JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, December 4, 2002

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1535

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Mr. François Bérard (Criminologist, “Association des services de réhabilitation sociale du Québec inc.”)

Mr. Donald Beaudoin (Criminologist, “Association des services de réhabilitation sociale du Québec inc.”)

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1540

Mr. François Bérard

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1545

¹

1550

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews (Provencher, Canadian Alliance)

Mr. François Bérard

Mr. Vic Toews

Mr. François Bérard

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1555

Mr. Vic Toews

Mr. François Bérard

Mr. Vic Toews

Mr. François Bérard

Mr. Vic Toews

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

M. Donald Beaudoin

Mr. Richard Marceau

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1600

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

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1605

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Mr. Donald Beaudoin

Mr. Derek Lee

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1610

Mr. Donald Beaudoin

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

Mr. François Bérard

Mr. Vic Toews

Mr. François Bérard

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1615

Mr. Vic Toews

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Ivan Grose (Oshawa, Lib.)

Mr. François Bérard

Mr. Donald Beaudoin

Mr. Ivan Grose

Mr. Donald Beaudoin

Mr. Ivan Grose

Mr. Donald Beaudoin

The Vice-Chair (Mr. John McKay)

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

Mr. Richard Marceau

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1620

Mr. François Bérard

Mr. Richard Marceau

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. François Bérard

Mr. Paul Harold Macklin

Mr. François Bérard

Mr. Paul Harold Macklin

Mr. François Bérard

Mr. Paul Harold Macklin

Mr. François Bérard

Mr. Paul Harold Macklin

Mr. François Bérard

Mr. Paul Harold Macklin

Mr. François Bérard

Mr. Paul Harold Macklin

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

Mr. François Bérard

Mr. Vic Toews

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Ivan Grose

Mr. François Bérard

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1625

Mr. Ivan Grose

Mr. François Bérard

Mr. Ivan Grose

Mr. François Bérard

Mr. Ivan Grose

The Vice-Chair (Mr. John McKay)

Mr. François Bérard

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee

º

1630

Mr. François Bérard

Mr. Derek Lee

Mr. François Bérard

Mr. Derek Lee

The Vice-Chair (Mr. John McKay)

Mr. John Maloney (Erie—Lincoln, Lib.)

The Vice-Chair (Mr. John McKay)

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 008

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Wednesday, December 4, 2002

[Recorded by Electronic Apparatus]

¹  (1535)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I'd like to call this meeting to order.

    With us today are François Bérard and Donald Beaudoin, both from the Association des services de réhabilitation sociale du Québec.

    Wow! I don't know whether or not you'll have to shrink that name at some point or other.

    We are continuing our review of conditional sentences and related matters. As both the clerk and I have said to you, it's basically ten minutes for each of you, and then we'll get into questions and answers.

    I apologize for the low numbers, but members drift in over time. I imagine the numbers will have built by the time you're finished your presentation. And remember that it's also on the record, so everything that is said will always be on the record.

    I look forward to what you have to say.

[Translation]

    Mr. François Bérard (Criminologist, “Association des services de réhabilitation sociale du Québec inc.”): Good afternoon, gentlemen, my name is François Bérard. Together with Donald Beaudoin, I am going to be providing you with some information for your consideration about conditional sentencing.

    I would like to start by quickly introducing our association. It has been in place since 1962, for over 40 years. It is made up of some 50 community organizations in Quebec that work with young and adult offenders.

    For a number of years, our association has defended an idea similar to conditional sentencing. The introduction of this procedure was for us a valuable additional tool in an arsenal of tools in the criminal justice system. It made possible a clear expression of social reprobation with respect to the act committed, while also allowing for relatively safe social rehabilitation for the people to whom this type of measure was applied.

    Mr. Beaudoin will speak to you for a few minutes about the way we operate in Quebec with respect to conditional sentencing. Then I will come back and tell you about some of the features which seem to cause difficulties and could help you understand the situation in Quebec.

    Mr. Donald Beaudoin (Criminologist, “Association des services de réhabilitation sociale du Québec inc.”): Good afternoon.

    I would like to begin by telling you that once the judge hands down a conditional sentence to an individual, that person's file is forwarded immediately to the court liaison officers. They follow up on the file and decide what type of professional worker will handle the case.

    The organization where I work has a case load of 64 cases. We therefore have 64 clients who have been given a conditional sentence. These cases are forwarded to us within 24 or 48 hours after the sentence is handed down. Once we receive a file, we have 24 hours within which to send a letter to the individual asking him or her to come to an initial meeting to receive instructions about the clinical follow-up.

    All our clients are subject to a curfew as one of the conditions of their conditional sentence. It can vary between 6:00 p.m. and midnight. The time varies, but a curfew applies in all cases. Some of our clients are also under house arrest—in other words, they have to be at their home all the time. In order to ensure compliance with these conditions, Quebec Correctional Services have hired additional officers to call clients at home or to visit them there.

