Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 4 - Evidence - March 10, 2016
OTTAWA, Thursday, March 10, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning, and welcome colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Last month the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our eighth meeting on the study.
Joining us today for the first hour from the Canadian Association of Elizabeth Fry Societies is Kim Pate, Executive Director; from the John Howard Society of Canada, Catherine Latimer, Executive Director; and from The Church Council on Justice and Corrections, Rebecca Bromwich, Board Member and Treasurer.
We thank you for being here today. We look forward to your presentation.
Ms. Bromwich, I understand you will lead off.
Rebecca Bromwich, Board Member and Treasurer, The Church Council on Justice and Corrections: Thank you for permitting The Church Council on Justice and Corrections to be here and make submissions on an important issue.
As many of you may know, The Church Council on Justice and Corrections is a national organization founded in 1972 by 11 Christian denominations in Canada, both Catholic and Protestant. We are united by the common values of our member denominations and operate in consultation with, but independently of, these member bodies. We strive to bring about change in the way Canada administers justice and corrections.
Through research, projects, workshops and presentations, the Church Council promotes education on restorative justice and sponsors initiatives to build healthier and safer communities, while fostering and encouraging new ways to creatively think about justice.
We appreciate the opportunity to participate in your special study on delays in the criminal justice system. As summarized in our brief, we offer three suggestions for your consideration.
As a preliminary note, I would like to reference Bishop Desmond Tutu who, when emerging from the horrors of apartheid in South Africa, said there is no future without forgiveness. The submissions of The Church Council on Justice and Corrections are about a path forward to a new future and how to remedy problems with delays endemic to our criminal justice system. Our views originate from the world view that we share with Bishop Tutu, and they speak to this future.
It is our submission that delays in the criminal justice system will be best alleviated by changes to our society's fundamental operating logic and how we do justice and assure public safety. Our purpose here is to shine the light on restorative justice and how logics of inclusion and reconciliation can be operationalized at a detailed, systemic level to assure better rights protections and more humane and compassionate treatment for all.
Based on the overarching world view and theoretical orientation, we have three concrete and specific recommendations.
The first, although noted in our brief in a different order, is a focus on our recommendation to reinvigorate restorative justice programming nationwide.
We also recommend reforms to the bail system. I know that is a recommendation the Canadian Bar Association has also made.
We also recommend the reinstitution of a federal law commission in some form so that there can be a systematic, professional, detailed, thorough and ongoing review of the criminal justice system.
I would like to focus my oral remarks primarily on restorative justice. A definition of restorative justice put forward by Dr. Robert Cormier in 2002 is as follows:
...repairing the harm caused by crime while holding the offender responsible for his or her actions, by providing an opportunity for the parties directly affected by a crime—victim(s), offender and community—to identify and address their needs in the aftermath of a crime, and seek a resolution that affords healing, reparation and reintegration, and prevents future harm.
Justice requires that we restore those who have been injured. From a restorative justice perspective, the people injured include the whole community and even the offender. It is a priority for our organization to recognize that the work of justice is not just for professionals but is work for communities to do.
It is simply true that the formal processes of the criminal justice system are currently overburdened in ways that are causing delays. This burden can be alleviated if the workload of doing justice is better shared collaboratively between formal justice mechanisms and informal processes within the community.
Restorative justice is not, as you know, a new idea. In fact, here speaking on behalf of 12 mainline denominations of Christian churches, I'm not here to put forward fundamentally new ideas, but they are radical ones. The Church Council on Justice and Corrections has been shining the light on the benefits of community-based restorative justice programs for over four decades. Yet, in recent years we've seen defunding of restorative justice programs across the country in many respects.
We, as an organization, hosted Are Høidal, warden of Norway's Halden prison, a prison known worldwide for its humane approach to corrections. What he told an audience at our fundraiser, and when he spoke privately with us afterwards, is that many years ago he learned some of these ideas from Canadians who came to visit Norway. In fact, the processes and restorative orientation now adopted with great success in countries like Norway were inspired by Canadians many years ago. I'm not saying anything particularly new, but I suggest we reinvigorate our attention to that.
There are many examples of successful restorative justice programs now in place in Canada. We need look no further than Ottawa. The Church Council on Justice and Corrections was involved with the inception of Ottawa's Collaborative Justice Program now in place in the courts. There is some detail about that program in our written brief.
The Church Council takes the view that logics of exclusion, exception and the notion that we need to throw away the key with a blind focus on security have brought us to a crisis position in our criminal justice system.
I say this without naïveté. Our suggestion is not that we replace the existence of the correctional system with some sort of happy "Kumbaya" circle. I understand that is a critique we receive.
In my own community, a few blocks from my house, on Monday evening someone was shot here in Ottawa between a daycare and a high school. This was during waking hours when children were walking around. I understand the reality of crime and the need for public safety in our communities. The Church Council appreciates the need to work collaboratively with police, corrections officers, courts and actors throughout the criminal justice system. We're not advocating a sudden alternative to the system. We're advocating that we supplement it better with more restorative justice practices.
I want to also speak to our other recommendation, the notion of bail reform. I know this has come up from many other sources. The Canadian Civil Liberties Association in 2014 had a comprehensive report called Set Up to Fail. It notes:
...the bail system is operating in a manner that is contrary to the spirit — and, at times, the letter — of the law. Legally innocent individuals are processed through a bail system that is chaotic and unnecessarily risk- averse....
The Church Council supports recommendations made by criminologist Dr. Cheryl Webster in her 2015 report to the Department of Justice, "Broken Bail'' in Canada: How We Might Go About Fixing It.
It's notorious and unconscionable that Canada's crowded prisons are filling with ever-increasing numbers of our population who are on pretrial remand. It's a problem from both an ideological perspective and a practical one. We see huge problems with overcrowding in prisons as a result of this.
Section 515 of the Criminal Code and the manner in which it interrelates with provincial and territorial interim release procedures and processes should be looked at in terms of simplifying and obviating delays in the criminal justice system. It is our thematic notion that it is the overburdened nature of the system that is at the heart of the delay.
The Chair: Could I ask you to wrap up?
Ms. Bromwich: Our third submission is that, as we all know, the Law Commission of Canada, previously called the Law Reform Commission, was defunded in 2006. Consultations like this one are welcome and we, again, are grateful for the opportunity to participate. However, they are not a replacement for the establishment of a permanent, independent, expert body to study and undertake systematic reviews of criminal law.
The Chair: Thank you.
Catherine Latimer, Executive Director, John Howard Society of Canada: It's a great pleasure to be here to talk about the delays in the criminal justice system, which we take very seriously. As many of you know, the John Howard Society is a charity committed to effective, just and humane responses to the causes and consequences of crime. We have front- line offices in more than 60 communities that the provide a variety of services dedicated to crime prevention, justice system alternatives such as bail supervision programs, rehabilitative programs, and reintegration support for people who are leaving prisons.
The last 10 years of tough-on-crime policies and law reforms have had a devastating effect on our corrections and justice system. These delays are not just in the justice system but also in the corrections system, and they are major contributors to the current level of dysfunction that we see there.
The John Howard Society of Canada has a five-point plan to improve the corrections system. Many of the these points would have the effect of reducing delays by reducing the number of people in the criminal justice system, and dealing with those who are there in an efficient, fair and humane manner.
I think many of you probably have the talking points, so I will just go through the five major areas and indicate why we think these would be useful in terms of reducing delays.
We share the position of the Church Council that probably one of the most serious problems facing the criminal justice system today is the remand crisis. I think it's important that we restore respect for the presumption of innocence. At this point, more than half the people behind bars in provincial prisons have not been convicted or sentenced for a crime, and this itself brings the administration of justice into disrepute. Some remain in detention for years before having charges against them adjudicated. Those who are ultimately released on bail may first appear in court many times, are often subject to conditions that are excessively onerous, and far too often they breach their conditions. We find that about 20 percent of adults in courts are there for administration of justice breaches.
While more bail alternative programs and changes in policies could provide immediate relief for these problems, we think that the Criminal Code provisions that provide the legislative framework for pretrial detentions and release need to be overhauled. The grounds for detention need to be tightened, limits need to be placed on bail conditions, the reverse onus provisions need to be dropped, and there need to be strict limits on the duration of pretrial detention. This should really be legislated.
The next two points in our five-point plan deal with trying to keep those out of federal institutions or prisons who don't need to be there, and the second one is "sue for peace on the war on drugs,'' and treat, rather than punish, the mentally ill. We find that an adherence to a failed war on drug policies and inadequate resources to effectively deal with mental health issues in the community have led to a lot of people defaulting into the criminal justice system. It overburdens the system, and it is not well-equipped to deal with some of these fundamental mental health problems that end up in the criminal justice system. We think there are better and more constructive alternatives, and these really need to be pursued.
