Proceeding of the Standing Senate Committee on
Human Rights
Issue No. 26 - Evidence - Meeting of March 21, 2018
OTTAWA, Wednesday, March 21, 2018
The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to study the issues relating to the human rights of prisoners in the correctional system.
Senator Wanda Elaine Thomas Bernard (Chair) in the chair.
[English]
The Chair: Before we begin, I have a request of the senators. Is it agreed that, for the purposes of our public hearing in Halifax on March 26, quorum be any three members of the committee?
Hon. Senators: Agreed.
The Chair: Thank you very much.
I’ll have the senators introduce themselves, and we’ll start with the deputy chair.
Senator Ataullahjan: Salma Ataullahjan from Ontario.
Senator Andreychuk: Raynell Andreychuk from Saskatchewan.
Senator Hartling: Nancy Hartling from New Brunswick.
The Chair: Wanda Thomas Bernard from Nova Scotia, and I’m chair of the committee. Welcome.
For our first panel today, we are pleased to welcome, by video conference, Ms. Emma Halpern, Executive Director of the Elizabeth Fry Society of Mainland Nova Scotia; and Mr. Fred Sanford, Vice President of the John Howard Society of Nova Scotia.
We typically have problems with the video conferencing. I’m hoping today that we won’t. Ms. Halpern, you have the floor first.
Emma Halpern, Executive Director, Elizabeth Fry Society of Mainland Nova Scotia: Thank you very much. I apologize for having to come in by video conference. Timing was such that I’m still here in Nova Scotia. But thank you for this opportunity.
Good afternoon, senators. As Senator Bernard has indicated, I’m the Executive Director of the Elizabeth Fry Society of Mainland Nova Scotia, and I’m also a regional advocate for the Canadian Association of Elizabeth Fry Societies in the Atlantic region.
The Elizabeth Fry Society of Mainland Nova Scotia addresses the systemic issues that criminalize women and girls in our province. We have three main pillars of work. One is housing, and we actually run a house for women transitioning out of prison and jail. We have supportive programming, and we also do legal advocacy and support.
Our clients are some of the most marginalized and vulnerable women in our region. They have very high rates of trauma, mental health challenges and addictions. The vast majority of the crimes that they have committed are low level property offences and non-violent drug offences. Many of the women we work with struggle with homelessness, child protection involvement, insecure employment and encounter systemic racism and discrimination on a daily basis.
As a regional advocate for CAEFS,the Canadian Association of Elizabeth Fry Societies, I also monitor the conditions of confinement at Nova, which is the Atlantic federal prison for women, and also in the provincial jails. In this role, I am inside a prison or jail on almost a weekly basis, and I spend a significant time with women who are imprisoned and who have recently been released. My remarks today are borne out of my experience working closely with the women we serve. I will do my best to do justice to their experiences and to identify the primary issues that they raise with me.
I will cover three main topics. The first is the overrepresentation of Indigenous women that we see in our prisons and jails. The second is our call for a ban on the use of segregation and the need for alternatives, specifically for those with serious mental health issues. The final one is an Atlantic issue, which is that we have the highest rates of parole revocation in the country.
Indigenous women are being incarcerated at an alarming rate in Canada, and I know you are aware of this given some of the previous witnesses who have come before you. This is due in large part to the failure to address the social and economic marginalization experienced by Indigenous peoples as a result of residential schools, the Sixties Scoop and an ongoing legacy of colonialism. The Truth and Reconciliation Commission of Canada, at Call to Action 30, called upon federal, provincial and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade. I believe that this is truly an essential human rights issue and requires a multifaceted approach. I am going to provide a few suggestions.
First, in my experience, I think there needs to be mandatory education for judges and even some Crowns who are responsible for sentencing Indigenous people. This education needs to include the historic and current realities for Indigenous peoples and the impact of incarceration on Indigenous communities.
Second, also to do with sentencing, our justice system needs to better understand the experiences of Indigenous people in our country. This can be done through the mandatory use of Gladue reports and properly resourcing access to Gladue reports in our country. This is consistent with section 718.2(e) of the Criminal Code.
Finally, even when judges do take into account Gladue factors, because of the introduction of mandatory minimum sentences, that has increased the representation of Indigenous women in prison because it denies judges the ability to consider lower levels of culpability in relation to an offence. This is particularly noteworthy in instances where an accused is party to a spouse’s offence, which we see frequently with our clients, and where the accused is acting in relation to an offence against oneself or their child.
For those who are already in prison, sections 81 and 84 of the Corrections and Conditional Release Act enable the transfer of resources to Indigenous communities so that individuals who would otherwise be in a federal prison can actually return to their community. These sections of the act support reintegration in ways that can benefit both the individual and the community more broadly. Unfortunately, however, these sections have been significantly underutilized. CSC has an opportunity to bring about real change for Indigenous prisoners by properly implementing sections 81 and 84 of the CCRA.
My second topic is segregation. As I’m sure you are aware, segregation is both a status and a place. You can be segregated on your cell in a living unit and have your liberty significantly restricted, but it is also possible that you can be put in a designated segregation cell and given very little time out in a common room area. Both of these describe a state of segregation.
All of the women I have worked with who have spent long periods of time in segregation suffer from debilitating mental health challenges, every single one. As long as we have segregation, it will be used as a default for those who are considered difficult to manage. In my experience, those who are deemed difficult are those who have significant mental health issues, and segregation dramatically worsens most mental health conditions. It’s not treatment, and there are other options. Section 29 of the CCRA actually allows CSC to transfer individuals with mental health issues into health facilities that are designed to provide the support and care that they need. But again, section 29 is being underutilized.
Maximum security units in federal prisons for women are really a form of segregation, in our view. Women in maximum security are subject to very restrictive punitive conditions differently than men and are isolated from the general population on small, highly monitored pods. Women are generally imprisoned in these pods for up to 23 hours a day. This is a form of segregation, and women can spend years in this setting.
The final area I’m going to touch on is parole revocation in the Atlantic. We do have some of the highest rates of those who are out on parole being revoked and sent back to complete their sentence in a prison. Why is that? In our view, it’s because there is a significant lack of funding for supports and resources available in the communities in the Atlantic. We have clients in some of our communities who are waiting 343 days to get a mental health appointment. I work closely with clients who are waiting weeks and weeks for addiction treatment, even just to get into detox. Women coming out on statutory release can sometimes have absolutely nowhere to go and end up homeless and then, of course, back in their crime cycle.
We have extremely limited employment opportunities, and that’s even more difficult when you have a criminal record. Day parole and full parole are rarely available in one’s home community, particularly for women, because you have to go to a halfway house and those are only in some of the urban centres. This is despite the fact that there actually are provisions in the CCRA that would allow women to go home to their families.
