I was told to make some opening statements, and then the committee members might have questions.
I'll first explain my experience with electronic monitoring. I have represented three clients who have been subjected to electronic monitoring in the immigration context. Two were cases involving national security, and in one the person was alleged to have been involved with a street gang a number of years previously and not at the current time. The men were put on electronic monitoring, along with other conditions.
In the two national security cases I was involved in with electronic monitoring, it has continued from the spring of 2007 to the present time, so they've been on GPS bracelets for about five years. The man who was subject to it in the immigration removal context for criminality was on it for two-plus years.
My experience has been such that I would never recommend it, except on a short-term, fixed basis for individuals where it was the only alternative to continue detention in the immigration context. I think it can be a useful tool in some instances, but there has to be a limited time for it. When people are on it indefinitely, it becomes a cruel measure, particularly when it's in conjunction with other measures, such as house arrest. In some ways I think it's more cruel than keeping people in detention, because they're out, and if they're under house arrest along with the GPS bracelet, they are detained within their own homes. Their jailers become their family and this faceless person who's watching them on a GPS screen somewhere.
It can be useful in some instances, but you really have to think about why it would be needed. For instance, with kids who are alleged to be involved with street gangs, where they're bailed out, or even in the immigration context, where they're facing removal, putting a GPS on them for a while rather than detaining them, and subjecting them to a curfew would be useful. You would know if they were home by 11 o'clock because of the GPS, if you have an 11 o'clock curfew on them. In that case there's a concern that they may consort with their colleagues and other kids in the evening and engage in crime. There's a reason for it to be used in a specific limited sense—not with house arrest, but with a curfew.
It can also be useful, not even in the criminal justice context but for people who are suffering from mental problems, where you want to make sure they are safe and secure. It's a way of knowing where they are. It can be useful if you don't want people like pedophiles to go to certain areas. You want to keep them out of parks and school areas. In that sense you can track by GPS whether they're staying away from those areas. If they go into an area, you would be able to tell.
For most cases I don't think it's needed, and there's a real danger that you lose its purpose by imposing it. That's what has happened in our cases. I didn't get to read all of the transcripts of people who have testified here, but I read something John Hutton said before this committee about the technical breaches becoming the issue. That's what has happened in our cases.
If you look at the history of reviews in the Federal Court on security certificate cases where they've been subjected to GPS, it's the breach of conditions that becomes more of an issue than whether or not there's a concern for national security having been infringed.
We have spent days in court wasting government money by arguing. In one case he wasn't supposed to go on a boat. He went on a paddle boat. Was that a breach or not? He may go into a building where the GPS doesn't work. You need to know that the GPS doesn't work in the subway or in malls. It really is not useful for many kinds of daily activities. But in those instances, are those breaches or not? You don't want to waste three or four days in court calling experts and talking about what a breach is instead of national security, which is the real reason why the GPS was imposed in the first place.
None of us thought it through. It started in the Harkat case. Then other lawyers and the court jumped on board and decided that, rather than have such men detained at great length, they might as well give the GPS and house arrest a try. Looking back on it now, I would never, ever, suggest this for those kinds of cases.
In one of my cases, the guy tried to commit suicide two times. It wasn't just the GPS; it was also the house arrest. If there's anything dysfunctional in the family, it exacerbates it. The person can't leave the house without a supervisor, and if he's not getting along with his supervisor, the person's stuck in the home. There are a lot of problems with it over a long period of time.
I also think it doesn't afford the protection it's supposed to. For instance, in our cases the concern was that they didn't want them communicating with bad people. Well, you don't know if they are or not on a GPS; you can't see that. All you know is where they are or where they're going, not who they're talking to. So it defeats the whole purpose of having it. It's expensive, and it's not worth it.
I think what has happened in our cases is that it has become a crutch. Because it's there and can be used, it's used whether or not it's needed. So we have clients with five years on a GPS. According to most of the things I've heard about GPS, it's generally been used in a very fixed period of time. But that's not true in our cases. So I wouldn't support its use except in very rare cases.
In the immigration context, there are other ways of controlling, like voice reporting. They can have people call daily if they want to make sure where they are. Personal reporting, that's used quite often. You could link people up with a bail program—although the bail program in Toronto, which works very effectively, is not allowed to take on certain kinds of cases. Unfortunately, those are the cases they should be taking on, like the gang cases and the security cases, because they are effective in supervising and ensuring with human contact that people comply.
I guess those are my comments.
