Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 9 - Evidence - June 9, 2010

OTTAWA, Wednesday, June 9, 2010

The Standing Committee on Legal and Constitutional Affairs met this day at 4:17 p.m. to study Bill S-6, an Act to amend the Criminal Code and another Act.

Senator Joan Fraser (Chair) in the chair.


The Chair: Honourable senators, welcome to the Standing Senate Committee on Legal and Constitutional Affairs.


Today, we begin our study of Bill S-6, an Act to amend the Criminal Code and another Act. As our first witness, we are very pleased to be able to welcome back to this committee for the umpteenth time, the Honourable Robert Nicholson, Minister of Justice and Attorney General of Canada, who will make a statement, following which we will ask him questions. You practically have a permanent name plate down there, minister.

As usual, colleagues, the minister's time is limited, so we will all be very concise in our questions and I know he will be in his answers.

Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you very much, Madam Chair. I am pleased to be here with John Giokas from the Department of Justice, as well as Catherine Kane, neither of which are strangers to you or this committee. I am pleased to have them here to assist me and the committee on this bill.

I am pleased to meet with you to discuss Bill S-6, an Act to amend the Criminal Code, the ``Serious Time for the Most Serious Crime Act.'' The bill proposes to make major changes to the ``faint hope'' regime. As committee members are also aware, the so-called faint hope regime found in section 745.6 of the Criminal Code allows those convicted of murder to apply to be eligible for early parole as soon as they have served 15 years of their life sentences.

In this regard, let me go into a bit of detail about the law. I note that, on April 28, Senator Carignan provided an excellent overview of the nature, origins and the impact of the faint home regime in his speech at second reading. Upon conviction for first and second degree murder, the Criminal Code provides for a mandatory life imprisonment sentence, coupled with a mandatory parole ineligibility period. For first degree murder, that mandatory ineligibility period is, of course, 25 years. For second degree murder, it ranges from a minimum of 10 years to a maximum of 25 years, depending on a variety of factors as set out in section 745 of the Criminal Code.

However, as Senator Carignan explained, the faint hope regime was created in 1976 as part of the parliamentary compromise that resulted in the abolition of capital punishment. Although it applies to relatively few offenders, the availability of early parole eligibility for convicted murderers was, and remains, a source of concern for many Canadians.

As justice minister, I cannot help but be aware of these concerns. Many complain, for example, that the existence of a mechanism that allows convicted murderers to short-circuit the mandatory period of parole ineligibility imposed at the time of sentencing offends truth in sentencing and allows for overly lenient treatment of murderers. I have also heard from victims' advocacy groups who have told me that faint hope applications further traumatize the families and loved ones of murder victims by forcing them to relive the details of the crime during the faint hope review process.

Measures proposed in Bill S-6 are in direct response to these concerns and have two principal goals. The first goal is to amend the Criminal Code to bar offenders who commit murder on or after the date the amendment comes into force from applying for faint hope. In short, Bill S-6 proposes to effectively repeal it for all future offenders. In this regard, Bill S-6 completes the process that culminated in the 1997 amendments which entirely barred all multiple murderers who committed at least one murder after the coming into force from applying for faint hope.

Honourable senators, as you are no doubt aware, there is a fundamental constitutional principle that a sentence cannot be changed after it is imposed. Both the mandatory parole ineligibility periods as well as the availability of faint hope are part of the life sentence for murder. Repealing the faint hope regime as it applies to the more than 1,000 already-incarcerated murderers would be a retroactive change in sentence that would not be expected to survive a court challenge.

That does not mean, however, that stricter faint-hope application procedures cannot be applied to them. Thus, the second thing Bill S-6 does will be to tighten up two of the three stages in the current faint hope application procedure with the goal of restricting access for these offenders. Honourable senators, the rationale for these amendments is straightforward: To restore truth in sentencing; to lessen the suffering of the families and loved ones of murder victims; and to protect society by keeping potentially dangerous criminals in custody for longer periods of time.

In this latter regard, I am well aware that a successful faint hope application does not automatically lead to parole. A successful faint hope applicant must then apply for parole directly to the National Parole Board. However, in point of fact, most successful faint hope applicants do obtain early parole. According to the latest National Parole Board statistics, 146 of the 276 overall faint hope applicants obtained reductions in their parole ineligibility periods, and 134 were subsequently paroled.

I mentioned that the current application process has three stages. First, applicants must convince a superior court judge in the province where the conviction occurred that there is ``a reasonable prospect'' that their application will be successful. If this threshold test is met, the judge will allow the application to proceed to the next stage.

This is a relatively easy threshold to meet. Bill S-6 will strengthen it by requiring applicants to prove that they have a ``substantial likelihood'' of success. This will prevent less worthy applications from going forward.

At present, as you are aware, rejected applicants may reapply in as little as two years. Bill S-6 will increase this minimum waiting period from two to five years. This will reduce the total number of faint hope applications that an offender can make during his or her parole ineligibility period.

An applicant who succeeds at stage one must then convince a jury from the jurisdiction where the murder occurred to agree unanimously to reduce his or her parole ineligibility period. An unsuccessful applicant may reapply in as little as two years. Again, we will change this waiting period to five years.

An applicant who is successful at stage 2 of the process is able to directly apply to the National Parole Board. We are not proposing any changes in that regard.

Under the current law, convicted offenders may apply for faint hope at any point after having served 15 years. Bill S-6 will change this by requiring applicants to apply within 90 days of becoming eligible to do so. This means that applicants will have to apply within three months of completing 15 years of their sentence. The goal is to provide greater certainty to the families and loved ones of victims about when, or whether, a convicted murderer will bring a faint hope application.

I would like to address one of the criticisms levelled at Bill S-6, namely, that it ignores rehabilitation in favour of punishment. Let us be clear that Bill S-6 does not affect the normal parole application process. In short, there is nothing in this bill that in any way affects the ability of convicted murderers to rehabilitate themselves and to apply for parole in the normal course, once the parole ineligibility period imposed on them has expired.

As I have said many times before, this government is committed to redressing the balance in our criminal justice system to ensure that the interests of law-abiding citizens and victims are protected.

Let me add that I strongly believe that Canadians will support this measure. I would urge the members of this committee to support it as well, and to help ensure its speedy passage. Thank you.

The Chair: Thank you, minister. Unsurprisingly, we already have a growing list of people who want to ask questions.

Senator Wallace: Thank you again, Minister Nicholson, for that presentation.

The issues around Bill S-6 involve sentencing. As would be expected, everyone has an opinion of some sort on the fairness and equity of sentencing in particular circumstances. As you are well aware, the purpose and the principles of sentencing are set out in the Criminal Code and, in particular, in section 718.

I want to paraphrase section 718 and then ask your comment on something.

Section 718 says that:

The fundamental purpose of sentencing is to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions . . .

Regardless of all the opinions we have, that is what the code requires. I believe the issues around Bill S-6 very much relate to this fundamental purpose of sentencing: first, respect for the law; and second, the maintenance of a just, peaceful and safe society.

Mr. Minister, in the preparation and presentation of this bill, what consideration or what role have these principles played in the development of it?

Mr. Nicholson: Thank you for the question. You have correctly set out the principles upon which decisions are made in this area. We want to have respect for law; we want to have people's confidence in the criminal justice system. In my opinion, existence of the faint hope clause reduces people's confidence in the criminal justice system.

To be specific, to re-victimize people over and over again is wrong. I hear this all the time. When I talk with victims in this particular area, they tell me what they go through on this. Even individuals who have no reasonable prospect of parole after 15 years sometimes use this as another means to continue to victimize the families that he or she has already victimized.

That being said, I think this is a very reasonable measure to take forward. It is my firm belief that this has widespread support in this country. It will be applauded and will help increase people's confidence in the criminal justice system and their respect for the law of this country.

Senator Wallace: When you mention respect, I think that for people on the street who are not familiar with the provisions of the code, it is difficult at times to understand when a sentence is given and yet the sentence is not the sentence. I believe that, in many cases, we have seen parole granted in cases involving murder and treason. It is very difficult to explain.

Mr. Nicholson: It undermines people's confidence; there is no question about that.

Senator Wallace: You referred to the present test that a judge would apply in considering whether a parole application could succeed. The present test is one of ``reasonable prospect,'' which would change to one of ``substantial likelihood.'' Could you explain a bit more about the distinction between those two tests?

Mr. Nicholson: It is certainly a higher test. The feedback that I get is that the test, as it is presently constituted within the Criminal Code, is relatively easy to satisfy. Then you get into the next process, the second stage of this.

We do not want to waste anyone's time, so we say there has to be a substantial likelihood. I think a judge is in a good position to make that decision. If he thinks there is a substantial likelihood that this will be a successful application, let us move forward. However, if there will not be that substantial likelihood, why put everyone through this, including the individual, if he or she will not get that early parole? It works for everyone.

Senator Wallace: As you pointed out, it is a stricter test than what exists today.

Mr. Nicholson: Yes, it is.

The Chair: Minister, I interrupt to say we have had a series of conflicting bits of information about your timetable. First, you had to go for a vote at 5:30; then you did not have to go for a vote because you were just coming out of a vote; and now the latest word is you have to go for a vote at 5:10. When do you have to go for your next vote?

Mr. Nicholson: I have no idea.

The Chair: I hear an authoritative voice saying 5:10. That means, colleagues, we have exactly half an hour before we can let the minister go.


Senator Carignan: I had a question, but the minister has answered it already. Given the fact that I know a little bit more about this bill, I will yield the floor to my colleagues.

The Chair: We appreciate that. Thank you very much.


Senator Baker: I will congratulate the minister. He has perhaps set a record for the number of bills that have been submitted to Parliament in any one term as minister. He has an excellent group of people here in this committee on the Conservative side who are facilitating the passage of his legislation.

Mr. Nicholson: I want you to facilitate it as well, senator. I would welcome that.

Senator Baker: Minister, this is a change to section 745.6, as you said, of the Criminal Code, which will bar early parole for convictions that happen after the passage of this bill, if I understand you correctly? If you go through the Criminal Code a little further, you will see that next to section 745 is section 749, which allows, when you take away this hope, the person to apply to you as the minister. Perhaps it is to the solicitor general — or as you call it now, public safety and emergency preparedness. Do you or your experts anticipate there will now be an increase in requests to the cabinet to accomplish the same thing you are wiping out in section 745.6?

Mr. Nicholson: With respect to the Royal prerogative, that option is always open to individuals, as it is today. I do not see any particular change in that area.

Senator Baker: You said that this was not a retroactive provision; it will only apply to convictions after the passage of the bill. However, you went on to say that you are changing with the ``goal of restricting access'' — these were your words — by changing the standard from ``reasonable prospect'' to ``substantial likelihood.''

Mr. Nicholson: That is right.

Senator Baker: That is what Senator Boisvenu would call a retrospective application of the law — not retroactive, but retrospective — because you are changing something for the future on someone who has been convicted of something in the past and is presently serving.

You say that you would not introduce a retroactive measure because it would not withstand a Charter challenge. Do you think, on your advice that you are receiving, that a retrospective application of the law in this case would survive a Charter challenge?

Mr. Nicholson: We certainly do, Senator Baker, inasmuch as these are procedural changes with respect to the applications. You mentioned the reasonable likelihood or the reasonable prospect changes. There, of course, you have to remember the changes with respect to the timing of these applications as well — that they will not be able to be made every two years, they will have to be made every five years. Therefore, we are preserving the ability of these individuals to make their applications for the benefit of the faint hope provisions in the Criminal Code, but there are some procedural changes that are taking place. I am confident that making changes retrospectively as opposed to retroactively will survive a court challenge.

Senator Baker: The phrase ``substantial likelihood'' is a high standard. It is in the bail provisions, section 515 of the Criminal Code; it is a very high standard. I do not understand your use of it here in this legislation.

You are asking a superior court judge to make a determination of substantial likelihood that a 12-person jury will unanimously approve the early consideration. Minister, do you not think that would be interpreted as influencing the jury? The same judge who is to make this determination before it goes to a judge and jury will be saying, yes, there is a substantial likelihood, and you have 12 jurors who have to unanimously consider the same question — whereas with what was there before, the scheme of the act was that a reasonable prospect would not interfere with the considerations of the jury. In this case, do you not think that this will be interpreted as influencing the jury?

