Proceedings of the Standing Senate Committee on
Human Rights
Issue No. 17 - Evidence - May 3, 2017
OTTAWA, Wednesday, May 3, 2017
The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to study on the issues relating to the human rights of prisoners in the correctional system.
Senator Jim Munson (Chair) in the chair.
[English]
The Chair: Good morning, senators.
Before senators introduce themselves, just to update folks after the two-week break, this is a study on human rights of prisoners in our Canadian correctional system. We've had many witnesses before us and we're learning a lot and understanding what is going wrong and what is going well in our prison system. We hope to have a report out within two years, but we also hope to have a report out sometime this year that will show what is happening. We're off in two weeks to our first visitations to Brockville, Millhaven, Joyceville and Montreal institutions. We are on a learning curve. We feel the Canadian public should have access to a new and instructive report on the Canadian prison system.
Before the Auditor General of Canada speaks to us, I will ask senators to introduce themselves, beginning with our deputy chair.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
Senator Andreychuk: Raynell Andreychuk, Saskatchewan.
Senator Martin: Yonah Martin, British Columbia.
Senator Pate: Kim Pate, Ontario.
Senator Hartling: Nancy Hartling, New Brunswick.
The Chair: And I'm Jim Munson. I say every time that my heart is in New Brunswick, but I'm an Ontario senator.
Today, we'll continue our study on the human rights of prisoners in the Canadian system, which we began some time ago. We begin testimony today with the Auditor General of Canada, Michael Ferguson, who is accompanied by Carol McCalla, Principal.
Sir, the floor is yours, and then, as usual, senators have many questions. Welcome to our committee.
Michael Ferguson, Auditor General of Canada, Office of the Auditor General of Canada: Thank you for inviting us to discuss our audit reports to help inform your study on the human rights of prisoners in the correctional system.
I would first like to briefly talk about our past audits of federal programs for indigenous peoples. Through these audits, we found that many government services provided in First Nations communities continued to be inferior in quality to those in nearby communities.
[Translation]
For example, our 2014 audit of Public Safety Canada's First Nations Policing Program found that there was no clear requirement for first nations policing services to comply with provincial policing standards. This different level of service potentially risked the health and safety of police officers, detainees, and the public.
More recently, we did two audits of Correctional Service Canada — or Corrections Canada — one in 2015 and one in 2016. These audits focused on the timely access to programs that supported the rehabilitation of offenders with sentences of two years or more. Indigenous offenders now represent more than 25 per cent of the 15,000 men and women in federal custody — a proportion that has grown significantly over the last decade.
Although Corrections Canada cannot control the number of offenders receiving federal sentences, it can provide them with timely access to rehabilitation programs and culturally appropriate services to prepare them for early release on parole — which can influence how long and how many offenders remain in custody.
Our 2015 audit on male offenders in federal custody found that about 80 per cent of offenders remained in custody past their first parole eligibility date, largely because of delayed access to rehabilitation programs. Moreover, most offenders were released directly into the community from medium- and maximum-security penitentiaries. As a result, these offenders had less time to benefit from a gradual and structured release into the community to support their successful reintegration.
[English]
Our 2016 audit examined access to correctional programs for indigenous offenders. We found that as the population of indigenous offenders grew, Corrections Canada couldn't provide them with the rehabilitation programs they needed when they needed them. We also found that access to culturally specific programs was uneven across institutions. For example, healing lodges didn't exist in all regions. We found that offenders who participated in healing lodge programs had low rates of reoffending upon release, yet Corrections Canada had not examined ways to provide greater access to these lodges.
Most indigenous offenders in federal custody were eligible for release on parole after serving the first year of their sentences. Parole supervision is an effective way to support the successful return of an offender to the community. However, we found that two thirds of released indigenous offenders had never been on parole. Overall, Corrections Canada prepared indigenous offenders for parole hearings less often than non-indigenous offenders, and when they did, it was later in their sentence.
Corrections Canada used the Custody Rating Scale to determine an offender's security level and need for a rehabilitation program. We found that this tool didn't consider the unique needs of indigenous offenders as required. More than three quarters of indigenous offenders were sent to medium- or maximum-security institutions upon admission and were referred to a rehabilitation program. These were at significantly higher levels than non-indigenous offenders. Once at higher levels of security, few offenders were assessed for a possible move to a lower level before release, even after they completed their rehabilitation programs.
There are about 700 women in federal custody and a further 600 under supervision in the community, many of whom have been identified with mental health issues. We are currently conducting an audit that focuses on female offenders and their access to programs and services. We plan to report on this audit this fall.
[Translation]
The Office of the Auditor General is also the auditor for the territorial governments, and we report directly to their legislative assemblies. In 2015, we conducted audits on correctional services in the three territories. We found case management deficiencies that limited efforts to rehabilitate offenders and prepare them for release back into the community. For example, we found that access to rehabilitation programs and mental health services was inadequate and that space shortages risked the safety of staff and inmates in many correctional facilities.
[English]
Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions the committee may have. Thank you.
The Chair: Thank you, Mr. Ferguson.
I would like to welcome Senator Ngo, who just joined us, to the committee.
I will ask a couple of opening questions. You tweaked our curiosity when you said you are currently conducting an audit that focuses on female offenders and their access to programs. What has prompted you to do that? What have you heard thus far that would make you and your officials want to go into prisons and focus on this particular issue?
Mr. Ferguson: I think you can see from the audits that we're bringing to your attention today that, in 2015, we reported on prisoners in general and their access to programs that are aimed at their rehabilitation. Then, after doing that, we decided that we should look at two subpopulations, the indigenous offenders and the female offenders. We started with the indigenous offenders. That's a report, again, that we are referring to you today that we released in 2016, and we are currently working on the audit of female offenders and the programs that are available to them for rehabilitation.We decided to do the indigenous offenders before the female offenders partly because of the timing of the report into the Ashley Smith situation. We are now currently underway with the audit on female offenders.
The Chair: Thank you for that. Just very briefly, when people use the term and you use the term "culturally appropriate services'' to prepare them for early release on parole, could you define what that means?
Mr. Ferguson: That was, in particular, something related to the indigenous offenders and Correctional Service Canada. We identified in that audit that they held consultations with various Aboriginal groups about the types of programs and services that they should be offering to indigenous offenders that, I guess, take into account the indigenous culture. Correctional Service has put things in place like healing lodges, access to elders and something that they call a Pathways Initiative, which is an initiative where there is sort of one-on-one mentoring really for indigenous offenders.
Correctional Service has identified a number of different programs that are available to indigenous offenders that are culturally specific programs. It's up to the offender to decide if they want to participate in those programs or want to participate in the mainstream programs, but one of the other things that we identified in the audit is that those types of programs are not available in all regions. There could be indigenous offenders who are housed in certain regions of the country but who would not have access to some of those programs that were designed specifically for indigenous offenders.
The Chair: I'd like to acknowledge Senator Bernard, who just joined us.
Senator Pate: Thank you for all the work you've done and your department has done for many years. It's been incredibly valuable and much appreciated.
One of the things you looked at, as you mentioned, when you did your most recent audit in terms of indigenous prisoners was some of the agreements that have been developed under sections 81 and 84 in particular of the Corrections and Conditional Release Act. I'm curious: At the time of your audit, how many section 81 and 84 agreements had been developed and signed with indigenous communities? As a subset of that, how many were for individual agreements, so individual prisoners or parolees, and how many were for groups of individuals? That's one question. Depending on that, I will have a supplementary as well.
Mr. Ferguson: What I'll do is refer you to the specific section in the report where we talk about that, and then I'll ask Ms. McCalla to provide any other details.
We deal with that in paragraph 3.69 in the report that we released in 2016 on preparing indigenous offenders for release, and the numbers that we have in the report are that we found that 274 offenders were released with a section 84 release plan, which, in fact, was up from 143 four years before that. I'll ask Ms. McCalla whether we have any more details specifically to the types of numbers that you were asking about.
The Chair: Just before we go to that, a clarification for people who are watching: When you both talk about sections 81 and 84, could you tell us what that means so that we can have a better understanding?
Carol McCalla, Principal, Office of the Auditor General of Canada: Certainly. Section 81 is a provision under the Corrections and Conditional Release Act that allows for Aboriginal community organizations to be involved in the custody of offenders. We examined the number of offenders who participated in section 81 institutions. CSC has set up healing lodges across the country for indigenous offenders. In the audit, we noted how many offenders had participated in those.
Our concern was that access to healing lodges was quite limited. There's only about enough to deal with about 10 per cent of indigenous offenders in custody. For male offenders, they operate at minimum security level, and most indigenous offenders are held at maximum and medium security level.
