THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, December 6, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:37 p.m. [ET] to continue their study of Bill S-230, An Act to amend the Corrections and Conditional Release Act.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: My name is Brent Cotter, and I am a senator from Saskatchewan and chair of the committee. I would like to invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
Senator Busson: Welcome. My name is Bev Busson. I am a senator from British Columbia.
Senator Klyne: Good afternoon and welcome. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: Senator P.J. Prosper, Nova Scotia, land of the Mi’kmaq people.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement, from Ontario.
Senator Dupuis: Renée Dupuis, senatorial division of The Laurentides, Quebec.
[English]
The Chair: Thank you, colleagues.
Honourable senators, we’re meeting to continue our study of Bill S-230, An Act to amend the Corrections and Conditional Release Act. We have two panels today. The first panel is made up of three speakers, and I’d like to welcome, firstly, from the Canadian Association of Elizabeth Fry Societies, Nyki Kish, Associate Executive Director. Ms. Kish is joining us by video conference. Welcome, Ms. Kish. From the John Howard Society of Canada, Catherine Latimer, Executive Director, and Ms. Latimer joins us in person. Welcome, Ms. Latimer. From the Criminal Lawyers’ Association, Kate Mitchell, lawyer and doctoral candidate at the University of Toronto, and Ms. Mitchell is joining us by video conference. Welcome, Ms. Mitchell.
Each of you will be invited to address us for approximately five minutes. Following that, we will have questions and conversations with you initiated by senators.
Let’s start in the order that I’ve just described. Ms. Kish, would you like to go first? The floor is yours.
Nyki Kish, Associate Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you, honourable senators, for inviting me here today. Since the early 1980s, the Canadian Association of Elizabeth Fry Societies, or CAEFS, has maintained a strong presence in Canada’s penitentiaries designated for women. We conduct monthly visits inside each one and produce detailed records which document prison conditions and demonstrate widespread contradictions between the written rules regulating this system and its realities.
Canada’s prison system is indeed intensely regulated — but without effective accountability structures. The result is evident in the outcomes: a population hovering under 13,000 people federally incarcerated at any given time, but which requires approximately $2.5 billion in direct annual costs to be maintained and which produces a host of known adverse impacts.
We ask what the purpose is of laws that are not subject to oversight and redress. The prison system itself exists to ensure that the rule of law is upheld, yet ongoing calls from the Office of the Correctional Investigator, from CAEFS, from many of my colleagues before you, and from every major commission and inquiry which looked at this system have concluded that it needs many changes, such as those provided in this bill, including pathways from prison for the many people who do not need to be there, moving them into systems capable of responding to their needs.
The question ought not to be, “should we pass this bill,” but “why have we not done so sooner?” If the system were not so overwhelmed responding to poverty, addiction and mental health, it could more meaningfully respond to the very small percentage of people who pose an ongoing risk.
Importantly, this bill pronounces existing legislative priorities. Section 4(c.2) of the Corrections and Conditional Release Act requires that every decision made by the Correctional Service of Canada is done with a view to alternatives to custody. In its very limited uptake, we see success. I nod to the transfers of federally sentenced people into community-based addiction treatment facilities; this is what works, this is what returns people to the community in safe ways for everyone.
Unfortunately, most decisions are not made with this view. Most decisions are overly restrictive, and much of what happens in Canadian penitentiaries should shock the public. This is why allowing persons to apply for a remedy, if there has been a demonstrated unfairness in the administration of their sentence, constitutes a much-needed tool in our justice system.
Our institutions need to demonstrate the fairness and accountability they expect of individuals. This provision will increase the public’s faith in and trust of the justice system, and reduce the reactionary costliness of future lawsuits. I point to the $28 million recently awarded to individuals who have experienced segregation in Canada.
We applaud the bill’s oversight mechanism in relation to segregation. Structured Intervention Unit implementation, or SIU’s, as a member rightly noted, was “well-intended but poorly executed.”
Well-intended but poorly executed is the modus operandi of the prison system. All is well on paper, but flawed in practice.
On paper, SIUs respect the Mandela rules. In practice, they are failing. On paper, people get out of their cell confinement and get meaningful human contact up to four hours per day. In practice, people refuse; they are depressed because it’s not meaningful to spend those hours on camera only interacting with staff in positions of power over them who are writing down and scrutinizing everything they say and do. And it is not meaningful to sit alone in a small cold yard with only concrete and chain-link fences to look at.
There’s an individual currently in SIU in a prison designated for women, who, as of today, has been there for 49 days. We know that segregation for any length of time is traumatizing, but there are emergent patterns of “long stayers” in the SIUs, and among these long stayers are predominantly Indigenous women and gender-diverse people and those with significant mental health needs upon admission. As the independent advisory panel finds, the SIUs are producing mental illness. These patterns are just the same as they were in the previous administrative segregation and management protocol regimes.
This individual is awaiting transfer to a different institution, which will not occur for at least another week, and we have no indication whether she will be readmitted into a new SIU when she arrives. Unlike the men’s sector, all of the prisons designated for women, except the healing lodge, have SIUs. This has resulted in placements becoming a relatively easy population management strategy with dangerous implications. In prisons for women, at least, SIUs are used primarily as a mental health response.
We should not accept conditions that harm people and release individuals in worse shape than when they arrived. It’s due time we transfer health needs to health systems.
Thank you, and I look forward to any questions you may have.
The Chair: Could I invite Ms. Latimer to address us now.
Catherine Latimer, Executive Director, John Howard Society of Canada: Thank you, senators, for the kind invitation to hear the perspective of the John Howard Society of Canada on Bill S-230.
The John Howard Society has a long-standing interest in curbing abuse of solitary confinement, and we are very interested in and supportive of the direction of Bill S-230.
We think it’s extremely important to define what we mean by solitary confinement, given that federal prisoners are being subjected to what the UN defines as solitary confinement both within and outside of the structured intervention units. We agree that an accurate statutory definition is needed in order to provide safeguards to all federal prisoners subjected to solitary confinement.
Rather than the definition proposed in Bill S-230 that extends the definition of structured intervention unit to some cases of isolated confinement, the John Howard Society would prefer a definition of solitary confinement consistent with the UN definition, which is 22 hours in a cell without meaningful human contact per day.
Whether that is occurring within the structured intervention units or elsewhere in the prison, we would also like to see prolonged solitary confinement, which is 15 consecutive days of solitary confinement, or more, expressly prohibited, as it is in the Mandela Rules.
We think judicial oversight is extremely important in solitary confinement. As the annual report of the Structured Intervention Unit Implementation Advisory Panel revealed, the independent external decision makers that were intended to ensure procedural fairness in placement and management of solitary confinement in structured intervention units are inadequate. A greater reliance on judicial oversight in terms of placement and management of those in solitary confinement would provide an important safeguard against abuse.
The John Howard Society also believes that the responsibility for both physical and mental health care of prisoners should rest with health care authorities and not with correctional ones. We agree that those with disabling mental illnesses should be transferred to psychiatric hospitals. In particular, we support the proposed amendment in clause 6(1). The deterioration of the mental health of those placed in isolated confinement is well known and should be taken seriously. The statutory requirement that a mental health assessment must be done within 24 hours is bolstered by the proposal that a person placed in isolated confinement should be transferred to a hospital, if the correctional authority is unable to do the assessment within the time frame.
Disadvantaged, Indigenous and marginalized populations — we agree that tailored, culturally relevant approaches are important for Indigenous people as well as for others who have suffered disadvantage. The definition, however, might not be inclusive.
Many prisoners have experienced the disadvantages of abuse, foster care, poverty, violence and other childhood traumas and have not experienced discrimination as seems to be required by the section. It would be regrettable if people in equal positions of need for community programs were denied access to them. Is it possible to have a more inclusive definition of “disadvantaged” in order to ensure that supportive community-based programs are open to those who would benefit from them?
The John Howard Society fully supports clause 11 of the bill, which proposes an application to the courts for a reduction of the sentence or a period of parole ineligibility if the sentence has been unfairly administered.
In conclusion, Minister Goodale’s prediction that Bill C-83 would end solitary confinement in the federal prison system was, indeed, overly optimistic. Solitary confinement is occurring both in the structured intervention units and in many other places in the prisons. I think critics are generally concerned that this consisted mostly of a name change, and that there has been no substantive progress over what we had in terms of administrative segregation.
