Draft Bill on the Québec Correctional System

February 2002

Our association is made up of 23 rape crisis centres in every region of Québec that assist thousands of women and girls every year who are victims of sexual assault. The work of these centres (CALACS)* consists of informing women of the recourse available to them, helping them get through the consequences of the assault and dealing with the fact of being sexually assaulted, taking back control over their lives, and accompanying them through the medical, legal or other procedures they decide to undertake. The centres’ approach is rooted in the principle of defending women’s right to integrity, respectful and fair treatment, and justice. In their role of supporting women in the legal process, the centres attempt to facilitate their experience at every stage. Another aspect of their work is prevention and sensitivity training and they focus on changing the conditions that perpetuate sexual assault.

The main goal of the centres’ association, the Regroupement québécois des CALACS, is to support its members by creating opportunities to meet together, providing resources and training. Our association also mobilizes individuals and groups in the struggle against violence against women, in particular by setting up new resources throughout the province, and by partnering with other groups who are working to improve the status of women. Finally, the Regroupement québécois des CALACS works for social, political and legal change. Its mission is to raise the public’s awareness of violence against women and also to inform decision-makers about the impact of their decisions on sexual assault victims. It is in this role that the Regroupement québécois des CALACS is here today to present its point of view on the draft bill respecting the Québec correctional system.

The Regroupement has presented briefs for a variety of public federal and provincial consultations on justice, in particular:

•        Brief concerning the federal government’s response to the review of the Corrections and Conditional Release Act in 2001;

•        Reaction to the provincial inter-ministerial committee’s report on confidentiality of personal information and conditional release and Bill 180 on the same subject, in 2001;

•        Brief during the federal consultation on “child victims and the criminal justice system,” in 2000;

•        Brief concerning requests for access to sexual assault victims’ confidential files (Bill C-46) presented in 1997;

•        Brief jointly presented with other groups when Bill 106-the Act respecting assistance and compensation for victims of crime- was under consideration in 1993;

•        Brief presented to the provincial government’s education committee during a consultation on the draft bill amending Québec’s Code des professions, in 1993;

The Regroupement also participated in the 1992 Justice Summit in Québec, as well as many “justice consultations” conducted by Status of Women Canada with particular target groups. The goal of these activities is always to raise awareness about the specific situation of women sexual assault victims and the importance of protecting their fundamental rights and responding to their needs.

The centres have existed for over 20 years. The perspective presented in this brief is therefore based on many years of front-line work, with and on behalf of women and children victims, and thinking about the issue of sexual violence.

In its Orientations gouvernementales en matière d’agression sexuelle (2001) the Government of Québec sets out a number of guiding principles to frame the actions of everyone who is working to end the different forms of violence against women. We mention them here because we believe they should also serve as a guide for the persons responsible for enacting and implementing the projected law respecting correctional services:

•        Everyone has a right to the respect of her or his physical and psychological integrity.

•        The protection and security of individuals must be assured in all spheres of life, private and public.

•        Sexual assault is an unacceptable social phenomenon; it must be denounced and condemned by society as a whole.

•        Sexual assault is an act of power and domination of one person over another.

•        Sexual assault is a serious crime against the person that must be punished by the judicial system.

•        The elimination of sexual assault will only be possible with the achievement of sexual equality, individual and collective responsibility, and respectful and responsible relations between individuals, particularly on the part of adults in their relations with children.

•        Sexual assault victims have the right to expect respect and empathy from all persons with whom they come into contact.

•        Sexual assault victims must have access to support in order to take back control over their lives.

•        Interventions with perpetrators of sexual assault must be aimed at bringing them to recognize and assume criminal responsibility for the assaults and preventing them from re-offending.

The rights to freedom and security demanded by women victims of sexual assault and society as a whole are fundamental rights inscribed in the Canadian Charter of Rights and Freedoms. The bill under consideration here must undertake to guarantee these rights and take all available measures to assure their effective application.

In this brief, when we use the terms “accused person,” “prisoner” or “offender” we refer to individuals who have been convicted of sexual assault. We do not profess to know the reality and appropriate measures for all individuals imprisoned under provincial jurisdiction.

Section 2 of the draft bill affirms that protection of society and compliance with court decisions are of paramount importance in the pursuit of reintegration of accused persons and offenders into the community. The framer of the bill indicates very clearly, as much to accused persons, prisoners and victims, as to the personnel who are responsible for implementing reintegration, assessment and supervisory measures, the spirit in which the correctional system should operate from now on. We totally approve of this statement.

We must renew women’s faith in the capacity of the judicial system to contribute to justice and increase their safety. Section 2 expresses the underlying theme that should help to increase victims’ confidence in the judicial and correctional systems.

