Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 9 - Evidence - June 10, 2010
OTTAWA, Thursday, June 10, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill S-6, An Act to amend the Criminal Code and another Act, met
this day at 10:34 a.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
The Chair: Welcome to this meeting of the Standing Senate Committee on
Legal and Constitutional Affairs. We are continuing our study of Bill S-6, An
Act to amend the Criminal Code and another Act. We are delighted to have with us
this morning, as our first witnesses on this bill, from the National Parole
Board, Harvey Cenaiko, Chairperson, Shelley Trevethan, Executive Director
General, and Gertrude Lavigne, Senior Counsel. Welcome to you all.
Mr. Cenaiko, please proceed with your opening statement.
Harvey Cenaiko, Chairperson, National Parole Board: It is a pleasure
to be with you today. Thank you for the invitation to be here.
With me today are Ms. Trevethan and Ms. Lavigne. We are pleased to be joining
you to talk about the faint hope clause and about the mandate and work of the
National Parole Board. Before I get started, I will give you some of my
background. I was appointed Chairperson of the National Parole Board last
summer. Prior to that, I was the vice- chairperson in the board's Prairie
region, which encompasses Northwestern Ontario, Manitoba, Saskatchewan, Alberta
and the Northwest Territories. From 2004 to 2006, I was Solicitor General and
Minister of Public Security for the Province of Alberta, having spent seven
years as the MLA, Member of the Legislative Assembly, for the inner city riding
of Calgary-Buffalo. I am also a 25-year veteran of the Calgary Police Service,
where I retired as an inspector in 2001.
I have spent the better part of three decades working within the criminal
justice system. The common thread that I have noticed in every part of the
criminal justice field is the tremendous commitment to public safety of those
working in it. This commitment to public safety also guides the work of the
National Parole Board. For those of you who are not familiar with the board or
its work, let me give you a short overview of the board's mandate and how our
decision- making process works before I touch on the judicial review process.
The board is an agency within the federal public safety portfolio that
reports to Parliament through the Minister of Public Safety. We are an
arm's-length, independent administrative tribunal. This means our
decision-making process is inquisitorial and not adversarial, as in a court of
law, and our decision making operates free from external influence or
The board is responsible for making quality conditional release decisions for
offenders serving federal sentences of two years or more. We also make
conditional release decisions for provincial offenders serving sentences of less
than two years in provinces without their own parole boards. Currently, only
Ontario and Quebec have their own parole boards. Conditional release decision
making accounts for 86 per cent of annual program expenditures within the
National Parole Board's budget. As part of its mandate, the board also makes
pardon decisions and clemency recommendations to the minister.
The board is made up of 45 full-time board members when at full complement.
To ensure we process our cases as mandated under law, we also use approximately
44 part-time board members. Currently, we have 38 full-time and 22 part-time
members. The majority of our board members are located and work in our five
regional offices across Canada. Our members come from all walks of life and are
leaders in such diverse fields as corrections, law, psychology, law enforcement,
social work, education, business and others.
Board members are Governor-in-Council appointees. The Minister of Public
Safety recommends individuals for appointment from a list of pre-qualified
candidates provided by the board following a qualification process that includes
a written examination and interview. In delivering its mandate, the board is
strictly governed by legislation — the Corrections and Conditional Release Act
The CCRA is highly prescriptive of what we do and how we do it. It includes
two basic principles that guide the board in its conditional release decision
making. First, that the protection of society be the paramount consideration in
the determination of any case. Second, that the board make the least restrictive
determination consistent with the protection of society.
Putting these principles into practice, the board looks at two things when
making conditional release decision: whether the offender will not, by
reoffending, present an undue risk to society before the expiration of the
sentence; and whether the release of the offender will contribute to the
protection of society by facilitating the reintegration of the offender as a
All National Parole Board decisions are based on an in-depth analysis of each
case, and a thorough risk assessment based on all relevant and available
information. In making decisions, board members look at information from police
reports, Crown attorneys, courts, correctional authorities, mental health
professionals, private agencies, victims of crime and others. Board decisions
are made by way of a paper file review or an in-person hearing. Hearings are
held in the institution where the offender is incarcerated.
I want to provide you with a few general statistics concerning outcomes. Last
year, the board held over 17,000 conditional release reviews. The federal day
parole grant rate last year was 69 per cent; the federal full parole grant rate
was 44 per cent. In terms of reoffending by parolees, over the last 10 years,
more than 90 per cent of parole releases that the board made have not resulted
in a new offence while on conditional release; and over 99 per cent of parole
releases by the board have not resulted in a new violent offence while on
conditional release. In contrast, the success rate for offenders released
automatically by law at two-thirds of their sentence — also known as statutory
release — was 60 per cent.
These results demonstrate that the Canadian system of conditional release,
which involves a gradual and controlled release of the offender back into the
community, contributes to public safety.
On the pardons side of the equation, 96 per cent of all pardons granted by
the board remain in force.
In keeping with the requirement under the CCRA, the National Parole Board
delivers its mandate in an open and transparent manner. Board hearings are
accessible to the public upon request. In the last five years, almost 9,000
people have attended National Parole Board hearings as observers. This has
contributed to better public understanding of the parole process. I invite each
of you to attend a hearing yourselves to observe the decision- making process in
The board's parole decisions are also accessible. Individuals interested in
receiving a board decision can do so by filling out a request form and
submitting it to the regional office where the hearing was held. More than
28,000 decisions have been released to the public over the past five years.
Providing information services to victims of crime is another priority for
the board. Under the CCRA, victims of crime have the right to receive certain
information about the offender who harmed them while that individual is under
the jurisdiction of the board. Victims can attend a parole hearing, deliver
victim statements in writing or orally at the hearing, ask that special
conditions be imposed on an offender's release, and request the board's
decisions in their cases.
Over the last five years, the board has had more than 94,000 contacts with
victims. During that same period, more than 1,000 victim statements have been
presented at hearings. A recent victim questionnaire indicates a high
satisfaction rate with the board's information services provided to victims. We
continue to explore ways to meet efficiently and effectively the information
needs of victims, and have begun to use video conferencing for victims to
provide their statements.
I want to touch on the topic of the faint hope clause. The National Parole
Board has no role in the actual judicial review process itself. A judicial
review proceeding is between the individual offender and the court of
jurisdiction in the province where the offender was convicted and sentenced.
It should be noted that a judicial review hearing is not a parole hearing. If
an offender's judicial review hearing is successful, the offender is not
automatically paroled. The offender must still apply to the National Parole
Board for parole and undergo a parole hearing. The impact on the board is
minimal, in that a positive judicial review decision simply results in adjusted
parole eligibility dates.
The board's decision-making process does not change in these cases. Board
members conduct a thorough risk assessment of all relevant available
information, the same as they would in any other parole case. The board
considers the risk an offender may present to the community and the protection
of society in deciding whether to grant parole. Public safety remains the
If the board's decision is to grant parole, this does not represent a
reduction in the offender's sentence. The offender remains subject to the
original sentence imposed by the court. Offenders are also subject to standard
parole conditions. Additionally, special conditions may also be imposed where
deemed necessary to safely manage their relationship in communities.
Offenders paroled while serving a life sentence remain under Correctional
Service of Canada supervision for the rest of their lives. If they violate any
conditions of their parole, the parole can be revoked and they can be returned
We provided handouts with judicial review statistics for you today. Judicial
reviews began in 1987. As of April 2010, 1,062 offenders were eligible to apply
for judicial review. In total, 180 judicial reviews have been held, and 147
offenders have received a reduction in the amount of time served until becoming
eligible for parole. First degree murder was the index offence in 128 of these
cases and second degree murder in 19 cases. Of the 147 offenders who had their
parole eligibility date reduced, 136 were granted either day or full parole by
The parole grant rate for judicial review cases is higher than the board's
overall grant rate given that candidates who are successful at judicial review
are cases where the risk of recidivism is likely to be lower. These 136
offenders had a total of 649 supervision periods — 526 on day parole and 123 on
full parole. Of the 526 day parole supervision periods granted, two offenders
had their parole revoked as the result of a new non-violent offence. The
offences were for obstructing a peace officer over 15 years ago and for uttering
a threat to cause death or harm in 2009-10. Of the 123 full parole supervision
periods, nine offenders had their parole revoked as the result of a new
non-violent offence. Two offenders had their parole revoked as the result of a
new violent offence. The new violent offences were for robbery over 15 years ago
and for assault with a weapon about eight years ago.
My officials and I are happy to answer any questions committee members may
have on the board's conditional release mandate or on judicial review as it
relates to the National Parole Board.
The Chair: Thank you. Your presentation was interesting indeed, and
the statistics are good to have because it saves us having to ask for them.
Senator Runciman: You mentioned the basic principles that guide the
board in conditional releases. Have those principles changed over the past 10
years or have they remained constant? Have they been interpreted differently
over the past few years than in the past?
Mr. Cenaiko: The mission and values of the board have remained intact
for some time. The board celebrated its fiftieth anniversary this past year.
The mission and values of the board remain the same. Our role is to ensure
the protection of the public but also to ensure that in assessing risk and the
reintegration of an offender, we assess risk on all the elements that are
required, the critical key areas of that risk, as well as assuring reintegration
in an appropriate manner under special conditions.
