Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence for February 13, 2008
OTTAWA, Wednesday, February 13, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, An Act to
amend the Criminal Code and to make consequential amendments to other acts, met this day at 4:02 p.m. to give
consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and
Constitutional Affairs. Today, we are continuing our study of Bill C-2, an act to amend the Criminal Code and to
make consequential amendments to other acts.
We have with us as our first witnesses today, Mr. Irvin Waller, Director of the Institute for the Prevention of Crime
and from the Canadian Criminal Justice Association, Mr. Tim Stuempel, Chair of the Policy Review Committee and
Ms. Stacey Hannem who is a member of the Policy Review Committee.
Irvin Waller, Director, Institute for the Prevention of Crime: I will speak in English; however, I am happy to debate
questions in either language. You should have received a package in either English or French. There is a copy of a brief
in it and I will be speaking to that today. The brief is available only in English.
I endorse Parliament's concern to tackle violent crime. However, I want smart investments by all orders of
government in prevention, not just interminable debates on Criminal Code amendments.
I am asking you, in this brief, to go back to the House of Commons with the recommendation that all political
parties look at what works, what does not work and what they should be doing urgently that will reduce violent crime
on our streets, in our homes and in our schools. I mean really tackle violent crime.
The brief basically says that this country could become a world leader in reducing violent victimization by putting to
work the knowledge we have about what works and that is not the majority of the material in Bill C-2.
I want to see us go beyond amendments to the Criminal Code and interminable debates about those amendments. I
want to see us go beyond more police officers to invest in a smart and sustained way of tackling the roots of violence. I
want us to engage all orders of government, education ministries, social services, public health, policing and others in
tackling the multiple causes of violence. I want to see action by this Parliament and our provincial governments that is
consistent with the evidence and international consensus about what reduces rates of violence. I want to see that
Bill C-2, billed as tackling violent crime, lacks the key ingredients to make any significant difference to the safety of
Canadians on our streets and in our schools and homes. I am very concerned about the rates of violence in Canada.
Whether these are going up or down is somewhat irrelevant to me because they have nothing to do with what we do in
amendments to the Criminal Code or in criminal justice in this country.
We are left with too many victims and we need action on that. Approximately half a million women will be victims
of sexual assault this year. Half a million persons will be victims of car theft or break-ins to cars. Half a million people
will be victims of break-ins or attempted break-ins and that is not talking about the 500 or 600 people who are
murdered. We need action that will work.
I know that other presenters to this committee will help you tidy up any weaknesses in the bill and return it to the
House of Commons. However, I hope you will make strong and unambiguous requests of the House of Commons,
including all federal political parties. You have to remember that Bill C-2 was adopted in the context of the Boxing
Day murder of Jane Creba. All three political parties in Ontario adopted the same attitudes that are reflected in Bill C-
I want you to ask them to take real actions that will significantly reduce violent crime in Canada and stop the loss of
blood on our streets, in our homes and in our cities. I want this to go from Toronto, which is where the headlines are,
to Iqaluit where the problems are much more serious, from Halifax to Vancouver, from Winnipeg to Edmonton. I will
have more to say about Edmonton in a moment.
There is no longer any excuse for the House of Commons or for the Senate committee to lag behind in policies to
prevent violent crime. On November 6, the government of Alberta led boldly when it said the solutions to crime were
not just tough on crime but also tough on causes, and that they would begin immediately a three-pronged strategy of
enforcement, prevention and treatment. That is what we need in this country. In my view, the order in which they said
that — enforcement, prevention and treatment — is probably not the order in which they will invest their money. It is
prevention where the majority of that money should be going, whereas, it will go early on to more police and to
In the few minutes I have, what I want to tell you is that it is possible to do a lot better than we have done so far in
this country. Let us look at Boston. In the mid-1990s, where without dangerous offender legislation or changes in
minimum penalties or gun control legislation or any of the things we see in this bill, they stopped dead the street
murders of young people under 18. There were no more. They reduced the deaths of older men involved in street gangs
by 50 per cent to 60 per cent. How? It was done through smart policing, smart prevention.
They only made one mistake, which is that they did not make those actions permanent. We could do the same in
Toronto, Winnipeg, Regina or Vancouver; and we could do the same by getting that sort of action from the Parliament
As some of you know, I have spent nearly 40 years in Canada working professionally on crime issues. I have studied
the effectiveness of the prison parole system; I have influenced parole policies; I have been with the Solicitor General of
Canada before Senator Fox came in; I have worked on the dangerous offender legislation; I have worked on the gun
control legislation; and I have worked on the peace and security package. I have also had the privilege of doing this
work in over 40 different countries, including working with Nelson Mandela. I have worked on a U.S. commission and
worked with Tony Blair, who, more than 10 years ago, instead of introducing a bill like the one we have in front of us,
introduced a bill called the Crime and Disorder Act, which actually dealt with trying to reduce crime and disorder
instead of just discussing penalties. In that act, Mr. Blair created the Youth Justice Board, a board whose role it was to
shift funding from police courts and corrections because the audit commission had said this was misspent money on
youth. Instead, it was shifted into programs that had to do with diversion, yes, but more than anything with
Seventy-two programs that were put into the worse areas of England by that board resulted in 50 per cent to 60 per
cent reductions in the involvement of those youth in crime. It is yet another example that we could be using here.
I think the main impediment to seeing effective legislation in this country is lack of information. Therefore, I spent
the last two or three years writing a book for you, for concerned citizens, for legislators across this country and, by the
way, for legislators in the United States. It is called Less Law, More Order and I will be giving the chair of this
committee a copy. I would be happy to arrange for other copies for people who are interested. It is short; it can be read
during a flight between Ottawa and Vancouver. It talks about the truth about reducing crime. It is extraordinarily
critical of the U.S. policies to increase police and three strikes. The dangerous offender legislation in Canada that you
are looking at is not three strikes, California style. It is very critical, if we went that way.
The book is not just critical. It looks at the reports from the U.S. National Academy of Sciences, from the World
Health Organization and from the United Nations, and bases a series of recommendations in the recommendations
that come from those bodies. It is not based just on individual research opinion; it is based on a consensus that has
grown substantially in the last few years.
Basically, this book says that there are many things like Boston, like the youth inclusion projects that work. We
could be doing things like those cities that have significantly reduced violent crime — some of them in England and
Wales. It proposes a blueprint for what we should have in front of the House of Commons and this Senate to deal with
I have also, in my brief, talked about the work of my institute. We brought together a national working group to
compare the knowledge we have about prevention with what is going on. It included the chiefs of police, the
municipalities, the victim groups and the offender groups. One of the persons from the John Howard Society will be
talking to you later.
We had to reach a consensus in that context about what should be done, and the consensus is very simple:
Prevention works, and we should be investing in it in this country around an action plan that involves all levels of
government. We should be helping municipalities — some are already doing it but many more could be doing it — to
get the funding to get the focus on where they can make a difference.
We need better data. I know the Minister of Justice is committed to victimization surveys, but I want to see those
every year and I want to see them as the measure of the outcome of bills like this. I want to see surveys on the violence
against women also.
We live in a country where the proportion of people reporting to police is dropping every time they do a
victimization survey, every five years. Today, around 65 per cent of victims will not report the average crime to the
police; and more than 90 per cent of victims of sexual assault will not report. We cannot use police data as our
indicator of outcomes.
That report — the recommendations are in my brief and in the material that you have with you — was endorsed by
the president of the CACP, the Canadian Association of Chiefs of Police, and by FCM, the Federation of Canadian
Municipalities; you can see the exact text in my brief.
I now have a few comments on Alberta. Alberta set up a major task force to look at what they should do. It was
chaired by a member of their legislative assembly, and it included the chief of police of Edmonton and a dean of
lawyers. As you have probably heard, I am not a great fan of lawyers solving crime problems but they had one on their
committee, and they had a native person. It was the sort of people you would hope to see, including a local reeve of a
They looked at the research, they talked to the public and to experts, and they came back with a series of
recommendations. Some of those recommendations were influenced by this book. They were also influenced by the
work of the institute.
They made 31 recommendations. Yes, they are about enforcement, prevention and treatment, but more than one-
third concern prevention. The most important is to establish a province-wide crime reduction strategy with a crime
prevention responsibility centre. That is at the top of the 10 priorities. That is what we should be seeing at the federal
level, too. Yes, we have the National Crime Prevention Centre; it is doing good work but it could do a lot more if it was
at the right level and with the right, sustained funding to make a difference.
I want to finish with a few comments about facts. In my brief, I have included some selected facts, as well as a page
from the Statistics Canada survey on victimization. I will read a couple of the facts that I think are critical to us today.
One in four adult Canadians reported being a victim of some sort of crime; that is a lot of people who actually vote.
So yes, voters are concerned about crime issues. There is a smaller number, although 500,000 is not that small to me, of
women who were victims of sexual assault; of people who were victims of car theft, which is not just a property crime
because many of the people go on to drive dangerously — to maim and kill and so on; and there were 500,000 break-
You may be surprised that someone who believes so strongly in facing the rates of victimization is proposing what I
am proposing. I am proposing solutions that will make a difference to those numbers. That is what our responsibility is
in this country. To the extent that we can influence — that is my job — or you can determine policies, we have to make
sure that those figures change significantly.
By the way, as rates, they are not that different from the United States. The murder rate in New York is, of course,
higher than ours, but those other statistics are not that different.
I have given you a few of the flavours of things that have worked. We could have in every curriculum in this country
the Fourth R, a program that would help young people know how to avoid violence, particularly violence against
women. It would not cost that much.
We could have youth-inclusion projects that do not cost that much, but they do cost money and that money has to
be sustained. We could have programs like the Boston program in Toronto, Winnipeg or wherever else people are
dying because of gang crime. We could have the Manitoba crime reduction strategy that has now brought about a 50
per cent reduction in car thefts in that province.
The last page in my brief contains the statistics from the Statistics Canada survey. I have put them there because I
think that should be our objective and your objective in going back to the House of Commons to say, well, whatever
you are going to do with this bill, make sure that you are going to do something that makes a difference to those levels.
The Minister of Justice stated that Canadians have told us that they want to see action. I could not agree more, but
what they are looking for is action that works.
Canadians are two to one in favour of investing in the sorts of things that I am talking about and only one in favour
of continually increasing police and prison budgets. I am not against increasing police budgets, but when you look at
the impact that increase has on municipal spending, recreation, planning and violence against women, it is serious.
I am deeply concerned about this debate. I have been saddened by the lack of serious time taken by politicians to
debate what will really make a difference to crime levels. I do not want to hear Bill C-2 talked about again. I am happy
to see Bill C-2 go back to the House of Commons and out of the way for the one sole reason that we could then start
having a sensible discussion about what will really tackle violent crime, how the initiatives of the National Crime
Prevention Centre can be brought to a level where they can make a difference, how the policies we have seen proposed
in Alberta can be multiplied across the country, and how the sorts of things cities are doing in Scotland and Latin
American countries can be brought here to make a difference to violent crime.
I am grateful for the opportunity to present my suggestions to you. I am happy to answer questions and give you
further information. The book, in my view, is a great way to get the information. We also have a website that is full of
information about crime trends and about what works and recommendations from the national working group. We
are also available to answer your questions not just this afternoon but also at any time in the future.
I have behind me two of our doctoral students, one working on Aboriginal violence in urban areas and another
working on the slow efforts by Ontario to come to grips with tackling violence. They are very much the future of this
country, and they very much wanted to be here to hear this debate today.
Tim Stuempel, Chair, Policy Review Committee, Canadian Criminal Justice Association: Honourable senators, the
Canadian Criminal Justice Association welcomes this opportunity to address Bill C-2 in the Senate.
We have a few concerns, as do a number of the other witnesses today. I chair our policy review committee, which is
the committee that looks at legislation such as this as it proceeds through Parliament. Our executive director is unable
to be here today, but Ms. Hannem and I will be happy to answer questions afterwards and give you whatever
information you want to have.
While the CCJA applauds the intentions of increasing safety and security of Canadians, we do have concerns with
the Bill C-2 as passed by the House of Commons and as we see it today.
Just to give you some background, the CCJA is one of the longest serving, non-governmental organizations of
professionals and individuals interested in criminal justice issues in Canada. We began our work almost 90 years ago,
in 1919. We have been around a long time and presented to many committees.
We represent nearly 900 members across Canada, and we circulate a number of criminal justice publications such as
the Canadian Journal of Criminology and Criminal Justice. We are not an advocacy organization but we do promote
research-based evidence. We recognize the concerns among the public and our political leaders that have led to this bill.
However, we believe the solutions, to reiterate some of Mr. Waller's points; do not always lie in more law but rather in
improving the application of existing laws and enhancing public education and crime prevention initiatives in
I will try to outline the most significant reservations we have about Bill C-2 and then welcome your questions. I
would say on a personal note that we applaud the committee for its commitment to due diligence in examining this
high-profile legislation. Bear in mind that we are not seeking to be critical of the bill for its own sake. We hope to assist
the legislators to make informed decisions based on facts and what should work to reduce crime.
As I said, we will discuss some of our significant reservations, but we will also address some other reservations with
aspects of bill because we feel that, as a whole, the way Bill C-2 is set up creates issue throughout the bill. Why would
we want to object to certain aspects if we do not really have great issues with it? If we do not object, we let ourselves
ignore other possible solutions that work better and fool ourselves into believing that we are actually accomplishing
something. The Tackling Violent Crime Act, if it goes through, makes it look like we are tackling violent crime, and
that is not what the bill does.
As you will see, we did supply briefs for the individual pieces of legislation in the earlier session, and they should be
appended to anything you have there. I will be reiterating some of those positions and referring to them. I will quickly
address concerns with several sections of the bill, and I will defer to Ms. Hannem to address concerns with the
dangerous offender legislation. We will both be happy to answer questions afterwards.
The first area of concern is the creation of the two new firearm offences and the escalating mandatory sentences of
imprisonment, the mandatory minimum sentences. Mandatory minimums do not deter crime; we know this from
numerous studies. Other witnesses have also supplied you with studies that show this. Scholars worldwide have
dismissed the concept of mandatory minimums as effective crime control, so why would we proceed with that
legislation? Offenders simply do not consider sentence length when they commit crimes. They do consider the
likelihood of being caught and punished, however. Increased incapacitation and incarceration will not reduce the crime
rate. When we look at various jurisdictions around the world, we note that those with high incarceration rates also
have some of the highest crime rates. We also note that increasing the mandatory minimums will have the effect of
increasing crowded conditions in our prisons, and I know that two organizations will be speaking later on today and
will have a lot to say on that topic. They will do little to actually improve the safety of Canadians.
The CCJA feels that the mandatory minimum sentences go against the purpose and principles of sentencing. They
limit judicial discretion as well. The Criminal Code at 718.2 states:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
There is a reason that was brought into the code, and we feel that introducing mandatory minimums goes against
those purposes and principles.
Judicial discretion is a hallmark of our Canadian criminal justice system. As noted by the late Chief Justice Lamer:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the
societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the
offence, while at all times taking into account the needs and current conditions of and in the community. The
discretion of a sentencing judge should thus not be interfered with lightly.
We would argue that, in fact, Bill C-2 does unduly interfere with the discretion of sentencing judges, judges in whom
the CCJA has a great deal of confidence.
Moving on to comments on age of consent and the impaired driving aspects, while we consider aspects of this
problematic, we are not as concerned about them, but we do have issues with them. Again, we do not want to ignore
issues in the bill to focus solely on other ones because by doing so we might miss the point that there are better ways of
addressing these concerns.
When we look at raising the age of consent for sexual activity from 14 to 16 years of age, the CCJA of course
supports effective child protection. However, we oppose the sections of bill where there are indications that such a
change in law will not do what it is supposed to do and alternative courses of action should be put forth. Our primary
concern is that we do not see the legislation accomplishing what it said it would do, namely, protecting our children
from sexual offenders. We do recognize, however, several unintended consequences.
