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THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS

EVIDENCE

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OTTAWA, Wednesday, January 30, 2019

The Standing Senate Committee on Human Rights met this day at 11:30 a.m. to study issues relating to the human rights of prisoners in the correctional system; and, in camera, to examine and monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations (consideration of a draft report).

Senator Wanda Elaine Thomas Bernard (Chair) in the chair.

[English]

The Chair: I would like to begin by acknowledging, for the sake of reconciliation, that we are meeting on the unceded traditional lands of the Algonquin peoples.

Before we hear from our witnesses, I would like all senators to introduce themselves. We’ll begin on my right.

Senator Ataullahjan: Salma Ataullahjan, Ontario.

Senator Boyer: Yvonne Boyer, Ontario.

Senator Pate: Kim Pate, Ontario.

The Chair: I am Wanda Thomas Bernard, Nova Scotia, and chair of the committee.

Our committee has been studying the human rights of federally sentenced persons. During this study, the committee has held public hearings in Ottawa, as well as in various regions and has conducted fact-finding visits to 29 facilities. As we draw our study to a close, we are focusing on subjects that have not been fully explored in our earlier meetings.

In our first panel today, we are looking at solitary confinement. We have three panellists with two presentations.

Let me introduce, Dr. Ivan Zinger, Correctional Investigator of Canada. He is accompanied by Marie-France Kingsley, Executive Director, Office of the Correctional Investigator; and Howard Sapers, Independent Advisor on Corrections Reform for Ontario and the Former Correctional Investigator of Canada.

Dr. Zinger, you have the floor.

[Translation]

Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you, Madam Chair. It is with great pleasure that we accepted your invitation.

As you mentioned, I am accompanied by Marie-France, who has a great deal of expertise in investigations and operations.

[English]

I am quite thrilled that you invited us again. I have Howard, my former boss, at my side. I’m glad that you wanted to see the dynamic duo again. It’s great to be here.

Solitary confinement, as you know, is an important issue in federal corrections, but it’s not a new concern. Calls for reform go back more than 35 years and are best illustrated by the work of Professor Michael Jackson in his 1983 book entitled, Prisoners of Isolation.

The current legislative scheme on administrative and disciplinary segregation remains unchanged since the enactment of the Corrections and Conditional Release Act in 1992.

My own involvement in this subject dates back to my participation on the Task Force on Administrative Segregation in 1997. The Correctional Service of Canada’s task force was set up in response to the tragic event that took place at P4W back in 1994. The accountability issues raised in Madam Justice Arbour’s landmark commission of inquiry and report remains, in my opinion, for the most part unaddressed.

Today there are about 400 inmates in administrative segregation. The Correctional Service of Canada should be commended for having reduced, by half, the number of segregated inmates in the last four years. The average length of time in segregation has also been reduced significantly and now stands at about 22 days on average.

However, as I mentioned, the law pertaining to administrative segregation has not changed since 1992. So, how did the Correctional Service of Canada reduce segregation by half when the current provisions already and clearly state that the placement in segregation should take place when all other alternatives have been exhausted and as a last resort?

For me, the answer is clear. The answer is: discretion. For years, the CSC has used segregation as a population management tool. Only sustained corporate focus, brought on by litigation and a growing public concern for this practice, domestically and internationally, has brought the CSC more into compliance with the law, the current CCRA.

As currently written, excluding the anticipated amendments on oversight, there is nothing in Bill C-83 dealing specifically with Structured Intervention Units, or SUIs, that could not be done already. More time out of cells, providing more programs, interventions and services, providing adequate access to mental health services, and allowing meaningful human contact for segregated inmates can all be done right now. So why legislate something that the CSC has the discretion to do right now?

For me, the question that you should answer as parliamentarians and legislators is this: How do you make sure that the law is respected and not subject to discretionary implementation?

I believe the answer lies in strong external oversight. Over the years, CSC consistently and repeatedly resisted any and all calls for independent scrutiny of its decisions to place or maintain an inmate in segregation. Twenty-five years later, there is still no external review or oversight of the most onerous and depriving experience that the state can legitimately administer in Canada. It is only fitting that procedural safeguards should match the degree of isolation and deprivation that solitary confinement entails.

Some principles that should guide long overdue reforms in this area include: The law should specifically prohibit solitary confinement as defined by the Nelson Mandela Rules. The law must also recognize that significant loss of liberty associated with restrictive conditions of confinement of 20 hours in a cell must be matched with the appropriate degree of procedural safeguards.

These include, first, a proper hearing by an independent and credible adjudicator. A paper review at 90 days is not adequate, or an earlier review which would only be triggered if CSC documents it. A 30-day mandatory review by an independent person seems more reasonable, or sooner if any health care professional is concerned.

Second, access to legal representation should be made available in law. Limiting due process to written representation by inmates is unrealistic as many of them are illiterate.

Third, health care professionals should also have full clinical independence to prohibit placement in restrictive conditions of confinement if deemed harmful. Correctional authorities should not be second-guessing health care professionals, and there is no need for protracted second opinions or reviews by a health care committee.

The ultimate accountability for safety and security of penitentiaries and all those who live and work in them properly rests with the warden. The independent adjudicator, in my opinion, should have the authority to make recommendations. In practical terms, if a person recommends release into the general inmate population and a warden refuses, the case should be brought before the court.

The law should specifically prohibit the placement in restrictive conditions of confinement of seriously mentally ill individuals as well as any other vulnerable groups.

Finally, I believe that independent chairpersons and disciplinary hearings should remain for serious offences. The law could still allow for an offender to be removed from the general inmate population and placed in restrictive confinement for up to 15 days for a serious disciplinary offence. In a correctional environment, significant penalties must still be available for serious disciplinary infractions.

[Translation]

Thank you. I would be pleased to answer any questions you may have.

[English]

Howard Sapers, Former Correctional Investigator of Canada, as an individual: Thank you, Madam Chair and senators. Good morning. Thank you very much for inviting me to meet with you as you pursue this important work. I understand that your deliberations are approaching their second-year anniversary. I hope that we’ll benefit from your conclusions shortly.

I want to spend a couple of minutes establishing, at a very high level, the context in which we consider all of the issues that Dr. Zinger just enumerated to be fundamentally human rights issues. Let me just go through this as quickly as I can.

We start by trying to understand, first and foremost, the purpose of corrections. We won’t do Criminology 101 here right now, but when you boil it right down, the purpose of corrections is to provide safe custody and safe and timely release with a focus on resettlement and reintegration. But you need to have that safety key for everyone who is involved, the men and women in custody, the men and women who work in corrections. Getting that right provides the opportunity for corrections to live up to its mandate.

The legal framework for doing that requires that, first, legality be in place; so, no punishment outside the law. The administration of a sentence should not add to the punishment imposed by the court. And the companion to that principle is that it’s important to only use the least restrictive measure. The state only has legitimate authority to intervene the least amount necessary. So in this case, an example would be we have prisons that are designated minimum security, medium security, maximum security. The presumption is that you only administer the sentence with the least restriction. If it’s safe in minimum security, that’s where the person should be. This requires careful assessment, et cetera.

Anybody that passes through a prison gate with a warrant of committal retains rights. There is this notion of retained rights. These residual rights are operationalized such that you only lose those rights that are legally necessary to carry out the lawful purpose — the sentence. Mobility and association are examples. If you’re placed in confinement, you have restricted mobility and association. But then you go back to the principle of least restrictive measures. So the Correctional Service of Canada must only restrict mobility and association with others to the least amount possible to achieve the safety purposes I talked about a moment ago.

That’s why we have security classification, temporary releases and conditional releases, and we structure conditions to ensure those releases are effective and safe but, again, with the least restrictions.

The conditions of confinement are also governed by these high-level legal principles, or at least they should be. And increasingly we’re seeing modern, advanced responsive corrections systems normalizing conditions of confinement as much as possible: new builds and construction using different kinds of materials; moving away from concrete blocks and stainless steel to using wood and wallboard — and I know this may sound trivial, but it isn’t — thus normalizing the conditions of confinement; and only confining people in cells that are purpose-built for that confinement. In other words, you don’t double and triple bunk in a cell that was only designed to accommodate one person. This is all because corrections is not supposed to add to the punitive nature, so the conditions of confinement can’t be degrading. They have to respect human dignity.

