Justice Committee on May 6th, 2009

[Réal Ménard, Bloc, Hochelaga, QC]

Minister, since everyone is being congratulated, I imagine that you will not hesitate to congratulate me as well, because this particular measure has been in the Bloc Québécois' platform since 2007. So, I expect you to congratulate me and pay tribute to me for having suggested to my party that it endorse such a measure, even before you gave instructions to your own officials who, by the way, are quite brilliant, since I happen to have studied with your neighbour to the left at the University of Ottawa.

Having said that, I would like to come back to two issues. You partly answered the question about the definition of the expression “where circumstances warrant” with respect to the 1.5 credit for time served, but we did have some concerns, because there is not much information about what is referred to. In your opening statement, you mentioned the possibility that a trial could be unduly delayed and that the conditions of detention could be poor. You also referred, in answer to Mr. Petit's question, to the difficulty of being heard in one's mother tongue. That gives us some parameters with respect to what that expression means, but if you are able to add anything further, we would be very pleased to receive some additional clarification.

The same ambiguity exists with respect to previous conviction. For example, it says that the 1.5 rule will not apply to someone who has had a previous conviction. Are we talking about a conviction only under a federal statute, or does that also apply to a provincial conviction? Why not define the term “previous conviction”?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it's appropriate to give discretion to the courts. We provide guidelines at the federal level. Again, this is a provision that allows the courts to determine on a case-by-case basis whether it would be appropriate. That being said, with respect to why the bail was denied in the first place, this places an onus on justices of the peace and those who deal with bail hearings to indicate on what basis they are not allowing the bail. That would be taken into consideration.

If and when the individual becomes convicted, they would have to look at on what basis the individual was not denied bail. We set out in the bill the circumstances under which the discretion wouldn't be taken into consideration. You said I've identified a circumstance where it was beyond the individual's control. Again, we set the parameters for the courts, and the courts will decide on a case-by-case basis, indicating why and how they came to that conclusion, but ultimately we leave it to the judges. I think that should satisfy you, Monsieur Ménard, since you indicated you've been a supporter of this. I want you and indeed all those who support this.... We'll move forward and we'll all have a celebration right across this country when this gets royal assent.

[Réal Ménard, Bloc, Hochelaga, QC]

I was expecting to be congratulated.

Is there a little time left for Mr. Lemay? I could share my time with Mr. Lemay.

[The Chair, Conservative, Ed Fast]

A minute and a half.

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

Minister, I hope you will congratulate my colleague to the right of me, because I did not agree initially, as a criminal lawyer, but he succeeded in convincing me.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's very interesting.

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

This is how it works. The problem at the present time is that we used to tell our clients that they should remain in preventive detention as long as possible in order to avoid ending up in a penitentiary. That way, when the judge handed them a sentence of two years less a day, or 20 to 22 months, they would not be sent to a penitentiary.

I agree with the idea of withdrawing this, but on one condition. You will have to prove to me that there are programs available in preventive detention facilities. If a chronic alcoholic waits 12 or 18 months in preventive detention, we are not solving the problem. If an individual has killed someone while behind the wheel of his car, for example, and is waiting to be tried, there is a serious problem.

What guarantee do we have that programs will be implemented for people who are in preventive detention, particularly at the provincial level?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You know that we have to be very careful. We have to be very respectful of provincial jurisdiction, Monsieur Lemay. It's precisely because the provinces have indicated to me that they don't have the kinds of programs they would like to have for a person who is being detained, who has been arrested and is detained in a provincial correctional institute. It's precisely for that reason they believe they would be better off if they'd get to a federal facility, if that's the sentence they're going to receive, because then they will get the kind of help they need.

What we want to do--and they tell me that this will help accomplish it--is expedite this process so they don't spend a lot of time. It's called dead time en anglais; I'm not sure what they call it en français. It's dead time. You want to make sure this person gets the kind of help they need.

We have to respect the provinces' detention of these individuals and what they do with those individuals, as long as they do it in a fair manner. They're saying this will be a very big help to them because it unclogs the provincial system, gets the matter decided. If they get to a federal institution, as I say, if my colleague the Minister of Public Safety were here, he would tell them they can get that kind of help, whether it be addiction education, or that sort of thing.

[The Chair, Conservative, Ed Fast]

Thank you.

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

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

Thank you, Mr. Chair.

Mr. Minister, although we've signalled our support for this legislation, Mr. Lemay's is with some reservation. I heard you give us assurances from the Minister of Public Safety, but have you actually seen any analysis or studies of how many more people are going to be in our provincial jails, not our holding pens but our provincial jails and our federal prisons, if the one to one is applied or if the one and a half to one is applied? Has there been any analysis so we know absolute numbers?

I want to say to you as a comment that I have serious doubts. When I was sitting on public safety, all the evidence I heard from Corrections was that all of our prisons, with one or two exceptions, were already full. If we're talking, as I think we are here, of several hundred and probably closer to 2,000 a year more people being in our provincial and federal prisons, we do not have the capacity to take them.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You started off by asking how many more people will be in our provincial institutions. I've had attorneys general right across the country tell me there will be fewer people in provincial detention because most of the people being held at provincial institutions haven't had their case decided, and this is a change from over the years. That's precisely the problem. The provincial correctional institutes are clogged by holding people who are awaiting trial, awaiting a disposition. All of them tell me it will get better.

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

Mr. Minister, I don't know if you know, but those are two different facilities.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The wait times are the same.

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

The holding cells are different from the provincial--

[Rob Nicholson, Conservative, Niagara Falls, ON]

No, they're not necessarily at all.

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

They certainly are in our community and in most of the communities in Ontario.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm not professing to speak for the provincial attorneys general, but again, all of them tell me this will free up provincial resources to be able to deal with these individuals. Again, with respect to what Correctional Service Canada said, I don't have the analysis here because I'm here speaking on behalf of my department, the Department of Justice. But again, I have the assurances of my colleagues that the capacity is there and will be there.

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

You don't know, though, if they've done an absolute analysis.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can't speak for the Correctional Service, and I don't think I should.

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

In the analysis--and this is more from your department, certainly, than Corrections or Public Safety--

[The Chair, Conservative, Ed Fast]

Just one moment, please. We have three different conversations going on here.

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

Mine's the more intelligent one, Mr. Chair, by far.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, please go on.

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

Mine and the minister's is much more intelligent.

Mr. Minister, one of the concerns I do have--and I think Mr. Lemay shares this with me--is that as a result of this, if our judges are seeing that in fact more people are in pretrial custody, in situations that are less than humane, they will begin to grant bail when they might not have otherwise. Has any analysis been done of that risk?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't have any analysis of that.