Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25, Evidence - February 5, 2015
OTTAWA, Thursday, February 5, 2015
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims), met this day at 10:29 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day. 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. We are here today to continue our deliberations on Bill C-479, An Act to amend the Corrections and Conditional Release Act (fairness for victims).
Bill C-479 was originally introduced in the House of Commons in February 2013 by Mr. David Sweet, Member of Parliament for Ancaster—Dundas—Flamborough—Westdale in Ontario. The bill was reinstated by the house at the start of the current session.
This is our second meeting on the legislation. As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the sen.parl.gc.ca website. You can find more information on the schedule of witnesses on the website under "Senate Committees."
For our first panel this morning, please welcome, as individuals, Eric Purtzki, who is a lawyer, and Mary Campbell, who has appeared before us on other legislation in a different role; and from St. Leonard's Society of Canada, Rick Sauvé, Peer Mentor.
Eric Purtzki, Lawyer, as an individual: Members of the committee, it's my pleasure to appear before you today to comment on Bill C-479. I'm here to voice my concerns about this bill, and in particular, in my respectful view, there are considerable constitutional problems.
I will confine my comments this morning to the parole ineligibility aspect of this bill. That's the four-year, five-year ineligibility period following refusal of parole or revocation of parole. Because the bill deals with ineligibility, there are always serious constitutional considerations that arise when we deal with questions of ineligibility.
Now the courts have been clear that there is no constitutional right to be actually granted parole, but it's in that longer waiting time where it doesn't matter what the offender does or says, he is stuck behind bars because he can't avail himself to the Parole Board.
Now, given that it deals with ineligibility, the way that this ineligibility is brought into force is effectively universal. It applies universally to all offenders convicted of violent offences who are subject to revocation and refusal, and it is automatic.
I say that those three elements are toxic from a constitutional perspective, and that's on a prospective basis under section 7 of the Charter, given the purpose of the bill. So I would say the bill goes too far in that respect, and it is justiciable under section 7 of the Charter. More particularly, I say there are serious concerns on a more technical basis with respect to the retroactivity and "retrospectivity" of the bill, and that arises in two senses. It is retrospective from a constitutional consideration, and it is the main question when we are dealing with the question of retrospectivity, whether or not it is punishment because it deals with length and periods of parole ineligibility, and it is universal and automatic in its application.
This is not a discretionary decision on the part of the board. This is not a case where if we want to get the Clifford Olsons of the world who have no chance of parole and who are participating in the Parole Board to compound the suffering of victims, I don't think it's offensive of anybody to make delayed parole for that individual; but for all individuals across the board, it creates big problems.
Those are my opening comments to the committee this morning.
Mary Campbell, as an individual: Thank you, Mr. Chair. It's a pleasure to be back again. I will also keep my comments very brief. I've distributed three pages that have more points and a couple of pages of graphics, which I hope might be useful.
I think that this scheme, as Mr. Purtzki has said, about delayed reviews is problematic, and I will highlight a couple of different reasons. I appreciate that the legislation says they must be reviewed within five years; so it's not that it will automatically go to five, or similarly for detention reviews on stat release within four years. My concern is that human beings and bureaucracies tend to default to the most time available to them. And that's not a criticism of anyone; we all do it. If we are told we have two weeks to do something, we will get it done within two weeks. If we are told we have five weeks, chances are pretty good we will make use of that extra time.
I come at this from that rather pessimistic approach, and I appreciate there are others who come at it from a more optimistic approach and will say that, no, the reviews can happen much sooner than that. I hope at some point people will prove me wrong.
It would be useful to have data for the current system to see now when people are denied how soon within the two-year period are they reviewed. Of course, that data is just not available, but that would help us out if we had it.
The reason why my pessimism turns into deep concern is because of the impact on the system. I'm very concerned that this bill will in fact push many more people to release at a stat release point, two thirds, and indeed to warrant expiry at the end of a sentence. We are already seeing a great increase in the number of people going out on stat release as opposed to parole.
I was speaking in the Pacific region recently, and 61 per cent of the stat releases there had no contact with the Parole Board previously. They had never been near the Parole Board, for whatever reason. I fear this bill will exacerbate that, and in conjunction with the stat release reviews or the detention reviews there will be more people going out at warrant expiry.
That causes obviously huge population pressures inside and resource pressures, and there is no costing done for a private member's bill. It also results in less public safety because we know that if a person goes out with less supervision and support, they do worse on release. Research shows that. I am concerned about that.
To finish off, because the government has an outstanding commitment to abolish statutory release, that is waiting in the wings. It highlights one of the problems when we have ad hoc bills because there is not a knitting together of all the measures.
This commitment is out there. I have no idea what the government's intentions are. They may move to abolish stat, as promised; they may simply restrict it. My question is, then, why make some pretty fundamental changes to stat now, given that that legislation may be coming?
For all those reasons I'm quite concerned about clauses 2 and 3. I'm happy to address the other issues about victims and waiver of hearings.
Rick Sauvé, Peer Mentor, St. Leonard's Society of Canada: I'm happy to be here today. When I read over this legislation, I think I look at it through a unique set of lenses in that I have served many years inside prisons. I have been on parole since 1995, serving my time in the community, still serving my sentence in the community on full parole.
I have been going back into the institutions in the Ontario region since the end of 1998. I've assisted at over 400 parole hearings during that time, worked with hundreds of men and several women that have served sentences inside the institution, and continue to go in. There is a real loss of hope for so many individuals that are inside.
One of things that I've discovered in all the parole hearings that I've done is some of the most important information when you're considering who is safe to put back into the community comes out a parole hearings. My view is instead of limiting access to the Parole Board, that's where some of the best information comes from. You can't rely solely on file information generated within the prison system because quite often a lot of it is flawed. I had lots of flawed files in my own case, and to try and get that information corrected is almost impossible. They just do not take it off.
Many of the men I've worked with over the years have a hard time getting down to lower security institutions, so when it comes time for them to apply for parole, most often they are asked to waive their hearings. They are just told, "Waive your hearing, do some programming and then you can move forward."
Recently I did a parole hearing for a man who is 82 years old. He was turned down by the Parole Board because he had not completed some of his programming. I look at him and I don't know whether he'll survive. I don't think he is a risk to go back to the community, but I don't think he will live to his next parole hearing if this was to be passed.
Thank you.
The Chair: Thank you all. We will move to the question element of the hearing, and I will ask the deputy chair of the committee, Senator Baker, to lead off.
Senator Baker: Thank you to the three presenters. These were excellent presentations as they apply to the legislation before us. My two questions are for Mr. Eric Purtzki.
The reason, Mr. Purtzki, that you were invited to appear before the committee is that you became famous in legal circles in Canada recently in that you represented Mr. Whaling in the Supreme Court of Canada decision of Canada (Attorney General) v. Whaling. The accelerated early parole provisions of the act that were struck down as being unconstitutional by the Supreme Court of Canada were passed by this committee in March of 2011. Some of the same committee members are sitting here. The minister appeared at that time together with Ms. Campbell, in a different position than she is in, and an argument took place between Senator Joyal and the minister. Senator Joyal was arguing that the provisions violated sections 11(i) and 11(h) of the Charter for the very reasons that subsequently the Supreme Court of Canada brought down.
What attracted my attention was we passed the bill in March of 2011. In September of 2011, you were before the Supreme Court of British Columbia on this question of constitutionality. In other words, you had presented your arguments, received the responses from the Crown and so on. So it was very quickly done. You went through all stages — Superior Court, Court of Appeal and Supreme Court of Canada — so you have to be congratulated.
