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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 14 - Evidence, September 30, 2009

OTTAWA, Wednesday, September 30, 2009

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), met this day at 4:06 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.


The Chair: I see a quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.


Today, we continue our study of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody). Our first witnesses are, from the Canadian Association of Elizabeth Fry Societies, Lucie Joncas, President and Kim Pate, Executive Director.


From The John Howard Society of Canada, we have Craig Jones, Executive Director. These are all witnesses that have appeared before us in the past and always keep us fascinated. We are delighted to have you all back with us. I believe you have agreed among you that we should begin with Mr. Jones.

Craig Jones, Executive Director, The John Howard Society of Canada: Thank you for this opportunity to testify before you again. As you know, The John Howard Society of Canada has a long history of advocating for principles-based criminal justice legislation that accords with Canada's Charter of Rights and Freedoms and our international obligations on human rights and the humane treatment of prisoners.

We are a non-profit charitable organization overseen by volunteer boards of directors. Our mission calls for us to advocate for effective, just and humane responses to the causes and consequences of crime, and our thousands of front-line workers deliver evidence-based services and programs across the country to enhance community safety and the prospects for successful reintegration of prisoners at the end of their sentences.

I have read through much of the testimony in consideration of this bill, and even watched a good part of it on CPAC. I find myself in substantial agreement with the view that Bill C-25 will do nothing to enhance "truth in sentencing." Rather, it will contribute to greater delays, exacerbate already existing injustices and further erode judicial discretion, which is a bedrock value of our criminal justice system.

In matters such as these, where the expert and practitioner testimony is nearly unanimous, I implore you to take seriously Professor Manson's observation:

There is a serious problem of intelligibility . . . within the Canadian sentencing system . . . because we have no coherent and practicable basis in principle upon which to build an effective, fair, just and intelligible sentencing system. Our system has grown historically through a series of small, unintegrated changes effected in response to particular perceived goals without any over-arching guidance from principle and empirical evidence.

In this instance, as with the government's desire to introduce mandatory minimum sentences, the real target is not truth in sentencing, nor is it a desire to unclog the courts, since the expert evidence before this committee argues that it is more likely to have the opposite effect.

The real target of Bill C-25 is judicial discretion, and the consequence — as the minister admitted in his testimony of Wednesday, September 16 — will be to grow the federal rate of incarceration. That has been the thrust, both in rhetoric and legislation, since the Official Opposition Minority Report on the Corrections and Conditional Release Act, published in 2000, of the then Canadian Alliance party. Much of what the government has issued since coming to power, including the incoherent and unprincipled recommendations of the Sampson panel report, has been lifted from that document.

Growing Canada's rate of incarceration by limiting judicial discretion is the probable outcome behind the provisions of the National Anti-Drug Strategy, which advocates more and harsher punishment for drug users who traffic in order to stabilize their own consumption. It is also the likely impetus driving mandatory minimum sentences for serious drug crimes.

What unifies these various policy initiatives is that they are all contradicted by evidence of what works to improve public safety in common law jurisdictions with which Canada usually compares itself. However, they do grow the rate of incarceration.

The history and evidence in regard to mandatory minimum sentences, for example, is clear and easy to comprehend, since the experience of the United States has demonstrated beyond question that mandatory minimum sentences for drug-related crimes do not deter. Of course, the "great incarcerator" to our south, where 1 per cent of the adult population is incarcerated, has reached the limits of its experiment in hyper-incarceration. As you know, California — where mandatory minimum sentencing spawned a binge of prison building in the 1980s and 1990s — now finds itself having to release thousands of offenders because it cannot afford to hold them through its current financial crisis.

That is the context in which Bill C-25 arrives for your consideration. Bill C-25 looks to me like a non-solution to a complex and poorly understood problem, and, if passed into law, it is likely to exacerbate the problems of delay and remand crowding that it seeks to remedy.

If the remand crisis — and everyone agrees it is a crisis — is sufficient reason to justify undermining Supreme Court rulings and removing proportionality, parity and equity from the sentencing system, then the Minister of Justice should be able to produce evidence that the intentional delay of guilty pleas on the strategy of running up time in pre-sentence custody is really at the heart of the crisis.

It is hard to connect the dots between limiting credit for pre-sentencing custody with Minister Nicholson's desire to make our streets safer, since common sense would suggest that, if you have to bring people into custody, you have already failed to make our streets safer. The international evidence strongly endorses various methods of prevention where crime is concerned, but I was unable to find that word in the minister's testimony. Indeed, it has been my experience in preparing testimony for both chambers of Parliament that the Minister of Justice is not much impressed by evidence of what actually works to improve public safety.

To be sure, there is a crisis in remand and the minister claims that Bill C-25 will remedy it by keeping people in prison longer and increasing public confidence in the rule of law. However, as you have also heard from the Canadian Bar Association, the main reason for the increase in remand times is the increasing complexity in criminal cases and the drying up of judicial and court resources.

Mr. Gottardi testified that many of the delays arise from the disclosure process, which is completely out of the hands of the defence — or the defendant — and often out of the hands of the Crown as well. That suggests the presence of multiple bottlenecks in the system — a view endorsed by professors Manson and Weinrath. Minister Nicholson's claim that Bill C-25 will unclog the courts through the one remedy of limiting judicial discretion does not address the numerous other obstacles to speedy resolution of cases.

The bottom line is more problematic. As you have heard from numerous witnesses, we do not have good evidence on which to formulate a response to our remand crisis. Until we do, we should not be passing legislation that might exacerbate that which we seek to repair.

Indeed, you have heard that the more likely consequence of Bill C-25 will be to increase both the frequency and duration of judicial interim release hearings, which will have substantial impacts on the workload in bail courts and in preparation time for both Crown and defence. Bail courts across Canada are already overburdened. Bill C-25 will require a significant addition of resources in order to achieve its objectives. However, the issue of workload in bail courts, as you know, falls under provincial jurisdiction.

It is our view in The John Howard Society of Canada that Bill C-25 should be comprehended in its larger context, which I referenced above, because changes in one part of the sentencing system sometimes produce unintended consequences in another. This reality has not drawn the attention that it warrants from the Minister of Justice.

For example, what will be the likely consequence of Bill C-25 for itinerant courts in the far North? If court resources in the South are strained, as you have heard, they are beyond broken in the North. For these citizens, remand often means detention hundreds of miles from home and family where the predominant culture and language are completely different. It is reasonable to assume — given the limited resources of these courts and their infrequent sittings — that the accused in the far North will spend more time in remand than a person charged with a similar offence in southern or urban Canada. We are talking about Aboriginal persons when we discuss the far North, which means Bill C-25 could have the effect of deepening existing injustices against this already vulnerable and marginalized population.

You have heard testimony that this legislation could result in a 10 per cent increase in Canada's federal rate of incarceration. If current patterns hold, roughly 12 per cent — and perhaps more — of new inmates will suffer from mental illness and substance abuse problems, all of which are typically exacerbated by a prison sentence.

It is our view that, before the Government of Canada embarks on a project to grow Canada's rate of incarceration, it should make a case — grounded in principle and evidence — that such a strategy will have the effect of reducing crime and improving public safety in a context in which crime has been declining for each of the last 26 years.

I will close my submission by endorsing the recommendations of professors Doob and Manson for a launch of a public discussion about Canada's sentencing structure and practices. Indeed, I will call for the reactivation of the Canadian Sentencing Commission. I think we should not make incremental changes with consequences we cannot foresee on the basis of no evidence, faulty logic or incoherent principle.

You have heard your expert witnesses testify that Canada's current sentencing system has broken down into incoherence and unfairness and that the constant accretion of incremental changes, such as Bill C-25 that misrepresents the problem it seeks to remedy, has produced a disjointed and disorderly set of sentencing practices that results in clogged courts, overcrowded remand centres and persistent failures of fundamental justice.

I am reminded of the last days of geocentric cosmology codified by Ptolemy, the Greek astronomer and mathematician. You will recall that Ptolemy's geocentric cosmology was premised upon two unchallengeable principles: one, that we were the centre of all creation, which required that every observable object rotated around the earth; and two, that all objects that orbited the earth did so in perfect circles, not ellipsis.

For many centuries, this cosmology agreed with the available technology of observation until, that is, the superior optics and advanced mathematics of Copernicus and his successor, Galileo. However, before it was overthrown, it had acquired a complexity comprehensible only to those with command of advanced mathematics and physics. In other words, the public could not understand it. The principle that all heavenly objects must move in perfect circles, and the tenacious evidence that some did not, gave rise to a need to reconcile observation with principle and, therefore, to the inclusion of what were called epicycles, or circles upon circles upon circles, in order to make observation agree with principle. These epicycles eventually became so numerous that, as time went on, the mathematics collapsed under the weight of contradictions between observation and the requirements of fundamental principles.

We find ourselves in a comparable situation today. Bill C-25 and other aspects of the government's "tough-on-crime" agenda is an epicycle arbitrarily generated to save a criminal justice system that is breaking down under the burden of contradictory imperatives. The multiple shortcomings of Bill C-25 that have been examined in the course of these hearings lend urgency to Professor Doob's claim that the most important thing the Senate could do is to grasp the opportunity to start a truly constructive process of reforming sentences in Canada.

The Chair: Just before the hearing started, I was observing that this is one of the most interesting committees that the Senate has to offer. Even in this committee, I do not think we ever had a discussion of Aristotelian and Ptolemaic cosmology before. Thank you for broadening our perspective.


Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you, Madam Chair; I am very pleased to be here.


I do not have many opportunities to present with my president, Ms. Joncas, so I am happy she is here with me as well. I will give a brief introduction, and Ms. Joncas will continue with the discussion of the bill in particular.

I cannot offer nearly the sort of evidence that Mr. Jones just gave, but as with The John Howard Society, we are a non-profit, community-based organization. Our 25 members across the country are headed by, led by and policy-driven by community citizens, people who volunteer their time. Many of the people who work for our organization are also volunteers, although we do have the benefit, at least for the time being, of paid part- and full-time staff, of which I am one of one and a half in our national office. We, at the national office, focus on policy and law reform initiatives.

This is not the first time you will have heard us implore this committee to exercise its right of being the chamber of sober second thought, to stop this process and to do, as Mr. Jones and The John Howard Society of Canada have encouraged, a much more fulsome review of the system and manner in which this bill — and others that have preceded it — is interfering with a more progressive agenda, of which Canada has rightfully been proud in the past. We are concerned, as an organization, about the increased costs, both fiscal and social and health. We also have a concern that no attempt has been made to correct some of the serious concerns and pre-trial conditions that have given rise to the very issue of the judiciary expressing its discretion at the time of sentencing by providing credit for time served in custody in such egregious conditions. Ms. Joncas will talk a bit more about that.

Rather than attempt to address the unacceptable, poor and often inhumane conditions of pre-trial confinement of which we have spoken before this committee and others, this bill tacitly condones and, therefore, from our perspective, stands to entrench such conditions and essentially results in the elimination of an onus on the provincial and territorial authorities to rectify those circumstances. The result is that those who are legally innocent will also suffer more severe and punitive incarceration conditions than those who are sentenced.

It is also a concern that those who may be sentenced will potentially serve longer periods if they are also individuals who are more marginalized as a result of their poverty, race, class and, in particular, mental health. We know that women are the fastest growing prison population. We also know that many women plead guilty and are remanded in custody because of inadequate resources in the community. We are especially concerned about the potential impact on the women and girls with whom we work.

This is a situation for which we think Canada should not be proud. We should, instead of focusing on this bill, be focusing on those conditions. This bill will not increase reliance or respect for the criminal justice system, nor will it create safer communities. As our president, Ms. Joncas, will discuss, this is not the future that we wish for our colleagues, our children or for Canada in general.


Lucie Joncas, President, Canadian Association of Elizabeth Fry Societies: Madam Chair, thank you for the invitation. It is always a pleasure to be here.


I will address the committee in French, but obviously I will answer questions later, which I am sure will be an interesting challenge, both in French and English.


The Elizabeth Fry Associations of Canada are concerned by the removal of judicial discretion; once again, we feel this is unjustified. This new intrusion into judicial discretion is one more of the legislative measures that have brought about a substantial increase in preventive detention. These measures include the reversal of the burden of proof in bail applications and mandatory minimum sentences. As a result, questions must be asked about the significant deterioration in detention centre conditions.

In Canada, there is a significant increase in the number of people incarcerated in provincial institutions. If what are known as the "two for one" provisions were justified under the Supreme Court's Houst decision in 2000, they are even more justified today because the need is so much greater.