The board's role has only changed where the laws have changed. Our guidelines
and policies are driven by the laws that are in place today. Changes have been
made throughout the years to the CCRA. The last substantive change was in 1992
when the CCRA came into effect. Over the years, amendments have been made,
including this past year with Bill C-25, as well as the potential for bills
coming forward this session, such as Bill C-23 and other future bills that we
may see come forward. If the legislation changes, we have to look at changing
our policies and guidelines.
Senator Runciman: This is going back 10 years when I was discussing
the parole board approach at the national level versus the Ontario Parole Board,
where we changed the emphasis in terms of the priority being the protection of
society. The member who was then on the national board indicated that they were
taking a very different approach in terms of the way they dealt with individual
cases. You have certain principles, and I suppose it is a question of leadership
from the top in terms of how you interpret those principles.
What impact do the views of families of murder victims have on the
deliberations of the board?
Mr. Cenaiko: That is a very good question. Having been a board member
myself — and I still am a board member — and having heard a number of cases in
the Prairies, victims have a huge impact at the hearing.
Senator Runciman: Can they ask questions?
Mr. Cenaiko: Victims cannot ask questions. They can provide a written
statement prior to the hearing. The offender will also get a copy of the
victim's statement. The victim can attend the hearing and can provide a
statement regarding the effect that the crime has had on him or her, or on his
or her family.
The board takes into consideration the victim statement at every hearing,
whether the victim is present or whether the victim provided the statement
through the mail. This statement is considered along with all other
risk-assessment criteria we would be following. Statements by a victim, whether
on paper, in person or by video conference, are another measure that the board
must take into account when assessing risk of an offender applying for
Senator Runciman: In your submission, you spoke about the federal day
parole grant rate. When an individual is released on day parole, is that an
Mr. Cenaiko: That is a supervised release in a halfway house or a
correctional facility that is used as a halfway house. It is either a contracted
agency or a CSC, Correctional Service of Canada, facility. These individuals are
under strict guidelines. They can work but they have to report back each
evening. They have to take some programming, whatever was agreed to in the
release plan, which the board members would review and consider prior to
granting a day parole.
Senator Runciman: Do you use electronic monitoring at all?
Mr. Cenaiko: We do not. CSC uses electronic monitoring and there has
been a pilot project in Toronto.
Senator Runciman: Do you have any views on that?
Mr. Cenaiko: I should not provide any personal views on electronic
monitoring. If electronic monitoring were expanded, it would probably be taken
into account during our post-suspension hearings if an offender breached his
condition. However, we do not manage an offender's file. We determine risk of
the opportunity to reintegrate the offender safely back into the community.
The Chair: Our next witnesses will be from correctional services.
Senator Runciman: Is it true that non-Aboriginals, including
non-citizens, are given the right to have special Aboriginal-circle parole
hearings? There was a fellow by the name of Munro who murdered a police officer,
and he was allowed to engage in that type of hearing. What is the justification
for that happening?
Mr. Cenaiko: We do have elder-assisted hearings for our Aboriginal
offenders across Canada. These hearings provide spirituality and cultural
sensitivity for those individuals who would like the opportunity for that type
of a setting. There are offenders in institutions across Canada who feel closer
to that spirituality and culture, and they have requested elder- assisted
hearings. We have not turned down an individual if they have requested such a
hearing. The elders are there for guidance, both the institutional elders as
well as the National Parole Board elders that we have. It is clear at a hearing
whether the individual is truly seeking a spiritual and cultural cleansing
versus someone who is not.
Senator Boisvenu: I find that your submission is rather neutral with
regards to Bill S-6. I therefore intend to dwell on what you refer to as the
paramount consideration of your mandate, that is, the protection of society.
I am going to relate an incident and ask a few questions. Two weeks ago, an
83 year-old man from the Centre-du- Québec was murdered by a man called Blais
who had been released at two-thirds of his sentence. It was therefore a case of
According to his prison file, this was a dangerous individual who presented
an undue risk to society, who was unlawfully at large in view of the fact that
he had illegally left his halfway house.
In cases of statutory release, does the National Parole Board hold hearings
or does it rather conduct cursory file reviews?
Mr. Cenaiko: The National Parole Board does not hold hearings for
individuals who are going to be released on statutory release or two-thirds of
their sentence. We do review their files and we can place conditions on them. We
can place a condition on an individual who will be released on statutory
release. We can place a condition of no contact with victims. We can state no
contact with individuals who have a criminal record, as well as abstention from
drugs and alcohol. We can add those conditions, but that is all we can do.
Senator Boisvenu: Can the Board prevent the release of a criminal who
has served two-thirds of his sentence if he presents a risk to the public?
Mr. Cenaiko: If the individual is referred to us through CSC for
detention, then we can hold a detention hearing and take into consideration the
concerns that CSC has raised. In those cases, there is usually a serious concern
in relation to risk to the public by that offender being released back into the
Senator Boisvenu: Can you explain, at this moment, the fact that a
criminal who has served two-thirds of his sentence, who has failed to
participate in any treatment program during his three year reintegration period,
who, according to the prison system, is about to re-offend, is a dangerous
offender and that no one has met with him prior to his release. But, if you ask
the National Parole Board, they will say that they ``had no choice.'' When
asked, the prison system gives the same answer.
On the other hand, the Criminal Code provides that an offender who has not
participated in a rehabilitation program can be detained until he has served up
to three-thirds of his sentence. In the present case, this cost an 83-year- old
man his life.
You state that you are responsible, in particular, for public safety. Should
there be an additional responsibility, that is to say, should the National
Parole Board be held accountable for each and every decision it takes?
The Chair: The question somewhat exceeds the scope of the Bill, which
is not to say that it is devoid of interest
Senator Carignan: It is a very good question.
Mr. Cenaiko: That is an excellent question. The Corrections and
Conditional Release Act states that offenders will be released at two-thirds of
sentence. We have no say as to whether he will or will not be released. The
issue is whether the person is a threat upon release. That has to be raised in
the institution through the psychological reports reviewed by the CSC and
possibly through his period of incarceration in order to determine the person's
behaviour and other issues, such as whether there is outside concern from police
agencies that he might be tied to organized crime. All of those elements would
be taken into consideration by CSC because he is an inmate in that institution.
The law says that they are released at two-thirds. The old name was mandatory
release; today, it is statutory release. That is the law — two-thirds and they
Senator Carignan: Thank you for your excellent presentation. I would
like some clarification concerning the numbers raised. First of all, at page 4
of your presentation, you mention recidivism rates for the last ten years and
you state that 90 per cent of paroled inmates do not commit a new criminal
offense while free on bail.
I understand that there is a difference between ``do not commit'' and ``are
not accused of having committed a new criminal offense.'' And it is obviously
impossible to know if crimes were committed or not because, since there have
been no arrests, there is no proof.
I understand, from your remarks, that probably 90 per cent have not been
accused of committing a new criminal offense, is that right?
Mr. Cenaiko: The statistic of 90 per cent is the number of conditional
releases. Of the cases that are granted parole, 90 per cent do not commit
another criminal offence prior to their warrant expiry date. They are under
supervision in the community by CSC. Obviously, if the parole officer in the
community or the police are aware that the individual is involved in a criminal
offence, they become involved. If it comes to light that the parolee has
breached a condition, then parole is revoked. Another hearing is held to
determine whether the suspension and/or the parole should be revoked. That
additional board hearing must be held within 90 days of the parolee being
incarcerated to the institution.
Senator Carignan: I just want to be clear. If a person commits murder
and no one knows about it, the person is deemed a non-recidivist.
Mr. Cenaiko: Yes, I guess so, if no one knows about it.
Senator Carignan: That is the point I wanted to clarify. There are
nonetheless a certain number of persons who re- offend and apparently, 40 per
cent of inmates who are on statutory release do re-offend.
When this happens, do you conduct a review of the release process applied in
the person's case? Is the decision's quality challenged? Is the process
re-examined in order to prevent further such mistakes. I have a feeling that Ms.
Lavigne wishes to answer my question.
Gertrude Lavigne, Senior Counsel, National Parole Board: There is no
doubt that Parole Board members are accountable for their decisions. When an
inmate is released and something bad, something unfortunate happens, the
Board—Correctional Services can confirm this later on- has the power to
investigate. The Chairperson can have a committee examine the events surrounding
Now, when there is no such incident, the power to investigate is not
necessarily used. But, as for training, when incidents do occur, there is no
doubt that the Board, through the training section and at a legal level, reviews
the case and asks questions in order to ensure better training that also
addresses the problem.
I may be a bit off the subject but certainly, the Corrections and Conditional
Release Act is enabling. It confers powers to the Board. Le Board cannot exceed
these powers. The Board's jurisdiction is solely conferred by the statute.
For example, statutory release is a right, and the Board cannot decide to
refer itself a case. It must have jurisdiction when services refer a case for
detention, for example. It is important to know that the Board cannot exceed the
Senator Carignan: I see that you consider 17,000 judicial reviews per
year. I am impressed because this represents, according to the number of Board
members, an average of 283 decisions per member, per year. I understand why this
can limit the time one can spend on a particular case. However, when a decision
is taken, following judicial review that represents more than 1,000 decisions
since 1987 for 130 cases. I therefore conclude that there are, on average, nine
decisions per case rendered by the Board, per person. Where do these decisions
come from? What is the nature of decisions? Can you explain this a bit more? I
can understand that a person is released once. That is a decision. But there are
eight decisions that follow the one decision over the next 15 or 20 years, what
is the nature of these decisions?
