Proceedings of the Standing Senate Committee on
Human Rights
Issue No. 15 - Evidence - March 1, 2017
OTTAWA, Wednesday, March 1, 2017
The Standing Senate Committee on Human Rights met this day at 11:38 a.m. to study the issues relating to the human rights of prisoners in the correctional system; and, in camera, for the consideration of a draft agenda (future business).
Senator Jim Munson (Chair) in the chair.
The Chair: Honourable senators, I see we have a quorum this morning as we continue what has been described as our landmark study on Canadian prisoners in our prisons, but we do need an international perspective as well. We are weeks into our study now. This may take two years, but we hope to have interim reports for those who may be watching this broadcast, because we think it is relevant and timely on the human rights of prisoners in the Canadian system.
I would like to have our senators introduce themselves before we have our two guests give testimony. As usual, I will start with our deputy chair.
Senator Ataullahjan: Salma Ataullahjan from Ontario.
Senator Andreychuk: Senator Raynell Andreychuk from Saskatchewan.
Senator McPhedran: Senator Marilou McPhedran, Manitoba.
Senator Pate: Kim Pate from Ontario.
Senator Hartling: Nancy Hartling, New Brunswick.
Senator Bernard: Wanda Thomas Bernard, Nova Scotia.
The Chair: And I am Senator Jim Munson. I represent Ontario but, as I say from time to time, my heart is in New Brunswick.
We have with us Anthony Doob, Professor Emeritus of Criminology, Centre for Criminology and Sociolegal Studies, University of Toronto. But will start our testimony this morning with Akwasi Owusu-Bempah, Assistant Professor, Department of Sociology, at the University of Toronto, via video conference, who is speaking to us from London in the U.K.
Professor, if you would like to start us off, and we will then have testimony from Professor Doob. Go ahead, sir, and welcome to our committee.
Akwasi Owusu-Bempah, Assistant Professor, Department of Sociology, University of Toronto, as an individual: Thank you for the invitation to present to you today.
Our overall focus is on the intersections of race in the criminal justice system. So the majority of my statements focus on how race impacts in corrections, specifically the appearances of inmates. Some of what I'm going to say was said previously by the Correctional Investigator of Canada, but as put to me earlier, I can't assume that you are all completely familiar with this.
The Chair: Professor, sorry. You are breaking up a bit. We will have to work on this. We only hear every second word you are saying. That is unfortunate. It must be the rain. We will work on this, and we will have the professor who is with us start our testimony. Please be patient.
I have just been told that if you speak a little slower we may be able to work this out. Let us try this again.
Mr. Owusu-Bempah: On the intersections of race in the criminal justice system. My remarks today will focus on race and corrections, specifically the experience of Black inmates.
The Chair: Unfortunately, it is still breaking up a bit. We will work on this. Please stay with us.
We will start with Mr. Doob.
Anthony Doob, Professor Emeritus of Criminology, Centre for Criminology and Sociolegal Studies, University of Toronto, as an individual: Thank you for inviting me. I thought what I would talk about is conditional release from prison. I think it is important to understand the manner in which decisions are made in penitentiaries to understand the human rights issues which affect people within this system.
The data available can be used to illustrate the problems that can result from what might be seen as even-handed application of the law. I'm going to be focusing much of what I say, if not all of what I say, on issues related to indigenous prisoners.
It's probably a bit of an oversimplification, but I think that disparity of outcomes for indigenous people are sometimes seen as one or the other of two extremes. One is as a result of prejudicial treatment; the second is the application of a law that inherently discriminates or allows or encourages discrimination against disadvantaged people.
As I said, I will be using the example of indigenous people, but this shouldn't be interpreted as meaning that everything that I say isn't true or may also be true of other disadvantaged groups in our society.
I'm talking about indigenous people in part because the data are more available for indigenous people in Canada than for other groups.
My starting point, though, goes back one step. I'm going to be talking a lot about conditional release from prison.
A couple of years ago, two of my colleagues and I, Cheryl Webster — who is here today — and Allan Manson, did a paper on parole, which has the title "Zombie Parole,'' which may tell you something about parole these days in Canada. To understand the title of that paper and also understand our findings, let me give you a brief overview of conditional release from prison.
Think of a prison sentence as being divided roughly into three parts. This is a federal prison sentence, so a sentence of over two years. The first third of it is normally spent in prison. For the middle third of that sentence, the person is typically, though not always, eligible for release on parole to the community. In the last third of that sentence, the person is typically, though not always, statutorily released from prison. I should have said that I am talking about people who are serving fixed-length sentences, which excludes people who are sentenced to life imprisonment — murderers, for example.
Think of the sentence as having these three parts. In the middle part, the person is eligible for parole; the third part is typically supervision in the community.
We looked at the operation of parole in Canada as it currently exists. We found that very few people, either in the federal or provincial system, are actually released on parole early enough for it to make much difference. If you think of that two-thirds point, it becomes normative. People may be released on parole, but they are released increasingly close to that two-thirds point.
To put those numbers in context, we found overall that if the Government of Canada were to completely abolish full parole at both the federal and provincial levels, that would result in an increase of 2.7 per cent in the federal and provincial custodial populations. It would increase the number of people who are in prison, but not by a whole lot.
If day parole were abolished — day parole is usually a precursor to full parole or a precursor to release at the two- thirds point — it would have a larger effect. If full parole were simply abolished tomorrow, it would lead to a relatively small — or I would suggest very small — increase in the prison population. That is the context.
What I will be talking about, as I said, is the treatment of indigenous people within the Correctional Service, largely in terms of parole and release from prison. Just so you know the source of the information, my information comes from this report, which is an annual report from Public Safety Canada called Corrections and Conditional Release Statistical Overview. It has a nasty title, but it is in fact a very readable document and easily available data.
The focus with indigenous people is usually on their overrepresentation in federal corrections. That's my starting point today. We know that they are overrepresented in federal corrections. But what I will be looking at is what happens within federal corrections. People get there because of various things that happen, the last step of which is sentencing. What I want to suggest to you is that the overrepresentation of indigenous people in federal custody is not related completely to sentencing decisions; it's also related to release decisions. So I think you have to look at the policies in order to fully understand what is happening.
