now, our remand centres and all of our centres are organized and have to be isolated because of organized crime.
My point is that conditions have changed. To the public, the concept that someone could do two-for-one time just does not make sense. In Western Canada, we all recognize that valid social conditions and concerns exist in our prison system. Some issues are clearly Aboriginal issues. In Manitoba, the vast majority of our prisoners are First Nations. There are issues of women. We are building a state-of-the-art women's correctional facility for both remand and sentenced offenders that will be state of the art in the world, with gardens and family centres. Alberta has put in place a $200-million program for community safety. We have put in place measures to ensure that many individuals who would normally come into the criminal justice system do not necessarily have to come into the criminal justice system. Although I suspect that in some cases the remand centre is still somewhat harsher than regular custody, programs are available in most remand centres, also with access to them in most remand centres.
My first federal-provincial-territorial meeting was in 2006. It was passed by all ministers at that time, from all jurisdictions and from all political parties. They were in favour of reform of this section of the Criminal Code. That was three years ago. We urge you to recognize the validity of the position and the fact that we are as one as Ministers of Justice and as Solicitors General. We recognize the issues of concern that may be raised with respect to the individual rights of individuals that this may impact. We are trying to deal with them in another fashion.
We have a long way to go in that regard, but the concept of two-for-one remands to the average person in the Winnipeg, Manitoba, confounds them completely and does not help any of us in our attempts. We have had long discussions and talks, as ministers, in meetings to ensure that the public has confidence in the integrity of the system. This measure will go a small way in restoring the logic and the consistency of what is necessary in the criminal justice system.
Senator Baker: I would like to welcome the witnesses here today. The minister from Alberta is not new to Ottawa and to Parliament Hill. She has a long history of being in positions of authority with the governments of the day, going back many years. I also wish to welcome the minister from Manitoba. Thank you for your excellent presentations.
Having said that, let me clarify with you a very important point. You say that all of the Ministers of Justice agree with these amendments to the Criminal Code, and you reference previous submissions that you have made to the federal government about this as a group.
Could you verify to this committee that you did not suggest one-for-one time but that you suggested 1.5-for-one?
Mr. Chomiak: Yes, I recall specifically the meeting in Newfoundland at that time. It was an overwhelmingly beautiful site.
Senator Baker: Yes.
Mr. Chomiak: We had discussed that, but it had been my understanding that subsequent to that the first ministers had agreed to a variation. In the Western ministers' meeting that we attended two weeks ago, we confirmed that ratio.
I believe you are correct in making that determination. I was part of those discussions. I suggest that the amendment before you today is reflective of that insofar as discretion is still provided. The principle enunciated is very much a reflection of the discussion that occurred at that ministerial meeting. I believe, although I cannot be certain, that the first ministers confirmed what is in the amendment today.
Even if I am not correct in that assumption, I can assure you that, during the debate and the discourse in the Newfoundland meeting, I believe that we had settled on a number similar to what is in the present amendment; then it varied. I cannot totally recall the rationale for that. However, the principle of one-for-one and the principle of having the ability for discretion on the 1.5-for-one is clearly reflected in this amendment.
Senator Baker: I recall your meeting in Newfoundland.
Ms. Redford: I wanted to refer to what I think the rationale was, although I was not at the meeting in Newfoundland. When I became minister, I asked for an explanation as to why there would be this discrepancy between one-for-one and 1.5-for-one. The general public hearing this conversation now are thinking that these people cannot make up their minds.
The very clear idea was that the basic fundamental principle would be a one-for-one credit. However, we did want to ensure some built-in incentive for people held in remand to cooperate, access programs and begin to do the work that would help them improve their life at the other end of whatever experience they were in. If we only had one-for-one and nothing else, we would not allow for that principle to be part of the system.
Senator Baker: However, witnesses, it is important for us to establish exactly what the provinces had asked for, what they had recommended and that you do agree with this amendment because it is approximately correct. The witnesses are correct that it approximates what you asked for; there is no doubt about that. However, the distinction is still there: 1.5-for-one versus one-for-one as a maximum.
We looked at the case law for your provinces. The Court of Appeal sets your case law. I will read one sentence of the headnote from a case in the Manitoba Court of Appeal called R. v. Young, 2004:
. . . credit of one and one-half for one is an appropriate and useful guideline for the sentencing judge in circumstances where . . . the harshness of pre-sentence custody is not a factor.
