Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 14 - Evidence for February 24, 2012


OTTAWA, Friday, February 24, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 8:05 a.m. to give consideration to the bill.

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

[English]

The Chair: Good morning, colleagues and invited guests. I am John Wallace, a senator from New Brunswick, and I am chair of the Standing Senate Committee on Legal and Constitutional Affairs. During the past three weeks and throughout the entirety of this week we have been continuing our study of Bill C-10, which is entitled the safe streets and communities act. More particularly, beginning yesterday and continuing today, we have been focusing on Parts 2 and 3 of Bill C-10 which concern conditional sentencing, parole and pardons.

Before introducing our guests today, I will provide you with a brief overview of what Parts 2 and 3 involve. Parts 2 and 3 of Bill C-10 propose various amendments relating to sentencing and post-sentencing. Part 2 proposes to amend the Criminal Code to restrict the availability of conditional sentences for certain offences. It would eliminate the reference in the conditional sentencing part of the Criminal Code to serious personal injury offences. It would also restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences prosecuted by way of indictment for which the maximum term of imprisonment is 10 years.

Part 3 of Bill C-10 proposes amendments to the Corrections and Conditional Release Act to increase offender accountability and tighten the rules governing conditional release while promoting the interests and role of victims in the correctional process. Part 3 of Bill C-10 also proposes to amend the Criminal Records Act to substitute the term "record suspension" for the term "pardon." These proposed amendments extend the ineligibility periods for applications for a record of suspension to five years for all summary conviction offences and to ten years for all indictable offences. They would also result in those convicted of sexual offences against minors, with certain exceptions, and those who have been convicted of more than three indictable offences with a sentence of two or more years of imprisonment being ineligible for a record suspension.

I am very pleased to welcome our first panel of witnesses today. Rob Sampson is the former minister of correctional services for the Government of Ontario and past chair of the Correctional Service of Canada Review Panel.

Mr. Sampson and others on the panel wrote a report entitled A Roadmap in Strengthening Public Safety. This report was prepared in response to the mandate received from the federal government on April 20, 2007, to review the operations of Correctional Service Canada and many of the report's recommendations are contained within and form the basis of the provisions in Bill C-10.

We are also very pleased, and I would say honoured once again, to have Ms. Sharon Rosenfeldt with us. She has appeared before us on other occasions and has been extremely valuable to the work we do. Ms. Rosenfeldt was also a member of the Correctional Service of Canada Review Panel with Mr. Sampson. As committee members are well aware, Ms. Rosenfeldt is President of the Victims of Violence Canadian Centre for Missing Children.

Welcome to both of you; we are pleased you are here. We will start with opening statements. Ms. Rosenfeldt, you may proceed first.

Sharon Rosenfeldt, President, Victims of Violence Canadian Centre for Missing Children: Good morning, honourable senators. Thank you for inviting me on behalf of Victims of Violence to present our views on Bill C-10, the proposed safe streets and communities act. In short, we support all nine components of Bill C-10 because every component of this bill absolutely affects victims of crime in some form or another.

In fact, there is a widely held sentiment that the criminal justice process has left victims and their families behind and that our laws have failed to keep pace with the reality of serious crimes, including terrorism, organized drug crime, sex crimes, human trafficking and predatory pedophiles. It is not merely a sentiment, but in many cases a reality.

Victims of Violence is of the opinion that the reforms of Bill C-10 are not in response to a crime wave — although it is recognized that certain serious offences like drug crimes and child sexual exploitation offences are indeed increasing — but rather it is about rebalancing the criminal law in a way that increases accountability of offenders for the most serious and violent crimes from which victims suffer. These reforms are overdue, important and consistent with the expectations that many Canadians have — that individuals who commit serious crimes should not only be confined for the crimes but also assisted in rehabilitation to specifically deter them from reoffending.

There are many important issues in relation to this bill. It has been raised in relation to the content of the bill and the use of mandatory minimum penalties, and how this usage will result in more trials because accused would not want to plead guilty to a crime for which there is a mandatory minimum penalty. There is concern that provinces will not be able to afford the cost of an increased number of trials and, having said that, there are also the concerns that they may not then want to put money into victim services if cases are being tossed out because of lengthy delays. There are a few issues with these arguments.

First, the backlog that would occur from a higher number of trials is necessary in order to ensure that the offender is tried for the crime they committed and are not convicted of a lesser crime that does not truly reflect the crime they had allegedly committed. This would do much to increase victim satisfaction with the criminal justice system.

Second, as an example, there will be an increase in total to 16 offences related to child sexual exploitation in which mandatory minimum penalties would apply. The opportunity for an offender to plead guilty to an offence that did not carry a mandatory minimum penalty would be greatly reduced. I fail to see how one can argue against the introduction of mandatory minimum penalties in the case of sexual crimes involving children. One need only consider the case of a man convicted of sodomizing and molesting his stepdaughter for more than two years who only received a 23-month sentence because the judge said he spared her virginity. Is this justice?

In theory, the total number of offences in which these new penalties would apply is not great, as they only apply to serious and/or violent offences related to crimes against children, organized crime and violent acts committed by youths — crimes which only make up a small percentage of all crimes committed. For example, one in five police-reported crimes are considered violent, and three in ten instances of victimization reported by the 2009 General Social Survey were of a violent nature. These may represent only a small percentage of crimes, however, they represent the most grave and serious offences and as such should be sentenced accordingly.

The other components of this bill will also have little or no impact on backlog or court costs. Restricting the use of house arrest is a sentencing issue and does not affect the caseload of Crown prosecutors, although it will affect prison populations which the government is addressing by expanding prison facilities.

Increasing offender accountability does not put any burden on the courts, as these provisions affect actions after the offender has already been convicted and sentenced. In fact, the components of this part of the bill are, in our organization's experience, some of the things that truly matter to victims, such as enshrining victim participation in board hearings and keeping victims better informed about the behaviour and handling of offenders, or modernizing disciplinary sanctions and requiring offenders to complete a correctional plan.

The portion of the bill related to pardons, which will extend ineligibility periods or make some offenders completely ineligible, those convicted of sexual crimes against children or serious repeat offenders, as well as changing the term "pardon" to "record suspension," will also have no effect on court backlog or prison overcrowding as it will apply five or ten years after the offender has completed their sentence.

Other parts of the bill, such as those relating to the transfer of offenders and protecting vulnerable people from being trafficked, may actually decrease court backlog as these provisions are meant to keep offenders out of Canada and/or to prevent crimes from happening in our country. Thus, any backlog or extra stress placed on courts and Crown prosecutors will be represented by the most serious or violent cases which in my humble opinion are absolutely justified.

I understand that the bill will require more people to be put into prison for longer periods of time and as a result money will need to be spent to expand prison capacity, money that some have argued can be better spent elsewhere. However, this is a necessary cost for the protection of society and the detention of serious, repeat and/or violent offenders.

It is worrisome that so many people are focused on the cost of crime, particularly as it results to offenders and prisons without considering the costs that crime has on victims. The cost of violent and serious crime not only consists of tax payers' dollars, but also the loss of human life, loss of family, loss of law and order, and loss of faith in the criminal justice system.

In 2008 the Department of Justice Canada released a report which estimated the cost of crime. The report stated that the tangible costs, including police, court, corrections, health care, victim costs and cost of crime was approximately $31.4 billion, while the intangible pain and suffering and loss of life costs were over double that, at $68.2 billion.

When I hear opposition about the cost of the government's crime legislation, it upsets me greatly. As the mother of a murdered child, this is an issue that has directly affected me. If the criminal justice system had been tougher back then, like the federal government is now doing with the implementation of Bill C-10, my son Daryn would likely not have died. I believe we should have a stronger, more accountable justice system in Canada and not worry about the costs. How do you put a price tag on our pain as victims or on our children's lives?

I have more. A lot of it is a repetition of our definite support of every provision in relation to Bill C-10. There are some things I would like to mention, which maybe I can possibly add on when the questions come. One is I would like to speak about Aboriginal victims of crime and, to an extent, circle sentencing, restorative justice theory, and how some of it can now tie in with the mandatory minimum penalty of one year. It is a huge subject matter, it is complex, and I certainly do not have the answers, but I would like to address how our organization feels about Aboriginal victims of crime.

The Chair: Ms. Rosenfeldt, if you wish to present that now, please do so. It is a critically important issue.

Ms. Rosenfeldt: Thank you. I do not have anything written on the subject, but I will say that our organization has been in existence for 28 years now. Throughout the years we have had many occasions to work with various victims of crime, of which a number of them are Aboriginal. On a personal level, I have some understanding of some of the problems facing Aboriginal victims of crime. I am Aboriginal myself. My grandmother was First Nations, from a reservation in Saskatchewan. As children and as young people, we were out there all the time. We loved our reservation, although I was raised in the city, and that was due to my parents wanting, as they perceived, to give us a different way of life and education and such.

Prior to my son's murder, I was a substance abuse counsellor, drugs and alcohol. After my son was murdered, I was not able to return to that profession. I felt it was quite simple; I could hardly counsel myself, much less try to help other individuals, and that whole area is so important.

After seven years I was able to return, and I was offered a position as a substance abuse counsellor at an Aboriginal treatment centre called Poundmaker's Lodge, in Edmonton. That turned out to be one of the best decisions I made.

I wish all of you could see what some of these treatment centres do. The whole cultural background of them, with the smoking of the sweetgrass in the morning and the ceremonies, and everything is tied into drug and alcohol treatment. In that capacity, I think it would be safe to say that a number of us at that treatment centre, at that time — I do not know what the statistics are now — felt that probably about 85 to 90 per cent of the clients we were dealing with for substance abuse did have many other problems. Sexual assault was rampant, and there was the whole generational area of children being taken off reserves and being put into residential areas. We had a number of older offenders who talked about that quite a bit. The younger clients spoke more about their inability to deal with their victimization.

I understand and know that there has been a lot of talk about Aboriginal offenders. In terms of Canada's response to Aboriginal victims, we believe that a lot of the response has come from non-Aboriginal people who are presenting — and always have — to Aboriginal people, such as chiefs of reservations and/or Aboriginal organizations. There has been the Law Reform Commission, which looked into sentencing circles and restorative justice in relation to victims of crime.

I am here to say that it still is not working properly. I think the concept is good. Personally, I have no problem with the theory of restorative justice, because there are some victims who feel they would like to meet with the offender, for whatever reasons they have, which are valid reasons. We, as an organization, have never spoken against a restorative justice concept. We have never spoken against circle sentencing, because if it helps, then who are we to stand in the way?

However, my concerns are strictly with Aboriginal victims. I cannot speak for all of them, but the ones we have dealt with are traumatized because they are afraid to go into this circle. They are afraid of intimidation because of a lot of it is the hierarchy on the reservation as well. Some of the crimes have been committed by chiefs of organizations or relatives of the chief and/or band members. There is a lot of coercion in the name of restorative justice.

I cannot get into the legalities with regard to the proportionality part of the sentencing, which is 7.1, I believe. I will let others with further experience speak to that.

Further to that, what has been raised in relation to the one-year mandatory minimum sentencing is that it could have causes in relation to the Gladue case. However, with the Gladue case, the courts were looking at it really from offender types of circumstances. I am not saying I do not agree with Gladue. I believe it is being used more and more as an excuse in relation to Aboriginal offenders and not taking into consideration the Aboriginal victims. On that subject, if you have any questions, I would be happy to talk about it.

In closing, I want to tell you about our most recent case. It still tears my heart out. I spoke with an elder about it yesterday and asked if I should even talk about it. It is a case where the brother of a chief sexually abused a number of boys on the reservation. All parties lived on the reservation. A number of years went by. Three of the boys were friends and wanted to maybe do something about this, because they did not know if this was happening to other children. These boys were about 15, 16 and 17 at the time. They approached their families, and their families were devastated by the whole process. Again, you have to understand that on a reservation, it is really different, because they are relatives and friends. It really is different.

The families talked about it and they decided in support of their boys, so they went to the police. There was an investigation, charges were laid, and it did go through the court process. Because of a plea bargain — and in all likelihood because of Gladue — the offender was sentenced to nine months' conditional sentence, to be sent back to his reservation. It caused numerous problems in the community. There was ostracism. It was not good. It took its toll on the families and in particular the victims. They were really upset. They could not understand the house arrest. They said, "This cannot be. If this was the case, we would not have even come forward."

The third day after the sentencing, the father of one of the boys had a heart attack and died. The young victim took it upon himself to take the blame for that. He said it broke his father's heart, what was going on, what had happened, and that he should never have come forward. In the end, with all of that, a couple of years after that he started drinking, and he eventually died because of drink-related circumstances.

That is sad. Honestly, senators, what about the victims? That is only one case. I could go on and on and tell you more, but I will not. I just wanted to bring to your attention that for every crime there is a victim, and just to let you know that. Thank you very much.

The Chair: Thank you for that, Ms. Rosenfeldt.

Ms. Rosenfeldt: By the way, in relation to that, we do support the one-year mandatory minimum sentence.

The Chair: Right, and I am sure there will be questions as we go forward. Thank you so much.

Mr. Sampson.

Rob Sampson, Past Chair, Correctional Services of Canada Review Panel, as an individual: Thank you very much, senators, for inviting me here. I am so honoured to have had Ms. Rosenfeldt as a member of the panel that reviewed Corrections Canada. She has a lot to contribute, as did the other members of the panel.

I am here to speak to the panel report, so at times I will wear that hat, and at times I may take that hat off and speak to some items, which were not particularly in the report, that I will share with you from my background and experience in the business of corrections.

I want to thank the government on behalf of the panel for incorporating a number of our recommendations from the report into Bill C-10. When we tabled that report, we suggested that it was not to be looked at as a buffet for items to be selected from here and there to be included in an implementation plan, but we believed it needed to be included in a wholesome way. I believe the majority of the recommendations are either captured in this bill, captured in government policy now or components of implementation plans are being put forward by Corrections Canada.

We do support Bill C-10, and I am sure the panel supports Bill C-10. I have spoken to Ms. Rosenfeldt. I happened to speak with Chief Clarence Louie the other day on another matter and probed him on this. We are grateful that the work of the panel did not sit on the shelf and was addressed seriously.

I am not speaking from any particular notes, but I did provide some information to the clerk. I do not know whether she has copies of that. I think you have my original copy, if you do not mind returning them to me. The older we get, the less we remember.

There are two things I want to talk about. First, the thrust, if you will, of our recommendation was giving Corrections Canada the tools they need to try to help individuals who are sentenced to their care turn their lives around. I have visited a number of institutions. I have probably been in and out of more institutions in North America and Europe than I would say most individuals have, with the exception of maybe Don Head who runs the institutions.

I happened to be visiting a facility in the U.S. of all places that was charged with the responsibility of effectively managing young Black inmates who had been sentenced to more than two years. I asked the warden, "What is your job, as you see it?" He said, "My job is to give these guys the second chance they never had." I asked, "Well, what happens if they are looking for a third or a fourth chance?" He said, "They can wait in line behind the guys that have not had their second chance yet, but my job is to give them the second chance they never had because they are eventually going to get out." The majority of individuals sentenced to federal institutions in Canada will leave institutional care at some time.

In this warden's view, his job was to get them ready so that when they returned to society, they would not end up returning back to his or anybody else's institution. His focuses were primarily skills, job training and readiness for society. He was also providing addictions counselling and behavioural counselling, but his primary concern was making sure these young Black men had a skill when they left. That particular institution's recidivism rates were in the low teens, so he was not completely successful, and that frustrated him. However, his program was successful. This is a U.S. institution, senators.

I took that information and tried to implement components of it when I was a corrections minister in Ontario. It is the thrust, if you look at our report, the key components of our report: job readiness, skills training and education and work readiness for individuals leaving institutions, whether they are male, female, Aboriginal or non-Aboriginal.

The information I have circulated to you are excerpts from three reports out of many reports that corrections does internally. Corrections Canada does a lot of good internal research. Much of it does not go public, for reasons I have never quite understood, but they do a lot of good research. The thrust of this research is an analysis of the offender base and discussions around skill and job training readiness.

The surprising information that came to us — and it is still current information because this is a current report — is that over 50 per cent of the people attending our institutions have an average sentence of three years, so they would serve 24 months at most in the care of the institution. What is the profile of these people coming in? By far, the majority barely had Grade 8 educations, the majority have never held a job prior to being sentenced, effectively making them unemployable and having no trade skills.

Therefore, our charge to Corrections Canada on the theme of getting inmates ready to return to society is that in 18 months, you will take that individual and prepare them for a return where the requirements for skills to hold a job are going up and the trend within the institution is going down. The gap is getting very wide. I would put it to you, senators, that what these individuals need is more time under the care and custody of Corrections Canada providing them this support so that when they are ready to leave, they have the skills and basic education and they know that when the job starts at 8 o'clock, you show up at 8 o'clock, not at 8:15 or 9:15 or whenever you care to show up, that they are ready to hold a job.

My discussion with Chief Clarence Louie a couple of days ago was exactly that. In his particular band, he has been awarded the ability to work with the province to build an institution on native reserve. This is a huge opportunity for him to work with the province and to get it right on the provincial side so that the Aboriginal offenders who come through those institutions when they leave are ready to leave, and they do not leave until they are ready to leave. I think it is a terrible injustice to inmates to send them back into society with this huge gap between what is required to hold down a job and what they actually have.

In an average of 18 months to take somebody with barely a Grade 8 education, who has never worked, never held a job, does not know how to hold a job, does not know where a job is, does not have a résumé, can barely write and is drug addicted and all the other mental challenges associated with that, as I said to Don Head privately, I am not surprised your recidivism rates are so low. You do not have these people long enough to help them.

Therefore, the thrust of the panel report is that we need to make sure we focus very much on these core skills. Yes, we need to deal with drug addiction issues. Yes, we need to deal with anger management issues. Yes, we need to deal with all the other items, but if the guy cannot hold a job, he is going to go back to the only job he thought he was able to earn money at, and that is crime. Unfortunately, I think our recidivism rates are showing that.

I would urge senators here to consider that very carefully, that we are charging Corrections Canada to turn these people's lives around, as that warden said to me was his responsibility. We have to give him the time, the resources and the tools to do that. Part of the tools are in Bill C-10, making sure that the nature of the hold is appropriate for the individual, not the least secure but appropriate for the individual because some of them need a different type of management than others.