Let me give you some numbers to try to put these things in context. The estimate is that 4.3 per cent of the Canadian population is indigenous people, and 22 per cent of the admissions to penitentiaries are indigenous people. So it goes from 4.3 per cent to 22 per cent. Slightly more than 24 per cent of the men in federal corrections are indigenous people, and 36 per cent of the women in federal custody are indigenous.
Now, start from 4.3 and end up at 36 per cent. That is a huge increase. That's a huge overrepresentation of women but also of men, at 24 per cent of those in custody. We are talking about big differences, big overrepresentation. But note that the representation in custody is larger than the representation walking in the front door. Why is that? It's because of release procedures.
Again, using federal documents publicly available on the Web and in hard copy, I looked to see how people got out of prison. What I found was that indigenous people were about one sixth as likely to get out on parole. They were about half as likely to get out on day parole. Obviously, when they do get out, they are getting out on statutory release — the part that is virtually automatic but, as we will see in a few minutes, not necessarily automatic for indigenous people or anybody else. So they are being disadvantaged within that system.
Detention past the two-thirds point is something that can happen. I want to go into that a bit because it is a window into the problem that we are dealing with.
At the two-thirds point of a person's fixed-length sentence in federal custody, Correctional Service Canada can go to the Parole Board and recommend that someone be detained past what would be seen as the automatic release at the statutory release point, the two-thirds point in the sentence. So they can do that.
In 2014-15, 42 per cent of the people who Correctional Service Canada recommended for detention were indigenous. Ten years ago it was 31 per cent. So in the last 10 years it has gotten considerably worse in terms of the recommendations of corrections to the Parole Board to detain someone to warrant expiry.
We have to think a bit about what that means. The test is an interesting one. I will read to you the test from the Corrections and Conditional Release Act. It says:
If the Commissioner believes on reasonable grounds an offender is likely, before the expiration of the sentence . . . to commit an offence . . . .
Think about those words, "before the expiration of the sentence.'' It is as if we don't care about the reintegration of prisoners. We don't care about what they might do after the expiration of the sentence. But the focus is on that portion of the sentence that can be served in custody before the person is a fully free person.
From a public safety perspective that's ludicrous, because if I am hit over the head by somebody, it doesn't make a whole lot of difference to me whether that person is serving the last day of their sentence or that they have served their complete sentence and it is one day later. What we are doing with indigenous people is automatically giving them less of an opportunity for reintegration.
About 15 years ago — and Kim Pate would remember this — one of the commissioners of Correctional Service Canada got himself in trouble for suggesting that perhaps Correctional Service Canada had too many of its charges within custody rather than being supervised in the community. This commissioner suggested that it would serve public safety if we integrated people more into the community rather than holding them as long as we do. He received a lot of criticism for these statements, but I think we can ask ourselves: How are we treating indigenous and non-indigenous people in that dimension?
I will start with women. If you look at the proportion of Correctional Service Canada's charges who are in custody, for indigenous women it is 68 per cent. Slightly over two thirds of the women who are under the responsibility of Correctional Service Canada are actually in custody today. For non-indigenous, it is 52 per cent of women. It is considerably more. Again, today 68 per cent are in custody, indigenous women; 10 years ago it was 52 per cent.
The problem is clearly getting worse in recent history. For non-indigenous women it has also increased, from 40 per cent to 52 per cent.
For indigenous men it was always high and is still high, but for indigenous men it is about 10 per cent higher than for non-indigenous men.
The net result of this is we have a serious problem of reintegrating people into the community.
You can understand to some extent the Parole Board's problem in these circumstances because the Parole Board is really working in many ways — I was going to say "under the control of,'' but at least they are limited by what happens in the actual correction system.
One of the things that happens is the movement of people into minimum security. If you look today, for example, at where people are in custody, indigenous people are less likely to be in minimum security than non-indigenous people. We have a circumstance where Correctional Service Canada, for various reasons, has difficulty putting people in minimum security. The result is that the Parole Board looks at them and says, "They are not ready for release because, after all, they should be in minimum security if we are to release them.''
I will not go into detail because I suspect I am running out of time, but the Auditor General in 2014 took on Correctional Service Canada on the issue of minimum security space and the use of minimum security and made a recommendation that Correctional Service Canada should determine why offenders are staying longer in custody than is necessary, making reference to the fact that Correctional Service Canada, in its wisdom, both underused and underbuilt minimum security facilities.
When you look, then, at why indigenous prisoners are disadvantaged, it seems to me that the obvious things people are going to look at would be to say, "Well, what kinds of people are coming into the system?'' If you think about this logically, you say that the offence and perhaps the person's criminal record are disadvantaging them while they are in prison. However, we have to remember that the offence and the criminal record are the major determinants of their going to a penitentiary in the first place and how long they stay there, so in effect they are being punished by their sentence according to what they have done, and that is part of our Criminal Code.
We have a custom of taking into account and giving heavy weight to the criminal record, but what we are probably doing as well is using those same things to disadvantage people within the correctional system. As I said, for fixed- length prisoners this means that they will be serving a longer period of time in custody and a shorter period of time in supervision and support in reintegration into the community.
If you look at another section of the Corrections and Conditional Release Act — and I will paraphrase it — it says that the Parole Board "may'' grant parole to an offender if, in its opinion, the offender will not, by reoffending, present an undue risk to society before the expiration, according to law, of the sentence. Again, what we are concerned about is what happens before the sentence.
If I were the Parole Board, if I were the Correctional Service Canada, I can cover myself on this one by simply being tough and saying, "Everyone serves a maximum period of time in prison, and I will not release them because there is a possibility that they will commit an offence before the expiration of the sentence.'' But the day after the sentence is over, nobody cares.
From a public safety perspective, that has to be wrong. Within the context that I have been talking to you about, as people who are interested in human rights, that kind of test is having the effect of disadvantaging a particular group, and in this particular circumstance it's indigenous people.
I am pleased you are looking at these issues. I think that how people get to federal prison sentencing is an important issue that needs attention, but the manner in which people are released is an important issue that deserves attention in this context.
