Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 60 - Evidence - May 16, 2019
OTTAWA, Thursday, May 16, 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 10:31 a.m. to give clause-by-clause consideration to the bill.
Senator Chantal Petitclerc (Chair) in the chair.
[English]
The Chair: Good morning. Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[Translation]
My name is Senator Chantal Petitclerc, from Quebec. I’m pleased to be chairing this meeting.
Today, we’re completing our study of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. Before proceeding with the clause by clause consideration of this bill, I’d like to remind the senators of a few details. First, if you have any amendments — and I see that we have about 22 — please read them. This meeting is televised. The people who are watching us probably want to know the purpose of the amendments.
Each amendment is numbered and bears the initials of the senator who proposed it, along with the clause in question. If a senator has proposed two amendments to the same clause, a letter is also included to distinguish them. This format will ensure that the meeting runs smoothly.
We also want to point out that the meeting will end at 1:15 p.m. As you know, the Senate sits at 1:30 p.m., and we’re not allowed to sit for longer.
As chair, I’ll do my best to ensure that every senator who wishes to speak can do so. I also count on your cooperation for the proper completion of this clause by clause consideration. I’d like to remind the senators that if they have any doubts about the results of a vote, they can simply request a recorded division to clarify the results. In the event of a tie vote, the motion will be defeated.
[English]
I know it is the practice to do this at the end of clause-by-clause, but I want to take a moment to thank our clerk and our analysts right at the beginning because they did an amazing job making sure that they had time last night to prepare the amendment package that you have in front of you, and we thank them for that. We do realize that you did receive those packages late. Therefore, rest assured that we will give you the time that is needed to comment, to question and to get the answers that you need to make your decisions on those amendments, and we will respect that.
[Translation]
Do you have any questions about this?
[English]
Before we begin, I want to mention that we have some officials here with us to help us go through that process.
[Translation]
We’re joined by Angela Arnet Connidis, Director General, Crime Prevention, Corrections and Criminal Justice, at Public Safety Canada. We’re also joined by Luc Bisson, Acting Director General, Executive Secretariat and Chief of Staff; and Lee Redpath, Executive Director, Structured Intervention Units, at Correctional Service of Canada. Lastly, we’re joined by Juline Fresco, Counsel; and Pierre Covo, Counsel, at the Department of Justice.
[English]
We also have Mr. Marty Maltby, Acting Director General, Aboriginal Initiatives Directorate at CSC. Thank you for being here.
With that, if there is no other business, we will begin clause-by-clause. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry? I believe there is an amendment on clause 1.
Senator Kutcher: The amendment reads:
“mental health assessment means an assessment of the mental health of a person conducted by a medical professional with recognized specialty training in mental health diagnosis and treatment, such as a psychiatrist, psychologist or psychiatric nurse or a primary care physician who has had psychiatric training. (évaluation de la santé mentale)”.
The purpose of this amendment is to add greater certainty that the personnel conducting the mental health assessment have the necessary professional background to do so. The act talks about a health care professional. The concern here is that many health care professionals do not have the skills necessary to conduct a thorough and appropriate mental health assessment consistent with our knowledge of the system and what we heard in testimony.
Structured intervention units will, compared to previous systems, as we’ve heard in testimony, have mental health at their core. Therefore, we need to ensure that the proper and appropriate mental health assessments are done correctly. So, again, this amendment is there to provide greater certainty that the person who is actually doing the mental health assessment has the required professional training to do so.
The Chair: It is moved by the Honourable Senator Kutcher:
That Bill C-83 be amended in clause 1, on page 1, by adding the following after line 8:
“mental health assessment means an assessment of the mental health of a person conducted by a medical professional with recognized specialty training in mental health diagnosis and treatment, such as a psychiatrist, psychologist or psychiatric nurse or a primary care physician who has had psychiatric training. (évaluation de la santé mentale)”.
Senator Eaton: Senator Kutcher, I completely support your amendment, but I was just wondering, what if the person has been given a mental health assessment at sentencing or just before sentencing?
Senator Kutcher: Thank you for your question, senator — a very important one and a very astute one. Over a period of time, even a short period of time, for people who have a mental illness, things can change very rapidly. So, at the time of sentencing, somebody can have been given a diagnosis and even a treatment that has been instituted, but by the time they come to the institution, there can have been major changes occur. Either the illness itself has changed, or sometimes the treatments for the illness have raised difficulties that were not there previously and they need to be addressed. So therefore, a fresh set of eyes and another look really needs to happen.
Senator Munson: I would like to ask the officials their viewpoint on this amendment. There have been some folks, the last of our witnesses, saying that, basically, there are not enough people in the world that would be applying for these positions. It is much better to earn a substantial amount of money on the outside as opposed to getting inside the system, where it is very difficult. Under the law right now, do you believe that there are enough mental health assessment means going on at the present time?
Jennifer Wheatley, Assistant Commissioner, Health Services, Correctional Service of Canada: My understanding of the proposed amendment is that it is speaking in language we use to scope of practice and competency, so you wouldn’t have a health professional who does not have mental health assessment within their scope of practice, as defined by their regulatory body, and who is not competent in it, to do the assessment. Certainly we would support that. Health professionals need to have any activity within their scope of practice, and then they also have to be competent to do it. Training is a big part of becoming competent, but training also includes mentoring, coaching and ongoing formative evaluation. In my understanding, speaking to the health professional needs to have assessments within their scope of practice, and then also be competent to exercise that element within their scope of practice, we are supportive.
Senator Klyne: Senator Kutcher, respecting this, particularly around the reference to the qualifications, I’m wondering if there is a phased approach to the screening and then assessment, or just straight to the assessment?
Senator Kutcher: I think that would be the authority requirements of the institution to decide. Screening is not the same as assessment. Screening for risk is not the same as assessment. Screening for suicide risk is not the same as assessment. This amendment does not say, “Don’t do screening.” But it says in addition to whatever else you do, when the assessment is done, you need to make sure the proper professionals with the proper competencies are doing that assessment.
Senator Seidman: I would completely support this, Senator Kutcher. From my point of view, this is a really important amendment because it offers a definition right at the beginning of the legislation so that we’re clear on what a mental health assessment means. The definition makes it very clear who is qualified to conduct a mental health assessment. I would support this wholeheartedly.
The Chair: Any more questions or comments?
Senator Poirier: I have a comment. I agree with this, too, senator. If we remember, one of the witnesses we had yesterday — I think it was Mr. Godin — said that many times, if something happens after a certain hour of the day, they are faced with having to deal with something. And sometimes it is hard, because they don’t have the expertise or the training to deal with the situation on hand, but because they are alone, they have to do it. So I feel this is really important and I do support it, too.
Senator Forest-Niesing: I agree as well. I support this amendment. In fact, one element of this amendment that I applaud is the inclusion of primary care physicians who have received psychiatric training. The reason for that is my concern with requiring specialized individuals to conduct the assessments risks creating a bit of a backlog or a delay in accessing that and completing that assessment process. The inclusion of the primary care physicians certainly would help with what we anticipate might be an onerous task.
The Chair: Thank you. Comments? Questions? Are we ready to vote? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 carry? We have Senator Pate with amendments on clause 2.
Senator Pate: I move:
That Bill C-83 be amended in clause 2, on page 1, by adding the following after line 13:
“(c.1) the Service considers and gives preference to alternatives to carceral isolations, notably through a broad interpretation — informed by human rights — of sections 29, 81 and 84, thereby recognizing the fundamental role of transfers of incarcerated persons to community-based institutions funded by the Service in promoting rehabilitation, reintegration and public safety;”.
This amendment sets out a principle basically prioritizing the need for CSC funding for programs that will assist in public safety by assisting in the meeting of the needs of prisoners who are within their care and custody. The minister has testified that $450 million has already been allocated for the implementation of Bill C-83, much of which will be spent on hiring correctional staff and seeking to provide mental health care within the prison setting. At the same time, however, approaches that witnesses indicate will better enhance public safety remain underfunded and under-implemented. I remind us that, even today, there was a piece in the paper from Stan Stapleton, one of the union reps, indicating the need to have resources that are available.
We also note a few examples of programs found by the Parliamentary Budget Officer to cost a fraction of what these new units would cost per person per year that are available but have not been funded. They include the pilot project by E. Fry to end segregation for women, the Breakaway disaffiliation program that Rick Sauvé spoke about yesterday, transfers to Indigenous communities pursuant to sections 81 and 84 of the Corrections and Conditional Release Act, and to community-based health services or psychiatric hospitals pursuant to section 29, which would fit squarely with the amendment we’ve just passed as well.
This amendment would also seek to promote a shift in culture by countering a long-standing trend towards prioritizing the funding of restrictive security measures to the detriment of long-term public safety. I would point to the evidence of Minister Goodale himself with respect to the purpose of the legislation and an attempt to change the culture and implement a new system, to eliminate the use of isolation, and also the concern that was raised by some who appeared.
Notably, yesterday, we heard about some of the consultation meetings that have already occurred whereby the focus has been on the hiring of correctional staff and the indication, as Ms. Acoby spoke about, of concern that programming not be offered without correctional staff present. We see very clearly the impact of that on someone like Ms. Acoby who was held for many years in isolation and did not partake in any of the initiatives because she had to endure strip searches, staff present, be shackled, even to have a visit with her child.
This would be in keeping with the testimony of the Elizabeth Fry Society, the minister, Rick Sauvé, Diana Majury from Elizabeth Fry, Professor Debra Parkes, NWAC and the Office of the Correctional Investigator. I could go through the evidence in particular if people need more information.
The Chair: It is moved by the Honourable Senator Pate that Bill C-3 be amended in clause 2, page 1, by adding the following after line 13 — shall I dispense?
Hon. Senators: Dispense.
The Chair: Thank you. We may continue, and I’m sure we have questions.
Senator Munson: Senator, I am curious about transfer of incarcerated persons to community-based institutions. What kind of institutions? Would the prisoner still be locked up? If a person has been thrown into solitary confinement or a segregated unit, they are obviously serving a sentence of some sort. While I have my human rights lens on, I get this very much, but what would that look like?
Senator Pate: We certainly heard from corrections themselves and from the minister that about 70 per cent of the individuals have mental health issues and that the risk to public safety of some is that they could be in community-based centres. It also contemplates, consistent with the amendment we just passed from Senator Kutcher, that people could be transferred into psychiatric hospitals. Currently, there are exchange of service agreements with every province and territory that the Correctional Service of Canada has. They could be contracting for beds in secure forensic units, if necessary, and the degree of security could be determined according to the risk the person poses to the community.
Senator Omidvar: Thank you, Senator Pate, for this amendment. I understand where it is coming from, from a human rights perspective. I wonder if the officials would comment on this amendment?
Luc Bisson, Acting Director General, Executive Secretariat and Chief of Staff, Correctional Service of Canada: Thank you for thequestion.
Obviously, the principle is good. When we look at the current act, under the principles questions, it already highlights the need for the service to consider alternatives and to consider various needs of offenders — that is, considerations regarding gender, ethnic background, religious, linguistic expression and other considerations.
