Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 61 - Evidence - May 27, 2019
OTTAWA, Monday, May 27, 2019
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 4:11 p.m. to proceed with the clause-by-clause consideration of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.
Senator Chantal Petitclerc (Chair) in the chair.
[Translation]
The Chair: Happy Monday, everyone, and welcome to the Standing Senate Committee on Social Affairs, Science and Technology. I’m Senator Chantal Petitclerc from Quebec. It’s a pleasure and a privilege to be with you today for this meeting, to continue the clause-by-clause consideration of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.
Angela Arnet Connidis, Director General of the Crime Prevention, Corrections and Criminal Justice Directorate at Public Safety Canada, is here to answer your questions. Welcome.
We’re also joined by Jennifer Wheatley, Assistant Commissioner, Health Services; Luc Bisson, Acting Director General, Executive Secretariat and Chief of Staff; Marty Maltby, Acting Director General, Aboriginal Initiatives Directorate; and Lee Redpath, Executive Director, Structured Intervention Units, at Correctional Service Canada. Welcome.
Lastly, we’re joined by Juline Fresco, Counsel at the Department of Justice Canada. Welcome.
[English]
As you know, there were many amendments to this bill last week, or 10 days ago. There are amendments today. Some amendments that are just being printed for you, and that you will be made aware of very shortly.
Up front, I will ask for your cooperation, and probably your indulgence at times, as we go through that process and try to make it coherent and as efficient as possible.
As you recall, we were dealing with clause 23 when we had to go last time. We are coming back to clause 23, the amendment at the time.
[Translation]
Senator Bellemare: I want to move an amendment. I would like us to go back to clause 10. This is an amendment of the government, of the minister. It involves reviewing clause 10, on page 7, lines 25 and 28.
[English]
The Chair: Senator Bellemare, I will stop you right there and ask for your indulgence as we will conclude and we will finish dealing with clause 23. An amendment was stood at the time. I believe you have also an amendment on clause 23 on your papers, DB-23.18. I would suggest that we begin with concluding clause 23 if you are okay with that.
If you recall, just to put it in perspective, this was the amendment where there were some questions on the French language and the translation. There was some wording that was a bit problematic, and Senator Bellemare and Senator Forest-Niesing raised it at the time. There was a discussion on that, so I believe the intention would be for Senator Bellemare to propose an amendment that would replace the amendment from Senator Pate.
Is that my understanding?
Senator Bellemare: In fact, it’s a change of expression. It’s to use:
[Translation]
“son passé en matière d’adoption” rather than “le fait qu’il ait été adopté ou non” in Senator Pate’s amendment. However, for the sake of clarity, the wording in English would also be changed.
[English]
It would be “including his or her family” — no that’s not it. Adoption or adoption history.
The Chair: Does everybody have a copy of this amendment?
[Translation]
Senator Bellemare: The amendment is as follows: 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.”
[English]
The Chair: To be clear, we are doing the amendment from Senator Bellemare, which is numbered DB-23.18.
[Translation]
Senator Bellemare: For number 23.18a, there’s no amendment.
[English]
The Chair: Senator Bellemare, am I understanding that you’re not moving an amendment?
[Translation]
Senator Bellemare: However, there’s an amendment for number 23.18b.
[English]
That Bill C-83, in clause 23, be amended by replacing line 32 on page 18 with the following:
“mate unless those factors have mitigating effect on the level of risk.”
[Translation]
And in French:
Que le projet de loi C-83 soit modifié, à l’article 23, à la page 18, par substitution, à la ligne 32, de ce qui suit :
« tone, sauf s’ils ont pour effet d’atténuer le niveau de risque. »
The Chair: Senator Bellemare, I think that this amendment was already passed before we left, if I’m not mistaken. I’ll ask Mr. Charbonneau to help us out a little.
Daniel Charbonneau, Clerk of the Committee: Give us five minutes. We’ll check.
[English]
Angela Arnet Connidis, Director General, Crime Prevention, Corrections and Criminal Justice Directorate, Public Safety Canada: We need to make sure we have the correct amendment for that.
The Chair: I did say that I would ask for your indulgence and it’s starting right now. So I am asking for your indulgence. We have these amendments. We are trying to print and organize them. We will suspend for two minutes because we need to be organized and efficient. Apologies.
Senator Seidman: Point of order, please. I have sat in this Senate for 10 years. I have sat on committees for 10 years. I have never seen a clause by clause descend into this kind of chaos because the government enters and wants to make amendments while we’re doing clause by clause. It’s absolutely unheard of. If the government has amendments to make, you can’t walk in when we have two hours of scheduled clause by clause to do and suddenly drop all these amendments on us. You just can’t do that. You need to take them to third reading when we’re back in the chamber. Please. I’m sorry, but I can’t believe that you would create this kind of chaos in a meeting for the chair and for the clerk. It’s just very unfortunate. Sorry.
The Chair: Do we have any other comments on this point of order?
Senator Omidvar: If I may, I have to agree with Senator Seidman. We take our jobs seriously, and, chair, you help us with that a great deal. I’m not quite sure how we can do sober second thought in this rushed way unless they are technical amendments, in which case, Senator Bellemare, I will happily receive them. But if they are substantive amendments, then we simply are not able to do the job that the people expect us to do.
Senator Bellemare: I kind of agree with you.
Senator Omidvar: Thank you.
Senator Seidman: Do you then withdraw your amendments?
Senator Bellemare: I will withdraw them.
The Chair: You will.
Senator Seidman: Thank you. I really appreciate that.
The Chair: Thank you Senator Bellemare.
Senator Seidman, this is really appreciated.
We will continue with clause 23. It was the amendment from Senator Pate. The amendment is KP-23.18a. It was stood at the time, so I would suggest that we deal with this amendment before we continue.
Senator Forest-Niesing, I think you had a subamendment on this amendment.
Senator Forest-Niesing: Actually, this wasn’t the one that I had a subamendment on. However, I understood that the only disagreement — and I have forgotten now who raised it, but my recollection is that there was a concern about the fact that the French version and the English version didn’t correspond.
The Chair: Yes.
Senator Forest-Niesing: In order to bring the French version in keeping with the meaning of the English version, it would simply require that the amendment be subamended to remove the reference to —
[Translation]
— “le fait qu’il a été adopté ou non” and replace it with “et son historique d’adoption.”
[English]
I believe that would satisfy the concern; it certainly does for me.
[Translation]
The Chair: Absolutely, and I think that Senator Bellemare shared this concern. I gather that you’ll move this subamendment?
Senator Forest-Niesing: Can I?
The Chair: Absolutely. We’ll need this subamendment in both official languages, I imagine, or do we already have it?
Senator Forest-Niesing: Do you want me to read it out loud? It’s the same as the one that we have, except for the last part of the text in French, after the word “et.” The number is KP-23.18a. Does the procedure require that I read the full text?
The Chair: I think so.
Senator Forest-Niesing: It’s a motion for a subamendment to clause 23 on page 18.
I move that Bill C-83 be amneded in clause 23, on page 18, by placing line 29 with the following :
« c) l’identité et la culture autochtones du délinquant, son passé familial et son historique d’adoption. »
[English]
In English, I move:
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.”
[Translation]
The Chair: I think that everyone has commented on this.
[English]
It is moved by the honourable Senator Forest-Niesing that Bill C-83 be — shall I dispense?
Hon. Senators: Dispense.
The Chair: Is the subamendment agreed?
Hon. Senators: Agreed.
The Chair: Shall the amendment carry?
Senator Pate?
Senator Pate: I was going on to the next one because another one was stood.
The Chair: First we need to agree on the amendment now that we have agreed on the subamendment.
Is the amendment carried?
Hon. Senators: Agreed.
The Chair: Shall clause 23, as amended, carry?
Hon. Senators: Agreed.
The Chair: Okay.
Because it was stood, the objective is to go back to the normal order. If you recall, at the time, we also stood amendment KP-2.1b on clause 2.
This was the subamendment that Senator Klyne and Senator Forest-Niesing were working on together. It was stood, so we are going to proceed with that now.
Senator Pate: I request leave of the committee to withdraw my original amendment to clause 2, KP-2.1b, and move a new amendment which takes into account the changes that were proposed last week by Senator Forest-Niesing and Senator Klyne.
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 ensures the effective delivery of
i) programs to incarcerated persons for the purpose of rehabilitation, including educational programs, vocational training and volunteer programs, and
ii) alternatives to carceral isolation, including alternatives developed in accordance with sections 29, 81 and 84;”.
This was the discussion we had about promoting a shift in culture. It just reorder.
The Chair: Just before we give time for senators who want to speak on it, I do need consent to withdraw Senator Pate’s amendment.
Is it agreed that Senator Pate withdraws her amendment?
Hon. Senators: Agreed.
The Chair: It is moved by the Honourable Senator Pate that Bill C-83 —
Senator Pate: Dispense.
The Chair: Thank you.
Comments or questions on this amendment?
Senator Seidman: It’s quite a substantial change, Senator Pate. I was prepared to say to the committee that I thought your previous amendment, that you have withdrawn, might be in a grey zone, in the sense that you were talking about allocating financial resources. From the point of view of the Senate, if you look in the procedure manual and rules about the Senate’s jurisdictional rights in legislation, there are great complications when we start telling the government to allocate its finances.
But now you have changed the substance of the amendment and, if I understand correctly, you have removed the phrase, “the Service allocates its financial resources.” I think it’s a much better amendment and it’s much more in keeping with jurisdiction of the Senate, so I would like to thank you for that.
The Chair: Thank you, Senator Seidman.
Comments or questions?
Senator Munson: I would like to hear from the officials.
The Chair: Senator Munson would like to hear from the officials.
Senator Munson: What is your view of this amendment?
Ms. Arnet Connidis: We can’t comment with just our perspective, but if you would like some advice on something, we can provide that to you.
Senator Munson: I would like to have a better understanding of what we’re voting on.
Marty Maltby, Acting Director General, Aboriginal Initiatives Directorate, Correctional Service Canada: Would it be possible to get us copy of the actual amendment? We didn’t get a copy at all, so we couldn’t even read it.
