Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence - June 12, 2014
OTTAWA, Thursday, June 12, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which were referred Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders); and Bill S-221, An Act to amend the Criminal Code (assaults against public transit operators), met this day at 10:30 a.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
This is our second meeting on Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders). This bill would direct a court to consider imposing an order prohibiting some offenders from being within a specified distance of their victims.
It would also direct a releasing authority like the Parole Board of Canada to consider imposing certain conditions on the parole, temporary absence or statutory release of some offenders in order to protect their victims.
Finally, the bill would make it a mandatory condition in probation orders and conditional sentences that offenders not communicate with their victims or go to certain specified places.
Based on some of the questions yesterday, committee counsel expressed concern that there could be some confusion as to who this bill applies to. We wanted to make it clear that it applies much beyond offenders who have committed sexual offences against children. It goes much further than this, and when Justice officials are here, we can get some clarification. We just didn't want people to proceed this morning operating on that assumption.
Perhaps I can ask counsel — I know this is unusual — if he could expand on his understanding of the range in terms of who is covered by the legislation.
Robin MacKay, Analyst, Parliamentary Information and Research Service, Library of Parliament: I just wanted to clarify that the bill, in part, does apply to offences committed against those under 16, for example, the first part of the bill, dealing with section 161 of the Criminal Code. However, much of the rest of the bill applies to all offenders, with all offences and victims of all ages. For example, the bill will be adding, as conditions on probation orders and conditional sentences, conditions of non-communication and staying away from certain areas that apply across the board. As well, under section 133 of the Corrections and Conditional Release Act, on parole, for example, it will again apply to all offenders who've committed any type of offence under certain conditions.
I just wanted to clarify that the bill has, perhaps, a broader scope than was perceived during yesterday's meeting.
Senator Batters: Just to clarify, the section dealing with the two-kilometre geographic restriction is the part that applies just to sex offenders who commit acts against children. The remainder of the parts about communication and that sort of thing are the parts that are more of general application; is that correct?
Mr. MacKay: Yes, that is correct.
The Chair: We will begin with our first witness today, and we thank him for the rescheduling that occurred as a result of votes yesterday. He has very graciously accommodated the committee's schedule. Please welcome back, from the Parole Board of Canada, Harvey Cenaiko, Chairperson.
Welcome, sir. Do you have some opening comments you wish to make?
Harvey Cenaiko, Chairperson, Parole Board of Canada: Thank you very much, Mr. Chair. Members of the committee, good morning. I'm here to speak to you about a private member's bill, Bill C-489, and how it might affect the Parole Board of Canada.
I would like to begin by providing some context around the board's mandate. The Parole Board of Canada contributes to the protection of society by facilitating, as appropriate, the timely reintegration of offenders as law-abiding citizens. The board is an independent administrative tribunal with exclusive authority under the Corrections and Conditional Release Act, or CCRA, for conditional release decisions for federal offenders. The board also makes record suspension decisions and clemency recommendations. However, since this bill does not affect the Criminal Records Act, I will confine my remarks to the conditional release system. I will not be speaking to the Criminal Code amendments and will only deal with the CCRA.
The board's decisions are made in accordance with criteria set out in legislation and are based on a thorough and careful assessment of the risk an offender may pose if released under supervision in the community.
Board members make conditional release decisions based on information that comes from a variety of sources, including police reports, victims, the courts, Correctional Service Canada, psychologists and many others. The paramount consideration in every decision is the protection of society.
This bill is about the interests of victims and the rights of victims. In particular, it is about the setting of abstain-from-contact and geographical conditions on offenders while they are on release, which brings us to cases that come before the board where there is a registered victim.
At present, under the law, all offenders on conditional release must abide by a set of standard conditions designed to reduce their risk of reoffending. These include reporting to a parole officer, obeying the law and keeping the peace.
The board already has the authority, under section 133 of the CCRA, to set any special conditions that relate to a particular offender if there is information on file that indicates such conditions would be necessary for public safety and for the reintegration of the offender into the community as a law-abiding citizen.
Special conditions can include abstaining from the use of drugs or alcohol or avoiding certain persons, such as those involved in criminal activities. They can also include geographical restrictions, or "no-go zones," if you will, and orders to avoid contact with victims or others on file with the board.
However, the present section 133(3) states that the board "may impose." The draft legislation before us says: "The "releasing authority shall impose. . . ." That's a very important distinction between the two pieces of legislation.
The board regularly considers requests from victims for geographical restrictions or avoid-contact conditions when that information is provided or on file. It may happen that a victim and an offender live in the same city, and the offender's reintegration plan is based on treatment at a facility in that city. In such a case, the board may, for example, set a geographical restriction on the offender, preventing him from leaving a certain zone in the city, in order to respect the needs of the victim. In this way, the board does not reveal to the offender the exact location of the victim.
I'm proud to say that the Parole Board of Canada has been at the forefront of innovating in the criminal justice system to balance the rights of offenders with the rights of victims within the bounds of the law. For example, since 1982, the board has accepted victim statements. This has now been entrenched in law, following the passage of the Safe Streets and Communities Act.
At present, there are 7,829 victims registered with the board. Well over half of those, 4,100, are associated with some 1,809 offenders serving life sentences.
Victim statements can contribute to board members' risk assessments and may help them to determine any special conditions that may be necessary to protect society and facilitate the safe reintegration of offenders.
Under Bill C-489, if a registered victim has provided a statement, the board shall impose any conditions on the unescorted temporary absence, parole or statutory release of the offender that it considers reasonable and necessary to protect society and to facilitate the successful reintegration of the offender. This could include directing the offender to avoid having any contact with the victim, going to a specified place or area, such as playgrounds or schools, or staying within a specific area.
Importantly, should Bill C-489 pass, the board would retain its discretion as an independent tribunal to determine when to impose an abstain-from-contact condition. In cases where is there is a victim statement on file and the board decides not to impose an abstain-from-contact condition or geographical restriction, Bill C-489 would now require board members to provide written reasons to explain why such a condition was not imposed.
Last fiscal year, more than 10 per cent of the board's full parole decisions contained avoid-contact-with-the-victim conditions. Over the same period, about 24 per cent of the cases of statutory release that were referred to the board included avoid-contact conditions.
The careful setting of conditions is the backbone of the conditional release system. Our statistics show that the vast majority of offenders are completing their supervision periods in the community without reoffending. Last year, nearly 99 per cent of day parole and 97 per cent of full parole supervision periods were completed by offenders on determinate sentences without them reoffending. In addition, offenders who breach a condition may be returned to custody or see their conditions changed.
In closing, as an independent administrative tribunal, the Parole Board of Canada has long used its authority to balance the rights of offenders with the concerns and rights of victims. This is particularly true when setting reasonable and necessary conditions to facilitate the reintegration of an offender while protecting society and victims.
The special condition to abstain from having any contact with victims places the accountability on the offender not only not to have contact with the victim but as well avoid or abstain from any contact, so the burden is placed on the offender, not the victim.
Our mandate is public safety. When public safety is protected, we serve victims and all Canadians.
I thank the committee for its time and attention. I will now take any questions you may have.
Senator Baker: In other words, what you're telling the committee is that the provisions already exist that are being implemented by this bill, but they exist there as "may" instead of "shall impose"; is that correct?
Mr. Cenaiko: That's one change, yes.
Senator Baker: The other change is the business of providing written reasons. The bill as originally crafted by the private member in the House of Commons was substantially changed at committee stage to remove the requirement of the two kilometres. Is it two kilometres that's referenced?
