THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
OTTAWA, Thursday, May 9, 2019
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, met this day at 10:30 a.m. to give consideration to the bill.
Senator Chantal Petitclerc (Chair) in the chair.
The Chair: Good morning, one and all. Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
My name is Chantal Petitclerc. I am a senator from Quebec, and I am pleased to chair the meeting today. Before I give the floor to the witnesses, I would ask my colleagues to introduce themselves, starting on my right with the deputy chair.
Senator Seidman: Good morning. Judith Seidman, Montreal, Quebec.
Senator Poirier: Welcome. Rose-May Poirier from New Brunswick.
Senator Eaton: Welcome. Nicky Eaton, Toronto.
Senator Oh: Victor Oh, Ontario.
Senator Ravalia: Good morning and welcome. Mohamed Ravalia, Newfoundland and Labrador.
Senator Pate: Good morning. Kim Pate, Ontario.
Senator Mégie: Good morning. Marie-Françoise Mégie from Quebec.
Senator Kutcher: Good morning. Stan Kutcher, Nova Scotia.
Senator Moodie: Good morning. Rosemary Moodie, Ontario.
Senator Klyne: Good morning. Marty Klyne, Saskatchewan.
Senator Munson: Good morning. Jim Munson, Ontario.
The Chair: Today, we continue our study of Bill C-83, an Act to amend the Corrections and Conditional Release Act and another Act.
Let me introduce our first panel of witnesses today. From the Canadian Association of Elizabeth Fry Societies, we welcome Diana Majury, President, and from the John Howard Society of Canada, Catherine Latimer, Executive Director.
I would like to remind you that we have five minutes for questions and answers. I believe that you have some opening remarks for us. We will begin with you, Ms. Majury, followed by Ms. Latimer.
Diana Majury, President, Canadian Association of Elizabeth Fry Societies: Thank you so much for giving me this opportunity to speak to you as the president of the Canadian Association of Elizabeth Fry Societies. CAEFS is an umbrella of organization of 24 Elizabeth Fry Societies across Canada. We work with marginalized, victimized, criminalized and institutionalized women and girls.
Under our very important Human Rights in Action Program, we have teams of regional advocates who regularly visit each of the federal prisons that incarcerate women to examine the conditions of confinement and to check for human rights abuses. We are painfully aware of the terrible conditions under which women are being imprisoned in this country. We had hoped that Bill C-83 signalled some positive change, but we now fear the opposite.
CAEFS is opposed to the use of prison segregation for women in any form. We see it as an inhumane practice that can only worsen whatever behaviours or factors led to the segregation. We see this worsening in our prison visits every time we meet with a woman in segregation. Our long-standing position is that segregation is not about the name or necessarily about the specific space. It is about the practice of segregating — that is, isolating a prisoner from the rest of the prison population, whatever and however that is done.
We are deeply concerned by the name shell game that we see happening with Bill C-83. Everything that we have seen and heard since the bill’s introduction confirms for us that the “structured intervention units,” the SIUs, proposed in the bill will rely on a male-dominated or a male-based approach that will result in conditions of confinement much the same as those we see now under the current administrative segregation regime, only with less procedural safeguards for the women.
We urge this committee to scrutinize the bill, keeping in mind the conditions some of you have witnessed through your study of human rights in prisons.
In November last year, CAEFS testified before the House of Commons Standing Committee on Public Safety and National Security about units much like the proposed SIUs that already exist within the prisons for women. These units, despite minor differences like more time out of cells, function very much the same as segregation and perpetuate the same harms as segregation. In response to testimony from the Office of the Correctional Investigator, CAEFS and others, the committee recommended alternatives to segregation. In particular, the committee endorsed a proposal for women prisoners put forward by CAEFS in November 2016 that would involve representatives from our organization intervening and assisting to find alternatives in situations where women would otherwise be segregated. The Parliamentary Budget Officer recently released a report comparing Bill C-83’s proposed SIUs to four more humane and more cost-effective alternatives, including CAEFS’s 2016 proposal. We would be happy to explore amendments to the bill that would achieve meaningful alternatives to the practice of isolating women prisoners for any period of time.
During a round table in March of this year, hosted by the Deputy Commissioner for Women, it was confirmed that the SIUs would be implemented within the secure units at the prisons for women. In other words, they would be implemented within the existing infrastructure of the segregation range and maximum security, relying on static security measures such as additional correctional officers and isolating cells. CAEFS was informed that implementation of the SIUs in the secure units is non-negotiable. This confirms once again that CSC is not taking an approach that considers the unique needs of women, contrary to Public Safety’s recommendation, as well as CSC’s guiding principles under subsection 4(g) of the Corrections and Conditional Release Act.
The 2016-17 annual report of the Correctional Investigator of Canada focuses heavily on the secure units in federal prisons for women, highlighting severe, restrictive and repressive conditions that worsen women’s mental health and create barriers to the supports they need. The OCI anticipates that the number of prisoners held in these segregated conditions will likely go up under Bill C-83. We concur with that fear.
During the March round table, it was also confirmed that women in the SIUs who are actively or at risk of self-harming will continue to be subject to Commissioner’s Directive 843, which places prisoners in a segregation cell under the status of “mental health monitoring.” In the civil liberties case, the evidence before the court indicated that the only placement worse than segregation was an observation cell under that directive. This mental health abuse cannot be allowed to continue.
In my brief time, I have focused on the SIUs, but the bill is problematic and inadequate on many fronts. It needs a lot of amending to make it a bill that actually is improving conditions in prisons, for example: strengthening community-based options, such as clause 81; incorporating the Honourable Louise Arbour’s 1996 recommendation for judicial oversight; giving health care staff full clinical and professional independence; and eliminating the practice of routine strip searching in women’s prisons.
I want to note that this is Elizabeth Fry week, and our campaign this week is on strip searching. There has been a dramatic increase in strip searching in the prisons across this country. It is traumatizing and re-traumatizing women, many of whom have been subjected to sexual abuse before and while in prison, as you might know.
Those would all be improvements to the bill, but I focused on the segregation because it is so key here. I look forward to your questions and our discussion. Thank you.
Catherine Latimer, Executive Director, John Howard Society of Canada: I, too, would thank you for the opportunity to speak on Bill C-83, which purports to end segregation and to create structured intervention units.
As a charity committed to just, effective and humane justice and corrections, the John Howard Society supports the creation of SIUs insofar as they are well-funded units offering four hours out of cells, including two hours of programming per day to help address the reasons for confinement away from other prisoners and to advance correctional objectives.
The defect of Bill C-83, however, is that it does not end segregation, which can occur within SIUs and other parts of the prison. The known harms associated with segregation and the Charter violations of the existing regime are not fixed by the current version of Bill C-83, and further amendments are required.
It is the phenomenon of being isolated in a cell without meaningful human contact that is known to create the serious harms to human beings and that requires compliance with fundamental principles of justice and other Charter protections. This type of isolated confinement needs to be defined in the CCRA, and legislative protections against abusive forms of this confinement need to be built into the legislation.
The United Nations Nelson Mandela Rules relating to the minimum standards for the treatment of prisoners describes it in Rule 44 as “. . . confinement of prisoners for 22 hours or more a day without meaningful human contact.” The rules describe a period in excess of 15 consecutive days of this type of confinement as prolonged and prohibit that type of confinement.
While Bill C-83 claims to eliminate segregation, the failure to include a definition means the 22 hours of isolated confinement without meaningful contact can occur within the SIUs and elsewhere in the prison under different names, whether that be the VLAR — the voluntary limited association ranges — lockdowns, observation ranges, et cetera.
Bill C-83 should be amended to define the kind of isolation it claims to eliminate in terms of the number of hours alone in a cell without meaningful human contact. Prolonged isolation should be prohibited, and fundamental principles of justice should be expressly set out in the legislation and applicable wherever isolated confinement is occurring.
I have some suggested wording that would amend Bill C-83 to achieve that objective that I’m happy to share with the committee.
There are problems within the existing SIUs, and there are risks —
The Chair: Our translators need you to slow down a little bit, if you could. Thank you.
Ms. Latimer: I will try. Thank you very much.
By providing four hours outside a prisoner’s cell, with two hours of meaningful contact per day, Bill C-83 takes this form of confinement outside of the international human rights limitations and domestic case law relating to 22 hours or more without meaningful contact. However, clause 36 of the bill reads that the service is required to provide “an opportunity” for time out of the cells, and clause 37 indicates the circumstances when a prisoner need not be provided with an opportunity to be out of the cell, including prisoner refusal, failing to follow reasonable instructions and prescribed circumstances reasonably required for security purposes. This means that prisoners could be confined within SIUs in circumstances similar to the current Charter-offending segregation, so amendments to Bill C-83 are needed to ensure that prisoners are being protected from unconstitutional forms of confinement in the SIUs.
Some of those ways in which the bill could be amended that would help are related to fundamental principles of justice. Due process protections for those who were in segregation for disciplinary reasons are being eliminated in Bill C-83. So counsel at the hearing, 30-day limited duration, opportunity to know the case against them and make full answer in defence, independent adjudicator, all of that is gone in terms of disciplinary segregation. But given the loss of residual liberties in being placed in an SIU and the potential solitary confinement, an independent review of the reasons for placement in the unit within five days should be included in the legislative framework.
Also, we were pleased to see an amendment bringing in independent external decision-makers. I think it is very important to make them effective and to give them the tools they need to relieve the kinds of harms that can be caused by the existing regime.
The ways in which amendments could be made to those provisions to strengthen them are, one, to ensure that they are truly independent, it would be preferable to exclude former CSC staff from those positions. CSC staff do not always recognize mental health issues. They are embedded in certain ways of the corrections regime, and it is difficult for them to make changes, as we’ve seen throughout this process.
Two, if a person has not been out of the cell for four hours per day or has not received two hours of meaningful human contact for five days, then the IEDM should have responsibility for decision-making in the case. The IEDM could give CSC an opportunity to deliver four hours out and two hours of meaningful contact, but if CSC is not successful, a cap of 15 days should be in place. The test in Bill C-83 needs to change. The concern is not whether CSC adequately provided opportunities but whether the person has been out of the cell for the requisite time. We are worried about the harmful effects of isolated confinement on the individual, which are not relieved by good efforts on the part of CSC if the individual does not leave the cell.
Three, mental and physical well-being also need effective and timely independent external decision-making. I think the greatest weaknesses with the SIU portion of this bill is how it deals with deteriorating mental health and guards against it.
The process to get a person who is suffering out of isolation is too slow and refers to “as soon as practicable.” The criteria for staff members referring the health issue of a prisoner in an SIU to a health care provider is limited and does not include the prisoner telling the staff member that he or she is suicidal.
Those now making the decisions on health issues are heads of institutions, a committee of senior CSC officials and the commissioner, none of whom are required to have medical knowledge. The factors that the existing decision-maker must take into account are correctional and security-related and do not specifically reference the mental or physical health issues arising due to confinement in the SIU. The justification for restraining someone in the SIU, contrary to the advice of a medical professional, is based on security criteria rather than health criteria, to wit, the security of the prison or interference with an investigation.