Senator Munson: I don’t need it now. I can go —
Senator Forest-Niesing: Given that I did a bit of work on this, perhaps I can respond while the officials are formulating their response.
The two concerns that were initially raised by Senator Klyne with respect to the original amendment, not what you have before you now, was that, on the one hand, there was an apparent direction with respect to the expenditure of financial resources that was seen to be inappropriate. The second element that required some review was that we could express more forcefully the desire to deliver effective programming. So the changes, with the advice of the law clerk’s office, were aimed at redressing that.
Senator Munson: It is all coming back.
Senator Forest-Niesing: I believe we have achieved that with the formula you have there.
Senator Munson: I’m good. Unless you have —
Ms. Arnet Connidis: Thank you for providing us a copy of the amendment. It helps to read it.
A couple of technical things. Section 84 is not about incarceration. It’s about release conditions, so it doesn’t really fit in here properly with the intent of this. Section 84, it refers in (c.1)(ii) to sections 29, 81 and 84. Section 84 is about making sure you have conditions of release where the Indigenous community can support the Indigenous offender on release, so it’s not about carceral issues.
The other one is that “carceral isolation” is not a defined term in the CCRA.
Senator Pate: I was wanting to look at promoting a shift in culture. Section 84 agreements are supposed to start from the moment someone comes into a prison and programming is built around building toward those. I would argue, it does fit into the effectiveness of how you develop programs and initiatives within the prison system.
Ms. Arnet Connidis: I would agree with that, except it’s not an alternative to incarceration. It’s a method of release.
Mr. Maltby, perhaps you would like to speak to that.
Mr. Maltby: A technical piece is that section 84 isn’t necessarily an agreement that we have. Section 84 is a release process we have in terms of ensuring that Indigenous communities are engaged as part of the community engagement plan for that release. It isn’t a formal agreement we signed with an organization or a community. But it is an engagement process that our parole officers work with in developing release plans.
The intent of that piece of our legislation is to ensure the community is engaged throughout the incarcerated period, which is fair, but it’s not necessarily a formal process about a transfer of jurisdiction or a transfer of custody as a section 81 would be. Section 84 is more a commitment with the community to engage and work with the offender and the community to develop a good release plan that sees positive supports in the community.
The Chair: Thank you.
Do we have any more comments? Are we ready to vote on that amendment?
Senator Kutcher: I have a question. You said “carceral isolation” isn’t a term that is used?
Ms. Arnet Connidis: It’s not a defined term in the CCRA, Corrections and Conditional Release Act.
Senator Kutcher: What does that mean?
Senator Seidman: I’m now struggling, of course, with all these new terms and new sections. The original amendment referred to the programs, and it does seem to me that (c.1)(ii) here, alternatives to carceral isolation, is new to us. It sounds to me like we are hearing things that leave question marks for a lot of people. I’m wondering if Senator Pate would be interested in taking out, in a subamendment or in herself, removing (c.1)(ii).
Senator Pate: I think there is a functional disagreement between the officials about what needs to happen for section 84 to happen. I would agree to remove section 84, but I don’t think we should remove 29 or 81, as we have had an amendment, moved by Senator Kutcher, around looking at the needs of those with mental health issues.
The Chair: Thank you.
Senator Seidman: Would you like to remove —
Senator Pate: Sure, I would remove — and if the issue of “carceral isolation” is causing people concerns, we could say “including alternatives developed in accordance with sections 29 and 81.” I say we should keep 84.
Senator Seidman: That’s good. Okay. That works.
Senator Pate: So leave 84 in then?
Senator Seidman: Yes.
Senator Pate: Okay.
The Chair: Can you read it out?
Senator Pate: So (i) would be the same. And (ii) would read: “including alternatives developed in accordance with sections 29, 81 and 84.”
The Chair: I do need an agreement in order for Senator Pate to remove that part.
Hon. Senators: Agreed.
The Chair: 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?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 2, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: So we are back on track to clause 24.
Senator Pate: Pursuant to Rule 10-5, I move that the committee reconsider clause 10.
The Chair: Are there any comments or questions?
Senator Pate: I would say that while the committee has already worked hard to improve this bill through several important amendments, I feel our work is incomplete if we leave in place measures that we have clearly heard risk violating human rights and constitutionally protected Charter rights, and that the bill will likely be struck down by the courts.
Courts and committee witnesses alike have identified three key issues as potentially giving rise to constitutional and human rights violations and they include: lack of a hard limit on the time someone can be isolated; a failure to meet court criteria for an independent review; and discrimination against those with mental health issues.
The amendments to clause 10 would respond clearly to these issues. Without the amendments we heard clearly from constitutional experts that the bill would likely be ruled unconstitutional. We know it has been referred to the Supreme Court of Canada, and I think it behooves the Senate to do the best job we are able. While some feel the committee is not well placed to consider constitutional concerns given that it has been such a rushed process, our colleagues at third reading who heard no witnesses and will have less time to consider this bill may feel less well placed to make amendments. We should do our utmost not to report back a constitutionally flawed bill. Otherwise we risk sending a message that we do not believe there are constitutional concerns worth amending while this was the opposite of what we have heard from our witnesses.
The Chair: Thank you, Senator Pate.
Does someone have a comment on reverting to clause 10? We need agreement to revert.
Senator Seidman: I would say that, again, it is quite unusual. Normally we complete clause by clause in one meeting, and the fact that it goes over several meetings is already something quite new for this committee. The opportunity to go back and redo amendments that we’ve already seen and voted on — and in this case did not pass — and now to go back and try to redo the amendment in a different format is quite out of the ordinary.
Senator Pate, I fully respect your expertise, professionalism, perspective and what you are offering all of us. If the committee agrees to revert to clause 10, I will, of course, follow the will of the committee. But I felt it was important to make the point that this is highly unusual.
Senator Stewart Olsen: Information only, but would that not be better done at third reading in the chamber rather than going back? Most committees on which I have served don’t go back and redo amendments, but they can do that in third reading. I’m not sure. I’m asking.
The Chair: I can say that it is not happening often. It is not very typical to do it, but the committee has the right to revert if we have a majority of senators. Maybe that’s where Senator Pate can help us. In order to justify this, we need to be assured that the amendments are sufficiently different from the previous amendments in order to justify something that is so unusual.
So you think that it is different?
Senator Pate: I actually do see the amendments as quite different. I have been working with Senator Forest-Niesing on the amendments. Senator Forest-Niesing will move part of it, and part of it I will move. It is repealing that whole provision because of how fundamental it is to what the stated objective of the legislation is. The amendment moves us in the direction of the legislative intent.
Senator Klyne: I’m trying to understand here. You’re going to try and amend the amendment, or are you trying to pass this amendment or put through the amendment as it was?
Senator Pate: We are trying to go back to clause 10 and amend it, not —
Senator Klyne: There are a lot of pieces in there.
The Chair: Senator Klyne, if I may — and if I’m wrong someone will help me — what Senator Pate is intending to do is to ask consent so that we revert to clause 10 and move a new amendment. As I said, this committee has the right to do this, if the majority of senators consent to this. The question is, unless there is more questions or comments, are we in agreement to revert to clause 10?
Senator Stewart Olsen: I just don’t understand why this was not brought up when the original discussion of that clause was done and perhaps it was. I’m Senator Poirier for the moment, so I’m not sure.
Senator Pate: My view was based on how the discussion went at the time we were dealing with clause 10, that it is so interconnected and complex that even just reading out, I think people lost the train of what the amendments are. You are reading the amendment and it is a portion of this clause and a portion of another clause. This attempt is to try to clearly identify what is not in the bill right now, in this crucial section, clause 10, which defines the way that Correctional Service Canada can separate people in what is now considered segregation.
Senator Forest-Niesing: If I may speak in favour of the motion to grant leave, and you may recall that when we discussed this at the last meeting, my sentiment was shared with many of the committee members. It was a bit overwhelming to see the content of the amendment be so far-reaching and to cover so many of the issues that had been discussed and that we had heard testimony on. I think in fairness, clause 10 is really the heart of this particular piece of legislation.
I have since had the time and, having studied it further, have come to the conclusion that there is merit in us giving serious consideration to the amendments being proposed in this new form. I think you will find them less overwhelming, hopefully, if my explanations are clear, and which you will find more palatable, as will the government, ultimately, I would hope.
I won’t get into the detail of the amendment, and hopefully I will have an opportunity to express why I would support not only reopening it but voting in support of the proposed amendment to clause 10.
The Chair: Thank you.
Senator Omidvar: I support the motion to reopen clause 10 again. I am satisfied that the three amendments are substantively different from the ones we have received before. I think we are in unusual times. We were rushed last time. I come out of these hearings feeling compelled to say that sober second thought does not happen in a nanosecond. It takes time. From that point of view of fairness to the people in prison, fairness to Correctional Service Canada staff and public officials, I would like to revert to this clause. It does not mean I may agree or not agree with them. I still have to listen to the arguments.
The Chair: Thank you. I believe Senator Klyne wants to speak and then we should vote in order to see if there is a leave to revert.
Senator Klyne: Along the lines of Senator Omidvar, I heard the word “substantive” and others. This is a big amendment. On the point Senator Omidvar was making, we would need time to consume this, whatever it is going to be. For me — which I will comment on if it stays in — there are three show stoppers in here. I could sit and listen to the amendments, but at the end we may need time to consider what this means. I don’t know if we are going to get it solved here today.
The Chair: I think we have heard enough and many points of view. Is leave granted to revert to clause 10? Is it agreed?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Senator Pate, did you wish to move an amendment?
Senator Forest-Niesing: I will be happy to do that. Please bear with me. As I indicated earlier, this is the heart of this piece of legislation. I will require your attention, but I promise not to abuse that. I have reduced my comments to you to a one-pager. Hopefully, I can cut to the chase and give you the information that I think is essential for your consideration.
Let me start by first reading —
The Chair: Senator Forest-Niesing, I want to make sure everybody is following. Does everybody have a copy of the amendment? I just want to be sure of that because it is substantive. It is the one identified KP-10.4(b).