At Elizabeth Fry Society, we see what women need every day to be successful in their communities. They need trauma counselling, mental health services and addictions treatment. They need adequate and good access to health care. They need safe and secure housing, and they need access to employment, which may require a record suspension that can be very much out of reach. They need wraparound services, mentorship and community-led navigation. Ultimately, they need supportive nurturing connections to their family and friends and to caring organizations. That’s what they need. They don’t need imprisonment.
The Chair: Thank you very much, Ms. Halpern. We will hear now from Mr. Sanford, and then we’ll open for questions.
Fred Sanford, Vice President, John Howard Society of Nova Scotia: Good morning, senators. Thank you for the opportunity to speak to you today. As Senator Bernard has mentioned, I am the vice-president of the Nova Scotia chapter of the John Howard Society
To give a picture of the population and justice infrastructure of our province, Nova Scotia is the seventh most populous province in Canada with an estimated 957,600 residents as of 2017. It accounts for only 3 per cent of the population of Canada. The population density is approximately 17.2 persons per square kilometre. Roughly 60 per cent of the population live in rural parts of the province. There are approximately 2,000 police officers in the province, almost evenly split between municipal forces and the RCMP. Nova Scotia has four provincial adult detention centres and one youth detention centre. There are also two federal detention centres located in our province.
Correctional Services is one of the core business areas of the Nova Scotia Department of Justice. Correctional Services is responsible for the administration and operation of community and custody-based programs and services for adults and young persons in custody. Within the Correctional Services core business area, there are two programs, community corrections and correctional facilities.
The core businesses for community corrections are to provide information to assist the court in sentencing processes, to administer and supervise community-based sentences of the court, to assist the court by diverting offences from the court process through the Restorative Justice Program and to provide programs that address dynamic criminogenic factors to assist with the successful reintegration of offenders into the community.
The core businesses of the correctional facilities program are to provide safe and secure custody, direction and control of persons in custody, and to provide programs that address dynamic criminogenic factors to assist with the successful reintegration of offenders into the community.
Despite the fact that the crime rate in Nova Scotia has been steadily declining over the past five years, admissions to adult correctional facilities has remained relatively stable. The average daily count of persons in custody in 2017 was 489 as compared to 492 in 2012. The average length of stay in sentence custody has remained unchanged over the past five years, at 40 days.
The youth incarceration rate has shown a steady decrease over the past five years, from an average daily count of 49 in 2012 to 23 in 2017. The average length of stay has remained relatively stable, from 54 in 2012 to 53 in 2017.
The federal facilities consist of the Springhill Institution, a medium-security facility located in the town of Springhill, Nova Scotia. It opened in 1967 and is the largest fenced correctional facility, with a rated capacity of about 450 inmates. This facility is consistently at or near capacity.
Nova Institution for Women is a multilevel medium, minimum and maximum security facility. It is located in Truro, Nova Scotia. It opened in 1995 and consists of self-contained living units that have the capacity to house 70 women inmates and also is consistently at capacity.
The John Howard Society of Nova Scotia is a provincial organization originally formed in 1950, comprising and governed by people whose goal is to understand and respond to problems of crime and the criminal justice system. Currently, our society has a head office in Halifax with two satellite offices located in central and northeastern Nova Scotia with a total of nine employees, an executive director and a 14-member board of directors.
The central and northeastern offices are contracted by the Department of Justice to administer the provincial restorative justice programs. Other programs undertaken include community work placement, community maintenance program, record suspension, parole supervision and community assessments. We also have a strong volunteer corps which provides support for inmates in areas such as a yoga program, gardening, book club, employment support and community navigation.
As with many nonprofit organizations, one of our major challenges is sustainable funding. We are very dependent on grants and fundraising, and our program service delivery can become extremely compromised due to a lack of funds.
We are aware of many challenges facing our corrections systems, both provincially and federally. In the 10 years of the previous Harper government, a tough-on-crime approach was taken, arguing that sentences had become too lenient and that the rights of accused and convicted persons came at the expense of victims and law-abiding citizens. During its decade in power, the Conservative government enacted legislation to make prison conditions more austere, imposed lengthier incarceration periods, significantly expanded the scope of mandatory minimum penalties and reduced opportunities for conditional release, parole and alternatives to incarceration.
Several negative impacts on the prison population were incurred over this period. One is the over-representation of Black and Indigenous prisoners in the system. While comprising about 4 per cent of the general population, Indigenous inmates now represent 25 per cent of the federal prison population. Black inmates comprise 10 per cent of the prison population but just 3 per cent of the general Canadian population. The number of women prisoners, especially Indigenous women, now representing 30 per cent of the women inmate population, has also dramatically increased.
Similar trends have occurred in the provincial system. In Nova Scotia, Aboriginal persons make up 6 per cent of the population but accounted for 10 per cent of the admissions to sentence custody. African Nova Scotians make up 2 per cent of the population but 14 per cent of admissions.
Also, over the period in question, access to conditional release and parole has decreased significantly. The CSC and the Parole Board of Canada became more risk averse and the accountability of each institution diminished when making decisions about conditional release.
Funding streams for Correctional Services have also changed since the increased emphasis on tough-on-crime. Although the overall costs for funding Correctional Services have increased, the majority of funding is directed towards security investments. Funding for anything other than security, such as core programs, mental health services, harm reduction initiatives and education and employment initiatives appear to be less of a priority during a tough-on-crime era.
In Nova Scotia, from 2012 to 2017, gross expenditures increased by approximately $11.1 million, or 19 per cent, despite admissions to facilities not rising significantly. The bulk of this funding has been directed towards increased staffing and security initiatives. More resources need to be directed to effective aftercare for inmates. Successful reintegration efforts will require more programs addressing housing, literacy, employment and addiction issues.
Another area where these changes have had a significant effect has been on the support and treatment for inmates with mental health issues. Funding for community mental health services has seen a steady decrease, resulting in persons with major mental health issues being introduced into the system. Research has shown that mental health issues cannot be successfully treated in prison. They need to be addressed in the community. Prison is a tough place to be weak. Mentally ill people are picked on and bullied until they have to be isolated, which leads to the issues we have seen with solitary confinement. Cases such as Ashley Smith and Edward Snowshoe highlight the seriousness of this issue.
The recent court decision in British Columbia that was the result of the application that was brought forward by the B.C. Civil Liberties Association and John Howard Canada will assist greatly in bringing forward much-needed improvement in the treatment of vulnerable persons.
We recognize that the current government is working to make improvements to the system, but we could like to stress the importance of new legislation to impose time limits and oversight on solitary confinement and the need for the investment of significant funds towards the treatment of mental illness. We all have to work together to address the issues that are facing us in our current correctional systems.