Recent court decisions in both Ontario and British Columbia explored these elements in their judgments. In British Columbia, the current use of administrative segregation was found to be in violation of section 7 and section 15 — liberty of the person sections — because segregation could be indefinite and not subject to appropriate oversight, and the equality provisions, particularly around the overrepresentation of Indigenous men and women in segregation cells and higher levels of security, but also for those who have recognized, known and diagnosed significant mental illness.

In Ontario, again, section 7 was found to be offended by administrative segregation federally, specifically around the lack of adequate independent external oversight.

We have a couple of legislative initiatives that are trying to address all of this, and the question is whether or not they appropriately address it. We know about Bill C-83 and a series of amendments still subject to debate, so we don’t know what the final form of that legislation will be.

There is the Ontario Correctional Services and Reintegration Act that was passed in the spring of last year. It has received Royal Assent in the provincial legislature of Ontario, but it has not been proclaimed into law. If we explore that Ontario legislation, we see how Ontario tried to address these questions of retained rights, of oversight, of accountability, and of ensuring that restricted housing, segregation and solitary confinement are used as intended, as a last resort.

I’ll leave my comments there and welcome your questions.

The Chair: Thank you, Mr. Sapers.

We have senators wishing to ask questions.

Senator Ataullahjan: Thank you for your presentation this morning.

Mr. Sapers, I would like to get your thoughts on the definition of solitary confinement versus administrative segregation. In 2014, CSC responded to the coroner’s inquest into the death of Ashley Smith and they took issue with the term “solitary confinement.” They mention in the response that the use of solitary confinement is not accurate and that Canadian law and correctional policy only allows for the use of administrative segregation for short periods of time and in limited circumstances. Can you comment on this clarification. Does it make a difference? And why would they try to change the words?

And what is the difference between administrative segregation and solitary confinement?

Mr. Sapers: Senator, thank you for your questions.

Let me say, first and foremost, that I think it’s a bit of a red herring. We call this form of restricted housing lots of things. Some jurisdictions have called it “therapeutic quiet.”

What we should really be focusing on is: What are the conditions of confinement? Who gets into restricted housing and for what reasons? How is it managed? And how do they get out? Those are the essential questions and it doesn’t matter what you call it.

For anybody to represent the current scheme of administrative segregation as being limited and of limited duration and of limited use is misrepresenting the facts. Segregation can be indefinite in the current scheme. So I’m not sure it’s productive to have an elevated debate about the language.

It is correct to say that the current legislation federally talks about segregation. One of the challenges is trying to get your head around whether segregation therefore becomes a form of custody defined by those conditions of confinement, the loss of more mobility, the loss of more association, et cetera, or whether segregation is not really limited to a particular place in the institution but in terms of how your custody is being managed.

The Ontario legislation decided to move away from segregation as a designated place and talked about it entirely in terms of conditions of confinement, which gets to one of the points Mr. Zinger was referring to, which is if you’re going to manage somebody’s sentence with any more restrictions than is the norm for the general population, you need to have procedural safeguards. You need to have elevated scrutiny of that decision. Otherwise it is subject to abuse.

Mr. Zinger: Can I complement the answer just very briefly?

In one of the past annual reports of my office, we’ve made the case that administrative segregation, as defined in Canadian law, is equivalent to solitary confinement as defined by the Mandela Rules. Subsequent to that annual report, the courts have actually found that. The courts have ruled that what is called administrative segregation under the current scheme falls neatly within the definition of solitary confinement.

Senator Ataullahjan: For the sake of our viewers, I would like to ask you about international examples of solitary confinement. How often is it used? Are there any best practices we could learn from?

Mr. Sapers: The thing about solitary confinement or segregation is that it is a feature of almost every corrections system. The best examples are those which are vigorous about ensuring that it’s used minimally and have independent external oversight of those decision points I was talking about — who goes in, how it is managed and how they get out.

If you look at international literature, you’ll see that systems that establish good practice have anywhere from zero to maybe 3 per cent of their population, depending on different populations, in restricted housing at one point during their sentence. It’s possible to reduce segregation, but we have to be careful when making international or subnational comparisons within Canada, with the provinces and territories, and that we’re actually talking about the same thing. We have to avoid things that are segregation by any other name, which is one of the fears I have about proposed Bill C-83.

Some of those jurisdictions that report lower counts of segregation are actually managing populations in other kinds of restricted custody, but they’re not counted. Often, the danger is those other forms of restricted custody don’t have the same kind of oversight.

All that said, we can get segregation down to maybe the zero to 5 per cent range. There are some very dramatic examples of that change, particularly in the United States. The State of Colorado is the first one that comes to mind, but there are other ones as well.

Senator Pate: Mr. Zinger, you mentioned that you were involved in the Task Force on Administrative Segregation that followed from the Arbour commission. I want to clarify. That didn’t include looking at the prisons for women at the time, although it was generated by the situation at the prisons for women, which isn’t really my question. One of the things I recall that came out of that, and perhaps you could elaborate, was there were a number of recommendations about the increased use of restrictions.

Mr. Sapers just spoke about restricted housing. One of the things the committee has been struck by, as we’ve gone into the federal penitentiaries, is the number of restricted housing units that now exist. In my former work, I was certainly aware of that becoming more and more the reality, particularly for women who were qualified as maximum-security prisoners. Now it’s clear in the men’s prisons that the same thing is happening. There are whole prisons operating with a series of segregated units. How do you see those being managed?

Linked to that, you mentioned oversight. What’s being proposed in Bill C-83 is allowing CSC to exercise its discretion, which it has already demonstrated it can do. How would you see that oversight being implemented?

One of the challenges we are hearing is that there has been a reallocation of priorities and resources in corrections. We’re also hearing that most of those resources are going to correctional officers. Will what is being proposed by CSC in fact alleviate these conditions of confinement? Will it create more resources for programs and more opportunities for people to be released into the community? Overall, how will it address the fundamental problems that you’ve outlined?

Mr. Zinger: Thank you, senator, for your question.

You’re correct that the Task Force on Administrative Segregation only looked at segregation of male inmates at that time, in 1997. There are two important chapters in that report, in my opinion. One is entitled “Population Management.” It says that the law provides for two sets of legal entitlements and rights: one, if you’re segregated, and the other one is the general inmate population. As you said, there are many things in between, many types of conditions of confinement that are more or less restrictive from those two sets of entitlements.

What that particular chapter talked about, and it’s basically what we’re talking about — it’s still unresolved — is you should have, depending on the level of restriction you place on individuals, an appropriate, matched degree of procedural safeguards so there is a process by which you can apply the “least restrictive” principle that Howard mentioned and you can get out of those more restrictive environments.

Right now, the only inmate population part of all those subcategories that has some additional degree of procedural safeguards is the Special Handling Unit in Quebec, where a committee reviews placement in those conditions. It’s considered to be “maximum security plus” or super-maximum security, but there is a due process attached. They’re all internal, but at least there is something. That’s the only one.

If you land in a protective custody range where you don’t have full access to all the services and programming, in a special needs unit, even some of the newly created intermediate mental health units — and I believe there is some real discrepancy here if you are in a maximum security unit for women, the secure units — if you are even in a structured living environment, all those environments don’t have appropriate due process matching attached to them. This is why the definition of segregation and segregation light is so important, because it’s a gradation. We should be making sure that if you are stuck in one of those units and you don’t have full access, there’s a process by which you can get out and there’s a rigour imposed to validate the fact that you are in this restrictive environment.

With respect to resources, I still find this very puzzling. The background in terms of corrections we have to think about is that crime rates dropping. We also have an inmate population that is dropping. We have admission numbers into federal corrections trending downwards.

We have some good news. Community corrections in terms of the number of inmates being released on parole and conditional release is on the rise. So kudos for federal corrections as well as the Parole Board. On the other hand, we see approximately 2,000 extra cells in the system.

As well, in terms of where Canada places in terms of the ratio between inmates and staff, we are at the very top of any country in the world. From the math that we’ve done and the estimate we have, with the new resource being proposed, the $450 million, which primarily will be for in excess of 1,000 new employees, I believe Canada will quite comfortably secure number one in the world. Because of that ratio, we have tons of resources compared to other countries.

