THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, December 14, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:49 a.m. [ET] to study Bill S-230, An Act to amend the Corrections and Conditional Release Act; and, in camera, to consider a draft agenda.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. Welcome. I am Brent Cotter, a senator from Saskatchewan, and chair of this committee. I would invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Boisvenu: Pierre-Hugues Boisvenu, from Quebec.
Senator Dalphond: Pierre J. Dalphond, the senatorial division of De Lorimier, in Quebec.
[English]
Senator Klyne: Good morning, and welcome to our guests. Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.
Senator Simons: Paula Simons, a senator from Alberta, Treaty 6 territory.
[Translation]
Senator Dupuis: Renée Dupuis, the senatorial division of the Laurentides, in Quebec.
[English]
Senator Pate: Good morning and welcome. Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
[Translation]
Senator Clement: Bernadette Clement, from Ontario.
[English]
Senator Jaffer: Welcome. I’m Mobina Jaffer from British Columbia.
Senator McNair: Welcome. I’m John McNair from New Brunswick.
The Chair: Colleagues, we will begin two panels of deliberations to consider Bill S-230, An Act to amend the Corrections and Conditional Release Act.
With your indulgence, I’m going to propose that we shave a little bit of time off of our full hour so that we have an opportunity at the end of the meeting to address a couple of regulatory matters, if I can call them that. It will be an opportunity, I hope, for a few of us to send our best wishes to Senator Dupuis. There is also one matter that I would like to propose we consider in camera.
Let’s begin the first panel. The first panel is composed of very distinguished guests. I want to extend a welcome to Anne Kelly, the Commissioner from the Correctional Service Canada; Ginette Clarke, Acting Assistant Commissioner, Health Services Sector; and Jay Pyke, Acting Senior Deputy Commissioner.
Welcome, and thank you for joining us. We will begin with opening remarks from Ms. Kelly, of approximately five minutes or so, which will be followed by questions and conversations with senators. Ms. Kelly, the floor is yours.
[Translation]
Anne Kelly, Commissioner, Correctional Service Canada: Good morning, Mr. Chair and members of the committee. It’s a pleasure to be with you today.
[English]
Given the topic you are studying, I felt it important to personally be here to speak with you and answer your questions.
The core mandate of our correctional system is to rehabilitate and safely reintegrate offenders into our communities. To achieve our mandate, our correctional facilities must be safe environments for both staff and inmates. This is our fundamental responsibility.
I am the commissioner who oversaw the abolition of segregation and the creation of structured intervention units, or SIUs, in November 2019. This was a historic transformation in the federal correctional system. SIUs were implemented just months before the pandemic, which had a significant and far-reaching impact, including within our prison system. I have been and continue to be strongly committed to the successful operation of SIUs.
To provide a bit of context, there are some inmates who cannot be safely housed in the mainstream inmate population because of the risk they pose to themselves or to others. It is for these offenders, who represent approximately 1.6% of federal inmates, that SIUs were created.
SIUs are not about punishment or causing harm. Quite the contrary, they are about helping inmates and providing them with the opportunity for targeted interventions, programs and health services to support their safe return to a mainstream inmate population as soon as possible. SIUs are meant as a temporary measure to help inmates adopt more positive behaviours that keep the institution as a whole safe and secure.
The SIU model responds to our obligations under Canadian law, and the law is clear. Inmates in an SIU are to be provided the opportunity to spend a minimum of four hours a day outside of their cell, including two hours a day of meaningful human contact. In addition, inmates in SIUs receive daily health care visits by health professionals.
The legislation guiding SIUs recognizes that there are situations when an inmate may be held in their cell for longer, for example, if they refuse to leave. This is their right.
[Translation]
Since the SIUs were established, we have received and continue to receive feedback from stakeholders and advisory committees. In response to this feedback, we have made changes to improve our SIUs.
[English]
We continue to work with the Structured Intervention Unit Implementation Advisory Panel members and the independent external decision makers to share data and review their important findings and recommendations. I want to acknowledge the work they do in helping us make continuous improvements.
I know some of you have previously visited our institutions, but for those who have yet to do so, I strongly encourage you to come and see the work we do first-hand.
As commissioner, and as someone who has worked for the Correctional Service Canada for 40 years, the safe and successful reintegration of offenders remains my priority. I say this a lot: there is no greater responsibility than having the care and custody of other human beings.
I want to close my remarks by acknowledging our employees, who work in some of the most challenging circumstances but remain steadfast in their dedication and commitment to our mission.
Thank you.
The Chair: Thank you, Ms. Kelly. We will begin questions with the deputy chair of the committee.
[Translation]
Senator Boisvenu: Welcome, Ms. Kelly, to you and your officials. Having visited federal penitentiaries in Quebec, I can tell you that offenders in these units are treated very well, often better than in a public hospital. That’s my observation.
My first question has to do with the statement that Senator Pate often makes, that when people are in these units for more than 15 days, it’s akin to torture. Do you agree with the senator’s definition?
Ms. Kelly: It’s clear that the legislation sets out certain expectations with respect to what must be done with offenders in SIUs. First, SIUs have specific staff. There are parole officers, program officers, teachers—
Senator Boisvenu: As I have other questions, I understand that your answer is that it isn’t torture, that they are treated well.
Ms. Kelly: Yes, they are offered programs and interventions.
Senator Boisvenu: Senator Pate’s definition of “disabling mental health issues” in her bill refers to section 37.11 of the Corrections and Conditional Release Act, which refers to refusing to interact with others, engaging in self-injurious behaviour, and showing symptoms of a drug overdose and signs of emotional distress. Do you think this definition is so meaningful that people who are often incarcerated in these units should be transferred to public hospitals?
Ms. Kelly: First, we have about 1,200 health professionals working as a team. Rapid assessments are conducted within 24 hours to identify offenders’ mental health needs. Then we make sure that they’re in facilities that can provide the care they need.
Senator Boisvenu: Based on that definition, how many offenders do you think would be transferred to hospitals, among other places, in Quebec? How much does that represent approximately, in figures?
Ms. Kelly: Are you talking about public hospitals?
Senator Boisvenu: The senator’s intention is to ensure that when someone suffers from a mental disorder in a penitentiary, they are transferred to a psychiatric hospital, such as the Philippe-Pinel National Institute of Forensic Psychiatry. We need a benchmark in terms of numbers. How many offenders would that represent if this bill were to pass?
Ms. Kelly: Correctional Service Canada does have regional treatment centres, specifically to deal with needs that are more acute that offenders—
Senator Boisvenu: My question is more specific. You’ve read the bill, haven’t you?
