Human Resources Committee on Feb. 6th, 2012

[The Chair, Conservative, Ed Komarnicki]

We'll call the meeting to order.

I'd like to thank our two witnesses for attending in order to represent the Canadian Association of Elizabeth Fry Societies and the John Howard Society of Canada.

As you are aware, you will be presenting to us with respect to the private member's bill, and then we will have some questions flowing from that. When we're through with the questions and the time is up, we'll then suspend for the next panel.

We'll start now with Catherine.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much. It's a great pleasure to be here this afternoon.

The John Howard Society of Canada is celebrating its 50th year as a community-based charity in Canada with a mission to support effective, just, and humane responses to the causes and consequences of crime. The society has more than 60 front-line offices across the country, with many programs and services to support the safe reintegration of offenders into their communities and to prevent crime. Our work helps make communities safe, and we're happy about that. We recognize that employment is one of the key factors in supporting the successful reintegration of offenders back into the community, and that's why I'm pleased to speak to you today about Bill C-316.

That bill proposes, as I understand it, amendments to the Employment Insurance Act to remove provisions allowing for qualifying periods and benefit periods to be extended as a result of time spent by the claimant in a jail, penitentiary, or similar institution. These changes would prevent people from obtaining the benefits of an insurance scheme to which they and their employers had contributed when the legislation allowed these extensions. The proposed amendments raise concerns about fairness and effectiveness, and there are five things to which I really want to draw your attention.

First of all, as an insurance scheme, contributors should receive the benefits that were consistent with the terms in place at the time of the contribution. Both employers and employees paid into this insurance scheme while the extensions were part of the legislative framework, so they should be allowed to have the benefits that were in place when they made their contributions. This is not a government program; this is an insurance program. These people are beneficiaries, having paid into it.

Secondly, the concept of “confined in a jail, penitentiary or other similar institution” is an overly broad concept. More than half of the people behind bars in Canada have not been convicted, nor sentenced for an offence, and thus are presumed innocent in law. This would mean that more than half of the people who lose their current statutory right to an extension are not at fault. Further, the term “other similar institution” is quite broad and could include internment camps, preventive detention, and other detentions that are not necessarily related to wrongdoing on the part of the contributor. I understand that the author of the bill is open to some amendments that would allow the extension to apply only for those held in pre-trial facilities.

The third point is connected with the legitimacy of civil penalties on top of criminal convictions. If those friendly amendments were made, it would make it very clear that the disentitlement was not directed at those who are simply incapable of working due to their involvement with the justice system, but targeted at those who were convicted of a crime. It would be a civil disability that would be added to what the criminal courts have determined is a fair and proportionate penalty for that crime. This further penalization is inconsistent with the evolution of the common law and the understanding of those in custody as being citizen-prisoners. Those under sentence retain all legal rights and responsibilities, except for the rights and responsibilities that are implicated in the carrying out of the sentence imposed by the criminal courts. The concept of outlawry, or a person being outside the scope and protections of the law because of a criminal conviction, is an antiquated notion that is subtly being reintroduced. The punishment for a criminal offence should be the sentence imposed by the criminal courts as the full and fair measure of accountability for the crime committed.

The fourth issue I'd like to raise is the impact on the criminal justice system. If Bill C-316 were amended to limit the disentitlement of employment insurance extensions to post-sentence incarceration, the implications for the criminal justice system would be quite serious. A person detained in custody prior to conviction and sentencing generally gets credit for the time served prior to the conviction and sentencing. If the pre-trial period in detention, when the accused is presumed innocent, does not limit the employment insurance extension periods but the post-conviction period does, then delays in the trial processing could result.

Bill C-316, as amended, might motivate the accused to delay the trial to accumulate pre-trial custody, which would offset the sentence imposed. While these delays would protect the claimant's employment insurance entitlements, they would exacerbate a pre-trial detention crisis in our country.

The last point I would like to make has to do with a loss of important reintegration support. One of the groups in society that have most difficulty finding employment is those who have been criminalized. Having access to employment insurance assists a highly disadvantaged group in finding employment. This proposed amendment will hinder the policy objective of promoting community safety by jeopardizing employment prospects and compromising efforts to reduce recidivism.

In conclusion, Bill C-316 would disentitle people to the benefits of an insurance scheme to which they and their employers had contributed. It would create unfairness for claimants and particularly for those who are innocent and detained. For those convicted and sentenced in the criminal court, it would amount to an additional ex post facto penalty to a criminal sentence that is dubious in law and could lead to a disproportionate penalty. Efforts to narrow the effect of this bill on post-sentence restrictions on employment insurance extension periods would lead to delays in a criminal justice system that is already in crisis. It would also undermine public safety by jeopardizing employment prospects and denying insurance payments to a vulnerable group as they seek to successfully reintegrate into the community. For these reasons, the John Howard Society of Canada urges you to oppose Bill C-316.

Thank you very much.

[The Chair, Conservative, Ed Komarnicki]

Thanks for that presentation.

We'll now turn to the next presenter.

Go ahead.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you.

