Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 39 - Evidence for June 5, 2013
OTTAWA, Wednesday, June 5, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other acts; and Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders), met this day at 4:19 p.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we are completing our consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts. Shortly, we will proceed to the clause-by-clause consideration of this bill.
Later today, we will begin consideration of Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders).
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the www.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate committees."
Before we proceed to clause-by-clause consideration of the bill, I want to let members know that we have officials in the room who can be called to the table to answer any technical questions that members might have: Colonel Mike Gibson, the Deputy Judge Advocate General of Military Justice in the Office of the Judge Advocate General; Lieutenant Colonel André Dufour, Director of Law, Military Justice - Operations, Office of the Judge Advocate General; and Lieutenant Colonel Stephen Strickey, Director of Law, Military Justice Strategic, Office of the Judge Advocate General.
We will now move to clause by clause. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed, with leave, that the clauses be grouped according to the parts of the bill as described in the table of provisions of Bill C-15?
Senator Fraser: Chair, I am in general agreement with grouping, but I would ask for just a couple of slight shifts. If you could call first for clauses 2 and 3, then clause 4 alone, then clauses 5 to 73, 74 alone and then proceed according to your plan.
The Chair: All right. Are we agreed to that process?
Hon. Senators: Agreed.
The Chair: Shall clauses 2 and 3 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 4 carry?
Senator Fraser: On division.
The Chair: On division.
Shall clauses 5 through 73 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 74 carry?
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clauses 75 through 108 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Under transitional provisions, clause 109, which is on page 59, to clause 114, which is on page 60, shall clauses 109 to 114 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Under consequential amendments and the Access to Information Act, shall clauses 115 and 116 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Criminal Code, shall clause 117 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Financial Administration Act, shall clauses 118 through 123 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Privacy Act, shall clauses 124 and 125 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Corrections and Conditional Release Act, shall clauses 126 through 128 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under An Act to amend the National Defence Act and to make consequential amendments to other acts, shall clause 129 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Sex Offender Information Registration Act, shall clause 130 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under the Public Safety Act, shall clause 131 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Moving on to coordinating amendments, shall clause 132 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 133 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Under Security of Tenure of Military Judges Act, shall clause 134 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Coming into force, shall clause 135 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to append any observations?
Shall the bill carry?
Senator Fraser: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division. Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Thank you all, and our thanks to the officials for being here.
Senator Dallaire: Chair, I just wanted to thank you for permitting me to join you and for treating me in such a gentlemanly way. I am most appreciative of letting us present our arguments on this bill, and we will see how it continues to evolve. Thank you again.
The Chair: We appreciate your involvement.
We will now continue our study on Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders). According to the bill's summary, the purpose of the bill is:
. . .to provide that any monetary amount awarded to an offender pursuant to a legal action or proceeding against Her Majesty in right of Canada be paid to victims and other designated beneficiaries.
This is our second meeting on the bill. For our first panel, to continue our deliberations, there are some familiar faces. From the Correctional Service of Canada, Don Head, Commissioner; and Michel Laprade, General Counsel, Legal Services. Also available to be called to the table, if necessary, we have officials from Justice Canada: Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues; and Michelle Smith, Senior Counsel/ Coordinator, Support Enforcement Policy and Implementarion, Family, Children and Youth Section. That would be a large business card.
Commissioner, do you have any opening comments you wish to make?
Don Head, Commissioner, Correctional Service of Canada: Yes, I do, Mr. Chair.
Good afternoon, Mr. Chair and honourable senators. I am pleased to appear today to discuss Bill C-350 and how it would impact the operations of the Correctional Service of Canada, or CSC, as I will refer to it in my comments.
In effect, Bill C-350 would change the manner in which monetary amounts awarded to an offender by a court against the Crown are distributed. It proposes to ensure that any monies awarded to a federal offender as a result of a civil lawsuit against the Crown will be distributed first to creditors awaiting payment from the offender. Monetary awards paid by the Crown would be dispersed sequentially and on a pro rata basis to eligible creditors. Monies would first be provided toward paying any spousal or child support order, followed by any restitution order, then any victim surcharge order, and finally towards any other creditor with a judgment against the offender. Should any monies remain following these applicable distributions, the remaining amount would then be provided to the offender.
Further, Bill C-350 would add language to the CCRA on encouraging the accountability and responsibility of offenders and their obligations to society.
Offenders, much like any other individual, may commence a lawsuit against the federal government at any time. In fact, CSC is mandated by both legislation and policy to ensure that such opportunities are made available to offenders. CSC affords reasonable access to counsel, the courts and legal material to federal offenders wishing to pursue such action.
I would underscore, however, that unless the case is against or relates to CSC, or that the offender voluntarily advises staff that he is involved in a lawsuit, it is unlikely that CSC would be aware that an offender is involved in a legal proceeding against another government department. As a result, only cases of which CSC is made aware would ultimately be captured by Bill C-350.
In terms of offender court-ordered financial obligations, at present CSC only receives information regarding obligations that relate to victim restitution orders, victim surcharges, and fines imposed under federal and provincial statutes or municipal bylaws. This information is normally relayed directly from the courts and is recorded in the offender's sentence management file in CSC's Offender Management System, or OMS.
However, following legislative changes made in the Safe Streets and Communities Act, court-ordered obligations are now to be reflected in an offender's correctional plan, and changes were made to CSC's electronic database to more easily record and track the offender's criminal and civil obligations.
Notwithstanding the changes stemming from the Safe Streets and Communities Act, the new information gathered will not meet the appropriate level of completeness for the purposes of Bill C-350, as it would not contain the type of evidence that would be required in order for a creditor to establish a right to payment. To make CSC aware of an offender's debt, creditors would need to notify CSC. In turn, CSC would then require the establishment of a national registry to track these financial obligations for the purpose of this bill.
The Bill C-350 amendments made in the House of Commons address this issue. The amendments aimed at ensuring that the bill only applies to the debts for which CSC has received formal legal notice. If passed in its amended form, it will now be the responsibility of a creditor to provide such notice in the prescribed manner about a payment order, rather than for CSC to actively search for the debts owed by an offender.
Additionally, the amended version of Bill C-350 will now allow for the exchange of information between CSC and other federal government departments and agencies, subject to other acts of Parliament, as well as the authority to develop regulations governing this exchange of information. Of note, the amendments also clarify that Bill C-350 would not interfere with any payments made to offenders pursuant to the Indian Residential Schools Settlement Agreement.
Mr. Chair and honourable senators, I would like to thank you once again for providing me with the opportunity to speak on Bill C-350 and to discuss the impact it will have on the federal correctional system. I would be pleased to answer any questions this committee may have.
The Chair: Thank you, commissioner. We will begin the questioning with the deputy chair of the committee, Senator Fraser.
Senator Fraser: Thank you. As you know, the committee has received a submission from the Privacy Commissioner, and I would like to ask that a copy of that letter be given to Mr. Head and Mr. Laprade — and welcome to both of you — because I will have questions relating to that. I will direct you to the passages in the letter that the questions relate to. The letter itself is not very long.
On page 3 of the letter, in the middle of the page, there is a paragraph that begins "My Office." "My Office" is the Privacy Commissioner's office. "My Office has a long-standing position that the creation of any kind of registry should be assessed with great caution" — and as you just said, we are looking at a new registry.
Ms. Stoddart goes on to say that "Strict authentication measures of individuals designated by written notices would be necessary to ensure there would be no instances of misidentification." I can certainly understand why there would be instances of misidentification in that if you have two prisoners named John Jones or Jean Tremblay, away we go.
Can you give us any indication of what steps you take now to authenticate the names you already have in your registry and what additional steps you would be taking to meet these concerns?