Ms. Kelly: Yes.
Senator Boisvenu: If this bill is passed as is, how many incarcerated offenders will be affected? That’s the number I want to know, because if these people are transferred to the provinces, it means an additional workload for the provinces.
Ms. Kelly: It depends on the definition of “disabling mental health issues.”
Senator Boisvenu: The definition is in section 37.11 of the Corrections and Conditional Release Act. You know it, it’s your act. Based on that definition, how many people incarcerated in federal penitentiaries are covered by this bill in Quebec, for example?
Ms. Kelly: Ms. Clarke, approximately how many people would be affected?
[English]
Ginette Clarke, Acting Assistant Commissioner, Health Services Sector, Correctional Service Canada: In CSC’s care and custody, we do have a higher prevalence of people with mental health needs. Of course, the impact and the significant symptoms of those mental health needs would vary depending on the person.
Senator Boisvenu: How many inmates would that law affect? I just want a number.
The Chair: I think Senator Boisvenu is making a good point, but if it is not possible for you to craft a number today, could you give that some reflection and share it in writing with the committee? We will be continuing with this bill for some time. Would that be possible, Ms. Kelly?
[Translation]
Ms. Kelly: Yes, we can provide the information.
Senator Boisvenu: Yes, because if we don’t have this data when we’re about to pass a bill, it’s worrying. You have to understand that this is a responsibility that will be transferred to the provinces. We absolutely must have this data.
Thank you, Ms. Kelly.
Senator Dalphond: Madam Commissioner, I’d like to thank you and your team for being with us today.
I would like to follow up on Senator Boisvenu’s questions because I think the facts are important.
You talked about a prison population of around 1.6% that has needs or needs to be placed in special units. Do you have more specific data? Of that 1.6% of inmates, some are incarcerated in these units for their own protection — informers, for example. I’ve already seen someone who was admitted to a special unit for protection, because he had previously been a judge.
Of this percentage, which ones suffer from mental health issues versus those who need to be isolated for other reasons?
Ms. Kelly: I have some data with me. However, the data changes, depending on the number of people in the SIUs. At the moment, we have 200. For the security of the institution, it’s around 40% to 45%. For the inmates’ own safety, it’s a bit high right now. In terms of intervening in an investigation, it’s less than 1%; it rarely happens.
I’m also going to talk about the profile of offenders. The profile is different for the regular population. We did a study on the profile of people who end up or are placed in SIUs. These offenders are more impulsive and less tolerant. They act more aggressively. These are facts we have observed.
We did a study, which isn’t recent, to see what proportion of offenders were incarcerated in these units for mental health reasons. We found that 72% of inmates had no mental health issues on file at the time of their transfer or admission; 18% of inmates required mental health care, so primary care that is provided in the institution where they are incarcerated; 10% of inmates required intermediate care, which is provided in our institutions. When these inmates have acute health problems, the health service gets involved, and that’s when we transfer them to our treatment centres.
Senator Dalphond: How many centres have the resources or capacity to help people with mental health issues? How many psychiatrists and psychologists are available within the system?
Ms. Kelly: We have five regional treatment centres. We have one in each region, and then we can accommodate 650 inmates in those treatment centres. We also have what we call “therapeutic ranges,” where we provide intermediate health care. We have about 300 beds. It’s different for women. We also have a women’s unit at the Rivière-des-Prairies institution. We have 20 beds for women, and we have an agreement with the Philippe-Pinel Institute. We have 15 beds for women and three for men.
Senator Dalphond: Thank you.
[English]
Senator Prosper: Thank you for joining us, Ms. Kelly. I want to recognize your years of commitment and dedication. I’m sure there are some challenges but yet some rewards to that level of service.
I want to continue with the questions around data. I’m curious about those inmates. Can you walk me through what happens with respect to an inmate when they first get into an SIU? Can you tell me what kind of data is collected and what tends to happen through the progression with that inmate within SIUs? More specifically, do you have any data with respect to those who have pre-existing mental health conditions where that has progressed due to being situated in an SIU? Thank you.
Ms. Kelly: Thank you for the question.
An inmate is placed in an SIU if he or she meets one of three criteria: for the security of the penitentiary, their own safety or as a result of an investigation.
Once they are placed in the SIUs, as I said, there are dedicated staff who work with this particular inmate. The first thing, though, is they get a daily visit by a registered health professional, and that is without a barrier. The door needs to be open, and the health professional speaks to the inmate. There are also assessments that are done promptly.
The thing about placing inmates in SIUs is how quickly we take charge of this particular person. Immediately, a parole officer will see the inmate and figure out the reason why they are placed there and then start talking about alternatives. If it is for their own safety and it is because of a conflict with another offender, we actually try to resolve that conflict. We have different approaches that we use. If it is for the security of the penitentiary, then we may look at placing the offender on another range, a unit, or transferring the inmate out.
The other thing that our correctional staff do is that, by law, we have to provide them with the opportunity to come out of their cell for four hours, including two hours of meaningful contact. This is done throughout the day. Even if an inmate refuses the first time, we have an app that tracks when someone offers the inmate time, so we know exactly how many times they are offered and whether or not they avail themselves of the opportunity. We offer inmates the opportunity to come out throughout the day.
Then we work with them. We provide them with targeted interventions and services. Because SIUs are a temporary measure, our goal is to work with the inmate. If it is a question of their behaviour, we work with them so that they adopt more positive behaviour so they can actually stay in the mainstream population, or we work to resolve the conflict that may have occurred. But it’s truly to get them out of the SIU and for them to stay out, so that it doesn’t become a revolving door. That’s our goal.
The Chair: Ever so briefly.
Senator Prosper: You mentioned you have an app, at least with respect to those provided with the opportunity. Does that app also collect data with respect to the duration those inmates are taking of their four hours and having those two hours of meaningful contact?
Ms. Kelly: Yes, it does. Jay can speak more about that, but it’s an app that we developed and improved upon since the implementation of the SIUs. Yes, it does track a number of things.
Senator Prosper: Thank you, Ms. Kelly.
Senator Klyne: Commissioner Kelly, you recall Bill C-83, in many ways the genesis of Bill S-230 which is currently before this committee, and Bill C-83 introduced SIUs, ending administrative and disciplinary segregation. In fact, administrative segregation was abolished with the introduction of Bill C-83 and SIUs. When we were coming down the home stretch, hearing from expert witnesses and panels, of which you were one and probably the key expert on this, I had asked if the required culture and organizational structure existed to support the implementation and execution of SIUs and if there was conviction in terms of executing the plan. I got a very good answer from you. In fact, it was everything I wanted to hear. Taking that, plus the SIUs, we ticked off a lot of boxes as this would be the answer to the ills of the segregation that was happening previously under administrative segregation and certainly disciplinary segregation.
