Proceedings of the Standing Senate Committee on
Human Rights
Issue No. 18 - Evidence - May 15, 2017
KINGSTON, Monday, May 15, 2017
The Standing Senate Committee on Human Rights met this day at 6:10 p.m. to study the issues relating to the human rights of prisoners in the correctional system.
Senator Jim Munson (Chair) in the chair.
The Chair: Honourable senators and the public here, in the Kingston area, welcome to our public hearing. Sorry we're a little late, but we were very busy today in Brockville and at Joyceville. It's been a very fascinating and interesting experience.
We are the Senate Human Rights Committee, studying the rights of prisoners in the correctional system. For the audience today, just for background, we began this study about two months ago. We've had 23 witnesses thus far, with six hearings, all in Ottawa, and we felt that if you're going to understand the road, you have to get on the road. Brockville and Kingston are our first stops in a study that could take a couple of years.
We hope to have a report with observations in September, but we plan to visit a number of institutions and healing lodges across the country and perhaps do some international travel in countries that seem to be doing better than ourselves in taking care of the human rights of prisoners.
First of all, just some housekeeping. I would like to make a motion that if cameras arrive here to televise these hearings, they be allowed to do that.
An Hon. Senator: So moved.
The Chair: Approved, thank you.
We have with us tonight, as an individual, Sean Ellacott, LL.B., Director of the Prison Law Clinic, Faculty of Law, Queen's University. By the way, I told my new intern who just started with me two weeks ago to connect with you folks because she's coming to first-year law at Queen's.
Sean, the floor is yours. I'm sure you have an opening statement, and the senators are always curious and will have a number of questions. Welcome to the committee.
Sean Ellacott, LL.B., Director, Prison Law Clinic, Faculty of Law, Queen's University, as an individual: Good evening, Mr. Chair and honourable members of this committee.
The Chair: Before you do that, I have made a crucial — I wouldn't say rookie — mistake. I made a 71-year-old mistake. I didn't introduce our senators, so I'll ask them to introduce themselves.
Senator McPhedran: Senator Marilou McPhedran from Manitoba. Thanks to everyone for being here this evening.
Senator Hartling: Senator Nancy Hartling from Moncton, New Brunswick, and welcome everyone.
Senator Pate: Senator Kim Pate from Ontario.
The Chair: I'm Jim Munson from Ontario and Ottawa.
Sean, go ahead.
Mr. Ellacott: Thank you.
It's a privilege to be here speaking about these human rights issues because they're critical, in my view. Also, I'm grateful to this committee for undertaking this project. I'm sure you're already aware from prior hearings you've had that a lot of it's not going to be simple. There are some complex issues, but no less important issues, and I'm grateful you're doing this.
By way of background, I became Director of the Prison Law Clinic at Queen's Faculty of Law in January of this year. Prior to that, I was in private practice as a criminal lawyer and a correctional lawyer. The correctional aspect of the practice dealt during those years mainly with parole hearings but also with a lot of offences, many of which involved violence and homicides that took place within the prison system between inmates, as well as drug offences, but mainly offences involving violence that were tried in the criminal courts.
The Queen's Prison Law Clinic, which used to be called the Queen's Correctional Law Project, is almost 40 years old. Over these last four decades they have provided legal assistance in terms of parole hearings, representation before disciplinary courts inside the prisons, summary advice, assistance with grievances for all range of problems, and they've been doing it in numbers beyond, I think, any clinic of any kind in the country. Last year, we had over a thousand intakes. Obviously, Kingston is a prison-rich area.
Mainly, the assistance is brought through law students under the supervision of staff lawyers. More recently, the Prison Law Clinic has been adding a layer of litigation, and so since January we have brought a half dozen judicial reviews already. Some have actually finished already; some are various stages.
I was actually a student in that program 15 years ago. Through that process, I ended up coming across a lot more files and issues and a loose or anecdotal sense of the numbers of those issues than I did, for instance, in private practice, where you're quite focused on the granular detail of each individual case.
As I said, a lot of what I recognize this committee is going to be tackling is complex. I want to try to avoid unnecessarily repeating some of what your prior witnesses have said. I did review some of the hearing material from certain people, not all of it by any means. I already saw part of the difficulty that comes out in answering a simple question like: What is segregation?
There have been several different answers to what segregation is in practise and what it looks like in a cell. Answering questions like that, I think, is going to be part of the challenge. I do, however, think there's some low- hanging fruit that will add motivation as the committee moves along and for people to think that not everything is so difficult to overcome. I think there are some areas that are much more obvious and straightforward than others, and I hope we'll get into some of those as well as some of the larger, more complex issues.
I'm not sure if your tour today was too busy to include the prison museum, but it's about a ten-minute walk from here. The rooms of that place remind you of some of the issues you have to deal. It's divided into separate rooms. The rooms are basically a history of Correctional Service Canada culture. It's a very deep and wide culture in this area because it goes back a long way. Generations of people have worked and now work in that industry, and you'll see that represented prominently in the prison museum.
That culture is sometimes the best part of what CSC staff have to offer in terms of their prisoner care and their ability to keep security in the institutions, but it's also deep within an industry that, in my view, has had to change over time. It's hard sometimes for culture to similarly change. Sometimes having a large and deep culture like that is a strength and a weakness.
There's also a room that sets out the history of punishment in our prisons. What this room has in it are torture devices that used to be used up until different years in the system. It's a really useful reminder that in some cases, not that long ago, we still had full buy-in to practices that are not only not practised anymore but would seem absurd if they attempted to reintroduce them. Some of those devices are demonstrably torture. Some that were discontinued in the last century, for instance, are written about in books by Foucault, and they were used. You're looking at the actual devices in that museum. Some are just more extreme forms of waterboarding.
You see sort of another part of our history and how it's changing and how anyone who thought that things were set back then obviously would have had to have their mind open to the fact that they're going to change. Strapping tables that were used as late as 1969 at Stony Mountain prison, where people were strapped down to tables naked and struck with huge leather straps, that's in my lifetime. It's worth including that so that people can see the arc of how a number of things have changed, but they maybe wouldn't have seemed that way at the time.
There's another room that reminds you of how difficult it is to run prisons. It's a room full of seized weapons — homemade shanks, homemade guns, crossbows fashioned out of forks, plastic and toothbrushes. It's a reminder that there's a lot of ingenuity at work behind danger — danger to other prisoners, danger to staff. These things are separated off into their own parts.
There's another room called "Hidden Talents,'' I think. It's a room of inmate artwork that reminds us of the human side of prison, remarkable artwork that has been accumulated. That room is probably too small because I've seen a lot, through clients of my own over time, that could have filled the entire museum. But it reminds you of a completely different inner life that's at work with human beings who are trapped in these places.
There used to be a number of exhibits that dealt with escape, and I don't think they're there anymore. It's too bad because it's a reminder of how desperate people would be for a variety of reasons to change their situation once they found themselves there.
It's clearly an incomplete history, but it's one that grounds us. This committee is looking into human rights, and these separate rooms contain all of the different challenges that you're going to be trying to bring together, I would assume, in the final report that comes out.
I'm privileged to answer whatever questions I can to help inform this process. As I say, I may have things to say that can help some of those harder processes and suggestions for the less challenging components of what I view as likely candidates for change.
The Chair: I was asked a moment ago about the whole farm business here in Kingston that, from my perspective, was quite successful over the many years and then was taken away. The government now has set up an advisory board to take a look at this. From my perspective, there's not much to look at. Just get on with, get back to it, because I think it's an incredible tool to enhance a prisoner's life and human right to work, even while in prison. I'd like to get your view on that.
Mr. Ellacott: That farm in particular, the one that's behind Collins Bay but which was serviced by what was then called Frontenac Institution but is now called Collins Bay minimum security institution, as I understand — I'm not an expert on the farm issue, but as I understand it, that farm in particular was probably the most financially rewarding farm in terms of what it could produce for CSC. And that's not even counting the more intrinsic benefits, the job training benefits, which I think some people have felt as though, if you weren't going into farming, then how could that be good job training? But I think that overlooks the essence of farming, which is really problem-solving, and animal husbandry, carpentry and everything else. I had numerous clients back in private practice who were on the farm for extended periods of time. I never heard anything that wasn't glowing in terms of its impact on them.
Senator McPhedran: This is a supplementary to that question and it comes out of information that we were given this afternoon from some of the prisoners, who talked about how horrible the food is. We had already been informed that the food is not made on site —
Mr. Ellacott: Not anymore.
Senator McPhedran: — that it's shipped from far away. The whole notion of locally produced produce is lost. One of the points they made was that there is a gravitation away from even eating the meals.
Mr. Ellacott: Yes.
Senator McPhedran: People are buying in the canteen, which is not, in many cases, giving them anywhere close to the nutrition that would be possible if it was coming from the farm. I'm wondering if you have any further observation on that or any specific recommendations.
Mr. Ellacott: Well, that's coming more and more frequently to the clinic in terms of grievances, some brought from Type 2 diabetics, for instance, of which there is a larger population than ever before, saying that although it's supposedly supposed to meet certain dietary requirements, it doesn't seem to be.
I think it's a shame for a number of reasons. You would think they would have been expanding the farms at a certain point in time. The closure of those farms had an ostensible rationale that it was a competitor in a market, and yet almost everybody on the prison farm, the core members of the people who were trying to save the prison farms, were farmers. Local farmers wanted the continuation of those farms and to a large extent actually preserved the herd themselves.
There's no question that nutritionally, from all the feedback we're getting, we're lacking much more than we were previously, so you'd think they would have been expanding them when they were just closing them. It's a shame.
The other end of that, though, is that there are exceptions to this. People who are trying to be realistic about release, who are trying to acquire job skills, one place is the farm and one place is something called CORCAN, where you could learn welding and heavy machinery stuff, but there are very few industries that employ as many people and are not quite as concerned with a criminal record as kitchens. It's hard work. There were people getting trained in kitchens all that time who are no longer getting trained in kitchens. So you're not training to feed yourself better when you get out and you're living in poverty, and you're not being trained to pick up another job skill that you could have picked up if you had been working in the kitchen in the last two or three years. There were a number of inmates, again clients of mine over the years, who to lose their kitchen job was a big deal. It helped people stay on track because they don't want to lose jobs through disciplinary sanctions and whatnot.
Senator Hartling: Thanks for being here, Sean.
Mr. Ellacott: A pleasure.
Senator Hartling: Does your law clinic keep data on grievances and calls that you get that you could share with our committee, not necessarily the names, but the kind of grievances?
Mr. Ellacott: Yes, I understand.
I've been there since January. As far as I know, in terms of grouping the data and being able to track grievances or even in summary advice matters, we don't have the capacity right now to look up how many of those are related to diet, to religious accommodation or to accommodating disabilities. It's just more numbers that we're supposed to be keeping track of, and it's for a different purpose, which is why they aren't itemized. It's a good idea. Given where we're situated and the number of files we can handle with the students, it would be a pretty good indicator of where things are at.
Senator Hartling: You've been there since January, so what common themes or common issues are you seeing?
Mr. Ellacott: We get a lot of disciplinary court that we help people with. So, say, last year total intakes were about 1,100, and disciplinary court was about 355 of those, "intake'' meaning that it could be several intakes for one client. It's one matter for each client. The number of clients that would have been in disciplinary court were 355. There were about 60 parole hearings during that period of time, and then other institutional matters, probably about 250 different inmates. So it would be useful to have a sense of the data that we track that way.
In addition to disciplinary court and parole, since I've been there I would say food is probably the one I've heard most about in the files. After that, a few different types of accommodation come up, some of which become more Human Rights Commission-type stuff or not accommodating disabilities, back problems, that kind of thing.
