JUST Committee Meeting

     I call the meeting to order.

     This is meeting number 34 of the Standing Committee on Justice and Human Rights. For the record, today is Thursday, November 4, 2010. Today we're continuing our review of Bill S-6, an act to amend the Criminal Code and another act. It's essentially the elimination of the faint hope clause.

    At the end of this meeting, we had put in the schedule further consideration of the organized crime study report. By consensus, from the information I have received from you as members, we're going to pass on that. We'll hear our one witness on Bill S-6 and then we'll adjourn for the day.

    We have with us a witness, Ms. Kim Pate, representing the Canadian Association of Elizabeth Fry Societies. Ms. Pate, you know the drill. You have ten minutes, and then we'll open the floor to questions.

    Please proceed.

    Given that I found out last night I was coming, you'll appreciate.... I apologize, I do not have a written statement.

     Our position, though, is certainly one of not wanting to see further restrictions on the use of section 745 of the Criminal Code, judicial review procedures. As I had indicated when I appeared at the Senate committee, in my capacity as the national director of the Elizabeth Fry Society I have worked with most of the women eligible to apply for a section 745 review. I am very familiar with most of their cases and have worked on them. So I'm happy to answer questions about some of that experience.

    I understand there's also interest in knowing some of the issues with respect to overcrowding and the potential for this to impact overcrowding. I have requested and received some information from Correctional Service of Canada. I can also speak to the impact in terms of the women who have already proceeded through the judicial review procedure, the success of those women reintegrating into the community, and the challenges they have faced in being able to pursue their lives after being incarcerated.

    Thank you.

    Thank you.

    We'll open the floor to questions.

    Ms. Jennings, do you want to ask questions or pass to Mr. Lee?

     Because I know you have a great deal of experience, I would appreciate hearing from you about the particular impacts that may or may not affect women, as opposed to the general population, and then about aboriginal women in particular.

    Certainly, in terms of the women I know, the provisions as they currently exist.... Some women are already not eligible for reviews because they were involved with groups of people in situations that resulted in more than one murder conviction. In a context where they may not have been the primary actor, they nevertheless were and are being held accountable.

    It would be my respectful submission that most people, including those who work with them in corrections, would be of the view that their risk to the community is not great. However, because they're in the situation of having been convicted of two.... In one of the cases, she pleaded guilty to first-degree murder in both cases to avoid having her children testify in that context. She is now facing a situation of no eligibility for judicial review. And I think that's a significant challenge.

    There aren't great numbers, because the numbers of women are smaller than the numbers of men. But certainly, in terms of indigenous women, there are women who are coming up who.... It remains to be seen what challenge it will be. But certainly a number of them are very young. And the ability to have access to a review and to be able to go out at a time when they have.... They were at a very impressionable age when they started in the system. Even though some of them have had only five, six, or seven years in, many are already describing that really what they need to be doing is working to get out and be in the community. The prospect of them spending until they're almost my age in prison, with no appreciable opportunity for post-secondary education, for an ability to move out and contribute in the community, is at great human, social, and fiscal cost, I would say, to taxpayers.

     Thank you.

    Another question that I have for you is one that I put to the minister himself.

    I know that at the Senate, when the Senate conducted their hearings and heard witnesses on this particular bill, a number of the witnesses--the John Howard Society, and there may have been the Elizabeth Fry Society as well--talked about how the process for an inmate to actually compile all of the documentation required to accompany an application for a judicial review to determine whether it should or should not be put before a jury comprised of members of the community where the murder took place can be very laborious, time-consuming, and lengthy. There was a suggestion in regard to the 90-day delay that there be some discretion built in so that a judge, on request, for extenuating and exceptional circumstances, should the legislation go through, would be allowed to extend the 90 days to a maximum of say a further 90 days, which would mean a maximum of six months.

    It took a while to get a clear answer from the minister, but it became very clear finally that no, the minister would not even support such an amendment that would allow a judge's discretion in exceptional circumstances and that the exceptional circumstances could actually be defined in the amendment to the Criminal Code.

    Have you or anyone in your organization ever been involved in assisting an inmate to prepare an application under the faint hope clause?

    Yes. It's an activity I am directly involved with, although there have been one or two exceptions because of my language difficulties. So I was not involved in the cases of two women in Quebec. For all of the rest of the women--there were ten women who have proceeded--I've been involved in all their cases, to lesser or greater degrees, depending on, quite frankly, their own abilities to organize the materials and the level at which their lawyers are able and have time to devote extra time, because they're usually not fully paid for the entire project. So I'm usually involved in it.

    In terms of 90 days, there was a time.... That sounds like I'm telling a fairy tale now. Certainly in the early days of these reviews we had exceptional cooperation from the Correctional Service of Canada, and certainly there was a report done by one of the then regional deputy commissioners talking about the need for Corrections to be very much involved in these processes. That report has long since been shelved, and we don't see that same level of involvement, by and large, aside from the assessment that is done. It used to be that we would, for instance, be able to gain access to a separate area to sometimes spend a week or more going through the documentation. In one case, I actually stayed overnight in a private family-visiting unit for several days to go through that documentation with the lawyer and we were able to develop that process.

    I would be concerned right now, quite frankly, particularly given the challenges we're having getting access to documents, and the challenges that prisoners are having getting access to their own documents, sometimes even in getting access to a writing instrument to ask for their own documents, that the 90 days might be prohibitive. It's rare that I obtain documents within 90 days, even though the legislative requirement is 30 days. I usually will agree to an extension once, twice, and usually it will be only after the third extension I put in a complaint to the Privacy Commissioner.

    So given that, given your personal experience with assisting inmates to prepare their applications and supporting documents for a faint hope clause application, what would you say to a comment that was made that the inmate has all of their life to prepare the file for an application--they have years, 15 to be exact, to prepare all of that documentation, so 90 days is more than sufficient? What would be your response to a comment similar to that?

