Bill C-483 (Historical)

An Act to amend the Corrections and Conditional Release Act (escorted temporary absence)

This enactment amends the Corrections and Conditional Release Act to limit the authority of the institutional head to authorize the escorted temporary absence of an offender convicted of first or second degree murder.

Corrections and Conditional Release Act

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, I am rising to supplement my comments made in an initial response to the point of order raised by the hon. member for Malpeque on Wednesday, April 9, respecting the third report of the Standing Committee on Public Safety and National Security concerning Bill C-483.

I will tackle two matters in these submissions. The first is to address the subsequent response made by the hon. House leader of the official opposition. The other is to offer some citations in support of my argument.

On April 9, the hon. member for Burnaby—New Westminster intervened and said, “I found the point of order raised by the member for Malpeque to be very compelling. I did not find the intervention from the government House leader very convincing at all”.

I found something that the member just might find convincing: his own party's position at committee. On page 2 of the evidence of the April 1 meeting of the Standing Committee on Public Safety and National Security, the public safety critic, the hon. member for Esquimalt—Juan de Fuca, spoke to a question of the scope of the bill and whether the amendments proposed were within the scope of the bill. He said:

...I would have to say in this case, having spent a lot of time looking at the bill, I believe that the amendments by the government make changes that really amend the same sections of the Corrections and Conditional Release Act and they do it by the same means. So to me it would technically seem to meet the scope requirement. It has not moved beyond what was originally suggested.

I will repeat that: “...seemed to meet the scope requirement. It has not moved beyond what was originally suggested”.

The member went on to say:

Now I have to say I'm very happy because we raised some concerns in the questioning of witnesses and the vast majority of those concerns have been accommodated in these amendments. So I would also be in a very strange position if I said the government actually listened and then I don't think procedurally they can do that.

If the NDP House leader will not find my arguments convincing, I do hope he will at least find his own colleague's arguments persuasive. I do find the arguments from his colleague, the member for Esquimalt—Juan de Fuca, quite convincing on this point.

It does bear an interesting question for you, Mr. Speaker, of who actually does speak for the NDP: the House leader or its critic. In this case, I would encourage you, Mr. Speaker, to listen to their critic. However, I digress.

The second part of my submission relates to the assertion of the hon. member for Malpeque, that the amendments adopted by the committee go beyond the scope of the bill. This morning, on another matter, the hon. Parliamentary Secretary to the Leader of the Government in the House of Commons read from page 564 of Erskine May's Parliamentary Practice, 24th edition on the definition of the scope of the bill. It states:

Any amendment (or new clause or new schedule) proposed to a bill must be within its scope. The scope of a bill represents the reasonable limits of its collective purposes, as defined by its existing clauses and schedules. In particular cases difficult cases of judgment may arise. The scope of a bill, particularly of a bill with several purposes, may be wider than its long title, although the long title may help to determine its scope.

I would supplement that by reading from Beauchesne's Parliamentary Rules and Forms, sixth edition at paragraph 698(2):

An amendment must not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision which the committee has given upon a former amendment.

Paragraph 5 of that Beauchesne's citation states:

An amendment which is equivalent to a negative of the bill, or which would reverse the principle of the bill as agreed to at the second reading stage is not admissible.

Despite these amendments, the bill's proposal to enable victims to participate in the hearings to be held by the Parole Board of Canada on certain applications for an escorted temporary absence is preserved. As I mentioned on April 9, the committee's amendments may in fact narrow the extent to which the escorted temporary absence regime in the Corrections and Conditional Release Act would be changed, and thereby arguably narrow the scope of the bill, not broaden the scope of the bill or not go beyond it. It would narrow it.

What has changed is that these Parole Board hearings would not be required in every instance. If an offender is approved for an escorted temporary absence by the Parole Board, a warden could approve subsequent temporary absences, so long as the offender did not breach a condition of an earlier temporary absence. If anything, these amendments would actually strengthen the spirit of the bill, to respect victims. With these amendments, victims would have an opportunity to participate in this process, but they would need not fear being revictimized by receiving invitations to many repetitive and redundant hearings.

