BRIEF TO THE
STANDING COMMITTEE ON HUMAN RESOURCES, SKILLS AND SOCIAL DEVELOPMENT
AND THE STATUS OF PERSONS WITH DISABILITIES (HUMA)
HOUSE OF COMMONS
40th Parliament, 3rd Session
AN ACT TO AMEND THE OLD AGE SECURITY ACT
(ELIMINATING ENTITLEMENTS FOR PRISONERS ACT)
Presented by the Canadian Criminal Justice Association
October 27, 2010
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) regarding Bill C-31, An Act to amend the Old Age Security Act (or Eliminating Entitlements for Prisoners Act). The CCJA has some concerns regarding C-31. We outline them here and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.
Overview of the Old Age Security Act (1952)
The Old Age Security Act is Canada’s non-contributory pension scheme. Designed to provide a modest income to those over 65, Old Age Security (OAS) is a means-tested benefit that is clawed back with increases in income, with a complete claw-back at higher income levels. Eligibility and rates also depend on the number of years that the applicant has lived in Canada, and a number of provisions exist to increase payments to those with particular needs, including allowances to spouses aged 60-64 and supplements for those with very low income.
The Old Age Security Act came into force in 1952, replacing legislation from 1927 requiring the federal government to share costs with the provinces. The benefit was originally a flat, universal benefit paid as a right to all seniors. The OAS is now paid monthly, is considered taxable income and is fully indexed. The benefit can be received by certain Canadians residing outside the country and can be combined or supplemented with state pensions from certain other countries through international agreements. The benefit is now extended to same-sex common-law partners. In terms of broader social security provision, the OAS is considered the most generous and most broadly received benefit in Canada, as are similar social security benefits in many other countries.
The Guaranteed Income Supplement (GIS) is a monthly benefit paid to eligible, Canadian seniors who receive OAS and who have little or no other income. The two benefits are paid together. However, unlike the OAS, the GIS is not taxable income and recipients must re-apply annually for the GIS benefit by filing an income statement or by completing an income tax return. Thus, the amount of monthly payments determined for the year may increase or decrease according to reported changes in a recipient’s yearly income.
According to estimates obtained from the Correctional Service of Canada through a request filed under the Access to Information Act (1984), as of 21 March 2010 there were 398 federal prisoners incarcerated in federal penitentiaries and 637 federal prisoners supervised in the community who were above the age of 65 – the age that Canadian citizens are eligible to apply for OAS and GIS benefits. Figures concerning the number of provincial and territorial prisoners above the age of 65 on this date were not compiled.
It should be noted that the average age of individuals admitted to federal prisons has increased in the past decade (Public Safety Canada, 2009, p. 45). Whereas individuals’ aged 50 and older represented 7.1 percent of these admissions in 1999-2000, this category represented 11.2 percent of these admissions in 2008-2009 (ibid, p. 46). In 2008-2009, persons’ aged 50 and older represented 17.9 percent of the federal prison population (ibid, pp. 49-50).
Current Proposal (Bill C-31)
Bill C-31 proposes a number of changes to the Old Age Security Act. For the purposes of this discussion, we focus on three proposals contained in the legislation.
First, this legislation proposes to eliminate old age pension benefits, with the exception of the first month of incarceration, for those serving sentences in federal penitentiaries, as well as terms of imprisonment of 90 days or more in provincial-territorial prisons in jurisdictions that enter into agreements to enforce the amendments.
Second, the Bill proposes that incarcerated prisoners be allowed to apply for the reinstatement of their pensions, the payment of which they would receive within the first month of their release from prison. However, should they not apply for reinstatement pension payments will not recommence.
Third, in a stated effort to mitigate the loss of income to the spouses and common-law partners of individuals who are incarcerated that would no longer be eligible for old age pension benefits, the amendments in the Bill would allow for these spouses and partners to apply for OAS and GIS as single-income earners. While affected households lose the OAS and GIS pension income of prisoners, this provision is included to maximize the OAS and GIS contributions their spouses and common-law partners can receive while they are incarcerated except for the month when they are released and again receiving these benefits should they re-apply.
