Proceedings of the Standing Senate Committee on
Human Rights
Issue No. 19 - Evidence - June 14, 2017
OTTAWA, Wednesday, June 14, 2017
The Standing Senate Committee on Human Rights met this day at 11:28 a.m. to study on the issues relating to the human rights of prisoners in the correctional system.
Senator Salma Ataullahjan (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good morning, senators. Before we begin, I would like the senators to introduce themselves, and we will start on my right.
Senator Andreychuk: Senator Andreychuk, Saskatchewan.
Senator Bovey: Senator Bovey, from Manitoba.
Senator Pate: Kim Pate, Ontario.
Senator Hartling: Nancy Hartling, from New Brunswick.
The Deputy Chair: I'm Senator Salma Ataullahjan from Ontario.
Today we continue our study on the human rights of prisoners in the federal system. We welcome the Canadian Human Rights Commission. We have Marie-Claude Landry, Chief Commissioner; Fiona Keith, Legal Counsel, Legal Services Division; Tabatha Tranquilla, Senior Policy Advisor; and Marcella Daye, Senior Policy Advisor. I thank you for being here. You have the floor to be followed by questions from the senators.
Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission: Thank you very much. Good morning. Thank you for inviting the Canadian Human Rights Commission to take part in your study of human rights of prisoners. Again, allow me to introduce my colleague, Fiona Keith, Senior Legal Counsel; Tabatha Tranquilla and Marcella Daye, both Senior Policy Advisor on these issues.
I would like to begin my remarks with a quote from Nelson Mandela that has become deeply important to me as a human rights defender.
It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.
I had long been aware of this quote, but only when I worked with inmates in Quebec did I appreciate its full meaning. Let me explain.
[Translation]
From 2009 to 2015, I served as senior independent chairperson of the disciplinary tribunal in federal prison institutions for the Quebec region where I had to rule on the charges laid in the institutions against the inmates.
This experience, coupled with my role as Chief Commissioner of the Canadian Human Rights Commission, formed the basis for my appearance today. My experiences on the ground are a complement to what the commission has concluded through its complaints: vulnerable groups are subjected to, in disproportionate numbers, unfair treatment during their incarceration.
[English]
The commission's message today is simple: Canada is not doing enough to ensure fundamental human rights as it seeks to rehabilitate offenders. We are not doing enough to even meet, let alone exceed, our domestic and international human rights obligations.
We see this in the complaints we receive. We see this in the over-representation of vulnerable groups within our prisons. We see this in our work with CSC.
To be better and to do better, we absolutely need to acknowledge, understand and address the vicious cycle of neglect and abuse that exists both outside our prisons and within them.
As you no doubt have heard from other experts, conditions that exist outside of prison, in society at large, continue to have an acute impact within prison walls. We are talking about systemic racism, discrimination and biases; historical abuse; profound poverty and food insecurity; insufficient access to health care; and inadequate supports in mental health services.
Our prisons serve as proof that too little is being done for the vulnerable groups that are the most affected by our collective failure in addressing those issues.
Indigenous peoples, black persons, those with severe mental health issues — these groups of vulnerable individuals not only represent the great majority of those who find themselves in our prisons, they also represent the great majority of those who suffer additional mistreatment and discrimination once inside.
Allow me to list the factors that are too often a source of discrimination within our prisons: an organizational culture that sees inmate support and services as privileges instead of rights; lack of training and resources, which mean that many vulnerable groups are at the mercy of individual experience and discretion; inadequate facilities or policies that fail to consider the individual needs of inmates, whether it be related to a disability, sex or religion, to name a few.
Where you end up, who is responsible for overseeing your day, and where inmates find themselves on the spectrum of vulnerability, these factors all play a role in how an inmate will experience and in some cases survive their incarceration.
Why is this important? Because once inside, inmates interact on a daily basis with guards, most of whom are not equipped with the training needed to deal with these complex issues. And when people are not equipped, they turn to Band-Aid solutions such as solitary confinement.
Expediency in managing the problem or behaviour takes precedence over human rights, and, in the process, they are denied appropriate medical services and supports, denied their dignity and denied their human rights.
[Translation]
Take, for example, indigenous women in our prisons. They are often victims of a toxic combination of racism, violence, sexual assault, and other forms of abuse. In addition, their difficult past means they are often suffering both physically and psychologically — a suffering that was often a contributing factor to their incarceration.
Thus, once in prison, and lacking support, they experience many challenges relating to their past that manifest themselves in behaviours that are difficult to manage. And in response to these behaviours, correctional officers have access to nothing more than solitary confinement, despite the numerous studies that have confirmed its devastating impact. As a result, these indigenous women, many of whom are victims of abuse and who may be living with depression, post-traumatic stress, and so on, find themselves isolated and deprived of all human contact — perpetuating a destructive cycle that the correctional service seems incapable, and even unwilling, to stop. A cycle that often ends tragically, with some even leading to fatal consequences.
Allow me to clarify: the problem isn't the law itself, which seeks, as its objective, public safety and rehabilitation. The problem is in its application. When the law is applied without nuance, blindly and without distinction, the conditions are set for injustice. If we are seeking justice for all, and not only for some, we must question ourselves as to the use of solitary confinement, in all its forms, in the incarceration of our vulnerable inmate populations.
[English]
These types of human rights abuses preoccupy the commission to the point that we have called on the Minister of Public Safety to impose a ban on the use of solitary confinement for women. Overwhelming research shows that solitary retraumatizes women who more often than not have themselves been victims of abuse. In concert with this request, we have also called on the government to ban its use of solitary confinement for all inmates suffering mental illness.
Yes, it is true that a prison sentence deprives an inmate of their right to liberty, but it should not deprive an inmate of their basic human rights. Our request for these bans is in line with section 4(d) of the Corrections and Conditional Release Act, which states:
offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted.
Our prisons are fragile environments that depend on a variety of actions and intentions on the part of all involved so that they can fulfil their important mandate of safety and rehabilitation.
Mental illness, poverty, abuse, solitary, addiction, lack of training, no support, limited resources — is it any wonder that many of our prisons are such volatile environments, ready to explode?
