SCRA Committee Meeting

SUB-COMMITTEE ON CORRECTIONS AND CONDITIONAL RELEASE ACT OF THE STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

SOUS-COMITÉ SUR LA LOI SUR LE SYSTÈME CORRECTIONNEL ET LA MISE EN LIBERTÉ SOUS CONDITION DU COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

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[English]

The Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Order. I apologize for the delay, for those who were waiting for us. We were scheduled to start hearing witnesses at 10 o'clock. We had some procedural matters that had to be taken care of.

We're very pleased to have Sandra Leonard here today from the Criminal Lawyers' Association. She's chair of the corrections committee.

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Ms. Leonard has a brief, which has not been translated as of yet. That's one of the questions we were discussing. The material is there if someone wishes to get it. We're not going to file it with the committee until it is in both official languages, but she's not going to read from the brief notwithstanding.

We're happy to have your presentation at committee this morning. Go ahead, Sandra.

Ms. Sandra Leonard (Chair, Corrections Committee, Criminal Lawyers' Association): Thank you for the opportunity to speak.

[Translation]

I'm sorry that I did not have longer to prepare our brief and that I'm able to give you the English version only.

[English]

In general, we find the CCRA and its regulations fair in their attempts to balance the rights of the incarcerated person while protecting the public. As a parole practitioner, most of the problems I encounter on a daily basis in my practice are not as a result of the legislation itself but are due to problems of implementation. There are some exceptions, which I will come to later, perhaps the biggest of which may be the detention legislation encapsulated in the Corrections and Conditional Release Act.

Today I want to concentrate, however, on those exceptions, the areas where the Criminal Lawyers' Association sees a need for fine-tuning or some reconsideration of where Corrections is going in the new millennium, this year being the 100th anniversary of the original “ticket to leave” legislation.

My first comment addresses the new tack the CCRA took in separating or recognizing a difference between controlling the first-time federal offender who is serving time for non-violent offences—someone who is now subject to what has colloquially been called the APR, or accelerated parole release legislation—and the more violent offender, who is generally serving time for offences on schedule I.

The creation of the APR category of offender was certainly commended by the Criminal Lawyers' Association, as was, with the amendment, the return to the one-sixth period for day parole eligibility. However, this appears to have created certain problems.

First of all, it is the APR candidates, those who are viewed to be the lowest risk, who are now taking up the majority of the facilities at the halfway houses as a result of the statute, which requires their release. It seems to me that if indeed what Corrections is seeking to do, what the ministry is seeking to do, is to put the resources into those higher-risk, higher-needs individuals, this has caused a problem rather than a solution, because the people who are taking up the resources in the community, who need that more gradual and more supervised environment, are not the people who have the same access to it, even if the parole board has granted their release. The people who are not APR-category are the ones who will be waiting for beds.

A number of suggestions might assist with this problem.

One is a consideration of a reassessment of the test for day parole or a reassessment of the meaning of day parole. Many of the people who fit the APR categories are people who have their own homes, who certainly do not require a roof over their heads. It may be that they are people who should go home at an earlier stage than the one-third parole eligibility or full parole eligibility would otherwise allow. Perhaps that can be accomplished through a variation of the definition of day parole for that particular category of offender. Equally, perhaps there could be a substitution for house arrest or a change in the definition of a work release to have that occur from someone's home.

The work release program is another aspect of the overall types of conditional release that are applauded. Unfortunately, because of the resources there, far too few opportunities occur for the person to be able to return to employment they may already have.

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It's an excellent opportunity for people who do not have that training to get it. It's not necessarily so helpful for those who would like to return to the workforce at a sooner stage and are not able to do so, given the distance from the facility at which they're incarcerated to their homes.

Another suggestion with respect to the APRs is perhaps a distinction between the halfway houses, or at least the bed allocation. Whether that requires a regulation or not is another issue, but perhaps if certain facilities were either supplying beds exclusively for the non-APR candidates or could limit their numbers, that may assist in providing fuller allocation there.

We then go to the other end of the spectrum, which is the people who are the best candidates for detention. The Criminal Lawyers' Association has long opposed that particular piece of legislation that was upheld, and it's obviously been encapsulated in the Corrections and Conditional Release Act. If we seriously believe that the gradual release of offenders through a controlled rehabilitative process is the most effective way to ensure public safety and the management of individuals, then it's our respectful submission that the detention legislation really has no place in the CCRA.

The bent of the legislation is really geared to who we should be keeping in, rather than the release or rehabilitation of offenders. Obviously the community that understands that the high-risk, high-needs person who has been warehoused until the very end of their sentence and has no supervision upon release is perhaps the person in the most vulnerable position of anyone throughout the system...

We're aware of attempted solutions through the long-term supervision legislation that has been passed. We just feel that, given the extremely high rates of detention upon referral... And that has decreased certainly with the allowance for the National Parole Board to make residency a condition upon statutory release. I believe Corrections statistics suggest that since that amendment was passed, approximately 800 people who might otherwise have been detained were looking at residency options, which suggests the value of the supervision, particularly in the last six months of a period before warrant expiry date.

The Criminal Lawyers' Association believes the detention criterion might well be rewritten to make statutory release the presumptive option at the two-thirds mark of the sentence.