Mr. Nicholson: Again, I think the juries that would be constituted would go through the criteria in section 745.63. They would go through the five different tests. I see no reason why they would not. They would be seized with the matter.

You pointed out that it is a higher test, and I thought you would suggest we go to an even higher test, such as ``substantial likelihood'' or ``beyond a reasonable doubt.'' We did not have a higher test; we decided on that test, as you correctly pointed out, which is also contained within the bail provisions of the act.

I have complete confidence that those individuals still in the system will have the benefit of this. When there is a properly constituted jury and when the judge goes over the criteria in section 745.63, I have complete confidence, as you do, in the jury system of this country in general. We all have confidence in the system. We believe it works. I do not believe there is any prejudice in the fact that some other judge has referred this matter to them on the basis of a certain test in this particular legislation.

Senator Carstairs: The 25-year parole eligibility has been challenged before the courts. Interestingly enough, one of the arguments is that it does not contravene the cruel and unusual punishment provision because of, in part, the faint hope clause — that, because individuals can apply for the parole to be shortened after a 15-year period of time, this makes 25 years, therefore, not cruel and unusual punishment. How, therefore, will this withstand a Charter challenge?

Mr. Nicholson: I do not accept your premise that, for an individual who has been given a life sentence but has the ability to apply for parole after 25 years, that that is cruel or unusual. The individual who has the ability to apply for parole after 25 years has something to look forward to, another incentive to rehabilitate themselves and give them the time necessary to contemplate on the tragedies they have inflicted on other individuals in society. I do not think there is any question about it. This is very reasonable and very proper in terms of truth in sentencing.

There are many countries around the world where when you get life, you get life. That is not the approach we are taking in Canada. We are saying this is a serious business, life in prison, but we will give you that hope for 25 years; you can apply for that.

Believe me, we will reduce victimization in this country. You only have to talk to the families of murder victims. They will tell you over and over again how terrible the process is that they have to go through on these faint hope clause applications. Let us bring this to an end. This is what Canadians want us to do.

Senator Carstairs: Those are not my words; those are the courts' words. The courts of this country have said it is not cruel and unusual punishment because of the faint hope clause. How will you argue in court that now you have a situation in which you have eliminated the faint hope clause?

Mr. Nicholson: This is one of the factors that has been mentioned, but it was not determinative. That is the advice that I have, senator.

Senator Carstairs: In terms of the discussion that Senator Baker entered into with you, one of the arguments made is that the word ``reasonable'' is considered to direct a jury. If the word ``reasonable'' directs a jury, then I would suggest to you that the phrase ``substantial likelihood'' has an even higher rate of interpretation by the jury that this is what the judge wants. This is a substantial likelihood; this is, therefore, what the judge wants; therefore, it will influence the jury's decision.

Mr. Nicholson: I have complete confidence in the jury. When the jury is empanelled, the judge will go over the criteria and tell them the matters they should consider: the character of the applicant, the applicant's conduct while serving the sentence, the nature of the offence, any information provided by a victim at the time of the imposition of sentence, and any other matters the judge considers relevant.

I have complete confidence in the jury system of this country — that, when those individuals are empanelled, they will rise to the occasion and listen to the judge's instructions with respect to their responsibilities. I have complete confidence that they will get the job done.

Senator Carstairs: The judge will be instructing them that there is a substantial likelihood. Is that what we want?

Mr. Nicholson: It is not the same judge, though. We have to be careful here. You make the application to one judge, who can decide whether there is a substantial likelihood of success, and then another judge will empanel the jury. That second judge will explain the provisions of section 745.63 of the Criminal Code. I have complete confidence that this system will work and will continue to work.

The Chair: Second round.

Senator Carstairs: I am the critic.

The Chair: I am trying to be fair to everyone.


Senator Boisvenu: Good afternoon, Minister, Ms. Kane, Mr. Giokas.

Minister, before being appointed to the Senate last January, I was president of an association of individuals dedicated to defending the rights of families whose loved ones were murdered. The most frustrating thing for these families is seeing that there are essentially two justice systems in Canada: one where the court determines the sentence, and the one I refer to as the parallel justice system, consisting of parole releases, which often wields as much power as judges do.

I remember that in my particular case, when I attended the sentencing hearing of my daughter's murderer, the judge said: ``you are sentenced to a firm 25-year period, without possibility of parole.'' It was only two years later that I learned that the murderer was entitled to a new trial after 15 years. What is worse, this person, like most first-degree murderers, is appealing his sentence before the Supreme Court.

Seven years after the murder, the case was closed for us, but then we learned that we would have to appear before the parole board again in six years' time to oppose the murderer's release.

Given the fact that the judge issued a firm 25-year sentence, without possibility of parole, I was wondering in what way criminals' rights would be undermined if this bill were to apply to those already incarcerated?

Mr. Nicholson: That is a good question, Senator. Thank you very much for helping to get this discussion going.


You have been helpful and articulate in this area and you pose a very good question. As you correctly pointed out, and as I have heard from victims' advocates from across this country, after the conviction and the series of appeals that are part of our system, which everyone recognizes, for some people it never ends; they continuously have to relive this.

Reducing the victimization, as I have said over and over again, is what motivates us to get this piece of legislation through. I appreciate there are critics who are worried about the individual who has committed all these murders, but it is time to balance how we treat people in the system. I want to see the rights of victims more prominent, and this is a good example of what this government is doing. Again, I appreciate all your help and advice on this.


Senator Boisvenu: Would you be interested in assessing the possibility of applying this bill to individuals already incarcerated, that is, offenders whose sentence has already been determined by a judge? In what way would criminals' rights be undermined?


Mr. Nicholson: I hear you. We entered into that discussion here with retroactive changes. It is a principle that you get the sentence you are given and you are entitled, in a sense, to count on that. We are making some changes with respect to the procedures surrounding that. At this point in time, I think that is the reasonable approach and the one that will withstand possible challenges to it.

Senator Runciman: I am a strong supporter of truth in sentencing, and I applaud you and the government for moving in this area.

I especially like one element in the greater certainty with the 90 days as well. Individuals have played victims like a yoyo, and in a relatively recent case, the individual cancelled the hearing at the last day and the victims had already travelled.

Mr. Nicholson: Some of these individuals just cannot stop victimizing people. I do not understand it myself. For some of them it can never end, and they use every opportunity, and it is a disgrace.

Senator Runciman: You discussed with Senator Carstairs the 25 years and the issue of rehabilitation. One of the arguments put forward when the faint hope clause was brought into place was that it would encourage rehabilitation. Is there any evidence to support that, over the years the faint hope clause has been in place, it has had that kind of impact to any measurable degree?

Mr. Nicholson: It is always the hope when individuals are incarcerated that they do something constructive with their time. Again, we are saying that, instead of the 15 years, you are looking at 25 years now, so whatever would motivate you to go with 15 years, I presume that motivation would continue, and it should. Of course, if and when these people ever get out again in society, we want them to try to do something constructive for a change in terms of contributing to society but, again, it is very difficult to gauge that.

Senator Runciman: With respect to the International Transfer of Offenders Act and the provisions for people who have committed a murder in another jurisdiction coming back to Canada, has that happened often, say in the last 10 years? Do you have to sign off as a minister on the transfer of someone who committed a murder in another jurisdiction?

Mr. Nicholson: It would be the Minister of Public Safety.

Senator Runciman: That is required.

Mr. Nicholson: The requests go to him and his office, and they make a decision on that. As you know, there are a number of discussions about that process.

Senator Runciman: The number that you arrived at with respect to the parole ineligibility period, 10 years, lines up with the way you treat Canadian prisoners who are incarcerated. There is no distinction in terms of that number.

Mr. Nicholson: With respect to the international transfer of offenders, you are probably directed to Vic Toews, but we try to align these as much as possible so they are fair across the board.

The Chair: Minister, going back to Senator Carstairs' question about 25 years being considered cruel and unusual punishment, set aside for a moment the cruel component. We have been given numbers from your department which suggest that 25 years is at least unusual. The average term served by murderers seems to range from 11 years in New Zealand up to eighteen-and-a-half years in the United States in those cases where parole is eventually possible. That is still lower than 25 years. Why would Canada want to have a higher benchmark than these other countries with which we so often compare ourselves?

Mr. Nicholson: Why is it 25 years as opposed to something else? That decision was made quite some time ago.

The Chair: Why take away the 15 years, which would seem to be roughly comparable with other countries?

Mr. Nicholson: People have shown me statistics, and it depends from state to state or whether you are comparing us with France. It is never apples to apples or oranges to oranges. We have to make the decision ourselves. I am absolutely convinced that the faint hope clause as it exists in Criminal Code legislation undermines people's confidence in the Canadian criminal justice system, and it revictimizes victims, and it should go. On that basis alone, we should move forward. I appreciate that they may have a different experience in New Zealand and I wish them well, as well as other jurisdictions, but we have to make decisions on our own in Canada, and I think this is a reasonable one.

The Chair: Just for your information, in England and Wales, which are not soft-on-crime jurisdictions, it is 13.7 years.

Mr. Nicholson: That may be second degree murder or manslaughter. Sometimes you try to parse these things, but we are talking for the most part here about premeditated, first degree murder. We made the decision, not my government, but previous to us some time ago, that 25 years was appropriate before parole eligibility.

Senator Baker: Minister, some of the states in the United States have life sentences without parole.

Mr. Nicholson: That is my point. They have the death penalty in some of these states. It depends on how you look at it.

Senator Baker: My question to you follows from Senator Runciman's. I can tell what Senator Runciman was thinking about when he asked the question. I looked at it after he asked the question, and I asked myself why the International Transfer of Offenders Act, section 24(1), could not reflect the reality of this new bill. To understand my question, it only covers first degree murder after the provision is passed. The fact is that persons who are convicted of second degree murder frequently receive sentences of 22, 23 or 24 years before they are eligible for parole. In fact, they can receive a 25- year sentence just like a first degree murder. Senator Runciman was looking at that and wondering why this will only apply to first degree murder when your bill, which applies to Canada, does not say anything about first degree murder at all. It takes away that 15-year provision, which covers persons who are convicted of second degree murder and first degree murder who receive sentences and the determination is that they are not eligible for parole from 15 years up to 25 years.

Am I reading this incorrectly? I listened to your answer carefully, minister, and you said that we try to, as much as possible, reflect the law in Canada. Is that in fact an admission that, if a murder were conducted in the United States by a Canadian citizen, they would be eligible for parole if they returned to Canada long before they would if that person had committed the murder in Canada?

Mr. Nicholson: Perhaps you are suggesting that we increase or make changes in the International Transfer of Offenders Act, and that would be very interesting, Senator Baker, but I will ask Mr. Giokas to look at that and give some further details.

The Chair: In that case, because your time with us is short and precious, I will ask him to come back to that after you leave, minister.

Senator Carstairs: One of the marks of successful rehabilitation is that someone does not reoffend. This is my second time around in this Senate chamber with respect to this particular bill because I was chair of the committee for the changes in 1997. At that particular point in time, we were told that not a single person who had been given a faint- hope-clause release had ever committed another murder. What is the situation today?

Mr. Nicholson: Again, I have statistics that I may be able to leave with you, that yes, some of these individuals have been incarcerated subsequent, but I will leave that with you. I have emphasized throughout that it is the victims of these individuals who are our primary concern on this, and I do not want them to be revictimized, and this is one of the reasons we are coming forward with this legislation.

Senator Carstairs: Minister, they have been reincarcerated, but not for murder.

Mr. Nicholson: You may think that is okay, but if they are being reincarcerated for other crimes, I consider that a serious matter. I do not want these individuals who are released victimizing people again in the community. You can say it is not first degree murder, but there are other serious crimes within the Criminal Code, and we can all agree to differ.

Senator Carstairs: We all know that, when someone is released on parole, they are released on parole conditions. Those parole conditions may be you cannot be in a certain area of a city, you may not be in a bar, you may not drive an automobile, you may not do many things. If they violate that parole — because remember there is a life sentence — they can be reincarcerated, so surely when we look at rehabilitation we must look to see whether it has been successful in terms of the kinds of criminal acts that led to their imprisonment in the first instance.

