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]

Monday, February 15, 1999

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[English]

The Chairman (Mr. Paul DeVillers (Simcoe North, Lib.)): I call this committee to order, please. This is a sitting of the Subcommittee on the Corrections and Conditional Release Act, a subcommittee of the Standing Committee on Justice and Human Rights. We have witnesses with us.

Before starting, I'd like to ask members, those who are available, if we could stay after we've heard the witnesses and discuss the arrangements for our trip upcoming in the first week of March.

We have with us, from the John Howard Society of Canada, Mr. Graham Stewart; from the Canadian Association of Elizabeth Fry Societies, Kim Pate; and from the St. Leonard's Society of Canada, Elizabeth White. I understand there are arrangements between the witnesses that Mr. Stewart will start, followed by Ms. White and then Ms. Pate.

I would ask the witnesses to restrict their submissions to approximately 10 minutes to allow for sufficient time for questions from the members after.

Mr. Stewart, would you like to go ahead?

Mr. Graham Stewart (Executive Director, John Howard Society of Canada): Thank you very much. I appreciate the opportunity to come and discuss this legislation with you.

The John Howard Society is a voluntary organization nationwide with a presence in 65 communities. Legislation such as the CCRA is very important to us. We have a network of services and concerns with respect to criminal justice that often take shape through this legislation.

I have submitted—and I believe you have them—two briefs, one on the detention provisions specifically and the other on a range of other issues relating to the CCRA. We have presented two briefs, partly because the reviews have been combined for the two matters, and we thought it was important that the matter of detention not be lost in the broader review of the CCRA as a whole. The issues of detention are of substantial importance, but not...

[Technical Difficulty—Editor]

I intend to speak first on the matter of detention and then talk generally about the CCRA and the specific issues or suggestions we have there.

I would like to begin by saying that we're in general agreement with the purpose and principle of the act. The act is substantially sound legislation, although there are some problems. We're very much in favour of the purpose of corrections as set out in the act, focusing on safe and humane custody and supervision, and of the rehabilitation of offenders and their reintegration into the communities as law-abiding citizens being the primary method through which public safety is achieved.

Many of the problems today with corrections are as much a matter of practice as legislation, and not all issues can be addressed through legislation. With that in mind, I'd like to begin by discussing the matter of detention.

It is important to note that detention as a measure was not brought in in order to enhance punishment, but was intended to enhance public safety. The focus of the legislation is really on the future behaviour of people rather than on their past behaviour, and that's always problematic for a criminal justice system that is based on due process, presumption of innocence, and so on.

At the time that the detention provisions were brought before the House, members of Parliament, this committee, the Senate, and others sought and received continual reassurance that these provisions would be used rarely and only in the most demonstrably necessary circumstances, that they would only be attached to the palpably dangerous offenders, and that the measures would in fact lead to enhanced public safety.

The use of preventive detention puts a fairly heavy onus on those who would use the provisions to ensure that they are used properly and in the ways that were anticipated. This review is very important in that respect, because the evidence that has been presented so far shows that detention has failed in all respects. Any serious review of detention will lead to the fairly compelling conclusion that it's been ineffective, it cannot be fixed, and it has created more harm than good.

A number of key questions should be the basis on which the detention provisions are reviewed.

The first question is, what has been the pattern of use with detention to date? The fact is that the use of detention has far exceeded what was anticipated at the time the original legislation was passed. At the time, officials estimated that the detention provisions would be used in about 100 cases per year and about half of those would actually be detained, with the remainder being placed in the other alternative provisions that were available.

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The fact that the anticipated infrequent use of the provisions was stressed so often in the committee and Senate hearings suggests that the government of the day felt this assurance was necessary because of the other potential problems associated with the act.

While the rate of detention was relatively stable for the first three years of the act, since then it has shot up dramatically and in more recent years has been at about five times the maximum rate that was anticipated at the time of that testimony. The detention rate has gone from 4.2% to 10.7% of all those coming up for statutory release.

Reliance on the other options that were available, such as one-chance supervision, residence, and so on, has also declined substantially in favour of using full detention. Detention as a percentage of all decisions rose from 29.7% in 1986 to 91.3% in 1995-96.

In most recent years detention has dropped somewhat by about 20%, but that's generally been attributable to the use of a residence requirement attached to statutory release. This small decline in the number of detention cases in fact has translated into an additional 845 cases being subject to the residential requirement.

To put this into perspective, it's worth noting that 12% of those in statutory release will commit crimes, while a full 26% are subjected either to detention or to residence requirements on the basis that they are particularly dangerous. So in fact the group that's identified as particularly dangerous is more than double the number that commit any crime whatsoever.

The second question was, have the correct people been identified for detention? My previous comments certainly raise doubts about that, but substantial research has been conducted by the Correctional Service of Canada on the offences committed by those who have been detained in comparison to other groups, such as full parole and the statutory release group.

The growth in detention seems to be in spite of the evidence that those selected for detention do not as a group represent the highest risk. Research conducted by the Correctional Service shows that those who have been detained are less likely to commit criminal offences than those who are released on their statutory release date.

In fact National Parole Board detention decisions based on subsequent reoffending were wrong in at least 85% of the cases that have been considered since this legislation took place. To quote the research by the Correctional Service of Canada:

Comparison of recidivism for statutory release and detention using a two-year follow-up period indicates that the recidivism rate for the statutory release group was 37% compared to 17% for offenders who were detained to warrant expiry and then released. In terms of violent re-offending (Schedule 1, murder), detained offenders had a recidivism rate of 16%, while the statutory release group had a rate of 19%.

This tells us that when we look at the dramatic increase in the number of people being detained and the fact that as a group they appear to be one of the groups least likely to reoffend, factors other than dangerousness really drive the decision-making process. That should be of considerable concern, because that's clearly contrary to the intentions of the act.

The third question is, could significantly better results have been achieved through amendments to the act or in practices relating to detention? The fact is that with or without detention provisions, just as many dangerous offenders are being released today as were prior to the act.

The average term that a person is detained is 400 days. What this tells us is that after the first cohort went through, or after the first 410 days or so that the legislation was in place, we then had again the same number of people being released. They served longer, but the release rate was the same. The legislation in fact created 410 days of increased safety, and that was in 1987-88. The overall risk to the community would have been the same, even if the predictions of violence had been right.

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The fact is we've had 10 years during which the National Parole Board and the Correctional Service of Canada have had opportunities to research, to review their policies and practices, and to amend their practices in order to obtain better results, and that's not happened.

The errors of detention decisions are not of degree, and it's not a matter of simply improving practice. The errors are of huge magnitude and are almost unfathomable in the sense that a decision-making process that's targeted the very most dangerous in fact is identifying the group that's less likely to offend.

The fourth question is, have the benefits of detention been seriously undermined by the costs of the provision? The correctional processes that exist in Canada are premised on the notion that the goal of achieving reintegration in the community as a law-abiding citizen is best achieved through a process of gradual release. Detention in fact abandons that principle of gradual release for the people we've identified. Not only that, it's doing it for those who at least are presumed to be those who need gradual release the most.

This has had a number of serious implications. When we detain a person, we not only give up the opportunity to supervise and assist them; we also discourage the person from making concrete, rational plans for their release. They're sometimes unwilling to participate in any further treatment, if available, while in prison, and fear involving themselves in pre-release counselling. The possibility of public identification makes the process of planning release with one's case management officer a potentially dangerous activity.

Often the people detained are those who have been involved in special programming that is designed to link to community follow-up after release. The intervening period of detention interrupts or terminates the treatment, and the follow-up links to the community are lost.

When the National Parole Board detains a person as being likely to kill or cause serious harm before the expiration of sentence, it's not surprising that the police are particularly alarmed to find that the destination of the person is their community. Police have to take the assessment at face value. They recognize that the individual who carries such a serious label is being released without control, without supervision or expectation to participate in any treatment.

The Chairman: Mr. Stewart, could I ask you to please conclude your submission? We're beyond the allotted time now.

Mr. Graham Stewart: Okay, I will.

This is a very substantial piece of legislation. It's very hard to summarize the important points in 10 minutes.

The Chairman: I appreciate that, but we do want to leave time. There will be opportunity in the questioning to make your other points.

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): Mr. Chairman, have you told him that his submission will in fact become part of the record?

The Chairman: Yes, we have it all, but there will also be opportunity in the question-and-answer period to make further points.

Mr. Graham Stewart: I'll skip that, and could I just take a minute to say some of the points I am concerned about on other aspects of the legislation?

We have a number of recommendations with respect to the Correctional Investigator and have proposed a process through which a form of arbitration could take place for unresolved issues.