     I can't speak for what's happening in the penitentiaries where men are serving time, but certainly in the women's prisons it is the rare woman who is entitled to have all of her documentation in her cell or in her room, depending on how it's described. They are supposed to have lock boxes in which to keep all of their documentation. Sometimes, if they have been in for many years, they have more than would fit in that lock box and they're supposed to have access to a second one, and it used to be that they would have access. These are literally metal boxes with locks on them so they can keep all their documents.

    The argument offered to us for not providing many of the women with their documentation is a fear on the part of Corrections Canada that confidentiality will be breached. We've argued that if they have the lock box, that protects them. The other fear is that information might be misused. If it's breached people might be bullied, or that sort of thing. Again, we've argued that if they have a locked area, it shouldn't be an issue.

    Right now, I don't know of any woman who has all of her documentation to which she is entitled by law. In fact, it is one of the challenges we're facing. I'm going to a hearing for a lifer next week, and part of the reason I'm going is that I actually have a fair bit of documentation and she has had great difficulty getting documents, even though she has a parole board hearing on Tuesday.

    Oftentimes women will be shown documentation and they'll sign an acknowledgment that the documentation's been reviewed. Sometimes that's seen as indicating they've been given a copy. Sometimes they have and sometimes they lose it, but oftentimes they haven't been provided a copy. They've simply acknowledged that they've read it, or the contents have been communicated to them.

    Thank you.

    Certainly if they're in segregation or maximum security, they don't have it.

    We'll go to Monsieur Lemay for seven minutes.

    We have met many times before in the committee on aboriginal affairs, with respect to aboriginal women's issues. I believe your centre does a lot of work with aboriginal women, especially those in prison. You said that you are working on a number of cases right now. This is my question: Does the current system, in other words, the faint-hope system, work well? If you need any information on it at all, I can give it to you. I am talking about the system of preparing and filing an application, appearing before a superior court judge, empanelling a jury and so forth. Does that system allow criminals to make those applications, while protecting victims' families? Sadly, when it comes to murder, there is always someone who suffers very serious consequences.

    Are there things, in your view, that do not work well and that we could improve, rather than turn everything upside down, as we are doing now?

    I apologize, but I will have to answer in English.

     Currently, I would say, the system could be improved, certainly in terms of greater access for those who are inside. Part of the reason I'm involved in all of the cases involving women is that when we first started tracking what was happening with the reviews, we realized that few people were applying: men were applying. Sometimes it was because they would never receive it, and that's legitimate. Sometimes it was because they didn't understand the process or didn't have assistance.

    So we wanted to see what was happening with women, and it became clear that many of them had no idea how to proceed. They didn't understand the proceedings. We now become involved in all of those cases.

    I would say, about the protections, that certainly the protection for society is there. The gatekeeper of going through the superior court, the chief justice of the jurisdiction, means that if there is no chance of a person being reviewed, they likely will be told at that stage. Then they go before a jury from the community where they were convicted. In most of the cases that I'm familiar with, the victims have not only provided impact statements and other statements but also testified. It certainly means that 15, 16, 17 years, or however long, after the fact they're able talk about the ongoing impact or the concern if there are ongoing concerns.

    Certainly of the ten women who were reviewed, two were not provided with a reduction in parole ineligibility, because they were seen as an ongoing risk. The numbers for women show that 80% who were eligible applied for and received some reduction. But that's eight women, basically.

    The other thing is that, of those, only one has ended up back in custody at all, and she was the woman who had an intellectual disability. She was convicted in a context where she was not the person who killed. She had indicated that she wanted someone to help her stop the abuse that was happening. It's unclear whether she fully understood—obviously she understood enough that she was convicted, and it was a long time ago--and she was duped into being involved in accepting an envelope. Once the specifics of what had happened became clear, everything was dropped and she was released.

    Other than her brief suspension, no other woman has ended up back in custody at all.

    I am extremely concerned because here we have the government telling us that it has introduced a new bill, the one currently before us, to reduce victimization, in other words, the fact that victims—so, obviously, the families of deceased individuals—must appear before the courts and relive the murder.

    I do not know what your thoughts on that are. In addition to helping women with their applications, do you also work closely with victims' families?

    Sometimes, yes, because sometimes the victims were their husbands. And I know their children, and their children are the victims as well. So it depends on the individual circumstance.

    If in fact it is someone who would be an ongoing risk and would victimize, the mechanisms that are in place and the steps that the judge has to go through presumably would preclude it from going past that gatepost of the chief justice. If someone is an ongoing risk or continues to be somehow causing that kind of harm, presumably that would be taken into account at that stage. For the very high-profile cases that have been trotted out at those points, I'm not aware that they've gone past that gatepost.

    We certainly have no interest in seeing anybody victimized or re-victimized. The reality is, though, that this mechanism is in place to provide an opportunity for those...to have the faint hope that was suggested at the time it was introduced. I think the faint hope is more faint since the changes in the mid-nineties and the requirement of, for instance, a unanimous jury and that sort of thing.

    You have been working with these women for many years now. If the bill passes in its current form, what is the potential for rehabilitation of some of the women you work with?

     For the women who don't already have eligibility, the staff who work with them routinely in the institutions have talked about the fact that there is virtually nothing they can do. They have done all the programs they can do, or they're on hold because they aren't allowed to take the programs because they're so far away from any parole eligibility dates. The staff describe the sense of hopelessness that prisoners feel.

    Now, for these women, this isn't resulting in their doing anything negative to anybody else—although it does mean they're sitting there languishing in a context where they perhaps could be contributing in some ways. They certainly try to contribute. Some of them have developed volunteer programs to help in the community and those sorts of thing.