While Bill S-230 will address some of the abuses, the promised comprehensive parliamentary review that was due to begin at the start of the fifth year after Bill C-83 came into force is vitally important. The start of the fifth year was in June 2023. The John Howard Society of Canada urges this committee to begin the review of Bill C-83 and to produce the required report setting out recommended reforms.
I’m happy to answer any questions that you might have. Thank you.
The Chair: Thank you, Ms. Latimer.
Ms. Mitchell, the floor is yours.
Kate Mitchell, Lawyer, Criminal Lawyers’ Association: Good afternoon and thank you for allowing me to be here today. I’m here today on behalf of the Criminal Lawyers’ Association, or CLA, an organization of lawyers committed to providing a voice for criminal justice and civil liberties. We strongly support Bill S-230, which provides vital safeguards for the people in the federal correctional system, and we endorse the submissions of the Canadian Prison Law Association.
In the 1996 report of the Commission of inquiry into certain events at the Prison for Women in Kingston, Justice Arbour described a breakdown of the rule of law in corrections. Unfortunately, not much has changed, and the annual reports of the Office of the Correctional Investigator catalogue some of the many abuses and illegality that persist in the federal system. Serious reform is needed, and Bill S-230 is an important first step.
Segregation is deeply damaging and still overused in the correctional system, and the CLA supports extending the safeguards and protections offered to prisoners in structured intervention units. In fact, we recommend extending these further to cover any inmate held in restrictive conditions for 22 to 24 hours per day and who doesn’t receive at least two hours of meaningful social interaction.
Given the severe consequences of segregation, we also support greater judicial oversight. Independent external decision makers have made some difference, but there are still very serious issues with extended segregation placements and disparities in who is being segregated. Judicial oversight is absolutely vital to correct wrongful placements in segregation, but even just the availability of judicial oversight plays an important role in promoting better decision making and the rule of law.
We also support Bill S-230’s efforts to create more appropriate alternatives for people with mental health conditions, but we do recommend expanding the section to include community-based mental health services. Moreover, we support expanding correctional services for prisoners who are from disadvantaged or minority populations. These are our populations that are overrepresented in prison, who too often experience very serious barriers in the current system and have distinct needs that our system is not well suited to address.
Finally, the CLA strongly supports section 11, which finally implements Justice Arbour’s recommendation of allowing sentence reductions for unfairness in the administration of a sentence. To protect rights, there has to be a meaningful remedy. In the criminal law context, we generally have such remedies, evidence gathered in a search that violates section 8 of the Charter can be excluded under section 24(2). Stays can be granted to address certain rights violations. These are certainly drastic remedies, but our highest court has held that such remedies are absolutely essential to follow through on our commitment to upholding the Charter. For rights abuses in pretrial detention, courts have relatively effective remedies, sentence reductions and even stays, but once convicted, prisoners generally don’t have access to effective remedies. Habeas corpus is not a panacea. The court has essentially turned it into a framework to get faster judicial review of decisions that impact prisoners residual liberty interests.
To be clear, this is a narrowly defined category — for example, segregation placements and transfers to higher security — and the remedy is ordering prisoners released from an unlawful form of detention. You can’t challenge any and all issues this way. The framework has its flaws, and even when a prisoner is challenging a deprivation of liberty, it can often take so long to get there that the issue is moot and there’s not a lot the courts can do to correct the wrong.
For issues that don’t fall under a deprivation of liberty, the other option is a Charter application, but not all issues rise to a Charter breach, or a judicial review, which is slow and offers some limited remedies. Generally speaking, if the issue isn’t ongoing at the time of the hearing, there aren’t many effective remedies that are available. Maybe a declaration can be made but those aren’t sufficient to address the serious and grievous wrongs that are committed against prisoners often. Sentence reductions are absolutely essential to finally vindicate prisoners’ rights and ensure that officials take prisoners’ rights seriously.
To the extent that any coordinating amendments need to be done to allow this remedy, these should be done. It certainly may take time and effort, but upholding the rights of prisoners necessitates having access to effective remedies.
Thank you. I look forward to your questions.
The Chair: Thank you, Ms. Mitchell.
We will now have senators engage in questions. Senator Pate, you’re the sponsor of the bill, and I’m going to invite you to go last and mop up if needed. You know how we are at this committee.
Senator Batters: Thanks to all of you for being here. My first question is for Ms. Kish from the Canadian Elizabeth Fry Societies. What I would like to get at is, what is your impression is the suitability of the 48-hour limit in the context of extended stays.
Considering that data indicates that between November 2019 and November 2021, about a quarter of the inmates in structured intervention units, or SIUs, were detained for over two months, and 20% stayed in the structured intervention unit for between one and five days, I’m wondering if you think the 48-hour limit set by Bill S-230 for a stay in and is realistic and sufficient to meet the needs of inmates and the management requirements for those SIUs.
Ms. Kish: Thank you for your excellent question. I do think it’s an important first step. Certainly, right now, restrictive conditions and segregation in all its forms are primarily used as a population management strategy. They’re not resolving the problems they intend to, so yes, I do think it is reasonable. I think that it will push the system to innovate and find different and more meaningful responses, especially, if this bill is to pass, in its capacity for people with identified mental health conditions to be moved out of such systems and into health care systems.
Senator Batters: Ms. Latimer, if you have a short answer to add to that.
Ms. Latimer: I think you need to have a continuing judicial review of people being placed in solitary confinement. I think 48 hours is very good for, first of all, testing the grounds on which people were placed in solitary confinement and whether they’re a legitimate vehicle to be used.
Our review is that placement in solitary confinement should never exceed 15 days, but working a lot with males who can be violent, we’re not of the view that we can abolish solitary confinement or administrative segregation, because there are circumstances in which prisoners will hurt each other unless they’re separated from each other. Sometimes that takes more than 48 hours to resolve, but it shouldn’t take more than 15 days.
Senator Batters: Thank you.
Back to Ms. Kish, as the Associate Executive Director of the Canadian Elizabeth Fry Societies, how do you assess risks to the safety and well-being of inmates, particularly those who are vulnerable or threatened within the prison population, in the case of delays and processing extension requests by the superior courts for stays in structured intervention units? What urgent protective measures would you recommend for those inmates?
Ms. Kish: We do a lot of work on the ground hosting workshops and bringing in productive conflict resolution tools. The evidence is clear that in incarceration systems designated for women, as Ms. Latimer noted, the realities and contexts are very different than in the men’s sector. We believe that in the existing structure, there are more than enough tools available for Correctional Service Canada to keep people safe in ways that don’t place them in such restrictive conditions. We, as a partner, are committed to continuing to bring in community experts and to support the population to have the skills required to do so without being kept in small cages.
Senator Batters: Thank you.
Senator Prosper: This is a general question for each of the witnesses. Thank you for appearing before our committee.
I’d like to get your insights, in practice, on the resources that are available to conduct assessments in terms of mental health or those who are in the system. From what I understand, if it’s dealt with by staff as opposed to a professional, and if in part it is a staff member within the facility, chances are that they might not have the appropriate expertise. The systems and processes which they use are largely ticks in a box — I don’t know a better way to say that. Can you give me a bit of insight on those assessments and the resources needed to address the issue?
Ms. Latimer: Certainly. I think part of the rationale, and part of the rationale for the decisions which found the administrative segregation regime to violate the Charter, had to do with how people with mental illnesses were treated when they were placed in administrative segregation. Part of what we were led to believe that Bill C-83 would do would be to be vigilant around people’s mental health as they were placed in there, and a significant amount of resources for the entire regime were dedicated to that. I believe Minister Goodale said that there was $450 million dedicated to implementing. We would expect that the appropriate quality of assessors are there to monitor and to take care of people’s mental health.
We wait with interest for the next report from the Structured Intervention Unit Implementation Advisory Panel because it will have a focus on mental health. What I believe, from my experience in talking to people who have experienced it, is that the necessary assessments are not taking place in a way which makes a difference for people.
Senator Prosper: Do you have something to offer further to that?