Behaviour that, while offensive to some is considered normal to some youth regardless of the five years close in age
exemption. This non-exploitive behaviour will be criminalized now, and this will create issues. I know you have had
this debate in previous meetings of this committee, but we definitely feel it is true. You are criminalizing behaviour that
many youth feel is normal behaviour. As a result, youth below the age of consent will be less likely to seek advice or
help on issues related to sexual activity if their choice of partner is considered illegal.
There are high and increasing STD rates among youth. HIV infection rates are going up. Effective contraception is
available to youth; young women can be prescribed contraception at age 14. However, it will not be sought out and
protective measures will not be taken. That will endanger young people in the country rather than protect them.
We recognize that we need to do something to protect youth from sexual offenders; however, we feel this legislation
is not the way to do it. It does not strike an appropriate balance between protecting children from sexual abuse and
exploitation and permitting the sexual expression of young persons.
If we want to improve the health, well-being and safety of sexually-active youth in Canada, alternative actions, such
as holistic education and preventative awareness programs are more likely to be effective than legislative change. They
are also more likely to have a measurable impact on health, the numbers of sexually-exploited youth and the degree of
exploitation. Other alternatives include enabling significant and ongoing dialogue about sex and sexuality.
With regard to preventative measures, creating increased awareness of the tactics used by sexual offenders,
especially over the Internet, and the encouragement of the reporting of such incidents are the things we have to do. By
raising the age of consent, we are not actually doing any of the things that will have a real tangible impact. We should
be providing realistic information on the sex trade to youth by former sex trade workers, for example, so they know
what happens. Providing access to confidential and affordable counselling, increasing access to birth control,
increasing education about STDs and prevention will help protect our sexually active youth.
In regards to legislation, we recommend consistent enforcement of existing legislation as this legislation already
adequately addresses the legal side of the issue. This is something that runs through the whole of Bill C-2. We have
legislation in place that deals with all of the aspects of Bill C-2 already. We know that exploitive sexual activity is illegal
and a judge has the discretion to find based on certain parameters that a relationship is exploitive.
I want to touch on impaired driving. We have concerns with the new regime for the detection and investigation of
drug impaired driving. We are in favour of efforts to reduce impaired driving in Canada which is already decreasing
significantly. However, we again do not feel that this legislation is necessarily the way to go, at least without further
study and clarification of a number of issues.
There is no distinction between the drug schedules. We know that impairment is the primary issue; however, we do
differentiate between different drugs and react differently to their use and possession. For example, if an individual has
his or her medication changed and it impairs his or her driving, should the individual be subject to the same aspects of
the law as we do for alcohol and drugs? That is something that should be looked at more closely.
For consistent application, Bill C-2 is going to require a significant investment of resources. You will have to train
DREs, drug recognition experts, and qualified medical practitioners across the country. That sounds all right in
Ottawa or any major urban centre. However, in the large part of Canada that is rural, it is going to be very hard to
proceed with the steps outlined in Bill C-2 because you are going to find it very difficult to have access to DREs all the
time. Therefore, the question of opportunity costs arises again. Are these resources better spent on preventive
measures? We would argue that they are.
We have concerns regarding the consistency and accuracy rates of field sobriety tests. The accuracy rates, as you
have seen, range quite a bit. That needs to be examined more closely. We are not saying that they are not useful tools;
however, things need to be clarified before we move ahead with them. This all has to be done prior to this legislation
coming into force.
There are also issues regarding the right to counsel. When is an individual informed of this right? When are they
considered detained? I believe you have touched on all of these issues in other sessions as well.
The bigger part of impaired driving that we have an issue with is the limiting of the use of evidence to the contrary,
the Carter defence or the two-beer defence, that people find very offensive. We find it troubling as it places ultimate
trust in a mechanical device. While some argue that Bill C-2 will remove the legal loophole, others note that limiting
the available evidence to the contrary actually reduces a legitimate safety valve and reduces judicial discretion.
By limiting this ability, we weaken the presumption of innocence. We recognize that there is a high degree of
accuracy and reliability of these machines being utilized by police. However, we note that no machine or operator is
perfect and there remains the probability that circumstances will arise where the machine malfunctions or the operator
is in error. In this instance, the defence is unable to present evidence on this and therefore someone who should not be
convicted is convicted.
Finally, Bill C-2 proposes to increase the penalties for impaired drivers. We feel current legislation is adequate in this
regard. Impaired drivers who cause bodily harm are already subject to considerable imprisonment. Those who cause
death are liable to imprisonment for life. The Criminal Code already refers to impairment by alcohol and drugs. We do
not see how the added penalties will aid in what we are trying to accomplish.
Concerning bail hearings, we do not have a lot to comment on at this time. Suffice it to say, Charter concerns
regarding the presumption of innocence need to be addressed by the committee, notwithstanding similar provisions
with regards to drug-related offences that are already in place.
Stacey Hannem, Member, Policy Review Committee, Canadian Criminal Justice Association: I just have a few brief
comments on the sections of the bill that deal with amendments to the dangerous offender legislation. As you know, we
have existing dangerous offender legislation in this country. The legislation allows an individual, who has been
convicted of a personal violent offence or an offence of a sexual nature warranting a sentence of more than 10 years, to
be sentenced to an indeterminate period of imprisonment at the discretion of the judge and the Crown prosecutor who
puts that application forward.
We have two significant concerns with the amendments to this current legislation. The first is the suggestion that the
threshold for the finding of a dangerous offender should be lowered from 10 years to just two years. This essentially
creates a much broader space for people convicted of relatively minor offences to potentially be put forward for
consideration under dangerous offender legislation if they have three such offences warranting a sentence of more than
This suggestion to lower the threshold, in combination with the huge expansion of the list of designated offences,
could be very problematic. The current list of offences is much shorter. The new list is going to include very broad
offence categories such as assault or assault on a peace officer, which could very well get you a sentence of two years.
Three convictions and you could be looking at a dangerous offender charge for three assaults. This could possibly have
the effect of a lot of overuse of this legislation.
Currently, judges and prosecutors have wisely used their discretion to limit the use of the dangerous offender
legislation. We already have more than 384 dangerous offenders detained in this country. They are using it with
discretion, but it is being used. It is targeting the worst of the worst in this country. We would argue that there is no
need to lower that threshold. If you felt that the 10-year threshold is overly restrictive, we would suggest that you
return to them a suggestion for a five or seven-year threshold, rather than two, which is very low.
The other problem with the two-year threshold is, of course, that two years less a day keeps you in the provincial
system and under that threshold. Two years puts you into the federal system where there is access to programs and
services. There is a danger that judges may look at the possibility for a dangerous offender designation and give a
sentence of less than two years. That would put a person who needs help, who needs rehabilitative programming, into a
situation where that programming is not available. We find this to be somewhat problematic.
The second issue I will speak to in this bill is the creation of the presumption that the conditions for a dangerous
offender designation are met by the mere fact of those three convictions for the primary designated offences with
sentences of two years or more.
The onus after these three offences is then placed on the defendant, who has to prove on a balance of probabilities
that despite his or her convictions, he or she is not dangerous and does not warrant this indeterminate sentence.
The problem with the introduction of this reverse onus is it places a huge burden on the defendant. The preparation
of an adequate rebuttal to a dangerous offender charge is very expensive. You need to hire expert witnesses in
psychology and psychiatry. You need to pay these people to come to assess you, to testify on your behalf that you
might be amenable to rehabilitation; or that you might better suit, for instance, the long-term offender designation
rather than the indeterminate sentence of the DO.
The cost is very substantial. A single DO defence would completely drain the resources of most legal aid
foundations. They would not be able to handle it. Basically, you would only be able to rebut a DO application if you
have the monetary resources to finance that, which would place many defendants in a situation where they have no
adequate means of defence. This could be open to Charter challenges, and may be subject to many appeals on the basis
of lack of access to adequate defence.
We would argue, again, that the existing legislation on dangerous offenders is adequate to address and incapacitate
Canada's worst offenders. If you consider the 10-year minimum too restrictive, perhaps an alternative suggestion
somewhere above the two years suggested in the bill — around five or seven years — might be more appropriate.
On a positive note, we recommend the acceptance of the changes that are proposed to the peace bond provisions —
the sections 810.(1) and 810.(2). We do not find these to be very problematic or overly onerous. There is a question as
to whether it is going to be effective, whether lengthier peace bonds actually protect anybody. We do not really know;
but it is not particularly problematic as the reporting restrictions are not very onerous for that designation.
Senator Stratton: What I have heard this afternoon is really interesting. I agree with you, Mr. Waller; I think I
watched you on television last night when you explained the Boston example. I do not disagree with you; however, I do
not see the solution to this as a one-legged stool. In my view, we have to look at it as a three-legged stool.
When we hear the phrase — and I have said this before — that things need further study, the folks at the other end
watching this have heard that phrase for years. They are beyond that now; they want something to happen.
I think it was on CTV, on Sunday evening, where they did a study of Mayerthorpe. CTC virtually said that if Bill C-
2 had been in effect, those peace officers would likely be alive today.
That is pretty hard gruel for people to swallow, after watching that kind of thing and coming to the conclusion that
we desperately need something to happen, to have you come before us and say that we need further study. People are
beyond that and want action.
I agree with a three-legged stool approach including prevention. As for more police on the ground, I do not care
what you say; in my city, that is what we need to a degree. Then there is this issue of Bill C-2 and how to deal with the
How would you react to that three-legged stool concept? Not specifically to Mayerthorpe because that is a tragic
end, and I do not think we need to go there again.
Mr. Waller: I made it very clear that I do not think we need further study, but that we need action. There has to be
closure on this bill — whether it is a three-year, five-year, seven-year, two-year minimum for dangerous offenders —
but I do not see the three-legged stool here. I can accept that we have a bill now in front of us, but where are those
other two legs?
There has been a federal promise of 2,500 extra police officers. The McGuinty government has twice promised
1,000, which is actually a higher percentage increase than the 2,500. I am very concerned about where the money is
going to come from, not for the first couple of years, but the impact on municipalities of extra police that they have to
pay for. You only have to look at this city with a 10 per cent increase in the police budget this year. In my view, the
third leg is a straw.
I am not exactly sure what the National Crime Prevention Centre's budget is, but it is of the order of $30 million.
Canada is spending $15 billion, about $10 billion on policing. In my view, $30 million is not serious.
I like the NCPC strategy, the blueprint that Minister Day has approved, but we have to see real money behind it.
We have to see it raised, like in Alberta, to a level where those three legs are working together, instead of having one
very weak stool, with the RCMP and the correction services with huge budgets, along with the border service, et cetera.
I also like the three-legged stool concept, but you must have the three-legged stool process.
I did watch ``Mayerthorpe.'' Like everybody around here, we are all concerned with people who are obviously
dangerous, being released based on previous convictions and their pattern of behaviour. I will let the others debate
what that threshold should be. I was part of the original group who drafted the dangerous offender legislation, so I
believe in it.
It could be that we need more than 384 people incarcerated. We have to be careful about drawing the margin, but we
also have to look at what all this stuff costs. Quebec announced a $500 million investment in prisons last week. Of the
$417 million that Alberta is putting into its three-pronged process, I know that part of that is going to go for the
construction of a prison. Probably rightly so, because there is overcrowding; but we absolutely must find a balance
between this continual discussion of amendments of the Criminal Code and debates about how many more police
officers we are going to get and how many prison cells we are going to get. In my view, what would have stopped
Mayerthorpe, has to do with programs that should have been in place around that person while he was growing up.
I am not saying we can eliminate every person like that; however, we know that investment in more public health
nurses will reduce the number of people who grow up like that. We know that short-term action — Boston is not long-
term action — should be taken now.
It can be done, to some extent, without additional funding; but it would happen much better if there was leadership,
if there was a national action plan where the three orders of government got together and said, how are we going to do
this? I think that is what tackling violent crime is about.
We will not eliminate every disaster that hits the headlines, but we can reduce the number of those disasters, and we
can reduce the appalling and outrageous levels of continuous low-level violence. ``Low-level'' may not be the right
word, but it is low visibility, behind closed doors — the violence against women.
The Chair: Mr. Waller, if you could tighten up your answers just a tad, it would help us to let each senator pose
Senator Stratton: I am not disagreeing with you. I was in the city of Winnipeg on Friday and the mayor gave a state
of the union address in that city. One of the major components of his speech was attacking crime. The budget has gone
up 14 per cent over three years, so they are really concerned. There has been federal funding to put more police on the
ground because you need to have that physical presence. In New York, you can walk around safely in Manhattan now.
Why? Because there are police around. I was there and I was told by a long-term inhabitant of New York that they feel
much safer now. Why? Police on the ground. That is the second step.
The third step is the prevention remedies that you talk about and that I think is worth pursuing in the near future.
That is my argument and I will stick to it.
Mr. Waller: One of the things I have done in my book is address the Giuliani claims. There is no doubt that crime
has gone down in New York, but it went down for a whole range of reasons. The evaluations of the police contribution
are that it accounted for about 4 per cent or 5 per cent of the reductions.
Unlike my colleagues, I think if you incarcerate everybody, you will have some impact on crime. The U.S. has
incarcerated 2.2 million people, one third of them Black, and you do have some impact on crime from doing that. If we
are going to see real reductions, however, we have to find a balance. Your stool will not stay even if you have two
strong legs and one weak one.
I think the gang problem in Winnipeg is not going to be solved by adding yet more police. I think it is going to be
solved by a combination of policing, enforcement and prevention. That is exactly why the Manitoba car theft reduction
strategy has been so successful.
Mr. Stuempel: The call for further study I think should be taken more as a call for legislators to look at the actual
studies that tell us what works. People are tired of these calls for further study, but we keep going the one way. We
know that these things do not work, so why do we not pay attention to the studies that show us what does work?
We have the studies on prevention. I think we are fooling ourselves if we think that continually pushing tough-on-
crime legislation does not come at significant opportunity costs, where programs such as crime prevention programs do
not get the money channelled there because of this. I think we are fooling ourselves if we believe that is the case. That is
why we have to approach it this way.
Senator Stratton: I think some of that is going on right now in various cities and provinces across the country; it is
not just a federal responsibility.
Senator Carstairs: I found my colleague's reference to a three-legged stool interesting, because I think that is exactly
what you are suggesting; enforcement, prevention and treatment. Unfortunately, what we see in Canada is very little in
the way of expenditure on prevention, very little expenditure on treatment and a whole bunch of money spent on
We have to balance that three-legged stool. No place is that more in evidence than in the city of Winnipeg, where I
also come from, in which we spend virtually nothing on prevention and treatment. Everything is out of whack, I would
I was particularly interested in the discussion of the continual belief that if you just keep amending the Criminal
Code, somehow or other you would get it right. Do you think that if we had a moratorium on amendments to the
Criminal Code until we got some of the other things right, that maybe we would see a significant change in terms of
prevention and treatment?
Mr. Waller: Yes.
Senator Carstairs: That was succinct.
I would like to also move into another issue. Our side has kind of divided up the five bills before us, so I am going to
deal with the age of consent bill.
The public perception is that somehow or other, if we raise the age of consent from 14 years to 16 years, all of our
young women — and in some cases, young men — are going to be immediately saved from any form of sexual
First, the bill does not have anything to do with sexual exploitation — it is non-exploitive behaviour — but that is
the perception. If I were to make the bill better, without tossing it out with the bathwater, what would I do?
Mr. Stuempel: Actually, it is interesting; in our brief, we comment that we do not have the expertise to suggest an
appropriate age of consent. What we comment on, instead, is that by doing this, we are fooling ourselves into thinking
this is providing a solution. We believe that it will probably have harmful repercussions.
What we can do is educate our youth. The things that are pushing this legislation are fears of Internet predators and
things like that. That is where education comes into play. We need to do these things. We need to encourage reporting
of activity. We have to work with industry so that there are ways of identifying the people doing this.
