Justice Committee on Nov. 4th, 2010

[The Chair, Conservative, Ed Fast]

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.

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

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.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll open the floor to questions.

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

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

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.

[Kim Pate]

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.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

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?

[Kim Pate]

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.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

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?

[Kim Pate]

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.

[The Chair, Conservative, Ed Fast]

Thank you.

[Kim Pate]

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

[The Chair, Conservative, Ed Fast]

We'll go to Monsieur Lemay for seven minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

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?

[Kim Pate]

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.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

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?

[Kim Pate]

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.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

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?

[Kim Pate]

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.

[The Chair, Conservative, Ed Fast]

Thank you.

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

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

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?

[Kim Pate]

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.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

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

[Kim Pate]

Yes, they do.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

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?

[Kim Pate]

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.