Ms. Kish: We see the problem as being kind of dual-ended. One, all of the people who provide therapeutic and health services within the Correctional Service of Canada are trained in a risk and securities framework. For example, with the recent influx of behavioural counsellors, incarcerated women and gender-diverse people see these individuals as a therapeutic relationship and are often shocked when the same individuals lay disciplinary charges against them. As long as there are lateral and strong relationships between health care providers and the Correctional Service of Canada, we’re going to see mental health integrated into risk frameworks, and duly, from the end of incarcerated people, we see people being afraid to say they’re not okay because historically and persistently, when an individual who is incarcerated indicates that they’re unwell, this is often responded to by reducing their access to everything in prison and then treating their suffering as risk.
Ms. Mitchell: I have nothing further to add. I believe Ms. Latimer and Ms. Kish covered this topic well.
The Chair: Thank you, all.
Senator Simons: Ms. Latimer, I was really disturbed to hear you speak about places outside SIUs where people are being kept in what is de facto solitary confinement. Can you tell us what kinds of places, and if they are not in the SIUs, is anyone tracking what’s happening in those informal segregation units?
Ms. Latimer: No. It’s very discouraging that the response to the Charter decisions was not to respect the rights that had been shown as being violated in those decisions. So what we have now is that in structured intervention units, some attention is being paid to how these are implemented. So people are being placed in isolated confinement, and it’s called different things, whether it is the Voluntary Limited Association Range, or just a lockdown on a particular range so no one is getting out, or isolation within a particular cell or observation cells or — you name it. There are a lot of different places in the prison where you’re going to find people in their cells alone for 22 hours a day or more and without getting meaningful human contact.
Senator Simons: With the SIU, there are rules and there is oversight. If I’m put in a cell and it’s functionally a segregation unit, is anyone tracking that? Do any of you have reliable data about how many people may be kept in those conditions in a given month or quarter?
Ms. Latimer: No. I don’t think CSC is producing reliable data on that, but it would be very worthwhile to ask them how many people are being detained consistent with the UN definition of solitary confinement, which is 22 hours a day in a cell without meaningful human contact.
Senator Simons: Maybe a quick question for each of the three of you. We know that people with mental illness are disproportionately represented in the prison population. Of the people who are being kept in SIUs or other solitary confinement type of situations, what percentage of them would you say, are suffering from a mental illness, whether that’s a psychotic condition, profound depression or suicidal ideation? What percentage would it be?
Ms. Latimer: It would really be difficult to give you an assessment of that because the isolation itself will cause mental illness. There may be people who are — I was talking to one young person who was fine, and within 48 hours in an administrative segregation cell, he was suicidal. So the deterioration of well-being can be very rapid, and it’s — what the isolation does is you start to lose track of what’s real and what’s not real. The line between the unconscious and the conscious mind becomes blurry and you start seeing and hearing things that are not really there.
If you already have a mental health condition that would predispose you, it would be a lot more challenging for you. But it’s challenging for everybody.
The Chair: I’d invite the others to respond, Ms. Kish first and then Ms. Mitchell, if you would like, on the question of the proportion of inmates in these circumstances who have a mental illness or mental health challenges.
Ms. Kish: I agree with Ms. Latimer. Certainly, from our experience, it is most individuals who are admitted to structured intervention units who have a diagnosed pre-existing mental health considerations. Upon admission, they become so much worse, for so many individuals. Women and gender-diverse people are in distress for so many reasons in prison and more so in restrictive and segregated conditions.
We don’t only interact with people in prison, but once they’re released, and the long-term impact of this type of treatment is really important to underscore because we see people five to ten years later in the community who really struggle to participate economically and to have relationships and who then isolate — the patterns continue post-incarceration, in really troubling ways.
The Chair: Thank you.
Ms. Mitchell: Yes, thank you. I agree very much with Ms. Latimer and Ms. Kish on this point. The population with mental health conditions is, I would say, a very large percentage. I don’t have the exact figures, however.
Certainly, isolation can create certain mental health challenges. Even statistics becomes a bit tricky, because for lack of resources, many individuals are not necessarily getting treated and diagnosed as well, which is just one added challenge with getting precise figures on this point.
The Chair: Thank you.
Senator Klyne: First two questions that I have and hope to get through — and maybe a third — are for Ms. Mitchell. How do you foresee the proposed requirement for transferring individuals with disabling mental health issues to a hospital contributing to their well-being and rehabilitation compared to being confined in a penitentiary? Is this plausible from a judicial point of view?
Ms. Mitchell: Yes, thank you. I will begin by saying that we have very serious mental health challenges that contribute to many people ending up in the criminal justice system who shouldn’t be there, and the prison setting is obviously not one that is most conducive to the treatment, rehabilitation and reintegration of individuals who do suffer from mental health challenges. It’s very much in the interests of public safety to be putting individuals in the environment where they’re going to be getting the support and the care that they need to further their rehabilitation and reintegration. So we very much support measures that extend alternatives to incarceration.
There are, certainly, challenges and logistical issues to sort out when it comes to facilitating this particular approach and transferring between these settings, but we are of the position that it is something that is possible and it will require some work and some consultation between the provinces, which oversee the health care systems. There is a path forward here, and given that there are benefits to be had from getting people in the appropriate setting, it is worth the effort and overcoming those particular challenges.
Senator Klyne: Ms. Mitchell, clause 11 may be challenged before the courts and unenforceable from a legal perspective under the Criminal Code. Does the Criminal Code allow a judge to change the sentence delivered for the reasons listed in the new proposed section of this bill?
Ms. Mitchell: Our position is that section 24 of the Charter allows courts to grant any remedy that is appropriate to remedy a violation of Charter rights. Section 11 is not necessarily creating new powers, it’s simply affirming something that could already be done by the courts under section 24 of the Charter.
There is very significant value in saying that and to have legislation that enshrines this, which specifically empowers our courts to be doing this. Because before now it was not something that had been done, to the best of my knowledge, at least. We do need to take the steps that Justice Arbour said to be facilitating a level of collaboration between our courts and the legislature to protect rights.
Even if we do come to the conclusion that we need to make these coordinating amendments, I will reiterate that we should be doing that. Clearly, prisoners need access to effective remedies. As inconvenient and difficult it might be to make these amendments, it is possible and it is absolutely essential if we’re going to uphold the rights of prisoners.
Senator Klyne: Ms. Kish, one of the objectives of this bill is to allow for the provision of a correctional service and plans for release and reintegration into the community of people from disadvantaged or minority populations by community groups and other similar support services, which I have no issue with. I’m just wondering, does the bill provide for programs that should be provided within the correction services or correctional institutes to help the incarcerated find a path to safe reintegration into communities? Is there anything in there that ensures that the programs are being given and offered to these inmates and they can get these programs and services before they come to this point?
Ms. Kish: I think there’s not, and hopefully, quite intentionally so, because what we know from what’s happened is that the provision of programs and services in the penitentiary, although they all have to be done toward re-entry and reintegration in ways that are responsive to all the populations that are in there, they become integrated into the security frameworks that flaw them. From the perspective of supporting women and gender diverse people since the Creating Choices philosophy, it’s been recognized that the best way for people to get access to a program or to receive any kind of therapy or care is in the community where the standards of care and the goals of the training are the priority and not the goals of security. I’m sorry if that was convoluted.
The Chair: No, it wasn’t. It was helpful, Ms. Kish.
[Translation]
Senator Dupuis: I’d like to thank the three witnesses for being with us today.
Ms. Latimer, I’d like you to reconsider your comment about the definition of “disadvantaged or minority population.” You seemed to indicate that this definition is not inclusive.
Could you clarify what should be added or written differently?
[English]
Ms. Latimer: Thank you very much. I started working in youth justice with young people who were in conflict with the law, and many of them were coming from backgrounds of deprivation, poverty, abuse, foster care, and many of them were white. Even though they experienced these situations, I’m not sure that they would necessarily be within the definition of disadvantaged there.
The problem in my mind is that they were not — I don’t know how to describe this — properly socialized. They didn’t learn the social norms. It would be like integration for the first time rather than reintegration. I wouldn’t say they were necessarily suffering from a mental disability or anything like that. They were just disadvantaged, absolutely disadvantaged, in terms of their start in life.
Many of them, I find, have ended up in the federal prison system. I think it would be beneficial if they also had access to community-based supportive programming that could help them overcome the legacy of their disadvantage and their experiences from when they were young.
[Translation]
Senator Dupuis: Thank you. That answers my question.