What’s puzzling is it adds up to about $70 million for the SIUs ongoing and about $70 million ongoing for increasing mental health services in the prison system. It is well over a thousand employees. What’s problematic is that as the population diminishes, the institutions diminish. We are investing heavily in institutional corrections, when, in my view, there are issues around priorities that we should look at. Community corrections received only about 6 per cent of the overall corrections budget. We should be massively reallocating some of the money to push those who are mentally ill, acutely mentally ill, out of the system. For those who are chronically self-harming and suicidal, we should outsource services so that they are housed in more therapeutic environments in the community. We should do the same with aging offenders who are dying, when they pose very little risk that can be easily managed in the community.

The last subgroup where we need to seriously do things differently is Indigenous people. We should certainly try to reallocate in the community so that they can be subject to care, custody and supervision by Indigenous communities.

So this is quite puzzling for me. European countries, in terms of ratios, have around three-and-a-half inmates for one employee. We’re at one to one right now in Canada and comfortably in the lead, so resources are not an issue. It’s a reallocation and trying to prioritize.

With respect to the $70 million that is being considered, we already know that the Parliamentary Budget Officer has said that the cost of keeping one inmate is around $460,000 a year, and the bulk of that is salary dollars. We’re going to add another $175,000 to $200,000 per inmate with the new money coming in. That is extraordinarily well resourced. I understand that a segment of those employees will be additional correctional officers.

Thirty-eight per cent of the institutions in Canada have more staff than inmates. We even have institutions that have more correctional officers than inmates. So resources, for me, are no longer an issue. It’s an issue of priority and doing the kind of thoughtful work that Ontario did with legislation that brings in the necessary oversight in order to effect change in the system.

Senator Pate: Mr. Zinger, when you mentioned the issue of priority and the percentage and the number of correctional officers, for the new interventions being proposed in Bill C-83, two things were triggered for me. One is that mental health transfers, section 29 transfers, will now be permitted within a prison, which is a novel approach that I don’t think we have seen before. Second, in order to have the enhanced human contact being proposed for individuals rather than locking them up full time, they will be required to have two extra security officers per intervention. Are you aware of that? It sounds like it’s consistent with what you’re concerned about, that the priorities are on security rather than on programming and community intervention.

With that, perhaps you could you also comment on this. After the Canadian Human Rights Commission commented on the security classification of women in particular, Dr. Moira Law did a report that recommended all women start at minimum security. Because you commented on the women in maximum security as well, I’m curious as to what you see the difference being if some of those recommendations of Dr. Moira Law were implemented now in terms of correctional priorities versus what we’re actually seeing?

I still have a question for Mr. Sapers.

Mr. Zinger: The details around how the $70 million will be spent are still not clear. I met with the commissioner and the senior deputy commissioner and asked them questions around that.

It’s clear that the bulk of that $70 million will be to provide enhanced services to those who are in structured living environments. For me, that is clear, but it lacked details. I don’t know how much will be security-driven or not in terms of additional security staff. I know it’s part of the equation, but I don’t know what the percentage is. I don’t have those numbers.

With respect to the secure units, in my view — and I’ve published this in the last two annual reports — in terms of women in corrections, the most problematic situation lies in the use of those secure units. If you visit them, they are excessively restrictive. There are issues surrounding quality of access to programs and services compared to male institutions. I think there would be a way for corrections to try to reduce their use significantly by creating more of a structured living environment, which provides more therapeutic resources, by looking at healing lodges and alternatives to traditional custody, and by taking some of the women who are being mixed in that population who have significant mental health issues, to get them out of the correctional system completely with a memorandum of understanding of a community psychiatric hospital or other residential places.

I think you could dramatically reduce the population being housed in those secure units and use the secure units only in rare instances where historically it would have been those few that end up in administrative segregation. What you would do is not put them in administrative segregation, but it would be separation as opposed to isolation. That would be the purpose of those.

In the statistics I provided to this committee, there are only three women in segregation. These are the ones where perhaps the secure units could be used for that purpose. Other than that, I would agree with you.

Moira Law’s concept is very interesting. It basically says that unless there are big red flags, every woman coming into the system should be classified as minimum. If they misbehave and there’s a reason to increase the security level, then that’s when you do it. The premise is that the initial placement should be in minimum, and then only if there are legitimate and documented concerns around safety and security should you increase the security level. It’s a very interesting approach probably more consistent with creating choices, but the service has never given much consideration to that particular research.

Senator Pate: That was research commissioned by Correctional Service Canada itself, correct?

Mr. Zinger: I believe you’re correct, yes.

Senator Pate: Thank you very much.

Mr. Sapers, thank you for all the work you’ve done over the years as Correctional Investigator as well as in Ontario. You mentioned that the legislation which received Royal Assent but has not been brought into force yet in Ontario would significantly reduce the number of people in segregation.

My understanding is the first iteration of that legislation actually proposed up to four prisons that would have no segregation units at all. There were interventions, I’m told, by some of the correctional unions or a correctional union of officers. Over the years, we’ve seen many policies, including the management protocol for women when you were Correctional Investigator, that were promulgated after the guards’ unions presented them. As the committee has been conducting visits, we have been hearing how much influence has been coming from correctional officers in terms of those policies, even when they may violate the law or, at the very least, interfere with the ability to exercise discretion. We’ve certainly been hearing that from a number of sources. Can you comment on that both in terms of the Ontario experience and the national experience? If anybody else wants to comment as well, they are welcome to.

Mr. Sapers: Thank you, senator.

The legislation in Ontario actually contemplates that there will be no segregation units in any Ontario institution, because the idea is that segregation is a condition of confinement; it’s not a place in the jail. That’s very important in terms of how you manage that experience of decreased movement in association within the institution. Some of the feedback I think you’re referring to is that there was a robust discussion about what it is going to take to get us to that ideal state.

Ontario currently has 25 institutions. They span decades, centuries even, and some are much better suited to the new proposed legislation than others. So the decision was made that a 10-year implementation scheme would be developed to fully operationalize the legislation. Infrastructure renewal, staffing, training, all of those things take time, and so the legislation was to be rolled out in pieces.

The union, the front-line staff, were front and centre and key to achieving that common understanding and embracing the vision articulated in that Ontario legislation.

The front-line staff in Ontario have very legitimate concerns about safety, and you have some very deficient infrastructure there. But going along with that is training around de-escalation. It’s having a different staff mix in terms of having more mental health and health-providing staff, and having better relationships and integration with Indigenous community organizations to deal with some of the specific needs of Indigenous offenders. It’s actually quite a matrix when you get into how you would roll out that legislation, which is again why it took so long.

However, the key point you raise is whether the union exerts influence on key policy decisions. The answer, of course, is yes. If front-line staff are not fully on board, not fully appreciating the nature and degree of the change and what the policy is trying to accomplish, it can be undermined very quickly.

That means you have to have good labour management relations; it means you have to have extremely competent and talented management; and it means you have to have honest discussions so that those legitimate concerns about safety are addressed but that it’s also clear that, in this case, the current use of administrative segregation, the status quo, is unacceptable. You have to bring people along with understanding that and then how you would implement it.

I think this is a shared responsibility of both the front-line staff, their union representatives and the leadership of the correctional organizations.

Senator Pate: To clarify, if I said to you that as we were visiting prisons we heard very different things from managers and from national and regional headquarters than we did from staff on the ground in the prisons, would that surprise you?

Mr. Sapers: No, not at all. There is a disconnect. Certainly that has been my experience in every jurisdiction I’ve worked in. When you actually go to the coal face, when you are actually on-site in an institution, particularly an institution that is more remote or rural, you will appreciate those challenges in a very different way.

That’s no excuse for bad practice. It’s no excuse for illegality. It’s no excuse for not doing your job. But there are real challenges, and those challenges have to be appreciated.

All too often, the people further up the chain are insensitive to some of those realities, and we see that. We see the consequences of that: lack of trust, poor labour management relations, imperfect and highly discretionary implementation of policy. That’s the outcome of that kind of situation.

As I say, it’s a shared responsibility. Leadership cannot simply point the finger at front-line staff and say they’re not doing their job, and front-line staff cannot simply point their finger at legislators or executive leaders and say they don’t understand what the job is really like. Those conversations have to be elevated.

There are a lot of techniques to manage that. I would recommend to you the report on corrections in Ontario, for example, that was released last year by the Independent Review of Ontario Corrections, which discusses a lot of that, as does the most current report on institutional violence. Having this circular conversation where we say the staff aren’t doing their job and they’re just setting up roadblocks is far too simplistic, I think, of a diagnosis of what the issues are.