In the comment to WestlawCarswell's account of this judgment, a famous University of Saskatchewan law professor, Tim Quigley, made this statement, and I want to ask if you agree with it. He said that parole eligibility, other than that contemplated at the sentencing hearing itself, is now covered by this protection, and it is clear that retrospective legislation without an individualized consideration of the offender and procedural protections will always offend. Do you agree?
Mr. Purtzki: I do agree with that. When we look at this bill it says "within," but one thing that is certain is that it is longer than two years. It used to be two; now it's more. It does not matter if it's a week longer. It is still longer from a parole ineligibility perspective. That's done, as Professor Quigley points out, and the big problem is it's automatic and universal in its application. There is no discretionary decision.
Like I said in my initial comments, that was the key constitutional defect in the Whaling case, and that was fatal, ultimately, for a number of reasons. That's based on the test that the Supreme Court of Canada ultimately devised which was how do you determine someone's punishment? Well, it is not punishment if the board is making a discretionary decision, like I indicated in my comments at the outset, saying, "You, sir, have no chance of parole. The victims are present. You are causing nothing but grief for these people. We, in our considered opinion, are now making an order that you can't come back for X number of years." Such a provision is unlikely to meet the punishment test for the reasons outlined by Professor Quigley. This legislation, of course, is not that.
Senator Baker: Let's assume that it is unconstitutional. There is another question that the court must then consider: Is it saved under the section 1 of the Charter? In other words, the violation is acceptable in a free and democratic society because the majority of the people are . . .
That judgment as to whether or not it's saved by section 1 is, what was the intent in making this retrospective?
Did you ever have a look at the amendment passed in the House of Commons and the person who proposed it? Did you ever see the wording of that, of why this was brought in, the wording of the mover of the motion who brought in the amendment to make it retrospective?
Mr. Purtzki: Yes, I did.
Senator Baker: This is not a Government of Canada bill. This is a private member's bill. She says this:
This clause clarifies that Bill C-479 will affect the following classes of federal offenders: . . . offenders currently serving a sentence after the first scheduled parole or detention review following the coming into force of this particular bill.
The reason for this amendment is that currently, as the bill was drafted, it would only apply to offenders who had not yet been sentenced at the time the law was changed, and in fact we wouldn't see the fruits of this particular bill until many years into the future.
Does that reason save it under the section 1 of the Charter?
Mr. Purtzki: No, it does not because it is not a constitutional or legal reason. It's a policy reason.
One of the main things that the court is looking at when looking at a section 1 justification is could the purpose be achieved in a less intrusive way? That gets back to the automatic and universal aspect of this bill. If the court would say a less intrusive way would be simply to make it discretionary, that's a less intrusive way.
Senator Baker: Proactive instead of retrospective.
Mr. Sauvé: And, in addition, I note that this bill is delayed in its application anyway, so the benefit of making it discretionary is it can be enacted tomorrow. Parliament seems to be recognizing there is an importance in delaying it somewhat. Fortunately, I think it just falls between two stools.
[Translation]
Senator Boisvenu: Thank you very much for being here this morning. You are showing us the other side of the coin, that of criminals' rights. What might seem excessive to you may seem like a fairer and more equitable bill to the victims. It is often a question of perspective, and I respect your point of view, although I do not share it.
Ms. Campbell, you said that the government's intention was to put an end to statutory release. However, the principle that we are taking on is not necessarily putting an end to statutory release, but rather to automatic release. Release was granted automatically in one-sixth of cases related to economic crimes, and it will be done for statutory release because that is a privilege, and privileges need to be earned. People will still be able to be released at one-third or half of their sentence, as long as they have made an effort to deserve early release during their rehabilitation.
In our prison system, being released before the end of the sentence is a privilege, not a right. Would you not agree that being automatically eligible for privileges without making an effort contradicts the message we are sending to criminals by saying that, although they did not make an effort, they can still have the same rights as someone who has and who is released automatically?
[English]
Ms. Campbell: Yes, I understand your concern about that. The government commitment, which dates from 2006 if I'm not mistaken, actually was to abolish statutory release at two thirds. I appreciate that that may not be what transpires, but I think the word "abolish" was used.
I certainly agree with you that we all share the goal that when people are released they've made whatever efforts are necessary to facilitate a safe reintegration. I think that sometimes people do perceive statutory release at two thirds as something you get just because you've reached the two-thirds point. It is a presumptive release, and the reason for it is that at that point everyone in the system basically takes a deep breath and says, "Look, the end of the sentence is now near. This person is going to be released, and what do we do to manage that release?" Maybe they've never been to the Parole Board, maybe they've been and they've been denied, or they're been paroled and didn't succeed, but we are now at the two-third's point and he or she is going to go out, so how do we manage that? That's the philosophy behind stat release.
The research is clear: A supervised release is better than release cold at two thirds. I personally don't want someone coming out of Millhaven Penitentiary, maximum security, and moving into my building. That's not a safe way to release someone.
I think you have competing views of what is happening at two thirds. The detention power is there, and the board can exercise it if the person does seem to present a risk.
[Translation]
Senator Boisvenu: It is a matter of philosophy. You say, "If we have made every effort." Basically, the philosophy that we are modifying is for the criminal to make every effort, because it is not up to the prison system to make an effort, but up to the criminal.
Mr. Purtzki, in your brief, you state that violent offenders would be subject to much longer ineligibility periods than other offenders, even if they may not pose a risk to the victim or society.
However, if the system considers the offender violent, does that not represent a risk? How can an offender be considered violent and, at the same time, not present a risk to society?
[English]
Mr. Purtzki: I think the important part is to have an assessment of that risk. If an offender is refused parole and needs to take a program, if he takes that program, there needs to be an assessment of the risk that he poses. If offenders are doing as they should be doing within the correctional system, which is lowering their risk of recidivism and developing insight and all the rest of it, the important point I say is let the board review that, then, and make a determination whether he is a risk or not.
[Translation]
Senator Boisvenu: Mr. Purtzki, when we talk about a violent offender, the very principle of using the word "violent" indicates that the offender presents a risk. That was the context for introducing this bill. If you are considered violent and at risk, the period for you to have the privilege of being released will be longer so that you can spend more time in a program to limit that risk. That is the intent of the bill.
[English]
Mr. Purtzki: Violence does present a special risk and there are special criminogenic factors, like all crimes, but the Correctional Service is designed to address those risks. An offender can take programs and address those risks to the satisfaction of the Correctional Service, and the Correctional Service is not the babe in the woods here; they know exactly how to assess risk. They're entrusted with protecting society. So if the Correctional Service is saying, "We think this offender is fit for release," he can be released. There's nothing wrong, in my respectful view, with allowing that offender to make his case before the board with the support of the Correctional Service.
Senator Boisvenu: Even if he's still violent?
The Chair: Senator, we'll have to move on to Senator Joyal.
Senator Joyal: Thank you for your contribution. Mr. Purtzki, I would like to come back to the point that Senator Baker raised in relation to retrospectivity. As Senator Baker mentioned, in 2011 the minister testified here in relation to amendments to the Abolition of Early Parole Act that were at the core of the Whaling decision. I expressed doubt that the bill, as stated, was constitutional. I clearly stated to the minister at that time that I didn't think the bill was constitutional. The minister alleged that he had received legal opinion that it was and he asked us to proceed with the bill.
The majority on this committee voted for the bill and, of course, last June the Whaling decision confirmed that the bill was not constitutional because it has a retroactivity impact that was against sections 11(h) and 11(i) of the Charter.
Yesterday I raised the same concern and the chair pointed out paragraph 63 of the Whaling decision. Do you have the decision with you?
Mr. Purtzki: I don't have it.