Mr. Head: Thank you, senator. I have just a couple of quick comments in terms of just how we deal with that issue within the organization now. There are many individuals and many types of names — a couple of which you just shared — for whom we have multiple individuals with those names.
Within the system for us, there are several other identifiers. First, given that individuals are coming to us with a criminal record, we have an FPS — the Fingerprint Processing Service — that allows us to distinguish one Michel Laprade from another Michel Laprade — not that my friend here has ever gotten into trouble or had the wrong FPS. Therefore, we have the ability to use an additional identifier.
There are also the various court documents that would come in. For example, under the scheme we are looking at, if an individual creditor was to propose that there is a recovery to be made from a certain Don Head, not only would we be able to verify which Don Head that is by using the FPS, but we would also be able to go through the court documents to see if that decision in relation to that Don Head for some of the actions, particularly the ones that go through the court system.
There is no question that if it is not easily identifiable, we will have to ensure that we have taken all the steps before any disclosure of name is made or before any release of payments to any creditor occurs.
Senator Fraser: I have two more quick questions, and I can put them both together.
First, would you be prepared to consult with the Privacy Commissioner as you proceed to set up this new proposed system? The second question refers to the next paragraph of Ms. Stoddart's letter, where she points out that the court decisions in question may refer to civil court decisions and non-criminal matters such as alimony or damages.
She says:
. . . Correctional Services may have to put in place substantially more complex information sharing agreements involving provincial levels of government.
Do you agree with that assessment and, again, how would you plan to establish this?
Mr. Head: Thanks, senator, again. These are two very good questions. In relation to the first one, there is no question. We would be engaging the Privacy Commissioner in terms of a privacy impact assessment in terms of any information that we collect. We want to ensure that we will not be in violation. The last thing I want is to be cited in one of her annual reports. We would definitely be looking at that engagement.
In terms of the more specific issue, one of the things that is probably worth noting is that the number of individuals who actually get an award are very few. Looking back at our file since 2007, there are only five individuals who have received awards who, if that were the case today, we would have to worry about. We are not anticipating that we are going to see a huge increase in number of offenders who get awards that will create an excessively burdensome process.
Having said that, though, we want to make absolutely sure that we have the right linkage to the right person. For example, in some of the issues in relation to some of the more family specific type orders, we will be working with some of the maintenance enforcement programs in the provinces and territories to ensure again that we have the right identification of the person before any release of funds occurs.
Senator Fraser: Do you agree with her that this bill would apply to those? It seems to me that not many family orders would come as a result of a legal action or proceeding against Her Majesty or an agent or employee of Her Majesty, but I may be wrong about that. I am frequently wrong on these matters.
Mr. Head: I will defer to Mr. Laprade.
Michel Laprade, General Counsel, Legal Services, Correctional Service of Canada: I think you are talking about two things. The family order referred to in 78.1(1)(a) is the order that allows a creditor —
Senator Fraser: There it is. I am sorry.
Mr. Laprade: It is for a creditor to ask to be paid by the offender who has not paid alimony, for example. Those orders usually are enforced by the maintenance enforcement programs, the MEPS, at the provincial and territorial level.
The process by which this will work is that instead of asking that every person that has a family child support order register with CSC, we contemplate a post-award process where basically once an offender has won on award, since there are few of them, on the memorandum of understanding with the provinces on sharing of information we would provide the information about the offender's award and find out if they match in one of their own cases of offenders who owed a family or child support order.
Mr. Head: If I can add on that, one of the important pieces in relation to the bill is the ability for us to enter into these information-sharing agreements, and that is key for us to avoid putting in place an excessively burdensome verification process.
Senator Fraser: Ms. Stoddart is concerned about that, but that will be my second round question.
The Chair: Commissioner, did you indicate to Senator Fraser that, in terms of the categories under 78.1, in your assessment, there are only about five offenders that would fall within those categories?
Mr. Head: Since 2007, there have been only been five individuals who have received awards that this would apply to. As it stands right now, we are not anticipating an excessively burdensome verification process.
The Chair: The Vancouver Sun had a story about the provincial government, the Crown, paying out $3.5 million in the last fiscal year to inmates in the provincial system, so that seems to be a vastly different number. Is there any rationale for that that you are aware of?
Mr. Head: There are a couple of things worth noting. Some of those may have been actually decisions of courts or tribunals, but some may be settlements, which are not necessarily deemed then to be court decisions or tribunal decisions. I think that number includes a sum of all different types of payments that had been made to offenders.
Senator White: I only had one question until you spoke, Mr. Chair.
Do you anticipate possibly seeing a growth in the number? People may not realize they could have actually applied since the legislation did not allow for people to apply for monies that were received while in penitentiary. Is it possible that some out there might now apply as a result? Five is not very many. I am surprised by the number.
Mr. Head: I think that we will see a number of people wanting to come to register, for lack of a better word, but in terms of the actual actions where there will be payments out to creditors there are still very few. There are only five individuals since 2007 who have actually received awards.
Senator White: Do you see it as being possible as well that this would extend into the system when they are in halfway houses on parole? Is that considered to be still under the purview of Correctional Service of Canada?
Mr. Head: Yes, they are still serving the sentence and under our jurisdiction, yes.
Senator White: Any civil suit that comes to fruition a year or two after release but still under the parole system would be covered.
Mr. Head: Yes.
Senator Jaffer: Following from what the chair was asking you, you are not taking the Indian residential school settlements.
Mr. Head: Not at all.
Senator Jaffer: There may be only five because of that?
Mr. Head: Partly it is because in terms of individuals who pursue cases, actually getting to the point of where there is a court decision or a tribunal decision, that is all that have reached that point where there has actually been an award coming out of that. The Indian residential school piece, by this bill, is excluded, which rightfully so it should be, and therefore there are no issues or concerns from our end on that.
Senator Jaffer: I am having difficulty when it comes to spousal and child support systems. Many times spousal or especially child support, maintenance, is registered with the provincial bodies. Are you setting up a system? How are you going to be aligning yourself? If there is an order that has been registered with the provincial bodies, are you aligning yourself with that? How will the two bodies work, or how will you work with the provinces?
Mr. Head: That is a good question. To build on Mr. Laprade's explanation, what will happen in those cases, as opposed to having those individuals registered with us, they will be registered with the provincial and territorial maintenance enforcement programs.
For example, if Don Head as an inmate receives an award through a court decision or a tribunal decision, we would then share that name through the proper safeguards back through the maintenance enforcement programs in the provinces and territories to see if there is already an existing order.
We will not duplicate the registries that they have. We will just say, "We have this individual with this name identified this way. Do you have him in your system? If you do, then here are the registered creditors against that individual."
Senator Jaffer: Looking at this bill and also listening and studying, it can be complicated. If it is spousal support, it is ongoing. Will you set aside money until the time he is in jail? How do you calculate? I will keep it clean by saying let us just worry about child maintenance. Is it what was outstanding? Is it continuing until the child is 21? How will you calculate that?
Mr. Head: It definitely would be based on an outstanding amount. We would see that there would be an accumulation of a sum of money. If that accumulation added up to $50,000 over a period of time and the individual award was only $10,000, that is all that would be paid out to be administered through the maintenance enforcement side of it. There would be no other recovery unless the individual got another award.
Senator Jaffer: Maybe I did not make myself clear; forgive me. Let us say for argument's sake that this person has received $300,000. Would you set aside enough money for this child until that child is 19 years old, or would you just pay what is outstanding to date?
Mr. Head: We would just pay what is outstanding to date as long as he was in our care and responsibility. If he was serving a four-year sentence and this occurred in the first year, we would be calculating, with the maintenance enforcement people, the period of time up to four years.