We are concerned that internal investigations within the Correctional Service of Canada be done by people with special training and are not part of the hierarchy of the system itself.

We are in favour of independent adjudication for segregation.

We feel the use of statutory release with residency has been counter-productive and should be used in much more restrictive circumstances.

Finally, we propose a system of criteria through which decision-making around gradual release would be based on a series of positive presumptions. Of those who are released today, 88% of cases take place in a decision-making forum in which the assumption is that the person will be released unless certain factors are present. That in fact makes a good model, and a more efficient system could be devised with those principles in mind. We propose at the end of our brief the specific set of criteria that we think could give shape to this model.

The Chairman: Thank you, Mr. Stewart.

Now, Ms. White, could we ask you to make your submission in approximately 10 minutes, if possible?

Ms. Elizabeth White (Executive Director, St. Leonard's Society of Canada): I'll do my best.

St. Leonard's Society of Canada welcomes the opportunity to speak to the act and thanks you for providing this opportunity for us.

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This review will give the legislature an opportunity to further improve the functioning of the act, and this act is a worthy one to be improved. It has a daily impact on the liberty and security of our clients. It provides a sound framework for the management of the criminal justice system after conviction. It establishes a context for a legal framework that is focused on individuals and looks to interventions that will result in positive change.

The principles set out in section 4 are consistent with the purpose of the act, and they should be maintained. The problems we see with the act stem generally from two sources: implementation difficulties and legislative amendments developed in response to a perceived demand from the public for more punitive responses to crime. We will look at some specific issues below.

Our recommendation with regard to this section is that the purpose and principles of the act be affirmed and that its provisions that support effective community integration be promoted.

In terms of substantive matters, I'd like to turn first to work release. The value of the provisions of section 18 lies in their use as a tool to prepare people to successfully develop a plan for conditional release. Incarceration in and of itself will not reduce recidivism by equipping a person to live successfully, so for certain prisoners, structured plans of exposure to training and work enable the growth of habits that will support successful community living. Particularly for long-term and life-sentence people and those with significant job readiness deficits, work release is beneficial.

The problem we see is with the current time limit. It is 60 days on warden's authority, with only a potential 30-day extension by order of the regional deputy commissioner. Programs have been developed and geared to even less than 60 days to accommodate weekends, transportation, and other issues. There should be a minor amendment to the act to remove the time restriction or an amendment to the regulations to allow the discretionary increase to be within the warden's mandate. That would make for more effective work release programs.

Another option that has been put forward is the development in each case of a realistic timeframe for the individual program and then getting approval from the warden if it's less than 60 days and from the deputy commissioner if it is greater than 60 days. We prefer that the responsibility rest with the warden, who has the most direct knowledge of what is appropriate for the individual and the community.

Turning to employment programs in general, the importance of employment has recently been a considerable focus of CSC's agenda in collaboration with CORCAN. As new employment initiatives are developed, it's important that the goal be sustainable skills and a realistic community setting. Voluntary sector organizations offer many grassroots employment skills training and job development opportunities to conditionally released clients. In each case these are developed to be responsive to both client and community needs.

The value of non-governmental participation in the provision of those programs can be summarized as follows: firstly, a community-based approach facilitates community integration; secondly, comprehensive client services within the voluntary sector agency ensure the criminogenic factors are addressed, regardless of whether employment itself has been identified as a contributing or non-contributing factor; thirdly, a community-based program is well suited to collaborations among various governmental entities; and lastly, community safety is enhanced by the design and provision of programs that enable individuals to return to community living qualified for and capable of finding and keeping a job. This suggests that employment during incarceration must not interfere with the need to acquire the skills and programs that facilitate early release. The institution will never replicate the community setting.

The experience of the St. Leonard's Pallet Company in Brantford is indicative of the type of success that can take place in community-based programs. Currently serving annually approximately 50 youth and adults in conflict with the law, together with 90 participants referred by other sources, the pallet company has an average placement rate of 73%. It provides an excellent, realistic preparation for future employment. We would hope that the committee would affirm the value and importance of community-based employment programming.

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Administrative segregation has been the subject of extensive review. We will confine ourselves to two brief comments in connection with it.

One, we are saddened that the CSC has not chosen to implement an external oversight or review capacity, despite recommendations to that end. At a minimum, we would hope that a pilot program would take place.

In addition, it has been noted that segregation has a disproportionate impact on women. Although a pilot study has taken place at the Edmonton institution and there is ongoing tracking, we believe a comprehensive review would provide a greater understanding of the current effect segregation has, both on women who are segregated and on those who remain in the general population.

Turning briefly to women's issues, we would simply note that the appointment of a deputy commissioner for women in 1996 and the development of programs for the new prisons for women have been two significant advances. However, we are concerned with the situation for maximum-security-level women. With appropriate staffing and facilities, they can and should be in the regional prisons. We are aware there has been much discussion on this issue for some period of time. We wish it would be dealt with finally.

We would therefore recommend that women with a maximum security level be placed in the regional prisons with appropriate programs and staffing supports. A formal advisory group on women's issues would be timely, and we would like to see the Prison for Women in Kingston finally and eternally closed.

Turning to unescorted temporary absences for specific personal development programs, subsection 116(6) releases provide an opportunity for clients to live in the community and access programs that will support their ability to achieve successful conditional release. Considerable research supports the provision of programs in the community as being the most effective setting for those programs. The current 60-day timeframe, while it is capable of renewal, is not in sync with typical program lengths. A 90-day term would be more useful.

As well, many community-based programs have difficulty running on a regular schedule, due to an insufficient pool of clients to take part. Personal development UTAs offer the opportunity to boost the numbers a bit so that community-based programs will proceed on a regular schedule. This would reduce institutional waiting lists and provide valuable programming on a more timely basis.

Our recommendation is that the time limit on unescorted temporary absences for specific personal development programs be removed and replaced by a discretionary time to be established based on program duration, or in the alternative, by a 90-day period. We would hope the committee would encourage the increased use of unescorted temporary absences for specific personal development programs.

As far as detention goes, St. Leonard's Society of Canada supports the positions enunciated by the John Howard Society of Canada. Better correctional decisions would be to work intensively with the individuals who are targeted by that legislative provision in a community setting to maximize their reintegration potential.

Looking at statutory release with residency, the introduction by Bill C-45 of the ability to impose residency requirements at the time of statutory release resulted in unwilling participants being placed in residential programs. The results were predictable and unfortunate: there was disruption to the voluntary clients in the programs and there was failure for those who were placed in that setting.

Steps have been taken. The use of statutory release with residency is being reduced, and that is a positive step. The point we wish to leave with the committee is that we are not sure it should be done away with altogether. For certain individuals with a low reintegrative potential, a period of residency can be useful. However, we would want it to be time-limited and to contain benchmarks in the original plan so that once those benchmarks are achieved, the condition of residency is removed—not a second hearing, just over and done with upon completion of the plan.

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With regard to parole, I'm just going to touch on two brief matters. As was found by Brian Grant and Marlo Gal at the research branch of CSC in their February 1998 report, overall, day parole is an effective program for assisting in reintegration, because of the recommended community programs or work in conjunction with community supervision. Those are the two factors that facilitate readjustment to community and reintegration.

There have been many media concerns and legislative changes regarding parole. Accelerated parole releases, accelerated day parole releases, as well as the CCRA have made parole, particularly day parole, the object of considerable focus and confusion over the last decade. While new releasing means have been fostered, there has not been particular growth in the public's understanding of the system. And indeed it's a very complex system to understand.

St. Leonard's takes the view that now is not the time to reduce the system's options for conditional release. We support both the continuing presumptive-type processes of APR and ADPR as well as the more traditional procedures around day parole. We would like to see all prisoners assessed for conditional release at the earliest possible date. We would also like to see an expanded use of parole to one's own residence. The essential elements are supervision and useful activity, not where you put your head at night, and there needs to be far more creative use of how parole is best implemented with individuals.

Turning straight to implementation issues, the act is premised on the need for community integration, but in practice, the role of the voluntary sector in the provision of service is often misunderstood by staff. The relationship of the not-for-profit community to the Correctional Service is complicated by the common use of contracts for the provision of direct after-care services and programs. And there is often conflict between those two parties as to the best means to provide the service. There are also differing interpretations of accountability. Ongoing discussion of these issues is essential to the best functioning of the system and of the act.

The current focus on the role of the voluntary sector, both at the Privy Council Office level as well as within this ministry, is a very positive sign of awareness of the importance of the sector and the value inherent in maintaining and creating good relationships within it. But when talking about the voluntary sector, it's important to acknowledge the very real difficulties of having an equal relationship with a body such as CSC, which is so large and holds the legislative mandate over most direct service provision.