We have organizations in Canada that can do this, such as the RCMP. In recent weeks, we have seen a number of
arrests and things like that happening. People are doing this work, but we need more channelled into that. That is how
you approach that.
We would argue that age of consent legislation is not going to address this issue. We have problems understanding
why that is the route that is being taken. I apologize if I do not have a solution in the end; but in terms of this bill, it is
not doing what it is intended to do.
Senator Carstairs: Would you argue, then, that a 15-year-old out there in the future is not going to be any better
protected as a result of this bill than a 15-year-old today is protected?
Mr. Stuempel: I do not believe so, no.
The Chair: It seems to me that what this bill is concerned with is not exploitation. It is with what, in another age,
might have been called seduction.
Mr. Stuempel: Yes.
The Chair: I think we can all agree that a 45-year-old seducing a 15-year-old is exploitative in nature, but the 15-
year-old may think it is wonderful.
It is the concept of the close-in-age exemption that I would like to zero in on. You say you are not in a position to
suggest the right age of consent. I think we have to have some age of consent; two is not appropriate.
To avoid some of the pitfalls that Senator Carstairs so telling points out, if we are using, therefore, a close-in-age
exemption, does five years look like the appropriate permissible range? Should it be greater or should it be less?
Mr. Stuempel: We need to know where that five years came from. Why did they suggest five years in the first place?
We need youth involved in the discussion, and we need to be willing to listen to those youth and not dismiss them out
of hand. We need to know what they say. We were impressed to have the five-year, close-in-age exception. It makes
sense to have a close-in-age exemption in legislation such as this. I am not sure what it should be because I have not
consulted the youth. I have not consulted the people who will be most affected by it.
Senator Fox: May I raise a point of order? We are talking about seduction and sexual predators. The Minister of
Justice, when he was before us, said that every day this bill is not the law of Canada, children under the age of 16 are
not as well protected as they should be against sexual predators. The bill, in the minister's mind, is against sexual
predators, not against seduction. I want to make clear that that is what the minister said.
Ms. Hannem: The way I read this bill, is that it is really the government taking the role of parent. The government
wants to be parent to every child in the country. The problem with changing the laws of consent is that there has to be
enforcement attached to that change. How do you discover that a 22-year-old has seduced a 15-year-old? Who makes
that ruling? Who decides whether that is appropriate? There has to be latitude for parents to monitor their children's
behaviour and to judge the age of when their child is old enough and able to make their own decisions about their
sexuality. The danger in putting arbitrary numbers is that every child matures at a different rate. Certainly it is wrong
for 45-year-olds to be having sex with 15-year-olds, and I do not think anyone would disagree with that, but you get
into the grey age when you are looking at adolescents and who are they in school with and who are they encountering.
There has to be room for parents to take some responsibility over their children's actions and monitoring their
Senator Oliver: You brought interesting points of view to Bill C-2, and you have given us food for thought. My
question is for Mr. Waller. When I heard your presentation, one thing jumped right out at me when you said it. You
were giving us your example of Boston, and you said that the answer to all of this is not Bill C-2 but smart policing and
smart prevention. I do not know what that means, and I would like you to put some teeth on it. Your paper asks what
practical actions have worked. You point out how the city of Boston stopped street killing. You refer to smart
enforcement and smart social programming to stop gang violence. You point out that Boston saw success in just six
months. I need you to explain to me specific examples of what was done in Boston. I do not know the Boston case.
What specific things did they do in terms of smart policing and smart prevention?
Mr. Waller: ``Smart policing'' is my term for a police agency that does strategic analysis. In this case, they brought in
an academic from Harvard to help them focus on the young men most involved in gangs and guns and to look at
current legal measures. We have had 200 years of playing around with the Criminal Code. There are many measures
the police can use. They went to look at this armoury of present legislation, and they used that with them.
Senator Oliver: The second thing is the PhD from Harvard?
Mr. Waller: He was working with the police agency, yes. The police chief was very much in charge. He had a
planning group, not so different from what this city has, but they brought in an academic to help them to do the
analysis. On our website, we have a presentation by him, David Kennedy. This is not what we see being used yet in
Senator Oliver: Is that what you call ``smart policing?''
Mr. Waller: That is smart policing, yes, being focused on what you are doing. Typically, policing is reactive. You
respond to 9-1-1. Sixty percent of our police resources in Canada go into reaction. You use some of your police to
target these folks instead of just reacting. It is preventive.
Smart prevention really came out of the School of Public Health at Harvard. It is also consistent with a number of
other examples that I use in my book that have to do with how you get kids who are dropping out of school back into
school to complete their studies. It is about how you get them to get job training, and how you get businesses to offer
Senator Oliver: What are the specifics? What did Boston do?
Mr. Waller: The City of Boston invested in services that were targeted to the areas where these young men were
present. It was a partnership. The police would go there and say, ``I will put you away for 15 years, but you can go to
this agency that has been specially set up for you that will talk to you about how you could complete Grade 12, or the
equivalent in Boston. They will help you get job training. They will provide mentoring.''
The smart prevention part has to do with using things that have worked. That is not news to me. I have known for a
long time, from experiments that have been carried out in a number of countries, that if you focus on the kids and get
them back in schools, and you have to pay people who have the skills to do it, you significantly reduce their
involvement in violent crime and drugs. They were using things that worked, and that is what we need to do and we are
Senator Baker: Before I ask my question, I note that Stacey Hannem was at a university listening to students discuss
a matter, and was praised as being one of the best professors these students had ever had in their academic career. At
that time, you were working on your PhD on a subject that pertains to this legislation. I just wanted to mention that,
because sometimes you do not get the credit you deserve for being, as the students put, one of the best professors they
had ever had.
As Senator Carstairs pointed out, we have selected different areas to be concerned about relating to this bill. My
question is to Mr. Tim Stuempel and relates to his comment that he is concerned that this bill removes the section that
deals with evidence to the contrary. Mr. Stuempel remarks that this removes a long-standing section of the law that
goes back to when we dealt with the bill in the late 1970s, as I recall. I was on the Justice Committee in the other place
at the time. Evidence to the contrary was put in the bill at that time because the impaired driving sections of the
Criminal Code deal with a presumption. The presumption is not as simple as it appears on its face. The presumption is
that the evidence that someone is tried on is evidence that is presumed to be of effect in the previous two hours upon
the commission of the offence. A balancing was put in the law to allow the accused to present evidence to the contrary,
which would have to negate the actual reading of 80 milligrams per 100 millilitres of blood that the tests were testing.
In the circumstances of this new law that we are enacting, you mentioned, Mr. Stuempel, your concern regarding
prescription drugs and if someone had their medication changed and thereby could not perform the physical tests at
roadside of standing on one foot, for example.
Madam Chair, you asked for the tests that people will have to go through. I presume you have not received those
tests as yet.
The Chair: No, but it was only six days ago.
Senator Baker: We only have six days to deal with certain bills. Anyway, Madam Chair, I hope that we will get that
Is it your concern that by removing this long-standing defence in the Criminal Code under this section and with the
introduction of a physical coordination test that if one refuses to stand on one foot or hop or whatever it is, one is
convicted of the offence and one cannot now present evidence to the contrary? In other words, someone could not go
to a hospital and get blood taken and have it analyzed to prove their innocence. That is my understanding of what you
said; your concern was that a defence is being removed with regard to prescription drugs in this bill.
Mr. Stuempel: I do not believe that in that case it would not be admissible at that point. There were two separate
distinctions. Removing the Carter defence is problematic in that we are now relying on the mechanical device and not
necessarily allowing the right to a fair defence, and individuals cannot lead a defence in that area. That is one issue.
The other issue just means that you are requiring people to go through the various stages where, in the past, before
this legislation perhaps there would be more discretion. I believe at the trial level that you could lead a defence saying
that you were impaired due to the prescription medication. I do not believe it removes that.
Senator Baker: No, whether you are on prescription medication or not is not a defence.
Mr. Stuempel: With the Carter defence we are dealing with the alcohol.
Senator Baker: Yes, but that is being removed from those sections of the Criminal Code applicable to this new law.
In other words, there will no longer be that section of the Criminal Code that says, ``evidence to the contrary,'' unless
there is evidence to the contrary, the presumption applies. In other words, you cannot lead evidence to the contrary.
You accept the readings, you accept everything that has been done under the law and there is not an exception that
someone could provide evidence to the contrary.
Mr. Stuempel: I am not a lawyer.
Senator Baker: What was your point about prescription drugs?
Mr. Stuempel: I am saying that as a result of this, for example, if someone has changed their medications and this
leads to impairment, a DRA and then blood work, suddenly he or she is branded a criminal. If this happens twice, and
many people get their prescriptions changed often, suddenly he or she is in jail for 30 days. That was my point on that
aspect. That is not what we want to do to people. We want to get at the problem of impaired driving, but these are the
unintended consequences of this legislation.
Senator Merchant: I fear that there is an impression left in the public domain that there are some simple solutions to
this very complicated bill.
I do think that the government is disingenuous in some of its insertions because there seems to be the impression
that harder punishments will result in less crime. When the minister was here, I believe it was Senator Carstairs who
asked him if he would be prepared to accept any amendments. Mr. Waller, perhaps you are aware of this, but he said
no. Is there some way that we can give credible information to Canadians so that they can understand that these are
not simple solutions? It is very hard for Canadians to understand all the implications. These are not easy concepts for
anyone to understand. What is your advice to us then when we have a minister who is not prepared to accept any
amendments at all?
Mr. Waller: My personal advice is that we need to get out to Canadians, to our political leaders and to those people
wanting to be our political leaders, better information about what works. I am obviously biased. I wrote this book so
that voters and politicians would know more about what works. It obviously has a personal spin but it is taken from
authoritative sources such as the World Health Organization, the U.S. National Academy of Sciences, the Audit
Commission; I can go on for some time. By the way, it is also consistent with the 1993 and 1996 parliamentary
committees. They both recommended similar things. It is also why my institute has put information on a website, to
inform people about these things. I think the public is smarter with respect to some of this debate.
If you look at the Gallup Polls, which I think are important, the public understands that it is this third leg that does
not have the resources and particularly the smart resources. I am not talking about general utopian spending; I am
talking about smart resources. That is what they would like to see action on.
I am a great fan of the Alberta Report. They talked to ordinary people and these people said they were fed up with
the courts and lax sentences, but they said the problems of crime have to do with parenting, alcohol, lack of services for
youth, change in the family and the sudden influx of large numbers of young men without appropriate resources.
I do not think the public needs educating. I think it is the other way around. Politicians have to look at the data and
listen to the public. I have spent most of my life working in the victim movement. Some victims are very persuasive,
angry and upset. The reality is that there are many victims who are not like that, who are arguing for prevention.
Priscilla de Villiers is probably one of the best-known names who support prevention. The issue is leading boldly and
that is what Alberta is doing. That is what we need from federal, provincial and municipal governments. We need them
to take this information and get on with it. Some of it will give short-term results; some of it will take the longer-term.
We must do both and find some balance between continually racketing up police budgets and investing more and more
in prisons. The opportunity cost of these things is huge because there is a fixed pie there. We have to get those things in
place. Some of them are as simple as Boston without lots of money; some require a bit more, but they require
leadership more than anything else, a coordinating group who has the power, as in Alberta, to make things happen.
We do not need further discussion of law reform.
Senator Merchant: Could you give us a figure? How much does it cost to incarcerate a person for one year?
Mr. Waller: I like to use the figure of $100,000 a year. It depends whether it is a woman in maximum security, for
example. Other people here can give you more up-to-date figures.
If you divide the $10 billion we spend on policing by the number of police, you get a figure of about $125,000 a year.
If it is $80,000 or $100,000 to keep a person in an institution, it does not matter much; these are very large figures. If
you are building then have you to pay for construction. Quebec will add 353 cells for $500,000 million. That is very
The other side to your question is: What would it cost to reduce violent crime by 50 per cent in this country? That is
what I have done in my book. People will debate it. It will take 10 years to do it, but we are talking about using about
10 per cent of what we are currently spending out of that $15 billion and most of this is about getting smarter, getting
better data and innovations, adapting things from other countries that have worked. Some of this can be done through
legislation. The Blair government did it through legislation not through amendments to the Criminal Code but their
Crime and Disorder Act.
I tried to set this out in my book. I am not saying it is the only answer; however, it is an informed, practical answer
that meets the demand for action with real results.
Senator Fox: Thank you. First, I want to say I enjoyed the presentations by our witnesses today. I thought the
comments were probing and incisive.
First, I would point out the type of constraints we are working under ourselves. We had the Minister of Justice here
last week who told us we had to pass this bill by the end of February otherwise it would be a question of confidence to
be reported back to the Prime Minister. In response to one of my questions, the minister indicated that he would not
accept any substantial amendments; get it out by March 1 with no amendments. Yesterday, the government passed a
motion in the House calling on us to report back by March 1. In their motion, they said:
. . . the bill has already been at the Senate longer than all stages it took in the House of Commons, and that all
aspects of this bill have already been the subject of extensive committee hearings in Parliament, and in the
opinion of this House, the Senate majority is not providing appropriate priority to the passage of Bill C-2. . .
Bill C-22 has been in the Senate since the end of November and we passed second reading by December 14 as our
official critic pointed out last week. We have had it in committee only for a week and half.
Those are our constraints. We are pressed to get the bill passed without any significant amendments. If we were to
follow that course, we would not be able to do very much.
Mr. Waller, you argue that Canadians want actions that work. Your position on this bill seems to be fatalistic, filled
with frustration in the sense of get it out of the way, and get to the real problem. Is there anything in the bill that you
like, anything that horrifies you or anything that works?
Mr. Waller: I have obviously looked most closely at the dangerous offender provisions. My position is that there are
too many people who were clearly dangerous and should have been caught under the previous provisions who were not
caught. Therefore, if anything, I would accept something along those lines. I have not looked at the drunk-driving
provisions so I cannot comment on them. For the rest, yes, my position is fatalistic. There is nothing that I have heard
from the House of Commons that prevents you from making suggestions that go beyond this bill. If you are forced to
agree to this bill, I think you could propose that the government take action that will in fact reduce violent crime. I also
think you could suggest some things that go beyond the actual legislation. For instance, Ms. Hannem talked about the
worry of this being overused for dangerous offenders. Like the previous legislation before you became the Solicitor
General, there were people who were not dangerous that were caught in that thing. I would like to see evaluations of
the use of this legislation.
I think you need to recommend annual victimization surveys that deal with the general public and violence against
women and hold governments accountable for whether there are changes in those statistics. I know it is a bit more
complicated than I am making it sound, but we are about making a difference to the number of people who are victims
of violent crime. That is what we should be measuring this against.
Senator Fox: Are you also saying that if the legislation is passed as is, it should be closely monitored?
Mr. Waller: Yes.
Senator Fox: I come back to the other witnesses and the question of minimum mandatory sentences. You indicated
that from your point of view, mandatory minimum sentences do not reduce crime. Are there any of the new mandatory
minimum sentences that you would agree with in this bill?
Ms. Hannem: As a committee and as an association, we are against mandatory minimum sentences on principle. The
system would be severely crippled by the inability of a judge to take into consideration all of the relevant factors, all of
the relevant issues in each individual case. It will result in more people being incarcerated for longer periods of time and
spending more money on prisons. There is simply not the capacity for programming to help the people you are sending
to prisons for lengthier sentences. I do not think you could say there is any particular element in the mandatory
minimum sentences section with which we would agree.
Senator Fox: Since we cannot substantially amend this proposed legislation, what would be your view on the
Criminal Lawyers' Association suggestion that we should introduce a key feature found in mandatory minimum
sentence schemes in other common law jurisdictions called the ``permissible departure clause?'' In that clause, if the
judge is of the opinion that there are exceptional circumstances relating to the offence or to the offender, he can use the
permissible departure clause to modify the sentence.
What would you think of including that clause in this bill?