Mr. Cenaiko: Especially in the case of a lifer, for example, who
applies to the National Parole Board for a hearing, it is highly unlikely that
they will be released on day parole at the first appearance. It is more
customary to reintegrate them into the community slowly and under supervision.
It is customary for them to go through a process of UTAs, unescorted temporary
absences, which are the usual first steps for an offender moving back into the
Those decisions are made by the NPB, National Parole Board, for a period of
up to three months to see how the individual does for 48 hours and 72 hours in
the community. He can do this two or three times a month, depending on the
release plan determined to be right by the community parole officer. It may be a
period of three months.
Once that is over, he will have to reapply to the board for an additional set
of unescorted temporary absences. Once he has done that for possibly one or two
years, depending on the offender and depending on the risk, the board may
consider day parole, which could last for up to six months.
During that period time, again, his risk is assessed as he is in a halfway
house. He can apply for full parole; that may be denied. Day parole may continue
for another six months until the board feels his risk is low and that his
release plan provides for ensuring safety of the public. There could be a number
of reviews on an offender, depending on the length of their sentence and the
crime they committed.
Senator Carignan: But these are murders.
Mr. Cenaiko: Normally, that is the flow — from UTAs, day parole to
full parole — but it is a drawn-out pattern we would look at to ensure we are
not placing the community at risk.
Senator Baker: First, I want to thank the witnesses for attending the
committee hearing and to congratulate you on the job you do. It is a very
difficult job. I know you have been in very difficult situations in the past in
making judgments, and you have performed admirably.
You say in your statement that the NPB has no role in the judicial review
process itself. Then you say that for this bill we are passing, the impact on
the board is minimal; it will simply adjust parole eligibility dates.
Regarding the system that we have in Canadian law today to be eligible to
apply for early parole, do you know of any other system in the world that
Mr. Cenaiko: No.
Senator Baker: Your chief legal counsel, who has been in court many
times, does not know of any similar system in place.
The application to the court initially, to the judge, has the same factors of
consideration that are implanted in the Criminal Code. There are four or five
factors. It is based on written material initially, and then the same factors
are considered when it goes to the jury. That answers the question of whether
the 12-person jury empanelled gives a unanimous decision that the person should
be granted early parole. That is the determination they make. It goes then to
the National Parole Board where a completely different set of circumstances is
examined. Am I correct in that?
Mr. Cenaiko: Yes.
Senator Baker: What this bill does for future murderers is take away
the prospect of early parole. It is a huge change in the law.
There are only two other ways that I can think of that someone could be
granted early parole, which is if they went to the court and argued a section 12
argument or if they applied to the minister. Now I am getting to your role.
We are dealing with section 745. Section 749 of the Criminal Code says that a
person can apply to the minister — who appeared before us recently — for early
parole if they think that their sentence for first or second degree murder is
not in balance.
You have a role. In your procedural booklet, I understand there are six
factors that you consider. My understanding is that the minister gets the
application and he then passes it over to you for a determination on whether or
not the government will give early parole. Am I correct in that?
Mr. Cenaiko: I am confused. Are you talking about the royal
prerogative of mercy, RPM?
Senator Baker: Yes.
Mr. Cenaiko: First, I will go back to your opening comments. When an
individual makes an application — whether it is a lifer, in this case we are
discussing today, or an individual who committed six sexual assaults and
received 18 years imprisonment — the National parole Board would hold a hearing
and would assess the risk of both individuals the same way. It does not matter
what their eligibility dates might be.
When talking about the faint hope clause, there is no impact that the board
will have. Any offender that is eligible within the corrections system across
Canada, when their eligibility date comes forward, we, as board members, have a
role to take to ensure the protection of society and the safe reintegration of
Speaking in relation to the royal prerogative of mercy or the clemency
process, yes, individuals can apply. The royal prerogative of mercy is largely a
discretionary power to apply exceptional remedies under exceptional
circumstances to deserving cases. The power to exercise the RPM for federal
offences is vested in the Governor General of Canada, by virtue of letters
patent, consulting the office of the Solicitor General of Canada.
Senator Baker: It would be the Minister of Public Safety and Emergency
Preparedness, I would imagine. Would that be right, chief counsel?
Mr. Cenaiko: Yes. These requests are made to the minister. Clemency
requests, as a rule, are forwarded to the federal cabinet for a decision, rather
than to the Governor General who exercises the power only when the remedy sought
cannot be granted for recourse.
There is a process for an individual who applies for clemency. We prepare the
file; we determine what the hardship is and we provide that file to the
minister, who will make a decision whether to cause a more thorough
investigation on the hardship. If the minister states that, that investigation
is done and it is taken back to the minister. The minister then takes that to
cabinet and cabinet makes a decision.
Senator Baker: In your opening statement, you said that this bill does
not affect the National Parole Board. This bill will dramatically affect you,
will it not?
In the last four or five years, how many requests have you prepared to the
cabinet? Are you allowed to tell us this? In how many cases did the cabinet not
agree with your conclusions?
Also, what are the six factors you take into consideration? With this faint
hope clause gone, what are the six factors in your procedural guidelines that
you consider in order to say to the cabinet you should give this murderer an
early parole opportunity?
Mr. Cenaiko: We receive less than 30 clemency requests per year, on
average. There were 37 in 2009 but, on average, it is less than 30.
In the last five years, five requests have been granted, seven have been
denied, and one hundred and sixteen have been discontinued because the offender
did not provide sufficient information or proof of excessive hardship to proceed
with the request, or because the minister determined that the clemency request
did not warrant an investigation, as the criteria was not met.
Senator Baker: Why are these things not made public? Can someone
answer that question?
Shelley Trevethan, Executive Director General, National Parole Board:
The information is made public. We have it in our departmental performance
reports, in our performance monitoring reports that are on our website. The
information is there in terms of the numbers.
This could cause more applications to come to the board, but the reality is
that they have to have exhausted all other avenues. Therefore, it is unlikely
that these types of cases would end up making their way through the system and
receiving a clemency.
Senator Baker: All other avenues would be the normal judicial review
procedures that would probably be dealt with by a prothonotary in the Federal
Ms. Lavigne: It depends. When we talk about exhausting all other
avenues, usually they have to go to the Department of Justice to have a review.
It was section 690 of the Criminal Code. However, the number has changed and I
am not sure of the new number. The minister and their staff will review the
The royal prerogative of mercy is an exceptional remedy.
Senator Baker: Yes, of course, it is exceptional, but we are talking
about 37 last year.
Ms. Lavigne: It is not an easy way to short-cut the law. As the
board's policy manual says, not only do they have to exhaust all other avenues,
but the clemency request will not be considered where the difficulties
experienced by an individual applicant result from the normal consequences of
the application of the law.
Senator Baker: Absolutely, but look at the number of successes that we
have had. This is germane to the conversation here.
The Chair: This is your last question, Senator Baker.
Senator Baker: Maybe on the second round, then.
The Chair: Absolutely, but this is your last one.
Senator Baker: If this is my last question, my goodness. The Chair
only gives me one question on the second round; that is my problem.
Why is it that your appeal division within the National Parole Board quite
frequently overturns your decisions? Those decisions will become numbered after
the passage of this bill, is that right?
Ms. Lavigne: Right.
Senator Baker: You just said ``exhaust all avenues.''
Ms. Lavigne: Yes, before we go to court.
Senator Baker: You will now have your own appeal division examining
some of your decisions. That was not going to be my question, but it is a
fascinating area. I will go on the second round, I guess.
Senator Carstairs: I want you to take a look at your judicial review
statistics. People eligible to apply are 1,062; court decisions made are 180. As
I work that out, it is about 16.6 per cent. What is the reason for the remainder
not making application?
Mr. Cenaiko: I could not tell you.
The Chair: May I ask a supplementary to that, if I may. There are two
levels before things get to you. First, someone applies to a judge to seek the
right then to apply to a judge and jury. ``Court decisions made'' refers to the
judge-and- jury process.
Mr. Cenaiko: That is right.
The Chair: Therefore, you do not know how many of the 83-odd per cent
may have applied to a judge at the first level of the process and been rejected
then. Is that right?
Mr. Cenaiko: That is right.
The Chair: You do not know that?
Mr. Cenaiko: No.
The Chair: Does anyone know that?
Ms. Trevethan: We followed up on this as well. Obviously, it goes to
the provincial level first. No information then comes through to us, other than
those where a jury was in place. Our assumption is that, at the provincial or
territorial level, they record it somewhere. However, none of that data is
compiled. It would be at the provincial or territorial level where they
determine how many.
Senator Carstairs: In reality, of those that apply, we are looking at
12.7 per cent who actually get access to the faint hope clause. If I carry that
forward and look at the non-violent offence rates of those who are on
conditional release — and these people would be on conditional release — we have
99 per cent; I think it actually ends up being 98.6 per cent for those on the
faint hope clause. I taught math at one point in my life, so I tend to do these
kinds of calculations.