Senators, you have heard statistics and updates regarding new policies, new programs and improved practices. You have heard about additional resources, leading to progress in our prisons. While I can attest to the good intentions of many who work in this system, I can tell you from experience that there is a gulf between these intentions and our actions when it comes to reform.
To have profound culture change, we need more than another report, guideline or recommendation that can be easily ignored. We need strong leadership.
Being a world leader in human rights means leading by example, and this leadership should lead us to ask the following questions: What happens when we are unable to address these issues and shortcomings within our prisons? What happens when solitary confinement is used as a crutch, and what happens when punishment is more important than rehabilitation?
The answer should be evident: We fail our inmates, but we also fail ourselves when we let this happen because, to be the country that Nelson Mandela describes, the one that is measured by how it treats its lowest citizens, we need to ensure that human rights are fully integrated into the correctional system's mandate of safety and rehabilitation. In the end, shouldn't rehabilitation put an end to the cycle of abuse and not perpetuate or even accelerate it?
I really thank you for asking the commission to appear before this important committee. We will be happy to respond to any questions you may have in relation to human rights in Canada's prisons. Should you need future information that requires additional research, we will be pleased to follow up and to return to the committee again.
The Deputy Chair: Thank you very much. Is anybody else going to take the floor?
Ms. Landry: No. They will support me in answering your questions to the best of our knowledge.
Senator Eaton: This has been very compelling testimony, and awful. We have heard from a number of witnesses. Are there models in other countries about how we can improve the addiction and mental health issues, how they cope with addition and mental health issues, of women in prisons? Are there models for where people can get additional education? Are there models in other countries where prison guards get additional training dealing with cultural, religious and race issues that we could perhaps follow or learn from?
Ms. Landry: I will ask my colleague Fiona to take the floor for that question.
Fiona Keith, Legal Counsel, Legal Services Division, Canadian Human Rights Commission: Thank you. We would be pleased to pull together some of the information that we have and provide it to you in written submissions.
Senator Eaton: That would be great for our study. Thank you. That would be very helpful.
Ms. Keith: I can indicate, at kind of a high level, that, in fact, many of the mechanisms that we see used in other countries, which are community-based, would be largely possible under the existing legislation, and I'm referring here to section 29 of the CCRA and sections 81 and 84. I know that you are familiar with those provisions, but, under those provisions, mental health care or community corrections or community release options could all be available. In fact, to a limited extent, they are, but I think that's the barrier, the limited extent to which they're available, to provide substance abuse treatment in the community, both during the period of incarceration or in a community setting during incarceration or following release.
Senator Eaton: You have countries that could teach us something, other countries who do have a better system. Have you run across anything about actually training people, prison guards, people who work in prisons, that could help, because it has to be kind of a two-way street, I think?
Ms. Keith: I'm not aware of explicit examples. I can tell you that it is something that we are looking at in the broader context of security organizations. What we learn from looking at the complaints that are filed with the Canadian Human Rights Commission is that many of the same kinds of cultural barriers to, for example, behaviours such as harassment, are faced by organizations with security-related mandates.There seems to be, we would say anecdotally, at this point, a mentality or a way of being or a culture that can exist in organizations that have security mandates.As we are looking at that and our research progresses, we would be happy to share the results of that with you, if that's of interest.
Senator Eaton: I think it is because I think it is vital. We can do all the good work for the people actually incarcerated, but I think that, until we start giving education and training for people going into those lines of work, we are defeating ourselves, because we can tell ourselves that Canadians love diversity and that we're so tolerant, but maybe we're not.
Senator Bernard: Thank you, Senator Eaton, for that question. Mine follows that, actually. I have been one of those professionals in the Atlantic region who have been called upon to do diversity training, anti-racism training, with staff in all of the Atlantic regional institutions. At the risk of questioning my own professionalism, I would dare say that I find them very ineffective.
I believe they're ineffective because they're typically a day, possibly a day and a half, with no follow-up. So people who do this training will go in. They will do a staff training, and, for many staff, particularly those who don't see these issues as very important, who don't really understand systemic oppression and choose not to be open to further understanding of oppression, what typically happens in those situations, at least what has been my experience, is that they'll come — it will be a day off work — and go back to normal. Things go back to normal; things go back to the way they were. There's very little understanding of the systemic discrimination, the systemic racism, that impacts inmates in the way that you have described so well here in your presentation to us today.
To get to the question: Are there things that you think we can put into place that would help us to address these issues at a more fundamental level so that we get to a zero tolerance of racism everywhere, but certainly in the prisons?
Marcella Daye, Senior Policy Advisor, Policy, Research and International Division, Canadian Human Rights Commission: Thank you for the work that you have done in the Atlantic region. I do think that every little bit helps.
The Canadian Human Rights Commission has said before, on other issues, that a human rights approach should go beyond one-time training. A human rights approach really looks at the fundamental, systemic nature of the system that we're looking at, and it involves things like putting in place measures to count people, to get baselines of what is being done and what the policies' and programs' impacts are, to measure those across time and to put in place clear lines of accounting and public reporting on the improvement over time against human rights standards.
Pressure is probably not quite the word, but that kind of transparent accountability can, perhaps, urge organizations to instill a larger project, rather than just one-day training, if they are accountable to show progress over time against human rights standards. We would encourage a deep systemic look at the programs and building in that accountability in order to get to the point of culture change.
One of the key measures that we have also stated is that it does need championship and sustained energy and resources from the top of the organization to keep something going — to put it in place and to keep it going — over a series of years, not months.
Senator Pate: I'd like to pick up on what Senator Bernard has raised, given the work you have done as recently as — well, are you still doing it — the report you did in 2003.
When Louise Arbour looked at this particular issue in terms of training 21 years ago, she found that, in fact, the intransigence of corrections to that training was so great that she recommended judicial oversight. I'm looking at Marcella, but anyone may want to comment on whether you feel that is still a valid recommendation she made in terms of judicial oversight. She recommended sanctioning of correctional officers who didn't follow the law and the ability of prisoners to go to court and have their sentences revisited where the correctional treatment amounted to mismanagement of the sentence. I am curious as to whether you think those recommendations still apply. It relates to the whole issue of intransigence of corrections to that training even when you do more than one or two days.
