Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for October 5, 2011
OTTAWA, Wednesday, October 5, 2011
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:19 p.m. to study the Parole Board of Canada's User Fees Proposal, User Fees Act, S.C. 2004, c. 6, sbs. 4(2).
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, senators, invited guests and members of the public who are viewing the meeting on CPAC. I am Senator John Wallace, from New Brunswick, and I am chair of the Standing Senate Committee on Legal and Constitutional Affairs.
The matter before this committee today is the study and consideration of the most recent proposal from the Parole Board of Canada to increase the application user fee that it presently charges for processing pardon applications. Very briefly by way of recent background information and to put this particular proposal in context, on June 29, 2010, An Act to amend the Criminal Records Act, formerly known as Bill C-23A, came into force. This act amended the Criminal Records Act and placed restrictions in certain cases on applications for pardon. Bill C-23A also added new criteria for the Parole Board of Canada to consider when determining whether or not a pardon should be granted for an indictable offence.
Before the amendments were made by Bill C-23A, the Parole Board of Canada charged $50 for each pardon application. On June 22, 2010, during the committee's study of Bill C-23A, officials from the Parole Board of Canada informed this committee that it planned to propose a fee increase for pardon applications following the enactment of Bill C-23A.
On September 27, 2010, a Parole Board application fee proposal was tabled in the Senate and referred to this committee. The Parole Board proposal sought to increase the pardon application fee from $50 to $150 on an interim basis only. The proposal indicated that a new user fee proposal, taking into account the full costs of the more complex pardons approval process introduced by Bill C-23A, would be presented by the Parole Board of Canada at a later date.
Last October, this committee heard testimony on the Parole Board's proposal for an interim application fee increase; and in its 12th report, this committee recommended that the Senate approve the proposed increase to the pardon application fee.
The Parole Board's current proposal to increase the pardon application fee, which was referred to this committee for study on September 27, 2011, states that the current $150 fee that came into effect on December 29, 2010, does not cover the indirect costs of processing a pardon application, nor does it address the additional requirements of Bill C- 23A. As a result, the Parole Board's current proposal that is presently before this committee today is to increase the user fee for each pardon application from $150 to $631.
Colleagues, before introducing our panel today, I want to remind you that we have a vote this evening in the Senate. The bells will ring at 5:15. My hope would be that we will be able to conclude with this panel by that time. As you know, we are and will continue to be running late. We have another panel to follow, so out of respect for them, I hope we are able to do that. Nonetheless, we will do our job thoroughly and take the time that is required.
Colleagues, I would like to introduce to you our invited guests today. From the Canadian Association of Elizabeth Fry Societies is Ms. Kim Pate, the executive director. Welcome, Ms. Pate. We have had you before this committee a number of times and always find your comments to be very useful. We are glad you are here today.
From the Association des services de réhabilitation sociale du Québec, we have Mr. François Bérard, the director general. Welcome, Mr. Bérard. I understand you have an opening statement. We would be pleased to hear it.
[Translation]
François Bérard, Director General, Maisons de transition de Montréal, Association des services de réhabilitation sociale du Québec: First of all, on behalf of the Association des services de réhabilitation sociale du Québec, I wish to thank you for allowing us to be heard today on this matter.
I have to tell you right away that our association does not support the Parole Board of Canada's User Fees Proposal. In our opinion, while it may appear that the object of today's discussion is an increase in fees from $150 to $631, in reality, we are going from a $50 fee just prior to 2011, that is to say, at the very end of 2010, to a $631 fee just prior to 2012. This is a twelve fold increase from the initial cost and a 1,162 per cent increase in pardon application fees.
This proposal seems to be based on two assertions. First of all, on an administrative level, the Parole Board has argued the program's future economic sustainability depends on the increase in fees and second, on a political level, there is the claim that offenders should be footing the bill and not society as a whole.
As far as the administrative argument is concerned, we received a cost benefit analysis of the proposal that was quite perfunctory in our view, since only the economic aspects were taken into consideration. We also believe that the economic aspect of the analysis is flawed in that it fails to take into account two factors that will bring about a significant drop in the number of pardon applications. First of all, Bill C-23A, that has now become law, has already had some impact on the Board's mode of operation. Furthermore, the omnibus bill contains another bill under study, formerly known as Bill C-23B. By various means, these bills will limit accessibility and impose stricter criteria to pardon applicants. In our view, these measures will bring about a drop in the number of pardon applications.
As to the costs involved, no consideration is given to those who will ultimately have to pay. Let me explain. As a matter of fact, an individual applying for a pardon is not only required to pay the costs of the application before the Parole Board, but there are also expenses stemming from the preparation of said application. On the one hand, an applicant has to obtain certain documents, to photocopy and prepare them and on the other hand, many applicants involved with the justice system ask various organizations to help them complete this process. Some organizations charge as much as $1,000 for this service. A great many eligible applicants simply can't afford it.
One of the consequences of the measures proposed by the omnibus bill tabled in the House of Commons will be that, henceforth, mostly individuals under provincial jurisdiction will have access to a pardon. We know that a great number of these users are relatively poor.
I want to talk about provincial applicants in Quebec and about a study that was conducted by Quebec Correctional Services a few years ago. According to this study, 33 per cent of inmates monitored by Quebec's correctional system were on welfare; 7 per cent were living on a pension; 4.2 per cent had employment insurance benefits and 4.1 per cent had no income whatsoever. A mere 39.1 per cent of individuals under the jurisdiction of Quebec correctional services before sentencing were employed; 7.5 per cent had an illegal source of income and 5 per cent were moonlighting. What's more, 82.4 per cent had no savings at all when they became involved with the judicial system. Those who are involved with the criminal justice system and are most likely to be relatively poor are women and Aboriginals.
Moreover, the cost benefit analysis fails to take into account the positive effects that a pardon can have on a social level. A pardon facilitates social integration, that is, access to quality employment, for example, when travel is required, it motivates the offender to take full responsibility for his future and, in a concrete way, it seals the reconciliation process between the offender and society as a whole.
As to the proposal to increase user fees for each pardon application to $631, we believe this will discourage potential applicants, it will deny access to the poorest of the poor and people we work with will see this as an added punishment when they have already discharged their debt. In fact, the board's proposal goes against social reintegration, against the personal development of those concerned, as well as against reconciliation between the offender and society. Indeed, these individuals will remain second class citizens who will once again find themselves locked in social limbo. In this context, repeat offending will increase and public safety will be at risk.
We believe that the advantages of granting pardons far outweigh the costs involved. For example, a citizen who holds a good job and has not re-offended for a number of years pays more taxes. A citizen who has not re-offended for a number of years and who cannot obtain a pardon or encounters additional barriers to do so, will soon have to rely on social assistance. If one were to choose between a citizen who could become more socially productive and one who is marginalized, one can conclude that there is a clear benefit to facilitating access.
Concerning the more political aspect of this question as submitted by the present government, one recognizes that, generally speaking, the government is making it more and more difficult to obtain a pardon by restricting eligibility, tightening criteria and increasing user fees.
In our opinion, the more specific argument that offenders should pay is in fact subversive in nature. Pardon is part of a reconciliation process. This process involves two parties: the offender and society.
Certainly, there can be other pardon processes in which victims can participate but, in the case at hand, we are talking about obtaining society's pardon through the justice system.
Certainly, there should be a sharing of costs between the individual offender and government or society. The government's proposal is such that the individual offender now bears the brunt of all the costs involved. If the object is reconciliation, the proposal is unjust because it creates inequality. It also gives the impression that one of the parties, in this case society, absolutely refuses to reconcile with the other, that is, the offender.
How can the costs involved be equitably shared between the offender and society? Each party's role within the reconciliation process must be taken into account. The offender applies for a pardon and must demonstrate that he or she is eligible. As for the State, represented by the criminal justice system, it has to act in the name of society, to facilitate the application and demonstration processes, to ascertain the veracity of the information given and to decide if a pardon should be granted in society's best interests.
We have to look at the role and capacity of each of the parties to pay. We feel that in both cases, the State should bear most of the costs.
Again, as far as the argument that offenders should pay goes, we feel that this amounts to pettiness. The argument reveals the great deal of ingenuity that can go into justifying petty acts perpetrated against categories of individuals who are not considered worthy because they are constantly referred to in terms of past actions: thieves, pedophiles, individuals who are ``this'' and ``that.''
But at the present time, nearly four million Canadians have a criminal record and these are the people we are talking about. Only 11 per cent of these four million Canadians, in fact 3,800,000 of them, have been pardoned in the last 20 years.
Pettiness breeds injustice. Nothing positive can come out of it for it only feeds resentment on both sides.
We recommend: that the state pay the major part of the costs involved in pardon applications; that the amount required of individual offenders who wish to apply for a pardon remain at $150 so that they may prove their willingness to contribute their share and also to prevent frivolous applications, and, we also recommend that, instead of penalizing those who have already discharged their debt, we should endeavour to find ways of making sure that individual offenders are really able to compensate their victims.
In conclusion and irrespective of any principle involved, pardons are in society's best interests. They demonstrate a willingness to be reconciled with a member of the community who has certainly erred in the past, but who has since shown a desire to assume responsibility for himself, who has not re-offended for the prescribed number of years and who has reintegrated society as best he could, has invested in his personal development, and, in certain cases, has also tried to compensate the harm caused to the victims involved.