Senator Forest-Niesing: In accordance with procedural requirements, I will read the amendment. I move:
That Bill C-83 be amended in clause 10,
(a) on page 4, by replacing lines 28 to 33 with the following:
“10 sections 32 to 37 are replaced by the following:
32(1) The service must, in respect of administrative segregation or any other separation of a person confined in a penitentiary from the general population of a penitentiary, comply with:
(a) the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted on December 21, 2010;
(b) the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted on December 17, 2015; and
(c) The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted on December 14, 1990.
(2) For greater certainty, every reference, in the instruments referred to in subsection (1), to “solitary confinement,” “close confinement,” “disciplinary segregation,” “placement in a dark cell” or “closed confinement” shall be read as a reference to administrative segregation for the purposes of this Act.”
(b) on page 5 by deleting lines 1 to 39;
(c) on page 6 by deleting lines 1 to 36;
(d) on page 7 by deleting lines 1 to 38;
(e) on page 8 by deleting lines 1 to 37;
(f) on page 9 by deleting lines 1 to 36;
(g) on page 10 by deleting lines 1 to 38;
(h) on page 11, by deleting lines 1 to 38;
(i) on page 12 by deleting lines 1 to 39;
(j) on page 13 by deleting lines 1 to 42;
(k)on page 14 by deleting lines 1 to 39; and
(l) on page 15 by deleting lines 1 to 25.
As I heard my colleague, Senator Seidman, repeat a number of times while I was reading this amendment to you on the record, yes, the effect of this amendment is, in essence, to repeal article 10. I appreciate that there might be a collective gasp in response to this, but let me explain to you the effect and the intent.
It is, at its initial appreciation, a dramatic amendment. Repealing clause 10 has been confirmed by the Office of the Law Clerk to be the simplest way to accomplish the end goal.
The end goal is this: The repeal of clause 10 wipes the slate clean and allows for this amendment to introduce the very basic standard minimum international requirements in respect of the human rights of incarcerated individuals. The issue and the importance of this particular amendment is, as has already been argued by Senator Pate, in support of the motion for leave, to allow us at this juncture to take into consideration that in the period of time between the drafting of this legislation by the other place and our consideration in committee of the content of the draft legislation, the fact that the legal framework has completely changed. It has changed as a result of the Ontario Court of Appeal decision rendered on March 28, 2019, it has also changed in light of the views expressed in the judgment by the British Columbia Court of Appeal. Those two decisions have the effect of rendering the very important content of section 10 unconstitutional. With due respect, I believe it would be a grave error on the part of us to overlook the fact that the legal framework has changed, making this piece of legislation no longer constitutional and to accept a clause that contains elements that are contrary to our charter.
That being said, the replacement of clause 10 with what is being proposed will achieve a result that is less far-reaching than the original amendment that was being proposed and caused some level of discomfort on the part of members of the committee. Which I shared, as you may recall.
The recognition and the insistence upon compliance by correctional services of the minimum international standards established in the Nelson Mandela Rules, the Bangkok Rules and in the UN Juveniles Deprived of Their Liberty Rules, are the strict minimum. Specifically, with respect to juveniles and individuals suffering from mental or physical illness, there is no change for those categories.
There is a difference, however, with respect to the category for women.
Originally, 10 days ago, we were talking about creating a separate section for all women. In this amendment, we are talking about creating an exception that is consistent with the Bangkok Rules and applies to women who are pregnant, have infant children or are breastfeeding. Nothing further than that, and as a result — and despite the fact that there is probably much more that I could say — it’s probably an appropriate time to close my comments and invite questions, if you have any, with respect to the amendment.
[Translation]
Senator Bellemare: I want you to explain how this amendment complies with the principle of the bill. Does this amendment contradict the principle of the bill? To put the question in a more positive light, I would like you to explain how this amendment is consistent with the principle of the bill. I gather that all the structured intervention units will disappear.
Senator Forest-Niesing: I’ll try to provide a concise answer to a complex question.
[English]
The SIUs created in section 10 are repealed as a result, and replaced with a more general expectation or requirement that there be compliance with the provisions of the Bangkok, Mandela and Juvenile UN rules. We don’t talk in this amendment about SIUs.
[Translation]
Nothing in this legislation, nor any part of the legislation or the bill as originally drafted, prevents the Correctional Service from creating SIUs. These units could have been created a long time ago, in keeping with Correctional Service Canada’s policies. The units could have been created regardless of a legislative requirement, and they could still be created, in keeping with Correctional Service Canada’s policies. Nothing is preventing the creation of these units.
However, by eliminating this language and by replacing the clause with the confirmation that we’re complying with the principles established in the rules in question — the Nelson Mandela rules, the Bangkok rules and the rules for juveniles — we ensure that the minimum international criteria are met. This is not only in relation to the categories that could be exempted from segregation or prison segregation measures, but also in relation to the imposition of a maximum of 15 days in prison. This specific principle is unconstitutional in the bill as it currently stands. Several witnesses have told us that “we absolutely need a 15-day limit.” On that note, I have no doubt that, to be constitutionally sound, the bill must at least include this provision. In addition, it sets out judicial review mechanisms, as recommended by former Justice Louise Arbour, and an exception for persons with physical or mental disabilities.
I’m not sure whether I answered your question. However, basically, regardless of the fact that we’re not talking about SIUs, the discussion shouldn’t focus on the subject. We should talk about and focus on compliance with a set of minimum rules established in international conventions.
[English]
Senator Seidman: Thank you very much, Senator Forest-Niesing, for your very thorough explanation in response to Senator Bellemare’s question, because that was really the essence. That was the big question here, right? I appreciate that.
I also appreciate that what you’re trying to do is put in place United Nations rules for treatment of women prisoners and basic standards.
I’m still in shock because I feel like we’re gutting the bill, basically, by taking away the whole point of the bill, which was to set up the structured intervention units. What I would like to go back to, though, is the very premise of this. I may have to ask the officials to answer a question here because the premise is that all the court rulings have already happened, and that the interlude between creating this legislation and the court rulings being pronounced now makes this legislation unconstitutional and moot.
I would like to be sure, because it’s my understanding that there are still court rulings that haven’t yet been pronounced. So there are outstanding rulings on this. I would like to hear from the officials about the status of the court rulings on this constitutionality issue.
Juline Fresco, Counsel, Department of Justice Canada: Thank you for your question. That is correct, actually. The state of law and administrative segregation is quite in flux. In fact, almost every decision is under appeal, so if I can just break it down, not to get too technical, there are two constitutional cases. One is coming out of B.C., I call that BCCLA, the British Columbia Civil Liberties Association, and the Superior Court made its decision but that is under appeal. We are awaiting that decision. It has not come out yet. We expect hopefully will come out soon, but it hasn’t come out yet.
You referenced the CCLA, which is the Ontario one, the Canadian Civil Liberties Association. That was the finding you referred to with the 15-day hard cap. That is correct. However, Canada has sought leave to appeal with the Supreme Court of Canada and we’re still awaiting a decision on that. As well, one of the class actions also is under appeal. So I would just say, yes, they are under appeal.
Senator Seidman: Okay, thank you. That is very helpful because it means it’s not quite so definitive. It’s not like everything has changed since this legislation came forward.
With all due respect, I understand fully what you are trying to do here, but my argument would be that we don’t have the final Supreme Court rulings yet, so it just seems like this is an overstep and an overreach on our part. If the Supreme Court rulings come down and the cases are all lost, then it’s a different story. Then we have to go back to the drawing board and say, “Well, this legislation is no longer within the confines of Supreme Court rulings.”
But I don’t think I’m prepared to gut the bill now on the premise that it’s a lost cause, ultimately, on the part of the Supreme Court.
Senator Omidvar: The substance of my questions have been answered. I would like to reflect on the various discussions we have had in the chamber and in committee on issues of constitutionality. I am not a lawyer, and I am certainly not a constitutional lawyer, but there are many of our colleagues who are. And I can buy lots of drinks for lots of people if count all the times they have disagreed with each other on matters of constitutionality.
I have schooled myself to say I will listen to those who are, but it’s not my job. I can’t second-guess the Supreme Court. I can’t. I’m not able to do that.
I go back to the other point that you make around international conventions. I think that is a very good point that you make, that we have signed on to Mandela and Bangkok. These are aspirations that we have but they are not law. I remember Senator Boehm in the chamber describing to us very eloquently the difference between conventions, treaties and compacts, et cetera.
I go back to my question around the intent of the bill. Perhaps I can ask our public servants here. If this amendment is passed, what does it do to the intent of the bill?
Ms. Arnet Connidis: Understanding that I have just seen a very significant amendment, the Mandela rules are essentially about solitary confinement. Some people call that administrative segregation. It would bring back solitary confinement with parameters around it. Even with a 15-day cap, there are some people who still might be a danger if they are released back into the population, so we would need another mechanism that isn’t administrative segregation that would still protect safety. That would probably be something like an SIU. In fact, you would have two years less a day of administrative segregation which doesn’t provide as much as SIU. Then if they were still a danger, they would have to go into something like an SIU. Without the authority to have the external reviewers, et cetera. Understand, I have just seen this.
Senator Omidvar: Thank you.
Senator Munson: To be brutally honest, this is so complex. To be sitting here this afternoon, going through all of these rules that we have studied and seen before and are passed — some are passed in our international work. Then having the government and the officials putting together what they felt was a bill meeting a need. And then seeing what we have here in front of us, again, for the first time in a different way. The complexity of this is almost too much to bear to make a decision.
I rarely abstain. Senator Pate, I worked with you and I’ve been into these prisons as a chair of the Human Rights Committee. I get that, I see that. I see honourable intentions by the government trying to do this. I see outstanding court cases. I see things that I don’t really understand, to be honest with you.
I don’t know if a person should admit that at this stage of the game being in the Senate for this number of years. But some of it is when you get to certain bracket in a subsection and you have to put this into context of what it means, even though from a human rights lens I have a great deal of empathy and compassion. To put on the record, I personally will probably have to abstain on this. Thank you.
