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EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 6, 1997

.0928

[English]

The Chair: Order, please.

Mr. Bellehumeur.

[Translation]

Mr. Bellehumeur (Berthier - Montcalm): At the steering committee meeting, there was discussion of the letter I sent to your constituency office and to your Ottawa office on January 9, 1997. For the minutes, I will read it to you, as it is very short.

The Airbus affair and the recent disturbing revelations to which it has given rise have raised so many questions in the public mind and have so seriously challenged the credibility of the Canadian government that the committee you chair is duty bound to examine the matter carefully.

That is why I am asking you to call a meeting of the Justice and Legal Affairs Committee at the earliest opportunity so that we can hear and question all persons involved in this matter and shed some light on it.

Here are the names of a few of the people the undersigned would like to question:

In view of the urgency of this matter, I would request that you give it your immediate attention.

I respectfully await your reply.

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The Airbus affair was indeed discussed at great length in January, and it has been monitored closely by the Official Opposition. We questioned the government about it on several occasions, and not only since the reopening of Parliament after the Christmas holidays. For example, we questioned the Minister of Justice in June 1996 - I remember it very well because I was studying the case - , after we had heard on the grapevine that there was the possibility of an out-of-court settlement. We wanted more details. Mr. Rock told us in the House that there was no possibility of this and that if he had taken action in the matter it was because it was a serious one. An out-of-court settlement did not appear to be in the offing.

A few months later we heard that indeed there was going to be an out-of-court settlement. The lawyer's legal fees, which stood in June 1996 at $250,000, were now approximately $1 million. When you add to this all the government expenses, and the expenses of all of those who worked directly or indirectly on this case at the request of Mr. Rock and Mr. Murray, the RCMP Commissioner, I believe that when all is said and done, the case will have cost the taxpayer several million dollars. We will no doubt have the actual figures at some point.

And yet, in a parliamentary system like ours, someone ought to be held accountable for such monumental blunders. If there had not been a blunder, the Department of Justice, the Solicitor General of Canada and the RCMP would not have apologized. I do not believe that having two ministers, not junior ministers, but senior Cabinet ministers, apologize for having undertaken actions or an investigation when they ought not to have done so is satisfactory for the Canadian taxpayers. It is very nebulous. Furthermore, a reading of the statements made by Mr. Rock,Mr. Gray, Ms Bourgon and Mr. Spector does not make anything any clearer. These people contradict one another; one claims to have known for eight months, but thought everybody knew, and so said nothing... The ball is being bounced back and forth and nobody is willing to take responsibility.

The Standing Committee on Justice and Legal Affairs is not a puppet committee; this committee does not waste the time of government MPs and backbenchers. Aware as it is of the relationship between the Prime Minister and Mr. Rock, who definitely has no intention of conducting an investigation, as was requested in the House of Commons during question period on a number of occasions, the Standing Committee on Justice and Legal Affairs should take the initiative and, as provided in the Standing Orders, summon these people to determine what really happened in the case.

It is a serious matter. Someone at the RCMP took the initiative to send a letter to the Swiss authorities to say that there were suspicions that bribes had been paid to a former prime minister of Canada. This is extremely serious. Mr. Murray, the Commissioner, the head of the RCMP, could not be unaware of the fact that his men were investigating a former prime minister, just as it is impossible for the Minister of Justice and the Solicitor General to have been unaware of it. That being the case, it was also impossible for Ms Bourgon, particularly in view of Mr. Spector's allegations, and forMr. Chrétien to also not know about it.

To elucidate the matter, these people need to be questioned. They must come before us so that we can ask them questions and hear their replies. Right now, the ball is being bounced back and forth. Things are bleak. Virtually nothing is known about the case. The more people speak, the vaguer it becomes. One thing, however, is certain: there will be a bill to pay at the end of the line and it will not be the Liberal Party of Canada paying it, but Canadian taxpayers.

I therefore very respectfully submit to the Chair, that we should make haste and, with a full knowledge of the facts and the powers of our committee, spend the time required to study the matter and question these people.

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Perhaps other people could be added if necessary to truly clarify the issue. I have not consulted the government in connection with doing so.

To conclude, I would remind you of an investigation conducted by this Parliament: the Jacob case. I think you will agree that there was no nonsense on that matter. An expert was hired; witnesses were heard; one after another, they came to state whether or not Mr. Jacob, a Bloc Québécois MP, deserved virtually to be hanged. This was fun, because we had a nasty separatist, a member of the Bloc who had said something that did not cost the taxpayers anything.

In the current case, the Airbus affair, there has been a blunder that is costing millions of dollars and we are being told that there is not enough time, that it is not serious enough, that the case is pending before the courts, that an attempt has been made to deal with it and to keep damages to a minimum, etc. It's a load of bull! The matter needs to be examined very closely. The people need to know what really happened, and in particular the person responsible needs to be fingered.

The irresponsible person who took the decision is perhaps still among you, is perhaps still the Commissioner of the RCMP, is perhaps still at the RCMP, or work at the Department of Justice or at the Sollicitor General. It was perhaps Ms Bourgon who did not do her work. In fact, according to her, it was Mr. Chrétien who was informed and did nothing, which is even worse.

I can understand why you do not want this whole affair clarified. I understand why, given the usual arrogance of the Liberal government, you would not want to reopen the wound. But the people want to know. Because the Official Opposition is doing its job in opposition, the Airbus affair needs to be examined as quickly as possible.

I so move formally to the Chair.

[English]

The Chair: Thank you, Mr. Bellehumeur.

Mr. Ramsay, I know you want to get back to your guns. Did you have something to say?

Mr. Ramsay (Crowfoot): I think there's merit in the motion, but I think it's absolutely naive for us to think for a moment that this committee will move on anything of this nature. Although we would like to think the committee is independent, and we're told it's independent, we'll see what the other members here have to say about this and how they vote.

There are things about the Airbus situation that the public are concerned about. Although I've looked at the file and I understand the process of the file to a certain degree, there are questions I'd like to ask some of those who were involved in it.

Madam Chair, I support the motion. I'd like to get back to my subcommittee, because we're just finishing off. I have nothing to say other than that there are areas of concern that the justice committee does have the authority to examine, but I don't have much faith that the government members will take a serious look at this or look at it in any other way than simply to vote it down and -

Mr. Rideout (Moncton): That's not fair. Madam Chair, it's not fair to prejudge what we're going to decide now.

Mr. Ramsay: Then surprise me.

Mr. Rideout: Let's get on -

Mr. Ramsay: Then surprise me.

Madam Chair, why is he interrupting?

Mr. Rideout: Just because we differ with you doesn't mean that we aren't -

The Chair: Order! You know, Mr. Rideout -

Mr. Rideout: I'm sorry, I just lose myself every once in a while.

The Chair: You had too much coffee this morning.

Mr. Ramsay, were you finished?

Mr. Ramsay: Yes.

The Chair: I must be funnier than I think I am; I didn't get that.

Mr. Discepola.

Mr. Discepola (Vaudreuil): Thank you, Chair. I do think it's presumptuous to judge what we're going to say, but I want to lay out some facts.

There was a civil case and a criminal investigation, and let's not mix up the two. In the civil case you had a settlement that was amicable, that saved taxpayers potentially tonnes of money. I don't buy the argument from the Bloc Québécois that Canadian taxpayers got shafted in this. When it comes to the legal costs, we all know that if it had gone the full two or three years in hearings it would have cost us much, much more.

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But in that civil case, you had a full apology from the Canadian government, that satisfied the former Prime Minister totally. In that public settlement, which, don't forget, was printed in all the newspapers, it was indicated that Mr. Mulroney himself admitted that the letter that was sent to the Swiss authorities followed normal procedures, procedures that were used even in his own government.

Since then our Minister of Justice has plugged that supposed weakness in the justice system. Not only that, Madam Chair, but our government has also named a third party to review independently the full system in itself. So I think we have taken concrete action.

I understand, Madam Chair, that the members of the opposition would love nothing but to see some heads roll, but I think at this stage we're trying to address, as the Minister of Justice stated in the House of Commons, some of the weaknesses in the system to make sure those loopholes are cleared.

Second, Madam Chair, there is an ongoing investigation. The RCMP are still continuing. Even the former Prime Minister Mulroney admitted that the RCMP should be above the politics. For the members of the opposition to insist and try to insinuate that whether the Solicitor General himself or the whether the Justice Minister himself or even whether the Prime Minister should have had knowledge and should have acted on it - it's false. Politicians should not be above the law; therefore we as politicians, at that level, would never get involved.

The RCMP have to do their work. They're in the process of investigating, with the blessings of the former Prime Minister. Let's let them do their job.

I hear different words here: I hear words such as enquête; I hear words such as ``I have a lot of questions.'' If you want to ask questions, Madam Chair, I would propose to the members of the opposition that very shortly, I believe within several weeks, we're going to be studying the estimates.

You have ample opportunity to question the Solicitor General; you have ample opportunity to question the Minister of Justice; you have ample opportunity -

Mr. Ramsay: Ten minutes.

Mr. Discepola: No, I'm sorry, you have ample opportunity to question any Justice official you would like. You can get your answers to your questions there.

Mr. Ramsay: Ten minutes to ask and get a response.

Mr. Discepola: But for us, to all of a sudden say that we're trying to hide something - Madam Chair, I don't accept that at all.

[Translation]

Mr. Langlois (Bellechasse): I cannot accuse them of sympathizing with the Conservatives, or with the Reform Party. I nevertheless respect those who sit or who have sat, in whatever capacity.

With respect to the Reform Party, I was one of those who fiercely complained about the improprieties of the Canadian Security Intelligence Service towards Mr. Manning. In my report, I condemned the activities conducted by the Canadian Security Intelligence Service and reached the conclusion that the Reform Party had suffered politically as a result of the intervention of a human source planted to work with the leader, Mr. Manning, and those close to the Reform Party leadership. This does not make me a Reform supporter, but rather a democrat who is concerned about what is going on in Canadian politics.

In the Mulroney affair, it is clear that what had gone on under the Mulroney regime was not forgotten. There was, to begin with, the Michel Côté affair, the Bissonnette affair and the Sinclair Stevens case, in which the commission of inquiry spent a long time studying his behaviour. It was easy, when Mr. Mulroney's name came up, to make him guilty by association. Everything was being examined under a microscope and some of his leading colleagues were implicated.

Several people, and even serious newspapers, judged Mr. Mulroney before he was ever able to stand trial. As Mr. Bellehumeur was saying just now, people were contradicting one another about this case. It would appear on the surface that at least two persons, Mr. Spector and Ms Bourgon, contradicted one another. One of them did not tell the truth. And yet both were appointed to very senior positions by the Prime Minister, Mr. Chrétien. Is it that these people misinformed the Prime Minister or did the misinformation come from other persons like the RCMP Commissioner? At what level was a poor decision made?

It is true that there have been civil damages, and that Mr. Mulroney says he is satisfied. If I were to be given a million dollars for my lawyers, I would probably be satisfied too. I would even go and talk to them about financing my campaign.

On another front, political harm has been done. While the political harm caused to the Reform Party and, in other instances to the Liberal Party, has been set right, no such reparations have been made with respect to the Bloc Québécois, which has generally been acting in a very civilized manner, particularly in the House.

.0945

I would ask my colleagues from the other parties to do the same and to take a deep breath, particularly when charges of racism are involved. But that is another matter.

It would be interesting to be able to determine the ins and outs of the case, but this would require the political will. We will never know unless our committee shows the political will to look into the matter, to demonstrate that we are genuinely parliamentarians, even though we may not be parliamentary secretaries or ministers, and even though we have no source of income other than what we earn as MPs, and report only to our voters. I believe, however, that my colleague from Vaudreuil is a parliamentary secretary.

We need to examine this case to reconstruct the facts; otherwise, we will fall into a situation in which people will simply quietly ignore the Standing Committee on Justice and Legal Affairs, just as they did the Standing Committee on Procedure and House Affairs. Because of all the time lost studying the matter of the press release from the MP for Charlesbourg, generally called the Jacob affair, the committee was unable to carry out its tasks and to work on reviewing the Canada Elections Act. It thus ended up with a bill that it had to approve hastily. Since then, that committee has been operating on two crutches, to say the least.