One of the problems that has come up in the existing legislation, in sections 129 to 133 of the act, is this. Despite the fact that it is the post-sentencing behaviour we might look to to confirm the offender's dangerousness, the criterion that is already set out stresses at all times the past behaviour and offences. It really does not permit much allowance for change or for rehabilitation while in the system. That is such a minute part of the criteria listed, which essentially are a look at the past behaviour and a look at the offences, which, granted, are often very serious in nature. This means that in assessing the potential risk for the future, the present behaviour often gets lost in a rehash or regurgitation of what has been the offender's past behaviour, and this obviously brings that person to concern.

Again, there is some problem with respect to the value of community programs in the eyes of the National Parole Board. There have been problems in the past with respect to options for supervision, due to the location of the facilities in the first place, which are frequently close to schoolyards or near grounds that it is often preferred the offender avoid. So the very situation of the houses that are supposed to assist is often counter-productive.

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Aside from the detention legislation, if we look at what other changes might be made overall to the legislation, our consideration is the issue of whether this committee is looking at changing the structure of hearings before the National Parole Board.

I'm aware of the submissions in the private member's bill to give victims the right to speak before the National Parole Board. Certainly if victims wish to speak and their comments are not statements simply stressing what may be a perceived inadequacy of the original sentence, which I'd submit would be in the wrong forum, their concerns about risk to themselves and others are obviously relevant information for the board. But the way the statute presently exists, victims are able to pass on those concerns in writing to the board, and there are certainly things that are matters for concern prior to the hearing.

It's the position of the Criminal Lawyers' Association that if the process evolves such that victims are allowed as witnesses at the hearing, other witnesses might also be allowed, and indeed the power to call witnesses should be given to the board. If that occurs, the “judification”—if that's a word—can be seen.

I know there's a certain opposition to that from the board, but it seems to me if you have witnesses, you then have the requirements for notice and disclosure as well. There are certainly hearings where witnesses, particularly of a health professional nature, would be of value. The issue is whether that is essential given the nature of the paperwork and the reports.

Certainly there are forums where an oral submission and a question-and-answer forum may make it easier to get to the response of what may often be a somewhat oblique paper, which usually results in an adjournment if the board has questions or difficulties with what has been submitted. Again, adjournments always work to the detriment of the offender.

The other request may be for recognition as counsel. Presently the offender, the prisoner, has the right to have an assistant present. The assistant may be anyone, and certainly that is their choice. However, counsel is not recognized separately as an assistant, and any of the other parties, aside from the offender, who wish to participate in a hearing may find that their scheduling or their availability is never considered, which certainly makes it difficult to maintain that practice or to fully represent the client when dates are something where you are very much left out of the loop.

The Criminal Lawyers' Association would ask for some recognition of both the right to counsel at parole hearing as well as an alternative to an assistant of one's choice. Also, that recognition of counsel should perhaps allow the counsel's scheduling and that of the observers to be taken into account.

With respect to needs for representation and the right to counsel, there are certainly other areas where the Criminal Lawyers' Association sees some needs. Presently when someone is involuntarily transferred, a 48-hour limit is given to them to rebut the transfer. Generally, 48 hours is insufficient for contact with counsel, never mind submissions to be made to address the situation and fully rebut it. It's asked that there be an extension of that consideration.

Another practicality is that the reasons for transfer frequently are not delivered to the offender who is being transferred until after the transfer is complete, which again makes it somewhat difficult to rebut within the 48 hours, if he's getting the information after the fact.

Secondly, with respect to disciplinary hearings, a right to counsel is given; however, that right to counsel is somewhat meaningless if representation by counsel is always discretionary and depends on the independent chairperson's assessment of whether it's a serious enough offence that counsel should attend.

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The Criminal Lawyers' Association has some recommendations with respect to the whole disciplinary process. There have been difficulties with respect to training and otherwise and a variety of quality in the independent chairpeople who are being recognized.

It is suggested that if the standard of proof at disciplinary hearings is indeed beyond a reasonable doubt, in recognition of the quasi-criminal nature of the charges, then indeed issues such as intent should be valid defences before that court. Perhaps, again, that is a question of training rather than a need to seriously amend the act, but it's something we wish to bring to the attention of the subcommittee.

Further with respect to representation is the issue of segregation. Again, the right to counsel should be more than the opportunity to make a phone call. Indeed, that right to counsel should include an ability to attend the review board of the segregation decision so that one can see what is happening and indeed make one's submissions in place while that occurs.

One other issue has been raised, and it is the issue of information-sharing. Perhaps the problem again is one of implementation rather than the legislation, although perhaps some of the difficulty comes from the word “sharing”.

It has been my experience that “sharing” doesn't necessarily mean that the offender or the assistant gets to read or receive a copy of the information that's ultimately going to the National Parole Board. There is a “sharing of information” sheet, which an offender signs, that indeed is supposed to assist with knowledge of the information that is going forward. Unfortunately, if that paper is not produced, simply telling the person as they review it on their computer screen with them sitting in the office does not assist them when a hearing takes places five months or so down the road, having been deferred for other reasons.

If that paperwork is not wanted, perhaps it should be at the option of the offender who says that such copies are not produced. The wording of the legislation may change “sharing”, which doesn't necessarily mean giving the information or producing the information to the offender or to an assistant of his or her choice.