Without a doubt, our main concern is the balance that needs to be achieved between assuring the safety of sexual assault victims and society and rehabilitating attackers. These goals, while not contradictory, are hard to balance without the coordinated efforts of the entire judicial and correctional apparatus to combat violence against women and children and promote the respect of everyone’s fundamental rights, including those of victims and attackers. If the Québec Government wishes to meet the goals referred to in the proposed reform, it must propose consistent and credible solutions that will reassure the public without being overly repressive.

This is the gist of what we want to say. Due to lack of time, we will not present an analysis of each section, but rather make general comments, referring to the sections that we consider more relevant to our goals.

We will address different elements:

•        The issue of sexual assault;

•        The context in which the reform is being introduced;

•        The values underlying our brief;

•        General comments on the draft bill;

•        Training needs of persons responsible for assessing accused persons, and the risk of re-offending;

•        Records and the information they should contain;

•        The role, place, and needs of sexual assault victims in the corrections system;

•        Re-education and rehabilitation;

•        Supervision and monitoring of accused persons in the community.

The issue of sexual assault is still, to a large degree, misunderstood. Too often myths and stereotypes are mistaken for knowledge. This is evidenced, among other things, by the use of the term pedophile. It is now used almost constantly to refer to the sexual assault of a child by an adult, although the notion of pedophilia is much more precise and is applicable to only a tiny percentage of the cases of child sexual assault.

Another of the more familiar myths is that sexual assault is committed in an alley, at night, by a stranger. In fact, the majority of sexual assaults occur in daytime, in a location familiar to the victim, and the attacker is someone known to her. Indeed, in 85% of the cases, attackers are family members, male friends, neighbours, acquaintances, work and recreation colleagues, etc. This is in fact one of the elements specific to this form of criminality that we insist must be taken into account in the bill under consideration.

Sexual assault is among the least reported of crimes for a wide variety of reasons, among them fear, persisting prejudice concerning the victims, and taboos surrounding sexuality, etc. Harrowing accounts of trials, decisions and sentences often considered to be unsatisfactory, and a few tragic cases of prisoners released without assessment or sufficient monitoring have left victims and large segments of the public convinced that justice is a scarce commodity. All this has contributed to undermining the justice system’s credibility among victims, their intimates and a large part of the population.

As result, in 2002, many men continue to commit acts of violence against women, particularly sexual assault, with complete impunity.

It is questionable, to say the least, that the conditions of release of accused persons are being reviewed in a context of scarcity: scant space in prisons (overpopulation) and cutbacks to supervisory, control and rehabilitation services.

We do not doubt that prisons are overpopulated. We also believe that those who are currently incarcerated present particular characteristics not unrelated to the nature of the imposed sentence. For example, there is a lot of talk about people who are jailed for unpaid parking tickets, but little or nothing is heard about the fact that prisons are most often filled with poor people, people with little formal education, people suffering mental health problems, people of colour, Aboriginal people, and the homeless. There are also women who have committed violent crimes, often in reaction to violence and abuse that has been directed against them. We believe that the judicial and penitentiary systems continue to reveal a large degree of discrimination, sexism and racism, and of this, we totally disapprove.

Moreover, we consider that the current tendency to harden or increase repressive measures as a means of combatting violence is inappropriate, including in situations of violence against women. This trend, so popular in the United States and Canada, raises many questions as to its effectiveness. We refer in particular to the imposition of special measures in Bill C-36 and the current reform of the Young Offenders Act by the federal government. We agree with some of the arguments recently invoked by the Government of Québec to oppose the federal government’s modification of this law-we do not believe that a more repressive system will automatically bring about decreased violence and increased safety.

The reform of the correctional system must not be carried out in a rush in order to clear out the prisons. This approach is only likely to increase feelings of mistrust on the part of victims and the general public with respect to the justice system in Québec and Canada.

We think that a prison sentence should convey a clear message about the gravity of certain crimes, including crimes of violence against women. It should say that society as a whole refuses to tolerate such crimes and will act to prevent them. The imprisonment of dangerous criminals is a means to protect victims and the community as a whole.

The period of detention should not only serve as a sanction for certain crimes, it should also serve as an occasion for the re-education of inmates, so that they understand the gravity of their actions and take responsibility for them by accepting the consequences and developing new social and behavioral skills. These goals should also apply to the periods when offenders are released, for example to work or pursue studies, with the protection and safety of victims and the community always paramount.

