Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence for October 6, 2010
OTTAWA, Wednesday, October 6, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:20 p.m. to examine the National Parole Board User Fees Proposal, User Fees Act, S.C. 2004, c. 6, sbs. 4(2).
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Senate Standing Committee on Legal and Constitutional Affairs.
[Translation]
As mandated by the Senate, we are meeting to discuss the National Parole Board's proposal to increase fees charged, pursuant to the User Fees Act.
[English]
We are therefore pleased to have with us from the Parole Board of Canada, Shelley Trevethan, Executive Director General.
[Translation]
Mr. Denis Ladouceur, Director, Clemency and Pardons and Ms. Anne Gagné, Chief Financial Officer.
[English]
Ms. Trevethan, I believe you have an opening statement.
Shelley Trevethan, Executive Director General, Parole Board of Canada: Yes, thank you very much. I am pleased to be here to speak on behalf of the Parole Board of Canada, which is seeking to increase the fee charged to process a pardon application. When we last appeared before you in June, we provided committee members with an overview of the current pardon system and process. Today my remarks will focus specifically on our proposal to ensure sustainability for the pardons program.
The Criminal Records Act was enacted in 1970 to ease, through the granting of a pardon, the legal disabilities and social stigma of a criminal record for those demonstrating the ability to live crime-free lives.
In the mid 1990s, a user fee of $50 was introduced to partially recover the cost of processing a pardon application. The board receives $35 of this amount, while the RCMP receives $15.
Although the fee has remained the same, inflation, processing costs and the volume of pardon applications have increased significantly. The number of pardon applications we receive has risen sharply in recent years, from an historical average of approximately 20,000 a year to more than 36,000 in 2008-09.
This increase demonstrates that interest in securing a pardon has grown. This increased interest is in part because the number of Canadians with criminal records has increased. Also, there is more scrutiny on an individual's past when applying for a job, securing a loan, volunteering, obtaining certain licenses or furthering an education.
The need to meet our legislated mandate for pardons has meant that the board has had to divert funds from its conditional release budget to address chronic shortfalls in the pardons program. Without an increase to the current fee, the pardon program will continue to be unsustainable.
Recent modifications to the Criminal Records Act have also increased the complexity of our operations and decision making, and will require additional resources. The board is committed to meeting its legislated mandate under the CRA, and we must seek a financially responsible solution to this long-standing problem.
The proposed increase was approved as part of the board's 2008-09 Strategic Review to respond to the financial pressures that threatened the ongoing sustainability of the pardons program. The board subsequently took the necessary steps to fulfill the User Fees Act requirements, including a comprehensive exercise to identify the exact costs for processing a pardon application, as well as a cost-benefit analysis.
For the exercise, we used methodology developed by the Treasury Board of Canada Secretariat and endorsed by the Office of the Auditor General. We also worked closely with a former Deputy Comptroller General of Canada, who co- authored the Treasury Board of Canada Secretariat costing guide and who is considered the foremost federal government costing expert in the country.
This costing exercise, completed prior to the implementation of Bill C-23A, amending the Criminal Records Act, and based on a partial cost-recovery approach, identified total direct costs to the board in the amount of $135 for processing a pardon application. Direct costs include elements such as screening and preparing cases for decision making, decision making by board members, records management and fee administration. With the addition of $15 for the RCMP, applicants would be charged a total of $150.
As required under the User Fees Act, the board also undertook consultations on the proposed increase. Due to privacy concerns, the board did not consult directly with Canadian citizens with criminal records but instead met with representatives of the National Associations Active in Criminal Justice, NAACJ, which represents offender advocacy groups. We also spoke with the Federal Ombudsman for Victims of Crime, the Canadian Association of Chiefs of Police and the Federation of Canadian Municipalities. The board also hosted an online consultation via its website, which was open to all Canadians.
During the consultation with the NAACJ, its members expressed concern about whether some applicants will be able to afford any increase, but mitigated this concern with support for a sustainable pardons program. NAACJ members also called for improved processing times, simplification of the application process and enhanced public information on pardons to follow from any increase in fee.
The board has taken actions to address the concerns expressed by the NAACJ members and will continue to address their concerns following the introduction of an increase to the user fee.
Issues raised through the online consultation were few, with only three responses received. These included a request to reduce the amount of the fee increase and another to waive fees in deserving cases. The cost to administer a waiver or a fee structure was considered but would be financially prohibitive and complex, would lengthen processing times and would conflict with the board's neutrality. Since that time, the government has decided to seek full cost recovery for the pardons program.
The board is currently working on a full cost-recovery scheme for processing pardons under the new system. This scheme will require the board to follow the provisions of the User Fees Act, including another costing exercise, cost- benefit analysis and a consultation process. Eventually, the board will seek approval for a further increase in the user fee.
In the interim, given the serious financial pressures currently facing the pardons program and with the new complexities introduced as a result of modifications to the CRA, the board is seeking approval for an increase to $150 per pardon application. If approved, the increase will be implemented this fall or winter, and we anticipate that a full cost-recovery system will be introduced sometime in 2011-12.
The capacity to process annual volumes of pardon applications in a timely and consistent manner will not only enable the board to enhance the quality of its program and meet its legislated requirements under the CRA, but will provide benefits to both applicants and Canadians in general.
A pardon frequently provides recipients with timely access to gainful employment, a key factor in an individual's rehabilitation. This access in turn helps to reduce crime and contributes to community safety. Access to employment as a result of a pardon also helps to reduce demands on the social assistance network, providing a benefit to all Canadians. Finally, measures to fund the pardons program through increased pardon user fees will reduce the use of tax dollars required to sustain the program.
In summary, to ensure the board is able to meet its legislated mandate, we seek approval for an increase to the board's component of the pardon user fee from $35 to $135, and that the new user fee of $150 be implemented following registration of the fee increase.
Thank you very much. I will be pleased to answer any questions.
The Chair: Thank you very much indeed. Colleagues, before I turn to Senator Wallace for the first question, I will tell you that we have representatives of the RCMP and the Correctional Service of Canada in the room. They can come to the table if we have questions for them.
Senator Wallace: Thank you, Madam Chair, and thank you very much for your presentation.
I have a couple of questions to help me understand the present funding to support this program. My understanding is that the current funding comes from the user fees that are currently charged — the $50 per application. You also indicated in your presentation that, at times such as in the current situation, you are required to divert funds from the board's conditional release budget. Are those the two sources of income that presently fund this program?
Ms. Trevethan: Yes; right now the board receives about $850,000 from the $35 user fee, based on the number of applications we receive. In addition to that source, we provide additional money through the conditional release program. We estimate that the cost to operate the program right now is about $5.6 million. That estimate includes both direct and indirect costs. The direct cost of operating the program is about $3.2 million.
I will ask Anne Gagné if there is anything else she wants to note.
Anne Gagné, Chief Financial Officer, Parole Board of Canada: That pretty well covers it. That is good.
Senator Wallace: You intend to implement or seek a full cost recovery of the program. By that, do you mean a full recovery solely from the user fees, and is that cost recovery in respect to the direct and indirect costs, or only the direct?
Ms. Trevethan: We are taking a phased-in approach, so in this case we want to move in the interim to $150, which will cover the direct costs under the old legislation. We started this approach prior to the new legislation. The government has decided to move toward a full cost recovery, which will include both direct and indirect costs.
Senator Wallace: When the program is fully implemented and further application is made, then you hope to be at that point of full cost recovery.
Ms. Trevethan: That is correct.
Senator Wallace: I have a copy of your presentation in front of me, and, as you said, the measures to fund the pardons program through the increased pardon user fees will reduce the use of tax dollars, but the intention is not only to reduce but ultimately, to eliminate it entirely; is that true?
Ms. Trevethan: That is correct. In the end we will move towards a full cost recovery if that program is brought forward.
Senator Wallace: Obviously, this increase in fees will have an impact on those who have to pay that fee. In this interim measure, the fee will increase from $50 to $150 and then ultimately, perhaps beyond that amount.
Do you have any opinion as to whether that increased fee will discourage or limit in any way the number of pardon applications that will be made? Will it create a burden on those who pay the fee to the extent that they may not apply for pardons? Do you have any thoughts on that issue?
Ms. Trevethan: In the discussions with NAACJ, some of those concerns were raised. The board obviously does not have any control over the volumes that may come in, but our feeling, too, is that the benefit of a pardon, given the possibility of increased employment, et cetera, will probably still have real value to people.