On that, senators, I will stop because I know you need to ask some questions and our time is short. I certainly appreciate the time and the attention you have put towards this particular bill. I do not follow bills through the Senate very often. I am now gainfully employed in the private sector, at least I was an hour and a half ago. However, I do appreciate the time and effort you are putting into this bill. It is critical, in my view, to give the back end of the system, as I hate to call it, the tools and the resources they need to make sure that we actually give these individuals the second chance that they never really had.

The Chair: Thank you, Mr. Sampson. Those were two excellent opening statements, and I am sure colleagues would agree.

We will begin with questions, and I will start with our deputy chair, Senator Fraser.

Senator Fraser: Thank you very much, chair, and thank you both very much for being here. It is important for us to hear from you.

It is not often that a commission of inquiry, whether it is called a panel or whatever, can be so clearly assured that its recommendations have been adopted by the government. I mean, I was going through your report. Chunks of it appear verbatim in this bill, and Mr. Head had confirmed to us more than once yesterday, I think, that your road map is his road map, basically.

However, I do not want to put words in his mouth. He did not say this. I am talking now about the impression that I have gathered not just in hearings on this bill but also increasingly over time. It seems to me that the federal system — we have no experience with provincial systems on this committee — is just being swamped. As the population grows, no matter what you do, you end up just warehousing people. They are all double bunked. In some places, they are sleeping in gyms. They are sleeping two or three people in accommodation that was designed for one. Some of them are sleeping on the floor. It is true that the correctional services have had significant increases in their budget, big chunks of which seem to be going to prison guards rather than to the kind of overhaul that your report was envisaging.

I assume you have been trying to keep a fairly close eye on the way things are playing out. I have the impression that no matter what philosophy one has about reform of the correctional service at the moment, they are just paddling furiously not to go over the edge of the waterfall. Am I wrong? Have you got a more optimistic view?

Mr. Sampson: I am an optimist to begin with, senator, so, yes, I do.

As compared to other institutions I have seen, Corrections Canada is by far the best. Now, I am not a believer that you should rest on your laurels, and so our report challenges the correction system to be better, and that requires a change in the way you manage the system, and I have had that discussion with Don Head about where the resources go. In that particular institution I talked to where the young males, the Black males who were housed, the people delivering the programs were also the guards. It was not that they went off to another part of the building where there were program people. The guards were actually also program people, and the dynamic that they achieved out of that was huge because the individuals who were responsible for the care and custody of the institution knew a lot about these individuals, and so when they went to their trade program, where custody and security needed to be maintained, it was the same person delivering the training that was making sure they were not beating the other guy up in their cell when they got back to the cell range. That is a dynamic that I think Corrections Canada needs to work on. It was not particularly specifically addressed in the report, but that helps the management of the system, and I think that would help the cost side, too, because then you do not have duplication in the system. You have institutions now were sections of a range will go off to programming, but the correctional staff there, the guards, are still there on duty because one or two guys may be sick or not participating in that programming. That is not a very effective use of resources. The institutions that work best, and I think one of the ones Senator Runciman may be well aware of, are the mental health institution where the people providing security are also the ones doing the programming.

Secondly, overcrowding can be helped if you are a little better in doing your job of correcting. The more you correct, the less are coming back in the second and third time around. Your success rate in corrections will actually lower the amount of people coming into the institution because they are not coming back for their second, third, fourth, fifth, sixth or whatever time back in the institution.

To a large degree, if the system were to set correctional targets, recidivism targets, and the government would force them to manage those down, as they do in the U.K., by the way, then you will see an impact, I believe, in the lowering of the offender population because the guy that left today is not coming back tomorrow. He is up at the oil patch making $100,000 as a skilled trade oil patch guy.

Senator Fraser: Are we not doing that now?

Mr. Sampson: Not enough, senator, for many reasons. None of the institutions we have today are designed for this type of programming. Look at Kingston Pen. How could you run skilled, trained programming in Kingston Pen? I was born and raised two blocks from Kingston Pen. I know all about it. I was there when the tanks rolled down the street the day they had the riot. My father was a Crown attorney at that time. I know a little bit about Kingston Pen, Joyceville and Millhaven. None of them were designed to manage these programs. They were designed and built before I was born, senator, and things change; times change. The demands of society have changed. As I said earlier, the skill required to hold a job these days is going up and up. The gap, I am afraid, between what the inmates have when they leave, let alone what they had when they came in, is widening and widening, so we need to do a better job of what we are doing now.

Senator Fraser: Okay, thank you.

The Chair: I have a supplementary question following up on Senator Fraser's questions. Mr. Sampson, your report seems to take a very principled position as to what you believe is right, that providing the skills training and the education is the way of the future, the way to turn around the lives of offenders and get them on the right track.

Senator Fraser brings up the point that resources are a problem. It is great to aspire to that, but there are inadequate resources to do that.

Going forward, then, do we restrict ourselves to the dollars and cents that are available and make our programs and our directives fit the dollars, or do we continue to push ahead, maintain the principle of doing what is right, force and pressure the system, and that if it is proven to be right, it will attract the dollars? Do we make our programs fit the dollars, or do we stick to the principles and force the system to provide the dollars?

Mr. Sampson: I think the reality that we all face, whether it is running governments or our own personal finances, is that there is never enough money in the bank at the end of the month for what we would like to do. That problem will never get resolved, and it gets frustrated even more when we spend more than we should be spending so the pressures are to reduce what you spend. I do not think there will ever be a time when Corrections Canada is flush with cash and does not know what to do with it. The answer, I think, is to force it: Here is your budget; here are the challenges; here is your road map.

As imperfect or perfect as it may be, I will tell you right now that I suspect there are some mistakes in this report. I am a perfectionist, but I do not believe I ever achieve that, nor, I think, did the panel, but we did our best based upon the resources that we had. I think Corrections Canada's job is now to do the same thing. Here are the resources. If you need to change the way in which you manage institutions, get on with it and do it.

The Chair: Do it right.

Senator Chaput: I am really intrigued by this plan. I find it very interesting. How will it be done and what can be done at the present time? You have said that some of the tools needed are in Bill C-10. What are the tools needed that are in this bill that we have in front of us, if you can give me examples?

Mr. Sampson: I actually went through the summary of that bill. I have annotations as to where I think it is the right thing to do. I would have to look through them and make sure I did not say anything I should not have said.

Clause 54 of the bill is notations of the nature and gravity of the offence and the degree of the responsibility of the offender to be considered. The concept of correctional plans is now in the statute; it is not in the regulations. It is huge. I understand that difference as a past legislator. It is now in the statute.

Senator, the obligation to help offenders turn their lives around requires two parties for this dance — the offender to engage and society to provide the tools and resources. What is in the bill, scattered through, are both of those components in the statute as opposed to in regulations or as opposed to in some Correctional Services guideline.

Senator Chaput: Could you go ahead with this plan if you did not have Bill C-10? Could you still go ahead with this kind of plan?

Mr. Sampson: No, because there are components in here that give the tool to Corrections Canada to manage the inmate in accordance with his or her needs for reform and correction.

It is managing the offender using, instead of the least restrictive sentencing component or management component, the component appropriate for the offender's needs and his correctional plan. That mean if the guy needs to be able to go to a job training centre, he needs to have that security level to do that, if that is what his need is.

The Chair: We did start late. If you are looking at the scheduled time, I will do everything we possibly can to fit your questions in. This is so important.

Senator Runciman: I will encourage Mr. Sampson to be concise in his responses so we can get as many questions in as possible.

You were talking about inadequate time to prepare prisoners to be productive citizens. It has been some time since I looked at the report. Did you recommend with respect to mandatory release that it not be mandatory, that it be based on just what you were talking about, the ability to become a productive citizen? Is that kind of assessment built into the recommendations you are talking about here?

Mr. Sampson: You wanted me to be precise. Yes.

Senator Runciman: Okay, that is good. We have had a number of witnesses now who are not supporters of the legislation. One of the criticisms is that they continue to support using least restrictive measures. I think the witnesses following you today oppose a new principle that says measures are limited to what is necessary and proportionate to obtain the purposes of this act. Could you tell us what this change means in practical terms?

Mr. Sampson: It means that the security level that the inmate would be held to under the proposed legislation would be the security level that is appropriate to match with the correctional plan that has been established to help them get better and change their life around so when they get back to society they are ready to live a normal life and live in society. It does not mean it is a statutory-driven security level. It is the security level that is appropriate for the individual.

Instead of trying to put everyone in the same box, you establish a security level that is appropriate for the individual. Yours, senator, might be different from mine. That is the reality.

It does not necessarily suggest that this appropriate level is not the minimum level, and it may well be. In some cases it might not be, because that is what the institution and the people we charge to turn these people's lives around have determined is the appropriate level.

Senator Runciman: I want to take the opportunity to chat with you about the mental health issue. We have heard that from a range of witnesses. Police and any number of witnesses who have appeared before us have expressed this as a concern with respect to the number of people suffering from mental illness in the corrections system in Canada.

We had Mr. Head here yesterday. I have expressed my frustration about the glacial progress here with respect to addressing this issue. The Ashley Smith inquest, which I think you are familiar with, is coming up later this year, which I think will draw very critical attention to what is going on or not going on in the federal corrections system in terms of appropriate treatment.

I am obviously attracted to the concept of alternative service delivery. We have seen it working. Dr. Bradford was here yesterday talking about reduction of recidivism rates of 40 to 46 per cent. I talked about ratios in the federal system and in the mental health section, 80 per cent corrections officers to 20 per cent health care, if they can attract the health care folks. That is an ongoing problem. That is just the opposite of what is going on at the St. Lawrence Valley Correctional and Treatment Centre, where you have 80 to 85 per cent health care and a great success rate. What is your view with respect to not just considering but actively moving in the direction of alternative service delivery in the federal system?

Mr. Sampson: Senator, we should charge those who are best capable of getting the results the responsibility of doing that, and whether that is a private deliverer of services or the public service or both of them competing together or against each other, whoever gets the best results I would say should be the one who is charged to do that. I am aware of Dr. Bradford's operation because that is actually something that was started under your watch when you were Corrections Minister in Ontario, and I had the responsibility of following in your large footsteps and shoes. He has been tremendously successful because he focuses on getting these individuals, as he would say, in a non-technical and clinical language, stabilized and ready to re-enter society. That is his challenge. His delivery model is to have fewer guys with keys around their belt and more people involved in programming because you get that daily contact with the individual that does not break when he leaves the cell and goes to the programming area.

To the question you asked me earlier, that is a good model as to how you keep the costs down and get more money into the programming side.

Senator Fraser: I have a supplementary to the question. These people are all unionized. Will you not have to reopen your collective agreements on a massive scale to achieve that?

Mr. Sampson: Senator, I am not managing the system. Whatever needs to be done to do that should be done, and if it means speaking to a collective agreement, then that is what you have to do. Get on with it.

Senator Runciman: I have a quick question for Ms. Rosenfeldt. Welcome again to the committee. As you know, Bill C- 10 will prevent offenders from cancelling their parole hearings within 14 days of the hearing date. Could you speak to the merits of that amendment?

Ms. Rosenfeldt: Thank you, Senator Runciman. I believe that was in part of my presentation that I did not finish because I wanted to touch base on the Aboriginal.

Senator Runciman: What are your own experiences with it?

Ms. Rosenfeldt: My experiences have been, like any other victim of crime or victim organization would tell you, that it is very, very hurtful; it is very, very costly. In the last few years, the good thing that has happened is that Corrections Canada now does pay for victims of crime to come to the institution where the parole board is holding the hearing. That was a good move. Prior to that, it was very difficult for victims because they bore the expenses themselves, and having a parole hearing cancelled when a victim has gotten their head into attending this hearing, whether it is for a sexual assault or a homicide, it really does not matter. It is almost as traumatizing as going through the court. However, it is very important for the victim to always be a part of the proceedings, no matter how difficult it is. I hope that answers some questions of, well, then, why do victims want to attend these hearings if it is that difficult? It is just something that victims of crime feel when they have been personally violated. They have to be a part of the proceeding if their loved one has been murdered and they can no longer be there to represent themselves and the family steps in. It is very important. To have it cancelled, when you are all ready to go, is just really wrong.

As you know, senators, and I will make an accusation here, there have been hearings cancelled. They know they are not going to get parole. It is their right to have this hearing, and it has been cancelled, just to make it difficult.

Another area that is really difficult there too is in translation. Some want to have their hearing strictly in French when the victim's family cannot speak French. I do not know where that issue is, but it can be very cumbersome.

I take too long. Sorry about that.

Senator Cowan: Welcome, Ms. Rosenfeldt and Mr. Sampson. Thank you for your work.

Listening to your evidence, Mr. Sampson, it seems sensible to me that trying to rehabilitate offenders and provide them with training and ready them for employment opportunities afterwards is not just about being nice to the offender. It is really for the protection of society, because they are going to get out. If they get out and have no alternative in their mind but to reoffend, then we have not accomplished what we hoped. I appreciate and understand that point you make.

I am troubled by the idea that we would simply say, "Let us leave people in for longer because that will give the correctional authorities a greater opportunity either to give them a second chance or turn these people around." I think the evidence we have had so far is that because of overcrowding and lack of resources, they have not been as successful as we would like them to be in doing exactly what you would want them to do.

You said that the institutions are not designed presently to do this kind of thing. We are clearly not going to be in an environment where we can tear down existing institutions such as the one you grew up next to and build whole new institutions. That is just not possible. The government is planning to expand existing institutions and renovate them, but it is unlikely to turn them into the kind of institutions that you would like to see to accomplish the purpose that you want accomplished.

Are you or are we unrealistically expecting our correctional institutions to do what you suggest? Is there any reasonable prospect that the correctional institutions can achieve the laudable purpose that you outline?

Mr. Sampson: I would say we have set expectations currently for Corrections Canada that we want them to lower recidivism rates; yet, you saw the profiles of the individuals who come in the front door. In 18 months, that is a little difficult to do on average.

Senator Cowan: Is the answer to give the institutions more time to work with the inmates, or is it to refocus the resources that we have not only in the correctional institutions, in the correctional budget, but in other budgets, whether federal or provincial, such as health and education and skills training? I am wondering whether these institutions are the right vehicle and if it is reasonable to expect that they would become the right vehicle to do what I am sure everybody agrees is in everyone's interests to have done.

Mr. Sampson: I think the answer is yes to both. It is reasonable to have a goal that the actual institution itself needs to change what it is doing and needs to be maybe a different model and different size and use different tools within that toolbox.

By the way, the report did talk about the continuing of corrections in the community. When I say "under the supervision of Corrections Canada," it is within the institutional walls, and we have a huge amount of the report that talked about stuff that is outside of the walls, I think was the language used in the report, but that is still under the control and care and custody of Corrections Canada. You can do all the skill training you want within the walls of the institutions, but you have to ensure that when the guy is out and going up to his job as a carpenter or a plumber or an electrician or whatever, that he shows up at eight or nine when he is supposed to. They are still in supervision of that. Money needs to be spent within the community corrections as well. The report is quite clear. This is not a "lock them up and throw away the key" report; this is a "do what you can to turn these lives around" report, inside the walls and outside the walls. In short, to answer your question, the answer is yes.

Senator Cowan: Ms. Rosenfeldt, I would ask you to explain a sentence in your statement where you were talking about responding to the accusation that this will create further backlogs in the system. You say that the backlog that would incur from a higher number of trials is necessary in order to ensure that the offender is tried for the crime that they committed and are not convicted of a lesser one that does not truly reflect the crime that they allegedly committed. I do not understand that statement.

Ms. Rosenfeldt: What I was trying to say in that statement is basically that if there is a backlog, then somehow government or the federal government will have to deal with it. What I am saying is to actually put offenders out when they should be actually going through the court system and be tried for the crimes they have committed rather than giving the option of conditional sentencing and/or sentencing circles or things like that, if it creates a backlog in this transition, then it will have to be dealt with.

My understanding is that, in this piece of legislation, a few things will be legislated right away, but there will not be any final decisions made on certain aspects without continuing to consult with the provinces.

Senator Cowan: Where is that?

The Chair: Senator, we will have to move on.

Senator Cowan: What aspects? That is quite important, and it is new to me.

The Chair: Yes. It is all important.

Ms. Rosenfeldt, could you address that very quickly?

Ms. Rosenfeldt: My understanding is that it is in the bill. What is also in the bill is that this will be fully reviewed. Bill C-10 will be reviewed in five years. Part of it will be reviewed in five years.

Senator Cowan: Second round.

The Chair: I do not think here we are to argue with the witnesses. I realize you are trying to draw a point out.

Senator Lang: I would like to thank the witnesses for getting up early this morning and coming out. I would like to direct a question to Ms. Rosenfeldt. I want to say it is nice to see you here again, and I think you do bring a very common sense message to this table in respect to what you yourself personally have experienced and also the work you have done over the last couple of decades.

I was quite surprised yesterday to have the Canadian Association of Elizabeth Fry Societies before us last night being very clear and unequivocal that they did not support the mandatory minimum sentences. When the question was put to them in respect to specifically the mandatory minimum sentences for the sexual offences, for example, one year for sexual assault, if proven, and you can go through the list of the minimums, they did not support it. The question was then put to the representative as to whether or not their organization fully understood the legislation and had they polled their membership, and they said they had sent out some emails.

You have had much experience with victims over the last number of years. Do you believe that if these victims fully understood this legislation, for example, that it provides for a mandatory one-year sentence for sexual assault, they would consider this to be a step forward in protecting victims and society as a whole?

Ms. Rosenfeldt: I certainly cannot speak on behalf of Elizabeth Fry, but I will try to explain briefly what victims want. There are three areas. The first is the punitive sanction that is provided for in legislation. Second, victims want and need to be part of the process, that is, to be helped by police, helped with death notifications, courts, sentencing, and also helped by the Correctional Service of Canada. Victims have always felt that they were not given the respect of being part of that process. The third area is actual victim services. These areas are all interlinked.

When victims say there is no justice, they are referring to sentencing. It is very upsetting to them not to be involved with the criminal justice system and not to be respected by the police and Crown.

Some say that victims are just angry and vengeful, that they just need counselling to enable them to deal with the death of their loved one and the loss of their dignity from being a victim. Many victims need to see what they believe is justice. I think that a one-year mandatory minimum sentence is too light, but it is a step in the right direction for certain crimes. Many victims require punitive justice. To tell us to go into a corner and have the government pay for counselling is not good enough.

