Justice Committee on May 25th, 2009

[William Trudell]

First of all, that's not what I said. I said that my concern about the bill is that it interferes with judicial discretion, and I cited Mr. Justice Rutherford in the Khawaja decision. That's my concern.

Second, I don't understand what you're suggesting. Are you suggesting that the situation in the federal penitentiaries is so bad that we should ignore it?

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

No. What I'm suggesting is that it may be an arguable point that the prison system generally has some problems with respect to the size of the populations, but I'm not.... My question is, is it your position that, comparatively, the remand system is so much poorer than what Mr. Sapers has described as an already burdened system, that those who are in that system ought to be given two-for-one credit?

[The Chair, Conservative, Ed Fast]

Mr. Rathgeber, unfortunately, Mr. Trudell will not be able to answer that because--

[William Trudell]

Well, I guess the answer is yes--

[The Chair, Conservative, Ed Fast]

Very, very briefly.

[William Trudell]

Okay. The remand centres are warehouses. People are four, five, and six in cells for a lot less.... This is not anecdotal. The evidence is there. The remand centres are a disgrace in this country.

[The Chair, Conservative, Ed Fast]

All right. Thank you.

Unfortunately, we're out of time and we have another panel to go to, so thanks to all of you for attending.

[William Trudell]

Sir, could I just say something very quickly? I apologize. I just want to raise with Mr. Murphy about the Canadian Bar Association that the--

[The Chair, Conservative, Ed Fast]

Mr. Trudell, we're going to suspend, but you could pass that on to him directly, and you can share it with these individuals who you want to stay. All right?

[William Trudell]

Thank you.

[The Chair, Conservative, Ed Fast]

We'll suspend for five minutes.

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

On the second panel we have Mr. Paul Alexander, representing himself. Then we have Mr. Don Head, representing the Correctional Service of Canada. We also have Mr. Andras Schreck, representing the Criminal Lawyers' Association of Ontario.

I thank all three of you for appearing.

You saw the routine. Each one of you will have time to present. I'm going to ask if you could perhaps shorten your presentations so we can leave time for more questions. That's where we get a lot of the productive work done. I'll leave it up to you. Certainly you don't have more than ten minutes, but I would prefer seven minutes. I'll leave it up to you. Then we'll go to questions.

Mr. Alexander, would you like to start?

[Paul Alexander, Barrister, Rosen and Company, As an Individual]

Thank you.

First I'd like to thank the committee for asking me to appear here. I appreciate the opportunity to make my views known.

Second, what I will say about this bill is this. At its best, it is misguided; at its worst, it is cynical and cruel. And I choose those words carefully.

This is a piece of legislation designed to solve a problem that, to my knowledge, does not exist anywhere other than in the popular imagination. In fact, to the extent the problem exists, as we heard from the earlier panel, the judiciary already has the tools to solve it, and there's case law showing that the judiciary does solve it. There is no need for a piece of legislation that limits judicial discretion and eliminates the ability of judges to afford what they perceive to be a just and fair sentence under the circumstances. All the legislation will do is increase unfairness in the system without solving any of the problems it purports to solve.

The reason is that Bill C-25 leaves untouched the two root causes of enhanced credit in the first place. The first is that pretrial detention does not count towards parole eligibility, because a sentence under the Criminal Code is deemed to start on the day the sentence is ordered and not on the day the person first goes into custody. That's the first reason enhanced credit is ordered. The second root cause of enhanced credit, as we've heard, is that conditions in pre-trial detention are so poor as to fall below the minimum standards established by the United Nations in the 1950s. We have been failing consistently since then to live up to the minimum standards of 50 years ago. As a consequence, enhanced credit is necessary to bring some fairness back into the system.

Bill C-25 will not reduce delay in the criminal justice system. There is no reason to believe that inmates intentionally delay trials to take advantage of enhanced credit. By my calculations, simple math dictates the opposite. Let's take, for example, a person who is sentenced at the end of a trial to three years in the penitentiary. Assume that this person has done no pretrial custody; there's no enhanced credit on the table. The sentence starts running the day of sentencing, and the person is eligible for parole after one-third of it. That means that he or she is able to be released, assuming all goes well with the parole hearing, after one year of the three-year sentence. That's the total time spent in custody, and it is spent in a penitentiary where there are facilities available to rehabilitate, train, and educate this person so that he or she will be less likely to reoffend on the outside. I'll also note that people will have beds to themselves and won't be sleeping with their heads next to the toilet, as so many inmates do in remand centres. So that's a person sentenced with no pretrial custody. Assuming the person is paroled at the earliest opportunity, he or she spends one year.

