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Mr. Chair, I have a motion that clauses 10 to 31 and clauses 35 to 38, inclusively, be voted on together or severally.
The reason is that we have no amendments to propose to these clauses. There appears to be a general consensus that the offences against children are ones that should be dealt with separately, that the increase in penalties and the creation of new separate penalties are desirable. I'd like to speak to them as a group, and perhaps that procedural aspect could be dealt with first.
On the reason for separating out clauses 32, 33, and 34, one would have to ask the drafters, but it appears that everything from 10 to 38 deals with the sexual offences against children, but clauses 32, 33, and 34 are related to other aspects of conditional releases and not necessarily in the same category. So if that's acceptable to the committee, I would propose to have them discussed afterwards. It's out of order, out of sequence, but if we can do clauses 10 to 31 and clauses 35 to 38 together, which would involve ultimately one vote, I would propose to speak, but I would speak perhaps for a little longer than ten minutes, since we're dealing with approximately 25 clauses.
I want to thank my colleagues on the committee for their agreement to deal with these as a group. It will obviously save some time, because based on our agreement on Thursday, each party has been allocated ten minutes per clause, and we're dealing with 25 clauses here as a group, so we will obviously be more efficient. I may be speaking for more than ten minutes, but I'm not going to speak unduly long.
I did want to speak to this particular section for a number of reasons. It's extremely important because we have a number of clauses increasing the sentences for sexual assaults against children. This is an abominable situation, and an abominable crime, and I think there's a consensus in our society as to the abhorrence of this particular type of criminal activity.
I want to speak to it, as well, to point out, for those who may not know, that we, as a party, offered on at least two occasions to take this particular part out of the bill and have it dealt with speedily. This was done some time ago, most recently by me in a motion in the House of Commons on October 26. It was a motion that was designed to allow this to be removed from Bill C-10 and fast-tracked, as it were, to ensure that this would get speedy passage, and not get bogged down in the debate we've been having about other aspects of the bill that are contentious and on which we've heard a lot of evidence. So it's very important that it be known that this was something we did.
In getting caught up in the rhetoric of all this, we've heard some pretty horrific statements, unfortunately, by people in significant positions of power, such as the Minister of Justice, suggesting that members of the opposition—and even, in some cases, identifying people by name—are supporting child molesters, child rapists, and criminal sexual offenders. I find that extremely offensive, and unworthy of the people who make those kinds of comments.
I say that as someone who has had considerable experience in seeing the effects of child sexual assault and child sexual abuse. I have a great deal of experience. Through most of the nineties—from about 1989 to 1997—I was a lawyer advocating for, working for, and supporting victims of the child sexual abuse that took place at the Mount Cashel Orphanage.
I saw first-hand, over a considerable number of years, the consequences to these individuals of the child sexual assault they had received at the hands of those who were in a position of trust in relation to them. I saw the consequences of post-traumatic stress disorder. I know far more about post-traumatic stress disorder and its consequences than anyone would want to know. I saw the effect on their lives, and how this changed their lives, how their own futures were affected by the consequences of child sexual assault and untreated—for the most part—post-traumatic stress disorder.
I saw evidence of the self-medication through drugs and alcohol. I saw the inability to form meaningful relationships in many cases. I had the task of trying to provide evidence and proof that their circumstances were related to the effects of the child sexual assault, and it was an era in which there was not a great deal of recognition of the consequences of child sexual abuse. To obtain a civil remedy for these individuals through the courts in lawsuits against the organization that ran the orphanage and against the Government of Newfoundland and Labrador was a long and tedious task, made more difficult, of course, by having to deal with the consequences to the individuals throughout.
So I have a great deal of sensitivity to post-traumatic stress disorder, to child sexual assault, and I find it objectionable and abhorrent to hear it suggested that in dealing with this legislation our party is somehow advocating for sexual abusers and offenders. I can't find the right words to express how abhorrent that notion is, that we would be here, in this House and in this committee, trying to find ways to prevent the proper dealing with sexual offenders, against children in particular, that are set out in part 2 of this bill.
There is somewhat of an issue here with respect to minimum mandatory sentences where in most cases they're already there. We're not creating new minimum mandatories in most parts; we're increasing them for sexual interference, for invitation to sexual touching, for sexual exploitation, and the prohibition orders are being changed. Some significant changes are being made in this bill, the creation of new offences, which are unique in that they have a preventive role. When I talk about that, there's a new offence, for example, of making sexually explicit material available to children.
This comes under the category of what is known as grooming, that perpetrators and predators on children sometimes go through a process as part of the luring and grooming of a child for eventual sexual assault; they do certain activities such as making pornography available, Internet luring that is now a specific offence, and agreeing or making arrangements to meet for the purposes of a sexual assault. These are now offences in themselves and they have a preventive role because they're designed to encounter and confront a perpetrator with criminal charges prior to an actual sexual assault, and that is important. It's extremely important to not just punish offenders, which obviously is one of the aims of the criminal law, but it's even more important to avoid the sexual assault itself. And I say that with great conviction, based on my own experience, as to what the consequences of that sexual assault would be.
These are important steps forward, and I want it clear, on the record, that we support this aspect of Bill , that it can help prevent young people from encountering, as a victim, the sexual predation of adults on minors, which is unfortunately far too common.
Of the provisions that are included in here, the Internet luring offences are particularly important. We hear about cases, from time to time, where a police officer poses as a young person on an Internet website or chat site and eventually sets up some sort of a sting operation, which is very elaborate in nature, to provide the evidence of someone who's intending to commit an offence of this nature. That takes an awful lot of police power to undertake and is not necessarily as effective as the new offences that will provide an opportunity to prevent an offence from taking place by interfering far earlier and making some of the activities that are precursors to sexual assault offences in themselves.
I wanted to put that on the record, Chair, as an important step forward in the criminal law, and to make it very clear that we support these amendments. There are increases in mandatory minimums here. While we in general have significant reservations about mandatory minimums, we see there being a consensus in society about the abhorrence of these particular offences, as they not only affect the innocence of our children but also have extremely severe consequences, in many cases lifelong, for the individual victim of a child sexual assault.