Deteriorating mental health is a significant risk of isolated confinement. The safeguards in Bill C-83 are not adequate to ensure that a prisoner experiencing serious mental illness is removed from the type of confinement that is causing the harm. This is a serious flaw in Bill C-83, and amendments need to be made to ensure timely, independent external decisions to protect the mental and physical health of those who are confined in SIUs and other isolated conditions.
In conclusion, a legislative framework replacing the cruel and rights-denying administrative segregation provisions in the CCRA is needed. While there are program benefits to the SIUs, there are currently no safeguards against being detained within SIUs and elsewhere in the prisons in circumstances that violate Charter rights. There should be a definition of isolated confinement in terms of the number of hours in cells without meaningful human contact and legislated protections against abusive forms of such confinement.
To ensure adequate protections for those confined in SIUs, the independent external decision-maker’s authority should be triggered whenever the confinement takes on the character of the impugned administrative segregation provisions, so mental or physical concerns, the fact of confinement of more than 20 hours a day for five days, administrative segregation-like conditions for 15 days and the prisoner objecting to the legitimacy of the SIU placement, et cetera.
If Bill C-83 is amended to ensure the protection of Charter rights in a humane environment, then the John Howard Society of Canada would support Bill C-83. Thank you very much, and I’m happy to answer any questions.
The Chair: Thank you both for your opening remarks.
Senator Seidman: Thank you for your presentations.
I will speak about a field that I know well, and that’s the health field.
Scientific studies, clinical trials, for example, did not include women for decades in studying the cause and effects of treatments. The study results were merely extrapolated to women. Over time, it became obvious that women were very different from men, not only in the disease symptoms but also in the dose response to treatment. For example, I think of cardiovascular disease, which we are all now very aware of the differences between men and women.
I use that as an analogy and apply it to this legislation. You’ve spoken about that, Ms. Majury, and the difference in the way women and men experience segregation. I also worry about the different behaviours for which they may be put into segregation. Assertiveness on the part of a woman might be seen as a reason to be put into segregation, but not on the part of a man, for example, if we think of the stereotypes that we are used to. I worry that this is a fit-for-all kind of solution. I wonder why you think it is a fit-for-all solution. Is there data or evidence to support using a different, gender-specific approach to this?
Ms. Majury: Thank you for raising those concerns. It has only been fairly recently in the health care field that we have started to do that research and make that acknowledgment. I would say the corrections field is way behind the health care field. We are starting to recognize. The legislation recognizes the need to address these issues, but in practice, we have terrible trouble having these issues acknowledged and addressed. It was very clear at one of the round tables that there was no one speaking to the impact of the bill on women, and when this was raised, they were nonplussed by the questions about the gender impact.
You are totally correct that this is a huge concern. The reason a lot of women are put in segregation — I think you are right — is for a gendered reading of their behaviours, and a lot of them are put in for self-harming. It is not that that never happens on the men’s side, but it is a huge issue for women. Virtually all of the women in segregation have mental health issues. No surprise, it makes it worse. We have very limited data and research; we need much more. We feel like these issues are not being adequately addressed in this bill and generally in the prison system writ large.
Senator Seidman: I will put you on the spot and ask how you think we could address this issue better in this legislation.
Ms. Majury: Eliminate segregation for women and let us look at alternatives in the community on a case-by-case basis, as we proposed. You could use women as the pilot to see if we can actually stop segregation and do something in the community that works and that addresses the serious issues that these women are facing and are made worse. That’s one thing. And I would say, stop strip searching these women.
Senator Seidman: That’s very helpful. Thank you very much.
Senator Klyne: Good morning and welcome. Thank you for your presentations and the insight. It is very valuable.
I have a couple of questions. One is on the unique needs of women, specific to whether they present mental illness. The bill will propose, in entering an SIU, they would get an assessment done, and if they present that mental illness, then they probably need to be in a better place. I’ve been to a number of institutions in B.C., Saskatchewan and Ottawa, and I have yet to see a female institution, but I expect to do that in a number of days. What should I expect to see or understand, and what should I consider about the unique needs of women if they are placed in a separated environment and on that early day of assessment and they present signs of mental illness? What would you recommend happen at that point? Where would they go for an alternative situation?
Ms. Majury: If I am understanding your question, I would say take them out of segregation. That’s the worst place to put them. Take them out into the community to get the help that they need. They are going to get worse in segregation.
Senator Klyne: I would want to think that’s the correct thing, and I agree. Within 24 to 48 hours, something should happen very quickly, because it is not going to get better, and that’s not a good place to be. Could you come up with some exact language? The clock is ticking for us here, and if I had some language around something to that effect, that would be very helpful to find its way into an amendment.
Ms. Majury: Obviously not on the spot, no, but we would be happy to try to draft something and send it forward to you on that.
Senator Klyne: Great. Thank you.
On the same line of looking for the exact language, Ms. Latimer, you mentioned that you did have some language around certain areas. I want to zero in on the reference to the Charter with respect to being human environment. Do you have some language?
Ms. Latimer: Do you mean proposed amendments around conditions in the SIU? I could give you some. I have not drafted them out yet, but I would be happy to do that.
Senator Klyne: That would be appreciated. Thank you.
Ms. Latimer: Can I ask a question, Senator Klyne? If medical assessment of a male leads to concerns about their mental health, you would not think that they should be in an alternative place as well?
Senator Klyne: Yes. That was not meant to be gender-specific, but I’m trying to avoid being gender-specific because there are some unique needs with females. I agree it would be the same thing for a male situation. Assessment should happen in the very early hours of being placed in a separate environment, and there needs to be some action around that. We want to see that, I believe, follow through to some actions.
The Chair: Thank you, Senator Klyne. Thank you, Ms. Latimer, for your questions.
Senator Eaton: I will ask you ladies the same question I asked the minister yesterday. One, I’m worried that there are no deadlines in this bill for incorporating some of these changes. Two, I also worry about the culture. How do you change the culture in a prison? That’s a big issue. Three, by closing down a lot of long-term mental institutions in Canada, have prisons become our long-term mental institutions?
Ms. Majury: In terms of deadlines, yes, clearly very — I mean, again, we are arguing to get rid of much of the things that might have deadlines attached to them, but in terms of the deadlines for the legislation itself —
Senator Eaton: Those advocates, the four hours — all those things.
Ms. Majury: Absolutely.
I am so glad you raised the issue of culture and, of course, that’s the underlying problem. That is why, at some level, tinkering with a bill like this is not the answer. The answer is fundamental cultural change. All the best legislation in the world is not going to improve conditions if we do not improve the culture in those prisons and, generally, around criminalized people.
I went into a provincial jail recently and saw a slide show, and I sat and thought, oh, my goodness, this is amazing. They have amazing programs. They are doing amazing work. I felt so excited. Then I went and talked to the women, and it was the same stories. Those programs were not available. They were not being offered to those women. The conditions were as bad in that provincial jail as they are everywhere else. The culture is so ingrained that it is very difficult to change.
That should be the goal — a fundamental look and efforts to change the culture. Many people go into this work because they are committed to change and to support marginalized people who have had a rough time, but it changes. They can’t stay. We had an Elizabeth Fry worker start work as a correctional officer. She quit after a few weeks. She could not bear it. It is huge. I think you are absolutely asking the right question.
I wrote down mental health, but I can’t remember —
Senator Eaton: We closed a lot of mental —
Ms. Majury: Yes, absolutely. So interesting. The understanding used to be that we jail men and we put women in mental health institutions. The number of women now being incarcerated in jails is increasing all the time. It’s the big number that’s increasing. And that is how we are responding to women with mental health issues. We’re jailing them.
Senator Eaton: Thank you.
Ms. Latimer: I think bureaucracy has moved very slowly. If you don’t have deadlines about when these things need to take place —
Senator Eaton: Work in the Senate.
Ms. Latimer: It’s not going to happen. If you’re looking at legislative reforms, putting those deadlines in there, particularly around the health care issues, which seems to go on and on before they actually get some relief, is extremely important.
In terms of culture change, it is a really significant challenge, but some countries have actually done it. If you look at Norway and Germany and some of the Scandinavian countries, they have actually transformed their prison systems to be something quite progressive, and everyone has bought into that image, including the correctional officers and front-line officers. Any lessons that we can learn from way they did it and apply it in our own country would be a huge stepping stone in terms of —
Senator Eaton: Germany and Sweden?
Ms. Latimer: Sweden. Norway is good. Germany is great. I think Sweden is good, but I will get back to you as to whether it is one of the leaders.
In terms of long-term mental health providers, there’s no question that as there was a deinstitutionalization in mental health facilities, the number of people with serious mental health issues has risen in the prison situation. I think we really need to take a serious look at legislative reforms that try and provide the right type of response for the people who are seriously mentally ill before they get into the prison system. We need to support the prison system in doing better with those that are in there and who have mental health issues.
Senator Eaton: Thank you.
Senator Munson: I’d like to talk briefly about the people that this bill affects. We have experts, we have ministers, we have bureaucrats, we have lawyers and the constitution. You were close to it. With this bill in front of us and the idea of amendments — you’re close to the prisoners, and we hope to get a former prisoner to testify in front of us about the mood and feeling right now. They paid attention. When I was chair of Human Rights, we got a lot of letters, because we were inside the prisons and talking matter of factly about what’s taking place. Are they paying attention to this bill? The idea of moving from 800 in segregation down to 300, that seems to be a big deal these days. Is there any tangible — I can’t use the word excitement — awareness that their lives are being affected? Do you think it’s for the better, in the sense of what this bill is suggesting?
Ms. Latimer: Sure. I think there’s no question that reducing the numbers in administrative segregation is a very positive thing. I think prisoners generally appreciate that. There is some measure of anxiety as you transform things within the prison system because, even for the prisoners, adapting to change can be challenging.
In terms of how this is being implemented, we need to be very vigilant to ensure that those, for example, who sought to be in administrative segregation because they are vulnerable in the general prison population are going to be provided with a population management response that leads them to understand that they’re going to be safe during this transition. I think there are things that we can do to help relieve some of the anxiety about that.
You will hear from the unions and others that the deterrence, they believe, of finding yourself in administrative segregation for a long period of time is going to disappear and you’re going to see more violence. In fact, I’ve seen some of the unions speak about that. When I spoke recently to the deputy warden at Collins Bay, he said he saw no increase in violence with reductions in administrative segregation. I think we need to take a very serious look at whether or not that’s in fact happening and, if so, why it’s happening. A lot of the resources that are now being made available for the structured intervention units should really be applied to reducing violence for those who are at risk of imposing violence on others, if they are in the general population.