When I reference the genesis of this bill, it’s really, from my perspective, it is probably a failure of the complete implementation execution of the SIUs as planned and proposed within Bill C-83. On the one hand, I would like to ask what went wrong. But that’s not the question I want to ask right now. I would like to one day. It seems like it is an experiment that failed.
How will you ensure that correctional facilities comply with the new requirements outlined in Bill S-230, and what consequences will be in place for non-compliance?
Ms. Kelly: In terms of the SIUs, just to come back to the culture, I would say that we have been able to maintain the numbers at around 200. Actually, in August 2022, we went down and were at 117. I think enormous efforts are being made. There is a lot of dedication and commitment on the part of the staff. We do provide offenders with the opportunity to leave their cells for four hours, which includes two hours of meaningful interaction. Actually, in terms of providing time out of cell and meaningful interaction, in terms of offers, we’re over 90%. But there are offenders that do not avail themselves of the opportunity to come out. This is where we have to work harder with those offenders to find out why — what’s the reason behind not wanting to come out — and what else can we do for them to want to leave their cell.
The other thing, though, which I mentioned at the time, is that we had looked at the data, and, of the number of offenders who are placed in SIUs, there is a greater proportion of those who are close to their statutory release than what you see in the general population. Sometimes, for some offenders, before they are released, they just want some quiet time. They don’t want to get into trouble. They will be going out into the community. That was one thing we have observed.
But like I said, there have been tremendous efforts, dedication —
Senator Klyne: If I can interrupt, I’m not —
The Chair: Senator Klyne, your time is up.
Senator Klyne: I’ll come back to ask the question again.
The Chair: If there is a second round, we’ll get to it.
Senator Simons: My questions are for Commissioner Kelly.
We have heard some distressing testimony from other witnesses about the use of segregation cells that are not officially SIUs but are, rather, makeshift de facto solitary confinement cells where inmates are sometimes kept, and often those are dry cells. The rules that protect you in SIUs don’t apply to them. I wonder what you can tell me about how prevalent that practice is and how you track it.
Ms. Kelly: Okay. We do not have hidden cells. I have heard the testimony. What I can say, however, is that during the pandemic, because we had to use very extensive public health measures — and this was in partnership with the local, regional and national health authorities — we did medically isolate offenders to ensure that COVID-19 didn’t spread to the whole institution. I would say that we were pretty successful. Yes, during that time, there were cells where we medically isolated. Other than that, there are no hidden cells.
What I would say, however —
Senator Simons: Well, I shouldn’t say “hidden,” but makeshift —
Ms. Kelly: Makeshift cells. Yes.
Senator Simons: You are telling us as your testimony that those allegations are untrue?
Ms. Kelly: There are no makeshift cells.
Senator Simons: If you found out that there were, what would your response be?
Ms. Kelly: I would absolutely look into it. I would want to find out why.
Senator Simons: One of the things we heard from Mary Campbell, the former director general of the Corrections and Criminal Justice Directorate, was a warning about the provision in Senator Pate’s bill for a 48-hour hold. She said that you have to be very careful because what prisons will sometimes do in situations like that is hold someone for 47 hours, let them out and then restart the clock for another 48 hours. What do you make of that suggestion? Is it the practice in your institutions, when there is a time limit, to play those kinds of games and keep restarting the clock?
Ms. Kelly: No.
Senator Simons: Why do you think that people who are familiar with prisons would tell us these things?
Ms. Kelly: Because at one point — and this is something that we changed with administrative segregation — that was an issue that had been raised. That was years ago. A change was made, and that has not happened with SIUs.
Senator Simons: I have visited with Senator Pate the women’s prison in Edmonton, twice now. The cells that were segregation cells have new signs on them that say they are SIUs. Is there anything different about the cell? When you say that you have eliminated segregation, how is the experience different for the inmate? Is it the four hours that they are out? Is it the visits from the nurse or the counsellor? Apart from the change in the label, how is the experience different?
Ms. Kelly: The experience is different in that, with segregation, the inmate was basically no longer able to achieve the objectives set out in the correctional plan. It almost stopped. But now, because we have dedicated staff and targeted interventions, the inmates can continue to meet the objectives that are specified in their correctional plan. Yes, like I said, there are dedicated staff who work with those inmates. There are targeted interventions. There are health professionals who visit them. There is a team, basically, that works with them. Again, we have programs that we offer in the SIUs as well. So, that’s different. We work with the inmates so that they can reintegrate into a mainstream population.
Senator Simons: How many of those would be dry cells, or is that on a case-by-case basis?
Ms. Kelly: Dry cells are completely different from SIUs. Dry cells are when we believe that an offender has ingested drugs, for example, and we believe it’s in their digestive system. Then we can place them in a dry cell, but we actually monitor them very closely. It has to be reported.
Senator Simons: So that’s not being done —
The Chair: Your time is up, Senator Simons.
Senator Simons: Okay. Thank you very much.
[Translation]
Senator Dupuis: Thank you to our witnesses. Ms. Kelly, you said that according to your statistics, 1.6% of inmates are currently in SIUs. Can you break down that 1.6%, which represents a few hundred people? How many men and women? Are there any racialized people, Indigenous people?
Ms. Kelly: Yes, I have the breakdown in front of me. Today, there are 200 inmates in our SIUs, 197 men and 3 women. Of that number, 79 are Indigenous men, so we’re at 39.5%. There are no Indigenous women. In fact, I have to say that, at one point, the population was 47%, and now it’s at 39.5%.
There are 25 Black men, representing 12.5%, and no women.
As for age — because we also take age into account — 47% are between the ages of 25 and 34.
Senator Dupuis: Can you tell me if the conditions inside the SIUs are exactly the same depending on the person’s gender? The Correctional Investigator has already documented that there were specific rules for dealing with a number of realities that required segregation for men, and which were defined. As a result, inmates knew what to expect if they behaved in a certain way.
However, there were really no criteria for women, which meant that each inmate was left to the goodwill or judgment of her personal situation by the person responsible for her in the service.
Are the conditions, criteria and rules the same in the units that currently receive men and women?
Ms. Kelly: The criteria are the same, but it’s a more supportive environment for women. So even before women were placed in an SIU, depending on their behaviour, they could be placed in this kind of environment where there’s a little more supervision. It’s like a middle ground for women.
Senator Dupuis: Is there anything we haven’t asked that you could provide us with information on?