When I was a lawyer in the 1990s I spent a great deal of my time dealing with and trying to assist and eventually being successful in getting a significant civil remedy for these individuals, who also had to undergo the trauma of trials and other court activity in order to pursue this and eventually receive a reasonable settlement. There were considerable effects on their lives in terms of their being able to complete a proper education or easily form relationships, and the consequences on their own future were great. This is not a simple matter of something happening and then someone moving on. It is something that takes a considerable amount of effort, time, counselling, support, and many other things to overcome.
I do want to ensure members opposite that these provisions of this legislation will receive our full support. If any anomalies appear as a consequence of mandatory minimums—I'm not sure what they might be—they will be subject to a review. We proposed one earlier. There's another provision later on in the legislation that calls for examination of the effects of the mandatory minimum provisions. There will be an opportunity to correct any anomalies that may show up. I find it important that we put on the record our support for these provisions and make it clear that on at least two occasions we sought and offered to fast-track these provisions so they would be put into place in a speedy manner. We don't know how long the rest of this bill is going to take to find its way through Parliament, through the Senate, and then back again. We wanted to take this out and ensure it was passed as speedily as possible. Unfortunately, it's still included in the rest of the bill. As my motion this morning indicates, we also want to see it speedily passed through this committee stage.
Those are my comments, Mr. Chair.
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Thank you, Mr. Chairman.
I move that clause 34 be amended by replacing line 8 on page 19 with the following:
742.3, if exceptional circumstances exist that justify the service of the sentence in the community or if
Standing alone, that may not make much sense, so let me just try to very quickly explain the rationale.
The whole approach here is to permit the sentencing judge to consider the imposition of a conditional sentence order, notwithstanding the restrictions in exceptional circumstances. The rationale for that is that by removing the possibility of a conditional sentence for so many types of offenders, it is expected that the judge may move towards what might be called the least severe sentence, whenever possible. Now, if a conditional sentence is no longer available, the judge may consider suspended sentences followed by a period of probation if incarceration is inappropriate. But in many cases, neither a suspended sentence nor a system of incarceration is appropriate.
To sum it up, judges, defence lawyers, and crown counsel may well face situations where a more reasonable and just result is simply unavailable. Now, given what might be called legislative creep and the erosion of conditional sentences, first in Bill and now in this bill, I am proposing—this is a recommendation that was made as well by the Canadian Bar Association and indeed is based upon their recommendation—that consideration be given to including safety-valve provisions, because in effect Bill .... This is a specific case study that restricts and limits judicial discretion on sentencing. But that discretion has formed a fundamental part of our criminal justice system.
The U.S. experience with mandatory sentencing guidelines resulted there in a dramatic transfer of power from the judiciary to the prosecution service, which they are revisiting and reconsidering and are indeed moving away from as a result, in particular, of the U.S. Sentencing Commission report of just a week ago.
To sum up, Mr. Chairman, conditional sentences in Canada would give judges the capacity to shape sentences, based on their experience and the collective experience of other judges, for specific offenders who are convicted of specific offences. Any further limitations on that judicial discretion, regrettably, will tread too deeply into the important role judicial review plays with regard to the specificity of the offence, the specificity of the offender involved, and the ability to exercise that discretion appropriately, having regard for all the circumstances.
I'll be sharing my time with Madame Boivin.
Our amendment suggests that the approach being taken by the legislation is unduly broad. We would seek to ameliorate that by our provision, which would include the phrase before all of the provisions here to say that a conditional sentence would be available:
742.3, if exceptional circumstances exist relating to the offence or to the offender that justify service of the sentence in the community or if
That would be inserted before the series of conditions here.
The rationale for this is that the government's proposal is to create a whole series of circumstances where a conditional sentence is unavailable. It's been criticized by a number of bodies, including the Canadian Bar Association, whose view we agree with. There's a whole series of listed offences here, for example, that would hardly ever attract the conditional sentence in any event. They're not used for serious violent and serious property offences. They're really a tool that the courts use to seek to rehabilitate an offender by perhaps having conditional sentence of service in the community plus a long period of probation that's aimed at rehabilitating an offender.
To use the approach as is contained here--any sentence with a maximum imprisonment of 14 years or more—as a tool is unduly broad. There are many offences that have a maximum penalty of 14 years or greater that hardly ever attract that particular sentence. It really is contrary to the normal principles of sentence, one of which is proportionality, which is designed to reflect the necessary balance that must be achieved in choosing a just sentence. According to the Canadian Bar Association, for the balance to contribute to the administration of a justice system it must make sense to the public it is intended to protect, and logic and fairness require an individualized proportional sentence.
That's what we pay judges for. They are paid a considerable amount of money. We make a great deal of effort in selecting people who are experienced and knowledgeable. If you talk to judges across this country, they say one of the most important things that they do is sentencing. That's what we're paying them for. If they make mistakes, there's an appeal process. That's what we pay appeal court judges and Supreme Court judges to do, if a provincial court judge makes a mistake.
We do have a system that responds to the individual and to an individualized offence. Much of this is actually unnecessary, because conditional sentences would hardly ever apply, if ever. We have to ensure, in our view, that there's provision for exceptional circumstances. A judge is the one we've asked, as a society, to play that role in determining when exceptional circumstances exist.
The list remains there as to the ones the government record supports as being not available for conditional sentences. If the amendment were made to allow that there may be exceptional circumstances that relate either to the offence or the offender that justify a community service sentence, they may be appropriate. It may have to do with diminished mental responsibility or diminished intellectual responsibility. It may have to do with the offence itself being perhaps technical in nature or a case of somebody being a party to an offence in law but not much of a party to the offence.
In fact, there are individual circumstances that you can't predict here but that would give rise to the desire to have a conditional sentence in a particular circumstance. We think that would be an improvement to the bill to allow for that discretion.
I'll pass it on to my colleague Madam Boivin to continue our period of time on this clause.