Senator Wallace: The increased fees are required to provide an enhanced level of service, and not simply to maintain the service that exists today? It is my understanding that you are planning to enhance the level of services that are provided through the system.
Do you care to add anything further to that effect? With the $150 fee, presumably a better system will be provided.
Ms. Trevethan: For many years now, the board has had an unsustainable pardons program. The $50 fee, of which we receive $35, has been in place since 1994. There has not been a fee increase since then. We have always received only a certain portion of the fee, and the $150 fee covers only the direct costs and is based on providing direct costs under the old legislation.
With the new legislation, the program will cost more to implement. However, our plan with the $150 fee is to try to provide good-quality service. We have developed service standards that we want to implement to provide services in a more timely fashion. Also, we want to simplify the guide that we are using. We have been trying to make it more plain language, and trying to ensure that clients better understand the services they receive, hopefully, through outreach.
Senator Wallace: It sounds like an enhanced program through the additional revenues.
Ms. Trevethan: The $150 fee provides us with sustainable funding to provide what we are providing right now.
Senator Wallace: Thank you very much.
[Translation]
Senator Boisvenu: I will ask a few technical questions so as not to drag out the meeting. The $150 amount you are asking for covers about half the cost of processing an application, right?
[English]
Ms. Trevethan: Yes, that is correct.
[Translation]
Senator Boisvenu: That means that taxpayers will continue to cover up to 50 per cent of the cost of former convicts' pardon applications. Is that correct?
[English]
Ms. Trevethan: Yes; we are saying that the $150 will cover the direct costs, which are about 50 per cent of the costs. If we move towards full cost recovery, then the fee will cover the full cost. Right now, we receive only $35, and we are subsidizing more costs now, so the $150 will cover more.
[Translation]
Senator Boisvenu: Do you have any studies showing that charging a certain amount of money will discourage some people from applying for a pardon?
[English]
Ms. Trevethan: No, I do not think we have any studies that look at pardon applicants. In general, we do not go out to pardon applicants, due to privacy issues, to begin with. They typically are not interested in coming forward, so it would be difficult to identify them and then try to conduct a study of that kind.
[Translation]
Senator Boisvenu: Regarding the $150 amount, how does Canada compare to countries like England, France or the United States? Are we charging more, or perhaps less?
Denis Ladouceur, Director, Clemency and Pardon, Parole Board of Canada: Internationally speaking, compared with Commonwealth countries, Canada is charging more than the average.
Senator Boisvenu: What countries does Canada compare to?
Mr. Ladouceur: If we take England, for instance, its pardon-granting process is automatic, and pardon applicants are not required to do anything as part of their application. That is because every conviction has a time limit attached to it, and once that time limit is met, the conviction is set aside, dismissed, so to speak.
In Australia, it varies by state. New Zealand also has an automatic process, and it all depends on the offence and the sentencing. As far as I know, strictly speaking, no fees are charged.
Senator Boisvenu: I have one last question. According to the 2007 statistics, 99 per cent of applications were approved. Is the percentage of approved pardon applications in Canada higher than the international average?
Ninety-nine per cent of applicants receiving a pardon is close to 100 per cent. Are other countries less generous in this regard?
Mr. Ladouceur: I do not have the statistical data on hand, but if I base myself on the processes used elsewhere — and here I am talking about countries like England, New Zealand and Australia — they have automatic processes in place. There is no vote process like we have here. On the Board, it all depends on the time served and the offence involved. Once the predetermined period is completed, the conviction is automatically dismissed.
Senator Boisvenu: There is no analysis as such?
Mr. Ladouceur: Not at all.
Senator Carignan: My first question is along the lines of what Senator Boisvenu asked. I am a lawyer and I have never had to file a pardon application for a client or for myself.
Is it a complicated process? Is the help of a lawyer necessary if a client is eligible for legal assistance? If the process is complicated, have you considered simplifying it?
You have mentioned countries that have an automatic process in place. It seems to me that, for certain types of crimes, pardon should be granted automatically. That would help reduce all the bureaucracy involved in the process, especially if pardon applications are being approved in 99 per cent of cases. That figure is probably so high because a lot of crimes are not deemed to be violent and dangerous.
Have these points been considered in trying to reduce the bureaucracy and the process cost?
[English]
Ms. Trevethan: At the board, there has been a great deal of examination of the pardons program for many years. As I mentioned, since the program was put into place, it has pretty well always been unsustainable. That was one reason we introduced the $50 fee to begin with. There have also been a number of suggestions for other ways to streamline the process.
Internally, we have found many ways, such as through technology, to try to improve processing. We have completed workflow studies. We have developed standards for all our people working in the program. We have recently finished another workflow study. There have been discussions, for instance, of whether processes should be automatic or not. There have been various studies as to the best approach to take. A lot of work has been done in this area. At this point, the approach is to move toward increasing the user fee. Nothing has been put forward formally through government to try to do anything different than that.
[Translation]
Senator Carignan: Have you recommended to the government ways of improving the process or some kind of a reform that would prioritize automatic processes for certain types of crimes? We know that the government is always looking for ways to reduce costs and to increase administrative efficiency.
[English]
Ms. Trevethan: As I mentioned, at various points over the years, there have been discussions on those points. None of them have moved forward to the point of making the legislative changes, but there have been a number of discussions as to directions to try to improve those things.
Internally for the board, our role is to try to ensure that we follow the legislation as it is written. We have tried to make the program as efficient as possible within the legislation. Those are the approaches that we have been taking.
[Translation]
Senator Carignan: You talked about the program being funded in part by diverting funds from the conditional release budget to address chronic funding shortfalls. I take issue with that approach because it seems to me that if funds from the conditional release budget are being used elsewhere, it is perhaps because cuts are being made in another department.
Has the fact that you diverted sums from the conditional release budget adversely affected those releases or resulted in a decrease in services or in the monitoring of conditional releases?
[English]
Ms. Trevethan: That has always been our concern, namely, to ensure good-quality decision making in general, whether it is for the conditional release side or the pardon side. We have a legislated approach. Most of our money is spent on salaries, so we do not have a lot of flexibility in choosing other mechanisms to try to fund the pardons program. We need to meet the mandate on both sides.
From the conditional release side, for instance, there are some areas where we have had to make decisions. Decisions as to where to put the funds has impacted to some extent on things like staff training, board member training and potentially some outreach.
[Translation]
Senator Carignan: Can you assure me that the additional funds will be used for the pardons program and not for the conditional release program that you have thus far been running more or less efficiently?
[English]
Ms. Gagné: All the funds collected through the user fees will go directly to the pardons program and the pardons program only. It is based on something called vote netted revenue. We have to report our expenses every year and that the expenses are directly attributable to the pardons program to be able to access our revenues.
Senator Lang: First, I will ask for clarification in your comments. I believe you said direct cost for the program is $3.2 million. Including indirect costs, the total is $5.6 million. Is that correct?
Ms. Trevethan: Yes.
Senator Lang: Is the total of $5.6 million for the program presently in place, or will that money be enough to run the program when the new legislation and regulations are implemented?
Ms. Trevethan: That amount is to run the program under the old legislation.
Senator Lang: Under the old legislation?
Ms. Trevethan: That is correct.
Senator Lang: Do you have any estimates of what the new regime under the new legislation will cost?
Ms. Trevethan: We are in the midst of a costing exercise to determine that cost. One thing we have been doing with the new legislation is putting into place the policies and work processes. Mr. Ladouceur is in the midst of preparing workflow processes. On the other side, we are looking at the actual cost to implement the new legislation. We are only about three months into the work right now, so we do not have the final figure. That is part of the next phase.
Senator Lang: Looking at the figures that you gave us, if we take the average of 36,000 applicants a year and the $5.2 million, your costs are approximately $145 per applicant. Is that correct?
Ms. Trevethan: The direct costs are $150. Our cost is $135. With the $15 for the RCMP added, direct costs are $150.
Senator Lang: When will you come back before us for another increase in the schedule?
Ms. Trevethan: Right now, we are looking at all the costs. We have to go through the User Fees Act again, so we need to develop the costs, prepare the cost benefit analysis, conduct further consultations again on whatever the new fee is and then go through the whole process again.
Senator Lang: We will probably see you within the next four or five months, then?
Ms. Trevethan: Sometime in 2011-12 I think.
Senator Lang: I think we should evaluate this approach. If we accept the fact that the program will be user pay, then maybe the government should have the responsibility of preparing the regulations and not having to go through this exercise.