There are cell types and unit types that vary depending on the types of realities you encounter. Do you have a list of all the possible categories, including SIUs, bare cells, and so on, so that we can get a better idea of the exact reality someone may be dealing with?
Ms. Kelly: In a penitentiary, we’re dealing with 260 different categories — what we call “gangs.” So you can understand how difficult it is to manage populations.
If I take Stony Mountain as an example, there are over 800 inmates in the institution. There’s a large Indigenous population and also many members of different gangs who can’t mix. We have to manage this situation.
It’s a fact that, in an institution, you’re going to have units with inmates who can live together, and other units with other kinds of populations.
However, we have SIUs, and as far as bare cells are concerned, they aren’t used routinely. We have to be notified every time someone is put in a bare cell. It’s clear that this is monitored closely.
Senator Dupuis: If I correctly understand the message we received from the correctional officers’ union, needles are common in institutions. I’m surprised by your reply that there aren’t that many in bare cells and that they aren’t needed as much. There seems to be a big problem. Are people who say that wrong?
Ms. Kelly: Right now, we have a drone problem, and unfortunately, it involves drugs and weapons. So it’s a problem.
As for needles, they aren’t everywhere in the institutions. It’s a needle exchange program; people have to meet certain criteria, they have to consult health services. We do prevention, and we give them a kit that they leave in their cell. However, needles aren’t everywhere, and we’ve never had an incident.
Senator Dupuis: Thank you.
[English]
Senator Jaffer: Thank you, Ms. Kelly and your team, for being here.
Ms. Kelly, I would just like a general impression. You look after the whole institution. That is under your responsibility, is it not?
Ms. Kelly: All federal institutions.
Senator Jaffer: Federal. And the employees of the federal institutions are under you?
Ms. Kelly: That’s right.
Senator Jaffer: Do you teach them how to respect prisoners? Is there anything, under your guidance, where there are discussions as to how the prisoners have to be treated? Because they are also human beings.
Ms. Kelly: Absolutely.
Senator Jaffer: I am seething. I’m just trying to stay in control. Someone just sent me a website of your correctional officers. I’m not sure if you can see it. You probably won’t. But it says, “Stupid people keep me employed.” This is a website from a correctional institution and from the employees’ union. Have you seen it?
Ms. Kelly: Senator Pate actually just mentioned it to me and showed me.
Senator Jaffer: What do you think of that?
Ms. Kelly: That’s not a reflection of the professionalism of our employees.
Senator Jaffer: So what are you going to do about it?
Ms. Kelly: I’m going to have a discussion with the president of UCCO SACC CSN, but as I said, but we have employees like myself who have spent years and years with CSC —
Senator Jaffer: I know that. But what are you going to do about this?
Ms. Kelly: Right now, we’re doing an audit of our culture —
Senator Jaffer: No, no. What are you going to do about this?
Ms. Kelly: About that? I’m going to speak with the president.
Senator Jaffer: And then? How are you going to punish these people? This is a website. How do you think prisoners and their families feel? I am so angry. How do prisoners feel? You call them stupid people. These are the people who, day and night, are looking after you. I am actually very surprised that you are taking this so calmly. Do we call prisoners stupid people?
Ms. Kelly: No.
Senator Jaffer: You are not telling me. You say, “I’m going to discuss it.” That’s not good enough. What are you going to do, specifically?
Ms. Kelly: Again, I was just seized with this issue, so I am going to —
Senator Jaffer: But you are a person who should have known about this. But okay, you just saw it. But I, as a person not in the system — an outsider — am so upset with this. You say you will speak to the president. Is that all you are going to do?
Ms. Kelly: No. First of all, I’m going to read what they wrote, and then —
Senator Jaffer: I’ll tell you what they wrote —
Ms. Kelly: — and I’m going to take action —
Senator Jaffer: — “stupid people” —
The Chair: Senator Jaffer, we want to hear what Ms. Kelly has to say in response to your question.
Ms. Kelly: As I said, I just want to repeat that this is not a reflection of the professionalism of our staff. We have training programs, and we discuss respect. Respect is really important in the organization.
Senator Jaffer: Yes, but what are you going to do about this situation? Are you going to reprimand them? Are you going to fire them? What are you going to do?
Ms. Kelly: This is UCCO SACC CSN. I’m going to speak with the president of the organization. It doesn’t reflect the professionalism of our employees.
Senator Jaffer: But it’s obvious here, showing your employees are behaving in this way. It does show some kind of professionalism.
The Chair: My suggestion on this point, Ms. Kelly, is that if there is some follow-up you want to undertake — and I think there is a sentiment around the table that there should be — would you be prepared to share this with us in a timely matter?
Senator Jaffer: I would like to go further. The chair has taken my questions, but I would like to go further and ask if you can let us know what you did in this situation.
Senator Boisvenu: We are studying the bill on that. We have to study a bill.
Senator Jaffer: This is my privilege. These are my questions.
Senator Boisvenu: No, we have to study a bill.
Senator Jaffer: Yes, but this is part of that.
The Chair: I think the question has been asked and answered by Ms. Kelly. She will tell us what follow-up she undertakes here.
Ms. Kelly: For me, though, it’s important to know that this is not a reflection of the professionalism, the dedication and the commitment of our staff to the work that they do in very challenging circumstances.
The Chair: Thank you, Ms. Kelly, although you have said that two or three times in this round of questions.
Senator Batters: With respect to that last exchange, frankly, I’m a little shocked to not hear come out of your mouth right at the start of this whole discussion that you will launch an investigation. Wouldn’t that be the very first thing that you should do to find out what’s going on and to try to fix it? We will look forward to hearing more about that.
Last week, in this committee, Ms. Campbell, former Director General, Corrections and Criminal Justice Directorate, Public Safety Canada, highlighted that the 48-hour limit might push Correctional Service Canada to have adequate resources and to better plan the management of detainees and SIUs, particularly those with special needs or mental health issues. Does Correctional Service Canada believe that the implementation of a 48-hour limit as proposed by Bill S-230 could actually encourage better organization and preparation in advance for the management of detainees and improve the detention conditions and care for vulnerable inmates?
Ms. Kelly: For us, as I mentioned before, our goal is to work with the inmate that’s in the SIU so that they can return to a mainstream population as soon as possible. In terms of a 48-hour cap, in some cases, there may not be a viable option for the inmate to be released back within 48 hours. If there was a 48-hour cap, that could actually jeopardize the safety of the inmate.