Senator Lang: Perhaps my question was not clear. At the end of your answer you touched on mandatory minimum sentences for sexual offences that are not presently in the legislation. We have heard testimony over the last number of days that the norm now is conditional sentences for sexual offences. That is unlike the story that you told us of the three young boys and the consequences in that small community.

I was surprised that victim services organizations would not support that type of legislation in view of the fact that it removes such individuals from the community, at least for a period of time. Would having these people removed from the community for at least a period of time give some comfort to the victims you have dealt with?

Ms. Rosenfeldt: Victims and victim organizations definitely would support it. However, I cannot speak for Elizabeth Fry.

The justice system is very complex and is made up of many different constituencies. Elizabeth Fry mentioned that it is sad that we are getting into an "us versus them" mentality, but that is the reality. For every argument on how to fix the system to help the incarcerated there is an argument on the other side. Unfortunately it is sort of an "us versus them" mentality, but there are a number of things we do agree on. However, mandatory minimums are difficult for offender organizations because, to put it bluntly, I believe that they support the offender.

Having said that, putting them into the community is a cheap form of justice for those who have hurt someone through sexual assault, domestic violence or what have you.

I have seen many who advocate GTO — "get them out." How do we deal with this prison system? As Mr. Sampson said, we have given our version of how to deal with the system but the justice system, and in particular the correctional system, has been flawed for many years. From our perspective, these flaws are paid for by victims, and I do not mean monetarily. Someone has to pay the price.

If the price in dollars has to be paid for mental health or whatever, pay it. I will be glad to put my tax dollars into that, because I do not want others to be hurt. We know that there will always be crime and that people will be hurt, but what is the best method for dealing with criminals? It is not throwing letting them out on parole; it is not allowing them to serve sentences in the community for crimes of manslaughter and severe sexual assault or 16 counts of domestic violence against one person.

That is what victims say is wrong. We get tagged with being angry and vengeful, but it is not true. We would be very happy if offenders could be fixed so they would not hurt someone again.

I was a board member of Circles of Support and Accountability, which works with sex offenders in the community after release. I support helping sex offenders in order to stop them from hurting someone else. For seven years I have been a member of the Citizen's Advisory Council for the Ottawa parole office. I want to let the other side know that we are not angry, vengeful people, but there must be protection of society.

[Translation]

Senator Chaput: My question is for Ms. Rosenfeldt. You are here today on behalf of victims. You are one yourself, and I am sorry for that. I want to tell you what concerns me.

Ms. Rosenfeldt, I would like to touch on the issue of Aboriginal peoples. We have heard from a number of witnesses and seen a lot of literature indicating that Bill C-10 will have a disproportionate impact on Aboriginal peoples. In a moment, I will shift the focus to Aboriginal women specifically. The witnesses told us that Bill C-10 did not remedy their unique situation. Aboriginals make up 4 per cent of Canada's population, but 20 per cent of the federal prison population.

The situation facing Aboriginal women concerns me. I have a question about that. The number of Aboriginal inmates in prisons has gone up nearly 90 per cent over the past 10 years. In a maximum security facility, 50 per cent of the female population is made up of Aboriginals. As a member of this committee and as a parliamentarian, I have a moral obligation to raise the issue and address it.

Ms. Rosenfeldt, drawing on your experience and considerable insight, could you give us a concrete example of how we could approach the issue of Aboriginal offenders?

[English]

Ms. Rosenfeldt: That is difficult because I do not work with Aboriginal offenders, but I do know that when I was a substance abuse counsellor we did have offender clients coming in from prison institutions to do their temporary absences and take treatment. It is a question of what comes first, the chicken or the egg, so to speak, because we also know that a number of these people have been sexually abused and they have been raised in different circumstances from other Canadians.

I really do not have an answer on Aboriginal offenders, other than to continue saying that I know a number of them have been victims and we do have to put more resources into mental health. From my understanding, many Aboriginal offenders come in with mental health issues. It is not an easy task and Elizabeth Fry would certainly concur with that, because these women usually have numerous children and it is a very difficult situation that I cannot address.

[Translation]

Senator Boisvenu: I want to thank the witnesses for being here. My question is for Mr. Sampson. I commend you for your 2007 report. I read it, I studied it, I dissected it and I did my analysis. Then I toured prisons across Quebec, and I used your document as a benchmark when trying to determine whether we had gained or lost ground since 2007.

I was rather disappointed to see that there had been little progress despite the minister's desire to make changes. I saw empty gyms and classrooms, people on the telephone sitting in hallways. I did not see many inmates participating in so-called educational or training activities. I saw workshops where inmates who showed up at 10 a.m. or 11 a.m. enjoyed the same benefits as inmates who left their cell at 8 a.m. to work. I did not see a place where there was much discipline or where those in charge actually had control.

I saw a place where the criminals were in charge. I realized the prison system did more spending than actual investing. The real challenge when it comes to Canada's prison system is transforming it from a system that spends into a system that invests.

When you came to that entirely realistic and valuable realization, how did you see Bill C-10 — which is by no means a cure-all; I do not think it is going to work any miracles — having the minimum acceptable impact to kick-start a genuine revolution in Canada's prison system, particularly when it comes to holding criminals accountable for turning their lives around and embarking on a true rehabilitative path?

[English]

Mr. Sampson: Senator, allow me to respond in English; I apologize, my French is not all that good.

The report is not mine, it is the panel's report, and I will pass your favourable comments on to the rest of the panel members. We appreciate that.

The system is a big ship to turn around. I would like to snap my fingers and hope that what is in that report could be instituted tomorrow. A lot of it cannot be instituted tomorrow because of institutional buildings, institutional inertia and unfortunately it takes time.

Bill C-10 will provide more tools in the tool box. Then I would argue, it is up to panels and senators like yourselves and members of Parliament to continue to pressure the Correctional Service of Canada to do that. Part of my criticism of my ministry, when I became the Minister of Corrections, was that my title was the Minister of Corrections and on the first day that you become a minister, as Senator Runciman will know, you get a stack of briefing books and you have a briefing session. I pushed those briefing documents aside and asked, "How much correcting do we do?" I could not get an answer.

If objectives are not set and if the objectives are not meaningful, measurable and if your success is not measured against set objectives, then you will never have success and you will never get to where you want to go.

We need to challenge the Correctional Service of Canada to set objectives around recidivism, around inmate participation and programs and, even more to the report, success around participation. There is no use having a guy sitting in a class and checking the box and saying that is success. The measure of success is whether he got anything out of it. If not, either the program is wrong for him or he was wrong for the program.

We need to set objectives and in institutions that are not quite into it, and where inertia has not quite turned around yet, or the culture has not changed, there needs to be a culture change. The Correctional Service of Canada needs to be exactly what the report talks about, senator, and what you just mentioned. Unfortunately, that will take time.

We need to talk publicly about the goals and objectives around corrections and some of the things that are in this particular report, and we must be prepared to accept that every once in a while we will not quite get there. That is not failure; that just means you need to recast our objectives or re-engage.

With this tool box in Bill C-10, I am hoping the complaint will not be from the Correctional Service of Canada that they do not have the tools anymore. They have them, now they should get on with it and do the job.

[Translation]

Senator Boisvenu: Mr. Sampson, if the Bill C-10 toolbox were missing a tool that could do more, what would you say it was?

[English]

Mr. Sampson: To the answer I just gave you, would it not be nice if the legislation mandated the setting of performance objectives? Can you imagine that, legislation saying: I expect you to have recidivism rates of "X," or set the framework for that and have regulations cast that? However, nowhere in this document does it ever talk about what success are you trying to achieve, and what is the end result of this. I am now in the process of trying to run a business, and every day I have a performance objective. My owners tell me this is how much I need to make. That is my performance objective. "Mr. Sampson, if you do not do that, then next day you will not be around to do that."

I think we need to set objectives. Where those might be difficult and cumbersome in a statute, it is probably doable in regulations, but maybe the statute should set the framework for that. The U.K. has performance objectives for all their prisons, a number of them, including recidivism, and the guy or gal running the institution speaks to those performance objectives every year. Recidivism rates are one of them, assaults on inmates, and there are others.

Senator Frum: Back to the testimony about the Elizabeth Fry Society — this is a question for both of you — we heard the assertion that because of the increased mandatory minimums, there will be increased incarceration as a result of this bill, and that that incarceration will be experienced disproportionately by Aboriginal women. I would like each of you to respond to that assertion, again in the context of knowing that all the mandatory minimums have to do with either sex crimes against children or drug trafficking.

Ms. Rosenfeldt: I am sorry. Can you repeat?

Senator Frum: Sure. I wanted you to respond to the assertion that the brunt of this bill will be felt disproportionately by Aboriginal women, that they will be the ones who will see a disproportionate amount of incarceration as a result of mandatory minimums to do with sex crimes and drug trafficking. Can you respond to that?

Mr. Sampson: I am not sure that the disproportionate number of Aboriginal women is what is driving that number. Are non-Aboriginal women getting other options, other than incarceration, that the Aboriginal women are not getting? I do not know. I do not know what the research is around that. To look at the raw number, you need to peel back the onion a bit and find out what is driving it.

These are serious offences. They are not insignificant offences, and they indicate a serious behavioural problem that needs to be addressed. The program in Senator Runciman's riding is dealing effectively with that. I do not think there are any females in that institution, but there are males in that institution with sexual assault problems, and look at the success rate of that particular programming.

I would argue that you need to look at what is really behind that number. Are non-Aboriginal offenders getting an option other than sentencing, and why? Second, they are serious offences no matter who commits them, and we need to try to address that behaviour in these people before they go back to wherever they are. It may well be, senator, that there are severely limited resources back in their own reservation. They may have their hands tied by that as well when they go back. There are very limited local resources to help them stay the line.

Senator Frum: Or it could be that Bill C-10 will not actually have a disproportionate negative effect on Aboriginal women. That is also a possibility.

Mr. Sampson: I think it will have an impact on those people who are offending.

Ms. Rosenfeldt: Exactly. I am sorry, Senator Frum, that I did not quite understand the question, because that was my idea, that it is not really going to affect them that much, other than that possibly certain drug crimes will affect them. Proportionately, I do not think so; I cannot see that being a problem.

Senator Frum: Ms. Rosenfeldt, one of the reasons I thought to ask you the question is because we have had so much testimony here from Aboriginal groups speaking against the bill, and it was very enlightening to hear your perspective, particularly from the point of view of Aboriginal women victims, who I think you said would be well served by this bill.

Ms. Rosenfeldt: Very much so.

Senator Frum: I think that balance needs to be expressed, that this bill is potentially of great service to Aboriginal women.

Ms. Rosenfeldt: It certainly is; if you look at it totally from a victim's perspective, by all means. If you are looking at it from an offender's perspective, whether it is women or men, you are going to face opposition; it is as simple as that.

It is been 40 years, really, that we have had this notion, and there has been not much, other than in the last few years, in relation to inclusion of victims and victims' opinions. It is still not where it should be in relation to Aboriginal victims of crime. It is still not where it should be for them. There are some Aboriginal victims' organizations that, in my estimation, hopefully would have been at this table. I have not heard any of their testimony, other than if they are lawyers representing Aboriginals. That is a whole different concept. They say that they worry about victims, but it is mainly offenders.

[Translation]

Senator Dagenais: My first question is for Mr. Sampson. As I listened to you, I realized that there was a lot of goodwill in the reports on paper. The intentions are good, yes, but I get the sense that everyone is content to simply tread water. I do not know where the fault lies, but what do we need to do to bring about a genuine transformation?

[English]

Mr. Sampson: Back to my previous answer: Mandate it. Set goals, set targets, and make them realistic. Call the commissioner back a year from now and say, "Where are you, Mr. Head? Are you there yet? If not, why? What do you need? Let us move on."

That may not be the responsibility of this particular panel, but I think someone needs to do that, and there is nothing wrong in the corrections system with setting reasonable goals and expectations. Senator, the tool box is here. Challenge somebody to use them.

[Translation]

Senator Dagenais: Ms. Rosenfeldt, we have heard from various social groups, as well as representatives of the law societies. Just this morning, there was an article in the National Post about two retired judges who reject the principle of mandatory minimum sentencing set out in Bill C-10 for the purpose of protecting children and communities. I am happy to hear you say that we must not deliver a cheap form of justice when it comes to protecting children and the public from dangerous criminals. I would like to hear your comments on parole for sex offenders.

[English]

Ms. Rosenfeldt: In response to that, throughout the years we have definitely spoken with judges. In fact, a number of years ago I was chair of a provincial government agency in Ontario, and it was called the Office for Victims of Crime. At that particular time, our office was contacted by a few judges who were really concerned in relation to, in particular, house arrest, conditional sentences and such. A number of judges were not into supporting that; however, a number of judges were.

Where we are at today, in response to what some judges are now doing and speaking up against mandatory minimums, it is a huge issue, because certainly some judges and some Crown attorneys — not all Crown attorneys; trust me on that one — feel that they are losing their discretion.

As a victim and as a victim organization, we really do not see it as that. What is discretion? If they lose discretion, that is one thing; it is what victims lose on the other side. That is where we, as victims, always try, as best we can, to explain that there must be a balance and to give the view of the victim.

Our organization does not really care if judges lose their discretion, but we do care if young children and/or adults lose their dignity and their hope by being abused by another person, simple as that. It is just varying views. We have to change.

The Chair: Honourable senators, that concludes our time with Mr. Sampson and Ms. Rosenfeldt.

On behalf of all of us, I sincerely want to thank you for the contribution you have made here today, as well as the effort, the time and the quality of the work that you have put into the report, which obviously is integral to the development of Bill C-10. We thank you so much for that.

Ms. Rosenfeldt: Thank you very much. Could I just make one comment?

The Chair: Yes.

Ms. Rosenfeldt: In relation to the senator's comments on Aboriginal offenders, I do believe that the Ashley Smith case will bring a lot of questions to the forefront, which I hope will in fact in the end be able to help. That is in relation to the question you asked and the people that work on behalf of women offenders.

The Chair: Thank you for that. Ms. Rosenfeldt, with respect to the work you have done with victims' groups and the tireless effort you put into that, I know your efforts. They are directed to victims, but I know it is for the benefit all Canadians. That is why you appear before us, to make sure we understand the consequences of what we do, and we deeply appreciate it. Thank you.

Ms. Rosenfeldt: Thank you very much.

The Chair: We continue our study of Bill C-10, which is entitled the safe streets and communities act. We are continuing to consider Parts 2 and 3 of Bill C-10 which concern conditional sentencing, parole and pardons.

We are extremely pleased to have with us two people I know are very knowledgeable on these topics. From the University of British Columbia, we have Professor of Law, Michael Jackson. We have as well Graham Stewart who, in 2007, retired as Executive Director of the John Howard Society after 33 years of service with that organization.

Mr. Jackson and Mr. Stewart I believe in 2007 wrote a report entitled A Flawed Compass: A Human Rights Analysis of the Roadmap to Strengthening Public Safety.

Senator Cowan: It was in 2009.

The Chair: Thank you, Senator Cowan. That analysis was done in relation to the report we heard of just previously that had been chaired by Mr. Sampson, so it is very timely to have you here today to hear your comments.

We would be interested in any opening statements you care to make, and I understand, Mr. Stewart, you will begin.

Graham Stewart, as an individual: Thank for the invitation to be here today. As Mr. Jackson and I were discussing this hearing, we are very much aware that we are the last panel. Having watched some of the testimony, we were questioning what is it we could say at this point that has not been said repeatedly. In that sense, I wanted to back up a little bit and look at the issue, particularly that of mandatory minimum sentences, from a broader perspective and why we have a problem with mandatory minimums.

Let me say right off the top, and I think this is a point of considerable misunderstanding, the opposition to mandatory minimums is not the penalty; it is the decision maker. It is the question of who sentences that is the issue, not the quantum of the penalty. In fact, for many of these offences, people are already getting those penalties, but the issue is who will decide and on what basis.

With that in mind, I think there are some things that we should look at and consider from the American experience. Let me say right off the top that it is understandable that there are those who bristle at the notion that we are comparing ourselves with the Americans. We are very different. We have a different history and tradition, and I acknowledge that, but that is not to say that we do not have some things that we could and should learn from their experience.

If we go back to 1974, which is shortly after I began my career, the incarceration rate in Canada was 89 per hundred thousand. The incarceration rate in the United States was 149. Now, it was obviously higher than Canada, but it is wrong to assume that Americans have always been very punitive. In fact, their use of sentencing and punishment 40 years ago and for the previous century was largely indistinguishable from Canada's, with the exception of gun crime, which has always been higher in the United States and, presumably, because of the proliferation of guns. It contributes to that.

Now 40 years later, Canada's rate has increased from 89 to 118 per 100,000. That is a 32 per cent increase, while in the United States it has increased from 149 to 730. That is a 389 per cent increase, and it has been an enormous social and financial cost, almost inconceivable. Today, one in every 100 American adults is in jail — not having been in jail — but in jail today, one in every 100.

One in 30 men between the ages of 20 and 34 is in jail — one in every 30, and for Black men that age, it is one in every nine.

Five states — Vermont, Michigan, Oregon, Connecticut and Delaware — now spend more on their correctional system than on their post-secondary education system. In every school classroom in America, there are two children that have a parent in jail. More than any other cause, and there are a number of different causes, the difference in causes of the incarceration rates between Canada and the United States reflects sentencing policy and, in particular, the use of mandatory minimums. While the United States embraced mandatory minimum sentencing, Canada, through various governments of different political stripes, avoided the wedge politics that this creates and instead developed sound sentencing policies that reflected values of Canadians and left sentencing to the judges.

There are obviously some important differences between Canada and the United States that would ensure Canada would never go — I think — as far as the Americans. We do not elect our judges. We do not have 52 Criminal Codes and the politics that that generates. We do not have the level of gun crime, that level of violence. As well, we have our Charter.

Still, I think that the important lesson, if there is one here, is when the Americans embarked on this course of using mandatory minimums they did not expect to get where they are. That was not the plan. They did not say, "Let us increase our prison population 400 per cent; let us put one in nine adult Black males in jail; let us have a population of 2 million in our prison system and recidivist rates that are amongst the highest in the world." That was not the plan.

Back in the 1970s, nobody knew where introducing a few mandatory minimum sentences would go. The problem was, and I have heard it in the testimony, that people assumed that mandatory minimums meant public safety, that the equation was there, that one meant the other without pulling that apart and seeing the real implications.