My name is Kim Pate. I'm with the Canadian Association of Elizabeth Fry Societies, and I thank you for inviting us on behalf of the membership board and the clientele we work with. I appreciate the opportunity to speak to Bill C-316, an act to amend the Employment Insurance Act.

As you may or may not be aware, our organization has a membership of 26 local community-based organizations, all of which are governed by boards of directors who are volunteers. Many of our local societies also provide services on the basis of voluntary service, as well as contracts with corrections and other services. What you may not be aware of is that our organization works not just with those who are in the criminal justice system, having been criminalized and imprisoned, but also works with the most marginalized and victimized--women and girls. Those of you who are from the western part of the nation will know that in some areas, Elizabeth Fry Societies provide the only victim services to some communities. It is in this context that we add our submissions.

The main concern we have—and we share the concerns of the John Howard Society of Canada, so I won't repeat all of those—is that the Employment Insurance Act provides an insurance scheme for those who have paid into it and invested in it. It's a federally administered insurance scheme, and only those who have paid into it are eligible at all to even apply for it.

The fact that individuals who are disadvantaged or marginalized or are incarcerated for all kinds of reasons, some of which are more or less within their control.... Certainly as we see some of the changes that are happening now, we're seeing it's becoming more difficult for people to survive in the community, particularly many of the women we work with. Not surprisingly, some of them end up criminalized and sometimes for fairly minor things. Those who have been hardworking, productive members of our working communities before going to prison should not be denied the benefit of the insurance that has been paid into on their behalf by them and their employers when they exit prison, if they can be found eligible.

Delaying eligibility only does that: delay an entitlement that they already have.

As Ms. Latimer has pointed out, to add a civil penalty to a criminal penalty is to actually violate the Canadian Charter of Rights and Freedoms and to go completely against all of the principles upon which our criminal justice system is based—that the penalty is the punishment and that we should not be racking up more in addition.

The friendly amendment certainly improves on some of that. The fact that we know that anywhere from 70% to 90% of the women in provincial and territorial custody, which is where this bill will most impact individuals, are awaiting trial and may not ever be convicted makes this an even more egregious penalty and civil penalty on top of the non-criminal penalty that may result. We have concerns about that.

We also have concerns that clawing back these sorts of benefits, which are entitlements that people have paid into as an insurance scheme, actually participates in a further off-loading to provinces and territories of the cost of individuals, who might otherwise be eligible for employment insurance while they are looking for employment after they exit prison but then are unable to obtain that employment and will need to possibly avail themselves of the social assistance schemes that are provincially and territorially run. So that will add to the cost to the provinces and territories.

In summary, we're extremely concerned that this bill not pass. We think that there are already checks and balances in place to ensure that there is accountability, and that it seems to be merely an attempt to further punish individuals who, for all kinds of reasons, may find themselves in a situation of being criminalized and imprisoned. We urge the committee to recommend that this bill not be passed.

Thank you.

[The Chair, Conservative, Ed Komarnicki]

Thank you very much. I gather that you've concluded your presentation.

I had a couple of questions for Ms. Latimer. I'm not sure if you had the opportunity to have a look at the proposed friendly amendment, but it talks about taking the benefit away from those who were confined in a jail, penitentiary, or other similar institution and were not found guilty. In other words, it only proposes to give the extension to those who were confined—if we may say that—and not found guilty.

Given that—I'm not sure if you had a look at it—do you still believe that there would be some people attempting to prolong the pre-trial stay, in light of the fact that if they were convicted, they would not have the benefit of that extension?

[Catherine Latimer]

The pre-trial detention issue is a very serious one. I think many of us are watching to see what the implications of that are. Many people are held in detention longer, perhaps, than the sentence they would have received would have imposed upon them, and then the charges against them are dismissed without a conviction being registered. The fact that there's been no conviction for the sentence doesn't necessarily mean what you're suggesting it means.

The other point I would make is that you're into a very challenging calculation issue as to what the implications would be. Let's just make the assumption.... I guess it would be a day-for-day calculation if the person is subsequently acquitted, but what if the charges are simply stayed or withdrawn?

[The Chair, Conservative, Ed Komarnicki]

Then they wouldn't be convicted, so—

[Catherine Latimer]

What was the wording of the amendment? Was it “found not guilty” or “convicted”?

[The Chair, Conservative, Ed Komarnicki]

Those that would get the extension would be those that were confined in a jail, penitentiary, or similar institution, and were not found guilty of the offence. Those would get an extension.

[Catherine Latimer]

My issue would still be that it would address some of my concerns about pre-trial detention but not necessarily some of my concerns about other people who are detained. For example, let's say that they're detained under preventive detention under security watch. It is not supposed to be understood as a penalty, but they would certainly be detained and then they wouldn't.... It's hard to know how the implications would apply to that.

[The Chair, Conservative, Ed Komarnicki]

The other point, and then I'll turn it over.... I don't usually intervene, but it's a question of interest.

In the first case, with the act as it were, it provided entitlement, both to those who were found not guilty and those who were found guilty. But because now you're taking away that benefit, so to speak, it is important to exclude those who were found not guilty.

