Justice Committee on Nov. 22nd, 2011

[The Chair, Conservative, Dave MacKenzie]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The two things that I perceive in amendment L-25 are, first, the addition of the word “privileges”, and second, the deletion of the word “lawfully”. If I am reading that correctly, I see no reason why anyone who is in custody should indeed be accorded privileges. I agree with what Mr. Cotler said about rights, but we get into difficulty if we begin to fuse rights and privileges into one concept. Moreover, I see no reason why we would remove the word “lawfully” from the government amendment.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Woodworth.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Mr. Cotler's amendment, L-25, underscores an important principle. These people are still members of society, even if they are incarcerated for committing a crime. The purpose of incarceration is twofold: the punishment of the offender, and the undergoing of a process that will lead to rehabilitation. There are other aspects of the bill that talk about rehabilitative efforts. When a person is released he is released in the hope that he would be a law-abiding citizen who can function and contribute to society. The way to do that is to ensure that society continues to respect a citizen's rights and that they don't end, as Mr. Cotler said, at the prison door.

In learning about the law in the first instance, one of the notions that you come across is that the treatment of people who may appear to be the least desirable is a reliable measure of a society. What basic rights do you have if you're not on the right side of the law? What do you have left that is the mark of your society? How prisoners are treated, how individuals who are before the courts are treated, is important as a measure of how civilized a society we are. You don't treat them as people who are eminently entitled. If you are incarcerated, you are incarcerated for a reason. You are separated from society. But you don't lose your human rights. You don't cease to be capable of exercising your rights as an individual.

This is stated in a more positive way, but the notion here is a good one: we don't treat prisoners or inmates as the scum of the earth; we treat them as persons who we hope are able to be rehabilitated. Even someone sentenced to a long sentence has human rights, and this recognizes that. I think it is appropriate that we do this.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

(Amendment negatived)

(Clause 54 agreed to)

(On clause 55)

On clause 55, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I will speak briefly in favour of this clause.

This clause relates to the importance of a correctional plan to be developed as soon as is practicable after reception of a prisoner into the penitentiary. This emphasizes the importance of a plan to achieve rehabilitation during the time they're in prison. I note the maintenance of the plan under proposed subsection 15.1(2) of this clause:

The plan is to be maintained in consultation with the offender in order to ensure that they receive the most effective programs at the appropriate time in their sentence to rehabilitate them and prepare them for reintegration into the community, on release, as a law-abiding citizen.

We support that, and it does provide encouragement for inmates and offenders to see that there is an opportunity for rehabilitation and a life after the sentence. We would certainly not want to see these plans turn into something that could be abused, but if properly administered these plans could be very effective in seeking a safer society by ensuring that offenders, when released, are in a better position to be integrated into society.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

(Clauses 55 and 56 agreed to)

(On clause 57)

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

We support these provisions. Clause 57 provides a means of knowledge about the name and location where a sentence is being served, and if there's a transfer taking place the reasons for that, or if there are disciplinary offences that the offender has committed, that knowledge is available to the victim of that particular offender.

I think that's a useful addition in terms of the victim's rights. We heard so much about that during our hearings, but we didn't hear much in the way of detail. This is one of the details we support, that victims will have an opportunity, at least—not all want to follow that—if there's a particular reason, and a particular concern about where an offender is, or whether they're being transferred, and for what reasons, then the victims would have a right to that information and to that knowledge. I think that's a positive step.

Once again, I'd like the record to show, contrary to the rhetoric that we hear, that there is a concern that victims be treated properly in our justice and corrections system. This is an example of a positive step in that regard, and we're here to support that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I just wanted to make a brief comment that what this also shows is that—contrary to the rhetoric from the opposition—this government is not only concerned with victims' rights, but with rehabilitation and reintegration; and we are not immune to the benefits of the processes on both sides.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 57 agreed to)

(On clause 58)

Mr. Cotler, I believe it is your amendment L-26.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman.