Mr. Cenaiko: I believe it references what is going to be referenced in the Criminal Code.
Senator Baker: Yes, which you're not dealing with, but the bill was changed so that it said after two kilometres or any other distance specified in the order. In other words, the two kilometres, I don't think, has much impact in law because of the words "or any other distance specified in the order."
The other major change was the bill, in its original writing, provided that "If the court makes the decision described in subparagraph (2)(a.1)(ii), it shall state the reasons for the decision in the record." Prior to that, it said "provide written reasons," and it was withdrawn by the committee because the majority on the committee felt they couldn't require the court to give written reasons because it would encumber the court to do something that was not practical. That was the decision of the majority in the House of Commons. But they left your section here as requiring written reasons.
Is this a major change that you would have to give written reasons if somebody provided you with documentation requesting an intervention, and if you ignore it, you must provide written reasons for not ignoring it? Does that encumber the board?
Mr. Cenaiko: No.
Senator Baker: Why not?
Mr. Cenaiko: I think it's a very fair piece of legislation that respects the trauma and tragedy that a victim may have gone through during the commission of an offence. I think it is incumbent upon the board to ensure that in a registered victim's statement, they provide concern regarding their well-being and that the board respects that. This bill will ensure that board members in their decision making, if they're not going to impose the condition to abstain from having any contact, they will have to state the reasons why to the victim, and it would only be appropriate.
However, I can say that would be very few cases. I've been the chair of the board for five years. In a victim statement or at a hearing where they have presented, I'm not aware of any case where a victim was not provided some form of no contact.
Senator Baker: Yes, but if it were refused by the releasing authority — in other words, what you're saying is you can't recall, in your five years as chair of the board, of an instance when a victim has requested this be done and that the board has not done it.
Mr. Cenaiko: That's correct.
Senator Baker: In other words, there is no substantial change here at all.
Mr. Cenaiko: It places the onus on the board. It's legislation that says "you will."
Senator Baker: Which they did anyway.
Mr. Cenaiko: When requested by victims, and even if they weren't requested by victims, the board members themselves read over the police reports. They look at the tragedy. They look at the tragic issue, the trauma that the victim may have gone through, and they make that decision based on the offender's risk back in the community. If they feel there is any risk associated with the possibility of an offender coming in close proximity or harassing a victim, they place that condition on the offender at that point in time anyway.
Senator Baker: What can the victim do if the board refuses to impose the conditions and provides written reasons for not imposing the conditions? What is the recourse for the victim to that decision of the board?
Mr. Cenaiko: At this point in time there isn't.
Senator Baker: There is no recourse.
Mr. Cenaiko: However, a Victims Bill of Rights, Bill C-32, is in the process, and they will, according to the bill, have a complaint process which will be formalized for every law enforcement agency. The criminal justice system in general, including ourselves, will have to deal with a complaint process that will be legislated.
Senator Baker: In other words, there is no appeal.
Mr. Cenaiko: No, there is not.
Senator Baker: In the present context.
[Translation]
Senator Dagenais: Thank you, Mr. Cenaiko, for being here today.
I just have a quick comment on the conclusion of your presentation. You say that it is important to "balance the rights of offenders with the concerns of victims." Personally, I would say between the "duties of offenders," because they have a duty toward society, and the "rights of victims." I have some difficulty with the rights of offenders.
In any event, you said in your presentation that you do not give the offender the victim's geographic location. At that point, if you do not give the offender an idea of the victim's geographic location, what do you do to maintain the two-kilometre distance set out in the bill?
[English]
Mr. Cenaiko: The restriction we put on would be, for example, no contact with a victim, but it would mean not leaving the community of Kanata; so that way we're not saying where the victim lives, in Orleans or in Ottawa.
We want to ensure the protection of the victims, and we're not going to place the victim at risk by saying, "You can't go to Orleans." If you're providing a location for the offender somewhere in the area the victim would reside — we state that you can't leave the community in which you're residing on stat release or on day parole in a correction facility in a community.
[Translation]
Senator Dagenais: You also said that you make sure that the offender complies with the conditions you set. You undoubtedly know that I used to be a police officer and that I was in court one morning and the judge said, for example, in one case, that the offender was not to be in the Rawdon area. Yet, that very night, when I started my shift, I happened to see the individual on the sidewalk in the village of Rawdon.
Sometimes, people do not comply with the conditions because there is no supervision. Do you have ways to ensure that these people are complying with their conditions? We often hear that you do not have enough officers on the ground, and I also understand that you cannot have one officer for every person.
How do you ensure that these people are complying with their conditions? Especially in the case of sexual predators, because it sometimes seems that they have more difficulty understanding than others; I do not know why.
[English]
Mr. Cenaiko: I retired from the Calgary Police Service after 25 years. I know what you mean. The Victims Bill of Rights is one of the largest pieces of legislation I have seen in my 37 years of public service. It will be educational for the justice system and the law enforcement community. There will be a huge educational requirement in the future.
As you mentioned, the issue for us as board members is that in writing the special condition and imposing the condition on the offender, we're trying to keep him controlled in one area, and this is for his reintegration as a law-abiding citizen. If he goes beyond that and, in an example I used, if he was located by the police in Ottawa, then he would have breached his condition and would be arrested by the police.
Now the police have that authority. It just came in a year and a half ago, I believe, that the police can arrest, on a warrant, an offender breaching a condition. He would be arrested, put in custody, transferred back to CSC and another hearing would be held to determine whether his release should be revoked, cancelled and placed back in the institution. These options are all there now.
With the wording of "not to be," I think you mentioned Rawdon. The issue should be that you have to stay in this area. In our case, we don't want to advise an offender where a victim lives. They may know. They may be family; that's another issue. However, we want to ensure they don't get within that proximity.
This bill strengthens what is already in place. As I mentioned, subsection 133(3) states the releasing authority "may impose," where today it's going to say the releasing authority "shall impose."
Senator Jaffer: Thank you for your presentation.
In my professional life before I came here, I dealt so much with no-contact orders, and I am still concerned that we're adding all these additional things, but this is all about no contact orders. Whether I acted for the offender or victim, I always said to the offender that it's your responsibility not to be anywhere around the victim. It has nothing to do with the victim. You've committed the crime and you have to be away from the victim.
We don't live in silos. The person could be a family or community member. I dealt a lot with the same mosque, so the issue was you can't go to the same mosque where the victim goes, period. No contact.
When your officials tell somebody "no contact," do you explain to the person what no contact means? We had a compelling story yesterday from the sponsor of the bill where he was talking about this person living opposite the victim. Well, that's too close. To have this bill to deal with specific situations, it's good but it doesn't cover all. I want to know what kind of education you give to the offender before they leave as to what "no contact" means.
Mr. Cenaiko: The offender is in Correctional Service Canada's custody. They provide offenders with information in relation to preparing for them for parole, as we do as well. We provide offenders with booklets and information on how prepare for their parole hearing. They are aware that special conditions can be imposed as well.
These conditions aren't taken lightly. The condition is to abstain from having any contact, where the old one was avoiding contact.
I will read you the three. The original term "no contact" usually refers to an order under the Criminal Code, which Senator Baker spoke of. They might include a peace bond or restraining order decision by a judge or justice.