Our fourth point in the plan deals with proportionate and constructive penalties. Over the last 10 years, a number of mandatory minimum penalties have been imposed. Some have been struck down by the courts, but they have the effect of clogging the court system. When faced with mandatory minimum penalties, people will not plead but will try to defend themselves in court, and this slows the whole process down.
Another significant problem is in relation to the mandatory financial penalties. Despite the evident inability of the impecunious to pay some of these fines, it takes repeated appearances before the courts before there is any relief for these people so that they don't end up in prison for failing to pay their fines. We think that can be improved immediately.
We think an immediate amendment that would go a long way to addressing these problems is to restore judicial discretion by including a sentencing provision that allows judges to depart from a stated mandatory punishment if the mandatory minimum would result in a disproportionate or otherwise unfit sentence. We note that the truth and reconciliation recommendations also include something similar to that. There have been private member's bills both from the NDP and the Liberal Party in the past promoting something like that, and almost all other jurisdictions have a safety valve which allows judges to depart from stated mandatory minimums. We think there is an opportunity to do that now.
We would also support greater use of community-based options, both as alternatives to the criminal justice system and as sentencing alternatives, including the restoration of conditional sentences, which would take a lot of people out of the prison system who don't need to be there.
Our fifth point, and the one that is probably the most relevant for us, is that we think it's important to move from confinement to contribution and to restore effective corrections. Both the United States and the United Kingdom have recognized the need for significant penal reforms, and we're hopeful that Canada follows suit.
The prison system, above everything else, must ensure humane conditions that respect the rights of prisoners and meet essential needs, including mental and physical health care. Most concerning to us are the delays in the administration segregation process. While the United Nations and experts state that 15 days in seclusion causes often irreparable mental health problems and amounts to a form of torture, our system has no limits on the amount of time prisoners spend in administrative segregation, nor does it have effective independent adjudication in the process. There need to be oversight and limits embedded in the solitary confinement administrative segregation process, and that needs to take place as quickly as possible to preserve rights and people's mental health and well-being.
Our prison system is no longer effective in preparing prisoners for release through rehabilitative and skills development prograMs. I think report number six of the 2015 spring audit of the Auditor General looked at CSC's record of preparing male offenders for release. It concluded that interventions are not provided in a timely manner and noted that most offenders did not complete their programs by the time they were first eligible for release. This is very serious. We need to ensure there is timely access to the programs prisoners need in order to complete their correctional plans and be better prepared for release into the community.
We know that graduated, support and supervised release through parole reduces reoffending, and most prisoners now are seeing their first release not through parole but late in their sentences through statutory release or at warrant expiry. Too many prisoners whose risk could be managed in the community are denied parole. Too many are being released from medium- and maximum-security prisons, and the delay in preparing prisoners for and delivering graduated, supervised and supported release is unacceptable and does not promote community safety.
This is at the very heart of an effective corrections system, and it is an area where we need urgent reform.
Another area of unnecessary and unacceptable delay relates to the criminal record suspension process.
The Chair: I have to encourage you to wrap up as well.
Ms. Latimer: Some applicants have been waiting years, in many cases, to have their applications processed for record suspensions. We can come back to that at another time, but it is very serious.
In conclusion, we would say that the legislative reforms of the last decade, which have been aimed at increasing public safety, have led to enormous delays and overburdening of the justice and corrections system, and have compromised rights and undermined effective corrections. We think that you need significant reforms to correct this.
We would remind senators that the Corrections and Conditional Release Act does provide authority for senators to enter prisons at any time, and we would really encourage senators to take advantage of that opportunity: go in, speak to the prisoners, hear their concerns, and hear their ideas about how some of these delays and other problems could be addressed.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you very much for inviting us to the committee. It's my first time back since the last turnaround, so it's lovely to be here.
Thank you for the invitation to discuss what we see as a very vital and important issue in terms of the causes and consequences of delays before and throughout the criminal justice system, from the laying of charges through the disposition, and thereafter.
As I think all of you are probably aware, the 24 members that represent the Canadian Association of Elizabeth Fry Societies are all charity organizations that work with marginalized, victimized, criminalized, and institutionalized women and girls across the country. In that context, our mandate doesn't start or end with the criminal justice system, but many of the services are plunked firmly within that.
I'm going to start also by — I don't think I've ever done it at this committee — talking about the importance of acknowledging that we're on Algonquin territory. I acknowledge it everywhere I speak publicly, except, I realize, at parliamentary and Senate hearings. It is even more important now as we're venturing into a time when we have the Truth and Reconciliation Commission recommendations. We're 20 years on from the Royal Commission on Aboriginal Peoples, and we have the recommendations just coming out of the Canadian Human Rights Tribunal with regard to education in particular but also to child welfare issues for indigenous youth.
Why do I raise that? Because when we start to look at what's happening in our criminal justice system, we see a system that is trying to redress, at times, social, economic and health issues that really belong in other areas. Those people end up criminalized and imprisoned increasingly so. Women, particularly indigenous women and women with mental health issues, are the fastest growing prison population. Just down the road, I suspect that the Commissioner of the Canadian Human Rights Commission and the Correctional Investigator are talking about some of these issues in the annual reports that they are tabling at this moment.
Why is it that they are the fastest growing prison population? Because they really are the easiest to catch, and they are the ones who no other service will provide supports for. So they end up being, effectively, the low-hanging fruit of the criminal justice system and the ones who are most likely to be caught up, charged, convicted and imprisoned.
I wanted to say that as a backdrop. I think we need to fundamentally look at some of these issues in this context.
We're also 20 years on from and about to celebrate, if we can call it that, 20 years since the Arbour commission. I'd like to talk, at the end, a little bit about that.
In between, what are some of the issues that we need to look at? I'm not going to repeat what the Canadian Bar Association and my colleagues here on the panel have said in terms of who is coming into the system; the issues around adequacy of support and counsel to actually bring defences when people are charged; the inadequacy of the bail system; the fact that when we look at Aboriginal people and women, about 70 percent of those who are in pretrial custody, awaiting trial, have not been convicted. So it's even higher than the more than 50 percent that my colleague with the John Howard Society, Catherine Latimer, spoke about. We need to be looking at some of the approaches that would talk about not even pursuing those charges.
In the courses that I teach at law school, I talk a lot about the importance of having Crowns take their responsibility as officers of the court seriously and do what the Youth Criminal Justice Act requires and, I would say, what the Criminal Code does. But it would be helpful to have a refurbishing of the Criminal Code to clearly articulate that we should be looking at all other measures before the criminal justice context is brought into place.
The Youth Criminal Justice Act, as many of you know, under the leadership of my friend to the left, really developed a mechanism that required judges to consider why they had not looked at child welfare settings, mental health and educational services before they looked to the criminal justice response. That focus caused a halving of the number of young people in custody. It went down by only a third when you talk about girls and young women and only a third when you talk about racialized, in particular indigenous, youth. But that measure alone changed things.
So reform the front end of the system, as well as making clear — and I would reiterate "making clear'' — the importance of putting resources into alternatives to those approaches. It may surprise you for me to say that I don't think we should look at more diversion-alone mechanisMs. I think that if we don't have prison as a last resort and criminalization as a last resort, then all of those become add-ons. In the absence of resourcing by provinces and territories of those other resources, we end in a default expansion of the criminal justice system. That's what we first saw under the Young Offenders Act and in an attempt to reform it, and we're still seeing it. I think we have an important opportunity to talk also about the importance of national standards in those areas.
A review of the criminal justice system and the delays really is merely tinkering with the proverbial deck chairs on the Titanic if you're not also looking at national standards that will assist provinces and territories, including financial obligations to ensure that those resources are in place. Otherwise, you have people still being scooped into the system if there is no other place for them to gain health.
A perfect example: We're dealing with one of the deaths in custody right now. The family was very supportive and had some resources. They were told outright that the only place their daughter would likely get any assistance would be in the criminal justice context because of the evisceration of mental health services and addiction services in the community. That should not be happening. I don't believe anybody here wants it to happen in their name, so we really have to examine that.
I support the reinsertion of discretion for judges by, in the interim, an escape clause of the sort that has been recommended in two private member's bills.
I don't support that we start to use mechanisms like special circumstance courts, again for the same reason that I mentioned around diversion. We should also insist that the Department of Justice, in addition to a law reform commission and a sentencing commission — it would be great to see some iteration or reiteration of those — recognizes that its role is not to allow bills to go forth that won't pass Charter scrutiny or have a 5 percent or whatever percentage chance, but that they see their role as to uphold the Charter and to defend the Charter, not to defend against equality claims that come before the Charter.