    Our organization provides various clinical services to these individuals. We help them organize their finances. We cover occupational issues with respect to looking for a job and structured activities. We also look at their immediate environment, their social network, to see whether they are functional or not and what changes, if any, are required. We also help them with stress management, problem-solving, and addiction, of course.

    We also have a location for lodging some clients, called a CRC. We have a contract with Correctional Services of Quebec to provide lodging for 30 inmates. Obviously, this resource has enabled us to develop these services. Our clients with a conditional sentence are therefore able to take advantage of these services. If one of them goes through a period of upheaval and needs lodging, we can provide a place for him in our community resource. If the individual is in a precarious situation, he or she will be given lodging and support 24 hours a day. We can also provide assistance with food—we already have a resource of this type available. We have a 24-hour service where people who are in upheaval on the outside can call the staff on duty in the facility I just described. We also have a clothing depot to assist people in this way. We offer a volunteer companion service when clients are feeling fragile or when they have to travel in the outside community.

    If one of our clients is suddenly in a state of upheaval, we can get a suspension warrant quite quickly, an arrest warrant from the deputy crown attorney. We have direct contact with the individual. Consequently, it is possible to get a warrant as quickly as possible and thereby guarantee better protection.

    There is also section 495 of the Criminal Code which may authorize police officers to take action without a warrant. In an emergency, we can call on the police, who will be informed of the facts clearly and informed about the increased danger presented by the client. At that point, they can move to reincarcerate the individual.

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    Mr. François Bérard: I will continue by giving you a quick description of some of the problems that can occur with conditional sentencing in Quebec.

    The important point is that overall, in 1999-2000, the Correctional Services of Quebec supervised 2,800 individuals who had received a conditional sentence. The previous year, there had been 2,400 such people. The statistics show that there has been an increase, and this procedure seems to be growing in popularity with judges. It has even had an impact on the imprisonment rate—there has been a reduction in this rate in Quebec.

    I would like to discuss quickly some of the features that seem to be problematical. The first is the issue of calculating the sentence of individuals who sometimes have several concurrent conditional sentences at the same time. In other words, when a person has received a conditional sentence and has two or three such sentences concurrently, certain conditions are ordered by the judge. Sometimes, because one of these conditions is not respected, the conditional sentence is suspended. The other conditional sentences continue, but it is as though we were stopping the clock in the case of a sentence where one of the conditions was not respected. When the individual goes to court and the judge gives him or her a new conditional sentence with new conditions, the time not yet served is taken into account at this point.

    So this causes a problem for probation officers when individuals who had started serving a conditional sentence are in breach of one of their conditions. The clock is stopped, however the other conditional sentences continue. And when the clock is started again, the time is added on. In the case of some individuals who receive conditional sentences, the stopping of the clock with respect to the other conditional sentences complicates the follow-up when it comes time to determine when the conditional sentence will really end.

    The second point is that there are harmonization problems as well. There are individuals who commit offences in various jurisdictions in Quebec. So there may be judges in various locations... For example, someone may have committed crimes in Montreal and in the Saint-Hyacinthe regions—in other words in two different locations, with two different court houses and different judges who will hand down conditional sentences with different conditions.

    It is not always an easy matter to harmonize the conditions. For example, a condition whereby individuals are required to be at home at certain times may be ordered in one jurisdiction, while another jurisdiction may set different times and cover a different period. So there are sometimes problems between the week and the weekend as to the conditions that are set.

    The issue of monitoring conditions has already been discussed in the newspapers, but there is the issue of cell phones, for example. In the case of telephone checks, the technology may be ahead of the act or the enforcement capabilities. It may be impossible to conduct telephone checks when individuals have a cell phone, because they may be outside their home and yet give the impression that they are at home. This may be problematical and some judges have already said that cell phones cannot be used for these checks—it must be possible to reach the person at a fixed telephone at home. So there is some slippage in this regard.

    There is also a problem with respect to individuals with sentences in various jurisdictions. I mentioned this previously. There is a problem during the checks. When an individual is in Montreal during the week and spends weekends in the Saint-Hyacinthe region for work or other reasons, he or she mobilizes two teams. They try to monitor this individual to determine whether he or she was really at home during the night. So the Montreal team does a check and says that the person was not at home during the weekend. It therefore reports a violation of the sentencing conditions. However, as far as the other jurisdiction is concerned, the individual is suppose to be in Saint-Hyacinthe. They find that he or she was really at the place mentioned in the order. So there are sometimes contradictions in this regard.

    The main problem with respect to conditional sentences has to do with the system's ability to handle breaches of the conditions. What we notice in the case of probation officers and community workers is that there is a genuine desire to deal with cases where there is a breach, and to ensure that they can meet with the offenders and give them feedback about the breach in question.