Senator Boyer: My question is for Dr. Zinger. Your statistics indicate that Indigenous and Black prisoners are significantly over-represented in segregation. I would like to know what your opinion is on why this occurs and what can be done to eliminate the over-representation.

I’d like to hear Mr. Sapers’ views on this as well.

Mr. Zinger: Yes, you’re correct. Certainly when it comes to placement in administrative segregation, Indigenous offenders represent 40 per cent of the segregated inmate population, which is a gross over-representation. The over-representation in the general inmate population is already very significant. We’re looking at 28 per cent of the inmate population being from an Indigenous background, whereas in Canadian society they represent slightly over 4 per cent.

For women, of course, it’s even more troublesome. We’re looking at 40 per cent of the general population of women incarcerated, which is absolutely a nightmare.

In terms of why they would be over-represented in administrative segregation, there are many factors. Federal corrections is still struggling to provide culturally appropriate and timely programs and services to Indigenous offenders, so I think that is part of it.

When Indigenous people come into federal corrections, they typically have higher needs, and those needs are not matched with the level of intervention that is required. For example, they come into the system more affiliated with gangs. They often come into the system with higher prevalence of addiction and mental health issues.

In my view, the service has certainly initiated some efforts, partly in response to the Auditor General’s report on reintegration. They have made a concerted effort to, upon admission, try to address some of these issues; however, the efforts are not matching the demand.

There might also be systemic issues at play, but it’s difficult to parse out those issues and barriers. That is one of the reasons why I believe corrections has done a poor job in implementing the 1992 Corrections and Conditional Release Act when it comes to sections 81 and 84. This was a golden opportunity to do something differently, yet we see the overall section 81 agreements, and the bed space is very low compared to the 4,000 men and women of Indigenous background. If you push a significant number of those individuals and enter into agreements with Indigenous communities, you would basically parse out those concerns around cultural sensitivity, cultural competency and all those things. That is because you won’t teach an Indigenous community how to be Indigenous and what that means.

For me, those were golden missed opportunities, and I’m hopeful the service and the current commissioner will look carefully at her mandate letter and move seriously on some of the recommendations that we’ve echoed so that there is more take on the call for action by the Truth and Reconciliation Commission.

Senator Boyer: Thank you.

Mr. Sapers?

Mr. Sapers: I have three things.

First, I believe the rates of representation you talk about reflect systemic bias in the implementation of correctional practice. I think we have to acknowledge that up front. There is bias in the way these policies are implemented. Part of the reason there’s bias is that the populations that are disadvantaged in the community import their disadvantage into the correctional institutions. It follows them. It’s not distinct.

Second, there has been a lot of academic and practical review of that. The best and most recent retelling in relation to Indigenous men and women in custody would be found in the pages of the reports from the Truth and Reconciliation Commission, and the lingering effects of colonization and how those effects are replicated in the administration of justice and land in correctional institutions. I think we have to acknowledge that.

Third, in order to address that, with new funding being allocated, imagine the opportunity we have to invest differently, to invest in community partnerships so that communities closest to the problems I just pointed out are helping to address those problems. We need to invest in new community partnerships with health, housing and employment. We need to invest in healing lodges.

Fully implement the will of Parliament that was expressed in 1992 with the passing of the CCRA. Dr. Zinger just mentioned this. This would be specifically in response to some of the “way forward” statements from the Truth and Reconciliation Commission.

Invest more heavily in program delivery and education. Change the ratio of investment. Try to balance it a bit better than it is right now, because right now most investment in corrections is still heavily security driven. We need to address that as well.

With new monies on the table, that’s where I suggest it would go, and my prediction would be that that would have some impact on those rates you talked about.

Senator Boyer: Thank you very much.

[Translation]

Senator Brazeau: Good morning and welcome. I am sorry I was a little late. Today is Bell Let’s Talk Day, and I had a minor scheduling conflict.

You mentioned in your presentation that there are currently about 400 individuals in administrative segregation, 40 per cent of whom are from indigenous communities.

In 2003-2004, I participated in an investigation with the Correctional Service and visited a penitentiary in Saskatoon, where a murder had been committed. The experience opened my eyes to the number of indigenous people involved in street gangs, particularly in western Canada.

Do you know how many of that 40 per cent are affiliated with street gangs?

Mr. Zinger: Thank you for your question. In terms of statistics, approximately 20 per cent of the indigenous prison population is identified as being involved in gangs. I do not have the figures for those who are in segregation, but I would guess it would be above the 20 per cent average. The figure of 20 per cent is still huge and much higher, compared with non-indigenous people.

You mentioned the penitentiary in Saskatoon, Saskatchewan. I can tell you that, in my last annual report, the riot that took place in December 2016 was highlighted. The units that caused damage and killed men were inhabited by 85 per cent indigenous inmates, and 50 per cent of the population in those units were affiliated with gangs. So it is a real problem. The service still has not adopted a national gang strategy or initiatives to prevent recruitment and to promote gang disaffiliation. There is still no national strategy, and it’s a very serious problem.

Senator Brazeau: One last question. Of the 400 people currently in segregation, do you have any statistics on mental health issues?

Mr. Zinger: I don’t believe the service keeps statistics on that. All we know is that the research is categorical: the rate of mental health issues in segregation is significantly higher than in the general prison population. Therefore, it is well known that mental health issues can cause conflicts with other inmates or with the administration of the penitentiary and lead to segregation. I don’t think you will find any statistics on that, unless you do it manually.

One of the studies we did contains three years of data on suicide. Fourteen of the 30 suicides that took place in that period occurred in administrative segregation, which is unlikely because administrative segregation is the most safest and most supervised place in the entire penitentiary. The majority of people who died by suicide had identified mental health issues.

Senator Brazeau: Thank you.

[English]

Senator Pate: Dr. Zinger, you mentioned in response to Senator Brazeau’s question about the lack of interventions. I believe we’re going to hear from Mr. Sauvé, who is doing some work on inter-gang disaffiliation and some other folks.

On that issue, once people have dropped their colours or disaffiliated from gangs, how difficult or easy is it to have the risk/threat group designation removed from their file? We’re hearing that it’s difficult, but we don’t actually have numbers. If you have some stats or information that would assist us, that would be very useful.

Mr. Zinger: I think it’s probably a real challenge for the service to determine real disaffiliation and how to wipe it out from an offender’s file and not take it into consideration when it comes to reclassification or even release into the community. That’s why you have to have very acute and very good people who deal with intelligence gathering and so on. I suspect it’s a real problem and not an easy one to solve, but I don’t recall any data on this.

Senator Pate: Is there an oversight mechanism that would allow prisoners or parolees to seek that assistance?

Mr. Zinger: We do receive complaints from individuals who are saying there are inaccuracies in their files. Sometimes the inaccuracies deal with sensitive and protected information, such as a question of gang affiliation.

We sometimes review that material and then respond to a complaint and make recommendations to the service to correct the file if there is something in it that should not be penalizing the offender.

The Chair: We will have to end there. It’s clear that we could continue for the next hour, but we do have another panel. Thank you very much for coming to share your expertise with us today.

Our Senate Human Rights Committee has been studying the human rights of federally sentenced persons. During the study, the committee has held public hearings in Ottawa as well as various regions and has conducted fact-finding visits to 29 facilities. As we draw our study to a close, we have been focusing on subjects that were not fully explored in our earlier meetings.

In our second panel, we are looking at the human rights of federally sentenced persons belonging to vulnerable or marginalized groups, with particular attention to transgender persons. Let me explain that our committee is using the word “transgender” as an umbrella term to encompass transgender and gender nonconforming people and prisoners.

Rainbow Health Ontario has produced a useful guide entitled, Media Reference Guide: Discussing Trans and Gender-Diverse People. With your agreement, this guide can be distributed to you, senators, with translation to follow. We have copies in English if you want them.

We have four panellists with three presentations. From the Canadian Human Rights Commission, we have Sheila Osborne-Brown, Senior Legal Counsel, and she is accompanied by Marcella Daye, Senior Policy Advisor. We also have Kyle Kirkup, Associate Professor, Faculty of Law, Common Law Section, University of Ottawa. And soon, by video conference from Burnaby, B.C., we will have Jennifer Metcalfe, Executive Director, Prisoners’ Legal Services, West Coast Prison Justice Society.

Ms. Osborne-Brown, you have the floor.

