Public Safety Committee on May 10th, 2012

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 39 of the Standing Committee on Public Safety and National Security, on Thursday May 10, 2012. Today we are continuing our consideration of Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders).

Our first witnesses today are appearing by video conference from Winnipeg, Manitoba. We have the Manitoba Keewatinowi Okimakanak Inc., with Grand Chief David Harper and Michael Anderson, the director of the natural resources secretariat.

They are not there yet, but we also have here, appearing as an individual, Mr. Steve Sullivan.

We welcome you to our committee, Mr. Sullivan.

He is the former Federal Ombudsman for Victims of Crime.

Let me just say that you have a very tough act to follow, Mr. Sullivan, because we had the current victims commissioner here, and she did a remarkable job. You can pass that on to her.

We do welcome you here and we look forward to your testimony.

I see that we do have some action there in Winnipeg now.

We want to welcome you. Can you hear us in Winnipeg?

[A voice]

Yes, I can hear you.

[The Chair, Conservative, Kevin Sorenson]

All right. They're still working on the audio.

We're just waiting, then, I guess, for David Harper, the grand chief, and Michael Anderson.

[A voice]

Michael is here, but we're just waiting for the other individual.

[The Chair, Conservative, Kevin Sorenson]

Perhaps we will begin. We have one guest with us here in Ottawa.

We will invite Mr. Sullivan to begin, then, if he would, with opening comments.

When Mr. Harper and Mr. Anderson are prepared, we will look forward to their comments after Mr. Sullivan's.

Welcome, Mr. Sullivan.

[Steve Sullivan, Former Federal Ombudsman for Victims of Crime, As an Individual]

Thank you, Mr. Chair.

Thank you for the invitation. My opening remarks this afternoon will be fairly brief.

I should just say that I've been working with victims in various roles for almost 20 years as an advocate and, as you mentioned, as the former ombudsman. Currently I work with Ottawa Victim Services, which is a smaller community agency here in Ottawa, but I'm here as an individual representing my own personal views.

Let me begin by saying that I support the principles of Bill C-350. I'm not qualified to speak to some of the testimony I've read on the federal-provincial issues that have been discussed, or the constitutionality, but the principle of the bill is one that I support. I think it is only logical that someone who is in a federal prison for creating victimization, for example, and who is being asked for compensation for that victimization committed upon that person, would respect the individual's legal rights and civil rights that have been violated and provide compensation if they have been ordered by the courts to do so. I think that's a fairly practical and logical procedure to undergo.

Having said that—and certainly no criticism is meant of the author of the bill—I don't think this will have a very large impact on the majority of victims of crime. You've heard evidence from other witnesses about the number of federal offenders who have restitution orders—around 575 or so, a relatively small number. There's a small number of those who have victim fine surcharges outstanding. I think it was 700 or so. That's a reflection of some problems in the courts about the way restitution is ordered and the way victim fine surcharges are often waived in so many cases even though they're not supposed to be. Those are other issues beyond the scope of the bill.

I don't know what the mechanism would be for Corrections, for example, to know about civil orders that have been ordered if a victim, for example, or a family, sued an offender civilly. Those as well are not all that common. It's difficult for victims or families to have the financial means to sue individuals in civil court, so it's a relatively small number of offenders who, I would expect, would be in federal prison.

I have not had a lot of experience with working with victims whose offenders have received compensation, either through the federal government or through other provincial governments. I can think of one case of an offender serving a life sentence for murder who received some compensation regarding an institution he had stayed at as a young person. He was abused in that institution. But other than that, I don't have a lot of experience with it. I don't think most victims have those civil judgments as well.

As I say, again, I don't mean to criticize the author of the bill. I think the principle is a sound one. I really don't have much else to say in my opening remarks, although I'm happy to answer any questions the committee members may have.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Sullivan.

Mr. Anderson, is that you I see in Winnipeg?