Do you have a suggestion for different wording? Because it seems to say here, in the definition of section 8: “disadvantaged or minority population includes any population that is or has been the subject [...] of discrimination [...].”
Should we add an element?
[English]
Ms. Latimer: Perhaps if you just said, “People who have experienced disadvantage and those who have —.” If you just made it a separate.
[Translation]
Senator Dupuis: That answers my question.
[English]
Ms. Latimer: If it were a separate category, then I think it wouldn’t be as limiting.
[Translation]
Senator Dupuis: Thank you.
[English]
Senator Busson: Bill S-230 would require, under certain circumstances, that a detained person who has a disabling mental health issue, be transferred to a hospital, including a mental health facility. That’s one of the requirements. How should “disabling mental health issues” be defined for the purpose of Bill S-230?
Ms. Latimer: It is a challenging issue to define what we mean by “disabling mental health.” I certainly know that the litigation dealing with the damages for administrative segregation — those class action lawsuits — are looking at serious mental health problems and the challenges of people with serious mental health issues being placed in administration segregation.
I know, for example, that the Mental Health Commission of Canada is developing a national action plan or call for action associated with the criminal justice system, so look to see if there’s some possible definition there that makes sense.
I think “disabling” is as good as any. I mean, if people are unable to function, they’re sufficiently disoriented or retreating and they can’t function, then that’s debilitating and probably does require some focused professional assistance.
Senator Busson: It seems to me that regardless of how we land on that definition that it’s suggesting that people who are suffering from that level of mental health issues would need custodial hospitalization. I’m wondering if I’m right about that in most cases. What do you think would be the implications of that, both administrative and the infrastructure demands of that requirement?
Ms. Latimer: You point out a very interesting element that in Canadian society generally, there is not sufficient mental health care for everyone who needs it. Frankly, I think there needs to be a lot more effort dedicated to dealing with mental health issues in the general population and for this particular population, which doesn’t get a lot of help.
I had the opportunity to interview some people who were in the mental health unit at Millhaven who had been subjected previously to administrative segregation, and it was probably the series of interviews that left me the most sleepless. It was very tragic and very unfortunate that people with those levels of mental health problems are being subjected to something that’s making it worse for them.
We have a challenge, but if you were going to allocate resources on the basis of need, these people are very needy. Some of them are extremely needy of the resources that are available.
Senator Busson: Would I be right to suggest that this condition would also go hand-in-hand with the need for drug treatment, which is another infrastructure issue for this country?
Ms. Latimer: That’s a good question. There’s no doubt that there are often dual diagnoses and there are new types of drugs that seem to promote more of a psychotic episode in people. I don’t know if it’s long-lasting or if it’s enduring; I think it probably is enduring. Yes, I think there is a real dual diagnosis challenge there with addiction and mental health.
Senator Busson: Thank you very much.
The Chair: Thank you, both. Senator Simons, I’m going to invite you to forego the second round if we could. We started a bit late, and I’m worried that we will be noticeably inconveniencing the second panel.
Senator Simons: The question I have in my head will work just as well for the second panel.
The Chair: Maybe you can ask Senator Pate later. Senator Pate, you are the sponsor of the bill. I’m going to turn over the last set of questions to you.
Senator Pate: Thank you very much. I wanted to pick up where Senator Busson left off. One of the questions raised by some who have spoken to us about the bill is that there are an awful lot of people to whom the mental health provisions in particular might apply. One of the reasons for that is the fact that the mental health system has not been able to keep up, and when they have not, the prison system has been used. Do you see that as a viable reason, either morally, legally or ethically to continue the practice of keeping people in prison?
Ms. Latimer: Not at all. I think we had a problem with deinstitutionalization and the thought that the community resources were going to be adequate to deal with the people who are no longer being subjected to custodial for mental health issues. The community was not able to keep up. The resources are just not there. So, no, I think there needs to be more resources, particularly community-based mental health services.
Senator Pate: You pointed out, and I’m happy to have the other witnesses also join in on this, but you pointed out that when Minister Goodale was considering this bill, there was a significant allocation. In fact, there was a special application to the government to have a Royal Recommendation for funding for mental health services. The understanding was it was to contract services through existing exchange of service agreements with provinces and territories to have additional mental health beds. To your knowledge, has any of that happened?
Ms. Latimer: I would say, not. I know they already had beds with Pinel institute. They used to have beds with Brockville, and I think they lost those beds. If anything, I think they’re heading in the wrong direction. Ms. Kish might know better than I do whether there are prisoners being transferred into beds.
The Chair: Ms. Kish and Ms. Mitchell, would you like to contribute on this, if you have a view or insight?
Ms. Kish: I mean, not to any greater extent than there was, the very limited beds at the psychiatric centres.
What works, and speaking to the burden and the infrastructure, I know of three treatment centres in B.C. — and all addictions treatment centres respond to mental health because they are conflating in our experience — where federally incarcerated people are successfully transferred into treatment centres in the community from a custodial perspective and quite differently from the regional psychiatric centres. They are community-based and care-based, and the results are wonderful. So I recommend looking into what’s working and then building from there.
The Chair: Thank you. Anything from you, Ms. Mitchell?
Ms. Mitchell: I have nothing to add. Ms. Latimer and Ms. Kish spoke well on this point.
Senator Pate: The types of mental health beds that you just spoke about, Ms. Kish, those are accessed through treatment orders as part of the conditional release provisions. Is that correct?
Ms. Kish: Sometimes on condition of release, sometimes earlier. At the Fraser Valley institution, the penitentiary for women, there were two treatment facilities that were accepting people with certain criteria prior to day parole. I’m not sure if this is being done through the sections that this bill addresses.
In either event, we see when individuals are placed in conditions which cause them harm they deteriorate, and when individuals are placed in conditions which support them, we’re seeing these individuals successfully navigate treatment and have productive and fulfilling lives; whereas people who are experiencing these structured intervention units are irreparably harmed.
Senator Pate: Thank you. My understanding is those aren’t through section 29; those are treatment orders as people are becoming eligible for escorted passes and unescorted passes. But we can certainly ask that if we have an opportunity.
What were the provisions before Bill C-83 and the creation of the SIUs? What was the definition of “segregation,” and what kinds of oversight mechanisms existed prior to that?
Ms. Latimer: It was interesting in that disciplinary segregation had more due process protections or procedural protections than administrative segregation. The same three provisions, grounds for detention, that exist now in a structured intervention unit were there under the administrative segregation provisions, but they did get access to information about why they were being placed in administrative segregation and did have an opportunity to question whether there was a factual or evidence-based reason for their placement in administrative segregation.
Prisoners would complain that they had more rights on the disciplinary segregation side than on the administrative segregation side. But I fear that even those limited procedural protections that were there under the CCRA for administrative segregation disappeared in terms of not only of just the SIU but that proliferation of solitary confinement by different names that we’re seeing now.
Senator Pate: Would you agree that prior to this the definition of segregation was, basically, anyone not in the general population, and it could be administrative segregation if it were disciplinary? They also had a right to counsel as well.
Ms. Latimer: Yes.
Senator Pate: We saw the overuse of administrative segregation as a way to avoid the accountability required for disciplinary segregation. Do you agree with that?
Ms. Latimer: I would agree with that. You would still have dry cells and a few other isolated confinements, but the majority of people were being placed in administrative segregation.
The Chair: Thank you both. I wonder if I could bring this section of our discussions to a close by thanking Ms. Kish, Ms. Latimer and Ms. Mitchell. As usual, you made very valuable contributions to our study of the bill, and I want to thank you again for joining us.
We will now switch to our second panel of three people, and I would like to welcome each of them.
We have with us Michael Spratt, Partner, AGP LLP. Welcome, Mr. Spratt. We also have Adelina Iftene, Associate Professor of Law, Schulich School of Law, Dalhousie University. Welcome, Professor Iftene. Also with us is Mary Campbell, Former Director General, Corrections and Criminal Justice Directorate, Public Safety Canada, now retired.
Mr. Spratt and Ms. Campbell are joining us in person and Professor Iftene is joining us by video conference. We will invite each of you to make presentations in that order of about five minutes each, and that will be followed by questions and discussion with senators. Beginning with you, Mr. Spratt, the floor is yours.