The committees of this Parliament, compared to those of the 34th Parliament, have quietly lost their power in practice, any are free to choose whether or not to exercise this sovereignty. I invite my colleagues to rise above partisan considerations because it is obviously possible to harm people one would not wish to see involved, in order to clarify this matter, which certainly deserves to have some light shed upon it in view of the charges that have been made.

My colleague from Vaudreuil was saying earlier that civil action ought not to be mixed up with a criminal action. It is precisely because there was a criminal investigation and because of the disclosures that ought not to have occurred, and information leaked and inappropriate requests made, that there was a civil suit. The two are intimately linked. We ought at least to attempt to get to the bottom of the matter. On the other hand, I have no illusions, because of the few months or weeks left in this Parliament and the importance of the Heritage Front affair. There are not really that many working days left to study the question.

There is a proverb from another country, I am not sure which one, that says that when a long trip is necessary, the important thing is to take the first step. We should at least begin to study the matter and perhaps, at a steering committee meeting, set out the guidelines; not to conduct a witch hunt, but simply to attempt to see what the real ins and outs of the issue are. That is why I second the motion made by colleague from Berthier - Montcalm.

[English]

The Chair: Thank you. Mr. Ramsay.

Mr. Ramsay: I suppose we should put our specific concerns on the record. My concern is this. The justice minister was notified of the concern of the complainant by telephone call on November 4. Later, Mr. Roger Tassé, acting in behalf of the complainant, sent a letter to the justice minister explaining his concern further. In that letter he asked that the original letter of authority to the Swiss authorities be withdrawn and that if necessary a second letter, devoid of the inflammatory language, be forwarded, so as not to interfere with the RCMP investigation. That letter, if it had been withdrawn instead of just a second one sent, would have stopped the whole civil proceedings, because there would have been no basis on which to form civil proceedings.

The justice minister had a choice at that time to withdraw the letter and issue a second one, which would have granted the tool and the authority the RCMP was asking for. He chose not to do that, which led to the eventual $50 million lawsuit and led to the expenditure of well over $1 million in legal fees on both sides.

Why did he not take the opportunity? I've asked that question in the House. In the heat of battle in the House sometimes you don't expect specific answers to specific questions. But no explanation has been given to the Canadian people as to why $1 million plus of their taxpayers' money was spent when the whole thing could have been stopped back in November 1995, after the justice minister was made aware not only of the contents of the letter but of the fact that it was very close to the public domain at that time. In Mr. Tassé's letter there are direct quotes from the letter of authority. The justice minister knew this letter had gotten beyond the confidential bounds that the normal procedure permitted. He knew.

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There is a principle of foreseeability in the law that indicates very clearly that you must be able to foresee the possible consequences of that kind of letter becoming public. He did not take the actions that could have stopped the whole thing back in November 1995. The question is why. We know that in another...

Are you...?

Mr. Rideout: I'm talking to Nick.

The Chair: Mr. Ramsay, please just make your submissions. We have witnesses waiting.

Mr. Ramsay: Yes, well, I'd like the floor.

The Chair: Address your comments to the chair and not to -

Mr. Ramsay: He's gabbing over there. If I'm going to address the floor, do I do it in a cacophony of noise from the opposite side?

The Chair: Could we just pay attention to what we're doing and get on with it? We have witnesses waiting.

Mr. Ramsay: Fine. Then maintain order in the committee, Madam Chair.

The Chair: Just get on with it, Mr. Ramsay.

Mr. Ramsay: There is evidence and an admission on the part of the justice minister that he garnered information from news media people and met with the RCMP and turned that information over to them. The copy of the letter I have from the RCMP to the justice minister indicates that there was nothing to the information. It was simply rumour. The RCMP contacted the members of the news media and it ended. It showed an interest by the justice minister not just in indicating or referring people who might have information of a criminal matter to the RCMP, but in taking it upon himself to take that matter to the RCMP.

There are questions here that should be examined. The people have a right to know. This is about whether or not this committee has the political will to look into those areas. What have we to fear? There's nothing to fear.

The Chair: Thank you, Mr. Ramsay.

Mr. Telegdi, could you be brief? We have witnesses.

Mr. Telegdi (Waterloo): Thank you very much, Madam Chair.

My real problem with the whole motion basically rests on the premise and the principle that people such as the Minister of Justice, the Solicitor General and the Prime Minister stay out of criminal investigations. We have an arm's length police force, and Mr. Ramsay should know that, having worked for the RCMP.

As a matter of fact, if a mayor of a municipality that might be policed by the RCMP tries to involve himself in or direct an investigation, he can actually be charged with obstruction. A chief of police who might try to obstruct the investigation of somebody under him in the chain of command could be charged with obstruction of justice.

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This is a very fundamental principle in a democracy, and if that process were to be abused I would be very upset. It is something that we, as parliamentarians, should be very aware of.

I can point to all sorts of totalitarian regimes where the politicians are very much involved in directing investigations. In the country I came from, Hungary, which was under communist rule, it was standard practice for politicians to direct criminal investigations and there was no line of demarcation between the two. To have someone suggest to me that because of partisan considerations I would oppose this motion - I can only say you are wrong, because ultimately one has a set of principles.

When we get to the point where we have politicians directing criminal investigations, we have a very serious problem in Canada. I happen to believe the Minister of Justice, and I would be very upset if the Minister of Justice or the Solicitor General was not at arm's length from the investigation. So I have absolutely no intent of supporting this motion on the grounds I have mentioned.

The Chair: Thank you. Thanks, Mr. Bellehumeur.

[Translation]

Mr. Bellehumeur: I would like to give a short answer to Mr. Telegdi. That is precisely what I am asking in the motion I am introducing this morning. There is indeed a premise. That premise is that the judicial and political need to be separate. What I am asking by means of this motion is that people come and tell us what they did, and we ourselves will determine whether or not you are right, Mr. Telegdi. Was the judicial and the political separated, yes or no? You can talk about a totalitarian country and about anything else you wish, but that's the issue.

There is also a premise that you have forgotten, and it is a very important one: that there is a bill of several million dollars that taxpayers will have to pay. Simply having the Minister of Justice and the Solicitor General saying mildly that they are sorry will not satisfy Canadians. That is another premise you have forgotten.

[English]

The Chair: Thank you very much. I take it you would like to have a recorded vote.

Motion negatived: nays, 6; yeas, 4

The Chair: We have the rest of the steering committee report to go through.

The next things on the steering committee report are Bill C-55, high-risk offenders, and Bill C-254, Val Meredith's bill. The steering committee is recommending we proceed to clause-by-clause during the week of March 3, which should allow us to get through all of our witnesses.

Item three, a private member's bill, is Mr. Wappel's Bill C-205, which some of you will remember gave us a very entertaining day when it was first brought before us. We are trying to organize hearings during two days in March. We have a witness list determined on that, and it's been agreed to.

On Bill C-217, Madame Venne's bill, I had suggested we wait until Bill C-46 is referred to us and combine them, but this is not the way Ms Venne wants to handle it, which is fine. We're trying to accommodate her. Apparently, because of other events her schedule won't allow her to participate until some time in April, so she's asked us to convene a couple of days in April. Personally, I don't see a problem with that, although that wasn't what the steering committee had in mind, so I'm amending its report.

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On the Young Offenders Act, we had a report at steering committee from Phil Rosen and Patty Bégin, our researchers, who indicated we will have the draft report available for the week of March 3. That's without recommendations. We had them draft the background and we'll thrash out the recommendations for the report then.

We also have an obligation to do a statutory review of sections 129 to 132 of the Corrections and Conditional Release Act. That's coming up, and we'll be organizing public meetings during March and April.

I would also remind you that there were two other requests. One was that we deal with an anniversary review of the DNA legislation we did. However, it has now become apparent there will also be legislation with respect to a DNA bank coming. Subject to anyone else's thoughts, I think we have all the same witnesses on that, and since it's likely the DNA bank legislation will come, we will try to combine the two.

Finally, Randy White from the Reform Party had a motion that was virtually unanimously received in the House dealing with a victim's bill of rights - a statement of basic principles of justice for victims of crime. I've received a letter from the Minister of Justice and we'll circulate it.

I think Randy's motion was to have the government ask the justice committee to take a look at this. The minister wrote me and is asking that we do that. He has also pointed out that in 1988 the federal, provincial and territorial ministers of justice met and also set out a statement of principles governing the treatment of victims in the criminal justice system. He's asked us to combine it with that, because there is a history of this. He has communicated that to Mr. White. That will be coming up on our agenda as well if there is a recommendation from the steering committee that we do so.

Are there any questions on the steering committee report? Bill C-46 has been referred to us. I just wrote a letter saying it hasn't, but it is finished in the House. That will be coming in the next little while. I would caution you that there are a lot of witnesses lining up to be heard on that.

Are there any comments from anyone on the steering committee's report? Val.

Ms Meredith (Surrey - White Rock - South Langley): With reference to clause-by-clause on Bill C-54 and Bill C-55, I assume we'll be dealing with Bill C-55 first, so the first couple of days into March will be on Bill C-55.

The Chair: Is that what you would prefer?

Ms Meredith: I don't think I will be back here until probably the Tuesday night.

The Chair: Okay. We probably wouldn't meet on a Monday, in any event. If you can't be here, we won't start your bill until you're here.

Ms Meredith: Thank you. I appreciate that.

The Chair: We might do that to others, but we wouldn't do that to you.

Ms Meredith: I'll have to look at my schedule. Thank you.

The Chair: Are there any other questions on the steering committee report? Can I consider that report as accepted by the committee? Thank you.

Motion agreed to [See Minutes of Proceedings]

We will move right along to Dr. Howard Barbaree on Bill C-55 and Bill C-254. Dr. Barbaree is the head of forensic services at the Clarke Institute of Psychiatry. He is a professor and head of the forensic program at the Department of Psychiatry at the University of Toronto and clinical director of the Warkworth Sexual Behaviour Clinic.

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Dr. Barbaree, in my past life I have had many occasions to make referrals to your department of my fine and upstanding clients. Welcome. I know you have a brief to present to us. Then we will take the opportunity to pick your brains, so to speak.

Dr. Howard Barbaree (Head, Forensic Division, Clarke Institute of Psychiatry): Thank you very much, Madam Chair, and good morning. I have distributed a brief, but first just a few words about myself and my experience in this area.

In my role as clinical director of the Warkworth Sexual Behaviour Clinic over the past eight years I have directed the preparation of approximately 500 sexual offenders in federal penitentiary for release to the community. At the Clarke Institute of Psychiatry, within the forensic division, the sexual behaviour clinic provides clinical care to approximately 250 outpatient sexual offenders each year. In the context of a service contract with the Correctional Service of Canada, which I direct at the Clarke Institute, the sexual behaviour clinic continually serves a roster of ten to fifteen high-risk sex offenders on parole.

I've been clinically active with this population of offenders since 1976. I've conducted research primarily on issues relating to risk assessment and treatment efficacy with sex offenders, and this research has resulted in numerous publications. I've been co-editor of two books in this area.

I'm in general strong agreement with the legislative amendments being proposed in these bills. About the appropriate management of risks posed by the sexual offender, the problems with the current legislation are seen at two junctures: first, when the detained high-risk sex offender reaches the end of his warrant and is released from custody to the community with no resources and no monitoring; and second, when the high-risk sex offender is living in the community on parole, relying on treatment and support provided by his management team, and he reaches the end of his warrant and he loses access to the support and care provided by the team. As we know, in the past both of these circumstances have led to serious sexual and violent reoffences, with tragic results. The proposed legislation enhances our ability to monitor and support these offenders while they are reintegrated into the community.

The dangerous offender legislation has not been effective in dealing with these problems. Because this legislation has led to very long terms of incarceration, there has been a reluctance to use it with offenders who could be managed effectively in the community. Changes to the Criminal Code that provide for the long-term offender create a middle category of offender between the dangerous offender and the offender on a determinate sentence. The long-term offender is an offender who might be disadvantaged by a warrant expiry, as described above, but who need not be held in custody for long periods. This legislative change will allow for long-term supervision of these offenders in the community.

When offenders are held in penitentiary till the expiry of their warrants, it's sometimes the case that the institutional staff are strongly of the opinion that he will reoffend upon his release from custody. To date, in most of these cases, there was nothing to be done. When attempts have been made to remedy the situation the only recommendation available was civil commitment to a provincial mental health facility. While some of these attempts have been successful, there are numerous problems with this solution, including the fact that this method is not always successful in holding the offender in custody. The proposal to introduce post-sentence detention as part of the Corrections and Conditional Release Act will provide for an effective mechanism to prevent these high-risk releases from custody.