Given the beneficial effects of granting pardons, it might be wiser to facilitate access rather than stripping the process of all meaning and denying access to most of those who could be eligible.
[English]
The Chair: Thank you, Mr. Bérard. Ms. Pate, please proceed with your statement.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for inviting us to appear. I appreciate the opportunity. I need to say from the outset that we were disappointed that Lucie Joncas, my former president, was not permitted to attend. It was the first time ever in my experience as an organization that we have been told we could not bring one of our board members to attend. I understand that she was also selected by the Parole Board of Canada to be one of the members of the committee because of her capacity and expertise. I was asking her to attend as my past president. I have a concern about that process and want to ensure that it was transparently made so that you are aware of that concern.
As most of the members of this committee know, we are a non-profit community-based organization that works predominantly with women and girls who are marginalized — those who are poor, those who are indigenous, and those who are victimized, in particular those who have experienced violence against women. Some of our members offer the only violence-against-women and victims services in their areas. As well, we work with those who are criminalized, or charged, by doing court support programs, sentencing option programs and support within the community; and those who have been institutionalized, which includes those who have been in mental health institutions, psychiatric facilities as well as those in prison. We are best known for our work with women in prison because that tends to be what we are called to speak about. Our range of services is that complete area, particularly when we look at what is being done in the community.
With respect to this bill, as some of you will recall, it was at my appearance more than a year ago before the committee that I was asked why we had not put in a complaint about the user fees for the first round. As a result, I believe we were probably the first organization to put a complaint in on February 9 about the proposed increase that came less than two months after the first increase had been approved. Therefore, we were extremely concerned that right away we were seeing a ramping up of the costs, having already seen massive increase in the numbers of people asking for our support and assistance. Those of you who were here then will recall, and those who were not here, I apologize and will repeat, that we were often called upon to assist with the resources to conduct the process. Many of the women we are talking about are indigenous women; almost all are poor; many have mental health issues; many are trying to get off social assistance; many are often single moms trying to support their families; and they have no resources to pay $50 much less $150 and now the potential fee of $631. Who knows what the next increase will be?
We are also concerned that the cost-benefit analysis, which we finally obtained via the committee reviewing the increase, has not been made public, as I understand. The cost-benefit analysis was clearly identified but I do not know the terms of reference, although I asked for them. The results appear to be a justification for the decision that had already been taken as opposed to a cost-benefit analysis of what the long-term costs would be to the individuals, the federal government, and to the provincial and territorial governments. As my colleague has already indicated, we know that many of the costs will be off-loaded if people cannot get jobs, if they cannot get off social assistance and cannot afford to get pardons. We are extremely concerned that the costing has not been done clearly. It has not been a transparent process, has not been released and, when you actually do have access to it, the process does not appear to have examined the full panoply of costs. Certainly, it has not covered the social costs.
The other piece I would suggest is of vital concern to a country that has prided itself on having one of the strongest constitutions in the world historically is the fact that we are taking and challenging some fundamental notions with this process that the sentence is the punishment. This process and the articulation of it in the media release put out by the minister when this announcement was made clearly articulates that one of the purposes of this is to make people continue the punishment that people experience when they are sentenced. If you need the exact wording, I can certainly find it in the report from the committee, which they quite legitimately, I believe, point out is not an appropriate use of fees, certainly user fees. Nowhere in the User Fees Act does it say that. We would argue that it could amount to an unlawful application of a section of the User Fees Act because it will create a punitive impact on the clientele. Certainly, nothing I read in the User Fees Act indicates it is a legitimate purpose for a user fee increase.
We are concerned that it will change a fundamental part of the rule of law in this country and part of our Constitution — the right to a fair process. This change will further penalize and subject some people, those who do not have resources, to further that penalty by doing something through the back door that you would not be permitted to do through the proverbial front door.
I commend to you the findings of the committee. They have indicated that they have reviewed the process. I understand there was some split between a member of the Parole Board and two members from the community, but they do talk about the need to have a transparent process and wider public consultation — a broader consultation process.
As you are likely aware, it was a very short consultation process. Many of us had to scramble to get something further into the committee once we were asked to do so. The issue that the committee raises is that this be revisited, a proper costing be done and there be a proper comparison with other countries.
I know there is a perfunctory assessment of that in the cost-benefit analysis report that was done for the Parole Board by Regulatory Impacts, Alternatives and Strategies Inc. I know nothing about this company, but it is clear that some of the alternatives that this committee heard about previously were not fully explored — things like a rebuttable presumption.
Yes, there have been mistakes with pardons. People have done things after the fact for which the pardons had been revoked. We know that process occurs. However, if cost cutting is the single largest interest for the government, the fastest way to do cost cutting is to create a rebuttable presumption that after five, ten or fifteen years of no criminal behaviour, someone can have a pardon.
This happens in other places. I pointed that out when I was here before because of colleagues in Australia. I am sure there are other jurisdictions that we could learn from as well that if you do reoffend or even come to the attention of the police, that process can be revoked.
There are certainly opportunities to do this in a far less costly way for the government, because the administration of this will still be costly and will continue to increase. It could be done in a way that is fairer, does not breach our Charter or, I would argue, the User Fees Act, and allows for a transparent and fair process that ensures that those who we need to continue to be concerned about in terms of public safety risks can and will be prevented from being pardoned, absolved or whatever term is chosen to be used. Obviously that is something that could change if their behaviour changes.
This seems to have been driven by one very public case where, admittedly, no one would want that to be the situation. However, it seems to be an expensive proposition for the individuals involved, as well as the provinces, territories and federal government, not to mention organizations like ours who cannot afford to assist with them.
The Chair: We have 30 minutes until the bells ring to take us back to the chamber for the vote. Our first question comes from Senator Fraser.
Senator Fraser: Thank you very much, Mr. Chair.
[Translation]
Senator Fraser: We welcome both of you and thank you for coming. Your comments have been quite interesting.
[English]
Ms. Pate, could we take a closer look at this concept of the rebuttable presumption? The reading I have been able to do suggests there are various ways to carve up this particular subject.
Are you talking about a rebuttable presumption after X many years for all offenders or are you dividing it up between less serious offences and more serious offences? How would you do it?
Ms. Pate: I think you could have it, as exists in the Youth Criminal Justice Act, for the summary conviction and indictable. You could have a period of time that the government would determine to be advisable — whether it is five years or ten years of good behaviour — with the presumption then that the person would be entitled to a pardon.
Perhaps the person would be required to do a police record check and submit that, and then that would meet the rebuttable presumption. If there is other information, the government would certainly have access to that. The Parole Board would if the person had been on parole.
Obviously it would never apply to individuals with life sentences because they would never be finished their sentence, as is currently the case. However, yes, I would see that as something that could apply across the board. There could be nuances to that, but the principle is that the penalty was the sentence that was imposed and presumably that was deemed to be an appropriate sentence.
Senator Fraser: Something that came up last week was the concept that you might have differential fees. Somebody, it may have been the advisory panel, suggested a two-stage process, where you would pay a bit just to get your application in the first time. A high percentage of applications are rejected for mechanical reasons — they are incomplete, more paperwork is needed or whatever — and then you would pay a bigger shot once you got an acceptable application in. That may be one way to go.
Another possibility raised was that less serious offences, where the police background checks necessary to acquire a pardon would not be as onerous, would carry a lesser fee than the checks that would have to be done after a much more serious offence.
Are there any elements in there that would appeal to you?
Ms. Pate: Certainly the recommendation from the advisory panel that recommended that the $50 application fee be applied is one option. That also could be applied in the notion of the rebuttable presumption.
At that point you would know clearly if there was other information that needed to be obtained or you could see there is a clean record. If it is a less serious offence, the process could go forward and the presumption is that the record is sealed. If it is a more serious offence, one where there has been a longer record or, for all kinds of reasons, one that might require further analysis, that could be available.
In one case that I am aware of, a process was requested for additional records to be found because they were not sure everything was computerized. At the time, the individual was a youth and she acknowledged she had a youth record. I do not think that will be the case much longer. I think almost everything is computerized and is shared fully.
With that capacity, there will be the ability to do this in a more streamlined way, if it does not exist now. I am being told that most of this is already on line. It strikes us as a process that could be expeditiously done because police records are on line, CPIC is on line and there is a fair bit of sharing and an ability to do so. The applicant would be signing, authorizing all of those records to be released. There would not be an issue of anything being hidden.
[Translation]
Mr. Bérard: Until now, under existing legislation, there were two types of pardons. The Parole Board granted pardons to offenders who had committed serious crimes, after conducting an inquiry. These offenders only became eligible when at least five years had elapsed since their sentence had been served.
A second category of individuals could be delivered a pardon and, in their case, the RCMP would simply submit a records check to the Parole Board to determine if any new offence had been committed. If no new offence had been perpetrated, a pardon was simply delivered. On this basis, fees could vary since in one case, much research is required, especially by the RCMP, to conduct a criminal records check and also to interview witnesses to the offender's change of lifestyle, for example, an employer, friend or spouse. In other cases, the process involved is a simple administrative act or record of proceedings check.
Senator Fraser: We were already aware of the distinction.
Mr. Bérard: Then that could be reflected in user fees. Nowadays, whether one procedure or another is followed, the $150 fee remains the same.