Michael Spratt, Partner, AGP LLP, as an individual: Thank you very much. Good evening. My name is Michael Spratt, and I’m a criminal law specialist and partner at the Ottawa law firm of AGP LLP. It’s always a pleasure to appear before this committee.
There are many frustrating and disheartening aspects to the practice of criminal law. The underfunding of the justice system, court delays, our refusal, seemingly, to adequately deal with mental health, addiction and poverty. These are all things that weigh heavily on me, but all of that pales in comparison to the helplessness that I feel and that my clients feel when they’re faced with injustice in the correctional system. Let’s be very clear: There is injustice in the correctional system.
I know you’ve all read the Office of the Correctional Investigator’s yearly reports, which detail punitive use of solitary confinement and dry cells, problems with access to health care and mental health supports, incidents of discrimination, racism and the prevalence of sexual violence and violence in general.
I not only read about those tragic accounts in the Correctional Investigator’s reports, but I hear about them directly from my clients, and there’s often very little that I can do to help them seek justice.
Let’s imagine a very reasonable hypothetical. An inmate with mental health issues isn’t receiving adequate treatment for those mental health issues and is instead confined in a Structured Intervention Unit for, let’s say, 30 days. Maybe that decision flows from an honest mistake of law or policy. Maybe it was a punitive decision, or maybe it was just an unreasonable one. In any case, there is little recourse for that individual.
Often, that person is not capable of advocating for themselves, and even if they are, there are disincentives to making internal complaints and reporting the matter. Reports to the Correctional Investigator may help inform his reports and inform his recommendations, but they do little to provide individual and timely remedies to the individual — the person — who is suffering under those conditions.
It’s often difficult for that individual to contact a lawyer, and when they do, we often face a wall of bureaucracy, obstruction and secretiveness. When I am able to get some information, a human rights complaint or other civil action would involve bringing in another lawyer with a specialty in that area, and that’s a lengthy, complicated and potentially expensive process that doesn’t provide a guarantee of a timely remedy. Currently, there is no mechanism to return the person to the best place to address the issues they’re facing: the sentencing judge.
That sentencing judge has heard the facts of the case. They know the circumstances of the offender. It’s completely illogical to deny the sentencing judge the ability to administer a sentence, and that’s what I want to talk to you about today.
I can tell you that judges are aghast when they hear about some of the conditions and some of the treatment that people in prison face. They’re aghast that they have sentenced someone, presuming that the law and policy will be followed, only to find out that it’s not, and they are helpless to do anything.
The lack of recourse for a person in custody when faced with situations like I’ve described is — the solution is outlined in the bill. The mechanism to rectify that situation can also correct some disparities that we see in the criminal justice system. You see, judges can consider conditions of incarceration, collateral consequences, state misconduct that occur prior to sentencing, but they can’t consider any of those if they happen after sentencing.
The situation that we’re left with is we can have two identical people who have committed identical offences, one who experiences that illegal, discriminatory or unfair conduct before a sentence is imposed and the judge has the ability to craft a sentence that addresses and take those into account, but the moment the decision is imposed, the same offender with the same offence who experiences those same injustices after, is left without any recourse from the sentencing judge, the person best suited to provide a remedy.
The proposals in the bill would go a long way not only to ensure speedy remedy, but they would ensure that people who experience injustice behind bars, no matter when it occurs, are able to seek recourse before a responsive and timely decision maker. A procedure to allow sentencing courts to review the administration of a sentence would allow courts to access documents, to lift the veil on some of the secrecy we face, to compel testimony and to fully explore all the facts that led to the situation and impose an appropriate remedy.
I like the bill, but I always think things can be made a little bit better, so I will leave you with these two suggestions to consider when you’re reviewing the legislation.
Many of the individuals who would benefit from this legislation are not going to be able to afford counsel and won’t have the capacity or skill to represent themselves before these hearings. There are mechanisms that can be easily inserted into legislation to deal with that. We see those in the Youth Criminal Justice Act or section 486.3 of the Criminal Code that would allow the court to appoint counsel at Legal Aid rights to assist the individual. That’s a change that could be made to ensure things move quickly and timely and we don’t take up a lot of court resources dealing with these issues.
The other thing the bill should contemplate is how these individuals would appear before the court for the application. One of the worst things is to take the person out of the federal institution — sometimes take them across the country or across the province — have them at a local remand facility to get them before the court, but that can be easily corrected with some language allowing for virtual appearances from the federal institution, and that would allow the court to impose some remedy, hear the facts, or not impose a remedy after hearing the facts, but not disrupting the process or causing any more delays in the criminal justice system.
I’m happy to answer any more questions on that specific provision.
The Chair: Thank you, Mr. Spratt. You went a little bit over your time, but then you used less time the last time you were here, so it balanced out. Thank you.
Could I invite Professor Iftene to address us for roughly five minutes? The floor is yours.
Adelina Iftene, Associate Professor of Law, Schulich School of Law, Dalhousie University, as an individual: Good evening, and thank you for the opportunity to speak to Bill S-230. In what follows, I will focus on the amendments regarding the duration and oversight of stays in SIUs and the proposed reduction of sentence remedy. I have submitted some extended explanations for the three points that I will make orally, as well as three appendices that I will be referring to during my remarks.
The first point that I want to make — and which you’ve already heard quite a bit on tonight during the first panel — isolation under various names continues to be overused in federal corrections. Whether we call those SIUs or we call them something else, they are still isolation. Structured Intervention Units have been implemented under a promise to abolish segregation and to create a more therapeutic space. That has not happened. The reports of Professors Doob and Sprott as well as the more recent reports of the Structured Intervention Unit Implementation Advisory Panel have shown incredible challenges in implementing the SIUs, such as the fact that, in many respects, they continue simply to be variations of the old regime of segregation and the fact that people with mental illnesses are experiencing SIUs for extensive periods of time and that racialized people are overrepresented in SIUs.
What I do want to especially draw your, attention to is the fourth Doob and Sprott report, one I had the opportunity to co‑author and which I also submitted to you as Appendix A. This report shows, using Correctional Service Canada’s own data, how all of these concerns regarding SIUs — concerns you’ve already heard about — have not at all been mitigated by the independent external decision makers that were — that’s an oversight mechanism created specifically to oversee the stays in SIUs and to prevent abuses.
The second point that I want to make is that isolation, of course — a point that is very well documented, and I’m sure you have heard about this — worsens an individual’s mental and physical health. I have provided you with extended notes in which I explain this point, as well as in Appendix B, where it is also highlighted how current correctional practices regarding the use of isolation under any name, really, including SIUs, failed to meet the United Nations standards, and are likely not Charter compliant because they do present some of the same issues that the old regime that was found to be not Charter compliant presented.
The third point that I want to make is that Bill S-230 may help mitigate some of these issues in at least two ways. First of all, I think that, considering the health and legal concerns, the use of isolation rises for everyone, especially for those with mental illnesses. Considering that we clearly still use forms of isolation in Canada with very little meaningful oversight, I submit to you that strict measures to control the use of segregation under whatever name are needed.
These measures, as Bill S-230 seeks to do, should include imposing strict limits on the duration of isolation, as well as requiring a judge’s order for stays that exceed that duration. I think we’re at a point where this is the only reasonable oversight mechanism, because we have well-documented failures of any other forms of oversight, both internal and external. At this point, it’s clear that only a court presents sufficient independence and impartiality guarantees to oversee these matters.
Finally, I would like to address the issue of remedies for those who experience abuses in prison through SIUs or otherwise. As you’ve heard from Mr. Spratt, prisoners are at an increased risk of harm and of having their rights infringed. The way the SIUs have been implemented is really just an example of that. Correctional services are rarely held accountable for the harm they are inflicting. The parole system has also done little to mitigate the situation of individuals who experience harsher punishments based on how their sentence is administered. I’ve also submitted appendix C, in which I elaborate in an article I wrote a while ago on that particular issue of parole.
Allowing for a sentence reduction as a remedy is really essential to protect rights and to ensure accountability. In the 1990s, Justice Louise Arbour in her report on the Prison for Women in Kingston noted that the rule of law will not implement itself behind bars without intervention from parliament and the courts. She then proposed that courts be able to grant sentence reductions as a remedy for harms encountered, as a result of how sentences have been administered.