Senator Jaffer: I have a question on creditors. How long a period of time will you allow for registration of obligations for creditors before payouts begin? To ensure that the ranking is followed, is it on a first-come first-served basis? How will you prorate?
Mr. Head: In the bill there are four categories. If I have four people in category 78(1)(a) and I have a certain amount of money, that money will be prorated against them based on their claim against the offender.
Senator McIntyre: Gentlemen, thank you for your presentation.
Bill C-350 is focused solely on monetary awards. In our opinion, should it include other sources of income, such as inmate earnings, assets, government benefit payments and out-of-court settlements?
Mr. Head: No, it does not include those.
Senator McIntyre: Should it include those?
Mr. Head: That is for the legislators to decide. I am just here to explain how I will administer the law the way it is.
[Translation]
Senator Boisvenu: Mr. Head, it is always a pleasure to have you with us. Good afternoon, Mr. Laprade.
Do you have statistics on the number of claims launched by inmates annually?
[English]
Mr. Laprade: We do not have statistics specifically on the number of claims. We have data on lawsuits that are launched against CSC, but it does not distinguish whether it is from an inmate or another person. We know the great majority are from inmates, so we have statistics on the number of claims that are launched every year, and we also calculate the number of files we close.
There are a great number of lawsuits that are started by individuals that end up going dormant at a certain point in time. They are dismissed because no one actioned them. That happens often in our situation as well.
Knowing how many statements of claim are filed gives us an idea of activity, but we need to know also how many of them are not active because people do not action them. It is hard to tell exactly how many. We would have to do a manual search to know that.
[Translation]
Senator Boisvenu: I know that some penitentiaries make criminals cover some of the expenses related to their incarceration, especially the inmates who receive a pension or an income in prison. Have you used any significant amounts of money received to cover part of the inmates' expenses — in terms of room or board — as certain penitentiaries do?
[English]
Mr. Head: The scheme for us in relation to room and board specifically, which is I think what you are referring to, allows us to take a percentage of the monies that an inmate receives. The law allows a maximum of 30 per cent. Currently I think it is around 25 per cent over a certain amount.
We are in the process of changing that to achieve the maximum. If monies are left after that, we would consider that as part of room and board recoveries as well.
[Translation]
Senator Boisvenu: So you are saying that, if someone is awarded a significant amount of money, you can take 30 per cent of that amount. Correct?
[English]
Mr. Head: No, not 30 per cent of the award but 30 per cent of the gross monies that they get every two weeks.
[Translation]
Senator Boisvenu: So if this legislation passes, the monetary award won by criminals will no longer be eligible to be used to cover part of the expenses. It will have to be given to the family, first, and then to the victims. Is that right?
Mr. Head: No.
Senator Boisvenu: I think surcharges have to do with the victims. Right?
[English]
Mr. Head: We would continue to recoup the room and board, because offenders are still eligible to earn inmate remuneration for their work or program participation.
[Translation]
Senator Rivest: You say that the amendments made to Bill C-350 would not interfere with any payments made to offenders pursuant to the Indian Residential Schools Settlement Agreement.
What exactly do you mean by "would not interfere"?
[English]
Mr. Head: The way the bill is written, any monies that an individual receives as a result of the residential schools settlements are not touchable. They cannot be accessed.
Senator Batters: When I worked for the Minister of Justice in my home province of Saskatchewan, our provincial government instituted some reforms so that victims could receive some assistance under the provincial government's fine collection program to help with getting restitution orders and that sort of thing paid. Since most federal offenders do not receive any award during their sentence, what tools are available to CSC to encourage offenders to pay amounts owed by them as a result of an order for maintenance, alimony, family financial support or restitution orders?
Mr. Head: That is a good question. The vehicle that we have to encourage offenders is called The Correctional Plan. When we become aware of court ordered obligations, we include that in inmates' correctional plan as a way to encourage them to take responsibility and fulfill their obligations. We cannot force them to make those payments, aside from what is in this bill, but by making it part of their correctional plan it could have impacts on future decisions in relation to things such as day parole and full parole granting.
The Parole Board of Canada would have to assess whether the individual is truly on a path of transforming his life and becoming a law-abiding citizen, and they may take it into consideration if an individual has the capability to meet those court ordered obligations and is refusing to do so.
The vehicle for us is to include it in the correctional plan and weigh that in terms of how future decisions regarding the offenders are made.
Senator Wallace: Mr. Head, in your opening comments you reminded us that the purpose of Bill C-350 is to ensure that monies awarded to an offender as a result of a civil lawsuit against the Crown first be distributed to the creditors. That is, "as a result of a civil lawsuit."
You also made reference in your comments to awards that could be made by tribunals.
Just to clarify, would it relate only to monies that result from a court-awarded order, or would it also cover monies that are directed as a result of a tribunal, a non-court decision?
Mr. Head: A tribunal is included in the definition. For example, the Canadian Human Rights Tribunal, if they were to make a judgment against, for example, my organization and the manner in which we treated an offender, that would become monies that would be considered as part of Bill C-350.
Senator Wallace: If the payment was the result of a civil lawsuit that was launched in court and if there was a settlement reached before the court-reached decision — and that does happen, as you know — would monies payable to the offender under a settlement agreement that results from a civil lawsuit be covered by the bill?
Mr. Head: No.
Senator Wallace: It would require a decision of the court or tribunal?
Mr. Head: Yes.
Senator Wallace: You had said that since 2007 there have only been five offender awards against the Crown. What would the total dollar amount be of those five awards?
Mr. Head: I think it was around a total of $500,000, grosso modo.
Senator Joyal: Welcome, Mr. Head and Mr. Laprade. I want to understand the impact of this bill on victims and how it could be used to help victims get the money that an offender might have the benefit of getting under the decision of a tribunal or a court.
If I understand section 78.1(1), it would be indirectly under (c), the victim surcharge. If a province has a program for a victim surcharge then it will help the victim. If the province does not have a program, then that person would not indirectly benefit from that compensation.
Mr. Head: That would be my understanding. I would have to defer to the Justice colleagues here, senator.
[Translation]
Senator Joyal: Mr. Laprade, can you comment on this?
Mr. Laprade: Victim surcharge programs are in place in provinces and territories across the country. We plan to operate similarly to how we work when it comes to maintenance enforcement programs — with an information- sharing agreement, or following a decision to award an offender damages. We would then inform the provincial and territorial authorities in charge of applying the victim surcharge in order to determine whether the offender has been the beneficiary of such a decision in the province or territory. In the case of some offenders, we could be talking about more than one province or territory. Then the money would be transferred.
Senator Joyal: What is your interpretation of paragraph (d)? That provision states the following: "any other amount owing by the offender as a result of a judgment awarded by a court of competent jurisdiction." Let us say a white collar criminal brings a civil action against someone who has been found guilty, and a judgment is awarded by a court of competent jurisdiction. That person could enforce the judgment using the available amount of money. Right?
Mr. Laprade: Yes.
Mr. Head: Yes.
Senator Joyal: Is that the only way for a victim to receive direct compensation?
Mr. Laprade: The restitution orders in paragraph (b) are also included.
Senator Joyal: If restitution orders were made under section 738 or 739.
Another source of concern for me in this bill is the potential interpretation of subsections (8) and (9), which are actually exceptions. That is my interpretation of the wording — especially in subsection (9), which excludes any amount of money owed to an offender as a result of a judgment under the Crown's responsibility. What is your interpretation of this subsection?
M. Laprade: The goal of subsection (9) is to avoid the Minister of Finance having to issue a cheque in the amount specified by the order, as section 30(1) of the Crown Liability and Proceedings Act states that the minister must issue a cheque in the amount specified by the order. However, this is a situation where the amount specified by the order could change, as money would have been disbursed to several sources — perhaps to other creditors.