The legislative amendments being proposed presuppose that we're able to determine the risk these offenders pose and that we have effective interventions for community supervision. While modern risk assessment methodologies and supervision practices are not yet perfected, I believe they are sufficiently well developed and effective to support the legislation being proposed here.

The Chair: Thank you very much.

Ms Meredith.

Ms Meredith: Thank you, Madam Chair.

Thank you for coming out today. It's nice to see somebody here who does support the premise of these two pieces of legislation.

As a professional who deals with sexual offenders - and I would have to assume that includes pedophiles -

Dr. Barbaree: Yes.

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Ms Meredith: There was a comment by a witness the other day that society has a false assumption that pedophiles cannot be treated. As a professional, would you agree with that statement? Do you feel pedophiles can be cured and can pose no serious problem or threat?

Dr. Barbaree: I think the literature on the treatment efficacy with pedophiles is controversial literature. A number of studies show that treatment has been effective in reducing the recidivism amongst pedophiles. A number of studies have shown no difference between treated and untreated pedophiles.

The fact is, though, in that literature there are numerous methodological problems, so I don't think we know at the moment whether or not they can be effectively treated. I think they can be effectively managed. Usually the question is posed in terms of whether or not some kind of cure can be effected. I think the literature is controversial on that issue.

With the appropriate supports and appropriate supervision in place in the community, these individuals can be managed so that their risk for reoffence is considerably reduced.

Ms Meredith: Would you suggest that this also is the case with repetitive sexual offenders, that they can be managed, if not necessarily cured, out in the community?

Dr. Barbaree: You're speaking of offenders against adult women?

Ms Meredith: Yes, I am.

Dr. Barbaree: Yes, I believe that's true. Now, I think you have to appreciate the heterogeneity in these two populations. There are, I think, some individuals who cannot be managed, or for which management could be very difficult and could result in a failure, but I think the majority of both of those populations can be managed safely in the community.

Ms Meredith: Do you feel it's possible to separate the two, that clinically it's possible to determine the few who cannot be managed from the many who can be managed?

Dr. Barbaree: Not without some error.

Ms Meredith: A large degree of error, a small degree of error...?

Dr. Barbaree: I'd say a small degree of error, at the moment. We've made considerable advances in the last few years in our ability to detect those individuals who are highly dangerous. I think the error is a lot smaller now than it was 10 or 15 years ago. With continuing research the error will go down, but I don't think we will ever reach an error rate of zero.

Ms Meredith: You mentioned the route of putting these individuals into mental health institutions, more or less trying to deal with the problem of an expiry of a warrant, of the individual being placed in society without any kind of supervision or monitoring or anything else. The attempt was made to place these people in an environment of mental health cases. Why does this not work?

Dr. Barbaree: In order for the civil commitment to be effected, there has to be a diagnosis from the DSM, Diagnostic and Statistical Manual of Mental Disorders, by the American Psychiatric Association. The problem is, some of the offenders who may be quite dangerous do not technically have a mental disorder and therefore would not be committable.

Ms Meredith: So what we're talking about is that people who are criminals, who have committed criminal acts, are not necessarily under the auspices of mental health. In other words, they're not mentally disordered. The difficulty we have, then, is that there are some individuals who can be identified as being criminally dangerous as opposed to mentally disabled dangerous.

Dr. Barbaree: Right.

Ms Meredith: So you support these pieces of legislation because they're dealing with, we hope, those small numbers of people who would fall into that category.

Dr. Barbaree: Yes.

Ms Meredith: Do you feel that Bill C-55 is an adequate way of dealing with these individuals in that the one instance is the six-month extension of determining dangerous offender application? Will that deal with the individuals who presently are in the system, who were not designated dangerous offenders, whose warrants will expire and who are considered to be, and have shown they are, dangerous to society? Will Bill C-55 deal with those individuals?

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Dr. Barbaree: The vast majority of them, I feel, would be taken care of with that legislation. You depend on being able, fairly early in the sentence, to determine an individual's dangerousness based on his history, based on what we call static factors, historical factors, his criminal record and the way he presents in interview at that time. The vast majority of individuals, I think, would be appropriately assessed and that legislation would catch them.

I worry that there are some individuals who would slip through that mechanism because we don't always have all of the right information, even six months into the sentence.

The other thing is that one set of factors we concern ourselves with in terms of risk is dynamic factors. These are factors that have to do with psychological changes an individual can go through. They aren't part of his history, they aren't part of his presentation at the beginning of his sentence, but they are features that become apparent later on. It doesn't happen very often, but it happens in some cases where there is a strong feeling amongst the professionals at the end of the sentence that his dangerousness, at least at that particular time, is high.

Many of them could be caught at that time with the civil commitment procedure, because the dynamic factor contributing to their risk is a mental disorder. But I think there are some who still would not fit the criterion of the DSM and would perhaps slip through.

Ms Meredith: So with Bill C-55, those individuals would be back out in society at the expiry of their warrant.

Dr. Barbaree: Yes.

Ms Meredith: Do you feel that the ability of the system to identify those very few individuals, and to extend at least a supervisory period of up to ten years, would be of value?

Dr. Barbaree: Yes. For those individuals who are determined to be the long-term offenders at sentencing, having the ability to monitor and supervise them for a period of time after their warranty expires would be an improvement over release without supervision. It would catch a number of the individuals I'm concerned about. Then you'd only be worried about those individuals who had not been determined to be long-term offenders and whose dynamic risk factors show up at the last moment. Really, the requirements to reduce their risk to acceptable levels would involve continuing custody. That would be a very, very small number of individuals.

Ms Meredith: But at present we have a fair number of individuals who are in the system and have been in the system since before it became fashionable, if you will, even to consider dangerous offender legislation. Those individuals will not be caught at sentencing because they are currently incarcerated.

If we know that somebody who is currently in the system falls into the category of the individual who would be difficult to supervise and difficult to treat, and you feel very comfortable that he is going to reoffend, do you not feel that we as a society should be doing something to prevent that individual from being placed back into society where we wait for him to reoffend so we can continue the sentencing application of dangerous offender?

Dr. Barbaree: I agree with that. There will be individuals currently in the system to whom Bill C-55 won't apply. They will pose a risk at the termination of their warrant.

Currently there is no mechanism. The other bill would provide for a mechanism for holding them in custody or for managing them on some kind of a parole condition after release.

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The Chair: Mr. Discepola.

Mr. Discepola: You mentioned there are some categories of sex offenders who you feel cannot be treated or who won't respond to the treatment satisfactorily. Are there alternative ways their problems can be addressed, without going to the extreme in the United States, where chemical castration is even being considered or used under the law in some states?

Dr. Barbaree: For those individuals, and they're small in number, who don't respond to treatment, often that non-response is simple non-compliance. They deny their sexual history. They deny having committed sexual offences. They don't submit to treatment. It's difficult to get them, for example, to comply with a regimen of medication. For them I think custody, if that's possible, is the only solution. With current legislation, once their sentence has terminated, they are released to the community, of course. Until they recommit an offence, not much can be done.

Mr. Discepola: Why do you have to wait for them to recommit an offence? If the professionals feel this person may commit an offence, why is it that other treatments can't be prescribed or other measures can't be introduced, even if the law doesn't provide for them right now?

Dr. Barbaree: If you're suggesting civil commitment as a process, the problem there is that there are very specific requirements for civil commitment, involving the diagnosis of a mental disorder, and a fairly large segment of these individuals simply don't meet the criteria of mental disorder. They have personality disorders that might be characterised as anti-social. They might be diagnosed as psychopaths. I think you're going to hear from Dr. Hare later on issues related to psychopathy. Unfortunately that diagnosis is not usually considered to be a diagnosis for the purposes of civil commitment.

Mr. Discepola: Would you go so far as to say that for this kind of people, if they are male, chemical castration would cure their problem?

Dr. Barbaree: The problem with chemical castration is that there is a compliance problem. There are side-effects men find quite uncomfortable. They don't like it. They will resist following a regimen of medication. If you give them pills, they won't take them.

Mr. Discepola: That's not my concern, though. As an inmate you have a choice.

Dr. Barbaree: Right.

Mr. Discepola: You can follow treatment and respond to it, or if you don't want to take that treatment, then there's another alternative. You choose. My question is more that we know one treatment has a certain rate of success.

Dr. Barbaree: Right.

Mr. Discepola: Would chemical castration, for example, or other forms of chemical hormones or whatever, have an equal amount of success if the inmate or the person were obligated to undergo that treatment?

Dr. Barbaree: What you're suggesting is that the individual be given a forced choice between two alternatives. One would be custody and one would be chemical castration.

Mr. Discepola: I'm brainstorming here.

Dr. Barbaree: That is not too different from some of the circumstances these men face at the moment. For example, a man on parole may be required as part of his parole conditions to meet the requirements of a treatment program. The treatment provider may say part of the treatment has to be medical treatment. That's part of the program. If he fails to comply with that, then he may be suspended and have his parole revoked. So I think the situation you're describing is not something we don't run into from time to time now.

With individuals who do opt for the medical treatment, their risk for reoffence is reduced. Their sexual drive and sexual interest are reduced somewhat. That can be part of an effective management program. Where you run into trouble, of course, is after you lose jurisdiction, after the warrant expires. Then that forced choice contingency is just not possible.

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Mr. Discepola: Thank you, Chair.

The Chair: Mr. Telegdi, did you have a question?

Mr. Telegdi: Yes. When you refer to appropriate management of risk, what is an appropriate management of risk?

Dr. Barbaree: What I mean by that is effective management of risk. We use sort of a team approach. The parole officer and the treatment providers in the community work together and communicate often about an individual's behaviour, their emotional state, whether or not they're complying with the conditions of their parole. The management includes involvement in a treatment program. Most of them attend a combination of group therapy, individual therapy, and sometimes, for individuals who require it, medical treatment involving most often chemical castration.

Mr. Telegdi: What is your success level?

Dr. Barbaree: I think in the program we run at the Clarke Institute we have very, very few reoffences amongst the men who are involved in the program.

If you asked with a view to appropriate research designs having been completed, then unfortunately that research has not been done. There are no studies that would be considered to be adequate methodologically that show, for individuals who are involved in the programs we currently provide versus men who are simply released to the community, a difference between those two conditions, mainly because we are just unable to do the study. You can't arrange a condition in which these men are simply released to the community without any kind of supervision.

I think there's good indication from studies that have methodological problems that the rate of reoffence can be reduced using these methods, methods of supervision combined with rehabilitative treatment.

Mr. Telegdi: Of ten people released who have been up for sex offences, how many of those ten reoffend? Before we talk treatment...I'm not interested in the breakdown. How many would reoffend?

Dr. Barbaree: You have to ask that question with respect to a time period. In other words, if you look at the end of one year, the rate is different from that after ten years.

We've just conducted a follow-up study of men who have left the Warkworth Sexual Behaviour Clinic, and our rate of what we call serious reoffence - that includes a sexual reoffence and/or a violent reoffence - after a period of three and a half years follow-up is roughly 8%. So going back to your question, if we restrict it to around a three- to four-year period, one in ten would reoffend.

Mr. Telegdi: Thank you.

The Chair: Thank you, Mr. Telegdi.

Are there any other questions? Mr. Langlois.

[Translation]

Mr. Langlois: I may well broaden the question. You touched upon it to some extent when Ms Meredith intervened. The specific characteristic of the paedophile is that he feels a sexual impulse for a child. He does not necessarily have a sexual interest in adults for a variety of reasons, and it is in connection with this that I would like you to go into greater detail about your thoughts on the matter. We have seen what happens in closed groups. At Mount Cashel for example and at Alfred in Ontario, where in closed groups, vulnerable people were subjected to sexual injury. Does a distinction have to be made between these cases and paedophiles who are in ordinary society? Are the character traits relatively similar?

Secondly, as you mentioned earlier, there are at least two schools of thought: one believes that paedophilia can be treated in certain ways and the other that it cannot. There is probably a third school, no doubt called the objective school, whose view is that there are two other schools.

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Do you believe that paedophilia can be treated effectively, and how can a person's sexuality and sexual impulses be redirected towards persons other than children?

