Public Safety Committee on May 10th, 2012

[Michael Anderson]

Again, my comment, though, is that we're not discussing a process to transfer the awards of moneys under the laws of Manitoba. We're talking about a federal statute dealing with individuals who have an award being provided to them by the federal government, in part through actions of the government that it has acknowledged.

Again, I would say they are distinguished from those two cases on—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay, and I understand that, and I respect your view. The problem—and it's a big one—is that if there's an amendment to this legislation to create an exemption for a person in a federal institution who comes into a settlement, that person will be able to shield his or her settlement from his judgment creditors and a person on the outside won't.

I have not seen the NDP amendment, but if it says what I suspect it says, it's creating an exemption for federal prisoners that members outside the federal institutions do not currently enjoy. That's not really a question; it's a statement. I'll leave it at that, Mr. Chair.

That's fine—

[The Chair, Conservative, Kevin Sorenson]

There's a minute and a half left.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

—unless you want to comment.

[Michael Anderson]

I want to comment that the object of the bill is not to create a uniformity in terms of the processing of claims and the ability to attach moneys that persons who are offenders might come into. We're dealing with a specific piece of federal legislation that is designed to amend another specific piece of federal legislation dealing with Corrections and conditional releases, as distinct from the ability to seize and attach moneys. I think we need to keep very closely—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

The bill is an attempt to create a priority for victims outside the normal provincial laws of creditor priorities. So you're right—it's an attempt not to attach. It's an attempt to create an exemption and then create priorities.

Thank you, Mr. Chair.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Rathgeber.

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

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you.

This is a fascinating debate. It's very edifying, and I'm following it with great interest.

As I understand it, just so that I'm clear, Mr. Sullivan and Mr. Anderson are on opposite sides of this particular issue. Is that correct?

[A voice]

Yes.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

If I understand it, Mr. Anderson, your argument, which is obviously a very strong one, is essentially that these payments to victims of residential schools were ordered by the federal government, pursuant to an acknowledgment that the federal government had done some wrong and was responsible for victimizing many in residential schools.

Is that the fundamental logic? It seems to be what I'm picking up, but I just want to make sure I understand.

[Michael Anderson]

Yes. It's important, too, that the residential school settlement process is court-supervised and subject to court orders approving the settlement agreement; hence its linkage to the way the statute is worded at present. There is a linkage between the flow of those moneys and the actions of Her Majesty as acknowledged by the Prime Minister on June 11, 2008.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I need your help here. I was in the House when the Prime Minister apologized, but would settlements not have been paid regardless of the apology? I mean, there has been a process in place to indemnify victims of residential schools going back to before 2008, I think.

Am I not correct on that? Does the apology have legal weight in terms of requiring the government to make these payments? I thought this was all part of an earlier settlement.

[Michael Anderson]

Again, I'm not a lawyer and am not providing a legal opinion, but I would say that the settlement agreement and the subsidiary agreements speak for themselves as to the responsibility accepted by the various parties, and the processes that are outlined for addressing those responsibilities.

The apology has weight in terms of providing a moral recognition by the government of its actions. To a first nations person, in accordance with customary law of first nations, your word is your bond. That's a very important thing for the current representative of the Queen's side of the treaty negotiations to acknowledge: that the commitment to build a nation together in peace and harmony was unravelled shortly after the entering into treaties. The consequences of that are as they are laid out in the apology that was provided on June 11, 2008.

The manner of dealing with those acknowledgments, however, speaks for itself through the settlement agreements themselves; hence our recommendation that a person expert in the administration of the settlement and the claims, and the funding and payment of those claims, might wish to appear before the committee at your invitation.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

The idea that your word is a contract is a good credo to live by, and certainly one that everyone should live by.

If I gave you a theoretical example—very theoretical—of a situation in which the federal government was responsible—maybe not directly, but could be seen to be indirectly responsible—for victimizing someone and had then to pay out restitution, perhaps you could comment on it. I'm curious to see how you would approach it—and you, Mr. Sullivan, maybe.

Let's say we're talking about a case of sexual harassment within the government. It could be within the RCMP, but let's leave the RCMP out of it, because it's not about the RCMP; it's just a theoretical example.