[English]
The Chair: I would ask our two witnesses, if you can keep your responses as concise as possible, it would be appreciated.
Senator Lang: I do not think anybody argues with the principle of pardon. The question is whether the individual should pay for the cost of the pardon.
When you have gotten out of jail and in five years you are eligible for a pardon, you would have to save approximately $100 a year to be able to pay for that particular right to be exercised. Why would you say that that is too much money for an individual to bring forward when it costs you about $300 a month if you are a smoker? Why would you expect the taxpayer, as opposed to the individual, to pay that amount of money?
Ms. Pate: As I mentioned, I think we should not have the taxpayer paying it either. If it is truly a cost issue, there are other ways we could do it.
In terms of saving money, I will not get into the issues of addictions and smoking. Many of us would like to see people who smoke not have to be in that situation. The reality is that if you are a single mom on assistance, raising a $100 a year is huge. If you save that money, you will be determined not to require it. I do not know if you are aware, but on assistance, if you borrow money or are given money, it is considered income. We do not have anything comparable. It is rarely discussed because the people on assistance do not have the means to challenge those sorts of policies. It may not seem like a lot to us. However, I am always struck by the Anatole France quote about the law applying equally to the rich and the poor. Neither the rich nor the poor are permitted to sleep under bridges or to steal bread, but it has a vast, disproportionate impact if you are absolutely impoverished. Many of the people we are dealing with are.
Senator Lang: We have been given evidence that there is a backlog of individuals who have applied for a pardon. It is very difficult to meet the demands that the board presently has.
As you all know, governments, both provincial and federal, are facing huge deficit problems. The world is in an unsettled financial situation that we are all facing.
Would you say you were satisfied that, with this increase, we are going to be able to take care of that backlog? Presently we have a situation where people are applying who may need that pardon because of their workplace but are unable to get it because of the system. Obviously, new money will not be made available. This should help meet that end. Would you not agree?
Ms. Pate: I do not agree with that, actually. The people I have spoken to in our organization have seen an increase. Once they heard there would be another potential increase, more people tried to think of every way to get their applications in. This has created another backlog. The numbers of people with records will likely increase with some of the changes we are seeing in terms of legislative reform in other areas, so I doubt that it will decrease the backlog. I think it will open the door for greater and greater costs and fewer people able to access the pardon process.
[Translation]
Senator Boisvenu: Mr. Bérard, frankly, your presentation came as a bit of a surprise as was your use of the word ``pettiness.'' Social equity does not always require that the State bear all of the costs. Social equity also means responsibility and accountability. I was thinking of the costs for the victims. Often, the victims themselves bear all of the costs involved after a criminal act. The victim has not chosen to be a victim, but the criminal has decided to be one.
You are contending that the higher the fees involved in a pardon application, the less people will have access. How then to explain the fact that in the years 2000, 9 per cent of offenders enlisted the aid of a private firm to prepare their application, and did so at a cost of over $500 to $600? According to statistics for 2009-10 that I have in hand, 74 per cent of criminals made use of a private firm to prepare their application at an approximate cost of $500-$600, even though the federal government offers this service for free. How do you explain the contradiction? If people have to pay $500, there will be a decrease in the number of applications, but criminals resort more and more often to private firms to prepare their case. It seems to me that your theory is contradictory.
Mr. Bérard: It is not. What we are saying on the one hand is that, due to the increase in fees, in the long run, there will be a decrease in the number of pardon applicants. On the other hand, the omnibus bill adds new measures to those that have already been put into place and these will bring about a dramatic decrease in the number of persons that would have access to a pardon.
If a person is found guilty of four counts of breaking and entering for which concurrent sentences of more than two years are imposed, that person is no longer eligible for a pardon. This will bring about an important decrease in numbers.
As to costs, if applicants rely more and more often on private firms, it is because the access process has become increasingly complicated. The bill under review in the House of Commons will complicate matters even more. The criteria will be stricter and applicants will have to present their case much more convincingly than what is required at the present time.
When you mention 9 per cent, this means that 91 per cent of individuals who theoretically would be eligible for a pardon do not apply for one.
[English]
The Chair: I am sorry, if you have another question, it will have to go on the second round, if we have that opportunity.
Senator Meredith: Ms. Pate and Mr. Bérard, thank you so much for your presentation.
You mentioned in your presentation, with respect to maintaining the $150, that the state should pick up the rest of the cost. When we look at the cost of keeping individuals in our institutions, would you not say that the state has paid a lot of monies already and that an increase in the fees is a small amount compared to what has been paid?
[Translation]
Mr. Bérard: The proposed increase in fees is huge for this type of person who would theoretically have access to a pardon. The state is finding ways to reduce the deficit but, at the same time, billions of dollars are being invested in the construction of penal institutions. Perhaps we could be investing a little less in penal institutions where people are incarcerated and a small amount of money could go to the Parole Board to allow it to discharge its duty to grant pardons.
The deficit is often mentioned but, at the same time, there are choices to be made between various means of reducing the deficit, such as requiring that an offender pay the increase in pardon costs, while hundreds of millions of dollars are about to be spent for the construction of penitentiaries. Will the construction of these institutions, at a cost of hundreds of millions of dollars, help reduce the deficit? I think not.
[English]
Senator Meredith: Then you look at the responsibility of the government to ensure they have institutions that are adequate and up-to-date and to ensure that the protection of these same individuals who have caused an offence to society is taken care of. Hence we create more problems.
I agree with the fact that governments are spending in certain areas. It is necessary. The Parole Board indicates to us that this is just a cost recovery for us to deal with the backlogs in this system, the human capital and resources necessary to deal with these applications. They are actually spending the exact amount to ensure these applicants are dealt with on a timely basis.
I completely disagree with your statement that we should be paying more. I believe that the state has already paid a lot.
Going forward, you asked about the percentage of individuals who are employed or unemployed, and you think it was 54 per cent that were working. Is that correct?
[Translation]
Mr. Bérard: As per users in Québec, 39 per cent of those who were sentenced were employed at the time. That means that, at the onset, 48 per cent of individuals sentenced were in a precarious situation because, for example, they were on social assistance or received employment insurance benefits or a pension.
This is of greater importance to those individuals who will be facing an increase in fees required to apply for a pardon.
[English]
Senator Banks: I will ask a short question to both witnesses and ask them to reply as quickly as they can. It has to do with the rationale behind this, which is cost recovery. I am not trained in the law, as most of my colleagues here are. I think I understand what a rebuttable presumption is. Would you please tell me whether, in your view, pardons are a right or a privilege?
Ms. Pate: Certainly they are not a right currently, but we would argue that, in a society where you want to encourage individuals to be able to proceed, to reintegrate, to be contributing members of the community after having served their sentence and dealt with the punishment they were given, they should be able to move forward. That is a fundamental principle. I would argue it is a human right that we should have entitlement to be able to support ourselves, to have housing, clothing, to be fed, to have some self-actualization.
I want to come back to the cost recovery piece you are talking about. I am sorry to come back, because I wanted to speak to what Senator Meredith raised as well. We pay so much for incarceration. Not everyone on the committee may be aware that in the mid-1990s, at a time when crime rates were at a higher rate, all of the heads of corrections — not groups like ours or lawyers, but the federal, provincial and territorial heads of corrections — agreed that probably 75 per cent of individuals currently in prison could be serving other forms of sentences in the community, contributing to the community, not being a drain on the public purse in the same way and not increase the risk to public safety, and therefore free up more dollars for social services, health care, victims' services and pensions. Yet, we have not chosen to make those allocations. To then use that as a justification for things like this, to further pass on costs to taxpayers or to individuals who are potential taxpayers, is one of the challenges philosophically and morally, and I would say legally, ultimately, for many of us. We are concerned that it is a philosophical shift that is having significant financial implications for all of us.
Senator Banks: In short, the answer to my question is, it is a privilege?
Ms. Pate: It is a legal entitlement right now, but clearly that is being changed.
Senator Banks: Is it a right or a privilege?
Ms. Pate: Right now?
Senator Banks: Yes.
Ms. Pate: Technically, it is a privilege.
[Translation]
Mr. Bérard: We believe that access to a pardon is a right, but that having it granted remains a privilege.
[English]
Ms. Pate: It is called a statutory entitlement when it is worded that way legally.
Senator Runciman: I was a corrections minister in the mid-1990s. I think we are talking apples and oranges here, really. Ms. Pate, you mentioned the one case driving this, and I think you are talking about Graham James, which shone a light on a rubber-stamp process that was granting 98 or 99 per cent of applications before the board. Look at what happened I think last week in Nova Scotia. A volleyball coach convicted of sexual assaulting a 12-year-old girl in 1999 was charged again with another sexual assault, and he was granted a pardon under the old system. That is the kind of thing that the government is trying to address through legislation, and I think cost recovery is necessary.
If we look at what the board has to do now, they have to determine as well that the individual has been rehabilitated. They have to determine whether the pardon would result in a measurable benefit to the applicant and that it will not bring the administration of justice into disrepute. You talked about the old system, CPIC, and obviously that was not working. We ran into some dangerous situations.