    But in the men's prisons, I certainly know that when I worked with men and when the whole issue of the first revision was being discussed—and certainly when the faint hope clause was introduced, before I was doing that work—I understand that many correctional officers and many senior corrections people, as well as policy-makers, had significant concerns about the impact of that on diminishing the hope of prisoners and the opportunities for rehabilitation. So I think that would be an ongoing concern.

    And certainly for the women who have been successful in having their parole ineligibility reduced and who have gone out to the community and are making, in some cases, very incredible contributions, if only to their families or to their grandchildren, and certainly are trying to make recompense for the harm they've caused, that's a far greater benefit to society than keeping them in prison for another 10 or 15 years.

    Thank you.

    We'll go on to Mr. Comartin, for seven minutes.

    Thank you, Mr. Chair.

    Thank you, Ms. Pate, for being here.

    Do you know how many women are convicted murderers serving in custody in Canadian penitentiaries now?

    The last number I saw was between 80 and 100. If I can't find it, Corrections certainly has that number.

    Then there are significantly more in the community. I can't remember now if it's in the 300 to 400 range.

    But Corrections Canada will have a breakdown between men and women?

    Yes, they do.

    Do you know how many of the 80 to 100 would be eligible currently--that is, those who have served 15 years and would currently be eligible to apply?

    Well, not all of them would be serving for first-degree murder. It used to be broken down according to first- and second-degree murder. I'm presuming it still is, but I actually don't know that answer, I'm sorry.

    I'm sorry to interrupt you for a second, but the 80 to 100 would then be for first- and second-degree murder convictions?

    That's correct.

    I do know that right now there are two more women whose cases we're working on who are eligible, which will bring it up to twelve. Since the inception of the faint hope clause, there have been ten women who have proceeded, and there are now two more who are eligible.

    Thank you.

    Let me stay with this for a minute. Mr. Head, when he was before us the last time this bill surfaced before it was prorogued out of existence and then reincarnated once again, gave us a table. This was information that didn't come before the committee, because it was held up by the minister's office. But he give us some statistics from the last five years, from 2004 through to 2008-2009, of the number of people who were released and the years of their service.

    What I want to ask you is, will you be surprised by the following numbers? In 2004-2005, they had served 23 years before being released. In 2005-2006, they had served 21 years. In 2006-2007, they had served 24 years. In 2007-2008, they had served 23 years. And in 2008-2009, they had served 25 years.

    First, would that be consistent with the way women are treated when they make application, and do the numbers surprise you?

    The numbers don't surprise me, unfortunately. It's not as consistent for the women, because, again, we're working on the cases, so we're usually trying to ensure that the applications can go in as quickly as possible after the 15-year mark. The shortest period that someone has been able to have everything moved forward and get it before the court has been one year, and then it took another six months, or 18 months to get out. That's only one case, though, and I don't know—

    Is that second six-month period the length of time it took them to get through the parole process?

     That's right. That's one woman who was one of the ones—let's put it this way—recommended by Madam Justice Ratushny for review in the self-defence review. You can understand that the context was very different from most cases, and it was one where there was an argument that she probably should have never been convicted in the first place.

    There was tremendous support, and hers was the fastest I've ever seen any case go through. The average is usually at least three years between when they're eligible and when they get out, if we're working on it doggedly to get it through all the process. It usually takes a period of time to get it before the chief justice, and then if the chief justice approves it, once we get the decision, then to prepare to go before the jury and then the hearing, and depending on the dates and how long that takes. Once that decision comes down, the next step is to apply with the parole board. Usually Corrections wants at least six months to prepare paperwork.

    In that woman's case, we convinced—she was at the Okimaw Ohci Healing Lodge—the staff to work on her paperwork and have it ready to be filed the minute we had a decision. Had every step not been ready to go at the next moment.... That's the absolute fastest. I can't see anybody ever being able to get through the process that quickly again.

    That's because of the availability of the documentation, which has become more difficult to access?

    It's not just that, but because of her case. I would not be able to convince Correctional Services of Canada to have ready someone's paperwork to be filed for a parole application if they are successful in judicial review now. I've tried, and they have refused to do it. Until there's a decision, they won't work on the paperwork.

    That was an anomalous case where in fact everybody agreed that she likely should not have been in prison. They agreed and developed the paperwork in advance of the judicial review. That means everybody working to have things ready even before the decisions are made. This meant it took 18 months.

    I wasn't entirely clear on the answers you gave my colleague with regard to the three-month time limit that you have to make it. Overall, though, you left us with the impression that it was simply going to be impossible in the vast majority of cases to meet that three-month requirement.

    I think many people would be immediately eliminated because they couldn't meet that requirement.

    Then they have to wait another five years?

    That's right, according to legislation as it is written now.

    In terms of the capacity in our women's prisons now, do we have any excess capacity currently?

    Anticipating that might be of interest, I asked the question of Corrections Canada today. I was advised that there is currently only one cell double-bunked in the women's penitentiaries.

    I challenged this, and said that I know that in most of the housing units a room that was initially set aside to be like a living area was converted to a two-bed bedroom. They indicated that they don't count that as double-bunking.

    My count, if you counted all of those rooms, would be that most of the prisons are at overcapacity, all except for Joliette. And in Joliette there was a double-bunking in the maximum security unit.

    They are anticipating, though, that there will be double-bunking in most of the maximum security units very soon, if they aren't already. At this point, they say there is only one. They also indicated that the commissioner has reported, according to their estimations, that by 2013 they will require another 152 cell spaces for women.

    That will in fact be double-bunking. They just don't define it that way. You have to give us an answer.

    Yes. That certainly would be my assumption, based on what's happening now and the fact that they're not counting as double-bunking people being doubled up in the houses right now.

     Grand Valley alone, for instance, has 20 women. From time to time, they're putting women in groups into the private family-visiting unit, which means then you don't even have the visits that are supposed to be happening for families. They're using those as housing units and not counting that as double-bunking, even when sometimes people are sleeping on the floor or on the couch. At one point in Grand Valley, there were six women in a private family-visiting unit. They had converted it temporarily into a living unit.

