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Wilfred Moore

The Hon. Wilfred P. Moore, Q.C., LL.D. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator Wilfred P. Moore represents the province of Nova Scotia and the Senatorial Division of Stanhope St./South Shore. He has served in the Senate of Canada since September 26, 1996.

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Third reading of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody)

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Statement made on 21 October 2009 by Senator Serge Joyal

Hon. Serge Joyal:

Honourable senators, this issue of Bill C-25 is a serious one. Surrounding this bill there has been a lot of — I will use a word that I do not like to use on the Senate floor — "politicking," which is essentially concentrating attention on political slogans instead of looking at the merits of the bill. My intention this afternoon, in reply to Senator Wallace, is to concentrate on the merits of the bill and avoid any politicking or political slogans.

The problems I have with this bill are threefold. The first one relates to the Charter. This bill has three serious Charter implications. I am not inventing them for honourable senators this afternoon; I draw those conclusions from the testimony of five experts that we heard. I will quote from them later in my intervention this afternoon.

Second, this bill will have a serious impact on the condition prevailing in the prisons for the inmate population and the staff that is there to maintain order and serve them.

Third, this bill will affect drastically the most vulnerable in the prison system, namely, people suffering from mental disorders, Aboriginal people and women. As an aside on the bill's impact, we heard from the president of the Canadian Association of Crown Counsel that it will clog the bail courts. That is not the impact that is wanted by those who drafted the bill. I totally recognize the objectivity of their intentions, but that impact is what we heard from the expert witnesses.

Let me return to my first point: This bill will have serious impact on the Charter and will be open to challenge in the courts.

As senators, it is one of our duties, when we are called upon to support the bill, to question its implications for the Charter. In the respected intervention of our esteemed colleague, Senator Wallace, neither yesterday nor today did he answer those issues that were raised by the witnesses, which the honourable senator well knows — as do Senator Nolin, Senator Angus and Senator Carignan, who sat during the long hours that we spent studying this bill.

Honourable senators, let me report what we heard from those experts. First, we heard from Michael Spratt of the Criminal Lawyers' Association that:

Bill C-25, if passed, will result in constitutional litigation. Bill C-25 offends the Charter. It will have the real effect of doing something that we do not seek to do in sentencing. In sentencing, we seek to treat like offenders who commit like offences in similar ways.

One can imagine a number of scenarios where like offenders who commit like offences and who have like personal circumstances are punished differently. One of those punishments is spending an inordinate amount of time in remand facilities with no programming and harsh conditions, much like the individuals who did not get their bail hearing today. They are not receiving programming. . . .

Pre-sentence detention is not lenient, it is cruel.

The impact of this bill is that it will treat people who are in remand differently than people who will be sentenced, having been freed once the charge is laid. That is one side effect of the bill as it is drafted.

Mark Lapowich, from the Canadian Council of Criminal Defence Lawyers, stated:

I do not think there will be any doubt . . . that there will be Charter challenges. In terms of specific challenges, we can envision challenges under section 7, deprivation of, life, liberty . . .; and a challenge under section 11(b), undue delay. We can see stay applications being brought; and, as was mentioned previously, for cruel and unusual, in terms of your specific point that you raised with respect to how horribly we have done in the past 50 years in relation to upholding treaties that we may be part of.

In other words, there will be Charter challenges on the basis that the sentence applied to one accused will be different from the one applied to another accused with exactly similar circumstances but in a totally different context. That situation offends the natural justice principle that people who are guilty of the same offence under the same circumstances should be given the same sentences and should bear the same consequences.

Let me quote, honourable senators, from another of those representatives from the objective groups that we normally hear from. The secretary of the national criminal justice section of the Canadian Bar Association, Eric Gottardi, said:

I think the prospects of constitutional challenges to the legislation are quite high. I think they could be many and varied. . . . I think the likelihood is quite high that that there will be constitutional challenges of different kinds.

That view is from the Canadian Bar Association.

We then heard testimony from the president of the Canadian Association of Elizabeth Fry Societies, Lucie Joncas, who said:

I am also concerned about whether such a practice would be considered constitutional. Given that, in 2000, the Supreme Court recognized that it was perfectly justified, and given that detention conditions at provincial level have deteriorated significantly, I do not see how the practice can be said to be no longer justified.