The Chair: I think we are stuck with the law as it is now written.
Senator Lang: That is another issue.
Certain individuals may not be able to afford a pardon and it may well be warranted. You stated that during consultations with the NAACJ, "its members expressed some concern about whether some applicants would be able to afford an increase but mitigated this concern with support for a sustainable pardons program."
Perhaps you can explain what that statement means.
Ms. Trevethan: During the consultation process, as I mentioned, we met with a number of people from the national associations that are active in criminal justice, as well as victims' organizations and others. In general, the offender advocacy groups do not necessarily want to see an increase in the user fees, but I think they also recognize that right now our program is not sustainable. At times, it can take many years for a person to receive a pardon.
From the consultations with them, I feel that they understood the dilemma that the board was in, and felt that we were taking a reasonable approach, given that we would also ensure we had service standards in place so people would receive their pardon quicker. We would simplify the information guide and provide better information to people on how to complete a pardon application so, potentially, they could come straight to the board versus going through a third party, which would also cost them a significant amount of money.
Senator Joyal: Welcome. I have listened to you and read your brief. I am not sure at all that you have satisfied section 4 of the User Fees Act. Do you have a copy of the User Fees Act with you? Can you take it out? The heading above section 4 of the act is "Consultation Requirements." In French, it says "Consultation obligatoires" It seems that it is something you must do before. Subsection 4(1) states the following:
Before a regulating authority fixes, increases, expands the application of or increases the duration of a user fee, it must —
In French, it says "doit." The subsection goes on to state:
(a) take reasonable measures to notify clients, and other regulating authorities . . . ;
(b) give all clients or service users a reasonable opportunity to provide ideas or proposals for ways to improve the services . . . ;
. . .
(e) establish an independent advisory panel to address a complaint submitted by a client regarding the user fee or change; and
(f) Establish standards which are comparable to those established by other countries with which a comparison is relevant and against which the performance of the regulating authority can be measured.
In your brief, you say that "due to privacy concerns, the board did not consult directly with Canadian citizens with criminal records." You said it was "due to privacy concerns." Did you receive an opinion from the Privacy Commissioner that you should not proceed with consultation of inmates who are eligible to apply for pardon?
Ms. Trevethan: We worked with our legal people, as well as with Justice Canada's legal staff, regarding what was reasonable in terms of what we wanted to do. We ended up speaking with offender advocacy groups. We also had online consultation where any member of the public could submit a complaint if they wanted to. We were ready to create an advisory committee, but we received only three comments, and none of them were complaints, so we did not go to the next step of creating an advisory committee. Also, the John Howard Society and Elizabeth Fry Societies included links on their sites to ours. We obviously provided information to all members of NAACJ, so all of them put up posters for their clients. Our feeling, and that of the legal staff, was that approach was reasonable to ensuring that people had an opportunity to be consulted.
Senator Joyal: However, you did not satisfy the letter of the act, because the letter of the act states clearly, "give all clients or service users a reasonable opportunity to provide." Clients are clients, and, in this case, clients are inmates, in my opinion.
Why did you go through representative organizations or defence organizations instead of directly to the clients in this case, and provide questionnaires to inmates who would be eligible for parole to give them an opportunity to answer directly? Statistics Canada protects the privacy of people who answer their questions, and you can protect the privacy of people who answer such questions. In my opinion, you could get an answer directly from inmates without identifying the person. There is that possibility. There are methodologies to protect privacy. I do not understand why you barred yourself from consulting directly with the inmates, in accordance with the act.
Ms. Trevethan: In fact, the consultation is broader than inmates. Inmates are from the federal population, but many people who never go to an institution could apply for a pardon, so it does not capture that population.
The User Fees Act says to "take reasonable measures." "Reasonable" has to take into account what is feasible, as well. From the board's perspective, paying that kind of money for a full-fledged examination of the entire Canadian population would not have been feasible, either.
Senator Joyal: Since some people were not reachable, you decided to exclude them. That where I have a problem with your proposal. I am not against the principle of adjusting the costs. I understand that. The fee was established in 1970s. Nothing today costs what it cost in 1970. That increase is reasonable. I am not questioning the reasonableness of the initiative. I am questioning the fact that you did not satisfy, in my opinion, the letter of the law.
Ms. Trevethan: The letter of the law was "reasonable," so we took what we said was a reasonable approach, including what our lawyers said was a reasonable approach.
Senator Joyal: Yes, but you did not consult with the Privacy Commissioner, and yet you invoke privacy concerns. That is why I do not follow you. You said "due to privacy concerns." If today you were able to table an opinion from the Privacy Commissioner to the effect that you were invading the privacy of inmates, I would agree with the course you took. However, you have not convinced me today that alleging privacy concerns gives you an open-ended way of consulting Canadian citizens with criminal records through national associations active in criminal justice.
You did not provide us with any of the opinions of those various associations whereby we could assess the opinion you received. As my colleague Senator Lang mentioned, some inmates would be barred from asking for a pardon, and I understand that if an inmate deserves and receives a pardon, it alleviates the taxpayer burden because the person goes back into private life.
I am not satisfied with your answer to meeting the standards included in the User Fees Act because you did not supply us with any proof that the privacy concern you allege concerning not consulting directly with inmates has been discussed with the federal institution that protects privacy.
Ms. Trevethan: There were many reasons for not going in that direction. Privacy of individuals seeking pardons is one example of why we did not go that route. We ended up deciding that it would be reasonable to provide any Canadian who wanted to an opportunity to respond online. We felt that approach was reasonable to seeking people's opinion on the fee.
Senator Joyal: I am a Canadian. I am not in a position to answer whether I would be able to pay $150 if I was an inmate. How can you ask the general Canadian population to give an opinion on that when they do not have a direct interest or a capacity to answer because they are not in the condition that your clients find themselves?
The Chair: Senator Joyal, may I ask a supplementary question?
Senator Joyal: Yes.
The Chair: How long after a sentence is completed must one wait to apply for a pardon?
Ms. Trevethan: It depends on the offence. If it is a summary or sexual offence, it would be five years for summary, and ten years for the other. Even if offenders have been in prison, they have that period of time after they complete their sentence potentially to obtain the money they require.
The Chair: I am sorry to have interrupted. Senator Carignan also has a supplementary question. Do you want to continue, Senator Joyal?
Senator Joyal: Senator Carignan can go ahead, if it is on the same issue.
[Translation]
Senator Carignan: I would like to bring your attention to subsection 4(b), which states the following:
Give all clients or service users a reasonable opportunity to provide ideas or proposals for ways to improve the services to which the user fee relates.
I can understand that clients may not have done this, but your service apparently has. It seems that your proposals have not come to our attention. Could you send us some documents or the report you drafted outlining the actions you have taken or your suggestions for improving services to which the user fee relates? Could you point out solutions for reducing the bureaucracy involved, especially when it comes to determining which offences the automatic pardon could apply to?
I have heard people say that they had completely forgotten that they had a criminal record. Twenty or thirty years later, they discover that they do have one. Automatic pardons for certain types of offences would be a plausible solution. If this could be included in the recommendations, we would like you to let us know.
[English]
Ms. Trevethan: We can respond and provide you information that we put together.
Senator Wallace: Perhaps I will phrase this question to come back to your presentation. To Senator Joyal's point, when we look at section 4(1) and the reasonable measures that have to be taken to notify clients and to provide all clients with an opportunity to provide ideas, I think it is obvious that you will not contact all "clients," but there must be reasonable steps taken that those clients have some awareness of what is taking place with the application.
You point to the privacy concerns as the reasons why you chose to consult with representatives of the National Associations Active in Criminal Justice. Those associations, as you pointed out, represent offender advocacy groups. On Senator Joyal's point, I tend to think that whether deciding to do that because of privacy concerns was the right decision is really almost irrelevant. The point is and the act requires that you —
The Chair: What is the question?
Senator Baker: Yes, where is the question?
Senator Wallace: It is a question; I will end it with a question mark. You do have to show that you took reasonable measures to notify the clients and to give all clients the opportunity to provide ideas.
Regardless of the reason why you decided to go through the association, it seems to come down to whether that satisfies the act: Does that, by going to a group that represents offender advocacy groups, satisfy that requirement in the act, regardless of whether you did so for privacy reasons?
Do I understand you correctly to say that, since you could not touch or notify each of the clients, you chose to go to an advocacy group that was representative of their interests?