As I'm sure you are aware, there are a lot of older inmates now. There's a lot of figuring out that's going to have to go on as that population ages because. Just in my one private practice, I had numerous clients die of cancer while they were in federal custody. Not only are they not supported in terms of family and whatnot generally, but trying to pull off palliative care and that sort of thing, I can't imagine how difficult it was — although I know how difficult it was. Surprisingly, you'd think that if those people had been eligible for parole during those periods, it would have rendered them not much of a risk. But that actually wasn't the case with parole hearings. People who had months to live were not released on parole. I'm aware of several cases like that, where they couldn't have represented much of a risk at that point. But there are not a lot of halfway houses equipped for that. If there are, they are hard to get into.
Senator Hartling: So that would be something we could be mindful, looking at the aging population and the health issues that come with that.
Mr. Ellacott: Yes, end-of-life care, I think, is going to be a bigger one.
Age wears differently on a federal inmate. Closing in on 50 tends to be kind of older. They live a different life.
Dr. Fedoroff, a forensic psychiatrist at the Royal Ottawa, has been an expert at dangerous offender hearings that I conducted. One of the things that he would tell people who were being asked to go on chemical castration drugs like Lupron — one of the concerns is they give you a bone density scan, and people are worried that their bone density will decline because of the Lupron. He would tell them that a lot of studies show that incarceration itself actually causes a decline in bone density because of the lack of movement, probably more than the Lupron would in most people.
Some people are on Lupron even though they're not in the community. They're trying to show that they will go on Lupron and that they could be better candidates for release. People are going through a lot of health changes that are accelerated because of federal custody.
Senator Pate: Welcome to the committee.
Senator Pate: I have two questions.
First, you mentioned there are six judicial reviews you've been doing, just since you've started. I would be interested in not the names but the details of what you're looking at.
Second, I want any examples where you've used sections 29 or 81 to get prisoners out into appropriate community- based settings — indigenous prisoners, or mental health or aging — and into medical options.
Mr. Ellacott: I'll do the second one first because it's a shorter answer.
I'm not aware of any since I've been there in January. It could be that the review counsel has a couple in front of her right now that have not come up in conversation, but I'm personally not aware of any that are under way, at least through the few people I was supervising directly or through one of the other review counsel. I actually asked them that in anticipation of coming here.
I know that in other contexts — and I'm thinking of, say, section 29 in particular — it seems like the situation with mentally ill inmates screams out for more of that. In my experience, in a lot of different areas, half the difficulty, even if CSC were onside — and I'm not saying people shouldn't be trying this — is getting the hospitals onside.
I don't know how often it's going on with female prisoners because Grand Valley is not really within our — I've had clients at Grand Valley but not clinic clients, obviously, at Grand Valley. I don't know if it happens differently for female inmates or not, but it's hard to get certain types of offenders, mentally ill federal male offenders, into hospitals, who have a choice about who they take or don't take.
That's the case with dangerous offender hearings. It used to be that people who had applications against them to be designated dangerous offenders would go to a psychiatric hospital to be assessed before the hearing. I can't think of a case where that's happened in years. They come out and visit them at the jail or they drive them over for an interview and then drive them back to the provincial jail. It's a path of least resistance.
Even the inmates themselves, a lot of the people who are most seriously mentally ill aren't necessarily going to be known to be as dangerous, say, to staff. It doesn't all manifest itself in danger. However, their histories might look on paper like the sort that a hospital might want to have to be talked into.
I said "short answer''; it wasn't that short. We don't have any that I'm aware of right now.
In terms of judicial reviews, we just got a decision from the Federal Court. The decision is posted at this point, as is the name of the person. That one concerned procedural fairness within disciplinary courts, and they granted the review and quashed the conviction.
One is coming up right now, about to be heard. There's a provision under the previous government where parole reviews for dangerous offenders or lifers were every two years and were made to be every five years. That was the idea, at least. They changed the Corrections and Conditional Release Act so that if you were unsuccessful at parole, you would have to wait five years before you could apply to get back before the Parole Board.
They forgot to change the Criminal Code. The Criminal Code still says to those people who were sentenced that way that it has to be within two years. The Parole Board of Canada decided to read that as, "We're just going to go with the Corrections and Conditional Release Act, even though nobody changed the Criminal Code.'' That one's going to be heard soon, basically asking for a declaration from Federal Court that the code still rules. And, in fact, it can because the new provision says "within five years'' and we're saying "within two years is within five years.'' You can actually read both of them.
The Parole Board decided on its own that it would no longer follow the Criminal Code, a provision about parole, which is remarkable. It was remarkable to us. We thought it would just take a letter. It didn't. So that's going to be heard soon.
There are a couple of other cases that the Department of Justice has conceded already and we got orders for. One of them touches on what I would call the low-hanging fruit for this committee. I don't know if this has come up yet or not, but disciplinary segregation and what I would call punitive segregation as opposed to administrative segregation has been the subject of a lot of reports by the Correctional Investigator and has been discussed before this committee at some length.
There was a case where an Aboriginal inmate who battled alcohol most of his adult life had homemade brew in his cell at Collins Bay. One of our students was representing him. He got to his disciplinary court trial and was basically told, outside of his counsel's presence, that the independent chairperson — who is like a judge in these little courts inside the prisons — had decided that since he heard from others that this guy would be pleading guilty, he was willing in this case not to give him 30 days of segregation as long as he pleaded guilty on the day. The client said — it's in the transcript — that he wasn't guilty, and he wanted to run his hearing, but he was in an intensive alcohol rehabilitation program. Contrary to what some people would say, you can't continue that while you are in segregation. He didn't want to lose his place in the program and the progress that he had made. There was this last-minute offer of having 30 days in segregation suspended for 90 days, so that if he doesn't offend at all in 90 days it goes away; if he does offend, then he has to serve that segregation.
So on the eve of his trial, he is basically being offered to take that or, and I quote: "If you go to trial, that's not something that would be left on the table anymore.'' So he ends up wanting to stay in his alcohol rehabilitation program and continue to make progress and avoid having this opportunity for segregation.
Oddly enough, I think so that they could say they weren't going to give this person segregation, after he takes the deal, cancels his trial, pleads guilty, and gets 30 days suspended for 90, he's told during sentencing, "I would not have sent you to segregation, but I would have given you a loss of privileges,'' after he's openly told at the beginning that not going to segregation is off the table. This is for making brew in your cell, an alcoholic making brew.
So there was, as I said, some discussion about segregation and what that means in practice. With administrative segregation — which has been properly, in my view, criticized before this committee at some length and has to have its numbers brought down — at least some people are trying to make the point that we'd like to keep reducing it. At a baseline level, we need it to establish security in institutions for periods of time. Like they say, there's some necessity for it, that it's not about punishment; it's about security of the institution.
But there's a section of the same act and descriptions of segregation as having everything available to you that you normally would, as long as you can do it through a slot and someone can do it that day, and as long as it doesn't involve any other inmates, so forget your programming. Although that says you're supposed to have a right to the programming as long as nothing involves other inmates. So your education, your programming, any group work you're doing, any addictions treatment that you're doing is not coming through that slot in the door.
The worst part of this segregation is that it only has one purpose. These people aren't a threat to the institution at that point. This is a sentence for punishment only. It's the only place in the law that has such a thing. It's just for punishment. Nobody even pretends it to be anything else. That's why they hang it over the head of an inmate to see if they'll do good, because "You don't want this to happen to you.''
There are no inquiries into the mental health of inmates prior to getting punitive — I'm calling it punitive, but disciplinary segregation. It doesn't have any other purpose in fact or in spirit. Even though it's probably only about 4 per cent of the segregation admittances over the years, in my view it goes beyond just influencing disciplinary court and it goes beyond just segregating people who shouldn't be segregated. It sends a mixed message through the entire Corrections and Conditional Release Act.
You've been hearing all this evidence about whether segregation is punitive or not punitive. It's the same segregation. It's physically the same thing, and it's designed under section 44 of the CCRA to punish inmates for behaviour. It's exactly the same.
It's confusing when this subject comes up and gets discussed. If you are a guard or a classification officer, you are well familiar with disciplinary court. You would have been there many times. You would know that this segregation is being handed out or threatened or hanging over people consistently; it's part of what you do with inmates if you're following the act and the regulations.
And you don't make inquiries of mental health. You also don't make inquiries about whether you've had it done to you already in the last few months. Even though there's a maximum 30 days on it, which is a long time, that 30 days could happen two months later, and two months later, and two months later. This is probably the next area that we would like to pursue in terms of getting the whole thing declared — it ought to be unconstitutional.
We're realizing more and more about the effects of segregation. People could be forgiven for not knowing certain things over time. Knowledge increases, but this provision is still sitting there. We know that it causes psychological damage to a group of people who are psychologically compromised in far greater numbers than the general population. This is a recipe for producing angry and more volatile people and people who are less able to reintegrate with society later. It has no positive effect.
As I say, I think there are a lot of complex issues. I have not heard anybody defend this. I don't know; maybe they are. I don't understand why it's still in there, given that there have been 15 years of Correctional Investigator reports talking about the overuse of segregation, period.
Occasionally critics will point to disciplinary segregation like it's to be admired because there's a 30-day cap, but they ignore that it actually has not even an ostensible proper purpose. Leaving aside whether you think that administrative segregation is a necessary evil or an unnecessary evil, it doesn't matter which camp you're in — that's the only purpose behind inflicting psychological damage on people. That's what I would say is the low-hanging fruit, in my opinion.
Several cases have been conceded already by the Department of Justice, so they're not going to get litigated. This one here got conceded, so it's now not going to have a hearing.
Most of the ones so far, other than the parole one that I mentioned, are disciplinary court, procedural fairness issues that we just found were coming up over and over again. We felt like we needed newer case law, specific institutions in particular, and that the institutional chair people seemed to be ignoring what we think are clear indications of procedural fairness.
Senator Pate: Supplementary to that, would it be possible for you to speak to your clients and, with their permission, share that documentation?
Mr. Ellacott: Yes.
Senator Pate: That would be great. Thank you.
Mr. Ellacott: In fact, a number of them are public documents now. The Crown has in some cases agreed with us. In other cases, they're filing their materials at Federal Court, in the Federal Court registry, so I'm able to give you the arguments as well as the counter-arguments.
Senator Pate: Are there non-disclosure clauses in any of the settlements?
Mr. Ellacott: I don't think so.
Senator Pate: All right.
Senator McPhedran: On the point of documentation, I want to make sure I understand. You referenced over 1,100 cases, and there could be multiples of one individual over time. That was for the year 2016?
Mr. Ellacott: That was for 2016 and into corporate year-end, March 31, 2017.
Senator McPhedran: I don't want to take the time now, but hopefully we can follow up with more precise numbers on that.
Within that list, could you speak to any experiences, reports or requests for assistance of any kind on the basis of sexual orientation or gender identity? That's a more general question, but I would ask in specific terms for those who have a transgender identity.
Mr. Ellacott: We haven't had any since I've been there. This came up recently because students had done presentations. I gave a list of potential subjects. One of them was that subject, and a student did pursue it.
A PhD candidate from the University of Toronto is vigorously pursuing this, and he's run programs for trans inmates in different places. I met with him one day to talk about the challenges he's facing and how we might be able to help with his studies. I think that CSC's official number is about somewhere in the mid-30s. However, for obvious reasons, that number can't be accurate. It's too dangerous for certain inmates to make that number known. Who would they tell? What sense of privacy would there be? A lot of inmates do feel an antagonistic relationship towards the Correctional Service. They don't think they're going to get something better for that process.
As I understand the case law, the last time that the issue of how to accommodate this went to court, the last case you see, is about 2001. It's ancient given the issue and how much it has changed and accelerated. There were several inmates after that who brought either judicial reviews or some kind of action for accommodation in other places, and all of those were settled. So there's no precedent for that.
As I understand what CSC is doing now — and I'm not an expert on what they're about to do — is that their process is going to try to mirror what's happening in both British Columbia and Ontario at a provincial level. That's what I'm told loosely through a student's research into that. Those two provinces seem to be ahead of the other provinces, as I understand it.
Senator McPhedran: And what are they doing?
Mr. Ellacott: I wish I had brought her assignment with me.