I just want to reinforce the point that Mr. Harris made. In my opinion, the amendment we are proposing will just make this clause a little clearer for those called upon to impose sentences. As everyone who has talked to people involved in criminal trials knows, the most difficult aspect is often the sentencing. So it makes sense to provide the courts with good tools, fully accepting the fact that it is there that cases will be heard and it is there that the facts will have to be established and the situations analyzed in their entirety.
The idea is clearly stated in the case of a sentence of less than two years. So it would read: “if exceptional circumstances exist relating to the offence or to the offender that justify service of the sentence in the community or if”. Mr. Harris has pointed out clearly that we are not removing in any way the conditions that the government is proposing to add to section 742.1 of the Criminal Code, because paragraphs a to f remain unchanged. It simply clarifies a condition that will perhaps make sentencing a little easier for judges.
The judiciary tells us, not without good reason, that, as legislators, we often put a lot on their plates. It is not easy to find the right balance. A sentence must clearly be a punishment for a person at the same time as it must make sure that it is possible for the person to be rehabilitated.
I think this gives a good balance. It is just a clarification. It does not change or get rid of the system. This amendment will just clarify what the government had in mind with its Bill .
I have done a lot of thinking about this particular issue and the minimum mandatory sentences, and I was just going to say that the act we've proposed does allow for less than a minimum mandatory sentence, if the accused, for instance, has drug counselling. First of all, there is an option for that, so if there is an issue with drugs—obviously a bad habit—the court can sentence the accused to something other than the minimum.
Also, most Canadians are shocked when somebody commits a serious crime and they serve their sentence in the community, such as the case I just mentioned with a person who committed incest and sexual assaults on his daughters from the time they were nine years to fifteen years. He was only caught some twenty years later, when he fondled another child who was the granddaughter of his friends.
When that sentence came about I was ashamed of it, first of all, but I think anybody who was in the court, and any of the people who were involved, were quite frankly dismal. They were very shocked and very surprised that a person who could commit that kind of offence could then serve the time in the community.
I think that's something this section goes with, and I think that across the country we clearly need to have consistency in sentencing, to send a clear message to these people. Although I sympathize somewhat with Mr. Harris and Ms. Boivin in relation to leaving it to judges, I think as legislators we clearly have an obligation to protect Canadians first and to have consistency across the board, to let the accused know that if they commit the crime they're going to do serious time.
That's why I would not support the NDP on this particular set of amendments.
We are supporting clause 44. There's no amendment being proposed by us or by anybody, I think.
It's important for us, because if one looks at it, it's a whole series of additions to schedule I of the Controlled Drugs and Substances Act, moving a number of items from schedule III to schedule I—schedule I being the drugs treated most seriously under the Controlled Drugs and Substances Act, and schedule III being the ones treated least seriously.
We are supporting this clause because among other things, it moves certain drugs to schedule I, amphetamines being one of them and the other being the date rape drugs, which are both particularly egregious in terms of their use in society. Amphetamines are drugs that are considerably seriously abused. They're prescription drugs, mostly, that find their way into use on the street and are particularly difficult to deal with. They're addictive. They lead to other aspects of crime and they should be treated the same as the many other drugs that need a greater level of control, and should be there.
The date rape drugs should not be treated flimsily. These are, as we all know, used in circumstances that involve the exploitation of young women almost entirely, I should think, and ought to be treated seriously, more seriously obviously than some other drugs.
We had a situation where amphetamines and the date rape drugs were treated less seriously than cannabis—marijuana—and we don't think that's appropriate.
I don't have much more to say about that, although my colleague Madame Boivin.... Are you leaving us?
NDP-23 is an amendment to proposed paragraph (c), which is similar to but more expansive than Mr. Cotler's amendment. It says:
the Service uses the least restrictive measures consistent with the protection of the public, staff members and offenders;
There was considerable discussion at committee when we heard the witnesses on this issue. Professor Michael Jackson, who's a long-time writer, thinker, and intervenor on matters related to the law and correctional services, gave a very compelling presentation, drawing on the work of the Supreme Court of Canada, and tying it in with the protections that are expounded in the Canadian Charter of Rights and Freedoms and the notion that in the correctional services once a person is incarcerated that is the sentence. The sentence is one of incarceration.
The notion of the “least restrictive measures that are available, consistent with the protection of the public, staff members and offenders” is one that's been recognized as a test that can be used by the courts. For example, Mr. Howard Sapers, the correctional ombudsman, also appeared before this committee. He supported the notion and the use of the term “least restrictive measures” as being consistent with a way to determine whether or not excessive force is used in a situation where someone is in prison.
Now, I don't think we have a society that's regressive enough to say that when someone is incarcerated they lose the protection and they lose all of their rights. The rights that they have still ought to be consistent with law and with the principle of law. The test that's been used, the measure that's been used in the past and recognized by the courts, has been this notion of “least restrictive measures”.
In other words, you can't go overboard in restricting an inmate of a penitentiary or an inmate of the Correctional Service; you have to use that degree of measured response and balance that ensures that you're doing what needs to be done, but you're not doing more. I strongly recall the intervention of Professor Jackson, who said if you added those three words, “least restrictive measures”, you would be doing a service to the interests of the rights of all inmates of penitentiaries.
Unfortunately, we've seen very, very sad cases. The one that comes to mind is that of Ashley Smith, who was a young child of age 14 when she was first incarcerated. I believe the initial reason for her charge was that she was apprehended for throwing crabapples at a postal worker and ended up under the youth detention act, and she never got out. She ended up dying in a penitentiary at age 19, after having gone through a whole series of reincarcerations and re-sentencings for offences that took place inside the penitentiary.
She had significant mental health issues that clearly were not or could not be dealt with within the system, and she was subject to great restraints throughout her incarceration. She interacted with the system in a very negative way. When you see an individual like that, who has almost no hope, the only hope that individual will have, in some circumstances, is the protection of the law.
The use of the least restrictive measures that are consistent with the protection of the public, staff members, and offenders encompasses all the needs. The provisions and principles set out there on the protection of the public are very important.
