Public Safety Committee on May 8th, 2012

[The Vice-Chair, NDP, Randall Garrison]

I call to order meeting 38 of the Standing Committee on Public Safety and National Security on this Tuesday, May 8.

I welcome our witnesses today from the Office of the Correctional Investigator, Mr. Howard Sapers, and Marie-France Kingsley, director of investigations.

I'd like to invite Mr. Sapers to start with his opening statement. We usually allow about 10 minutes.

[Howard Sapers, Correctional Investigator, Office of the Correctional Investigator]

Thank you very much, Mr. Chair. It is a pleasure to be back.

I actually have very brief opening comments today, but I do appreciate the opportunity to appear before the committee to discuss Bill C-350. Today I am joined by Marie-France Kingsley, who is the director of investigations for the Office of the Correctional Investigator.

Though I will be brief in my remarks, I will raise some questions and concerns that we have noted regarding the application, scope and potential administration of Bill C-350, but I do want to declare my limitations at the outset. My office has no expertise in the prioritization of creditors or debt recovery mechanisms. I cannot speak to issues raised by this bill concerning jurisdictional matters or jurisdictional competence, and it is beyond my capacity to comment on matters of constitutionality, or even the compellability of forcing payments in the order of precedence contemplated by Bill C-350.

Hopefully, however, I can be of some assistance in bringing some insight into more practical matters that speak to the capacity and ability of a federal inmate to repay outstanding monetary debts, restitution orders, or victim fine surcharges and still meet their obligations to society while serving a sentence in a federal penitentiary.

As members know, Bill C-350 sets out priorities for debt repayment in cases when an offender is legally entitled to a monetary award. There are current mechanisms in place that allow Correctional Services Canada to register known restitutions and fines levied by the courts against federal offenders. Thousands of such registrations are currently on file. However, obligations arising from civil proceedings, creditors, and even spousal or child support payments, are not routinely noted in CSC's records. Bill C-350 would effectively require Correctional Services Canada to establish a tracking system to administer child or spousal support orders, as well as other debts owed as a result of an award by a court of competent jurisdiction.

It is not clear to me how such a registry would be created, or how much it would cost to implement or maintain. I do question whether we want or expect the federal correctional authority to be mandated to become part of a debt collection scheme. In fact, should it even be CSC's job to verify existing civil debts or other obligations, court orders, or settlements? What if a mistake is made? What if an appeal or variance is granted post warrant expiry? Who would be held accountable or liable? How would creditors register? In the case of debt repayment, is it up to CSC to decide what creditor gets paid first and in what order? One thing is certain, the cost and complexity of administering such a registry can be expected to be significant.

I understand that the need for this bill was based on a couple of high-profile cases. I appreciate that there may be a current impairment in recovering or garnishing monetary awards that may have been received by an offender under federal custody as a result of a legal action or proceeding by a federal court, tribunal, or agency. However, my experience suggests that the publicity surrounding such cases can be significant enough to likely alert any creditors. As we know, creditors usually act very quickly to intercept monetary awards before they can be disposed of by other means.

I am not certain that the creation of a complex and potentially expensive registry is the most efficient or effective way to deal with a few high-profile awards, much less meet court-ordered restitution arrangements, including child or spousal support obligations. In any event, the great majority of offenders in federal custody have very little money and limited capacity to earn while incarcerated. An elaborate recovery scheme is not likely to provide much satisfaction to victims as most debts will likely remain unpaid. Even the courts recognize these realities when imposing fines or making victim restitution orders or surcharges. This is an unfortunate reality, but perhaps also an opportunity to make substantive suggestions for reform.

Let me provide some context. I want to talk for a minute about the capacity of inmates to repay debts or meet ongoing family obligations while serving a federal sentence.

The maximum an offender can earn in a federal penitentiary while gainfully employed was set at $6.90 per day in 1981. It remains the same rate today, over 30 years later, and it has never been adjusted for the cost of living for inflation. Inmates in federal institutions are provided basic institutional clothing and personal hygiene products. Anything over and above that must be purchased by the inmate with their own money.