Senator Pate: Well, thank you for all the issues raised. I want to come back to an issue that was raised that the point of the bill was to introduce SIUs. In fact, the point of the bill as articulated by the minister was to eliminate the use of segregation. SIUs, as we have heard from a number of witnesses, most notably the Correctional Investigator, could have been implemented without legislation. It’s very clear that this legislation is in response to the court cases we’re talking about and since those court cases, different decisions have been made. Admittedly, yes, they are under appeal, but the evidence is clear that all of the courts have agreed, segregation is solitary confinement and the United Nations rules could apply.
If the point of the bill is to eliminate segregation, then I would argue that we have a responsibility as senators to assist that process. One of the ways — although it doesn’t go as far as I personally think it should go — the approach that Senator Forest-Niesing and an amendment that I hope to make, would actually help us get that far, and help us ensure that in the gulf between when the Supreme Court of Canada makes a decision that we have some measure of accountability by corrections for those who are in segregation by whatever name. Structured intervention units, solitary confinement, segregation, mental health observation, intensive psychiatric care, safe lodges — whatever the name, that there is some measure of oversight. We don’t have that with this current legislation.
Evidenced by that is the fact that it would take up to 90 days, well past the time that severe consequences could have occurred for people before it actually gets to the review stage. I think we have a responsibility to act in a different way.
Some of you may be aware it’s in the news right now. Another example of not segregation but prisoners who were being allegedly sexually assaulted. The issue was not reported to the police, not just internally, but not to the police for over at least three months, possibly more, possibly as many as seven years. As a result, evidence has now been destroyed. I’ve been advised by the police involved that evidence which should have been made available has been taped over and is not available. That’s the kind of pressure. The reality we’re facing is that you’re talking about a prisoner in a locked cell who does not have access to make a phone call sometimes, to get ahold of people and is relying on the structures that exist currently to monitor those. What we’re suggesting is some other mechanisms that we need to put in place to ensure that kind of accountability exists.
The Chair: Thank you.
Senator Stewart Olsen: I’m listening to all of this. I’m listening to very learned people who know what they are talking about. I personally don’t, because I haven’t followed this bill. The suggestions that you make indicate to me that perhaps the bill should not proceed. It should be redrafted completely by the government. I’m not sure what the good is of trying to amend a bill that you see as so flawed. I think it’s a lot of work. As everyone has said, we’re not constitutional experts. We don’t really know. Just based on hearing everyone’s testimony, I would say this committee should recommend that the bill not proceed and it should be redrafted with the case judgments coming down in the Supreme Court. The points you make, say it is not good enough, it’s going to be unconstitutional. That is one of our basic mandates. If we feel a bill is that badly flawed as to lean toward unconstitutionality, then perhaps it shouldn’t proceed.
Senator Forest-Niesing: The suggestion that the bill shouldn’t proceed causes me grave concern. The reason that I would be concerned is that we heard clearly from many witnesses that a change in culture is necessary. The safeguards that are contemplated by this bill, and in particular by the amendment that I’m proposing to you, are essential. In addition to being essential, it is my submission to you that, if accepted, this amendment will bring some necessary correction to what we can all agree is a flawed bill, given the current judicial or legal context.
To the earlier point that the state of the law is still undefined and undetermined. While I agree that the decisions could be overturned, I can’t ignore the fact that the state of the law is as it is today. The courts that have expressed a view that is consistent with the amendment that I am proposing. If the Supreme Court of Canada comes down with a decision that is inconsistent at a future time, then the necessary corrections can be made. In my view, something is better than nothing. It is unreasonable to attempt to perfect it, but to bring these very necessary corrections are well within our ability, and my respectful submission is that it’s our responsibility.
Senator Seidman: As we go around the table again, I fully empathize with what you’re saying, Senators Forest-Niesing and Pate. I also feel very similar to Senator Omidvar and Senator Munson that this is hugely complex. This is clearly a flawed piece of legislation. I understand that fully. I have, echoing in my ears, second reading pleas in the chamber that were extremely powerful about the constitutionality issues of this legislation.
By the same token, I don’t feel able to make an amendment as significant as this. I would prefer to see this kind of amendment, or this amendment, go to third reading in the chamber where we can have, once more, the voices, constitutional lawyers and the people whom we listened to in second reading who had such great wisdom. I would like to hear what they have to say and how they debate this amendment because I think it’s of enormous value.
I understand the first principles that you’re speaking to; I truly do. But I feel this would be far better placed to be heard in a fulsome debate in the chamber in third reading, where we would hear the wise voices of our colleagues who can speak with real knowledge about the constitutionality of clause 10.
Senator Eaton: I’m going to put on my cynical “been here for 10 years” hat. Minister Goodale is an extremely experienced minister. This is an exceedingly complex subject. I can’t believe he overlooked what is going on in the Supreme Court or that the Justice Department would have overlooked that. We can sit around this table — and, Senator Pate, knows more about prisons than any of us put together — but if this is what he intended with this bill, they simply will not pass the amendments.
We can go ahead and debate it until the cows come home. I saw it with cannabis. I saw it in the right to life bill. The cannabis amendments we proposed were not major. They were things like not advertising to youth, putting the strength on the bottle. They were turned down by the government. That’s the government’s right. So we can pass an amendment that is very complicated, but if they see that this is not what they wanted to do with the bill, and they are not prepared to pay for those changes, we can desire all we want. They will simply turn us down.
I think if we want to make any kind of a change, it has to be very simple. I supported Senator Kutcher’s mental health amendments. I thought they were reasonable. There is something that the prison could undertake, and that they should undertake. They even told us themselves that 80 per cent of inmates have some form of mental illness. But I think if we get too complex, we’re just hurting ourselves and they will turn us down.
Senator Omidvar: I would like to speak to Senator Stewart Olsen’s comment that this bill is so flawed we should not let it proceed.
In my time in the Senate, which is definitely not as deep as yours, senator, I have not seen a bill that is perfect. Every bill is flawed. In my experience as an activist, change is rarely transformational. It is always incremental. I think so far, we have approved the mental health assessment. We have made changes to alternatives, consideration to alternatives to segregation. We have just approved another amendment around allocation of priorities.
I think about the one aspect that we have not mentioned in this bill, which is the amount of time of meaningful, human transaction will go from two hours to four hours. I think of those individuals, and Senator Pate, I have so much respect and admiration for the depth of the work you do, and I certainly do not have that depth. But I am a human being, and I think of someone in a cell, segregated and they have an opportunity to take that time from two hours to four hours.
And maybe I grasp at straws but that’s my nature. We can continue to improve this bill, so I’m not interested in rejecting the bill, killing the bill here, no. I do suggest we vote on the amendment proposed.
The Chair: I would ask if you have something to add, and then we will proceed with a vote.
Senator Dasko: I have some questions about the amendment, and having just been to the Collins Bay institution with Senator Pate this week, I am suddenly an expert on penal institutions. Sorry, but that’s just trying to make light of it.
Of course, it’s very instructive to see segregation and to see the way a prison is set up.
My question is actually quite basic. The way clause 32(1) in the proposed amendment is worded, would it suggest changes to other aspects of the way the institutions are run? Because it says:
32(1) The Service must, in respect of administrative segregation or any other separation of a person confined in a penitentiary from the general population . . . .
Most of the prisoners are separated from the general population of the prison. That is the way the prison is set up, different sections, people separated from a general population. Does the amendment affect that? It doesn’t just affect administrative segregation, but it affects other separations from the general population. In Collins Bay, for example, nobody is part of a general population. It’s divided into three sections, so everybody is segregated in different sections. Nobody is in a general population.
My question is: Does your amendment change the way the entire institution would be run?
Senator Forest-Niesing: I listened very carefully to you. I’m not sure that I quite agree with the interpretation. I can assure you that the intent is not that. It’s not intended to apply to every penitentiary where it can be seen that persons who are incarcerated are separated from the general population because of the organization or the structure of that penitentiary requiring subgroups or some divisions within the incarcerated population or general population, if we use the expression.
Senator Dasko: Is there a problem with the wording of it, then?
Senator Forest-Niesing: I might call on Senator Pate to respond to that, if you would.
Senator Pate: What you saw at Collins Bay was the amalgamation of several institutions that used to be separate institutions under a deficit reduction initiative undertaken by corrections over the past decade. So yes, there is a general population of maximum security, a general population of medium and then a minimum security unit outside. All have programs and services. So each of those will be described as general population.
I agree it was confusing because when the minister presented he talked about the cells in segregation looking very much like the cells in maximum security. Certainly in the penitentiaries for women the use of segregated units for women became very prevalent as it has in some of the units for men, and we saw that in the maximum security unit in Collins Bay.
Certainly that’s another issue that this bill doesn’t address. I would suggest that the proposed amendments may have some issues around conditions of confinement but, in fact, don’t address the particular issue of the amalgamation of several institutions.
Senator Dasko: My point is that nobody is in a general population. They are already separated into different units. When I read this, it would seem to affect everything in the prison, the amendment. You’re saying — it’s just the way I read it.
Senator Pate: In most prisons the people of the same security level will mix. In some of the prisons minimum and medium mix as well. The maximums usually don’t mix.
Senator Munson: I really believe that after listening to everybody that third reading — and the strong voice of senators who understand constitutional law or whatever when you hear Senator Joyal and others speak — I’d be much more comfortable. This is but one committee studying a very important piece of legislation. When a committee speaks, it has influence. When the Senate speaks, it has more influence as a chamber. If people are convinced at third reading that this is what they would like to see, then it’s there.
Then you have to make the further commitment because if this goes back with this amendment, as has been said, the government will not buy into this. It basically kills this particular bill. They say, “no.” It comes back. Then you have to make another commitment: Are you ready to fight again? I haven’t seen it yet. I understand our role as senators. I understand our role as improving, amending and getting legislation back to the other side with the due process involved. But at the end of the day I have a really difficult time, after 16 years here, to say that we will fight in the trenches to the end and that our voice is the final voice in this.
I happen to believe that at the end of the day, despite all the wonderful, honourable intentions here, that the final voice belongs to the elected folks. Thank you.