Ms. Trevethan: Yes, we had to look at what we felt was reasonable. We discussed it with legal and considered the approach we took, which included the online portion. It was not just the advocacy groups, although I think that was very important for us to do. We also did the online element. Based on those two, it was a reasonable approach for us to take.
The Chair: We return to Senator Joyal, whose time that was.
Senator Joyal: You mentioned that you consulted online. Can you inform us whether inmates have access to the Internet so that they could answer your question?
Senator Angus: They are not inmates.
Senator Joyal: I asked for an answer. I will wait for an answer. The answer will be "no," and I will be satisfied that they could not be consulted.
Ms. Trevethan: Are you asking whether inmates have Internet access? I am not positive they always do. I would assume they do not in their cells. I do not know whether they do through other mechanisms within the institution. I would have to ask our colleagues about that.
I think it is also correct to say that people who are seeking pardons are not those who are in the institutions at that time. They would have been out in the community for a long period of time and would have access.
Senator Joyal: Yet it is your opinion that putting it online to the general public constitutes a valid consultation on the basis of section 4 of the act; is that not right?
Ms. Trevethan: Yes, that it is a reasonable consultation.
Senator Joyal: In your opinion?
Ms. Trevethan: Yes.
Senator Joyal: What about the standards that are supposed to be comparable to those of other countries? To which other countries did you measure your standards?
Ms. Trevethan: We did do an examination, and our look at other countries is documented. However, as my colleague said, the problem is that there are really no comparable countries for us. Other countries have different mechanisms in place, but they do not have a comparable system where we could actually look at the cost for us versus the cost for them, for instance.
We looked at it. We did an analysis of that, but there were no comparable countries to use.
The Chair: Senator Joyal, after this one I will put you down for a second round.
Senator Joyal: Therefore, in your opinion, it is impossible for you to study what the user fees are, on what basis they are established and what impact they have on the people who are seeking pardons in the United States and Britain.
Ms. Trevethan: They do not have a comparable system. Mr. Ladouceur will talk about how they work.
[Translation]
Mr. Ladouceur: There is no system I can base my answer on because none of them involve pardon application processing fees, as such. For instance, in the United States, this is handled at the executive level by either the federal government or the state governments. In Great Britain, the process is almost automatic. I will explain. It all depends on the offence, the verdict and the sentencing. Not everyone with a criminal record is entitled to a pardon or to having their record erased. Those who are eligible meet certain predetermined criteria. However, there is no mathematical or monetary assessment I can use to make a comparison with other countries.
Senator Joyal: I am having a hard time understanding why we cannot compare ourselves with others.
The Chair: Second round.
[English]
Senator Joyal: All right, I will come back. Thank you.
Senator Baker: Section 4, the section we are talking about and which Senator Joyal is concerned about, is a mandatory section, as I remember the act. As I recall, it says you "must," M-U-S-T.
One of the key requirements is what Senator Joyal outlined, but the other key requirement is the establishment — shall "establish an independent advisory panel." Where is the panel?
Ms. Trevethan: We created a panel to address complaints, but you must create a panel in order to address complaints. In the end, we only received three comments. We did not get any complaints, so there was never a need to follow through and have the panel come together.
Here is how that would work. If you actually got a complaint from a person, that person would choose somebody who would be on the panel. We had other people that we would have on the panel, and then they needed to choose one together.
We never had to go that route. If that had been the case, then there was a process in place that would have taken 10 days and then 30 days and then another 10 days. However, there were never any complaints. Once we went online, there were only the three comments that were addressed.
Senator Baker: As I recall the act, there was a provision in the act. It was there very clearly because people had concerns that some people could not afford this. The independent advisory panel would adjudicate all complaints as they come up. In other words, people apply for a pardon and discover they have to pay $150. They are on social assistance and cannot afford $150.
The Chair: Senator Baker, are you referring to section 4?
Senator Baker: No.
The Chair: You are not? You are referring to some other portion.
Senator Baker: As I said at the beginning, Madam Chair, I said in the act.
The Chair: Section 4 is in the act.
Senator Baker: Yes, but there is a latter section to section 4, as I recall, that is longer than section 4(1), which is what we have been talking about. Let us go on now to sections 4(2), 4(3) and 4(4), to the substance of this business of the independent advisory panel and an adjudication process that talks about days of appeal and so on. Not only that, but the advisory panel you decided not to appoint has the power under the act to forgive money — to award costs — and, if it is a frivolous complaint, to declare that costs shall be paid by the person who applied.
Where is the independent advisory panel?
Ms. Trevethan: I think you are referring to 4.1(1), which deals with complaints.
Senator Baker: Oh, it could be. I do not have the act before me.
Ms. Trevethan: Just to assure you, we also spent a great deal of time talking to our colleagues at Treasury Board, the Office of the Comptroller General of Canada, et cetera, who are experts in the User Fees Act, because we felt it was a very complicated act. I am quite sure of the process that was explained to us.
It says the regulating authority that receives the complaint must "(a) try to resolve the complaint." We received three comments. We addressed all three comments. Then it says "(b) give the complainant notice in writing of proposed measures for its resolution," which we did for those three comments.
Senator Baker: You are saying that once this is approved, nobody can complain about the fee? Are you saying that no process is involved?
Ms. Trevethan: No, someone provides a comment and you try to resolve it. This is before the advisory portion. This is what it says.
Senator Baker: I know that is what it says. However, I think the act established that there is a process of complaint about the structure in case somebody is applying for a pardon down the road after this fee is implemented. Are you saying that there is no process?
Ms. Trevethan: Are you talking about the fee structure complaint or about the pardon?
Senator Baker: The fee structure. Is there no complaint mechanism after we pass this? Is that what you are saying?
Ms. Trevethan: That is correct. This is all before it is tabled.
We went through the consultation. At that point, it goes into receiving complaints. How much time people have to provide complaints is laid out.
Senator Baker: Thus the importance of what Senator Joyal said, that once this passes, that is it, you cannot complain about a fee and say, "I cannot afford to pay it."
I thought that what was in the act was a process whereby people could complain about the fee after the fact if they could afford to pay it. Senator Joyal's point is about ensuring that all of the people are aware of this new structure to allow them the opportunity to complain.
How many people have criminal records in Canada?
Mr. Ladouceur: About 10 per cent of the Canadian population.
Senator Baker: Ten per cent of the Canadian population have criminal records, 3.4 million people. That is from birth up. That is counting the six-year-olds and the seven-year-olds. They do not have criminal records.
When you break it down, I imagine it would be around 14 per cent or 15 per cent of the Canadian adult population who have criminal records. That is an awful lot of people. Can you point to any other country with a comparable percentage?
Ms. Trevethan: I do not know.
Senator Baker: No, you cannot. We have the highest. It is 14 per cent to 15 per cent.
The Chair: I want to be precise about the answer we just got, Senator Baker, so that we understand it.
Are you saying that you have looked at other countries' records and there is no other country with a comparable proportion of the population with a criminal record, or are you saying you did not look?
Ms. Trevethan: No, we have not looked at the number of people who have a criminal record.
The Chair: Thank you. Forgive me, Senator Baker.
Senator Baker: It is an alarming figure. Let me ask you this final question, because the chair is getting impatient with me. I am out of time.
The Chair: No, never.
Senator Baker: The act, when we passed it — I am not just referring to this fee act — but the parole board has an extraordinary power. Here is where your consultation with the RCMP is concerned, I presume, because you ask the RCMP to check whether this person has a criminal record or ask their opinion about whether this person should not be given a pardon.
There is reported case law in which you have refused pardons for people who have had stays entered — charged and the charges have been dropped. It is because you have this extraordinary, broad power to refuse pardons. Somebody need not be convicted of a criminal offence in the previous years to be rejected for a pardon. All it takes is if, in your opinion — the broad area — they should not be given a pardon.
Am I correct in that assessment, first of all?
Ms. Trevethan: Based on the new Bill C-23A, there are a number of areas we would look at, for instance the nature, extent and so on of the offence. There are a number of tools we use specifically to look at it. There are a number of areas that we specifically look at and do a full examination of.
Would you like to speak to the specific areas we are now looking at?
Mr. Ladouceur: Under Bill C-23A we have expanded by using certain web applications to be able to do a bit more digging on the pardon applicant, but the decision-making process is based on the person's criminal history. We do not go to the RCMP for an opinion, and the board does not go to the RCMP for an opinion. The decision is rendered based on verifiable facts that the board has before it. When a person is denied a pardon, there is a proposal to deny ahead of time. That person is given the opportunity for representation.
