Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 24 - Evidence for March 21, 2011


OTTAWA, Monday, March 21, 2011

The Senate Standing Committee on Legal and Constitutional Affairs met this day at 11:15 a.m. to study Bill C-59, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other acts.

Senator Joan Fraser (Chair) is in the chair.

[Translation]

The Chair: Honourable senators, welcome to the Senate Standing Committee on Legal and Constitutional Affairs. This morning we begin our study of Bill C-59, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other acts.

[English]

We are pleased to have as our first witness the Honourable Vic Toews, the Minister of Public Safety. Welcome to the committee, minister. I think you have an opening statement.

Hon. Vic Toews, P.C., M.P., Minister of Public Safety: I do, thank you, Madam Chair. It is my great pleasure to be here. I would also like to thank the members of the committee for the invitation to discuss Bill C-59, the Abolition of Early Parole Act. I am pleased to be joined by Mary Campbell, the Director General for the Corrections Directorate.

Committee members will know that one of our government's strongest commitments to Canadians has been to stand up for victims of crime and ensure their voices are heard in the criminal justice system. We told Canadians when we were first elected that we would take the necessary steps to ensure our streets and communities are safer places for everyone. We have delivered on this pledge by cracking down on crime and by giving law enforcement officials the tools and resources they need to do their job. Bill C-59 builds on this impressive track record and will go a long way to help ensure that the justice system works the way it should.

Madam Chair, over the past few months, all Canadians have heard about the need to crack down on crime, such as fraud in particular. We have heard from Canadians across the country that the sentences given to so-called white-collar criminals need to be stiffer and that serious crime should get serious jail time. That is what Bill C-59 is all about. The legislation our government is proposing will put an end to any kind of special treatment for white-collar offenders who commit fraud or other so-called nonviolent crimes. What we are saying is that these crimes are just as serious and just as devastating to victims as violent crimes.

What we have heard during the course of debate in the other place is that people who commit fraud today can benefit from early release under the current system of parole. Accelerated parole review means these offenders can be released on day parole after serving just one sixth of their sentence, and full parole after serving one third of their sentence.

Victims told us, and we agree, that this practice is unacceptable; it is not what they want, and it is not justice. Victims and law-abiding Canadians want serious time handed out for serious crimes, including fraud. The reforms our government is proposing will do that by eliminating APR — accelerated parole review — so that people who commit fraud serve a more meaningful sentence than they do today.

Today, white-collar offenders receive what sounds like an appropriate sentence. It sounds tough; it looks tough. It looks like the justice system is doing what it should in terms of sending a message that white-collar crimes are serious and should be punished accordingly.

Thanks to the accelerated parole review, however, an offender who receives, for example, a 12-year sentence for scamming Canadians out of millions of dollars might be out on day parole in as little as two years. I am happy to explain in further detail how the present system works.

Let us say, for example, that an offender commits an armed robbery or other violent crime. I believe we would all agree that this type of offence should be punishable and that the offender in this case should serve some meaningful amount of jail time so that our streets are safer and the offender has a chance to rejoin society as a law-abiding citizen.

That is indeed what happens. In most cases, day parole can be granted six months before full parole — that is, after one third of a sentence has been served or a maximum of seven years. In these cases, the Parole Board of Canada can decide after meeting with an offender that he or she is unlikely to commit any other kind of offence and has taken the necessary steps to become a law-abiding citizen. It might then decide that granting that person day parole would be in everyone's best interests.

Similarly, full parole can be granted after an offender has served one third of a sentence, or seven years, whichever is less. As the Correctional Service of Canada Review Panel noted in its 2007 report, parole in these cases is a privilege, not a right, and is granted at the discretion of the Parole Board of Canada.

I want to repeat, Madam Chair, that our government believes that being granted parole is a privilege that should be earned, rather than a right granted to any offender, regardless of the nature of the offence or whether he or she is rehabilitated.

The problem with the current system of accelerated parole review is that it is presumptive, regardless of how many victims have been left in the wake of those crimes. Under the accelerated parole review system, white-collar offenders can and often do receive day parole and even full parole in quite a different way from other offenders.

Unlike other offenders, those eligible for accelerated parole review are not required to apply to the Parole Board of Canada for day parole. In fact, the Corrections and Conditional Release Act stipulates that the Correctional Service of Canada must refer the cases of offenders eligible for APR to the Parole Board of Canada before their day parole eligibility date after serving one sixth of their sentence so that they can be released into the community as quickly as possible.

Under the rules today, this means an offender who has defrauded Canadians out of millions of dollars is not required to ask or even apply for day parole. It all happens automatically. An offender who is eligible for accelerated parole review also benefits from presumption in favour of parole from the onset. The Parole Board of Canada is required to release the offender on parole unless the board finds reasonable grounds to believe the offender will commit a crime involving violence before the expiration of his sentence.

Let me repeat that particular provision for all honourable committee members: In order to refuse to grant day parole to a white-collar offender who has served as little as one sixth of his sentence, the board has to believe that someone who is not incarcerated for an offence involving physical violence will commit a violent offence once he is released.

As members can see, the difference between APR and regular parole is that white-collar offenders need only show they will not commit a violent offence before the legal expiration of their sentence. Other offenders have to convince the parole board that they will not commit any other offences, violent or not. As a result, even if the parole board believes the offender is likely to commit another fraud, theft or drug offence, it is compelled to release them.

Our government has heard from many Canadians that this system does not make sense. That is why victims are demanding change and why we are taking action.

Our government does not believe that any offender should be granted special consideration just because he or she was convicted of a non-violent offence; we believe that all offenders should be held to account for their actions. Our government believes that, in all cases, parole should be considered a privilege to be earned rather than a right to be expected, and that is why we are moving forward with Bill C-59. This bill will ensure that all offenders are held to account for their actions. It will do away with the current system of accelerated parole review.

Under the reforms we are proposing, white-collar offenders will need to meet with the Parole Board of Canada in person if they wish to apply for parole, rather than benefitting from the current paper review, which makes getting parole that much easier for them today. Bill C-59 will mean that white-collar offenders will be eligible for and will have to apply for parole in the same way and at the same time periods as other offenders.

The message our government is sending with these reforms is simple. Madam Chair, we are saying that our government is determined to continue cracking down on crime, and that includes white-collar crimes such as fraud. We are saying that the rights of victims come first and that some offenders should not be treated differently just because they were convicted of a non-violent offence. We are saying that Canadians are right when they tell us they are tired of reading headlines about white-collar offenders being released on day parole before the ink pronouncing their conviction has dried. Most of all, we are saying that ours is a government that listens to Canadians and one that takes decisive action.

Thank you, Madam Chair. I would be happy to answer any questions at this time.

The Chair: Thank you, Mr. Minister. Colleagues, you will notice that with the minister is Ms. Mary Campbell, who is familiar to many of us. She is the Director General of the Corrections Directorate at Public Safety Canada. I understand there is also a small phalanx of other experts available should you have questions for them.

Senator Wallace: Thank you very much for the presentation. When I read Bill C-59, as well as much of the material behind it and the rationale that supports it, there is a sense in the public that justice is not being served with the current system that deals with accelerated parole review. That day parole could be granted to some people after one sixth of a sentence seems to some disrespectful of our justice system; it leads to injustice and clearly does not recognize the realities of the victims. You have touched upon that in your presentation, but I am wondering if you would care to comment further.

The integrity of our justice system is paramount to everything we do. I wonder how you see Bill C-59 in that context.

Mr. Toews: I think this gets back to the whole concept of what parole is. Is it automatically granted, or should it be earned by individuals? If you ask ordinary Canadians, they would say that, whatever the offence, an offender should not be released until that offender is on parole — specifically, until that offender has demonstrated that he or she is no longer a risk to society.

Were you also to ask Canadians whether it should make a difference whether the crime is violent or non-violent, in light of the many recent experiences we have heard about, such as massive frauds by certain individuals, including one with particular notoriety in the Montreal area, Canadians would say it is every bit as devastating, although perhaps not in exactly the same way. However, I think they would maintain it is every bit as devastating if an individual is released and then commits another fraud, stealing people's life savings.

We think that Canadians are fully supportive of the concept of having to earn one's parole, the concept that it is not a right, and that they believe that giving parole automatically brings the administration of justice into disrepute and undermines the principles on which our criminal justice system is based.

Senator Wallace: As I read Bill C-59, one of the consequences of the bill is that it would treat all offenders — whether first-time or repeat offenders or whether the crime involves violence or otherwise — would be required to justify their application for parole to the Parole Board of Canada. The board would consider the factors and apply constant criteria to all offenders.

That seems reasonable to me, and it seems to be consistent with many of the points that have been made around this committee table when other law and order bills have been considered.

What is your comment on that? How significant is that and has that been in the preparation of Bill C-59?

Mr. Toews: It is very significant. Let us understand that the distinction between violent and non-violent crimes is often very artificial, especially when you see how the offences are dealt with in a court.

You are a lawyer of some years of experience. I was a Crown attorney. I know the system whereby a lawyer looks at the offences that his or her client is facing and asks, "Mr. Crown Attorney, what do you want in terms of the overall sentence?" What sentence will be served is the question the criminal is most interested in. If the sentence is 10 years, in many open and shut cases, the lawyer will say, "That is fine; however, let me choose which offences he will plead to." The lawyer will choose all of the offences that are categorized as non-violent. The violent ones will be stayed.

The fact that the individual pleads to the so-called non-violent offences does not make him any less violent or any less prone to committing offences.

This bill very rightfully gets away from the gaming of the system. It actually looks at the individual, who the individual is, and what concerns must be addresses with regard to this individual. There are no presumptive applications of law when it comes to parole. The individual must demonstrate that parole. Whether it is a violent offence or a non-violent one, the individual must be fit to be back in society.

For that reason alone, it is important that these amendments are taken. It ends an artificial distinction between violent and non-violent, especially when you know what is going on in the court system itself.

Senator Wallace: The highlighting of the distinction between violent and non-violent offenders is interesting. With regard to the debate that took place in the House of Commons committee on this very same bill, there seemed to be some opposing this bill who felt that penitentiaries should have no place and no consequence for those involved in non- violent offences. I found that surprising.

Mr. Toews: I agree. Many of the victims of these sophisticated fraud criminals would agree. The fact that their life savings have been destroyed is no less devastating than having been physically assaulted in some way or having their residence broken into.

Senator Wallace: Indeed.

Senator Baker: I would like to welcome the minister before the Senate committee once again. He has been here many times. We are perhaps in the last stages of Parliament, and perhaps in the final week, some people believe. The minister will note that he is the first witness today in a marathon 10 hours of hearings before this Senate committee, which will amount to about three times as much time as was spent in the other place dealing with the bill. I especially want to welcome him here for that.

My question pertains to the coming into force of these new provisions. To whom will this new provision apply?

Mr. Toews: The date of the coming into force is, on proclamation, to be fixed by order of the Governor-in-Council. If the bill is passed, that could be done immediately afterwards. That would be a welcome change.

In terms of changing the circumstances, this bill applies to anyone who is presently in prison or in jail on a so-called non-violent offence. It changes the rules for everyone so that the rules are the same whether you have been incarcerated for a so-called violent offence or a non-violent offence.

The bill also applies retrospectively. It applies to all prisoners currently serving a sentence.

Some concerns had been raised about whether this type of provision met the constitutional standards of the Canadian Charter of Rights and Freedoms. The related bill, Bill C-39, is not retrospective in its application. However, Bill C-59 is. This provision was specifically discussed with the opposition party that supported this bill. I take the position that indeed it does meet the constitutional standard. This is not retroactively imposing a new penalty. Rather, it deals with the administration of a sentence going forward.

Senator Baker: The reason we are interested in this is that it brings up the question of constitutionality. The original bill introduced in 2009 was not retrospective in its application. What made you change your mind?

Mr. Toews: I have to give credit where credit is due. The Bloc Québécois were quite insistent that it be retrospective in application. It was something for which I had sympathy. It is not that I have changed my position on this. However, when one sees an opportunity to do what should be done with the support of an opposition party, it should not be passed up.

Senator Baker: Retrospective legislation has been struck down many times by the Supreme Court of Canada in many instances. It has been classified in some cases as being retroactive in nature because of its very application.

In one of the first cases in Canada in which retrospective legislation was argued, you prosecuted the chartered banks for the application of the labour laws in a particular province. I hoped you would win that argument, but you lost.

Mr. Toews: I lost.

Senator Baker: You lost the argument.

Mr. Toews: I did.

Senator Baker: You were the litigator and wanted to make it retrospective in application. Overtime rules should be changed and the labour standards of the charter bank should respect —

The Chair: Senator Baker, I am terribly sorry. This is an important topic. However, I have been told that our wonderful interpreters have been translating "retrospective" as "rétroactif," and what we would wish — Senator Carignan, will you confirm this — is "rétrospectif."

[Translation]

Senator Carignan: I notice that the interpreters have been translating the English word "retrospective" by "rétroactif," which is an important difference arising from the constitutional nature of the bill. I would like to ensure that the English word "retrospective" is translated as "rétrospectif" in French. The difference in this case is so important that I wanted to make this clarification with regard to the interpretation.

[English]

The Chair: I am sorry for interrupting. For those following the translation of your argument, it is an important point.

Senator Baker: It is very important. Senator Carignan is particularly interested in this because he is quoted from the Quebec Court of Appeal on this matter of what is retrospective and what is retroactive in legislation.

Minister, you tried at that time and everybody hoped you would win. However, you lost on the application of that particular law.

You have said that under the present law, a one sixth release APR is automatically given for non-violent offenders. Those offenders convicted and sentenced prior to the coming into force of this act are in prison, and there is a presumption of an automatic release coming after one sixth. This proposed law would change that.

Have you turned your mind to the possibility that it would amount to a serious question before the courts? On a balance of probabilities, they will probably rule the way they ruled against you before, that it is unconstitutional. Can you not see the substance of that argument that will obviously be made against this proposed legislation?

Mr. Toews: I can see the substance of the argument. There is a stronger argument to be made that if one views parole as not a right but something to be earned, this provision deals with the administration of a sentence imposed in the past going forward into the future. As long as it is not seen that a person has a right but that parole itself is a privilege that is granted, then I believe the argument is a strong one.

I have been told on many occasions that the arguments I have made have problems with them. I have gone to the courts and have made the arguments, and we have been successful. Therefore, in my opinion, there is a better-than-even chance that we will win with the legislation. It is certainly consistent with our government's philosophy about the concept or the practice of parole.

Senator Baker: In other words, you are saying it is not a part of the sentence, and you are saying that even if it violated the Charter, it should be saved under section 1 of the Charter. Is that what you are saying?

Mr. Toews: That would certainly be my backup argument. On a prima facie basis, there is no breach of one of the substantive Charter rights, and this not simply saved under section 1. This is not a breach because it is not retroactive. It does not impose retroactively a penalty on someone in the past. It deals with the administration of a sentence in place going forward into the future.

Senator Baker: Will you be litigating that on behalf of the government when this happens?

Mr. Toews: There are many lawyers more competent than I am. It is an interesting case, and it is an argument well worth making, especially for some of the victims who have been victimized by individuals presently in prison who are banking on receiving this privilege, which we believe should not be in place.

Senator Runciman: I was intending to raise the retrospective issue. It has been a feature of Senator Baker's questions on legislation that has come before us.

I appreciate your explanation with respect to the rationale. I have to agree about the impact of the early release of some of these individuals. We saw the outrage regarding Vincent Lacroix, and I am heartened to hear your view of the better-than-even chance of winning upon appeal, which is expected to occur. I am certain the individuals looking at Mr. Jones now sitting in an institution would also be pleased to know that you have that position and that it has been incorporated into the legislation.

You said "white-collar" a couple of times in your comments, but could you confirm that this is not limited to so- called white-collar criminals? The current law applies to drug traffickers, cultivators, and those folks who import illegal drugs. They could also walk quickly from an institution for very serious crimes.

Mr. Toews: That is correct. Perhaps Ms. Campbell can enlighten us on some of the other offences, but drug offences are one of the so-called non-violent crimes where the criminals benefit from this particular review process.

Mary Campbell, Director General, Corrections Directorate, Public Safety Canada: That is correct, unless they have been the subject of a judicial order for parole at one half of the sentence, which is a small category. Otherwise, drug offenders are eligible for APR.

Senator Runciman: What other types of offenders would it capture?

Ms. Campbell: It is applicable to virtually everyone outside of those convicted of offences under Schedule I to the Corrections and Conditional Release Act, which includes assaults, robbery and any offence involving physical harm.

Mr. Toews: It is my understanding that break and enters are also available for accelerated parole review. Individuals who break into dwelling houses of people are eligible for accelerated parole review after one sixth of their sentence. I cannot think of a more heinous crime than breaking into someone's residence. I know of your experience in the area of law and law enforcement and with the trauma that individuals go through when their home has been broken into, especially senior citizens. They are never the same. Many of those seniors can never move back into their home because of the trauma they go through when someone breaks into their home. For anyone to categorize a break and enter into a dwelling house as non-violent is simply unacceptable.

Senator Runciman: That is correct. I have talked to victims over the years who have had that experience, and it is very difficult to go back into the home after that occurs.

I believe the bill addresses this, but in terms of a first offender under the current legislation, he or she could have been convicted 10 times of fraud or have a string of drug convictions but served their time in a provincial institution, so that would not have any bearing with respect to an APR. Your bill will now address that situation. Am I correct in that?

Mr. Toews: Yes, your summary is correct. They are still eligible under the accelerated parole review in the circumstance that you have outlined, although it is said that the circumstances of those past convictions in a provincial institute can be taken into account. The presumption is still the same. The presumption is that these individuals will be released.

Senator Lang: I believe this bill is a revelation to many Canadians. I can speak for myself prior to coming to the Senate. When I heard that someone was sentenced to 10 or 12 years, I assumed that he or she would be serving a substantial portion of that time prior to any thought of parole. Frankly, I think most Canadians believe that. In my opinion, revelations from Quebec in the past have brought the integrity of the judicial system into question. It almost seems as though, in some cases, we are playing smoke and mirrors or, as you referred to, gaming of the system, where the actual penalty or the consequences of the offence are minimal compared to what the public believed the sentence was.

I want to go into one area. The Correctional Service of Canada Review Panel, in 2007, recommended the abolition of the APR and cited the fact that the offenders granted parole under that procedure generally had a higher rate of recidivism than other offenders. Would you like to comment on that?

I found it interesting that those given this type of early parole had a higher likelihood of repeating. I would have thought it would be the opposite, if you accept the argument on the other side that this is a good piece of legislation in place at the present time.

Mr. Toews: I am not familiar with that finding. My understanding has been that the rate of recidivism is relatively the same. I have had a discussion with Senator Boisvenu about what constitutes recidivism, and I have raised these issues with the Commissioner of the Correctional Service of Canada. What constitutes recidivism?

A point raised earlier was that provincial time served is not taken into account in the same way as federal time served.

There are all kinds of ways to define recidivism. I understand from Senator Boisvenu, and these are discussions I am having with the Correctional Service of Canada, that you are not considered a recidivist if you do not commit an offence during the time for which you are under the warrant of committal. If you serve your entire 10 years, for example, even if you are out on parole for the last half or 6 of those years, as long as that has expired and you come back into the system, you are not a recidivist. There is some question about that.

As I understand it, the recidivism rate in the federal correctional institutions is about 12 per cent. Why is it that when you go there and actually ask people, 50 per cent of them have been there before? It is how they define recidivism.

Without getting into those details, and I have to get my head around exactly how they determine recidivism, I can say that the rate of recidivism for property offences is, in my opinion, at least, the same as it is for violent offences.

Another point was made a number of years ago in a committee when we were looking at the whole issue of DNA and the National Sex Offender Registry. The government of the day said it did not want all these individuals who commit break and enters, for example, to have to give DNA because it is a non-violent offence. The expert opinion that came out of Great Britain said that distinction is a red herring; it is irrelevant. The people breaking into houses are just as likely to commit some other kind of offence in the violent category. Therefore, DNA taken from individuals who commit break and enters, as is done in Great Britain, is often instrumental in solving crimes that are violent in nature.

You can think, senator, about what the difference is between a break and enter and a home invasion. Often the only difference is that in the home invasion an individual was home and then becomes the victim of a very terrifying event.

In my opinion, if someone is prepared to break into someone else's home, they should be prepared to take the consequences as though it were a violent offence against an individual.

The Chair: We are getting kind of tight on time, so please keep your questions and answers succinct.

Mr. Toews: I will shorten my answers.

The Chair: I have a supplementary to Senator Lang's question, but I will restrain myself for a moment.

Senator Lang: I have an observation to start. I could not agree more with the minister. One has to have it happen to really understand the experience of someone coming into your home or onto your property in the middle of the night. I had that experience, in part, and I can tell you it was very unsettling. That word does not really describe it; it was it was a real violation.

I want to go back to the reason for the bill and the issue of repeat offenders. I want to use the word "repeat" instead of "recidivist," which many people do not understand, but it is the offender who has done it more than once.

It seems to me that under this accelerated parole review program presently in place, you have the same number, if not more, repeat offenders as you do in the normal course of events, the way it is set up for applying for parole. I would like to hear your comments, but it seems to me this gives more weight to the need for a change to the present law so that it applies evenly to all those who have been convicted of an offence, in support of that argument and the argument you are putting forward.

Mr. Toews: I think so. I think this allows the parole board to look at the offender as a whole and consider whether it is a violent or a non-violent offence, whether it is all mixed up together. The board can look at the individual as a whole and determine the risk to society of releasing that individual, considering whatever crime that individual has committed and may commit in the future. It puts everyone on a level playing field, and it gives the parole board the jurisdiction to look at the offender in a more substantive way rather than in what I consider a legally technical way.

[Translation]

Senator Hervieux-Payette: One of the things that brings me here this morning, because I am not a permanent member of this committee, is what this bill implies for women and especially the impact it will have on them.

As far as I know, there have not been many white-collar crimes worth over a million dollars committed by women, especially since most of the women in question are aboriginal persons who generally commit economic crimes involving small amounts. They are still crimes, but they are often directly linked to poverty.

As a Canadian citizen, I must say that I am troubled by what this bill implies for women, and even more troubled to learn that this bill will keep hundreds of women with children in prison, women who must return to their communities to receive treatment, because often, they have drug or alcohol problems.

Mr. Minister, I would like to know why you did not take this into account when drafting this bill, and why you did not specify an amount for white-collar criminals, given that it is specifically this clientele that you are targeting?

[English]

Mr. Toews: The bill targets only criminals. It does not target people on the basis of race or gender. It targets criminals. I recognize especially that in certain circumstances it is the women who are the caregivers of children. I recognize that reality. However, those are now issues that the board takes into account in determining whether or not parole is appropriate. What is a specific woman's relationship with her children, family and community? Those are all very important issues.

This bill does not target anyone. As I have indicated, it allows the parole board to take a substantive look to determine what the benefits are of releasing an individual into society and what the disadvantages would be. I do not understand how you can say we have not taken into account certain factors. Everyone is treated exactly the same. In fact, the particular circumstances are now brought to the attention of the board so that they become relevant.

[Translation]

Senator Hervieux-Payette: I am not the one who said earlier that this bill was perceived as a magic solution by the Bloc Québécois concerning the case of Vincent Lacroix, whereas it will not even apply to him. And by appealing this bill, Mr. Earl Jones will not be targeted by it either.

At the outset, you referred to two people who have committed abominable crimes. I think that if you had set a threshold of $100,000 or more, these people would have been directly targeted. When I refer to crimes involving forged credit cards used to obtain essential goods such as food, I agree that this is still a crime.

However, you have to look at the hidden costs, especially how much it costs to keep these people in prison as compared to what it would cost to give them a chance to get back on their feet and undergo therapy.

How much money are you investing in the rehabilitation of these women, especially aboriginals women? They are facing two problems, poverty and substances abuse. These lead to illness and treatment is required.

You undoubtedly know as well as I do that there are serious social problems with aboriginal communities in Canada. These problems will not be solved by keeping these women in jail, either for the victims or for these offenders in general.

What studies have you conducted that would very simply prove to us that instead of dealing with cases like those of Lacroix and Jones, you are punishing people who have already had very difficult lives? I would like to know whether you could table any studies proving that, by keeping these people in prison, and by following a process that should not apply to this type of crime, you are helping society.

[English]

Mr. Toews: It is not the government and not the Crown attorneys who make the decisions about what a person should serve. That determination is made by the courts. The court makes a determination, in a particular case, that an individual should go to prison or jail for a specified period of time.

The point we are making is that when the court has made the determination, saying a conditional sentence is inappropriate, a conditional discharge is inappropriate, a suspended sentence is inappropriate, because some kind of a prison term is warranted, it is up to the court, then, to determine what the length of that prison term or jail term should be.

As an administrator of that sentence, we must determine at what point that individual becomes safe to release into the community. In this particular case, we are saying that an individual who applies for parole must demonstrate why he or she is eligible.

I do not understand what benefit it is to an individual to presumptively say that at one sixth, you do not even apply for parole; you are out on the street. What kind of message does that send out to the justice system and to those who look at the justice system, to say, "We are sending this person out into the street, even though we know that individual may well commit another offence"? I think that is irresponsible.

I think the point you are making with regard to what we are doing with rehabilitation is a very good point. In my opinion, the best way to break that cycle of incarceration is through education, first, and second, the teaching of hard skills, whether it is in a female context. Certain traditional kinds of training have been given in the past. We are looking at whether it might be better that they have other types of training. Education and training are absolutely essential.

The other aspect, and I think you would agree with me, is the issue of mental health. Over the last 20 or 30 years, we have seen the decisions by provincial governments — and of course I acted as a lawyer for provincial governments during much of that time — that have led to devolution and the closing of mental hospitals and asylums in the belief that these individuals would be better off in the community, with supports there. In fact, it has become clear that the system has broken down.

Vancouver's Downtown Eastside is a prime example of what happened when institutions were closed down and mentally ill people were put out into the streets. Then they have not only a mental health problem but also a drug addiction problem, and they are taken advantage of by the drug dealers. That is terribly worrying.

What is our response as a society? We are developing mental health institutions inside our provincial jails and penitentiaries, when in fact this is not where these individuals should be. I agree with you on that point.

What we need to do is talk to the provinces about whether there are better ways of dealing with the mentally ill and people with those types of problems, rather than simply pouring more money into the federal prison system to address mental health issues.

This is a complex and important issue. I look forward to having those kinds of discussions. However, I do not see anything that detracts from my ultimate goal of making a better place for those, for example, who are facing challenges in the area of mental health. There is nothing inconsistent. In fact, this bill allows the board to look, in a substantive and fulsome way, at how we can help individuals as opposed to just pushing them out the door. Pushing them out the door is doing a disservice not only to society in general but also to the prisoner in particular.

Senator Joyal: Welcome, Mr. Minister. I would like to return to the issue of constitutionality. It seems to me to be a serious issue.

This committee has received a letter from the Canadian Bar Association, which is a body you know well. You are probably a member yourself.

Mr. Toews: Yes.

Senator Joyal: The letter is signed by John Conroy, Q.C., Chair of the Committee on Imprisonment and Release of the National Criminal Justice Section. He is a senior lawyer. We have also received a letter from the Barreau du Québec. It is signed by the bâtonnier du Québec, who is highest representative of the bar, also raising the issue of constitutionality.

We have also received a letter from a group of lawyers. I will mention some of them because they are well-known in the public as a result of their past involvement in the justice system in Canada. Claude-Armand Sheppard is one of the most highly recognized lawyers in Quebec, in many instances. Julius Grey is a well-known lawyer in relation to the Charter. I am sure you have read the decision in which Mr. Grey has been involved. Jean Claude Hébert, from Quebec, is a seasoned criminal lawyer. There is Pierre Poupart; Raphaël Schachter, who has pleaded at the Supreme Court level; Isabel J. Schurman; and so on.

All those lawyers raise a certain point, which is that when a person is brought into the justice system, it is with the understanding of what the penal consequences, the sentence, will be if the person is found guilty, and those elements include access to the parole board.

This bill changes the condition under which access to the parole board would be defined, and it is where they conclude that there is retroactivity that would be contrary to section 11(i) of the Charter. As I mentioned, the letter from the Canadian Bar Association quoted section 11(i) of the Charter and concluded that the court will eventually pronounce on it.

What are the essential arguments? Perhaps we will have the opportunity to hear some of those witnesses later on this afternoon. What is your fundamental legal argument to rebut the conclusion those three groups of legal experts have come to in reading Bill C-59 regarding its retroactivity? What are the essential legal arguments for you that say that changing the penal consequences for an offender who was deciding to plead guilty or to not plead guilty will meet the test of the Supreme Court in relation to section 11(i) of the Charter?

Mr. Toews: With due respect to all of these individuals, I do not think they have ever agreed with anything I have said throughout the course of my career. When I brought in administrative suspensions for drunk drivers in Manitoba, every organization across Canada said it was unconstitutional. They were all wrong; I was right. I have dealt with these organizations many times, and I respect them. However, we have a different philosophy and often a different interpretation of the impact of specific provisions.

For example, according to the Supreme Court of Canada, if you are living at home under a conditional sentence, you are actually in prison. Not to be disrespectful, but that is certainly a legal fiction rather than the reality. If that kind of fiction can be adopted by the court in an appropriate legal way as a valid argument, certainly the administration of a sentence going forward is no less a change in the position of an individual. He is still under the control of the penal system; he is still under a warrant of committal. The administration of the sentence has changed, but the reality of that sentence has not changed.

I have said that there is no retroactive penal consequence attached here. The consequence is the same. That individual is under a warrant of committal for a specific period of time. How the penal service administers that sentence, through the parole board or otherwise, is quite irrelevant to the constitutionality of the argument.

I respect the different opinions and arguments that others may have. If I were a lawyer representing criminals, as most of these individuals are, I would make the same argument, but I am not representing criminals.

Senator Joyal: It is not a question of alleging that those who represent criminals are disrespectful of the law of the land. I disagree with you. You have been involved in the administration of justice. In my opinion, lawyers who represent criminals and lawyers who represent the Crown are equal in terms of their capacity to read and interpret the law.

I want to clearly understand your interpretation of the penal consequences. The fact is that people who have been found guilty or who have pleaded guilty are currently eligible to request parole after serving one sixth of their sentence. It is not automatic, as you said in your response to Senator Baker, but they are eligible. This bill changes the date of eligibility, and some might have considered that when pleading guilty. That is the change in penal consequence in this bill. That is what raises the possibility of a constitutional challenge to the bill. However, that does not change the condition of a person who is granted parole. You and I agree on that.

The essential point is that individuals might have considered that pleading guilty would have allowed them the possibility of requesting parole after serving one sixth of their sentence. As you know, most cases are resolved by guilty pleas.

Mr. Toews: I do not disagree with you. It might have influenced someone one way or another, but let us take that a further step. The administrative penalties imposed in the course of prison sentences are often changed. Let us say we change the penalty for having unauthorized contraband inside a prison cell. If when a person was convicted of the offence the penalty was $25 and we subsequently changed it to $50, would we say that that is unconstitutional? If we changed the circumstances under which we can frisk prisoners, could a prisoner claim that is unconstitutional because when he was sentenced frisking was allowed only with reasonable and probable grounds?

Changes are made in the administration of sentences, and I see this as being no different, whether it is changed legislatively, administratively or through regulatory process.

I am not dismissing the argument that can be made or the force of it. I believe that a very good argument can be made that this does not violate the Charter. These individuals have been right on some occasions, and they have been wrong on others.

Senator Joyal: As you yourself have been wrong on some and right on others.

Mr. Toews: Absolutely. However, I believe this argument can be advanced in good faith. It has strength and does not retroactively impose a penalty on individuals who were not convicted of any offence. I believe that this retrospective application of the law in respect of the administration of the sentence does not violate the Charter.

The Chair: Mr. Minister, can we persuade you to stay a little longer?

Mr. Toews: Yes, you may.

The Chair: That is terrific.

Mr. Toews: This is a very good discussion of the issues. Frankly, it is helpful regarding things I need to think about, which is why I prefer to stay a few more minutes.

Senator Joyal: This discussion will probably continue at other levels eventually.

Did the department put a financial price tag on this bill as it now stands?

Mr. Toews: It has, although I have not yet seen it. I know it has been prepared, and I can provide that to you within the hour. The department was asked to prepare that in order to ensure that senators would know the impact, because the retrospective aspect does have some impact.

Senator Joyal: Definitely.

The Chair: You will provide that for us today?

Mr. Toews: Yes, my staff, through Ms. Campbell, will provide that within the hour.

The Chair: That is terrific. You understand why I say "today."

Mr. Toews: Absolutely. That is why I said "within the hour."

[Translation]

Senator Chaput: My question concerns mainly white-collar criminals. Bill C-59 seems largely based on highly visible cases of white-collar criminals, who have robbed their victims of millions of dollars.

Can you tell us, Mr. Minister, how many offenders who are currently entitled to the accelerated parole review are considered as falling into that category?

[English]

Mr. Toews: Perhaps Ms. Campbell can address this more fully, but I think that the $1 million is a bit of a red herring. I do not believe that is mentioned in the bill. About 1,500 offenders would be affected by this provision coming in retrospectively. Is that correct?

Ms. Campbell: About 1,500 people per year are eligible for APR. That is our best calculation.

[Translation]

Senator Chaput: Does that include all those who are eligible and who apply? Not only white-collar criminals, is that right?

[English]

Ms. Campbell: Anyone in the pool; that is correct.

Mr. Toews: This would apply then to drug dealers and to everyone. Everyone is on the same footing. There is no presumption of that automatic parole at one sixth. Everyone is on the same footing, and the same criteria for eligibility that are applied to violent offenders would now be applied to non-violent offenders.

[Translation]

Senator Chaput: Your bill aims to ensure people's safety. As concerns white-collar criminals, on the one hand, they must be identified and punished. They are identified. They are punished. They go to jail. They are found guilty. So a community feels much safer.

But these white-collar criminals are much more difficult to identify and catch, for many reasons. Since this type of fraud is becoming more and more in fashion and making our communities feel less safe, have you considered, Mr. Minister, a second component concerning prevention, with a view to informing and educating the public about this type of fraud? Have you had the opportunity to discuss this with police forces or the RCMP?

[English]

Mr. Toews: I do not think it is necessary to change legislation to do that. In fact, that has been the focus of police forces over the last number of years. Even when I was a provincial attorney general, in terms of working more closely with law enforcement at a local level, that type of issue was very important in terms of educating. You will see police forces, especially in dealing with seniors, making that an important element of their educational outreach. Again, I think it is very important.

It is not just police educating the public, but seniors' organizations organizing their membership, and that has become an important component of that delivery of these types of services by seniors' organizations.

We need to continue to expand that. Often, of course, those who are victimized are victimized by members of their own family. It is a very sad situation but very true. Again, helping people who may be victimized in that respect is not a question for the legislature or Parliament, but certainly social agencies, police agencies, seniors and senior-serving organizations would be important.