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    Sometimes, however, the problem is our ability to really use the breach to educate or re-educate the offender, in accordance with the mandate of probation officers or community workers. At the moment, there is a major shortage of financial resources to hire an adequate number of probation officers and community workers to do this job. The checking is done by guards, but we do not go far enough in the positive use of recovery procedures.

    On the issue of breaches of conditional sentences as well, there is a problem harmonizing practices between the work done by community workers and crown attorneys. Some crown attorneys in some regions or even some individual crown attorneys attach relatively little importance to conditional sentencing. This means that their way of dealing with conditional sentencing may vary. This happens, for example, when people contact crown attorneys to mention that there has been a breach of the condition requiring the offender to remain at home in the evening. The breach was reported as follows: a guard contacted the person on conditional sentence at home, and he or she did not answer the telephone. Normally, a breach is reported at this point. Some crown attorneys will then take steps and take this breach to the court, but others will say that the fact that a person did not answer the telephone does not necessarily mean that he or she was not at home. So the burden of proof does not necessarily always rest on the offender's shoulders. So practices may vary from region to region and attorney to attorney.

    The other factor is that there are more people with conditional sentences than there are on parole. As I was saying, in Quebec, some of the individuals who receive conditional sentencing had been imprisoned previously. These are the cases where there may be more frequent breaches of the conditions. What we have noticed is that in Quebec generally, the crown has difficulty managing all the breaches that occur and therefore dealing with them.

    Some harmonization may be required between prioritizing certain types of breaches or the number of breaches. It might be possible to say that on the second or third breach, the case could be taken to court. The attitude of Correctional Services at the moment is to report all breaches to the crown, regardless of their seriousness. This means that the crown is somewhat overwhelmed by all the breaches, particularly where people have sentences with many conditions attached. The more conditions there are, the greater the risk of failing to comply with them.

    So those are the main points we wanted to present to you. In closing, I would just like to say that the ASRSQ thinks conditional sentencing is an excellent tool and one that must be used for all offenders who can benefit from it. There should be no special discrimination with respect to people who could be suitable for a program of this type. This is something that should be continued. We perhaps need to do some work to harmonize practices, but the main problem is a shortage of financial resources and that's a shortage of conditional sentencing workers. The crown should ultimately make an effort in this regard.

    Thank you very much for your attention.

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[English]

    The Vice-Chair (Mr. John McKay): Mr. Toews, for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you.

    We're hearing reports—at least, I'm certainly hearing reports—both from police officers and crown attorneys, that they've simply given up trying to enforce conditional sentences because of the complexity of the law and the impression that the courts aren't taking these very seriously.

    Aside from the issue of enforcement, what I have never been able to understand—and perhaps you can clarify this for me—is the practical difference between a conditional sentence and a suspended sentence. In my opinion, everything you could do under a suspended sentence is now being done under a conditional sentence.

    There's an issue about the fictional idea of somebody actually being in custody. Well, as I recall from when I was prosecuting, you had to be at home during certain hours with those curfews, and they were always done under suspended sentence. Suddenly they came out with this idea that this is “in custody”, so it's therefore somehow different from a suspended sentence.

    What is the practical difference, and why can't these two systems be amalgamated?

[Translation]

    Mr. François Bérard: When suspended sentences, or what we often call probation in Quebec was introduced into the Criminal Code, its focus was much more to provide assistance and support to the individual we were seeking to help. The monitoring function was not very much in evidence. Individuals had to comply with certain conditions, but the focus was more on assistance and support in finding a job or in dealing with family problems. It may be a question of directing an individual to a resource such as a psychologist to help him or her deal with personal problems.

    There is a difference in the case of conditional sentencing. I would say that Justice Lamer finally clarified things in a Supreme Court decision in which he said that it was first of all a coercive measure and that it must be experienced as such by people serving a conditional sentence. That means that the supervision—and here I'm referring to the Quebec experience—is such that the individual, rather than being seen once a month, as could be the case with probation...

[English]

    Mr. Vic Toews: They're both coercive measures. People are under conditions, whether that means abstaining from the use of alcohol, keeping the peace, or being of good behaviour. Those are all coercive measures. But whatever you want to call the perception, why can't those coercive provisions be put in a suspended sentence so that people know what the process is in terms of being able to enforce it, whether you want to call the conditions rehabilitative or coercive? In fact, in the old suspended sentences, there were so-called coercive provisions and there were rehabilitative provisions. I see the same thing in the conditional sentences. I just don't see the logical difference in setting up these two separate legal schemes.

[Translation]

    Mr. François Bérard: I think Parliament wanted to distinguish between the type of individual for whom we wanted to provide more support and having people... Most of those who should be on probation are not criminals; they are people with social problems to whom we have provided support.

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[English]

    Mr. Vic Toews: Just a moment.

[Translation]

    Mr. François Bérard: If you would let me finish, I would say that with respect to imprisonment...

[English]

    Mr. Vic Toews: I just want to get a clarification.

