Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 39 - Evidence for June 6, 2013


OTTAWA, Thursday, June 6, 2013

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders), met this day at 10:32 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Good morning. Welcome, honourable senators, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.

We are meeting today to continue our examination of Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders). This is our third meeting on this bill. As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the parliamentary website, parl.gc.ca. You can find more information on the schedule of witnesses on the website under ``Senate Committees.''

For the first panel today to continue our deliberations, we will welcome back Howard Sapers, the Correctional Investigator of Canada; and Ivan Zinger, Executive Director and General Counsel for the Office of the Correctional Investigator.

Mr. Sapers, you have some opening comments, I understand. Please proceed.

Howard Sapers, Correctional Investigator, Office of the Correctional Investigator: Thank you very much, chair. Good morning, senators. It is always a pleasure to appear before this committee. Today, of course, we are here pursuant to the study of Bill C-350. As mentioned, I am accompanied by Dr. Ivan Zinger, Executive Director and General Counsel from my office. I will try to be brief, but, as these things happen, this small bill is becoming more and more complicated in my mind. I will try to stick to my notes.

The issue that Bill C-350 addresses is important. Part of an offender's reintegration should include the satisfaction of debts to the best of his or her ability. As I made clear before the house committee last May in the context of its study of this bill, my concern continues to be about the application, scope, and potential administration and cost of debt recovery mechanisms in the proposed legislation, not to mention the potential for creating additional barriers to community reintegration.

I understand that the bill has been substantially amended from its original form and it now includes some important clarifications. First, the legislation applies to debts for which the Correctional Service of Canada has received a formal legal notice. Second, the onus will be on an individual to provide formal legal notice rather than CSC to have to search for debts owed by an offender. Third, it has been amended so that the debt repayment scheme does not interfere with payments made pursuant to the Indian Residential Schools Settlement Agreement.

These are important amendments. However, questions persist about how a debt recovery registry would work in practice; how much it would cost to implement; how it would be maintained; and how it may impact reintegration.

Committee members are aware that there are current mechanisms in place that allow the Correctional Service of Canada to register known restitution and fines levied by the courts against federal offenders. Thousands of such registrations are currently on file. Bill C-350 would effectively require the CSC to establish a tracking system to administer child or spousal support orders, as well as other debts owed as a result of an award by a court of competent jurisdiction.

There has also been some confusion created in my mind based on recent testimony before this committee, including comments made yesterday by the Correctional Service of Canada with regard to what in essence would be a two- pronged approach to debt recovery, and that the scheme proposed in this bill would be easy to administer because there is only a handful of applicable awards in any given year. In fact, I think it was stated yesterday that there were only five such examples over the last five years.

This two-pronged approach, first, is consistent with the proposed legislation in that it requires creditors to register. That seems clear enough.

I have some questions about the second approach. It suggests that there is a post-award scheme that would be created that would see the Correctional Service of Canada reach out and inform some creditors. Maintenance enforcement programs were given as an example. My concerns and confusion are as follows: All creditors could register when they become aware that the debtor is serving a federal sentence. This could actually be tens of thousands of creditors over a five-year period. Over 20,000 offenders churn through the federal correction system every year, but potentially not all creditors would register. There could be some debt that the Correctional Service of Canada would not be aware of. This means that if a payment were made to a registered creditor, an unregistered creditor would be left empty-handed through this scheme. If the CSC actively seeks out unregistered creditors, it would be doing so contrary to proposed section 78.1(5), which makes it clear that the onus is on the creditors to register. I am not sure how this is going to work.

CSC could be proactive about debts arising from restitution orders, maintenance payments, et cetera, that have been noted in an inmate's correctional plan pursuant to the Corrections and Conditional Release Act. The Safer Streets and Communities Act, Bill C-10, amended the CCRA in section 15.1 to include that these kinds of debts must be included in an offender's correctional plan. However, they could and should be doing this anyway. Bill C-350 provisions are not necessary to accomplish this kind of collection, registration and notification.

I understand that this bill was suggested after a couple of high-profile cases. I appreciate that there may be a current impairment in recovering or garnishing some monetary awards that may be received by an offender under federal custody as a result of a legal action or proceeding by a federal court, tribunal or agency. However, the question remains: Is the creation of a complex and potentially expensive registry the most efficient or effective way to deal with a few high-profile awards, particularly when other mechanisms already exist? As I said, the aforementioned sections of the CCRA, and other provisions in federal statute, including the federal Divorce Act, et cetera, already make provisions for collection.

That said, I have a further concern about the capacity and ability of a federal inmate to repay outstanding monetary debts, restitution orders and victim surcharges and still meet their obligations to society and their families while serving a sentence in a federal penitentiary.

The fact of the matter is that the great majority of offenders in federal custody have very little money and very little capacity to earn money while incarcerated. An elaborate recovery scheme is not likely to provide much satisfaction to victims as most debts will likely remain unpaid or unpayable. Even the courts recognize these realities when imposing fines or making victim restitution orders or surcharges.

Let me provide some context that may help inform the committee about the capacity of inmates to repay debts or meet ongoing family obligations while serving their sentence.

The maximum an offender can earn in a federal penitentiary while gainfully employed or engaged in correctional programming was set at $6.90 per day in 1981. It remains the same rate today, more than 30 years later, and has never been adjusted for cost of living or inflation.

Inmates in federal institutions are provided basic institutional clothing and personal hygiene products. Anything over and above that must be purchased by the inmate with their own money. An established list of goods is available to the inmate population. These goods are made available at a 10 per cent profit margin over regular retail. In 1981, a standard basket of canteen items that could be purchased would have cost $8.49. In 2005, that same basket of goods was estimated to cost $61.59, representing a 725 per cent increase in cost — no increase in income.

Over the last three years, reductions in non-essential health care services previously provided by CSC has placed an additional burden requiring non-prescription items, such as Tylenol, medicated shampoo, and creams and lotions for skin conditions to be purchased through the inmate canteen. Just to give you an example, a 100-millilitre bottle of Buckley's cough syrup sells in the institutional canteen for more than a day's wage.

Other potential deductions from offender pay include institutional fines, inmate welfare committee funds, phone calls home, and room and board payments.

As part of the changes announced by the Minister of Public Safety in May 2012, beginning this fiscal year, federal inmates will be paying more for room and board and telephone administrative charges. The ``top earners'' — if I can call them that — inside a penitentiary will contribute 25 per cent of their inmate pay for room and board deductions.

I note also that incentive pay for inmate labour has been eliminated.

Once released, offenders may face many expenses, such as the cost of obtaining new ID, renewing a driver's licence or applying for a pardon. The fee to apply for a pardon, now called a record suspension, has recently increased from $150 to $631.

Most offenders have no savings and their earnings capacity inside a federal institution is extremely limited. There seems to be little point in diverting earnings that at best will only minimally support their release. It is not unusual for a released offender to be facing thousands of dollars of accumulated debt and only limited employment prospects. I would hate to see precious CSC resources tied up for an enterprise that may actually cost more to administer than what can be reasonably expected to be recovered.

I appreciate the important message that Bill C-350 conveys. My concern lies not in this example but rather in the practical administration of the proposed legislation.

For example, subsection 78.1, as it would be amended by this bill, speaks to monetary awards. The majority of actions that may result in an award are actually settled out of court; in Ontario, I think it is something like 95 per cent. These settlements often include confidentiality agreements. These settlements would not be captured by Bill C-350, because they do not represent a decision by a court. This may impact on decisions of both plaintiffs and defendants who may want to minimize costs and administrative burdens, and maximize the benefit of a payment.

I am also concerned that the term ``creditor'' is not defined in the bill. This links back to my earlier point of confusion around the dual registry notification scheme the commissioner mentioned in his testimony yesterday.

Even if all of the definitions are made clear and the process is well articulated, we must depend on administrative excellence to ensure all the paperwork is right. If there is an administrative error, has CSC now created a new legal risk to the Crown? Who is liable if the records are incomplete or out of date? This is not just a hypothetical question; we receive many complaints every year about inaccurate file information from serving offenders.

Another potential problem could arise if CSC tries to pick winners and losers in family matters. We all know that family law matters can be complex and complicated. For example, an inmate may be currently married, with children, and divorced, and require to pay spousal and child support. Which set of family needs would come first, and why would CSC put itself between these competing interests when that would properly be the role of a court of competent jurisdiction?

I am finished, Mr. Chair. I thank you and I look forward to your questions.

[Translation]

Senator Boisvenu: I am trying to decode the message that you are giving us this morning. Tell me if I am not understanding your text.

Based on what you said, I decoded that this bill affects all income earned by criminals or persons who are incarcerated, whereas its intent is to target only income or earnings obtained through civil suits. This concerns exceptional cases, four or five cases over the last few years. I understand that the entire prison population will be affected, whereas only a small minority is targeted.

