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The Hon. Charlie  Watt, O.Q. Appointed to the Senate by the late former Prime Minister Pierre Elliott Trudeau, Senator Charlie Watt represents the province of Quebec and the Senatorial Division of Inkerman.

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Third reading of Bill C-59, An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts

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Statement made on 23 March 2011 by Senator James Cowan

Hon. James S. Cowan (Leader of the Opposition):

Honourable senators, the Harper Government, notwithstanding its Conservative moniker, is in fact a radical government. It has inverted not only how politics are conducted in this country but also how public policy is developed. Bill C-59 is another regrettable example of legislation grounded in crass politics instead of sound policy.

We all remember how Mr. Harper, the candidate, promised a new era of openness, transparency and accountability. We then watched as he proceeded to run the most closed, opaque and unaccountable government Canadians have ever seen.

He cynically introduced a so-called "Accountability Act" which he still trumpets as a major achievement. It was, in the words of the then Deputy Information Commissioner, Alan Leadbeater, "smoke and mirrors." Mr. Leadbeater was subsequently dismissed from his position and escorted from his office. That action would become characteristic of the Harper Government's treatment of any public servant or independent watchdog who dared disagree with the Prime Minister.

The Standing Senate Committee on Legal and Constitutional Affairs was prescient in its observations on the Accountability Act and the Harper Government's true attitude to openness, transparency and accountability. The committee told us:

The Conservative party made much of its intent to "force the government to open its windows" during the recent election campaign. However, it became patently clear to your Committee during the weeks of testimony on Bill C-2 that immediately upon assuming power, "Canada's new government," —

— the predecessor to the Harper government,

— did its best to slam all windows and doors shut.

Since then, things have gone from bad to worse. This government refuses to hand over to parliamentarians the documents that they need as the representatives of the Canadian people who have elected them. The Speaker in the other place, on three occasions, has found prima facie evidence that the Harper government is in contempt of Parliament. Prime Minister Harper's reaction to this infamous entry in Canadian history was: "You win some, you lose some."

Honourable senators, governance is not a game, and Parliament is not a hockey arena where you win some and lose some.

The accountability regime has proven to be the opposite of what was promised. Now, we have the so-called "tough-on-crime" agenda. Again, that agenda is little more than smoke and mirrors.

I remember a Canadian Prime Minister who spoke of a just society. Prime Minister Trudeau said:

I've always dreamt of a society where each person should be able to fulfill himself to the full extent of his capabilities as a human being, a society where inhibitions to equality would be eradicated. This means providing individual freedoms, and equality of opportunity, health, and education, and I conceive of politics as a series of decisions to create this society.

By contrast, Prime Minister Harper's vision appears to be locked in the narrow sights of revenge, retribution and prison. This is a time when the crime rate in fact is falling.

Instead of celebrating the fact that Canadian policies evidently have been working, and focusing on the real issues facing Canadians, including the real crime issues, the Harper government tells Canadians that they should be afraid because unreported crime is on the rise.

Canadians expect and deserve honest, serious discussion of real solutions for real problems. In this debate, let us be honest with each other. Unreported crime is just that. It is not reported. No one investigates, no one is charged and no one is convicted and sent to prison.

Honourable senators, it is irresponsible to spend billions of taxpayers' dollars to build prisons to house so-called criminals who will never be sent there as their alleged crimes were never even reported, let alone adjudicated.

With regard to the real problems of crime facing Canadians, the solution proposed by this government, mandatory minimum penalties and longer prison time, simply will not work.

Let us look closely at Bill C-59. This bill would do away with accelerated parole review for non-violent first-time offenders. It would do so with respect to offenders who were sentenced even before the bill was introduced, as our colleague Senator Baker drew to our attention.

Let us look at some statistics to put this situation in context. In the past five years, 7,272 offenders were entitled to be considered for accelerated day parole after serving one-sixth of their sentence. Of those, 4,878 applications were successful. That is roughly 1,000 per year. That is a grant rate of 67 per cent. In other words, contrary to the some suggestions, accelerated parole has not been automatically granted; one third of the applications have been denied.

Most significant, though, is the success rate for those whose applications that were approved. Don Head, Commissioner of the Correctional Service of Canada, told the Standing Senate Committee on Legal and Constitutional Affairs that in fiscal year 2009-10, some 87 per cent of accelerated day paroles were successfully completed. Of the 13 per cent that were revoked, not one was for a violent offence; indeed, the vast majority were for breach of parole conditions. Only 2.4 per cent were revoked for the commission of an offence, and those were all for non-violent crimes. In other words, the system has worked and it has worked well.