Lastly, there's a concern with respect to the Correctional Investigator's Office. Very few of us practise parole law, for a number of reasons. One is certainly the issue of funding. Two is always an issue of access to counsel and the ability to be helpful at the time. Third, certainly the Correctional Investigator's role there is a very important one, but the difficulty is that we see the Correctional Investigator, as do many of the people we represent, as having no teeth. It's useless to make recommendations if these recommendations are not going to be followed and if there is nothing to compel some discussion on why those recommendations are not followed. I'm aware of the reporting of the recommendations to the minister. It seems, however, that whether anything acts as a result may be a problem.

So we'd certainly like to see the role of the Correctional Investigator considered, vis-à-vis the importance of their recommendations and the fact that they should be taken seriously.

I have other points, but again, I don't intend to raise them at this point. I invite any questions the members may have at this point. Those are my submissions.

The Chairman: Thank you.

Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, Ref.): With respect to transfers and this 48-hour issue, I have to express some deep concern about taking away the ability of Corrections officials to do what is necessary to correct a grievous situation. I have to tell you very bluntly, I can't possibly agree with the submission you've made here.

Ms. Sandra Leonard: I think perhaps you didn't understand it, or if so, I misspoke myself. I wasn't suggesting that Corrections not be allowed to transfer the person, because the transfer frequently is effected in any event. Obviously if there is an emergency situation, if the segregation unit cannot contain that individual and it's important to move them, that will happen.

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My difficulty is that the period in which the offender has to rebut that situation is 48 hours, and he is expected to, in writing, get that submission or his comments to the warden of the institution. Well, frequently he isn't advised of the reasons for the transfer until after he has left, but he's told, “You need to get a response to us within 48 hours from the time you're notified that you're going to be transferred.”

My comments are simply that while there's a right to call counsel when one is being segregated, that right and those 48 hours don't allow counsel to get the rebuttal. The time period has been seen as something where, if the rebuttal isn't given in that time period, well, the person isn't rebutting it then. I'm just saying that given the realities of the situation, the 48 hours is not sufficient to respond to that matter, not that that 48 hours should be lengthened if Corrections sees it necessary to move the person.

Mr. Jim Abbott: Well, for the sake of time, we'll agree to disagree.

Under accelerated parole release, the Criminal Lawyers' Association commends the return to one-sixth of the time and so on. I believe the public at large is looking at this situation: if somebody has been convicted of a non-violent offence and perhaps has created tremendous loss to individuals in the community, then that individual, the person who has been convicted of that, should serve some time; there should be some penalty; there should be some retribution and they should be penalized.

So again I have to suggest that the criterion of this one-sixth is not or should not be directly related to whether a person is violent or not. Really, in the minds of the public at large, in my judgment, it relates to the fact that if a person has been given a six-year sentence for serious monetary violations, that person should not just be walking on the street, albeit under the control of Correctional Services—I'm fully aware of that. Nonetheless, that person walking around on the street on the 366th day after conviction is not really palatable to the average Canadian citizen, in my judgment.

Ms. Sandra Leonard: If that's a question of what's palatable or not, I think it's a question of how the issue is raised. My understanding of the research done, for example, by Tony Doob at the University of Toronto, assessing what people are looking for, is that they were hoping for restitution where money had been taken. They were hoping to see their compensation orders fulfilled, and the sooner the person was out in the workforce instead of costing the taxpayer a ridiculous amount of money to remain incarcerated, the sooner they felt they might have some chance of getting some of their losses back. So, with respect, I'm not sure that the denial...

I hear a variety of things from members of the public. I hear criticism from people who think that the fellow who has the opportunity to take computer courses when he's in school, when they can't afford them themselves on the street, is a problem as opposed to a benefit. And I suspect that the person who recognizes that life is often harder on the street than in a minimum institution, despite the deprivation of liberty, may find that they would rather have that person out there making some money than sitting in an institution doing a couple of hours' service as a cleaner.

Mr. Jim Abbott: The final one is on victim participation. Again, I must respectfully tell you that we have a serious difference of opinion on that part of your submission as well.

Our feeling is that in specific situations, it is totally appropriate that victims would be permitted to participate in the parole hearing, because in an awful lot of instances, the judge and the jury—the judge particularly, upon sentencing—have heard the tremendous trauma that has been created in the lives of the victims or the victims' families. That is an emotional issue, but it is part of the entire event, and that emotion, that part of the entire event, is lost. It is the position of my party that there really is a very important place in specific situations for victim participation in parole hearings.

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Ms. Sandra Leonard: With the greatest of respect, I see that that participation already occurs. I've attended a number of hearings where victims have been observers, and there is no doubt that the emotional element, as a result of their presence, is felt by all of the parties involved.

The fact is the information they provide to the court is information that Corrections is required to get. I understand that in some cases there are difficulties receiving the victim impact statements, but they are supposed, particularly where they are filed as exhibits on sentencing, to go automatically to Corrections. So that information becomes the property of Corrections and is also sent to the board. It's not information that is not before the board in writing.

I just question the value, having seen a great many victim impact statements. Obviously there are people who are suffering from a great deal of pain. I'm not sure how it assists the board in assessing the risk of that specific offender by somehow measuring the pain of the victim.