Senator Forest-Niesing: Mine is more in the form of a question. I’m not sure I know the answer to it and I stand to be corrected, but if it is the preference of this committee to leave to third reading consideration of the content of this amendment, am I correct that if this amendment is voted on in committee and defeated, that it cannot be raised again in third reading for consideration by the Senate? It can?
The Chair: Yes.
Senator Forest-Niesing: Then I’m comforted by that. That was my only intervention.
Senator Klyne: There were a number of points made here. You asked if anybody could add anything. I don’t think I could add to the comments of Senators Munson or Eaton. But I do want to reflect back to a comment from a previous committee meeting where Senator Seidman, I think, gave good advice, namely that this should go to third reading and if there are pieces that speak to the constitutional issues, that would be the time to do that.
I do believe that this bill as it is coming forward and the amendments that are being made right now is going to meet constitutional requirements. We are making improvements to it right now on that basis. In terms of need to separate people, there is a plethora of reasons: For the safety of themselves and others and staff. Not everybody will be ready to come out on day 15. They might be ready on day 2. Mental health wellness is a serious thing around that and we have addressed that.
I just leave that in consideration for this committee. I’m not on the committee but I think purposely this needs to move forward. Not at the juncture it is now, but if there are constitutional issues they should be spoken to in third reading.
Senator Pate: I wanted to stress that just because the issue came up that this goes from two to four hours of meaningful contact, that is actually not what the bill says. The bill says it goes from two to four hours out of the cell. A number of our witnesses have pointed out that this could actually be in isolation, and there are some significant problems meaningful contact because there will be correctional officers present and all of the other administrative requirements.
We have to be careful about what we are concluding. It does not mean four hours of meaningful contact at all.
The Chair: We have heard a lot and I want to thank you. I think we all understand it is a complex, significant and yet overwhelming amendment, I believe.
Thank you for your insightful, respectful comments. Senator Forest-Niesing, you are moving the amendment so I will grant you 30 seconds.
Senator Forest-Niesing: It might save a considerable amount of time. What I’m hearing convinces me that the committee is concerned about the scope and impact of this particular amendment. I certainly understand that. I am also hearing that some favour a more fulsome discussion in third reading. Rather than proceed with a vote and potentially see this very important amendment defeated, I would be willing to withdraw the amendment at this stage in favour of the more fulsome discussion in third reading. But the record should reflect that I will be supporting in third reading the content of this amendment.
I do invite you in the intervening period to confer with me or Senator Pate with any of your questions so that we can hopefully persuade you of the importance of introducing these corrections to the most flagrant flaws of this bill.
The Chair: Thank you very much. We do need consent to withdraw an amendment, so is it agreed that Senator Forest-Niesing withdraw the amendment?
Hon. Senators: Agreed.
The Chair: On division.
Mr. Charbonneau: It has to be unanimous or not.
The Chair: My apologies. It needs to be with leave, so it has to be unanimous.
Hon. Senators: Agreed.
The Chair: Thank you.
Senator Pate?
Senator Pate: I move:
That Bill C-83 be amended in clause 10, on page 5, by replacing lines 19 and 20 with the following:
“33 (1) Any confinement in a structured intervention unit is to end as soon as possible. In particular, no such confinement is to have a duration of more than 48 hours . . . .
The Chair: The amendment is being circulated. Is the amendment KP-10.5?
Senator Pate: There are two versions.
Amendment KP-10.4c is the incorrect one; this is KP-10.5.
I move:
That Bill C-83 be amended in clause 10, on page 5, by replacing lines 19 and 20 with the following:
“33 (1) Any confinement in a structured intervention unit is to end as soon as possible. In particular, no such confinement is to have a duration of more than 48 hours unless authorized by a Superior Court under subsection (2).
(2) A Superior Court may, on application by the Service, extend the duration of the period referred to in subsection (1) as the Court considers appropriate if, in the opinion of the Court, the extension is necessary for a purpose prescribed in subsection 32(1).”.
This goes to the constitutionality again. It also goes to the evidence that we’ve heard around the need for oversight and the overwhelming agreement from witnesses that oversight of Corrections by the courts, as recommended by former Supreme Court Justice, Louise Arbour, is the best way to effect effective oversight and to ensure and uphold human rights and the rule of law. This is consistent with what the cases have said as well and is consistent with the evidence that harm can occur within several to 48 hours of isolation. If, however, there is a good reason, a defensible reason, that someone must be kept in for a period beyond that, then the onus is on the Correctional Service Canada to apply to the superior court for permission; that can be established.
This brings into line the Correctional Service Canada as the last branch of the administration of justice to have the Charter applied to it and to have these kinds of provisions. We have it in bail provisions. We have it in search warrants. We have it in right to counsel. We don’t have it yet in the provision for jailing or isolating within the jail, which is segregation.
The argument has been raised that the numbers are too many. By Correctional Service Canada’s own numbers, there are 300 men overall and about 3 women who are currently in segregation. This amendment would likely incentivize Corrections to diminish the use of segregation and it would likely increase the release of folks. It would also buttress what we heard from correctional authorities; that they have gone without segregation for periods of time. We also heard that from experts.
It is also important that the arguments made by Correctional Service Canada around the desire not to have judicial oversight actually are reminiscent of the arguments we heard 40 years ago when the Charter was introduced from police officers that, by the time they read rights, people would be gone. By the time they got a search warrant, the evidence would be gone. By the time we have a bail review, the process is passed.
We have just had it reinforced by the Supreme Court of Canada that, in fact, those bail reviews which are thousands and thousands at a time have to be done, despite issues around delay in court. We are talking about a much smaller number here.
The Chair: Any questions or comments? I know the officials want to speak on that.
Senator Klyne: I am looking for clarity. I was also going to ask the officials. Looking at this reference to 33(1): no [...] more than 48 hours unless authorized by a superior court under subsection (2). I am trying to find out where you are referencing here. Who refers this to the superior court?
Senator Pate: It would be Correctional Service Canada.
Senator Klyne: Any time they want to do something beyond 48 hours, they have to appeal to a superior court?
Senator Pate: If they have someone whom they want to send to segregation, if they then establish this in court, there would be some review mechanism.
Senator Klyne: Every time that happens they go to superior court?
Senator Pate: That’s right.
Senator Klyne: There are a number of issues here. This is being done for the good of the individual and it’s pretty clear-cut that it has to happen, but they need to go to superior court for that?
Senator Pate: If the person were in agreement and they went to superior court, that would likely satisfy a judge.
Senator Klyne: On the next one, the superior court may upon application by the service — here is another one again where every time they want to do something, they appeal. Through all of this, there is the OCI which is always available. They have the opportunity to go in, as does the independent external decision maker. At some point, if someone wanted to overturn any of those decisions by the OCI or the IEDM, they could appeal to the superior court. Here again, each and every time, in every instance, there is an appeal to the superior court.
Senator Pate: The Correctional Investigator has no decision-making authority. It is part of the reason they were recommending this. You heard Ivan Zinger recommend judicial oversight for those reasons. That is why so many recommended it. As I mentioned earlier, there have been many initiatives — Ashley Smith, the Prison for Women situation, Matthew Hines, and countless other incidents of people in custody. There are countless examples of Correctional Service Canada being expected to act on its own, according to its own policy and current legislation, but it did not.
Senator Klyne: With all due respect to all current and past issues, if what is being applied here within this bill will be applied, I have to say there would be mitigation. If it didn’t mitigate it, it would have mitigated a lot of those things if this bill is followed within the institutions. We have to talk about what would happen in the future and not what has happened in the past. We are moving forward with this bill.
I want to ask if the officials could speak to this —
Senator Pate: I am sorry to interrupt while you are speaking but, if in fact that was true, then the current provisions in the Corrections and Conditional Release Act would be being followed and we would not be having this discussion to diminish the current procedural safeguards that do exist but are not followed.
With respect, the example I used earlier of the sexual assault allegations is unfolding as we speak. That was a discussion I had this morning. The reality is saying that this will change just by having this in this current format is not a comfort to anybody who knows much about what is happening within our prison system.
The Chair: I’m concerned about this turning into a debate. I know Senator Seidman wanted to speak. Did you want to hear from the officials? Did you have something to add to that?
Ms. Arnet Connidis: Applying to the court is not a quick process. We haven’t consulted the courts about the additional workload for them which is something we would have done if we were having a court process. I will put that down there.
Louise Arbour made some very strong and helpful suggestions, but her timeframe was a 30-day period before something went to a court. She also acknowledged that a judicial oversight process may not be possible in which case you would have an independent external process after 30 days. She did say, in that case, it should be done by lawyers. Our suggestion for external oversight is to have people with knowledge of administrative law processes.
There is a broader context to Louise Arbour’s recommendations that are helpful. I’ll stop there for right now, unless there is anything else.
Senator Seidman: Part of my question was how lengthy a process is it to apply to a superior court. I guess you’ve answered that?
Ms. Fresco: There are different avenues that an inmate has available. There is habeas corpus which is quicker but an application for judicial review can take some time.
Senator Seidman: It’s specifically with respect to this amendment which is about the confinement having the duration of more than 48 hours.
Ms. Fresco: As Ms. Arnet Connidis said, this is done without any consultation with the court so, as is, I could not comment on it. From what I can see right now, a superior court may do this unless otherwise authorized by a superior court, but it does not explain how the superior court gets that and makes a decision without that. That information is not on this page.
Senator Seidman: My other question is about the language in subclause 33(1) that says, “to end as soon as possible.”
I guess this question would be for Senator Pate. “To end as soon as possible,” but then the language following that is “no more than 48 hours.”
Senator Pate: Thank you for that question. The language is specifically “48 hours” because of the amount of damage that can be done within 48 hours. That has been established. It would not mean that it couldn’t continue. If a judge is convinced and — presumably, if all the reasons are in place being characterized — there were reasons to keep someone separated, then a judge can make that ruling. This is about ensuring that it is not used as frequently as it historically has been.