Ms. Hannem: Absolutely, if we had to have mandatory minimums that would be an acceptable solution to allow
other factors to be considered.
Senator Fox: Playing with the word ``minimum,'' is that not the minimum we should be doing?
Mr. Stuempel: Absolutely, the loss of judicial discretion is the biggest loss.
Senator Fox: Reading the brief from the Criminal Lawyers' Association who presented to us yesterday I quote:
One key feature which is found in the MMS schemes in other common law jurisdictions, but is conspicuously
absent in ours, is the presence of a permissible departure clause. While the drafting varies, many jurisdictions
have enacted provisions, which permit judges to depart from harsh MMS in appropriate cases.
Mr. Stuempel: That would make an enormous difference to the impact of mandatory minimum sentences in
The Chair: For the benefit of the television audience, I will point out that this committee, and after this committee
the Senate, can in fact amend this bill in any way it sees fit. However, what the government will recommend to the
House of Commons is another question. I think that is what the minister was driving at. They do not want to see us
send them anything substantial, but he does not have the power to make us amend or not amend. I am clarifying what
Senator Fox: He said he would not accept any ``substantial amendment.''
Senator Joyal: His statement can be found in the minutes. The minister came and told us in the committee that the
House of Commons spent two years on the bill and made 48 amendments. The Deputy Minister of Justice was in the
room listening to this and the Minister of Justice told us this bill is the best effort — thank you, good-bye, approve it. It
was the minister of my own government.
I made a point of order to tell the minister that there is a section in the Constitution that calls upon this chamber to
review the bill. If we come to the fair conclusion that there is a defect in the bill, it is our duty to report it and that is it.
The Chair: May I suggest that is not exactly a point of order, but it was an excellent point of clarification.
Senator Joyal: Hopefully, on the other side, they will receive it on the same grounds.
Senator Di Nino: Thank you for helping us with this complex and difficult issue.
There is obviously going to be some differences of opinion. I will start with a comment made by Ms. Hannem which
I would like to refute on the record.
I believe she suggested that Parliament is playing the role of parent. I would suggest that is not the case. What
Parliament has done, as was suggested by others — in particular, Mr. Waller, — is listen to the public. Parliament is
listening to the mothers and fathers, listening — if I may put a little plug in for those of us who are a little older — to
the grandfathers. I believe that is the role that is appropriate and that is the role we are playing — all political stripes,
because all members of Parliament from all parties supported this provision in the other place. It is really a role that is
appropriate for us, to listen to those who have an interest in this issue. Many have expressed concern about the age of
consent and it was through that concern that the action was taken.
You may wish to make a comment. I just wanted to put that on the record.
Mr. Stuempel, I believe you said something about medication changes impairing the ability to drive. Frankly,
should we be concerned about how their driving is impaired? If it is impaired — and I understand, by the way, that this
provision already exists in law — should these folks not be subject to the legal consequences?
Mr. Stuempel: I feel we need to maintain discretion in sentencing when you have the 30-day mandatory minimum
situation when someone is impaired. It is a different case when somebody goes out drinking and gets in their car and
drives. Someone leaves their doctor's office under new medication and, in the course of their return home, they are
impaired. Should those people be subject to the same minimum, after the second offence, 30 days in jail? Is that
appropriate? That question arises. Of course, we want to remove impaired drivers. They can remove them. It is just
whether they are subject to exactly the same thing across the board.
Senator Di Nino: Obviously, I made my point and that is good enough. Thank you for your response.
Mr. Waller, again, to put something on the record, you talked about the three-legged stool. Just for the record, I
think it is appropriate to restate some of the initiatives taken by the government in this area.
The Government of Canada, in its commitment to help communities prevent youth crime, with a focus on guns,
gangs and drugs spent $16 million over two years for youth at risk. The government spent $11 million to create a youth
gang prevention centre at the National Crime Prevention Centre. The government spent $5 million to enhance the
Youth Justice Renewal Fund at the Department of Justice, and developed a national anti-drug strategy, for which two
thirds of the funding is for prevention and treatment. This government spent $10 million to implement a national
prevention campaign aimed at youth and their parents, as well as over $30 million dedicated for treatment. This is all in
a very short period of time. I think it is fair to say that some action has being taken.
You may argue in your response that you would like to see more, and we do not disagree with that.
I will put my question at the same time so I do not take any more time. In your presentation you give us some
statistics. As an example, you say that in the 2004 General Social Survey of adult Canadians by Statistics Canada one
in four Canadians were the victims of crimes, and close to 500,000 women were sexually assaulted.
In your commentary, you talked about the fact that the reporting of crimes is less than it was. Do I understand that
if all the crimes were reported, those stats would be greater than the ones you presented?
Mr. Waller: Just to clarify on the statistics, the statistics that are used here are taken from the victimization survey,
not from police data. In 2004, Statistics Canada did a survey of approximately 25,000 adults. That is the basis for the
figures that are used on page 9 of my brief.
Senator Di Nino: But still, they would be reportable statistics, some of which would not be reported.
Mr. Waller: These are the survey data. It is from that survey that we know that many of these victims did not report
to the police. Because those surveys are done every five years, we also know that that proportion of reporting has been
going down significantly.
I would love to do research — I know that is not action — on this issue. In the meantime, it is reasonable to suppose
that there are two major reasons for that. First, the public realizes that the police are not the main solution to these
events. Second, we undoubtedly, in this country, need to improve the way the victims of crime are treated by the police,
particularly women. That needs to be a priority.
I am personally working on a draft convention that I would like to see this country endorse. I talk all over the world
on this issue, and I would like to see Canada leading on victim issues. Again, Edmonton is already doing some of the
things that I would like to see.
I cannot resist commenting on your first set of figures. I wrote them down as you talked. I am not sure whether it
has reached $100 million or not in new money. There was money before, for instance, in the National Crime
Prevention Centre. I am not sure exactly what it was — $20 or $30 million. I am sure there was money in the national
If you look just at the proposed policing cost from the federal level, 2,500 new officers, that is $250 million. You also
have the provinces increasing this at similar levels; I have mentioned the incarceration figures. The moratorium needs
to be that at least we should be beginning to match whatever those increases are for policing and for corrections. Let us
make sure that the stool stays even, which means we have to put a lot more money in, and then help it to keep going.
If you took $250 million, that is not so different from the answer I gave to Senator Merchant about the sort of
money that could make a significant difference. That money has to be used smartly. I think Minister Day's approval of
the blueprint for crime prevention is a good one, but you have to put money in and you have to raise the National
Crime Prevention Centre from a minor office in a huge ministry to a significant office within that ministry with the
data and with the capacity to influence what is going on. It also has to be able to bring about some sort of federal-
provincial coordination to make these things happen. These are things that have to happen quickly.
Senator Andreychuk: We talk prevention, we talk policing and we talk Criminal Code. Senator Di Nino has touched
on the fact that the minister did come and talk about approaching the issue of crime from all three aspects. One can
argue whether or not there are sufficient programs. For example, some of the programs we have had are outdated, so
you said we have to be creative, and I agree with you.
As you said, we have to be creative and innovative and develop these programs while thinking outside the box. For
example, the Canadian Centre for Child Protection has just been given $2 million. Young people are in cyberspace, and
this funding is for the parents to deal with their children. We are still telling our children not to talk to strangers, but
the luring is going on in cyberspace. We are making an effort, but should we be doing more to protect our children?
The difficulty is that we always talk prevention. There is never enough money. Crimes are being committed. In the
old days, when you were sitting as a judge, you would have a person before you, the crime has been committed, and the
victim is there. What do you do? Do you go out and try a preventative program that might work because we are testing
it on that person, or do you take some other alternatives? That conundrum, I think, is the reason the minister has come
on tackling repeat and violent offenders. We cannot wait 10 years. We have to do something with the repeat and
If that is all that was being done with Bill C-2, it would not be enough. It has to be in the context of all other
initiatives. I would dare say there are not just preventative programs within the criminal field, but all kinds of early
childhood programs, including the way we approach the economy. All of these feed into society and how people
respond, whether they live within the rules or whether they violate them.
My difficulty with prevention is that one really does not know. When you have someone before you, you do not
know whether that person has responded because of a particular program or because of a whole set of reasons for
stopping crime or taking the initiative to stop. For example, you can order people into drug rehabilitation. A certain
number of people will respond to it. We can do that, but we never really know about the individual because there is
more than one impetus. That is not a reason to stop.
Is that why you are saying Bill C-2 can go on, because it is one element but we need to pay greater attention to the
prevention and we have to get more creative? Is that what I hear you saying, Mr. Waller? If you are, I think that is
where I am at, and that is where I would support you. I would like the attention to be on the prevention, but I do not
think 10 years from now, we can give a guarantee which program worked or not. We will have some clues that they had
some effect on society, but we will not be able to say what worked for a particular offender. We have had some good
statistics with pedophilia, for example, and the programs that we have tried do not work. We can see what does not
work, but we are not there yet on knowing everything about human behaviour and prevention.
Mr. Waller: I agree that it is important to stop repeat and violent offenders from being violent in the future. If there
is a pattern there, I accept that we need to intervene through the current dangerous offenders' legislation and possibly
through something that ensures that fewer of them are released.
I do not know how to say this respectfully, because I know how committed you are to the prevention issue, but I
think what we have seen around prevention is a lot of talk. The evidence shows that prevention works. It works in
programs like Boston and in programs that go after kids that are dropping out of school. It works in programs like the
one the British put in and evaluated and in the youth inclusion projects. It works in programs like the one the
University of Western Ontario put in the school boards in Toronto, and it works in the Fourth R. I can go on. I think
we know that prevention works. We absolutely know that we can make a difference to levels of violence in this
country. The evidence is all there. It is on the WHO website and on our website. It is a number of places. We need to
act on that, and we need to act quickly.
We also know, as my colleagues have said, that there is considerable doubt whether minimum penalties for bail will
work. That was supposed to solve the gang problem in Toronto. Why not do Boston, something that works, instead of
spending all this time debating minimum penalties one way or the other? We know those things work and that they are
cost effective. They work. They provide greater social benefits. We do not have to wait 10 years.
I mentioned a 50 per cent reduction. That means going from 600 murders a year to 300 murders. That is a huge
jump down. That means going from 500,000 sexual assaults to 250,000 sexual assaults. You cannot achieve that from
this year to next year, but we can make a difference. We can make a way bigger difference if you took the equivalent of
what the current government is putting into policing. I am not saying take that away. Put $250 million into the
National Crime Prevention Centre at the level that Alberta is going to put into its group, and you will see crime go
down in this country. The blueprint that Minister Day has talked about is on the right track. It talks about putting to
work what works and measuring results. That is what we need to do, and we need it quickly.
Senator Andreychuk: My point was we do not just do prevention because we need to worry about the repeat
offenders. I agree with you that we always say we are going to do prevention but we do not do enough of it and we do
not do it creatively enough. That is the point you are making, if I understand.
You said you worked with Prime Minister Blair on these programs, and they were very successful in the U.K. Why
then did Prime Minister Blair bring in the ASBO legislation that not only went after youth in criminality, but also said
that anything that was anti-social behaviour would get them before the courts? That has increased the number of
people that have come to the attention of the police. Why are they putting such heavy emphasis on that? That would be
at the point where I would have said use prevention, because they are not committing crimes. They are attacking
offensive street behaviour, and their justification was that they were going to nip it in the bud, but they were putting
them into a process that eventually led to criminality. Why did they go there if all of these other alternate programs
were so successful?
Mr. Waller: I am also a grandfather; I am getting very old. I have learned some things from that experience. I am
looking for things that work. There are a thousand criminologists looking for what is wrong with what Blair did, and I
am glad that they are doing that. I am looking for the things that he did right. I do not know about ASBO, but it is
probably not the right thing to do. The youth justice board was the right thing to do, and it was done because of an
audit commission that said you had to invest in prevention because it was more cost effective and because it worked.
I am talking about the youth inclusion projects, where you saw 60 per cent reductions. I did not say 100 per cent, but
none of these things are 100 per cent. When you look at these reporting rates, you can put this legislation in, and there
will still be people out there who are dangerous and doing repeat offending. You will never get them all. What we are
about is changing the numbers, and that is why I think we need to focus on those victimization rates and how we can
The evidence on prevention is incredibly strong. I have tried to bring it here so anybody can read it. I am happy to
give it in very ornate and difficult to understand language, with all the ways that they have done it, but the evidence is
overwhelming that these things work. We have to stop talking about it and do it, and ``smart'' is the word I would use.
Smart prevention is what we have to get into. It is targeted. I think Minister Day's blueprint is targeted.
The Chair: Thank you, Mr. Waller. You do make your case clearly and forcefully.
Senator Milne: Because Professor Waller does tend to carry on, I hesitate to ask him a question, except for a very
brief question, sir. You replied to Senator Oliver that encouraging young men to go back to school in Boston worked.
Learning works. In Canada, what is the impact of the cuts to our literacy programs on crime rates?
Mr. Waller: Well, I do not know, and the reason I do not know is that we are not putting enough energy into
research. Do not get me mistaken. I think we have lots of stuff to act on, but we need to get better data in this country.
When I was writing this book, I would have loved to include many Canadian examples. We do not have many
Canadian examples because we are not evaluating them. We do not know whether they work. Interestingly, the
Americans do; they just do not use the data. The British, Australians and Scandinavians do. We need to catch up with
them. Yes, we need to use what works, but also we need to test more of the things that deal, for instance, with the
problems of young Aboriginals in urban areas. We need to look at the literacy issue. We need to look at how we can get
more Canadians in school through meals, through mentoring and those sorts of things.
Senator Milne: Thank you, Professor Waller. I knew I should not ask that question, because I want to leave time for
Senator Joyal's questions.
Ms. Hannem, perhaps you can write something for us on reverse onus.
Ms. Hannem: Absolutely.
Senator Milne: I am very concerned about this change in our sentencing and bail system.
Senator Joyal: Mr. Stuempel, your opening remarks were centered on the issue of minimum sentencing. Were you
consulted by the Department of Justice before those provisions were drafted?
Mr. Stuempel: Were we consulted prior to the development of the bill as to what we thought of mandatory
Senator Joyal: Yes.
Mr. Stuempel: No, we were not. They are aware of our position on mandatory minimums.
Senator Joyal: They never consulted with you to ask if you had additional information to provide or accurate data
in your hands or other studies that might be of use.
Mr. Stuempel: As chair of our policy review committee, I saw no evidence of that, no.
Senator Joyal: I will ask Mr. Waller the same question. In general, in relation to any of the five parts of this bill, was
the Institute for the Prevention of Crime consulted before drafting this bill?
Mr. Waller: We did not exist when the bill was prepared, and we have not been consulted. Our life choice is to focus
on prevention rather than amendments to the Criminal Code that do not deal with prevention.
Senator Joyal: My second question is in relation to the age of consent. The question is to Ms. Hannem.
The problem I have with that section of the bill is the following. In most of the provinces, the age of consent for
marriage is 16 years, in one territory it is 15 years. If a person younger than 16 years intends to marry, his or her
parents can consent to the marriage, and of course, there would be a legitimate legal sexual relationship. If a 15 year-
old intends to have a sexual relationship with 21-year old the parents, even though they might consent, are unable to do
so under this proposed legislation. In this example, the state decides that the parents do not have the right to
pronounce on that aspect of the activities of their child.
It seems to me that this bill removes something from the parents' authority that is difficult to justify in this day and
Why would the parents be able to consent to marriage, which of course involves a sexual relationship, and be unable
to consent to a similar relationship that involves the same activities? That is where I think this bill carries a moral tone.
The state or the government decides that the parent or caregiver is not in a position to make a judgment on the
appropriateness of the sexual relationship that the child enters into. I think this chamber should give this provision
some sober second thought.