What are the court decisions that those experts refer to? They are essentially the unanimous court decisions of at least four appeal courts of provinces: the Court of Appeal of Quebec — from which I will quote immediately; the Court of Appeal of Alberta; the Court of Appeal of British Columbia; and the Supreme Court of Canada.

What does the Supreme Court of Canada rule on that principle of one for one — one day in pre-sentence custody versus one day once an offender is sentenced in regular prison?

I quote from the decision of R. v. Wust, a unanimous decision in 2000, at paragraph 45, which states:

In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. . . . The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. "Dead time" is "real" time.

In lay terms, what does that paragraph mean? It means that when someone is in remand custody, that person has no access to rehabilitation programs. The time that person is kept in pre-sentence custody cannot be counted as time toward conditional release — parole release. The person does not benefit from any of those programs that exist once an offender is in prison serving a sentence. The person experiences harsher conditions in pre-sentence custody than if that person is in jail once the sentence has been imposed by the judge. This is an important element and one that the Canadian Bar Association, under the signature of its chair, responded to on September 15, indicating that unjustified disparity in sentencing could result from the passage of Bill C-25.

The Canadian courts have upheld the principle that judges must take into account the different time and the quality of that time when prisoners are held under pre-sentence conditions as opposed to being held in jail. Let me quote the decision of the Court of Appeal of Quebec of 2005, a decision for which appeal was sought in the Supreme Court of Canada, which appeal was denied. In other words, that decision of the Court of Appeal is seen by the Supreme Court of Canada as being definitive. I quote from paragraph 40.

Thus, there are two primary reasons for this practice: the harsher conditions of interim detention and the impossibility of being granted parole during this time. That is why interim detention has become known as "dead time."

One of the most eloquent conclusions of that decision is found at paragraph 42.

Furthermore, the 2 to 1 ratio cannot be considered an advantage for the accused.

This is very important. Some people have the perception that the two-for-one or the one-for-one-and-a-half is a benefit, a premium. With that option comes the perception that it can be stretched, but this is not what the court has ruled. The British Columbia Court of Appeal ruled on a similar matter last year with regard to a decision in August 2008 on the case of R. v. Orr. I quote from paragraph 20 of the decision.

A lesser credit, generally in the ratio amount of one and a half-to-one seems more appropriate where the offender has been held for the pre-sentence period in an institution where post-sentence type programs are available. A refusal by a sentencing judge to allow any credits seems to me an erroneous approach having regard to the majority of existing authorities in Canadian appellate courts and the Supreme Court of Canada.

That is the most recent decision.

In other words, it has been established quite clearly that you have to maintain a balance between the time served in pre-sentence custody and the time served in prison. This bill equates the one-to-one challenges that form the fundamental principle of Canadian courts — the Supreme Court of Canada and all the provincial appellate courts — to rulings to maintain a relationship to the one-for-one principle.

It is easy for public opinion to support the one-for-one principle, but it violates one essential principle: Those in pre-sentence custody do not have the benefit of programs available for rehabilitation to reintroduce them into society. We want released prisoners on the streets to behave like good Canadian citizens.

Honourable senators, that is my first point. There are two other sections of the bill for which the constitutionality has been raised. One was raised by Senator Baker yesterday, the proposed section of the bill that allows the judge, in imposing that kind of sentence, to withhold the reasons. We all know that a sentence is appealable. It is a fundamental principle just as you can appeal the principle that you are found guilty. Those are the fundamental principles of our common-law criminal system. This bill takes away the obligation of judges to justify and explain the reasons for the sentence. That would go against that fundamental principle of our system, and there is no doubt that could be challenged in the court. I will not elaborate by quoting cases in the Supreme Court of Canada because the jurisprudence is clear.

There is another aspect of the bill that could be open to a court challenge, and that is a point Senator Nolin raised with one of the expert witnesses, namely, the arguments as to why a person should be detained in pre-sentence custody. The testimony we received from Mr. Munson on this is clear. If it was interpreted differently than what we were told it could be interpreted as, that could be open to challenge.