Of concern to us as well was that the Truth and Reconciliation Commission had called for the federal government to decrease barriers to these section 81 healing lodges and that we hadn't seen that Corrections had been working to do that.
For women offenders, there are only two healing lodges available in the Prairie provinces, so access for indigenous offenders is quite limited. There are no healing lodges in Eastern Canada, so if they wanted to participate in those programs, they would have to move out of region. One key principle of corrections is to keep offenders close to their home communities. That's a very important principle for their rehabilitation. So we reported on the number of offenders who had participated in this program.
For section 84 releases, that's where Corrections can release to a community organization while an offender is on parole or on conditional release to the end of their sentence, and they play a role in their supervision in the community. There we had found that, while the numbers are still low, they have increased significantly over the past three years.
Senator Pate: Thank you for that. In line with exactly what you were just discussing, the reason I was asking how many were with indigenous communities, as well as how many were individual contracts versus group, is that, as you know, the legislation is far more permissive than the policy that has been implemented by Corrections. The committee would be happy to hear any of your commentary on that in terms of whether you're analyzing the extent to which the spirit of the law has been implemented and how much the policy is impacting.
I think you've answered the question, though. I think the answer is that there are no section 81 agreements for individual prisoners that you found.
Ms. McCalla: We examined the section 81 facilities that were operated by Corrections. I believe they also run section 81 facilities in agreement with community organizations as well. So they're CSC-run and also ones that are managed by community groups or organizations. We didn't examine the agreements themselves. We examined how many offenders had access to them. Whether or not they were CSC-run or community-run was not of issue for us. Our point was access. Do they have access to these types of services?
In terms of how the legislation has set up these programs, the legislation allows for the creation of section 81 agreements for the custody of indigenous offenders, as well as for section 84s, and section 84 allows it to be to a community, a First Nations community, or a community organization, say, off-reserve. What we found, though, is that CSC has just, for example, set up their healing lodges for men at minimum security, but the legislation doesn't set that as a requirement.
For section 84 releases, there were some with community organizations. Again, it's still very limited, which we make note of, but it has increased significantly over the past three years. But there is room to move forward on that.
Senator Pate: Thank you, Ms. McCalla. And just to clarify, your read would also be that the legislation would allow all levels of security to be in section 81 options?
Ms. McCalla: It certainly doesn't prohibit it.
Senator Pate: In addition, the legislation actually could extend to ethnocultural communities as well, not just indigenous but also Black prisoners, which is one of the areas the committee is looking at as well.
Ms. McCalla: Our focus was on indigenous offenders; we looked at their access to these services.
The Chair: We have Senator Fraser with us, who is replacing Senator Hubley.
Senator Fraser: Yes, I am, and I apologize to all, particularly to the witnesses, for having been held up.
Senator Omidvar: Thank you, Mr. Ferguson and Ms. McCalla, for coming to give us all this information. We've been on this metaphorical road for about a month, and we're really going to go on the road soon.
We heard from Ivan Zinger, who is the Correctional Investigator, and he referred us to the ethical climate survey of 2012, which rated and did a benchmark test on how staff were feeling about approaching their leadership on ethical issues. The report that came out clearly indicated there was room for improvement, staff were not certain that the organization had a practice for detecting and dealing with ethical behaviours, et cetera.
I was unable to find any reference to ethical behaviour in your reports. Was this a consideration at all as you prepared your 2016 report? There is the 2015 report as well.
Mr. Ferguson: That was not the focus of the report. Again, both of these reports that we're presenting were about the offender's ability to get access to the services that they needed to prepare them for a parole hearing or to prepare them for release. It was all about the rehabilitation side. We weren't looking specifically at the employees of Correctional Services other than looking at things like did they have the training they needed and did they have the guidance they needed to be able to do some of the things in that area? We found there were some weaknesses. For example, they're supposed to consider things like the Aboriginal social history of an indigenous offender when they come into the system, but they didn't have sufficient guidance on how to do that. The audits that we were conducting didn't get down into their relationship with the organization.
Senator Omidvar: In your presentation, you talked about the audit that you're planning for this fall. I think there is a direct relationship between the women in the prisons and the staff, as you have pointed out, and how the staff work. How they are either trusted or not by their leadership has an impact on the lives of the prisoners and, in particular, women, since the ratio of men working in the front lines with women prisoners is really high.I want to know whether you will consider the ethical climate survey report and its implications for your fall audit.
Mr. Ferguson: It's not something that we have so far built into the audit, but it's something that we can take back and consider whether there might be an interesting line of inquiry on that. We will consider it.
Senator Andreychuk: I could characterize your work as a program audit, right, rather than a cost audit; is that correct?
Mr. Ferguson: Certainly. We were looking at whether it's a program or multiple programs, but it essentially would be an audit of program, yes.
Senator Andreychuk: I'm interested in healing lodges because it's supposed to be culturally appropriate, but at the same time it's rehabilitation into a community that's broader than their own cultural community. Did you do any assessment of the balance between the issues of reoffending and trying to curtail that activity and how it blended with doing it from a cultural point of view?
I say that because I come from an area where we do have healing lodges, et cetera, and the struggle is to have the capacity for staff and otherwise to be able to deal with the whole criminal element and also the cultural element, and it would take a unique person with a lot of training to be able to deliver that program. From time to time, the difficulties have come when you have someone who is obviously part of the community, knows the community, can give the history, can work with that, but doesn't have the background on rehabilitation on the criminal side of matters, because this person has gone into court and out of court, into an institution and out. Those two must be balanced. Did you look at that kind of structure both from the person entering the program and the staff who have to deliver that program?
Mr. Ferguson: Again, I'll ask Ms. McCalla to give some details, but in paragraph 3.65 of the report on indigenous offenders, we say:
. . . indigenous offenders released from Healing Lodges were more likely to successfully complete their supervision . . . . than those released from other minimum-security institutions.
Essentially 78 per cent of them successfully completed their period of supervision if they came out of a healing lodge as compared to 63 per cent of offenders coming out of other minimum-security institutions. That difference is probably significant enough to say that the healing lodges as a method of trying to aid rehabilitation were having an impact, but I'll ask Ms. McCalla if she wants to add any details.
Ms. McCalla: There are a variety of different approaches in the programs that take place within a healing lodge. There is contact with elders, working with elders, and there is culturally specific programming offered as well. They also have access to ceremonies. CSC research has found that, overall, this type of programming offered by indigenous people is very successful as well and is more successful than mainstream programs that are offered. Historically, that's what they've found so that's why they offer it. They are more effective when offered by indigenous people. That's the main thrust behind the healing lodges.
Is there anything more you would like to know?
Senator Andreychuk: Going into the healing lodge, are they trained beyond being experts on their own culture and being part of their own communities? Have they received the training that would normally come for rehabilitation of an offender?
Ms. McCalla: Yes, I understand. They require that their staff working with indigenous offenders are culturally competent, so they have a variety of screening. We did examine how they ensured that their staff who work with indigenous offenders are culturally competent. They also contract with elders as well to participate in the delivery of the correctional programs. As well, the staff are trained on the correctional programs themselves.
Correctional programs are targeted at the criminogenic risks that led to the crime, so you would want to make sure that those correctional programs are doing that, and indeed CSC has examined the content of those programs to make sure that they do appropriately identify criminogenic risks and the people delivering the program have been appropriately trained on that side of the house as well.
Senator Andreychuk: I believe you were saying that right now they're targeted to minimum risk in the male offenders. Obviously the minimum are those that are low risk to the community, along with other factors. When you get into the high risk, then the risk is of violence, and the protection of the public becomes slightly different in your focus.
Was there any study about that? Is the program geared now to the low-risk offenders in the healing lodges? If you were to expand it, would we have to change the program?
Ms. McCalla: Yes. Currently, the program for male offenders is only available to low-risk, minimum-security offenders. We found that CSC had not examined the feasibility of expanding that to higher-risk offenders.
For women offenders, it operates at minimum and medium levels of security. They have not had what they would call escapes from those security institutions. I would have to get back to you as to whether they've had security incidents there, but certainly the vast majority of women offenders in these institutions are lower risk. They go through a very high level of screening to ensure that they are appropriate for this very intensive type of healing environment.
Senator Andreychuk: The other half of that would be: Is there anything built into the program to contact the victims of the offences that led to the incarceration. In other words, if you're going to talk about reintegrating them into the community, I presume you are going to reintegrate them somewhere near the community they left. That may lead particularly the women back into a community where they were at risk. On the other hand, however, there are the victims there who were the subjects of those offences.Is that taken into the program at all? Is there training the other way?
I'm going from international experience. When you get into reconciliation, you have to think of the person who committed the offence, but you also have to look at the victim who was the object of the offence if you're going to integrate them into a community again.