Senator Joyal: How will that work? Will the money the offender may be awarded by a judgment made under the Crown Liability and Proceedings Act still be available to be distributed pursuant to section 78.1? I have section 30(1) of the Crown Liability and Proceedings Act with me, and I will read it:
[English]
On receipt of a certificate of judgment against the Crown issued under the regulations or the Federal Courts Rules, the Minister of Finance shall authorize the payment out of the Consolidated Revenue Fund of any money awarded by the judgment to any person against the Crown.
[Translation]
Does this mean that the money an offender would be awarded by a judgment made under the Crown Liability and Proceedings Act remains available to be disbursed under paragraphs (a), (b), (c) and (d) of section 78.1?
Mr. Laprade: The monetary award an offender may receive pursuant to a legal action against the Crown — as the Crown Liability and Proceedings Act applies to any action against the Crown — is not the same award set out under section 30(1), but rather the award that will be allocated after the creditors have been disbursed. The objective of paragraph (9) is simply to ensure that no conflict arises between that legislation and section 30(1) of the Crown Liability and Proceedings Act, which states that a payment must be issued in the amount awarded by the court. However, if other creditors have to be paid, the amount awarded by the court will change. It will be lower because other creditors will have been disbursed. That only sets aside the Minister of Finance's obligation to issue a cheque in the amount awarded by the court's order because a different amount will have to be awarded once the creditors have been paid.
[English]
The Chair: Commissioner, when you have legislation like this placed before you, you or your staff are briefed by Justice officials. I know you said, in response to Senator McIntyre, that it is up to the legislators, but on occasion I assume you have some questions on these issues. I understand the exemption of the residential schools, but I am curious if you were given any explanation with respect to subsection 1 not applying to any amount awarded in the decision for costs. The costs in most cases, I think, are lawyer's fees. One would wonder why offenders' lawyers are getting special treatment over victims. Were you provided with any explanation as to why that was being exempted?
Mr. Head: Yes, there are a couple of reasons. One, of course, is just the issue of how broad the scheme is to administer. The broader the scheme for administration, one of the issues was the cost or the burden of doing that. One of the other issues raised around the settlement piece is that most settlements end up having confidentiality clauses attached to them as well. There were reasons put forward by the Justice lawyers as to why this narrow band was put forward.
Senator Fraser: Let me begin by coming back to Senator Jaffer's questions about pro rata. I am particularly looking at the concept of child support here, because child support is a continuing obligation.
When you are figuring out who gets how much out of what is likely not a large sum of money — at least on the basis of what you know now — would you take into account future obligations such as the duration of the sentence for child support, or just present and past?
Mr. Head: Just present and past, that is right.
Senator Fraser: Okay. It is present and past, and then all these other things go in order. When you say pro rata, will you just look at the total amount owing under all of these headings and then divvy up the award? You are shaking your head.
Mr. Head: My Justice colleague here can correct me if I am wrong, because if I am wrong, I have to change our practices. Let us look at category 1, for example. If I have four offenders identified in category 1 and one in category 3, and if those four in category 1 were distributed in terms of a total amount, one had accounted for 50 per cent of the total amount, 20 per cent and 10 per cent —
Senator Fraser: That is the total debts?
Mr. Head: That is right.
The amount, depending on the award, would then be divvied up on that prorated basis. If there was any money left, I would then start to deal with the category 3. However, if there is no money left after that pro rata —
Senator Fraser: It all goes to category 1?
Mr. Head: Yes.
Senator Fraser: Mr. Laprade, were you part of the drafting for this bill or the amendments made in the Commons?
Mr. Laprade: Not the drafting of this bill. A colleague of mine may have worked on the amendments that were proposed to the bill.
Senator Fraser: They were fairly sweeping and extensive amendments, as I recall.
Let us return now to the Privacy Commissioner's concerns. I am at the bottom of page 2, where she is talking about the disclosure that will be required basically to make this system work. Her second last paragraph says:
Correctional Services and affected departments and agencies may disclose any information necessary to establish [the offender's] identity.
She goes on to say:
This requirement appears somewhat overbroad: departments and agencies that would be required to share personal information are not defined and the nature and extent of personal information that would need to be disclosed is not specified. Also, there is a lack of clarity with respect to the disclosure mechanisms.
Those seem like fairly serious criticisms.
Do you already have in place criteria for who gets to disclose what information and how privacy rights are protected? Can you give us any idea, for example, of the number of departments and agencies, and what kind of departments and agencies, we would be talking about?
Mr. Head: Those are good questions, senator. I have just a couple of comments and my colleague can jump in again.
As it stands right now, we are not aware of any awards that an offender has received as a result of actions with other departments. Again, we are not anticipating that there will be a huge number here. On the one hand, that gives us a little more comfort in that we have a lot of time to get the formula right. It gives us more time for engagement not only with the Privacy Commissioner but with the departments and agencies.
Just in terms of a parallel experience, you will recall, senator, that when the bill came forward regarding pension cheques for offenders — and that bill passed — we entered into an arrangement with Human Resources and Skills Development Canada in terms of the kinds of information that would be exchanged.
Again, there was engagement with the Privacy Commissioner to ensure that we are not collecting any more information than is necessary to establish the absolute identity. It is a case that we are not looking for 10, 20, 30 or 40 factors; if we can establish absolute positive identity with two or three factors, that is all we would pursue.
Like I say, the comfort we have at the moment is that we are not aware of any individual cases of awards as a result of actions with other departments. That gives us more time to work through the details with those departments and specifically with the Privacy Commissioner's office.
Senator Fraser: Do I have time for another question?
The Chair: Perhaps on a third round. We have five other senators on this list, so hopefully everyone can tighten up their questions and responses.
Senator McIntyre: There were significant amendments to Bill C-350 in both the Standing Committee on Public Safety and National Security and in the House of Commons. In hearing your evidence, my understanding is that you are in agreement and satisfied with those amendments. Do you see the need for further amendments?
Mr. Head: From my perspective, the amendments have made it easier for me to be able to administer the scheme proposed. If the unamended bill had gone forward, it would have been extremely difficult for my organization to administer; I would have literally had to have become the Correctional Service and Collection Agency of Canada.
Senator McIntyre: I understand your position, because there were six major amendments in front of the standing committee and at least one in the House of Commons. You are saying you are satisfied with those, are you?
Mr. Head: Yes.
[Translation]
Senator Joyal: I would like to come back to subsection 78.1(8), which states that this section applies subject to any other act of Parliament. Am I to understand that a piece of legislation such as the Bankruptcy and Insolvency Act or the Income Tax Act — which provide for amounts being distributed according to a set order — would have precedence over the bill based on the distribution of section 78.1?
Mr. Laprade: Exactly. The amendment made to the bill aimed to avoid a conflict between the Correctional Services Act and existing federal legislation, which already sets out priority systems in certain cases and provides for the payment or reimbursement of debts. Another objective is to ensure that existing priorities in similar pieces of legislation are maintained, to the extent possible.
One of the reasons family-related orders have priority is the fact that this is also the case in most other federal pieces of legislation — where indirect priority is given to orders of this type — as well as in provincial legislation.
Senator Joyal: How could someone who has been awarded alimony know that the individual who is supposed to pay them alimony is imprisoned? My understanding, according to your presentation, is that creditors are supposed to contact you, but you do not contact them. How should a mother with children who is supposed to receive alimony know that the person who has to pay that alimony is imprisoned by you in an institution that could be in a province very far from the province where the children and the spouse live?
[English]
Mr. Head: Again, that is a very good question, senator, and one of the things we are trying to work through in terms of the implementation of this. There is no question if this bill is passed that there will have to be a significant communications piece that goes along with it. It would be communicating back out to the provinces and territories, through the various courts and tribunals, so they in turn can let individuals know that this may be something that has to be pursued.