There was a ] list of changes: obviously placement itself; funding of either hormonal and/or surgical procedures, whether on the pharmaceutical side or otherwise, because there's some confusion between the provinces and the feds over what's covered and what ought to be covered. I can't remember all of what's covered. It's certainly not my area of expertise. As I understand it, I think that's coming within the next year, a revision of this, and I think probably it was under serviced by the fact that settlements were offered to people and no one ever came to know what they got. This is a spread-out Correctional Service. If you're in Renous and a lot of those settlements take place in, say, British Columbia, you have no idea what is even available to you, and you live your private problem with that over time.
It's certainly one that we're going to be looking out for, which is why I put it on the list for someone to research and put a little packet together for future students to access and why I was meeting with this gentleman from U of T as well.
Senator McPhedran: Thank you.
The Chair: You talked about that segregation issue and made a very compelling argument in that regard. I'm wondering if you're aware of any accommodations that are available for federally sentenced persons with — we talked about mental health issues — also intellectual disabilities, autism, for example. Are any accommodations made for them during parole hearings? Do you have any concerns with respect to the ability of these individuals to obtain parole?
Mr. Ellacott: Well, autism is one that hasn't come through the clinic, but if I was still in private practice, I would be in the middle of an argument about whether or not a specific client could even be incarcerated. The psychological evidence for that person was that it would be manifestly unbearable, I mean literally unbearable for that person — the enclosure. The physical meetings with people in authority are often a problem.
I'm not aware of accommodations that are awaiting these people, but this is another area where the incidence of autism appears to be rising according to what one reads. It also seems to be coming up in computer-related crimes, which is why I think it will be a Correctional Service problem.
A lot of more severely autistic people may be less likely to get involved in certain crimes of violence because of sensitivity toward personal space, but a lot of people that I'm seeing in the criminal justice system that you feel like you wouldn't have seen in the past, it's related to computer use, where a lot of people are much more adept at computer use. It's where you find communities that don't rely on interpersonal awareness. It plays to their strengths in a lot of ways, but sometimes that can also get people involved in the wrong places and then they end up before the courts.
In private practice, I briefly researched how things could play out for a client, and the people that I consulted with had no good answer to questions. That was within the provincial system and in the federal system, and I was speaking to higher-placed people in that case.
The Chair: I have a general question, and then we'll go back to Senator Pate. We're going to Millhaven tomorrow, and we're going to go to the Bath institution. If you were with us and were to be asking questions of prisoners or of the warden or of those who are there, what would you be asking? What would you be looking for?
And I mentioned earlier, this is the beginning of our committee hearings on the road. What we've learned today is that these two institutions will be extremely important to what we're going to see in Quebec and Atlantic Canada and the rest of the country.
Mr. Ellacott: There's a regional treatment centre inside Millhaven now. It's sort of out the back, after the loading dock.
The Chair: Yes. We're going to be there.
Mr. Ellacott: So I would go there.
I'm not sure how much prison changes when a group of senators arrive at the prison. This is a tough fact-finding project that you have embarked on, in my view, and I don't say this in a sinister sense. I just think the reality is that there are people in a relationship who can be antagonistic towards each other, say inmates and staff.
One doesn't hear about a lot of whistle-blowing within CSC. The most famous segregation case in the news right now is the Adam Capay case, which you can link back to one single whistle-blower who sent a tweet out about Adam Capay, who was a guard at that institution in Thunder Bay.
I'm not saying there's a big thing everybody's sitting on. I just find that I'm not sure in terms of the questions and how to arrange people to feel sort of freed-up. I'm sure there's a process that you've thought through already, but that would be part of it.
When you do criminal cases that deal with prisons, what you find is — this is my own opinion, not the Queen's opinion. I found that things like statistics are not always what they seem when you do dangerous-offender hearings. You could look up a hundred of them that used to have the same show put on by the Parole Board and Correctional Service Canada, and their idea was to show the court that dangerous offenders, they get out on parole when they're ready. The numbers were never right. You had the ability to cross-examine them, and they were not even close to being right on those issues. They just stopped using them in hearings where I would give notice that I was going to be asking for the source of those numbers.
When you go to the V and C, or the visits and correspondence rooms in prisons, almost all the tables around you are mic'd so that people can be listened to while they're talking to their spouse or loved ones or what have you. So you're in the visiting room. Now, if you get a case where you have found that either of those tables — in order to listen to people, you're supposed to get authorization from a warden in writing. You're also supposed to get authorization from a warden in order to, in a sense, wire-tap or tap into the phones and intercept communications between inmates.
There's not much privacy in prison, so what's left of it takes on a greater importance. But it's a rare criminal case where, when you actually get the ability to say, "And now could I have disclosure of the authorization that is in this document saying that we got authorization to do this,'' you never get it.
I would be asking if anybody tracks things like that. Does a system that allows you to listen to phone calls and listen to private communications in visiting rooms with your loved ones — it's physically a button to press to listen — does it track that? Is there a chip? Is there something in that system that can say how many times a month is somebody listening, and how does that correlate with how many written authorizations to listen there are?
Anecdotally, this came up in two or three cases, but it's not good so far. The evidence doesn't seem to be that those match up very well at all. So I feel like there are these auditable areas of prison.
Also, their ability to retain videotape of incidents seems to be just — maybe they just had a bad contract. I really don't know what it is, but most things are on video now. If an inmate is about to be involuntarily transferred to a higher level of security, a lot of times the answer is on a videotape.
It happens in disciplinary court, too. Inmates say, "Please get the tape; please get the tape'' because they want what's on the tape; there's no tape. Somewhere it got lost, or the machine wasn't on, or that kind of thing. I don't know how much that comes up in other areas. I've read about it occasionally in Correctional Investigator reports and stuff like that. I would be curious to know how often they're having breakdowns in terms of that kind of thing.
This may seem arcane, but in terms of getting due process for people who have transfers at stake, higher security levels, potentially criminal charges that could be resolved just with the use of that tape — because you do see them show up when they're bad. They tend to provide damning evidence of odd things happening.
I saw one the other day with a drone dropping a package and somebody was standing right where that package landed. This is a whole new area we're getting into.
It's a hard question to answer without being there. I would talk to people who are the heads of inmate committees because they've already established themselves as a little more willing to be seen. A lot of people just follow this general advice: Be the kind of inmate who no one notices when you're gone; you stay out of trouble. And other people take on leadership roles, even though that's not always a great thing to do if you don't want to incur wrath and stuff like that. So those people I would think generally will feel more comfortable speaking their truth.
The Chair: Well, we may not see everything we want to see, but we'll try.
Senator Pate: Picking up on a couple of things you mentioned and alluded to, how often are you seeing third-party information used as a basis for disciplinary charges as well as for breaches of parole?
We were at Joyceville and we will be at Millhaven tomorrow, where they both have assessment unit components. The number of breaches coming in was something that was discussed. We haven't had a lot of evidence about the types of breaches and what the basis for those breaches are, but I know you've had experience with those.
Mr. Ellacott: You mean like post-suspension breaches?
Senator Pate: And disciplinary charges based on third-party information.
Mr. Ellacott: Not much third-party. Do you mean outside the prison or inside the prison?
Senator Pate: Inside the prison.
Mr. Ellacott: Oh, well, often the investigations that lead to, say, getting authorization to do an exceptional search of someone's cell, almost all of those are based on so-called reliable information.
Senator Pate: And have you had an opportunity to test that information?
Mr. Ellacott: Very rarely in the prison context. You get the gist, as the old case says, and that's about it. In criminal court, in my prior practice, we would push for — and these are drug cases where something's found in a cell and maybe two people live in that cell — at least enough information that could allow you to establish that your client could be seen not on a video in the appropriate place and time, but that tends to be an uphill slog to get at that.
That's why I feel like technology doesn't seem to be keeping up with it. It could help them establish all kinds of things that inmates — it's not just for one side. It's for everybody, but in terms of the fairness issue, it seems like it's fallen and is way behind where it could be right now. But there is a lot of third-party information in those situations.
I haven't personally done many recent post-suspension hearings. There are a number in the clinic right now. I think a lot of those come from urinalysis. Maybe someone doesn't show up for their urinalysis, doesn't phone in or doesn't introduce new people they've met. There may be stipulations that they need to — say you have a new intimate partner and you didn't tell your parole officer early enough in the process. There are a lot of breaches along those lines.
Senator McPhedran: This is a question that you might consider too impressionistic, so feel free if it is so. I'm wondering what your impression is over the years that you've been involved in the clinic at Queen's Law and, in particular, whether you are seeing more or less bias directed to obvious minority prisoners. I've already asked a question about transgender prisoners, but let me take it to racialized prisoners, to prisoners with obvious challenges of mental health and/or developmental capacity, the kind of prisoners that one might assume, perhaps not correctly, would be more prone or easier to prey upon, easier to discriminate against and perhaps easier to punish. Does any of this resonate with you in terms of your experiences?
Mr. Ellacott: My time directing the clinic is really just the last several months. I'm in Kingston and am aware of the people who have worked at the clinic over the years. I was in it as a student. Because of only being director for a few months, I really couldn't tell you accurately as to whether there are increasing numbers.
I think certain systemic issues, whether they're increasing or not, are still there. I think there's a problem with that. There's a case that's about to go to the Supreme Court called Ewert, and it deals with the use of actuarial measures on a First Nations inmate on the argument, which has so far been successful, that these actuarials haven't been validated.
Between doing a lot of dangerous-offender hearings in criminal court and doing prison law and a lot of those, my own thoughts over time have been that CSC is way too slavish in their following of actuarial measures; it just takes too much priority. And a lot of these are based on static factors, so they can't change. The person's score really can't change because the dynamics, which are the changeable factors — you can improve your education; you can reduce your addiction, the level to which you are addicted to things; you do attenuate, according to the literature, in terms of your violence as you grow older. All things change, but a lot of the actuarials don't change with them in my opinion and in the opinion a lot of forensic psychologists who don't work for CSC.
So I've always thought they were overused. They're over-relied on, in my view, by the Parole Board because they provide what looks like a numerical probability. It doesn't really work that way. The groups that were used for the two main ones that come out of Ontario, though they're used all over the place, are called — and I don't know if this is going too far technically — called VRAGs and SORAGs, and they're supposed to predict whether or not you're going to reoffend violently or as a sex offender in the future.
The original sample of people were Penetanguishene people who had been let out over time, and that group, because of the time that they were in Penetanguishene, the nature of that hospital — which means that none of those people would have been on parole, which is what most of these people are going to be on — nobody took down the stats on how many of them were Caucasian, First Nations, African-Canadian. There are no statistics on those groups, and so a lot of people would say those aren't validated for other racialized communities either.
Ewert, although it's good that it's going to the Supreme Court, the trial-level record in Ewert is not great. It's too bad that a case with a larger record that you could say more about wasn't available or wasn't at the stage that Ewert is at right now, but I think the people who are on it are looking to make as much as they can out of what they have. It's just that the record could be better.
If you read the trial level, the experts called by the Correctional Service in that case, I mean, the remarks are scathing by the judge in terms of unstated bias. So it may not be prime for that reason, but why would CSC, which employs a lot of very qualified clinicians and people who have written articles about all kinds of these things — these aren't the people who were being called to just substantiate that these old scales work. In fact, the unstated bias issue in Ewert was that one of the others of those scales was the expert for CSC and didn't state it.
Senator McPhedran: In the late 1970s, early 1980s, Ontario went through a massive decanting of psychiatric patients into communities across the province, including in this area. This morning we were at a facility, part of the Royal group, and 10 times the number of people were in that facility prior to the mandatory release of psychiatric patients. We have lots of problems that we can attribute to the way that was done, but can you envision a Kingston area where the vast majority of people who are currently incarcerated are no longer incarcerated? Do you see it as feasible, desirable, to actually move to close facilities and have people released?
