Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 47 - Evidence
OTTAWA, Thursday, February 13, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-53, to amend the Prisons and Reformatories Act, met this day at 10:32 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good morning, honourable senators. We are here to consider Bill C-53, to amend the Prisons and Reformatories Act.
We have two witnesses with us this morning from the Solicitor General of Canada.
Please proceed.
Mr. Robert Cormier, Director, Corrections Policy, Corrections Branch, Solicitor General of Canada: Madam Chair, I am pleased to be here today to speak to the committee briefly about Bill C-53, to amend the Prisons and Reformatories Act. My colleague and I would be pleased to answer any questions you may have regarding the bill. First, however, I will begin with some brief opening remarks.
Essentially, the bill will benefit the provinces and territories by providing them a more flexible legislative framework for temporary absence -- TA -- programs. There are five key points in Bill C-53 which I would like to review briefly.
First, there will be the addition of a statement of purpose and principles for TA programs. This statement is modelled on the one included in the Corrections and Conditional Release Act when it was enacted in 1992 and which applies to parole and TAs from federal penitentiaries. From our federal experience, having a statement of purpose and principles has been valuable in providing a consistent framework for conditional release programs.
The second key point in the bill is that it will increase the maximum duration of TAs from 15 to 60 days, with explicit power to renew the temporary absence following an assessment of the case. This will give correctional authorities the greater flexibility they require to manage their correctional populations while providing a safeguard of reassessment where a TA is being reviewed.
The third key point in the bill is that it will provide explicit authority for individual jurisdictions to create additional types of TAs beyond the three basic ones currently in legislation -- that is, medical, humanitarian, and rehabilitative purposes -- so long as these new types of TAs are consistent with the overall purpose and principles. Again, this provides greater flexibility but within a consistent and coherent framework.
The fourth key point is the addition of explicit provisions for cancelling, terminating or revoking a temporary absence, as well as authority to apprehend and return to custody. The current legislation is silent on this point. Since the proper action in cases requiring termination and revocation is important for public safety, it seemed desirable to address this in legislation.
Fifth, there will be authority in the bill for individual jurisdictions to establish criteria regarding eligibility for temporary absences. For example, a jurisdiction may restrict eligibility for TAs based on sentence length or type of offence. A jurisdiction could also establish criteria that link conditional release programs. For example, an offender who has parole revoked would not be eligible for a temporary absence, except medical TAs.
I might just note that these amendments were approved by provincial and territorial ministers responsible for justice when they met in May of 1996 and clearly have broad support.
In summary, then, Bill C-53 will allow the flexibility for individual jurisdictions to tailor their TA programs to meet their needs while still maintaining national consensus around key elements.
This brings to a close my brief opening remarks. We would be pleased to respond to any questions that members of the committee have.
Senator Beaudoin: I think you have already answered my first question. All provinces, including Quebec, have said yes to this bill.
Mr. Cormier: That is correct.
Senator Beaudoin: I am in agreement with the purpose of this bill. Why do you refer to lieutenant governor instead of the lieutenant governor in council? Is there a reason?
Mr. Normand Payette, Senior Policy Analyst, Corrections Policy, Corrections Branch, Solicitor General of Canada: You will see, senator, that the definition of Governor General is set out in section 2. It is not in the bill, but it is in section 2 of the Prisons and Reformatories Act. The full definition is found therein.
Senator Beaudoin: Does it include the cabinet?
The Chair: I think the question, Mr. Payette, is this: In the full definitions, does it say "lieutenant governor in council"?
Mr. Payette: Yes, that is what it says.
Senator Beaudoin: It says "in council" in the main act.
Mr. Payette: It is in the full definition.
Senator Beaudoin: My next question relates to the Charter of Rights.
[Translation]
I do not see any problem except in clause 7 concerning the principles of fundamental justice, but I think that you meet them properly. Essentially, you want to grant freedom rather than restrict it. I imagine that this was considered by the Department of Justice for the purposes of the Charter of Rights.
Mr. Cormier: Yes, in terms of the principles, we reinforce the fact that the supervision must be the least restrict possible, first of all, and second of all, with regard to the duty to act fairly, we specify that when a decision must be taken regarding a prisoner, the latter must have an opportunity to present his comments before the decision is made in his case.
Senator Beaudoin: In these bills, I always find that we can improve our laws and of course we do so. What worries me more is the application of this kind of law in practice. That was my attitude regarding parole. I always said that it is not that the law is so badly written, but that it can be very badly applied in certain cases. There are people who are paroled who should not be according to the evidence.
This bill refers to provincial jails where the sentence does not exceed two years less a day. For federal offences, the sentence is served in a penitentiary where sentences are longer. In some cases, it could happen that the offence is subject to criminal law nonetheless. It may be rare, but someone could be sentenced for an offence under the criminal code and end up in a jail rather than a penitentiary. In that case, if the inmate is allowed to leave, we must act with prudence. There is nothing in the legislation about that.
Mr. Payette: You raise an excellent question. Right now, provinces grant consecutive temporary absences. Under the current law, temporary absences can be granted up to a maximum of 15 days. Now the law will allow the provinces to grant temporary absences, according to the type of absence it creates, up to a maximum of 60 days, but on condition that the designated authority wishes to renew the temporary absence and that the case be re-examined. You will see in this statement of purpose and principles that an attempt is made to reinforce the protection of society and that rehabilitation of prisoners must supersede other considerations. This is a way of setting standards that are minimal but that will apply throughout the country, standards that the provinces can adhere to.