In its 2005 Beauchamp decision, the Court of Appeal of Quebec has also recognized that the "two for one" provisions are perfectly justified. Allow me to quote that 2005 Court of Appeal decision of R. v. Beauchamp. It says something very interesting. The "two for one" ratio cannot be considered an advantage for the accused. Let me explain. Preventive detention often occurs because of institutional delays. Nor is it the fault of the accused if the evidence against him is not available. This could be a "slippery slope," as they say, leading to guilty pleas by accused who have not been given all the evidence against them. We know that such guilty pleas do occur, particularly among women and most particularly among Aboriginal women and women with mental disorders.

There may be more judicial errors if the process is forced to be faster. I must remind the committee that from 88 to 92 per cent of all cases end quite quickly in guilty pleas. Only 10 per cent or so, in fact, ever go to trial. Let us not forget the delays in the court system. An accused in Montreal who wants a preliminary hearing or a trial may have to wait for six months. How can we now say that he is responsible for that? I have clients who were arrested in July and who have still not seen the evidence against them. Ethically, how can I advise my client to settle? The reason why "two for one" or even, in some cases, "three for one" has been recognized is that there are no programs, no possibilities for rehabilitation and no possibility of release. That all has to be taken into account.

So I am asking you to be extremely careful if you are going to abolish, again, in my view, unjustifiably, judicial discretion over a calculation that the Supreme Court of Canada has held to be fair and that all courts of appeal across the country have deemed to be justified.

I am also concerned about whether such a practice would be considered constitutional. Given that, in 2000, the Supreme Court recognized that it was perfectly justified, and given that detention conditions at provincial level have deteriorated significantly, I do not see how the practice can be said to be no longer justified.

As a very concrete example, a few months ago, a woman in Hull was detained pending an assessment of her fitness to stand trial. Right away, this is a problem because people whose fitness to stand trial has to be assessed should be detained in a hospital setting, and they are not. They are put in jail. That is no secret.

At the prison in Hull, the women are moved out on weekends because of the lack of space. Men are put into the women's section. So that woman, who should not have been in jail in the first place, was put into a van and driven to Tanguay Prison three times as she waited to be assessed. How can we say that conditions like that do not cry out to be recognized by the courts?

The situation at provincial level at the moment is extremely problematic. It is easy for the federal government to say: "We are going to send them to you; keep them, we will not count the two-for-one and we will make it the provinces' problem." This is a huge problem; before you change a practice that the courts have considered fair, I suggest that you visit a detention centre to see the conditions for yourselves.

The Chair: Thank you, Ms. Joncas. We will start the question period with Senator Nolin.


Senator Nolin: Thank you for taking the time to appear in front of us, Ms. Joncas.

I am puzzled because the minister is hammering the fact that, unanimously, the provincial ministers have asked twice in two consecutive years to have measures adopted.


I agree with you, Ms. Joncas. There is a contradiction. Provincial ministers want it that way. When you read the bill carefully, you see that discretion is not being cut off. There is a guideline. Judicial discretion remains.

Given that the courts have recognized the fairness of the credit, I do not feel that the bill does away with the idea. The bill sets out guidelines. These cases are all provincial. All these detention problems occur in places under provincial jurisdiction. The burden on the provinces will be increased. Given your experience, can you to help us reconcile this contradiction?


Did you understand my question, Mr. Jones?

I am personally concerned about being told that the provincial ministers unanimously are asking the federal government to introduce those amendments. On the other hand, we are hearing — and not only from you — that the provinces and territories are responsible for the root cause that was agreed on by the courts to justify the credit system.

How do we reconcile that contradiction?

By the way, we will hear some of those ministers tomorrow.

Mr. Jones: That is great. I will give you a political answer.

Senator Nolin: That is a good area to start.

Mr. Jones: My impression is that the provinces would like more people to plead guilty, particularly people who are eligible for a sentence longer than two years, because then they could be passed off to the federal system.

Ms. Pate: I think I am repeating myself a bit, but it really is the responsibility of the provinces and territories to improve the prison conditions. I think this puts a bit of smoke and mirrors in the way of saying that the issue is that people are serving time based on judicial discretion as opposed to the fact that the real issue is judges do not exercise that discretion in a vacuum. They exercise the discretion in the three-for-one credit, for instance, because of how egregious the conditions are.

Senator Nolin: We have read the decision on the three-for-one, and it is quite compelling why the judges have agreed to that. I think it is a valid answer. The effect of Bill C-25 would be to increase the plea.

Ms. Pate: I think that, and it also avoids the responsibility of having to change those conditions, potentially.

Senator Nolin: You know what they will do; they will ask the federal government to give more money, like they did when we studied the youth justice system a few years ago.

Ms. Pate: Yes. It is interesting that in the mid-1990s, when the heads of corrections were meeting, they were suggesting alternatives to incarceration. I think that was a much more principled, ethical position to start from, saying that we recognize that many of the people — both in pretrial detention and who are sentenced — are there essentially because of social conditions and that they could safely be in the community serving sentences in alternative ways.

Instead of continuing on that path, we have now essentially abandoned the notion that we should address the egregious conditions in prisons, whether they are federal or provincial, and instead focus on pretending that giving longer sentences, more harsh penalties, will create a safer system or community. In fact, we see the very country that has established those starting to shrink from those realities.


Ms. Joncas: We have answered the questions. My concerns remain the same, regardless of the position of the ministers. We go into prisons and we see the conditions in which people are detained. We meet our clients. The ministers may have their position; our position is in the trenches. Crown prosecutors are not crying wolf and asking you for this. The people in the trenches who use the system every day feel that it works well, and that it would be a mistake to reduce judicial discretion.

The Chair: It looks like the translation is not working. Let us take a short break.


Ms. Joncas: I can answer in English if need be.

The Chair: You should not have to. That is the whole point.


Ms. Joncas: As I mentioned, I understand that the ministers may make some claims. I am not opposed to the view expressed by my colleague from The John Howard Society of Canada who wants individuals transferred to federal level because of the significant overcrowding in provincial prisons. My feeling is that the people on the ground, be they prosecutors, defenders or judges, do not want a measure like this. Ninety per cent of cases are still settled and end up with an agreement to plead guilty on the charges. Changing that balance could have very unwelcome results.


The Chair: It is suggested by at least some provincial governments that conditions in remand centres have improved. You say that they absolutely have not.

Have you any explanation? You say that they are deteriorating; can you give me any guidance on how I should interpret such conflicting positions?

Are you talking just about the increase in the population, which, obviously, brings deteriorating conditions in its wake? Might they be talking about an increase in the availability of programs or something similar?

Mr. Jones: Improvement is in the eye of the beholder, obviously. However, the detention centres I have toured since I started in this job two and a half years ago are properly referred to as "buckets" — terminology that I learned from judges with whom I meet and talk about issues — which describes conditions such as overcrowding, highly stressful, dirty, stinky and lacking good quality air. These are all conditions that you would expect to increase stress and tension and exacerbate mental illness.

I do not see any improvement. Having said that, I have only been on this job for two and a half years.

Ms. Pate: My experience in those detention centres — and I often have to walk through a whole series of men's units before I get to the women's unit — is that conditions have not improved.

However, resourcing has increased. Therefore, I will often hear about increased programming, and when we then request to know how many people have actually had access to those programs, it may be that a very small minority have had access to programs or some type of treatment. In my experience, though, it is the overwhelming majority who have not. Staff working in the institutions are often complaining that more and more time is spent keeping people locked up — literally the warehousing impact — and having to keep them calm, such as marshalling people out to the yard and back in; all of that.

The greater numbers of people mean more resources into the prisons, and sometimes I suspect that that gets translated into improved conditions or improved resourcing perhaps, but not necessarily improved conditions in reality.

Senator Baker: Mr. Jones, you say that it stinks in some of those detention centres, remand centres. Do you mean it smells? Can you describe it a little more?

Mr. Jones: The staff to whom I talk have various ways of describing it. Obviously, you have large numbers of young men in their prime hormonal years, so to speak; also incredible levels of tension, particularly because of the high turnover, which they call "the churn." The staff also refers to "the smell of fear."

Men go for days without showers and wear clothes for extended periods of time. The actual cell facilities are filthy. The men sit around watching TV or playing cards and essentially doing nothing. It is literally dead time.

Senator Baker: They are just there.

Mr. Jones: Yes.

Senator Baker: First of all, I want to congratulate both Ms. Pate and Mr. Jones for their excellent presentations. I also wish to congratulate Ms. Joncas for her remarkable recent victories in our higher courts. They are truly remarkable. Her victories never cease to amaze me.

That aside, this is very interesting testimony you have just given because I have read tomorrow's witnesses' briefs in advance. They will say that times have changed and that the conditions in remand facilities are now, generally, the same as those faced by sentenced prisoners.

These are the ministers of justice from Canada saying this. However, you have been in there firsthand. That is a direct contradiction of what these people are saying.

I have two short questions, and I want you to comment on the other thing they are saying. First, they say that the remand centres now are just the same as that held by long-term prisoners. Second, the majority of people on remand are there because they want to be there; they are intentionally staying in remand — in these holding cells, we will call them — because they will get the two-for-one. In their submissions tomorrow, these ministers of justice will tell us this over and over again.

I would like you to comment on that. That is my first question. Following that, I have one further question to ask, if the chair will allow.

Ms. Pate: If the conditions are approaching those in federal prisons, we know there have been situations where — as we know in the one that has been highly publicized about the death of Ashley Smith — sometimes those conditions are egregious from time to time. As overcrowding occurs, we do not want to see an equalization of egregious conditions in federal and provincial prisons.

I have recently been in one of the provincial institutions and seen piles of garbage. Literally, the stench that Mr. Jones talked about is being added to by the stench of garbage. Women described not being given toilet paper and instead using their sheets, then giving their sheets back and being given nothing to replace them.

I am not suggesting that such things happen every day, but I certainly have yet to go into a provincial jail and not see something that looks to me like a significant breach of the Charter and human rights.

Of course officials will say that the conditions are improving. However, does that means that all conditions are declining because of overcrowding, generally? That is the question to ask.

I would ask also where the proof is that people want to be there. I have yet to meet a group of people anywhere who wish to stay. Occasionally, someone will say, "Yes, I agree to stay an extra week or two because I cannot get out and find an apartment right now anyway, and, in all likelihood, I will get prison time." That I have heard from time to time. However, I have not heard someone say that he or she wants to stay in jail so that they can bank up some time. It is quite the opposite; people want to get out.

I would ask them also how many judicial supervision beds are available. Remember who is locked up in pretrial detention. It tends to be those who are most marginalized and have the least resources in the community. Therefore, how many pretrial detention beds are there, such as a halfway house?

There used to be plans to have those right across the country. I am not aware of any. If I am wrong, I would be happy to be corrected. How many judicial interim beds are there? How many bail supervision programs? How many bail supervision assistance and surety programs?

When those existed in the provinces and territories where they existed — and they did not exist in every one — we saw decreases in remand and probably improved conditions for those who were in remand. It was not across the board, but certainly we saw some of those.

Therefore, yes, we may be beyond some of the stages of when I used to walk in and see vermin, open sewers and those sorts of things in provincial detention centres. However, that is a far cry from where we want to be as far as Canadians with the human rights and Charter protections that we have, at least, on our books.

Senator Baker: That is an excellent answer. I notice that not many people have addressed this question that is in this bill. I would like Ms. Joncas to give the committee the benefit of her knowledge on this.

The bill says that the credit means anything up to one year and then beyond that up to 1.5 years. A day is a credit; if it is a day for a year. For any credit given, the judge, it says, must give reasons for the period of time that he is sentencing someone to jail, taking into consideration the credit.

It then goes on to say that the judge shall, as well, in the record, while on the record, say exactly what sentence he would have given if he did not give any credit and now what he is giving with the credit. The judge must give reasons. Then it says that failure to comply — to give reasons — "does not affect the validity of the sentence imposed by the court."

A plain reading of that, and looking at where it is been used before in case law, tells me exactly what it says; namely, that you do not have to give reasons.

Ms. Joncas, is it not the law in Canada that a judge must give reasons if they send you to jail for any period of time? Is it not law to do so for any decision that a judge makes? Am I wrong about that? Surely that is a given.

What would you say about this clause here that says that the judge does not have to give reasons, and, if the judge does not give reasons, the sentence still stands. What do you think of that?

Ms. Joncas: I think the Court of Appeal will have a field day with that one. I am so glad you asked. The judge must give reasons, and judges do give reasons.

They usually give reasons and an explanation about how they computerized that time and what the whole sentence is and how much they give, whether one-for-one or one-for-five, et cetera. They always give reasons, or else you can take it to the Court of Appeal. Basically, that is another reason there might be a problem with this bill.