Sections 81 and 84 are already part of the toolkit available to us, and they are used in allowing for transfers to Indigenous communities. I think what is being sought here is already achieved with the act as it is right now and with the amendments currently in Bill C-83.
In terms of the health considerations, as it relates to section 29, there are already a number of provisions that already address that in Bill C-83, and I know there are a number of other amendments before you today that will deal with that as well.
Senator Omidvar: To clarify, I understand from you that elements of this amendment are already in the act, but is it fair, then, also to say that this amendment would give greater certainty to the service to consider and give preference to alternatives? “Consider” and “give preference” are the two operative words here.
Mr. Bisson: Essentially, the amendment around the less restrictive principle already puts that onus on the service to consider least restrictive approaches, including these alternatives. As the service considers these alternatives, obviously it also needs to take into consideration its responsibilities as they relate to the health of offenders, their needs, and obviously to security and safety considerations as well.
I would argue that the act currently already provides for that and also currently puts it in context with all of those responsibilities.
Senator Poirier: My question is more for clarification, and it could be Senator Pate herself or the officials to answer.
In the wording of this, you talk about community-based institutions. I wanted to have a definition or more information on what you mean by “community-based institution.” I know Correctional Service of Canada has four or five, if I remember the number correctly, health care centres that they would normally transfer somebody to. Do community-based institutions go further, above and beyond that, like in First Nations communities and things like that?
If yes, if it goes beyond that — and we talked about that with officials over the last while also — is the security in place, not only for the security of inmates going in there but also for the people working in these institutions? Is there an appropriate amount of security needed to handle everything?
Senator Pate: Thank you very much for that question.
Yes, the intent was to push in that area. In 1992, when the government put in place this legislation, it was clearly designed to reduce the number of people in incarceration consistent with rehabilitation and public safety. The emphasis on sections 29, 81 and 84 in the legislation was to look at alternatives for people with mental health issues, people with other health issues and Indigenous peoples. The presumption would be that those resources would be put in place appropriate to the security levels available.
We are talking about in addition to the treatment centres we’ve heard about. As we heard from the witnesses yesterday, when you have those kinds of institutions — that is, when they are duly designated as a psychiatric hospital or a mental health facility and a penitentiary — security always trumps the mental health component, whereas in a forensic unit like the ones that exist in, say, Nova Scotia Hospital, where they are linked directly to the hospital but are run completely by health services, those kinds of resources can be set up specifically to meet the needs of the individuals with security in place. It’s a similar situation with Brockville. When Senator Runciman was here, he was very interested in seeing a unit there, as were many other organizations. We would be looking at separately run facilities with the contracts and exchange of service agreements that are already in place.
Part of the reason for this is, as we’ve already heard so far, the resources have already been allocated. We heard that from the Correctional Investigator, as well as from officials. The allocation of resources within the prisons is not privileging these sorts of approaches that will assist the long-term integration of those who will come back to the community, or the needs of those with mental health issues in particular, or the needs of Indigenous people who are vastly over-represented and whose numbers have multiplied — I forget the number now that the Correctional Investigator talked about — since the information came in. Although it is in the legislation now, the lack of action obviates the need to put something else in to push in that direction.
The Chair: Did you want the officials to comment on that as well?
Senator Poirier: If they have something they want to add, I’m willing to listen.
Ms. Wheatley: It is not in the bill, but to highlight the recent funding in Budget 2018 funded additional money for outside psychiatric hospitals that we are currently in negotiation for.
The Chair: Thank you.
Senator Seidman: Thank you, and thank you, Senator Pate, for your amendment. I do have to apologize. I have been in the Energy Committee doing Bill C-69 since 7:30 this morning. This was the first opportunity I’ve had to digest the amendments, so I’m struggling a bit. Please put up with me, if you could.
If I read the language here, it says, “the Service considers and gives preference to alternatives,” and then continues, “notably through a broad interpretation,” and then we talk about promoting rehab, reintegration and public safety. To me, it is a statement of principle, in a way. If I listen to what Mr. Bisson replied, basically he said it is already in the legislation.
I recognize what you are saying and certainly the testimony we heard about the concern that decisions that are made don’t necessarily correspond to these principles. However, I also worry that an amendment that restates principles that are already in the legislation could have some negative impact. I’m just not sure. Could I have some clarification, again, to help me with the kind of first principle language that is in this amendment and how it might be an impediment, or would it be an impediment in any way?
Mr. Bisson: Essentially, what I was pointing to is the word “preference” essentially states that you will consider that before anything else. What I tried to express is that the way the act is currently formulated, it puts the onus on the service to consider, yes, those alternatives, and also the health and also the safety and security of the public and of those inside institutions. It already puts all of these obligations at the same level. This would definitely change that, in my view, and would put these responsibilities at different levels. I don’t think that is necessarily the intent, but that’s what it may result in.
Just to follow up on the concern around using and relying on alternatives in terms of cases with mental health considerations or needs, there was funding announced recently for external beds in psychiatric hospitals. There was also funding in Budget 2017-18 for integrated mental health units, which is fairly new. We are still currently implementing them. I don’t think we have seen the results of those investments yet. As you have heard from the minister and from our commissioner, the announcements last fall bring in further investments around mental health resources at various levels that will also change the dynamic in terms of how we are able to continue delivering on our mandate as it relates to those three spheres I talked about at the same level, considered at the same level, so from a perspective of ensuring that we are providing the best alternatives while also considering health, security and safety.
Senator Seidman: I guess I’m not looking for a political interpretation here. I’m just looking for a legal interpretation. That’s what I look to the officials for.
Angela Arnet Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Public Safety Canada: I’ll add something, and our legal counsel may like to contribute to that. Decisions on offenders are made on a very individualized basis, and each consideration will have to always look at the least restricted means. Including a principle that says you must give preference to a certain approach could create some problems in having that individualized approach where you are looking for the least restrictive measure at the time.
Juline Fresco, Counsel, Department of Justice Canada: I just had two points just from a legal standpoint. The preference for alternatives to carceral isolation, as Angela has just referred to, certainly needs to be looked at. Also, the broad interpretation of section 29, 81 and 84, I think we have to look at those in conjunction with each other because we have heard from our officials today that the act already sets out these sections and they are to be used in a balancing exercise. I wanted to highlight those two terms.
Senator Seidman: It is the language issue here from a legal point of view, what “preference” and “broad interpretation” really means. That’s what you are saying to us. It could have cascading impact. Okay. Thank you.
Senator Pate: The intent is to have that impact: to urge that those who have mental health issues, those who are Indigenous, who are overrepresented now and not well served within the prison setting — as we heard abundant evidence about — that the push will be there in conjunction with the least restrictive measures to give some direction to the correctional authorities as to what that would look like. It doesn’t take away individualized approaches because if it looks like someone is assessed — according to the amendment Senator Kutcher put forth — and the obvious place for them to have all the issues met and serve public safety would be a psychiatric hospital, then a locked forensic unit may be where they go.
Up until this stage, the forward-looking plan has been what has existed in the legislation for 27 years. This would put an extra push to ensure those allocations. It’s not new money; it is saying that when you are allocating these resources that have been approved in the budget, there should be some preferences to these approaches to try and achieve the other objectives to reduce the numbers of folks inside and to increase the likelihood of rehabilitation and eventually safe integration into the community.
The Chair: Do we have more questions or comments on this amendment? No. Did you want to add something, Senator Pate? Are we ready to vote? Okay. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
I believe we have another amendment in clause 2.
Senator Pate: I move:
That Bill C-83 be amended in clause 2, on page 1, by adding the following after line 13:
“(c.1) the Service considers and gives preference to alternatives to carceral isolations, notably through a broad interpretation — informed by human rights — of sections 29, 81 and 84, thereby recognizing the fundamental role of transfers of incarcerated persons to community-based institutions funded by the Service in promoting rehabilitation, reintegration and public safety;”.
Senator Omidvar: That’s not what we have.
The Chair: What we are looking at is KP-2.1b.
Senator Pate: My apologies. I move:
That Bill C-83 be amended in clause 2, on page 1, by adding the following after line 13:
“(c.1) the Service allocates its financial resources in a manner that prioritizes the development of programs offered to incarcerated persons, including educational programs, vocational training and volunteer programs, and alternatives to carceral isolation, including alternatives developed in accordance with sections 29, 81 and 84;”.
It just corresponds to the previous one to help buttress the need to allocate resources in this way. It was recommended by the law clerk that this be there to reinforce that.
The Chair: It is moved by the Honourable Senator Pate that Bill C-83 be amended on clause 2, page 1, by adding the following after 13 — shall I dispense?
Hon. Senators: Dispense.
Senator Pate: Similar to the previous amendment to clause 2, this likewise seeks to promote a shift in culture of the sort that was discussed by some of the witnesses: the need sometimes to have a change in legislation to help shift culture within the Correctional Service of Canada by seeking to counter long-standing and inadequately narrow interpretations of the implementation of community-based options to restrictive confinement. It proposes an approach aimed at encouraging currently existing but underused transfers to community-based health services through section 29 and to Indigenous communities in order to serve a sentence or for community release under sections 81 and 84 respectively. Section 81 refers to things like healing lodges and individualized approaches for those in Indigenous communities while they are serving their sentence. Section 84 refers to those who are eligible for conditional release and those resources be in place, either individually or in group settings.
Senator Klyne: Thank you, Senator Pate.
I have two comments. I may ask the officials for comments on this. It is through the lens of having operated a Crown corporation previously, and it’s in the first line. I’ll come back to that. The second one is looking for stronger language, and I’ll submit that as well for the consideration of the committee.
On that first line, I think there is a lot of balance that goes on with running one of these institutions. It might be more appropriate to say that the service ensures programs are delivered effectively. That they are delivered effectively catches my second point. Back to the first one — if officials want to chime in — to say that they must allocate financial resources in a manner that prioritizes, and that’s not to diminish the importance of this because it is very important that there are programs delivered effectively in the institutions, I think it oversteps a bit, but it is up to the service to ensure that the programs are effectively delivered.
In the second part, rather than saying “offered,” I’d like to see a stronger language to say “effectively delivered.” It comes from touring some of the institutions where the programs are there but the inmates are not necessarily aware of them or they are not taking them. It needs to go beyond being offered and actively programmed into their life in there for the purposes of rehabilitation.
There are two points there.
The Chair: I understand. Do you want comments from the officials?
Senator Klyne: Comment on that first point.
Ms. Connidis: In terms of the current allocations that have been referred to, we already have the mandate and authority. They could not be affected. It would be unusual in any legislation to direct an organization through legislation about how their finances should be prioritized. The wording proposed by Senator Klyne promotes that emphasis without binding the financial responsibilities.
The Chair: Thank you.
Senator Pate, you wanted to answer.