To be clear, this is a remedy that other countries have and have been providing for decades, including northern countries and some western European countries. However, in Canada this recommendation has not been implemented. Instead, a variety of reforms tinkering at the margins of the main issue, which in my view is the lack of accountability of correctional systems, have been taken. Yet here we are, despite all of these reforms, 30 years later, discussing the same issues. We’re discussing the overuse of isolation, lack of adequate oversight and over incarceration of people with mental illnesses. I think this bill is an opportunity to provide courts with the power to oversee the implementation of the sentences they render and to rectify the harms people encounter in prison every day. Thank you.
I’m going to invite Ms. Campbell to address us for roughly five minutes.
Mary Campbell, Former Director General, Corrections and Criminal Justice Directorate, Public Safety Canada, as an individual: I hope I can change that pattern, chair. I haven’t done formal written remarks, it’s not usually my style to do that, but I’ve lived through most of the issues that are on the table today. I want to touch on three things in particular.
Correctional Service Canada, or CSC, has always had the authority to transfer inmates to hospitals, whether for assessment or treatment, and that was in the Corrections and Conditional Release Act, or CCRA starting in 1992. That authority exists, and obviously has been used. Senator Boisvenu has spoken about the availability of Philippe-Pinel, a forensic psychiatric facility. He has praised it with good reason. The former chair of this committee was a huge proponent of the Brockville Mental Health Centre, particularly when they developed a forensic unit for women, and again, that’s something that is available to CSC. There are resources out there, whether they are within CSC’s control or the private institutions that they contract with.
This is not to say that there’s an unending supply of beds out there, but there are options, and of course, CSC itself has run regional psychiatric centres, such as the one in Saskatchewan, for example. These measures are available if there’s a willingness to use them.
On the issue of the 48-hour limit on segregation, I just want to flag that I hope that there is protection in the bill that will prevent what one would call the 47-hour switch, which is once 47 hours has been reached, CSC pulls the person out for half an hour, and then puts them back in and the 48-hour cycle starts all over again and they avoid the necessity of going to court. I just want to flag that this is an important issue.
The third issue, the Arbour recommendation, yes, I was with the Solicitor General of Canada and all that thereafter. The recommendation is not unknown to Canadian criminal justice. People who are in pretrial remand get extra credit, more than a day for a day, because the conditions in remand are known to be more difficult than sentenced time. That’s an analogous situation. The Youth Criminal Justice Act has provisions for the young offender to go back before the court to have the custodial sentence reduced or to have the conditional supervision period reduced. These are just a couple of examples. This is not a foreign concept to have this return to court.
Why was the Arbour recommendation not pursued? We’re approaching 30 years since that recommendation was made. As I say, I was at the Solicitor General at the time, and if you go back and look at the government response in 1998, it noted that we had referred it to the Department of Justice because it was a sentencing matter, and that it was “under review” and a draft report was expected in the fall of 1998. Fast forward to the tenth anniversary in 2006, and a report on the progress at that point — you will not be surprised — said that it was still under review by the Department of Justice. In a moment of great candour, the report also said that there’s no indication from the Department of Justice that they will be pursuing legislative amendments in support of these recommendations, and that was the end of the matter. Then, of course, officials leave, governments change, ministers change, and that recommendation didn’t go anywhere. That was its fate until Senator Pate has brought it forward in this bill.
That is all I’ll say right now. I’m happy to answer any questions.
The Chair: Thank you, Ms. Campbell. You hold the record for getting in under five minutes. Thank you.
Senator Batters: Thank you to all of you for being here. You have always provided very valuable advice to our committee for many years, so thank you for that.
First of all, I want to start with Mr. Spratt. There were 3,734 inmates who transited through a structured intervention unit from November 2019 to November 2021. How would you evaluate the impact of that kind of volume on the extension requests in superior courts?
We’ve obviously been dealing with court delays. It’s been quite a crisis in this country for a number of years already, and I know you’ve been here many times talking about that. I wonder if you think the current judicial system is equipped to effectively handle such a volume of cases.
Mr. Spratt: I’ll be candid, I think it would put a strain on a superior court. We’re already experiencing a lack of resources and an overtaxing of what resources we have. But I would be hopeful in a number of aspects.
We talk a lot about deterrence, both specific and general in the criminal justice system. The mere fact that you have to go before a judge to justify an extension might limit the number of times you need to go before a judge to justify an extension. It might encourage reasonableness when one exercises discretion to take that sort of step.
I also think that, with experience, courts can be efficient in dealing with these matters. We see superior courts dealing with bail reviews and detention reviews in the pretrial stage, and they’re able to accommodate those. Every person in pretrial custody is entitled to a detention review at 90 days. There are many more people than the numbers you’ve cited in pretrial custody, unfortunately. The superior courts are able to deal with those sorts of mandatory reviews, so I have confidence that the system would be able to adapt to deal with the new work that it would be asked to do.
Senator Batters: Thank you.
Mr. Spratt, the amendment that you were suggesting in your opening remarks about allowing prisoners who are subject to this bill to retain counsel at legal aid rates, when you initially mentioned it, I thought, “Yes, that’s a good idea; that has merit,” but then after thinking about it a little bit, I have a concern that because this is a private senator’s bill, and, as such, it’s not allowed to spend money without a Royal Recommendation, would you agree that that could be a concern with respect to that particular element?
Mr. Spratt: I’ll leave the parameters around what is appropriate in terms of a private member’s bill to the experts, which is all of you, but legal aid is administered by the province. It wouldn’t be an expenditure of any federal funds. It’s certainly something that the provinces would have to cover, as we see in other types of legislation.
Certainly, I think that it’s something that could end up saving the courts both time and resources, both in terms of money and, more importantly, time, to have professionals involved to streamline those applications.
Senator Batters: Thank you.
Ms. Campbell, with your experience as former Director General, Corrections and Criminal Justice Directorate for a very lengthy period of time, I’m wondering if you could share your perspective about the justification of the 48-hour limit in the Structured Intervention Units established by Bill S-230.
Ms. Campbell: Certainly, there will be practical challenges with it; I don’t quarrel that at all.
I think some of the merit in it will be, as Mr. Spratt has indicated, the deterrent value of it and that the Correctional Service Canada, or CSC, will be, hopefully, better capable of planning for these situations so that they’ll have resources in place in the institutions that can manage the person, so that you’re not waiting until the last minute, and, oh, gosh, suddenly, what do we do with this person?
I think the need for the preparation will become abundantly clear to CSC. Will it be a struggle? Yes, it won’t be easy. But for a lot of these people, the mental health issues don’t appear just out of the blue. They’re quite apparent early on.
I visited a range once at Stony Mountain penitentiary for people with special needs, and I have to say, I didn’t know how they had even been found capable to stand trial, frankly. CSC knows that these people are there, that they’ve got to make some accommodation, and I think without that kind of legislated deadline, I’m pessimistic that they will do what they need to be doing.
Senator Batters: Thank you.
The Chair: Thank you both.
Senator Prosper: I was just thinking about some of the testimony from the previous panel, and I’m just curious about percentages with respect to the causal link between isolation and mental health-related issues and matters. I guess in a certain respect, I think the word used was “irreparable harm” and how it could increase or expedite or worsen pre-existing conditions. Then the question is, when these individuals get out, is it a situation where they re-enter back into the process?
I’m curious if you could provide comment, and this is for any of the witnesses, on that linkage of the availability of data that shows that link between isolation and increased harm in terms of pre-existing mental health conditions.
Ms. Campbell: I can’t speak to any research or data. I mean, your comment raises for me the issue of recent social concern about loneliness, particularly since the pandemic and loneliness among older adults.
I think it’s a way to relate the issue of isolation. Society has started to realize that there is a lot of loneliness out there that has a real mental health dimension to it. Really, what is isolation or segregation other than, in fact, a form of profound loneliness?
I would hope that there would be further research on the impact of that isolation in a custodial community and the long-term impact of it. Right now, the people that end up in segregation often just have lifelong challenges, and the period in segregation may do some temporary good, but without profound treatment it is not going to change the cycle. They’ll return to being very isolated individuals without social supports.
I think that’s quite a profound issue, not just inside, but a profound issue in society that all of us should be concerned about. Because as you point out, most of these people are coming back into the community.
Ms. Iftene: May I also answer that?
The Chair: Yes, please do.