Senator Baker: In your considered opinion, looking at it on its face, it is unlawful, according to Canadian law today, to say that a judge does not have to give reasons.

Ms. Joncas: I believe that the Court of Appeal might think this is unconstitutional.

Senator Wallace: Ms. Pate, I direct this comment to you. I was not intending to raise this, but it follows from the question that was put forward by Senator Baker, and it concerns the issue of whether the accused in pre-sentence remand would purposefully build up the two-for-one credits in order to minimize the length of time they would spend in jail after sentencing. My understanding is that the Department of Justice, as Senator Baker has pointed out, has received very strong encouragement and evidence from the provincial and territorial ministers of justice that, in fact, that does happen.

You undoubtedly would not have seen this, but we had an appearance last week from the Canadian Association of Crown Counsel. Mr. Jamie Chaffe appeared on behalf of the association. A letter was received by the committee back on September 24. I will just read a short piece of it to you. He says:

In the testimony of the CLA and the CBA, the very existence of an accused person building credit for sentencing under our current sentencing provisions . . . was vigorously denied.

Mr. Chaffe goes on to say:

With great respect, the CACC cannot agree with such submissions. This concept and conduct is not mythical, nor is it rare in the experience of crown attorneys across Canada.

I would think that is pretty strong evidence coming from the Canadian Association of Crown Counsel. Is that not something the minister should take seriously in considering whether Bill C-25 is appropriate and would solve perhaps something that many would feel is an inequitable result of the current law in sentencing?

Ms. Pate: If that is the sole basis for the evidence, if it is that evidence, then I would say, no. I think that you should have before you evidence that shows people had an opportunity to plead guilty, had all of the disclosure ahead of time, their counsel had all of that information, and they were prepared to proceed, then someone said, "No, I want to stay here in jail for a few more months to build up three months so that I can build up six months credit." I do not know of any cases such as that. I do know of a few cases where someone has said that they could proceed today, and if people have an opportunity to have an alternative sentence to prison, then certainly there is no incentive.

If they are looking at prison anyway, in fact, the opposite is true; and we have a concern right now. We have intervened in several cases where women were about to plead guilty and ask for federal time just to get out of remand centres, against the advice of their counsel, often with the Crown not agreeing. The judge questions it, and they still request it on the belief that they will be going into a program or a jail sentence where they will have more programs and more access to treatment. We have had judges comment. When we have met with judges, we have encouraged them to push below, to scrape below that veneer and ask the questions of why someone does that. If in fact it is to avoid provincial custody, we actually urge and on only a couple of occasions have succeeded in encouraging a suggestion of an alternative sentence of community, whether it is house arrest or conditional sentence, that sort of thing.

I would be very interested in seeing that evidence and what that evidentiary basis is, beyond an opinion.

Senator Wallace: For those of us on this committee and hearing this evidence, many different opinions are brought forward, and the challenge for us is to sort through this and determine what it all really means. I thank you for that. From the evidence we have heard — and I think we will hear more tomorrow — opinions differ on that.

I will make an observation, and I would appreciate your comment. In thinking all of this through and thinking about what impact the present pre-sentence credits could have, the outcome of it would seem to be that when the credits are applied, it would reduce the time that an individual who was found guilty would spend in post-sentence custody; less time would be spent. When I think of the individuals to whom pre-sentence credits would apply, it is those who are denied bail, for all the various reasons that they could be denied bail. That is why they were in pre-sentence remand.

Rehabilitation services, I understand, are much better and much improved in post-sentencing facilities as opposed to remand. Does that not mean that many who are incarcerated, by exercising the two-for-one credit and getting the benefit of that, will then not have that extended period of rehabilitation that they would have had had that not applied? Does that not work against their best interest and the interests of protecting society? We would all agree the idea is not to lock people up and throw away the key but to rehabilitate them, get them back into society where they do not pose a risk and become productive. Does the current system not effectively reduce that period of effective rehabilitation and work against both society and the interests of the person incarcerated?

Ms. Pate: I know Ms. Joncas wants to add something, but I would first look at why people are spending such time in pretrial detention and the questions I suggested earlier. Rather than repeat them, I would suggest you ask those questions. It is not simply because a person is dangerous to the community that they are kept in pretrial detention. If you look at the numbers, poor people, people with mental health issues and people who have been reliant on state support are more likely to be in pretrial custody because of the fear that they will not be found. They will not have a place to be.

Senator Wallace: They would not show up.

Ms. Pate: That is the argument used because that is the only legal manner to do it. If you look at those jurisdictions that have had those alternatives, you will see different results in terms of pretrial custody. You have to examine that first. For those who end up in custody, all of the research shows that the most beneficial programming occurs in the community under supervision.

I have heard the argument that you have raised. Quite frankly, it is an argument that is designed to draw attention away from improving those conditions as a starting point. Instead of improving the conditions, we say, "Let us give longer sentences so that we can achieve greater rehabilitation." The reality is that that is not what happens. Longer sentences mean more people in custody, less access to the existing programs, resources spread ever more thinly across those services, people being held sometimes until warrant expiry, not getting out with supervision in the community and cuts to those very programs in the community. That is why I was asking how many of those resources are available to assist people to integrate into the community.

All of the research shows that that is where the most beneficial impact is, both pretrial and post-sentencing. I encourage you to ask those questions of the provinces, and ask why so much focus is on the most expensive and least effective part of corrections and least effective part of the system, that being both pretrial and post-sentence custody.

Senator Wallace: I would comment on that, but perhaps in a second round.

Ms. Joncas: I wanted to comment on the people wanting to stay in preventative custody. One part of the population that does not want to stay in preventative custody is immigrants who do not have full status. Preventative custody will be double jeopardy for them because it will count as double. Even though they might get a one-year sentence, if they were in preventative custody for seven months, it will count as double, and they will be deported without an appeal, so they have a great interest in getting out. Immigration law says that if you get a sentence of two years or more, you are out of here. Obviously, they have a great interest in trying to get matters settled as quickly as possible because preventative time will get them deported very quickly.

Senator Wallace: We are talking about a very small number of those who are incarcerated.

The Chair: Can you just clarify something? Do you mean preventative or pre-sentence custody?

Ms. Joncas: Preventative custody. They are not convicted, but it counts as double anyway for immigration purposes.

Senator Joyal: My first question is in relation to your representation to the provincial attorneys. Did you have an opportunity to have your views expressed to them before they concluded there was a need to change the system?

Ms. Pate: They did not consult our organization.

Mr. Jones: To the best of my knowledge, we have not been consulted, although it is quite possible that our Alberta branch, which had a good relationship with the government, was. In fact, they have produced some evidence speaking directly to this issue of pre-sentence detention.

They can find no evidence that people are running up their time in pre-sentence custody. In fact, the evidence from the Alberta case is that in large measure, people held in pre-sentence detention say, "Get me out of here by any means possible."

Senator Joyal: My understanding of the recommendation of the federal-provincial attorneys' conference is not as strict as it has been put around this table. I refer to the question by Senator Nolin. We cannot conclude generally that all the provincial attorneys have requested the one-for-one ratio: one day in detention and one day on credit in sentencing.

My understanding of the recommendation of the federal-provincial-territorial meetings is that a large number of the provincial attorneys wanted to have one-for-1.5. Some wanted one-for-one, but that was not the unanimous finding that was presented to us. I wanted to make that qualification because it sheds a different light on the understanding of this bill.

What seems to me to be a prevailing recommendation of one-for-1.5finds itself as an exception in the bill, which establishes the one-for-one as a basic rule. In my opinion, that would run counter to decisions of the Court of Appeal of Quebec in the Wust decision.

Ms. Joncas, I have the Court of Appeal decision that you referred to in your remarks. Can you read paragraph 45 of the decision? I have the English version. Maybe you have the French version.


Ms. Joncas: Yes, with pleasure.

In establishing the 2 to 1 ratio, then, the courts have done nothing more than establish a practice that takes into consideration the harsh conditions so that the accused's punishment is not greater merely because sentencing did not take place at the beginning of proceedings.


Senator Joyal: Could you explain to us in lay language what it means? It seems to me that a fundamental principle of justice is in there.


Ms. Joncas: I feel that there are two main factors that the Court of Appeal considered. In preventive custody, it is difficult or impossible to begin the process of rehabilitation. Since the individual has not been convicted, no rehabilitation process can begin. Then, of course, just as we have said, there are the dubious conditions of detention we describe. I also go back to what I said before, in paragraph 42, the "two for one" ratio cannot be considered an advantage for the accused. The court's position could not be clearer. I am still referring to R. v. Beauchamp in the Court of Appeal of Quebec. Having argued that case, I know that leave to appeal was denied by the Supreme Court, thereby upholding the principle. The Crown asked for leave to appeal and permission was denied.

Senator Joyal: If I read paragraph 45, which seems to be at the heart of the principle at issue in Bill C-25, when the court says:


. . . a practice that takes into consideration the harsh conditions so that the accused's punishment is not greater merely because sentencing did not take place at the beginning of proceedings.

It means that a person who was sentenced on a one-for-one basis has a greater sentence than a person who has not been in the remand system.

Ms. Joncas: Obviously because those people are not admissible to get out, and they are not evaluated to see what other measures could take place and when they could get out. If they do one sixth of the sentence or one third or two thirds, they are admissible for release or go into transition, which they are not when they are in remand.

Senator Joyal: Is it not true that the principle of one-for-1.5 maintains the balance of the sentence at the level of the judgment versus at the pretrial level? If a person finds themselves in a one-for-one detention situation, once he or she is sentenced and the time is not adjusted, that person is in a more dire condition than the person who has not been in a remand situation.

That person would immediately challenge the decision on the basis of the fundamental principle of justice. You cannot have a different sentence for the same crime based on similar conditions and similar proof. That seems so fundamental that it is why the court has devised that practice of one-for-one. Paragraph 40 of the decision, the way I read it, establishes the fundamental reasons why you have to maintain a different appreciation of the condition of pre-detention versus the sentencing conditions.

The provincial attorneys who recommended one-for-1.5 were, in my opinion, maintaining the principle of balance in the sentencing conditions that are fundamental to the object of this bill. I am not convinced that we should be changing the system the way the bill changes it. We could change it; we could put 1.5 versus two, we could limit it at two. We could establish the rule as one-for-1.5 and limit it at two. However, to change the system by negating the condition into which remand takes place versus the condition into which sentencing takes place is an affront to the principles of fundamental justice. I might be wrong, but I am sure some lawyers will raise the unconstitutionality of this bill very soon.

Ms. Joncas: We believe that judicial discretion should be maintained. In cases where detention conditions and the principles of the Supreme Court of Canada are joint, then the judge can decide. The judge could decide one-for-one; I have examples where in the Superior Court, which was maintained by the Supreme Court, Justice Martin only allowed one-for-one for his specific reasons. Therefore, we believe that the judges should evaluate on a case-by-case basis. As we say in French:


Individualization of sentencing should remain the general principle. We have to look at the circumstances of each person and each offence. Individualization of sentencing is the law in Canada, and it must be maintained.

Senator Carignan: My first question is about the "two for one" issue, whether it is an advantage or not.

I understand that, in some situations, it can be an advantage and, in others, it is not. We saw that a few weeks ago when a person refused a bail hearing and preferred to remain behind bars because that person was afraid of being threatened by the victims. That was reported in the media. You can see how there can be an advantage to staying behind bars.

You answered my question in part. So let me move to my second question that deals with principles of fundamental justice. Senator Joyal told you his opinion that this is a principle of fundamental justice. Principles of fundamental justice are different when a person has been convicted. Deciding the constitutionality of a sentence would be based on the section dealing with mental cruelty, with cruel punishments, and not on principles of fundamental justice. Am I wrong?

Ms. Joncas: I am sorry. I want to be sure that I understood your question correctly.

Senator Carignan: The fact that a court of appeal has deemed the practice of "two for one" to be valid does not thereby make it a principle of fundamental justice in sentencing as guaranteed by the Constitution.

Ms. Joncas: The principles recognized by the Charter, I feel, require fair sentences and not, as you mentioned, cruel and unusual punishment. But there are principles in the Criminal Code dealing with individualization in sentencing. Penalties have to be fair and proportionate to the degree of responsibility of the offender, that is, considering his role and any aggravating or mitigating circumstances. Everyone has the right to fair penalties.

Senator Carignan: That is why we are amending the Criminal Code, to change that guideline.

Ms. Joncas: If that happens, it will be very troubling.

Senator Carignan: One of the arguments is that the wait to go to trial will be longer. It could lengthen the time between the charge and the trial. Does the accused have any recourse when an unreasonable delay is prejudicial to him? Do you not think that this new "one for one" standard will be taken into account by a judge deciding whether a delay in going to trial is unreasonable?