Can it be improved? Unquestionably. However, should we simply toss out the whole concept, with its 87 per cent success rate? I would not have thought so.

Honourable senators, this bill was introduced in an apparent attempt to persuade Canadians that the government was taking decisive action to address the injustice of Vincent Lacroix receiving early parole after defrauding more than 9,000 Canadians of millions of dollars of life savings. The retroactive or retrospective nature of the bill is designed to ensure that Earl Jones, the other notorious large-scale fraudster, is not similarly released.

Honourable senators, during the debate in this house, on the so-called "tackling violent crime bill," I spoke about the importance of not reacting in a knee-jerk or ill-considered manner to the politics of fear and sensationalism. That is what this government is doing, once again, with this bill. Instead of taking the time and care to draft a precise, surgical amendment that would address cases like Lacroix and Jones, this government has simply slapped together another one-size-fits-all bill.

What will be the impact of Bill C-59? First, will it indeed focus on large-scale fraudsters like Vincent Lacroix and Earl Jones? The answer is no. Testimony this week before our Standing Senate Committee on Legal and Constitutional Affairs revealed that only 4 per cent of accelerated parole review, or APR applications are from offenders convicted of fraud over $5,000. According to the Correctional Service of Canada's own research, 61.6 per cent of those who are eligible for APR are women.

Digging down deeper, Kim Pate of the Canadian Association of Elizabeth Fry Societies testified in committee in the other place that about 82 per cent of women imprisoned are behind bars for poverty-related offences. Ms. Pate described how women are often recruited at social assistance centres by hardened criminals to do their dirty work explaining that in a number of well-documented cases poor women are seen as target. Honourable senators, 82 per cent of women overall and 91 per cent of indigenous women have histories of physical or sexual abuse. The lack of supports for their victimization as children and as women often mean that they self-medicate. Therefore, according to Ms. Pate, there are cross-addiction and mental health issues, and we end up seeing these women in the system.

Honourable senators, these are not hardened criminals, whether so-called white collar criminals or otherwise. These are fellow citizens in terrible circumstances who turned once to criminal activity. Remember, this bill concerns first-time, non-violent offenders. The evidence is clear that our prisons do not provide the help that is needed for these Canadians to successfully re-enter our communities.

The Public Safety and National Security Committee in the other place conducted a major study on the prevalence of mental illness and addiction in the federal prison system. It found that 80 per cent of the people in federal institutions suffer from addictions to alcohol or drugs.

In January, The Globe and Mail ran a special report called, "To heal and protect." It cited recent statistics that nearly 35 per cent of the 13,300 inmates in federal penitentiaries suffer from a mental illness requiring treatment. The statistics are especially dramatic for women prisoners. By some measures, 40 per cent to 45 per cent of female offenders have serious mental afflictions, according to another article in that The Globe and Mail series I spoke about. Some experts believe that this staggering figure underestimates the problem.

What is the answer, honourable senators? Lock them up for longer and longer periods in circumstances wherein they are already not receiving the treatment they need and in places where they certainly will not get the resources they require.

How does this make our streets seem safer? They will get out one day and I suspect their illnesses will be worse. Certainly their options for leading productive lives in society will be reduced even further.

The scarcity of services available in our prisons was already reducing the chances these Canadians would be eligible for early parole, leaving parole officers no real opportunity to help them reintegrate into the community. Howard Sapers, the Correctional Investigator of Canada, was quoted in The Globe and Mail saying, "This leaves them at a higher risk of reoffending. It is a great irony. The cycle is very counterproductive."

Honourable senators, the Office of the Correctional Investigator Canada has said publicly that it is concerned about the differential impacts of Bill C-59 and the effect that will have on women, and on Aboriginal women, in particular. We all know the statistics: Aboriginal people are less than 4 per cent of the Canadian population but comprise almost 20 per cent of the total federal prison population. Aboriginal women represent 33 per cent of women in federal penitentiaries.

Are these women in prison because they have masterminded a large-scale fraud of millions of dollars from Canadian investors? I do not think so. Should some of them be denied accelerated parole? Undoubtedly some should, and 11 per cent of the APR applications for women have been denied. However, should all of these women be automatically denied a chance at early parole because the Government of Canada wants Canadians to think that it is doing something about Mr. Lacroix and Mr. Jones? Is that justice?

What is our goal, honourable senators? Do we aim to simply punish, whatever the long-term consequences for the person and Canadian society might be, or is it to direct our efforts at making our communities truly safer, striving to build a truly just society?

Remember what we are talking about here: Bill C-59 is directed to first-time, non-violent offenders. These are precisely the people who are the best candidates for rehabilitation and who would or could become productive members of Canadian society.