[Michael Anderson, Director, Natural Resources Secretariat, Manitoba Keewatinowi Okimakanak Inc.]

Mr. Chair, I apologize if I've been coming in and out. I don't have the video feed from your end, so I thought it was not working.

Thank you very much for the opportunity to appear. Would you like me to make my comments at this time?

[The Chair, Conservative, Kevin Sorenson]

Yes, please. Let me also say that the video feed and the audio feed are very good here. We see you and we welcome you to our committee.

[Michael Anderson]

Thank you very much. I have some brief comments to make regarding the bill.

Tansi, boozhoo, edlanet'e, and good afternoon, Mr. Chair, members of the committee, and Madam Secretary.

On behalf of the northern Manitoba first nations, of which there are 30, and the 65,000 first nations citizens represented by the Manitoba Keewatinowi Okimakanak—MKO—I'd like to thank you for the opportunity to provide these brief comments and recommendations regarding Bill C-350, An Act to amend the Corrections and Conditional Release Act (accountability of offenders).

It's a core vision of the 30 MKO first nations that each of the MKO first nations should be the safest and most secure place to live for each of the citizens of the MKO first nations. The MKO first nations first and foremost are committed to achieving the highest standards of public and community safety and security based on community-driven preventive and restorative approaches supported by community-based policing.

It is the objective of these initiatives to place an emphasis on reconciliation between the victim and the community and the offender, and on the rehabilitation and reintegration of offenders as productive members of the family and the community. This vision also reflects the inherent and customary laws and the community and cultural values of the MKO first nations.

Bill C-350 proposes that reconciliation between the victim and the offender might be advanced by ensuring that any amounts owing and payable by Her Majesty to the offender are instead paid directly by Her Majesty to the victim in accordance with the priority that's established in proposed subsection 78.1(1).

Clause 2 of Bill C-350 proposes to amend the Corrections and Conditional Release Act by including the new subsection 78.1(1), which would provide that “any debt owed to an offender as a result of a monetary award made to the offender by a court, tribunal or agency pursuant to a legal action or proceeding against Her Majesty the Queen in Right of Canada or an agent or employee of Her Majesty in the course of the performance of his or her duties, shall be satisfied by the payment”, according to the order of priority established in the proposed bill.

MKO is very concerned that the classes of monetary awards contemplated in Bill C-350, being a monetary award made to the offender by a court, tribunal or agency pursuant to a legal action or proceeding against Her Majesty in Right of Canada, would include a payment or award made to an offender pursuant to the Indian Residential Schools Settlement Agreement, which settlement has been approved by the courts. Subject to check, it's my recollection there are at least nine court orders approving the Indian residential schools settlement as a series of class actions.

First nations persons receiving a payment or award further to the Indian residential schools settlement are recognized essentially as victims as well. The payment or award is essentially a form of restitution for the victimization of these first nation persons through the Indian residential schools system. The apology delivered on June 11, 2008 by the Prime Minister represents a recognition by government of the significant impacts of the Indian residential schools system on many thousands of first nation citizens. Further recognition in Canada's legal system of the potential impacts of colonization, including the effects of the Indian residential schools system on the circumstances of aboriginal offenders, appears in paragraph 718.2(e) of the Criminal Code.

Paragraph 718.2(e) requires a sentencing judge to give particular attention to the circumstances of aboriginal offenders in considering whether an alternative to incarceration may be more appropriate in the circumstances. In R. v. Gladue, the 1999 decision of the Supreme Court of Canada, that responsibility or obligation of the court was reinforced for sentencing considerations in the case of aboriginal offenders.

In Canada, 20% of inmates in federal prisons are aboriginal people. In Manitoba, 70% of the inmates in provincial facilities and 50% of the inmates in the two federal institutions are aboriginal persons. However aboriginal peoples make up only 15% of Manitoba's population and about 4% of the population of Canada. In Manitoba, aboriginal offenders are sent to prison more often than non-aboriginal offenders. Aboriginal offenders in Manitoba make up more than two-thirds of offenders in custody, but less than half of those serving conditional sentences.