"Avoid contact" with victims is language the board currently uses when imposing a special condition on an offender's release to not have direct or indirect contact with the victim or a member of the victim's family. It places the onus on the offender to avoid the victim. For example, if the offender goes to a shopping mall and happens to see the victim, it is his or her responsibility to immediately leave or avoid contact with the victim. The offender would have to report this to his or her parole officer.
"Abstaining from contact" is the language used in this bill. It is my understanding that it refers to a condition that would again place the onus on the offender to abstain from making contact with the victim, including communication by any means, so it adds one more facet to the legislation we use. Now it's clean and clear. It's a very understandable and readable bill. In the legislation I have worked with in my 37 years, this is one of the easiest to understand.
Senator Jaffer: It's important and I accept completely that the offender stay away from the victim. But we also have to look at the long-term offender who hopefully will become a good citizen in the community. Will this bill in any way affect the offender being rehabilitated? What are the prospects of rehabilitation?
Mr. Cenaiko: Well, offender programming and supervision is handled by Correctional Service Canada.
Senator Jaffer: We haven't heard from them.
Mr. Cenaiko: I can't tell you how they supervise, but that is their role, case management and supervision.
Our role is to ensure the safe reintegration of an offender back into the community, but it also deals with respecting the rights of victims. Again, this legislation provides for rights for them but the Victims Bill of Rights is at second reading, I believe, or going to committee, which you will see as well.
Again, this is ensuring the balance between offenders' rights and the duty to be heard, the rights under statutory release to be released from an institution, as well as the rights to having a parole hearing when requesting, and now the right of victims. Victims do have rights in saying that they want to be protected. It's not every victim, but these are some of our statistics over the last three years.
Since 2011-12, to avoid victims, the number of times this condition was imposed on day parole was 198 occasions; last year it was 601. Three years ago it was 46 on full parole; last year it was 150. On stat release, three years ago we issued it 512 times; last year it was 1,503.
You can see that our statistics are using this special condition more and more to ensure the protection of society, the protection of the victim. As well, it is placing a restriction on the offender, but again our paramount consideration is the protection of society.
[Translation]
Senator Boisvenu: Welcome to the committee, and thank you for being here. It is really quite interesting to hear what you have to say. It seems to me that, historically, the Correctional Service of Canada and the parole board made social reintegration the priority, rather than the protection of society. We have all heard horror stories about criminals being released without much thought being given to the safety of the population, and those are people who committed horrible crimes
I have a long list that demonstrates that. The confusion in our system means that a privilege is considered a right. Requesting conditional release is a right, but having it granted is a privilege. When a privilege is granted, it is not a right that is being given; there are duties and obligations to fulfil.
Despite all the legislation we can adopt and can be used to move the victim back to the centre in the hearing process, in the context of the release process and victim protection, my concern is much more about how we are going to change the mentality of board members of the parole board so that they are concerned about victims and the safety of the population, rather than always focusing on the criminal's right to reintegrate and regain his or her freedom quickly.
You spoke about this balance between the concern for victims compared with that for the criminal, but what is your strategy to change the mentality in your organization?
Even today, I receive calls at my office from victims; victims associations still talk to me. This philosophical change to include victims in this process is not yet grounded in your organization. What is your strategy to make these changes?
We can adopt dozens of laws, but if the mentality within your organization does not change, I think it is a lost cause for the victims.
[English]
Mr. Cenaiko: An excellent question, Senator Boisvenu. It is education and it is the selection of the right candidates to be board members.
I implemented an additional piece of information when applying to the parole board to include a letter that states the work you either did with victims or as a victim. That is included with their CV or application form. It includes as well if you have worked with NGOs in relation to working with offenders. It is open to individuals.
It gives the selection committee, in selecting these candidates to move through the process, a clear indication of what their background may be in relation to having worked with victims or whether they have a clear understanding of how the criminal justice system has affected victims. That is one point that we are doing.
We try to include education, various components, and we have annual training. We were hoping to have some annual training on the Victims Bill of Rights. However, with the delay — it is in first reading — obviously we did not have the time to do it. However, I can assure you that in the training for all of our board members over the next year, one of the sessions will be on the Victims Bill of Rights as it moves through the House of Commons and the Senate.
[Translation]
Senator Boisvenu: On page 8 of your document, you say that in the last fiscal year, more than 10 per cent of the board's full parole decisions contained conditions to avoid contact with a victim. We are talking about 10 per cent of people released prior to statutory release, but at statutory release, that percentage is 24 per cent, two and a half times more. That means that those people represent a much higher risk of meeting their victims.
When someone is released on statutory release, do you have information only on the file of the offender being released? You are informed; Canada's correctional system is responsible for the release, not the board. When you receive the file of an offender released on statutory release, does the board review the decision? I am thinking of the case of Sandra Dion, among others. Canada's correctional system was ready to set up the offender a few hundred metres from Ms. Dion, even though he had said that he would attack her again. It was your board that reviewed the decision of Canada's correctional system and determined that he would go to Montreal, instead of a few hundred metres from the victim. In most statutory release cases, where there are a lot of requests to avoid contact with the victims, does the board review these files to determine whether victim protection was, in fact, considered?
[English]
Mr. Cenaiko: Senator, if there is a registered victim on file on a case and we receive the documentation from Correctional Service Canada, if there is a request or if the board member determines that there is a need for no contact or to avoid certain persons, then we'll look at it.
As a board member, I don't want to speak about one specific case. If we know where the victim is residing and we know where the treatment facility is or where the offender is going to be travelling to, sometimes that is included. It is not always clear which facility he might be getting treatment at on day parole. On day parole, we know he is going to be at this correctional facility, so we know that. However, on full parole and on statutory release, they are back at home, back in their own communities or back living with someone. If their spouse or the victim — that is what we have to ensure. Every case is different.
However, we do look at and review the comments from the victim, whether they are at the hearing or not, or if it is just an office review. I can assure you that we review victim statements because that is part of the risk assessment process. We reviewing all the documentation that we have from the courts, judges, police officers, psychiatrists, the CSC and from the programming within the institution. From all the information available to us, we base our risk assessment on those issues.
Senator Joyal: When you say that you are reviewing victim statements, does that mean that a victim only has the opportunity to file a written statement, or can the victim ask to appear and explain his or her case with the assistance, for instance, of a psychologist or somebody who is helping the victim to corroborate the psychological situation of the victim and how that should be taken into account by the parole board?
Mr. Cenaiko: The legislation now provides that victims can attend hearings. They can have their statement read, they can read the statement, they can have a video of their statement or they can appear in person. There is a program available through Justice Canada to provide financial support for a victim and an assistant to attend a hearing anywhere in the country. Depending who that assistant may be, that assistant would be the victim's person of choosing, whether it is a spouse or a psychologist. The psychologist can't provide additional support inside the hearing. However, the victim is there and can read her statement to the offender as well as to the board members making the decision.
Senator Joyal: To your recollection, do you have any information on the number of situations or cases whereby a victim has requested a non-contact order and the board would have refused it or the board would have tempered it to a point where the victim felt that she was not heard, according to her own perception?
Mr. Cenaiko: I am not aware of any. The only one that I am aware of was a situation that occurred where a victim threatened the life of the offender. In that case, the victim was not allowed to attend the hearing. However, that has nothing to do with abstaining from contact. This is the opposite, I think, of what you're saying.
I can definitely provide you any statistics that we may have, but as I say, I am not aware of it. If a victim asked for it, 99.9 per cent of the time we would have issued that special condition.
Senator Joyal: A victim that requests a non-contact order would be heard by the board.