There are at least three aspects of this bill that raise important fundamental constitutional issues. That is my first point.

My second point, honourable senators, is that this bill will create more dangerous conditions in Canadian prisons, endangering the health and life of the inmate population as much as the personnel charged with the responsibility of operating the prisons. I am not inventing this situation. We had the benefit of hearing from the Canadian prison ombudsman, a person who is neutral and is there to look into the prison system, receive complaints, evaluate the context into which the prisons operate and make recommendations.

We heard from Mr. Howard Sapers, the Correctional Investigator of Canada, on September 30. Here is what Mr. Sapers testified during the study of this bill. He said:

. . . Bill C-25 will likely lead to a significant increase in the offender population managed by the Correctional Service of Canada.

I underline "a significant increase in the offender." He continues:

A significant increase in the federal inmate population will affect the safety and security of that population, as well as individual inmates' ability to receive programs and services that will assist their timely and safe reintegration into their home communities.

Listen to this aspect of his testimony.

. . . the current level of tension and violence within Canada's penitentiaries is already excessive. For example, for the first quarter of this fiscal year, the most recent data available, the correctional service reported a staggering total of 2231 security incidents and 577 reported physical injuries to inmates. During this three-month period, the security incidents included assaults on inmates, disciplinary issues, inmate fights, medical emergencies, self-inflicted injuries and three deaths.

That was in three months. Multiply that by four and you will have at least 12 deaths, at least 10,000 security incidents and at least 2,000 reported physical injuries to inmates. Why? Because this bill, when it is implemented, will bring, according to the statistics we received from Statistics Canada justice division, 10 to 12 per cent more inmates into the prison population.

Again, I refer you to the testimony of the ombudsman. "A significant increase in the federal inmate population will affect the safety and security of that population, as well as individual inmates' ability. . . ."

I questioned Mr. Don Head, the Commissioner of the Correctional Service. I have his testimony here. I tried to get from him the percentage of the so-called increase in the Correctional Service of Canada budget that will be devoted to dealing with that influx of 10 per cent more inmates and the consequences that it will have on the safety and the health of inmates and personnel. Here is what I got. Mr. Head answered:

In terms of disclosing the numbers, at this point I cannot disclose them because they are considered to be cabinet confidence.

In other words, honourable senators, we were told that this information was out of our reach in order to determine if this bill would have a severe impact on the health and life of the inmate population, with the proper balance of budgetary investment to maintain the current level of safety, which is critical according to the ombudsman who reported to us.

This is important because it deals with the kind of approach we should have regarding the inmate population. It would be easy, honourable senators, to mount public opinion against the inmate population. "Let us keep them in prison. Let us lock them somewhere and we do not want to hear about it." However, we need to try to understand who those people are. Are they all the Clifford Olsons of this world? Are they all criminals who are beyond the reach of rehabilitation or are there different kinds of citizens among them who are victims themselves, in a way, as a result of the circumstances of family, education, birth and so on?

I want to draw to honourable senators' attention that this bill will have a disproportionately severe effect on the vulnerable populations in the prisons. Who are they? It will be surprising for you, honourable senators, to understand that it will be the offenders suffering from mental disorders.

The population of our prisons is composed mainly of Aboriginal people. About 20 per cent of Canadian inmates are of Aboriginal origin. They form 3 per cent of the Canadian population and yet they form 20 per cent of the inmate population. In Saskatchewan, it is as high as 80 per cent and above 50 per in Manitoba.

In other words, we are dealing with offenders with significant social backgrounds. One cannot just say, "We will lock them up and forget the key and, when they get out, everything will be fine."

Again, I quote from Mr. Sapers, the ombudsman, who reported that:

This is of importance to the study of Bill C-25 because offenders with mental illnesses and cognitive difficulties are often held in pre-trial custody. We know that the prevalence of offenders with significant mental health issues upon admission has doubled in the past five years.

In fact, another witness stated that the ". . . Aboriginal adults admitted to remand custody increased by 23 per cent compared to a 14 per cent increase in the total remand admission rate over that same period."