Senator Joyal: It was set out as an opening for the answer to the allegation that a clause of the bill was added through an amendment from the government by the parliamentary secretary to the Minister of Public Safety in the House of Commons, which is now clause 7(3) of the bill. Clearly, in my opinion, it expressed retroactivity that in fact that clause would be saved by paragraph 63 of the Whaling decision. With all due respect, that's the inference that the chair pointed out by quoting section 63 yesterday. What is your reading of paragraph 63 of the Whaling decision in relation to clause 7(3) of the bill?
Mr. Purtzki: That's where the Supreme Court of Canada is giving guidance on whether something is going to be punishment or not. Like I say, the issue in respect of paragraph 63 is the Supreme Court of Canada saying if you're going to have delayed parole, the decision to delay parole should be made part of a discretionary decision. Will there be a hearing on that issue?
I say that when there is a refusal of parole, or revocation of parole, the automatic effect of that is now you're waiting longer than you were before. That's the automatic effect. Like I say, if Parliament had said, yes, we're going to give the board that additional power to make the order — that is the delayed period of parole — for you, offender, they're going to have a procedural protection on that so that you can make submissions to the board on the issue of whether there should be a longer waiting period in light of a victim's concerns. That's what the Supreme Court of Canada is talking about there: discretionary determination that is contained within procedural protection.
For example, if the board tells an offender you have no chance of release, you are doing this to compound the suffering of victims, either on purpose or in effect, then the offender can appeal that finding and all the rest of it. That's what we were talking about in relation to procedural protections. But we're talking about the automatic effect of the bill. If I'm an offender and I get refused parole, I'm waiting longer than two. That's what we mean when we talk about automatic and that's the landscape that the Supreme Court of Canada set up.
It's important to remember that the way paragraph 63 is directed, in Whaling they said that the extension of parole ineligibility, the way it had been done under the Abolition of Early Parole Act, was on the extreme end of the spectrum. That was the clearest case, and then they set this other end of the spectrum, which they call Cunningham; that is not punishment. The Supreme Court of Canada didn't say, "This is the only time we're going to do it, folks." There is a middle range that is also unconstitutional. It might not be as extreme as the Whaling decision, but at least it is in the middle, if not closer to. When we're talking about unconstitutionality, there is a field to play with there, and there is a lot more unconstitutional distance to go.
Senator Joyal: I will read the last section of paragraph 63, and it is Justice Wagner speaking:
As I mentioned above, the dominant consideration will be the extent to which the offender's settled expectation of liberty has been thwarted. A change that directly results in an extension of the period of incarceration without regard to the offender's individual circumstances and without procedural safeguards in the assessment process will clearly violate s. 11(h).
It seems to me that the automatic retroactivity of clause 7(3) of the bill is directly expressing that situation. There is immediately an extension of the incarceration period without regard to whatever might be the circumstances that might bring the person back in front of the Parole Board.
Mr. Purtzki: Precisely.
Senator Joyal: When an accused is in front of the court, the consideration of his or her eligibility or non-eligibility to parole is some consideration in the plea that the person might want to make. Changing that retroactively, in my opinion, is an infringement of sections 11(i) and (h) of the Charter, and I don't think it gets saved by paragraph 63, as I read it and understand it.
Mr. Purtzki: I agree with you.
Senator Plett: I have a couple of comments and then a question.
Mr. Purtzki, you said in your remarks that if we wanted to deal with the Clifford Olsons, we should be dealing with the Clifford Olsons of the world, and that this doesn't do this.
This bill specifically, as the sponsor said a number of times yesterday, is to deal with the most heinous of crimes. The Munro brothers shot Michael Sweet, police officer, while he was begging for his life. They taunted him and laughed at him and let him bleed to death. I suspect the widow of Michael Sweet and his three children would say that to them that is almost as serious a crime as Clifford Olsen committed. I'm not sure why you would use Clifford Olsen. This is to deal with the most heinous of crimes.
Mr. Sauvé, you say that you're out on parole. I don't know what your crime was, whether it was a heinous crime like this. Maybe you want to share that. I'm not asking you to, but you might want to.
Ms. Campbell, in your brief, you have listed a number of things that you intended to list in the negative. Somehow, I find most of them in the positive. When you talk about defaulting to maximum time, I think that's great. This bill isn't supposed to help offenders. This is supposed to be speaking to the benefit of victims, not the offender. I quite frankly would like to see them default to the maximum time every opportunity that they can.
Ms. Campbell, you state in your concerns that the net effect would be serious increase in the penitentiary population, with less public safety. When people are in the penitentiary, how is that less public safety? I feel much safer with Mr. Munro behind bars. I wouldn't want him living in my building, either, even if he was out on parole.
Next, you say that transcripts are simply not done and very unlikely to be done in the foreseeable future. A law is a law is a law. I would hope the Parole Board would listen to the law, and if they are by law required to do a transcript, they would do that.
Ms. Campbell: Obviously, there are different aspects to public safety. The first comment I would make is that we're always concerned about inside the penitentiaries, so there is an issue of public safety in terms of the people who work in the penitentiaries, and I know you're sensitive to that. The more they have to work in an environment where people have nothing to lose, obviously that environment becomes more dangerous and it is more of a risk for those people.
Yes, incapacitation is a very valid sentencing goal. This person needs to be taken out of commission for some period of time. But for most people, unless they have a life sentence, they will be released, so you start to look at what is the best set of circumstances to promote public safety. For about 300 people a year, that's warrant expiry. They do serve every day in the penitentiary.
The problem is you reference very serious cases, but because this is automatic, as Mr. Purtzki has outlined, everyone gets caught up in that net, whether they are a big or small fish, and there is no distinction between them. There are people who have committed very serious crimes, who have killed, and go on to lead very law-abiding lives.
That's a bit of an explanation as to why I have said that it's less public safety if ultimately the person comes out cold.
Regarding transcripts, my concern about that is the bill simply says if they are "available." I really dislike raising people's hopes falsely. Transcripts are not done right now. There are no resources for transcripts. I don't think I will see transcripts done in my lifetime because the board has so many resource pressures. I don't see this one as being a priority, and it raises a false expectation.
Senator Plett: Mr. Purtzki, under this bill, does the Parole Board have the authority to set a new hearing date two years later?
Mr. Purtzki: They do, but it's not clear from the bill.
Senator Plett: They have that authority.
Mr. Purtzki: There is no basis upon which they would grant that authority. What are the criteria?
Senator Plett: It's not my question. My question is: Do they have the authority?
Mr. Purtzki: It's not clear from the bill, no. It says within five years.
Senator Plett: I'm sorry you can't answer it. You seem to be clear that it's not constitutional and that's a very basic question. I'm not a lawyer and I think they have that, so I'm surprised you don't have a clear answer.
Mr. Purtzki: My answer, though, is that the offender has been refused for parole. He has to wait longer than two years. That's the point of it. It's parole ineligibility.
Senator Batters: Thank you all for being here.
Ms. Campbell, you were before our committee last fall on another private member's bill. At that point, you were indicating to us you retired in April 2013 as the Director General in the Corrections and Criminal Justice Directorate at Public Safety Canada. Correct?
Ms. Campbell: Yes.
Senator Batters: When you appeared before this committee during deliberations on that private member's bill, it was Bill C-483, and it was MP David MacKenzie's bill on escorted temporary absences. At that time you indicated: "I regrettably do not have quite the same view of the Parole Boards in terms of accountability or transparency at this point as others do." Could you tell us more about that?
Ms. Campbell: That's an opinion based on my own experience with the board, particularly during the last few years, so I appreciate other people may have had different experiences with the board and may have different opinions. Unfortunately, my experience in the past two or three years has been, first of all, that the board is increasingly denying and denying often on grounds that I think are, in my view, outside the law. So I've been very disappointed not just with the decisions but often with the manner in which they are expressed.