Mr. Cenaiko: If they are at the hearing, yes, they would be heard by the board. If they are not at a hearing, their statements can be provided and can be played out on a video.
As well, even if it is an office review in the office, the victim statement is on file. I can assure you that board members read those statements in conjunction with all the relevant information that is provided in order to make their risk assessment of the offender.
Senator Joyal: In no case, to your recollection, has the board refused what the victim has requested in terms of a non-contact order from the Parole Board of Canada?
Mr. Spratt: Regarding non-contact orders, yes, that I recall. We can check and provide that to the chair, but I am not aware of any.
Senator Joyal: Yesterday we were told that 88 per cent of the cases of sexual assault on minors were perpetrated by someone within the family, 38 per cent, or somebody the victim knows. How do you manage those cases in terms of non-contact where the immediate family or somebody from the community is involved? It seems to me that those cases are much more difficult than others that don't involve a close relationship with someone the victim would be more likely to meet.
Mr. Cenaiko: Those are always serious cases to review.
Again, we would consider the wishes of the victim. If they did not want contact, obviously that would be part of the special condition. However, in some cases, after periods of time, the victim and/or the mother of the victim can still register as a victim. The victims may want to try to get their relationships going again. That has happened a number of times.
Senator Joyal: They would reapply to you for that. How does that work?
Mr. Cenaiko: They would have the restriction on the offender; it is on the offender, not on the victim. There would have to be a notation on the offender's file. The board would then review it, ensuring that there is a new victim statement and the request is going through appropriate channels. The board would review it to ensure that this is in agreement between both parties.
Senator Plett: I don't want to beat something to death here. I am very happy that you say you can't remember any cases where the board would not have honoured the victim's request for no contact. In your statement you said that in cases where there is a victim statement on file and the board decides not to impose an abstain-from-contact condition or geographical restriction, you have to provide written notice and you haven't done so. Can you think of a case where you would actually not honour the victim's request, because it does allow for that? Is there anything you can think of that would ever get you to not honour that request?
Mr. Cenaiko: Nothing that I am aware of now. As the vice chair in the Prairie region before being appointed chair five years ago, I did a number of decisions as well as the legislative duties of the vice chair. I don't recall ever — in some victim statements, depending on the seriousness of the assault or the crime that occurred and the trauma they went through, they may include some disparaging remarks. We have to tell victims, on occasion, that they can't use language of that nature in their statement. I am not aware of any where we've not included a request for that. However, this bill will ensure that if we did, we would have to give written notice.
Senator Plett: That would be little consolation to the victim. I am sure the present board feels much like you do and maybe like we do. Certainly I do not want to make any amendments, but you, of course, will not always be there. Somebody who comes after you might be a bit more lenient. I hope that is not the case.
We are quite big on not allowing the offender to know where the victim lives. In reverse, do we let the victim know where the offender lives so that she or he will ensure they don't walk into that apartment block? What do we do for the victim in that regard?
Mr. Cenaiko: No, the victim is provided with information. I believe under the proposed legislation they are provided with information regarding the programming of an offender in the institution, the release date, the releasing institution and a photo.
Senator Plett: But not where they live —
Mr. Cenaiko: No.
Senator Plett: — so that the victim will not, all of a sudden, by accident, walk by the front of the house. The offender is not allowed to leave the area but the victim is not restricted from walking into the area where the offender lives.
Mr. Cenaiko: I would have to get back to you on that. That would be something that CSC would be provided with in the legislation; but not that I am aware of. That is a good question.
Senator McIntyre: Thank you, Mr. Cenaiko, for your presentation. You have already covered a lot of ground, so I don't wish to repeat it.
My question is a follow up to Senator Baker's question regarding written reasons to be given by the releasing authority, the parole board or the head of the institution, in a situation where it decides not to impose conditions.
As you know, with Bill C-489 and under the Criminal Code, the court has to provide reasons to be stated in the record. With the releasing authority, how would the reasons be filed? I know that every independent tribunal has to file reasons for disposition, and normally those reasons are sent to all parties to the proceedings. Do you keep them, state them on the record or file them separately?
Mr. Cenaiko: That is a good question because, again, this will be new legislation. As I mentioned, I don't recall ever not imposing one where one was requested. I don't recall that.
In the future, if this bill is law, then obviously we have to make those written decisions and state them. The victim will have access to the decision through the decision registry, through the information they receive normally, or as they do now as well. It is speculative as to what will be included in those decisions because I can't say other than it would obviously say something to the effect that due to the offender going back into a smaller community, let's say an Aboriginal community, there may be issues in relation to why the abstain order might not fit in a small community of 140 people in northern Ontario or northern Alberta. It may not be able to be done if they are both going back to the same community.
Senator McIntyre: I assume that the parole board, like any review board, files disposition orders and reasons for disposition. Are those reasons for disposition filed with all parties of the proceedings, which would include the Crown, the head of the institution, the attorney representing the offender and the victim?
Mr. Cenaiko: Our decisions are open to the public. We have a decision registry where members of the public across the country can send a letter to request the decision of an offender. They will get that decision, the latest decision. They will get the next decision. They'll get the decision after that. It is available to every Canadian.
Senator McIntyre: Could you tell me more about the composition of the parole board? For example, what expertise do these people have to sit on the parole board? What is their background?
Mr. Cenaiko: About 25 per cent of them have a law enforcement background. About 25 per cent have a legal background, and about 25 per cent, right now, have a corrections background. The other 25 per cent is made up of individuals that have a teaching background, a psychology background, a psychiatry background. We have a couple who have backgrounds working with victims.
Senator McIntyre: Do former police officers sit on your board?
Mr. Cenaiko: Retired, yes; approximately 20.
Senator McInnis: Thank you, witness, for coming.
Senator Boisvenu got into most of what I'm going to ask you, but I just want to get your comments on this. The crime, normally, has taken place sometime ago, and the parole board or the institution concentrates, normally, on the here and now as to how to successfully reintegrate the offender back into society. Now we know that you will have to, when this law passes, place the condition of contact and going to a place identified in the condition. Is it fair to hear from victims and victims' rights groups that they are the forgotten people, that the justice system has not treated them fairly? Is that a fair statement?
You were mentioning training with respect to the board members. Do you, as a parole board, educate the public on what you do? Senator Boisvenu said it is pretty rampant out there that they feel they have been forgotten.
Mr. Cenaiko: Again, that is a good question. On a violent crime file that we are looking at, one of the most important pieces of the file that you go to is the sentencing judge's comments, which usually take place maybe one year or a year and a half after the offence took place. At the time of the occurrence, those are the most recent comments made by a judge in determining the sentence, which is very important because that occurred 15 or 20 years ago. It takes you back to that time of 20 years ago, to what the judge said.
Now, what has the offender done in the institution over the last 20 years? That is where we start to review what happened 20 years ago, reviewing the victim's statement. She or he may have more than one statement on file. They can have a number of them. They can submit them to the board, and every time, if it's a murder or a serious sexual assault, those statements are on file.
Those are all looked at, as I mentioned earlier, to assess the risk of the offender. You are looking at all of the programming he took during that time of incarceration. Was he a willing participant in programming? Did he actually complete his programming? Was he respectful to the staff in the institution, whether it was correctional officers or programming staff, teachers? All of those things have to be taken into account.
In relation to education and/or training for the public, we have a number of interactive videos on our website. If you are a victim, you can actually look at what a hearing would be like. We did that just in the last two or three years. We have done a number of other videos since I have been here, just to ensure that we can try to educate the public, victims and offenders.