Ms. Daye: I will start briefly and turn it over to my colleagues. The oversight issue is one we have often looked at, and, again, we would be glad to provide more detail and a clear recommendation in some further written submissions.
With the history of reports and recommendations that have continually come out, I think we are settling into a place where we see that more consistent and more rigorous oversight may be the only thing that helps things shift significantly.
I will turn it over to my colleague to talk about what forms those might take.
Tabatha Tranquilla, Senior Policy Advisor, Policy, Research and International Division, Canadian Human Rights Commission: Thank you, Marcella. I would like to echo that. Certainly we haven't come with detailed recommendations as to what oversight would look like, but we applaud the fact that the government has finally stated an intention to ratify the optional protocol to the convention against torture. We are excited about the possibilities that proper implementation of that protocol may have for the oversight issue.
Certainly, as part of that ratification, it is incumbent upon states parties to design, appoint or fund a national preventive mechanism that would provide the oversight that we're talking about in theory. We know the government is still at the early stages of that ratification, but that is a potential opening for a larger conversation with all parties about what components need to be in place in order to ensure that robust and ongoing oversight that we all recognize is so needed.
Senator Eaton: Do you think it should start at the very beginning? What kind of sensitivity, racism and cultural training do police officers get? Because very often, police officers are the first point of contact before they end up in prison. I know the Toronto police have had so many racial and mental health incidences, such as when Sammy Yatim was shot. There seems to be a lack of education, for a nice way of saying it. Is there something prison guards could learn from what the police are going through, or are the police still not going through good enough training to deal with mental illness, addiction and racism?
Ms. Keith: Policing is largely provincially regulated, but among the complaints we receive are those regarding federally regulated police, in particular the RCMP, and anecdotally we would say that issues of racial profiling are still occurring in the context of policing. It is unclear to me that that would provide a solid —
Senator Eaton: How about addiction and mental health?
Ms. Keith: What we would say about addiction and mental health is that community resources should be accessed as soon as possible and on an ongoing basis for —
Senator Eaton: Do police get training for that?
Ms. Keith: I don't know the answer to that question. What I would say is that it does, as you imply, start before training. I think it starts with hiring. Who you hire in the context of a security-based organization may be and, I think, is very different from the people you hire in an organization that is focused on rehabilitation and reintegration. We have seen that profile shift in terms of what it means to be a correctional officer. That is number one.
The other dimension relevant to hiring is employment equity. The way the federal legislation, the Employment Equity Act, works right now is that targets are set based on the demographic representation in the population at large. Of course, as you know and have been hearing for months, the demographic profile of the prison population is very different.
We would say that that has to be considered in terms of the targets that are set by CSC for the hiring of its employees. That is another way, beyond training, that you can introduce a level of sensitivity in recognition of special needs of particular populations.
Senator Andreychuk: I have listened to your testimony and read your comments. You seem to have made a brief with a lot of facts and a lot of information that we need to know. How did you compile this? Is it from complaints that you receive individually, or is it on a particular study? My interest in this is that when the commission was set up originally, it was supposed to be an influential organization, both for the information and education of the public and to be a voice that the government would respond to.How do you pick up this information to have made this statement to us? Is it from the complaints? Is it as you work toward your annual reports, or is it based on a particular study and finding?
[Translation]
Ms. Landry: The information in my opening remarks is based on a number of factors: first, my personal background as an independent chair of disciplinary tribunals for a number of years; and second, the policy work and the research that we do and the kinds of complaints we get at the Canadian Human Rights Commission. This combination is what allowed me to make those statements in my opening remarks.
[English]
Senator Andreychuk: Some of the statements that you make have been of long-standing duration and facts you have known. How do you convey this to the government, and what responses do you receive? Because the situation hasn't changed much. It may have even accelerated. What is the interchange? What levers and influence do you have to get the government to respond to what you are saying?
[Translation]
Ms. Landry: That is an excellent question, and I thank you for that. One of the roles of the Canadian Human Rights Commission, as you pointed out, is to give a voice to those who do not have one. Since my appointment as Chief Commissioner of the Canadian Human Rights Commission, this has been very clear to me, and that's what I've been busy doing: denouncing situations that need to be denounced, giving a voice to certain groups when I thought they needed it on behalf of the Canadian Human Rights Commission, always in the public interest and in keeping with our mandate.
We have various tools. Clearly, there is always the part about complaints that can help us advance the state of the law and to play a role of influence with the various correctional authorities and the government. In addition, there is our work with our various partners, stakeholders, the department and the correctional services, which also allow us to denounce and expose situations and deal with them. That's what the Canadian Human Rights Commission does.
Now, I think Ms. Daye could give you some other details that might have escaped me.
[English]
Ms. Daye: Yes, thank you.
Expanding on the elements you mentioned, some other points of influence we have are through submissions to international treaty bodies on the treatment of prisoners, and Canada, as you know, is subject to a number of those. My colleague Tabatha Tranquilla could talk to you in more detail about those. That brings some international pressures to bear on Canada to respond to those recommendations we make.
In addition, we have recently had a more positive interaction at the working level on policies, so there is a door open, I think, at CSC to discuss changing policies, which is only one small element of changing culture. There is influence to be had through those working relationships as they consult on bringing some of their policies up to date, and that's in addition to the much higher-level conversations that take place at the Chief Commissioner's desk.
Senator McPhedran: Thank you for being here. I have a multipart question, and it relates, overall, to access to the commission by prisoners.
Part one is to refer back to the 2003 report from your commission entitled Protecting Their Rights: A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women. I wanted to ask for a bit of an update over the past 14 years how you would summarize and assess the implementation of recommendations that you made that directly pertain to Correctional Services of Canada.
Part two of my question is in relation to section 4(g) of the Corrections and Conditional Release Act, also geared to Correctional Services Canada, but in that section, as you know, it says correctional policies, programs and practices respect — a very positive statement there — gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, Aboriginal peoples, persons requiring mental health care and other groups. What is your assessment in terms of the actual implementation of this very positivistic statement coming from section 4?