People are all for protecting children, but when a child is under the care of his or her parents, the parents have the
authority to decide what is good or not good for the child. If the parents have the capacity to pronounce on the
marriage of the child at 15 years of age, they should have exactly the same authority to pronounce on a sexual
relationship for the same child. I feel that the bill missed the target with this provision. We understand that all people
want to protect children but at this level, the bill missed the point.
What are your comments? Am I right or wrong?
Ms. Hannem: I would agree with you that situation would be very problematic. You would have two choices. One is
to disallow parents to give consent for a marriage at that age in order to keep it in line with this new amendment to the
Criminal Code; the other is, you need to reconsider the Criminal Code suggestion that we should have a minimum age
This is where I was going when I said that there are morality issues with the government acting as a parent and
taking away that discretion from parents. This provision is taking away the parents ability to judge the appropriateness
of the relationships in which their children are engaging.
I also do not know that youth themselves have been consulted on the age of consent. It has been pointed out that
parents and grandparents are very concerned about children having sex. Parents and grandchildren are also very
concerned about children staying out too late at night, but we do not criminalize that behaviour. There is a very fine
line between wanting what is best for your child and criminalizing behaviour that, for all intents and purposes, is
normal in this day and age.
Mr. Stuempel: This disparity is not new. We have disparity in the age of consent with regard to homosexual
With respect to the other comment, and respectfully to Senator Di Nino, youth groups, such as Justice for Children
and Youth, the B.C. Civil Liberties Association, the Canadian Federation for Sexual Health and Egale Canada have
all commented that increasing the age of consent is not appropriate. Although we have been consulting and listening,
we would argue that perhaps we have not been listening to the people who will be most affected, which are the youth.
Senator Joyal: I see that you are accompanied by one of your doctoral students, who is concerned with the impact of
the Criminal Code in relation to the Aboriginal people of Canada. Did you study the impact of this bill on the
Aboriginal population? What will be the rate of incarceration if this bill is passed? What can we expect to be the fallout
from this proposed legislation?
Mr. Waller: I am not sure whether she wants to answer. I am her doctoral supervisor. She is looking at the problems
of urban Aboriginals. There is nothing in this bill that is in any way relevant to solving the problems of violence
between young urban Aboriginals in Winnipeg. She is actually focusing on Thunder Bay and other cities that have a
significant Aboriginal population.
If you hold up this bill against the areas where we have the most concentrations of violence and of cycles of violence,
which are basically some of these areas in our cities, but also many areas that are not in cities, you see that we have
talked about prevention and done nothing. Yes, we have been trying to do things about Aboriginal problems for many,
many years, but there is a significant amount of information about the sorts of things that are likely to work in those
situations. My student is looking to see how Thunder Bay might be able to take advantage of some of that knowledge.
It will be some sort of combination of action now with learning from it.
Senator Joyal: If this bill is adopted as is, in your opinion, based on your experience, what can we expect in terms of
incarceration rates in relation to the Aboriginal population of Canada?
Mr. Waller: It is clear that the dangerous offender section will expand the number of people who are incarcerated.
The minimum penalties will likely do that. My position is fatalistic, but it is also very positive.
There are so many things that we could be doing to stop the violence between Aboriginals and by Aboriginals
against others. The evidence is all there. We just need to act on it; we need to stop talking about it and start doing it.
Mr. Stuempel: Having grown up in Iqaluit, having worked in corrections in the North and having taught Aboriginal
peoples and justice at the University of Ottawa, I think it will most definitely have a greater impact on the Aboriginal
We are not dealing with any of the issues that we need to deal with in those areas. It is not intended to necessarily,
but it will not help things, that is for sure. We can expect to see the populations rise.
The Chair: The prison populations?
Mr. Stuempel: Yes, the effect on Aboriginal peoples.
Senator Joyal: Will it also affect any other minorities, in your opinion, in cities or other parts of Canada?
Mr. Stuempel: My experience does not lend me to comment on that as much. I would argue that probably; and a lot
of it will be based on the fact that reverse onus will require a significant amount of resources. The poorest in the
country will not be able to lead defences, and legal aid will be crippled by these cases. Those are the people who will not
be able to defend themselves against reverse onus provisions and they will be most affected.
Mr. Waller: To some extent, this was supposed to help with violence in cities like Toronto. It is clear that to the
extent the minimum penalties lead to more people being incarcerated, many more of them will be Black and poor and
coming from families in crisis.
Many of those are situations could be turned around. We know from the evidence that comes from all sorts of
authoritative groups that it would work, with a good chance of benefits from investments in those areas.
The Chair: I would like to thank all three of our witnesses very much indeed. It has been an interesting session. We
could obviously keep you here longer, but we do have more witnesses lined up, as I believe you know.
We are very pleased to welcome representatives of the Canadian Association of Elizabeth Fry Societies and the John
Howard Society of Canada.
Representing the Canadian Association of Elizabeth Fry Societies, we have Ms. Dominique Larochelle, Member of
the Board, and Ms. Kim Pate, who is Executive Director. And from the John Howard Society of Canada, we have the
pleasure of welcoming Mr. Craig Jones, who is Executive Director.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: I am very pleased to be here
representing our organization. I am happy that a member of my board of directors, Ms. Larochelle, is here as well and
she will assist in answering your questions. I am pleased that we are also here with the John Howard Society.
We are especially pleased that this committee has chosen to examine this bill closely. We think that this is exactly the
role the Senate has and senators are to be commended for taking seriously the role of being the chamber of sober
second thought, particularly when it comes to a bill of this nature.
As honourable senators are probably aware, our association consists of 26 members across the country. There are
two staff members in our national office, but a huge number of individuals support us across the country, not the least
of which is our 29 volunteers — board members and individuals — who work out of our office. Our numbers include
some law students who are also some of my students when I teach as a visiting professor at the University of Ottawa.
In addition to that, it is probably of use for you to know, particularly in light of bills like this, that we have almost
1,500 volunteers working across the country. Although we are often very small offices — some of you have been
incredible supporters, and we appreciate that, of our local Elizabeth Fry and John Howard societies across the country
— we know that those 1,500 volunteers donate on average between 160,000 and 170,000 hours of work to our
organizations throughout the year. That is exactly the role that Ms. Larochelle plays as a volunteer on our board of
directors. We had a total last year of 272 staff working full-time and 195 part-time staff working across the country,
just to give you an idea of the context. Our membership estimates that we have tens of thousands of members when you
take up the membership of each of their local societies, in addition to the volunteers and the staff I just mentioned.
Our role is to look at the issues that relate to the marginalization, victimization, criminalization and
institutionalization of women and girls. It is in that context that we offer our comments. Some of you know that
we also have had experience working on many other issues, whether it is Ms. Larochelle on security certificates or
myself working with youth and men prior to the last 16 years with the Canadian Association of Elizabeth Fry Societies.
In terms of the issues, to get to Bill C-2, we have significant concerns about the impact that the bill will have
particularly on women, but more particularly on racialized women and especially Aboriginal women in this country.
We know that women are one of the fastest growing prison populations, particularly when we look at Aboriginal
women and women with mental health; we see that in almost exponential proportions.
Our concern revolves around the fact that we believe this bill will only exacerbate that trend, not just for women but
for men as well. In particular, it will exacerbate that trend in a way that will increase the likelihood that more
individuals will experience imprisonment as a violation of their Charter rights, and in particular their right to freedom
from cruel and unusual punishment pursuant to section 12. It will violate their right to be free of arbitrary detention
pursuant to section 9, and their section 15 equality rights. We have some very grave concerns about the impact we will
see in terms of more individuals likely spending more time in prison.
We also know that this trend is one that people like Thomas Gabor and Julien Roberts have documented that other
jurisdictions have started to retreat from these moves at the same time, as Canada seems to be embarking on possibly a
trend to implement more mandatory minimum sentences. Canada is moving toward more and longer sentences and
more punitive approaches to addressing issues that result in criminal justice involvement but do not necessarily start
I am certain you have probably looked at some of that information, particularly the information about what is
being done in the United States, Australia, and some of the other jurisdictions, so I will not belabour that point.
In terms of the issue of the age of consent, we also are aware that the Department of Justice in October 2005, issued
a statement suggesting that rather than criminalizing more young people, we actually look at more educational
approaches and supports for those who provide guidance to children, whether it is parental guidance or within the
education and health care system. We certainly support that position.
We also support the position put forth by the Canadian Bar Association with respect to some of the submissions
around alcohol and drug-related offences.
In terms of the dangerous offender proposals, I want to spend a bit more time. Although there to date have only
been two young women labelled as dangerous offenders, one of whom died in the prison for women in Kingston;
Marlene Moore committed suicide. Some of you will know the name and the story well. She was a woman with mental
health issues who ended up in the system.
The second is a young woman who I have known since she was 12 years old when I was working with young people.
She has now just turned 35. She has been out of jail, I am happy to say, almost nine years, after winning her appeal,
which was a hard win, after six and a half years of being labelled a dangerous offender. At the age of 21, she faced the
prospect of the rest of her natural life in jail, which is what the judge said to her when she was sentenced to an
indeterminate sentence. Lisa Neve is a young Aboriginal woman. Lisa said that she would like to come, but she is
fearful of the media. Even though she is doing well, even though she is assisting other young people today and has gone
on to integrate into the community and become very productive member, whenever there is any media around her,
whenever anybody has an inkling of where she lives, she is inundated again. Although she would have liked to join us,
she indicated that as soon as she knew there might be some publicity and public attention, she would not join us. She
sends you her wishes. If in fact you are ever in a situation where you would like to have an in camera meeting with her,
she is quite prepared to do so. She feels quite strongly that the two young women that I know of now, two young
Aboriginal women, who are facing the prospect of the dangerous offender designation, are two young women she has
indicated she wanted to assist in not facing that designation.
Lisa Neve, under the current provisions, was labelled a dangerous offender. Under the proposed conditions, she
almost certainly have also been, even though she was labelled a dangerous offender not on the basis of what she did but
what she said, and, in particular, what she threatened to do and what she wrote in her journals. Of course, those
charges of threatening would still come under the provisions that would allow the reverse onus to have applied to her.
In my respectful submission, the way she was treated did amount to a reverse onus. We saw how quickly she was
labelled a dangerous offender and how difficult it was to undo that provision. In addition, once she was in the prison
federal system as a 21-year-old young Aboriginal woman with significant mental health issues, she was housed in the
most austere and isolating conditions. She was housed where individuals who have mental health issues go, as I am
sure you are aware from the recent case of Ashley Smith. Ms. Smith died while in solitary confinement with nothing
but a security gown — no mattress, no blanket, nothing else, and under suicide watch. Those are the kinds of
conditions for far too many individuals with mental health issues, particularly women, particularly Aboriginal women,
and as I say, they tend to be unfortunately increasingly younger women. We are extremely concerned about the
potential impact of these provisions on more of these young women, particularly young Aboriginal women and women
with mental health issues.
I commend to you, if you have not had an opportunity to see it already, a report just released two days ago by the
Ombudsman's Office of New Brunswick, by Bernard Richard entitled Connecting the Dots. He does a masterful job,
and I say that with a great deal of respect. He and his team examined the cases of seven young people who were failed
by — some who were not particularly failed. I would say they were all failed. He argues that in some cases the system
worked better for them. He details the cases of seven individual young people and their families who went through the
system. He includes everything from first having to be criminalized in order to have any support and the fact there were
very few resources prior to criminalization for families to avail themselves of. The report notes the fact that at the same
time as we are seeing the increased intrusion of the state in terms of surveillance, detention, provisions like those that
are proposed in Bill C-2, we are seeing the retreat of the state in terms of social services, health care and educational
services. He actually proposes 48 recommendations. If New Brunswick manages to implement these recommendations,
I think they will take the lead, not just in Canada, but in the world.
He proposes things like not allowing some of what is being proposed in this bill to occur. He talks about ensuring
that young people in particular are not criminalized when essentially they have mental health issues. Mental health
professionals are saying to us repeatedly that they told that because of the cutbacks, if there is anything that could be
remotely determined to be of a criminal nature, to call the police. They tell us that if someone is resisting a restraint,
threatening or not wanting to participate in a strip search, that because their resources are so limited, they are being
told to invoke the authority of the state and call the police. They are told to call the police and let the matter be dealt
with that way because they have so few resources that their resources are being prioritized for those people who do not
pose those challenges.
As well, there are individuals who are saying they recognize that behaviour is symptomatic of the mental health label
or the mental illness label that has been applied to the individual, but that behaviour, once the person is criminalized, is
not seen through the lens of mental health. It is seen through the lens of criminality and is therefore interpreted always
as bad behaviour.
Again, I encourage you to watch for the reports about the death of Ashley Smith. You will see that theme,
unfortunately, many times over in our federal prison system. I hope that the Office of the Correctional Investigator in
the reports they are releasing about the deaths in custody will similarly chronicle what we are seeing in that respect.
Individuals with mental health issues increasingly come to the attention of the police — who are the last ones to be
called when there are no other resources in the community? It is the police; and what are they to do? I have talked to
many police officers who, despite all their best intentions and efforts, are left with no option but to lay charges in order
to ensure that the person either does not harm himself or herself or harm someone else while in the midst of a full-
blown psychotic episode.
They may say we prefer to take them to the hospital, or they may do it. I talked to police officers in Atlantic Canada
who went out of their way to take a woman to two different hospitals. She was turned away. Eventually they said, ``We
are going to take you home.'' She said, ``If you take me home, I will kill myself.'' They said, ``We do not want you to do
that.'' Then when she realized, as she had been in the system before, that she had to say something more, she said, ``I
will threaten to kill you or the woman at the corner store down the street.''
We are being told that this bill is to address much more violent crime, to address individuals who pose an ongoing
risk to our public safety. I would suggest to you that who will be captured will be more the former, the individuals that
I was talking about, that are increasingly filling our jails, not those who pose the greatest risk to all.
They may be picked up, but we would respectfully submit to you that those individuals are already being picked up
by the state and are already being subject to the dangerous offender provisions. There are already mechanisms in place
to ensure public safety.
We also have concerns about the unconstitutional nature of the reverse onus, the increased fiscal and human cost of
these measures, and the fact that we will likely see the building of more prisons with more beds at an increased cost to
the taxpayer, both in terms of fiscal cost but also in terms of human and social cost. The reality is that as we see more
individuals in the system, we see more resources being sucked out of our communities.
As one of your colleagues, Senator Kirby, as he then was, noted, and the numbers of you who were involved in the
committee that looked at the issues, particularly of people with mental health issues, you know very well how much
work needs to be done there. If we devote more and more resources to measures like those proposed in Bill C-2, we are
unlikely to see more resources going into the very worthwhile recommendations made by that committee.
In conclusion, our view is that as the Senate committee examining this, we urge you to issue a very strong statement
about the unnecessary nature of these provisions, that everything that is proposed to be addressed in law already exists.
There already are measures in law that could address those issues. We urge you also to not accept the potential impact
and ramification of provisions in terms of the long-term impact on other resources, the long-term impact on
communities, and the long-term impact on the generations of young people to come beyond us.
Craig Jones, Executive Director, John Howard Society of Canada: Thank you, Madam Chair and senators. This is
my first appearance before this panel, and if you indulge me, I will read my remarks.
The John Howard Society of Canada is driven by its mission statement, which calls for effective, just and humane
responses to the causes and consequences of crime.
Our 70 offices across Canada deliver evidence-based programs to released prisoners, their families, and a range of
services to more effectively ensure their successful reintegration into their communities. We believe that evidence-based
best practices are the surest way to create and sustain safe communities. The John Howard Society of Canada aspires
to be smart on crime rather than tough. There is that word again. We advocate for policy that is demonstrated to
reduce crime and recidivism as distinct from policy that feels good.
I will just take a little aside here to say that most of you probably remember my predecessor, Graham Stewart, who
appeared before you many times. I encourage you to beat your expectations to the ground, because I am not Graham,
but we will see where we can go with this.