Many other recommendations have been made around legislative reforms in terms of repealing. I think reinstating some principled approaches about the criminal justice context as a last resort and human rights as a guiding measure will go a long way. I have lots to say about what could be changed if you want to talk about just the prison system, but I'm hoping that the measures that you're interested in looking at will avoid us getting there.
I do support you going into the prisons. I just took some members of the Canadian Human Rights Commission into one of the jails a week ago tomorrow, and it's fair to say that their eyes were opened, in a way. You cannot fully understand the overcrowding, the delay, the fear, the anxiety of individuals until you actually have an opportunity to speak with them. So I strongly urge senators to do that. If you're interested in hearing more, I am happy to speak to that in questions.
The Chair: Thank you all. We will begin the questions with the committee's deputy chair, Senator Jaffer.
Senator Jaffer: Thank you very much for your presentations. As always, there were very thorough.
Ms. Latimer and Ms. Pate, the previous witnesses we've heard from have spoken about a presumption of innocence. People end up in jail for years, and it has a terrible impact, especially on females who are incarcerated. Can you expand on that, please?
Ms. Latimer: I think there is little doubt that it has a huge impact. If they are convicted, they have spent a long time in very bad circumstances if they have been in remand. It's crowded. There is no access to prograMs. It's violent. It's a very unpleasant place for them to be.
We've seen a recent decision from the Ontario courts where they're increasing the credit for pretrial detention because of the number of lockdowns — enforced segregation in their cells for long periods of time. It has a huge, devastating psychological effect. For most people who are in remand, there are higher levels of anxiety than once you're actually sentenced and are serving your sentence because you're not entirely sure what's going to happen.
For those who are actually found guilty, at least there is some credit being given toward criminal accountability based on the amount of time that you have spent in pretrial detention; but if the charges are dropped or you're found not guilty, your liberties have been damaged and you're receiving no compensation or no recognition for the loss of liberties, which is part of this criminal justice system process. That, in itself, is extremely damaging for people's perception of fairness and justice, as are the loss of employment, loss of family support and all of the other practical issues that they experience. It is a huge crisis in the Canadian corrections system, and we need to move to fix it soon.
Ms. Pate: I would agree and would add that you would be hard-pressed to find people working within corrections, as well as people on the outside, who see women as posing a significant risk to public safety. The majority of the women — 91 percent of the indigenous women and 86 percent of women overall — have histories of physical and/or sexual abuse. Many of them have pled guilty to charges, and while some of them are unrepresented, many are represented. The majority of them have children and are the sole supporters of their children before they come to prison.
Incarceration, whether pretrial and/or after conviction, impacts many communities. We just had the new minimum standard rules on the treatment of prisoners reinvigorated and introduced to the UN. They are called the Mandela rules, and it reminded me that one of the first acts of Nelson Mandela when he came in as president was to put in place a rule — the Hugo case, if anybody is interested — that no woman with children under the age of 12 should be jailed. There was no huge spike in crime, and no huge issues came of it. It has not been maintained, but he did that recognizing, after his own experience and that of many others, that to jail mothers was to also relegate generations to it.
In light of recommendation 30 of the Truth and Reconciliation Commission, you could be looking at some de- incarceration strategies, starting with indigenous women and those with mental health issues. Section 29 of the Corrections and Conditional Release Act right now allows you to take people with mental health issues out of prison. The Correctional Investigator has found that 70 percent of the women in prison — I think that's the correct number — have had previous psychiatric hospitalizations. If I have that wrong I apologize, but I think that's the figure they are quoting now. That means we are talking about people who really should be in other services.
There are situations where women are described as getting more violent. For instance — I was going to go to the Edmonton institution, but instead I'll focus on Grand Valley.
This week, you may have seen in the news that there was the fourth series of lookdowns in less than a week, and the fourth one lasted five days. That lockdown was because they claimed they had reliable information that there were drugs or weapons in the institution. The lockdown was eventually ended, I think, quite frankly, because of the media attention. If drugs, alcohol or weapons had in fact been found there, we probably would have heard about it.
However, even if that were the case, the much more historically productive practice that would have been taken would have been to say to the prisoners committee — the people trusted by the administration, and this is what we hear is in the institution — "You go around, and we will provide amnesty if this is produced.'' In most cases, if there was something in the institution it would be released within a few hours. If there was not something produced, most times the committee would know that it was not there. They're all living in segregated conditions as a result.
The Chair: Senator McIntyre.
Senator McIntyre: Thank you all for your presentations. I have a brief question for the Elizabeth Fry Society and one for The Church Council on Justice and Corrections.
Ms. Pate, I understand that the Canadian Association of Elizabeth Fry Societies is affiliated with provincial and local groups. I further understand these groups run programs for women and girls who have been incarcerated, criminalized or are at risk of becoming criminalized. Can you tell me about those programs?
As far as the Church Council is concerned, I understand you are still offering the Support and Accountability program. Could you explain it? How effective is the program? Are you able to provide any data with regard to the success of this program? And finally, are you aware of any similar programs?
Ms. Pate: Our organization provides services before people are incarcerated — so anything from early intervention with children, pregnant teens in schools — and we also provide victim services. For instance, in British Columbia and the Pacific region, a lot of services are victim services attached to or in conjunction with Crown offices and police offices.
Also, a number of our Elizabeth Fry Societies go into prisons or provide community-based options as sentencing alternatives, including community service opportunities, working and doing programming within the prisons, releasing options including halfway houses and beyond, and community housing as well, in some contexts. That is a range of the services.
Some of you are aware that I have also participated in some of the early restorative justice initiatives that were developed. In fact, one of the reasons I stopped doing it was because we were not able to do that work with some of the most serious cases. At the time, I was working with young people and then with men, and we were trying to focus on those offences or situations that had caused the most harm. Most of those programs, though, are used as diversion programs.
With the young people we had worked with who had committed very serious offences, we ended up having the biggest support from the Calgary Police Service. They found funding so we could work in an intensive way with 10 young people they had identified as what they called the most serious habitual young offenders, because they saw them coming back down what they described as the crime cycle. One is a young woman I still keep in touch with. She has been out for over 17 years and does support work with other young women. That's just a range of some of the types of services that are provided.
Ms. Bromwich: The CoSA project is something The Church Council on Justice and Corrections was involved with. We are not a service provision agency, but we were involved with the program in a somewhat indirect way with the distribution of the funds and administration.
The project is a reintegration initiative based on restorative justice principles for federally sentenced, high-risk/high- needs sex offenders who have been held to the end of their sentence. The view of the project is that although imprisoning offenders accomplishes a short-term goal of protecting the public, most are eventually released. The CoSA project is a way to intervene with these cases of very serious sex offenders who statistically are notoriously recidivist.
The project was developed in 1994 to substantially reduce the risk the future victimization of community members. Reports based on that project have actually shown that sexual recidivism rates for men who participate in CoSA are 80 percent lower than for men who do not participate. It had a tremendously beneficial impact on people who participated.
The project, however, has unfortunately wrapped up. It's in its final stages and is no longer being funded or administered by the Church Council, although we are very interested in future programs of a similar variety.
The Chair: We will have to move on. I've got a long list here, and we will not have enough time if the responses are lengthy as well. I'm encouraging all of you to be as concise as possible.
Senator Baker: Thank you for the excellent presentations.
You don't have to answer this question today if you don't feel like it. It is mainly directed toward Ms. Pate and Ms. Latimer, who are well-known legal experts in this field. We are talking about trying to save court time, and today we are dealing with the Probation Officers Association, Correctional Service Canada and so on.
My question is kind of outside the box. When somebody violates a condition of release and there is a warrant of apprehension issued by the probation officer, it goes to the Parole Board to adjudicate. If there is a Charter argument, the Supreme Court of Canada said the Parole Board of Canada is not a court of competent jurisdiction to hear a Charter argument. That is left to the courts, so that is where the matter goes.
Now, if I appeared before Senator McIntyre, who is the chair of the review board, and he is sitting alone with two psychiatrists, that's a court of competent jurisdiction according to the Supreme Court of Canada. So is a disciplinary hearing of a law society, or of a nurses' or doctors' association.
To save court time, should we suggest that the Parole Board be reconstituted to make it a court of competent jurisdiction, just as other quasi-judicial bodies in Canada are, so that they can hear Charter arguments and don't have to go to the court? You can provide an answer in writing after if you so wish, because I don't think you have probably heard that argument before.
Ms. Pate: I just made it in an appeal, actually. I think the Charter issue should be considered by the Parole Board. Probation is separate; that's part of the sentence. We are talking about parole violations.