When I go up to today's case law of a month ago, in R. v. Semple, of the Manitoba Provincial Court, to check whether they are following that actual guideline, at paragraph 38, I see that they are following that guideline. At paragraph 38, the judge says:
I am not satisfied that his participation in those sessions should result in reducing the credit for his pre-trial custody to 1:1, as such an approach could have the effect of discouraging offenders from participating in the very counseling they require to eventually lead to a crime-free existence. . . . I am satisfied that he should be given credit for the time in custody at the rate of 1.5 to 1. . . .
That is from Manitoba.
When I go to Alberta, I see the same thing. Your Alberta courts this year do not go with two-for-one. As their example, let us take the R. v. Bird case from about a year ago and then proceed to a month ago. In the R. v. Bird decision it says:
I have determined that one to one credit is appropriate, given the circumstances and rehabilitative opportunities. . . .
I now move to a case about a month ago — I will cut it very short, Madam Chair. The point being that, at various moments in time — and the same applies to Saskatchewan — we find remand time treated as one-for-one, less than one-for-one, 1.5-for-one and two-for-one. It varies on the circumstances of the person who is on remand and who is being sentenced.
Your original suggestion of 1.5-for-one is in agreement with what your courts are saying. However, your one-for-one does not agree with what your courts are saying.
Mr. Chomiak: With all due respect, senator, I believe it is common practice in Manitoba to use a two-for-one credit for remand as a general course of action. If the courts are looking for direction or discretion, under this amendment, they would have it. However, it is my experience and my advice from my officials, that a standard course for credit is two-for-one in Manitoba.
Senator Baker: You are not answering the question, though. A difference exists between what you suggested to the federal government from the Newfoundland conference in 2006-07, which I remember very well, and now what you are agreeing to in this legislation.
Mr. Chomiak: A number of intervening factors have occurred, as I recall. Several instances occurred where courts gave three-for-one remand, in Alberta in particular. As I recall in discussions with our first ministers, they seemed to be of the opinion that 1.5-for-one would make more sense than two-for-one.
The discussion ranged from 1.5-for-one to one-for-one to two-for-one. You agreed that it is correct in principle. We know that the application is two-for-one. We are suggesting that proper application of that interpretation would be 1.5-for-one and one-for-one because discretion exists, and it would be a reflection of what Parliament is suggesting to the courts and the judicial system.
Senator Baker: Do you agree or disagree with the following? You said during your presentation that the judge will now have to give reasons, et cetera. However, proposed new subsection 719(3.4) in this bill says that failure to comply to give reasons — failure to put it on the record — does not affect the validity of the sentence imposed by the court.
I have never seen a case where, in law, we say that a judge does not have to give reasons. I am wondering whether you agree with the judge not having to give reasons for someone's sentence, or whether you considered that section.
I understand your general approach is not concerning that section, but I am wondering.
Ms. Redford: Thank you for the comment. We have had a general discussion about that. I believe the intention of that section is to ensure that, when we speak specifically to the question of whether a 1.5-for-one credit should be given as opposed to one-for-one, the judge would have to give reasons. That is not always the case now in the normal practice in a provincial court where sometimes reasons may very well be considered. However, in terms of written reasons on the record that are actually then available for further appeal, that is not always the case.
Certainly, in the day-to-day practice in court, it is simply not the case.
Senator Baker: Are you in agreement, though, with the provision that says that you do not have to give reasons?
The Chair: Two sections are involved in reasons. One is quite technical: The court has to state the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. If one of those were left out, that clause would not have been accepted.
However, just before that proposed new section 719(3.2) says, "The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record," which is much more simple and straightforward in addressing the issues that you have been raising about transparency and public confidence in the justice system.
Would you draw any distinction between those two sections about the importance of them in relation to the subsequent section that Senator Baker is asking about, which says that failure to give all of this information does not invalidate?
Senator Baker: I do not know if you considered that since your presentation was on two-for-one credit. Have you any comment?
Mr. Chomiak: The comment of my officials concerns the validity of the proceeding and meeting those particular standards. I would add two comments. It provides advice to the sentencing judge subsequently with respect to the sentencing provision. Some of the reforms that we are instituting on prosecutions are to try to put more information on the record — not less — in order to meet what we feel is a public demand for more transparency.
Senator Wallace: Thank you ministers. Your insight will be invaluable to us. I would like to start at a little higher level than my learned friend, Senator Baker.