[English]

Dr. Barbaree: If I may, I'll start with the question about the issue of treatment of the pedophile. When we talk about pedophilia we're talking about a sexual preference for or a sexual interest in children rather than adults or as well as an interest in adults.

When we talk about the sexual preference, people usually think about that sexual preference in the same way as they think about homosexuality. There are schools of thought that say this sexual interest in children is acquired through experience with sexual activity with children and there are some schools of thought that say this sexual interest is determined genetically or at least prenatally.

Is there any evidence in the literature that we have treatments or interventions that can change that sexual interest? The answer is no.

Most of the studies just find no long-term effects on that sexual interest. For example, some studies have been done that have tried to monitor sexual arousal to children in a laboratory setting and have then used various techniques including aversion, conditioning, and other kinds of behavioural or cognitive behavioural techniques in the laboratory setting to try to reduce this sexual arousal to children.

Those studies have shown that you can reduce the arousal. In other words, these men can learn techniques to control the arousal, but longer-term follow-ups of those individuals show that at least some of them continue to engage in sexual behaviour with children or continue to exhibit their sexual interest in children in other ways. I think there's pessimism amongst the professionals about whether or not you can actually change the sexual preference as a sort of underlying factor that leads to sexual behaviour with children.

That's quite different, it seems to me, from the issue of whether we can engage in treatment and interventions that control their behaviour. For example, I think some people conclude from this pessimism about treatment of the underlying sexual interest that these individuals should be in custody for the rest of their lives, that they remain at high risk for reoffence.

But the fact is that these individuals we have not been able to change in regard to their sexual interest are released to a community setting and continue in a treatment program directed towards control of their behaviour, and we are able to control their behaviour quite well, for the most part. As I said, there is a rate of failure in this that will probably never be zero, but amongst these individuals this kind of management program can be quite effective.

In the earlier question you asked, I think you were referring to the various subgroupings of child molesters. It is true that amongst men who molest children, we can discern a number of different subgroups. For example, I think there is a view in the general public that everyone who molests children can be diagnosed as a pedophile, that all of them have this underlying sexual interest in children.

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The fact is that in the research studies, only about 50% of men who molest children have a discernible sexual interest in children apart from their offence. These offences are seen in those cases to be more opportunistic. It's often the case that it's the individuals who have other criminal aspects to their behaviour who engage in these opportunistic acts against children.

You made a reference to the offences against children in various settings like schools and churches and so on, whether they are different from the pedophiles we see in a jail setting. I would argue that there are a great many similarities between those offenders and the offenders who commit those kinds of offences in a church or school setting and the offenders who offend in a community setting.

One important difference, I think, between two fairly large categories of these offenders is the offenders who commit crimes against children in their own home. Usually they're related, either biologically or through marriage to the mother of the children. These individuals tend not to be diagnosed as pedophilic. They don't have a discernible sexual interest in children. The offences appear to be more opportunistic compared with the offenders who offend outside the home, sometimes with strangers but more often with children they come to know through family contacts or through their work with children in schools or churches. Those individuals are more likely to have the underlying sexual interest in children.

I'm not sure if that answers your question.

[Translation]

Mr. Langlois: Is a parent who exhibits the behaviour of a paedophile someone who has failed to assume the parental role and who sees the child as an object of sexual desire rather than as a child for whom he is responsible? Is it possible to explain the behaviour of parents who are paedophiles?

[English]

Mr. Barbaree: As I said, the behaviour engaged in by parents is most often not part of a pedophilic pattern. With incest cases, when you look at the arousal of these men in the laboratory, they don't show a sexual interest in children. They most often don't show a sexual interest in children outside the home. The sexual behaviour between the father or stepfather and the child is more often an opportunistic act of a man who has a sexual preference for adult women. I'd argue, and I think the literature is fairly clear on this, that in cases of incest we're not talking about pedophilia. We're not talking about a sexual interest in children.

[Translation]

Mr. Langlois: Thank you.

[English]

Ms Meredith: I know your specialty is in sexual behaviour and what not. In my visits to young offenders facilities, in talking to individuals there, they have indicated that they have young people with this sexual deviancy. They are concerned about how to manage it. And they have young people who are violent. They get really concerned when they have young people in whom these two combine, in that they have a sexual deviancy as well as violent behaviour.

Are there people you would consider dangerous or dangerous offenders, people who should not be back out in society, who do not have a sexual component to their behaviour, who are just violent without the sexual deviancy?

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Dr. Barbaree: Without the sexual component to it.

Again, later you're going to hear from Dr. Robert Hare about psychopathy. Individuals who have a diverse criminal background have an overall higher risk for violent reoffence after release, and a proportion of them will commit a sexual act of violence. Some of them may not have had any indication of sexual deviance in their history. It appears as if sexual violence is just one of the many instances of violence these men are capable of.

Some individuals, as you say, have a clear sexual deviance, a history of deviant sexual acts, an interest in deviant sexual behaviour which you can identify in a laboratory test. They have fantasies. They have a sexual life that involves behaviours and partners involving criminal behaviour. As you say, sometimes those individuals with those interests also have a diverse criminal background and have a history of violent behaviour. As you're suggesting, those individuals are the ones we identify as being the highest-risk. It's those individuals you would identify as being perhaps those who should be in custody for the longer term.

Ms Meredith: It's the combination, then, that creates this person you feel cannot be controlled, cannot be managed.

Dr. Barbaree: Right.

Ms Meredith: It's a combination of the two rather than somebody who is just a sexual deviant or somebody who is just violent.

Dr. Barbaree: Yes, and the risk assessment we conduct at the Warkworth clinic involves very explicitly the assessment of those two factors. There is the factor of sexual deviance, and what you would look at in conducting that assessment is their history of sexual behaviour: how deviant it has been and how often they have engaged in deviant acts with children or with other partners. Also, in assessing that factor we look at the laboratory results. So the factor of sexual deviance is a very important component of the assessment.

Another component that's independent of the sexual deviance is the factor we call ``criminality''. Primarily we use the psychopathy checklist to assess that. An individual can score high on that test when they have a fairly long history of criminal behaviour and when they exhibit personality characteristics that involve the exploitation of other people. When someone scores high on that factor we say they're at high risk for committing a reoffence of a serious nature. It may be violent, it may be sexually violent, or it may be simply sexual.

So those two factors are relatively independent and they are combined in the risk assessment. As you are suggesting, we would say someone is at highest risk when they are high on those two factors. Someone can, for example, be very low in the criminality factor but have a long history of sexual deviance, and we would say they are not at as high a risk as the individual who is high on both factors. I think in most of those cases we would argue they can be quite comfortably and safely managed in the community setting.

One of the characteristics of the individuals who are high on the psychopathy factor is this characteristic of being non-compliant and uncooperative. What makes them very hard to manage in the community setting is the fact that they don't show up for appointments, they are not responsive to direction, they resist attempts to engage them in a meaningful therapeutic relationship. So this non-compliance and uncooperativeness is part of the constellation of criminal behaviours, which I think contributes to the difficulty we have managing them in the community.

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Ms Meredith: Thank you.

Thank you, Madam Chair.

The Chair: I want to ask a couple of questions. One of the clauses in the bill that I think has proved to be pretty controversial deals with amendments to section 810 of the Criminal Code. This would relate to an expanded and broader peace bond. More specifically, there is allowance in the bill for the use of electronic monitoring on people in the community who are perceived to be a danger.

I don't know if you are familiar with electronic monitoring processes, but I'm having some difficulty getting my mind around how an electronic monitor could stop somebody who is determined to prey on someone, or to be a sexual predator. Having both prosecuted and defended them before, I can't see how a bracelet or an alarm system is going to help, particularly.

Dr. Barbaree: I should answer by saying I have no experience with electronic monitoring. I agree with you; electronic monitoring will tell you where they are but not necessarily what they're doing.

The Chair: This is a very naive way for me to put it, in a sense - sometimes words are not adequate - but it has been my experience with these clients that if they're going to do this, it's because of an overwhelming urge. This is not someone waking up in the morning saying, hey, I think I'll go out and harass a six-year-old today. They don't do that. It's beyond them. Is it not?

Dr. Barbaree: Right. I think the problem with electronic monitoring is that it does not assess that factor.

One of the other problems with electronic monitoring is that it would reduce, in many cases, the time we spend in more appropriate monitoring. By more appropriate monitoring I mean the clinical interviews done on a repeated basis, the assessments parole officers do, following them in terms of their job behaviour, their relationship with their spouse, and knowing from those other sources where these individuals have been through the week.

If we have electronic monitoring I think we would ease up on those other methods of monitoring where we actually get some assessment of their behaviour. Most individuals, when they reoffend, show signs prior to the reoffence. As you're suggesting, there's evidence of this urge becoming more and more difficult for them to resist and control. That's often preceded by changes in mood. Their mental state, if you like, becomes disorganized. That can be quite readily identified in clinical interviews.

When we identify those problems in the clinical interview we then go through some interventions and further investigation. If people are really worried about the level of risk, then the intervention can include suspension of parole, or at least more frequent treatment sessions, perhaps, or whatever seems to be appropriate.

That method of approaching the management, as opposed to electronic monitoring, is what I would say is likely to be more effective.

The Chair: It seems to me - and again, I'm generalizing; in one sense, I apologize for that, but that's maybe part of what we do in that sometimes the law is more a broad stroke than a fine tool - that particularly with sexual predators and the sneak attack in the night, which we're all worried about here, there is a fairly high level of accurate predictability, yet a very low level of treatment. There certainly is no cure - to use a medical term - so in some ways it must be a frustrating area to deal with.

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Dr. Barbaree: When you have individuals who have a history of what you're suggesting, real predatory behaviour and behaviours that include abduction or accosting strangers on the street and that sort of thing, that's a fairly small proportion of the larger group of sexual offenders. I agree those behaviours indicate fairly high risk, and I think that high risk is fairly well recognized by the parole boards and the sentencing judges, and those individuals tend to spend a long time in custody. The majority of offenders don't have a history that includes those behaviours.

Unfortunately, I think one of the problems we have is that we tend to paint the group of sex offenders with a broad brush, and our concern about the individual who accosts people on the street or kidnaps them generalizes to the larger group. That results in long terms of incarceration and a very much higher cost in dealing with this problem than we really need to spend. The majority of these offenders can be managed quite comfortably in a community setting. I think we're getting better at identifying who those manageable offenders are, and though I'm in support of this legislation, which will have the effect of keeping some individuals in custody for longer periods, in general I'm in favour of shorter terms of incarceration for sexual offenders and more management of these individuals in community settings.

The Chair: Because we have you here and this is your field of endeavour, I'll talk to you for a minute about young people. We have just completed an extensive round of travel and hearings on the youth justice system, and one of the areas that continue to bedevil us is the problem of young people who are potentially long-term offenders, and in particular young people who have the potential to be dangerous sexual offenders. As you go across the continuum of age, is there a point, with this type of offender, where they are most impressionable and most susceptible to therapy, and is it the case that when they're older the behaviours themselves decline, as we know happens with other criminal behaviour? Can you comment for me on the age continuum there?

Dr. Barbaree: First, to answer the question about the older groups, I think amongst researchers and clinicians the consensus now on that issue is that with sex offenders we don't see the decline in age that you see in the non-sexual or simply violent offender.

The Chair: Anecdotally, my last two trials were grandfathers.

Dr. Barbaree: Yes, and I think you would be surprised, coming into the programs we run, at the age of the offenders. Some of them are elderly.

I guess there is a feeling amongst researchers who have looked at the younger categories that if we devoted more resources to intervening in the teenage years we would be more effective in treatment there than later. Some of the research now is even exploring the sexually inappropriate and intrusive behaviours of children prior to adolescence. Some people are suggesting appropriate intervention should be directed to those age groups.

I think there's not good evidence that treatment at any age is any more effective than other treatment. Even though people feel that treatment might be more effective with the younger age groups, there's no evidence to support that. So I can't answer that question with any kind of confidence.

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You run into the same difficulties in running programs of treatment for juvenile offenders as with older offenders. Even by that age, these criminal tendencies have begun to exhibit themselves and they are resistant to treatment. It is the individuals at that age group who are most likely to reoffend and most likely to reoffend in a violent way.

The problems we run into in treating the adults in terms of their denial, their minimization, their attitudes towards sexuality that contribute to the offending, those are all features of the younger offender as well. I am actually more impressed by the similarities between the young offenders, and the treatment of young offenders, and the adults than I am with the differences. I'm not sure that simply getting to them sooner is the solution.