The problem is that once that is understood, once the public understands that mandatory minimum sentences mean public safety, why would they not demand more? What is the rationale? If it works for this, why would it not work for that? If it is the appropriate response, and so what happens is once you start on that road, it is very difficult to contain it. It is very difficult to say, "Well, we were really wrong," and the public has the right then to demand more of the same, and it becomes uncontrollable, as we have seen.

Mandatory minimums affect the least serious incident within a given classification crime. The more serious ones already get those penalties, so it does not change the sentence, and it is often the ones we cannot think of. When we think of the crime, you list the crime, you imagine what that is, and that is driven largely by what you have heard. I am the same. It is what you have heard in the papers, what you have seen and people you have heard from, and that tends to be the serious. When you then look to mandatory minimums, they look soft. You are talking about multiple raping of children, one year. That sounds soft. In the reality, in the real world, circumstances come up all the time that did not fit that, and the recent experience in Toronto, I think, made that quite clear, that no one really thought about armed gun offence as involving someone mugging for a Facebook shot, and in those circumstances, it becomes unjust.

If we are going to have mandatory minimums that could actually anticipate the least onerous or the least serious aspect of an offence and set the mandatory minimum at that level, then it will be seen as too soft. It will be seen as ridiculous. On the other hand, if we set it above that, then it is inevitably unjust. If we could put on a penalty that is greater than what circumstance could arise, then we are requiring our judges to pass a sentence that we know will be unjust, at least, in the eyes of that judge.

Either way, mandatory minimum sentences will be seen as too harsh or too soft and will erode public confidence in our justice system. Mandatory minimums cannot address what Canadians report are the most important sentencing objectives. The Department of Justice has done the research. The most important sentencing objectives for Canadians are, first of all, rehabilitation, and second, reparation, substantially greater, and the lowest are incapacitation and denunciation, of the objectives of sentencing.

It is notable, I think, that except for a few retired judges, the judiciary is silent in this debate, and that is because that is their expectation; that is their code. They do not get involved in politics, and so they become, in a sense, sitting ducks.

The problem is that mandatory minimums sidestep the principles of sentencing, particularly, the notion of proportionality, which is the fundamental principle, while judges are not allowed to do that. Judges are required to use the least restrictive measure, and if they are doing that, if they are following the law, they will always be subject to criticism for being too soft because they take, in principle, the notion that you do not deprive a person of liberty more than the circumstances and the objectives of sentencing can justify.

Mandatory minimums dismiss that principle. If a judge were to say, "From now on I am having a mandatory minimum; everyone who comes into my court who has broken and entered will get four years," it would be appealed. You would expect it to be appealed. It will be lost. He is required to consider each case individually.

We use the power of the state to protect us from crime, of course. That is why we have police; that is why we give them guns; that is why we put them in uniforms, and why we have courts and so on. We expect that.

The nature of a democracy is also that we do not want to become victims of our government either — the excessive use of force, the excessive use of penalty. Without debate, the worst crimes that have ever been committed against citizens in any country have been committed by their governments. It is hard to think of any criminal in Canada who did as much harm to as many people over as long as it lasted as the residential schools for Aboriginal children. Three generations of mothers were not allowed to raise their children. How could we possibly destabilize and harm a community greater than that kind of apprehension of generations of children? They are put in institutions where many died and where many were abused. They come out. Now we find we have huge problems of alcoholism and sexual assault in Aboriginal communities and we are wondering what the best way is to punish them.

The reality is that when citizens in a democracy give responsibility to government to use force, we want a few guarantees to go with that. The major guarantee is that you will not use it any more than necessary. It will be the least intrusive measure. With police, we expect them to use force but we expect them to use no more than necessary, and that is a very difficult thing to do. When you look at incidents like the G20 situation, the riots in Vancouver, and of course there are many others you do not hear about, the police are required to make split-second decisions about how much force is necessary and no more, in a situation that is very scary for them and which can be very threatening; but we still require it because it is inconceivable that we would say you can use a bit more force than necessary or you can use a lot more force than necessary. That violates a fundamental principle that addresses our justice needs as citizens.

If we put this restriction on police, why would we expect the courts, which are not working in a frightening environment or on a timeline, certainly not split-second, and have enormous resources in terms of testimony, evidence, Crown and defence experts, victim impact statements and so on, to do less? Why would we not expect, in meting out punishment, that they would, within the notion of what you are trying to achieve, use the least restrictive means?

Finally, why would we not expect corrections, in using this tremendous authority they have — and there is no other department of government that has the authority of corrections — to not use that, respectful of the principle of least restrictive means?

The Chair: Mr. Stewart, we have your written comments here. You are moving through them, and that is fine. Throughout all of this, I have been as flexible as I can with timing and I want to be that way with you. I realize we have provided an hour for this panel. I will be as flexible on that as I can. I am thinking in terms of what time we have. We still have Mr. Jackson to hear from, and questions.

Mr. Stewart: I could just finish the gist of my last point.

The Chair: I want to make sure you have the opportunity to make the points you want to make.

Mr. Stewart: Those are the important points around mandatory minimum. I want to make sure that people understood that with regard to mandatory minimums, I do not have a number in mind, but I think it is important that if you are going to balance this authority, both to punish but also to protect our rights as citizens, that has to be done individually, and the only person who can do that is a judge. When we put in mandatory minimums, we pockmark the justice system with arbitrary sentencing. In saying that, it is hard for me to imagine that mandatory minimums will not lead to a significant increase in incarceration rates.

With the prison systems, as many of you have noted, there are all these noble calls but they have little capacity to develop. I heard the Correctional Investigator yesterday talking about how in most institutions only 10 people are involved in a core correctional plan with 180 on the waiting list, and then we talk about how we will motivate prisoners to participate in programs that are not available.

In the end, prisons and overcrowding of prisons — and this is the point I wanted to make — feed on themselves. If you have overcrowded prisons, you have more violence in the prisons. Sharing a cell with a person you do not like or may fear or hate for 18 hours a day is not a pleasant process, and it is likely to lead to violence. As you end up with crowded situations, staff know the inmates less. As they know them less, they appear more threatening; they are more likely to go into higher levels of security. In maximum, you are less likely to get parole. You feed a system that ends up with greater use of imprisonment, feeds on itself and grows beyond the measures themselves, what we might anticipate for sentencing. In the end, it is very hard to see how this system can effectively change behaviour. That is the only thing in the end that is public safety. Given that virtually everyone comes out of jail, if they do not come out better prepared and better supported in their transition into the community, we have achieved nothing.

The Chair: Professor Jackson, since both of you co-authored the report in response to Mr. Sampson's report, we would appreciate any comments you would make that would be directed towards the work you did on that report. Please proceed.

Michael Jackson, Professor of Law, University of British Columbia, as an individual: Thirty-six hours ago I was 6,000 miles away with my grandchildren. I told them I had to come to Ottawa to talk to some important people, and they said, "Papa, why do you have to go? Stay with us."

Why did I have to come? I tried to explain to them, not that I was coming here to talk about the importance of human rights and the Canadian criminal justice system; I said to them, "I want to come and talk to these important people about how we act in a respectful way to each other, how we treat each other with decency."

I have, for 40 years, advocated as a professor, as counsel, as a member of committees of the Correctional Service of Canada and adviser to Royal commissions, on the importance of recognizing and respecting the rights of Aboriginal peoples and the rights of those who find themselves in the deep end of the criminal justice system in Canadian penitentiaries.

The theme of respect for human rights is a theme in which you will not find a single word — not a single word — mentioned in Mr. Sampson's review panel. It is quite remarkable. It is not part of the transformations toolbox. It is not part of the provisions in the amendments to the CCRA. That is important for you to know because the modern era of respect for human rights, the continuing and laborious effort to inculcate and develop a culture of respect for human rights dates back to deliberations of the Canadian Parliament, the 1977 committee that looked into the penitentiary system in Canada after a series of riots in maximum security institutions.

I was in the middle of one of those riots. I was a negotiator trying to negotiate the release of hostages in the B.C. Penitentiary in 1977. That committee, an all-party committee, unanimously came up with a report that documented the litany of abuses of power within the Canadian penitentiary system — the corrosive effect of a lack of purpose and the lack of the rule of law governing discipline, segregation and a host of other decisions that affect the lives of those behind prison walls.

You have heard talk about the need to rebalance the system. Somehow the system has got overweighed and imbalanced in favour of the rights of offenders. In 1977, in Canadian law, prisoners had no rights. There was no culture of respect for human rights. That is why we had the hostage-takings. That is why we had the violence. That is why we had a system that was so abusive.

Since that time, a lot has changed. One of the principle reasons it has changed is, with the introduction of the Charter, there has developed in Canada one of the abiding themes that gives Canada its distinctive role in the international community and one of the reasons why other corrections systems up until this point, but likely not hereafter, have looked to Canada as a model of progressive corrections, which is that we have sought to demonstrate and articulate and legislate a culture of respect for human rights.

The CCRA is the primary demonstration of that. The CCRA was six years in the making. I appeared before both committees of the House of Commons and the Senate on a number of occasions, as did many others. It was a long, deliberative, consultative process. It was completely different to the roadmap process, which was given 50 days to do the work of multiple royal commissions. It was extended magnanimously to six months. There was hardly any consultation. There was no research staff. There was no judicial imprimatur in terms of the chairperson. As distinguished a Canadian as Mr. Sampson is, his experience was as a minister of corrections. If this was the case, why did the federal minister of corrections need any advice? He did the job for two years himself.

The CCRA was in fact the first and probably the best example of legislation that took the Charter and said, "How do we apply it to the very difficult job of corrections?" It recognized, as the Supreme Court has recognized, that the Charter and the Constitution do not stop at prison doors. They follow an offender into the penitentiary. However, the Charter's guarantee of fundamental rights and freedoms is subject to reasonable limits, and there are certain reasonable limits within a penitentiary, which are different and justifiable where they would not be outside of a penitentiary. The CCRA was a deliberate, deliberated attempt to articulate the rights and responsibilities of offenders — the authority necessary for correctional staff to manage, safely, in the interests of public safety, and in accordance with fundamental human rights, those committed to its custody.

One of those provisions is a provision that has been talked about in this committee, which is the provision that the penitentiary service, the Correctional Service of Canada, in discharging its mandate, must use the least restrictive measures, consistent with public safety, the safety of staff and the safety of offenders. It is not the least restrictive measures, however conceived. It is conditioned by the issue of public safety.

That least restrictive principle is not fashioned out of thin air. It is not just words that sound good, least restrictive measure. It follows from the Supreme Court of Canada's decision in the Oakes case. It is a constitutional restriction or reflection of the principle of restraint on official state authority, which, as Mr. Stewart says, is nowhere more manifest or intrusive as in the penitentiary system. That provision is one of the golden rules, as Mr. Sapers has referred to it. It is a fundamental principle underlying the CCRA.

The Chair: Mr. Jackson, you can use your time as you think fit. We had, I believe everyone was aware, five to seven minutes for an opening statement. Others have gone beyond, so I will give you as much latitude as I can. I am wondering if some of the points you want to make could be brought out through questions and you could work them into the responses. I will leave that to you. If you want to continue, that is fine, but this will have to end at some point. I leave it to you to use your time as productively as you want.

Mr. Jackson: That principle of least restrictive measures is a fundamental one. Mr. Sampson's roadmap recommended its evisceration, to be replaced with appropriate measures, which is not a standard at all. It is not a constitutional, legal standard. It is a discretionary standard in which correctional authorities, not the Constitution, determine the level of protection of abuse for prisoners.

With respect to the amendment proposed in the CCRA, the officials at the department recognized that Mr. Sampson's recommendation was unconstitutional. They have modified it so the language now is "necessary and proportionate." The Canadian Bar Association recommended, and I endorse it, as I was part of the committee that wrote that report, that it is easy to amend that particular provision to reinstate the least restrictive measure. I have challenged Mr. Head and correctional authorities to come up with one single, initiative they want to do that they cannot do because the least restrictive measures somehow is barring them or disabled them, and they have not done that.

The other point I will make as part of my opening, if I may, as a specific example of the importance of the toolbox containing recognition and in fact reinvigoration of principles that respect human rights, is that Bill C-10 would have you believe that it is modernizing segregation practices and modernizing discipline. In fact, the most persistent and dominant theme of the modernization of segregation, a practice which this year the United Nations rapporteur on torture reinforced that state parties should reconsider the use of segregation, the only recommendation which has received unanimous support, including a committee of the House of Commons that reviewed the CCRA, is that decisions about segregation should be made by independent judges, not the Correctional Service of Canada itself. That has been endorsed by committee after committee, royal commission after royal commission, including CSC's own Task Force on Segregation. In the Sampson roadmap, there is not a word about that recommendation. It is not part of the toolbox. Had it been part of the toolbox, Ashley Smith likely would not be dead. It is not in the toolbox because it seems CSC, and Mr. Sampson, believe that in fact independent adjudication is not a necessary component for the protection of abuse — not a necessary component in relation to that part of the practise of imprisonment that for two centuries has been documented as being the most abusive part of the system.

What it does recommend, and that is in Bill C-10, is that someone who is sentenced to segregation should also, as part of the sentence, have their right to visits taken away. That is part of the whole project to deepen the intensity of imprisonment, coupled with the lengthening of imprisonment through mandatory minimums, coupled with reducing the availability of pardons. What you have is a culture not of respect of human rights but one in which the principle of restraint is being withdrawn officially from the kinds of criminal justice system which, over the last 40 years, has made us a model internationally.

The Chair: Professor Jackson, I will ask you once again —

Mr. Jackson: I am finished.

The Chair: Thank you.

We will proceed to questions, beginning with our deputy chair, Senator Fraser.

Senator Fraser: Thank you both for being here, particularly on a day when a snowstorm is moving in. We truly appreciate your contribution. I will try to keep the questions short, and answers should also be short, because I know other colleagues will also have questions.

In Bill C-10, the principles that guide the correctional service are set out at some length, and there is one that I would like to ask you about. The sentence is carried out having regard to all relevant available information, much of which is already in the act, but new is having regard to the nature and gravity of the offence.

The Correctional Investigator suggested to us that this was beyond the scope of what the corrections service should be doing, that it is the courts that consider the nature and gravity of the offence, and possibly also the parole board, for all I know. He said that the job of the corrections service is not to look at the gravity of the offence; it is to look at the sentence and say this is how we do it. Could you comment on that?

Mr. Jackson: I think Mr. Sapers is correct. The principle of proportionality is a sentencing principle. In fact, it is the fundamental principle articulated in the 1996 amendments to the Criminal Code.

The purposes of corrections, as articulated in the CCRA, is to implement the sentence, but it is to contribute to a safe, peaceful and secure society by implementing the sentence, by ensuring humane custody and assisting in reintegration. It is not to recalibrate or reassess the gravity of the offence or the degree of responsibility of the offender. That has been determined by a judge.

The great danger of that language is that one may say, "Well, why should correctional authorities and the Parole Board not do that? It is part of the sentence of the court." To the extent that they limit themselves to the judge's assessment of that at the time of trial, where all evidence is in open court and subject to cross-examination and the sentence itself is subject to appeal, there is no problem. The problem comes with the operational reality. When the Correctional Service of Canada receives an offender, they receive a lot of information along with the offender, as you would hope. They receive the judge's reasons for sentence and previous correctional records. They do a psychological assessment and assess needs. They get a lot of information. The dominant reality has been that correctional officers, in doing the evaluation, will look at police reports as well as the judge's reasons for sentencing. Police reports are based upon witness statements, reports to Crown counsel, and often the assessment of the culpability of an offender in a police report is quite different from the assessment made after a trial or after sentencing.

It is my experience and the experience of almost everyone I know who practises in this field is that at parole board hearings one is often pushed to explain to the Parole Board a report that has been prepared on the offender which characterizes the offender's culpability not on the basis of the sentence but on the basis of other pre-trial information prepared by the police which the judge has either rejected or reassessed in light of other evidence.

Putting that language into the legislation is a legislative invitation for the Parole Board and corrections to do exactly what they have been doing, which is to reassess and recalibrate a sentencing decision, and that is not their responsibility. It is a confusion of responsibilities.

Senator Runciman: I have some questions related to your report, Mr. Stewart, but I have great difficulty with you talking about the Americanization of the system. That is a myth that has been spread across the airwaves in this country by a number of media outlets. If you look at the mandatory minimums contained in this bill, the size of prisons in this country compared to American ones and incarceration rates, any honest comparison will indicate clearly that it is not a fair or, in many respects, an honest comparison.

You said in your opening statement, and I had difficulty believing you would say it, that mandatory minimums will erode public confidence in our justice system.

I have read this court decision before, but I will put it on the record again because I think it is appropriate given your comment. This is an Alberta Court of Appeal decision from December of 2010. It is a case where a man was given a 90-day intermittent sentence and probation for raping an unconscious girl. The intermittent sentence was, I presume, being served on weekends with him showing up and being sent home, as happens quite often.

The appeal court took the opportunity to talk about the lack of consistent sentencing in Canada. The court said:

judge shopping is alive and well. . . . Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Criminal Code are not attainable. This makes the search for just sanctions at best a lottery and at worst a myth. . . . If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.

You talk about diminishment of public confidence in the justice system. I suggest that that lack of confidence has run rampant because of many decisions made by the courts. The government is addressing it. As that court suggested, it is being forced to in many respects because of the decisions of courts across this country.

I would like to hear your rationale with respect to mandatory minimums having an erosive impact.

Mr. Stewart: To clarify, I did not say that Canada and the United States are the same. They certainly are not the same today, and one reason they are not the same is that we have not adopted mandatory minimums as a broad-scope approach to criminal justice. Canada and the United States were more comparable in their incarceration rates before the launch into mandatory minimums. It is the direction that I am talking about.

It seems to me that if the Americans ended up someplace they never intended to be with a particular mechanism, we should pause and wonder what the implications might be in the broader sense once we adopt the notion of mandatory minimums.

You talk about a particular case in Edmonton. My point has not been the quantum; my point has been who passes the sentence. If we want to balance all these considerations, the considerations of sentencing but also the considerations of protecting democracy from excessive force, then someone has to do it, and the principle is that it is done on an individual basis, not on a collective basis.

In terms of public confidence, it is worth noting that public confidence in the judiciary in the United States, which has mandatory minimums scattered throughout their system, is much lower than it is in Canada, even where judges are elected.