Nevertheless, while the scope or extent of the bill may be narrowed here, the amendments do not negate, do not overturn, and do not offend the principle of the bill. Therefore, the public safety committee's report is in order.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I appreciate the opportunity to speak. As I said earlier, it is a fairly lengthy point of order, and my apologies for having to disrupt the chamber right after question period.

I was closing the quote on Sue O'Sullivan, Federal Ombudsman for Victims of Crime, who stated in evidence on March 25, on Bill C-483, “At its core, this bill”, and what she meant was the original bill, before the amendments: “At its core, this bill aims to bring a more transparent and inclusive process to victims of crime. I fully support this shift and the benefits it brings to victims”.

Another witness, Kim Hancox, spoke in support of Bill C-483 stating that “Accountability is severely compromised as a result of this closed-door process”. She was referring to the process whereby prison wardens are empowered to grant escorted temporary absences. She continued by saying:

There is a lack of consideration for victims, which impedes progress of victims' rights and recognition in the criminal system. This practice undermines the public's confidence in a system that is supposed to keep them safe from violent offenders.

Krista Gray-Donald, director representing the Canadian Resource Centre for Victims of Crime, an organization that the committee was informed had been working closely with the member for Oxford on the legislation, was clear in her testimony before the committee, on March 27, as to what she believed the legislation would terminate, namely, the ability of wardens to grant escorted temporary absences. She said:

The board of directors of the CRCVC feels the process that allows wardens to grant ETAs to offenders serving life does not assess risk as thoroughly as the release decision-making process undertaken by the Parole Board. We believe this allows offenders to avoid accountability for the harms they have caused and closes the decision-making process to the public.

I believe it is important to place on the record the statements made before the committee by both of the commissioner of the Canadian Parole Board, in testimony on March 25, 2014, page 13 of the evidence, and the Commissioner of Correctional Service Canada, in testimony on March 27, 2014, page 8 of the blues. Both stated that with respect to the ETA program that their agencies are responsible for permitting and overseeing, the success rate is 99%.

At no time, and I repeat, at no time, did any member of the committee, government members in particular, challenge either commissioner on the success rate of the escorted temporary release program. This program is by all accounts a success, with no demonstrated risk to public safety.

On April 1, 2014, and this would be after the above witnesses presented, the government presented its amendments to Bill C-483 at the public safety committee, and that is where my concerns arise.

At page 767 of O'Brien and Bosc, it states with respect to amendments made to legislation which may be found to be out of order:

The committee's decisions concerning a bill must be consistent with earlier decisions made by the committee. An amendment is accordingly out of order if it is contrary to or inconsistent with provisions of the bill that the committee has already agreed to....

I would also remind the House of the ruling of Speaker Fraser on April 28, 1992, at page 9801 of Debates:

In cases in which the Chair is asked to rule on the admissibility of committee amendments to bills, any modifications which offend a basic principle in the legislative process are struck from the bill.

However, the amendment from the government has undermined that principle. It reads in part as follows, which was presented to the House in the third report of the committee.

On clause 1.1, and I am reading from proposed subsection 17.1(2):

If the Parole Board of Canada authorizes the temporary absence of an inmate under subsection (1) for community service, family contact, including parental responsibilities, or personal development for rehabilitative purposes and the temporary absence is not cancelled because the inmate has breached a condition—

This is the critical section:

—the institutional head may authorize that inmate’s subsequent temporary absences with escort if the institutional head is of the opinion that the criteria set out in paragraphs (1)(a) to (d) are met.

In my view, this would change the principle of the bill.

The witnesses all came before the committee on the original bill and claimed that they did not want the institutional head to be allowed to make those decisions. That was the basis of the witnesses' presentation at committee.

That whole thrust changed with the amendments from the Government of Canada.