Ms. Joncas: Certainly, we have the right to a trial within a reasonable time; this kind of legislative change may well affect that time. Is society going to be better served if people can have their proceedings suspended and be released? I do not think that was the intent, but it may well be one of the rather troubling consequences of a bill of this kind: Charter challenges and requests for stays of proceedings because courts will be unable to keep up with the demand.

Senator Carignan: Do I understand that, on occasion, in longer trials, where that rule caused significant prejudice to the accused, it would be a factor in an application for a stay of proceedings?

Ms. Joncas: I would hate to see the wait for trial to get any longer. In recent years, we have seen a number of changes to the legislation that were not justified by any rise in the crime rate — everyone agrees that it is dropping — but that ended up having a domino effect on our system because there is no overall vision for amending the Criminal Code. We see that as deplorable. Things are being done piecemeal, with no consideration of the larger impact of the small changes. Reversal of the burden of proof, as I mentioned before, minimum sentences. I think that it is time to sit down, to stop trying to curry favour and to look at the real needs. I see no pressing need for this bill and I saw none for reversing the burden of proof. We have a justice system that works very well. We have competent judges and I have confidence in our justice system.


The government should not undermine our justice system as it is doing by making all these unnecessary changes. Not only are they unnecessary, they will have a reverse effect on how the system runs.

Senator Watt: Mr. Jones, I believed you raised the issue of the far North and people from the Arctic. I also understand that the Canadian Association of Elizabeth Fry Societies has conducted a study on women, and the numbers are alarming.

According to the report, only 3 per cent of the women in Canada are Aboriginal, but 32 per cent of women in federal penitentiaries are Aboriginal. That is not taking into account all of the men.

What are we talking about? Have you done a study on what the actual percentage is if you combine the women and the men?

Ms. Pate: I believe the most recent figure is 18 per cent of the jail population. Mr. Jones may know.

Mr. Jones: Approximately one in five Aboriginal people are incarcerated in the federal system. As you said, that is 3 per cent of the total population.

I want to make a point that we draw many lessons from the United States, where these types of incremental tinkering with the criminal justice system have been widespread and have gone on for a long time. The lesson is that, by and large, these have a disproportionately harsh effect on minority populations. In the United States, it is Blacks and Latinos who are vastly over-represented in what I call the "prison empire" of the United States.

In Canada, Aboriginal people are vastly over-represented. These people are easier to prosecute, easier to catch and easier to incarcerate. Generally speaking, they are less able to advocate for themselves and have multiple problems of literacy and challenges of various types that make them more vulnerable to the criminal justice system.

My last observation is that tinkering with the criminal justice system in this manner without a larger vision of what the criminal justice system is supposed to accomplish is an assault on minority communities. In this instance, it is Aboriginal peoples.

Senator Watt: In a sense, we are not serving the Aboriginal communities at all?

Mr. Jones: Correct.

Ms. Pate: I encourage you to ask for information from the Correctional Service of Canada about their projections. By the year 2017, very alarming increases will take place in the numbers of indigenous peoples in institutions, particularly women but also men, young people and those with mental health issues who are indigenous. Those are very alarming increases that are happening. Certainly, we see it for women.

Senator Watt: Therefore, you are saying that the larger picture must be identified in terms of looking into the possible solutions to the problems we have.

Ms. Pate: Also, ask the provinces what the indigenous population is in the remand centres because we know they are vastly over-represented there, as well.

Mr. Jones: Ask them for actual evidence on these remand populations running up time there. We have heard anecdotal reports but no one has come forward with any evidence. I do not know why I expect someone to bring evidence forward for a change of that consequence. It seems like a reasonable request.

Ms. Pate: In fact, even those who have done research on sentencing of Aboriginal people have shown they are often charged high, they often plead to those and they are less likely to engage in the plea bargaining process. Often their sentences look as though they are shorter for more serious crimes. However, if you actually do the research and look for what they are convicted on and what their actual behaviour was, oftentimes someone who was represented by counsel and had the benefit of having someone such as Ms. Joncas as his or her lawyer would not be in that situation. We know a practice exists of bringing more charges with the assumption that there will be plea bargaining and, therefore, different sentences. Therefore, the picture is even more complex than we have been able to present today.

The Chair: Colleagues, I am sorry we have run out of time. I said at the beginning that these witnesses are always interesting and stimulating. It was as true today as ever. We thank you for the time you have given us and your assistance as we work our way through this bill.

Senators, we are delighted to have with us now, from the Office of the Correctional Investigator, Howard Sapers, Correctional Investigator; and Ivan Zinger, Executive Director and General Counsel. Welcome. You have appeared before us previously, and we are glad to have you back. Mr. Sapers, the floor is yours.

Howard Sapers, Correctional Investigator, Office of the Correctional Investigator: Thank you. I appreciate the invitation to appear again before this committee. We previously had a chance to provide our views on the impact of Bill C-25, the truth in sentencing act, to the parliamentary committee. Our concerns were voiced during that appearance on May 25, 2009. I will try not to repeat myself too much, but I will say that, along with other observers, we believe that Bill C-25 will likely lead to a significant increase in the offender population managed by the Correctional Service of Canada, CSC. My office is concerned with the impact that a rapid influx of new admissions to federal custody will have on an already burdened system. A significant increase in the federal inmate population will affect the safety and security of that population, as well as individual inmates' ability to receive programs and services that will assist their timely and safe reintegration into their home communities.

I would like to address the likely impact of prison overcrowding on staff and offender safety, and then I will highlight my office's concern about the delivery of mental health services to federal offenders. I will then ask my executive director and general counsel, Dr. Zinger, to speak about access to correctional programs and the likely impact that Bill C-25 will have on Aboriginal corrections.

It is well documented that prison crowding can lead to increased levels of tension and violence and can jeopardize the safety of staff, inmates and visitors. As I indicated in my last annual report, the current level of tension and violence within Canada's penitentiaries is already excessive. For example, for the first quarter of this fiscal year, the most recent data available, CSC reported a staggering total of 2,231 security incidents and 577 reported physical injuries to inmates. During this three-month period, the security incidents included assaults on inmates, disciplinary issues, inmate fights, medical emergencies, self-inflicted injuries and three deaths. CSC has acknowledged the problem and is taking some steps to attempt to reduce the number of incidents by improving, for example, the dynamic security, which promotes the engagement of correctional staff with inmates, to both defuse tensions and to allow staff to gather intelligence and to prevent incidents from occurring or escalating into major events such as riots.

The plight of offenders with mental disorders in prison has become a major focus and priority of my office. This is of importance to the study of Bill C-25 because offenders with mental illness and cognitive difficulties are often held in pretrial custody. We know that the prevalence of offenders with significant mental health issues upon admission has doubled in the past five years. Federal prisons are now housing the largest psychiatric population in the country; yet, despite the need, the capacity of the federal correctional system to respond to and treat mental illness is largely reserved for the most acute or seriously chronic cases — those receiving psychiatric treatment in one of the five regional treatment centres. Most other mental health problems receive limited clinical attention, at best.

Although offenders with acute needs or those requiring specialized intervention may be sent to a regional treatment centre, they are typically returned to the referring institution after only a short period of stabilization. Overwhelmed by volume, the regional treatment centres have become revolving doors of referrals, admissions and discharges. Almost no intermediate mental health services are currently available to bridge the transition between the therapeutic and clinical interventions offered at the treatment centres and the return of those offenders to their regular institutions.

An overall lack of accessible mental health services means offenders with an identified need for these services remain in settings ill-prepared to respond to their symptoms and behaviours. In far too many cases, their mental health problems deteriorate to the point where they result in violations of institutional rules, altercations with staff and other offenders and often self-harm. In too many instances, these offenders are placed in segregation for their personal safety or transferred to higher security institutions, including the Special Handling Unit in Quebec, CSC's most secure and restrictive institution.

I will now ask Dr. Zinger to offer some comments on programs.


Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: The Correctional Service of Canada is mandated by law to provide programs and interventions that address factors related to an offender's risk of re-offending. Programs address a number of important issues that, when dealt with, can significantly reduce the risk of re-offending.

The Correctional Service offers numerous very good programs, including in the areas of sex offenders, anger management, family violence and substance abuse.

The current problem with programming is access. The Correctional Service allocates only two per cent, under $41 million of a $2.1 billion total annual budget, to offender programming.

For now, offenders have to contend with long waiting lists for programs and with cancelled programs because of insufficient funding or lack of trained facilitators.

They also have to deal with delayed conditional release because of the service's inability to provide the timely programs they require.

They must therefore serve longer time before parole consideration.

The situation is becoming critical as more and more offenders are released later in their sentences, too often having not received the necessary programs and treatment to increase their chance of success in the community.

The Correctional Service has acknowledged publicly that spending two per cent of its annual budget on programming is insufficient.

It has indicated that it hopes in the next fiscal year to reallocate a significant portion of the $48.1 million it anticipates receiving as part of its strategic review initiative to core programming.

The Office of the Correctional Investigator also voiced its concern with the Committee on Justice and Human Rights about the differential impacts that the proposal for pre-sentence custody will have on Aboriginal people.

As data from 2001 to 2007 indicate, the number of Aboriginal adults admitted to remand custody increased by 23 per cent compared to a 14 per cent increase in the total remand admission rate over the same period. Research suggests that Aboriginal people in pre-sentence custody are more likely to be denied bail, more likely to be held in higher security conditions and to serve longer periods of time in remand custody.

Because of their disadvantaged position, the same disparities in Aboriginal pre-trial detention are patterns repeated at the federal level where Aboriginal offenders now account for 20 per cent of the inmate population.


Mr. Sapers: In conclusion, any significant influx of new admissions without additional resources for accommodation, programs, health care services, improved sanitation, hygiene and control for communicable and infectious diseases, as well as a reasonable time to put into place these initiatives, will exacerbate an already difficult situation. This bill will have a differential impact on Aboriginal people, and this impact should be examined carefully and mitigated.

Thank you again for the opportunity to share these thoughts with your committee. We look forward to your questions.

The Chair: Thank you, Mr. Sapers. We will, of course, have questions.

Senator Watt: Thank you for your presentation. It was shocking. I understand that your organization's role is to ensure that the Correctional Service of Canada carries out its statutory mandate in compliance with domestic and international policies for legal and human rights obligations.

How well are we serving our community?

I know you have indicated that very high numbers of Aboriginal people are in the penitentiary. I would also like to get some reasons why it seems to be getting higher than it was originally.

Mr. Sapers: Senator, thank you for that question. It is a broad question with very serious implications. I will try to give a concise answer. Every year we report to Parliament; our reports, year after year, often raise the same compliance issues. These are issues that have to do with compliance with the legal and policy framework in which the Correctional Service of Canada operates, or at least is supposed to operate.

I do raise those issues. Significant challenges exist in ensuring that the Correctional Service of Canada lives up to its own dual mandate of security and reintegration into the community.

One of the most vexing areas of inquiry for my office has to do with the differential outcome for Aboriginal offenders versus non-Aboriginal offenders. If we think of the individuals who are remanded in pretrial custody at the beginning of their interaction with the criminal justice system, it is often these same individuals who bring whatever disadvantage they had that resulted in them being remanded in the first place with them into the custodial setting. This has resulted in huge gaps in correctional outcomes.

These are the offenders who spend longer portions of their sentence in custody before conditional release. They spend longer time periods in higher security levels; they are the offenders who are most often segregated, held in the most severe form of incarceration. They are the offenders who, if they are conditionally released, are most often breached for technical violations of the conditions of their release, the ones most often returned to institutions, and ultimately the ones who are not released until either their statutory release date or the warrant expiry date, which by definition pretty much guarantees that they are the ones who have made the least progress against their correctional plan. They have received the least benefit of the programs and treatment interventions that are available.

Those are the circumstances in which we find ourselves when we look at what the potential impact may be of an increase in the number of those offenders with those disadvantages coming into the federal penitentiaries.

Senator Watt: On the program side?

Mr. Zinger: Just to complete Mr. Sapers' answer, about three years ago, we asked Statistics Canada to provide us with the incarceration rate for Aboriginal people versus non-Aboriginal people, and we reported those numbers in our annual report. Most striking is that year after year, the incarceration rate for Aboriginal people is steadily increasing. It now is nine times higher for Aboriginal people than for non-Aboriginal people. As the Canadian Human Rights Commission said many years ago, and this continues to be true, this is the number one human rights issue facing Canada.

I would say, given this reality, that any bill that is passed or presented and examined by the house or the Senate has to truly examine the potential implication on Aboriginal people. A great deal of thoughtful work needs to be done to ensure that any bill mitigates any negative impact on Aboriginal people.