I am intrigued by the fact that Bill C-25 seems to be something that has spurned unanimous agreement between the provinces and the federal government. In today's political world, that seems to be almost unprecedented.
To get to that point, obviously much thought was put into this matter of sentencing and two-for-one credit — the issues that are addressed by Bill C-25. Could you perhaps give us more of the background and history behind the discussions that took place between the provinces so that the committee can have a sense of depth with which this issue has been and still continues to be considered by the provinces? That could be helpful to us.
Mr. Chomiak: I attended all of the federal-provincial-territorial meetings since 2006 with one exception and several regional meetings of ministers, including meetings of associations with Quebec and Ontario. We have seen dramatic increases in the remand population and the type of population.
Let me give you a concrete example. We have a remand centre in Winnipeg that, unfortunately, is quite crowded. We have now had remand prisoners put into our provincial correction institution. We recently expanded a regional facility that at one time was minimum security. We have been forced to put remand prisoners into that population.
That has been the experience across the country. Federal-provincial-territorial ministers and officials have tried to dig into the rationale as to why the remand population is so high. We do not have a magic bullet, nor is there a suggestion that this bill will turn around the remand population. However, it is very clear that remand populations have gone up and that the system is having difficulty dealing with these higher levels of remand.
Manitoba recently did a project called the Front End Project on criminal matters. The Front End Project received a United Nations award. The idea was to speed up the processes and trials, et cetera. There was concern that a time limit would have to be put on remands to ensure that individuals went to trial faster. In fact, the reverse occurred. The Front End Project did not result in the remand population necessarily going down for in-custody. We have a concrete example in our province of the demonstrable effect of the two-for-one credit.
This particular matter has been the number one or number two issue at every federal-provincial-territorial meeting I have attended. When you look at the range of ministers, the change of ministers and the change of administration and governments, it is not only by rote that we have come to this conclusion. We have different populations, and we have difficulty dealing with some of our populations.
However, we have all seen an incredible increase in remand custody. The perception in the public is not favourable. We are not entirely certain of the impact in terms of cost, et cetera, within the system, but it cannot make it worse.
Senator Wallace: One purpose of Bill C-25 stated by Minister Nicholson is to unclog the courts. Mr. Chomiak alluded to a concern that some accused, not all, may be taking advantage of the two-for-one credit if they are to be eventually found guilty by delaying the entering of pleas and delaying making elections as to trial. The result is that it backs up the remand facility.
We have heard evidence from others on Bill C-25 that represent the interests of the accused — The John Howard Society, Canadian Association of Elizabeth Fry Societies and the Criminal Lawyers' Association. They tend to deny that; they say that that is a fallacy and not what actually happens on the ground.
We also had evidence from James Chaffe representing the Canadian Association of Crown Counsel. Mr. Chaffe sent us a letter following his testimony on September 24. I will read a short portion of that. Mr. Chaffe says in regard to this issue:
In the testimony of the CLA and the CBA, the very existence of an accused person building credit for sentencing under our current sentencing provisions . . . was vigorously denied.
He continues to say:
With great respect, the CACC cannot agree with such submissions. This concept and conduct is not mythical, nor is it rare in the experience of crown attorneys across Canada.
This is obviously an important issue to Bill C-25. Are you prepared to comment on your experiences in your provinces and how you regard that issue?
Ms. Redford: I will speak to it in two ways — and I was wondering how I might comment on that issue today.
As you have alluded to, we would not want to presume that everyone in remand is doing that. We would not want to presume that that is a tactic being used 100 per cent of the time.
I have had discussions with a number of people in the justice system who play many different roles in that system across the country. It is hard to document the practice because we cannot always ask what that underlying motivation is. A wide body of anecdotal evidence suggests that this happens.
In Alberta, we hear stories of people who are in remand who have medical appointments in the remand centre and when making those appointments, they ask for specific dates. When they are asked why they want that date, they say that they have already calculated out on the calendar that two days subsequent to their medical appointment they will be pleading out, because at that point in time, they will no longer have to serve time in custody. I concede that that is anecdotal, but I believe that sufficient stories exist that reflect that approach from people who have been defence counsel, such as my colleague from Manitoba; this is more than a random occurrence.
The other point I would make around that has to do with work that is being done by federal and provincial ministers on what I consider to be a related topic, namely, the work that we are doing around justice efficiencies. Separate from this piece of work, we are concerned about backlogs of the court system. It is important. We know it is a test of the system, whether or not people can have confidence in that system, whether they may be victims, members of the public or the accused, and that we need to try to ensure that our lead times are shorter.