    Thank you.

    We are going to go to Mr. Woodworth for seven minutes.

    Thank you very much, Mr. Chair.

    Thank you very much, Ms. Pate, for attending today. I want to say at the outset that I do admire and respect the work that the Elizabeth Fry Society does in assisting women who have been in custody to reintegrate and rehabilitate, although I wouldn't want you to think that means I agree with everything that the Elizabeth Fry Society has to say.

    I want to just start by asking whether you have attended at any parole hearings yourself in relation to women who have been convicted of murder.

     Yes, I have.

    And how many?

    Over the years I've been doing this, I would estimate probably around 20.

    And of those, how many were attended by the victims? And by the way, unlike some of my colleagues, I believe the families of murdered people are victims also, so that's who I'm talking about. How many of those 20 parole hearings for convicted murderers were attended by victims?

    I'd say probably about a quarter of them. Certainly the last one I did was, and the last number I've done have been. It would now be the unusual one that wouldn't have victims there, since the inception of the resources to fly people in.

    To assist the victims to attend.

     I must tell you I have not attended a parole hearing for anyone convicted of murder, but I imagine it must be a somewhat emotionally charged situation, in most cases at least, for victims to meet the offender under the circumstances where the offender is seeking release. Would that be an accurate supposition?

    It certainly can be, absolutely, and depending on what the relationship is, if there was a prior relationship or not between the parties.

    I'm also imagining that it must be somewhat stressful for the victims as well as for the convicted offenders. Is that a reasonable supposition?

    I would think so. Any situation that revisits the kind of harm that has involved a death would invoke that kind of stress.

    When you attend those parole hearings, you're attending as an advocate for the convicted offender. Is that correct?

    Yes, I would say I'm advocating. In some cases we're talking about situations that may involve some connection between the victim and the person who has been convicted of the murder, the woman. So it depends on the situation. Sometimes I've known all the parties before, sometimes not, and in a very few cases I'd be observing. Usually I'd be there as the assistant to the woman.

    Have you ever attended a parole hearing for a convicted murderer where you were advocating for the victim against release?

    I've never been asked by a victim to go in in that capacity, no.

    But I would expect you would have some degree of empathy for the victims who are there to advocate against release of the offender. Is that correct?

    There's a presumption that they're there to advocate against. Some are and some are not, though. Some are there in support of the growth and what the individual has done, so it depends.

    In only one of the circumstances I can think of was the victim actively asking that the person not be released.

    So let's talk about that one. My expectation is that it would be rather stressful for a victim who wanted to oppose release not to know if or when a parole application might be made. Would you agree with me that this would be somewhat stressful for the victim?

    If that were the case. They are notified when the parole applications are made.

    Correct, but under the existing system, of course, there is no timeframe within which the offender must make the application, so the victim simply has to sit out there and wait until the offender makes the application. Am I correct about that?

    Yes. I'm not aware of it being an issue, but yes, that would be the process.

    I'm suggesting to you that if I lost a loved one and was a victim of a murder and felt that the murderer ought not to be given parole and the 15-year mark rolled around, I'd probably be checking my mail every day waiting to see if there was a parole application. I'm sure you have enough experience with victims to understand how that might weigh on them. Do you think so?

     It may very well weigh on them, especially if they don't know the procedure. I think there have been increased efforts to ensure that they know those procedures and understand the process as it goes through. I have certainly dealt with some victims who have chosen not to participate in it.

    Whether or not you know the procedure, the fact is that after 15 years right now, an offender, a convicted murder, may or may not apply for early release, and the victim just has to wait and see. Is that right? That's what I understand.

    Do you mean the application to the chief justice?

    It's the application to the chief justice and whatever else ensues. There's no onus on an offender right now to make that application until the offender wishes to do so. Isn't that correct?

    Yes, although if they're wanting to.... Yes.

    So after that 15-year mark rolls around, if my wife has been murdered by somebody, I'm going to know, or I hope I might know—and I probably would, because I'm a lawyer—that the offender can apply. But I'm not going to know when or whether the offender will, and I'm just going to have to wait until it happens, isn't that right?

    Now, I see that as a problem, and I'm wondering whether you can suggest how you would help the victims deal with that problem.

    Well, I would start much earlier than that, quite frankly. Having worked with victims for a long time and, as some members know, being in the situation of my daughter being raised without a grandfather because he was murdered, I think the work that needs to be done to support victims is far earlier than that; it has to be done very early on.

    But there's no amount of work that will enable the victim to know when the offender is going to make an application, is there?

    Well, I think hypothetically that's true. Realistically, though, if you know that the person has not been working through, in any way dealing with, the issues that gave rise to their being in the system, you might have some idea that they might not apply or have some idea that if they're eligible—

    We're out of time.

    We'll go to Mr. Lee for five minutes.

    Thank you.

    You've been doing this type of work for a couple of decades?

    Yes.

    Well, congratulations.

    Do you have any comment on the fact that for someone who has already served 15 years of a life sentence in custody there will be a 90-day window as soon as this bill comes into force, and after that there has to be a five-year wait? Do you have any sense, in your experience, whether this would prejudice the ability of one or more convicted persons to actually access this procedure, if they're forced to immediately deal with a 90-day window when this comes into force?

    I am concerned, because being able to access legal aid is an increasingly challenging situation for prisoners, and if they're not eligible, they may not be able even to access a lawyer until they are eligible. I don't know many lawyers, with the greatest respect to all my colleagues—as you know, I'm a lawyer as well—who have the ability to activate an application within 90 days, without necessarily even having the documentation from Corrections Canada. I'd be extremely concerned about the number of people who may not be able to get through the door in the first place because of that 90-day window.

    When the minister was here, he indicated that if an application were commenced in the 90 days, there'd still be time to complete it.