The conditional release provision, therefore, works.
Mr. Cenaiko: The conditional release system in Canada is at such a
standard that other countries are looking at the model we have, whether it is in
relation to the faint hope clause or in relation to any offender having the
opportunity to apply to the National Parole Board for a hearing. As I mentioned
earlier, whether we do a hearing for a lifer who has moved through this process
or we do a hearing for a lifer that has not moved through this process, our
responsibility remains the same. Our role is to assess risk and to ensure the
protection of society.
Senator Carstairs: In terms of the period of time, they are eligible
for parole in five years, but we know that the average length of incarceration
is actually 28.4 years. What is the reason why that is 3.4 years more than their
eligibility for parole? What consumes that time, if you will?
Mr. Cenaiko: Again, that is an average. Obviously some would go
earlier; some would go later. It depends on the individual. It depends on the
health of the individual and their mental health status. It could depend again
on the institutional behaviour of the individual. It could depend on a number of
issues in relation to organized crime or issues of the tragic and/or horrific
nature of the offence itself. There are a lot of things that must be taken into
As I mentioned earlier, we take into consideration comments and statements
from victims as well at those hearings. As we mentioned, not everyone is granted
parole. Full parole is granted to approximately 40 per cent of the offenders who
come forward. That is not a lot. The doors are not being opened up and offenders
are being released. It is 40 per cent, although the success rate of the National
Parole Board in relation to them not committing another offence is very good. As
we mentioned, 90 per cent and 99.5 per cent are not committing another violent
criminal act. That is extremely important in our role to ensure that we are
Senator Carstairs: In terms of the length of time, one of the issues
that concerns me about this legislation is that they are being told now that
they will have only 90 days from the time they reach their 15 years to when they
can make an application for the faint hope clause, for those of them who would
be eligible. Some of them would not be eligible at all. However, for those
eligible, it will be 90 days. In your experience, is that realistic? Can you go
from an application to a hearing in 90 days before the National Parole Board?
Mr. Cenaiko: I do not want to speak regarding the legislation because
our role is not to determine legislation. Legislation drives our policy and our
guidelines. Whatever you and the House of Commons, as lawmakers, bring forward
to us, we will change the work that we do.
However, we have hearings held within 90 days. In terms of various hearings,
if those that were revoked on a post- suspension were on a conditional release
and they were arrested for breaching a condition, whether it was alcohol or
drugs, we must have a hearing within a certain period of time and I believe that
90 days is the time period, yes.
Senator Carstairs: Yes, but I am talking about the person in prison
who would make an application for parole — not a person on conditional release
but the person in prison. On average, how long would it take?
Mr. Cenaiko: I do not know. That might be a better question for CSC
and the institutional parole officers working with offenders prior to their
upcoming parole eligibility dates. That might be a question for institutional
Senator Carstairs: Thank you. I will go on a second round.
The Chair: This will all be tight today.
Senator Munson: I have a few brief questions of our guests at this
committee today. Does anyone in this room know whether other countries have a
faint hope clause and, if so, how it works? If so, has it been assessed? You do
not have an answer for that question?
Mr. Cenaiko: I do not have an answer in front of me. I am not aware of
any other country that has a faint hope clause. I am aware of other countries
that have differences in their eligibility dates for murder, but not
specifically per se a faint hope clause. We could get back to you with
information in more detail.
The Chair: We have some data that we can provide to Senator Munson. He
was not at the meeting last night when we discussed these data.
Senator Munson: Do you think the parole system and the board hearings,
given their complexity, work well?
Mr. Cenaiko: Having only been appointed chair 10 months ago, there are
a number of areas we are reviewing internally to be more efficient and
However, the legislation in place is what guides us on the whole. We have a
strong mission and core values that provide us with our commitment to Canadians.
We are looked upon by international colleagues as leaders regarding parole.
For example, we gave three presentations to the Association of Paroling
Authorities International, APAI, in the United States a month ago. The first
presentation was on our services to victims. The second presentation was on our
transparency and openness. Not many jurisdictions provide the opportunity for
victims to be present to allow them to observe a hearing and to obtain a
decision from the decision registry. We are leaders internationally on openness
The third presentation was on risk assessment. The psychologists and
psychiatrists we use in training our board members are second to none. A number
of American states, which each have their own parole system, are going to the
APAI to access the work the National Parole Board is doing with Carleton
University regarding assessing risk.
This is something we are proud of. We will continue to move forward this year
and next year to ensure those critical elements are weighed and factored in risk
assessment on every decision we write.
Senator Munson: You say you are guided by the present legislation,
with which you seem to be satisfied. You are justifiably proud of some of the
statistics you presented this morning and how the system works with regard to
the faint hope clause and other parameters.
In your experience, do you feel there is any need for these amendments?
Mr. Cenaiko: Again, senator, I do not want to comment on the
law-making process. I was there at one time; I am no longer there. I am proud to
be the Chairperson of the National Parole Board. Our role is to follow the
guidelines and determine policy from the legislation that you and your
colleagues in the lower chamber make. That is what we will continue to move
We are not here to develop law or to provide suggestions. We work with the
minister. We have a dotted line to the minister as we are independent. However,
we provide the minister with information in relation to the work we do and how
we can ensure the protection of all Canadians when assessing risks of offenders
Senator Munson: I do not want to put you on the spot, but I will put
my question another way. Are you satisfied with the present legislation?
Mr. Cenaiko: Again, I cannot answer that question. As I mentioned, the
present legislation and/or future legislation will only affect us as much as it
affects us. We will continue to assess risk on lifers, whether they are eligible
for parole at 15 years, at 20 years or 25 years.
It does not matter to us. We will continue to ensure that we assess risk and
that the mission statement of the National Parole Board is in the front of the
mind of each of our board members.
The Chair: Senator Munson, I misread the clock. You actually received
a couple of minutes less than Senator Baker. I can only suggest you complain to
the chief opposition whip.
Senator Runciman: I wanted to compliment the chair on her courage in
cutting off her own whip.
Senator Munson: I cannot help my reporting instincts.
The Chair: Indeed. It is like the fire bell.
Two senators remain on the first round of questions. Then we have five
senators for a second round. We must liberate these witnesses — fascinating
though they truly are — at noon. We then have to move to other witnesses because
slightly more than one-half of the membership of this committee has to leave a
few minutes before one o'clock.
Senator Wallace: Mr. Cenaiko, my question relates to the principles
you set out in your presentation that the board applies in its decision making.
I am left with the impression that you obviously look at the circumstances
relating to the offender in question — his or her character and how they have
conducted themselves balanced against the protection of society. My impression
is that you consider this from the time of incarceration forward. I see you
shaking your head so you can clarify that.
Assume an offender commits a particularly heinous crime that many feel,
because of the circumstances and nature of the crime, that release at 15 years
would not be an appropriate denunciation of the offence involved with those
circumstances. Do you consider the nature of the offence for which the applicant
was convicted or do you merely consider the circumstances of the offender at the
time of the hearing?
Mr. Cenaiko: It is a good question, senator.
When we look at reviewing an offender's file and/or at a hearing with an
offender, it starts with his FPS, finger print system, looking at his criminal
record. Obviously, we are looking at a lifer in this case. We would look at the
seriousness of the offence. We look at the tragic issue that may have occurred.
That is reviewed at the hearing where we ask the offender details related to
the offence — the stabbing, shooting or torture that may have taken place. We
move on from those details to talk about his societal issues at that period of
time in his life. We look at issues that may have affected him during the
commission of that offence.
We then review the police reports from the offence. We look at the comments
that the judge made at the time of sentencing. That provides us with the
clearest understanding of what the judge and society felt at the time of
sentencing, which is roughly a year-and-a-half after the offence was committed.
The judge's comments are critical in assessing the risk of the individual as we
may not see in that file some 17 years later. We also include comments from the
Crown prosecutor's office.
Moving into the institution, we look at his institutional behaviour,
psychological reports, psychiatrist's reports and any comments in relation to
his mental health within the institution and program completion.
The area that is difficult for any board member is where victims are
involved. It is a continuing trauma for a victim to hear the proceedings, but it
is by their choice to attend the hearing. For a victim to hear the nature of how
her husband died or was murdered traumatizes the victim all over again. It is
very difficult for victims, but the board does take that into account in the
assessment of risk as we move forward. As we move forward through the years, we
are looking at whether the offender still, to this day, presents a risk to the
community and whether this risk can be managed in the community. How has the
offender done? What are the psychological assessments of the offender throughout
the years in the institution? What do those assessments say regarding his
behaviour in the institution, as well as the perception of what his behaviour
might be outside the institution?
Senator Wallace: On page 3 of your presentation, you refer to the
basic principles that guide the board in its decision making. Putting those
principles into practice, you say the board looks at two things when making
conditional release decisions.
I do not understand what is being said in the first bullet: ``Whether the
offender will not, by reoffending, present an undue risk to society before the
expiration of the sentence.''
It does not say whether the offender will, as a result of the release,
present an undue risk, but ``will not by reoffending.'' Does that mean you
presuppose that the offender could reoffend, and you are trying to then imagine
the nature of what the offence could be and whether that presents a risk? I am
not sure I understand what the words ``by reoffending'' mean.
