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, March 8, 1999

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[Translation]

The Chairman (Mr. Paul DeVillers (Simcoe-North, Lib.)): The Subcommittee on Corrections and the Conditional Release Act of the Standing Committee on Justice and Human Rights welcomes Ms. Brosseau and Mr. Normandeau, lawyers and members of the Quebec Bar. We've provided about a quarter of an hour for your presentation and after that there will be questions from members. Who will start the presentation?

Ms. Carole Brosseau (Lawyer, Comité en droit criminel, Barreau du Québec): I'll start the presentation. I'd like to thank you for having accepted to hear us today. I would like to indicate that the clerk of the committee, Mr. Préfontaine, has already received a copy of our brief and it has been sent to translation. You should be getting it shortly.

For those of you who are seeing us for the first time, I'd like to say that the Quebec Bar works on the working committee system on which sit experts in each area. For the analysis of the Corrections and Conditional Release Act, we called upon experts and you'll find a list of them at the top of our brief. This brief, or the position we're presenting today, was approved by the Barreau du Québec's executive. Thus I represent the Barreau du Québec and I'm speaking for the bâtonnier who apologizes for his absence here today as he had to swear in a judge.

With me is Mr. Jacques Normandeau, a lawyer specialized in penal law in Quebec. I'll be doing part of the presentation and Mr. Normandeau will complete it.

The review of the legislation focuses on three areas: the Correctional Service, the Correctional Investigator and the National Parole Board.

As for the Correctional Services, we'd like to draw your attention to two problems. The first has to do with the classification procedure for inmates. Presently, classification of inmates takes a certain time but it remains the mainstay of the system itself. If an inmate is properly classified, if he's sent to the proper penitentiary, he'll be offered the services which will allow him to readapt and eventually reintegrate society and become a lesser risk for society in general.

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Presently, during classification of an inmate, it is considered that the information transmitted is sometimes unequal or incomplete and the quality of the information is deficient. Because of a lack of training of case agents, the information is often not verified which, in the long term, affects the inmate's rehabilitation.

In large part, this is due to the lack of emphasis given to the job of case agent. These are often young professionals, recent university graduates, who don't have a lot of experience either of the labour market or the penal environment itself. These young people lack support, information and also training. They're often left to themselves. The high turnover of this staff partly explains the faulty classification of some inmates.

The second important point as to the Correctional Services is reinsertion. The objective of the Correctional Service is to prepare the inmate to eventually reintegrate society by seeing to it that he presents no further risk for society. Presently, there's a lack of programs that is troubling. These programs mainly affect and focus on the inmates who have the greatest need, in other words the most difficult or most violent cases. We'll get back more specifically to the polarization problem that exists between violent crime and non-violent ones. My colleague, Mr. Normandeau, will talk about it when he addresses the matter of the National Parole Board.

In reinsertion, everything is not absolute and the Correctional Service is trying to do its best. You at least have to try to have programs that will allow inmates to reintegrate society. Today, it can be said that this is lacking. One must know that the success rate that can be evaluated through the statistics revealed in the consultation document does not take reality into account. The success rates should measure the recidivism of an inmate even after his incarceration and the end of the sentence, and you can't see that at this time because the statistics in the consultation document do not reveal this.

As for reintegration into the community, the Correctional Service should offer programs to inmate and support to case management officers so that inmates are classified better. Classification should be analysed and reassessed.

I'll turn over the floor to my colleague. He will discuss the role of the Correctional Investigator, as well as the role and the current operations of the National Parole Board.

Mr. Jacques Normandeau (Lawyer, Barreau du Québec): In practice, one sees that the Correctional Investigator has a particular status that allows him to solve specific problems. He is the person in the best position to act as a watchdog in the system. But in actual fact, even though he is full of good intentions, he is not able to keep up with the demand. Because of his lack of resources and power—he only has the power to make recommendations—even if he and his office constitute an important tool to make progress and to ensure that the rules of law are followed properly, when it comes to day to day operations, he is just unable to do so. It's not because he lacks good will, it's certainly because he lacks the resources and he is unable to impose his viewpoint.

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When you read the Correctional Investigator's annual reports, you mostly find the same problems. I have been practising in this area for 12 years. I started with the Quebec Legal Services Commission. The problems that we spoke of 12 years ago that were mentioned in the Correctional Investigator's reports were much the same as today's problems. We haven't seen any improvement, even though the Act is better from a mechanical point of view. The tools are available, but when it comes to using them, the problems are the same as they were 12 years ago. It's a real pity. I wish I could report the opposite to you, but I have worked with people from the Office of the Correctional Investigator on many occasions, and I can tell you that they see the problem, they want changes, but they can't implement them.

Sometimes they manage to correct a problem, but only for a short period of time. The solution may last for six months or a year, but the underlying problem comes back. For example, often people have problems with transfers. The staff changes. There is a great deal of turnover among the case management officers and the guards, and the same problems come back regularly. We can't say there has been any true progress, although we do have the necessary tools. We do have an Act that allows us to solve the problem, but we can't implement it. We have the equipment, but we don't have any gas to operate it.

It's a pity that we can't implement the corrective measures recommended by the Office of the Correctional Investigator, measures that are often very realistic. These people are stationed in Ottawa and they have to travel regularly. Usually they carry out their investigations over the telephone. They may travel to a particular penitentiary once every two months. They spend two days there and meet with 40 inmates. Obviously, given those circumstances, it is very difficult for them to check what's happening and to take corrective measures that can evolve over time. Often measures are implemented for a very short period of time, and then the same old problems constantly come back. This is what we have always seen, and it's a real shame.

I'd like to go back to Justice Arbour's remarks. She said that the Correctional Investigator had a very important position, and that we should ensure that he has the tools he needs to get people to correct the mistakes that have been committed all too often in the past, the mistakes that the Investigator sees over and over again.

Let me give you one last small point about the Correctional Investigator. We at the Quebec Bar have often noticed one particular practice in the system. When inmates file a complaint within the Correctional Service, they go through the infamous grievance procedure. In the normal course of events, particularly after several years of practice, you see that when the grievance is well founded, the system is totally ineffective. I'm not talking about someone who's asking for a bar of medicated soap or someone who doesn't like his uniform; I'm talking about major cases where complaints can affect the severity and the duration of incarceration. To be quite honest, in these cases, the grievance system is completely ineffective.

There are three different levels of appeal, but in actual fact, none of them is effective. In our opinion, there is absolutely no point in having three grievance levels where you don't have any elbow room and you don't really have the time to study the situation. We would prefer a single level of grievance, where a file can truly be assessed independently and a decision can be made. The person who evaluates the matter at hand should be able to be independent. The Correctional Investigator may be the best person, or the person in the best position, to evaluate the file.

I would like to talk about transfers. Often inmates grieve because of a transfer or because they have been placed in isolation. In 12 years of practice, I've never seen anyone win a transfer by means of a grievance. I've practiced in federal penitentiaries nearly every day for 12 years now, and I've never seen anyone get one that way. On the other hand, I've seen delays of six to seven months before an inmate gets to the third level to get an answer or just to be told that the file was properly assessed at the first level and that there wasn't any problem. The answers given are very short, and they don't really deal with the questions asked.

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In Quebec, several lawyers have specialized in transfers. Quite often they file grievances for inmates. Although the inmates may be discouraged at times by the answer that they receive, the lawyers tear their hair out when they see the quality of the answer. We ask very specific, very relevant questions, and the answers we get back are so trivial that we ask ourselves why we filed the grievance.

We just see that it's pointless, it's a waste of time. It drives up costs, because people have to be appointed at each level. The system is not effective, it doesn't solve the real problems, and in the final analysis, we get the impression that each level explains why a mistake may have been made at the first level, by covering things. Basically, nothing changes and no progress is made.

Instead of helping inmates take responsibility for themselves and for their future... The purpose of this process is to allow people to be heard and to explain their actions. All it does is make people more frustrated. Just imagine what a lawyer thinks as he reads an answer to a question that he spent a lot of time preparing. He is lucky enough to live outside the system, and when he reads the answers, he wonders what it could mean. It's frustrating, and it even makes you angry. It's an insult to our intelligence. I'm sorry, but some cases make us really mad. We put ourselves in the shoes of the person who is behind bars. People say that the system has to have programs for the inmates and invest in them. Well, some people make an investment for two to four years, but our entire investment can be shattered just with an answer that has a major impact on the person, but in reality doesn't deal with the issue. We just get platitudes. They say that they find no error in the file.

If I could change one thing about the current process, it certainly would be the grievance procedure. If you ask inmates what is the biggest waste of time for them in the system, nearly all of them will tell you that it's the grievance system. It frustrates the inmates, and it in no way reaches the goal that it was created for, which was to allow people to explain their actions and take responsibility for them. In the final analysis, it does the opposite.

Our brief suggests that the Correctional Investigator respond to grievances, because he is far more independent. We don't need three levels of grievances when we can have a single level that is effective. That is all I have to say about the Correctional Investigator.

As for the Parole Board, I could write an entire essay. We have had a tremendous amount of difficulty with the new legislation in Quebec over the past year. It's not because the assessment tools are bad. The problem is that the board members do not have enough independence. We saw that in some cases, the members did not have complete freedom to take an enlightened decision, free of pressure.

Let me explain exactly what I mean. We saw that some Board members—I mean members hired on contract as opposed to permanent ones—because of their precarious status... More and more, Board members are appointed for short periods of time. They get a one or two-year contract. Often these members do not feel comfortable taking a decision when their position is different from the position of the Board's management.

Our brief mentions two cases where the Superior Court made some very harsh comments about the Board. Although at the time we thought the problem could be solved that way, we quickly realized that we were just seeing the tip of the iceberg, the beginning of the problem. Today, practising lawyers are asking for changes in this regard, the Board members are asking for changes, and even the judges of the Superior Court are asking for changes.

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The problem we are seeing in day-to-day practice is that many contract members suffer a number of consequences when they rule on a decision taken by another, more senior Board member, either at the appeal or at the review level. This doesn't come from us, it comes from the people who are sitting on the Board and who have to make the decisions. Several Board members had no hesitation in saying that they were asking for a great deal more independence and that they didn't have the necessary independence to rule on cases. When you look at the legislation, you see that the problem does exist, and I will explain why.

The vice-chairperson is the one who appoints members, decides who will sit and who will not sit, and how often members will sit each week. The vice-chairperson also decides which specific files members will study. At the same time, the vice-chairperson evaluates the members, makes recommendations about them to Ottawa, requests renewal of their contracts or recommends the appointment of new members. Finally, he evaluates the commissioner's work.

It may appear strange, but this same person, the vice-chairperson, sometimes considers cases at the first level, and then asks contract members to hear the review. Let's take the example of accelerated reviews. The first hearing is held and the file is reviewed. The vice-chairperson can hear the case and recommend or not recommend parole. Then he sends the file to be heard before two Board members, and so the case ends up before two contract Board members who are currently being evaluated by the person who has sent the case to them and who ruled on the case himself at the first level.

In criminal law, such a situation would be entirely unacceptable; however, it often happens in parole cases. We noted this problem in practice, but it was emphasized when Board members themselves stated during a hearing or at the end of a hearing that, in some cases, they had the impression that they did not have a free hand to make a decision.