Ms. Majury: Can I quickly respond to that? I would say the women feel pretty sceptical and pretty suspicious of change. When we go in and say, “File a grievance,” they go, “I’ve filed 20 grievances and nothing has happened.” Some of the women who we meet were in P4W, the prison for women. They lived through that, and then they lived through the promise of Creating Choices, which was a place where there was lots of enthusiasm and excitement about possibility. And they’re now in conditions worse than or at least as bad as P4W. They’re a bit sceptical about promises of change.
Senator Munson: Much has been made of the $450 million and $150 million for mental health, as you talked about. As I asked the minister yesterday and officials, people in prison who have been diagnosed — and I don’t know if there is proper diagnosis. I don’t know if there are enough people at the front door of a prison who can understand intellectual disabilities and autism developmental disabilities. A lot of attention has been paid to mental health, but people are walking into these prisons, and because of their condition, of what they’ve had, they’ve made a mistake. And part of that has to do with their own condition. Are there, in your estimation, with this bill or without this bill, enough practitioners that are inside who care? They talk about going through a diagnosis, and they talk about going through this. Personally, I don’t see it. I’d like to get your view on the record.
Ms. Latimer: I think there are a lot of underlying issues that affect behaviour that are not being adequately addressed in prisons, including traumatic brain injury and fetal alcohol spectrum disorder. There are a whole lot of issues — senility, for example. We’re seeing a lot of older prisoners coming in with Alzheimer’s, which makes actually serving the time more difficult. We need to pay particular attention to that as well.
Generally, there are not enough psychiatrists and psychiatric supports to even cover off the basic access ones and other personality disorders, to get good diagnoses on those. It’s an under-resourced area within the prison system that really needs help.
Ms. Majury: I would agree with that.
We also have a problem, in some contexts, with the practitioners who are inside and actually become part of the culture of the place. It’s very hard to find practitioners who want to work in these settings. It’s a compounding problem. The waiting times inside for any health care are extremely long. Health care is the one issue that is always raised repeatedly, virtually by every prisoner, and even more so with respect to seeing a mental health professional inside.
Many of the women will have their prescriptions changed because of the limitations on what prescriptions can be delivered within a prison setting, and that’s extremely disruptive for the women, or for anybody, and upsetting to them when that prescription is changed. Those are some of the problems.
But despite all the money that has gone into mental health, we have problems on the outside, too. In Nova Scotia, people want to stay in prison because although the waiting list is extremely long inside to see a psychiatrist, it’s even longer on the outside. So women are actually feeling like they may have access. What an indictment of our system that people would prefer and choose to stay incarcerated in order to possibly have access to a mental health professional.
Senator Mégie: I will ask my two questions one after the other, and you can decide who would like to answer them.
I would like to talk about strip searches of women. What are the consequences for women, and what would your recommendations be to amend Bill C-83 to improve that aspect? The bill provides for body scans, but is that enough? Can other changes be made?
Second, do you have any figures? For example, we all know that indigenous people and racialized groups represent a higher percentage of the prison population. However, is that percentage as high among people who are placed in segregation? Those are my two questions.
Ms. Latimer: I can start with the numbers. There are statistics that indicate an over-representation of certain groups being placed in administrative segregation. We can get those for you. I think the Correctional Investigator has those. Generally, men are seriously overrepresented in administrative segregation. Of the 300 people in segregation, about 95 per cent of them would be male.
Ms. Majury: To add to that, in the women’s context, it would be large numbers of Indigenous women. Again, I’m happy to provide you with the data we have.
In terms of strip searching, we’re finding that women are being routinely subjected to strip searching in the absence of any cause or suspicion of them bringing anything into the jail, so following temporary absences, family visits and sometimes even just movement within the prison itself. We understand there’s a new protocol whereby you put it in the computer, and it randomly selects one out of three women for a strip search. These are women returning from conditional release. That means that women are declining going out on conditional release and declining opportunities to see their children because they can’t face the prospect of a strip search when they return. It’s having devastating impacts on women.
Routine strip searches are allowed under the legislation, but the language is discretionary — “may.” It’s certainly not required, and under the Mandela rules, strip searches should be a measure of last resort. That’s not anything in terms of routine or random; it’s a last resort. Our position would be that there is always an alternative to a strip search — that it’s not necessary — and that those alternatives should be explored in place of a strip search.
The Chair: Maybe just a precision on the body scan that is in the bill. Do you have an opinion on that?
Ms. Majury: I don’t, but I will get back to you with an opinion.
The Chair: Okay, that sounds good. Thank you.
Senator Forest-Niesing: Thank you, witnesses, for being here and providing your insightful testimony. It brings to light some real issues that you are clearly and very unfortunately familiar with.
My particular area of interest is with respect to the Indigenous inmates. Clause 23 adds section 79.1, which introduces the necessity of considering a specific series of factors in making decisions that affect an Indigenous offender, and it introduces the principles elaborated upon and spoken to in the Supreme Court of Canada decision in Gladue.
I’m wondering what you might think of an amendment to the bill that would impose an internal review after 24 hours of segregation, a mandatory application for judicial review if Correctional Services Canada wants to extend segregation beyond 48 hours and — I believe you’ve spoken to this — the hard cap of 15 days. Can you come back to those points?
Ms. Latimer: An internal review and access to a judicial review are good things. Would this be applicable to everyone or for only those where the Gladue provisions should be taken into account?
Senator Forest-Niesing: I could hear you on your view of what the scope of that would be, but my question was with respect to Indigenous inmates.
Ms. Latimer: From John Howard’s perspective, there is a need to separate prisoners who are committing violence against each other or a guard. If that is apparent, that needs to happen right away, but it needs to be for a very limited period of time.
If there is a suggestion that people are being segregated, particularly for inappropriate reasons, then I think there should be an opportunity for the person to challenge that. This may well be happening more to certain racialized minorities, including Indigenous people, than others. I visited the administrative segregation unit at Collins Bay Institution. I spoke to one Indigenous prisoner, and he believed that he was inappropriately placed in administrative segregation. He’s not the only one, but they should be entitled to some sort of review if they perceive it to be an illegitimate placement.
Ms. Majury: There are lots of critiques of the Gladue factors not working as they were intended in the sentencing context, so I’m nervous that they will have the same problems if we introduce them in the prison setting as well. They are complicated, and it really depends upon who is looking and thinking about those factors and how much they know and are compassionate about the issues with respect to Indigenous peoples.
Racism goes on in prisons, as it goes on anywhere. It would be a factor in terms of the decision to segregate a prisoner and in the context in which that prisoner is having to live both with other prisoners and the guards. Then to punish that person by putting them in segregation is intolerable.
Senator Poirier: Thank you again for being here. I have a couple of questions.
First, in your comments, Ms. Majury, you mentioned at one point that you felt that with Bill C-83, more women would be going to SIU. Can you explain to me why you think there would be more women going there than what’s happening now?
Ms. Majury: Again, it’s being used to capture a wider range of issues, including mental health issues. When we see these kinds of changes that sometimes have the label of “improvement,” that widens the net. That is a very common phenomenon. Again, I have a fear that is going to be the result.
Senator Poirier: You were saying one of the solutions of bringing the women out of segregation was to bring them into the community. You also talked about the length of time within the system that it takes for them to get access to the professional care they need, whether in the health system, whether it be psychiatrists or a mental health person, or a doctor or whatever. As you mentioned, we all know that outside the system is not any better.
I know there is $450 million that Senator Munson mentioned that’s going to be put into the system. There are approximately about 900 people they talked about who would be hired to help with mental health and the health workers within the system.
If we take them out of segregation and bring them into the community, do we have the professionally, qualified manpower to help them? If not, is there any indication that a part of this money that’s going to be put it into the system can go outside the system to help them in the community, if that’s where you’re recommending that they should be? I want to hear your thoughts on that, please.
Ms. Majury: For sure. The recommendation of moving the women out into the community is going to require resources — fewer resources than would be required to deal with it in the prison setting. But it would require that some resources are put into the community, which would be a fabulous thing.
But yes, as you say, we all know that those services are under-available at the moment, and there would be need for support. Elizabeth Fry does that work and would be happy to help with that work, but we need the professionals attached to it as well.
Senator Poirier: Do we have the infrastructure in place now to be able to handle it in the community?
Ms. Majury: With women, we definitely do because there are not that many.
Senator Poirier: Thank you.
The Chair: Did you want to add to that? Do you think we have the infrastructure when it comes to men?
Ms. Latimer: A lot of the individuals who are placed in administrative segregation have pretty significant issues within the prison system. You would be taking some of your very active, aggressive, violent people and giving them back to an Indigenous or other community. It would take a lot of resources in that community and a lot of support for them to be willing to take them. I noticed that they can calm down very quickly under the right circumstances, but I would consider that a venture of significant risk.
The Chair: Thank you.
Senator Omidvar: Thank both of you for being here.
I’d like to get your perspective on something I’m struggling with around this bill. Both of your perspectives will be useful. Should we think of this bill as transformational in nature, incremental in nature or simply window dressing — old wine in new bottles?
Ms. Majury: My answer may be somewhat predictable. To me, it is window dressing. It is tinkering with a broken system and then renaming segregation as SIUs, as if that fixes the problem. So it’s very much window dressing.
Ms. Latimer: My view is that if the bill is amended to protect the Charter rights of those in the prison system who could be placed in admin seg-like conditions and add the program support you could get with the SIUs, then it would be a good step in the right direction. In the absence of protecting their human rights, it’s not a good bill.
Ms. Majury: To add to that, those human rights and Charter rights are there now, and they are not being protected. The thought that changing this bill and making it comply with Charter and human rights protections does not mean, in practice, that’s what’s going to happen in the prisons. That’s our concern.
Senator Omidvar: In previous witness testimony and in other briefings, we’ve heard about culture change and that the corrections system needs to travel down the path from enforcement to rehabilitation, and that Bill C-83 is, in fact, a strategy to get us there. In my experience, culture will eat strategy for lunch every day. How far, on a scale of 1 to 10, does this bill go in shifting the culture of the institution?
Ms. Latimer: You’ve raised a very interesting point. I’m a member of the National Associations Active in Criminal Justice. We had asked CSC to what extent will the meaningful contact be accompanied by people from the community, as well as education programs being brought in. We didn’t get a very satisfying answer on the amount of resources that would be dedicated to bringing in external elements that would actually start to change things.
To the extent you’re relying on CSC and its staff to deliver transformation, you’re going to see some problems and some resistance to it. But if you actually were inviting members of the community, people who were interested, NGOs, educational opportunities and entrepreneurial opportunities, I think you could begin to see some significant shifts.
Senator Omidvar: We heard yesterday from the Corrections Commissioner. We asked her a question around international standards and lessons learned. I think I remember her saying that in terms of segregation, Canada was actually the gold standard. Could you comment on that?
Ms. Latimer: The gold standard. When they say things like that, it points to a lot of cynicism you’re hearing from a lot of witnesses about semantics. If segregation is being in a cell for 22 hours a day without meaningful contact, that is happening throughout the prison system now, whether it’s in the admin seg units, lockdown ranges or other things. The difficulty is burying and not making visible the extent to which these devastating conditions are taking place in administrative segregation. She’s probably talking about the implementation of the structured intervention units. Right now, there’s nothing in the admin seg units that deliver programs in any effective way. I would have to say that might be a bit of wishful thinking on the part of CSC to think this is the gold standard.