[Translation]

Senator Chaput: Would that be part of your strategy?

[English]

It would be part of the strategy once this bill is passed.

Mr. Toews: I think it is part of an ongoing strategy. That is nothing new. I do not know whether Ms. Campbell can add to that regarding federal programs.

The Chair: Mr. Minister, I know you do have to leave, and we have two senators who have not had a chance yet to put a question to you.

Mr. Toews: I will end it.

The Chair: If Ms. Campbell can stay on, she can add more. I repeat that I am restraining myself here.

Senator L. Smith: I have a couple of simple questions. I met with 29 of the victims of Earl Jones 10 days ago, and they had two questions. You answered the first one partly, which was when will the legislation pass and get Royal Assent. The second question is this: What happens if there is an election?

These people are very interested in this bill, and there is unanimity amongst them as to what they want to have happen to Mr. Jones.

Mr. Toews: As I pointed out, the bill is retrospective, and it comes into force on a date that can be set by Royal Assent. I can never recall the proper words; however, it can be done immediately after this Senate passes the bill. That can be very quickly.

If an election intervenes, the bill dies and we go back to the drawing board, and any individuals who in the interim become eligible to apply for accelerated parole have the right to make that application.

Under this bill, if the bill is passed and in force, all those who subsequently become eligible for parole have to do it according to the new rules, not the old rules.

Senator L. Smith: Could this happen this week?

Mr. Toews: This could happen this week if the Senate is so inclined.

The Chair: Senator Carignan.

[Translation]

Senator Carignan: My question is regarding the report published by the Correctional Services Canada Independent Review Panel in 2007. This was a report released by an independent panel that was struck to advise Stockwell Day, who was Minister of Public Safety at the time.

The recommendation includes the panel's mandate, which was to review the effectiveness of the correctional service, including its impact on aboriginals people and women. It also included recommendation 60 formulated by this independent panel composed of experts. This recommendation called for an amendment to be made to the Correction and Conditional Release Act to replace statutory release and accelerated parole review with earned parole. This report dates back to 2007, long before the Jones and Lacroix cases.

To what extent did this report motivate your decision to table Bill C-59?

[English]

Mr. Toews: If we can take it back a step, it certainly was very important in introducing Bill C-39. That is the broader bill that takes into account more of the recommendations on a general basis.

Bill C-59 was our opportunity to get some of it done because we were able to work together with one of the opposition parties to move this forward.

The strategy and the recommendations outlined in the 2007 report are very important. Senator Boisvenu and I met with Commissioner Head to talk about the implementation of 2007 a few weeks ago about where we are and whether people inside the department are taking this seriously. I was actually encouraged by the comments of the commissioner, and I know that Senator Boisvenu was pleased with the results of that discussion. I understand there is an ongoing commitment by the commissioner to meet with the senator on an informal basis to keep him apprised of how we are proceeding on the implementation.

The Chair: Could you tell me whether a gender-based analysis was done on this bill?

Mr. Toews: Yes. I know that issue was raised in the other place at the committee and in other places. An analysis has been done. Ms. Campbell could advise on that.

The Chair: That would be absolutely terrific. On your earlier discussion with Senator Lang about breaking and entering, as I read the materials we have, APR does apply if it is just breaking and entering, but if it is breaking and entering and committing an indictable offence in the place you broke into and entered, then you do not get accelerated parole review. Is that also your understanding?

Mr. Toews: That is correct, but, in fact, what you will see is many individuals pleading guilty to break and enter with intent and then becoming eligible for the accelerated parole.

Generally speaking, if a person pled guilty to break and enter and committed the indictable offence of theft, and he says, "Look, I am not going to plead guilty to that; I will go to trial on that; but I will plead guilty to break and enter with intent, and for the same penalty," as a Crown attorney I would shrug my shoulders and say, "Why not?" I would read the same circumstances to the record, in any event. The penalty is the same. Why would I subject the taxpayers to a trial on that case?

I am saying that the intention of this bill is good in that it eliminates those artificial distinctions and the gaming of the system.

The Chair: Let us consider this a pure hypothetical for the moment. The last clause of the bill says it comes into force on a date to be determined by the Governor-in-Council, which is to say the cabinet. Suppose, for the sake of my hypothesis, that this bill were to pass the Senate on Thursday of this week. Suppose further that Royal Assent was given that day. Suppose further that the government fell on Friday. Would the cabinet still have the power to proclaim the bill in force?

Mr. Toews: Yes, as long as it has received Royal Assent.

The Chair: I wanted that on the record for clarity.

Minister, thank you very much. We have kept you overtime. We are grateful. I will ask Ms. Campbell if she could stay on for a few minutes. Thank you. There were colleagues who wanted questions on a second round.

Senator Baker: Before I ask my question, and in listening to the previous conversation, the offence in the Criminal Code is breaking and entering with intent to commit an indictable offence. There is no separate provision, to my knowledge, of breaking and entering.

The Chair: You mean my clarity was not clear? Thank you, Senator Baker.

Senator Baker: My question to the officials is this, and it is really a question of information. My immediate reaction, when I listen to the minister, is that there are other ways under the Corrections and Conditional Release Act that you can get parole after serving one sixth of your term that are not covered by this bill.

I just wanted the witnesses to verify that there is such a thing, for example, as unescorted temporary release, which could go on indefinitely, for 60 days, 60 days, 60 days, 60 days, or is it 90 days, 90 days, 90 days? It is irrelevant; I think the provisions are about two clauses beyond the clauses we are dealing with here today. If we are dealing with section 125, then it is perhaps section 127 under the Corrections and Conditional Release Act, to my memory.

That is my first question of information. In other words, the one sixth release of the very people that you are shutting off from APR is still available in a couple of sections after that. Under those provisions, it could be for personality development, or for behavioural matters, or for fitting back into the community — one sixth of the sentence. That is still there.

Under normal conditions, say if you are convicted and you receive three years in jail, it works out perfectly, because you serve one third of your sentence, you become eligible for parole and then six months prior to that you can ask for day parole, so that is one sixth of your sentence. That would not be changed by this bill, to my memory.

Also not being touched are the provincial laws in each province under which you can be released after serving one sixth of your sentence.

Just as a matter of information, am I generally correct, without investigating this matter, that there are these other ways in which a person will receive, or could receive, release after one sixth?

Finally, under the APR, you are in a halfway house. Unescorted temporary release is unescorted, defined under the act in very broad measures.

Could the officials comment on those observations that immediately come to mind?

Ms. Campbell: I would be happy to. There is a mixture of accuracy and inaccuracy. I will try to go through it in order.

The only provision for parole at one sixth is APR. With the abolition of APR, there will be no parole eligibility at one sixth.

Historically, just for the record, day parole, when it was created, was at one sixth. That was from 1970 to 1972. At that time, it moved to six months before full parole.

Senator Baker: That is one third.

Ms. Campbell: Correct.

Senator Baker: If you have three years, that is six months. That is one sixth.

Ms. Campbell: If you have a three-year sentence, you are quite correct. The math is no different.

Senator Baker: It is around three years.

Ms. Campbell: For someone who has three years on the button, there is no difference in eligibility date between APR and the regular parole system, if I could put it that way. The difference lies only in the test to which the minister referred.

Senator Baker: That is not being changed?

Ms. Campbell: That is not being changed. Regular parole, as we call it, continues on as it is now.

For anyone serving more than three years, the mathematics are such that this will make a difference. They will not be eligible at one sixth for day parole. They will simply be eligible like everyone else six months prior to full parole, and obviously the longer the sentence gets, the more the gap grows.

Just to be clear, there is no one-sixth parole if Parliament abolishes APR.

Senator Baker: I said "release into the community." I did not use the word "parole."

Ms. Campbell: I want to turn to the provincial system. APR has never been a feature of the provincial system. If you are serving a six-month sentence in a provincial prison, you are not eligible for APR. It applies only to people who have been sentenced to a penitentiary. That will not change.

You referenced unescorted temporary absences, the eligibility and the nature of these kinds of passes. The acronym we use is UTA, if I slip into that.

Unescorted temporary absences are an earlier stage than parole. The rehabilitation and reintegration process is very much a staged approach, so normally people will start with escorted temporary absences. It is an absence, obviously with an escort, for a few hours. If that is successful, the next step would be an unescorted temporary absence, but those are closely circumscribed by the statute. They are not endless. The only type that can be for an indefinite or unlimited period is a medical one, and that is for obvious reasons. The medical care or treatment may be uncertain, so the UTA continues for as long as it is needed.

The other kinds of unescorted temporary absences have specific purposes, specific criteria and specific time frames around them. For example, for someone in medium security, an unescorted temporary absence for community service or personal development is for a maximum of 15 days and not more than three times a year. They are closely circumscribed.

You are right that someone on an unescorted temporary absence normally is not in a halfway house in the community — they are supervised — but the pass may be, for example, to go home for a funeral or family event. It may be to visit a halfway house, to see whether the house and the person are compatible, if they are looking towards day parole. There are a myriad of purposes for the UTA, and the person could be in a house or might be on his own, but it is certainly not comparable to being out on parole.

I think I have answered your questions.

Senator Baker: You have, but it is a matter of semantics, I suppose. The unescorted temporary absences under section 128, I think it is, can be repeated every 60 days. That is my recollection.

Ms. Campbell: Specific personal developments may be authorized for a maximum of 60 days and may be renewed for periods of up to 60 days each for the purposes of the program; that is the one exception.

Senator Baker: That is what I am talking about, the exception. Sometimes it becomes the rule. That is available after one sixth of the sentence. Is that correct?

Ms. Campbell: Yes.

Senator Baker: Finally, are you saying that in provincial institutions you cannot get out of jail after serving one sixth of your sentence?

Ms. Campbell: No.

Senator Baker: That is not what you meant, was it?

Ms. Campbell: No.

Senator Baker: After one-sixth of your sentence in a provincial institution, you can get out and go home, as the minister said. That application is made to the penitentiary director. Is that correct?

Ms. Campbell: Partly. What I said was that there is no APR program in the provincial system.

Senator Baker: I am not talking about APR. We are doing away with that program. I was talking about serving one sixth of your term and —

Ms. Campbell: In the provincial system, my understanding is that heavy reliance is placed on temporary absences as the releasing mechanism. Parole is available to people serving sentences of up to two years less a day. However, given that the average provincial sentence is very short, you can appreciate that it is really not practical in most cases to seek release through parole. It is more often done through temporary absences, and provinces tend to use — again this is my best information — what are called back-to-back TAs, so the person is out and can be out quite quickly on a temporary absence. That is the provincial system. It is not touched by Bill C-59 in any way, shape or form. Others appearing as witnesses today may be able to tell you a bit more about it.

Senator Baker: Thank you. I just wanted to make sure that under the federal law you could get out after serving one sixth of a sentence.

[Translation]

Senator Hervieux-Payette: I would like to ensure that my figures are accurate. Am I wrong to think that among OECD countries, Canada has the second largest number of prisoners per capita after the United States?

[English]

Ms. Campbell: At one time, Canada had the second-highest incarceration rate among Western countries. That is no longer the case. The United States of course is the world leader for incarceration rates. Of Western countries, Canada is actually somewhat further down the list. For example, last year, Canada had an incarceration rate of 116 per 100,000. Australia was higher at 129; Scotland was higher at 152; New Zealand was higher at 185; England is at 153. Canada is not in that top tier at the present time.

[Translation]

Senator Hervieux-Payette: Given the current situation in prisons, how many new positions in the jails and parole authorities will be created by this measure to oversee the new system?

Ms. Campbell: I am not sure I have understood your question.

Senator Hervieux-Payette: Let us suppose that 2,000 more people are kept in prison, regardless of the length of the sentence. For some people it will be six months longer, for others it will be one or two years longer. You must certainly use ratios; you cannot stack prisoners on top of one another. There are also, sometimes, rehabilitation programs, but not necessarily for the short term.

I would like to know how many new positions will be created for the prisons and parole authorities? I did not notice any job creation in the national plan. Now, parole officers will deal with all files, that is, all those who did not go through the parole process before, because in any case, it was automatically applied after one-sixth of the sentence.

I would also like to clarify one thing. The minister said "pushing out the door or in the street," which presumes that these people are like ordinary citizens. So when these people look for work, will they have to tell their employer that they are on parole and that their sentence has not been served, because they are only at one-sixth of it? And will they be able to travel and leave Canada?

[English]

Ms. Campbell: You have raised many interesting questions in one question, and I hope some of the other witnesses today will speak to some of them.

Two things drive the size of the inmate population: the inflow and how long you keep them in custody. If you turn up either one or both at the same time, the result will be an increased population, and ultimately, one assumes, the incarceration rate would also start to reflect that change.

Most people do not leave penitentiary by way of parole. Most people leave by way of statutory release at the two- thirds point of the sentence.

I return to my earlier point that, given the average penitentiary sentence of around four years, for many people, the abolition of APR does not change the mathematics very much. You are quite correct that it changes the decision- making process. One could, if there were a lot of time, look at why APR was created in the first place. I was one of the people who worked on creating it, and there were some particular reasons behind it. Most of the people going out as a result of APR would be regarded as generally good candidates for parole. You have to factor all of that in when considering the impact of this change.

Senator Hervieux-Payette: How can they introduce themselves to an employer, and will they be able to travel outside of Canada?

Ms. Campbell: That is a big problem, I would say, and a big issue. People looking for work in a tough economy who have to explain where they were for the past five years or why they cannot work the night shift would face problems, absolutely. Everyone in the system recognizes that and tries to ameliorate it as much as possible.

With respect to travel outside of the country, there is a standard parole provision that forbids travel outside the country unless the parole board has authorized it. There is quite a process involved in getting a passport for any trip outside of the country. The short answer is that you cannot automatically travel outside the country.

Senator Hervieux-Payette: It seemed very strong to me, as if the person would have no cloud over his head and were free like everyone else. As far as I am concerned, I do not think you are free after one sixth of your sentence. How would you comment on that?

Ms. Campbell: Again, you will be hearing from witnesses who can talk about the experience of parole. People I know who are on parole would generally not call it freedom. There are conditions; there is supervision; and you are always subject to be returned to custody if there is an assessment that your risk has increased.

Senator Lang: I will probably take only three minutes, but I did not see time allocations earlier. I just want to make a point here.

The Chair: I will explain why I said that after banging the gavel.

Senator Lang: We will discuss it further.

I have a couple of questions. First, someone released into parole has been granted a privilege; it is not a right. Second, there are consequences to a person's life when he or she has violated other people's rights. At the end of the day, there is a cloud, and I would submit there should be a cloud, at least for a period of time.

I would like to go back to the current program, the accelerated parole review program. The word "automatic" has been used. I have been led to believe that a first offender is automatically put forward for this accelerated parole review. Has anyone ever been turned down?

Ms. Campbell: Yes. The automatic nature is that if individuals meet the eligibility criteria, they are referred to the board for what is called a paper review. It is not an in-person hearing. That is the automatic part of it. Their files go forward regardless.

However, the act provides criteria that can be reviewed in making the assessment as to whether there is undue risk that those individuals will commit a violent offence if they are released. At that point, the board will look at their criminal history; for example, if they have done provincial sentences before, any kind of relevant behaviour will be examined. If that examination discloses some concerns about potential for violence, they will then be referred into a regular parole review.

I do not have denial numbers in front of me. Perhaps witnesses from the Parole Board of Canada will have those. I have seen numbers on people eligible for APR who have been denied and referred into the regular review process because something in their background came out.

Senator Lang: You mentioned in your example the provincial record of an individual, yet earlier we were told that at times the provincial record is not necessarily taken into account for the purpose of a federal offence so as to not be seen as a repeat offender. That causes me and I think many Canadians concern.

I will ask you a general question. If this is the case, which I believe it to be, what steps is the federal government taking with respect to provincial authorities to see that we have a system where offenders who have offended at the provincial level and obviously again now at the federal level are seen as repeat offenders and not first-time offenders?

Ms. Campbell: One of the minister's points was that there are varying definitions of recidivism, and it is extremely important to know what definition is being used when statistics are being put forward. I think the Commissioner of the Correctional Service of Canada can explain in more detail how the provincial record is taken into account. It certainly travels with the person and is reflected in the decision making. If the person has a history of violence or domestic abuse or what have you, that will be reflected in decisions made about that person. Similarly, that is the case when the person is before the Parole Board of Canada.

For APR purposes, the definition was used of a first-time penitentiary sentence, but there was no doubt that that category could include people with provincial sentences behind them.

Senator Runciman: However, they would not be considered if they were not first-time offenders, which is only in the federal system. Their previous record is not taken into account in terms of being considered.

The Chair: If they serve time in provincial institutions.

Ms. Campbell: That is correct. It would not affect their eligibility. They would still be eligible.

The Chair: We are grateful to you, Ms. Campbell. Thank you.

We are now pleased to welcome as witnesses a couple of people who have become familiar over the past few months: Mr. Don Head, Commissioner, Correctional Service of Canada; and from the Parole Board of Canada, Ms. Shelley Trevethan, Executive Director General, and Suzanne Brisebois, Director General, Policy, Planning and Operations.

We will begin with Mr. Head. Then we will go straight to you, Ms. Trevethan, followed by questions.

Don Head, Commissioner, Correctional Service Canada: Good afternoon, Madam Chair and honourable committee members. Thank you for the opportunity to appear before you today to discuss accelerated parole review and the effect that Bill C-59 would have on the Correctional Service of Canada's operations. At the outset, I would like to emphasize that CSC is well positioned to meet the challenges of today and tomorrow and build on our effective corrections expertise to provide good public safety results for Canadians.

Every day across the country, over 17,000 CSC employees work around the clock at 57 correctional institutions, 16 community correctional centres and 84 parole offices to help keep our citizens safe. On an average day, CSC is responsible for approximately 13,800 federally incarcerated inmates and 8,700 offenders in the community.

Part of the work we undertake is case review and referral to the Parole Board of Canada in support of accelerated parole review, or APR. I would like to explain the APR process by way of background and, specifically, CSC's role.

Accelerated parole review is a statutory provision of the Corrections and Conditional Release Act, which allows for first-time non-violent offenders to be released on day parole after they have served six months or one sixth of their total sentence, whichever is greater. Only offenders serving non-violent offences who have no involvement in terrorist or organized criminal groups are eligible for APR. Offenders who have been convicted of serious offences such as murder, attempted murder or Schedule I offences are not eligible for APR, nor are those whose day parole has been previously revoked by the parole board.

The role of the Correctional Service of Canada in the APR process is one of review and referral. We are required to review the case of offenders who fall under the APR provisions within one month of their admission to a penitentiary.

If the offender meets the criteria, CSC refers the case to the Parole Board of Canada for review and decision. In referring the case, we also provide information such as the offender's social and criminal background, institutional behaviour and assessment for violent behaviour.

One major difference between APR and non-APR parole submissions is that APR is a legislated provision. This means that the offender's case is automatically submitted to the parole board and does not require the offender to make a formal application and attend a hearing to be granted accelerated day parole or full parole.

Another major difference is the legal criteria for directing accelerated parole versus the criteria for granting non- APR parole. When directing APR, the parole board must be satisfied that there are no reasonable grounds to believe that, if released, the offender is likely to commit a violent offence before the warrant expiry date.

When granting non-APR parole, the board must be of the opinion that the release of the offender is in the best interests of public safety, in that the release would facilitate the offender's reintegration as a law-abiding citizen. Furthermore, the board must be of the opinion that there would not be an undue risk to society should the individual reoffend.

It is important to note that under APR, an offender's eligibility date for full parole is the same as for all other offenders: that is, the lesser of seven years or one third of their sentence. APR only accelerates the offender's eligibility date for day parole. "Day parole" means the offender is released from an institution to a community correctional centre or halfway house and is required to return there every night.

Bill C-59 would impose the same day parole eligibility dates on all offenders, which is either six months of their sentence or a period from admission through to six months prior to their full parole eligibility date, whichever is greater. It would also require all offenders to now proceed with an application and mandatory hearing before the Parole Board of Canada to be considered for day parole.

Regarding the success rates of offenders released on accelerated parole review, I will share some statistics from the Corrections and Conditional Release Statistical Overview Annual Report 2010. For the fiscal year 2009-10, approximately 87 per cent of accelerated day paroles were successfully completed. Of the 13 per cent revoked, none were for a violent offence. The vast majority were for breach of conditions, with only 2.4 per cent of APR day parole releases being revoked for the commission of a non-violent offence.

We see a similar pattern when looking at full parole success rates for APR offenders. In 2009, about three quarters of full paroles were successfully completed. Only two cases, 0.2 per cent, were revoked for violent offences, with a majority of revocations being for breach of conditions.

In terms of numbers of our total offender population, as of October 2010, approximately 8 per cent were identified as eligible for APR, which represents slightly over 1000 inmates.

In closing, Madam Chair, I would like to restate that I am confident CSC is well-equipped to adapt and to continue to provide good public safety results for Canadians. Thank you for the opportunity to discuss Bill C-59 and its implications for the Correctional Service of Canada. I would be happy to entertain any questions.

Shelley Trevethan, Executive Director General, Parole Board of Canada: Good afternoon, Madam Chair and members of the committee. Thank you for the invitation to speak to you about Bill C-59. In my remarks today, I will explain how the bill would affect the Parole Board of Canada's operations.

As you are aware, the criteria for accelerated parole review are focused on an offender's risk for reoffending involving violence rather than the criteria applied to regular parole reviews, which are focused on the general risk of reoffending. The APR provisions within the Corrections and Conditional Release Act set out the criteria the board must follow to direct parole for eligible offenders. This is distinct from the board's role in granting parole to offenders under the regular parole provisions of the law. Under the current legislation, the board must direct an eligible offender's release on accelerated parole if satisfied that there are no reasonable grounds to believe that the offender is likely to commit an offence involving violence prior to his or her warrant expiry date.

In 2009-10, the board made almost 1,500 federal accelerated day parole decisions. Within that group, the board directed almost 950 offenders to day parole; 700 of these offenders were directed at the file review stage, and 250 were directed via a hearing.

Offenders who are not directed for release at the file review stage are automatically scheduled for a hearing. The board did not direct day parole for almost 550 offenders. Offenders who are not directed on accelerated day parole in an in-office review or at a hearing in front of two board members would then be assessed under the regular parole criteria.

In terms of offence types, in about one third of APR cases, offenders have been convicted of possession of a substance for the purpose of trafficking; another 14 per cent were convicted of trafficking drugs; and 7 per cent were convicted of conspiring to commit an indictable offence. Most of those were drug offences, so about 55 per cent were for drug-related offences. Another 7 per cent were convicted of break, enter and commit; 4 per cent were convicted of fraud over $5,000; and 3 per cent were serving time for theft under $5,000.

A more detailed breakdown of offence types is available to the committee, should you wish to obtain that information.

For the benefit of the committee, I thought I would take a few moments to contrast the decision-making processes under regular parole versus APR.

In most cases of regular parole, the board holds a formal hearing within the institution where the offender is held. Two board members will review all relevant and available information about a case and form an opinion about whether the release of the offender would constitute an undue risk to society. They must also determine whether the release will contribute to the protection of society by facilitating his or her reintegration as a law-abiding citizen.

The determination of "undue risk" is based on an assessment of the offender's likelihood of reoffending. Board members weigh all available and relevant information. This information comes to us from the Correctional Service of Canada, from the offender, police, mental health professionals, victims, and through other sources.

Victims have an opportunity to attend hearings in person to share with the board the consequences of the offender's crime.

APR cases are conducted in-office with one board member. A member will review the offender's entire case file. However, the criteria for decision-making are more limited. Under the legislation, unless the board has reasonable grounds to believe that the offender will commit an offence involving violence if released prior to his or her warrant expiry date, the offender must be released at his parole eligibility date.

In cases where a board member decides that the offender is likely to reoffend violently, the case is then referred to a hearing. These hearings are conducted by two board members. They assess the information considered at the in-office review, the reasons for the previous board member not directing the release, any new information that is available, and representations from the offender.

Should Bill C-59 pass, all offenders, no matter their crime, would be assessed using the regular parole criteria, which are concerned with general reoffending, not strictly violent reoffending. Two board members would make decisions generally by way of an in-person hearing, which victims could choose to attend in person and read a statement. This also means that offenders previously eligible for APR would be required to apply to the board to be reviewed for day parole, as is the case with all other offenders. Day parole reviews would not be automatic. In addition, their eligibility dates could change.

In terms of eligibility, the bill would have a greater impact on offenders serving longer sentences. For example, an offender sentenced to nine years who is eligible for APR is considered for day parole after serving a year and a half of the sentence. An offender serving nine years who does not meet the APR criteria would be considered for day parole after serving two and a half years of the sentence.

Should this bill pass, the board would take the steps necessary to implement the new legislation, including modifying our policies and operations to make the transition as seamless as possible.

This concludes my remarks. Thank you for inviting me to appear today before the committee. We are happy to take your questions.

The Chair: Thank you very much. Just before I turn it over to you, Senator Wallace, I should have at the outset drawn the attention of honourable senators to these documents that have been provided to us by the department in answer to the questions we had put to the minister about cost implications of this bill. They are actually quite interesting.

Senator Wallace: Thank you for your presentations. Mr. Head, I direct my first question to you. As we have heard from Minister Toews and others who support Bill C-59, one of the major objectives is to provide a better balance between on the one hand the need for offenders to pay their debt to society, to meet their obligations to society, through earning this right to parole, and on the other hand ensuring that rehabilitative services that meet offenders' needs are provided by Correctional Service of Canada. This is a balance between societal interest and rights, the duty and obligations of the offender, and the obligation of the government through your offices to provide effective rehabilitative services. What comment might you make from your perspective in regard to that balance and how it could be impacted by Bill C-59 if it is enacted?

Mr. Head: I will speak to the latter part of your point. My job is to ensure that my staff meet the intent of the Corrections and Conditional Release Act, which is to do assessments and reviews of offenders, provide them opportunities, and provide supervision while they are in the community.

There is no question that this bill will have an impact for us. It means this group of individuals, those who are eligible for accelerated parole review, will now be staying in our facilities longer. We still consider them to be good candidates for day parole or full parole, whether they are accessing it through an accelerated regime or through the normal regime, but we anticipate that they will be staying there anywhere from another 120 to 180 days longer, which is the difference between the one sixth mark and their release under the normal regime.

That is not a long period of time when you think about it from a programming perspective, but we will have to continue to be smart in how we line up our programming resources to ensure that we are not missing an opportunity with these individuals as they come through the system.

There will be some pressures on us in providing programs and program opportunities. I believe you now have the funding numbers in front of you, honourable senators. Embedded within those costing numbers are costs or funds for us to supplement many things, including rehabilitative services and program services. Program costs are embedded in the numbers you see in front of you.

Senator Wallace: Do you feel confident about the ability of the Correctional Service of Canada to respond to the needs of the offenders should Bill C-59 be enacted?

Mr. Head: Senator, there are challenges on any given day. I feel confident that I have the best staff in the world as it relates to correctional services, the best staff to deliver the best programs in the world. I believe that we are up to the challenge. Will there be pitfalls along the way? There most certainly will be, but I believe we are up to the challenge and with the funding will be able to address the additional needs that will be coming our way.

Senator Wallace: The current accelerated parole review process could reduce the period of day parole eligibility to one sixth of the sentence. Obviously, in terms of months, that can be a very short period of time, given the circumstances of the offender. What is your comment about how that impacts your ability to provide effective rehabilitative services to offenders when they are there for such a brief period of time? Someone with a 48-month sentence could be with you for eight months. Does that impact your ability to deliver effective rehabilitative services?

Mr. Head: It most definitely does. Here are a couple of quick statistics: We looked at the average length of sentence for individuals who are eligible for accelerated parole review right now. Their average sentence length is 3.83 years — 1,397 days, to be exact, rounded off a little bit. It is a relatively short period of time when you look at a regime like this. We have also looked at the number of offenders who were being released on accelerated parole and how many of them had participated in programs in the very short period of time that we were able to do it. Fewer than 20 per cent were involved in programs.

Admittedly, some of these individuals are low-risk, low-need individuals, by our definition, and over-programming them can actually lead to the wrong result. However, others there do have some needs, and for the period of time that we have them incarcerated there is not much opportunity to get them involved in programs.

The onus is then on us to ensure that we have a regime of programs or services in the community to support them while they are out there, the best way that we can. To some extent we have been relatively successful with that, considering, as I mentioned earlier, the revocation rates and the reoffending rates for those who have gone out on day parole or full parole, which are not too dissimilar from the normal day parole and full parole rates.

There are some challenges there. Again, even individuals staying for another 120 to 180 days is not that long from a program-delivery perspective.

Senator Wallace: That figure is startling. However, it is not surprising that 80 per cent of those available for accelerated parole review would not apply or seek rehabilitation when incarcerated. That is a startling figure.

Mr. Head: When we developed our suite of programs over the last decade, we looked at individuals who had, on average, four-year or five-year sentences and who were staying in for lengthy periods of time. Our programs are rather intensive.

One of our biggest challenges over the last few years has been individuals who received short sentences in the two- to three-year range. From the federal perspective, that is very short. We are trying to realign our programming responses and capacity to meet the needs of some of those serving federally shorter sentences.

Senator Runciman: My question is for the parole board. With respect to the current legislation, when you are considering and assessing the likelihood that an offender who is entitled to APR would commit a violent offence, on what kind of information do you base that judgment? Is it provided by CSC for the most part, if not completely?

Ms. Trevethan: We get a lot of our information from the Correctional Service of Canada, and we can get it as well as from other sources, such as police, et cetera.

Our policy manual lays out the types of things we look at when assessing violence, such as the offender's potential for violent behaviour, any previous violent behaviour, the seriousness of previous offences, any information that the offender might have difficulty controlling anger or impulsive behaviour, any threats of violence, any use of weapons during the commission of the offence. A number of areas are laid out in our policies telling our board members the types of things to look for.

Senator Runciman: Would you receive information about an offence that the individual committed while on bail, probation, conditional sentence, provincial or federal conditional release? Would you receive information with regards to preventive recognizance or previous deportation for criminality? Is that kind of information available to you?

Ms. Trevethan: If any of that information is provided to us, our board members would take it into account.

Senator Runciman: To your knowledge, is that kind of information provided? As a routine, is it something you are aware of?

Ms. Trevethan: It would depend. If it is in the court decisions, some of that information would be provided to us.

Senator Runciman: Is it what CSC provides?

Ms. Trevethan: It could be what CSC provides or what is in the court documents.

Senator Runciman: Mr. Head was talking about the success rates. This has been driven by the success of these offenders walking out of prison at an early date and misleading the public. When one receives a 13-year sentence and walks out shortly after incarceration, the families and individuals who have suffered from the crimes are outraged and rightly so. The general public is as well.

Despite these statistics, when someone does breach an APR or parole, are you not required by law to report those breaches to the parole board? Is that a fact? If so, why is that a fact?

Mr. Head: It is our obligation to bring forward any breaches of the conditions. Decisions are made by the parole officers and the parole board when there are breaches of conditions as laid out in release certificates.

Senator Runciman: There was a fellow by the name of Foulston. I am sure you are aware of him. He was convicted of manslaughter for his role in the killing of an Edmonton police officer. The media reports claim that he breached his parole on four instances before the parole board was finally notified. If you look at that individual's history, it is safe to call him a career criminal. He was released nine times on conditional release and committed a new crime each and every time. He was not referred for detention. That is why I am concerned. There is a bit of a cloud over your success rates when you have instances like this. They do stand out, and the public takes notice. Will you comment on that?

Mr. Head: There is absolutely no question that behind the vast majority of success stories, there are cases similar to the one you have pointed out that are not successful and are tragic and horrific. The public does not accept these things, nor does the Correctional Service of Canada, nor does the Parole Board of Canada.

In regards to the reporting of breaches, we have learned lessons from the tragic cases that have materialized over the past decades. We have modified our procedures, policies and reporting approaches with the parole board so that our decision making is truly focused on the most paramount thing, public safety.

Senator Runciman: My question is with respect to broadening the criteria under the legislation so that you can look at any potential offence. In your history of dealing with these, I gather you have not had a lot of reported recidivism. When someone is released, do you have any data about what has occurred with these individuals? They may not necessarily be committing a violent crime. However, if a fraudster has committed fraud, if he is going to commit another crime, he will likely commit a comparable crime. What kind of data do you have on that?

Ms. Trevethan: Our data is similar to Mr. Head's regarding the overall recidivism rates. The recidivism rate for day parole is similar on APR to that of regular parole. However, is it slightly lower for those on full parole APR. About 87 per cent are successful.

Suzanne Brisebois, Director General, Policy, Planning and Operations, Parole Board of Canada: Last year, 87.7 per cent were successful on the day parole APR; 10 per cent were revoked for breach of conditions; the remainder were revoked for non-violent offences.

Senator Runciman: How do those numbers stack up against the people who go through the normal process with the board where the human element is concerned in the consideration for release for full parole?

Ms. Brisebois: Looking at the same year for regular cases reviewed for day parole, it is 87.2 per cent. In terms of successful completion of day parole, regular and accelerated are very close. Revocation for breach of conditions for regular day parole is 10.5 per cent. For the regular day parole for non-violent offences, it was 1.9 per cent.

The variance is a little different for full parole. Last year, the successful completion for accelerated full parole was 74.1 per cent. For our regular full parole cases where the board members use the regular criteria, our success rate was somewhat higher at 81.2 per cent.

Senator Runciman: It is still lower than the APR. Is that what you are saying?

Ms. Brisebois: No, it is higher under the regular for full parole. Under the accelerated, 19.7 per cent were revoked for breach of condition; under the regular criteria, 12.7 per cent were revoked for breach of condition. For those who committed offenses, 6.1 per cent under the APR regime recommitted a non-violent offence and 5.4 per cent under the regular parole regime committed a non-violent offense. That gives you an idea.

Senator Runciman: Thank you.

Senator Baker: The commissioner said that CSC is responsible for approximately 13,800 federally incarcerated inmates and 8,700 offenders in the community. Commissioner, what do you mean by "offenders in the community"?

Mr. Head: Those individuals are under day parole, full parole, statutory release and long-term supervision orders in the community. Those individuals are out in the community under some form of supervision.

Senator Baker: Under some form of supervision, which would not include, then, the extent of their conditions or anything like that unless it is under supervision. Is that correct?

Mr. Head: I am not quite sure I understand your question, but all those individuals would have some set of conditions while they are out there, and our parole officers would be responsible for monitoring those individuals against those conditions.

Senator Baker: They would be responsible for monitoring them. When we come to the actual numbers of persons we are talking about here, if I understand the executive director general correctly, about 1,000 offenders per day would be affected by the provisions in this proposed legislation. Is that correct?

Ms. Trevethan: If we did a one-day snapshot, right now, about 1,000 offenders currently incarcerated would be affected by this proposed legislation.

Senator Baker: There would be 1,000 offenders out on day parole who would now remain in the institution. Is that correct?