Staff and correctional services have a very difficult role to play, and they are at risk too. We understand that and commend them for their job and their role. We had them appear before us as well. They need to be protected as much as possible. There's also the protection of offenders, because these offenders can fall victim to each other. The people who are inside a corrections institute are not there because they are the nicest people in society. Some of them are very dangerous. Offenders need to be protected from other offenders as well.
There is a choice of wording here that's already in the law, but it has been taken out and replaced by other wording. We think it's important to continue this wording. It is something that can be used as a test to measure whether or not our prison service is doing a proper job. I know that the corrections ombudsman, Mr. Howard Sapers, who has appeared before this committee and other committees, including the public safety committee on a number of occasions, also testified that the wording in this phrase is extremely important. It establishes a standard that is measurable and not subjective. It has been interpreted by the court and can be interpreted in a proper way--objective measurement of whether or not the prison service is looking after the actual rights of everybody. The only right that prisoners in a penitentiary, the inmates, lose is the right to their freedom. They have to obey the rules, but they shouldn't be treated more severely than necessary to protect the public, staff members, and offenders.
So I think it's important that we retain that wording in our law. This amendment seeks to achieve that.
Once again, this is a point of significant disagreement, I believe, between our party and the government. We would support Mr. Cotler's amendment, and we do so for an important reason.
As was pointed out earlier, and on another section, Mr. Cotler reiterated that there are constitutional principles involved here. And Professor Jackson, as a law professor for very many years, who studied this for 30 years, is very familiar with the constitutional history of the phrase. And there's not simply wordsmithing here, choosing one word over another. In the legal context the words have significant meaning, particularly where they've been judicially reflected upon and assessed over the years. The words “least restrictive” and “necessary” have two entirely different approaches.
“Least restrictive” is something that can be measured against something else; “necessary” is very subjective. What one person may consider necessary, another person may not, and “least restrictive” is something that can be actually analyzed and applied, because alternatives can be considered when adjudicating whether or not the least restrictive measure is applied.
To many people, that may seem to be just a lot of words, but the reality is that courts actually do make decisions based on the choice of wordings that are used. For example, if a prisoner or an offender incarcerated in a prison has a right of appeal.... Once you're in prison--we talked a moment ago about rights--you should have the right to ensure that the terms of your imprisonment or the terms of your confinement are in accordance with law. If you're put in the wrong place because it suits somebody to put you there, and all they have to say is that this is necessary, then taking into account our circumstances at facilities, if all they have to say is they think it's necessary, and nobody can judge that, then you really don't have any right to appeal or to seek a change in that decision.
If you have language that is actually subject to adjudication and has a body of precedent already set out, then you actually have some right to seek an alternative decision or to challenge a decision that's been made.
There's nothing easy about this. There's nothing easy about running a correctional service. But despite that, there ought to be rules that can be adjudicated, if necessary, if there are perceived difficulties with a particular situation.
Let's take the sad case of Ashley Smith, who was transferred many times. In fact, some have suggested that she was transferred because she was a problem. She had to transfer somewhere else. It's been suggested by some advocating on her behalf that she was transferred to avoid her having an opportunity to challenge a particular form of confinement because she wasn't there long enough for such a challenge to go through.
It's an extremely sad case, but an historic example of how a person who is incarcerated can lose their rights to adjudicate their circumstances, to have some person outside the institution have a look at what's gone on and in fact tell the correction services where they have gone wrong, if they have in a particular case.
If you say “necessary”, well, if you only have certain facilities, they say, “Well, it's necessary to do this just because we don't have a proper facility in this province.”
If “least restrictive” is there, it may be—it may be—that the correctional services might be required to provide a less restrictive environment in order to be consistent with the rights of an offender. Or it might be necessary to have a least restrictive environment established to ensure that people like Ashley Smith, with mental health problems, are not subject to conditions that would exacerbate and make worse their mental conditions, to the point at which they cannot operate within the system and their lives, as in the case of Ashley Smith, are placed at risk.
These are fundamental questions. It's not simply a choice of words. These are fundamental questions, and when we have such distinguished academic legal scholars as Professor Jackson come before us and say.... I recall the degree of frustration in his voice, pleading to be listened to, saying that this is an important principle. He said if those three words are there, at least those three words are there, the individuals will have some constitutional protection spelled out.
We shouldn't be doing things here where someone will have to decide at the next opportunity, the next government, to have to fix all these things, these problems that have been created, these rights that were diminished and watered down and ignored. These are fundamental aspects of our legal system. The Charter of Rights, by itself, only has meaning when it's being interpreted and followed and the spirit is being contained in other aspects of our law. According to our expert witness, Professor Jackson, and according to Howard Sapers, the corrections ombudsman, this is a phrase that has meaning, that's enforceable, that's a standard by which the behaviour and the activities of a correction service can be measured and can be praised or in some cases criticized for the purposes of making things better.
I wanted to speak strongly on this point. It's an important constitutional principle. It's consistent with the Charter of Rights and Freedoms and a phrase that we believe ought to stay in the law.
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I agree with Mr. Harris in relation to some of what he said. I think he's right that judges do interpret every word, and I think the words are significant in this particular case.
I listened to Mr. Jackson's testimony as well, twice, and bluntly, I was not persuaded. There's somewhere that we, as legislators, have to draw the line. I think the section that is reflected in the government's own words is good, very good. I believe, bluntly, that the least restrictive method is utilized in either--I can't remember exactly, I was trying to think of where--the Youth Criminal Justice Act, the Young Offenders Act, or bail reviews, or, indeed, conditional sentences. I know that the amount of case law that has been generated by those words, in relation to “least restrictive” is tremendous. It has been ten years since I practised, so I don't remember exactly where I found that, but I do remember that those words utilized in other situations are tremendous.
I bluntly think the line should be drawn somewhere else. So I will respectfully disagree with my colleague Mr. Harris. I think the government's wording is good in the circumstances, and “least restrictive” I do not believe is appropriate in these particular circumstances.