Senator Batters: Thank you very much for being here, and thank you for your service with the police, as well as your service with the Parole Board of Canada.
Senator Joyal was getting into this a bit. When a victim makes a request, you were stressing with him the frequency of times that it is adhered to. I wanted to point out that one of the things I like about this particular bill is that it takes the onus off of the victim to make the request and instead puts the onus on the board in the circumstance that you are talking about. I submit that that is probably where it belongs. Victims have had enough to deal with, and that is probably where it belongs. I would just like your comment on that.
I appreciate you saying that, right now, if the victim's request isn't adhered to, there's no recourse for the victim, but the Victims Bill of Rights that the government has introduced would bring that forward. We are also looking forward to receiving and studying the Victims Bill of Rights, giving victims a better voice in the process. Could you comment on those couple of things?
Mr. Cenaiko: As you mentioned, the change in the wording in the present legislation from "may impose" to "shall impose" is a critical difference between what is in the legislation now and what is in the proposed legislation. As you say, that "shall" means you shall. It will be included if there is a statement describing the harm done to them or the loss suffered by them as a result of the commission of an offence. Then, the board shall impose any condition on parole necessary to protect the victim, which could include the condition of abstaining from having any contact with them.
It is a very important piece. As you say, it is driving that we have to. It will be clear for our board members if and when this bill moves forward. It will not cost us anything to train our board members. We can do that. There is no cost to this bill. Once it does go through, if and when it does go through obviously, we will be implementing the new legislation.
The Chair: In your opening statement, you talked about 99 per cent of day parole and 97 per cent of full parole supervision periods without reoffending. When you talk about reoffending, are you talking about committing another crime?
Mr. Cenaiko: Yes. During that parole release, so up to warrant expiry. We don't measure it after warrant expiry because they are not under us.
The Chair: Breach of a non-contact condition wouldn't be part of that; that is not a crime.
Mr. Cenaiko: A breach, no. No, it is not a crime. They could be rearrested. However, we don't include that as a crime because it could be that he was found in a bar drinking. It is not illegal to be found in a bar drinking. However, because that is a condition for him, he would be rearrested and taken back to the facility.
The Chair: I understand; I am just trying to relate it to your statistics. You said that last year more than 10 per cent of the board's full parole decisions contained avoid-contact orders. How does that relate to breaches? There is no statistic here that I see with respect to breaches of non-contact, and I gather there is no reporting obligation on the part of the police with respect to this sort of thing. Do you have any data on that?
Mr. Cenaiko: I don't, but we can get that for you, senator. We can get anything. I am not sure how many there are; I couldn't tell you. I don't think there would be that many, but we can get that information for you. This past year, we made 19,789 reviews. Each review may be for day parole and full parole or for reviewing a file on statutory release.
The Chair: I know there is authority for Correctional Services Canada with respect to electronic monitoring. Has the board looked at that issue? I know that in some U.S. jurisdictions an alarm goes off if you get within 500 feet of someone. The person can lock themselves in a washroom or whatever. Is there been any consideration to looking at that as an option as well?
Mr. Cenaiko: That is not part of our role; that is supervision.
The Chair: Should it be part of your role? I know CSC has that ability and they are not using it, as I understand it.
Mr. Cenaiko: It shouldn't be part of our role because our role is to assess risk, and CSC's role is to house and supervise offenders. We are the releasing authority to determine whether they are safe or a risk or whether we can safely supervise their risk.
The Chair: We can debate that one. We appreciate your appearance here today and your contribution to our deliberations.
Members, if you agree, we will move right into clause-by-clause consideration. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-489?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator George Baker (Deputy Chair) in the chair.
The Deputy Chair: Honourable senators, as you are aware, we are now moving to a different agenda item, Bill S-221, An Act to amend the Criminal Code (assaults against public transit operators).
Senator Runciman, the chairman of this committee, is the sponsor of the bill, so he's asked me to chair the remaining meetings that pertain to this bill. We now begin our first meeting on Bill S-221, An Act to amend the Criminal Code (assaults against public transit operators).
This bill amends the Criminal Code to require a court to consider the fact that the victim of an assault is a public transit operator to be an aggravating circumstance for the purposes of sentencing.
To introduce the bill to the committee, please welcome two witnesses: first, the sponsor of the bill, the Honourable Senator Bob Runciman, Chair of the Legal and Constitutional Affairs Committee; and from Metro Vancouver Transit, Neil Dubord, Chief Officer.
We will begin with Senator Runciman's opening statement.
Hon. Bob Runciman, sponsor of the bill: Mr. Chairman, and I want to thank you personally for your support in seeing this bill brought forward in a timely way. I will try to abide by the five-minute restriction that I try to apply to others.
This bill amends the Criminal Code to require a court to consider it an aggravating circumstance for the purpose of sentencing if the victim of an assault is a public transit operator engaged in the performance of his or her duty. In doing so, it adds a new section immediately after section 269 in the Criminal Code. The offences to which this new section would apply are 264.1(1)(a), threatening to cause death or bodily harm; 266, assault; 267, assault with a weapon or causing bodily harm; 268, aggravated assault; and 269, unlawfully causing bodily harm.
This new proposed section 269.01 also defines a public transit operator as an individual who operates a vehicle used in the provision of passenger transportation services to the public and includes an individual who operates a school bus.
A vehicle, for the purposes of this section, includes a bus, para-transit vehicle, licensed taxi cab, train, subway, tram and ferry.
According to the Canadian Urban Transit Association, there were 2,061 reported assaults on transit employees in Canada in 2011, with more than 80 per cent of those committed in-vehicle. I believe this number is on the low side because not all assaults are reported. In fact, not all transit systems participate in the annual survey conducted by the transit association. The number of attacks is alarming, as is the degree of violence.
I spoke at second reading of a Winnipeg bus driver who received a prolonged beating from a passenger upset over a bus transfer. In recent years, we've had drivers beaten with hammers, stabbed and knocked unconscious. A driver in Ottawa had a cup of urine thrown on him. Often the assault takes place when the bus is moving, which leads to a very dangerous situation. These attacks sometimes cause the victim to miss months of work, but the perpetrator often spends not one day in jail.
I want to talk about a particular case that took place in the Ontario Court of Justice in Ottawa earlier this year: The Her Majesty the Queen v. Patrick Guitard.
The decision was released April 16. Mr. Guitard pleaded guilty to assaulting bus driver Ian Hodge, and to breaching his probation. Prior to this incident, he had 17 assault convictions and two robbery-related convictions. In this case, the Crown attorney sought 18 months in jail followed by one year of probation. Counsel for the accused asked for one year in custody.
Justice David Paciocco instead sentenced Guitard to six months in jail for the assault and nine days in custody for the breach of probation. In his decision the judge wrote, and I am quoting here: "I will not consider the assault to be aggravated simply because the victim was a bus driver."
In my view, it is appropriate that an assault on a transit operator should receive special consideration. The driver is particularly vulnerable and an attack puts at risk his passengers, other motorists and pedestrians.
I would note that this is not an unusual approach. A majority of U.S. states have either specific offences or enhanced penalties for assault of a transportation worker. One thing that distinguishes Bill S-221 from similar legislative initiatives in Canada is that it includes taxi drivers in the definition of public transit operator. According to Statistics Canada, the homicide rate for taxi drivers from 1997 through 2011 was 3.2 per 100,000 working in the occupation, which is significantly higher than for police officers.