    I'm not too sure what all that entails. Are you familiar enough with this process? I'm sure you've read the statute.

    He was assuring us that if the application got started in the 90 days, it wouldn't end after 90 days; that the process of putting the application together could continue in some fashion.

    I'd be interested in the information from Correctional Service of Canada about how many people have been able to complete it within 90 days. I know that even with the assistance of our organization and with us doing some of the legwork to get it in, some have gone well beyond the 90 days.

    Well, the way this bill is structured, it's not going to affect any offender directly for 15 years, because it's only going to affect people who are convicted after the law comes into force. But there is the other provision that retrospectively applies these 90-day windows to people currently in custody on life sentences.

    That's a long time to wait. The commercial here is that we're getting rid of the faint hope clause, but it's not being gotten rid of for 15 years in terms of practice.

    Are you aware in your experience of any public safety implication, good or bad, plus or minus, evolving out of these proposed changes—anything that would affect the safety of the public? Have you come across anything, thought of anything, or would you like to describe anything that might be a public safety issue arising out of these reforms?

     I can't think of any, no.

    Okay. The short title of the bill is “Serious Time for the Most Serious Crime Act”. Do you understand that title? You've been in the business a while. Is that clear enough, or should we try to refine that a little bit?

    With respect, the title seems to be an attempt to create an impression of doing something that it's not doing. It is increasing potentially the time that people will spend in custody, absolutely, but whether or not that's what will achieve the results of greater public safety, I would argue no, it would not.

    Should we be checking with Corrections Canada officials as to the normal procedures that would be attached to one of these applications, to see that it could fit safely and properly within this 90-day window, plus or minus, whatever the minister was referring to?

    I'm sorry. I'm smiling because I usually get calls from Corrections Canada officials asking what the procedure would be as a new case comes up. Now, that's with women, and there have been, certainly, turnovers.

    What you could ask is of those who are eligible, how many have applied within 90 days. Presumably they would know that, because they would have had to facilitate the access to information and privacy requests.

    Yes, this statute doesn't send around a notice to the men and women who are in custody that there's a 90-day thing. It doesn't provide for that, so it could slip on by, but then again....

    You might very well have a response that the law requires that they respond. We've just come through having to go back to the Federal Court on three occasions to get a certain set of files, and unfortunately I'm not confident that people would get their files within that framework, even.

    Thank you.

    We're going to Monsieur Ménard.

    Thank you for being here. Your experience can help us tremendously.

    From what I understand, once an application has been initiated, it is nearly impossible to complete it in less than 90 days.

    That would be my opinion, yes.

    From what I understand, once the application has been completed, it is at least a year, and often longer, before the case is finally heard by a jury.

    That's correct. That's usually at least a year and sometimes has been two or three years.

    Obviously, the jury's decision is immediate.

    About how long does it take, once the chief justice has determined that the application can proceed, before a jury is empanelled?

    It largely depends on the availability of the lawyers, the crown who is handling the case. Sometimes the crown who did the original prosecution wants to be seized of the case, and so it depends on their schedule, the defence counsel's schedule, and then obviously their ability to empanel a jury within a certain timeframe. So it really varies. It's hard to give a set number because it really has ranged from a year to several years.

    If the jury dismisses the application, a period of 18 months or 2 years will have already gone by. The timeframe before another application can be made begins once the first application has been dismissed. Is that correct?

    That's my understanding of the way it reads. I could be wrong.

    Are all of the victims' families who appear to testify opposed to the inmate being released on parole before 25 years is up or, in the case of second-degree murder, 10 to 25 years?

    No, not all of them are opposed. Some are, and certainly they vocalize that, but some are not. Some attend who are not opposed but don't want to be heard. That's probably more common than actually speaking out in support because there's often pressure brought by others.

    Could you give us the proportions of those who are opposed, those who are not, and those who are indifferent? If you cannot, you do not have to.

     Of the ten women I've worked with, I would say about half of the victims have chosen not to come forward. That doesn't necessarily mean they're opposed or not opposed, although in some cases I have spoken to the victims and they've indicated they were not opposed but they also did not want to go and advocate on behalf of the individual. They were quite happy with leaving it to the system to determine whether they're ready to rejoin. In one of those cases, they in fact said that they were relying on the system to make that assessment because they hope that if the person is ready to rejoin, they could do something productive with their life, rather than just languish in prison.

    In three cases there has been very clear opposition to the person receiving, and two of those three were the two where the women were refused.

    So, in the other two cases, the victims' families were not opposed.

    They basically said they weren't happy with what had happened. They obviously didn't support the fact that the person had taken a life, and they talked about the anguish it had caused but also indicated they had some hope that the person would move on and do something productive with their life.

    Do you have the sense that participating in this process is another form of victimization for the families?

    There's one family of victims who didn't say that initially, certainly didn't voice that at the judicial review, but at a recent parole hearing have. I have some opinions about why that may have happened, in terms of other interventions. Certainly nobody I know of has started, at the hearing, voicing those sorts of concerns.

    Thank you.

    We'll move to Mr. Dechert for five minutes.

    Thank you, Mr. Chair.

    Ms. Pate, thank you for being here today. With my colleagues, I'd also like to thank you for the good work you do to help people in difficult circumstances.

    When you last appeared before this committee on the previous iteration of this bill, which I believe was Bill C-36, you appeared at the same time with Ms. Sharon Rosenfeldt, who leads a group called Victims of Violence and I believe was herself a victim of violence. One of her children was one of the victims of Clifford Olson. She said a number of things that I thought were quite interesting in that testimony that day. I'd just like to read a few passages. She said that when the member of Parliament who was responsible for the faint hope clause

     She went on to say:

     She went on to say:

    As other members of the committee have pointed out, with respect to currently incarcerated murderers, they have the right currently to apply under the faint hope clause at years 15, 17, 19, 21, and 23 of their incarceration. Each and every time they do that, those victims' families feel a need to come back before the parole hearings to represent the loved one who has been taken from them. I'd just be interested to hear your comment on that and your response to Ms. Rosenfeldt's concerns.