The Chair: This is contrary to everything we have heard about other forms of criminal behaviour.

Dr. Barbaree: Yes.

The Chair: It's interesting, but I guess we could talk about this on the phone.

I must say that when you are a defence lawyer and you get a letter from the Clarke Institute on one of these cases, you certainly get the unvarnished truth. It can be really frustrating, but on the other hand it has always, in my experience, been a good agency to deal with. So we are pleased to have had the benefit of your wisdom today, even though you weren't exactly a bundle of good news for us. Thank you, Dr. Barbaree.

Dr. Barbaree: You're welcome.

The Chair: We'll take a few minutes to get our next witnesses lined up.

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The Chair: We're back.

Now we have with us Graham Stewart and Christine Leonard from the John Howard Societies of Ontario and Alberta, and Elizabeth White from the St. Leonard's Society of Canada. We also have with us Stephen Jenuth, who is a member of the social issues committee and a member of the board of directors of the Elizabeth Fry Society of Calgary, and Brenda Wadey, a program coordinator with the society.

Thank you all. Perhaps we'll start with the John Howard Society.

Mr. Graham Stewart (Executive Director, John Howard Society of Ontario): Good morning. Thank you to the committee for giving us an opportunity to present the views of the John Howard Society. Christine and I are from Alberta and Ontario respectively, but we're speaking on behalf of the John Howard Society of Canada.

We're going to be brief so that there'll be time for questions. I'm just going to address some of the general themes reflected in this legislation and some of the assumptions under it that are of concern to the society. Christine will be following up with some of our specific recommendations.

Let's begin by recognizing that there are indeed some very dangerous people, people we have a right to be concerned about and who can do a tremendous amount of damage in the community. Let's also recognize, I think, that it's justifiable to detain those who will be violent for very long periods of time, if not forever.

Let's also recognize that it's not proper to detain forever people who will not be violent. For us, that is the real issue in relation to this particular legislation. The real issue is the ability to sift between those two.

Detention on the basis of risk is not new in Canada. We have 167 people detained as dangerous offenders. We have approximately 27 offences in the Criminal Code that can attract a life sentence. We have over 2,000 people serving life sentences. We have about 1,000 people detained in mental health facilities who are considered not criminally responsible. We have an unknown number of people who were detained under civil commitment because of their risk to themselves or to others.

Also, we have many people being detained on any given day for shorter periods of time because of assessments of risk, ranging from those who've been refused bail because the justice of the peace assesses the person as too high a risk to be released, to those who have been refused temporary absences or paroles or day paroles because they were seen to be a risk and who are in detention when they might otherwise have been in the community.

We have people who are detained during the periods of their statutory release because there's been an assessment of risk to the community. Perhaps most importantly, we routinely expect that those who are seen to be at high risk are given much longer sentences than those who are not.

So on any given day in Canada we have thousands and thousands of people who are incarcerated because someone has assessed those persons as risks to the community. The fact is that the great majority of those people will not go on to be violent.

The real issue for us is not whether we can expand legislation to include more people under detention provisions, but whether we can do so without including those people who do not warrant that kind of detention. We're concerned that much of the discussion we've heard with respect to this bill seems to assume that the identification of very dangerous people is assured, that it seems to be a given.

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We're very concerned that those who seem to have come before this committee year after year, bitterly complaining about the inability of the parole board or the courts to accurately assess risk, and their release of people into the community who are high risk but thought to be low risk, seem to have absolutely no reluctance about giving the same authority to the same people to detain people indefinitely on the basis of the same kind of determination.

Our track record is not very good within our systems. To give you some examples, the detention provisions for statutory release were introduced in 1987. At the time, the commissioner of the Correctional Service of Canada and the chairman of the National Parole Board appeared before this committee and explained that this very exceptional measure was needed in approximately 50 cases per year. Last year they detained almost 500 cases. That's a tenfold increase from what was predicted and the basis on which this government accepted their recommendations over a period of 10 years.

Recent studies by the Correctional Service of Canada, in particular a study by Brian Grant on cases referred for detention, have shown that in spite of this substantial group of people who have been detained, those who have been detained are actually less of a risk than those who were not detained. Over a follow-up period of two years, those who have been detained - this is the worst of the worst - had a reconviction rate of 16%. That reconviction rate is similar only to those who are on full parole. They are less likely to reoffend than the group that wasn't detained - those released under statutory release.

Similarly with parole, the primary preoccupation, of course and understandably, is with violence. We have a violent offence rate of approximately 6% of all those released from federal penitentiaries within the period of supervision. That includes both parole and statutory release. Of those released, however, 66% are not on parole but on statutory release. One might argue that keeping ten people in jail to catch one is substantial over-prediction.

Because of all these experiences and the other factors, the research that has been done on previous versions of dangerous offender legislation, dangerous sexual offenders and dangerous sexual psychopaths, found there are obviously factors other than dangerousness that have been included in the assessment of risk. With that, we feel it's very important this committee be very modest about the expectations of systems that have not been able to establish a track record that doesn't include a large number of people who are not violent, by expanding their authority on the basis of legislation that is not specific in its criteria that in our view would clearly identify those who are most at risk of being violent.

Ms Christine Leonard (Executive Director, John Howard Society of Alberta): The John Howard Society of Canada does not support the majority of provisions in Bill C-55. Instead, with respect to dangerous offenders, we make the recommendation that the existing dangerous offender provisions be repealed and replaced with the exceptional sentence, as recommended by the Canadian Sentencing Commission. In addition, if at the end of an exceptional sentence the offender is still deemed to be dangerous to the community, based on some mental illness or mental disorder, we recommend he or she be detained in a mental health system at the end of the sentence.

As an alternative to the long-term offender and judicial restraint provisions, we propose the repeal of the detention provisions of the Corrections and Conditional Release Act; the prohibition of public notification of the release of sex offenders and those deemed dangerous; gradual release as a statutory part of every sentence; focusing community supervision and treatment resources on those with the greatest need and who pose the greatest risk; the provision of high-quality, well-funded community treatment and community residential facilities for those released; and the provision of adequate funding for treatment support beyond the warrant expiry date.

Finally, to be confident that we are dealing most appropriately with low-risk and high-risk offenders, we recommend that the government implement a permanent sentencing commission to create guidelines that would allow the Canadian public to believe that the appropriate sentences are being handed out for all categories of offenders.

However, knowing that this bill is likely to pass in some form, we make the following recommendations for proposed amendments.

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On dangerous offenders, we believe fixed-term sentences should be an option and they should not be eliminated.

Also, we believe the existing provisions on psychiatric testimony should be maintained.

On long-term offenders, we believe a pattern of sexual offending should be required. It should not be a possibility in this legislation that a person with one conviction for exposure is allowed to be deemed a long-term offender and suffer those consequences.

Finally, on judicial restraint, electronic monitoring should not be an option as a condition of the recognizance.

All of these recommendations are supported in our brief by research and by our policy positions of the John Howard Society of Canada.

The Chair: Thank you.

Ms White.

Ms Elizabeth White (Executive Director, St. Leonard's Society of Canada): The St. Leonard's Society is a community-based service provider governed by volunteers in the community. We approach legislation such as this with a view to determining its impact on how people can best live in our communities. Our goal is always for prisoners to return to living within our communities, crime free.

We see in this legislation a broadening of the types of interventions that can be used with people - people who are deemed to be high-risk for a variety of reasons - by creating new categories of sanctions, such as long-term supervision and the proposed section 810.2 recognizances. Before considering whether or not these sanctions will contribute to a reduction in crime and increase public safety, which can be determined only by future evidence and experience, to determine if they are necessary we need to know if they really address gaps in the system.

In Canada we already criminalize and incarcerate our population at a very high rate. Some would say it is an excessive rate, given the lack of proof of effectiveness of prison as a deterrent to crime. We're also a highly regulated society, ruled and mandated with processes for almost everything we do.

The St. Leonard's brief is before you. It covers several aspects of the legislation. I intend to focus on just a few of them this morning.

Proposed section 810.2 pulls into the criminal justice system people who would not otherwise be constrained by it. It creates a new criminal offence for individuals who have not been charged with a Criminal Code or any other infraction. It promotes the establishment of a series of restrictions for an individual without encouraging due regard for identified need.

The experience with probation orders should be instructive to us in this area. Several years ago probation orders were tailored to the person before the court. Recently the trend has been to include routinely all available conditions into an order, somewhat irrespective of individual considerations. The result can be that an individual is so circumscribed in their freedom that they find it difficult or indeed impossible to avoid breaching their conditions. We set people up for failure.

St. Leonard's is concerned that proposed section 810.2 will have a similar track record; that rather than our risking missing an area of concern, a large number of restrictions will be placed, with dubious results and potential net-widening of the criminal justice system. Rather than working, as we submit one should, towards successful crime-free life in the community, the situation will pull more individuals back into the system. This compounds the overriding concerns about proposed section 810.2, which centre on the creation of an offence for breach of a sanction for a non-offence.

Long-term supervision will also broaden the reach of the system. The sanction kicks in after warrant expiry - a sentence after a sentence - and a breach results in another criminal charge. It's truly an endless sentence that is being proposed.

There's a certain lack of honesty and certainty in creating legislation that develops a form of sentencing that it does not name as a sentence and that creates a situation where even when you have done your time, you're not done. It begs as yet unanswered questions. Could these individuals not have been supervised by conditional release as part of a lengthy sentence? How are we going to evaluate the purported effectiveness of this new sanction?

The issue of certainty in our penal system is further highlighted by the six-month window to seek a finding of dangerousness. Concerns about fearing to err if not giving notice of intention will, we submit, encourage overuse of the provision and a resulting additional lack of definition in our criminal process.

The role of electronic monitoring poses further concerns. The St. Leonard's Society takes the position that while there may be a use for technical surveillance, it will not be successful in assisting a crime-free lifestyle if not accompanied by significant dynamic interventions in the form of counselling and programs that address client need.

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This tool is a very powerful one, and we feel it's a very seductive one in some ways in the impression it gives that safety is just a monitor away. Unless we plan to monitor for life, unless we maintain an ability to constantly check on persons being monitored, we do not ultimately improve public safety. Safety is achieved when a person responds to interventions and lives without crime. We urge that electronic monitoring not be allowed unless accompanied by supportive programs.

The primary concern that St. Leonard's brings to this committee is that this legislation tries to create a fail-safe system. There's no such thing as 100% certainty in the criminal justice nor, we would suggest, any other system of our society. When we try to achieve a fail-safe system, we risk creating an environment where, for fear of failure in an instance, we encourage excessive use of criminal sanctions. We set up our system as a target of disrespect for its inability to achieve what is ultimately an unreasonable target.

In closing, I want to refer you to the summary of recommendations on page 7 of our brief, which are similar to those submissions made by earlier speakers.

We recommend that the rationale for adding the provisions concerning long-term supervision to the Criminal Code be reconsidered. We recommend that the mandatory minimum sentences in proposed subsection 753.1(3) of the Criminal Code be removed. We recommend that the period of parole ineligibility not be increased in proposed subsection 761(1); that the period of time for application for a determination of dangerous offender status not be extended; that proposed section 810.2 be removed; and that adequate resources for full evaluation and analysis of programs under proposed section 84.1 of the Corrections and Conditional Release Act be provided.

Thank you.

Ms Brenda Wadey (Program Coordinator, Elizabeth Fry Society of Calgary): Good morning. The Elizabeth Fry Society is a local organization that works with women who are in conflict with the law and advocates on issues that will affect them.

Both I and Stephen Jenuth, a member of our board of directors, will be addressing several concerns we have about Bill C-55.

Mr. Stephen Jenuth (Member, Board of Directors, Elizabeth Fry Society of Calgary): I'll begin with the dangerous offender legislation.

Back in 1987 the Supreme Court of Canada considered dangerous offender legislation. Although we as a society do not agree with the dangerous offender legislation, the Supreme Court upheld that legislation, saying it met the highest standards of rationality and proportionality.