Ms. Lavigne: Through the years, this has been an issue in how section
102 is drafted because of the words ``by reoffending.'' When the board is seized
with a matter, it goes without saying that in deciding whether or not an
offender will be released on parole, the board's aim is to ensure that the
offender will not reoffend.
The two bullets have to be read together. They are not in isolation. The
second bullet says that the release will contribute to the protection of society
by facilitating integration as a law-abiding citizen. You have to read the
section altogether. The result is that an offender will be released given that
he will not reoffend and that he will be a law- abiding citizen.
Senator Wallace: I understand what you are saying, but with all due
respect, I do not think it is consistent with what I read here.
Ms. Lavigne: I think it is a drafting issue to a certain extent.
Mr. Cenaiko: I think it would be clearer if you removed the words ``by
Senator Wallace: Yes, I think so. Thank you very much.
Senator Lang: Thank you for appearing before us.
I would like to follow up on the question of the faint hope clause and the
hearings you have when one goes to the judicial review and you hear the request
for early parole.
At the last committee meeting, it was made clear by the minister that the
victims who have endured the crime, with the disruption in their family life and
the loss of life, receive this notice and all of a sudden they have to go to a
parole hearing to put their point of view across, if they wish; they have that
choice. You have said that this is a traumatic experience, and the minister
indicated to us that that is one of the major reasons this legislation is before
How long does this hearing go on? With regard to the victim impact study, the
victims can speak to you, but they cannot question the offender. Perhaps you
could outline to us how this process works. Is it a day hearing or is there a
set period of time? Can the hearing go on for days and days?
Mr. Cenaiko: Normally, board members study for two days, approximately
four to five files per day, and then they will hold hearings Wednesday and
Thursday. In life-sentence cases there could be volumes of files, so you will
not have the same workload; you might only have one or two files in a day.
The hearings can last from two to four hours. As you mentioned, the victims
appear. Our communications staff will work with victims to determine whether
they would like to speak at the beginning or at the end of the hearing. We do
not tell victims when they have to speak; it is up to them when to make their
In the present system, we may have a hearing at 15 years. If he is not
granted and he reapplies, there will be another hearing at 17 years. If he is
still not granted, there might be another hearing at 19, 21 and 23 years. You
are putting the victim through a lot of trauma each time you have a hearing. I
am saying that because I have been there, I have seen it and I work with it. The
situation is very painful, especially when you have lost a loved one, a son or a
daughter. These are hard cases to deal with.
Senator Lang: That is one of the reasons the legislation is before us.
I cannot imagine the anguish of reliving those events 15 years down the road.
When the sentence was given, you assumed the offender would get 25 years, and
suddenly you get a notice in the mailbox. I cannot imagine that.
With respect to the question of statutory release, Senator Boisvenu outlined
a recent situation in Quebec. I have a concern. It seems there are many players
involved here. I do not envy your job and the decisions you have to make.
However, it seems to me that the situations we hear about in the public are when
someone abuses the privileges they have been provided through our system because
we are a tolerant society.
When you go back to the law, in this particular case, the individual was
charged as a dangerous offender. He was let out because of the statutory
requirement, at two-thirds of his time. However, I understand that there is a
fallback position under the Criminal Code if he or she does not meet certain
How would you change the process so that we can try to prevent such a
situation? Are there guidelines you have to deal with? Perhaps Corrections
Canada brings to the attention of the parole board that these are dangerous
offenders and that they are about to be released. Maybe we have to put in a
review process. Could you comment on that?
Mr. Cenaiko: I cannot provide personal opinion or comment on specific
or proposed legislation. What I can say, though, is that in the case we heard
this morning, the individual was released on statutory release at two-thirds of
his time; he is out. He may have had a condition to abstain from alcohol or
drugs, but I do not think it mattered to him, because he went and killed an
83-year-old in the community.
Six months prior to statutory release date, either the commissioner or the
deputy commissioner of CSC can do an investigation within the institution on an
individual whose statutory release date is coming up. If they consider the
individual's risk in the community to be such that he might commit a violent
criminal offence, they can apply for a detention of the individual.
The commissioner of CSC sends that request to me. I review it, and we have a
detention hearing. Board members will hold a detention hearing for the offender
prior to his statutory release date to determine whether he is to be detained in
custody until his warrant expiry. In some cases, that happens. Again, you have
to have all the supporting evidence to state why this individual is a threat if
released and that he will commit a serious crime or sexual assault in the
Senator Lang: I have one more question.
The Chair: We have nine minutes left and five senators on the list. I
will give you another 30 seconds for question and answer.
Senator Lang: You are wonderful. Does it happen often that you are
requested to look at the possibility of detention?
Mr. Cenaiko: I probably review one or two per week.
Ms. Lavigne: Two mechanisms are provided under the CCRA: One is
referrals by the chair of the NPB and the second is referrals done in the
different regions. These are triggered by the Correctional Service of Canada who
then refers the case to the NPB. We have the commissioner's authority to refer
to the chair and the service in the region that will refer to the NPB in the
The Chair: In any case, it does not apply to murderers.
Ms. Lavigne: Yes.
Senator Runciman: Given your position, you might not want to respond
to some of these questions.
Currently, when someone is arrested for first degree murder, the clock starts
running at the time of arrest, assuming bail is denied, which would be in most
such cases. Therefore, the release eligibility for the individual could exist
after 13 years. Is that true?
Mr. Cenaiko: CSC provides us with the eligibility dates. If you do
your math and it was a case of one or one, then, yes, it could exist for 13
years from the date of the charge.
Senator Runciman: Most Canadians would be offended to understand that
someone charged with first degree murder could be eligible for consideration for
release after 13 years.
You said that about 90 per cent do not reoffend. I believe I read that
somewhere. I understand that does not involve breaches of conditions of parole.
What considerations are given to breaches and does CSC notify you of all
Mr. Cenaiko: Yes, they consider all breaches. The 90 per cent includes
breaches of any kind. If the parolee is to abstain from drinking alcohol and
they do not abstain, it is a breach of their conditions and they are yanked back
in. The statistics on our work are very good. We clearly deny to those that we
think pose a risk, and we grant to those that we think pose a manageable risk.
Senator Carignan: I will pass my turn in the hope of gaining some
Senator Boisvenu: First of all, congratulations for your work with
victims — I forgot to mention it earlier. For a number of years now, since the
establishment of the National Office for Victims, victims participate much more
actively in the parole process, although much remains to be done.
Decisions are based on statistics, judgments are based on statistics. I would
like to know how you calculate recidivism rates. Is it true that recidivism is
only taken into account while the offender is under the prison system's
If a criminal who has served a sentence of less than two years in a
provincial jail reoffends, is he included in the statistics?
When a criminal who has been sentenced by a municipal court reoffends, is
And finally, when a criminal convicted of theft reoffends and commits another
theft, is he a recidivist?
The Chair: Who will respond?
Mr. Cenaiko: The short answer is, yes. The only provincial offenders
that we do not have are Quebec and Ontario because they have their own
provincial parole boards. Across Atlantic and Western Canada, those statistics
are incorporated into the numbers that we provided to you today.
Senator Boisvenu: But the criminal has to be under the prison system's
responsibility. If he commits a crime as soon as he has finished serving his
sentence, he is not a recidivist?
Mr. Cenaiko: Provincial corrections are the responsibility of the
province, and the federal two-years-plus-a-day is the responsibility of the
Correctional Service of Canada. They work closely together. They have a
committee of all the provincial ADMs, assistant deputy ministers, responsible
for corrections across the country.
For our statistics, we work with Quebec and Ontario provincial boards to look
at the provincial rates that we are responsible for as well as at the numbers in
Quebec and Ontario.
Ms. Trevethan: The definition of ``recidivism'' differs across places.
We have to look at what information we can gather. At the Canadian Centre for
Justice Statistics, who appeared before your committee yesterday and provided
information, they have tried to look at this over time, including the provincial
information. Studies have been done to pull in the longer recidivism rate to
look at five years past warrant expiry date, for example. It is difficult to do
because of the way in which the provinces and the feds collect information. Yes,
we are looking at a shorter time frame.
Senator Baker: In the same vein on the possibility of reoffending, the
words ``substantial likelihood'' are used in the bill in the bail provisions. A
substantial likelihood of reoffending is defined, Ms. Lavigne, in R. v.
Pearson, Supreme Court of Canada.
Now that we have established that the effect on the National Parole Board
with the passage of this bill applies only to murders that take place after the
passage of this bill — that is how it will affect you. You will be asked more
often than now under section 749 of the Criminal Code to make a recommendation
to cabinet ministers. Do you also make a recommendation to cabinet ministers
under this new section proposed in the bill that redefines section 24.1 of the
International Transfer of Offenders Act? Do you have any role in the
determinations made by cabinet ministers whereby the cabinet minister has to
determine whether to accept someone's application to return to Canada? If you
have no role in that, I go back to my original question.
Ms. Trevethan: We do not.
Senator Baker: Does the cabinet minister accept your recommendations
under section 749 or does the cabinet minister reject them, as to the names of
the people and whether they have been convicted of murder? It is not reported in
case law. At least, I have not found it.