In other words, we are putting more Aboriginal population in prison and remand. This is a serious problem, honourable senators, if we add that to the people suffering with mental disorders. The problem with people who are affected by mental disorders is that, as Mr. Sapers stated, "Federal prisons are now housing the largest psychiatric population in the country. . . ." It has doubled in the past five years. If one was to ask where are the majority of the Canadians who suffer from psychiatric problems, the answer would be that they are in prisons. They are not in psychiatric institutions or under the kind of care that one would like to have if someone in their family suffered from a psychiatric disorder.

Mr. Sapers also stated:

. . . despite the need, the capacity of the federal correctional system to respond to and treat mental illness is largely reserved for the most acute or seriously chronic cases — those receiving psychiatric treatment in one of the five regional treatment centres. Most other mental health problems receive limited clinical attention, at best.

This means that, when those people have served their time, they are released onto the street with no real capacity to reintegrate into a normal course of life. It is so much so that the accessibility to rehabilitation has been severely cut by the lack of funds.

Let me quote from Mr. Zinger, the Executive Director and General Counsel of the Office of the Correctional Investigator. He testified at the committee:

The Correctional Service allocates only two per cent, under $41 million of a $2.1 billion total annual budget, to offender programming.

For now, offenders have to contend with long waiting lists for programs and with cancelled programs because of insufficient funding or lack of trained facilitators.

They also have to deal with delayed conditional release because of the service's inability to provide the timely programs they require.

They must therefore serve longer time before parole consideration.

In other words, there is not enough capacity to offer the programs that would help those inmates to reintegrate into normal life.

Honourable senators, you will understand those aspects of Bill C-25, outside the hoopla of the political game of name-calling and trying to address emotion rather than the substance of this bill, is very serious.

I will conclude by referring to another witness whom we hear from very rarely at the Standing Senate Committee on Legal and Constitutional Affairs. I have been serving on that committee for 12 years now and we have never heard a representative of the Crown counsel. Why? Of course, the Crown counsel is the Department of Justice, either provincial or federal. It is the government. This time, we heard from the President of the Canadian Association of Crown Counsel, Mr. Jamie Chaffe. It was extraordinary to have him testify. He said that, from his association's perspective, it was certain that there would be an increase in the workload in the bail system. That could only be reasonably expected since part of the sentencing process would be imported into the bail hearing itself, which would likely be fully litigated by defence counsel and the Crown. In other words, by trying to alleviate the condition in the remand centre, we will be clogging the bail court.

Mr. Chaffe was questioned by all of us around the table because it was such an important element to consider before supporting this bill. We thought this information had to be shared with all senators in this chamber before voting on this bill.

I do not doubt that the intention of the government to try to frame the discretion of the judges is a legitimate objective.

However, when it is framed in a way that there are unintended consequences in the system, either in the courts by clogging the bail courts or in the prisons by creating more dangerous conditions, and by putting the weight on those who are the most vulnerable, the result might not be the one contemplated at the beginning. There has to be the proper commitment of budget and human resources, and the proper capacity of monitoring such that this initiative will be sound, humane and will serve the objective, which, as Senator Wallace has said, is to increase safety and security in Canada.

Honourable senators, that might be a different tone than what you have heard in the hoopla surrounding the debate on this bill. However, those are the serious considerations that I thought were useful to bring to your consideration before you vote on this bill later today or this week.

Hon. Jerahmiel S. Grafstein: Honourable senators, if Senator Watt is to enter the debate, I want to ask some questions.

Thank you, Senator Joyal for that presentation. This topic is not new to this chamber or the committee.

In 1994, the Minister of Justice Allan Rock — I see a senator on the other side nodding in agreement — who came from Toronto, raised the issue for the first time because of the overcrowding of the court system in terms of bail, remands and prisons. The rationale for that decision taken by the Minister of Justice was that the court system and jails in Toronto were overcrowded. It was going from bad to worse. There was agreement on both sides at the time that this bill needed remediation.

Having said that, it is my understanding that the court system in Ontario — the province I represent — is worse today than it was then. I look at other members from Ontario. They should take a look at this question before they opine on this bill. I think they will come to the same conclusion. The court system in Ontario is worse today in terms of clogging the courts, reasonable remands and bail. Prisons are also more crowded today than they were 14 years ago.

