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 22, 1999

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[English]

The Chairman (Mr. Paul DeVillers (Simcoe North, Lib.)): I call this meeting to order. This is a meeting of the Sub-Committee on the Corrections and Conditional Release Act, which is a subcommittee of the Standing Committing on Justice and Human Rights, and we have a panel of witnesses today. We have Professor Charlene Mandell, associate professor and director of the Correctional Law Project, Queen's University; we have Lisa Addario, executive coordinator, National Associations Active in Criminal Justice;

[Translation]

the President of the Canadian Criminal Justice Association, Ms. Cécile Toutant,

[English]

Paul Williams, the past president, and John Braithwaite. If we could have approximately a ten-minute submission from each of the groups, starting with Professor Mandell and then Ms. Addario, that would allow time for the members of the committee to pose questions.

Professor Mandell, if you're ready, please proceed.

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Professor Charlene C. Mandell (Associate Professor and Director, Correctional Law Project, Queen's University): Thank you. I would like to thank the subcommittee for inviting me to participate as part of your review of the Corrections and Conditional Release Act. I've provided you with a brief, and in the brief I explain my experience in the area of correctional law.

For those of you who aren't familiar with the Correctional Law Project and myself, I've been the director of the Correctional Law Project since 1987 and, prior to that, the assistant director since 1982. So my area of legal expertise is the law of corrections. The Correctional Law Project, briefly, is a legal clinic funded by Legal Aid Ontario and the Queen's University faculty of law to provide legal advice, assistance and representation to the prisoners in the 11 federal penitentiaries in the Kingston area, including Warkworth Institution.

The project is small. It consists of two lawyers, me and the staff lawyer, one full-time secretary, one part-time secretary, and during the academic year, from September through April, 16 to 18 second- and third-year law students who provide legal advice and representation under my supervision of that of the staff lawyer.

I'd like to stress that the views I'll be presenting today are my own and not to be taken as the views of the Queen's University faculty of law. I intend to begin by dealing with some aspects of part 1 of the legislation. In particular, the areas I intend to comment on in part 1 of the CCRA are administrative segregation, involuntary transfers, disciplinary charges and hearings, and finally information.

I have some comments for some specific areas of part 2, temporary absences for socialization, accelerated parole reviews, full parole for deportation, statutory release, and detention. I have some concluding comments on the implementation and accountability aspects of the CCRA.

First, administrative segregation. Section 31 of the CCRA, and sections 19 to 23 of the CCRA regulations, set out the legislative requirements with respect to administrative segregation. The regulations provide for the mandatory review of an offender's confinement in segregation by a segregation review board. In the project's experience, the reviews conducted are not meaningful and many offenders are confined for lengthy periods of time in segregation. Given the seriousness of confining an offender in segregation, meaningful reviews are a necessity. To ensure meaningful reviews I would recommend the following.

One, the act or regulations should be amended to provide offenders with the right to be represented by counsel at all segregation review board hearings, just as they have the right to be represented by counsel at disciplinary court hearings.

Two, regulations should be amended to require that offenders be provided with at least 15 working days' notice of the date of all segregation review board hearings after the first hearing, which according to the regulations must be held within 5 working days. So obviously you can't give 15 days' notice.

At present the regulations require that the offender be provided with at least 3 working days' notice. In our submission this is insufficient time for offenders to consult with or retain counsel and to prepare for the hearing. I recommend that the regulations be amended to require that offenders be provided with the information that the segregation review board will be considering at the hearing, again at least 15 working days in advance of the hearing. The regulations require 3 working days. Again, we submit that this is insufficient time for the offender to review the information, to consult and retain counsel, and to prepare for the hearing.

Also, I recommend that the act or regulations be amended to require that offenders confined in administrative segregation for longer than 90 days have their confinement reviewed by way of an in person hearing by an external reviewer who is independent of correctional service after the first 90 days and every 60 days thereafter.

Further, I recommend that the act and regulations be amended to require that offenders have the right to be represented by counsel at these hearings, and the right to 15 working days' notice of the date of the hearing, and the information to be considered at the hearing. Finally, I recommend that the act and regulations be amended to provide for the appointment of such external reviewers.

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Involuntary transfers. This is also an area of great concern, as was the administrative segregation area. Involuntary transfers of offenders from lower-security to higher-security institutions occur with great regularity and are of serious concern because they have such serious adverse impact on offenders. Given the serious adverse impacts such transfers have on offenders, it is necessary that there be meaningful protections for offenders facing involuntary transfers.

Sections 12 to 16 of the regulations set out the requirements governing these involuntary transfers, and on their face the requirements set out in these sections seem to afford offenders meaningful protection. However, this is not the case. The requirement in paragraph 12(b) that affords the offender “a reasonable opportunity to prepare representations”, among other things, is rendered meaningless by virtue of paragraph 14(b) of commissioner's directive 540 dealing with the transfer of inmates.

This paragraph in the commissioner's directive provides that in the case of non-emergency involuntary transfers, the institutional head shall give the offender 48 hours to prepare a response to the proposed transfer. Forty-eight hours is totally inadequate and, I submit, does not constitute a reasonable opportunity as required by the regulations. An offender cannot consult with or retain counsel in 48 hours. The offender may not be able to prepare a response. In other words, 48 hours is just not a reasonable opportunity, and I recommend that paragraph 12(b) be amended to require that the offender be given “a reasonable opportunity which shall not be less than 15 working days” to prepare a response to the proposed involuntary transfer.

Disciplinary charges and hearings. There are significant problems. We do a lot of appearing before independent chairpersons representing inmates charged with disciplinary offences, and there are significant problems with respect to the laying of serious disciplinary charges against offenders and with respect to the conduct of the disciplinary hearings by independent chairpersons.

Sections 40 to 44 of the act and 24 to 41 of the regulations set out the legislative provisions governing disciplinary charges and hearings. Section 41 of the act requires:

where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

In the project's experience, this is not being done. Also, in our experience, if counsel who is representing an offender charged with a serious disciplinary offence before an independent chairperson tries to raise the question of whether or not CSC took the informal resolution route, the independent chairperson will usually not listen to this. Therefore, I perceive that there is a serious problem in that CSC appears to be ignoring section 41 without consequence. I submit that the act must be amended to ensure that CSC must comply with the requirements of section 41.

There are also serious problems with the hearings themselves. One of the problems is the use of senior CSC personnel as advisers to the independent chairpersons at the hearings. I cannot find any provision for the use of these CSC personnel in the act or the regulations. This is provided for, however, in commissioner's directive 580, “Discipline of Inmates”, in paragraphs 19, 20, 21, and 22.

In our experience at the project, the CSC adviser takes an active role in the hearing and also the adviser may be involved in the incident. In several of the institutions, the adviser is usually the urinalysis program coordinator and so he or she is involved in almost all cases involving the taking of urine samples. The use of CSC advisers creates the appearance of bias and unfairness, and it undermines the perception of independent chairpersons as independent.

Two other serious problems are the lack of uniformity in the decisions made by independent chairpersons and the perception that independent chairpersons are reluctant to acquit offenders. Perhaps these problems could be ameliorated by setting out in the act or the regulations requirements for people appointed to be independent chairpersons and requirements for training that must be provided to and undergone by all independent chairpersons.

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I would recommend that one of the requirements for appointment as an independent chairperson be previous practice in the area of criminal or correctional law. I would recommend that part of the training include familiarizing independent chairpersons with the institutional routine so that they would not require CSC advisers, and I would recommend that not all training be done by CSC or other government personnel.

Finally, it's a serious problem that there is no mechanism to appeal a decision of an independent chairperson, save and except to take a judicial review application to the Federal Court of Canada. This remedy is simply not available to most offenders. I would recommend that the CCRA be amended to provide for an appeal mechanism similar to that provided for in section 147 of the act for appealing decisions of the National Parole Board. This is the mechanism that provides for an appeal division within the parole board to hear these appeals, and I'm recommending a similar provision with respect to independent chairpersons' decisions.

The Chairman: Professor Mandell, I see you're about halfway through your very comprehensive brief and you're at about the 10-minute mark now. So maybe you could just highlight the recommendations.

Prof. Charlene Mandell: Certainly.

The Chairman: The committee members do have the brief, and we'll be able to study it in detail.

Prof. Charlene Mandell: I have some concluding comments.

I think the comments on full parole for deportation and accelerated parole reviews are self-explanatory.

With respect to full parole for deportation, I would like to underscore this point: We suggest that there be specific criteria that deal with full parole for deportation, that section 102, which is the general criteria for granting of day and full parole, is not sufficient and doesn't work for full parole for deportation. It's simply not feasible for the parole board to be able to assess risk if somebody is being deported to, let's say, Ethiopia, when they have no knowledge of the country or the society. It's foolish to say, well, we're going to assess risk in Ethiopia, and it's also foolish to say, well, we'll assess risk in Canada and then decide whether or not the person should be deported to Ethiopia. I think there need to be specific criteria that address the issue of full parole for deportation. So that's one thing I do want to stress.

Also, with respect to statutory release and the provision under subsection 133(4.1), which allows the releasing authority, usually the parole board, to impose a residency requirement, requiring an offender to reside in a halfway house or psychiatric facility upon his or her statutory release, this is a serious deprivation or curtailing of such an offender's liberty, and we would suggest that this should not be done without the parole board having to hold a hearing similar to all the other types of hearings.

Finally, with respect to implementation and accountability, I notice that in the report on consultations, the executive summary states: “The majority of issues identified during the consultation process were problems with implementation, rather than problems inherent in the legislation.”

First, I would like to say that the majority of problems I've identified in my brief are not problems of implementation; they're problems with the legislation. But secondly, I would like to say to the committee that it won't do to categorize something as a problem with implementation if this is a means of having to avoid dealing with it, because if the act and the regulations aren't being implemented, then what good are they? They need to be properly implemented.

I would recommend strongly that the subcommittee enact provisions that provide for the requirement on CSC, all people working for CSC and the parole board, right down to the front-line workers, the case management officers, parole officers, and so on...that will impose sanctions for failing to comply with the act and the regulations. Right now, if they don't comply, nothing happens. They do so with no consequences.

We hold the offenders accountable and we have consequences. If they don't follow the rules on parole, they're hauled back. I think accountability has to be a two-way street.

I would refer you to the report of Madam Justice Arbour on her inquiry into the events at the Prison for Women, at page 182, where she says:

As a corrective measure to redress the lack of consciousness of individual rights and the ineffectiveness of internal mechanisms designed to ensure legal compliance in the Correctional Service, I believe that it is imperative that a just and effective sanction be developed to offer an adequate redress for the infringement of prisoners' rights, as well as to encourage compliance.

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So she's recommending some sort of sanction to encourage CSC's compliance with the requirements of the act and the regulations, and I would urge the committee to heed these words and do so as well.

Thank you.

The Chairman: Thank you for that very well prepared brief, Professor Mandell.

We'll now hear from Ms. Addario, from the National Associations Active in Criminal Justice.

Ms. Lisa Addario (Executive Coordinator, National Associations Active in Criminal Justice): Thank you, Mr. Chair.

The National Associations Active in Criminal Justice is a coalition of 19 national organizations dedicated to a socially responsible approach to criminal justice. Some of our organizations provide direct service to individuals who are or who have been in conflict with the law. Others of our organization actively promote community-based alternatives to incarceration. Still others engage in criminal justice research. Many of our member organizations receive the financial support of the Department of the Solicitor General.

Members of NAACJ work to prevent crime through social development, while seeking to increase public confidence in our justice and correctional system. We also share a concern to reduce incarceration and to promote international cooperation and collaboration. Through our vision of criminal justice, our members make a significant contribution to the public policy about criminal justice and correctional policy. We appreciate the opportunity to address this subcommittee on the provisions of the CCRA. We believe the act sets out a good framework. We support the focus on public safety and on reintegration.

I would like to direct my comments to five major areas: detention, the Office of the Correctional Investigator, work release programs, issues affecting federally sentenced women, and the statutory release with residency program.

Given its restrictions on the liberty of the individual in question, we believe the detention provision should be exercised with great caution. We note, though, that these provisions have been used much more often than it was ever thought they would be. On average, these conditions have been used four to five times more often than officials in CSC and the Solicitor General predicted they would be used. What perturbs us, though, is that the evidence shows that those who are detained are not more likely to reoffend. A comparison of the recidivism rates between those on statutory release and those who are held to the end of their terms shows that 37% of those on statutory release had reoffended, as compared to only 16% of those held to the end of their terms.