Senator Batters: We also heard from Ms. Campbell last week that sometimes in these types of situations, for example, if a 48-hour cap was put into place, sometimes there are things to get around that. They count 47 hours and then they do something — transfer or what have you — in order to be able to restart the clock. What’s your impression of that sort of situation?
Ms. Kelly: No. I was surprised. I tried to explain that.
Senator Batters: That doesn’t happen?
Ms. Kelly: No. That doesn’t happen. However, there are inmates who go into a SIU and we find a viable option, for example, transfer to another institution. They tell us, “Yes, I’m going to transfer. I can go into the mainstream population.” We’ve checked with everyone, with our security intelligence officers, and everything is fine. But they get to that institution and then they want to go back into a SIU. That happens.
Senator Batters: When you were speaking earlier about this two hours a day of “meaningful human contact,” what does that mean? Are you looking for a definition?
Ms. Kelly: We have defined it. It is “opportunity for human interaction with others that is conducive to building rapport, social networks, strengthening bonds with family and other supports,” and it includes but is not limited to “visits, participation in programs, interventions and services that encourage the inmate to make progress towards the objectives of their correctional plan.”
In institutions that I have visited, for example, teachers have started art programs for the inmates in the SIUs. They go out and they do some arts. People have been —
Senator Batters: They go out of the prison?
Ms. Kelly: No, out of their cell.
Senator Batters: Okay.
I need to ask another question. When you talked about there being a health professional to see these inmates at least once a day, one health professional per day, who would that include as health professionals? How often would that be a nurse or a lower-level health provider as compared to a doctor or a psychiatrist, that sort of thing? Am I correct in assuming that that would not ever necessarily include someone with actual mental health training?
Ms. Kelly: I will let Ms. Clarke reply.
Ms. Clarke: We do have a comprehensive assessment and health monitoring process for individuals in SIUs. The daily visit is typically done by a registered nurse, although it could be done by another registered health care professional. In addition, we provide mental health assessments at both day 14 and day 28. Those would be done by a registered health professional. That could include a psychiatrist, a psychologist, a social worker or a registered psychiatric nurse.
Senator Batters: They would not get a mental health assessment until day 14?
Ms. Clarke: No, they would be referred immediately, within 24 hours of transfer to the SIU, and be seen within that first day by the nurse as part of that daily monitoring. If there is some indication that an assessment needed to be done more quickly, or if some need is identified, that assessment could be done as soon as possible in response to any identified need. The end time frame to complete that is within that. It could be done at any period of time based on any assessed or identified need.
Senator Batters: And the registered nurse that —
The Chair: Your time is up, senator.
Senator Pate, the sponsor of the bill, is next, and there won’t be time for a second round.
Senator Pate: Thank you for joining us.
First, I want to get on the record that the image Senator Jaffer was talking about is of correctional employees stuffing envelopes with this, which I showed you on Tuesday, so a couple of days ago. We have written an objection to the union, and I copied you, as I said. I wanted to make sure that’s on the record.
I want to come back to something that Senator Simons and others have raised, which is the definition of segregation and the conditions of confinement. In the prisons both I and other senators have been in since the passage of this bill and since the COVID restrictions were lifted, there have been units where people were held in conditions of confinement that I would argue are segregated conditions. They’re sometimes called other things, such as voluntary limited association ranges, step-down units, detention, temporary detention or medical observation. That’s what the Correctional Investigator is referring to in their report. I understand they’ve made recommendations to you. I know we won’t have time for you to elaborate on it, but could you send in writing what your responses have been to their assertions of that?
As well, could you reply to the assertions by the ministerial advisory body that there’s a concern about the number of people with mental health stays and the fact that the causal direction for long stays is contributing to mental health deterioration? In their annual report of January of this year, they talked about the relationship between mental health and multiple stays. Their argument is that the explanation or the reason that it is because they’re refusing doesn’t hold up. I’m interested in your response in particular to their recommendations with respect to those areas. They are saying that you are no doubt aware of this data, and they provide information in their tables, particularly appendix table 6. Could you provide those in writing?
Ms. Kelly: Okay.
Senator Pate: In addition, at the Finance Committee, I asked about the funding in terms of corrections received for Bill C-83 to specifically hire mental health advocates and to contract external beds. The only beds that were alluded to were the pre-existing Pinel beds, and there are no other beds. Again, if we don’t have time for you to do it today, please provide this in writing. Where have those budgetary allocations gone, and who are the mental health advocates who have been hired? To my knowledge, there have been no external mental health advocates and no external beds in addition since Bill C-83. An accounting of that would be extremely helpful.
The Chair: I want to confirm with Ms. Kelly that she could provide those responses in writing.
Ms. Kelly: Yes, we will provide those.
Senator Pate: In terms of the mechanisms, what is happening? One of the things we have been hearing from both the Correctional Investigator as well as prisoners inside and staff is that because the resources have been allocated within the prisons to structured intervention units, there are many other areas where people are being held in their cells longer than the prescribed periods for SIUs. We understand that those grievances have been coming in. Could you provide us with the numbers of those incidents that are happening? What are the approaches going to be to ensure appropriate resources and time out of cell are being provided in other areas? We’re hearing not just the term “ghost cells” but about the number of lockdowns that are occurring. The spillover effect of so much focus on the SIUs is that there are many other members of the population who are not getting access to programs, services, assessments and time out of cell.
Ms. Kelly: That may be a bit more difficult. What you’re talking about is, for example, when a drone is dropped in the yard and there’s a package full of fentanyl, weapons and SIM cards. Obviously, we have to have inmates return to their cells and do a search. That happens, and, again, that’s a real challenge for CSC. We’ll have to think how we can provide you with the information that would be useful. We have those types of incidents that occur.
Senator Pate: An example would be our last visit to Collins Bay. A number of prisoners and staff indicated it was the first time groups of prisoners had been able to meet so effectively. Many are alleging that we don’t really have general populations anymore and that it was the first time people were allowed out of cells. Even though there had been a drone drop recently, the recognition was that the risk threat assessment that was supposed to be done was that there was no risk to these populations, but some of them hadn’t seen each other for months and a couple said years.
It strikes me those are opportunities for people to have interaction that we know decreases isolation, decreases tensions and allows for some of the dynamic security measures that I know are part of your objective within the Correctional Service Canada. Certainly, allegations are that COVID-style measures continue to be used, and sometimes the allegations are that it is because of COVID or because of health concerns, but in fact, that doesn’t hold up when they are challenged. If you could provide us with those data as well, that would be extremely helpful.
The Chair: Could we interpret that, Ms. Kelly, as a description of the kinds of things that Senator Pate is hoping that you could provide feedback on in your response? Would that be acceptable?
