Public Safety Committee on Dec. 1st, 2016

[Howard Sapers]

My job is really an extension of the rule of law when it comes to correctional practice. I know you don't want to engage in the Hart-Devlin debate about the role of morality in law, but the role of the office is one of accountability and assurance to Canadians that the Correctional Service of Canada is conducting itself consistent with its legal and policy framework.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Sure, but you seem to be concerned that the rate of incarceration had increased by 5%.

[Howard Sapers]

It's a fact that the population has increased by 5%.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

If that means that society is better defended, isn't that a good thing?

[Howard Sapers]

There's no evidence of that, particularly when you consider that the crime rate was actually going down while that population increase was occurring, and the population increase seems to be more tied to policies around release than around new warrants of committal for new crimes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Yes, but crime rate is a different issue. It's a question of appropriate reaction to a crime that has been committed. Crime rate is a statistic, but whenever a crime has been committed, there's been a victim, right?

[Howard Sapers]

Yes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

So the fact that more people are behind bars for more time could mean that victims are being listened to, does it not?

[Howard Sapers]

The fact that people have been hurt by crime is not in dispute, certainly not by me.

The question that I thought you were asking is whether there's a relationship from increased incarceration to increased public safety. There's a tremendous body of academic literature that would suggest that there is no straight-line relationship between increased incarceration and increased public safety. In fact, some studies claim findings of the opposite. We know that when people are returned to a community in a safe, structured way and properly supervised, society benefits from lower recidivism.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

I'm not contesting that, but I'm trying to build into the conversation the idea that we have to.... I don't want to put words in your mouth, but your primary role is to, as you said, ensure the rule of law but from the point of view of the offender. That's fine. There's nothing wrong with that. But other parts of this debate are about the victim and about the need for society to ensure that its laws are enforced, because if there is a diminution of belief that the laws are going to be enforced, then you get an increase in vigilantism, which would be something that we would not want to see either. There's a lot of moving parts in this is what I'm trying to say.

[Howard Sapers]

I think that you're largely speaking about the role of the courts in coming to a determination of guilt and imposing a sentence. It's not the role of the Correctional Service of Canada to add to that sentence.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

No, I know.

[Howard Sapers]

It's to administer it, and then prepare people for release.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

But Correctional Service Canada is a part of the criminal justice system. What I'm basically saying is that there are a lot of moving parts to this.

When my good friend Nathaniel was talking about evidence about mandatory minimums, it got my dander up a bit because I don't see anything wrong with society saying that if you've done some form of heinous act, society has a right to expect that you'll be in jail for a certain period of time.

[The Chair, Liberal, Rob Oliphant]

I'll give Mr. Sapers a chance to comment. We're over time.

[Howard Sapers]

Sure. Thank you for that indulgence, Chairman.

This is a very important point, and it ties into your colleague's question about the overrepresentation of indigenous women, for example.

It's very difficult to hold in your mind the Supreme Court decisions in Gladue and Ipeelee, which talk about individualized sentencing based on somebody's specific life history and mandatory minimum penalties. It's very hard to reconcile those two things.

You cannot instruct the courts to individualize sentences and use that kind of filter that the Supreme Court of Canada said must be used to address things like the overrepresentation of indigenous women in our prisons and then impose mandatory minimum penalties. They are completely inconsistent.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

The offender has offended and that means there has been a victim of the crime, which should also be remembered in this kind of discussion. The victims have to be remembered.

[The Chair, Liberal, Rob Oliphant]

Thank you, Mr. Clement. We need to go to Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

Mr. Sapers, my final questions will be about your next mandate, in a sense. I would like to talk about administrative segregation.

We will not talk about the provincial situation, despite the very troubling and tragic case of Adam Capay, that the media have been reporting on recently.

This brings me to your recommendation about the use of segregation for minors and also for people with serious mental health issues. Has the federal government moved forward on the matter? Could it learn something from that young man’s case, and could we also benefit from the presence of Mr. Zinger, who works in the area?

[Howard Sapers]

There are segregation practices around the world that I think we can learn from. I think that the Correctional Service of Canada has demonstrated that a more rigorous application of the existing legal and policy framework results in fewer individual placements into segregation. Segregation placements this year are down without legislative guidance, but I think to sustain that we need legislative guidance.

I think there should be prohibitions against segregating some identified populations, and we've identified those populations in our recommendations. I think there needs to be more external oversight. There needs to be increased accountability for what is the most austere and the harshest forms of custody, and that's being locked in an extremely small space for 23 hours out of every day.

Right now segregation can be indefinite and that should not be the case.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

When you say legislative guidance cannot touch on training that's offered to correctional officers, an example that comes to mind is segregation often comes from a conflict between two inmates. Could there possibly be mediation techniques, sensitivity to one's particular situation?

[Howard Sapers]

Yes. We have a framework now around things like conflict. We have policies that require you to assess and reassess. It's called the situation management model. If you're going to intervene with a use of force, you always start off with the least intervention that you think is necessary and you escalate only after reassessing based on what's happening.

The real question is the degree to which the Correctional Service of Canada is accountable and making people accountable for following the policies. Sometimes it's not a matter of more training and new policies. Sometimes it's just a matter of making sure that people are held accountable for their actions when the policy is not followed or is ignored.

I don't think that requires more legislation. I think we need legislation around things like caps on segregation, prohibitions for some populations, and the role and model of independent adjudication.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I do not want to drag you into the political arena, but, if we wanted to draft a bill of that kind, is there a comparable example anywhere else in the world that could give us a good place to start?

[Howard Sapers]

We think there's an opportunity for a truly made in Canada solution that might be in the vanguard of what's available.

[Dr. Ivan Zinger]

If you want, I can maybe complete that—