I would say two things: One, we should get rid of many of the conditions. There are so many special conditions put on people, often because it is a backlog. They often haven't been able to take all of the programs inside, so as part of getting out, there are all of these conditions placed upon them.
Senator Baker: It's court time now we're trying to save.
Ms. Pate: We are trying to save time, so if you could look at the responsibility of the Parole Board to also implement the Charter and things like 718.2(e), you wouldn't have to go to court.
The fact that so many people being released on statutory release is in part because of what we've already talked about, the overcrowding of the system. In most of the prisons for women now, women are living in virtual segregation in almost every area of the prison. In an Edmonton institution — I was just there — the women are in what they call modified movement. That means they can be put in 23-hour lockdown in their living cells.
Senator Baker: Yes, but the court issue is what we're trying to deal with here.
Ms. Pate: Yes.
Senator Baker: That's a good recommendation, and congratulations, Ms. Pate, you are leading the way again.
Senator Batters: A couple of things: First of all, Ms. Pate, dealing with the issue you raised of mandatory financial penalties, is the fine option program. I've talked about this a few times in the time that I've been on this particular committee. Saskatchewan and many other provinces have a fine option program, where, if you're unable to pay a mandatory financial penalty or other type of fine, there are options given for working that time off in the community and other sorts of things. Ontario's provincial Liberal government does not have that sort of a program. I'm thinking that this could be one way to alleviate some of the pressure on the criminal justice system for those types of issues and probably particularly helpful to people that you help, Ms. Pate and Ms. Latimer. I'm wondering if you could comment on whether that could be one way in which we could alleviate some of these types of issues.
Ms. Pate: I'll respond briefly, but I don't want to take credit. It was actually my colleague who raised that issue.
I do agree that fine option programs are good and should be in place. One of the challenges that we've found with women is that if they have children and are sole supports to their children, there are some real issues. We've had to creatively create a fine option or a community service work option that involves taking care of the children so that groups of women could actually work it off. Just be aware of some of the impediments because those models were developed as an add-on to what already exists for men.
Senator Batters: True, but it is still better than having the mandatory financial penalty that they can't potentially pay.
Ms. Latimer: I agree; I think fine option programs are good. I think it's also very important to restore some discretion to the judges because there are people who are subjected to those fines who do not have the capacity to participate in a fine option program.
I appeared in court as an expert witness for a man who was living in a shelter, schizophrenic, deaf, addicted to crack, and there was absolutely no way that he could have participated in any kind of a structured program in order to generate revenues. It's people like him who are particularly vulnerable to these mandatory fine provisions.
Senator Batters: While there are certainly cases where difficulties result, fine option programs can still help a vast array of people in those kinds of situations. Would both of you concur with that?
Maybe the Ontario provincial Liberal government will finally institute this sort of a program. I'm not really sure who might be pushing them to do that, but perhaps that can be one thing that results from this particular study.
I think I heard you say in your opening remarks, Ms. Pate, that you are not a fan of the specialized courts, like drug treatment, mental health and domestic violence courts, but I may have misheard.
This question is for both of you: What is your feeling on whether specialized courts like that can be helpful to this process as well?
Ms. Pate: You did hear me correctly; I did say I'm not a fan of them. The reason that I'm not fan of them is not because I don't think people need support and not because I don't think there are times — and certainly here at the mental health court — when you have certain people in charge who are doing things, they can do a tremendous amount to get people out of the system. So there are courts that have worked particularly well in particular contexts, largely because of who is heading them, in my experience, or who is around the table. The issue, though, is that if you have a special circumstance court, you tend to see more willingness to criminalize individuals, to put them into that court system, rather than to look at alternatives to the system. So that's the issue with specialized courts. It's not that you don't focus on those issues, per se; it's that that actually widens the net of who is likely to come into the criminal justice context as opposed to pushing the parameters of those other services and ensuring that they meet the needs of individuals.
Senator Joyal: I would like to come back to a recommendation that Ms. Bromwich mentioned in her brief, and I think it is a very important one, which is the re-establishment of the federal law reform commission. As you know, when it was abolished, it was not as much on the argument side of the budget involved because it was not really an important amount of money, but it was rather the argument that the making of legislation pertains to Parliament and that it is for Parliament to decide what the law is. The law reform commission was seen as upstaging, in a way, the role of Parliament.
You come back with that suggestion again. I think Ms. Pate supported it in passing in her brief, and maybe Ms. Latimer has also. Could you expand more on the benefits of the law reform commission and how that commission could be linked to alleviate the backlog of cases that we see causing a lot of problems in the justice system? What do you make of the relationship between the re-establishment of the commission and the problem that we have to address here today?
Ms. Bromwich: Thank you for your question.
Yes, one of our recommendations is to reinstitute some form of federal law reform commission, and it's our submission that Parliament need not feel so threatened.
The law commission makes recommendations. Ultimately it is Parliament that decides in a democratic process.
The benefits of a law commission are to have experts consult and have the time to speak with the public and with stakeholders in a systematic way that can look at the whole context of provisions.
As you know, the Criminal Code has been amended every year that it has been in operation, but there has not been that systematic shift in the Criminal Code, although that was proposed many times over the years by the law reform commission and then the law commission.
The advantage of having such a body would be to have some of the inquiries and the thought that is happening in the parliamentary context delegated, in some ways, to a body that can do some of the legwork in a thorough, systematic and regularized way. As I said, this consultation is very welcome, and it's an opportunity. A law reform commission, at a fairly low cost to the taxpayer, could provide that type of consultation that would supplement and really reinforce the work that the government is doing.
Ms. Pate: I would certainly concur and support that.
I love seeing you. I love coming to visit you every now and then when there is legislation.
Senator Joyal: We have known you for many years.
Ms. Pate: All of you, senators and committee members and the staff of the committee.
However, when I first started do this work, I guess the benefit or detriment of being old and being around this for more than 30 years is that it would be rare that I would come once a year, maybe once every two years for legislation. I would have a full brief. You know how infrequently I come with a full brief.
The law reform commission and the sentencing reform commission provided opportunities to research and, as you've heard, to gather evidence and reports and really provide the best expertise available for the parliamentary committee and then for you as senators to look at that with sober second thought and independence of the Senate and say, "Should we go ahead with these provisions?'' We have so much need for reform. Sixty years of piecemeal reform needs to be reconsidered. I think it would be a very good recommendation to have a body that would be focused on those issues and that would only make recommendations. You wouldn't have to see us so often.
The Chair: We have to move on. The clock is ticking, and I still have four senators on the list. I hope you'll all keep that in mind.
[Translation]
Senator Boisvenu: First I want to thank all of you for your testimony. I agree with one of your proposals regarding mental health. I forget which witness suggested it.
In my opinion, we have to find alternatives to imprisonment. I visited federal penitentiaries in Quebec and I did not see overcrowding. In fact, there were wings that were closed because of a lack of clientele.
Some of the facilities in our penitentiaries are of better quality than the gyms and classrooms in our high schools. So the situation is not as dramatic as some would have us believe.
I recently conducted a study to see if there was a link between recidivism and delays in court appearances. I compared the rate of recidivism and the court delays in all of the provinces. I saw that in provincial penitentiaries, particularly in Quebec, the rate of reincarceration is approximately 70 percent. That rate is higher in the 18-to-24 age group. This finding is dramatic. I also compared it to reincarceration in federal penitentiaries. If you include inmates who are incarcerated for the first time in a federal penitentiary and had already been incarcerated in a provincial one, the reincarceration rate is around 70 percent. A criminal may have to appear in court from four to eight times.
In my opinion, the solution lies in more effective rehabilitation programs. If people have to constantly go back to court, that is one of the main elements causing the bottleneck in the courts. If we reduce that rate by 50 percent, we would reduce court delays.
In Canada, no independent study has been done on the effectiveness of rehabilitation and social reintegration programs. These studies have always been carried out by people in the field. Would you agree to have an independent study done on rehabilitation and reintegration programs in penitentiaries?
[English]
Ms. Latimer: I think all programs should be evaluated, particularly the reintegration programs. It would be interesting to look at recidivism perhaps five years after the person has been released from prison. It would be interesting to see if those people being released on stat release or at warrant expiry are more prone to coming back into the system.
I think there are some real questions right now about the efficacy of the graduated-release process. I think it is probably not working nearly as well as it should be, and it has to do with the inability to provide effective programs in a timely manner so that people are prepared at the point of release and supported and supervised as they're coming out of the prisons. We're not seeing that.
We're seeing a slight uptick of people coming back, having committed violent offences, within five years, and I think that may well have to do with the fact that fewer people are actually being released on parole and many are getting out later in their sentences.
