Bill C-316 (Historical)

An Act to amend the Employment Insurance Act (incarceration)

This enactment amends the provisions of the Employment Insurance Act that allow for qualifying periods and benefit periods to be extended as the result of time spent by the claimant in a jail, penitentiary or other similar institution so that they apply only if the claimant is not found guilty of the offence for which he or she was being held or any other offence arising out of the same transaction.

Motions in Amendment

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

, seconded by

, moved:

Motion No. 1

That Bill C-316 be amended by deleting Clause 1.

Motion No. 2

That Bill C-316 be amended by deleting Clause 2.

Motion No. 3

That Bill C-316 be amended by deleting Clause 3.

Motion No. 4

That Bill C-316 be amended by deleting Clause 4.

Motion No. 5

That Bill C-316 be amended by deleting Clause 5.

She said: Mr. Speaker, I want to thank my hon. friend from Haute-Gaspésie—La Mitis—Matane—Matapédia for seconding these amendments.

Bill C-316, a bill put forward by the hon. member for Cariboo—Prince George, I believe has a lot of people confused about the nature of employment insurance for people who have been incarcerated. There has been a lot of media coverage of this and I will just summarize it before I explain why I have put forward these amendments.

The media coverage and the comments from Conservative members of Parliament have tended to be of the nature that average Canadians are shocked to find that people who have been incarcerated get better employment insurance than law-abiding Canadians. If that were true, I would be shocked and I would also support any efforts to take away preferential treatment for people who have been incarcerated.

However, when we look at the act, that is not the case. I have before me the Employment Insurance Act, particularly subsections 8(2) and 8(6). What these subsections do is to establish when people are entitled to their employment benefits. They have to have, of course, an adequate number of weeks of work. They have to show that they are unemployed and, at that point, because they and their employer have paid into the system, they are entitled to collect benefits. However, they are not entitled to sit back and wait, not work for a while, and then go for their benefits later. Instead, they have to apply immediately.

Now, there is an exception to this qualifying period, and it can be extended. According to subsection 8(2) of the Employment Insurance Act:

A qualifying period mentioned in paragraph (1)(a) is extended by the aggregate of any weeks during the qualifying period for which the person proves, in such manner as the Commission may direct, that throughout the week the person was not employed in insurable employment because the person was

(a) incapable of work because of a prescribed illness, injury, quarantine or pregnancy;

(b) confined in a jail, penitentiary or other similar institution;

(c) receiving assistance under employment benefits; or

(d) receiving payments under a provincial law—

—relating to danger to an unborn child, et cetera.

Therefore, let us just be clear on what the current state of the law is.

People in jail do not get to collect employment insurance benefits. They are, by definition, not searching for work, not capable of work. They are in jail. When they leave prison, do they get better benefits than anyone else? No, they do not. This piece of legislation only says that for the people who are entitled to their employment insurance benefits because they have worked and are unemployed, if the period of time in which they could normally have applied for employment insurance was interrupted by illness, pregnancy, and a number of other conditions, including if they happened to be in jail, their qualifying period will be extended.

Most of us hope that we will never be in jail; we are all law-abiding citizens here. However, let us imagine the kinds of situations in which we would now deprive people of the employment insurance benefits to which they are entitled.

Believe me, as I stand here speaking against Bill C-316 and calling for the amendments that we have put forward, which would, to be clear, eliminate the entire bill, I am aware that my position could easily be mischaracterized as though I wanted people who have gone to jail to get preferential treatment, as though I am not siding with law-abiding Canadians against people in jail.

However, let us look at the public policy question here. If someone is incarcerated for more than two years, this act would not help that person. The employment insurance regulations or the current status quo would not extend benefits for so long that someone who has gone to jail for a serious offence could get out of jail and then apply for employment insurance. That would not work.

By definition, the extension of their qualifying period, not an extension of cheques or any additional money, would only apply if they had been incarcerated for a year or less. That applies to certain types of offences.

Under the new omnibus crime bill, that would potentially apply to someone who had grown six marijuana plants, or, to use a real-life example from this chamber, to someone who had refused a breathalyzer test, for example, and might be sent to jail for a year or less.

Let us then imagine the public policy implications of what is essentially punishing this person again. In this light, I would like to read into the record some of the testimony given in committee by a representative of the John Howard Society to explain why it opposes these measures.

Let me commend the committee for the amendment that clarified that the first version of the bill would have applied to someone who was awaiting trial and then found innocent. We now have an amendment, which certainly improves the situation, that says people will only be deprived of employment insurance opportunities, in other words their entitlements, if they have been in jail because they were found guilty of something.