I will not reiterate the points made by others on this panel, except to say that we share their concerns and endorse
their recommendations. Instead, I will assume that the crime agenda passes essentially intact and contemplate what this
means for one small aspect of the larger picture: the state of blood-borne disease transmission in our federal prisons.
Recall that the crime agenda includes the following initiatives. The first initiative includes the replacement of
statutory release with earned remission. Whether the government has gamed out the short-term impact of this policy is
not clear, but we are projecting that it will grow the prison population by as much as 2,310 persons in the first 12
months. Assuming that cell space is currently at or close to capacity, an additional 2,300 cells will have to be brought
on stream. The average construction period for an institution is five years, so there could be a massive increase in
current cell occupation norms in the interim. Overcrowding on this scale has dire implications for the safe management
of prison populations and the working conditions of CSC staff. We can expect higher levels of violence and suicide,
and perhaps accelerated turnover of correctional officers as conditions worsen.
Second, the National Anti-Drug Strategy in its current form promises to add to this prison population large
numbers of non-violent first-time offenders, many of whom will be drug users, and a proportion of these will be
identifiably mentally ill. This promises to strain existing treatment resources to the breaking point, resources that are
already under-supplied in relation to need.
If implemented in its current form, Bill C-2 contemplates growing Canada's prison population. This expansion is
likely, depending on police practices that fall out from the National Anti-Drug Strategy, to have significant
consequences for the safe, just and humane management of Canada's federal prison population.
I will focus on only one consequence, the effect of overcrowding on the spread of blood-borne pathogens,
specifically HIV and hepatitis C.
Correctional Services Canada has, in recent years, been reluctant to permit independent university-based
epidemiologists and public health biostatisticians to investigate the evolving status of blood-borne pathogens and their
transmission between inmates in the federal system.
The Canadian Medical Association Journal in July 2007 published two small prevalence studies of HIV and hepatitis
C infections in Quebec provincial prisons and in Ontario remand facilities. Taken together, these two studies represent
a very small proportion of Canada's incarcerated population, but the findings ought to be sufficient to provoke the
alarm of policy-makers at every level in the criminal justice system.
To briefly summarize the major findings, a study representing only 52 per cent of beds in Quebec's network of
detention centres found a prevalence of hepatitis C infection of 18.5 per cent. That is almost one in five. HIV
prevalence in this same population was 3.4 per cent. This amounts to an infection rate almost 19 times higher than in
the Canadian population in 2003 and a hepatitis C infection rate nearly 23 times higher.
The persistence of needle sharing is known to be independently associated with hepatitis C infection and the costs of
treating hepatitis C once acquired is many orders of magnitude greater than the cost of preventing infection through
harm reduction measures such as needle exchange.
CSC has not implemented best-practice recommendations for needle exchange, though every expert body from the
World Health Organization to the Canadian Medical Association endorses this harm reduction strategy.
A second article in the same journal and the same issue states that the best estimate of prevalence of HIV and
hepatitis C in Ontario's remand population is 11 times higher for HIV and 22 times higher for hepatitis C than in the
Of course, many of these persons are infected when they enter prison, and owing to the shortfall of adequate
treatment options and harm reduction measures, such as needle exchange, they continue to infect other inmates while
incarcerated. It does not have to be this way, but it will be until the Government of Canada and CSC decide to get
serious about harm reduction in our prisons.
Dr. Peter Ford practises prison medicine in Kingston. I have lunch with him occasionally because he is the go-to guy
in this country. He was the first person to alert Canadians that prisoners were converting to needle injection to beat
urinalysis testing. He warns that there is, in the epidemiological literature, a tipping point after which containment of a
contagious disease like HIV and hepatitis C becomes nearly impossible. He told me recently that we are rapidly
approaching that tipping point. He despairs that Correctional Service of Canada is so, in his words, ``terrified of the
bad news'' that they will not permit a systematic and rigorous investigation of the state of blood-borne disease
transmission in our federal prisons.
The crime agenda, in its current form, promises to grow Canada's rate of incarceration at great cost to the existing
system. The government is misleading Canadians with this crime agenda. It will not make communities safer, nor will it
reduce crime. What it will do is grow the prison population, with dire consequences for the management of federal
institutions and the health of the inmate population.
The government is failing to implement harm reduction measures to slow or arrest the rate of blood-borne disease
transmission. If Bill C-2 passes in its current form, we should expect the consequent overcrowding to magnify the
effects of our hepatitis C and HIV prison epidemic. It remains to be seen how long this epidemic can be contained to
In conclusion, Bill C-2 fails the test for evidence-based policy. It makes worse what is already bad, and at great cost
to Canadian taxpayers.
The Chair: Ms. Larochelle, would you like to make a statement?
Dominique Larochelle, Member of the Board, Canadian Association of Elizabeth Fry Societies: Madam Chair, I do
not have statement, thank you.
Senator Stratton: First, I would like to say that I really admire what you do. To be able to do that particular job, in
both cases, is particularly difficult, I would expect and know.
I cannot disagree with what you say. You are there and I am not; but the problem that we are facing is that the
violent crimes that are taking place have become a real concern for the citizens of this country. I will cite two cases
because I would like to hear your response to them.
The first is the Mayerthorpe incident in Alberta, where the four constables were struck down in the line of duty. The
CTV on Sunday night had a report whereby they stated that if this bill had been in effect, that individual would not
have been at liberty to do what he did to those four individuals. I would like your reaction to that case.
Second is an incident involving Peter Whitmore. He is a 37-year-old man who was given a life sentence with no
chance of parole for seven years after pleading guilty last summer to the August 2006 kidnapping and rape of two
young boys from Manitoba and Saskatchewan. His history goes back a long way. He served several short periods in
jail, but was always released at the expiration of his sentences, despite alarming signs that he was likely to reoffend.
Those signs included finding pictures of nude and partially clad young boys in his jail cell.
When we take those two crimes, and they were violent crimes, you can see why the public is coming from the
position where they are now. The public is essentially saying we have done enough study, we have tried everything else;
let us get this done. It will keep that individual from Mayerthorpe in jail because he should have been there a long time
ago. The police could not keep him there; and the sexual predator would have been in jail. How do you react to those
Ms. Pate: Well, I am a mother; I live in the community. None of us wants to see anybody at risk, least of all our
children, and certainly not police officers or anybody else who is in that line of work. However, those are the sorts of
cases that are, with respect, used to buttress arguments for bills like this, when, in fact, it is not clear to me that was the
I do not know the background of either man, aside from what I have read in the media. I do know all the
background, but the CTV version leads you to think there is another piece to the story.
I would prefer to see earlier intervention. I would prefer to see the system working the way it should. In my
experience when I worked with men, the men who got out earliest often were the men who were also participating with
the police as informants, maybe also informing when they are in the prison system. Those are not issues that this bill
The other piece that I would say is that I agree that the system needs to work as it should, and that sometimes it does
not. However, CSC's own statistics show that the violent reoffending is 1 per cent for those who are on parole. If Mr.
Whitmore, as you were presenting it, was found with evidence that he was already engaging in pornography in his cell,
there are provisions to keep people in custody if they are an ongoing risk.
I am dealing with it all the time with women suffering mental health issues. Just last week, there was a young woman
released at the end of her sentence. She was released, from being shackled with three guards with her at all times,
directly into the community. Her risk was that she kept threatening to go to her mother's grave to prove to herself that
her mother had died, and then she would shoot herself. If she did not get there, she might hurt somebody else in order
to get there. I would like to think she may not ever do that; but I would have much rather seen her released earlier in
her sentence, under supervision and with support, and not at the end of her sentence. Now they have put her in a hotel
because they are trying to figure out what else to do with her, and we have about five or six volunteers working with
As a citizen, I do not want to have that young woman at risk or have anybody else be at risk. However, one of the
questions is why has there not been intervention earlier? I presume, from when I worked with men and young people,
that there were signs well before then that there needed to be other interventions. I question what would have
happened, but I do not know that.
I would like to take those examples and say when we look at women, there will not be a differentiation between the
women. We know right now that CSC's and the National Parole Board's own research, their own statistics, show us
that of the women who are released, about 22 per cent end up back in the system, most of them for breaches. It could
be their curfew, or drinking or going out of the radius, they are supposed to be in while they are on parole. Less than 4
per cent is for reoffending. Of that, I think it was 0.38 per cent for violent reoffending.
I am not suggesting that we do not want to prevent that as well. However, if the only way is to keep people to the
end of their sentence without any supervision in the community, then clearly the evidence is there that that is not the
way to prevent. Those women who were returned for breaching their conditions, when they go out the next time, likely
will not breach their conditions; but it also does not take into account why they are breaching their conditions. Is it
because they have no place to live, or they do not have mental health support, or they do not have the services to
support them with their children and those sorts of things?
Yet, the impact of the law will be the same on men and women. That is why I was saying the section 15 rights of
women are impacted. The negative impact of the story of Mr. Whitmore or Mayerthorpe — any police officers being
killed — will impact men and women, I would say disproportionately, even though it is rarely women who are involved
in those cases. When it is women, we all know, because every single case involving a woman that involves extreme
violence is usually front-page news.
Mr. Jones: I do not have a TV in my life, so I did not see the Mayerthorpe thing. I want to be clear that incidents like
Mayerthorpe and Jane Creba are extremely tragic events: our heart goes out to the people, and there is no question on
that. At the same time, they are also extremely rare events. Mayerthorpe is extremely rare, and I question whether it is
a good idea for Canadians to make criminal justice policy based on singular and idiosyncratic events.
My second observation is that human institutions are as perfect as the humans who operate them and who amend
them and who create legislation around them. It is inconceivable and even utopian to imagine that we could create a
legal regime that will prevent a Mayerthorpe or a Creba. These things happen. Maybe, as a mature democracy, we
should be educating Canadian people to the fact that, look, we got it pretty good. Yes, bad stuff happens, but it is rare
and it is, in fact, declining.
Senator Stratton: Thank you. I guess my only concern would be that, from the reports on the CTV article, if Bill C-2
had been in effect, Mayerthorpe would not have happened.
Mr. Jones: That is probably true, but the next event would have happened and then we would have to come back to
the table and ask how we would have prevented that one.
Senator Stratton: I understand that. I am quoting two cases. I am talking about the increasing violent crime in my
city. The public is saying it has had enough, we have tried the other solutions and they are not working. The
government is putting more police on the ground, as you know, and they are putting preventive measures in place. You
could argue that is not enough, and I could ask you, what is enough? I do not disagree. In the end, I really admire the
work you do. I commend you for that work. Just do not give it up ever. Keep hitting.
Mr. Jones: The fact is that it is reactive. What we are doing is reactive. The witnesses before you today, and I
endorse these principles, are trying to be more preventive. We can chase this dog forever, and we will never solve social
problems. We never win the war on crime. We can, however, intelligently and creatively manage it, but this reactive
posture that we are adopting in Bill C-2 will not do it.
Senator Stratton: We will agree to disagree.
Senator Carstairs: I am particularly concerned about the age of consent. I would like to give you a hypothetical
situation. We do not like to deal with them, but that is life. A fifteen-and-a-half year old girl is engaged in kissing a 20-
and three-quarter year old boy, which puts them out of this magical five-year range. He is charged with sexual assault.
He is given a mandatory penalty, and he is put on the sexual offenders' registry.
From your experience, what is the impact on that young man of that kind of situation in terms of his respect for
justice and his attitude about himself and his so-called criminal behaviour?
Ms. Pate: As a mother of a 17-year-old son, I shudder at the thought, and I do not mean to be flippant at all.
Senator Carstairs: I do not either.
Ms. Pate: When I worked with young people, they never thought about the impact. Most people who are caught
doing things that they know to be criminal, which I suspect most young people may not know that to be criminal,
would have no idea what of the long-term impact. The first time they go on a family vacation down camping in the
States or to Florida or wherever they are flying and they are stopped at the border, they will see some of the impacts.
The fact is they have been labelled not just a ``sexual offender'' but likely labelled a ``predator,'' and it will be described
that way because of the age of the young women.
As I see it, in terms of young people and young women and men, I know and who are now adults, the impact could
be particularly devastating. You mentioned the respect for the law. How could they respect a law that labelled them in
such a way for something that they considered a consensual act? It also has and impact in terms of future job prospects.
I mentioned travel and other areas where it is problematic. We already know there is a huge issue around violence
against women. I cannot imagine what it would do to a bunch of young men who have been labelled as sexual
offenders and who have never been violent to then live up to that expectation. It certainly would be a fear I have. I
would hope that would never happen.
The way that the law is framed is more conducive to young people being educated and, if they start to step outside
the bounds, being corrected by parents, teachers or other people around them. It is a huge concern, and I thank you for
asking the question.
Senator Carstairs: Ms. Pate, for 20 years of my life, I taught junior and senior high school students, so I dealt with
children usually between 13 years and 19 years. I did not like it, but I recognized that many of them were sexually
active. If we look at statistics, we know that the average sexual experience of a boy is 14 years for 13 per cent of the
population and for girls at 13 per cent of the population 14.5 years of age. We are now criminalizing that behaviour. In
my experience, that will not prevent young boys and girls from having consensual sex. You have worked with young
persons. We know that young persons rarely look at the results of their actions; they do things spontaneously. How are
we to enforce this law? It is fair to say that we are going to put it into law. How do we enforce this and how do we
prevent malicious prosecution where a dad decides, ``I do not like the fact that my 15 year old is kissing a 20-and-a-half
year old, and I am going to see that charges are laid.''
Ms. Pate: I do not see any way in the legislation that you could prevent that.
Mr. Jones: May I respond to your initial question? In a word, it would be devastating. The evidence is that the
stigmatization that attaches to such a crime long outlives the effect of the crime itself. I live in Kingston, which is prison
central, as you know. I happen to run my dog with a senior correctional official. I will not reveal who that person is,
but we talk because we are out in the middle of a field running dogs and we can talk candidly. I get stories about what
happens to young people who get into the correctional system and the effect it has on them. They generally do not get
nicer. They do not get better. It is very, very bad for them. Many of them do not deserve it.
Ms. Larochelle: Madam Chair, we are afraid this will have devastating effects on the families and on the health of
teenagers who, knowing the risk run by the young boy in the example you cited earlier, could be facing a prison
sentence; we are afraid that secrets will develop, that families will keep a relationship between a teenage girl and a
young man a secret; that all these people will be living in an uncomfortable situation, that law-abiding people may be
led not to reveal, not to discuss, not to talk about the situation for fear of the potential criminal consequences. And
from a public safety standpoint, we think that is not advisable.
Senator Carstairs: The concern I have is that the legislation makes this relationship legal if they marry. Having had
two daughters, I would not have wanted them getting married at 15 years in order to avoid a criminal charge for their
partner. That causes me great concern. Somehow, we say within marriage this is fine. They might in fact be charged
and then get married and avoid the charge. I find it all a bit bizarre.
Ms. Larochelle: The institution of common law marriage and the institution of marriage are recognized in our
society, and this law puts a value judgment on individuals who choose to live in a common law relationship compared
to people who are married.
The Chair: Indeed.
Senator Joyal: Ms. Larochelle, I know that your presentation does not concern reverse onus.
Ms. Pate referred to reverse onus in a constitutional challenge, and knowing your background —
Knowing your professional skills, particularly in very difficult cases — I am thinking, among other things, of that of
Abil Charkaoui, whom you represented in the Supreme Court — what do you think is the constitutional weakness of
this bill with regard to reverse onus?
I know you were not prepared to testify directly on that matter. If you prefer not to testify, please feel comfortable,
but if you think you could offer some comments based on your experience, we would appreciate it.
Ms. Larochelle: I would say that, based on section 7 of the Charter, there are some problems because this legislation
results in reverse onus, which will go against the presumption of innocence and the right to protection from self-
incrimination, since the person must give evidence and testify that he or she will not present a danger in the future.