One of the pieces of work that have been done around that is to look at the number of applications that are made before we actually get to trial; that is, the number of interim applications, the number of procedures that can be taken into account and the number of times defence counsel can appear. A correlation has been found between those applications and the circumstances that we are seeing with respect to the increasing incidence of two-for-one time. That is all I can say at the moment.
Mr. Chomiak: I will add two quick points. First, I do not think any of us wants to build another prison cell or create another bed universally. Second — and this is tragic — unfortunately, most of our clients or prisoners in the system are offenders who have been in the system for some time and are well aware of the workings of the system. I do not think that can be denied, both statistically or anecdotally, certainly from my own experience. It is tragic that we have reoffenders. That is an issue that we all must work at diligently. However, I certainly do not doubt that the average person who appears in pretrial knows more or less the circumstances of the bail provisions and the circumstances of their custody provisions, from my experience.
Senator Joyal: I want to establish something clearly at the beginning. My learned colleague Senator Wallace has mentioned that the federal-provincial-territorial ministers were in unanimous agreement on this on one-for-one basis. However, this is denied by the minister's answer when he testified on September 16. Senator Wallace has added "unanimous agreement," but the minister never talked about unanimous agreement. The minister gave this answer to a question put to him by a learned senator:
You say "agreement." This was something they urged on me and my colleague, the Minister of Public Safety, on a couple of occasions in 2007 and 2008. There was somewhat of a split in the sense that some of them wanted it straight one-for-one and some wanted it to be 1.5-to-one. We have made the general rule one-for-one and, in exceptional rules, 1.5-for-one. It is a bit of a compromise of all of the suggestions I received. It was not an agreement in the sense that at the end of the conference we all put our signatures to it. These are the comments and suggestions that were made to me and to the Minister of Public Safety in the last couple of meetings we had.
That is the federal minister stating to us that there was no such kind of a unanimous agreement among you that the one-for-one should be the rule. You might contend that should be the rule, and I respect that position, but it is not the unanimous agreement of all the federal-provincial-territorial ministers, according to what the minister himself stated here less than a month ago. Can you confirm that from the meetings that you had in 2006-07?
Ms. Redford: I was not at the meetings in 2006-07, so I might defer to Minister Chomiak about those. In the discussions that I have been part of in the past 18 months, it has been back and forth with the one-for-one or the 1.5-for-one. As I said earlier, that, in my recollection, was always in the context of ensuring that we wanted to have a 1.5-for-one margin so that in cases where judges wanted to use their discretion to reward or encourage positive behaviour, they were able to do that. It was not, in my recollection, a black and white debate as to whether people were saying that it should be one-for-one or it should be 1.5-for-one. There was a principle of one-for-one, and then the question came of whether there should be discretion for 1.5-for-one. As a result of the circumstances that we discussed earlier, that was the consensus around the table.
Whether Minister Nicholson's recollection as to whether that was an agreement or a unanimous agreement, with respect to what we have spoken to today, there is a clear understanding amongst Western ministers that that is how we feel about this. As Minister Chomiak has said, first ministers have spoken to that.
I will let Mr. Chomiak add to that.
Mr. Chomiak: I am just reading from elements of our communiqué, which states:
Although it is true that the specific recommendation of FPT Ministers responsible for Justice was for a limit on credit for time served of 1.5 to 1 generally and 1 to 1 in exceptional cases, the thrust of their reform proposal was not to suggest a specific legislative formula to replace the 2 for 1 credit, recognizing that criminal law is a matter of federal responsibility. Rather, Ministers were recommending a policy approach to achieve the objective of eliminating the 2 for 1credit for time served and preventing higher credits from being issued . . . .
Senator Joyal: Thank you for reading that. That will help us to better understand the context. As you know, in the political debate at this point in time, we stretch words. You know it; you are involved in public debate and parliamentary debate regularly. At some point in time, we get blurred about the reasoning behind the proposals that we have today. I thank you for clearing out the myths that surround this first point.
If I understand your answers, Ms. Redford and Mr. Chomiak, you have no clear statistics of a number of repeating cases where accused would be abusing the remand system. Have you made any studies? Do you have any internal reports on this whereby you could tell us that in your province, this is the way the system works and you have repeatedly seen that abuse of the system? Do you have those reports, or is this, as you stated in your presentation, the general impression of the person on the street; that is, the general impression of a lawyer or a Crown attorney or the Department of Justice? Could you give us more precise facts on which qualification of the remand system compels the one-for-one rules in your opinion?