Ms. Kelly: I have taken notes, and we’ll see what we can provide, yes.
The Chair: I think we have exhausted our time in our dialogue with Ms. Kelly. I want to extend thanks on the part of the members of the committee, in particular to the commissioner for coming and joining us and fielding our questions today.
Ms. Kelly: Thank you very much, and if you would like a visit, please let us know.
The Chair: Honourable senators, the second panel is composed of Jennifer Metcalfe, Vice President, Canadian Prison Law Association; and Vibert Jack, Litigation Director, British Columbia Civil Liberties Association. Ms. Metcalf and Mr. Jack are joining us by videoconference. Welcome and thank you very much for joining us. I will invite you to deliver five minutes of remarks, to be followed by questions from senators.
Jennifer Metcalfe, Vice President, Canadian Prison Law Association: Thank you, honourable senators, for inviting me to speak with you today. I am speaking to you from the unceded territories of the Musqueam, Squamish, Tsleil-Waututh and Kyuquot Nations. I use she/her pronouns. I’m the vice-president of the Canadian Prison Law Association and the executive director of Prisoners’ Legal Services in B.C.
The CPLA supports this bill. We agree it is important that people in all forms of solitary confinement, including in dry cells, lockdowns and suicide observation cells, have procedural protections.
We are also concerned that people experience solitary-like conditions through institutional movement routines in many maximum security prisons that can be more restrictive than SIU, so the comparison to the mainstream population may not be helpful. We recommend expanding protection against isolation by adopting the languages of the U.S. End Solitary Confinement Act, which would require 14 hours per day out of cell in shared spaces, including at least seven hours of programs and education. Under this bill, cell confinement for de-escalation or lockdowns is limited to four hours per day and 12 hours per week.
We support health care assessments by independent clinicians and transferring people with disabilities to a hospital or a mental health facility, if they wish. We are especially concerned that people with mental health disabilities are being held in isolation, and CSC-employed health care staff are not advocating for their patients to be removed from isolation when their mental health deteriorates. Research by doctors Anthony Doob and Jane Sprott found that CSC health providers recommend removal from SIU in only 0.15% of cases, despite their estimation that 28% of SIU stays constituted solitary confinement and that 10% of stays constituted torture under the UN definition.
In our view, disabling mental health issues should go beyond a DSM-5 diagnosis and should include the symptoms of solitary, including self-harm, suicidal ideation and trauma that results from uses of force. We have clients who are engaged in regular self-harm and suicide attempts who are turned away from CSC regional treatment centres.
Not everyone with a disabling mental health disability would be suitable for detention in a hospital. We recommend amending section 29.02 to include community-based mental health services to allow people to be placed in health care environments that are most appropriate for them.
The CPLA supports judicial oversight of placement in an SIU of more than 48 hours. CSC and Independent External Decision Maker, or IEDM, reviews do not allow people to meaningfully exercise the right to counsel. CSC and now IEDMs refuse to share documents with counsel for reviews. Judicial oversight would address this problem, among others.
Any review of SIU placements must have the authority to order alternatives besides being returned to the mainstream population of a maximum security prison, which has comparable levels of isolation to SIU.
The CPLA supports expanding opportunities for disadvantaged groups to serve sentences in the community. We suggest adding poverty to the definition and recommend that legislation require at least equal funding for community-based alternatives to prison. This could be done through a significant shift of funding from CSC to community-based services.
The CPLA also supports judicial oversight of unjust administration of the sentence. Joey Toutsaint’s situation provides a good example of the need for this amendment. He spent 2,180 days in segregation and continues to be isolated since the regime changed. He is unlikely to be able to get out of maximum security because he experiences the normal responses to isolation and trauma, which include anxiety, angry outbursts, depression, paranoia, self-harm and suicidal thoughts. Joey Toutsaint is in same position as many other Indigenous men, who are twice as likely to be classified to maximum. Indigenous women are four times more likely to be maxed, and Indigenous people are less likely to be released on parole. Joey Toutsaint’s continued imprisonment is not fulfilling the purpose of CSC. It is not safe or humane, and he is not being assisted in his rehabilitation or reintegration into the community.
The ability to apply for a reduction of sentence to a court for the reasons set out in the bill would significantly improve the basic rights of people in prison.
Thank you.
The Chair: Thank you very much, Ms. Metcalfe.
Vibert Jack, Litigation Director, British Columbia Civil Liberties Association: Good afternoon, senators. Thank you for having me today. I am joining from the unceded territory of the Musqueam, Squamish and Tsleil-Waututh peoples.
My name is Vibert Jack, and I am the litigation director for the B.C. Civil Liberties Association, or BCCLA. The BCCLA, along with the John Howard Society — whom I believe you heard from in an earlier meeting — was responsible for one of the successful legal challenges to administrative segregation that has in large part brought us to this discussion. In addition to our case here in B.C., there was also the case brought by the unaffiliated Canadian Civil Liberties Association in Ontario. I’ll also note that, prior to joining the BCCLA, I worked for seven years providing legal aid representation directly to incarcerated individuals throughout British Columbia. Therefore, my comments and answers will be informed by that experience as well.
Today, I would like to urge you to adopt a human-rights-based approach to your consideration of this bill. To centre the question: What is required to respect the rights of people who are incarcerated?
In our view, the best starting point is to revisit the directions provided by our courts and to recognize that they are simply not being followed. When Bill C-83 was being considered, we appeared before the Senate to warn that it would not put an end to the Charter violations outlined in the case law. As I know you have been hearing, our concerns have proven to be well founded. So what did the courts say about the rights of people subjected to solitary confinement?
There must be an independent review. In part, this means that the reviewer has the power to remove someone from solitary confinement in a timely fashion — a power that IEDMs lack.
There must be a right to counsel. There is both a statutory and constitutional right to be represented by counsel at a review hearing.
People living with mental illness should not be subjected to solitary confinement. While the courts left it to policy-makers to define the boundaries of this principle, they found that there had been a failure to do so under the administrative segregation regime.
Solitary confinement must not be used in a discriminatory manner. Canada conceded and the B.C. Court of Appeal accepted that Indigenous people had been subjected to solitary confinement in a discriminatory manner.
Finally, there must be a time limit. The Court of Appeal for Ontario set a hard cap of 15 days, consistent with the Nelson Mandela Rules. The B.C. Court of Appeal refrained from providing a specific limit but found that prolonged or indefinite solitary confinement could not be allowed.
I want to stress that these requirements represent the bare minimum needed to protect the Charter rights of incarcerated people.