I have trouble with this proposal, as I mentioned at the last meeting, because there is no distinction between someone committing a serious crime, an indictable offence, or a series of them, versus an individual on a summary offence conviction. The board indicated to us that it was too administratively cumbersome to stream the two, which would reduce costs, obviously. It was indicated when dealing with an indictable offence that the investigative role is more in-depth, time consuming and more costly. About 35 per cent of the board's applications are summary offences, and it seems to make sense to me in terms of fairness as well that they should be charged a much lower fee. I am wondering your view on the streaming issue and whether that is something that would appeal to your organizations.
The Chair: In providing a response, as I mentioned at the outset, we have seven minutes until hearing the bells for the vote in the Senate. Please keep that in mind. I know Senator Joyal will have a question or two for you.
Ms. Pate: I think anything that would alleviate the challenge for as many people as possible would be preferable to what we are facing. It is difficult to be put in the position of saying to alleviate it for that group but not for others. One of the challenges you mentioned is sexual assault, and that is where this issue has come up. That is a function of a broader issue that we cannot get into today, which is how not seriously violence against women and children has been taken in this country. That is a whole other issue.
In fact, it has not been a rubber-stamp process. People who are not eligible do not apply. Why waste any resources to go through the process for a process that will not be successful? In my experience, the people who do not apply for something like a statutory entitlement, whether it is parole, a pardon or a judicial review, do not do so if they know they are bound to lose and not bound to get it. The success rate is actually an indication of the fact that part of the process works quite effectively, I would suggest.
For those who are concerned about individuals committing sexual assaults, I agree. We are very concerned about those very issues and the fact that it is not taken seriously in terms of status of women resources being removed and in terms of resources for the services that most assist women and children from not being victimized. I think there are concerns that are interlinked. This is not the place to get into it any further.
Senator Joyal: I have three quick questions. First, the principle of cost recovery means that you pay for the service you receive. When you streamline the cost to $650 across the board, as Senator Runciman mentioned, those who command less work subsidize those who command more work, because you are taking an average, and I think it is unfair. There is an unfairness in that kind of principle and the way it is applied in this proposal. Would you care to comment on that?
[Translation]
Could you give us the total number of persons that would be excluded from the process, that is, those individuals who could not apply for a pardon in the short term? What would be the impact on society?
[English]
Ms. Pate, you referred to a Charter challenge in your presentation. Could you expand more on the argument that you think would be a breach of the Charter?
Ms. Pate: In terms of the unfairness, the issue you have raised is one of the unfair things. The other is that if someone is applying and does not have a serious sentence, such as shoplifting or a theft under — not that that does not cause harm in the community, but let us say it is for the theft of something relatively insignificant, but then has to apply for a pardon to have that removed — the cost is far and away in excess of what work to erase that. That is one issue in terms of the unfairness.
The other issue is that you are imposing an additional penalty on certain individuals. Whether it would happen because of cuts to legal aid or because of a lack of access to resources to do it, I think there are some questions about the inequality and the application of essentially an additional criminal penalty to an individual by virtue of, much in the way that the fine options challenges have come where individuals because they are poor were penalized and sent to prison because they could not pay fines. A similar challenge to that is what I am thinking. I do not know of anything in the works, but I think that would be something we would want to look at and explore.
[Translation]
Mr. Bérard: Concerning the number of persons excluded by the legislative changes that are being examined in the House of Commons, nearly all federal inmates will be denied accessibility, whatever the fees involved.
Because of the user fees that could be required, I would estimate that between 50 and 70 per cent of offenders under provincial jurisdiction will not have access to a pardon because of their personal situation. And so, a lot of people would not, a priori, be able to apply.
Concerning the user pays principle, we have a process by which we are attempting to promote some means of reconciliation between the offender and society through the state. This is not necessarily a logical scheme in which a person requests a service from the state, but rather we are trying to find, through the state, some way to seek reconciliation by means of a pardon.
And so, in our opinion, the user pays principle does not really hold water. Rather, we find ourselves in a situation in which we are looking at a way to best ensure that, as a society, our interests are taken into account and that is, that a person should be reintegrated as best as possible in the community and so, that we facilitate access to pardon applicants.
Senator Fraser: Mr. Bérard, you have mentioned the possibility, — should user fees remain at $150 — to ensure that offenders compensate their victims. Could you explain briefly what could be done in your opinion?
Mr. Bérard: If the bill is adopted, users would have to reduce their income by $631. Should user fees remain at $150, the idea would be, instead of hounding those who have already served their sentence and discharged their debt, to move towards some form of restorative justice, that is to say that we could look at encouraging offenders to compensate their victim for the harm that was caused. It's more of a principle. This could mean that in sentencing, offenders would be required to compensate their victims either financially or through services rendered.
I have myself been the victim, on numerous occasions, of theft in my vehicle. A few years ago, when Jettas were quite popular, there was a kind of radio that thieves — in the Montreal region anyway- were on the lookout for. In my case, someone was caught. One of the things that made me happier was that this person not only had to serve a sentence in the community, but also was required to reimburse the costs I had incurred because, on each occasion, car windows had been broken. In the end, I was happier than if a simple sentence had been imposed, and that's all.
[English]
The Chair: Senator Boisvenu, did you have a further question on second round?
Senator Boisvenu: Yes.
The Chair: In order to be in the chamber for 5:30, we will be short of time, so if you could state the question and the witnesses can respond.
[Translation]
Senator Boisvenu: My question goes to Mr. Bérard. For 100 per cent of criminals in 2000, 9 per cent relied on private companies. This is not the percentage of criminals who applied for a pardon. I want to rectify what you said earlier.
Last year, in 2009-10, 74 per cent paid fees of $500, while the federal government offers the same service, that is, making application forms simpler.
Would not the ideal solution be rather to inform applicants that they should not go to the private sector? We can say that it is a waste of money and that if applicants were to use government services paid for by our taxes and that offer the same services as the private sector, they would easily have access to a pardon.
Mr. Bérard: You've raised a valid point.
Unfortunately, we did not have the statistics that you do. Statistics concerning the percentage of people who are eligible and who resort to the private sector are not made public. What you are saying really is that people are being exploited by certain companies. In fact, it would be really beneficial to refer them to the government, without necessarily increasing user fees.
As I mentioned earlier, there is a process by which both parties can contribute so that the entire burden does not fall on the backs of offenders, as is proposed by the increase in user fees to $631 to cover all of the costs involved.
[English]
Ms. Pate: A few years ago in a previous consultation, that whole issue was raised. The minute you Googled ``parole pardon,'' other things came up before the Parole Board. We alerted the Parole Board and asked them to have it fixed. On our website we actually put that information front and centre so people would know. It looked very much like the government site, and people thought they were going to a government service. Then they found out there was a cost. When fees started it became even more complicated and misunderstood.
The Chair: Thank you, Ms. Pate. As we can hear, the bells are ringing. Colleagues, I remind you that after the vote, even if the Senate is still sitting, we are able to return and continue with this hearing. We will hear from the Pardon Society of Canada and the John Howard Society later this evening.
Until then, the meeting is suspended. Ms. Pate and Mr. Bérard, thank you very much. I know it has been a bit of a rush because of our timing here. As always, we are very pleased to hear from you.
(The committee suspended.)
(The committee resumed.)
The Chair: Colleagues, we recommence our consideration of the proposal of the Parole Board of Canada for its increase to the user fee to be charged for pardon applications.
We have before us in the current panel, representing the Pardon Society of Canada, Mr. Ainsley Muller, Chairman of Express Pardons Inc. Welcome, Mr. Muller.
From the John Howard Society of Canada, we have Catherine Latimer, Executive Director. Welcome again, Ms. Latimer.
Before turning to Ms. Latimer for an opening comment, I want to thank you for your patience in waiting somewhat later than we earlier thought to appear before us this evening. As I think you are aware, we had a vote in the chamber and it delayed the process somewhat. Thank you very much for your patience. I know both of you have come some distance to be here and we very much appreciate that.
Ms. Latimer, if you have an opening statement, we would be interested to hear it.
Catherine Latimer, Executive Director, John Howard Society of Canada: Thank you for the kind invitation to be here.
The John Howard Society, as you know, is a community-based charity whose mission is to support effective, just and humane responses to the causes and consequences of crime.
The society has about 65 offices across the country that deliver many programs and services to support the safe reintegration of offenders into their communities and to prevent crime.
It is key to our activity to support that reintegration and our bottom line is the protection of the public and the communities and doing that in a fair, just and humane fashion.
To that end, employment greatly increases the chances of a successful reintegration of offenders into communities. Some studies have suggested that those who are employed are 11 times less likely to commit a subsequent criminal offence. Many people need a pardon in order to be employed or to be members of unions. Without those pardons, a significant number of people who could be contributing to the workforce, to the tax base, will not be able to make the kind of contribution they could make.
I enjoyed discussion earlier about the rights issues associated with the pardon issues and I will wade back into that because there are some significant rights elements associated with the pardon provisions.
The criminal justice system holds people accountable for crime through the imposition of a sentence that is proportionate to the seriousness of the offence and the degree of the responsibility of the offender. The penalty really is in the sentencing of the offender.
Once a person has completed the sentence for the crime and discharged his or her debt to society, the infliction of further state-imposed civil disabilities flowing from the conviction is inappropriate.