     Oh, I have the greatest respect for Sharon. I've known Ms. Rosenfeldt for 26 to 27 years. I respect the work she does and her tremendous efforts in her organization, which provides a lot of really important support and assistance to victims.

    With respect, though, if someone applies for a judicial review and it goes before the chief justice, it wouldn't involve the person going before the parole board. There would be one application initially, and then if the person were denied, there might be another one in some subsequent period, but it wouldn't necessarily be every two years. For those who are—

    It could potentially be, though, couldn't it?

    And they do participate in the application for a reduction of the ineligibility period?

    Again, hypothetically, according to what the law says, it's possible, but I have yet to see that situation. Usually, the person wouldn't be supported and therefore they might not proceed, or they might be supported and proceed, but it usually wouldn't be every two years like that.

    I think it depends on the stage people are at. I don't know how I would react if I lost my child to murder. I do know that most of the people I know who have “experienced” murder have experiences as different as one to the other. So I would never negate the experience of Ms. Rosenfeldt, nor would I negate anybody else's experience. But there are also many people who feel very strongly that once a person has indicated that nothing will bring the loved one back—nothing will—then having someone languish in prison when they might in fact be able to contribute in a different way in the community, whether like some of the women I'm working with, who are taking care of their grandchildren or going out and participating by doing some other work, such as in a healing program for other women and children.... Those initiatives might not otherwise happen had those women not had access to them.

    She seems to indicate, at any rate, that her view is that she has to be there on behalf of her child every time that possibility arises.

    But let me ask you about another aspect.

    You're out of time, unfortunately. I'm sorry.

    Okay, the next round. Thank you.

    We're back to the Liberal side. Any questions? Mr. Lee?

    I just have one. It's very technical.

    Subclause 3(1) of the bill describes or refers to an application in writing to the judge, and the bill subsequently refers to the sequencing of the 90-day windows. The wording there is that the person may “make an application under subsection (1)”. This refers only to the application to the judge, doesn't it?

    That would be my understanding.

    And it doesn't refer to the actual parole eligibility application?

    No, because they would first have to go through the chief justice, then through the jury and have the jury agree to reduce the eligibility, then have the eligibility reduced. Then on whatever date the jury determined, the person would be eligible to apply to the parole board. But all of the paperwork and procedures would have to be followed in-between.

    I don't know the answer to this. I'm asking you as someone with experience. Are victims involved in this type of application to the judge?

    I'm not aware of any victims being involved in that stage of the application.

    So then in your experience, victims only become involved in the actual parole board eligibility application—which could follow after a judge gives the green light, if the judge gives the green light.

    They could be involved there, but they could also be involved in the judicial review process.

    They could?

    Victims do appear or have appeared, either in person or through written statements, before the jury as well.

    To make representations to the judge.

    To the jury, yes.

    Thank you.

    Mr. Dechert, did you want to continue your questioning?

    Yes, I had a follow-up question.

    There has been some talk in other sessions at this committee about the retroactivity of the bill and the impact that would have on the potential rehabilitation of people who are currently incarcerated for murder or serving life sentences for murder.

    It seems to me that the argument has been made that if you can't apply after your 15th, 17th, 19th, 21st, 23rd year you won't be a good prisoner. You won't try to rehabilitate yourself. It would seem to me that if you have two kicks at the can, or two opportunities to get out, at year 15 and year 20, or else you are going all the way to 25 before you can apply again, you might actually work a little harder at your rehabilitation and might actually be more of a model prisoner.

    What's your comment on that?

     I think some people would think that way, but I think the challenge often is, particularly for people serving life sentences, that they are not even allowed to participate in programs until their eligibility dates. Quite frankly, my fear would be that it could be another excuse not to provide those programs at earlier dates.

    We also know that the longer people spend in the most austere conditions without those sorts of programs the more entrenched they may become in their thinking. So I think it's in the interest of public safety for all prisoners, particularly those serving life sentences and those who are in for some of the more serious crimes, to be able to participate in programs at earlier dates rather than later dates and to entrench a different model.

    I think just the sheer numbers we're talking about will mean the opposite.

    Do I have more time, Mr. Chair?

    Oh yes, you've got three minutes.

    I noted it's one of the stated principles of the Elizabeth Fry Society that women who are criminalized should not be imprisoned and that all efforts should be made to prevent women from being incarcerated and to facilitate the earliest community integration of those who are sentenced to a term of imprisonment.

    In your view, should women ever be imprisoned?

    Our view is that the way prisons are currently used exacerbates the very conditions that led to most of those women being criminalized. So we would like to see alternatives to the way we currently imprison. So those who are dangerous and need to be separated need to have different types of separation.

    What would you do with a dangerous multiple murdering offender who happened to be a woman?

    As all the heads of corrections determined in the mid-nineties, 75% of those who are currently serving sentences could probably be in the community, being held accountable, and contributing in other ways. Then we would be able to focus on those who are truly causing grief in the community and what we could do differently.

    For instance, we're actively discussing having forensic, secure treatment options available for some of the women I know, which doesn't mean the people are out in the community, but it means they're not in a segregation cell with no--

    You think they should be in a psychiatric facility or something like that?

    Some maybe.

    You mentioned earlier the number of women who are currently serving life sentences. What percentage of them do you think should be released today?

    It would depend. There was a time when I knew every single woman in the federal prison system because I went every month to the Prison for Women.

    Can you make a guess at the percentage, ballpark, as to who should be let out?

    Corrections say lifers are the easiest to manage and the least likely to pose challenges in the prison setting, so it would probably be based on their recommendations. The staff who work with them on a day-to-day basis say many of them could be in the community contributing, but for their sentence they cannot be. So that's certainly what I hear consistently when I go into the prisons. I don't go as often now; I only go to each of them once or twice a year. I hear it from policy-makers as well.