An established list of goods for purchase is available to the inmate population at a 10% profit margin. In 1981 when the rate of pay was established, a standard basket of canteen items could be purchased for $8.49. By 2005 that same basket of goods was estimated to cost $61.59, representing a 725% increase. Over the past three years, reductions in non-essential health care services previously provided by the Correctional Service has placed an additional burden requiring non-prescription items, such as Tylenol or medicated shampoo, to be purchased through the inmate canteen. For example, a 100 millilitre bottle of Buckley's cough syrup sells for $7.58 inside, more than one day's wages.

Other potential deductions from offender pay include institutional fines, inmate welfare committee funds, social events, and room and board. The top earners who receive overtime, incentive pay, or supplemental income, such as pension payments, are subject to pay for room and board while incarcerated. This amount is not to exceed $5 per day or $50 per every 14-day pay period.

In addition, all inmates must contribute to the inmate welfare fund. These expenses add up to $6 per 14-day pay period and cover things such as television and cable costs, as well as a variety of inmate welfare committee disbursements for organized activities for offenders, as well as inmate donations to charitable groups and legal fees for group actions.

My point here is simply to say that crime does not, in fact, pay. Prison rarely captures the affluent. Most offenders have no savings, and their earning capacity inside a federal institution is extremely limited. There seems little point in diverting earnings that, at best, will only minimally support release. It is not unusual for a released offender to be facing thousands of dollars of accumulated debt and only limited employment opportunities.

The issue that Bill C-350 addresses is an important one. Part of an offender's reintegration should include the satisfaction of debts to the best of their ability. My concern is that the suggested approach may prove both unworkable and counterproductive.

Thank you once again for the invitation to meet with you today. I look forward to your questions.

[The Vice-Chair, NDP, Randall Garrison]

Thank you very much, Mr. Sapers.

We'll move to the government side. Candice, you have seven minutes.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Thank you.

Thank you very much, Mr. Sapers, and Ms. Kingsley, for being here and for your presentation.

Just so it's clear to me, Mr. Sapers, would you in principle be supportive of a measure that would ask offenders to pay outstanding debt? I want to go on to the challenges that you identified, but in principle, I wonder what your opinion is of this bill and how it would affect offenders. In your opinion, is it a positive bill or is it something that you wouldn't be able to support?

[Howard Sapers]

Thank you very much for that question.

As I said in my concluding comments, it is an important principle and it is particularly important that offenders be given an opportunity to provide restitution and to satisfy their debts. That's part of becoming responsible; that's part of reintegration. That, in and of itself, is not my concern. The concern is really about a legislative mechanism that may create more problems than it's solving.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

I appreciate your comment. So, if I'm hearing you correctly, you do support it and you don't see it as anything that would be negative. In fact, for accountability purposes and in terms of offender rehabilitation, it would probably be beneficial for offenders to pay restitution, to pay child support, and to pay spousal support.

I wonder if you could comment on offenders' families and your role in that regard. Many times you talked about the fact that offenders don't have a lot of money in prison and, in your opinion, crime certainly doesn't pay—nor should it—but there are families who are also the victims. It might be a father or a husband who's in jail, and the family is not getting support. Is that something that you've recognized in your work?

[Howard Sapers]

Actually, very sadly, we see this happen in both directions. We do from time to time have contact from family members who are seeking mechanisms for support. We also see challenges from offenders who want to continue making whatever kind of support payments they can whether they're court-ordered or not, sending money back to the family from whatever their institutional earnings are. So there are certainly problems in both ways.