Community-based residential facilities have faced years of inadequate resourcing and last-minute agreements. The result has been the loss of some houses. It is notoriously difficult to gain municipal approval to open any transitional houses, and yet we are now at a time when those additional resources are clearly needed. It will take very proactive collaboration between CSC and the voluntary sector for this to occur. The solution to the difficulties does not lie in utilizing large government facilities as a substitute for community-based reintegration residences.

The mandates of the Correctional Service and the parole board are most successfully fulfilled in collaboration with the community. When that relationship works well, understanding grows in the public and recidivism is reduced. Recent research clearly indicates that although the public may think that what it wants is harsh punishment, when given facts about what works and about the cost to human life and to the exchequer, and when the accused becomes an individual, not a faceless monster, then the public wants less reliance on incarceration and more on rehabilitative interventions.

This review is an occasion to encourage increased emphasis on community education and information-sharing, and it's an opportunity for the government to work more closely and openly with all members of the community, in particular those who are interested, involved, and willing to serve.

We know there are no risk-free methods in corrections, but we've made good progress in identifying best practices, and the CCRA continues to provide a sound basis for us to do effective sentence management.

Thank you.

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The Chairman: Thank you, Ms. White.

Now, for the benefit of the committee members, Ms. Pate has informed the chair that she hasn't prepared a brief yet, but one will be forthcoming, and as in the case of the others, will form part of the record.

Approximately 10 minutes, then?

Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): Yes, thank you very much.

I want to thank the subcommittee, on behalf of our organization, for inviting us to appear. I also want to extend an apology from two board members. Two volunteer board members were hoping to attend, but their employment commitments required that they return early back to Montreal and Saskatoon respectively. I apologize. I am theoretically on maternity leave, so I'm pinch-hitting at this point. Thank you very much for inviting us.

I'd like to run through the recommendations we're making, and then during question period I hope we'll have an opportunity to further elucidate some of the issue areas.

The Canadian Association of Elizabeth Fry Societies has obviously had an interest in this area for some time. Some specific areas and issues underlie our submissions, as you'll see when our brief is submitted. In particular will be of course the act and the history of the act, but also the history of women's corrections in this country, particularly dating from the report of the task force on federally sentenced women and the Arbour commission report. Framing many of the issues will be the findings of both of those documents.

One of our first recommendations is that we would like to see section 11 of the Corrections and Conditional Release Act amended so as to prohibit the incarceration of women in federal penitentiaries for men. As my colleague, Ms. White from the St. Leonard's Society, has indicated, one of the concerns we have at this point is that women are currently confined in men's prisons in isolated conditions that are tantamount to administrative segregation. We have some recommendations pertaining to that issue as well. We want to alert the subcommittee to the fact that this is an issue that has not only been litigated but has been commented on by Madam Justice Arbour as well.

In the situation following the incidents at the Prison for Women in April 1994, six women were transferred to the Kingston Penitentiary for men, to the precise unit that they were intended to be transferred to again in 1997. At that time a court action yielded a result in which the court held that the confinement of women in men's prisons would require legislative amendment in order to occur.

So in order to ensure that this does not continue and to ensure that once it is stopped, it is not revisited, we would like to see that legislative amendment in section 11 and would discourage this subcommittee from in any way entertaining an amendment that would allow women to be incarcerated in men's penitentiaries.

Right now the court has held, and Madame Justice Arbour has concurred with that holding, that in fact it is illegal under the current legislative regime. But to make it very crystal-clear, we'd like to see it specifically outlined in section 11.

Also, as you are visiting, we hope you will have an opportunity to visit some of the segregated maximum security units for women. They are in, from west to east, the Saskatchewan Penitentiary in Prince Albert, the Regional Psychiatric Centre in Saskatoon, Ste-Anne-des-Plaines in Quebec, and Springhill Institution in Nova Scotia.

In the B.C. and Ontario regions, women are not in men's penitentiaries because of an exchange of services agreement in B.C. and because of a court action that was launched whereby at the point that the Correctional Service of Canada lost motions before the Ontario Court of Appeal, they determined that they would abandon court action, and women were left at the Prison for Women.

We would also like to see the Prison for Women closed, and our view is that all maximum security women prisoners or women currently designated as maximum security should be in the regional prisons, according to the plan that was articulated by the Correctional Service of Canada and accepted by the Solicitor General in 1990, that was in the task force on federally sentenced women, and that was re-articulated and reconfirmed by the Correction Service of Canada before the Arbour commission in 1995.

We would also like to see that in future there be an amendment to section 16, which governs the exchange of services agreements between provinces, whereby provincial authorities may be contracted to provide services for federal prisoners. The confinement of federally sentenced women in provincial jails should only occur in a situation where there is a choice of being confined in either a provincial institution or a federal.

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That is the condition that preceded the building of the regional prisons for women and the exchange of services agreement in the Pacific region, whereby federally sentenced women currently have no choice but to be incarcerated in a provincial jail. That means therefore they are kept in the Burnaby Correctional Centre for Women.

Again, if you have an opportunity to visit, I think it would be useful, in addition to visiting the federal institutions, to see the situation for women. They're held in a prison that was built on a remand centre model and do not enjoy the benefit of or entitlements to the rights that federally sentenced women are entitled to anywhere else in the country. Therefore we clearly are seeing a violation, from our perspective, of charter rights as well. Currently two legal challenges have been undertaken by women prisoners.

So we would like to see section 16 amended to specify that in fact placement should be voluntary.

In terms of the security classification provisions, section 30 of the Corrections and Conditional Release Act specifies that prisoners incarcerated in federal penitentiaries must be assigned a security classification, even though it has been long recognized by the Correctional Service of Canada that the current security classification regime has flaws and certainly is discriminatory when applied to women and aboriginal prisoners. This is evidenced by the fact that although aboriginal women compose 18.7% of the total population of federally sentenced women, they are 50% of those women who are classified as maximum security.

We have another paper, which I will happily provide to the committee as an appendix to our brief, on the specific issue of classification in carceral placement of women. It elucidates this issue more directly in terms of some of the discriminatory aspects of the current classification scheme for women and aboriginal prisoners.

Hence we are of the view that, because of this discriminatory application of section 30 that currently exists, it would be appropriate to amend the act to provide an exclusionary clause when it comes to women and aboriginal prisoners.

We would also like to see in section 31 of the Corrections and Conditional Release Act, which is the provision that applies to administrative segregation, a clearer definition of what administrative segregation should mean. By implication, one could deduce that in fact it means there are degrees of restriction and conditions of confinement similar to those imposed for punitive segregation. However, it is not clearly articulated in terms of what the degree of restriction and conditions of confinement should be.

Those provisions need to be clarified, because the unfortunate consequence is that we therefore don't have a good means, a statutory means, to review those conditions of confinement, and as a result to hold accountable the Correctional Service of Canada when there are situations where we perceive abuses of those conditions of confinement.

For instance, currently at the Saskatchewan Penitentiary in the isolated unit, where women are held, at any one time... At my last visit, 12 women were being kept in the separate unit. Not only were they in a separate, isolated unit, but they were further isolated on five different living ranges. So at any one time we have women kept in groups of two, three, or four, and one woman has been kept in isolation virtually since she arrived at the Saskatchewan Penitentiary.

Those women, though, are not considered in administrative segregation by the Correctional Service of Canada. Yet their existence and the degree of separation, not only from the general prison population but from each other, certainly would fit within the definition of segregation, or within our implicit definition of what administrative segregation must be, if you read it in conjunction with the fact that anything that is not general population is therefore administrative segregation. Yet they're not defined as such, so there are no protections for them when they are complaining of lack of access to programs, services, association, recreation, and the like.

We would encourage you to look at some definition within that, and that definition should be included in the Corrections and Conditional Release Act.

Also, although sections 33 and 34 of the CCRA provide a statutory mechanism to monitor the involuntary segregation of prisoners in administrative segregation, the experience has been that this mechanism has been completely inadequate to ensure compliance by the Correctional Service of Canada with the statutory criteria for placing prisoners in administrative segregation.

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This conclusion actually was also supported by Madam Justice Arbour. In fact, as a result of the evidence she heard, principally from employees of the Correctional Service of Canada, during the commission of inquiry, she indicated that some clear external guidelines and external forces needed to be brought to bear to ensure there could be independent decision-making.

Her recommendations are principally at page 198 of her report, and if the subcommittee does not have easy access to her report, we'd be happy to facilitate that as well. We believe her recommendations in particular would be instructive to the committee.

The Chairman: We do have that.