In your own deliberations and in your own thinking about this, earlier release does not automatically threaten public safety. One could easily make, on the basis of evidence, the opposite argument that we really need to realize that roughly 5,000 people a year are being released from our federal penitentiaries into the community and that it is our responsibility to ensure that they have every possible opportunity for reintegration.
You can see conditional release, parole, and so on, as an increased opportunity for reintegration, and this is an opportunity that appears to be disproportionately denied to indigenous people.
Thank you very much.
The Chair: Thank you, Professor Doob. We will have a conversation and questions for you, but we will try again with Professor Bempah.
You may not see us because of the bandwidth. We do see you and hope this time that we can hear you clearly. Sir, go right ahead.
Mr. Owusu-Bempah: We will try this again. Can you guys hear me on the other end?
The Chair: Yes, this is excellent now.
Mr. Owusu-Bempah: Thank you for allowing me to address you today. The majority of my research focuses on the intersections of race and the criminal justice system. As such, my submissions to you today will focus in this area.
As you may know, the racial, ethnic, religious and cultural composition of Canadian federal corrections has changed rapidly over the past decade. I would like to start by suggesting there is a dire need to understand why this has occurred and how best to address the risks and needs of a changing prison population.
One of the first things that I want to draw your attention to or raise questions about is the language that Correctional Service Canada uses in talking about non-White prisoners. For example, CSC attempts to address the needs and provide programming for ethnocultural offenders. In doing so, they lump together very different groups of people with very different experiences, past and present.
While these are untangled sometimes, we need to acknowledge the great heterogeneity within these groups. Amongst Blacks, for example, the focus of much of my research, we are talking about communities that have lived in Canada for centuries, established immigrants groups from the Caribbean, as well as more recent immigrants from continental Africa. Thinking about those from continental Africa, we are talking about people who speak different languages, have different religions and very different past and present experiences, from those who have immigrated from relatively prosperous countries to those fleeing conflict and violence.
A key goal in understanding how diversity and the heterogeneity of the prison population manifest is that the community should understand and better help Correctional Service Canada better understand this phenomenon. In practical terms, how might something like solitary confinement differentially impact someone coming from a war-torn country who has been subject to torture?
Next, we need to understand why we have seen such a dramatic rise in the proportion of Black and Aboriginal offenders over the past decade. Again, my research focuses primarily on Black Canadians. Amongst Blacks, we know from my own analysis of the data that this increase in the Black federal prison population cannot be explained by the growth of Blacks in the general Canadian population.
In 2001, Blacks represented 2.1 per cent of the overall population. By 2011 this had grown to 2.9 per cent. As noted, however, we have seen a 75 per cent increase in the Black federal inmate population between 2003 and 2013.
My sense is that Blacks and Aboriginals have been disproportionately affected by the erosion of social welfare programs, leaving many more of them in marginalized positions. I also strongly believe that Blacks have been disproportionately affected or targeted by the increased punitivism that Canada experienced over much of the past decade. Indeed the growth in the Black prison population has coincided with increased public and media debate about guns and gangs, the emergence of anti-gang initiatives that target neighbourhoods with substantial numbers of Black residents. So, too, has Canada's war on drugs disproportionately targeted Black and Aboriginal people.
Although we should be concerned about higher levels of interpersonal violence in certain communities, we cannot divorce this violence from larger social processes. I see crime and violence as a social ill and thus as a failure of the state to adequately provide for and address the needs of socially disadvantaged groups. In this sense, we need to think about human rights and equality not just in the context of corrections but as a broader social phenomenon.
I'm going to touch upon a few specific problems that Black and Aboriginal inmates face. I should note that a lot of this has been covered by the review that the former Correctional Investigator did into the Black inmate experience, but I want to draw your attention to a few specific points. These mainly relate to a lack of protection of individual rights and the entitlement to equality protected by the Charter and other federal laws.
First is the experience of overt racial discrimination. This includes mocking the way that Black inmates speak. As the previous Correctional Investigator noted in his report, Black inmates provided examples of overhearing correctional staff mocking their accents, trying to speak with Jamaican accents, for example. One of the inmates reported that a correctional officer asked him what was wrong with his tongue: "Don't talk to me like a hoodlum.'' Overall, the inmates noted that there was overwhelming concern about the treatment of Black inmates by CSC staff.
Next is the disproportionate use of administrative segregation. Between March 31, 2005, and March 31, 2015, as the Black prison population in federal custody increased by 77.5 per cent, the number of Black inmates sent to solitary confinement increased by 104 per cent. So this increase in the use of administrative segregation is outpacing the already alarming growth in the Black prison population overall. Over the same 10-year period, the number of Caucasian inmates decreased by 12.3 per cent.
Related to this, maybe, is the apparent discrimination or inequality in the use of institutional discipline. Between 2007-08 and 2011-12, the number of Black inmates facing disciplinary charges increased by 59 per cent, whereas the overall number of disciplinary charges laid over the same period decreased by 7 per cent. Of note, over this period, Black inmates were consistently overrepresented in discretionary charge categories — those charges that require judgment on the part of correctional officers — whereas they were consistently underrepresented in less discretionary charge categories, such as the possession of stolen property, theft, and damage of property.
Importantly, we have issues related to classification labelling. Professor Doob spoke a little bit about inmates being classified as minimum, medium or maximum security and what that means for their release decisions. So in addition to being sent to higher-security prisons, despite being classified on average as lower risk, Black inmates are less likely than their counterparts to have their custody score lowered so they can be transferred to a medium or minimum security prison. This suggests that at some point between risk classification and prison placement, Black inmates begin to be seen as higher risk or deserving of maximum security placement, and at no point is that deservedness reversed.
Most of the Black inmates interviewed by the Correctional Investigator also described being labelled as a gang maker, trouble maker or drug dealer. Importantly, this gang stereotype not only influences classification decisions; it's something that must be relinquished. The inmates must basically admit to being a gang member before they can successfully be paroled, because this is viewed as important to the inmates taking responsibility for their actions. So even in the cases where inmates were not gang members, because of the neighbourhoods that they are drawn from, there is an assumption that they have associations with street gangs and they must relinquish this gang status before they can successfully be released from the institutions, or at least in a more swift fashion.