People gave us very clear, obvious examples. There are permanent Board members who are paid annually, and who don't sit throughout the year because they have disagreed with the decision of one of the vice-chairmen and there are Board members hired on contract who are paid per service and who are sitting all the time. Somebody will be paid and stay home because he does not share the opinion of the vice-chairman. On the other hand, there is the member hired on contract who may be appointed for only two years and who may be on an assessment period, and that person will work all the time. I'm talking about working all the time, because when a member sits for one day, another day is required to review the file.

The Board members themselves noted that there is a major problem at the moment. It was noted in Quebec. The Court pointed it out. To correct the problem, members will have to be independent. No one should be able to interfere in their decision-making process. They should also receive training. We cannot over- emphasize the quality of a member or his professionalism, because this constitutes the basis of the success of the corrections and parole system.

There is another problem. We are not saying that too few people are being released. We are merely pointing out that some people who get out do not meet the criteria, whereas others who are not released meet the criteria. There is a training problem.

It must be recalled that since the Mooring and other cases, hearings involve many legal and technical aspects. I think that the Board should not allow a hearing to be conducted today unless there is at least one lawyer who is very well-versed with procedural issues, the Charter, and rights and equity, to ensure that the process is well served, and we should be able to call upon the services of someone who has the knowledge to ensure that everything is being carried out properly. I think that this is important.

The Chairman: Mr. Normandeau, I will have to stop you because the members need time to ask their questions.

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Mr. Jacques Normandeau: No problem.

[English]

The Chairman: Mr. Gouk, a round of seven minutes, please.

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): Thank you, Mr. Chairman. I perhaps won't need that. Our witnesses certainly covered quite a range of subjects.

I guess one of the problems we have as legislators looking at making change is public perception. I don't know if the brief we'll ultimately get is essentially what you presented to us or something different.

If the witnesses are in favour of a program that would see convicted people moving from maximum to medium or minimum day parole, release programs, and so on, the problem we have is how we sell that to the public. For example, if a violent offender is sentenced to eight years and the public sees them out on some form of early release after four, they get very incensed. Likewise, when any offender is out on any kind of parole and then commits an offence, again the public gets very irate.

So we need some kind of system that justifies the release, the moving up from maximum to medium to minimum, justifies early release and lays down very specific penalties for those offenders who break the regulations when given this type of opportunity. I would be very interested in any short comment the witnesses might have, and more interested, if they are in fact in favour of this, if they would be prepared to make a written presentation to this committee so we would have their input on this.

[Translation]

Ms. Carole Brosseau: Mr. Gouk, I will answer your question. Our brief goes much further and is much more specific. It deals with three subjects. In view of the time available for our presentation, we have focussed on what we consider to be the three most important subjects.

There is clearly a problem of perception that is linked primarily to the accelerated parole review process. It is also related to another problem at the present time. We are no longer dealing with an offender. There is a broad polarization between violent and non-violent crimes. Unfortunately, this approach is advantageous to organized crime. People who have served one-sixth of their sentence often do not appear before the NPB, but have their cases reviewed on file, and are then released. This causes problems, and we advocate that the accelerated parole review on file be ended. In this respect, the Quebec Bar agrees with the public.

Furthermore, it must be remembered that any conditional release is based on rehabilitating the offender and protecting the public. We must ensure that the public is protected when the offender is released into society.

In its review of the files, the NPB must assess the status of the offender and his risk to society. Then the Board must decide whether or not to release the individual.

We believe that the current process for release is adequate; nevertheless, it is really up to the Board to assess the risk. If the risk assessment is accurate, there will be no problem. This is what has to be done. But to assess the risk, the whole file must be available and there must be better communication about the assessment itself. The offender also has to be dealt with. Someone said on Thursday that the failure of the corrections system becomes obvious when an inmate has to be released at the end of his sentence. At that time, he will not have learned appropriate social behaviour to allow him to reenter society. The objective is to allow for rehabilitation, and this will make all of society safer. I don't know if you are following me. My colleague could perhaps continue.

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Mr. Jacques Normandeau: Don't forget one thing. When someone re-offends while on parole, the media make much of it, but this also has to be put in the context of the number of people who are paroled and the number of people who might re-offend.

There is another problem that must be remembered. When a prison sentence is handed down, the public usually analyses its success on the basis of the date the sentence comes into effect and the date it ends; but you have to remember something. At the federal level, the average sentence may be two or three years. The public must know that if the person re-offends after the warrant expiry date, one or two years after the end of a four-year sentence, is caught and gets another four-year sentence, and re-offends after another four-year sentence—this happens all the time in real life—the statistics would indicate that three different individuals have successfully completed their sentence. The real success is not determined. But you have to remember one thing if you want the people outside to understand the reality. I am the head of a family, and I can empathize with my neighbour or with anybody else. When someone offends again, be it while on parole or at the end of a sentence, does that make any difference to the person who was subjected to armed robbery? It doesn't change a thing.

[English]

Mr. Jim Gouk: I understand what you're saying, and I don't disagree with you at all. What I would like to have, and I don't know if that is what's in your brief—

The Chairman: Wait a minute, Mr. Gouk. We have the brief. It's at translation right now.

Mr. Jim Gouk: Okay. I understand that. Again, because I haven't read it, I can't refer to it.

The Chairman: Yes, okay.

Mr. Jim Gouk: Our problem is that in a given institute, say a maximum security institute with 200 or 300 prisoners, how do we get them accurately and in a planned manner from being incarcerated in maximum security to medium, to minimum, to day releases of some type or another? Are there some specifics so we can say these are the specific things, almost like a checklist? So someone in there, first of all, knows what they have to do in order to avail themselves of the opportunities for rehabilitation.

Second, can we come up with a schedule of very specific penalties for not following the rules? If there are going to be advantages to them to aid them in rehabilitating themselves, there also have to be consequences for failing to live up to what's expected of them. It has to work both ways.

[Translation]

Mr. Jacques Normandeau: The necessary tools do presently exist, and this is perhaps the most difficult and frustrating part of the present situation. We know that the tools exist, but they are not used during the assessment process.

You have raised a very relevant question. How do we decide whether somebody in maximum security should go to medium or to minimum? This is the crux of the issue. It involves case management. Case management must technically begin and begins with the facts at the reception centre. When someone starts their sentence, an assessment is made. All the facts may be there to make a proper assessment, but the information is not properly disclosed. There is often a lack of rigour in the information provided, and this can penalize someone. There may be people who tend towards violence, even though they have not been sentenced for a violent crime. If the file were correctly assessed and if all of the available information had been obtained, it would have become obvious that the person could become violent. This works both ways, both allowing some people to obtain more programs or a better security rating and also giving a higher security rating to someone who needs a much higher rating.

This is where it really hurts. Moreover, our brief says a lot about this. It is absolutely essential that all the information be available right at the reception centre, at least in the first three months. When I say all the information, I don't mean just statements made over the telephone by the police or a Crown attorney. I'm talking about concrete information: information from the court, transcripts and so on. Often the only thing that the Service receives are the notes made by the Crown during the trial. We do not receive the defence statement, or vice versa. The same holds true for police reports. Sometimes it is not the case investigator who is making the reports or recommendations, but perhaps the tenth police officer who has worked on a file, who will simply give a personal opinion without checking any further.

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In practice, it often happens that a police force will tell us that they have no restrictions concerning a given individual, and that everything is fine, but then after four years, two days before a hearing, when we thought we were dealing with a certain type of person, we will receive a police report that will say entirely the opposite. This is shocking, because the person has been mishandled for four years. The safety of people may have been in danger because the security rating was incorrect. However, the tools exist.

The Chairman: Thank you, Mr. Normandeau.

Mr. Marceau.

Mr. Richard Marceau (Charlesbourg, BQ): Thank you for your presentation. It's always too short. We always have too many things to say in our allocated time, but we have to live with this problem.

I have listened to your presentation and I have also briefly glanced at your brief. Obviously, I haven't had time to read it, but before we get into the details, I would like to place you in a spectrum. On the one hand, people are telling us that the Act is perfect and that everything is fine, on the other, we are being told that the Act is inadequate and must be scrapped. Where do you fit in? Does the Act require fine-tuning or an overhaul?

Ms. Carole Brosseau: This Act is relatively new. It was adopted in 1992. There have been two major amendments since then. The Act is being improperly applied in some cases, but it also requires some amendments, particularly clarifying the status of the National Parole Board, to highlight its role as an administrative tribunal. We believe this is absolutely essential. This must be accompanied by the independence of the Board and of its members.

Mr. Richard Marceau: As in the Valente decision.

Ms. Carole Brosseau: Yes, as in the Valente and Mooring decisions. This is quite astonishing when we read all the documents related to that Act. It is sometimes clearly stated that it is an administrative tribunal. The Mooring decision, whether you're reading the dissenting opinion or not, places it in one camp or the other. So, there is no clarity with respect to its role. In our opinion, such clarification would eliminate some of the interference or the members' lack of independence.

Naturally, this isn't all. There's also training. We spoke of this earlier. I think that at the legislative level, the Correctional Service is fine. It's not only that people are sometimes lacking in training. There's also the lack of encouragement in the evaluation process. The Correctional Investigator's role should be clarified, and I believe that the Arbour Report said the same thing. It even went so far as to speak of increased judicial review, because the Correctional Investigator could not do his job. Changes should be made at this level.

Obviously, the bill needs to be changed. These are substantial changes but it's not a case of throwing the baby out with the bath water.

Mr. Richard Marceau: Fine. That is what I wanted to know.

You mentioned certain problems regarding the accelerated parole review. I'm sure that a particular name comes to mind.

Ms. Carole Brosseau: It shall remain nameless.

Mr. Richard Marceau: Following the Lagana affair—let's name names—I tabled a bill that would prevent money launderers from being released from prison after a sixth of their sentence has been served. This bill was taken up again, if my memory serves me well, within Bill C-51, tabled by the government.

That having been said, the only part of your brief that mentions the accelerated parole review is the conclusion.

Ms. Carole Brosseau: The important parts are mentioned, but they are elaborated upon later.

Mr. Richard Marceau: They are? Fine.

Ms. Carole Brosseau: They are elaborated upon in several parts of the brief.

Mr. Richard Marceau: So, if you wish to eliminate the accelerated parole review, it is not simply for perception's sake, as my colleague Mr. Gouk said. It goes much further than that.

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Ms. Carole Brosseau: When we presented our brief on Bill C-45 in 1994-95, correct me if I am wrong, we said that we were against that procedure because it would benefit organized crime. At that time, it was all only on paper. What we see today is even worse.

Mr. Richard Marceau: I don't know if you're aware of this, but last week, several members of this committee went to British Columbia and Alberta to visit penitentiaries and speak to people who are in the system, whether they were inmates, guards or parole officers. Something that was mentioned to us several times was this problem of automatic parole after two thirds of the sentence has been served. Several people told us that it should perhaps not be automatic, that inmates should have to deserve the possibility of release after serving two thirds of their sentence. We heard some very strong arguments in favour of that. Perhaps that's going back to what we had before. Others said that on the contrary, we should keep what we have. What is the Quebec Bar's position on that?