Senator Batters: Could you talk more about the accountability and transparency you referred to before?
Ms. Campbell: I don't want to exceed the time available, but I think that we're seeing decisions that simply refer to matters that are outside the scope of the criteria for parole. I have also come to have a lot of concerns about the accountability of the appeal mechanism within the Parole Board. Again, these are my views, based on my experience. They are subject to debate.
I had the experience within the past few years — it was a negative decision — where a matter went to the appeal division, and the appeal division's response was, "We support the lower decision because we're part of the management team and we passed this policy, so we stick with the lower decision." That's not an independent appeal division, in my view. It is issues like that that have really led me to kind of a negative viewpoint at this stage.
Senator Batters: Do you feel that victims of crime are adequately represented in the Parole Board process currently?
Ms. Campbell: I'm guided by what victims themselves are saying, and I think their message is that things have improved, but they're not great yet. I would tend to agree with that. There are efforts in here to improve it. There would be other things that I would tend to do to improve that experience and try to address the real concerns as opposed to things that I don't think will make a difference.
Senator Batters: Also, you talked about our government's outstanding commitment to abolish statutory release and you were wondering why these changes would be proposed to, in a certain way, statutory release with this particular bill.
I know that you will be well aware of this, but just in case anyone paying attention to this committee is not aware: This is a Conservative private member's bill we're dealing with, not a government bill. This is a private member who has sat for a considerable number of years, heard concerns from his constituents, I'm sure, and stakeholders of different sorts that he's met with over the years, and this is the bill that he's elected to bring forward. It isn't a government response.
[Translation]
Senator Dagenais: Mr. Sauvé, I would like to congratulate you. You are an example of rehabilitation, and I think there should be more of you. However, it is important to remember that people end up in prison because they have committed a crime. When there is a crime, there is a victim. Since its inception, the Parole Board of Canada's mission has been to help people in prison straighten out their lives, and we cannot be against that. However, Bill C-479 aims to bring procedural fairness to victims.
Mr. Purtzki, the goal of the bill is to encourage victim participation. I think victims have a right to be considered by the Canadian correctional system. The right of victims and their families needs to be improved. I have difficulty understanding why you do not support this bill.
[English]
Mr. Purtzki: I'm not against that. My only point is that —
[Translation]
Senator Dagenais: That is not the impression you give.
[English]
Mr. Purtzki: I am not against that. It's important that victims are involved. Victims are involved, but in many instances victims are not present at the Parole Board. Sometimes victims are supportive of release. Many programs are available in the federal correctional system. Correctional Service Canada actually has ways to remediate between victims and offenders throughout their sentence, if victims are open to that. In many instances, victims are open to having the offender released on parole. It's not simply that they don't want to see them heard by the board. In many instances, they sometimes encourage it.
The Chair: With respect, some would say this is giving discretion to prevent re-victimization of victims by essentially extending the date for the persons who have already been denied early release in terms of their reapplication for early release. It's discretion and not an obligation, and for reasons that I think are very legitimate. What's your response to that?
Mr. Purtzki: It's important to clarify what is the discretion here. There is no discretion here to say, "You, sir, offender, are re-victimizing these victims; therefore, I'm going to delay parole, or I'm not going to give you an opportunity to come back for some time." As I say, that is a discretionary determination and that is unlikely to be met with disapproval in the courts.
But what I'm talking about is the automatic effect. Once you're refused parole, there is that automatic waiting time, longer than the initial two years. So it's important, in my respectful view, to clarify what kind of discretion we're talking about.
The Chair: It seems to me the discretion is really extending the date in terms of individuals who have already been denied. But in any event, we should move on.
[Translation]
Senator Dagenais: Mr. Sauvé, could you please tell us why you were in prison for 20 or 25 years?
[English]
Mr. Sauvé: I was convicted of first-degree murder. There were eight of us charged. Six got convicted: two for first-degree murder, four for second-degree murder. None of us killed the individual. Despite that, I served my time inside, and I continue to serve my time in the community. I maintain my innocence, and I'm still working towards getting my conviction overturned. Despite that, I honour the conditions that the Parole Board has put on me. I honour the trust they've put in me by returning me into the community, and I continue to do so.
Senator McIntyre: Thank you all for your presentations. I understand the concern you all have with this bill and one of its components, which is to modify parole and detention review dates, basically giving the Parole Board of Canada the option of increasing the time between parole hearings for violent offenders.
However, as noted by Ms. Campbell in her presentation, the language in the bill is "up to," meaning that the Parole Board has discretionary authority to hold or not hold a subsequent hearing within the four- or five-year period.
On top of that, in my dealings with the Parole Board, they do what is called a paper review. In other words, the Parole Board has a lot of latitude regarding their operations. For example, at one hearing the offender may be denied day parole, and then at a subsequent paper hearing be given day parole. May I have your thoughts on this, please?
Ms. Campbell: It's an important point because at this stage the vast majority of Parole Board decisions on all matters are done through paper reviews. I appreciate people's concerns about hearings and participation, but we're missing a big part of the picture if that's all we focus on.
Hearings are required to be held in certain circumstances. Subsequent to that — for example, if someone has been on day parole and they have been doing well, it may be a paper decision that moves them on to full parole. So I don't think we can lose sight of the importance of the paper reviews and the input that goes on there.
I agree with you entirely. It may be that the board will hear good cases much sooner, and I hope that you prove me wrong in my concern.
The last point I want to make is to also bear in mind that this is the concern about a broad-brush approach. It affects the big fish and the small fish. Only 17 per cent of all offenders have registered victims in their case at this point — 17 per cent of all offenders have registered victims in their case.
In terms of victims who present at parole hearings, it is a tiny fraction of the number of hearings that the board holds per year. Those hearings are very important to that victim, and they are, by and large, in the most serious cases of homicide or sexual assault. I understand that, but I think this goes to Mr. Purtzki's point that we're changing the whole system to deal with a small number of high-end offenders, but it also affects all the low-end offenders as well. We'll have to rely on the board to do more of those hearings for the low-end offenders, if you like.
Senator McIntyre: My understanding in the case of paper review is that it really depends if the offender has followed his correctional plan. If he has, he's out; if he hasn't, he's in.
Ms. Campbell: There has to be some evidence, normally, for a paper review to result in a positive decision. The offender can still make submissions, as can the victim, for a paper review. I think it's important people know that they can do it, but it's all done on paper. There is no hearing. There are no submissions. I think for a lot of them right now it's actually done by one board member.
Senator McInnis: Thank you for being here. I didn't practise constitutional law, thank goodness. I was more corporate-commercial. I am just coming to this Whaling decision thanks to Senator Joyal and Baker yesterday. I've got a lot to catch up on.
I would like to put on the record a bit of paragraph 63 with respect to double punishment:
. . . conditions of a sentence will not be considered punitive if it does not substantially increase the risk of additional incarceration. Indicators of a lower risk of additional incarceration include a process in which individualized decision making focused on the offender's circumstances continues to prevail and procedural rights continue to be guaranteed in the determination of parole eligibility.
A little further on, it says, and this is important:
. . . the replacement of an automatic release system with a discretionary release system was found to be constitutional in Cunningham owing in part to various procedural safeguards . . . .
That to me means that what we're doing appears to be correct.
I want to add on to that because I think the important thing here in the actual cause, the genesis of this bill, is with respect to victims, victims suffering and the trauma they go through, but also we have the fact that the Parole Board will have a greater ability to manage as to when a person comes up for parole. They will have that discretion. To me, that doesn't say that they're going to incarcerate longer. What it says is that they will look at the factual situation. They'll look at the corrections report, the plan that the incarcerated individual has, how they are doing, and will we have a parole now or later. We've heard about victims coming forward time and time again and all the traumatic situations that they have gone through with result to this. To me, this matches beautifully. I know you're saying that the discretion is not discretion but you're actually adding on time, correct?