Yes, an independent review would be extremely helpful.
Senator Fraser: Welcome back. We love you too.
I have two quick questions for Ms. Latimer about administrative segregation, which is the official euphemism for solitary confinement. I think I heard you suggest that there needs to be oversight of the administrative segregation process, but the Correctional Investigator, Howard Sapers, looks at it and reports regularly about — shall we say — the flaws in the system. What else would we need in terms of oversight?
Second, I think you're not the only person to observe that prolonged solitary confinement creates mental probleMs. Are there any data available about the degree to which that would contribute to recidivism once the inmate gets out?
Ms. Latimer: On your first point, the real problem is that if someone is subjected to segregation for a disciplinary offence, there is an independent, impartial adjudication processes. A chair who is not with CSC looks at the quality of the evidence and makes the determination.
On administrative segregation, there is no such independent observation of why the person has been placed in there. There is no independent observation as to why they're not being released. They're supposed to be released in the timeliest manner. From the files I have seen, this is really not rigorous enough in terms of guaranteeing that people's fundamental rights are protected.
When their residual liberties are affected through placement in segregation, their Charter-protected rights to due process under section 7 kick in, and there is no way at this point to verify whether or not that's taking place.
I know Kim will speak to this, but this has been a recommendation time and time again, from the Arbour commission to Michael Jackson, to all kinds of experts who have looked at what's needed to make this admin segregation process begin to comply with basic fundamental principles of justice. For us it is highly important that there be independent, impartial oversight.
Senator Fraser: On a case-by-case basis.
Ms. Latimer: Yes.
Howard Sapers is good, but all he does is make recommendations. People I deal with who are experiencing human rights abuses will get something back from the Correctional Investigator such as, "Yes, you're correct; we see you're not getting access to legal materials and we'll include that in our report.''
[Translation]
Senator Dagenais: My question will be very brief. The John Howard Society provides services throughout Canada. Recently I read that you were restructuring that organization in Quebec. Why can you not offer the same services in Quebec? I would like to hear your comments on the situation there.
[English]
Ms. Latimer: You're quite right. The John Howard Society of Canada is trying to re-establish or establish services in Quebec, and that is progressing relatively slowly. There are good services being offered through —
Ms. Pate: The association of rehabilitation services of Quebec, ASRSQ.
Ms. Latimer: Right, with Patrick Altimas, who does a lot of reintegration support. We are looking at re-establishing some services, but as yet we're not very functional in Quebec.
Senator White: Thank for being here.
Ms. Bromwich, you talked about CoSA which is successful in Ottawa. It had a great run, to be fair. Has there been a national review or national research piece on the success of CoSA overall that's been released publicly? I haven't seen it. If so, I'd like a copy. If not, I'm wondering why not.
Ms. Bromwich: I know that research has been done. I am a here as a voluntary board member, so our specific staff involved with the CoSA project, I'm not sure at what stage the final report is at. I can ensure that you receive whatever information is available. There has been research done over a period of time, and it has had very positive findings.
It may be that the final report has not yet been publicly released, but I will follow up with you.
Senator White: Congratulations to CoSA. They've done a great job in Ottawa.
The Chair: Thank you to all. I know it's challenging for senators and you as witnesses to get everything onto the record that you would like to. If you have additional information that is focused on what we're trying to achieve through the committee, please send it to us. It would be very much appreciated. Thank you all again.
Joining us for our second hour, from Correctional Service Canada, is Andrea Markowski, District Director, Manitoba/Saskatchewan/North West Ontario District Office; and from the Probation Officers Association of Ontario, Elana Lamesse, President.
Thank you for being with us today. We are looking forward to your presentations. The floor is yours.
Andrea Markowski, District Director, Manitoba/Saskatchewan/North West Ontario District Office, Correctional Service Canada: Good morning, chair and members of the committee. I'm pleased to be here and to have an opportunity to speak on behalf of Correctional Service Canada with respect to this committee's study on delays in Canada's criminal justice system.
I currently serve as district director of parole for Manitoba, Saskatchewan and northwestern Ontario, so I oversee parole offices and community correctional centres in that part of the prairie region. Earlier in my career, I was a parole officer and parole officer supervisor in the Northwest Territories. More recently, before I was district director, I was warden at Edmonton Institution for Women. I hope my experience will allow me to offer you some insight on federal corrections for the benefit of your study.
Mr. Chair, it's my understanding that many of the members of this committee will be familiar with the role and operations of Correctional Service Canada, and I know that our commissioner, Don Head, has appeared as a witness many times in the past. Committee members may recall that Correctional Service Canada's mandate is to administer court-imposed sentences of two years or more. Our role includes the care and custody of inmates, the delivery of a variety of correctional interventions, preparation for release and supervision of conditionally released offenders on parole and on statutory release. As well, we supervise offenders who are subject to long-term supervision orders following the expiration of their sentence.
Correctional Service Canada administers sentences which are the result of criminal court proceedings, minimizing our role in the legal process prior to sentencing. Our involvement in the criminal justice system tends to be downstream, in general, of the criminal process. However, evidence presented in court, including the nature and circumstances of the offences, the impact on victims, time spent in remand custody or on bail will certainly influence the administration of the offender's sentence.
More directly, staff of Correctional Service Canada are occasionally called upon to provide testimony during criminal court proceedings, most notably when the court is considering the imposition of a dangerous offender designation or a long-term supervision order. We also ensure that offenders in our custody are able to participate in legal proceedings and appear in court either in person or by video conference.
It is my understanding that the committee is particularly interested in how Correctional Service Canada administers conditional release, including the recommendation, monitoring and enforcement of those conditions.
Members of this committee are likely aware that conditionally released offenders under federal jurisdiction are subject to both standard and special conditions which are imposed by the Parole Board of Canada. While these conditions may be similar to those imposed by courts for people who are on bail or subject to recognizance orders or probation orders, the breach of condition of federal parole infrequently results in a criminal charge. Rather, breaches and other indicators of escalation in risk result in a reassessment of the manageability of the release and potentially the suspension and revocation of the release by the Parole Board of Canada.
However, the notable exception is offenders who are subject to long-term supervision orders. A breach of a long- term supervision order condition is a criminal offence and can result in a charge being administered by the court.
Standard conditions apply to all conditionally released offenders and include an obligation to obey the law and keep the peace, to report to a parole officer and to police as required, and things like travel restrictions. In addition, special conditions may be imposed by the Parole Board of Canada. These conditions, which are usually recommended by Correctional Service Canada, are tailored to the specific circumstances of the offender's case, their crimes and the level of risk that they present.
For example, an offender who committed sexual offences against children may be restricted from having contact with children or from attending places where children may congregate. Conditions to abstain from drugs and/or alcohol may be imposed on an offender when substance abuse was a factor contributing to the offence. Offenders may be required to reside at a specific place such as a community residential facility or a community correctional centre, and they may also be required to abide by a curfew.
Community parole officers monitor conditionally released offenders and are responsible for ensuring access to a range of programs and services to facilitate their safe reintegration into the community. Offenders are required to report at a minimum frequency, and the parole officer maintains contact with community support such as employers, service providers and other criminal justice partners to ensure compliance and also manageability of risk.
I note that the Corrections and Conditional Release Act, the legislation that governs the administration of federal sentences and parole, makes the protection of society the paramount consideration in the correctional process.
The legislation also limits measures that are consistent with the protection of society to only what is necessary and proportionate to achieve this purpose. These principles guide parole officers during the release planning and the supervision process. Parole officers receive specialized training, annual professional development and have access to a range of specialized tools and professionals who assist them in making appropriate recommendations to the Parole Board of Canada.
Mr. Chair, there are many dimensions to the conditional release process and the supervision of federal offenders in the community. I hope I can provide a further insight and clarity while answering any questions committee members may have. Once again, thank you for the opportunity to appear today.
Elana Lamesse, President, Probation Officers Association of Ontario: Good morning. My name is Elana Lamesse. I am a probation and parole officer, PPO, in Ottawa. I'm also President of the Probation Officers Association of Ontario. I am here representing my association.
As a PPO, I supervise offenders serving probation, conditional sentences as well as provincial parole.
I also prepare comprehensive presentence reports to aid the court in sentencing. Every offender who receives a community sentence undergoes a thorough assessment where we determine, through various tools and ongoing and specific training, the level of risk posed by any given individual who comes before us. As part of our analysis, we are also looking at the needs of each offender and the responsivity issues that must be considered to effectively deal with the offender before us.