There are no solid statistics on the assault rate for taxi drivers, but the iTaxiworkers Association, which represents drivers in Ontario, has surveyed its members and found more than half of them report being assaulted while on the job. Taxi drivers work alone, most payments are in cash, they work at night and the customers they serve are not only unknown to them but are often impaired. It is an extremely dangerous occupation and that is the reason I included them in this definition.
In conclusion, I would simply like to say that this bill balances Parliament's right to provide direction to the courts with judicial discretion at sentencing. It is an approach that I think can have a meaningful impact on sentencing and provide protection to drivers and passengers alike.
Neil Dubord, Chief Officer, Metro Vancouver Transit: Thank you for the privilege of being a witness here today in what promises to be an important debate in providing safety, security and confidence to transit operators, the passengers and all those who share the road.
I have been a police officer for 28 years and was the deputy chief in the Edmonton Police Service before becoming the Chief of the Metro Vancouver Transit Police.
My objective today is to answer three questions in support of the Honourable Senator Runciman's Bill S-221. The first question I will answer is the why. Why is Bill S-221 necessary?
Let's walk through four very compelling reasons. The first reason is protection of the public transit operator. No one deserves to come to work and be assaulted. Public transit operators face this reality daily. There is an assault to a public transit operator in Toronto each day. The second reason is public safety, which is two-pronged: public safety of the passengers on the bus and public safety of people outside of the bus using the road. Be it pedestrians, cyclist, individuals or other motor vehicles, they are at greater risk when an operator driving a large vehicle is being assaulted.
The third reason is the trust and confidence of passengers using public transportation. When an operator is assaulted, the other passengers who witness the assault feel uncomfortable, anxious and lose confidence in the system. Municipalities across Canada are encouraging the use of public transportation for economic and environmental benefits. Without the confidence and trust of the passengers, public transportation will not continue to grow.
The fourth reason is recruitment and retention of competent operators. We know the job of a public transit operator is difficult and requires individuals with excellent customer service and communication skills. If we do not create a safe environment for these operators to work, we will not be able to recruit and retain competent and talented individuals.
The second question I hope to answer today is: What makes a public transit operator different than any other occupation or worker, nurses, doctors and teachers? Why do they need Bill S-221?
As mentioned previously, Toronto has a public transit operator assaulted each day. In Metro Vancouver, until the end of May, we have investigated 101 reports of assault or threats towards an operator. What other types of workplace experience an assault of one of their employees each day? I suggest if any type of occupation, such as a doctor, nurse or teacher, faced these kinds of numbers, it would be considered a crisis.
Why is it not a crisis in public transportation?
Public transit is differentiated from other occupations by the very nature that they serve a broad spectrum of customers including the working poor, homeless, addicted and those suffering from mental illness. As with other occupations, the opportunity for operators to disengage and extricate themselves from potentially violent situations does not exist. They cannot walk away or withdraw from the incident because they are locked in the driver's seat and operating a large vehicle. A pilot would never allow a passenger to freely walk into to cockpit of a plane and a ferry captain would not allow anyone onto the bridge of a ship. Public transit operators do not have the luxury of restricting access; their occupation is unique and the hazards they face are not experienced by other occupations. This is why they require the protection of Bill S-221.
The third question I will answer: Judges have the tools necessary to sentence offenders depending on the circumstances of the case, so why do they need Bill S-221?
The articulation of the working environment and potential risks faced when a public transit operator is assaulted is often not shared with judges for their consideration in sentencing. The vulnerable and defenceless nature of the public transit operators and the impact of an assault are not communicated, resulting in sentencing that is inconsistent.
For example, every public transit operator I have had the opportunity to speak with indicates they would rather be the victim of a minor physical assault than be spit on. The psychological impact, disrespect, embarrassment and contempt of a spit is seldom considering in sentencing. Often, cases of expectorate receive relatively minor sentences yet they have significant impact on the operator.
In conclusion, of the 101 cases of operator assaults or threats investigated in Vancouver in 2014, 51 have met the threshold for a Criminal Code offence of an assault.
Metro Vancouver experienced a 9 per cent increase in assaults in 2013 over 2012. Of the 134 assaults in 2013, 68 were physical assaults; 56 involved expectorate; and 19 of those spits were in the face of the operators. As you have heard previously from the ATU, they believe the important piece missing in reducing public transit operator assaults is a strong deterrent. Despite years of increased efforts by the transit industry to reduce the number of assaults through training, real time support and the installation of cameras, the attacks continue to rise.
Today I have given you four reasons why Bill S-221 is critical to the safety of public transit operators, the travelling public and the confidence and trust of the community. In addition, I have answered two common questions that have been known to become barriers in the past.
You possess the power and authority to take action. The Senate has a reputation for being able to get things done.
Victor Hugo once said a good idea has seen its time. The time is now for Bill S-221.
If I can add one final comment, what makes this bill slightly different than other types of bills is, first, it doesn't put judges in a corner with regard to mandatory sentences. It provides an additional mitigating factor for them to consider in a public transit operator. The second piece that makes it different in this bill, as compared to other bills that have come forward, is the fact that the definition of a public transit operator is quite different than what it has been in the past. It includes taxicab drivers, who face significant risk, ferry operators and school bus drivers, which I think is an important piece of that public transportation operator definition.
The Deputy Chair: We will proceed to cross-examination of your statement.
Senator Jaffer: I want to start off by congratulating Senator Runciman for this bill. I come from British Columbia and I certainly share what Mr. Dubord has said, seeing our taxi drivers and bus operators facing challenges every day, and with very little protection. I want to congratulate Senator Runciman and welcome you today to the Senate.
I have two questions and I will start with you, Mr. Dubord.
Bill S-221, as you and Senator Runciman stated, introduces aggravating factors to assaulting taxi drivers, bus operators. Do you think there are additional measures we should look at a later date that would protect the people you work with?
Mr. Dubord: I think the protection of public transit operators is a multi-pronged strategy. One piece of that is the sentencing and large overt statement and public declaration that we won't tolerate this anymore. I think that's what Bill S-221 attempts to accomplish, in addition to providing aggravating circumstances and some sort of consistency across Canada with regard to sentencing.
As far as other particular modifications to legislation or additional new legislation that could be created, I haven't given much thought to it. On the preventative edge, we continue to try and train our operators in defusing skills, how to deal with mentally ill or addicted people. We know that a high percentage of our offenders are either addicted or mentally ill. We continue to try and educate them in defusing and crisis intervention skills to allow them to manage more successfully when they are face to face with a dangerous offender.
As far as additional legislation, I couldn't comment on that.
Senator Jaffer: Senator Runciman, I appreciate you adding taxi drivers. I have a person working for me. Last night she said to me that she will listen to you carefully because the family worries every day when her father goes to work. You are obviously sensitive to these issues.
You said that you included trains and ferries. One group you have not included is passenger flights, which of course is another form of public transportation. Do you think we should include passenger flights? Were there any policy reasons why you didn't include them?
Senator Runciman: I consulted fairly broadly on this. Originally I gave a statement in the Senate last year, when I was concerned about a sentence meted out in Ottawa whereby a driver was assaulted on a bus and then dragged out onto the street and viciously assaulted. The perpetrator did not serve one day in incarceration. I gave a statement that day. Shortly thereafter I was contacted by the transit workers' union, which was the catalyst for this. Before jumping into it I consulted fairly broadly with a former Crown attorney, a former chief of police and a number of others as well. There was unanimity that we should take a look at taxi drivers because that is a dangerous occupation as you indicated. They face a much greater likelihood of homicide than police officers.