The purpose of this amendment again relates to the rights within the correction system and seeks to maintain the words that are currently there with regard to “the least restrictive environment”. This is not just an operational principle as to how people should be conducting themselves within the penitentiary system. It is a constitutional principle so as to frame the principle and operative guidelines around the notion of the least restrictive measures.

That is yet again, Mr. Chairman, the purpose of this amendment. It is also based on the witness testimony that we've received. Mr. Harris referenced in particular the witness testimony of Michael Jackson, who has studied this for some 30 years now.

The whole point here is not to alter a situation where we have a constitutional principle that comports with all that we affirm with respect to the Charter of Rights and the retention of those rights within the penitentiary system.

I made that point before, Mr. Chairman. I need not belabour it. That is the purpose of the amendment: to reaffirm both the constitutional and operative principle of least restrictive measures.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I'm happy that the government proposal in Bill C-10 maintains the requirement that only restrictions that are necessary should be permitted. I'm certain that this is something that would be a constitutional requirement.

However, once we determine that a restriction is necessary, I believe it is unnecessary to parse further whether there may be a less restrictive necessary condition. I think it can create a lot of difficulty for corrections people to try to second-guess what might be the least restrictive of necessary conditions. The necessity is a real requirement, in my view, and that is maintained in the government proposal.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Woodworth.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Once again, this is a point of significant disagreement, I believe, between our party and the government. We would support Mr. Cotler's amendment, and we do so for an important reason.

As was pointed out earlier, and on another section, Mr. Cotler reiterated that there are constitutional principles involved here. And Professor Jackson, as a law professor for very many years, who studied this for 30 years, is very familiar with the constitutional history of the phrase. And there's not simply wordsmithing here, choosing one word over another. In the legal context the words have significant meaning, particularly where they've been judicially reflected upon and assessed over the years. The words “least restrictive” and “necessary” have two entirely different approaches.

“Least restrictive” is something that can be measured against something else; “necessary” is very subjective. What one person may consider necessary, another person may not, and “least restrictive” is something that can be actually analyzed and applied, because alternatives can be considered when adjudicating whether or not the least restrictive measure is applied.

To many people, that may seem to be just a lot of words, but the reality is that courts actually do make decisions based on the choice of wordings that are used. For example, if a prisoner or an offender incarcerated in a prison has a right of appeal.... Once you're in prison--we talked a moment ago about rights--you should have the right to ensure that the terms of your imprisonment or the terms of your confinement are in accordance with law. If you're put in the wrong place because it suits somebody to put you there, and all they have to say is that this is necessary, then taking into account our circumstances at facilities, if all they have to say is they think it's necessary, and nobody can judge that, then you really don't have any right to appeal or to seek a change in that decision.

If you have language that is actually subject to adjudication and has a body of precedent already set out, then you actually have some right to seek an alternative decision or to challenge a decision that's been made.

There's nothing easy about this. There's nothing easy about running a correctional service. But despite that, there ought to be rules that can be adjudicated, if necessary, if there are perceived difficulties with a particular situation.

Let's take the sad case of Ashley Smith, who was transferred many times. In fact, some have suggested that she was transferred because she was a problem. She had to transfer somewhere else. It's been suggested by some advocating on her behalf that she was transferred to avoid her having an opportunity to challenge a particular form of confinement because she wasn't there long enough for such a challenge to go through.

It's an extremely sad case, but an historic example of how a person who is incarcerated can lose their rights to adjudicate their circumstances, to have some person outside the institution have a look at what's gone on and in fact tell the correction services where they have gone wrong, if they have in a particular case.

If you say “necessary”, well, if you only have certain facilities, they say, “Well, it's necessary to do this just because we don't have a proper facility in this province.”

If “least restrictive” is there, it may be—it may be—that the correctional services might be required to provide a less restrictive environment in order to be consistent with the rights of an offender. Or it might be necessary to have a least restrictive environment established to ensure that people like Ashley Smith, with mental health problems, are not subject to conditions that would exacerbate and make worse their mental conditions, to the point at which they cannot operate within the system and their lives, as in the case of Ashley Smith, are placed at risk.