Organizations such as John Howard, with appropriate funding and support, can become key partners in bringing about the changes that are required to ensure persons within our penitentiary system are treated fairly and humanely and increased focus is placed on reducing recidivism for the benefit of all our citizens. Thank you.
The Chair: Thank you, Mr. Sanford.
Senator Ataullahjan: Thank you both for your testimony. I have a couple of questions for the Elizabeth Fry Society. Segregation rates are higher in the Atlantic region. Has the situation changed at all since the new rules were adopted in August of 2017?
Ms. Halpern: I can, again, only speak for the women’s institution. I do not go into the men’s and don’t have a great picture of the experience for men. I spend quite a bit of time in Nova. What I would say is I have definitely seen fewer disciplinary longer dates for individuals who are there under disciplinary segregation. However, with administrative segregation, and specifically relating to mental health, I am not seeing a change in terms of the numbers of days that the women whom we work with are spending in segregation. What is causing me concern is that those are the women we work with who we see spending long periods of time for things like self-harm, being suicidal or struggling with other complex mental health challenges.
Senator Ataullahjan: So there is no special help available for those women? What are you told when you’re there? If you ask the questions, what is the response that you get?
Ms. Halpern: Well, certainly there is some access to mental health care. There is a psychologist who is there. There are social workers. There are appointments available. The women are supposedly at triage, and they are. Some women will get more access to mental health appointments than others. Those are the appointments they would be able to receive inside.
I worked closely for a number of months with a woman who was recently transferred. She spent many weeks in segregation and has recently been transferred to the regional psychiatric facility in Saskatoon, Saskatchewan. So that is another option. There is Pinel and regional psychiatric.
Now, Institut Philippe-Pinel in Montreal doesn’t take cases where women have faced violence and so when someone acts out, for example, and maybe destroys property, that can limit their ability to go Philippe-Pinel, which is unfortunate because it is more of a hospital setting, a treatment facility, and I have seen some success with the women who have gone there.
So those are the options available. There are mental health appointments available inside. Then there are, potentially, transfers, either voluntary or involuntary transfers.
We are pushing, of course, for the use of section 29 to actually get women out to a forensic hospital. You can actually transfer, through an agreement with the province, to the provincial forensic hospital. That’s an option. We don’t see it happening, but it could be an option, or to other places that are designed to provide mental health treatment. As my colleague, Mr. Sandford indicated, that is not the design of our federal prisons. They are not psychiatric facilities. They are not designed to provide mental health treatment. Therefore, segregation is often used as a form of behaviour management, ultimately. In my observation, and with the women that I’ve worked closely with, it makes things worse. When you are struggling with severe depression and then locked in a cell, often for 23 hours a day, even if you are getting access to a mental health appointment once a week or even every couple of days in a best-case scenario, many of the factors that are causing the mental health triggers are not being addressed and are often being worsened by the conditions that you’re in, lack of human contact, for example, and the experience of extreme isolation.
Senator Ataullahjan: Mr. Sanford, I was going to ask you about the status of the mental health care available. You testified that you feel that mental health issues cannot be treated successfully in prison. It seems, just listening to the testimony, that if there’s an issue or there’s a problem, if someone has serious mental health issues and they don’t know what to do, it seems they put them in segregation, which is not the answer. What can be done, and what would you like to see changed?
Mr. Sanford: Well, like I said, prison does nothing to help the mental health issues. If anything, it worsens the situation. In Nova Scotia, over the last number of years, we have been running a pilot project for a mental health court, which has been successful somewhat in diverting people from the prison system and having them go for treatment and other things in the community. Unfortunately, that’s just a pilot project in Halifax right now, but it is proving to be very successful. Also, in Halifax, one of our newer facilities located in Halifax does have a forensic unit attached to the prison itself, so there is some mental health treatment available. However, not nearly enough.
We had a tragic incident in Halifax a number of years ago where a person, after an interaction with some guards at the Central Nova Scotia Correctional Facility, ended up passing away in the prison, and a judicial inquiry was held in Nova Scotia. It was determined that he should never have been in prison in the first place. He was dealing with severe mental health issues, and he should have gone for treatment instead of prison.
I would say that twofold is trying to divert people at the front end so that they don’t end up in the system, and then having much more support and treatment and the ability to have them actually released from custody and treated in the community.
Senator Ataullahjan: The committee travelled to the Grand Valley institution where they had a program called Walls to Bridges, which provided women inmates with an opportunity to take university courses. We heard how successful that was and that those who took those university courses were less likely to reoffend. What kind of educational courses do you have? Is there anything, and how successful are they? To either one who would like to answer the question. In the Maritimes, is there the ability for the prisoners or the inmates to take courses, university courses? We heard it was a great success. We’ve heard testimony that those who did take those courses are less likely to reoffend.
Ms. Halpern: I can speak to the experience here at Nova and also a little bit with our provincial jails. As far as I’m aware, there are more programs provincially. With the Elizabeth Fry Society, we do offer a bursary program for courses and help to fund courses for women who are interested in taking a range of classes. In fact, I’m working with a woman right now who is applying to go to law school and is interested in that and has put forward a bursary application to help her with some law school courses.
I agree with that statement that there needs to be more access to education, and that is a very positive way to help to support reintegration and address recidivism because certainly, education can help to connect you into the community and provide some of the needed supports around employment and things like that.
We don’t have a similar program to what is available at Grand Valley, so it is somewhat financially dependent. There are courses available through the school. This is, again, at Nova. You can apply to outside university courses, but funding can sometimes be prohibitive.
Now, provincially, there is a new program being started by our community college, and they’re developing an initiative where those in our provincial facilities can actually access courses through the community college and continue into those courses once they leave and, in fact, kind of complete degrees. They are even looking at some sort of wrap around services to look at what all the things are that someone would need upon exiting jail to be successful going through a full program at the community college, so even looking at things like housing - obviously, when you have things like your housing, you can complete your education — funding and all of that. It’s quite a comprehensive program. It’s just new and coming about now.
I think we need to see more of that and more partnerships with universities and community colleges and more opportunities to start a program inside but ultimately continue to be out in the community when you leave, and also through things like temporary absences. There are avenues that you could access to be able to go out to take a course, to be able to go out and attend an exam and things like that. So really, thinking creatively about how to support that because I agree completely that it’s important for reintegration.
Senator Hartling: Thank you both for being here. I’m from the Maritimes, so it’s nice to have some Maritimers with us. Next week, we’re going on our prison mission in Atlantic Canada, and we will get to visit Nova and Springhill as well.
I have a question around parenting. In my former work, I worked a lot with parents, and we did get a lot of referrals from Nova. Parents came out to take some parenting classes. I’m just wondering, in Nova, are children staying there too? Is that part of it?