I have in mind the experiences of individuals who would find it hard to demonstrate that they would not present a
danger in future. I am thinking of the case of young adults who have gone through the youth criminal justice system
because they have been placed in foster families or were victims of abuse. They have been led to adopt inappropriate
behaviour and have been criminalized as a result of a lack of community resources to assist them, as a result of which
these youths have criminal records.
Consequently, if they reoffend when they are adults, they will be put in a situation in which reverse onus will be
imposed on them. And when you say the past is an indication of the future, but you do not address the causes of that
criminality, that can make it very difficult for these individuals to bear the reverse onus and can make it an unfair onus
inconsistent with the constitutional context.
Senator Joyal: Do you consider the fact that there is no time between the commission of the offences that become
recurrent as a factor that the court might consider in finding this penalty unconstitutional, having regard to the
I will give you an example of what you have. You would have a person who would be convicted of a first offence at
the age of 18, the second might be at age 32, the third at age 50, and it would be said that that person is a dangerous
criminal. It seems to me that, if this is a habitual criminal, common sense leads us to conclude that these are acts
repeated over relatively short periods of time, because we are saying that this is a habitual criminal. This is really
someone who is constantly inclined to crime.
A person who would commit a crime over a period of time as long as 30 years cannot be said to be a habitual
criminal. This is not someone who lives from crime as such. In this kind of case, would we not be exposing ourselves to
a challenge on the basis of cruel and arbitrary treatment?
Ms. Larochelle: In fact, that would be arbitrary. Everything depends on the factual framework, on the causal link
between the offences for which the person was convicted and the finding sought by the state through a designation of
No rational link can be established between the convictions and the finding sought, but, if by the simple fact of the
law it must be found that the person deserves the designation of dangerous offender, then that becomes arbitrary and
incompatible with the Charter.
Senator Joyal: That is what leads me to think that, even though the provision has a desirable objective, that
dangerous criminals should not be on the street, some form of common sense should nevertheless be included in this
provision to take into account circumstances that may arise and so that it is not a kind of mindless automatic
application that does not allow a judge or the person who finds himself in that situation to present a reasonable defence
or enable a judge to assess the circumstances in a reasonable manner as well.
Ms. Larochelle: I entirely share your view, but, in any case, the tools that are now entrenched in Part XXIII of the
Criminal Code already enable the courts to impose penalties that reflect the offender's degree of dangerousness,
without us having to add this provision, which might result in arbitrary decisions that are based on the application of
the act but are incompatible with the objectives of sentencing and the protection of society.
Senator Joyal: Do you mean the fundamental principles of the Code?
Ms. Larochelle: The fundamental principles that are entrenched in sections 718 and following of the Criminal Code.
Senator Milne: The section of this omnibus bill I have been concentrating on is the reverse onus provisions. Senator
Joyal has very capably asked my question.
I would like to say, particularly to you Ms. Pate, that I have always had a very soft spot in my heart for the
Elizabeth Fry Society. My mother was in Toronto at a meeting of Unitarian women when Agnes Macphail addressed
them. That group of women went on to the form the Elizabeth Fry Society. I have admired your work ever since.
Mr. Jones, have you any opinions on reverse onus?
Mr. Jones: I have no original views. I reiterate everything you have heard on this panel hitherto. I think it is
overreaching and unnecessary. That is all.
Senator Andreychuk: I echo the remarks about the Elizabeth Fry Society and add the John Howard Society. Mr.
Jones, you will probably have to work harder not only because of the work of your predecessor, but also because of the
work of Kim Pate. For years we thought most women were not being incarcerated. They may have been ancillary and
not the focus, but we woke up to find out they were a significant prison population with which we are still grappling.
Mr. Jones, you indicated you are worried about what will happen after the national anti-drug strategy, but I
understand that the mandatory minimum will be targeting serious drug trafficking offences and importing and
exporting, and it will rely heavily on the alternate use of drug courts. The minister talked about that. Have you
factored that in? The government's position has been that it wants to view the issue of addicts and those who are users
differently from those ones who are traffickers and exporters and importers.
Mr. Jones: The national anti-drug strategy makes a fundamental error at exactly this point. It is rather surprising
that the minister did not actually consult anyone who knows anything about addictions or the situation of drug
trafficking in Canada.
Senator Andreychuk: At least, you presume that to be the case.
Mr. Jones: I only know the evidence, senator, and the evidence is that in other jurisdictions where this strategy has
been tried, the tendency has been to sweep up low-level dealers who are themselves users and addicts. The bigger fish,
who have information to trade, usually get a better deal.
The historical pattern in the United States, where this has been tried every conceivable way, has been to incarcerate
more and more low-level non-violent offenders while the larger importers and traffickers either get off because they
maintain a distance from the actual operations, or trade their information for the arrest and prosecution of people
farther down the chain. It is not an accident that after 40 years of aggressive war on drugs in the United States using all
the techniques that we are about to import to Canada, drug prices on the streets of American cities are cheaper, drug
purity is higher, and availability is better. The national anti-drug strategy replicates what has not worked in the United
Senator Andreychuk: Can you define what you mean by ``low-level drug dealers''? In the criminal system we wrestle
with the fact that often we do not get the person who is the mastermind and we often trap the others. Are you talking
about that when you say ``low-level''?
Mr. Jones: I refer to the kids on the street here in Ottawa, the low-level dealers who basically sell to each other and
sell to support their own habits. They will be scooped up in record numbers because they are the low-hanging fruit.
They are easy to get. When was the last time we had a bust of a big drug kingpin? It happens very rarely.
Senator Andreychuk: Apparently, there was one in Ottawa recently.
Ms. Pate: Thank you, both Senator Milne and Senator Andreychuk, for your kind comments about the
organization. The work I do always looks good when you are the person who is the voice, but many more do the work
so I do not want in any way to take credit for that. Thank you for recognizing the organization.
In terms of issues, when I think of what Mr. Jones has described as low-level, I think of cases such as Hamilton and
Brown, racialized women on social assistance who were given the ``opportunity'' — they were not addicts themselves —
to make more money than they could make in a year on social assistance. Whatever judgment we may impose on that,
the impetus was to make ends meet for the month, to pay the rent off for the year, gifts for their kids or whatever. That
is who I think of as being captured. Under these provisions, they would not look low-level. Importing from another
country is a serious offence and they were treated accordingly. Even when the judge tried to take into account under
the current provisions their situation, it was overturned at the Court of Appeal level. Those are the situations that
many of us are concerned about, as you have already heard.
In addition, when we talk about women, we see that racialized women are more likely to be impacted. Your
question about drug courts is a good one. Our experience is that most of the drug courts are taking the least serious of
those, so we are unlikely to see importation and trafficking charges ending up in the courts. If they are trafficking
charges, they may be teenagers picked up, but in our experience they are not the ones being processed through.
In the issue of addictions, as the ombudsman's office has articulated very ably, those should be dealt with in other
venues, not criminalizing individuals for anesthetising themselves to the reality of their abuse as children, trying to
survive on the street because they are poor or because they are selling their bodies or whatever the issues are.
There are significant issues about how this may ramp up. Certainly we have seen it, as you have already heard, of
the use of hard drugs in the prison system. CSC hired Dr. Ford and Dr. Reilly before him and they predicted that we
would see more hard drugs and that the use of marijuana in the prisons would minimize. In fact, it is virtually
nonexistent now in the institutions; yet the importation of dangerous drugs such as PCP and heroin, that move
through the system faster, is a dangerous situation, not the least of which is the blood-borne aspect.
Senator Andreychuk: Ms. Pate, you touched on the psychological and mental health problems that are not
addressed. As they are not addressed, one ends up in the criminal system because it becomes an easier way to address
the problems. Working with children, I found that we did not have the mental health facilities for the children who
needed it. They were so chronically in the community that they just got involved in the criminal system, became
criminalized and in the courts and within the criminal system.
If you were to trace all the cases of women you work with, what if we had intervened earlier on not just societal
issues but the mental health issues? You had two cases. You pointed out that they had chronic mental health problems.
Is that the trend, that we should concentrate on mental health as one of our preventive strategies rather than waiting
until they are trapped in the criminal system?
Ms. Pate: Mental health is one of the strategies but not the only one. Think of the people who, for many years, were
focused on reducing the number of people in prison. The heads of CSC, so not people who were advocating outside
institutions, determined that I believe close to 75 per cent of individuals in prison were in for non-violent offences.
Some had mental health issues; some not. Some would have drug addiction issues; some not. Certainly many would be
poor and would have had experiences of marginalization because of that poverty. Some would have all of those. Some
would be racialized as well.
As we have cut back resources — health care, education, social services — the default is the criminal justice system. I
say often, to get the short time-frame, when I talk to the media that it is the only system that cannot say, ``No, sorry,
our beds are full; sorry, we have no more room; sorry, our waiting lists are too long.'' I cannot imagine what is
happening in some European countries where they are saying the numbers are too high; you cannot serve your sentence
for another five or six months, until we have room in the prison. That is not something we have even envisioned here.
Yet, it is the default. It is the only system for when the police have no where else to take someone. Sometimes they take
people they recognize need to be in protection themselves, such as battered women, and end up in the criminal justice
system. Sometimes it is just temporarily on remand. If you look at the remand population, which is not part of this but
will be impacted by this legislation, in the neighbourhood of 70 per cent of the women in prison in this country are not
even proved guilty. They are awaiting trial. That is the point I think we need to be addressing.
A criminal justice response is seen as appropriate rather than really demanding that resources be shored up in more
appropriate places like health care, education, social services and, in particular, mental health care. That is why we are
seeing women as the fastest growing population because they are the most likely to be reliant on those services and as
they have been cut, more women have ended up in the system.
Senator Andreychuk: There was a point made about the transmission of HIV and drugs in the remand centres in
Ontario being so much higher than the rest. I would certainly like to have an answer to that, but if it is too long, it
could be in a written form. That was a shocking statistic.
Mr. Jones: It is because of the lack of adequate harm reduction measures in the detention centres and the
overcrowding. The fact is that these places are really grim and you would do anything to get out of it, even
What can we do about it? We know what to do about it; we have the evidence. Will we do it? That is another
Senator Carstairs: It is very clear that what he said is 11 times higher for HIV and 22 times higher for hepatitis C
than the Canadian population. He did not compare remand centres.
Senator Andreychuk: I took it to be remand centres.
The Chair: It is the population in general.
Senator Andreychuk: What I want to know is whether Ontario is higher than other remand centres in Canada?
Mr. Jones: That is a problem because we do not have the research to give us an answer to that question. This is one
of those things where we need more research, but CSC says no thank you; we do not want to know.
Senator Andreychuk: The clarification is that it is higher in remand than in the general population. If these people
are released —
Mr. Jones: Senator, I encourage you to look at the original article. This is a very small study of a very small
population and these numbers are alarming because it is a small sample in Ontario.
The Chair: Mr. Jones, if you could provide us with the reference to the articles in question that would be very
Mr. Jones: It is in the submission.
The Chair: This committee will be hearing from Correctional Services Canada. There are avenues to explore with
Senator Baker: As the witnesses will realize, we always show deference to the former questioner who is a former
judge and so we show her deference in the longevity of her questions.
I enjoyed both presentations and the written material that I have been going over.
You did not address directly the area of interest on which I was supposed to ask questions. That concerns the drug
impaired driving provisions of the new bill. I want to ask my one question to Ms. Larochelle. It arises from the
question asked of her by Senator Joyal. The question is appropriate in this circumstance because of the experience of
Ms. Larochelle before the courts. She has a remarkable history of arguing cases that are quite difficult to argue.
I am interested in her answer regarding the difficulties she would anticipate encountering in proving the elements of
reverse onus. It is whether somebody was not a dangerous offender or whether somebody should be released. As we
know, various sections of the Criminal Code demand a reverse onus. Some of them are identified in bail provisions
where somebody is charged with an offence under certain sections of the Criminal Code.
In this particular case we are talking about, here is my question. The judge looks at your client and says you now
have to prove to me why I should not declare you a dangerous offender, or the reverse onus is on the person charged or
convicted to prove something to the judge. In your opinion, are the decisions of the judges fairly consistent on the
elements they identify as far as the reverse onus is concerned?
When you do your research work in case law to argue to a judge on reverse onus on behalf of your client, do you
find a consistency, regularity, and do you find you use the words an arbitrary decision? How often would a decision be
made by a judge that did not comply to a set of rules established — like the principle of stare decisis, where it is laid
down, that is, these are the elements of the offence, that has already been decided — or is it something new that is
terribly difficult to argue? Do you find that judges use an incredible amount of discretion and do you find it more
difficult to make the argument if the person you are representing is poor?
Ms. Larochelle: With your permission, I will focus mainly on the last part of your question, which is of particular
interest to me since my practice is with Montreal Legal Aid. I have limited means available to me, and a clientele that is
poor and among those at the greatest risk of finding themselves in situations that would be pushed into the court
system by the bill before you today.
Where there is reverse onus, the burden is transferred onto the accused. It is therefore up to the accused to prove his
case. He has to do his own research, support his claims by experts, who are costly in the criminal justice system. Costs
are always associated with reverse onus. Having regard to the limited resources of the system, that will have an impact
on a person's ability to bring sufficient evidence to meet the burden transferred onto him, whereas this is incompatible
with the presumption of innocence.
The consequences are greater for a poor person, who does not have the intellectual or cultural tools or ability to
guide his lawyer and to help him discharge the burden that he must meet before the court.
Senator Baker: Ms. Larochelle answered the second part of my question, which was only one sentence, really just a
remark in passing. However, she has not addressed the major portion of my question.
The Chair: Are you asking to be allowed to put your question again?
Senator Baker: No, I do not want to put it again.
I do not know. Is it unfair for me to ask you the first part of that question? I think it is probably unfair, is it not?
Ms. Larochelle: If I properly understood the first part of your question, the decisions of the court, you want to know
whether judges are in fact doing a good job in reverse onus cases.
Senator Baker: No, consistently.
Ms. Larochelle: I am not even going to risk giving an answer to that question since each case stands on its own
merits. It is too difficult a question, Senator.
Senator Baker: And you have to continue working in the judicial system; of course you do.
Senator Merchant: I seek your advice on the difficulty between reforming the individual and protecting the public by
locking up wrongdoers so that at least during their lock-up, they do not reoffend, although, Mr. Jones, you said they
do frequently reoffend in prison. I think that is what you said, or that the inmates can hurt each other.
In all political parties, there are some that lack confidence in the parole system. Attention focuses on those who are
released and reoffend, and perceived failures become the focus of attention. It is easy for many in the public to ignore
the successes. That places a chill on the parole board to be unduly cautious about people being released.
Overly restrictive release in turn destroys hope for prisoners so they, in turn, turn away from programs in prison
that are designed to help them. They turn away from being helped in changing how they think and how they act. For
the parole board to do its job, it must take risks with early releases. The benefit that that brings to the individual
convict and the whole management information system is to change people's attitudes, but understandably, when risk-
taking fails, many in the public are angry and worried.
I ask the impossible question of you. I am looking for your views on the way the parole system ought to operate.
Given the practicalities of public fear, is it possible to get voter acceptance of anything like a parole system being
allowed to focus on the person rather than the crime and being allowed to take the risks that early release involve?
Mr. Jones: What a simple question.
I am not an expert on the parole system, but I do think that we have fallen into the trap of selling short-term
solutions to extremely complex problems. I give you the example, again, of the national anti-drug strategy. I know this
will sound like a departure, but follow me.
The national anti-drug strategy is a back-end response to a social problem that Canadians have created for
themselves called drug prohibition. Out of drug prohibition, we have created enormous crime, including in the city of
Winnipeg. Out of the residential schools system, we have created enormous suffering, much of it played out on the
streets of Winnipeg. This year is the one-hundredth year anniversary of Canada's war on drugs. If you put our war on
drugs together with the residential schools problem, you have the north end of Winnipeg. Now we want to clean up,
but while we want to clean up with things like the correctional system, the criminal justice system and the parole board,
we continue to create the problem.