    All of these people have been convicted of a criminal offence, so they're all criminals. Let's get that straight, first of all.

    I'm just asking why we can't put all the conditions together in one system. I don't want to get into the philosophy, I just want to look at the practical problems. What practical problems are there in doing that?

[Translation]

    Mr. François Bérard: Your interpretation of the concept of criminal is different from ours. You lump together all those who have committed offences. When we talk about offenders, we distinguish between individuals who commit an offence and individuals with a delinquent lifestyle and a delinquent way of thinking and being. Some people make some mistakes in life, but that does not necessarily make them people with a delinquent lifestyle. There is a difference between people who commit an offence once in their life and those who commit a series of offences or who feel that breaking the law is really the focus of their life on the outside.

    The distinction we make is that both probation and conditional sentencing are measures that take place in open custody. The difference between probation and conditional sentencing is that in the case of probation, the emphasis is more on providing support, with some supervision. However, people on probation are not treated very harshly by crown attorneys, for example, and by the court.

    Some cases will be referred to court and some steps are sometimes taken. Generally, in Quebec, a slight penalty is imposed to let people know that they have not reported to their officer for several months. In the case of conditional sentencing, however, individuals are in a supervised context...

[English]

    Mr. Vic Toews: I'm going to interrupt, because I only have a little time left.

    You indicated that suspended sentences aren't treated with as much force by the Crown, yet you just spent a lot of time telling us that the Crown doesn't treat conditional sentences the same way. Sometimes they're treated with less severity, and sometimes with more severity. What I'm just trying to figure out is the distinction. Whether it's conditional or suspended, why can't you tailor the sentence under the same legal format so that you don't have all this confusion? That's what's killing this conditional sentencing program, and that's what's killing the suspended sentencing program. They're not being enforced.

[Translation]

    Mr. François Bérard: There is no confusion as far as Quebec is concerned. I do not know what the situation is like in the other provinces, but the distinction between these two measures seems increasingly clear for crown attorneys and also for the courts. Probation is a measure that provides assistance. Conditional sentencing, which also takes place in open custody, is a measure that provides assistance, but which has a much more coercive aspect as well.

    In the case of probation, there are no conditions requiring people to be home in the evening with telephone calls and visits to ensure that they are in fact there. People on probation have a great deal more latitude, because probation is for less problematic cases. Conditional sentencing is for much more problematical cases requiring greater control and generally more assistance.

[English]

    The Vice-Chair (Mr. John McKay): Thank you.

[Translation]

    Mr. Marceau, you have seven minutes.

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

    First of all, I would like to thank you, Mr. Beaudoin and Mr. Bérard, for appearing before our committee. Your presentation was both very interesting and eloquent. I have a number of questions of a practical nature. You say, Mr. Beaudoin, that your association handled 64 cases. How many employees do you have to supervise the 64 cases?

    M. Donald Beaudoin: There are two employees who share the case load.

    Mr. Richard Marceau: Two employees for 64 cases?

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    Mr. François Bérard: Yes, working full-time.

    Mr. Richard Marceau: You say in your conclusion, Mr. Bérard, I believe, that conditional sentences are an excellent tool, but that at the same time, you say that you lack the financial and human resources required to provide the proper supervision.

    How can you say that this is an excellent measure and that it is working well if you are not sure that the conditions of the sentence have been met?

    Mr. François Bérard: To what conditions are you referring?

    Mr. Richard Marceau: I'm referring to the conditions imposed in the case of a conditional sentence. You said that in all conditional sentences, there are some conditions that are always applied, including a curfew.

    Let me rephrase my question. Do you have any figures on the number of people in Quebec who have been given conditional sentences and who have been in breach of their conditions—either by not complying with the condition, such as the curfew, or by committing a new offence while they were serving a conditional sentence?

    Mr. François Bérard: I do not have that information at the moment. We do not work in the Public Security Department; we work in community groups. We do not have an idea of the total number of breaches of conditional sentences.

    Mr. Richard Marceau: But based on your personal experience... Since the beginning of our study, you are not the first person who has told us that the system works well—I am an amateur speaking to professionals—however, at the same time, our witnesses say that they do not have any figures. The only figures we have been given were for Manitoba, if I remember correctly. These figures show that in 37 per cent of the cases there was a breach of conditions or else the commission of new offences. I do not call that a wonderful result. So, since you say that the system works, you must have an approximate idea about the figures, the statistics.

    Mr. François Bérard: With respect to the people that we supervise in our case loads, at Maison St-Laurent, for example, there are 64 cases. About 10 per cent of the clients are there because of a breach of conditions. The current rate of recidivism is quite low, but I don't have the information for the entire Quebec system, the information that the ministère de la Sécurité publique du Québec would have. In terms of our own experience, there are very few reoffenders and the cases that are referred to us are generally rather difficult ones.