We also know that some creditors are willing to negotiate with offenders and their families in terms of income disruption and their ability to pay and satisfy obligations regarding outstanding debts—and others not so much. So that playing field is a little uneven, but I think in principle that expecting offenders to satisfy their debts in a reasonable way to the best of their ability is laudable. But there were a couple of qualifiers there: “in a reasonable way” and “to the best of their ability”.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

The challenge that I heard you articulate was more in terms of the CSC. I think you said that Bill C-350 would effectively require CSC to establish a tracking system to administer debts that are owed. Is that your main concern?

As I read the bill, I see that if an award is made from the federal government to an offender, an inmate, this bill lays out who would be paid first, second, third, and fourth, and when all of these things were paid out, then the remaining moneys would go to the offender.

I'm seeing the Government of Canada, the crown, paying out the money, but what you're saying is that as the bill reads right now, it would be up to CSC to determine who else is owed money in this list of people who would get paid before the offender would. So you're seeing this as a problem because now CSC has to find out whom the offender owes money to. Is that correct?

[Howard Sapers]

CSC would have to register both the income and the expense or the monetary award and the debt. Then they would have to administer payments. There is a schedule contemplated in the bill, but it's not clear to me, for example, what would happen if an inmate received a structured settlement. It's not clear to me, as I said, what would happen if there were a change or an appeal or a variance at some later date.

It's also not clear to what extent CSC would be responsible for maintaining the accuracy and the currency of that, and perhaps even for posting warrant expiry. It's also not clear what would happen during the period of time when an offender might be on conditional release in the community, let's say on day parole, and working and having another source of income.

It's also not clear what would happen and how funds would be received and disbursed if there were an out-of-court settlement or if there were a settlement resulting from CSC's negligence, for example, if there was a claim against the crown regarding the destruction of personal property. It's not clear to me whether even the drafter of the bill would have contemplated that.

If an inmate is transferred from one institution to another, for example, and has a radio that's worth $50 and the radio is broken during the transfer and it's clearly CSC negligence that caused that damage, then if that offender is given $50 or another radio, that's a monetary award from the crown. How would that factor into further disbursements? Those are everyday, practical considerations. The principle of debt recovery, as you say, is not the issue; but the operational challenges, I think, are considerable.

[Candice Bergen, Conservative, Portage—Lisgar, MB]

Maybe I misunderstood what you just said, but I do think it's very clear that this is not money that an inmate would be making as payment for work that they were doing while out on conditional release or if they were out and being paid. This money is actually from awards by the government.

That's an interesting point about the radio being broken. I think initially some of us might say that's a good point. The other part of that is maybe an inmate shouldn't have a radio if he hasn't paid his debts, and he needs to pay his debts first before getting a radio. I know you're giving that as an example, but I think the premise of this bill would be that even if an inmate were awarded something, if they were a victim....

Can I keep going?

I have one more really quick question.

Do you think we can amend this bill to fix some of those issues specifically with regard to CSC collecting information on who the creditors are?

[Howard Sapers]

I have not turned my attention to specific amendments. This may be less a legislative issue and more an administrative or regulatory issue.

I'll say two very quick things. The example I gave of an inmate working on conditional release wasn't about the new income. For example, family support or child support is usually based on income, so there could be a variance. Things would change if their circumstances changed.

I could have substituted running shoes for a radio. Inmates are allowed to have personal items that have some value. There are some questions about how that would affect an inmate's ability to have those items and personal effects in the cell.

[The Vice-Chair, NDP, Randall Garrison]

Thank you very much. I will now turn to the opposition side.

Ms. Doré Lefebvre, you have five minutes.

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

Thank you kindly, Mr. Chair.

I want to thank Mr. Sapers and Ms. Kingsley for being here. Your remarks were extremely informative, particularly in terms of your viewpoint.

We recently did a bit of research into what happens at the U.S. Department of Justice. One witness told us the Americans had put a measure in place. You are probably familiar with their debt repayment program for offenders. That program may have more of a financial component where the inmate receives debt repayment counselling and such.

Mr. Sapers, what is your take on a program of that nature? Could you also go a bit further and tell us whether the Correctional Service of Canada could ever incorporate inmates in the debt recovery process?