Federal and many provincial human rights statutes in Canada have recognized a right of protection against discrimination on the basis of past criminal conviction. This protection usually begins after a post-sentence crime-free period, which has culminated in a pardon under the Criminal Records Act.
Historical practice has been that once the statutory requirements have been met, pardons were fairly routinely granted.
Section 3 of the Canadian Human Rights Act outlines the prohibited grounds of discrimination and specifically says ``a conviction for which a pardon has been granted.'' People under the Canadian Human Rights Act are protected from discrimination if they have received a pardon for a conviction.
Under the newly proposed fee structure, however, it may be that a person has met the legal criteria for a pardon — i.e., has earned the pardon on the statutory terms — but simply cannot afford the $650 for the fee. This means that a poorer person would not have access to protection from discrimination but an equally situated yet more affluent person would have protection from discrimination.
Denying protection from discrimination on the basis of wealth is wrong. It is also inconsistent with the common law tradition to require payment of significant fees to secure advantages of a process closely tied to the criminal justice system that are essentially automatic for more affluent applicants.
I would also like to go into the federal-provincial dynamic, which is that the John Howard Societies in many provinces, including in Ontario, are assisted by Ontario Works, for example, in coming up with the pardon fees. Many provinces have seen the benefits of ensuring that able people find employment, make a contribution, pay taxes and are restored to their communities after they have completed their sentence and after they have demonstrated a period of crime-free behaviour.
The benefit, certainly, from their mind outweighs the cost of the fees originally. We understand that Ontario was ready to assume those costs when it was $50, is less able to consider those costs at $150, and we assume that they will, in this period of economic and fiscal constraint, have significant issues and may not be able to assist with the fee structure if it is $650 or $631.
This may in fact have a disproportionate impact on some of the provinces as well. Perhaps the more affluent ones can help with the fee structures, while some of the less affluent ones cannot.
Relief from discrimination because of prior criminal records can occur through a relatively automatic operation of the law rather than through expensive screening processes set out in the new pardon process. The most objective and neutral test of whether someone has overcome their past criminality is the absence of criminal convictions over a set period of time. Criteria could be set out in a statute relating to the length of the required crime-free post-sentence period appropriate to the offence. Once the period has been passed, the record should be sealed or would no longer be a basis of discrimination for certain purposes.
This approach, the operation-of-law approach, is working well in the youth justice system without any fees being paid by the young people who benefit from the system.
In conclusion, we have a couple of recommendations for your consideration. To ensure a fair access to protection from discrimination based on wealth in the newly-proposed pardon system, these issues could be addressed by the federal government absorbing the costs of the new pardon system. We note that the federal government has signalled that extending resources to support protection of communities and protection of people is something that they are prepared to do, and to prevent further crime. We can think of no better investment for the dollars than to put it into this pardon system, which would allow people who are trying to make reparations and become members of the work force to do so.
A second option might be that the legislation could be amended to engage pardon protections without discrimination based on the fulfillment of certain legal criteria without the more expensive screening application, which will cost significant resources.
The Chair: Thank you very much for those comments, Ms. Latimer.
Mr. Muller, do you have a statement you wish to make?
Ainsley Muller, Chairman, Express Pardons Inc., Managing Director, Pardon Society of Canada: I do. Thank you for the opportunity to speak to you today regarding the proposed pardon fee increase, and also to be able to represent the one in seven adult Canadians who have a criminal record.
My name is Ainsley Muller. I am here representing both Express Pardons and the Pardon Society of Canada, two of many organizations and individuals that overwhelmingly oppose this fee increase. While we support a fee increase, we strongly oppose the fee increase as it has been tabled, but do support the recommendations made by the independent advisory panel, which address the same issues in a more reasonable fashion that does not hurt the most vulnerable Canadians.
A little background: Express Pardons was conceived out of a desire to be Canada's best pardon service and was founded with the singular vision to do things better. To be clear, the majority of people we represent have minor offences and are seeking a pardon that will allow them to continue to be productive members of society.
Express Pardons is a founding member of the Pardon Society of Canada and was established with three guiding principles: first, to be advocates of the rights of those seeking pardons; second, to be stewards in establishing and upholding ethical and standardized guiding principles for the industry; and third, to engage government stakeholders, such as the Parole Board of Canada.
The point is of particular interest and relevance to this discussion because the Parole Board of Canada does not recognize the need for services such as ours to exist. This is clearly represented by the fact that the foundation for this proposed $616 plus $15 to the RCMP is based on a cost-benefit analysis that really was a willingness to pay study, which was completed by RIAS in February of 2011, basing this fee increase recommendation on the statement that private companies sometimes charge up to $1,000 to help prepare documents. However, in reality, the actual average private service charge is closer to $500 and the services provided during the application process are critical to the efficiency of the pardon system. For example, year over year, 40 per cent of all pardon applications are returned for being incomplete. These incomplete applications are most often completed by those attempting to apply for a pardon without assistance. The process and difficulty level associated with this can be likened to representing oneself in court.
What is most troubling to the Pardon Society and Express Pardons is the fact that these fees will place a crushing burden on the millions of Canadians who need a pardon in order to find work, find housing, volunteer or travel freely, allowing them to once again become contributing members of society.
These fees seek to keep the 4.2 million Canadians with a criminal record in an unnecessarily punitive cycle. A willingness-to-pay motivation for the fee increase is flawed.
Consider our client Deborah from Edmonton, Alberta, a single mom in her fifties working at the local hospital, who is not only struggling to make ends meet but struggling to keep her job because of the ever-present threat of background checks. What is her willingness to pay? With a simple DUI from 2002, is it fair to place a further overwhelming burden on her shoulders?
What about Phillip, an aboriginal man from the Northwest Territories who has been in the education system for over 30 years and now faces the imminent threat of losing his job if he cannot receive a pardon. Phillip just wants to teach local Aboriginal children about their culture and heritage. Should a simple DUI from 1988 keep him in the same cycle? What is his willingness to pay?
Further, we find this willingness-to-pay study misappropriated to begin with as this is something far more common in the private sector. A willingness-to-pay study would usually be accompanied by equally weighted cost-benefit and opportunity-cost analysis documents. The findings of the cost-benefit analysis, which is the real cost-benefit analysis completed by the independent advisory panel, found that the costs greatly outweighed the benefits of this proposed fee increase and are not being given due consideration in this process. The findings of this independent advisory panel were overwhelmingly against a fee increase.
This is an important point. The bottom line of this proposal by the Parole Board's own numbers is that it intends to complete half as many pardons at four times the cost and take six times longer to do them. This would fail private sector fiscal scrutiny every time.
What about the opportunity costs of this proposal, the things we are not considering? The proposed fee increase would account for roughly $6.5 million in increased revenue for the Parole Board of Canada, placed crushingly on the backs of those who can least afford it. Let us compare this $6.5 million increase with a few potential opportunity costs, first with the economic opportunity costs.
Canada currently has roughly 1.3 million unemployed people. Even though those with criminal records are likely over-represented in that number, with one in seven adult Canadians having criminal records, this would put the number at around 200,000 unemployed Canadians with criminal records. Of those 200,000, many cannot find employment because they cannot pass background checks. A pardon means these people can once again find employment and be tax-paying, contributing members of society. If only 25 per cent of those 200,000 people could once again become employable by receiving a pardon, that would equate to over $492 million in added tax revenue alone. That is 75 times the increase of this proposal. Pardons can make this happen.
If that same 25 per cent of individuals were no longer claiming Employment Insurance, this would save the government an additional $259 million per year based on the average EI claim in 2007. That is 40 times the increase of this proposal. This number does not even take into account other forms of social assistance or subsidized housing for those who have been unemployed or under-employed longer.
What about the opportunity costs that are far more difficult to put a dollar value to? The pardon system is an effective incentive to not reoffend, and the statistics support that, with a less than a 4 per cent rate of recidivism. A pardon is the carrot at the end of the criminal justice stick. If we remove incentive to not reoffend, is the logical conclusion not that we will see a measured increase in the rate of recidivism? This has been demonstrated by similar failed U.S. policies.
If crime costs $99 billion a year, what would a 1 per cent increase cost? I believe it was Ms. Gagné of the Parole Board of Canada who said to this very committee last week that at the end of the day it was found that for every dollar we spend for a pardon we get $2.83 of benefits; Canada as a whole and the board. Surely this is proof positive that we should seek to make pardons more accessible to Canadians, not less accessible.
Are pardons being singled out for cost recovery or is this just the beginning? If taxes are used to fund the majority of the criminal justice system, then it would be reasonable to assume the same cost recovery principle could be introduced to the entire criminal justice system based on the precedent of this legislation, as this proposed cost recovery is a first for the Canadian government. What is next? Should the courts be charging a full cost recovery? Should inmates be presented with an invoice for their stay when they are released? The next time I am pulled over for speeding, in addition to my wife being angry should I expect an invoice in the mail for the officer's time? That is a bit tongue in cheek, but it illustrates the point of how far cost recovery could go.
In conclusion, the recently proposed Bill C-10 will already serve to drastically reduce the number of qualified pardon or record suspension applicants. When the fee was increased from $50 to $150, we welcomed this increase, hoping for additional resources at the Parole Board of Canada, but to move from a $150 processing fee to a $616 plus $15 cost recovery model makes no sense from a public or private sector perspective.
