Justice Committee on Nov. 22nd, 2011

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

Mr. Chair, on a point of order, I understand that Mr. Harris wants to talk about this, and obviously I have no difficulty. I'm only wondering if he could say at the outset whether he supports this clause, and if he doesn't, why he doesn't, so I can give due consideration to his points. He hasn't put forward an amendment to this clause or the next nine, so if he has not put amendments forward I assumed he supported it. But if he doesn't support it, I would appreciate it if he could confirm that he doesn't support it and why he doesn't support it. This is so I can understand and be persuaded accordingly.

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

That's hardly a point of order.

I think I did say at the outset that we're speaking to ones we're opposed to. If we were supportive of it, and had good reasons for supporting it, we might speak to it, but we'd be more inclined to group them if there were a series of them along the same lines.

No, my concerns here are that this follows on from clause 60. Clause 60 establishes this administrative segregation without any independent adjudicator, one of the consequences of which is clause 61, proposed section 37, which says that when you're in administrative segregation you have the same rights and conditions except for ones you can't enjoy because of limitations specific to the administrative segregation area.

So if there are no exercise possibilities, if there are no opportunities for—and I'm using a mundane example—watching television, listening to the radio, playing music, or whatever it is that might give a person some social replacement for the absence of people, then they don't get that if it's not there. There is no requirement to have reasonable conditions, no requirement to have so-called least restrictive, no requirement for an independent adjudicator who can talk about reasonable alternatives, or suggest that this situation, particular to this institution, or particular to this administrative segregation area, is unreasonable, and that reasonable alternatives exist and should be found. That's the problem I have with this particular provision.

It's one thing to set up an administrative segregation--and as you may have noticed, in principle we don't object to that. But you're going to say it's only based on the determination and the opinion of the administrative head, and then you say there can be limitations as to what can be enjoyed because of the limitations that are specific to the segregation area. Well, that basically says that if we have a certain particular inadequate area, because of the nature of the institution, or because of so much overcrowding because we've got so many prisoners now as a result of these laws that are being passed, the place is full to the nines, and we've created a new administrative segregated area, but we haven't gotten around to outfitting it yet, but you're stuck there anyway, because that's all we've got, well, that's perfectly legitimate. In fact, it's legitimized by this particular provision.

Mr. Chairman, I think this is unacceptable. You go down a road that starts off with just removing this “least restrictive”. We're just getting that out of there because that's been.... I don't know why, or you like “necessary” instead. Now, necessary also applies to the limitations of the area that are in that particular institution. Well, how many institutions do we have that have inadequate provisions for administrative segregation? What are the limitations we're talking about here? I've come up with a couple that I'm thinking of offhand, but I'm not an expert in corrections. But I do know, having been in a number of penitentiaries in this country in my work as a lawyer, that there's a great deal of variety and a great deal of disagreement about an appropriate level of an operation for a prison. Many of them are extremely old. Many of them don't have modern facilities.

It's all very well to say, “Well, you're in prison, too bad”, but we're talking here about a prison within a prison, an administrative segregation area that has further limitations that are....You've stated it in a positive way: it's called inmates' rights. They're the same rights and conditions, except those that aren't there. That's what it says--“limitations specific to the administrative segregation area” in a particular institution. Well, it's great to say you have rights if you have rights to everything except what you don't have because those limitations are specific to the administrative segregation area.

It's a use of words to deny the very rights that the section says it's designed to grant. I think that's inappropriate, and it follows from the decision to pass clause 60, which allows an institutional head to order the confinement to administrative segregation, period. I don't really see any limitation of time here. I don't see any limitation of time.

Administrative segregation can be permanent, as I read this. Maybe there's another section, and maybe Mr. Jean or somebody on the other side can point to the fact that there's a limitation here or there's a method for this administrative segregation to end. But I don't see any limitation, other than saying the inmate is to be released from administrative segregation at the earliest appropriate time. Well, that's great. Who decides what that is?

I know I'm jumping back to another clause, Mr. Chairman, but it's clause 60 that establishes the conditions. It says you're going to be deprived of these rights, essentially for as long as the administrative head considers it's appropriate to keep you in administrative segregation, but they'll let you out as early as it's appropriate to let you out.