    Many times staff will say that when they have lifers in their unit, people serving life sentences, in fact they're the most stable.

    Do you have similar views about men who are serving life sentences? What percentage of them do you think should be set free?

    In terms of the men who are in the system I know that many corrections people have similar views about men, not all of them but certainly some of them, depending on the context.

    Certainly the context in which many of the women I know who have been involved in the homicides are often very different from my experience when I worked with men.

    Why would you say the court would have imposed a first-degree murder sentence on them in the first place if they were victims themselves and therefore are not a threat to society and should in your view be perhaps released or dealt with in some other way?

    I teach a whole course on that at law school. We use some of the cases I've worked on and some that I haven't that are still unfolding. When you have someone with an intellectual disability who asks someone to please stop her being beaten up regularly and the guy says to give him $100 and he'll do it and he does it and she is convicted of first-degree murder, I do think that's a problem. Almost everybody who has dealt with that woman believes it's a problem. Yet she serves a sentence for first-degree murder because she said yes, she did say that. She didn't understand the implications, that it amounted to a contract killing, and that's why she is serving a sentence for first-degree murder.

     Thank you.

    Mr. Norlock.

    Thank you very much.

    I'll just carry on with the same line of questioning, only we'll move from the principles to the goals: “To increase public awareness and promotion of decarceration for women”, and the second of four goals is “To reduce the numbers of women who are criminalized and imprisoned in Canada”.

    I think you answered that fairly well. You said that you believe that—and I made a couple of quick notes—most women who are currently incarcerated in our prisons should not be there in the first place.

    In my experience of working in and around the system with young people, men and women, for the last 27 years, I would agree with that. It's part of why women are the fastest-growing prison population yet not perceived as the greatest risk to public safety. Women who are poor, who are doing things for which they can be criminalized to put food on the table, to pay the rent, are in prison. We know there are women who carry drugs across borders for all kinds of reasons who are in prison. We know that the majority of those are not perceived as an ongoing risk to public safety.

    That doesn't mean we don't think they should be held accountable. That's why we talk about community-based options, where they can be contributing to the community and being held accountable without it being the kind of drain that the Parliamentary Budget Officer has articulated is the drain when we unnecessarily incarcerate people, rather than hold them accountable and allow them to contribute to the community in different ways.

    Thank you.

    If I'm not mistaken, in most courts, before a person is sentenced, there's a pre-sentence report, and in that pre-sentence report there usually is availability of a review of the person's background, including their social status, including some of the issues they've dealt with in their life, and the courts must take that pre-sentence report into account when they sentence. So the court when it sentences them is already aware that they may have been economically disadvantaged, that they may have come from a broken family, that they may have had some substance abuse issues, that their husband may not have been the husband he should or could have been, and that they have been to some extent not able to enjoy some of the things in life that other people have, and the court takes that into consideration when it does the sentencing. Is that not correct?

    I think it's increasingly not correct. If you look at the number of women who are imprisoned, many of them have pled guilty to the charges for all kinds of reasons. Sometimes they believe that they won't have a fair process. They often take responsibility that exceeds their responsibility. There has been some work done by Dr. Patricia Montour, and others from the Native Women's Association in particular, on some of those issues. Certainly there's growing research around the tendency of women to hyper-responsibilize—take more responsibility for their actions than necessarily even the law would require.

    Also, because of cuts in resources we have places, for instance, we can't even get Gladue reports, or pre-sentence reports done, and certainly if it's not seen as an unusual case, it's increasingly more difficult to get those sorts of reports. So I think you would find that the times where we used to have more routine pre-sentence reports are not necessarily the case, and certainly not in all jurisdictions.

    By that you're saying that not only do they have insufficient pre-sentence reports, they're pleading guilty when they shouldn't plead guilty, so therefore they're not getting the appropriate or correct legal advice from their lawyers—

    If they have legal advice.

    If they have legal advice. So women who are charged with serious offences in Canada do not have access to a lawyer?

    They have access to a lawyer, but I'll give you—

    But not a good lawyer?

    Sometimes they have access to a lawyer, but not necessarily access at the times when they're making those decisions. So for instance we have, just talking about—

    But I guess I'm saying if they have access to a lawyer, then they must be getting good legal...if they're pleading guilty when you believe they shouldn't be.... And then maybe in your explanation to me as to why they're not getting the kind of legal advice they should, maybe that's the reason you are currently teaching young people who want to become lawyers. Maybe that's why you're doing that. I'm supposing that. I'm reading that into your résumé, but you can correct me if I'm wrong.

    In terms of accessing, we know that many of the women we work with will initially provide the information to the police in the first place. They'll often even self-report. They'll want to plead guilty, they may plead guilty—

     Excuse me for interrupting, Ms. Pate, but this is for the average person out there.

    By that answer, you're suggesting that before they say anything, the police have taken their statement before they have read them their rights, that they actually do have, in fact, the right of access to a lawyer as per their constitutional right?

    Yes.

    You'll find—and I'm sure you know this if you've looked at this—that a lot of times people will make statements long before they see a lawyer, or they won't even know how to get access to a lawyer. And that's increasingly the case, as it's more difficult to access legal aid. In fact, the Chief Justice of the Supreme Court of Canada has spoken about the concern of increasing numbers of unrepresented individuals. So I think it is a concern.

    Going back to your other comment, I think there are situations where we have good pre-sentence reports, very good representation. Of course, there are many lawyers trying to do the best they can with increasingly limited resources and increasingly limited options. With the cuts that have been happening to social programs, health care, education, we also see fewer options in the community. When you talked about our goals, part of our goal is to try to ensure that instead of more money and more and more resources being put into prisons, and literally sucking those resources out of the community where the individuals are going to return eventually anyway, those resources are put into alternatives in the community.