In summary, the proposed fee increase will hurt Canadians, represents a flawed attempt at cost recovery, and is opposed by those inside and outside the government in a major way. Such a high fee is unprecedented internationally. Almost all other countries, including those of the Commonwealth, provide these services for free or almost free. Likely these societies value protecting such an important part of the justice system. The real question is, why do we not?
The Chair: Thank you, Mr. Muller.
Before turning to senators for questions, I would like a clarification.
Mr. Muller, you are representing Express Pardons Inc. and the Pardon Society of Canada. I want to be clear on this. I listened to what you said in describing the role and the function of Express Pardons Inc. At one point I was left with the impression that perhaps that organization was an advocacy group, which may be true in part. However, does Express Pardons Inc. provide services to those seeking pardons on a fee-for-service basis? Is that the basic function of that organization?
Mr. Muller: My apologies for not being more clear. Express Pardons Inc. is a private pardon service company and was a founding member of the Pardon Society, which was a not-for-profit advocacy group.
The Chair: You represent both elements, the not-for-profit element, and Express Pardon Inc., which is a fee-for- services company?
Mr. Muller: Yes.
The Chair: Thank you very much.
Senator Angus: Welcome and thank you for your comments.
Ms. Latimer, I want to go to your recommendations. Your first one is that the federal government should absorb the costs. By that do you mean that we should do away with the fee?
Ms. Latimer: Absolutely.
Senator Angus: In other words, you do not buy into the concept of cost recovery in this domain?
Ms. Latimer: Our view is that this is probably not the best place to be looking for cost recovery. You have a group that is being exposed to discrimination. They are trying to get a pardon in order to get human rights protection so that they are no longer subjected to discrimination. To charge a fee will create uneven access to non-discrimination. A rich person would get access to protections against discrimination and a poor person would not.
Senator Angus: If I understood earlier witnesses well, and the rest of your testimony, it goes beyond discrimination in the sense that it does not differentiate based on the gravity of the crime of which the person was convicted. A poor person who was convicted of shoplifting may not be able to scrape the money together to get a pardon while someone who committed a graver offences on the non-exempt list may be able to afford it easily. That is your point?
Ms. Latimer: Yes.
Senator Angus: Your second recommendation is that the legislation should be amended to engage pardon protections against discrimination automatically based on the fulfillment of the legal criteria. You are saying there should be certain legal criteria. Can you give an example?
Ms. Latimer: I can give an example of how the Youth Criminal Justice Act works. Once a young person has completed their sentence and they have been crime-free for a specific time, which is two years for a summary offence and five years for an indictable offence, their record is sealed and cannot be used for certain purposes. It just happens. There is no protracted discussion.
I take Senator Runciman's point that you may want to have some opportunity to review the anonymity of that. Maybe you could flag certain cases where you think this should be done. For the great majority of offenders and offences, you could have it done as an operation of law without greatly promoting protection of the public and without jeopardizing community safety.
Senator Angus: You have referred to Senator Runciman. If I understood his questioning to the previous witnesses, he suggested a different fee for a different type of offence. What do you think of that idea?
Ms. Latimer: Within the fee structure, you will still have the access issues based on material assets. Even if there are two less serious offences and you have, say, $150, the wealthy person will be able to get that without batting an eye, whereas the poorer person, who may be equally entitled based on the legal criteria to the pardon, may not get it. To build a wealth factor into something that is leading to a rights entitlement is a challenge. It is the wrong basis on which to proceed.
Senator Angus: I understand your point of view.
Senator Lang: Thank you for being so patient with us as we go to and from the Senate to deal with other issues before us.
Senator Angus: We pardon you for that.
Senator Lang: Thank you, Senator Angus. I have an observation. Most Canadians would be quite surprised if they knew that they were paying at the present most of the fees for an individual applying for a pardon. If the truck driver in Alberta or in Yukon or in Newfoundland knew that, they would be quite surprised that they had taken on that responsibility on behalf of the government and were paying for it.
Mr. Muller, I appreciate your coming here today. I find it kind of interesting that the government should not recover their costs but you should be able to charge what I would see as quite a substantial amount of money for the services that you render because you feel that you are rendering an essential service.
My first question is: When a prospective client contacts you through your website or telephone, do you let them know directly that the service you are providing can be obtained directly from the Parole Board of Canada and that there is assistance available if they are not capable of doing the necessary paperwork? Do you let them know that at the outset?
Mr. Muller: The information is absolutely available on our website for our clients to know that.
I should, however, clarify that one of the issues is that the 1-800 number that the Parole Board of Canada has provides information on how to complete the forms as the majority of its service. The problem is that there are several steps before you get to the forms. You have to get a certified criminal records check, certified court documents, police checks for your locations and where you have lived for the last 5 or 10 years. If you have been in the military, you have to get military documents. That service does not provide instructions on how to complete that process, which we do on behalf of our clients.
There has been a misunderstanding. Our service is not only completing the document but also includes work to collect those documents before the paperwork is completed and sent off.
Charging a fee for that is similar to a lawyer charging a fee for someone that could represent themselves in court if they chose to but perhaps did not know their way around the complex legal system.
Senator Lang: I would like to follow up further with respect to what you provide for service. I was doing research on your website. It states as follows:
Trade-secret inside knowledge of the Parole Board's internal processing manual allows us to secure special status for your application, so we can get you priority over everyone else.
How do you substantiate that statement when we have been told that the Parole Board takes each application as it is presented and that no one can jump the queue? How can you make that statement knowing that is the process of the Parole Board?
Mr. Muller: There are several points. First, when we are talking directly about the Parole Board of Canada, there is a process in place for expediting applications. That is what the website refers to specifically.
In terms of the entire application process, the documents I referred to earlier — a certified criminal records check, the court records, police checks — are time-sensitive documents. When someone applies for a pardon themselves, they often have muddled their way through not knowing how to obtain those documents. By the time they get them together and send them off to the Parole Board, a good percentage of them are sent back because the original documents have expired. The time from receipt of a document at the PBC to the time that they respond, varies from 3 to 12 months. It is a two-year process before those people hear back. The Parole Board tells them that they missed a date, missed a conviction, or missed something else, often small issues. Those people feel frustrated with the process because they have to go back to square one given that their documents have expired; and they end up phoning us anyway.
Senator Lang: I want to follow up further because this is very important. One of the principles behind the ability to charge this amount of money is to take care of the overloaded system, as it presently stands. You have substantiated that by the fact that it can take up to two years to be involved in the process after you are eligible. I would like to hear your comments from the point of view of the statement made that if this type of money were made available through the process, applications would be expedited.
Mr. Muller: I read that was said here. However, this cost-benefit analysis was actually done specifically based on completing 15,000 pardons in a year. I believe that in 2009, the Parole Board completed 27,000 pardons. This document also says that if more than 15,000 pardons need to be processed, the cost could be more than $631. Nowhere in this document or in this process has it been suggested that $631 would address the backlog. It says that they will complete half the number of pardons, not more.
Senator Fraser: I apologize for arriving late; the parliamentary process frequently demands that you be in two places at the same time. We do what we can and no insult is willed, but I am sure it feels insulting to you to come late for important witnesses.
Ms. Latimer, I am intrigued by your argument about discriminating in the access to protection from discrimination. You sort of alluded to this: Suppose we went to a system whereby the fee was not eliminated but it was set differentially according to the gravity of the original offence.
I am not recommending these numbers, but for the sake of argument, it was back to the original $50 for summary conviction, for little stuff; maybe $150 for middle level stuff, the lowest level of things that are done by indictment; and then maybe $630 or more for very serious offences. If the differential was based on the gravity of the initial offence, would that still seem to you to be open to the same kind of Charter challenge?
Ms. Latimer: I think you would stand a better chance of reducing your liability if it were means tested rather than on the seriousness of the offence. If you are looking at changing the fee structure based on the original seriousness of the offence, you are in effect repunishing the person for the offence for which they have already received a sentence and discharged the sentence. They have already discharged their debt to society.
Senator Fraser: By definition that they are eligible, they are not criminals any longer?
Ms. Latimer: Yes, right. They have gone through a significant period after they have finished their sentence where they are signalling that they are not committing further offences and they wish to be restored to the public. At that point, I think the fee structure, if you are going to have one, should be means tested.
Senator Fraser: Let us get down to brass tacks. What levels of income would you suggest as cut-off points for either no fees or differential fees? Have you given any thought to that?
Ms. Latimer: When Mr. Muller was giving his presentation, he gave you a sense of how many of the people who are seeking pardons are impecunious. They do not have the money. As Ms. Pate said earlier, if you start to save money and you are on some sort of an allowance, they claw it back; they do not allow you to accumulate or save.
It is very challenging to figure out where you would have a fee that is reasonable for people that do not have much income. These are people — when they finish their sentence, until they get a pardon — where the state is saying it is legitimate to be prejudicial in terms of their access to employment, housing and all of those other grounds that are protected once the Canadian Human Rights Act protections and other provincial human rights acts kick in.
They do not have a capacity to earn the revenues in such a way. To means test would make that fairer, but I cannot give you a number to say, let us make them pay $50. Fortunately, I am not in that circumstance, so I do not know if coming up with $50 is manageable or not.
Senator Fraser: You might have a think about this and if you come up with any thoughts, let us know.
Ms. Latimer: I would be happy to do so.