Let's assume instead that this person spent a year on remand before being sentenced. Applying the two-for-one credit, that takes two years off the sentence, and the person is now sentenced to serve a further year. Because the parole eligibility doesn't start counting until the day of sentencing, the earliest the person can get out is after one-third of this further year, meaning he or she is going to do another four months. Someone who has done pretrial custody and has enhanced credit is now going to do a minimum of 16 months compared to a minimum of 12 months for a person who has no enhanced credit--no two-for-one. The simple math means that there is no point in dragging out your pretrial custody, because ultimately, you'll spend longer in jail, and you will spend much of that time under far worse circumstances. So I always tell my clients, and John Rosen, whom I work for, always tells his clients, to speed up the trial and get out of there as quickly as possible, because if you're convicted in the end, you don't want to have to do all this dead time beforehand. What you want to do is get your trial over with so that if you're convicted, you can start working on your parole as early as possible.

In other words, the math doesn't make sense. It doesn't provide any justification or any incentive for dragging out your trial. Eliminating enhanced credit for people who are doing remand time won't take away any incentive they have to drag things out.

Furthermore, the Court of Appeal for Ontario, in a case called Thornton, held that where there is evidence that someone has been intentionally dragging out the trial to obtain enhanced credit, or even has been less than diligent in bringing the matter forward, the person doesn't get two for one. You only get it if circumstances beyond your control cause you to do more remand time than you otherwise would have liked.

Again, there is no reason for Bill C-25 to make enhanced credit unavailable. The courts already make it unavailable when it's being abused. All Bill C-25 will do is make it unavailable for people who are stuck on remand through no fault of their own. The only effect of it will be to punish people who are not abusing the system.

This bill is unfair. It will punish those who are unable to make bail even when they do nothing to contribute to pretrial delays. Because the impoverished are less likely to make bail, that means Bill C-25 will disproportionately affect the poor.

Furthermore, by making pretrial delays more onerous, Bill C-25 may result in more charges being stayed for unconstitutional delay. Paragraph 11(b) of the charter provides for charges to be stayed and cases to be thrown out when there is a lengthy and unduly prejudicial delay that affects the rights of the accused in getting to trial. The more onerous that delay is, the more likely a court is to look at that delay and say your rights have been unduly prejudiced and your charges are going to be stayed. Bill C-25 makes pretrial delay harsher by eliminating the ability of a judge to give credit for that delay where that credit is due. Therefore, that delay, which is more harsh, may result in more charges getting thrown out, which is the opposite of what this bill seeks to achieve.

There are other unconstitutional concerns about it. By subjecting accused persons to lengthy delays under conditions that fall below the minimum standards set by the United Nations, and then preventing judges from adequately crediting prisoners for their time served under these conditions, sentences governed by Bill C-25 may amount to cruel and unusual punishment, contrary to section 12 of the charter. It's an argument that we can expect to come up if this bill goes through.

It may also amount to an unconstitutional denial of liberty and security of the person, contrary to section 7 of the charter. That's another argument we can expect to see.

If we're worried about delays in courtrooms, another cause for worry is that a fair amount of time is going to be taken up litigating this subject.

Furthermore, there is reason to believe that Bill C-25 will be expensive to implement. By lengthening sentences, Canadians are going to be spending more money housing inmates for longer periods. This will also contribute to overcrowding in detention centres, in correctional centres, and in penitentiaries.

It doesn't appear that the government has studied the associated costs, nor is it clear whether the facilities even have room to accommodate these extra prisoners. What we may be doing is blindly dumping more people into spaces that can't hold them. At the minimum, it will be expensive. At worst, it may be impossible under current conditions.

There is no reason to believe that the lengthier sentences that will come as a result of Bill C-25 will protect Canadians. Research suggests that longer sentences do nothing to deter crime.

I've provided Ms. Burke, the clerk, with a brief memorandum that summarizes my submissions here. I've cited studies in there.