Mr. Jacques Normandeau: Previously, there were monthly performance reports for each inmate. What would actually happen, within the same penitentiary, where there were four or five different sectors and therefore four or five people responsible for those sectors, was that the criteria varied from one sector to the other depending on who was in charge of the monthly assessments. For example, a negative performance review for one officer would mean one less day of earned remission. For another, two negative performance reviews led to one day less. For another, three negative performance reviews would be the condition. Within on penitentiary, people were treated completely differently, absolutely arbitrarily and yet the same legal principles were being used. It only created problems.

Adjustments have now been made. It's true that there isn't automatic release after serving two thirds of the sentence. Inmates are told that they have earned that time and they are released after they have served two thirds of their sentence, but that has to be moderated. The brief mentions that. More and more, the Board and the Correctional Service are using the new process that was adopted during the last amendment to the bill, that provides for putting an individual in transition or under intensive supervision, after two thirds of the sentence have been served. That adds to what was called detention for more serious cases, after two thirds of the sentence have been served. Added to that, and this is being used more and more, we now have transitional residency orders or monitoring orders. I would say that those are used mainly in the case of people who have served two thirds of their sentence, are still in maximum or perhaps medium security, but who still have less than desirable behaviour and may offend again.

In our brief we stated that we have a problem with that, not with the measure, which may be interesting in itself, but with the fact that if the inmate is involved in this process after having served two thirds of the sentence, then parole conditions are often set the week before release, without even consulting the inmate. Thus, they leave without understanding why and without really being aware of the impact of that decision. That's when the reverse effect, the boomerang effect occurs. They don't accept having conditions imposed upon them and they feel they are victims. As soon as they feel they are victims, even if they aren't in reality, they become problem cases on the outside and can then offend again. At that point, the goal has not been reached, which was to protect society and to attempt by all means to change these people's behaviour.

I pointed out that the tool already exists, but there's a problem in applying it. The decision to use it is made too late in the process and not enough work is done with the inmate before applying it. But the tool is there if the wish to use it is there. If it is being used in only one percent of the cases, it's perhaps not the bill that needs to be changed, but rather the way in which it's being used. Perhaps our criteria are too broad. Perhaps people are hesitating to use this tool when in reality it could be used more often but better in risk assessments.

The Chairman: Thank you, Mr. Normandeau. Thank you, Mr. Marceau.

[English]

Mr. MacKay, you have a seven-minute round.

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[Translation]

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Ms. Brosseau, Mr. Normandeau, thank you very much for your presentation.

[English]

You've given us a very in-depth analysis, and obviously you have a great depth of knowledge on this.

There were a few comments I picked up on that I wanted to follow up with some questions, in particular the grievance system you talked of, where you have three levels. I take from your remarks that you feel that this could be pared down, or perhaps some levels completely eliminated.

If we have a situation where these multi-levels are repetitious, the information is simply passed along and decisions are confirmed rather than actually reviewed, are you recommending to us that we consider collapsing these into—as I believe Mr. Normandeau indicated—a single system, which would be preferable and would eliminate repetition, duplication, and time? Because it appears that time is something very much of the essence when it comes to an individual who's awaiting the outcome or a decision of a grievance. They're doing time, and they're basically sitting in limbo waiting for a decision.

Have I characterized your position properly?

[Translation]

Mr. Jacques Normandeau: Yes. That is exactly what we are suggesting. We are convinced that one efficient level for grievances is better than three different levels that in the end don't change anything.

The problem is that currently all grievances are placed in the same basket. As I explained earlier on, some very serious situations arise, for example transfers to higher security institutions, confidential information regarding security that may prevent parole from being granted, reclassifying upwards or downwards. In order for this service to be successful, mistakes cannot be made regarding the individual being assessed, at all levels. That individual cannot be classified too high nor too low.

For people who want to complain about serious decisions, we need a true grievance system administered by an independent person, and not by the director or the deputy-commissioner or a third level commissioner. These people shoot themselves in the foot. I cannot see a prison warden saying that one of his officers was wrong and the inmate was right. It's not that the warden may not want to do it, but prison dynamics dictate that that officer would then be put in a very precarious position with respect to the inmate. If an officer makes one mistake in 25 years of service and has the misfortune of making that mistake after only five years, the fact will get around. That individual will be categorized by the population. It happens all the time. That is part of prison dynamics.

Thus, you need someone who is independent in order to be able to properly assess a file and in order not to feel stuck between a rock and a hard place. That is one of the solutions we proposed: there could be another independent system. If you are going to have a system to evaluate these grievances, you might as well have one that is efficient, that would also reduce costs and waiting periods. That is what is most important in a penitentiary. If it takes eight months to assess a file when meanwhile the individual has been released at the end of his or her sentence, there's not much point. That is the main problem we have with this.

Secondly, to prevent people from being swamped by grievances, because you know that sometimes the number of grievances is enormous, and some of them aren't important, we were suggesting another level, that is another level of application. Let's not forget that when an inmate files a grievance, it's as though he were saying he was complaining. Sometimes it's not really a complaint. He simply doesn't like a situation or might have an idea to submit or a correction to suggest. When it's always seen as a complaint, the officer receiving this complaint feels it's a personal attack on his work and on his evaluation by his superiors. Instead of bringing people together to talk and settle sometimes minor problems, it has exactly the opposite effect, in other words brings about tension and settles nothing. So we're suggesting an application level to settle things that are administrative in nature.

You can pick any penitentiary out of the air, say the Institut Leclerc in Quebec City. There are things that we must be able to settle on the spot by involving the penitentiary administration and the officers at that level. I don't call that a grievance, but rather an application. So people would be able to communicate and settle a problem that wouldn't be in the nature of changing the individual's conditions of incarceration. That way you'd decrease the huge number of grievances at another level and those problems could easily be settled at that level if the people had the training.

The Chairman: Thank you.

[English]

Mr. MacKay, do you have any other questions?

Mr. Peter MacKay: Yes. I just want to follow that up briefly.

• 1625

It seems to me—I'm reading into this somewhat—that those who are tasked with bringing about accountability within our prison system are in essence avoiding accountability themselves.

To tie that in to the remarks you made about commissioners themselves, the independence of commissioners and their ability or their reluctance to take strong positions when they're only there temporarily, does this appointment process you envision involve having a panel and doing away completely with temporary commissioners?

I'm curious about how you see this as a solution, having permanent commissioners there, when the problems appear to me to exist with both. If there isn't a system currently in place by which commissioners are held to account for their decisions or not moving the cases along expeditiously, how is doing away with temporary commissioners going to address that problem?

[Translation]

Mr. Jacques Normandeau: The only way of settling the problem is to see to the independence of the Board members and to their training in their area of qualification. You're right in saying that the problem isn't only because you're temporary or indeterminate, because when someone is indeterminate, you can always put them on the shelf for a year. One must wonder why he was appointed and why he's there. Why do Canadians pay someone to stay home? If he's competent, he should sit on a regular basis.

[English]

Mr. Peter MacKay: May I interrupt for a second? Are you advocating changing the appointment process, taking this out of the political process altogether and making it strictly based on very stringent criteria that must be met by those commissioners?

[Translation]

Mr. Jacques Normandeau: I'd say yes. It's the best way to protect society and not make mistakes. Even if those people are acting in good faith, some, without meaning to do so, could be limited in some areas and make mistakes in good faith. However, that could have very serious consequences for our fellow citizens later on. You're perfectly right in saying that it is a matter of qualification. The better trained people are, the more carefully choices are made at that level and the greater the independence that is ensured. With something like that, you'd get the best results and people would be far more confident about the Board's decisions. We should never forget that. The quality of decisions is a major element and you actually should have the most competent people available. At the end of the day, we're talking about people's safety and that's very important.

The Chairman: Thank you.

[English]

Mr. Wappel.

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

Thank you for your presentation. I have a number of very specific questions. I would greatly appreciate, because of the number of them, if you could answer in one word. That would be great. If not one word, one sentence would be acceptable.

You're talking about grievance procedure. I take it that is under section 90.

[Translation]

Ms. Carole Brosseau: I should look at the Act, but it's quite possible.

Mr. Jacques Normandeau: Yes, that's it.

[English]

Mr. Tom Wappel: Okay. If it's under section 90, then the actual grievance procedure is as set out in the regulations, correct? It's not actually set out in the act itself.

[Translation]

Mr. Jacques Normandeau: Could you repeat the second part of your question? I don't think I quite got it. I'm sorry.

[English]

Mr. Tom Wappel: The actual procedure you were talking about, the three levels of grievance, that is set out in regulations to the act, is it not, and not in the act itself?

[Translation]

Mr. Jacques Normandeau: I'd have to check to be sure. I can't confirm it.

[English]

Mr. Tom Wappel: I suggest to you it is. If you find I'm wrong, please let us know later on.

Number two, I'd like to concentrate on the correctional investigator for a moment. You said that in practice he cannot meet demand. On what facts do you base your statement that the correctional investigator cannot meet demand? Explain briefly, please.

[Translation]

Mr. Jacques Normandeau: On the annual reports of the Investigator and on what they say themselves. We meet them regularly in the penitentiaries and they know very well that despite all their good will, they're rather limited as to time when checking up on the information that's given them or the complaints. The number of complaints is so high that in effect...

• 1630

[English]

Mr. Tom Wappel: Okay, Monsieur Normandeau. When he gets here, we'll ask him if he cannot meet demand. I just wanted to know, and you've answered the question.

As translated, you kept using the word “commissioners”. I'm wondering if I could get clarification of that. When you use the word “commissioners”, do you mean members of the National Parole Board? Is that what you're talking about when you talk about commissioners?

[Translation]

Mr. Jacques Normandeau: Yes.

[English]

Mr. Tom Wappel: Okay, because even in French, it's called membres, not “commissioners”. That's confusing, because there is a correctional commissioner and deputy commissioners who have nothing to do with the Parole Board. So I just want to be clear that you're talking about the Parole Board when you're talking about commissioners. Yes?

[Translation]

Mr. Jacques Normandeau: Yes.

[English]

Mr. Tom Wappel: Thank you.

Did I understand you to say that you do not believe that the Parole Board members are independent? Was that your evidence?

[Translation]

Mr. Jacques Normandeau: I'm not saying the problem exists in all cases, but it does exist. In Quebec, over the last year, there have been very clear cases that were noted in court or even some of the indeterminate Board members themselves asked the Solicitor General for an investigation. They asked for an investigation because they were complaining about not having the independence necessary to do their job. So the problem was noted.

[English]

Mr. Tom Wappel: Mr. Normandeau, who was compromising their independence? Exactly who?

[Translation]

Mr. Jacques Normandeau: Listen, I'll answer more personally. I don't want to involve the... We're aware of the situation and I would then be alluding to...

[English]

Mr. Tom Wappel: Monsieur, I don't know about the situation. I do not live in Quebec.

[Translation]

Mr. Jacques Normandeau: Well, there is an easy answer. I can send you the report written by the Association des avocats et avocates en droit carcéral du Québec that clearly established where the problem was, where it came from and how it evolved. Everything is in there.

[English]

Mr. Tom Wappel: Okay, would you do that then?

[Translation]

Mr. Jacques Normandeau: It will be a pleasure to send it to you. It's very specific.

[English]

Mr. Tom Wappel: All right. Excellent.

Did I understand you to say that the Barreau du Québec is against accelerated parole review on review of the file only, or is the Barreau du Québec against accelerated parole review, period?