Mr. Ellacott: I think there are a number of reasons why there should be a lot fewer people incarcerated, and one of them is that I think the rate of people being released on conditional release has gone up slightly in the last year and a half. It seems to have changed since the last election.
One of the advantages of more people getting out on parole is that almost everybody is getting out at some point, and there are lower recidivism rates for people who have been out on longer terms of conditional release where someone could not just oversee their behaviour but point them in the direction of programs that are paid for as well. If it's some kind of maintenance program for whatever ails that particular inmate — it could be substance abuse, anger management — a parole officer will know where they all are and can get somebody enrolled in that.
Once you're warrant expiry date comes, that's not going to happen anymore, and most of that time of programming, unless you're a residential, in-hospital person for some reason or other, it's going to be private. It's really hard to get people residential treatment for addiction and that kind of thing who don't have money, and a lot of money. I've tried to do it in private practice with accused people. So you want people to have longer conditional release because you will generally produce fewer victims down the road.
I don't totally follow what you mean by "the area.'' Let's say that 20 per cent more people were released. Would I be a little unnerved by that? Is that what you mean?
Senator McPhedran: My question is partly in response to the context of Ontario moving to a "mincome'' plan for the province and also to the idea of deinstitutionalization of significant numbers of people — decarceration on a much larger scale as a conscious policy.
And, no, it wasn't a leading question about whether you'd be nervous. It was a question about what you would envision, given opening comments about the industry, if you will, of prisons in this area.
Mr. Ellacott: Well, I think there would be a lot of pluses to it. Again, you're getting back to technology in a lot of cases. But when you get a client in private practice who has the funds to do this and you're trying to get the person out on bail, for instance, you realize that ankle monitoring now is at a totally different level than it was even five years ago. Obviously there's GPS on those ankles now. A lot of the concern with certain people on parole is where they go, for different reasons, but where they go might be the big issue. So you'll have a GPS that can tell you where the person has gone, recreate their days, et cetera.
I'm not looking for a surveillance state, but there are other ones that actually go off and send an alert because they sense if there's alcohol in your bloodstream — totally reliable. There are companies out there now that you can set clients up with and they come to bail court for this stuff.
Over the years you hear about CSC pilot projects of different kinds that then stopped. Like, "Oh, some guy is in Toronto on the subway and the signal wasn't being sent out as well,'' like things like that. Then you never hear about that program again.
It's surprising, though, because it's easy to do it privately. If a client has money and you need to do that stuff, they're out there, and the prices are coming way down on most of it. The only reason it was more expensive before is because there was the one leading company who started it. Now there are two or three. The prices are a lot lower. I mean, you could have a lot of people out working, going to school, getting service provided outside of an adversarial relationship. It would be hugely advantageous.
The Chair: All right. We appreciate your testimony, professor.
Senator Hartling.
Senator Hartling: Has the law clinic experienced any pushback from CSC in terms of communicating with prisoners and accessing clients there? Has it been a pretty smooth back and forth?
Mr. Ellacott: They've developed a pretty good relationship generally. I've found over the years that it's institution to institution.
Senator Hartling: Okay.
Mr. Ellacott: And it doesn't really relate to security level. It is something about a critical mass at certain institutions that are more difficult to deal with in terms of legal, access to counsel issues.
The clinic sends students out in person all the time, so very little of it is taking place over the telephone other than an initial call, and then we send someone out.
In private practice it can be somewhat frustrating to be legal counsel to people at certain institutions. If you drive out to Bath, your morning is gone, and you can sit in V and C for an hour and a half and nobody will actually tell your client that you're there. In fact, they won't tell your client that you're there because they say, "Well, we put it on a board out there and they have to look themselves.'' And you'll find out later it was not on a board, and clients will call you, frustrated, thinking you didn't show up.
So for certain institutions, any prison lawyer in this town — and there's a whole group of them — would be able to guess exactly the same institutions for access-to-counsel issues.
Senator Hartling: Thank you.
Senator Pate: It was your response to Senator McPhedran that caused me to want to ask this question. You mentioned that when you had paying clients, when you were defence counsel, they could get things like electronic monitoring.
But all of the research, including research that the Department of Public Safety has done, has shown that in fact all that does is likely increase the breaches that might happen and doesn't increase the potential for support in the community.
I want to ensure that we're hearing you clearly. Those are options that could be available when there are a few resources, but would you agree that the preferable situation is to have actual treatment programs and services that provide that kind of dynamic human intervention as opposed to static security measures?
Mr. Ellacott: What I would envision is that for a certain type of offender that is a more conservative outlook on whether that person should be released or whether they represent a manageable risk. I just feel like most of the problems could be much more easily resolved with technology that's a lot of cheaper than having somebody in a prison.
Now, there's no question that there's a net-widening problem with this kind of thing. Every time you suggest a way to get around a certain problem, all of a sudden people who no one would have envisioned electronic monitoring on are going to have electronic monitoring. That's what happened with conditional sentences and everything else.
On the other hand, let's say I'm an inmate and I have those choices. I can be in prison or I can be near my family. I can be near treatment that's in a more confidential, less an antagonistic, atmosphere, and I feel like I can choose from among treatments. If, say, it's for substance abuse and you're not really a 12-step sort of person, you're a different type of treatment module, you have more options. There's just a lot more options.
Although I'm mindful of a net-widening, I still think it's better to be out than in. I think there are a lot of people who don't need any electronic monitoring who are inside right now.
Not everybody sees risk the same way. If you do parole hearings and you see these different files being assessed, there is going to be a whole band of inmates. It's going to be a big number, because the thickest part of that curve are people that some would say ought to be releasable into the community to pick up different things. It could be skill sets. It could be all kinds of things. It could be just day-parole-type living in a halfway house, so at nighttime you're in and in the daytime you're out.
I do think that, however you look at it, that choice still — you should give people the ability to — they may feel like they're not a risk.
You're talking about studies I'm not aware of, but I don't know of that many people who breach electronic monitoring when it's set up in the bail context. I don't know many at all. I had one, but he literally left.
The other ones, I don't know that much about. I'd have to see what the monitoring was and what the study was because you're going to be more aware than me on at least that, among other things.
The Chair: Well, professor, thank you very much for your testimony tonight. It is very important for us. We learned a lot, and we'll try to follow up on your suggestions tomorrow as well.
Mr. Ellacott: Thank you.
The Chair: The work that you do with your students is extremely important. We appreciate it. Thank you very much for coming.
Senators, we have just heard fascinating and strong testimony from Sean Ellacott, professor at Queen's University. Our next guest is Catherine Latimer, Executive Director of the John Howard Society of Canada.
Great to see you again.
Catherine Latimer, Executive Director, John Howard Society of Canada: Thank you.
The Chair: The last time we saw each other was with your passionate testimony to the Liberal Senate open caucus, and that's where this idea of our committee started. We want to thank you for that.
We also have with us Lawrence DaSilva.
We saw you in Ottawa.
Lawrence DaSilva, Former Federal Prisoner, John Howard Society of Canada: Yes, sir.
The Chair: Great, passionate testimony.
And from the Canadian Families and Corrections Network, Margaret Holland, Ontario Co-ordinator, Visitor Resource Centres.
Who would like to go first? The senators will be here to ask questions. Catherine?
Ms. Latimer: I am happy to go first. I want to reiterate how happy we are that you're actually taking the time to go on the tour and go into some of the prisons and talk to some of the prisoners.
I think when I last had an appearance to speak to you, I gave you a list of some of the issues that really raise some human rights concerns, and I want to add a few more that tend to be a bit current and then talk to you about community corrections, which I think is part of what your agenda is for today.
One of the things that hit the news recently that raised some serious concerns was the death of Matthew Hines. I don't think we should sugar-coat what actually happened there. That was a lethal application of force by correctional officers.
Correctional officers are peace officers, so they are able to use force and they are able to use lethal force, but there needs to be a legislative framework and accountability models around the use of that kind of force.
I am concerned that the person who determines who is a peace officer is CSC and that there doesn't seem to be any individualized way of removing someone's peace officer status if it appears that they have used excessive force or in any other way abused the peace officer powers that have been bestowed on them. I'm wondering if it wouldn't be prudent to have some sort of external monitoring and accreditation and determination of who should be peace officers and who should continue to be peace officers, particularly after there is a significant incident of corporal or lethal force having been applied to prisoners.
The other thing I want to raise, and I'm quite pleased about it, is the budget indication that there are going to be additional resources for mental health concerns in the budget in Correctional Services, which is great. I do hope that part of that is used to provide alternatives to the use of administrative segregation.
We find that far too many people who are suffering from mental health issues are placed in segregation, and we will often find the correctional authorities saying that this is often the best place for them. I think it's probably the lesser of a number of evils, but I think we can do a lot better than thinking that administrative segregation, which we know causes significant problems for people battling mental health issues, is the best alternative. So I'm very much looking forward to seeing some constructive use of those particular resources. I think that's a very good thing.
The other news item connected with mental health issues appeared last week, and it really had to do with the excessively high rates of PTSD among correctional officers. This is a very serious concern. Things happen in prisons that are very traumatic for people, and it affects their ability to do their job. It affects their family life. It affects all kinds of things. I do believe that they need to have that kind of trauma recognized and corrected, but I think it cannot be limited simply to correctional officers.
Prisoners are spending 24 hours a day, month after month, in correctional facilities and are also bearing witness to some pretty horrific things which will cause trauma. Many prisoners have experienced traumatic events before going into prison and they will experience traumatic events while they're there, and I think it would be beneficial to expand any kind of PTSD strategy being applied to prison guards to also include prisoners.
One other concern that I have is in relation to delays in addressing rights abuses. This is because the John Howard Society and the BC Civil Liberties Association is actively engaged in litigation to question the Charter compliance of the administrative segregation provisions and their application.
That trial was delayed for six months on the understanding that the federal government would be introducing legislation that would address some of the issue at the core of the litigation. What we're finding now is that no legislation or proposals have been introduced, and the trial is going to take place in July, but there has been a long, six- month, intervention where perhaps we could have had a declaration that that was a violation of Charter rights and had some action.
So as you're going into the prisons, I would be very interested in getting some kind of assessment of how many people have been recently subjected to prolonged segregation and whether there have been any deaths in administrative segregation recently. There are some rumours through the grapevine that a man did hang himself in Atlantic Institution after about 118 days of segregation, but we haven't had any confirmation of that. That would be a very sad perpetuation of what many of us believe is a very fundamental human rights abuse.
I want to talk a little bit now about community corrections. Your last speaker indicated that the likelihood of being released on parole has increased slightly, but it's still at a very low level. Far too many people are being denied the opportunity to be released on parole or to experience any of the other kinds of temporary absences that prepare them for release, whether they are work releases or compassionate releases or any of those kinds of things. So you find that far too many people are being released at statutory release or even later than that, and that causes real concerns in terms of their preparation and, ultimately, for community safety.
The other concern I have, and I think one of the questions that Senator Pate asked alludes to this, is the likelihood that breaches are going to take place of people who are on parole, and what the standard of proof is and what the procedures around are for breaching people who are on parole.
I had someone contact my office last week. Her son had been on month-to-month, rotating-day paroles, and his parole had been revoked because the parole officer didn't get around to doing the paperwork to extend it for another month. His liberties have been greatly reduced because of administrative error, in the eyes of this mother, which doesn't make any sense at all.
Also, there is an indication that the behaviour that leads to breach has to be persuasive and credible, but I find often that particularly those that are bearing witness to the breach are saying they didn't witness any deterioration of attitude, or, particularly the soft breaches are very hard to determine and used far too easily.
I think that the longer somebody has stayed in the community crime-free and leading pro-social lives, the greater the onus is on the Parole Board to demonstrate why that parole should be breached.
I'm familiar with a case where a lifer had been in the community for 22 years and had been breached for a condition, not a new offence. I think we need to be very careful about the residual loss of liberties around that type of breach and what type of processes and procedures need to be in place.