What does this suggest? It doesn't suggest to us that the lower rate of reoffending can be attributed to staying in prison longer. We think that's unlikely. If the threat of reimprisonment failed to deter those on an earlier conditional release, why would continued imprisonment deter those who are held longer? We think that when CSC and the parole board tried to judge who was likely to reoffend, they got it almost entirely wrong. This confirms that the statutory release provisions do not meet their objective of improving public safety, because it's not easy to predict dangerousness.

When people are detained, the opportunity is lost for them to reduce the possibility of reoffending through gradual release. There is a risk of releasing individuals without a process of gradual release or supervision. Extended detention, plus the practice of many communities of identifying those who were detained once they are released, means an increased challenge of reintegration for the offender. We therefore recommend that the current detention provisions of the CCRA should be deleted, and instead the provision should be reworked to provide that a person can be detained only when that person is unwilling or unable to comply with supervision.

Turning to the Office of the Correctional Investigator, the CCRA provisions relating to the Correctional Investigator do not sufficiently ensure that the issues that the Correctional Investigator raises with the CSC will be dealt with in a timely and responsive fashion. There is currently no mechanism to finally resolve issues between the Correctional Investigator and CSC. As a result, we believe the accountability of CSC has been called into question.

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Our recommendations are that serious unresolved issues between the Correctional Investigator and CSC should be referred to an independent adjudicator; that decisions made by the independent adjudicator could be overturned by the Solicitor General; and that this mechanism could be used to address unresolved issues that are highlighted in the correctional investigator's annual report. We also recommend that the correctional investigator should report to an external party in order to enhance accountability and ensure timely responses.

Turning to the section 18 work release program, we believe the risk of reoffending is significantly reduced when a person is economically self-sufficient in the community. Work release programs are necessary to assist the offender's successful reintegration, but the way the provisions are currently structured is insufficient. The current time limit of 60 days, with a possible 30-day extension, is too restrictive. We therefore recommend that the time restriction should be removed, or that the time should be increased at a warden's discretion.

Addressing issues of federally sentenced women, the lack of federal facilities currently available to federally sentenced women has meant that women sometimes end up in provincial facilities with less access to services, less access to programs, and less access to the correctional investigator. Currently there are only a few provinces that can provide services, such as drug treatment facilities, to women only. We also find that the statutory mechanism to monitor prisoners in segregation is inadequate. As Professor Mandell pointed out, in her report Madam Justice Arbour recommended external adjudication of the placement of prisoners in segregation. She also recommended clear external guidelines addressing the monitoring of prisoners placed in segregation.

We recommend that the placement of federally sentenced women in provincial institutions should be voluntary; that an independent adjudicator should review issues relating to the placement of prisoners in segregation for women as well as for men; that there should be an external review when the placement of prisoners in segregation is of a long-term duration; that there should be regular consultation with women's groups to address the issues of federally sentenced women; and that a national women's advisory committee should be established, similar to the National Aboriginal Advisory Committee created under section 82 of the CCRA. We also recommend that CSC should provide notice to women-centred correctional services in the community in advance of an inmate's release. This notice would give the community-based services the opportunity to propose a community-release option for the woman who is to be released.

Finally, addressing the issue of statutory release with residency, the implementation of statutory release with residency requirement has resulted in unwilling participants who are taking up space in residential programs. Consequently, places are not available for clients who are willing and prepared to take up residency. Unwilling participants are disruptive to residential programs. Having involuntary clients in residential programs is inconsistent with the goals and the mandate of community-based programming. Moreover, some people are being placed in communities to which they have no connection.

We recommend that the residency requirement should only be imposed on an offender after a hearing before the parole board, which would take place at least six months before the offender's release date. Further, residency requirements should be reserved for those who are not eligible for early conditional release, and a residency requirement should be restricted to less than six months.

Thank you.

The Chairman: Thank you very much, Ms. Addario,

[Translation]

Ms. Toutant, would you like to make the presentation on behalf of the Canadian Criminal Justice Association?

Ms. Cécile Toutant (President, Canadian Criminal Justice Association): Yes.

The Chairman: Thank you.

Ms. Cécile Toutant: Thank you, Mr. Chairman.

The Canadian Criminal Justice Association would like to thank you for inviting us here today to express our views on the proposed changes to the Corrections and Conditional Release Act five years after its adoption.

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The Canadian Criminal Justice Association has 1,000 members and consulted across the country in preparing this brief. The people we represent are involved at all levels of the criminal justice process, from the time of arrest to the end of the offender's rehabilitation process.

We are therefore directly affected by anything that may help or hinder our efforts within the justice system. That is why we would like today to not only present our brief but also emphasize a certain number of points that we feel are particularly important.

I would also like to point that the Canadian Criminal Justice Association published a document last year entitled Prison Overcrowding and the Reintegration of Offenders. We no doubt sent you a copy. If you do not have the document, we will be glad to send it to you. It lays out the argument that we will be referring to today.

I am sure that you read the newspapers. Perhaps you read the article I am going to refer to. On Sunday, March 14th, the Canadian Press published particularly worrisome statistics on the prison population in the United States. The figures came from the New York Times. Nearly one out of every 150 Americans is currently in prison. No other democracy in the world comes near that level. Of all Americans who are born in 1999, one out of every 20 will do prison time at some point. In the case of Blacks, the proportion is one in four.

Some societies are struggling to make enough hospital beds available. In the United States, the challenge is to find enough prison beds. A large proportion of offenders in the US are incarcerated for drug offences, in many cases, for simple possession.

I am not describing the American situation in order to be able to say that in Canada we are doing so much better that there is no room for improvement. So what is the situation with our own prison population? You can look at the statistics. Statistics Canada, in its report on adult correctional services published in 1996-97, showed that the trend among judges recently is to sentence more and more offenders to prison time, which translates as a steady increase in prison numbers.

Over the last decade, the penitentiary population increased by 34%. It seems that we are in a less dramatic situation than the United States. However, it is clear that if the present trends continue, we too will face the same types of problems. It may be worth reviewing certain principles that should guide our actions.

Public protection is a theme that comes up repeatedly in the legislation we are discussing today. The Canadian Criminal Justice Association would like to indicate that public protection is best ensured from the outset through crime prevention. That fact seems to be well understood in Canada, since considerable money is being invested these days in prevention.

When prevention is not successful, despite these efforts, and crimes are committed, the best measures are those which are least restrictive, which protect society while helping the offender to take responsibility. In that sense, community sentencing is not an alternative to incarceration, but is, for some offenders, the best measure because it is the most effective and the least costly.

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Detention should be reserved for offenders who have committed the most serious offences and for those who, although their offences are not serious, refuse to cooperate with community workers.

Let us now look at detention. Prevention has been tried—it works in some cases, crimes have been committed and we are now at the point where detention is the chosen option. Detention should be no longer than required to make the offender take responsibility and invest in a positive way in the community. For this to happen, those working in the system have to have means of getting to know the offender well, and a personalized approach needs to be used that takes into account the offender's needs and abilities.

Reintegration of offenders is an excellent way to ensure public protection, and this is why we would like to make the following more specific recommendations.

First, it is unacceptable that some eligibility dates are postponed because valid and relevant information is lacking in order for decisions to be made. I mentioned earlier that it was very important that those involved know the inmates. That might seem like a meaningless comment. You must be thinking that the workers obviously know their clients. I can tell you that this is not the case. Given the number of reports they must produce, these workers often have too little contact with clients. They are more familiar with their computers and papers than with the clients.

Second, the judicial ruling on parole eligibility is made without full information. The judge cannot know how the offender will react once incarcerated and obviously knows nothing about the inmate's progress. For all the reasons given in our brief, we recommend that the provisions on judicial rulings be struck.

The association is firmly convinced that gradual release is one of the most effective forms of reintegration and that for this reason society must be prepared to accept a reasonable level of risk, and not aim for zero risk.

I want to share with you a cliché that is sometimes used: in looking for rehabilitation without risk, the risk is that there will be no rehabilitation. That nugget should be kept in mind, although it may be a little black and white, but it does reflect our views well.

When we refer to gradual release, we are talking about intelligent gradual release. I will explain. Not all inmates in penitentiaries need to go through all the stages of release. Some inmates can go home as of their date of eligibility. They do not necessarily require supervised parole. They do not necessarily need to go through the whole series of existing measures.

If workers know the clients well, they can determine that some will benefit from certain measures and others will not. For some people, sending them to a transition house when they could be at home in a relatively positive environment is not a good decision. Gradual release does not mean making people go through all the steps from A to Z. It means involving them in the step that we feel is the most appropriate.

We therefore support the provisions on temporary absences in section 17, and we would ask why temporary absences are not used more often, since they are successful in 99% of cases? There is no explanation for that.

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Over the last five years, there has been a 70% drop in unescorted temporary absences in medium-security institutions, even though the success rate for this type of absence is extremely high.

With respect to out-placements, we fully agree with the suggestion to extend to 90 days the maximum duration of such out- placements and to delegate the authority to the institution warden to continue and extend the program. These placements could enable inmates to take part in academic or occupational training or assume parental responsibilities, whether we are talking about men or women.

We talk about this possible temporary absence program especially for women, to enable them to assume their parental responsibilities. Why not for men? Why would we not work to help men increase their parenting abilities, given that they would often like nothing better than to be around their children a little more when they have a TA?

The Chairman: Ms. Toutant, you have used your 10 minutes. I would therefore ask you to summarize the rest of your points.

Ms. Cécile Toutant: I am hurrying.

The Chairman: As was the case for Professor Mandell, we have your detailed brief, and the committee can refer to it later.

Ms. Cécile Toutant: Fine.

I will deal quickly with the other types of release. Yes, we agree with supervised parole. Given the apparent success of this measure, we feel that it is important that it be more widely used and offered earlier in the process.

We recommend that there be an automatic review by the National Parole Board in cases of supervised parole and that inmates be seen when they become eligible for this measure.

In contrast to what we might read in the newspapers, the success rate in cases of full parole is very high. We should be more open and take the view that offenders are too often incarcerated until the date of statutory release. You have no doubt heard comments to this effect. There are fewer and fewer people being awarded full parole; many have to wait for statutory release. Given the success rates, I feel that we should adapt the programs in order to increase the number of offenders given full parole.

The Canadian Criminal Justice Association has reservations about statutory release. We have always been very uncomfortable with automatic provisions contained in legislation, whether they concern accelerated review, the obligation to serve one sixth of the sentence or statutory release, since there is often no flexibility and no account taken of the fact that we are dealing with individuals.

We would like to see more programs to enable an increasing number of people who are now given statutory release freed before that date and allowed to participate in programs that are meaningful for them.

For the Canadian Criminal Justice Association, given that the means available to assess the dangerousness of offenders are quite unreliable, the provisions on detention should be totally eliminated. Our brief goes into detail on the reasons.

The Chairman: I will have to interrupt you. You will no doubt have an opportunity to give more detail when you answer the questions.

Ms. Cécile Toutant: I would just like to make a brief comment on the professionalism of the workers involved, which is covered in section B-13 of our brief. For a number of years, the Canadian Criminal Justice Association has emphasized that it is very important to support staff who make decisions in the corrections system.

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As long as we have a system that just wants to find a scapegoat when something goes wrong, there will be employees at all levels who make the safest, the least challengeable and least questionable decisions. To some extent, it is only human to say "If I make a mistake, I will lose my job; the best thing to do is to keep all of them inside and refuse all absences". We feel that that takes place at a number of levels.

We are not at all questioning the motivations of workers, but the fact is that staff do not feel that they have support from higher up. It is not a good idea to change the coach if a player is not performing well. I do not think that people take careless risks, but those making the decisions have to be able to make the right ones, even though they are never 100% sure that the person will not re-offend.

The Chairman: Thank you, madam.

Ms. Cécile Toutant: I will stop there, but it is too bad because I still had a lot of things to say.

The Chairman: We have only until five o'clock for questions and answers.

I will now give the floor to Mr. Gouk for seven minutes.