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The circumstances are that there will now be two types of segregation.
We have administrative segregation provided for here, without any opportunity for an independent adjudication. If someone is going to be put in segregation—and when we're talking about segregation, sometimes it's called the hole or solitary confinement, and there are various types of conditions associated with it, depending on the institution, the place, and the facilities—it means being segregated from other inmates, and in some cases segregated from other personal contact for long periods of time each day, in some cases 23 or 23 and a half hours with a half hour of exercise. The effect of that can be extremely severe on certain persons and personalities or mental states. Human beings are social animals, if I may use that generic term, or social beings, and interaction with others is an extremely important part of someone's mental well-being.
If the segregation is taking place because someone has violated the rules or done something that constitutes a danger to other inmates, then for disciplinary reasons that person can be put into segregation for a period of time. That period of time has to be determined based on rules that are related to the offence, if it is indeed an offence--the seriousness of the offence, the seriousness of the behaviour involved, the previous record of an offender who's incarcerated, and whether this has been used before. These are considerations that are taken into account, and there's an adjudication process that's involved.
But if you're looking at administrative segregation, the proposed changes—according to the critique we've received, for example, from the Canadian Bar Association—would actually undermine the protective umbrella of law, which is really designed to prevent an abuse of authority. It also can legitimate—under the colour of what appears to be benign language—a more repressive regime inside an institution where the inmate has no recourse, except to complain to the ombudsman, who has a different kind of role.
There's no independent person involved, no independent hearing before an inmate is confined to an administrative segregation. In accordance with the amendments that were proposed, if you had an independent review, or an independent commissioner, or an independent chairperson, the idea would be to ensure that there's no reasonable alternative. That's a decision point in the bill in clause 60 that says “The institutional head may” do this “if the...head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes”—not finds as a fact, but believes—“on reasonable grounds that...the inmate has acted” in a certain way, and pass judgment on various activities.
There's a tremendous amount of subjectivity in that rule, and it allows for—it's not necessarily going to happen—an abuse to occur unchecked. There is no right of appeal from this, no independent adjudication, and nobody who's on the outside looking in, as it were. Many institutions, including correctional institutions, have this sort of corporate culture or attitude or approach that feeds upon itself.
Inside the tent we have the same problems. We're dealing with difficult inmates, we're dealing with problems that they're causing trouble for us. It may be felt that they're jeopardizing the security of the penitentiary, the safety of any person. That would include the person himself or herself. So there comes a point of judgment that takes place, and the perspective is an internal one.
The idea of an independent adjudicator is someone who is not caught up in the day-to-day stresses of the institution and who can evaluate in an independent way and engage in what amounts to not a debate—“debate” is not the proper word—but in the approach, saying “Look, in this particular case there appear to be reasonable alternatives to this very restrictive and potentially damaging segregation that should be tried before administrative segregation takes place”.
I think if someone like Ashley Smith had access to that type of independent adjudication, other alternatives would have been suggested, made available. The attention of the outside world, as it were, could be brought by an independent, objective observer to that process.
So we can't accept a system of administrative segregation that's so dependent upon the opinion of one person, who happens to be the institutional head. That's a deprivation of freedom of a very considerable extent. If one looks at the Charter of Rights and Freedoms, which is one of our great measuring tools, it's the liberty even within the confines of an institution to have the ability to associate with other individuals. To remove that right for administrative reasons, with simply the opinion of one individual who happens to be the head of that particular institution, is not right.
We can't support that. I think we have to oppose that, which is why we propose these amendments. I'm sorry to hear that they're out of order. I'm sorry to hear that the government is not proposing this additional protection for individuals who can be afflicted by this and affected by life-altering circumstances in the very sad case of Ashley Smith. But there are many others who are incarcerated, who have significant mental health problems that are not being properly addressed in our institutions. This has been commented on many times. It's a very sad feature of our criminal justice system that so many people find their way into penitentiaries, instead of into places where they can get the proper level of treatment and necessary protection.
We have suicides occurring inside penitentiaries. This happens when people are isolated as well, because it does lead to depression, it does lead to a loss of self-worth. It does lead to significant emotional and psychological pressures. And it doesn't provide any kind of support that you can get from a fellow human being in times of emotional distress and trouble. All of these things are taken away from you by any form of segregation, whether it's administrative or disciplinary. Having the important protection of an objective person who is not a part of the institution, who has the proper experience to make these kinds of judgments, who can suggest reasonable alternatives, and in some cases can ensure that the head of the correctional institution gets the funds from the government to implement them.... It's one thing to say “I'm putting this person here because I have no alternative”....
If an independent adjudicator said, “There are reasonable measures. You may not have them at your institution, but you should”, then the institution can go to the government or to the Solicitor General and say, "Look, I'm being told that I can't use this administrative segregation because there are reasonable alternatives, but we don't have the money to implement them. Give us some more money. Make sure that this person is not being treated improperly because there's a lack of funds." That's the importance of this kind of alternative.
That's why we can't support this, because it precludes the kind of objective assessment that we believe is necessary.
:
This is the one, of course, that gives meaning to the word “segregation”, the limitations that are placed there. It says the inmate “has the same rights and conditions”--but it doesn't mention privileges--“of confinement as other inmates, except for those that...can only be enjoyed in association with other inmates”. This is the problem with administrative segregation, because it does have this isolating fact.
Administrative segregation for reasons of security you can understand. Without the presence of an independent adjudicator, you do end up having the possibility of major dissociation by an individual, the inability to maintain their social equilibrium and all of those things. Although it's stated in a positive way, it does make it difficult for individuals who have mental health issues or other problems that.... It's not a question of enjoying someone else's society; in many cases it's a necessity to have social interaction.
One of the other problems that we have with this is if you look at the clause as a whole, particularly on page 36, the clause says: “An inmate in administrative segregation has the same rights and conditions of confinement as other inmates, except for those that...cannot be enjoyed due to limitations specific to the administrative segregation area...”.