The other thing I would mention — and in my mind this is unbelievably counterintuitive — is that CSC will take people they consider to be high risk and detain them until warrant expiry. Certainly, when we worked at reforming the youth justice system, we believed that the higher-risk people were the ones that the corrections system really need to apply their minds to and have greater support of and supervision of in the community in order to ease them into the community. But there is this notion of holding them right to the bitter end of their sentences, opening the back door of the prison, and saying, "Okay, you're on your own,'' or. even worse, alerting the police that someone they think is violent or dangerous is about to be released and having the police arrest the person as they're leaving the prison and bring them forward on an 810 application, which leads to essentially a peace bond being applied. The peace bond essentially imposes a bunch of conditions which can be very onerous.
The breach of those conditions can lead to a four-year term in custody. So simple breaches, like breaching a curfew or having a drink, can have very serious consequences on someone who has already ostensibly served their time. They've done their time. They have fully complied with the sentence that was imposed by the court, and CSC's failure to prepare them for the community will lead to this undermining and further deprivation of liberties, which is a really serious problem.
My last point is that when people have been in the community and have discharged their sentences and there has been a crime-free period, the fact that there has been a criminal conviction should no longer be a basis upon which to discriminate against these people.
It has been that once a pardon or a record suspension has been applied, people receive protections under human rights legislation, which is great. The difficulty is that the costs of getting a pardon — the conditions and the restraints on some people being able to apply for these record suspensions and pardons — are such that you get a very uneven protection of human rights based on who can afford the $631, who has not had three indictables as opposed to two indictables.
There's a really strong lack of human rights protections in the unevenness with which the Criminal Records Act provisions kick in, so some of us are very keen that it should no longer be an application process but it should work as an application of law that as soon as a requisite crime-free period has passed, automatically those spent records and the people who have them should be given human rights protection to no longer be discriminated against on the basis of those criminal records.
That's really the basis of the comments that I wanted to make, and I thank you very much.
The Chair: Thank you very much, Catherine.
Ms. Holland?
Margaret Holland, Ontario Co-ordinator, Visitor Resources Centre, Canadian Families and Corrections Network: I come from a very different focus. I work for the Canadian Families and Corrections Network, so I'm coming from the position of family members who are visiting in the institutions and the experiences that they have.
Canadian Families and Corrections Network is a non-profit. It focuses on building stronger and safer communities by assisting families affected by criminal behaviour, incarceration and community reintegration. We provide confidential support to families through a toll-free line where we hear a lot of the concerns of families that have somebody inside.
We also represent families at a variety of tables. The CFCN has consulted on the Victims' Bills of Rights, the Criminal Code Act, the ion scanner, the electric monitoring affecting families, and we've participated in curtained criminal justice reviews.
The Office of the Criminal Investigator asked us to consult on how families receive information from inmates' deaths and critical incidents, resulting in an important report from the department in August 2016 entitled "In the Dark: An Investigation of Death in Custody Information Sharing and Disclosure Practices in Federal Corrections."
We rely on our funding from existing and new partnerships to serve families who need support. Through the funding of the Correctional Service Canada and the Mennonite Foundation, we have been able to establish five visiting resource centres inside the correctional institutions, where myself or a volunteer go into the visiting area to visit with the family members during their visits. We're able to provide them with referrals perhaps to community organizations, to give them information, some education perhaps, some interventions in terms of situations that they're in, and discuss in confidence the difficulties that they may come up with.
Families are looking for information and guidance concerning parole hearings and how we can best support that family member, and they do ensure that they don't get struggles. They struggle with security issues and procedures with the correctional system.
On Saturday, I was talking to a family member who was looking for information around: "Can I attend the parole hearing? What can I take to the parole hearing? What is the parole hearing like?'' They're totally at a loss in terms of that kind of information: "If I write a letter, where will it go? What kinds of things can I do to help my family member when he's coming out into the community so that I can support his release? Where is the accountability?''
We provide games and activities to assist the families in maintaining their relationships. Families can talk for so long and then they need things to do, and often these games and activities can create further interaction.
Children are a very significant focus of this initiative, and the policy is that a visit with a child is a visit for a child. The focus is on ensuring that the child is having a family-focused visit.
On one occasion a child said to me, "Having a father in jail is really hard.'' I asked, "What's hard about it?'' She said, "Talking to my friends.'' I said, "Well, what do you tell your friends?'' "Oh, it's okay; I just tell them he's overseas.'' You may teach your children not to lie, and this child is learning that lying is the best way in her life situation. So Telling the Children is a pamphlet that we've created that I'll chat about further later.
Research has shown that family is a strong piece of successful reintegration. By assisting families, children, and in building a healthy connections, we are supporting safer communities.
Families need our help in the communities, and we facilitate a family support group within the Toronto area. We've been strong in terms of supporting the mom's group that runs in the Ottawa area. We have a database on our web page that tells people of the support groups that we learn of across Canada, and we also have a booklet that we've created on how to set up a support group.
Through the Correctional Service Canada and the Mennonite Central Committee in the Maritimes, CFCN has provided a family liaison in the Nova Institution, which supports the mother-child program, parenting classes and addressing women's reintegration issues.
The partnership with the Mennonite Central Committee, Maritimes Division, has enabled us to mail packages to CFCN resources across the Atlantic in rural areas for non-profits and organizations to help the working capacity with families.
Through our partnership with Movember, in the last year we were able to expand a training module for incarcerated dads. Using the resource from the previous funding of Dad Central, we were able to expand our knowledge by connecting with several institutions, consulting with incarcerated dads, their fathers and supporting organizations on what incarcerated dads need.
The seven-month contract offered us an opportunity to focus on parenting strength, the introspection of the fathers, and a chance to increase the parent-child contact and strengthen the bonds for reintegration. We are very excited that Movember has recently provided us with a two-year contract to bring parenting training into the institutions for incarcerated fathers.
We have a partnership with Sesame Street, and they have provided us with a DVD video called "Little Children, Big Challenges: Incarceration,'' a toolkit. When we got this, we were inspired to seek various funding for strengthening the families through the community foundation, which provided for six events across Canada where we educated family members and community organizations on what it is to have a family visiting inside and connected with crime.
One of the experiences that we had through this was that there was a mother who was weeping in the aisles of a library, and we discovered through conversation that her husband was going to trial and was likely to be incarcerated. That experience provided us an opportunity to connect with this woman, provide her support going to the trial, and also to connect her with other services in the area.
One of the comments that I got at some of the events that I was able to attend was, "I had no idea that families were affected by crime.'' They're not even seen as part of the scenario.
We have several written resources that we provide to families, and I've brought them for viewing. The initial one is Time Together, which is a survival guide for families. It talks about what it is like to walk into the institution. It gives families a lot of information around security. It has some notes from other family members in it that are useful. It's a really good resource in terms of backup information.
I don't know if any of you are familiar with Shannon Moroney, but she, in her experience, provided us with a booklet on what she would like to do, how her life was reshaped by crime. It is another useful book for family members.
We also are very interested in reintegration, and it's an area that I think needs a lot of work. I've heard a lot of talk about it. We have two things that we provide to families on that, both covering the seven dynamic factors of what it is for family members and also for the offenders. I encourage the offenders to write down the kinds of things that they want to have at the end of a parole hearing and to also share with their families those goals and objectives so they can be better prepared for reintegration, strengthening that relationship.
I did mention Telling the Children, and we have it in five different languages. It basically is a support and a knowledge base on how to talk to your children about the incarceration so that the children won't get some of the stories. It's a very difficult discussion. I say to families, "This is a suggestion box. You know what you need to do in your family,'' but it's better to have something that's useful.
From a mental health project that we did, we were able to create a booklet called Coping Over Time. Many of the excerpts in it are from family members who have talked of what it is to have walked in and out of the institution and the challenges they have. And we've also created a reintegration book for women called The New Times.
So those are the resources.
We have two books about "Jeffrey.'' One is he's going in; one is he's coming out. The going in is: "My daddy is a good daddy; he made a big mistake; he's having a time-out.'' It talks about the security issues that the children are walking through.
The second one is: "Daddy's coming out.'' It basically focuses on the parole hearing, what it is like for family members to go through the parole hearing, that it's not sort of daddy's out, so he's coming home, and everything will be back like it was before.
In order to maintain the connections of fathers, we've created an envelope of 24 activity sheets that fathers can use and mail back and forth to their children or use in the visiting area so that they can help build on the relationship. They are very age-appropriate in terms of the growing of the child. So it gives them another resource.
Thank you very much for the opportunity to share about CFCN. I think it's a very valuable program and a piece that we really need to focus on.
The Chair: Thank you very much. Our clerk will certainly take all of your pamphlets and books, and we'll take them cross the country.
How many families do you think you've affected?
Ms. Holland: Unfortunately, I didn't bring the stats. I realized too late.
The Chair: Do you have an idea?
Ms. Holland: Probably over a thousand and more a year.
The Chair: A thousand?
Ms. Holland: Yes. One, two, maybe three thousand. We have a toll-free line, and then I meet up with a good thousand or more in the visiting areas over the year.
The Chair: And the idea came from here, from Kingston?
Ms. Holland: We're 25 years old. I've been doing this now for 17 years.
The Chair: Thank you.
Lawrence, did you have a few words you would like to say before we get questions?
Mr. DaSilva: Yes. I just really wanted to offer again, like I said the first time, my file, which is very extensive.
I listened to the previous speaker before we came up here, and I would encourage your questions to revolve around those warrants and other things that you've already asked so that we can catch up and continue.
But, first, I would like to give acknowledgement to those who have passed away and those that we are about to speak of: Ashley Smith, Laurence Stocking, Eddie Snowshoe, and Matthew Hines. The most relevant one that is my case right now, we are still waiting for the news of the death that happened in custody, segregation for 108 days, approximately.
First of all, I would like to point some acknowledgement to section 10 of the CCRA which gives that peace officer status and which is authorized by the commissioner. There is a complete disconnect with that acknowledgement of there being the peace officer status and then it actualizing within a legal format, like we spoke of the first time when I met this committee. It continues to allow violations of the law to be on a massive level, especially with problematic inmates such as myself, Ashley Smith, Laurence Stocking, Eddie Snowshoe and Mr. Hines. These are issues of sometimes confrontational inmates who suffer from mental illnesses and are not being treated. They are in that aggressive state already — that's how they deal with each other; that's how they're trying to cope. It is then just misunderstood by staff and these incidents take place.
If we turn to these incidents, I challenge everybody in the room to say, "Did CSC ever openly speak about Ashley Smith, Laurence Stocking, Eddie Snowshoe or Mr. Hines, or did they say there was no comment?'' There is a disconnect between CSC's mission statement and what it's actualizing. These things are being held back.
When I say they're being held back, I refer to the findings of the Correctional Investigator that just came out concerning Mr. Hines. I won't go over all of them, but I'll go over the ones that I believe are most important when we're talking about openness, effectiveness, integrity and accountability.
When we look at the report findings, number 1 states:
Multiple uses of unnecessary inappropriate force contributing to ensuing medical emergencies and death.
So when we speak of the police officer's status and there being the disconnect between a legal format of how this is supposed to happen and is actualized, it's not happening.
We see number 2:
Lack of sufficient controls and accountability for the use of inflammatory agents in federal penitentiaries.
When I came before the committee the first time, I spoke of there being a lot of uses of force against myself. I had experienced these "instruments'' intimately on more than one occasion, which brings disturbing trends to there being no way of monitoring how CSC is using these weapons.
If I was to use this weapon in the commission of a crime in the free world, this would be an assault with a weapon, but it's not, nor is it investigated on the inside because there is no control or statistic that can produce the quantity of which is being discharged from these weapons — weapons, okay?
Moving on to number 3:
The need for a separate and distinct intervention and management model to assist front-line staff in recognizing, responding and addressing medical and/or mental health emergencies.
When you look at the format of what happened to Mr. Hines, this was a 30-second encounter where three direct orders were given and then this happened.