Sheila Osborne-Brown, Senior Legal Counsel, Canadian Human Rights Commission: Good afternoon. Thank you, chair and honourable members of the committee, for providing the Canadian Human Rights Commission with the opportunity to take part in your ongoing study on the issues relating to the human rights of prisoners in the correctional system. As you may recall, CHRC representatives also appeared before you regarding this study in 2017.

Chief Commissioner Marie-Claude Landry sends her regrets for not being here today. Joining me today is my colleague Marcella Daye, Senior Policy Advisor at the commission.

The commission very much appreciates you taking the time within your broader study to focus specifically on trans prisoners. We are glad to be here among other invited panel members. We believe that academics such as Professor Kirkup and organizations such as Prisoners’ Legal Services help us all better understand the development of trans rights, the lived experience of inmates today, and the challenges and barriers that still exist.

The commission’s main message today is simple: Trans rights are human rights.

[Translation]

A few weeks ago, your committee marked the 70th anniversary of the Universal Declaration of Human Rights. Last year marked the 40th anniversary of Parliament’s adoption of the Canadian Human Rights Act, which guarantees all Canadians equal opportunity and freedom from discrimination.

Today, these documents that protect human rights are as important and relevant as ever. They have helped our nation make great progress on many human rights issues. The Canadian Human Rights Act gives the commission the mandate to promote and protect human rights in Canada, including rights related to gender identity or expression.

Since Parliament amended the act in 2017, gender identity has been one of the prohibited grounds of discrimination under all human rights legislation in Canada. This protection, enshrined in black and white in our legislation, is an important step forward.

[English]

One year ago, Chief Commissioner Landry was very pleased to see significant improvements in the policies related to trans prisoners in Canada’s federal prison system, such as the placement of offenders according to their gender identity and individualized protocols based on gender identity or expression.

These improvements will help to ensure that the fundamental human rights of all inmates in federal prisons, including trans inmates, are respected. The new policies are a recognition of the importance of an environment for trans prisoners that is free from discrimination. In addition, by treating individuals fairly in prison, there is a better chance of rehabilitation and of protecting public safety.

However, the experience of trans inmates in federal correctional facilities continues to be of concern for the commission. We recognize that changes in operations and culture shifts can take time.

Another challenge is the existing structure. The current federal correctional system has binary male or female institutions only, even as the Canadian population, including the prison population, grows increasingly gender diverse.

Trans and non-binary inmates in federal custody may continue to spend most of their sentence in a facility that is not aligned to their gender identity. Various forms of isolation may be used as makeshift solutions, even though this may have profound detrimental physical and psychological effects.

The commission hopes that as these policy changes take root, trans prisoners will not have to face these types of situations.

In conclusion, we know that no right under the CHRA is unlimited. Not every prisoner request for accommodation will be necessary or reasonable or fulfilled perfectly. Safety, health and cost are always considerations under human rights law. Recognizing trans rights does not mean that cisgender inmates lose their rights to safety and privacy.

At its core, this is about the treatment of human beings in prisons. All human beings are entitled to be treated with dignity and respect, no matter who they are.

The commission is pleased to have opportunities to collaborate with CSC and stakeholders, including members of the panel today, to ensure the protection and promotion of human rights.

Thank you. We will be pleased to take your questions at the appropriate time.

The Chair: Thank you.

Professor Kirkup?

Kyle Kirkup, Associate Professor, Faculty of Law, University of Ottawa, as an individual: Thank you, Madam Chair. Good afternoon. My name is Kyle Kirkup, and I am a professor at the University of Ottawa Faculty of Law.

Over the past decade, I have published a series of articles that look at the legal regulation of gender and sexuality in Canada. One, for example, is a recent article in the University of Toronto Law Journal in 2018 that examines every reported transgender human rights decision dating back to 1982. I have tabled this article with the committee.

I have also published a series of reports on trans human rights issues in policing and corrections settings, including for the Office of the Correctional Investigator, the Ontario Human Rights Commission and the Ontario Association of Chiefs of Police.

My main point this afternoon is a simple one. In order to comply with Canadian human rights law, self-identification must be the guiding consideration when making decisions about the admission, classification and placement of trans people in federal prisons.

But as we have this conversation this afternoon, I think it’s important to recognize that the existence of trans people in the federal system is not new. We have first-hand accounts of trans people in custody dating all the way back to the 1960s, and it is critical that we centre these voices in this conversation.

I think, for example, of someone like Katherine Anne Johnson. She was a trans woman who entered the system in 1968, when there were no trans-specific policies, and trans women were routinely placed into men’s institutions. Here they reported experiencing discrimination, harassment and violence at the hands of men. If they were to complain to guards, they would be routinely placed into administrative segregation, which had profound psychological implications.

Throughout the 1970s and the 1980s, we saw trans people and their allies seeking to bring about change. Johnson started a letter-writing campaign to everyone she could think of in the institutional context. As a direct consequence of her letter-writing efforts, the CSC issued its first formal policy in 1981.

Over the next two decades, we saw a series of minor changes to this policy. In the early 1990s, trans women like Synthia Kavanagh pushed for further reforms. As a result of a challenge that she brought in the early 1990s, Kavanagh was able to access gender-affirming surgery in 2000 and was later moved to a women’s facility.

At the same time that folks have been doing this work to push for reforms to the prison system, we’ve seen the ascendancy of trans human rights protections across the country. As of 2017, every jurisdiction in Canada — provincial, territorial and federal — have added gender identity and/or gender expression to their codes.

In a growing body of decisions, we’ve seen self-identification, rather than anatomy, be the central consideration. I think, for example, of a 2012 decision from the Human Rights Tribunal of Ontario, XY. v. Ontario, which held that requiring people to undergo surgery to access basic government services, such as access to identity documents, constituted discrimination.

More recently, we’ve seen this move toward self-identification start to make its way into prison policies. In 2015, both Ontario and British Columbia introduced modernized policies that move toward self-identification unless there are overriding health and safety concerns that cannot be remedied.

Nearly 50 years after the first reported trans people in the system, and after every jurisdiction in Canada has recognized trans human rights, we see the CSC issuing Interim Policy Bulletin 584 in late 2017. This policy, which emphasizes self-identification, is a step in the right direction, but there are significant challenges.

First, rather than introducing a single policy instrument, what we have is an interim policy bulletin that makes changes to about 15 different areas, everything from clothing entitlements to personal goods to search procedures.

Second, there is a need for open and transparent data collection. It would be useful to know where people are self-identifying as trans. Are there particular pockets of the country where this is happening? This can be used for a variety of reasons, but a concrete example would be when administrators are making infrastructure decisions: Where should private washrooms or shower facilities be built? It would be useful to have that kind of data.

Third, there is a clear need for ongoing training to make sure that the policy lives up to some of the expectations that many have. This training ought to be delivered across the system, and it should be designed and led in consultation with trans people.

To conclude, trans people, particularly those who are situated at multiple axes of oppression, are criminalized for a variety of reasons. There is strong literature to suggest this, including over-policing and a lack of access to resources.

While recent policy changes at the federal level are an important step forward, a prison will always be a prison, even if it is slightly more sensitive to the realities of trans people. Ultimately, I would encourage us to move away from using the criminal law in a misguided effort to try to solve complex social issues. Thank you very much.

The Chair: Since our next witness has not joined us yet, we will go to questions. When she joins us, we will hear her testimony.

Senator Ataullahjan: Thank you for your presentation. I would like to know what would be appropriate training for the staff to deal with trans people. Does anything need to be changed? I know there are many challenges faced on both sides. What would be best practices? Is there anything we could learn from other countries?

Mr. Kirkup: This is an issue since prisons are so profoundly essentialist in their gender; you’re either in the M category or F category.

Jurisdictions around the world have been grappling with this issue for a long time. In the United States, there is a unit in the Los Angeles County Jail that developed what they colloquially call the “pink wing,” where people who self-identified as LGBT would be placed into this separate unit in the prison. This raised a series of troubling questions. Prison administrators were having to make decisions about whether you were really identifying as LGBT.

There’s been a variety of different approaches. The Vanier Centre for Women in the Ontario system at one point considered a wing in the prison to house trans-identified women. That was ultimately abandoned and we’ve now moved toward this system of self-identification.

