1. February 10, 2012 H. Archibald Kaiser, Schulich School of Law and Department of Psychiatry, Dalhousie University (902) 494-1003 archie.kaiser@dal.caarchie.kaiser@dal.ca

2. 2 Outline of Presentation What Does Bill C-10 Do? The Government’s Position: “one step closer to cracking down” Overall Effects of the Legislation Positions of Professional Associations The Canadian Bar Association The Canadian Psychiatric Association The Canadian Association of Social Workers The Canadian Psychological Association The Canadian Pediatric Society The National Union of Public and General Employees Alternatives to Current Criminal Justice Policy Conclusion

3. 3 What Is Bill C-10? A 208 section omnibus criminal “reform” Bill Combines changes from 9 bills as the Safe Streets and Communities Act Bill C-10 was passed at the House of Commons on December 5, 2011 The Bill is now before the Standing Senate Committee on Legal and Constitutional Affairs

4. 4 What Does Bill C-10 Do? (from the Bill Summary, with supplements) Part 1, The Justice for Victims of Terrorism Act Creates “a cause of action that allows victims of terrorism to sue perpetrators and their supporters” in Canadian courts  Preventing “a listed foreign state from claiming immunity”  This Part of the Bill is the most likely to be amended, although it will have little practical effect on marginalized communities

5. 5  Part 2 amends the Criminal Code of Canada a) increases or imposes mandatory minimum penalties and maximum penalties for certain child sexual offences; b) creates offences of making sexually explicit material available to a child and of agreeing to commit a sexual offence against a child; c) expands the list of conditions for prohibition and recognizance orders to prohibit contact with young persons and use of the internet d) expanding the offences giving rise to these orders e) further restricting the availability of conditional sentences of imprisonment

6. 6 Part 2 also amends the Controlled Drug and Substances Act Provides minimum penalties for certain drug offences Increases the maximum penalty for marijuana production Reschedules certain substances to more serious classifications

7. 7 Part 3 amends the Corrections and Conditional Release Act (CCRA) clarifies that the protection of society is the paramount consideration for the CSC, NPB and provincial parole boards by amending s. 3.1 of the CCRA Eliminates reference in s. 4 of the CCRA to the least restrictive principle Does not commit the Correctional Service of Canada to the protection of the human rights of inmates Establishes the right to make victim impact statements at parole hearings, with information disclosure to victims Automatic suspension of parole or statutory release in some cases

8. 8 Part 3 amends the Criminal Records Act Substitutes the term “record suspension” for “pardon” Extends ineligibility periods before which offenders cannot apply and excludes some offences Will reduce the availability of record suspensions Part 3 amends the International Transfer of Offenders Act Stating a purpose is to enhance public safety and modify factors for the PSEP Minister to consider

9. 9 Part 4 amends the Youth Criminal Justice Act Sentencing and general principles Amendments to s. 3(1)(a) emphasize public protection through accountability Amends some provisions relating to judicial interim release, sentencing, publication bans and placement in custody Increases the availability of adult sentencing Amendments will tend to increase detention before sentencing and the duration of custodial sentences as well

10. 10 Part 5 amends the Immigration and Refugee Protection Act Permits refusal of work permits for foreign nationals, where to do so would be contrary to specified policy considerations Other Acts are also amended in consequence

11. 11 The Government’s Position: “one step closer to cracking down” “a fundamental pillar of our commitment to victims of crime” “meeting high expectations of Canadians” “law-and-order bills we have passed are undoubtedly having a positive impact on reducing crime” Demonstrating Government’s “commitment to ensuring criminals are held fully accountable … and that the safety and security of law- abiding Canadians and victims come first” (Minister’s News Release, September 20, 2011 “For over 40 years, Canada’s criminal justice system was pulled in the wrong direction, focusing more on the rights of criminals than victims. Our government took action to right this wrong -and we’ve delivered.” CPC website, December 1, 2011 “Bill C-10 is a bill for which Canadians have asked … Our government believes in standing up for victims … our streets and communities will be safer.” (Candace Hoeppner, M.P., February 7, 2012)

12. 12 Overall Effects of the Legislation There will be more young people and adults in custody for longer periods Judges will have less discretion to ensure that sentences are carefully tailored to the individual and his/her actual offence Judges will be obliged to send more people to prison and will have less flexibility to impose non-custodial sentences and custodial sentences to be served in the community The stigma following a criminal conviction will be harder to reduce or erase and community reintegration will be more difficult Prisons will become more overcrowded and more mentally unhealthy environments Attention will be diverted away from effective crime prevention strategies As treatment and prevention are deemphasized and prisons deteriorate, communities will be less safe

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17. 17 Positions of Professional Associations The Canadian Bar Association Position (C.B.A.) (November 17, 2011) “ironic name” given Canada’s having “some of safest streets” and “a declining crime rate” “overreach and overreaction to imaginary problems” “could easily make it worse” “requires new prisons” when other jurisdictions have changed course “a mistake and setback”

18. 18 The C.B.A. Position (continued) 1: ignores reality of actual crime reducing strategies: child poverty; services for persons with mental illness; diversion of youth; rehabilitating prisoners 2: “rushed through Parliament” 3: marketing approach of Government “ensures that its public support is based heavily on inaccuracies” 4: inadequate study by Parliamentary committee 5: more young people will spend more remand time before trial