Airlines were not part of the conversation, primarily because, as I understand, with virtually any airline the folks who are driving the plane are in a fairly secure area. They are not easily accessed by passengers and are not in the role of taking transfers or payment from the travelling public. I think there is a clear distinction in terms of the potential risk.
Senator Jaffer: Thank you.
Senator Frum: Senator Runciman, I congratulate you for this important bill and I look forward to seeing it passed.
In the example you gave us, the Crown sought 18 months in jail and the judge gave 6 months with 9 days in custody. If this bill were law, with the aggravating factor, what kind of increased penalty would you deem reasonable or would you expect to see?
Senator Runciman: There is no guarantee there would be anything different, but there would be an obligation on the court to consider that as an aggravating factor.
The chief and I were talking about it earlier. His hope is for more consistency right across the country as a result of this. Right now you see a number of strange cases, like the one I cited, and a number of others where more appropriate penalties are imposed. The hope is that there will be consistency and that the sentences will reflect more accurately the gravity of the offence. In many instances, that is not the case today.
Senator Frum: Mr. Dubord, does it tend to be repeat offending. Is it the same people over and over?
Mr. Dubord: We tend to deal with a small percentage of offenders the majority of times. There are repeat offenders. We have a strong repeat offender program where we monitor closely people who have threatened bus operators or other public transit operators. We follow up closely with their curfews and conditions to ensure that they're abiding by them to try to prevent the risk of them reoffending with public transit operators.
Senator Frum: Was repeat offence considered to be an aggravating factor for sentencing?
Mr. Dubord: I can speak more generally. When Crown considers what kind of sentence they would like to put forward for a suggested sentence to the judge, often they don't have the circumstances and the environment of the bus operator or the transit operator. I often do a demonstration in public presentations. I bring someone to the front and put them in a seat similar to what we are sitting in today and have them put on a seat belt. I have a steering wheel in front of them, a steel wall in back. They have a mobile data terminal and a fare box. Then they have a person standing overtop of them in this position of power. They are concentrating and trying to focus on driving a 10-ton vehicle 60 kilometres per hour with 40 persons on the bus while this person tries to talk to them.
We recently dealt with a significant sexual assault of a female bus operator who was driving down a freeway at 70 kilometres an hour, two people on the bus at the back, on smart phones. The person at the front was intoxicated, so he did the right thing by taking a bus instead of driving. He put his hand on the shoulder of the driver as she continued to drive and then he began to grope her. By the time she was able to pull the bus over and open the doors, the person ran off. There is still an outstanding suspect on it. The circumstances of the environment is not communicated well to the prosecutor and the judge, so when they consider mitigating circumstances, all those environmental factors are not being considered, which impacts sentencing.
The Chair: You meant aggravating factors.
Mr. Dubord: Yes. I'm sorry; my fault.
Senator McIntyre: Thank you both for your presentations. Senator Runciman, congratulations for bringing this bill forward. I find that it fits well with Bill C-444 on impersonating a police officer. In other words, it brings in the aggravating factor situation.
I am sure you are aware of a private member's bill, Bill C-533, which was introduced in the House of Commons last June by Member of Parliament Ralph Goodale. The bill seeks to amend the Criminal Code, protecting public transportation workers. MP Goodale's bill would require the courts to take into account for sentencing purposes as an aggravating circumstance the fact that the victim was at the time of the commission of the offence a person employed in a public transportation service carrying out his or her duties or a person acting in aid of such a person. To date, this bill has only had first reading in the House of Commons. How different is your bill from MP Goodale's bill? I know your bill includes only public vehicle operators.
Senator Runciman: There are a number of differences. His bill amends the general sentencing provisions under a different section of the Criminal Code. We opted not to do that because we are trying to deal with a specific offence that we are attempting to deter. We tried to place the amendment closest to the designated offence rather than under the general provision. That is one element of it.
The other distinction is in terms of the definition of "public transit operator." This was based on consultation and advice that I received. Certainly, the inclusion of taxi drivers is significantly different from Mr. Goodale's. In terms of definitions and the way that we have proposed amending the Criminal Code, those are the clear distinctions.
Senator McIntyre: Do you think it should have included support workers?
Senator Runciman: No, I do not, because I do not think there is the same risk associated with support workers and a broader risk as well.
[Translation]
Senator Boisvenu: First of all, congratulations, Senator Runciman, for the work you have done on this bill. I think it is important because every week in Quebec we hear about cases of violence against taxi drivers at night. The taxi drivers often want civil regulations or tools for protection, including surveillance cameras, to be implemented, but it is very difficult to get that kind of tool. These people are often left to their own devices. The Criminal Code should be stricter.
Senator Runciman, could you tell me why we did not take the same approach as the one adopted to protect military monuments, where sentences are increased based on repeat offences?
Mr. Dubord, you said that it is a small percentage of offenders who attack taxi drivers or bus operators repeatedly. Why is the approach not to determine a first, second and third repeat offence and have the sentences get gradually stricter, rather than let the judges determine the sentence? We often see that the sentence is harsher for the first re-offence than it is for the third. The message being sent to offenders is that the more offences they commit, the lighter the sentence will be.
Senator Runciman, why not take the same approach as for the military monuments, where there is a progression in the sentences or fines?
[English]
Senator Runciman: It was certainly a consideration. I was looking for something that hopefully would address the broad concerns and, hopefully, something that I could achieve consensus with in terms of support. As the chief indicated, he felt that that element of my bill was very positive in that we didn't put the court in a corner, that they will have discretion but that they will now have this obligation to take this into consideration.
I think doing what you suggest would have some benefit, but I think it would have been significantly more controversial and more difficult to do what we want to do here, which is to have a real impact. I think not just getting it through the Senate but also getting it through the House of Commons again would be much more challenging. In terms of the stakeholders that I have spoken with and the people that I consulted with, they all recommended this as the appropriate approach to take.
[Translation]
Senator Boisvenu: Mr. Dubord, of the 2,061 cases of assault, do we have an idea of the number of perpetrators who were convicted, compared with those who did not receive a sentence?
[English]
Mr. Dubord: I can comment on the number of perpetrators that were actually charged. Our percentage of charge rate on the operator assault issue is somewhere between 21 to 23 per cent for all of the assaults. Those are the numbers charged; the conviction rate is lower than that still.
Senator Batters: Thank you very much, Senator Runciman. Congratulations on a well thought out and researched bill that addresses a significant problem. When I saw the fact that the judge in R. v. Guitard case noted that the Criminal Code does list certain groups for which the seriousness of an offence is aggravated and that bus drivers are not one of those groups and that he used that as a reason to decline to consider it being an aggravating factor in sentencing, I thought that clearly this is something that we need to make a change to.
I appreciate the fact that your particular bill, unlike past bills that have been brought forward, including Ralph Goodale's, includes taxi drivers. In Regina, in particular, my hometown, I know that people assaulting taxi drivers has become a real problem. Can you explain to us why public transit operators, as has been defined in the bill, are particularly vulnerable?
Senator Runciman: Perhaps the chief can do better than I can, but I will take a crack at it. I do want to mention taxi drivers because the reaction to the tabling of the legislation from the folks that I have talked to in the industry, owners and operators, has been emotional, I have to say. They are so affected by the fact that we are attempting to do something for them. It is truly appreciated. I think, in many respects, they think they are ignored in terms of their personal safety. There's the fact that a lot of charges aren't laid in those situations; there are no witnesses, that sort of thing. They really feel that this is an initiative that they are very thankful that the Senate is undertaking on their behalf, as they see it.