Ms. Kim Pate: In response to Madam Justice Arbour's recommendations, the Correctional Service of Canada set up a segregation review task force to look at what happens in the Correctional Service of Canada. On that task force, all of the members were Correctional Service of Canada employees save three.

After they reviewed the situation of segregation across the country, all of them recommended that there needed to be independent adjudication, independent decision-making, on the issues of segregation. They also recommended that a separate review be done of federally sentenced women, because although obviously the Arbour commission issues arose out of situations at the Prison for Women, the task force did not itself address the issue of federally sentenced women. So they recommended that be done, and I've again encouraged the subcommittee to make recommendations about that.

Madam Justice Arbour had recommended that the judiciary be the reviewing body in situations where individuals were segregated in excess of 30 continuous days or in excess of 60 aggregate days in a year. Our recommendation is that the CCRA should be amended to include that form of judicial review, particularly given the results of the segregation review task force, the lack of follow-up by the Commissioner of Corrections, and the reality that the decision has been taken that there is not a need for independent review of segregation decisions.

In addition, it was recommended that there be independent adjudication in the form of perhaps an external lawyer looking at decisions to impose segregation at the five-day review mark. It's an essential feature of both of these models that there be independence, both in the eyes of those monitoring what happens with the Correctional Service of Canada and also for the community to be aware that the Correctional Service of Canada is having some independent monitoring of their activities.

So we would recommend that sections 33 and 34 be amended to provide for either of the two segregation review models that Madam Justice Arbour recommended.

Revisiting the point I made earlier, section 37 provides for situations where prisoners can be placed in administrative segregation. One of the key reasons that people are placed in administrative segregation at this point is for issues that are determined to be security requirements. We would recommend that that provision be deleted from the section, because there's clearly at this point no articulable standard against which the restriction of prisoners' entitlements can be measured, as the current “security requirements” phrase is not defined and is too vague.

Alternatively, it may be that you want to try to ascribe a definition, but if you look at the range of issues that are covered, you'll find it's very broad. What are considered security requirements can cover everything from a concern that someone may be swearing at an officer to some fairly major, fairly obvious security requirements, including breaches of the prison and that sort of thing.

The Chairman: Could you conclude, please, Ms. Pate?

Ms. Kim Pate: This is our last series of recommendations.

Section 77 of the CCRA indicates clearly that there should be regular consultation with women's groups and other appropriate persons regarding issues affecting federally sentenced women. There are similar provisions under section 80 for aboriginal prisoners.

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One of the recommendations our organization has is that paragraph 77(b) be repealed and replaced by a new paragraph 77(b) that would establish a national women's advisory committee. This would be consistent with section 82 of the CCRA, which establishes a national aboriginal advisory committee.

It's our further recommendation that, as the task force on federally sentenced women was co-chaired by my predecessor and the Correctional Service of Canada, this should be co-chaired by the Correctional Service of Canada and CAEFS or by CAEFS alone. However, presumably if it's an advisory body, it would be preferable if it were external.

We also recommend that there be an amendment to the act to include the ability to provide similar provisions to those currently included in sections 81 and 84 of the act for aboriginal prisoners, basically allowing for the Correctional Service of Canada to transfer aboriginal prisoners to the care and custody of aboriginal communities. Similar entitlements need to be enacted to provide for appropriate community release options for federally sentenced women. So perhaps a provision could be enacted that would allow women to serve their sentences in a facility or with an organization that provides services to women, such as a drug treatment facility or a treatment home.

I'm certain some of the committee members are aware, but others may not be, that currently in this country, in only three provinces—the prairie region—are there women-only halfway houses. In the seven other provinces and the two territories, and in the third territory that will come into existence in another month and a half or so, there are no women-only services. So we're encouraging that kind of recommendation.

Finally, with respect to federally sentenced women with mental health needs, section 87 should be amended to prohibit the application of that provision in any way that disadvantages prisoners with mental disabilities. The committee should be aware that in fact the majority of women with significant mental health issues and capacity issues are currently classified as higher-risk women and are being placed either in the Prison for Women in Kingston or in two of the maximum security units for men. Clearly that violates their section 15 requirements as well.

We're also recommending that the Correctional Investigator report directly to Parliament and that there be an amendment to subsection 179(3) so that the Commissioner of Corrections and the chairperson of the National Parole Board would be bound to act on any finding or recommendation of the Correctional Investigator with respect to a breach of law. Currently, as we know, they just have to act with recommendations.

Our final submission is in reference to Madam Justice Arbour's recommendation concerning prisoners whose sentences have been illegally or unfairly interfered with as a result of the conditions of confinement they experience. We recommend that a new provision of the act be created to deal with the situation in which the Correctional Service of Canada's interference with the integrity of sentence interferes with what the judge's intention was in sentencing, in terms of both duration and the conditions of confinement. A new provision should be enacted that entitles a prisoner in such circumstances to apply to the court for reduction of a fixed-term sentence, or if the sentence has a mandatory minimum, a declaration that the sentence was illegally or unfairly administered.

Those are our submissions. Thank you. I apologize for going over time.

The Chairman: Thank you.

We'll have to go to perhaps seven-minute rounds. Again, if the questions and answers can be as concise as possible, we'll cover more ground.

Mr. Gouk, seven minutes.

Mr. Jim Gouk: Thank you.

I do believe you're all looking to try to make the system work better, and that's laudable. But if there's going to be an error, if we're going to err on one side or the other, particularly in the case of violent offenders, then frankly I can say without any hesitation that I would rather err on the side of public safety than on the side of the violent offender when it comes down to that kind of choice.

We need some differentiation. I get the impression that you're saying we should be unlimited in the manner in which we release people to work release, temporary absences, conditional release, and finally statutory release. We have to differentiate between somebody who's, let's say, a break-and-enter convict versus a rapist or a murderer.

• 1625

If you let out somebody who's been convicted of breaking and entering and they repeat their offence, the consequence of error is much lower than if you let out a rapist or a murderer and they repeat their offence. So we have to err on the side of public safety.

I would ask one thing of Mr. Stewart in particular. You've talked about the need for a positive approach as opposed to a negative one. I would suggest those are two sides of the same coin. You say we have to let them go unless we can prove they have a problem, as opposed to the approach where we don't let them go unless they can prove to us that they don't. We're really talking about something very similar.

Suppose I say, “I have a real problem with you getting out, because you're a sexual offender and you haven't taken a lot of treatments or programs that might have been helpful to you, so I think you're not even serious about getting out. You have to prove to me there's some reason I should let you out.” Or suppose I say, “Wait a minute. You have a real problem. I already have that, unless you care to try to dispel me of my position.” Aren't we really talking about the same thing, when we come down to that?

Mr. Graham Stewart: Let me first answer your question about the risk with respect to decisions of release.

Sometimes we're inclined to think we can only take one kind of risk, and that's to release. But doing nothing is also a risk. The whole point of corrections—and it's articulated in the act, and it certainly is consistent with the way we feel—is that the sentence is a window of opportunity. It's an opportunity to change the behaviour over the long term.

It's only with long-term changes in behaviour that public safety can be achieved. Otherwise we're really trading off the potential long-term benefits for a very short-term benefit, while incarceration takes place. When the evidence suggests that gradual release is the best way to reduce risk, then when we forgo gradual release in order to lengthen the sentence, it's our view that in fact we're increasing the real risk to the community.

One of the problems, however, is that because of this view that the risk only takes place during the sentence, decision-makers can be quite intimidated by the decision-making process, because the criticism is in fact only when a person reoffends during the sentence, not after.

Because of that, the nature of the decision-making process now, particularly in relation to parole, which is a negative presumption in that the person will not get out unless he can make his case, is that all the pressure is in the one direction. What happens is decision-makers can very quickly go from risk reduction strategies to risk avoidance strategies.

There's a very substantial, very hostile public criticism when things go wrong, and that's, to some extent, understandable. We're suggesting that in a situation in which there's a negative presumption of release, the risk in terms of decision-making is placed entirely on the shoulders of the decision-maker, as opposed to on the legislation itself.

In our view, when the legislation establishes—and with good reason—that gradual release is the best long-term protection, a negative system decision would give some insulation to the decision-makers. The basis of the decision-making would increase and the burden would change throughout the sentence, but the principle of a negative presumption would simply give some protection to those who are making decisions.

Mr. Jim Gouk: One thing Ms. White talked about is conditional parole and getting that as soon as possible. She said if a person is working hard, is cooperating, and all the things are positive, timelines be damned, almost; they should be moving towards parole and reintegration in society as quickly as possible, commensurate with their cooperation with the program.