Mr. Chomiak: Let me try. From an ethical point of view, I believe all those involved with the justice system would not want to suggest that they are in any way contrary to their ethics, and so on. I have to confirm this; my officials cannot do so. I do know that a large percentage of remand population do not even apply for bail on many occasions, for a variety of reasons.
When confronted with the prospect of facing trial and sentencing provision, and aware that they have a two-for-one credit available to them, it seems obvious, as we used to say in law school, that the reasonable man on the streetcar would conclude that a decision of that form could be made.
I can also assure you that, when I was a junior lawyer, I was advised by senior counsel about this very action.
Statistically, I do not think we have that. I do not think you can probe that particular element of reasoning in an individual's mind. All we can look at are the statistics. For some reason, remand custody has gone up dramatically in this country. I am certain this is a factor.
Senator Joyal: However, you cannot quantify it.
Mr. Chomiak: I do not know how one can quantify it in any context. Criminal lawyers would not certainly advise that they are advising their clients of that. I am not sure it would be in the interest of the average offender to suggest that.
I do not know how it could be quantified.
Ms. Redford: It is very difficult to do that. As you know, we cannot be privy to conversations that take place between counsel and their clients. As I said in my earlier comments, I would not presume that everyone is involved in this approach.
However, I would say that it is serious enough that, in a case of the Alberta Court of Appeal called R. v. Sooch, 2008, at paragraph 16, the Court of Appeal commented on the failure to seek release as a factor complicating a request for enhanced credit for pretrial custody.
Therefore, the fact that this dynamic is part of the conversation in the courts and legal community in Alberta and has become significant enough that it is being discussed at our Court of Appeal, and the Court of Appeal has commented on it, is important.
Senator Joyal: However, you, as a Minister of Justice, have never commissioned any expert in the criminal law field of any Alberta university to try to quantify and understand the pervasiveness of this situation in the Alberta system. We have had experts here from the criminal law field, and we have tried to understand that phenomenon. However, no one seems to be able to really put a quantum on this, as far as I understand.
Does it exist? My answer would be, yes. Does it exist to the point where we have to take the system upside down? I am not sure. That is why I am trying to get such an answer from you.
Ms. Redford: I would say that, I, as Minister of Justice in Alberta, have not commissioned any experts. I do believe the phenomenon exists, but I do not believe it turns the system upside. However, it addresses the problem.
Senator Wallace: I would like to clarify a comment that you made, Senator Joyal. In my opening comment or question, when I was referring to the support for this bill from the provinces, you zeroed in on one particular element of it — the one-for-one — and whether there was unanimous agreement throughout the entire discussion among all the provinces on that issue.
That is not the issue. I want to clarify this so there is no misunderstanding. In particular, I would like our panellists to understand the comment.
It related to the support for Bill C-25 in its entirety that is before us today and the support that exists among all provinces for that. That was the comment. I just want to ensure each of our panellists understood the context within which I raised that issue.
The Chair: Thank you. I think that was a clarification rather than a question, but it was a valid clarification.
Senator Wallace: I did have a response from Minister Redford.
Ms. Redford: Yes, I said, "Thank you."
Senator Wallace: Minister Chomiak, was that your understanding?
The Chair: Minister Chomiak? We would love to have you any time.
Senator Wallace: There is always room for one more.
Senator Joyal: If I follow up on my line of questioning, we know it exists, but we cannot quantify it, and it did not turn the system upside down. However, with this bill we are negating a decision of the Supreme Court of Canada in 2000 that was clearly established in Wust in 2000, which is specifically on this issue of credit for time spent in remand detention. I am quoting this because it is important that we understand what we are doing in this bill. Paragraph 45 of the decision says:
In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others —
Here, I am talking about the Aboriginal population.
— but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. "Dead time" is "real" time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.
Therefore, if we establish the one-for-one principle, first, we negate the harshness of the detention environment in remand conditions, and, second, there is no remission mechanism. In fact, we are changing something very fundamental. We are not just trying to equate an apple with an apple. We are trying to say that when you are in detention in the remand context, you live in a much harsher environment and you have no remission mechanism. Now, when you will be in detention, you will be serving a sentence in harsher condition than those found in the sentencing conditions. It seems to me that we are not equating things. We are unbalancing the conditions in which the prisons operate generally, either at the provincial or federal level.