[Catherine Latimer]

My second level of concern is that it's a civil penalty on top of a criminal conviction. You're losing something. The state is taking away a benefit that you previously had. Where other people who might be equally at fault may be in the first category--maybe it was a self-induced injury, or something like that where there was an element of fault--they would be entitled to the deferment, and the other people would not.

What you're doing is you're looking behind the reason for the incapacity and you're heaping on another penalty on top of the conviction, which amounts to a deprivation of liberties in association with a conviction. The entire deprivation of liberties should be the penalty that is imposed by the sentencing judge in connection with the offence that's committed. Otherwise, you get a very uneven and unfair problem.

[The Chair, Conservative, Ed Komarnicki]

Fair enough. I would just maybe add that it is important to remove those who are not found guilty from the private member's bill.

[Catherine Latimer]

You would have an extremely serious charter issue if you did not—if the presumption of innocence was, yes, violated in that way.

[The Chair, Conservative, Ed Komarnicki]

All right. Having said all of that, we'll go over to Ms. Hughes. I didn't mean to get into that much detail, but it is a matter of interest.

Go ahead.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Thank you.

Happy 50th anniversary to the John Howard Society. It's great to have you here. I think it's extremely important that we hear from those who are so close to the people who are either found guilty or not guilty with respect to this bill, because of the impact this would have. Having worked in probation and parole for 13 years, I certainly understand the good work you do on the ground and the services you provide. I'm sure I will agree with you that most criminals can be rehabilitated. So I appreciate you being here.

You talked about fairness and effectiveness, and I think this is extremely important. The argument that had been made when previous changes had been made was exactly that: it was about fairness and effectiveness. The fact of the matter, as you mentioned, is that the government would be imposing another charge on what somebody's already had.

I'm just trying to put this together. We have a government that says they're tough on crime, and my view is that we need to rehabilitate people. Maybe you could talk about the statistics of how many people, when they come out, do go on the straight and narrow.

The impact of this bill, to me, is going to be very problematic for people who are trying to make a living and trying to go out there and find a job at the end of the day.

[Catherine Latimer]

Some of the studies I read over the summer indicated to me--because I was looking at social enterprise and ways of trying to encourage employment for people who were leaving periods of custody--that offenders or ex-offenders are 11 to 13 times less likely to reoffend if they have employment. I can try to dig those studies up for you. But having access to revenue, having some stability, having all of those important social connections and economic connections make a startling and profound difference in terms of the likelihood of successful pro-social reintegration. So it's hugely important that people get access to employment, and it's particularly difficult and becoming more difficult with changes to the pardon provisions and other kinds of disabilities that are being imposed on offenders.

Certainly it's extremely expensive to the state in terms of both economic costs and human resources costs not to have this potential labour force working. Estimates are that 10% of Canadians have criminal records, and we want those people to be viable contributors to the workforce. If you break that down on gender lines--and there are a lot of unique and very special concerns about women--17% of the men in this country may well have a criminal record. You can't afford to run a decent economy if 17% of the males are facing significant handicaps in terms of employment and employment opportunities.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Again, going back to their ability to find work or their ability to even get themselves an apartment after they've been in for a long period of time--because a lot of them do lose their accommodation in the process--it bothers me a lot to see a government that, over and over again.... We see that even a pardon will be very hard for somebody to get.

Do you think this would be something that would prevent someone from being able to move forward, so that they would continue down the road of crime, given the fact that they would have that financial instability? Even the way the pardons are right now, it's going to be so hard to get a pardon that it's going to be a criminal is a criminal is a criminal. I just wonder if you would respond to that.

[Phil McColeman, Conservative, Brant, ON]

Mr. Chair, on a point of order, I don't know whether we should be talking to these witnesses about pardons and what their opinions are about pardons, and mixing that in with the discussion today.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

I didn't ask them about their opinions on pardons.

[Phil McColeman, Conservative, Brant, ON]

That's exactly what you're asking them to do. You mixed your question with the fact that this government's heading down the wrong way.

Mr. Chair, please, can we stay on the discussion? These witnesses are not here to talk about their views on pardons and how those affect criminals as they leave jails.

[The Chair, Conservative, Ed Komarnicki]

It's a fair point.

Your comments should be directed to the bill and the issues that flow from the bill. If you can establish that pardons somehow relate to that, fair enough, but if you can't, you should probably restrict your comments to the bill itself.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

I'll just make a quick comment on that. I'm indicating that there are a variety of things being put in place that actually lead to the fact of the matter, which is whether or not we can rehabilitate a criminal or how this will actually keep the criminal from continuing down that path. So this is exactly what I'm asking.

[The Chair, Conservative, Ed Komarnicki]

Just a moment.

Go ahead.

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

On a point of order, I think we should be very clear that Bill C-316 focuses on the Employment Insurance Act and modifications to that act with respect to who is eligible for it or not. That is how the questions should be directed.

My general impression is that questions are being formulated and the general discussion is about a much broader area than that covered by this bill, which specifically speaks to changes to the Employment Insurance Act.