Justice Committee on Oct. 18th, 2011

[Dr. Anthony Doob]

Yes.

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

Where did you practise law?

[Dr. Anthony Doob]

I'm not a lawyer.

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

Okay.

Have you ever spent time on a parole board?

[Dr. Anthony Doob]

No.

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

Have you ever spent time with victims in victim outreach programs or things of that nature?

[Dr. Anthony Doob]

I've not worked in such a capacity, no.

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

Okay.

Have you ever been a victim of a violent crime?

[Dr. Anthony Doob]

I think probably we all have, yes.

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

What kind of violent crime, sir?

[Dr. Anthony Doob]

Well, I was a kid once, right? I think most of us have been victims and have been in fights.

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

I understand. So your expertise is based upon research of psychology. Would that be fair to say?

[Dr. Anthony Doob]

I'm a criminologist.

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

Okay, but psychology is your expertise by degree?

[Dr. Anthony Doob]

I received a PhD in social psychology.

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

Yes.

I noticed one of your publications, entitled “Mandatory Minimum Sentences: Law and Policy”. I did have an opportunity to read it, and it was an interesting read, for sure. I noticed that you referred to many things within the footnotes, in particular, in 1952, a royal commission on the revision of the Criminal Code, a 1952 Senate official report of debates, a 1987 Canadian Sentencing Commission, and it goes on. In fact, in your footnote 28--and I quote--it states:

“'Three Strikes and You're Out': The Impact of California's New Mandatory Sentencing Law on Serious Crime Rates” (1997)”.... In one of the ten California locations the decrease in index crime coincided with the implementation of the three-strikes law. There seems to be no reasonable explanation for the difference between this county (Anaheim) and the other ten.

You then go on further to say—and I think it must be a joke—“There was no suggestion that it was related to the fact that Disneyland is located in Anaheim.”

I went through the footnotes and could not find anything to support your position on this particular paper. I was wondering if there was something more than the footnotes that I may be directed to in regard to your expertise in this particular matter and “The Political Attractiveness of Mandatory Minimum Sentences”, in which, in conclusion, you indicated that “it is clear that the policy process must take into account the various functions”--

[The Chair, Conservative, Dave MacKenzie]

Mr. Jean, you're out of time.

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

That will end this session. We had one hour set aside.

I want to thank the panel.

Mr. Harris, I didn't set the rules. The committee set the rules and we're following them.

We'll take a two-minute adjournment so we can get a new panel set up.

[The Chair, Conservative, Dave MacKenzie]

We'll call the second session to order.

Just so the panel members are very clear, and I think the clerk has made it clear, there's an opportunity for a five-minute opening. Each side gets five minutes at a time here. We are very tight for time, so I will let you know when you're at five minutes and we'll end there.

If you wish to start, Mr. Oscapella....

[Eugene Oscapella, Part-time Professor, Department of Criminology, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

I'm here to speak about the parts of Bill C-10 introducing mandatory minimum penalties for many drug offences, and generally ramping up the so-called war on drugs. I have worked in the criminal justice and drug policy fields for more than three decades. I didn't think it possible that Canada could enact drug laws that were worse than those in place over that period, but the current government has proved me wrong. Bill C-10 is worse, much worse.

Let's not forget what we're talking about here. It's about locking our fellow human beings, many of them non-violent, in cages. This is the 21st century. Surely there are better ways to resolve many societal problems than by locking our fellow citizens in cages.

If Conrad Black and I were to meet, probably we'd not agree on many things, but he spent some time in Florida prisons and he learned something. He said he saw at close range the failure of the U.S. war on drugs: absurd sentences; a trillion dollars has been spent; a million easily replaceable small fry are in prison; and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

Beyond our current drug laws, Bill C-10 is sure to be ineffectual. Not only are the provisions sure to be ineffectual, they are certain to be counterproductive. The Harper government says these laws will help solve the problem of drugs in our society. In fact, they will do the opposite: they will make the drug problem far worse than it would be if alternative regulatory and health-based measures were applied to the drug problem. The amendments brought by Bill C-10 will foster more crime, more violence, and more dysfunction, rather than less.

This government has ample evidence of the futility of its intended approach from experiences in Canada, the United States, and around the world. If you don't want to believe me, let's listen to the late Milton Friedman, Nobel Prize-winning and conservative economist. In 1989 he addressed a letter pleading for the end of the U.S. war on drugs to William Bennett, who was then the head of the U.S. drug policy in the U.S. White House. He said:

In Oliver Cromwell's eloquent words, "I beseech you, in the bowels of Christ, think it possible you may be mistaken" about the course you and President Bush urge us to adopt to fight drugs. The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse.... Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society....