Mr. Purtzki: I am saying that, and I say that because the board's discretion is the decision to refuse parole. They're saying they're refusing parole, but the board is not setting another time. All the act says is within five years. He would have to wait until the fifth year before he starts complaining about it. It can be any time within that period. I say the problem is if the board said, "Listen, your correctional plan is no good, don't come back in X number of years," there is no method by which that discretion is exercised in this bill.
Senator McInnis: That's the policy of the Parole Board.
Mr. Purtzki: Within this bill, how is that discretion exercised? How do they go from upwards of two to three to four years?
Senator McInnis: I'm saying that the Parole Board and its policy as to how they manage the cases and who gets before them is the policy of Corrections. You can't look at it the other way, that they wouldn't have that policy and their intent would be to keep people in for five years.
Mr. Purtzki: From a parole ineligibility and a constitutional perspective, what matters is it's a longer period of time than two years.
Senator McInnis: We'll agree to disagree.
Senator Frum: Mr. Sauvé, my question follows Senator Boisvenu's line of questioning. If the Parole Board turns down a violent offender who is two thirds through their sentence on the grounds that they are still considered a risk to society, a danger to society, can you help me understand the timeline in terms of the correctional policy or plan that would happen? The objection here seems to be that they are a violent offender so they have already been in jail for some a significant period of time and they are found to still be dangerous. How much more time? That is what Senator Boisvenu was saying. Can you turn that around in 12 months? Can you go from being an assessed risk and then 12 months later have such success in your correctional plan you're no longer — can you tell us what is a typical program and how long does it take?
Mr. Sauvé: Part of the problem a lot of offenders get screened out of programs. When they go in front of the Parole Board, sometimes the Parole Board says, "We think that there is a need for this," and then they go back to the parole officer and back into the review boards and then they will be slotted into a program. I don't know whether there is an ideal time for somebody to turn their life around. The problem is that for some of these people, if they get turned down, they will be getting released at the end of their parole without any supervision, so they'll just be released into the community.
The Chair: We have a couple of minutes left, and I would like to provide an opportunity on both sides of the table for a quick question and succinct responses from the witnesses.
Senator Joyal: Mr. Purtzki, I would like to come back to your statement, and it was also mentioned by Ms. Campbell, in relation to the length of time that is involved in the bill, which is not up to five. The words "up to" are not in the bill. It's "within four", which is a different nuance legally. I went back to the bill when you stated that because I wanted to be sure of the wording. When you're dealing with the freedom and rights of somebody, it is an important concept.
When you stated that the over-breadth of the bill might run counter to section 7 of the Charter, you were brief. Could you explain what you meant legally by the over-breadth of the bill that might run unconstitutional?
Mr. Purtzki: Certainly. Over-breadth looks at simply whether the legislation goes too far, and I think Ms. Campbell talked about that this morning. Her submission to the committee was that it catches everyone, all the little fish and the big fish. That's what over-breadth looks like. Does it go too far in achieving a certain objective? If there are certain offenders where the victims are there and are adamantly opposed and it's creating an awful situation, that should be targeted to those individuals rather than sweeping up everyone else. The sweeping up is what over-breadth looks at.
[Translation]
Senator Boisvenu: I would like to make a correction. Ms. Campbell, you said that the Parole Board of Canada is releasing fewer and fewer individuals. I am going to give you a few statistics. Since 2011, the number of criminals released on day parole or full parole has increased from 5.1 per cent to 12 per cent. In the past five years, last year had the fewest releases. And 2007 was the year in which releases peaked. We have returned to the same level. So your statement that fewer and fewer people are released is not exactly correct.
Mr. Sauvé, there is a myth that needs demystifying. I have visited federal penitentiaries, and I have some difficulty when people say there are not enough programs in the penitentiaries. I visited one class that had one teacher and one student, when the class could have held about 20.
Do you not think that criminals are participating less or have less motivation to participate in certain programs?
[English]
Mr. Sauvé: No, offenders are motivated to participate in programs. Again, a lot of times they are screened out of programs. They look at the time frame before their parole eligibility. My belief is that programs should be available at the earliest possible time because if they take the programs early in their sentence, it starts the process of rightful thinking.
There are way too many people who are screened out of programs. I believe that. When I see people that have committed violent offences, committed murder, and they get screened out of violent programs, I don't understand why that happens, but it does.
The Chair: Thank you very much to all of the witnesses. We appreciate your appearance and your testimony here today.
For our next witness, please welcome Suzanne Brisebois, Director General, Policy, Planning and Operations for the Parole Board of Canada.
Suzanne Brisebois, Director General, Policy, Planning and Operations, Parole Board of Canada: I'm here to speak to how Bill C-479, the proposed "Fairness for Victims Act," would affect the Parole Board of Canada.
As you are likely aware, the Parole Board Canada is an independent administrative tribunal responsible for making decisions on the conditional release of offenders. The board's conditional release decisions are made in accordance with specific criteria set out in the Corrections and Conditional Release Act, or the CCRA. Decisions are based on a thorough and careful assessment of the risk an offender may pose to the public if released under supervision in the community. In every decision, the paramount consideration is public safety.
The proposed CCRA amendments in Bill C-479 would serve to change the legislated review periods for certain types of offenders as well amend certain aspects of the legislation as they pertain to victims.
The bill proposes to increase legislated review periods for offenders convicted of violent offences that is Schedule I, and murder. Specifically, it would increase the mandatory review period after denial of full parole for these offenders from within two years to within five years.
The period within which the board must review a decision after cancellation or termination of full parole would also increase from two years to four years for the first subsequent review, and then five years for any subsequent review.
It is important to note that these changes apply only to legislated parole review dates. Eligible offenders would still be able to apply for parole one year after denial, cancellation or termination.
Finally, it would increase the period within which review of a detention order for a violent offender who caused the death of or serious harm to another person is required from one year to two years.
It should be noted that while the legislation identifies the minimum time frames for scheduling these reviews, the board may conduct a parole or detention review at an earlier time based on the information it receives from CSC. Under Bill C-479, this will not change.
As mentioned, the bill contains a number of additional amendments that are specific to victims. The Parole Board of Canada is strongly committed to ensuring victims have an important role in the conditional release process. Under the CCRA, victims are currently entitled to receive certain types of information about the offender who harmed them. This includes information about the offender's eligibility and review dates. As well, victims can obtain copies of the board decisions through our decision registry. Victims can also provide a written statement to the board and present this statement at a hearing.
Bill C-479 will serve to amend additional areas of the CCRA as it pertains to victims. This includes requiring the disclosure of certain types of information to registered victims within 14 days, where practicable, of the planned release of an offender.
The bill also includes an explicit description of the rights of victims and members of their families to attend and participate in hearings conducted by the board. In cases where victims are not permitted to attend a hearing, the board would be required to provide the victim with an opportunity to observe the hearing by any means deemed appropriate by the board.
Similarly, it would entrench in law the ability for a victim who is not attending a hearing to present their statement through an audio or a video recording at the hearing.
There is also provision that would require the board to provide registered victims or offenders upon request with a copy of the hearing transcript, should one exist.
As mentioned, the Parole Board of Canada is strongly committed to ensuring victims have an important role in the conditional release process.
This concludes my opening remarks, but I would be pleased to take any additional questions you may have.
Senator Baker: Thank you to the witness. I wish to recognize the excellent work that this witness and persons associated with her, the Parole Board, are doing.