[English]

Mr. Jim Gouk (Kootenay—Boundary—Okanagan, Ref.): Thank you, Mr. Chairman. After all that information supplied to us, it's hard to tell where to start with this.

It would probably be easiest to start at the beginning with Professor Mandell. One of the things you raised was an objection to the involuntary transfer. You used specifically the example that in going from minimum security to medium security, 48 hours wasn't enough, and there had to be at least 15 days' notice.

Inside a medium-security prison you have total confinement; you have security. I've been in minimum-security prisons and basically you have bungalows, duplexes, etc. There are no fences. You don't break out of those places; you walk away. If you have some kind of security risk because someone isn't following the rules, is disruptive to other inmates, or perhaps even walked away when they weren't supposed to, what do you do with this person for two or three weeks, or however long, if you're saying you have to keep them in this facility and cannot transfer them to a more secure facility? How do you deal with that?

Prof. Charlene Mandell: First, let me clarify. I was talking about involuntary transfers from lower security to higher security, but I was not talking about minimum-security institutions. I was talking about transfers that occur from medium-security institutions to maximum-security institutions on a non-emergency basis.

What usually happens in our experience is they're perfectly able to confine these people, and they do so for weeks ahead of time. They say “Maybe we're going to transfer you; maybe you'll receive a notice”, but they don't get the formal official notice until 48 hours before the transfer, with all the stuff to respond to. They put them in segregation. They sit there in segregation in Collins Bay for weeks and sometimes months.

In one case we had the subject of an OPP investigation. We called the OPP and they had never heard of the guy. He was no more a subject of an OPP investigation than I am. But meanwhile, 48 hours was up and he got his little thing. He didn't have a chance to get hold of us to get back out there. He was transferred to Millhaven. He sat for three months in segregation at Collins Bay; why couldn't he sit for another 15 days so he could get hold of his lawyer, frame a proper response, and know we had called the OPP? We could have said “What's this about an OPP investigation?”

If somebody's in a minimum-security institution and constitutes a risk, or even in a medium-security institution and constitutes a risk, there are provisions for emergency involuntary transfers. They can just whip him right away—no ifs, ands or buts and no 48 hours. Bang, you're into Joyceville or whatever from Pittsburgh or whatever minimum-security institution you were in; or from Collins Bay to Millhaven. Then the process starts. You get your notice. You get your opportunity to respond.

But I wasn't speaking to the cases of emergency transfers where there's some sort of security risk. I was speaking to cases of non-emergency involuntary transfers, where the regulations say you should get a reasonable opportunity to respond, and the commissioner's directive says reasonable opportunity is 48 hours.

I'm saying, no, they're in an institution. Often they're in segregation. You can't even get an appointment to see them, if they can get a phone call out to you fast enough. It takes time to get an appointment, especially to see someone being held in segregation in any of these institutions. So it's just not reasonable. If you have a segregation area—

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Mr. Jim Gouk: I appreciate you'd like to get a full answer, but we have a lot of people to question and very little time. I would like to get a couple of other questions in.

Prof. Charlene Mandell: I just think it's a very important issue, because we have a lot of people who come to us with this problem of being involuntarily transferred and not really having an opportunity to make representations. Once the deed is done it's very hard to undo. So it's a significant problem.

Mr. Jim Gouk: One of the other things you said is that if someone who has been in jail and is being released has to maintain a specific residence, it is a curtailment of that person's liberty. Aren't we already saying “You have no liberty at all; you're in jail. We think you can benefit from being in the community, but we believe we need to control your movement on the outside because you are still serving your sentence”? Why is it such a terrible thing to curtail them, in that sense?

I know other problems have been brought up in terms of taking up space for people who are unwilling and a variety of other things, but specifically on that point, how is that a—

Prof. Charlene Mandell: I understand what you're saying, but if we're talking about statutory release that is mandated by the act, except when you're referred for detention, at two-thirds of the sentence, the person has a right to this liberty, as opposed to a privilege, which is like being granted full parole. He or she is going to be released at the two-thirds mark, and you have this additional provision that has just been added that says now we can require you, if we think you're going to commit a schedule 1 offence, to reside in a halfway house.

That's well and good if there are reasonable grounds, but this constitutes a restriction on the person's liberty. If you were released on statutory release prior to the addition of this, you could live in an apartment, live with your wife or whatever; you wouldn't be required to stay in a halfway house. A halfway house is a secure institution. It's not like being released without going to an institution.

I'm saying at least hold a hearing the way you hold a hearing for full parole or day parole. Make the requirements that pertain to a hearing. The person can be assisted by counsel, his mother, his wife or whatever. Let them appear before the parole board, hear the reasons why and make a full answer in defence if they don't think they should be in a halfway house. Let them have an opportunity to be heard on the issue. That doesn't mean they won't end up being sent to the halfway house, but at least it will be a fair process by which people will have an opportunity to be heard when their liberty is going to be restricted.

The Chairman: This will be your last question in this round.

Mr. Jim Gouk: This is my last question.

For the NAACJ, to make it nice and short, one of the things you mentioned is that placement of women in provincial institutions should be voluntary only. In British Columbia, for example, that is the way it is dealt with. If they do not voluntarily agree to do that, what is the alternative? Are you saying we have to build facilities in each and every one of these provinces in case someone will not go to the provincial institute? Or is there some other alternative?

Ms. Lisa Addario: There should not a diminution in accessibility to services and programs and accessibility to the correctional investigator purely by virtue of an exchange of service agreement between the province and the federal facility. So I would say that if the provisions can't be provided within the provincial facility and the woman herself doesn't agree to being in the provincial facility with the diminished services and accessibility available, the requirement would be to provide her with a place in a federal facility. But I think the solution to the problem lies in providing those enhanced services to women in provincial facilities.

Mr. Jim Gouk: To use British Columbia as an example, if that occurred, are you suggesting we build a federal women's facility, even if it's only for a virtual handful of women? You said they should have the choice to go to a federal facility. Those are men's facilities, so they would be in a wing of a men's facility. Would that be your alternative?

Ms. Lisa Addario: No, I'm not suggesting they should be placed in men's facilities, because that would be tantamount to administrative segregation. That's not what I'm saying. I'm saying the better course would be to be able to provide them with the enhanced facilities within the provincial institutions.

The Chairman: Thank you.

We'll go to Mr. Grose.

• 1625

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

I have agreed with virtually everything I've heard so far, which for me is very unusual, as anyone can tell you. This is by far the best panel I've listened to.

I would like to try something novel here. Rather than nitpick and ask questions on minor points or raise the points I have that some of their suggestions would be hard to implement because of public attitudes—that's our problem, not theirs—I would like Ms. Toutant to pretend I've asked questions on the points she didn't have time to cover, and give me as many answers as she can.

Ms. Cécile Toutant: Well....

[Translation]

The Chairman: You have six minutes left.

Ms. Cécile Toutant: I have the impression that I am constantly being timed. I feel sorry for you people in government; you do not have an easy life.

I would like to talk about statutory release and give you a few statistics. Over the past few years, many offenders have reached the date of statutory release without having been absent even once. Since 1993-94, this category has increased by 37%. At the present time, six out of every 10 offenders do not leave the institution before statutory release. They have therefore not had the benefit of any program aimed at reintegrating them into the community.

One might say that they are being released only when it is absolutely mandatory to do so. The rate of recidivism is not higher for this category than for those who have had access to ordinary parole. However, they have more often had to return to the institution because of technical charges; they do not necessarily commit crimes, but do not respect some of the conditions of their parole. I think that these offenders probably annoy those supervising them because they often do not cooperate as one might like. The authorities are so cautious that they return these people to the institution long before they commit any crime. Recidivism is therefore no higher, but they are often sent back to the institution because they have violated parole conditions.

Residency requirements for those who have been granted statutory release is a concern to the Canadian Criminal Justice Association, and should probably be abolished. We would like to see that happen and we hope that the Correctional Service will put more energy into the planning of programs to meet the needs of those on statutory release. Through excellent studies of offender profiles, it might be possible to offer them different release mechanisms and release them more gradually rather than having them wait for statutory release.

We feel that the provisions on administrative segregation should be changed to permit implementation of a pilot project to allow inmates to appeal to an independent referee in cases of non- voluntary segregation. We recommend also that such a referee be appointed by an organization other than the Correctional Service of Canada, so that there is no potential for a conflict of interests.

The issue of urine analysis touches on both health issues and compliance with the legislation. The Correctional Service of Canada is giving itself the means to uphold its mandate and work toward the ideal of reintegration.

• 1630

The risks of re-offending involved in drug use by offenders is something that our Association feels should always be assessed on an individual basis. For example, if I may be simplistic for a moment, it is very possible that an offender using marijuana with his wife at supper time might have a positive urine result without any link between that act and an increased use of the offender committing an offence. The Canadian Criminal Justice Association believes that positive results should be analyzed on the basis of the individual's problems in order to determine whether the fact that the person smoked marijuana constitutes a danger and might lead him or her to re-offend. Should the person be told to be careful or be sent back to the institution? Each person's situation is to be analyzed and automatic reactions avoided.

The Chairman: Ms. Toutant, I must interrupt you.

[English]

Seven minutes—

Mr. Ivan Grose: Thank you very much for your answers to my phantom questions.

Thank you, Mr. Chairman.

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

Thank you very much, Professor Mandell, for your comprehensive brief; I'd like to start at the end of it. You make an interesting comment there, at least to me, where you say on page 13:

I would like to say to the Sub-committee that many of the problems I have commented on today are not problems with implementation. They are problems with the legislation.

Did you have an opportunity to take part in the consultations with the Department of the Solicitor General prior to their issuing their report on consultations?

Prof. Charlene Mandell: Yes.

Mr. Tom Wappel: Undoubtedly you made many of the same points you made today.

Prof. Charlene Mandell: Actually, the consultations were quite different, but the points about disciplinary hearings, yes.... I don't know that we really got so much to involuntary transfers, and I did not make the point about full parole for deportation because I actually thought of that after.

As for the point about accelerated parole reviews, which is a minor suggestion, perhaps—basically, that it be incorporated into the legislation that offenders be allowed to defer their APR reviews if they want to do so—the reason I make this point is that until very recently the parole board would not allow an offender to defer his accelerated parole review, be it day or full parole, if he or she wanted to, even if it was to take a program, or whatever. So some of them, yes, and some of them, no.

Mr. Tom Wappel: My point in asking is this. Did they identify in that report on consultations the minority of issues that were problems inherent in the legislation, to your satisfaction?

Prof. Charlene Mandell: No, I don't think they did.

Mr. Tom Wappel: All right, that's what I want to know. Thank you.

Could we turn then to what you just talked about, parole for deportation. It's very interesting, page 11: “Many offenders with deportation orders against them apply for full parole for deportation.” Is that a term of art?

Prof. Charlene Mandell: Full parole for deportation? It is sort of, yes.

Mr. Tom Wappel: Because there's nothing in the act that allows—

Prof. Charlene Mandell: No.

Mr. Tom Wappel: So basically it is really that the offenders know they're going to be deported, they want to get out of prison, they apply for full parole. The parole board looks the other way, they're let out, they're picked up by Immigration and sent out of the country. Isn't that really what happens?

Prof. Charlene Mandell: No, that isn't what happens at all.

Mr. Tom Wappel: Well, tell us what does happen.

Prof. Charlene Mandell: In our experience with the project—because we've represented people who have made applications for full parole for deportation—first of all, if there's a deportation order against you, until recently the parole board wouldn't consider you for day parole to Canada, or even for full parole. There's been a recent case; I haven't had the opportunity to read it, but it might change this. It's just unrealistic if you have a deportation order—you're not really going to get day parole; forget that.

Mr. Tom Wappel: I'm talking about full parole.

Prof. Charlene Mandell: People with deportation orders don't have any option but to apply for full parole for deportation. They can't be full-paroled to Canada, so they make an application for full parole for deportation—

• 1635

Mr. Tom Wappel: Excuse me. They are full-paroled to Canada. As soon as they walk out of the institution they're picked up by Immigration and deported. They're not full-paroled to some other jurisdiction.

Prof. Charlene Mandell: Actually, they are. That's what the decision is. There has to be a deportation order and there has to be a place that will take them. The decision is full parole for deportation.

Mr. Tom Wappel: You don't think that's an administrative situation of the NPB working in cooperation with immigration authorities to ensure that when someone walks out of the prison there is a place to deport them if they're under a deportation order?