Now, that gets us back to this whole necessity issue--you can't do this because we don't have facilities for that. We don't have a television in our administrative segregated area, so therefore you can't watch TV. Well, why don't you have a TV there? Isn't that a reasonable thing to have? Well, we simply don't have one. End of story.
Is that the law that we want to have in effect for someone who is placed in administrative segregation? Not only are they deprived of---
:
That's hardly a point of order.
I think I did say at the outset that we're speaking to ones we're opposed to. If we were supportive of it, and had good reasons for supporting it, we might speak to it, but we'd be more inclined to group them if there were a series of them along the same lines.
No, my concerns here are that this follows on from clause 60. Clause 60 establishes this administrative segregation without any independent adjudicator, one of the consequences of which is clause 61, proposed section 37, which says that when you're in administrative segregation you have the same rights and conditions except for ones you can't enjoy because of limitations specific to the administrative segregation area.
So if there are no exercise possibilities, if there are no opportunities for—and I'm using a mundane example—watching television, listening to the radio, playing music, or whatever it is that might give a person some social replacement for the absence of people, then they don't get that if it's not there. There is no requirement to have reasonable conditions, no requirement to have so-called least restrictive, no requirement for an independent adjudicator who can talk about reasonable alternatives, or suggest that this situation, particular to this institution, or particular to this administrative segregation area, is unreasonable, and that reasonable alternatives exist and should be found. That's the problem I have with this particular provision.
It's one thing to set up an administrative segregation--and as you may have noticed, in principle we don't object to that. But you're going to say it's only based on the determination and the opinion of the administrative head, and then you say there can be limitations as to what can be enjoyed because of the limitations that are specific to the segregation area. Well, that basically says that if we have a certain particular inadequate area, because of the nature of the institution, or because of so much overcrowding because we've got so many prisoners now as a result of these laws that are being passed, the place is full to the nines, and we've created a new administrative segregated area, but we haven't gotten around to outfitting it yet, but you're stuck there anyway, because that's all we've got, well, that's perfectly legitimate. In fact, it's legitimized by this particular provision.
Mr. Chairman, I think this is unacceptable. You go down a road that starts off with just removing this “least restrictive”. We're just getting that out of there because that's been.... I don't know why, or you like “necessary” instead. Now, necessary also applies to the limitations of the area that are in that particular institution. Well, how many institutions do we have that have inadequate provisions for administrative segregation? What are the limitations we're talking about here? I've come up with a couple that I'm thinking of offhand, but I'm not an expert in corrections. But I do know, having been in a number of penitentiaries in this country in my work as a lawyer, that there's a great deal of variety and a great deal of disagreement about an appropriate level of an operation for a prison. Many of them are extremely old. Many of them don't have modern facilities.
It's all very well to say, “Well, you're in prison, too bad”, but we're talking here about a prison within a prison, an administrative segregation area that has further limitations that are....You've stated it in a positive way: it's called inmates' rights. They're the same rights and conditions, except those that aren't there. That's what it says--“limitations specific to the administrative segregation area” in a particular institution. Well, it's great to say you have rights if you have rights to everything except what you don't have because those limitations are specific to the administrative segregation area.
It's a use of words to deny the very rights that the section says it's designed to grant. I think that's inappropriate, and it follows from the decision to pass clause 60, which allows an institutional head to order the confinement to administrative segregation, period. I don't really see any limitation of time here. I don't see any limitation of time.
Administrative segregation can be permanent, as I read this. Maybe there's another section, and maybe Mr. Jean or somebody on the other side can point to the fact that there's a limitation here or there's a method for this administrative segregation to end. But I don't see any limitation, other than saying the inmate is to be released from administrative segregation at the earliest appropriate time. Well, that's great. Who decides what that is?
I know I'm jumping back to another clause, Mr. Chairman, but it's clause 60 that establishes the conditions. It says you're going to be deprived of these rights, essentially for as long as the administrative head considers it's appropriate to keep you in administrative segregation, but they'll let you out as early as it's appropriate to let you out.
Again, these words like “appropriate” and “necessary” are subjective in nature. They are not bound by this constitutionally recognized principle of “least restrictive”. That is a very important problem that we have with this. Clause 61 continues that level of restriction, which I'm afraid is very, very discriminatory against individuals in this situation and leaves them open to abuse or arbitrariness. It could lead to injustice inside our penitentiaries
I am opposed to this clause, as are all members of my party.
Basically, we also have to consider the effects that clauses like this might have on the mental health of inmates. Studies show that there are effects on the mental health of prisoners living in segregation for 30 days; they display more aggressive and unhealthy behaviour. So they will be more dangerous in the future. That is something we must think about.
Anyway, inmates in segregation can only receive visits in areas specifically set up for the purpose, where the visits go on behind glass and by telephone. The measures in place already restrict family visits. So why do we need to go further and abolish them completely? Once more, let me stress that this can have a psychological impact and adversely affect an inmate's chances of rehabilitation.
That greatly concerns me. In my view, it is unnecessary since measures are already in place to restrict visits to someone in segregation.
Finally, like my colleague, I see no administrative limit on this kind of segregation. How is the length of time determined? The clause restricts visits for a maximum of 30 days. But I am concerned about the mental health of the inmates and the negative behaviour that could result from segregation of that kind.
Clause 64 is composed of two parts having to do with allowing the corrections service to impose a requirement that any offender who is on a “temporary absence, work release, parole, statutory release, or long-term supervision that restricts their…geographical area or requires them to be in a geographical area” wear a monitoring device. Also, there's a provision there that the offender “is to be given reasonable opportunities to make representations to the prescribed official in relation to the duration of the requirement”.
This is something new, and there are no requirements here other than that the demand may be made “in order to monitor their compliance with the condition of their temporary absence, work release, parole, statutory release…”. We know that statutory release is something that takes place automatically as a result of the nature of sentencing, so everybody ends up on statutory release. Sometimes people apply for parole and get that. The parole board could impose conditions, but this is allowing the corrections service itself to do that. That's something new.