The BCCLA fully supports the intent and much of the substance of Bill S-230. The addition of judicial oversight is very welcome, as the IEDM model has proven itself to fall short of the requirements laid out in the case law for independent review. Portions of the bill targeted at providing mental health assessments and alternatives to custodial placements would create important tools to keep those with mental illnesses out of solitary confinement and to prevent the disproportionate use of solitary confinement for other vulnerable groups. The potential for sentence reductions creates a meaningful remedy for rights violations related to solitary confinement or otherwise.
At the same time, we say the language of the bill still does not go far enough to prevent the unconstitutional use of solitary confinement. Based on its definition of a structured intervention unit, the bill does not seem to address cases of solitary confinement when it is applied to the mainstream population as a whole, such as through lockdowns, modified routines or potentially even overly restrictive general movement routines. As we have already seen in response to the introduction of SIUs, any such gaps in oversight within a prison will undoubtedly be filled with more abuses. It is critical to understand that solitary confinement is not defined by a location but rather by a lack of meaningful human contact.
Furthermore, and perhaps most importantly, in its current form, Bill S-230 fails once again to implement the core requirement of international and domestic law: a cap on the duration of solitary confinement. The lack of a time limit to prevent prolonged or indefinite solitary confinement means that the legislation will remain unconstitutional.
Thank you.
The Chair: Thank you, Mr. Jack, and thank you both for being so disciplined in your presentations. We will turn to questions and comments from senators.
[Translation]
Senator Boisvenu: I’d like to welcome our guests.
My first question is for you, Mr. Jack. Have you ever worked in a psychiatric hospital?
[English]
Mr. Jack: No, I have not.
[Translation]
Senator Boisvenu: Did you know that solitary confinement is commonly used in hospitals to protect patients or staff?
I’m thinking of the Philippe-Pinel National Institute of Forensic Psychiatry, among others, where patients can be kept in solitary confinement for a month, depending on their level of dangerousness. You know that this is done in hospitals.
[English]
Mr. Jack: Yes, I’m aware that solitary confinement happens in hospitals.
[Translation]
Senator Boisvenu: So if the purpose of this bill is to prevent patients from being put in solitary confinement as much as possible and to transfer them to psychiatric hospitals where they are in solitary confinement, then what problem are we trying to solve?
[English]
Mr. Jack: I think that, first of all, you’re less likely to be placed in solitary confinement in a hospital than in a prison because the staff in the hospital are trained to deal with people with mental illnesses and are more prepared to find alternatives. At the same time, if you want to amend the bill to include greater restrictions on solitary confinement in a hospital setting, I would certainly support that as well. I haven’t put too much thought into it.
[Translation]
Senator Boisvenu: Did you listen to Ms. Kelly’s testimony earlier about the quality services offered in penitentiaries for people with mental health issues?
[English]
Mr. Jack: I did listen to it, yes.
[Translation]
Senator Boisvenu: Okay, thank you.
[English]
Senator Prosper: Ms. Metcalfe, you mentioned the need to have a certain sense of independence as it relates to health assessments because you mentioned there was a likelihood that there wouldn’t be an advocate for an inmate to be removed from an SIU. Then you got into a case where you mentioned a particular individual who spent over 2,000 days in isolation, and then you got into certain details in terms of that kind of isolation and its overall impact on the mental health conditions of that inmate in that they made things worse than what they were before. Can you extend upon that? I’m curious about getting further specifics on the proportionality of the amount of isolation in SIUs to pre-existing mental health conditions. What is the nexus there?
Ms. Metcalfe: Thank you.
We obtained an independent psychiatric assessment for Mr. Toutsaint as part of an injunction to have him removed from what was then segregation to a regional treatment centre. The independent psychiatrist, Dr. John Wesley Boyd, a professor at Harvard and psychiatrist at the Cambridge Health Alliance, stated in his assessment:
Mr. Toutsaint’s major depression and PTSD are so abundantly clear that I have to wonder why these diagnoses do not appear in any of the medical records I have reviewed about Mr. Toutsaint. I cannot help but wonder if mental health clinicians working in the Canadian prison system are asked not to use these diagnoses in their written reports.
So we have a real concern about the lack of independence of health care providers in federal prisons. We are concerned that health care providers are influenced by dual loyalties to their employer. They come from a risk-assessment perspective, which is looking at people’s behaviour instead of looking at people’s health care needs.
When you look at the symptoms of post-traumatic stress disorder and the symptoms of solitary confinement, they produce the same behaviours that SIUs are intended to address. Therefore, in our view, SIUs are not protecting the safety of people. They are increasing the risk of safety of people. When people are in that kind of isolation, they experience paranoia and hypervigilance. They come out and have legitimate fears. It’s not just paranoia. People are afraid to come out of their cells because they are afraid of being beat up by correctional officers.
To address what Anne Kelly was saying about staff misconduct and how they are addressing the culture, we have clients telling us many times that correctional officers encourage them to kill themselves and sometimes give them razors.
Senator Prosper: Thank you, Ms. Metcalfe, for providing that.
I am curious if you can add anything to your point of having a health practitioner doing an assessment, Part of an institution might be averse to looking at risk considerations in terms of the general health and welfare of the inmates themselves. Do you know much about the types of methodology of assessments? What we heard from Ms. Kelly earlier — I think she used the term “registered.” Do you know much about the qualifications of those individuals doing those health assessments in institutional settings?
Ms. Metcalfe: I don’t. We have some anecdotes of people who have been in the odd circumstance where our clients receive counselling or mental health supports, and sometimes that is by people who have no credentials. The results of that have been pretty terrible.
I’m pretty shocked to hear Ms. Kelly’s statistic about the number of people who are assessed with having mental health concerns at admission. I made a note of it, but I can’t find it now, but it was very small for men. I think the concern is that people are just not being diagnosed. There is a real under-diagnosis of brain injuries and FASDs that are just not being considered in the way that people behave, so people are punished for having mental health disabilities instead of acknowledging that certain behaviours might be caused by a disability and helping them to learn the symptoms of their disability and how to better respond to triggers and things like that.
Senator Klyne: I’ll ask the same question of both witnesses, Ms. Metcalfe and Mr. Jack. Do you have any concerns that the correctional facilities will be able to comply with the new requirements outlined in Bill S-230?
Ms. Metcalfe: Judicial oversight is really essential. Lack of compliance has been an ongoing problem for Correctional Service Canada, and we really need to have the courts weighing in on and enforcing the rules. In prisons, rules are everywhere, but the rule of law is absent.
Mr. Jack: I have more than concerns; I have no doubt that the prisons will not comply with these laws because they have a history of not complying with laws.