Prof. Charlene Mandell: Certainly, but what the board does at these hearings is...they do not just automatically, because the person has a deportation order against them, grant full parole for deportation; they make an assessment. The kind of reasoning is, let's look at section 102 of the act; is there going to be a risk in...? I'm saying how can you assess risk in Ethiopia when you don't know it?

Mr. Tom Wappel: Professor, you've made your point. I understand that. What I'm suggesting is that the NPB doesn't look at section 102 because, you're quite right—

Prof. Charlene Mandell: They do, though. I've done these hearings, my students have done these hearings, and what they say is we have to apply section 102 of the act to these applications.

Mr. Tom Wappel: So what are you suggesting, then, that we add “(c) for the purpose of being deported”?

Prof. Charlene Mandell: I'm suggesting that we add something like “may grant for the purposes of full parole for deportation”, and if you want to put in some criteria where it's financially a good idea, or where enough denunciation has been...or something, so they don't have to do this impossible task.

Mr. Tom Wappel: So to correct the anomaly of...I understand. So you would recommend an additional ground that the NPB could look at that would involve issues around deportation.

Prof. Charlene Mandell: Right, exactly.

Mr. Tom Wappel: All right, understood. Page 12, statutory release. I'm not exactly sure of your point. Subsection 133(4.1), the way I read it, is a refinement of subsection (3), is it not?

Prof. Charlene Mandell: The way I read subsection 133(4.1) is that it's a recent enactment. It didn't come out with the CCRA five years ago; it came out in a subsequent amendment to the CCRA, and what it provides is that they can impose a condition on statutory release that the offender reside in a psychiatric or a halfway house.

Mr. Tom Wappel: That's what it says. My question is that subsection (3) allows them to impose any conditions they want.

Prof. Charlene Mandell: Except that they did not view that they could impose a residency requirement pursuant to subsection (3), which is why subsection (4.1) was added in subsequent legislation.

Mr. Tom Wappel: They're just being extra careful, aren't they? The way I read subsection (3), any conditions on the parole, statutory release, or unescorted temporary absence of an offender that it considers reasonable.... That's about as broad a language as you could ever have.

Prof. Charlene Mandell: No, but I think you have to read subsection (4). I think this is where the restriction comes in, because subsection (4) says:

Where, in the opinion of the releasing authority, the circumstances of the case so justify, the releasing authority may require an offender, as a condition of parole or unescorted temporary absence

—and it does not say statutory release—

to reside in a community-based residential facility.

Mr. Tom Wappel: Yes.

Prof. Charlene Mandell: So I think, reading subsections (3) and (4) together, you have to assume that statutory release was not included in (4); hence, they weren't allowed to impose a residency requirement; hence, they added subsection (4.1).

Mr. Tom Wappel: That's not how I read it. Wouldn't you agree with me that subsection (3) would be sufficient for the parole board to make as a condition of parole that you live with your wife?

Prof. Charlene Mandell: As a condition of parole, yes.

Mr. Tom Wappel: In your previous answers you were saying that isn't the case.

Prof. Charlene Mandell: No, I was saying you couldn't, under subsection (3), make it a condition of statutory release that you reside in a community-based residential facility, a halfway house.

Mr. Tom Wappel: You could make it a condition of statutory release to live with your wife under subsection (3).

Prof. Charlene Mandell: Yes, I think you could.

Mr. Tom Wappel: Of course you could, absolutely.

Prof. Charlene Mandell: But not that you reside in a halfway house, because of subsection (4).

Mr. Tom Wappel: That doesn't make a lot of sense, does it?

Prof. Charlene Mandell: I think it does, because a halfway house is an institution. Your wife is not an institution. So a halfway house is an institution, and there is a specific subsection (4) that restricts residency requirements in halfway houses to parole situations and unescorted temporary absences. The parole board also took the position, until subsection (4.1) was added to section 133, that it could not impose a residency requirement on statutory release.

• 1640

The Chairman: Thank you, Professor Mandell.

Mr. Tom Wappel: Mr. Chair, I do have some questions of the other witnesses when it comes back to me.

The Chairman: When we get back to it, right.

Mr. Tom Wappel: Thank you.

The Chairman: Now we'll go to three-minute rounds. Mr. Gouk.

Mr. Jim Gouk: Thank you, Mr. Chairman. Perhaps, with three minutes, a single point to Madame Toutant.

Contrary to what my colleague Mr. Grose said—and I can't remember exactly how he put it—that problems of perception with the public are our problem and it's not part of this act, I disagree. I disagree because, as legislators and as representatives of people from various regions and sections of Canada, I think the perception and the acceptance of the Canadian people of what we decide is paramount.

I believe very much in what you said about the concept of first preventing crime; secondly, where you fail to prevent it, then at least trying to deal with the problem to ensure that it doesn't recur, that the person is rehabilitated and reintegrated wherever possible and as unobtrusively as possible; and finally, for lack of a better word because of time, harsher treatment for those who simply won't play by the rules, who won't cooperate, who will continue to reoffend and so on.

I would ask you, from your point of view, how do we deal with the need for the Canadian people to have the right perception about this type of rehabilitation and to accept it? My view has changed more to your line since I've toured some of the prisons and met with a variety of people from prisoners' rights groups right through to victims' rights groups. But we have the same problem today.

I read an article about someone convicted of sexually molesting three young boys—no jail time. The public is outraged when we see that. So how do we balance these things out and decide, in a manner acceptable to the public, who goes free, who goes to jail, and who goes to jail and stays there for a long time? How do we balance that out so the public accepts it and the system will work that way?

Ms. Cécile Toutant: I was just thinking that if I knew the answer I would be here in your place, probably.

Mr. Jim Gouk: And you can have it too; I want to withdraw.

[Translation]

Ms. Cécile Toutant: I will give a partial answer and then turn it over to Mr. Braithwaite, because one of the aspects we have not dealt with today is public education.

I will express an opinion which is more a personal one than the Association's position. A great deal of money is spent on amending legislation, and we imagine that this is reassuring to the public. I think that we are often mistaken. We have to communicate with the public and do a better job of informing it about what is really happening in our institutions, and why we do certain things. The newspapers report decisions, but don't always give the reasons for them.

I said a few minutes ago that it would be important that the bosses of correctional workers, the ones who make the decisions, support their staff when the going gets rough. That's when they can explain more fully why things are done the way they are.

The efforts and money spent on public education, on explaining what we do and why we do it, are never wasted. When we are in contact with the public, we realize that even the victims can sometimes accept what we're doing when they understand why we're doing it and when they realize that we respect them. I've always been extremely surprised to encounter this in my work in the criminal justice field at the Institut Pinel, where we have a great deal of contact with the victims.

I'd like to let Mr. Braithwaite continue because I know that he is very aware of the need to educate the public and to get correctional staff on side.

[English]

Mr. John Braithwaite (Past-President, Canadian Criminal Justice Association): If I may, I would just point out that in the brief we submitted we said that the act had proven to be a promising act, and the current consultation would make it even better. However, the same effort and resources that have gone into the creation of the legislation and its monitoring and its evaluation should also be expended to expand the awareness of Canadians as to the content of the legislation, its rationale, and its reflection in practice.

• 1645

I would agree entirely with Mr. Grose and yourself that we do have a problem in terms of the public's perception, but we also have some wonderful opportunities to do something to create a more accurate perception.

I've also done a lot of work, and this association has supported it, with lifers and a concept called Life Line. I believe on March 16 this committee had a presentation from the Life Line concept from two lifers, René Durocher from Manitoba and Glenn Flett from the Pacific region. They appeared before the standing committee in relation to Bill C-251.

The Chairman: Just for your information, the subcommittee was on the road, so it was the full committee that received that submission. But we'll have access to that information as well.

Mr. John Braithwaite: That's great.

I cite that as an example of 2 lifers out of some 3,442 lifers under the jurisdiction of Correctional Service Canada who have re-established themselves in the community. They have successfully reintegrated, and they've come back to work with lifers who are still in the institutions to help to motivate them to work with community agencies in establishing more resources to successfully reintegrate offenders into the community—and each of those agencies they work with has a community board—and, finally, to commit themselves to working on developing a better public appreciation of the whole criminal justice and correctional process. The use of people like that to carry the message about what is effective in the field of criminal justice has a tremendous impact on the public.

The Chairman: Thank you, Mr. Braithwaite.

[Translation]

Mr. Saada, you have three minutes.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman.

[English]

Before we go any further, I want to say that I did attend the meeting of the justice committee where those two people appeared, and indeed, to me it was an obvious statement. I was going to say to my colleagues that the way to penetrate the public is not by having politicians explain things to them; it is by using people who have benefited from whatever the system had to offer and who are helping other people to benefit from their experience. That is the best selling point we have.

Mr. John Braithwaite: It may be out of order, but I humbly wish that in future deliberations of the committee on matters of this type, consideration would be given to inviting people like that to appear as witnesses. Thank you.

[Translation]

Mr. Jacques Saada: I'd like to come back to the remarks that you made, Ms. Toutant, not regarding technical aspects, but on a more basic, more philosophical level. You said that the Association was very uncomfortable with automatic mechanisms, that it found them very disturbing.

However, you also said that the success rate for day parole, for example, was very high. I understood that you wanted to encourage greater use of day parole. If this works, is it not also attributable to the fact that the people selected for day parole are carefully chosen? If a broader selection were made, might this not result in a lower success rate? I'll point out that I don't have the answer to this question.

Ms. Cécile Toutant: I think that you are saying some of the same things that we are. Yes, day parole works. What we are suggesting is that the current system be changed. We find that day parole is granted too late, only at the time of full parole. It could be granted much earlier.

• 1650

There are questions remaining. We have a very high success rate and that's great. Couldn't we ask ourselves now whether all of the people released on day parole need to be kept in halfway houses or in centres? Could not some of them live at home? Could day parole be granted earlier? Are we not being overly cautious?

We are constantly asking ourselves whether, considering that the system works, it could not be expanded by granting day parole earlier or by examining whether some of the individuals who are in halfway houses really need to be there. Could they have managed just as well with their family, by going home directly?

These questions cannot be answered until some testing has been done. We have to be able to say that it worked with certain offenders and therefore that it's feasible.

Mr. Jacques Saada: Some of my constituents with whom I discuss this a great deal draw a parallel that I don't want to take too far. They tell me that when the National Hockey League had six teams, the players in the league were all of high calibre, but when the number of teams was increased and more players joined, the quality went down. I cannot easily ignore this parallel that is drawn for the purpose of illustrating that too much expansion can destroy the success of a measure.

That's why I asked you this question a few minutes ago. I don't have the answer; I think that we don't have the answer.

Ms. Cécile Toutant: What seriously concerns us, and I mentioned this, is that we must not lose sight of the fact that six out on ten inmates get to their statutory release dates without having participated in a single one of these programs.

Mr. Jacques Saada: I see.

Ms. Cécile Toutant: We have to wonder if we are being too severe or too cautious. If we had better knowledge of our inmates and existing programs, could we not expand this?

The concept of automatic mechanisms is something else. This refers to making decisions on specific dates.

Mr. Jacques Saada: I'm just getting to this question.

If I understood your remarks correctly, you are disturbed by some aspects of the series of established date calculations: one- sixth, one third, half, two thirds and so on. Do these stand in the way of what you are recommending, that is, greater flexibility?

Ms. Cécile Toutant: I'd say that our position is one of promoting flexibility based on knowledge of the case and not solely on the offence.

I think that you know as well as we do that the practice of automatically setting dates, which at one point was applied to inmates who had not committed a violent offence, was a kind of joke; it's as though the law was thinking in the place of the people who were familiar with the inmates.

The CCJA and I believe it absolutely essential to let people study the cases, and not think that we can settle everything with legislation. When you provide for an automatic practice of releasing all inmates who have not committed a violent offence after they have served one-sixth of their sentence, you have to be careful. In such a group, there may be people you wouldn't want to release.

It's not just the offence that counts, but also the person. Some leeway must be allowed to take the person into account.

The Chairman: Thank you, Ms. Toutant.

[English]

Mr. Wappel, you had further questions for the other witness.

Mr. Tom Wappel: Thank you.