Senator Pate: The other point I would make is when we talk about looking at developing additional alternatives, one of the issues raised yesterday was some of the other populations, from the Canadian Human Rights Commission, the Correctional Investigator, and particularly some of the trans folks or LGBTQ2+ and the elderly, ill and Black as well as others. Both of those provisions allow for an expansion of those. This is also linked to a later proposed amendment which will ensure other groups have access to alternative approaches as well.
Senator Klyne: What I submit for the committee’s consideration is instead of saying “offered,” say, “effectively delivered.” Insert in the word “why” after “to incarcerated persons for the purpose of rehabilitation and such programs shall include educational,” so on and so forth.
The Chair: If I understand correctly, you want to move a subamendment.
Senator Klyne: I don’t know that I can because I’m not on the committee. I’m submitting this for the committee’s consideration.
The Chair: You want the members to consider putting forward a subamendment, I assume.
Senator Pate: I would accept that.
The Chair: We need someone to move a subamendment. Do you want to move a subamendment?
Senator Forest-Niesing: Given that the person proposing the original amendment appears to be agreeable to that, I have no difficulty moving a subamendment to change the language as has been proposed by Senator Klyne.
The Chair: If I understand correctly, you will move a subamendment. Therefore, we will suspend that because we need correct language for that subamendment. I will ask that, in the meantime, with your agreement, we stand the debate on that subamendment and amendment, and that we carry on until we get the final scripted subamendment in both official languages. That means that we will, with your agreement, continue in clause 3. Is that agreed?
Hon. Senators: Agreed.
Senator Eaton: Perhaps somebody who knows more than I can tell me this: Can the Senate have anything to do with financial? We do the budget, but I didn’t think we could do anything to do with money. When it says, “allocates its financial resources” — I thought Senator Munson would know that.
Senator Munson: We can’t do anything about money.
Senator Eaton: Right, so is this whole thing moot?
Senator Munson: That’s why we have to make a decision on this.
The Chair: We just agreed to stand that debate, so let’s stick with standing the debate, if you will, and we understood that Senator Omidvar wants to come back to that, but we do have a desire for a subamendment. My suggestion is we stick with what we agreed. We carry on with clause 3 and, as soon as we get all the details back, we will get back to you, Senator Eaton, and your concern.
Shall clause 3 carry? We do have amendments on clause 3.
Senator Kutcher: I move:
That Bill C-83 be amended in clause 3, on page 2, by adding the following after line 2:
“(2.01) As part of the development of every offender’s correctional plan under subsection (1), the institutional head shall refer, in the prescribed manner, the offender for a mental health assessment as soon as practicable — and no later than 30 days — after the offender has been received into the penitentiary.”.
The purpose for this is we know from testimony and literature that 70 per cent of prisoners have a diagnosed mental illness. In addition, there are other factors, such as brain injuries, which are much higher in this population.
We recommend this legislation to ensure that a timely assessment of the mental health needs is done, and that would allow permission of a proper mental health diagnosis and the implementation of interventions that have positive rehabilitation impact sooner.
It is also consistent with Senator Eaton’s previous question about the change that can occur over time and the necessity to do that in a timely manner. We know that if we wait too long for these assessments to happen, it could have negative impacts.
The other thing this does is it moves mental health closer in parity with the rest of health. If someone came into a penitentiary with a cardiac condition, they wouldn’t have to wait for a long time to have an assessment done. This simply puts treating mental health on the same level as all aspects of health.
The Chair: It is moved by the Honourable Senator Kutcher that Bill C-83 be amended at clause 3, page 2 —
Hon. Senators: Dispense.
The Chair: Thank you. Do we have questions?
Senator Seidman: I really appreciate this amendment. I have one question, or maybe more than one. An assessment has to happen no later than 30 days after an offender enters the institution. Let’s say the assessment happens in 10 days and everything seems fairly normal, but let’s say that 10 days later everything isn’t normal and now this person has a crisis that causes some mental health issue.
Senator Kutcher: Thank you for that astute observation and good question. This amendment does not speak to the second part, but it certainly speaks to the first part. One thing that I would hope would happen here, with a proper mental health assessment being done by a qualified professional, is that some of the potential for the problem happening afterward wouldn’t happen because the appropriate intervention would be put into place. I think your observation here, if I can take it to that step, is that this could have a preventive impact and not just a rehabilitative impact.
Senator Seidman: I guess my question concerns some kind of ongoing follow-up. My worry is that as soon as the assessment is done and it’s ticked off, how do you guarantee? The worry is that there is not a follow-up plan and if this person seems normal and does not have a mental health issue, it could just fall by the wayside and there would be no follow-up.
Senator Kutcher: I agree with you wholeheartedly. This amendment does not address that. All it does is make sure the initial one is completed. But you are absolutely correct.
Senator Munson: This is the usual question to officials: Isn’t this already happening? Isn’t an assessment already happening in a timely manner and no later than 30 days?
Ms. Wheatley: We have implemented the STAIR pathway of care developed by the Centre for Addition and Mental Health and Dr. Sandy Simpson. STAIR is an acronym for screening, triage, assessment, intervention and reintegration planning for discharging into the community.
All offenders are screened by a nurse within 24 hours of admission. In addition, if you are not already screened in for a mental health assessment and treatment at the 24-hour mark, we screen you a second time within 14 days specifically for mental health again to determine if you need to go for further assessment and treatment.
Our challenge right now is not at intake. Every time we’ve looked at it, we’re very good at identifying who needs mental health care. Our challenge is capacity to do the follow-up psychiatric assessments, diagnosis and uninterrupted ongoing treatment for those who are screened in, which the funding associated with Bill C-83 should address.
Senator Poirier: Thank you. That actually follows into a bit of what I was going to ask you about. You said the problem was in the second part, after they had been assessed, in getting the necessary follow-up. Do we have the mental health personnel in place? Do we have the quantity of trained people that we need to do that follow-up? If we don’t have it and we are not able to do it within 30 days, how would this amendment affect the law and what would be the consequences of it?
Ms. Wheatley: The current literature doesn’t support doing a full psychiatric assessment on every single intake. The literature and what clinicians in the field have endorsed is a screening triage assessment model.
Senator Poirier: What is the difference between screening and assessment?
Ms. Wheatley: Screening looks for symptoms of mental illness to determine if it requires further assessment. We have evaluated the screening we do, so our tools meet the sensitivity required. Every time we’ve looked at it, we know we are screening the right people in. It’s faster and more timely, and it triages the people in who need further assessment.
Senator Poirier: Even if that triage has been done and the person has been assessed, there is nothing in the system that says there is any follow-up and the time period has to be within 30 days. It seems to be open-ended. Am I right?
Ms. Wheatley: The legislation requires that we deliver essential health care in accordance with professionally accepted standards. As we understand, professionally accepted standards is looking to clinical guidelines that exist in Canada for all conditions, including mental illness. It has to be individualized. The follow-up in the treatment is based on your individualized needs in accordance with what various groups in Canada have articulated in clinical guidelines.
You are correct. We have capacity gaps to ensure ongoing treatment, and the funding in Bill C-83 will ensure we have enough health professionals so we don’t have gaps in treatment that we’re currently experiencing. So I think it’s more a question of resourcing the gaps in treatment than legislation.
The Chair: I have Senator Pate, but maybe for my own information, and maybe I didn’t pick it up, who does that first initial screening? Are they health —
Ms. Wheatley: The initial screening is done by a nurse, and the nurse is screening for both physical and mental health care needs within the first 24 hours. If they’re not already screened in for further assessment and treatment for mental health at that point, there’s a secondary screening tool that’s administered by the mental health department and reviewed by a psychologist within 14 days.
The Chair: Thank you. I hear my colleagues wanting to know whether that nurse is a mental health specialist. Does she have that specific training, or he?
Ms. Wheatley: Most mental health care in Canada is delivered at the primary care level, not by specialists. We trained our mental health nurses a few years ago. The Royal Ottawa Nursing Group came and trained our intake nurses on how to do mental health assessments as part of the intake process.
The Chair: Thank you. That’s helpful.
Senator Pate: I was going to ask something about qualifications, but I think Senator Kutcher is better equipped to do that. You basically answered that it is not a full psychiatric assessment that’s done within that first 24 hours, or 14 days, or necessarily at any time unless it gets triggered.
Ms. Wheatley: As supported by the current state of research, yes.
The Chair: Thank you.
Senator Seidman: I’m just going back again to reading the amendment, and if I’m really slow this morning, you will have to forgive me, having done this on another bill before for hours.
It says here “every offender’s correctional plan,” so that means every offender who enters the penitentiary must have a mental health assessment, and we just passed the definition of a mental health assessment. We have to understand what we are asking for here and how this is going to happen, because the mental health assessment we just passed, the amendment, says it’s conducted by a medical professional with specialty training recognized in a mental health diagnosis and treatment such as psychiatrist, psychologist, or a psychiatric nurse or a primary care physician who has had psychiatric training.
Now we are getting down to the resources issue here, and now we’re being told that maybe we don’t have the resources to do this assessment on every single prisoner, every offender who enters the penitentiary, and that’s what I’m worrying about. I’m worried about the potential negative impact that this could have. Could you answer this for me?
Senator Kutcher: Yes, absolutely. I think that’s a very appropriate concern. However, we have heard testimony that there will be a fair amount of new funding.
Senator Seidman: Nine hundred new people.
Senator Kutcher: So when we’re allocating that funding — we are not asking for the new funding — our suggestion is that you allocate it to where you actually need it.
I think this is an attitudinal issue and a culture issue, not just in our prison system but in our wider society, in which parity for mental health doesn’t exist. This is a parity issue.
We know that 70 per cent of people in mental health institutions called prisons have a mental illness. Not just a mental health problem, but a mental illness.
So what we are not doing is we are not identifying the optimal pathway to rehabilitation for those people. It’s a discriminatory practice based on inequality in health and parity. There will be new resources, and I think they should probably allocate it.
Stepped care. We know all about stepped care. It is the lowest intervention possible for the cheapest price by the least-qualified provider.
Senator Seidman: There’s no question that there is a huge difference between screening and assessment. A huge difference. You’ve just convinced me, because it is absolutely correct that mental health does not have equality with physical health, and this does. Thank you.
Senator Moodie: Ms. Wheatley, thank you, again, for your continued education on this. My question is around the research you referenced.
You talked a little bit about the fact that this is research that’s specific and generalized across a number of institutions, is probably the best way to put it. Is it specific research to correctional institutions? Was this research done around individual people within corrections, or is it just a generalized approach to what is the frequency and the need around individual assessments at the screening level?
Ms. Wheatley: The STAIR model?
Senator Moodie: Yes.
Ms. Wheatley: That was developed specifically for correctional institutions by Dr. Sandy Simpson at the Centre for Addiction and Mental Health in Toronto.
Senator Moodie: Can you speak to us about the verification process? What do we know about how effective this screening tool is? How often does it miss real mental health illnesses?