In this respect, the reintegration into the community of persons convicted of sexual assault must aim for more than developing the capacity to find and keep a job, obtain a diploma or comply with the road safety code: it must also aim to bring about a fundamental shift in their values concerning women and sexual equality.

In general, the bill expresses a commitment to supervising prisoners and providing information and the opportunity to be heard to victims. We think that the combination of these two elements could indeed pave the way to increasing the safety of sexual assault victims.

In order for this law to be fully effective, certain mechanisms and tools should be developed or improved:

•        Women victims should be involved at all stages, not only to receive information about their attacker’s release date and the attached conditions, but also to be consulted or actively involved in the assessment process leading to a decision to grant or refuse a release from custody;

•        Correctional personnel must be trained to recognize the specific impact on their work of the issue of sexual assault, in terms of assessing the dangerousness of attackers and informing the victims. Ongoing training of personnel will enable them to effectively carry out their role of control and re-habilitation.

•        When the crime is one of violence against women, rehabilitation should include a component of re-education for attackers based on the guiding principles the government has adopted in its campaign to end violence against women. Organizations that provide assistance to victims should be involved in developing the content. Social re-education should be an important part of the community reintegration process.

•        The means (human and financial resources) should be increased and improved to guarantee the safety of victims and the general public when permission for release is granted;

•        The public should be informed and made aware of the two goals of the reform: safety and rehabilitation.

Although these aspects need improvement, we support the spirit and content of the draft bill and consider it to be a major reform that takes the needs and safety of victims into account.

The training needs of persons responsible for assessing offenders

At what point does a woman who has been sexually assaulted need safety and protection?

– after the assault and before she reports it

– after the report and prior to the trial

– until the conclusion of the judicial process (pronouncing of the sentence)

– after her attacker has been released

Assessment of the danger and risk represented by the attacker at each of these stages should be ongoing and conducted with the help of victims if they so desire.

We believe it is essential that correctional services personnel be sensitized and trained concerning the gravity of the impact of sexual assault on victims and the particular risks they face. As we mentioned earlier, in 85% of the cases, victims know their attacker and feel particularly vulnerable as a result. Attackers often know their victim’s address, their friends, their habits, etc.

Because sexual assault charges are often reduced, the sentences are reduced also. In the correctional services system, a short sentence conveys the message that the acts are less serious and that the potential for violence or re-offending on the part of the attacker is not very high.

Very often too, this individual has not committed any other offences and has a good reputation at work and in his community. He does not, therefore, correspond to the usual criteria for criminality or dangerousness. If victims are not explicitly involved in assessing the personal characteristics of their attackers, or if their dangerousness is assessed without an understanding of the issue of sexual assault and the point of view of the victims and intimates, there is a chance that the risks attackers represent for victims and their community will be underestimated.

It is only relatively recently that the various stakeholders have become familiar with the issue of sexual assault. Significant efforts have been made in the last years with respect to governmental sexual assault guidelines (Orientations gouvernementales en matière d’agressions à caractère sexual). Still, we have seen that many workers are not always completely familiar with the nuances of this question and as a result do not possess all the elements required when they must make a decision that may have consequences on the safety of victims.

The Regroupement québécois des centres d’aide et de lutte contre les agressions à caractère sexuel recommends that the Ministère de la Sécurité publique set up an ongoing training program for all departmental staff who are likely to deal with the issue of sexual assault in the course of their work.

We have these workers in mind:

Police officers and students in police training programs;

Public security officials involved in sexual assault policy development and implementation;

Correctional services officers, parole officers, correctional counsellors and persons responsible for granting conditional releases.

The training should comprise the following elements:

•        The causes and definition of sexual assault;

•        Links with other forms of violence against women, myths and stereotypes, changes in the laws;

•        Consequences of sexual assault, needs and rights of victims;

•        The particular needs of women who suffer more than one form of discrimination (in addition to that based on sex, for example women of colour, disabled women, etc.);

•        Approach to employ when intervening in a case involving sexual assault;

•        Impacts of the assault on women (fear, doubt, hesitation) in terms of their attitudes to the judicial system;

•        The role of each worker in the protection of victims and prosecution of offences of this nature;

•        Assessment of the dangerousness of attackers, in particular the risk that sexual offenders will re-offend.

Further research must also be undertaken in order to improve the understanding and tools used to assess the risk of re-offending. We would like to see victims involved in this process if they desire it, as well as the organizations who represent them and who have information about the attackers that is specific to this form of criminality (their motivation, the means employed and context of the assault, etc.).

The RQCALACS recommends that the Ministère de la Sécurité publique and the Ministère de la Justice* form a joint working group whose mandate would be to improve the knowledge, tools and mechanisms for assessing the specific dangerousness of offenders charged with sexual assault. This group should include representatives of sexual assault centres and researchers.