These are to the CCJA. On pages 10 and 11 of your comprehensive brief you talk about APRs. You make the statement that for APRs “...the rate of re-offending is almost double that of other regular full parolees...”. You give a citation there with a page number. Is that citation and page number in support of that statement or the sentence after it? I think that's a very compelling statistic, that you have a double rate of reoffending compared to the regular parolees, and I'd like to know where you get that information from. I'm referring to the top of page 11 in the English version.

• 1655

Ms. Cécile Toutant: I'm sorry, but I have the French version. You say that it's at the top of page 11 of the English version.

Mr. Tom Wappel: Oui.

Ms. Cécile Toutant: It comes from the National Parole Board, I think.

[Translation]

Mr. Tom Wappel: It's the same thing in the French version, on page 11.

[English]

Mr. John Braithwaite: I think we have the citation. It's from the National Parole Board performance monitoring report, 1997-98. It's an official board report, and it's available.

Mr. Tom Wappel: I don't want to nitpick, but I would like the information. I just took it to mean that because it was in italics, it referred to that which had been italicised and not to the previous sentence. If you have statistics that show that for APRs the rate of reoffending is double the rate of regular parolees, I'd like to see those, and it would be important for the committee to have that information. So I'll leave that with you. If you could find that, we'd greatly appreciate it if you could provide it to us.

My point is that you then go on to recommend that APRs be abolished as a form of presumptive release, and I just want to tell you that you're not the only people who have said that to us. I might even ask Professor Mandell, if I have 15 seconds, if she agrees with that.

Anyway, I'd like then to go to the last sentence on page 13 of the English version where it says “...a number of SR cases currently subject to a residency condition could be managed just as safely if other forms of adequate supervision were put in place”. That is such an open-ended, namby-pamby sentence. How many statutory release cases and what kinds of adequate supervision? Do you have any specifics you could offer the committee? That is such a broad statement, wouldn't you agree?

Ms. Cécile Toutant: Would you please repeat, sir, exactly where it is.

Mr. Tom Wappel: In the English version, it's the last sentence on the page.

Ms. Cécile Toutant: Is it page 18?

Mr. Tom Wappel: It's page 13. What you say there may very well be true, but it's just so broad, without any backing whatsoever. So my only comment is that perhaps you could provide us with—not today, necessarily—some cases you're thinking of and what kinds of adequate supervision you're talking about to back up what I consider to be an overly broad statement.

I then turn your attention to urinalysis. I only have two more points, Mr. Chair. I'd like you to tell me exactly—

Ms. Cécile Toutant: Can we answer your last question now?

Mr. Tom Wappel: If you have it.

Ms. Cécile Toutant: We finally found the page you were referring to.

Mr. Paul Williams (Past-President, Canadian Criminal Justice Association): The only comment I wanted to make is that our objections to APR and SR are somewhat similar, and the key to it is that it's an automatic kind of release, both the statutory release and the APR. This is where our reasoning really comes from.

Mr. Tom Wappel: I don't want you to argue, but your comments there deal with residency requirements, not SR and not APR. They deal with residency requirements.

Mr. Paul Williams: Oh, I'm sorry, I thought you had said SR. I didn't have the document in front of me.

Mr. Tom Wappel: Okay. I only have 30 seconds, and my chair applies the rules very tightly.

In your view, what is the intrusive nature of providing a urine sample? Why is it intrusive, in your opinion? You don't have to explain to me why a full body cavity search is intrusive. Why is a urine sample intrusive? In your proposition you seem to accept that it is intrusive, so could you tell me why? Are the guards standing six inches away from the penis watching—and I don't say that facetiously, I'm asking—or do they give you a bottle and ask you to provide a urine sample? If they do that, why do they do that? If you're going to water it down, they'll just keep making you provide a urine sample until you give a proper one, presumably.

Prof. Charlene Mandell: Maybe I could help out here. You have to provide it in full view, yes. It's maybe not six inches, but yes, they watch. It is intrusive.

Mr. John Braithwaite: You have to perform on demand.

• 1700

Prof. Charlene Mandell: Yes, and there.

Mr. Tom Wappel: And presumably the reason for this is because they could water it down, or flush it down the toilet, or something.

Prof. Charlene Mandell: Use somebody else's urine, whatever.

Mr. Tom Wappel: They couldn't use someone else's urine if the only people in the room are the prisoner and the guard, obviously.

Prof. Charlene Mandell: No, but that's why they watch. They watch presumably for some of those reasons, yes, but they do watch and it is hard for some people. We have clients who have medical conditions, where they have, for example, shy bladder syndrome, and it's difficult.

Mr. Tom Wappel: I fully understand that. Would it not be as intrusive to pluck a hair from someone, or are we going to wait until their hair falls? Any response?

Prof. Charlene Mandell: I think any kind of taking of somebody's blood sample, urine sample, anything, is intrusive, but obviously probably taking a blood sample or taking a hair is not as embarrassing to the person as having to stand there or sit there and urinate in front of someone.

Mr. Tom Wappel: Okay. Good.

My last comment is that on page 28 you set out an interesting.... By the way, very few people have told us about the correctional investigator; some have. Most of them recommend that he report to Parliament. We had this discussion back when. You set out a special procedure, which is rather interesting, in the hope, as you put it, of giving the correctional investigator some teeth. I take it, therefore, you feel he has no teeth. That's the bottom line, isn't it?

Ms. Cécile Toutant: I think he feels he has no teeth, or his office feel they have no teeth.

Mr. Tom Wappel: He'll tell us what he feels. You feel he has no teeth—

Ms. Cécile Toutant: Yes.

Mr. Tom Wappel: —and this would be a nice way of giving him teeth, without making it look too much like we don't like the Department of the Solicitor General, who think it's just great the way it is. Is that how I read your submission?

[Translation]

Ms. Cécile Toutant: I'd like to summarize our position. It's one that I didn't give you earlier. In fact, the Office of the Correctional Investigator does seem to register complaints or ask for corrective measures repeatedly. The requests are submitted but no action is ever taken. Basically, it's a suggestion. There could be others, but this is one that would ensure that corrective action is taken within a reasonable time.

We have made the same observations in other areas. Recommendations are made from time to time, but they are never acted on. The same recommendations are formulated year after year. We are therefore saying that there should be a mechanism which would allow people to assert themselves and demand action within a certain time period. What would this mechanism look like? We have recommended one that would certainly work.

The Chairman: Thank you, Ms. Toutant. Mr. Wappel, thank you very much.

[English]

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

[Translation]

The Chairman: Mr. Saada, one very short final question.

Mr. Jacques Saada: My colleague Mr. Wappel could perhaps help us here. Is the issue of whether or not practice is intrusive linked to the presence of another person or is it tied up with the definition that the Supreme Court gave as to what could be done for DNA testing, namely, that any image of the body is not intrusive?

The Chairman: That's something that we can look at when we draft our report. Today, we have witnesses.

Mr. Jacques Saada: I'm intrigued by the percentage you mentioned earlier: the rate of re-offending is 50% higher for APR cases. I have some figures here that indicate that the success rate... I'm going to read it in English, because it's written in English.

[English]

You say that full parole with an APR is 85%, and that is the success rate for the period remaining until the end of the sentence. Correct? I fail to understand, is it 50% more? Are you referring to the whole life of the former inmate or are you talking only about the period until the end of the sentence? It doesn't add up, if I read these figures here, and that comes from the document that was the basis of our reflection.

[Translation]

Ms. Cécile Toutant: I don't know whether Mr. St-Jean could add something on that subject or on the source of the figures. I would have a hard time answering that.

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[English]

Mr. Gaston St-Jean (Executive Director, Canadian Criminal Justice Association): It's a direct quote from the performance review board.

[Translation]

The Chairman: Mr. St-Jean, would you identify yourself, please.

Mr. Gaston St-Jean: Gaston St-Jean, Canadian Criminal Justice Association.

Ms. Cécile Toutant: He's our Executive Director.

Mr. Gaston St-Jean: The quotation you just mentioned is taken from the performance evaluation, or something similar, of the National Parole Board. It's quoted from the document. You may obtain the report directly from the Board.

The Chairman: Thank you very much, Mr. Saada.

[English]

I'd like to thank all of the witnesses. Thank you for taking the time and coming and submitting to us. Specifically, Mr. Braithwaite, we understand you're a bit of an innovator and a specialist in restorative justice. I wondered if you would do—

Mr. John Braithwaite: Before we're both embarrassed, I am the Canadian John Braithwaite; you're referring I think to my Australian namesake.

The Chairman: Okay.

Mr. John Braithwaite: Thank you.

The Chairman: Then we'll say thank you.

Thanks again to all the witnesses. We'll take a five-minute break to allow the witnesses to exit and the new witnesses to come in. Thank you again very much.

• 1706

• 1713

The Chairman: Perhaps we could get started again, please. We have another panel of two witnesses: from the Association des avocat et avocates en Droit Carcéral, Mr. Stephen Fineberg; and from the Aboriginal Legal Services of Toronto, Carol Montagnes. I understand this is your second attempt to get here. We're happy to see that you came by train this time.

Perhaps we could have submissions first from Mr. Fineberg of approximately 10 minutes, and then from Ms. Montagnes. Then we'll go to questions.

Mr. Stephen Fineberg (President, Association des avocats et avocates en droit carcéral du Québec): Thank you, Mr. Chairman. I'm from the Association des avocats et avocates en droit carcéral du Québec, the Prison Lawyers' Association of Quebec. We're an organization that is composed of Quebec lawyers whose practice is primarily in the field of prison law, and as a result, we have some familiarity with the statutes, the regulations, the policies, and the programs dealing with prison issues. We've existed since 1992, and since 1992 on several occasions we've had the opportunity to appear before committees both at the federal level and the provincial level, and we do appreciate the opportunity to appear today. It required some cooperation from your clerk to schedule this meeting, and I'm glad to be here.

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I might tell you that I've been in the field working with prison issues full-time since 1982. At the moment I'm president of our association. The association has given me a mandate to draft a brief and to present in person, which is to say that the remarks I'm about to make have not been vetted and improved by the association, but they've authorized me to say what I think reflects the experience of prison lawyers working in Quebec.

As for the brief, I must apologize for it. I really attempted to have it ready for today. It's not ready yet, but it will be coming soon. I hope you will take the trouble to read it.

I wanted to mention that I've had the opportunity to read the Canadian Bar Association's committee on imprisonment and release report. We find that brief very compelling, which is not surprising given the unrivalled experience of this team, which is outside of the system. Amongst non-system groups, surely there's no other group of people more involved in this kind of process than the people representing the Canadian Bar Association. We urge you to give the most careful consideration to the recommendations found in that brief.

Just before departing from that brief and moving on to my own shopping list, I would like specifically to endorse the first recommendation of the Canadian Bar Association's brief, which is the one dealing with a new kind of remedy entailing a reduction in the period of imprisonment or, in lieu of that, financial compensation. I see one member shaking his head in a negative fashion already.

I think it is a very well-founded suggestion. It was suggested first, as you know, by Madam Justice Louise Arbour in the report flowing from her commission of inquiry. The Canadian Bar Association follows her and has attempted in its brief to suggest ways to implement her suggestion in a practical way.

I find it difficult to oppose such a suggestion, given that the thrust of the recommendation is that the sentence intended by the court be respected. It's as simple as that. The remedy is needed in cases where an individual sentence has been rendered harsher, more severe, than the one the court intended, by reason of the behaviour of government officials, either egregious incompetence or outright bad faith. In cases like that, where the sentence the judge had envisaged has actually been departed from, there is a need to adopt some sort of measure to bring the sentence back into line with the intention of the court.

It seems to me that everyone must support such a recommendation. We do, after all, respect the rule of law. No Canadian, no matter how unsympathetic to the plight of prisoners, would want to see anyone in this country detained without a legal basis. No one would want to see someone serve a sentence whose character is more severe than that envisaged by the court, than that wished by the law.

We're talking about situations in which the sentence of the court, for extraordinary reasons, is not being respected and something else has taken its place. To bring the sentence back into line, Madam Justice Arbour proposes a reduction of imprisonment. And where there would be a risk to the public were that to take place, the Canadian Bar Association says why not financial compensation? So for the sake of respecting the rule of law and respecting the authority of the court and its role, I think such a recommendation has to be acceptable.