Yesterday, the lawyer for the Canadian Prison Law Association, Mr. Fineberg, said that the rights of criminals had to be the same as the rights granted to honest citizens. One can agree or not with this idea, but if the rights are the same, should obligations not also be the same?

Let us take the case of criminal who is incarcerated, who leaves responsibilities behind him, for example a spouse with children, and who receives a large monetary award because of a civil suit won while he is incarcerated. If he has the right to launch a civil suit while incarcerated, does he not also have the obligation to use this monetary award to meet his matrimonial obligations?

[English]

Mr. Sapers: Yes, senator. Thank you. You are absolutely right. The reason I raised the issue of inmate allowances for program participation, for example, the rate of daily pay and the cost of goods inmates can purchase, was to provide some context to the committee to gain a better appreciation of what life is like on the inside and how that translates into opportunities and chances on the outside — the amount of money that an inmate may or may not have access to. That context, I think, is important.

Should there be a monetary award and an inmate has a known debt, particularly if it is in a family matter, a restitution order or victim fine surcharge, that would be captured now in the correctional plan. We do not need Bill C- 350 to do that. That is already known. CSC, of course, would be aware of that money because of when it is deposited to the inmate's account.

[Translation]

Senator Boisvenu: You say that you agree, in principle, with the bill, but you do not agree with the method.

Do you agree with the principle of accountability? The bill makes the criminal accountable when there is a large monetary award granted outside of his work or training allowance, because in a penitentiary, those are the only two ways one can obtain this allowance, either through study or through work. Outside of that, money can be awarded through a civil suit.

Do you agree or disagree with the fact that, with this money, the criminal will have to live up to his family responsibilities? The priority of this bill is not to give the money to victims; that is what I would have liked. The priority of this bill is to use the money to meet the incarcerated person's family obligations, rather than have the state do it because that person is incarcerated.

[English]

Mr. Sapers: I have no disagreement, and I am quite happy to restate that, with the principle of offenders being accountable and paying their debts. The issue here is the mechanism. While I had some questions around how Bill C- 350 would be operationalized, those questions have now turned to confusion based on some previous testimony that was shared with this committee.

There is a burden in terms of administration and a new potential risk that I think, in my opinion, will outweigh the benefits of this bill. There are mechanisms that already exist — commissioner's directives, other federal statutes and sections of the CCRA that already exist — that would allow for CSC to properly see that those payments are made.

[Translation]

Senator Boisvenu: But the current mechanism does not allow for the garnishment of more than 25 per cent of the incarcerated person's income, whereas the bill would take much more than the 25 per cent authorized by the law; it could take 50 per cent or 75 per cent of the award won through a lawsuit. The mechanisms are under the desired threshold. Do you agree with that?

[English]

Mr. Sapers: The 25-per-cent limitation applies to a calculation for inmate contributions to room and board. The satisfaction of another debt, whether it be to a maintenance enforcement program, victim fine surcharge or restitution order, are not subject to that restriction. There are, however, other restrictions on inmate money.

Inmates are only allowed to have a certain dollar value of personal goods in their cells, capped at $1,500. That would include clothing, books, a radio, a television set, et cetera. They are also only allowed to transfer a certain amount of money out of their inmate accounts four times a year, $500. That would include things like sending money home for birthday presents or Christmas presents, et cetera, for families. They are also only allowed to spend $69 every pay period, every two weeks, on things like the canteen goods that I was talking about.

Any of the other money goes into the inmate account. CSC is aware of that money and, if there is in the correctional plan a notation that maintenance enforcement money is owed or restitution orders are owed, that is part of the correctional plan as part of what the service already does and they already have access to that money. CSC also already registers, as I have said, thousands of these kinds of debts, without Bill C-350.

What Bill C-350 does is sets up, in my mind, a rather cumbersome and expensive process now that may not accomplish very much. In the testimony of the commissioner, it may affect five awards over a five-year period. My question is the following: If this proposal only affects five awards over five years, yet you are creating this complex, cumbersome, expensive bureaucracy to register potentially thousands of creditors who will probably be no better off for going through the process, then why do it?

Senator Jaffer: Thank you very much again, Mr. Sapers, for being here. You always make such a good contribution to our work.

I have two questions for you. As a young lawyer my boss, who used to be a Supreme Court justice, always used to say that when he was sentencing people, he always knew that you did not throw out the key. The majority of people return to society and the judge always thought about reintegration into society.

Yesterday we heard from Mr. Fineberg, who talked about how prisoners should also have rights. They are not bereft of rights, especially civil rights. Yes, they have made some mistakes, but they have rights.

We have had one bill after another taking away the rights of prisoners. As a Correctional Investigator, first, can you comment on what this is doing to the morale of prisoners? I know this is not, especially around here, a very welcoming comment that I am making, but I do feel that. I want your opinion on that.

Mr. Sapers: Thank you, senator. I cannot comment directly on morale of prisoners, although I think it is a valuable question to raise. What I can tell you is that in the last three to five years, we have seen a number of trends. We have seen increases in use of force, injuries and assaults, the use of pepper spray and institutional incidents. We have seen increases in things like sick leave. We have seen surveys of CSC staff that talk about the Correctional Service of Canada being a toxic work environment. We have seen a public service employee survey raising issues about confidence in management and leadership. We have seen all of these things and the trends are all going in the same direction.

Clearly there is something operating in federal corrections right now casting a cloud over the operation of penitentiaries, and it is manifesting itself in all of these things. It is hard to unpackage the causes for that, but clearly it has become a harsher environment inside federal penitentiaries.

Senator Jaffer: Mr. Sapers, after hearing the commissioner yesterday when he said five cases in six years, setting up a whole system for that is really confusing for me. I feel that this bill is transforming the correctional service into a collection agency. You said there is some form of collection already, but for five cases we are setting up a complete corrections agency to be a collection agency deciding who gets what.

I did not get a clear picture yesterday after hearing the commissioner as to how much money will be left aside for spouse and how the division will happen. I do not fault him; he has a lot of work to do. It is just that it is not clear as to how he will divide the money. I can just see a lot of creditors having to go back to court on this.

Mr. Sapers: I am concerned as well, as I said in my remarks, about the notion that the Correctional Service of Canada would not only become a collection agent, but would also now be in the position of picking winners and losers, of who gets paid and how much, and I do not think that is their role or responsibility. I am also concerned about the administrative burden.

It is interesting to me, senator, that one of my key recommendations over several years has been the establishment of a deputy commissioner for Aboriginal corrections. That has been rejected by the Correctional Service of Canada, primarily on the basis that it would create new expensive bureaucracy, in spite of the fact that there already is an Aboriginal programs directorate and all I am talking about is new leadership. Nonetheless, the service has said we will not do this because it is too bureaucratic and too expensive.

I cannot help but question the wisdom of creating an expensive bureaucratic debt collection and registry mechanism, which is not part of the core business of the Correctional Service of Canada, and yet maintain it is too expensive to have a deputy commissioner for Aboriginal corrections.

[Translation]

Senator Joyal: Welcome, Mr. Sapers and Mr. Zinger. To start, I would like to come back to the scope of the bill.

Section 2, which amends section 78.1, clearly defines that this is a monetary award that would have been obtained following a decision against Her Majesty in right of Canada. That means that if there is a decision made in favour of an inmate by any provincial court against Her Majesty in right of Canada, this does not apply. So, this does not apply; you are nodding your head, but that does not get recorded in the minutes.

Ivan Zinger, Executive Director and General Counsel, Office of the Correctional Investigator: You are absolutely right; what you have just said is correct.

Senator Joyal: So the bill would not apply to decisions like a ruling against, for instance, a provincial court of the Queen's bench, or to decisions made by a civil court in a private matter. For example, an inmate who was before the courts regarding an estate or for a matter involving the division of assets, and who wins his case, would not be subject to the bill.

Mr. Zinger: You are right again.

Senator Joyal: So this bill is very narrow in scope. Therefore, how does one generally manage, on a day-to-day basis, the family responsibilities of an inmate? In other words, if the inmate earns $6.90 per day, what part of that amount would satisfy the requirement of child support, which a court would already have ruled on, and which would go to a spouse or to a former spouse and the inmate's children?

Mr. Zinger: It basically comes back to Bill C-10, which was introduced last year, and which gives more weight to this type of obligation by creating a process within the correctional system, a process which would require more of an effort to pay these debts. If an inmate does not abide by this correctional process, he might be penalized in various ways inside the penitentiary, including losing some of his freedoms.

It would, for example, make it more difficult for the inmate to go from a maximum security facility to a medium security facility. Or it might be more difficult for an inmate to get a positive parole recommendation.

Senator Joyal: What kind of activity, voluntary or work-related, does an inmate have to perform to earn $6.90 a day? I am not familiar with that aspect of prison life, but you would know since you are responsible for monitoring what life is like for inmates in a penitentiary.