Ms. Trevethan: No. There are about 1,000 offenders currently incarcerated who would be eligible for the APR day parole, but who, if this bill is passed, would then not be eligible for the APR provisions. Another 40 who are currently serving day parole in the community would fall under the regular full parole provisions if the APR process were abolished.

Senator Baker: How many persons would remain in the institution after the passage of this proposed legislation but would not be in the institution if this bill were not to pass?

Ms. Trevethan: On this day, it would be about 1,000.

Senator Baker: That was my first assumption, 1,000. It should be fairly simple to work out the additional cost to CSC. How much does it cost the Correctional Service of Canada per day per person for someone on day parole in a halfway house, for example, and what would it cost per person in the institution?

Mr. Head: Our average cost for someone in the combined institutions is about $113,000 a year. To be out in the community under supervision is about $27,000 or $29,000 per year.

Senator Baker: The difference will cost you about $80,000 more per year per person. Is that correct?

Mr. Head: Not quite, although on the surface it would appear to be that.

For this cohort of approximately 1,000 individuals, our estimate of the impact that will accrue out of the additional time that they would stay in a federal penitentiary is between 120 to 180 days. For us, on average, combining the women and men together, that is about 460 incarceration years, or 400 real beds that go along with the abolition of APR. It is not a complete one-year cost that would be accrued; it is the period between the one sixth and when they would be eligible for their normal day parole or full parole, which we are estimating to be between 120 to 180 days.

Senator Baker: Simply put, 1,000 people would remain in the institution who would not be in the institution if the bill did not pass.

Mr. Head: There would be roughly 1,000 people staying for about four to six months longer.

Senator Baker: Do you have room for these people?

Mr. Head: I have double bunks.

Senator Baker: What does that mean?

Mr. Head: That means I put two people to a cell.

Senator Baker: That is two people to a cell, not to a bunk.

Mr. Head: No, that is different terminology.

Senator Baker: I have a point of clarification to ask of the executive director general. As I read your presentation, about 50 per cent of the people affected are those convicted of an offence under the Controlled Drugs and Substances Act. Is that correct?

Ms. Trevethan: Yes, about 55 per cent are incarcerated for substance-related offences.

Senator Baker: You have 47 per cent. You said one third are for possession for the purpose of trafficking, which is section 5(2) of the Controlled Drugs and Substances Act, and you then have 14 per cent for trafficking in a substance. Again, that is section 5 of the act. That is 47 per cent. Where are you getting the remaining up to 55 per cent?

Ms. Trevethan: The other 7 per cent are the conspiracy to commit an indictable offence, and a few little ones relating to that, but most of those deal with substances as well.

Senator Baker: If you are convicted of conspiring to commit an indictable offence, you could be convicted of conspiring to defraud somebody.

Ms. Trevethan: Yes, but almost all of them are related to substance offences.

Senator Baker: Almost all, but is there a percentage that can be added to fraud over $5,000?

Ms. Trevethan: In terms of the fraud-related offences, fraud over $5,000 is about 3.7 per cent. We have fraud under, which is about 0.6 per cent, and a few related ones that are fraud as well.

Senator Baker: You can add those who are there for conspiring to defraud.

Ms. Trevethan: Yes, but there were not many of them.

Senator Baker: Yes, but you can add on to it.

You have 7 per cent for break, enter and commission of an indictable offence. That is what that number includes.

Ms. Trevethan: Yes.

Senator Baker: That all adds up to only 68 per cent. What types of convictions do the other 32 per cent concern?

Ms. Trevethan: I can give you a full breakdown, but I have the broader numbers. About 4 per cent are various weapons-related offences; about 3 per cent are assault; about 2 per cent are various administration of justice types of offences; 1 per cent is drinking and driving; 1 per cent is arson; and 1 per cent ends up being other offences. That adds up to the 100 per cent.

Senator Baker: Thank you.

[Translation]

Senator Chaput: Commissioner, in your statement you say that this bill would require all offenders to proceed with an application and mandatory hearing before the Parole Board of Canada to be considered for day parole. Therefore, following the adoption of Bill C-59, the board will have to hold hearings in all cases, for all offenders who apply.

Some people claim that this could result in a heavier workload and substantially higher costs for the board because you will now have to hold hearings. I was wondering whether you had studied the impact of this in terms of the new workload and the costs for the board. Have you evaluated the impact and how much it would cost?

[English]

Mr. Head: Yes, senator, I think you have in front of you now the costing that was provided that the minister mentioned this morning, which came from Public Safety Canada. In that costing are the costs for both the Correctional Service of Canada and the Parole Board of Canada.

You are right in your assumption that those individuals staying longer for those periods of time will have costs not only for us but also for the parole board, in terms of conducting those hearings. I will let the Parole Board of Canada speak for itself, though.

Senator Chaput: Will you need additional staff? Is that included in this?

Mr. Head: Yes, it is included.

The Chair: I will sneak in here, disguising my question as a supplementary. The cost numbers interested me. Mr. Head, the numbers we have been given show that, for the first five years, this bill would incur $351.6 million in costs for the Correctional Service of Canada.

Mr. Head: That is correct.

The Chair: A couple of pages further on, we get to the Parole Board of Canada. If you add up the first five years, it comes to $61.9 million.

Those are two separate numbers. If we are looking for the total cost to the system, we should add them together, right?

Mr. Head: That is correct. I would like to clarify something while you are looking at the numbers. Included in the $351.6 million cost for the Correctional Service of Canada is $85.6 million for capital over the five-year period. For the Correctional Service of Canada in that five-year period you have identified, $266 million is operating costs and $85.6 million is capital cost.

The Chair: Right. It does show here. Your ongoing cost, which would not include any capital, would be $53.2 million a year, would it not?

Mr. Head: That is correct.

The Chair: The Parole Board does not have capital costs, as such, but you will need a huge increase in staff, will you not?

Ms. Trevethan: Yes. As some of us have already talked about, the Parole Board would need to have hearings as opposed to an in-house review, which would take time. We would need to have two board members instead of one doing the review. Then we would also require the support in order to schedule the hearings and those types of things.

The Chair: I have one last question, if you do not mind, Senator Chaput. Mr. Head, when asked earlier about where you will put all these people, you said you have double-bunking. Will they all need to be double-bunked?

Mr. Head: In the short term, the answer will probably be yes. I am reaching my maximum capacity in penitentiaries now as a result of some other bills. In terms of the staging of the capital money there, it would be about three years out before I would get additional capacity relief. Therefore, during that period of time and for the additional stay for people there, I will be incurring double-bunking over the next three years.

The Chair: What proportion of your inmates are double-bunked now, and at the end of the five years, what proportion do you expect will be double-bunked?

Mr. Head: Currently, about 13 per cent of my population are double-bunked. Over the next three years, I anticipate my double-bunking will probably reach levels of about 30 per cent or so. However, we are monitoring those figures almost daily. Some of our projections have not necessarily been realized as quickly in the first year since some of the projections were made, so we are watching that closely.

If this bill is passed, we are hoping to have on board not only the units that would be associated with accommodating Bill C-59 but also those that would address the needs that are coming through from other bills that were passed, Bill C-2 and Bill C-25.

[Translation]

Senator Chaput: When you refer to double-bunking in the cells, that means there are more people who are being incarcerated. How will this impact hygiene services, as well as kitchen and dining services, if you double the number of people inside? How will you deal with these different services?

[English]

Mr. Head: Those are very good questions and are things we are paying very close attention to. We know serious problems have occurred in cases where jurisdictions have double-bunked individuals and not paid attention to some of those issues you have talked about. We are very cognizant of everything from safety and security to health care issues and sanitation to the timely provision of food. Those things are at the forefront of our discussions and planning right now.

Senator Lang: I want to make an observation about the double-bunking. I appreciate the fact that the commissioner has pointed out that safety, security and health must be of paramount concern in those situations. However, I would also like to point out that I never viewed double-bunking as unusual and unjust punishment. Many of us have gone to post-secondary institutions and have been double-bunked. I think NHL hockey players must go two to a room. To put it into perspective, let us not get too carried away about how difficult this is. Even CFL players have to double up, according to my reliable source here.

I would like to put a question to the Parole Board of Canada. This question hearkens back to the minister's presentation earlier today and also to a response to a question from Senator Runciman with respect to the information provided to those who are reviewing an application for parole. You specifically said "if" information is provided from other sources, such as provincial jurisdictions and others. That causes me a concern.

As I understand it, what is not being said here is that we do not have a system that identifies a situation where we have an offender, who perhaps has made an offence in Yukon, where I come from, at the territorial level. He has now moved to Ontario and committed an offence in a different category, from theft to drugs, let us say. Subsequently, the information regarding the offence made in Yukon is not necessarily made available to the Parole Board. Is that correct?

Ms. Trevethan: In general, information from provincial institutions, et cetera, would make its way into the Correctional Service of Canada system. Maybe I will let the commissioner speak to that. I believe most of that information would make its way to the board.

Mr. Head: Actually, that is a very good example. Having worked in Yukon Territory and having run the territorial jail system for a period of time, we were concerned about individuals being sentenced in the territory and heading down south to serve a federal sentence, whether they were going to British Columbia or anywhere else. One thing put in place as a result of changes to the Criminal Code many years ago was to ensure that any information we had regarding those offenders was made available to federal corrections. Therefore, it is taken into account.

We do have some challenges in some jurisdictions in getting information in a timely way for some of the initial assessments. However, we have protocols with all the provinces and territories for receiving, minimally, the information received into court that the judge takes into account at the time of sentencing. We also look to receive any other information that provincial or territorial corrections systems may have with those individuals.

Sometimes that is challenging because some of their systems are manual, paper-based systems. With others that have electronic systems, we are able to get some of that information, which then helps us in formulating the correctional plans for managing the offender's sentence.

Senator Lang: I want to be more specific here. I have heard used the words "most" and "some" of the information. I am concerned about "all" of the information.

Perhaps I am misunderstanding this. When someone becomes involved with the court system and is convicted, why is there not a system across Canada that automatically follows that individual wherever he or she goes with there being no question about information being provided for the purposes of those hearings?

Mr. Head: For information that is introduced into court, there is a very specific provision in the Criminal Code about providing that specifically to the Correctional Service of Canada. We have agreements in place with the provinces and territories. However, I think Senator Runciman can speak to some of the challenges that occur in some jurisdictions when there are backlogs at the court level and other levels within the provinces and territories. It is not that the information is not coming to us; sometimes it does not come as quickly as we need it.

This is an ongoing challenge. I had a meeting with Justice Arthur Gans recently about this issue. He is doing a special report for the judges on some of the challenges we face in receiving information from the courts and the judges themselves, information they feel is relevant that we take into account. We continue to work on this.

Every piece of information we get from the courts is provided to the parole board for its decision making.

Senator L. Smith: Mr. Head, earlier you made the point that about 80 per cent of offenders do not apply for rehabilitation, and you said that 55 per cent of people in jail are there for drug offences. Does that send up a red flag? Are these offenders thinking that they will get in and out because of APR and do not need rehabilitation? Is there a sense that maybe there should be mandatory rehab especially for people under drug-related offences? It seems odd. I am not suggesting that you will clean up the problem, but would you not study the cases and say that if 55 per cent are drug offenders, rehab should be automatic, because they will go out and take drugs again? That is the simple thought.

Of the 80 per cent, what is the demographic split between men and women?

Mr. Head: I will try to answer both of those points. Regarding there being a red flag, absolutely. From a correctional services practitioner perspective, individuals who come into the system who have specific needs that can be addressed through an appropriate program are of concern to us if they do not have access to that program. We try to address that through programs in the institutions for the period of time they may be there. In cases of APR, we will try to set up those services and programs in the community. Either through our own staff, service providers that run halfway houses, or other agencies that exist in the community, we will try to find ways of accessing those programs or services to give the offender the best chance for success and the opportunity to avoid conflict with the law again.

Regarding the breakdown of women and men accessing programs, the split is about the same. The issue is, again, the length of time that they are with us, in that there is just not enough time for them to be involved in a program in the institution. That does not mean that they do not get access to the program once they are out in the community under supervision, but for the time they are in the institution, they may not participate in programs.

Senator L. Smith: Would they have a condition once released to attend something outside?

Mr. Head: We will see that at times.

Senator L. Smith: If so, do they do it? Is it a 100 per cent attendance requirement, and do they follow through?

Mr. Head: Yes, no and maybe in terms of your questions. Yes, there are conditions when the board feels they are appropriate for the individual being released. No, not everybody participates at the fullest level, and we are concerned about that. Some of those people will potentially face suspension revocation because they have not abided by the program participation condition in their release.

Senator L. Smith: Is it safe to say your biggest success ratio is working inside as opposed to outside with rehab programs?

Mr. Head: It depends on the individuals. We have as much success offering programs and services out in the community to certain types of individuals and categories of individuals as we would in the institution.

It is incumbent upon us to get those who have longer sentences motivated and participating early so they can build on their successes. Once an individual is released out into the community, you can imagine that a couple of things will come to mind. They want to get on with their life. They want to re-establish ties with their family. They want to find a job. Participating in programs does not necessarily rank up there in the top three or four items. We want to get those with longer sentences engaged in programs and services early on so that once they are in the community they are in a maintenance program as opposed to starting a full-blown program.

[Translation]

Senator Carignan: My question is for Ms. Trevethan. Two individuals sentenced to 10 years in prison can both be eligible for parole. If individuals committed a white-collar crime then they are eligible after serving one-sixth of their sentence. If the other crime involved violence, then the time served is different. Different criteria apply to their release as well.

The law is supposed to be fair and that is why I have questions regarding the fairness of this bill. Two individuals are sentenced to 10 years in identical situations but they are treated differently by the law.

Have inmates ever challenged the system or demanded that it be changed in order that they be eligible after serving one-sixth of their sentence? I am referring here to the individual convicted for a violent crime and asking to be eligible after serving one-sixth of his sentence, or to be subject to the same parole criteria as the white-collar criminal. The law appears to me to be unfair.

[English]

Ms. Trevethan: The main difference between the APR process and the regular parole process applies to the types of offenders. You just mentioned the non-violent first-time offender and the eligibility time frames. Someone who received a 10-year sentence under the current APR would have to serve only about 20 months before being eligible for day parole, whereas someone who was not eligible for APR would have to serve 34 months. Thus the time frame is definitely different.

For us operationally, it means that they are automatically referred, and so the board would consider each of these cases. There would be one person, and it would be done through an in-house assessment rather than a panel. Again, we look at the violent versus the general reoffending. That is the difference in the process.

I am not aware of whether there have been any other calls to broaden the APR or whether there has been discussion about legislation.

The Chair: Mr. Head, is it correct that it costs $158,133 a year to maintain someone in a maximum security prison, per inmate?

Mr. Head: Yes. Just to clarify, very quickly, in terms of our estimates around impacts on APR, we are not anticipating —

The Chair: Maximum security people would not be applying anyway. I wanted to know about those numbers.

Senator Wallace: Ms. Trevethan, my comment is in somewhat the same vein as Senator Carignan's comment about equality before the law and the need to have offenders considered in the same sense as much as possible. It would seem to me that Bill C-59 would create a better sense of equality and have the same principles applied to the granting of parole, which does not exist today because of the accelerated parole review provisions. As we have heard many times around this committee table on other matters, this whole issue of discretion is something that is jealously guarded and protected, that there be discretion and not the view that one size fits all. It would seem to me that the consequence of Bill C-59 is that the discretion to consider and apply the factors evenly in granting parole would reside with the parole board. It would be the parole board that would hear each and every case, and, I suppose, there would be opportunity for victims as well to have their input.

Does it not seem that equality in the justice system will be far better served as a result of Bill C-59 and the preservation of this sacred principle of discretion continuing within the system?

Ms. Trevethan: The focus of the board is on quality decision making, and we will take into account any legislative changes. From the board's perspective operationally, it would mean that all the offenders would be treated in the same way, whether for the day parole or full parole. For us, it would mean having to do the in-person hearings versus the paper hearings. You are right that it would be a hearing, so victims could attend.

We do take into account victims' perspectives, whether it is in-house or a panel hearing. That information is brought forward and always included. In this case it would require two board members to hear the offender, to take into account what he or she has to say, as well as any statements by victims if so provided.

Senator Lang: I want to go back to the commissioner regarding the question I had about the information that was provided by the provincial and territorial jurisdictions in concert with the federal jurisdiction. You mentioned there was a study under way. Are you expecting a report that has looked at more streamlining and more computer-type information being made available so that all the information is available to such bodies as the parole board when they need that information? Perhaps you could expand on that.

Mr. Head: I anticipate that will be some of the discussion that will come out of that study. I anticipate that Justice Gans' report will reinforce to the judiciary the importance of making all the information available to the Correctional Service of Canada and ultimately to the Parole Board of Canada for their decision making. That will probably go through the federal-provincial-territorial heads of corrections committee that I co-chair to look at ways of giving that more life, at whether there are automated options or other approaches that will make that information more readily available in a timely way.

Senator Runciman: As I understand it, Mr. Head, there is no legal requirement that breaches have to be reported to the parole board. That is left to your discretion or to the agency running a halfway house. Is that correct?

Mr. Head: That is right. However, we are, through policy, making it more mandatory to report those breaches.

It is so important in terms of managing cases. We have seen, through some very horrific cases in the past, that what was seen at the front line by a staff member as minor was either the beginning or part of a pattern that led to a very tragic incident.

Senator Runciman: Would you support a legal obligation?

Mr. Head: In terms of reporting breaches?

Senator Runciman: Yes.

Mr. Head: It would be consistent with the policy approach we are taking.

Senator Runciman: I have a quick question on double-bunking. I am sure you are looking at alternatives. I think you mentioned new facilities in five years. Some people would see double-bunking perhaps as a form of rehabilitation, or at least an incentive not to reoffend.

I have a special interest in the mental health issue in the federal system. In terms of a ballpark figure on individual inmates suffering moderate to severe mental illness, what kind of numbers are we looking at in your system?

Mr. Head: About 13 per cent of the offender population have some kind of mental health problem, and it is almost double that for women. Those are the figures that have been driving our planning over the last while. As for those at the more severe end, we have regional treatment centres, but we are finding that we need to look beyond just our own facilities for options to provide more specialized care to individuals. Places like Brockville have been able to provide us relief in specialized cases.

Senator Runciman: A more proactive approach — I am not suggesting you are not being proactive — could lessen the pressure in terms of beds in institutions as well.

The Chair: Thank you, witnesses. We are grateful to you.

[Translation]

The Chair: We will now continue our consideration of Bill C-59, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other acts. We now welcome from the Office of the Correctional Investigator, Mr. Howard Sapers, Correctional Investigator of Canada, and Mr. Ivan Zinger, Executive Director and General Counsel.

[English]

Mr. Sapers, you have some opening remarks.

Howard Sapers, Correctional Investigator of Canada, Office of the Correctional Investigator: I appreciate once again being able to appear before your committee to share some of our views on Bill C-59 and the impact it may have on federally sentenced offenders and the work of the Office of the Correctional Investigator.

I would like to begin my opening comments by noting a rather historic moment. It is 37 years, almost to the day, March 20, 1974, that in the Second Session of the Twenty-ninth Parliament, the Standing Senate Committee on Legal and Constitutional Affairs, which had been authorized to report on all aspects of the parole system in Canada, filed its report on that study. This committee has a long tradition of reflecting on this subject. That report was compiled based on 26 public hearings, 75 witnesses, 116 briefs and three years of study.

You have taken on a huge task to accomplish what you want in today's set of hearings.

I had the opportunity to sit in on some of the earlier testimony. I will do my best not to repeat what you have already heard. I would like to highlight a couple of things, though, and then move as quickly as I can to your questions.

Some annual data was presented to the committee on the numbers of offenders who go through accelerated parole review, APR. I would like to give the committee some sense of a trend line or history. Based on statistics that my office obtained for 2009-10, over the past five years, 7,272 offenders were entitled to be considered for APR. Of those, 4,878 were directed to day parole. The grant rate, therefore, was 67 per cent. In the past five years, of those directed, almost 84 per cent successfully completed their period of day parole. About 0.3 per cent of offenders over that five-year period had their releases revoked because of a violent offence. The vast majority over the five-year period were revoked for administrative reasons.

In the past five years, 5,255 offenders were entitled to be considered for full parole at one third of their sentence. Of those, 5,227 were directed to full parole. The grant rate was 99.5 per cent, and the successful completion rate over that five-year period was about 70 per cent. Interestingly, only 0.4 per cent — this is the full-parole directed releases — resulted in a revocation for a violent offence.

My conclusion is that the process of APR was successful at least insofar as it concerns the target population of offenders and the determination of risk. Remember that APR was brought in to be an administrative solution to what was seen as the problem of timely consideration of parole release.

Even given all of those grant rates and completion rates, I should note that the vast majority of offenders are still being released into the community at their statutory release date not conditionally on APR or any other form of parole.

It is my opinion that Bill C-59 needs to be carefully considered and evaluated in conjunction with all of the legislative proposals that are currently before Parliament. The sum total of all the legislative proposals will have significant effects on the rate, cost and distribution of incarceration in this country.

We already know that the vast majority of offenders do not appear before the parole board at the earliest eligibility date. We know that waivers and postponements of parole hearings are related to the capacity of the Correctional Service to ensure that offenders have completed their core correctional programs in a timely fashion. The abolition of APR will have a system-wide effect on the ability of both the Correctional Service and the parole board to process cases in a timely manner. It will add about a thousand cases a year, give or take.

The Commissioner of the Correctional Service of Canada said that this will add to crowding in institutions. It will also add to the challenges that the Correctional Service of Canada has in dealing with some particular populations of federally incarcerated offenders, particularly women, Aboriginal offenders and those offenders dealing with mental illness. These populations already spend a great deal of time at higher security levels and in segregation. They do not have great completion rates with their programs and do not have the same degree of access to programs because of their security classification or the location of their accommodation. Therefore, we know there will be a differential effect.

Crowding inside a federal penitentiary also leads to other circumstances that are contrary to good correctional practice. Crowding historically has led to increases in uses of force and institutional violence. Crowded institutions are not safe institutions. One of the measures used internationally for the rate of violence is inmate assault and inmate complaints. This does not refer to simple bullying but rape and murder inside institutions.

Internationally, the standard is single-cell accommodation. This is not just a policy of the Correctional Service of Canada. This is an international standard in European rules when it comes to imprisonment, international Red Cross standards. It is also the United Nations' minimum standard for the treatment of people in detention. The value of single-cell accommodation is not just to add to the comfort of an inmate but is in fact considered to be safe correctional practice. With the increase of double-bunking in Canadian penitentiaries, already we are seeing an increase in certain kinds of violent behaviour. The population management issues that Correctional Service of Canada must deal with are not necessarily made any easier by forcing more people into a single cell, more people than it was designed for. There are all kinds of issues dealing with incompatibilities.

In the short term, we expect that the abolition of APR will have a negative effect on correctional practice. The Correctional Service of Canada has requested additional funding to deal with both the physical capacity issue and program capacity issue. I remind the committee that, currently, the Correctional Service of Canada is significantly challenged in timely case preparation, provision of programs and meeting that part of its mandate to move offenders into safe and timely release into the community.

Senator Wallace: Thank you, Mr. Sapers. It is good to have you back with us again.

I believe I saw you sitting directly behind Mr. Head, the Commissioner of the Correctional Service of Canada, when he was giving his presentation a few moments ago. He provided us with a startling statistic: Eighty per cent of offenders who would be eligible for accelerated parole review do not apply for rehabilitation within the correctional facility. This suggests that the current system of APR negates the encouragement for offenders to take rehabilitative services.

What is your reaction to that? Bill C-59 would have a positive influence to that extent because it would allow for a greater period of time for offenders to receive rehabilitative services within the institution. From your experience, how would you respond to that?

Mr. Sapers: I have not seen the figure of 80 per cent of offenders who do not apply. From my current vantage point and my experience when I was a member of the parole board, there is a delay in access to correctional programs. Many offenders doing relatively short sentences are advised by their parole officers that the chances of getting into a program are relatively low. They are told not to bother.

Until very recently, the Correctional Service of Canada time framed their programs. Therefore, those offenders closer to being considered for conditional release tend to get into those scant program slots. Those offenders who do not need to take up that program capacity are not put into those slots. Offenders who are eligible for APR under the current regime do not need to go into those programs. This result is not so much from the lack of will to participate in programming but from a lack of capacity to deliver programming. It is not that they do not apply because they are not interested; they do not apply because there is no particular reason for them to do so. They will not get into the programming anyway. The programs that are available are meant to meet higher intensity needs. If they are serving a relatively short sentence, particularly for a non-violent offence, then there is a mismatch between what is available and the sentences that these offenders are serving.

If that figure of 80 per cent is accurate, I would not draw the conclusion that it is because these offenders choose not to apply because they are not interested.

Senator Wallace: I would not say that it is because they were not interested. However, the time that would be available to them to receive the rehabilitative service could be quite short. Someone sentenced to a 48-month sentence for drug trafficking, drug production or sophisticated commercial fraud — all serious offences — could be out in 8 months. It may well be that the feeling is that they will serve their time and be out.

The existing system cuts against the whole principle of our justice system to seek to protect the public by rehabilitating offenders so that they will not reoffend. That is the engrained principle. My colleagues continue to remind us of that, although none of us forget it. Therefore, it is not that they are not interested but rather that the system has a built-in bias against rehabilitation for what are still very serious crimes not involving violence such as drug production, drug trafficking and sophisticated commercial fraud.

Mr. Sapers: We do not disagree on the value of correctional programming and the timely access to such programming. It is a theme that I have reflected in many of my annual reports. The Correctional Service of Canada has made promising changes to their integrated correctional program delivery model and getting programs started even during the assessment phase. We are seeing promising results for offenders to be able to access programs in a timely way. However, the bottom line is that a real capacity problem still exists. There are still vacancies for delivery officers, psychologists and physicians to do assessments to get offenders into those programs. Capacity is a function of numbers; the more you put in, the more demand there will be. One has to ramp up that capacity. Even with these promising changes, we are still not seeing the level of program intake that we would like to see. Today, less than a quarter of eligible offenders are engaged in a core correctional program on any given day. That means that 75 per cent of offenders who are eligible are not in a program. That is a real challenge for the Correctional Service of Canada to overcome.

[Translation]

Senator Carignan: My question is about double criteria, about the fact that there is one criterion for those who are eligible for the accelerated parole review; there are individuals likely to commit a violent crime before their end date and there are other types of offenders. It is felt that releasing offenders will serve the interests of public safety by fostering their rehabilitation as law-abiding citizens.

You stated that under the accelerated parole review, the grant rate for parole was 67 per cent. In other words, 67 per cent of those individuals were granted parole based on how likely they were to reoffend. Did you study these cases in any more depth to find out whether or not those 4,878 individuals met the second test, that is serving those interests through rehabilitation? What would the grant rate be? Have any sample analyses been undertaken to determine whether or not the grant rate would be any different?

Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: You are absolutely correct. The criteria used for accelerated parole review and regular parole review, at one-third or two-thirds of their sentence, thus, automatic parole, are completely different. The standard, if you will, is much higher in accelerated parole review. The criteria which states that an offender "may commit a violent act" is much stricter than the criteria which states they "may reoffend," which generally includes elements other than violence.

At the time, the intent of the lawmakers was to ensure that the focus would be on those offenders deemed to be more dangerous. Lower-risk offenders can be managed more appropriately in terms of the protection of society, and community.

Senator Carignan: You have not undertaken any analyses to determine how many out of the 4,878 would have met the other test?

[English]

Mr. Sapers: We will try to get the numbers that are available. Your question is about the nature of their offences and whether or not they had the benefit of some other form of conditional release. Do I understand your question correctly?

[Translation]

Senator Carignan: I am referring to the 4,878 offenders who were granted day parole based on their likelihood of committing a violent offence. Have you considered what percentage of those individuals would have been granted parole based on the other criteria?

M. Zinger: The answer is no. However, one could predict that using a different test, based on reoffending en general — any other offence, including violent offences — would lead to fewer individuals being granted parole.

Senator Carignan: That is what I also think. That brings me to my second question. Is it normal that in the case of an individual who committed a violent offence the pre-parole criteria is the likelihood of committing another crime? And that in the case of an individual who committed another crime, the parole criteria is the likelihood of committing a violent offence?

M. Zinger: Once again, the intent of lawmakers at the time was to ensure that those most likely to commit a violent offence would not be released, and that those who pose a lower risk of physical violence to society could be safely managed within the community. The numbers seem to indicate that accelerated review, from the public safety perspective, is working well.

Senator Carignan: From what I also understand, the opinion within your organization is that in an ideal world individuals who are released should be rehabilitated within the community while abiding by the law. Is that your organization's objective?

[English]

Mr. Sapers: That is the objective of the criminal justice system in Canada. From the Office of the Correctional Investigator, we want to help the Correctional Service of Canada discharge its mandate in a way that is respectful of the law and human rights. Their mandate is twofold: safe and secure custody and timely and safe release. The impact of this legislation is to achieve that mandate as part of the criminal justice system, which we hope will result in safer communities.

[Translation]

Senator Hervieux-Payette: I am going to continue with my line of questioning from this morning because I am extremely concerned about the female prison population. I think it is my duty to focus on this.

One thing strikes me as bizarre. Your predecessors talked to us about the relative incarceration costs of men versus women. I have come up with astronomical differences that do not reflect what we know about rehabilitation.

We were told that the prison cost for a woman is $221,000 — these are official numbers from the government. The cost for men, depending on where they are incarcerated, whether the prison is a maximum or minimum security prison, is $88,000 or $99,000. Do women receive so many services that it costs $221,000? My understanding of the system was that they received fewer services.

I am looking at the statistics you just provided: for the general female prison population, 63.5 per cent of women are easily granted parole after serving one-sixth of their sentence, whereas the percentage is 39.3 for aboriginals. Do you think that by keeping them there longer, by spending that much, they will be given the necessary tools? Do you think that we are going to at least start talking about reintegrating this female population, whom I call poor women, who do not have the means to earn a living and who have dependency problems? Punishment is the most conservative approach. My philosophy leans more towards the rehabilitation approach. I would tend to agree with the Canadian Conference of Bishops, but that is my personal philosophy.

My question to you is this: are adequate services being provided while they are in prison? Can we hope that this decision, which will affect an enormous number of women, and has affected more women, even under the current system, will lead to better rehabilitation? Do you have statistics on recidivism?

[English]

Mr. Sapers: For the last 20 years, the Correctional Service of Canada has been accommodating the needs of female offenders according to a correctional plan entitled Creating Choices: The Report of the Task Force on Federally Sentenced Women. A particular stream was created for women's corrections. That included the development and building of five stand-alone women's correctional centres across Canada, one in each region, as well as a minimum- security healing lodge for women and specialized treatment beds in one of the regional psychiatric centres for women. The needs of female offenders are seen as different, and some specialized programs have been developed. That is the good news.

When it comes to the cost, the scale of women's corrections in Canada federally is much smaller than men's corrections. Today's count is about 13,566 men inside federal penitentiaries and 543 women, so just the scale of providing 24-hour-a-day, 7-day-a-week, 365-day-a-year operations is very different. It drives up the cost.

Another issue that drives up the cost is that the five women's institutions to which I referred are multi-security level. They operate as minimum-, medium- and maximum-security institutions. You have a blended cost. Not every woman costs in excess of $220,000 a year to incarcerate. Some of them are being held at minimum security, and the costs associated with providing safety, support and security to a minimum-security offender are less. That is a blended average cost.

Unfortunately, we are also seeing a huge growth in the number of women incarcerated. In fact, it has gone up about 35 per cent in the last 10 years. Along with that growth, we are seeing crowding at women's institutions, which has led to compromises in the delivery of the Creating Choices plan. We are seeing increased use of segregation for women, which is very expensive, and increased placement in secure or maximum-security environments within women's centres that originally were not even built with such environments. That has also added to the cost.

Senator Hervieux-Payette: Would you say that the treatment of men and women is the same once they are in a halfway house?

Mr. Sapers: No, there are some significant challenges for women upon release, particularly women who are single- parent caregivers trying to get their families back together. There are considerable barriers to employment and to maintaining accessibility to health care, particularly continuity of care when it comes to dealing with mental health issues. It is not that these are not issues for men, but they often become more acute for women. There are fewer resources in the community and often more competition for those resources.

[Translation]

Mr. Zinger: I would like to add to Mr. Sapers' response. Regarding higher costs, one must not forget that women's needs, with respect to mental health services, are much greater than men's. Approximately 50 per cent of incarcerated women require psychological or psychiatric services. We know that 90 per cent of these women have been victims in the past, victims of psychological abuse, physical or even sexual abuse. The rate is also much higher for self-mutilation, suicide attempts and AIDS. Because those needs are much greater than men's, the costs are also higher.

[English]

Senator Runciman: Earlier, in response to Senator Carignan, you talked about your mandate, and you mentioned that one of the objectives of the criminal justice system is to hopefully result in safer communities. You would agree that the principle of the justice system is that a custodial sentence is supposed to denounce certain conduct and deter others from such conduct. When we see parole eligibility set as early as one sixth of a sentence, I would suggest that has the potential to undermine the principles of denunciation and deterrence.

I will use the situation of Earl Jones as an example. This individual was convicted of stealing $60 million from many vulnerable people who lost their life savings. He was sentenced, I believe, to 13 years in prison. However, under the current legislation, he can walk in 22 months. What message do you think that sends out with respect to denunciation or deterrence?

Mr. Sapers: Denunciation and deterrence are principles of sentencing. Sentencing is also supposed to be responsive and individualized. The Criminal Code would tell us that incarceration is supposed to be used as the last resort. In fact, one of the guiding principles in the Criminal Code and the Corrections and Conditional Release Act is to use the least restrictive measure necessary to achieve the purpose.

The idea is that your overall response is supposed to both serve those principles and support shared values of justice. That is why supervised release in the community for a portion of the sentence is both conditional and discretionary. It is not my role to second-guess Parliament or the government on proposing this particular policy. Accelerated parole review is currently the law. Bill C-59 would change that law. I am hoping to share with you and your colleagues on the committee what I believe the impact of that change would be.

Senator Runciman: We talked about your mandate earlier. Your mandate is probably broader than this, but it includes investigating the problems of offenders. Does that encapsulate it?

Mr. Sapers: Also hopefully to bring some resolution to them, yes.

Senator Runciman: Yes, but that is your primary role.

Mr. Sapers: Yes.

Senator Runciman: I am not trying to diminish your concern about these other elements at all. I just wanted to make that clear.

I am curious whether you have a position on this, and you probably do not. Should there be an equivalent statutory body to investigate the problems of victims with respect to Correctional Service of Canada, CSC, in their actions or inactions? I could cite a number of examples, but I will use one in British Columbia where a family was told by CSC officials that they had better develop a safety plan because their daughter's killer was being moved to a minimum- security facility in their area. I was wondering if you have any response to perhaps the need or the desirability of having that kind of comparable body. You are looking at the problems of inmates. Why is someone not out there looking at the problems of the victims with CSC?