Ms. Iftene: There is quite a bit of research, actually, both in terms of the people who enter prisons with mental illnesses in Canada and generally.
In Canada right now, in the work that I have done, I’ve done work with people over 50, so around 40% of those over 50 in Canadian federal penitentiaries have a diagnosed mental illness — at least a diagnosed mental illness. In terms of women, generally, around 80% have a diagnosed mental illness, so it’s a very high percentage for women.
I’m not sure about the percentage of men, but I think the last numbers that I saw were around 30%. Again, here we’re talking about diagnoses, which, of course, many of the people that enter prisons do not have access to a diagnosis before they enter the prison, so these numbers are probably underreported.
First, we know that a lot of people entering prisons have very high percentages of mental illness, higher than the general population that’s not in prison.
Second, there is a lot of research documenting how the prison environment itself — isolation aside, segregation aside — actually worsens mental illnesses. There have been studies, even in Canada, that are showing that people exiting prisons tend to have higher rates of suicide, higher rates of addiction and generally higher mental health needs.
Third, I submitted to you in my extended comments some of the research that is showing that isolation actually worsens anybody’s mental illness. Even if you don’t have a diagnosed mental illness, negative health consequences will appear as early as 48 hours. After 15 days, they will become permanent, and there’s really nothing that can be done. It’s quite dramatic, and that is for people who don’t have mental health illnesses.
For people with mental health illnesses, there is a lot of research, including United Nations research, showing that all of these negative consequences start a lot earlier than the 48 hours and a lot earlier than the 15 days. There is quite a bit of research out there, some of it I have submitted to you, but, certainly, there is more that should worry us in terms of using isolation of any kind in response to mental health illness and in response to unwanted behaviour.
At this moment, isolation is used to control anything that is unwanted behaviour, even if sometimes it can be because of actual pre-existing health problems.
The Chair: Thank you, Professor Iftene.
Senator Klyne: I have a number of questions here, but I’d like to ask Ms. Campbell, given your experience in corrections, how can correctional facilities adapt to the proposed changes in Bill S-230, or how must they adapt to the proposed changes in Bill S-230? Are there potential challenges in implementing the legislation that should be anticipated and addressed?
Ms. Campbell: Yes, there will be challenges in implementing it. One of the challenges is having adequate medical resources within the system, and we know how difficult it is to attract doctors, psychologists and therapists to come and work in an institution. It’s an ongoing challenge for various reasons. We’re familiar with that, so there is nothing new there.
The challenge will also be in educating all of the staff of the legal obligations. I don’t want to paint a broad brush of everyone in corrections. It’s a tough job, and there are many good people doing the best they can, but there is often a big gap between Ottawa and the range at Stony Mountain or Matsqui. Staff don’t always have a good awareness of what the law is and what their particular obligations are. When I spent more time in the institutions, I used to say if I had a nickel for every time I was told that some proposal or some rule was the law, I’d be very rich. There’s not good awareness of the difference between law and policy. I think the education of staff on these measures will be crucial to their success.
I hope there will be a bit of a deterrent effect that staff will realize they won’t need to go the Arbour recommendation route as long as they avoid creating or contributing to conditions that are harsh or illegal.
I think there will be a lot of work to be done, such as always a reallocation of resources. I have a lot of thoughts as to how CSC could reallocate its money, which is, after all, the money coming from every taxpayer in Canada. But I don’t want to downplay it. Yes, it will be a challenge, but they are capable of meeting that challenge. It’s going to take some real leadership and really good staff education.
Senator Klyne: Ms. Iftene, I wanted to ask you a quick question about how you foresee the provisions of Bill S-230 impacting the health and well-being of prisoners, especially those with disabling mental health issues. Are there specific aspects of the bill that you believe could address or exacerbate the existing challenges in prison health?
Ms. Iftene: One thing that the bill does is actually remove the idea that isolation is, or can be a solution for any kind of behavioural problem, including those caused by mental illness. I think the important thing it does by putting a hard limit on the ability to use isolation is that it flags, the fact that mental illness needs other forums to be addressed. There is a need for treatment, likely treatment that’s not going to be in prison.
At the moment, isolation is being used and has been used for decades as the one-stop response to anything that is seen as unwanted behaviour including health issues. I think that is extremely important. There have been a lot of attempts over time to limit these disciplinary or punitive responses, and they have failed. I think it is time to make it very clear that you have 48 hours to find an actual solution to the problem.
Yes, it’s going to be challenging because, of course, the bill does not and cannot provide, at this moment, are all the other alternatives that will need to be in place. As Ms. Campbell said, there will be a reallocation of resources. There will be a lot of need to rethink the things that have been done, but I think it is that very important step toward saying that you can’t use isolation as a solution. Isolation is not a solution; it’s just a momentary point in time when you get that 48 hours to think of what it is that’s best for the person in that situation.
As some of the data that I’ve worked with from CSC suggests, we’re looking at people staying in isolation for 120 days. That’s a long-term solution for managing unwanted behaviour. That can no longer be the case and shouldn’t have been the case.
Senator Simons: This has been somewhat depressing. Ms. Campbell, when you described the 47-hour trick that combined with Ms. Latimer’s earlier testimony about creating — I don’t want to call them secret segregation units. I don’t know what the term is. Ghost cells?
What is it about the culture of corrections that leads to this? I worry now, listening to you, Ms. Latimer and Mr. Spratt, that the changes Senator Pate is proposing in the bill will not be a solution because it doesn’t encompass all the tricks that you’re describing.
Ms. Campbell: I agree. I think Senator Pate’s bill will not be a total solution, but it will be an important step in the right direction.
What is it about corrections, or CSC, that is so depressing? I just spent all day yesterday with about 20 colleagues. It is the fiftieth anniversary of the Correctional Investigator this year, so a group of us were invited to spend some time talking about the successes and non-successes. There were a few of us in the room, including one person who is a noted legal expert from the West Coast who is now 80 years old and has worked in corrections from the outside for about 50 years. Even he was expressing, what has the last 50 years of work been for? What have we really achieved? Partly, I’m expressing a mood that I spent a day immersed in yesterday.
Many of us concluded that the changes have been at the individual level. There are individuals who have been helped. In terms of systemic change, you’re right, it is a constant challenge. I think just the notion of locking up other humans in cages is one that just breeds a kind of punitive attitude or disregard.
We accept incarceration. It wasn’t always accepted. In England, when imprisonment as a punishment was first proposed, many people said, “What are you talking about? That’s so expensive. Why would we lock people up as a punishment?” Of course, they had worse options that they were quite happy to continue with whether it was death or transportation.
There is something just inherent in prisons, I think, that you always have to be fighting against. That’s why bills like this and many of the other ones are so important, because they keep pushing back against that drift, and it has to be done.
Senator Simons: Mr. Spratt, let me ask you, the way the bill is written, if somebody is in segregation or whatever we’re calling it now — a structured intervention unit — for more than 48 hours, this would require an action to be referred to a judge. But if somebody is kept in a ghost cell, presumably that wouldn’t kick in. If somebody is kept for 45 hours and then put back in 24 hours later for another 45 hours, that would never kick in.
At what point, could this actually be practicable for people who are seeking redress?
Mr. Spratt: I think that it’s often tempting not to pursue possible solutions because you can imagine ways that people can get around those solutions or that they may fall short. I don’t think that’s a reason not to pursue right-minded solutions.
I think what will change is that in courts where I do most of my work, we have the open courts principle. There is no open prisons principle. It’s hard for people to see what happens there. Even as a lawyer who has clients in these institutions, it’s hard for me sometimes to see what happens in there.
It is often said sunlight is the best disinfectant. The requirement after 48 hours to seek judicial approval, the ability of a judge to manage a sentence after it’s been imposed, I think that will provide some information, sunlight and insight that cannot only address individual issues but act systemically to change the public’s mind. I think in the legal profession for too long we let Latin phrases handcuff us, and we do that willingly — functus officio. The judge is unable to do anything except when we say that the judge is — except in conditional sentences, probation or ancillary orders where judges can administer these things.
I think it is a step. It’s not going to correct everything, but it’s a necessary step, and it’s a step that’s 30 years too late. We’ve been waiting 30 years for it. Let’s get on with it.
The Chair: Thank you, both. We have three more questioners and about 15 minutes before a hard stop.
[Translation]
Senator Dupuis: My question relates to what Ms. Campbell just said.