My major concern regarding the legislation and the statement you just gave is this: The legislation that we're considering is a private member's bill, and there is a section of it that says that it will be retrospective in nature. I imagine you would answer to me, if I were to ask the question, that as far as the constitutionality of the matter is concerned you would defer that to the Department of Justice; am I correct?
Ms. Brisebois: Yes.
Senator Baker: Let me then deal with the other important aspect of legislation. One of the major purposes is a change in the statutory period of time during which a review must be made. It stretches it out from two years to five years if the person is refused parole at the first hearing.
My first question is this: What percentage of people, generally speaking, would be granted their wishes at the first hearing? Would the majority of those applicants be successful in their first hearing?
Ms. Brisebois: I have general statistics with respect to grant rates for full parole. Approximately 32 per cent of offenders reviewed for full parole are granted full parole.
Senator Baker: So 68 per cent are rejected for full parole at the first hearing?
Ms. Brisebois: Again, those are very general statistic.
Senator Baker: Yes, very general statistics, but it would apply to the majority.
Now, you mentioned that it does not affect the rights of a prisoner to apply for parole after one year of being rejected in the previous application; is that correct?
Ms. Brisebois: That's correct, yes.
Senator Baker: That's in the act.
In your regulations, it says that the board must consider the application within six months following the application being made; is that correct?
Ms. Brisebois: That's correct.
Senator Baker: That's 18 months. But when the prisoner himself or herself applies under those circumstances on their own, the Parole Board must consider the application and not necessarily have a hearing concerning the matter; is that correct?
Ms. Brisebois: We are required to conduct a review for applications. Various case specifics could factor in whether or not a hearing would be held, but in certain circumstances it wouldn't be required; you're correct.
Senator Baker: That's the distinction we're dealing with, in that the statutory reviews mandated by legislation are now changed. I imagine you would have probably joined the two together if you had a full hearing. In other words, your statutory review might comply with the same period of time for the requested review and you would have a full hearing; is that correct?
Ms. Brisebois: It again depends. For instance, currently if an offender is being reviewed for full parole at the two-year mark and he applies for day parole and those dates are close in time, we would review both the day parole and full parole at the same time.
Senator Baker: Basically the bill does what the private member sponsoring the bill set out to do, and that is to give a longer period of time in which the review or a hearing would take place.
Ms. Brisebois: Yes.
Senator Baker: Thank you.
[Translation]
Senator Boisvenu: Ms. Brisebois, first off, I would like to thank you very much for your brief. Yesterday, victims and victims' representatives testified before the committee and stated that the bill does not go quite far enough in terms of transparency when it comes to the information provided to victims of crime.
You mention in both your conclusion and the body of your presentation that victims must play an important role in the parole process. I think everyone will agree that this bill is a first step toward legal recognition. Provisions will be included in the act that will make it possible to recognize the true rights of victims, whereas in the past, directives were issued by the board and its board members to invite the victims, if that was desired, but we know that this was done sort of randomly.
The ombudsman for victims, Ms. O'Sullivan, made seven recommendations that would ensure that the Parole Board of Canada is more transparent in the information that it gave to victims, that the victims have access to more information, particularly video, rather than audio, recordings of board meetings, the criminal records and the offender's criminal history if the offender commits a crime in prison.
Should we go even further with recognizing the rights of victims in the parole process?
[English]
Ms. Brisebois: I can only speak to how the board currently operationalizes the legislation and how this bill would currently impact the board. I would like to point out that the board has over 22,000 contacts annually, with over 7,500 victims. We have over 900 victims that observe our hearings currently, and last year we had 264 victims that presented at our hearings. Fifty-five per cent of our decision registry requests are from victims, so we do work very closely with victims currently, under the existing legislation.
[Translation]
Senator Boisvenu: Would the board eventually be inclined to make video recordings of hearings?
[English]
Ms. Brisebois: I couldn't comment on a particular opinion in that respect, but I can comment on the fact that we do have audio recordings of hearings that are available for our appeals division, as well as to offenders who, following a denial, would want to review their case. But we do not video record our hearings at the present time.
[Translation]
Senator Boisvenu: This morning, we heard from witnesses who sided more with the defence of criminal rights. Given the relatively small number of criminals who will be affected by this bill, do you think it will increase the work of the Parole Board of Canada?
Will the Parole Board of Canada be able to administer this bill, given the impact that it may have and the resources you have available?
[English]
Ms. Brisebois: The way the bill is currently written, the board could implement it within the existing resource framework.
Senator McIntyre: Thank you for your presentation, Ms. Brisebois. On page 3 of your speaking notes, paragraph 4, you write that ". . . the board may conduct a parole or detention review at an earlier time based on the information it receives from CSC" and that "under Bill C-479, this would not change." Are you referring to paper reviews?
Ms. Brisebois: Not specifically. I'm referring to reviews by the board, so it could include paper or hearing. The example could be that, for instance, an offender has been denied full parole, and within the legislation there is a one-year time frame before the offender can reapply. If we receive information and a recommendation from the Correctional Service indicating that there have been some significant changes and the offender perhaps participated in a program, or whatever it may be, by way of policy and in conjunction with Correctional Service of Canada, the board could review the offender at an earlier period of time than the one-year application period.
Senator McIntyre: Could you tell us more about paper reviews?
Ms. Brisebois: Board members assess the case files in all instances, but in some instances we hold hearings, which would include an in-person, face-to-face meeting with the offender. At those hearings, the offender can have an assistant present. Victims can also observe the hearings. Victims can actually make a presentation at the hearing if they so choose. The hearing basically involves an in-person discussion with the board members, the offender and the participants at the hearing.
If a paper review is conducted, we receive a significant amount of information. The board member would review the information with respect to that offender in office. As Mary Campbell mentioned earlier in her presentation, it could include a victim presentation or victim information that's been provided, as well as representation from the offender.
Senator McIntyre: One of the key points of the bill is that it calls for the release of the offender's correctional plan to victims. Are you in agreement with that?
Ms. Brisebois: I'm not in a position to provide an opinion on that, but the board would work closely with the Correctional Service of Canada, which is responsible for developing and maintaining that correctional plan, to implement the legislation if it were passed as it is written.
Senator Plett: In your presentation, Ms. Brisebois, you say: "In cases where victims are not permitted to attend a hearing, the Board would be required . . . ." Under what circumstance would a victim not be permitted to attend a hearing?
Ms. Brisebois: I reference that because it's in the actual legislative proposals that would require the board to consider facilitating the victim's observance by other means. It would rarely happen, but, for instance, there are certain criteria under the law, one being the institutional security aspects. Perhaps the victim may have a criminal record or there may be security concerns around the victim. They would not be permitted to be within the institution, but the board would facilitate that attendance off-site. We do currently. Not necessarily for that reason particularly, but for other instances where a victim is unable to attend, let's say for medical issues or whatever it might be, we would facilitate their observing off-site by way of video conference.
Senator Plett: Senator Boisvenu, I think, touched on this, but I just want a little more of a specific answer because I asked Ms. Campbell this. As you say, there is a provision that would require the board to provide registered victims or offenders, upon request, with a copy of the hearing transcript. Ms. Campbell seemed to think that that would not happen because you didn't have the resources, et cetera. You did answer. Would you include that in your answer to Senator Boisvenu when you say that you have the resources to do everything this bill is requiring of you?
Ms. Brisebois: As written, and I'll be specific about that particular point.
The legislation, as it's written, indicates that the board would provide a copy of its transcript, if one has been prepared, to the victim, the victim's family or offenders. Currently, transcripts are not routinely made of hearings.