Mr. Nicholson: We are talking murder, senator. This is the most serious crime within the Criminal Code. Many individuals, including myself, have a problem with the possibility that these individuals are back on the street after 15 years, and that is consistent with what victims have told me across this country. Now, you may disagree or your party may disagree on this, and that is the democratic process that we have, but we are on the right track here in ensuring we reduce victimization.

As in the case Senator Runciman talked about, some people never give up and have this determination to continue to torture these innocent individuals and families who have been victimized by them, but again I have to agree to disagree.

Senator Carstairs: In terms of the applications of the Clifford Olsons of this world — because he at one point, I understand, did make a faint hope clause application — he was rejected by the judge. It never got to the jury, never got to the position where the families would be victimized in any way, shape or form. This is not a simple yes or no process. It goes through a series of steps

Mr. Nicholson: I invite you to ask the families who were vicitimized by Clifford Olson to come here and tell you their story and ask them how they felt when they heard that an application was being made after 15 years. I guarantee that you will hear what I have heard from them, that this was a terrible experience for them to have to go through again.

Senator Carstairs: They are going to have to go through it eventually, sadly to say, after 25 years.

Mr. Nicholson: Exactly, yes. I hear you.

Senator Carstairs: It is a sad factor that they will have to go through it.

Mr. Nicholson: However, they will not have to do it at 15, 17, 19, 21 and 23 years, and every victim's group I talked to told me that would be a great step in the right direction.

The Chair: We have 90 seconds left and Senator Boisvenu has a supplementary question.


Senator Boisvenu: Our justice system bases a sentence on the severity of the crime committed. After the sentence is handed down, the rehabilitation process begins. A two-tier debate has been generated on this issue. One side is all for allowing criminals to rehabilitate as much as possible — and I am on this side of the debate—and the other side is in favour of sentences that reflect the severity of the crimes committed. Is putting emphasis on rehabilitation instead of on the sentence giving criminals' rights precedence over victims' rights?


Mr. Nicholson: Senator, very few people are more articulate than you. Thank you for all you have done and continue to do in this area.

The Chair: Thank you, minister.

Colleagues, we will suspend to allow the minister to return to the house for his vote. Mr. Minister, you were very helpful, as always.

Mr. Nicholson: Thank you very much.

The Chair: Mr. Goikas and Ms. Kane will remain with us for another half hour.

Mr. Goikas, you had a question to answer from Senator Baker to the minister. Senator Baker, would you repeat the question, please.

Senator Baker: Yes. As Senator Runciman noted to us, when you look at this bill, you see very clearly that there is only one mention in the bill of first degree murder as it relates to the 15-year provision. The 15-year provision is triggered by either a first degree murder or second degree murder conviction in which the sentence handed down is beyond the 15 years for the period at which they can apply for parole.

If someone is convicted of second degree murder, it can be up to 25 years and, of course, first degree murder starts at 25 years. When you look at this international provision, it says that if you commit first degree murder outside the country, the 15 years no longer applies — it is 25 years — but it remains silent about someone who has committed second degree murder outside the country and is returning to serve their sentence in Canada. The way it reads there, when you look at it, is someone convicted of second degree murder outside the country will have to serve 10 years when they return to Canada, on a plain reading of that section in this bill.

I would suggest to the official, since the minister qualified his answer to Senator Runciman by saying, ``we try to remain within international agreements'' that, if it is as it reads, then there is a real problem.

John Giokas, Counsel, Criminal Law Policy Section, Department of Justice Canada: Senator, I believe you are suggesting the problem was with the International Transfer of Offenders Act as opposed to the Criminal Code.

Senator Baker: Yes.

Mr. Giokas: It is my understanding that the International Transfer of Offenders Act does attempt to balance domestic sentences with sentences imposed abroad, and you are quite right — the 10 years mentioned in the body of section 24 refers to what we would call second degree murder. You will note that we are bringing an amendment to change the requirement for first degree murder, a parole eligibility date from 15 to 25 to bring it into accordance with the amendments we are proposing in Bill S-6.

Other countries do not necessarily have the same distinction between first degree and second degree murder that we have in Canada. That has existed in Canada since 1976, and reflects the capital and non-capital murder distinctions that date from 1961. In other countries, because they do not necessarily have the same distinctions we have and do not have the same criteria necessarily to aggravate a murder to what we would call a first degree murder, the International Transfer of Offenders Act refers to the baseline criterion for second degree murder in Canada, which is 10 years.

Senator Baker: Yes.

Mr. Giokas: The 15 years refers to first degree murder. There is a principle in the International Transfer of Offenders Act that we may not aggravate a sentence that has been imposed abroad. In other words, when someone comes back to Canada, the sentence they serve in Canada may not be more severe than the sentence that was imposed abroad. It is one of the conditions of the treaties and agreements we have with the countries that are parties to the treaties reflected in this act. That is why we have minimums here: 10, 15 and now 25. It is because of this non-aggravation factor.

I am not an expert in the International Transfer of Offenders Act. I have told you what I know in terms of how our bill and the International Transfer of Offenders Act interact. If you have more detailed questions about the nature, origins and impact of that act, could I suggest that, when those amendments come before the Senate, you pose those questions at that time?

Have I answered your question, senator?

Senator Baker: I think you have because that is the way it reads. I rather suspect that is why Senator Runciman asked the question. When I read it, I looked at it and thought this was interesting because most second degree murder convictions that are very serious in nature, the chances of parole are usually run from 20 years to 24 years with a norm of 22, as I read the case law.

It just means that you would end up not being eligible for parole with passage of the bill if you had committed the murder in Canada. If you committed second degree murder in certain circumstances, you would end up not qualifying for making an application for parole for 22 years. However, if the same murder had been committed in the United States, you would be eligible for parole after 10 years.

However, then the person has to apply to the minister, as was pointed out, for re-entry. Then the National Parole Board takes over as far as the adjudication is concerned, as I understand it.

However, it certainly is something that I did not notice until Senator Runciman referred us to it. It certainly is a problematic area, and I imagine it will be problematic because of what this bill attempts to do.

Senator Runciman: Probably a good reason not to bring them back.

Senator Baker: A great many have been refused, as I read the case law.


Senator Boisvenu: I just want some clarity. I have met many families who were affected by a second-degree murder. We know that there is a difference between first-degree and second-degree murder. In the case of second-degree murder, is it true that criminals are eligible for temporary release on weekends after serving a third of their sentence? Is it also true that an individual convicted of second-degree murder is eligible for parole after serving half of the sentence? Criminals are treated differently depending on whether they committed first- or second-degree murder, and the parole eligibility period is not the same. Are you aware of this fact?

Mr. Giokas: I am not sure I understand what you are asking. Regardless of the person in question, if they have committed second-degree murder, they have to wait at least 10 years before being eligible to apply for parole.

Senator Boisvenu: Would you be surprised if I told you that, in a murder case in Magog, the criminal, who received a 10-year sentence, was allowed to go out on what is called escorted passes four years after being incarcerated?

Mr. Giokas: I would be tremendously surprised because the Criminal Code should take precedence. If the Criminal Code states that applications can be made only after 10 years, then that is what it should be.

Senator Boisvenu: Does the prison warden's jurisdiction extend beyond the Criminal Code?

The Chair: This would be a good question to ask the representatives of correctional services.

Senator Boisvenu: Yes indeed.


Senator Carstairs: I would like to return to the statistics we were discussing with the minister. I want to make it clear that these statistics refer in other countries only to first degree murder. They do not refer to second degree murder. Therefore, we are comparing apples and apples and not apples and oranges.

New Zealand has made one change recently; they have gone from a seven-year eligibility up to a ten-year eligibility for parole and that has increased their numbers slightly from 11 to 12.1. However, Scotland is 11.2, Sweden 12, Belgium 12.7 and Australia 14.8.

Why is it that we seem to have such heinous criminals in this country that they cannot be rehabilitated and need to serve 25 years?

Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I believe the minister answered the question. The reality is that the current sentence in the Criminal Code for murder is a life sentence with eligibility of parole at 25 years. We are only discussing now in Bill S-6 that early window of opportunity to apply for parole before the 25-year mark. At the moment, we are not exploring the overall parole eligibility period for first degree murder, which remains at 25 years.

Senator Carstairs: In terms of the persons who have been granted faint hope, first, do you have a statistic of the number of people who have been given faint-hope-clause release and earned early parole as a result of those provisions since 1976? As you have correctly stated, it is a life sentence. It is only a parole they receive.

Mr. Giokas: Yes, we do.

Senator Carstairs: What are the numbers?

Mr. Giokas: As the minister stated, he was prepared to leave these documents with you. This is information provided to us by the National Parole Board. Since the first application in 1987, there have been 276 applications, 178 decisions made, and reductions have been granted in 146 of the applications. The parole board has granted parole in 134 of those cases.

To come back to what the minister was saying, the statistics we have show that no one released on parole has committed another murder.

Senator Carstairs: Presumably rehabilitation has worked. Can one interpret that from those statistics?

Mr. Giokas: I am not in a position to say whether rehabilitation has worked, senator.

Senator Carstairs: Yet the reality is they have not committed another murder.

Mr. Giokas: No, they have not committed another murder. However, as the minister stated, there have been some who have committed other crimes. I do not have those statistics before me now, though can I get them. Certainly, the National Parole Board will have them.

Senator Carstairs: We need to differentiate between whether they have committed a crime or have violated their parole. That is a distinct difference. I hope the National Parole Board will be before us.

Mr. Giokas: My information here is that, of the 134 who received parole, four were deported, three have been temporarily detained, 11 have been returned to custody, 13 people have died, and there is one offender who is out on bail.

The Chair: So 11 have been returned to custody, is that right?

Mr. Giokas: That is my information.

The Chair: Could I explore some of the elements of this situation in connection with victims? The way the system now works, a murderer has the right after 15 years to apply to a judge to seek permission to apply to another judge and a jury, seeking permission from them, to apply to the National Parole Board to seek parole; you have the right to apply for the right to apply for the right to apply.

How long does the process take, on average, from the time the offender submits the application for the first round through to a decision from the parole board, if he makes it through that series of screens?

Also, how many times do victims' families have the right to make representations, and how many times are they expected to make representations? Do you know that?

Ms. Kane: The length of time it takes varies case by case. When the applicant brings their application, they are sometimes eligible but they go well beyond the 15 years before they bring their application —

The Chair: I am talking about from the time the first application goes in.

Ms. Kane: It will vary. When officials appear from the Correctional Service of Canada or the National Parole Board, Correctional Service of Canada will probably be better positioned to indicate how long those processes take.

It will also depend on what court they bring them to and how busy that particular court is — whether they are bringing the application in Ontario or in another province. It will vary.

I am not able to tell you how long it would take from the beginning of that application process to the National Parole Board hearing being scheduled.

With respect to where the victims have a role, changes were made to the common law and in the Criminal Code over the last several years. At the present time, where the victim has a role to play is at the hearing.

When the screening process has been done and there is a determination that the jury will be empanelled to hear the faint hope application, the victims' families — and it is defined in the Criminal Code who that includes because the victim is unfortunately deceased — have an opportunity to bring what is analogous to a victim impact statement at that point in time. That can talk to the harm they have suffered, both at the time of the original offence and in the intervening years.

It is up to them whether they want to make that submission. There is no obligation on their part to do so. Many victims have told us, because we have had many consultations with victims, that they feel they must do so; it is part of the process and they are standing up for their family member who they have lost. However, they do not have an obligation to do so.

They can do did in writing. They also have an opportunity to make oral submissions, but there are some circumstances where that is not permitted. They are also then entitled to make submissions at the actual National Parole Board hearing if the application is successful. Again, they can do so in writing and, with agreement, can make oral submissions to the National Parole Board. That information, in both cases, is provided to the offender in advance so they know what the victim has to say, what information will be taken into account.

I should also add that, at the stage of the victim's involvement at the court proceedings, there is a fund at the Department of Justice that assists those victims to attend that proceeding and also to attend the National Parole Board hearings. They can get financial assistance so they can travel, because it is often not in their home area where those proceedings take place.