Wouldn't that leave open, then, the ultimate timeline potential that someone who's sentenced for the type of crime they committed—and it might be 10 years—could get out in an extremely short period of time if they were repentant and said, “I'm full of remorse for what I did, and I'm going to work hard to show I would never do that again”? They might be out in a year or a year and a half. Is that conceivably possible under your ideals?

Ms. Elizabeth White: I wasn't actually recommending changing the timeframes within the act for conditional release applications. I was suggesting that it's incumbent upon us to meet the earliest possible release dates under the act.

• 1630

At the present time, far too many people sit past their day parole eligibility date and past their full parole eligibility date because paperwork is not done or because programs haven't been completed in the institution due to waiting lists for those programs.

To the second point, it probably wouldn't bother me a great deal if someone with a 10-year sentence were out in the community, under supervision, taking programs that they will then be practising in a community setting—which is where they're going to be at warrant expiry date—in the most effective way possible, after a very short period of time.

Mr. Jim Gouk: One of the concerns I have is societal perception, and it's important that we don't ignore that.

We have, for example, right now a person convicted of a very brutal murder living in a prison situation that is far better than a lot of hard-working, honest citizens live in. We have other people who are underemployed and would love nothing better than to have the time and the money to take courses that would help them upgrade themselves. They are unable to do that, while we fund people who have broken the laws, who have broken the rules.

How do we come into perspective with this? By being humane, by promoting training programs, courses, and all types of things, we actually end up treating people who have broken the law better than people who have not.

Ms. Elizabeth White: I would say to you that two wrongs don't make a right. I would say the fact that the social safety net in this country has been seriously eroded over the last 15 years is not a good thing. It does not mean to me that we should therefore compound the error by taking those who are at great vulnerability within our system, being those prisoners, and denying them the opportunity to take advantage of what we know works to avoid future crime.

All of us have the same goal: we don't want recidivism.

Mr. Jim Gouk: Is there any value to punitive measures from—

The Chairman: Mr. Gouk, I'm going to have to interrupt you there. Your time has elapsed.

[Translation]

Mr. Marceau for seven minutes.

Mr. Richard Marceau (Charlesbourg, BQ): First of all, I would like to thank our witnesses for coming here today and giving us their presentations. I hope to get your text soon Ms. Pate. I will read it carefully.

I have a small request for Mr. Stewart. I received the French version of your document. Unfortunately, your charts have been reproduced but without the graphs. As I am a very visual person, I would appreciate you sending them to me if possible.

[English]

Mr. Graham Stewart: I just realized this morning that those charts were missing, and I gave copies to the clerk this morning.

Mr. Richard Marceau: Okay.

Mr. Graham Stewart: They're available now.

[Translation]

Mr. Richard Marceau: Right. Thank you very much. I will look at them later.

It is always interesting for me to have the floor after my colleagues from the Reform Party. There is quite a philosophical difference between you and them. On the other hand, there is one thing I think the Reform Party might be slightly right about. The fact is that there is a perception of reality which is not necessarily accurate, but does exist. Your groups are everywhere in Canada if I understood well. I would like to know if those differences in perception vary from one region to another. If so, what could we do with the legislation to take into account those differences in perception or those philosophical differences? Would it be possible through parole? It is evident that we are trying to advance rehabilitation, etc. Would it not be easier to do if we took into account the level of acceptance of rehabilitation in different regions?

[English]

Ms. Elizabeth White: To go straight to your first point, I prefer that the legislation remain national in scope. I would hope that in our public information campaigns and our improved emphasis on community engagement and community participation, we would raise those regions that are at a lesser level of understanding to the level of the one region that seems to demonstrate a fairly clear understanding of the benefits of reintegration programs.

• 1635

[Translation]

Mr. Richard Marceau: YouÂre talking about...

[English]

Ms. Elizabeth White: Of course.

[Translation]

Of course.

Mr. Richard Marceau: I can understand that we might want national legislation but would it not be possible to say that some conditions or some local concerns have to be reflected in that legislation?

[English]

Mr. Graham Stewart: Maybe I'll take a stab at this.

First of all, you're quite right that public perceptions and attitudes do vary across the country. A number of themes are reflected in public attitudes, and those are also reflected in actual practices in some respects. The use of detention, for instance, varies considerably across the country. In some provinces it's not used at all, such as Quebec. In other provinces it's used quite frequently. That is not because of variations in the legislation. That is reflective of the values and attitudes of people in those parts of the country.

So within the scope of the legislation, because there's considerable decision-making scope for those who have that responsibility, you do see in some cases some very substantial variations.

[Translation]

Mr. Richard Marceau: Thank you. It might be interesting, Mr. Chairman, to have those regional variations. In any event, I would be very curious to see them.

The Chairman: We will ask our research staff if they can find anything.

Mr. Richard Marceau: Yes. I am sorry to give you extra work. They like work? Very well, we will give them some.

Ms. Pate, you alluded several times in your presentation to the Arbour report, which was published in 1996. I would like to know if there are parts of that report that you do not agree with.

[English]

Ms. Kim Pate: We agree with the recommendations of Madam Justice Arbour and did in fact encourage that they be adopted in their entirety by the Correctional Service of Canada. We have made submissions that there are portions we would certainly have strengthened, but in total, no, we aren't in disagreement with any sections.

[Translation]

Mr. Richard Marceau: Thank you. Maybe I misunderstood you earlier, Ms. Pate, when you said that women who should normally find themselves in a federal institution ended up in a provincial institution or something to that effect. What difference does it make for a woman to be in a provincial institution as opposed to a federal institution? What difference does it really make?

[English]

Ms. Kim Pate: Basically the difference is the protections that are available and the rights. If it's a federally sentenced woman, she has protections in terms of access to services, access to programs, access to passes into the community, community release options often, as well as access to the Correctional Investigator or grievance mechanism, those sorts of things.

The reference I was making in particular was to the situation for the women who are in the Pacific region in British Columbia, because of an exchange of services agreement that was entered into in 1990, which is up for review again in April 2000. That exchange of services agreement provides that every federally sentenced woman will be housed in the provincial jail, the Burnaby Correctional Centre for Women, and therefore subject to provincial authorities.

Those women then don't have the same access to protections when they're placed in segregation, even with the issues we've raised around segregation under the CCRA. They don't have those protections. They don't have access to the Correctional Investigator; they don't have access to the same programs or services.

They themselves have complained, and as I mentioned, there are two lawsuits currently.

[Translation]

Mr. Richard Marceau: Unfortunately or fortunately, an effort at expenditure restraint was made by all governments in Canada. Don't you think that the solution might be to make sure that the services normally provided in a federal institution are also provided in a provincial institution? We could enter into administrative agreements which would save money not only to the provinces but also to the federal government. Isn't that a solution that we could explore?

• 1640

[English]

The Chairman: Could we have a very brief answer, please, Ms. Pate? The time is up.

Ms. Kim Pate: Okay.

That's a potential problem, but that's why that's a potential solution, I suppose, as well, because the conditions in provincial institutions are often more substandard than the conditions in federal institutions. However, the recommendation we're making is that women have a choice—and men, for that matter, as well.

Where there are exchange of services agreements, generally there has been a choice historically. For instance, the other big exchange of service agreement that predates the one in Burnaby for women was the exchange of services agreement in Quebec, whereby women could stay at Maison Tanguay and have access to francophone services, and there was an agreement. However, they could also choose to go to the Prison for Women.

At this point, in the Pacific region there is no choice. Some women still might choose to stay, but there's no choice to go to a federal institution at this point.

The Chairman: Thank you.

Mr. Wappel for seven minutes.

Mr. Tom Wappel (Scarborough Southwest, Lib.): Thank you, Mr. Chairman.

I'd like to thank the witnesses for coming and for giving specific recommendations. That's always helpful.

I'd like to start with Mr. Stewart.

One of the reasons we're on this committee is to get some feel for how the act has worked in practice as opposed to theory. You made a comment, Mr. Stewart, just about six years ago to the day, which I admit was crystal-balling, but I'd like to recall it for you and ask you if you still think it's accurate. You said of the bill:

We do not feel that it will in fact significantly detain violent offenders any longer than currently, nor do we think it will expedite the release of non-violent offenders. It in fact could conceivably have the very opposite effect in both cases.

With the benefit of six years, do you still agree with that prediction? With the operation of the CCRA for the period of time we've had it, has what I just read to you in fact been your experience?

Mr. Graham Stewart: I'm having some trouble recalling the context, but it seems to me that was referring to a number of provisions of the CCRA.

Mr. Tom Wappel: Let me ask it this way. In your experience, are more violent offenders being kept in prisons now than before?