Senator Plett: I know that I'm repeating, in part, Senator Baker's question, but Mr. Purtzki, a constitutional lawyer, seemed to question the constitutionality of this bill and then could not answer a very simple question I asked him. I want to, for the record, ask you that question, and I would like an answer.
Under this bill, does the Parole Board have the authority to set a new hearing date two years later?
Ms. Brisebois: Are you talking about the ability for the board to review the offender before the five years that it proposes?
Senator Plett: Yes.
Ms. Brisebois: If we go back to what we spoke about with respect to the offender applying, the offender can apply one year following a denial. The board would be required to review that application for full or day parole within six months. In addition to that time frame, the board could also, by way of policy, review a case within an earlier time frame if the offender has made gains within its correctional programming and plan.
Senator Plett: So the short answer is yes?
Ms. Brisebois: Yes.
Senator Batters: Thank you very much for attending before us today. I also want to thank you for the very helpful comments you made in your opening statement that outlined in pretty good detail the many ways that the Parole Board can exercise discretion in this sort of instance.
I know that you are limited in what you can provide as far your opinion goes, but I'm wondering if you can provide us any information about how you think victims could be better included in the Parole Board process. Maybe that's something that you can describe in dealing with this particular bill, or if there are any other comments in that regard you can make.
Ms. Brisebois: Under the current legislation, it does entrench certain aspects that are currently in practice, so it does identify victims' rights with respect to observing a hearing. I just mentioned that when a victim is unable to be on-site, we do it by way of policy and facilitate video conferencing. But this bill would entrench in the legislation that particular aspect. It also expands the type of information that a victim would receive. The example of the correctional plan would be one of them, as well as the transcripts, so it would provide them additional information under this legislation.
[Translation]
Senator Dagenais: We know that the victim has the right to obtain information from the Parole Board of Canada. Who makes the decision to provide information and how much information can be provided?
[English]
Ms. Brisebois: The law is currently quite clear about what information can be provided to the victim by both the Parole Board and Correctional Service of Canada. Within the legislation it identifies certain information that's mandatory, and shall be provided to the victim, and those that are discretionary. However, in most instances, information that is available to be provided to the victim is provided. The law is very clear.
The discretionary portion that you're referring to relates to where the release of this information — there is a test — weighs the offender's interest and the victim's interest. There may also be security aspects. But for the most part, both Correctional Service Canada and the Parole Board of Canada are currently able to release the information that is contained within the law that we are able to.
[Translation]
Senator Dagenais: So, if I understand correctly, you are taking into account the victim's interests and the offender's interests, as well. Is that right?
[English]
Ms. Brisebois: There is a test. It depends. For observers, there is a different test. I'm simplifying it, but yes.
Senator Joyal: I'm a little puzzled, to be frank, with your comments that this bill will not put on you any responsibility for additional resources.
Yesterday, we heard the sponsor of the bill and the victim representative, and they were expecting — and I think they're entitled to that, since legislation is supposed to mean something — that there would be an improvement in the information, the participation of victims and the treatment of a request by an offender at the Parole Board. But you seem to tell us that you have all the resources and capacity to answer that call. At the same time, in a previous answer, you just stated: if they are available. You can decide it's not available and then you have no responsibility to provide the information. It seems to me that it's a dog chasing its tail. I thought, maybe naively, that this bill will impose upon the Parole Board commission some responsibility in relation to the victims that is greater than it was before. But you seem to tell us: "If we want to do it, we'll do it, and if we don't want to do it, we won't do it. This is it, thank you." Am I characterizing your answer correctly?
Ms. Brisebois: I would like to clarify because it wasn't my intent to portray that. The board currently has specialized staff that work with victims. We share information on numerous fronts and work very closely with the victims. When we assess additional information with respect to, let's say, a correctional plan, we believe that that can be absorbed within our existing framework. While there may be some additional duties within the bill, we believe that could be accommodated through our existing framework.
With respect to transcripts, and I want to be clear, the way the bill is drafted, it indicates that a transcript will be provided if one has been prepared. There is no discretion in terms of whether or not we currently prepare it. It is on an exceptional basis. We do provide copies of decisions and anyone can request a copy of a decision.
Senator Joyal: We're not talking about decisions. Decisions, of course, have to be public. It seems to me that a decision by the Parole Board has to be made public. You're not improving the system by telling me the decision is going to be public. I'm sorry to interrupt. I was going to use a word that I will not use because we are in Parliament, but it doesn't meet the expectation, to put it diplomatically.
Ms. Brisebois: I want to clarify that the decisions are recorded. Rationale for the decisions and the decisions themselves are available.
With respect to transcripts, that would entail having a word-for-word written transcription of the hearing. I guess what I'm trying to clarify is that the board currently does not do that by way of routine. It is on an exceptional basis, for instance, in litigation cases. That's what I would like to clarify.
Senator Joyal: Yesterday, we were told by the representative of the Toronto Police Service that some offenders are incarcerated for instance, in British Columbia, but the victim lives in Toronto. They are informed in a very short period of time that the hearing is cancelled. They can't appear. They have to reorganize their lives. A lot of weight or responsibility is put on a victim who wants to participate in a hearing.
We were also told about private information that the victim requested from the Parole Board. They were denied it. We were given the example of somebody who wanted to have the picture of the inmate so that when the person is released, they want to be able to recognize him. That is information that seems to me to be rather accessible for somebody who wants to protect his or her life.
It seems to me there are elements that need to be addressed on the victim's side. Besides the generous statement that you are open to victim representation, I don't sense that the system is still flexible in a way that recognizes the plight of victims in relation to the board. Am I right or wrong in stating that?
Ms. Brisebois: I think the board has actually gone a long way to meeting the needs of victims and in some instances, by way of policy, has introduced measures that are later instituted through legislative changes. For instance, when we talk about the presentation of victims' statements, this has been a policy of the board for a long period of time. It was legislated through the Safe Streets and Community Act, so it was entrenched in law. The board is cognizant of the important role that victims play in the conditional release process, so we do look for ways to ensure that their involvement is key.
Senator Joyal: What are the criteria to define that information in relation to an inmate is deemed private and not accessible to a victim?
Ms. Brisebois: The legislation? We're subject to the Privacy Act, as any other department, so that's the key piece of legislation. Then within the Corrections and Conditional Release Act, victims, unlike other members of the public, have access to additional information about the offender who harmed them. Victims actually have access to information that members of the public wouldn't have access to. The legislation specifies what types of information the victim is able to be provided. The board adheres to the legislative criteria.
Senator Joyal: Of the Privacy Act?
Ms. Brisebois: Of the Corrections and Conditional Release Act and we also adhere to the Privacy Act, yes.
Senator Frum: You mentioned it was a 68 per cent failure rate after the first parole request for most violent offenders. You said 68 per cent are turned down on the first request.
Ms. Brisebois: I identified that the grant rate of full parole is 32 per cent.
Senator Plett: Senator Baker subtracted that.
Ms. Brisebois: Thirty-two per cent of the offenders who are reviewed for full parole are granted.
Senator Frum: For that group, you presumably at that point would have to work with them to start a new correctional plan because they didn't do it or just did not succeed at it. Their plan is not working. I presume at that point they would get a new plan. What is the usual time frame for those plans, for someone who has failed the process?
Ms. Brisebois: I will mention that statistics can be very tricky. I just identified the full parole grant rate. It doesn't necessarily tell the whole story because we have offenders that are granted day parole or there may other instances or scenarios.
When we're speaking about the correctional plan, it falls under the purview of the Correctional Service of Canada. It is their responsibility to develop a correctional plan with the offender. They do that commencing at intake, and that plan is worked through as part of the offender's sentence and until the sentence is completed. It would be under the purview of the Correctional Service of Canada to develop, maintain and work with that offender to meet the objectives of the correction plan.
