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.

[English]

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 interference.

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 or CCRA.

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 law-abiding citizen.

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 person.

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 primary consideration.

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 to prison.

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 board.

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 conditional release.

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 escorted release?

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.

[Translation]

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 statutory release.

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?

[English]

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.

[Translation]

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?

[English]

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 community.

[Translation]

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.

[English]

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 are out.

[Translation]

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?

[English]

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.

[Translation]

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.

[English]

Mr. Cenaiko: Yes, I guess so, if no one knows about it.

[Translation]

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 the incident.

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 statutory framework.

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?

[English]

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 community.

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.

[Translation]

Senator Carignan: But these are murders.

[English]

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 mirrors ours?

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 the offender.

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 Court.

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 whole case.

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 consideration.

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 protecting society.

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 parole officers.

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 effective.

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 and transparency.

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 forward on.

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 in institutions.

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 reoffending.''

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 us.

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 statement.

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 standards.

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 community.

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 region.

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 breaches?

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.

[Translation]

Senator Carignan: I will pass my turn in the hope of gaining some favour!

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 responsibility?

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 this recidivism?

And finally, when a criminal convicted of theft reoffends and commits another theft, is he a recidivist?

The Chair: Who will respond?

[English]

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.

[Translation]

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?

[English]

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 are.

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 life.

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 bail.

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 problems.

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 Carstairs.

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 are.

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 judicial review.

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 else.

Senator Carstairs: I will pass because I will just get involved in discussions of literacy, which will go nowhere.

[Translation]

Senator Boisvenu: I would like to bring up two points. First, an institutional head's authority and also, the case I mentioned earlier, statutory release.

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?

[English]

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.

[Translation]

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?

[English]

Mr. McCowan: There are different provisions that attach to second degree murder.

[Translation]

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?

[English]

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.

[Translation]

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.

[English]

Mr. McCowan: I am only familiar with the case in general terms. I do not know the details.

[Translation]

Senator Boisvenu: When there is a mistake of this nature, what is the level of accountability of the prison system?

[English]

Mr. McCowan: I will speak generally rather than in relation to the specific case.

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.

[Translation]

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?

[English]

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 approves.

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 12-person jury?

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 it.

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 detained?

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 different categories.

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 looking for.

[Translation]

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?

[English]

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.

[Translation]

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 correctional plans.

Could you prepare a list of psychological and physical support services that are made available to inmates?

[English]

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 justice systems.

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 improve.

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 different fronts.

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 the numbers.

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.

(The committee adjourned.)