As a society, we have lulled ourselves into believing that we can do these quick fixes for social problems that have
been 100 years in the manufacturing. I am sorry that is probably not the answer you were looking for.
Senator Merchant: I knew the answer was difficult.
Mr. Jones: You were right.
Ms. Pate: You do pose a difficult question. There are not easy, simple answers, but there are some answers. The fact
that our paroling body has become more of a detaining body is and should be a concern for all of us. When the parole
system was developed, it was developed because there was fairly widespread understanding, both within the general
public but also with those who were expert in this, who are working with corrections, that the best and safest way for
people to integrate into the community and eventually rejoin us in the community was to do so in a structured,
supervised way. Parole was set up to do that.
When mandatory supervision was replaced by statutory release, it became more discretionary. As we have seen,
there was more focus on, ``Can we predict every single piece of human behaviour?'' We all know that is not possible,
but we can predict some things. As there has been more and more focus on being risk averse by the parole board, we
are seeing more and more people being detained, and not necessarily those who pose the greatest risk. Then we have
seen other mechanisms develop, such as section 810 of the Criminal Code. Why was that not used in Mayerthorpe,
would be my question. Why was someone who was known to be a danger not put on a peace bond by the police? The
police had ample reason to do that. I do not know the answers to those questions. That is why I say I do not know
other than what has been in the media or the dramatization.
We do have to challenge ourselves and the parole board and the Correctional Service of Canada to rethink some of
those things. It has now become commonplace that individuals who are in prison are charged with outside offences.
Using examples of people who have been in the media, Ashley Smith started on a breach of probation and she ended
up in custody, and it was through resisting restraints, through fighting back against staff, things that were really
probably more symptomatic of her mental health issues, that she started accumulating charges and ended up doing six
and a half years. Most people in the public heard six and a half years and presumed as a young person she must have
done something really bad. As it will come out, it is quite the opposite. It was a whole series of charges. The longest
sentence I can find with what I have been provided access with and that is a whole other issue, and we are pursuing why
we are not providing access to information, was 137 days. We have had judges comment, why is it that someone is not
only charged outside has a longer sentence, has their sentence extended, but they are also then put in segregation so
they are doubly charged in context where they may not even fully understand the situation.
We are tending to focus more and more on everybody earning their way out, presuming that everybody has both the
capacity and resources, and I mean that in terms of programs available to individuals to do that. I hope when the
Correctional Service of Canada appears, they can speak. I think they cannot speak as candidly, quite frankly, as we
would like them to about the reservations they have as staff members trying to do this work when increasingly there are
people placed in isolation in larger numbers so fewer people have access to programs, fewer opportunities to work their
way out, fewer opportunities to develop meaningful ways to support themselves when they are in the community, and
greater likelihood that they will be detained if they have mental health issues or other challenges, not because they are
necessarily a danger to the public but because they cannot jump through the hoops. I hate to use that term, but that is
how it is. If you have not done this and that program, even if they are not even offered in that prison except once a year
and you came in last year, then you may not have access. That is a frustration that many of us share with those
working inside the system who, for fear of losing their employment, often cannot say the same things.
I think your concern is a real one. I suspect that if we saw more resources in the community preventing people from
ending up in the system, or more focus on provisions of the Corrections and Conditional Release Act that allow people
to be released in a structured, supervised way, we would see the benefit of it long-term, both in terms of fiscal realities
but also human and social costs.
Senator Prud'homme: I would like to join with Senators Stratton, Andreychuk and Milne in showing my support for
both of your organizations. I know it is not easy, especially when there is tempest in the country and people like to have
a feel-good kind of legislation so they can pretend to sleep better, but you know they will not. I personally do not
believe so. I want to thank for the work you do.
Have you presented these views to the committee of the House of Commons? Was there any party that proposed to
have an amendment pertaining to what you presented? I know there was no amendment.
Mr. Jones: I presented my views to the House but no amendment came out of the session in which I participated.
Senator Prud'homme: Years ago, a colleague of mine, Jim Fleming, who eventually became a minister, and I
proposed the death penalty or 25 years. I went to defend that to killers in the Drumheller institution. I saved my neck
by saying, listen, I am offering you 25 years instead of death. Which one do you prefer?
We discovered then, and it is the same today, that they public does not trust the parole board. People do not have
the trust in it that some have. Many of their apprehensions come from the fact that the parole board may not have
clearly understood the mood of the country.
Do you think that we should start, as I will, looking into an amendment to the parole board — to possibly add a
judge to the parole board? I am searching for something that will appease people, because I am very surprised by this
new charge — it is French law imposed on Canada. I cannot believe that 45 years later we would see la règle nisi, that I
learned in law, where the burden of proof is on your shoulders. You have to prove to me that I should not do this or
that to you. This is French law. If people are happy with French law across Canada, so be it; but I am not sure they will
be very happy when they see the consequences of it.
I do not have any more comments. I am very troubled; I do not hide that I am troubled. Not being a member of the
committee, I will see what the committee will do. I would hope the committee will have amendments. I will vote for
reasonable amendments, regardless of the blackmail of the other chamber, where I was for 30 years. I am not
impressed by people who put a gun to my head saying, you do that or else.
I have legitimacy as a senator, according to article 17(1) of the Constitution, and I intend to exercise it.
The Chair: Perhaps Ms. Larochelle would like to answer the French law question.
Ms. Larochelle: No, I do not have any comments.
Mr. Jones: Is the parole board to be governed by law or the mood of the population? I would hope that the parole
board would be governed by law, which are grounded by principles.
Senator Prud'homme: So would I.
Senator Fox: Thank you, Madam Chair. I have a question mainly concerning mandatory minimum sentences. But
before asking it, I would like to know whether there are parts of this bill — which you have no doubt examined in
detail — that you support, or do you instead reject everything it contains?
In addition, are there parts that could easily be amended to make them more acceptable in your view?
We can start with Ms. Larochelle.
Ms. Larochelle: Having examined the bill in detail, although I did not prepare the brief for the Canadian
Association of Elizabeth Fry Societies, I would say that, in our view, the current law is sufficient.
Part XXIII of the Criminal Code, which sets out the sentencing principles, allows judges all the necessary leeway in
imposing appropriate sentences that are consistent with sentencing objectives, including the protection of society.
The appellate courts have powers to enact rules or parameters within which lower court judges can impose
sentences, while enabling trial judges, who are well aware of the community in which they sit and of the personal
situations of the defendants who appear before them, can impose appropriate sentences.
Sections 810 and following of the Criminal Code afford the courts all possible leeway in making prevention orders
where there are reasonable grounds to believe that a person presents a risk to society.
The evidentiary standards already in the Criminal Code reflect the values of Canadian society, which have
developed over the years and in the course of parliamentary debates and the debates of both Houses, which have
developed as a result of the adoption of the Criminal Code.
Senator Fox: What I understand is that you think this bill is not necessary, that the present legal framework of the
Criminal Code affords society sufficient protection.
I come to the question of mandatory minimum prison sentences, which, precisely, take away the judge's discretion
to determine what the individual's fate should be. Can you give me the additional number of persons who would be
imprisoned in Canada based on this fairly generalized system of mandatory minimum prison terms in this bill?
How many persons would be imprisoned today if this bill had been passed last year?
Mr. Jones: I cannot give you a number. We only did a calculation on the basis of the abolition of statutory release. If
the bill passes in its current form, then you have the concatenation of these effects, mandatory minimums plus the end
of statutory release, plus, plus, plus.
Senator Fox: All right. Going back to the question of cost, I am impressed by this passage on page 13 of your brief:
A RAND Corporation study. . . revealed that California's ``three strike law'' resulted in an increase from 9 per
cent to 18 per cent of the state's budget being allocated to corrections. This, in turn, necessitated a corresponding
40 per cent reduction in state budgets previously allocated for such vital resources as education, health,
workplace safety, environmental and social services.
I refer back to the previous testimony of Mr. Waller, who talked about what Canadians want, and what they
especially want is lower crime rates, less violence against women and against everyone in this society, but it takes
organizations like yours to do the kind of work you are doing.
Are you not afraid, given the government's limited financial resources, that, as a result of the increase in the number
of inmates in the system and the elimination of statutory release, there will be a staggering increase in government
budgets, including those for the construction of new penitentiaries?
In Quebec, approximately $500 million is allocated for the construction of new penitentiaries, and that was even
before this bill was tabled. Are you not afraid that the government will make budget cuts that normally should be made
to other programs?
Senator Stratton referred to a ``three-legged stool,'' one of the legs of which was prevention programs. Can you
answer that question?
Mr. Jones: That is precisely what I fear. This crime strategy replicates a discredited strategy that was tried and failed
spectacularly in the United States. In my opinion, we should be frontloading our programs for prevention. Call it
whatever you want — a three-legged stool, four pillars — I am agnostic on that. Putting all this money into
incarceration is just money down the rat hole.
Senator Fox: On page 13 of your brief, you say:
It may come as no surprise therefore that jurisdictions like Australia and the United States are working on
diminishing the use of mandatory minimum sentences in light of their negative experience with the consequences
of such approaches.
How can you explain why we are working so much against the trend? You state in your brief that other countries
have tried these measures and that they did not work, that they even had disastrous budgetary consequences and
resolved nothing with regard to crime. You say they may even have had the contrary effect. How then is it that Canada
is headed in this direction?
Mr. Jones: The two biggest jurisdictions in the United States where mandatory minimums were implemented —
California and Florida — are currently trying to extricate themselves from mandatory minimums precisely because all
they do is grow prison populations and bankrupt educational systems. Why are we going that way? I think it is because
there is an impression that people are looking for a quick fix. It feels good to lock them up and throw away the key and
do not look at the long-term consequences. It is a short-term, short-sighted policy.
Ms. Pate: You are looking for the number of how many people would likely end up in the system. I am not sure if
Public Safety Canada or Correctional Service of Canada has done some studies; I would encourage you to ask for their
research because they made some good estimates on the cost of this proposed legislation.
In addition to what my colleagues have said, this is exactly why we appealed to you as the Senate as the sober second
thought to examine this bill. I often say my dad is a working-class man and I go to him to try to convince him of
something. His response to my way of thinking was if this is true, why are not people in charge of the country telling us
this? Why are they not telling us that this is not the way to go, that we should be investing more in health care and
education? It makes sense to him, to his friends and many other people. When I go into communities and ask what you
would rather spend your money on, putting more and more people away or investing so that those individuals are held
to account but also so the entire community benefits? I have yet to find a community that says otherwise. However, if
you ask a simple question, you will get a simple response.
Since Ashley Smith's death on October 19, I cannot tell you how many people have written, called, communicated
their horror that this happening in Canada. People are horrified that we could end up with a young person in custody. I
suspect the same thing judging by the media and the call-ins in the last 48 hours since Mr. Richard has released his
report. How could it be that kids were sexually assaulted in custody? How could it be that kids are being tied to beds,
put in restraint chairs, straightjackets, assaulted in custody and we are not knowing about it? Part of it is that things
happen behind closed doors. People have been charged in relation to Ashley Smith's death. I have been doing this for
25 years and this is the first time I have ever seen that happen. It is not that I want to see people charged, but we tend
not to know what happens. If a few of us had not known what had happened in her case, I suspect we still would not
have heard much about it. It would have been framed as another suicide in custody. The fact that she was on suicide
watch and somehow died while under supervision would have floated away.
I would implore you as individuals, as parents and grandparents and thinking, important members of our
government to be the ones to take the initiative to say that this bill does not make any sense. To be held hostage —
those are my words — by being told that you must pass something or it will go anyway is a travesty and it is a shame to
Canada. Those are my personal opinions.
Senator Watt: I will try to cover dangerous offenders. I worry about what will happen if this bill becomes law
tomorrow. I am from the North, where everyone knows each other. The communities are small and populations are
not large. A person who is a repeat offender in a community is very well-known by everyone. If he is a hardened
criminal, the community definitely would like to see him put away, but everyone is not in the same category.
We do have huge numbers of repeat offenders who are not hardened criminals. They might start with, as you
mention, having a drug in their pocket and happened to have been caught because someone squealed on him; he is not
even a trafficker. We have many of those incidents in our community. Many of our young people have very little to do
in the small communities and they choose to keep their social life active by using either alcohol or drugs. We see a lot of
that in isolated communities and this is well known to everyone.
A young person may be taken away for X numbers of months and then is brought back home because he has
finished the normal sentence. In many cases, that same person is taken away again, sometimes on the same day, not
necessarily because he has again got caught with another thing in his pocket, or whatever. It could very well be because
he was being monitored on a daily basis. The minute he arrives, the police are on his tail, so they look for him to make
a little mistake — maybe not even a mistake; the police authorities may even coach him to say the wrong thing. I speak
for the Inuit, and at times I try to speak for First Nations, too. The authorities take advantage of the weakest or the
lack of knowledge in terms of law. I am not saying everyone is in the same category, but there are many such incidents.
When that person comes out of prison, he gets worse and worse, as you stated, and moves in the direction of becoming
a hardened criminal after that. One of the things that worries me is if this bill will apply retroactively to the people who
have been repeat offenders, and I do believe it will apply retroactively.
The Chair: Senator Watt, I know you have been very patient but we are now running overtime and I am thinking
about the staff and interpreters and everyone. I wonder if we could cut to the chase.
Senator Watt: I always like to put a good preamble in.
If this bill goes through, it will not help my people. It will make things worse. I am quite convinced of that.
Again, you used a young woman as an example, one who is particularly disadvantaged by a number of things.
I would like your point of view on why you made that statement, referring only to young women and not the young
If it is a financial issue, I can understand that if you do not have a way to fight for your own rights, especially where
this law says you are a criminal before you are proven a criminal. It is a reverse onus, so it will be hard for those young
people, and not only for them but any Canadian children, for that matter. They do not understand the law the way it is
today. Imagine what it will be like when they try to defend their own rights and say they are innocent one way or the
Ms. Pate: I said that, and I focus on young women because it has been 17 years since I worked directly with men,
although I still keep in touch with some of them. I would agree with what you are saying. It will disproportionately
impact many individuals, men and women, young people, from Aboriginal communities, First Nations, Metis and
Inuit. We are already seeing some of that.
Last week, I was in Saskatchewan as a young woman was being released back up North, and she was terrified that
people would know where she had been for fear that would be reinforced and everyone would be watching and she
could be the person they would blame for the next thing that happened.
For the two women I am talking about who are facing dangerous offender designation right now, and this bill would
capture them immediately, it is all based on charges that have emanated from the prison. That is a piece perhaps I
should have articulated earlier. Most people are thinking of the challenge people are facing in the community. I am not
suggesting other prisoners and staff do not deserve to be protected, but the correctional investigator can give you
clearer evidence on that because they have access to all the internal documentation. For the women I am thinking of,
virtually every single altercation, if not all of them, was precipitated by the actions of something that happened in the
prison system, and they were responding to it. I would say in some cases they were provoked into a reaction by the way
they were treated, and certainly, it is a concern that has been escalating for some of those women since the death of
Staff solidarity, which is understandable, can look very different when the staff is responsible for locking people up.
Women are sometimes intimidated by it, and it may not have been intentional on the part of staff or it may not have
This is a clarification that what may generate some of these provisions may not necessarily be situations happening
in the community, which is what the public is ostensibly responding to.
Senator Milne: You are telling us, to be absolutely clear, that in the case of these two women who may be declared
dangerous offenders or long-term offenders, it is all because of a constant adding on of charges for things that have
happened while they have been incarcerated, not for the original offence whatsoever?
Ms. Pate: That is correct.
Senator Milne: It is a snowball effect while they are in prison.
Ms. Pate: That is correct.
The Chair: I thank you on behalf of all the committee members. It has been a most interesting and instructive
session. We are very grateful to you all for having been with us.
Honourable senators, our next meeting will be tomorrow morning at 10:45 in this room, where we will hear from the
Canadian Centre for Justice Statistics and then from the Office of the Correctional Investigator.