Mr. Graham Stewart: There are more violent prisoners in prison today, because the periods they're serving are being extended, so they're pooling there, as one would expect. So, for instance, the lifer population has been increasing continuously ever since the long periods of parole ineligibility were brought into place. Similarly, sentencing provisions and some practices around sex offenders have resulted in a large number of these people. So as a proportion of the prison population, more people are coming into the institutions.

In terms of the mechanisms, initially introduced with the CCRA, to expedite the release of non-violent offenders, there's little evidence that they've had a substantial impact, with the possible exception of the accelerated parole review, which has had some impact at that end.

Mr. Tom Wappel: Very good, thank you.

In what I think is your first paper, “Review of the Detention Provisions of the CCRA”, on page 1 in the executive summary, paragraph 3, you make the following statement, which I would like to contrast with a statement made by the St. Leonard's Society on page 11 of their brief, under the heading “Detention”. I'll read both sentences. Perhaps there's no difference, but I'd like both of you to explain to me why I see a difference, if you can.

You say:

Research studies have shown that those who are detained are not more likely to re-offend than those not detained.

The St. Leonard's Society says:

Data show that detainees recidivate at a lower rate than individuals on statutory release.

• 1645

Those two sentences don't sound to me to be saying the same thing. What do you say?

Mr. Graham Stewart: My understanding is they say the same thing. What they're saying is that those who have been detained have a lower recidivism rate than those who are not detained.

Mr. Tom Wappel: Don't you find that curious?

Mr. Graham Stewart: Yes, I find that bizarre.

Mr. Tom Wappel: What's your explanation?

Mr. Graham Stewart: Well, for all our pessimism about this legislation, we never imagined that the results could be so startlingly reversed from what one would expect. The only explanation I have heard or understood or believed to be the case is that those who are being detained are in fact not the dangerous people.

No one would say there are no dangerous people in institutions, but they're not being selected through this process. Who is being selected are the particularly unpopular, if I can use that term, and they are primarily sex offenders. There's a general belief that all sex offenders have a high recidivism rate, when that's not in fact the case. There are some, of course, who do.

What would amount, in my view, to posturing for public myths has resulted in a large group of people being detained who, as a group, actually have a low recidivism rate. As a result of that, the few who are particularly dangerous are lost in a group, many of whom are not likely to recidivate, and we now have this phenomenon of the group that's being on the whole identified as particularly dangerous doing better than the group that was seen as less dangerous.

Mr. Tom Wappel: And there's no possibility that that might in some way be because they in fact have stayed in prison longer and been able to take programs longer?

Mr. Graham Stewart: I don't believe that's the case. By the nature of the whole selection process, these are people who are seen as unresponsive to treatment, unless we think they're just another—

Mr. Tom Wappel: I thought it was because they were a potential danger to society.

Mr. Graham Stewart: Yes, and that's partly based on the notion—

Mr. Tom Wappel: Isn't that what you said—that's what's supposed to be looked at; you're supposed to see if there's a serious harm?

Mr. Graham Stewart: The criterion is if they've done serious harm, but also—

Mr. Tom Wappel: Or they may do serious harm if they are released early. That's the criterion, right?

Mr. Graham Stewart: Yes.

Mr. Tom Wappel: Well, that's not what you said.

Mr. Graham Stewart: Well, part of that is based on whether they've participated in and been responsive to treatment.

Mr. Tom Wappel: Yes.

Mr. Graham Stewart: Now I'm getting lost. I'm not sure—

Mr. Tom Wappel: I asked you, is it not possible that the people who are serving longer sentences... Is it not a possible explanation that one of the reasons there's less recidivism for those detained is that they're in prison longer and have an opportunity to continue to take whatever programs are offered? Is that not a possibility, in your mind?

Mr. Graham Stewart: No.

Mr. Tom Wappel: Okay. Well, that's an answer.

The Chairman: Ms. Pate wanted to answer that question.

Ms. Kim Pate: It may be of interest to you to know that we've also utilized the two detention studies that both of my colleagues have referred to in order to look at the entire classification scheme that's used by the Correctional Service of Canada at this point.

Certainly for women who have been detained, it's precisely as my colleagues have said: we see some clear indications that it's those who are unpopular who may resist treatment and who may resist the advances in general of the Correctional Service of Canada towards complying with their authority. They do this in ways that may then allow them to thrive in the community, but they certainly are ways that they challenge authority and particularly abuses of power.

In a couple of the cases I'm thinking of, they have challenged, for instance, their segregation and a number of things. They've become unpopular prisoners and they've been disproportionately detained, as opposed to some others. Some employees of the Correctional Service of Canada have not understood the scheme they're using themselves and have then tried to use enticements such as release options for them to go out into the community, when clearly that's not available to a detainee.

So I would encourage you to look at that in conjunction with the issues around classification.

Mr. Tom Wappel: Right. We'll be sure to ask those questions, too, when they come before us.

The Chairman: Thank you.

We'll go to a second round now.

Three minutes, Mr. Gouk.

Mr. Jim Gouk: I just have two questions, both, I hope, fairly short.

The first is on work experience versus discipline. Learning work skills and so on is very important. I have a business where we're not talking about high-technical skills, but we train people, and yet a lot of these people don't show up the day after payday, or maybe a couple of days after payday. They show up late or they just get tired of working and they quit.

• 1650

What about some form of discipline in terms of what I guess you could call life skills? Does that have a role, as well as work experience and work release, to learn some personal discipline as well? Is that an important part of rehabilitation in your mind?

Ms. Elizabeth White: Absolutely. Employment readiness programs are being quite widely used now across the country, primarily offered by community-based agencies, whereby individuals who have poor work skills go through all those processes and acquire some of those habits. However, a program such as that, in and of itself, will not have any lasting impact if it's not combined with a relevant work experience.

Mr. Jim Gouk: Do you think that needs to needs to be an exact... Actually, I'm going to leave that one, because I have one other question I want to deal with. If there's time for the other, we can come back to it.

I know you probably hate the dangerous offender designation. When we're talking about dangerous offenders, we're talking about bodily harm against another, whether it be murder, assault, sexual assault, or whatever—though certainly not the first time, because you would hope at some point they're released and they are rehabilitated. If they reoffend with the same nature of crime, would you look at the concept of a dangerous offender designation for the second time, and if not then, when?

Mr. Graham Stewart: We have the dangerous offender legislation in place now, which sets a very broad set of criteria. A person doesn't even have to be a second offender to be declared a dangerous offender under the current legislation in Canada. It's very broad. Not only that; we have mental health provisions as well. So within the current context of the legislative framework, it would be very difficult to find a way to actually broaden those criteria.

Mr. Jim Gouk: I'm not saying we should broaden them. I'm just asking, is there a place for the protection of society at second offence or subsequent offence? At what point do we take a violent offender or a sexual predator and say, “You're a dangerous offender; you're not getting out, for the protection of society”? Or is there any place for such a designation?

Mr. Graham Stewart: There is. By its nature, we want to be very careful, because the fact is that every time we develop a system that detains people on the basis of predictions, we're consistently wrong. The error rate in this is very high, so if we have any concern at all about using the authority of the state—

Mr. Jim Gouk: But isn't a second or subsequent offence more than a prediction?

Mr. Graham Stewart: Well, as I was saying, the current legislation doesn't even require that. It generally does, but we have a court process, with psychiatric evidence and careful review, in which this kind of decision is made, and that's the best way to do it.

I wouldn't be in favour of arbitrary rules, because the behaviours that you can describe as a sexual offence or even a violent offence have a huge range of actual implications, and the impact can have enormous variation. In that kind of process, you can capture all sorts of people who weren't intended. For instance, the “three strikes” law in California, as we know, has in fact resulted in 80% of those who are detained essentially for life being non-violent offenders.

So we have to be very careful of attempts to arbitrarily define categories, but in terms of the scope, the law we have today is very broad.

The Chairman: Thank you.

Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): Thank you, Mr. Chairman.

One thing is troubling me. We're talking about conditional release and statutory release, and then we're comparing figures on recidivism. I have a problem with that, because conditional release is on a leash, agreed? In statutory release, they push you out the door, say you're on your own, and slam the door behind you.

Mr. Graham Stewart: No.

Mr. Kim Pate: They're on a leash too.

Mr. Graham Stewart: In terms of supervision, statutory release and parole are generally fairly similar. In both cases you're still completing your sentence under supervision in the community. The degree of supervision is determined in part by the supervisor's assessment of the risk you present.

It's the detainees who are released with nothing. Those who are detained at the very end of their sentence are then released—

Mr. Ivan Grose: I was confused with the two words.

Mr. Graham Stewart: —because the sentence is completed, and no supervision, control, or assistance is available.