Part three is a more general question, and I will just parenthetically note that in my very brief time as a member of the Canadian Human Rights Tribunal, one of the things that I found most troubling and, in fact, it contributed to my resignation from the tribunal, was the lack of support, the challenges of access to people who could not be expected to be sophisticated in their understanding of the Canadian Human Rights Act, in their understanding of processes, with all kinds of barriers, and I don't need to go into detail because I know you are well aware of it.
I wanted to ask whether you have put in place relatively recently — let's say in the last 10 years — a protocol, additional funding, additional resources, anything that has been specialized to respond to the practical reality of the barriers to prisoners for those who would try to make a complaint or even an initial communication to the commission. We recently came from visiting a number of correctional institutions, and this is something that was very clear to us. The barriers literally start behind bars and they multiply after that. Are there any specific examples you could give of strategies, outreach or resources that you have dedicated to try and make this a genuine access opportunity for prisoners?
And thank you so much for your patience with the three-part question.
Ms. Keith: With respect to the 2003 report, Protecting Their Rights, we conducted a follow-up for a number of years after that. There were a number of action plans that were provided by CSC, and we monitored those. Many of the recommendations that the commission made at that time were similar to the recommendations made even going back to Justice Arbour and have been made subsequently by, for example, the Office of the Correctional Investigator.
We would say, I believe, that the recommendations have largely not been implemented fully, which is not to say there hasn't been positive movement, particularly in certain areas, but overall, if you look at issues that are as systemic and systematic as security classification, which is something we talked about in our 2003 report, that system, I can tell you, is largely or completely unchanged, and we know and it is quite clear that its adverse impact on indigenous women is even more egregious than its impact on women as a whole.
We recently went through — I don't want to say all because there's been so many, but certainly the greater part of reports that have been made regarding CSC since Madam Justice Arbour, and we tracked the recommendations and compared them and then assessed whether or not they have been fulfilled. We could share that with you in some form if it would be of interest and help to you.
Senator McPhedran: Please.
Ms. Keith: I appreciated your question with respect to section 4(g) of the Corrections and Conditional Release Act. One of the unique features of this legislation is that it reflects and embodies human rights obligations. I don't want to go so far as to say that it is on its face a piece of human rights legislation itself, but those values and obligations and responsibilities and even standards are embodied in part of that legislation, and section 4(g) is probably the high-water mark of that.
In terms of assessing its implementation, there has been no formal assessment conducted of section 4(g) in and of itself, as far as I know, either by the Canadian Human Rights Commission or any other organization. The scope of section 4(g) is potentially very great, as it is intended to be a principle that applies to everything that CSC does and applies to every aspect of the CCRA.
There are currently legal challenges. One is currently before the Supreme Court of Canada and will be heard in November this year. It relates to the application of section 4(g) and what it means for CSC to have a positive duty to consider the special needs you described. I believe that the court's decision will be helpful to all of us in understanding what that positive duty on CSC means and what it contains.
Finally, you asked a question about special measures or specific protocols that the Canadian Human Rights Commission has put into place to respond to the needs of prisoners, and I am going to just take a step to the side and explain a particular dynamic of the complaint-filing process.
When a complaint is filed, be it by a prisoner or any other person in Canada, that complaint is theirs, and what I mean by that is, in the context of settlement discussions, if a complainant decides to settle his or her complaint, then the commission does not have standing to stop that settlement. In the context of complaints filed by prisoners, this is particularly important, because we know that in the last 10 years, over approximately 80 per cent of the complaints filed by prisoners that have proceeded to the Canadian Human Rights Tribunal have been settled. And what this means is that many important, systemic issues have not been fully heard by the tribunal. We don't have enforceable orders.
What we do have on the positive side are settlements which I can say, having participated in a number of them, do provide for much-needed correctional services for individuals. From the perspective of a vulnerable individual, one can imagine and see the value in achieving a settlement that at least in the short term is going to provide them with mental health services or a transfer to an institution that is closer to their family or other things which, before they filed their human rights complaint, they had been deprived of.
There are right now a number of what I would call systemic complaints that are proceeding on behalf of prisoners before the Canadian Human Rights Tribunal. These are broadly based, systemic complaints that engage many different grounds under the act and many different prohibited practices. The importance of these complaints is not only that the commission is participating fully in leading these cases before the tribunal, but also that they have been brought by organizations on behalf of prisoners. Our hope is that, given that they don't turn on the backs of individuals, if I can use that word, that the complaints will not settle unless and until there are fulsome and adequate systemic remedies that form part of those settlements and, if that is not possible, that the complaints will be fully litigated and result, if substantiated, in orders that can be enforced. I hope that's responsive to your question.
A smaller but very important aspect of your question is protocols. The commission, as you know, has a complaint intake function. Calls go to Service Canada. That can present a barrier to inmates because they have to navigate this labyrinth. As much as possible, we try to ensure that we are directly accessible to inmates so they can call our intake staff directly at their desks. That's one thing we do. We also have flexibility in terms of the form of the complaint that we receive. We try as much as possible to exercise that discretion in favour of accepting, for example, handwritten complaints from prisoners.
Senator McPhedran: I appreciate you have described a modification to your intake process for making direct calls. How do you ensure that prisoners know about that?
Ms. Keith: We do rely heavily on organizations such as the Elizabeth Fry Society. They have an effective handbook they give to prisoners that includes contact information for the Canadian Human Rights Commission. In the context of the 2003 report, we visited a number of prisons and there were widespread interviews conducted with inmates. This is an area we can probably look at improving our communications strategy.
Funding is always an issue, as you can imagine. Sadly, prisoners, although a highly vulnerable group, are not the only vulnerable group in Canada. They're not the only group that faces barriers to accessing our services, but we are currently engaged in a lean initiative. It is an initiative whereby we are paring down our barriers and making our processes move more quickly, and we're evaluating this on an ongoing basis. Our hope and belief is it will improve access for vulnerable groups.
[Translation]
Ms. Landry: When I was appointed to the Canadian Human Rights Commission, I could not ignore the almost six years that I spent visiting federal detention centres on a regular basis in Quebec. As the chairperson of the disciplinary tribunal, I went there almost weekly, sometimes twice a week, to hear the complaints of the inmates about conduct.