Senator Baker: Yes, they are.
Mr. Ladouceur: That, in a nutshell, is the process.
Senator Baker: They can go to the Federal Court after that.
Mr. Ladouceur: Yes.
Senator Baker: One final question on this. You go to the RCMP. They are paid $15 out of each fee, and this will continue. What information do they give you and where do they get it? They do not get it just from the Canadian Police Information Centre, CPIC, do they?
Mr. Ladouceur: Yes.
Senator Baker: They get it from CPIC and other sources, I presume?
The Chair: Senator Baker, we can invite the representative of the RCMP to come to the table.
Senator Baker: I do not know whether he wants to answer the question.
I read quite a bit of case law.
Senator Angus: Too much.
Senator Baker: Yes, too much. I noticed recently that a fellow applied for a pardon, and it took so long for him to get the pardon that in the meantime he was convicted of a criminal offence.
Senator Angus: Another one?
Senator Baker: Yes. Then he was up before the court on a manslaughter charge. He did not know that he had received a pardon, but he was informed he had received a pardon. Of course he had been cross-examined on his previous criminal record. The case was totally overturned because he had received a pardon, but the problem was that he had been convicted of another offence while he was waiting. In other words, it took the parole board so long to make a decision that when he was pardoned — it was a year after the fact — he had been convicted of another offence.
When the parole board gets the information from the RCMP, is the RCMP information adjudicated right at the end of the process and the day before you administer the pardon — given the fact that it takes the board so long the grant the pardon — or does it get lost two years before when the person applied?
Ms. Trevethan: First of all, it is part of what we have been saying, that we have been in a position where the pardons program has been unsustainable. It certainly has taken many years sometimes for someone to get a pardon. That is part of the reason we are trying to make it a sustainable program.
Also, just to make it clear, it is not only the RCMP we get information from. We get information from numerous sources. We go to municipal police forces. We will go to the Offender Management System at Correctional Service of Canada.
Senator Baker: Do you take hearsay information into account?
Ms. Trevethan: No. We use information from the police and other sources regarding behaviour in an institution, for instance, or what the police have said has happened with charges. We pull that information together, and that is what the decision is based on.
It certainly can take sometimes a long period of time to get all that information together, though. That is clear.
The Chair: However, if you are considering denying a pardon, the applicant has a chance to respond to the reasons why you are considering doing so?
Ms. Trevethan: That is correct, yes.
The Chair: The applicant is given full information about those reasons?
Ms. Trevethan: Yes.
Senator Banks: Unlike almost everybody else at the table, I am not a lawyer.
The Chair: No, many of us are not.
Senator Banks: I said "almost."
Senator Angus: You would never know it.
Senator Banks: I just need you to help me understand what you have said. In a couple of places you have said, in effect, as I understand you to say, "We know what the law says but we decided not to do that because we thought it was not reasonable."
Let me just ask you specifically. I am re-plowing ground that I have heard others speak on, specifically because of their questions and your answers. In section 4(1) — and I am not talking about the reasonableness of the amount, which I understand will end up being somewhere around $500 when you come back again sometime.
The Chair: Not this time.
Senator Banks: Not this time, but this is a 300 per cent increase.
We are talking about the provisions of the User Fees Act, which is a law. It says that before it can fix, increase or expand a user fee, the regulating authority must "(e) establish an independent advisory panel to address a complaint submitted by a client."
You said that you received three responses to an electronic consultation, two of which were opposed to the fee increase. Do I understand that correctly?
Ms. Trevethan: Two of them asked about the fee increase, asked for a lower one than what it was.
Senator Banks: Right. Would that not be a complaint with respect to the proposal?
Ms. Trevethan: According to the User Fees Act, what we needed to do was address it, which we did.
Senator Banks: Was what, sorry?
Ms. Trevethan: We needed to address any comments that came forward.
Senator Banks: Stop, please, for a minute, because you need to explain to me why it says something different than I just said, which is that you must establish an independent advisory panel. It does not say you have to do something else first.
Ms. Trevethan: Yes. You probably do not have it here, but section 4(2) walks through how you actually do that.
We needed to get comments. From that, we needed to respond to the comments. If the people commenting then wanted to put in a formal complaint, they had I believe 30 days. I would have to go back to the exact time period. During that period of time, we would then have needed to create the advisory committee.
Senator Banks: A complaint is not merely saying, "I do not think that is a good idea."
Ms. Trevethan: It says if the complaint is not resolved to the complainant's satisfaction 30 days after the expiry of the period, then you need to create the advisory body, and that person has to suggest someone. We had people on our side that we would have used, but if the complaint had come in, the complainant would have had to say who he or she wanted on the advisory committee. Then that committee would have looked at the complaint. That never happened. The people commenting never came back after we responded to them.
Senator Banks: They were satisfied?
Ms. Trevethan: That is correct.
Senator Banks: By virtue of not having come back again?
Ms. Trevethan: That is correct, and that is according to the User Fees Act.
Senator Banks: That is an interesting definition of "complaints."
Let me get my head around the answer to the question having to do with 4(1)(b), which Senator Joyal asked and which has been asked by others as well. One of your responses said that it required that you make reasonable efforts, but that is not what 4(1)(b) says. That is what 4(1)(a) says. Section 4(1)(b) says that before you fix a fee, you must give all clients or service users a reasonable opportunity. The reasonableness there is on their part, not on your part. You must give all clients or service users a reasonable opportunity. They have to have the opportunity. If they do not know about this, if they have not been notified about this, if they have not seen this, if you have not gotten in touch with them somehow, then they do not have a reasonable opportunity to respond.
I understand you to have said that having put the proposal up on your website and on Elizabeth Fry's website and on whoever else's website, and having talked with the folks who practise criminal law constitutes giving all clients or service users a reasonable opportunity, and that you could not go to the persons who surely must be on a list some place, who are in that 10-year or 5-year or 3-year interregnum between finishing their sentence and the date for which they can apply for a pardon, to notify them of this proposed increase. There must be a way to do that.
Ms. Trevethan: We have no data bank of people who are —
Senator Banks: Does the Correctional Service of Canada have a data bank of people who have been released from prison?
Ms. Trevethan: Released from prison, yes, but again, that is not the whole user group either.
Senator Banks: It is a start.
Senator Joyal: It is part of it.
Ms. Trevethan: People who apply for a pardon are not necessarily people who have been in prison.
Senator Banks: However, there are records. People who apply for pardons are people who have been convicted of a criminal offence, in most cases, or maybe have been stayed, but the vast majority of cases are people who have been convicted of a criminal offence. I assume that there is a record of those people some place, however inconvenient it might be to get it or to contact them privately.
Ms. Trevethan: The approach that we took, based on the user fee and based on the consultations with Treasury Board and the Office of the Comptroller General of Canada, OCG, and our lawyers, was that we took reasonable measures to notify the people who could potentially get a pardon and gave them the opportunity to provide feedback to us.
Senator Banks: I understand. I just wanted to make sure I understood what you said. If I were ever charged — and I have not been yet — with a criminal offence, I hope that I will be given the opportunity to say, "Well, in the circumstances, I thought it was reasonable, so I am absolved from abiding by that part of the law."
I know that you are talking about people who have been out, or whose sentences, whatever they were, have been over for three or five or ten years. I know that a guy who has been convicted for some kind of scam job, a fraudster, can probably come up with $500 without too much trouble, and so can many other people, particularly if they have been out for a while. However, I suspect that there are people, and I am thinking of people who represent a disproportionately large part of the prison population, for whom coming up with $500 all at once at one time to go forward for an application for a pardon might be an impediment or a difficulty or maybe even an impossibility. I am thinking of somebody who is doing something they have to do in order to feed their kids. I know, and I suspect that you know, of people for whom finding $500 in one place at one time to pay to the government would be a virtual impossibility.
Is there any provision that you have talked about or considered down the line? I know you said you do not want to adjudicate those cases, because you thought that would not be fair. I am arguing, from the other side, that maybe it is not fair to almost systematically exclude some parts of our society from the capacity to apply for a pardon for a criminal offence. That is my first question. Am I right that there is nothing in the present proposal that would permit that?