Mr. Zinger: That is the maximum amount. Very few inmates earn this maximum. Typically, those who earn that amount work with CORCAN, which is established within correctional services. For example, inmates can fix defective military vehicles or make furniture. They can earn up to $6.90 per day. When they earn more than that amount in a two-week period, the surplus is deposited into a savings account. They can withdraw at most $500 per year. We are talking about small amounts, and they generally go towards the kinds of purchases Mr. Sapers mentioned.

Senator Joyal: Do the savings come after child support is paid, for example, since the purpose of the bill, basically, seems to be to make sure that support is paid?

Mr. Zinger: The correctional plan, which is reviewed every year, can be adjusted to ensure that the appropriate amount of support is paid.

Senator Joyal: How do you find out about a family court ruling with regard to a former inmate's spouse and children?

In the same context as the bill, does the spouse have to register with correctional services to receive part of the compensation awarded by the court?

Mr. Zinger: I would say yes, but I believe that, in practice, since inmates earn so little money and their situation has often changed after they were incarcerated, their ability to pay has greatly decreased.

What everyone has to realize is that, when people are incarcerated, their ability to meet their obligations is greatly decreased. At that point they try to establish a correctional plan with correctional services that at least shows they are trying to repay this kind of debt.

[English]

Senator McIntyre: Thank you for your presentation. Section 78.1 deals with monetary awards to offenders by a court or tribunal. How do we define tribunal? Does the word ``tribunal'' include all tribunals falling under federal jurisdiction?

Mr. Zinger: Yes, I believe so. It has to be a decision by a court or a tribunal, so I would suspect it would be like the Federal Court or the Canadian Human Rights Tribunal, which have the authority to issue awards. However, it does not cover the great majority of some that may be settled out of court. For example, typically, over 90 per cent in Ontario — it is about 95 per cent of court actions that are initiated — end up in a settlement out of court.

Senator McIntyre: A court is a court and a tribunal is a tribunal. I was wondering if the tribunal as set up under 78.1 would satisfy the requirements of that section as opposed to a court?

Mr. Zinger: I believe the way it is written is broad enough to cover, for example, the Canadian Human Rights Tribunal, which has the authority to issue awards.

Senator Fraser: I apologize for my late arrival. I was in another committee in another building, and you understand how things are, I know.

In terms of the four categories in proposed section 78.1, Bill C-350 states:

(a) any amount owing by the offender as result of an order for maintenance, alimony . . .

— et cetera, and down to —

(d) any other amount owing by the offender as a result of a judgment awarded by a court of competent jurisdiction.

You explained quite compellingly that the correctional plan and existing systems already capture the offender's responsibility to pay, but does CSC know about all these amounts that courts have said the offender owes if the offender has any money?

Mr. Sapers: Not absolutely, no. However, even with Bill C-350 they still would not because it requires the creditors, first, to know that their debtor is serving a federal sentence and, second, to take the action to register. Typically, CSC is aware of maintenance enforcements, restitution orders, fines, victim fine surcharges.

Senator Fraser: The last category would be the one where there would be the most vagueness, anything awarded by any ``court of competent jurisdiction.''

Mr. Sapers: Proposed subsection (d) would be the one where we would not ever know how complete it, because it is impossible to know all the potential that may be there.

Senator Fraser: It all comes down to the creditor, again, and the registry. Okay, thank you.

[Translation]

Senator Joyal: I want to come back to this number, $6.90 per day, or 86 cents per hour for an eight-hour day. Are there any acceptable reasons to explain why this amount is so low and why it has remained so low even though its value decreases every year and has done so for the past 32 years? That means it is worth about three dollars per day, or barely 40 cents per hour.

It would appear to me that it would be in everyone's interest to pay inmates a reasonable amount, given all of the circumstances, if the goal is to make them accountable and have them take on their social responsibilities towards their families, victims, and other material damages they may have caused. Why are they paid, I was going to say, next to nothing given these objectives?

[English]

Mr. Sapers: Senator, the fact is that inmate allowances have not been reviewed for 30 years and we believe they should be. We also have no issue with inmates contributing room and boarding, paying for canteen goods and inmate welfare committees, and purchasing things collectively like cable access for television for recreational purposes. I think that is quite appropriate.

As those costs have gone up, the inmate allowances have not. We have made recommendations that those inmate allowances be reviewed and that a mechanism be put into place so that they become more reasonable and maintain some relationship to the cost of the goods that inmates are rightfully expected to purchase on their own behalf.

Inmate involvement in programs, employment and prison-based work are very important components of any correctional strategy or plan. The incentive that inmates receive mirrors what we would all expect on the outside: Put in a hard day's work and you are fairly compensated. Really, that is the point, is it not? It is preparing people to be able to move back into their communities and live pro-social lives that include working hard and getting compensated for it.

The Chair: We will have to move on to Senator Boisvenu.

[Translation]

Senator Boisvenu: Mr. Zinger, you clearly know the correctional system very well. A good number of inmates belong to organized crime. I know the Canadian correctional system has the obligation of checking, reviewing the assets and goods of criminals who have been incarcerated. In the case of organized crime, of people who have been incarcerated, do you check whether they continue to collect an income on the outside, either through straw men or by having an income from outside the country? Do you conduct this kind of check?

Mr. Zinger: The Correctional Service can collect information quite well. It can listen in on inmates' communications when they have contact with people outside the institution.

Senator Boisvenu: For organized crime in particular, we know that there is a lot of money laundering that goes on before incarceration, and there is no specific mechanism to see whether these people receive an income outside the institution. We know these people will often continue, even inside the institution, to be involved in illegal activities. That is a fact.

[English]

Mr. Sapers: Senator, you are right in your assumption that there are organized crime offenders who continue to be involved somehow in criminal activity.

However, I will broaden your question, if you do not mind. There are also other serving offenders who continue to receive income from legitimate activities. If there are outstanding debts, whether you are serving a sentence as a gangster or as another type of offender, and if those debts are recognized and in your correctional plan, mechanisms are in place to satisfy those debts.

For those criminal activities that an inmate may be engaged in, there are preventative intelligence security officers; there is an intelligence and enforcement relationship between Correctional Service of Canada and law enforcement. Therefore, there are other ways that is dealt with.

If there are concerns about money laundering, racketeering or illegal or illicit contraband trade inside an institution, there are other ways that is dealt with. Of course, that would attract new criminal charges, based on investigations and the activities of the police, et cetera.

There is not much of a direct relationship. Also, inmates do not have access to that external income that they may be generating. As we have described, inmates only have access to what is in their inmate account, and it is limited and controlled access.

The Chair: Thank you, gentlemen, for your helpful contributions. We appreciate your being here today.

Our next witness, another familiar face in terms of appearances before this committee, is Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies.

Welcome, Ms. Pate. I understand you have some brief opening comments before we get into questions. The floor is yours.

Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you very much and thank you to all the committee members for inviting us.

As you know the Canadian Association of Elizabeth Fry Societies is an association of charitable, not-for-profit organizations across the country that work with victimized, marginalized criminalized and institutionalized women and girls predominantly. We also work with some men, but the focus is women and girls.

I am very pleased to be able to speak to you about this bill and I am pleased also to see some of the amendments that were made since I appeared before the house committee on this bill, particularly the restriction on residential school payment.

Our organization would like to state clearly that we do think it is important that all of us fulfill our legal and financial obligations, whether we are prisoners, citizens, members of the Correctional Service of Canada or senators alike.

Current mechanisms do exist for prisoners to be accountable in this way. You heard ample evidence of that from the previous witnesses. As well, I think implicit in what the commissioner stated yesterday is the fact that there already exist mechanisms for the Correctional Service of Canada to enforce debts that have been registered.

In addition, as you have just been discussing with the previous witnesses, the fact that the implications of this bill are that we will likely see a very expensive, complex, cumbersome and unnecessary series of mechanisms set up to potentially impact — as I understand it from the commissioner's own testimony — perhaps five individuals in six years, it really begs question of what is the point of the bill.

We would certainly prefer to see mechanisms that would ensure greater accountability across the board. When one considers that many of the settled agreements, which I understand would not be covered by this bill, and the agreements that are at issue that the correctional service was discussing, the five settlements that they discussed, have all arisen because of human rights violations by the Correctional Service of Canada, it begs the question of the value of this bill and what message we are trying to send not just to prisoners but to Canadians as a whole.

I would encourage you to ensure that this bill does not pass at this stage or to the next stage and that a clear message go back to the lower house that we need to see accountability and transparency across the board, upholding of human rights obligations, and upholding of the rights and responsibilities of all Canadian citizens.

I end with a note that it would be challenging, indeed, had Ashley Smith survived and brought her case to court. In fact, if there were some perception that she owed a debt to somebody after the clear, massive and excruciating extent of her human rights and charter violations, and that there would be any question that someone should be able to dip into those resources that might have been paid as a means of compensating her for such human rights abuses, many of us would question the validity morally, financially and legally of taking those measures.

