I call the meeting to order.
This is meeting number 47 of the Standing Committee on Justice and Human Rights. For the record, today is Wednesday, February 9, 2011.
You have before you the agenda for today. We're continuing our review of Bill .
I've asked the clerk to distribute the steering committee report for approval at the end of our meeting, so we'll leave maybe 10 minutes' time at the end. Monsieur Ménard also has a comment to make about our Monday meeting at that time.
To help us with our review of Bill , we have three parties. First of all, appearing as an individual, we have Mr. William Marshall, director of Rockwood Psychological Services.
Welcome to you, and my apologies for us being late. We had a little bit of a delay with our bus. Thank you for staying around.
We also have, by video conference from Charlottetown, Prince Edward Island, representing the office of the Attorney General of Prince Edward Island, Randall Fletcher, sexual deviance specialist.
Welcome to you.
We also have, by video conference from Brantford, Ontario, representing the Canadian Criminal Justice Association, Stacey Hannem, who's the chair of the policy review committee.
Welcome to you as well.
I think you've been told about the process here. Each of you has 10 minutes to present, and then we'll open the floor to questions from our members.
Mr. Marshall, perhaps you could start.
I'm accustomed to being held up, because I've just spent the last two days in court, and you know what that's like, so no apology is necessary.
Let me just briefly tell you what I do and why I'm here. I was a professor at Queen's for 28 years. The law required me to retire in 2000 when I turned 65, but I've continued to do research and clinical work with sexual offenders. In fact, it's a bit broader than that, with a variety of offenders now. I presently run programs in two federal prisons for sexual offenders.
I'm also the director of treatment groups at a mental disorders institution in Brockville, which is a combined institute of provincial corrections and provincial mental health services. I provide the treatment groups for all of the offenders in that 100-bed institution, including the 25-bed sex offender unit.
I've been doing research on and treatment of sexual offenders for 42 years and set up the first treatment program in Corrections Canada in 1973 after a dreadful offence by a released offender.
I'd have to say that from the late 1980s, when Ole Ingstrup became the Commissioner of the Correctional Service of Canada, federal corrections was transformed into, in my view, easily the best correctional service in the world. Its goals were not only to properly protect the public by having secure facilities so that these fellows didn't escape--or at least very few of them--but also were about providing funding for a whole variety of rehabilitation programs that over the years have been shown to be remarkably effective.
I'm sorry to say that Corrections Canada have reversed their strategies over the last year and have markedly reduced the range of programs. In particular, they've removed all of the psychologists from providing treatment for sexual offenders, in spite of the fact that their programs for the very highest risk, high risk, or moderate risk have all been shown to be remarkably effective. As a matter of fact, they're the most effective programs in the world. I used to boast wherever I'd go. I consult in 26 countries around the world and I would boast about the remarkable facilities and the effectiveness of Corrections Canada.
So I'm very sad to see the efforts at rehabilitation being significantly diminished. I would say, from what evidence we have, that the programs as they are now going to be constituted will probably have little or no effect in reducing recidivism. And we have to keep in mind that the victims of these fellows are innocent women and children, for the most part.
I think when you're proposing to change the sentences for sexual offenders you have to consider what the goal is and whether it's just punishment, which is certainly the American model--and we only have to look at their prison system to see how remarkably ineffective and costly that is--or whether it should include the possibility of rehabilitation.
In regard to length of sentences, from the work by the Carleton University criminologists, led by Don Andrews, the evidence and the large numbers of meta-analyses we have indicate that increasing the length of sentences has a remarkably small effect, but it's in the wrong direction. It actually increases recidivism. I can refer you to that literature--not right off the top of my head, but I can provide you with references to that literature if you're interested.
I think if we're going to increase the length of sentences we have to be cautious about considering the details of why we're doing this. Given that we have a neighbour to the south that's readily available--having done just this--we have to look at the effects of that.
As for the effects of increasing the length of sentences, as I've said, not only does that appear to increase recidivism, it inevitably leads to--and is already leading to--overcrowding in our prisons, which has never been a problem, really. But it is becoming one, and it will become even more so. What this effectively does, even if you provide the resources to do rehabilitation work, is that it eliminates the possibility of doing any.
I've visited countless numbers of American prisons and they are so overcrowded that you couldn't possibly do treatment under those conditions. It's just an impossibility. As a matter of fact, the majority of the states just give up and make no efforts at all. But they at least admit that they can't do it, so they don't bother to try. That of course unfortunately ends up with a majority of sex offenders--or a large number, anyway--in sexually violent predator programs because they haven't been offered the opportunity to reduce their risk before they appear before those.... It strikes me that the Americans have a strange constitution, really; how that gets past their constitution is beyond me. Anyway....