The problem is that when asked whether they think the courts are too lenient, people tend to say yes. I think that is to be expected as long as they are working on the notion of least restrictive measures consistent with the purpose of sentencing. However, if you ask them whether they have confidence in the court as an arbitrator of facts and of finding of guilt, confidence is very high.

There is a difference here. When you ask people what they think the most important objective of sentencing is, it is rehabilitation. Rehabilitation is at the top and punishment is at the other end. It is hard to square that wheel, but the reality is that once you start making justice arbitrary, you cannot maintain public confidence. In an attempt to get harsher penalties, you undermine the confidence that people have in the judiciary as a trier of fact and a body that makes wise decisions that are individualized for the particular circumstances and culpability of the offenders.

Senator Runciman: Call that an attempt to get just sentences.

Senator Cowan: Welcome, gentlemen, and thank you for your assistance.

Mr. Stewart, I want to put to you a concept that Mr. Sampson put to us earlier this morning. You may have heard it in support of the concept of mandatory minimum sentences. Mr. Sampson said that often with the lower sentences, if you are only in there for 18 months, it is not long enough to do what needs to be done. I believe he was arguing that longer sentences and mandatory minimum sentences — I do not think the two are exactly the same — are required in order for the correctional service to provide employment training, education and that sort of thing. Is there any validity in that argument?

Mr. Stewart: There are a number of problems with that argument. First, Mr. Sampson is only talking about the federal system when he talks about three-year sentences. The vast majority of offenders are in the provincial system, where the sentences are much shorter.

Senator Cowan: That is anything under two years.

Mr. Stewart: Yes, and that potentially will not change. In relation to the three-year sentence, the fact that the prison population is what they refer to as bimodal, a lot of people are doing shorter sentences, as you would expect, but there are a lot of people doing long sentences. In fact, 20 per cent are doing life.

The principle here is that you are sentenced for your offence; you are not sentenced because you are uneducated. You are not sentenced because you are unemployed. That is not a crime. When we start using needs of an individual as the basis to sentence them, so we give them longer sentences in order to give them an education, we have really perverted the nature of the justice system.

My view is that a prison sentence is a window of opportunity to do some useful things. You want to make sure that people, while they are in prison, are benefiting as much as they can from education and so on. When we hear, as we did yesterday, that in the core correctional programs only 10 people in an institution of 400 are doing that, it means the vast majority of people are idle.

There is much we could be doing to enrich the resources and make use of them while people are there, without tinkering with the idea that because people are on a list for a year and a half waiting for a program we should make the sentence longer. Those ideas sound reasonable but they pervert the nature of justice and they create and contribute to an ever-increasing correctional system that already cannot cope.

Senator Cowan: Professor Jackson, we have heard a lot about the overrepresentation of Aboriginals and other minorities in our correctional system. Can you offer some comment on that and the impact of Bill C-10 on that situation?

Mr. Jackson: I can and I will do so. You have heard many references. I have read the evidence that has been laid before you regarding the decision of the Supreme Court of Canada in Gladue, and you have had parts of it quoted to you.

I take some pride in the Gladue decision in that Justice Iacobucci and Justice Cory referred to a report I authored for the Canadian Bar Association in 1988 which then documented the overrepresentation. In 1988 the number of Aboriginals in the federal population stood at 10 per cent. I made the comment, which the Supreme Court quoted, that the prison had become for young Aboriginal men and women what the residential school was for their parents and grandparents. The promise of a just society was not a college education but a term in a federal institution.

The Supreme Court of Canada, in 1997 in Gladue, referred to that as a "crisis" and as a "staggering injustice." The Supreme Court of Canada has never used those words in relation to any other phenomena in Canada — "staggering injustice." In 1997, when the Gladue decision came out, the representation had increased to 13 per cent. You now know it has increased to over 20 per cent.

I do not know what the Supreme Court of Canada would now say. I do not know how you would characterize the figures if they have almost doubled in 20 years. The great fear — and Senator Frum raised this with the last panel — is the possible impact of Bill C-10 on that overrepresentation. My concern, which Judge Stuart referred you to, is that conditional sentencing has become the principal way in which judges hold to the promise of Gladue of taking into account the special circumstances of Aboriginal offenders in the use of imprisonment and seeking alternatives. The conditional sentence, the halfway house between prison and probation, long awaited, has in fact been utilized with great effect by judges.

You have also heard that there have been abuses of the conditional sentence, and previous amendments to the Criminal Code have sought to address that. I believe this round of amendments, in reducing the availability of conditional sentencing, will eviscerate the efforts being made by judges to implement Gladue. The effect of that will be that Bill C-10 literally, although not with your blessing but in fact ineluctably because of the limitation on available alternatives, will sentence more Aboriginal people to prison.

The Chair: Professor Jackson, we have the gist of the response. Again, as you know, I do not like to do this, but I want to make certain all of our senators have the opportunity.

[Translation]

Senator Dagenais: I have two brief questions for Mr. Stewart. You said that, as far as public confidence in the justice system goes, rehabilitation is more important than sentencing. What is your basis for saying that, what data?

[English]

Mr. Stewart: That data comes from the Department of Justice. It is a report that was entitled The 2007 National Justice Survey: Tackling Crime and Public Confidence. It was a survey conducted during the initial stages of looking at the kind of legislation that we are approaching today to measure the public confidence.

The Justice Department asked people what they thought of the objects of sentencing that are in the law, and those are: rehabilitation, reparation, accountability, specific deterrence, general deterrence, incapacitation, and denunciation.

It is on the website of Justice Canada. It is easily available, and this is the chart. You can see that it is a line going down. The most important sanction that was identified here was in the order that I just read them.

First is rehabilitation. Most people think if you do not rehabilitate people you have accomplished nothing. The second is reparation; do what you can to repair the harm to the victims. Third is accountability, then deterrence, specific and general; incapacitation and denunciation. That is quite consistent in other surveys that have been done. The public does not measure justice in terms of the objectives, only in terms of punitive responses.

[Translation]

Senator Dagenais: In light of what witnesses have told us all week long, there is no denying that lawyers and the law societies have a problem with the principle of mandatory minimum sentencing. Fortunately, not all lawyers share that opinion.

If I understood correctly, you do not feel that lawmakers should intervene when it comes to imposing mandatory minimums because the privilege of defining a sentence belongs to judges. I would point out that our laws also set out maximum sentences, and yet no one came before us to say they disagreed with the principle of maximum sentencing because it infringed upon judges' authority. What are your thoughts on that?

[English]

Mr. Stewart: Well, it is true maximum sentences, in theory, interfere with judicial discretion, except that in drafting the laws maximum penalties were set at very high levels that are hardly ever reached. There are very few people who are sentenced to the maximum. In practice it has not been a problem. I believe it was intended to set an extreme outside limit that we would rarely see. We do not see people, for instance, being sentenced to life for break and enter. In practice it has not been a problem, but in theory you are right, maximums inhibit or conceivably inhibit discretion. However, mandatory minimums tend not to be set at such extreme levels. Indeed, if they were, they would be clearly not seen as of any value.

Senator Jaffer: Thanks to both of you. I want to officially thank you for the great work you have been doing over the years around prison reform. When we had Mr. Sapers here yesterday, he spoke about the profile changing in the prison population. He said that there were visible minorities, Aboriginal people and women in prison in greater numbers. Then he went on to say that the population is changing, that it is getting older, more addicted, and more mentally disordered.

I tweet, and I just heard from Black Behind Bars, saying that "We are more in prison now than in our rightful place in society."

I want to ask you a question on the visible minority population that is increasing. Yesterday we had a number that it is 9 per cent of the population. I am very concerned that we have an increasing population from visible minorities. I would like you both to comment on that.

Mr. Jackson: Mr. Sapers is right. He is on top of the information. That is one of the prerogatives he has, being the correctional investigator. He has access to a lot of information that most of us, including the legislators, do not have.

Part of the explanation for the increase in visible minorities relates to one of the concerns Mr. Sampson's panel had. In this sense, there has been an Americanization of Canadian prisons, the proliferation of gangs, both in our communities and also inside the walls. They pose real problems. Many of the gangs, particularly from your part of the country, the West Coast, are in fact gangs that have visible minority associations, as do many of the gangs in Toronto, with the Caribbean immigrant population, and as in the Prairies with Aboriginal gangs.

That raises really important issues. Mr. Sampson's approach, and the approach of Bill C-10, is to take gangs as an example of what needs to be changed, to scale up the rigours of confinement in order to provide incentives for gang members to leave their associations and in fact become productive citizens. That is one way to go.

We challenge that in our report on the basis that given where gangs tend to come from in terms of the socio- economic backgrounds, the often record of deprivation, being raised in single families, and lack of educational opportunity, they already are used to a level of privation. To add to that privation as an incentive for them to change is not demonstrably likely to work.

The alternative approach — and it is the one that has been used successfully by CSC but is very resource heavy — is to work with the gangs, using ex-gang members, to provide them with the skill sets and the motivation to move beyond that false respect that they crave from gang association.

In the prisons, working with Aboriginal healing concepts has been much more effective than, in fact, upping the level of depravations — that was one of the issues we took with the road map and one of the issues we take with Bill C- 10 — instead of putting resources into helping offenders make their lives better, not through fanciful work projects, which cannot be delivered, as Mr. Sampson acknowledged. It is an aspiration that will like, so many aspirations in the history of corrections, not be realized.

[Translation]

Senator Boisvenu: I do not know where to start as far as your brief goes. First, it is obvious that you need to update your information when you say that we should invest $810 million in 2012, despite the fact that, on January 27, Don Head issued a directive to his entire staff saying that no new prisons would be built and no new staff would be hired. I encourage you to update your brief.

If Microsoft managed its businesses the same way we manage Canada's prisons, it would be bankrupt. The reincarceration rate in Canada's prisons is 70 per cent. To deny the reality staring us in the face strikes me as dangerous, not only for the criminals, but also for the victims, not to mention for ourselves, the public administrators. The merit of rehabilitation is in no way being called into question. What is being called into question is the effectiveness of our programs. When seven out of ten criminals return to prison, is that not reason enough to ask some questions?

Nearly all European countries — including England, Italy, France and Spain — are reintroducing mandatory minimum sentences for those crimes with a higher recidivism rate, not all crimes. Will the passage of Bill C-10 make our system so terrible, or are we seeing two completely different realities here?

[English]

Mr. Stewart: First, I did not say that new prisons were being built. New cells are being built. I gave the budget, which has increased $89 million, I think it was, from last year to this year. Clearly, if we were going to have substantially increased populations, either prisons will be much more crowded or there will be new facilities. That is not something I am spending a lot of time thinking about.

However, I am very concerned, as you mentioned, about high rates of recidivism. Of course, that in fact is the issue. That is the biggest issue. One of the problems with thinking that longer sentences provide public safety is that it is not the person who is in jail or the person in the community; it is the person coming out of jail who represents the risk. It is the person who has come out and is on the street now. For a period of time, there is a high risk of recidivism. That means crime and victimization. When a person reoffends and goes back, everyone loses, including the offender.

However, the longer he is out, the less likely that he will reoffend. After two years, the rate goes down dramatically, or during the period of two years, but at two years it is very low. After seven years, an offender is no more likely to commit a crime than a person who has no criminal record at all, so it is time limited.

The point is that if we just make sentences longer, after a relatively short period of time we have just as many people being released as we did before. However, the risk is the same. In the meantime, we have enormous resources tied up in a much larger prison system.

I know it is counterintuitive to suggest that longer sentences do not translate into public safety, but that is why. If we increase every sentence by a year, then at some point we have gone through that. Now we have the same number of people coming out in any year as we had before, except they have been there longer. Chances are that has not been helpful, and it has been at the expense of gradual release, which is the most crucial point. If you do not do something during the transition, you have given up the opportunity to make a difference at the point where crime and recidivism is most likely to occur.

The Chair: Thank you, Mr. Stewart. I think we understand your point very clearly.

[Translation]

Senator Chaput: I have a question for Mr. Stewart. In the documentation you gave us this morning, you mention the fact that five American states spend as much on corrections as they do on higher education, if not more. I was flabbergasted; that seems to be a pretty slippery slope. My question is quite simple. Do you think that, with Bill C-10, Canada could one day find itself on the same slope as the U.S.?

[English]

Mr. Stewart: Yes. We may never get to the point where we are talking about a 400 per cent increase in our prison population, but 100 per cent would be catastrophic. My point was that they did not plan this huge system. It took off. It became self-reinforcing. The prison system itself, bad as our recidivist rate might be, is considerably better than the American system.

The principle that you can address crime through punishment is really faulty. We punish people not because it will correct. It is because we hold the values associated with the behaviour that we want to denounce. We have to know as citizens that we are not the only one out there following the law. However, when you try to use sentencing as the way to beg public safety, we are really ignoring the things that make a difference. Instead of coming up all the time with punishments to deter people from committing crimes, we also have to ask why people do commit crimes. What is the incentive to commit crime? What have we done to address that? I think that is probably more productive, and that is the basis on which treatment works. When it is done in some institutions in Canada, particularly in the mental health area, it is very effective. It is not perfect, but it is very effective, and we have a lot to learn from that.

The Chair: Thank you, senator. We will have to move on.

The points you have raised are ones we are certainly considering around this table and we have heard a lot of evidence on. Your points are not lost on us.

Senator Lang: I would like to direct my question to Mr. Stewart, if I could. I would like to follow up on Senator Runciman's observation. I was quite surprised that you would say that mandatory minimums will erode public confidence in our judicial system.

We have had a very interesting series of hearings here. One of the observations that I will take away with me at the conclusion of the public hearings is that there certainly is a disconnect between those who are working directly or indirectly in the judicial system and the public.

Anyone who is representing the public who has come before us has really given us the message that there is a lack of confidence in the judicial system the way it is being administered at the present time.

That leads me to the point I want to make here, and I would like to hear your observations. When you look at the 20-odd minimum mandatory sentences that are being recommended in this bill, they are being recommended for a reason. For example, we had testimony, if you did not get a chance to read it, from a woman who very much is involved in the Toronto area in respect to the situation with women who have been sexually abused and have gone through some very traumatic experiences in their lives, and it is really questionable if some of them will recover. Her observation was that for these sexual offences, the norm is conditional sentencing. In other words, you do the deed and then three days later you are out back in the local Tim Hortons.

Her point was that something had to be done in respect to these offenders and the judiciary to know that this is a very serious offence. If we do not, as legislators, set the moral compass with minimums such as, for an example, a one- year mandatory minimum sentence for an invitation to sexually touch a person under the age of 16, my question to you is, who will? There is no consistency across the country.

Mr. Stewart: We do not know what consistency is because we do not keep data on sentencing. We are all shooting in the dark with this. It is all just impressions and beliefs that are created.

If your objective, for instance, in responding to any particular crime is to maximize the punishment because your priority is deterrence, you think that is the most effective, then clearly that suggestion of conditional sentencing for a person who has committed a sex offence seems very weak. I understand that. However, if you are a judge and you are saying, "I have a person who obviously has a problem, and I can put him in jail for a few months and have him come back out or I can put him under a two-year conditional sentence and then three years probation, for a total of five years of community supervision with requirements that he participate in programs, treatments and continuing supervision," it is not irrational that he would conclude that that offers greater public safety in the longer term. In the end, we have to have someone make that decision.

The Chair: Senator Lang, one final comment.

Senator Lang: I make this observation, and perhaps you will want to comment on this. If we do not as legislators respond to these issues where conditional sentences are now becoming the norm — and you say we do not have any data on that — one case is one too many when you have a situation where a sex offender who is let out the following day and commits the same crime three or four days later to someone else. My point is that we know that that is occurring. If we can minimize it, why should we not do that? That would be my question.

Mr. Stewart: You say we know this is happening. The judge is not sentencing retrospectively. He or she is sentencing looking ahead, and that is not a pure science. He or she is balancing a whole set of obligations that we put on him or her in law in terms of sentencing. The reality is that he or she is trying to anticipate, within the authority and the discretion that he or she has, what would be the best way of reducing harm.

Judges are not stupid. They are not inexperienced. They have heard stories that we would never hear in our lives. They are also trained to think objectively. They are very aware of their legal obligations and they make their best guess. It is really unfair with hindsight to go back and criticize them as a group as being irresponsible, for not considering the needs of victims, for not being concerned with public safety, that they are just indifferent to a person who walks out of their court the next day and rapes someone. I think that is really an unfortunate description.

The Chair: That kind of statement has not been made by anyone around this table. There has been no suggestion, no accusation of the judiciary along the lines that you have just indicated. It certainly did not come from Senator Lang's comment. We have a job to do to get all of the information that we can possibly get on the table. It is a difficult situation. We are at the very end of this process. People are tired, nerves are getting maybe a little frayed, but let us not get down to that type of thing. Those kinds of accusations have never been made around this table, and I want to make that perfectly clear.

I will have to stop you at that point, Senator Lang. We have time for a last question from Senator Frum.

Senator Frum: Mr. Stewart and Professor Jackson, I am not a lawyer. I think I am not maybe unusual among Canadian citizens who, when they first approached this bill or first started reading or understanding this bill, were under the impression that this bill created mandatory minimum sentences, and the kind of testimony you gave, gave a sense of alarm about them. In the hundreds of hours that we have spent on this, I now know that in fact we have had mandatory minimum sentences in the Criminal Code since 1892, and that there were existing before this bill 40 offences already that receive MMPs, and that among the MMPs we are discussing in Bill C-10, nine of them are cases where the MMP is going to be increased but it already exists. That leaves nine new offences, for sexual assaults on children, and then nine-ish MMPs for drug crimes, Schedule 1 and Schedule 2.

Your opposition to MMPs is very clear. Do you think the 40 ones that are already there, for drunk drivers, for murderers, are also unreasonable?

Mr. Stewart: Yes. This is the point I keep trying to make. It is not the sentence that I am talking about, it is who sentences. It just seems to me it is very dangerous. Yes, they have been around, although the escalation in the use of mandatory minimums has really been in the last 10 or 15 years, and certainly not just in this bill. If I created that impression, then that is clearly not the case.

The problem is that what it really means is that some people are being sentenced in advance by politicians instead of in the court by a judge based on the facts of the circumstances, and that is not something I am just making up. That is why the law is the way it is. That is why Canada, as opposed to the United States, has been very reluctant to use mandatory minimums generally. My concern is that the use is escalating and that once you get on that treadmill, increasingly it is more difficult to get out. I think mandatory minimums, by their very nature, reflect distrust of the judiciary.