I would be happy to answer any questions and if there is anything else that I may assist the committee with.

The Chair: Thank you. We will begin the questions with Senator Boisvenu.

[Translation]

Senator Boisvenu: The current bill, even though we could still improve it, puts the emphasis on criminals respecting their family obligations. You will agree with me that this bill is aimed at men in particular because there are many male inmates. In terms of numbers, I believe it is 90 per cent men versus 10 per cent women.

The bill would ensure that the wives and children of incarcerated criminals would benefit from some compensation when the criminals obtain some money in prison. As for the debts, they are fourth on the list of priorities for this bill. The first priority is family support.

As you have worked in the correctional system for a long time, I am sure you are in favour of improving conditions for the wives and children of criminals. I know there is a Canadian association that supports families of inmates. I am trying to understand how you could be opposed to this bill given that it is aimed essentially at the clients you work with.

[English]

Ms. Pate: Thank you very much for that question.

[Translation]

If I may, I will answer in English.

[English]

Senator Boisvenu: No problem; go ahead.

Ms. Pate: Sadly, we are approaching 10 per cent, but right now not quite 10 per cent of the federal population is women. They are the fastest growing prison population, but are not quite at 10 per cent yet. They are at about 5 to 6 per cent right now.

I would agree absolutely that it is important for family support obligations to be upheld. There are mechanisms already to do so, as I think have been amply discussed and reaffirmed by the commissioner when he spoke to you and by the Office of the Correctional Investigator. We have no issue with those obligations being enforced.

The issue is with the creation of a very bureaucratic, cumbersome and unnecessary process that, by the commissioner's own accounts, may impact very few, if only one person per year. Why set up such a mechanism if, in fact, it is not necessary? Certainly, my view would be clearly that those who have obligations need to fulfill those obligations.

As was also pointed out by the previous witnesses, the ability of prisoners to fulfill those obligations is very significant. They tend not to have money before they end up in prison nor while in prison, not to mention the issue of prisoners' wages. We certainly support people upholding their family and family law obligations, particularly child and spousal support. That is not what this bill is about, however.

[Translation]

Senator Boisvenu: Let us take the Shafia case. He murdered four women, his three daughters and their aunt, and during his incarceration, he sold his business for $2.5 million.

What responsibilities should this criminal have to fulfil with the money he obtained from selling his business, when he has killed four women? I am trying to tie this back to accountability because I know this bill will apply to inmates on parole.

Is there a mechanism to inform the Direction des pensions alimentaires that a criminal has been released and has the ability to fulfil his obligations?

[English]

Ms. Pate: I am not sure how this bill would assist that situation per se.

[Translation]

Senator Boisvenu: What I mean is that this bill will ensure that the money inmates make in prison following legal action, when the correctional system is aware of it, will go to the family first. In cases where there are civil lawsuits and criminals make money, that money will first be put towards child support.

Senator Rivest: That is the Federal Court.

Senator Boisvenu: I understand. But usually. . .

[English]

The Chair: We are out of control here, so we will move to the deputy chair of the committee.

Senator Fraser: As I read this bill, the only money affected by this bill to be paid out to the list of the creditors is money that an offender would get as a result of a monetary award — and not all court decisions lead to monetary awards — made by a final decision, after any appeal, in a legal action against essentially the Government of Canada, which does not include civil settlements.

Senator Joyal: Or the Government of Quebec or a province.

Senator Fraser: Yes, a government; that is, the Government of Canada or a province.

To come back to the witness, you suggested, Ms. Pate, that most of these awards would be as a result of human rights cases. Can you expand on that? Do you know of cases like this, and can you explain to us a little bit about them? So far, we have heard no hard and fast evidence about who would be affected.

Ms. Pate: Well-known but not publicly discussed, we understand the impetus for this bill was really one particular individual who won a claim for a modest amount — I think it was $8,000 — for a human rights case. People were upset about it and that seemed to be the impetus. I am told that by many people within corrections, and fairly senior people in corrections. If that is the case, it seems to be well beyond what we would need in terms of a response.

Certainly, the only woman's case I am aware of that has actually gone to trial, ending up with a settlement made by the court, is a woman who had egregious breaches of her human rights and Charter rights. She had body cavity searches; she was denied access to counsel; she had X-rays done; and she was then kept in isolation for extended periods of time, even after all of those invasive procedures were done. She won a modest claim. I do not know the exact amount because there were also costs associated with her legal fees that likely were deducted.

That is the only case of a woman that I know. I do not know what the other three cases may have been. I suspect they were involving men. I understand from the previous testimony that it totalled approximately $100,000 for all five. It strikes me that it is well beyond that, what we would be looking at in terms of costs per year — maybe even costs per month — to administer this sort of scheme.

In the settlements I am most familiar with, one of the agreements usually in those is a non-disclosure clause, when cases are settled. I am familiar with a number of cases against the Correctional Service of Canada, where the Correctional Service of Canada, likely realizing they will lose, have offered settlements because of breaches of human rights and Charter rights.

Senator Fraser: They would not be covered?

Ms. Pate: No, it would not be those. Those are cases that have gone to court, but also to the Human Rights Commission.

Senator McIntyre: Thank you, Ms. Pate, for your presentation.

Bill C-350 has already been amended twice. It was first amended by the house committee and then later by the House of Commons. Recently, the Federal Ombudsman for Victims of Crime, in a report filed with this committee, not only agrees with Bill C-350 but recommended that it be further amended to include garnishment of federal offenders' monies, such as GST rebate, cheques, Employment Insurance, tax benefits and so on. Obviously, after listening to your presentation, you do not agree with this recommendation, but I would still like to have your thoughts on this.

Ms. Pate: I think with previous bills some of the monies that had been available to prisoners have been diminished. I would think the likelihood of much money coming in through any of those means to prisoners is limited. Therefore, the cost of administering such a scheme, even if there were some monies that could be gained from them, would be limited at best and I think would far be outweighed by the cost of the administration and the tasks of administering it.

We already have mechanisms for going in and enforcing orders that have been made in family court matters for spousal and child support. We certainly support those being upheld and administered. The bigger issue is the ability to pay. Any of these new mechanisms presumes an increased likelihood of ability to pay. I would be interested in the basis upon which the ombudsman's office has made that recommendation. Do they have information that there are suddenly vast amounts of money coming to prisoners? I do not think that is true and, if there is information, then I am not aware of that.

Senator Jaffer: Thank you, Ms. Pate, for the great work you do. We go on about family maintenance or family support orders and, because Elizabeth Fry Societies mainly deals with women, I want to ask you this question and see what your experience is.

Most women have custody of their children. Sadly, if they go to prison, they may lose custody. While they are in prison, I cannot see any judge ordering a maintenance order against her. Have you run into any women who have a child support order? There may be some; I do not mean to exaggerate. However, I would not expect many women to have child support orders while in jail.

Ms. Pate: I do not know of any. There may be some. About two thirds of the women in prison have children; approximately 90 per cent of them are sole support before they go to prison. About 90 per cent of those children end up in the care of the state. Often, even if they are able to pursue child support against the putative father or spouse, very rarely is that collected, even when it is registered.

I think the bigger issue is the broader issue of the ability of women to actually support their children, first and foremost.

Senator Jaffer: Another thing is concerning me about this bill. I am glad that the residential school settlements are out, but there is a second batch of cases coming out against the government, the day school cases. Those are not covered. There will be all kinds of settlements happening shortly on day school settlements, and these will be caught under this act. We have not even talked about this.

Also, many women who end up in prison have been sexually assaulted. They may have settlements from the government and those are not covered. May I have your opinion on that?

Ms. Pate: Thank you for allowing me to clarify and expand on my earlier point. I think it would be repugnant to include a human rights settlement or a settlement in the nature of a residential schools or day schools. There are a number of women who are survivors who have received settlements because they were abused in juvenile custody, child welfare settings or in other forms of institutional care. I think it would be repugnant to think that their very human rights violations put them at risk of further infringement of their civil rights in terms of that context.

It is hard to imagine how that would even come up. However — and I hate to sound paranoid on behalf of the women with whom I advocate — if there were some new scheme developed to be able to go into those funds that does not exist right now, beyond the victim surcharge and some of those other mechanisms, the concern would be the extent of the violations that have occurred. We know that 91 per cent of the indigenous women, about 80 per cent of the women overall, have histories of physical and/or sexual abuse. If there were more successful claims — there are not as many as one might think — the notion that those could be clawed back in such a scheme would be, I think, morally repugnant and I would question the value of a law that would impose those sorts of values.

Senator Joyal: There is an aspect of the bill that has not yet been well covered, which is the fact that we heard yesterday that there were about five cases in the last eight years or so. We did not get the amount of money at stake here. Are we talking about — I will not say millions of dollars — a significant amount? Also, what was the nature of the award? In other words, which were the tribunals, departments or agencies of the federal government that reached a decision in favour of the inmate? Do you have information on those two aspects?