These are fundamental questions. It's not simply a choice of words. These are fundamental questions, and when we have such distinguished academic legal scholars as Professor Jackson come before us and say.... I recall the degree of frustration in his voice, pleading to be listened to, saying that this is an important principle. He said if those three words are there, at least those three words are there, the individuals will have some constitutional protection spelled out.

We shouldn't be doing things here where someone will have to decide at the next opportunity, the next government, to have to fix all these things, these problems that have been created, these rights that were diminished and watered down and ignored. These are fundamental aspects of our legal system. The Charter of Rights, by itself, only has meaning when it's being interpreted and followed and the spirit is being contained in other aspects of our law. According to our expert witness, Professor Jackson, and according to Howard Sapers, the corrections ombudsman, this is a phrase that has meaning, that's enforceable, that's a standard by which the behaviour and the activities of a correction service can be measured and can be praised or in some cases criticized for the purposes of making things better.

I wanted to speak strongly on this point. It's an important constitutional principle. It's consistent with the Charter of Rights and Freedoms and a phrase that we believe ought to stay in the law.

[The Chair, Conservative, Dave MacKenzie]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I agree with Mr. Harris in relation to some of what he said. I think he's right that judges do interpret every word, and I think the words are significant in this particular case.

I listened to Mr. Jackson's testimony as well, twice, and bluntly, I was not persuaded. There's somewhere that we, as legislators, have to draw the line. I think the section that is reflected in the government's own words is good, very good. I believe, bluntly, that the least restrictive method is utilized in either--I can't remember exactly, I was trying to think of where--the Youth Criminal Justice Act, the Young Offenders Act, or bail reviews, or, indeed, conditional sentences. I know that the amount of case law that has been generated by those words, in relation to “least restrictive” is tremendous. It has been ten years since I practised, so I don't remember exactly where I found that, but I do remember that those words utilized in other situations are tremendous.

I bluntly think the line should be drawn somewhere else. So I will respectfully disagree with my colleague Mr. Harris. I think the government's wording is good in the circumstances, and “least restrictive” I do not believe is appropriate in these particular circumstances.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Jean.

So amendment—

[Jack Harris, NDP, St. John's East, NL]

Briefly, in rebuttal, I agree that there's been a great deal of litigation concerning that phrase. To me, that's a sign that it's a valuable phrase. Litigation always has winners and losers. The amount of litigation shows that it's a phrase people can use to ensure that proper and appropriate measures are being taken.

I take that as a good thing, because that phrase then has meaning, a meaning that's been interpreted by the courts from time to time, and then it's easier of application. If we start changing the wording, well, you're going to start a whole new round of litigation, which may or may not lead somewhere. At least with the phrase that we have, not only do we have a constitutional principle but we have a body of precedent that can be used to judge a particular circumstance without having to go to court and re-litigate.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Chairman, this is one of those unusual things where we're asking that the present law be maintained. We're not asking for something new to be put in. The notion of “least restrictive measures” is already there. It has affirmed itself over time in the jurisprudence and the like.

What we are saying is that this is a principle, and a constitutional principle, that is not only consistent with rights protection within the corrections system, as I mentioned, but one consistent with the jurisprudence that has interpreted this notion over time. In effect, it is Bill C-10 that purports to remove it. That, in effect, is the amendment. We are, in a sense, saying let's keep the principle that has validated itself over time and ensure that rights remain within the correctional system as constitutionally secure.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

(Amendment negatived)

(Clauses 58 and 59 agreed to)

(On clause 60)

We are on NDP amendment 25.

[Jack Harris, NDP, St. John's East, NL]

These are all considered moved, are they?

[The Chair, Conservative, Dave MacKenzie]

Well, I think I have an issue here, so you'll have to move your amendment.