With respect to programs, we see in penitentiaries that CSC does have some very good programming for Aboriginal people. Unfortunately, many of those programs are delivered at minimum security institutions, and many Aboriginal people find themselves, upon admission, to be incarcerated at maximum security institutions. In those institutions, programs are very limited, in general, and in particular for programs that are tailored to meet the needs of Aboriginal people. Those programs, by the way, are required by law. A provision within the Corrections and Conditional Release Act specifically says that the Correctional Service of Canada must have programs that are tailored to meet the needs of Aboriginal people.

Senator Watt: Madam Chair, may I have one more question?

The Chair: You may have a very brief one, Senator Watt.

Senator Watt: One thing that is quite visible in Inuit communities is repeat offenders. This is my own assessment of it from what I see in my own community. People who were taken away from the communities were incarcerated. They come back from time to time, but not for very long. They go right back out again, so there is no way of reducing the numbers.

I can actually compare with you the fact that you said that the numbers are increasing. That is also very noticeable in our small communities because we see no improvement. Many of us ask ourselves whether it is because they are not being rehabilitated.

What is wrong with the system that we have constant repeat offenders year after year?

Mr. Sapers: Senator, I do not have a very complete or satisfactory answer for you. However, I suspect that part of the answer can be found in my earlier reference to the differential outcomes. What I mean, more precisely, is that, if you are an offender who is held in segregation in maximum security with limited movement, limited exposure to the community and limited opportunities for programs, you are less likely to have access to treatment and intervention. Therefore, even if CSC has developed a very good program to deal with your particular needs — whatever they may be — chances are you will not get access to that program.

You are held in custody until either your statutory release date or your warrant expiry date. That means you are then released into the community, not only without the benefit of correctional intervention, but also with very little or no community support and supervision.

Senator Watt: That is correct.

Mr. Sapers: The outcome is the recidivism that you are talking about.

Senator Wallace: As we have heard all the witnesses, I think for all of us on this committee it seems so difficult to balance the different concerns we hear. Concerns have been expressed for the accused or those who are charged, and that is understandable, and the need for services to rehabilitate.

On the other side of it is the need to provide our society and people with the best possible protection. I think it is fair to say that the Department of Justice Canada proponents of Bill C-25 do feel — though I suspect there is not total agreement on it — that Bill C-25 would provide further protections and securities to the public, that it would provide more transparency in sentencing, sentencing would be far more understandable, and, generally, the rule of law would be more clearly and effectively represented if Bill C-25 were implemented. I know you are not here to comment on that part of it, but there are those that believe that.

However, when I listen to your presentation, you are telling us what you see the impacts of Bill C-25 to be. It seems to come down, essentially, to an issue of resources: If there is an increased population in federal institutions, then the already strained resources you have will be even more strained, and you tell us what you anticipate to be the increased practical difficulties.

Does that mean, in establishing the basic rule of law — the principles of justice that apply to each and all of us and to our society — that we should deviate from those principles, that we should subvert them for monetary reasons? In other words, if the resources are not there, as a society, we should not stick to our principles. We will have to pull back from them.

I personally do not think that we should. If we concluded that Bill C-25 does enhance the rule of law and the administration of justice in the country, we should proceed with it.

How do we deal with the issues that you raise? It is pretty obvious; more funding and more resources are needed. My understanding is that the Minister of Justice did provide an additional $14 million for the Correctional Service of Canada in the 2009 budget, and, over the next three years, that will increase to $48 million.

I do not know if that is enough. However, it seems that the government is taking an integrated approach to that and recognizing exactly the issues to which you speak. I am sure, as time goes on, more resources will be needed.

Do you believe that we should not compromise on these principles of justice, the rule of law, simply for economic reasons?

Mr. Sapers: Thank you very much for bringing the discussion about principles to the table. First of all, I do not think this is primarily a discussion about resources. CSC is a fairly large department of the federal government with a $2-billion-plus budget, 16,000 staff and 58 facilities across the country. That said, I believe they could use more resources.

However, this is much more about principle and about what we consider to be the purposes of a correctional system. That balance is really a matter of public policy, and that is not my purview; that is yours and the elected members.

Canada has a long history of grappling with that discussion about what the appropriate purposes of criminal law are and of what correctional practice should be. An attempt was made to codify all that in the Corrections and Conditional Release Act, and to draft that law in compliance with domestic and international human rights matters and obligations, as well as the Canadian Charter of Rights and Freedoms.

Any discussion about principles, typically, would be one about balancing what are often seen as the competing purposes of criminal justice.

The only authority for correctional intervention is legal authority, and any erosion in that authority — any erosion in the law — becomes erosion in that authority and, I would say, makes the correctional intervention less and less legitimate.

Therefore, your question about Bill C-25, and whether we should abandon principle, I would say, no, of course not. However, we should get back in touch with what the touchstones of those principles of criminal law and practice are, and then see whether the aims of Bill C-25 are consistent.

Senator Wallace: Would you agree that transparency in any provision in the Criminal Code is critical and should be understandable? We have a responsibility to the general public to allow them to understand the general basis of sentencing. I would suggest to you that, currently, and in particular in relation to the two-for-one credit issue, there is anything but transparency; and it is not understandable. As I see it, it does not seem to be tied to anything specific. It has become a norm to grant two-for-one without reasons. To that extent, my personal feeling is that Bill C-25 does increase that transparency.

The Chair: Do you care to comment, Mr. Sapers?

Mr. Sapers: I care to, yes. I know my general counsel is suggesting that perhaps I should not. I will move over so that he will stop kicking me now.

Senator, sentence calculation is frustratingly complex; we have experts on sentence calculation. One can look at that complexity in two ways: One is to try to deconstruct it and make things more understandable, and the other is to recognize that it is, in fact, a complicated business and that there is no sense in using bumper stickers to explain complex issues.

In fact, it is very technical. I suspect that it probably should be because we are talking about an individual's liberty. We want it to be precise. If we start using the law to interfere with someone's liberty, then I would come down on the side of it being as complicated as it needs to be, and then the obligation falls on the system to make it as understandable as possible. However, that does not undercut the fact that, at its heart or its root, it is a complex issue.

Senator Wallace: It requires clarity and precision, and Bill C-25 should be measured against that, I would think.

The Chair: We are into overtime. These are good points, and I would like to know what Mr. Sapers has to say in response, but then we will move on.

Senator Wallace: I am done.

Senator Nolin: Was your last gesture to say yes or no to what my colleague had to say?

The Chair: He mentioned clarity and precision.

Mr. Sapers: I believe very much in clarity and precision. I will leave it at that.

Senator Nolin: I thought I saw a gesture or an affirmative sign.

Senator Joyal: I would refrain from arguing at this stage and will come back to your presentation.

On page 2 of your presentation, the last sentence of the second paragraph, you say:

A significant increase in the federal inmate population will affect the safety and security of that population as well as individual inmates' ability to receive programs and services that will assist their safe and timely reintegration into the community.

Did you make an estimate, if Bill C-25 is adopted as it is, of the impact it would have on the number of inmates that will find their way into the federal correctional service?

Mr. Sapers: We reviewed some estimates that projected an increase based on various scenarios. I do not want to avoid answering you, but I think that question is best asked to the Commissioner of Corrections. It was really based on information that we received from them that we reached that conclusion.

Senator Joyal: We were told by other witnesses, by Statistics Canada and so on, about a projected increase of 10 to 12 per cent of inmate population. In your opinion, is that a significant increase?

Mr. Sapers: Yes, and particularly if you look at where that 10 to 12 per cent is likely to be distributed. Look at the bottlenecks that we have right now in the federal system. We have crowding and overcrowding conditions at medium security level, where most of the programs are available. Additionally, we see delays and postponements and waivers in growing numbers for conditional release to the extent that now most releases from penitentiaries happen as a result of statutory release instead of conditional release decision making. Because of where the bottlenecks are and where the populations are, a 10 per cent or 12 per cent increase in the population is very troubling, and we think it will only make those problem areas worse.

Senator Joyal: You describe in your presentation, as did Mr. Zinger, the impact of this bill for the inmate population, but you have not measured or evaluated the impact on those inmates who would be released after serving their full sentence because they could not benefit from reintegration programs and could not apply for parole, and so on. As you know, all of that is a chain, and every link in the chain has an impact on the end of the chain. More people will be serving longer terms in prison, and more people will not have benefited from reintegration programs and rehabilitation programs. They will have served their whole sentence. However, when they leave the prison door, they are not better citizens. They are, in fact, a worse risk.

Mr. Sapers: Yes.

Senator Joyal: In fact, if we adopt this bill as it is, without the proper resources, we are taking a risk of decreasing public safety instead of increasing it, as the minister said.

Mr. Sapers: Senator, that is at the core of our presentation to you and your colleagues on the committee this afternoon. The system is already facing significant challenges with the status quo. This increase will make those challenges all the more difficult to deal with. We are concerned because we are increasingly seeing violence inside institutions and a lack of access to programs. That is a very dangerous combination.

Senator Joyal: No direct relationship exists between having people serve longer terms in prisons and safer streets, which the government would like to achieve as an objective. They want to make the streets of Canada safer. We regularly hear that as a motto. This would increase the population of inmates without giving them access to the proper rehabilitation and counselling and assistance they need so that when they leave the door, they can reintegrate into the normal life of citizens fully abiding by the law. In other words, the level of recidivism would be greater and streets less safe by increasing the population without the proper system of rehabilitation within the present system. Is that right or wrong?

Mr. Zinger: With respect to programming, the evidence is overwhelming that good programs can significantly reduce recidivism rates. We receive hundreds of complaints in our office from offenders who would like to take on some programs. However, there is a waiting list and they just cannot. They cannot, if you want, progress on what is referred to as a correctional plan so that they can, on a timelier and safer basis, reintegrate into society.

On the other comments you made with respect to serving longer sentences and whether that has an impact on public safety, I will refer you to what is called a meta-analysis, which is a study that collects sometimes dozens and sometimes hundreds of other studies and quantifies them. A very influential meta-analysis was conducted by Paul Gendreau of New Brunswick University. Based on all these studies, he determined that if we increase the punishment or the length of the sentence, we actually have an impact on recidivism that increases recidivism rates by a factor of 3 per cent.

It may be counterintuitive to many people; let us give them a slightly longer sentence and that will have a positive impact on public safety. That is not correct. The research is categorical on this one. I am more than happy to refer that citation of that very good piece of work by Paul Gendreau, who is internationally recognized for his work in corrections.

The Chair: If you could give that reference to the clerk, we would appreciate that.

Mr. Zinger: I will.

Senator Joyal: Thank you for that additional information. It seems that we need a holistic approach when we change the conditions with the objective that we will increase security and increase trust in the system. It is more or less the squirrel enclosed in a cylinder. We want to have safer streets, so we put more people in prison. We ask them to serve more time, and when they come out, they are supposed to reintegrate into everything — they have been forgiven, and they will be ready to be good and productive citizens.

Especially when part of this legislation will have an impact on Aboriginal people; we know that, by definition, Aboriginal people have less chance of reintegrating into a productive way of life than other Canadians. We are exacerbating a problem that is already acute, in my opinion, to a point where the objective that we have about making streets safer will be totally undermined by an approach that does not take into account the situation we are dealing with here.

As you said, it is simple to say that all the guilty will be in prisons and will be serving their time in harsh conditions, and when they come out, they know they will have to behave — that is a simplistic understanding of what human behaviour is in prisons and how people get out of prisons.

In addressing this bill, which seems to be easy to understand and sell — one-for-one and 1.5 with reasons — in fact, if you try to understand the impact of this bill on the system, listening to you, there are no guarantees it will work. On the contrary, based on what you said, it will increase insecurity in prisons for other inmates because there will be more tension in the prisons, the way you have described it. When those inmates are released, they will be a greater risk to the Canadian population.

It is difficult to change the system in a way that is satisfactory; as was said, it is balance. Each element of the equation must be properly balanced so that we do not lose sight of the impact of one change on the rest of the system. That seems to be the conundrum we are in with this bill.

Mr. Sapers: Yes. I think that is the balance that you should be seeking as you consider Bill C-25. It really is not my place to comment broadly on the public policy part of it. However, I agree substantially with your analysis of the impact, that it will have a differential impact on different populations — the mentally ill and Aboriginal peoples. It will lead to more bottlenecks in a system that is already facing too many bottlenecks.

Senator Baker: Does your jurisdiction extend to those on remand?

Mr. Sapers: No.

Senator Baker: Your jurisdiction only extends when someone is convicted of an offence and is being held in a federal institution, is that correct?