Ms. Pate: As I mentioned earlier, I am only aware of one case, which involved a woman. I am not certain of how much she received; it was somewhere in the nature of $20,000, I believe, before legal fees were paid. Therefore, I am not certain how much she actually received out of that.

I believe one of the men — the case that I understand —

Senator Joyal: What was the case?

Ms. Pate: That was the case of the woman I mentioned who had gone out on a pass. There had been third-party information that she may have been bringing back drugs. She asked to know what her rights were, but they said that if she is not guilty, she does not need a lawyer, essentially. Then they told her she should submit to all of the searches they were requesting.

She did. She submitted to a strip search, a body cavity search and then an X-ray. The allegation was made that somehow — it sounds fantastic, and it was — she may have hidden drugs behind an organ. This was after she had an X-ray. This was an allegation made by one or more correctional officers. They then put her in a dry cell, which is essentially a segregation cell with no running water, which means there was no ability for her to relieve herself or wash. She was kept in that circumstance for an extended period of time.

Then, even after she was taken out of the dry cell after it was clear that anything that might have been inside would have passed, she was placed in an extended period of segregation. She was still charged and penalized as though she had actually done the thing. It was due to that situation that she brought forward a series of complaints and then, eventually, legal action.

Senator Joyal: What about the one concerning the man?

Ms. Pate: I do not know the particulars of the case. I only know about it because it has been, sadly, joked about within the halls of corrections. It was a prisoner who was not well liked by staff and he sued over a pair of running shoes. He was given the wrong size, a situation that caused him to injure himself. I am told he received $8,000. It is not that I believe it or not; I accept that was the amount. That might amount for $25,000 or $28,000 worth of claims.

I am told the total amount for all five cases is somewhere in the neighbourhood of $100,000.

Senator Joyal: Essentially, on those two cases, it is compensation for the wrongdoing of the persons responsible for the prisons?

Ms. Pate: That is correct.

Senator Joyal: That is essentially what we are talking about.

Ms. Pate: That is correct.

Senator Joyal: The other point I want to raise with you is the issue of wages that the previous witnesses mentioned in their brief. Is it the same maximum for women in prison; that is, $6.90 per day since 1981?

Ms. Pate: That is correct. Prisoners are encouraged to get an education, even though there is no funding for it beyond Grade 10.

It is interesting that Ashley Smith's family and another group of former prisoners have just donated money to our Elizabeth Fry Societies memorial bursary that we provide to prisoners. We established that bursary in 1992 when the decision was made by the Correctional Service of Canada to eliminate post-secondary education for prisoners.

Funding for even a grade equivalency diploma, the GED program, is not necessarily provided. In some cases, it will be provided if it is in the correctional treatment plan, but there is no provision for education.

There is also a literacy initiative. There is an expectation that individuals get at least a Grade 10 and preferably a Grade 12 education. If you do not have your Grade 12 education, then you are expected to go to school halftime, which cuts your salary essentially in half. Therefore, very few women are actually making the full $6.90 per day.

The minimum is usually what is paid to individuals who are first coming into the institution, which is $2.50 per day. In addition, there are an insufficient number of jobs. If you cannot work because you are too old to work, you do not have the physical ability to work — which is true for some of the individuals — or there are no jobs, then you actually get the minimum.

In the women's prisons, in particular, there is an insufficient number of employment opportunities. I do not know what the exact number is today. The Correctional Service of Canada would be more reliable to get that information, but we could certainly find that out; our advocates go in. One of the issues we have been raising is the inadequacy of the employment opportunities, anyway, not because of the financial compensation but because of the desire of women inside to work and to obtain employment skills for potential employment upon release.

Senator Joyal: What concerns me is the fact that even for an inmate who would want to repair the damages he or she has inflicted on a victim or to property or goods to show his psychological disposition and to understand the harm he or she has caused, the system does not allow him to do that because the amount of money is so low that such a person could never really come to terms with his or her responsibility vis-à-vis the victim.

Ms. Pate: I will add to that, senator, and to the question that was raised by your colleagues. One of the things that is most challenging for women is that many of them, if they have any contact or if they have any idea of how to get contact with their children, will often send money out to the caregivers who are caring for the children. It is not just for gifts, although some is certainly for gifts for birthdays and holidays, but also to assist them.

I know that a number of women who, at one time, were able to get incentive pay, the majority of that money, if not all of it, was going out to the community to assist the caregivers to care for their children. Sometimes they were family members; sometimes they were in the care of kin or friends. Sometimes they were actually in the care of social services, but they would still send money out to the caregivers.

Senator Joyal: What kind of work in prison would women do to earn that money?

Ms. Pate: As the Canadian Human Rights Commission commented in the last series of complaints that we had with them in their 2003 report, they quoted one woman who said, ``I am trying to get skills and employment, and they give me a mop, a spatula and a hair dryer,'' or something like that. Actually, hairdressing is no longer an occupational opportunity, but cleaning and some yard work is.

One woman had an opportunity to participate in construction at one point. Some women in the past, when they were at the minimum security house, which was closed by Corrections in Kingston, were able to participate in some work with VIA Rail on a piecemeal basis, and made up to $10 a day. Basically that is it.

In Quebec, which is the only place where they actually have a full-blown industry — horribly, ironically, tragically, remembering the history of sexual abuse of these women,as those of you who watched Unité 9 will know. It was based in large part on what happens at the Joliette Institution. In fact, the only Corrections industry I am aware of operating right now, aside from a few side projects in other prisons, is a sewing project in Joliette Institution where the women are employed to sew men's underwear for all the male prisoners across the country. Remembering the number of women who are sexual abuse survivors, that is the main industry.

There are some piecemeal industries. There was one that used to be for people with intellectual disabilities, and a sheltered workshop existed for a while at Grand Valley institution. There are some very laudable projects where they provide food preparation at Fraser Valley Institution, and some training of dogs for support work, particularly for children.

Those are all laudable projects, but they do not tend to be projects or initiatives that employ a great number of women. They tend to employ a handful of women at a time, aside from this underwear-making enterprise in Joliette, and they tend not to be skills that are transferable.

There was for a period of time at Edmonton Institution for Women a graphic design industry, but there was an inability to have computer technology, which is how graphic design is done. It was all silk screening and things, which are all lovely for a cottage industry, but it provided no opportunities for employment once people are released. It is very limited.

[Translation]

Senator Dagenais: We have been speaking this morning about the very low wages inmates earn. I would like to remind you that there are some very rich people who also go to prison, such as white-collar criminals. They have had time to hide their assets because of the length of the legal process. For example, there are criminal bikers, drug traffickers and people like Mr. Vito Rizzuto who was a poor inmate for a number of years. We talked a lot about the ability to pay back tiny amounts based on what people make in prison.

In my former life, I came across a case involving a man who was held criminally responsible for an accident that had caused some deaths. However, because he had also been injured, he received generous benefits from the Société de l'assurance-automobile. In Quebec, people who go to prison following an impaired driving accident, after reoffending numerous times, receive very generous benefits from the Société de l'assurance-automobile.

The objective of the bill is to implement more rigorous mechanisms to hold inmates accountable and make them respect their obligations. I understand there are some mechanisms in place, as you mentioned, like in any other organization. However, does this mean we should stop trying to improve them or make them more effective? I would like to hear your opinion on this, please.

[English]

Ms. Pate: I am not sure that the Quebec automobile piece would be covered by this. I stand corrected if I am incorrect. My read of it is that they would not be.

Certainly I would not disagree with you. There are many people who have a great deal of means who escape criminal responsibility and accountability, period, much less their financial responsibilities. They tend not to be the people we see in prison, nor do they tend to necessarily be the people we see who are prosecuted. If we are talking about that kind of accountability, we need to have another discussion about different ways of ensuring that people cannot hide behind other mechanisms, whether it is different types of privilege that are accorded them because of their positions, their power or their financial situation.

I would not be averse to having that discussion. I do not think that is what we are talking about here. If there are cases like that, they would be very rare, I would think. I would be the first to say that if someone has a great deal of means and opportunity, and they are hiding that and avoiding being held accountable, you would not find an objection from me for saying let us figure out some ways to resolve that. I do not see that in this bill, though.

The Chair: We still have a few minutes left. Does anyone else have a question they would like to pose?

As I see none, Ms. Pate, thank you again for being here and for providing input to the committee and the views of your organization.

Ms. Pate: Thank you very much, Senator Runciman.

The Chair: It is much appreciated.

We will move to our next panel and I thank our witnesses for appearing today. Ms. Jong and Ms. Latour are not newcomers to the committee proceedings and have appeared before us in the past. Ms. Jong, I believe you have an opening statement and then we will move to Ms. Latour. Is that the way you wish to proceed? The floor is yours.

[Translation]

Ms. Joanne Jong, as an individual: Honourable senators, thank you for your invitation to appear regarding this bill. Bill C-350 was tabled in the House on November 17, 2011, and was in line with Bill C-10 to get tough on crime. It was a bold and forward-thinking bill.