Senator Omidvar: Something we should aspire to, but we’re not there yet.
Ms. Majury: We mostly hear about the potential compliance with the Mandela rules, but if we want to be leaders in this area, we would go beyond that. That’s the minimum international standard, and we should aspire to higher than that in this country and to be leaders.
I want to draw your attention — it’s tiny — but in the British Columbia Civil Liberties Association case, evidence was introduced about meaningful human contact. The evidence that was put forward as to the existence of meaningful human contact was two minutes staff interactions through a meal slot. This was seen as meaningful human contact.
The Chair: We are having them in five minutes as witnesses, so maybe they will expand on that a little bit.
Senator Pate: Thank you both and the respective organizations for the work that’s done every day. I have two questions. I’ll ask them both, and then let you answer.
When Louise Arbour did her review of the situation at the prison for women, she made a couple of recommendations, one of which is that corrections for women could be the flagship for innovative approaches — it strikes me that’s consistent with what you are recommending, Ms. Majury, and if I’m wrong, you can correct me — that a pilot to look at no segregation for youth, for women and for those with mental health is possible, and she also recommended judicial oversight of corrections. Given the numbers that corrections is identifying, that we’re down to 300 people in this country, it seems infinitely doable, given what we’ve done with how the Charter was implemented for the police and the like. I’d like your comments on that.
Ms. Latimer, when you were with the Department of Justice, you in particular made one of the most innovative changes to youth justice that I think has ever occurred, and that was to require in the Youth Criminal Justice Act that all other systems be looked at before incarceration. Would you be interested in an amendment like that? Given your expertise, could you propose one like that to the committee?
Ms. Majury: Yes, given the smaller numbers of women who are incarcerated in this country, it’s a really good opportunity. There are differences, so one couldn’t translate from what happens with women to men. Nonetheless, they offer a fabulous opportunity to try these leading, innovative, community-based alternatives and see how it works. Again, Elizabeth Fry would be really interested. Our proposal was partly that with respect to segregation, but there’s just lots of potential there for trying innovative things and seeing how they work.
Yes, judicial oversight, given what we’ve been talking about, is clearly essential to moving forward. Whatever the legislation is, to make sure that it’s been lived up to in spirit and not just the words, that needs oversight for sure.
Ms. Latimer: First of all, let me congratulate you, Senator Pate, for a lot of the innovation that has already transpired in the women’s institutions. They don’t have the cook-chill meals, and they have individual cottages as opposed to ranges. I would love to see a lot of that translated on the men’s side.
If we start to see that happen, starting with the women, in the hopes of it becoming manifest in the rest of the prison system, then I would say that would be a good thing, but I would like to see it start to happen at some point. It has not happened, in my view, quite yet.
Judicial oversight: I’m not opposed to judicial oversight. I think it would be good. My concern is that there is a lot of existing administrative segregation that’s buried. If you actually had judicial oversight, it would cover off a lot more people. The costs might be a little more expensive if it were properly defined, compared to just looking at the numbers currently in admin seg units.
Senator Pate: One of the purposes of judicial oversight would also be to send a message about the kind of culture change that is required within corrections. Are you of the view that every single case would end up at judicial oversight?
Ms. Latimer: We could map out when there should be a speedy course into judicial review. Like, if there were a disagreement and if there seems to be some frustration on the part of the independent external decision-maker, there could be reasons for fast-tracking a judicial review and making that happen quickly. Yes, I would be happy to look at that. There is some significant merit to that. I would be happy to look at the YCJ and see what might be applicable in terms of looking at alternatives prior to custody. Would you see alternatives prior to an SIU? Is that what you are thinking of?
Senator Pate: Both, yes. Thank you.
Senator Kutcher: Thank you very much. I have one question with two components: First, many if not most women who are incarcerated have a significant, substantial history of trauma, regardless of whether they have a mental illness or not. That has both aggregate and independent effects.
You have addressed the issues of segregation and strip search. Could you take that trauma lens and put it to the rest of the legislation, thinking about what components in here could be mitigated so that it wouldn’t actually increase re-traumatization or get in the way of improvement? They are two different things.
The second part of the question leads me to a piece that’s completely absent from here. To paraphrase Yogi Berra: How will we know we got there when we did? What is the evaluation piece? What do you think would be a meaningful evaluation? If something is put into place, how will we know if it is working? What are the meaningful outcomes that we need to have a chance to see?
Ms. Latimer: Looking at a trauma lens in terms of placement in administrative segregation is probably very useful. There is no question that being placed in administrative segregation for long periods of time has a traumatizing effect on individuals. Many of them come out suffering from post-traumatic episodes.
One of the men I deal was placed in segregation at the Ottawa Detention Centre for four years. When he was then placed in the federal system, they put him in administrative segregation at one time and he immediately started banging his head against the wall until he knocked himself unconscious. That was because of the bad traumatic effects of the previous exposures to administrative segregation.
It is very important to know the devastating impacts that placements and long-term placements can have on individuals, and not just women. I would submit that if you are looking at the number of people in administrative segregation in the federal system today, many more men have had traumatic experiences from being placed in administrative segregation. One of the gentlemen I was speaking to at Collins Bay two weeks ago said he suffers post-traumatic stress from having watched his friend being shot in the face and killed by a police officer. Inmates have seen and experienced very many traumatic things, so a lens like that is extremely important.
In terms of metrics to know when we’ve been successful for this particular bill, it is important to look at a broader definition of being placed in seg-like conditions and whether the human rights protections have been embedded in there and provide relief for those people. Looking at the overall conditions in the prison, there is no question that the studies show people don’t get better from having been placed in administrative segregation. If they are actually reducing the overall use of administrative segregation, perhaps we would expect to see some calming effects in the rest of the prison situation. I’m happy to look at some measurable outcomes, if that would be of interest to you. Thank you.
Ms. Majury: In terms of a trauma lens, that’s a great suggestion on the rest of the legislation, but even just on the incarceration of people generally, the trauma lens is useful.
Women may go into jail without a mental health diagnosis — and some of them may have undiagnosed mental health issues — but virtually all of them come out with a mental health diagnosis. Prisons are having a traumatic effect. No surprise.
The other day, a woman saved the life of the woman in next cell who had put a ligature around her neck. She pushed the panic button and saved that woman’s life. That woman who pushed the panic button is not in segregation, but imagine the impact on her of that situation. That’s happening all the time. These are hugely trauma-inducing environments in which we are putting people for making mistakes in their lives.
The evaluation piece is really important. Again, we are happy to give it some thought and get back to you.
The Chair: Thank you very much. We must move on to our next panel. Thank you for these insightful answers. They are very helpful for our study of this bill. It is really appreciated.
Ms. Majury: Thank you for all the hard work that you are doing. We know this is not an easy job.
The Chair: Thank you.
Colleagues and witnesses, we are continuing our study of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. My thanks to our witnesses for joining us today to help us with this study.
From the Canadian Civil Liberties Association, we have Michael Rosenberg, Counsel; from the British Columbia Civil Liberties Association, we have Josh Paterson, Executive Director; from Queen’s University, Allan Manson, Professor; and from the University of British Columbia, Debra Parkes, Professor and Chair in Feminist Legal Studies.
Thank you so much for being with us. I believe you have opening remarks. I would ask that you keep your opening remarks to five minutes. It will greatly help us, as we have many questions and many witnesses today.
We will begin with Mr. Paterson.
Josh Paterson, Executive Director, British Columbia Civil Liberties Association: Thank you, Madam Chair. The ministers and officials urged on you yesterday that this is an entirely different regime from the current one and that the conditions that caused the kinds of harm that animated the two court decisions are not possible under this bill. The government claims, therefore, that the findings of the courts in B.C. and Ontario, to quote the minister yesterday, are not equally applicable to this new bill.
What some senators have hit on — such Senators Dasko, Pate and Omidvar yesterday, and many others, and they are correct — is that the old conditions are still possible with this bill and that the bill does not keep up with the current court decisions. When those conditions exist, we say there must be a legislated hard cap, as it is simply against the current law of Canada for those conditions to persist for more than 15 days. This bill will leave a considerable opportunity for people to be held in conditions that are recognized as solitary confinement for more than 22 hours per day and for prolonged periods of time. That must be prohibited, and this bill fails to do that.
We know that the existing admin seg regime was used, in many cases, in an arbitrary way. We proved that, and the CCLA proved that in two different court cases. The discretion under this bill too could be used arbitrarily. An inmate could refuse to avail themselves of the chance to leave their cells for mental health reasons. There could be prolonged lockdowns, as has been seen in prisons across Canada. A guard could say, “Well, the person has just not complied with the reasonable instruction to ensure safety or security,” whether or not that was in fact the case.
The reason that someone is in isolation doesn’t matter. What matters is the length of time. The thing the courts found unconstitutional was a set of conditions causing a set of harms: 22 hours or more per day, or more; in isolation for a prolonged period exceeding 15 days; and any period of isolation for someone with a mental illness or disability. The courts found that safety and security rationales advanced by government did not justify that kind of treatment. Unless that possibility is snuffed out, this law will be unconstitutional the moment it receives Royal Assent.
I should note that the minister acknowledged yesterday, and this was the first time I’ve heard the government say this, and I may stand to be corrected, but he acknowledged, in talking about the external decision-maker, that it is possible that the old conditions could creep back in, and that’s when the external decision-maker would kick in and make their assessments.
With respect, the law now says that, at 15 days, what you don’t need is an assessment of whether or not reasonable measures have been undertaken by corrections. What you need is to get someone out of isolation. That is what the Constitution requires. Having various forms of review is fantastic, but there needs to be a hard cap.
Underlying why we are so fervent in our conclusion that the bill can’t be adopted as is and that the discretions in this bill that would allow conditions to persist need to be tightened up is what Senator Eaton was talking about yesterday: the culture of the institution.
At the B.C. Court of Appeal just a few months ago, Canada tried to argue that what had happened in administrative segregation was just that there was a bunch of individual bad decisions misapplying the law and poor exercises of discretion. The justices of appeal actually stopped the DOJ lawyers and said, “You are not challenging the findings of fact of the trial judge.” The trial judge found there were systemic problems, not a series of individual issues. This is critical. The Government of Canada has not challenged the findings of fact in our case. It conceded that there are serious, systemic and persistent mistreatment and breaches of rights — systemic unlawfulness in the institution. When you, as senators, think about the measures and discretions that are being offered here, I have no reason to doubt the minister’s sincerity and that of his senior officials, but we have a duty to be realistic about what happens out there on the ground, and that’s why there needs to be a hard cap.
I would be happy to talk about some thoughts about the external decision-maker afterwards, but my time is up.