In part, the significant and disproportional representation of aboriginal offenders in Canada's justice processes arises from the persisting effects of the Indian residential school system on the survivors and their families and communities. It is important to recognize that many aboriginal offenders are also survivors and are also, therefore, victims of the Indian residential school system.

It would be inappropriate and contrary to the intent of the apology and to the objectives of the Indian residential schools settlement for Her Majesty to effectively seize a payment or award made by Her Majesty as restitution to the offender, who is also a survivor of the residential school system, when this survivor's offence can at least in part be attributed to the adverse effects of the Indian residential school system.

In respect of Bill C-350, MKO recommends that clause 2 of the bill be amended to expressly exclude or provide an exception for any payment or award made further to the Indian residential schools settlement agreement from those classes of monetary awards proposed to be encompassed through proposed section 78.1 of the Corrections and Conditional Release Act.

MKO further recommends that persons expert in matters related to the Indian residential schools settlement agreement appear before the standing committee to provide evidence in respect of the settlement and of the court-supervised nature of the settlement process.

Those are my opening comments.

Ekosani. Mahsi' cho. Meegwetch.

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll move into our first round of questioning.

I invite Ms. Hoeppner, from the government, to question for seven minutes.

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

Thanks, Mr. Chair.

Thank you to both Mr. Sullivan and Mr. Anderson for being with us today.

Mr. Anderson, I'm going to begin with you. We've heard testimony throughout our study of this bill about how important it is for victims and family members to receive restitution when crimes are committed. We've looked at the order this bill lays out. We've also heard testimony that including residential school awards would not be the right thing to do.

As a reflection of all of Canada's sadness over the treatment of children in Indian residential schools, the Prime Minister offered a full apology in 2008 on behalf of Canadians. Could you articulate and explain a little bit further to us why, in light of that, it's important to not include residential school payments in this bill while at the same time maintaining the overall spirit of victims being paid and receiving compensation?

[Michael Anderson]

Thank you very much for the question.

As I indicated at the beginning of our comments, the reconciliation between victims, offenders, and communities is a core element of our restorative justice and community-based policing initiatives and our vision for our policing and justice systems—public safety—within our territory. Particularly when you have a fairly small community in which persons are expected to reside together for an extended period of time—if not for most or all of their lives—it's absolutely essential that this form of reconciliation take place, so it's uppermost in our minds.

I know that on a separate bill before the Senate, Bill C-10, there was a representative from the Inuit of Nunavut, a public defender from that territory, who indicated the significant impacts of an offender returning to the community without having this process of reconciliation take place when you're dealing with a small hamlet of fewer than 200 people.

The same kind of thinking applies in our case. The residential schools payments, the claim settlement amounts, are intended to try to set right the life of an individual who has been severely disrupted by his or her experience in the Indian residential school system.

The quantum of the settlements, the two types of payments—the common experience payment and the independent assessment amounts—are intended as a form of restitution and an attempt to reconcile the effects of government policy and the actions of the churches on these individuals. These amounts are intended to assist an individual in recovering his or her path in life and then in moving forward.

For these amounts to be reallocated for victims of an offence they may have committed—as I said, in part as a consequence of the adverse effects of the IRSS process—completely undoes the intent of the award and also sets the individual back in terms of the ability to be reconciled within Canadian society.

That being said, the concept of reconciliation is a very powerful customary law principle. Excepting the payments from the basic provisions of the act does not prevent a process whereby individual offenders may consider whether any amount of that payment might be paid by them to the victim in their personal journey to reconcile that particular act.

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

Thank you very much for that.

For the benefit of the committee and for those listening, could you let us know how important even today that apology was—the restitution obviously, but also the apology on behalf of Canadians—from the Prime Minister?