The objective of Bill C-350 is to hold criminals accountable by insuring they pay restitution to their victims. Restitution to victims is something that is very important to us as victims of crime.

During seminars organized by the Federal Ombudsman for Victims of Crime and the AFPAD held in spring 2013, this principle was at the heart of victims' claims, which was to hold criminals accountable by making them pay restitution to their victims for the harm they caused them.

As you know, in February 2013 the government announced the creation of the Canadian Victims' Bill of Rights. In particular, this bill of rights may include a requirement for criminals to compensate their victims for the harm caused. Public consultations on this initiative is currently under way. The Corrections and Conditional Release Act defines concepts such as victim of a criminal offence.

Section 2 defines the victim as a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offense. This means damage to the person that justifies the principle of restitution for the damages suffered by the victim.

I believe it is essential that Bill C-350 be aligned with the Corrections and Conditional Release Act, which will be tabled next fall, to ensure that the legislation forms a cohesive whole. It is also essential for the bill to be examined in this context in order to avoid including in the CCRA restitution mechanisms that would be superseded by Bill C-350.

This is a very real risk. In his appearance before this committee on May 30, Guy Lauzon, the sponsor of this bill, introduced a concept I find very dangerous for victims of crime. Through this bill, Mr. Lauzon is trying to impose the notion that the spouse and children of criminals are not only victims, but also the main victims. I find this extremely problematic.

He believes not only that the spouses and children are victims, but also that they should be the first to be compensated, before the victims are. He insisted on this a number of times, but I am completely horrified by this idea.

During his appearance on April 26, 2013, his stated the following:

Although they are often overlooked, spouses and children of offenders are also victims of crime. I cannot stress that enough. I believe that the spouse, whether it is a male or a female in the family of an offender, is shamed and hurt. They are victims as much as the actual victims. Imagine for a moment that someone has been savagely beaten and ends up in a wheelchair for the rest of their lives. They have been targeted by an offender. They are a victim. There is no doubt about that. They have suffered harm, they suffer and they have needs.

So, according to the principle of Bill C-350, this victim would be less of a victim than the spouse and children of the offender because, in terms of allocating sums, the money would first go to the family of the offender, then to the state, and the tiny amount that remains would go to compensating the victim as imposed by a judge in a compensation order. This is unthinkable.

The victim would be compensated after the spouse and children. That is absolutely shocking. In addition, this goes against the CCRA, which does not recognize offenders' families as being victims. I think it would be extremely dangerous to change that. Moreover, compensating spouses and children first, before the real victims, would open the door to fraud: marriage fraud as well as separation and divorce fraud in order to protect offenders' money and assets by giving them to members of their family.

Some offenders already get out of meeting their obligations through these means, and now federal legislation would allow them to do so? As for child support for long-established spouses and children, I think this part of the bill is completely useless. The provinces are the one that ensure that debtors pay back the money they owe.

For example, the Province of Quebec has implemented an automatic collection mechanism. The rights of victims of crime are just starting to be recognized, and, in fact, are not recognized in any laws. In short, this specific point in the bill will sabotage the rights of the real victims of crime. According to a Justice Canada study, victims bear 83 per cent of the costs of crime in Canada.

We, the victims of crime, are constantly revictimized. It is time that we get the basic right of having offenders pay for the harm they have caused us. Is there an impact on the spouses and children of offenders? Absolutely. However, living through the consequences and being a victim are two completely different things.

Many people are impacted by crime. There are the friends, neighbours and colleagues of offenders as well as witnesses and police officers. Should all of these people also be included in the concept of a victim?

However, the CCRA defines a victim as a person who was targeted by offenders, to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence. Should this kind of damage not be considered more of a priority than family support?

The other problem with the order of priority suggested here is that it goes against existing legislation. Debts to the Crown supersede any other debts. The surcharge should be paid first, followed by any orders under the Criminal Code.

In my opinion, there are two possibilities: continue examining Bill C-350 once the victims' bill of rights has been adopted in order to ensure that all the initiatives are harmonized, or amend Bill C-350 to bring it in line with existing and proposed legislation.

The new wording would specify the objectives of the federal correctional system by adding the following: . . . by promoting offender accountability to ensure they meet their obligations to their victims.

I propose the following amendments to Bill C-350.

[English]

The Chair: We have allowed you additional time. You have gone well over the five minutes. I would like to move to Ms. Latour for her opening comments.

[Translation]

Ms. Jong: Thank you for giving me the opportunity to speak to this bill.

Nicole Latour, as an individual: Mr. Chair and honourable senators, thank you for the invitation to appear before you.

Following my appearance in support of Bill C-10, I am happy to see that some points that I had raised have been incorporated into Bill C-350.

My statement will be very nuanced in comparison to that of Ms. Jong.

I retired in 2007 after 42 years of work, including 37 years in the federal public service, mostly with the Correctional Service of Canada. I held various positions, including executive secretary, assistant administrative manager, hearing officer at the Parole Board of Canada, and finally, inmate affairs analyst with the Administration of Quebec.

I have therefore acquired knowledge of the law and the Corrections and Conditional Release Regulations, and various policies and directives on offenders' rights and means of recourse for complaints and grievances, including processing of claims against the Crown and the management of correctional programs. In my opinion, these tie in closely with offender accountability that is recommended in Bill C-350 and with the resulting potential benefits, both for offenders and victims of crime.

Moreover, I am sensitive to natural justice and to the balance between the rights of offenders and victims. Indeed, my experience at CSC comes on top of my personal experience of being faced with the consequences of crime. I have always believed that every victim has their own unique way of reacting to criminal offences and of rebuilding their life. Despite my knowledge in the field of corrections, I have not been spared the serious scars of major crimes committed against my love ones, including the wanton murder of my brother in 1992, and the robberies suffered by my daughter who was seven months pregnant and my daughter-in-law in 1994, carried out by a repeat offender who had been unlawfully at large for 11 months. He was sentenced to five years for his offences. At the end of this term, he was convicted of four second-degree murders committed between 1990 and 1999. It was a close call for my two girls.

After these experiences I became very sensitive and compassionate towards victims. This motivated me to better identify the post-traumatic effects experienced by a victim of crime in the context of my job at CSC, without neglecting my duty to respect offenders in compliance with CSC's mission.

Since my retirement, I have been dedicating myself to defending victims' rights, in part to rebalance my energy, which for so many years was devoted to serving offenders. I believe in their social reintegration, while being realistic; I know that some of them will never reach that point.

I feel that Bill C-350 is very logical and that it fits in perfectly with the objectives of CSC for the social reintegration of offenders. I have always found it ridiculous that offenders are not required to compensate their victims, whereas they are required to compensate the Crown if they damage any property of the state during their incarceration.

I believe that it is crucial to encourage offender accountability, and that they fulfil their obligations towards society. Consequently, I support the provisions in subsection 78.1(1) of Bill C-350 that reads as follows: any amount owed to an offender as a result of a monetary award made to the offender by a final decision of a court or tribunal pursuant to a legal action or proceeding against Her Majesty in right of Canada, or an agent or employee of Her Majesty must be satisfied by the payment of, in the order of priority, any amount as a result of an order for maintenance, alimony or family financial support made by a court of competent jurisdiction. Since certain offenders never respected such an order before their incarceration, it is possible that this alternative may boost their self-esteem and offer them better chances of adequately reintegrating society.

You may find my statements are very nuanced compared to those of Ms. Jong, but I was included through correctional programs management, which must have had some influence on me.

With regard to establishing the priority given to the payment of a support order for a child or the spouse of an offender, I would tend to support this in certain cases, since these people may be the victims of domestic or family violence without having an official dissolution of the relationship with the offender. Sometimes, the family of the offender experiences difficulties and becomes the victim itself, given that it is abandoned after the spouse is incarcerated. I have no doubt that some members of offenders' families must be in similar difficulties to those victims of the crime. This is not a matter of measuring the magnitude of the degree of suffering nor the severity of the consequences for these two categories of victims, namely the victims of criminal acts and the victims, indirectly, of the family of the delinquent. The burden that falls on the victims of criminal acts will be mitigated by such measures.

My status of member of the Association québécoise de Plaidoyer-Victimes and of the Association des familles de personnes assassinées ou disparues means that I have a high degree of appreciation for the measures taken in this attempt to make offenders accountable. Since the Criminal Code provides for the fact that the court must take into account the victim impact statement, that should in principle expose the damages and losses caused by the perpetration of a crime, both in the short and medium term. I hope that judges will be more open to restitution orders, even though they are discretionary and reserved for appropriate cases, according to criteria set out in section 738.1 of the Criminal Code.