The Chair: Are there national standards for things like time, when you get to make an impact statement and what kind of statement you can make, or are these left to individual provinces that administer justice?

Ms. Kane: The victims' services groups that exist in each province will assist the victims with their submissions. When it gets to the National Parole Board stage, there are victim coordinators, employed by the National Parole Board and others with the Correctional Service of Canada, who will provide that assistance to the victims if they are not receiving it from another agency. We are also aware there are non-governmental organizations that do provide some assistance to victims and may sometimes attend with them for moral support as well.

The Chair: I have a horrible feeling that, if I was a member of a victim's family, I would feel I was facing a bureaucratic thicket here that I would not really understand, but I may be wrong about that.

Ms. Kane: We have had very good feedback from victims of crime who have gone through these processes after all this assistance has been put in place. Obviously, they do not want to be there; they would like to turn back time. However, given that they are in that difficult situation, the evaluations of the programs that are in place now have been very positive in terms of the assistance provided to victims to get through that process — to receive the information to know what is going on and to get the feedback on what decisions have been by the courts and by the parole board.

Senator Baker: That was a very good answer to the question, Ms. Kane.

When you remove the faint hope clause, the person so affected will have a right to apply for the same thing in two different ways. One would be through the courts, as Mr. Latimer did, and the other way would be under section 749, which is in the same section of the Criminal Code that we are talking about.

I do know that there are, each year, some applications to the federal minister and then a reference to the National Parole Board. Do the witnesses know how many you have had even without this bill; how many applications have been made directly to the cabinet under section 749? Would you have those numbers?

Ms. Kane: No, I am sorry, senator, we do not have those numbers because that process is administered by the National Parole Board. When the officials appear, they may be able to answer that, or we could undertake to inquire on your behalf and get that information for you.

Senator Baker: I suggest, Madam Chair, regarding Senator Boisvenu's question that comes under the Corrections and Conditional Release Act, section 107 — this release prior to eligibility, day parole and so on — that perhaps we should have some witnesses who administer that particular act, because he is absolutely correct we should have some explanation on that.

The Chair: We will see what we can arrange.

Mr. Giokas: Madam Chair, could I go back and answer part of Senator Baker's earlier question that I left unanswered?

The Chair: About the international transfer? Yes.

Mr. Giokas: I went off into the second degree murder situation a bit too much, but I will take you back in time. Prior to 1976, for capital murder, you had to serve 10 years' parole ineligibility. That is what the 10 years refers to. After 1976, when first degree murder replaced capital murder and the faint hope clause came in, you could apply for eligibility to be eligible after 15 years, and that is reflected in subsection (a). Now in subsection (b), it is 25 years as a result of these amendments.

Senator Baker: For first degree murder?

Mr. Giokas: Yes. I apologize for going off into a discussion of second degree murder.

Senator Baker: You gave an excellent answer to that.

Mr. Giokas: Thank you.

The Chair: We always appreciate precision and clarity, so never apologize for that.

There being no further questions for the officials, I will thank them and proceed with our next witnesses.

Continuing our study of Bill S-6, An Act to amend the Criminal Code and another Act, we are delighted to have back before this committee another witness from whom we have previously heard on other matters, and always to our profit, Howard Sapers, Correctional Investigator of Canada. He is accompanied by Ivan Zinger, Executive Director and General Counsel at the Office of the Correctional Investigator.

Please proceed with your statement, Mr. Sapers.

Howard Sapers, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you, and it is a privilege to come back before this committee. If I sound a little out of breath, it is because we made our way here as quickly as we could.

We are here to provide the views of the Office of the Correctional Investigator on the impact of Bill S-6, the serious time for the most serious crime act. As the Correctional Investigator of Canada, I can speak to the likely impacts that this act would have on federal corrections. I will ask Mr. Zinger to discuss the role and mandate of the Office of the Correctional Investigator, and I will then address the faint hope clause and penalties for murder in the Canadian context. Mr. Zinger will address the likely impacts of this bill on aging and older offenders. To conclude, I will speak to the bill's impacts on correctional programming and motivation for long-term offenders, as well as frame this bill in the context of already enacted legislation and policy reforms.


Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: The Office of the Correctional Investigator was established in 1973 to function as an independent ombudsman for federally sentenced offenders. The Office is mandated under Part III of the Corrections and Conditional Release Act to conduct investigations into problems of offenders related to the decisions, recommendations, acts or omissions of the Correctional Service of Canada.

As an ombudsman, the Office of the Correctional Investigator is concerned with ensuring that human rights and human dignity are respected in federal corrections. The Office currently employs 28 staff, who, on average, respond to over 6,000 offender inquiries and complaints annually.


Mr. Sapers: As the committee may be aware, the average time served in prison for first degree murder in Canada is 28.4 years. By comparison, the average time served for the same sentence in New Zealand, Scotland, Sweden and Belgium is approximately 12 years. The time served in Canada is already greater than that in most other advanced democracies, including the United States, with the exception of a life sentence without any possibility for parole.

Offenders serving a life sentence in Canada automatically spend at least the first two years of their sentence at a maximum security institution, regardless of their assessed risk. In Canada, a life sentence does, in fact, mean life. Offenders with a life sentence released into the community are supervised until the time of their death.

Relative to many other countries that Canada often compares itself to, offenders convicted of first degree murder in this country are already serving a more punitive sentence.

The history of the faint hope clause, or the 15-year judicial review, is tied to the abolishment of capital punishment in Canada in 1976. Criminal law amendments at that time acknowledged that offenders have the capacity to change, to be rehabilitated and to become law-abiding citizens, even after the most serious transgressions. The faint hope clause was thus intended to motivate offenders serving long-term sentences, giving them the hope that their efforts to address the factors that contributed to their crime could be formally recognized, and further, that their efforts to reform could have a direct impact on their conditions of confinement and their potential reintegration. The 15-year judicial review is only concerned with the amount of time that an offender is ineligible to apply for parole. It does not guarantee that the offender will be granted parole. In fact, less than 150 offenders have ever had their parole ineligibility period reduced since the first judicial review hearing in 1987.

Senators may be interested to know that the average age of an offender on admission to federal custody is 33 years. If enacted, Bill S-6 would impose an automatic parole ineligibility period of 25 years for offenders sentenced to life imprisonment for murder in the first or second degrees. Approximately 19 per cent of offenders — or 4,300 — under federal sentence today, including those who are supervised in the community, are serving life sentences. These offenders will likely become elderly or older before they are even considered eligible to apply for parole.

In this respect, my office is particularly concerned with the impact of this bill on the older offender population. Older offenders have been historically defined by the Correctional Service of Canada as being 50 years old and older. Mr. Zinger will explain later why the cut-off of 50 years is used in correctional settings to define elderly or older offenders.

Today, the percentage of older offenders among the prison population is about 18 per cent — that is, of those in custody — or about 2,400 federal inmates, 351 of whom are 65 years old or older. The older offender population includes a cross-section of inmates, including those identified as being of special interest to my office, such as federally sentenced women, offenders of Aboriginal origin and offenders with mental health concerns. Since 2005, there has been a 23-per-cent increase in the number of older offenders in federal custody.


M. Zinger: Consistent with the overall ``greying'' of the Canadian adult population, the number of older offenders in federal custody continues to grow annually. A ``greying'' inmate population presents an array of demands and needs, substantially different from those of the general population.

Some of the challenges that the Service faces in the management of older offenders is exemplified in the profile of Warkworth Institution, a medium-security penitentiary in the Ontario region. Recent data indicates that 21 per cent of offenders in this institution are over the age of 50. On any given day, there are between 15 and 20 offenders who experience major ambulatory issues and have to use a wheelchair, walker or cane. These offenders are often unable to participate in routine activities, such as outdoor recreation, programming and meals in common areas, due to the physical design and infrastructure of the institution.

Health problems are prevalent in the older offender population, and several inmates will require palliative care as a result of ongoing illness.

Currently, there is only one psychologist on staff caring for close to 600 inmates. The offender population over 50 years of age is not a healthy one.

Their lifestyles prior to incarceration typically include chronic substance abuse, homelessness, poor diets or serious mental health issues, which, when combined, take their toll on physical health.

The treatment of chronic diseases within corrections, including cancer, emphysema, diabetes, cardiovascular diseases, Hepatitis C, and HIV/AIDS, is becoming more of an issue.

The service already has a $190-million annual health care budget. Offenders serving a life sentence for first-degree murder are currently ineligible for conditional release on compassionate grounds, that is, release of terminally ill offenders into the community so that they can die closer to family.

They are eligible for escorted temporary absences on compassionate grounds, but only three years prior to completion of their parole ineligibility. The current criteria remain extremely restrictive for this type of release.

Ill offenders serving life sentences are dying in prison, sometimes in very tragic and less than dignified conditions. They are afforded no opportunity to spend palliative time with the support of family and friends.

As Mr. Sapers has mentioned in his remarks, the design and infrastructure of a typical federal penitentiary do not consider the aging and elderly offender. Physical ambulation and accessibility, independent care and living ability, palliative care, employment and vocational programming for older offenders are all concerns that should be considered in relation to this bill.

It is important that we consider the impacts of Bill S-6 on the diverse needs of an aging offender population. The challenges presented here are not new; the costs and needs associated with aging with dignity in a federal penitentiary will only increase in the years to come.


Mr. Sapers: I would like to shift attention to a trend in corrections that the Office of the Correctional Investigator monitors on an ongoing basis: access to correctional programs. At intake assessment, the correctional needs of individual offenders are documented and appropriate correctional programming is assigned. The service faces a variety of pressures around programming, not the least of which deal with ensuring access and availability of programs, as well as ensuring correctional program completion prior to parole eligibility dates.

There are program waiting lists, delays in necessary assessments required for program participation, and capacity issues related to educational preparation prior to program entry. Increasingly, offenders only receive correctional programming near the end of their sentence, and priority is given to those near or already beyond their parole eligibility dates.

Bill S-6 will increase the period of time that long-term offenders will wait before receiving correctional programming. Based on the 25-year parole ineligibility period, the service would have an additional 10 years before offenders serving life sentences would be prioritized for correctional programming. This ultimately means that long- term offenders, in the absence of meaningful work opportunities or vocational training, would remain relatively disengaged from their correctional plan for much of their sentence. Extended periods of idle time will most definitely impact on motivation levels for long-term offenders, especially as they age in custody and as their health invariably deteriorates.

Under the Correctional Service of Canada's transformation agenda, programs and interventions are intended to emphasize vocational training and employment readiness. The transformation agenda, while recognizing that the vast majority of offenders are serving shorter sentences, does not address the needs of long-term offenders who, in all likelihood, will be approaching retirement age at the time they are given access to programs and are released into the community.

What meaningful role will programming and vocational training play for these offenders? It is impossible to assess the impact of Bill S-6 without also considering the context in which this bill is proposed, and the impact it will have in conjunction with already enacted and proposed legislation. There has been significant activity in the area of criminal law and sentencing reform in the past few years. Recently enacted legislation will result in significant increases in the offender population and in the number of offenders serving longer sentences.

I have previously spoken on the likely impacts that these measures will have on the rate, cost, length and distribution of incarceration. Almost certainly, the cumulative effect of legislative and policy reform will have disproportionate impacts on Canada's most vulnerable populations, including Aboriginal peoples, those with addictions, substance abuse problems and the mentally ill.

The costs and impacts of Bill S-6 must be considered in the context of recent changes to our criminal justice system. These costs will be incurred for several years, and decisions made today will end up being very expensive into the future. Using today's numbers, each additional year of incarceration in a medium security institution, such as Warkworth, will cost $87,498 compared to $24,825 if that offender was to be supervised in the community.

In conclusion, repealing the faint hope clause will have significant impacts on the offender population. The `graying' of the prison population already places tremendous pressure on the service to accommodate the needs of long-serving offenders. The service will have to address limitations in its physical infrastructure as well as meeting increasing demands on health and palliative care.

In terms of correctional interventions, the service will have an additional challenge to motivate long-term offenders throughout their entire 25-year sentence. Current program and intervention models focusing on employment readiness simply do not address the needs of long-serving offenders approaching retirement age.