Ms. Halpern: Yes, there is a federal Mother-Child Program in all of the federal prisons for women. If you have a child who is under the age of four, you can apply to have your child with you through the Mother-Child Program. I can’t speak to the total national numbers right now, but I can tell you that, about a year ago, I did a scan across Canada, and Nova had the highest number of women participating in the Mother-Child Program at that time. It was three moms and three children. So it is underutilized again.
There are complex reasons for that. Sometimes — here anyway at Nova — we struggle because you have to have an approval through the department of community services, through child protection, and there can sometimes be a lengthy wait time for the social workers to come in, to approve the placement and so on. There are some sort of procedural challenges, sometimes, to actually accessing the program.
That said, I’ve worked very closely with a couple of mothers, three of whom gave birth while they were at Nova and were able to, following the birth of their child, apply to for Mother-Child and had the baby stay with them.
We also have access to birth doulas who come in and work with the mother prior to the birth of the baby and then for the six weeks to two months following the birth of the baby. So that’s been a new introduction at Nova.
The program is very successful for those who can access it, and we see great results in terms of the connections between mothers and babies and the longer term success in terms of keeping your child with you and not having your child removed through child protection, which has happened and can happen in instances where the child is removed and can often go into care if the child cannot be with the mom in the program.
Senator Hartling: Mr. Sanford, are you aware if there are any supports for dads in Springhill or other facilities? We started an initiative in Dorchester, Support for Dads, because it’s important that both parents have support when they’re incarcerated. Do you know if there’s anything in Springhill?
Mr. Sanford: No, senator, I’m not aware if there is such a program there.
Senator Hartling: There is one in Dorchester. Some dads from Moncton go there and they say it’s very successful. Dads do want to talk about their absence from their children and how to keep in touch. As far as you know, nothing. Maybe we’ll investigate that more when we get there.
Senator Andreychuk: Thank you for coming before the committee. Ms. Halpern, you were talking about the Gladue case, and you talked about some complications. Could you repeat that? I didn’t quite understand what you were driving at with that point.
Ms. Halpern: Following the Gladue case and the inclusion of section 718.2(e) in the Criminal Code, there is the ability to request a Gladue report, on behalf of the defence, if your client is an Aboriginal person. Those are very detailed reports that really look at the history of the individual, their experiences, their family history with residential schools, the experience in their community, the challenges they may have faced as individuals, and their families and histories. They’re lengthy and very comprehensive reports.
Here in Nova Scotia, we have the Mi’kmaw Legal Support Network that is funded at least in part to provide that service, and they will work with someone and do this comprehensive research. That report then forms part of the decision-making process at sentencing to look at how best to ensure that incarceration is, as per that section of the code, an absolute last resort and that community-based appropriate resources are looked at to support that person for rehabilitation, reintegration and so on.
So the Gladue report is an essential piece to understanding who that person is, what their community experiences have been and making sure that the sentence really is appropriate for that individual.
One of the challenges is that, because they are not mandatory, they aren’t done on a regular basis. I think in Nova Scotia we have some of the highest numbers of Gladue reports being done for Indigenous people, lower numbers in other parts of the country. And, of course, they are expensive. So it’s a resourcing issue as well. The Mi’kmaw Legal Support Network will say they struggle, even when the reports are being requested, to get them done because they aren’t properly resourced to be able to ensure that those reports are getting written. I would say they are essential in terms of sentencing Indigenous people and in really helping us to meet the Call to Action 30.
More generally, there are Gladue factors that are to be considered. There are factors laid out in the Gladue case that we look at and that help us understand the complex circumstances for an Indigenous person coming before the court, and those factors should be considered regardless of whether there is a report and they can and should be brought forward by the defence. But even that isn’t happening all of the time. Those were my remarks.
Senator Andreychuk: Are the resources available that a particular person needs, or are the Gladue reports really taking into account what exists?
Ms. Halpern: That’s an interesting question. The answer is that you’re absolutely correct and the resources are not entirely there. We do need more culturally appropriate supports and services in our communities that would address all things, from health and mental health to housing and reintegration supports. We need better resourced community organizations that serve Indigenous communities, African Nova Scotian communities and racialized communities in general, and that is often a challenge. A challenge that we face at Elizabeth Fry Society as well is the lack of the availability in our communities of the needed supports and resources, and specifically culturally appropriate supports and resources.
We’re very fortunate to have Mi’kmaw Legal Support Network. They do an incredible job, but they are definitely overtaxed and challenged to meet the needs that they face on a daily basis.
Senator Andreychuk: Part of the problem with incarceration is that it’s supposed to be a last resource, but sometimes it’s the only resource when you weigh the protection of the public vis-à-vis the others. I put it to both witnesses: Have the people that you are dealing with — certainly from my area in Saskatchewan it is the case — already had contact with social services? They’ve also had difficulties in school, et cetera. Are you seeing a curve that the preventive services, the early warning services, are not there and they find themselves with the mental health, with the violence, with whatever in the correctional system? Is that being addressed in any unique way in Nova Scotia?
Mr. Sanford: It certainly is the trend. Studies have shown that people with lower education are more apt to end up in the system, and they generally have had contact with the community service realm. Mental health issues and addiction is a big one now. A large proportion of the people coming into the system have addiction issues.
I come from a policing background myself, and especially with people with mental health issues, there are just not the resources in the community to deal with them, and they end up in the justice system and going to jail basically because there is no other appropriate method to deal with them. We have to remember that the safety of the public has to be the genuine concern.
In my opinion, what is really needed, especially with the mental health issues, is more support in the community to catch these people and deal with them before they get to the point where their activities end in the justice system. I’m sure studies have been done that would help to identify the persons in our society that are at the most risk to come into contact with the justice system, and more early intervention would benefit both sides, the public and the people coming into the system.
Ms. Halpern: I would agree. With the Elizabeth Fry Society, I would say that I know what is needed to ensure the women we work with are not going to prison and jail and getting what they need in the community. It’s just frequently not there.
Last week I was working very closely with a woman who has struggled for many years with addiction, and she’s looking for treatment. We spent 50 minutes on the phone with a mental health crisis line trying to get her some support before we had to hang up. There are so few services available. We couldn’t even get her into a detox program in the hospital in any immediate way. We are waiting weeks for an appointment. So it is a lack of community resources.
The women we work with have tremendous amounts of trauma in their lives from their childhood and ongoing and are not receiving the supports that they need to be able to be successful, in order to work and to be in our communities. That’s where the gaps are and that’s where we need to really be focusing our time and energy in our communities.