For many years now, I have deplored the fact that an offender is not subject to a restitution order, given the magnitude of the consequences that emerge from certain crimes against the person or property crimes, not to mention the disastrous effect of economic crimes or those related to anti-drug laws. When you have to deal with legislation, regulations, principles and objectives that lead you to believe that an offender can become a law-abiding citizen, it is essential that he meet his obligations for his debts just like any honest law-abiding citizen must make a daily effort to meet his obligations.

With regard to the victims of crime, they are undeniably faced with increased financial burdens following the perpetration of a crime that involuntarily leads them to certain needs, sometimes of a long duration, that undoubtedly create major problems for their survival and their ongoing lives. In many cases, their financial resources are insufficient and do not allow them to meet their needs for psychological assistance; the supply of such services provided by provincial organizations is limited. In other cases, their access to legal services, which are necessary following the harmful consequences brought about by the crime of which they are victim, remains sometimes impossible because they do not qualify for free legal aid because of their work income, whereas offenders have easy access to such services.

Some victims of economic crimes and fraud are plunged in such despair that some have committed suicide, following considerable losses. Some of them have had to go back to the labour force after having been retired for many years. I have no doubt that Bill C-350 will allow victims to feel that they are more respected. Too often, these victims say that they get the feeling that only criminals have rights. Now they are listened to more, and I have reason to believe that the current government is on the right track to restore some balance within our criminal justice system.

With regard to the victim surcharge, I am delighted with this measure because it will be used to fund programs and assistance services for crime victims in the respective provinces where the crime was committed. It goes without saying that government budget restrictions could reduce various subsidies granted to the organizations that provide victim services. The surcharge could definitely contribute to maintaining them at least to some degree.

I wish to thank all those who care about the unfair fate of victims of crime and the implementation of measures that allow us to make offenders accountable for the consequences of their crimes.

As you have seen, this is very nuanced.

Senator Boisvenu: Welcome, Ms. Latour and Ms. Young. You did make a very nuanced speech.

In principle, Ms. Young, the question I would ask is the following: are you categorically opposed to this bill or, like other interveners, are you essentially for the victims of crime? Those with whom I discussed the bill find that the prioritization in the allocation of the funds, if there are any, should, in principle, make the victims a priority rather than the families of the criminal. Would you share that view?

Ms. Young: Yes, absolutely. I support this bill, but I think that the priority is erroneous and that support payments for spouses and children should not even be in this bill.

Senator Boisvenu: Ms. Latour, you have many years' experience in correctional services.

Ms. Latour: I saw this from a different view point.

Senator Boisvenu: Perhaps that is where your nuance comes from.

Ms. Latour: Not just from there.

Senator Boisvenu: I would like to ask you this, given your experience in correctional services. The people who have come here to testify and who support the other side are against this bill and have a vision of correctional services that seems to support the criminal. Based on your perception of the clientele of federal penitentiaries, are there a certain number who could indeed support their families but who do not do so because of negligence or irresponsibility?

Ms. Latour: I think that most offenders do not live up to the responsibilities. I have seen exceptions some who are very close to their families and loved ones.

What led me to take a somewhat more nuanced position on all this is not just my experience in correctional services. Incidentally, with regard to claims against the Crown, there are many offenders who abuse our system, such as by using the complaint and grievance system. I have seen cases where the Crown had to pay substantial amounts of money and where it was eventually discovered that there was some kind of scheming among the offenders. They would arrange to lose their personal effects.

But, we have to deal with our laws, our directives, our permanent instructions, the commissioner's directive regarding recourse to the Crown. If an employee neglects to report certain personal effects in our logs, we have no choice, we have to pay.

My nuanced view also stems from legislation and regulations about children and support payments. I see this differently from Ms. Young, but I understand her arguments completely. At the outset, we are subject to divorce legislation and family assets legislation. I agreed with this priority because support orders stem from an absolute right. In any event, you need lawyers to defend those who do not receive it. That is why by setting out current provincial or federal laws, I thought that I would accept that priority.

I am separating the two sections pertaining to spouses and children. Obviously, I view spouses who turn a blind eye to sexual assault very negatively. In most cases, I think that spouses who turn a blind eye to crimes of that nature are quite rare.

I wanted to explain how I came to my opinions with respect to priority. I would like to see priority given to victims because they are the ones who have suffered the worst atrocities.

In the case of heinous murders, the repercussions will persist for years. The spouse of an offender can, however, go to work, think of something else, but when a crime has been committed against a person, that is huge, particularly for the individual.

Senator Fraser: If I understood correctly, Ms. Latour, you said that there were many instances where the inmates almost have fun with the system.

Ms. Latour: Yes.

Senator Fraser: Yesterday, we were told that this used to be the case, but that the Federal Court had since changed its rules on costs, so that the prisoner has to pay, which has resulted in a substantial decrease in these types of suits.

Nicole Latour: That is good news.

Senator Fraser: That is a good thing. I do not know whether you are aware that the Commissioner of the Correctional Service of Canada told us that research was done, in conjunction with this bill, to find out how many people had been affected and only five cases were found over the past six years.

Ms. Latour: Are you talking about cases of bad faith?

Senator Fraser: No, the number of people who, had this bill already been passed, would have first of all received monetary compensation further to the final decision rendered by a court or a tribunal in a lawsuit against Her Majesty, which is already quite limiting.

Ms. Latour: Indeed, unless that is more of an incentive so that they ask for more.

Senator Fraser: Five people.

Ms. Latour: I find that difficult to believe.

Senator Fraser: I am not the one saying this. This comes from the commissioner who has to administer the system.

Ms. Latour: So much the better then; I left in 2007. I am very surprised to hear such a thing.

Senator Fraser: So I ask you the following question: in order to implement this bill, the correctional system will have to develop a registry, an administration system that will deal with all of the registration of individuals hoping to receive payment for their debt.

Ms. Latour: You mean the people identified in the orders.

Senator Fraser: Yes, but they need to be indicated in the orders.

Ms. Latour: Yes.

Senator Fraser: So we have to develop a system with the provinces regarding provincial custody decisions, all of that, namely an administration that will cost I don't know how much money, but which will cost something, and we know full well that administrative systems always cost more than originally forecast.

Is this really where we should be putting this money and this human effort or are there any other ways that will enable us to better serve the interests of victims?

Ms. Latour: The penitentiaries receive the court decisions at the outset. If custody orders or victim compensation are part of the court decision, that would be easy to log. We already have resources that review these documents.

However, I would agree with you that we must also establish a system, but if there are only five people, I can tell you that. . .

Senator Fraser: That is right.

Ms. Latour: I have been searching for statistics in the past 24 hours and I did not find any.

Senator Fraser: That is what the commissioner told us. It is not in his interest to lie to us. They conducted their research and that is what they found, five cases. The total amount of money involved in those five cases would be about $100,000, so let us say an average of $20,000 per case.

Ms. Latour: I am not looking only at cases of claims by the Crown. Let me give you an example. An offender had killed a police officer. He was receiving significant benefits from the Quebec auto insurance board.

Senator Fraser: That would not be covered. That would result from a court or tribunal decision.

Ms. Latour: It has to be federal.

Senator Fraser: In the case of a lawsuit against Her Majesty. That is very limited.

Ms. Latour: I thought that we wanted to broaden opportunities to help victims.

Senator Fraser: That is another thing. The conditions are very restricted.

Ms. Latour: I saw this as expanding the conditions. So they cannot be changed.

Senator Fraser: I am wondering about that, given that the resources are always limited in the case of victims specifically.

Ms. Latour: There was the Old Age Security pension, but fortunately the government decided to amend that.

Senator Fraser: That is not in the bill.

Ms. Latour: But that is income that comes from the federal government.

Senator Fraser: Yes, but that is not the case in this bill. Is that really the best way to serve the interests of victims? Frankly, I would question that.

Ms. Jong: That is why I am proposing a pause on this subject as we await the adoption of the charter of victims' rights and see after that whether Bill C-350 is still relevant.

Senator Fraser: That is an interesting suggestion. Thank you very much.

Senator McIntyre: Ladies, thank you for your presentation. Ms. Jong, you are proposing amendments to Bill C-350. Before being tabled before this committee for consideration, this bill was carefully examined by the Standing Committee on Public Safety and National Security, and that committee did bring forth several amendments.

I understand your concern about the amendments that you are proposing. Having said that, have you had an opportunity to appear before the Standing Committee on Public Safety and National Security, in order to propose your amendments to the bill when it was being considered by that committee?

Ms. Jong: No, I did not have an opportunity to appear. I did not know that Bill C-350 would be considered. I did not know that it had been tabled. I found out in the last few days. I was not aware of the entire process that took place. If I had been, I would have testified.

Senator McIntire: You would have appeared?

Ms. Jong: Yes, exactly.

Senator Joyal: Ms. Latour, thank you for your contribution. I believe that you are bringing an interesting point of view to this debate. I would even say it is essential.

What is your reaction to Ms. Young's proposal to exclude support orders from the money to be remitted?