There's no denial of the fact that it has occurred, but if what the victim is purporting to do is talk about how the sentence should be lengthened, unless you change the criteria of assessment before the board about whether that person should be released because of the risk issues, I'm not sure that the victims' role in speaking about that answers those difficulties.

Mr. Jim Abbott: Well, again, I thank you for your participation, and as I say, unfortunately, again we agree to disagree.

The Chairman: Thank you, Mr. Abbott.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Thank you for your presence and your presentation.

Just to pick up on that last point, having worked in the system myself too, I see the importance for victims simply to be heard and the importance of a victim at least feeling that their participation at a parole hearing, whether it impacts or not... And I'm not saying it always should, and I fully respect what you've said about the need to assess the danger to society. You yourself have mentioned in your submissions that there is a time when victims might have a legitimate concern about the release and the location.

Emotion is always present. In the criminal justice system—and I've seen it and participated in it myself—often we tend to try to desensitize ourselves and make it a very sanitary world, whereas for victims, at the very first instance, that's gone for them. It's very personal for them.

So I have to agree with my friend in the Reform Party that there is a need for greater participation. Whether that, in the grand scheme of things or in the final decision, impacts, the perception for them is extremely important.

We have to get away from this notion that the emphasis is solely on the offender. The emphasis should be on the greater community and sometimes on the victim too, even at the parole hearing. So I respectfully disagree with that philosophy as well.

Further to that, I'd like to ask you a question with respect to your comments on the Correctional Investigator. You've said the Correctional Investigator is sometimes perceived as not having enough teeth. I would ask your opinion, or at least I'd like to get a feel for how you would react to the suggestion that there should be a similar office for victims—that is, an office where they could receive information about parole eligibility dates, progress reports, efforts by the inmate to participate in rehabilitative programs, and complaints they might have because of contact. I know that seldom happens, but there are occasions when inmates can pass information along to victims. We saw that most blatantly with Clifford Olson.

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So an office with powers along those lines and a budget at least equivalent to the Correctional Investigator...

Ms. Sandra Leonard: Presently you have a victim liaison officer at each institution. Presently you have victim liaison officers with the National Parole Board, who control the flow of information. I'm not sure that the creation of a separate office to monitor this doesn't duplicate what already exists.

Mr. Peter MacKay: Do they not have individual liaison officers at each institution for prisoners as well? I'm suggesting a national office the equivalent to a Correctional Investigator, with the same essential budget and a slightly different mandate, obviously, but aimed at information exchange—a contact, a flashpoint, where victims can go at a national level.

Ms. Sandra Leonard: Again, I see their desire for the information. I'm not sure that's the best way of providing it.

Mr. Peter MacKay: Okay.

I take it from your remarks—and please correct me if I'm wrong—that you are advocating, at least on behalf of the Criminal Lawyers' Association, greater participation of lawyers after the fact, that is, after the trial has occurred, the sentencing has occurred, and the inmate is paying their debt to society. You're saying lawyers should be brought into the fold in a more tangible way at these hearings, such as disciplinary hearings and parole board hearings. That's the position you're putting forward.

Ms. Sandra Leonard: Yes.

Mr. Peter MacKay: Okay.

And with respect to the transfers, you make a very valid point. If the reasoning hasn't been provided, then by all means, even a criminal... I shouldn't say “even”. A criminal should certainly be given the opportunity to make full answer in defence.

But isn't it fair to say that most inmates, at least in my experience, have fairly regular contact with their counsel and in fact there is an ability for them to make quite regular calls, particularly when they find themselves in a situation where they're in conflict with the institution or the system?

Ms. Sandra Leonard: No.

Mr. Peter MacKay: No?

Ms. Sandra Leonard: That's quite incorrect.

First of all, given the federal phone system, anybody who comes into the federal system for the first time is required to give a list of all the numbers of people they want called. The number of people they can call is limited.

They need to approve counsel. If they have finished dealing with criminal counsel who have represented them on the charges, there's probably little expectation that that person is going to continue representing them, unless they perceive difficulties going on.

Perhaps it's analogous to this situation: very few counsel I know of get their retainer before the client gets arrested and requires the bail hearing. In the same way, very few counsel are on deck and ready when someone is in what would otherwise be considered an emergency situation and needs immediate assistance. The calls are to be facilitated in that situation, but again, if counsel is in court and this happens during the day, it's unlikely to go through. If it happens at night and they get through... There is no official duty counsel to pick up the phone in the same way as when someone is arrested. There's a duty counsel to answer the phone for those arrested throughout Canada.

Mr. Peter MacKay: This will be my last remark, keeping in mind that the members opposite have questions.

In your presentation you talked about public perception—and I think we can take it further than that and call it public cynicism—about the criminal justice system and more specifically the parole system, Correctional Services.

I'm interested in your reaction to a call for truth in sentencing, which I know is a simplistic term. Perhaps there's a lot of misinformation about that, just as restorative justice has taken on different meanings for different people.

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It's a simple phrase, but it does resonate with people, because when they hear that an inmate has received six years and is out in 18 months—that's just the extreme example, but it happens—that severely undermines public confidence. I know it's a very complicated issue, and I'm not trying to simplify it, but do you sense that there would be a greater public confidence if sentences truly did reflect what the original judge had intended?