    Mr. Richard Marceau: You mentioned in your conclusions that there should be no discrimination based upon the type of offence. You must know that this goes against a position that was unanimously taken by the provinces last year, when all of the ministers of Justice specifically stated that conditional sentences are not appropriate in the case of serious violent offences such as those causing death or crimes against children.

    So you are saying that the provinces are wrong in wanting to distinguish between violent and non-violent crimes.

    Mr. François Bérard: Yes, exactly.

    We feel that in distinguishing between violent and non-violent crimes, the provinces as well as the federal government are taking a political stand. Also, when we look at situations—and this does not only involve conditional sentences—when we examine the level of clinical intervention, very often those who have committed violent crimes, in spite of appearances, are the ones with whom we have the greatest chance of changing their behaviour.

    I will give you an example. In the case of those who commit fraud, from the outside, if the offences are not violent, then the fraud is not considered to be all that important. From a clinical point of view, in order to try to change that person's behaviour, the clientele is much more difficult to work with. If we compare that person to someone who has committed a murder, the act itself is reprehensible and something that should never had occurred. That is why the sentences are so heavy. Those who have murdered family members or neighbours—and in this case I am not talking about hired killers—are, generally speaking, in 60 per cent of the cases, the type of people that will progress more easily and for whom the recidivism rate is the lowest.

    Once again, these are not hired killers, but beyond simple appearances, the issue of violence as opposed to non-violence is immaterial. In the act as it now stands, when, for example, we deal with parole, with the streamlined process, some people have been arrested for offences related to drug trafficking. Those who committed minor offences were released fairly quickly, but among them, there are some heavy hitters. But if we categorize crimes as either violent or non-violent, we sometimes adopt attitudes or orientations that preclude any type of intervention. Both the federal as well as the provincial governments must become more realistic in their approach. That is the opinion that I wanted to share with you. Stop kidding yourselves.

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    Mr. Richard Marceau: Do I have any time left?

[English]

    The Vice-Chair (Mr. John McKay): We'll be able to come back to you, for sure.

    Mr. Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Mr. Chairman.

    Thank you for your submission today.

    As I look at conditional sentencing, two things fly off the page for me. One is the deterrence effect or the societal sanction effect, and the other one is the public safety issue.

    When we look at the corrections system, we don't have to look very far before we find flaws in every part of it. That's just the nature of the field we're looking at, with offenders who walk away from day parole, double-bunking, health problems in prisons, food problems, and any number of human and administrative dysfunctions. But just looking at conditional sentencing and at public safety, have you experienced conspicuous public safety issues, a deficit in public safety, in relation to conditional sentencing? Does it open up a public safety threat? Based on your professional experience, does the legislation create or induce recognizable public safety issues or concerns that I should be concerned about as a legislator?

[Translation]

    Mr. Donald Beaudoin: In fact, when we were made aware of serious situations where an individual was in a bad way, it has been possible to act very quickly, as I explained, by asking the deputy public prosecutor to issue an arrest warrant or by explaining the situation to the police who could then act pursuant to a clause in the Criminal Code and intercept the person. We have indeed done that type of thing.

    With respect to the offences or the nature of the offences, we have seen over the past three years, for 1.5 per cent of the case load, that the nature of the offence was related to sexual assault. In every case where a conditional sentence was ordered for a sexual assault, the charge was invitation to sexual touching. In no case was this a repeat offence; it was always a first time sexual offence. And always within a family setting. The victims were the children of the offender or the children of the offender's spouse.

    In cases such as those, there is a relationship of trust with the victim. It involves something that does not relate to primary pedophilia with perverse connotations, which features a high degree of unpredictability. The context within which the offence occurs is important. All of these clients were also subject to clause 161 of the act, prohibiting them from having any contact with minors and from frequenting places where they might encounter children.

    Obviously, these people would be monitored more closely. There would be more frequent telephone and home checks on this individual. These people are under house arrest for lengthy periods of time. In every case, the sentences were for two years less a day. Our case load does not include any sexual offenders with 12 or 18 months conditional sentences. All of them were given a sentence of 729 days.

[English]

    Mr. Derek Lee: Before we go to the second question, you are saying that it is in the area of sexual offences or pedophilia that there is some risk related to conditional sentencing. That's where you perceive the highest public risk to be. Is that what you're saying?

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[Translation]

    Mr. Donald Beaudoin: No. A question was asked earlier about the type of offence, and I wanted to temper the response and explain that the rate was not 10 or 12 per cent of the case load.

[English]

    Mr. Derek Lee: So you were really answering another question.

[Translation]

    Mr. François Bérard: That's right.

[English]

    Mr. Derek Lee: Okay, so for whoever asked the previous question, you've added a supplementary answer.

    Now, what about my question?