Again, these words like “appropriate” and “necessary” are subjective in nature. They are not bound by this constitutionally recognized principle of “least restrictive”. That is a very important problem that we have with this. Clause 61 continues that level of restriction, which I'm afraid is very, very discriminatory against individuals in this situation and leaves them open to abuse or arbitrariness. It could lead to injustice inside our penitentiaries

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Harris.

Mr. Jean.

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

Nothing, sir.

(Clauses 61 and 62 agreed to)

(On clause 63)

[The Chair, Conservative, Dave MacKenzie]

On clause 63, Mr. Harris.

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

Thank you, Mr. Chair.

Clause 63 contains a provision that allows an order for restitution to be made in respect of any property damaged or destroyed as a result of an offence against the Corrections and Conditional Release Act. It also provides that there can be segregation from other inmates, with or without restrictions, on visits with family, friends, and other persons from outside the penitentiary, with a 30-day limit on it.

Someone recently wrote in the paper about how some of the provisions of this act, instead of modernizing our corrections system, actually bring it back to the 18th century, where some of the rules for prisoners included that they weren't allowed to have visits from family and friends, or from anyone outside the penitentiary. That this was—

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

On a point of order, I'm wondering if Mr. Harris is saying that the amendments actually make it more soft than it was before. In particular, it defines that restitution can be made in relation to property destroyed—and I'm certain he doesn't have any problem with that—but in the case of a serious disciplinarian offence, segregation from other inmates for a maximum of 30 days was exactly what it was before.

As a government, we now have placed the following words, “with or without restrictions on visits with family, friends, and other persons from outside the penitentiary”, which obviously gives the inmate more options while the segregation is going on. We've actually softened it, and I'm wondering if he sees that and applauds the government for that move.

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

I'm not applauding the government for it, because it allows for restrictions to be made on visits with family, friends, and other persons. There could be no restrictions on that, but also there could be restrictions on that. This is a new change to segregation for a period of 30 days. There was nothing there that said that you could restrict visits from anyone else during that period, and now there is. This is not a softening of the existing regulations.

In terms of restitution for damaged property, I'm not sure how someone who is inside a penitentiary can necessarily be exposed to restitution orders if they have no means of making restitution. It seems to me that this is another means, I presume, of saying that if someone is damaging.... I think one of the standard offences for inmates is damaging government property. If you trash a cell or act out in a manner that destroys a mattress or in another manner, you can be charged with an offence. But this also talks about restitution for property damaged or destroyed to a value.... I don't know what the values are. But it seems to me that someone who is in a penitentiary is not in a position to meet very much in the way of a restitution order. This would just cause further restrictions on a person's ability to rehabilitate.

Similarly, restricting visits from family again acts against the importance of maintaining contact, which contributes to the rehabilitation of the offender. To put in place a regime that says that you can use that denial of contact as a form of penalty offers another opportunity to avoid the necessity of contact with your family for the purposes of rehabilitation as well as the incentive associated with knowing that you can have a continued relationship with your family member in the hope of rejoining them, and rejoining society while you're at it.

Those are concerns I have about those particular clauses. Perhaps some of my colleagues would like to add to that.

[The Chair, Conservative, Dave MacKenzie]

We'll go to Ms. Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you, Mr. Chair.

I am opposed to this clause, as are all members of my party.

Basically, we also have to consider the effects that clauses like this might have on the mental health of inmates. Studies show that there are effects on the mental health of prisoners living in segregation for 30 days; they display more aggressive and unhealthy behaviour. So they will be more dangerous in the future. That is something we must think about.

Anyway, inmates in segregation can only receive visits in areas specifically set up for the purpose, where the visits go on behind glass and by telephone. The measures in place already restrict family visits. So why do we need to go further and abolish them completely? Once more, let me stress that this can have a psychological impact and adversely affect an inmate's chances of rehabilitation.

That greatly concerns me. In my view, it is unnecessary since measures are already in place to restrict visits to someone in segregation.

Finally, like my colleague, I see no administrative limit on this kind of segregation. How is the length of time determined? The clause restricts visits for a maximum of 30 days. But I am concerned about the mental health of the inmates and the negative behaviour that could result from segregation of that kind.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

I have just a brief comment, because I think the points have been made. But I do want to make some reference to this overall orientation with respect to segregation, the removal of the possibility of an independent adjudicator, the punitive approach rather than the possibility of a rehabilitative approach, and the disregard of the evidence we have about the importance of visits with loved ones and the like to help facilitate rehabilitation and lessen the incidence of criminal conduct both within the prison and on release afterwards. My concern is really with this whole approach being taken. I make this comment because it will apply to all of these provisions. As I say, it is more punitive than preventive. It is more incarcerative than rehabilitative, and regrettably, it reverses the evidentiary approach we have with regard to matters of this kind.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

(Clause 63 agreed to)

(On clause 64)

On clause 64, Mr. Harris.