Is there a need for such a thing? Already the events that gave rise to Madam Arbour's commission of inquiry demonstrate that on occasion there is such a need. I myself was involved in another case less spectacular, which demonstrates the need for some sort of remedy.

An inmate named Shawn Murray, whose name I can use because it is the object of a Federal Court decision that is public, was in the special handling unit, the SHU, in Quebec and the Federal Court determined that for a period of two years he was detained unnecessarily in the special handling unit. The Federal Court used the term “arbitrary”, with reference to Correctional Service's reasons for keeping him two years longer than was necessary. The court said he had earned, if not the right, at least the privilege of being transferred out of the special handling unit two years before the court ruled on the case.

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In a situation like that, how do you repair the damage? The man was living in a special handling unit, which is the most unforgiving regime of detention in the country, for two years when he should not have been. This is not what the court had in mind. This is why an extraordinary remedy is needed. Some will say these cases abound and others will say these cases are rare. It makes no difference which side you're on; some of these cases exist and they call for some sort of extraordinary measure.

I have a kind of grab bag of isolated points—they will all be in my brief. I don't regard these points really as the kinds of argument that favour one side or the other. I've tried to identify some respects in which the current law regulations and policies aren't working the way any of you would want them to, regardless of your political affiliation or philosophy of incarceration. There are certain aspects of the law in the regulations that simply don't perform. I hope when you see the brief you'll be able to agree with at least some of those points, that you'll look at the points and say that isn't what we had in mind in 1992, and surely it's possible to do better.

Let's start with security classification. Before 1992 the same authority was mandated by the statute to transfer and assign a security level to an individual. In other words, your security level before 1992 depended on the level of security of the institution you were placed in. Since 1992, the individual security level—the security classification of the person and the institution—has been split. Authority is given over one subject matter to one person and over the other subject matter to another, and the results are anomalous. It simply does not work and should be rewritten.

The security classification is now found in section 30 of the CCRA. Unfortunately that section does not make it clear if somebody who is classified as a particular security level by the prison director can legally be kept in another kind of institution. Section 30 doesn't refer to levels of institution; it assigns a security level to individuals, and it's hard to say what that means. Different people in Correctional Service have different ideas about what it means.

The result is that some people in the system think someone classified as medium security can be held in a maximum-security prison. Some people think someone classified as a medium can be held in a minimum. When the prison director declassifies you to a lower security level, it is not obvious to anybody that the transfer authorities must follow that with a decision that is consistent. It's not clear to anyone that someone who is now classified minimum instead of medium must be shipped to a minimum if, for instance, there's a program Correctional Service wants him or her to follow in the medium.

No one knows what the situation is. If you ask different people in the system you get different answers, and this is absurd.

It's at least as absurd that when someone is presented for an involuntary transfer, that person is first considered for security classification by the director. The statute says only the director can determine your security classification. So if the director makes you a maximum-security inmate, when you get to the regional transfer authority you know pretty well what their decision will be. They're going to put you in a maximum-security institution. Are they obliged to do that by the law? As I've said, no one knows. But for practical purposes, once the director rules that your security classification has been bumped up, the transfer people are going to follow with a decision that is consistent.

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The problem is you don't receive the opportunity to make a case and reply to Correctional Service's case when that security classification is done. The security classification takes place behind your back. Suddenly you're a maximum. Then you're presented to the regional transfer authority, and for the first time information is shared. You're told what the allegations are and given 48 hours to make your response. A regional transfer board will study your reply and take a final decision. But they're going to follow, of course, what the security classification has been changed to by the director when you had no allegations, no paperwork and no input. This makes no sense.

I'm told by counsel in British Columbia it happens on occasion that a regional transfer board will not follow the decision already taken by the warden with respect to your security classification. That may or may not be true, I don't know. But in Quebec, the regional transfer authority feels itself bound by the decision taken by the director on your security classification, when you had no input and no paperwork. It makes no sense.

That whole area of the law ought to be reworked, not in favour of prisoners, not in favour of the public, not in favour of victims, but because it makes no sense. It's not serving any of us.

The Chairman: I will have to ask you for a brief summation. Then maybe you can use the trick we use around here and make your other points in answers to the questions.

Mr. Stephen Fineberg: I have many other points on the corrections side and the parole side. I could mention, for instance, that the special handling unit has no basis in law. Look at the statute and you'll find that people can be assigned to minimum, medium, or maximum security, and the special handling unit is super-maximum security. It doesn't even exist in our statute, yet people are forced to live there when there's no legal foundation for it.

Only the director can place a person in segregation. So if you think the super-maximum security has legal existence because this is full-time segregation, the director should be taking the decision, but the directors don't. The National Review Committee in Ottawa takes the decision, but they're not prison directors, so what is that thing? I think the committee ought to look at that aspect of the law also.

Anyhow, I have many other points. They'll be in the brief.

Let me take just one point from the comments I was hoping to make on parole. There is a particular problem with respect to the appeal division of the National Parole Board. The appeal division, in the minds of many people, lacks the independence it requires to do a fair job. The problem is that Quebec parole board members are selected by the head of the Quebec region and lent to the appeal division in order to sit on cases that come from Quebec. This makes no sense.

It means the Quebec region adopts certain positions, finds those positions are overturned by the appeal division on occasion, so it sends its people to the appeal division to take new decisions that are consistent with the philosophy at the regional board. So where is the independent appeal division? Yet one cannot go on to the Federal Court until one has exhausted the internal remedies, which means the appeal division. The appeal division needs to be reworked.

The Chairman: Thank you, Mr. Fineberg. We're looking forward to receiving your brief.

We'll go now to Ms. Montagnes.

Ms. Carol Montagnes (Vice-President, Aboriginal Legal Services Services of Toronto): Thank you.

Good afternoon, Mr. Chairman and members of the committee. My name is Carol Montagnes. I am here today as a board member of Aboriginal Legal Services of Toronto. We are pleased to have the opportunity to address the committee today.

Aboriginal Legal Services of Toronto is a provincially incorporated non-profit organization, governed by a community-based board of directors. Aboriginal Legal Services of Toronto, or ALST, was established to meet the legal needs of the aboriginal community in the city of Toronto. This is the largest aboriginal community in Canada, estimated at 60,000 people. ALST's mandate is to assist the Toronto aboriginal community to gain control over justice-related issues.

ALST operates three programs. They are the community council project, the aboriginal court worker program, and the community legal clinic.

The community council project is a diversion program for adult aboriginal people charged with criminal offences. The program diverts aboriginal offenders from the criminal justice system and places them before members of their own community. The members of the council are aboriginal men and women who are respected community members and who represent a cross-section of Toronto's aboriginal community. The focus of the council hearing is to address the root cause of the wrongdoing and to determine an appropriate order that allows the offender to take responsibility for his or her actions and reintegrates him or her into the community.

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The court worker program consists of aboriginal criminal, family, and youth court workers. The court workers assist aboriginal people in a number of ways throughout the court process.

The community legal clinic is funded by the Ontario Legal Aid Plan. The community legal clinic provides legal advice and representation in many areas of law, including tenant rights, social assistance, human rights, employment insurance, police complaints, criminal injuries compensation, and Indian Act matters. The clinic's mandate includes public legal education, law reform, and community organizing.

The province of Ontario has more aboriginal people than any other province or territory in Canada. Approximately one-fifth of all aboriginal people in Canada live here.

Aboriginal people, like other people, want to live in safe communities. Effective corrections and conditional release contribute to the maintenance of safe communities through the rehabilitation and reintegration of offenders.

In the Corrections and Conditional Release Act there is one specific legislative reference relating to the National Parole Board with regard to aboriginal offenders. That is subsection 151(3), which reads:

Policies adopted under paragraph (2)(a) must respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and Aboriginal peoples...

Legislative references in the Corrections and Conditional Release Act relating to Correctional Service Canada include sections 80 through 84. These sections require Correctional Service Canada to provide programs and services to meet the needs of aboriginal offenders, to enable the minister to make arrangements with aboriginal communities for the care and custody of offenders, to establish and maintain a national aboriginal advisory committee, to ensure that aboriginal spiritual leaders are accorded the same status as other religions and leaders, and to enable aboriginal community involvement in the release plans of those offenders seeking to be conditionally released to an aboriginal community.

Research on aboriginal offenders has consistently shown that aboriginal offenders are more likely than non-aboriginal offenders to be serving their sentence in an institution rather than in the community on supervision, that they waive their full parole hearings at a higher rate than non-aboriginal offenders, that they are less likely to be granted full parole, that they are less likely to complete their supervision period in the community, and that they are more likely to be returned to prison for a technical violation of release conditions. These problems are not new.

In order to begin to address these issues, Aboriginal Legal Services of Toronto supports the following, and here we refer to the Ontario region in particular: more education of aboriginal offenders regarding the parole process and the criteria for release, so that the offenders can understand the requirements and make appropriate preparation for parole; more education of aboriginal communities regarding the parole process and criteria for release, so that the communities can be informed participants and know what their involvement in the process can be; and more cultural awareness sessions and opportunities for National Parole Board members in order to develop a better understanding of aboriginal offenders. More National Parole Board members who are aboriginal would be of benefit too. In Ontario there is one part-time member of the National Parole Board, Ontario region.

We support more education regarding aboriginal programming for National Parole Board members so that they can have a better understanding of the value of the programs, compared to the more familiar non-aboriginal core programs in the correctional institutions.

We support a review of the reasons for aboriginal technical violations of parole.

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We support the establishment of a larger aboriginal issues unit within Correctional Service Canada to, one, deal with program development and education, and two, to develop working relationships with aboriginal justice organizations and with aboriginal communities. This is particularly important for the implementation of sections 81 and 84 in the Ontario region.

We support the establishment of a reasonable plan for the implementation of section 81, which enables arrangements to be made with aboriginal communities for the care and custody of offenders. A guide has been prepared for the aboriginal communities. However, it is over 500 pages long.

We support the establishment of a plan for the development of section 84, which enables aboriginal communities to be involved in the release plan of offenders seeking conditional release to an aboriginal community.

Last but not least, we support the increased use of regional aboriginal advisory committees for input on correctional as well as conditional release issues. We note that in Ontario the Ontario Aboriginal Advisory Committee has met once in the 1998-99 fiscal year.

Thank you.

The Chairman: Thank you very much, Ms. Montagnes.

Now we'll go to Mr. Gouk for a seven-minute round.

Mr. Jim Gouk: Thank you, Mr. Chairman.

I'd like first to explain to the witnesses that at this point I just have one question for each, and then I'm going to leave, which is no disrespect. I broke my tooth about a half an hour ago, and it's crying out for attention, and I hear it.

Mr. Fineberg, I would start with you and your contention that we should let certain prisoners out early or give them financial compensation if they've been treated other than the way the court intended them to be treated. When the court sentences someone to six years, it doesn't sentence someone to three years of maximum with six months of segregation and a year of medium and so on. So I'd have a hard time figuring out how you determine it's not what the court had in mind.

Likewise, just to use one example of an area I have a little problem with, for first-degree murder the court sentences someone to life in prison with no possibility of parole for 25 years. We have someone like Paul Bernardo, who is going to be able to apply for an early release after 15 years. I have to assume that's not what the court had in mind either. So according to you, if I interpret this literally, he should not be allowed to do that because that's not what the court sentenced him to, and we should comply strictly with what the court obviously had in mind.

What is your justification for coming up with an interpretation of what the court had in mind when there are obviously so many anomalies to it?

Mr. Stephen Fineberg: I am presuming that what the court had in mind was that the person serve a certain number of years as a sentence, not necessarily in prison but in conformity with the law. I'm sure that when the court imposes the sentence, the court expects the law is going to be respected with regard to the person's level of security and with regard to all the person's interests, rights, and privileges. When an individual's rights and privileges are not respected, when they're abused in an unconscionable way by the officials who are supposed to preside over the individual's sentence, then the court's will has not been respected. That clearly is not the intention of the court.

In other words, the court cannot know that an individual should spend a certain portion of his or her sentence in minimum security. What the court presumes, I submit, is that the person who finds himself or herself in minimum should be in minimum, and a person who finds himself or herself in a super-maximum penitentiary belongs in a super-maximum penitentiary. So if through abuse by government officials the person is obliged to stay in a super-maximum penitentiary when he should not be, then I submit that is not the kind of sentence the court had in mind. The court expected the law to be respected.