Likewise, this gang label also often prevents Black inmates from obtaining Corrections Canada jobs or jobs of trust within the institution, thereby leaving them working jobs that need little experience and training, and those that would not really aid their reentry into society. While the overall prison unemployment rate for 2011-12 was 1.5 per cent, for Black inmates it was 7 per cent, which again this has an impact on what I guess you could call the success of their correctional experience.
In terms of moving forward, as I noted at the beginning of my submissions, I think there is a serious need to rethink how we understand and address the heterogeneity within Canadian corrections. If we are going to provide tailored programming, or if we are going to adequately address the risks and needs of inmates, we need to think of them not as homogenous groups but as heterogeneous groups.
Furthermore, and I will say this again, I think we need to understand the growth in specific sub-populations of prisoners. As imprisonment ultimately represents deprivation of liberty, freedom of movement and association, as well as various other human rights, we should think about whether the increasing concentration of incarceration amongst specific population groups is itself a violation of human rights. I would suggest that it is.
The increasing concentration of imprisonment amongst Blacks and Aboriginals is further troubling because of the impact that this has on the communities they are drawn from. We have ample evidence from the United States of these negative consequences. These range from adverse health and mental health effects to deteriorating educational employment outcomes, as well as a general reduction of community safety. And this impacts not only the individuals, of course, that are being incarcerated, but their children, families and the social networks they are drawn from.
Recognizing that most inmates go home, we might want to consider how best to reintegrate Black inmates into the community. We have section 84 for Aboriginals that allows Aboriginal communities to come together to provide specific supports outside the correctional setting in order to reintegrate Aboriginal offenders back into the community. This is something that perhaps could be expanded into something similar, to include Black inmates.
I will finish off by noting that in my perception, prevention is the best cure, and we need to consider who we are sending to prison and whether they really need to be there.
Thank you.
The Chair: Thank you very much, Professor Owusu-Bempah. We have lots of questions for you. We'll start our questioning with our deputy chair, Senator Ataullahjan.
Senator Ataullahjan: I thank both of you for your presentations. I have one quick question, professors.
You said that we have a problem integrating people into the community, so what are the solutions? What are we not doing correctly? What can be done on every level to help people integrate into society? We did hear from a prison inmate who said there was no help given to them at all.
Mr. Doob: It's interesting, because the original idea of day parole was, among other things, that it would be one step toward the community. The idea behind it was that it gave the former prisoner an opportunity to live in a stable environment, to have supports within that and then to be able to get a job and to slowly move into the community.
To go back to the data that I suggested — my guess is that the same data would hold for Black inmates as well — we say that while we can't take the risk with indigenous people, we're going to hold them close to our chest and not let them go back into the community.
I think the problem we have at the moment is if you look at the way in which we do reintegration, we provide the most resources and, in particular, the most time to the people who need it less.
This is hard work. There's no question that this is going to be difficult, but what we have is a decision process which makes it very difficult for the decision makers. I'm not excusing them, but I am trying to understand them. It makes it difficult for the decision makers to release people.
Thirty years ago, a recommendation was made by the Canadian Royal Commission on Sentencing, of which I was a member, that said let's get rid of this discretionary release; let's get rid of parole. Why should we do that? In order to ensure that people are serving a fair portion of their sentence and that everyone, in particular those who need it most, actually get this reintegration experience.
Nothing is perfect. If you look at the data on statutory release or release on parole, we're actually quite good in this country regarding those people we do release in the sense that they are very unlikely to commit violent offences or serious offences of any kind. When they're brought back into the prisons, they're brought back for technical violations of their conditions. So we're not bad at it.
But in some sense we say, "We're not bad at it because we're so picky on who we do it with,'' but we don't care. It's almost as if we don't care what happens to a person released at the warrant expiry date because Correctional Service Canada and the Parole Board of Canada can say, "We didn't let them out, so it's not our problem.'' Excuse me, it is their problem, because they didn't allow them that time.
One of the things I found in preparing for this session was in the Auditor General's report, where Correctional Service Canada is talking about how they don't have enough space for the things I'm talking about, such as for day parole. Who decides how much space they have? If I look at those costs, we're talking $117,000 per male prisoner, on average, and about twice that or more for a female prisoner to be in custody. Space in a halfway house for day parole is not cheap, but it's on the order of $30,000 a year per person. That's quite a bit cheaper.
Why is it that we are not planning for people's release? These are human beings who are being held for something bad they have done. I don't have any difficulty with that if the original sentencing is fair, but it seems to me that for them in terms of fairness and for the rest of us in terms of both fairness and public safety, we're not doing a very good job.
The Chair: Professor Owusu-Bempah, do you have a comment on this?
Mr. Owusu-Bempah: Professor Doob summed that up well. We know that probation and parole are notoriously stretched thin and often don't have the resources they need to do what they adequately could to help reintegrate offenders back into society. So one area to look at is the resources provided to and the size of the caseloads of parole officers.
The Chair: I don't normally intervene at this time, but Professor Doob and I had a conversation before. I was listening to CBC Radio's "Here and Now'' last week. A prisoner was released on parole with restrictions, and the restrictions were that the person had to have a job within two weeks, no matter what that job was, and the job had to do with clearing bed bugs from hotel rooms. He took the job because he didn't want to go back.
You said something interesting to me about what could be put in place instead of having to beg for work in order to avoid going back in.
Mr. Doob: It's the irony of it all.
Let's imagine that I'm a conservative economist who's saying let's look at this and use public resources effectively. The average cost, men and women, of incarcerating a person in the most recent year for the data I have available is $115,000 a year. For somebody in the community being supervised in a halfway house, it's $34,000 a year. Take that and consider that if this is a person living in a community on their own and give them a $50,000 or $30,000 job, we're better off. If you're going to bring him back to prison, do the math: We will save $75,000 if we give him a job that's $40,000 a year.
We're saying that they have to get a job on their own. As Akwasi mentioned, it's easy to say, "Get a job.'' We know it's difficult for people who have been in prison to get jobs. We know that it's particularly difficult for Black people who have been in prison to get jobs. My suspicion is that if you go into the communities that indigenous people come from, where you have enormously high unemployment, and say to this person, "You should get a job,'' good luck. It sounds good and has a ring of sensibility to it, until you think about the really practical problems of getting that job.