Mr. Sapers: That is correct.

Senator Baker: Do any of the matters that you deal with — any of the complaints you receive, any of the systemic problems that you alert the federal government to in the system — relate to matters concerning remand in any way?

Mr. Sapers: Not directly. We do not receive complaints from individuals remanded in pretrial custody, and we have no jurisdiction in provincial matters.

There are times where decisions or acts of staff of the Correctional Service of Canada result in individuals being held temporarily in provincial remand centres. We may get involved in that case, but it would be wrong to leave any impression that our mandate includes dealing with remand populations per se.

Senator Baker: The observation you brought to the committee — and I think you brought to the House of Commons — is your concern about an increase in the prison population for whom you are responsible in your position because of this bill, is that correct? Do you want me to read your words?

Mr. Sapers: No. You are right. Again, that was the focus of our previous testimony, and it has been the focus of our testimony today as well. We believe that, first, Bill C-25 will lead to an increase in federally incarcerated offenders. Second, we think that increase will be disproportionately impacting on a particular set of populations; and we think that will make some existing problems in providing safe custody and rapid reintegration even worse.

The Chair: I have a question for Mr. Zinger. I think I understand the answer, but I am not sure, so I will put the question.

You said that more and more offenders are being released later in their sentences. Why?

Mr. Zinger: A variety of factors come into play, but the availability and access to programming would be probably the number one reason.

The correctional plan, just to take you back, is a plan that is designed and established by CSC during a very elaborate intake admission process, where CSC identifies key areas that need to be worked on in order to reduce the likelihood of recidivism. If you are, for example, required to take a substance abuse program or something about anger management, and you cannot complete those programs on time for your earliest parole eligibility, then you are likely to either waive your parole hearing and try again later once you have completed the program or attend a hearing to be denied because you have not made enough progress and you could still be seen by the National Parole Board as an undue risk. The net effect of not having sufficient and timely programming is that individuals end up being released later in their sentence.

The Chair: Is that what you were referring to when you talked about longer time being served before parole consideration?

Mr. Zinger: Yes.

The Chair: It was not a separate category; it was all the same collection of issues, is that right?

Mr. Zinger: Yes.

The Chair: Thank you.

Senator Joyal: Can you provide us with the Gendreau study to which you referred?

Mr. Zinger: Certainly. I will have it scanned and forwarded to the clerk.

The Chair: Also, as I asked, if you could give the reference to the clerk. It is possible that, in the vast resources of Parliament, it is already available.

Mr. Zinger: I will do so first thing tomorrow morning.

The Chair: Mr. Sapers and Mr. Zinger, thank you both very much. There is food for much thought in what you have told us. We are very grateful to you.

Our next witness, who will really help us understand how the world works, is Don Head, Commissioner of the Correctional Service of Canada. We are glad to have you, Mr. Head.

Don Head, Commissioner, Correctional Service of Canada: Good evening. I am happy to appear before you to respond to any questions you may have about how the Correctional Service of Canada will respond to implementing Bill C-25.

Before we begin, I would like to tell you a bit about my background in the criminal justice system. I have been the commissioner of the Correctional Service of Canada since June 27, 2008. I actually started my career as a correctional officer in 1978. Between 2002 and 2008, I was the senior deputy commissioner within the Correctional Service of Canada.

Outside of the Correctional Service of Canada, I spent time working in the provincial and territorial correctional systems, first in the Yukon as the warden of the territorial jail and as the acting director of the Community and Correctional Services. Then, I was the assistant deputy minister responsible for probation and correctional services for the Department of Corrections and Public Safety in Saskatchewan.

I believe my experience in both the territorial, provincial and federal correctional systems has provided me with a good understanding as to what is required to respond to Bill C-25. As the current co-chair of the Federal-Provincial-Territorial Heads of Corrections, I have also participated in many meetings and conversations on the subject of the growing pressures in the remand facilities across the country.

When looking at the anticipated impact of Bill C-25, specifically on the Correctional Service of Canada, it is important to note that, while additional offenders will now receive a federal sentence to come to CSC, the majority of offenders impacted would be those who normally receive a federal sentence but would now receive a longer sentence, extending their time in the federal correction system.

The increase of offenders admitted to federal penitentiaries as a result of this legislative amendment will require CSC, in the short term, to implement temporary accommodation measures, such as an increase in the use of double bunking and additional temporary structures to house offenders. In the long term, CSC aims to construct more permanent accommodation, including the construction of new units or institutions to manage this anticipated population growth.

It should also be noted that CSC will need to expand its capacity to deliver education, correctional programs, interventions, employment skills, development training and community supervision in order to ensure we deliver the targeted public safety results that Canadians expect. Although this bill will introduce new challenges, CSC will continue to fulfill its mandate to manage the sentence of federal offenders and to ensure that we deliver the public safety results that Canadians expect every day.

I tried to keep my comments brief so I could give more time to answer any questions you may have.

The Chair: You certainly did. As a former editor, I admire people who can be brief. It is a skill that not everyone has. I speak for myself, among others.

Senator Baker: I suppose, Mr. Head, you are used to this because, now that you are the commissioner, do you still make the third-level grievance decisions that you used to make?

Mr. Head: I delegate that to the person who took over my responsibilities, the senior deputy commissioner. If any conflict arises between previous decisions that he had rendered and decisions he may be rendering, I personally take care of those grievances.

Senator Baker: I am wondering how many applications there will be for judicial review of those decisions in the future. You had quite a few, yourself.

Mr. Head: There were a few.

Senator Baker: Those were Federal Court decisions.

Mr. Head: Yes.

Senator Baker: Mr. Head, I have two basic questions. I do not know if you wish to comment on those questions. Will the increase in the numbers of persons occupying prisons in Canada lead to some challenges through the legal aid avenues that prisoners have open to them? You mentioned it will cause overcrowding; "double bunking," you called it.

Mr. Head: I cannot really speculate on that. I imagine that, as with most changes to the law, challenges will occur at some point and that may have an impact on legal aid resources across the country. I have no basis to say one way or another whether it would increase, decrease or stay at the same level.

Senator Baker: Are you speaking about legal assistance that prisoners would require?

Mr. Head: That is right.

Senator Baker: We will be hearing from witnesses who will claim that prisoners who are in remand in Canada, generally, are not today in the same position they were years ago. I do not know whether you wish to comment on that, but I appreciate if you would. They will say, in other words, that someone in remand is in practically the same position and receives the same treatment as someone in the general prison population after conviction. Do you think that is correct?

Mr. Head: Yes. I can comment on that based on my territorial and provincial experience and based on the conversations I have had at the Federal-Provincial-Territorial Heads of Corrections meeting. To just go back briefly — and Statistics Canada can give you the exact numbers — at one point in time, the numbers that we talked about in the provincial system were that about 30 per cent of the provincial population was on remand status and 70 per cent were provincially sentenced offenders. Over the last 10 years, those numbers have reversed to about 70 per cent, 60 per cent in some places and 50 per cent in others, but the numbers that are used most frequently in our discussions now are that about 70 per cent of the provincial population are remand offenders and 30 per cent are sentenced. Those who are on remand status are there for longer periods of time in the provincial system.

The challenge that the provinces and territories have had is what to do with individuals who are sitting on remand status for longer periods of time. In some jurisdictions, they have actually reached the point where they have integrated remand offenders into the sentenced population. When you look at the minimum rules for the treatment of prisoners, conditions are in there that talk about keeping remand and sentenced populations separate and apart, for obvious reasons. Jurisdictions have had to mix them solely for the purpose of using available beds and not getting into triple or quadruple bunking.

In addition, because of the length of time that some of these offenders are spending on remand status, the provinces have looked at making some forms of programs available to them. In some cases, that is education. In some cases, it is actually starting some of the programs that the provinces offer, such as substance abuse or anger management. It depends on the provinces. That is not the same across the country. Some jurisdictions still have dedicated remand units or remand facilities, and they are treated that way.

Over the last few years, some provinces and territories have undertaken construction to try to improve the conditions of the remand facilities. For the most part, remand facilities in Canada were places where people would spend no more than about seven days. They were not necessarily the most aesthetic or pleasing environments. When you have people staying on remand status for months, or in some cases, a couple of years, that environment is not conducive to respecting human rights or even trying to intervene or interact with people.

Some conditions have changed, housing in some cases, not all cases, and in some cases the issue of trying to provide some opportunities for offenders. As I say, in some jurisdictions, they have intermixed remand offenders and sentenced offenders just solely to be able to accommodate the numbers.

Senator Baker: Therefore, some improvement has taken place. However, as you point out, when you are in remand for two or three years, it certainly is a negative factor and should be compensated for in the sentencing provisions. In other words, you are saying that 70 per cent of the prisoners who are in provincial detention centres today have not been convicted yet.

Mr. Head: That is right. It could be 60 per cent, or it could be 50 per cent, but it is the majority of offenders in most of the provincial systems.

Senator Baker: To now be at 70 per cent is an incredible increase. You just said that it used to be 30 per cent, and now it has changed in a huge way. You have long experience in this area. To what do you attribute this remarkable increase? We are sitting here as legislators. We know that we are partly responsible because we have created the reverse onus. Every day, we pass bills that say that people cannot get out on bail unless they show the judge why they should. We are partly responsible, but surely we are not entirely responsible for that huge increase in the numbers.

Mr. Head: At given times, new pushes take place to tackle different crimes committed across the country, whether it is gang related or gun related. The issue of bail programs that are available in the provinces is a challenge. I cannot pinpoint one or two factors. However, a series of factors have led to this change.

You probably have talked or will talk to some judges, but when the judges assess whether to continue to keep someone on remand or not, they always weigh the issues around public safety, accommodations and those types of concerns. Therefore, many factors are at play.

Senator Baker: Mr. Head, in Canadian system, when you are up for bail, the law says that the judge shall release you unless, and then you have the three things. Now, with this bill, a fourth one will further complicate matters. Something substantial has changed. You say that it is not just because we have created a reverse onus in not allowing people out but also because of the increased number of offences that have been brought into the Criminal Code.

Mr. Head: Exactly. That is one of many factors. As I say, the switch in percentages was not overnight. It built up over the years to the point now that the provinces find themselves with the majority of their populations being on remand status.

Senator Baker: When you were in your position making decisions, third level, that is the end of the line for a prisoner. You made that final decision in your previous position. Then, of course, the Federal Court was the judicial review. When you were in that position, did you have to deal with or did you have jurisdiction over people who were on remand?

Mr. Head: No. The only time we would ever have any jurisdiction over someone in remand was a federal offender who may have picked up an additional charge and was remanded, but they were remanded right back into federal custody. The true remand offenders are the responsibility of the provinces and territories.

Senator Wallace: In your presentation, you commented on the anticipated impact of Bill C-25 and the impact it would have on CSC. You say that the majority of offenders impacted would be those that receive a federal sentence but would now receive a longer sentence extending their time in the federal correctional system. I am just wondering if that is really the case. Would they in fact receive a longer sentence, or is it simply that the time that would be credited to the time they would actually serve in relation to the sentence would be reduced? My understanding is that the impact it would have on your services is not that it would reduce the sentence that was imposed by the judge, but rather it would reduce the total time that would have to be served in relation to that sentence. Is that correct?

Mr. Head: Yes. Just to explain briefly my comments and try to make them clearer, when we were looking at the potential impact of the bill, two categories of offenders were looked at, one being those who currently receive federal sentences. We made assumptions around the fact that a significant number of them currently receive two-for-one credit in their sentences as they are currently calculated.

Over the last several years, we have seen a significant number of offenders who receive sentences of between two to three years, when previously the significant number used to be in the range of four to six years. This issue of time for credit served has built up over time, and we have seen more offenders coming in with shorter federal sentences primarily because they were sitting on remand status for a longer period of time. Our assumption behind that statement is that those individuals who are receiving those shorter sentences will actually receive longer sentences because the judges will no longer be giving a two-for-one credit for those. They will be giving one-for-one, which means less time will be deducted off the original sentence they would have given. That will be significant.

In the other category are the offenders who currently receive a provincial sentence based on a two-for-one ratio after all the deductions. With a one-for-one ratio, they will now receive more time, but that will put them over the two-year mark and put them into federal jurisdiction.

Senator Wallace: Right. As you say, if Bill C-25 is enacted, it could be a one-for-one ratio or up to 1.5.

Mr. Head: Yes, it could be 1.5.

Senator Baker: It could be zero.

Senator Wallace: Yes, if it is a one-for-one ratio.

In your conclusion, you say that although the bill will introduce some changes and challenges for your service, you still believe that you will be able to fulfil your mandate and ensure that we deliver the public safety results that Canadians expect every day.