The CCJA recommends that Bill C-31 not receive the legislative support of Parliament for the following reasons:
1. As noted above, the OAS and GIS were enacted as a benefit for Canadian seniors, with funding levels determined by household income levels and time spent living in Canada. By depriving a significant portion of currently eligible prisoners from this entitlement and arbitrarily punishing these individuals beyond their court-imposed sentences, the law, if passed, may violate section 12 of the Charter of Rights and Freedoms, which states that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”.
2. This legislation is also discriminatory in that its passage would result in the creation of a tier of senior citizens ineligible for a government program, potentially violating section 15(1) of the Charter which states that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or the ethnic origin, colour, religion, sex, age or mental or physical ability”. Should this law be passed the Government of Canada could face Charter challenges regarding whether or not current incarceration represents lawful grounds for discrimination. Such cases, if tried in court, could carry a considerable cost to litigate.
3. Government officials have consistently defended the elimination of pensions for a significant portion of the prison population on the basis that these prisoners already receive a considerable amount of assistance paid for by Canadian taxpayers such as food, shelter and programming. However, to deny benefits to prisoners on the basis that they already receive “government assistance” sets a precedent that could be used to justify the denial of benefits to individuals who are housed in government-funded institutions such as hospitals, mental health centres and public housing.
4. Once individuals have been sentenced, we do not agree that additional punishment in the form of withholding pension payments serves a progressive purpose. As section 11(h) of the Charter reminds us, any person charged with an offence, once the sentence for which he or she has been convicted has been handed down, should not be tried or punished for it again.
5. Taking pension benefits away from prisoners until their release undermines public safety goals by taking away funds that they may need to obtain food and shelter upon their release from prison. As noted by Public Safety Canada researchers Griffiths et al. (2007, p. 4), it is well documented that when individuals enter prisons they “may have lost their livelihood, their personal belongings”, as well as “their ability to maintain housing for themselves and their family”. In these circumstances, the expenditures associated with re-establishing oneself on the ‘outside’ involve many large one-off costs such as deposits on a rental unit and purchasing essentials. The clawing-back of pension benefits from prisoners, and the subsequent waiting period of several days or weeks for them to receive benefits once they are released into the community, will likely mean in real terms that no funds will flow to ex-prisoners when they may need them the most. The collection of pension benefits while incarcerated, as it stands today, has a crime prevention benefit as the modest stability these funds offer provide ex-prisoners with resources to resettle. Without this, the chance of re-offending resulting from need or stress may increase. Stripping prisoners of their pension benefits limits chances of survival and growth as healthy, independent individuals who have dignity and who have respect for themselves and others upon their release.
6. The Bill also assumes that the re-application process for pension benefits would not pose an undo burden to prisoners, the professionals that assist them with their community release plans and government institutions. As it stands, social workers and other professionals who assist prisoners are already faced with the onerous task of helping individuals – who in many cases have mental health, literacy and other difficulties – with their reintegration into society (see Griffiths et al., 2007). If this law were to be passed, additional resources may be needed to ensure that prisoners have the assistance required to navigate the bureaucratic process involved with their pension applications.
7. This legislative initiative has been touted as a measure to support the rights of victims of crime. However, this argument ignores a vitally important principle of criminal justice systems in democratic countries whose goal is not revenge. Criminal justice is not a zero-sum game. Removing benefits or services from prisoners does not improve the situation of victims.
8. This legislation in no way bolsters the rights of victims. Moreover, it creates additional victims by extending the punishment of prisoners to their families. Every household has bills and expenses to pay. In cases where a prisoner has a household to which they contribute, the loss of income that would result from the elimination of their pension benefits could result in financial hardship for those they have left behind, despite the provisions in the Bill that allow spouses and partners to apply for these benefits as single-income earners. This measure could also exacerbate economic strains for those who are already struggling to pay for household relocation to communities where prisons are located or the costs of travel and phone calls incurred to maintain contact with their incarcerated loved ones (see Hannem, 2009). In these cases, Bill C-31 could potentially contribute to household instability and disintegration, which creates high costs to all Canadians through expenditures related to civil court, legal aid, child welfare, mental health and other services.