I came to the commission with knowledge of situations of extreme vulnerability, where I saw what I sometimes call human tragedies, distress situations. As soon as I arrived at the commission, I can assure you that this was one of my priority issues. Although there are a number of vulnerable groups, the fate and situation of the vulnerable clientele in federal institutions have been paramount to me. This is one of the reasons why I have worked hard with my colleagues to communicate with the various groups and stakeholders working with inmates to ensure that the message is clear.
As Ms. Keith mentioned, the commission's complaint process is undergoing a transformation. For me, the priority was to simplify the complaints and determine which issues needed to be our priority. All the cases are important, but they do not necessarily all have the same urgency. That is what we are doing.
We work closely with the political, legal, communications, research and complaint departments. All the necessary tools will be put in place in order to improve access to the Canadian Human Rights Commission for all vulnerable groups, including the inmate community. It is high time to put the word "human'' back in "human rights.'' We must tailor our services to the needs of our clientele. That is the philosophy of the Canadian Human Rights Commission, and we are working as hard as we can to accomplish it.
One of the major challenges we are facing is pressure. There has been a significant increase in complaints over the past year and a half, not only from the inmate community, but at all levels. However, human and financial resources have stayed the same at the Canadian Human Rights Commission for 15 years. This is extremely challenging for the commission. We have our duties, we fulfill them, but at some point, we will have to receive a positive response to our requests. We want to provide services, but we need the resources to do so.
[English]
Senator Pate: Following your testimony today, can you provide us with the information about the 80 per cent of complaints that are settled? Because if they're settled, chances are the human rights violations were well recognized by all involved, and yet there are nondisclosure clauses usually on those complaints. I'm not asking for names. If we could have the types of human rights violations settled by Corrections as well as those outstanding and the nature of the type of human rights violations so that the committee can have an idea of the extent of the problem in terms of human rights issues, that would be extremely helpful. Otherwise, that information doesn't see the light of day.
Ms. Landry: I will ask my colleague Fiona to answer your question. I can say it is around 82 per cent of complaints have been settled on a confidential basis.
Senator Bernard: I appreciate the question Senator McPhedran asked. I have a follow-up. I was encouraged to hear your response about a number of systemic complaints before the commission now. Are you able to give us any additional information around those complaints, particularly around what issues they're addressing?
I am particularly concerned about race-based complaints because I know from my work in this area that race-based complaints tend to be very few that go forward. I know you mentioned that some of them are being bought by organizations on behalf of prisoners. You mentioned the Elizabeth Fry Society. I'm thinking specifically, given the over- representation of black people in the prisons, and also the fact there is no national organization that addresses the needs of the black community, are any of those complaints are addressing race issues in particular?
I would be interested in seeing the range of issues being addressed by these systemic complaints because I think they're very important. I am encouraged to hear about it. I just would like a bit more information.
Ms. Tranquilla: Absolutely. I will start and then pass it over to my colleague. To give you some general numbers, some of the information we have been able to pull together for our appearance here today, in the past five years we have accepted 203 complaints from inmates against correctional services. About half of these involved allegations of discrimination based on religion, so that was one of the grounds cited in about half the cases. About a third involved discrimination on the basis of a disability. Fifteen per cent, approximately, made allegations of discrimination of a systemic nature based on a policy or practice. We have referred 39 of these complaints forward to the tribunal. The others have either been dismissed, referred to an internal grievance process or settled. The vast majority have settled. In terms of those complaints, we can provide some more detail about what specifically we're looking at.
To your question about race-based complaints, we do have some limitations in our ability to draw information from the information systems that we have. We can only collect information that is relevant to the complaints. There are some privacy concerns. We can look at what information we can provide and come back to you with specific questions about race-based complaints.
On the complaints that have been referred to the tribunal, I can give you some information about what kinds of systemic issues have been raised. About a third of the complaints were filed by or on behalf of prisoners with mental disabilities. About a quarter were filed on behalf of indigenous persons. Again, about a quarter were filed by or on behalf of transgender prisoners. Approximately a quarter included allegations of harassment by correctional staff against prisoners, and approximately a quarter included allegations of discrimination and the use of segregation.
That is some general context of what we are seeing, but we would be pleased to come back with more.
Ms. Daye: To build on some of the things that we have already mentioned, we do often rely on organizations that do work more directly with prisoners on a regular basis to assist prisoners in bringing their complaints to the commission. We are, frankly, very grateful for that work. We are not the only players in this field, and it takes a society of organizations that can be helpful.
Once a complaint reaches our door, over a series of years we can see a smattering of complaints that raise similar issues. We can start to get an idea of some of the systemic issues being raised in our complaints. What has happened specifically in the issue of transgender complaints is we have seen that happen over a series of years. We have seen a number of complaints come in. Almost all of them have settled.
The organizations that work directly with these prisoners have also begun to see that same pattern, and that has resulted in the organization itself, in this case West Coast - Prisoners' Legal Services, to bring forward a systemic complaint. It is in those systemic complaints where the organization, not an individual, is responsible for owning the complaint and those systemic issues can be raised more comprehensively and hopefully a more comprehensive and systemic remedy can be found.
It is also in those systemic complaints that the commission itself might be more involved to assist in representing at tribunal because those systemic complaints may have a greater likelihood of ending up at a tribunal hearing. As we were saying, when an individual has a complaint, they're really seeking, often in desperation, to have their individual circumstances resolved. Once those are resolved, the responsibility to continue the complaint is often a burden that is not necessary for them to carry and they will close their complaint.
In a systemic complaint, where we have all of that smattering over a series of years that coalesces in a systemic complaint from an organization, the commission has more ability to raise those systemic issues to the attention of the tribunal and to bring to bear the oversight and the remedies that can then be put in place.
I anticipate that we have probably seen a similar pattern on other issues, like mental health and segregation, and it is that coalescing of public debate, of studies like yours, the recommendations over the years and those individual complaints that can push an issue for that systemic change. We are starting to see some of that happen now.
Ms. Keith: You asked about systemic complaints before the tribunal. In addition to the complaint my colleague just referred to filed by the West Coast Prison Justice Society on behalf of transgender and gender-diverse inmates, there are actually two related complaints filed by CAEFS a number of years ago now and, interestingly, basically continue the allegations of discrimination that were examined in the 2003 report. So this gets back to the question about whether or not those recommendations made in 2003 by the commission have been implemented by CSC. These two complaints filed by CAEFS arise out of a concern that those recommendations have not been implemented.