Mr. Jim Gouk: Okay, I hear your answer. You haven't got a convert, but I hear what you're saying.

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Ms. Montagnes, in your opening, you talked about diverting aboriginal people from the justice system to bring them back to be dealt with in their own community in diversion programs, and particularly in the case of the Toronto aboriginal community. That's a term that's used to described the fact that there's a lot of aboriginal people in Toronto. There are not reserves or bands or whatever per se.

What I'd like to know is what types of offences we're talking about at the upper end. I guess what I'm looking for is the justification, not just for me but for people in general. Why would an aboriginal person who committed a particular type of offence be diverted not through an aboriginal justice program under the reserve, but in metro Toronto—where there happens to be a lot of aboriginal people living—and be treated differently from the way a different offender would be treated?

Ms. Carol Montagnes: There are two points I would like to make there. First, before the community council diversion project got off the ground, one of the things we had to do was show that indeed there was an aboriginal community as such, a real community in Toronto, as opposed to there just being a lot of aboriginal people who happened to live there. We were indeed successful in showing that there is a real community in the city.

The community is indeed a community that was interested in having some more effective way of dealing with some of the offenders who were going before the courts, and often they were repeat offenders. Many of the charges that have been dealt with to date by the community council have been minor offences, but we certainly haven't been dealing with first-time offenders. These are people who have gone to court many times, but because of the minor nature of the offences, they have been given little of the court's time, have often been given meaningless dispositions for their cases. There was no deterrent effect, nor was there any support given to the offender.

Aboriginal Legal Services of Toronto, through the community council, wanted some way to address the reasons underlying why certain aboriginal people were repeatedly in conflict with the law. It was obvious that just being arrested and going before the court time and time again was having no good effect. Through the community council, the council members are able to hear from the offender. In certain cases, if there's a victim, the council hears from the victim as well. It hears from family members and from other people who have been involved with the offenders. It can therefore try to determine what the problem is, what the root cause is, and it can try to address those causes through dispositions such as getting counselling within the community when, for example, the offender requires counselling for an alcohol problem.

Mr. Jim Gouk: As a complete variation on a jail sentence, they would be dealt with in—

Ms. Carol Montagnes: Often with these offenders, if they were given jail time at all, it would be just a matter of days.

Mr. Jim Gouk: So you're simply talking about very minor offences.

Ms. Carol Montagnes: Yes, minor offences at this point, although there is nothing within the council's mandate that prevents it from dealing with more serious offences. The council, however, wants to be sure there are those resources in the community to address the issues, the problems of the offender, within the community before it takes on those more serious offences.

Mr. Jim Gouk: Thank you.

The Chairman: Thank you, Mr. Gouk.

Mr. Wappel.

Mr. Tom Wappel: Thank you, Mr. Chairman. Hopefully, I'll be relatively brief. I just have a couple of questions.

Mr. Fineberg, I look forward to receipt of your brief. I always find it interesting to read what people say when they work in and with the system day in and day out. I wonder if I could ask you to consider offering a brief example of the points you make, just as you did today with respect of the case of Shawn. You make a point, so perhaps you could give a concrete example of why it comes to mind. That's certainly helpful to me.

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What I want to ask you about is your point on section 30, because I didn't quite get it. I think I understand that there's nothing saying that just because a person is assigned a security classification, he will be put into a particular institution. You then went on to say that in terms of being assigned a security classification, the inmate doesn't know why he is assigned that. I don't understand that, because it's totally at odds with subsection 30(2), which requires the service to gives reasons, in writing, for why a person is classified in a particular way. Are you saying that notwithstanding the mandatory nature of subsection (2), the service is not doing that?

Mr. Stephen Fineberg: No, sir, what I'm saying is that subsection (2) requires the reasons once the decision is taken. For the prisoner, this is a pointless exercise. What one wants is the allegations, the information and arguments that weigh against your interests, when there is still time to defend against the allegations, information and arguments, in order to reply and to have some input before the decision is taken. This is the way the transfer decision itself is treated.

When you are recommended for a transfer, you receive a transfer notice—what Charlene Mandell would call a 48-hour notice. That gives you the opportunity to draft and submit your response, so that the decision-maker can take into account any possible explanations available to you. This is not done when your security classification level is established. Therein lies the problem, because that's when the real decision takes place. Once you've been bumped up to maximum as an individual, it's clear that the transfer board is very likely to follow—or may feel compelled to follow—with a transfer to a maximum-security institution. So by giving you the reasons for your new security classification after it's done, you have no opportunity really to—

Mr. Tom Wappel: What about at the first instance? There's nothing in section 30 that permits input from the prisoner. The service makes the decision.

Mr. Stephen Fineberg: That's correct.

Mr. Tom Wappel: Are you suggesting that right at the intake level, the prisoner should have the opportunity to make submissions as to which of the three categories the prisoner should be put into?

Mr. Stephen Fineberg: Oh, I see what you refer to. You refer to the initial placement.

Mr. Tom Wappel: Section 30 is what you referred to. As I understand it, that's the initial placement.

Mr. Stephen Fineberg: Yes.

Mr. Tom Wappel: I'm not taking a position. I just want to understand what you're saying. Are you saying that the prisoner should have input at the intake level?

Mr. Stephen Fineberg: A prisoner does now. There's no complaint there. When you arrive at the reception centre, you are interviewed. At that point, the officers who are going to be making recommendations as to your initial placement don't have much information about your crime. They don't have transcripts from the court yet, and they don't have the police reports. Very often, an individual has been on bail for a year and sometimes longer. The people dealing with the individual have no note to that effect, so you bring it to their attention. They find out that you were respecting all the conditions of your bail for a year, and you're much more likely to be classified appropriately when the reception centre has that information.

So you do have the input, but I'm talking about another scenario. I'm talking about involuntary transfer, and the involuntary transfer—

Mr. Tom Wappel: Just hold for one second. Section 30 says “The Service shall assign a security classification of maximum, medium or minimum to each inmate...”. Period. I don't see that there's any room in that statement for input by the prisoner. It may be that the prisoner gets input as a matter of ordinary practice, but there's no statutory authority for that input.

All I'm asking you is whether you want statutory authority for that input. If so, where do you want it? Do you want it in section 30, at the initial classification, and then at each change of classification? You don't have to answer me now; you could put this in your brief. Maybe I'm just not understanding what you're saying, but right now I see nothing in section 30 that permits the prisoner to say he shouldn't be in a maximum, he should be in a minimum.

As a matter of practice, there may be discussions at the intake level, etc., but there's nothing in law that mandates that. Since you've asked for a law for the SHU, I'm asking whether you want a law for the input.

Mr. Stephen Fineberg: In other words, you're asking a question that is not really in response to the point I was making, it's a different point. The point I was making concerned involuntary transfers.

Mr. Tom Wappel: But that isn't in section 30.

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Mr. Stephen Fineberg: When one had already been classified by the Correctional Service—for instance, one was in a medium, and then because of specific events one is being transferred from a medium to a maximum obviously without the prisoner's consent—in a procedure like that when one was already classified medium and a need suddenly arises to transfer to a maximum, the prisoner should have input. By splitting the security classification question and the transfer question, at the moment the input isn't there. I was referring to those situations.

Mr. Tom Wappel: Okay.

Mr. Stephen Fineberg: You're already classified and you're being bumped up to higher security, usually on the basis of confidential information you're not able to see. You at least need to know what the nature of the allegations is so you can make some explanation. Sometimes the authorities who are planning on revising your security level higher will discover you weren't even in the part of the institution they had in mind when the event occurred, if only you have the opportunity to discuss it in some way.

Mr. Tom Wappel: All right. Did you have an opportunity to take part in the consultations the Solicitor General held?

Mr. Stephen Fineberg: I did.

Mr. Tom Wappel: Did you make submissions that might be some of the submissions that are going to be in your brief?

Mr. Stephen Fineberg: I did not make any submissions in writing, but in person, many.

Mr. Tom Wappel: Did you review the report, and are you happy with the way the report characterizes the consultations?

Mr. Stephen Fineberg: My reaction was that the compte rendu, the minutes formulated of the session in Montreal were quite accurate, and that by the time they rose to the national level a lot of what was said in Quebec had fallen out.

Mr. Tom Wappel: This is important, because the implication is that the report adequately distils the views of people across Canada.

Mr. Stephen Fineberg: Let me give you one example. I made a point at the meeting in Montreal, I believe it was last May, about unescorted temporary absences and the way the parole board abdicates its authority to the Correctional Service.

Very briefly, the statute says that in order to award unescorted temporary absences, the board must be satisfied that the public is protected and a number of other things have been done, and that there is a well-structured release plan. The board says, “A well-structured release plan to us means a plan prepared by the case management team of the Correctional Service and approved, recommended by the case management team.” That means if your case management team of the Correctional Service will not structure a plan and approve it, then the board cannot vote in favour of unescorted temporary absences because there is in its opinion no structured release plan. Correctional Service can shut the door before the parole board ever has the opportunity to exercise the authority the legislator wanted to give the parole board.

I made that point in Montreal, and the gentleman who was responsible for the consultation said, “Interesting point, I hadn't thought of that.” He made a note of it, but I don't find it in the national report, and I think it's a valid point.

Mr. Tom Wappel: It's important that we know that.

The Chairman: We'll let Mr. Wappel sharpen his pencil for a minute, and we'll go to Mr. Saada.

[Translation]

Mr. Jacques Saada: Mr. Fineberg, you made a remark concerning the National Parole Board in Quebec and the Board's appeal body. I believe I heard you say that the members of appeal boards are in fact often members of the first-level board who are asked to rule again on cases which they have already decided.

Mr. Stephen Fineberg: Not exactly. Not the same cases, but cases that come from Quebec. That's the problem.

The way things work now is as follows: there are several permanent Board members in the appeal division of the National Parole Board, including one from Quebec. Approximately two years ago, he sat as a Board member in the Quebec region. Today, he is in the appeal division and deals with cases from Quebec.

In our opinion, this individual who comes from Quebec, and who sat on the Board for years with colleagues from Quebec, should not deal with cases coming from Quebec but should concentrate on cases from other regions. But that's not the way it works.

The appeal division occasionally assigns him to files from Quebec, which means that he is ruling on decisions made by his former colleagues.

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This isn't really an old practice. Last October, an individual sat on the Board in Quebec with the vice-chair of the Board for Quebec; in November, this person turned down a Quebec case.

Mr. Jacques Saada: It's very important that I get this right. You're saying that, if a person from Quebec who's responsible for a file at the first level is appointed in Quebec at the second level, that is, the appeal body, then there's a possibility that this person will see the same cases twice. He or she may also end up working on decisions made by colleagues that he or she knows very well and, consequently, the objectivity of the appeal body may be tainted.

Mr. Stephen Fineberg: That's right, and this will undermine justice, at least in appearance, as well as the image that citizens have of the appeal division.

Mr. Jacques Saada: Okay.

Mr. Stephen Fineberg: Furthermore, there's another problem that I've already mentioned. One Board member has just been loaned to the appeal division for several weeks. He normally sits in Quebec.

Mr. Jacques Saada: No, I understood that.

Mr. Stephen Fineberg: What makes the situation worse, is the fact that the Board member in question is on contract. I'm not speaking of him as an individual; I'm not challenging his personal integrity. I'm talking about a structural problem, about the appearance of justice.

Since he is on contract, he works when he is assigned to files by the vice-chair of the Quebec region. The vice-chair has now decided to send him to Ottawa for a few weeks to hear certain cases, and then he'll return to Quebec. This person works only when he is assigned to files by the Quebec vice-chair.

And so citizens who are completely impartial are going to say: "Well, the Quebec vice-chair is able to influence the appeal division, in a sense, to control the appeal division." Is that what's happening? We cannot know, but justice is not being seen to be done.

Mr. Jacques Saada: Is this the only province or region where it happens?

Mr. Stephen Fineberg: According to my information, they are always short of resources at the appeal division. They are thus obliged to borrow people from the regions occasionally. Ontario and Quebec are the regions that most often lend Board members to the appeal division simply because they are closer than the others. Therefore, because of economic considerations, for practical reasons, the appeal division sacrifices the appearance of justice. That's our point of view.

Mr. Jacques Saada: Thank you.