There is research suggesting that a lengthier sentence will not have any deterrent effect. On the contrary, one recent study suggests that inmates who serve longer sentences are in fact more likely to reoffend when they are released.

In sum, Bill C-25 will prevent judges from remedying the problem of onerous pretrial custody, but it won't affect the problem of onerous pretrial custody itself. In other words, this is an attack on the cure, not on the disease.

If Parliament is concerned about enhanced custody and believes it is being handed out too often, the thing to do is to attack the root causes of enhanced custody. Parliament could start by amending subsection 719(1) of the Criminal Code to allow sentences to begin on the date of arrest, at least for those who are spending pretrial time in custody. If that were to happen, parole calculations would begin from the date a person goes into prison, not the date they're sentenced. The time they spend pre-sentencing no longer will be dead time. That eliminates one of the key reasons for enhanced custody. It's an easy change to make. It costs nothing.

The other thing that could be done is that Parliament could work with the provinces to improve conditions in pretrial detention facilities. They should have rehabilitative programs in place so that inmates in detention facilities, instead of being warehoused for six months, a year, or two years awaiting trial, stuck in an overcrowded high-security facility without access to any programs, could spend that time being educated, being given treatment, being given counselling--all the things that would contribute to their contributing to society when they get out.

Those two simple steps would eliminate the rationale for enhanced credit and would cure the problem without attacking the remedy.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Alexander.

We'll move on to Mr. Head.

[Don Head, Commissioner, Correctional Service Canada]

Thank you, Mr. Chairman.

Mr. Chairman, committee members, I'm pleased to be here this afternoon to answer any questions you may have about the impact of Bill C-25 on the operations of the Correctional Service of Canada.

I'd like to provide you with some background about my history working within the criminal justice system. I was appointed commissioner of the Correctional Service of Canada in June of last year. Prior to that, I had held the position of senior deputy commissioner since 2002.

I also have several years' experience working for the provincial and territorial correctional systems, first in the Yukon and then as the assistant deputy minister responsible for probation and correctional services for the Department of Corrections and Public Safety in Saskatchewan. My work as the assistant deputy minister in Saskatchewan provides me with an understanding of the pressures related to the remand issue from a provincial, territorial, and federal perspective.

I'm also aware that the remand issue has been the subject of discussion at many of the federal-provincial-territorial heads of corrections meetings of which, as the commissioner of the Correctional Service, I am co-chair.

With respect to the impact of Bill C-25 on the Correctional Service of Canada, it is important to note that while additional offenders would now receive a federal sentence and come to CSC, the majority of offenders impacted would be those who would have already received a federal sentence; however, they would now receive a longer sentence and therefore stay longer within our system.

CSC will face accommodation challenges as a result of this legislation. The additional influx of offenders from this legislative amendment will require the Correctional Service of Canada, in the short term, to implement temporary accommodation measures such as the use of double-bunking and additional temporary structures to house offenders.

In the long term, CSC will have to look to construct more permanent accommodation, including the construction of new units or institutions to manage the population growth across the country.

Notwithstanding the impact of this bill, the Correctional Service of Canada is committed to continuing to fulfill its mandate to manage the sentences of federal offenders and to ensure public safety results for all Canadians.

I'm happy to answer any specific questions you may have about the impact or how the Correctional Service of Canada will respond to this bill.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Head, and thank you for your brevity.

Mr. Schreck, you've got 10 minutes maximum.

[Andras Schreck, Director, Criminal Lawyers' Association of Ontario]

Thank you, Mr. Chairman,

I'm here on behalf of the Criminal Lawyers' Association of Ontario, which thanks you for the opportunity to be here. The Criminal Lawyers' Association of Ontario represents about 1,000 lawyers in the province of Ontario who practise criminal defence work. It was founded in 1971. Our members are the people who work day in and day out in the system, and we are the people who represent the accused persons who will be directly affected by this bill.

I'll begin by saying that the COA wants to see improved efficiency in the justice system and wants to see delays reduced as much as anybody else. We agree wholeheartedly that there has to be transparency in the system. That said, we have grave concerns about this bill, and I'd like to divide those concerns into four general areas.