9. Recent media coverage aptly demonstrates the problems with optics that government pensions for prisoners engender. However, we encourage legislators to exercise moderation when it comes to this Bill. The extensive media coverage of the case of Clifford Olson distorts the profile of prisoners who are currently receiving pension benefits, and also obscures the impacts their elimination for prisoners may have. Further, records obtained through requests for government research related to this legislation filled under the Access to Information Act (1984) with the Correctional Service of Canada, Public Safety Canada, Human Resources and Skills Development Canada, and the Treasury Board Secretariat did not include cost estimates related to its implementation. Expenditures that could be incurred as a result of this policy include the administrative costs of processing pension cancellation and reinstatement applications from prisoners, and related applications from their spouses or common-law partners. When legislation is tabled rapidly in response to a perceived public concern in a manner that excites and promotes emotion, even outrage, the successful reintegration of prisoners is endangered. Moreover, the policy analysis that is needed to evaluate the feasibility of implementation, as well as the direct and indirect costs, often does not occur. Parliamentarians should not pass laws where such research has not taken place.
In our estimation, the Bill before the House should be abandoned. It proposes to eliminate OAS and GIS for federal prisoners, and opens the door to eliminating these entitlements for prisoners serving sentences of 90 or more days in provinces and territories that enter into agreements to enforce this amendment to the Act. This will not only diminish the ability of prisoners who, in the vast majority of cases will be released from custody, to reintegrate into society, but will also harm their families by depriving them of income that their incarcerated partners contribute to support their households.
In keeping with Canadian rehabilitative and social integration philosophies, in cases where convicted persons receive a prison sentence it is the deprivation of liberty itself that is prescribed as the punishment – nothing more. To arbitrarily punish prisoners and their families in this manner extends the victimization resulting from crime. Should legislators wish to better meet the complex needs of victims, it is recommended that more robust investments be made in the provision of information, compensation and services for those impacted by crime, rather than artificially attempting to balance the scales of justice by stripping prisoners of the entitlements of citizenship.
If this legislation is passed, the Government of Canada may also face potential court challenges related to sections of the Charter of Rights and Freedoms. In the rush to pass this legislation in order to address public outrage regarding the receipt of entitlements by individuals who are unrepresentative of the prison population like Clifford Olson, it also appears that the government has not considered the administrative costs associated with implementing this Bill such as the processing of pension reinstatement applications. These costs ought to be accounted for prior to the passage of any such legislation.
Should the committee desire more information on the allocation of pensions to prisoners, or feel the need for further study of this issue, we would be happy to assist.
References and Supporting Documents
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
Correctional Service of Canada (2010a). Federal Offenders Age 65 or More – final, obtained through ATI request A-2010-00163.
Correctional Service of Canada (2010b). Age Addendum, obtained through ATI request A-2010-00163.
Correctional Service of Canada (2010c). Federal Offenders Age 50 or More, obtained through ATI request A-2010-00163.
Correctional Service of Canada (2010d). Federal Offenders Age 50 or More (by region), obtained through ATI request A-2010-00163.
Correctional Service of Canada (2010e). Federal Offenders Age 65 or More (by offence grouping), obtained through ATI request A-2010-00163.
Griffiths, Curt T., Yvon Dandurand and Danielle Murdoch (2007). The Social Reintegration of Offenders and Crime Prevention, Ottawa: National Crime Prevention Centre – Public Safety Canada.
Hannem, Stacey (2009). Marked by Association: Stigma, Marginalisation, Gender and the Families of Male Prisoners in Canada, Unpublished Doctoral Dissertation, Ottawa: Department of Sociology and Anthropology – Carleton University.
Minister of Human Resources and Skills Development Canada (2010). Bill C-31: An Act to amend the Old Age Security Act (Eliminating Entitlements for Prisoners Act). 1st Reading, 1 June 2010, 40th Parliament, 3rd Session. 2010.
Public Safety Canada (2009). 2009 Corrections and Conditional Release Statistical Overview, Ottawa.
Service Canada (2010). Overview of the Old Age Security Program. Last updated 5 May 2010.