Ms. Lavigne: With respect to the RPM, you will not find that.
Senator Baker: It is secret between you and the cabinet minister?
Ms. Lavigne: No; it is personal information that relates to the
individual. That is the way it works. Whether or not we agree with it, this is
how it works.
Senator Baker: That is amazing to me. We read the case law and we read
about all these people who have been convicted of murder and how they go through
the processes of appeal in your own appeal division, and so on. All of a sudden,
we have a determination made by a cabinet minister, with over 30 submissions
made by you over the past year.
Ms. Lavigne: For the board, we only make recommendations.
Senator Baker: Yes, but then we would like to know what these cases
The Chair: We would, but we are out of time, Senator Baker. It is
maddening, is it not?
I assume you are operating here, in part, under privacy requirements.
Senator Carstairs: About 60 per cent reoffend when they are released
statutorily; 90 per cent reoffend when they are conditionally released. Is that
90 per cent in perpetuity or is it just while on conditional release?
Mr. Cenaiko: While they are on conditional release, up to their
warrant expiry date. If they are released on full parole at one-third, or
sometime between one-third and two-thirds, that takes them through to that
warrant expiry. It could be a substantive number of years as well.
The Chair: For murderers, it will be for as long as they live because
their sentence is life.
Mr. Cenaiko: For murderers, there is no expiry. They are on parole for
Senator Carstairs: Thank you.
The Chair: Thank you all very much indeed. It has been very helpful
and instructive for all of us. Do forgive my whip act here. Whip, please forgive
my whip act here. The problem is that we are all so interested that we could
keep you here for hours.
We are fortunate to have as our second panel of witnesses this morning, from
the Correctional Service of Canada, Ian McCowan, Assistant Commissioner, Policy
Sector, and Lynn Garrow, Associate Assistant Commissioner, Policy Section. I
think you have an opening statement, Mr. McCowan. Please proceed.
Ian McCowan, Assistant Commissioner, Policy Sector, Correctional Service
Canada: I am pleased to be here on behalf of Correctional Service Canada
with my colleague, Ms. Garrow. We are here to assist in any way we can. I will
keep my introductory remarks brief; I appreciate time is short. I would like to
comment on the impacts that this bill, if passed, might have on our operations,
specifically in five areas, namely, the number of offenders affected, cost
implications, workload, correctional interventions, and impact on victims.
With respect to the numbers, as of April 25, 2010, there were 218 federal
offenders eligible for their first judicial review hearing that were not already
past their day parole eligibility date. Since the first judicial review hearing
in 1987, there have been a total of 181 court decisions. Of these cases, 148 of
the court decisions resulted in a reduction of the period that must be served
before parole eligibility. Of the 148 offenders who have had their parole
eligibility dates moved earlier, 145 have reached their revised day parole
eligibility date and 135 have been granted parole. Of these 135 offenders, 105
are currently being supervised in the community, 10 are incarcerated, 13 are
deceased, 4 have been deported, 2 are being temporarily detained, and 1 is on
For the year 2009-10 — and, this is a one-year data snapshot — the average
age of the incarcerated population convicted of first degree murder, or with a
25-year restriction on parole eligibility, is 45, and the average age of their
first release is 53. The average age of the incarcerated population convicted of
second degree murder, and with a 16-year to 25- year restriction on parole
eligibility — that is, eligible for judicial review — is 44, and the average age
of their first release is 45.
In terms of financial impact, the repeal of the faint hope clause would
increase the length of time offenders serving a life sentence spend in federal
custody. However, most of the cost impact would not be apparent for
approximately 15 years, as this is the time that newly sentenced offenders
currently have to wait before they can apply. Given this time frame and the
variables that CSC must factor into a cost estimate, such as the annual cost of
maintaining an offender and staff salaries, it is not possible to accurately
forecast the additional costs. I gave the numbers earlier. It is a relatively
small number of offenders that receive reductions in terms of eligibility date.
In terms of workload, the proposed legislation could alleviate some of the
administrative work for our staff. Currently, the judicial review summary report
is a comprehensive summary of all CSC file documentation on an offender, which
is prepared for submission to the provincial court to support the judge and jury
in making a decision. With the proposed amendments to the Criminal Code, this
detailed work would eventually no longer need to be done.
With respect to correctional interventions, we can only speculate on the
short- and long-term effects the proposed legislation may have on the offender
population. Among the things that we would be watching for is, first, an
increase in institutional incidents by offenders who may no longer perceive a
need to establish appropriate institutional functioning; second, any diminished
level of motivation of some offenders to pursue their correctional plans due to
the loss of the possibility of judicial review; third, any reduced demand for
programs because offenders may not be as motivated to take programs; and,
fourth, any increase of clinical depression or exacerbation of mental health
To mitigate these risks, CSC can develop a strategy specifically for those
offenders affected that combines meaningful activities with monitoring,
identification and risk management. This strategy can include, for example,
adjustments to correctional plans for those offenders serving life sentences;
and psychological and other support to offenders to cope with reduced optimism
and motivation for an earlier release.
Finally, for current offenders for whom the judicial review regime would
still be applicable, the longer waiting period to reapply after an initial
rejection could bring more peace of mind to victims' loved ones because
unsuccessful applicants would be able to apply only twice — once when they
become eligible at the 15-year mark of their sentence and once more at the
20-year mark. Currently, unsuccessful applicants may apply a total of five
times, namely, at the 15-, 17-, 19-, 21- and 23-year marks. CSC's victim
services officers would continue to provide services to victims with ongoing
information about the offender who harmed them and information pertaining to the
federal correctional system.
This concludes my opening remarks. I will do my best to respond to your
questions, along with Ms. Garrow. We will try to answer as many questions as we
can, but I undertake that, if we cannot respond to any today, we will do our
best to go back and construct an answer for you at the earliest possibility. You
mentioned there are limitations of time. If that is helpful as an open-ended
offer around statistics, let us know what you need and we will do our best with
what we have to get answers for you.
The Chair: That is very comforting. We will begin with Senator
Senator Carstairs: The bill in fact has two parts. The first would
deny eligibility for new offences for the faint hope clause; the other would
tighten provisions for those who are presently eligible for faint hope and would
continue to be because the law is not retroactive. It is that area I want to
speak with you about.
The government has imposed 90 days from the day when the person's 15 years is
up to when they can make the application for the faint hope clause or else they
lose that opportunity. In your experience, is that realistic? First, are all
those offenders knowledgeable about exactly when their date of 15 years expires?
Is it possible for them to get the kind of legal counsel and support that they
would require to make that application all within 90 days?
Mr. McCowan: I will turn it over to my colleague, Ms. Garrow, in a
second. Generally, I take the thrust of your question. Anytime there is
legislative change of this nature, it is incumbent upon CSC and the other
organizations in the criminal justice system to adjust to what the new realities
In terms of trying to create a process that would allow for that 90-day
window to be respected, we would have to work to adjust our processes to ensure
that that could happen. If we were unable to do so, I am sure there would be
individuals who would take us to court. With all such legislative changes, I am
confident that we can adjust our processes to ensure that we give life to a
legislative scheme, if that is what Parliament passes in relation to the
Perhaps Ms. Garrow would like to comment more on the issue of what we do in
terms of preparing for that under the current scheme.
Lynn Garrow, Associate Assistant Commissioner, Policy Section,
Correctional Service Canada: Currently, the onus remains with the offender
to decide and prepare his case and seek legal assistance. We have a BF, bring
forward, system. We have an automated management offender system, so we know
when the date comes up. We actually BF it a year in advance and we talk to the
offender in terms of whether they are considering applying. Everyone has an
individual parole officer assigned to them, so there is discussion between the
parole officer and the offender.
There is also information in our libraries, for example, the commissioner's
directives are in all inmate libraries. There is a commissioner's directive on
the judicial review process and our staff is knowledgeable about our role to
speak competently to offenders. Adjustments would have to be made, for example,
if there is a three-month window, 90 days, we would have to make a concerted
effort to ensure that offenders were aware of this. However, we have had
legislative changes many times and have worked hard to educate our offenders.
Mr. McCowan: As Ms. Garrow mentioned, there is a commissioner's
directive that governs how we put this information together. That would be the
vehicle to ensure we have the process that would allow the time frames that you
indicated to be respected.
Senator Carstairs: I am a little amused about the comment of the
information being available in libraries. The recent statistics that I have
state that the illiteracy rates among inmates is extremely high. While
information may be available in libraries, not many of them can actually use it.
Ms. Garrow: The illiteracy rate is higher than in the general
population; you are correct. As I said earlier, however, each individual
offender has a parole officer with whom they meet regularly. If there are
offenders who are completely illiterate, we would and do work to make them
become literate and to ensure that they understand their rights and
responsibilities surrounding the judicial review, as we would with anything
Senator Carstairs: I will pass because I will just get involved in
discussions of literacy, which will go nowhere.
Senator Boisvenu: I would like to bring up two points. First, an
institutional head's authority and also, the case I mentioned earlier, statutory
We know that a person convicted of first degree murder receives a life
sentence, 25 years without eligibility for parole, but after having served 15
years, criminals are allowed a privilege. In the case of second degree murder,
sentences often range between ten and twenty years.