Ms. Wheatley: No screening tool catches 100 per cent of mental illness, and that’s why it’s important that any system, including ours, has a no-wrong-door approach, and opportunities to self-refer and to be referred at any time by other individuals. Screening is the first opportunity to identify mental illness. At any time, should the tool not catch it or the mental illness develop later, offenders can self-refer, be referred by volunteers or be referred by staff. There is a no-wrong-door approach. We know, based on research, the gold standard screening tool is 70 per cent sensitive.
Senator Moodie: Okay. That was my question.
Ms. Wheatley: And that’s any tool in the world for any population, and our tool meets that standard, yes.
Senator Moodie: And the follow-up question is that when you add that on to the fact that you’re already recognizing openly that maybe there’s a resource issue on the availability and access for a full assessment, are you concerned about using a tool such as this? When you talk about that no-wrong-door, even if it comes through other doors, you’re openly recognizing that there is a resource issue here?
Ms. Wheatley: I would worry about doing full — and it depends what you mean by “a full assessment.” If you mean a full bio-psychosocial assessment that you would see for an admission to a forensics hospital, I would be concerned about the resource implications for that, because we are deviating then from the STAIR model then, from a screening approach.
We know 70 per cent of people screened for symptoms of mental illness are not diagnosable because that’s using the research version of the skid where impairment has not been measured. Once we introduce the concept of impairment, we have 36 per cent of our population that have both symptoms and moderate or worse impairment.
I would be worried that we are doing full hospital-level psychiatric assessments on 100 per cent of the population where, for some of them, it might not be needed because they would have been screened out. So I think, yes, we need to focus on doing comprehensive assessments in a timely manner, and the resources for C-83 will do that within the STAIR model that we’ve adopted from Dr. Simpson.
Senator Moodie: And you can assure us for that 36 per cent or whatever it is, you have the resources to conduct?
Ms. Wheatley: We will under the new funding for Bill C-83, yes. We modelled our funding needs and our resource needs based on the STAIR model where you don’t screen in 100 per cent of people from screening in triage to assessment.
Senator Klyne: I’m looking for clarification. You said the screening would be mental and health screening. I want expansion on what the definition of that “health” is. Does it lend itself to the physical side, doing blood and urine, so on and so forth?
Ms. Wheatley: That’s correct. In the first 24 hours, a nurse meets with all individuals who are incarcerated on a new intake to review all their health needs using a standardized tool, so looking for chronic illness, urgent needs like medication continuity, medication reconciliation, and then looking for symptoms of mental illness that need addressing. Those needs are triaged based on the urgency.
An easy example is situational anxiety because you are recently incarcerated. That would be a referral to mental health for some coping and supportive counselling versus someone who is identified with possibly undiagnosed schizophrenia. That would be actioned more urgently.
Senator Klyne: That focuses more on mental.
Ms. Wheatley: It includes physical health as well.
Senator Klyne: Does that take in urinalysis, blood analysis and other types —
Ms. Wheatley: Yes, as required for the individual.
Senator Klyne: As required. How would you know? Wouldn’t they all get that?
Ms. Wheatley: We offer screening to everyone for infectious disease, for TB, with their consent. We would then screen for HIV, tuberculosis and hepatitis C. Then, based on their health needs in the conversation — just as if you or I went to the doctor — if they indicate problems that might lead us to suspect they have undiagnosed diabetes, we would order the lab work for the test for that.
The Chair: Thank you. We are going to try and stick with the amendment that we have in front of us in terms of content.
Senator Seidman: I just want to make a point, and that is that while we appreciate the officials being here to help clarify legal issues, which is why they are here, we are not here to discuss policy or political issues but legal issues. I don’t mean to be critical, but I think we will never get through the clause-by-clause unless we pay attention to the amendment in front of us and ask the officials if we have questions about legal aspects of law. Sorry, I didn’t mean to intervene quite so adamantly but just to help us along.
The Chair: Thank you. Do we have more questions or comments on that amendment? We are ready to proceed? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: The motion is carried. I believe we still have an amendment from Senator Pate on clause 3.
Senator Pate: With leave of the committee, Madam Chair, we could stand this because it is in response to another amendment later on on clause 10, or we can deal with it now. It’s to make it consistent.
The Chair: Would senators prefer to deal with them together? My understanding is that this amendment refers to a group of amendments coming later down the road. Is that agreed?
Hon. Senators: Agreed.
The Chair: Thank you. With leave, is it agreed to group clauses for which we have no amendments identified in the road map?
Hon. Senators: Agreed.
The Chair: Shall clauses 4 to 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry? Senator Pate has an amendment in clause 7.
Senator Pate: I move:
That Bill C-83 be amended in clause 7, on page 3:
(a) by replacing line 23 with the following:
“(a) to a hospital, including any mental health facility, or to a provincial correctional facility, in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations;
(b) within a penitentiary from an area that has been”;
(b) by replacing lines 28 and 29 with the following:
“28; or
(c) to another penitentiary, in accordance with the”; and
(c) replacing lines 31 and 34 with the following:
“section 28.”.
These are a reordering of the provisions in this section in order to stress the importance of addressing mental health. That’s the purpose of the amendment, again consistent with previous discussions and amendments and the evidence that we’ve had about the importance of addressing mental health issues.
The Chair: It is moved by the Honourable Senator Pate that Bill C-83 be amended — shall I dispense?
Hon. Senators: Dispense.
The Chair: Are there questions or comments? No. Are we ready to proceed? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: We also have an amendment from Senator Kutcher, I believe, on clause 7.
Senator Kutcher: Thank you, Madam Chair. I move:
That Bill C-83 be amended in clause 7, on page 4, by adding the following after line 5:
“(1.1) Within 24 hours of a person being transferred into a structured intervention unit in a penitentiary under subsection (1), the person who authorized the transfer shall refer, in the prescribed manner, the inmate for a mental health assessment.”.
The rationale for this is based on testimony that we have heard of the substantive harm that solitary confinement can cause for people with a mental illness when they are placed in that situation. We have heard testimony that that harm can occur rather quickly. This is an attempt to reduce the harm that can occur.
We’ve also heard testimony from correctional service officers that they do not have the skill sets necessary to make those kinds of assessments and qualifications. This is consistent with Minister Goodale’s testimony and in writing that he wants to improve the mental health outcomes of inmates.
The Chair: It is moved by Senator Kutcher that Bill C-83 be amended in clause 7, on page 4 —
Some Hon. Senators: Dispense.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried. We are back to Senator Pate, I believe, with two more amendments in clause 7.
Senator Pate: Yes. The next one is again a consequential amendment due to a later amendment in clause 10. With the leave of the committee, we can leave that until later.
The Chair: Agreed?
Hon. Senators: Agreed.
Senator Pate: Next, I would move:
That Bill C-83 be amended in clause 7, on page 4, by adding the following after line 11:
“29.02 If a mental health assessment or an assessment by a registered health care professional concludes that an incarcerated person suffers from any disabling mental health issue, the Commissioner shall authorize that person’s transfer to a psychiatric hospital in accordance with section 29.”.
This is to complement Senator Kutcher’s earlier amendment to clause 7.
The Chair: Do we have questions or comments on this amendment? Let me put the question: It is moved by Senator — may I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Seidman: Did she read it out?
The Chair: She did.
Hon. Senators: Agreed.
The Chair: We will not carry clause 7, as we need to come back to it later on for this other amendment. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 9 carry?
Senator Pate: I move:
That Bill C-83 be amended in clause 9, on page 4,
(a) by replacing line 19 with the following:
“9(1) Subsections 30(1) and (2) of the French version”; and
(b) by adding the following after line 27:
“(2) Section 30 of the Act is amended by adding the following after subsection (2):
(2.1) Despite subsection (1), every woman confined in a penitentiary shall initially be assigned a minimum security classification that shall not be changed unless the Service concludes that such change is necessary for reasons of public safety.”.
The rationale for this comes out of the recommendations made by the Correctional Service Canada dating back to the late 1980s, early 1990s, following the Dabney commission report and The Task Force on Federally Sentenced Women, when it was recommended that women be started at minimum security. The over-classification has been confirmed by reports of the Correctional Investigator as well as the Canadian Human Rights Commission in 2003 and by the research conducted by the Auditor General and Dr. Moira Law for Correctional Service Canada. It is consistent with the recent challenge at the Supreme Court of Canada in the Ewert decision allowing individuals to start at minimum security and then, if there are security needs, to have the security increased.
The Chair: It is moved by Senator Pate —
Hon. Senators: Dispense.
The Chair: Thank you.
Senator Munson: I have a clarification. If a man killed somebody and was found guilty and thrown into prison for 25 years with no parole, would a woman who did the same thing end up in a minimum security prison?
Senator Pate: It would depend on the classification. If there were an outstanding public safety issue, they would not, according to this, recognizing that the majority of women in for murder charges — not all — are in response to violence committed against them. Often it is recognized by the folks working in the system that, in fact, they don’t pose a generalized risk to public safety but in those situations they were responding to violence perpetrated against them. We’ve heard data from witnesses about the percentage of women with histories of abuse.
Senator Munson: It would be a dual system; right? Wouldn’t that be a double standard?
Senator Pate: It is consistent with what Louise Arbour recommended after the report of the Task Force on Federally Sentenced Women, that corrections should be looking at innovative approaches with women because they tend to be a lower security risk and less risk to public safety.
Senator Seidman: I’m having the same reaction as Senator Munson is to this. It is saying every woman — that is a strong word — confined in a penitentiary shall be initially assigned to a minimum security classification that shall not be changed unless the service concludes otherwise. It could take weeks for someone to conclude that this person should not be in a minimum security classification.
I have trouble with the double standard. As Senator Munson said, if it were a man, he would go into max, or whatever, right away. Because now it is a woman who committed the same crime, she ends up in a minimum security classification. I have trouble with that. I guess it is a double standard.
Despite all the evidence we’ve heard, I have trouble with this kind of absolutist approach saying every woman confined in a penitentiary should be initially assigned to minimum security.
Senator Pate: I can appreciate that. Certainly most of us, including me when I first started working in the institution, would not have realized or known the literature. But certainly, internationally, it is recognized that the classification tools, the approaches that are applied to women, are developed to deal with men who come into the system. The dynamics, the risk factors, the implications in terms of public safety are very different when it comes to women. This would recognize that and all of that research and the historical perspective of taking this approach, including in the Corrections and Conditional Release Act, section 77, which was set up to specifically look at different approaches for women. The Arbour Commission’s recommendation was to have a separate stream, deputy commissioner for women, to have them report separately and to look at women as the flagship for innovative approaches because they tend to pose a lower risk to public safety.
It is not saying that everyone would stay there. It would indicate that if in fact there is a risk to public safety, that it should be different.
To speak to the difference in terms of men, certainly there may be situations where a man coming in — and we know that there have been juries in situations where, once they find out what the sentence is, would have imposed something different. So there may be circumstances. I would not see this precluding something different happening for men at some point, but at this stage it is the evidence about the situation for women.