I think you need to keep in mind that increasing the length of sentences is inevitably going to lead to overcrowding. It will reduce any possible efforts at rehabilitation. Corrections Canada has already gone down the road of seriously damaging their international reputation in effectively dealing with offenders of all kinds and, in particular, sexual offenders.
I don't think I have anything specific to say about any of the particular offences. I suppose some of them strike me as a bit unusual.
I think incest is rather unusual descriptor, really, because it encompasses adults who presumably have consenting sex with each other--siblings, for example--and who will get penned up as being viewed in the same light as someone who's molesting their daughter, even if their daughter is 17 years of age. I think that's a quite a remarkably different kettle of fish. I don't know how you can convey in the law those kinds of differences. It's in the hands of judges, I guess, and what decisions they come to is open to interpretation.
I think also exhibitionism.... Some exhibitionists, but remarkably few, graduate to more dangerous acts. I think we need to distinguish exhibitionists who offend against adults from those who offend against children, and of course you do, but for exhibitionists who offend against adults, remarkably few of them graduate to anything more dangerous. It seems to me that a minimum sentence of 90 days for a first-time exhibitionist is pretty stiff.
Already being an exhibitionist and getting his name in the paper is going to have remarkably serious consequences for his life, his family, and his children. Sending him to prison for 90 days is so trivial...what can happen in 90 days, of any value, is beyond me. That just seems to add a burden that seems fairly useless to me. So I would just discourage you from those minimums for exhibitionism even on summary conviction of the 30 days, so what drives that....
What we need as a minimum for rehabilitation efforts, and I know that your concerns are with more than just that...what we need for most of the serious sexual offenders, and I mean by that men who molest children at whatever degree of molestation it is.... That strikes me as a serious offence, and I would certainly like everybody who molests children to go directly to jail. I don't have any reservation about that. The question is, how long is useful?
What we need is for them to be in a prison for three years where we can provide treatment. Three years is the minimum requirement to provide satisfactory rehabilitation. That's because most of these men not only have problems relating to their sexual dispositions, but many also have problems of anger or substance abuse. So we need to get them into other programs, and I must say that those other programs have markedly diminished in scope and adequacy in the federal corrections system.
Then, of course, there's all the processing at the front end and moving them about from institution to institution. So we need at least three years. I would recommend that for sexual assault of adults and sexual assault of children it should be a minimum of three years. It would make more sense, in my view.
I've handed out some of those copies on the effectiveness of sexual offender programs in the federal system. I hope you have them.
To give you a little of my background, I am employed by the Office of the Attorney General in Prince Edward Island. Basically, I see anybody and everybody charged with a sexual offence in Prince Edward Island.
P.E.I. is perhaps a little unusual in that we are able to offer treatment to everybody who's convicted. In addition, the majority of people who either plead guilty or are found guilty undergo a comprehensive assessment prior to sentencing, which means that at the time of sentencing the judge has access to expert opinion regarding the person's level of dangerousness, the nature of their offence, what's needed in order to reduce the risk of recidivism, and what's needed in terms of external controls and treatment.
In preparing for this, I actually thought that I probably couldn't say anything better than to quote from a position statement that was created by ATSA, the Association for the Treatment of Sexual Abusers. It has approximately 3,000 members worldwide, made up largely of people who do research and clinical work. Dr. Marshall, who you just heard, is a past president of ATSA.
In November of 1996 they published a position paper. I'm going to quote some of that. They said:
It is important to understand that sex offenders are not all the same and, in fact, this heterogeneous group of individuals includes a tremendous variety in age, psychological profile, and history of offending.
...Many people's awareness of sex offenders has been formed by media descriptions of the most serious offenders, frequently offenders who also murdered their victims. Certainly these offenders have committed very heinous acts and merit society's attention and censure; however, it is important to realize that this type of offender does not represent the typical sex offender.
They state that people who commit sexual offences “differ greatly in terms of their level of impulsiveness, persistence, the risks they pose to the public and their desire to change their behavior”. They also say that “[e]ffective public policy needs to be cognizant of the differences among” people who sexually offend “rather than applying a 'one size fits all' approach”.
That kind of reiterates Dr. Marshall's comment about the difficulty in drafting legislation that's going to recognize those differences. I think when you start imposing minimum sentences you're taking away from judicial discretion and from being able to tailor both the sentence and such things as probation orders to what's needed.