Senator Banks: Mr. Muller, we have heard before from a lot of places that about 10 per cent of the people in Canada have criminal records, but you have said today it is closer to 14 or 15 per cent. Is that so?
Mr. Muller: The RCMP has said that 4.2 million Canadians have a criminal record. If we factor in the fact that you cannot have a criminal record as a minor — that number is only referring to adult Canadians — it is closer to one in seven adults that has a criminal record.
Ms. Latimer: It is disproportionately male.
Senator Banks: Ms. Latimer, I apologize along with Senator Fraser that we were not here; there is stuff going on. I think you probably understand that as well as anyone.
What you are suggesting, if I understand it correctly, is that there is a societal value to pardons.
Ms. Latimer: Yes.
Senator Banks: There is a benefit to society that derives directly from granting pardons. Presumably, it is not in the case of someone who has done something heinous, but I have in mind always the 20-year-old who had a joint in his pocket a few years ago and got a criminal record. Now he cannot work in a bank or anyplace that needs bonding, or go to many foreign countries.
Based on the fact that it has a societal benefit, is it your view that some or all of the cost, whatever it is, of the process of granting pardons ought to be borne by the public? Is that the basis of your argument?
Ms. Latimer: I think if it is a social benefit, it should be borne by the state.
Senator Banks: Should no part of the responsibility be borne by the person who committed the crime?
Ms. Latimer: As I stated to Senator Fraser, if you are going to do that, it would need to be means tested and there would need to be some careful provisions put into place. The way it is structured now leaves the whole system open to a sense that you have an affluence-based test for access to protections against discrimination, which is a very difficult position to maintain.
Senator Banks: To go directly to it, do you see that if this were passed, it would be susceptible of a direct Charter challenge at some point?
Ms. Latimer: Yes, because your access to the rights would be protected under section 7. If anyone is exercising discretion about access to life, liberty, et cetera — and this is certainly a constraint on liberty because the state is recognizing that you will experience discrimination during the period in which you have a record — then you are required to exercise discretion in an objective, fair and measured way. If you are granting pardons based on affluence, I do not think that is a criterion that would be considered fair for accessing rights protection.
Senator Banks: The constitutional argument would be that you are imposing, on the basis of monetary capacity, a disadvantage on a person who cannot protect themselves against discrimination by virtue of obtaining a pardon.
Ms. Latimer: Yes. You might well have someone who is equally entitled, based on the statutory requirements, who is poor and someone who is wealthy — exactly the same entitlement. One can access the rights to be protected from protection because they have money and the other cannot. That raises a lot of concerns about the downside risk, particularly when a lot of people who are carrying criminal records are not affluent.
Senator Banks: Can I ask Senator Runciman a quick question?
The Chair: We will have to swear him in first, I suppose.
Senator Banks: Just as a comment. You mentioned, Ms. Latimer, that Ontario paid for the costs of pardons. I am wondering, Senator Runciman, whether that was a process or policy that was brought in under your guidance.
Senator Runciman: Not under my guidance, no.
Senator Banks: Thank you.
Senator Runciman: Mr. Muller, you are talking about the assessment on the cost benefit analysis. Do you have any difficulty with the costing that this study arrived at? I know you suggested that it will cost significantly more, but is the $631 an appropriate assessment of what it is costing the board now?
Mr. Muller: Having read the cost benefit analysis, it bases the suggested fee on a willingness to pay. It is not even necessarily a breakdown of how much the labour will cost per hour over a protected amount, divided by the number of, et cetera; it is based on the foundation that people are willing to pay private companies X amount.
Senator Runciman: I have not looked at that but you are saying there is no real costing here; it is just a willingness- to-pay study.
Mr. Muller: Yes.
Senator Runciman: I guess it has a business impact as well because it will dramatically increase the fee, but you as a private company have concluded that to make a profit, you will charge X number of dollars. I think I read somewhere we are up to $1,000. You indicated that you do not take on the more challenging applications.
Here we are talking about a significant investigation and time that is involved with respect to processing an application like this. I find it a wee bit ironic that you are suggesting that $500 to $1,000 is appropriate for your firm to charge an individual to fill out an application.
The actual cost assumed by the Parole Board is significant in terms of the investigative function, which has been broadened, as you know. I have some difficulty with the position you have taken. I think you have a bit of a conflict, but I will give you an opportunity to respond to that.
With respect to the societal benefits that have been mentioned, I think you have to mix into the equation the benefit to the individuals who are granted that pardon. They are now going to be able to travel and have job opportunities when perhaps the door has been closed on them in the past. There is a significant benefit to the applicant. That is why they apply.
There is an ongoing benefit to that individual, which has to be taken into consideration as well. I think that the public at large also looks at the costs incurred as a result of the actions of that individual: the tangible and intangible costs to victims, the police, courts, incarceration. I do not want to suggest this is punitive in nature. I do not believe it is. I believe in cost recovery, and if this is the actual cost, my only problem with the process is to have two steams with summary offence convictions and indictable offences. We had an acknowledgment with the board that when they are dealing with indictable offences, the time and energy necessary to reach a conclusion is significantly more than a summary offence. I will give you an opportunity to respond to my comments.
Mr. Muller: We charge $500. Let us be clear. There are not streams of people with $500 in hand saying ``Here, do my pardon.''
We have sought to make pardons accessible to as many as possible. We set up a $49-a-month payment plan — $49 is lunch for many people — and you will not believe how many of our clients are not able to provide that. They send us a cheque which bounces consistently and we continue to work. Putting $100 a year aside, $49 a month seems affordable, but it is not.
Our work is not just completing a form, but also all the supporting documents. That is a 12-month process before we submit to the board, and I think $500 over 12 months of work on one file is affordable. That is my two cents.
To the last point, there are other opportunities or suggestions that have not been tabled. There are solutions such as public-private partnerships. I mentioned that the Parole Board has not recognized the fact that we should exist. The reason for the Pardon Society of Canada being founded was to engage them, and bring them solutions saying that we represent a critical mass of the industry. Can we work together? We are completing work and it takes us 12 months, we are submitting it you and you are completing the same work again. If there was an opportunity for us to work together and build a level a trust in the industry, then there would be opportunities to reduce their workload based on work we already completed and they are just rechecking. There are other opportunities to look at as well. That is my point.
Ms. Latimer: You mentioned two things. One is that I should take note that having a pardon is a benefit to the individual and to be relieved of a licence to discriminate on the basis of an un-granted pardon. It is certainly of interest to anybody to be relieved of discrimination. However, it is also a social and moral interest that we do not want pockets being discriminated against who should not be.
In terms of the fee structure, you raise an interesting point. I think there should be a difference between summary and indictable. It should probably be the eligibility of when you are entitled to the pardon. I have some difficulty with in this particular circumstance, but if you are looking at a cost-recovery model and the indictable is a longer, tougher process, you should recover more costs if the process is more entailed.
I would argue that with the number of delays in the system, the process probably needs a thorough pruning. There must be better ways to get the requisite documents and improve the timing and efficiency of the system. I think that might be a fruitful place to look to try to reduce some of the costs as well.
It does engage a rights interest as well. If you were entitled by the criteria to be relieved of discrimination when you made the application and you continue to be subjected to the discriminatory regime for two years, I think that creates a problem. The process itself is allowing a discrimination to continue which would otherwise be protected by the operation of the human rights statutes.
Senator Frum: I am at the end here and its might feel a like a pile on, which I apologize for.
I want to understand better in terms of your business model. The differential between the existing fee and the new fee is $480. Do you charge a minimum or is it a flat fee in all cases?
Mr. Muller: We charge a flat fee of $500 in all cases.
Senator Frum: With this additional incremental $480, can you give us a flavour of what you think will happen to your business model and your clientele?
Mr. Muller: There is no question that clients will already feel this weight. With the current system how we operate is we pay the $150 on the client's behalf. For the amount of work that goes into it over a two year period, we cannot eat the fee. We allow the client to pay the $500 off over months. It is an added burden on top of the $49 fee for our services to then pay $150 in disbursements and fees to get their fingerprints taken, some police checks, et cetera.
To them it feels like they are piling on and we are very much the sounding board. Many of those complaints for why it is so expensive do not end up with the Parole Board. They end up with us.
From our business model, there are so many Canadians that require a pardon, and what will eventually be a record suspension, that we will continue. The last number I heard was 2.7 million Canadians qualify for a pardon but only 11 per cent ever apply. The problem is there is a massive awareness issue. They do not know they need a pardon until something actually happens — they are declined a job or turned away at the border — and it is not ``I can wait two years,'' it is ``I need a pardon now.''
Senator Frum: Senator Runciman mentioned the statistics in Ontario. I think he said 98 per cent of people who apply are accepted. Is that a national statistic?
Mr. Muller: Prior to Bill C-23A, that was correct. It was an objective process based on eligibility. It was paper pushing. Does this person meet the criteria? Check. It was an administrative process which was objective and is now moving to a very subjective process which requires many decisions.
Senator Frum: We have had many abstract and philosophical questions. The value of these pardons is enormous, and the change it makes in a person's life is enormous. You described the transformational power. If we talk about incentives for change to reintegrate and make a pardon more valuable, is saying it is worth $631 as opposed to $150 actually a good thing for society?
