The Canadian Prison Law Association thanks you for the opportunity to appear on this bill.
We're a national organization of prison law practitioners from across the country whose purpose is to advocate on behalf of incarcerated persons and promote the rule of law as it affects the prison community. Since our founding in 1985, it has been our privilege to appear before this and other committees of Parliament on matters affecting the prison law environment.
I should mention that while our members are legal professionals, all activities undertaken on behalf of the CPLA are performed on a voluntary basis.
Our organization has objections to Bill C-350 based on principle and law. We are aware of and somewhat resigned to those many restrictions and irritants which consignment to a federal institution lawfully imposes on our clients and their incarcerated peers, yet the penalty unexpectedly proposed by Bill C-350 is of a kind unrelated to the rest. It is difficult to imagine that the sentencing judge, with one eye on the facts and the other on proper sentencing principles, would have anticipated, much less intended, the imposition of special rules for the garnishment of monetary awards, especially as the sanctioned criminal behaviour likely hasn't the slightest connection to the civil ill this legislation wants to cure.
Do not think that we stand against the payment of spousal and child support orders, or the payment of restitution, or the satisfaction of monetary judgments won in the civil courts. What we deplore is the conferral on deserving creditors of a new statutory advantage which is proferred only where and because their adversary is a federal prisoner. If there exists compelling reasons for offenders to respect court-ordered payments, it is not because an individual has committed a robbery, or an assault, or a drug offence; it is for exactly the same good reasons that apply to every other Canadian who is the subject of a court order. The statutory pressure on offenders to comply with orders should be neither less nor greater than that on the rest of the public. To operate otherwise would be to head down the road to second-class citizenship with second-class civil rights.
We must not forget that there was a time when conviction brought with it civil death, the extinction of all civil and property rights. The damaging disparity of the offender's status and that of the ordinary citizen could not have been more complete, but Canadian society has steadily moved away from that antiquated and counterproductive notion.
In 1906 the most drastic features of civil death were swept away in Quebec through the action of legislators like yourselves. In the rest of Canada the legislatures took action 14 years earlier. Still, the courts were slow to admit that offenders had rights that could be violated by unfair decisions by penitentiary authorities.
The Supreme Court decision in Solosky v. the Queen, in 1979, was a turning point, crystallizing the new understanding that “a person confined to prison retains ail of his civil rights, other than those expressly or impliedly taken away from him by law”.
Today this concept is built into the Corrections and Conditional Release Act itself, which reads at paragraph 4(d), as amended by Bill C-10:
(d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted;
Clearly, that concept does not endorse a prejudicial garnishment scheme necessitated by neither sentencing principles nor the constraining barriers of bricks and bars.
Should the proposed rules be adopted, would this return Canadian offenders to the cruel and discredited condition of civil death? Obviously not, but it would be a step backward in that direction, and if it should serve to encourage additional measures that further degrade the civil status of offenders, it would be part of a societal tragedy.
We wish to refer the committee to the possibility that this adverse treatment reserved for federal offenders would violate section 15 of the charter, which prohibits discriminatory measures based on membership in a disadvantaged group. Of course, for a section 15 challenge to succeed the courts would have to recognize offenders, or at least federal offenders, as a group contemplated by that section.
Admittedly, this position was rejected in the Sauvé case by the Federal Court of Appeal, and subsequently by four justices of the Supreme Court, but we hasten to remind you that that opinion is found in a minority decision. That was in 2002. We note that the majority in the Sauvé case declined to rule on the application of section 15 to prisoners, leaving the door open for a differently constituted court to rally to our position, which we respectfully submit will one day prove to be the right one.
If the attack on Bill C-350 on equality grounds should have the look of a viable but uphill battle, the balance is different where the sections 91 and 92 debate is concerned. Here, we think it is for the bill's defenders to demonstrate why this apparent federal invasion of provincial jurisdiction would not be struck down. The question warrants a close examination by experts more focused than we are on the issues raised by section 91 and 92 conflicts, or, to be more specific, conflicts between Parliament's legislative authority over penitentiaries and the provincial legislatures' jurisdiction over matters related to the administration of justice and property and civil rights.
Given this bill's overt duplication of at least some provincial activity, before proceeding to enactment of Bill C-350 it surely would be prudent to hear from the provincial attorneys general, as they are among the interested parties who might be provoked to challenge your jurisdiction in the courts.
Without waiting for expert opinion, however, we feel comfortable stating that Bill C-350 wants to create rules governing matters in the provincial domain, and furthermore risks impairing the provincial scheme already controlling execution of court orders against all assets. The new specialized regime would create confusion for creditors faced with two sets of rules and create two classes of creditors, conferring an unfair advantage on those fortunate enough to have federal offenders as their debtors. One is forced to wonder if the new selective enforcement possibilities against federal offenders will work an even greater mischief by inspiring an interest on the part of some creditors in seeing their debtors receive a federal sentence.
We have said that we have no disagreement with legal rules that facilitate creditors' exercise of their civil and property rights. We imagine the author of this bill shares that position. Why, then, does he not seek to assist all the deserving creditors, instead of a small minority of them? The answer, of course, is that he understands this is beyond your competence as federal legislators. It is a provincial matter for your provincial counterparts, and that is how the execution of court orders and judgments should be handled.
We wonder as well if anyone has examined the financial burden of setting up a comprehensive registry of awards and judgments and orders issued against offenders and of federal awards of ail kinds in offenders' favour. Or is Mr. Lauzon's proposal to hand Correctional Service Canada, or some other branch of the federal bureaucracy, the assignment and discover later what the set-up and annual costs will be?
Bill C-350 pits itself not only against provincial legislative and administrative efforts, it seeks to undermine Correctional Service Canada's own operations. One remembers that Bill C-10 has recently added section 15.1 to the Corrections and Conditional Release Act, instructing wardens to ensure that a correctional plan is established for all offenders, the goal of which is to bring about their rehabilitation and reintegration on release as law-abiding citizens. To that end, each correctional plan must contain “objectives for the offender's behaviour, including ... (iii) the meeting of their court-ordered obligations, including restitution to victims or child support”. Offenders' progress toward meeting these objectives is to have an impact on transfer and parole decisions.
The correctional plan is at the heart of Correctional Services Canada's program to move the prison population toward responsible attitudes that it is hoped will persist after release. I assume the inclusion of court-ordered obligations in the plan was not done without some thought. CSC does not want court orders satisfied despite the offender's opposition. That would defeat the goal of bringing offenders to understand and accept the rightness of responsible behaviour toward their dependants and creditors. Bill C-350 will pre-empt and frustrate CSC's mandate in this regard, one that was just conferred by Bill C-10.