19. 19 The C.B.A. Position (continued) 6: “eliminates conditional sentences for minor and property offenders” 7: “force judges to incarcerate people” who should not be in custody; prisoners’ human rights will be disregarded 8: “justice system overload” “Where the justice system already at the breaking point” 9: : “Victimizing the most vulnerable”, especially for Aboriginal people 10: “no way to responsibly decide the bill’s financial implications”

20. 20 The C.B.A. Position (continued) “ a huge step backwards” Does not prioritize public safety “emphasizes retribution above all else” “make us less safe, less secure, and ultimately, less Canadian”

21. 21 The Canadian Psychiatric Association Bill C-10 will dramatically increase the number of incarcerated individuals in Canada “Just like current prison populations, these people will experience mental illnesses at disproportionately high rates” Without “a robust mental health strategy with its aggressive stance on justice policy the mental health crisis in our prisons will worsen” (News Release, December 7, 2011)

22. 22 Canadian Association of Social Workers Asks the government “to balance crime and punishments with a rehabilitation agenda” “front line experience with poverty, crime, and victimization contradicts the direction C-10 is taking” “results expected from C-10 are drastically different than intended” “more convicted criminals in jail … costs of higher prison populations … cost to society in lost opportunities for rehabilitation” (News Release, November 7, 2011)

23. 23 Canadian Psychological Association “Mandatory Minimum Sentences” (MMS) “are expensive”; “small effect on public safety in comparison to alternative methods (e.g. treatment of the highest risk offenders) that are more likely to reduce crime” “do not reduce crime”; “neither stop people from committing the crime nor from committing additional crimes” “are unjust”; “have resulted in the breakdown of the criminal justice system”; “justice is weighted in the hands of the police” and prosecutors, not “judges who have been trained in the administration of justice”

24. 24 Canadian Psychological Association (continued) New or Amended Sexual Offences Involving Children “majority of children are victimized by adults they know”, not strangers “sex offender registries do not have an impact on recidivism rates” There are differences between online only offenders and those who want to meet “a minor in real life” “For adolescents”, should be a “legal distinction between poor judgment and criminal content” relating to “sexually explicit images”

25. 25 Canadian Psychological Association (continued) Treatment Versus Incarceration C-10 will put “more people in jail for longer periods of time” “incarceration does not reduce crime”; “treatment works” Should instead “concentrate on moderate and high risk offenders, target changeable risk factors … incorporate proven, human services … as part of offender rehabilitation” (CPA Submission to the Senate, January 30, 2012)

26. The Canadian Pediatric Society Opposed to the amendments to the Youth Criminal Justice Act “deeply concerned abut the negative effects on the developmental and emotional health of young offenders” “respect the UN Convention on the Rights of the Child” “Children should not be put in prison with adults” “federal government should … establish a national youth crime prevention strategy” “Youth convicted of a crime and incarcerated should be provided developmentally-appropriate mental and physical health care, as well as rehabilitation and educational services” “amendments to the Youth Criminal Justice Act must consider the rights of youth and their mental, physical, developmental, and educational needs” (CPA Position Statement AH 2011-02, June 2011) 26

27. The National Union of Public and General Employees A Union representing corrections officers “The new legislation ignores the growing mental health crisis facing jails across the country” “new drug sentences alone will see a dramatic increase in the number of offenders in already overcrowded correctional facilities” “it will not make our communities safer” “contrary to the pragmatic and compassionate approach to criminal justice in which Canadians pride themselves” (NUPGE, November 9, 2011) “When people talk about Harper being tough on crime, I think Bill C-10 demonstrates that the Harper government is dumb on crime.” (James Clancy, NUPGE President, CBC, Jan. 26, 2012) 27

28. 28 Alternatives to Current Criminal Justice Policy See Fearmonger, by Paula Mallea (Lorimer: Toronto, 2011) “Poverty is a risk factor” Crime prevention programs; “community-building” (153) “aimed at youth”; “target local issues in sensitive and culturally appropriate ways” “basic literacy, education and training” “help parents” “target substance abuse and other public health issues” “reclaim cultures and languages” “after school programs” Safety programs for women and girls Anger management programs for men and boys

29. 29 Alternatives to Current Criminal Justice Policy (continued) “Instead of Prison” (163) “more sensible to provide programs and treatment outside prison walls” While mindful of public safety “costs a fraction of the price” “much higher likelihood of success” More effective programs in Prison “find the will and resources to provide appropriate supports and treatments” (175) For prisoners with many special needs Restorative justice programs within prison Reverse the cancellation of effective programs (184) Prison farms Reinvest in proven programs Literacy training Substance abuse harm reduction

30. 30 Alternatives to Current Criminal Justice Policy (continued) Post-prison More programs upon release (187) Maintain statutory release programs Provide services in neighbourhoods Address major risk factors: Educational deficiencies Unemployment Poverty Homelessness

31. 31 Conclusion These are bleak times in the development of Canadian criminal justice policy: Evidence-based measures to reduce crime and make communities safer are not being considered The spirit of retribution is being strengthened and becoming more pervasive Increased investment in prisons will not improve public safety Citizens, professional associations, community organizations and elected representatives have heightened responsibilities: To provide an ongoing critique of the current direction of criminal justice policy To heighten awareness of constructive alternatives to retribution and incarceration To support marginalized communities whose health and socio- economic status will be adversely affected