When we talk about these being peace officers, we hopefully are citizens, like-minded individuals, saying these people are meant to protect us, so when these incidents are happening, these individuals should be the ones who are supposed to be trained and ready to deal with these incidents that happen as they happen because they're front-line staff. And if they're not happening, then we're asking ourselves, why up until now is this not in place and is still being dragged out? Because the use of force can happen tomorrow. It could have happened already today and something bad could have resulted directly from the police using that kind of force, in some cases resulting in death.
There are questions of quality, about timeliness and adequacy of health care response. When these events are happening, usually if there is a code pushed, the alarm sounds on a range where there is an incident. My experience is that healthcare staff immediately hear the alarm and start preparing gloves and a kit to get down to that area, where there is supposed to be video footage running.
When we speak of the video footage and the retention time, it is appalling because the commissioner's directive specifically allows only four days of retention time for those videos. It is literally impossible for us as inmates when these things happen to us, the use of force, to think, "Hey, we should be able to report this; let me access information.''
My file continues to show, like I continue to offer, that the number of requests to have this video footage given back to us. It was never given and neither were the documents. They were always redacted to a point of there being no transparency. Like, you're blank.
Another major issue is the inaccurate, inadequate sharing of information with the designated family members following an in-custody death. When we're talking about someone's loved one being in prison, this is the time when accountability and everything else needs to effectively come into play, because there is someone's loved one who has been sent to prison to protect society, and not to be murdered in prison — not an accident, not an incident that resulted in death. No, not to be murdered in prison. The dismantlement of the warden's negotiator is the direct result of this.
Moving on, CSC's own investigation found that there were 21 violations. It says:
Areas of Non-Compliance
The Board of Investigation report identifies 21 areas of policy non-compliance and/or gaps in policy. The more serious policy violations identified by the Board include:
1. Failure to continuously assess and reassess security interventions and staff response.
2. Failure to protect a person handcuffed from behind from injury.
3. Failure of any one responding staff member to assume a leadership role.
4. "Inappropriate'' uses of inflammatory spray.
5. Failure to adequately control and account for inflammatory agents.
6. Failure to maintain and control the integrity of a potential crime scene.
7. Failure to provide emergency healthcare.
With those things being said, I'm just going to close with this. I was also affected by detention, so I encourage your questions. I also am affected right now, as we speak. Tomorrow I will be closing the acceptance on the only best deal I could take from what CSC has forced onto me, which is the closure of an 810, which is the agreement to sign on to a year to be monitored. I've been monitored since I've been out, without charge. The effects of this and not being prepared have been extremely hard, and had I not had the assistance and endurance to stand this far, there would have been an immediate relapse because there is a disconnect between preparing these men for the street.
With that being said, I thank you for your time.
The Chair: Thank you very much.
Senator Pate?
Senator Pate: I want to start first with Catherine. You mentioned stories in the news.
Another story in the news this last week is the commencement finally of the inquest into the death of Kinew James, an indigenous woman with significant mental health issues who died in the Regional Psychiatric Centre and whose death appears to have been caused by a diabetes-induced heart attack and the heart condition in diabetes. Both were assessed as something that could be managed in the community had she had access to appropriate recreation and diet. So the fact that she spent so much time in segregation is one of the issues being looked at.
I just want to clarify something. You mentioned that, in the budget, monies have been allocated for mental health services in prisons, but you also said that mental health services need to be in the community.
Dr. Livesley is an expert who has been hired by corrections to train staff. He's one of what Mr. Ellacott would have referred to as non-CSC-employed, in terms of doing their assessments. He has essentially said that the best therapeutic interventions need to be in the community, and only if someone can't be released to the community for some reason, whether it's sentence, should they have access then to community-based services.
I'm wondering if you could comment on that because some are interpreting the new resources as meaning we should increase mental health services in the prisons. Others — and I think you know my bias — are saying that that will actually increase the number of people who will likely be criminalized and incarcerated, because increasingly the only place to have mental health services will to be perceived to be in prison, and we've already seen that trajectory.
Ms. Latimer: I think you're absolutely right. The provision of healthcare services both inside the prison and in the community needs really to be rethought.
There's no question that the international human rights bodies argue or state that those responsible for healthcare should be the ministries and the departments that are responsible for healthcare and not the corrections authorities.
Kinew James is a very tragic example of what you see often, which is that security interests trump medical conditions. The management of chronic diseases like diabetes in the prisons is terrible. I was talking to one fellow, and he was saying they just let his blood sugar run really high. They don't care that there may be complications down the road; this is the way you manage it over the short term.
So I really think that in order to have that continuity of care it's very important that the healthcare services be the same quality and likely the delivery mechanism as people in the community have.
I agree with you absolutely that mental health provision and physical healthcare should be a community standard. Often the security lens is just too strong in the prisons to really deal well with someone with a serious medical issue. I think they can put Band-Aids on it, but, if it's serious, it's not the quality that you would want your loved one to have.
Senator Pate: Supplementary to that, section 29 of the CCRA allows that to happen now, but I would say it is not used; if it is used, I'm not familiar with many instances.
Are either you or Lawrence or Margaret familiar with examples of where that kind of treatment option has been put in place so that people with mental health issues or even addiction issues have been able to go into the community under section 29 type transfers?
Mr. DaSilva: Yes, section 29 is a format to do so, but in the 19 years that I spent in federal prison, I did not see anywhere close to what should have been taking place, even on a compassionate basis. So, with these people's families dying, and then still be denied access to temporary releases for those vital reasons, it's not actualized. It did not happen; there is no statistic base for it.
It's demographic if it does happen, meaning it will happen only at the minimum level, and I don't think barely even at the medium levels because the temporary releases in those ways have been cut and taken away.
Senator Pate: So section 29 can be used for people who are maximum security; it doesn't have to be minimum security.
Today the committee visited Brockville, where there are units for men. Mostly they are serving provincial sentences. There has long been an interest in developing a unit for women.
In terms of federally sentenced men, would it be your opinion that pursuing something like that through the Royal Ottawa Hospital services would be preferable in using section 29 to what's currently happening?
Mr. DaSilva: Most definitely, and it would be the Canadian thing to do under the protection of the Charter. Like I said in my first encounter with you and the rest of the committee, there has to be a disconnect between Health Canada and CSC. What we're learning, even from what I just read to you, is that there was this disconnect between them.
On a compassionate level, as Canadian citizens you are supposed to be protected by the Charter in the sense that you should at least be assumed to be considered in that way.
And, yes, doing so would be really effective because it would save these men and women from falling deeper into a state of mental illness in which people see but are doing nothing.
Senator Hartling: I have a couple of questions.
I'm thinking about Matthew Hines. I heard that news just before I came back to Ottawa. Can you, for the record, tell us what happened and what could have prevented that from happening?
Ms. Latimer: I'll start on what I understood happened.
Ms. Latimer: I think Lawrence also has some views on that and how it could have been prevented.
What we understand is that Matthew Hines had some mental health issues. He was asked to return to his cell, and he didn't return to his cell, and they brought out pepper spray. He was pepper sprayed. They brought out use of force, and he was knocked to the ground.
Matthew Hines was a big man. He was 330 pounds. They continued to pepper spray him. I think he was pepper sprayed in the face maybe five times, and he hurt his head.
Apparently they were marching him backwards with his hands behind his back, so it was difficult for him to retain his balance. When they took him down to the decontamination shower, he fell backward and hit his head.
Essentially, from my perspective, they had him under control long before they stopped with the use of force. To me, it was a very unfortunate incident, and I think there probably are lots of ways to prevent something like that.
The incidence or the use of pepper spray has really gone up because correctional officers can now carry it on their belts. They used to have to go to a central part to get the pepper spray.
Do you want to talk about that?
Mr. DaSilva: It's called "calling for the spray.'' What would happen is that if there was an incident, there was a window behind you and there would be a hole in the window. They could run up to the window, bang on the control, and call for the spray. Then they would either pass out the pepper spray in the can or they would use the tear gas from the window slot if the incident was starting to get out of control.
But there is an obvious disconnect between the reports that keep coming out and how they are being delivered. I said to many people at the committee when I spoke at the round table, to Ms. Latimer after I met the committee the first time, the way that Mr. Hines was handcuffed — just to stand up for just a second, so you understand the use of force.
From the time you get sprayed in your face, you're not going to continue to look this way. It's just what happens. So, if even Mr. Hines was knocked on the floor or whether he was sprayed first and then knocked to the floor, 11 men fell on Mr. Hines and started to grab his limbs.
Once he was handcuffed to the back, repeated blows — they're called "distraction techniques.'' They've been used on me many times. It's when a person will stand to the side of Mr. Hines while the other individuals lay on him, and the person issuing the distracting technique or blows, will start to hit the head, face, with closed hand, open hand, whatever, whilst screaming what you should not be doing: "Stop resisting.''
So if the person is not resisting the first time — the attention is to the training. The person was meant to hit, and that's what happened. He was hit many times.
Now, when he was handcuffed, he was picked up and marched down the hallway.
Now, there are conflicts between how he was marched, whether it be in the front or in the back. Usually when you're going down the long hallway, your back would be towards the front direction of where you would be walking, so you would be moonwalking with your handcuffs like this.
Now, I give you this. When you stand in this position, you're being held with one arm under and the guard holding the back of your neck. Now, we're not talking gently. We're talking grabbing the back of your neck. Now, what's going to happen is they're not going to walk you this way; they're going to start to walk you this way so, if you resist, they lift your arm, which does this and puts your head down.
When Mr. Hines went to the shower, he was tossed in, because Mr. Hines could not fall backwards with his hands behind. Mr. Hines was tossed into the shower, which is why it was so important that the coroner's inquest be very transparent, which didn't happen until I believe a month and a half after because of the CSC's red tape and bureaucracy and its restriction on that.
We're talking about a citizen here. Right?
It's just so important that while you're meeting these men who have had force used against them and stuff like that, that you ask them the questions: How did it happen? Where did it happen?
I encourage this committee to go, through access to information — I give you the authority if you can actualize on it — to June 17, 2011, and I want you to see the real use of force. Seventeen shots of outside gas were used in a small area, I'd say from where Mr. Munson is to here, and each shot held three canisters of gas, steel pucks, that were fired in my direction because of non-compliance, which is, again, excessive force, but I'm moving on.
Senator Hartling: Thank you, Lawrence. Where did that happen? That was in New Brunswick, wasn't it?
Mr. DaSilva: Yes, that happened in New Brunswick. Yes, ma'am, I believe it was Dorchester.
Senator Hartling: From what I understood, his brother was pretty shocked. But the crime he committed wasn't a huge —
Mr. DaSilva: Ma'am, there is no place even for the question of what crime he committed.
Senator Hartling: No, no. I understand.
Mr. DaSilva: No, I'm just being transparent with you.
Senator Hartling: Yes.
Mr. DaSilva: There is no question about what crime an individual committed when he is refusing to comply with a direct order from a peace officer. There must always be a level of calm between the officer and the individual, and that's where it came from. So we're talking of an event that happened like this:
"Go back to your cell.''
"No.''
"No?''
"No.''
"Go back to your cell right now.''
"No.''
"No? Go back to your cell. Force is going to be used against you right now,'' and then, boom. "No?''
"Okay, get the team; get them ready.''
That's how fast this is happening because of the warden — the loss of the warden's negotiator.
The warden's negotiator was taken away when the Conservative government was first elected. It was immediately dismantled. CSC's strategy for it was clear. CSC wanted danger pay. CSC got that danger pay with the government shelling out those vests that they had to wear, mandatory now.
And you don't see, but I see: Those guards don't wear those vests. They don't want to wear those vests. Those vests are hot. The only time they're going to wear those vests is when they're around an inmate like me who was in the SHU, who they were provoking all of the time, or in the max where they were provoking all the time, both with unprofessional conduct and no adjudication for it.
So, when you talk about the levels of these incidents and how they arise, the lack of the training and compliance with the law drives those issues.
Senator Hartling: Thank you very much.