There are issues regarding the cumulative costs and impacts of this bill when considered in the context of other recent criminal justice initiatives. We need to strike an appropriate balance between measures that are designed to incapacitate and deter against other equally important principles of reintegration and reform.

Thank you for inviting my office to appear before this committee. I know that the issues we have raised will be carefully examined and we welcome your questions.

The Chair: Thank you for your presentation. We will begin our questioning with Senator Wallace.

Senator Wallace: Thank you for your presentation, gentlemen.

Mr. Sapers, as you point out, and obviously, not surprising considering the important role you play, your concern is that with the offender population and with the rights and conditions that affect offenders. That is obviously important and we are thankful for the work you do.

As you allude to, one of the principles in sentencing, of course, is rehabilitation. It certainly is one of the objectives of sentencing.

As you are aware, the Criminal Code does set out the purpose and principles of sentencing and the objectives of sentencing, what is to be achieved through sentencing. Certainly, rehabilitation is one of those factors, but it is only one of six. I will quickly summarize the principles found in section 718. The others involve denunciation of unlawful conduct, deterring offenders, separating offenders from society, providing reparations to victims, promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims, and of course, rehabilitation.

I point that out because we have had you appear before us in respect of other bills, and we get involved in these issues of trying to weigh the benefits of protecting society and at the same time protecting the rights of offenders. The emphasis on the offenders' rights and the legitimate need to rehabilitate seems to be the overwhelming discussion that takes place, yet it is only one factor and one of the objectives in the sentencing and I think it is important to remember that.

In considering the impact of Bill S-6, I suggest to you that we cannot look at the rehabilitation of offenders as the only focus, or perhaps even the most significant focus. I am sure you would agree with this. Rather, we cannot forget the importance, again, that the focus of sentencing is to provide protection to society. There are three other key issues: The denunciation of unlawful conduct, the deterrence of future offences, and the separation of offenders from society in order to protect them.

Do you accept that this weighing of objectives is important? I certainly understand the perspective you have on this from the perspective of offenders, but do you appreciate the dilemma that legislators have in trying to find this balance?

Mr. Sapers: I will try to be brief in my response because there is a tremendous background in terms of the question.

In case I run out of time, I will simply say that the concern we are sharing today with you is not about a life sentence. The purpose of a sentence is clear; it is articulated well in the Criminal Code. The purpose of the correctional system is also articulated very well in the Corrections and Conditional Release Act.

We are not talking about the principles of sentencing; we are talking about the administration of the sentence once the court has legally imposed it. It is still a life sentence. We are talking about a period of ineligibility for parole consideration, which may be day parole or another form of conditional release.

I have no quibble with the necessity to balance principles. That is the job of the court when it imposes a sentence.

In the cases of first and second degree murder convictions, there is a mandatory minimum penalty. That was considered by Parliament in terms of those sentencing principles.

Our issue is not with whether or not a life sentence is properly denunciatory, properly deterrent or properly rehabilitative; the issue is really about the administration of the sentence and trying to balance those principles of sentencing with section 3 of the Corrections and Conditional Release Act, which talks about the purpose of corrections, which is about the eventual reintegration of offenders.

We do not give up hope on our offenders. My office is not particularly concerned with taking an offender's perspective; my office is particularly concerned with the rule of law and ensuring that law is applied in the administration of that sentence. In doing so, it provides an assurance to Canadians that their correctional service is doing what it is supposed to do.

Senator Wallace: I have another question, but with time moving I will let others proceed and I will go on the second round.


Senator Boisvenu: First, I must say that I was surprised by the tone of your presentation. When you talked about Canada's most vulnerable populations, it felt like you were speaking about social workers. I thought your job was to run the prison system and manage individuals who have committed terrible crimes. I should point out that first-degree murder is considered a terrible crime. I think that abused women and children are a group that is much more vulnerable than the one under your management. I just wanted to comment on this.

I have a question for you. You say that this bill may have a dire effect on your daily activities because of the aging offender population. Is population aging not a phenomenon we are also witnessing in our society? Since the aging of the population is a major concern in general, is it not normal that this kind of problem also has to be dealt with in prison?


Mr. Sapers: First, I will try to address your surprise, senator. The office the correctional investigator is separate from the Correctional Service of Canada and we are not charged with the responsibility for running the federal correctional system; that is the job of the Correctional Service of Canada.

My reference to a vulnerable population reflects the reality that many of the people we would see at risk in our communities across this country, in many cities, are reflected well in the imprisoned population.

Their needs and their difficulties are very real, as is their crime, of course. We are not making a value judgment about that. However, I think it is very clear that there is a clearly established pattern of vulnerable, socially disadvantaged people ending up in prison.

We have shared statistics with this committee before —


Senator Boisvenu: I would like you to answer my question. You say that this bill will affect the aging of the population. Is this situation not also an issue outside of prison walls and so must be dealt with by prison administrators as well?

The Chair: Please allow the gentleman to answer your question.


Mr. Sapers: Yes, I was coming to your point. We have shared statistics with this committee previously regarding the distribution of offenders — Aboriginal, people of colour, women, the mentally ill, et cetera. We have also talked about the age distribution. Recall that the average age at admission is 33. That does not tell you much. Crime is still considered to be a young person's game, so the correctional system is built and designed primarily around young men. Therefore, while the general society may be aging, the correctional system has not really kept up.

Therefore, we are saying there are some particular concerns that are related to aging in prisons, because prisons were not designed to deal with people who are of failing health, who need palliative care, or who have ambulatory difficulties.

The prison system is not a perfect reflection of society. There is a fairly distinct subpopulation. Life sentences and changes to sentencing have resulted in a growing — and it is now around 20 per cent — but a growing proportion of that population who are aging in prison. The services in prison have not caught up with that reality. We believe that Bill S-6 will accelerate that growth in that part of the population.


Senator Boisvenu: You talked about sentence length, which is, on average, 28 years. You also said that 25 per cent of the inmate population was suffering from mental health issues. Is this reality not turning our penitentiaries into long- term care centres for these types of criminals?


Mr. Sapers: Senator, I think I would agree with half of your conclusion. I think that prisons in Canada have become ``long-term housing,'' if I can use that word in a qualified way, for many people with mental health issues, but they have not become hospitals. They are not typically therapeutic.

The Correctional Service of Canada does have some designated psychiatric facilities, but by their own admission they have about half of the capacity they need to deal with people who are acutely mentally ill.

Senator Runciman: What role does your office play in assisting offenders pursue an application under the faint hope clause? Does your office have a role to play in that?

Mr. Sapers: None whatsoever.

Senator Runciman: I will move on to another area. I share your interest with respect to the aging population. It is an interest I have had for many years, and I have approached various governments at the federal level about this over the years. I support the initiatives contained within this legislation and I suggest that most Canadians do as well.

Is there not another approach to dealing with the aging population which may make financial sense, utilizing the numbers you provided in terms of the annual costs? I am talking about a stand-alone, chronic care facility, of which I gather there are a number in the United States; I do not know what the situation is in other jurisdictions. That is something I would certainly like you and your office to consider as well, to advocate perhaps another stream in terms of a way to address what will become an increasing challenge over the years.

I might as well put it on the record; I have been an advocate for the facility in Brockville run by the Royal Ottawa, where an arrangement with the Royal Ottawa and the provincial ministry of corrections established a 100-bed, secure treatment unit for the treatment of mentally —

The Chair: Senator Runciman, is that the Royal Ottawa Hospital?

Senator Runciman: Yes.

The Chair: For those of us not from these parts.

Senator Runciman: I am sorry, I apologize. The recidivism rates have really improved markedly with the treatment facility. You have the ministry of corrections providing the security, housed in a property owned or at least under the control of the Royal Ottawa health care group, which provides the health care services, so you have provincial ministries involved in this.

I have long been an advocate of looking at those kinds of partnerships. In fact, I approached a number of governments about utilizing those grounds as well for that kind of a facility on a pilot basis. It could treat perhaps the Warkworth folks, as an example, and measure it over a period of years — look at the health care impacts, et cetera.

I wanted to put that bee in your bonnet. This is something that I think has potential to help the system and, over the long term, reduce costs significantly for taxpayers in this country.

Mr. Sapers: Senator, you may be pleased to know that, for a few years now, my office has been recommending that the Correctional Service of Canada explore alternative arrangements in the provision of a range of health care services, including expanding contractual relationships with provincial health authorities. As you know, the law requires the Correctional Service of Canada to be the health care provider for federally sentenced inmates. Currently, the correctional service will spend about $190 million a year in fulfilling that mandate.

We think there are some benefits to exploring different and new partnerships, not just with elderly offenders but to meet the whole range of health needs. We would not take any issue with that whatsoever.

I will say, though, that the parole ineligibility period, which is at the heart of Bill S-6, may require a different way of thinking about housing even those offenders who are not ill and who do not require specialized health care, simply because of the population pressures that the Correctional Service of Canada will have. It is one thing to house a group of 25- or 35-year-olds together; it is something else to house a group of 55- to 65-year-olds together.

I can tell you, when I visit institutions now, that the older offenders are looking for some respite from the chaos, even the ones that are physically well. It is psychologically draining as well, so there are other needs in terms of managing that population.

Senator Runciman: In terms of the legislative requirement for the ministry to provide those health care needs at the moment, some change would have to occur.

Mr. Sapers: I would defer to the legislative authorities in the department, but as I understand it, the requirement is for the service to ensure that health care is provided to a professionally acceptable standard, so the debate is around make or buy. They may purchase the service or they may directly provide the service. I am not sure that it would require a legislative change.


Senator Carignan: I would like to make a point about the aging of the offender population. You said that 19 per cent of inmates were over 50 years of age. So, they are an older group. My colleague, Senator Boisvenu, pointed out that the general population was also aging, and that we, as a society, must also adapt to and face these challenges.

Are you aware of the fact that the offender population is much younger than the general population? Canadians over 50 years of age make up 41 per cent of the total population, so it is natural to have to adapt to this reality. However, the prison system's adaptation needs are minor, given the fact that its population is relatively young.


Mr. Sapers: The troubling issue for us is that, not so long ago, the Correctional Service of Canada had a commitment to dealing with older and elderly offenders; they had a task force unit that was responsible for looking at that. They no longer have that.

Since 2005, in last five years, there has been a 23 per cent increase in the number of offenders over age 50. You are absolutely right that there needs to be an adjustment, an accommodation. The service needs to change to reflect that reality.

The problem is that this service is still very much driven by where the majority of the demand is, and that is with younger offenders serving shorter sentences. As you can appreciate, if you have an offender who is serving a sentence of three or four years and you have that churn going through your system, that takes up a lot of your time — a lot of your program capacity, intake capacity, treatment capacity, et cetera. The older and more long-term offenders simply come in second in that kind of a contest.

There has been this growth and we have not seen the correctional service really catch up with the growth. They need to increase their capacity and responsiveness to aging offenders — and that is without the impact of Bill S-6.


Senator Carignan: I agree with you, but regarding this particular bill, you said that about 130 inmates have been released since 1987, so over a 23-year period. In the last two years, the number of new offenders serving a life sentence went from 174 to 162, a drop of 14 offenders in one year. One hundred and thirty inmates in 23 years — an average of six per year—is a fairly low number considering that Correctional Services manages 22,000 inmates daily.


Mr. Sapers: Senator, I am not sure whether I agree because I lost track of some your numbers. We are talking about a couple of different populations. In custody today, inside a federal penitentiary, there are about 13,100 men and women in custody. There are about another 8,500 or 9,000 being supervised in the community. That is how you get to a population under supervision of around 21,000 or 22,000. The impact that we are talking about is the impact inside the institution, so we are talking about the population of around 13,000 in the institution.

It is actually 150 offenders since 1987 that have had their period of parole ineligibility released. I do not have the finer breakdown to tell you how much that parole ineligibility period was reduced. It was reduced anywhere from a year to 10 years. There is a breakdown that I am sure Juristat can provide.

We are talking about a very slow attrition in terms of release, but a growth in terms of the proportion of the population inside that is getting older, so a 23 per cent increase in the last five years of those over 50 getting life sentences, and only perhaps three to five having their period of parole ineligibility per year decreased.

We also must remember that that statistic is a little misleading because people had to serve out that initial period of parole ineligibility since the law changed, so there was a lag time.