You have factored in what the implications of Bill C-25 could be, and you still can function effectively to provide the service that Canadians demand.

Mr. Head: Yes, senator. We believe that if we receive the funding that will be associated with that, which will include the funding to provide the programs, interventions and opportunities for offenders, we will be able to sustain the public safety results that we produce now.

Senator Wallace: Is it your understanding that additional funding will be provided?

Mr. Head: That is our understanding, yes.

Senator Wallace: Is that through the Department of Justice Canada?

Mr. Head: That is right. We go through a process to turn the assumptions into calculations.

Senator Wallace: Yes.

The Chair: I believe your minister has made some announcements. Unfortunately, despite our efforts, it has not been possible to have the minister appear before this committee. Could you give us a brief summary of whatever it is that has been announced — for the record — for budget, for new prisons and so on?

Mr. Head: All of those are going through the normal processes right now, which require approvals through cabinet and Treasury Board. At this point in time, I am not in a position to disclose the numbers. We put forward our assumptions that we have used to assess the bill. Based on those assumptions, we believe that the appropriate calculations will result in the amount of funding that we will require to address the needs of an increased population.

Senator Joyal: We had the benefit of testimony by Ms. Lynn Barr-Telford from Statistics Canada. She is the director of the Canadian Centre for Justice Statistics. In her testimony, especially on chart 16 that she handed to us, she projected an increase on average of 11 per cent of additional inmates if Bill C-25, as it is drafted now, is implemented. Does that roughly meet the calculation that you have done in that regard?

Mr. Head: I am not sure of the assumptions that Statistics Canada used in arriving at their number. We have looked at assumptions in terms of the flow through the system over the last few years; we have looked at the numbers in terms of anticipating those offenders who we believe got two-for-one sentencing. I am not sure of the basis for the assumptions that Statistics Canada used.

Senator Joyal: What are your assumptions? What is the figure you have for the increase?

Mr. Head: At this point, I cannot disclose the numbers because they are considered to be cabinet confidence. On the assumptions, we have looked at the number of offenders who were primarily serving a sentence of two to three years. We looked at the flow through over the last couple of years to get the average. We made some assumptions around the significant percentage of offenders who were receiving a two-for-one ratio. We then made some assumptions around the fact that the majority of those offenders would probably be receiving one-for-one credit for time served and arrived at some base numbers.

Senator Joyal: However, we cannot have those numbers?

Mr. Head: At this point in time, they are in the realm of cabinet confidence, and I am not able to disclose them.

Senator Joyal: I can understand your position. However, you will understand that in our position, we are asked to accept a bill whereby we must convince ourselves that the implication of the implementation of this bill will not make the system worse but will, in fact, at least make things equal to what they are now, although some of the inmates population are in a dire situation. Here, I am referring to the Aboriginal people. If I understood your background, you were in the Yukon and Saskatchewan where they have a large Aboriginal inmate population.

It is difficult for us — and, I am putting it in the most diplomatic terms — to accept your testimony that you have done the calculation, but we cannot figure out those calculations because they are cabinet documents. I think that it is part of the overall picture of our role to have a principled position and to have real figures and the real financial impact of this bill, especially if the calculations have been done. If you had told us that you had not made those calculations, then I would understand that you would do it when you were faced with the challenge. However, it is quite clear that you understand the implication of this bill.

We, as legislators, are requested to accept this bill without the proper figures and without understanding its impact. You will understand that it is difficult for us to move on with this, especially when we heard from the correctional investigator and the executive director of the Office of the Correctional Investigator who described a system that, to put it in mildly, does not function on gold — that is, on the basis of the number of inmates who can have access to the rehabilitation programs that will make them safer when they leave the Correctional Service of Canada.

We are put in a situation whereby we have a witness who tells us that without the proper money, we will create more problems. We were expecting the figures from you because we were told by the previous witness to ask Mr. Head, that you would give us the figures. I understand that you have the figures but that you are barred from giving them to us.

Mr. Head: If the numbers were in the public domain, I would gladly be able to speak to them and explain them to you. However, they are not, and I am just not in a position to disclose them. I can talk to you about how we are planning to respond to the needs of the offenders; I can talk to you about some of the gaps that the correctional investigator probably pointed out in relation to programs. However, the numbers are not in the public domain, and I am not at leisure to disclose those numbers.

The Chair: Senator Joyal, do you mind if Senator Baker has a supplementary?

Senator Joyal: No; this is on an issue that I had. I have the charts here from Ms. Barr-Telford, chart 16. We asked a question specifically on that, namely, the impact on those who are presently in the provincial penitentiary system and will be rolled over into the federal penitentiary system and those in the federal penitentiary system who will have to serve longer sentences within the federal penitentiary system. We are trying to understand the implementation of this bill, and you say to us that, yes, you have done that, that you have an understanding of the system so that you know where you can see the wave coming and how you will deal with the wave. We were told that the figure is 10 per cent to 12 per cent. Those are not my own calculations. They come from the other experts who the chair and the steering committee called upon to try to help us understand this bill.

I understand your limit to answer the question, but you must understand that we were told by other witnesses to question you. However, when you come here, we cannot get the answer that we need. We were told by the previous witnesses that the impact of this bill in the system will be tremendous because of a shortage of money in the system to provide for adequate services to maintain it in a proper balance of serving the Canadian public by releasing inmates who have a greater chance of rehabilitation once they have served their terms.

Mr. Head: Again, senator, if I was in a position to share those numbers, I would do that; there is absolutely no question about it.

In terms of the generalities of what I can talk about, there is no question that we see the increase as a significant increase for us. We see it as one that will require us to build some additional permanent accommodation, as I mentioned in my opening comments. It is also significant enough that we would require the funding to increase our capacity to deliver education programs, correctional programs, employment skills programs and our community supervision capacity, as well.

The question that keeps getting asked is whether it is a significant increase. The answer is yes, and it is one that requires an investment both from the accommodation side and the programming side.

However, senator, if I was permitted to give you those numbers, I actually would have included them in my opening comments.

The Chair: Senator Joyal, you have sparked a long list of people who want supplementary questions.

Senator Joyal: It is part of the debate. I thought at the end of the day, we would have a greater understanding of the impacts.

The Chair: We all had hopes.

Senator Baker: While I can understand cabinet secrecy is a well-established principle for withholding certain information, I wonder if the witness could be asked, Madam Chair, first, is it not true that the Correctional Service of Canada does rely upon the expertise of Statistics Canada in the formulation of their figures; and, second, whether he would care to comment on the accuracy of the work being done by Statistics Canada, as far as their figures are concerned?

The Chair: I think you have just put that question to Mr. Head, Senator Baker.

Mr. Head, would you care to respond?

Mr. Head: As I mentioned before, the figures that we used were figures that were based on the number of offenders who have two- to three-year sentences, looking at the admission rates. Those were not figures that we derived from Statistics Canada. We have our own systems that capture that data.

Senator Baker: You give that information to Statistics Canada when they ask for it, is that correct?

Mr. Head: They have that for producing their annual reports.

Senator Baker: Yes, they do. This is what the witness told us; it is where they got the information in arriving at their figure. You would not go so far as to say that Statistics Canada's figures are not well founded, would you?

Mr. Head: Oh, no, not at all.

Senator Baker: Of course you would not. Given that they have done the same system, we can draw inferences from that. Madam Chair, I would assume that the 11 per cent would be accurate.

The Chair: I think that in fairness to Ms. Barr-Telford, she did stress that it was just a projection or an estimate. She was not the only one, incidentally, who came up with a projection of that order of magnitude. In fairness to her, I want to say that she was not making a firm forecast. She was making a projection based on what was currently available in terms of information, et cetera. Nonetheless, as I say, she is not the only one who came up with a comparable number.

Senator Baker: However, I would suggest that you would have to make a decision here because, as you understand by section 115 of the Criminal Code, this is a judicial proceeding in which questions must be answered and there must be a reason for not answering.

The Chair: I think that Mr. Head has given us an acceptable reason for his inability to answer a question even though he does know the answer to the question. It is extremely regrettable that the minister has not found it possible to appear before this committee.

Senator Wallace: I must say I find it somewhat disappointing that we have before us Mr. Head, who is responsible for the Correctional Service of Canada and is obviously very familiar with its operations.

I take it you have done a serious analysis of the impact of Bill C-25. It was not something taken lightly. You said to us that you believe you can meet the requirements and the demands of our country if Bill C-25 is implemented; you feel comfortable with that.

I find it disconcerting that the suggestion would be that we would disregard or discount your testimony because we do not have all of the numbers before us. I would seriously doubt anyone among us is as capable of going through and doing that financial analysis to the extent you are able to.

We have heard the demands that will be put on CSC that could result from the impact of Bill C-25. Once again, do you feel comfortable that you can provide an adequate correctional system if Bill C-25 is implemented, that you will have the resources and that you have thought this through adequately in appearing before us today and giving your evidence?

Mr. Head: Senator, to answer your question quite shortly and bluntly, yes. I believe that we have done a very thorough analysis of the impact based on a set of assumptions. To be honest, absolutely no data exists for us to go to for some of the assumptions, short of doing a file review of 50,000 offenders across the country. We have made some very significant assumptions that allow us to do the planning that we need, both from an accommodation perspective and, just as importantly, from the delivery of programs to meet the needs of the offenders.

As I pointed out, we will have challenges in the short term; we cannot build units overnight. We will have some short-term challenges but, in the long term, I strongly believe the resourcing will be there for us to meet the assumptions and will allow us, again, to produce the types of results that we are producing now.

Senator Wallace: I take it the programs you would be providing are those that would relate very much to the rehabilitation of those who are incarcerated?

Mr. Head: That is very much the case. I would like to point out, senator, that part of what we are doing within the Correctional Service of Canada now is addressing some of the issues that the correctional investigator has pointed out around the access to programs within the system. We are actually doing a major revamp of our programming model so that we can get offenders involved in programs much earlier in their sentence, for example, at the time they are actually being admitted, so that they have an opportunity to, at least, make a submission to be considered at the parole board at an earlier date than their statutory release date.

Regardless of Bill C-25, we are currently making changes within the system to make access to programs for offenders more accessible faster so that we do not have offenders going out later in their sentence. We know the sooner that we get them involved in programs and get them involved in a gradual release back to the community, the greater chance that we will produce the public safety results Canadians expect from us.

Senator Wallace: That is very encouraging to hear.

Senator Nolin: The questions put by my colleagues, Senator Baker and Senator Wallace, have provided an answer to my question. Therefore, I understand that the calculations or results that Statistics Canada provided are not that different from the ones you have, is that not correct?

Mr. Head: Again, I do not know the assumptions that Statistics Canada applied to the numbers. The numbers they had are numbers that would have come from our system and from the provincial system. I can only assume the assumptions they used to arrive at their definitive number are maybe close; however, I do not know what their assumptions were.

Senator Nolin: We have to respect cabinet confidence.

The Chair: Mr. Head has to respect that.

Senator Nolin: We have to accept his testimony on that.

Senator Joyal: I would like to translate for you, Mr. Head, what we just heard in French before you arrived to testify in this room tonight: The current problem with programming is access. CSC allocates only 2 per cent of its total annual budget to offer programming. For now, offenders have to contend with long waiting lists for programs, cancelled programs because of insufficient funding or lack of trained facilitators, delayed conditional release because of the service's inability to provide timely programs required to complete their correctional plans and longer time served before parole consideration. The situation is becoming critical as more and more offenders are released later in their sentences and, too often, having not received the necessary programs and treatment to increase their chance of success in the community.

That is from Mr. Zinger who happens to be the executive director and general counsel at the Office of the Correctional Investigator.

You testify after him and tell us that everything is fine, which you expect us to believe after we have heard that testimony and those of the Canadian Association of Elizabeth Fry Societies and The John Howard Society of Canada, who happen to be in the field, if not on the floor, of the cells of the prisons of Canada.

I want to believe you. I know you are an honest gentleman and have served Canadians well in your career. However, you will understand that with that statement coming from the investigator, I entertain a small doubt about the easiness with which this bill will be implemented, considering the condition in which the Canadian prisons operate in terms of programming these days.

Mr. Head: Let me reassure you. I do not want to leave you or any of the other senators with the impression that what we are about to do will be a cakewalk. There is no question about that. We have some challenges, as I mentioned in my opening comments, that we will face with this bill. We have some current challenges that we face right now.

I do want to respond to the word "critical." I am not sure that I would describe the state of correctional programs in our service as being in a critical condition. We have some challenges in making programs available to all offenders in a timely way. We continue to produce the public safety results that we have for the last couple of years, so we are not seeing a significant shift in that.