Mr. Sapers: I am not shy about answering that question at all. There is a Federal Ombudsman for Victims of Crime. My office and I were consulted personally in the creation of that office.

Senator Runciman: I am talking specifically about CSC.

Mr. Sapers: The role is under federal jurisdiction, and that is somewhat limited, but certainly that would apply to CSC. We often refer families. We have 30,000 contacts a year, often from people who do not necessarily understand our mandate. We make many referrals for families, victims and others who are concerned with the administration of a sentence. I do not have any problem with seeing that kind of support being provided.

Senator L. Smith: I have just a few points on Senator Wallaces' questions. He mentioned that 80 per cent of offenders do not apply for rehabilitation to which you answered that program delivery is slow, or some bureaucratic delay process impedes people's chances of access.

Some of the other points we heard today are that 13 per cent of offenders have mental problems of which double the amount, 26 per cent to 30 per cent, are women; and 55 per cent of offenders are in for drug offences. In the last paragraph, you encourage the committee "to carefully review the evidence on Accelerated Parole Review, the context in which the legislation has been proposed and the ability of the system to accommodate more inmates serving more time prior to parole release."

I understand what you are saying, but knowing what you know, is it not a responsibility or obligation to point out that maybe we need to have mental illness treated outside the penitentiary system? Is it not important, given that 55 per cent of offenders are in for drug offences, to suggest mandatory rehabilitation and that the people inside had better develop their management process or practices to be able to serve and get things done? Maybe what you are saying tactfully is that a huge bureaucratic blockage does not allow things to work as well as they should. I know there is no Mecca or panacea, but until people inside voice what is happening and what could be better, how do we make it better?

I am asking a macro type of question. I am sitting and listening to the stats and listening to people talk; I am becoming frustrated, and Senator Hervieux-Payette says that Aboriginal women are suffering and will suffer.

I am not trying to be offensive.

Mr. Sapers: I do not take it that way. In fact, many of the problems we are talking about are problems that will not be solved within the walls of the federal penitentiary. They are problems that need to be examined and resolved often way before people get into a conflict with the law and before they make their way into a federal penitentiary.

My office has made several recommendations. You have fellow senators who have been involved in studies who have made several recommendations around the need for alternative service delivery models, better federal-provincial- territorial coordination and a pan-Canadian strategy that links mental health and corrections. There have been studies and recommendations made about training needs, the role of police, the role of emergency room triage nurses and everyone else involved in this issue of mental-health courts and other problems-solving courts.

I agree with you. If you think you are frustrated, senator, I would invite you to come and spend some time with me.

Senator L. Smith: You mean you lost your hair over this?

Mr. Sapers: Thank you for noticing, senator. Yes, there is much to be frustrated about.

Senator L. Smith: I did not mean to pick on you. If you have already done it, congratulations. I saw the paragraph, it just caught my attention.

[Translation]

Senator Chaput: I have two rather brief questions. I would like to ask you, based on what is done currently — and I am referring to the accelerated review procedure as it currently stands — whether or not you think the system works well for the majority of offenders? Obviously I am excluding white-collar crime because that is not covered by the current system. Do you think the system works rather well?

[English]

Mr. Sapers: My assessment is that APR has worked well for the population of offenders with whom it was intended to deal.

[Translation]

Mr. Zinger: To conclude, in 1998, Correctional Services Canada conducted an assessment of the accelerated review. The report by Dr. Brian Grant is available on the Internet and the English title is: Accelerated Parole Review: Were the Objectives Met?

That report's answer is yes. The question committee members may ask is this: are there any individual problematic cases? Should you consider eliminating it or simply attempting to find a way to make sure that those individual cases do not have access to the accelerated review?

Senator Chaput: I have another question that I am not too sure how to ask, but one hears a lot about punishing criminals. We have heard this today from some witnesses. There is a lot of talk about punishment. Of course an individual has to be punished for the crime he has committed. I do not have a problem with that.

However, where do rehabilitation and the social reintegration of these people fit in? How can we balance the two, punishment for an offence, but also rehabilitation back into society, because the safety of communities depends on rehabilitation and not only on punishment.

[English]

Mr. Sapers: I was trying to convince my colleague to take that question.

Senator Chaput: I thought so.

Mr. Sapers: Competing principles are at work, and we have discussed that a little. Along with deterrence and denunciation comes rehabilitation. There are also elements of compassion when discussing justice. It is always a balancing act. The key is that it is to be individualized. Every case is different; every person is different; every circumstance is different.

When APR was brought into effect, it was seen to be a solution to being able to provide more intense resources to those who could benefit from them, to get those resources out of expensive sentence administration and into less expensive, but just as safe, sentence administration in the community and to meet individual needs in community settings. That is in comparison to those who require their needs to be dealt with in an institutional setting.

[Translation]

Mr. Zinger: I can try to add to that response. If one looks at who is in the prison population, one can ask whether or not the right individuals are in prison. Sometimes you can end up scratching your head wondering about the success rate of our public policies. Twenty per cent of the federal prison population is made up of aboriginal persons, whereas they represent 4 per cent of the general population. More than 30 per cent have significant mental health problems. Approximately 7 per cent are black Canadians, which is three times higher than in the general Canadian population.

We are talking, for example, about the drug and alcohol addiction rate, and approximately 80 per cent of the prison population has a problem of that nature.

[English]

Senator Joyal: On page 3 and 4 of your presentation, if I understand your numbers, you say that 5,227 offenders will be denied access to APR as a result of this legislation.

Mr. Sapers: That is over a five-year period.

Senator Joyal: The closing paragraph of your brief invites us to reflect on "the ability of the system to accommodate more inmates." A significant number of offenders would have to stay in prison instead of being released halfway through their sentence as a result of this bill. Therefore, did you measure the impact on the number of additional personnel responsible for rehabilitation, additional psychologists or people who dispense those services and additional people from the medical profession who you will have to hire to address the fact that those offenders will still be under your responsibility for rehabilitation, advice and consultation instead of being in the community. What impact will that have on your workforce inside the prisons?

Mr. Sapers: Maybe the best way to answer is to refer to some of the earlier testimony from Mr. Head. He talked about the need for beds for slightly more than 400 incarceration years. That is about equivalent to a brand new 400- or 420-bed, medium-security institution, with the tens of millions of dollars in budgeting and the hundreds of staff required for its operation on an annual basis. That is the kind of impact we are having on the system.

As to the impact on my office, as I say, we receive about 30,000 contacts a year that lead to about 3,000 investigations a year. That is based on the existing 56 or 57 institutions. The bulk of inmates in Canada are held under medium security. It is easy to extrapolate that the bulk of our work comes at that level as well — our service delivery standards, et cetera — in terms of responding to those needs.

That is just dealing with the issues that come to the attention of my office. CSC also operates a very fulsome grievance complaint system internally that costs $2 million or more a year to operate between the costs distributed at the institution and at the level of the national headquarters.

We are talking about a significant impact by this one piece of legislation. I was hoping to encourage the committee to also think about this in the context of the other legislative proposals being considered.

Senator Joyal: In the short term, if this bill is adopted this week and is proclaimed later in the days ahead, you will have to face the problem immediately. Those prisons will not be built. The people you will have to train will not be in place.

What kind of clog will it provoke in the system next Monday?

Mr. Sapers: I do not know what will happen next Monday. We are preparing by hiring more staff and streamlining some of our own processes to respond to concerns that have been brought to us. I know the service is clearly anticipating the need for growth. You have some of the projected financial impacts in front of you now.

Senator Joyal: What does this represent in your office for additional capacity?

Mr. Zinger: Certainly as the incarcerated population grows, the demand for ombudsman services such as ours will also grow.

When there is more tension in the penitentiary system due to, for example, overcrowding, the number of complaints increases. We also review serious incidents within penitentiaries such as serious bodily injuries and deaths. Therefore, every bill that increases the overall incarcerated population has an impact on our office.

Senator Joyal: Would you say, generally, that the more time a person spends in prison, the more difficult it is to rehabilitate the person?

Mr. Sapers: Yes.

Senator Lang: I would make the observation, from the discussion that we have had so far, that one of the underlying principles here is that if an individual has committed an offence, there is a consequence, and they should pay a minimum consequence for that offence. I believe the public generally agrees with that observation. That is why the bill is before us.

Mr. Zinger, I believe said that the APR program as public policy was successful, which concerns me. My concern is about the statistics that I have been given. I believe they are from last year or maybe two years ago. It states that 72 of 831 offenders granted parole under the APR policy had their full parole revoked for committing a non-violent offence. "Non-violent" does not sound that grave in those terms, but many of these offences have to do with drugs, insidious conduct by people who affect other people's lives, families and throughout the system. That has to be clearly expressed when you talk about non-violent offences.

Compare that to the 22 of 527 offenders who had their parole revoked who were released under a regular procedure. The first statistic under the APR shows that almost three times as many offenders actually violated their parole. I do not think that is a very good success rate, quite frankly. In that particular process, you did not have to go through a general review.

Perhaps you could comment on the comparison of those two processes.

Mr. Zinger: When I said that APR met its policy objective, that comment was based on a research finding by CSC. It is their research report that came to that conclusion. I just wanted to clarify that.

With respect to how much APR is responsible for the failure rate of people who committed another offence, although non-violent, I would only say that in criminal justice policy, we are trying to predict human behaviour, and unfortunately you can never be 100 per cent sure of your prediction or have a 100 per cent success rate. That would require policy- makers to simply lock people in for the entire length of the sentence. That approach has negative public safety consequences. The research is quite clear, that gradual, safe release that is well supervised provides the best results possible.

It is never perfect, but according to the research report from the Correctional Service of Canada, it is successful. I will leave it there. Perhaps Mr. Sapers can add a few comments.

Mr. Sapers: I do not want to belabour the point. Canadian conditional release success, parole success, whether it is day parole, full parole, APR or the regular stream, is actually pretty high by international standards.

You are talking about recidivism. In your figures on those not completing their period of parole for committing a new crime — and I am not sure whether that was being charged, convicted or returned to a federal penitentiary — in the one case, you were talking about a 7 per cent or 8 per cent return rate, maybe 9 per cent. The other case was 5 per cent or 6 per cent return rate. As they say, one is a failure. If there is an 8 per cent failure rate, it means a 92 per cent success rate. In social policy, in my experience, when you start hitting numbers in the 90s, you are doing very well. There is no reason to rest on our laurels or pretend that the system is perfect because it is not. Those numbers stand well over time and also in the international community.

The Chair: Senator Lang, I will interrupt and explain something here, if you do not mind. One of our difficulties, as you know, is that we have many panels of witnesses still to appear. One of the witnesses on the next panel has to catch a plane. I am asking everyone, including the witnesses, to be very concise.

Senator Lang: I will be brief. My point is that there are two different processes for granting parole. My understanding is that one is administrative in large part and the other is a hearing process.

If you talk about 90 per cent being the success rate, what happens on the street with the 10 per cent who are not part of the success rate? It is called public safety. I rest my case.

The Chair: Did you wish to comment, Mr. Sapers? No.

[Translation]

Senator Hervieux-Payette: I just have one question, still on the female population. Could you give me an idea of the age group? Are we talking about people under the age of 30? Are we talking about mothers? You said that 30 per cent have psychological problems. What interests me, and I am once again referring to the aboriginal population, is who will pay the price for this legislation, what their level of education is, their employability, and what kinds of services they are offered in the halfway houses that will help them re-enter society?

[English]

Mr. Sapers: We can get you detailed profile information from CSC, and we can either provide it to you or direct the request to them.

I can tell you, off the top of my head, that you are dealing with an inmate population at the federal level under the age of 35 typically serving sentences of about 44 months on average with typically an education of grade 8 or less, with co-morbidity in terms of mental health and drugs of maybe over 70 per cent and a history of drug or alcohol abuse at around 80 per cent. The number of the mentally ill, as opposed to those who have a significant diagnosis, who could benefit from mental health intervention could be as much as a third of the male population and 50 per cent of the female population.

The other details are available; CSC does have detailed inmate profile information.

Senator Hervieux-Payette: I would appreciate it. We are here not only for the short term but also for the long term, and we have much to do when it comes to getting on board in the mainstream of the population of Canadian Native women. I do not think we are taking the right path with Bill C-59, keeping them in jail, conducting hearings and so on, when the root causes of the problem are not being addressed.

Senator Runciman: Senator Hervieux-Payette has no problem with Earl Jones walking after 22 months.

The Chair: I would not get into personal exchanges of that nature, Senator Runciman.

Senator Runciman: I will follow your advice, Madam Chair.

Senator Smith raised the issue of mental health, and your office has strongly advocated looking at alternative delivery options with mental health. I was going by Mr. Head's figure of 13 per cent of the male population, which works out to 1,800. You are talking about a significantly higher number, a third.

Mr. Sapers: Yes.

Senator Runciman: You talked about a 400-bed, medium-security facility. Obviously if this issue was addressed, it could certainly have an impact on lessening the bed pressures in the system if they were actively pursuing alternative delivery options.

When I discuss this point with Mr. Head, and I think you were present, he indicated that CSC is pursuing this matter. Do you have a view on how actively is it being pursued? How optimistic are you that we will see something happen in the next year or so?

Mr. Sapers: I am an optimist. It comes with the territory. It is being pursued. Actually I do not have an opportunity very often to reflect on some of the more positive initiatives. In the last couple of years, CSC has responded very well to the mental health challenge. We are beginning to see some of the fruits of that response ripen a little. One of them is the pursuit of alternate service delivery models. I am anxious for that to accelerate. There is enough evidence around the challenges and the need. The issue now is how quickly the service can put into practice some of the alternatives that have been identified. They include co-locating mental health and corrections, different kinds of contractual relationships and entirely new program delivery models within corrections. Those are just three examples.

I am optimistic. I am a little anxious that we may lose the sense of urgency if other matters get in the way, such as dealing with crowding. However, I am pleased with the direction of the response.

Senator Runciman: That is good to hear.

The Chair: Thank you, gentlemen.

We resume our study of Bill C-59, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts.

We have an array of eminent witnesses for this section of our proceedings. From the Canadian Bar Association, CBA, we have Ms. Gaylene Schellenberg and Mr. John Conroy, who is a member of CBA's Committee on Imprisonment and Release.

[Translation]

From the Association des avocats et avocates en droit carcéral du Québec, we have Joëlle Roy, Vice-President of the Association québécoise des avocats et avocates de la défense; Jacinthe Lanctôt, Vice-President of the Association des avocats et avocates en droit carcéral du Québec; Stephen Fineberg, representative from the Barreau du Québec, and finally, Marc Sauvé, Director of Legal Services of the Barreau du Québec.

[English]

Mr. Stephen Fineberg is also from Barreau du Québec. My list is not quite the same as the order in which you are seated, so I improvised.

Mr. Conroy has to leave to catch a plane in probably 27 minutes or so. Therefore, I will ask the Canadian Bar Association to lead off these proceedings. Ms. Schellenberg, please go ahead.

Gaylene Schellenberg, Lawyer, Canadian Bar Association: Thank you for the opportunity to present the Canadian Bar Association's views on Bill C-59 today. The CBA is a national association of over 37,000 members including lawyers, notaries, law students and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. It is that aspect of our mandate that brings us to appear before you today.

Mr. Conroy is a member of the Committee on Imprisonment and Release of the CBA's National Criminal Justice Section. The section consists of defence lawyers and prosecutors from all across the country. Mr. Conroy has practiced criminal law for 40 years and is a prison law expert from Abbotsford, British Columbia. I will leave it to him to address the substance of our brief and answer any questions.

John Conroy, Member, Committee on Imprisonment and Release, Canadian Bar Association: I have to leave because I have an APR panel hearing scheduled for tomorrow in one of the institutions. I am racing to beat your potential proclamation date. I will use that to explain how the system works because I am concerned that there is some misunderstanding about how the system works.

Senators, you have our CBA letter of March 15. In the first paragraph, we outline a careful, detailed review that should be done in relation to this bill. This whole process lead to what is now the Corrections and Conditional Release Act and started back in the early 1980s with the Archambault sentencing commission report. That was followed by a Green Paper response from the Mulroney government. Then there were further papers back and forth that ultimately led to the first version of the Corrections and Conditional Release Act. Initially, one-sixth day parole was the law for all offenders. Therefore, the change that was made was not to benefit violent offenders. The change was to make it six months prior to full parole for the non-violent offenders. The one sixth is something that used to exist for day parole for many years. One third has always been the full parole date.

Given the amount of information and consideration that went into putting this into place, we urge you to take more time to look at it before making a change that will significantly impact not just people who have yet to be sentenced but, for example, the person who I have tomorrow. He was investigated by the Correctional Service of Canada when he was sentenced. The process is to identify in the first 30 days whether someone is eligible for accelerated parole, whether they meet the criteria. Then, that person is still subject to the full assessment by CSC. Having been sentenced, they are in the reception centre; the institutional parole officer is assigned and gathers information from the Crown, the sentencing, any police report out there that has a stay of proceedings, suspicions, et cetera.

The person will be classified as maximum, medium or minimum security according to the criteria in the act. For most non-violent offenders, the criteria will be based on how they are in terms of institutional adjustment, the risk of escape and the risk to the public in the event of an escape. Public safety is the critical factor looked at for the classification. If the person is eligible for accelerated parole, all of that information goes to that single board member. Therefore, not just an assessment for a decision that recommends that the person be directed or not but also the criminal profile report, et cetera, all of the stuff that comes out of an assessment and classification goes to that single board member. That person asks whether there are reasonable grounds to believe that the person is likely to reoffend in a violent manner before warrant expiry. If that board member thinks there are grounds that the person is likely to reoffend in a violent manner, they send him or her to a panel hearing, which is the situation I have tomorrow.

Drug offenders and other non-violent offenders are investigated to determine whether or not they are likely to be violent. For a drug offence, you might have a person convicted of a non-violent offence, but evidence in the circumstances might indicate that the person may be violent. The board considers that to determine whether the person should be directed or not. The focus is always public safety from a violence point of view.

The reason this dichotomy arose was because the sentencing commission and others determined that the longer we keep people in prison, the worse they get; they do not get better. The statistics in the materials dealing with those offenders on statutory release and those who are detained to warrant expiry tend to support that. The idea was that we need to protect the public by keeping the violent offenders in, pushing back their eligibility to six months prior to full parole and then programming them inside because public safety is the key.

However, with the non-violent offenders, we said the sooner we move them out, the better. It is fiscally responsible to do that because it costs a lot of money to keep people in prison. If they are not getting better in prison, why are we doing that? If we do not need the walls for this type of an offender, the sooner we start that process of reintegration, reformation and rehabilitation, the better it would be.

That was certainly the thought. I do not know if this has come into practice; and a lot depends on whether the judge at sentencing imposes a restitution or compensation order. However, when you get that non-violent offender out, remember, he will mostly go from a lesser security institution, because he is non-violent and not a risk to the public, to a halfway house. That is what day parole is.

When they are on day parole, subject to the conditions the board has imposed — regular conditions and any special conditions that target that individual — they are in a halfway house. They are expected to find work, continue with school or certainly continue programming. One of the hopes and expectations was that instead of spending the money to keep these people in prison when it is not necessary, we would hopefully get them in a position where they could start supporting themselves so that the taxpayers are not paying for it, and they are in a position to start making restitution or compensation to the victim. The idea is to get them back out working and doing that instead of costing us money.

Public safety, fiscal responsibility and victim concerns were taken into account in trying to structure this type of a process. A full assessment is done. It is not just a presumptive release. The board member initially looks at it. If that board member thinks there are no grounds, certainly the person is directed to APR. However, if that board member, upon looking at that entire file, thinks there are grounds, the person moves to a panel hearing.

One of the big problems is how to deal with a stay of proceedings. It is the Crown that decides to stay something, yet it might appear on the person's file. My experience is that CSC and the parole board treat that as a conviction, even though the person has not been convicted.

All of these things that are short of a conviction are taken into account by the single board member and by the panel that then decides whether or not to direct. Public safety, in terms of potential for violence by a person only convicted of a non-violent offence, is still the critical factor in addressing the question of accelerated parole. However, the view is that we can work better with them being out on the street as opposed to being incarcerated.

That is all I need to say other than if you do pass this bill, as I am sure many others have said to you, it will increase overcrowding and costs, and it will make it more difficult to try to ultimately prevent people from reoffending and coming back after the commission of a sentence.

[Translation]

The Chair: And now, if I may, I will follow the order on my list and we will move on to the Barreau du Québec.

Marc Sauvé, Director of Legal Services, Barreau du Québec: The mission of the Barreau du Québec is to protect the public, and in the social sphere, to promote the rule of law which is also part of protecting the public.

With me today for the Barreau's presentation is Mr. Stephen Fineberg, President of the task force on parole, who has been working in prison law since 1985. The Barreau shared his concerns and his position on Bill C-59 with you in its February 15th letter addressed to the Minister of Public Safety. The Barreau's concern revolves around the retroactive application of the legislation. Mr. Fineberg will provide you with explanations on this point.

[English]

Stephen Fineberg, Representative, Barreau du Québec: We shall use our few minutes to express our misgivings about the retroactive application of this bill. Our objections are twofold: First, the retroactive application of Bill C-59 erodes the rule of law and the credibility of the legal system in the eyes of offenders and the public, with the attendant consequence of undermining the rehabilitation of offenders as law-abiding citizens; and second, there are serious doubts about the constitutionality of such a measure.

This is the first question that arises: Is a liberty interest, as meant by section 7 of the Charter of Rights and Freedoms, engaged where a category of offenders must wait longer to be eligible for release and must meet a more difficult test than the one currently found at section 126 of the Corrections and Conditional Release Act?

Common sense says yes; so does the Supreme Court of Canada. In R. v. Gamble, the court found that a change in the law, increasing Janise Marie Gamble's parole ineligibility period, deprived her of an important residual liberty interest encompassed by section 7 of the Charter.

The Supreme Court returned to section 7 in Cunningham v. Canada. The court's ruling confirmed that while section 7 does not protect against trivial limitations on liberty, the difference between life inside and outside the penitentiary is significant, and release accordingly may be restricted retroactively only in accordance with section 7 principles of fundamental justice. It also confirmed that respect for a legitimate expectation of release is one of the principles of fundamental justice. Therefore, one sees that the offender's legitimate expectation of accelerated parole release is a factor the courts will consider when dealing with the retroactive operation of Bill C-59.

A group of Quebec's most experienced and distinguished criminal lawyers has written to this committee expressing their strong opposition to retroactive application of Bill C-59. They remind us that the vast majority of cases before the court are disposed of with guilty pleas. Surely, among those affected will be many who pleaded guilty in at least some cases despite their innocence to put to an end to a difficult term of preventive detention or to avoid the cost of a trial secure in the legitimate expectation that the corrections and release regime that they were assenting to would govern their sentences.

Sullivan and Driedger on The Construction of Statutes states the following:

The most compelling concern underlying transitional law is the rule of law and the values served by the rule of law — certainty, predictability, stability, rationality and formal equality. . . .

Perhaps the most fundamental tenet of the rule of law is that those who are governed by law must have knowledge of its rules before acting. . . .

This has given rise to a strong presumption that laws do not operate retroactively. To rebut that presumption, Parliament must express that intention in unambiguous language but also meet the further requirement of a special justification. Retroactive laws may not be adopted whimsically.

Bill C-39 sought the abolition of APR, but not retroactively. If the shift to retroactivity eight months later is not whimsical, this chamber must be able to identify the new and principled reason for stripping prisoners of their legitimate expectation that APR will govern their sentences — obviously, here we speak of people already sentenced. However, the only justification advanced is that the entire group must be sacrificed so that Earl Jones and a handful of large-scale fraudsters may be dealt with severely.

In Cunningham, the Supreme Court of Canada considered the retroactive introduction of detention reviews to replace automatic release at two thirds of the sentence. The court ruled the principles of fundamental justice involve striking a fair balance between the offender's interest and the protection of society and that the balance was achieved there as the new regime introduced a full and fair hearing and allowed prisoners' releases to be curtailed only when required to protect the public from violent crime. These features obviously play no role when APR is being repealed.

Turning to section 11(i) of the Charter, we see that this provision states that if the punishment changes between the time of the offence and the time of sentencing, the lesser punishment must apply. A jurist, Don Stuart, in his authoritative work on criminal law, says that the word "punishment" appears to include any changes in sentence administration, new parole eligibility dates, new rules in respect of revocation, parole forfeiture, and so on.

The Ontario Court of Appeal has held that "the period of ineligibility for parole is part of the punishment for the offence." The Newfoundland Court of Appeal has found that for the purpose of section 11, "Punishment may also encompass any coercive or punitive treatment likely to discourage or deter an accused (and sometimes others) from a repetition of criminal activity."

The Alberta Court of Queen's Bench has ruled that section 11(i) entitled the prisoner to have her parole eligibility determined by the legislation in force at the time of her offences. Finally, in R. v. Gamble, Chief Justice Lamer cites with approval the view of Justice Iacobucci in R. v. Shropshire that "parole ineligibility is part of the 'punishment' and thereby forms an important element of sentencing policy."

To conclude, no matter how the loathsome behaviour of certain individuals may tempt Parliament to respond with overwhelming force, legislators governed by the principles of fundamental justice cannot afford the luxury of targeted reprisals. Such behaviour falls outside of Canada's democratic tradition.

Principled opposition to retroactive criminal justice legislation does not flow from political philosophy or political affiliation but from everyone's duty to rally around the rule of law. Therein lies the interest of the Quebec Bar. That is our cause. We think it should be your cause, as well.

With the transitional provisions of Bill C-59, Parliament starts down a new and dangerous road. If ever there was a need for sober second thought, that occasion is now.

[Translation]

Jacinthe Lanctôt, Vice-President, Association des avocats et avocates en droit carcéral du Québec: I thank the committee for giving us the opportunity to appear before you.

L'Association des avocats et avocates en droit carcéral du Québec was founded in 1992 and gathers together lawyers who represent prisoners before the various decision-making authorities, including the Parole Board. The Association agrees with the remarks made by Mr. John Conroy in his document concerning the constitutionality of Bill C-59. We also agree with the questions raised by the Barreau in this regard. I will not add anything more on this issue at this point.

The Association believes that accelerated parole review is still relevant. Today, we would like to make you aware of certain aspects of the actual use of this procedure. It is wrong to claim that this is an automatic procedure and that the board has no choice but to rubber stamp these decisions concerning day parole or parole in cases of accelerated parole review.

This procedure begins as soon as an offender arrives at an institution, at the intake centre in the various Canadian provinces. A case management team handles the file individually and collects all of the relevant information. Mr. Conroy gave you some examples: police reports, transcripts of the sentencing or the court judgment, the offender's record, community investigations of family members in order to verify, in particular, if there was any domestic violence or any other information likely to be of interest to the stakeholders, including the board, information that was not necessarily raised in court.

After having collected all of the information, the case management team will meet the offender. The team is made up of criminologists and professionals. There will be a meeting to assess the inmate's accountability regarding his criminal behaviour in order to discover what the criminogenic factors were that caused the person to commit the crime. All of this information will serve to paint a picture of the individual, to verify their potential for violence and also their general risk of reoffending with non-violent offences.

All of this information will allow the criminologists responsible for the assessment to make a positive or negative recommendation to the board, to propose rehabilitation programs, conditions and appropriate supervision for day or full parole.

This information is sent to the board's offices and the board members who will be responsible for the case will examine it in order to be able to make an enlightened decision. If it is a clear case, it will be a paper review, without a hearing. If there is any concern at all about the case, the individual will be met in a hearing before two board members.

Whether there is a paper review or a hearing, there are two aspects to the accelerated review. The first, of course, is the individual's potential for violence; the risk of this individual committing a violent offence before the end of their sentence, if there are reasonable grounds to believe that he or she will commit a similar offence. The other important aspect is the general risk of non-violent reoffending. It is not just a matter of saying that this person does not have a potential for violence, and they should be released. No, we also assess their risk of general recidivism. Why? Because this second component serves to determine what kind of supervision the offender, who will benefit from an accelerated parole review, must have while on day parole or on full parole. Most offenders who have a long sentence to serve will find themselves in a closed transition house, in order to do work in the community. Their freedom is very limited. Some prefer staying in the institution rather than going through this stage. This very limited freedom boils down to doing work in the community in a designated area, supervised by Correctional Services Canada. They must immediately return to the transition house at the end of their working day. They have a route they must take to go and to return. They cannot stop anywhere, not even at a corner store to buy a bottle of water. They must comply with what was recommended to them.

The board, I understand from its policies, considers that this kind of day parole allows offenders to work on their values, to make them aware of disadvantaged people and to improve themselves. This is not only for people serving long sentences, but also those serving very short sentences who might be directed to these closed transition houses, according to the risk the individual represents and their needs.

For the other sentences, offenders may be subject to day parole or they may be in a regular halfway house having followed drug treatment programs beforehand, or if necessary other programs that would address their criminogenic factors, such as mental health programs for compulsive gamblers or any other program that would address those issues.

Even when eligible for full parole, at one-third of the sentence, let's say an offender is released after having served one-sixth of his sentence, he is sent to a regular or closed halfway house, when he or she reaches one-third, there would be special conditions. It could be that the board imposes special conditions on them to live in a halfway house for several months if the general risk of reoffending justifies it. There is not only the risk of violence that is important for the board in this procedure, but the general risk of reoffending is equally important in order to determine what supervision the offender will require within the community.

Therefore, nothing is automatic. The board has criteria, decision-making policies that they apply in all cases. One of the criteria for granting accelerated parole review is the degree of indifference. If the offender shows not only a risk of violence, but the board considers that their degree of indifference to the criminal behaviour is present or very present, they may be refused. This is part of the decision-making policy of the board.

In fact, this procedure represents societal value, the belief in rehabilitation, the belief that the punishment the sentence represents may be a period which would allow the individual to change their path, if appropriate assistance or support is provided, without undue risk to society.

This procedure is one providing a unique opportunity. If the parolee violates a condition or if the people responsible for the supervision believe that he or she may breach a condition, the person may see their parole suspended and may be re-imprisoned. And, this time, they will be reassessed according to the general risk of recidivism, the same criteria used for all other offenders. They will no longer be assessed according to the accelerated parole review criteria.

The Chair: Ms. Lanctôt, you know that we have very little time. It is not that your comments are not interesting, in fact they are fascinating. But could you perhaps move along to your conclusion?

Ms. Lanctôt: All right, I will skip a few paragraphs. I believe as do the others who have already spoken that access to programs within the institutions is already problematic. There are waiting lists. It is very likely that offenders who have been given short sentences will not have access to programs and they will be released after serving two-thirds of their sentence. The board's assessment criteria will be the same for everyone.

They will have to demonstrate that they have made changes, that they have dealt with their criminogenic factors before being able to benefit from parole.

For those offenders serving a first sentence in a penitentiary, who had little or no history of criminal activity, the danger of contamination in the prison is very present. That is part of the costs. As for the consequences of repealing this procedure, one must ask if that is what our society really wants.

[English]

The Chair: Mr. Conroy, I know we have ordered a cab for you, and the weather is not great out there. I will thank you. You have come a long way to help us with our work today, and what you said will be taken seriously, believe me. I am sorry that we cannot keep you here for an infinite length of time to put questions to you.

Mr. Conroy: If you would like to delay this and carry on, they could send me emails, and I could respond that way in this modern day and age.

The Chair: It is not admissible as evidence yet, I am afraid. However, we thank you very much.

Mr. Conroy: It is the first time I have been a witness and got away without being cross-examined.

[Translation]

The Chair: And now Ms. Joëlle Roy, vice-president, Association des avocats et avocates de la défense du Québec.

Joëlle Roy, Vice-President, Association québecoise des avocats et avocates de la défense: I will heed your comment and be very brief. I do not want to repeat everything that I heard here this afternoon. There are experts here in prison law. The Association québécoise des avocats et avocates de la défense du Québec has had more than 800 members for 15 years. It is more and more active.

We are here today to ask a simple question; we are here as witnesses, but why do we have this bill? Why act so quickly? Why? The bill was tabled in February 2011, and we are already here at the Senate committee. That is very little time to rethink all of this.

Furthermore, we have a system — I heard the correctional investigators earlier on — that works, the accelerated parole review. I agree entirely with Ms. Lanctôt. So why change the system? It is a system based on lasting rehabilitation. That is what we want as a society.

This afternoon I heard, from one side of the table, that the name Earl Jones was coming back. I know that there are subsequent witnesses who will speak specifically to that case. And that, in my opinion, is rather dangerous: because it is creating legislation for one man, legislating for a single case, and that is dangerous. We should not change a law that is to the benefit of all offenders, who benefit because there is rehabilitation; we did hear talk about that.

As an aside, may I ask if this is a policy that is totally electoral? It looks good in the papers, we had Vincent Lacroix and now we have a bill that is coming back and there is a direct connection.

I am concerned about the cumulative effect of all of these increasingly repressive bills that we have seen over the last few years. I testified on Bills C-15 and C-25. I am worried about this mix, the mandatory minimums, and now we are talking about prisons, and wanting to abolish the one-sixth rule. I find this extremely worrisome.

[English]

Senator Wallace: Thank you, Madam Chair, and thank you, witnesses, for the presentations. They were very thorough.

Mr. Fineberg, I will direct my first question to you, if I may. If I heard you correctly, you made a statement that the justice system, in your words, should not be subject to the "overwhelming force" — I think those were the words you used — as represented by Bill C-59.

I am not sure that I see it that way. I would suggest this to you, and I am interested in your response. I do not see it as overwhelming force. It seems to me to be an attempt to bring greater equality before the law, which is an established principle of law, that we not have one set of rules that applies to violent and non-violent offenders — at least to the extent of parole — and then have different criteria that apply to each in determining their eligibility for parole.

That goes against the grain of the principle of equality before the law. With violent offenders, there is the element of the protection of society; I understand that. It is the protection of the physical person. However, society has other needs and requirements for protection other than the physical person.

With the current accelerated parole review process, by creating a different set of rules for non-violent offenders that applies to drug traffickers and drug producers. Certainly there is an element from those types of offenders from which society needs protection as well, particularly children.

Do you really believe that Bill C-59 represents overwhelming force as opposed to an attempt to create a more even playing of field with greater equality before the law? In that regard, if Bill C-59 were enacted into law, the considerations that would be given within the discretion of the parole board would apply to both categories of offenders, violent and non- violent. The parole board would have that discretion. My sense is that such provisions would bring greater equality to the system.

I would appreciate your reaction to that and would like to see if you would disagree. From your comments, I think you would, though I am not sure that I understand the rationale.

Mr. Fineberg: I see that I caught your attention. Please allow me a partial answer. We refer to "overwhelming force" in part because when we look at the debates in the House of Commons around this bill, we see constant references to Earl Jones and a limited number of large-scale fraud artists. We understand that people have proposed that the bill be amended so that it excludes certain categories of crime that the Canadian public and Parliament find extremely objectionable so that they will not be eligible for APR, but instead the decision has been to abolish APR for everyone.