Each community release option can and usually does involve a condition of treatment. This often is where the issues with offenders being supervised in the community arise. There is a definite lack of services in general, and when we are speaking about offenders who are typically non-compliant, unmotivated and perhaps dealing with mental health issues or otherwise disadvantaged, the situation is much, much worse. In order to get an offender into programming, particularly substance abuse programming, the wait lists often exceed the term of supervision.
Some agencies have stopped accepting referrals from Probation Services. They now require a referral from a family doctor. Many of our offenders do not have family doctors. These people are expected to attend a drop-in clinic and ask a doctor who is a complete stranger to them for a referral. Again, these are typically unmotivated and non-compliant individuals who have suffered some form of abuse or trauma and have learned over time not to trust. We are essentially setting them up for failure by putting them in this circumstance.
Because we have had such a difficult time getting our offenders into programming, the Ontario Ministry of Community Safety and Correctional Services recently hired 14 program development officers. These are probation officers who are doing programming as well, and they have been tasked with providing programming for our offenders that is not available to them in their community. POAO hailed the initiative when it was first announced, and we still believe that it is a good concept. The issue is that 14 individuals cannot cover all the programming needs for the province.
In Ottawa, we are fortunate to be able to access programming through John Howard and Elizabeth Fry societies. Not all communities have this as an opinion. Delays in receiving or the inability to provide treatment may result in offenders being at greater risk to reoffend, thereby consistently reentering the criminal justice system.
Non-association conditions are regularly used, particularly with domestic violence offenders. These conditions have been problematic in that they generally allow for the non-associate to provide "written, revocable consent'' for contact. This is a condition that is very strictly enforced. In fact, all conditions associated with domestic violence offenders are heavily scrutinized and policy driven. Any time we are discouraged from using our professional discretion as probation and parole officers, there is a greater risk for the matter returning to court.
These are people, not items on a factory line. Each situation is unique and must be looked at on an individual basis. These are situations that are emotionally charged and have a lot at stake for all parties involved. In domestic violence cases, there is often an imbalance of power and control. Perhaps the court is trying to provide more power to the victim by allowing that victim to decide whether or not contact can be given, but the reality is that this is a very complex situation and there are many factors that need consideration. Sometimes the victim is the best person to provide consent; oftentimes not.
Abstain conditions can be problematic from a community supervision point of view. Is it realistic to force an alcoholic to abstain from consuming alcohol or a meth addict to abstain from drugs? To expect an offender to not use or consume but not provide them with treatment is also a recipe for disaster and a recipe we deal with constantly. We are seeing less abstain conditions attached to community supervision orders, but it still occurs rather frequently.
Another condition that poses problems for POs is residency. Not allowing someone to return to the home they know and forcing them to make other arrangements usually results in a stay at a shelter. Once there, it is difficult to abide by any other condition of their order as they try to cope with a transient lifestyle.
One of the biggest hurdles we face is services for the mentally ill. Firstly, I am not trained to deal with the sick mind; I am trained to deal with a criminal mind. A lack of training results in a lack of understanding, which can result in a return to the court system as well.
There can also be unrealistic expectations placed on someone who has mental health issues. I had one such case where the offender was ordered to perform 240 hours of community service. This was an individual who was being hospitalized regularly as a result of his mental illness, and a victory was keeping him out of the hospital for one week. I have no doubt that the sentencing judge had the best of intentions, probably thinking that the offender could get involved with some kind of community agency, and perhaps if he were to feel that had a purpose, he may snap out of whatever was ailing him. The reality was he knew he could not comply with the conditions of his order. So when it became evident that the hours were not going to be completed prior to the expiration of his probation order, he stopped reporting. Who is served by using enforcement on an individual such as this? No one.
I do feel that it is the responsibility of the courts to ensure they are handing down an appropriate sentence. The only way it is possible is by knowing a little bit about the offender who is appearing before them and being aware of the programming available in their community.
Thank you for allowing me the opportunity to present today. It is much appreciated.
The Chair: Thank you.
We will begin with the deputy chair.
Senator Jaffer: Thank you very much for your presentations and welcome to both of you.
Ms. Lamesse, you ended with the issue of mental health patients. I would like an update from both of you as to what has been put in place after the Ashley Smith incident, and do we have any more Ashley Smiths?
Ms. Markowski: There have been numerous reviews and actions following the death of Ashley Smith, including CSC's published response to the 104 recommendations from the inquest. Substantive changes have been made. I didn't bring all of that material with me because my understanding was I was going to help educate you about community supervision and how that would impact on potential delays in the court process.
I would say that there have been substantive changes in approach, service provision and training for staff to ensure that we can do our very best to care for the mentally ill within our care and the small but very troubled group of inmates who engage in self-injury.
I hope that's a helpful response. If it's helpful, we can give you copies of Correctional Service Canada's response to the inquest or other reviews. I would be happy to do that for you.
Senator Jaffer: I know of that response, but I'm anxious to know that there truly are no more Ashley Smith situations or that they are being looked after.
Ms. Lamesse: Being from the provincial system, we are dealing with the Jahn decision, which came down from the Ontario Human Rights Commission, where now we are trying to implement mental health training for all staff. It is starting with correctional staff, and our hope is that it will get into the community. It's in the process of being developed, so it's a new thing. We're hoping that it's effective, but as it stands, there is very little training in terms of working with mentally ill offenders.
Senator Jaffer: The reason why this is important is because they then reoffend and are back in the system.
Ms. Lamesse: Of course, and they're in a system where they don't belong. We don't have anything to offer them.
There is a difference between wilful non-compliance and non-compliance. When people are not able to comply with their orders, then we have to look at it differently. I feel that this entails getting them out of the criminal justice system. They are not being served by us. They are being damaged further.
Senator McIntyre: Thank you for your presentations. As you know, the focus for our study is on court and trial delays.
We have various processes: parole, probation, conditional release, statutory release and remand. As a matter of fact, there appears to be a trend of increases in the remand population in Canada. There has been a great deal of discussion about how to lower the number of people awaiting trial in custody. Which aspects of these should this committee be mindful of during the course of this study, and what impact is this having on court and trial delays?
Ms. Markowski: If I understand your question correctly, you are speaking about ways to mitigate lengthy remand periods. Correctional Service Canada's mandate is post-conviction, so we don't really have direct involvement in circumstances leading to length of remand. I can tell you a lot about what we do in terms of assessing, treating, assisting and reintegrating offenders.
Senator McIntyre: What I want to know is whether there is capacity in the system to deal with a large number of people awaiting trial being released into the community rather than being incarcerated?
Ms. Markowski: That falls under provincial jurisdiction.
Senator McIntyre: So you have nothing to do with people being released into the community and awaiting trial?
Ms. Markowski: Not pre-conviction. We administer sentences that are two years or longer, so we're not involved in that.
Ms. Lamesse: And probation does not supervise bail or get involved in that way. The John Howard Society has a bail supervision program. The probation service does not deal with that.
When we lay breach charges, that has an impact in that it takes so long. In fact, I believe there is, on average, six to eight appearances before the matter is dealt with, and then it's dealt with after the probation has expired. The delays in the system contribute to us not being able to accomplish much with our offenders.
Senator McIntyre: You just don't play a role?
Ms. Lamesse: We really don't.
Senator Baker: Thank you to the witnesses. I have a point of clarification first because of your testimony, and then I'll get to the real question.
The point of clarification is this: Suppose we have a very serious offender. The offender is given a 10-year, long-term supervision order, and the supervisor is Ms. Lamesse.
Ms. Lamesse: I don't supervise.
Senator Baker: If it were Ms. Markowski in her previous occupation, let's put it that way. One of the conditions is that the person not consume alcohol in public, a common provision.
He comes into the supervision office, and he is drunk. You could then, as I understand it, issue a warrant of apprehension and suspension as a breach of probation or to prevent a breach of probation.
I thought that that matter goes then to the Parole Board, which makes an adjudication, but you gave evidence a moment ago that this must then, in the case of long-term supervision orders, go to the court. Could you clarify that point?
Ms. Markowski: A small number of offenders under our jurisdiction are subject to long-term supervision orders which are post-warrant, so a post-custodial period. They are managed quite differently from regular parole or statutory release, and breaches are managed differently to some degree.
The first key response to any escalation in risk or breach of a condition of release is to assess the manageability of risk in the community context, and if it's not manageable, then to issue a warrant — there's authority to issue a warrant — and return the person to custody.
Actually, for a long-term supervision order, the parole officer has a dual responsibility for reporting to the Parole Board and for cooperating and providing information to police and Crown. The board's jurisdiction is only to make a recommendation about the laying of an information, meaning a criminal proceeding in relation to the breach.
Senator Baker: So it must go to the court?