In speaking to the amendments presented by the government, the following exchange illuminates the concern I have with respect to the principle of the bill having been changed as a result.

I put the following question to the director of policy for Corrections Canada on April 1, 2014:

As I understand it, the original bill was ensuring that the warden would not be in a position to allow any temporary absences at all during the last three years of a sentence. Now with this amendment, the Parole Board will be involved in the first request for a temporary absence during that three-year period, but not anymore after that unless there is a problem with what happened on the temporary absence.

The response from the director of policy stated, in part:

You are correct...in that once that lifer reaches the three-year window before their full parole eligibility, once the Parole Board grants a positive decision for a rehabilitated ETA and that ETA period is successful—in other words, the offender does not breach their conditions while on that ETA—any subsequent ETA decisions can then be made by the institutional head.

Therefore, I am suggesting that the government amendments to the bill are inconsistent with the original principle of the bill as articulated by the member in whose name the bill stands, by other members of the government during second reading and at committee, and witnesses appearing before the committee. Namely, that as a result of this legislation, it was expected that the Parole Board, and only the Parole Board, would be involved in the granting of escorted temporary releases as they apply to offenders convicted of first and second degree murder.

Given that evidence as to the success of the ETA program, evidence which was available prior to the tabling of Bill C-483, I would submit that the principle of the bill as originally passed at second reading, has, by the government amendments, been completely undermined.

The principle of the original bill has ceased to exist and has been replaced.

Again, while the intent of the member for Oxford is not in question, the ability of his legislation to achieve what he committed to this House and, more important, what he committed to the victims of crime in whose name he presented the bill, has been refuted through government amendments.

As such, I would submit that the amendments have placed the bill as reported from committee within the context of being out of order.

I would conclude by reminding Canadians that as we undertake a debate on Bill C-32, the victims bill of rights, that they examine the text of that bill closely and match the content of that bill with the rhetoric of the government with respect to what has been promised.

It is my submission that Bill C-32 is worthy of support. It will fall to the government to explain to the victims why the legislation would likely not achieve the promises that have been made.

Let me sum up in layman's terms. These private members' bills are becoming a shell game. Witnesses come before a committee, the promoters promote their bill on the basis of the original bill, and on the basis of what the promoters of the bill have said relative to the original bill.

However, after all the witnesses have appeared before committee, the justice department's legal counsel, also from the government side, then come before committee and either water down the bill or change it in such a way that the original principle and intent of the bill is undermined.

Thus the bill no longer does what the promoter of the bill, in these cases backbench Conservatives, said it would do. Therein lies the problem. That is my point of order; that the bill no longer represents the principle and the intent of the bill brought in by the backbench Conservative member. In fact, government lawyers, themselves, changed the intent of the bill at committee, after all the witnesses had appeared.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, as I was saying, the private members' bills in question are Bill C-489, Bill C-479, and now Bill C-483. I would suggest that this is a matter the Chair might wish to carefully examine.

With respect to Bill C-483, I would like to cite a number of references made by the member for Oxford and other members of the government with respect to what the intent of the bill was and what in essence the principle of the bill was.

At page 1236 of Debates, November 21, 2013, the member for Oxford stated what the purpose and the principle of Bill C-483 was. He said:

The bill proposes to grant the Parole Board of Canada authority for the full length of the sentence to grant or cancel escorted temporary absence for offenders convicted of first or second degree murder.

...This would mean that the wardens of federal prisons would no longer have authority to grant temporary escorted absences to inmates convicted of first- or second-degree murder, except in a medical emergency.

There is no ambiguity in the statement by the member as to the intent of the legislation. The bill was written to specifically remove the ability of wardens to grant escorted temporary releases.

Under the current legislation, Correctional Service of Canada, through the wardens of federal institutions, has the authority, when offenders serving a life sentence are within three years of their eligible parole date, to grant escorted temporary absences.