Senator Andreychuk: I was going to turn to Mr. Sanford. I hope I won’t offend you by saying this. I think you have been around longer than Ms. Halpern, and you might remember the 1970s when we looked to how we were leaving people in locked institutions because of mental health issues. We built large institutions and there was a great movement to free people from these institutions and say that they should be integrated into the community, and they were. The problem was there weren’t any resources, including housing, for these people and they ended up on the streets. It was a North American issue. If you looked at the people on the streets after that, they really needed more support than they were getting. They were left to their own devices in many cases. The lucky ones got into institutions.
It seems to me that’s part of the symptom we have in our jails now, because when they were on the streets with none of the resources that we as governments in Canada promised them, they found themselves in trouble on the streets, and that generally led to criminal behaviour. We’re now asking for mental health again. How confident should we be that they’re going to be there?
Mr. Sanford: I would agree with you 100 per cent. I do remember it very well when the move was to get people out of the institutions, and in many cases it was the best thing for some of the people involved. Over the years, the resources that were there have dwindled and now, you’re right, they find themselves in the community without the skills or the resources to adapt successfully in the community.
We’ve taken some positive steps in Nova Scotia. We have formed what is called a mental health mobile crisis team, which is a combination of mental health clinicians and police officers that actually work in the community and try and do early intervention and get people for treatment to divert them from the system, but they can only do so much because they don’t have the facilities or the resources to take these people to.
Personally, I am not overly confident that the resources are there in the community. If you talk to law enforcement, they say dealing with mental health issues is probably now one of their number one issues in policing. There are so many with mental health issues in the community and they have no place to take them. Many times, when dealing with a person with known mental health issues, the police will charge them criminally in the hopes of getting them into the courts and perhaps getting a court ordered assessment and getting them some help that way, but that is at best a temporary fix. Unfortunately, they don’t get the long-term commitment from the community that they require.
The Chair: I have a very short question for both of you. Our committee has heard that some community-based organizations have difficulty gaining access to some of the federal institutions in their communities. I’m wondering if this has been an issue for either of your organizations.
Mr. Sanford: Speaking from my experience with John Howard Society, we have unfortunately had very little contact with the federal institutions in the province, aside from the main one in Springhill. It could partially be somewhat our fault for not making more of an effort. Geographically, it’s a long way from our head office. But that’s just speaking from John Howard. I can’t really speak specifically to anything in other community organizations and their ability to access.
Ms. Halpern: We have quite fulsome access to both the federal and the provincial jails and prisons here, and so we’re very fortunate in that regard. In fact, as a regional advocate for CAEFS, federally we get to go to every space. We do monthly visits and go into the segregation cells, we go to maximum security, we go into the houses and try as best we can to meet with all of the women who are inside.
The only thing I would say of which we do live in fear is that that will somehow be eroded to some degree or we’ll lose that because it is such an essential oversight for us to be there and speak to the women regularly. More organizations do need that type of access. It is tremendously important for Canada, ultimately, that community organizations can have that kind of relationship inside. So thanks for that question.
The Chair: Thank you both for your testimony this morning. We appreciate you taking the time to spend with us.
For our second panel today, we are pleased to welcome, as individuals: Claire McNeil, who is a lawyer with Dalhousie Legal Aid Service and with Dalhousie University; and Vince Calderhead, a lawyer with the firm Pink Larkin. Welcome. Ms. McNeil, we will have you start first, followed by Mr. Calderhead.
Claire McNeil, Lawyer, Dalhousie Legal Aid Service, Dalhousie University, as an individual: Thank you for inviting us here today to come to speak to you about this really important and very prominent issue in terms of human rights in prisons and mental health issues.
I would say, in terms of my background, I’ve worked in legal aid for many years, and, in the course of doing that, I’ve been mostly concerned about trying to help my clients to access supports and services in the community. The focus on prisons is something that I’ve become involved in more latterly, and I don’t know whether that’s an indication of need or where people are coming from, that they’ve been more kind of reaching from prisons for legal support in terms of indicating their human rights, particularly, in the last few years, around the issue of solitary confinement. That’s where I’m going to start, and that’s what I’ll speak about for the most part.
What I would say is that I’ve represented people in both provincial and federal institutions on this issue, and it seems to be fairly similar in terms of the areas. I’m not talking about disciplinary administrative segregation; I’m talking about people being separated, segregated, isolated from the general population for reasons that have nothing to do with their own actions but rather administrative needs or institutional needs and convenience.
We have been successful. A young man by the name of Dylan Gogan was in particular very instrumental, but it’s been a difficult thing because it’s one of those issues that just seems to reappear. Obviously we’ve had the Arbour commission and the Ashley Smith inquiry. We have now had two decisions from both Ontario and B.C., so we know that things are changing.
The question for this body is what the role of the federal government is in reforming this area of the law. What I would say, to start with, is that there are international obligations, and those obligations are derived from conventions that Canada is a long-standing signatory to and has ratified. They are very clearly interpreted by various documents, including, most recently, the Mandela Rules from 2015. The federal government could do quite a bit just by implementing those international commitments in a direct kind of way so that individuals could go to court and seek direct protection of their rights based on those international conventions. Right now, you have to go through the vehicle of using a Charter right or a habeas corpus application and then suggesting that those constitutional protections should be interpreted in a manner consistent with the international convention. That’s something that this body could think about as a way of addressing, more directly, these issues that seem to arise again and again. We see them in the context of institutions.
On the equality rights side, I’m going to just talk about people with mental disabilities in prison. Part of the protection of their interest has to be the accommodation of their needs in the prison setting to be a truly human-rights-compliant approach. One of the things that the Mandela Rules points out is that people with mental disabilities should not be placed in solitary confinement. Yet, we know that, in Canadian prisons, that happens routinely. In fact, it’s probably disproportionately people with mental disabilities that find themselves in those circumstances. That’s certainly true from my experience as well.
While we would all agree that, for the most part, we have done away with institutions, the poor houses, the institutions for persons with disabilities — we have seen that in Ontario where those institutions have been closed — within the criminal justice system, we are relying on institutional responses still, in the form of prisons and penitentiaries. So the question is: How do we ensure that these institutions don’t violate people’s human rights or add to their disadvantage? Right now, I would say that those institutions are not doing very well. I’m sure you’ve all read the B.C. civil liberties decision that came out this January. It’s a really stinging indictment of what is going on in federal prisons, and I would say the same is true in provincial institutions as well.
I was just going to speak briefly about the situation of youth with mental disabilities. I’ll give you a concrete example in Nova Scotia. In a recent case, there was a form of administrative segregation used with respect to a youth. It was indefinite. It was extreme. There is a decision from the youth court that quotes a witness as saying they have never seen anything quite like it used before. It’s remarkably similar on its facts to what started the incident at the Kingston penitentiary that Justice Arbour looked into in the sense that there was an assault by inmates on guards that resulted in a single youth being placed in an adult facility for over a year where he had no contact with anybody or any other inmate. The only contact he had was visitors and the prison guards. So the issue of administrative segregation even on the youth side is alive and well. It’s something that we really need to be conscious of.