Ms. Markowski: In order for a charge to be laid. Simultaneously, all the information would have been provided to the Crown, and the Crown may have already decided to lay a charge or may decide to lay a charge based on a recommendation.
Senator Baker: Automatically, the person could go back to jail for years for that breach?
Ms. Markowski: The courts will determine the appropriate sanction if they find that there was a breach.
Senator Baker: It was not a long term — and there are very few of those —
Ms. Markowski: I can give you statistics if you want them.
Senator Baker: With regard to a normal breach, the parole officer reports, issues the warrant and then the adjudication is done by the Parole Board. I asked the previous witnesses the question. I don't know if you have an opinion on it, but the Parole Board is not what they call a court of competent jurisdiction for Charter arguments. I don't know if you're familiar with that. Then the person must go to court to have a Charter argument adjudicated, eating up court time.
My question to the previous witnesses, two very well-known lawyers in this field, was that shouldn't we, as a committee, reconstitute the Parole Board to make them a court of competent jurisdiction, just as any other quasi- judicial body in our society, which would then lessen the pressure on our courts? Do you have any opinion on that?
Ms. Markowski: I don't, because it is outside the scope of my expertise. I'm here really to speak on behalf of Correctional Service Canada.
What I can clarify for you is that on regular conditional release, meaning day parole, full parole or statutory release, if there is an escalation in risk, including a breach of one of the conditions or to prevent a breach, there is the possibility to return the offender to custody, but it is not the automatic response. There is a mechanism to review the circumstances and determine if we can put more controls in place, or do we need to protect society by returning that person to custody?
It would be extremely rare for a charge to be laid as a result of a breach of a parole condition. The only parole condition that sometimes results in a charge if it's breached is the unlawfully at large breach. If an offender leaves a halfway house when they are not supposed to or their whereabouts are unknown, police will sometimes lay a charge for being unlawfully at large. How much that authority is exercised varies in terms of jurisdiction. That will lead to a court process, but it does not happen frequently.
Senator Baker: The Parole Board can send the person back to jail for the breach.
Ms. Markowski: Correctional Service Canada will issue the warrant. The Parole Board will render a decision as to whether they will revoke the release or cancel.
Senator Baker: Exactly. They send them back to jail. If there is a Charter argument, the person has to go to court to argue it.
Ms. Markowski: I don't have any knowledge of that.
[Translation]
Senator Dagenais: First of all, I tip my hat to you, because your work as a probation officer is not easy. I would like to go back to the issue of repeat offenders. Even if you try to rehabilitate people, there is always a risk that they will reoffend.
According to a report tabled by the Ontario Parole Board, we need to study the risk of recidivism, and in future initiatives, place more emphasis on the risk of recidivism rather than on the needs of inmates who have been released.
You sometimes find yourselves in explosive situations. How can we reduce the risk of recidivism? Unfortunately, it is a reality. How do you think the situation can be improved? It is quite worrying.
[English]
Ms. Lamesse: My recommendation is always treatment. It's very difficult to get people into treatment as there is not a lot of programming out there. Substance abuse and mental illness are huge. When individuals are self-medicating, the biggest part, for me, is getting them into treatment for anger management, learning how to relate to others, partner assault, all of that. We're in such desperate need for services for our offenders, but in the provincial system, it's just not there.
Ms. Markowski: I'm appearing here with my colleague, but we're talking about two very different systems in terms of how they operate. In the federal system, offenders serving two years or more come into our custody, they receive a thorough assessment, and a correctional plan is developed for them to ensure that all of the needs that relate to their criminal offending can be addressed and risks can be mitigated. We are committed to making that happen as quickly as possible, hopefully cascading them into lower levels of security, and, at the earliest and safest date, returning them to the community under supervision, which we know is the most effective tool to reduce recidivism.
We do find ourselves faced with some challenges in the community in terms of accessing services. That is mitigated by the fact that we deliver a lot of our own programs and services to offenders who are our supervision, including providing some of them with housing.
We work very hard to recruit partners and to encourage the community to live up to its responsibility to address the needs of residents, including offenders, so they can access health, mental health and housing services, etcetera. Our goal, at warrant expiry, is to hand off to the community someone who is fully integrated, independent, employed, well, and able to carry on safely. In many cases we do that.
I have statistics for you about recidivism while offenders are under our supervision and they are very low. For the most part, when offenders return to custody under our supervision, it occurs because of a technical breach of the condition of release.
[Translation]
Senator Dagenais: We are here to examine delays in the criminal justice system. We have to focus our efforts on recidivism in order to avoid having people appear repeatedly before the courts.
[English]
The Chair: You referenced some statistics. Can you provide them to the committee?
Ms. Markowski: I can do that right now, or we can offer them after.
The Chair: That would be helpful.
Senator Fraser: Thank you both for being here.
This is a question for Ms. Lamesse. I was struck by your anecdote about the offender who was sentenced to provide 240 hours of community service when he can't go more than a week without being admitted to a hospital. What happened to him when he stopped reporting? Was he back in front of the courts contributing to the clogging of the courts?
Ms. Lamesse: He was not because he had people working with him who thought outside of the box and maybe bent or even broke a few rules. He should have been breached for not reporting, but again, perhaps if I had less experience and was more concerned about discipline, that would have been very different. I could not justify, in my own mind, bringing him back to court, and I would stand behind that decision.
Senator Fraser: I'm not criticizing you. We're looking at judicial delays and overcrowding in the courts.
Ms. Lamesse: That is a big part of the problem, when individuals are receiving orders that they cannot comply with. They're coming before the court, but the court doesn't know who they are, what they're capable of or what their background is.
Fines were mentioned earlier. We see this a lot in probation as well, where they have to pay $800 a month and can't pay $800 a month. Then I'm placed in a position where I'm a bill collector, and that's not what I'm trained for; that's not serving any purpose. To return that to court just doesn't make any sense. It's a system that is so overloaded with things that don't need to be there.
Senator Fraser: Do you have data on the proportion of cases that end up back in court because of breaches of probation conditions?
Ms. Lamesse: I don't have any data. The Probation Officers Association of Ontario does not collect data. I suppose you would be able to get that through the Ministry of Community Safety and Correctional Services. People are constantly evaluating and reevaluating, but there are certain types of offences and orders where we have no discretion and a breach that has be laid regardless of what's happening. What the statistics are throughout Ontario, I really couldn't say.
Senator Fraser: But you believe, based on your lived experience, that the proportion is high.
Ms. Lamesse: It's very high.
[Translation]
Senator Boisvenu: I have in hand some data on reincarceration from the Parole Board of Canada. In some cases, inmates on day parole have a 55 percent reincarceration rate, which is very high, in light of the fact that we invest a lot in follow-up and monitoring and support.
What concerns me the most are the considerable differences in reincarceration rates from province to province. In Quebec the rate is 47 percent, whereas it is 32 percent in the maritime provinces and 37 percent in the Prairies. Why is the reincarceration rate this high in Quebec as compared to other provinces?
[English]
Ms. Markowski: Just to clarify, I'm not here from the Parole Board of Canada; I'm here from Correctional Service Canada. I'm not familiar with the statistics you're quoting, and I don't know what they relate to. I can speak today, for sure, to rates of reoffending while offenders are under our supervision, and they're very low.
For example, for offenders on day parole under our jurisdiction, the percentage that are revoked — meaning they lose their release — for a non-violent offence is 1 percent, while those losing their release for a violent offence is 0.2 percent. Of course, that goes up as we move into statutory releases that come later in the sentence. Those are offenders that maybe haven't done quite as well: in 2013-14, about 7.4 percent of offenders on statutory release were revoked due to a non-violent offence, but only 1 percent of offenders on statutory release lost their releases and were returned to custody while under our supervision and jurisdiction for a violent offence.
Any offence is serious, and any violent offence is particularly serious, but while offenders are being supervised by us and are receiving services from us, they are quite successful. When they are not, they are mostly returned to custody for technical breaches of the conditions of their release.
[Translation]
Senator Boisvenu: My data is from the Correctional Service. I am trying to understand why there is such a large difference in rates among the provinces. In Quebec, as for other types of criminality, the reincarceration rate is always higher.
[English]
Ms. Markowski: What I can offer to you is if you will share with us the report you're referring to, we will certainly provide you with our commentary on it. But because I don't have it, I do not feel comfortable speaking to it.
Senator Joyal: Comments have been made around the table on the conditions of prisons in Quebec. I would like to table with the clerk an article published today on the front page of the Le Devoir about conditions at the Leclerc prison, an establishment where, since a decision of the Quebec government, women are now sharing the prison with men. That creates a lot of problems and difficulty, and it's certainly not the context in which prisons in Quebec were qualified around the table this morning. I would like to table that with the clerk to be appended to our proceedings today.