The reason the member has moved, through Bill C-483, to undertake these changes to the Corrections and Conditional Release Act, were stated as follows during second reading debate on November 21, 2013, at page 1236 of Debates:

...for some victims' families, the decision-making authority of wardens to grant escorted temporary absences to murderers has been a matter of great concern. ...

...no hearings are conducted, as decisions are made on an administrative basis by institutional heads. In contrast, when decisions by the Parole Board of Canada are made, hearings are conducted....

The member continued by saying:

...when the Parole Board of Canada conducts a hearing, a victim or a member of the public who applies in writing is permitted to attend....

During the course of second reading, the Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness contributed, at page 1241 of Debates, November 21, 2013, to the declaration as to what Bill C-483 would achieve. She stated:

...the bill we are here to talk about today relates to escorted temporary absences from prison. More specifically, it is about ensuring that only the Parole Board of Canada has the power to release prisoners except in very limited circumstances.

There is no ambiguity as to what the member for Oxford or the parliamentary secretary believes Bill C-483 would bestow upon victims. They would have a direct role as participants in the escorted temporary absence system from the first day of incarceration until the last day of incarceration of those convicted of first and second degree murder.

The parliamentary secretary continued at page 1241 by stating:

As the member for Oxford has said, we continue to hear calls from victims of crime who feel that decisions on these absences should remain with the Parole Board, rather than an unaccountable official.

During the course of the hearings on the legislation before the public safety committee, the statements related to the key principles of the bill were restated a number of times. I will not go through all of those particular statements from witnesses, other than to say that as noted on page 11 of the Evidence, Sue O'Sullivan, Federal Ombudsman for Victims of Crime, stated on March 25:

Bill C-483 seeks to amend the Corrections and Conditional Release Act to shift the authority of the warden to authorize the escorted temporary absence, or ETA, of an offender convicted of first- or second-degree murder within three years of full parole eligibility to the Parole Board of Canada. At its core, this bill aims to bring a more transparent and inclusive process to victims of crime.

Let me sum up in layman's terms.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am rising on a point of order in relation to private members Bill C-483, which stands in the name of the member for Oxford.

I want to begin by stating that my concerns are not related to the intent of the bill. I also want to acknowledge that the member for Oxford placed this bill before the House and the committee with the best of intentions, and in his remarks both in the House and at committee, he stated eloquently and with conviction the intent and principle behind the bill.

However, I would submit to the Chair that in the process of the committee's examination of both the bill and the amendments that the government was compelled to bring forward, the bill as amended has in fact moved a great deal away from its original intent and principle as articulated by the member for Oxford, as well as other members of the government in speaking to the bill and witnesses who testified before committee in support of the bill, all of whom were in support of the bill prior to the government amending the bill, but which is now substantially different from what those witnesses and members were speaking to.

At this point I would also draw to the attention of the Chair the fact that each of the private members' bills by government members that has come before the public safety and justice committees have required amendments that most often have exceeded the number of original clauses in the bills.

This, I would submit, is a situation of either bad drafting of bills or of government members insisting upon a specific course within their private members' bills, resulting in legislation that is so flawed that the government, with its legal advisers, literally has to redraft the legislation through the use of amendments.

The private members' bills in question were Bill C-489, Bill C-479, and now Bill C-483.

Public Safety and National Security

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Mr. Speaker, today I have the honour to present, in both official languages, the third report of the Standing Committee on Public Safety and National Security, in relation to Bill C-483, An Act to amend the Corrections and Conditional Release Act (escorted temporary absence), from the member for Oxford.

The committee has studied this bill and has decided to report the bill back to the House with amendments.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, colleagues. We have now completed before this committee, Bill C-483.

I thank our colleague for introducing the bill and I thank my colleagues for all their cooperation moving forward.

We obviously have a full meeting scheduled for Thursday, I would assume. We can slip into committee business right now if you wish. However, it was my understanding, as carried forward, that we would proceed with the economics of policing and that there will be other business that we could of course introduce at that particular point. Are we all comfortable with that?