To us Bill C-55 appears to attempt to undo the balance that the Supreme Court found in the act. For example, Bill C-55 attempts to change an indeterminate sentence under the Criminal Code into a life sentence by changing the parole eligibility from three years to seven years. While the Supreme Court of Canada noted that the jurisdiction of the National Parole Board was there to consider all factors, including the gravity of the offence and the dangerousness of the convict, in deciding whether an offender ought to be paroled, the legislation purports to take that away for an additional four years. We submit that in doing so, you are creating an arbitrary sentence and perhaps in many ways a sentence that is not proportionate to the crime.

Similarly, Bill C-55 removes the discretion not to impose an indeterminate sentence in an appropriate case. Again, the Supreme Court of Canada commented that an indeterminate sentence might well be arbitrary and offend the charter in certain cases, but the legislation was saved because it is discretionary; it would not be imposed by a court in inappropriate circumstances. Bill C-55 purports to take that away, making an indeterminate life sentence mandatory.

It also deals with some provisions regarding the fairness of the hearing. Bill C-55 removes the requirement of defence experts. Bill C-55 apparently allows a free Crown appeal of any sentence given simply by giving notice of a dangerous offender application, allowing the application to proceed, and if the Crown does not like the sentence, they simply apply to have a dangerous offender sentence in the future. This seems grossly unfair.

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It's our submission that members of Parliament, in considering their many duties, have to realize that their responsibility is also to uphold the Constitution of this country. This is not just a job for the courts of the country; rather, it is your responsibility also. It would be ironic, in the passing of a criminal law statute, that MPs would end up breaching the supreme law of the land.

Our recommendations by and large address these points. We would submit that the current ineligibility of three years be retained and that, in addition, a rational addition be made to allow an offender, at any time upon leave being granted by the board, to make an application for release. That leave application may simply be on paper, but it should show that the board would at any time be permitted to release the offender if all the circumstances permit, including the gravity of the crime and the dangerousness of the offender.

We would submit that discretion ought to be maintained to allow the court to impose an indeterminate sentence only in cases where it is appropriate, and have the option of not imposing it in cases where it is inappropriate.

We would submit that there ought to be the requirement of a fair hearing, which would include: defence psychiatrists; the offenders are permitted explicitly to have experts attend and assess the offender; in light of legal aid cutbacks, at least in the province of Alberta, to ensure that funding is provided for; and the obligation of the Correctional Service of Canada to provide such voluntary programs as might aid the offender in becoming less dangerous.

In addition, we would submit that if there is a post-sentence determination of dangerousness it be done only with the consent of the offender. If that consent is not forthcoming, then the Crown ought to be put to its option of proceeding with a dangerous offender application - and either winning or losing it - or abandoning it and proceeding for a normal sentence.

We'd also like you to consider that perhaps the dangerous offender indeterminate sentence ought to be a different sentence. It's a sentence that would be maintained only as long as an offender is dangerous. Then the offender would be released. The other circumstances normally considered by the parole board would not be used.

With regard to the long-term offender legislation, it appears to address a point I've always considered an anomaly in the Criminal Code, that with a sentence of under two years, probation supervision might follow the offence, whereas with a sentence of over two years there's no following supervision.

It's been my experience in Alberta, for example, that probation supervision has led to shorter sentences of time. It's our submission, based on the experience in Alberta, that long-term offender supervision would lead to shorter penitentiary sentences. To the extent that this is done, it's probably something that would be welcome.

Our concerns on long-term offender are largely technical in terms of the smooth, rational and consistent operation of a long-term offender supervision order.

The question would be, first, who should be subject of a long-term offender order? Our submission, respectfully, is those who would be helped by it, those who will be getting a sentence of more than two years - rather than ``could possibly'' - and only where that long-term offender supervision order would aid reintegration in the community. Failing that, there's really no point to a long-term supervision sentence.

We would also submit that a long-term supervision order ought to fit seamlessly with parole. It's our submission that a long-term offender supervision order ought to come into effect upon the granting of full parole. Otherwise, we run into the spectre of having a convict out on parole, nearing the very end of their sentence, breaching the parole order and being returned to the penitentiary. As the warrant expiry data arrives, they're simply released on long-term supervision.

Similarly, a resulting breach under a long-term supervision order ought to have the same review requirements as parole. To do otherwise is simply to cause confusion in the system. Confusion is something we really do not need in the criminal justice system.

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Finally, with respect to a breach of a long-term supervision order, we note the legislation provides that the offender could be returned to a penitentiary by the National Parole Board, and that the National Parole Board is required to consider whether the offender is dangerous and recommend prosecution.

It's our submission that should be the only entry into the prosecution for a breach of a long-term offender order. If the offender is returned to penitentiary and then released because the National Parole Board determines that further dangerousness is not a problem, then that should be the end of it. The offender has been returned to the penitentiary for the breach, has been punished, in effect, and ought not to be punished again by indictment.

The Attorney General ought not to undo what has been done by the National Parole Board, and instead, the various arms of the system ought to work together rather than perhaps in conflict with each other.

However, some minor breaches where the National Parole Board determines not to return the offender to penitentiary or to any form of supervision might well be dealt with some sanction. But we submit that sanction ought not to be an indictable offence with a possibility of a jury trial. Rather, it's our submission that it might be a summary conviction offence, which would be dealt with in the ordinary way, probably with a fine or some form of other sanction.

Back to Brenda.

Ms Wadey: With regard to the peace bonds, our mandate also provides us with the opportunity to work with many women who should be able to benefit from this legislation. We often see that legislation that is designed to protect women will be used against them, and we believe this legislation is such an example.

In reality, current peace bonds do not create safety for women but only the illusion of safety. We do not believe the inclusion of electronic monitoring systems will increase the effectiveness of the current peace bonds, and they also impinge on the rights of the offender.

With current technology, monitoring systems only tell people where the respondent is not, not where he is. It is the belief of our organization that to increase public safety we do not need more or better bells and whistles added to the current security measures. It would be more effective and efficient to add provisions that would help the respondent change his or her behaviour.

We suggest that regular contact with a supervisor would meet this requirement if it were paired with treatment options and opportunities, therefore decreasing the likelihood of breaching the peace bond.

From a defendant's standpoint, the standard of proof is inadequate. We all know many people are charged and acquitted on similar burdens of proof. In this room, it would be my guess that reasonable grounds could be used to substantiate a peace bond being required on many individuals.

It is also not reasonable to believe that this is a necessary measure. In our recommendation 18, we suggest that the burden of proof be increased to proof of substantial danger. This recommendation effectively protects the rights of the offender and allows financial resources to be targeted on those cases that meet the burden of proof.

We believe paragraph 125(1)(a.1)ought not to be added to the correctional act. Often people who are charged with accessory after the fact are mothers, sisters, girlfriends or common-law spouses, responding to the needs of an individual that they care deeply about or are related to. The current legislation recognizes special conditions of spouses under subsection 23(2), but it does not provide for other family members. As such, we question why these individuals should be treated more harshly than other first-time offenders. Therefore, we believe they should be considered for accelerated parole.

Thank you for the opportunity to speak to your committee.

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The Vice-Chair (Ms Torsney): Thank you for getting the wording on that one issue straight. Most of us don't need to have peace bonds, right?

Ms Meredith.

Ms Meredith: Thank you, Madam Chair.

I want to point out that none of you addressed private member's Bill C-254, yet the concern you raise about Bill C-55 is met in the private member's bill, which deals specifically with those very few people who would fall under the dangerous offender application. The big difference is that in dealing only with those who fall under the dangerous offender application the private member's bill does allow for a definite sentence or an indefinite sentence. It does not remove the possibility of a definite sentence. The other thing it recognizes is that individuals might change their ways, given treatment programs and given the availability of parole, and a determination should be allowed at the end of the sentence that would give them the ability to change their ways or show some remorse or show some response to treatment.

Do you not feel that in muddying the waters by including long-term offenders, peace bonds, and electronic monitoring, Bill C-55 has really removed itself from the specific concern, where knowingly, those who are in a position of authority and control release individuals they know have a high propensity to cause serious bodily harm or death to an individual upon release, knowingly release individuals of that nature into society, waiting for them to reoffend to place them back into custody?

Mr. Jenuth: I don't think I have that bill, but I think I understand the import of it, which, if I understand it correctly, is to allow a determination of dangerousness. Is that correct?

Ms Meredith: Yes.

Mr. Jenuth: I know some years ago our society wrote a brief on that, and I think the biggest difficulty we have with a post-sentence determination is that really what we're doing is re-sentencing a person after the original sentence is given. That strikes us as something that ought not to be done. Rather, if someone has had a determinate sentence and is coming to the end of that sentence in a penitentiary and that person is about to be released - and usually these problems are mental health or other such problems - that ought to be done through the provincial system. The mental health warrants and the mental health acts of the various provinces ought to be used, rather than a criminal sanction.

Ms Meredith: Previous to your appearance we had expert testimony that indicated that many of the individuals who do cause concern do not fall within the parameters of mental health. They could not be retained in a mental health institution because the system does not recognize dangerousness and criminal behaviour as a mental health problem. Therefore that system is unwilling to assume the responsibility for having to house criminal offenders.

Mr. Jenuth: I'll let the John Howard Society reply, but it strikes me that the mental health system ought to be the system that is reformed, rather than the criminal justice system, which deals largely with punishment and sanctions rather than with rehabilitation, for which the mental health system is responsible, and the ball ought to be thrown back to the provinces, which have to deal with their own problems.

Ms Meredith: We have spoken to people within the mental health parameters. They have a concern that their facilities are not equipped, nor are they, to deal with people who are not mentally ill but who are criminally involved. They do not feel it is in the best interests of the patients who are there for mental health reasons for them to be housing also people who are of a criminal nature as opposed to a health nature.

Mr. Stewart: Certainly that is a problem. However, the fact is that mental health facilities do have people within them who are both criminal and mentally ill, and often the distinction between what is criminal and what is mental illness is, for many citizens in the community, an abstraction. If a person doesn't have control of his behaviour and may not meet the legal definition of insanity but clearly has a mental illness, that's a reason for detention.

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I think you're quite right that this bill muddies the water considerably. The long-term detention provisions are of considerable concern to us. They seem to cast a very broad net. They seem to have within them mechanisms that provide very little protection. A ten-year sentence for breach of the terms is excessive and ultimately could only lead to the person who is not criminal but has difficulty with the conditions of release - and many do - into a de facto life sentence.

The other point is that we hear consistently and continuously from people within the criminal justice system on their concern about releasing people who they know are violent. Of course, we do know that people are released who are violent, but there's very little reason to believe that these same people can tell you with accuracy who's going to be violent. The fact is, persistently and continuously and excessively they label all sorts of people as likely to be violent who are not.

So our argument is simply, yes, if you take a large group of people you will capture violent people within that group, but the real question is, how many people do you also want to capture in that group who are not? I think we have to be very cautious about simple assertions by people who make decisions in the field that they have this very accurate knowledge. If they do, it certainly doesn't translate into decisions that reflect that in terms of the outcome.

Ms Meredith: I want to challenge you on the numbers. You leave the impression that we're talking about the system encompassing a whole bunch of people. The number you gave showed that 167 offenders have been declared dangerous offenders among the tens of thousands of people, perhaps even greater than tens of thousands, processed through our criminal justice system over a period of time. So the intent of my private member's bill is definitely not to broaden but to be able to capture those very small percentage of individuals who they feel, with great confidence, they can project are going to be committing dangerous offences threatening to society.

I will not defend Bill C-55, because I think they have watered down those parameters by including other offences and peace bonds and electronic monitoring and all these other types of things. But I think you're leaving a very wrong impression when you say that Corrections and people are trying to include everybody in it. I don't think that is their intent, and I think it's unfair to leave that impression.

What they are concerned about, whether it's the National Parole Board or Corrections, is that when they have to make judgment calls and let out one person who they know, with very good probability, is going to cause serious bodily harm or death to an innocent victim out in society, they are very uncomfortable with not having any protection in law of saying, yes, this one individual out of many others needs to be kept in protective custody for their own sake and for the sake of society.

There is no provision in law that allows them to do that. I think that's what Bill C-55, and certainly my private member's bill, is trying to do. I would suggest to you that in terms of the comment on sentencing somebody a second time, no, I don't think that's the intent. Rather, the intent is that here's an individual who was given the opportunity for counselling and who has shown by his behaviour and by his person - not by what he has done; that's part of it; it's more than that - that he is not a likely candidate for being placed back in society.

I don't see that as sentencing somebody a second time for an offence. I think it's a determination, made by many aspects, that this individual is too high-risk to be put back out into society.