Mr. Muller: Definitely. There is no question. My one point to that is it would be difficult to explain the value of a $631 fee if they do not have $50 to pay for a monthly fee.
In a private sector, we would incentivize that process and say, ``You can pay for that once you have that job.'' Then they can see the tangible benefits. To charge them after the fact when they can actually start reaping the rewards of that pardon would be a different way to look at it.
Senator Lang: I want to clarify what is charged by a company such as yours.
I notice that there is a fee schedule for pardon applications. There is Express Pardons, IPC Pardons and Waivers, the National Pardon Centre, and Assured Pardons.
Is it conceivable that a client may need two of these fee applications in order to get a pardon or are they just confined to one?
Mr. Muller: My apologies for not making that more clear. Those were different companies. We were doing a cross- section of what other companies charge. There would not be any reason to hire more than one company.
Senator Lang: I am sorry, I misunderstood the schedule. You talk about an average of $500. Are there fees over and above that? We have heard as high as $1,000 cited for an individual who goes to a private company to get that type of the service in order to be able to get through the system. When you say $500, is that what is paid, or can there be more?
Mr. Muller: There are disbursement fees. I think there is only one service left that used to have a $1,000 fee. They reduced it to $795. A number of lawyers complete pardons. They usually charge more like $2,000. Most of them end up coming to companies like us to do them anyway because we can do them much quicker.
[Translation]
Senator Chaput: Thank you, Mr. Chair. I wish to raise the question of Aboriginals. A great number of those who spoke against the proposed user fees increase claimed that the proposal would be harder on Aboriginals. The following reasons are given: rehabilitation would be out of the question for Aboriginals who live on a reserve; Aboriginals are overrepresented in the criminal justice system. There is the question of female aboriginals in particular, and that of Aboriginals living on a reserve compared to those in a rural area. I would like to hear your opinion on this group, to know what you think.
[English]
Ms. Latimer: Many Aboriginal Canadians live in circumstances of poverty for whatever reason. We do know there is a higher representation of Aboriginal people in the criminal justice system, so the need for pardons would probably be fairly high and the ability to come up with a fee like this would be very limited. It would be very challenging for many members of marginalized communities, or members who are not affluent, to come up with the resources to actually relieve the burden of any kind of hardships that follow after a sentence.
Mr. Muller: Yes, we deal with many Aboriginal persons on a constant basis and we find the same thing. We have a real issue with the cost, even our cost — $49 a month — is very much a barrier for them as well. What often ends up happening is the bands will actually have to pay for the pardon on behalf of their residents.
Senator Chaput: What percentage of those who use your services would be Aboriginals?
Mr. Muller: It is actually quite low. I do not have an exact figure. If I had to guess, it would be below 10 per cent, mostly because of the barrier of the cost.
Ms. Latimer: What you are seeing in people who are seeking a pardon are people who are trying to overcome hardship. They really want to be reconciled with the society and the community and be contributors, taxpayers, breadwinners, and earners. Unfortunately, for many Aboriginal Canadians who have been involved with the justice system, it is more difficult to see that you can be reconciled or restored and make a contribution. I think there is an element of feeling that you are not going to be seen as a contributor so why seek a pardon.
Senator Joyal: I would like to come back to the point raised by Senator Banks. He asked Ms. Pate if a pardon is a right or a privilege, and she answered that it is a privilege, but the access to it is a right.
If I understand the reasoning on page 1 of your brief, Ms. Latimer, it is along the lines that Ms. Pate explained in answer to Senator Banks. It is the access to the pardon system that should not be discriminatory on the basis of means. Suppose a person has been five or ten years without a criminal record and can show that they act totally within the confines of the law, that person normally is entitled to a pardon. However, if that person cannot have access to a pardon because of a lack of $650, they could claim that they are being discriminated against because the board would not consider their request without the cheque to support it. Is that what you have in mind?
Ms. Latimer: That is essentially what I am saying. You can have two people equally entitled. They have passed the crime-free period; they are just as good neighbours, et cetera. One would get a pardon because they have money and the other would not. Getting a pardon relieves you from discrimination. It creates a prohibited grounds of discrimination under human rights acts. The process by which that is found engages fairness and other types of process requirements. I think you could be found to be jeopardizing someone's access to a right, probably under section 7 of the Charter. They have a right to life, liberty, and security, and not to be denied thereof, except in accordance with fundamental principles of justice. I do not think it would be seen as a fundamental principle of justice to discriminate on the basis of wealth.
Senator Joyal: Would your association consider helping somebody to challenge those provisions on that basis? You come to us with a legal reasoning that comes to the conclusion that there is a potential case there.
Ms. Latimer: You raise an interesting point. I am fairly new to the position and I come in as a lawyer, so I always see these legal issues and possibilities for challenges.
Certainly the John Howard Society of Canada has intervened in cases before. I do not think they have led the charge or marshalled a class action. I think when you see discrimination, particularly against the group that we are seeking to see reconciled and safe and contributing members of society, you would think that would be a situation where we should step up to the plate. However, no decisions have been made on that front.
Senator Joyal: Senator Lang said that if Canadians knew that taxpayers were paying now for the system they would be outraged. He quoted the case of a truck driver. I do not think you need to be a truck driver to be surprised by that.
On the other hand, is it not true that maintaining a person on social aid of $400 or $500 a month through the taxpayers' money makes it in the interest of that truck driver to have that person's criminal record removed for the cost of a month and a half of the social aid, more or less, the $650?
When one reflects along those lines, it is a different perspective that they should pay for what they want, but at the same time, if the person is deprived of earning a living and paying taxes, it is a conundrum. Is it the chicken or the egg? Where do we start to put somebody back in a normal life and being a productive member of society?
Ms. Latimer: There certainly is a social cost for people not having a pardon. Ontario Works stepped in to pay the fees for pardons or to support people in getting pardons so that they could have a job. They certainly saw the benefit of having these people contributing members of society in terms of tax revenues.
It is more than just that. There is a whole sense that you are reconciled with society because you are able to contribute and your contribution is recognized. Being relieved of discriminatory practices is extremely important in the process of reintegrating effectively into society.
Senator Joyal: In your brief you mention ``some provinces, like Ontario.'' Can you name other provinces?
Ms. Latimer: I can get back to you with those. I remember looking through a chart. Off the top of my head I would say Manitoba and a couple of others. I will double check and provide that.
Senator Joyal: You can provide that to us through the chair or the clerk of the committee.
Ms. Latimer: Yes.
Senator Runciman: Do they make any distinction on the level of offence with respect to the assistance they provide?
Ms. Latimer: I will have to get back to you on that as well. I am sorry; I do not know.
Senator Fraser: Both of your organizations were complainants, so you will have seen the cost-benefit analysis that was done. You have the advantage on us. I believe we are trying to get it, but we have not yet seen it.
However, it was mentioned in some of the material made available to us. The Parole Board people who appeared before us did not tell me I was wrong when I suggested that, on the basis of what we have seen, the only benefits they looked at were the direct benefits to the person receiving the pardon and possibly to that person's family, which are real benefits, as we all acknowledge. These are sometimes very significant benefits to people.
Am I correct in saying that that analysis did not look at the broader social benefits of pardons? If so, are you aware of any systematic work that has been done to try to assess that value?
You touched a little bit on this, Mr. Muller, but some of it was hypothetical in tone.
Mr. Muller: This is the document you are referring to. I have it right here. It is 50-odd pages.
Senator Fraser: Do you have a brown paper envelope to hand?
Mr. Muller: It is exactly as you described it. It is more of a discussion of what is the benefit to the person and therefore the willingness to pay, and then it loops back around to that the willingness to pay has historically been to private services.
Also to the same point, we look at opportunity costs. Some of them were hypothetical in nature for sure, but we know that 1.3 million Canadians are unemployed. Many of the people who do not have a pardon cannot find work. I speak to them on the phone regularly. It is the chicken or egg scenario: I cannot find work; I cannot get a job because I have a criminal record; I cannot pay for a pardon because I cannot get a job. Which comes first?
Senator Fraser: I am not disputing the veracity of what you say. However, are either of you aware of any work of a more systematic nature that has been done to try to quantify these phenomena more broadly?
Mr. Muller: I do not believe there was time in this process for anyone to do that.
Senator Fraser: Or even before. University professors do wonderful things, but you are not aware of any?
Ms. Latimer: I am not aware.
Senator Fraser: What a pity.
Senator Joyal: Could you inform us whether any other countries that compare to Canada in terms of their criminal justice system, such as England, New Zealand, Australia or even some states of the United States, have a system that is more or less parallel to what we are discussing now? If not, on which principles do they function?
I know that you might not have that answer here, but it would be enlightening to know if we are breaking ground here or if we are trying to establish a system parallel to what exists elsewhere.
Mr. Muller: I do not have a tangible example, but our researcher has indicated that no other countries do charge such a high fee. Australia charges around CAN$500, but that is based on an actual processing fee as opposed to a cost recovery model. I am not fully qualified to speak to the rest of that.
Senator Joyal: Ms. Latimer, could you provide that to us, through the chair if you do not have it now?
Ms. Latimer: I will look for that.
The Chair: That concludes the questions from committee members. Ms. Latimer and Mr. Muller, I want to thank you very much. What you said was extremely interesting and very much appreciated.
(The committee adjourned.)