Did this evidence come forward to the committee as to whether there were budgets available at the provincial, municipal and federal levels to expand space availability in prisons that will be required if this bill goes into effect?

Senator Joyal: Honourable senators, I will quote Ken Crawford, corrections staff representative from the Winnipeg Free Press on the sixth of this month:

All provincial jails within this province are presently overcrowded. . . . Our institutions are at the breaking point.

The honourable senator was talking of Ontario; this article is from Manitoba. The newspaper was reporting about a mutiny in the correctional centre in Brandon. The article continued:

They'd like to see trailers to house at least 200 people in order to ease overcrowding. The trailers can house 20 to 60 people, said the union

The article goes on to quote Peter Olfert, Manitoba Government and General Employees Union president:

(The province) are looking as moving as quickly as they can to provide portable units.

In other words, this problem is not peculiar to Ontario. It is the same in Manitoba, according to what I read. I would say it is the same in Quebec.

If I remember correctly, in June, a front page article in La Presse described conditions in the provincial prisons. Although some provinces might have announced budgetary initiatives, construction will not keep up with the increase of population we will experience by adopting minimum sentences, or by the fact that remand population will increase. This increase is not because people want to stay in prisons, but because cases are more complex. That is the witness testimony we heard. Cases are more complex, hearings are longer and personnel in the courts are not always available. A clogging of the court system exists generally, and it needs a massive injection of funds.

We have to take into account that element of reality with all the bills we are requested to vote on. We continue to add to a system that is already cracking all over the place. At a point in time, we must understand that what we do may have an unintended adverse effect because we are creating additional pressure in the whole system.

Senator Grafstein: Honourable senators, I have another question relating to Toronto and my province of Ontario. It is my understanding that the urban Aboriginal population in Toronto is the largest in Canada in absolute numbers. While there is a problem in Regina, Winnipeg and other places in the West, the largest problem in quantitative terms is in Toronto.

Senators from Toronto will know the statistics well when we talk about the homeless. At least two thirds of the homeless on the streets in Toronto are Aboriginal. Of the Aboriginal community on the streets, about two thirds of them — maybe more — are on the streets because of psychiatric or emotional problems. This information is confirmed in a report.

Again, we have a more intense problem in Toronto. I assume the committee sorted this problem out as well. When we come to the question of bail, remand or incarceration, Toronto now has probably the largest proportion of Aboriginals convicted in Canada without any remediation.

Did this issue arise in the committee study? Have you any comments about that issue?

Senator Joyal: We did not hear any witnesses from the Aboriginal community. I want to put that information on the record. We did not hear representatives of the Assembly of First Nations, other national groups that represent Aboriginal people or provincial groups like the Cree or Innu of Quebec.

The issue came to us as a side issue. As I mentioned earlier, we will create additional pressure on the system. Our colleague, Senator Watt, who intends to speak this afternoon on this issue, is a member of the committee. He has raised this issue regularly with the witnesses. At a point in time, that problem must be addressed. It cannot be ignored. It is the major problem of the Canadian inmate population.

At this stage, we could not study more than the purpose of this bill and the reference we received from the Senate, which was to study the scope of the legislation.

Senator Grafstein: Finally, we have been confronted in the past — I look at new senators in regard to this problem — with a situation in the criminal justice system and other places where a bill is not in sync with the economic reality. I suspect and assume this bill is not.

Did the committee — all members of the committee — give any consideration to suggesting an amendment that will allow the bill not to come into effect if it is passed until such time as Her Majesty the Queen and cabinet can be satisfied that there are adequate facilities both at the court level and in the prison system to accommodate the increase in prisoners incarcerated?

Senator Joyal: The answer is no, honourable senators.

I mentioned earlier, Don Head, Commissioner of the Correctional Service of Canada appeared as a witness. He is the "big boss" of the prison system in Canada. We tried to obtain the figures and statistics on how much of the budget will go for bricks and mortar and how much will go to rehabilitation programs, training, personnel, et cetera. We could not obtain proper detail on those figures. Mr. Head told us those figures were deemed confidential documents. To answer your question, yes, the figures exist somewhere, but they were not made available to us.

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