Kim Pate spoke in the other place about the record of success for female offenders under APR. Ms. Pate said that their reintegration potential is high and that very few accelerated paroles are breached, and when they are breached, they tend to be breached on conditions as opposed to any new offences. They have a very low breach rate, a very high reintegration rate and a very good success on the use of accelerated parole with women.

Honourable senators, one of my colleagues in the Correctional Service of Canada said to me the other day, "If this bill goes through, we will probably need at least several more prisons fairly quickly to incarcerate the women who will be held for longer periods of time."

Honourable senators, this is not fuzzy, soft-on-crime thing. It is a question of what works. Let me read to you from a letter that appeared in the National Post last August. It is from Mr. William Perry from Victoria, British Columbia:

The latest Conservative plan is to invest billions in new prisons has not worked in the United States and won't work here.

As a former cop, I know that reforming the criminal justice system makes more sense. Each imprisoned generation, under our system of priorities, begets an even larger imprisoned generation. The problem is not that there aren't enough people in prison. It is that there are far too many people in prison.

We don't need more prisons, longer sentences, three strikes laws and bans on parole. We need funding for schools, jobs and rehabilitation for those re-entering society.

Honourable senators, the best evidence that we have says that sending more and more people to prison for longer and longer period of time periods simply does not work. This has been tried in the United States.

Honourable senators, in November 2007, a report entitled Unlocking America was published by the JFA Institute, a non-profit agency that has worked for 30 years on justice and corrections research. The report lists nine authors, each a prominent expert in the criminal justice field. They wrote about the explosion in the prison population in the United States from just under 200,000 people in state and federal prisons in 1970 to over 1.5 million in 2007. This is what they said:

This generation-long growth of imprisonment has occurred not because of growing crime rates, but because of changes in sentencing policy that resulted in dramatic increases in the proportion of felony convictions resulting in prison sentences and in the length-of-stay in prison that those sentences required . . .

This is the result, and remember that they are speaking about the U.S. here:

Prison policy has exacerbated the festering national problem of social and racial inequality. . . . A shocking eight per cent of black men of working age are now behind bars, and 21% of those between the ages of 25 and 44 have served a sentence at some point in their lives. At current rates, one-third of all black males, one-sixth of Latino males, and one in 17 white males will go to prison during their lives. Incarceration rates this high are a national tragedy.

They concluded:

In effect, the imprisonment binge created our own American apartheid.

Eminent conservatives in the United States have now openly acknowledged that the policies that have produced these results, and which they themselves supported, were wrong and should be reversed.

Newt Gingrich, former Republican Speaker of the House of Representatives, and Pat Nolan, who was Republican Leader in the California State Assembly, co-authored an article that appeared in The Washington Post on January 7, 2011. This is what they wrote:

We can no longer afford business as usual with prisons. The criminal justice system is broken, and conservatives must lead the way in fixing it.

The authors described how states that lowered their prison population over the years actually experienced a greater reduction in crime than those that increased it. They said:

Americans need to know that we can reform our prison systems to cost less and keep the public safe. We hope conservative leaders across the country will join with us in getting it right on crime.

Asa Hutchinson, who served in the George W. Bush administration as head of the U.S. Drug Enforcement Administration and was Under Secretary at the Department of Homeland Security, appeared before the Public Safety Committee in the other place. He described the American experience and explained why he now advocates for a re-evaluation of the U.S. approach. He said, "We have made some mistakes, and I hope you can learn from those mistakes."

Unfortunately, honourable senators, the Harper government seems to be living in some sort of a time warp, and it can only see the short-term political advantage of replicating failed American policies of the past.

I spoke earlier about the disproportionate impact that Bill C-59 will have on women, especially Aboriginal women. I now want to speak about the impact it will have on our prison system and on Canadian taxpayers who pay for that system.

Howard Sapers, the Correctional Investigator of Canada, has said there is a "system shock" that is beginning to set in, as the men and women who operate the corrections system are trying to adjust and then readjust to the pace and rapidity of the changes that are coming in from this government's so-called "tough on crime" agenda. Here is what he said to our Legal and Constitutional Affairs Committee:

If enacted, Bill C-59 will likely lead to an increase in the incarcerated offender population. . . . My office is concerned with the impact of another significant increase in the inmate population on an already burdened correctional system. An increase in the federal inmate population will affect the safety and security of institutions as well as individual inmates' ability to receive programs and services that will assist their safe and timely reintegration into the community.

In his submission to our committee, Dr. Ivan Zinger, Executive Director and General Counsel in the Office of the Correctional Investigator, wrote:

It is well documented that overcrowding in prison can lead to increased levels of tension and violence and can jeopardize the safety of staff, inmates and visitors.

