Public Safety Committee on May 3rd, 2012

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair.

The one thing we heard about the provisions for maintenance enforcement recovery was that for a garnishee scheme to work, the order had to be filed the moment payment was made to an individual. That became a real challenge, of course, because if payment hadn't been made on the day an order was put forward in court there'd be no money to pay out for child support. This was looked at as a different mechanism to deal with that issue, because obviously inmates aren't paid on a biweekly pay schedule, as the common citizen in Canadian society is.

I found your comments about fairness with regard to other Canadians interesting. I think that's a fair commentary. But to give an example, if I'm provided an award for damages as a victim and I'm wronged in whatever form or fashion you want in Canadian society, and the only source of income I get is the judgment for being a victim, Canadian law doesn't protect that for me. It doesn't say you have this income stream because you're a victim and therefore we will set that aside and make it untouchable by all your other creditors. They can get it regardless.

So what you're proposing is that inmates would actually have enhanced rights over those of the average Canadian, in that they would get awards because they had been victimized.

I think, Ms. Pate, you said it would be an egregious breach. I would agree. I think your commentary on that and your assessment of when these payouts occur are right. But nobody sets that aside for me or any other Canadian citizen and protects that award because someone has been victimized. If I owe Revenue Canada money, they garnishee that. If I owe spousal support, they garnishee that. If I owe any other creditor or debtor, they take that money. That money is not set aside and protected for me. Why would we do that for the inmate population, and how do we convince the average Canadian citizen that it is a suitable and reasonable thing to protect inmates from?

[Kim Pate]

Just to be clear, I don't think we do that for prisoners at all. In fact, if they have debts they do have to pay.

What I was trying to say just before we went to Mr. Fineberg was that we don't need this legislation to do that. I think this legislation goes further than that. So currently, if there are orders, there would be mechanisms to enforce them.

[Ryan Leef, Conservative, Yukon, YT]

Can you highlight that a little further for me? Because the testimony we're hearing is saying that if inmates are awarded money and they have outstanding debt or credit due, there is no way to access those funds. They go into the CSC savings account, and they are not able to make sure that's paid out. In fact the most CSC can do is encourage them through a case management plan to make a responsible choice to make the payments that are due. But there is no actual mechanism to do that.

[Kim Pate]

For sure. I would just say that if CSC is saying that, I'm not sure why they're saying that, because certainly if there's a court order, they enforce it. I know of situations where they have.

I'm not sure why they're saying that. Whether they could go behind for a victim surcharge or add something new that would be for a new payment scheme.... That might be what they're saying they wouldn't have the ability to do.

[Stephen Fineberg]

If you'll permit me—

[Ryan Leef, Conservative, Yukon, YT]

Yes.

[Stephen Fineberg]

—I had an opportunity to look at the transcript of Mr. Toller's testimony from yesterday. I think Mr. Toller was trying to make a distinction between the way the Correctional Service operates now and the way the Correctional Service would have to operate if Bill C-350 were enacted. What he was telling you was that currently the Correctional Service is not able to seize the money or divert the money. They can't do anything with the money. They can't act on a civil debt the prisoner has, even if they are aware of the civil debt.

What they do through the correctional plan is to encourage as much as possible. They encourage people to assume responsibility for their behaviour and their debts. That's what he was trying to say. I do not believe he was telling you that these moneys cannot be seized. He was saying that the Correctional Service has no authority to seize the money. He was not telling you that the civil mechanism for acting on orders does not apply to federal prisoners. That's my understanding of his testimony.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll now run to Mr. Garrison for seven minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much to both of you for appearing before the committee.

I'm going to split my time with Madam Doré-Lefebvre.

I just want to ask Mr. Fineberg a quick question based specifically on this bill. I guess it has two parts. Do you see that it has any merit? And do you see any way of correcting its legal flaws?