As the chief indicated, one individual was sexually assaulted with 40 passengers on the bus. We had a situation in Ottawa, as well, where a driver was pushed and shoved and started to be punched and swerved into oncoming traffic. Fortunately, there was not another vehicle, but in those situations, it is not just other vehicles but also people on sidewalks, pedestrians, for example. If an operator loses control of a vehicle that he or she is responsible for, we could see significant injury, if not death. I think the circumstances that these folks work under and the risks associated with their occupations are significant. The courts in too many instances have not recognized that. We are hoping to encourage them to not ignore that in the future.
Senator Batters: In a way, they are isolated in how they are able to protect themselves. Yet, at the same time, they are very accessible to those who would potentially do them harm.
Mr. Dubord, thank you very much for your very compelling testimony today. I thought that you gave us some excellent things to think about, and you even quoted Victor Hugo, which takes some doing. You mentioned briefly that you prefer this particular bill to others that have been brought forward in the past, such as the bill before the House of Commons, Ralph Goodale's bill. Can you particularly draw out the differences that you prefer in this bill as opposed to Ralph Goodale's bill?
Mr. Dubord: I think that one of the barriers other bills have had to getting through the House of Commons has been the fact that there has been an associated penalty, a minimum or mandatory penalty associated with that. That is seen as a restrictive type of legislation. As a result, it tends not to get the broad-based support you need to be able to move something forward. That would be the first piece.
The second piece is that it broadens the definition from a bus operator to a public transit operator, which does include taxi drivers, ferry drivers and school bus drivers. With that broader base, I think there is stronger support for it.
I think you mentioned isolation with regard to the bus operators feeling a sense of isolation. There is also an expectation of bus operators or public transit operators being able to collect fares and being able to deal with bad behaviour that happens on a bus. When you have a bus full of 30 or 40 people and someone is acting out, whether it be from a mental illness, intoxication or some other disorder, the bus operator is often expected to do something. We know that 30 per cent of the time the assault arises as a result of a fare dispute, asking someone to pay a fare, or dealing with bad behaviour on the bus, conduct that is unacceptable on the bus. The bus operator steps up to stop that conduct and ends up being assaulted as that happens. I think this particular bill has the potential to move forward. In addition, I think that it separates itself from other occupations, that is, the argument that teachers, doctors, lawyers and whatever other occupations may require that some sort of aggravating circumstances be inserted around their occupation. I think it eliminates that as well.
[Translation]
Senator Dagenais: At the risk of being repetitive, I would like to congratulate Senator Runciman for this bill which, I believe, is very important.
My question is for Mr. Dubord. Certainly, you are aware that some taxi drivers equip their vehicles with grilles to protect themselves. We have already talked about airline pilots, and metro drivers in Montreal are in separate cabins. I have seen drivers of articulated buses separated in a sort of Plexiglas cage. Do you think that you will have to make that kind of decision one day? You have been a police officer. Things have changed a lot since then, and surely you know that all patrol cars are now equipped with grilles. Have you thought about isolating drivers for their own protection?
[English]
Mr. Dubord: That is a great question. Thank you so much. The shields, with regard to bus operators, are certainly a common trend that we are seeing in the United States.
At this point in time, the UNIFOR union that represents transit operators within the Lower Mainland of Vancouver has had a vote with regard to whether or not they would like the shields installed on their vehicles. The vote was that they did not want the shields. They felt, given the relatively small number of people who are assaulting operators, that it cut off the best part of their job. The best part of their job is the customer service that they provide to the regular customers that they see on their routes each and every day. They wanted to be able to maintain that level of dialogue with their customers with face-to-face contact, and the shields wouldn't allow them to do that.
There was conversation around having a swing-door shield, one with a lower piece and an upper piece. There was discussion with WorkSafeBC, WCB or occupational health and safety around whether or not, if they install the shields, it is then mandatory for them to be able to use it. They shouldn't have the option to be able to leave the shields open.
There is a great debate going on regarding the shields themselves and what it does for the sense of community that is in public transportation. As far as protecting the operators, they do protect them. That is one environmental-type factor we could install on buses to ensure those operators are protected, and then they are truly in a small form of a jail cell.
[Translation]
Senator Dagenais: The bill obviously aims to prevent these incidents from occurring repeatedly because, given the light sentences, people are likely to repeat this kind of attack.
We must mention the work of the police officers who have to intervene, investigate, and arrest the individuals time and again. It is a cost to society, but there is also the amount of work involved for the drivers, police officers and others.
Mr. Dubord: Absolutely.
[English]
Senator McInnis: I have nothing profound to offer. I wanted to take the opportunity to thank Senator Runciman for what he has done here. This displays the great use of senators and the work that they can do.
This would appear to be an obvious bill, yet it took you making a speech in the Senate, as I understand it, after a horrific situation where a transit driver was assaulted. So, it took that. We just completed Bill C-489 where a situation had to take place in Langley to bring forward a certain law that would make sure the judiciary put certain things in place.
You have to ask the question: Where were the Criminal Lawyers' Association and the judiciary, who meet on a regular basis with local Attorney Generals, Ministers of Justice or the federal Justice? Why wouldn't something like this have come up?
I am glad you added taxi drivers. It is an extremely dangerous job, but how many other situations are out there that it took this — a horrific crime — to get you to do it?
Senator Runciman: That is a pretty challenging question to say the least.
With respect to addressing the situation of assaults on bus drivers, I understand that over the years a number of private members' bills introduced in the other place have not moved through the system for whatever reason. The fact that I was inspired, if you will, by an assault and the way the courts dealt with it in Ottawa I think is good. I am not looking at this from a personal perspective, but as you and Senator Jaffer said, it is a role that the Senate can play.
In certain situations, we have an opportunity — I will frame it that way — because of the numbers in the Senate and I think a more collegial approach to legislation in the Senate. If you look at the lottery system in the House of Commons, where you can introduce a piece of legislation but it could be years before it ever sees the light of day, we have opportunities to deal with it in a more timely fashion, especially if it is a significant issue. We can usually garner support across the aisle. From the Senate perspective, when we are talking about sending a message to Canadians that we can do a good job on their behalf, I think this is an example where we can fulfill that role.
The Deputy Chair: I want to note that Senator McInnis is a respected member of the bar and his momentary criticism of legal authorities is forgiven.
Senator McInnis: I meant it in a general sense.
The Deputy Chair: Exactly, and I fully agree with everything that Senator McInnis said on this issue.
We checked Bill C-533 in the House of Commons and it bears no resemblance to the bill that we have before us, in that the bill before us makes definitions, defines the issues and is restricted to public transit operators. As the chair pointed out, the other bill deals with persons who work in the system and those who work in support of those who work in the system. It's a completely different emphasis.
We congratulate Senator Runciman. I also want to point out that Senator Runciman did an excellent job. Prior to introducing this legislation, he visited persons on each side of the chamber to make sure that this bill would receive speedy approval. I don't know of any senator who has any opposition to the bill as put forward by Senator Runciman.
We want to thank our witness here today. Chief, you have done an excellent job in presenting the case for the approval of this bill.
Mr. Dubord: Thank you.
The Deputy Chair: With that, if there is no other business, the meeting stands adjourned.
(The committee adjourned.)