We speak of overwhelming force because of the unusual use of retroactivity here. We have argued today that retroactivity requires a special justification, and we see that measures could have been taken without resorting to retroactivity. This is what we came to speak about today. As I mentioned in my presentation, the Quebec Bar is not here as a matter of social philosophy or political affiliation. We think the rule of law is called into question by imposing this abolition retroactively on people who had a legitimate expectation.

The mission of the bar is not to adopt and advance a social philosophy. That is why I say that the answer is partial. I am sorry to disappoint you. The bar has not taken a position on APR as public policy. We have taken a position on the retroactive application of this bill.

Senator Wallace: To follow up on that, perhaps I would direct this comment to Ms. Roy. She was quite emphatic in referring to the Earl Jones circumstance and that we should not be legislating changing the Criminal Code provisions for one man, one person, one case. I think we would all agree with that.

Where I would differ from you is that I believe the Earl Jones situation has drawn attention to an inequity that exists within the Criminal Code as to how we treat violent and non-violent offenders for the purpose of parole. I think the rationale that many thought supported that difference tends to fall away.

Yes, Earl Jones and his victims have certainly attracted attention. Because of that, a far greater need is being addressed through Bill C-59. I would come back to the example of non-violent offenders who would be involved in drug production, trafficking, importation and exportation and many other examples of serious non-violent offences that would be captured by the enactment of Bill C-59. I would be interested in your comment.

[Translation]

Ms. Roy: I will answer you in French because my Beauce English would make several of you laugh.

Senator Carignan: It is your constitutional right.

Ms. Roy: The parole board does the job and knows the subject. But indeed, I really wonder when I see people like Earl Jones and Vincent Lacroix on the front page of the papers. They are convincing arguments, in my opinion, because people are disgusted. We are talking about business people and small investors who have lost their life savings. It is obviously tragic.

Mr. Earl Jones will serve his sentence like anyone else. He will be eligible for parole just like anyone else, and let us not forget the rehabilitation process. The parole and rehabilitation process will have to be explained to the population in general. Mr. Jones will not simply be going home after having served one sixth of his sentence. As Ms. Lanctôt emphasized, Mr. Jones will be released under supervision.

Our system focuses on rehabilitation, and that is very good. There is sometimes a problem on a case-by-case basis, where Mr. Jones meets the criteria and we decide that there is no risk of reoffending, indeed, because we are talking about a non-violent crime. Senator Wallace, you spoke of crimes involving narcotics. These crimes are treated marginally, and involve organized crime and often searches. The parole board is not easily fooled. Investigations are carried out and they dig deep. Parole is not freely granted. There is a lot of work underlying these decisions.

I do not know if I answered your question.

[English]

Senator Wallace: Indeed, they do. Of course, if Bill C-59 is enacted, the parole board will be able to apply the same consideration to all offenders that appear before them seeking parole, whether violent or non-violent. To that extent, they would be able to recognize victims. Victims could appear before them and make representation, which, in the case of APR, they are not able to do. I quite agree with you about the discretion capability and the general abilities of the Parole Board of Canada. They would be enhanced with this.

[Translation]

Ms. Roy: That is another aspect. When we talk about victims, we must ensure in the criminal process, in the rehabilitation process and in the sentencing process that we do not mix apples and oranges. When a person pleads or is found guilty, we talk about victims. However, the sentence or the rehabilitation is individual. We cannot cancel the crime that was committed. It is not an eye for an eye, a tooth for a tooth. The judge will hand down the sentence that he feels is fair and appropriate, according to the circumstances. The fact of being a victim is something apart or parallel.

If we include the system of victims testifying before the court when we talk about parole, it could be a slippery slope and that is dangerous because we are turning towards another aspect; obviously, vengeance is never a good adviser.

[English]

Senator Wallace: I do not think Bill C-59 is about vengeance, but thank you very much.

[Translation]

The Chair: Ms. Lanctôt, did you want to add something?

Ms. Lanctôt: Yes, I do not know if I can answer the senator's question.

The Chair: Yes, go ahead.

Ms. Lanctôt: You referred to a dual test regarding offenders who have committed violent acts and others who have not. As I explained, it is not a matter of a dual test. The risk of violent reoffending and the risk of general recidivism apply in all cases, both for those who may be eligible for early parole as well as for offenders who are in a penitentiary for a second or third time, and who have committed violent offences.

This criterion is always the first concern for the board in all cases. Is this person truly violent? If they committed a violent offence, will they reoffend? Have we addressed the factors? The difference would be the rehabilitation measures, which ensure that if the offender has no history of violence or is at a low risk of committing a violent act, he will have a different rehabilitation measure, obviously, than someone who is in a penitentiary for having committed robbery with a loaded weapon. The supervision and the measures would be different.

This accelerated parole review procedure allows not for a different assessment, but to have a rehabilitation process that is faster because we consider that these people can be rehabilitated more easily and more quickly by having programs in the community, for example.

So when you talk about a dual test, I must respond. The criteria are the same for everyone. It is the rehabilitation that is different.

[English]

Senator Wallace: The effectiveness of rehabilitation for those who are subject to the accelerated parole review process, as we heard from previous witnesses, is very poor indeed. Eighty per cent of them do not even apply to receive rehabilitation.

I appreciate your comments.

[Translation]

Senator Joyal: Mr. Fineberg and Mr. Sauvé, I would like to come back to the issue of the constitutionality of the bill. It is not a fanciful question because the objective of the bill was to deal with the Earl Jones case mainly, as you stated and as some other witnesses mentioned. That is the argument put forward for dealing so quickly with the bill. In fact, if its constitutionality is not watertight, the primary objective of the bill, which was to keep Mr. Jones in prison, is at risk of not being met. Earl Jones' victims should be as concerned as I am or as we are about the certainty and integrity of the constitutionality of this bill.

Having said that, we had an exchange on this subject this morning with the Minister of Public Safety. In answer to questions raised about the constitutionality of the retroactive provisions of the bill, the minister gave us two examples.

He gave us the example of legal fees that would increase once the person had been sentenced and served their time in prison. He also gave us the example of legislation, which was later amended, which obliged a prisoner to provide DNA samples. Therefore to his mind, these were changes that could affect the conditions of the sentence served by the individual.

My perception is that, fundamentally, what this bill does is to prevent the person from being released sooner than in the system we currently have, to be released six months, one or two years before the end of the term. It is significant for the person. As stated in section 7, it is depriving someone of their freedom. At that point in time, the accused must or may know what their options are in order to regain their freedom. Here what we are doing is that people who might have pled guilty in the past or decided on their plea did so according to the access they would have to the parole system.

And now, what we are doing is changing those conditions. They are much more significant changes than increasing the fees to get a copy of the file or even to get a fingerprint, or provide some DNA.

In my opinion, have the interpretations of the Supreme Court or the courts of appeal of Canada defined what change to sentence conditions would be considered unconstitutional? Because fundamentally, that is the question: are the changes that we are currently making of such a nature that the person who decided on his guilty plea would have made a different decision had he known that he would not have access to parole after one-sixth of the sentence?

Mr. Fineberg: We do not have the caselaw that deals precisely with that issue before us. We have studied the Supreme Court decision in Cunningham because the context is somewhat similar; the issue was a loss of freedom. Cunningham had committed manslaughter in a way the court described as brutal and received a 12-year sentence. After six years, he turned to the court because, after the sentence was imposed, Parliament passed legislation that resulted in parole no longer being automatic after two-thirds of the sentence was served, under Bill C-57 at the time, which was in 1987. Rather than being automatically released after serving two-thirds of the sentence, he had to appear before the parole board. And the parole board had the duty to keep him in custody until the end of his sentence, if the board had reasonable grounds to believe that he would likely commit another offence causing death or serious injury to someone.

And Mr. Cunningham felt that Parliament did not have the authority to impose such a measure retroactively. In Cunningham, the court decided that Bill C-57 was constitutional. But if we go through the same exercise in the case of Bill C-59, the Barreau wonders if the court would arrive at the same conclusion. And we have serious doubts about that.

In Cunningham, the court clearly stated that to know whether the principles of fundamental justice are respected, which allows for the passing of the bill retroactively, the protection of society must be weighed against the interests of the prisoner, and that is why we say that it is more or less the same context, that is the legitimate expectation of the prisoner to be released, versus the protection of society.

And the Supreme Court said in Cunningham that the balance favours the bill. Why? Because the bill that was passed, C-57, would protect society from the worst possible prisoners, the most violent, and the board's new powers would allow the parole board to remove the legitimate expectations only when it was necessary, where there was an urgent need or where the need was real.

Moreover, the Supreme Court in Cunningham stated that the principles of fundamental justice were respected because this would occur through a full, fair and equitable hearing. Cunningham had the right to be represented for his defense and in that context, the Supreme Court concluded that the balance favoured the passing of a bill retroactively. But in the case of Bill C-59, it is exactly the opposite. There is already a review by the board in place, and if necessary, a board hearing. The board's review exists in order to distinguish between dangerous offenders and non-dangerous offenders.

So, it is exactly the opposite of the reasoning in the Supreme Court decision in Cunningham. That is why the Barreau has serious doubts. That is one of the reasons why the Barreau has some questions about this.

Senator Joyal: Are there any other appellate or Supreme Court decisions defining the acceptability of changes to conditions of sentencing?

Mr. Fineberg: First of all, let me just say that in the United States, it is unconstitutional to pass retroactive legislation affecting people's parole, but not in all situations. The U.S. Supreme Court test says: was the individual's release unlikely? So, the more unlikely the inmate's potential release, the less serious the consequences of retroactivity. That is the U.S. experience.

Here in Canada, there are decisions, for example, a decision of the Ontario Court of Appeal, R. v. Logan, in 1986, in which the Ontario Court of Appeal, which I cited earlier, said:

[English]

The period of ineligibility for parole is part of the punishment for the offence. The appellants are entitled to the benefit of the lesser punishment.

[Translation]

The Newfoundland Court of Appeal, in R. v. Lambert, in 1994, also refers to the punishment, not as case management, but as a charter-protected interest.

The Supreme Court in Gamble also dealt with section 7 of the charter, holding that parole eligibility involves the principles in section 7 of the charter, and considered access to parole eligibility. It affects principles in section 7 of the charter.

In the specific case of Bill C-59, will retroactive passage prove unconstitutional? We will have to see what the court has to say about that. But one thing is clear to the Barreau, there are serious questions, there are some very compelling, obvious arguments, and that will cause instability in the prison system. A lot of people will challenge the bill.

[English]

Senator Baker: I want to thank the witnesses for their excellent presentation and their attention toward this obvious problem in the bill. I was alerted to it by Senator Joyal, who had referenced the subject on other occasions as it relates to the wording in the bill being different from the wording that had been produced in 2009 in the original legislation. It was completely reversed.

You address it quite well. You have given case law on point, in that parole provisions have been defined to be a part of punishment by the Supreme Court of Canada. How much clearer can you get than that? That is under consideration of section 11(i) of the Charter; that is if the law changes between the time that someone commits an offence and he or she receives the sentence.

You are saying as well that the general population in jail, the law having now changed for their day parole, is covered, if I read you correctly, under the umbrella of section 7, fundamental justice, under the doctrine of legitimate expectations of parole.

Mr. Fineberg: When I speak of the Supreme Court decision in Cunningham, I am talking about the retroactive application of a new law that removes the legitimate expectation of liberty. In Cunningham, the Supreme Court of Canada recognized that Cunningham had a legitimate expectation because of the law under which he was convicted. The Supreme Court of Canada added that the legitimate expectation is one of the principles of fundamental justice protected by section 7, but it is not the only one.

Cunningham says that one must balance the interests of the legitimate expectation of the prisoner against the protection of society to determine whether or not the principles of fundamental justice have been respected. Therefore, I would not be able to agree that the adoption of any law that touches existing liberty necessarily will violate section 7 of the Charter.

When I referred to Cunningham, that decision allows me only to state that it appears that when a reduction in the liberty of the individual is done retroactively, then the legitimate expectation comes into play, and the principles of fundamental justice require a weighing of the interest of society against the interest of the individual. In Cunningham, the Supreme Court of Canada said that the interests of society prevailed because the law was designed to prevent the automatic, unstudied, unreviewed release of the most dangerous criminals in Canada.

Senator Baker: That is excellent. I will get to my main question in just a second. First, I want to ask you — because I know Senator Carignan will ask you this question — is this really retroactive legislation, or is it retrospective legislation in its application?

Mr. Fineberg: I wonder at this point if I am speaking for the Quebec Bar. Personally, it is clear to me that this is retroactive legislation.

Senator Baker: Not that anything turns on that, it is just that I was interested.

That it is unconstitutional does not mean that it is unlawful. It only means that there is a balancing done, as you pointed out, under section 1 of the Charter as to whether it is justified. When that is done, and even when a legislative provision is struck down as being unconstitutional and there is reading in or whatever the court may do with it — I think about section 488 of the Criminal Code, search warrants for lawyers' offices, or section 254(2), detention at roadside, judged to be an acceptable limitation on someone's liberties because of the carnage on our highways; that was the judgment of the Supreme Court of Canada.

In this case, we do not have to do an analysis of Driedger and Sullivan under the interpretation of statutes. The minister sat here today, in direct questioning from Senator Joyal, and said that they know what they are doing. The intention of Parliament was brought on by the Bloc Québécois, and they agree with them. They will do this. They know this is a retrospective application of the law. The minister admitted it outright that that is the intention of Parliament.

Does that change, as we say out East, the water on the bean? You know what the intention of the minister is; you know what the intention of Parliament is; this is their intention. This is what they intend to do.

How does that figure in the equation, as far as you are concerned, on an analysis? How would you bring it up, for all of those prisoners who will be subjected to this new provision who are presently serving a sentence? As Senator Joyal said, perhaps they made a decision to plead guilty based on this provision.

How do you see this being activated, by an originating application to your Superior Court in a particular instance? What does the minister's position do to your argument?

Mr. Fineberg: Before drafting this presentation, we looked at the law on retroactivity. We found a study by a jurist named Stephen R. Munzer, a 1977 article called "Retroactive Law" in The Journal of Legal Studies, which we found interesting. Munzer argues that not only must clear language be used, but, in addition, there must be a special justification for recourse to this very exceptional measure, retroactivity. The rule of law demands it. The values that underline the rule of law — stability, predictability, rationality, credibility — demand that Parliament not tamper with the existing situation of people, which Parliament has given them reason to rely on, unless there is a special circumstance.

In the case of Bill C-57 in 1987, there was a special circumstance. The Solicitor General at the time, Perrin Beatty, stated publicly that if the bill was not adopted retroactively, before the summer was over, a certain number of Canadians would die. Parliament voted for the retroactive application of that bill.

The special justification for that bill was there and the Supreme Court agreed. Where is the special justification for Bill C-59? That is what we are asking.

That is my answer to the minister. The special justification, if there is one, is that a certain number of individuals have drawn a great deal of attention from the public and from Parliament — and rightfully so. People are trying to do something about these individuals, but they are trying in a way that we wonder if perhaps the law does not allow.

It is possible that it is too late to change the rules that will govern Earl Jones' release. We do not take for granted that Earl Jones will be released if accelerated parole review is retained or if it is not retroactive. No one can take that for granted; the board will make a study of his case the way it does of other peoples' cases.

Is it possible that there is conjugal violence in his background? Who knows? They will look at all the factors. If he cannot be managed safely on the street, the board will see to it that he is not released. Even in the event that he had to be released, despite the nature and moral quality of his act, it is possible that it is too late to adopt a law that does something about it. That same law will affect other individuals across the country. I am speaking of the people already sentenced who have not done what Earl Jones did or what certain other large-scale, heartless fraud artists have done. It will catch the very people the accelerated parole review program was supposed to assist when it was adopted in 1992.

As Mr. Conroy has told you, it was not adopted for nothing. This law was adopted with good reason. It was meant to bring first-time federal offenders — often young, often relatively non-criminalized — out of a destructive milieu as early as possible. Those same people are being sentenced now and will be losing that release and the opportunity to reintegrate into society in a gradual and controlled way outside of the prison environment for the sake of sticking it to Earl Jones and certain other people who, perhaps, deserve a lesson. We wonder if that is constitutional.

You asked about section 1 of the Charter. In the Cunningham case, the court did not address section 1 because there was no need. They concluded that the balancing under section 7 was in favour of the law. It did not get to the section 1 study. I put to you that the kind of balancing the Supreme Court of Canada was performing, looking at the principles of fundamental justice, is the same kind of balance that it is forced to perform by section 1, which allows us to guess at what the answer might have been on section 1 if it were looking at Bill C-59 as well.

Senator Baker: Mr. Fineberg, your analysis depends upon whether or not this legislation is retroactive. Recently, the Supreme Court of Canada, in Kingstreet Investments Ltd. v. New Brunswick (Finance), approved retroactivity in tax law because it would seriously affect the economies of the province. There was a big reason for doing so.

The minister said earlier that it is not retroactive legislation; it is retrospective legislation. He repeated it over and over. Your Court of Appeal said that the difference in the two was that with retroactive legislation, the law applied after before. Retrospective legislation is when the law applies now, when you pass it, but it also has an effect on someone in jail and will have an effect in the future for an act in the past.

On that definition of "retrospective" by Senator Carignan of the Quebec Court of Appeal, perhaps this legislation will be judged to be retrospective in nature, and a whole new analysis will have to be done.

Mr. Fineberg: In Cunningham, the Supreme Court of Canada was not preoccupied with the distinction between "retroactive" and "retrospective." The Supreme Court of Canada was looking at the impact of legitimate expectation of on individuals, and retrospective legislation adversely impacts legitimate expectations requiring balancing of the principles under section 7 of the Charter. "Retroactive" or "retrospective" — leave it to the professors. The impact on the individual is something that concerned the court in Cunningham.

[Translation]

Senator Carignan: I have a lot of comments and questions.

I am going to begin with an introductory comment on the Earl Jones issue. I think we have to be clear. You can say whatever you want about our political, ideological or other motives, but it would be really crazy to alter the legal situation of 1,000 people every year for perhaps 10 years, and thus alter the legal situation of 10,000 people because of one situation: Earl Jones.

You must know that this bill, even though Earl Jones is given as an example, is not the Earl Jones bill. This bill would affect parole in a multitude of situations, including white-collar criminals. That is an important consideration.

I would also like to make a comment on the issue of the dual test. Ms. Lanctôt says the test is the same, the same investigations are conducted in both situations. According to my information, yes, the facts are collected, there is an investigation and people are consulted, but the legal assessment of the facts is based on different tests.

This morning, we heard from the Executive Director General of the Parole Board of Canada. She said that for accelerated parole review, the applicable test is the risk of violent recidivism rather than the general risk of recidivism, as is the case for the regular parole review process. That is not just anybody. She also said there were two separate tests.

The same goes for the Commissioner of the Correctional Service of Canada, who also said there were two different tests used, one for the accelerated procedure and another for the regular procedure.

Are there two tests or not?

Because in my opinion, having two tests introduces an element of inequity. In terms of the principles of fundamental justice, if section 7 is applied — and this has not been challenged, but I would challenge it if I were subject to the more stringent procedure — it is open to challenge, in my view, because it deprives me of my liberty and, in my opinion, is not in accordance with the principles of fundamental justice.

Ms. Lanctôt: As I explained, there are two parts to the consideration of accelerated parole review applications. There is the issue of violence. Clearly, if the individual does not have a potential for violence, it is true that in these situations, after a thorough review of the information, the individual may be released after serving one-sixth of the sentence and be granted full parole.

But there is also the second part of the test; the general risk of recidivism is always taken into account in determining what kind of supervision the individual will need on release. If it is felt that the general risk of recidivism is high, or depending on the individual's risk level, the conditions and supervision that correspond to that risk will be imposed. The rehabilitation measures are different for each case.

When an offender who has committed a violent offence, such as robbery with a loaded weapon, appears before the board, he will also be assessed for his potential for violence. That is because the risk of committing other violent offences is assessed. Other types of recidivism will also be examined. That will affect the rehabilitative measures, because Parliament — not I, nor the board, but Parliament — felt that offenders serving sentences for non-violent offences and who have no potential for violence can be rehabilitated more easily through community supervision. The difference is in the rehabilitative measures, which can be done more quickly in the community.

However, the main concern of the board, with its tests, is always the issue of violence, regardless of the offender, or public safety, whether the public is protected if the individual is released. Except that with accelerated parole review, there are other things that most people consider effective in dealing with individuals who are non-violent, that is, releasing them and supervising them in the community.

Senator Carignan: The second part of my question has to do with a suggestion that the bill was tabled in February 2011, so the idea comes from February 2011, and that the bill would be passed in March 2011, which would be a far too hasty procedure, politically or otherwise.

I do not see the name of the Barreau or the Association des avocats de la défense, and I would like to know whether you were invited to participate in the Correctional Service of Canada Review Panel's report, which was done by a panel of experts who tabled their report on October 31, 2007, with input from some 36 stakeholder groups in the field of corrections and inmates. The John Howard Society and the Elizabeth Fry Society were involved; 17 individuals or experts also submitted documents; and 6 wardens also took part.

Twenty-three oral presentations were made to this panel, and in its report, the expert panel recommends, in Recommendation No. 60, that the Corrections and Conditional Release Act be amended to replace statutory release and accelerated parole review with earned parole. Also among its recommendations, on page 116, it says there should only be one procedure and the same test should be used in all situations.

So my question is: are you aware of that report? Were you invited to make representations before that independent review panel?

Ms. Lanctôt: No, I was not aware, the association was not consulted. I gather, from the names of the associations you mentioned, that they are associations that may partner with or be accredited by the Correctional Service of Canada, or that work together with them.

Senator Carignan: No, not at all. There are all sorts of associations; the Canadian Criminal Justice Association, the Canadian Association of Elizabeth Fry Societies, the Association des services de réhabilitation sociale du Québec, the National Associations Active in Criminal Justice, the Office of the Correctional Investigator, the Canadian Human Rights Commission.

Ms. Lanctôt: The answer is no, we were not consulted.

Senator Carignan: My last question is for Mr. Fineberg. You talked about affecting the inmate's legitimate expectations. One principle that I learned, and that I believe to be still valid, is that the sentencing judge should not take into account the parole process. If I remember correctly, that was the Supreme Court's ruling in 2003 in Zinck.

Do you think, given that the judge is not supposed to take the parole process into account, according to the Supreme Court, that an individual who is convicted — I am not talking about a guilty plea, I have another argument for you on that — has legitimate expectations when it comes to amending the parole system?

Mr. Fineberg: I noted earlier that in the Supreme Court's judgment in Gamble, the Chief Justice, Justice Lamer, cited with approval Justice Iacobucci in another Supreme Court decision, R. v. Shropshire.

Senator Carignan: Before 2003?

Mr. Fineberg: In 1995. The citation reads as follows:

[English]

. . . parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy.

[Translation]

Senator Carignan: So how do you reconcile that with the 2003 Supreme Court decision?

Mr. Fineberg: That is not my problem.

Senator Carignan: It is for us to decide, we make the laws.

Mr. Fineberg: But the 1995 decision. . . I cannot really give you an answer — I am trying to check what year the Gamble decision —

Senator Carignan: It was before 2003. It was Justice Lamer, so before 2003.

Mr. Fineberg: If the question is "Do judges ever, in sentencing, take into account the Parole Act?," I think it happens all the time.

The Chair: I think it would be fascinating to hear from judges on that point.

[English]

Senator Runciman: Ms. Roy was commenting earlier about why this bill must be passed with urgency. I think you referenced it. This is the second version of the bill, as Senator Baker indicated earlier. It is interesting, if not more than interesting, that one of the parties in the House of Commons, the party holding the greatest number of seats in Parliament and representing the largest number of folks in your province, was strongly urging quick passage of this legislation. I think that is interesting with respect to your position.

You sort of answered Senator Carignan's question related to the independent committee, but he also raised the issue of earned parole. Do any of you have a view on the concept or principle of earned parole? Do you support it or have great difficulty with it? Do you know what I am talking about?

It is in contrast to APR, as it was described in the report, where essentially nothing is earned; APR is automatic. With the concept of earned parole, they are saying that one's behaviour while incarcerated justifies consideration for early release or day parole, whatever it might be. That concept is encouraged throughout that report.

[Translation]

Ms. Lanctôt: I do not know whether I understood your question correctly. I tried to explain earlier in my presentation that it was not automatic. But I think I did not understand the question.

[English]

Senator Runciman: We will move on.

From your perspective, how important is it that Canadians have confidence in the justice system? I think you were all present when I talked about someone getting one sixth of the sentence. It has the potential to completely undermine denunciation and deterrence, which are principles of the justice system. I think Canadians think that it is a "say one thing but do another" approach to justice. This is of great concern across the country. In importance, where would you rank the confidence of Canadians in the justice system? I do not think it is there today.

[Translation]

Ms. Roy: I would like to respond because the question interests me, senator. Everything is a matter of perception and education for the general public. When we talk about the public's trust in the administration of justice, that is a term we hear a lot, a legal term. It is easy to resort to demagogy and to say that the public no longer trusts legal institutions. This is not a survey conducted by the Journal de Montréal — I am preaching for my parish. If the public is well informed, if it is aware of the presumption of innocence, the rules of law, rehabilitation, the justice system, how it works, the role it plays in society in general, if people are informed and educated, they will understand.

If we provide conspicuous examples, if you resort to what in my opinion is — and I apologize for those who do not agree with me — demagogy, and I heard you speak about Earl Jones all afternoon, senator; if we talk about Earl Jones being released after having served one-sixth of his sentence, if we do not explain it properly and if we make a big deal about it, then that is dangerous. It is dangerous to do this type of thing with the media because they play a key role in society. The media govern us and bring about amendments to legislation; as I said earlier they have been the cause of the adoption of increasingly repressive legislation over the past several years. We cannot keep up and we are always dealing with a barrage of federal bills being adopted to amend the Criminal Code, and these amendments are never improvements.

We must be careful with public trust. We must not toy with it. We have a parole system that works well, that relies on rehabilitation, and that is the ultimate goal of a free and democratic society, a society that is healthy.

This comes back to what I said at the beginning. Why change all of this for one man? Because that is what is being done. Senator Carignan brought reports from 2007. I would like to be able to read them in order to comment on them.

[English]

Senator Runciman: I do not think it is because of one man. You talked about the success. We were given statistics here earlier today that showed that offenders released on APRs are significantly less likely to successfully complete their parole than those released on regular parole. How do you account for that when you are talking about the success of the program?

The Chair: Senator Runciman, that is, I am afraid, the very last question.

[Translation]

Ms. Lanctôt: I do not understand the question.

The Chair: The question was about statistics showing that offenders released on regular parole are less likely to reoffend as compared to those who are released on APR. How do you explain that?

Ms. Lanctôt: If I look at the figures submitted earlier, it depends on your perspective. You can see it as the glass being half full or half empty. But here, it is more than half full. When we see that out of 831, only 72 had their full parole revoked for committing a non-violent offence, that means that over 700 were successful. That is enormous. We should perhaps tell the public about this. We often tell the public about rehabilitation failures, but we never talk about the success stories. Unfortunately, we focus on the failures, whereas there are many success stories. Are there more or less? I do not know. But there are many success stories and I think it is important to point that out. Parole is a human science, not an exact science, and no law can change that.

[English]

The Chair: I will give you 30 seconds. We should be starting the second next panel at this point.

Mr. Fineberg: On the return to a system of earned remission, I wanted to point out that if this happens, if you are seized of this in the future, it will require resources. I have clients who wait three years or five years in a penitentiary for the program that they are supposed to be following. If the resources are not available — and at the moment they are not — then these people will not be able to earn their remission, and they will stay much longer in prison. That is not in the interests of the system as a whole in the end.

As for the credibility that the system enjoys in the eyes of the public, we are not indifferent to the factor. This is why we talk about retroactivity adopted in a manner that may appear frivolous when eight months ago there was no reason to adopt this law retroactively. We submit that that undermines credibility and the legitimacy of the system in the eyes of the public as well as the offenders.

The Chair: Thank you all very much.

[Translation]

We have plenty to think about. We have heard some imposing arguments and similarly impressive questions and answers.

[English]

Colleagues, while these witnesses leave and the next witnesses come forward, and for the next little while, I am afraid I must leave the chair, so Senator Wallace will take the chair.

Senator John D. Wallace (Deputy Chair) in the chair.

The Deputy Chair: Colleagues, we will continue our hearing on Bill C-59. As can be seen, I am at least temporarily replacing Senator Fraser in the chair and am pleased to do so.

We have three different organizations represented in our next panel. The first is the Canadian Association of Chiefs of Police, represented by Mr. Vincent Westwick, Chair of the Law Amendments Committee. We also have the Earl Jones Victims Organizing Committee, represented by Mr. Joey Davis, Co-Founder and Spokesperson. Finally, we have the Mount Real Victims Group, represented by Ms. Janet Watson, Spokesperson and National Victims Coordinator.

I will turn to Mr. Westwick for an opening statement or comment.

[Translation]

Vincent Westwick, General Counsel, Ottawa Police Service, and Chair, Law Reform Committee, Canadian Association of Chiefs of Police: I would like to thank Madam Chair and the members of the Senate Standing Committee on Legal and Constitutional Affairs for having invited me to appear.

[English]

Bill C-59 will increase the Canadian public's confidence in the criminal justice system and should therefore be supported.

There is a serious concern with the public's confidence in the criminal justice system. There are many aspects related to this phenomenon, and I am quick to acknowledge that police share some responsibility in this regard.

However, the calculation of sentencing is surely a matter that bedevils the average Canadian. Confusion, misinterpretation and misinformation about how sentences are calculated and how parole is determined create huge misunderstandings within the general public and more specifically create ill will and anger amongst victims and the police. This then leads to a general weakening of public confidence in how the criminal justice system is managed in Canada.

For example, when a person is sentenced to three years in a federal jail but is released on parole in six months, the public is confused, police are frustrated and victims feel let down. I cannot tell you how many times police are asked, "He was just sentenced to three years in jail, but he is already out on the street. How is that justice?"

Judges, lawyers, Crowns and police are usually completely unable to understand or calculate how long a person actually stays in jail. We do know that if a person is sentenced to three years, he or she will most likely not spend three years in jail. This is not an argument about the length of jail sentences but rather an argument about the expectation of jail time and the calculation of the time spent in jail, something which befuddles even the most experienced in the criminal justice system.

When a judge, with all the pomp and solemnity of the courtroom and the sentencing process, pronounces a sentence, there is a general expectation that the person will spend all, most or some of that time in jail. The media report the sentence. Victims may wish for more time for the offender but are reconciled to the time that has been given.

However, when the person is out on day parole at one sixth of the time, there is a sense that the system has not been open with the community. There is a sense of having been misled when Canadians come to learn that the one-sixth rule is virtually automatic, without a hearing. Canadians do not understand, and their lack of confidence in the system flows from that.

With the amendments under Bill C-59, it will now be six months before full parole eligibility. The person must apply; a hearing must be held; and the test is recidivism, not the commission of a violent crime. This is a more positive and more logical approach to parole and, in my submission, more in line with community expectations. If so, then these amendments will lead to a rejuvenation of community confidence in the criminal justice system, which is a very good thing.

I have one small footnote: It is regrettable that the specific provisions related to victims' rights as contained in Bill C- 39 — the right to disclosure and the right to attend parole hearings — were not included in Bill C-59. We note, however, the existence of Bill C-620 as another opportunity to address this important gap within the system.

The Deputy Chair: We will proceed to opening statements from our other two witnesses. Following those, we will open the floor to questions from our committee members.

Joey Davis, Co-Founder and Spokesperson, Earl Jones Victims Organizing Committee: Thank you, Mr. Chair and honourable members of the committee. I wish to thank the committee for inviting me to come before you today to make a statement on behalf of all of the victims of Earl Jones.

I wish to thank the Harper government and the Honourable Minister of Public Safety, Vic Toews, who sponsored this parole bill as part of the Conservatives' legislation in fighting white-collar crime. As victims of white-collar crime, we appreciate your hearing our voices and putting forward stricter parole conditions in Bill C-59 that address the seriousness of white-collar crimes in Canada today.

For too long, convicted white-collar criminals have committed fraud on a massive scale and have served either little or no time in jail. Witness the recent release in January of this year of Vincent Lacroix, who was convicted of defrauding 9,200 investors of $100 million in the collapse of the Norbourg Financial Group. He was released due to the current policy of accelerated parole review, or APR, which allows first-time offenders of non-violent crimes access to day parole as early as having served only one sixth of their sentence in prison.

Earl Jones, convicted of defrauding 158 victims of $50 million, was sentenced to an 11-year prison term on February 15, 2010. By the very same circumstances as those in the Vincent Lacroix case, and specifically due to the APR provision, Earl Jones will be free on day parole after having served only 22 months in jail, equal to one sixth of his 11- year sentence, which will be due in December of this year.

No longer do innocent, law-abiding citizens want convicted fraudsters to serve only a partial term in prison. At the very least, parole should be earned and not a privilege automatically granted for offenders to look forward to.

I hope the passing of this bill will send a strong message to all perpetrators of white-collar crime that Canada will no longer tolerate such behaviour. It reflects the changing attitudes of society on the seriousness of these types of financial crimes.

The concept of APR is a principle in law whose purpose no longer protects nor serves the best interests of Canadians. The victims of Earl Jones, as a citizens group, support the proposed legislation in Bill C-59. I wish to thank the committee for allowing me to speak before you today and to share our views on Bill C-59.

The Deputy Chair: Thank you.

Janet Watson, Spokesperson and National Victims Coordinator, Mount Real Victims Group: Thank you for inviting me here to speak today. I believe it is extremely important that input from the victims is heard when discussing this bill.

I represent the 1,600 investors of the Mount Real scandal, which was exposed in 2005. We lost a total of $130 million in what is alleged to be a giant Ponzi scheme. I personally lost the $68,000 that was in my RRSP. In our case, no criminal charges have been laid because the RCMP refused to investigate, claiming that it was too complicated. The only charges that were laid were penal charges brought about by Quebec's Autorité des marchés financiers. Just recently, however, one of the principles of Mount Real was arrested and criminally charged in the Norshield case, which is closely related to Mount Real.

I will share what two creditors have said about the effects this scandal had on their lives.

Here is the first statement:

I am presently 69 years of age and am still working 50 to 60 hours a week with no possible end in sight.

I have diabetes and a heart condition that have not been helped by this situation; I have many sleepless nights as I lie awake wondering if I will have enough money to sustain me to the end of my life, or if it would actually be a gift not to outlive my money. I have had to resort to therapy to help me try to avoid anxiety attacks brought on by the financial uncertainty. My wife worries constantly about me and our marriage suffers from the continuous stress.