I think the evidence we heard from Renee Acoby yesterday underscores that. Based on how she was assessed, she responded in a very different way. As soon as she had an outside individual, within two years she was able to be out in the community. How people are assessed in the beginning and how they are treated directly impacts, particularly in this context. It shows how they respond to it. As legislators, the responsibility to use the least restrictive measure, consistent with public safety, would support this as a legal principle.
Senator Seidman: I well subscribe to differences in subpopulations and certainly differences between women and men in their needs in a penitentiary, but why wouldn’t we say that young people should be assigned minimum security classification? Why should it just be women?
Senator Pate: I would accept that, senator.
Senator Seidman: I would prefer to know or be secure in my knowledge that every person who ends up committing a crime and is in a penitentiary has been properly screened and is assigned whatever security classification is the right one for them. I’m struggling.
Senator Omidvar: I need some help here. I don’t know who can give that to me. The bill before us is meant to address the issue of administrative segregation. The bill proposes that we move from administrative segregation to structured intervention units. This clause deals with issues outside that. I’m struggling. Is it in scope? That’s my first question.
Senator Eaton: Very apropos.
The Chair: I know Senator Pate wants to answer that, and I may ask someone for more clarity.
Senator Pate: Thank you for that question, Senator Omidvar. I can understand how that may sound out of scope, but, as we heard from the evidence of particularly Mr. Sauvé and Ms. Acoby and the Correctional Investigator and the Human Rights Commission, if you start people at the wrong place in terms of security level and you don’t do all the proper assessments, then you actually create issues. Ms. Acoby’s situation is a perfect example of that. Part of the reason she ended up in segregation for so long was some flaws with the classification process.
The Chair: Is that the answer? Do you want an official, too?
Senator Omidvar: I think that is an important point. Perhaps someone else would like to weigh in before I ask my next question.
Ms. Connidis: My advice is that it is not dealing with the issue at hand that Bill C-83 deals with.
Senator Omidvar: I was not able to sit through all the witness testimony yesterday, but I heard that Mr. Zinger and the Human Rights Commissioner were here, and in response to a question around the notion or the proposal that every female should be assigned to a minimum security classification, their response was, “That’s an interesting idea that needs to be explored.”
I want to align myself with Senator Pate’s comments that the system was built for men. It was not built for women, and I appreciate that completely. We need a culture change. We need institutional change. I wonder if this is the best way to get there, and I wonder if Senator Pate would consider a strong observation on this and we put it into our committee report.
The Chair: Thank you, Senator Omidvar. If you wish, our clerk can give all of us some comments on scope and out of scope, if you want. Would that be helpful?
Hon. Senators: Yes.
Daniel Charbonneau, Clerk of the Committee: For the rules, for an amendment to be accessible, it must, first of all, respect the principle of the bill. It has to be within the parameters. It has to be within its scope regarding what legislation it is amending. It must be relevant. It must also be correct and relevant. It must respect the constitutional provisions relating to the initiation of financial legislation. So those are the parameters that amendments should be judged. If a senator has issues with whether an amendment is acceptable, the process is to raise a point of order and then, based on arguments that are presented by committee members, it comes to the chair, who will make a ruling to determine whether or not the amendment is acceptable. And that decision is also appealable by the committee.
The Chair: Let that sink in a little bit, and then we can see if we want to vote on the amendment.
Senator Klyne: The clerk probably answered one of my questions. I would lend my voice to Senator Seidman’s comment about categorically women versus men, because I am pretty sure there are some instances where somebody goes into maximum security and, at that level, they become a hardened person and probably never should have been there in the first place. They probably could have got into a minimum and reviewed before being put into maximum. I have seen some go into a downward spiral from that.
Senator Poirier: There is something I want to put on record because the amendment says “shall initially be assigned a minimum security classification,” and that is right from the very beginning. We also need to be aware that we are perhaps putting people at risk by mixing a high potential risk offender with minimum security inmates at the beginning before having had a chance to evaluate what is there.
I also appreciate all the witnesses and the suggestions that have been shared with us over the time that we did study this bill, but at the same time, as committee members, we have to make sure we follow the scope of what this bill was about and address that, even though there were other things that came to us from witnesses. Some of the things are beyond what we can address at this point.
Senator Forest-Niesing: On the topic of the scope, having listened to the criteria raised by the clerk, I’m satisfied that it does qualify and is within the scope.
That being said, I’m wondering, Senator Pate, whether you would consider an amendment. I appreciate and agree with the comments that, at first blush, it does appear to set a double standard. However, I agree with you that the reasons behind the violent behaviour that leads to the conviction and incarceration of men versus women are very different, and therefore dealing with them in a different way is probably warranted.
Part of the concerns I’ve heard relate to the fact that although you have a safeguard that there will be assessment as to whether reasons of public safety would warrant such a change, my concern — and I believe it is the concern expressed — is that there might be a lapse. Given the wording that requires the assignment to a minimum security classification initially and immediately for a person whose behaviour has been extremely violent, pending an assessment as to whether public safety reasons would justify the change, I’m wondering if you would be amenable to a subamendment that would flip that around.
I could work on the wording, but something along the lines that where the service concludes that such a change is necessary for public safety, every woman confined in a penitentiary shall be assigned. So the assessment happens before the reclassification. And where a person who is guilty of murder and would, in a man’s world, be subject to maximum security without a doubt, that woman would initially be incarcerated or assigned to a maximum security — and we can put in a limited time frame — but upon assessment and conclusion that public safety warrants it, that classification can and should change to a minimum security classification.
The Chair: I will let you answer to that, but this seems like a very complex new subamendment. Of course, you are responsible for doing what you wish to do, but it seems like a very complex one.
Senator Pate: I certainly wouldn’t be averse to suggestions of wording changes that would emphasize that because this is not an attempt to put anybody at risk; it is an attempt to recognize public safety issues but to start people in the way that many reports and many experiences have shown that it should be.
I would just underscore that as the minister said when he presented, many of the maximum security units, including in the women’s, resemble segregation units. In the prisons for women, the segregation units are in the maximum security units. I would argue it is actually in scope because, particularly for women, the nature in which they are in incarceration, in maximum security, resembles segregation more than it resembles a separate prison, as it often does in men’s, and would warrant this.
[Translation]
Senator Mégie: I have a quick question for the witnesses. Are the criteria that you use to determine the level of violence for an inmate and the security classification the same for men and women?
[English]
Mr. Bisson: Essentially, every inmate that is sentenced to a federal penitentiary goes through an intake process where we will assess them and assess risks and needs. Those criteria are the same for women and men. What changes is the response. When you look at our current population, there are a lot fewer women in maximum security institutions than there are men, and the programming is different for women than it is for men.
Maybe one element I would bring to the table is that, as I believe it was Senator Pate mentioned, the treatment has an impact on how the offender rehabilitates and eventually reintegrates into society. The programs that we deliver to maximum versus medium versus minimum security are very different. Based on the risks that are assessed and the needs of the offender, there will be more intense programming and services provided to them. If I’m in a medium versus a maximum or a minimum institution, obviously that intensity intensifies as you go to higher levels.
The Chair: I’m not sure I hear more questions or comments. Senator Forest-Niesing, were your concerns answered?
Senator Forest-Niesing: I will say yes.
The Chair: Are we ready to vote on this amendment?
Senator Eaton: First, I think there are a few in here that really belong to a whole new prison reform bill. Second, strategically for the government, if we end up making tons and tons of amendments that they feel stray off the main focus of their bill, I think they will ignore them. I also feel that the very necessary ones, the mental health ones, assessment, will be dumped as well. I’ve said my piece now. I think we’re not being strategic with doing a whole lot of amendments which should be on prison reform, which is not this bill.
The Chair: Thank you for that comment. I appreciate what you are saying, but we do have to go through the bill and senators have the right to propose amendments.
Senator Forest-Niesing: I wanted to state that if I don’t support this amendment, it will be in a context where I would hope that we would include the intent behind this amendment in an observation.
The Chair: Absolutely. There is the option of observations, and we are also going into third reading where senators have options. Unless I hear more comments or questions, is it your pleasure, honourable senators, to adopt motion in amendment?
Some Hon. Senators: No.
The Chair: We are going to defeat it.
Some Hon. Senators: On division.
The Chair: On division.
Senator Pate: Can we add an observation?
The Chair: We can add an observation at the end, absolutely.
Shall clause 9 carry?
Shall clause 10 carry? Senator Pate, you have a substantive amendment.
Senator Pate: I move:
That Bill C-83 be amended in clause 10,
(a) on page 4, by replacing lines 31 to 33 with the following:
“31(1) A structured intervention unit is
(a) any area of a penitentiary, regardless of name, in which an incarcerated person is separated from the mainstream or general population and is required to spend less time outside their cell or engaging in activities than a person confined in the mainstream or general population; or
(b) a penitentiary or any area in a penitentiary that is designated by the Commissioner to be a structured intervention unit.
(2) Women, persons under the age of 22 and individuals suffering from disabling mental health issues or having a history of disabling mental health issues must not be confined in a structured intervention unit.
(3) Despite anything in this or any other Act, no individual is to be confined in a structured intervention unit after the second anniversary of the day on which this Act receives royal assent.”;
(b) on page 5,
(i) by adding the following after line 20:
“33.1(1) No individual is to be confined in a structured intervention unit for more than 48 hours except in accordance with this section.
(2) The Service may apply to a Superior Court for an order extending the period of confinement in a structured intervention unit as the Court considers appropriate if, in the opinion of the Court, confinement for more than 48 hours is necessary for a purpose enumerated in subsection 32(1).
(3) No order under subsection (2) is to result in
(a) any given period of confinement in a structured intervention unit exceeding 15 consecutive days;
(b) any person being confined in a structured intervention unit for more than 60 days in any period of 365 days; or
(c) any person being confined in a structured intervention unit until at least three days have elapsed since the last day of their previous period of confinement.”;
(c) on page 8,
(i) by replacing line 6 with the following:
“mend to the independent external decision-maker that the conditions of con-”
(ii) by replacing line 9 with the following:
“37.3(1) The independent external decision-maker shall determine, in ac-”
(iii) by replacing lines 15 to 21 with the following:
“health reasons, that the person not remain in the unit; and
(b) as soon as practicable in any of the prescribed “cir-”,
(iv) by replacing line 26 with the following:
“be altered, the independent external decision-maker shall determine whether”,
(v) by replacing lines 30 and 31 with the following:
“the independent external decision-maker shall visit the person.
(4) The independent external decision-maker shall maintain a record ind-”, and
(vi) by replacing 37 with the following:
“independent external decision-maker shall orally notify the person of the”;
(d) on page 9,
(i) by replacing line 3 with the following:
“mination was made, the independent external decision-maker shall provide”, and
(ii) by deleting lines 5 to 36;
(e) on page 10,
(i) by replacing lines 1 to 12 with the following:
“37.4(1) The independent external decision-maker may”,
(ii) by replacing lines 22 and 23 with the following:
“(2) In making the determination, the independent external decision-maker”, and
(iii) by replacing line 37 with the following:
“37.6(1) The Governor in Council shall appoint one or more persons”;
(f) on page 11,
(i) by replacing lines 2 and 3 with the following:
“ternal decision-maker, a person must
(a) be a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec; and
(b) have experience, expertise and interest in, and sensitivity to, both human rights and incarceral issues.