I wonder if the word “may” here is actually going to lead to circumstances where, given the nature of technology, it's going to be ultimately required in every case, and that this is something, regardless of the nature of the offence, regardless of the propensity of the individual involved, regardless of circumstances....
What is the justification for this, I ask rhetorically? Why is this necessary and being made available for every single person, simply in order to monitor their compliance with a condition? It's a bit of a big-brother type of approach, rather than one that recognizes that these conditions of temporary release or temporary work releases or parole are part of the rehabilitative process, and depend on recognition by the service that these are privileges that are in the nature of a temporary absence, based on the condition that there's a rehabilitation plan—talked about earlier in this legislation—that is called for. There are, as Ms. Findlay pointed out earlier, some provisions here that support and emphasize rehabilitation.
My fear here is that this becomes another punitive approach that may come from a view that every single person who is subject to a sentence, of any kind, is going to have a monitoring device on them until the very last minute. There's an opportunity here to make representation, so I guess somebody can say “I want to make representation; I want to ask that I no longer be required to wear this bracelet”, or whatever the monitoring device happens to be.
There's obviously a significant stigma associated with that. It may become an automatic requirement in all circumstances, which would in this case be arbitrary and unnecessary. There doesn't appear to be any finding of necessity here. It ignores totally the notion we talked about earlier of the least restrictive method of dealing with prisoners. There's no notion of that there at all. It's just blanket approval of the service being permitted to make this demand on any person subject to a temporary absence, work release, or any other that requires a person, for example, not to leave a province. If someone is released to go to work, they're probably not permitted to take a bus to the nearest town.
This is designed to closely control individuals without any reference to it being necessary in order to meet the ends of justice. It's simply a further restriction placed on someone for what appears to be an arbitrary reason.
We would be opposed to that. Maybe some of my colleagues would like to add to my remarks. It's something that we oppose.
:
Just for the record and so that Mr. Jean's ears will be properly attenuated to my remarks, I want to speak in favour of this particular amendment, because it does speak to rehabilitation.
One of the very sad aspects of our prison system is that the aboriginal population is significantly over-represented in our prisons. I think perhaps six or seven times, if not more, of their percentage of the population are in the prisons. It may actually be higher than that in some provinces where aboriginal people are incarcerated. Their rehabilitation is particularly spoken to here in proposed section 84:
If an inmate expresses an interest in being released into an aboriginal community, the Service shall, with the inmate’s consent, give the aboriginal community
(a) adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and
(b) an opportunity to propose a plan for the inmate’s release and integration into that community.
This is an improvement to the existing law, and it allows for the aboriginal community to play a role in assisting the reintegration of that individual into the community. I hope—and I just hope, because I can't propose any amendments that would spend money, as I've just found out, at least in relation to the proposal for an independent board—I hope that resources will be provided to assist aboriginal communities in playing a positive role in this integration process. It's extremely important that we try to support aboriginal people who have to endure the conditions of incarceration as part of their punishment, I'm not denying that, and in addition also have to endure the cultural community dislocation that occurs when they are in a correction facility, sometimes for lengthy periods of time.
I do support this. We support this as a party. We think significant extra efforts ought to be made to assist aboriginal people to reintegrate into their community. That may require more than just a plan as proposed here. It may require significant resources. I would encourage the government when considering the implementation of clause 66 of this bill to consider programs and resources that might be needed to make this more effective.
If aboriginal people are able to return and be integrated into their community and associate with other members of that community in a plan that's considered by the community itself, with the elders and the groups within the community, their success in reintegration is going to be enhanced.
Those would be my comments, Chair. Perhaps some of my colleagues would like to express themselves on this as well.
:
I'm delighted to hear that, Mr. Jean. At least the public has access to it. But I guess it's like the administrative segregation areas we were talking about earlier: if they're not available, people don't have a chance to have access to them. Unfortunately in this case, a lot of people watch things through television. If they can only hear the audio, they either don't look at a blank screen or they find other ways of doing it. But it's unfortunate. Nevertheless, we are where we are and we shall continue.
I want to speak in favour of clause 68. It's a very interesting clause, which might come as a bit of a surprise to the public and also to some of us legislators, to say that there's a possibility that people actually would want to stay in prison longer than their sentence. It sounds a bit ironic, but once one thinks about it, it's easy to understand why. There could be a variety of reasons.
I'll read the clause out. It says:
At the request of a person who...is entitled to be released from a penitentiary on parole or statutory release, the institutional head may allow them to stay temporarily in the penitentiary in order to assist their rehabilitation, but the temporary stay may not extend beyond the expiration of their sentence.
Now, if someone is on parole, they're usually out before the end of their sentence. Statutory release is before the end of their actual sentence. That means they'd be on the street. Some people may not have any place to go immediately. If they have a place to go in three weeks but not today, they might be on the street for three weeks.
Some inmate might be in a situation in which they are in immediate preparation for some significant event, such as a graduate education exam that allows you to get your grade 11 without going to grade 11—you can write an exam and you study inside the penitentiary as you're doing this qualification. Next week or the week after, you don't want to be out on the street in a situation in which you might not have the resources or systems to finish that, and it may be eminently desirable to stay in the penitentiary for another week or ten days to conduct a particular examination or qualification that would assist in your rehabilitation.
Despite the irony of this particular provision, it is actually something that can be of substantial assistance to an inmate in his or her course of rehabilitation. So we wish to support it wholeheartedly and would expect fully that the institutional head would take the reasons into consideration, “in order”, as it says here, “to assist their rehabilitation”. It is at their request that this takes place.
I think it's a positive thing.
Those are my remarks.
:
Clause 92 allows a peace officer to arrest someone without warrant if they've committed a breach of their parole, statutory release, or unescorted temporary absence, or whom the peace officer finds committing such a breach. Again, it gives the peace officer the kinds of powers that normally reside in a justice of the peace in terms of whether the public interest is satisfied without establishing the identity of the person or arresting the person, or if he believes that the person will fail to report to a parole supervisor.