The second part of the question, and my last, chair, is this: Have you talked to the provinces about this? Would a person such as I described, someone who will have difficulty coming up with this $500, and who one assumes is on some kind of social assistance, be able to use some part of that social assistance to obtain this? If I come to an employer and I am going for a job that is bondable and I have a criminal record and I am precluded from that job until and unless I get a pardon, that makes me less of a contributor to and more of a burden upon society than otherwise. There are sometimes positive reasons to give pardons. If the provinces have not been consulted in this respect, and if they are not taking into consideration the possibility that this will be $500 in a year or two, and if the provisions for allowing the use of provincial social funds for this purpose have not been taken into account by them, then we are writing it all off, and there will be no recourse for those people.
The Chair: Would you specify what that last question was?
Senator Banks: Have you talked to the provinces about the implications of this? If not, what answer would you have to the proposition that there might be some people at the bottom end of society who would be precluded from applying for a pardon?
Ms. Trevethan: In terms of the provinces, we have talked to heads of corrections about this on a couple of occasions from that end. We have not done in-depth consultations with other provinces or territories.
From the board's perspective, right now, we are not able to provide a good-quality, timely service to people who are applying for pardons. By making that sustainable, we will actually be able to provide it and to provide it in a timely manner. Right now, if people are waiting many years while we are trying to finish the application, that also can have an impact on them.
The other aspect of it is that there is a period of time within which, before they are eligible, they could potentially have an opportunity to gather that money. I do not know whether there are other places where they may be able to get the money for a pardon. Maybe that is something that others could try to comment on. However, I am not aware of any other places where social assistance may provide that.
Senator Banks: A final supplemental.
The Chair: We have another witness after these witnesses, you understand, Senator Banks.
Senator Banks: Am I close with the $500?
The Chair: I can say this is a number that has been raised on a hypothetical level in testimony on another matter before this committee.
Ms. Trevethan: We are not yet at a point where we know what the full cost would be.
[Translation]
Senator Chaput: My questions will be short. We are talking about user fees for pardon applications. If I understood correctly, you said that you have analyzed what is going on outside of Canada and that this kind of analysis is almost impossible to conduct because of completely different standards.
However, having realized that pardon applications were part of an almost-automatic process outside of Canada, did you look at whether the countries in question had criteria or standards? Were there costs involved in pardon applications even if the process was almost automatic?
Mr. Ladouceur: They do have criteria and standards, of course. As I stated earlier, it all depends on the offence and the sentence length. Regarding fees, I have not seen, in the documents before me, any cases where service fees were charged, whether for erasing a criminal record or for obtaining a pardon. The pardon system we have here is not exclusive to Canada, but it is not far from it.
Senator Chaput: I have another question for you. You say that you have service standards for pardon applications. Have you established new standards, or are you going to continue applying the existing ones?
[English]
Ms. Trevethan: The service standards we had created were under the old legislation; obviously our role right now is to try to meet them as much as possible. In some cases, we have been. We got rid of a backlog with some money and tried to then meet the standards. Those standards were ones under the old legislation that we thought we could definitely meet.
With the changes with the new legislation now, we are still in the process of trying to decide what those actual service standards would be. We will be developing some new ones as well, but we are not there because we are still in the process of trying to determine what exactly it will mean. We have not yet created them.
[Translation]
Mr. Ladouceur: The legislation is so new that, right now, we cannot estimate the required time for someone who has to wait 10 years or who has committed a more serious offence. At this time, under the new legislation, the standards have not yet been properly assessed.
Senator Chaput: I am not a lawyer, but I will quote subsection 4(f) of the act:
Establish standards which are comparable to those established by other countries with which a comparison is relevant and against which the performance of the regulating authority can be measured.
What is your answer to this rather benign question?
[English]
Ms. Trevethan: I need to look for this, but the proposal itself addresses that as well. When we were moving forward initially towards the $150, we were still under the old law. With the changes to the new law in the user fees proposal, it said these standards could be met only under the old legislation and not under the new.
We are asking to move forward with the $150 as an interim, and new standards will be developed with the new user fees that will be put in place.
Senator Chaput: Thank you.
The Chair: I have supplementary to that. There is a footnote in the Library of Parliament's document for us on page 3, colleagues; it is footnote number 15. It addresses the question of standards and refers back to the user fees proposal that came from the board. There we would be looking at pages 10 and 11. I will not bother rereading them all, but those are the references, if you wanted to find the material.
I wanted to ask something with reference to the questions about privacy and about what is reasonable and what is not. You have told us you took advice on both of those elements. Are there guidelines? Is there jurisprudence? How do we know what is considered "reasonable," or was this such uncharted territory that your lawyers just took the best stab they could?
I suspect this is not the first time that under the User Fees Act someone has examined the question of what is reasonable. I also suspect this is not the first time in your operations that you have had to adjudicate between privacy concerns and other concerns.
I wonder if you could provide us with some explanation of the reasoning and the authorities that led to the decisions that you have made. I think that might help us to understand how we got to where we are. Is that possible?
Ms. Trevethan: Certainly. I can explain a little bit of the process and how we went through it. Certainly this is something we spent quite a bit of time talking about.
The Chair: I am sure it is. I think you have explained the process up to a point. What I am looking for is the legal reasoning that brought us to the position where we now are, this being the Legal and Constitutional Affairs Committee. Do you understand?
Ms. Trevethan: In talking with our lawyers, the whole question was the reasonableness of it and what constitutes "reasonable." That is why we had discussions with our lawyers, with Treasury Board and the Office of the Comptroller General about what was reasonable.
The question ends up being whether you go to every single Canadian in Canada, and is that reasonable. Also, is that feasible to do? With a small organization like the board, you have to look at the cost for us trying to do an extensive consultation with everyone in Canada versus the approaches that we took. In the end, in all of the discussions that we had, it was considered that this was a reasonable approach, given what we were trying to do.
The Chair: I am asking whether there are precedents or guidelines. I am not asking you to answer that question now; I am asking you to provide us with whatever information you have about how you reach a determination of what, in a given case, is reasonable, what criteria are used and, similarly, for privacy elements, so that we understand the reasoning that led you to your decision.
We understand it was a very considered and much discussed decision, but I would like to understand more about how we got from here to there.
Ms. Trevethan: Sure. We can provide you with that.
The Chair: I have a second question. I think I understood from what you said, Ms. Trevethan, that, in your discussions with the people with whom you did discuss this proposal, you assured them that, if the user fees went to $150 total — $135 to you — that you would be able to improve response times, processing times; is that not right?
Ms. Trevethan: Yes, that is correct. Before Bill C-23A, based on the discussions we had regarding the $150 under the act as we had it at that point, the service standards were clear as to what we could do. We said that we would work towards making a simplified version of the guide — some of which we have already done — and provide additional simplified information for respondents.
The Chair: Last question. Try to give me as brief an answer as you can, please.
We all understand that this proposal has to do with the administrative requirements under the old legislation; that is how you got to $150. However, you have referred repeatedly to the increased complexities that will lead you to come back to us in the future — in addition to the government's decision to go to full-cost recovery, which is not where we are with this proposal. Nonetheless, could you explain briefly for the record what these new increased complexities are?
Ms. Trevethan: Yes. For the board, the new legislation will include increased investigation and analysis for our pardons officers. For all offences — summary, it does not matter which ones — there is more work involved in bringing information forward.
There are also additional board member costs. In the past, board members did not make a decision on a summary. A pardon was issued, so the analysis was done and it was issued. Now a board member must actually make a decision on it. That is one of the costs.
For the more serious types of offences that people are applying for, it will include even more examination and going to other sources of information.
The Chair: I think that gives us an idea of what we are talking about here.
Senator Joyal: Can you tell me why you did not seek the opinion of the Privacy Commissioner when determining the course of consultation that you decided to take?
Ms. Trevethan: I do not think there was ever any discussion of the need to do so.
Senator Joyal: Is it your intention to seek the opinion of the Privacy Commissioner regarding the increase in the fees that you are studying to implement Bill C-23A?
Ms. Trevethan: We had not talked about doing so, but we could do so.
Senator Joyal: I would appreciate it if you could come forward with that the next time. Then, if you allege privacy protection, you will have the opinion from the institution of the federal government that has been established to provide that type of an opinion.
Ms. Trevethan: Okay.
Senator Banks: Do you know offhand, and if not could you find out if possible, what the rate of recidivism is in persons who have been granted pardons?
Ms. Trevethan: We do not have that right now. We can try to get that information for you.
Mr. Ladouceur: I would have to look at the number of automatic cessations from the RCMP about that, but I do not want to guess for you. I will provide you specific numbers.
What do we mean by cessations? To use an example you used earlier, if someone is found guilty of another offence and he or she has a pardon, there is an automatic cessation of the previous pardon once that happens.