What’s really important on the training front — and this comes out in some of the work that I’ve done and my expert report for the Ontario Human Rights Commission — one of the best practices is to try to make sure there are active scenarios, because there will be many prison administrators who have never met a trans person in their life and are suddenly making deeply personal and profound decisions about how particular clothing items ought to be handled, how pronouns should be used. A best practice would be to ensure that before someone goes through all the protocols that are coming out of the new policies, they’ve done some practising and learned where there are opportunities to improve.

At the moment, I’m concerned that an interim policy bulletin that makes changes to at least 15 areas and may not be supported by that kind of training protocol will mean that there will be informal pushback against the policy, perhaps, or a lack of knowledge and understanding about how to respect the human rights and dignity of trans people in correctional facilities.

Senator Ataullahjan: To follow up, how would you rate the success of the pink wing or having the special wing for trans people?

Mr. Kirkup: I think they have not been very successful.

One of the problems with the system in Los Angeles is that prison guards ended up having to make decisions about who was “really” LGBTQ and really trading in very stereotypical understanding. One of the questions from the early iterations of the policy was to ask anyone seeking to enter the pink wing their knowledge of Judy Garland. “Name me two bars in West Hollywood you would go to on a Friday night.” It played into stereotypical, arguably white LGBTQ stereotypes. There were real concerns about how that policy was being managed.

Beyond that kind of stereotyping, the other problem with that system is that the pink wing assumes everyone under the LGBTQ umbrella really has the same sets of concerns or needs. We’ve found that is certainly not the case. There’s profound diversity across our communities. I would say the reason we’ve moved away from that approach is because it didn’t work. I don’t think it was a successful approach. The better approach is to move toward a system of self-identification unless there are overriding health and safety concerns that cannot be remedied.

Senator Ataullahjan: Thank you.

Senator Boyer: Professor Kirkup, the CSC policy regarding trans prisoners appears to relate to only treating people with gender dysphoria. Can you tell me about a more robust policy that would adequately address the needs of trans prisoners?

A follow-up to that is the rights of trans prisoners, especially those who don’t want to undergo gender affirmation surgery, should also be addressed. Can you tell me how that should be addressed?

Mr. Kirkup: I think it’s an important point because historically trans identities have been medicalized, just like homosexuality was medicalized in previous versions of our social reality. There’s been a movement away from those medical realities.

It’s very important in the federal system that trans-identified people have access to appropriate health care, things like hormones if they are seeking to have hormone treatments, doctors, mental health supports, those kinds of things. What was happening in some of the early iterations of the policy was that trans women were often cut off from their hormones. One day they would have access to their hormones, and the next day the hormones would be gone. That produced negative behavioural changes. So it’s really important that there is access to robust health care, both physical but also mental health supports throughout the system.

I do worry that by labelling a policy in the previous version “gender identity disorder,” now “gender dysphoria,” we miss the folks, as you say, who might reject that kind of medical understanding, who might not want to access gender-affirming surgery. Those decisions should be respected. It shouldn’t be the state’s job to tell someone that in order to be treated with human rights and dignity that they’re required to undergo a surgery.

There has been a series of human rights cases. For example, XY v. Ontario is important because the Ontario government was requiring people to undergo surgery in order to just change the sex marker on a driver’s licence or a birth certificate. So I think it’s really important that we move away from requiring or incentivizing people to undergo surgeries they don’t want to undergo just so they can be treated with a certain level of dignity and respect.

Senator Boyer: Thank you for identifying those areas.

The Chair: I think Ms. Daye wanted to respond to that question as well.

Marcella Daye, Senior Policy Advisor, Canadian Human Rights Commission: On the topic of what a more robust policy framework might look like, I would agree with many of the comments made by Professor Kirkup.

I would add that the Canadian Human Rights Commission was consulted in the development of the policy bulletin, and it does in fact reflect many of the international best practices that are in place.

We’re also aware that Correctional Service Canada has identified additional places where CDs do need to change. Fifteen specific areas are listed in the policy bulletin, and they’re still undergoing examination of additional policies that may need adaptation.

I’ll also flag self-identification, unless there are health and safety concerns that cannot be resolved. It is a fundamental best practice for both placement within institutions and for placement in safety or isolation for protective custody. It is a tool that has been used. So in addition to things like the pink wing, we have also seen the use of administrative segregation as a tool within institutions to protect trans folks from transphobic violence within the institution itself.

You’ve probably heard this phrase before, and I know I’ve said it: When all you have is a hammer, every problem looks like a nail. I would echo many of the comments you’ve heard on the use of segregation and isolation tactics, especially in the methodology being used for trans prisoners to keep them safe. If that is the only tool that CSC has to keep trans prisoners safe, it is simply not adequate. It provides additional psychological and physical detrimental effects, and a best practice needs to examine other methods to keep trans folks safe. I will say that I think CSC is open to examining those.

Research has shown that even placement based on gender identity is not sufficient enough to eliminate transphobic violence in jails and prisons. Dr. Greta Bauer, the principal investigator on Trans PULSE research that was done out of Ontario found that as one of the research findings in her work. More has to be done than simply placing a person in the correct institution that is aligned with their gender identity. In fact, in some cases, placement aligned with gender identity may be unsafe and may not be the option the prisoner wants to avail themselves of. Therefore, our recommendation to CSC was to undertake that examination of the best placement and the safest placement in consultation with the prisoner themselves.

We’re also aware that inmates may be transferred within federal institutions quite often. We encourage them to have that conversation at the point of transfer to any new institution so that a placement that originates in one area of the country may be different, for example, if the inmate is transitioning, or if they feel unsafe because of the nature of a different institution. So that’s another good practice we found.

I will also flag some international documents that have examined good practices, including the United Nations Independent Expert on sexual orientation and gender identity or expression. He issued a number of reports, one of which actually cited the Ontario policies and practices as good practices to follow. We anticipate that they will be examining the changes that have occurred at Correctional Service Canada as well.

Senator Boyer: Are they actually implementing your Human Rights Commission recommendations?

Ms. Daye: At Correctional Service Canada?

Senator Boyer: Yes.

Ms. Daye: Interim Policy Bulletin 584 is the first step toward full implementation. There’s a cascade of implementation steps that have to be taken. The policy bulletin was the interim document, so it replaced previous policies, previous CDs, including CD 800, which Professor Kirkup mentioned.

CD 800 was specifically problematic. They are in the process of replacing CD 800. It will probably be one of the first new policies that we see as a result of the policy bulletin. But the policy bulletin does lay out very specific principles at play, including the principle of self-identification, of using someone’s correct name and pronoun, of allowing them to order, for example, clothing and other accoutrements from both the male and female catalogues. It also lays out other steps they are taking, including the continuity of health services, which is a critical piece of advice that the WPATH, World Professional Association for Transgender Health, has identified as critically important for institutions.

The last thing I’ll say — and Sheila might have something to add — is that even with all of these changes, there are still gaps. There is the statistical gathering gap, the program evaluation gap, a training gap, a championship and leadership gap. Those still exist. One of the primary issues is the question of non-binary individuals. Because of the nature of the structure, those who identify neither as male nor female nor those transitioning do not find themselves even in the adapted policies that are planned for CSC. So we anticipate more work on that.

The Chair: Thank you.

Ms. Metcalfe has joined us now. I think we should hear her testimony, and then we’ll return to questions.

Jennifer Metcalfe, Executive Director, Prisoners’ Legal Services, West Coast Prison Justice Society: Thank you very much. I apologize for my tardiness. I got confused by the time zones. Rookie mistake.

Thank you so much for inviting me to speak about the human rights of vulnerable prisoners, with a focus on transgender prisoners. I’m Executive Director of Prisoners’ Legal Services, a legal clinic for federal and provincial prisoners in British Columbia.

Over the past 12 years, I have represented many trans prisoners with human rights complaints against Correctional Service Canada. Many of my clients were women who were forced to live in men’s prisons where they were vulnerable to sexual violence, were strip-searched by male officers, were often taunted and harassed by officers, were referred to by the wrong name and pronouns, and had difficulties receiving women’s clothing and items needed to express their gender identity.

Prisoners were denied gender-affirming surgery if they had not lived in the community for a continuous year because of their incarceration, despite living in their gender for their entire adult lives.

In 2015, Prisoners’ Legal Services filed a human rights complaint seeking systemic remedies to ensure that all trans prisoners’ human rights, safety and dignity are protected. After PLS filed this complaint, CSC policy was changed to require health services to be provided in accordance with international standards of care. This allowed prisoners to access gender-confirming surgery when medically necessary.