[Stephen Fineberg]

The merit would be in the intention, but I do not think it works. I don't think it can work. I don't think it makes sense to try to bend it out of shape and find a way to do at the federal level what the province already does and perhaps could do better.

If there is any problem with the execution of orders that is specific to prisoners receiving awards, then I think the provincial government should be encouraged to fine-tune its scheme, which already exists, which purports to be comprehensive and is already funded.

I don't see the point of this.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

I have just a brief follow-up before I hand it over then.

If this were adopted and implemented, how would an inmate or offender effectively challenge this? It would take some considerable legal resources to do that.

[Stephen Fineberg]

That is a problem. Eventually, I imagine, somebody will come forward who has the resources, either private or through legal aid support. If money is seized from someone and that person thinks that the money was seized without jurisdiction, surely there will be a challenge through the courts. As well, I'm suggesting here the provincial attorneys general may interest themselves in this, as their provincial jurisdictions are being invaded.

While we're talking about the difficulty prisoners have in mounting legal challenges, an interesting point is that this occurs also to spousal and child support orders. Typically, a federal prisoner is not able to find the resources to combat the petitions for orders, and the orders are often made out for spousal and child support without much participation from the other side, sometimes without any participation from the other side.

There are provinces, New Brunswick for instance, where there is no legal aid support available to prisoners who want to challenge that kind of thing. Usually they have to sit back and watch it happen.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Garrison.

Ms. Doré-Lefebvre.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you very much, Mr. Chair.

I want to thank our guest for appearing before the committee on Bill C-350.

My questions are for Ms. Pate because I think it is important to hear about women offenders who are in jail.

In your opinion, does Bill C-350 address a situation that is common among women?

[Kim Pate]

It's unlikely. There are some women getting payments because of the residential school settlement, so that could certainly impact women.

It's already impacted a woman for whom we've been trying to get a conviction review. In order to get a conviction review, we had a lawyer involved who was going to do it through legal aid. Now legal aid won't cover it, so we're having that argument right now. This is a matter where everybody agrees, including the corrections service, that she should not have been convicted of the offence. It was an assisted suicide, still on corrections' books, and she was convicted of murder. We're trying to get a conviction review. She can't at this point get legal aid unless she taps into moneys that have been put in trust for if and when she gets out at some point in the future.

It seems pretty egregious, after ten years of a massive history of sexual abuse and physical abuse in residential schools, to then have that money taken away in order to get her out, and then to have no resources to re-enter the community if we succeed. That's the most current situation.

The flip side of what my colleague Mr. Fineberg has talked about is the number of women who can't get legal aid for family matters when they're required to get social assistance, usually when they get out of prison. They're required to try to get spousal or child support first, or sometimes spousal and child support, before they can go ahead. So that would be an area where it could impact as well.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Okay.

[Kim Pate]

I'm sorry to interrupt. There aren't a lot who get settlements from the corrections service. Where they do, it has been after the Prison for Women situation, and Ashley Smith. There are some where people have--

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Yes, the Ashley Smith case was rather important.

Last Tuesday, Ms. O’Sullivan, Federal Ombudsman for Victims of Crime, told us that some balance is needed among victims and that we have to make sure rehabilitation tools are provided. Ms. O’Sullivan stressed that point. It was a very interesting discussion.

In your opinion, does this bill promote women’s rehabilitation?

[Kim Pate]

I can't see it being something that will necessarily assist their rehabilitation. As I say, if they're getting settlements from corrections—from the state because of actions of corrections—then they're often, as I've mentioned, using those resources to get support to assist them to get out, or to assist their children.

I do think that, unfortunately, it's the bill. As others have said, including Mr. Fineberg, there are other mechanisms. It's one of those issues where, as we've seen with some other pieces of recent legislation, the cost to taxpayers of implementing this, the cost to corrections of trying to implement this—instead of looking to the provinces to buttress the mechanisms that already exist—is not a useful way to be expending resources.