There is no doubt that different offenders present different levels of risk, according to their category. That is the purpose of the criteria that the provinces will have to establish. An individual who has been paroled and whose parole is later revoked and who is sent back to an institution should not immediately be eligible for a temporary absence. That would be contradictory. There is a risk for the community in that case. The concerns that you have expressed have been considered in the drafting of this bill.
[English]
The Chair: For purposes of clarification, I can certainly understand a temporary absence for medical or humanitarian reasons. You may have a situation in which someone needs chemotherapy. That would be a medical reason. A humanitarian reason would be an aged parent needing their care, and so they are released in order to be able to provide that kind of care. Can you give us practical examples of where a prisoner would be released on a temporary absence for rehabilitation?
Mr. Cormier: Yes. One good example would be in the case of treatment for a drug addiction that would not be available in the institution but would be available in the community. Any treatment program for which the offender is suitable and judged to be a suitable risk for release into the community could fall under the rehabilitation category.
The Chair: As I understand, most of the individuals that we would be reintegrating would be on day parole. What other examples of reintegration would require a temporary absence?
Mr. Cormier: "Reintegration" is a very broad term. It refers to the successful re-entry of any offender going back into the community having served some period of time while in prison. In the case of temporary absences, they are used for shorter-sentence offenders who would not normally be considered for parole. The notion is that they are complementary programs, particularly with short-term offenders getting the temporary absences.
Senator Doyle: In the backgrounder to the bill, Madam Chair, in the third paragraph, we are told that the changes will bring the legislation into line with current practices. This is nearly a year old when it comes to us, and it has already been to the provinces. Were these practices current over a year ago before we even got around to looking at the bill?
Mr. Cormier: That reference to current practice has to do with the current practice of back-to-back TAs. Effectively, that is to say that the provinces are providing longer temporary absences by simply stringing 15-day temporary absences back to back. However, that is a problematic procedure.
In creating a maximum duration of 60 days, this bill provides a more legitimate basis for those sorts of longer temporary absences than are currently done using this back-to-back method. In that sense, it is allowing current practice, but within a better legislative framework.
Senator Doyle: Does that assume that by the time whatever we pass here today gets to the provincial institutions, it will be administered according to what is convenient rather than what is set forth in the bill? Now you have gone to 60 days in the provincial field. What would be to stop them from moving to 120 days? Is there nothing? I would hate to have this kind of handling on the issue of capital punishment if a group thought it was practical to reintroduce capital punishment. Until they got the legislation in hand, we might kill off a lot of Canadians.
Mr. Cormier: The intent here is to provide greater flexibility to the provinces. In the end, the way in which they use that flexibility rests with them. However, in extending the maximum duration to 60 days, we have included a provision requiring a reassessment of the case. This will require the provincial authorities to satisfy themselves that in fact this is a case deserving of an extension and can be safely managed in the community for another period, whatever might be proposed.
This framework allows intelligent operation of the temporary absence program by the provinces. We expect that is how it will be managed.
Senator Doyle: In other words, these are guidelines. They are not, in the sense of other bills that come through this committee, the basic rule in law, not necessarily to be always observed, but in the main to be wherever practical.
Mr. Cormier: We have set out a framework, including a statement of purpose and principles, intended to guide a consistent application of temporary absences in the provinces and territories. This is the intent of the legislation.
Senator Doyle: If this new, improved program was passed by the provinces in May, where has it been on its way here?
Mr. Cormier: I do not think it would be correct to say that it was passed by the provinces. The work done by the federal, provincial and territorial officials to develop proposals to address concerns in the Prisons and Reformatories Act with regard to temporary absences has been done since 1993. The results of the recommendations of that review went to the province and territorial ministers last May. They endorsed those recommendations. Of course, it still requires a change in the federal legislation with regard to the Prisons and Reformatories Act. It was prepared as a bill and introduced in the normal course of events.
Senator Doyle: That is what I asked you about.
The Chair: Senator, if I can give you that information, the bill was actually introduced in the House of Commons on June 18, 1996.
Senator Doyle: It has been waiting there.
The Chair: It has been sitting in the House of Commons until this week.
Senator Doyle: That is the answer I wanted. For a second, I was hoping I was wrong.
Senator Milne: I wish to follow up on what Senator Doyle said. If a temporary absence for up to 60 days is granted, you said it must be reassessed before another one is applied for. I think the operative term in there is that it "must" be. This bill provides that it must be reassessed. Is that so? Where is that in the bill?
Mr. Payette: Clause 7.4(1).
Senator Moore: It does not say "must".
Mr. Cormier: It says "on reassessment".
The Chair: Are there other questions?
Thank you, Mr. Cormier and Mr. Payette, for your presentation this morning.
Honourable senators, is there a feeling of the committee that you would like to deal with this bill in clause-by-clause and passage stage, or would you prefer to defer it until our next meeting?
Senator Milne: I am quite prepared to move that the bill be reported without amendment.
The Chair: Is that the general feeling of all senators here today?
Senator Beaudoin: I agree with the bill.
Senator Doyle: Provided, of course, that moving in such haste will not cause all kinds of consternation in the other place.
The Chair: Let me assure Senator Doyle that I will bring it to the attention of the other place that when good bills come before us, we can deal with great dispatch in this chamber.
Senator Milne: I move that the Chair report this bill without amendment.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: So ordered.
The committee adjourned.