The Chair: Thank you to all three witnesses very much indeed. It was a bit livelier than you expected, perhaps, but very interesting and informative for us.
We welcome back a not infrequent witness before this committee, Ms. Kim Pate, Executive Director of the Canadian Association of Elizabeth Fry Societies.
I believe you have heard most of the preceding portion of this meeting. Do you have a statement?
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: I do not have a statement, although I would say that, while we were consulted, one of the issues raised around the fees was that there was unanimity in the National Associations Active in Criminal Justice that we regret any increase in user fees. The idea of an automatic pardon process was more favoured by our collectivity of national groups, in part because of some of the issues raised around how to trace all the individuals that you might want to consult, but in large part also because of the costs involved right now and the issues raised already with the individuals with whom we work around the cost of the $50 fee, let alone the $150, $250, $750, or $1,000 fee or whatever it may end up being.
An industry was created because individuals already do not understand the pardon application process. The increased complexity has caused, I understand, somewhere in the neighbourhood of 40 per cent or perhaps more of pardon applications being returned to applicants because they are not being completed sufficiently. People are going to third parties, which costs them somewhere in the neighbourhood of between $500 and $1,000, depending on the fee.
We put the links on our website because if a person did an Internet search with Google or one of the other search engines, the private industry would come up first. We wanted the individuals we deal with to know that if they want to they can go directly to the National Parole Board for the application process. We have been advocating that our membership provide that information. The costing does not include what that costs to train our network to also provide that information.
The complexity is starting to preclude individuals from applying, and the cost is certainly likely to as well in the future, if it has not already.
The Chair: Just as a quick point of clarification before going to Senator Banks, when you put the consultation note on your website, were respondents responding to you, or was that a direct link to the parole board?
Ms. Pate: It was not a consultation process. It was just a link: If you want to apply for a pardon, this is how to apply for one. It was an attempt to ensure that individuals knew they could go directly to the parole board, and the understanding was that assistance would be provided by individuals at the National Parole Board to assist applicants to complete their paperwork, rather than their having to hire a third party to do so.
The Chair: I understand that, but a previous witness said that, as part of the consultation process, they also had links through your website. No?
Ms. Pate: I am not certain whether that is what they meant to say. It certainly was not part of the consultation with individuals that that happened.
We raised concerns that we already had issues around the $50 fee being prohibitive for some. In some of our networks, individuals are trying to provide assistance with that $50 fee already. If you have someone who is a single mom on social assistance, given the women we represent, the likelihood of her being able to come up with even $50 is sometimes prohibitive.
The Chair: Thank you.
Senator Banks: Section 4(1)(e) of the User Fees Act says that before an increase can be made, the regulating authority must "establish an independent advisory panel to address a complaint submitted by a client regarding the user fee or change," and it goes on. I gather from what you have just said that you are not in favour of an increase in the user fees.
Ms. Pate: That is correct.
Senator Banks: Why did you not complain?
Ms. Pate: That is a very good question. Likely we should have; we have not at this stage, but thank you for giving me another thing to put on my agenda.
Senator Banks: Do I understand correctly, and do you understand — and I hope I am wrong — that it is too late?
Ms. Pate: I do not know. I apologize. Given the volume of work through our office, particularly with the current legislative agenda, and I apologize for racing out to deal with another matter, I am not on top of everything that I could be. I apologize that I am not on top of that. It was not a matter of contemplation for our organization. It now will be, and I will investigate whether in fact it is too late. I do not know.
Senator Banks: When you do that, let us know. I gathered from previous witnesses that if the regulating authority did not receive a complaint within a specified time, then the obligation to establish an independent advisory panel is obviated. If we are beyond that time, there is no longer a requirement to establish one.
Ms. Pate: There is new legislation, and apparently there will be an increase in user fees, so potentially we will be looking at that in the next year.
Senator Banks: But on the matter before us?
Ms. Pate: No, we have not done anything on that, and I am not aware of anyone who has.
[Translation]
Senator Boisvenu: Ms. Pate, good day. I have two questions to start with. First, do you have statistics on the income of people applying for pardons?
[English]
Ms. Pate: No, I do not have the income of people applying for pardons, but certainly we know that the majority of women who are criminalized, the group I am —
[Translation]
Senator Boisvenu: You do not have scientific data on the income of people applying for pardons?
[English]
Ms. Pate: I am not sure what you mean by "scientific data." Certainly the majority are poor women.
[Translation]
Senator Boisvenu: Do those people earn $10,000, $20,000 or $50,000 a year? Do you have specific data on the income of women applying for pardons?
[English]
Ms. Pate: No, I do not have that information.
[Translation]
Senator Boisvenu: Do you have data on women who do not apply for pardons because fees are charged?
[English]
Ms. Pate: We do not have the specific data, but I think one of the challenges in what you are posing is that we do know that the majority of the women with whom we work and who have been criminalized are poor women. Many are on social assistance, and we know what the rates are —
[Translation]
Senator Boisvenu: That is not my question. Do you have. . .
The Chair: Senator Boisvenu, could you let the witness answer?
[English]
Senator Angus: Give her time to listen to the translation. That is what is happening.
Ms. Pate: We do know that of the women who come forward who have concerns about it and are asking for our assistance, there are undoubtedly some women who have income, who have employment, certainly more when we had post-secondary education and women were able to gain different employment, but that has not been in existence since 1992 in our federal prison system. Now the majority of women who come forward seeking our assistance are usually on social assistance themselves, and there is no province or territory in the country that would allow a pardon application to be an expense that would be added on beyond their usual housing and food allowance, that sort of thing. It is prohibitive to those women.
No, I do not have the exact numbers of every single person applying or what their individual income is, but we certainly know that those who are criminalized tend not to be among the most privileged or wealthy. Based on the questions posed to us, they would tend to be people who do not have the resources.
[Translation]
Senator Boisvenu: If I understand your answer correctly, your biggest fear is that the number of pardon applications will drop because of the fee increase. In the absence of scientific data on income and on the number of people who have not applied because of the fees, that is your main fear.
[English]
Ms. Pate: It is not a fear. It is based on the very real issues raised and the very real requests that come to us to assist individuals to obtain pardons. I would suspect that a study of the nature you are calling for would cost far more than it would cost to put in an automatic process for certainly summary conviction, and perhaps a rebuttable process for those with more serious convictions. Then you would actually have a process whereby you might want to have user fees when it is a more serious situation or you require more investigation. If we know about people applying for a pardon, it is often because they do not understand the process or they cannot afford the process or both.
[Translation]
Senator Boisvenu: You said earlier that applying for a pardon could cost $1,000 in legal fees. When we were considering Bill C-23 last year, I conducted an Internet search to find out whether many legal advisors provided counsel to ex-convicts applying for a pardon. I came across many websites of legal advisors who charged $100 for a pardon application.
Do you not feel that this amount is not even close to the $1,000 you mentioned earlier?
[English]
Ms. Pate: I apologize if I said lawyers. I do not know that it is usually lawyers doing it. There is a group called Pardons Canada, for instance, with people who have worked in government, police and other sectors. That Pardons Canada is often mistaken for the National Parole Board. That was part of the reason we put the link on our website. Some of the folks at the National Parole Board were not aware that that link was coming up before theirs was. I know from some of the individuals who have sought those services that they have paid as much as $500 or $750 or $1,000. It may be that you can find someone to do it for a cheaper fee, but you also can do it yourself or do it with assistance if you know what is needed or if you have all the information.
I understand from the previous witnesses that they are returning a number of those requests. A number of our organizations are offering to do contracts to set up public education information that would go out to individuals to help them determine how to do the pardon application. It strikes me that all of those resources could be better spent on having an automatic process for those who are more summary conviction and then perhaps a staged process for more serious offences.
Senator Joyal: The witnesses we heard referred to representatives of the National Associations Active in Criminal Justice. How many associations are part of that group?
Ms. Pate: We were 14 organizations, but I think we are now 17. They include the Canadian Association of Elizabeth Fry Societies, The John Howard Society of Canada, The Salvation Army and the National Association of Friendship Centres. I should remember all of them, but I do not; I am sorry.
Senator Joyal: You mentioned earlier in an answer that there was almost unanimity among all those associations against an increase of the fees, if I understood you.
Ms. Pate: That is correct. We were told it was a fait accompli that the fees were going up, so we tried to determine what we could do to mitigate this reality. At that time, we were told the fees would be going up and that the government had determined that a cost-recovery process would be put in place.