First of all, the problem the bill is designed to address, which is numerous accuseds clogging up the system by causing delay in order to rack up pretrial custody, simply doesn't exist. I have no idea where this idea comes from. As far as I'm aware, there's absolutely no empirical evidence in support of it. I can tell you, as a criminal defence lawyer who represents these people, who takes instructions from these people, it simply isn't true. There may be one or two people out there who have that attitude, but for the most part, the conditions in pretrial detention, commonly referred to by people who live there as “the bucket”, are so dismal that people can't wait to get out of there. If you're actually dealing with these people, the notion that they're going to sit there and delay the time they have to spend there on purpose is, quite frankly, laughable.

The concern belies a complete lack of appreciation of just how truly dismal the conditions in pretrial custody are. I'm not going to go through them all. I think you've heard them from other witnesses as well. I think it's fair to say that even if there's going to be double-bunking and increased pressure in the federal system as a result of this bill, it's not going to be anything near what you're seeing in the provincial remand institutions. Anybody who's interested should just go and take a tour of the Don Jail, or another one of those, just to see exactly what kinds of conditions people here are living in. The reality is, people want out of there as quickly as possible. They'd rather go to the penitentiary than spend more time in the bucket.

It's a well-known fact that denying bail results in guilty pleas. One of the concerns about denying bail too readily is that it will result in people pleading guilty who otherwise wouldn't, who otherwise would have a trial. Of course, the reason they plead guilty rather than wait for their trial is they have to get out of there; they want to get out of there.

As well, it's a well-established principle of sentencing that an early guilty plea is a significant mitigating factor, so any advantage that somebody may perceive they're going to get by delaying things is going to lose the effect of the significant mitigating factor of an early guilty plea in any event.

Most importantly, our members take some exception to the suggestion that we routinely engineer delays in order to somehow benefit our clients by having them spend more time in pretrial custody. First of all, for the reasons stated, it does not benefit our clients. More importantly, we're officers of the court; we have an obligation to the court to keep the system running efficiently insofar as it's within our power to do so, which is not very much. There's no evidence that criminal defence lawyers fail to discharge these obligations in a professional manner.

In any event, as you've heard already, the law is clear that an accused who does cause delay is not going to get enhanced credit in any event. Put simply, this bill is really a solution in search of a problem. It's important to remember that the common law guideline of two for one is not automatic. It's open to the crown in any given case where the crown sees fit to argue that this should be less credit, and if the crown has evidence available to justify that, the judge will not give the two-for-one credit and will give whatever credit is appropriate in the circumstances.

The reality is, there's no need for an accused, even an accused who wants to cause delay, to do anything to cause delay in the system. The system is quite capable of causing delay on its own, thank you very much. The delays in the system, and there are many, are caused by a variety of reasons. It's a multifaceted problem. They're caused by a shortage of prosecutors and judges; they're caused by an underfunded legal aid system that makes it difficult for accuseds to find competent lawyers, and a host of other problems.

The suggestion that eliminating judicial discretion in giving credit for pretrial custody will have any significant effect on the delays in the system is, with respect, completely and wholly unrealistic.

The second concern—I think you've heard this, and I'll be brief about this—is that it's simply unfair to prevent a trial judge from considering the effect of harsh pretrial conditions. I think there has been reference made to the United Nations standard minimum rules on the treatment of prisoners. Canada endorsed those rules over 30 years ago, in 1975, and with respect to many, there's not even a semblance of an effort to live up to those guidelines. We don't keep untried prisoners separate from convicted prisoners, they're not allowed to wear their own clothes, they don't get regular exercise, and they certainly don't sleep singly in a cell, as the minimum rules require.

The current approach allows a trial judge to take all of these factors into account. It's true that judges will often do so without hearing evidence on the conditions affecting the particular accused. But these conditions are notorious and well known to the judges who are functioning in the communities where they are imposing sentences. To hear evidence in each and every case would be unrealistic. Last year, for example, I spoke to the director of security at one of the detention centres in Toronto. He told me that even as it is, he's subpoenaed to testify in court at least three times a week about the conditions in his institution. One can imagine that if we're going to be hearing evidence about these things in each and every case, it's simply going to be a huge burden on the people who are working in these institutions.

It's always open to the crown to lead evidence to show that the conditions really aren't that bad. I've never heard of a crown doing this, and it's not hard to imagine why not.