Ms. McCalla: That is part of their release planning process. Currently, as part of their release planning process, they look to their links and their contacts in the community. But we didn't examine that part of the process.
When they are admitted into custody, victim impact statements are part of the assessment that they do. They try to integrate those into the rehabilitation plan to ensure that those concerns are taken into account and addressed.
Mr. Ferguson: That question touches on one of the primary concerns we had in both of these audits. Offenders are spending more of their time in custody, and they are having a shorter period of time under supervision when they are able to get back into the community. They're having less time for that gradual reintegration to make sure that the integration is done in the best way possible.
One of the main concerns we have in these audits is that, because Correctional Services Canada isn't able to provide them with all of the programming they need when they need it, they are not ready for parole at their earliest possible parole date, they're spending more time within the institution, they're getting out later in their sentence and they therefore have less time under supervision and less time for that gradual transition back into the community.
Senator Andreychuk: That's helpful.
Senator Bernard: My apologies to you for the fact I was late. I was tied up in another meeting.
I want to pick up on a point that Senator Pate raised around ethnocultural offenders, specifically Black offenders. First, I have a question around your 2015 audit of male offenders. Was there a race analysis as a part of that audit, and do you have any specific data on Black offenders?
Ms. McCalla: No, we did not do a race analysis as part of that audit. We looked at male offenders, and we took out the indigenous offenders because we were planning on looking at those as a significant subset of the offender population.
Senator Bernard: From my work in this field, I know that Black offenders do not have timely access to programs. They do not have culturally specific programs and services in CSC institutions. They are less likely to get parole. Because they don't see their fellow prisoners getting parole, some are even reluctant to apply for parole. They are also more likely to be in maximum security.It's also been identified by research that they are one of the fastest-growing groups of offenders — over 50 per cent in the previous 10 years. Given that overrepresentation and the number of problems, has this come up as part of your long-range planning for conducting audits? If not, is that something you would feel would be appropriate to add to your agenda?
Mr. Ferguson: Again, to this point, we first looked at the male offenders. The situation you just described is exactly the situation we found for indigenous offenders, so it wouldn't surprise me at all if it was a similar situation for Black offenders as well.It's not something that we have specifically identified, to this point, as a subgroup to look at. Again, we can take that back under consideration.
Right now, through these two audits, we have identified a number of issues that are essentially the same issues, whether you look at the male offender population as a whole or whether you look at the indigenous offenders. The same types of issues will, of course, be there for other subpopulations. I think we've already brought many of the issues to the attention of CSC at a global level, not necessarily at the specific level of each subpopulation.
One thing we've identified, for example, is that they don't get all of the information they should have when offenders show up at their door. They don't have all of the presentencing reports, judges' comments and those types of things to be able to determine what level of security the offender needs. That's true of the population as a whole, it's true of indigenous offenders and it will be true of other subpopulations.
Right now, we've already identified a number of problems that Correctional Services needs to fix that will help out all populations, including culturally specific programming. We haven't looked at it in terms of the specific subpopulation of Black offenders. It's something that we can go back and look at to see whether we can identify whether there are specific issues with that subpopulation that would cause us to say, "Okay, it's time to do an audit on that subpopulation.''
Ms. McCalla: The Corrections Act also requires Correctional Services Canada to have specific programs and services specifically for indigenous offenders and women offenders and to ensure itself that it is meeting their unique needs.We focused on those two groups of the subpopulation because the legislation itself calls them out for specialized programs. To the extent we see in our current audit that there are the same trends for Black women or we see heightened trends for them, we can address that in our report.
Senator Bernard: When you're doing the audit women, definitely bringing a race analysis to that would be helpful.
There's also the National Ethnocultural Advisory Committee that's been advocating for legislative changes, particularly around the inclusion of social and historical factors in looking at ethnocultural offenders.
Ms. McCalla: Thank you. That's very helpful.
Senator Hartling: Thank you for being here. It's nice to hear you and about your audit.
I notice you were saying in your report, Mr. Ferguson, that you're currently conducting an audit on females' access to programs and services, which is really great, but I'm wondering about the treatment of females. Is that going to be a part of that, or is that a separate audit? I know it's been a number of years since that's been looked at. I'm wondering if that would be included, separate or when that might happen.
Ms. McCalla: Our audit of women offenders will be very similar to our previous audits because we wanted to focus out some key performance measures, which are timely access to the programs that they need so that they can be prepared for parole in a timely manner and the extent to which they are prepared for parole hearings in a timely manner so that they are able to serve the majority of their sentence under supervision in the community.
We're also looking in this audit at access to mental health services as part of our work towards the coroner's inquiry recommendations, in terms of how that timely access to programs and specialized services is reflective of a human rights consideration, as has been pointed out by the Canadian Human Rights Commission, as well as important for their rehabilitation and treatment while in custody.
The Chair: I was curious, Mr. Ferguson, when you talked about how they don't get all the information. Is it because, in the provincial jurisdiction, you are convicted in a provincial court and then you end up in a federal institution? Is there a transparency problem here with the idea of having all that information go automatically and being available? It seems to me that is an issue.
Mr. Ferguson: Certainly that's something that we're trying to get to the bottom of. As I recollect, in our 2015 report on preparing male offenders for release, we identified that the RCMP used to provide a lot of that information directly to Correctional Service Canada, or CSC, but I believe it was in 2009 or so that they stopped doing that. Somewhere along the line they stopped doing that as an automatic part of their process, so CSC has to get that type of information from the provincial or territorial courts, I guess, or from the provinces and the territories.
It's something that we identified both in the report on preparing male offenders for release and then again on the indigenous offenders. I think in the indigenous offenders we did a sample of 45 files, and I believe it was only one file where they had, in fact, collected all of the information that they should have collected when that offender showed up at their door — and that's information they use to determine what level of security the individual should be put at.
All of the reports that we identified and that they have to collect are reports that are prepared in order to sentence the individual in the first place, so they all exist. We haven't gotten to the bottom yet of exactly why they haven't been able to collect the information. It's just something that we've seen in both of the audits we've done so far.
The Chair: Thank you for that. That could be one of our strong recommendations.
Before we go to the second round, since we're talking about indigenous prisoners, we haven't talked about the territorial correctional systems. Perhaps you could tell us what you found in terms of the biggest problems there and the responsibilities. Could you tell us about or discuss your findings in relation to parole and other forms of conditional release in the Yukon, Nunavut and other territories?
Mr. Ferguson: Mr. Chair, we produced an audit report for each of the legislatures in each of the territories on corrections services because, in addition to being the Auditor General of Canada, we have a responsibility as the Auditor General of each of the territories and we prepare performance audit reports for those territorial legislatures and report them directly to the legislatures.
In that particular year, we decided to look at corrections services across all three territories as a little bit of a way, I guess, to give all of the territories a sense of where they stack up. I won't go into all of the details of all of the audits because, quite frankly, I don't remember it all right now, but certainly what we found, as you go from west to east, is just that things were worse.
Nunavut had the worst situation. I have here the opening remarks that I made to their legislature on some of the issues that we found, and essentially they were things like the Department of Justice had known that there was a need to address the poor conditions and overcrowding at the Baffin Correctional Centre. It's also known about the need for appropriate space in Nunavut to house maximum-security inmates. Those inmates were currently housed at the Baffin Correctional Centre at that time, despite the fact that it was a minimum-security facility. So they had a facility that was overcrowded and was not appropriate for the inmates that they were housing. They had people who may end up as maximum-security inmates in there with the rest of the population, and the facility was, quite frankly, nowhere near what you would expect a correctional facility to be in Canada.
On the other hand, when you go to Yukon, it had just recently built a brand new facility that was very good and well designed. So when we did the audit in Nunavut, we focused much more on facilities, and when we did the audit in Yukon, it was a little bit more similar to the audits that I've talked about at the federal level: What were they doing to prepare the inmates?
If you have your researchers go through each of those three audits, I think what you will find is a really wide gap between what was going on in Yukon compared to Nunavut, and the Northwest Territories was right in the middle of that.
Senator Pate: Thank you both, Senator Munson and Senator Andreychuk, for the line of questions. I'd like to pick up on that and then link into another piece I wanted to raise.
When you mention the lack of information on individuals' files, it would be very helpful, particularly when you're looking at the study that you're going to be doing on women, if could you also focus on what you identify in the report you did on indigenous prisoners, which is that so much of what is missing is that which would be most helpful in terms of rehabilitation purposes.
To address Senator Andreychuk's question, in my experience — and if you've seen something different I certainly would like to hear about it — in the correctional treatment plan, there are often things like victim involvement and, particularly for indigenous prisoners at healing lodges, for that kind of involvement to be part of the process of working through their correctional treatment plan in order to get conditional release.