Ms. Latour: I see it as an obligation, a debt owed to someone else, as it is the case for anyone else in society. Since the point of the correctional plan is truly social rehabilitation, I see this as a measure that will truly make the offender accountable. I was quite taken with the title of the bill, accountability of offenders. Of course, nothing is ever perfect, ever, and nothing will compensate the victim for their suffering — and I am personally a victim.

There is one case I did not mention but I would like to do so with your permission. The daughter of a very good friend of mine was the victim of attempted murder through the arson of her home. If you only knew how tough it is for some victims. Since the victim's home had been purchased by her father, she had taken steps to obtain a mortgage in order to improve the house. Her partner was the perpetrator of extreme domestic violence. He followed her everywhere and called her 50 times a day at her workplace. Her brother called me because he knew that I worked for Correctional Service Canada and that I was familiar with the domestic violence programs. I told him to get his sister out of the house and I certainly was not wrong; her partner set fire to the property thinking that both his children and his wife would be inside. Believe it or not, the judge ordered visitation rights of the two children by the father. I was shocked.

Later, the bank that held the mortgage demanded $23,000 from the grandmother of the two children because the victim had to file for bankruptcy. In addition, she was disadvantaged from a tax standpoint because for the purposes of child care, the lower net income had to be considered. This is atrocious.

So when Ms. Young raises things like that, I understand her perfectly. However, I tend to think of certain aspects and like it or not, I am influenced. I will never denigrate Correctional Services Canada because I saw so many offenders abuse CSC employees that I have to share my compassion for organizations that take care of offenders.

That may be why I cannot be quite as harsh as someone else perhaps, but I have a firm conviction and a profound love for victims of criminal activity. I developed it, I defended them in the course of my career in my own way by analyzing situations where the delinquent was exposed to a certain degree of danger, but I never abandoned my feelings for the victim.

I also defended notorious cases in cooperation with you in the Senate, with the House of Commons or the National Assembly. Nevertheless, I did develop unique feelings toward victims. Every victim who is killed becomes like a loved one to me. That is how the crimes which affected me indirectly transformed me. Nevertheless my integrity demands that I also be fair toward the incarcerated population as well.

Senator Joyal: On the one hand, we certainly have no doubt about the nature of your convictions and the sincerity of your sentiments. All those who listened to you will recognize that. What seemed important to me and what you mentioned and what Ms. Young mentioned is that it would seem that if the objective is to make the offender more accountable, as you have pointed out quite rightly, the first thing to do is to call upon their sense of responsibility toward their own children. Perhaps that is what will affect the person the most. There is human feeling involved there. As we said, this is their flesh and blood. Calling upon such a profound feeling in a human being seems to me to be one avenue to put before an offender, such as saying that starting off by taking care of one's children is not negotiable. Because when we are talking about child support, we are not talking about adult children, but young children or at least children who are still dependent on their parents.

That is why I very much empathized with Ms. Jong's perspective, but, as you mentioned, there is also the aspect of inmate accountability. I believe the idea that victims should be compensated is key and that no one is questioning it.

In holding inmates accountable, how can we do a better job of convincing them that this is the way to go and that they should not only recognize it but also take on this responsibility and all it entails? It is this aspect of the bill that seems positive to me, as you worked in the correctional environment. Unless I am completely mistaken and you were telling me which was the better way to hold inmates accountable: by appealing to their human sentiments or beating them down?

As you stated, some people will never come around. We agree. Thankfully, they represent a small number of inmates only. However, we believe that by treating people humanely, we can bring them to share our common sentiments. What do you think of that aspect of holding inmates accountable?

Ms. Latour: I think I followed this same line of thinking in my reflection on this. I told myself that they had families before committing their offence. In terms of accountability, I focused on that. As you said so well, we have to start with their families since providing child support is a responsibility. There is also responsibility to the spouses if they do not make enough money. I believe that is part of our authenticity. These are interesting nuances to consider in our discussions and perhaps we should re-examine them later.

Ms. Jong: I would like to add that legislation must have a deterrent effect. People with families will think twice before undermining their own families if there is a deterrent effect and their income is used to provide restitution to victims. However, if they know their money and income will go to their own families, there will no longer be a deterrent effect. I believe that also has to be taken into account.

The other aspect of this issue that I find essential is that not all legislation is weighted the same. Before being convicted of a crime, the accused is first presumed to be innocent and the burden of proof rests with the Crown. Victims have to go through a difficult process to see the criminal brought to justice. Victims are revictimized in order to be recognized as victims of an offence. However, for family ties, it is civil law that applies and there is no requirement of proof on a balance of probabilities on the person who wants to be recognized as a spouse or a child. For the victims, it is a long and difficult process during which they are constantly reliving the crime. It is very painful. The impacts of offences on the families and the damages done to the victims are two completely different things.

Ms. Latour: I completely agree with that. However, I really saw the bill as trying to hold inmates accountable. Even if they are minimal measures, it is important to put in place obligations inmates must meet. I think we really analyzed this differently. In my analysis, I in no way tried to establish the degree of the suffering caused to a victim. I believe that is a whole other debate.

I was the first to issue a recommendation in 2003 during the national study on homicides. It involved the Department of Justice, the Parole Board and the Correctional Service. I had told them as a bit of a joke, that perhaps all victims should be given the possibility of spending even one year inside. They could learn something positive. There are fantastic correctional programs when people truly want to change their behaviour and tackle their criminogenic factors. This will never be implemented, but I had asked Ms. Gaudreau; I said it would take a parallel system, to provide victims with what we provide inmates. However, realistically, this would be very difficult to establish.

Senator Joyal: I am trying to reconcile what you say based on your experience with the profoundly human feelings expressed by Ms. Jong. Should the bill not require, through the accountability process, that compensation be divided equally between the family for child support and the victim's surcharge?

Ms. Latour: Ideally, yes; absolutely.

Senator Joyal: The two would happen at the same time rather than being consecutive. If I understood you correctly, Ms. Jong, what you find shocking is that the family takes priority over victims.

Ms. Latour: It is a very good suggestion.

Senator Joyal: If they went together, you would have the satisfaction as a victim of being recognized as such, since you are the first to have suffered from the offender's actions. At the same time, as you stated, there is the recognition that inmates must be held accountable as people.

Ms. Jong: In my opinion, there are three creditors: the victim surcharge, restitution to victims and family responsibilities. The surcharge is used to pay for victims' services across Canada. Restitution is for victims, specific victims who were targeted by specific crimes. For victims, it is very important that the offender, not all offenders, but the offender who committed the crime for which he is incarcerated, provide restitution for the victim's suffering and damages. As in civil law, if I break something of my neighbour's, I have to pay for it. As it stands now, inmates are under no obligation to pay.

As for families, I think they already receive support, because there is already a social safety net in place to provide them with care and basic necessities. I do not think child and spousal support should be included in this bill.

Senator Joyal: Even if, as we mentioned, both restitution and family responsibilities would be at the same level?

Ms. Latour: I am more in support of this option — I am sorry, Ms. Jong, but I do not agree with you. To me, accountability is any obligation the inmate must meet. Listen, if you want to believe in reintegration, you have to start somewhere. The amounts available as a fund to pay back creditors are not as significant as we would have wished.

Ms. Jong: I think that including the notion of family in this bill opens the door to fraud. There is marriage fraud that occurs just so that assets can be transferred to the spouse. There are fraudulent divorces and separations aimed at committing fraud. There is a federal standard for child support but there are absolutely no limits to spousal support and heritage assets. Inmates can transfer everything to their spouse, they can provide child support that would include everything. That is why I think this opens the door to abuse.

Ms. Latour: I think that abuse of the system cannot be prevented in any sphere — just look at the Charbonneau Commission. I think we have to fight this kind of abuse when we see it and take appropriate measures. But there is no perfect solution.

Ms. Jong: No.

Ms. Latour: I really see this as a measure to hold inmates accountable and I still believe that.

Ms. Jong: I believe that holding offenders accountable starts with dealing with the consequences of their actions.

Ms. Latour: Both have to be done. Even correctional programs ensure this is dealt with. It cannot be excluded. Inmates have to make progress if we want to believe in reintegration. As I stated, there are some for whom I believe this is absolutely not possible.

Senator Joyal: There are habitual offenders, and the Criminal Code takes that into account.

Ms. Latour: We all know such offenders.

Senator Joyal: The Criminal Code recognizes that this happens. People who have been convicted of other crimes can be designated as habitual offenders by the court, which, in practice, means that it recognizes that there is almost no chance that these offenders can be rehabilitated.

[English]

The Chair: Thank you, witnesses. We appreciate you taking time out of your schedules to assist the committee with its deliberations.

We are going to adjourn. We will deal with clause by clause on this bill at some point next week. We are not sure when because of the possibility of Bill C-51 coming to us. Hopefully that will be Wednesday. We will have to do some juggling, but we will deal with clause by clause at some point next week.

(The committee adjourned.)