To touch a little on what Dr. Marshall was saying about the effectiveness of incarceration, I was fortunate to listen to a presentation by Paul Gendreau, a Ph.D. who is with the justice institute of New Brunswick. What he said is that in the 1950s and 1960s, when Canadian prisoners spent more time in prison, the recidivism rate was actually 2% higher. In a comparison between a brief period of incarceration and no incarceration at all, he found a 0% difference in recidivism. In other words, two people with the same offence are equally likely to reoffend where one goes to jail and one doesn't.
One study found that if you incarcerate low-risk offenders with high-risk offenders it produces a 1% increase in recidivism for the high-risk offenders and a 6% increase for the low-risk. That's the problem you get when you have overcrowding in prisons.
In the mid-1970s it was found that intensive supervision with little or no treatment again resulted in a 1% increase. Fines alone, with no incarceration, produced a 3% decrease. Boot camps produced a 1% increase; drug testing, a 1% decrease; electric monitoring, a 3% increase; and counselling of any type, an 11% decrease.
Similar effects were found by Don Andrews, who reviewed existing studies for common factors about what works and what doesn't. He looked at over 30 studies and found that punishment alone results in a 7% increase in recidivism, which increases further with the severity of the punishment. Punishment plus treatment produced a 15% reduction.
Clearly, what works does not fit with what people might think, and efforts to make communities safer need to be based on research-based knowledge. Dr. Gendreau concluded that in the Correctional Service of Canada there is sometimes an inverse relationship between what is being done and what is known to be effective.
To look at the recidivism rates for people who commit sexual offences, again, the common perception in the public is that everyone who commits a sexual offence will eventually reoffend. In fact, it's just the opposite. Canadian research has found that, overall, the rates for sexual recidivism, expressed as either new charges or convictions, were 14% over five years, 20% over 10 years, and 24% over 15 years.
It's equally important to understand that in terms of recidivism, sex offenders are not a homogenous group. Child molesters who offend against unrelated boys recidivate at 35% over 15 years. At the other end, incest offenders reoffend at 13% over 15 years. Child molesters who molest unrelated girls fall in between.
It is also important to note that those who have prior sex offences recidivate at approximately double the rate of first-time offenders. The majority of people in Canada who are charged with a sexual offence do not have a previous record.
In terms of the effectiveness of sex offender treatment, there was a problem in early studies that had to do with the need to achieve statistical significance. In simple terms, it means that if I were to flip a coin ten times and it came up heads eight times, you could get that result purely by chance. If I flipped a coin 100 times, and it came up heads 80 times, that would be statistically significant.
When I started in this field 23 years ago, the consensus I was getting from the literature and from talking to other people was that, to be effective, treatment took between two and five years in an open-ended approach, with no clear content or criteria for termination.
Studies using a sample size of 100 and a base rate of 50% untreated who reoffend and 40% reduction in recidivism produce a result that's not statistically significant. This problem was resolved through an ATSA collaborative data research project headed up by Karl Hanson, who is with corrections research at Public Safety Canada, which defined standards for treatment outcomes and did a meta-analysis of all the old studies.
The study found that on average across all studies treatment produced a reduction in sexual recidivism: from 16.8% to 12.3%. When you sifted out current treatments, those that were known to be the most effective at the time, the reduction went from 17.4% untreated to 9.9% treated. And community-based treatment programs tended to be more effective than institutionally based treatment. That has to do with the problem of providing treatment in a setting that's basically hostile to individuals, that does not encourage openness or change.
So what is now known is that whereas shorter periods of incarceration alone produces a zero per cent difference from no incarceration, and longer periods of incarceration produce an increase in recidivism, incarceration plus treatment produces significant decreases. This holds true for sex offenders, the same as it does for the general criminal population. We also know that most effective sex-offender treatments make use of what is known through research and is based in the community.
In passing any legislation, you have to be aware of unintended consequences. Increasing minimum sentences also results in a need for more jail cells and more correctional staff. This is likely to be particularly true in provincial correctional systems, where treatment resources are already limited. More money then goes into what is known about what doesn't work and less into what does.
There's also increasing difficulty among sex offenders in adjusting to release in the community the longer they've been incarcerated. One of the things I have found with the people I treat is that those who are able to obtain employment upon release into the community are primarily those whose employers held their jobs open for them. With a relatively small period of incarceration, that becomes possible. With longer periods, employers are either unwilling or unable to do so.
You also have to take a look at the increased feelings of alienation and of being singled out as less trustworthy, more likely to reoffend, and less acceptable than people who commit other forms of crime. That, in turn, can lead to social and emotional isolation, both of which are factors that seem to increase the risk for reoffending.