Is it possible for you to comment on that now? If not, if you could include that in the review you'll be doing of the women's prisons and, in particular, the healing lodges, that would be great.
I don't know if you've already looked at this, but if you haven't, when you look at the healing lodges for women, know that it would probably be very useful for you to speak to the original vision circle, which was comprised of elders and indigenous women, and know that that lodge is the only one that I know of that was originally built to accommodate all levels of security, including maximum security. In fact, Sharon McIvor would be a good resource for you to speak to about the fact that they built a segregation unit. They called it a safe lodge, but they built a segregation unit there specifically so they could house maximum-security prisoners, but to date no maximum-security women prisoners have been held there. That would be very helpful.
Also, because you talked about the availability of programs, one of the questions you asked made me want to ask this supplementary to another question before I ask mine, and I do apologize. All of the research seems to show that the programs are best offered in the community to be most effective, and I'm wondering if you have any information on how many of the indigenous programs, in particular, and even more particularly for women, were offered in the community versus in prison. It's one thing to train staff to be more culturally aware, but the most effective programs are those offered in community. If you have that information, that would be great. If you haven't, can you include it in the audit you do for women?
Then add to that the fact that CSC's Custody Rating Scale has been found to fall short on many fronts. You've addressed that and have done an admirable job in a number of reports, including back in 2003, I think, when you first were looking at women, in talking about the lack of applicability, particularly to women, indigenous prisoners and other ethno-cultural groups. You probably know that, most recently, in the Twins decision, there was a requirement that the courts look at section 718(2)(e) or Gladue factors in conditional release issues as well. In fact, just recently, some of the experts who have looked at this have referred to the Custody Rating Scale and classification and actuarial instruments and called them as bad as junk science.
I'm curious as to whether you have actually been able to audit those provisions and actually look at the extent to which those instruments have been either effective or ineffective and how you see these situations being remedied going forward and whether there will be recommendations in upcoming reports to try to remedy some of those. Sorry; it's a lot of information I know.
Ms. McCalla: I'll start with the Custody Rating Scale and its use for indigenous offenders. We found that, while CSC research had validated the scale, it did not include the consideration of Aboriginal social history factors as required, so we recommended in our report that they include a process to have that included in the determination of the security classification level.
For women offenders, we're looking at that now. We are looking to see the extent to which CSC, as it has committed to do, has made the scale gender informed, or not the scale itself but the overall process, the use of the actuarial tool. We're looking to see how CSC has assured itself that the tool is valid and appropriate to be used with women offenders and how overall, as a process, they have mitigated the risk of over-classification. At the end, you want to make sure that you have an appropriate classification because security classification is so important for the overall correctional process for the offender. It largely determines the timing and whether they will get parole before their sentence ends.
Mr. Ferguson: The only thing that I would want to add is that, when we did the audits that we're bringing to your attention here, there were a number of problems all along the way that start from the point in time that the offender gets in the door and Correctional Service doesn't have all of the information they need to determine what level of security the individual should be at. They don't always have the Aboriginal social history in the case of the indigenous offenders, if there is one, so they can't take that into account when the offender shows up.They are using the tool that is supposed to be a tool for assigning security level to assign programming, and they know it's not appropriate, particularly for indigenous offenders.
The end result of all of that is that a higher percentage of indigenous offenders end up in maximum or medium security and also are assigned programming than non-indigenous offenders. They don't receive all of the appropriate programs on time that they should, whether they are culturally specific or not. The programs don't start on time. So, therefore, they are not prepared for a parole hearing as early as they are available for it.
Once they do get programming, they're not assessed after each program. So, if somebody is at maximum or minimum security and they complete a program, they're not then assessed to determine, "Well, now can they move down in the security level?'' Because you're not going to get on parole out of a maximum-security facility, so that whole process of making sure that the offenders complete the programming, are assessed and then, if they can, move down in the security level is not happening as well.
Particularly offenders in maximum security don't meet with their parole officers, perhaps, as often as they should. That was something that we identified in the first audit.
I don't know how you look at this whole issue from a human rights point of view, but the offenders are not really given the full chance that they should be given in order to be considered for parole as early as they can be. As I said earlier, what that means is that they end up with less time for that gradual transition, under supervision, back into the community. I think that's the thing that particularly concerns me. All along the way there are these problems, and the end result of these problems is a shorter period of time.
In the case of the indigenous offenders, we found that, as I said in my opening remarks, a large percentage of them are being released at their statutory release date and coming out of either maximum or medium security back into the community. When they come out at their statutory release date, it means that the period of time they have under supervision is shorter.
In a lot of ways, it looks like that whole system is a little bit backwards. You would think that people that have spent most of the time in maximum or medium security and were not able to get out on parole, once they do get out, are probably the ones that need a complete program to help them make that transition back, whereas, in fact, they probably end up, in a lot of cases, with a shorter amount of time.
Senator Omidvar: I'm looking at the reports of the Auditor General for 2016 on indigenous offenders, and a number of your findings the agency has responded to and has agreed to do certain things. For example, there's section 3.71 where the agency says Correctional Service Canada will develop structured guidelines, et cetera, ensure maximum use of elder service, pathway initiatives, all of the good things that you know work.
There are no timelines. My first question is: Do you accept these responses without timelines? You are the Auditor General. When you say jump, people jump, I imagine. Can you get the agency to give you timelines against these responses?
Mr. Ferguson: What happens when we do an audit is that we discuss drafts of the audit with the organization that we are auditing. We go through all of that process so that they know the types of findings that we are going to have. We make recommendations to them. They give us a response, at the end of the audit, that we publish in here.
They are also, though, required to present an action plan to the Public Accounts Committee of the House of Commons. In fact, there was a hearing in front of the Public Accounts Committee on this particular chapter, so they would have presented a more detailed action plan, with those timelines, through that process.
One of the things that I can say for the department and the response that we got back from the department is that I'm not sure "happy'' is the right word, but they appreciated very much what we had brought to their attention on that file and expressed an intention that I felt was particularly sincere of using the results of that audit to try to improve the situation for indigenous offenders. Of course, we'll only see with time whether that's what actually happens, but there would be an action plan that they did prepare with timelines.
Senator Omidvar: We will try to get that action plan, if we can, either from the department or someone else.
Getting back to your report, this committee has been through a very strenuous study on gender-based analysis, and I looked at your report and did simple Control-F. The word "women'' appeared three times in your report, and "female'' appeared six times in this report.
I want to ask you if this audit was intended to provide a fulsome picture of Correctional Service Canada's performance in relation to both men and women, and, if so, why none of the recommendations are particular to women? I find that interesting.
Mr. Ferguson: That was because our strategy was first to look at the overall population, then to look at the indigenous population and then to look at the women offenders population. We have that audit underway now.
The other thing that we are doing is, as part of the coroner's report, there was a recommendation that we do some work to follow up on the recommendations that the coroner had, and we are using that as a bit of a lens in our planning of audits. As we do different audits in correctional services, we use the recommendations from the coroner, for example, to try and say, "Okay, are there certain lines of inquiry we should go down because of those recommendations?''
So the specific audit that we have on women offenders will be coming out in the fall, and our future planning on audits in the correctional service space will take into consideration all of those recommendations that came out in the coroner's report on the Ashley Smith situation.
Senator Omidvar: Will there be a gender lens on future reports?
Mr. Ferguson: The next audit will be specifically on women offenders.
Senator Omidvar: I understand, but what about beyond that? Is this a practice that you are considering embedding into your audits in general?
Mr. Ferguson: We do bring it up from time to time. For example, we had an audit just recently as well, one that I have a hearing on this afternoon, on recruitment in the Canadian Armed Forces. In there, we identified that the Canadian Armed Forces had set a goal to recruit to the point that 25 per cent of their membership would be female, and right now, they're at 14 per cent.
In our audits, if we feel there are gender-specific issues, we will consider those in the planning of the audit.
The Chair: Thank you, Mr. Ferguson and Ms. McCalla, for being here. There has been enlightening for us all. There are some ideas here for our own recommendations. If you can tell us when you're going to have your fall report ready, we'll put ours out a week before, grab your information and move that to the public and you can be part of the process. But we really sincerely thank you for being here. It's been very helpful.
Senators, I received a very informative letter from one of our new witnesses, Mr. Piché, who wanted to appear before us, and they have done incredible work at the University of Ottawa. On our second panel today we have Justin Piché, Associate Professor, Department of Criminology, University of Ottawa; Teneisha Green, Master's Student, Department of Criminology, University of Ottawa; Jasmine Hébert, Master's Student, Department of Criminology, University of Ottawa; and Ana Kovacic, Master's Student, Department of Criminology, University of Ottawa.
The senators will have lots of questions. Personally, I'm off to a citizen advocacy meeting in about 20 minutes or so, but Senator Ataullahjan, our deputy chair, will be here to coordinate everything today.