These are extremely broadly based complaints filed on behalf of federally sentenced women, particularly indigenous women and women with mental health issues, and they allege discrimination in the use of security classification, the use of segregation, access to mental health services and, finally, on behalf of indigenous women, differential access or lack of access to indigenous cultural and spiritual practices and programming.
Ms. Daye: It is important to know, as many of you probably do already, that the commission can accept a single complaint that has many grounds listed in it. That gives the commission the ability to examine and consider intersectional impacts of individuals, so although a complaint may be filed on disability and mental health and indigenous identity, it may be the combination of all of those things that has resulted in mistreatment. The act specifically allows us to consider the impact of a combination of grounds that are listed in our act.
Senator Hartling: Thank you very much for being here. I appreciate all your information. I liked your quote, Ms. Landry. I want to read it again because it is so important.
It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.
That spoke to me, and all of what you said, because recently we did go to the prisons and spent four days there, and I think every citizen in Canada should have an opportunity to have a glimpse into what goes on in prisons and should really understand the issues people are facing.
It took me three or four days to settle in myself. Once you see something, it is different than reading it. Once you have spoken to people and you have heard from them, it is a different effect than just reading about it.
One of the things that I came away with — a lot of things we talked about, race issues and religion — is the number of people with mental health issues in prisons was overwhelming. Have there been any changes in that area, for the better, worse? What could we do about that? I hope our committee will be a champion on the issue of human rights in prisons, but on the mental health issue, I was shocked to see how many people are incarcerated with mental health issues.
Ms. Landry: Thank you for your comments. I can just talk about one experience I had that will give an example of what problems we face when we look inside.
I was in a Quebec institution for a hearing, and an inmate was brought in front of me for having refused an official order to stop banging his head on the wall. At that time, I remember that I clearly asked the officer, "What's going on?'' That person, that inmate, needs help and services more than he needs to have an offence report for having banged his head on the wall. If he bangs his head on the wall, it's because he needs your help, not to have an offence report at the end, a major one that can put him in segregation or, as a result of which, he can have a fine or something like that.
There is a miscomprehension of the complex situation that can be brought by the mental health issues. I believe and mentioned in my remarks that the complex thing is the fact that the employees who work with that group of vulnerable people are not equipped to deal with those kinds of situations, and they are not trained to work with those people.
I faced the same dramatic situation with an inmate who had been assaulted when he was young by his father and uncle. He had been abused, and, at some point, an officer asked to search him and for him to position himself in an unacceptable position to be searched. There are so many of those stories that I can tell you that I witnessed when I was inside. Probably, the advantage that I had at that time was that I was not visiting anymore. They were used to having me inside because I used to be in those institutions almost every week, twice a week. Then, I had the privilege of witnessing all of those situations.
First, we need a clear message from the top that enough is enough and that it's not acceptable anymore and that people should be accountable for their behaviour inside. That's important. They also need to invest resources to train staff and make sure that the people they hire for that job will not just be there for the security and the policy purposes but that they understand that the important part of their mandate is the rehabilitation and their responsibility to do so and to not exacerbate or increase those situations.
Senator Hartling: Thank you very much because it is that experience you have that speaks to what we're talking about. It's that human connection. I think some animals might be treated better than people are there, and that's unacceptable.
Senator Pate: Leading off from that, there are provisions in the legislation that you spoke to that could be implemented in a much more fulsome way than the policies allow, and I'd be interested in your comments on that. You mentioned sections 29, 81 and 84.
I know you intervened recently in the inquest into the death of Kinew James, an indigenous woman with significant mental health and health issues and some of the systemic issues that were identified in that process. I'd be very interested in you sharing that with our committee, as well as some of the challenges you saw in that process in being able to bring forward those issues in terms of the reluctance of the system to address it or the inability to actually hold to account corrections or even policing authorities, Coronial authorities, if you have any comments on those. I may have a supplementary. Thank you.
Ms. Landry: I will ask Fiona to take the floor about sections 29 and 81, but I just want to mention that, for me, correctional services should take all of the tools available to them to provide for the needs of the people who need services and care inside. If we want to achieve the mandate to rehabilitate those people and make sure that, at some point, they will become citizens who will be able to contribute, we need to use the tools that are available to improve that situation.
Ms. Keith: There are a lot of duties on CSC and CCRA, and we've talked about some of them here. The problem is that, when you deal with those duties kind of atomistically and lose sight of the prisoner as a person, as a human being, you fail to respond to them. I think Kinew's death is one of those instances and also points to a limitation in the inquest system. Inquests have been a powerful social tool to uncover systemic problems and lead to systemic change, but the inquest into Kinew's death kind of epitomizes this segmented approach to prisoners. It dealt with the proximate cause of her death, which was a heart attack caused by hypoglycemia resulting from long-standing, poorly treated diabetes, but, in actual fact, her death was the culmination of years of systemic use of segregation, neglect and mistreatment by prison guards and lack of access to her son. I can go on and on, but all of these factors and conditions contributed to poor health. They weren't examined by the inquest, unfortunately, because the inquest was only interested in examining the "medical treatment'' that she received for her physical health, for her diabetes, and, as a result, not much is known, really, about the systemic factors, the interlinking and interacting systemic factors that led to her decline and her death of a heart attack at the age of 35.
Senator Pate: In terms of those issues, have you documented that piece of it? I know it was documented by the Human Rights Centre at the University of Toronto when the current chair of the Ontario Human Rights Commission was the director of that centre, as well as by the Correctional Investigator. Have you documented some of that experience from the inquest that you'd be able to share with us as well?
Ms. Keith: Yes, we can produce a synopsis. As you know, Kinew was one of the women interviewed by the OCI for their report Risky Business, and she's quoted in that report. But we have additional information that we can share with you.
Senator Bovey: Thank you for your commentary. I'm not a regular member of this committee, so I found this very interesting and concerning.