On January 2, 2018, CSC issued an Interim Policy on Gender Identity and Expression that ensures that trans prisoners are placed in men’s or women’s institutions or halfway houses according to gender identity, if that is their preference, unless there are overriding safety or security concerns that cannot be resolved; that they can receive clothing and personal items in accordance with their gender identity or expression; that they’re given the choice of the gender of officers who search them or conduct urinalysis testing; that they’re addressed by appropriate names or pronouns in oral or written communication; that they’re not required to share a cell with another prisoner if their gender identity would make them vulnerable to violence; and that they are provided private and safe shower and washroom facilities whenever possible.

PLS is pleased with these significant policy changes, which we believe improve the safety and dignity of trans prisoners in Canada.

Since the policy changes were announced, a number of trans women have moved to the Fraser Valley Institution for Women in British Columbia. We have received far fewer complaints of discrimination based on gender identity or expression.

The trans women I spoke with report that life is much better at FVI, where they feel safe and more comfortable being with other women. However, we have received some reports of the interim policy not being followed, which indicates a need for policy clarification and additional training for staff and prisoners. For example, we have received reports of staff not allowing trans prisoners the choice of the gender of staff who conduct strip searches, contrary to the policy.

We have received other reports of trans prisoners facing barriers by CSC to changing their names with vital statistics. CSC requires a legal name change before it will use preferred names on Offender Management System, OMS, documents. One woman I spoke with reported that she had been trying to get her name changed since 2012. CSC needs to develop clear guidelines for staff to facilitate fingerprinting and documentation.

One client’s case illustrates the need to clarify the policy on placement by gender identity. This client identifies and presents as a woman but was placed in a men’s halfway house. She was suspended and returned to custody at a men’s institution where she reports a prisoner tried to sexually assault her. She was released back to the community to the men’s halfway house where she reports she was sexually assaulted by a resident. She applied to go to a women’s halfway house and was screened and approved, but she was not moved there.

She reported having so much anxiety about living in the male halfway house that she went UAL and attempted suicide. She was then returned to custody and held in prolonged segregation at a men’s prison because the women’s institution refused to take her. She was finally accepted at a women’s prison. She was released to the community and was suspended again and returned to a men’s prison where she was held in segregation. She was finally moved to FVI for Women.

Under the current policy, trans prisoners should be placed according to gender identity, if that is their preference at the first instance, without needing to go through any additional process. Certainly, once a prisoner is accepted at a women’s prison, she should be classified as a woman and not be forced to go back to men’s halfway houses or institutions again. One client’s paperwork illustrates the need for training for staff and other prisoners. For example, her assessment for decision at FVI cites another prisoner feeling “emotionally triggered” by her “male voice.”

All of the trans women I spoke with at FVI agreed that training was needed for staff and prisoners. Although the level of overt discrimination is lower than in men’s prisons, the women I spoke with felt that there was a lack of understanding about what discrimination is and what it feels like. One woman said, “There is a big gap between calling us women and treating us as equals.”

Thank you.

The Chair: Thank you, Ms. Metcalfe.

Before we return to senators’ questions, Ms. Osborne-Brown, would you like to respond to that last question as well?

Ms. Osborne-Brown: Thank you, Madam Chair.

I wanted to mention that Interim Policy Bulletin 584 does apply to many Commissioner’s Directives that are still in existence, but parts of 584 are to override anything that would be in those Commissioner’s Directives that would not be in accordance with 584. The only exception would be GL 800-5, which was the Gender Dysphoria Policy. That has actually been revoked.

This causes some concern to the commission. As I mentioned, we do still have some concerns. There is the interim policy bulletin, which we are certainly in favour of. When it came out about a year ago, the commission had a joint press release on that with PLS and CSC. But, of course, it needs to be carried forward. CDs need to eventually be changed on an individual basis. We’re glad that this is in place because it means that changes happen now. They’re happening now and they have happened over the last year. But as my colleague Ms. Daye mentioned, there are still gaps that need to be filled. So we’re looking forward to hopefully seeing the new health regulations and guidelines soon.

The Chair: Thank you very much.

Senator Pate: I have three areas of questioning for all of you.

One, I have been advised that corrections is not actually keeping track of the location and number of trans prisoners in the prison system. One of the challenges is that both trans men and trans women, as they self-identify, are mostly choosing to stay in prisons for women. There have been issues around trans women coming into those prisons with previous experiences of misogynist violence as men and concern about how that’s being documented. Is it your understanding as well that the numbers are not being accurately captured and that the locations are not being reported? If you have comments on that, I would appreciate it.

Second, what would be the overriding health and safety concerns that each of you would see as appropriate to not having a placement? Each of you mentioned them, but what are they? I gave an example of one that has certainly been raised with a number of us.

The third is one that I’ve raised individually with some of you in different contexts. It puzzles me that sections 81 and 84 have not been utilized to decarcerate or to provide options for individuals to not only not be in segregation but to be in appropriate supportive environments. When we talk about non-binary individuals, it strikes me that this is a prime opportunity. Do you see the proposed amendments in Bill C-83 to those provisions further interfering? Right now, both sections 81 and 84 would be available to non-binary and trans. Basically, any prisoner should have access to those, although we know that’s not how the policies have been promulgated.

Those are my three areas.

Ms. Metcalfe: To your first question, yes, I agree there needs to be more tracking of the numbers of people.

The second question was about the caveat and when it would be appropriate. I think the caveat is still discriminatory, that trans people should be treated equally. I think one way the caveat might be used appropriately would be if a trans man wanted to go to a men’s prison but the security review revealed that it wouldn’t be safe for him to go. But I think the institution they go to should ideally be up to the prisoner’s choice.

And, yes, I also agree that all mechanisms for decarceration should be used as much as possible.

Ms. Osborne-Brown: Perhaps I can first address the overriding health and safety concerns. I think that like in many areas of human rights law, of course health and safety can be taken into account, usually in the undue hardship analysis, when there’s a complaint. However, I think that in this case there is a certain amount of discretion, and that is of some concern to the commission. We would like to see more guidance on what’s going to be applied.

There is a recent case from the BC Human Rights Tribunal. I don’t have the name on the tip of my tongue, but I can get that for the committee. It came out a couple of years ago. It was a preliminary motion that dealt with a complaint by a trans woman who had been put into a men’s institution in British Columbia and whether or not that would be dismissed under the BC Human Rights Code on a preliminary basis.

It was interesting that the reasons the complainant was not put into a woman’s institution were actually enumerated for the complainant, and some of those related to safety considerations. One of the reasons the complaint was not dismissed on a preliminary basis was that the prison officials didn’t look into that in a substantive way. Their decision to keep this complainant in a men’s institution was based on perhaps not looking into her situation, doing an individual assessment.

That would be the crux: An individual prisoner’s situation, history and health would need to be looked at in terms of safety and health considerations. Yes, there will be an overall policy, but the prisoner herself and her individual situation would have to be looked at — and not relying on stereotypical factors, for example. Perhaps Ms. Metcalfe can talk more about that with regard to individual situations that she may have encountered, but that would be the commission’s position.

Ms. Daye: I can add that the tenet my colleague mentioned is part of every human rights code across the country. It applies both in provincial and federal jurisdictions that there are limitations and there will always be health and safety considerations.

The example Ms. Metcalfe gave about somebody feeling that their own safety might be in jeopardy if they were to be placed in an institution that nevertheless aligned with their gender identity is an important one.

Two cautions that we would give around those topics are similar to what my colleague mentioned.

The first caution is that trans folks, by definition of being trans, should not be over-classified or stereotyped as being either violent or predatory. That is a stigma that often trans folks live with, and it needs to be debunked. There needs to be education on the ground so that those stereotypes and inaccurate stigmas do not result in discrimination, either in placement decisions or in the ability of the institution to provide a safe and healthy environment for rehabilitation.

The second caution is that the fear of either other inmates or staff harming a trans prisoner should not be used as an easy out. There needs to be — again, I fall back on this — strong education and training to ensure that other individuals in the institution do not threaten, harass or perpetrate violence on those trans inmates. Trans inmates, we know, do face violence both from other inmates and from staff.

The Chair: I have a supplemental to that question. Speaking about the rates of discrimination and how widespread it is and the number of cases that go before human rights tribunals, I’m wondering, on the other side of that, are you aware whether or not there has been training for CSC staff but also for other prisoners as a way of preventing and addressing the widespread discrimination?