From a corrections perspective, you say, "Well, why don't we take on our responsibility to get that person integrated, to help them get a job and don't put the Sword of Damocles over him that demands to get this job or else?'' Let's help him get the job and reintegrate.
Senator Bernard: Thank you both for your insightful and informative presentations. I like the way the discussion is going.
I have a comment before I ask my question. It's difficult for indigenous and Black people across this country to find jobs if they don't have a record, so those who do have a record have an additional burden or barrier to overcome.
Professor Owusu-Bempah, you concluded by alluding to the idea of prevention. I would be interested in hearing your thoughts and ideas on prevention initiatives that we could consider.
Mr. Owusu-Bempah: I can get a little more specific, but we know that for every $1 spent on early prevention, and this includes everything from prenatal care for at-risk mothers who may have children in circumstances that would lead them to be more likely to commit crime, we see anywhere from a 3-to-1 to 7-to-1 return. I'm talking about everything from investing in prenatal care and early childhood well-being and education, to ensuring the educational success of people from our most marginalized communities.
We also want to consider the fact that especially among boys, if you make it to adulthood as a boy and don't engage in some kind of delinquent and criminal conduct, you're a minority. It's who's being targeted by the police and thinking about who we saddle with a criminal record or who we bring into the formal criminal justice system, even from a young age.
A well-established and growing body of literature shows that people who have contact with the formal justice system and are processed, even if they are given some form of diversion, are more likely to offend later in life. This will change a little bit now, but when we target people for minor cannabis possession, something that large proportions of the population do, we increase their chances that they're going into run into problems with the law again later on in their lives. So with regard to prevention, I think we need to seriously think about who we are sending away and why we're sending people away.
Thankfully, I think many of the mandatory minimums that came in under the last regime will be challenged in court, but for relatively minor offenders or for offenders who repeatedly engage in lower-level crimes, there needs to be a serious consideration — we're talking about the federal system here, so these would be for more serious crimes — about whether that $100,000, $150,000 to $200,000 a year going toward housing each of these inmates is the best use of that money or whether some kind of work scheme outside of the correctional system would be a better way to get these people on the right track.
We need to consider who occupies our prison cells. These aren't people who have been given, necessarily, the best life chances or opportunities, so when they run into conflicts with the law and they do so repeatedly, they end up occupying realize rather expensive prison cells and beds.
Senator Bernard: A follow-up question to that would be on the issue of community involvement with reintegration. I would be interested in any ideas you may have that could facilitate such involvement.
Mr. Owusu-Bempah: Let's start before reintegration, and I will use the example of young people. When a young person goes to court and they've been found guilty of doing something wrong, upon sentencing, the judge might consider the supports that young person may be given. If that young person comes from a relatively privileged background, has two parents at home, attends a good school and is part of a sports team, these are all the supports that will mitigate the sentence handed down to that individual.
Many of the young Black, Brown, Aboriginal people who come into conflict with the system don't have those supports, so before we even think about the supports people might need on the back end of the system, what kind of supports might we be able to set up so they don't have to be incarcerated in the first place? The organizations that may be able to provide these supports, whether it's help with staying in school, job skills training or even around socializing, social activities — and I can think of the African Canadian Legal Clinic as an organization that does provide some of these services — could also provide services for people and young people when they come into conflict with the law before they have been formally processed, and at the same time on the back end. The African Canadian Legal Clinic does have programs in place, for example, to help reintegrate people back into society and these can be expanded.
Senator Bernard: Thank you.
Senator Andreychuk: Good to see you again, Professor Doob. It has been many years. Thank you for your persistence on working in this area and particularly with young people.
What I hear both of you saying is that if we really want to be successful in keeping people out of prisons and out of conflict with the law, we have to start at age 1 and maybe before that, and give the resources that those families and children need. As I said in juvenile court, for many of them it was too late for me to help them in that setting because their problems were within the family, within the school, within the community; those were the resources.
I get the point of the disadvantage because of where you start from and what limitations you have, and that's all valid. We're looking at a narrower take about the prison population — which is not narrow in itself. It's a huge field. I haven't heard the word "rehabilitation'' in our correctional centres or in our prisons for a long time. Part of that philosophy or one of the pillars of sentencing was for rehabilitation, where judges would even advocate for the rehabilitative services that a person needed to be able to effectively come out and be more productive than when they went in.
There was great debate, as you know, Professor Doob, in the 1970s about giving judges more discretion to follow up and make the system more accountable. I don't hear about that right now and I hear of very little rehabilitation within the system.
I see parole in many cases as a test case. We release someone to see if they need to go to a doctor. We release them because, in a recent case, of a mother looking after the child, et cetera, but it isn't done in a rehabilitative, reintegrative process.
Looking at one system in Chicago, where they had overwhelming incarceration, they concentrated on starting rehabilitation that would be useful when they're released and put resources into that. They found themselves being very productive because they were then "release ready'' to a certain extent, and then there was the follow up. I think to the professor's point about the African clinic being available, isn't that what we want rather than the way we have parole now, the way we have day parole, et cetera? Perhaps we need to go back to that philosophy of rehabilitation for reintegration?
Mr. Doob: There are a couple of things I want to say on that. First, what we do in the various points aren't mutually exclusive, so it's important to keep that in mind. But if you go back to what my colleague said a few minutes ago in answer to what might be done, early intervention programs get a bad rap for two reasons. One is that people say, "We can't wait that long; we have to do something right now with these people right here.''
There are two things with that point, and maybe it comes from me being 73 years old. Fifteen years ago doesn't sound very long to me, and if we had intervened 15 years ago on these things, we would have fewer problems. People say that we can't wait. Maybe election mandates are four or five years, but from a society perspective let's intervene now and make society a little bit better for our children and grandchildren. The second thing that's important is that, as a criminologist, I get a little upset when people start up social programs only to deal with crime. This may sound peculiar, but, for example, when you have a program that's designed for certain groups of children or groups of prisoners, we should be looking at it and saying, "Does this benefit society and does this benefit that person?''