I want to comment about the issue that Louise Arbour made these recommendations 23 years ago. Anybody who has heard her speak recently on this issue — she is very clear and she would say now it should be within 24 or 48 hours. In fact, at the time she made those recommendations, we did not have the expertise or the knowledge about the impact of solitary confinement on individuals 23 years ago.
Another point made by the police this morning was the minute Corrections wants to lay criminal charges against someone, and the example is if someone spits and it happens to land near someone’s foot, they will call in the police to lay a charge in that instance. And there is no hesitation about invoking the courts in those situations at a much higher rate than 300 per year, the absolute maximum that we would be talking about here. I suspect, if we consulted with the courts, particularly given the decisions that are coming down from the courts, they might be quite comfortable receiving the 10, 20 or 30 per year that they might receive.
The Chair: Are we ready to vote on this amendment?
Senator Omidvar: Did you consult with the courts on this? Did you consult with the system on this?
Senator Pate: I didn’t consult broadly, but I certainly have spoken to judges and lawyers who have worked in this area over a number of years about this issue. Their view is it is probably time for judicial oversight. We are likely looking at a phasing out of segregation, solitary confinement, whatever we call it, eventually, much as we’ve seen with flogging, bread and water diets, the silent system.
Senator Omidvar: They can manage this? That is my question.
Senator Pate: That’s my understanding.
Senator Omidvar: Because there are only 300 people.
Senator Pate: Across the country.
Senator Omidvar: So 48 hours.
The Chair: Officials want to speak on this.
Senator Pate: And there are 30,000 people in provincial custody awaiting trial.
Luc Bisson, Acting Director General, Executive Secretariat and Chief of Staff, Correctional Service Canada: What is important to recognize is that while on any given day there may be 300 inmates in segregation today, over a period of a year you are looking at thousands of cases, many of which are for short periods. You’re talking in excess of 5,000 reviews that would potentially occur.
The Chair: Thank you. I know that we hear the bells. We do have permission to meet while the Senate is sitting, and I suggest that we do so and continue our work until the vote. We will make sure that we are on time for that vote. Do not worry about that.
It is moved by the Honourable Senator Pate that Bill C-83 be amended on —
Hon. Senators: Dispense.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Eaton: Can we have a recorded vote?
The Chair: Yes, we can have a recorded vote. Before we proceed to the roll-call vote, I want to remind senators that the rule indicates 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 we will proceed with a roll call. The clerk of the committee will call members’ names, beginning with the chair, and then going into alphabetical order. Senators should indicate whether they vote for, against or abstain. Then we will announce the results of the vote.
[Translation]
Mr. Charbonneau: The Honourable Senator Petitclerc?
Senator Petitclerc: Yea.
Mr. Charbonneau: The Honourable Senator M. Deacon?
Senator M. Deacon: Yea.
Mr. Charbonneau: The Honourable Senator Eaton?
Senator Eaton: Nay.
Mr. Charbonneau: The Honourable Senator Forest-Niesing?
Senator Forest-Niesing: Yea.
Mr. Charbonneau: The Honourable Senator Mégie?
Senator Mégie: Yea.
Mr. Charbonneau: The Honourable Senator Munson?
Senator Munson: Yea.
Mr. Charbonneau: The Honourable Senator Oh?
Senator Oh: Yea.
Mr. Charbonneau: The Honourable Senator Omidvar?
Senator Omidvar: Yea.
Mr. Charbonneau: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Charbonneau: The Honourable Senator Ravalia?
Senator Ravalia: Yea.
Mr. Charbonneau: The Honourable Senator Seidman?
Senator Seidman: Abstain.
Mr. Charbonneau: The Honourable Senator Stewart Olsen?
Senator Stewart Olsen: Abstain.
Mr. Charbonneau: Yeas: 9; nays: 1; abstentions: 2.
[English]
The Chair: The motion is carried.
I believe we have no more amendments to clause 10, but I want to double-check.
Is clause 10, as amended, carried?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 24 carry?
Some Hon. Senators: Agreed.
The Chair: I think there is an amendment to clause 24. The amendment from Senator Pate to clause 4 is numbered KP-24.19.
Senator Pate, do you wish to move that amendment?
Senator Pate: I move:
That Bill C-83 be amended in clause 24, on page 19, by replacing lines 1 to 11 with the following:
“24 Section 81 of the Act is replaced by the following:
81 (1) The Minister or person authorized by the Minister may for the purposes of providing correctional services, enter into agreement with
(a) an Indigenous organization;
(b) an Indigenous governing body;
(c) a community group that focuses on the needs of a disadvantaged or minority population;
(d) a community organization that serves the disadvantaged or minority population; or
(e) any other entity that will provide community-based support services including to other specific populations.
(2) For the purposes of paragraphs (1)(c) and (d), a disadvantaged or minority population includes any population that is marginalized on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, or disability.
(3) An agreement under subsection (1) may provide for payment by the Minister or a person authorized by the Minister in respect to the services provided by an entity described in paragraphs (1)(a) to (e).
(4) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer a person confined in a penitentiary to an entity described in paragraphs (a) to (e) with the consent of that entity and the person serving a sentence.
(5)The Commissioner is to take all reasonable steps to
(a) identify entities described in paragraphs 1(a) to (e) for the purpose of entering into agreements; and
(b) seek to transfer persons confined in a penitentiary to an entity with which an agreement exists, particularly in cases in which the person is a member of a disadvantaged or minority population and that the entity seeks to serve.
(6) No person confined in a penitentiary is to be denied a transfer to an entity with which an agreement exists if the person and the entity consent unless the transfer is, as determined by a Court of competent jurisdiction, not to be in the interests of justice.”.
This amendment encourages the use of existing provisions to transfer individuals right now to Indigenous communities to serve their sentences. It’s Section 81 of the Corrections and Conditional Release Act.
It requires Corrections to look at all reasonable steps. It is taking what we have heard in a variety of contexts — and Senator Munson, Senator Omidvar and I have heard it also at the Human Rights Committee — to look at a provision that was first put in place for the express purpose of reducing the number of Indigenous prisoners and now to encourage it to be used for other groups that are growing within the population. So that’s the purpose of the proposed amendment.
The Chair: Senator Klyne, you had a comment?
Senator Klyne: Yes. All this comes under the context and the specific purpose of Indigenous offenders, number one. And within that body, where we should be diligently working at making sure that protects the rights of the Indigenous offenders and in the spirit and intent of that part of the bill and the act, to then throw a cast-wide net within that context is out of place. Much of this is referred to in clause 2(g), page 1. The act is replaced by:
(g) correctional policies, programs and practices respect gender, ethnic culture, religious and linguistic differences, sexual orientation, gender identity and expression, and are responsive to the special needs of women, Indigenous persons, visible minorities, persons requiring mental health care and other groups;
Within that context those needs are being serviced, but to put that into the specifics of the Indigenous offenders, I think, is taking the purpose out of scope here. I think that the rights that are granted within there, including Gladue is — from my perspective, as an Indigenous person, I take offence to that. But the other thing is, if I may, the last point, number 6, this suggests or implies that all of the people cited in (c) (d) or (e) may at some point have an entity with an agreement, and that no person confined in a penitentiary is to be defined or transferred to an entity with which an agreement exists if the person and the entity consent unless the transfer is as determined by a court of competent jurisdiction not to be in the interests of justice.
That’s already there for Indigenous people. I don’t know of any entities that exist yet for all those cited in (c), (d) or (e).
The Chair: Thank you.
Senator Kutcher and then Senator Omidvar.
Senator Kutcher: Maybe I just don’t understand the legal terms. I don’t know what the word “entity” means. Does it mean specifically an organization of some kind? Is there assurance that organization would have the competency or capacity to be able to accept and provide appropriate and necessary services that support the prisoner? I just don’t understand.
Senator Omidvar: I would like to hear the answer to that.
The Chair: My apologies.
Senator Pate.
Senator Pate: “Entity” is used because the legislative intent of the Corrections and Conditional Release Act, when you go back to Hansard and look at the discussions that were happening, was, as Senator Klyne has indicated, to increase the releasing opportunities, including to serve sentences in the community for Indigenous people. The subsection, though, that already allows that to be used for non-Indigenous persons is there.
“Entity” was the term used — I’m happy if there is a suggestion of some other — to show that it actually could be a group of individuals because one of the issues raised is that there are sometimes groups like Native Friendship Centres or groups in communities — something like we saw with Syrian refugees — where there may be a group that comes together to provide support. So if there is a better term than “entity,” I would not consider it an unfriendly amendment to suggest what might be. Of course it would have to have the capacity to provide the services.
Senator Kutcher: I don’t know how to put in here an expectation that whatever the entity is actually having the competencies and capacity to provide the services necessary, but I think that would be important, right?
Senator Pate: Yes.
The Chair: Did you want to comment on that?
Senator Pate: I don’t disagree. I think it could be done in regulations fairly easily. Certainly the policy right now is actually more restrictive than the legislation. So if it’s challenged in court, it probably would be required to open up more broadly than it is.
The Chair: Senator Omidvar, did you want to comment?
Senator Omidvar: I want to comment based on Senator Klyne’s discomfort with this amendment. As we all know, the second-largest community of people in incarceration are people of African-Canadian descent. I think there is so much wisdom in the Indigenous communities and the way they structure themselves, that says in this context, it is time for us to learn from them, and the extension, Senator Klyne, of this amendment to include others, in particular the Black community, is I think a very welcoming opening. I congratulate you, Senator Pate, for that.
The Chair: Thank you, Senator Omidvar.
Do we have other comments or questions? Are we ready to proceed?
Senator Klyne: Senator Kutcher, were you asking about “entity” with regards to Indigenous people or the other groups?
Senator Kutcher: I didn’t know what the word meant.
Senator Klyne: Because there are agreements with Indigenous organizations.
Senator Kutcher: I think for clarification —
Senator Klyne: Maybe the officials could comment on which agreements you already have in place with the Indigenous organizations?
Mr. Maltby: Currently, with regard to agreements under section 81, we actually have five agreements currently in place. Well, two are with the National Native Council Service of Alberta, but one runs a women’s centre called Buffalo Sage, the other called Stan Daniels. We also have one in Quebec, with Waseskun. We have one under Ochichakkosipi. I’m drawing a blank on the fifth one. Sorry, you’re reminding me. There is a fifth one there. I can get the name for you specifically. It will come to me, I’m sure.