Does an institutional head have the authority to grant an escorted temporary
leave to an inmate who has served 50 per cent of his sentence without having to
go through the National Parole Board?
Mr. McCowan: I do not have the provisions of the Criminal Code in
front of me, so I am working from memory. I think it might be section 748.
Escorted temporary accesses, ETAs, are always available if granted by the
National Parole Board. They can be granted, I believe, by CSC for medical and
court reasons early on. It is only when you get to three years before the end
that there is a greater scope for CSC to do granting of escorted temporary
absences. Again, I am sorry; I do not have that provision with me.
Senator Baker: You are right.
The Chair: You can start drafting notes now for the letter that you
will write to us.
Mr. McCowan: I will undertake to give you a good summary of what the
rules are around escorted temporary absences in terms of a summary.
Senator Boisvenu: Is it not true that in the case of second degree
murder, an offender can obtain a hearing before the National Parole Board after
having served 50 per cent of his sentence?
Mr. McCowan: There are different provisions that attach to second
Senator Boisvenu: They differ from first degree?
M. McCowan: Yes.
Senator Boisvenu: He can, after having served one-third of his
sentence, apply for temporary absence or leave?
Mr. McCowan: It would depend on the specific condition attached to the
conviction. It is possible to get a parole and eligibility of up to 25 years.
You are correct. There are differences between first and second degree.
Senator Boisvenu: The two systems are completely different: murder in
the first degree and murder in the second degree. And so, they cannot be
considered in the same way.
M. McCowan: That is right.
Senator Boisvenu: My question has to do with statutory release. This
morning, I mentioned one case in particular. I put the question to the
representatives of the National Parole Board who told me that they are not
responsible for statutory release. The penitentiary advises the Board and there
is a brief review.
Are you aware of the murder of an 83 year-old man, in Armagh, Québec, a few
weeks ago? A criminal, Mr. Blais, was on statutory release after having served
two-thirds of his sentence, despite a prison file that indicated the risk of re-
offending was extremely high.
Mr. McCowan: I am only familiar with the case in general terms. I do
not know the details.
Senator Boisvenu: When there is a mistake of this nature, what is the
level of accountability of the prison system?
Mr. McCowan: I will speak generally rather than in relation to the
Correctional Services Canada and the National Parole Board have an advanced
system of risk analysis developed over many years. They do their very best in
all decision making.
Senator Boisvenu: Madam Chair, that is not the point. The point is,
when a person is murdered, and when all the information necessary to prevent it
was available, what are the consequences for the manager who decided to release
the individual, when the Criminal Code allows further detention? What are the
consequences for the prison system?
Mr. McCowan: Senator, again, I cannot comment on this specific case as
I do not know the details.
Generally, we do hard-hitting investigations when situations like this happen
that are designed to investigate whether there were any difficulties, problems
or non-compliance with policy or inappropriate judgments in relation to the
given case. Those investigations are looked at seriously by senior management to
analyze what happened in any specific case.
I can assure you that whenever a tragedy of the nature you described happens,
we look at it very seriously. As a service, we must ensure that, if something
should have been done differently, we learn from that for the future.
Senator Boisvenu: Thank you.
Senator Baker: I have a point for clarification. Senator Carstairs'
question related to a provision in this bill that, if someone served 15 years,
on the day of the passage of this bill, they will have 90 days to make
application for early release. You will not have the time you normally devote to
preparing your summary report to the trial judge. The person that Senator
Carstairs referenced will probably not have time to make application. I think
that this will be codified was the substance of the senator's question.
Do you wish to add anything to your previous answer?
Mr. McCowan: Whatever Parliament passes into law, we will respond to
do our best to ensure a process is in place to respect the process Parliament
Senator Baker: You referenced the judicial review preparation in which
you give a ``summary report'' to the judge. Is that to the judge who hears the
initial application for early parole or is it the judge in front of the
Mr. McCowan: From reading the commissioner's directive, it is supposed
to be a comprehensive impartial summary of all CSC file documentation on the
offender. It is prepared for submission to the provincial court to support the
judge and jury in making a decision regarding judicial review. That suggests to
me the summary is used for both of the first two phases. However, I will have to
confirm that and I am happy to do so in our growing list of undertakings.
Senator Baker: I think you will find when you check that it is usually
the same judge, although evidence was given to the committee that it is
different judges. I think you will find it is the normally the same judge
because the chief justice makes the decision and assigns a judge. The judge
continues with the jury.
Is the application for early release made by the person convicted of murder
complicated? Mr. McCowan, you know from past experience that to make an
application to the court is a rather complex matter — you need a factum. It is
usually prescribed by the rules of the court in whatever court you are entering.
Is that your understanding of what the applicant would have to do in this case?
Mr. McCowan: First, it is our understanding from the framework we
developed that we produce a comprehensive document. This is an important and
significant decision being considered. It is important to bring all relevant
information to bear on that decision.
Having said that, this information exists for different decision-making
processes within our system. It is not a question of starting from scratch.
The blunt answer to your question whether this is a comprehensive document is
yes. Given the nature of the decision, we do everything in our power to put the
relevant information before the court.
Senator Baker: Do the rules that apply to the applicant demand that
the applicant submit a comprehensive document following rules of court, which
are different for the Federal Court, provincial courts and the Supreme Court.
Those rules are specific when you make an application about what is contained in
Mr. McCowan: I have never come at this question from the applicant's
perspective. I can certainly undertake to do that and provide the committee our
best understanding of what is involved. However, we would not have any direct
role in that.
Senator Baker: I congratulate you on your excellent submission to the
committee and for the excellent work you and your staff who appear at these
hearings do. You mentioned in your report that in preparation for passage of
this bill, it will mean, perhaps, that matters may change within Correctional
Services Canada and that you anticipate making changes.
One of the main reasons early parole provisions were introduced was for the
protection and safety of guards. I do not know if you are aware of that. The
measure gave faint hope to the persons affected.
You indicated 15 years; can you estimate the cost in how it will affect the
system? Do you anticipate things apart from financial resources, given you will
have more people in the prisons serving more than 15 years? Are there any other
considerations along the line of protection of guards that you might offer?
Mr. McCowan: I flagged an item in my comments that goes to the heart
of what you ask. We will monitor whether there is a shift in terms of
institutional incidents by offenders in this situation or diminished levels of
motivation. These are factors we will look at.
In the overall picture since 1987, there have been a total of 148 decisions
resulting in reduced parole eligibility. About 20 per cent of our population is
serving time for first or second degree murder. I understand the factor, and it
is something we will watch. However, you have to put it in the context of the
number of people we are talking about relative to the number of people in the
system as a whole who are serving time for first and second degree murder.
The Chair: Senator Runciman, you are next, but if would you allow me a
supplementary to Senator Baker's first question, having to do basically with the
time necessary to get the system in gear to respond to this legislation.
Do you know how many people now incarcerated are coming up to that magic
15-year date, at which point the 90- day provision would kick in, within, let us
say, by the end of this year? That may simplify the search slightly. That would
give us an indication of how much scrambling will have to be done to get things
ready. In other words, this is what I am trying to figure out. There are not
many people, but how many will be subject to this guillotine requirement?
Second, this bill is drafted to come into force on a date to be fixed by the
Governor-in-Council. If you had your druthers, how long a delay would you like
to have between Royal Assent and its coming into force?
Mr. McCowan: With respect to your first question, we will have to
undertake to get back to you.
I know the answer to the second question in terms of the number of
individuals between the 15- to 25-year eligibility, which is 218. Those are
people who are in that window. You said there is another group of people who are
coming up, so I will undertake to look at that in a time frame of one year.
The Chair: Whatever reasonable time frame you can readily pull the
statistics for would be fine for my purposes.
Mr. McCowan: In terms of the Governor-in-Council question, we will
make this work. Is longer better than shorter? Sure. I want to give you our
assurances that whatever date is chosen, we will ensure that the process does
justice to the decision making in question.
Senator Runciman: This is a follow up to Senator Boisvenu's comments
about temporary absences.
My understanding is that under the Corrections and Conditional Release Act,
wardens have broad discretion with respect to temporary absences. Perhaps you
can get back to us on that and we can get some clarification. I do not think
they have to go to the NPB for approval. The difference is lifers.
Mr. McCowan: You are absolutely correct that, in terms of escorted
temporary absences broadly, greater powers are given under the CCRA. The
Criminal Code imposes considerable additional tightening in terms of escorted
temporary absences for those convicted of life sentences. We will provide you
the specifics. I apologize that I do not have them with me.
Senator Runciman: Are there any statistics with respect to offenders
on statutory release having higher reoffending rates than those who have been
Mr. McCowan: We publish on a yearly basis statistics in terms of the
various categories. Certainly, for the offenders who are on statutory release,
rates have been published.
Senator Runciman: Perhaps you could provide those for us.
Mr. McCowan: Absolutely.
Senator Runciman: In terms of the day release, we are getting away
from lifers, but this could deal with lifers as well if the NPB gives approval.
I assume in those situations that these would be escorted temporary absences, or
does this vary? I understand that escorts are not always prison guards. They can
be someone else; I am not sure who.