I know it's not static. That's only a snapshot of a moment in time, when the judge has before him the facts of the case, the impact, the criminal record, and all of the factors that go into sentencing. But the actual sentence, it seems to me, is becoming far less indicative of what the original judge intended.

I keep in mind that rehabilitation is extremely important. That's a big part of the whole system. But public confidence is something that we as elected officials always have to keep in mind, and that's the input we're continually getting, I suggest.

Ms. Sandra Leonard: The problem is twofold.

The first problem is lack of education. Quite frankly, when people read things in the paper, no, they're not aware of the parole periods. They're not aware of good time. They don't understand what statutory release and two-thirds are.

Frequently you see parole violators and you look at the person who isn't on parole. You don't see a response from the board saying, “Look, we had no choice. This is why this person was released.” So lack of education is a major difficulty. People are not aware of it, and that may apply to some judges as well, who don't understand the provisions post-sentence.

At the same time, when they make their sentence, they're fully aware of our decision to separate the functions of the judiciary in sentencing someone and the functions of the board in having discretion as to at what point they are capable of release. That is perhaps the response or the reason for part of that difficulty.

If you were to change things, it would be to say what? When you sentence someone for murder, you say, “This is a life sentence, and your parole eligibility is being set at such a period of time.” Perhaps a greater certainty would involve saying, “This is a six-year sentence, and your full parole eligibility will be at this time.” As the provisions of the Criminal Code now allow, it's increased to a period of half. I don't know if that would assist.

I certainly don't think you can change the sentencing and expect what the appropriate level of supervision is going to be after that is imposed, without to a large extent scrapping the existing system, because that implies that the judge would be aware of the appropriate periods on probation or supervision, akin to the supervision they'd undergo on parole.

Mr. Peter MacKay: Do you think the original sentencing judge should be included in the parole hearing?

Ms. Sandra Leonard: Comments from the sentencing judge are solicited, particularly if they haven't already been made, if they haven't received those reasons. I'm not sure how many judges would wish the input at the parole hearing, given the bifurcation of duties. Again, if you say you need to be aware of your job post your sentencing responsibilities, then yes. But there's this fiction that no, we don't know what happens after sentence, or it's not our job to take into account at which point in the sentence the correctional authorities will deem that person appropriate for release.

Mr. Peter MacKay: Thank you very much.

The Chairman: Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Ms. Leonard.

In the section in your brief on accountability is the statement:

The internal grievance procedure is largely seen by inmates as a joke, in which their use of the prescribed procedure is subject to detrimental internal ramifications.

That sounds like very diplomatic language. What do you really want to tell us there? What does “detrimental internal ramifications” mean?

Ms. Sandra Leonard: A number of people have expressed that whenever they grieve issues, things don't happen as a result.

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It's very easy, when someone is criticized for not providing the paperwork on a relationship that is... I'm talking about case management officers. A frequent complaint is that paperwork, for example, isn't prepared in a timely enough fashion to allow the person to participate close to their eligibility dates. A person who grieves that says that the case management officer is then not responsive to any of their desires to get programming to do that. Why? Because this grievance is seen as a black mark that has to be investigated at other levels and responded to. Things often turn into what is perceived to be a personal contest, as opposed to a way of rectifying what they see to be a difficulty with case preparation or—

Mr. Paul DeVillers: So it's that perception that prevents inmates from grieving, or from getting the benefit of a grieving process?

Ms. Sandra Leonard: The perception is that when they grieve things, they are not solving the problem; they are creating more problems for them, as a result of the fact that the reaction of the institutional officials to the grievance is not helpful.

Mr. Paul DeVillers: And this position is based upon what—information you've received from inmates?

Ms. Sandra Leonard: Largely anecdotal representation, as well as, to a certain extent, meetings of the Prison Law Association, with my colleagues across the country sitting down at meetings such as the consultation in April 1998 with Corrections, in which a variety of parties were involved. Certainly the union representatives of guards, for example, had a number of concerns that the personal relationships end up getting tied up in the grievance procedures, such that remedies get lost.

Mr. Paul DeVillers: The other recommendation I'm interested in is your recommendation with respect to subsection 179(3), which deals with the recommendations of the Correctional Investigator. You're stating that because these are not binding, you would recommend repealing the subsection and that there be “a requirement that all recommendations be reviewed and acted upon.” Do you mean we should statutorily say that they would be necessarily accepted? What do you mean by “acted upon”? What's your concept of that?

Ms. Sandra Leonard: There's the whole issue of reasonableness. I'm not sure at what level you import the reasonableness and reflect on the ability of Corrections to fulfil the recommendations, but it seems that where the recommendation is as a result of their investigation and discovery that some wrong has been done, that's a recommendation that should be followed.

Mr. Paul DeVillers: But you're not suggesting that it necessarily has to be accepted. You're saying “reasonably and properly responded to” is what you would like to see in the legislation?

Ms. Sandra Leonard: Yes, and the problem is this attitude: “Here is your recommendation. Thank you very much. We'll go out and do whatever we please, which is largely to ignore any of your recommendations.”

Mr. Paul DeVillers: Okay. Thank you.

Thank you, Mr. Chair.

The Chairman: Mr. Wappel, do you wish to use the latter half of the time?

Mr. Tom Wappel (Scarborough Southwest, Lib.): Sure. Thank you, Mr. Chair. I have just a few quick questions.