[Translation]

    Mr. François Bérard: You asked if the risk was greater. The answer is no. We are, of course, working in a context where there is always a possibility that our clientele might reoffend, but generally speaking, there is no greater risk to the public with conditional sentencing. In Quebec, the stakeholders have set in place a good monitoring system. The public is in no greater danger now than it was before this system was in place. As long as resources can be added, the performance will no doubt improve and public security will be increased. That is where the problem lies at this time.

[English]

    Mr. Derek Lee: You're saying that if you had more funding, you would have better outcomes—in other words, a better public security outcome and better public safety outcome.

[Translation]

    Mr. François Bérard: Yes.

[English]

    Mr. Derek Lee: But on the same file, you're saying you don't have a public safety concern. If you don't have a public safety concern about conditional sentencing, why would you suggest that we could be even safer with more money?

[Translation]

    Mr. François Bérard: With more money, we could not only lower the recidivism rate, but work on preventing reoffending in the medium and long-term. All things being equal, we could ensure that the public would be no less safe than in the past and would probably be even safer. If we want to go much further, we will need more people to be involved.

[English]

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Lee.

    Mr. Toews.

    Mr. Vic Toews: I just want to come back to the issue of suspended sentences or probation orders, because I'm still trying to clarify this issue in my mind.

    There has always been less supervision under a probation order, but more on some probation orders. There has always been that continuum. And now we have these conditional sentences, and you say there's also a continuum. Crown attorneys or your office don't have the same conditions to enforce in certain areas. Again, there is a continuum, with some more strictly supervised and some less strictly supervised.

    What I see is that these two continuums of conditional sentences and suspended sentences overlap, so that in the heaviest supervision on a suspended sentence, we are talking about the lighter end of the conditional sentences. Is that a fair summary?

[Translation]

    Mr. François Bérard: In fact, with open custody, a suspended sentence or probation is the lightest measure for the purposes of treatment, while a conditional sentence has the greatest number of constraints, monitoring and supervision. As with the example that I gave you earlier, in one case, we are in touch with the offender once a month, whereas in the other case, it is once every two weeks, or once a week.

[English]

    Mr. Vic Toews: All right, so is there any reason....

    I'm not getting behind the philosophy, because you and I might disagree about aspects of the philosophy. I'm looking at it in a systemic way.

    I've been involved in the administration of these things from a government point of view, and I'm just wondering if there is any impediment to integrating the two systems. You would have the lighter end of conditional/suspended on the one end and the heavier supervision on the other, in one integrated system, with different conditions applying to each order, depending on the particular offender.

    I'm just looking at it as a systemic system. Let's say you had all the money in the world that you wanted. Is there any problem with integrating the two systems? That's what I'm trying to grapple with.

[Translation]

    Mr. François Bérard: I would say that there is indeed a problem integrating both systems. I imagine that you would suggest that we have conditional sentencing, perhaps with a lighter type of supervision. Conditional sentencing is based on the premise that the person would normally be incarcerated, but is not.

º  (1615)  

[English]

    Mr. Vic Toews: Well, no. But let's say—

[Translation]

    Mr. François Bérard: With probation, there is a community approach as opposed to starting with incarceration.

[English]

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

    Mr. Grose.

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

    You say you have a 10% breach rate. I have a bit of a problem with that, so let's dig a little and find out what a breach is.

    Suppose you had a fellow with a six-month conditional sentence and he had a curfew of 10 o'clock. Up to the two-month mark, you hadn't found him in breach of anything, but then you checked one night at 10 o'clock and he wasn't there. He turned up at 11 o'clock. Would you consider that a breach and would you have him incarcerated? Or would you use your own judgment?

[Translation]

    Mr. François Bérard: According to the directive issued by the Correctional Services of Quebec, and intended for their own officers as well as for community organizations, when such a breach occurs, the Crown must be advised. It is a choice that was made in Quebec and that is understandable. At this time, we do not use discretionary power to manage an initial breach, nor is it used to decide whether or not a notice will be given if a second or third breach occurs. As soon as the first breach is noted, the Crown is informed which is one of the reasons why the Crown is tied up in a series of breaches.

    Mr. Donald Beaudoin: I'd like to add that when a breach occurs, we produce a document to explain the reason for this occurrence. For example, the individual turned up at 11 o'clock, he was asked why and he explained what had happened. That is all included in the document that is sent to the Crown. Just because a breach occurred doesn't necessarily mean that the person will be reincarcerated. The prosecutor decides whether or not the situation should be submitted to a judge. In that case, the client is called to appear, and he may or may not be reincarcerated, depending on what took place.

[English]

    Mr. Ivan Grose: So the Crown has the discretion. All right, I've found that out.

[Translation]

    Mr. Donald Beaudoin: Yes, at this time.

[English]

    Mr. Ivan Grose: You keep mentioning re-incarceration. I'm assuming that these people have not been incarcerated at all. If they got a conditional sentence, they weren't incarcerated. For a breach, theoretically they would then be incarcerated. Or they could be or could not be, not necessarily. Maybe their conditional sentence could be extended. Is that possible as a punishment for a breach?