Let me read into the record what Catherine Latimer, executive director of the John Howard Society, said at committee. She stated:

—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...For those convicted and sentenced in a 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.

She continued:

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.

The Elizabeth Fry Society did as well, pointing out that there were a disproportionate number of marginalized people in jail, particularly low-income women, first nations, et cetera.

I would like us to step back and reconsider. It may be fun to pretend that our current employment insurance scheme gives a disproportionate benefit to criminals. It does not. It might be fun to let people think that people in jail collect employment insurance cheques. They do not. All I am saying is that if people go to prison, they have, in the words that we are so used to hearing, paid their debt to society. Now we are going to say no, that they have not quite finished paying their debt to society and we are going to pull the legs out from under them. If they were entitled to employment insurance benefits to help them get back on their feet, to help them find work, to be meaningful members of our society, we will kick them while they are down and say that they will not get employment insurance even if they or their employers have paid into it.

There are some crimes that one might describe as victimless crimes, particularly crimes that would apply to this legislation, where people were in jail for one year or less. The trend of the current flood of legislation in the House that seeks to punish people who have made mistakes, that says they can never pay their debt to society, or get back on their feet or be given a chance is worrying. The employment insurance scheme is for people who have been incarcerated for a year or under, maybe for shoplifting, which is not commendable. Driving under the influence and refusing a breathalyzer is not commendable, but we have to give people a chance.

When they have paid their debt to society and get out of prison, they are entitled under the current statute to, at that point, put in their claims. They will not get any more money than others who find themselves unemployed. They simply have the opportunity to have their qualifying period extended. If people were entitled to employment insurance when they went to jail, they are entitled to employment insurance when they get out. They can get back on their feet, hopefully find jobs and swear off whatever it was they did wrong in their lives. Goodness knows, a lot of good people can make mistakes and end up in jail. We ought to give them a helping hand and not pass additional punitive legislation that takes away their right to employment insurance.

With that, I would ask all members of the House to give serious consideration to the amendments we have tabled today.

Speaker’s Ruling

[The Acting Speaker, Conservative, Bruce Stanton]

There are five motions in amendment standing on the notice paper for the report stage of Bill C-316.

Motions Nos. 1 to 5 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 to 5 to the House.

The House proceeded to the consideration of Bill C-316, An Act to amend the Employment Insurance Act (incarceration), as reported (with amendments) from the committee.

Human Resources, Skills and Social Development and the Status of Persons with Disabilities

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, I have the honour to present, in both official languages, the second report of the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities in relation to Bill C-316, An Act to amend the Employment Insurance Act (incarceration). The committee has studied the bill and has decided to report the bill back to the House with amendments.

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

I move that Bill C-316 be amended by adding after line 9 on page 1 the following:

5. This act comes into force on the first Sunday after the day on which it receives royal assent.

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

Sure. I move that Bill C-316 be amended by adding after line 9 on page 1 the following:

Paragraphs 10(10)(a) and 152.11(11)(a) of the Employment Insurance Act, as enacted by sections 2 and 3, respectively, do not apply to the benefit period of a claimant or a self-employed person, as the case may be, in respect of any week for which the claimant or the self-employed person was confined in a jail, penitentiary or other similar institution before the coming into force of this act.

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

I move that Bill C-316 in clause 3 be amended by replacing line 9 on page 1 with the following:

(a) confined in a jail, penitentiary or other similar institution and were not found guilty of the offence for which they were being held or any other offence arising out of the same transaction;

(Amendment agreed to)

(Clause 3 as amended agreed to)

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

Thank you very much, Mr. Chair.

The proposal is that Bill C-316 in clause 2 be amended by replacing line 7 on page 1 with the following:

(a) confined in a jail, a penitentiary or other similar institution and was not found guilty of the offence for which the claimant was being held or any other offence arising out of the same transaction;

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

No. The only comment I'll make is that our moving forward with this bill, Bill C-316, has been moved forward by the Conservative member in an effort to create fairness amongst all Canadians with respect to this portion of the Employment Insurance Act.

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

Sure, that's no problem. It is that Bill C-316, in clause 1, be amended by replacing line 5 on page 1 with the following:

Insurance Act is replaced by the following:

(b) confined in a jail, penitentiary or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;

[The Chair, Conservative, Ed Komarnicki]

We'll call the meeting to order.