The Chair: I was just noting that Public Safety Minister Ralph Goodale said a year ago that there has to be an investigation. It was August 2015, more than a year ago. How long does it take to get answers, I wonder?
Mr. DaSilva: Can I just ask you this question?
The Chair: Yes.
Mr. DaSilva: You say that, and what if this was your son? When you read about the 21 violations that CSC found itself, I ask you, just as a citizen, who you want me to be? You don't want me to be a criminal any more, so I come to be rehabilitated, trying to ask you as a citizen in this new rebirth of my life: How is it possible that 21 violations are present in this and given through CSC's investigation, yet not one of these guards are charged? Not one of them is charged.
The same corruptive subculture that I talked about the first time here, with "La cosa correctional nostra,'' has come back to turn itself on.
The Chair: I have two questions for Ms. Holland.
How are family members of federally sentenced persons treated by Correctional Service Canada when they visit loved ones in prison?
Ms. Holland: I have huge admiration and respect for the person who can come in on a regular basis and visit because the process that they go through in terms of walking into the institution is intimidating, frequently.
Some of it from the correctional perspective is seen as necessary because there have been incidents where families have brought in contraband, but every family is swept with the same brush.
Frequently they're not given answers to questions. They can go through threat-risk assessments and not be given the paperwork after. They don't know the procedures of how to advocate for themselves. And it's very humiliating and demeaning, so it's a very difficult process to go through on a regular basis.
The intensity has increased in terms of what families are going through, and it's really influenced the number of families that actually come down to visit over the year.
The Chair: So, with CSC, have you done anything in terms of outreach? Do they have a program to mitigate these negative consequences we're talking about?
Ms. Holland: Not that I'm aware of. Many of our toll-free calls may address things like: I don't know what to do now because I've come up on the ion scanner or on the dog search, and I don't do drugs and would never do drugs; I haven't had anything to do with drugs, and yet I've been put on a closed visit; or I can't have a visit for the next three months; or this is a routine that I have to go through, and I may be on restricted visits.
The automatic is that you're guilty, so that's the message. These are foolproof ways of identifying. They say "in contact''; it's not "having.'' We can be in contact by handling money. Often guards have said, "Don't put your ID down on the counter because I don't know what else has been there. I can't scan your ID if it's on the counter.'' The family gets the message that they're guilty and they're going to have certain restrictions on their visits due to that.
The Chair: Thank you very much.
Senator McPhedran: This may be too specific a question, but it does follow directly on Senator Munson's question and your answer just now.
We heard today that the trailers that had been used for some period of time for family and conjugal visits have been closed and are not used currently at Joyceville. There have been requests to make them available and they are not being made available to those who are there for assessment. However, the nature of the assessment process seems to have changed so that now there are prisoners resident for almost a year who are not being allowed these visits.
An example was given by an individual prisoner of the fact that therefore the only visits that are possible, even after families travel a very long way, are behind glass, no touching allowed.
I wonder if you have further specific information on this and if you have any recommendations for us.
Ms. Holland: Private family visits are extremely important for family connection. I don't know exactly what they're doing at Joyceville. I understood there was a range at Joyceville where there were some open visits, that they weren't behind glass.
It falls into suit that there are no private family visits there, from what I've heard, in terms of the transitions that have taken place as far as Joyceville becoming an assessment unit, and then some ranges are actually being used now for residency.
Senator Pate: You are correct. I think that's what we heard, too, that there are some open visits for that one unit but no PFVs. Is that your understanding, too?
Ms. Holland: Yes.
Senator Pate: I think that's what you were asking.
The Chair: Senator Pate?
Senator Pate: I want to ask you some things about the ion scanner, but I will come back to those.
For Catherine and Lawrence, you both talked about the issue of correctional officers as peace officers. Louise Arbour, 21 years ago, made recommendations about the need for there to be sanctions of correctional officers.
A number of us, myself included, have actually urged we not go down that path, in part because of how much time and energy and money would be spent with fighting attempts to charge. Maybe it's time to rethink that.
The other recommendation that Louise Arbour made that went hand in hand with that is where Correctional Service Canada treatment of prisoners amounts to correctional interference with a lawful sentence, either by excessive use of force, by use of segregation, denial of access to programs, denial of access to family members, that in fact there should be a remedy, an ability to go back to court and have that sentence revisited. Would either of you like to comment or all three of you like to comment on that?
Ms. Latimer: My view is that peace officers have to have a certain standard of professionalism. One of the things that has surprised me is the extent to which the accounts of prisoners that I have heard indicate that peace officers are falling far below what you would expect.
I don't know if you're going to the regional treatment centre during your visit to Millhaven. Some of the men that I spoke to there clearly indicated that if they were feeling suicidal and they mentioned it to one of the guards, the guards would say, "Go ahead and commit suicide; it'll be one less person for us to look after.'' Counselling suicide is a criminal offence; it's not on.
Other things: interference with the mail, things like that, they shouldn't do.
The one that I find most disturbing, there is a provision in the Criminal Code that says that they cannot use misinformation in their duties. You often find — I don't know if it's often, but it's certainly some of the criminal cases that I've looked at — is that information is inaccurate and incomplete, and it is not worthy of a peace officer's professional standard.
They either need to pull their socks up and become peace officers, or they should lose the capability of defining who is a peace officer and who isn't, and turn it over to a policing authority and say let them train and certify them.
Do you really think that if a police officer did what happened to Matthew Hines there wouldn't be some sort of investigation by an external police body? These guys are investigating themselves, and they're coming up with answers like, "We need more training.''
You need more training? Yes, but I think it's more than that.
It creates an atmosphere, in my mind, which is not conducive to rehabilitation because it shows you the tough guy wins: You're going to apply force and you're going to win. And that's not the modus operandi that you want.
I'm not saying all correctional officers are like that, but I think you need to weed out the ones that would be inclined to abuse force. Maybe Lawrence can comment on it, but I wouldn't be surprised if it was the same ones who are abusing force.
Mr. DaSilva: The Arbour report was magical in so many ways. It gave society an opening to what prisoners were being subjected to for a long time, and women prisoners for all that.
Now, I have P4W rocks still on my floor, beside a mount for these women, beside the Arbour report. The Arbour report and findings suggests a remedy to rectify those situations. It is such a beautiful thing in the sense that Madam Arbour actually gave a thoughtful opinion and consideration to the effects on these individuals, and not just women, but individuals who are being treated this way.
If you attentively look at the Arbour report, you'll see that the majority of women filed lawsuits as well as habeas corpus. When I speak of the habeas corpus, I speak of the protection of the Charter. These women won habeas corpus after the effects of detention, after the riot in the Arbour report, and the way they were treated was still a disconnect inside of the court, giving a judgment but remitting it back to the system to take further actions against the women who had rioted in the first place.
Senator Pate: Well, in fact, it was found not to be a riot, even by corrections.
Mr. DaSilva: It was not. But in the term "riot,'' I only speak for the record of what I read. We both know that it was not that and it was nowhere close to that.
The state of the mind of the women afterwards was you could sit there and talk to them. They're human beings. The Arbour report disclosed what I said, "La cosa correctional nostra.'' It's a corruptive subculture that she clearly acknowledged in her report. That corruptive subculture continues to grow stronger and stronger because of the lack of attention to the Arbour report, Justice Behind the Walls, and the findings therein.
Senator Pate: Right.
One of the things Louise Arbour said — and the previous witness, Mr. Ellacott, talked about — was the fact that it's a complex system. Louise Arbour said that there are rules everywhere that make it look complex but nowhere was there the rule of law, and if the rule of law was followed, that would make it very simple.
We've heard conflicting evidence. When you were before us previously, we had just heard from Correctional Service Canada and we had a version, and then we had a version from yourself and Alia Pierini and others. Many would say, and certainly in a law court the decision would be, that the truth must be somewhere in the middle.
One of the questions I often ask and encourage law students to think about or lawyers is: Who benefits from this perspective you're being asked to accept? I don't know if any of you want to comment on that.
I would also like to ask in particular about families. I've heard many stories over the years of families that don't have enough money, but they're doing things like dry-cleaning all the clothes because of fear of the ion scanner going off, of not being given the risk-threat assessment. Maybe you can explain the two tests that are supposed to be done, then a risk-threat assessment — and it's still not supposed to end the possibility of visits.
And I would like any comments you have on how the freedom of a family to associate with their loved one is supported or honoured by the visits process.
Ms. Holland: People who are in CSC have said to me: "CSC has this policy, but they don't walk by it. They don't believe it.'' I think they get very jaded by the process of what goes on.
When a family member comes into the institution, they have to go through the ion scanner. If they come up on the ion scanner with a rating higher than what is acceptable, then they don't really get to go any further. They are supposed to be given, by the standards of CSC, a second opportunity. Sometimes they are and sometimes they aren't. It can be arbitrary.
If they are given a second one and it comes up again, then they would go through a threat-risk assessment. Two or three guards at a time talk to you, one of them usually being the correctional officer, so the four-stripe, who ask you intimidating questions in a very forceful way.
One of my volunteers disclosed to me that she had had to take Percocet that morning. She said she washed her hands thoroughly before she went in. The dog actually bumped her hand, didn't sniff it but bumped it. The guard's comment to her was:
"So what party did you go to last night?''
She said, "I haven't been at a party.''
"Yes, you have.''
There's no truth piece to it in terms of "I haven't been at a party,'' which was the reality. She was eventually let in because she said exactly what had happened, but that is not always the case. Frequently it's not the case.
If they've travelled a long distance, they will maybe be put in a closed visit or they may not get their visit at all. That's totally up to the correctional officers.
If they were to go through the ion scanner and then end up having a dog sit on them, they would again go through the threat-risk assessment and possibly have their visit restricted or taken away.
I had a family member who called me this week. She was extremely upset. She's in a professional position. She's meeting with an inmate. She is very concerned about what it's going to do for her professional standing if it gets out. She came up. She has absolutely no idea why she came up or what she did wrong. She was told at the time that she could go in and then called a week later and told she couldn't come back. She's just at a loss as to why that would happen, that it was going through a review.
The review can be a week later or two weeks later. They're supposed to get a letter. They sometimes do and sometimes don't, so there's an inconsistency. It's a very difficult process and routine for families to go through.
I really have a huge amount of respect for those who stick it out and do it because I think they're very important to surviving the incarceration and the success of reintegration.
Senator Pate: Thank you.
The Chair: Final comments?
We're going to go to the town hall portion of our hearing because members of the public would like to say a few words.
Ms. Latimer: I would like to say that this work of the committee is extremely important, and I'm so glad that you're taking this opportunity to visit prisoners. If you're looking for human rights abuses, you really need to look at some of the what are defined as "problematic'' prisoners. I hope that the ones that want to meet with you get the opportunity to do so.
Mr. DaSilva: I would just like to say thank you again for having all of us here and just having this discussion and to continue to have this discussion while we all go home and go on about our lives. Wherever they take us, I hope they take us back to each other so we can continue, because those who are left behind right now, they need voices and they need to be heard. Most importantly, their files and evidence need to be searched through.
I encourage you to continue to meet with inmates to find out what to look for because CSC is not going to tell you what to look for. Thank you.
Ms. Holland: I just want to make a couple of comments.
There has been a lot of focus on the violence of the institution, and it ripples right through to the family members because the offenders will sometimes call their family members.
I had a call this week where I spent a good half hour with a crying mother. She's sure her son is going to be killed inside the institution because he's calling her, panicky and upset. It ripples into our community. When it ripples into a mother, it ripples into the rest of that family and has a strong effect sociologically, so I think it's something to consider.
The health piece also ripples. Another call I had this week was for a family member whose son had hip surgery and whether he was really being cared for and being given the right pain killers. These are the kinds of things that also move out into the families in terms of their functioning and in the larger world.
Thank you, as well, for this inquest.
The Chair: Thank you very much.
As I mentioned before, we hope to have observations out in a timely manner. Normally, Senate reports take a while. Sometimes government listens to them and sometimes they don't. But it's such a timely issue that we will have observations in the fall and then we'll continue our study.