Debra Parkes, Professor and Chair in Feminist Legal Studies, University of British Columbia: Good morning, senators. I will spend my short time today on three key problems with Bill C-83, the amended version you have before you, with a focus on the new regime for segregating prisoners: One is that the SIU regime does not meet constitutional standards, and you heard that from other witnesses, and that they amount to conditions of solitary confinement that are within the realm of the harms recognized by the court and the constitutional limits; crucially, the second point is that the accountability and review structure for the SIUs does not meet constitutional requirements; and third, what this committee and the Senate can do about it.
The Canadian courts have made it clear that it does not matter what the units are called; it is the substance of the conditions of confinement that must comply with the Charter. As you heard from my colleague a moment ago, we are still dealing with those conditions here. It is evident from a reading of the recent Canadian cases that the proposed structured intervention units, even as recently amended in the House, do not take it out of that definition of solitary confinement, or more importantly outside the findings of fact and legal conclusions made by the courts in those cases.
With respect to the accountability and review structure proposed —
The Chair: My apologies, professor. I know I asked you to speak for only five minutes, but you need to slow down a little for the translation, please.
Mr. Paterson: And don’t dock this from her time.
Ms. Parkes: First of all, there are no caps on the amount of time someone can spend in an SIU, as you just heard, so I won’t belabour that.
All of the decision-making processes and reviews around the placement and maintenance of people in the SIUs are wholly internal to CSC, with the additional layer of the external decision-maker, described in clauses 36.6 to 37.9, which I will discuss in a moment.
These layers of decision-making and internal reviews, up and down the chain of command within CSC, are, quite frankly, mind-boggling and complex. What is notable is that they are paper file reviews. There are no requirements to meet with a prisoner, for an oral hearing and for respecting the rights to counsel. There are these layers and layers of reviews. All of the recommendations of health care professionals are just that, recommendations with no binding force.
The new independent external decision-maker is described in the legislation, and I will just say a few words about. With respect to independence, this is a position appointed by the Minister of Public Safety, so I suggest that’s not truly independent from government — not an officer of Parliament and not at arm’s length. Furthermore, as the internal CSC reviews, this review is a paper review as well. Again, no requirement for an in-person meeting, no oral hearing and no right to counsel.
The regime of the external decision-maker kicks in after a number of other decisions and reviews have taken place within this regime, meaning that these issues will not go to the external decision-maker in a timely manner that would be compliant with the court decisions around the hard cap of 15 days, which corresponds to the UN’s Nelson Mandela Rules, as this committee knows, arising from the evidence of profound harms of prolonged segregation and the findings of the court.
Dating back to at least the 1980s, we have report after report identifying the need for independent, external oversight of placements in segregation, and now we have these court decisions. We must therefore look at what can be done to address this issue.
Mr. Paterson has already spoken to why it is that we have this problem emerging in this legislation. That’s because the government is of the view that this is not segregation, and that simply must be rejected by the Senate, in my view.
The most significant amendment that could be made would be to substitute for the layers of reviews by various correctional and ministry appointed decision-makers, a starting point that all placements in isolation, segregation, SIU, whatever it is called, are extraordinary and are generally prohibited. If a prisoner is placed in isolation for 48 hours, that triggers an automatic review by the court. This is not unlike bail reviews or other reviews that courts make regularly and are empowered and possible to make.
I used the 48-hour benchmark rather than the 15 days because of the evidence of harms arising as early as that. It is likely that, even with the review, the person will still likely be in those conditions before being ordered to be released somewhere within that 15-day period.
I see that my time is up. I will save any further comments for responses to your questions.
The Chair: Thank you. I appreciate it. I am sure we will have many questions for you both.
Now to Mr. Rosenberg.
Michael Rosenberg, Counsel, Canadian Civil Liberties Association: Good afternoon, senators. Thank you very much for inviting me to address you.
My name is Michael Rosenberg. I am a partner in the litigation group at McCarthy Tétrault, and I represent the Canadian Civil Liberties Association in its challenge to the constitutionality of administrative segregation.
In the CCLA’s view, Bill C-83 is a missed opportunity to implement more meaningful change. It is clear that Correctional Service of Canada intends to house many of its structured intervention units in what are currently segregation units. While there is an ostensible commitment to allow more time out of cell and to provide meaningful human contact, SIUs remain places of extreme isolation. What is more, an inmate’s entitlements in SIUs are subject to a trapdoor in clause 37(1)(c), which provides that these entitlements may be denied when CSC deems it necessary to maintain the security of the institution. Unfortunately, this language echoes the current criteria under subsection 31(3) of the act for admission to administrative segregation.
However, more than a missed opportunity, Bill C-83 is constitutionally invalid. If the Senate passes this bill, it will be approving legislation that does not conform to the constitutional minimums already articulated by our courts. In part, Bill C-83 has been overtaken by the CCLA’s March 28 decision from the Ontario Court of Appeal imposing a 15-day hard cap. In part, however, Bill C-83 was never intended to address other constitutional defects, such as the lack of independent review after five working days, which the Court of Appeal noted in the CCLA’s decision of April 26.
In the CCLA’s respectful view, the Senate must ensure that Royal Assent is not sought for legislation that has already been found unconstitutional. To that end, the CCLA wishes to highlight three of the shortcomings in this bill.
Associate Chief Justice Marrocco found there must be independent review after five working days. You have a similar finding from Justice Leask in the British Columbia Civil Liberties Association and John Howard Society of Canada case.
On April 26, the Ontario Court of Appeal considered the very bill that is before you, senators, and stated, at paragraph 14.
We have virtually nothing to indicate that the constitutional breach identified by the application judge is being or will be addressed in the future.
As it stands, Bill C-83 provides for independent review when an inmate has been denied his or her entitlements for five consecutive days. That may mean the inmate is sitting in cell 24 hours a day. The independent reviewer then must wait at least a week to order the inmate’s release from these conditions. Where the inmate is, in CSC’s view, actually receiving those entitlements, there is no independent review for 90 days. The CCLA says it is not appropriate to rely on CSC’s judgment about these entitlements, nor is it appropriate to delay the authority of the decision-maker to order the inmate’s release. There should be an independent review for all inmates in SIUs after five days, with the authority to order the release of those inmates after five days. That is a constitutional floor already established in our courts.
Second, hard caps: There must also be a 15-day hard cap on SIU placements where the inmate is not receiving the entitlements promised under clause 36 of Bill C-83.
Finally, excluding the mentally ill from extreme isolation outright: Here we say that Canada must heed the dictum of the Ontario Court of Appeal in its March 28 opinion, where the Court of Appeal accepted, in principle, that mentally ill inmates should be excluded from extreme isolation. It required further evidence to articulate the boundary at which that exclusion should take effect, but the CCLA calls on the Senate to articulate those criteria and articulate them clearly such that we can identify a group of inmates that should never be subject to these conditions.
We are now working towards a June 17, 2019, deadline, at which point all authority under sections 31 to 37 of the act will lapse. It falls to the Senate, as the last line of defence against an unconstitutional bill, to at least catch Bill C-83 up to what the courts have already articulated as constitutional requirements.
I’d be pleased to speak further on these points in response to your questions. Thank you very much.
Allan Manson, Professor, Faculty of Law, Queen’s University, as an individual: It’s a privilege to speak to you about this important matter. I’ve been representing prisoners in legal cases and doing academic research into sentencing and imprisonment since 1975. That’s a long time ago.
Senator Pate asked me a short while ago to do a report analyzing Bill C-83 by the standards of the most recent Canadian judicial decisions. I did that and completed it about 10 days ago. Some of you may have seen it. I’d be happy to make it available. It hasn’t been translated. It’s in English. I can send it to Mr. Charbonneau.
Let me just say that if this bill had been sent by the government to me in draft form six or seven years ago, I would have said, “Good job.” This will or may ameliorate some of the harms of solitary confinement. May.
A lot has happened in the last six or seven years, including two major events. One is international consensus among experts, psychologists, psychiatrists and social scientists about the severe harms of solitary confinement and how quickly they can occur and how difficult they are to observe. All of those experts focus on three issues: duration of confinement, indeterminacy — by that I mean the prisoner not knowing when this is going to be over — and the third overarching concern, isolation, so the impact of not having human contact and not having appropriate stimuli.
The second event is these major Canadian judicial decisions. The British Columbia Civil Liberties Association that Mr. Paterson spoke to, the Canadian Civil Liberties Association case that Mr. Rosenberg spoke to, and a slightly anomalous class action called Brazeau. As a result, our courts have heard weeks of expert evidence and weeks of evidence from prisoners and prison officials. In the report that I did, the first part goes through the various findings of fact. These are not opinions. These are judges saying, “I have heard the evidence, and this is what I find.” The findings of fact — I don’t want to quote them now, it will take too much time — relate to the harms of solitary confinement, duration, conditions, the review of placement in confinement, impact on Indigenous offenders and impact on mentally ill prisoners. The three decisions then go on to draw legal conclusions by taking the findings and applying Charter standards to them. In different respects, all three of those courts found Charter violations, whether it’s section 7, 12 or 15.
Now, the government will say, “Well, that’s different. That’s all about the CCRA regime. We’re now talking about structured intervention units and only 20 hours in a cell.” Well, they can say that, but first, in all the expert material that I’ve had the opportunity to look at, I don’t see any expert saying that if we could just reduce the cell time by 8.3 per cent — which is two hours — then everything would be fine. What they focus on is addressing the isolation. Yes, there is the word “meaningful” in Bill C-83, but I see no specifics. I see no details. The timelines ignore the hard cap of 15 days. They go on and on. The new independent external review won’t have access to it until after 90 days, and, yes, as Mr. Rosenberg pointed out, that person has authority if someone has been denied their cell time for five consecutive days, to review the decision, but nobody has the responsibility to report it to them. How are they ever going to find out?
Most significantly, every court has said the solitary confinement of the mentally ill is hugely dangerous and occurs early. This bill doesn’t even make a mental health assessment mandatory after someone has been placed in one of these SIUs. It doesn’t make mental health issues part of the criteria. I think, at a minimum, this bill has to prohibit the solitary confinement of people — I’m not going to use the phrase mentally ill. I have a definition: People who have a history of mental illness or who are exhibiting symptoms of mental illness. The current Commissioner’s Directives talks about serious mental disorder that impairs. Well, that’s a standard that ignores many problems, especially when the experts are saying mental health issues are very difficult to observe in solitary confinement and they’re difficult to treat in solitary confinement.
That’s all I wanted to say.
The Chair: Thank you very much. Thank you for your opening remarks. We have questions from the senators. We will start with the deputy chair, Senator Seidman, who will be followed by the sponsor of the bill, Senator Klyne.
Senator Seidman: Thank you all very much for your presentations.
I’m not a constitutional lawyer. I’m not a lawyer. Excuse me if my understanding of very technical things is not the best, but I will say that none of you have been vague. That’s for sure.