Before we get to the clause-by-clause consideration, during the last meeting there was a question to HRSD. The question was, how many people have applied for the extension of the qualifying period, and how many of those were actually incarcerated? HRSDC has advised the clerk that they were not able to provide an answer to the question that was asked on Monday, February 6. I want to bring that to your attention.

I want to get into the clause-by-clause consideration of Bill C-316, pursuant to the order of the day, which reads as follows: pursuant to the order of reference of Wednesday, November 30, 2011, Bill C-316, an Act to amend the Employment Insurance Act (incarceration), was referred to us.

I will go through each of the clauses of the bill.

(On clause 1)

Clause 1 reads as follows:

Paragraph 8(2)(b) of the Employment Insurance Act is repealed.

Is there any discussion on clause 1?

I understand there may be an amendment to clause 1.

Does someone wish to move the amendment to clause 1?

Yes, Ms. Leitch.

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

Thank you very much.

Thank you for being here today to take some time to answer our questions.

Under the current legislation, convicted felons essentially have greater access to employment insurance benefits than law-abiding citizens. I think that Bill C-316 is really moving forward to make sure that criminals are not getting preferential treatment, that hard-working Canadians are being provided equal treatment, and that everyone is being treated on an equal playing field. You suggested that the government is trying to create that degree of consistency by implementing this new piece of legislation.

On that issue of fairness, maybe you can provide to us, in general, what sort of clear timeline you see. I know you say it in your notes, but I just want everyone to be very clear about employment insurance.

What is that timeline on the implementation and impact for an individual who may be affected by this legislation? How does that compare to the law-abiding Canadian who receives employment insurance when they lose their job through no fault of their own?

[Louis Beauséjour]

As I explained, Bill C-316 seeks to...

At the moment, the measures under the Employment Insurance Act provide for very limited circumstances in which the benefit and qualifying periods can be extended. The extensions are for people who cannot have access to the benefits or who cannot work and stay on the labour market.

[Louis Beauséjour, Associate Assistant Deputy Minister, Skills and Employment Branch, Department of Human Resources and Skills Development]

Good afternoon, Mr. Chair and distinguished members of this committee.

It is a pleasure to be here today to speak to you about Private Member's Bill C-316, An Act to amend the Employment Insurance Act (incarceration), sponsored by Mr. Richard Harris, MP, and to provide you with information on the proposed amendments that the government plans to table at the clause-by-clause analysis.

But first, let me begin by talking about the EI program in general terms.

The EI program is designed to provide temporary income support to replace lost employment income to persons who become unemployed or are off work temporarily because of pregnancy and childbirth, parenting, sickness or compassionate care.

To establish a claim, an individual must have paid EI premiums and meet the eligibility requirements in the region where he or she resides. The number of hours that an individual will require to establish a claim for regular benefits is determined by the variable entrance requirements and is equal to 600 hours for special benefits. Generally, these hours must have been worked in the 52 weeks preceding the interruption of earnings, a period that we refer to as the qualifying period.

If the person meets the entrance requirements, a 52-week benefit period is established, during which that person may collect the benefit for which he or she is entitled. These two 52-week periods, the qualifying and the benefit periods, can be extended under special circumstances, but never beyond a maximum of 104 weeks.

The EI Act contains provisions that outline circumstances under which the extensions are granted. These extensions all have a common policy rationale—they relate to situations where the claimant is not available for work or entitled to benefits “through external circumstances beyond his or her control”. As such, extensions are available to individuals for situations such as being incapable of work because of illness, injury, or pregnancy; receiving assistance under EI benefits; receiving payments under a provincial law on the basis that continuing to work would have resulted in danger to them, their unborn child, or a child whom they are breastfeeding; or receiving worker's compensation payments for an illness or injury.

Under the current legislation, claimants may also have their qualifying or benefit period extended, beyond the usual 52 weeks, for each week they are confined in a jail, penitentiary or similar institution. This extension of the qualifying period for inmates has been in force since 1959, while the extension of the benefit period has been in force since 1977, and both apply to regular and special benefits.

Bill C-316, sponsored by Mr. Harris, proposes to remove the extension of the qualifying and benefit periods for inmates, regardless of the reason for their incarceration. The bill as proposed would mean that any period of time that a person is detained, whether in remand, waiting for his/her trial or sentence, or after being convicted of an offence, could no longer be considered to extend either the qualifying and/or benefit period.