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

Thank you, Chair.

Clause 64 is composed of two parts having to do with allowing the corrections service to impose a requirement that any offender who is on a “temporary absence, work release, parole, statutory release, or long-term supervision that restricts their…geographical area or requires them to be in a geographical area” wear a monitoring device. Also, there's a provision there that the offender “is to be given reasonable opportunities to make representations to the prescribed official in relation to the duration of the requirement”.

This is something new, and there are no requirements here other than that the demand may be made “in order to monitor their compliance with the condition of their temporary absence, work release, parole, statutory release…”. We know that statutory release is something that takes place automatically as a result of the nature of sentencing, so everybody ends up on statutory release. Sometimes people apply for parole and get that. The parole board could impose conditions, but this is allowing the corrections service itself to do that. That's something new.

I wonder if the word “may” here is actually going to lead to circumstances where, given the nature of technology, it's going to be ultimately required in every case, and that this is something, regardless of the nature of the offence, regardless of the propensity of the individual involved, regardless of circumstances....

What is the justification for this, I ask rhetorically? Why is this necessary and being made available for every single person, simply in order to monitor their compliance with a condition? It's a bit of a big-brother type of approach, rather than one that recognizes that these conditions of temporary release or temporary work releases or parole are part of the rehabilitative process, and depend on recognition by the service that these are privileges that are in the nature of a temporary absence, based on the condition that there's a rehabilitation plan—talked about earlier in this legislation—that is called for. There are, as Ms. Findlay pointed out earlier, some provisions here that support and emphasize rehabilitation.

My fear here is that this becomes another punitive approach that may come from a view that every single person who is subject to a sentence, of any kind, is going to have a monitoring device on them until the very last minute. There's an opportunity here to make representation, so I guess somebody can say “I want to make representation; I want to ask that I no longer be required to wear this bracelet”, or whatever the monitoring device happens to be.

There's obviously a significant stigma associated with that. It may become an automatic requirement in all circumstances, which would in this case be arbitrary and unnecessary. There doesn't appear to be any finding of necessity here. It ignores totally the notion we talked about earlier of the least restrictive method of dealing with prisoners. There's no notion of that there at all. It's just blanket approval of the service being permitted to make this demand on any person subject to a temporary absence, work release, or any other that requires a person, for example, not to leave a province. If someone is released to go to work, they're probably not permitted to take a bus to the nearest town.

This is designed to closely control individuals without any reference to it being necessary in order to meet the ends of justice. It's simply a further restriction placed on someone for what appears to be an arbitrary reason.

We would be opposed to that. Maybe some of my colleagues would like to add to my remarks. It's something that we oppose.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 64 agreed to)

(On clause 65)

On clause 65, Mr. Harris.

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

I'm not going to go into great detail on this. I've looked at this very carefully. It seems to me that it's authorizing a warrantless search of any vehicles. It uses the words “at the penitentiary”. I'm assuming this means that for any vehicle that's parked in a parking lot associated with the penitentiary, the institutional head can issue, in effect, their own form of search warrant without obtaining one through the courts, and that every vehicle on the premises can be searched in order to locate and seize contraband or other evidence that's available. If there's a real circumstance there, search warrants from the appropriate authorities are more and more readily available. As those who practise law will know, they can be obtained by telephone if necessary. They can be authorized by telephone. There's appropriate and significant provision already in the law for this.

The Charter of Rights and Freedoms makes an important provision for the freedom from unreasonable search and seizure. Is it reasonable, I ask rhetorically, for someone who happens to have a vehicle in the parking lot of a penitentiary to have that vehicle subject to search by the head of a correctional facility without a warrant? That's something that goes beyond, in our view, what's required.

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

I want to say very briefly that I think all members here, and most people who are involved in the justice system in Canada, recognize that there's a significant drug problem in our penitentiaries. I would suggest this clause goes to that issue.