In terms of the federal institutions in Nova Scotia, we have a recent decision from January 2018 talking about administrative segregation in that institution where, again, the judge said decision makers can never allow administrative convenience to trump lawful liberty interests and finding that the institution had acted unlawfully. There, it was a case on the facts where the institution decided they were going to segregate and they had done this for many years. They segregated persons awaiting transfer to another institution where they had been classified and had to be transferred, so they found themselves in a form of administrative segregation. The court determined that was unlawful and the practice, as I understand it, has stopped but the problem seems to be remarkably similar as we see even currently.
I think if we look at the international rules, I’m going back there one last time to say it’s clear that solitary confinement is to be used as a last resort, only in exceptional circumstances and for as short a time as possible, and there is to be an independent review by a competent authority. If we take those as our principles, it’s pretty well set out as to what Canada has committed itself to internationally, at least. It should be prohibited in the case of prisoners with mental or physical disabilities, and it should be prohibited in the case of children as well. Again, if we go back to the examples I have given, those were all cases where individuals had both mental disabilities and/or were youth. If we just had that as a single kind of initiative here in Canada, I think it would address many of the problems that we see in the use and abuse of administrative segregation in prisons.
I was going to speak about section 29(b) of the Corrections and Conditional Release Act, but I will leave that to Mr. Calderhead. Those are my comments, subject to any questions.
Vince Calderhead, Lawyer, Pink Larkin, as an individual: Thank you very much. I’m someone who has been a legal aid lawyer in Nova Scotia, a staff lawyer working in the staff system there, for 31 years. During that time, I did family law, criminal law and social justice law and so have pretty seen the gamut.
In the last year, I’ve gone into a specialized practice where I’m working exclusively on pro bono social justice litigation. I’ll mention to this committee that part of that is that Ms. McNeil and I are actually involved in what I feel to be a mammoth human rights case against the province of Nova Scotia having to do with the institutionalization of people with mental disabilities and the lack of supports and services available to them. We have just completed two or three weeks of hearings. We are going on in June, August and September, and January and February of next year, all of this challenging the supports and services.
With that background, let me pick up the invitation from Ms. McNeil and speak more broadly about what I see, as a human rights lawyer, as some of the issues that she and the previous witnesses have spoken to. As I see from the submissions made to Parliament and to this committee and available generally, these are the kinds of issues that now seem quite common and quite standard in the evidence that you hear as well as the reports you read.
I’ll start by saying that since the 1950s and 1960s, provinces and territories have made remarkable progress in terms of deinstitutionalizing people with disabilities, and particularly mental disabilities. Modern-day psychiatric drugs and a combination of more modern approach has resulted in provinces deinstitutionalizing many people with mental disabilities.
The problem, however, is the one that we’re all familiar with, and that is to say the deinstitutionalization has not resulted in the required supports and services for those people when they go to be reintegrated in the community, and that has really been for a couple of reasons.
One is that deinstitutionalization movement has come face-to-face in the last 20 or 30 years with provincial and federal austerity, that is to say provincial social services and programs have been cut back repeatedly.
The second part, and this is a federal side of it, is that in the mid-1990s, the federal government changed the way it cost shared social services with the provinces, changing from the Canada Assistance Plan, which was largely an open-ended 50-50 cost sharing, to the Canada Social Transfer, which is a block-funded program, the net result of which is that far less transfer and far less by way of social services has been made available to the provinces.
The result is really clear and it’s what you hear about all the time. You have a staggeringly high proportion of people with mental disabilities incarcerated federally and provincially. It’s really quite staggering. The levels have been the subject of UN human rights treaty bodies. I presented to the UN Human Rights Committee in 2005 when it’s concluding observations commented on the unnecessary incarceration and institutionalization of people with disabilities.
More recently, the UN Committee on Economic, Social and Cultural Rights in 2016 also commented on the unnecessary incarceration and institutionalization of people with mental disabilities. Why? The committee identified the lack of supports and services.
So this is something that the previous witness and the previous panel spoke about, and I’m sure dozens of others have provided testimony to this committee about it.
What is to be done? Well, I think, concretely, this committee could urge strong recommendations around the use of section 29(b) of the Corrections and Conditional Release Act.
Specifically, it contemplates — that is to say, Parliament has already said that it contemplates — and has taken up this issue of people with mental disabilities disproportionately represented among the incarcerated in Canada and said in section 29(b) we can imagine agreements with the provinces and territories that would result in the transfer of people from federal prisons to provincial hospitals and facilities.
When I make inquiries about the status of those agreements, well they are not there. They are not happening. That’s not a legislative problem. That’s not a policy problem in the sense that the legislative framework is already in place and Parliament’s will has been expressed. It is a direction from the executive branch to Correctional Service Canada to say we want these agreements done, both in terms of broad scope agreements as well as one-off agreements for particular prisoners.
Given the federal cutbacks to provincial transfers for social services from the mid-1990s, given so much of this is criminal law that effectively vacuums up — and I hesitate to use that term — the most disadvantaged in our society and results in their incarceration, I think it’s incumbent on the federal government to use its spending power to propose these kinds of agreements contemplated by section 29(b). Say to the provinces, “We’ll pick up the cost. We want people out of federal prisons and we want them in supportive rehabilitative settings in the provinces.” That does not necessarily mean institutions. It could be community-based settings, which the evidence shows is better.
My submission to you is to move beyond the anguishing about the disproportionate representation and direct Correctional Services Canada to say we want those agreements contemplated by Parliament to actually be completed and implemented. Thank you.
The Chair: Thank you very much. Now we’ll have senators’ questions.
Senator Ataullahjan: Thank you for being here today and for your testimony. Ms. McNeil, you talk about youth being in segregation. Does that happen often? You do go into the prison systems and you interact with the prisoners, the guards, everyone. Is there any realization that segregation is very harmful to adults, so how harmful is it to a young person? Do you see this often? Are you seeing a lot of youth with behaviour problems or they do not know what to do other than put them into segregation? From the testimony we are hearing, that can have a lasting impact on the young person.
Ms. McNeil: To put it in context, things have changed in the area of youth justice in the last 20 years, and particularly in Nova Scotia, which is what I know best. I can say for sure that the reliance on custodial options has dropped dramatically in favour of diversion and other community-based options. When you go to the youth facility, it used to be upwards of 90 and sometimes more youth in the main youth facility there. Now it’s down around 20. But those who are there have typically been — I don’t represent everyone, but we hear from within the system — convicted of more serious crimes, and there are also people with, in my view, other complex needs in terms of mental disabilities.