[Translation]

Mr. Jacques Normandeau: I'd say we're against the accelerated procedure, and that's it. We have nothing against the fact that someone can be evaluated one sixth of the way through their sentence, but the evaluation must be based on merit. We're against the idea that an individual can be freed automatically without a specific evaluation.

[English]

Mr. Tom Wappel: All right. Excuse me. I want to be very clear on this point. The Barreau du Québec is against sections 125 and 126. Is that what you're saying? That's accelerated parole review.

[Translation]

Mr. Jacques Normandeau: The Bar is against the automatic criterion one sixth of the way through the sentence.

[English]

Mr. Tom Wappel: No. There are two sections.

[Translation]

Mr. Jacques Normandeau: Yes.

[English]

Mr. Tom Wappel: Sections 125 and 126. The title of it is “accelerated parole review”. My question is simple, I think. Is the Barreau du Québec against those sections, or against review by paper only? Which is it?

[Translation]

Mr. Jacques Normandeau: It is against the examination in its present form. That is clear. It is against the accelerated procedure.

[English]

Mr. Tom Wappel: So you don't agree with accelerated review as put out in those sections at all, or do you wish there to be a hearing each time?

[Translation]

Mr. Jacques Normandeau: There are two things with the accelerated procedure. Clauses 125 and 126 allow you to get out... There's an automatic hearing, as you've said so well, and this allows the inmate to be freed automatically and mandatorily once he has met specific criteria; the inmate is not released on merit.

We're against this obligation. We think that there should be a hearing in all cases. We're not talking about two hearings, but about one hearing that would allow the Board members to judge the person. In a case of fraud, for example, the person isn't violent, but you have everything you need in the file to know there will assuredly be a repeat offence the following week. At the present time, the person must be released. That's what we're against. So there should be an evaluation allowed one sixth of the way through the sentence, but always using the real criteria.

• 1635

[English]

Mr. Tom Wappel: This is my final question, Mr. Chairman.

The criteria for membership on the National Parole Board is generally set out in section 105. Is the Barreau du Québec opposed to subsection 105(1)? Just to make it simple, it's mandated in the statute that they have to be diverse in their backgrounds. In other words, it's not 45 lawyers with experience representing criminals; it is people diverse in their backgrounds, and that is mandated in the statute. I want to know if the Barreau du Québec doesn't agree with that or does agree with that.

[Translation]

Ms. Carole Brosseau: We're not against diversification in the area of training. We believe that on the bench, when two members of the National Parole Board are sitting, at least one of the two people should be a jurist. Ideally, as with other administrative tribunals, you should have people with diversified qualifications in criminology, social work and so on. They can be complementary, but you should always have one jurist. The 1992 regime transformed a system of privilege into a system of law. The law was completely changed. The law-based attitude was changed. Actually, we're not the ones who said so: it's the Supreme Court.

So one of the two members should have legal training. We're not saying we're against diversification.

[English]

Mr. Tom Wappel: Let me understand that. There are 45 members of the board, so you're saying that one half of those, by statute, should be people of legal training. Is that the position?

[Translation]

Ms. Carole Brosseau: If you set a quota, yes, but there is no quota. The bench is made up of two or three people.

[English]

Mr. Tom Wappel: Sorry, section 103 says there shall be 45 members of the Parole Board. You are saying there should be at least one member on each panel. So either you're going to have less than half who are lawyers, and they're going to be on more panels in order to meet your criteria of one jurist on each panel, or you're going to have half and half.

Since it's in a section of the act, I'm asking you, since this is a review of the act, if you're recommending there be a statement in the act that half, or some amount, of the National Parole Board's 45 permanent members should be lawyers, or legally trained.

[Translation]

Ms. Carole Brosseau: You don't have to set a number, you could do what is done for many Acts calling for the establishment of quasi-judicial tribunals: you could stipulate that the members attending the first hearing must be different from those hearing the appeal and that, in addition, one of the two members must have some legal training. I couldn't determine what the number of members should be. That would depend on the people who are attending the hearing. You could, however, specify the number in the statute.

Mr. Tom Wappel: Thank you, Ms. Brosseau. Thank you, Mr. Normandeau.

Mr. Jacques Normandeau: We are certainly not against the diversity of the people sitting on the Board, because on many occasions we have seen how well that has worked out in practice. We shouldn't change the system, because I think we would be making a terrible mistake if we were to do this. I've often seen Parole Board members who were not legal specialists, who are perhaps music teachers, but who were extremely competent and conscientious. They were very professional people. We should not change that.

However, with Supreme Court decisions and the Charter, there are more and more points of law on specific issues pertaining to the quality of information. As a result, Parole Board members who are quite capable of doing a comprehensive analysis of a file must now deal with legal issues. The Supreme Court Mooring case comes to mind. Isolate the 45 permanent Board members that you have in Canada and ask them to explain, in their own words, what the Mooring case was all about and you will get the picture. This is perhaps the most important case. We see this in the field.

• 1640

This person doesn't necessarily have to be a lawyer, but he or she does need some legal training. We could take a former fire fighter or police officer and provide this person with some legal training so that he or she would be comfortable with these concepts. The Board members themselves are not always comfortable when dealing with very detailed issues. They have good intentions, but they wonder whether or not they're on the right track and if the evidence presented is reliable. How does one define reliable, persuasive evidence when analysing a file? Ask the question and you will get 20 different answers.

I am not diminishing these people, on the contrary, I want to help them. A panel member who has legal training will be able to guide his or her colleagues and prevent them from making certain mistakes. Furthermore, the fact that these people come from different walks of life, have different cultures and different personal knowledge is without doubt crucial to the board. Without this, we would be cutting ourselves off from people, from Joe Citizen, in the decision-making process. The best way to maintain contact with reality is to have a lot of diversity. I'm in full agreement with this.

[Editor's Note: Inaudible]

The Chairman: —

Ms. Carole Brosseau: Yes, I will send you some copies.

The Chairman: Could you send these decisions to us?

Ms. Carole Brosseau: No problem. I will send them to you this week.

The Chairman: Thank you.

[English]

Mr. Grose has one last question.

Mr. Ivan Grose (Oshawa, Lib.): Thank you. It's not so much a question. Maybe the testimony is a little too fast-paced, or possibly I'm too slow with it. Probably the latter. But all other testimony pales in comparison to the one point, the independence of the Parole Board members. I'm looking forward eagerly to the reply Mr. Wappel requested, because I think it is terribly important. Thank you.

[Translation]

The Chairman: Thank you, Mr. Grose.

I would like to thank the witnesses. I know that you have other commitments. Thank you for coming.

We will take a two- to three-minute break as the witnesses change seats.

• 1643

• 1647

[English]

The Chairman: We have with us now witnesses from the Canadian Bar Association, Mr. Michael Jackson, Mr. Allan Manson, and Ms. Tamra Thomson.

Are you each going to make a presentation, or have you worked out how you're going to do this? Go ahead, Ms. Thomson.

[Translation]

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): The Canadian Bar Association is a national association representing over 4,000 jurists in Canada. The Association's primary objectives include improvement in the law and the administration of justice. Our presentation today is reflective of these objectives.

[English]

With me today are two members of the Canadian Bar Association's committee on imprisonment and release. The committee has been working for well over 12 years on all matters of correctional law and has participated quite actively in all of the government reviews of correctional law in Canada.

Both Professor Manson and Professor Jackson are not only professors of law, but each has a private practice in correctional law. I will ask Professor Manson to start on the substantive comments on the brief that you have in front of you.

Prof. Allan Manson (Lawyer, Committee on Imprisonment and Release, Canadian Bar Association): Thank you very much, Tamra.

Thank you, Mr. Chairman and committee members, for inviting us this afternoon.

On our way here Michael and I were chatting, and we recalled that both of us appeared as witnesses back in 1976 in front of one of the predecessors to this committee, which was chaired by the late Mark MacGuigan, which produced a very important report in the history of prison and parole law in Canada, the 1977 parliamentary subcommittee report. Michael appeared in Vancouver.

You were six then? So were we.

If I could just refer you to pages 9 and 10 of our brief, you'll see some excerpts from that report:

There is a great deal of irony in the fact that imprisonment—the ultimate product of our system of criminal justice—itself epitomises injustice. We have in mind the general absence within penitentiaries of a system of justice that protects the victim as well as punishes the transgressor; a system of justice that provides a rational basis for order in the community—including a prison community—according to decent standards and rules known in advance; a system of justice that is manifested by fair and impartial procedures that are strictly observed; a system of justice that proceeds from rules that cannot be avoided at will; a system of justice to which all are subject without fear or favour.

That was the predecessor of this committee speaking in 1977.

In 1979 the Supreme Court of Canada recognized the obligation of penitentiary decision-makers to act fairly. In 1982 the Canadian Parliament and other legislatures in Canada entrenched the Charter of Rights and Freedoms in our Constitution.

• 1650

Starting in the mid-1980s within the Solicitor General's office there was a process known as the Correctional Law Review process. Our committee started working at the same time and produced a report in 1988 to feed into that process. At the time, you could distil three themes from that 1988 report, which was entitled “Justice Behind the Walls”. Penitentiary and parole decision-making ought to be fair decision-making. Compliance with the legal framework is essential. Third, there was an abundant need for external scrutiny.

Now, regardless of your attitude toward people who are labelled as criminals within Canada, I think all would agree that public institutions ought to be run fairly, humanely, and lawfully. We participated in the Correctional Law Review process, and in fact—I'm sure Michael can do the same thing—I can look at parts of the statute and see little phrases that I conjured up. There they are in the statute.

Unfortunately, at the very last minute, before it was made law, operational imperatives came into play. In a number of areas where internal discretion had been structured, the internal discretion was opened up to ensure, I suppose, that those who run the operations side of corrections had a freer hand. This caused us enormous concern at the time. We were concerned that there still was no adequate avenue of external scrutiny. We were concerned that the structured discretion that we felt was essential had not been achieved. We were concerned that the system would lack the frankness and integrity we thought would be in the 1992 act.

When we look back five years, we see our concerns regrettably have proven to be true. You see this in the Arbour commission report of 1995 with respect to the events at the Prison for Women in 1994. The culture of corrections in Canada is not one that is respectful of the rule of law.

Rather than examining a number of issues we've addressed in our brief, we'd like to concentrate on one specific internal issue that we think is reflective of the nature of the penitentiary regime in Canada and reflective of the need for independent adjudication. My colleague, Professor Jackson, in a minute is going to speak about the segregation issue and how it generated the 1994 problems at the Prison for Women and how the government has responded to it since that time.

Later, if you have some questions, we can go back and talk about the parole process. It is addressed in our brief. It's our view that the current board finds itself unable to exercise its statutory mandate, and we can talk about that if there are any specific questions. But to avoid taking up all of our time I'd like to turn to my colleague.

The Chairman: Thank you, Mr. Manson.

Prof. Michael Jackson (Lawyer, Committee on Imprisonment and Release, Canadian Bar Association): Thank you, Mr. Chairman and members of the committee.

In “Justice Behind the Walls”, the Canadian Bar Association's 1988 report, which was our contribution toward the process that evolved into the Corrections and Conditional Release Act, one of the principal—in fact I think it's fair to say the overarching—recommendations we made was that there should be a process of independent adjudication and outside scrutiny of decisions that affected the rights and residual liberties of prisoners, to ensure that the rule of law ran between and behind prison walls.