Senator Frum: Can I ask you then, for the second round, whether it's a year or two years later, do you have those statistics on what happens?
Ms. Brisebois: Following a denial?
Senator Frum: Yes. Do you know?
Ms. Brisebois: There can be a number of factors that play into it. For instance, an offender's sentence can be a big factor whether or not he would be reviewed for full parole again. If an offender has a two- or three-year sentence and is reviewed for full parole and denied, if he is serving a determinate sentence, he would be released on statutory release shortly thereafter, at two thirds. Typically we wouldn't see those offenders for full parole again, but they may apply for day parole. In some instances, day parole release prior to statutory release would enable an offender to participate in a substance abuse program, for example, so various factors could play into that.
The Chair: Senator Joyal raised the issue of resources, and one of the points raised yesterday by the Toronto police related to the British Columbia example that he cited. Is it the case that the board pays the expenses of witnesses who have been afforded the opportunity to appear at the hearings? For example, if a Toronto victim wanted to go to B.C. and the institution, his or her costs would be covered?
Ms. Brisebois: A travel fund is administered through Justice Canada. A victim can apply and receive costs associated with travel to Parole Board hearings, but it is administered through Justice Canada.
The Chair: That was raised in the context of the lack of use of modern technology such as video conferencing, which we use in this committee on a regular basis. Is there anything happening along those lines to address that and which would provide significant cost savings in the B.C. example and can be used for other areas of improvement in the board?
Ms. Brisebois: The board has six regional offices, so for our purposes we have a secure network that we use for video conferencing that we connect with the institution. Because of security factors there are some limitations. For instance, if a victim lives in Newfoundland and they would like to observe a hearing, our regional office is located in Moncton. At that point, and due to the requirements for video conferencing and the security aspects, a victim could determine whether they want to travel to the Moncton office to observe by video conference or travel directly to the institution. So that situation could be influenced by a number of things.
The Chair: What kind of security concerns are there?
Ms. Brisebois: We talked about the Privacy Act, because we're dealing with protected information. Information discussed during a hearing relates to aspects of an offenders' criminal history and also relates to victims. That information needs to be protected at a certain level. I'm not a security expert. I'm responsible for policy and operations, but there are security requirements that would preclude the ability for somebody to just Skype into a hearing. I know there is a lot of technology available, but because of the nature of the type of hearing, we do have to use a secure network.
Senator Baker: There is a considerably reduced expectation of privacy for somebody who is incarcerated in an institution.
Let me get back to the transcript question that Senator Joyal asked you about. When this bill was originally proposed — it's a private member's bill, not a government bill — and introduced in the House of Commons, it was considerably different than this version here today. It has been amended considerably. Although we heard from witnesses who said it would be wonderful to receive transcripts, you've corrected the record. This bill says, "If a transcript of the hearing has been made, the Board shall, on written request . . . ." As you point out, it's not normally made. Then there is a further redaction that it ". . . shall not include any portion of the transcript of the hearing that, under subsection 140(5), was or would have been continued in the absence of observers or of a particular observer." It not only negates the provision of a transcript but it further reduces, even in cases where a transcript is available, the content of what you can disclose. I don't know if you want to comment further on that.
Senator Plett asked you a question regarding whether this particular act would prevent parole reviews. Well, obviously the intent of the legislation is to stretch out the period of time. That's the whole intent of the legislation. I think you've provided adequate explanation that otherwise, apart from the statutory requirement of review, yes, somebody can apply and there is a year and there are six months in which you have to respond, but you're responding to the application. That doesn't mean there will be a hearing. I don't know if you want to comment further, or have I said everything correctly?
Ms. Brisebois: That's correct, yes.
Senator McInnis: What effect will this hearing within five years have in terms of management? How do you see this working? Say, for example, a prisoner is not exactly a model prisoner and reports that come forward are not favourable. Will this discretion be used in managing the caseload? In other words, you would put it off perhaps another year and review the case worker's report to the Parole Board, thus doing a number of things, the least of which is saving money, and secondly, putting the victim through the traumatic experience. Do you see this as being part of the Parole Board's management system in the future?
Ms. Brisebois: The reviews, the schedule for reviews and the time frames for when an offender can apply following a denial is set out in the legislation, so the board wouldn't have the discretion to put off a review. If the time frame for legislated review is two years or five years, or, let's say cancellation or termination, four years, we would be required to hold a review.
Senator McInnis: This is within five years.
Ms. Brisebois: Yes, and the board reviews it closer to the five-year point. The offender can apply within that period of time.
Senator McInnis: That's my point. If they apply and you have the report and it's not favourable, isn't it a waste of time if you could go up to the five years?
Ms. Brisebois: The legislation really sets out the time frames. If the offender applies one year following a denial, the board is required to hold a review of that application within six months, so there is no discretion of the board to push that back. It is the same thing with the legislated time frames, whether two or five years, so the board would continue to review the case within the legislated time frames and within the framework of the CCRA.
Senator Joyal: Could you confirm the statistics that Ms. Campbell gave us this morning that only 17 per cent of victims concerned about offenders are registered with the Parole Board to receive the information about your hearings and various procedures?
Ms. Brisebois: I wouldn't be able to confirm that statistic. I don't have that statistic. We do know we have over 7,500 registered victims. The difficulty is that a victim may be registered with multiple offenders. There are various scenarios that impact the ability for us to fine-tune the percentage of victims attached to the overall number of offenders. But I do know that there are over 7,500 registered victims with the board that we provide information and work with.
Senator Joyal: You're dealing, again, with how many offenders?
Ms. Brisebois: I think there are over 20,000. That's the Correctional Service of Canada. I think it's 19,000 or 20,000 in total, but don't quote me.
Senator Joyal: Roughly one third of the victims.
Would you have any stats on the number of victims registered for the offenders that are targeted with this bill, the serious offenders, the most violent offenders?
Ms. Brisebois: You are correct in that most of the registered victims are victims of the most serious offences. For example, if an offender is serving two or three years, this legislation would not necessarily have a significant impact on their legislative reviews because they will be seen for one full parole review, and then they'll likely be released on statutory release because of the time frames. Victims that we see are victims of the most serious types of offences and have the longer sentences.
Senator Joyal: Yesterday, the victims' ombudsman gave us a list of recommendations in relation to what she would expect as improvements to the access of victims to the process of the Parole Board. Are you aware of the list of recommendations she tabled with us?
Ms. Brisebois: She has tabled a number of reports, and I am aware of her testimony, yes.
Senator Joyal: Could you comment on the recommendations that she put to us that you feel are important ones?
Ms. Brisebois: I'm not in a position to provide an opinion on her recommendations. I could speak to how certain aspects are implemented. She does talk about video conferences, and the board does work closely with victims to assess their needs and to utilize video conferencing when a victim is unable to be on site for a hearing. I could speak to the operational aspects of the recommendations, but I couldn't necessarily provide an opinion on them.
The Chair: I will take the liberty of one final question. Senator Baker raised the issue of transcripts and the fact that they are usually not kept.
In defined circumstances, if this continues to be a concern as raised by the Toronto Police Service and, I think, others, could that be addressed through a ministerial directive, directing the board to produce transcripts in defined circumstances, certain cases?
Ms. Brisebois: I'm not sure, to be quite honest. I'm not necessarily sure how that —
The Chair: If someone could get us an answer, it would be helpful when we get to third reading debate. This issue continues to be discussed.
Thank you for very much, Ms. Brisebois, for being with us today and answering questions. We very much appreciate it.
Members, we will reconvene on February 18. We will be doing clause by clause on this legislation, and we will also hopefully be dealing with the Miscellaneous Statute Law Amendment Act.
(The committee adjourned.)