Justice Committee on May 25th, 2009

[Howard Sapers]

My observations are based on the analysis of the intake, admission, and discharge in federal corrections, and I've looked at it both in terms of snapshots, a daily count, as well as trends. This is certainly not a new or novel conclusion on my part and the part of my office that the Correctional Service of Canada at present is extremely challenged in meeting its mandate of providing safe and secure custody and timely reintegration. They don't have the capacity to do that at present. So adding one or two or a thousand more offenders is just going to make that burden all the more challenging.

There are difficulties in terms of straight accommodation. The service has bricks-and-mortar needs. There are problems in terms of human resources, the recruiting and retention of professionals. The Correctional Service, I'm sure, will speak to these issues and make their own points, and the committee can then draw its own conclusions.

My conclusions are that, at present, the service is extremely burdened. When we took a look at the potential impact, we were asked, as an office, to provide some assessment of what the workload impact may be. It is my opinion that shortly following the enactment of the proposed changes, perhaps within a year, you'd begin to see an increase in admissions to the federal penitentiaries, and then cumulatively, over time, perhaps going out three or five years, we're talking about several hundreds of new admissions, which—

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

Sorry, can you quantify that in terms of a percentage?

[Howard Sapers]

Well, the daily count on May 10 was 13,353 in custody, about 500 of whom were women. If you take a look at that daily count and at trends in terms of admission and discharge, which have been relatively stable, then it's easy to see how, if you're double-bunked right now in 650 or 660 cells and you don't add new capacity, and most of that space crunch is at medium security, which is also where most of your program wait list is, adding even just a handful of offenders is going to make it all the more challenging in terms of managing the population.

If we had more time, we could get into the intricacies of managing those populations, because you have disassociation populations, mentally ill offenders, aboriginal offenders, offenders with gang affiliations who you have to keep separate. It becomes all the more complex.

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

Okay.

I want to ask Mr. Trudell, Ms. Youssefi, and Mr. McGarvey for a comment.

If this bill goes through, and it looks as if it probably will, given that it has three parties in support as it's presently constituted, what do you expect the judiciary is going to do?

[William Trudell]

I'm hoping you'll ask them.

I think a judge's job is going to become very much more difficult. How do they balance everything they see in front of them? And I think it adds a tremendous strain on the judges who have to make the final decision.

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

Let me pose a couple of hypotheticals.

Are they going to find it against the charter? Are we going to have charter challenges coming? And two, as an alternative to that, are they simply going to take it into their own hands and shorten the sentences—in effect, take into account the pretrial custodial time but not say it?

[William Trudell]

I think there will be charter challenges, absolutely.

Secondly, if I were a judge--and it would never happen--I would certainly take it into my hands to try to figure out what was fair and balanced, taking into consideration the protection of the public and the need for security, and the principles of sentencing. There's no question about it. And I think judges, when they're there, have to make the decision. They're not thanked for it, but they'll do what they think is right.

[The Chair, Conservative, Ed Fast]

Unfortunately, you're out of time. You can get the other answers on your second go-around.

We'll move on to Mr. Rathgeber for seven minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you very much, Mr. Chair.

I'd certainly like to thank all the witnesses for their attendance and for their expertise. I'd especially like to welcome Mr. Sapers.

Mr. Chair, you might be interested to know that Mr. Sapers and I are both former members of the Alberta legislature.

Welcome, all.

My first question is to Ms. Youssefi. You indicated that in your practise of criminal law you had never deliberately delayed the procedure in order for one of your clients to take advantage of the two-for-one credit, and I accept that without qualification. I'm curious to know whether a client of yours has ever fired you on the day of trial or so close to the day of trial that it was impossible for him or her to obtain and retain new counsel, therefore, perhaps, taking advantage of the two-for-one credit without your assistance.