The expectation with regard to healing lodges, if I may, is truly about custodial support. While they do provide community supports as well, what we see sort of under a section 84 sort of plan, it really is about custodial support. There is an expectation around as you said some of the needs for ensuring that they have the capacity and the ability to actually provide those services, which is definitely a partnership that we build with Indigenous communities and organizations, but it takes some time and some doing for sure.
The Chair: Thank you.
Senator Pate, did you want to add something?
Senator Pate: No, that’s fine.
The Chair: Perfect.
It is moved by the Honourable Senator Pate that Bill C-83 —
Senator Pate: Dispense.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 24, as amended, carry?
Hon. Senators: Yes.
The Chair: Shall clauses 25 to 30 carry?
There is a new amendment, I believe.
Senator Pate: I move:
That Bill C-83 be amended in clause 25, on page 20, by replacing lines 3 to 10 with the following:
“84 (1) If a person confined in a penitentiary requests the support, on release, of an entity referred to in subsection (2), the Service shall provide that entity with an opportunity to propose a plan for the person’s release and integration into the community in which the person is to be released.
(2) The following are the relevant entities for the purposes of subsection (1):
(a) the community’s Indigenous governing body, if applicable;
(b) an Indigenous organization that is active in the community;
(c) a community group that focuses on the needs of a disadvantaged or minority population;
(d) a community organization that serves a disadvantaged or minority population; and
(e) any other entity that provides support services in the community, including to other specific populations.
(3) For the purposes of subsection (2), a disadvantaged or minority population includes any population that is marginalized on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, or disability.
(4) The Service shall:
(a) take all reasonable measures to inform confined persons about the entities described in paragraphs 2(a) to (e); and
(b) give every entity that has proposed a plan referred to in subsection (1) adequate notice of the person’s parole review or their statutory release date, as the case may be.
(5) If the Parole Board of Canada makes any decision that is inconsistent with a plan that has been proposed by an entity for the release and integration of a person into a community, it shall provide written reasons for its decision.”.
This is similar to the last one, with the addition of the parole board so that an individual would know what the reasons are.
The Chair: Any questions or comments? If you are looking for the amendment, it is in the new package. Are we ready to proceed?
It is moved by the Honourable Senator Pate that Bill C-83 be amended in clause —
Senator Pate: Dispense.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
Senator Seidman: On division.
The Chair: Carried, on division.
Shall clause 25 carry, as amended?
Hon. Senators: Agreed.
The Chair: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Senator Pate.
Senator Pate: Thank you.
I move:
That Bill C-83 be amended in clause 29, on page 21, by replacing lines 19 and 20 with the following:
“decisions relating to placement, transfer, administrative segregation or any other separation from the mainstream of general population of a penitentiary and disciplinary mat -”.
Actually, I’ll withdraw this. It was a consequential amendment to Senator Forest-Niesing. So is the next one. I’ll just withdraw it.
The Chair: We need to consent to withdraw the amendment. Is it agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: With regard to clause 31, I believe Senator Pate has withdrawn it because it was consequential to last week’s amendment, if I’m correct.
Shall clauses 32 to 35 carry?
Hon. Senators: Agreed.
The Chair: Senator Pate, do we have a new clause coming?
Senator Pate: Yes. Thank you, Madam Chair.
I move:
That Bill C-83 be amended, on page 23, by adding the following after line 34:
“35.1 The Act is amended by adding the following after section 198:
Part III.1
Unfairness in the Administration of a Sentence
198.1 (1) An incarcerated person may apply to the court that imposed the sentence being served for an order reducing the period of their incarceration or parole ineligibility as the Court considers appropriate and just in the circumstances if, in the opinion of the Court, there was unfairness in the administration of a sentence.
(2) In subsection (1), unfairness in the administration of a sentence includes any decision, recommendation, act or omission of the Commissioner or any person under the control and management of, or performing services for or on behalf of, the Commissioner that affected the person and that was
(a) contrary to law or an established policy;
(b) unreasonable, unjust, oppressive or improperly discriminatory;
(c) based wholly or partly on a mistake of law or fact; or
(d) an abuse of discretionary power.
(3) An application under subsection (1) must be made
(a) no later than 60 days after
(i) the events giving rise to the alleged unfairness in the administration of the sentence occurred,
(ii) the Service has provided to the incarcerated person any incident report or other document related to the events giving rise to the alleged unfairness in the administration of a sentence, or
(iii) the person is informed of the conclusions and recommendations of the Correctional Investigator under section 178 in relation to these events; or
(b) within any other period of time that the Court may establish, at its discretion and at any time, if that period is greater than the period referred to in paragraph (a).
(4) Nothing in this section abrogates or derogates from any other right or remedy that may be available to an incarcerated person, including a right or remedy under this Act.”.
This was one of the recommendations made by Louise Arbour following the incidents in the extended period of segregation of women at the Prison for Women as one of the ways to correct the use and abuse of power within Correctional Service Canada where the way that the sentence is administered amounts to an unlawful sanction because it was not what the judge intended when they provided the sentence.
Senator Klyne: Just one quick observation, and then I would like to ask the witnesses a question on this.
This seems to be outside the scope of the legislation, because it specifically addresses the sentencing of an offender and not the placement within an SIU. It makes, probably, for separate study of observations. I don’t suggest that doesn’t merit some study or observations, but I think it’s out of the scope of the legislation here.
My question to the witnesses would be: Does this amendment have any effect on the Bill C-83 legislation as presented to the committee?
Ms. Arnet Connidis: No, this doesn’t affect the legislation, but you’re correct, it would be more appropriate in the Criminal Code, which deals with sentencing.
Senator Klyne: Thank you.
Senator Pate: It may very well. The recommendation was made by Louise Arbour consistent with the objective that the minister has advised this committee and witness, that, in fact, part of the objective is to change the culture and change the use of segregation, the use of punitive measures with individuals in prison. So, it’s consistent with the scope of the legislation overall.
The Chair: Thank you. Are there more comments or questions? Are we ready to proceed with this amendment?
It is moved by the Honourable Senator Pate that Bill C-83 be amended by adding clause 35.1 — may I dispense?
Is it your pleasure, honourable senators, to adopt the motion in amendment? Agreed? Yes, no?
An Hon. Senator: No.
The Chair: Do we want a recorded vote?
Those in favour will please say “yea”?
Some Hon. Senators: Yea.
The Chair: Those opposed will please say “nay”?
An Hon. Senator: Nay.
The Chair: I believe the “yeas” have it.
Senator Munson: I’m sorry, but that’s a little confusing. I think there should be a vote. This is a tough one.
The Chair: Agreed. We will proceed with a roll-call vote. The clerk will call the members’ names, as before, beginning with the chair and then going in alphabetical order. Senators should indicate whether they are for, against or abstain, and the clerk will announce the result of the vote.
[Translation]
Mr. Charbonneau: The Honourable Senator Petitclerc?
Senator Petitclerc: Abstain.
Mr. Charbonneau: The Honourable Senator M. Deacon?
Senator M. Deacon: Yea.
Mr. Charbonneau: The Honourable Senator Eaton?
Senator Eaton: Abstain.
Mr. Charbonneau: The Honourable Senator Forest-Niesing?
Senator Forest-Niesing: Abstain.
Mr. Charbonneau: The Honourable Senator Mégie?
Senator Mégie: Yea.
Mr. Charbonneau: The Honourable Senator Munson?
Senator Munson: Abstain.
Mr. Charbonneau: The Honourable Senator Oh?
Senator Oh: Abstain.
Mr. Charbonneau: The Honourable Senator Omidvar?
Senator Omidvar: Nay.
Mr. Charbonneau: The Honourable Senator Pate?
Senator Pate: Yea.
Mr. Charbonneau: The Honourable Senator Poirier?
Senator Poirier: Abstain.
Mr. Charbonneau: The Honourable Senator Ravalia?
Senator Ravalia: Abstain.
Mr. Charbonneau: The Honourable Senator Seidman?
Senator Seidman: Abstain.
Mr. Charbonneau: Yeas: 3; nays: 1; abstentions: 8.
[English]
The Chair: The motion is carried.
Shall the new clause 35.1 carry?
Mr. Charbonneau: We did that.
The Chair: Shall clause 36 carry?
We have two amendments. They are from the old package, I believe, KP-36.1-23(a) and (b). Senator Pate?
Senator Pate: Thank you, Madam Chair.
I move:
That Bill C-83 be amended on page 23, by adding the following after line 35:
“Criminal Code
36.1: subsection 720(2) of the Criminal Code is replaced by the following:
(2) The court may, with the consent of the Attorney General and a convicted individual, and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the individual to attend
(a) a recognized treatment program, including culturally specific programs that are under the supervision of the court, such as an addiction treatment program or other educational or counselling program; or
(b) a community-based program aimed at remedying any harm caused or at rehabilitation or reintegration that the court considers appropriate.
(3) If, in the opinion of the court, the individual has successfully completed a program under subsection (2), the court, despite any provision of law establishing the offence for which the individual was found guilty, is not required to impose any minimum punishment, including any prohibition order, and may direct a discharge under section 730.”.
This is basically to bring into compliance for individuals what was introduced by the government around deferred prosecution agreements for corporations, and to allow for individuals to have access as a way to not only minimize the use of segregation, but also the use of incarceration.
The Chair: Thank you.
Senator Seidman: I have a point of order more than anything.
We have here an amendment to the Criminal Code. If you look at Senate Procedure in Practice from 2015, on page 142, you’ll notice number 11:
As a general rule, an amendment is inadmissible if it proposes to amend an act not being amended by the bill under consideration. Furthermore, according to the authorities, only those sections of the parent act that are being amended by the bill may be subject to amendment by the committee.
So, what I’m suggesting to us here is that this amendment is amending an act that this bill is not contained within. Actually, there are two amendments, but we’re dealing with 36.1-23(a), but the other one does the same as well, in 36.1-23(b).