Professor Piché, are you the speaker?
Justin Piché, Associate Professor, Department of Criminology, University of Ottawa, as an individual: The four of us are speaking.
The Chair: Thank you very much. I have yourself, and then I have a list here of four.
Mr. Piché: Okay. Thank you for the invitation to speak before this committee. My name is Justin Piché, Associate Professor of Criminology at University of Ottawa, and Teneisha Green, Jasmine Hébert and Ana Kovacic are all Master's students in the department, as was previously mentioned. We're very pleased to be here today.
We have been tracking prison expansion in Canada, collecting data obtained through online content search, information requests by phone with prison agency officials and access to information requests submitted to governments across the country since January 2016.
As we've noted in our report submitted to your committee last month, entitled Carceral Expansion in Canada's Provinces and Territories: An Opportunity for Prison Divestment and Justice Reinvestment, the construction of new jail and prison spaces remains a fixture of the Canadian punishment scene. These penal infrastructure projects are being built in a context where Prime Minister Justin Trudeau mandated Minister of Justice and Attorney General Jody Wilson-Raybould to review penal reforms initiated by the Conservatives during their decade in power, with a particular focus on increasing "the use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst indigenous Canadians.''
As we will discuss today, based on data collected from February 2016 to January 2017, our report identifies 14 jail and prison expansion projects at various stages of completion, adding more than 2,500 new prison spaces with a price tag surpassing $800 million, because there are still other projects that need to be announced, notably from Prince Edward Island, Newfoundland and Labrador, and the like. At least one of these projects, the replacement facility in Nunavut that is going to replace the notoriously decrepit Baffin Correctional Centre that the Auditor General spoke about, is receiving federal infrastructure funding, as other provinces and territories plan to expand their capacity to confine Canadians.
It is in this context that we launched the No on Prison Expansion, or NOPE, initiative to call on provincial and territorial governments across Canada to divest from prison and reinvest in justice through community infrastructure, such as social and affordable housing, education, health and mental health care, cooperative businesses, public transit and the like, that promote our collective well-being and safety. Our brief presentation today provides an overview of prison expansion in Canada, explains why building carceral spaces is bad public policy and discusses available policy alternatives that we hope your committee will advocate for in your work on human rights.
Ana Kovacic, Master's Student, Department of Criminology, University of Ottawa, as an Individual: During the course of our study, we have learned that all but three provinces and territories are planning or building new penal infrastructure at this time. New Brunswick, Alberta and Yukon are currently restraining from building new jails and prison spaces, as their respective governments have recently collectively invested over $670 million to major carceral projects, with the massive Edmonton Remand Centre representing the bulk of this cost at nearly $570 million.
Governments disclosed to us 14 different jail and prison expansion projects, some of which have been recently completed and others that are currently in the works, which are expanding Canada's capacity to continue to confine human beings. For instance, the Government of Quebec is further investing a total of over $503 million to construct several prison spaces in its province with renovations at Leclerc Institution and new facilities opening in Amos, Sept- Îsles and Sorel-Tracy. Plans are also underway to replace Maison Tanguay, a provincial facility for women that recently closed.
Also not to be overlooked is the federal government's decision to invest $56.6 million to build a 112-bed Qikiqtani Correctional Healing Centre in Nunavut in replacement of an existing territorial prison. This decision is particularly troublesome when we recognize that Nunavut had the highest adult rate of incarceration in the country in 2014-15; 534 per 100,000 were imprisoned, with indigenous peoples representing the entirety of the territory's prison admissions that fiscal year.
Several other provinces and territories are planning to build new correctional spaces in the years ahead and may also seek federal support to fund their penal infrastructure initiatives. That the government would fund such a project when Prime Minister Trudeau mandated a focus on alternatives to incarceration is an example of contradictory public policy as well as an affront to our obligations to take seriously the recommendations of the Truth and Reconciliation Commission on Residential Schools, which mass incarceration has replaced.
Given that expanding the state's capacity to confine human beings has the potential to shape patterns of marginalization, criminalization and punishment for generations to come, we cannot turn a blind eye to government- funded prison expansion projects happening across Canada today.
Jasmine Hébert, Master's Student, Department of Criminology, University of Ottawa, as an Individual: Carceral facilities have, since their very emergence, been in a constant state of crisis as piecemeal reforms have been unable to resolve the failures and the unresolvable contradictions of imprisonment. While jurisdictions engaged in penal infrastructure development try to rationalize carceral expansion, they do so in the face of a lengthy track record of prisons failing to meet their own stated objectives, notably with respect to rehabilitation, deterrence and fostering justice that provides a measure of healing for those impacted by criminalized acts.
Not only do prisons inflict more pain, they do nothing to repair the social harms that trigger the penal process, proving to be ineffective for both the criminalized and for the victims. Prisons reinforce structures of oppression, reproducing inequality by pushing indigenous peoples, the poor, the racialized, women made vulnerable by patriarchal structures, members of the LGBTQ community, individuals with mental health and substance use issues and others further to the margins of Canadian society. For example, poor mental health and drug use are much more common behind bars than in the general population.
The positions in which caged individuals are placed violate their dignity and are an affront to justice itself.
Dominant power structures that maintain economic, racial, gender, sexual and other forms of inequality proliferate in sites of confinement. Expanding our reliance on an expensive, unjust and ineffective response to social problems that are criminalized is irrational and oppressive. The infliction of pain should not be an essential element of justice.
Teneisha Green, Master's Student, Department of Criminology, University of Ottawa, as an individual: Some of the alternatives to incarceration include restoration and transformative justice. Restorative justice is an approach to justice that focuses on the needs of the victims and perpetrators of harm as well as interested members of the community instead of satisfying abstract legal principles or punishing the criminalized. Victims take an active role in the process while perpetrators are encouraged to take responsibility for their actions to repair the harm they've done by apologizing, returning stolen money, performing community service, among other actions. It is based on a theory of justice that considers criminalized acts and wrongdoing to be an offence against an individual or community rather than the state.
One of the key ideas that supports restorative justice is the concept of healing or the collaborative unburdening of pain for the victim, perpetrator and community. All parties engage in creating agreements in order to avoid recidivism and to restore safety for how the wrongdoing can be righted. This allows the victim to have direct say in the judgment process. This gives perpetrators the opportunity to understand the harm they have caused while demonstrating to the community that the criminalized person might also have also suffered prior harm.
In addition, transformative justice is an alternative philosophy that builds upon the principles and practices of restorative justice. It moves beyond the classic victim and perpetrator relationship by analyzing systems of domination that foster harm such as racism, classism, homophobia, sexism, among others. The retributive system takes control, responsibility, healing and accountability away from the victims and perpetrators, thereby alienating them from the process.
Transformative justice addresses not only the specific conflict between the victim and perpetrator but also a number of social issues that give rise to the conflict. Transformative justice is rooted in community involvement and accountability, and the end of punitive and retributive practices. Since transformative justice suggests that other types of oppression are at the root of the harm caused, advocates suggest that in order for a transformation to occur, transformation of relationships must occur between the person who has caused the harm, the person or people who have survived it, the bystanders and the community. Meaningful changes must also address the roots of violence and harm.
In closing, in keeping with Prime Minister Trudeau's mandate letter to the Minister of Justice and Attorney General of Canada Minister Wilson-Raybould, the federal government needs to lead the way in building capacity in Canadian communities for restorative justice and transformative justice. Without divesting from prisons and reinvesting in promising forms of justice, Canadians can expect more of the same failed penal policies and practices to continue for generations to come. It is time that Canadians said "no'' on prison expansion. We thank you for your time.
The Chair: And thank you for your time. This is very important. Is this the first public document of saying no? You're having a news conference, I understand. That's good. The media should pay attention to what you have worked on so diligently for the last little while.
We will go to questions.
Senator Fraser: Let me start by saying thank you very much for being here, and I largely share your views on, shall we say, the inadequacy of a system that relies on locking people up.
I'm just trying to understand your table here. This is only about provincial and territorial institutions, right?
Mr. Piché: Correct.
Senator Fraser: So when we look at, for example, my province, Quebec, and when we look at the Leclerc Institution, which is being renovated to provide 775 beds for men, I don't think that's actually that much of a net increase in the total number of people locked up in Quebec, because before, when it was a federal institution, it had what, 500 people?
Also, I'm not sure, looking at these numbers, whether the 775, which you identify as being for men, includes what I gather is still the case that some women are being incarcerated, the ones who were in Maison Tanguay. Are they currently included in your totals?
I'm just trying to get a firmer fix on exactly what these numbers show. You have my sympathy. It's always very difficult to get everything into one table, but if you could clarify it for me, that would be nice.