One of the advantages of P.E.I. being a small province is that sometimes we're able to approach things more comprehensively. People who are incarcerated here can start their treatment while they're incarcerated. They're escorted by correctional officers into the community to where my office is and attend group treatment sessions there. We try to time it so that at least one third of their treatment takes place after their release into the community. What this means is that they begin to learn how to change their behaviour while in a secure setting and start to apply it once they're out, with the support of their treatment groups.
My concern is that increases in minimum sentences will limit correction dollars that are available for the extra shifts that are needed for correctional officers to escort the sex offender into the treatment sessions. I can't emphasize enough the value of their being able to get out of that correctional setting and into a setting where they feel safe, where they feel they can be open, where they can express themselves and begin to look at their problems.
That's all I have to say for now.
I'm speaking today on behalf of the Canadian Criminal Justice Association. I am chair of the policy review committee. I am also a professor in the criminology program here at Wilfrid Laurier University. I've spent the past nine years working and researching within circles of support and accountability, which is a community-based reintegration program for released sex offenders.
My perspective today is representative of the viewpoint of the Canadian Criminal Justice Association and it's also based on my own experience in my work and my research.
We'd like to emphasize that the CCJA sincerely supports the efforts being made to protect children from sexual abuse. Our comments today are not reflective of our disagreement with the spirit of this legislation, but we do have some very real concerns with some particular measures that it contains.
We believe very strongly that any changes made to the legislation need to be based on research, research that demonstrates that these changes are going to work, that they are actually going to give the effect of preventing child sexual abuse or reduce the recidivism--or for any other crime, for that matter.
We have some concerns with Bill . Our concerns rest on three basic fundamental problems with this legislation.
Number one, as has already been alluded to, there is a lack of evidence in research to support the idea that mandatory minimum sentences will deter crime; that is, the preponderance of research has found that regardless of the length, the severity of the sentence, we are not seeing real deterrence from these types of measures.
In fact, in 2002, Gabor and Crutcher did an analysis of existing research and literature for the Department of Justice, which found only very marginal deterrent effects for drunk driving and regulatory firearm offences. This...[Technical Difficulty--Editor]...deterrent effects for more serious or violent crimes. Furthermore, the longer the sentence, as has been suggested, as has been stated, the more potential there is in fact for a reversal of the reduced recidivism that we want to see.
What we do know is that mandatory minimum sentences cost taxpayers money. They result in more people being sent to prison for longer periods of time. In some cases, they result in sentences that are fundamentally unjust, that is, they do not address the specifics of the case, and as Dr. Marshall eloquently pointed out, the very wide variety of offences that might fall under the category of incest, for example.
We are very concerned. Historically, we have taken a stance as a committee, as an association, against the use of mandatory minimum sentences because we simply don't see any reason for this expenditure of public funds with very little result.
The second major problem we have with Bill is the potential within the changes to the judicial order which restrict access to technologies such as the Internet and computers needed for ex-prisoners on parole. We feel there is a potential there for this change to have a detrimental effect on an ex-offender's ability to reintegrate, to obtain employment, or to pursue education.
We find that the change in the wording to say that they can't be using computers or technology for any reason at all except in an express judicial setting is simply just beyond the pale in terms of the impact it could have on these individuals' ability to be able to function in a society that depends so highly on technologies. As you can see, here I am talking to you from Brantford.
Anecdotally, I've worked with an ex-offender who did federal time. When he got out he went back to school, pursued an undergraduate degree, and is now pursuing a master's degree, none of which would have been possible if he had not been able to use a computer or the Internet.
I would very strongly urge the committee to consider maintaining the original wording of that clause, which states that computers and technology are not to be used for the purposes of communicating with individuals under the age of 16. It seems to me this is a fair restriction of that liberty.
The third problem we have with Bill is the new offence that is being created of making available sexually explicit material to a minor for the purposes of facilitating the commission of a sexual offence. We find that this particular offence category is very broad and in fact is probably too broad to be appropriately enforced. To ensure that miscarriages of justice do not occur, in the written brief that was submitted to the committee, we point to the fact that in watching the news we see numerous incidents of parents who are concerned about sexually explicit content provided to their children in sex education classes. I ask you, is there a potential here for a parent to perhaps suggest that a teacher is luring students...? It has to be up to the courts to sort out what the intent of that teacher was, but by that point an individual's life and career might have been utterly destroyed.