[Dyanoosh Youssefi]

Thank you, Mr. Rathgeber. I could simply answer that by saying no, it has never happened to me. And I can say that in my experience, I have never heard any other defence counsel tell me of that happening to them. I repeat that in general, people want to get out. They don't want to stay in. They don't want to stay in a situation where they are sleeping on a floor, where there might be human excrement right next to their head because the toilet is overflowing. While there might be one or two stories out there of people who have tried to do what they can to stay in longer--and I have not heard of those stories personally--they do not speak for the majority of people who are in custody.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Just so we're clear, an in-custody client has never fired you on the day of trial?

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

Excuse me. I don't think that's an appropriate question.

[The Chair, Conservative, Ed Fast]

I would suggest that's for the witness to determine.

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

Well, I would suggest that the witness may decline to answer such an inappropriate question.

[The Chair, Conservative, Ed Fast]

That's her call.

[Dyanoosh Youssefi]

I don't mind answering it, because it happens. I've had clients who have tried to, but it certainly hasn't been for that reason.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I don't say that with any disparity, Ms. Jennings. I was a practising lawyer. Lawyers get fired all the time for a variety of reasons.

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

So how many times were you fired?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Well, I'm not answering questions.

[Dyanoosh Youssefi]

Just so that nobody is misled, I haven't been practising for the past four and a half years because I've been home taking care of my kids. I'm talking about the experience I had before that.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay.

Mr. McGarvey, you talked about the disparity--and that's a legitimate concern--regarding the potential elimination of the two-for-one. You compared it to the eligibility for parole and statutory relief. If your real concern is the elimination of the disparity, ought you not to be advocating for tightening up the parole eligibility and for elimination of the statutory release?

[Matthew MacGarvey]

Well, I suppose if the House decides that letting people who have served a full sentence out without any progressive release is called for, that's up to the House. We have known for probably almost a century now that progressive release is the only way that really serves the public. From my perspective, that would be absolutely foolhardy and is guaranteed to cause reoffending to dramatically increase.

Let me go back to what you were asking my friend. I would say that it does happen sometimes that people manipulate the system, fire the lawyer on the day of. Judges see through it. The case law, if you read it, has judges seeing through it and saying, “I'm not giving you two for one because you fired your lawyer on your day of trial”, or “I'm not giving you two for one because you didn't diligently try to advance the case forward.”

However, let's get to the other issue that the Attorney General for Ontario and the minister have identified, which is that this is caused by pretrial delay, ultimately, and this bill does nothing to address that problem. If you eliminate delay in getting to trial, you eliminate this perceived problem that is generating this legislation in the first place. Frankly, in Ontario, according to the Attorney General, delay has almost doubled the average time for cases since 1992. His goal is to reduce it by 30%. In my view, it's hopeless. So far there's been no noticeable reduction in the delay. Until and unless that happens, what you're doing, in effect, is punishing the people who have no control over the length of time it takes them to get to trial.

Judges do have the ability to bring the hammer down on people who manipulate the system. They have it now. You don't need this bill to give them that tool, because the current Criminal Code says it's in their discretion.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

But you'll agree with me that the judges also would have the discretion in this bill, if it should become law, to give a 1.5 credit if the delays are entirely outside the control of the offender.

[Matthew MacGarvey]

Not if they have been detained because they had a second and perhaps spurious outstanding charge. That's an important factor to take into account. This bill has the potential to have a grossly disparate and unfair effect on those kinds of people. People who may be entirely innocent of one charge but who are detained on a second charge may get hammered at one for one through no fault of their own.

I don't think you can simply ignore that and ask me to agree with you that this can give you 1.5 to one. Yes, it can. The reality is that some of those people who get 1.5 to one might have been eligible for parole at one-third, or for the halfway house early release program at one-sixth in the federal system. So 1.5 just doesn't cut it, frankly, and if you read Professor Doob's calculations carefully, you'll see exactly why 1.5 for one is really the norm for people who do nothing towards rehabilitation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Briefly, Mr. Trudell, you indicated that your opposition to this bill is largely premised on the conditions in remand. How do you reconcile those concerns with Mr. Sapers' testimony that the federal penitentiary system is already burdened and arguably may not be all that dissimilar to what offenders face in pretrial custody?