We all respect the effort you make to improve those conditions.
Mr. Chomiak: When the bail reform bill came through in 1972, we were talking about this. The underlying principle of the concept has been eroded over the years. That can certainly be indicated at provincial facilities and with the Gladue decision in Aboriginal issues. In Manitoba, where 90 per cent of our prison population is Aboriginal, we recognize that we have to deal with and treat people in a different fashion. That is why, earlier in my comments, I alluded to mental health courts, to drug courts, to sweat lodges and to other programming that we provide. We have recognized that within our system. Therefore, I do not think the underlying principle of the harshness is accurate any longer.
A second point is that the concept of how the justice system is viewed within this country is very significant to all of us. It begs a review of virtually everything we do in the justice system, insofar as we are dealing with a system that moves rather slowly and is not seen in the average Canadian's mind as current and efficient. I suggest that something as obvious as the two-for-one credit is a principle worth considering in terms of change when the average Canadian views it.
Finally, the minister indicated that there will be a reform bill on sentencing coming forward that will have some cognizance and recognition of the time served in terms of how the system operates on probation.
I suggest that 1972 and 2009 are almost entirely generational differences in the criminal client element that we see in our corrections system. That goes to a larger issue that I could go on ad nauseam about. Therefore, I will stop now.
[Translation]
Senator Carignan: Mention was made of statistical data on the number of people who use the system to benefit from "two for one" credits. As a lawyer, I can understand that it is not easy to access statistics on this practice. I do not see how a lawyer could disclose these numbers. I do not really see how we can compile plausible statistics on this subject.
Another principle comes into play, namely the public's confidence in the justice system. In my opinion, this is part of the basic justice system. You alluded to that confidence. Do you have any research findings or statistics on the public's level of confidence in the justice system? Specifically, given your legal or political expertise in this field, do you have any research findings or statistics on the "two for one" credit granted for pre-sentencing custody and how this practice impacts people's perception of the justice system?
[English]
Ms. Redford: I do not have the statistics with me, but in Alberta about two years ago when our premier became premier, he made a commitment to building safer and stronger communities. Since that time, we have developed our results-based management framework for the Department of Justice around a different set of questions than we have asked the public before.
The questions are framed around whether people have confidence in the justice system. It is a very emotional issue. If the public is asked that question after a series of sentences are publicized that may seem a little difficult for them to understand or if there has been a rash of violent crimes in the city, the statistics tend to become erratic.
However, we have seen consistently that when we frame the questions around whether people feel safe in their communities, the answer has probably stayed fairly static at around 55 per cent of people not feeling safe in their communities. On whether they have confidence in the justice system, this has again remained static over the past two years at around the same percentage.
I could probably provide you with more details after this hearing on that. We have tried hard to frame our questions that way because we do not even believe the public fully understands the ins and outs of a particular sentence or a particular decision that a judge may make. They would not be able to speak to that in much detail.
The Chair: It would be very helpful if you could provide that material for us.
Ms. Redford: We will do that.
[Translation]
Senator Carignan: Being safe is one thing. Perception of safety is quite another. Do I feel safe in my own city? I understand that this may be the focus of a study, but the question remains: Do I have confidence in the justice system? Is the justice system fair? Have any studies been done, and is there any statistical data available on the subject? I can either feel safe or not. For me, it is all a matter of perception. However, do I also have confidence in the system? Newspapers often report on surveys where the public was polled on their level of trust in members of certain professions, such as judges, politicians and lawyers. The survey then goes on to rank these professions according to trust. This gives us some indication that the public's trust in members of certain professions may be limited. Has a similar study been done to gauge people's trust or confidence in the justice system?
Mr. Chomiak: I would like to try and discuss this matter with you in French. This is a complex issue. We know that trust is very important for politicians. It is an emotional subject, as I and all ministers well know. However, at the same time, I think that people do not really understand the justice system. People listen to the radio. They read in the newspapers that a person may have spent only one day in jail and is then sentenced to only two days' incarceration. This is very difficult for people to understand.
[English]
We all know as guardians of the system that the purpose of the Senate is to look carefully at legislation, to have an ability to reflect and not necessarily to react, but to act or to view matters in a different fashion. I again suggest that if Crown attorneys and ministers of justice from all around the country and all the premiers have the impression that the concept of two-for-one is no longer a reality of the conditions in our system or the population with whom they deal, then the underlying principles have no value. It would not necessarily be conducive to public confidence in the system.