To ensure that those who ultimately are not found guilty of the offence for which they are being charged can still benefit from the extension currently in the EI Act, amendments will be proposed during the clause-by-clause stage. These amendments seek to ensure that the repeal of the extensions only targets those who were convicted. In other words, the proposed amendments limit the extension provisions for inmates to claimants who have been detained and are later not found guilty on all counts, including for any other charges arising out of the same incident for which they had been held.

This means that by default, any person spending time in jail or in other similar institutions would not receive any extensions. The extension of the qualifying or benefit period for a claimant who has been detained would be granted only when the person made a request to Service Canada, supported by evidence that he or she was detained or incarcerated and was later not found guilty.

Two additional clauses are also being proposed. The inclusion of a coming-into-force clause will ensure that the amendments to the act will come into force on the first Sunday following royal assent, while a transitional clause will provide for greater certainty as to how the change will be applied.

Let me describe concretely the application of these clauses. The amendments will apply to any qualifying or benefit periods established on or after the day the act comes into force. This means that only claimants whose claims are established after the coming into force and who are not found guilty of an offence or offences for which they were detained will be eligible for an extension of the qualifying and/or benefit period.

When a claim has been established before the coming into force, current provisions will apply. Therefore, claimants, regardless of their culpability, would continue to be eligible for an extension of their qualifying and/or benefit periods. However, for claimants who have been found guilty, extensions would be provided only for the weeks that fall before the date the act came into force, but not for the weeks after that date.

Given that qualifying and benefit periods can only be extended up to a maximum of 104 weeks, only those who are incarcerated for less than two years can currently benefit from these extensions. Claimants who have been incarcerated more than a year cannot have an extension equivalent to their full period of detention.

Adult criminal court statistics collected by Statistics Canada show that, in 2008-2009, 66% of accused individuals were found guilty, a proportion that has been stable over the last few years. The remaining one third of persons being charged, and possibly being detained, were not found guilty due to their acquittal (3%) or because the cases were resolved by being stayed, withdrawn or dismissed (30%).

Out of those 260,000 individuals who were found guilty, around 90,000 received some form of prison sentence, which means that custodial sentences were imposed in 34% of the cases of guilty verdicts. Approximately 96% of these custodial sentences were imposed for periods under two years: 55% were one month or less; 31% were greater than one month, up to six months; 6% were greater than six months but less than a year; and 4% were greater than a year, up to two years.

With respect to the number of inmates expected to be impacted by this new measure, it is important to note that not everyone who is eligible for an extension of his or her qualifying or benefit period does benefit from it. As an example, an inmate who lost his job when he was arrested and has been incarcerated for 30 weeks could, under the current legislation, extend his benefit period to 82 weeks. However, he may find work 10 weeks after being released from jail and be able to collect his EI benefits within the usual 52-week benefit period.

The department does not collect information on the number of people who receive and benefit from such extensions. To assess the impact of this bill and amendments, an extensive manual review of past EI claims and an analysis of extensions to the EI qualification and/or benefit periods granted to individuals who were incarcerated was performed.

Based on this review, it is estimated that approximately 1,500 EI claimants benefited from a qualifying and/or benefit period extension as a result of being incarcerated, which means that these claimants were entitled to additional EI benefits that they would not otherwise have been entitled to receive. It was further estimated that repealing the current provision for anyone who is detained would have impacted about 700 of those claimants, of which 10% would have been significantly impacted, as they would no longer have been able to establish a claim.

Based on this estimate of 700 claimants who would have been affected, the proposed changes under Bill C-316 would result in estimated annual savings of approximately $3 million to the EI operating account.

Let me conclude by thanking you again for the opportunity to contribute to your study. Bill C-316 would eliminate inmates' extensions of qualifying and benefit periods that are not available to most claimants while ensuring that those who are detained but have done nothing wrong will not be penalized, as this would be considered as circumstances over which they had no control.

[Manon Perreault, NDP, Montcalm, QC]

Good afternoon. Thank you for joining us today.

My question is for Ms. Pate.

Your presentation is quite consistent with the study done by the Canadian Women's Health Network. The study shows that criminalized women are one of the most marginalized groups of society. They often come from a challenging socio-economic environment, they have unstable jobs and they are often dealing with addiction and mental health issues. As you said, a number of studies have shown that many prisoners—both men and women—with mental illness were sent to prison for minor crimes, such as shoplifting or non-violent offences.

Could you tell us about the impact of Bill C-316 on this group of people? Could you also tell us how they will be rehabilitated and reintegrated into society if they don't have a right to an extension of the qualifying or benefit period?