Mr. Ivan Grose: Okay, fine. You've straightened that out for me, although I still think statutory release is when you have served a certain amount of your sentence and you must be released unless you've done something horrendous in prison or whatever. Conditional release is when you've come up for parole or a parole date and you've impressed the parole board and you get out with conditions.

• 1655

Mr. Gouk mentioned something that always bothers me. He mentioned a sex offender and a break-and-enter offender in the same breath. I have a theory that these two should be separated, that one is a sociological offender and the other is someone with a mental problem. To put them both in the same bucket I don't think avails us of anything.

I'm surprised also when you say sexual offenders can be rehabilitated. That's the first time I've ever heard that, and it bothered me. My impression is that we give sexual offenders life imprisonment on the instalment plan and feed them victims in the short bits that they're out. With all I've read on that, that's the way it seems to be.

Mr. Graham Stewart: I have two points on that. There is a difference between those whose offences are property crime offences and those where there's a psychological problem. I think few would refute that.

In fact if you look at the offences committed by those who are detained, what you'll find is that practically no property offences are committed. The violent offence rate isn't higher than the other group, but the property offences are much, much lower. So it does suggest that, you're quite right, and therefore the approach is different.

In terms of treatment, a considerable body of treatment by the Correctional Service of Canada has shown you can reduce the reoffending rate of sexual offenders substantially. And it certainly is in our best interest to do that whenever we can. The problem is that sex offending is a very broad category, again, which describes a whole range of behaviours. Within those groups there's a huge variation in the likelihood of recidivating.

When we talk about sexual offenders, we tend to think primarily of homosexual pedophiles, which we know have a fairly high rate, but there are all sorts of other groups that have a very low rate of recidivism. For instance, incest has a very low rate of recidivism.

All I can say is that the problem is that the category, sex offender, includes such a range of behaviour and we tend to focus on the extreme end. So in fact there is a very strongly held public perception that all sex offenders are high recidivists, but it simply is not the case. The data from the Correctional Service of Canada as well as the research on their treatment programs have been quite consistent over the years.

Mr. Ivan Grose: Thank you. I stand corrected. That's what I came here for.

The Chairman: Thank you, Mr. Stewart.

Mr. Jim Gouk: I have a point of order. Mr. Chairman, just for the sake of the record, because this is recorded and ultimately will be transcripted, so there's no misunderstanding, Mr. Grose may have misunderstood what I said. If someone reads the transcript at a broken part, I'd like to clarify that I was not lumping B and E and murders and sexual offenders together but in fact suggesting that we do have to differentiate because of consequence of error.

The Chairman: Thank you, Mr. Gouk.

[Translation]

Mr. Marceau, please.

Mr. Richard Marceau: No, that's fine.

The Chairman: Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): First of all, I don't know if I heard right but is it true that you had a baby two weeks ago?

[English]

Ms. Kim Pate: Yes.

Mr. Jacques Saada: I think we should congratulate this new mother.

Some hon. members: Hear, hear!

Ms. Kim Pate: Thank you.

Mr. Jacques Saada: While we have a general trend towards individualization of the programs in the ways we deal with each inmate, we are caught with the dilemma of organized crime. We tend to put everybody under the same umbrella as soon as they are identified as belonging to organized crime.

With all you said this afternoon—and intuitively I feel I can connect to most of what you said—do you still think it would be valid for cases of people who are in institutions because they are associated with organized crime, over and above having committed a crime? Would you have the same reasoning for people who would belong to this category of crimes?

Mr. Graham Stewart: If you believe in rehabilitation, it's always individual rehabilitation. You can't rehabilitate a class of people. But the risks and difficulties that a person presents are very much tied to the social circumstances they're involved in and live in, and if that involves organized crime, then there obviously are serious problems.

One of the reasons we are in favour of gradual release is that it addresses certain risk factors that have to do with the social situation. The prediction of risk in terms of parole decision-making is based primarily on the person's psychological makeup, attitudes, and values. But the factors in their community life are at least as important in terms of contributing to future criminal activities.

• 1700

So, for instance, if a person has a drinking problem and is living in an alcoholic environment, his risk goes up. If you can change his environment, that helps. Similarly, with a person who has associates, for instance, or is involved in activity, reintegration in a supervised setting can be most effective for these people, because you then have a period of time in the community to ensure they establish a different way of life. If they don't, then that's grounds for suspension and revocation.

Mr. Jacques Saada: The reason I'm bringing up this question is that Ms. White answered the question a moment ago by saying you're not asking for any change to the times in which you have eligibility for parole. One of the issues before us has to do with the one-sixth automatic release.

Many witnesses and many people, I'm sure, in your neighbourhoods and so on—you can discuss it too—believe there shouldn't be this one-sixth APR for people who are associated with organized crime. You are saying, if I read you properly, that you do not agree with this position.

Mr. Graham Stewart: I'd make two points.

It's often referred to as automatic, and that's unfortunate, because it's just accelerated. It's an accelerated review with different criteria.

No, I wouldn't agree with that, because the principle is that if you have a person who meets the other criteria and can be supervised in the community for a longer period of time to ensure they're not engaged in that kind of criminal activity, then you have a better chance for the longer-term result. Whereas if a person like that is left in jail, with a very short or no period of supervision, then the likelihood of him returning to criminal activity is enhanced.

Mr. Jacques Saada: Kim, you referred to women with mental health problems and so on. We know more and more services are being provided in-house, in penitentiaries, as opposed to in other public institutions. Do you have any indication of the impact of this trend?

Ms. Kim Pate: We do, and in fact our recommendation to the Correctional Service of Canada would be and has been that they not develop the resources in-house alone. Obviously there's a need to have resources available for women prisoners, who have no ability to access community resources. First and foremost we would recommend accessing community resources and encouraging their development.

We first saw this impact coming out of Newfoundland, literally as they were closing down mental health resources. In fact when I was there in the summer of 1995, the day I was there, they were closing another wing of the Waterford Hospital, which is the psychiatric hospital in St. John's, Newfoundland. The response of the administrator of the local jail was, “They may as well take a truck, load those women up, and back it up here, because this is where they're coming.”

In fact we've seen that trend. We first saw a trend of many women coming from the Maritimes into the system. We're now seeing it, not surprisingly, from other parts of the country as well, as we've seen the evisceration of mental health services across the country.

Historically women have been put in psychiatric hospitals and overrepresented in mental health facilities but underrepresented in prison, and we're starting to see them come in. We're also seeing comments from judges and even lawyers, defence counsel, arguing that women should go to prison to get treatment.

Those are concerns that we have and concerns that we're attempting to work with the Correctional Service of Canada to remedy so that we don't provide services that are only in-house, only in correctional settings, and thereby implicitly encourage those who may be criminalized to be criminalized more quickly.

Right now we have a situation where the majority of the women classified as having mental health issues also have severe mental capacity issues—women who often don't even understand where they are and that they're in an incarceral setting.

The Chairman: Mr. Wappel, you had further questions?

Mr. Tom Wappel: Yes, thank you.

I want to ask two things of you, Mr. Stewart, and if you can, please squeeze the answers into the three minutes. I will ask the perhaps easier one first. Do you have any statistics on recidivism of people who have completed their sentence and their parole?

Mr. Graham Stewart: Yes. The Correctional Service of Canada has produced those statistics.

Mr. Tom Wappel: What are they?

Mr. Graham Stewart: I can't tell you the exact numbers, but what I can tell you is that those who have completed their sentence, the statutory release group, have a significantly higher reoffence rate than those who were on parole when they completed their sentence.

Mr. Tom Wappel: My question is, for those people who have done everything—committed the crime, served the time, done their parole, and it's all over—what's the recidivism rate? Do you know?

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Mr. Graham Stewart: Are you talking about the detained group?

Mr. Tom Wappel: No, I'm talking about, in general, a person who has committed the crime, has done their time, has completed their parole, and it's all over. Do they ever commit a crime again?

Mr. Graham Stewart: Yes.

Mr. Tom Wappel: What's the recidivism rate?

Mr. Graham Stewart: Well, it varies by group. The data that's—

Mr. Tom Wappel: I don't want it by group. I want it by every single person who has committed a crime, served their sentence, and done their parole.

Mr. Graham Stewart: Okay. The best I can give you is that of those who were released from federal institutions, approximately 30% returned to prison for a crime within five years. The percentage who return after five years is very small.

Mr. Tom Wappel: Is that higher or lower than before the CCRA came into effect, or is it the same?

Mr. Graham Stewart: I don't have the exact numbers in my mind, but I would expect it to be the same.

Mr. Tom Wappel: So in that sense the CCRA has made no difference?

Mr. Graham Stewart: I wouldn't expect so.

Mr. Tom Wappel: All right.