Ms. Daye: My fellow panel members may have additional insight into that. I do know that we have had conversations with a number of staff at CSC as they consulted on the policy bulletin itself and as they began to have discussions about how to roll it out. Those were brief discussions, I would say.

We would advocate for what is needed, namely, a much more comprehensive approach to this training, partly to debunk and jostle out the stigmas, stereotypes and prejudices that people have. It needs more in-depth training.

I am aware that other jurisdictions, such as Ontario or B.C., may be undertaking training. There is communication, we know, between Correctional Service Canada and other prison agencies in the provinces, but we have not seen excellent training. I have not seen any that I would give an A-plus to. I would say it’s an ongoing challenge.

I would also say that the independent expert, the SOGI expert at the United Nations, had flagged that a large gap was in the evaluation of whether or not training, even where it did take place, was actually effective in shifting people’s perceptions in order to reduce discrimination, harassment and violence. That remains a gap that we have not seen filled.

Ms. Osborne-Brown: I would add, Madam Chair, that the training is provided for. Training is mentioned in Interim Policy 584 but just a very short mention. The other thing we would encourage is that any training that is going to take place be done very much in conjunction with talking with persons in the trans community and with advocacy groups. Of course, the commission is happy to provide input as well whenever there’s any training on human rights matters.

So I don’t forget to mention it, Senator Pate, the case I referred to earlier is Lovado v. BC (Ministry of Public Safety & Solicitor General), 2017 BCHRT 115.

The Chair: Ms. Metcalfe, do you have anything to add?

Ms. Metcalfe: I know that at the Fraser Valley Institution for Women there has been some interest among prisoners in arranging for training with some trans community organizations and Prisoners’ Legal Services about the new policy, but it hasn’t been facilitated yet. I think there is some training for staff, but I don’t think it has been extensive enough.

Going back to Senator Pate’s question, one way that the concern about trans women who may have a history of violence against other women is being addressed, to my understanding, is when there’s a transfer to the women’s system, a new security classification is conducted in accordance with the gender. If it’s a woman, they go through the women’s reclassification process, so concerns about violence against women would be addressed through that security reclassification.

Mr. Kirkup: I think all the panellists have done a very nice job of setting out questions one and two. The piece I want to pick up on is decarceration.

There was a 2013 case from Nova Scotia, authored by Justice Scaravelli, where a trans person was growing marijuana plants in the pre-legalization world and was eventually charged with a series of drug-related offences. At that point, they said they were growing the plants because they were not able to assess gender-affirming surgery because at the time Nova Scotia wasn’t paying for it. Justice Scaravelli, when making a decision about whether a custodial sentence would be appropriate in that case, said, “I take notice that a trans person will face extreme discrimination in the system,” and he actually ordered a non-custodial sentence.

The worry I have about some of the conversations we’re having now is if you start to change the policies, do you make it more difficult for the Justice Scaravellis of the world to say, “I’m going to take judicial notice of the fact that actually it’s inappropriate for a trans or non-binary person to be in the system in the first place”? I still think that because of the profound discrimination and harassment that folks have been experiencing for decades in the system, we do have to do this work, but I also want us to not lose sight of thinking outside the walls of the prison.

Ms. Daye: I have a final word on that. Both the Canadian Human Rights Commission and other bodies have made submissions to the United Nations Committee Against Torture to note that the conditions of incarceration for trans folks can rise to the level of torture. And the special rapporteur on torture has flagged that the treatment of trans folks while incarcerated should not provide additional burdens or additional punishment than other detainees.

To me, this question of trying to find a safe environment leads directly toward consideration of sections 81 and 84. It seems to be a very reasonable piece that already exists in the statute and should be explored further.

Senator Boyer: I have a question about Indigenous prisoners. We heard from the last panel about the overrepresentation of Indigenous prisoners, particularly in segregation. Has any data been collected on how many of those are trans prisoners? And are there advocacy groups specifically for Indigenous trans prisoners? Does anybody know?

Mr. Kirkup: I don’t think we have good data on this. The only data I can think of is the Trans PULSE study from 2010. A very small number of trans-identified Indigenous people, or two-spirited people as they sometimes identify, report experiences in the system. This survey was conducted with trans people who had received health care in Ontario or lived in Ontario. The trans folks in prison reported experiencing high levels of discrimination in the system. It was often very difficult to identify: “Was it discrimination because I’m Indigenous or because I’m trans?” Of course, it’s intersecting, working together, but that’s the only data I can think of that even touches upon that really important question.

Ms. Daye: I’m looking at the Trans PULSE study. They found 7 per cent of those who identified as trans also identified as Aboriginal, which is the word they were using then, but that doesn’t give us the number of trans folks who are incarcerated. What we do know is there’s overrepresentation individually of both of those groups, but we do not have good intersectional data.

I would flag that the Trans PULSE study that was done in Ontario — starting in 2010 — has been funded by the Canadian Institutes of Health Research to be scaled up for a national study. One of the areas they will be looking at is Indigenous, trans and two-spirit persons. We expect that additional data will come from that.

I will say that trans folks, like Indigenous folks, have suffered a lot of systemic discrimination in the real word. They suffer social and economic disadvantage, which flows with them into the institution. Trans folks suffer enormous degrees of harassment and discrimination in housing and health care services. They avoid emergency services. They put their lives at risk. They avoid public spaces, and they have unmet legal needs. In fact, the HALCO, HIV & AIDS Legal Clinic Ontario conducted a survey and did an initial report that was recently released. They did a study of trans legal needs. They found that discrimination was by far the greatest unmet legal need for trans folks and it flowed through many social and economic aspects of life.

When we’re dealing with the prison environment, CSC is in fact the health provider, the houser, the landlord and the neighbour. We’re dealing with an environment where they are pulling in all of their history of discrimination and harassment from that. And with the Aboriginal and Indigenous inmates, of course, there is the colonial harm that flows from that.

Senator Pate: Leading from some of your last comments, would it be fair to say that in addition to knowing the number of trans prisoners identifying as non-binary, knowing the intersections in terms of race would be useful? Would that be something you would like to see the committee recommend?

Ms. Daye: I can see heads nodding. Absolutely, a strong recommendation that getting good data and good disaggregated data is critical. We are aware that the Government of Canada has put in place a new section at Statistics Canada. They have expanded the definitions of sex and gender for the use of Statistics Canada, so they are thinking through the methodologies by which they can rigorously examine and gather good data on this.

They are also looking at diversity and inclusion statistics writ large, including better Indigenous statistics. We do hope that an element of that rigour and methodology that can be brought within CSC.

The last thing I’ll flag is that there is a researcher with whom CSC has worked recently in the past. William Hébert, who I believe is working out of the University of Montreal right now, has worked directly with CSC and received permission to do a number of interviews with staff and with trans inmates. I would encourage this committee to reach out as he may have recent and current research on that.

The Chair: That’s very helpful. Thank you.

Ms. Metcalfe, do you have anything you want to add?

Ms. Metcalfe: Not specifically about that but just in terms of the kind of recommendations the committee might make to address intersections of discrimination grounds. I’m not sure what’s happening with Bill C-83 regulations, but one of the ways we see people being discriminated against, including trans prisoners, is the security classification criteria under section 18 of the regulations, which includes high institutional adjustment rating. We see that it tends to be used against prisoners who have mental disabilities, as well as trans prisoners and Indigenous prisoners when Gladue factors are used against them in their security classification. We would encourage the committee to look at that section and eliminate that high institutional adjustment, which I think is an indication of needs that should be addressed rather than a risk of the person being violent against other people. I think escape risk and security risk should be the only factors used to increase the person’s security classification.

The Chair: Thank you all for your very helpful comments, the recommendations that you’ve made and the opportunity for us to go a bit deeper with the conversation.

One thing I would note in the conversations around intersectionality and the experiences of Indigenous trans people is we have heard repeatedly that it’s very similar for Black trans people as well. So when we’re looking at those recommendations, we want to make sure we’re being inclusive in terms of including those voices. So thank you very much for being with us today.

Committee members, we have some administrative matters to discuss briefly. Is it agreed that the committee continue meeting in camera?

Hon. Senators: Agreed.

The Chair: We will suspend for five minutes and then resume in camera.

(The committee continued in camera.)