I'm still on mental health issues. I know that section 29 of the Corrections and Conditional Release Act does allow for the transfer of federal inmates to provincial facilities and provincial hospitals. This committee heard from the regional advocate for the Canadian Association of Elizabeth Fry Societies earlier in February that section 29 of the CCRA should not only be used for emergencies but should also be used for those inmates, male and female, who are dealing with mental health issues. Do you agree with that? If so, can you tell us what some of the benefits might be?
[Translation]
Ms. Landry: I will start by answering based on my experience. You know, the major difficulty is that sometimes those responsible for the inmates' safety and well-being have difficulty distinguishing mental health problems from bad behaviour. Not too long ago, I heard once again that an individual's behaviour, which could certainly indicate potential mental health problems, was described more as bad attitude or bad behaviour. It is not surprising that section 29 is not used more frequently to allow inmates who have needs to receive appropriate care. That's what I have seen on the ground.
I do not know whether Fiona or anyone else would like to add anything else?
[English]
Ms. Keith: There are a number of potential advantages in using section 29 facilities, or facilities available pursuant to section 29. First and foremost is being able to locate facilities that are closer to women, because right now there's a limited number of institutions for women in Canada and, depending on where they're placed, they can be very far away from family and children.
The next reason is a little more nuanced, and that is that for women to access services within institutions — for example, the institutional psychologist — that psychologist is an employee of CSC who is ostensibly providing mental health care to the woman. But the whole issue of confidentiality of care between the therapist and the woman, which I think most of us would hold as being key to effective mental health delivery, is not the same in an institutional environment.
If women or any prisoner can access services in the community from somebody who is not a CSC employee, that confidentiality would likely be enhanced. We've seen instances where, for that reason alone, the treatment is much more effective. I'm thinking of a woman in this instance who accesses mental health services in the community. She's incarcerated in one of the regional facilities but goes into the community for her health care. Her improvement since she began doing that is remarkable. It's notable and it has affected all aspects of her daily living.
Senator Bovey: Could I ask one supplemental that's sort of related and sort of not? I was very aware those few years ago when the farm, for instance, in Kingston was cancelled. I was following the effect it had on some of the inmates. Has that increased? What kind of effect has that closure, and the closure of other types of programs within correctional institutions, had on increasing mental health concerns within prisons? Has it had an effect?
Ms. Keith: I can only speak based on the number of complaints that I have dealt with. I think that it's increased the pressure within institutions. They're not a good place for anybody, but they're a lot more difficult for some people than others. For those people, they often begin to exhibit something that is euphemistically called institutional adjustment. That basically just means they can't cope with where they are. They're acting out and behaving in ways that attract security responses.
The lack of mental health services and supports in those instances is all the more difficult because it begins a spiral. They act out; their mental health is deteriorating; they attract responses; their security classification increases; they may end up in segregation; they may commit offences in institutions; their sentence balloons. They may have been admitted for 6 years but end up serving 15, 19 or 21 years. When I give these figures, I'm thinking of actual files that I've read that I'm not at liberty to share with you in terms of the names of the individuals. It's a vicious downward spiral and only results in negative outcomes for many of these offenders.
Ms. Daye: I'd add to that by pulling back and looking at the big picture and, perhaps, harkening back to some of the questions from Senators Eaton and Andreychuk at the beginning of the session.
It might also be good to know that out of all of the complaints that come to the commission, about 60 per cent have disability listed as one of the grounds. Half of those — fully one third of all of our complaints — concern issues of mental disability. That is a significant indicator that this issue is not being dealt with even before people hit the carceral environment — for example, the issue of how police react to the same behaviour.
I'm projecting now, but you can go back and talk about behaviour in the schools. I think I saw a research report this morning that talked about how the behaviour that children who are Black, and who have Black teachers, exhibit is less likely to be determined as threatening.
So there's something to be said for addressing systemic racism in school and educational environments because behaviour that can stem from mental health issues can continually be mischaracterized as behaviour that leads to over- criminalization, which then leads to incarceration. I know we're here to talk about only one portion of that system, but the overall system is something we see in a wide range of our complaints, as do other commissions in Canada.
Senator Andreychuk: Supplementary to that, in my previous life many decades ago, part of the problem of the incarceration of young people was the fact that there were no services pre-school at the beginning to identify the problem, so they seemed to compound, and then there was always the criminal charge that would be laid, but at least someone would get the resource. I'm not saying they would lay the charge wilfully — there would be substance to it — but it was desperation. At least, maybe, as the police would say to me, "the kid would get some attention.'' So the talk 40 years ago was let's do it in a preventive mode, pre-school, particularly to identify the behavioural or mental health problems in young children. What you're telling me is it hasn't changed much.
Ms. Daye: I'd say the common cliche is that if the only tool you have is a hammer, every problem looks like a nail. So if the only tool people have is to talk about a security response to behaviour, then that would inevitably lead to incarceration if that cycle continues. So society as a whole needs more tools.
I think public awareness of mental health issues has come a long way in the last 10 years, and even in the last 5 years I think there has been a significant difference in the way we de-stigmatize mental health issues. We have yet to see how long that takes to work through the system and improve services at the community level to decrease incarceration results.
Senator Pate: Leading off from what you were just saying, one of the things we've been looking at is those areas. It sounds like it might be helpful, if the committee sees fit, to comment on those preconditions, as well as the resources that need to be in the community and the ways the current act could allow, as you've all mentioned, the current provisions that are underutilized to get people into the community and they can access services in the way they were intended. I think there were some good recommendations in the 2003 report you made, and Louise Arbour made as well, that we referenced, so thank you for that.
The Deputy Chair: As you can see, we've gone way over our time. You've generated a lot of interest and I thank you again for being here.
Senators, we have a budget before us for two trips this fall, one to Scotland, Norway and Denmark, and one to Western Canada. Are there any questions? Any discussion?
Senator Andreychuk: I'm not much for spending money, as you well know. I have difficulty with hospitality anywhere in our travels. More and more, hospitality is not given. This is the kind of thing that attracts bad publicity for us, and these things now are public so I'm worried about that.