Senator Carignan: You said that there appears to be some dissatisfaction with the quality of health care. When I last spoke with my friend, who is a prison chaplain, he praised the array of services available to inmates. In addition, the statistics indicate that only 14 per cent of all complaints lodged were related to health issues. Do you not believe that the health services provided have some merit, since they account for only 14 per cent of all the complaints you process?


Mr. Sapers: The 14 per cent represents our highest category. It is the number one, and enduringly so, area of complaint. A wide array of issues are brought to my office's attention, so no one particular area tends to dominate, but health care is the number one. Just for one example, one difficulty in dealing with health care is that, if an inmate is concerned with the quality of services provided by a physician, my office cannot directly investigate the quality of the physician's service. We can investigate the quality of the process of getting that inmate into that doctor's office, but as far as the quality of what the doctor did, the College of Physicians and Surgeons looks after that. Most colleges of physicians and surgeons will require, on an ethical base, that if a complaint is made against them by a patient, then they have to cease being that patient's physician. If you are in a prison and you are the only doctor in the prison and the inmate wants to bring a complaint and says, ``I do not think this doctor is performing professionally,'' you perhaps lose your access to health care. It is a challenging issue in terms of the provision of health care but also policing the quality of health care inside services.

The Correctional Service of Canada has put a lot of resources and effort into quality assurance and having a process of ensuring that there is, as you call it, a basket of services available. However, I can tell you that when we look at things like deaths in custody from natural cause, often one of the issues has to do with the quality of service, the timeliness of access to service, the information sharing between the institutional-based health service and the community hospitals, et cetera. Health care in prison is a complex thing. That is not to say that the correctional service does a bad job. It is just to say it is very complex and does raise many concerns.


Senator Carignan: We need to compare these statistics with those for the general population, where the number of complaints is high.

The Chair: Thank you very much, Senator Carignan.


The Chair: Mr. Sapers, there are still five senators wanting to ask you questions, and I have to remind senators that we have more witnesses coming after this. Brevity is the soul of not just wit but many other things as well.


Mr. Zinger: I would like to quickly add something to Mr. Sapers' answer, if that is okay.

Each year, 600 to 700 complaints pertain to health issues. However, our statistics are hiding an important fact: about 50 of those complaints are related to mental health issues. When our investigators look into other types of complaints—for instance, an inmate transferred from a medium-security penitentiary complaining about being sent to a maximum-security penitentiary, where he was placed in administrative segregation or where excessive force was used on him—they realize, after doing an investigation, that the complaint was categorized, for instance, as administrative segregation. However, it becomes obvious that what gave rise to the complaint were mental health symptoms and issues. This established fact greatly affects our numbers.


Senator Carstairs: Thank you both for appearing. Mr. Sapers, you were instrumental in our study on aging, and many of these issues came up. It is important to deal with the issue of why correctional institutions have chosen the age of 50 as opposed to 65, which is what we generally consider to be the aging population in Canada.

Mr. Zinger: If you actually visit a penitentiary and look at the health records of those who are 50 and over, you will realize that they are actually in terrible physical health. For example, in the offender population, about 30 per cent has hepatitis C. The level of offenders who have diabetes is extremely high, especially among the 20 per cent of the segment of the population from Aboriginal background. We have rates that are absolutely unheard of compared to the general population in terms of AIDS and HIV. About 40 per cent of the inmate population take some sort of psychotropic drugs. Age 50 in a penitentiary probably looks much more like 65 or 70 in terms of health care and in terms of health condition, physical condition. That is why the Correctional Service of Canada put the age of an aging offender at 50.

They recognize and study the issue and we are using their cut-off which we believe is certainly appropriate, considering their overall health.

Senator Carstairs: Thank you. In line with this particular bill, it would appear to me that many of those people who will be applying for faint hope, because they have already served a minimum of 15 years, will generally be within that aging population.

I know from work you presented to me in the past that many of the needs of these inmate populations are not well met, sometimes through the basic need of supplies — a wheelchair, a walker. You mentioned the issues of their fear of other inmates because they are incapacitated physically, as well as mentally, but certainly physically. Would this population, in your view, often be better served, therefore, by being eligible for earlier parole and being released into the community?

Mr. Sapers: You may know that I spent part of my career as a member of the National Parole Board making conditional release decisions, and I can tell you the parole board does a good job of making its decisions risk-based. It is about the risk of reoffending and the potential for safe and manageable risk in the community.

If we were not talking about this bill and were just having a general discussion about the benefits of conditional release, I would say that conditional release in general has served Canada very well, that supervised, gradual release into the community has proven to be an effective way to protect the public.

To answer your question specifically about Bill S-6, I would say that, if we believe conditional release still makes sense, that gradual, supervised, risk-based release is still our goal, then you would want to see that applied to the entire range of offenders. You would want to have the least number of impediments to that safe and timely and appropriate supervised release because that is what we believe still to be the best kind of corrections, the best practice in corrections.

Senator Baker: I do not think I have really anything to ask the witnesses except to congratulate them on the excellent job they are doing. I was going to ask them about certain specific things, but I do not think it is within their purview. I was going to ask them, for example, how the ending of prison farms would affect the prisoners. The 90 days in this bill to apply for those persons who have been in prison for 15 years — if they have ever seen an application, what it looks like and how you can do it in 90 days, and how the provisions of this bill affect people presently in prison serving a sentence.

Did you want to comment on any of that or is that outside of your territory? I think it is probably outside, so I will pass.

Senator Angus: Much of what I would like to ask the witnesses has been covered. I have only been here on one occasion when you testified about the role of the ombudsman-type operation you are engaged in. First of all, and I guess either of you can answer, is there regular, ongoing communication and discussion between you — I realize you are independent officers — and the correctional service and the people who run it?

Mr. Sapers: Absolutely. The success of our office depends on it. A relationship happens at the institutional level, the regional level and the national level. My investigative staff spend, perhaps cumulatively, 300 days inside the various penitentiaries across the country, so they work daily with correctional managers, wardens, deputy wardens and correctional officers. My managers have a direct relationship with the regional managers. I would say that we are in constant dialogue with the Correctional Service of Canada.

Senator Angus: You made the point that outside the correctional world, if I can use that expression, society is making the necessary adjustments as the population ages and as it has different infirmities and illnesses and adapts to same, whereas I think your point was that the prison system has not been making these adjustments to keep up with the aging of the prison population.

I did not understand you to say they are not doing anything. Is that fair?

Mr. Sapers: That is fair.

Senator Angus: You are just saying they are not keeping up at the same pace? Is that fair? Because I understand there are quite a number of steps that have been taken, at great expense, by the Correctional Service of Canada to accommodate, to put in for disabled people the appropriate adaptations, stairways, steps, wheelchairs. The health issue is one thing. We realize it is a problem for everyone but I understand they do their best.

Mr. Sapers: Senator, absolutely. I would be misleading you if what you heard me say is that the Correctional Service of Canada is doing nothing.

Senator Angus: I understand they are doing a substantial number of things.

Mr. Sapers: Beauty is always in the eye of the beholder. The Correctional Service of Canada has examples of best practice where they have peer support programs, where they have retrofitted certain cells for those with ambulatory problems. They have put some special initiatives into dealing with offenders with age-related cognitive impairment. There are some examples of best and good practice, but they are examples, and they are typically not well funded. They are typically not ongoing or long-term, and they are very idiosyncratic to a particular location or management team.

We have been making recommendations to the service, as I say, over the last number of years about, frankly, stepping up their game and recognizing this challenge.

Senator Angus: They are cooperative with you even though they may not have the resources?

Mr. Sapers: Senator, that is exactly it. As I said before, when all of your pressure is coming from this direction of dealing with the churn of the younger, shorter-term offenders going through, sometimes it is hard to pay attention to these issues when you may have the sense that this can wait; this is not a crisis.

Senator Angus: Priority. I know it is the same thing in government-owned hospitals that are aging.

I have the sense that you are not wildly enthusiastic about Bill S-6. Would that be fair? The thing that troubled me was on page 7 of your opening statement where you make allusion to recently enacted legislation that will result in significant increases in the offender population and in the number of offenders serving longer sentences, and so forth. In other words, saying there are deficiencies in dealing with the aged and the infirm in the present situation. If you add 10 years on, unless other resources are made available, this will just aggravate the current problem. Is that a reasonable ground for being critical of the legislation?

Mr. Sapers: Senator, the policy issue is beyond my authority.

Senator Angus: I hoped you would say that.

Mr. Sapers: I hope to share with the committee, and for your consideration, is if the policy becomes law it will have some impact. The correctional service is under duress. The correctional service is under duress in meeting its mandate with the current legal and policy framework. When that policy and legal framework change to create the circumstances where more individuals will be serving longer periods of time inside, that degree of duress will become more acute.

Senator Angus: If I could put words in your mouth which are modestly inappropriate, there could be unintended consequences. The bill is brought in for a particular policy reason, as explained earlier by Minister Nicholson, but it could have these negative consequences which are really not related to the reasons for the act.

Mr. Sapers: I read the legislative summary. I think I understand the purpose —

Senator Angus: By reading the headlines in the newspapers, yes.

Senator Lang: I would like to speak on two aspects. I want to follow up on Senator Angus' question. Also, I want to get on the record my understanding that any federal new building being built or retrofitted, including prisons, must meet the current building code. Subsequently, the question of disability and various other elements that are required under the federal building code must be followed. Is that not correct? I want that clarified for the record.

Mr. Sapers: I would not argue with you in terms of the requirements to follow building codes. However, we are not talking about replacing the entire prison estate with new construction.

Senator Lang: I understand.

Mr. Sapers: I am not sure what the short-term, or even the medium-term, plans are for brand new construction. I have seen plans for lots of renovation of some of the older parts of the current prison estate. Some of these buildings, as you know, are 40 years old and some are considerably older than that.

If we are talking about brand new construction and we could design from the ground up, I think perhaps we would be having a different discussion. However, I do not think that is what the Correctional Service of Canada is contemplating.

Senator Lang: I would like to make this point: The information I have is that, and that the correctional institute is doing everything it can to accommodate wheelchair entry, as you mentioned; plumbing retrofits for people with disabilities; access issues; and that type of thing, where possible. Some of that is probably from your office, and due to your recommendations.

Mr. Sapers: I think you are right, senator. It is ``where possible.''

May a take a moment to put that in context? Matsqui Institution is a medium-security institution in the Pacific region of the country. It houses somewhere around 500 or 600 inmates, typically. Several of the wings of that institution were built with dry cells — there is no running water or toilets in the cells.

Simply retrofitting those cells to bring them up to what we would consider to be decent modern standards for a correctional facility — putting plumbing in those cells — is taking years. I think the last cost estimate I saw was around $11 million. That is just in one institution, just to put regular plumbing in cells, never mind any renovations dealing with special needs.

Senator Lang: I would like to go to another area, namely, the question of the implications of the legislation before us. The information we have been provided with is that, since 1987, 130 offenders have been released, up to 2009. One hundred are currently being supervised, 14 had been returned to custody, I think 11 were deceased and three had been deported. There were 17 who had, in one manner or another, reoffended or been deported. However, 14 have been returned to custody.

Let us get back to the issue of the case load that will be required because of this legislation. That follows up on Senator Boisvenu's point, I believe, which was that the numbers we would actually be speaking of, if this legislation does go through, would be about five per year incarcerated as opposed to what there is now.

I do not mean to diminish this but the reality is that the numbers are not that great compared to the legislation that is in place at the present time.

Mr. Sapers: I will have to go back and provide this number to the committee, or you could ask your next witness. I am sure they will be prepared for the number of new admissions for life sentence every year. We are speaking about the cumulative impact of adding those new admissions without parole eligibility.

It is not so much the attrition in terms of how many get out every year but how that population is growing. As I have said, in the last five years, we have seen that population grow by 23 per cent.

You have to understand that the current law is a mandatory period of ineligibility to apply. The fact that you simply apply at 15 years does not mean the parole board will grant it. Also, the largest number of returns to incarceration for those who are granted parole is not for a new criminal law violation. The largest number of returns for suspension or revocation of parole has to do with a breach of a condition of the release itself. It is not a criminal violation; it might be a breach of a condition such as not associating with anybody who is known to have a criminal history. You may be returned to prison because you have breached that condition as opposed to committing a new crime.