Manitoba offers a myriad of programs in the system. Individuals have the opportunity to take advantage of those programs. The sense of harshness of remand is no longer a principle that I suggest recommends itself for two-for-one credit.
I can only speak to a sense that the public looks for logic and consistency in our system. This bill serves to do that. However, it is again why I made my earlier comments that justice ministers and others in the system are well aware of changes that have to occur in the justice system across the board.
Manitoba is very aware of the Aboriginal issues, the issues of women and the issues facing First Nations people.
Those goals and confidence in the justice system have to be achieved in a series of other fashions. This bill helps, but it is only one element of changes that we have to make quite rigorously across the entire system.
Ms. Redford: I apologize. We had been advised by the clerk that we would be here for one hour. The reason I have difficulty with that is, being Western ministers, we have made arrangements to catch planes back to the West. Minister Chomiak needs to be in the house this afternoon.
The Chair: We sympathize with that. I think senators still have some questions. Certainly, I have some questions, which I am willing to put if you could undertake to get back to us later.
Ms. Redford: I would be happy to do that and to undertake to do that. It would be nice to have the opportunity to carry on, but we do need to get back.
The Chair: Catching flights is not something we are unfamiliar with around here.
My questions are of a statistical nature. We have heard testimony from both defence attorneys and Crown attorneys that one effect of this bill will be to clog up the bail courts, which would, by definition, increase the population serving in remand. Have you done any projection of the net impact on the population in your remand centres of all the provisions of this bill? If you have that information with you, wonderful; if not, could you send it to us?
The second question is a little more philosophical. It concerns the calculations — with which I am sure you are familiar — done by Professor Doob and Professor Webster, about the differential impact given the vagaries of the parole system and the fact that time served in remand does not count for parole calculations.
The one-for-one system has a differential impact on people convicted of identical offences, depending on whether or not they received bail. Depending on the circumstances, the calculations come out to different effects. In circumstances which would not be uncommon, the calculations suggest that someone who did not receive bail would end up actually serving more time for the identical offence than someone who did receive bail.
Do you agree with those calculations, or did the learned professors miss something? If you agree with them, how does that affect your perception of what the appropriate range is of the judicial discretion that should be available?
Ms. Redford: Fortunately, even if I did have more time, I would probably want some time to review that before I responded. I undertake, from Alberta's perspective, that we will be able to provide a response to you on those questions.
Mr. Chomiak: Likewise for Manitoba.
Senator Nolin: Excuse me for not being here at the beginning of your testimony; I had a more pressing request. We have talked much about the confidence of the public in the system. We totally understand our role in that. That is probably why my colleague Senator Joyal recited to you an important paragraph of the Supreme Court decision back in 2000. However, it is not static. We totally understand that the population must have confidence in the system.
You do not have to answer this now, but I would like to hear from you, representing at least the Western Ministers of Justice on this. What are you doing at your end of the spectrum to alleviate the understanding, to educate, and to try to explain to the people that we must give the Supreme Court and the law not only the text but also the whole range of why we must respect the law, and why that respect is so fragile in the equilibrium of the quality of our democracy? We cannot put soldiers and police officers everywhere to ensure everyone will respect and obey the law. It is a question of confidence, as you mentioned.
As my colleague Senator Carignan mentioned, you have numbers, but what are you doing to ensure that the quality of that respect is in line with the democracy that we want to build all together? Otherwise, we will make only laws, trying to trigger that equilibrium. You do not have to answer now.
Senator Joyal: My question concerns the increase in the level of crime in your respective provinces. The statistics we received from Statistics Canada nationally shows that crime has decreased in Canada. The perception the public has does not really equate to reality. I would like to know if, in your respective provinces, the levels of crime have increased substantially in a way that the public is concerned with the way that the system deals with it.
Ms. Redford: Yes. I will take that as notice.
The Chair: You do not have to say you will take it as notice. We will assume that you take it as notice.
Senator Watt had a question. We will fax that to you this afternoon. Can we do that, Senator Watt, namely, send them your question in writing, and they will be able to respond to that?
Senator Watt: Yes.
The Chair: Ministers, bon voyage.
Ms. Redford: Thank you very much.
(The committee adjourned.)