The Chair: Is that a provincial facility?
Senator Joyal: Yes.
I would like to address myself to Ms. Lamesse and then to Ms. Markowski.
Thank you for your brief. I read it with great preoccupation because you mentioned on the front page, third paragraph:
There is a definite lack of services in general, and when we are speaking about offenders who are typically non- compliant, unmotivated, perhaps dealing with mental health issues and otherwise disadvantaged, it is much, much worse.
And on the next page, the third paragraph again:
Delays in receiving or the inability to provide treatment may result in offenders being at a greater risk to reoffend, thereby consistently re-entering the criminal justice system.
When I read that and I try to understand the plight of people suffering from mental health conditions, or Aboriginal people — and I will come back to you because you are from Manitoba, Saskatchewan and northwestern Ontario where the Aboriginal population is a real issue — I have the conviction that in fact there is systemic discrimination in the system against offenders suffering from mental health issues or Aboriginal people.
I'm led to believe that sooner or later you will be the object of a complaint to the human rights court, and you might find yourselves exactly in the position as in the court decision released a month ago about the condition of child care on reserves.
You consciously maintain a situation whereby people suffering from mental health or Aboriginal people are at a disadvantage and will be led to reoffend because they don't have the support they are normally entitled to receive from "the government,'' the prison system facilities. Are you not worried about that?
Ms. Lamesse: Yes, of course. It's very worrying.
Senator Joyal: What will you do to address that?
Ms. Lamesse: We are pushing for more programming. The 14 positions that came to us for programming, that's a step. Certainly we're hoping that more programming is made available, more programming geared towards offenders specifically. Female programming is very scarce for us. In our office, where we have several programs that we run for male offenders, there is no programming for female offenders.
There are so many issues that need to be looked at, and we continue to try to get funding and put ideas forth. It's a long battle. We took a step with the 14 positions and we're hoping that now with the Jahn decision behind us and, moving forward from that, that there will be more funding made available for offenders, as well as for the officers who are working with the offenders and are not quite sure what's happening and maybe what the appropriate program would be.
Senator Joyal: Ms. Markowski, do you have any comments?
Ms. Markowski: Correctional Service Canada doesn't have control over who comes into our custody, but we certainly have a high level of accountability and responsibility to address the needs and safely reintegrate offenders. In our legislation we have added responsibilities in terms of addressing mental health needs and the unique needs of indigenous offenders, etcetera.
There has been a significant investment in the training of our staff, in the recruitment of Aboriginal staff and elders and in developing a stream of Aboriginal-informed interventions that are researched. We evaluate and research our programs, which indicate to us that they have been effective at reducing risk.
Where we find ourselves challenged, and we take up this challenge, is where all of that work has not necessarily led to the kinds of increases in conditional release and sustained conditional release for indigenous offenders that we would have liked to have seen. We battle many social forces not of our making that we don't necessarily have control over, but we work very closely with our partners, Aboriginal communities. Our legislation empowers us to have healing lodges that we run or that we have divested to Aboriginal agencies and communities, and with other partners in the communities, to try to combat the impact of the disadvantage that indigenous people have experienced throughout their lives.
I feel very proud of the work that we do, and frustrated that it hasn't translated to the degree that we had hoped to date. But we continuously renew our commitments in that regard. I'm excited about a new stream of programming in the final phases of rolling out nationally.
We had to adjust to offenders coming into our system who have shorter sentences, and we revamped our programs so they have become more integrated and modular and delivered earlier, even starting right at intake. There is a continuum of that programming into the community, and an Aboriginal stream as well. I'm hopeful for the future.
Senator Batters: You may have heard my questions earlier about specialized courts.
Given some of the things you, Ms. Lamesse, were talking about related to mental health issues and addictions, what is your view of specialized courts for drug treatment, mental health, domestic violence, those sorts of things? Do you think that's a helpful thing to reduce court delays, or do you have a different view?
Ms. Lamesse: Again, I don't really feel comfortable commenting on that. We deal with post sentence. What happens in court, we don't spend much time on that.
Senator Batters: Do you find you have some offenders who have been through that type of process and have a different experience when you deal with them than others who have not been through those types of specialized courts? Or have you not experienced that?
Ms. Lamesse: I really haven't experienced it. Perhaps I'm not experiencing it because they're being diverted. I don't really see a difference in my numbers, per se.
Ms. Markowski: To the best of my knowledge, specialized courts tend to focus on the less serious offences. I haven't had a lot of exposure to offenders who have been sentenced by specialized courts.
Any information that the court provides to us in terms of assessments and pre-sentence assessments, psychiatric assessments, all of that information we collect, including the judge's reasons for sentencing, etcetera, and any Gladue reports. We use all of that to help us.
The Chair: Ms. Lamesse, you talked about discretion regarding breaches of probation. You said there is a guideline where you can exercise discretion or not. How does that work? Can you give us an indication of where you have that kind of latitude?
Ms. Lamesse: Where we have the latitude to lay or not lay a breach?
The Chair: You spoke of someone, for example, who can't drink and the futility of that requirement. How often do you send those back to court? I guess that's the goal of what we're trying to determine. Is that a significant problem for you?
Ms. Lamesse: The abstain condition?
The Chair: Breaches. How often are you and your fellow officers sending them back to court?
Ms. Lamesse: Depending on the condition, the breach charge will be laid by police.
Typically, they're not coming into my office drunk. I'm not seeing them drink. I don't have the proof. So typically they're going to be picked up by police, and the police would be laying that breach.
In terms of discretion, where we're dealing with domestic violence, it is extremely policy-driven, and if they don't fit into the box, if they have to go for treatment immediately and if they do not, we return the matter to court.
The Chair: Would Correctional Services of Ontario have the data with respect to the types of breaches and numbers, to give us an indication of how serious a problem this is in terms of the courts? Would you know if a ministry could provide that to us?
Ms. Lamesse: I would imagine they could.
The Chair: Okay, that's something we can pursue with them.
Ms. Lamesse: I could look into that and provide that.
The Chair: Ms. Markowski, we had a witness earlier from Elizabeth Fry who was talking about female offenders, and she was estimating that perhaps 70 percent of those female offenders have required psychiatric treatment at some point in their lives. Is there any profile that the minister of your department keeps in terms of the kinds of offences? Is there a profile that you could provide us with that could give us an assessment of the folks who are back and forth in the system and the gravity of the charges they are dealing with?
Ms. Markowski: We have all of that data, including prevalence statistics around mental health in our populations, and we would be happy to provide that for you.
The Chair: Thank you.
With respect to Ontario, I know the human rights case that you referenced. The Ontario government is required to provide services now. I think they assigned that to the North Bay hospital, but as of last hearing, the North Bay hospital didn't even have one forensic psychiatrist. So I think that's still in limbo.
If you look at the Brockville facility, which this committee toured, they have had a dramatic impact in reducing recidivism rates by giving male inmates real opportunity to become rehabilitated.
Senator Fraser: You just asked my question sort of. I had wanted, for the record, to have Ms. Lamesse describe the Jahn decision, and I think that was what you just did. Do you want to add anything?
Ms. Lamesse: The ministry has been tasked with training the officers in order to better deal with offenders who are mentally ill.
The program was set to roll out last summer. There were labour issues, so it was delayed. My information is that it's set to go again. Unfortunately, I'm not quite privy to what the course is about or how they're going to be rolling it out. But the intent is that every correctional staff member who has inmate contact will be receiving this training, hopefully ongoing training, on dealing with offenders who have mental health issues.
I believe the target —
The Chair: An assignment of 14 treatment beds is my understanding, as well as training.
Senator Fraser: Ms. Markowski, does Correctional Service Canada have a comparable requirement for anybody who is in contact with inmates to have training?
Ms. Markowski: For mental health training? There is a whole suite of national training standards that are based on roles and responsibilities, and comprehensive and widespread training for staff around mental health if staff have contact with offenders.
Senator Joyal: Ms. Markowski, what is the percentage of the Aboriginal population incarcerated in Manitoba, Saskatchewan and northwestern Ontario and of persons suffering from mental health conditions according to your standards?
Ms. Markowski: I don't have those statistics by district. We have those statistics in terms of our overall population, and we're going to provide you with some profile data. Originally it was relating to women, but perhaps we can provide you with our offender profile data to include all offenders and specifically address the rates of indigenous offenders and offenders with mental health issues. Would that be helpful to you?
Senator Joyal: It would be definitely very helpful.
Mr. Nicholson: That will be included in our submission.
The Chair: Thank you both. I appreciate your being here and assisting the committee in its deliberations.
(The committee adjourned.)