The Chair: In the interests of time, I will put my question to you and ask you to respond to it in writing. I will ask Senators Wallace and Boisvenu if they would be good enough to do the same thing, because they are down for second round questions. Please put your questions forward, and ask Mr. Sapers to respond to them in writing. We have more witnesses to hear from.

You have drawn our attention to data which we also raised with the minister and officials regarding the differences in average incarceration rates for murderers sentenced to life sentences between Canada and other countries. Are there any studies that would allow one to understand the impact of those different average incarceration periods on inmate behaviour within the institutions, on rehabilitation both within the institutions and on an offender's ability to become a normal member of society, once he does get out, if he does? I think you understand the kind of thing I am driving at there. If there are any such studies or materials available, it would helpful to us to have the references.

I see that Senators Wallace and Boisvenu do not have questions, so I wish to thank you for your presentations. As always, they were very helpful and the perspectives were very necessary for us to have. We appreciate your patience with us as we try to move everything along. I know you understand because you are experienced, but it is still a little disconcerting.

We are continuing our hearings on Bill S-6, An Act to amend the Criminal Code and another Act. Welcome back to the people from Statistics Canada, who are always so helpful.

We have with us Julie McAuley, Director, Canadian Centre for Justice Statistics; Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics; Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics; and Rebecca Kong, Chief, Correctional Services Section, Canadian Centre for Justice Statistics.

I think you will make a presentation, Ms. McAuley.

Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity to present to the committee regarding Bill S-6. My colleagues, Ms. Dauvergne, Ms. Kong and Mr. Grimes, will assist me in answering any questions you may have.

Before proceeding, it is important to note that Statistics Canada is not able to provide data specifically related to the parole eligibility of offenders sentenced to life for murder or treason. The data we receive from Canada's criminal courts and correctional services does not include information on the parole eligibility for life sentences, nor is data readily available on the number of applications for a judicial review. In the absence of these data, it was agreed that Statistics Canada would provide a statistical overview of crime and the criminal justice system in Canada in the hopes of informing your discussions on this and other bills.

The presentation we have prepared contains our most recent data on crime and criminal justice in Canada. All data sources used are clearly indicated on the slides, as are any pertinent data note. We have also included supplemental information at the end of the presentation for the consideration of the committee, and have distributed copies of the most recent Juristats on crime, courts and corrections data held by Statistics Canada. Please turn to the first slide in the deck.

Using data received from police services across Canada, we can examine trends in the traditional crime rate, as well as the crime severity index. The traditional police-reported crime rate measures changes in the volume of crime. The police-reported crime severity index, introduced in the spring of 2009, tracks changes in the severity of police-reported crime.

In the crime severity index, each type of offence is assigned a weight derived from actual sentences handed down by courts in all provinces and territories.

More serious crimes are assigned higher weights, less serious offences lower weights. As a result, when all crimes are included, more serious offences have a greater impact on changes in the index. Both violent and non-violent crime severity indices can be generated using police-reported data. Police-reported crime in Canada has been declining over the last decade. This is true for both the traditional crime rate and the crime severity index.

The next slide shows that, based on police-reported data, crime severity tends to be higher in the Western provinces and Northern Canada. This finding also holds true for the volume of crime as measured by the traditional crime rate.

In 2008, Saskatchewan's police-reported crime severity index was 156, well above the national index of 90. Index values in the Northwest Territories and Nunavut were more than double that of Saskatchewan. Prince Edward Island's index, despite having increased, was the lowest in the country at 68.

The next slide indicates that the same general geographical pattern is seen for Canada's census metropolitan areas, CMAs. In 2008, higher police-reported crime severity indices were found in western CMAs. Crime severity was highest in Regina, followed by Abbotsford-Mission, Saskatoon, Kelowna, Winnipeg, Edmonton and Vancouver.

The top 10 offences shown on slide 5 account for 91 per cent of all police-reported offences committed by adults and youth in Canada in 2008. Eight of the ten shown are classified as non-violent crimes.

The most common police-reported offence committed in 2008 was theft under $5,000. This, along with mischief and break and enters, accounted for just over half of all police-reported offences committed in 2008.

Police reported 611 homicides in Canada in 2008, 17 more than the previous year, resulting in a 2-per-cent rise in the national homicide rate. The 2008 increase was due almost entirely to increases in Alberta and British Columbia, much of which was gang-related. The homicide rate in Canada was generally stable through the last decade. Gang-related homicides, however, have been on the rise since the early 1990s and accounted for almost one in four homicides in 2008.

The rate of attempted murders, as reported by Canada's police services, peaked in the early 1990s and has been declining since. In 2008, there were 723 attempted murders in Canada, down 10 per cent from 2007.

Turning to slide 7, according to police-reported data, the rate of break-ins dropped 10 per cent in 2008, continuing the steady decline seen since 1991. In 2008, police reported over 200,000 break-ins, of which six in ten were residential. The police reported about 125,000 stolen vehicles in 2008, down from 145,000 in 2007.

Senator Angus: Can I ask a clarification? Is it break and enter into motor vehicles, or break and enter into houses and offices?

Ms. McAuley: Break and enter is a general category.

As a result, the rate of most vehicle thefts dropped 15 per cent, continuing the downward trend observed since the mid-1990s.

Using data received from police services across Canada, we can examine trends in youth accused of police-reported crimes, as is shown on slide 8. Over the last 10 years, there has been a substantial shift in the trends of youth aged 12 to 17 accused by police. The rate of youth charged has dropped, while the rate of youth cleared by other means has increased. Clearing by other means includes, for example, judicial sanctions and police discretion.

On slide 9, we turn to what happens once charges laid by police move into Canada's courts.

In 2006-07, impaired driving was the most common type of case completed in adult criminal court, followed by assault level 1 and theft. These three offences accounted for almost one-third of all completed cases in adult courts. For youth courts, in 2006-07, theft was the most common type of case completed, followed by assault level 1 and break and enters.

Since the introduction of the YCJA, Youth Criminal Justice Act, there has been a 26 per cent decline in the cases completed in youth court. While there is variability in the magnitude of the decline in caseload, all provinces and territories have experienced a decline since the YCJA.

As seen on slide 10, in addition to the decrease in the total number of cases, there has also been a decrease in the number of guilty cases stemming from youth courts. While the decline began in the early 1990s, the introduction of the YCJA coincides with the time where we see a decrease in both the total number of cases completed and the number of guilty cases.

Turning to slide 11, there is a different trend in adult criminal courts. Over the last decade, there has been a 10 per cent decline in the volume of completed cases in adult criminal court. Of the completed cases in adult criminal courts in 2006-07, approximately two-thirds resulted in a guilty finding. This proportion of cases with a guilty finding has been consistent over last 10 years.

Of all adult criminal court cases, 78 per cent involved a male accused, while 16 per cent involved a female accused. The sex of the accused was not known in 6 per cent of the completed cases.

Turning to slide 12, we see that, in 2006-07, the accused was sentenced to custody in approximately one-third of guilty cases in adult criminal court. For those cases where a youth was found guilty, the most frequent sentence was probation.

All provinces and territories have experienced large decreases in both the numbers and proportions of guilty youth cases receiving custodial sentences since the first year of the YCJA. The use of custody has also decreased across all offence categories.

The Chair: For young offenders.

Ms. McAuley: Yes, for young offenders.

On slide 13, we see that the use of custody varies by jurisdiction. In adult criminal courts in 2006-07, the highest rate of incarceration was in Prince Edward Island, where 55 per cent of guilty cases resulted in a term of imprisonment, while the lowest rates of incarceration were in Nova Scotia, New Brunswick and Saskatchewan, where prison was imposed in about one-quarter of cases.

For youth courts, in 2006-07, the highest rate of incarceration was in the Yukon, where 33 per cent of guilty cases resulted in a term of imprisonment, while the lowest rates of incarceration were in Manitoba, Quebec and Alberta.

Turning to the next slide, over half of all custodial sentences imposed against adults in 2006-07 were one month or less, while an additional one-third were for periods from greater than one month up to six months.

Custodial sentences of two years or more, which is federal custody, represented 4 per cent of cases sentenced to custody. The proportion of cases sentenced to two years or more has changed little in the last decade.

In 2006-07, for adults found guilty and sentenced to custody, the mean sentence length was 124 days, which is down from an average of over 140 days 10 years earlier.

For youth sentenced to custody and supervision in 2006-07, 48 per cent were for terms of less than one month. The mean sentence length was 72 days, a sentence length that has been consistent over the last 10 years.

On slide 15, we turn our attention to Canada's correctional services program. One of the most notable trends in corrections populations in Canada has been the growing number of adults in remand and the declining number in sentenced custody.

Since 2004-05, the average number of offenders in federal custody on any given day has increased slightly each year. In 2008-09, the average daily count of federal offenders was 8 per cent higher than in 2004-05.

As can be seen on slide 16, there are variations across jurisdictions in the median number of days served by adults in remand and sentenced custody. For adults in remand in Newfoundland and Labrador, the median number of days served in 2007-08 was 35 days, the highest in Canada. The lowest median days served was in Quebec, at four days.

For adults in sentenced custody, the longest median days served in 2007-08 were in Newfoundland and Labrador and Saskatchewan, at 60 days, and the lowest in Ontario, at 16 days.

On any given day in 2008-09, about 900 youth aged 12 to 17 were in sentenced custody, down 8 per cent from the previous year and down 42 per cent from 2003-04.

Looking at slide 17, we see that youth in remand outnumber those in sentenced custody. In 2008-09, 52 per cent of all young people held in custody on any given day were in remand.

Youth continue to spend fairly short periods of time in remand. As can be seen on slide 18, four of the eight jurisdictions that provided data in 2008-09 indicated that youth spent, as a median number of days, one week or less in custody. Since the implementation of the YCJA, the median number of days spend in remand has varied across jurisdictions. Overall, in 2008-09, 54 per cent of youth released from remand had spent one week or less in remand. This proportion has fluctuated between 53 per cent and 56 per cent since 2004-05.

The next slide shows that, for youth, there are operationally two levels of custody: open custody, which is less restrictive, such as halfway houses or residential facilities; and closed custody, which are secure facilities and would include detention centres. Among the reporting jurisdictions, the trend in time spent in open and secure custody has fluctuated.

As is seen on slide 20, females account for a larger proportion of adults admitted to community sentences than custody.

The Chair: Ms. McAuley, I will interrupt you. This is all fascinating information and will serve the committee well in many ways, but does any of your presentation have to do with Bill S-6, which has to do with parole eligibility and the number of people who reoffend and that kind of element?

Ms. McAuley: As I mentioned in our opening statement, Statistics Canada is unable to provide data specifically related to parole eligibility of the offenders that are sentenced to life for murder or treason. We do not have that data at Statistics Canada. When we negotiated coming down, we were asked to give a 15-minute overview of crime and the criminal justice system in Canada to help inform this bill and others.

The Chair: Really. How interesting. I must say that is news to me. I thought you asked for 15 minutes to talk about the parole system, the statistics you would have on that.

Ms. McAuley: We were upfront in that we did not have the information but offered to do a 15-minute overview of justice and the criminal justice system in Canada. We do not have data that can specifically inform the discussions of Bill S-6.

The Chair: Oh, dear. In that case, I suggest you press on with your presentation, but you may find yourself facing rather fewer questions on this bill. As I say, this is all fascinating information and very useful. We will save you probably some work before this committee on future bills. Not that we will not invite you back, but you can say then, ``As I told you in June.'' Forgive my interruption.

Ms. McAuley: That is fine. I will pick up on slide 20.

As seen on slide 20, females account for a larger proportion of adults admitted to community sentences than custody. Overall, the representation of females in youth custody has changed little over the years since the implementation of the YCJA. In 2007-08, females accounted for 21 per cent of youth admitted to remand, 16 per cent of those admitted to sentenced custody and 23 per cent of those admitted to probation.

Please turn to slide 21. According to the 2006 Census, 3.1 per cent of adults 18 years or older and 6 per cent of youth aged 12 to 17 years self-identified as Aboriginal. In comparison, the representation of Aboriginal adults and youth in custody and community correctional programs has traditionally been higher.