[Translation]

    Mr. Donald Beaudoin: No, the sentence cannot be extended. As soon as there is a breach and the judge orders that the person be reincarcerated, the rest of the sentence must be served.

[English]

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Grose.

[Translation]

    Mr. François Bérard: The judge cannot extend the length of the conditional sentence, but he can change the conditions of the sentence. He can reincarcerate the offender or tighten up the conditions of the sentence. For example, instead of having to be in by seven o'clock, the person might be ordered to be home by five o'clock. The judges do have a certain amount of leeway.

    Mr. Richard Marceau: Gentlemen, you stated more than once that there was a shortage of money and staff in Quebec, and, of course, you are familiar with the situation. If you were to become a minister tomorrow morning, and if money was no object, how much more in funding and extra staff would you require for Quebec?

    Mr. François Bérard: With respect to conditional sentencing or generally speaking?

    Mr. Richard Marceau: With respect to conditional sentencing. Let's say that you didn't have the winning lottery number.

    Mr. François Bérard: For conditional sentencing, we could probably use 100 more probation officers or 100 more community workers. This is based on the Quebec Correctional Service deficit of $30 million to $35 million which is required simply to enforce their new legislation.

    Mr. Richard Marceau: A $30 million to $35 million deficit?

    Mr. François Bérard: This is their total deficit. For conditional sentencing, they would need $4 million or $5 million more in order to hire 100 probation officers or community workers.

    Mr. Richard Marceau: You spoke of your case load. There are two of you for 64 cases. Do you think that is enough?

º  (1620)  

    Mr. François Bérard: No. There should probably be some adjustments according to the problem of our individual clients. At this time, in Quebec, our workload is slightly greater than, or in some cases, much greater than it should be, considering the type of supervision we should be providing. With 64 cases, the supervision is minimal. People tend to devote a lot of their personal time above and beyond the actual workload.

    Mr. Richard Marceau: Thank you. Ideally, how many employees should you have?

    Mr. François Bérard: I would say we need three people.

    Mr. Richard Marceau: Three for 64 cases?

    Mr. François Bérard: Yes.

    Mr. Richard Marceau: Thank you.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): One of the concerns you expressed during your opening testimony related to problems in calculating sentences when there has been a change in conditions. Surely this should just simply be a matter of administration. Do you believe that something is wrong with the way in which the law is structured, and that this flaw leads to this particular problem?

[Translation]

    Mr. François Bérard: No. I think it relates to the superimposing of decisions that are made by the judges. It isn't always easy to string together the decisions that have been made. The fault does not necessarily lie with the law itself.

[English]

    Mr. Paul Harold Macklin: Are you suggesting that we should be making some changes to assist the judges in making that proper calculation?

[Translation]

    Mr. François Bérard: That might not be such a bad idea; something should perhaps be done to help them to harmonize the sentences so that they would be able to tell how much of a conditional sentence remains to be served.

[English]

    Mr. Paul Harold Macklin: As experts in the field, what would you suggest would be appropriate?

[Translation]

    Mr. François Bérard: The judges should perhaps be told that they must try to harmonize their sentences. Rather than give parallel sentences, they should have an overview of the situation.

[English]

    Mr. Paul Harold Macklin: How are you going to have the first judge harmonize a sentence with a second judge who he won't even know is going to come into the picture?

[Translation]

    Mr. François Bérard: It would probably be easier for the second or third judge to harmonize a sentence, rather than the first judge.

[English]

    Mr. Paul Harold Macklin: That's correct.

[Translation]

    Mr. François Bérard: For the first judge, or even the second one if a third one becomes involved, it would be much more difficult.

[English]

    Mr. Paul Harold Macklin: But you don't have any concrete suggestions that would help in that process.

[Translation]

    Mr. François Bérard: No.

[English]

    Mr. Paul Harold Macklin: Thank you.

    The Vice-Chair (Mr. John McKay): Mr. Toews.

    Mr. Vic Toews: Given that deterrence and denunciation are two aspects of the Criminal Code in terms of sentencing, are there any crimes that you would see as being excluded from the conditional sentencing regime?

[Translation]

    Mr. François Bérard: None.

[English]

    Mr. Vic Toews: I don't think I have any more questions for these witnesses, Mr. Chair.

[Translation]

    Mr. François Bérard: No one should be excluded for the following reason: it is up to the court, and it is a question of principle, that the most appropriate steps be taken according to each individual situation. Therefore, no possibility should be excluded. This respects what we call the principle of individualized sentencing, and conditional sentencing must be part of it.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Grose.

    Mr. Ivan Grose: Do you have any cost comparisons between incarcerating someone who has been sentenced and the conditional method? What does it cost to incarcerate, as opposed to what it costs to put someone under a conditional sentence?