That was something the parliamentary committee in 1977 had said was the essential prerequisite for justice for all Canadians, including prisoners. It was something that secured the imprimatur of the Supreme Court of Canada in 1977. It was particularly in the area of administrative segregation that this recommendation was seen as being most critical.

The parliamentary committee in 1977 had been sufficiently persuaded of the need for independent adjudication in disciplinary cases to require that the penitentiary system appoint independent chairpersons to deal with the discipline of prisoners.

• 1655

Mr. Gouk's concerns about there being consequences for misconduct are something CSC takes seriously. It has a discipline system. The idea was that this system, because it could and did result in prisoners being sent to solitary confinement and segregation and significant loss of their liberties...there should be someone other than the warden or his delegates who looked at the evidence, evaluated the evidence against the charge, and rendered sentence. That was done.

What was left undone was the need for independent adjudication in administrative segregation. Under the pre-CCRA, and now under the CCRA, a prisoner can be placed in segregation on very broad criteria by the warden without the need for independent review. That was something about which the parliamentary committee in 1977 said there may be a need for independent adjudication, but CSC should be given the chance to reform itself, to develop its own procedures to ensure compliance with the law. That ability of CSC to ensure its own compliance, its own systems of accountability, has been put to the test again and again over the years since then and has always come up wanting.

We recommended as the Canadian Bar Association that the CCRA undergird the importance of complying with the rule of law, of ensuring that the rights of prisoners were respected, to ensure that justice was a personal right of all Canadians, that there be a system of independent adjudication for administrative segregation. Remember, when a prisoner is placed in administrative segregation, he or she may be there for weeks, for months, and in some cases for years. It is the most intrusive, the most invasive, the most massive impact upon the rights of any Canadian in Canada.

The CCRA did not include a process of independent adjudication for administrative segregation. Parliamentarians at that point were assured by the Correctional Service of Canada and by the commissioner that the provisions in the CCRA in relation to administrative segregation, the processes mandated in there for administrative review by CSC, were sufficient and would in fact ensure that the abuses of history would not be carried into the 1990s.

The best evidence and the litmus test of how well the CCRA has in fact secured conformity to the law is the Arbour report itself. The Arbour report is in danger of becoming a footnote to history. As I understand, it is no longer in print, and yet, as I say on page 16 of our submission, the Arbour report is a critical document in the history of Canadian corrections, exposing correctional practices and attitudes beyond the narrow and little-publicized view provided by individual judicial challenges by prisoners. In many respects, the report provides for the 1990s what the report of the parliamentary committee did for the 1970s. The findings of the Arbour report measure how far the correctional system has or has not progressed in bringing its operations into compliance with two of the fundamental principles contained in the parliamentary committee report, that “The Rule of Law must prevail inside Canadian penitentiaries” and “Justice for inmates is a personal right and also an essential condition of their socialization and personal reformation.”

As members no doubt are aware, the Arbour report found systemic violations of the law in every single avenue and every single process it inquired into—strip searching, internal cavity searching, transfers, grievances, and administrative segregation. It was in administrative segregation that Madam Justice Arbour had the most severe criticism to make of the Correctional Service of Canada as emblematic of a correctional system where the rule of law often gave way to operational reality, to administrative expediency.

One of the recommendations made by Madam Justice Arbour was that CSC, because it could not be trusted on its track record to ensure compliance with the CCRA—and she made the point that the CCRA was not an alien document; it wasn't as if someone imposed the CCRA on the Correctional Service of Canada. It was a document that its own officials participated in drafting, creating, and bringing to life. It was not something imposed on them by the courts or by the Canadian Bar Association. So they should be able to ensure compliance with it.

• 1700

She found they had not ensured compliance with it, and she recommended that administrative segregation had to be put under independent adjudication, either by the judges themselves or by some independent adjudicator, who could be someone other than a judge, but it was imperative that it not be the warden; it had to be someone outside of the system. The warden certainly can make the initial decision, but at some point in the process, the review of that decision, whether it's after 5 days or 14 days or 30 days, had to be done by someone who could bring to bear an independence on the evidence and the case for segregation. That was in 1996.

Facing the suggestion by many of his staff that, well, it's the Prison for Women, it's isolated in time and place, and it's not reflective of CSC writ large across the country, the commissioner of corrections appointed a task force to visit every single segregation unit in this country in the federal penitentiaries to talk to staff about their understanding of the law and to take measures to ensure that the Arbour incident never, ever happened again in any segregation unit under federal jurisdiction.

As one of three external members, I was asked to participate in that task force. Other members were Professor Monture-Angus, a Mohawk professor of law from the University of Saskatchewan, and Mr. Todd Sloan, who you may hear from, who is counsel to the correctional facility we investigated. We were asked to participate as full voting members, as it were, of the task force to conduct this national review, and we did.

One of the central findings of that task force was that what Madam Justice Arbour found at the Prison for Women existed in some degree, and in some cases to a considerable degree, in every institution.

We found that there was a casual attitude towards the law. It wasn't that CSC went out of its way to violate the law, but when there was a conflict between the law...and often the law was not understood, but even when it was understood, an operational reality took precedence. There was a customary law that superseded the CCRA.

There was a vigorous debate within the task force about how to remedy that, how to ensure what the commissioner had set the task force up to assure, that the Prison for Women would never, ever happen again. No commissioner would ever be shamed into resigning and held to account by the Canadian public for what happened at the Prison for Women.

There were two main lines of reform recommended by the task force, and there was a very vigorous debate within the task force between those members who worked within CSC and those, like myself, who were outside, external observers. The two paths of critical reform were that CSC should take measures to reform itself. It should develop better legal training for staff. It should develop an understanding of the law for every staff member, from the line to the warden. It should improve communication and ensure that people are knowledgeable about the legal requirements, that they not simply compete with operational reality but they have to be operational reality. That was one line of reform.

The second line of reform was that there had to be independent adjudication. Because some internal members of CSC were skeptical...you're a lawyer; of course you'd think lawyers would do a better job. That relates to Mr. Wappel's concern. Are lawyers the saviours of the world? Put a lawyer in place and you've solved all your problems. Ask any professional—and I'm sure parliamentarians are probably no exception—and they'll tell you that if they're a social worker, just have more of them do it and you'll solve your problems. Lawyers aren't immune to that, and I'm certainly not above recommending that people like myself can do better than people who are not like myself.

• 1705

There are real limitations, of course, to that report, and because CSC members of the task force questioned whether in fact legally trained people would do a better job...would they understand the dynamics of prison, the difficulties of taking into account institutional evidence from informants? Because there were concerns about that, the whole task force, including regional and national representatives, wardens and line staff, after an exhaustive debate, made the point that there should be an experiment in independent adjudication, that two institutions across the country should be selected and independent adjudication should be experimented with in that context to evaluate whether or not what the Canadian Bar Association had said in 1988 and what Madam Justice Arbour had said in 1996 was correct, that independent adjudication would bring a measure of fairness that CSC itself had not brought to the CCRA.

We also recommended, knowing that this review was taking place, that the experiment be fast-tracked so that you today sitting here could look at the experiment and judge for yourself whether this promotes fairness and conformity with the law better than what's in the law at the moment.

That was the recommendation made to the commissioner in 1997. Shortly after, the commissioner received the report of Max Yalden, the former Chief Commissioner of the Canadian Human Rights Commission, who was asked to look at human rights within CSC and ways to ensure respect for the international covenants and Canadian documents upholding human rights. Mr. Yalden endorsed the recommendation of the task force on segregation that there be an experiment with independent adjudication.

So the commissioner had Madam Justice Arbour's unequivocal recommendation—not that there be an experiment but that the law be changed. It also had his own task force that there be an experiment and its endorsement by the senior human rights specialist in this country. What happened? The commissioner said “I'm not going to do the experiment; I'll simply enhance the existing procedures because I am satisfied that we can do better.”

That's where it sits. An experiment has not taken place, you're not in the position to evaluate it, and the Canadian Bar Association's position is that administrative segregation and the legality and justice of that process is the litmus test of legality of carceral authority in Canada. Independent adjudication is an absolutely fundamental part of that.

There is no experiment to look at. The Canadian Bar Association's position is, we don't need an experiment. The CCRA should be amended to provide for independent adjudication at some point in the process, without further ado, to ensure the promise of the parliamentary committee, the promise of the CCRA for a just and effective correctional system, is made good.

The Chairman: Thank you, Professor Jackson. We'll have to go to questions now.

Mr. Gouk, you have seven minutes.

Mr. Jim Gouk: Thank you, Mr. Chairman, and thank you all for presenting the information you have. I haven't had a chance to read it all yet, other than skipping through it as you were doing the rest of your presentation.

One of the things you mentioned was the violation of the rights of prisoners, and you mentioned such things as transfers and strip searches. Could you elaborate on that?

Are you suggesting, first of all, that prisoners should not be subjected to strip searches, and likewise, when you talk in terms of transfers, are you in essence saying that prison officials should not have the right to transfer prisoners where they think they should be, and that it should be more up to prisoners where they want to be incarcerated?

Could you keep this fairly short, please, because I do have some other questions as well.

Mr. Michael Jackson: No, we're not saying the institution should not have the ability to transfer prisoners from one institution to another. What we're saying is that has to be underpinned with a fair process. Our argument and our evidence, based upon our own personal practices and other practitioners in this field, is that the process is not fair as reflected in the CCRA, again because there is no independent adjudication.

• 1710

Mr. Jim Gouk: In other words, you're saying if a prisoner is going to be transferred somewhere and he doesn't want to be there, he should have the right to appeal that transfer.

Mr. Michael Jackson: Yes, particularly in the case of involuntary transfers. I'm not going to go into it, but I'm in the middle of a case in which a prisoner stands to lose five years of work in programs because of an allegation that he was involved in a stabbing at William Head Institution. There has been a police investigation. The police have told me personally they do not think my client is involved. However, the warden, relying upon his sources, intends to transfer this man back to maximum security. My argument is—and I'm convinced that were I able to make the case before any one of you looking at this evidence, you would agree—there is no case for transfer. But I'm not able to do that.

Mr. Jim Gouk: Okay. I was misinterpreting transfer as being from one location to another as opposed to one level to another. Do you have the same concerns about transfer from one location to another location?

Mr. Michael Jackson: Well, typically transfers from one location to another tend to be upward or at the maximum level. And we do have the same concerns about transfers, say from a maximum security prison like the one you went to last week in Kent, to Port-Cartier, 3,000 miles away.

Mr. Jim Gouk: What if you have a dozen Hell's Angels in one province—in Quebec say—and prison officials decide they do not want to have these people together as a group inside a single prison? They decide to split them up and send them to various prisons. Is that in itself a problem, or should they have the same rights that you've been suggesting?

Mr. Michael Jackson: Well, our proposals would not make it impossible to do that, but they would ensure that decision was made with full regard to the impact that decision might have on other principles in the CCRA, where the legislation commits itself to family reintegration and maintaining contact with community. That may be overridden in a particular case, but we would want a process by which all of those factors are balanced, not one given precedence over the other.

Mr. Jim Gouk: What is your objection if strip searches come in?