In 2007-08, Aboriginal adults accounted for 18 per cent of admissions to federal custody, 20 per cent of admissions to remand, 25 per cent of admissions to provincial and territorial custody, 20 per cent of admissions to probation, and 21 per cent of admissions to a conditional sentence. In 2007-08, Aboriginal youth accounted for 26 per cent of youth admitted to remand, 34 per cent of those admitted to sentenced custody, and 24 per cent of those admitted to probation.

Slide 22 shows the average daily cost per inmate in provincial and territorial adult custody as well as those in federal custody. In 2007-08, daily costs per inmate in provincial and territorial adult custody ranged from $117 per day in Alberta to $261 per day in the Yukon. Federal custody cost is $299 per inmate per day.

Please turn to the next slide. The total operating expenditures for corrections in Canada has been increasing over the last decade. In 2007-08, the total operating expenditures for adult corrections in Canada was $3.5 billion. Controlling for inflation, this represents a 31-per-cent increase since 1998-99. Over the last decade, total operating expenditures increased 27 per cent for provincial and territorial corrections and 34 per cent for federal corrections.

Once again, thank you for the opportunity to present to the committee. Our hope is that this overview of crime and the criminal justice system in Canada informs your discussions on the bill currently before the committee, as well as future bills. This ends the presentation.

The Chair: As I just said, it is all useful. Please understand me. We not only respect the work you do, we rely on it as we do our work. However, I think we were all primed with a fairly long list of questions which it sounds as if we will have to put to the parole board. In the meantime, Senator Wallace, you have the floor.

Senator Wallace: Thank you for your presentation. I do not have any questions. What you presented was very informative and great information, but if you do not have information relating to the offences of murder, treason and statistics dealing with the parole system, there is nothing I would ask, but we thank you for the information you did provide.


Senator Carignan: The interpreter made a mistake earlier. She translated ``youth crime rates'' as ``judge crime rates.'' So, if you noticed us laughing during the presentation, it was owing to this slip. Regardless of the mistranslation, we understood what was said.

Senator Boisvenu: I have a technical question regarding your calculation method. I know that the method was modified a few years ago. Crime statistics are no longer absolute; I believe that they are now based on severity rather than on actual numbers. Am I right?


Ms. McAuley: We continue to produce the traditional crime rate, which looks at the volume of crime. We have moved to the crime severity index where we are actually able to look at the severity of a crime and weight those, the reason being that the traditional crime rate in terms of volume is driven by non-violent offences so it does not give a true representation of the severity of a crime.


Senator Boisvenu: When we are considering a crime — an example everyone is familiar with is that of Vincent Lacroix, an ``honest'' businessman who cheated about 1,000 people — does the number of victims increase the severity of the crime, or is it all based on the category of crime committed?

For instance, if I were to commit domestic burglary, I would be sentenced for this act. But if I were to burglarize 1,000 homes and were convicted of burglary, would Statistics Canada use a different method to determine the severity of the crime in these two cases?


Ms. McAuley: When calculating the crime severity index, we actually assign a weight to each offence, and it is based on the sentence that is received from the courts.

Senator Boisvenu: It does not depend on how many victims?

Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics, Statistics Canada: Presumably the nature of the offence and extent of the damage done would be taken into consideration at sentencing, so the use of custody is one factor in the development of that seriousness ranking. The other is the magnitude of the sentence.


Senator Boisvenu: Are there any types of crimes that you, at Statistics Canada, do not include in your data? Among other things, I am referring to crimes like prostitution, drugs, kidnappings. Are these also included in your crime statistics?


Mr. Grimes: All of those are provided with a weight in the crime severity index, using the sentencing data that comes from adult and youth criminal courts.


Senator Boisvenu: What I am referring to is parental child abduction or disappearances. Where do criminal disappearances fit into your statistics?

One case that comes to mind is that of young Cédrika Provencher, who was probably kidnapped in Trois-Rivières. That was also a crime. How is this data recorded by Statistics Canada?


Ms. McAuley: All of those that you mentioned would be included in the index, but they would not be included in the traditional crime rate.

If you would like, we can provide you with what is included in the traditional crime rate and then we would be able to show you the severity and how we calculate that for the crime severity index.


Senator Boisvenu: Over the last 15 years, Canada has recorded about 15 per cent fewer homicide cases, but 40 per cent more disappearance cases. Since disappearances are not included when calculating the crime index, it seems like the crime rate has gone down, but there are still 40 per cent more disappearance cases, which are predominantly criminal in nature.

Is the fact that these statistics are not included in the crime index calculations not creating a false impression of the overall crime rate being on the decline? This question is for the experts.


The Chair: Senator Baker has a supplementary. However, since I missed Senator Angus, not only in this panel but in the last, I will ask Senator Baker to put his supplementary after Senator Angus' main question. Senator Boisvenu has put a question to the witnesses.

Senator Angus: They have answered it.

The Chair: They already answered it while I was rattling on? Very well.

Senator Angus: This will not be a long question.

Thank you for all this fascinating information. You have a great team there, Ms. McAuley. I saw one line in your presentation saying ``youth charged'' and another ``youth not charged.'' Obviously, I am missing the nuance here. Is it that they were arrested but never charged?

Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada: The top line which says ``youth charged'' would be those that had been either formally charged by police or recommended to the Crown for charging. The second line, ``youth not charged,'' would represent those in which the police cleared the incident by other means, but an accused youth was identified.

Senator Angus: However, these young people were brought in but upon whom no formal charge was laid; is that right?

Ms. Dauvergne: Correct: They were referred to judicial sanctions, for example, or police used their discretion to not charge the youth.

Senator Angus: I am trying to understand the purpose of slide 8. I am having trouble with it. Let us go to 1988, the baseline, which was 5,000 youths were charged.

Ms. Dauvergne: For everyone 100,000 youth, 5,000 were charged. Our rates are calculated per 100,000 population.

Senator Angus: Five out of a thousand is less —

The Chair: It is 5,000 out of 100,000.

Ms. Dauvergne: Yes, 5,000 out of 100,000.

The Chair: That is 5 per cent.

Senator Angus: Let us say there are 100 youth in Canada; you are saying in the top line that is the percentage of those 100 that were charged with a crime. The rest should add up to 100, then. I am totally confused. Let us work together.

Ms. Dauvergne: It is not proportions that would total 100; it would represent a rate. If you took a group of 100,000 youth aged 12 to 17 years of age, 5,000 in this case would have been charged by police with a Criminal Code offence.

Senator Angus: That is any 100,000?

The Chair: Senator Angus, you need another line on the chart for youths that we think have committed no offence at any time, whether charged or not. That would add up to 100.

Senator Angus: I know Senator Baker is feeling the same confusion I am. In 1988, many more of our young people were being charged than not charged. Today, it is turned around.

Ms. Dauvergne: That is the correct message.

Senator Angus: Okay. I understand. Thank you.

Senator Baker: I have a supplementary question to Senator Boisvenu's points.

You used the expression ``assault level 1'' in a couple of slides. Are you just referring to common assault?

Ms. McAuley: Yes.

Mr. Grimes: 265, 266.

Ms. McAuley: Common assault.

Senator Baker: There is no offence of break and enter under the Criminal Code, but you are talking about break and enter with all of the different variations: Break and enter to commit an indictable offence, break and enter, et cetera. There are seven or eight different sections, but you just call it break and enter, so we do not know if that is what that means.

Senator Angus: We do not know whether it is breaking or entering, or both.

Senator Baker: Or what the indictable offence is. I guess that is the way the statistics are kept by the courts, is it?

Ms. Dauvergne: Are you looking for Criminal Code offences that make up the category of what we call break and enter?

Senator Boisvenu: Yes.

Ms. Dauvergne: I can look that up for you.

Mr. Grimes: For the courts, it is section 348. Most of the information comes in under section 348 and the different characteristics of the offence are included in the subsections within that section of the code.

It is possible to provide more information on the breakout of the subsections. It is not possible to link those indictable offence therein and break and enter, except as it exists within the same case.

Ms. Dauvergne: For slide 7, you see the line there. The Criminal Code offences that would be included in the category of break and enter would be sections 348 and 349, as well.

Senator Baker: That is to commit an indictable offence. Okay, thank you.

Senator Lang: I would like to go back to the reason you were invited here. I appreciate all the work you have done and, obviously, you took a lot of time in preparation to be here.

I would like to know who or how — or both — has to give the instructions to your department to do the statistics on the information that we were looking for, such as the number of people on parole?

Senator Angus: They do not have it.

Senator Lang: I know they do not.

The Chair: I will say something about this before they answer, to explain why we thought Statistics Canada would be able to help. We were heavily influenced by the existence of this document, which is Corrections and Conditional Release Statistical Overview, 2009. Down here in the credits, it is true that a number of departments are listed and you are the last of those listed. However, since we have such a long fabulous history of getting wonderful information from you, my question would then be why were you not prepared to talk to this, at least?

Is that where we are going on this, Senator Lang?

Senator Lang: Yes. I am led to believe that you have not been given the responsibility to acquire the necessary statistics when it comes to first degree offences, such as murder and other areas in that such as treason.

Who must give you that instruction so you can keep those statistics, or how?

Ms. McAuley: In terms of this publication, Statistics Canada did contribute information to the first chapter. When we were asked to come down, we did mention that and that is where we came up with the discussion that we would have an overview.

We do have our youth court survey and our adult court survey. That is where we have a number of information. The sources on all the charts you see, in terms of which ministry provided the information, are clearly stated.

If you look later on in the publication, you will see that a number of them come from Correctional Service Canada, the reason being that they are responsible for federal offenders who are incarcerated for two years or more. The data would come from them and the National Parole Board.

The Chair: Are you clear now?

Senator Lang: We have the wrong people here.

The Chair: These are the right people, but we need a broader range of the right people.

Ms. McAuley: We do receive information from Correctional Service Canada as part of the correctional services program that we have. I do not know if Ms. Kong has any more she would like to add at this point.

The Chair: Colleagues, I should note that we will be hearing tomorrow from both the National Parole Board and Correctional Service Canada, which may go a long way to providing that broader range of the right people we need to hear from. We can always hope. Has Senator Lang concluded?

Senator Lang: I will wait until tomorrow.

Senator Baker: Madam Chair, Senator Boisvenu's point is exactly right. As the witness has said, this is section 348 of the Criminal Code, which is break and enter. There is no such thing as break and enter; there is break and enter with the intent of committing an indictable offence. Then it ranges from life imprisonment — on punishment, in the same section — down to a summary offence.

That is why we are confused with the way that the categories are listed. We do not know whether that is a serious offence break and entry, or whether it is just a summary offence — one going from life imprisonment down to a summary matter. That is why the question was asked.

The Chair: I believe you said it was possible to get a breakout of those numbers. Did I misunderstand something?

Mr. Grimes: For the court's data, it is possible.

Ms. Dauvergne: And for the police data, it is not possible.

The Chair: For what is available, could you send along that information? I am not going to add my usual rider, which is ``as soon as possible,'' because I do not think we need that. Breaking and entering normally does not have a life sentence. We are talking about life sentences for murder and high treason.

Are there any further questions, colleagues?

We will await that information. We will await, with much pleasure, your next appearance before us because you should not think that this lets you off the hook from coming back.

Ms. McAuley: We did know that.

The Chair: It will be helpful to us as we go forward.


Senator Carignan: I believe that Ms. Kong wanted to add something. This is what I have heard, but I did not hear her say so. I am simply wondering if that is still the case.


Rebecca Kong, Chief, Correctional Services Section, Canadian Centre for Justice Statistics, Statistics Canada: I was just going to comment on the contribution we made to the corrections and conditional release overview. It is very much the type of data we presented here. I was going to reiterate what Ms. McAuley said. We were clear when we were asked that the data that would probably inform this bill, and the stuff that is in here in that CCSR overview, does come from NPB, National Parole Board, and CSC, Correctional Service Canada, and not us, but we were asked to come back anyway.

The Chair: That is because we love you and we have such faith in you. Thank you all very much.

Colleagues, we meet again tomorrow at 10:30 a.m. in this room.

(The committee adjourned.)