Senator Frum: I want to address another thing you said. You referred to the abuse of children in the residential schools situation as the greatest crime ever committed in Canada. It was certainly a very ugly episode, and it is true the government has a responsibility, but the government was not the one who committed the rapes; the rapes were committed by individuals.

We had a witness here who suggested that in addition to the five-year mandatory minimum for incest, that perhaps we should also consider mandatory minimums for perpetrators such as the figures in positions of trust and authority, like the individuals who committed those crimes in the residential schools. I wonder if you could respond to that, given you believe this is the greatest crime we have ever seen in this country.

Mr. Stewart: The fact is that breach of trust under those circumstances is already recognized in the sentencing principles.

I am saying that when you start down a particular course, particularly when you start to disregard human rights, you can then put in place institutions and processes that can be very damaging. I am not saying that the government went out and raped these children, but they put together an institution that was based largely on misunderstanding and prejudice.

The other thing about that notion was it was popular. It was not just the government going off on its own idea. When you have a system where popular notions override human rights, you set yourself up for the potential of enormous abuse.

My point about the greatest abuses, there is no individual criminal you could ever point to who has done that level of harm. We just have to understand that when we start doing things like using mandatory minimums, we are continuing to build on a process that we know from other jurisdictions can be devastating.

The Chair: Colleagues, that concludes our time with this panel.

On everyone's behalf, I want to thank Mr. Stewart and Professor Jackson. Before you leave, I want to say, each of you have lived careers in dealing with this; for all of us, far less so. We are learning as we go. We need to hear from people who have experienced this. This has not just been something of passing academic interest; it is real to you. We appreciated the points you brought up that challenge some of the thoughts and opinions we have heard from other witnesses and in some ways challenge some of the thoughts each of us may have, but that is exactly what you have to do. You have done that very well and we respect that. We thank you. It has been a very helpful contribution.

Colleagues, we will continue and conclude the witness portion of our consideration of Bill C-10. We are pleased to have with us for this part of our consideration of Bill C-10, from Citizenship and Immigration Canada, Bradley Pascoe, Senior Policy Advisor, Temporary Resident Policy and Program; and Nisrin Nasrallah, Counsel.

We have from the Department of Justice Canada, Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section; Paula Kingston, Senior Counsel, Youth Justice and Strategic Initiatives Section; and Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section.

From Public Safety Canada, we have Daryl Churney, Director, Corrections Policy; and Larisa Galadza, Senior Director, National Security Policy.

From Foreign Affairs and International Trade, we have Michael Walma, Director, International Crime and Terrorism Division; and Wendell Sanford, Director, Criminal Security and Diplomatic Law Division.

Everybody will be relieved to know we will not be asking for opening or closing statements from anyone. We brought this panel together because something arose from a discussion that the members of our steering committee had, namely, deputy chair Senator Fraser, Senator Boisvenu and I. We felt that after going through this extensive process, and I believe we have heard from approximately 130 witnesses, that when all is said and done, committee members might have questions to ask of the particular departments. It is not to restate of all of the issues contained in Bill C-10 that relate to your departments, but if there was evidence we heard that might raise a technical question or a question that relates to the policy issue that is contained within Bill C-10, we wanted to have the opportunity to ask you those questions.

I know you followed the proceedings closely, and I am not asking you to critique the evidence that you have heard. However, if there is anything that you did hear that you felt was technically wrong or something that you felt that we, in considering our final conclusions on Bill C-10, might end up basing it on something that technically is wrong — there is probably a better word than "technically," but I hope you understand what I am trying to say — feel free to bring that up. Again, please keep in mind we have many people at the table, we have nine previous bills incorporated within Bill C-10, and I would like to see us keep to our schedule within an hour and 15 minutes at the most, after which we will conclude.

Having said that, I will turn to Senator Fraser.

Senator Fraser: If they do not have anything they want to tell us first, I have questions.

The Chair: I see this as our time, and I would rather focus it. I wanted to discourage speeches. We want to get to any particular issues that we have that the people at the table can address.

Senator Fraser: I have many questions but maybe I can whip off three, if I am careful. With the new sexual offences being created here, I am a little puzzled. Is there or is there not a close-in-age exemption so people who are actually close in age, like 19 and 16, or whatever, would not be captured under these offences?

Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: The new sex offences are the ones we call "adult-to-adult luring," for a short form, and the grooming offence, providing sexually explicit material to a young person. I was here the other day for the testimony and your questions, and we did look at that again. It is not an oversight that there is no close-in-age exemption; it is because those offences are committed for the purpose of facilitating an offence against the child. As you will see, the way the provisions are drafted, there is a paragraph for those offences that apply to the under 14, under 16 and under 18 to relate specifically back to the offences that are the ones that are intended to be committed, or they are facilitating the commission of those offences. The close-in-age exemption applies to the capacity to commit those offences. I think your example was the boyfriend-girlfriend situation, a boyfriend 18, and the younger girlfriend. If that person were sending sexually explicit material to the younger person for the purpose of facilitating a sexual offence against the younger person, the close-in-age would apply to the sexual offence that would be committed.

Senator Fraser: In other words, it is already in the Criminal Code so we do not need to do it again.

Ms. Kane: Exactly.

Senator Fraser: You are sure —

Ms. Kane: We are sure.

Senator Fraser: — that everything captured here is covered?

Ms. Kane: We looked at it in the development of the predecessor bill, which was Bill C-54, and again in this. We are confident that we do not need the close-in-age exemption for those two facilitating type of offences.

Senator Fraser: That is because it already exists.

Ms. Kane: Yes.

Senator Fraser: In the International Transfer of Offenders Act, it may just be that I am getting confused because there are so many new acts or portions of acts in this bill, but is it true that the minister will still be obliged to give reasons in writing if a transfer is refused?

Daryl Churney, Director, Corrections Policy, Public Safety Canada: Yes, that provision is already contained in the ITOA.

Senator Fraser: It is not deleted?

Mr. Churney: It is not deleted; it will remain.

Senator Fraser: On youth criminal justice, there has been some discussion about the records of extrajudicial measures that must be kept by police, which, as I read the act, is in order that that record be available, if it is to be submitted to the youth court judge, as part of the pattern of findings of guilt or extrajudicial measures. There has been some suggestion that we are ending up here distorting the system because, in order to benefit from extrajudicial measures, the young person must admit responsibility for the act; in essence, admit guilt. That is without a trial, without defence, without anything, and can happen quite quickly. The police officer says, "Just admit responsibility here and I will give you a reprimand and home you go." That would be an abuse of fairness and all those goods things.

Can you comment on that? You understand what I am trying to say, here.

Paula Kingston, Senior Counsel, Youth Justice and Strategic Initiatives Section, Department of Justice Canada: Yes, I do understand. I think it is difficult. There are two provisions that address records, and they deal with extrajudicial measures. It does get complicated because extrajudicial measures include extrajudicial sanctions, but there are separate rules already in the legislation that apply to the sanctions. In terms of the requirement that the police keep records, the new requirement is really for extrajudicial measures short of sanctions. It is like when a police officer just gives a warning to a young person or says, "I will refer you to a program;" or, "I will not take any further action." It is at the very front end of the system, where they are really diverting out. It will now be a requirement that the police officer keep that record.

For the other provision that has to do with what a judge takes into account when sentencing a young person, that is limited to extrajudicial sanctions. It is sanctions. You are absolutely right: In terms of the facts, the young person has accepted responsibility, but in an informal process. The young person has not been convicted or found guilty of an offence. As several witnesses have pointed out, that is their concern, which they have expressed.

Senator Fraser: I have one more question on my long list. This is on the correctional section. The Privacy Commissioner raised concerns about the amount of information that will be made available under this bill to victims. She had no objection, as far as I could see, to large amounts of information being made available to victims by the parole board, basically, or by the correctional services.

The Privacy Commissioner raised an area of concern about telling the victim what programs the offender has corrected. She made the observation that not all programs would be related to the offence of which the victim was a victim. This is not her example, it is mine, but if, for example, someone were convicted of assault — not sexual assault necessarily, just assault — and the person they beat up underwent a program for a gambling addiction that had nothing to do with the circumstances of the assault, was it an invasion of privacy to inform the victim about the offender's progress in those programs? There could be other programs that are even more personal and that are not part of what the victim, presumably, would be by any rational measure entitled to know. Do you have any comment on that?

Mr. Churney: The provisions contained in Bill C-10 that relate to the additional information to be provided to victims fall within the discretionary component. Currently in the act, there is information that "shall be disclosed" to victims and information that "may be disclosed." The provisions before you fall within the section that may be disclosed to the victim under the authority of the commissioner of corrections. There would certainly have to be an assessment by CSC whether the information to be closed is of any value to the victim, and as there is a rational connection to that particular victim in their circumstances. That is one issue.

The other issue is the level of information to be disclosed to the victim. Obviously, there is a balance to be struck with the offender's privacy and the victim's right to know. We have proceeded along a path whereby our best assessment would be that the best path to go would be to provide what, essentially, we have been calling a gist of the information about the offender's program participation. It would not necessarily be divulging that on Monday, the offender went to class at nine o'clock and then did this, this and this, but more of a high-level, general overview to give the victim a sense of or a gist of their progress or lack thereof. However, it would not be a detailed, sort of report card to the victim.

Those are the two important points.

Senator Fraser: Are there any guidelines anywhere about this kind of thing?

Mr. Churney: CSC has a commissioner's directive which relates to information disclosure. Again, they will have made an assessment, but it will be based on internal CSC policy.

Senator Fraser: Would it be possible to provide us with that?

Mr. Churney: I could follow up.

Senator Cowan: I am looking at Senator Fraser's list.

The Chair: You did not bring your own? You usually have a lot of original thoughts.

Senator Cowan: No, I am being quiet this morning. I will give my time to Senator Fraser.

Senator Jaffer: I have a few clarifications to make. When Ms. Landolt was here, she said that there were liberal judges and this is why this law has to come into place. I said to her:

Senator Jaffer: I know you have been a lawyer for a number of years. Do you have any research to show this or is it just anecdotal?

Ms. Landolt: Actually, they mention this in the government documentation provided to us with Bill C-10. It is documented right there.

Senator Jaffer: These are government documents not your research.

Ms. Landolt: Not our own. This was the government saying that 52 per cent of all drug issues before the courts . . . .

Basically, she talks about a government document saying there are liberal judges. I am sorry, I have looked everywhere; I cannot find one. I would doubt it, but I want to be sure. Is there a document that talks about liberal judges?

Ms. Kane: I am not aware of any such document.

Senator Jaffer: That is good enough for me. Thank you.

I have a question, and I do not know to whom I should ask this. I want a clarification on the process between a regulation being set out, to it being gazetted, to instructions and how they get gazetted. I just want the process, please. Not a long reply, just one, two, three would be good.

Ms. Kane: I can provide an overview, but my colleagues from Citizenship and Immigration Canada may want to address that because I think it is in the context of those provisions that the issue arose.

Senator Jaffer: I just want the process. They were very clear on that.

Ms. Kane: I will leave it to them, if that is sufficient.

Nisrin Nasrallah, Counsel, Citizenship and Immigration Canada: In terms of regulations, a policy document published by the Department of Justice sets out exactly what kind of process it has to go through, and it includes pre- pub and consultation with the public and consultation with various sectors within the Department of Justice. It is a very formal process with formal time requirements.

With instructions, there is no such process required by the law, so it is up to the department to decide what kind of process they want to go through, although in Bill C-10 we have set out that it will be published in the Canada Gazette and tabled in the report to Parliament, so we know these will be legal requirements. Otherwise, it is policy how they want to do it.

Senator Jaffer: Just for clarification, normally instructions do not have to be gazetted, except if it is in the law?

Ms. Nasrallah: Except if it is in the law, but it is in the law. In the case of Bill C-10, we have said it will be gazetted.

Senator Jaffer: If it is a regulation, it goes to the committee for Scrutiny of Regulations?

Ms. Nasrallah: Yes.

Senator Jaffer: There is no scrutiny by Parliament?

Ms. Nasrallah: Scrutiny by Parliament? It could be scrutinized as part of the report to Parliament, because a report to Parliament has to be tabled setting out the instructions issued. It can be scrutinized at that point, but it is post rather than pre.

Senator Jaffer: I have two other things. I will be very short.

You had kindly agreed to give us the instructions that you have so far. There has been so much documentation that I may have missed it.

Ms. Nasrallah: We did provide them, and we can provide you with another copy afterwards.

Senator Jaffer: Thank you. You may have also provided an explanation on the references to "degrading and humiliating." I think Senator Chaput had asked that question.

Ms. Nasrallah: We did provide you with a document. Do you want me to talk about it?

Senator Fraser: We have not seen them.

Senator Jaffer: I have looked everywhere, but so much is coming through.

Ms. Nasrallah: They were provided by the department. I do not know where they are at this point.

Bradley Pascoe, Senior Policy Advisor, Temporary Resident Policy and Program, Citizenship and Immigration Canada: We do have copies, if you want us to leave them with the chair.

The Chair: Yes, that would be fine. Thank you.

Senator Lang: I would like to direct a question to one of the officials from the Department of Justice. I am not too sure who would want to respond.

I know you have been following the proceedings, and it has been very interesting for each and every one of us going through this grueling marathon. We are coming to the end, I understand.

One of the issues that has kept coming up over the course of the week was the question of mandatory minimums and comparing us to the American system. For those that oppose the legislation, there seems to be a message going out there that we are going to see a huge increase in our prison population, the sentences looking forward are going to be unfair and basically that Texas is moving to Canada, via one particular public broadcast system that you and I pay for.

I am wondering if one of you would give us a general outline, with the introduction of Bill C-10, of the comparison between our sentencing and that of the American side so it gets clarified for the viewers and the general public, if someone wants to report on it.

Ms. Kane: Senator, that is a very good question, but I would not be able to give you a comprehensive answer. It is very difficult to compare criminal justice systems across countries because you have to look at the whole system. We are aware that there are various mandatory minimum penalties in the legislation in other countries, such as the U.S., the U.K., Australia and so on. Some of them, as your committee has heard, also provide for some exemptions against those MMPs, but again, when you look at those exemptions, you have to look at exactly what your starting point was. We are aware of some very high MMPs in American federal legislation for some offences that may go as high as 20 years, and the exemption relieves against that slightly but does not eliminate it entirely. In some of those cases, it requires the offender to provide evidence to the state that they can use in other prosecutions. However, again, we would have to get into some very detailed research to provide the committee with a full understanding of that U.S. law and the various MMPs that apply.

When we have been developing MMPs for the Criminal Code provisions in Bill C-10 and the predecessor bills and in other legislation — for example, in 2005 there were MMPs with respect to child sex offences — we did look at current Canadian sentencing patterns and the concerns of people in the criminal justice system about sentencing, and we looked at similar penalties and ranges in other jurisdictions for guidance. Again, it is only for guidance in developing options for our minister to take to cabinet for approval of those options.

In our view, the MMPs that we have in the Criminal Code now and those that are proposed in Bill C-10 are tailored responses to the seriousness of the offences that they attach to, and they provide a starting point for courts to work within, recognizing that the principles of sentencing guide them within those parameters, the starting point and the maximum.

The Chair: On the point raised by Senator Jaffer and the documentation that was requested, there was emailed to each of us on Wednesday, February 22 — so you will find it in your systems — something from Citizenship and Immigration Canada headed "Ministerial Instructions." We have that. Then yesterday, February 23, emailed to each of us, again from the department, was a document entitled "Jurisprudence and Other References to the phrase `humiliating and degrading treatment."' We have that, and we thank the department for forwarding that to us. We will not circulate this. You have it in your systems.

Senator Runciman: Yesterday, I think it was, or perhaps the day before, we all received a copy of a letter from the Minister of Corrections in Ontario talking about compensation for increased Ontario costs as a result of the possible implementation or the implementation of Bill C-10. There has been so much documentation, but I thought I read that there was a federal-provincial-territorial agreement with respect to increased costs transferred as a result of federal initiatives, that there would be a five-year review, that the five-year review would be used for the purpose of assessing any new costs and that this is a process that has been agreed to by all players. Is that the case? I will not get into any political comments, but is that actually the situation?

Ms. Kane: The issue arose quite recently at the meeting of FPT ministers at the end of January. I am not exactly certain if there was an agreement for a five-year review. I can check the record of decision and advise you on that issue when we return on Monday. If I recall correctly, certainly some of the provinces and territories had indicated that they wanted the costs to be looked at on an ongoing basis as they were implemented. I am not sure if there was an agreement reached that that would be done.

As the minister indicated when he appeared earlier this month, there was also quite a bit of strong support for particular elements of the bill and, in general, for the underlying spirit of the bill, despite the fact that provinces had indicated concerns about their ability to implement the provisions given their current budgetary situation.

Senator Runciman: I was just wondering, if the five-year review is an actual fact, why the minister sent the letter. That is another issue.

Ms. Kane: I can check that.

Senator Fraser: On the whole provincial implications thing, I was also struck by the letter we got from Prince Edward Island saying, among many other things, that the demand for adult custodial beds there has been increasing by almost 15 per cent per quarter, in large measure due to recent amendments already passed to federal legislation and a change in their client profile. The problems that various provincial jurisdictions face are already real, and who knows what is coming in the future now. We also have data from Quebec about their estimated cost increases. It is quite impressive.

A witness this morning said it was her understanding that at least significant portions of this bill would not come into force until there had been federal-provincial consultations. I do not remember if she actually said agreements. I went back and looked at all the coming-into-force sections that I could find on a quick run through of the bill and I did not find any reference to that.

First, am I wrong? Is there something to that effect in the bill? Second, is there, as far as you know, any agreement about coming into force being dependent upon federal-provincial consultations and agreement?

Ms. Kane: To clarify that point, I think what Ms. Rosenfeldt was referring to with regard to the specific coming- into-force clauses in the bill was that there would be staggered implementation and it would not all come into force on Royal Assent. I do not want to put words in her mouth, but I think that is what she was referring to.

Senator Fraser: She did actually refer to the provinces.

Ms. Kane: Yes, and at the recent FPT ministers meeting in January that issue was discussed. It is an issue that is always discussed when amendments to the Criminal Code are about to be proclaimed or are close to possible passage and Royal Assent, because we count on the provinces for the implementation of Criminal Code amendments. It is a partnership.