This is the second statement:

I am an 88-year-old man who has overcome many obstacles in my life. I survived the bomb in Nagasaki. I married the love of my life who survived the crippling effects of the gas chamber during the Holocaust — twice. My wife and I raised a family while I worked many long, hard hours for our nation's carrier, Air Canada. I can no longer say that I am financially independent. I invested $125,000 on the advice of my advisor and friend. Who knew the heartache this would cause?

These statements accurately represent the lives of hundreds of the Mount Real victims. It is the reason that this law must be passed so that these white-collar fraudsters receive a penalty that actually fits their crime. To say that this is not a violent crime is an insult to the victims. Most of them will suffer for the rest of their lives while the perpetrators are allowed back into society after serving only a few months of their sentence.

During the standing committee meeting held on February 15, Mr. Fineberg stated: "If the parole board determines that the person is likely to commit a non-violent crime, the board must release anyway." This is a travesty of the Canadian judicial system. What deterrent is there to prevent these white-collar criminals from going back to doing what they know best? It is no wonder that Canada ranks fourth in the world when it comes to fraud.

It will cost more money to keep these fraudsters in jail for a longer period of time. However, the passing of Bill C-59 will serve to emphasize the fact that Canada is no longer willing to be a haven for white-collar criminals.

Please consider the victims when you are deliberating this bill. We are not seeking revenge. We simply want justice. Thank you.

The Deputy Chair: Thank you, Ms. Watson. We will now turn to our colleagues for questions. I call on Senator Smith, who is the sponsor of Bill C-59 in the Senate.

Senator L. Smith: Mr. Davis, today one of our confrères said that the legislation or the bill would be seen by some as the magic solution. To the victims you are associated with, what would it mean to have Bill C-59 passed?

Mr. Davis: It is incredibly important to us as a group and as individuals that we see at least a modicum of justice served in our case. He was sentenced to 11 years. It was not the maximum. We at least hope that Mr. Jones would serve a fraction greater than one sixth of his time in jail. Therefore, the passing of this bill is critically important to the morale and the lives of senior citizens who are trying to eke out a survival existence. We hope that this case alone will break the tide of white-collar crime in Canada and provide some hope to the victims of today and, I am sad to say, the victims of tomorrow. This is a very important indication of justice to these victims.

Senator L. Smith: I am not sure that everyone understands the profile of the people affected by this. Could you give us a profile of the people, such as the age demographic? What are these people going through now?

Ms. Watson: There are 1,600 victims of Mount Real. It is believed that the average age is 55. Many of them are well into their seventies and eighties. We have lost some of them already. Mount Real took place in 2005. That was when the scandal was exposed, so we have lost a number of people already.

Mr. Davis: In our particular case, there are approximately 158 to 200 victims. The average profile is a 75-year-old widow. Their children are no longer living in the same city as the victims. The victims have been left destitute and are trying to survive with the help of their friends and family.

The passing of this bill would at least provide a few more comfortable nights of sleep for these victims who will not be worried or terrified that Mr. Jones could be on the streets of Montreal, for example. Vincent Lacroix was released from a halfway house in Saint-Henri. We are not sure where Mr. Jones will be released upon receiving day parole, whether it is at one sixth or one third. He was sentenced less than a year ago in February of 2010. It is still very fresh in our minds. I hope that answers your question.

Senator Hervieux-Payette: Mr. Westwick, are you a policeman?

Mr. Westwick: I was a police officer with the RCMP for eight years. Then I went back to law school, and I have been working for the Ottawa Police since then. I am a little of both.

Senator Hervieux-Payette: Could you explain why the inquiry for the victims of Mount Real was not investigated by the police? There is a section in the RCMP that deals with crime of a financial nature. Why did they refuse to inquire when the number is so large and the offence took place over a number of years? Why would they not address the question?

Mr. Westwick: I wish I could provide an answer for you. However, I simply do not have details to offer. I apologize that I cannot offer any insight at all.

Senator Hervieux-Payette: Mr. Davis, if Bill C-39 had been adopted last year, you know Mr. Jones would have been covered by that. We were talking about fraud of significant importance. I think the threshold was $100,000, but personally I would not put a number on it. For instance, $50,000 could be a significant amount of money. I would trust the judge that if someone were depriving someone not educated in financial matters of $20,000, that might be a significant offence.

Would you agree with me that, first, we are not sure this bill will apply, because Mr. Jones can appeal, since it is retroactive? If it had been done last year, there would have been no retroactivity because the bill would have passed.

Second, we were given the statistic that 4 per cent were convicted of fraud of over $5,000. Most people are convicted of controlled drugs and substances as well as break and enter. Looking at the statistics, I told my colleagues that I have a lot of difficulty with a blanket law applying to everyone. Many cases are applied to women, and the majority of those women are Aboriginal. It will apply to them.

I am quite sure that even Mount Real and you do not want us to stop helping people — most of whom are below the poverty line — who are also victims of violence. We could solve the problem by addressing just fraud of significant amounts, or $100,000 and more. We could deal with them and associate them with violent crime. I agree with you: It is violent when you are depriving people of their life savings.

However, over 60 per cent of these crimes are related to drugs. Most of the time, the big bosses in the crime industry never get arrested. It is the people at the end of the line who are arrested.

I am wondering whether you would feel satisfied if we were to bring an amendment so that this would apply only to fraud of a significant amount of money, if we removed the one-sixth provision for this group and associated them to violent crime. I feel it is not the intention of the victims to impact on other victims in our society. I am addressing the question to both of you in terms of the scope of the law.

I am very sorry that the Canadian Association of Chiefs of Police is not informing its members that people in a halfway house are not free — they cannot go wherever they want, and there are conditions associated with it. They will not be going to their cottage on the weekend. They stay there; they are still punished, and they are serving a sentence.

We should not oversimplify this question. I hope the Canadian Association of Chiefs of Police would be more serious about addressing this and providing the right information to its members.

Mr. Davis: Thank you for raising that, senator. It is a very good point. I cannot speak for other victims or victims groups, but only ones of white-collar crime. Today, under current laws, white-collar crime is looped together with other crimes, non-violent, first-time offences. Perhaps in the future, more progressive laws can address specifics of white-collar crime, and I would welcome that.

Today we have a movement showing the rights of victims stepping forward. For far too long, we have seen the rights of offenders protected over the rights of victims. This has created a climate where white-collar crime has fostered over the past 15 to 20 years. We are talking about Bre-X and massive frauds in Alberta and so on. This has produced a climate of fraudsters who feel that this is a cost of doing their business.

The introduction of this APR elimination is a beginning step that I feel is necessary to stem the tide of white-collar crime. Will it apply to Mr. Jones? We will see what happens. Again, he has the right to raise an objection under constitutional law. Whether it is retrospective or retroactive is something that can be argued up to the Supreme Court.

Nevertheless, steps must be made today to protect future generations. I feel eliminating the one-sixth APR is a move in the right direction. It is a concept in law that no longer serves a purpose. It might have served its purpose in previous generations when white-collar crime was not so large. However, we have witnessed massive, mega-frauds over the past five to ten years that have affected individual citizens. Therefore, I hope this bill will start a new change.

Senator Hervieux-Payette: Would you oppose our applying just to white-collar crimes of importance? A $5,000 fraud might be committed, but it does not necessarily ruin people's lives.

We would support the bill; we proposed it. There are no arguments over this white-collar crime. Where I have reservations with the bill, and where I would like to propose an amendment, is that it apply to white-collar crime. That way, both sides would be happy. We have reservations with the retroactivity. As you understand, we are all lawyers. A country that goes with that kind of legislation is a country moving in a dangerous direction.

The Deputy Chair: With the greatest of respect, you have asked your question, Senator Hervieux-Payette. I am wondering whether the other two witnesses would care to comment on it.

Senator Hervieux-Payette: Would you comment on my proposal to have white-collar crime and to exclude all the other crimes where people would suffer?

Ms. Watson: I understand your point, and I would agree with it, to a degree. I believe the same amendment to this bill was proposed in the standing committee and was disallowed.

I realize that a great many women will be affected by this APR. I think the problem of women in the prison system could be addressed more effectively by having social programs that would prevent them from being incarcerated in the first place, especially with regard to Aboriginal women. I have great sympathy for them.

However, I support the bill the way it stands. On behalf of the victims of Mount Real, and I agree with Mr. Davis, we have to start taking the victims' points of view very seriously regarding this crime if we want to stem the tide of what is happening in Canada today.

There was a study by Mr. Rosen, I believe, who said that at any given time in Canada there are 100 Ponzi schemes in existence; they just have not been uncovered yet. Something significant must be done to change that situation.

Mr. Westwick: I have a couple of comments. I have a concern about the process carried on in the Correctional Service of Canada. The accelerated parole review is, in essence, an administrative process.

As I understand it, your point is that the removing of this will catch some people, women in particular. You have to remember that the sentencing process that starts this whole sequence is a very in-depth process. It is in a courtroom; it is public; the people there are represented by counsel, and they have the opportunity to call evidence about their situation and about the circumstances that may have led to the offence, and so on. The judge assesses all of that and makes a decision on it.

I have some concern about that decision then being adjusted later on downstream in the process. I wanted to be careful of the word I used. I respect your point about how this may affect certain Canadians, but I think we have to put confidence in the sentencing process.

The other problem I have is the terms "violent" and "non-violent." I understand what the words mean, but a break and enter, in my mind, is a serious crime. It has a huge impact on people, and to have it described merely as a non- violent crime to me would leave a number of victims of break and enters, including our family, perhaps questioning that.

I take your point, but I do think there are other dynamics to the system that must be considered.

Senator Lang: I would like to make a couple of observations, if I could, with my good friend Senator Hervieux- Payette. Obviously, there is an aisle between us and there is a reason for it. Frankly, I do not agree at all with the logic you have put forward here. A 10- or 11-year sentence for white-collar crime, a 10- or 11-year sentence for someone dealing drugs — 10 or 11 years is 10 or 11 years.

Mr. Westwick put it clearly that there is a lack of public confidence out there. When you hear there is a 10- or 11- year sentence, and then in 20 months the sentenced individual who lived next door to you comes back, you wonder what happened to the justice system.

The other point I want to make is about drugs, which are a concern to me. I look at the young people whose lives are being destroyed, and we sit around this table and do very little to see how we can prevent it. I see drugs freely going around on the street, and we refer to that as a non-violent crime, but I cannot think of anything more violent than what we are doing to these young people.

I want to make this point about the recommendation my good friend Senator Hervieux-Payette was putting forward for her goodwill amendment. I am wondering whether the witnesses realize that if this bill is amended, it will have to go back to the House of Commons and come back to the Senate. We would then be talking about another year or two years before the Senate would deal with it. Are the witnesses aware of that?

Ms. Watson: Yes.

Senator Hervieux-Payette: No, it could be two weeks, not two years.

Senator Lang: Two weeks?

Senator Hervieux-Payette: Of course.

Senator Lang: I have never seen anything happen in two years, let alone two weeks.

The Deputy Chair: Let us stick to the witnesses. If you have a question to put to them, I would be interested to hear it.

Senator Lang: Mr. Westwick, you talked about the change in the APR and said it is necessary to regain public confidence in the judicial system. Are you prepared as a taxpayer to pay more money in view of the fact that if we do this, there will be a cost attached to it?

Mr. Westwick: Do you mean personally?

Senator Lang: Yes.

Mr. Westwick: Yes.

Senator Lang: Thank you.

Senator Baker: I would like to congratulate the witnesses for their presentations. These are terrible situations of violations of the Criminal Code, and we can just imagine what people have to go through. I congratulate you on appearing before this committee and encouraging the House of Commons and the Senate to pass the bill.

Senator Smith, this could be the last week of Parliament, as you have pointed out. Some people, like Senator Smith, would like to have this passed immediately, and we are spending 10 hours here today in hearings, and it is necessary to spend all of this time to examine the legislation and to hear from you.

Mr. Westwick, you have done a marvellous job in representing the police association, with your interventions in court cases and so on. You have done a tremendous job on behalf of the police association.

Ms. Watson, I am interested in what you said about your organization and the fact that the offender in that case had defrauded so many people, yet you could not obtain the prosecution through the RCMP. Did you say the securities commission had already prosecuted the person?

Ms. Watson: They will be prosecuting him. The Autorité de marchés financiers in Quebec will be prosecuting. The charges have been laid. They are due to go to trial in November, I believe. It will be six years from the time the offence was uncovered. These are securities charges. They carry a sentence of five years less a day. There are a great number of charges against each of the individuals, the principals of Mount Real, but the sentences will be served concurrently, five years less a day.

However, as I said in my presentation, just recently, as a result of an eight-year investigation into Norshield and Cinar, one of the principals of Mount Real has been criminally charged. Therefore, this bill is now of great interest to me because he will now face criminal charges, and it will be his first offence. Obviously, I do not want to see this man released after serving one sixth of his sentence.

Senator Baker: That the principals are being charged under the Securities Act, of course, does not foreclose prosecution under the Criminal Code. They are the very same offences. Under the Criminal Code, there are the forfeiture provisions that allow the court to give restitution, to a certain degree, on what is forfeited, whether it is cash in the bank accounts or properties.

Ms. Watson: There is nothing left.

Senator Baker: There is nothing left. Let me ask the witnesses this question. A couple of provinces in Canada — Alberta for sure and probably Ontario — have a victims restitution office that will go after a fraudster. The fraudster does not have to be charged. It is on a balance of probabilities. They seize property and so on, and they give that property to the victims. It is legislated provincially. Have you heard about that?

Ms. Watson: I do not know what they do in Alberta or Ontario, but in Quebec there is a victims indemnity fund — a victims compensation fund — run by the AMF, the Autorité des marchés financiers, which is the Quebec securities commission. The 1,600 of us applied for restitution from that fund, and we were all refused. It covers only mutual funds and insurance products. It would also not cover people like Mr. Jones' victims because it only covers people who dealt with a securities adviser or financial adviser who was registered with the AMF. Mr. Jones was not. It is very limited as to whom it covers.

In our case, the investments we had were promissory notes. When we were asked about the demographics of the age group, I said the average age was 55. That is because you had to have a minimum of $50,000 to invest in this company, and not very many 20-year-olds had that kind of money to invest. Individuals lost huge amounts of money, and we were all refused from the indemnity fund from the AMF. I believe the AMF is the only securities regulator in Canada that has such an indemnity fund, but it did not do us any good.

Senator Baker: I imagine that after this bill is disposed of, you may be interested in suggesting that the federal government pursue some sort of legislation nationally.

Ms. Watson: Absolutely.

Senator Baker: I imagine that is one of the key considerations for you.

Ms. Watson: Restitution is a huge issue, and that is another topic on which we will be trying to lobby the government.

Senator Baker: Money just does not disappear. It goes somewhere.

Ms. Watson: We have not been able to find it.

Senator Runciman: I want to thank the witnesses as well, especially to have representatives of the victims put on the record some of the impacts these actions have had on families and individuals. It is much appreciated.

Ms. Watson, I think you described the current system as a travesty. That is dead accurate, because harm done to victims is irrelevant to whether the offender is granted early release. It is not part of the consideration at all.

Mr. Westwick, you talked about confidence in the sentencing process. I appreciate that because I raised with earlier witnesses the importance of Canadians having confidence in their justice system. They implied that it is an education problem, that the system is working well for Canadians. I just wondered whether you had an observation in that respect.

Mr. Westwick: The confidence in the criminal justice system is a problem that challenges all the participants in the criminal justice system. It is not just the police. I sit on a number of other committees that involve other participants in the criminal justice system, and they too are challenged by it. I do not think it is one particular issue, but sentencing and how it is calculated and how it is applied seems to be an element that members of the public keep coming back to and asking the police, "How did this happen? How could this happen?"

I stress again that my submission is not for longer sentences; it is for more clarity in the sentencing process such that people, the media, the public will understand what all this means and can choose a point of view. Crisis may be too strong a word, but there is a serious concern about confidence.

Senator Runciman: When someone walks after one sixth of the sentence, would you share the view that that must undermine the principles of denunciation and deterrence?

Mr. Westwick: I believe so. I believe as well that it goes to the fact that the person is walking, as you put it, after one sixth of his or her sentence without a parole hearing and going through the formal process. I think most Canadians would expect, as they understand it with whatever level of knowledge they have, that there is some process in play that would follow the complex process of the sentencing process in court, in public and so on.

Senator Runciman: I do not know whether you can answer this one quick question about the statistics we were provided earlier today wherein offenders released under APR are less likely to complete their parole than those released on regular parole. Do you have any insight into why that is occurring? I do not know whether that speaks to the fact they are not valuing something they have not earned.

Mr. Westwick: The concept of earning it and of participating in rehabilitation programs, which are not a necessary part of APR, might have some impact on how the person conducts himself when he returns to society, whether it is on day parole or some version of it. I cannot explain that. I have no explanation for it. There is nothing I can add, I am afraid.

Senator Joyal: I am addressing this in particular to Mr. Davis: You have been a victim of a fraudster, and I do not want to see you being a victim of the justice system when this bill is challenged in court. I think you will be deceived under oath if in one or two years there is a decision that strikes this bill down, in particular with respect to the retroactivity. I think you would be twice a victim. I am concerned about that. I raised this issue with the minister this morning, and I raised it with lawyers representing the Canadian Bar Association, the Barreau du Québec and other specialized experts in relation to the constitutionality of this bill. I want to stress that to you.

That is why I am as concerned, if not more concerned, that in your briefs you did not stress the need for a system of compensation or restitution that would address the key level of victimization, which is people's wallets, their life savings, as well as their freedom. Having lost their money, they have lost part of their freedom, the freedom to retire and to live the life they want. Have you made any formal representation for improvement to the restitution system that would address that specific aspect of victims of fraud? I think this is the first thing we should be looking at and at the same time ensuring those people serve real time in prison.

Mr. Davis: Thank you for raising that very important point. As we all know, white-collar crime is a multi-faceted issue, and the fallout of that affects many different laws and ministries. We feel that yes, of course, restitution provided to victims on behalf of the offender or on behalf of the state is a critical issue, but we do not see it fitting into parole. This is an issue of public safety. We came here today to defend one component of a multi-faceted solution to white- collar crime, that being supporting stronger parole conditions. We will be advocating in future pieces of legislation for stronger and even new provisions for restitution. Perhaps it will fall to Justice Canada or Finance Canada to bring those laws forward. We are working closely with all the ministries right now.

Unfortunately, there is no one silver bullet or piece of legislation that will eliminate white-collar crime, but we do take that matter under serious consideration and hope to address it in the near future.

Senator Joyal: You have not come to any general conclusions regarding what you will be advocating?

Mr. Davis: We are still new to the victim business. We see this as a multi-pronged approach. One idea we would like to propose is a national summit of victims of white-collar crime, which we would invite officials and governments to attend. We can bring the best ideas to the table for a Canadian discussion on white-collar crime. Good ideas can be brought forward and hopefully presented to the government for legislation. We will be working on this in the next six to eight months. From that we would hope to propose fully fleshed out, properly developed ideas.

This proposed legislation is somewhat limited in scope. I understand the importance of it, that part of the solution is to have a stricter deterrence factor with parole. I am convinced that Mr. Jones, after perpetrating a crime for 27 years, considered the fact that after one sixth of his sentence he would be out, and as a result it allowed him to continue his crime. That is an important issue to be addressed.

Senator Joyal: Do you have the same preoccupation, Ms. Watson, as Mr. Davis?

Ms. Watson: Absolutely. Mr. Davis and I have been working together since the Earl Jones scandal was first brought to light. We have been working together to advocate on behalf of victims' rights. Compensation and restitution will be one of the issues. With regard to restitution, I will be working with him on the upcoming summit. Many other victim groups across Canada will join with us in the summit. We are hoping to come up with some concrete ideas that we can present to the government on how to change things.

We worked very hard on the previous bill, the two-year minimum sentencing bill. Now we are working and concentrating on this bill, hoping it will pass as quickly as possible. It will act as a deterrent to this type of criminal. There is no deterrence right now. That is why we have such a huge problem in Canada. We have a bad reputation in the world when it comes to finance and fraud. Every week, "W5" and "The Fifth Estate" do another program about fraud and white-collar criminals in Canada. It is a huge problem in every province and must be addressed in all of its various phases.

Senator Joyal: Thank you for your comments. I will draw your attention to the inherent risk there is with this bill as drafted. Ms. Watson, I refer you to the testimony we have heard in relation to the previous bill you have just mentioned about the two-year minimum. The minister commented last week when he appeared at the House of Commons committee that is studying the fiscal impacts of those bills. You will find interesting information there.

Ms. Watson: Thank you.

The Deputy Chair: Thank you, senator. We have one additional question from Senator Smith.

Senator L. Smith: I thank the witnesses for demonstrating tremendous courage and passion for your cause. The government is working hard to try to complete some legislation. It can happen only with the teamwork of everyone involved, both sides of the house.

You should be proud of the courage you have demonstrated because it is not easy. Having met 29 of the Earl Jones victims, I tell the members of the Senate that, until you meet these folks and actually experience what they have gone through, it is difficult to understand and have empathy for people. However, your testimony was helpful.

When given the chance to speak to any of these people, I encourage all members from both sides of the house to look them straight in the eye and ask them how it has impacted their lives. It is an important issue that needs to be solved. I thank you for your time.

Senator Hervieux-Payette: At the same time, I encourage you to ask, in the coming years, that more resources be put forth to deal with financial crime. We have a small unit in the RCMP. If we were increasing the number of people who are knowledgeable, we would be able to do the inquiry and could foresee the sign in the system that this would happen. I prefer that we address the question before as opposed to after. If you lobby, you should start there. We need more resources there than in prison.

The Deputy Chair: Thank you, senator. That concludes this session. Thank you to each of the panellists. We appreciate the evidence that you have given us today. We will take it under serious consideration. I know we extended beyond the time that you were expected to be here. Your cooperation is much appreciated.

We will continue our consideration of Bill C-59 with our next panel. We have an extensive panel now representing four different organizations. I see some familiar faces among this panel.

Beginning with the John Howard Society of Canada, we have Ed McIsaac, Interim Director of Policy. We have L'Association des services de réhabilitation sociale du Québec, ASRSQ, represented by David Henry, Communications and Programs Coordinator. We have the Canadian Association of Elizabeth Fry Societies, CAEFS, represented by Kim Pate, Executive Director. Finally, we have the Church Council on Justice and Corrections, CCJC, represented by Laurent Champagne, President; and Lorraine Berzins, Community Chair of Justice.

We will consider any opening comments and presentations that any of the panellists would care to make. We will start with Mr. McIsaac from the John Howard Society.

Ed McIsaac, Interim Director of Policy, John Howard Society of Canada: I want to thank the committee on behalf of the John Howard Society of Canada for the invitation to appear and discuss Bill C-59.

As most of you know, the John Howard Society of Canada is a non-profit organization whose mission is to promote effective, just, humane responses to the causes and consequences of crime. The society has 65 frontline offices across the country that deliver programs and services to support the safe reintegration of offenders into our respective communities.

The John Howard Society of Canada does not support the abolition of accelerated parole review for all. It is very difficult to hear the stories of the victims of major fraud. If that is the focus of the legislation, the current net is far too wide.

I have left a copy of our position paper called "Presumptive Gradual Release" with the clerk of your committee, which I hope will be of assistance to you in your review of the legislative proposals before you.

The protection of society is best served through the timely and supervised reintegration of offenders back into our communities, not through the extension of periods of incarceration. The provisions of APR were introduced, as you have heard many times today, to assist in the timely conditional release of first-time, non-violent federal offenders. The available data indicates that approximately 900 offenders a year benefit from this timely supervised release and that well over 80 per cent successfully complete their period of supervision in the communities.

With respect to public safety, it appears counterproductive to be contemplating the abolition of conditional release provisions that have assisted in the timely release of so many offenders. As well it appears counterproductive to a penitentiary system that is overcrowded, as you heard earlier today, to be taking a decision that will significantly increase the prison population and further limit access to correctional programs.

I urge the committee, through your deliberations, to give consideration to the impact of abolishing accelerated parole review both on first-time, non-violent offenders and on the correctional system as a whole.

I thank you for your attention and look forward to your questions.

[Translation]

David Henry, Communications and Programs Coordinator, Association des services de réhabilitation sociale du Qyébec: Madam Chair, first, allow me to point out that the Association des services de réhabilitation sociale du Québec (SRSQ) is a group of some 60 community organizations working with clients subject to judicial control. About half of the member organizations of the association are halfway houses. The others offer services in the area of drugs addiction, mental health, employability, and so forth, always working with persons subject to judicial control.

Each year, the association's member organizations provide services to over 35,000 people in Quebec. Our association is not a union for halfway houses. It is not an advocacy group for prisoners' rights or for victims' rights.

We seek to keep a critical and objective eye on the criminal justice system while being firmly convinced that social rehabilitation remains the most effective way of protecting communities in the long term.

It is the automatic nature of the accelerated parole review process that is a problem and that has helped undermine the credibility of the correctional and judicial systems.

The concept behind this process was to avoid overly lengthy incarceration periods for people who were serving first- time sentences in a penitentiary and who had committed non-violent crimes. This was a very commendable objective in that it sought to keep these people from being further criminalized.

Unfortunately, what happened in fact is that some offenders who had committed very serious crimes, such as major fraud or large-scale drug trafficking, took advantage of the automatic nature of this measure. That was certainly not the intent of the legislator.

Trying to remedy this situation should not challenge the idea of release after one-sixth of the sentence. It should be done within the normal context of the granting of parole. Thus, this release after one-sixth of the sentence would be approved and supervised by the National Parole Board.

Currently, the vast majority of people who receive accelerated parole review — and they are mostly women, do not have reoffend rates that justify the total elimination of parole after one-sixth of the sentence. In fact, if this measure were eliminated entirely, thousands of people would be in prison for a longer period, with the attendant social and economic costs.

We must keep in mind that, according to Public Safety Canada, in 2008-09, the incarceration of a male offender cost taxpayers over $106,000 per year, whereas the incarceration of a female offender cost just over $203,000 per year.

Furthermore, monitoring an offender in the community cost only $29,476 per year, so that is three to six times less. It is probable that most offenders who currently are entitled to this automatic measure would be entitled to it in any case if the process was under the control of the National Parole Board, given that these people do not represent a high risk for the safety of their communities.

The ASRSQ recommends that the automatic nature of the accelerated parole review process be abolished, but that the possibility of being released after serving one-sixth of the sentence be maintained, under the supervision of the National Parole Board.

[English]

Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for inviting us to attend. I am with the Canadian Association of Elizabeth Fry Societies, an organization that has 26 members working across the country with women who are marginalized, victimized, criminalized and institutionalized, particularly in federal penitentiaries.

It is in that capacity that I offer my comments, and I offer them on behalf of my board of directors as well. Unfortunately, for a while now, they have not been able to clear their schedules because of some of this legislation. I was advised to advise that the workload of all these bills coming through is increasing the workload of our members, as well as our board members, many of whom are working in this area and volunteering with our organization.

I want to be clear that, as we stated before the house committee, we do not support this bill. We do support issues to protect the rights of victims and to protect victims generally. We feel that if that was the objective, many more initiatives could be undertaken rather than, after the fact, undertaking a bill of this sort.

As we, my colleague and, I believe, the previous panel have indicated, women are disproportionately impacted by a number of the bills, including this one. We know the reintegration potential, the success of women upon release is greater. We know that some of you have introduced measures in other contexts to recognize the importance of having other interventions for women that would take into account their specific needs.

We know that when it comes to fraud, both in terms of victimization and some of the issues being raised before this committee and the house committee with respect to this bill, it is disproportionately those who are poorest who have invested their resources — poor as a relative term, obviously, to other types of fraud. Disproportionately, women are also impacted in those areas.

We strongly urge that instead of supporting a bill such as this, you look at the resources that are required to implement a bill of this sort. We would suggest that the gradual release is a far more cost-effective process and that with the resources saved by not passing this bill, you could probably compensate all the victims who have appeared before this committee whose initiatives and whose victimization ostensibly you are trying to address. They will not achieve that compensation by this bill. As we know, most victims want some meaningful intervention for what has happened to them, and to be offered, after the fact, longer sentences and more brutalizing regimes will not be effective.

A question to the panel earlier was why the statistics were that more people are breaching parole when released on APR; certainly it is not true for women. I suggest that you need to look at some of the other legislation that has been passed and the increase in overcrowding that is occurring in prisons, more limited access to services both in the prisons and in the community and limited access to halfway houses. If you further encroach on and increase the numbers of people in prison, you will increase many of the very real pressures that already exist in the prison system.

We encourage you to not pass this bill, to take a considered approach and to look fundamentally at your responsibilities as representatives of the Canadian people. Be again the house of sober second thought and look at how most effectively you can assist those who are victimized and how most effectively you can remedy a situation that there is no doubt is wrong when someone has been defrauded. Certainly, more time in prison, creating a wider, deeper, stickier net of control and not allowing more people to be released at the earliest opportunity when they do not pose a risk to public are significant issues.

On that note, one of the issues being raised is whether this would increase the risk to public safety; it is very clear that is not true. It is also true that there are mechanisms for ensuring that those offenders who continue to pose a risk could be retained in custody should that be the objective.

I look forward to your questions and hope that we can have some productive movement forward. Thank you.

The Deputy Chair: Thank you, Ms. Pate. Finally, from the Church Council on Justice and Corrections, Mr. Champagne, please provide us with your comments.

[Translation]

Laurent Champagne, President, Church Council on Justice and Corrections: Honourable senators, thank you for welcoming us, thank you for listening to us and thank you for deliberating with us on this delicate issue.

Thanks to my work as community chaplain in halfway houses, I am faced with the reality of social reintegration on a daily basis. I also meet many victims because they request help, follow-up, or a listening ear. And often, they do not know where to turn. So they call us at the Montreal Community Chaplaincy.

It is difficult to understand why Parliament is passing legislation that cracks down on exceptional examples, instead of taken into account the common good and inmates as a whole.

The same applies when certain groups make demands based on extreme cases. I heard the victims of Earl Jones, but every day I hear from numerous victims who are not represented by groups; victims who sometimes are not as important in the eyes of the government and lawmakers. The Church Council on Justice and Corrections seeks to strike a fair balance. We were born of a desire to constantly shed light on justice, based on our faith. Over the past four years, we have organized an annual forum to identify the needs of victims. We have established links between their need for satisfaction and the social reintegration of ex-convicts, which is reparation.

When both parties want to work together, the results are positive, instead of seeing incarceration as vengeance.

We thus want to work on social reintegration. We are a long way from the law of retaliation, that is, an eye for an eye, a tooth for a tooth, like in the Old Testament. We are now in the New Testament. Community-based social reintegration programs are often more effective and less costly and also give satisfaction to victims.

The family of inmates are also victims and the impact on them is devastating. They do not choose to be associated with an offender. According to this bill, staying in prison longer means inmates develop a thicker skin, day by day.

Being released from prison, as was said earlier, does not mean being completely free. There is continued monitoring and reintegration work in order to build a safer society. We wrote to the Prime Minister in December of last year, to tell him how astonished we were that so much money was being invested in prisons instead of investing this money in social reintegration.

I will now turn the floor to Ms. Berzins, who will close.

[English]

Lorraine Berzins, Community Chair of Justice, Church Council on Justice and Corrections: I will make a couple of additional points. First, I would like to clarify that the Church Council on Justice and Corrections is not an offender- focused group, although many of you may think we are. We advocate on behalf of a justice approach that better meets the needs of the community as a whole. Our communities include victims and offenders, their surrounding family and friends, and all citizens harmed by crime, by the fear of crime, and by the impacts on people's lives of how we respond to crime and how the criminal justice system operates.

That is the context we are coming from. We are trying to consider what is good for the whole community in this.

We gave testimony in front of the house committee on this bill and explained why we oppose it. I will not repeat it because you have it and can read it. Instead I would like to take a step back and look at the big picture in regard to two of the issues that are driving this bill.

First, we know that it is in part the outrage we all feel about what the victims of some large-scale fraud have been through. Unfortunately, we know from experience with many victims that the extra time in prison that the offenders in question will get as a result of this bill will not meet the many needs we know the victims have. Victims need much more much earlier, and money is not going into that. We think the proposals to strengthen restitution that were mentioned would be far more beneficial and are positive things that could be achieved without doing something that will negatively affect so many others.

The extra cost impacts are taking away even more money from services to victims that, along with safety and prevention, should be the foremost focus of our community and criminal justice system. Victims' services are so poor that victims feel as though the only way they have of measuring that what happened to them matters is the prison sentence. That is wrong. Are we content to just make believe, or do we want to make a difference? We can do better than that.

Second, the other factor driving this bill is the understandable shock of some people that a judge's sentencing decision appears to be totally trampled on by the current procedures for day parole review.

However, we have to take a good look at the starting point here. All the statistics, evidence and international comparisons tell us that Canada already imprisons far too many people who do not need to be imprisoned and that programs in the community for them would offer better results in reducing further crime, which many victims want and which is a primary community priority. Our prisons are overcrowded already, and this bill will make that worse. I am sure that you have heard it many times now, but we have the example of the U.S., which has seen the devastating social and economic costs of policies that have not recognized that.

We have this cultural mindset that prison is the only way of showing that we take the harm of crime seriously. Judges are also affected by that mindset. This mindset has driven the whole notion of the tariff — they even call it that — needed for denunciation of a crime way beyond what is really effective in many cases. We know that more time in prison increases the likelihood of reoffending on release, whereas programs in the community and early release to the community decrease it. People on day parole and halfway houses have a very low rate of reoffending, especially violent reoffending.

My point is that the starting point of the sentencing judges is often artificially high and unnecessarily expensive. We have to see the big picture. One third of too much may still be too much, and even one sixth of too much may still be too much in terms of cost-effectiveness of how we spend our tax dollars.

Again, I ask you to ponder: Do we make believe, or do we make a difference?

These choices deserve more wisdom for where we want to go as a country — we would like to think that we would get that from members of the Senate — where we want to go with values for our society and also how we choose to spend people's tax dollars.

I want the leave you with one example. In Missouri, they are now giving judges information about the cost of the various sentences that they are contemplating when safety in the community is not at stake and other options are available that would be cheaper and more effective. They are doing this because they have learned the hard way that the harm done by prisons should be pondered more seriously and that alternatives to more time in prison should also be considered more seriously.

With all due respect this bill does not help Canadians think wisely about that and will do much harm, while only pretending to do some good. More Canadians are wising up to that and will be expecting more from their government.

The Deputy Chair: I thank each of you for very thoughtful comments. We will go to questions.

Senator L. Smith: Thank you for your comments.

[Translation]

Thank you for your comments. We have heard a great deal of testimony to date.

[English]

We have had many witnesses and a lot of information. I would like to give you a few of the points that we have heard today and maybe ask a question of the group.

Eighty per cent of offenders do not apply for rehabilitation when they are incarcerated. Fifty-five per cent of offenders are prosecuted on drug offences. We heard from two people in related areas that, first, 13 per cent of offenders who have mental problems are male; and then from a closely related individual, we heard that 30 per cent of offenders who have mental problems are male. Therefore, we went from 13 per cent to 30 per cent.