I don't think we're talking large numbers here. I think we're talking very few numbers. You've indicated by your own admission that only 167 offenders have, through the process, been given this designation. I believe it's been in effect for 10 years now?

Mr. Stewart: Yes.

Ms Meredith: So we're not talking mega-numbers of individuals here.

Mr. Stewart: The point is, the dangerous offender applications, which have been decisions decided by the court, have certainly been handled with much greater restraint than decisions by correctional authorities. The point I was making is that if you look at the detention provisions, the number of detentions are ten times the predictions of the National Parole Board and the Correctional Service at the time they appeared before this committee. There is no end in sight with the expansion of those particular criteria.

So we're seeing 500 people per year being classified by the National Parole Board as requiring detention. We're very concerned that as you add new measures such as long-term supervision and so on, and you begin to change the criteria and the presumption, there is in fact tremendous potential to detain a large number of people, or to find a large number of people to be long-term offenders.

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We certainly agree that any measure that tries to detain forever people who are certain to be violent should be a very precise measure. We agree that there should be considerable safeguards. Our concern has been that the long-term offender provisions in fact become quite muddied.

Ms Meredith: But if you were to look at Bill C-254, the provisions are there. It goes through a judicial process. It's not something at the whim of corrections. There is a whole judicial process involved, as there is with the present legislation.

The only difference between what happens now and what happens under Bill C-254 is that the bill is taking into consideration the close supervision of an individual and the ability to monitor behaviour and to record behaviour of this individual, not just because of what he did - that's part of it - but because who he is and how he presents himself and what not poses an extreme threat to society.

So I think my private member's bill deals specifically with the concern of dangerous offenders' applications.

I said earlier that I believe Bill C-55 muddies the water because it's not specific in who it's dealing with. It does create other offences and other ways of dealing with broader criminal behaviour. I think that if you were to look at Bill C-254 and if you could understand the concept that it's not about sentencing somebody a second time for the same offence - it's an accumulation of other reasons and other concerns - you might find you could support it, as opposed to Bill C-55.

Mr. Jenuth: I'll make a very quick point about that. It sounds like Bill C-254 is very similar to the bill the previous government brought forward.

When we look at the gating applications, those applications where the parole board has determined someone's too dangerous to be released on statutory release, we find, as the John Howard brief shows, that they're wrong 84% of the time. It strikes me that the criteria for dangerousness and the ability to find dangerousness is perhaps one of the most difficult things to do. And really, if we're going to expand the system, it ought not to be the criminal justice system and penitentiaries.

Ms Meredith: On what -

The Vice-Chair (Ms Torsney): Excuse me, Ms Meredith, I've actually let you go for quite a bit over...but it was good of you to make use of the time.

We now have Mr. DeVillers for ten minutes.

Mr. DeVillers (Simcoe North): Thank you, Madam Chair.

I'm interested in the discussion and in the recommendation of at least two of your groups that we look more closely at the mental health system as a way of dealing with these problems. I'm familiar with the Ontario situation, where the mental health centre in my hometown of Penetanguishene is Oak Ridge, the Ontario facility for handling referrals from the correction system or people directly from the courts.

As part of your recommendation, have you done any investigation of or any work on how we could facilitate that type of cooperation between the two systems? Dr. Barbaree of the Clarke Institute was here earlier and said that there are medical and psychiatric difficulties in having people fit the definitions under the Mental Health Act of Ontario. Is there any work ongoing through any of your organizations in dealing with provincial authorities to try to make some progress in that area of cooperation between the two systems?

Mr. Stewart: The short answer is no. We recognize that this is very complicated area. We're really talking about this from the point of principle. If we're detaining a person not as punishment for crime but because we feel he does not have control of his behaviour, that in effect is a mental health issue from our perspective.

We realize the jurisdictional problems and legal definitions get in the way of that, and we also realize that the federal-provincial responsibilities make it much more difficult. There's no question in our minds that there's a need for a tremendous amount of work to be done to smooth the transition between those two systems.

Our point is that a prison is essentially a place where people are being held for punishment, and when we turn it into a place where they're being detained in a preventive way, we change the whole nature of the prison environment. In our minds, when we're dealing with preventive detention it's inappropriate to be dealing with that in a system that is essentially concerned with punishment as opposed to the one that is concerned with mental health.

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Mr. DeVillers: Yes, and the definition under the Ontario act is that they could be a danger to themselves or others. That's very vague or broad. I wonder, then, from a civil liberties point of view, if that is a more appropriate system, or the one that is being suggested or amended here.

Mr. Stewart: That's our view.

Mr. DeVillers: My second question deals with proposed section 810.2 and the constitutionality concerns, etc. When the justice minister appeared before the committee he expressed the opinion that it was constitutional and would withstand any challenges under the charter. However, he made certain suggestions for amendments that might relieve some of the concerns there. One was that we limit the application of proposed section 810.2, the peace bond, to situations where people had past convictions; or that the application be limited to those with a history of past violent behaviour where a conviction was relevant but not necessarily determinative; or thirdly, that we apply a pattern system - and I think that's in one of your recommendations - similar to section 518 of the Criminal Code, where there's a list of categories of factors.

If the committee were to recommend any of those three alternatives or combined amendments, would that change your opinions on proposed section 810.2?

Ms White: If the issue is similar to the one that applies to Bill C-254 as well, and that is using the criminal law as a prospective device. In our submission, the criminal law should be restricted. It's a very powerful tool. It's a very punitive tool. It should be restricted to those cases where there is a finding of guilt. Those particular suggestions do not help, because they are projecting prospective risk rather than current fact.

Mr. Jenuth: I think our submission was that we change the burden of proof in proposed section 810.2 to something that requires a substantial risk of danger rather than simply reasonable grounds. Reasonable grounds are what you need to charge someone, and in many cases the Crown loses the case. In some cases the Crown doesn't even proceed.

It's a very low burden of proof. Something more substantial is there.

As for the constitutionality of the provisions, we have section 810 right now, and it is a peace bond provision. We have section 810.1, which is another type of peace bond. We have a common law peace bond, in that all justices are empowered to bind people over to ensure they keep the peace. Those have been around for a long time. That may well withstand charter scrutiny. However, it's to try to limit the application, especially where you are going to more intrusive things which require more reporting or electronic monitoring, to the extent that is even useful, that there should be a more substantial burden of proof.

Mr. Stewart: About electronic monitoring, I think those who are skeptical about its ability actually to offer public protection have a fairly valid point. Electronic monitoring has generally been introduced as an alternative to incarceration for very low-risk offenders because it's punitive, not because it's rehabilitative; and it's less expensive. The fact is that electronic monitoring is a form of detention. It's detention in your home. It doesn't tell you where the person is, it just tells you he's not at home, at least with the current mechanisms.

We think it's one thing if you have a person who presents a high risk to the community to say, for valid reasons, you are not permitted to go into certain areas, such as school yards; it's another thing to detain the person in the home. I think it's a qualitative leap. At the same time we don't believe that is anything other than punitive. It's not an actual measure of safety. For instance, if a person is a compulsive sex offender, we don't believe electronic monitoring will make a difference.

Other factors could make the difference. The most important is relapse prevention programming. Certainly it's no guarantee, but it's the best available. That kind of focus would be much more useful, rather than going into a form of quasi-detention for those who are not under charge and in some cases have not even committed an offence.

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Mr. DeVillers: Thank you.

Thank you, Madam Chair.

The Vice-Chair (Ms Torsney): Thank you.

Mr. Telegdi, did you want to use the last couple of minutes? I'll also give you some in the next round.

Mr. Telegdi: Actually, just following up on your comments on electronic monitoring, you mentioned that it's cost-effective. I really wonder about that. The other day, I asked a person who was in charge of the program out in B.C. what the costs were. We were told it's $35 to $45 a day. I then take a look at the bail programs in the province of Ontario that were cancelled, and they were one-tenth of that.

Of course, electronic monitoring does little else but sound an alarm if somebody is not in a particular residence at curfew. And one of the problems is that if you want to keep people out, if you want to keep people at risk of offending from doing so, much of the help is dealing with some of the other real problems that exist. I'd therefore be careful when I say it's cost-effective at $35 to $45 a day. The bail program in Toronto is $4 a day.

I really appreciate non-governmental organizations coming before the justice committee. My question to you is on the extent to which we, as a government and through the ministry of the Solicitor General, support community organizations in this area? The reason I ask this question is that integration in the community can be so often much more effective when we involve community organizations as opposed to ministry staff.

Mr. Jenuth: I will perhaps start out.

The Elizabeth Fry Society of Calgary has some programs that are assisted by the Solicitor General of Canada. With small grants, they tend to be focused on assisting some of the very few federally sentenced female inmates who are in some of the institutions around Calgary. With the regionalization process involving women's penitentiaries, and with the returning of people back to the Edmonton Institution for Women, there will have to be additional releases. Hopefully those will be into the community.

While we don't want to run a prison, our organization would certainly wish to be involved in providing programs, and to assist the Department of the Solicitor General. One of the problems is that constitutionally, it seems that the Solicitor General works only with federally sentenced women, whereas with provincial sentencing, there seems to be a real dichotomy there. So while we may be able to have some programs for a few women or perhaps native women who may have problems through the Solicitor General and the various federal government organizations, those programs are then limited to the provincial side. So we could have a little bit more coordination between the two systems of justice.

Mr. Stewart: I'd like to let Christine speak to the latter part of your question, but just to set the record straight, I do not think electronic monitoring is cost-effective at all. In fact, I think it's really an obscene waste of money. There are much better alternatives. The only point I made was that the rationale for it was that it was more cost-effective than prison, but of course that's only when it's actually used as an alternative to prison. However, I would really not want you to think that I or the John Howard Society thinks it's a cost-effective program.

Mr. Telegdi: Okay.

Ms Leonard: We would certainly agree that the role of NGOs is critical to a successful reintegration. We play a different role in the community. We're more connected with our communities than the government can be in supervising and assisting offenders.

In terms of the support we receive for that, it really gets broken down between the support from the feds for working with federal inmates, versus the support from the province. In Alberta, the types of programs that the John Howard Societies were running three years ago have certainly been decimated by the funding cuts. We're just not a great partner with Justice any more provincially in Alberta.

With respect to the feds, we have a lot of programs that are federally funded right now - our relapse prevention programs and halfway houses - and we have a good partnership relationship with them at this time.

The Vice-Chair (Ms Torsney): Ms White.

Ms White: I would like to add to that.

With the current Solicitor General, the national organizations enjoy a very supportive relationship in theory and in philosophy. I would say that Christine's comments about the cutbacks in funding having a dramatically disproportionate effect on community-based organizations, rather than on their government ``partners'', is also extremely accurate. The plain fact is that the government has a huge infrastructure of services in place and in concrete, and the moving of services to the community is sometimes hindered by the very real fact of the continued existence of those institutions.

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The Vice-Chair (Ms Torsney): Ms Meredith, you have five minutes.

Ms Meredith: It's okay, I don't have anything.

The Vice-Chair (Ms Torsney): Mr. Telegdi, did you have another question?

Mr. Telegdi: I know the community safety and crime prevention council, in the general sense, is very much supportive of communities staking ownership around issues of public safety, crime and justice. I guess that's something we should be encouraging. I would imagine there have have been cutbacks right across the country, with the exception of Quebec.

Quebec seems to have much better management on this whole issue. Every time I see something, it reinforces that. They have fewer people sentenced under the dangerous offenders category. They have more resources available. There's a totally different mindset around it in the province of Quebec.

Personally, I am concerned - and I think many members of the committee are too - that those ties to the community that can be best met by NGOs and the volunteers involved with them, as well as professionals, should be given more prominence. I'm hoping that one of the recommendations that will be picked up at some point, because it's been made on numerous occasions, is that of crime prevention and community safety assistance federally to communities right across the country.

Mr. Stewart: From our point of view, I'm very glad to hear that. It's certainly quite consistent with our whole purpose for existence.

The John Howard Society in Ontario was actually founded by the then chief of police, General Draper, in the city of Toronto in 1929, because he recognized that once the person has committed the offence, has been apprehended, has been tried, has been convicted and has been sent to jail, we then have a problem. The problem is reintegration back into the community. In the end, that's not done with official systems of confinement and control. It's done by a community that's willing to engage that person and hopefully, in the process, encourage that person to be part of the community.