On your recommendation 6—

The Chairman: Excuse me, Mr. Wappel. Ms. Pate has something to add on that point.

Ms. Kim Pate: For women, the return rate is about 22% overall for breaches as well as commission of new offences.

What has increased, though—and I suspect it has for men as well, although I haven't worked with men for about eight years now, so I'm not up on that data—is the number of people being returned for administrative breaches of conditions that are not new offences. I'd encourage the committee to ask for updated information on the situation overall, but certainly for women, the recidivism for actual new offences is approximately 2% or less, whereas the recidivism rate overall is approximately 22% when you take into account breaches for conditions, and that is an increase since the CCRA.

Mr. Tom Wappel: It is an increase since the CCRA?

Ms. Kim Pate: Right, not the recidivism component—straight recidivism has remained about constant—but in terms of breaches of conditions, it has increased.

Mr. Tom Wappel: Okay, thank you.

The Chairman: Mr. Wappel, make this your final question.

Mr. Tom Wappel: Okay, I'll pass and wait until my next round. It's too long to go into with one question.

The Chairman: No, this is the last round.

Mr. Tom Wappel: Why is that, Mr. Chairman?

The Chairman: Because no one else has questions.

Mr. Tom Wappel: I have many questions.

The Chairman: All right.

Mr. Tom Wappel: This is a review of the CCRA, and I'd like to ask questions, unless the witnesses have to go.

The Chairman: Well, if they're available to remain...

Mr. Ivan Grose: Mr. Chair, I'm fascinated with Mr. Wappel's questioning. He can have my time and it would be quite all right with me.

The Chairman: Fine, if the witnesses are available.

Mr. Tom Wappel: Thank you, Mr. Chairman.

Number 6 of your recommendations reads:

Given that gradual release is the best way of reducing risk, the fact that a person poses a serious risk is not a rationale to refuse gradual release.

Do I understand you to say that even if all of the best minds in the Correctional Service believe it's a virtual certainty that a serious risk is going to be posed to the public, the person should still be released gradually?

Mr. Graham Stewart: What I'm saying is that the vast majority of prisoners are released anyway; their sentences are fixed and they will end. The question then becomes, what is the best way to release those persons to reduce the risk in the long term? We're saying a system that takes those who are seen as the highest risk and avoids using the programs that have the best way of reducing that risk is not rational.

That is simply because we do believe—and we think it's confirmed in the research—that gradual release is the best way. One of those reasons, as I mentioned earlier, is that in spite of the best assessment you can make of those individuals, what you have in the supervised setting is some control over the environment they're in. The longer the person is in an environment and is stable in the community, the better our chances are in the long run that they will not offend.

Mr. Tom Wappel: Thank you.

Ms. Pate, you recommended something about section 30, and I didn't quite understand your evidence; I'd appreciate your expanding on it. You feel section 30 is discriminatory, according to my notes, and you want an exclusionary clause. What is an exclusionary clause and what do you see there?

Ms. Kim Pate: We're suggesting that by virtue of the fact that section 30 requires that a classification of minimum, medium, or maximum be ascribed to every prisoner and given the fact that the current classification scheme used to arrive at that designation is one that's clearly being shown to be discriminatory by its impact...

I apologize for the brevity; I just gave you the one example.

Mr. Tom Wappel: You're constrained by time, of course, in your evidence. That's why I'm asking you in the question to expand.

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Ms. Kim Pate: Sure.

This is the paper I will be sending along with our brief. We've looked at the extent to which the classification scheme discriminates against women, poor people, people who come from different parts of the country, and aboriginal people. There are discriminatory components to the classification scheme.

We see it particularly when we look at aboriginal women, and that's the example I gave: 50% of federally sentenced women classified as maximum security are aboriginal women, even though they clearly aren't the most dangerous and most violent in the country. From our perspective, it provides the most blatant example of those discriminatory aspects.

It's been long recognized. The Correctional Service of Canada itself recently, as well as the Arbour commission in the winter of 1995, recommended that there needed to be a new classification scheme for women and were in agreement with that. It was certainly the recommendation of the task force on federally sentenced women.

Given that currently the process used is the same as is applied to men, our suggestion is that because the scheme is discriminatory, there should be an exclusionary provision in section 30 saying that the requirement that minimum, medium, or maximum be applied to women should be removed.

Mr. Tom Wappel: So there would be no classification of women?

Ms. Kim Pate: That's right.

Mr. Tom Wappel: And I take it you think there should be no classification of aboriginal offenders either?

Ms. Kim Pate: Well, we're saying there's similarly a discriminatory component, so there should be an exclusion.

Mr. Tom Wappel: Who will be left, after you exclude everybody?

Ms. Kim Pate: We're suggesting you have to look at the provisions. I'll speak particularly for women. When you look at the fact that there are no particular prisons...

Part of the reason there's a minimum, medium, or maximum designation has also to do with carceral placement. Obviously we're indicating that we don't think women should be placed in the men's prisons, as they are now. That would mean the only option for women would be to be placed in the regional prisons, in which case the designation and classification of minimum, medium, or maximum would pose administrative burdens and responsibilities on the institution, which could also be dealt with in an individualized way.

As opposed to having the three-level scheme, they could be using other mechanisms for determining when someone should be getting passes and those sorts of things. Certainly that was the recommendation of the task force on federally sentenced women. Because the women are so few, that's been the recommendation of international experts who were brought in by Arbour. In one jurisdiction in Australia, they've gone to a system where their classification scheme is such that women are classified at a generic minimum level unless they show clear reasons they need to have higher security, in which case that's accommodated by added security within the institution, because, again, the numbers are so small.

Mr. Tom Wappel: Will your paper include an alternative to the exclusionary clause?

Ms. Kim Pate: It does by virtue of saying that the other option would be to have other provisions. Ideally we'd like to see an exclusionary provision, plus the provision of amending section 11 to include that women could not be placed in men's prisons and a clear articulation that all of the women should be in the regional prisons.

Mr. Tom Wappel: All right. I'm very interested in hearing why the Correctional Service believes women should be placed in men's prisons. I find this a very valid point.

Finally, Ms. Pate, on paragraph 77(b), you recommended...

Ms. Kim Pate: The repeal of the current paragraph.

Mr. Tom Wappel: Yes, and replacement with, I believe you called it a national women's advisory committee, similar to the national aboriginal advisory committee.

Ms. Kim Pate: That's correct.

Mr. Tom Wappel: Why?

Ms. Kim Pate: Because while there have been two meetings since the inception of the Corrections and Conditional Release Act, and while I and members of our organization and other groups have had meetings with the Correctional Service of Canada, there has not been the same inclusion of the perspective, the responsibility, from groups such as ours that we took and assumed and see ourselves as having by virtue of our involvement in things such as the task force on federally sentenced women.

It was a recommendation of the task force on federally sentenced women that there be a national advisory body and that there be regional advisory bodies, which would include groups such as ours and other groups that are working directly with women prisoners.

The rationale for section 77 being placed in the CCRA at all was that there was a recognition that there wasn't that in-house expertise on behalf of the Correctional Service of Canada. We're arguing that at this stage we still see that difficulty. We still see it, even though we're pleased—

Mr. Tom Wappel: Excuse me, Ms. Pate. So why repeal it? Why not just tell the Correctional Service to smarten up, read the act, and do what they're supposed to do?

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Ms. Kim Pate: We're arguing for a repeal and replace: put a new provision in that says basically, develop a national women's advisory committee.

Mr. Tom Wappel: Why do you think they would listen to you, as a national women's committee, any more than they would to appropriate women's groups, such as Elizabeth Fry, which has had all that experience helping offender women? What makes you think they'd listen to one over the other?

Ms. Kim Pate: Well, I would respectfully submit that we could also include a provision that the group report to the Solicitor General and to Parliament through you and the Solicitor General. There would be a—

Mr. Tom Wappel: And that could also be in paragraph 77(b) as it is?

Ms. Kim Pate: Correct.

Mr. Tom Wappel: All right, I got your point.

Thank you, Mr. Chairman and colleagues, for your indulgence.

The Chairman: Thank you.

[Translation]

Any other question?

Mr. Jacques Saada: It's not a question, but a brief comment.

[English]

Today is the 40th anniversary of the National Parole Board. The success of this board has been very largely attributable to the help they got from non-government organizations such as the three we have in front of us here. I just want to say I made this statement today in the House, just as a conclusion.

The Chairman: Merci.

I'd like to thank the witnesses. We apologize for the constriction on the time, but your briefs are on the record, and when they're all received, we'll be reviewing them. Thank you very much.

If members could wait, I just want to talk a little bit about our travel plans for the first week of March.

[Proceedings continue in camera]