We also heard from the same two witnesses that, first, 26 per cent of women have mental issues and then, from the other witness, that 50 per cent of women have mental issues. We also heard that it is very difficult for inmates in the existing system to get into rehabilitation programs. Then we talked at length about the difference between violent and non-violent crime.

In listening to today's feedback and knowing that the Senate is a house of sober second thought, the thought that comes to my mind is that it is one thing to say that the bill is good or bad, these are the reasons for it, and we recognize your position; but I would encourage your group with other groups to ask what big picture we could come up with that would address the mental illness problems in our country. What picture could we come up with that would improve the rehab situation within prisons?

There is an issue here that needs to be addressed in terms of violent and non-violent crime, or white-collar crimes committed under this bill. However, I think there is another issue that you could be addressing as groups, which is to create the big picture that you can put forward.

It is easy to be critical of situations. I think everyone has positive intent. However, what plan for the big picture can you come up within your own minds to solve some of the overall issues that are included in some of the feedback that we have had today, which is supplementary to the issue that we are facing?

Our issue is very specific. I think the issues you are talking about are all-encompassing. I would love to hear your comments on it.

I hope you think that is a logical question because we have been bombarded with information.

Ms. Pate: It is a very logical question. I am not sure who gave you those differing statistics, but we hear that range as well. In some ways, we have abandoned some of the national standards that we have had since the elimination of the Canada systems plan particularly in the area of social, educational and mental health services that directly impact these issues.

In the area we work, particularly with women and girls, we see that most profoundly. Because of their substantive inequality, such things as unequal wages, their position of poverty, having to start with histories of victimization, sexual abuse, physical abuse and their relative poverty and marginalization means that they tend to be more reliant on those services. Therefore, the abandonment and evisceration of those services means that they are literally abandoned to the only systems that cannot say no. Prisons cannot say, "Sorry, our beds are full. Sorry, we have a waiting list. Sorry, you do not fit our mandate."

Those are the most significant series of contributing factors for why women are the fastest growing prison population. If it was different, I am sure we would all be aware of it. Really, are we at greatest risk from hordes of women out there creating a public safety risk? We know that is not true. We know they have the greatest potential for reintegration, and we know they do seek services as much as possible. However, as the numbers increase, fewer of those services are available or accessible.

Senator Runciman has been working on initiatives in this province to look at alternatives for those who have mental health issues, particularly women. We applaud those kinds of initiatives because we must ensure that we do not put people with significant mental health issues in prison anymore. I applaud the efforts of the Correctional Service of Canada to develop services after the fact when services have been cut out of the community. The mental health services in our federal women's prisons are some of the finest in the world. However, most of the women who need them do not get access to them. Ashley Smith is a perfect example. They end up locked in segregation because that is the easiest way to monitor them, not because people are mean-spirited or ill-intentioned.

We do not require the same approach if someone has a health condition such as a heart condition. No one thinks the prison system can set up cardiac wards. However, mental health, as Senator Kirby rightly identified through his commission, is the poor cousin of health care, so we continue to think that we can just add and stir mental health services into the prison system. We need to take firm positions on a number of those areas. Our prisons should not be poor houses any longer. There were clear decisions taken historically to change that. Our prisons should not be the shelters where battered women are placed. I teach a course at the law school on defending battered women on trial to educate new Crowns and defence counsel. Prisons should not be our homelessness strategy, and they certainly should not be an attempt to develop new treatment centres because they are not treatment centres and not places of healing. The experiments of therapeutic communities in the 1970s and 1980s taught us that.

Therefore, thank you for your question because there are many other initiatives that can be done. All of the new bills creating longer sentences and more mandatory minimum sentences are making this problem worse and will disproportionately impact women, indigenous women and all women who are victimized.

Senator L. Smith: The point is that there must be a combined effort of people in the public through associations such as yours to create some form of a strategic plan. Perhaps you already have it.

Ms. Pate: We are trying.

Senator L. Smith: At the same time, you must solicit people in government who will take the initiative so that you can get to those decision makers.

The issue we are dealing with is very specific. There is some differentiation. It can be easily lumped on by all of the social problems. We have a lot of discussion on Aboriginal women. However, with some of the Aboriginal population, there are direct societal issues in how the tribes operate, the chiefs and how the villages are structured. There are issues that should be solved a long time before little children become adults and fall into the penal system.

I want to ensure that we keep a focus when we are looking at a direct, narrower area of responsibility that is important to the population and trying to solve it. There is a point here where there is an opportunity for you folks to play a role with people in decision-making positions. It is easy to say what is right and what is wrong. However, you have to come up and ensure that you create that movement.

Ms. Pate: That is right. With the greatest respect, this house does not require election to come back in. Therefore, the sober second thought is vitally important. I get more calls from people in government now than I ever would have imagined when I started 27 years ago. Many people expect an office of one and a half women to take on an issue that employs 30,000 staff, and then you take on much broader social issues. It is phenomenal to me that we are in that stage.

As each one of these bills passes and costs the taxpayer more money, it drains the economy. That is why, in 2008, the State of California was ordered to release 44,000 prisoners with mental health issues because the state was going bankrupt. The United States, as Ms. Berzins pointed out, has started to retreat from this position. We are going headlong into this train knowing that we will continue to suck the resources out of all these other areas.

Senator L. Smith: Whose jurisdiction is mental health? We can all argue between federal and provincial jurisdiction. However, perhaps we should come up with a plan that addresses some of these specific issues. We are trying to address the specific issue that we are faced with in the best way that we can.

The Deputy Chair: Sorry to interrupt you, Ms. Pate, but the question was directed to the entire panel. We have another complete panel after this, and we are running over our time. We welcome the input of any of the other panellists. However, I ask you to keep your comments as tight as possible in view of our time constraints.

Mr. McIsaac: I will be as brief as possible. The non-government organization sector, specifically those that work with mental health and the criminal justice area, has been involved with government agencies over the last decade to attempt to address issues related to the gap between mental health and corrections in this country.

Part of the difficulty at the current time is the availability and access in a reasonable and timely fashion to programming within the federal institutions. It was a huge problem, and it is getting worse as more legislation goes through. As this bill goes through, it will impact on the number of offenders in the institutions. The dollars we spend inside are dollars that are not being spent in the community. As you rightly said, the focus would be best within the community to ensure that the young people of today are not the offenders of tomorrow.

Ms. Berzins: A lot of information is now accumulated about what does not work and what does work. Many countries are seeing a smart-justice movement. We have data that shows that treatment and intervention in the community is far more effective. However, it is not easily funded. We know of many models that would work much better and more cheaply. However, they are not funded. All the money is going into the overhead of the prison system. We have this mindset that prison is the way to show that we care about what happened. Many of us know that that does not make sense. However, no one is challenging it. We are not telling the truth about that. It takes a lot of political courage to say that this is not the route to go. It takes either political courage or desperation because we are going bankrupt. We need more of that. It is a real problem.

I know you said that here you are addressing a very specific issue. However, you are feeding the same mindset. Everyone keeps feeding it. We have to say, "Stop," and take a look at something else. We all have some responsibility for that.

In churches, we perpetuated a theology that has somehow really encouraged that, and we have a great responsibility to bring the information to the people and reflect differently on it.

[Translation]

Senator Carignan: The John Howard Society of Canada took part in the Correctional Service of Canada Independent Review Panel in 2007. Ms. Pate, you also were a part of the Canadian Association of Elizabeth Fry Societies. The Association des services de réhabilitation sociale du Québec also participated in this exercise and Mr. McIsaac appeared as a witness when he was with the Office of the Correctional Investigator. Could you please confirm that? Four bodies participated in this exercise.

One of the conclusions of that independent committee was to eliminate the statutory parole and accelerated parole review process and replace them with an earned conditional release system, and to ensure that there was a single criterion for assessing conditional release.

Were you asked to express your opinion on those elements? What led the independent committee to make those recommendations? My question is for Mr. McIsaac and Ms. Pate.

[English]

Mr. McIsaac: I was never part of the committee. I appeared before the committee in my previous role as the executive director with the Office of the Correctional Investigator. The John Howard Society participated in the consultation with the committee. I feel safe in saying that there are very few conclusions or recommendations in that committee report that are supported by the John Howard Society.

Ms. Pate: Certainly we did not support that recommendation. We were not aware it was to be made until it was made. As you probably are aware, the whole review took about five months, even though the previous review that had been done by Parliament, which made a number of progressive recommendations, took a longer period and was a much more considered document. I think the panel following us will have a great deal to add to this.

I want to talk about earned parole. The rhetoric that parole is not earned now is just that. As Mr. Conroy indicated earlier, he had to return to deal with the situation of what was presumed to be a presumptive release, which is obviously not going to be because he is appearing to assist the individual. We are in a situation where it is far more than earned parole now. It is very difficult.

I just had reports back from our 18 regional advocates across the country. The number of women, even after everyone else is recommending them, being refused release into the community is very significant; although, even if they are retained to warrant expiry, many are not going back into the community.

To refer to the example, which Senator Runciman has been advocating, of a separate process and separate system for mental health in the community, and in particular the Brockville experiment, we had one woman who was near death — similar to the Ashley Smith situation — who was moved, to the credit of CSC. They got her into that separate agreement. That woman went from having daily self-injurious situations to two incidents in over four months. That is a huge success; yet we have not moved very far on the sorts of recommendations that I was speaking to earlier that need to be made if we want to achieve a greater change.

This woman is not someone who poses a risk to the general public. She has received many charges in a federal penitentiary of assaulting staff even when she has not actually touched them but has flailed about in restraints. In the Brockville location, she has not accumulated any charges because her behaviour was seen as exactly what it is, symptomatic of a mental health issue, not bad behaviour attempting to cause everyone problems, which is how it has to be seen because of the lens it is seen through in a prison.

More to the point, the self-injurious behaviour that causes many Canadians significant concern, especially since the publication of the Ashley Smith situation, went down to two incidents in four months. That is a huge success and is something we should be looking at creating more of and not criminalizing more people and leaving them in longer or pretending we do not have a very clear situation of earned parole in this country.

Ms. Berzins: You asked about what could have happened between what recommendations were made to that committee and what finally emerged as recommendations. I would like to point you to page 6 of your own Library of Parliament Legislative Summary because it really astounded me when I read it. It says that in the report of the Correctional Service of Canada Review Panel, "the panel justified abolishing APR by citing the fact that offenders granted parole under that procedure generally had a higher recidivism rate than other offenders."

In the following paragraph — and I will not give you the details — it quotes the statistics that were officially available to them in 2007-08, which show the opposite, that the higher recidivism rate is opposite to what they just concluded there. I do not know what inference to draw from that. You can draw your own, but it feels like double- speak to me. I do not know if that is the right expression, but if I am pointing to something black, this is red.

[Translation]

Senator Carignan: With regard to rehabilitation, what do you think of the fact that two individuals sentenced to 10 years in prison are not subject to the same conditional release program with regard to timeframe or release criteria? A non-violent crime carries the risk of a violent crime, and a violent individual can repeat offend even if the crime is not violent. According to the report, it seems that this point raises many frustrations. Offenders do not feel that their improvements or the quality of their work or their progress within the prison is being considered. They do not feel they are treated differently and this does not favour rehabilitation.

What do you think of having two sets of criteria, two different procedures for two individuals sentenced to 10 years in prison? My question is for Ms. Pate, and Mr. Henry can answer the question with regard to rehabilitation.

[English]

Ms. Pate: With respect, I think that we already have a bifurcated system when it comes to class. I will invoke the Anatole France quote from 1867, which I will not get verbatim. Essentially, he says the law equally forbids the wealthy and the poor to steal bread, sleep under bridges, and I forget the rest of it. The reality is that we already have a system that disproportionately impacts the most marginalized. I am not suggesting that defrauding anyone is something that should not be taken seriously. However, in most cases, as has already been stated, those who have been victimized — some of our members only work with those who have been victimized — generally are not looking only for jail time. Usually that is all that is offered. For some of the victims of Earl Jones and other significant frauds with whom I have had the opportunity to speak, the issue first and foremost was that they were not taken seriously; second, the only avenue open to them was prosecution for criminal behaviour. There was no remedy for compensation. I have not heard one of them say that if they had had a chance of a remedy for compensation, they would not have taken that first. That was not available.

We are talking far down the line to say that we are encouraging a belief that more serious crime means longer time in prison. If someone requires a separation so that the rest of the community is safe, that is a different matter. If we were talking about meeting the needs of victims, we would be talking about some very different approaches early on, including the bigger plan that we were all asked to speak to earlier. We would have had those services in place for victims. Louise Arbour said that in Canada, we should have a situation — and I would support her position on this — because we are a wealthy country, where everyone should be free from want. Everyone should be entitled to be fed, clothed, housed and educated. If we were not continuing down this path, I would suggest that we certainly have the resources in the country to achieve that.

[Translation]

Mr. Henry: I think that the accelerated parole review process, when it was created, concerned a very specific category of offender, offenders, individuals who were serving a first federal sentence and had little criminal experience. The idea was that they spend as little time as possible in detention in order to avoid having them gain more criminal experience. As I said in my presentation, we at the association believe that it is the automatic nature of this measure that is problematic. In our opinion, all offenders could be released after having served one-sixth of their sentence, but based on a decision made by the National Parole Board and its members. This would not then be automatic, but rather in accordance with the crime and the context.

Senator Carignan: You agree with the principle of dealing with all individuals equally, not with an accelerated parole review, but rather a board investigation. Where you disagree, is that it be after one-third.

Mr. Henry: In fact, it would be in relation to the timeframe. It would be important to keep release possible after one- sixth of the sentence for some offenders.

Ms. Berzins: I understand, like you, that people want consistency. I believe that this different procedure was created because the prisons were overpopulated.

Senator Carignan: Is that a good reason?

Ms. Berzins: Probably not. However, we have a problem when prisons are overcrowded, with people who have not committed crimes that require them to be locked up in order to guarantee public safety.

Let me give you the example of just the United States. If you look at the United States, now, they are truly experiencing a crisis. They are being forced to release people with even less consistency than this. We need to look at the crisis that we have, which is the overuse of prisons, and so of not being able to really ensure a consistent, logical and quality approach with regard to decisions we are making.

[English]

The Deputy Chair: We have three senators yet to ask questions: Senator Hervieux-Payette, Senator Joyal and Senator Chaput. I would ask you to keep your questions and comments as brief and concise as possible. As I mentioned earlier, we have another panel yet to come. They are being patient, but our time is running out.

[Translation]

Senator Hervieux-Payette: I have two comments to make. First, this bill does not deal with white-collar crime, it affects everyone. Everyone is being made to believe that this concerns white-collar crime and everyone agrees that white-collar crime, when it leads to poverty for hundreds of individuals, is a serious crime requiring intervention, and the provision on release after one-sixth of the sentence perhaps should not apply. All that to say that this has already been presented, and our colleagues in the House of Commons did not agree to it.

Second, my other claim is that the principle of one-sixth of the sentence was more or less for average crime, with a four-year sentence — because we are told that the average was four years — that is probably an assessment period that will enable the prisons to see if the individual concerned can be rehabilitated in normal institutions, in other words schools, training centres or halfway houses. I think, when I get my car washed, that the people working there, and they do not stay there very long usually, come from halfway houses.

My question is as follows, for anyone who wishes to respond: has a system been adopted that, in my opinion, consist of bandaging the wounds to society as a result of crime, in other words, a system of reconciliation? We have seen and heard from some aboriginal communities that applied that kind of system, involving the victim and the individual who committed the crime, to ensure that there can be reconciliation in order to be able to start over, and finally move towards a decrease in crime. Above all, in this system, the victim has to stop feeding their anger and the criminal has to understand the hurt they have caused and that they can change their lives.

Have these kinds of measures been put in place either in Europe, the United States or elsewhere? Would you be in favour of such measures? In my opinion, the approach set out in Bill C-59 would create more criminals.

[English]

That is cruel to women. They are already victimized and poor. In fact, they are already at the lowest of our society. Like Senator Smith, I would like to find a solution that would help us to solve the problem. I am excluding mental illness. The Senate produced a fabulous report on mental illness. Some steps have been taken with that report, but that is another matter.

We are not dealing with mental illness in the criminal, even though we have the world-renowned Philippe-Pinel Institute in Quebec. However, we do not have the same level of quality of care throughout the country.

I would like to have your comments about reconciliation.

[Translation]

Mr. Champagne: In Quebec, we have the Centre for Services in Restorative Justice, which is not a religious centre but which works exactly like the aboriginal circles. We meet with three or four victims, three or four offenders, either in the prisons or the community, and we meet, depending on such crimes, in order to try to heal the wounds. We do this because we realized that justice does not heal all wounds. Often, even when people get compensatory damages, it is not enough, the wounds need to be healed. What we have realized, at the community chaplaincy services of Montreal, is that it is essential to help victims progress through the stages. Offenders who have been prepared for it in the prisons or in halfway houses can take part in this program.

This service is also offered in other provinces. I know that there are restorative justice groups in Ontario and in central Canada, there are in Winnipeg, in any case. It is important that these non-governmental organizations receive subsidies in order to be able to achieve their mission. That is why the Council of Churches has opposed the construction of prisons; instead let us build psychiatric institutions, social insertion spaces, let us provide housing to men and women released into the community and who, very often, are sent to the Old Brewery Mission in Montreal. That is the last recourse that I would use, because they will be living in a dormitory with 150 other guys coming off the streets who smell! It is terrible, inhuman. I see this reality: you get your "SR," statutory release, adieu, bye-bye, go to the Salvation Army or the Old Brewery Mission to a dormitory.

It is important to check that the money given for social integration is totally invested in non-governmental organizations for whom a dollar equals $10 paid to a governmental organization.

Let us try to be more generous; that is why the Council of Churches opposed this governmental measure.

[English]

The Deputy Chair: Once again, I ask you to keep your comments as concise as you can and focus on Bill C-59, please.

Ms. Pate: On restorative justice, one of the first programs that I set up when I was still with the John Howard Society was described as one of the first secular, non-religious, non-indigenous restorative victims programs. It was well supported by the police and by victims' services in Calgary, where I started it. It focused on youth and then started working with men and moved to armed robbery, ultimately.

It had many really good aspects to it. It was also part of why we started moving to doing more work in other sectors, for example, in schools, communities, with social workers and with child welfare. We saw that the minute you peel back a few layers of that, you see much broader social justice issues.

I will not repeat other things I have said, but part of the reason I invoked the Anatole France quote is that it is one thing to have victims of white-collar crime being addressed or not being addressed — I think the bill is trying to take too wide a sweep, as we stated — but we have not addressed how we set up the situation and how it is that we have increasing numbers of people who are infinitely able to be criminalized because they are poor, as has already been stated. We have not dealt with inadequate social assistance. We have not dealt with many factors that are making people victimized and criminalized within our system. We need to have those discussions, too.

Senator Joyal: Welcome. I am always impressed to hear testimony from people who are busy on a daily basis doing the work that government programs should be able to achieve. I think you are an essential complement to the overall objective of keeping Canadian society safe. Without you, Canadian society would not be that safe, and I commend you.

[Translation]

I would like to tell the Council of Churches that it is reassuring to hear church representatives take committed social positions, and not just positions on principle that do not require individuals working within the churches to make specific personal gestures of commitment. I would like in particular to say this to Mr. Champagne and Ms. Berzins.

[English]

One of the arguments that we have heard in support of this bill is the fact that the provision in our statute of access to accelerated parole review does not deter criminals anymore. Criminals can say to themselves that after one sixth of their sentence, they will be back in the community and in a halfway house. The general perception is that a halfway house is Holiday Inn-type housing and that you are free to do whatever you want.

We heard Mr. Westwick, a representative of the Canadian Association of Chiefs of Police, who I expected would have had the better experience of what a halfway house is, but I did not hear anything of his experience of halfway houses. However, the essential argument is that serving one sixth of a sentence to be eligible for APR is essentially not deterring enough criminals from committing their crimes.

What is your perception on the basis of your own experience of the deterrence effect of the penalty in the Criminal Code in the context of the people who you visit on a daily basis try to reintegrate into society? Is it a real argument, or is it just because it is part of a simplification of the system. The longer the penalty, the better the citizens will abide by the law; it is that kind of simplification. What is your reaction to that, on the basis of your experience?

Mr. McIsaac: Our experience, as well as research in a number of jurisdictions, has indicated that sentence length does not act as a deterrent. Most criminals are not expecting to get caught. The belief that somehow they have knowledge that they will be released at one sixth, I find rather surprising when we have heard testimony from a number of witnesses indicating that they were shocked and surprised by the fact that individuals could be released at one sixth.

Extending the time in jail, especially for first-time, non-violent offenders, as I said in my introduction, becomes rather counterproductive if your goal is the protection of our society.

Senator Joyal: Can you comment, Ms. Pate?

Ms. Pate: Yes, I would agree with that.

[Translation]

Mr. Henry: I want to clarify that when someone is released after serving one-sixth of their sentence, they are not released from all their legal obligations. As you said, that individual will likely go to a halfway house and will be subject to conditions imposed by the National Parole Board that that individual will have to respect until the end of their sentence.

Senator Joyal: Mr. Champagne, I saw you raise your hands to the heavens.

Mr. Champagne: Halfway houses are not as wonderful as one might think. Sometimes people need to be monitored, sometimes the offenders need to be monitored. But often they are monitored and they are over-monitored. They are subject to many restrictions.

More specifically, I work with a somewhat more complex population in the Community Correctional Centres, which are Corrections Canada halfway homes. These halfway homes are even more restrictive: offenders will only have a few hours out each day.

There can be two, three or sometimes even four offenders to a room. Some prisoners say that they would prefer to go back to prison because they had their own cell there. But if I live in a Community Corrections Centre or CCC, I have to share my room with three other men. It is not as great as it sounds.

That is why I have recommended on several occasions that the issue of rehabilitation in halfway houses be considered and that instead of investing in the prisons, we invest in social integration to ensure that everybody can take their place in society. It is not by treating individuals like the dregs of society that we will make men and women proud of themselves.

Bill C-59 keeps men and women in prison longer so they can become hardened inmates rather than men and women able to experience true integration.

We need more social workers and not just prison guards. We need people who can work in the rehab programs being provided to these men and women.

Ms. Berzins: I agree with everything that has been said.

Senator Chaput: I have some questions with regard to Bill C-59 that I would like your opinion on. Bill C-59 would gradually eliminate accelerated parole review. Why is this approach being taken? Is it to punish offenders or criminals? Is it not rather the sentence that seeks to punish an offender?

This leads me to another question. By withdrawing a mechanism such as accelerated parole review, are we eliminating a mechanism that encourages rehabilitation and social integration?

Mr. Champagne: In short, yes, senator. You are quite correct.

Ms. Pate: That is my opinion as well.

Mr. Henry: As we have all said, accelerated parole review targeted individuals with little-to-no criminal past and the main purpose of the sentence was social integration. By passing Bill C-59, the social integration of such individuals is being restricted.

[English]

The Deputy Chair: Those certainly were very concise responses, and I thank you for that. We have one further question from Senator Smith.

Senator L. Smith: It is a fascinating discussion. I still think that it is important to stay on the subject. We got away from the subject, and I am the guy who took us away from that subject to talk about the big picture.

[Translation]

I was president of the Old Brewery Mission for three years, an organization that sought funding to build new infrastructure.

The vast majority of individuals using those services had mental health problems. The problems you are discussing are real problems, but I believe that the provinces and federal government must establish an action plan that takes into consideration mental health. According to statistics, 13 to 30 per cent of men and 26 to 50 per cent of women using that facility have mental health problems. That is why the problems and options must be clarified within an action plan.

[English]

Ms. Pate, you are so eloquent. You know your subject matter, which is fantastic. However, I still think that we need to have people like you who can crystallize these action plans. When you create that type of support for mental health, it will be outside the prison system, or it will be a form of the system, and that will affect the numbers in your system. However, what we are talking about today is something that needs to be addressed to handle an issue in front of us. What we are talking about at the other end is a long-term issue that has to be properly addressed.

[Translation]

Your comments on the longevity of our society are extremely relevant. In the north, there are social problems that start at birth and with the travel chief, the economic structure, people are affected from birth and these problems will persist until the basic structure is changed. I want to thank you for your comments. You have raised some excellent points. However we are considering a bill and we must examine it.

[English]

Mr. Champagne: I just opened a new house for six ex-inmates with low mental illness problems.

[Translation]

They have a mild disability, but they have all done time.

[English]

Now I have six rooms, and they are all full, and everyone is looking for me because they need more places.

[Translation]

I opened this house in an empty parish manse.

[English]

I hope to open another one in three to six months.

[Translation]

Senator L. Smith: My congratulations.

[English]

Mr. Champagne: This is with no money from anywhere. We just pay the rent to the parish.

[Translation]

Senator L. Smith: Imagine what happened when we tried to advertise for the Old Brewery Mission. Very few companies wanted to give money because it was not a sexy problem.

[English]

The Deputy Chair: Thank you, Senator Smith.

That concludes our questions to this panel. I sincerely want to thank the panel for your thoughtful comments. The passion with which you express them is clearly evident to all of us. Thank you once again.

Senator Joan Fraser (Chair) in the chair.

The Chair: We now welcome a panel of academic witnesses as we continue our study of Bill C-59.

[Translation]

It is An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other acts.

[English]

We thank you all for being here and for hanging in, even though we are running later than we had hoped. We are delighted to have the chance to hear you.

Starting on my right, we have Professor Darryl Plecas from the University of the Fraser Valley. He has been here more than once. We have Professor Irvin Waller from the University of Ottawa. We have Professor Michael Jackson from the University of British Columbia. Also with us is Mr. Graham Stewart, a former executive director of the John Howard Society of Canada and co-author of a study on issues related to corrections and prisons in Canada. In particular, Mr. Stewart and Professor Jackson have cooperated on a study directly related to the issues before us in this bill.

Gentlemen, I believe you have agreed among the four of you that we will begin with Professor Plecas.

Darryl Plecas, Professor, as an individual: Good evening everyone, and thank you for the privilege of being here. I feel especially privileged. I know I am sitting alongside three pillars of public safety and justice in Canada; collectively, they have over 130 years of experience looking at criminal justice issues.

I am a strong supporter of Bill C-59, but with one reservation. As I see it, the bill will ensure that all inmates being considered for release will be subject to a review process that will consider the likelihood not only of violent recidivism but also of recidivism in general. In fact, all cases will be considered with equal seriousness. That review process, as we know, is critical. It is the process that says to the courts, "We are, in effect, revisiting court decisions to remove someone from society. We are reconsidering a judge's consideration of public safety and rehabilitation."

It is also fair to say that the new bill will help encourage inmates to think in terms of release as earned release to improve their likelihood of being successful. I know this very intimately from my experience working for the last six years as an independent chairperson in the Pacific region and having talked literally to thousands of inmates about that issue.

We also know that this review process is one major reason why the Correctional Service of Canada and the Parole Board of Canada have such an impressive track record with respect to recidivism. Indeed, you have all heard today that the system works.

However, you have also heard that where the review does not take place, the risk to reoffend is higher, and, of course, there is no surprise here. In theory, we should expect that to be the case because we simply do not have the rigorous process of assessment going on that we do with other offenders. That is particularly significant because we also know that some of those offenders who are, in effect, automatically eligible for release are highly recidivistic. At the end of the day, we know that the failure to review adequately is also disrespectful to the fact that the safety of Canadians can sometimes be hurt as much by property crime as by violent crime.

We also heard that one concern is that prison costs will rise. I would submit that we should not be in a hurry to jump to that conclusion. There are indications that crime rates are on the decline, significantly so in British Columbia, as never before in our history. They are on the decline in the United States, and that has resulted in closure of prisons.

I am also aware that, at least in British Columbia, a number of federal prisons are nowhere near full. One I am aware of is only half full as we sit here today. I am thinking that there will not be some immediate overcrowding situation, and my guess would be that over the long haul we will see, as is the experience in other places in the world, where that prison population should be declining despite other things that are going on.

The one reservation I have is with respect to the bill's being retroactive. I quite honestly do not see how that is possible. Other than that, again, in sum, I am a strong supporter of the bill for the reasons I have outlined.

[Translation]

Irvin Waller, Professor, as an individual: Good day and thank you for inviting me to testify before you today.

[English]

It is true that I am a professor at the University of Ottawa and have been there for over 30 years. I was a director general in the Canadian government when the dangerous offender legislation started.

I want to tell you just a little bit about my pedigree because I think it is important to this. It is on the second page of my presentation. I am currently the president of the International Organization for Victim Assistance based in Portland, Oregon, and the author of the only independent evaluation that has ever been done of the Correctional Service of Canada and the Parole Board of Canada, and I was a member of the Hugessen task force, which has done a number of important things for parole review, including adding victims and police officers as members of the board. I have won awards for my work at the UN to establish standards for victims. I have been a CEO of the International Centre for the Prevention of Crime in Montreal.

I have written two books, both written for legislators. The first one, Less Law, More Order: The Truth About Reducing Crime, has been translated into four other languages and has influenced a number of very important initiatives. The most important for us today is that, as Senator Smith mentioned, the way we need to go with crime policy in Canada is to be concerned with crime victims and what we can do to reduce harm to crime victims, what we can do to repair the damage, what we can do to give them safety and what we can do to give them justice.

There is a province in this country that brought together a task force to look at what should be done and has a provincial action plan along the lines that he mentioned. That is the province of Alberta. It has brought nine ministries together, which are all the ones one would expect: early childhood, youth, police, courts, Aboriginals and so on. It has just about finished the first three years of a ten-year plan. Without a shadow of a doubt, that is what we should be doing in this country and not taking bills one by one by one. I disagree with my honourable colleague on this one point. I think they will lead to huge increases not only in provincial prisons, which they have already done, but also in federal prisons.

The second book I think is extraordinarily important. I do not actually wear my victimization on my sleeve, but I have written a book called Rights for Victims of Crime: Rebalancing Justice, a book that sold out within three weeks in the United States. I will have to see how well it does in Canada. Again, Albertans have been purchasing many copies.

The general conclusion from my professional life has been about evidence and not about a gut reaction. I have been with many victim groups, and I know the pain they go through. I know my own pain. The solutions are not limiting everything to some increase in incarceration. It may bring closure for a few victims. It often does not bring closure for others, and it does not provide the sort of public safety; and we can provide accountability to the general public in many other ways. Of course, the crime rate is dropping in Canada because victims are not reporting crime to the police, and we need to be concerned about that.

My recommendation is that if we are to spend another $90 million to $100 million a year to house the additional people as a result of this bill, we should put the same into the prevention and treatment programs that will actually help. These are things that have to do with youth, women and neighbourhoods. I know the focus here has been on white-collar crime and the many things we know from situational crime prevention that we can do. We know from Madoff that penalties will not solve the problem in Canada. We do not need any research to see that obvious conclusion.

We need to be putting money into the municipalities in this country that from coast to coast are working on these sorts of issues. We need to focus on restitution and providing standing for victims in the process. These are not victim impact statements but real standing — sentencing parole like France does and the international criminal court does.

We need to get a lot tougher on data. One of the most disappointing things about the various bills that have been introduced is the total lack of data to support them. We need to get data that deals independently of the government agencies and that tells us what is actually going on with crime, not what the police tell us, that tells us what is going on with recidivism and not what the Correctional Service of Canada does, and that focuses on what we will do about the $85 billion that crime is costing victims according to Justice Canada.

Graham Stewart, as an individual: Thank you for the invitation to come and to address this committee. When we looked at the schedule of hearings today, I wondered whether at this point in the day senators would be awake, let alone alert. I wanted to say I have been very impressed watching throughout the day to see that you have been awake and alert and very respectful, too, which is important to those of us who come and testify. Thank you for that.

Bill C-59 addresses correctional law. It does not address sentencing. It is not a sentencing bill. Having said that, I recognize that the Earl Jones case is a legitimate concern and that it sets up very special problems that I hope we will have a chance to address. Also, in what I have heard today, I do not believe personally that the concerns I have heard from all sides are mutually exclusive, but I do think there are serious problems with this bill.

Let me begin by talking about this being correctional. The purpose of corrections is set out in the Corrections and Conditional Release Act. What it says is that the purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders and to assist the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community, and that is it. There are no other purposes. There is no purpose that addresses either deterrence or denunciation.

That is not an oversight. It reflects clearly that, in a system in which virtually everyone who enters will be going back into the community at some point, a correctional system that does not address as its first priority the successful reintegration as law-abiding citizens cannot be seen as one that has the principle of public safety as the primary factor. This is an inevitable problem that we have to address, and it is coherent in terms of corrections.

The government is not bound by the purpose of correction, but it does make sense if we expect the Correctional Service of Canada and others to be bound by that purpose that we try to be consistent with it. Therefore, I would ask you to give that some consideration.

The second point that I want to refer to concerns one of the principles of the act. There are a number of them, but one of them is that the service use the least restrictive measure consistent with the protection of the public, staff members and offenders. These restrictive measures are important concepts and completely consistent with the use of power of the state over its citizens. It is very difficult to comprehend a system in which the power of the state is not restrained by some principle. The notion that it be no more than necessary to achieve the purposes of the sentence seems appropriate. Otherwise you have a system that tops up the system with a bit of abuse. It goes beyond what is necessary. That is the difference to be made between corrections and just raw punishment.

The third bit of legislation that I want to bring to your attention is the criteria for granting parole. This is also in the Corrections and Conditional Release Act. The Parole Board of Canada or a provincial parole board may grant parole to an offender if, in its opinion, one, the offender will not by reoffending present an undue risk to society before the expiration, according to law, of the sentence the offender is serving, and two, the release of offender will contribute to the protection of society while facilitating the reintegration of the offender into society as a law-abiding citizen.

I first want to bring your attention to the fact that they talk about the risk "by" reoffending, not the risk "of" reoffending. This is an important distinction, because it implies there are two dimensions to be considered: One is the likelihood of a person committing an offence, and the second is the seriousness of the offence, should it occur.

That is the reason why those who sometimes have committed the most serious offences are scrutinized with the greatest detail, even though, as a group, they actually have a very low recidivist rate. Many violent offenders have a good prognosis for the future. At the same time, the notion that they might commit a serious offence makes us all the more cautious.

At the same time, at the other end, there is recognition that some people may have a higher risk of committing an offence, but those offences tend to be less serious. The legislation has drawn a distinction, and that is important to recognize.

In the case of APR, the legislation does reflect that — crudely, perhaps, and it could perhaps be done much better, but that is the intention behind it.

I would like, then, given this legal framework, this set of principles that I think are important in a principled criminal justice system, to talk about effectiveness. When all is said and done, effectiveness of the various programs matters. It is all conditional on the notion that you are making these decisions with regard to public safety, the safety of the guards and the safety of offenders.

During the course of the day, I have heard a number of people talking about the data around APR and its effectiveness. I have been very concerned because there seemed to be a growing assumption in the room that it has not been effective and that it has been much less effective than day parole.