Even if a creditor believes that someone is incarcerated, we will still have to go through the process. They could file and say, "I have a claim against Don Head." Then we will still have to verify whether Don Head is in our jurisdiction.
Senator Joyal: Or the real Don Head.
Mr. Head: The real Don Head and whether that Don Head is still within our jurisdiction or even in our jurisdiction at all. There are some challenges for us in terms of doing that and definitely some challenges in terms of individuals.
Mr. Laprade: When we are talking about family allowances and child support orders, those are recovered by the Maintenance Enforcement Programs, the MEPs, that exist at the provincial and territorial levels. Normally, for a very great majority of all family and child support orders, the recovery of the money for the creditor is done by the MEPs. We do not have to have these individuals registered with CSC because we will do so by informing the MEPs every time an offender wins an award, and they will be able, through their own database, to determine if that is an offender. If yes, we will match that up.
Mr. Head: As Mr. Laprade has pointed out, senator, there are two schemes. One is sort of proactive, and the other is post-award. Using the Maintenance Enforcement Program as an example, that will be a post-award approach where we will reach out back through the provinces' and territories' MEPs, the Maintenance Enforcement Programs, to say, "We have Don Head here. He has got an award. Is there a maintenance enforcement order in place?"
Senator Joyal: In relation to the drafting of the regulation provided at 78.3, will you be involved in the drafting of those bylaws or regulations? As I understand it, much of the implementation of this bill will be left to the drafting of regulations. The devil is in the details, and many of the principles to be respected in terms of privacy will be caught in the regulations. Will you consult or submit those regulations to the Privacy Commissioner before you start the process of proclaiming them?
Mr. Laprade: Obviously we will be involved in the drafting of the regulations because we have to determine the form or the manner in which these notifications to CSC have to be done and what prescribed information we need from the creditors. As we explained, there are two streams, the proactive and the post-award streams, that are different in terms of how we exchange information. As to the regulations in terms of the type of evidence we will require, at which point will we require that? You can imagine that if a person wants to register with CSC the fact that they have a restitution order and they do so now today by providing us information about it, if the offender does not win an award until 15 years down the road, we will need to verify that information with the victim at the time he receives an award. We need to have in the regulation a scheme by which not only do we get information from those who are registering the fact that they are creditors, but they will have an obligation to inform us of changes in their status, changes in the award, if the amount has already been paid and, at the end, a verification that the order is still valid. There are a number of factors that need to be placed into the regulation so we basically have a good scheme where we are not paying out amounts that have been paid already or that we are paying out to the right person.
The Chair: Before we move on to Senator Boisvenu, I will remind our witnesses of our request for concise responses.
[Translation]
Senator Boisvenu: I know about the association of offenders' families, as I have attended one of their seminars. I think that organization, which operates across Canada, is financially supported by the service. I know this bill will prioritize offenders' families to ensure that they have the means to survive after a husband or a father is incarcerated. Does the service now financially support those families directly or in other ways?
[English]
Mr. Head: Not directly. Financial support? No, senator.
Senator Jaffer: I have two questions. I do not mean to keep at this, but you said outstanding plus present spousal, and then I understood you to say that if the person were there for four years, you would set aside money for four years for child support.
Mr. Head: I am sorry, senator. I may not have explained that clearly enough. That would definitely be the manner that we would take into account. If the individual was going to be with us for four years and the amount of monies that the offender received would cover up to that four-year period in terms of the calculation, then those monies would be —
Senator Jaffer: You would hold it?
Mr. Head: It would be disbursed through whatever process. It would not necessarily be a case where we are going to be banking money and holding it.
Senator Jaffer: Did I hear you correctly when you said that you had five cases where awards had been given since 2007?
Mr. Head: Yes.
Senator Jaffer: Say it has been five years since, as this is 2013, so you have had one case per year?
Mr. Head: That is right, yes.
Senator Jaffer: This is all being put in place for one case per year?
Mr. Head: That is just the way the numbers have worked out, yes.
Senator Batters: I have just a short supplementary on that earlier issue that Senator Jaffer asked about. On the child support amount, if there was an outstanding one and that particular offender was due to be with you for four years, if there were no child support arrears, you would look at what the monthly child support award was projected over that four year time frame and provide that entire amount? Is that correct? Did I interpret your last answer incorrectly? Say he was paying an amount of $250 per month.
Mr. Head: I will try to explain it the best I can. The way I understand it, if an individual receives an award of, for example, $20,000 and we have a creditor making application, verified, and it is one of these monthly kinds of payments, then those amounts of monies up until that point in time the $20,000 is expunged would be —
Senator Batters: If it is a monthly child support award of $250 per month until that child is 18, do you project that amount over the four years?
Mr. Head: No.
Senator Batters: You are just saying the monthly $250 amount, plus any arrears in existence, that would be the amount, not $250 times four years?
Mr. Laprade: It is only the amount owing. That is what is in the act. The amount owing, and owing means past and today. What is in the future is not yet owing because the offender still has a chance of paying these amounts on his own. The scheme is not built so that we become the manager of the offender's money in terms of how we pay his debts.
Senator Batters: Right. You are not becoming the maintenance enforcement office. Thank you.
The Chair: Thank you, gentleman. We appreciate your appearance here today and your assistance with our consideration of this legislation.
For our final panel today, please welcome Stephen Fineberg, Vice-President of The Canadian Prison Law Association. Welcome to you. We appreciate your appearance here this evening.
Please proceed.
Stephen Fineberg, Vice-President, The Canadian Prison Law Association: Thank you. I have provided a written presentation — late, of course, but you have it. In that presentation you will see that I identify our organization as a national organization of prison law practitioners from across the country. We advocate on behalf of incarcerated persons and on behalf of the rule of law as it affects the prison environment.
I wanted to mention that all our activities undertaken on behalf of the CPLA are performed on a volunteer basis.
I want to present a different point of view — one that you have not received before — so I appreciate the opportunity you are giving me to express another point of view.
In my presentation, I focus on the troublesome implications of this bill. We are opposed to this bill on several grounds. First, we oppose it on grounds of the social policy that underlies this legislative initiative. We are disappointed that a bill has been brought forward that attacks the civil status of a category of Canadians. There was a time when conviction carried with it a complete loss of civil status — civil death — and it was not until 1906 that legislation in Quebec brought back the civil status of people who have been convicted.
Even more recently, though, in the time that I have been practising, the civil status of prisoners has been in question. When I started practising 30 years ago, prison wardens were under the illusion that their permission was needed for a prisoner to marry. There was no law that so proclaims, but it was understood by Correctional Service of Canada that if you were convicted, you could not marry without permission. Since 1979, the Supreme Court in the Solosky case has recognized that prisoners have the same civil status as other Canadians; they are allowed to do anything Canadians can do, except what is necessarily taken away by the fact of imprisonment. For instance, they cannot go to a theatre on a Saturday night, although there is no law that says they must not; that is the necessary implication of the sentence imposed.
Since 1979, the Supreme Court has recognized that prisoners have the same civil status as other Canadians. CSC has been forced to recognize this because the CCRA has incorporated the ruling of the Supreme Court right into the legislation, so it is expressly stipulated that prisoners have the same rights as other people.
However, this bill before us begins to erode the civil status of prisoners by adjusting the way in which their civil commitments will be met.
There are those who may say that it is not a drastic adjustment and that prisoners are not seriously hurt by the kind of measure that is put forward. I am arguing that a difference is being made. Federal prisoners will not be treated by the law with respect to their civil obligations in the same way as all other Canadians, and this is a step in the wrong direction.