Professor Parkes, you say very clearly, if I might quote you:
The idea that by slapping a new coat of paint and a new sign on the seg unit, aspiring to have the people confined there out of their cells for four hours per day and creating a whole bunch of layers of internal paper reviews takes us out of the purview of the Charter and of human rights laws.
I think Mr. Rosenberg said the Senate is the last line of defence.
Help me here. What would you see us doing about this particular piece of legislation, even in the most minimalistic fashion, from the point of view of this committee? Of course, this proceeds to the chamber afterwards, where there will be much more debate in third reading, but in this committee phase, when we’re looking at possibly making an amendment or two, or three or four, is there something we can do to help this along or otherwise?
Ms. Parkes: You’ve heard today three concrete things. One is what Professor Manson just addressed, the prohibition on any placement in segregated conditions for people with a history of mental illness or exhibiting symptoms. The second thing is a hard cap of a minimum of 15 days. I would argue to start the reviews earlier, but a hard cap of 15 days. Then a truly independent review process with the ability to actually order someone within that 15-day period removed from segregation. I argue for judicial oversight; others would suggest an appointed independent decision-maker. At a very minimum, there needs to be those three things.
Mr. Paterson: Thank you, Senator Seidman.
I agree with what Professor Parkes has said. We have some additional issues and concerns about the independent external decision-maker that I can comment on for some possible changes. Certainly, if there were to be judicial oversight, we would welcome it.
In terms of the independent external decision maker, a few things: We’ve established as a fact in two cases that the culture of CSC is deeply problematic. Why should someone who had ever served within CSC be an independent external decision-maker? It’s beyond me. There are 36 million of us in this country. We can find other people where that optical and real issue of being inculcated in that culture won’t be an issue.
We do say that there needs to be an external review at the five-day mark. In fact, we don’t just say it; as Mr. Rosenberg pointed out, the courts have said it.
The other thing that’s quite concerning is that even where the IEDM is doing their review at the 5- or 15-day mark if someone is not getting the things that they’re meant to be guaranteed, there’s then a seven-day period where they can give a recommendation. We think they should be able to make an order right away.
Second, under the current bill, if they are satisfied that reasonable efforts were made after that seven days have expired, they don’t have the authority to order someone out. What does it matter? The CSC could have made Herculean, superhuman efforts, but if the person is still there for whatever reason, they refuse to come out, the harms are happening. The level of effort is completely irrelevant. That shouldn’t be part of the standard.
Mr. Rosenberg: This bill, as I said, is deeply flawed. I can’t tell you what would be required to earn a clean bill of constitutional health, so to speak. What I can do is direct you to areas where the courts have already ruled that what is being proposed is unconstitutional.
So a five-day working review.
You currently have proposed section 37.83(1), limited to inmates who have been in for 5 consecutive days or 15 days without their entitlements. That should be all inmates. Proposed section 37.83(3). Mr. Paterson just spoke to this. There’s no need for a seven-day waiting period before the independent decision-maker can order the release of an inmate. It’s got to be the five-day review is also the ability to order release of the inmate.
Hard caps. This goes to the Ontario Court of Appeal’s decision of March 28 where inmates are not getting their entitlements under section 36. There is a 15-day hard cap. That is the law of the land.
Finally, excluding the mentally ill. The Court of Appeal has called on deliberative bodies like this one to understand that there is a group of people who are too mentally ill to be subjected to extreme isolation, and it has called on bodies like this one to articulate what that standard is. It is the responsibility of the Senate, and it falls to you, senators, to explain what that is and to ensure that these individuals are protected.
Mr. Manson: A hard cap of 15 days and a prohibition against mentally ill. One of you, senators, talked about 79.1 and Indigenous offenders. This needs to be reworded. I addressed it. It needs to include the particular family history, including parents, grandparents and other close relatives and their attendance at residential schools and adoptions out of the community.
Subsection 2 is backwards. It was amended — I know you’re not supposed to say this, but in the House of Commons — and, as a result, all of the Indigenous background factors are now irrelevant to risk. What the amender meant was we shouldn’t be drawing adverse inferences from the Indigenous background. It doesn’t mean it’s irrelevant to risk. That has to be reversed.
There are some very simple amendments like that. I won’t go on about the judicial review issue. It’s a large issue. Could it be fixed? With work. Can the bill be fixed? With a lot of work.
Senator Klyne: I want to thank everyone for making their presentations. I found them insightful. I had questions, but after reviewing my notes, you’ve answered the questions I was looking for answers on.
What you’ve said and presented before to me and certainly this committee is not lost on us for certain. I had a lot of insights, good advice and good input. I would leave with you that if you did have some exact wording you think should find its way in, I’d like to seriously consider that. You could probably add some good value to this. I ask that because, as you know, time is not on our side here, so any assistance would be greatly appreciated.
Mr. Manson: Ms. Latimer showed me the proposed amendment she wanted to make. I only saw it for two seconds, but I think it’s pretty good. It gives a definition of “prolonged solitary confinement” meaning more than 15 days, and it prohibits it. It also has a part that deals with mentally ill offenders. I would recommend that to you.
I can send Mr. Charbonneau my paper. It has some examples of specific language, but at the time I did it, I wasn’t playing the role of legislative drafter.
Senator Klyne: Thank you very much for that.
The Chair: If you have anything you wish to send our way, time is short for this bill, so be sure you make it in a timely fashion. We would appreciate it.
Senator Poirier: Thank you all for being here and for your input. I really appreciate it.
Mr. Rosenberg, section 10 of the bill, which would replace the administrative segregation with the SIU, would come into force at a later date by the Governor-in-Council. The courts have given the extension to the government, as you mentioned, until June 17, 2019, to remedy the situation, but the coming into force of Bill C-83 is signaling uncertainty. In your opinion, what would be the consequences if the coming into force is after June 17, and would the safety of the inmates and the corrections officers be at risk?
Mr. Rosenberg: Thank you for that question, senator.
I’ve now spent a fair bit of time cross-examining officials at the Correctional Service as to the time frame on which structured intervention units could be implemented. Their time frame calls for them to be implemented by the end of November of this year. I note, however, that the funding has been in place since 2018 and that they have been working to put in place the staff they will require for those units. We have not been provided with any of the timetables that show the steps that they anticipate taking in order to bring these units into force. I’m not able, with the information that I’ve been provided, to tell you whether November 30 is the earliest realistic date by which structured intervention units might be operational.
Already there have been certain population management initiatives undertaken by the service in order to prepare for structured intervention units — for instance, closing segregation at Millhaven, moving inmates to Collins Bay — but this is a process where the folks best placed to answer what the minimum time frame is to have these units operational are the folks charged with this responsibility at the service.
In terms of the constitutional consequences, the authority under sections 31 to 37 of the CCRA, as I said, will lapse on June 17, 2019, and the Court of Appeal has been very clear that there will be no further extensions. This is the coming into force of an order that was made by Associate Chief Justice Marrocco in December 2017. It was stayed for a year. It was extended for a number of months and again for a number of weeks. This is not a new development, and it’s one that Canada has had significant time to address.
The consequence of being deprived of that authority is that it does deprive the service of the authority to admit inmates to administrative segregation. Unfortunately, as I read the act, there’s somewhat of a grey area in terms of their entitlements that would then exist in the absence of sections 31 to 37 of the act. Here I look to section 83 of the regulations, and I hope that that is ultimately not the floor that is applied but that a much higher standard of entitlements is applied to inmates if there were a legislative vacuum, so to speak, between when this bill is passed, hopefully satisfactorily amended, and when the structured intervention units are brought online.
Senator Poirier: Thank you.
My next question is on behalf of Senator Eaton. She didn’t tell me who she wanted to answer this, so I’m assuming anybody can answer it. She wanted to know what you do with an inmate that is dangerous to other prisoners or to other inmates. What do you recommend? What do you do with somebody that is a danger to other people in the prison system?
Mr. Manson: I think there are a number of alternatives, but it could be transferring a prisoner from X institution to Y institution, or having a separate part of an institution for groups of offenders that doesn’t involve solitary confinement, where they interact with other prisoners and other people and programming that is acceptable to them.
The law has to drag the CSC into the 21st century. The practices of solitary confinement have been useful and easy management tools for decades, and it’s only recently that the international community and Canada and Canadian courts have said, “We are doing a lot of harm. It is cruel, unusual, and it’s wrong.”
Senator Poirier: I will ensure Senator Eaton gets the answer to her question.
Senator Pate: Thank you to all of you for being here.
In the interests of time, I’m going to make a number of statements. If any of you disagree with them or want to add to them, I’d like you to do so, particularly if you disagree, because that way we have a more fulsome analysis on the record.
As Professor Manson has raised, solitary confinement is being criticized now. Internationally, people are talking about this in much the way they talked about corporeal punishment, dietary regimes and restrictions that have gone the way of the proverbial whatever, that they are now seen as so barbaric and so outdated that they no longer exist. Many have said, not me — well, I have too — that this is the way solitary confinement and segregation is going, that in 10 years, we may all look and say, “How could we even that a 15-day cap was reasonable.” Do you agree or disagree?
UN standards are set to be a floor or a ceiling, depending on how you look at it, not the aspirational point, and particularly for countries like Canada that pride themselves on many human rights leaders, 15 days should be the absolute outside, not the aspirational decision-making point.
Third, when Louise Arbour looked at the situation for the women in Kingston in her report more than 23 years ago, she indicated that the only thing that would bring corrections into compliance was to ensure that there is judicial oversight of corrections, and that was the way to actually change the culture of corrections. Nothing short of that was likely to change the culture. Twenty-three years on, it appears that that is still the case.
Second, she suggested that in the area of corrections, women being so small in number, it could be the flagship for the Correctional Service of Canada. There are reports that three women are in segregation in this country. Every time I visit a prison for women since I’ve been appointed, there are no women in segregation. It strikes me that there are all kinds of alternatives possible.
Would you agree that we could start with a pilot or a process of saying no segregation for those with mental health issues, with the definition that Professor Manson has raised, none for women, none for youth, including those who have been transferred or the like, and then look at a phasing out for all other prisoners?
Finally, with the inquest into the death of Ashley Smith, before she died, Ashley Smith was not identified as having mental health issues, so the ability of corrections to actually identify mental health issues, as Professor Manson and Professor Parkes and all of you have indicated, is suspect to say the least. The fact that we could be looking at anyone within corrections to make these assessments is problematic, when we look at the evidence that came out during the inquest, which was that everybody presumed they were dealing with a dangerous, violent woman because of what they read in her files and what preceded her in 17 transfers in 11 and a half months. But it was nevertheless reinforced. Nobody countered that while she was alive, even when successive witnesses reported at the inquest that they really liked her and got along with her. They still reported her behaviour in the same problematic way.
Would there be any reason not to now provide, within 24 or 48 hours, a judicial review of placement in segregation, by whatever name? Would there be any reason not to immediately start with a prohibition for those with mental health issues and women and youth? Would there be any reason not to say a phasing out within one to two years with the interim period having the caps of the sorts that Ms. Latimer has recommended, that all of you have recommended, that the courts have recommended?