As I said at the beginning, that is not to say we don't support in principle compensation, restitution, and victim support; absolutely, we do. But I think implementing this sort of bill and putting in place legislation that's not required will probably have a huge cost to administer, versus what the benefit will be to victims.

[Stephen Fineberg]

If you will allow me, I have something to add.

[The Chair, Conservative, Kevin Sorenson]

You have about ten seconds.

[Stephen Fineberg]

It's going to create friction between offenders and the correctional service, and there is no need. If they're upset because money is being seized behind their back without their agreement, it can be the provincial mechanism that does it.

There's no need to cause this further friction between the offenders and their parole officers and correctional staff.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Fineberg.

We'll go back to the government, to Mr. Leef. But I do want Mr. Scarpaleggia to have an opportunity to ask a question, so really quickly.

[Ryan Leef, Conservative, Yukon, YT]

We'll share some time.

Thank you, Mr. Chair.

What this starts to boil down to--and your comments were interesting--is the friction between inmates and the correctional environment. We can appreciate the delicate balance you're facing, but I think what we're doing right now is putting too much of that in the hands of the inmates, and the fact is they have a debt to pay to society.

You made an interesting statement of the corrections service's responsible attitudes, and I think one of the ways we achieve responsible attitudes towards corrections is if there is buy-in from Canadian society, which includes buy-in from the victims of crime. When we talk about the cost of imposing these kinds of things—we've heard testimony about the $83 billion cost to victims and at what point that actually gets repaid and who's responsible for the repayment of that—I think your average Canadian citizen would lean wholeheartedly to the side that the people who have committed the crimes are the ones responsible for repaying that debt, the financial debt and the social debt that they have to pay.

Suggesting that putting measures in place that require them to pay that debt creates unnecessary friction allows us to bend to unnecessary concessions to them, and puts victims even further down the totem pole. It elevates criminal status to a point that is out of touch with the average Canadian citizen.

You characterize them as undeserving creditors. When I see 576 restitution orders, 1,136 fine orders, and 725 victim fine surcharges on the books with Corrections Canada on an annual basis, that represents a significant number in terms of both monetary and individual victims who are never being repaid for the crimes that occur in this country.

I think if you want fairness for the inmates, the first step that needs to occur is fairness to the victims, so they take our criminal justice system and the correctional system seriously. If we appear to be beholden to the criminals who have an obligation and a debt, I don't think that serves them well either, because I think it leaves a scary sense of self-entitlement there. I think it affords them no greater protection within the correctional environment. I don't think it allows them to move on toward a path of help, hope, and healing when they get into the citizenship thing and when they're trying to feel proud about the things they've done. If they don't find the ownership and responsibility and take that, I don't think we're doing them any favours. If we allow them to hide from it, I'm not sure how we're helping them.

I don't see this as taking money from behind their backs. The money undoubtedly is earned because of some wrong that has been done to them. The debt has also been earned and the debt must be paid.

So I'm not sure how we reconcile that, because I look back on Mr. Toller's evidence, and he flat out said these debts aren't being paid at a high percentage. I'm not sure about the burden of Corrections Canada, because the bill talks about the monetary awards being awarded by the courts, so it's clearly not Corrections Canada cutting the cheque. So somebody else is cutting the cheque to the inmates, which would mean an award would be made by a judge. The judge would find the registered creditors who need to be paid, would pay those people, either the families for child support, restitution orders, a victim surcharge that they owe, or any amount awarded by a court of common jurisdiction, and then any balance would go to the inmate, into their savings account, to be brought into their operating account, twice a year as allowed by Corrections Canada.

So it's not being taken behind their backs. It's being taken front and centre by a court order. I think it's the way we message that that's very important, that if they feel entitled to that money, are due that money and nobody else is entitled to get it, they're forgetting they've earned the debt as much as they have the compensation.

Don't you think that's an important message, that the inmates understand they've earned a debt and that debt needs to be paid?