Mr. Michael Jackson: Our objections to strip searches... We don't deal with this specifically in the submission, but you heard an excellent submission from Mr. Morin. You've heard the Morin case thrown around a few times this afternoon. It was Mr. Morin who addressed you—the bearded gentleman at Kent Institution who told you he looked like a hippy, but he wasn't a drug addict. His objections—and they're ones the bar supports—are to the routine strip searching of prisoners involving their bending over to allow a visual inspection of their rectum, which is so invasive and so dignity depriving that it should not be a routine procedure. It should be something that can be done only for cause. Mr. Morin was not putting you on when he said that legally he could have been asked to submit to a strip search after he was in your presence. He wasn't, but he could have been.

Mr. Jim Gouk: In your mind, is the parole process a right of prisoners or a correctional tool?

Mr. Michael Jackson: Why don't you answer that.

Mr. Allan Manson: I think the question you ask is a large question and—

Mr. Jim Gouk: I'm looking for a small answer.

Mr. Allan Manson: Well, you can't find a small answer. In 1987 the sentencing commission issued a report recommending the abolition of parole. The Canadian Bar Association response was that parole ought not to be abolished, but there should be a presumptive parole regime. This is not what we see in part II of the CCRA. It may well be that now 12 years down the road, given that we now have accelerated parole, detention provisions, and a dramatic reduction in parole granting—both grossly and in the rate of parole granting—that it's time to revisit the essential elements of the Canadian sentencing system and ask some hard questions about the role of supervision, whether by discretionary release or some other kind of release mechanism. Maybe it's time to have that large-scale inquiry. I'm not sure it can be done in this brief context of the CCRA review.

Mr. Jim Gouk: I have one last question.

Mr. Allan Manson: We certainly believe that reintegration is enhanced by state-provided reintegrative assistance. How you do that is another matter. You don't necessarily need a parole system to achieve that.

Mr. Jim Gouk: I have one last general question.

• 1715

The Chairman: Is it a short general question?

Mr. Jim Gouk: The question will be short, but I can't control the answer.

In your opinion, should prisoners have the same rights as law-abiding citizens outside of prisons, with the exception of the freedom of movement?

Mr. Allan Manson: The Supreme Court of Canada has confirmed—

Mr. Jim Gouk: I want your opinion, not the Supreme Court's.

Mr. Allan Manson: I certainly agree with the Supreme Court of Canada. People in prison are entitled to the same civil liberties and other rights, save those which are expressly removed by statute or, by implication, by reason of their confinement. That's certainly the position of the Canadian Bar Association.

Mr. Michael Jackson: Mr. Gouk, if I may, I would refer you to page 19 of our submission, and I think I would suggest this by way of response to a number of questions I've heard you ask—and they're very perceptive questions. I think Madam Justice Arbour attempted to grapple with this well-conceived and very common sense about why prisoners should have rights. Have they not forfeited the right to have rights? I think the boldface part of Madam Justice Arbour's passage at the bottom of the page is one that is well commended to this committee:

One must resist the temptation to trivialize the infringement of prisoners' rights as either an insignificant infringement of rights or as an infringement of the rights of people who do not deserve any better. When a right has been granted by law, it is no less important that such a right be respected because the person entitled to it is a prisoner. Indeed, it is almost always more important that the vigorous enforcement of rights be effective in the cases where the right is the most meaningful.

It is the Canadian Bar Association's position that the importance of rights and their vindication is most important in the places most invisible to the Canadian public.

The Chairman: Thank you.

[Translation]

Mr. Marceau.

Mr. Richard Marceau: I thank you for your presentation. I found it very interesting. It's interesting that you are testifying here just after the Barreau du Québec. Does the Canadian Bar Association share the views of the lawyers from the Barreau du Québec?

[English]

Mr. Allan Manson: We certainly agree with their comments about problems with the internal grievance system. It doesn't work. It doesn't provide the kind of redress for complaints that a controlled environment like the penitentiary system requires.

With respect to some of their other remarks—for example, their concerns about accelerated parole—my personal view is that I don't share those concerns.

[Translation]

Mr. Richard Marceau: That's mainly what I wanted to know. It's your personal view. Mr. Jackson and Mr. Thomson, do you agree with Mr. Manson regarding the accelerated parole review?

[English]

Mr. Michael Jackson: The Canadian Bar Association hasn't taken a formal position on this. It is certainly my view that accelerated parole serves a purpose, but I have some problems with any reviews that are done on paper alone. I share the Quebec bar's concern about the independence of the National Parole Board.

In addition to the kinds of criteria that are in the CCRA about diversity—I share the view of those criteria as being an important feature—I certainly would like to see that there be other criteria to ensure that parole board members, transparently, are qualified and have the kinds of confidence they need to have, to have support for the work they do with all the risks involved in making the wrong decisions. It seems to me that it's as important a decision as any that public officials make, and I would like to see the kinds of criteria that go along with those for Superior Court judges. That's not necessarily to say that they be qualified to be Superior Court judges by reference to legal training, but that we have people who have the confidence of the Canadian public to make decisions that will impact the Canadian public.

• 1720

Mr. Allan Manson: Could I just add something to that? With respect to independence, I'm not sure the issue is so much a structural one—in other words, that it's a function of the appointment process—as much as it's a function of the transparency that Michael was talking about. You need people who understand what it means to exercise a statutory mandate and who have the confidence and ability to carry out that statutory mandate. I don't think they have to be lawyers to do that, by any means.

One problem we see all across the country is the diminution of legal aid for prisoners as a result. We listen to the tapes of parole hearings at which lawyers are not present. I'm not saying lawyers need to be present, but I firmly believe the parole board acts very differently when there's a lawyer there than it does if no one is there. If no one is there, the board runs roughshod all over the prisoner, and that's not right. Board members ought to be respectful of their statutory mandate, they ought to understand it, and they ought to be providing fair decision-making processes for every person they deal with. That is not the current situation.

[Translation]

Mr. Richard Marceau: I skimmed through your brief. It's always the same problem: we don't have time to read the briefs, before the meeting. We only just received it and I was trying to read it while you were going ahead with your presentation. I was somewhat surprised to read your recommendation number 6 and I'd like you to explain it to me. It reads as follows:

...that a prisoner's assertion can, if considered plausible and credible, be accepted as truth of its contents without the need for corroboration.

What does that mean?

[English]

Mr. Allan Manson: Without the need for corroboration?

[Translation]

Mr. Richard Marceau: Yes.

[English]

Mr. Allan Manson: Let me explain that very briefly.

I think it goes back to the comments I made a minute ago about the absence of legal aid. You need the opportunity for prisoners—not always, but sometimes—to take the board to court, to have the court supervise the function of the board. Cases that go to the Federal Court, Trial Division, are very rare. If we talk about the limiting of habeas corpus, it's even rarer.

This comes from a particular case and a particular misunderstanding of comments in Mooring, which is really all about whether or not the National Parole Board is a court of competent jurisdiction for the purposes of section 24 of the charter and whether or not it can exclude evidence. Mr. Justice Sopinka talks about the difference between the parole hearing process and the courts, and he uses the phrase that courts deal with admissibility and they reject evidence for various reasons, including charter reasons. On the other hand, the board deals with information.

I heard a tape of a hearing in which that statement was completely misinterpreted by a bunch of board members. This was a case in which it was alleged that the prisoner was using an alias. The prisoner tried to explain that when he first went into the penitentiary, a clerical error was made and his name was typed wrong. They had the wrong spelling for his name, and he tried to say that he could show them the proper spelling if he had his naturalization papers and his birth certificate. He was not using an alias; he was using the name his parents gave him x years ago.

The board members said to this prisoner, sorry, if he had the documents, they could look at them. They told him they could only look at information, that they couldn't hear evidence, so they couldn't take what he was saying to them. But when you read recommendation number 6, it seems this ought to be superfluous. Surely an agency like the parole board ought to be able to listen to someone—whether it's you, Mr. MacKay or Mr. Jackson—and say it accepts that or doesn't accept that. This board said it couldn't hear it.

So our point again is simply that if there isn't going to be more external scrutiny and more opportunity for the courts to supervise the board, we have to structure the board processes even to include a provision that says to board members that they must listen to the prisoner and accept or reject what the prisoner says.

[Translation]

Mr. Richard Marceau: On reading it, I find it much broader than the somewhat ridiculous example that you gave me. I'm not saying that what you told me is ridiculous, but you really have to be lacking in judgment to maintain that an alias was used, and so on. This shows a lack of judgment. When I read this, it strikes me as attempting to kill a fly with a nuclear bomb.

• 1725

[English]

Mr. Allan Manson: I think it's a simple statement, but the point is that when courts examine what boards do, what inferior tribunals do, and when they ask themselves about the application of the duty of fairness or natural justice, they look to a variety of indicators: the nature of the interests at stake; the internal rules of the board or agency; and the way Parliament has delegated powers and processes to this agency. The CCRA provides no indication of how a board hearing ought to be conducted. Our position is that it needs to have that structure even for something as simple as this, just to make sure they get it right.

The Chairman: Thank you, Mr. Manson.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chairman.

Gentlemen, I thank you very much for your presentation. It has been very insightful. As Mr. Marceau and others have said, I haven't had a chance to digest all of the material you have provided, but preliminary indications are that it's going to be very thought-provoking and useful as well.

I get the feeling that throughout all of your recommendations and your presentation, you're strongly advocating a greater amount of due process within the system itself, within CSC and the parole board. Greater accountability and independence, I guess, go hand in hand with that.

I look at your first recommendation:

The Canadian Bar Association recommends that a provision recognizing a breach of a prisoner's rights by a reduction in sentence...

I can't help but feel this is something that is going to be very difficult for the public to accept when someone considers that the victim in the first instance is completely cut out of the picture here. In essence, you're rewarding the inmate for having become a victim within the system. You are therefore reducing the inmate's sentence and are putting that person out earlier at the expense of the public, and to some extent directly at the expense of the original victim for whom the prisoner is serving a debt to society. How do you respond to that complaint?

Mr. Michael Jackson: I think the best way is to carefully track Madam Justice Arbour's reasons for that. Essentially, she said this. When a judge says to a man or a woman that he or she is sentencing that person to three years in prison for the crime he or she has committed, based upon the gravity of the offence, the person's record, and all the other sentencing principles, it's three years of lawfully imposed imprisonment. Madam Justice Arbour was pointing to a situation in which, during the course of that lawful imprisonment, it becomes unlawful. That does not mean it becomes unlawful in a trivial way—for five days you didn't get the television programs you wanted, or you didn't get the food you like—but it does so in such a way that you have a violation of the law that changes, challenges, and undermines the integrity of the sentence. When you have that kind of breach in the law, such as what happened at the Prison for Women, where women were subject to violent and degrading procedures and were kept in segregation for nine months—not nine days, nine months—this would be a remedy that would pay back to those women what had been taken from them, that being a legal sentence. In that way, it would do a measure of justice.

So it would not be for every violation of the law; it would be for gross irregularities. At that point, I think the reduction in sentence would be not a reward to the prisoner, but a balancing of the fact that the sentence has become unlawful and in some cases unconstitutional. As Madam Justice Arbour said, it's not as if it's a dividend to the prisoner. It's actually to ensure the integrity of the system of justice.

Mr. Peter MacKay: But it is in fact a dividend. Further to that, it's also an admonishment to the system for not behaving as it should. And to take it back a step, who makes that decision?

• 1730

I think your recommendation number 1 would be premature without first having set up a system of having this independent review you speak of that takes it out of the hands of the individual warden or the commissioner.