Fine. Thank you.

This meeting is adjourned.

[The Chair, Conservative, Daryl Kramp]

Okay.

I think there are two questions here. Obviously, one is whether or not the amendment is actually within the scope. As an example, this is basically suggesting not what they should do, but how they should do it.

So does C-483 tell us how to act or just whether to act? At this particular point the chair would be willing to hear discussion on that and perhaps we could even ask our witnesses for their opinion as to whether or not this would be in order for Bill C-483 as it is requesting that Correctional Service Canada.... At this particular place, it's basically advising them how they must staff and is that in order or is that within the parameters of the bill or would that be a matter with Correctional Service Canada within their own decision? The chair is asking for comments, certainly, from our witnesses, and we are open to the floor as well.

Yes, Mr. Churney.

[Daryl Churney, Director, Corrections Policy, Department of Public Safety and Emergency Preparedness]

Thank you, Mr. Chair.

I'm Daryl Churney and I'm the director of corrections policy at Public Safety Canada. I'm joined today by Michel Laprade, general counsel of legal services at Correctional Service Canada.

I did hear Mr. Easter's question, and I think I would just reiterate Mr. Norlock's answer, which is Bill C-483 only makes amendments to the Corrections and Conditional Release Act, as you know. However, that said, the Criminal Code is the parent authority for escorted temporary absences, so the CCRA is the subordinate legislation subject to the Criminal Code. The Criminal Code is very explicit and very clear in that the Parole Board of Canada is responsible for ETAs other than those for medical reasons, to attend judicial proceedings, or to attend a coroner's inquest. That will not change as a result of this bill. CCRA will remain subject to the Criminal Code and that explicit authority for wardens will remain in effect.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I don't think it's necessary because the Criminal Code, which is the parent authority for ETAs, already delegates authority for granting ETAs for medical reasons, judicial proceedings, and attending court inquests to the Correctional Service of Canada. The Criminal Code's not being changed by Bill C-483, so that authority does not change.

I think we need to rest assured that the effect of Bill C-483, after the government's amendments, will be to ensure that the warden, Correctional Service of Canada, maintains authority for granting ETAs for judicial proceedings throughout an offender's proceedings, because, quite frankly, a warden cannot disregard a court order. When an inmate attends court, there's either a subpoena or some kind of court order, and there already exists within the system the authority for granting those temporary absences for that purpose.

[The Chair, Conservative, Daryl Kramp]

Okay and I will just read the subamendment, just so we have clarity first of all. It says that Bill C-483 be amended by adding the following new paragraph to 17.1(1), which is (e), and it reads as follows: The institutional head may still authorize escorted temporary absences for medical emergencies or court appearances.

Yes, Mr. Norlock.

[The Clerk]

C-483 is a private member's public bill. It's not a private bill, sir. Regarding the amendments themselves, the legislative clerk Mike MacPherson can advise the chair on the effects that the amendments would have to the bill.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chair, I do have a point of order that is basically in the form of a question to the clerk of the committee.

I've had an opportunity to go through the government amendments to this bill. Given the very extensive changes, I wonder whether the clerk has assured the chair that the amendments are in order and do not create a bill substantially different from the bill that was passed at second reading. I submit they do. I'll refer to page 1197 of O'Brien and Bosc, which states:

The amendments made to a private bill by a committee ought not to be so extensive as to constitute a different bill from that which has been read a second time.

I would submit that I believe they do. Having said that, I'm basically asking the clerk to give us the assurance that at least he believes the amendments to Bill C-483, if passed, would not result in a substantially different bill from that which the House approved at second reading.

I will state this as well. It is my intention, regardless of what the clerk states, that if these amendments are in fact approved, to pursue the matter with the Speaker of the House when the bill is reported to the House. Therefore, I want the record of the committee to be clear on this point as to whether the amendments from the government, if approved, will or will not, in the opinion of the clerk, constitute a bill different from that which was approved at second reading.