It is unclear why this providing of explicit material wouldn't fall under existing child luring legislation. It's also unclear how this legislation is going to protect children. Because research tells us that the majority of adolescents have already encountered pornographic or sexually explicit material on the Internet, either on purpose or by accident. I don't think that this provision is going to protect children in the way that it is suggested that it will.
In addition to these individual problems I've mentioned, the CCJA is also concerned with the cumulative impact of passing ineffective criminal justice legislation. Every time we pass a new law that does not deter, that does not reduce recidivism, money and effort are put into enforcing ineffective legislation, thereby taking money away from programs that might actually be effective. So you're claiming to be protecting Canadians from victimization and abuse, but in some cases the legislation that has been passed may in fact have the opposite effect by undermining various things might work.
As has been suggested already today, we need to put more money and more resources into appropriate programming and treatment for individuals who have been convicted of sexual offences. Over and over again, this has been demonstrated to work. As has been stated, at one point for Canadian programs, as Dr. Marshall suggested, Canada was on the world scene, and other countries were emulating our approach. Now I'm afraid that the resources have been so stripped that this is no longer the case.
We need to have money for counselling programs to treat the victims of sexual abuse. The money spent on prisons and incarceration, which are ineffective, could be much better placed in helping victims. We need consistent support for programs and initiatives that have been shown to be effective at reducing recidivism rates of sexual offenders. The circles of support and accountability are just one example of those types of programs that, like psychiatric and psychological treatment programs, have also been demonstrated to be effective.
We need education for parents and teachers about the warning signs of sexual abuse and sexual deviance. We need resources to support concerned adults in obtaining help for children who might be at risk of being abused or becoming abusers. We need resources and support for children's aid societies across Canada that deal with abused children on a regular basis and are often powerless to do anything.
These are the sorts of things that will actually prevent victimization. It could make a much larger difference in the long run.
It is the opinion of our association that the proposed changes contained in Bill will not have the desired stated effect of reducing victimization and deterring sexual predators.
Thank you for your time.
Thank you, ladies and gentlemen, for your views today. I'm sorry that I didn't have an opportunity to ask a question of Dr. Marshall, but perhaps we can follow up later.
I listened very intently to what each of you had to say. I appreciate your views in terms of rehabilitation and treatment of offenders, but what I didn't hear much or anything about, really, was the impact on victims of child sexual abuse.
As you may know, in recent days we have heard from some groups representing victims, including some who were victims themselves of child sexual abuse. They've told us some very difficult stories about the length of time it takes a child sex abuse victim to recover from the psychological trauma, if I could put it that way, they suffer when they're abused.
We heard one story about a young woman who was sexually abused for quite some length of time, I believe by a neighbour, and finally, after many years of keeping it locked up inside her, she came forward. She went through the difficult process of a prosecution and a trial. The offender was convicted and was immediately sent home to serve his conditional sentence in the house across the street from where she lived. She felt so aggrieved by this and so worthless due to the way the system responded to her that she attempted to commit suicide.
First of all, I'd like to ask each of you if you have any expertise in treating the victims of child sexual abuse. If you do have that kind of expertise, perhaps you could tell us about the long-term impact of these types of offences against child sex victims. What do you think the impact for them is if they see the offender not receiving any jail time whatsoever for the offence that's been committed against them?
Maybe Dr. Hannem could start.
To respond to that question, prior to specializing and working with sex offenders, I did work in a general mental health setting and did some treatment with victims, particularly with adult survivors, adults who had been sexually abused as children. As well, in my practice with sex offenders, I work very closely with victim services, which is a support service for victims, including victims of sexual abuse.
What I can say is that again you can't look at it as a one-size-fits-all kind of answer. Victims vary greatly in terms of the degree, severity, length, and type of damaging effects they experience. There are a lot of factors that can go into it, one of which is the offence itself and whether or not they reported it right away, whether they got help with it, and that sort of thing.
Certainly, I'm not in disagreement with sex offenders getting some jail time. I think that often for child victims in particular what that does is remove their sense of guilt. Often, children feel that somehow they were to blame for what was happening.
Another thing incorporated in the program I run is that wherever possible, once the offender has reached a sufficient stage of progress in treatment, we offer an acknowledgement of the offence to the victim. Sometimes it can take the form of a letter. It could take the form of a face-to-face meeting, if the victim chooses, or even a videotape in which the offender acknowledges that what he or she did was wrong, that the victim did not deserve this and did not in any way encourage it, and in which the offender gives very specific recognition to the ways this has done them harm. Of all of the things I have seen with victims, that seems to produce the biggest benefit.