First of all, thank you for appearing.

Does the Criminal Lawyers' Association agree with the purpose set out in section 3 and the principles set out in section 4 of the CCRA?

Ms. Sandra Leonard: To protect the public, and the principles? I think so.

Mr. Tom Wappel: You think so, or do they? Do criminal lawyers agree with the principles set out in section 4 and the purpose set out in section 3, the purpose being “to contribute to the maintenance of a just, peaceful and safe society”, and one principle being, among others, “that the protection of society be the paramount consideration in the corrections process”?

Ms. Sandra Leonard: I don't know that I'm speaking for my association. Am I speaking for all criminal lawyers? No. I am sure that, as always, there are colleagues who would disagree with me. Do I accept the reasons for those principles? Yes. As a practitioner, does it seem eminently reasonable to protect the public? Of course. That's a motherhood issue.

Mr. Tom Wappel: Excuse me; do you speak for the association in your paper?

Ms. Sandra Leonard: Yes.

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Mr. Tom Wappel: You said something; I believe your words were, “first-time federal offenders serving time for non-violent offences”. Would you agree with me if I were to say that most first-time federal offenders are not first-time offenders?

Ms. Sandra Leonard: I can't say that. I don't have the statistics, but no, I can't say that. My experience has been that there are as many first-time offenders who have had no other prior contact with the law as there are people who have horrendous records that go back to the age of 18 and are numerous pages long.

Mr. Tom Wappel: So should a person who is a first-time offender—that is to say, convicted, for the first and only time in their life, of a criminal offence—be treated in the same way as a person who is a first-time federal offender but may have 20 convictions, for which they were sentenced to provincial time?

Ms. Sandra Leonard: He is not. That is the beauty of the review process. If there is anything in the background of the individual with the record that suggests violence or...

Mr. Tom Wappel: What if it suggests continued non-violent criminal behaviour?

Ms. Sandra Leonard: Then the conditions put on that person are very different.

Mr. Tom Wappel: And you agree with that?

Ms. Sandra Leonard: That those conditions should be different?

Mr. Tom Wappel: That it's a legitimate thing to look at, a person's record?

Ms. Sandra Leonard: Of course.

Mr. Tom Wappel: And whether or not they are going to continue to repeat or are likely to repeat, based on past performance?

Ms. Sandra Leonard: Yes.

Mr. Tom Wappel: Whether or not it's federal or provincial time that they've done, yes?

Ms. Sandra Leonard: Yes.

Mr. Tom Wappel: Okay. Should a person be automatically released early where there's no evidence of rehabilitation, under the appropriate automatic release provisions?

Ms. Sandra Leonard: If the issue is whether they are rehabilitated, if the issue is whether you think that person is going to offend prior to the warrant expiry date, and if the answer to that question, despite their “lack of rehabilitation”, is no, then the answer perhaps is yes, because jail isn't necessarily assisting or doing anything for that person.

Mr. Tom Wappel: I'm not quite clear on the answer. If a person has shown no evidence to the Correctional Service of Canada of any rehabilitation, no evidence that they've understood that what they did was a crime, no remorse, should they be automatically released early, simply because it was a “non-violent crime”?

Ms. Sandra Leonard: Not necessarily.

Mr. Tom Wappel: Thank you.

You talked about section 129 in your paper. The association is against that, right? That's what I took—review of cases, gating, detention during the period of statutory release, and that sort of thing?

Ms. Sandra Leonard: We're against keeping a person in to the last day of their sentence and releasing them without any supervision. It seems to me that if you agree that a gradual and supervised reintegration is what is of most assistance—and that is a fairly large premise, but the bottom line is, if you accept that—then that's the one piece of legislation that flies in the face of everything else the Correctional Services is purporting to do with respect to their programming and their supervision.

I'm certainly well aware of arguments from colleagues such as Mr. Greenspan, who has said, “Let's trash the whole system and say to heck with it. Here's the fixed thing; throw supervision out the window. Throw it out completely so that there isn't any supervision.” But it seems to me that if you're accepting that the people who need the most supervision are the highest-risk people, and if you accept the fact that these people are coming back to the community and the best way to protect the community is to make sure they have supervision and programming in the community—that they have some net there—then detention legislation does not encourage that. It encourages quite the contrary. It says, “Let's be safe. Let's make sure that anybody we think is a potential risk...”

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We're aware of what's going to happen. The experts themselves complain frequently that they can't properly assess risk, and they don't do a very good job of it, because the people who are released on statutory release and the people in detention tend to do about the same. Does that suggest that they've protected society for any greater period by keeping that person warehoused for an additional third of the time?

Mr. Tom Wappel: Well, your suggestion is to automatically release everybody after two-thirds.

Ms. Sandra Leonard: No, I'm saying the presumption, rather than assessing how do we keep people in, should be how do we let them out? That question—How do we let them out? —recognizes the fact that at some point they are going to return to the community—

Mr. Tom Wappel: I understand that.

Ms. Sandra Leonard: —and that they need some help getting there.

Mr. Tom Wappel: But section 129 is restricted to violent offences—schedule I and schedule II—and there's no denial of a parole review. It's simply to determine whether or not they should be released.