There's no question, in my mind, Mr. Chair, that the amendments improve the bill substantially from what the bill was, but that's not the point here. The point is that this is a different bill. The committee knows I have concerns about some of these private members' bills and the number of amendments we're getting from the government side.

I'll conclude, Mr. Chair, by saying that if the clerk has any question as to whether these amendments, if passed, would constitute Bill C-483 having been so altered as to constitute a new bill as outlined in O'Brien and Bosc, it is my opinion that the clerk should so advise the chair and that as a result, a new bill would have to be brought in.

If you go through these amendments, Mr. Chair, there is no question in my mind. Number one, as I stated previously, this bill may require a royal prerogative in that it constitutes substantial spending other than what would otherwise be the case, and it changes, in my view, the intent of the bill.

That's my point of order, Mr. Chair. I'd like to hear what the clerk has recommended.

[The Chair, Conservative, Daryl Kramp]

Colleagues, we will call this meeting to order.

This is the Standing Committee on Public Safety and National Security, meeting number 18 for the session.

Today we will be doing clause-by-clause on Bill C-483. I'll just mention as we're proceeding that we do have votes today, so just consider that in your time for moving forward with this bill and for any other options the committee wishes to pursue at some particular point.

Mr. Norlock.

[Mike McCormack]

First of all, surrounding domestic violence and policing and law enforcement and the culture, we have changed. We have learned a lot from those days. That's exactly the way it was when I started the job. Violence was looked at through quite a different lens and that was the way it was handled. We have learned a lot over the last 30 years from a law enforcement perspective in what is going on with crime and how people are victimized.

The only thing I don't agree with is when you say that this type of legislation is going the extra mile. To me, this type of legislation is about fairness. It's not going the extra mile. The extra mile has a connotation that we're going above and beyond. I think you're seeking the threshold for these victims.

I'm not only here speaking as a police officer who worked in some of the toughest communities in Toronto where violence was a reality, serious violence, murder, and so on, but also from our officers' perspectives. We've had officers who have paid the ultimate sacrifice: they lost their lives. You heard about Bill Hancox, and the last time I was here I talked about Michael Sweet.

Some of the cornerstones of what we were talking about around BillC-479 were just the acknowledgement of victims and letting them have a role and a say, because what continually happens in the legal system is that victims are never a victim on the first occasion and then it's over and they go back to their lives and everything's fine. They are continually revictimized.

Part of having somebody who is accountable and responsible for the death of your loved one is that's always there in the back of your mind, even when we're going through a process like the parole process when there are hearings every year and so on and so forth. That's one level.

To have the victims there to take part in that and to at least feel as if they're having an impact on what's going on is one thing, but then when we talk about Bill C-483 taking away.... It's one thing for them to participate in the parole process, but then to have any citizen go home from that process and then to be arbitrarily cut out and the system usurped and the warden say that we're going to go on these ETAs, where's the procedural fairness? I believe that revictimizes the victims.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Mr. Chair, through you to the witnesses, thank you for being here.

My first question would be for Mr. McCormack.

Let me just say that 43 years ago when I was a young rookie officer dealing with victims, especially victims of domestic assault, and I think you would be familiar with this, because policing is in your family history, a woman—usually it was a woman—even with black eyes and serious injuries would have been told by a police officer after she was removed from a residence that she would be given an opportunity, and the police would assist her, to swear information before a justice of the peace, but the police wouldn't.

Would you agree with me that today, some 43 years later, we have vastly improved in that, in especially domestic assault but other assaults also, not only would the perpetrator be arrested and have a bail hearing but assistance would be given to the victims through victim services, etc.? Would you also agree with me that with regard to treatment of victims throughout the whole system, particularly now dealing with Bill C-483, we just need to go the extra mile to balance the scales so that it is at least equal? Would you agree with me? Would you make some comments in that regard?