Mr. Piché: Sure, okay. The process for us, in terms of collecting data, was to ask the provinces and territories how many new penal infrastructure projects they were undertaking and, once those new penal infrastructure projects are completed and the prison spaces are online, how many additional prison spaces do they consider being added to their capacity to be able to confine who they confine.
When we sent a freedom of information request out to the Government of Quebec and their ministère de la Sécurité publique, rather than responding with documents, they sent back a letter itemizing their penal infrastructure initiatives and what net increases those amounted to, so they identified the projects and the information that we entered into the table.
I'm cognizant of the particular project that you're speaking to, the Leclerc Institution, previously a federal penitentiary acquired by the Government of Quebec, and the Government of Quebec didn't acknowledge that that, in and of itself, was an increase of spaces at that time. What they're doing is basically saying that, from the moment we acquired that institution to the moment we're completing the renovations there, that will signify 775 more spaces for the province.
In terms of what that means with regard to shifts if we added the federal population in there, that would be a more difficult thing to calculate, but I can say that when Leclerc Institution was closed, as was Kingston Penitentiary, about 1,000 prisoner beds came off-line while CSC, at the same, time built 2,700 new spaces across the country. If we're looking federally in terms of a net increase a few years ago when they finalized those projects, we're talking about 1,700 new prisoner beds, as well as the spaces created through increases in capacity due to double-bunking, which I understand has declined quite significantly in recent years, but nonetheless the space is there should there ever be a desire to fill it.
Senator Fraser: This betrays my ignorance, but we're here to learn. Overcrowding in various penal institutions in the country is a long-standing scandal. When you have prisons putting people into gyms instead of using the gymnasiums for what they should be used for, you're not running a very efficient system.
What do you know about the official classification of the number of beds? For example, in an institution that has an overflow from its originally planned capacity and dumps people into the gym, do the people who are in the gym count as beds or are they just an overflow that doesn't count in the official total of how many beds there are in that institution? In other words, then, if we build a new institution with more official beds, are we actually increasing the number of people locked up or are we simply increasing the number of officially certified beds?
Mr. Piché: To respond to that question, the classification for beds that are noted in our report is for regular beds, and I do not believe those include segregation beds. These are beds that serve the specific purpose of incarcerating folks in the general population. It doesn't count segregation beds or health care beds, with the exception of the institution we noted for Saskatchewan, which is building new mental health spaces in a secure hospital wing.
Senator Fraser: You can see I'm flailing around in the dark here. Shed some light on it for me.
Mr. Piché: No, you're not. There are a few major drivers of prison construction in this country. One of them is that, at least provincially and territorially, as your committee will be aware, since the 1980s the proportion of prisoners in prison on remand has gone up exponentially. I just looked at a report today from Statistics Canada that says we're still around 60 per cent of provincial/territorial prisoners who have not seen through their trials and their sentencing yet. So that is a driver that has pushed provinces and territories to establish additional carceral space to imprison the legally innocent.
The other thing that has pushed it is crowding in facilities. Here, locally, the Ottawa-Carleton Detention Centre is fairly well-known for triple- and sometimes even quadruple-bunking prisoners, and sometimes putting them in the gyms and so on. To get to your question, that doesn't count as capacity, but obviously those prisoners go towards the official daily count.
Senator Fraser: Prisoners as distinct from beds?
Mr. Piché: Correct. I guess what I would like to point out, however, is there may be this idea that we should build these new prison spaces to address the crowding so that people can be incarcerated more humanely. But one of the things that we've noted in our research, and I have noted in my research having studied this for the last 10 years, is that when a new prison is built, the very conditions that are used to justify the construction of that new prison, whether it's alleviating crowding or providing programming to prisoners because there is currently a lack of programming, they build the new prison, replace the old ones and then the new ones become crowded and don't offer the programming that they promised.
It's really a fool's errand. It's basically a crisis that keeps on going and the only folks who seem to win are the ones who get to keep jobs in the correctional system. Prisoners don't seem to see measurable gains in their day-to-day lives despite the promises of these more humane institutions. That's the track record and has been the track record in this country since prior to Confederation, when Kingston Penitentiary was built in 1835. We can keep doing this, and you can have folks like us before your committee a hundred years from now or we can try to do something different, and that's what we're trying to push.
Senator Salma Ataullahjan (Deputy Chair) in the chair.
The Deputy Chair: As you see, the chair has changed. Senator Munson had to be somewhere so I'm taking over those duties for him.
Senator Andreychuk: I will follow up with Professor Piché on what Senator Fraser was getting at. Reading through your brief, I get the point that you've been studying that building institutions and structures doesn't lead to a fairer or a better system and doesn't lead to restorative justice, et cetera, and then you use the table that shows the provinces are expanding.I don't see the links. In other words, academically, you have put out a proposition, but I want to see how you prove it and I'm having trouble.
I know, for example, the Saskatchewan situation. Mental health was not a priority in the correctional system. It was a societal priority and a provincial priority. I think we're now building a very good facility for Saskatchewan residents, with a special to ensure that there is a secure mental health unit, because if you know how disparate Saskatchewan is, you're going to have to bring them into that facility. They have to be secure, but you want them to have access to all of the kinds of psychiatric services that the rest of the population gets because their problems are mental, psychological, what have you. You can't have all of that expertise just for the correctional system. You have it for others, but you build a secure unit.
It seems to me the statistics don't help me here to get at the problem that you're trying to identify, which is that we're overusing incarceration. I don't get it from the material you have here. You'll have to build a better case. Yes, I think that we shouldn't be building facilities and ending up with an ability to incarcerate equal to or more than, but I don't know whether building the new institutions led to the increased incarceration or the expansion of the criminal offences and other policies led to the expansion. I don't equate them with the structures and expansions. I don't see that compelling case.
From a personal point of view, if we have an outdated, old Kingston facility, and we have incarcerated people, I want it to be more humane and more functional. I want the toilet to flush, to be quite honest.
Help me to get to your thesis, but, more importantly, how do you substantiate the comments you make? Because I don't get it from the paper I have. Perhaps you have more papers I should read and more data that I should receive. I'm not your thesis instructor putting you under the gun here, but I think the case has to be made, and I'm not sure it's been made.
Mr. Piché: I'll start with the discussion around the mental health unit that's being built in Saskatchewan. I think it's important to acknowledge that these aren't community spaces, and several millions of dollars are being allocated toward building those units, which would arguably be needed in terms of an investment for people to be able to access before they come into conflict with the law, before they harm someone else, before they end up in a court facing charges, before they end up in a prison and then perhaps need access to such a facility.I guess one of the issues that we're pointing to is that, when we invest money in prisons, that money comes from somewhere and it means that we're not spending money elsewhere, such as developing mental health capacity within our communities themselves.
There are many people who end up in prison with drug-related offences, for instance, who may — and I say "may'' — have access to treatment for the first time within that context. To me, that's an indictment of our society in which someone has to wait a long time to get access to treatment. If I say, "Hey, I have an alcohol or drug addiction problem right now; I need to go get help,'' unless you have money, that help is not coming to you quickly.
I think what we're trying to point out is that, by spending money on this, we're not spending money or as much as we could elsewhere to prevent harm.
In terms of building the case that this is bad public policy and a bad investment, I'm prepared to speak for as long as I have to all of the different failures that have piled up with respect to imprisonment since their very foundation.
We can talk about rehabilitation, for instance. Several critiques about rehab in the context of prison have been levelled. First of all, that the prison tends to be a chaotic environment. It's counter productive. It's not a treatment situation. That has been long established. Of course, treatment works better in the community, and your government's own research will say that.
It's been established for over a half century —Don Clemmer talked about "prisonization'' — that prisoners go in there and adopt the customs, mores and values of the institution, not of the society that they will eventually be returning to. We could talk about Gresham Sykes' work on —
Senator Andreychuk: I think you are making my point for me, that we need to do something other than incarceration if we want to help people and help society, et cetera.That wasn't my difficulty with your thesis. My difficulty was that we get a chart saying that construction, somehow or other, is the key.
You're building a fundamental case that incarceration is not helpful, and that may be a theory that you and I would agree on. Then I might disagree with you and say that we need it for the security of society. That would be where I would be going. But you've said that building these isn't helpful, and I don't see that linkage.
With respect, I disagree on looking at statistics of where we put our money into building; it's not a compelling case to say that it is the construction that has led to the difficulties in the system. I think it might be seen as one improvement on a system that you don't agree with. That's really where I'm going on that. I leave that to you to rethink the strategy here of how you present what I think is a very compelling case.