A”, and
(ii) by replacing lines 5 and 7 with the following:
“external decision-maker if, at any time, the person was a staff member, was appointed under section 6(1) or had a contractual relationship with the Service.”;
(g) on page 13, by deleting lines 25 to 42;
(h) on page 14,
(i) by replacing lines 1 to 22 with the following:
“37.8(1) If, for five consecutive days, a person confined in a”, and
(ii) by replacing lines 35 to 39 with the following:
“tion and may direct the Service to remove the person from the structured intervention unit and provide a notice of the direction to the Correctional Investigator as defined in Part III.”; and
(i) on page 15,
(i) by deleting lines 1 to 6
(ii) by replacing line 15 with the following:
“ment and sections 33, 35 to 37.3 and 37.8 apply”, and
(iii) by adding the following after line 25:
“37.92(1) Despite anything in this Act, no incarcerated person is to be separated from the mainstream or general population except in exigent circumstances and in accordance with section 33.1 or this section.
(2) Subject to subsection (3), the Service may separate an incarcerated person not referred to in subsection 31.1(2) from the mainstream or the general population for up to 48 hours in exigent circumstances.
(3) The Service may apply to a Superior Court for an order extending the period referred to in subsection (2) as the Court considers appropriate if, in the opinion of the Court, the extension is necessary for a purpose enumerated in subsection 32(1).
(4) No order under subsection (3) is to result in any given period of separation to exceed five consecutive days.”
The Chair: Thank you, Senator Pate. Yes, you will need to put that complex amendment into perspective for us, if you will.
Senator Pate: Basically, this looks at the importance of having judicial review and to bring the legislation in line with both the Charter and with recent decisions that have been made by superior courts.
This amendment is the result of the imposition of a 15-day cap on isolation in an SIU. It removes time-based reviews occurring after 15 days, for example, the 30-day, 60-day, 90-day reviews that are currently there.
Then, in the event that a CSC health care professional raises health concerns about a prisoner in an SIU, a CSC staff member reports that the prisoner has missed hours out of the cell — this amendment condenses the resulting internal review process to fit within a new time frame imposed by the 15-day cap. It provides that such reports from CSC staff will go directly to the independent external decision-maker for review. It also ensures that the qualifications of the independent external decision-maker are consistent with the significance of the decisions they are making.
It replaces the ministerial appointment process criticized by the committee witnesses with a Governor-in-Council appointment, as was recommended by Correctional Investigator and the Canadian Human Rights Commission. It requires that the decision-maker can never have had employment or a contractual relationship with the Correctional Service Canada. It requires that the decision-maker be a lawyer with knowledge of human rights and carceral issues.
We have within the testimony we’ve heard, certainly from the constitutional experts — Professor Debrah Parkes and Professor Allan Manson — the importance of independence and the importance of judicial oversight.
It also aims to phase out the use of segregation over a two-year period through the following measures: by defining what a structured intervention unit does in terms of capturing any kind of separation or isolation, whether occurring within or outside an area designated as a structured intervention unit, to ensure that all separation or isolation in prisons is subject to the same rules and scrutiny. Consistent with that, we’ve heard evidence that there are new units being described or configured for voluntary segregation. We had not heard about that before in this process.
Also, there’s an immediate prohibition on placing women, youth and those with mental health issues in structured intervention units, followed by an end to segregation for all within two years after the coming into force of the legislation. This amendment is supplemented by an amendment regarding a prohibition on segregation for Indigenous peoples that will be elsewhere in the bill, coming into effect a year after the legislation.
For those for whom segregation has not yet been prohibited, a requirement for a court to approve any placement in an SIU that would last longer than 48 hours — and that is consistent with the evidence and the court cases around the impact of segregation on individuals. For those for whom segregation has not yet been prohibited, it creates an absolute cap of 15 days on any placement in segregation or in structured intervention units, which is consistent with the Mandela Rules and the Bangkok Rules, and the international and the court cases that have gone before.
It also shortens the time frame for non-judicial reviews of structured intervention unit placements as a result of the 15-day cap, and it also imposes qualifications on who the independent external decision-makers are and still allows for a judicial review following the post-structured intervention units.
The Chair: It is moved by Senator Pate that —
Hon. Senators: Dispense.
The Chair: Thank you. And thank you, Senator Pate, for your explanation. We will go to comments and questions.
Senator Eaton: I’m sorry. I can’t support this amendment — not because it doesn’t have wonderful intentions, but I think it belongs in a whole new bill.
Senator Klyne: I’m probably going to refer my questions to the officials here. If I understand correctly, on page 1 of the draft, wanting to replace lines 31 to 33 with the following, if I understand that third point — and I’m looking for interpretation, I suppose — after two years, effectively there is no more SIU. So we have just taken away something that is probably very important in terms of there being good reasons to want to separate inmates, such as for the safety of the inmate, workers or the institution. This would effectively remove that, so I need an interpretation on that.
I also have a little concern about how this is going to create a trodden path to the superior court in that I believe the independent external decision-maker is, in effect, a commissioner. Under the Federal Courts Act, if the IEDM makes a decision, it’s binding, but you could apply to the court if you feel that the decision made by the IEDM was questionable and ask the court to quash it, set it aside, deliberate upon it and make a decision, versus at 48 hours with every inmate, the institution would have to apply to the superior court, and in many cases that’s going to be — I would not say unreasonable but unnecessary. In some cases, there could be cause for it.
There is an opportunity to go for judicial overview, and I would say that the first line here is the independent external decision-maker. Then if there were thought to be something unreasonable there in that binding decision, the legal advocate or prison inmate could, through their representation, apply to the superior court to get that reviewed. But to review every situation at 48 hours, for the correctional institution to have to apply to the superior court, just seems like a very administrative burden. I don’t know if superior courts or provincial courts can handle that traffic.
With reference to the whole thing, there are a lot of good pieces in there that shouldn’t get lost, but I need a whiteboard to figure out how that all ties in. On the overall impact, I would ask the officials if they want to opine upon this. I’m concerned particularly about proposed section 33.1, the interpretation of that, and the reference of whether, at 48 hours, it should be the institution to apply versus the other way around.
The Chair: Can the officials help us with this?
Ms. Fresco: I will just speak to the legal implication of this at first glance. The first point is that you are correct. My legal interpretation of 31(3) would be that, after two years, there would not be SIUs, but I would also point to 31(a) and the wording “regardless of name.” On my initial impression, that appears to broaden this beyond how Bill C-83 designates a structured intervention unit. The commissioner is designating any area to be a structured intervention unit, whereas, now, this is broader, regardless of name in which an incarcerated person is separated from the mainstream or general population and is required to spend less time outside their cell or engaging in activities than a person confined in the mainstream or general population. My initial reading of this is that it’s not just the SIU as we have characterized them in an SIU that would cease to be authorized by law after two years, but anything that falls under 31(1)(a), which is broader than we had drafted it. I would point that out, to your first point. I don’t know if there is anything more specific.
Senator Klyne: There is a second part in terms of a process. If I understand correctly, if the independent external decision-maker makes a decision, it’s binding, but an application could be made to the superior court because that person is recognized —
Ms. Fresco: To the Federal Court.
Senator Klyne: Sorry, yes, to the Federal Court to review that decision, and the decision could be set aside or quashed or other options available to the court. But if we follow this wording, no one could be in there for 48 hours unless the institution chose to make an application to them.
Ms. Fresco: I would speak to the existing remedies. You are correct that, under the Federal Court rules, any decision of the independent external decision-maker could be judicially reviewed to the Federal Court. There could also be an application under habeas corpus. Just speaking to what exists as we have envisioned under the act — yes, this is entirely different.
Senator Seidman: I have to say, Senator Pate, I have enormous respect and admiration for your professional experience in this field. I have enormous respect for that. I’m certain that what you are proposing, in many respects, is quite wise. However, I have to say that I really have not heard enough testimony in the last two weeks to allow me to come to a decision on what is essentially a rewrite of a huge proportion of this legislation. So, unless we suspend looking at the legislation and do a study on penitentiaries and SIUs that would allow much more opportunity for witness testimony, I just can’t support this right now. I really feel I need to say that.
Senator Omidvar: I support the measures in this amendment that would bring us in line with recent decisions of the courts and the Charter, but I have some difficulty in other clauses in this amendment that we have not heard enough witness testimony on, and I worry about the proposed change in 31(2) about who would be exempt from structured intervention units, and there is a clause that comes later about Indigenous people. In essence, I read that there would be no women in these structured intervention units, nobody under the age of 22, nobody with a disabling mental health issue and, as I understand the later amendment, nobody with an Indigenous background. So who are we left with? White men. As much as people here know my history and my work for exploited groups, I feel very uncomfortable with an exclusion of this kind without a thorough review — a study, witnesses. Senator Pate, you know how much I respect you and I look up to you, but I’m worried about these aspects of the amendments.
Senator Forest-Niesing: My views have already been expressed. Thank you.
Senator Pate: Thank you very much for your considered comments. I agree that we didn’t have much time to study this and look at it. The entire purpose of this bill is, as expressed by the minister, to get rid of segregation, to eliminate the use of segregation, which is consistent with international trends to eliminate the use of solitary confinement and segregation. This bill will not do that. It actually perpetuates it and removes some of the existing procedural safeguards.
What I’m trying to do with this amendment is to capture what we did get from witnesses, which was that we have three women in segregation, by correction’s own recognition, the minister. We have three women and 300 men. Louise Arbour recommended judicial oversight 23 years ago that has never been implemented.
Right now, as the bill is written, there would be no possibility of getting a review until after 90 days. We don’t need any more courts to opine or to strike down legislation because that is far too long. That is well beyond the scope of what is deemed appropriate by the courts.
We have opinions. We heard from Professor Manson and Professor Parkes that this legislation is not Charter compliant. It is not constitutional. This was an attempt to bring it into line and to recognize that we will likely see, within a very short time frame — well, I should not say short — we will likely see in the foreseeable decade or more the elimination completely of these kinds of units.
We also have the Parliamentary Budget Officer’s recommendation that resources be allocated to alternatives. We made some amendments to attempt to move in that direction. We’ve also heard from the folks who were bringing the court cases, from the B.C. Civil Liberties and Canadian Civil Liberties, that this legislation will not comply and that there has already been a likelihood that the Supreme Court of Canada will be looking at it. It behooves us, I believe, as senators, to not pass something like that.
I would be open to other suggestions that people might have. I think the counterargument of delays in the system is not borne out when we actually look at the numbers, particularly in light of the recent Supreme Court of Canada decision around bail issues where there is a requirement for what will be as many as 10,000 or more bail applications. Clearly, that was not recognized as a reason not to impose the Charter.