Ms. Sandra Leonard: Pardon me. The minute there is a review of the case to decide whether that person should be detained... And let's face it. If they're coming into the system and they're charged with a schedule I offence, and if there's been anything more than one schedule I offence in their history, the likelihood, given the criteria, is that they could well be detained, particularly given programming dates and other problems.

Mr. Tom Wappel: Given the criterion of protection of the public and the non-infallibility of risk management and risk review.

Ms. Sandra Leonard: Yes, of course.

Mr. Tom Wappel: And you've already said you agree with the principle of protection of the public.

Ms. Sandra Leonard: I agree, but the problem is you are dealing with the public. You are dealing perhaps with parties involved who, I've said quite candidly, want to make no mistakes. There is no toleration of any risk, and that is reflected in the decisions that are made.

Instead of attracting a very small portion of the population, the detention statistics and everything else have increased over the years. Instead of attracting a very small part of the population of dangerous offenders, those statistics have increased over the years. So obviously we either have a lot more dangerous offenders than we're aware of or the purposes of the original legislation were not correct.

Mr. Tom Wappel: This will be my final question, Mr. Chairman. Thank you for the indulgence.

You recommend the abolition of subsection 179(3), which—

Ms. Sandra Leonard: Or its replacement.

Mr. Tom Wappel: Well, your paper says it should be abolished. That may be valid, but the effect of that would be to require the commissioner or the chair of the National Parole Board, in every case where the Correctional Investigator makes a recommendation, to accept that recommendation. That would be the effect of abolishing that.

There would be no discretion whatsoever, and the Correctional Investigator's recommendation would be the final word. Is that not the fact, if you take out subsection 179(3) as per your recommendation?

Ms. Sandra Leonard: Not if you replace it as suggested. I think I've already answered that question.

Mr. Tom Wappel: Where does it say “replace”? Oh, “and replaced by a requirement that all recommendations should be reviewed and acted upon.” Well, what does that mean? Suppose they're reviewed and not acted upon. Isn't that the same thing as saying they must be accepted?

Ms. Sandra Leonard: No. I apologize. I think I've answered this question before. It's been put to me, where do we go with this? It seems to me the problem is that you make recommendations and you don't take them. What's the point of making the recommendations?

Mr. Tom Wappel: But there is a follow-up procedure.

Ms. Sandra Leonard: There needs to be a process.

Mr. Tom Wappel: There is, and that is to report to the minister. The Correctional Investigator reports to the minister and advises, “Minister, I made recommendations. The head of the Correctional Service did not take them. It's in your bailiwick now.” And then it becomes a political issue, presumably, at the point when the Correctional Investigator makes his report.

I'm not suggesting that's perfect, but it isn't as if there's no follow-up if the recommendation is not accepted. The minister has to be made aware of it if the Correctional Investigator feels that strongly about it.

Ms. Sandra Leonard: I don't believe that keeping it in the arena simply as a political solution does anything for the aggrieved inmate. If a recommendation has been made because a wrong has occurred, a remedy should be attached to it. At the present time, those recommendations for remedies are largely ignored.

So it seems to me there needs to be some way of making those recommendations or making remedies available to the individual who's aggrieved. That doesn't occur with the present situation.

Mr. Tom Wappel: Thank you.

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The Chairman: Thank you.

Mr. Abbott, do you have more questions?

Mr. Jim Abbott: I have just an observation, if I may, on the overall tone of your submission. When I take that overall tone and the direction that your association, your members, would like to take, and put that up against some of the...

I freely admit I'm totally a novice at this, but in the few instances when I've had the opportunity to go into medium-security and especially maximum-security institutions, in very many of the situations involving discipline and control, what should be tools in the hands of the guards are really severely restricted by the kinds of things contained in your submission.

I apologize to you, because that is really a very broad blanket that perhaps would be very difficult for you to respond to, and I don't intend it that way. I'm just suggesting that there is a feeling of frustration, in my judgment, on the part of the people who are working with the inmates, particularly in difficult situations, and hence on the part of the population at large, with the whole question of, truly, the protection of society as opposed to the “rights” of the person who is incarcerated.

I would suggest, with respect, that this is probably an uphill battle on the part of your association, to try to turn that corner and—though I'm sure you're not in this for sympathy or anything else—to gain some sympathy. Again, at the risk of being repetitive, there is this feeling of frustration at really inhibiting the ability to manage some potentially violent and potentially serious situations.

Ms. Sandra Leonard: I've never had any guard express to me that the right to counsel has inhibited their ability to control a situation.

Mr. Jim Abbott: Well, if I may, I am aware of one situation where a body search had taken place, and a lawyer became aware of the situation and really created a situation that became a very serious problem for the people who were involved in that institution. This kind of thing is ongoing.

As I say, I apologize, because what I'm saying here is so broad and such a blanket that it is difficult—and I admit that it is difficult—for you to respond to. I'm just acquainting you with the fact that there is this feeling of frustration on the part of the people who are involved in the firsthand management of people who are incarcerated.

Ms. Sandra Leonard: I agree. I'm certainly aware that there is some feeling of frustration. I'm not always sure of the exact cause or the exact roots of that frustration.