[Translation]

    Mr. François Bérard: I don't have the exact figures, but with respect to provincial inmates, in Quebec, the cost to incarcerate each individual is between $37,000 and $40,000. For probation, the cost is between $1,800 and $2,000 per person. Conditional sentencing would probably cost twice as much, therefore, about $4,000 per offender.

º  (1625)  

[English]

    Mr. Ivan Grose: It would seem to follow, then, that inasmuch as conditional sentencing is much better economics and costs so much less, you would be supplied with all the supervisory officers that you needed. That would make sense to me.

[Translation]

    Mr. François Bérard: Yes, you are right.

[English]

    Mr. Ivan Grose: Thank you.

[Translation]

    Mr. François Bérard: Unfortunately, the world is not always that logical. Other considerations must be taken into account.

[English]

    Mr. Ivan Grose: I know. Thank you.

    The Vice-Chair (Mr. John McKay): I missed the answer there. Just as a point of clarification, you said it costs $37,000 to $40,000 per offender to incarcerate, but I didn't understand whether it was $2,000 or $4,000 for—

[Translation]

    Mr. François Bérard: That would be $2,000 for a person on probation. Your colleague was talking about suspended sentences. Since supervision is more involved in the case of a conditional sentence, it would cost about twice as much. We are not employed by the department, but that should be the order of magnitude.

[English]

    The Vice-Chair (Mr. John McKay): Thank you.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau: No, that is all. Thank you.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Lee.

    Mr. Derek Lee: Thank you.

    I would like to ask if you have any comments on this, based on your experience.

    It is sometimes suggested that judges, when they sentence, may be inclined to go to a conditional sentence as an alternative to probation or a conditional discharge, and that the conditional sentence supervision is more costly and more detailed than any of the other options. What I'm asking is if you have noticed, in your experience, a tendency on the part of the courts to move to conditional sentencing unnecessarily. In other words, they widen the net of supervision unnecessarily when they could have chosen a less complex option.

[Translation]

    Mr. François Bérard: When we look at the statistics that are available from Quebec's Correctional Services, we see that probation is still quite popular among Quebec judges. Conditional sentencing is probably ordered in the case of those who had previously been on probation but who require more supervision than they were given previously.

    Therefore, I would say that a certain number of people have been moved to conditional sentencing, mainly those for whom probation was not a solution. But there are others whose cases we are following and who have been given a conditional sentence but who, a few years ago, would have been incarcerated. Therefore, in Quebec, thanks to conditional sentencing, those who present a level of risk that can be managed within the community are kept out of the prison system.

    This is something that we study in criminology. Do we impose a harsher sentence on those who are on probation by giving them a conditional sentence? The work that we have done in the field has shown us that the phenomenon does not really exist. There is always a risk, but in Quebec, this has not happened, because those who were transferred required greater supervision or had been given too harsh a sentence. Therefore, they were given a fairer treatment with a conditional sentence.

[English]

    Mr. Derek Lee: Just let me clarify something. If there was a default by an offender under a probation order, the response would have to be a charge and information laid under the Criminal Code, is that correct?

[Translation]

    Mr. François Bérard: —[Editor's note: inaudible]—

[English]

    Mr. Derek Lee: On the other hand, if an offender under a conditional sentence defaults, there is a separate, simpler clawback procedure, or what I'll call a clawback procedure.

    The Vice-Chair (Mr. John McKay): How does that translate?

    Mr. Derek Lee: Maybe “clawback” is not the right word. Maybe it doesn't translate well.

    In any event, the response is more direct, perhaps simpler, and doesn't involve laying information under the Criminal Code. Am I correct about the differences?

º  (1630)  

[Translation]

    Mr. François Bérard: You mean in the case of a breach of conditions?

[English]

    Mr. Derek Lee: I'm talking about a breach of condition, firstly under a probation order, and secondly under a conditional sentence. Is the job that you have to do in responding to a breach under either more complicated if there's a breach of a probation order?

[Translation]

    Mr. François Bérard: According to those who work in probation, it is no more difficult to report a breach. Unfortunately, however, ever since probation was included in the Criminal Code, the Crown has not necessarily considered such measures to be of great importance. Therefore, many probation officers have tended to only report the more serious breaches. It isn't very complicated because in both cases, the breach must be reported to the Crown. However, in the case of conditional sentences, because of social pressure, the Crown considers these measures to be more important, in view of the type of clientele relative to those who are on probation.

    Therefore, I would say that the process itself is not all that complex but is taken more seriously by the Crown when a conditional sentence is involved.

[English]

    Mr. Derek Lee: Thank you.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Lee.

    I see no other questioners except for Mr. Maloney, whose timing is propitious.

    Mr. John Maloney (Erie—Lincoln, Lib.): I'll save my question for another day, Mr. Chair.

    The Vice-Chair (Mr. John McKay): On behalf of the committee, I'd like to thank the witnesses. We appreciate the sharing of your insights. Hopefully this will meaningfully contribute to our review.

    We're adjourned.