He explained it this way:

. . . the pervasive effects of prison crowding reach far beyond the provision of a comfortable living environment. . . . Stretching the system beyond its capacity to move offenders through their correctional plans in a timely fashion has negative impacts on the protection of society itself as offenders are incarcerated for a greater proportion of their sentence only to be released into the community ill-prepared and then supervised for a shorter period of time.

The Harper government often tries to deflect attention away from the cost of its crime bills by emphasizing the immeasurable cost to victims of crime. Honourable senators, that is one of the main reasons I object so strongly to this so-called "tough on crime" approach. The evidence is that this approach will only create more hardened criminals and, with that, more victims of crime.

As responsible parliamentarians, it is our duty to consider the cost of legislation to Canadian taxpayers. Astonishingly — and Senator Baker referred to this earlier — the minister responsible for this legislation, Public Safety Minister Vic Toews, told our Legal and Constitutional Affairs Committee on Monday that the department had prepared costing figures, but he, the minister, had not yet seen them. What kind of fiscal responsibility is that, to propose a bill in Parliament, to sponsor it through two houses, and to admit that one has not even seen the cost estimates prepared by one's own department? How can he expect that responsible Canadian parliamentarians could vote on a bill without knowing what it will cost Canadian taxpayers?

We do now know that it currently costs between $90,000 and $140,000 to keep a male prisoner in a federal institution for a year and $185,000 for a female prisoner. We also know that the cost to keep an offender in a halfway house in a major city is about $25,000 a year.

According to their own figures — which time and again underestimate the actual cost — Bill C-59 will cost Correctional Services over $350 million over five years, with ongoing costs of $53.2 million. There are also additional dollars that will be required for the National Parole Board. The government's figures are relatively modest, ranging from $5.6 million to $17.3 million. These sound low given the testimony from the National Parole Board of the vastly increased workload they anticipate from this bill.

In fact, one witness testified that the costs of this bill alone will approach $500 million. How much health care could we provide to Canadians for $500 million? How many doctors and nurses could we send to rural communities for that money? How many young Canadians could be helped to go to a university or community college?

In the interest of being seen to take action between two high-profile fraudsters — one of whom will not be affected by this bill at all — we are being asked to pass legislation that will cost taxpayers hundreds of millions of borrowed dollars to keep thousands of non-violent, first-time offenders in prison longer. They will be kept in close contact with hardened, violent criminals and away from the services that could both help them with the problems that made them turn to crime in the first place, and facilitate their successful reintegration into Canadian society.

Essentially, this government is writing off these Canadians — in the words of the American report, creating a kind of Canadian apartheid. However, instead of "three strikes and you're out," in the Harper game you only get one chance at bat.

I must also say a word about the retroactive or retrospective application of this law. Essentially, in order to have it apply to Earl Jones, as Senator Baker has explained to us, the government has made this bill apply to all inmates, including those sentenced long before the bill was even tabled in Parliament. As a matter of principle, we — and especially many of us in this chamber, on both sides of the aisle — have often expressed great reluctance to pass retroactive laws, particularly when the issue is criminal legislation. There are good reasons for that. Earl Jones is one case, but there are likely many more who decided to plead guilty rather than go to trial — or decided not to defend themselves in court — because of the accelerated parole review process.

Now all the rules are changed. There is a problem with that, honourable senators. There may well be, as Senator Baker said earlier and as Senator Joyal pointed out in cross-examining witnesses before the committee, a constitutional problem with that as well.

Fundamentally, I do not believe that criminal justice is best served by legislating mandatory prison terms and eliminating or severely reducing the role of discretion afforded judges and other decision makers. Our justice system, honourable senators, was built on the premise that everyone is an individual before the law. Increasingly, with mandatory minimum penalties set out in statute, and the abolition of alternatives such as accelerated parole review, we are replacing our criminal justice system with something very different.

Instead of looking at each case on its individual merits, we are applying a kind of group sanction or group-think, yet we are doing so with no evidence to suggest that this system will be an improvement. In fact, all the evidence indicates that these approaches have not worked where they have been tried. We are discarding a system that has worked well for the most part; it can be improved, but it is no improvement, I suggest, to simply throw the whole thing out.

Honourable senators, Bill C-59, like so much of this government's law and order agenda, is simply wrong-headed. It will prove costly to Canadian taxpayers both in the short term, with the cost of housing all of these offenders for longer and longer periods of time, and in the long term, with what I firmly believe will be an increase in the crime rate as we turn non-violent, first-time offenders into repeat ones.

For all these reasons, I cannot support this bill.

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