There was another comment I wanted to reflect on. Mr. Manson, I believe you referred to the fact that you believe there's a reduction of parole granting in this country. I've been looking at figures very recently that suggest that not only is this not true, but there are in fact more prisoners being released and it is part of CSC's overall plan. There are fewer revocations of parole, and within the system it is the expressed view of the commissioner that 50% of the inmate population should be back on the street by the year 2000.

So these figures seem to be running quite contrary to what you're telling us.

Mr. Allan Manson: I think with the exception of 1996-97, where the grant rate went up, the grant rate has gone progressively down since the beginning of the CCRA. But in terms of the growth rates, I can give you some figures: in 1992-93 there were 2,575 full parole grants; 2,598 in 1993-4; and then in the last full year for which there are statistics, 1996-97, there were 1,707 full parole grants. So they are diminishing enormously.

At the same time, at the other end we have the detention process by which a number of people who ordinarily would be released at statutory release date are held to warrant expiry. That's creeping up to almost 500 per year.

Mr. Peter MacKay: I think you'll find more recent statistics—and statistics can be used for all sorts of reasons, as you can appreciate—from June of this past year, indicate that parole grant is up and revocations are down.

Mr. Allan Manson: The grant rate, as I said, went down from 1992 to 1995 and went up in 1996-97, but these are gross numbers. So fewer people are applying. They're applying later in their sentence. Fewer people are being released. This is why the prison population has increased over the past five or six years. It's fluctuated over the past year, but now it's up to almost 15,000, while admissions are down. What explains that? The parole process is no longer, as it was in the mid-1980s, a release mechanism. It is now a detention mechanism.

Mr. Peter MacKay: So you believe it's almost a philosophic approach. Further to that, do you embrace the suggestion from the CSC commissioner that we should be striving towards having 50% of the current inmate population back on the street by the year 2000, which would ignore or put to one side the current statutory criteria that have to be met?

Mr. Allan Manson: I think it's unfortunate when the issue of release to the street becomes some kind of functional expedient or the product of some numerical formula. Surely then it has lost its principal premise. I don't understand where the 50% figure comes from, but by the same token there are jurisdictions in the world where, whenever the system gets overcrowded, someone in government tells the releasing authority, release some more prisoners, there are too many. That's inherently wrong.

Mr. Peter MacKay: I'll give you a document, and I'm not going to dwell on it.

The Chairman: Last question, Mr. MacKay.

Mr. Peter MacKay: It is specifically referenced in Commissioner Ingstrup's report, which came out in June 1998, that to reach a 50-50 split by the year 2000 will be a professional challenge but not at all unattainable. That's a statement, and I agree with what you're saying. If you're going to put an arbitrary figure, 50% or 60%, it diminishes the individual approach that has to be taken here. It takes away from the independent decisions that have to be made and it also diminishes the accountability.

Mr. Allan Manson: We've talked about accelerated parole, and according to the latest statistics I've looked at, 60% of full parole grants have been accelerated parole. That's taking up a large part of the process. I'm not opposed to that, but it's a dramatic change in the system we looked at 10 or 12 years ago. Of those accelerated paroles, my recollection is that about 85% succeed and about 15% are rejected. That may have something to do with it. Without having Mr. Ingstrup to explain the 50-50 rationale, it's hard for me to comment.

• 1735

The Chairman: I think we will have him here later on, so we'll be able to deal with it at that time.

Mr. Wappel.

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

My comments are primarily addressed to Professor Jackson, and my questions too, but I want to address myself to the Solicitor General's officials.

I would suggest that you make a transcript of Professor Jackson's remarks and deliver them to the commissioner, because I want to assure you, Professor Jackson, that I will question him closely on the comments you made with respect to the commission that was appointed and the recommendations that were made, and the failure to follow those recommendations.

We were at Kent, as you know because you were there. I understand there's an interim standing order on administrative segregation effective February 1999 at that institution. Have you seen it, and if you have seen it, do you have any comments on it?

Mr. Michael Jackson: I saw a draft of it. I don't know if I've seen the final version of it. I can comment. Did you have a supplementary question too?

Mr. Tom Wappel: Do you expect to be shown it?

Mr. Michael Jackson: Yes.

Mr. Tom Wappel: If there's anything interesting there, pro, con, or neutral, I think the committee would be interested in your comments on that standing order with respect to Kent, because we went there.

It was very interesting to hear the Canadian Bar Association go back in time and talk about history. I'd like to go back in time, but not quite as far. I'd like to go back to March 26, 1992, when the Canadian Bar Association was here the last time. Indeed, Professor Jackson, you were here.

At that time, you said this—and remember we're in a review—and I admit there are a few dots between the sentences, but I'll try to be fair in terms of summarizing what you said.

Mr. Allan Manson: Does the Evidence Act apply here?

Mr. Tom Wappel: No.

Mr. Allan Manson: Do you have to bring all the background to the attention of the witness?

Mr. Tom Wappel: This is under your recommendation 6.

The Chairman: This is information.

Mr. Tom Wappel: Yes. “It”, that is to say the bill, is:

...an improvement... Moving from pure administrative directives to regulations, that's an improvement. ...an incremental piece of reform.

This will not be seen as, well, that's an interim step; we'll revisit this in five years or ten years. ...this piece of legislation in terms of corrections and parole will be the basis upon which the next generation of prisoners and judges and victims will have to live, and to that extent, it's our view that the legislation does very little more than reflect the status quo. ... It is not the kind of blueprint for reform we'd like to see.

...

...I don't have a lot of confidence in legislative revisiting. ...legislative revisiting seems not to be terribly productive of fundamental change.

My question is relatively simple, and it is, given that we've had five years of the act, do you still feel the same way?

Mr. Michael Jackson: Yes, I do. It's not a conclusion I come to readily. I would have hoped I could have been proven wrong.

Mr. Tom Wappel: All right.

I have two final questions, Mr. Chairman.

Mr. Conroy appeared with you at that time. I presume that's the same Mr. Conroy we heard from in Vancouver. He said, and he was the chair at that time—

Mr. Michael Jackson: He still is the chair.

Mr. Tom Wappel: In fact, lo and behold, I asked this question: “...is it your position that...any...disciplinary offence that is in fact a breach of the Criminal Code should not be in clause 40?” That's the disciplinary offences. Mr. Conroy answered, “The policy of the Canadian Bar, if my memory serves me correctly, is to that effect.” I believe he was saying the same thing when he appeared last Thursday.

Can you tell us whether that is in fact the position of the Canadian Bar Association, namely that if it's an offence under the Criminal Code it should not be listed in clause 40? Is that still the position of the bar?

Mr. Michael Jackson: I think that was Mr. Conroy's position then and as I heard him express it last Thursday to you in Vancouver, and it is the bar's position, but it's premised upon this very important underpinning, that because legal aid is available in the criminal justice process if you are charged criminally, if something is sufficiently serious that it could be made a criminal charge, it should be, rather than it being made a disciplinary charge where a prisoner will stand before a tribunal and be convicted in the absence of legal representation. This is the basis of that position.

Mr. Tom Wappel: I think that's a very good summation. I agree with you. That's how I heard it as well.

• 1740

Finally, he also said on behalf of the Canadian Bar Association:

...you should completely open up parole hearings and allow victims, their representatives, and the media into parole hearings. ... All kinds of checks and balances can be put in place to prevent problems that may occur in terms of privacy and so on.

Is it currently the position of the Canadian Bar Association to make parole hearings wide open?

Mr. Michael Jackson: What we had in mind was the kind of process the CCRA has put in place, where you have the possibility of public participation and observers, subject to a balancing of the rights of the person whose primary interest is being addressed at that hearing.

We haven't specifically addressed that in our submission, but I think we have found that the existing process works relatively well and gives victims an opportunity to know that their interests are not being disregarded. It also ensures that decisions are made based upon now rather than then.

Mr. Tom Wappel: Thank you very much.

Mr. Michael Jackson: I have had a rather lengthy exchange of correspondence with the commissioner on this issue of independent adjudication, and I'd be quite happy to share that.

The Chairman: We'd be very pleased to receive that.

Thank you, Professor Jackson.

There's one minute left in this round. Mr. Myers do you have a brief question, or do you want to come back?

Mr. Lynn Myers (Waterloo—Wellington, Lib.): I'll come back.

The Chairman: Okay. Second round, for maybe three minutes, Mr. Gouk.

Mr. Jim Gouk: I really need to go through your submission and get more out of it.

I'd like to go back to this whole concept of prisoners' rights. Your first point about the reduction in sentence I find rather astounding. I don't see any way that any political person could ever go to the public and sell that one.

There have to be ramifications for those who do something wrong in prison, albeit maybe from the corrections side, if there is a serious violation of someone's rights. But I don't see how you can do that by turning loose a convicted prisoner who, through circumstances—luck, you might almost say—happens to have had someone do something illegal against them. I frankly find that astounding.

When we talk in terms of rights of prisoners—and you're saying basically they have a right to everything except those things taken away from them, such as the freedom of movement, obviously, because they're to be incarcerated—where do you draw that fine line? They get $5 a day. Should they be subject to the minimum wage act if they're required to work? Should they get Canada Pension Plan contributions made for them? These are people who had a choice to follow the laws of this country or violate them. If they didn't want to be incarcerated, with all the ramifications of that, they should have followed the law. They chose not to.

Yes, there should be humane and helpful treatment of prisoners. Certainly, as a result of being on this subcommittee and travelling, I'm much more predisposed toward earlier release as part of a rehabilitation process. But frankly, I think prisoners maybe have too many automatic rights—not too many rights, but too many automatic rights—and too many things are given without consequences or obligation.

Perhaps they lose the value of those things when they don't do something to earn them. Maybe we could make the system work better, and making the system work better would mean rehabilitation and earlier release with less recidivism, which is in the prisoner's own best interest.

Are we not maybe potentially working against the very things you're working toward—the ultimate rights of prisoners, so we end up at the end of the day with a truly rehabilitated person serving society better—in trying to shortcut that process?

The Chairman: That was a two-minute-and-forty-five-second question in a three-minute round.

Mr. Jim Gouk: I thought I had three minutes for the question.

The Chairman: Good luck.

Mr. Michael Jackson: I teach a course at UBC law school on prisoners' rights, and a few years ago an RCMP officer who was at the law school took my seminar. I went around the class and asked why people were taking this seminar. This Mountie said to me “Because I want to see you show me why prisoners should have rights. I don't believe you can do it.” It was a challenge very similar to the one you've thrown out.

• 1745

I have interviewed, at Kent Institution, a lot of the population, and again and again I have interviewed people like the man who appeared before you last week, Daryl Bates, who had been strip searched by the emergency response team when he refused to bend over and has essentially been locked up since he was 11. His whole life has been one of resisting authority and having authority say to him, “You are worthless. You don't deserve any better than the way we're going to treat you.” It's a self-perpetuating system.

We give people in prison rights they did not recognize in us when they were in society, to try to demonstrate to them that obedience to the law and recognizing the rights of others is the way to live within society. We don't do that by taking away those rights in prison. It is not a lesson that is well calculated to inculcate the kinds of values and behaviour we want them to live with when they come out.