This does not mean if the bill is adopted that tomorrow prisoners will suffer civil death again, but it is a move in that direction and that is a move we have not seen before. That aspect of the bill I find dangerous, and I think if this is successful, it may encourage other initiatives that further erode the civil status of this category of Canadians.
The second social policy ground on which my organization opposes the bill is that we believe it pre-empts and frustrates the approach taken by Correctional Service of Canada to date to make prisoners responsible for their civil obligations. Bill C-10, which was adopted only recently and which I assume reflects some profound thought on behalf of criminologists and legislators, approaches the matter in another way. Bill C-10, as Mr. Head has explained to you, incorporates the obligation to meet your civil commitments, to satisfy your creditors, into the correctional plan. If the correctional plan is not satisfied, then there are negative implications, or I should say repercussions, for the prisoner. Those implications involve a reluctance to transfer the prisoner to lower security and a reluctance to recommend the prisoner for release, for day parole, for full parole, all kinds of privileges, all the privileges administered by the Correctional Services of Canada and the Parole Board of Canada.
Correctional Services' approach has been to try to make the prisoners responsible for their own behaviour. The correctional plan attempts to nudge the prisoner firmly in the direction of pro-social attitudes and responsible behaviour. It does not impose a decision on the prisoner. It wants the prisoner to take that decision himself in the hope that, when these people are released, they will continue to harbour the same attitudes and exhibit the same kind of behaviour. This bill pre-empts that attempt, which is at the very core of Correctional Services' mandate date to try to rehabilitate prisoners.
A decision is imposed by the law behind the prisoner's back. The invisible hand of the law simply transfers the money from A to B. How will prisoners perceive this? It is speculation on my part, but I imagine they will see it as unfair and arbitrary because it is done behind their back and without their assent or participation. It is the very opposite of Correctional Services' approach that is reflected in the legislation you have previously adopted.
Other objections to this bill can be found in the Charter. We think that section 15 of the Charter represents a serious challenge to the constitutionality of this bill. For a section 15 challenge to succeed, prisoners would have to be identified by the courts as a group appropriate for a section 15 challenge for the application of section 15 of the Charter. To date, there is no Supreme Court judgment that has defined prisoners as a group that is governed by the terms of section 15. However, there has never been a majority decision of the Supreme Court that excludes that possibility. It remains to be litigated. I am convinced it will be litigated if this bill is adopted. I think you are moving toward constitutional adventure.
The more obvious constitutional objection is found in the separation of powers and section 92, that familiar contest. Clearly this bill invades provincial territory. This bill duplicates grounds already covered or occupied by provincial legislation and belongs to the authority of provincial assemblies.
The next objection is that it is simply redundant. In my paper, I discuss the recovery mechanisms that already exist at the provincial level. You are thrusting Correctional Services into an administrative adventure that it must accept if you impose it but which I think represents a huge challenge to Correctional Services. Already, Correctional Services is overburdened by its obligations. The complete collapse of the grievance system is evidence of that. Its failure to provide adequate programming as mandated by the law demonstrates that it is struggling to keep up with its legal commitments.
This is a whole new adventure, and I see from Mr. Head's presentation today that Correctional Services is ready to grapple with it. I can see that a lot of work has been done to figure out the nuts and bolts. That does not mean it is easy or a good use of resources. I think they are moving into very murky waters.
Privacy concerns have been raised as well. I was glad to hear that today.
Given the troublesome implications of this bill, I argue there have to be pretty important reasons to move into this area. Consider the reasons that were given to this committee at its last sitting by the sponsor of the bill. Mr. Lauzon told this committee to put this in context. A person in prison who wants to be a troublemaker can do that by interfering with the administration of the prison. If I am not mistaken, these complaints have to be answered within 60 days. That takes a lot of resources and costs a lot. It is almost like a lottery for prisoners. Occasionally they hit the jackpot. They get $300 or $3,000, which is a lot of money when you are in prison, and it is something to do while whiling away the time.
In reality, as Correctional Services will confirm to you, the grievance system may not order damage awards in response to complaints. Money is available only as compensation for illegal loss or destruction of property. Thus, when a prisoner receives $100, it is because staff have destroyed or lost $100 of his personal property, so he cannot be said to come out ahead. He breaks even. In passing, if a complaint is answered within the delay to which Mr. Lauzon refers, a minor miracle has occurred.
As for cases not brought to the Correctional Services complaint system but filed with the Federal Court where damage awards are possible, this is hardly a prisoner's playground. The litigation is long and demanding, and costs will be awarded against a prisoner who sues and loses. These costs are deducted month by month from the prisoner's paltry pay for as long as it takes. Prisoners quickly discover, just as free Canadians do, that litigation can prove to be a dangerous game.
A further example adduced at your previous sitting as evidence of the need for a federal seizure system is the large amounts the CSST awards for accidents suffered inside the penitentiary. In reality, CSST cannot deal with accidents in the penitentiary, and it does not have jurisdiction over federal prisons. Moreover, as Correctional Services insist, the law does not view the activity of prisoners as paid labour but rather as the performance of programs.
The Chair: Mr. Fineberg, I am sorry to interrupt, but we do have a five-minute guideline. You have doubled that. Some members would like to ask you questions. Would you briefly wrap up?
Mr. Fineberg: I was going to explain that prisoners are paid pennies, and they are complaining increasingly that they do not have the means to satisfy the basic necessities of life. They are not living what Mr. Lauzon calls the high life, and I want you to know that.
The Chair: Thank you, sir.
Senator Fraser: Mr. Fineberg, welcome to the committee. I am interested in your comments about the grievance system and, ultimately, Federal Court cases. How many prisoners would you hazard a guess actually go to Federal Court?
Mr. Fineberg: I could not tell you. I can tell you that there was a time when some federal prisoners viewed this as a hobby. They liked to litigate. It gave them an opportunity to make their voices heard. It put them on a level playing field with Correctional Services and the parole board. Then the rules of practice of the Federal Court changed so that now costs can be awarded and will be awarded against prisoners, and that really put out the fire. That dampened their enthusiasm fast, because their pay is tiny and they try to stretch that pay so they are able to buy their chips, their chocolate bars and their soap. Once a percentage of that pay is being deducted, they are left with nothing. They are left begging other prisoners. They are left with doing gaff in order to live.
Senator Fraser: Doing what?
Mr. Fineberg: Gaff, illegal activity to make money in prison just in order to be able to live. People do not go to Federal Court very readily. They do not go lightly. If you lose, you pay for it.
May I also mention that in most of the country, Federal Court litigation is not supported by Legal Aid. In most of the country if the prisoner wants to go to Federal Court, he or she has to do it him or herself. It is difficult, especially from prison, as there is no computer and no access to the library.
Senator Fraser: Do prisoners go to other courts or tribunals?
Mr. Fineberg: Occasionally prisoners will go to the superior court of the province, in particular for habeas corpus, because it is not handled by Federal Court except in military cases.
Senator Fraser: This bill is about prisoners going and getting the awards.
Mr. Fineberg: The Canadian Human Rights Tribunal and the Federal Court would be the most likely place to find a prisoner's complaint.
Senator Fraser: How many would go to the Canadian Human Rights Tribunal? I am not asking you for a firm statistical analysis but an answer based on your personal experience. Does this happen once a year, once a week or once a decade?
Mr. Fineberg: No, there is a large prison population. I guess at all times there are at least some cases filed before the Canadian Human Rights Tribunal somewhere in the country. In my own experience, let us say out of 100 prisoners, I know maybe one will have attempted to plead a case at the Canadian Human Rights Tribunal.
Senator Fraser: Can that tribunal award significant sums of money?
Mr. Fineberg: No.
Senator Fraser: It would go back and rule that whoever — Correctional Services or whoever — should be the ones to pay the money, or is that not right?