As I said, we are making some changes in how we deliver programs within the organization. The number of 2 per cent has been used in the past, and when you look at correctional programs by themselves, the number is around there. We spend about $56 million on correctional intervention programs; we spend about $20 million on education programs; and we spend about $47 million on employment skills and employability skills. That is $130 million that we spend on interventions for offenders on a $2.2-billion to $2.3-billion budget.

In addition to that, we have expenditures that are specific to mental health. We received investments over the last several years for our community mental health initiative — approximately $29 million over five years. We received an ongoing $16 million for mental health initiatives within the institutions.

Monies that are available to us to deliver programs have increased significantly over the last couple of years. In addition, we will be receiving, as a result of the strategic review process that we went through, an additional $44 million. A significant portion of that will be monies for us to invest in violence prevention programs; a revised and shortened intake assessment process so that we can get offenders placed and involved in programs quicker; community maintenance programs so that we have programs that can sustain the offenders once they move to our supervision out in the community; a significant increase in the monies for Aboriginal programs; and an increase in our budget for what we call "pathways units," which are units specific to Aboriginal offenders who want to follow an Aboriginal, culturally sensitive healing path.

The use of the word critical is not one I would use to describe the system. Are there challenges? Absolutely. There is no question.

We know that we are not getting offenders into programs as soon as we should. We need to do that. As I pointed out to Senator Wallace earlier, we are revamping our correctional programming model to begin the delivery of programs to offenders at the intake assessment units to give them the basic primers that they would receive for the substance abuse programs, the violence prevention programs and the anger management programs so that they have already have a start on those programs. When they receive their permanent placement into a penitentiary, they will then get plugged right into the programs and not have to wait like they do right now.

There is no question that there are challenges. It is 150 days before an offender starts their first program. Is it critical? That is not the word I would use. We have significant challenges and we are working on that. We have received investments from the government to make those changes that we need to our overall programming regime.

We have also spent a great deal time in the last year looking at how we enhance the employability skills of offenders. We know that even with the work that we do to address what we call their "criminogenic needs," those factors that led to them to come into the system — substance abuse problems, anger management problems — we have to ensure that they are going out the door with skills that will allow them to find a job so that they can stay out in the community as law-abiding citizens and earn money for themselves and their families.

We are making investments to pursue new pilot projects that will allow the offenders to take advantage of the job market opportunities that are available when they are released.

Senator Watt: We have heard a great deal about a lack of access to programs. You mentioned that some new funding is coming with Bill C-25. Will the funding provide better access to the programs for the Aboriginal people?

Mr. Head: Yes, senator. One of our priorities in the organization is to increase the opportunities that are available to First Nations, Metis and Inuit offenders. This is one group of offenders that we have probably more challenges with in getting them involved in programs.

We make two streams of opportunities available to Aboriginal offenders: those mainstream programs that non-Aboriginal offenders normally access and the spiritual, culturally sensitive programs.

In the last couple of years, we have started to expand those programs. We will receive some investments starting this year and building up over the next couple of years that will allow us to increase the number of Aboriginal-specific programs. We will have, for example, Aboriginal substance abuse programs and Aboriginal violence prevention programs that involve elders and cultural teachings as part of the program delivery.

As I mentioned earlier, we are also receiving funding to expand our pathways units — units within our penitentiaries where Aboriginal offenders choose to follow a more traditional or cultural healing path — making more units available for Aboriginal offenders to follow that route.

We have more work to do with the Aboriginal offenders than we do with the non-Aboriginal offenders. However, as I said, we have received investments over the last couple of years and will receive additional investments in the coming years.

Senator Watt: I would imagine the investment is coming from the Indian and Northern Affairs Canada?

Mr. Head: No, it is coming straight from the budget to the Correctional Service of Canada as a result of Budget 2008, Budget 2009 and the strategic reinvestment funds.

Senator Watt: Could you give me an idea of the amount of dollars we are talking about here?

Mr. Head: I can get that for you. I do not have those numbers off the top of my head. I can supply the dollar figures through the clerk.

Senator Watt: You have information that can be made available, is that correct?

Mr. Head: That is right, yes.

Senator Watt: How many Aboriginal offenders benefit from the programs before they are released?

Mr. Head: The exact number is not as high as we want. I do not have the exact participation rates.

Senator Watt: The record is kept, though.

Mr. Head: Yes, it is. I can provide, through the clerk, the participation rates for both non-Aboriginal and Aboriginal offenders in programs.

The Chair: First, am I to understand that it is basically the policy of CSC that inmates of federal institutions should have single occupancy of cells — one cell, one inmate?

Mr. Head: That is our desired approach, yes.

The Chair: What proportion of inmates are now double-bunked or more?

Mr. Head: Right now, it is about 9.7 per cent, so just about 10 per cent of the population.

The Chair: You would expect that to increase, from your testimony.

Mr. Head: In the short term, with Bill C-25 being enacted, yes.

The Chair: In your testimony, you say that, in the short term, you will also require additional temporary structures to house offenders. What are temporary structures? Are you referring to trailers?

Mr. Head: In some cases, they may be trailers in our minimum security facilities. In our minimum security facilities, we have the ability to construct wood-style buildings much quicker than the traditional concrete and bars. We are able to do that in an accelerated fashion.

The Chair: You cannot give us any estimates of how much more double-bunking and additional temporary structures you expect. Can you tell us what you define as the short term?

Mr. Head: Short term is two to three years.

The Chair: You went on to say that, in the long term, you aim to construct more permanent accommodation. When would the long term begin?

Senator Joyal: When the short term ends.

The Chair: No, there is medium term as well.

Mr. Head: Everything being equal and the bill being passed, we would be starting the process for the long term shortly after the bill has been passed because then we have to construct. Construction would take two to three years. We would see taking occupancy of the longer-term solution around year three.

The Chair: On the matter of budgets, let us assume for the sake of argument, a 10 per cent increase in population. To maintain the present level of services and accommodation, does that require a 10 per cent budget increase, or are there some economies of scale, for example, just getting more use out of computer programs? Can you give us any guidance?

Mr. Head: It does not matter whether it is 10 per cent or any number; we would be looking at whether there were possibilities for economies of scale. The economies of scale would usually come through any design changes that we can make in the facilities. If we were just to say that we would multiply our existing structures, we could not achieve much in efficiencies. However, as we go forward with long-term solutions, i.e. accommodations, we would look at economies of scale through what design could allow us to do. That would be in terms of deployment of staff in a different way based on a different structure.

The Chair: How much does a new prison cost?

Mr. Head: I would have to get back to you with a number. For example, building a medium-security unit costs us about $20 million; that is a unit of about 100 people. A minimum-security unit costs about $10 million, and I think an institution costs around $70 million or $80 million, but I would have to get back to you.

The Chair: Those are orders of magnitude that we can keep in our minds.

Mr. Head: Exactly.

Senator Wallace: Mr. Head, I have some information here, and I just want to get it on the record and confirm that it is correct. The 2009 budget for Correctional Service of Canada was increased by $14 million over the previous year, and it would increase over the next three years by another $48 million.

Mr. Head: Yes, by year four in terms of the strategic reinvestment money I was talking about. This year, we got an additional $14 million, and that ramps up to a permanent increase of $44 million ongoing each year.

Senator Wallace: The funds, which you are not able to provide for reasons of cabinet confidentiality, but the additional funds required to respond to Bill C-25, would be in addition to those monies?

Mr. Head: Yes.

Senator Wallace: No portion of that would be included within the numbers that you have.

Mr. Head: No. Those numbers will carry on based on the current population and activities that we have underway. Anything as a result of Bill C-25 would be on top of all of that.

Senator Wallace: It would seem your services are doing well in being funded. That seems to be a significant increase when all is said and done.

Mr. Head: For a correctional jurisdiction, it is unheard of to see that type of increase, yes.

Senator Wallace: It is unheard of?

Mr. Head: Yes.

The Chair: What is your basic budget?

Mr. Head: It is $2.3 billion.

The Chair: Therefore, $40 million on $2.3 billion would be a 2 per cent increase, is that correct?

Mr. Head: It would be about 2 per cent, yes.

Senator Joyal: You have indirectly raised the context of my last question, which deals with prison crowding. The previous witness, Mr. Sapers, from the Office of the Correctional Investigator, gave us disturbing testimony in relation to prison crowding. I want to quote the statistics because he had them:

. . . prison crowding can lead to increased levels of tension and violence, and can jeopardize the safety of staff, inmates and visitors. As I indicated in my last annual report, the current level of tension and violence within Canada's penitentiaries is already excessive. For example, for the first quarter of this fiscal year —

The first quarter is three months.

— the most recent data available, CSC reported a staggering total of 2,231 security incidents and 577 reported physical injuries to inmates. During this three-month period, the security incidents included assaults on inmates, disciplinary issues, inmate fights, medical emergencies, self-inflicted injuries and three deaths.

That is in three months. Multiply that by four and you have the figures for the year. You will understand that prison crowding seems to be having serious consequences on the lives of inmates and visitors and on the type of prisoners that are released onto the streets once they have served a longer sentence.

I would like to understand what you are telling us. You say that the temporary period would be two to three years. In fact, those figures will be reported for another two to three years, with the pressure of additional inmates on those that are already there.

In other words, the prison crowding as it is now will be exacerbated within the next two to three years, according to what you tell us, in the short term absorbing those new prisoners. You will understand that it is important for us to take that into consideration when we are requested to enact Bill C-25 as it stands now.

Mr. Head: I think you can appreciate that those are the issues that worry me on a day-to-day basis. My staff are on the front line dealing with those individuals and have to intervene and try to prevent it. We are not expecting to just sit back and accept those numbers the way they are. We are making efforts to try to deal with the factors that lead to those numbers.

For example, one thing that causes issues around violence in the institutions is the introduction of drugs and the drug trade in the institution. We received a significant investment over the last couple of years to tackle the issue of illicit drugs being introduced into the institution, including monies for increasing the number of drug detector dog teams, technology and staff on the perimeters to prevent what is known as "throw-overs" — people from the outside sneaking up on our perimeters and launching drugs into the yards for prisoners to secure. Drugs lead to problems, and we are tackling the issue of violence.

The issue of gangs in our institutions is a concern. With more efforts to tackle the gang problems out on the street, they end up in the criminal justice system; they come into the provincial systems; they come into the federal penitentiaries. We are making efforts to address the issue of gangs. For example, we are trying to address the growing number of problems that are associated with Aboriginal gangs in the Prairie provinces. It is a significant problem in the communities. It is a significant problem in our penitentiaries in the West.

We will not just accept these numbers in the next three years; we are making efforts to combat the factors that lead to the issue of security incidents and, more specifically, the issues of violence or assaults against inmates.

Senator Joyal: How much does it cost per diem for a federal prisoner?

Mr. Head: The average annual cost overall is about $84,000 per year. That is the combined cost of institutions and community supervision. The average cost, if I recall correctly, for the institution is around $101,000 and community supervision is around $23,000 or $24,000 per year.

Senator Joyal: How many federal prisoners do you currently house?

Mr. Head: Currently, we have just over 13,000 offenders incarcerated and about 8,800 under community supervision.

Senator Joyal: If we make a calculation, without committing you to saying yes or no, with those figures and the per diem, the annual cost of the prisoners, with an average of a 10-per-cent or 12-per-cent increase, we could get the figures of what this bill would cost according to the context in which it is proposed to us?

Mr. Head: Nothing is wrong with the logic of your math, senator, but I am not sure what number would result.

The Chair: Our very last question will come from Senator Watt. Just before I give you the floor, Senator Watt, I will tell colleagues, and indeed everyone else in this room, that when the public portion of this meeting ends, I will ask for an in camera, two-minute meeting, not more. It will be relatively important for us to do that.

Senator Watt: Thank you. Just one more question to get some clarification here.

I understand that a great number of Aboriginal people end up in maximum security penitentiaries.

Mr. Head: On average, yes. If we put aside the maximum security, on average, Aboriginal offenders are classified higher than non-Aboriginal offenders, yes.

Senator Watt: Is there funding that will make programs accessible for those people to enter into, as you mentioned earlier?

Mr. Head: Yes. We are looking at the Aboriginal programs also being available in the maximum security institutions. For example, at the Kent Institution in Agassiz, British Columbia, we have a pathways-type unit that is being put in place to address the needs of the maximum security Aboriginal offenders. We are making investments at the maximum security level as well.

Senator Watt: That is interesting.

The Chair: Thank you very much, Mr. Head. It has been slightly frustrating circumstances for you and for us, but you have nonetheless given us quite a large amount of information. We are grateful to you for that and for being here this evening.

(The committee continued in camera.)