Mr. McCowan: Escorted temporary absences, in terms of the restricted
category of individuals who have been convicted of murder, my understanding —
subject to my being able to get back to you with confirmation once I have looked
at the section of the code — is that the temporary absences are focused on three
The first category is that the National Parole Board has the authority to
grant ETAs. The second category is for individuals going out on medical escorts
or to court, they can go on ETAs under CSC authority. The final category is that
CSC has additional authorities, and I believe the window is three years —
Senator Runciman: The chair of the parole board referenced the
electronic monitoring pilot project that is underway. Could you give us an
update on that, where you see it going and its potential impacts?
Mr. McCowan: That is a subject for which there is quite a bit of
information. Could we add that to our list of undertakings? Given the time
constraints, that might be the easiest way to provide the committee what it is
Senator Carignan: I would like to clarify a few things concerning the
90 day time limitation. The law provides for a 90 day period for the submission
of an application before a judge. This timeline does not apply to the hearing
before a judge, it applies rather to the submission of an application.
What is the usual, current period, between the submission of an application
by an offender, and the actual hearing on the merits by a judge?
Mr. McCowan: I am sorry, senator; I do not. You raise a good question.
As you are aware, there are different steps in the process. There is the judge,
then the jury, and then the parole board. I do not have any statistics on hand
that deal with that particular delay, which is the first component of the
process. However, we can certainly see whether we have anything that would give
you a sense of the timelines involved.
Senator Carignan: It would also be important to be informed of the
usual period between the presentation of an application and the submission of
the files or the report to the judges. If the usual period is six months, that
will give us some idea of the number of additional applications and the timeline
before a report is submitted to the judges.
Yesterday, the Correctional Investigator seemed concerned about the aging of
the inmate population, which would chiefly bring about an increase in health
services. In your presentation, you mentioned adjustments to the psychological
support to offenders to increase motivation as well as adjustments to
Could you prepare a list of psychological and physical support services that
are made available to inmates?
Mr. McCowan: Certainly. Perhaps I could begin by indicating that under
our current legislative regime, the Corrections and Conditional Release Act, the
service is responsible for providing all inmates with essential health care. As
a starting point, we are responsible for ensuring essential health care, which
includes a whole range of things. We are talking about an inmate population that
exhibits high rates of hepatitis C and mental health conditions relative to the
general population. In terms of the basket, as you describe it, we are
responsible under our statute to provide a full range of health services to a
population whose health is not as good as the average Canadian population.
Challenges in health care exist right across the country. As an organization,
we are trying to focus on a couple of things.
We are increasingly trying to deepen and strengthen our relations with the
provincial jurisdictions in terms of the nexus of the health care and criminal
The second thing we are trying to do broadly, in terms of a strategic
approach, is to find the best practices we can, both looking at provincial
jurisdictions and in other countries around the world, to approach the
legislative obligation that we have in the best possible way and to deliver on
that, as we have been requested to do under our statute.
Senator Wallace: My question is probably a follow-up on Senator
Carignan's, and I am thinking of the resources and physically and in terms of
personal services that are provided with our institutions. In particular, I am
thinking in the context of the older, greying population within our prisons. As
was pointed out yesterday by Mr. Zinger, the Executive Director of the Office of
the Correctional Investigator, one of the impacts of Bill S-6, if implemented,
would be to increase the age of some offenders in the period of incarceration.
I am wondering if you could comment on what types of facilities and services
are available within our institutions that would address the needs of the older
or elderly population within our institutions. In particular, my understanding
is that there are significant services available that deal with wheelchair
accessibility, plumbing fixtures, which are directed to those with physical
disabilities, that certain physical requirements must now comply with federal
standards, as with all federal buildings. Can you describe that in more detail?
Yesterday, I was left with the impression that there are serious issues there.
Mr. McCowan: Thank you for the question.
Health care and mental health care are areas that we are very much focused on
as an organization.
We are proud of some of the progress we have made but, as with anything in an
issue of this nature, you are always looking to do better and improve.
In terms of framing the issue, one thing that corrections has seen
increasingly in the last while is that our population is growing at both ends. I
mean that we have an increase in the short-incarceration population — so the
two- to three- year group, for lack of a better way to describe it — and then an
increase on the aging side.
Dealing with the aging side of the equation, just to give you a couple of
statistics, it is difficult to know where you draw the line for aging offenders
when you are talking about our population. Many of them have aged more than
their chronological years, whether through health issues, substance abuse, or a
number of factors led to them having health problems earlier than what you would
see in the average Canadian population.
To give you some rough numbers, federal offenders aged 50 or more are 23 per
cent of the federal population. That is 5,204 offenders. Our total population is
22,000 and some.
In terms of the offenders 65 years or more, that is 5 per cent of the federal
population. That gives some rough markers. In terms of this growing group at the
top end, that is the group we are looking at largely in relation to the question
that you have just asked.
Those numbers are important. In terms of this particular piece of
legislation, as I said earlier in response to another question, there have been
only been 148 decisions since 1987 that have reduced parole eligibility. Against
the numbers I just gave you it is an increase, but in the broader context we
have an issue for an aging offender population.
We do a number of things as an organization to try to look, first of all, at
intake assessment to assess needs, to structure our approaches and interventions
with offenders to have the health component in mind.
Section 87 of our statute requires us to take into consideration an
offender's state of health and health care needs in all decisions affecting the
offender. There is a statutory need, beyond the obvious ethical need, to ensure
that we do our best to meet health care needs.
In terms of the institutional accommodations you mentioned, there are codes
and the like. You are absolutely right: We obviously adhere to those. We
experience challenges from time to time with some of our aging infrastructure
which was built a long time ago. We are constantly in the mode of trying to
We do things on a smaller scale, such as step stools to facilitate getting in
and out of escort vehicles, wheelchair entry accessibility to living units.
There are many things going on in our efforts to try to meet that.
I apologize, that is a very long answer to your question. The short version
is that it is something we are focused on and doing work on a number of
Ms. Garrow: The only other thing I would add is that we have our own
institutional hospitals, too. Therefore, when people get to the point, if they
require it, we have those on site. We also have arrangements with local
hospitals. If somebody is at the point where they require care that we are
unable to provide, there are arrangements in place.
Senator Wallace: As with all legislation, as you point out, looking at
148 over the last 20-some-odd years are not huge numbers. There would be an
impact with Bill C-6, and it is reassuring and not surprising that you do
consider the impact of legislation as it moves through and ensure the facilities
and services respond properly and appropriately.
Mr. McCowan: I was not trying to suggest the impact is zero. I was
trying to provide a broader context. There is a major challenge we face in terms
of health care, particularly mental health care.
The Chair: You are the court of last resort on these numbers because
preceding witnesses have all said, ``We do not know.''
The first one is — as you may have heard the exchange around the Senator
Carstairs' question with the parole board — if 80-odd per cent of the people who
would have been — or are — eligible to apply for faint hope have not been the
subject of the decision by the judge and jury, which is the second stage of the
screening process, can you tell us how many have been turned back at the first
stage of the screening process?
You go to the judge to ask to go before a judge and jury, and then ask them
to go before the parole board, and then ask them if maybe we might get parole.
We have the numbers on phases three and two. What we do not know is phase
one. Do you have numbers on phase one?
Mr. McCowan: We noted the question from Senator Carstairs when we were
in the audience. The short version is we are not sure. We may not. We will have
to go back and look.
In terms of tracking the number of people who applied, many of these files go
back some ways. The further you get back in time the more you are into
file-by-file reviews and the less certainty you will be able to provide around
Having said that, we will undertake to go back and do our best efforts in
terms of figuring out whether there is something we can provide.
The Chair: Even partial data — just an indication — anything you can
provide would be better than what we have now, which is nothing, on that
particular layer of the process.
Mr. McCowan: Understood. We will do our best.
The Chair: The second is similar to Senator Carignan's line of
questioning, although not identical. Do you know how long it takes, on average,
in total, from the time the offender comes forward and says, ``I want to make an
application,'' to the time — assuming the offender makes it through each of the
screening processes — that the parole board gives a decision?
Mr. McCowan: That is not the kind of information we would track. As I
indicated in answer to the senator's question earlier, we will do our best to
see what we can find. This could be impressions, anecdotal, general, and I do
not want to give senators any kind of indication that we have hard and fast data
that is easy to pull up. I will say that we can go back and canvass within the
organization and give you our best understanding, even if it is anecdotal and
not backed up by statistics.
The Chair: It is true that we are not talking about a large number of
people, but they are human beings for whom we all bear responsibility, so one
tries to understand the context in which all this is operating. We will be
hearing from victims. I think we will get, from that perspective, probably some
quite compelling testimony, which will be anecdotal, and there will be nothing
wrong with that.
Mr. McCowan: There are many factors the Senate and Parliament must
consider. Some of them lend themselves easily to statistics and some do not. I
think the one you mentioned in terms of victims' interests is one that is, by
its very nature, one that you have to factor in but does not reduce itself to
numbers. Nonetheless, it is an important one that needs to be considered.
The Chair: One cannot reduce grief to a number.
Mr. McCowan: Exactly.
The Chair: Colleagues, I thank you all very much. We shall meet again
in this room next Wednesday at 4:15 p.m.