The Chairman: Thank you, Mr. Saada.

[English]

Mr. Grose.

Mr. Ivan Grose: Thank you, Mr. Chairman.

Mr. Fineberg, the first two points you made are a little obscure for me because of legal fine points; at least they've been made so by my colleagues. I don't really have an awful lot for you. I wish I had your brief. I'll find it fascinating and find a million questions in there when I get it.

Do you feel you have any one point that you haven't been able to make that you and I might be able to discuss?

Mr. Stephen Fineberg: In other words, a point more of a question of approach or orientation rather than a technical point?

Mr. Ivan Grose: Take it out of the brief that I don't have.

Mr. Stephen Fineberg: What about this, then?

Mr. Ivan Grose: You must have a hobby horse of some kind.

Mr. Stephen Fineberg: There's been some discussion already today of parole by exception. This is a measure in the law that allows somebody to make an application to the National Parole Board although he or she would not normally be eligible yet under the law.

I want the committee to understand that until 1992 it was always possible for someone who was subject to a deportation order to make such an application, along with other kinds of people, other categories of people—for instance, people who were terminally ill. There were certain categories of people who were eligible to make an early application, which does not mean that the parole board is obliged to confer parole. It means only that the board is authorized to study the case before the ordinary eligibility date. Until 1992, people with a deportation order were amongst those exceptional cases; since 1992 they have not been, and I think this is an error that serves no one's purpose. I think this is the kind of thing we could all agree on.

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People who are subject to deportation orders, in some cases, are people who deserve the earliest parole possible, and in other cases they are people who deserve no parole at all. There was a time when the National Parole Board could evaluate all the relevant information, take a well-informed decision, and distinguish between the people who were deserving and the people who were not. Since 1992 everyone has been treated the same way. No one with a deportation order is eligible until one-third, which means someone who does nothing to command our sympathy and respect, who acts in an entirely irresponsible way after conviction, finds himself in the same position as someone who does everything possible to help himself and tries to turn his life around.

I think the board should be authorized again, as it was before 1992, to make distinctions between people. There are many cases of people from outside the country who have problems with the language, have no relatives in North America, receive no visits and follow no programs because they cannot. If they could follow programs what would be the point, since they're not going to be released into Canada anyway? They can't prepare themselves for a gradual reintegration into Canadian society because they're not going to be here.

So there are people who spend long years here doing nothing. Some of those cases would command your sympathy, and others would not for a moment. All we are proposing is that the parole board again be equipped to make distinctions, and where people deserve an opportunity, they receive the opportunity. If they don't deserve it, the news will be bad and they will learn that if you don't act responsibly, accept responsibility for your behaviour and make the changes, you won't get what is available under the law.

We think it's in everyone's interest that Canadian taxpayers not pay when people are detained for years at a time in a country where ultimately they won't be released, when they're far from every kind of support Canadian prisoners have. It serves no purpose when it is a truly sympathetic and meritorious case.

Mr. Ivan Grose: Thank you very much. You've made a very good point. I always ask whether a point can be sold to my constituents back home, and that's one that can. I think it's eminently sensible that action be taken.

I know some of my people would say “I don't care what he's done or how he's behaved in prison, get rid of him, send him back, I don't want to spend any more money on him.” Quite frankly, I don't go along with that completely, but I do go along with your idea that a fellow who is never going to integrate into our society anyway should be given early parole before the eligibility date, or at least be allowed to apply for it and go.

Mr. Stephen Fineberg: If he's deserving—that's how you sell it, to my mind; you explain. If they're deserving, we would all want them to have it. If they're not deserving, they'll be slapped down and they'll learn they're going to suffer for their irresponsible behaviour and their continuing attitude.

The Chairman: Thank you, Mr. Grose and Mr. Fineberg.

Mr. Myers.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman.

Ms. Montagnes, on page 4 of your brief you speak of the necessity of a larger aboriginal issues unit within Correctional Service Canada. You highlight two points: the program development on the education side, and the development of working relationships with aboriginal justice organizations and communities. I wonder if you could highlight a little more what you believe should be done in this area. It seems to me the points you're making are important, and perhaps you could augment what you said before.

Ms. Carol Montagnes: On the first point, to my understanding, in dealing with the program development in education, there is one regional adviser working in this area without a lot of support. He is tremendously overworked, in my opinion. He's doing his darndest to try to look after the Ontario region for CSC.

On the second point of developing working relations with aboriginal justice organizations and aboriginal communities, I mentioned in the brief the size of the aboriginal population here in Ontario, and I'm sure you have some idea of the number of aboriginal communities there are. In developing working relationships, it's not something you just send out some correspondence to all the communities on, hope they read it, and never have time for any follow-up or any further personal work with them. If working relationships are going to be developed with some of the aboriginal communities and aboriginal justice organizations in the Ontario region, there has to be some way of implementing them.

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I mentioned, under section 84, trying to have the aboriginal community responsible for the care and custody of offenders in the community. That looks fine on paper, but to date there has been only one of those contracts put into place, and I think that reflects directly on the person power CSC has in making contact with the aboriginal communities and trying to get some agreement in place.

The act has been in place for more than five years now, and if you have only one project or one contract you can point to in all that time under that particular section in the whole region of Ontario, something is very wrong.

Mr. Lynn Myers: Thank you very much.

The Chairman: Thank you, Mr. Myers. Mr. Wappel is next.

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

I have just two questions for Ms. Montagnes. Thank you for your very concise brief.

On page 1 you talk about the community council project. Just so I understand it, it's a diversion program for people charged with criminal offences. Now, there's a difference, as you well know, between people charged and people convicted. Is this project taking people out of the criminal system before they're convicted, and does it mean they will never have a criminal conviction, or are they dealt with after conviction?

Ms. Carol Montagnes: They are charged, and when they appear in court there's a protocol with the crown attorney. If the crown attorney agrees and the offender himself or herself agrees, then the offence can be diverted to the community council project.

Mr. Tom Wappel: Then there's never a conviction.

Ms. Carol Montagnes: If the person is diverted, the charge is stayed and the person goes through the community council hearing. If that person follows through on the undertaking given to the community council, the charge is withdrawn. If that person does not attend the hearing or does not go through with the disposition as agreed, the charge can go forward in court.

What usually happens is that the person is called again to come before the community council and asked for some explanation. If a person has been diverted once through the community council and does not follow through with his or her undertaking, they lose the opportunity to be diverted at any time in the future, should they come into conflict with the law.

Mr. Tom Wappel: Thank you. On page 4 you ask for a review of reasons for aboriginal technical violations of parole. I don't quite understand that phrase. Could you give me some examples of technical violations of parole and then some examples of aboriginal technical violations of parole?

Ms. Carol Montagnes: Aboriginal people, as it says here, are more likely to get back into the institution because of a technical violation rather than by reoffending.

Mr. Tom Wappel: Like what?

Ms. Carol Montagnes: It could be because somehow they don't go along with the conditions that have been put in place for their parole.

Mr. Tom Wappel: How is that technical? If you're told to come in by 11 p.m. and you come in at 2 a.m., that's a breach of your conditions of parole. That's not a technicality.

Ms. Carol Montagnes: The technical violation is the wording that's used in the consultation materials presented for the review of the CCRA. That's not my wording.

Mr. Tom Wappel: Okay.

The Chairman: Excuse me. So the distinction is between a violation of conditions and a reoffence under the Criminal Code or something.

Ms. Carol Montagnes: Exactly.

Mr. Tom Wappel: Thank you.

The Chairman: Mr. Fineberg, do you have a comment on that point or another?

Mr. Stephen Fineberg: Yes, allow me to just add something to that quickly.

Section 135 of the statute says people should be revoked where, because of their behaviour during the period of release, they constitute an undue risk of recidivism. It doesn't say that because a person has breached a special condition or a standard condition they should be revoked. They should be revoked if their behaviour demonstrates that the risk is now unacceptable.

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One good indication that the risk is greater is that they're not respecting their conditions, but it's only an indication. That's why I think it's possible to make a distinction between a technical violation and a violation that really does bear on the risk.

If somebody arrives back late, the presumption is they're out of control and they have no intention of respecting the rules of the house. Because the risk is greater, they end up suspended. Sometimes the risk has not been increased at all, so in a technical way the conditions have not been respected. But sometimes it has no bearing whatsoever on the risk, so that would be a technical violation. If it results in a suspension, I can see someone complaining about suspensions on the basis of technical violations.

Mr. Tom Wappel: I'm still not clear. Are you suggesting there's systemic discrimination against aboriginals, in that more of them are pulled back and have their parole revoked than ordinary prisoners? I don't understand your phrase “aboriginal technical violation of parole”.

Ms. Carol Montagnes: We are suggesting that we are in support of a review to look at the reasons why aboriginal offenders are brought back into the system more often than non-aboriginal offenders for what are termed “technical violations”.

Mr. Tom Wappel: Then you are saying aboriginal offenders are brought back into the system more often than non-aboriginals.

Ms. Carol Montagnes: Yes.

Mr. Tom Wappel: Okay. Do you have statistics to back that up?

Ms. Carol Montagnes: That is based in large part on the materials that were developed for the consultation.

Mr. Tom Wappel: Do those materials have statistics that back up that bold statement?

Ms. Carol Montagnes: Yes, indeed. There was also a document prepared for the consultations specifically on aboriginal offenders and the whole report. If you like I can give you a copy. It's entitled Aboriginal Offenders.

Mr. Tom Wappel: I think that would be interesting, because that's an allegation of racism.

The Chairman: Yes. Our researchers have indicated we have those statistics, so we'll be able to review them.

Mr. Grose.

Mr. Ivan Grose: Thank you, Mr. Chairman.

I have a couple of questions, Ms. Montagnes.

The community legal clinic is funded by the Ontario Legal Aid Plan, and we all know the problems the Ontario Legal Aid Plan has had. Has your funding been cut?

Ms. Carol Montagnes: No, but I'm sure you're aware the new corporation will be called Legal Aid Ontario. It will be interesting to see what happens.

Mr. Ivan Grose: It's in the lap of the gods whether or not it's continued. Thank you.

I have one more question. At the bottom of page 2 of your brief, it reads:

Policies adopted under paragraph (2)(a) must respect gender, ethnic, cultural and linguistic differences

—I think I understand that—

and be responsive to the special needs of women

—I dare to say I think I understand that—

and Aboriginal peoples...

I may again be asking this on behalf of questions I get asked. I know I've asked this question before and I get different answers. What is your view of the special needs of aboriginal people? I'm thinking about aboriginal people in the way my people back home do—living in large cities such as Toronto. In that society, do they still have the special needs, and if so, what are they?

Ms. Carol Montagnes: Yes indeed, and when one reads the very exhaustive Royal Commission on Aboriginal Peoples, that five-year royal commission, I think it becomes quite clear in the area of justice what those special needs are. I think it begins with the very different world view, as the royal commission calls it, of aboriginal peoples toward what justice really is.

There I think you have something that would fall within the restorative justice that was mentioned earlier today. It also pertains to the development of the community council, where a person who is an offender comes before someone, and not just the offence is dealt with but the offender as a whole, within the context of the family and the community. The problem is addressed in that holistic manner, rather than the focus being just on the individual and the individual offence.

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Mr. Ivan Grose: Unfortunately, I'm reasonably new to this committee and I haven't had a chance to read the royal commission report. Would this be somewhat similar to the diversion program we're trying with young people, to get them off to the side of the system? Young people have special needs and need special handling. Would it be the same idea as that, diverting them from the general system of justice to see if matters can be handled there?

Ms. Carol Montagnes: It would certainly be similar in the sense that one would want an effective way of dealing with the offender, although I think one of the big differences between the pilot projects that have recently been announced for implementation here in Ontario under the alternative measures is that they're specifically for first offenders, whereas something like the community council wants to deal with those people who, it appears, are getting into trouble time and again—the repeat offenders.

Mr. Ivan Grose: It seems reasonable to me. Thank you very much.

The Chairman: Thank you, Mr. Grose.

Are there any other questions?

Thank you very much to the witnesses, Mr. Fineberg from the Association des avocats en droit carcéral, and Ms. Montagnes from the Aboriginal Legal Services of Toronto. We will look forward to receiving your brief, Mr. Fineberg.

The meeting is adjourned.