This is a situation where if somebody is violating a condition of temporary absence or parole, the parole officers are the ones who revoke someone's parole or take action of that nature.
This is giving a peace officer the power to carry out an arrest, effectively arrest someone for violating a parole condition, which may be a minor condition. Conditions of release or parole may have all sorts of conditions attached to them, and it is really in the parole officer's or the parole supervisor's authority to determine why this is necessary. There is no real evidence to support that. We haven't heard of any real examples as to why this is necessary. There is no evidence that the existing framework we have, where if someone is violating parole, if that's a problem and it's a necessity for the parole officer to yank the parole, then it's simply a matter of notifying the parole officer and there are mechanisms there already to address these concerns.
They have ready access to parole officers. They're aware of who they are. They are normally aware of who may be on parole within their community, and there's no real reason why this power needs to be given to peace officers.
There's a little bit of a give and take, if you want to suggest that, in parole. Part of the parole provisions is to seek the rehabilitation of the offender. I don't think it's necessary to be punitive in every respect on every occasion and to essentially engage peace officers in this process without the parole supervisor. It appears to be unnecessary.
We think this is an unnecessary addition and that the work of supervising parole should be left to the parole officers and that the decision should be up to them as to whether parole ought to be revoked and the person picked up.
I'm going to give a possible speculation to our colleague across the way about why this hasn't been possible before. I think it's because in this day and age of electronic communication it's much more possible, even easy, for an officer to know through electronic databases what the specific terms of release are. That probably wouldn't have been the case even ten years ago. So I think it's essential for us to update our laws to match the technologies that are available.
The second point I'd like to make about this is that we recall that the purpose of parole release is, in a paramount way, to protect the public. Consequently, the conditions of parole are for the purpose of protecting the public. It's therefore necessary, in my view, to allow officers to protect the public by allowing them to arrest people who they find breaching terms that had been imposed for the purpose of protecting the public.
Finally, I will say that even if an officer arrests someone without a warrant, there are statutory means to allow the officer to release the individual who has been arrested, and that can be on an undertaking. In most cases it would only be in an exceptional case that an officer would necessarily hold someone for a bail hearing, but I suppose that would be in the officer's judgment.
Thank you.
:
Thank you very much, Mr. Chair.
[Translation]
The problem is in the Criminal Code, don't you see?
[English]
That's where the correction must be made, and it is not within our power to correct the Criminal Code.
If we decide that in the amendment to this act we are going to use different terminology from what is in the Criminal Code, then we're creating confusion. If a French-language lawyer, a francophone lawyer, looks at what we have before us, he will know exactly the section in the Criminal Code to which it refers. If we change this in any way, then that will no longer be the case. There will be in fact confusion sown about what section of the Criminal Code is being referred to. He will look and see one marginal note here and will find a different marginal note in the code and this will cause doubt and confusion.
I think the correct solution must be to change the Criminal Code, and that's not possible for us today. Barring that, this act simply should make reference to what's in the Criminal Code.
I think we should vote on it.
[Translation]
I think we all understand that none of this changes the wording dealing with the offences, which is clear and precise. But there is a principle in law that states that Parliament does not speak in vain. Perhaps we do not need to be so careful in this particular case, but, under that principle, just to put our minds at rest, we should ask our experts and our jurists to look into it quickly so that we know why the two headings are so different. But there is still a subtle difference that is interesting. If I say…
[English]
“sexual exploitation of person with disability”, that's kind of the section.
[Translation]
In French, it says: “personnes en situation d'autorité”. Those are two different concepts. In a way, one is talking about the victim and the other is talking about the criminal.
We may have stumbled on this purely by chance, but it is something that should be corrected. If we cannot correct it in this process, through Bill , I mean, someone should at least come back to us at the end to tell us if it is appropriate to bring forward some amendments.
I am Joint Chair of the Standing Joint Committee on Scrutiny of Regulations. That is where we spend our time studying regulations with a view to finding words here and there that are different in French and English and to making sure that they are correct, in headings or anywhere else. Headings may not have the force of law, but people often use them anyway.
Though we are told that we must not use headings, can we at least make this amendment to put our minds at rest in this case? I would even accept being told that we are going to make an amendment in a future bill to correct something that everyone would agree with, given that it makes no sense now. For heaven's sake, it seems to me that it should not be rocket science for us to be careful and wait until tomorrow.
Sometimes people ask me if I think I can get amendments passed. In cases like this, cases where we should be able to amend headings that contain such obvious errors, but we are not able to—surely you agree that the changes are superficial—then we have a problem. Maybe it is because we have no way of changing anything to anything. But come on.
:
Just to clarify, there are two different sets of schedules being talked about. The schedule that's in the Criminal Records Act is essentially the flagging schedule for sexual offences. So that is a different matter entirely from the schedule that is set out in the Corrections and Conditional Release Act.
In the CCRA, schedule 1 is essentially a list of sexual offences and schedule 2 is serious drug offences. So really, it's just an articulation, a listing, or a grouping of types of offences, and the lists relate to different aspects of correctional management so that when decisions are being made, for instance, with accelerated parole review, which was just recently repealed...but, for example, offenders under schedule 1 and schedule 2 were ineligible for those provisions.
So the list exists essentially just to give a grouping of offences so that operators of the correctional system can reference who may be eligible or not eligible for certain provisions of the act. That is separate from the schedule that's set out in the Criminal Records Act. In the CRA, it's essentially a listing of sexual offences. So when someone receives a pardon and then applies for a vulnerable sector position, for example, like a baseball coach or a hockey coach, that record can then be matched to the flagging schedule so that if somebody applies for that vulnerable sector position, the RCMP will get hit on their CPIC system and then that will be transmitted to the Department of Public Safety, which then flags that to the minister. The minister can disclose that record. So that's the function of the Criminal Records Act schedule. It's a flagging schedule for sexual offences.
But with respect to the CCRA, there is a listing of sexual offences in schedule 1 and serious drug offences in schedule 2 that relate to the operation of the correctional system and decisions that are made by correctional officials.