If you don't want to listen to Milton Friedman, perhaps you might want to pay attention to the 2002 report of the Senate Special Committee on Illegal Drugs, chaired by Conservative Senator Pierre Claude Nolin. The report was unanimously adopted by the members of the committee. What did it say? It said:

...the main social costs of cannabis are a result of public policy choices, primarily its continued criminalization. [...] It is time to recognize what is patently obvious: our policies have been ineffective, because they are poor policies. [...] The prohibition of cannabis does not bring about the desired reduction in cannabis consumption or problematic use.

If the government doesn't want to listen to its own Conservative senator and his committee, perhaps you might want to pay attention to the United Nations Office on Drugs and Crime, which said the following in 2009:

Global drug control efforts have had a dramatic unintended consequence: a criminal black market of staggering proportions. Organized crime is a threat to security. Criminal organizations have the power to destabilize society and governments. The illicit drug business is worth billions of dollars a year, part of which is used to corrupt government officials and to poison economies.

By the way, the reason this is happening, Mr. Chairman, is because of drug prohibition. The use of the criminal law to prohibit drugs is creating a fantastically lucrative black market.

If you don't want to pay attention to the 2009 statement of the United Nations Office on Drugs and Crime, you might look at the 2011 report of the Global Commission on Drug Policy. Its honorary chair was George Shultz, the former U.S. Secretary of State. Its members included Kofi Annan, former UN Secretary General; Louise Arbour, former Supreme Court of Canada Justice and the former UN High Commissioner for Human Rights; Paul Volcker, the former chair of the U.S. Federal Reserve; Sir Richard Branson; and four former presidents of Switzerland, Colombia, Brazil, and Mexico. Former U.S. President Jimmy Carter has endorsed the report.

What did the report say? It said:

The global war on drugs has failed with devastating consequences for individuals and societies around the world. End the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others. Challenge rather than reinforce common misconceptions about drug markets.

[The Chair, Conservative, Dave MacKenzie]

Your time is up, sorry.

We'll hear from Mr. Head.

[Don Head, Commissioner, Correctional Service of Canada]

Good morning, Mr. Chair and members of the committee. I am pleased to have the opportunity to appear before you today to discuss proposed Bill C-10 and its anticipated effects on the Correctional Service of Canada.

As you are aware, Bill C-10 comprises a number of bills that were introduced in the previous session of Parliament. As I expect the greatest impact on my organization's operations will come from the elements of Bill C-10 related to former Bill C-39, I will focus my remarks on this area. However, I will respond to any questions committee members may have regarding other elements of Bill C-10.

In 2007 the external CSC review panel released its final report, “A Road Map to Strengthening Public Safety”. This report contained 109 recommendations on how CSC could transform its operations and administration to better manage a complex and diverse offender population, thereby producing enhanced public safety results for Canadians.

Over the past four years, CSC has been using this report as the basis of our transformation agenda. Bill C-10 would advance this agenda further, with key components related to information sharing with victims, offender accountability, offender discipline, and electronic monitoring, among others.

The proposed legislation aims to strengthen principles of the Corrections and Conditional Release Act to emphasize offender accountability and responsibility.

If Bill C-10 is passed, the Corrections and Conditional Release Act would now place a greater emphasis on offenders to follow and adhere to their correctional plans, which form the foundation of all programming, education, employment skills development, and decisions related to transfer and conditional release.

As well, Mr. Chair, Bill C-10 will give me, as the Commissioner of the Correctional Service of Canada, the opportunity to establish an incentive-based approach to dealing with offenders who have the capacity to follow their correctional plans but choose not to do so during their terms of incarceration. In addition, the bill places additional emphasis on the role and the rights of victims throughout the correctional process. It expands the definition of victims and the types of information that can be shared with them.

Finally, I'd like to note that Bill C-10 would enshrine in legislation CSC's authority to impose electronic monitoring under certain circumstances. These could include monitoring an offender's compliance with the terms of release, such as restricted access to a person or place.

Mr. Chair, as you're aware, last week the ministers of public safety and justice tabled a document indicating that the federal cost of Bill C-10 will be $78.6 million over five years. CSC has estimated that we will require approximately $34 million in new funding to manage the impacts of the proposed legislation. This figure comprises operational costs associated with the projected increase in our offender population arising from mandatory minimum sentences for sexual offences against children and for serious drug crimes.

In addition to the costs associated with housing more offenders, on the operational side we will see an ongoing reliance on double-bunking. This is having a particular impact in our women-offender institutions and in those in the prairies and Ontario regions where we are facing population pressures. I should note that there are also financial implications for the Correctional Service of Canada related to the enhanced provision for sharing information with victims and to the implementation of electronic monitoring. However, we will be absorbing these costs internally.