Let's say that a female employee of the government suffers extensive sexual harassment, sexual abuse, to the extent that the person suffers from post-traumatic stress syndrome, which is not unheard of in those cases. Then, because people who suffer from post-traumatic stress syndrome can do harm to themselves and presumably to others, let's assume that this person, this woman, commits a crime—it could be a property crime—goes to prison, and receives restitution or a payment from the federal government for the sexual harassment she suffered.

Do you think that should be exempted as well?

[Michael Anderson]

Mr. Scarpaleggia, our evidence is dealing expressly with the awards under the Indian residential schools settlement agreement and those awards provided to first nations or aboriginal persons. The example you've given is wholly different in its nature and its source. Victims have their own comments and view; victims will describe their own experiences. But the victims of the Indian residential school system were victimized for extended periods of time and in multiple ways that are set out in the apology.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

I understand that, yes.

[Michael Anderson]

We're dealing with a specific set of events that led to specific victimization of specific persons and a settlement agreement that's been approved by at least nine courts. We're dealing with a very large set of effects that has, regrettably, the effect of dominating much of our intercourse between first nations persons and government. It is a long road to set all of that healing in place and to come out the other side. These settlement amounts are part of that healing process.

With respect, I just see the examples as wholly different.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Okay. One, as you say, is a broader set of circumstances over a longer period of time, something that undermined relations between peoples—

[Michael Anderson]

Let me say that, as I mentioned, our Criminal Code of course reflects that element of that legacy in paragraph 718.2(e), the requirement for what's become known as Gladue reports. The word “aboriginal” appears once in the Criminal Code, and it's in that provision that it does. Sentencing judges are compelled to consider the specific circumstances of an aboriginal offender as an alternative to incarceration. So this legacy is reflected even in the Criminal Code of Canada with instructions for sentencing judges.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It's hard to believe you're not a lawyer, sir.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Anderson.

We'll now move to Madam Doré Lefebvre.

You have five minutes.

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

Thank you very much.

Five minutes is perfect.

Thank you Mr. Sullivan and Mr. Anderson. It's good to see you again.

Mr. Anderson, I know you've been asked a lot of questions about residential schools. If there is no exemption for residential school awards or monetary awards granted to your communities, how would this be viewed by the people you represent?

[Michael Anderson]

As we've indicated, the lack of any exemption would be viewed as inappropriate and contrary to the intent of the apology and the objectives of the Indian residential school settlement. The persons who we've spoken to about the bill were uniform and swift in their reaction to the lack of any exemption being entirely inappropriate with the intent of the apology and with the settlement itself.

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

Thank you very much, Mr. Anderson.

I will now ask a question to Mr. Sullivan.

The present federal ombudsman appeared before our committee on Bill C-350. She said that we had to focus on what victims have to go through, presently, and also on rehabilitation, to make sure offenders do not commit more crimes.

How do you think Bill C-350 could encourage offenders to participate in this kind of initiatives, to support their rehabilitation?

[Steve Sullivan]

If we lived in a perfect world, we wouldn't need prisons; we wouldn't have offenders. In an ideal world, which we do have, if an offender were to receive compensation from the government or another place, then he would freely turn around and provide that restitution to the victim that he created. We all know this. But you don't just give the money over to the victim. These are court-ordered restitutions, right, which, as we talked about, are very rare to see.

But you would hope, then, that as the process, whether it's this process or a process whereby they were encouraged.... I think in Bill C-10 there's a reference now in the correctional plan to encouraging offenders to repay. You would hope that this could perhaps be part of the programming for offenders: you created this victim and this is part of your responsibility now to that person to help make up for what you've done and to apologize.

I think probably we'd be surprised by how many offenders might want to do that. They might, after taking some program, be very much in favour of that. But having said that, if they choose not to do it, then I think it's a fair process to say, “Well, you're going to do it anyway, because you do have a court-ordered sentence”.

These are sentences that they have. Fulfilling a restitution order is not just a responsibility; it's a legal obligation to fulfill your sentence, just like going to prison, or just not like drinking if you're on probation. I think it can be part of a rehabilitation effort for a lot of offenders.