Records and the information that should be included in them

The introduction of a single record on accused persons is also a significant step forward with respect to knowledge of offenders, monitoring and assessment.

Victims’ access to relevant information will also be aided by the centralization of information in a single record. However formal mechanisms need to be provided that will ensure women’s easy and safe access to this information. This means that there should be a simple and accessible mechanism that would enable women who have moved since reporting the assault to find out for themselves how the case is progressing and what is happening with the attacker. Information concerning this mechanism should be systematically transmitted to all complainants and be available at assisting organizations, local community service centres (CLSCs), lawyers’ offices, etc. This does not, however, lessen police officers’ responsibility to provide information to victims.

Section 718 of the Criminal Code lists the principles governing sentencing. In short, the law says that sentencing should be driven by the goal to contribute to a just, peaceful and safe society by imposing just sanctions aimed at denouncing unlawful behaviour, deterring and isolating offenders and rehabilitating them. The section also says “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

The problem we are facing now is that even when sentences are consistent with these principles (which is not always true as far we are concerned), this is not the case when they are implemented. In fact, officials have a greater power to intervene than do judges. More alarming still is the fact that “their decision is often guided by administrative or budgetary constraints,” according to judges Lebel, Brossard and Biron in an appeals court decision handed down in 1997.

In this decision, judges Lebel, Brossard and Biron denounced the discrepancies between decisions pronounced by judges after examination and the implementation of these decisions by correctional services personnel that often render them null and void. They affirmed that premature release of inmates could be qualified as incitement to re-offend. They also asserted that a short sentence does not necessarily imply that the offender is not dangerous and can be released at any time.

Currently, conditional releases are sometimes granted prematurely, expeditiously and automatically. The possibility of parole after serving one-sixth of the sentence has become the norm and not a privilege. What are the advantages, other than financial ones?

We question the reasons behind the Ministère’s decision to maintain a double assessment and decision-making structure concerning decisions to grant offenders various forms of release-the Comité d’études des demandes de sorties and the Commission québécoise des liberations conditionnelles. The reasons for this are not clear, particularly when there have been strong criticisms of the mechanism due to past experiences of its inherent risk for error and contradictions. We can hardly be expected to encourage the Ministère to maintain this way of operating.

The draft bill still seems to invest correctional services personnel with a lot of discretionary power to grant temporary absences. We continue to worry about the undue influence of administrative or financial motives in this respect. The fact that the members of the Commission québécoise des liberations conditionnelles are from outside the prison system would seem to offer a better assurance of impartiality and independence.

As it stands, the draft bill does not indicate if refusal to grant parole on the part of the Commission could be reversed by the decision of a Correctional Services officer to grant permission for a temporary absence. It that is the case, we would be in disagreement with this manner of operating.

Gradual, supervised rehabilitation should be carried out after a period of detention during which different means are offered to assist offenders in becoming aware of the consequences of their acts, rehabilitation, acknowledging responsibility and changing their behaviour.

In paragraph 4 of section 3, the framer of the bill charges correctional services with “the development and implementation of programs and services that contribute to the reintegration into the community of persons committed to their custody.”

This section should enable correctional institutions in Québec, like federal institutions, to develop programs aimed at developing offenders’ awareness of their responsibility while serving a prison sentence and not only, as is often now the case, as an alternative to incarceration or as a condition for releasing an accused person.

In this respect, rehabilitation success rates are significantly higher in federal prisons, despite the presence there of the most serious offenders. It seems that it is more acceptable to invest in rehabilitation and monitoring programs at that level. Although financial and human resources could be improved, progress can still be observed.

in Québec, despite all the talk, there seems to be much less interest in a veritable investment in mechanisms and resources for re-education. We recall that when Ombudsman Daniel Jacoby tabled a fact-finding report on the state of Québec prisons in 1999, criminologist M. Normandeau told the media that the government had recovered $26 million by closing five prisons but had only injected $1 million in the community resources mandated to carry out its rehabilitation projects.

In the same fact-finding report, the Ombudsman publicly announced that 30% of inmates had serious drug problems. This, while funding for drug treatment programs is melting away.

Degrading socio-economic conditions, increasing unemployment and poverty, a strained social service network, diminishing budgets and resources for therapies (for example to treat substance abuse) are among the factors confronting rehabilitation resources. If in addition to all this, the budgets for supervision and control measures are continually reduced, the resources set up to provide rehabilitation services will no longer be able to fulfill their mandate. We believe that sufficient investments must be made in qualified personnel who are trained and capable of assuring that offenders receive adapted support for community reintegration.