I'm not asked whether teaching my students statistics makes them less likely to offend. I'm evaluated, in a sense, on whether I'm good at teaching them statistics. I think the problem is that people say it doesn't reduce recidivism sufficiently. Maybe it's a good thing in society. We don't put that test to education programs in general, but we do all of a sudden put that test on people in prison.
The second point is that when we take away people's liberty, we also have a responsibility to remember that they're citizens and that certain opportunities should be provided to them, even if it doesn't necessarily people in society a little safer.
The third thing I would like to say on this is that although some programs have been shown to be effective in correctional settings, there are two things about those programs. One is that they aren't invariably successful, and the second is that the size of the effect they have is not huge. That suggests it's a responsibility of corrections — in the case we're talking about here, Correctional Service Canada — to try and release people no worse off than they were when we went in. That's a pretty low bar one would hope, but it's not. You don't want to make them worse and you want to use opportunities to make them better.
Running custodial programs may not be the best place to run them. If you're interested in substance abuse, for example, which is a serious problem, you have to remember that people largely don't have access to the substances we're worried about. They don't have easy access to alcohol in federal penitentiaries. So you run a program and you don't really have the kinds of circumstances where you are testing people, where they are learning new skills and ways of abstaining from activities or substances that we don't want them to do.
I would look at this in a holistic way of saying, "Let's try to do the best we can at all levels.'' I'm not disagreeing with you, but if I had a million dollars to put into programs for people who have offended, who are under Correctional Service Canada, I would say, "What can I do with them in the community?'' Because 5,000 of them getting out every year is a substantial number of people. Some of them do not need help from us. Many, or perhaps most, do. Let's do things, whether it's providing housing for them or helping them get a job.
Take the housing example. Let's imagine that one of the things we do is to try to get people stable housing, and someone does an evaluation of this and says, "Ah, it didn't work, so we're going to cut out this program.'' From a correctional perspective that may sound good, but isn't providing public housing a good thing in Canada anymore? We are providing it to a group of people for whom other public housing has difficulty with. It is very difficult to house people who abuse substances, for example, and many shelters won't accept them. Well, maybe providing a shelter, even if it didn't reduce their offending rates considerably, might be of good value.
I go back to what was said before, which is that if you are going to intervene, the most effective interventions that we know of seem to be things which were good in the long term. One that was referred to by my colleague a minute ago had to do with early interventions in the health realm with at-risk mothers, for example. Before, when a woman would first find out she was pregnant, and then up to one or two years after the child was born, those were not developed or designed to reduce offending. Those were designed to improve physical and mental health, but largely physical health, so that a visiting nurse was going to these at-risk families. It also turned out that 15 years later, someone did a follow up and said that, lo and behold, it reduces their offending. If you started that at age 9, there wasn't a difference, so it would seem to me that one might also want to look at other beneficial outcomes.
Senator Andreychuk: I would like our other presenter to comment, because I am getting a little confused, Professor Doob. I agree that you start early and you don't target people who are going to turn out to be criminals. You help people who have needs, and that's all of us at some time, and some need more than others and there are predictors, and all that.
The dilemma is that we don't have enough of those services, so we use the judicial system. If they don't get the service they need, eventually they come into conflict with the law and then we have to pick them up there.
I agree over the long haul, but what we are looking at now is: What can we do? There is the broad issue, and I hope we address that, but then there is the specific. For those in the system, what do we do? Can't we at least attempt to do something for them and for society? It isn't a statistical thing. I find that in any preventative service, you can't prove that you were the reason for their success or their failure. What programs can we put out there that they might reach to?
Mr. Doob: As I said, it is one of the things that you do. For example, with sex offenders, there are sex offender programs which have been shown to be effective. There are other programs in corrections which have been shown to be effective. I think there's a responsibility to make those available, so don't get me wrong on that.
What worries me only in this context — and I know you weren't saying this — is if the focus is only on doing something while the prisoner is in prison, then we are missing the boat. We should take whatever opportunities are available, while the person is in prison, to look forward.
Let me give you an interesting example that we tend to miss. The Youth Criminal Justice Act — something you are very aware of — has fixed sentences, largely. It says that it's not even called a sentence of imprisonment; it's called a custody and supervision order. When handing down a custody and supervision order, it says right in the act that the judge must say, "You are going to serve two thirds of this sentence in custody and one third in supervision.'' So it says right off the bat, that's the way it's going to be. There are some exceptions, but basically that is the circumstance.
Then there is another requirement in the act which says it is the requirement of the custodial people to start reintegration on day one. It doesn't say day one. It says something like "the beginning of the sentence.'' The implication is that these young people will be released after some number of weeks, months or whatever, and it's in everyone's interest to start reintegration right then, immediately. That seems to be a mindset that we have for young people that we might want to think about for other people who offend.
Senator Andreychuk: Professor Doob, I have been around a long time. That is what I thought rehabilitation in adult sentencing was. There are all the other reasons you are there. You're there for punishment and protection of the public, but it was that we would start engaging with you on your release about how to become a citizen who is effective in the community and not in conflict with the law. We've lost that. I'm glad you pointed out that we still have some of that in the Youth Criminal Justice Act, but it is worthy to think of that.
Unless someone comes up with a different model — and that is what we will be studying — how do we deal with the long and short terms for the people who are trapped in the system now and are likely to reoffend if we don't intervene with something helpful for them and for society?
The Chair: Let us see what Professor Owusu-Bempah has to say about this conversation.
Mr. Owusu-Bempah: I agree with Professor Doob. Again, focusing so narrowly on what we can do in the institution misses the larger picture, and we always have to keep that in mind, especially if we look at the experience of life incarceration from a life-course perspective. Individuals who spend considerable amounts of time incarcerated have typically come from other forms of supervision, such as child welfare and the like. Their stint in prison is often not just four years, if we are talking federally, but they may have spent some time as wards of the state, under supervision of the youth criminal justice system, and then into the adult system. We need to think of this not only as the specific time this person is incarcerated, but as part of their life-course experience with incarceration.