The Chair: Thank you, Senator Pate, for your combination of statements and questions. I saw a lot of people nodding. We will take it for the record that there was a lot of approval in all the questions.
Ms. Parkes: Thank you for that, Senator Pate. I tend to agree on all those fronts. Particularly around women, I do think that that is something I wish I had more time to talk about. I think you’ve heard from the Elizabeth Fry Society that there’s absolutely no need for any woman to be in segregation in those isolated conditions. Unfortunately, the court decisions don’t specifically speak to that. We don’t have those findings in the court decisions, but I think we have mountains of evidence on that, and it would be a very good place to start with a prohibition, in addition to those with mental health issues and young people. I do agree with the other statements as well.
The Chair: Thank you, witnesses, for making it clear that you approved. Your nods are good answers to the questions.
Mr. Rosenberg: I wanted to add on the issue of young inmates that this is an important issue for the CCLA. We did seek a constitutional declaration in that regard and adduced what we thought was persuasive evidence that those younger than 22 years of age should be excluded from both solitary confinement and other forms of extreme isolation. We see that as an important part of any humane regime for housing prisoners.
Senator Omidvar: I think I’ve heard enough from the four witnesses around the constitutional challenges. It appears to me that the government seems to think, or has put forward their opinion, which is, “Administrative segregation doesn’t exist so therefore we are in compliance because we have a new structure. We are calling it structured intervention units, so the decisions of the B.C. and Ontario courts do not apply to us.” I’m not a lawyer. Some of us are, but many of us are not. In my experience, this constitutional wrangling that happens in committee and in the chamber leaves us second-guessing what the Supreme Court will do.
Let me ask you a question about some details about the principles of fundamental justice and ask you to share with us your view of the monitoring mechanism that’s embedded in the bill. When you put someone in jail, you have to monitor them. I am assuming that this monitoring doesn’t mean looking at someone through a TV monitor or even through the bars of a jail. Are the mechanisms for monitoring in keeping with the principles of fundamental justice that are in the charter? Perhaps, Mr. Paterson, you could address that.
Mr. Paterson: Thank you, Senator Omidvar. If what you are referring to by monitoring is the independent external decision-maker plus, I gather, the various internal reviews that will take place, we don’t think they are adequate.
Let’s take, for example, the 90-day mark where the IEDM would kick in. That’s 18 times longer than the required external review of a placement in administrative segregation that was required in the B.C. judgment, for example. We don’t think it is constitutionally acceptable, and we think that there needs to be an external review at the five-day mark.
You mentioned watching someone through a monitor. Why is it that you as senators are allowed to go into the jails, but the independent external decision-maker can only communicate with prisoners? This bill doesn’t allow them to pay a visit. It just doesn’t make any sense to us, at all, why they should not be able to do that as a right. Maybe they will ask one of you to go look for them and report back. It doesn’t make any sense at all.
We’ve already said that it should not be someone who is formerly from CSC. I want to follow up on what Senator Pate and my colleague here said about judicial oversight. We would welcome that as well.
We know that Madam Justice Arbour said that many years ago, and we litigated on that basis in our case. Culture does not change overnight. When this bill or some other bill receives Royal Assent, it won’t change the way thousands of CSC staffers act across the country. It’s been proven. I’m sure lots of them are great people, but the culture is what is helping to produce these results, and that’s very, very difficult to change.
We went to CSC’s consultation in January, and I was alarmed by what I heard from operational folks in CSC and the union about how sceptical they are and how resistant they seem to this bill. If that’s the leadership on the staff side telling their members that this bill is dangerous and it is not going to work, it is a great thing that the Deputy Minister says they are committed to it. I am very concerned about it.
Senator Omidvar: Am I right in deducing from that statement that you think this bill is more in the interest of the institution and the employees of CSC as opposed to the interests of the prisoners?
Mr. Paterson: I know that we’ve spent years fighting to get this far. We have been talking to them for years since they came in on a promise to fix this stuff. We said we don’t have to fight this in court. Why don’t we build something better all together? They fought tooth and nail. They said what was happening right now is meaningful human contact. The minister has changed his position in speaking to you yesterday. He said that, no, the existing regime does not allow for meaningful human contact. That was not their position. We fought them for four years to get the minister to be able to say that. I think we can be forgiven for our skepticism as to how well all of this will go. They continue to appeal our judgment. I believe the minister when he says he wants to make change, but the instructions to their counsel had been to resist change.
Ms. Parkes: Could I add one thing? It goes to the question around the rule of law. To say there is resistance within Corrections, the government and the correctional officers’ union, again, we recognize it is a challenging environment in which to work, but we do exist under the rule of law. That is why these court decisions must be respected. They will be respected, one way or another. We could have mass habeus corpus applications coming from prisoners if we have a situation where the law is not being complied with. I do appreciate the challenging position that the Senate is being put in, but you are the last line of defence, and there are ways to do your utmost to make this bill comply with the Constitution and send it back for a vote. We do live under the rule of law and, one way or another, it needs to be respected.
Senator Forest-Niesing: I will state my question and leave it to all or any of you to answer as time might allow.
I was listening very carefully and heard you all describe it. I am entirely convinced that this bill needs fixing. At the very least, we change the definitions, put the hard cap in, modify the review process to ensure its independence and include the judicial review, not to mention what we need to do with respect to Indigenous inmates to enhance the experience there.
Time is ticking. I am concerned about how quickly and effectively we might be able to incorporate all of these changes into a bill that is, in my estimation, an important step. It certainly doesn’t take us to the change in culture that is desirable, but it is certainly a step in the right direction. Having regard to the fact that, as you stated, it took years to get this far, how do we capture the overarching benefits to inmates of this bill, and how optimistic are you that it can be fixed sufficiently to make a difference, if not the difference?
Mr. Manson: I don’t see a lot of overarching benefits. It is nice to see language like “solitary confinement shall end as soon as possible.” “As soon as practicable” is rife in this bill, rather than timelines, when duration and indeterminacy are at the heart of the problem.
It could be fixed. With a hard cap of 15 days, much of the 30-day review by the institutional heads would be over because the solitary confinement would be over after 15 days. With a real legislative scalpel, carving out the crap and rewording the important part, it could be done, but you would really need to apply surgical attention to the bill.
Senator Forest-Niesing: Failing that, would you consider us in a better position to not pass the bill at all?
Mr. Manson: If I were the Senate of Canada all by myself, that’s what I would do.
Mr. Rosenberg: I don’t know if this bill can be amended to render it constitutional in the time that you have. I am confident that it can be significantly improved. You’ve heard what some of those improvements might be from the witnesses today. What is clear is that the failure to comply with Canada’s constitutional obligations cannot continue. This is a debate that’s already been had. Further to Senator Omidvar’s comments, this is not a question of second-guessing the Supreme Court of Canada.
There was no appeal taken from the findings of a breach of section 7 of the Charter in Ontario or in British Columbia. Those are baked in. When the Ontario Court of Appeal says, “We will not extend this stay, as Canada had requested, to November 30, and it will end June 17,” that is the court saying that in order to serve as a guardian of the Constitution, it must ensure that these declarations of unconstitutionality take effect. That means that the breaches of inmates’ rights — these are serious breaches — won’t be allowed to persist. Whether it is fixed in a bill or otherwise, it must be fixed and fixed now. That is the clear message that we’ve now heard from two courts of appeal.
Senator Forest-Niesing: So we can take some comfort in that if the bill does not pass.
Mr. Rosenberg: You can take comfort in the fact that the courts are active, engaged and have spoken clearly. What remains to be seen is how Canada will comply.
The Chair: I see Professor Parkes and Mr. Paterson nodding. Do you want to add anything? You are good? Okay.
We have Senator Mégie, followed by Senator Ravalia. Then maybe time for a second round.
Senator Mégie: I would like to continue along the same lines as Senator Eaton and Senator Poirier concerning alternatives for inmates who represent a danger to their fellow inmates. Earlier, you said that they could be placed in separate cells. But if they are a danger to those around them, have other measures been tested in other countries with successful results? Could Professor Manson answer that?
Mr. Manson: You want to know about other countries regarding violent prisoners. I’ve already offered some alternatives. However, as was said by the last panel, there are places in the world who have developed a different culture to enforce imprisonment. For example, murderers regularly get month-long leaves to go with their families to camps way in the wilderness, and there is greater use of mediation and conciliation resources within the institution to ameliorate problems. I really don’t think you could just snap your fingers and say we could transpose those examples into the Canadian prison system. Talking about men’s institutions, there are dimensions of brutality that generate tensions, aggression and violence. Other than using other ranges or institutions, some of these quite imaginative techniques that we see in Scandinavian and some rare European countries require a cultural change before you can start even thinking about them because of the way the current culture of imprisonment creates, especially in the maximum security institutions, very difficult environments.
Mr. Rosenberg: At a very basic level, there are going to be acute situations in which inmates must be separated from other inmates and from all inmates. That’s not an excuse to deprive any inmate of meaningful human contact and to subject them to conditions that amount to solitary confinement. Inasmuch as there are population management measures that are at issue here, there is no justification for locking inmates in tiny cells — at times windowless, lacking natural ventilation, depriving them of social interaction — for all or the better part of their day. When you talk about mitigating the harm, that’s what we really need to be focusing on here, namely, what are the alternatives that avoid that undesirable outcome?
The Chair: Thank you. Mr. Paterson, you wanted to add something?
Mr. Paterson: Very briefly, there are all sorts of alternatives to the use of segregation. In our case before the British Columbia courts, there was all sorts of evidence from other countries that did things differently. Even here in Canada, there are transfers and special programs for indigenous people. Abroad, some countries make almost no use of segregation in prisons, as some prisons are designed differently to provide sections that allow for sub-populations and transfers within the institution itself. We do not see that sort of creativity in this bill. Actually, as my friend from the British Columbia Civil Liberties Association said, this is a missed opportunity.
Ms. Parkes: There are models and examples out there. There are even jurisdictions within Canada where whole institutions have gone without use of segregation for periods of time and where there’s the use of dynamic intervention — that is, human contact, the very thing that people need in terms of dealing with challenges, mental health issues or aggression. Yes, there may be periods of time where they need to be separated for a short duration, but how people recover and integrate back into society, recognizing that almost all of these people will one day be back in society, they need human interaction from professionals from within the staff complement who are equipped and trained to de-escalate certain situations. There are lots of models out there for that.
Senator Ravalia: Thank you for your very compelling testimony.
We’ve heard a lot about meaningful human contact. Can you put that in a contextual form for me, in a tangible way? What does meaningful human contact mean? Can it be implemented and evaluated? We tried to ask this question yesterday, and we got some very generic answers. It obviously seems to be at the core of some of the issues that we are discussing here today.
The Chair: Did you have someone specific that you wanted to answer the question?
Senator Ravalia: No, I would leave it open-ended.
The Chair: Who would like to take that question?