Mr. Piché: Just to quickly answer, if there's an institution that we find is problematic in failing at meeting its own stated objectives, and then someone comes and says, "Here is evidence that we are expanding the capacity of these problematic institutions to do whatever it is that they do,'' I don't really know how to respond to your remark or intervention, I guess, because, fundamentally, what we're saying is, "Prisons don't work; stop building prisons.''
It's not the construction of the prison that causes the failures. The failures are already there, and they're being reproduced once these facilities are built. I'll have to revisit the disconnect after the hearing, I guess.
Senator Omidvar: On the same line of questioning — and anyone can choose to respond to this — I know of the literature that tells us that prisons only lead to hardened attitudes and further criminalization, but what I'm having a little trouble with is the issue of accountability. Canadians have to be held accountable for their acts, for the safety of security and to uphold our system of law and order. However flawed it may be, it is the system we have, and we are here to improve it.
You talk, in your paper, about alternatives to confinement. I'd like to ask you to describe some of these options that would lead to both accountability, on the one hand, and the reduction of recriminalization of the individuals.
Mr. Piché: We have a system of retributive justice in which, when someone violates the law, it's considered to be a violation of the state. Through that violation, it means that someone will be adjudicated through the courts to determine whether or not they're innocent or guilty, and, if they're found guilty, a sanction will be levelled against them as punishment, as a form of accountability.
Nils Christie, among others, a sociologist from Norway, has argued that that essentially is a form of conflict theft that essentially blocks perpetrators from actually being accountable for their actions because they themselves are not obligated to account for what they have done, they themselves saying what they have done and then trying to find ways to make things right with those that they have harmed.
Restorative justice, for instance, where parties agree to meet each other, where victims agree, where perpetrators agree, where interested community members also want to participate, brings those parties together to decide, first of all, what has happened; how they themselves define the harm, not how the state defines the harm; what impacts those harms had; and then, after that, deciding how to address their needs stemming from those conflicts. Restorative justice does that through various processes, whether it's victim-offender mediation, circles or community conferences.
Transformative justice goes one step further and asks: What social structures led to those harms? For instance, if we're talking about violence against women, if folks agree to meet in a transformative-justice process, they could talk about, for instance, looking at what role our patriarchal structures — sexism and so on — play in violence against women and then try to find remedies to those deep social structures that produce those harms and those conflicts that give rise to them.
That's a bit of what those forms of justice do. Of course, they're not a panacea; there are limitations. Clearly, voluntariness is key to that. Folks also need to be ready to engage in those processes. If someone who has committed a harm or is being accused of committing a harm says, "Well, I don't want to participate in this,'' or, "If I do, I may cause further harm to the persons I've already harmed,'' then you can't do that.
Coming back to what the point of our report is, when we spend money on building prisons, we don't create opportunities for those processes to flourish, whether it be at the level of the community or at the stage where a harm first gets reported to the police, or pretrial, post-trial and in prisons. We're essentially skirting away opportunities to provide healing. The literature demonstrates that restorative and transformative justice provide a better chance — it's not perfect — for survivors, perpetrators and their communities to heal following a criminalized harm.
Senator Omidvar: My understanding, from what you're saying, is that the thesis of your paper on the spending on prisons is, fundamentally, let's spend the money on restorative and transformative justice processes because we get better outcomes. Is that what I'm hearing you say?
Mr. Piché: That's one of the arguments we are making, yes.
Senator Martin: I want to intervene to get some clarification on what you are describing.
Ideally, we want healing and restorative and transformative justice, but my question comes back to what my colleagues are trying to ascertain or draw from you, which is: In the meantime — because all of this is a process as well — what do you propose would happen to these perpetrators until they are ready, when they have, perhaps, murdered someone or offended in ways that would bring harm to society or the community?
Just as it is a tool in education when there are situations, we take a restorative approach, and we try and engage the students and the families. We have the current system, and it takes time to reach the point at which restorative measures can take place. In the meantime, we have prisons and places where people can be placed. We're looking at how we can improve those facilities. I think of your ideas as being one of the ways in which to bring more healing to the overall process. I'm just trying to be realistic on we get to what you're talking about, because, in the meantime, we have to keep the balance of protecting victims, communities and societies from these perpetrators until they're ready as well.
Mr. Piché: In some respects, I would agree with this idea that if someone poses an immediate risk to others and there's no remorse for their actions, then some form of restraint would be needed. Whether that's a prison or something else, we can leave that up for debate.
The strategy that we're trying to privilege in our own work is a strategy of attrition and working towards a world and country where we incarcerate less and, perhaps, to a point where incarceration wouldn't be a fixture of our justice system anymore. The attrition strategy requires, first, that we stop its expansion. That's what we're talking about today. These are abysmal, failing institutions, and we are expanding those institutions. That's what we're talking about.
If we are to move in the other direction, at some point we have to say, "No,'' and stop and start going elsewhere. It could take several generations to do, but, over time, it would mean stopping prison expansion now and investing in restorative and transformative justice capacity in our communities now, not 100 years from now. That's basically what we're advocating for.
There are many people in prison right now that do not need to be there. We could start in various places as to who we think could be immediately released from prison that wouldn't jeopardize anyone's safety. Perhaps we could go around the table and ask each of you who you would be prepared to release from prison right now. Until we actually say no to prison expansion, that's not happening.
I certainly acknowledge that there are limitations in terms of alternatives to incarceration, but to get there, we have to stop at some point, or we can just keep spinning our wheels for another 150 years in this country.
Ms. Hébert: I wanted to add a note on the issue of accountability that has been going back and forth. There is other research and literature in criminology, specifically in the area of victimology, that looks into what victims of social harms actually want. It's not, typically, imprisonment. They want an apology. They want their property back or fixed. They want to know why what happened to them happened and to know it's not going to happen again. Allowing for restorative justice to take place lets the perpetrator actually have more accountability than just confinement would. This is specifically true since most people that are currently being caged are not violent offenders.
The argument of: What are we going to do with them? Should we put them in prison while they're waiting to be ready to engage in restorative justice? They're not going to be because prisons will just make them more disenfranchised. It can only get worse. The issue should really be to start off on the right foot. The right foot is just not imprisonment.
Senator Fraser: I repeat: I agree that our present approach of locking people up for almost anything that you can think of is terrible, counterproductive, even cruel. But there is a category of people — and I'm thinking now of mentally ill people — who can be helped, it seems to me, by the programs you're talking about here of prison expansion.
I'm not familiar with the statistics about provincial institutions, but we have known for years that in the federal system, huge numbers of the people imprisoned are mentally ill and not getting the treatment they need, and they're being treated as prisoners rather than as patients.
When I look at your inclusion of the Saskatchewan project, for example, I have trouble seeing that as an enabler for further perpetuation of a bad system. It seems to me that that should be something we should be trying to encourage, namely, setting up safe places where, according to your report, the approach is to be therapeutic rather than simply custodial. Why is that a bad thing?
Mr. Piché: If we were to look at the millions of dollars that are being spent on that facility — I suppose one thing we could do following this hearing is to look at how much the government of Saskatchewan spends on mental health in the community and then ask, "Is that actually a fair system where folks with mental health issues end up being criminalized for it because community supports are next to non-existent?''
To basically note that our prisons are increasingly becoming asylums, and then to say, "Well, we need mental health units,'' to my mind, the appropriate way to address it is to say, "Let's stop the flow of folks who end up having crises in our lives, who end up in conflict with the law and then end up in jail,'' rather than building facilities like these. When the therapeutic goals encounter security goals, the good order of the institution, so to speak, the history in this country of which objectives and institutions went out, the good order of the institution, institutional security, will trump everything. It will trump rehabilitation and other kinds of work that's happening inside.
To expect those secure units to be able to actually deliver on their promise, there's no documented history of that actually working, so why are we doing it?
Senator Fraser: I have seen some indication that work done by the Royal Ottawa in connection with the Ontario system has been quite effective. You are familiar with that and you've discounted it?
Mr. Piché: I'd have to look at the Royal Ottawa report. If the report is saying that putting someone in the mental health care unit within the context of corrections is better than a normal prison, okay, I could maybe concede that. The point I'm trying to make is those people shouldn't be in prison in the first place.
When you create capacity for a judge, for instance, to be comfortable with sending someone to a correctional system because they think they're going to get treatment, that's what I'm talking about: diverting the flow of people into the jails rather into communities. To me, you build these spaces and it legitimizes that process, when we should actually be tackling those things before people end up in the system in the first place.
Senator Andreychuk: Senator Fraser has covered most of it rather well.
You are arguing for preventive services before people get into jail. Let me tell you, I've been there, begging, pleading and ordering rehabilitation support systems —preventive — let's start working with the child when they are eight months old and 18 months old, and let's correct the problems before they become criminal problems. It's a societal thing.