We have reason to be very optimistic about that. I think we forget there are 3 million people in Canada with criminal records, and there are about 30,000 in jail. The vast majority of offenders stop being offenders. At some point or other they reintegrate into the community. Anything that can be done to encourage that, to encourage people to think they have a place and to think there is some money and some support, is absolutely critical in that process. It can't be something that's just delegated to government. It has to be something that's encouraged on a community basis. We feel very strongly about that.

It's for that reason that we're very concerned about the current practice of naming, for instance. People who are coming out of institutions are seeing that there's a risk of being named in the community. That's creating an absolutely intolerable situation for individuals because there's no possibility for community support. In fact, it's the very opposite: that community knowledge works against the person. So that kind of issue certainly works contrary to any efforts we make in that respect. In fact, in our view, it increases the risk substantially because the person's gone out from the community.

At the same time, we have had good working relationships that change from time to time with the various governments. In the province of Ontario, there's virtually no working relationship with the government. At the federal level, there are considerably better relationships that are always strained by limited resources. Essentially, however, the law in relation to the purpose of federal corrections is one we support.

The objectives of rehabilitation are clearly in the law, and rehabilitation is something that we believe is the only public safety measure that works in the end. We're very committed to that. We're very committed to working constructively with any level of government that recognizes that in the end, a movement into the community in a supportive way is our best bet. It is well worth investing in and has had very good results over the years.

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Ms Wadey: To add to that, yes, there are sufficiently fewer women in the system, but there are also sufficiently fewer programs available to women who are in the system. There are two treatment beds available in the city of Calgary for women coming out of the institution. There are, I think, fourteen halfway placements available to women, and they are placed within halfway institutions specifically designed for men. There is considerably less program availability to women.

Mr. Jenuth: I think having federal involvement in community programs is something we would enjoy having.

One program we run at Elizabeth Fry in Calgary is our shoplifting intervention program. It takes people who have problems with shoplifting, a fairly minor offence that is usually dealt with at most with a provincial sentence, and it tries to find out what the problems are and works with them in one-on-one and group counselling sessions. It's an exceptionally effective program. Judges in Calgary are constantly referring people to our program.

That program as of now is completely unfunded. The provincial government says no to funding. The Alberta Law Foundation has decided it doesn't want to fund it any more because it doesn't have the money. The City of Calgary's community and social services feels it's the Alberta justice department's mandate and they don't want to get into funding Alberta Justice's problems. We are back and forth and we are stuck funding that program with the contributions of our volunteers, and as luck would have it, casinos. I'm not convinced that funding a criminal justice initiative through casinos is positive or productive.

To have federal involvement in something like that, if the committee would recommend that some funds be made available even for smaller programs like ours, which is not a big budget item, it would be effective in the community.

Mr. Telegdi: In my community, the Kitchener-Waterloo region, we have established a crime prevention community safety council, which recently came out with its report. The membership of the committee includes the chief of police, the chief prosecutor, people from community agencies, community justice agencies, the school boards and the municipalities. The plan is to look at the whole issue of a safe and secure community using a holistic approach. It was envisioned by the conference on crime prevention and community safety, the symposium at the Royal York in Toronto back in March 1993.

The funding for that came from regional government. They did it by hiring a coordinator, but they also got lots of help in kind from the police and some of the municipalities. I mention this to you because you could get hold of that report and start thinking of some of that stuff in your own communities. I really believe it's something we're going to be involved with to some degree right across Canada. I encourage you to look that up and start talking to people in your community and making some of those things happen.

The Vice-Chair (Ms Torsney): I have a technical question for the Elizabeth Fry representatives. Your fourth recommendation was that when the Crown has an intention to seek a dangerous offender sentence, no sentence should be imposed until the dangerous offender application has been concluded, unless the accused consents.

I'm trying to envision how this would work. The trial ends, there's a finding of guilty, the Crown says there is going to be an application for a dangerous offender, and they have six months to do this. Where is the person who's convicted?

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Mr. Jenuth: The way I see it, the Crown would give notice of an intent to make an application. The accused could then either consent to be given a determinate sentence at that point, with the option of the Crown to reapply within six months, or the accused could simply say no and the Crown could exercise its remedies under the dangerous offender legislation, so it could then apply to have the person remanded for the psychiatric examination if it chose to do so.

The Vice-Chair (Ms Torsney): So it would have to order the person into an assessment.

Mr. Jenuth: Yes, it would, if the court agreed, because you have a procedure in the act as part of the dangerous offender application. It seems there's a preliminary assessment period. Essentially, the Crown could give notice and the accused could say, I'll live with that and prevent this.

One of the things we see in Calgary and right across Canada are impaired driving charges. Almost all my clients, whether they're first-time offenders or fourteenth-time offenders, get a notice of intention to seek greater punishment. It's just something that's thrown out with your appearance notice, even though the Crown has no intention of seeking greater punishment. We don't want this notice to become just a piece of paperwork you do every time you have a fairly serious offence.

The Vice-Chair (Ms Torsney): Okay. If a person decided not to agree to the determinate sentence followed by the DO, if it's successful, could he or she be held for six months under an assessment order?

Mr. Jenuth: If the assessment order is made, that person would be kept under the assessment order -

The Vice-Chair (Ms Torsney): For six months.

Mr. Jenuth: - for whatever period the assessment order is made for, as if the Crown simply said it was applying now rather than in six months and it began its application. In that way, we're also avoiding the prospect of simply a dangerous offender or apropos sentence application being a free Crown appeal. The Crown appeal on sentence has to go to the court of appeal and it may decide it doesn't have grounds for that, but as part of the paperwork on it, given a dangerous offender notice, it may decide to give it a second shot and then maybe have two appeals.

The Vice-Chair (Ms Torsney): Thank you. I was interested in your recommendations so I wanted to know if it was feasible, given what power it would hold this individual under. I think you've explained it.

Mr. Jenuth: There would be no problem, because right now the Crown can make an application for the individual as a dangerous offender immediately following conviction or a guilty plea. This would simply say this is exactly what it may have to do if the accused does not consent to allow it to apply within the next six months following sentence.

The Vice-Chair (Ms Torsney): I think all of you understand why we're trying to do this legislation. I wonder if there is some other remedy you would suggest. From the Elizabeth Fry Society's perspective, obviously you work both sides of it. You're trying to protect people, and I know the John Howard Society wants to protect people too, but you're actively working with people who are on both sides of the law.

It's clear that the peace bond process hasn't been terribly successful for some women. It's very frustrating, because we are trying to put together an initiative that everyone says is necessary because there are these cases where everybody knew something was going to happen but nobody could hold them on something. It's such a travesty, and yet when we try to do something, everybody says we can't do that.

So give us another solution.

Ms Wadey: We find that people have no access to treatment as well, so a reasonable alternative is access to good treatment programs.

In several cases where men have killed their wives in Calgary - there seems to be a lot of that recently - the men have stated, and it has been substantiated, that they attempted to gain access to treatment programs prior to that but couldn't.

The Vice-Chair (Ms Torsney): Okay. Mr. Stewart.

Mr. Stewart: The problem you've identified and the frustration you feel is only going to be resolved when you detain everyone who anyone thinks is dangerous. The fact is that every time a crime takes place it's obviously because somebody fell through the cracks. Every offence becomes an argument to broaden the net, to enhance this mechanism.

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All I can say is what I said before: I'm struck by the lack of modesty of people in the prediction business at how often they're wrong. The fact is simply true that every time a crime takes place, it wasn't predicted. It's also true that someone knew every time. It's like prison riots. There has never been a prison riot, in my experience, where someone somewhere in the institution didn't know ahead of time that it was going to happen, or at least claimed that afterwards.

I think the fact of the matter is that when you look at an offence that has taken place and you look backwards, you can see all sorts of factors in that person's background that often create alarm. But what that doesn't tell you is how many other people had the same factors in their lives and did not go on and commit an offence. So much of this is a retrospective analysis of cases that simply doesn't give us a clear picture of how that person stood out clearly from a large number of other people with similar factors.

The reality is that we live in a free and democratic society that is reluctant to deprive people of liberty and, in particular, give them the most onerous sentence available in the Criminal Code on the basis of what they think they might do. That is such an onerous intrusion into a person's life that it is inevitably going to be applied with restraint. As soon as we apply it with restraint, we recognize that inevitably through that some people will not be detained who will be violent, and every time we take a step to expand that criteria, we are doing the opposite; we are then including people who should not be detained.

My point has been that when you look at the decisions, both positive and negative, of releasing those who we think are low-risk who reoffend, and releasing those who are high-risk and don't reoffend, we have no reason to believe this is anywhere near a tight or scientific system. The numbers of errors are atrocious on both sides, and therefore any mechanisms have to be done with enormous restraint if we're not simply turning the criminal justice system into a system that victimizes a large number of people who don't deserve it. And that's our concern.

The Vice-Chair (Ms Torsney): But it's also my concern that in the absence of some measures that the public can use to have a little more faith in the system, we get more and more vigilante-type initiatives, where people run people out of town into another community. But apparently that whole process that's going on and the vigilante-type initiatives in different communities, where they think a person is going to be a risk to the community...I guess we're trying to weigh some of the evils in having at least an appropriate process versus a system that's totally ad hoc and without any sort of due process. That scares the heck out of me.

Mr. Jenuth: One of the difficulties with something like electronic monitoring is that it's so difficult to do.

Say there were enough grounds to believe someone might be out to get me and that person were to have one of the new peace bonds with electronic monitoring involved. What would the provision read: that on the morning of February 6 the person not be allowed to attend anywhere within 20 feet of the path that goes from the Château Laurier Hotel, around the East Block, through the Centre Block, down through the tunnel, making the wrong turn in the corridor, then up past the security guards and then up to room 308 where the House of Commons justice committee is sitting, and to have someone actually sit back and monitor that or some computer monitor that, so that in case the person does suddenly arrive within those 10 or 15 feet, a car could be dispatched to try to locate and arrest that person for the breach?

I'm not convinced electronic monitoring is the answer, but perhaps something with fairly close supervision, requiring the person to attend the correctional authorities as provided by the bill, and as Ms Wadey has said, provide treatment programs and stuff that the person at least had made available to him, even if he or she has to attend and simply sit there and maybe refuse to participate.

At least in my experience, people are ordered to attend treatment programs, and maybe involuntary attendance isn't the best way, but if they sit there they sometimes begin to participate after a few days and sometimes it actually helps. I don't know if that's the answer and if that can get public confidence up, but I'm not convinced electronic monitoring is going to be the answer.

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The Vice-Chair (Ms Torsney): Ms White wants to say something.

Ms White: The issue of public confidence is an interesting one. It will never be solved by legislation, because there will always be the exceptional case. There never will be the 100% solution. There is, however, lots of potential to do increased work with the general public on what does work, making them aware of what the parameters are of a successful criminal justice intervention.

That's an area we need to explore much more completely between the government and the community-based organizations interested in having an informed public. It works to the benefit of everybody when the public is better aware of what can work and what can't work. Vigilantism never is the solution, but we encourage vigilantism when we don't set the full extent of educational opportunities before the public and permit them to only get the information the media chooses to give them on these issues. We need to be more all-encompassing.

Ms Wadey: Lulling people into a false sense of security also creates the opportunity to victimize those individuals.

Ms Leonard: There was an article in The Edmonton Journal the other day, which I read when I was preparing to come here. It relates to the health care system in the province. This woman had been transferred from three different hospitals in the midst of a heart failure, and died. Everybody was calling for changes to the health care system.

This was the government's response:

This is a specific difficult circumstance, and in terms of the overall health care system, we have to take these cases seriously.

But we have to recognize that thousands and thousands of people every day are getting very good care within the system.

...

There are always going to be glitches. Nothing is perfect. ... There were glitches in the system when we were virtually throwing money at it.

It struck me that with respect to health, the government is able to say they're doing the best they can; it was an unfortunate circumstance that couldn't have been prevented. With respect to justice in these unfortunate circumstances, we jump and we jump and we jump, and it's not going to get any better. Our ability to predict and manage is never going to be what the public wants it to be.

The Vice-Chair (Ms Torsney): Thank you very much, all of you, for coming long distances to appear before the committee. I wish you continued good work on that mandate, Ms White, which I know we all try to do from time to time but certainly your groups do in spades.

The meeting is adjourned.

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