Ms. Campbell, when you talked about the fact that there hasn’t been a systemic change in 50 years, I’d like to link that with what Ms. Latimer told us earlier, that a review of the law should have begun in January 2023 and that we were being invited to undertake that work, here in committee.
If I understand correctly, we haven’t done, in the prison field, what we had to do in the labour field, i.e., move from a regime where work accidents were physical accidents, to the reality of today, where the problems are mostly mental health problems.
In the same way, have we refused to see that in prisons, it’s the same thing? Mental health problems are a major concern in the prison world. In your opinion, is a radical change needed in the way we look at these issues in the world of federal penitentiaries?
[English]
Ms. Campbell: I would certainly argue that radical change is needed. As people here have said, so many people in prison have mental health issues or other cognitive challenges. At the same time, some of them have done things that are truly harmful to individuals and society. Which do you address first? You want society to be safe for everyone, yet some of the people appearing in the courts — many of the people — are there because they didn’t have any control over their behaviour. I’m not speaking of everyone. There are some people, obviously, who knew exactly what they were doing and need to be out of society for a period of time or potentially forever. They simply can’t manage in society.
However, I think we do need to rethink how we are treating people at the margins of society, because it’s just far too easy to send them to prison and forget about them. That’s why the Office of the Correctional Investigator was created 50 years ago. It was so closed in the prison, and when the riot happened at the Kingston Penitentiary, it was this outburst of rage and anger. I visited Kingston Penitentiary about eight years later, and they had kept the one range as it was, and you see porcelain fixtures that had been pulled out of the concrete wall. It makes you wonder how enraged a person had to be to do that. The Office of the Correctional Investigator was created in large part to provide an outlet for prisoners to bring some light to bear — to give them some access to a remedy.
Fifty years later, we haven’t come that much further. People say that if an inmate is not happy or something is going wrong, they can call a lawyer. Well, first of all, they have to find a phone. This is so prosaic — find a phone. They have to find the name of a lawyer and find the phone number. They have to find a lawyer who will take their call. If they’re just left to their own devices, access to remedies is formidable. I’m not sure everyone realizes that.
Again, I’m not saying that everyone inside is suffering from some disability or deficit, but so many of them are, and they’re just cast aside.
The Chair: Thank you, both.
Senator Clement: Thank you all for your testimony and for your work. I’ve been a poverty law lawyer, not a criminal lawyer, so I’m learning quite a bit. I understand about the intersectionality of issues and the social determinants of health, but I didn’t really understand. You know, you could read statistics, but going into a prison is when you actually learn.
To your point, Ms. Campbell, when I went into Grand Valley Institution, I actually spoke to a correctional officer — correctional personnel. She said she had been off on mental health leave and was just returning. It just felt like it was the fragile-looking guarding the even more fragile. It just felt like there was so much fragility. It just felt horrible and unsafe for everyone. It’s a tough gig, and it’s tough every which way.
Mr. Spratt, you said that judges are aghast at how their sentences have been interpreted in practice. I wonder if that has been translated into support for this or how we could use that to support this bill. That would be my question for you.
Professor Iftene, you have published extensively. It’s impressive. In your opening statement, you referenced one report. If there is one report that we could look at to support this bill, which one would it be? I didn’t see it, so could you address that?
We’ll start with Mr. Spratt.
Mr. Spratt: It’s always hard to get judges to publicly comment on things like this, but I think we can take some guidance from some of the judicial commentary about the state of our institutions. Quite often, we hear judicial commentary about the state of our provincial institutions because that’s where many of the accused people are before they come before the judges. We’ve seen a trend over the last number of years about judges increasingly speaking out about conditions that people are housed in. I think there is an increasing recognition that jails and people in custody is an admission of the failure of society and of taking care of each other.
The first time I noticed this was a decision from — I think it was — 2019. I think it was Justice Schreck from Toronto commenting on the Toronto South Detention Centre, which is a provincial reformatory but suffers from many of the same problems that this bill seeks to address. I’ve never seen a judge speak more frankly about conditions in custody — about soiled and bloodied linens, inadequate food, access and the deliberate political choice. It’s a secret to many, but not to people in power, about what’s happening. To hear a judge talk about the deliberate political indifference to those conditions was shocking. We’re seeing that more often.
One of the benefits we have here is that this committee is not indifferent. There’s a bill before this committee that could make a difference and will require change that will be hard to implement. But if fixing jails, prisons and conditions had been easy, it would have been done already. Just because it’s hard and may require reflection and change isn’t an impediment. We’re seeing more of that commentary in judicial decisions going forward. I think you can take some keys from that.
Ms. Iftene: I think the one you’re mentioning is the one that I submitted to you as appendix A. It’s a report called Do Independent External Decision Makers Ensure that “An Inmate’s Confinement in a Structured Intervention Unit Is to End as Soon as Possible”?
The reason I directed you toward that is because one of the big issues we’ve heard tonight comes down to the way that Correctional Service Canada finds ways and loopholes, and does not actually often abide by the legislation; they find ways of abusing a lot of the powers they have. That comes down to a lack of accountability and transparency. That’s what the provision regarding judicial oversight, both in SIUs and as a remedy, will help with.
I think this report is very clear. It’s using data from the CSC’s first year of running these structured intervention unit. It shows that when the Bill C-83 was passed, creating the structured intervention units, their big claim — what gives legitimacy to this — is the fact that there is this external, independent decision-making structure in place that will ensure accountability and prevent abuses.
Unfortunately, using the data that CSC has, it’s shown that it actually has not made a difference in terms of the abuses people have suffered. That really drives home the idea that just because it’s external or called independent, it is not actually going to be enough to ensure the accountability and transparency that we’re looking for, so we might need to look further. And the only next step is a court.
The Chair: Thank you. We’re going to have to forego Senator Klyne’s and Senator Cotter’s second-round questions to ensure Senator Pate, as the sponsor, gets to do cleanup.
Senator Pate: I don’t know about that, but I do want to pick up on the point that Senator Simons raised about the definition. Because Bill C-83 amended the Corrections and Conditional Release Act to remove segregation, the definition that we have put back in, which was actually a definition we looked at when we were looking at the amendments — the CCRA back with the Senate amendments to Bill C-83 — was to actually require the structured intervention unit definition to include what segregation used to be. So in fact, the ghost cells and hidden cells would be covered, because it’s the condition of confinement and not necessarily the name that’s attached that defines something now. Under this bill, it would define it, then, as a structured intervention unit.
If you see some ways to improve that, I would be happy, but the only other option that we saw through the law clerk was to go back to the old definition. That would be a whole other series of amendments, so we chose to redefine that.
In addition to the issues you’ve raised, Ms. Campbell, about access, since the SIUs have been put in place, there have also been ongoing changes to the phone system. You said, “find a phone.” When people are locked in their cells, there is no phone in their cells. Am I correct? Yes. In addition, there’s usually a card that people have that has to have all approved numbers on it. So in addition to the issue of whether you know a name and a number, it first has to be prior approved. With this provision, there could be — in the general access numbers that people have access to in prison, there’s supposed to be a Legal Aid number. So I’m very interested in your proposal. If you have suggested wording, Mr. Spratt, about how to do that, it would be welcome.
Finally, because we know that the funding that was approved for outside-contracted beds has not actually been utilized for those purposes, I would be interested, Ms. Campbell, on other ideas you have about funding and how it could be reallocated, as well as any other examples of times when there have been attempts to impose accountability. I can speak of deputy commissioners for women, for instance. If you have other examples that would benefit us, that would be useful.
The Chair: Would it be possible to invite you to communicate those thoughts in writing, if you have any? We’re running right up against the time when we need to wrap things up. Would that be acceptable?
Ms. Campbell: Yes.
Mr. Spratt: Yes.
The Chair: We appreciate it.
Colleagues, this brings us to the end of our meeting. I’m constantly effusive about the quality of our witnesses, and the help they provide to the committee. In that sense, I’m extending the collective feeling of the committee in expressing appreciation for the contributions you have provided today to the work we’re doing. Thank you very much, Mr. Spratt, Professor Iftene and Ms. Campbell.
We will continue deliberations with respect to this bill, but we have other business tomorrow in relation to a different bill; we will be doing clause-by-clause consideration of it.
(The committee adjourned.)