In terms of the things being done, I think we need to consider the rolling back of some of the programs that happened under the Harper government. I am thinking here about work programs within institutions. If we think about some of the concerns we have had in other areas of society, like a shortage of individuals who can engage in skilled trades, why are we not putting two and two together here? Why are we not taking a sub-population of individuals who likely have low levels of educational attainment and low sets of employment-related skills, and other areas where we have shortages of people, to fill those gaps where we rely on immigration for higher- and lower-skilled occupations? Why are we not creating programming within institutions to allow individuals to get jobs on the back end of their stay?
As Professor Doob noted, we do see success in some forms of correctional programming, but a substance abuse program or a program for alcoholism behind bars is perhaps not overly useful. Likewise, anger management programs being used in institutions where there is a premium on violence may have some kind of limited success. However, if we think about not only rehabilitation in terms of fixing those problems, but also in helping people develop the skills they need to be productive members of our society, those are other areas we can look to as well.
The Chair: Thank you. Let's move on. We have a lot of professors here today, and they are fascinating specialists.
Senator Pate: I would like your guidance, Mr. Chair, because I have a couple of questions I would like to ask. Would you like me to wait for the second round?
The Chair: No, keep your thought going.
We have about 30 minutes left. It's a luxury to just have two witnesses. We normally have four and we're cramming them into one hour. I love the idea of a conversation going on, which is very important. We do have that time, so we will use it.
Senator Pate: Thanks to both of you, professors. I am pleased to have your expertise here, as we all are.
There are a couple of things that came up that I would like to ask you both to speak to. First, there was discussion of what I call the interpretation of the law versus policy. For instance, Professor Owusu-Bempah, when you talked about sections 81 and 84 not applying to Black or other racialized populations, in fact the wording of the legislation is that it does apply. It's a specific reference to indigenous prisoners, but in fact it applies across the board to all prisoners; it's just a particular emphasis. However, the policy Correctional Service Canada has developed limits it. So a common misconception is that when the policy limits the law, that's actually okay, when legally that is not okay.
I will add a couple of other things to it, but could you comment on how you see it playing out in light of what you've both spoken of?
As well, there is the manner in which the assessment process has been interpreted, and I am looking at Professor Doob in particular. Suggestions have been made by many over the years, particularly since the Corrections and Conditional Release Act, the CCRA, came into effect in 1992, that instead of looking at the classification process as a deficit model — that is, one that looks at people's deficits — that we look at needs that essentially get characterized as risks by Correctional Service Canada and assess resources according to the needs that could then be translated into risks, if you are following the logic that gets used. The suggestion is that instead of allocating resources to more invasive security measures, we actually allocate those resources to more progressive approaches of the sort that Senator Andreychuk talked about in terms of focusing on the rehabilitative nature — for instance, providing resources for housing, if that is a predominant issue, as it is in many communities; job training; vocational training, as Professor Owusu-Bempah also pointed out. The suggestion is to look at those sorts of mechanisms as opposed to thinking we have to change the law. Actually interpret the law as initially intended by those who drafted the legislation for consideration by both houses. I would be interested in your comments on that piece.
Another thing: You mentioned the Youth Criminal Justice Act. One of the provisions that is utilized — and, again, Senator Andreychuk brought our attention to — is that every other mechanism before imprisonment is supposed to be looked at and considered, and a judge is supposed to give evidence about that. If we were looking at any changes to, say, section 4 of the Corrections and Conditional Release Act, in addition to looking at least restrictive measures again, should we be looking at that kind of YCJA mechanism?
By way of comment, I would like it to be on the record that with regard to the stats that CSC has pointed out of $115,000 for federally sentenced men and $217,000 for federally sentenced women, the Parliamentary Budget Officer in 2010 looked at those figures and said it was more like $348,000 per year for federally sentenced women and didn't cost out men. In terms of figures and potential resources to work with, if we looked at section 81 and 84 being utilized, it could mean a massive difference not only for those individuals incarcerated but also the communities from which they come.
Any comments from both of you would be welcome.
Mr. Owusu-Bempah: I would like to thank you for pointing out the difference between law and policy. We did something similar with subsection 718.2(e)of the Criminal Code that applies to sentencing of Aboriginals and the ability of judges to apply that more broadly. Perhaps you have answered the question yourself or pointed to a solution.
In my opinion, the policy itself could be expanded. I have previously argued and suggested that 718.2(e) of the Criminal Code might be expanded to include African-Canadians. This has been argued in court, as well. I'm thinking of R. v. Hamilton. My suggestion would be that the policy be specifically changed to include the circumstances or considerations for African-Canadians.
Mr. Doob: Let me talk a bit about the assessment process. I have serious concerns about the way in which assessment is being made by Correctional Service Canada in general and with respect to women and Aboriginal women. I should preface this by saying that I didn't do an exhaustive search. In recently looking at their data and reports in terms of indigenous women, I had a hard time arguing that indigenous women were being disadvantaged over non-indigenous women because women themselves, overall, were being classified in I would say "an inappropriate way'' such that the whole classification process should be reviewed.
Part of that was implied by Senator Pate's question. If you look at needs and risks, you focus on risks rather than needs as soon as you do that. You get things like what sentence was given, does this person have a record of violence or a long criminal record — things of that kind over which they have no control and over which Correctional Service Canada can do very little.
If you ask where this person can benefit most or be harmed least by the system, it would seem to me that one has a very different kind of question. What you are looking at is how best to get this person back into the community. As I have said numerous times already, because they are going to be back in the community anyway, then we would approach it and allocate resources in a way that would be very different.
Taking the figures that Senator Pate just gave us about the costs of imprisonment of women, is this person really best managed — although I don't like that word — and reintegrated in prison, or is this person most likely to be reintegrated in a peaceful manner in a different way? If you have $300,000 per person, per year, to work on it, it seems to me it is a rather uncreative organization that can't do better than a prison with a wall around it.
My starting point would be to say that's what we are spending right now, and we do spend a lot, so why don't we think about how best we can do this? That means resources for housing, training and so on. It's those kinds of things.
There is one other thing we have to keep in mind. At the moment, with Correctional Service Canada being as selective as it is, we don't have any problem of people being released and recommitting offences while they are on parole.