Mr. Fineberg: No, I am saying the damage awards are not large — not from the Canadian Human Rights Tribunal.
The Chair: What provinces still provide Legal Aid?
Mr. Fineberg: In Quebec, Legal Aid will cover a judicial review in Federal Court. It will not cover, however, claims and damages. Legal Aid takes the view in Quebec that it is not there to help anyone make money; it is there to defend people who are dragged into court and do not have the means to defend themselves.
There is no civil litigation done on a Legal Aid basis in Quebec. In Ontario, it is possible. I think Ontario might be the only province in which the Legal Aid system will assist a prisoner in seeking damages in Federal Court.
[Translation]
Senator Dagenais: When we talk about rights, I do not tend to exclude obligations. Rights and obligations are part of life. You say that the offender, the prisoner, has a civil status. But does this status help him avoid his responsibilities, which are often of a family nature?
Mr. Fineberg: Not at all.
Senator Dagenais: But you seem to be saying that offenders cannot fulfill their obligations, considering how little money they have.
Mr. Fineberg: The offender has the same civil status and obligations as any other Canadian. The province has mechanisms to impose and strengthen an offender's obligations.
Senator Dagenais: That is because the bill forces the offender to fulfill his obligations, and that is what we want. We can understand that offenders have rights, but despite being in prison, they have families and responsibilities, which they cannot avoid. That is basically the idea behind the bill. You clearly disagree with that. I can understand.
Mr. Fineberg: It is not that I disagree. My association is made up of lawyers, court officers. We feel that everyone should respect their obligations, especially toward their family. Offenders have the same obligations as everyone else. A number of mechanisms are already in place to provide assistance to offenders' families — same as in the case of non- offenders' families. We do not see a need to introduce a second system that is slightly more direct and more rigorous toward offenders than all other Canadians.
Everyone should meet their obligations. The situation would be different if Mr. Lauzon wanted to introduce a bill that applies to everyone. This is another way to collect the money owed to all Canadians. However, that is not what he is doing because he knows he has no jurisdiction. This matter comes under provincial jurisdiction. So he is trying to get at offenders instead. I think that you do not have the required power, but you are creating another system that targets a specific category of Canadians and creates a separate status. I must say that this is a problematic and dangerous situation.
Senator Dagenais: That is your opinion, sir. Thank you very much.
[English]
Senator Jaffer: Thank you for your presentation.
We have had a number of bills in front of us lately that give me concern about what is happening to sentencing principles. I do not know what your opinion is, but I feel this is an additional punishment for a person. The judge has decided what punishment this person will have; their rights have been taken away, they are incarcerated and now we are adding. I am really reflecting on whether we are throwing the sentencing principles out.
Would you consider this bill as being an additional punishment upon on inmate?
Mr. Fineberg: Perhaps the word "punishment" will lose the sympathy of some members for your position. I would call it a "coercive measure." It is an additional coercive measure that is visited upon the prisoner as a function of his sentence, as a result of his conviction.
I agree that it has nothing to do with the ordinary sentencing principles.
Let me give you a fast example. I have a client who is a member of the chamber of commerce. He is an outstanding citizen, very involved in his church, does charity work and is a businessman. He became jealous and tried to break up an affair his wife was having. He got into a fight with the other man. The other man fell down, hit his head and died.
My client, a respectable businessman, receives a 12-year sentence for manslaughter. Fine. In addition to this, though, this bill says he ought to be treated differently from other Canadians. He should not have the same simple status; he should not be handled in the same way by the law where his creditors are concerned. I do not understand why this individual, because he got into a scuffle with disastrous consequences, should not have the same civil status, the same opportunity and the same rights as the rest of us.
Senator Jaffer: You spoke about the Charter of Rights and Freedoms and you spoke about section 15. I want to ask a question on the Charter, section 11(h), which guarantees the rights of a person finally found guilty and punished for an offence not to be tried and punished for it again. That is where I am coming from when I talk about sentencing principles.
What will happen to section 11(h)? Does it affect that section?
Mr. Fineberg: I would not think so. I think section 11(h) refers to a new measure that arrives after the sentencing. In this case, this will arrive at the same moment as the sentencing. Section 11(h) is being used in the constitutional challenge with respect to the retrospective abolition of accelerated parole review, because that is something that arrived after the sentencing was imposed in certain cases, and then was applied retrospectively to those people previously sentenced.
I do not think section 11(h) will have application here.
Senator McIntyre: Thank you, Mr. Fineberg, for your presentation. I have been listening to your arguments carefully. It is true that one could invite a court of law to review certain sections of the Charter of Rights and Freedoms, such as section 15, as you have indicated, which prohibits discriminatory measures based on membership in a disadvantaged group, and section 12, which is cruel and unusual punishment. Then again, do you think that the court could throw those arguments out the window by invoking the notwithstanding clause pursuant to section 1 of the Charter?
What are your thoughts on this?
Mr. Fineberg: For a section 1 argument to succeed in saving a piece of legislation that otherwise would be in violation of the Charter, there has to be an important purpose to the legislation. In this case, I would submit on that ground section 1 would not apply. There is no important purpose because the purpose is already carried out by the provinces. If there is any purpose at all here, it appears to me to be politically motivated. It appears to me to be an attack that would find sympathy, I suppose, with a large portion of the public, but not because it is something that is needed. It is redundant. As long as it is redundant, I do not think section 1 would protect it.
Senator McIntyre: If one were to make a Charter argument, the only section that one could raise, according to you, would be section 15.
Mr. Fineberg: As far as I see. Section 12 is very difficult to argue. The courts are very reluctant to evaluate legislation on the basis of section 12. I do not think it would apply here.
[Translation]
Senator Boisvenu: Good afternoon, Mr. Fineberg. Thank you for your brief. A public idea is becoming increasingly disturbing. I am talking about the notion whereby a murderer has the same rights as an honest citizen. You are right when you say in your presentation that the rights of criminals have made tremendous progress over the past 30 years, often to the detriment of victims' rights.
This bill — like many other bills that have been passed, such as the legislation concerning surcharges — aims to instil in the prison system, in criminals, a level of responsibility that is higher than what I saw when I visited penitentiaries. One out of three criminals participates in rehabilitation programs, and the re-incarceration rate in Canada is almost 70 per cent.
Criminals often have very little willingness to take responsibility for the serious actions they have taken. For instance, a criminal may be awarded a significant amount of money in a law suit, but he still does not pay his alimony or take care of his children at home because the state gives them social assistance. How does the adoption of measures that make criminals take responsibility — even though they are incarcerated — violate offenders' rights? How can this be interpreted as an additional sentence when all we are doing is trying to make the criminal take responsibility for his family, while knowing that he does not take much responsibility for his victim?
Mr. Fineberg: I am talking about holding prisoners accountable. Correctional service is trying to make offenders take responsibility, not by forcing, but by encouraging them to make the right decisions, to do good things for the right reasons. That is the objective of the correctional plan. That would no longer be possible. The offender could no longer make the right decision. The family would never know that the offender wanted to fulfill his obligations toward them, as the law would get involved and simply transfer the money.
Senator Boisvenu: The re-incarceration rate is over 70 per cent, and you think that holding criminals accountable in the current system is a successful initiative.
Mr. Fineberg: Obviously, the success is partial. As for the figures, all sorts are available. As you know, figures can be established according to the percentage of offenders who remain outside penitentiaries for two years, five years or ten years. You can get whatever figures you want. However, the success is obviously partial.