It strikes me that we have an opportunity here to bring the bill into Charter compliance. If we don’t pass this provision and we proceed with the legislation, then we will actually be proceeding with unconstitutional legislation. I don’t think I need to go through all the evidence provided by the very few witnesses who were here around the need for alternatives, the lack of resourcing of alternatives, the lack of — despite what we’ve heard and what the intent is by many — the lack of services and lack of opportunities when somebody is in these units. I will leave it there.
Senator Klyne: At the expense of being repetitive, I think there are some pieces in here that merit discussion. I look to the officials to help me work through this. You can hold the comments. I will make a few here.
The IEDM, as I understand it, has the option and the right to enter into any prison whenever they choose or review any matters that they wish to choose. There is no 90-day concern in that regard. Or that’s my understanding.
Second, along the continuum of day one, day zero, through to ninety, there could be, through advocacy, request of the independant external decision-makers (IEDM) to review something and come up with, perhaps, a binding decision. So I don’t understand. Also, from day one through ninety and beyond, there is also the OCI that could be referred to. The OCI could review something, and they may need more resources to turn around quickly in response to that, but also the IEDM can go in at any time. They don’t have to ask for permission, much like a senator could go visit the facility.
I’m trying to understand, are there really delays, or could the OCI or the IEDM be engaged anywhere along the continuum?
Ms. Connidis: The IEDM would have opportunities to review a case any time an inmate’s placement in an SIU started to even look like solitary confinement. If that person was not availing themselves of the full four hours, if they were out for three hours and forty-five minutes over a period of five days, an IEDM would look at that case. It would be referred to them. On day one, if a health care official drew it to the attention of the warden, and a committee felt they could not comply with the health professional’s recommendation, an IEDM would look at it at that point as well.
It was never meant that it would wait 90 days before an IEDM ever looked at it. If it got to the point that an IEDM wasn’t reviewing it until 90 days, it would mean that the inmate was getting out of the unit for at least four hours a day and was having at least two hours of meaningful human contact. That’s the only time you would wait until 90 days before the IEDM saw it.
Other circumstances will be prescribed when an IEDM will review a situation. They will be able to contact the inmate at any point while they are doing their investigations.
Senator Klyne: I was also wondering about the opportunity for access to advocacy to ask the IEDM.
Ms. Connidis: There was a lot of consideration given to whether the inmate themselves could request the IEDM. That would put a huge burden on IEDMs, but there is always access to the OCI through requests to the institutional head as well.
Ms. Wheatley: Maybe just to add, the law speaks to patient advocacy, the proposed bill, as a fundamental role of all health professionals, and then patient advocacy in designated sites is a discrete service as well. In patient advocacy, part of that role is working with the patients so that their human rights are respected and their rights to services are respected.
Senator Seidman: I will be really brief. Senator Pate, I would urge you to take the Charter issues to the chamber in third reading. You still have the opportunity to do that in third reading.
Senator Forest-Niesing: In light of what I’ve just heard, I will reserve my comments. We can just advance the discussion and I will save it for later.
The Chair: Sounds good. Are we ready to vote on that amendment?
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Defeated, on division.
An Hon. Senator: I would like to abstain.
Senator Forest-Niesing: I, too, would like to abstain.
Senator Seidman: Do we now move to other amendments?
The Chair: If we have some abstentions, my belief is that we need to go to a nominal vote. We will do a roll call.
Before we proceed to the roll call vote, I would like to remind senators that the rules indicate that ex officio members enjoy the same status as other members of the committee, including the right to vote. There is currently a convention that ex officio members do not vote in committee by mutual agreement, so I ask that any ex officio committee member who wishes not to vote, to please indicate it now. Senator Bellemare. The ex officio members I just named will not be called and will not be recorded in the minutes as having voted or abstained.
I will now ask the clerk to proceed with the vote. The clerk of the committee will call the members’ names, beginning with the chair and then going in alphabetical order. Senators should verbally indicate whether they are for, against or abstain. The clerk will then announce the result of the vote, and it is my duty as chair to declare whether the motion is carried or defeated.
Senator McInnis: I am, for the moment, Senator Oh.
The Chair: Yes, we are aware of that. Thank you.
[Translation]
Mr. Charbonneau: The Honourable Senator Petitclerc?
Senator Petitclerc: Abstain.
Mr. Charbonneau: The Honourable Senator Eaton?
Senator Eaton: Nay.
Mr. Charbonneau: The Honourable Senator Forest-Niesing?
Senator Forest-Niesing: Abstain.
Mr. Charbonneau: The Honourable Senator Kutcher?
Senator Kutcher: Abstain
Mr. Charbonneau: The Honourable Senator McInnis?
Senator McInnis: Nay.
Mr. Charbonneau: The Honourable Senator Mégie?
Senator Mégie: Nay.
Mr. Charbonneau: The Honourable Senator Munson?
Senator Munson: Abstain.
Mr. Charbonneau: The Honourable Senator Omidvar?
Senator Omidvar: Abstain.
Mr. Charbonneau: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Charbonneau: The Honourable Senator Poirier?
Senator Poirier: Nay.
Mr. Charbonneau: The Honourable Senator Ravalia?
Senator Ravalia: Abstain.
Mr. Charbonneau: The Honourable Senator Seidman?
Senator Seidman: Nay.
Mr. Charbonneau: Yeas: 1; nays: 5; abstentions: 6.
The Chair: The motion is defeated.
We have another amendment to clause 10.
Senator Bellemare: Thank you for giving me the floor. It’s an amendment that I’ll —
[English]
The Chair: My apologies, Senator Bellemare. Senator Poirier.
Senator Poirier: Don’t we have the other two that were attached to this that we put aside because we were going to deal with clause 10? They belonged to Senator Pate and were KP-7.4a and KP-3.2 —
The Chair: You are correct. We can do it now or later. Would you prefer to do it now?
Some Hon. Senators: Yes.
Senator Poirier: That would be finished now, and then we can go back and vote on clause 7 and on clause 3.
The Chair: That makes sense. Thank you, Senator Poirier.
Senator Pate: I withdraw them. There is no point in moving them if they are consequential to the previous one.
The Chair: Senator Pate, with leave, you wish to withdraw those amendments?
Senator Pate: Yes.
The Chair: Is that agreed?
Hon. Senators: Agreed.
Senator Poirier: We need to then vote on the full clause.
The Chair: Yes. Let’s make sure we wrap up all the clauses that we need to vote on.
Honourable senators, shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Thank you, senators. We are back to clause 10 with an amendment from Senator Bellemare.
[Translation]
Senator Bellemare: It’s a technical amendment from the government that addresses the time limits for a person placed in segregation. In the amending clause 10 of the bill, section 37.91 sets out the rules for any transition period. I’ll read the amendment.
[English]
I move:
That Bill C-83, in Clause 10, be amended by replacing line 15 on page 15 with the following:
“ment and section 29.01, 33, 35 to 37.4 and 37.81 to 37.83 apply”
So what it does, in fact, it includes in line 15, the 29.01 —
The Chair: Thank you, Senator Bellemare. I know some people are looking for the amendment. It is the one that is number 12, DB-10.15.
Senator Omidvar: I don’t have it.
The Chair: Let’s make sure you have a copy of it. Who else needs a copy of that amendment? Senator Moodie.
Everybody has their copy of the amendment. It is moved by Senator Bellemare that Bill C-83, in clause 10, be amended — shall I dispense?
Hon. Senators: Dispense.
The Chair: Thank you.
[Translation]
Senator Bellemare, do you want to explain the nature of your amendment?
Senator Bellemare: Section 37.91 sets out the rules for any transition period between when Correctional Service of Canada decides to transfer a person to a structured intervention unit and when the person is placed in that unit. As it stands, the section states that the five-day countdown to the review of the placement in the structured intervention unit by the institutional head begins once the inmate is placed in that unit.
This amendment will ensure that the clock starts as soon as Correctional Service of Canada has made the decision and not when the person arrives at the structured intervention unit. With this amendment, the time that the inmate remains confined to their cell before being transferred to a structured intervention unit will be counted as part of the five days of review by the institutional head.
The Chair: Thank you, Senator Bellemare.
[English]
Do we have questions or comments on that? Do we need precisions from the officials? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 10, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Shall clause 11 carry?
Senator Seidman: I’m not sure how long we are planning on sitting, but for the sake of tying up a loose end, I am wondering if we have a rewrite of 2.1(b), where we had a subamendment to the amendment. I wonder if we could try to deal with it before we all leave today and start a new amendment. Would that be possible?
The Chair: Senator Seidman, we’ve been working together too long. That was the plan. We are waiting for copies of the amendment. It’s on its way, as we understand it. We will do that. It is an excellent idea.
Obviously, the bill has still a long way to go, and we will resume the meeting at 1:15 or before.
Senator Seidman: We will adjourn the meeting?
The Chair: Sorry, yes, adjourn.
Senator Poirier: I have a question, Chair. Did I understand that we just carried clause 10?
Mr. Charbonneau: Yes.
Senator Poirier: On the order paper, there seems to be another one, number 13, where it says it is a new clause 10.1.
Mr. Charbonneau: It is a new clause.
Senator Poirier: So it is not considered clause 10? Is that what you are saying?
Mr. Charbonneau: Yes.
Senator Poirier: Thank you for the clarification.
Senator Seidman: We have our amendment now.
The Chair: Clause 10 is carried, and sub-amendments are on their way.
Senator Pate, you have an amendment.
Senator Pate: I move:
That Bill C-83 be amended, on page 15 by adding the following after line 25:
“10.1 Subsection 31(2) of the Act is replaced by the following:
(2) Women, persons under the age of 22, individuals suffering from disabling mental health issues or having a history of disabling mental health issues or Indigenous persons must not be confined in a structured intervention unit.”.
I’ve provided the rationale before in terms of, given the numbers, an immediate prohibition would be possible, particularly given the resources we’ve seen that the Parliamentary Budget Officer has shown, the millions of dollars that would otherwise be allocated here and that could be applied to some of the other measures we’ve already discussed, mental health and outside interventions.
The Chair: It is moved by Senator Pate — shall I dispense?
Hon. Senators: Dispense.
Senator Seidman: I guess I am suffering the same problem as I did from other amendments that you put forward. This one, in fact, refers to persons under age of 22, so now we added youth and women, but it does not refer to men. I would say if there are men suffering from disabling mental health issues, why should they not —
Senator Pate: It does include men.
Senator Seidman: No. It says “women.”
Senator Pate: It says “women, youth and those with disabling mental health issues.”
Senator Seidman: “Women, persons under the age of 22.” I don’t understand the language at all. “Women, persons under the age of 22, individuals suffering from disabling mental health issues.” I’m sorry.
Senator Forest-Niesing: Just replace the comma after “22” with the word “and.”
Senator Seidman: Why would you say individuals? Why wouldn’t we say “women and men”? It says “women, persons under the age of 22, individuals —” to me, if it means everybody, what you’re really saying is that anyone suffering disabling mental health issues or having a history must not be confined in a structured unit. Isn’t that what you’re saying?