Senator Joyal: However, none of those 15 or 17 associations were aware that you could file a complaint or that there would be a complainant authority — in other words that a whole process was provided for in the act, whereby a panel could have been put together to which the organizations could express your arguments and maybe modulate the fees according to what you just stated, that perhaps some of those on social assistance could be spared the fees, or something like that.
Ms. Pate: You are correct, and we were remiss in not researching that sufficiently.
Senator Joyal: Section 4.1(1) states quite clearly: "A regulating authority that receives a complaint about a proposed user fee within the period set out in a notice . . ."
Ms. Pate: Yes, I agree.
Senator Joyal: We did not have that notice in front of us. What did it include? Is it just information stating that the user fee will be a certain amount or that we propose an increase of such an amount within a period of time and you are allowed to express your opinions within that period of time?
We have not seen the text of the notice that was posted by the parole board seeking people's opinions. It seems to me that when the act provides for a very specific process, the notice is to remind people that they have an opportunity to express their views and, if they are opposed, to go through the route the act provides.
Ms. Pate: For those of us who are legally trained, I am ashamed to say we did not do that research in that moment. I believe a number of us expressed concern about the user fee process. That was part of what generated the meeting that occurred between the National Parole Board and the National Associations Active in Criminal Justice. It was an attempt to address that issue.
Yes, it would have been very helpful if we had followed that process. We did not, however, and that is our mistake.
Senator Joyal: Who is the executive of that national association?
Ms. Pate: The president is the executive director of the Association des services de réhabilitation sociale du Québec. The Canadian Criminal Justice Association is on the executive as well. I believe the executive director of the Native Counselling Services of Alberta is there. Then we have a part-time executive director.
Senator Joyal: You will understand our conundrum, will you not?
Ms. Pate: Yes.
Senator Joyal: Witnesses came to us and told us that they have consulted. They did not receive a complaint. However, when you testified, you said there was almost unanimity among the 15 or so groups that are involved with former inmates.
Now we are caught with the idea of not having the capacity to really be convinced that the act has been followed according to what it suggests to achieve.
Ms. Pate: Senator, I fear that with the number of pieces of legislation and the changes that are happening, there are maybe other examples of issues being missed by organizations like ours that are a one-and-a-half-staff office at the national level trying to respond to the volume of material coming through. We are missing things, and I apologize for that. That is our mistake. As I say, we are remiss in not having launched a complaint.
Now that I know there is a provision, we will certainly be ready for the next round, but that is not the situation we are in right now.
Senator Joyal: In your opinion, do the various associations have some resources to help people like you mentioned — the women that you take care of — face the fees to receive a pardon? What happens if a person comes to you and says, "I would like to seek a pardon to get a job but I do not have the money to provide to obtain the pardon"? What do you do in those cases?
Ms. Pate: Sometimes we take it out of our own pocket. A young woman I have known for many years is in the process of applying for one. She has no means to fund it, so I have funded it personally.
Some of our organizations have set up funds. For instance, money from speaking engagements and my teaching income from the University of Ottawa law school is put into a fund that is used for initiatives such as this. However, there is no fund available.
Occasionally we have been able to access private funding through foundations and that sort of thing. Some of our members have been able to obtain some funding for that, but usually we do it for things like scholarships or bursaries for people going back to school. It is usually not for this sort of initiative.
Things like identification requests and those sorts of things come in fairly routinely and are fundamental to people being able to continue on and reintegrate into the community, but people do not have the resources to actually pay for them.
Senator Joyal: Are you aware of the conditions of Aboriginal people, generally? We know the inmate population is much higher in that community than in any other Canadian community.
Ms. Pate: I just heard last week that 34 per cent of the women now serving two years or more are indigenous women. The woman I am in the process of assisting right now has been out 11 years; it has been over 10 years since her sentence expired. She is an indigenous woman, and we are trying to assist her with her pardon application.
The Chair: Honourable senators, I am interrupting on an informational basis here. There are about eight minutes left in our official sitting time, and we can run a few minutes over, but we should try to avoid running over for very long. Colleagues, you will recall that I need you for a few minutes for a couple of quick informational points about future business of the committee.
Senator Joyal: Do you know whether the National Association of Friendship Centres has any capacity to help Aboriginal people face the increase in costs?
Ms. Pate: Unless they are provided with additional resources, they would be doing it off the sides of their desks, and I am not aware that they have additional resources to assist at this stage. I understand there might be a possibility of some funding from the National Parole Board to assist in providing information and possibly a video or something of that sort, but I am not aware of any other resources at this stage.
Senator Joyal: Thank you.
Senator Baker: I would like to congratulate the witness on the excellent job that she is doing. I would like to ask a general question. We have 3.4 million Canadians with criminal records, and that is steadily increasing. The National Parole Board told us they had 30,000 requests this past year, up from 20,000. However, that is only 1 per cent of those people with criminal records, and the criminal records are increasing. In other words, the 3.4 million will soon be 3.5 million and 3.6 million, which works out to 14 per cent of the adult population, by fast mathematics. If there are 100 people and if you are really truly representative of the people, then 10 per cent of that 100 people should have criminal records, should they not?
Ms. Pate: Yes.
Senator Baker: As a teacher of law, do you have any thoughts on why we have had this ballooning of the numbers of people in Canada with criminal records and why we would be making it more difficult for them to get pardons, especially if it is a summary conviction offence?
Ms. Pate: We have been seeing a hardening of attitudes towards individuals who have been criminalized. We have been seeing that over a number of years. The fact that we are seeing increased and longer sentences — people staying in for longer periods of time — means that it is increasingly difficult for individuals to integrate into the community, generally. I think there is a move in some areas towards presuming that anybody who has been criminalized is not entitled to the same protection under the law as anybody who has not been criminalized.
This is a concern for many of us, not just those of us working in this area and who have chosen to do this work. Many of us know self-report studies show that there is virtually nobody who gets beyond adolescence who has not done something for which they could have been criminalized. It is an arbitrary distinction to vilify those who have been criminalized and imprisoned.
Certainly we see a hardening of those sorts of attitudes. I just lost my colleague at The John Howard Society who is no longer with the organization, and we are increasingly seeing the vilifying of those who advocate as well in this atmosphere and environment. The challenges are many. Our colleagues at the Canadian Families and Corrections Network are talking as well about seeing the spillover to those who do not have records but who support, as family members or friends, individuals who have records and have been criminalized. I think we are seeing a general mood that sometimes is not the most positive.
We are seeing some challenges to that as well. Since the death of Ashley Smith, I have heard many people comment, both publicly and privately, that this is not the way we want to see Canada going, that somebody could be jailed for throwing crabapples and end up dead and being vilified in that process, accumulating 97 more charges.
I think there is also a move afoot to counter that wave. We see the Correctional Investigator and the Parliamentary Budget Officer coming out with challenges around the increased criminalization of people with mental health issues. I was at a forum yesterday where the Mental Health Commission of Canada and the Canadian Psychological Association were challenging their membership to work at ways to challenge the current law reform initiatives as well.
Senator Baker: Do you think one of the reasons as well is that 20 years ago, for one delict you would get maybe two charges, whereas today for one delict you may have 10 criminal charges against you?
Ms. Pate: One of the areas that were the greatest challenge to me personally when I started in this work was to see how many women pled guilty. I know many people plead guilty — men, women and young people — but particularly indigenous women who might be charged with a number of charges presume that they will not have a fair process and plead guilty to all of those charges.
Senator Baker: Are you saying now with the new fee structure, the new application that will undoubtedly come before us, that you will perhaps have a closer look at it and at the mechanisms that are available to object to it so that the law is followed?
As you know from your knowledge of the bill right now, the user fees that will be approved now would have to be reduced next year if the parole board did not meet their standards that are laid down for performance. However, you have just heard them say they do not have any standards because they have nobody with which to compare as far as standards are concerned. The whole act comes into question. Thank you very much.
The Chair: Have you concluded?
Senator Baker: I knew you were going to interrupt.
The Chair: Spot on time.
Ms. Pate, thank you so very much. As always we are very grateful to you. Today was just one demonstration of how busy you are, so we really do appreciate that you were able to juggle everything in order to help us with this work.
Ms. Pate: Thank you very much.
The Chair: Colleagues, we will suspend for one moment to allow Ms. Pate to leave, and then we have a brief in-camera meeting.
(The committee continued in camera.)