Mr. Chair, the Correctional Service of Canada has transformed its operations over the past few years to respond to a complex and diverse offender population and to significant changes in the criminal justice system. We're continuously monitoring the impact of these changes on our organization and on our offender population. We are making adjustments as needed.

I am confident that CSC, as a modern, adaptable, world-class correctional system, will implement the provisions of Bill C-10. It will create safer communities for all Canadians while it addresses the needs of victims and provides the most appropriate opportunities for offenders.

Thank you, Mr. Chair. I welcome any questions the committee may have.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Head.

We'll go to Ms. Latimer.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much for the opportunity to be here.

The position of the John Howard Society of Canada is that Bill C-10 will not make streets or communities safer, despite the huge outlay of taxpayers' money. It will instead make communities less safe while eroding rights and principles of justice.

Given the time constraints, I will reaffirm comments the John Howard Societies have made on previous components of the bill that were before committee and focus my remarks on the new provisions and the cumulative impacts of the bill.

The merging of ideologically inconsistent bills into a single omnibus bill provides a philosophically incoherent response to serious social issues. Some of these problems include the following. Adult criminal justice principles are inappropriately applied in the youth justice system. Sentencing principles are incongruously applied to correctional management and parole decisions, resulting in a re-punishing of the offender rather than a scrupulous execution of the court-imposed sentence. Discretion is improperly limited for sentencing judges, preventing proportionate sentences, and augmented for ministers, crown attorneys, and officials dealing with numerous matters. Personal accountability and state paternalism are blended such that a 15-year-old is deemed too young to consent to sexual activity and yet is held criminally liable if he lacks the maturity of judgment to detect the absence of consent in another.

There are two specific provisions that have not been before the committee in terms of the youth justice amendments, both of which I think warrant some serious consideration because of their charter implications. The introduction of the criterion of the public's confidence in the administration of justice as grounds for the detention of youth prior to trial may violate rights to reasonable bail. And the removal of the “beyond a reasonable doubt” standard for young persons to receive an adult sentence is contrary to the Supreme Court decision in R. v. D.B. and thus may violate section 7 charter rights.

With respect to Bill C-39, which has not been before committee and therefore has not undergone a serious analysis, I endorse the comments that were made by Professor Jackson. We thoroughly endorse the response to the corrections road map made by Michael Jackson and Graham Stewart, called "A Flawed Compass”, and believe that the concerted and deliberate law reform process that led to the Corrections and Conditional Release Act some 20 years ago, and which is emulated and praised around the world, needs to have some serious consideration and attention before decisions and changes are made.

The reason this bill will not make communities safer....

Given the evidence that increased penalties do not deter crime and the omission of crime prevention programs from this bill, the only way it could achieve its policy objectives of making communities safer is through successful rehabilitation and community reintegration. But Bill C-10 actually impedes supervised and supported reintegration by limiting the transfer of Canadians back to Canada until after they've completed their sentences and are thus deported, limiting pardons, and reducing access to conditional sentences.

This bill will also exacerbate the current crisis of crowding in provincial, territorial, and federal custody by massively increasing the numbers in custody through, one, the imposition of mandatory minimum sentences; two, restrictions on community-based sentences; and three, further restrictions on release for those who are in custody. It is urgent to reduce rather than increase prison overcrowding in order to ensure the safety of inmates and corrections staff, as well as for effective corrections and rehabilitation.

If nothing is done and the courts find, as they already have in the United States, that our current levels of crowding amount to cruel and unusual punishment, offenders will be released or not sent to custody, and there is no guarantee it will be the less risky offenders who remain in the community. If this occurs, the ultimate impact of the bill will certainly be to make the streets and communities less safe.

We are heartened by Minister Toews' response to the committee that the National Parole Board could safeguard against overcrowding, and we look forward to the amendments to Bill C-10 that would achieve this objective, although further measures would be needed to address the crisis in provincial prisons.

In conclusion, we recommend that the bill not be passed in its present form, since the evidence shows it will not achieve its stated purpose. If the bill is passed, then given the current crisis of prison crowding in Canada, we urge that the bill not be proclaimed in force until provinces, territories, and the federal government can assure Parliament that the expected increase in offenders can be accommodated without exceeding 100% capacity of the prisons.

We hope the Minister of Justice will seriously consider his statutory obligation to ensure that all legislative proposals are charter-compliant before approving a bill that so seriously threatens to create a degree of prison overcrowding that would be cruel and unusual under section 12 of the charter.

Thank you very much.