I would say yes, it is probably very much the exception, but the fact that it still happens tells us that there is a problem. It should never happen. The solution is not necessarily individual recognition. I think these are systemic problems, the use of administrative segregation or solitary confinement.
If we had an inquiry for every time it happened, I’m sure we would find patterns, but we have had enough of those and we can see that they do follow a certain trajectory. There is usually some incident within the institution and then the decision making is by the very people who want to exclude that individual from the institution. We need more independent oversight in those kinds of situations rather than allowing the head of the institution, which is typically how it works right now, to decide where that person will be housed.
I don’t know if that’s helpful but yes, I would agree it tends to be the exception for sure.
Senator Ataullahjan: Is there any special help available to young people when they are put in segregation? For their mental health needs, are there any special programs?
Ms. McNeil: Again I’ll use the recent example to say it was actually the opposite. This young person was under what is called an intensive rehabilitative custody and supervision order when he was placed in administrative segregation, i.e. there was a clear understanding of his mental health needs. In fact, for the more than a year that he spent in administrative segregation — it was indefinite. The fact that it came to an end was an exercise of discretion by the provincial director. That is how the law is written; it’s up to the provincial director of corrections to decide where to place people and the youth court judge had no jurisdiction to decide. It was the opposite. The supports and services that, in theory, had been put in place for him while in the institution, while in custody, were effectively taken away from him when he was placed in administrative segregation.
Senator Ataullahjan: Mr. Calderhead, I would like to ask you about the case you currently have where you are representing a woman with mental health disabilities concerning her right to supported housing. Are there any lessons that we could learn from that?
Mr. Calderhead: One of the tragic parts of the history of that case is that this was a young person with intellectual disabilities who has essentially been institutionalized in Nova Scotia since she was 10 years old. She lived in one institution or another until the year 2000. At that point, she literally said, “I’m fed up. I don’t want to live here anymore. I want to live in a home on a street like everyone else.” And she essentially damaged property on the grounds of the institution, explicitly saying, “I want to get out of here. I don’t want to live here. I’m told that I might go to jail. Well, fine; I’ll end up in jail. At least it won’t be here.”So that’s where she was sent, albeit temporarily, before being released from jail and then sent to a psychiatric hospital in Nova Scotia in 2000.
We’re now in 2018 and she is still looking for supports and services to live in the community. She was medically discharged in the sense that the clinical treatment team said decades ago, “You don’t need to be here.” And she remains in the institution. Why? She is in an acute care psychiatric ward because of the lack of supports and services in the community. So you essentially have someone involuntarily hospitalized but there solely because the supportive housing and services that she needs are not available.
That’s the kind of situation that we are currently involved in and that is at the core of this mammoth human rights case, but the case is emblematic more generally with respect to so many people in federal prisons who, because of mental illness, have found themselves incarcerated primarily because the underlying supports and services have not been in place. It’s those that I think this committee should look closely at in terms of the kinds of agreements that can be made with the provinces.
Senator Brazeau: Good afternoon to both of you. My question deals with overrepresentation of Aboriginal peoples in prisons and I would like to pick your brain, considering the fact that you are both lawyers.
We all know that we have the Gladue decision, which gives courts different alternatives to incarceration with respect to Aboriginal peoples, but they are overrepresented in our prison system. If we did not have the Gladue decision, what would the statistics perhaps look like? At the same time, has Gladue become sort of a smokescreen for judges? Are they utilizing it? Is the threshold for the criteria for it to apply to Aboriginal inmates too hard to reach?
Ms. McNeil: I think that the Gladue decision and statutory changes were really important. I think that, as well, there’s a lot more work to be done. It’s been pointed out to this committee by other presenters that there are other options to incarceration for Aboriginal inmates that haven’t been implemented fully by the federal government in terms of, again, this type of arrangement to allow for them to serve their sentences in the community or in partnership with community-based organizations. That would be my comment in relation to that, that there’s definitely more work that could be done.
Mr. Calderhead: I have nothing to add. Ms. McNeil is exactly right in her remarks.
Senator Brazeau: As a follow-up question, in your experience of being on the ground and working directly with inmates, are lawyers who represent Aboriginal inmates pushing the courts for the Gladue decision to apply to inmates as much as can be?
Ms. McNeil: I’m not sure I’m necessarily qualified to speak to that. From my narrow experience, I would say two things about that.
First of all, when someone is charged and when they are before the courts in the first instance, of course, there is access to legal aid in terms of access to justice issues. I think, at the sentencing stage, from my limited experience, it seems like those issues are being identified in terms of when a Gladue report is called for.
On the other end, once people are incarcerated, access to legal counsel is a huge issue in terms of dealing with the conditions of incarceration. For instance, in Nova Scotia, I think Nova Scotia Legal Aid is starting to look at perhaps putting in place some programs to provide legal assistance to prisoners in institutions in Nova Scotia, but that isn’t really up and running yet.
In New Brunswick, our office gets lots of calls from people in institutions. We’re not able to do very much, given our size and given our limited resources. It’s a huge issue in New Brunswick because you have the Atlantic Institution in Renous. You have Dorchester in Shepody, the treatment centre there in New Brunswick, and there is just zero by way of legal aid or assistance for prisoners, many of whom are, I believe, Indigenous.
To add insult to injury, for those self-represented inmates who have tried to go to court to vindicate their rights through habeas corpus or a vehicle like that, a recent survey showed that New Brunswick courts had ordered costs against those self-represented litigants in just about every single case in the last four or five years. So, again, a real chilling effect on prisoners. First of all, you can’t get a lawyer, and then, if you’re going to represent yourself, get ready to be hit with an order for costs.
You can see, just on the question of once you are sentenced and serving your time, that it’s very difficult to access the legal system.
Mr. Calderhead: Maybe I would just add a couple of words. I think Senator Brazeau has identified a key vulnerability in the legal aid system, and that is for people inside serving time incarcerated. Their access to justice, literally, is very limited under the currently available legal aid regimes, in part because — and I go back to federal-provincial cost-sharing — the federal proportion of cost-sharing for criminal legal aid has eroded over the years to the point that it’s now less than 20 per cent of the total cost of legal aid provision to those involved in the criminal justice system.
So, on the idea of challenging Correctional Service Canada for some of its practices, like under section 81 or 84 of the act, where it restricts the kinds of remedies that are available to Indigenous people, whether it’s for their internment to be carried on by Aboriginal communities or in terms of them by third parties, Correctional Service has really a quite restrictive approach there. But, to challenge that legally, as I think it could be, requires legal resources that legal aid regimes, stretched to the max currently, simply don’t have.