I also look at airfare, if you're talking Western Canada, $99,000? I do know if you want to travel business class from Ottawa to Regina, it could be $2,000. I have never done it, except in one medical case. If you're going to fly in an E90, does it matter if it's in economy or business class? Again, to look at transportation at $99,000 is shocking to me. So those are the things that instantly hit me. Working meals, you have hospitality, meals, per diems. Which is it? Choose which ones you want to do. I'm not sure where the chartering a bus at $5,000 comes in.
I just think travelling to Western Canada should not be that expensive. I just don't know where that is and how that lies with other committees that travel. Our clerk is going to take all the categories and fill them in. I find that extremely top end. I understand if you plug into a computer, you're going to get these prices on air, transportation and hotel.
The same thing on Scotland, Norway and Denmark, again transportation at $12,500. I can do Africa with two stops at that price. You can punch out a price at $17,000 to go to Africa but you never pay that. So I just wonder about that.
We're travelling with three staff when normally it is one clerk and one researcher. I don't know if this is becoming the norm or what have you. When you look at nine staff, that's translators because it's fact-finding, et cetera. I get that and I think other people get that.
It just seems to me that the budget seems to have taken the top-end items. The difficulty is it gets posted and then we have a problem. Very rarely do people look at the actual spent amount. So just from a PR point of view, I find this budget difficult, not where you're going, not what you want to do, but the prices that have been plugged in to overcompensate and ensure you have enough money. It gives the wrong picture. When we're visiting prisons, people who have had difficulties, this just doesn't fit the situation. I've made my comments.
The Deputy Chair: Thank you, Senator Andreychuk. If there's agreement, we can remove the hospitality costs. As you know from committee travel, we always budget for the highest but very rarely do we spend that. I think Mark would be a better person to explain.
Mark Palmer, Clerk of the Committee: We use the highest fare and we have had to spend it before, which is why we use it. We've never used it for all the staff. It's been if someone has been a last-minute addition, sometimes we've used the highest fare. I can do an average, take the highest fare, the medium and somewhere in the middle which will be more than enough. We have had to use the maximum a few times, but I can do more of an average and that will bring down the budget quite a bit.
Senator Andreychuk: I could not fly to Western Canada and if we're going to five places, $9,000?
Mr. Palmer: I'll do an average and it will bring it down by half probably.
Senator Pate: When I looked at this, it looks like it's one trip, but my understanding is there are two or three trips in each of these categories. It's a continuation. It's not just going to one point in Western Canada. So maybe clarify that a bit.
Mr. Palmer: That will be in the report. The Western Canada trip is Edmonton and Vancouver.
Senator Pate: Edmonton and Vancouver. Maybe if it helps to say that, because I think your point is well taken, so people aren't thinking we're getting the most expensive seats and jet-setting.
The Deputy Chair: We will be travelling in the cheaper seats, economy and things.
Senator Bernard: I just wanted to support the comment that Senator Andreychuk made that the optics of this are very important. We have to keep in mind that we are dealing with prisoners' rights, so we definitely don't need hospitality and a per diem. If we're getting a per diem, we don't need hospitality. Those are Senate policies anyway, to find the best fares and not the highest. The onus is on us, those of us travelling, to make sure that we do. Yes, emergencies happen, but in our planning we should do the best we can to remember that we're using public resources and to use them wisely.
Senator Hartling: Do you get a group discount if enough people are going?
Mr. Palmer: We do get a group discount on certain airlines if we have enough people. That will depend on when we actually book.
Senator Hartling: We have a responsibility to commit so you have a number of people. I go to Western Canada a lot because my family lives there and I get good deals. There are ways to save money there. I agree. I feel uncomfortable to spend lots of money on something that is important, but the perception of it. Can we do this and do it well, but not have to spend a lot of money?
The Deputy Chair: I think, generally, we budget for the highest, but very rarely does the committee spend the money. We're also sort of thinking that everyone wants to travel, but we find that a lot of senators will not be able to travel. We budget room for eight.
Senator Hartling: But I think that if we know that it's going to happen on whatever dates and then we make a commitment, then you'll be able to get the better deals for us. If we make a commitment, then maybe the onus is on us, if we have to back out, that we are responsible somehow. Just saying.
Senator Pate: Just for our information, the trip that we just did, what was the budget amount and what did we spend actually?
Mr. Palmer: It was budgeted at 71, I believe. I don't have all of the invoices tallied, but we're going to be around 45. So we always spend less, but the point is taken. We'll lower the numbers.
Senator Andreychuk: In today's day and age, with budgeting to spend the top when we know we're not going to, is that working? I'm finding that, on parliamentary associations, if you just phone up the travel agent that we're obliged to use, you get these unbelievable costs, but we're not doing that because we're saying, "Go to the wholesalers and get what are different business class seats.'' Today, if you phone up, you can get tickets to Norway, et cetera, not at those prices. But if you put it in this budget, it's going to be published, and that's what we're going to be lambasted on. I just don't want to be the committee, travelling on the subject matter that we're doing, to say that that's what it is.
The reason I say this is because I've had to try and rebut after the press picked it up, and you say, "But we didn't spend that.'' They don't care. That's what you were allotted. That's what you got, and look at the way they live. And we say, "But we didn't do that; we were just being cautious.'' It didn't work, so maybe I'm just a little gun shy.
Senator Hartling: I think you're right. Expenses are such a big issue right now.
The Deputy Chair: I think we've gotten the message. Mark, you need to just see where you can slash and cut.
Senator Andreychuk: Otherwise, I think the trips are valid and all of that.
The Deputy Chair: Is it agreed that the special study budget application for public hearings and fact-finding in Western Canada, as well as fact-finding in Scotland, Norway and Denmark, as part of the committee's study on issues pertaining to human rights of prisoners, for the fiscal year ending March 31, 2018, be approved, with the changes that we discussed today; and that the Subcommittee on Agenda and Procedure be authorized to approve the final version of the budget for the chair to submit to the Standing Committee on Internal Economy, Budgets, and Administration? We need that motion passed.
Senator Andreychuk: You'll inform us?
The Deputy Chair: Yes. Mark will inform us. Can we pass that motion?
Hon. Senators: Agreed.
The Deputy Chair: That brings us to the end of the meeting. Thank you very much, senators, and enjoy the rest of the afternoon.
(The committee adjourned.)