Evidence of meeting #13 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
9:45 a.m.
Conservative
9:45 a.m.
NDP
Jack Harris NDP St. John's East, NL
Again, this is a coordinating amendment for clause 44, so we support that as well.
(Clauses 46 and 47 agreed to)
9:45 a.m.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
I notice that there are no amendments to clauses 48 through 53, unless I'm incorrect on that. Could we not deal with them as we suggested we would to expedite any clauses without any obviously conflicting interests?
9:45 a.m.
NDP
9:45 a.m.
NDP
Jack Harris NDP St. John's East, NL
Having had a chance to look at it, I thank Madam Kane for her suggestion that this is related to the amendments to the Criminal Records Act related to the new offences of making sexually explicit material available to a child under 16 or under 18 or under 14 for the purposes of the listed offences under the Criminal Records Act. We think that's appropriate, and we'll support it.
9:45 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Right.
(Clauses 49 to 51 inclusive agreed to)
(On clause 52)
On clause 52, Mr. Harris.
9:45 a.m.
NDP
Jack Harris NDP St. John's East, NL
I want to speak briefly, Chair, in favour of clause 52. This is a clause that expands the definition of “victim” in the Corrections and Conditional Release Act. This is important with regard to the role that victims play in the corrections system and their right to participate in hearings, for example, in terms of the parole process, and with regard to their right to have notification of the whereabouts of the offender, as well as various other rights. Important changes made in clause 52 add those.
We support that, because it adds to “relative” a person who has de facto in law or in fact custody or who is responsible for the care or support of a dependant of that person. It expands it to make sure that virtually all victims would have someone who could assist them in ensuring that they have information and the proper notice that victims in general are entitled to. So we support the expanding of that definition.
(Clauses 52 and 53 agreed to)
(On clause 54)
9:50 a.m.
Conservative
The Chair Conservative Dave MacKenzie
On clause 54, Mr. Cotler, you have an amendment, but the amendment is actually in the section already.
In clause 54, proposed section 3.1 says:
The protection of society is the paramount consideration for the Service in the corrections process.
9:50 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Okay. Thank you, Mr. Cotler.
Now we have Liberal-24.
The Liberal-24 amendment is along the same lines as NDP-23 and NDP-24. Therefore, if Liberal-24 is adopted, NDP-23 and NDP-24 cannot be moved.
9:50 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
The whole approach here is that the service use measures that are consistent with the protection of society, staff members, and offenders and are limited to only what is necessary and proportionate to attain the purposes of this bill. It's basically for the purposes of overall protection of all the actors involved, as well as society as a whole.
9:50 a.m.
Conservative
9:50 a.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
NDP-23 is an amendment to proposed paragraph (c), which is similar to but more expansive than Mr. Cotler's amendment. It says:
the Service uses the least restrictive measures consistent with the protection of the public, staff members and offenders;
There was considerable discussion at committee when we heard the witnesses on this issue. Professor Michael Jackson, who's a long-time writer, thinker, and intervenor on matters related to the law and correctional services, gave a very compelling presentation, drawing on the work of the Supreme Court of Canada, and tying it in with the protections that are expounded in the Canadian Charter of Rights and Freedoms and the notion that in the correctional services once a person is incarcerated that is the sentence. The sentence is one of incarceration.
The notion of the “least restrictive measures that are available, consistent with the protection of the public, staff members and offenders” is one that's been recognized as a test that can be used by the courts. For example, Mr. Howard Sapers, the correctional ombudsman, also appeared before this committee. He supported the notion and the use of the term “least restrictive measures” as being consistent with a way to determine whether or not excessive force is used in a situation where someone is in prison.
Now, I don't think we have a society that's regressive enough to say that when someone is incarcerated they lose the protection and they lose all of their rights. The rights that they have still ought to be consistent with law and with the principle of law. The test that's been used, the measure that's been used in the past and recognized by the courts, has been this notion of “least restrictive measures”.
In other words, you can't go overboard in restricting an inmate of a penitentiary or an inmate of the Correctional Service; you have to use that degree of measured response and balance that ensures that you're doing what needs to be done, but you're not doing more. I strongly recall the intervention of Professor Jackson, who said if you added those three words, “least restrictive measures”, you would be doing a service to the interests of the rights of all inmates of penitentiaries.
Unfortunately, we've seen very, very sad cases. The one that comes to mind is that of Ashley Smith, who was a young child of age 14 when she was first incarcerated. I believe the initial reason for her charge was that she was apprehended for throwing crabapples at a postal worker and ended up under the youth detention act, and she never got out. She ended up dying in a penitentiary at age 19, after having gone through a whole series of reincarcerations and re-sentencings for offences that took place inside the penitentiary.
She had significant mental health issues that clearly were not or could not be dealt with within the system, and she was subject to great restraints throughout her incarceration. She interacted with the system in a very negative way. When you see an individual like that, who has almost no hope, the only hope that individual will have, in some circumstances, is the protection of the law.
The use of the least restrictive measures that are consistent with the protection of the public, staff members, and offenders encompasses all the needs. The provisions and principles set out there on the protection of the public are very important.
Staff and correctional services have a very difficult role to play, and they are at risk too. We understand that and commend them for their job and their role. We had them appear before us as well. They need to be protected as much as possible. There's also the protection of offenders, because these offenders can fall victim to each other. The people who are inside a corrections institute are not there because they are the nicest people in society. Some of them are very dangerous. Offenders need to be protected from other offenders as well.
There is a choice of wording here that's already in the law, but it has been taken out and replaced by other wording. We think it's important to continue this wording. It is something that can be used as a test to measure whether or not our prison service is doing a proper job. I know that the corrections ombudsman, Mr. Howard Sapers, who has appeared before this committee and other committees, including the public safety committee on a number of occasions, also testified that the wording in this phrase is extremely important. It establishes a standard that is measurable and not subjective. It has been interpreted by the court and can be interpreted in a proper way--objective measurement of whether or not the prison service is looking after the actual rights of everybody. The only right that prisoners in a penitentiary, the inmates, lose is the right to their freedom. They have to obey the rules, but they shouldn't be treated more severely than necessary to protect the public, staff members, and offenders.
So I think it's important that we retain that wording in our law. This amendment seeks to achieve that.
10 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Harris.
(Amendment negatived)
NDP-24 has exactly the same words as defeated L-24; therefore it cannot be moved.
10 a.m.
NDP
Jack Harris NDP St. John's East, NL
Ours was the same. That makes sense. That was our fallback position, and it was put in before we saw the Liberal amendment.
10 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
This is an attempt to reaffirm the importance of the principle of “least restrictive measures”. That was the purport of my amendment and Mr. Harris's amendment. It really goes to the question of the protection of human rights and human dignity.
The whole idea here is that the charter protections in this regard do not stop at the prison door. They apply within corrections facilities. That is the whole import of this amendment. That is the whole import of the amendment I proposed before, and it was defeated. It is the importance of maintaining within the legislative framework, as we now have, a constitutional principle, because that's what “least restrictive measures” is all about. It's a constitutional protective principle with respect to human rights within the corrections facilities. As the courts have made clear, the rights in this regard and the right to human dignity do not stop at the prison door. They are within prisons as well. That's the import of this amendment.
November 22nd, 2011 / 10 a.m.
Conservative