I will give you one of these thought experiments. Roughly speaking, there are about 145,000 adults charged per year for violent offences. That's the background. In the most recent year for which we have data, how many people do you think had their parole revoked for a violent offence? You can say that's an anomalous year, so let's say in general over the last four or five years. How many people? There are 140,000 or 150,000 adults charged with violent offences. How many do you think had their parole revoked for a violent offence?
The answer is single digits. Last year it was zero. The year before it was five. The year before that it was seven. That's the number of federal full paroles revoked for a violent offence. We're talking single digit people. That's how risk-averse we are.
If we took more, and if we were concerned with not just what they did on parole but what they did in general, we would probably have a safer society by using our resources in a different way.
Senator Pate: Of the witnesses we have heard, for instance when Correctional Service Canada presented, and then the John Howard Society, former prisoners, the Union of Canadian Correctional Officers and the Correctional Investigator of Canada, on both of those days we heard almost diametrically opposed perspectives. I may have my own views about how that happens, but I am interested in your perspectives on how that is and what our committee can take from that.
Mr. Doob: Let me give you an example where there were more than zero people.
In 2013-14, 970 people completed full parole and five of them completed it by having it revoked. If you are at Correctional Service Canada and you recommended this person be released, or if you are on the Parole Board of Canada and you recommended them, you will think about those five. Those will be very salient in your mind. You will not be thinking about the other 965 people who successfully completed, and you will not be thinking about the 107 who you revoked because they violated some technical condition. You will certainly not be thinking of the 824 who completed without any incidents whatsoever. They are thinking about those guys, the bad guys.
Life isn't perfect. Somewhere in Canada today, somebody who has never been in contact with the criminal justice system, has never been in trouble before, will commit an offence. We don't like it, we don't have to like it and we shouldn't like it, but it's going to happen. We don't see that as a preventable thing.
My concern is that they would see those five as somehow preventable, but they are not seeing that the 824 might have not committed an offence because they were released on parole and had that reintegration. They are out of sight and out of mind, and good for them. But they are looking at — I don't even like the word "failure'' — those people who apparently did something bad while they were on parole. That is their mindset.
How could we have avoided those five? The easy way is just don't let them out. That's good until you think about the fact that warrant expiry exists.
The Chair: Mr. Owusu-Bempah, do you have something to add to this?
Mr. Owusu-Bempah: I think Professor Doob addressed that adequately.
Senator Hartling: Thank you very much, professors, for the interesting conversation. I appreciate you talking a lot about prevention, housing and the programs that are needed. I come from a background in community work, and we noticed a lot of rollback in programs at the community level. I agree with you saying that 15 years is a short time, so putting the money in is important, but prevention also isn't always measured and isn't a sexy topic.
Professor Owusu-Bempah, I am disturbed about the human rights issues and the overt racism. Do you have ideas or thoughts about the hiring practices? Are more diverse people hired? Is there any diversity training or any way in which people who have that kind of behaviour are taken to task about it? I think if you had different kinds of people working there with different skill sets, and even cultural diversity, it might be helpful, but I am not sure about that.
Do you have any thoughts on that?
Mr. Owusu-Bempah: That's a great question and one that has been hard to research given access to prisons.
First, we need to consider the context we are talking about. These institutions are far removed from society, so things that happen behind prison walls for the most part clearly wouldn't be acceptable in wider society. The general public, politicians and many academics tend to think that those types of behaviours perhaps even should or can happen behind bars. We don't like to think about prisons.
There are probably a number of reasons why this happens. There is an institutional culture, much like there is in policing, for example. We need to think about the types of individuals, as you have noted, who end up staffing these institutions.
If we look at policing, for example, police officers don't resolve issues of discrimination and injustice within policing. There needs to be real recourse for those who engage in those behaviours, but we know from the realm of policing that individuals often do not complain about their treatment from the police because of fear of recourse. This is in society generally.
If we think about that in the context of the confines of prison, I think it would be very difficult for inmates to complain about the treatment they receive at the hands of the people who have so much power and authority over their day-to-day lives. I have heard anecdotally, for example, of administrative segregation. I know it's not simple to put someone in solitary, but it's used as a means of disciplining offenders who have disrespected or mistreated correctional staff.
I haven't answered your question about how we solve this problem. Mechanisms need to be put in place to ensure that perhaps staff who overhear or see such behaviour have the ability to alert high-level authorities about the conduct of their colleagues. But the real difficulty lies in the context in which such behaviours are happening. And this is one that is far removed from general society and in which the people who are the targets of such behaviour have so little power and authority over their day-to-day lives; those are relinquished to the people who supervise them.
Senator Hartling: Do you have anything to add, Mr. Doob?
Mr. Doob: No.
The Chair: Before we close, one of the terms used in the prison system is "hardened criminals.'' Well, after a 20-year period there could very well be "hardened guards,'' which is not used.
Maybe this is not a fair question to you folks, but you probably know it. In Correctional Service Canada, are there programs that can work to help guards who you read or hear about? Even in the local jail here in Ottawa, it seems that every week something has happened with alleged abuse by the guards. There are some programs out there in the public service, people retraining, training up, and there are professionals who are doing that. Are we doing this adequately in our correctional system?
Mr. Owusu-Bempah: I don't know the answer to that. I am not sure.
Mr. Doob: I am afraid I don't either.
The Chair: Senator Pate does. We will close with Senator Pate, then. You put your hand up.
Senator Pate: Am I allowed?
The Chair: Yes.
Senator Pate: When Dr. Ivan Zinger was here, he referred to the climate studies. A number of reviews have been done on staffing by Correctional Service Canada. Part of the reason I asked is to look at things like the Quiet Rage and 13th. The challenge of trying to interfere with that culture is huge.
In fact, just this past weekend I was receiving messages from the Canadian Human Rights Commission and others about concerns around staffing. There are huge issues there and certainly there are supports available through employee assistance programs.
The Chair: It has been said that unions are involved as well .
Senator Pate: That's true, the Union of Canadian Correctional Officers attended here, and the climate studies would be useful to have a look at if you're interested.
The Chair: We should be exploring that. I think it's important. This has been a fascinating and important discussion we've had for almost an hour and a half. We don't usually have the luxury of doing this. We should do more of it because we get more out of you and we get more for our report.
We have an in camera session to attend to. Thank you very much, professors.
(The committee continued in camera.)