Mr. Rosenberg: I can speak to that issue. We consulted with Professor Juan Mendez, former UN Special Rapporteur who is now at American University in Washington. We asked that question because we wanted to get some content to understand what is and is not meaningful human contact. He referred to us a report by the Essex Group, a group of international experts who tried to tackle this very question within the context of the Nelson Mandela Rules, which is where the term comes from. I commend the report itself to you.
There is a difference between contact that is initiated by the inmate and contact that is forced upon the inmate. Interactions with CSC staff, routine interactions that are part of the daily life in prison, don’t amount to meaningful human contact. Meaningful human contact is a social interaction that is initiated voluntarily by the inmate. That seems to be, at least from international experts, a simple definition. Perhaps it is too simple, but it is certainly a good place to start by way of a definition.
Mr. Paterson: In our case, we had an expert named Dr. Craig Haney, whose evidence was accepted by our court on this point. I can’t do better than but to read into the record what he said on this. Here is what it is not:
I mean in the context of solitary confinement contact that is not mediated by bars and fences and tray slots and security glass where people interact the way you and I have interacted . . .
He is talking to the people in the court.
. . . the way we’re all of us are used to interacting with each other in a meaningful and authentic way.
Oftentimes it includes being able to collaborate on purposeful activity in a classroom or in vocational training, in a job, where the activity is social in nature, where it is as normal as possible within a prison setting, but it is meaningful and it is not bound by the very thick psychological barrier that exists between prisoners and staff, which despite the good intentions of many staff members, is virtually insurmountable.
He goes on to say:
. . . these kinds of the proforma routine rote interactions that take place that are essentially life maintenance functions . . .
Those do not count: Nurse coming by; doesn’t count. Pill call; doesn’t count. Food delivery; doesn’t count. Checking on whether someone is self-harming; doesn’t count.
These are just the basic things, as Mr. Rosenberg said, that are a necessary part of being there.
This is not meaningful social interaction.
The Chair: We do have a few minutes for a short second round, so one quick question directed to a specific witness would really help.
Senator Klyne: With all respect, I have a quick comment leading to a quick question.
In terms of what is in front of us, hard or easy has nothing to do with it. Time constraint does. I believe we can deal with these things by working together. I’m pretty sure we won’t lose the patient on the table as we carve through it.
My question is for Mr. Rosenberg. I’m looking for some clarity because I missed a couple of points. You did say you seek to exclude youth, which you define as less than 22 years old. I wasn’t sure who you consulted and what were the outcomes. You did seek to have that exclusion.
Mr. Rosenberg: Thank you, senator, for your question.
We led evidence that the brain development of youth aged 18 to 21 is continuing such that it poses particular dangers to them. The evidence we received from Canada was that everybody’s brains continue to develop and you can’t isolate that group of youth, and therefore there should be no specific exclusion for them. Ultimately, Associate Chief Justice Marracco did not accept that there was a constitutional prohibition on subjecting that group to segregation. We appealed that finding. Again, that was not accepted before the Court of Appeal.
The CCLA strongly disagrees with that finding. It believes that the evidence does certainly establish that that group is particularly vulnerable to the harms of extreme isolation. We call on the Senate to step in where the courts have failed, to recognize a group that should not be subjected to that danger simply because they are not able to cope. They have not developed to the point where they are able to cope with segregation. Our own witnesses spoke to that, to the terror of being a young person subjected to segregation. We had one individual who talked about consistently snorting Buspirone, an anti-anxiety medicine to pass out, revive, do it again, pass out. That was the way he got through his day in segregation. In my view, the segregation of young people does amount to cruel and unusual treatment or punishment. This bill should address that by prohibiting their admission to extreme isolation.
Senator Klyne: Thank you. Could you share a pithy brief with the clerk on that, so we could have a look at that?
The Chair: Yes. If you could send that information to the clerk, that would be appreciated.
Senator Pate: You’ve mentioned alternatives, in response to the question that was posed by Senator Eaton, on the culture change that international experts and other places have developed. Could you each please speak to the options that already exist within the CCRA? Those have also been costed by the Parliamentary Budget Office for section 29 to be used for those with mental health issues, for sections 81 and 84 to be used in the ways originally intended and not in the ways they have circumscribed by corrections.
Also, speak to the access-to-justice issues that I think Mr. Rosenberg and Mr. Paterson spoke about. How long have these cases been going on and how much work is it to actually get back before the courts?
Also, when Senator Klyne and I were in Collins Bay on Monday of this week, we heard directly from prisoners in maximum security, the ones that Professor Manson spoke about, asking for programs, asking for the types of interventions like Rick Sauve’s, interventions that are not being applied. In fact, the response we received from corrections yesterday was that they have an anti-gang strategy but there is no program to go along with it. So the only program that exists in the country is not even being funded. It could be rolled out for $200,000, when we are having millions of dollars being put into more staff. We have a more-than-one-to-one ratio of staff to prisoners in this country — the highest in the world, according to the Correctional Investigator. What could be done with existing provisions that would not require us to wait for this long-in-the-future or short-in-the-future culture change?
The Chair: This is a quick second round. I will ask that maybe one witness answer now, but we will welcome any written answers that you may have to the specific questions of Senator Pate.
Senator Pate: Professor Parkes has looked at this, I know.
Ms. Parkes: Just briefly, there are many. One of the ways in which pressure can be alleviated in terms of the pressures within institutions that then lead to tensions and to people being placed in isolation conditions, as we have them in various ways, is because of the numbers of people we have there who don’t need to be there. For them, the law already provides that they can be in the community. There are, as you said, section 29 arrangements and section 81 agreements with Indigenous communities for facilities and for home placements. There are all kinds of opportunities for that.
Also, they should meet basic parole eligibility dates and have the staffing resources to focus on getting people out of the institutions at their eligibility dates. We have the Correctional Investigator report showing that Indigenous people continue to not be released at their parole eligibility dates.
There are many tools available that don’t even require amending the legislation, but there needs to be the will. The most recent Auditor General report shows how skewed the spending is to corrections and security and not to community release. That balance needs to be shifted.
Programs such as the gang intervention strategy — I forget the name of the program — could be implemented. Again, there are cultural issues why this is not happening.
Senator Omidvar: I have a very quick question. One person can answer, hopefully Mr. Rosenberg.
If the bill were to be amended to include judicial oversight — and let me make an assumption that all 300 individuals in administrative segregation, who would then be in SIU, would all then file for assistance — would the courts have the capacity to handle that volume? Do we need to say something else in the amendment?
Mr. Rosenberg: It is an important question, senator. It is one I am not well placed to answer in terms of the capacity of the courts. Certainly Justice Arbour, who would have been well placed to make that recommendation, did recommend judicial review. I would defer to her views on that.
What I would say is this: Whatever system of independent review, and perhaps the first level review at five working days is not a judge, it has to be quick and effective. It cannot be bogged down procedurally such that it’s ineffective for inmates potentially being exposed to very serious harm. Certainly we do support the idea of judicial review, but in the context of delivering meaningful results for inmates.
Mr. Manson: Within the past few months, the Supreme Court of Canada, for the first time, dealt with the 90-day bail review that’s been in the code since 1972. It’s the first time that the Supreme Court said, “Okay, all the provinces are doing different things. It’s time for us to jump in.” We have not 300 but thousands of prisoners on remand. This deals with those who are detained and still awaiting trial. The jailer must apply for the bail review; it’s not up to the prisoner. As soon as the 90 days starts, the process starts. The judge must move expeditiously. They were very clear that the point is to ensure that people are not unnecessarily held in custody prior to trial. There’s a lot of analogy to solitary confinement — although we’re not talking about 90 days; we’re talking about 15 days — and the Supreme Court wasn’t shy to say, “This is what the judiciary shall do.”
Senator Kutcher: We know that there are high rates of mental illness and other problems in incarcerated peoples. The phrase “registered health professionals,” which appears throughout this bill, does that include, from your knowledge going through this, health providers that have substantive competencies and knowledge of mental health, mental disorders, diagnosis and treatment? My concern is that even in our community settings, most registered health professionals don’t have those competencies and capacities. Does this meet that standard, or is it at a higher standard?
Mr. Manson: There’s no reason to think that you’re talking about anyone other than a nurse, and not necessarily a psychiatric nurse.
Senator Kutcher: There’s nothing here that would ensure that the competencies that are needed to provide the care for the vast majority of people in the prisons are in the professionals who are providing care?
Mr. Manson: There is a daily visit from a health care professional. There is a provision here that does say that if the health care professional has concerns, that there should be referrals, which I assume means to a mental health care professional. In terms of this registered health professional, it could be just a nurse with no necessary competence with respect to the particular mental health issues.
Mr. Paterson: On the issue of registered health professionals, it is specific in the bill that professional employees engaged by the service can recommend to the institutional head that things change. We have a concern about what does a doctor do if people are taken outside to a regular hospital and that doctor has an opinion about what’s been happening. There is no easy mechanism for those health professionals to report. Part of the underlying concern for years has been that doctors and others in the employ of the service may not be as independent or appear to be as independent as we hoped. I know this bill tries to address it. Giving a vehicle for others to be able to register those concerns would help.
Senator Moodie: The strategy that supports this bill seems to require early and timely diagnosis of mental health illness and intervention. We heard of some 900 new jobs, of which half of them would be health care providers, and we were also reassured yesterday that this was not going to be a difficult task to accomplish, which is a real surprise, frankly. What is your sense that it’s achievable and that, in fact, the right people, as Senator Kutcher just raised, will be put into institutions? Timely, accurate assessment is often, as Senator Kutcher will tell us, difficult to make with mental health diagnoses in the first place. How can we assure that this is actually going to happen? It’s pivotal to the success of this strategy. I’m very concerned that I have not heard a realistic suggestion that this really key enabler is actually going to be put in place. What’s your thought?
Mr. Rosenberg: I think you’ve got a number of prongs that need to be part of this strategy — routine, regular diagnosis on admission is absolutely vital but not enough, as you say. Hard caps on the amount of time you can spend in segregation and independent review are the other prongs. The thing that the Ontario Court of Appeal recognized is that the idea of monitoring inmates while they’re in segregation, to catch them before they decompensate, does not work. They do not exhibit symptoms prior to suffering harm. They suffer harm, and then you say, “They suffered harm, and that’s not acceptable. That’s cruel and unusual.” It’s a multi-pronged strategy that is absolutely vital.
Mr. Paterson: I agree with what my friend just said.
We, in civil society — not just us at the table but many others — have done our best to bring this issue forward and to push Canada to this point. We’re counting on senators now to do your best — and I know that’s what you’re all here to do — to make sure that any law you pass respects the highest law in the land. Thank you very much for having us here.
The Chair: Thank you to our witnesses today. I realize that, with four witnesses, not all of you got to answer every question. If you have comments or something to add, questions you wanted to answer, feel free to send written answers to us. We will welcome everything that you send to the clerk.
Thank you, colleagues. This brings us to the end of the meeting.