That issue was discussed and several provinces indicated that they would need time to implement the provisions, which is also quite customary. The ministers did agree that, following Royal Assent, they would engage in consultations with the provinces to ensure that they are as prepared as possible for the implementation. It is certainly not contingent on any funding arrangements. As I say, this is the customary approach. We want to ensure that the provinces are prepared to implement, and legislation comes into force four to six months after Royal Assent in the ordinary course of events. Whether that is what the provinces have in mind remains to be seen, but we will be having those discussions with them.

There are two parts of this bill that do come into force on Royal Assent. One is the provisions with respect to victims of terrorism and the other is with respect to the former Bill C-23B. The rest would come into force on a day or days to be fixed. It will not all be on the same day. It can be on different days of a given month or over a few months.

Senator Baker: I want to thank Paula Kingston, Catherine Kane and Paul Saint-Denis for spending so much time at our committee hearings, day and night, far beyond the call of duty.

The Chair: They are probably all entitled to parole at this point.

Senator Baker: I have a general question arising out of the answer given by Ms. Kane to Senator Lang. I would not have raised it, but she has. It is with regard to mandatory minimums in the United States and in Canada. We have heard a lot of evidence, and you can imagine that senators around this table are wondering whether we would be successful in proposing an amendment to the mandatory minimums to give judges some discretion regarding persons with mental challenges and Aboriginal offenders.

Ms. Kane, you recited the cases in the United States, generally speaking, about the application of mandatory minimums. Does a general provision exist in each or any of those jurisdictions in the United States that would absent, on judicial determination, classes of people who have mental disabilities, are Aboriginal offenders, or are of a group of persons that is presently overrepresented in the prison system?

If we were contemplating, as you can imagine certain members of this committee we are, introducing such amendments, given that there are presently mandatory minimums, as the minister points out, in close to 40 locations currently in law, can you foresee any objection to introducing an amendment that would apply across the board in the sentencing provisions of the Criminal Code to effect either of those objectives?

Ms. Kane: I will break that question into two parts, if I may.

You asked whether other jurisdictions had specific exemptions based on Aboriginal status or mental health needs alone. We have looked at how other countries provide for some exemptions. They are all very different and it is very difficult to draw comparisons to the Canadian criminal justice system. The ones that we have seen generally have a more generic escape clause/exemption clause, some of which reduce the MMPs but do not eliminate them altogether, and some of those MMPs are significantly higher than any we have in the code now or propose.

The one that might be closest to what you mentioned in U.S. law is the state of Maine which has a provision that the court may suspend a minimum sentence if it is of the opinion that the exceptional features of the case justify the imposition of another sentence after considering the nature and circumstances of the crime, the physical and mental well-being of a minor, and the history and character of the defendant, i.e., the accused. That would take into account some consideration of mental health needs.

As I mentioned, there are others in U.S. federal law that reduce high mandatory minimums where the accused gives evidence against another person, that is, assists law enforcement in investigating other crimes. It is sort of a reciprocal arrangement to solve bigger crimes, including criminal organization offences.

With respect to the appropriateness of including an exemption clause for mandatory minimum penalties that exist in the code now or that are proposed in Bill C-10, I will leave that for your consideration. However, I would say that these are complex issues in terms of how this would be structured. Whether a person's status as an Aboriginal is sufficient to justify not getting a mandatory minimum sentence imposed is a complicated issue because many other factors have to be considered, including the nature of the offence, whether public safety is at stake, and so on.

Similarly, with respect to the mental health notion of an exemption, there is an underlying assumption that a person can be referred to a treatment program and that would solve something. It is not quite analogous to the drug treatment court option because with the drug treatment court the exemption is to address the addiction that caused the offending behaviour, and there are evaluated programs with respect to drug treatment. Mental health needs are varied and there is not one universal program that would address the needs of various offenders. It would have to be a tailor-made approach, and a referral to a mental health treatment program may not be the silver bullet in all cases.

Obviously the treatment is important, but with respect to whether that should alleviate against a mandatory minimum penalty for a serious firearms offence or a drug offence that has aggravating factors, or for a sexual offence against a child, is a difficult decision for the government and parliamentarians to make.

Senator Baker: For those of us who have been here for 40 years watching changes being made to the Criminal Code our major problem is that we already have a provision in the code that is basically structured on what you have just described as it relates to Aboriginal offenders.

In other words, "give consideration to" are the words that are used, and that comes at the end of a description of the offences and is restricted to certain offences, exactly as you describe. That is our problem in transplanting that into a provision which would offer some discretion to the judge in the implementation of mandatory minimums under the sentencing provisions.

Do you have any comment on that? It is a great conflict in my mind and I am sure in the minds of other people who follow these cases, and who read daily the judgments of the court in which the court is saying that there is inherent discrimination against Aboriginal people in the justice system. We see this with judge after judge after judge. Then it is saved by section 1 or a judgment is made that it does not violate section 7 and it does not violate section 15 of the Charter.

We have that provision there in the Criminal Code. This goes against that. This negates that. Is there any way of transplanting that provision of consideration? I do not know if you want to comment on that. I do not know if you want to go down that road. It is up to you.

Ms. Kane: Perhaps just for clarification, senator, are you referring to section 718.2(e)?

Senator Baker: Yes, all together.

Ms. Kane: That provision, when you read it, it applies generally. It is a sentencing principle that applies to the sentencing of anyone.

Senator Baker: Yes, but it says especially Aboriginal.

Ms. Kane: Especially to take into account the circumstances of Aboriginal offenders. The courts have interpreted that provision many times and, as some of the witnesses have indicated, courts do take into account the circumstances of Aboriginal offenders. They have to do so in the parameters of the sentencing set out in the Criminal Code. If there is a mandatory minimum penalty then they are taking into account the circumstances, given that they have a new starting point, being the mandatory minimum penalty.

Senator Baker: Exactly; over the mandatory minimum, yes.

Ms. Kane: It was never meant to be an exemption from the mandatory minimum as a principle. The courts have said that in the cases of serious offences there may not be significant differences between the sentencing of Aboriginal offenders and others, and that has been recognized, despite the awareness of the disproportionate number of Aboriginal offenders in the justice system.

Senator Baker: Do you have any other comments?

Ms. Kane: The only other thing I would add is that it is at the sentencing stage that people often describe as the back end, but there are a lot of programs and expansion of those programs has been encouraged for front-end diversion, alternate measures, our own Aboriginal Justice Strategy is encouraging community justice sanctions for the less serious offences and funding some very effective programs in a number of communities across Canada.

Senator Baker: I get your point, but some of us are struggling with the reality that under the bill, if you read the bill word for word under the Controlled Drugs and Substances Act, for example, a second offence, a designated offence is committed by a simple exchange of a joint 10 years ago. If that person exchanges a pill they would then come under the mandatory minimum under Schedule 1.

It is fine for us to say, yes, this is for very serious offences, but on a clear reading of the law and a clear understanding of what the judgments of the courts have been on the exchange of single items, like pills and joints and so on, you come to the conclusion that someone can be caught up in this and go against the principles, not just of the Supreme Court of Canada in Gladue, but against the principles when we brought in that section of the Criminal Code that you just referenced regarding sentencing. Therefore we have a problem with it. It is not just serious offences we are dealing with here that get the mandatory minimum. Yes, they are serious; do not get me wrong. You should not be exchanging pills, especially ecstasy pills, but some of us believe there is an element of entrapment in these things as far as the investigations are concerned. However, that is another question.

The Chair: Senator Baker.

Senator Baker: Sorry, I am going down the road. I am going too long. It is a problem I have.

The Chair: You do not have to recoil. I am okay.

I was just going to say that you are right; those are issues. I am just wondering, though, is there anything in particular that the witnesses can answer to? Is there a clarification that is needed from the perspective of the Justice Department on the legality?

Senator Baker: I was asking the Justice Department what we are to do faced with this reality. There is a conflict. I can understand where you are coming from, Ms. Kane.

Ms. Kane: Would you like me to tell you? No, I could not, I would not, but just to clarify, though, in Bill C-10, with respect to the mandatory minimum penalties for the drug offences, they are based on aggravating factors. The Crown would have to prove the aggravating factors.

Senator Baker: I told you what the aggravating factor was — the exchange of a joint.

Ms. Kane: The subsequent offence.

The Chair: That is the act.

Senator Baker: No, that is the aggravating factor that she is talking about. Then if you exchange one pill, that is the offence.

Ms. Kane: Not to be argumentative, but just to clarify the point, the mandatory minimum penalties for the drugs are based on aggravating factors which the Crown has to prove. There is also the exemption for those offences for the drug treatment courts. The mandatory minimum penalty can be relieved again. If your scenario is the Aboriginal offender who is charged with a drug offence, then the exemption is available if that person is going to go to a drug treatment or any other treatment program if they are eligible for that program.

Senator Baker: Drug treatment then will not apply the mandatory minimum, but if you cannot get into drug treatment it applies.

Ms. Kane: Or another program.

Senator Baker: Or another program.

Ms. Kane: As it is worded, you can be referred to a drug treatment court which has certain hallmarks of a drug treatment court, or any other drug treatment program approved by the Attorney General of the province. If there is no drug treatment court because you are not in Vancouver, Edmonton or a major urban centre but there is another program you can be referred to, your sentence is delayed, you go to the program; if you are successful the judge does not need to impose the mandatory minimum penalty. That leaves the only other part of Bill C-10 dealing with mandatory minimum being the child sexual offences.

Senator Baker: Let us talk about drugs.

Ms. Kane: Fine, then for drugs there is an exemption possible.

The Chair: Are you okay with that?

Senator Baker: I am not okay with it, Mr. Chairman, but I am going to leave the subject.

The Chair: I have a supplemental with regard to one of your earlier comments, senator.

You refer to some of the constitutional issues that were raised by some of the witnesses. I can think of the Canadian Bar Association and Bureau du Québec and their view of the constitutional difficulties with some of the provisions of Bill C-10.

Not to put words in your mouth, but undoubtedly you have considered, as you do with all bills, the legality of the bill from all perspectives. There were a number of times, for a number of different aspects of Bill C-10, that issues, especially the constitutional issues, were raised. As lawyers, that is to be expected. It happens all the time.

Are there any issues there that we need be concerned about? Can we have comfort that, in your opinion, the bill will satisfy the constitutional requirements?

Ms. Kane: Yes, as the ministers indicated when they appeared, as with all legislation, they look at it to ensure that it complies with the Charter. This bill includes nine bills, all of which were assessed for Charter compliance initially and again as they were grouped together. We are aware that with every piece of legislation there will be Charter challenges. This has happened since the advent of the Charter. Most legislation is challenged. We fully expect that the provisions will be challenged and our challenge then is to defend them to the full extent possible. We are confident that we can do that.

Senator Jaffer: I forgot to ask a question on the UN Convention on the Rights of the Child. You heard my questions to the minister. You heard my questions to you and we have had private discussions. I just have this one clarification. Has there ever been disclosure of the child assessment?

Ms. Kane: Not to my knowledge, no. That is advice that is provided to the minister in the development of options for law reform.

Senator Jaffer: I will ask this again, if you do not mind.

I get all these emails of people saying that in the past — and I am not that familiar — people have seen it in previous bills.

Ms. Kingston: The assessments done in terms of preparation for cabinet are one thing, and they are not disclosed, but many times there will be assessments done for different purposes, for example, reporting to the UN on Canada's compliance with the obligations under the UN Convention on the Rights of the Child. There will be a full assessment carried out for that purpose, and that is certainly public. It could be something like that.

Senator Jaffer: When you talk about reporting to the UN, I have seen the document you provided in February. The reporting on the Convention on the Rights of the Child will be in September?

Ms. Kingston: Yes.

Senator Fraser: Just for the record, I think what the previous discussion with Senator Baker was about was the section of Bill C-10 that says, with respect to drugs, you are liable to a minimum punishment of imprisonment for a term of one year if, among other things, you were convicted of a designated substance offence within the previous 10 years and now you get another.

Senator Baker: Which is a joint.

Senator Fraser: Which is a joint. It could even be a joint twice, a joint 10 years ago and a joint again today.

Senator Baker: You need a pill the second time under Schedule 1.

Senator Fraser: Schedule 1 or 2.

Senator Baker: Yes, but it must be a certain amount.

Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Or a very large joint.

Senator Fraser: In connection with pardons, several of them, one of the grounds upon which you can be made ineligible ever to receive a record suspension is if you committed more than three offences, each of which either was prosecuted by indictment or was a service offence, et cetera, and for each of which you were sentenced to imprisonment for two years or more.

I want to know if those are three offences essentially committed on three separate occasions or whether it would apply to someone who, for the sake of argument, had a really bad day at the age of maybe 19, went out and got drunk on a Saturday night, got into a bad fight in a bar, and having committed some damage to his opponent, rushes out, steals the nearest car, drives it recklessly down the road and does some terrible damage, maybe decides to set light to the local library, but all because he got drunk on a Saturday night. Will he ever be eligible for a pardon?

Mr. Churney: That was certainly something that we took very careful consideration of because the minister was very concerned about that particular example of someone having one bad day. Therefore, we were very careful to construct the provision so it would be based on convictions for three separate offences, where each of those offences would render a term of imprisonment of two years or more.

Senator Fraser: In the example I cited, you could face three or more serious charges.

Mr. Churney: Correct, but what is important is the result. The ineligibility is not based on the charges, but there would have to be three convictions that would result in terms of imprisonment of two years or more. It is not just three charges; perhaps only one conviction is rendered out of that series of a bad day.

Senator Fraser: You would have three convictions out of the bad day, or more. We will think about that one.

A little further on, we have the provision — I should specify that you do not ever qualify for a pardon if you have committed an offence in Schedule 1, unless some of the exemptions apply to you.

Then we have this nice paragraph that says:

The Governor in Council may, by order, amend Schedule 1 by adding or deleting a reference to an offence.

In other words, the cabinet could just decide to add in whatever offences it pleases to Schedule 1, and orders-in- council are the closest we have, I suppose, to arbitrary government decisions. There does not have to be public consultations; they just happen. This strikes me as very unusual and quite a sweeping power to give to any government. Is there any parallel for that kind of power elsewhere in Canadian law?

Mr. Churney: I am not certain with respect to a parallel, but I believe the government's rationale, as new criminal sanctions come into effect, for example new Criminal Code offences, oftentimes it can be a very lengthy process to adjust legislation. For example, some of the CCRA amendments that are in Bill C-10 have been pending in some way or another for about 10 years. Simply, they are technical or housekeeping amendments we have been trying to correct. Because various bills have died in previous parliaments, we have not been able to achieve them.

Therefore, the reasons for that particular provision are so the schedules could be updated more regularly and not have to wait for legislation, which could take years to come into force.

Senator Fraser: If you are creating a new offence, you are doing it by legislation, so why not build in a section that says "this offence is now included in Schedule 1 of this act?"

Mr. Churney: I can only come back to the fact that that was the government's path to choose.

Senator Fraser: Okay. You are not responsible for government decisions.

Mr. Churney: No.

Senator Fraser: However, you can give me the technical information.

Is there any research available that would help to inform us in understanding the background to the decision to lengthen the amount of time that must elapse before one can apply for a pardon, now going to five years on summary conviction and 10 years by way of indictment?

Again, obviously at the end that was a policy decision. You do not comment on those, and I would not ever wish to ask you to do so, but have we got any studies or data that would help to inform us as we contemplate this?

Mr. Churney: Similar to what Ms. Kane said in reference to MMPs, the same is more or less true with respect to pardon schemes in that internationally, there is much variation in terms of how pardons are administered, whether there is an ineligibility period that someone has to fulfill and what that length of period is. I would say that Canada's context is unique and there are no easy parallels to really draw on.

In respect of the decision to move to five years for summary conviction offences and 10 years for indictable, I know that the government was very concerned about finding the appropriate balance. However, really, at the end of the day, the minister decided that was the right balance.

Senator Fraser: I think I only have one last question, which maybe comes in two parts.

In relation to electronic monitoring devices, we heard from the Privacy Commissioner, and indeed the study on the pilot project confirms, that at least in the current state of technology, those electronic monitoring devices can, do not necessarily, but can give quite significantly inaccurate results. The report said that one person reported mislocation or drift, I think they called it, of 200 metres, which could be very serious, for example, for an offender who has been told to stay away from parks or bars in a city. They could quite likely be within 200 metres of that kind of place if you get the wrong reading on your device, if you see what I mean, and 200 metres is a significant distance.

My first question is, do you know if consideration is being given to having this section come into force only after we know a bit more about improvements in technology?

Second, is there an appeal mechanism for an offender who is told by Corrections Canada, "You were someplace where you were not supposed to be," or, "You did something you were not supposed to do," and the offender says, "No, the machine is lying"?

Mr. Churney: I will address your second point first. There would be an appeal mechanism at the initial point of instruction, where someone is told he or she needs to wear an electronic monitoring device; someone can make written representation at that point in time. However, with respect to someone already wearing the bracelet who says, "That is not the case; I was not where you say I was," that becomes a discussion for the offender, the parole officer and the correctional service, so there is not a legislative intervention at that point in time.

With respect to the provision generally, it will come into force, along with the other provisions, on a date to be fixed along with the other CCRA provisions. That said, the minister has been very clear with the correctional service that his expectation is that electronic monitoring would be used when there is scientifically verifiable equipment and the technology issues have been mitigated and worked out. I would anticipate that there would be further pilot projects or a pilot project in the future. I do think that there are still, as you say, a number of issues to be worked out. I would not necessarily assume that the day after coming into force, electronic monitoring would just simply be used right away.

Senator Fraser: As I said earlier, I was trying to whip through the coming-into-force provisions this morning, but I cannot remember what I read about that particular one. Would it be possible to carve out the coming into force of that section and make it different from all the others of this part?

Mr. Churney: I suppose if that is a motion the committee wanted to make to the government.

Senator Fraser: I am asking whether that could be done legally.

Ms. Kane: Where the coming into force clause says "day or days," that gives quite a bit of latitude in terms of specific parts coming into force on one and another coming into force a month later or some reasonable time thereafter. We have seen that in other Criminal Code reforms in the past. I cannot say for sure that that is what this says.

Senator Fraser: I think it does. I think in clause 166 it says "day or days." No, wait a minute; I am in the wrong part. We will look it up.

Senator Baker: I wanted to clarify a point, just so I am saying something that is not wrong. I do not want to be wrong on what I think is in the bill. I would like some clarification on it.