[Michael Anderson]

The apology was extremely important. During the apology itself, our boardroom in Thompson was absolutely packed. There were first nations citizens from our communities and leaders and technicians from the various groups who joined us in the Grand Chief Francis Flett memorial boardroom. People were completely surrounding our building.

It was an enormously important and significant event in terms of a recognition by Canada of the reality of the residential school system and the effects it had on aboriginal Canadians, on first nations Canadians. That first step toward reconciliation was enormously important, but it's important to underline that it was a step toward reconciliation between Canada, the churches, and the victims of the IRS system, and that the claim settlement mechanisms through the agreements and so on are further steps in that long process.

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

Thank you.

I'm going to go to Mr. Sullivan now, just to change direction a little bit.

How much time do I have?

[The Chair, Conservative, Kevin Sorenson]

You have a minute and a half.

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

Mr. Sullivan, from the work you've done on behalf of victims and with victims, can you tell us a bit about what it means to victims—even the psyche of being a victim—to have, for example, a government not recognize that an offender should be held accountable by way of being asked to pay restitution? We've heard some testimony that some judges aren't always awarding restitution, and then there's a problem, because obviously you can't collect what hasn't even been awarded.

It's not about the money, because money can never repay or redo the harm that has been done to victims. But I think there's a message that has been sent in the past, and I think it is one of the things this bill is trying to change. The message has been that offenders, because of where they are located, aren't necessarily under the same rules as the rest of Canadians, even in terms of their civil obligations to pay debts.

Can you explain to us, from the work you've done, what it would do for a victim to know that if a restitution order has been placed on the offender and the offender comes into money, it would be paid to them?

[Steve Sullivan]

I can say that restitution is unfortunately rarely ordered by the courts, and most often it is for property offences. One of the requirements of the code is that you have an actual set amount. If it's a broken TV and I know that my TV cost $500, I can give that to the court.

Courts have discretion around providing orders of restitution in non-property related expenses, but those are often difficult to quantify. So when it comes to a sentence that often takes place quickly because there's a plea bargain and all those things, restitution is rarely part of the sentence.

It often can be very frustrating for victims who expect to receive the restitution. Often, it's coupled with probation orders. A guy would get a provincial sentence and a probation order, and if he doesn't pay the restitution order at the end of his sentence, it's up to the victim to go to civil court to try to get that money back. That's not a practical process for most victims of crime. They just don't have the means or, frankly, sometimes the energy to go through that.

So it's doubly frustrating when someone is ordered to pay restitution and doesn't do it. What we know from the research is that victims often appreciate even the attempt to provide restitution. Let's say someone owes you $1,000, is making efforts to pay it back, and gives you $100. So it might take years, but that attempt is more meaningful for victims than government compensation.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Sullivan and Ms. Hoeppner.

We'll move to Mr. Garrison, please, for seven minutes.

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

Thank you very much, Mr. Chair.

Thank you to both witnesses for appearing today.

I want to start with some questions or remarks from Mr. Anderson. We very much appreciate your testimony, in particular with regard to the problem of awards through the Indian residential schools settlements.

I'd like to pursue that a little more with you but also let you know that we on the NDP side have prepared an amendment to exempt those settlements because of other concerns we've heard. If I understood correctly what you were saying, there are a couple of problems if they are included.

One is that including them takes reconciliation out of the cultural context. The other seems to be that it takes away agency from the person who needs to make his or her own decision to pursue that reconciliation.

Is that a correct understanding of what you were saying?

[Michael Anderson]

Yes, those are both components of what we were saying. But also, of course—and importantly—the payments themselves are reconciliatory in their root; that is, intended to reconcile the adverse impacts upon the individual of the Indian residential school system. They're intended as an important part of that individual's healing process. So this undoes the intent and objective of that award.

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

Have you seen—

[Michael Anderson]

The other aspect—

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

I'm sorry. Go ahead.