The Chair: Are there any comments on the point of order raised by Senator Seidman?
As you know, if a senator has issues about whether an amendment is acceptable, they can raise a point of order and it is your right to give arguments, whether you want to speak to it, and then the chair will make a ruling to determine whether the amendment is acceptable.
Senator Pate, did you want to speak on that?
Senator Pate: I want to recognize that, usually, this kind of corrections legislation also has consequential amendments to the Criminal Code, but the point is well taken that is not the point of this. I would be prepared to withdraw the next two amendments on that basis if that’s the will of the committee.
The Chair: Senator Pate, are you withdrawing both amendments? That’s what I understood.
Senator Pate: Yes.
The Chair: And we do have consent to withdraw the amendment that was moved?
Shall clauses 37 to 39 carry?
Hon. Senators: Agreed.
Senator Seidman: On division.
The Chair: Shall clause 40 carry?
This amendment is in the new package. It is the one named KP-40.24. Senator Pate?
Senator Pate: Thank you. My apologies.
I move:
That Bill C-83 be amended in clause 40.1,
(a) on page 24 by replacing lines 25 to 31 with the following:
“40.1 (1) At the start of the second year after the day on which this section comes into force, and at the start of the fifth year after the day on which this section comes into force, a comprehensive review of the provisions enacted by this act must be undertaken by a committee of the Senate and a committee of the House of Commons that may be designated or established for that purpose.
(2) The review referred to in subsection (1) must include a review of the progress that has been made in eliminating practices that involve separating an incarcerated person from the general population of a penitentiary.
(3) A committee referred to in subsection (1) must, within one year after review is undertaken under that subsection, submit a report to the House of Parliament of which it is a committee, including a statement setting out any changes to the provisions that the committee recommends for the purpose of ensuring the elimination of practices that involve separating an incarcerated person from the general population of a penitentiary.”; and
It continues on.
The purpose of this is to do what a number of folks have recommended: that what is being implemented, whatever phase it takes, is monitored and that the Senate and the House of Commons monitor that process. It’s consistent with some of the recommendations that have been made, not just by witnesses, but that have been looked at by other committees in the House of Commons as well as here, but had not been made a formal part of the legislation. That’s the purpose of the amendment.
Senator Munson: I think what you’re saying is important. Just in terms of wording, this is very small: I have never heard of “House of Parliament” before. Do you mean Parliament?
Senator Pate: Yes. Sorry. I meant the Senate and the House of Commons.
Senator Munson: To both the House of Commons and the Senate of Canada. I don’t know what a “House of Parliament” is. That’s all.
Senator Pate: I would be amendable to that amendment.
Senator Munson: To both houses?
The Chair: Is it agreed that this change be made to Senator Pate’s amendment?
Hon. Senators: Agreed.
The Chair: Are there any comments or questions on the amendment?
It is moved by the Honourable Senator Pate that Bill C-83 —
Some Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 40, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 41 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Is it agreed that the law clerk and parliamentary counsel be authorized to make technical, numerical, typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Munson: When is the vote?
The Chair: There will be a vote in 15 minutes.
Copies of the observations are being distributed in both official languages.
Senator Deacon.
Senator M. Deacon: It’s a bit of teamwork. I would like to put forward two observations. You will have received them earlier by email, and I think you have them all by hard copy now in both languages. I will read them. Once I’m done, I’m going to let Senator Kutcher take it from there.
Bill C-83 around the area of training. The committee is concerned that the bill does not prescribe mental health training programs for correctional staff, nor does it set a standard of competencies that are expected of correctional staff in order to identify and support those incarcerated with a mental illness. This is important to support the rehabilitation of those incarcerated.
The second statement is on SIU programming. The committee is concerned that the bill does not provide for details of therapeutic or rehabilitative programming for those incarcerated in a SIU nor the selection criteria and the evaluation of such programming. This is an important component of understanding and improving the mental health of those placed in SIU.
Senator Kutcher, if you would like to make any collaborative comments that would be appreciated at this point in time.
Senator Kutcher: These are both issues that arose during the witness testimony that we heard, substantive concerns about the quality or the kind of training provided to correctional staff. We actually heard from correctional officers about the inadequacies of that training. We know that coming to a classroom and listening to someone talk at you is not adequate training when it comes to identifying and supporting people with mental disorders. It must also include clearly demonstrated improvement in knowledge, it has to include demonstrated decrease in stigma and it has to actually include competencies that the people can actually support and interact with people who have a mental illness. So substantive concerns that need to address that.
The other thing is it’s really important in a SIU to have therapeutic or rehabilitative programming directed to the needs of the person incarcerated and that the programming should not stop just because someone is incarcerated. Those are two observations related to that.
Senator Forest-Niesing: I am totally in support of the observation. The only concern I have is that I’m a little confused with the wording. In the English version, the third sentence reads:
In order to identify and support of those incarcerated who have a mental illness.
Senator Kutcher: That’s my convoluted grammar. My apologies in advance to my inability to do English grammar or spell. Can I make a modification to that?
Senator Forest-Niesing: Sure.
Senator Kutcher: That would read:
Nor does it set a standard of competencies that are expected of correctional staff, in order to assist them to identify and support those incarcerated.
Apologies for my deficiencies in English let alone in French.
The Chair: Do we agree with Senator Deacon’s observations?
Hon. Senators: Agreed.
The Chair: I believe Senator Seidman has an observation.
Senator Seidman: It’s sort of a preamble to our report, because with legislation we just have to submit a report to the chamber. I think, based on everything that we’ve discussed, especially today, I thought we might say something at the beginning, a preamble to observations saying the committee has, to the best of its ability, examined the unfamiliar subject matter of Bill C-83 and has worked diligently under challenging time constraints. The committee requests that the constitutional questions that arose during the study of Bill C-83 be more adequately addressed by the chamber at third reading.
The Chair: Just to be clear, Senator Seidman, this is an observation that you want the analysts to add to the report?
Senator Seidman: Exactly.
The Chair: That we will be introduced in the chamber, just to be clear.
Senator Seidman: Exactly.
The Chair: Are there comments? Is it agreed?
Hon. Senators: Agreed.
The Chair: Senator Pate, I believe you also have an observation. We are having technical challenges actually printing it out, so I wonder if you could read it and we will carefully listen.
Senator Pate: I have two. The first is:
The Committee recommends, in light of testimony from witnesses including the Correctional Investigator and the Canadian Human Rights Commission, that in furtherance of Bill C-83’s provisions requiring the application of least restrictive measures and consideration of Indigenous history in assessing security classification, the Correctional Service of Canada (CSC) take immediate steps to address overclassification of women, in particular by implementing a recommendation previously made in CSC research, successive reports of the Correctional Investigator and consistent with the philosophical underpinnings of the federal prisons for women that every woman assigned to a federal penitentiary only be classified as higher security classifications if necessary for reasons of public safety.
The Chair: Do we have comments?
Senator Seidman: Thank you, Senator Pate. My initial reaction is that it’s not an observation. This is a very complex statement that would take quite a bit of time for us to parse and truly understand. I don’t see how the committee could possibly submit that as an observation from our entire committee.
The Chair: Any other comments? Is there agreement on this observation? I hear a “no.” On division?
Senator Pate: That’s fine.
Senator Seidman: If it’s on division, then the observation goes forward and I really think the committee needs to be very careful about submitting observations that destroy our credibility. If we don’t understand the complexity of this observation and every implication of it, it’s like an amendment to a piece of legislation. Observations are merely that. They’re fairly light, directive points that the committee would like to highlight, but to me this sounds like a very serious, complex directive. I’m certainly not prepared to sign my name from this committee as an observation of that complexity.
I think we need to have a vote on it. Unless people are saying right off the bat now that they can’t support that kind of observation, we are going to have to go to a vote.
The Chair: No more comments? I need to have some sort of clear indication, or we can proceed with a roll-call vote.
Is it agreed that we proceed with the observation from Senator Pate?
Let’s proceed with a roll call. We will call members’ names, beginning with the chair, going in alphabetical order. Please indicate whether you vote for, against or you abstain.
[Translation]
Mr. Charbonneau: The Honourable Senator Petitclerc?
Senator Petitclerc: Abstain.
Mr. Charbonneau: The Honourable Senator M. Deacon?
Senator M. Deacon: 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 Mégie?
Senator Mégie: Abstain.
Mr. Charbonneau: The Honourable Senator Munson?
Senator Munson: Abstain.
Mr. Charbonneau: The Honourable Senator Oh?
Senator Oh: 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: 3; abstentions: 8.
[English]
The Chair: The motion is defeated.
I believe you have another observation.
The bells are ringing. We are voting in the chamber in 15 minutes, I believe.
Do you want to try and move it?
Senator Pate: I’m not going to move the third one because Senator Seidman’s suggestion for a preamble addresses that.
In terms of the observation I have, it is that:
The Committee notes testimony of witnesses that incarceration is too often a default response within the criminal justice system to those with mental health issues. The Committee recommends that the government undertake reforms to criminal law sentencing to require judges to consider all alternatives prior to imposing a prison sentence, including a mandatory minimum prison sentence, and provide reasons in cases where such alternatives were not used.
The Committee likewise recommends that a provision similar to section 320.23 of the Criminal Code regarding impaired driving and permitting a delay of sentencing to allow for treatment, as well as potential exemption to mandatory sentencing, be extended to all criminal law offences.
Senator Seidman: I have a very similar reaction to this, Senator Pate, as I had to the previous one. To me, observations are not recommendations. And these are very specific recommendations to sections of the bill. It’s not my understanding that an observation should be worded this way. I would just have to put forward my same “no” to this. I’m sorry.
The Chair: Unless there is something very different that someone wants to add, I will call a vote so that we can go to the chamber to vote.
Is it agreed that the observation of Senator Pate be adopted?
Some Hon. Senators: No.
The Chair: Defeated.
Is it agreed to adopt the observations and give steering the authority to make necessary adjustments as needed?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: With that, thank you everybody for your hard work, and the officials and the clerks.
(The committee adjourned.)