Indeed, I would say to Mr. Harris, I do understand the situation he's discussing. However, they do not have to enter the penitentiary grounds. Once they enter the penitentiary grounds, it is a privilege to be there, and it is not a right. It is a privilege to drive a vehicle in this country, not a right. As a result of that, this is a very reasonable clause, because we have to look at the long-term ramifications of drug use and the rampant necessity of drug use, and in fact at organized crime itself within these penitentiaries. So I think this goes to the very heart of it.

I'm surprised, if he does have an objection to this, that he didn't propose an amendment, as well as in the other five clauses that he has discussed and opposed but not proposed a relevant amendment. That's why this goes to that point, and I think it's a very necessary thing in our penitentiary system today.

[The Chair, Conservative, Dave MacKenzie]

Madam Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

I would like to reply quickly to what Mr. Jean said. We are aware that there is a problem, but that does not automatically mean that we have to go beyond what the law already allows. We see no need to search the vehicles of people who may be perfectly innocent without a warrant. As my colleague pointed out, correctional officers can apply to a court for a warrant.

We feel that provisions of the act must be in place to prevent abuse of this kind. Otherwise, any perfectly innocent person could be searched, and, in a way, that would be a violation of their right to privacy.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 65 agreed to)

(On clause 66)

We are on clause 66.

Mr. Harris.

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

Just for the record and so that Mr. Jean's ears will be properly attenuated to my remarks, I want to speak in favour of this particular amendment, because it does speak to rehabilitation.

One of the very sad aspects of our prison system is that the aboriginal population is significantly over-represented in our prisons. I think perhaps six or seven times, if not more, of their percentage of the population are in the prisons. It may actually be higher than that in some provinces where aboriginal people are incarcerated. Their rehabilitation is particularly spoken to here in proposed section 84:

If an inmate expresses an interest in being released into an aboriginal community, the Service shall, with the inmate’s consent, give the aboriginal community

(a) adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and

(b) an opportunity to propose a plan for the inmate’s release and integration into that community.

This is an improvement to the existing law, and it allows for the aboriginal community to play a role in assisting the reintegration of that individual into the community. I hope—and I just hope, because I can't propose any amendments that would spend money, as I've just found out, at least in relation to the proposal for an independent board—I hope that resources will be provided to assist aboriginal communities in playing a positive role in this integration process. It's extremely important that we try to support aboriginal people who have to endure the conditions of incarceration as part of their punishment, I'm not denying that, and in addition also have to endure the cultural community dislocation that occurs when they are in a correction facility, sometimes for lengthy periods of time.

I do support this. We support this as a party. We think significant extra efforts ought to be made to assist aboriginal people to reintegrate into their community. That may require more than just a plan as proposed here. It may require significant resources. I would encourage the government when considering the implementation of clause 66 of this bill to consider programs and resources that might be needed to make this more effective.

If aboriginal people are able to return and be integrated into their community and associate with other members of that community in a plan that's considered by the community itself, with the elders and the groups within the community, their success in reintegration is going to be enhanced.

Those would be my comments, Chair. Perhaps some of my colleagues would like to express themselves on this as well.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 66 agreed to)

I have one little correction. The agenda says this is televised. This meeting is not televised. There was an error in that.

Just using a second of the chair's time, going back to clause 65, I can appreciate that most of the committee members have never obtained a search warrant. I can tell you it's not simple.

We are on clause 67.

(Clause 67 agreed to)

(On clause 68)

On clause 68, Mr. Harris.

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

I'd like to speak in favour of it.

I'm disappointed to hear that news, Mr. Chair. We had a meeting the other day, which was televised, and all we talked about was the failure of the government to have a proper debate so that the public could understand better what was going on. I'm shocked to learn that we have moved to a room that either doesn't offer television or.... So we have gone from a situation in which the public had access to the proceedings of this committee to a situation in which they don't have it.

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris, with all due respect, the rooms for televising have been taken over...or at least one of them has been taken over by the Auditor General for a lock-down today. We had no access to it. It's not by choice of the clerk or the chair or anyone else. It's simply that this is the only available room for us.

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

Chair, not to diminish the significance of the people listening right now, I would like to say that they can still listen; they just can't see all our motions with our hands and feet and all the rest. So certainly people are listening, and I'm sure they're catching on to every word that all of us say.