That does not mean that correctional service should give up on the effort to rehabilitate offenders, instil a responsible attitude in them, and should rely on a legal mechanism instead. Correctional service has a double mandate. On the one hand, it is supposed to incarcerate people in order to protect society, but, on the other hand, it is also supposed to rehabilitate offenders and change their habits to protect society. That is the goal of all correctional service programs. When offenders work — although this is not paid work, according to the law — the idea is to teach them how to work once they are free. When prisoners meet with a psychologist, a criminologist or a parole officer to discuss their past and their future, the idea is to instil in them a new understanding, a new attitude toward their situation and their obligations. That is the objective of the correctional plan.
That was the aim of Bill C-10. Before Bill C-10 was passed, offenders had no obligation to fulfill their civil duties. But since then, the obligation has been established. If offenders refuse to benefit from it, they will suffer the consequences and will eventually understand. That is what correctional service wants.
[English]
Senator Wallace: Mr. Fineberg, you spoke about the social policy around the bill and that the result of the bill is that federal prisoners would not be treated in a way equal to as to how other Canadians are treated. In other words, money that would otherwise be payable to them as a result of their civil action or a tribunal decision will be paid to satisfy other obligations, such as spousal or child support, restitution orders and so on. Monies that would otherwise be payable to the prisoner will go to pay these other obligations and take it out of the hands of the prisoner. You say that by doing that, they are not being treated equally with other Canadians.
Would you not agree that when other monies are owing by the federal government to Canadians who are not prisoners, for example from the CRA, Revenue Canada, a refund is owing, that those monies can be directed and obtained for the direct benefit of those to whom the person the money would be paid had obligations?
Mr. Fineberg: I would agree that a legislator is able to create various mechanisms for redirecting money to satisfy civil debts and that prisoners should be subject to those obligations the same as other Canadians. In the example you cite, the individual who should have received money from the federal government might be a prisoner, and he would be subject to the kind of seizure that you are describing. We have no problem with that. What we object to is that a special scheme be created only for the Canadian prison population as if it deserves to be treated differently because it was convicted. In the case of prisoners, we cannot rely on the ordinary mechanisms. Why? Because they were convicted.
Take the example not of the spousal obligation but an ordinary civil creditor. Let us say I sue you and I win. You owe me that money. If I want that money, I have to take steps, and you may not be disposed to pay me immediately. Maybe you will find it more convenient to pay me in six months. Maybe you have other needs for that money. Arrangements are permitted under the law. There are steps I can take, and there are steps you can take. A prisoner should be able to take the same steps vis-à-vis a civil creditor. It should be the same.
Senator Wallace: Is the result of it not the same, whether it is under Bill C-350 or in the example I gave you, where monies that would have been payable to an individual — a non-prisoner — by Revenue Canada ends up being directed to some other payee as a result of the same process? It is the same result. It is taken out of the hands of the debtor, and it is applied to creditors in the case of Bill C-350 or in the example I gave with monies that would be owing from Revenue Canada. It is the same result. That makes me think that your argument is that this is somehow a violation of the civil rights of the prisoner.
It seems to me the conclusion is that it is the process. You have concern with the procedure. It is still the same result. Money that would have been payable to that debtor goes elsewhere because of certain laws and requirements. I do not see the difference.
Mr. Fineberg: In some cases, the result will be the same, and in other cases the result will not. If a prisoner's neighbour sues him in a property dispute and the neighbour is successful, the prisoner's money will be directed, as soon as it is awarded by the Canadian Human Rights Tribunal. It will be directed, and that would not be the case if the prisoner were living outside. It would not happen in that way. Sometimes the result would be the same and sometimes it will not. The result should always be the same and the procedure should be the same.
The kind of mechanism being proposed by Mr. Lauzon is not being proposed for the rest of society.
Senator Wallace: Well, it could not be proposed for the rest of society because they are not prisoners. What is proposed for the rest of society is, if the federal government owes you money, you may find through legal process that money will be directed elsewhere than to you. It may be to your spouse, it may be to support your children, and that can happen outside of someone being a prisoner. To me, I see the same conclusion, the difference being one of process. The result is the same.
Mr. Fineberg: Take a member of free society who submits a case to the Canadian Human Rights Tribunal and is successful, receives money but also had a civil debt. Let us say he was sued successfully and he has not yet paid his creditor. The money is not transferred because he is not a prisoner.
Senator Wallace: I understand your point.
The Chair: You can agree to disagree. We are into a second round now, and I have Senator Fraser on my list.
Senator Fraser: Mr. Fineberg, as I understand it, you are telling us that Mr. Lauzon's bill is based on an erroneous assumption. He told us, more than once, as I recall, that there are many cases of prisoners coming into what is, in prison terms, a significant amount of money. You are saying that is not true.
Mr. Fineberg: Not in my experience. I do not claim to have figures.
Senator Fraser: The Commissioner of the Correctional Service said they had found a grand total of five cases over a period of six years, I believe, and those five cases, as far as they could recall, included total awards of $100,000, which is $20,000 each. In prison terms, that may be a lot of money, but it is not wild riches. As you point out, it gets sent away to the savings account anyway.
Mr. Fineberg: If you will permit me, that is an important point. If there are awards, the awards go directly into a savings account. The prisoner is allowed to transfer a total of $500 to his spending account per year. In a year, a prisoner can take $500 from his savings account and be able to use it for what they call "canteen."
Senator Fraser: If I may put a devil's advocate hat on here, what is wrong, therefore? Since so few people, in the calculations of the Correctional Service, will be expected, what is wrong with such a system? Say for some reason a prisoner comes into great lashings of money. Maybe it was a case launched before he ever found himself in prison. The judgment comes in and let us say he gets half a million dollars. I think I agree with you, but I would like to hear you say why it is not appropriate to have an automatic system kick in that says: That person is in prison, cannot use the money anyway, but there are legitimate people out there who have a claim on that person's money, and we have to have a system that can ensure they get it.
Why should that not be the case?
Mr. Fineberg: Because there will not be an automatic transfer in the case of an ordinary citizen, of a free citizen. That is why.
Senator Fraser: It is just that simple?
Mr. Fineberg: It is. Every province has its maintenance and enforcement branch. When spousal orders are made, normally they include a clause that stipulates that monies ordered will go to maintenance and enforcement. They take care of it for the individual. There is a mechanism in every province for doing this, so there is no need to create another mechanism which appears to be more direct and more arbitrary than in the ordinary case.
Senator Fraser: Thank you.
[Translation]
Senator Dagenais: Mr. Fineberg, you talked about legislation from various provinces. You know that, if an individual is incarcerated following a DUI conviction, and someone was hurt, killed or disabled, that individual still receives money from the Société d'assurance-automobile every month, even if they are incarcerated. I assumed that you agreed that this money could be used to meet his family's needs.
Mr. Fineberg: Yes, and there are rules for that.
Senator Dagenais: And you do not think that this bill can improve those rules?
Mr. Fineberg: Not when it comes to offenders, as a separate category.
Senator Dagenais: Thank you, Mr. Fineberg.
[English]
The Chair: Thank you, Mr. Fineberg, for appearing this evening and outlining the views of your association with respect to Bill C-350.
Mr. Fineberg: Thank you for the opportunity.
The Chair: It is much appreciated.
Before we adjourn, just a reminder that tomorrow we meet at 10:30 in this room, continuing with Bill C-350. We will have the Correctional Investigator, a representative from Elizabeth Fry and representatives from various victims' organizations. Next week, there is a strong possibility that we will have extended hours on Wednesday and Thursday to deal with the witness protection legislation that we just received in the Senate. The steering committee has agreed to these hours, if needed: Wednesday, from 3 p.m. to 8:30, so that will be a bit of a marathon, and Thursday from 10:30 a.m. until 3 to the afternoon. We will be sitting while the Senate is in session. That is a real possibility.
Senator Fraser: If needed.
The Chair: If needed, I stressed that. You are re-stressing it, yes. That concludes the meeting. Thank you very much.
(The committee adjourned.)