Obviously anybody who has attended Kingston Penitentiary or other maximum-security institutions is aware of what can be a very tense or a very stressful environment. Part of that is that's what happens when we put people in cages. Perhaps some of the people belong there, but when we talk about rights, it seems to me people have a right to be treated as people, and our difficulties occur when we forget that, regardless of the wrongs they may have done, they're still deserving of being treated as people. That's where some of the difficulties come.

Mr. Jim Abbott: Here's one, just off the top of my head. In one of the institutions I was in, there was the restriction of unreasonable search of the inmates' cells and so on and so forth. They were running a situation where, I am told—fortunately I haven't smelled it, but I understand it's absolutely vile—they made tomato booze, or alcohol made from ketchup. Alcohol made from ketchup can be made very quickly and it's very potent.

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When the inmates got a sufficient quantity of the makings of this brew, they would make sure they put it into a cell that had just been inspected. In other words, the guards are restricted. It's that kind of thing, where the guards would have to get the warden to agree to do something really unusual and really out of character that might interdict the brewing of that home brew, which in turn would avoid the violence to the people and the destruction of property.

It's these kind of restrictions that end up driving an awful lot of us laymen really wild, particularly on the input of guards who have to deal with that kind of situation.

Ms. Sandra Leonard: Given the basis of reliable sources and other rumours and innuendo that may or may not be founded, as a standard basis for saying, “Do we have grounds to go in here? Are there security issues at risk?”, I'm not sure how that part of the legislation is a problem. It seems to me a reasonable basis that before you go into places, you have the suspicion to do it. And it seems to me, from what you're telling me, that there should have been some information that told them this had been moved in the first place. So I don't know why that would have been a problem.

Mr. Jim Abbott: I'm just suggesting that the constant threat to the guards' having the ability to restrict that kind of activity...

We have to be careful, on one side of the coin, that we do not create inhuman cages, and I'm not advocating inhuman cages. On the other side of the coin, we have to make sure we still leave things within the discretion of the people who are involved in the management of some people who are very hard to manage—that we still leave them the ability and a broader latitude, a broader discretion.

I referred to this when we were talking about this 48-hour thing earlier, when I was asking the question. There seems to be a constantly increasing restriction to the ability to manage very, very difficult situations, on the basis of representations that are made on behalf of the inmates by lawyers, which is fine; that's their right. I'm just saying it's a constant fight to try to maintain a balance of being able to truly manage a situation and, on the other hand, to be restricted and to be fearful of further restriction. That's all I'm suggesting.

Ms. Sandra Leonard: I don't know that there's a comment. Yes, it's a difficult balance. I'm not sure that the legislation makes that balance more difficult. It seems to me that, again, if there are problems, they're problems of implementation and they're problems involving scheduled walks.

You ask how things like this can happen. It may have something to do with how frequently the people who are supposed to be spending time on a daily basis with the inmate or offender are really aware of what's happening or what's not happening. It's quite common at minimum institutions, despite the timing and the mobility, to see a variety of people clustered in that one duty office. Obviously if there isn't interaction with the offender and the inmate, the knowledge of what's happening is going to be substantially less.

To some extent, yes, the paperwork that has resulted, the requirement to produce paperwork for everything, is a very obvious response to a number of the inquests in this province, for example, and is obviously, on some level, the only way for things to be documented and verified and for information to get back and forth. So it's quite obvious where that stems from. But that obligation to write the paperwork, to do this, to cover the file, to cover their butts, quite frankly, prevents the interaction that might keep them better advised or might allow them to actually work directly with the offender. They spend so much time having to write about it that the amount of time being aware of what's happening, etc., is reduced.

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The Chairman: Thank you.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I would like to make a general comment that picks up on what my colleague Mr. MacKay said to Ms. Leonard. The comment reflects my philosophy generally speaking, or at least the philosophy I would like to bring to my work on this committee.

Mr. MacKay referred to perceptions. I am somewhat concerned that there might be confusion between public safety and the public's perception of safety. I agree that the committee can work to improve the provisions of the Act that will ensure greater public safety, but its mandate is not necessarily to deal with problems involving the public's perception of safety.

[English]

For instance, Mr. MacKay referred very briefly to the possibility of enlarging sentences. We have a perfect example down in the States that there is no direct relation between the harshening of sentences and reduction of crime rate; on the contrary.

So we have to be very cautious about the changes we want to make to this legislation, in order not to fall into the trap of giving superficial assurances to the public, which could verge on demagoguery and populism, to the detriment of the actual changes required to improve the system we have, which is not that bad after all.

It seems to me that when we deal with perceptions, we fall into the problem that is created by, for instance, the number of private members' bills the justice committee will have to deal with. I would like to make sure that, all along our deliberations, we don't lose sight of this fundamental difference about what would be reassuring to the public and what would be ensuring better safety for the public.

The Chairman: Would you like to comment on his comment?

Ms. Sandra Leonard: I wholeheartedly agree.

The Chairman: Is there anything else, Mr. Saada?

Mr. Jacques Saada: Yes. I'd like to thank the presenter. I'm sorry; I should have started with that. Thank you very much.

[Translation]

Thank you very much.

[English]

The Chairman: Yes, Ms. Leonard, thank you very much for attending here this morning. I think we've concluded the queries. We appreciate your presence and the input you've been able to provide us with. Thank you.

Ms. Sandra Leonard: Thank you.

The Chairman: There being no further business, I suppose we'll adjourn for the day. Thank you.