    Time's up. Thank you.

    We'll go to Mr. Rathgeber. No? All right.

    Does anyone wish to speak?

    When we started, most of you were talking about maybe 4:30. We're now at quarter to five. Do you want to continue? That's fine.

    All right, so Ms. Jennings is next, and then Mr. Comartin to finish.

    Ms. Pate, at one point Mr. Norlock asked you a question concerning whether or not women should be criminalized, and you began to give an example of a specific case, I believe, regarding a woman who might have not had access to a lawyer and why she would have self-reported, hyper-criminalized herself, or whatever. Could you continue? Because I know you weren't able to actually give that example.

    Sure. Well, we have a number of situations, particularly since the policy of mandatory charging and countercharging started to happen in violence-against-women situations, where usually it's the woman calling in to a 911 operator, for instance, reporting the situation, sometimes even reporting that she herself has hit him or thrown something at him to try to ward him off. When the police arrive and the statements are taken, she's already provided a statement by that. And when she's confronted with, “So you've already assaulted”, she often would say yes—and I can't give you exact numbers, but I can tell you that it's too often, it's a common occurrence. And then they plead guilty to them, even when sometimes the primary perpetrator doesn't plead guilty.

    So we see this accumulation of what looked like more serious offences—I'm not saying assault isn't serious, any assault is, but it looked like more serious offences—and they start racking up charges. And they become very aware, the women I've spoken to, that from their perspective there's no point in fighting it because they're told they've already given the evidence. They believe that.

    And you know, it's not that a lawyer is misstating the situation; they have provided that evidence before they even know.... In a 911 call they've already said sometimes they're doing it. Or at the first opportunity, when the police arrive and the fellow is saying “She threw the wine bottle at me”, or the plate or whatever, they say “Did you do that?” “Yes, I did”, and she takes responsibility.

    So those are some of the common assault charges—not “common assault” but common assault charges—that we see with women too.

    And then we see a number of other instances, even where they have defences, and they may be told they're going to be in custody for a period of time if they go for trial. I just dealt with a woman who just got out of prison the week before last. She had won her conviction—and obviously the sentence appeal too—for second-degree murder. Immediately, she was offered time served for a manslaughter plea. Everybody knew. The lawyer asked me to go in and speak to her, because she immediately said “I'll take the deal”, and the lawyer said “She has a strong self-defence case, we know that”. She knew that, but the option was no bail. Because she lived on a reserve, there's nothing to put up. If you're on a reserve you don't own your house. Even if you own your house, you don't, the band council owns it. So she had nothing to put up. I even offered my house up, and she refused that.

    So she pled guilty to manslaughter in a context where everybody around that case saw she had a self-defence claim. And it wasn't that it was a bad lawyer. A very good lawyer tried to convince her, asked me to go in and try to convince her, and she still pled guilty to manslaughter.

    Now she's out with her child. That was the motivation: she didn't want to risk being another two years awaiting trial. Even if she was acquitted she'd be another two years away from her child. So she took a conviction for manslaughter in a context where, yes, I do believe she shouldn't have any conviction for that case.

    Thank you very much.

    Mr. Comartin.

    On the point by Mr. Dechert, again, that same correspondence we had that didn't get before the committee last time, this portrayal of the number of times people are going to be faced with application, just so he knows.... I don't know if you have any evidence to the contrary, Ms. Pate, but of those applications that were made, and some denied, only four applied a second time, and there's never been an application for a third time. Never.

    Do you have any reason to believe those figures are wrong?

    I have no reason to believe it. It certainly hasn't applied to women at all. None of them who were denied have reapplied.

    All right.

    The second point I would make, with regard to Olson's victims, is that we have a provision in the code that doesn't allow multiple murderers to apply for early parole.

    One final point on that: I'm not clear from the evidence you've given us, but you left us with this impression, so let's just be clear, that of the cases you've dealt with, in 50% or fewer of those cases the family of the murder victim attended the hearing before the jury. Is that correct?

    That's correct.

    We heard the last time, and I believe I'm accurate—I just couldn't find it in my notes—that when it's men, somewhere between 30% and 40% of victims attend the hearings before the juries. Would that sound correct to you, as well?

    Yes, I have no reason to dispute that.

    I suspect you'll see the numbers going up now there is assistance to get there. I think that some of the reality was people couldn't afford to go before, so we've seen the increase since those provisions.

    In that regard, in terms of assisting victims--and again you were cut off in your answer--could you explain to us what we could be doing at an earlier stage to reduce the victimization, to assist the victims, the families of the victims of murder, of homicide, in this country?

    Again, this is just my opinion, and certainly lots of people have different opinions. But those who work in the area of trauma and recovery talk about the importance of early intervention, as early as possible, to provide support for individuals who are going through the grief, the loss, the anger—they understand all those emotions—to try to assist them to get to a place where they can, at the very least, move on with their lives.

    All the information I have, and certainly the information we've tried to implement in our family, is to ensure that as issues arise they're dealt with immediately and things are not held off.

    There are very few examples. There was an example, it wasn't murder, but robbery victims in the U.K. A program was implemented by a police force there—it was a judge from here who had a family member experience it and related it to me—where after an offence had occurred and the investigation was completed, a team went in to try to put back the house, fix things up, and a team went in to try to provide therapeutic support to the victims immediately thereafter so they could move on as best they could, deal with the very real emotions, but move on. That's the best advice I've received consistently about what--

    I know we're running out of time.

    Do we have any of those programs right across the country currently?

    We don't have them right across the country currently, and it's left to individuals to fund them themselves, largely.

    And that includes people who are family members of the victims of murder?

    That's correct.

    Thank you, Mr. Chair.

    Thank you.

    I want to thank Ms. Pate for attending. I want to take special note of the fact that you did come on very short notice, and I think all of us appreciated that. Thank you.

    The meeting is adjourned.