It is my understanding that under the Controlled Drugs and Substances Act with this amendment, someone who is convicted of trafficking in a Schedule I offence, which would be, in the case of an undercover operation, an ecstasy pill at a rave, which we have many examples of, with a police investigation, and the aggravating factor — as Catherine Kane keeps repeating, there must be this aggravating factor — in a case could be that a person was convicted of a designated substance offence within the previous 10 years. A designated substance offence, if my memory serves me, is any offence under section 4(1) of the Controlled Drugs and Substances Act, which means an exchange — any trafficking of any amount. It could be a joint of marijuana.

We have the offence under this bill of the exchange of an ecstasy pill, the aggravating factor being the 10 years previous exchange of a joint. That person under this bill, is subjected to a mandatory minimum sentence of one year, and if committed on the campus of a university, at a rave, of two years in jail.

Am I right or am I wrong in that assessment?

Mr. Saint-Denis: I would say you are partially right and partially wrong. On the assessment of the initial example, yes, you are correct. The aggravating factor of the trafficking in a joint within the 10-year period of the second offence of giving an ecstasy pill, which constitutes trafficking, would be caught by the minimum penalty, so the one-year minimum would apply.

Senator Baker: Good.

Mr. Saint-Denis: With respect to the second, that is to say a rave close to or on a university campus, I am not so sure that that would apply. There the judge would have to make a determination as to whether or not a university is a place where youth under the age of 18 are frequently found. That would have to be a fact situation for the judge to decide.

Senator Baker: If it were a general university, then you would find people there of 17 or 18 years of age, but if it were a school of law or medicine, perhaps not. I am correct that the mandatory minimum of one year applies in the case that I had outlined. Of course, whether or not it is two years would depend upon a determination of the other factor by the court.

Mr. Saint-Denis: The other thing, of course, is that with respect to the first part of your example, where there is a pill given —

Senator Baker: Or bought.

Mr. Saint-Denis: Or bought — well, not bought; you mean sold. The buying of the pill is not an offence.

Senator Baker: Sell is not covered, but bought is; that is right.

Mr. Saint-Denis: Sell is covered, but bought is not. Then it is possible that the judge, if the circumstances merit it, would be able to impose or propose treatment for the individual who has given the pill, in which case, then, at the end of the day, the judge might not impose the minimum penalty if treatment is imposed and the individual successfully completes that.

Senator Baker: We know that. We have been preached to here in this committee that if you go to a drug treatment court or you are into treatment, yes, you would be excluded. However, I was not considering that. I was just considering what is word for word, in this legislation, and you have answered the question well, as always.

Senator Lang: I would like to follow up to clarify. This is of concern, Senator Baker, obviously, just like the rest of us do not want to see someone go to jail for a period of time when assessing all the factors involved here. There is discretion within the court to send that individual to the drug treatment program and subsequently then that would not apply. Is that correct?

Mr. Saint-Denis: Yes, that is correct. If an individual, and this is a real world thing rather than a legal issue, within a 10-year period has either given or trafficked in a joint and subsequently is found to be giving pills, a pill or several pills, one has to wonder where this individual comes from, in terms of his illegal activities. If, 10 years after the initial offence, he is still in the business of giving pills, some people might think that there is more there than just the possibly innocuous, although I could have comments about the innocuousness of giving ecstasy pills. However, just in giving that pill, there may be more than just that surrounding this individual's activities.

Senator Lang: I would like to follow up further because my good friend Senator Baker — it almost conjures up this image of passing over an aspirin to someone, or Tylenol 3. The reality of it is that there are pills being given out that are killing people, for example, ecstasy pills. Let us move past that.

I am not a lawyer. However, let us say someone is dead; someone has been given a pill. I do not know if Senator Baker would call that trafficking or goodwill, but can they be charged for murder?

Mr. Saint-Denis: They might be charged with some form of homicide; I am not sure that they would be charged with murder. I think your observation is right, there have been deaths resulting from the consumption of ecstasy. It is unclear, however, as to whether one, two or more pills are involved. The thing about ecstasy is that it is not produced through legal means. In fact, like in many of these chemical drug exchanges, the buyer does not know exactly the composition of what he is buying. Often enough, the seller does not know because he is not making the pills, either, he is just buying a batch and selling them on.

Regarding the composition of pills, with ecstasy, for instance, there are a number of extraneous ingredients that go into the making of the pill. Some of the ingredients are not particularly dangerous, for example, you will find caffeine, or glucose, or things of that nature; however, there are instances where you will find methamphetamine used in ecstasy pills as part of the thickening agent. There are one or two instances where strychnine has been used — not in Canada, though, to my recollection. You are dealing with a serious unknown with significant risk attached to it.

Senator Frum: To go to a different topic, did you review the testimony of David Quayat? Could you respond to the suggestion that the justice for victims of terrorism act violates the constitutional division of powers and specifically that the private right of action is a provincial matter? He also says that the provisions of the act that alter the State of the Union Act could leave Canada in violation of international law. Did you have a chance to review that?

Larisa Galadza, Senior Director, National Security Policy, Public Safety Canada: Yes. I was here, actually, and listened to his testimony. First, the purpose of the justice for victims of terrorism act is to deter terrorism. The government believes that all elements of the act are legally defensible. It contains measures that are fully consistent with Canada's other counter-terrorism measures. I would echo what Ms. Kane said earlier about Charter compliance. It is the same in this case, in that that is always considered. It is before you today because the government believes that those provisions are legally defensible.

In terms of the international laws and implications under international law, we have a colleague here from the legal section of the Department of Foreign Affairs and International Trade, if you would like to hear from him. I would call Mr. Wendell Sanford to the table.

Wendell Sanford, Director, Criminal, Security and Diplomatic Law Division, Foreign Affairs and International Trade Canada: I am director of criminal security and diplomatic law in the legal bureau of the department. I was also here the other day when that panel was speaking.

Direct reference was made to the Germany-Italy case as an example of a situation which could result in Canada's proposed legislation being in violation of international law. We have reviewed that carefully. The case only came down on March 3, but it involved the question of sovereign immunity. It was determined in that case that Germany was not liable to Italian courts for torts; injuries to persons caused in the latter stages of the Second World War. That is because of the principle of customary international law of sovereign immunity.

We do not think that the current Canadian legislation is a match for that kind of situation. Any case which goes before the international court is a determination between the two parties. Unlike in Canada, where the Supreme Court would make a decision which would be binding on all provinces, when you go before the International Court of Justice, the two parties appear and it is a decision which is binding on them.

In the first instance, the decision is not binding on Canada; in the second instance, we do not think the current drafted Canadian legislation is similar in any way to the issue which was being discussed there.

Senator Jaffer: Maybe I am mistaken, but I understood that a cause of action is a provincial duty, not a federal one. That is what I thought they were saying, namely that the cause of action is something that is provincial.

Mr. Sanford: Both of those things were said, but that is the other group, not me.

Senator Jaffer: Can you clarify that, please?

Mr. Sanford: I cannot because I am in international law.

Senator Fraser: Could I ask you a question before you leave?

Mr. Sanford: Sure, go ahead.

Senator Fraser: I think I recall reading, when I first became aware of this case — and I have not had time to go back and find out — that one of the complicating factors was that there had already been some form of agreement between Germany and Italy, specifically. Italy was saying, "We do not care what we signed before. We are going to take you to court anyway," which obviously would not be the case in the context of what is proposed in this bill.

Mr. Sanford: Yes. The judgment goes for the standard 50 pages. Part of the judgment does address that specific issue. Italy was finding against German interests because, although there had been settlement agreements in the 1950s between Germany and Italy, they had not covered everyone. Certain groups in Italy decided that they had not been adequately compensated, so they brought cases. Of course, the other complicating factor was that there happened to be German-owned property in Italy which could be seized in satisfaction. Of course, Germany resisted that.

As part of the background to the judgment, you are exactly correct. Some groups of people had not been satisfied and that is why the whole process came into play in the first place.

The Chair: Mr. Sanford, to Senator Jaffer's point to the cause of action being a provincial matter, were you suggesting that Mr. Walma could answer that?

Mr. Sanford: No, not us. That is for the Department of Justice Canada. That is domestic law.

Ms. Kane: I believe Ms. Galadza should respond to that, given her overall responsibilities for the bill.

Ms. Galadza: It is true that property of civil rights is provincial jurisdiction; however, we must remember that the objective of this bill is the deterrence of terrorism and that the responsibility for the state immunity act is squarely in the federal jurisdiction.

Senator Jaffer: That is very laudable. I have been through this process of this bill before. I am glad that that is there, but will it succeed, because cause of action is provincial? I know you have said what you have said, but I will leave that in the air.

The Chair: Thank you, colleagues. That concludes our final panel in our consideration of Bill C-10.

I want to thank each of you. This has been somewhat of a unique experience for us to have this opportunity at the end to have this type of information and questions answered, so we thank you for that. As we move through clause by clause, had we not done it now, it would have come up at that time. I think it will move our process more effectively. Thank you so much. We appreciate it.

After four weeks of consideration and hearing in excess of 125 witnesses, hopefully covering all the key issues of Bill C-10, we will proceed with clause-by-clause consideration of the bill.

Before doing so, I will remind senators of a number of points. I know that senators from both sides are eager to ensure that in this committee we do the best work we possibly can so that when the Senate takes up this bill it has before it the best possible result.

If at any point any senator is not clear where we are in the process, please ask for clarification. We must do our utmost to ensure that at all times we have the same understanding of where we are in the process.

In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is going to be moved in a clause, "amendments should be proposed in the order of the lines of a clause." This is noted in Beauchesne at citation 697(2).

Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the chance to do so.

If a senator is opposed to an entire clause, I would remind that in committee the best process is not to move a motion to delete the entire clause, but rather to vote against the clause standing as part of the bill. On this matter, I refer senators to Beauchesne, citation 698(6), which notes that "an amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill."

I remind senators that some amendments that are moved may have consequential effects on other parts of the bill. It is very important that the committee remain consistent in its decisions and that they be consistently applied throughout the bill. I refer senators to Beauchesne, citation 698(2), which notes that "An amendment must not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision which the committee has given upon a former amendment."

In the spirit of this statement, it would be very useful to this process if a senator moving an amendment identify to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it could be very difficult for members of the committee to remain consistent in their decision making. Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there may, of course, have been no preliminary analysis of amendments to establish which ones may be consequent to others and which may be contradictory.

If members have any questions about the process or the propriety of anything going on, they can raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of the matter of order, and make a ruling. The committee is, of course, the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.

As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this reason, however, I will depend on your cooperation and I will ask all of you to think of other senators and keep your remarks to the point and as brief as possible.

Finally, I wish to remind honourable senators that, if there is any uncertainty as to the results of a voice vote or a show of hands, the route to follow is to request a roll call vote, which provides clear results. Senators are aware that any tied vote negates the motion in question.

I would also point out that — and we have had these discussions with Deputy Chair Fraser; it is a practice, but I am not sure if it is normally followed during clause-by-clause — because of the time that we have spent on this bill and the complexity in the matters involved in this bill, if there is any clause that I refer you to and if any member of the committee wishes to defer, postpone or stand that particular clause over for consideration, whether it be for amendment or any other purpose, they can request that and I will allow that, and then we would move to the next clause remaining.

Following a review of all of the clauses in that fashion, any that had been postponed or deferred or stood over, we would then consider them one at a time in the order in which they were deferred.

Colleagues, are there any questions on any of the above? If not, I believe we can proceed.

Senator Fraser: I believe our understanding is that clauses that stand deferred today will be taken up on Monday morning.

The Chair: Yes, that is true. That is correct. You remind me in saying that, senator, if there are any clauses that senators wish to have deferred, it may be that that deferral may impact another clause in the bill. If you are able to point that out at the time and request a referral of more than one clause but they relate to a common issue you have in mind, you do not have to identify the issue, you do not have to state the reason for the deferral, but that would make the process that much simpler.

Are there any other questions?

Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts?

Senator Fraser: For the record, I wonder if we could have the clerk read the title into the record in French. I am not going to do this for every clause but I think it is important for the title.

The Chair: Indeed; that is a good suggestion.

[Translation]

Shaila Anwar, Clerk of the Committee: The French title reads as follows: Loi édictant la Loi sur la justice pour les victimes d'actes de terrorisme et modifiant la Loi sur l'immunité des États, le Code criminel, la Loi réglementant certaines drogues et autres substances, la Loi sur le système correctionnel et la mise en liberté sous condition, la Loi sur le système de justice pénale pour les adolescents, la Loi sur l'immigration et la protection des réfugiés et d'autres lois.

[English]

The Chair: Is it agreed that the title stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed.

The short title of this proposed act is the Safe Streets and Communities Act. Shall clause 1, which contains the short title, stand postponed?

Hon. Senators: Agreed.

The Chair: Agreed. Shall clause 2 carry?

Some Hon. Senators: Agreed.

An Hon. Senator: Deferred.

The Chair: We have a request for deferral, which we will grant, on clause 2, from Senator Runciman.

Shall clause 3 carry?

An Hon. Senator: Deferred.

The Chair: We have a request for deferral of clause 3, which will be deferred or postponed.

Shall clause 4 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 5 carry?

An Hon. Senator: Deferred.

The Chair: On clause 5 there is a request for deferral. It is deferred.

Shall clause 6 carry?

An Hon. Senator: Deferred.

The Chair: Deferral requested and granted on clause 6.

Shall clause 7 carry?

An Hon. Senator: Deferred.

The Chair: Deferral request on clause 7, which is granted.

Shall clause 8 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 9 carry?

Senator Runciman: Deferred.

The Chair: There is a deferral request, which is granted, for clause 9.

Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 11 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 12 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 13 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 14 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 15 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 16 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 17 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 18 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 19 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 20 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 21 carry?

Senator Fraser: Deferred.

The Chair: Deferral requested and granted with regard to clause 21.

Shall clause 22 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 23 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Senator Fraser: Deferred.

The Chair: Was there a deferral requested?

Senator Fraser: Yes.

The Chair: Clause 23 was not carried. A deferral has been granted for clause 23.

Shall clause 24 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 25 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 26 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 27 carry?

The Chair: Agreed.

The Chair: Carried.

Shall clause 28 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 29 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 30 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 31 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 32 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 33 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 34 carry?

Senator Fraser: Deferred.

The Chair: Deferral request, which is granted, for clause 34.

Shall clause 35 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 36 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 37 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 38 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Proceeding to sections that pertain to the Controlled Drugs and Substances Act, shall clause 39 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 39.

Shall clause 40 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 41 carry?

Senator Fraser: Defer.

The Chair: Deferral request in respect of clause 41 is granted.

Shall clause 42 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 42.

Shall clause 43 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 43.

Shall clause 44 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 45 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 46 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 47 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 48 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 49 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 50 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 51 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 52 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 53 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 54 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 54.

Shall clause 55 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 56 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 57 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 57.

Shall clause 58 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 59 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 60 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 61 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 62 carry?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 63 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 64 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 64.

Shall clause 65 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 66 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 67 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 68 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 69 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 69.

Shall clause 70 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 71 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 72 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 73 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 74 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 75 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 76 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 77 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 78 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 79 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 80 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 81 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 82 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 83 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 84 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 85 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 86 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 87 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 88 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 89 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 90 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 91 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 92 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 92.

Shall clause 93 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 94 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 95 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 96 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 97 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 98 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 99 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 100 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 101 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 102 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 103 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 104 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 105 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 106 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 107 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 108 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 109 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 110 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 111 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 112 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 113 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 114 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 115 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 115.

Shall clause 116 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 117 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 118 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 119 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 120 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 121 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 122 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 123 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 124 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 125 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 126 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 127 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 128 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 129 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 130 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 131 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 131.

Shall clause 132 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 132.

Shall clause 133 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 134 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 135 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 136 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 136.

Shall clause 137 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 138 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 139 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 140 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 141 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 142 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 143 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 144 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 145 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 146 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 147 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 148 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 149 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 150 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 151 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 152 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 153 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 154 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 155 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 156 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 157 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 158 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 159 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 160 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 161 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 162 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 163 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 164 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 165 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 166 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 166.

Shall clause 167 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 167.

Shall clause 168 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 168.

Shall clause 169 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 169.

Shall clause 170 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 171 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 172 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 172.

Shall clause 173 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 174 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 175 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 176 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 177 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 178 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 179 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 180 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 181 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 182 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 183 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 184 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 185 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 185.

Shall clause 186 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 186.

Shall clause 187 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 188 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 189 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 190 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 191 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 192 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 193 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 194 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 195 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 196 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 197 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 198 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 199 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 200 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 201 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 202 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 203 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 204 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 205 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 206 carry?

Senator Fraser: Defer.

The Chair: Deferral request granted in respect of clause 206.

Shall clause 207 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 208 carry?

Hon. Senators: Agreed.

The Chair: Carried.

Colleagues, we will deal with the schedule after we deal with all of the deferrals, which, obviously, we have to go back and do. As Senator Fraser asked at the outset about deferrals, we will deal with those beginning on Monday, and we will follow through in the order in which we have deferred them.

On Monday as well, when we have completed our consideration of the bill and each of the deferrals, as you know, there is the opportunity to consider observations to the bill, which do not impact the bill but are simply observations that we, as a committee, wish to make and draw to the attention of the appropriate ministries. We will deal with that as well on Monday.

I believe that concludes our work, then, for today.

Senator Fraser: Mr. Chair, I know everyone is dying to get out of here —

Senator Angus: No. We are willing to proceed.

Senator Fraser: I wonder if it might be worth having a five-minute in camera session, because I am assuming it will be the Library of Parliament that drafts observations. If we have observations of any length at all and we want them to do them all on Monday, that, from a standing start, that might put a bit of a burden on them. I do not know how you would feel about going in camera for literally five minutes so people say, "I think we should do something about this point, this point, this point."

The Chair: I think to have a discussion about that in camera would be a good idea. I think it would not be appropriate to have discussion around the observations because we have not considered the deferrals and what those may involve. I think we can have an in camera discussion, if someone wished to point out some issues, to bring them to the attention of our colleagues, and over the weekend if they could keep those thoughts in mind when we arrive here on Monday.

Colleagues, is there anything more on the process, any questions about that? Good. Thank you for that. We will suspend for a moment and then go in camera. I would propose that the staff of committee members are able to remain in the in camera session. If you agree, I would entertain a motion to that effect.

Senator Fraser: So moved.

The Chair: Thank you. Our guests at the end of the table, we will see you Monday at 8:30.

(The committee continued in camera.)