In section 15, the framer of the bill stipulates, “Correctional counsellors shall, in particular, develop and implement reintegration programs and support services, encourage inmates to develop an awareness of their behaviour and assume responsibility for their actions, and act as resource persons with respect to their delinquency problems.”

Naturally, tools and programs specifically related to sexual assault will be required. The Regroupement québécois des CALACS wishes to be involved in training professionals in the correctional services network. We want to ensure that rehabilitation programs, both within prisons and in the community, are based on the principles we have advocated in this brief. It should be kept in mind that these principles are consistent with the guiding principles of the Orientations gouvernementales en matière d’agression à caractère sexual and with the principles of fundamental rights recognized in human rights charters. We are in fact concerned about the presence of a perspective that favours the use of programs that are not at all aimed at developing offenders’ acknowledgement of and responsibility for their behaviour.

Victims must be given information at every stage of the judicial process. With respect to provincial correctional services, this obligation applies to the conditions attached to pre-trial release, sentencing conditions and those attached to temporary absences or permanent release from custody.

In addition to transmitting this essential information to the victim of a convicted person, correctional services must also inform victims of their right to be heard, and take into account information given to them by victims about their attackers, while assuring and maintaining confidentiality.

To this end, we propose that a simple and accessible mechanism be introduced that would enable women who have moved since reporting their assault to inform themselves of the progress of their case and procedures. A form explaining the procedure to be followed should be systematically provided to complainants and be available in assistance organizations, local community service centres (CLSCs), lawyers’ offices, etc. This does not, however, lessen the responsibility of police officers and correctional services personnel to provide information.

Minister Ménard affirmed at various times during his mandate as Minister of Public Security that “the reintegration of offenders into the community constitutes the best strategy against re-offending. Rigorous monitoring coupled with professional and adapted support for individuals who have been released from custody will provide better protection for society.”

Currently the staff and other means at the disposal of correctional services for the supervision and monitoring of offenders outside the prison are still inadequate to ensuring effective protection, to say nothing of re-education!

We concur with the comment of Madame Johanne Valée, director of the Association des services de rehabilitation sociale du Québec: “When the offender is released under supervision, workers should be able to count on a network of resources to consolidate the rehabilitation and re-education process begun during the period of incarceration. In addition, these same workers should be in a position to quickly intervene in the case of a breach of conditions, including the power to return the individual to a more secure location if necessary.”

Unfortunately, as we have often seen in our work with sexual assault victims, this is not at all the case. The Ministère reiterates its intentions in this respect in the draft bill but it remains to be seen what new human and financial resources will be furnished in order to accomplish this goal.

Another way to contribute to the security net is to strengthen the confidence and involvement of the public in the justice system by more transparency, information, awareness-raising and education.

We recommend that sections 169 and 178 of the draft bill be amended to more clearly restate the twofold goal of the law respecting correctional services. These two objectives should govern all future community interventions.

Every citizen should refuse to tolerate violence and act to protect when he or she witnesses an act of violence. This is not to be construed as encouraging the public to take justice into their own hands or to assume the role of the police. It is certainly not meant to reduce the responsibility of the police to maintain order and safety. The aim is more one of instilling greater collective responsibility with respect to violence against women and children.

The need to educate the public is particularly urgent when it comes to the crimes that specifically target women (sexual assault and wife battering) because a person who is released from custody after being convicted of such a crime is often not perceived as a danger to the general public, but only to the individual women, “who makes him lose control or provokes him.”

The Ministère de la Santé et des Services sociaux (Department of Health and Social Services) initiated and supported the creation of independent agencies to inform and assist individuals wishing to file complaints about services provided by this network. We recommend that the Ministère de la Justice and the Ministère de la Sécurité publique explore the possibility of jointly proposing a similar initiative. Alternatively, they could draw on the experience of the Ombudsman to offer victims the opportunity of independent recourse with respect to the judicial and correctional systems.

These few recommendations are a reminder that the Québec correctional system should contribute first and foremost to increasing the safety of the public and protecting society. The release of offenders should serve the interests of the whole population, including women victims of violence.

The diverse forms of release from custody available to an offender during his prison term and the period of his reintegration into the community should be authorized based on judicious decisions that take into account the vulnerability and particular situation of women victims of sexual assault. These decisions should also hinge on the actual existence of monitoring resources in the community.

In this brief, we have attempted to establish in more detail the measures that should be taken to ensure the respect of citizens’ fundamental rights in the implementation of correctional services.

We fully expect that the questions we raise in this brief will become the subject of specific recommendations to improve the draft bill under consideration.