We plan to go to Atlantic Canada. We plan to go west. We plan to go north, and we hope to travel internationally to look at best practices that are happening in Scotland and Norway.
Your testimony, again Lawrence, is very compelling.
Catherine and Margaret, thank you for being here.
I'll call those in the public who showed interest in appearing before committee to make a statement. The night is getting late, but it's important to hear from those in the public, of course.
Julie Langan?
Julie Langan, as an individual: Yes.
The Chair: Appearing as an individual, you're from Kingston.
And is it Katheryn —
Katherine Wabegijig, as an individual: Wabegijig.
The Chair: You probably heard that we were in Brockville this morning around 8:00, and we have been in the Kingston area throughout the day. This is our hearing on the human rights of prisoners in the Canadian correctional system. Welcome to our committee.
Who wishes start?
Ms. Wabegijig: I was hesitating to actually even come here, but I met with Catherine Latimer earlier today.
My husband is actually in Millhaven Institution. He's been incarcerated since 2006 and came to Kingston Penitentiary in about 2009, I believe, through the different handling units, the assessment unit in Bath and then there.
I have been visiting him since 2009, so I have been travelling quite a bit. I lived here for a summer and visited quite frequently, every week for about three times a week.
I just moved back on May 1, and we're preparing for his second detention hearing. A lot of what Margaret Holland and Catherine Latimer have been saying about the detention hearing has really struck is chord with me, obviously.
So we're preparing for his second detention hearing, and what I'd like to say, my number one thing, is that when you go in there to ask the inmates, the offenders, how many times they actually get to meet with their parole officers, just on a regular basis — when preparing for a detention hearing, obviously they are trying to set up resources in the community that the inmates are asking to be released to, and if they don't have support — my husband has my full support, and I don't know a lot. I don't have a lot of resources, either. I've had to search for them and garner them all by myself, and it's a lot of work, really.
I've moved back from my home community of Sault Ste. Marie to be here for him and to attend his hearing in July or June, and we're not sure when it's going to be now. Like I said, the last one was two years ago. Even not knowing when that's going to be puts a hardship, I think, on families.
The biggest point, like I said, is the parole officers and their involvement in the community release plans and actually meeting with the offenders. He has only met with her once a month, and you'd think it would step up with the detention hearing being pretty close. He just recently found out that it would be in June instead of July, so that really puts the plans of everybody who wanted to attend in kind of an upheaval, mine as well, and his elder, who is wanting to be there for him.
In reading the CSC responsibilities of a parole officer to regularly meet and have regular contact, and in speaking with all of those institutional workers that are supposed to be there for the prisoners, some of them really are and some of them really care, but they don't meet with them as well. So his elder actually had to approach the parole officer.
One of the guards actually offered to write a support letter for my husband, which is not something that usually happens. Presenting it to the parole officer, the parole officer said that it was too late; she had already written the report. Those reports say that the CSC has to be able to update the reports upon new findings or new things being brought to them. So some of those things I'd really like attention brought to.
Then there is the fact that they're only basing their assessments on all of the paperwork that has been in their file and psychological assessments that might have been from 10 years previous, which, in this case, has been reviewed and they find it to be kind of the same, and then they just go along with the paperwork.
I'd also like to express my concern for that 810 application process, which I didn't ever hear about until today. I think that's really disheartening, especially being that we think that he's going to be detained until his warrant expiry. He is an alcoholic, and he doesn't get enough treatment in there, so being put out there on warrant expiry and left to his own devices — with my support, of course — really a hard road.
Speaking to the Gladue report, I am Native. I'm Ojibwe. My husband is as well. There has not been anything brought to my husband about the Gladue report or that he could actually get one done for himself. I've looked into it somewhat, and it seems to be a very hard process to go about getting for somebody. It's not very accessible.
Also, to speak to your questions about the visiting process, I was actually picked up on an ion scanner in 2011, and that directly affected our applications for PFVs, which we still have not had. This has been since 2009, since I've been visiting him. That ion scanner is actually a point that's brought up to him every single time that we apply for a PFV. It was LSD, and there is absolutely no way that I would have that.
So it does create a fear for family members to go in. Talking to other families, other wives, it's constant.
I was travelling from up north at that point, so I wasn't coming down. It affected our visiting because we were put on closed visits, so I didn't come down until I could have open visits again with him. That's really affecting things. I even hear from guards that it's not a good system.
Senator Hartling: Not reliable?
Ms. Wabegijig: Not reliable. A guard actually doesn't do it because he does not believe in it, and that's crazy to me.
The Chair: Thank you very much. There will be many questions, I think, on this important testimony.
Julie?
Ms. Langan: I'm appearing as a private person, but as my primary job, I do support people who have been released from custody.
I believe it was Senator McPhedran who talked about the deinstitutionalization, the decarceration of individuals. As much as I support that idea for the appropriate people, I think the challenge when we saw that in the intellectual disability world is that those individuals ended up in jail.
We can get a lot of people who would pose low risk and would be able to be out in the community, but they still need the supports. They're going to struggle with homelessness, and that's something I see daily on a provincial level. There's just no support for individuals regarding housing.
When you look at an area like Kingston, the average bachelor apartment here costs almost $700 a month. That's more than Ontario Works, so it's no wonder that it may be enticing for individuals to go inside over the winter and get their "three hots and a cot'' and do those sorts of things because this affords them stability.
We're essentially taking individuals without support, without access to medication. That's one of the major challenges for individuals being released from federal custody. You only get two weeks' medication; no prescriptions. If you're a person who is actually prescribed any "abusable'' medications while incarcerated, good luck trying to get actual medications from an emergency room or from a doctor.
You're getting something like Percocets or T3s, and then you're released with only three days of "abusables,'' two weeks of antipsychotics or things that. So if you don't have a family doctor, and a majority of the clients don't, they're constantly struggling with trying to put these supports in place while facing systemic barriers that are well beyond their ability to comprehend or cope with.
When we look at deinstitutionalization, it's much more complicated than opening the gates. How do we support these people in the community effectively so that there is no risk of reoffending or so they have the ability to lead a quality life?
Some of the places that individuals are released to I wouldn't let my animals live in, but that's okay because they're on warrant expiry and there's no more mandate for CSC to care for them. These things are constantly coming up for these individuals, and it's almost that once you're out of the care and control of CSC, you're a throwaway.
The Chair: Thank you very much for that.
I'm just reading this article in the Kingston Whig-Standard. It was 2014, and there was a very compelling story on the ion scanner and the unreliability of it.
Ms. Langan: I would encourage you guys all to be ion scanned when you go into the institution to see if somebody hits.
The Chair: Right. Well, in this particular story they had a story about a —
Ms. Langan: And touch a couple of $20 bills before you go in.
The Chair: Really? Okay.
Ms. Langan: There is more cocaine on a $5 bill because, honestly, they're used for drugs all the time. I have clients' families who won't even go to the bathroom at a gas station on their way or use the bathroom at the institution just in case they might hit. There are so many things.
And then they counter-indicate tools. They'll use the ion scanner, and then they'll use the dog on you, and if you hit on one but not the other, isn't it saying that one is not effective?
The Chair: That's what the story says.
Ms. Langan: Yes.
Senator Pate: Thank you both for coming.
There are many, many stories of the unreliability of the ion scanner, including one documented by — I think Michael Jackson is coming as a witness, so we should ask him about the ion scan when he and the two others — well, he didn't, but three lawyers who were with him all rang off on how that was dealt with.
The process, as you've heard previously, of what it's supposed to be, there is lots of documentation of it not being followed.
Katheryn, I'm going to tell you what is supposed to happen. I don't want you to disclose anything that you're uncomfortable with or that's confidential concerning your husband, but it sounds to me as though he has not had an elder assessment, which indigenous prisoners are not just entitled to but supposed to have.
The case law that has developed is that section 718.2(e), often referred to as the Gladue factors, are supposed to be taken into account at all stages through the system, including release and detention hearings. It sounds to me like that may not have occurred, but if I'm wrong and if you're comfortable responding to that, it would be useful to hear.
Also, is the elder from your community or is the elder in the prison?
Ms. Wabegijig: The institutional elder.
Senator Pate: Okay.
Ms. Wabegijig: Are you saying that the Gladue report is basically equal to an elder assessment?
Senator Pate: No, that's not what I'm saying. I'm saying that an elder assessment is supposed to be done and section 718.2(e) is supposed to be taken into account. Sometimes they look one and the same, but they can be very different.
Ms. Wabegijig: So, yes, he's had an elder assessment. His elder has been particularly involved with him because he's been so involved in the programming, in cultural activities and in ceremonies. Yes, that's an active thing.
Senator Pate: You mentioned that you heard about section 810 and the use of peace bonds —
Ms. Wabegijig: Warrants.
Senator Pate: — if someone is detained. Is that the first you had heard of that?
Ms. Wabegijig: First I've heard of it, yes. I mentioned it to my husband before coming here, and he did say he's heard of it, but it has never been on his radar that that would actually happen. But hearing about it, it sounds quite plausible that that might happen to my husband if he were to be detained and then warrant expiry, I mean.
It would be interesting to know how many people that actually happens to. I'm not aware.
Ms. Langan: I've never seen a Gladue report as part of a community CRF assessment, so they don't give us access to any of that information.
Senator Pate: Just to be clear, it's not an actual Gladue report, but it's part of what's required to be reviewed as part of the assessment for decision; those provisions are supposed to be looked at. There are a couple of cases, so I would be happy to share those with you: the Twins decision and Pelletier. That would be helpful, probably.
The Chair: Well, we want to thank you very much for appearing before us, unless you have something else to offer us. To have these personal stories is important. I understand that a lot of the protocols when it comes to scanning and dogs are not being followed.
Ms. Langan: Yes.
The Chair: What can substitute for that?
Ms. Langan: That would be my question.
The Chair: I was just curious. Something has to happen, I would assume, when you're visiting.
Ms. Langan: There's no quality control. I visit the institutions on a regular basis, and what happens at one institution doesn't happen at another, doesn't happen with one CX-2 versus another CX-2. They'll use the same swab multiple times, which is not following procedures. They have different gloves.
Sometimes you're just worried about who's going in front of you. I'm a professional who has the higher clearance that most of the correctional officers that are scanning me. I mean, every day, I can't imagine what the families go through.
The Chair: This has been a very insightful day. In the interest of balance, we've heard so many things that are not being done properly. To the committee, I think that we publicly have to invite Don Head again to come and testify before us, because we've heard so much in 24 hours.
This study is going to go on for a year and a half. We will have interim reports, as I mentioned. We've had people from Correctional Service Canada before us, but I think at the end of the day, to be candid, the buck stops with the boss. I think he has to come and testify before us because we are hearing one side of a large story. We are hearing individual complaints and alleged human rights abuses.
You had a moment of empathy in your testimony, saying that there are some inside the prison, that the guards were trying their best. There has to be something said on a day like this when we've heard so much about how difficult it is for you and your families, and we've heard from Lawrence, but that there are many inside the prison system who actually want to see better things done. I think it's our responsibility as senators to come up with recommendations from you and from others to have a balance in our approach to what's happening on the inside.
Senator McPhedran, go right ahead.
Senator McPhedran: Thank you very much for making the time and for speaking with such clarity and authenticity to us. I greatly appreciate it.
This is an optional question. Don't feel any obligation to answer it, but would either one of you be concerned about repercussions as a result of coming to speak to us this evening?
Ms. Wabegijig: We'll think about it, but offhand, no.
Senator McPhedran: May I ask, if anything does happen, would you be good enough to please let us know?
The Chair: With that, I'm going to close with a very mundane statement. Our bus is leaving at 8:15 tomorrow morning, so we'll proceed with another 12-hour day. Having been in the media myself for 35 years, if anybody criticizes that we don't work — I won't say anything.
This has been so insightful. Thank you sincerely very much for coming.
(The committee adjourned.)