Senator Andreychuk: First, I’ll apologize. I was called to another meeting. That’s life on the Hill. If you’ve covered this, please let me know.
Females being incarcerated. I’m hearing from some sources that they are a changing group, that, say, 20, 30 or 40 years ago, they were always the accompanying person, when someone else was really the initiator of the crime. Now I am hearing that there are categories of women who are finding themselves on the street self-initiating a lot of the difficulties, and it goes with drugs. They are either buying them or selling them, et cetera. Is the prison population of females changing compared to what they used to be, and are their vulnerabilities different?
Mr. Calderhead: Unfortunately, I’m not in a good position to speak in any authoritative way on that.
Ms. McNeil: I think I’m in a similar position. I could comment maybe —
Senator Andreychuk: On what’s going on now.
Ms. McNeil: On the youth.
Senator Andreychuk: That would be good.
Ms. McNeil: Young women are still very much in the minority of those who are incarcerated, but I couldn’t really say that it’s different than it has been. Maybe it’s different at the adult level, and I just couldn’t comment on that. I’m sorry. I don’t have any information on that.
Senator Andreychuk: To what extent is addiction, then? Is it pervasive in the population that you deal with? I’m talking drugs, perhaps alcohol. Or are they mental health issues? Separate.
Mr. Calderhead: Very often, the two are intermingled, intertwined, and to blame drugs in a kind of simple way is not helpful, not useful, not even accurate.
The situations that we work with, as well as the literature, all point to a combination of problems that involve mental health or mental disability, but underlying that are huge gaps in the social safety net that result in the kind of derailing of that person’s life into drugs, into incarceration, homelessness. From our point of view, what we see time and time again are gaps in the social fabric, social services, that happen not just in Nova Scotia, where we work, but I’m aware of those gaps happening nationwide.
For the federal government to act meaningfully in response to that, it’s simply not enough to shrug your shoulders and say, “Those are provincial matters. Those are drug or health matters.” Under section 36 of the Constitution, there is a recognition of a joint federal and provincial commitment to the provision of essential public services of reasonable quality to all Canadians. That’s a joint constitutional commitment, so that can get crystallized and implemented in this context through, I would say, renewed federal-provincial focus on the kinds of supports that can prevent people from winding up in prison to begin with.
Senator Andreychuk: You have nothing to add?
Ms. McNeil: I have nothing to add.
The Chair: I have a supplemental to Senator Andreychuk’s question. Could you speak to other factors such as poverty, race, living in rural and impoverished communities and education? We’ve heard a lot about the school-to-prison pipeline. Do you think any of those factors have an impact in addition to the mental health issues you’ve identified?
Mr. Calderhead: I will say a few words, and perhaps Ms. McNeil might have some additional thoughts.
Absolutely. We can look at who is in prison and take a snapshot of who is inside on any particular day and break it down, or you can do it historically and say who has come in over the last 10 years and then break it down. It’s not coincidental that in the high 90 percentages of people come from impoverished backgrounds. It’s not coincidental that a disproportionate number are racialized. It’s not coincidental that they come in grossly disproportionate numbers from Indigenous communities. At this point, it’s well beyond debate that issues of race intersect with class issues and issues of poverty. We know that, similarly, educational outcomes and educational inputs, in fact, are not equally shared across racial communities and indeed between class communities. The results are not surprising. The results are that when they appear in courts or in our offices and people say, “I have lost my social assistance. I’m about to lose my housing,” well, in fact, very often it’s a single parent or it’s a person with a disability or a racialized person. After doing this work for 30 years, we’re able to say, hmm, these aren’t coincidences any more. In fact, they are underlying structures in our society.
Ms. McNeil: I would agree with what Mr. Calderhead has just said. You see it at a very early stage. If you go into youth court and see who is being charged and how they work their way through the system, it’s very much children coming from situations of disadvantage. They’ve grown up in poverty and they may rely on income assistance. Many times they themselves are wards of the state. They’ve been removed from their families for child protection issues and may have been placed in a number of different settings before they find themselves before the youth court. There used to be a time when that itself would generate charges. Misbehaviour in a group home could result in criminal charges and land the young person before the court.
Very much these intertwined issues of poverty, racialized identity and, I would say, mental disability are strands that we see at a very early stage, and it is a failure of supports and services in the community. I think Vince’s comments about the cost-sharing and the federal government’s role in that is very important. It’s not just what we are going to do once people get to the penitentiaries or prisons. It’s looking at prevention, I assume, from your point of view. How do we stop this problem from starting? It’s very much looking at those kinds of arrangements or some tweaking that you can do through your Corrections and Conditional Release Act in terms of looking for more appropriate and more accommodating measures that are community-based, but it comes back to looking at the initial source of the problem. The trajectory in this country has been away from providing the necessary financial supports to people in those situations.
The Chair: I think that’s our question list, but I will take the opportunity to ask one more question. Since we don’t have as many senators with us today for various reasons, I get to ask more questions.
A theme has come up with Ms. Halpern and then when Senator Brazeau asked about Gladue reports. A few weeks ago we had Professor Michelle Williams from the Schulich School of Law here, so I’m wondering about education.
Senator Brazeau’s question was around whether lawyers are aware enough to know that they could be asking for Gladue reports for Indigenous prisoners or offenders. What is the role of professional education and ongoing continuing education of lawyers in terms of having them prepared, not just in the legal system but the other systems as well, if we want to factor in prevention? What should the educational systems be doing in terms of preparing people for the provision of services to all of these groups? That is for Indigenous groups certainly, but the others as well, as you’ve just referenced in making up the majority. If they are so highly over-represented, how are professionals that are working in those services being prepared to work with them in culturally sensitive ways? Is there something more that could be done?
Ms. McNeil: Professor Williams, coming from the law school, would have been in a position to speak to you about that. I can speak about professional, post-law school options that exist mostly through criminal lawyers associations. That’s what lawyers have typically relied on for education in this area. I know just from my own area that the issue of Gladue reports has been widely discussed and people have been made aware that they exist. How much that actually factors in, I’ve never had any direct experience with that.
I would speak a little bit about the section 34 reports and the intensive rehabilitation in custody orders because those are things I do have experience on. Those are similar to the Gladue reports in the sense that they are a very detailed examination of a young person, and this is under the Youth Criminal Justice Act. This is about a young person’s needs in terms of mental health and mental disabilities. It’s looking into, for the purpose of sentencing, what that young person’s need might be in terms of an appropriate sentence. I think those are very important and there probably could be and should be more attention given to cases where those would be useful at a sentencing stage.
Mr. Sanford: I can’t add further to what Ms. McNeil has said.
The Chair: Let me thank both of you for taking the time to come and present to our committee. Your information will be very helpful to our deliberations and this study.
(The committee adjourned.)