We have to do better than they have done by us. We have to live up to a standard they have not lived up to. In a sense it's our commitment to the rule of law; it's our commitment to a society that respects even those who have violated the rights the rest of us have. It is a philosophical question.

The Chairman: Mr. Manson, you have a brief comment.

Mr. Allan Manson: I have two points. First, prisons are a controlled environment. Whatever may be permitted on a Monday can be taken away on a Tuesday. Watch the tape from the Prison for Women from 1994. That's the most graphic example of that.

Secondly, look at who is in prison. Yes, there are some bad guys in prison, there are some evil people in prison, but for the most part you're looking at representatives of the most disadvantaged, dysfunctional, poor, abused backgrounds in our country. I just would not accept your proposition, Mr. Gouk.

The Chairman: Thank you, Mr. Manson.

Mr. Myers.

Mr. Lynn Myers: Thank you Mr. Chairman.

First of all, thank you for the very valuable presentation. I want to go back to grievance procedures. I think I heard you say you agree with the Quebec delegation that appeared prior to you. I notice on page 17 you say some of Madam Justice Arbour's sharpest and harshest criticism was saved for some of the grievance procedures—things like them not being addressed, urgent needs not being met, the point often being missed, and other things.

In your sense of what you see happening today, do you think it's better or worse than when she was speaking? Second, what is the best way to correct what seems to be a terrible situation?

Mr. Michael Jackson: That's a very good question.

The CBA, in its recommendations to this committee, which Mr. Wappel alluded to, endorsed a model of the grievance process that the Correctional Law Review itself endorsed. I notice we have with us Ms. Paula Kingston, who is now with the Department of Justice, who was a member of the Correctional Law Review.

They recommended very strongly that the grievance system in the CCRA be a system in which you had the possibility of independent arbitration, so if a grievance were rejected, there would be the right to send it to an independent arbitrator whose decision would be binding, unless a federal court said the resolution would endanger the lives and safety of people in the prison or have enormous budgetary considerations that the commissioner simply could not respond to. That was the recommendation of the Correctional Law Review itself—the CSC secretariat's recommendation. It was rejected by CSC and Parliament.

We have reiterated that recommendation because the five years since the CCRA and the two years since the Arbour report have shown—and the correctional investigator's reports are the best evidence of this—that the system, for the reasons the Quebec bar gave, does not respond. As Madam Justice Arbour said, it seems if you acknowledge there's something wrong, you're admitting failure rather than saying “Yes, that's not a good way to resolve issues; let's do it better.” Independent arbitration doesn't mean every case will go out to an independent arbitrator.

• 1750

One of the great advantages of the Arbour remedy of reducing sentence in a case of egregious violation of the law, like the possibility of independent arbitration, is that if you know that exists, you are going to try mightily to ensure that you're never subject to that kind of remedy. You're going to do everything you can to have a fair resolution, knowing that if you reject a grievance without principle or unfairly, an independent arbitrator will look at this and say you're wrong.

Those ultimate remedies have an enormous gravitational effect on compliance with the law fairly and effectively within the system. It's not that every case goes to the outside body any more than every dispute in civil litigation goes to court.

Mr. Lynn Myers: Just very quickly, I have a supplementary question. Is there a danger, with the process you're advocating, that there would be an increase in frivolous and vexatious kinds of grievances and complaints?

Mr. Michael Jackson: I've sat in on grievance procedures. There is a provision within the regulations for a committee comprised of both prisoners and staff to review grievances and make a recommendation to the warden. I have been very impressed when prisoners sit on those committees that they are the first to reject frivolous grievances, because it is such a vital part of ensuring their rights are respected that they take very unkindly to prisoners who abuse it, who tie up scarce resources with silly complaints. The prisoners themselves recognize that abuse trivializes the importance of the serious grievances. So I'm not concerned that in fact there will be an increase in trivial grievances.

Mr. Lynn Myers: Thank you very much.

The Chairman: Thank you, Professor Jackson.

Mr. MacKay, did you have any further questions?

Mr. Peter MacKay: If I might, I have a follow-up question to that. A lot of the decisions, I think, that have to be made come down to resource allocation and prioritizing the treatment of prisoners as opposed to those on the street who have been the subject of the crime that led them to be incarcerated. By advocating a system that is going to require, obviously, a great deal more resources and appointment of independent adjudicators...it's going to call for more resource allocation. It's going to cause an effect in terms of the system needing more resources.

I guess as legislators it comes down to us to try to justify doing this. That, I think, is where it's going to become very tricky, as Mr. Gouk has indicated. When it comes to releasing a person early because of something that's happened to them inside while they're paying their debt, this is very troubling. It's tantamount to evidence that is often excluded in a court for a charter violation that leads to a person being, for lack of a better phrase, wrongfully acquitted because they've been afforded this piece of evidence being excluded for a violation.

It becomes a very esoteric and very philosophical debate, I think, in terms of trying to justify it in the public's mind. The question still comes back to how we, in essence, sell this. And we have to do this. This is the blunt reality. We have to sell this to the public as being palatable, something you should accept, and the greater good will be served by giving prisoners greater protection and greater rights. Even though they've been taken out of society and placed in an institution isolated from you, they still do enjoy the same expectation of rights, freedoms, aside from mobility, that you on the outside have, you non-offending public. How do we come across with that?

Mr. Allan Manson: If I could jump in, I don't think we should overstate the entitlements of persons in prison. The statement of the law that I gave you was that persons in prisons are entitled to all the civil rights of other members of the community save and except those that have been expressly removed by statute or removed by implication as a result of their confinement.

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In answer to your other question, I think we shouldn't sell the public short. I think, and I don't want to point any specific fingers, people in Ottawa have done a disservice in not generating a higher level of frankness and not generating greater public awareness about the criminal justice system, about penitentiaries.

Some of the studies that have been done, both in England by Hough and Walker and in Canada by Doob and Roberts, have shown a number of things. The public misperceives the level of violent crime. They think there is much more than there is. Second, the public believes that courts and parole decision-makers are much more lenient than they are.

Third, when members of the public are given more details and more information about real cases and the details of the law, they're much more attuned to the way the processes of the law are actually working. So I think there is a real obligation, whether it's the Solicitor General, Justice, Parliament, to generate a franker attitude about the criminal justice system.

Going back to the Arbour remedy, Michael and I were at a meeting—it must have been a year ago—where I gather the Solicitor General asked for an opinion from the Department of Justice. We were asked to participate in this discussion about the possible ways in which this kind of mechanism could be generated. I don't know what's happened to that discussion. You might want to ask the commissioner or the representatives of the Solicitor General when they come.

During that morning a group of us participated, and we were trying to make the argument that you could conjure up a judicial process with a threshold of egregious conduct almost on a par with what would render the service of the sentence cruel and unusual punishment. In the lead judgment of the Supreme Court of Canada in terms of what constitutes cruel and unusual punishment, Chief Justice Lamer said that even a three-month sentence could be cruel and unusual, depending on how it was required to be served. If you put someone in a dungeon, you can conceive that the effect of it could be characterized as cruel and unusual.

So we could imagine talking about violations that achieve that level of egregiousness. This would not be a common thing. Again, looking to the public response to the videotape at the Prison for Women, I don't think there was a soul in this country who saw that who wasn't shocked. That's the sort of activity I think Madam Justice Arbour was talking about. Yes, to some extent it would be a windfall for the prisoner involved, but it would be, as you put it, an admonition to the senior administrators: you cannot run a regime that disregards the law to that egregious extent.

The Chairman: Thank you, Mr. Manson.

Professor Jackson.

Mr. Michael Jackson: I am wondering if I could answer that question by giving the last word to your colleagues in Parliament. The MacGuigan committee in 1977, in one of the principles Professor Manson read out to you, says justice for inmates is a personal right and also an essential condition of their socialization and personal reformation. Your fellow parliamentarians have said treating prisoners with justice and fairness is in fact the best way in which you impress upon them the need to live within the law. That has its measure and its reward in public protection. People who are treated fairly are more likely to treat us fairly—not always, but more likely. That is what is in it for citizens who have not violated the law. Their rights in future will be respected because we have respected the rights of people when we put them in prison.

That is the ringing clarion call of parliamentarians in 1977. I would hope it would be something you would endorse in 1999.

The Chairman: Thank you, Professor Jackson.

Mr. Grose, did you have any questions?

Mr. Ivan Grose: Yes. I would like to thank you, Professor Jackson, for your support of this adjudication process. Oftentimes in an internal trial in a prison the warden may have access to information or evidence, if you will, that at best can be judged to be not reliable. The adjudicator wouldn't have access to that and therefore could make a more proper decision.

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There was one point I picked up. You said to have the adjudication process take place in 5, 10, or 30 days. I would suggest it be held as immediately as possible, so that no undo sentence is served.

There's another point I'd like to impress on you. I'll see whether you agree with me or not. If it were left too long, and the adjudicator were successful in getting the sentence ended at 30 days—maybe the original intent was 60 days—there's a possibility it could be done on the instalment plan; another 29 days for a very minor offence.

I think if you nip it in the bud, you would get the message across, and I think it would make trying to impose the original sentence futile. What is your opinion on that?

Mr. Michael Jackson: This was an issue that came up in the task force on segregation. If you're going to have independent adjudication, when does it kick in? Part of the problem, from the point of view—and I'm putting myself in the situation—of a warden of an institution, is that when I'm told a prisoner has been knifed, and there are three individuals who are believed to be the prime suspects, I want to be able to take action immediately to preserve and prevent prejudice to an ongoing investigation. To have an external adjudicator immediately involved would be difficult, operationally.

I am prepared, and I think the bar is prepared, to give some leeway to the warden and his officials to take emergency action to start an investigation. In 1982, I wrote a book called Prisoners of Isolation: Solitary Confinement in Canada, about solitary confinement. At that point, I drafted a model code dealing with segregation that would have the independent adjudicator review the case at five days. I still think that's the best model, and it was the model that Madam Justice Arbour adopted as well. I think it's one that strikes the right balance.

Mr. Ivan Grose: Thank you. That would satisfy me.

The Chairman: Thank you very much. There's just one question before going to Professor Jackson. We made reference to Mr. Conroy's evidence in Vancouver last Thursday, and I think in addition to the availability of legal aid on the outside and its unavailability on the inside, he was making a point that if it's a violation of the Criminal Code, it should be enforced under the Criminal Code. There shouldn't be the principle that there are two parallel criminal justice systems. I wonder if you have any comments on that.

Mr. Michael Jackson: I don't think the bar has come to a final position on that. I think it works both ways. Take the offence of an assault between two prisoners. If it's an unwanted touching, without consent, it's an assault. You wouldn't want every single push and shove in a penitentiary to go before a provincial court judge with a charge of assault. Some of those cases are dealt with by an officer saying, stop it. Some of them are dealt with in minor court, with a warning. I don't think you'd want to require the penitentiary to ratchet up every kind of assault-type contact into a criminal offence.

I think there are advantages in having a discretion to determine that some cases that technically fit within the definition of an offence can be dealt with in a less serious and incapacitating way.

The Chairman: Thank you. I thank the witnesses from the Canadian Bar for your attendance, Professor Jackson, Professor Manson, and Ms. Thomson. Thank you very much for your assistance. We will now adjourn.

Committee members, could we remain? We have an in camera discussion on our travel plans for the future.

[Editor's Note: Proceedings continue in camera]