Senator Pate: It is, but I was also saying women, because there are three women this applies to, three across the board. So the idea of having structured intervention units for three women throughout the country, instead having the resources go into some of the other options we’ve talked about. It was women as a group, those with mental health issues — of which most of the women would be — and then youth.
The Chair: To be clear, your amendment is referring to three different groups.
Senator Pate: Right.
The Chair: Thank you.
Senator Poirier: For me, it is just a clarification on the language, the way it is written. We’re talking about women. We are talking about persons under the age of 22, which could be anybody. We’re talking about individuals suffering from disabling mental health issues. Is that person suffering from disabling mental health issues a woman, a person under 22, a person over 22? It says, “or having a history of a disabling mental health issues”. Then it says Indigenous persons. Wouldn’t Indigenous persons be automatically included in the women and under 22, or are Indigenous persons considered to be men, or can it be an Indigenous person who doesn’t have a health issue or a history of disabling mental issues? I find it is a bit confusing the way it’s written.
Senator Seidman: In other words, almost no one must be confined.
Senator Poirier: It’s basically that no one is —
An Hon. Senator: That’s the objective.
Senator Seidman: Except for men.
Senator Pate: The objective is to phase out the use of isolation.
The Chair: Senator Pate, I apologize for breaking up this discussion. I was just made aware that because the amendment on clause 10 was defeated, the legal advisers are telling us that this amendment can no longer exist.
Senator Pate: Okay.
The Chair: Am I correct?
Mr. Charbonneau: You are correct.
Senator Seidman: Thank you very much.
The Chair: Senator Klyne?
Senator Klyne: There was just circulated what is to be reflective of my amendment. In my opinion, it is not. I don’t want to hold this up. I just wonder if someone could stay that for a moment until I can go through this again.
The Chair: I apologize. I didn’t hear you properly.
Senator Klyne: This is not what I had indicated.
The Chair: You had indicated —
Senator Klyne: I made an amendment, and we tried to get through the wording.
The Chair: I do want to mention that as a non-member —
Senator Klyne: I submitted it for consideration.
The Chair: But this is not what you had intended with the subamendment?
Senator Klyne: Right. It’s easily fixed, but I’m trying to work with everybody else’s opinion on this.
Senator Omidvar: May I suggest we move on to the others until this is satisfactory to Senator Forest-Niesing, who is the original mover of the subamendment?
Senator Seidman: I have another option here. Is it possible that Senator Forest-Niesing consider whatever amendment she would like to make and take it to third reading, and that we vote on the amendment that Senator Pate put in front of us instead of waiting for subamendment to it? And that would be the decision of Senator Pate.
The Chair: We need to hear from Senator Forest-Niesing on that in a moment.
Senator Forest-Niesing, I apologize, but in the interest of time, Senator Seidman has a comment.
Senator Seidman: Sorry. Senator, what I was suggesting is, given that this attempt at a subamendment to an amendment doesn’t satisfy Senator Klyne in terms of what he was suggesting, and you were, I suppose, agreeing with, could we go on and go back to the original amendment put forward by Senator Pate and vote on that? And if that is not satisfactory to you — the result of that vote — then you could propose a new amendment in third reading?
Senator Forest-Niesing: We could, but in the very brief discussion I had with Senator Klyne, I suspect that we can probably fix this really quickly, and I would not want to lose the opportunity of moving in the direction that the original amendment being proposed by Senator Pate was taking us. I think there is value in doing that, and I believe it is not a difficult fix. I might be able to do it on the fly. I will try.
The Chair: Is it your decision that you would like to keep your subamendment —
Senator Forest-Niesing: I apologize for the delay that that might cause.
The Chair: We will need to ask that you provide the text, the new amendment, in both official languages. My understanding is that we will continue while you are doing this. Is that agreeable?
Senator Forest-Niesing: Yes.
The Chair: Okay. An easy one. Shall clauses 11 to 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry? And we have an amendment. Senator Pate.
Senator Pate: I move:
That Bill C-83 be amended in clause 14, on page 16, by replacing lines 7 to 15 with the following:
“48 A staff member may not conduct a strip search of any person confined in a penitentiary without individualized reasonable grounds.”.
This is consistent with the evidence that we’ve heard from witnesses. Basically, the amendment is trying to bring corrections’ strip search practices into compliance with the law and ensure that they are done when there’s individualized suspicion for a prisoner, not just as a routine matter. So that’s the amendment.
It was certainly recommended by Diana Majury when she appeared, and it conforms with the Mandela Rules and Bangkok Rules to strip search for cause, and we heard evidence from the witnesses about the impact of strip search, and on visits, and programs, and that sort of thing.
The Chair: It is moved by Senator Pate that Bill C-83 be amended —
Hon. Senators: Dispense.
The Chair: Thank you. Do we have comments or questions? Are we ready for a vote on that?
Senator Poirier: Can the officials tell me about the difference between individualized reasonable grounds instead of individualized reasonable suspicion? What’s the difference between the two?
Ms. Fresco: Sorry, can I just have you repeat it?
Senator Poirier: Yes. Can you tell me what the difference is between individualized reasonable grounds instead of individualized suspicion?
Ms. Fresco: I just need one second, please. Thank you. My apologies. My understanding of this is the individualized reasonable grounds would require a higher standard than what exists in Bill C-83.
Senator Poirier: Can you give me an example of that standard?
Ms. Fresco: I would point to my colleagues at CSC to speak to that, but just that individual suspicion is a lower requirement to meet.
Lee Redpath, Executive Director, Structured Intervention Units, Correctional Service of Canada: We’d have to get back to you on that. I’m not sure I have the answer for that.
The Chair: Senator Poirier, I believe you want some examples. That’s what we would like, I think, to help us in that process.
Ms. Redpath: So we have a routine strip search. There would be certain places in the institution, if you’re entering, coming into the institution for the first time, we would strip search every inmate coming in. Then there could be times where we have individual information at any time in the institution that you are carrying something, so we could do a strip search then. So it’s a routine strip search for certain times, certain places in the institution, as opposed to having individual information at any time in the institution.
Senator Poirier: So if I’m understanding this amendment right, you would not be able to do that anymore?
Ms. Redpath: That’s correct.
Senator Poirier: So the only way you could do the strip search is if it was under reasonable grounds?
Ms. Redpath: That’s right.
Senator Poirier: But your definition of “reasonable grounds,” is it everybody?
Ms. Redpath: No.
Senator Poirier: So what makes it reasonable grounds for you?
Ms. Redpath: We would have to have information specific to that individual.
The Chair: Senator Pate wants to help.
Senator Pate: Sorry. To help with this, part of the reason this is here is in addition to what we heard from the witnesses, this legislation introduces body scanners. So the body scanners would produce the reasonable grounds. So if someone comes in, so we are not strip searching everybody, they come in, they’re screened, and then that might create a situation of reasonable grounds to do it.
Senator Poirier: Thank you. That is helpful.
The Chair: Very helpful. Are we ready for a vote, or do we have more questions and comments on that?
Hon. Senators: Vote.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 14, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 15 to 22 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 23 carry?
Senator Pate: I move:
That Bill C-83 be amended in clause 23, on page 18, by replacing lines 31 to 33 with the following:
“to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous person, but only to decrease the level of risk posed by such a person.”.
This is actually an amendment to correct what I think was a mistake in the other place. All of the discussion, particularly by member of Parliament —
The Chair: Senator Pate, you are reading amendment 18B. Is that what you wish to do first? Because I have KP-23-18A.
Senator Pate: Sorry. My apologies. Let me go back.
That Bill C-83 be amended in clause 23, on page 18, by replacing line 29 with the following:
“er, including his or her family and adoption history.”.
This was actually in response to the recommendations that came from particularly Professor Manson around the need to ensure that what are often referred to as Gladue factors are actually incorporated into every aspect. There have been court cases that have held that, in fact, you have to take into account all those factors in every aspect of the sentencing, including examination for conditional release and programming. So this would be to bring it into compliance. If you need more explanation, I am happy to give it.
The Chair: Senator Bellemare, you have a question?
[Translation]
Senator Bellemare: I just want to clarify one thing with regard to the amendment. The French translation is incorrect and could lead to confusion. The words “le fait qu’il a été adopté ou non” should be replaced by “son historique d’adoption.” It’s a French translation issue.
The Chair: Thank you for that clarification, Senator Bellemare. Are there any other questions?
[English]
Senator Munson: For clarification on that, in French “la culture autochtone. ” Is that what she was talking about? That doesn’t read the same way in the other one. It just says, “his or her family and adoption history.” Am I reading the same thing?
The Chair: It is the end of the amendment that does not translate well. Is that what you are saying?
[Translation]
Senator Bellemare: That’s right. This is amendment KP-23.18a. At the end of the proposed amendment, the French version reads as follows:
“c) l’identité et la culture autochtones du délinquant, son passé familial et le fait qu’il a été adopté ou non.”
The words “le fait qu’il a été adopté ou non” should be replaced by “son historique d’adoption.”
[English]
The Chair: I was told that we have to look into it in the bill. What I am being told by our expert is that the drafting language has to reflect what is in the act that we are amending. So we may stand the amendment, if you want to.
[Translation]
Senator Bellemare: I’m the spokesperson for this French translation.
The Chair: Absolutely. I completely understand.
[English]
Do we wish to stand it until we clarify that language concern?
[Translation]
Senator Forest-Niesing: I agree, because I think that it’s really a translation issue. If a correction is necessary, I’d like us to be able to make it.
Senator Mégie: Me too.
The Chair: Absolutely. I understand.
[English]
Is it agreed to stand this clause?
Hon. Senators: Agreed.
The Chair: Senator Pate, you may move 23-18B, if you wish?
Senator Pate: Shall I reread it?
The Chair: Please.
Senator Pate: I move:
That Bill C-83 be amended in clause 23, on page 18, by replacing lines 31 to 33 with the following:
“to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous person, but only to decrease the level of risk posed by such a person.”.
The rationale as I mentioned is that, in the other place, there was discussion about the fact that there can be adverse impact, sometimes, of taking into account Indigenous history, and that was not the intent, so it was taken out instead of indicating that it could not be used for an adverse purpose.
The Chair: It is moved by Senator Pate that Bill C-83 be amended in clause 23 — shall I dispense?
Hon. Senators: Dispense.
The Chair: Do you need more information, or do you have questions or comments on this amendment? Are we ready to vote on this amendment?
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
[Translation]
Fellow senators, the clock is ticking. I propose that we adjourn the meeting and continue the clause-by-clause consideration of Bill C-83 at the next committee meeting.
[English]
I do want to thank all the members. We will continue clause-by-clause study of Bill C-83 when we get back. We will go back to the clauses that are standing. Again, my sincere thanks to everybody for your professionalism, collaboration and respect. It is a hard process on a complex bill with complex amendments, and I thank you for this collaboration.
(The committee adjourned.)