I'm with you on that, but if you say that you've come to the end of your rope and nothing is working, and therefore you're saying the only way to stop or grab society's attention is to stop building facilities, I find that strategy difficult, because you make communities insecure. What are you going to do with these people if you don't lock them up?
I understand that's a catch-22, because the judge sitting there is saying, "This child, this person, should have had all this treatment, but they are before me and they have just committed a major violent offence. What do I do with them?''
I don't give up on preventive rehabilitative justice. I think we haven't applied it well. I don't think we've had the political will to do it. What I'm struggling with is your answer and your frustration of "let's stop the prisons because we might get somebody's attention.'' There are some excellent programs going on. They are segmented, et cetera.
I'm not disagreeing with you that we should not be incarcerating many of the people who are there, but I've been looking at the Criminal Code and the lack of resources at the front end rather than cutting the resource at the other end. From a policy point of view, I don't know how that would be presented by a government — saying, "Today we're going to stop building. We're not going to use any secure, because we think we should do more on the preventive.''
I understand selling preventive is very difficult because you can't take credit for somebody's rehabilitation. You can't say this program worked for them. "We think it did'' is the best we can say, and we want to offer all of those alternatives.
I guess we're not arguing about the ultimate goal but how to get there.
Mr. Piché: I'd like to just make a quick intervention. My colleague Irvin Waller at the University of Ottawa has done research on prevention that shows that for every dollar spent on prevention, you save $7 that would be spent on policing, courts, prisons and parole. We agree on that. I guess my question, then, is: If part of those $7 being spent is money on prison construction — on expanding what we already do in terms of imprisonment in this country — why not spend those dollars on prevention instead, which would save you seven times the money that's invested? Why not spend $800 million on prevention today rather than building prison spaces that will have reverberations on communities and the well-being of people, that will prevent people from being harmed.
We have choices —
Senator Andreychuk: I can just cut to the quick. I think you should be looking at the strategy for the interim process, because if you say, "Stop prisons today'' so that the dollars will go there, you're going to run into a lot of roadblocks and uncertainty. But if you say, "Here is the bridge to get there: Reduce this kind of incarceration and these kinds of building and construction and put it into preventive dollars,'' I think you're going to get more of a political will.
The Deputy Chair: We have about 10 minutes and four senators who have questions. If you can keep the questions short and the answers short, I would appreciate that.
Senator Andreychuk: I apologize.
Senator Hartling: Thank you very much. You've created a very interesting and lively discussion. Everyone is involved. That's great.
I'm a former community social worker, and I'm very familiar with transformative and restorative justice,and the benefits of that. It's Mental Health Week this week, so it's an important week to discuss this.
One of the things you're saying that's resonating with me is that it's to have a way to sell the idea. We all agree that the idea is not to have more prisons, but there is definitely a lack of services in every community across this country, especially in the mental health area.
So if there were a way — I don't know; I'm just suggesting — that you could analyze the monies that would be spent and what kind of services that could provide as a way for the Canadian public to see. It's to not just say, "Don't build anymore,'' but, "Here's what we could do with this money,'' as a way to bridge that gap because I think it's going to take time for people to understand this, especially if they're not close to the subject. So I don't know. There may be other programs that you're thinking about to divert those funds, but approach it in that way. Maybe it would be a way to have a buy-in on the whole idea. I don't know what you think about that or if you have other suggestions on programs.
Mr. Piché: I'm just doing some calculations for two seconds here. Let's say that, in Nunavut, they're going to build. The federal government has greenlighted this. They're going to build 112 prisoner beds. It costs every day in Nunavut to incarcerate someone, according to Statistics Canada, $550 a day. Let's times that by 365. So the sticker price for that facility is going to be $76 million. The cost to run that facility every year is going to be $23 million. Okay?
Hypothetically speaking, how much does it cost you guys to go to school every year, university? We'll probably be looking at $8,000 in tuition and then, for rent and living expenses, we'll just say a $1,000 a month. So we're looking at now at least $20,000 a year, $25,000 a year.
Senator Hartling: That's the kind of thing, if you can have that documented somehow, that people like to see. It's like alternative budgets and things. When you see that, it makes more sense. That might be the kind of thing that would help your case.
Mr. Piché: We can send 912 kids from Nunavut to college and university at $25,000 a year. We can produce that report for you, and thank you for the suggestion. I appreciate what you guys are saying.
Senator Pate: Thank you to my colleagues for the questions, and thank you to all of you for coming.
Perhaps one of the bridges that we might suggest that you might want to cross over and provide some information on, to pick up on some of the other senators' questions, we're looking at some provisions that exist right now within the Corrections and Conditional Release Act that are underutilized that could assist in de-incarcerating. In addition to the arguments, I would support looking at the costing. I certainly had been looking at the costing as well, and my calculation was that it's going to cost more than $1 million per bed to build that institution up North for women and about $600,000 per bed to build it for the men in Nunavut, and then the costs you've talked about. So, yes, those are really helpful, but it's also helpful to look at what exists right now, sections 29, 81 and 84 in particular, and the way that corrections policy has limited the application of the law in the way that legislators intended in 1992 when they passed that legislation. They intended, actually, to reduce numbers of people in prison. That was one of the stated objectives if you go back to the Dobney Report, if you go back to the discussions in Hansard around the CCRA. It was to reduce the number of racialized, in particular indigenous, prisoners and to reduce the number of women, and that's why we have sections 77 and 80 in the act as well.
It strikes me that building that argument would be really useful. I don't want to speak for the committee, but I'd certainly be interested, and probably other colleagues as well, in taking some of that information and adding to the costing that you've done and adding to the analysis you've done in terms of how some of these resources could be used right now to contract, say, with indigenous communities, with Black communities, with women's groups, to have those resources in the community so that, right now, we could be looking at numbers of prisoners exiting the system and into those kinds of mechanisms, and then building on the recommendations that all of the heads of corrections have been making for many years, usually privately, but meeting with them. You guys are great at doing the access to information request, perhaps getting some of the minutes of their meetings and talking about how they wanted to push to have fewer people in the prison system as well. So just a suggestion.
The Deputy Chair: Before you answer the question, I would like to ask Senator Bernard and Senator McPhedran to ask their questions. We're pressed for time, so could you answer the questions after they've asked their questions?
Senator Bernard: Because we're pressed for time, I won't ask a question, but just to build on what Senator Pate said, I think one of the things that could be added to the work that you're doing is some research on restorative justice that's already been in place, looking at that existing research. We have had restorative justice for young people for some time now. What is the research telling us about that, and what might that look like with adult populations?
Mr. Piché: Thank you.
Senator McPhedran: I will ask a question that is somewhat closed, I guess. As an example, I'm looking at page 6 of your report, and thank you to everyone for the thoughtfulness and the effort that's gone into this. It's very much appreciated, as is the orientation of the analysis that you've brought through the record. I'm looking at the Dauphin, Manitoba example — I'm an independent senator for Manitoba — and I'm wondering two things, one just to flag for our clerk about whether we might be able to see this when we go to Manitoba.
My question to you doesn't have to be answered today. It's more in line with where you're going for fleshing out some of the key points that you've made. Is there a model that exists, or could you perhaps develop a model based on your research and analysis that you've already achieved, of how something that is essentially midstream could be significantly rerouted? What would be possible for a project like this? You've used the term "touted'' by the Government of Manitoba as one "designed and opened as a First Nations healing lodge,'' and yet it's carceral.
My question would be: Does it make sense in furthering many of the points that you've made to take one or two test cases — this may or may not be it — and explore how to stop the model of incarceration? The building is going on. The staffing is going on. There is the kind of shift to shift it to the services that you're talking about, the rehabilitation, the opportunity building, et cetera. Has that ever happened? Even if it hasn't happened, is there a model or a proposed model that we might look at to take projects that are on that prison track and stop the incarceration part and look at an actual template for shifting?
Obviously, I understand all of the different departments. Yes, of course. But if we don't figure out how to take resources where there are already investments and shift them, then we're looking at a zeitgeist that just continues like a juggernaut for our society.
Mr. Piché: It's a good point. I think it would be worth doing that exercise. In some of the other research I do, I focus on what happens to prisons when they close. Often, they get turned into tourism sites. Perhaps you have bought your tickets for KP for this summer already. I think the question of how we actually repurpose the facilities is an important one in their post-prison lives. I haven't thought about what that would look like actually taking a facility that's in the process of being built and shifting it toward something else, if that's even possible given the nature of the infrastructure that's being built, but it's worth reflecting on. We appreciate your suggestions, and we'll take this work forward. Thank you.
The Deputy Chair: I want to take this opportunity to thank all of you for coming in. As you can see, you have generated a lot of interest, and this is a conversation that will continue. I thank all of the senators for attending, and I bring the meeting to an end. Thank you.
(The committee adjourned.)