The third concern is, as you've heard, that the bill fails to take into account parole eligibility or earned remission. Mr. Alexander, I think, pointed out the math in terms of why there is no benefit, even when you get a two-for-one delay. You can see how there's a huge disadvantage if there's only a one-for-one delay. Consider two offenders who each get a six-year sentence one year after being arrested. The first gets bail, the second doesn't. The first one is eligible for parole after two years. The second will get one year off, so he'll get a five-year sentence. He'll be eligible for parole one year and eight months after he's sentenced, but two years and eight months after he's actually taken into custody. So he ends up serving an extra eight months more than the first prisoner, simply because he was denied bail.

It's our submission that it's simply unfair. You can say it's his fault because he has a record or because he breached his bail, but the reality is that if he breached his bail, he'll be charged with failure to comply and he'll be punished for it. It is a criminal offence. If he has a prior record, that's taken into account anyway when a judge arrives at an appropriate sentence. A prior record is a well-known aggravating factor.

My quick and admittedly far from exhaustive survey of other common law jurisdictions has revealed no other jurisdiction—at least that I'm aware of—that has any law resembling this bill. In the U.K. and some parts of Australia, time spent in pretrial custody is deemed to be time served on a sentence, which is more or less what we do for the offence of murder in this country. At least then it's considered in determining parole eligibility.

The fourth concern is that the bill eliminates all discretion for accused who are detained prior to trial because of their record or because of a breach. The fact that there's a record or the fact that there's a breach may cause the fact of the delay, but it certainly doesn't cause the length of the delay, or have anything to do with the conditions in which the inmate ends up serving time during that delay. To eliminate all discretion in such cases is bound to result in an injustice in some cases. The current common law rules lessen that prejudice by giving a judge discretion. If you're going to increase the prejudice, I think as Mr. Alexander pointed out, you're going to see that being raised during paragraph 11(b) applications to stay proceedings because of unreasonable delay.

The fifth concern simply is this: there has been a lot of discussion that we need this bill because the public doesn't understand why we have two-for-one sentencing or two-for-one enhanced credit. Surely the solution is to educate the public, not to change the law to comport with beliefs that are based on a misunderstanding.

I see I'm out of time. Thank you very much.

[The Chair, Conservative, Ed Fast]

Thank you, all three of you, for that input.

We're going to start with Ms. Jennings, for five minutes.

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

Thank you, Chair.

Commissioner Head, on the back page of your speaking notes you state that:

With respect to the impact of C-25 on the Correctional Service of Canada, it is important to note that while additional offenders would now receive a federal sentence and come to CSC, the majority of offenders impacted [by Bill C-25] would be those that would have already received a federal sentence. However, they would now receive a longer sentence and therefore stay longer in our system.

Further down that page you talk about accommodation challenges. Mr. Sapers already testified that close to 10% of the current inmate population is already double-bunked.

I just saw a two-hour documentary on the prison system last night that came out of the United States on how they're double- and triple-bunked there and have been for 10 years and more, the rate of violence, the increase of violence within the correctional services there, and the increased rate of recidivism as a result of not having access to any kind of treatment, any kind of core programming, etc. We're being told by the ombudsman that already CSC is facing accommodation challenges, human resources challenges, and programming challenges, and now you're telling us that the impact of Bill C-25 will be to increase those challenges.

How much more money has the federal government allotted to CSC in order to create those permanent accommodations, in order to fill those vacant staffing positions, the medical health officers, within CSC in order to provide the core programming, the treatment programming, the substance abuse programming? How much more money have you received from this government in order to meet the challenges that you already have now and the increased challenges that Bill C-25 will represent to CSC?

[Don Head]

I'll address the double-bunking issue first. The statistic that Mr. Sapers shared with you is the approved level of double-bunking. That doesn't mean that every single day of the year we're double-bunking 10% of the offender population.

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

I'm going to stop you right there. According to your own directive, single accommodation is what is supposed to be the norm. So if there's any double-bunking, even if it's two people in one cell across Canada, that goes against your own directive. Is that right?

[Don Head]

Yes, but at the same time we have to address the pressures of inmates that are admitted to us. We absolutely do not control the number of inmates that flow to us from the courts. So we have to use the available cells that are there, plus take whatever measures or steps to address any increases that occur during the year, and there are different increases across the country. They're regional.

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

And the extra money?

[Don Head]

Yes, I'll get to that.

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

He's going to cut you off.