I would like to make two points. I have in front of me the most recent data. This is the data produced by Public Safety Canada, Corrections and Conditional Release Statistical Overview, the annual report for 2010. I say that because some of the data that is presented in the legislative summary is two years old. It is included.

I hope that you will be absolutely sure to have this data correctly in your mind before you make decisions, because there is no way you can look at that data and say that the APR group is a greater risk than the day parole group, which itself is a very low-risk group.

If we look at day paroles for 2009-10, with regular day parole, the successful completion rate is 86.3 per cent. With the APR group, it is 86.8 per cent. If you look at revocation for a breach of conditions, it is 11 per cent with the regular day parole, and 10.8 per cent with the accelerated group. For a non-violent offence it is 2.2 per cent for the regular day parole and 2.4 per cent for the accelerated group. It is 0.2 per cent greater. For a violent offence, it is 0.5 per cent for the regular day parole, half a per cent. For the accelerated parole last year, it was 0 per cent. In corrections we do not get better than 0 per cent, and we do not often see 0 per cent.

When you look at the full parole, the number is somewhat different, but the difference between the two groups is very small, and the rate is very low. The difference in revocations for a non-violent offence between the two groups is 0.6 per cent, so we are talking about 5.7 per cent to 6.3 per cent. For violent offences, the difference is 0.7 per cent, with the APR group doing better than the full parole group.

The differences are really very minor, and they are all low. It is very difficult for me to understand how anyone could look at that data and conclude that it is not a very successful program. It is here. I hope you have been given this data and will have a chance to look at that.

The Chair: If I may interrupt, colleagues, even if not all of us have those data now, we will have them by the first thing tomorrow morning.

Senator Runciman: Who provided that?

Mr. Stewart: Public Safety Canada. It is the annual summary of data produced by Public Safety Canada on corrections and conditional release statistical overviews.

Senator Runciman: I have different statistics from the same report.

Mr. Stewart: Are you looking at page 88?

Senator Runciman: I just have a summary of them.

Mr. Stewart: The legislative summary is from 2007.

Senator Runciman: Page 90 is the reference.

Mr. Stewart: Page 90, which is comparing accelerated parole review and parole. In that case, the successful completion rate for the regular parole is 81.2 per cent, and for the APR, it is 74.1 per cent.

Senator Runciman: That is right.

Mr. Stewart: For the revocation with a breach of conditions, it is 12.2 per cent for regular parole and 19.4 per cent for accelerated parole.

Senator Runciman: That is right.

Mr. Stewart: This tells you that most of the difference between the successful completion rates is about revocations rather than crime. When you look at the crimes committed, the difference is 0.6 per cent in the case of non-violent offences, with the accelerated group being 6.3 per cent and the regular being 5.7 per cent. For a violent offence, it is 0.9 per cent for the regular and 0.2 per cent for accelerated group.

The fact that the revocation rate is higher with the APR group is important for you to consider. In the APR group, in consideration for release, the focus is on violent offence alone, and if there is no concern about a violent offence, a person would be released. Once released, that condition does not continue.

The criteria for a revocation, and there are very powerful powers of parole supervisors to return people just because they see deterioration, do not distinguish between violence and non-violence. In that case, there is a sense that if a person is deteriorating, because perhaps he started drinking, he is not coming to appointments or whatever, they have the authority to return that person to jail, and they do.

I would like to talk about fairness. I have heard this a lot today, and I understand why many of you are concerned about fairness in this case, those coming up for APR having different criteria than those in parole. When you look at the law, they do distinguish between the two groups. In reading it from the legislative perspective, I can completely understand why that appears unfair. It must raise in your minds the question of why anybody dreamt this up in the first place.

What is not shown here is that the system itself, and the way that it operates, has an inherent, systemic unfairness that this legislation was intended to address, in part. That is that short-term people, and we are by and large talking about short-termers — this is partly where the problem with Earl Jones throws things off — do not have access to parole on their eligibility day, because it takes too long to prepare. It is the accelerated review that the legislation addressed. It was to ensure that those serving short sentences actually had a chance to be reintegrated under the gradual release provisions.

In that respect, let me just talk about the effectiveness of gradual release. That is very important, and it is particularly important for short-termers.

I referred to the study prepared for Parliament by Larry Motiuk and the senior researchers for the Correctional Services of Canada. They produced a report entitled The Safe Return of Offenders to the Community Statistical Overview, which attempted to summarize the information.

What was said in this report was that, of all the factors that influence public safety, the Correctional Service of Canada in collaboration with the National Parole Board can influence only the safe release of offenders to the community. There is solid evidence to support the premise that the gradual and structured release of offenders is the safest strategy for the protection of society against new offences by released offenders.

Gradual release is the safest strategy because it deals with concerns that cannot be addressed within prison with prison programs. Prison programs can address addictions to some extent. They can address attitudes, education and knowledge. However, in community supervision, one can address the circumstances under which the person is living.

There is this other array of factors such as who your associates are and what neighbourhood you are living in. In addition, there is the ongoing option of intervening when things are deteriorating. That is why gradual release is so important. It is not to be seen as simply relief from imprisonment. It is not forgiveness. It is not a change of mind about who the person is. However, it is recognition that, if you have been in jail and you are coming into the community, we must be concerned about those conditions. It provides an important opportunity to do that.

That may be one of the reasons why the evidence generally shows that programs that are operating in the community, such as those for addictions, have a better success rate than those that operate in prisons. Mr. Head made that point this morning. It is true. That is what the research says. It is encouraging.

With regard to the question of unfairness, I would like to bring to your attention the report of the Auditor General from 1996. He addressed the structural problem quite clearly and aggressively. No one else has mentioned it today. Therefore, I want to ensure that it was not just a theory on my part. I will read two paragraphs of that report:

30.29 Federal statutes require Correctional Service to maintain offenders in the least restrictive level of custody. Thus, when offenders miss their parole dates because of slow case management, the Service may not be complying with its obligations. In addition to these concerns, failure to prepare an offender for safe release from custody at the earliest possible date has significant cost implications both in monetary terms and, more important, in terms of public safety when scarce resources are not used wisely. Furthermore, missed parole eligibility dates may also adversely affect offenders' chances for safe reintegration, since many criminologists believe that incarcerating an offender for too long is counter-productive.

30.35 To determine the extent to which the case management process prepares short-term offenders for their first parole eligibility date, we analyzed all of the approximately 1,800 offenders (368 were assessed as low-risk) admitted in 1995-96 with a sentence of three years or less. . . . we found that, on average, four and a half months had elapsed before their correctional plans had been completed. This left an average of 19 days to complete the prescribed programming, assess program benefits and prepare and submit the case to the National Parole Board. If three programs had been prescribed for all of the 1,800 offenders in our sample (see paragraph 30.33), almost 100 percent would not have finished their programs until three months after becoming eligible for day parole.

Therefore, it is not surprising that, the next year, they added APR for day parole to the APR that already existed. Very clearly, it was trying to address, in part, at least, a structural unfairness in the system that resulted in those offenders who were the least serious and had the best prospects on release from benefitting from gradual release. That is not fair. To say that you are entitled to apply but you have no title to be heard is not fair.

With respect to being automatic, it is worth noting that the grant the rate for APR is considerably lower than the grant rate for full parole. It is 71 per cent for regular day parole and 65 per cent for APR. In fact, it is not automatic.

In the end, what we have is increased inconsistency for the purpose of corrections as set out in the Corrections and Conditional Release Act as well as the principles of least restrictive measure without evidence to justify the need for this change. It is a problem.

It is unfairness. To systemically deprive the least serious offenders of the opportunity to apply for day parole on their eligibility date is a serious problem. We should not overestimate the implications on a prison population of a flagrantly unfair practice. It leads to ineffective corrections. Depriving most short-term non-violent inmates of the benefit of the most effective programs is not effective corrections. That leads in turn to potentially greater victimization.

It is not possible that violent recidivism can be reduced from the already extremely low levels. If there will be a change of behaviour, it can only lead to worse circumstances.

Finally, let us consider the cost. We heard from the commissioner today the figure of $413 million over five years. That is almost half a billion dollars, to round it out. I would ask you to consider what jurisdiction in the world has made its system both bigger and better at the same time?

With half a billion dollars in prevention, one cannot help but wonder whether cases such as the Earl Jones case could not have been prevented. Surely, that is a preventable crime. I have been the director of a charity for 40 years. I have an audit done every year, which is reviewed.

We have heard about the problems of prosecuting. These are complicated, expensive prosecutions. Half a billion dollars could be more effective. In terms of deterrence, the likelihood of apprehension is greater than any sentencing provision. Half a billion dollars could do tremendous things for mental health.

Michael Jackson, Professor, as an individual: I am a professor of law at the University of British Columbia law school. I am also a Queen's Counsel, and a member of the Law Society of British Columbia. I taught the first courses in a Canadian law school on Aboriginal rights and also the human rights of offenders. I have represented both Aboriginal peoples and offenders in test cases in the Supreme Court of Canada, dealing with some of the issues which are before this committee.

In addressing students at the law school and when before the courts, I encourage the examination of the facts — the evidence — look at the issues and then bring to bear the appropriate principles of law on those to come up with a principled, reasonable and responsible judgment. In the next day, you will be called upon to make such a judgment regarding this bill.

I will start with the evidence. I came with a view to listen, as you have today, to the facts presented before you, the documents which have been laid before this committee. I will share with you the conclusions that I have come to from reviewing that evidence.

I address the perception that accelerated parole review is an administrative sleight of hand, an end run around sentencing by which, through administrative decision making, people automatically get a get-out-of-punishment card at one sixth of their sentence. The indisputable facts are that, of the 1,500 people who are eligible under the law for accelerated parole review, 550 of them did not get accelerated parole review. They were referred to a panel. There was a comprehensive assessment — the full-on review by two members of the parole board. As a result of that review, a third of those eligible did not get accelerated parole review.

I have a practice, and I represent offenders before the Parole Board of Canada. I teach a course, so I am current with other practitioners in the practice of the board. Therefore, I can tell you from my own personal experience that many, if not a substantial number, of those who are denied accelerated parole review are precisely some of the individuals that have concerned several senators today.

I have heard the comment: "What about drug offenders who peddle drugs to young people and who destroy lives?" The Parole Board of Canada draws a long bow when it comes to drug offences, particularly when those drug offences are part of gang-related activity. The bow they draw is that, while the offence may not have involved violence in itself, they look at the risk of committing a violent offence before sentence expiry. Given the association between drugs, gangs and violence — the extortion, the intimidation — it does not take very much to satisfy the board that an offender will before sentence expiry commit an offence involving violence, even though his index offence is that of a first-time federal offender for a non-violent offence. Therefore, some of the concerns you have regarding people getting a clear run at freedom when their offences are as or more serious than the offences of other people who do not get that one- sixth privilege.

The second point I want to make is related. Being on day parole is not a get-out-of-punishment card. The conditions in halfway houses are tough. You are subject to curfews and suffer restrictions on your freedom. It is a typical condition of day parole that you not associate with people who are involved in criminal activities or who are believed to be members of gangs. There is a very easy trigger to be pulled by the parole officers, if they believe that you are running close to the wind.

A colleague of several of us a number of years ago was reviewing the parole system in Canada. His book was entitled Permission to be slightly free. I think that is a very good characterization of day parole.

Those who are on accelerated parole are under very strict supervision. It is not difficult for them to be brought back into prison. Many people I have represented have had their APRs suspended for making phone calls to the wrong people or for being seen in the company of the wrong people, according to the police perception of who the wrong people are.

I do not think I need to spend much time on the next point I want to make because the facts here are unequivocal, even though we had some equivocation and argument during the day. It is the question of whether the goals of accelerated parole release have been accomplished in terms of facilitating reintegration consistent with and not at the cost of public safety. Mr. Stewart read to you from Public Safety Canada's 2010 Corrections and Conditional Release Statistical Overview.

There is nothing unambiguous about no offenders this year who have committed a violent offence on accelerated day parole. That is an exceptional figure. I have never seen it before, but for five years, the trend has been there.

These figures are from the Public Safety Canada liturgy, if I may put it this way. Reading from the Corrections and Conditional Release Statistical Overview, you cannot but come to a conclusion that the variation between accelerated parole reintegration consistent with public safety and normal parole are not distinguishable in a way that justifies legislative action that would view APR as a failure in terms of public safety.

The fourth point is a very important one that has been touched upon, and I know members of this committee are aware of it: the impact on disadvantaged and vulnerable groups. As I said, I have done a lot of work with Aboriginal peoples. I wrote a report for the Canadian Bar Association in 1988 called Locking up Natives in Canada. It was cited by the Supreme Court of Canada in the 1999 Gladue decision. The figures in that case, well-known to members of this committee, were that 11 per cent of the federal population was Aboriginal. It was higher for women.

That was in 1999. The Supreme Court of Canada referred to that as "a staggering injustice." The Supreme Court has never referred to anything in the history of this country as a staggering injustice. It is now 19.9 per cent and for women it is 33 per cent. I do not know what the Supreme Court would make of that. I do not know where you go above "staggering injustice."

We already know from the figures that the Correctional Investigator has given you that APR is something that Aboriginal people access less — fewer of them are eligible for accelerated parole, but over 30 per cent still are. I ask members of this committee: If this legislation were neutral in relation to everything else and if the only impact was that it would limit even further the ability of Aboriginal people to get a fair shake and to get out of prison on a conditional release like everybody else, why would you want to contribute even more to the staggering injustice?

The Chair: Mr. Jackson, we are very short of time. I wonder if I could ask you to move on rapidly.

Mr. Jackson: Let me go to the issues. I will deal with the one issue that I know has most troubled members of the committee, which is the issue of retroactivity and whether this bill is consistent with the Charter.

Accelerated parole release was introduced as part of the Corrections and Conditional Release Act. It had been part of the correctional regime prior to 1992 for some 15 years. In terms of the one-sixth eligibility for day parole, it was made into a presumptive entitlement in 1992.

The Corrections and Conditional Release Act itself was a product of some seven years of deliberation. It was the first federal statute subjected to a systematic review to ensure all of its provisions were consistent with the Charter of Rights and Freedoms. It is the piece of federal legislation that, more than any other, is a Charter-driven and a Charter- values document.

In terms of a seven-year review to ensure every provision measured up to the challenges and the requirements of the Charter, it troubles me that the House of Commons in one evening and the Senate in one day would conduct a review that would not just modify but abolish that. Your own legislative review has already indicated that there are a number of alternatives: widen the criteria, so the criteria would be general reoffending; change the onus, so that the offender has to demonstrate that he is not a risk; widen the group that are not eligible to include large-scale white-collar criminals. There are a number of alternatives.

How can you move to abolish APR without looking at the reasonableness of those alternatives, particularly since some of them have been proposed by this very this very parliamentary body that would include more limited restrictions than the abolition?

In terms of looking at Charter values and the issue of retroactivity, it would be in one fell swoop abolishing a whole generation of reform, doing it retroactively in what I believe is in derogation of fundamental principles of the Charter, and what is in the context of the Corrections and Conditional Release Act review a one-day reflection.

I am finished, Madam Chair.

The Chair: We will go to questions, then.

Senator Wallace: Thank you. It is hard to know where to begin. I must say that each of you presented more than a little bit to think about. I hear from each of you some common themes and likely common thoughts that each of us would share.

Our system for incarceration and parole in particular takes into account seriously the interests of the offender and the interests of the protection of society and victims. I hear that constant theme coming from each of you, that we should be applying principles that result in the least restrictive measure of custody being applicable, that gradual release is the best option, that rehabilitation is important. A longer-term plan would be helpful. Professor Waller referred to a 10-year plan.

However, we are dealing here with one piece of legislation. I think we all understand the point. A comprehensive review of all of this is required at some level, and it is beyond the mandate we have in this committee with this particular review. However, none of us would disagree with any of these principles.

Most of you were here earlier and heard me allude to this before. Beyond all of that, we have a situation here where we have accelerated parole review requirements and criteria, which differ from non-APR. On the face of it, at least, there would seem to be some inequity or lack of equality. Why do we have these two different groups, those subject to APR and those not, having different criteria applied in determining their eligibility for day parole? With APR, it must relate to a violent act, whether there would be the risk of recurrence of a violent act, which is not, as you know, the criteria that apply to the non-APR situation.

Similarly, we have in those APR situations victims not having a right to appear before the parole board and present their issues and have their interests taken into account by the board. In non-APR circumstances, that occurs. You probably have a sense of what I am leading to there. There appear to be two separate categories and, I would say, inequality in the criteria and the rights that apply to each. Would it not make sense as a starting point to have each of those offenders considered, at least initially for the purpose of day parole, on the same basis? By doing so, it would be left to the parole board in its discretion to apply the factors relevant to the individual circumstance before them; thus it is not a one-size-fits-all solution, but at least the governing requirement going into it would be the same for each of the two groups, those who are subject to APR circumstances and those who are not. I see that as a major premise and principle behind Bill C-59.

Does that seem reasonable? Am I missing a fundamental legal point in attempting to get a system of justice in this country that will not only be fair but also will to the public appear to be fair and reasonable as well?

The Chair: You can all have a crack at it, but a concise crack.

Mr. Jackson: From 1977 to 1992, the one-sixth eligibility for day parole applied to everyone. That was before the Corrections and Conditional Release Act regime. If you are concerned with equality and ensuring everyone is treated the same, the argument would be to go back to the pre-1992 regime to broaden rather than to narrow. I am not suggesting you do that, but the argument for equality speaks to the pre-1992 regime. It was changed because it was unreasonable to expect people to be ready for a parole review at one sixth.

Senator Wallace: I guess I am interrupting you, Professor Jackson. One option would be to go in that direction and take everyone to one sixth, but that is not the only option. The other option would be to take everyone to the other level.

Mr. Jackson: The reason for doing that was a judgment that, given the scarce correctional resources — programs are expensive — it made sense to concentrate those scarce resources on those who are the higher risk. That is why the APR group was identified as first-time non-violent offenders. It was a decision consistent with the protection of the public to allocate correctional resources in a way that maximized the return, as it were, on the correctional investment consistent with public protection.

Mr. Plecas: Senator Wallace is absolutely correct to be concerned about the matter of equality; and why on earth would we not ensure everyone is treated the same? Equally significant and more important is the issue of the full assessment provided currently to all other offenders collectively by the Parole Board of Canada and the Correctional Service of Canada. Why would we not expect that to happen in every single case?

Mr. Stewart: I have two points. The first is that what you propose would be fair if you could also guarantee that everyone could have their hearing when they are eligible. You cannot do that. It is not that people have intentionally frustrated that, but the system has simply been incapable of doing so. The Correctional Service of Canada quite rightly has been put under considerable pressure to be very careful to develop programs and expectations that a person must go through. At the same time, there are the expectations that they will be expeditious, and those two are in conflict. It will never be fair if those in particular with shorter sentences simply do not have access to a hearing. They are regularly being told to waive their rights to a hearing.

The problem would have been resolved if, instead of having divided the prison population according to violent and non-violent offences, they divided according to longer-term and shorter-term sentences. I think the minister made the point very well this morning. We assume that the distinction between violent and non-violent is a fair distinction, and it often is, but in fact there are always examples where it is not. There are property offenders who are very serious offenders who do a great deal of damage, and that has been part of the discussion.

Length of sentence is a much better determinant of the seriousness of crime than this crude approximation of violent or non-violent. We proposed a law that said there would be an expedited process for those who otherwise would not be able to apply and be heard when they are eligible. That would have been fair. For instance, if they distinguish between over five years and under five years, then everyone over five would in fact be reasonably expected to have a hearing on their eligibility date, while those under would not, unless there was some different measure. In the long run, we would then not have had the problem of this exceptional property offender, who has done so much damage, completely undermining the principle behind the legislation.

Mr. Waller: Briefly, I am upset by the way you have used the victim issues as justification because in the full parole hearing, the role of the victim is extraordinarily limited. As you have heard, the Corrections and Conditional Release Act does not make mention of victims, restitution and those sorts of things. Frankly, it is clear that if we were spending $100 million a year, which is what we are talking about, to bring Canadian policing up to standard, to pay for services, to pay for restitution, to pay for compensation and to give victims a real role around restitution, there is no doubt that victims overall, including the Earl Jones victims — I understand they will not necessarily agree with me in the abstract — would be a lot better off. That is what we need to look at. We should not go for yet more expenditures on expanding prisons when we are not doing the things that would prevent and are not doing the things that would provide basic service and respect for victims and help them to recover and repair the damage.

Senator Wallace: Professor Waller, to clarify my reference to victims, to which you took some exception — and you are certainly entitled to do that — I believe the reference I used is correct. In the APR situation, the victims are not able to appear before the board and present their side — that is the point I was making — whereas at non-APR they are. That is an important distinction and one that indicates inequity in how the two groups are treated. Beyond that, I would never suggest that the rights of victims under the current system are not on the table in one or other of the cases. That was certainly not the impression I intended to leave.

Mr. Waller: I was stating that the rights of victims in front of the parole board are limited, and they are focused on the emotional impact. The parole board is not looking at the sorts of things we would want to see if you look at it from a victim's perspective, like restitution. These are not generally processes that are constructive and lead to disclosure. You have heard that from previous witnesses today.

Senator Lang: I know we are getting late into the day here, so I will try to be brief. I thought it was interesting to hear that one of our prisons was half full — not that we necessarily want to fill it, but I would have thought someone would have told this committee that we had facilities out there. Everyone is talking about new facilities. That was news to me.

I found it interesting that you are forecasting less of a prison population due to the decline that we have been experiencing over the past number of years in part because the public does not bother reporting crimes, according to one of the witnesses. That goes back to what was said earlier today about the question of whether a good part of our population is losing confidence in the judicial system. I think that reflects that.

I want to go back to the initial information that the parole board receives for the purposes of making a decision. I want to direct my question to Mr. Plecas from British Columbia, who I know has had a fair amount of experience in this area.

In some cases, I do not think all the information is necessarily being put on the table because they do not have all the history of the offenders. First, they have been involved in a number of jurisdictions; second, they may have been involved in different areas as offenders so they are not seen as repeat offenders. Subsequently, they are seen as first- time offenders and are treated accordingly. At this stage, they are allowed to be considered for APR.

Mr. Plecas, because of your background, I would like to hear about your experience. I think it is important that we know whether we are getting all the information when decisions are being made.

Mr. Plecas: Unless I am reading it wrong, it is my understanding that it is a consideration of a first-time property offence to a federal institution. That would mean that people could enter into that and be eligible for accelerated parole, despite the fact that they would have a long history of recidivism as a property offender, which would not be considered. That long history of recidivism would escape the review process. We know that the people who constitute the greatest problem in terms of victimization are not those first-time victimizations but those people who are highly recidivistic. The review process would ensure that the board had an opportunity to consider that. Right now, that is not the case.

Regarding the whole matter of considering these new statistics that have just come out, which I have not seen, one of the things you will want to be mindful of in considering them is the follow-up period involved in determining what constitutes a recidivism. My guess is that CSC did not provide an analysis of those individuals who would have been eligible for accelerated release but did not take it. I think this is an important point because it could well be that — and, I am sure of it — there is a collection of people who do not apply for accelerated release and are not motivated to apply because they have to earn it. That group, as a group, will have a higher rate of recidivism.

With that aside, if you look at it strictly from a theoretical point of view, there is no reason on this earth to believe for a minute that people who are not subject to a review will have an equal rate of recidivism as someone who does have full exposure to a review. That is just not possible.

The Chair: I wish to put a quick supplementary to you, Professor Plecas, and then see if anyone else wants to comment on this particular issue.

We have discussed several times in this committee today — and you just raised it again — the concept of people who come in as first-time offenders in the federal system but who may be repeat offenders who never made it into the federal system before because they were never sentenced to two years or more. Have you seen any data to indicate how many people we would be talking about, these repeat offenders at the provincial level, who only now, for the first time, make it into the federal system? Is there such data?

Mr. Plecas: I think you could say it this simply: It would be rare to have an offender into the federal system who had not had prior convictions, period. It is common for offenders to have a fairly extensive criminal history — in fact it is more common on the side of property offenders than on the side of violent offenders. That is very obvious from looking at basically any collection of data from any institution. Part of the problem is that CSC, historically, has considered recidivism back to a federal institution or a violation of parole. Increasingly, it is taking longer to identify whether or not someone is a recidivist. Absolutely, it is a fact that most people who are sent to a federal institution are recidivist before they set foot there the first time, by some distance.

The Chair: Another person whose name has been mentioned many times today is Earl Jones. I am not aware that he was ever even up for unpaid parking tickets before he was caught on the big one. Mr. Stewart and Mr. Jackson? Please do keep it concise.

Mr. Stewart: It is important to understand that this provision around first-time non-violent penitentiary system only triggers the application; it does not trigger the decision. The decision does consider the person's total criminal background.

The Chair: Yes, if they have that information.

Mr. Stewart: Generally they have a criminal record. I think it would be rare that they would not have the criminal record history to see what that is. That is there.

We have to distinguish between a process that automatically starts the process and the criteria for what ends the process.

Senator Lang raised two other points I would like to address quickly. First, why do we have 50 per cent double- bunking while we have one institution that is not full? The reason for that is fairly simple. Institutions hold maximum security, or medium security, or women, or men, or the mentally ill, and so on. You cannot just distribute the population. You cannot take people out of a maximum-security men's prison and put them in a women's prison because there is a bed. Therefore, you can have overcrowding and some vacancy at the same time.

The other point is about not reporting. There are two groups of people who do not report. One group are often the victims of sexual offences, for all sorts of reasons, not the least of which is that often the offender was in their family. The vast majority did not report because the offence was too trivial. This is not a group we will see in federal penitentiaries.

Mr. Jackson: Offenders do not have to apply for accelerated parole. It is not a question of people deciding not to apply for it. It is automatically triggered by the review.

The other thing, Senator Lang, in terms of the totality of information, many first-time federal offenders do, as Professor Plecas rightly says, have sometimes long records in provincial institutions. All of that is reviewed by the federal parole officer in making an assessment to the parole board as to whether accelerated parole should be directed. Often the provincial record is a polycentric record, and if it includes, as in many cases, some break and enters, drug offences and assaults and indicates the capacity or demonstration of even a little bit of violence, that is exactly the kind of case that triggers a review by the parole board in which the full panoply of parole review takes place. To look at the question, you may be a first-time federal non-violent offender, but the question I have as a parole board member is whether I have reasonable grounds to believe that you will reoffend in a violent way. I will look at your provincial record for clues and indications that you may well do that, and then I will not in fact release you. That is a typical case of those who do not get APR because of the very concern you have, that there is a provincial record that is a red flag.

Mr. Plecas: The important point here is that while there is a consideration, if someone's prior record contains violence, someone could have 50 prior property offences and that would not trigger it.

[Translation]

Senator Carignan: I do not have any questions, but I would like to thank the members of our last panel who have truly set out the difference between the sentencing and the conditions to impose a sentence, as compared to conditional release, which are two distinct elements: sentencing and the sentencing imposition criteria, and the conditional release criteria. What we are trying to do here is apply the report of the independent committee on equity, tabled in 2007, on the responsibility of offenders and on a method that can be applied with regard to all the frustrations that this entails.

We have heard a lot about Earl Jones, we have even almost been accused of being ideological and not being in favour of rehabilitation. There is a section of the Criminal Code that has not been quoted with regard to sentencing, section 743.6, which grants judges the power to increase the time up to 50 per cent. This provision was passed under the Chrétien government. The principle by which the court must be guided, under section 743.6, is that it is understood that the paramount principles that are to guide the court under this section are denunciation and specific or general deterrents, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.

Hence, even the Chrétien government passed, with regard to sentencing, a measure to allow the possibility of setting out additional time, up to 50 per cent, but with regard to the sentence and not the conditional release.

I wanted to state that here, what we are seeking, is really the choice for Correctional Services Canada and you have made this clear in your comments, in particular Mr. Stewart.

Mr. Plecas, I just wanted to add one point. You implied that, in your experience, there are two methods, two systems, causing frustration, and that this undermined the objectives of rehabilitation. You seemed to sense this frustration from offenders. I would like you to talk more about your experiences in this regard.

[English]

Mr. Plecas: I can say two things regarding that. First, I was speaking to a parole board member who was telling me last week that he does not know of a parole board member who supports the notion of accelerated release because of the inability to have a full disclosure inquiry as to suitability for release.

As to my own experience as someone who speaks weekly to inmates regarding institutional discipline and where they are going in their future, one observation I have is that commonly offenders will say, "Look, I can do this standing on my head. I am out of here in a few months." This is a significant problem, particularly with people with short sentences: Why bother getting involved in anything? I am out of here quickly. There is no motivation to improve themselves because they will be out quickly anyway. Anything that moves us towards encouraging inmates towards self-improvement, to see it as something that is earned, seems to me to be what we ought to be doing. That is the vast majority of federal inmates I have contact with.

Mr. Stewart: I would be more concerned about the number of people who are not taking programs if it was not also true the vast majority of them are on long waiting lists and unable to get into them. Until the programs are available, screening out those who are motivated or not is more of an academic exercise than a practical one.

You want to think carefully about this notion of earned parole. I know that is an instinctively sensible idea, but parole is not granted to people as a reward. It is granted on the basis of risk. Some people can participate in programs very well, but they are still considered a risk. If you say it is earned parole, that applies to some kind of contract or agreement that "if you do these things, we will release you." In fact, that is not how it works. It never has, and I do not think it ever will. You will end up with a prison population that is very cynical about what that means. It will be seen as a disingenuous kind of proposal: If you do all these things, we might release you, but we might not, based on other factors. In the end what you want is a system based on risk, not based on reward.

Senator Hervieux-Payette: Professor Plecas, you talk about full assessment, and that is why you want to remove the one sixth. I hear Professor Jackson and Mr. Stewart saying that there is full assessment, that the process is very in- depth and that qualified people make an evaluation of the inmate, which is a process that requires a lot of evaluation and so on. It is not done just because one sixth has been arrived at and here you are, you are out.

We were told by Ms. Pate that the process is very structured. Please explain that to me.

My question is this: Instead of trying to catch everyone, including the Pope — because I subscribe to the expression of the Supreme Court, "staggering injustice," although I would say "monstrous result," which would be the result of that bill — if we were just addressing the question of serious white-collar crime and removing the one sixth and the retroactivity because we know it will not be accepted in a democratic system like ours, would you agree that we would catch the rich and the well-educated prisoners rather than the poor, uneducated ones who will fall into the net?

Personally, I have no problem addressing the question of the white-collar criminal who commits a serious crime — not $50, but a significant amount — and at the same time removing the retroactivity. I would like to have your comments on the full assessment. Could you clarify that for me? My second question was if the bill was addressing this question.

Mr. Jackson: In listening today and in reading all the documents before the Senate and the House of Commons, there seems to be a rare unanimity among all the interveners and people who have made presentations that serious large-scale fraud merits inclusion in the category of offenders who ought not to be eligible for accelerated parole.

It would be easy to add those offences to Schedule I, which already deals with offences involving violence. It includes some other offences, particularly involving children who might, on a lawyer's argument, be viewed as non- violent. However, Parliament rightly has had no truck with that argument and has said these are serious offences for which people ought not to be eligible because of the victimization involved.

I see no difficulty and every reason, in fact, for amending the legislation to make that kind of individual ineligible. It seems to me that is the area where everyone seems to agree. Of course, the retroactivity still remains an issue.

Mr. Plecas: The bottom line is that a group of offenders serving time in federal institutions are not exposed to a full assessment of their suitability for early release. In the course of that assessment normally, there are things that would be considered, such as their sense of culpability and their level of remorse.

I think Canadians would expect that we would, in every case, make a determination that public safety is absolutely not at risk and that we have given every consideration to the possibility of rehabilitation and that we have done this in an evidence-based, reasoned fashion.

All this new bill is asking us to do is to apply it equally across the board and have a full assessment. We all have said, and everyone knows, that Canada has an enviable track record of success with respect to conditional release. We all know how important and valuable it is. All this is saying is let us make sure we do it right and that we keep this high level of success that we have enjoyed increasingly for a decade.

Senator Hervieux-Payette: Do you mean for the one-sixth group or for the other group?

Mr. Plecas: I am not disagreeing with Professor Jackson's idea. I am thinking that if we were going full out, then why would we just reserve it for that group? There are others. There are small frauds and small fraudsters committing multiple frauds over and over again; they are highly recidivistic.

The simplest and most reasoned way is to say that it applies to everyone and that assessment will be made by a collection of people leading up to the parole board hearing about whether that person ought to be released at that point. If it turns out that that is at one sixth, then great.

Mr. Waller: I would agree with Professor Jackson regarding the course that will do the least damage. However, if we want to see public confidence in the system, you have to recommend more. It may not be in this proposed legislation, but it is very clear that restitution must be a focus both in the courts and in parole, particularly in these fraud cases.

It is clear to me that there are many reasons other than petty offending why people do not engage with the system. It is not just sexual offenders. It has to do with a system that does not take into account the needs of victims.

I would go along with Professor Jackson because there seems to be consensus among people I have not heard, but it also avoids spending more money on a system that does not provide what victims need. It is clear in international standards what Canada should be doing, and Canada is a long way behind on these. The reporting rates in this country are way lower than in the United States.

This sort of money, if you went with the bill as it is, could be used to prevent many things, including urban Aboriginal problems. It could do a lot to provide services and respect and restitution and compensation and a role for victims. We need to do a whole range of things.

Mr. Stewart: The notion of full assessment intuitively makes sense, but there are two problems with it. The first is that for the majority of people we are talking about with short sentences, by the time you do the full assessment, they will be out on statutory release anyway. The reality is it takes too long, particularly when you consider that the full assessment is also based on completion of programs, which many do not have access to in a timely way.

The second is that whether or not it is a good idea does not seem to make any difference to the outcome. The system that we have, which has this automatic triggering but then a review by a parole board, which actually has a higher rate of refusal of parole for the APR group than to the others, does seem to work. The assessments go faster; it seems to be just as effective as the more in-depth one.

It makes sense for those who are in the system for a long time. You are planning more than just release. You plan what programs they need while they are inside and so on.

To take a very long planning process for a person who will be walking out the door anyway does not accomplish anything. I would say that based on the results but also based on the practical situation, it just cannot be justified.

I think the problem is that it is based on violence and non-violence rather than on length of sentence. Length of sentence does cut across that distinction. Had an expedited process been put in place for those who otherwise would not have a hearing on their eligibility date, then I think it could have been justified as fairness and effectiveness without these outliers — these unusual circumstances that were not obviously thought about at the time the bill was written — discrediting the whole process unfairly.

The Chair: Thank you all very much. As you all know, this has been a very long day for us, and you have brought it to a thought-provoking conclusion. We are grateful to all of you, both for having hung in so late and for the substance of your contribution to our work.

Colleagues, we shall meet again in this room tomorrow morning at nine o'clock, at which time we shall conduct clause-by-clause consideration of Bill C-59.

(The committee adjourned.)