[Howard Sapers]

Thank you.

The experience in the United States, as you can appreciate, is very uneven. There are several different approaches. Some of the approaches we're familiar with include things such as debt counselling at intake. An offender who is newly admitted to a prison, as part of that admission process, will undergo some discussion about debt and the ability to repay. Some even enter into assisting the inmate in negotiating debts, recognizing that a financial burden is often a huge barrier to successful reintegration.

There are other U.S. schemes that involve housing placements and overcoming challenges such as security deposits on monthly rents and things like that. There are various approaches at various state levels across the United States.

The second part of your question was really about, as I understand it, whether there is a process we would see CSC implementing to do the same—

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

It was about including the participation du détenu en effet.

[Howard Sapers]

You mean the offenders. As a matter of fact, we have talked from time to time with institutional parole officers about the role they might play. You could contemplate a change, as I said, in the intake process. You could contemplate a change while you're doing release planning. It could very well become part of their routine, particularly if there were a registry where it was clear what the debt obligations were and it was also clear whether or not there was a source of funds to satisfy those debts.

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

You mentioned a registry. If I understood correctly, you said it would be quite costly and difficult to set something like that up. Is there no other mechanism, besides a registry, to track all those debts and do things properly? Is that possible?

[Howard Sapers]

I'm really uncertain about the most efficient way to do this. I could contemplate a situation whereby debts are registered as they are now. In the offender management system there is the ability to register monetary awards and outstanding debts.

Last year over 2,100 individual entries were made about debts and about $57 million in outstanding obligations. As I understand it, one of those was a single restitution order of $25 million. The rest accounted for the other half.

A mechanism is available, and there's a way to register. Once you collect that information and register it, it's in the administration. What do you do in terms of ensuring the collection, the payment, the forwarding of the funds, the accounting of the funds, etc.?

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

As I understand it, then, there is already a mechanism in place in those institutions that have the ability to manage it more or less.

[Howard Sapers]

It's partially in place. It doesn't register the obligations or the payments in the way that's contemplated by this bill.

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

Very well. I am not sure whether you can answer this, but what effect do you think this bill will have on inmate behaviour in the institutions? Will it be positive or negative?

[Howard Sapers]

That's very highly speculative on my part. I'm not sure I can give you an informed opinion on that.

One of the difficulties I would foresee is that if there were a dispute or a disagreement, it may not be clear that the debt is recognized, or it could be something that has been appealed. So I could see it being a source of conflict or tension if there were a dispute or a disagreement about the amounts involved.

It could also be a factor in whether or not inmates even pursue claims against the crown or whether they prefer out-of-court settlements with secrecy agreements, or whether they go through full legal proceedings where there could be public disclosure.

It could affect things that way.

[The Vice-Chair, NDP, Randall Garrison]

I will go back to the government side now, and Mr. Leef for seven minutes.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair, and welcome.

Mr. Sapers, going back to one of the questions Ms. Hoeppner was talking about, you raised an interesting point. I was curious from the bill itself if it would be interpreted the same way, just with respect to the running shoe example or the radio, because I think it's a good point if we're talking about a monetary award being made to an offender. Some of those commonplace things would generate some interesting questions.

Subsection 78(1) of the bill talks about monetary awards made pursuant to a legal action or proceeding against Her Majesty. Would a broken radio or missing running shoes or damage to personal property via a search normally go the course of a legal proceeding or an action, or is it more, I wouldn't say informal, the case that there'd be a formal review of that damage and a determination would be made by CSC that wouldn't exactly constitute a legal action and proceeding?

[Howard Sapers]

Under commissioner's directives it is a formal proceeding. It's a claim against the crown where there then could be a grant of compensation or restitution, so it may happen that way under the commissioner's directive, or it could also happen through a court proceeding.

Typically, that's what we're seeing with many claims against the crown. It's around damage or loss of personal property. That's typically what they are and they're typically not very high dollar values.