When you were asking questions of Commissioner Kelly earlier, many of her answers, when you asked about what’s happening in the prison, her answers were that “the law says this” or “the law says that.”
In the BCCLA case, they talked about a culture of deference in CSC where wardens and administrators give deference to the front-line staff. The front-line staff say they’re following the rules, and the wardens just take them at their word and discount the word of the prisoners. Then, when it gets to the regional or national levels, those offices take the warden’s word and give deference to the wardens and correctional managers that are running the prisons.
So having laws and rules is not enough in the prisons. You need oversight. I agree with Ms. Metcalfe that judicial oversight is the best approach.
Senator Klyne: Thank you for those answers.
Ms. Metcalfe, in referencing judicial oversight, would you say that that should replace the IMED?
Ms. Metcalfe: I’m sorry, replace the IEDM?
Senator Klyne: There was a group that I thought was called IMED. I can’t remember what it stands for, but Senator Pate might know. They respond to concerns that arise. They are supposed to be independent to be able to intervene. It seems that might be failing.
Ms. Metcalfe: From our office’s perspective, it is failing, partly due to the fact that they don’t have their own administrative supports. They rely upon Correctional Service Canada staff to do that administrative report. Initially, they were sharing documents with us in advance of hearings and sharing their decisions, which is really essential to Prisoners’ Legal Services’ ability to provide legal aid to people in SIU. Recently, they have been saying that that is an obligation on CSC, and then CSC takes a position that it is the “offender’s” responsibility as part of this offender accountability kind of mindset where they treat lawyers as third parties and the person in prison is expected to share documents. For people who have no access to e-mail, photocopiers and computers, and who are often experiencing the symptoms of isolation and other mental health disabilities, it’s really challenging for them to know what to share. They don’t get our callback requests. They don’t have adequate access to phones. They don’t know what to share. They would have to fill out another form to have things faxed to us. They may have to pay for the faxes, which has been temporarily suspended. There is a real issue with access to counsel.
We have also been recently restricted from visiting clients at Kent. They have put so many tight parameters on visits that it’s impossible for us to go and visit with more than one person. It’s four hours of driving in one day for us to go to Kent. There is no access to counsel, so those reviews are then meaningless. We can’t show up to a review without having reviewed the documents or sometimes spoken to our clients or received instructions. Having judicial review of those placements would eliminate that problem. The courts respect the role of lawyers, and there would be no issue with disclosure and receiving decisions.
Senator Klyne: Thank you.
Senator Simons: This segues nicely into where I wanted to go. When I was an English student many years ago, we learned about the premise of the unreliable narrator who is the person telling the story and you can’t know, as a reader, whether they are telling you the truth or not. I’m feeling a bit like I’m back in English class, because we have the most senior people from Correctional Service Canada telling us that there are no hidden cells, and then we can see in the correctional investigator’s report from 2021-22 that it says that there are hidden cells where prisoners are kept in solitary confinement-like conditions for weeks on end. When you are speaking to your clients, people might say that they are unreliable narrators. They are in prison because, you know, they dishonest and they are not people on whose word we can rely. So how are we supposed to know where the truth lies when we hear reports of extraordinary human rights violations and then we hear reassurances that none of that is happening? Do you have any wisdom to share about how is one supposed to judge from the outside?
Ms. Metcalfe: Thank you.
Prisoners’ Legal Services speaks with about 1,000 people in prison each year, and we help people with about 3,000 issues each year. We have a very good finger on the pulse of what’s happening in the institutions. When we hear one person telling us that an officer used racist slurs against them or that an officer told them that they should kill themselves or that officers are covering their name badges or wearing thin blue line patches, we might question the credibility of that report, but when we hear it on a regular basis from multiple people in different units who don’t know each other, it makes us believe those really hard to believe claims about abuses and about the level of isolation.
Commissioner Kelly talked about how they have the app that tracks time out of cells. We asked our clients in SIU at Kent about how often they are offered time out of their cell, and they say that they are offered time out of cell in the morning, maybe at 7:00 a.m. when maybe they are not quite awake or they are not in the mood or they haven’t had their coffee yet, and they are not offered more opportunities throughout the day. They have explained that the app records the timing of events that take place where there might be opportunities to participate in programs or other interactions, so they record them at the time that the event takes place, not the time that someone is offered the opportunity to participate. I think that could explain some of those discrepancies in evidence as well.
Mr. Jack: You mentioned the Correctional Investigator’s report. There are the advisory panel reports as well. Those are independent third parties that you can trust, and the information is very clear in there that these problems persist.
I would also point you back to the case law. We have courts whose job it is to listen to evidence from different parties and figure out who is telling the truth. In the BCCLA case, CSC was adamant that solitary confinement wasn’t happening, and if you read that decision and the other decision, it’s very clear that they are not telling the truth about that.
When an organization like CSC doesn’t tell the truth over and over again, I think it’s fair to assume that they are going to continue in that pattern. Earlier, Commissioner Kelly was asked about this website about “stupid people keep me employed,” and her response was that it doesn’t reflect the professionalism of CSC employees. When faced with clear evidence, she is still denying it. It’s kind of inexplicable, but I think that is just the culture of CSC — to deny and to refuse to take accountability for their actions.
Senator Simons: Thank you very much.
Senator Batters: Thanks to our witnesses for being here today.
I’ll pose my first question to Ms. Metcalfe. Do you think there is a need to remove certain detainees from the prison population for reasons of dangerous and destructive behaviour? Do you think that the 48-hour limit in Bill S-230 is sufficient to ensure the safety of the entire prison population? I’m wondering what length of stay in an SIU you would consider appropriate for effectively addressing dangerous and disruptive behaviour while still preserving overall safety in prison.
Ms. Metcalfe: The evidence shows that solitary confinement is harmful to people who have pre-existing mental health issues from the outset. The Francis decision found that no amount of time in solitary confinement is appropriate for someone with a pre-existing mental health disability.
In terms of dealing with challenging behaviour, I think the bill that’s been introduced in the United States that puts in a limit of four hours per day for a cool-off period is sufficient to address any kind of concerns about someone’s immediate risk. Any longer than that, we risk causing the kind of harm to people that just results in more violence and mental health challenges.
Senator Batters: Thank you.
My next question is for Mr. Jack. What do you think about the risks to life and safety of inmates, especially those who may have been threatened within the prison population, if a court is unable to process an extension request within the given time frame? Do you think that delays in those decisions could expose those inmates to increased dangers? What protective measures would you recommend to mitigate those risks?
Mr. Jack: I can’t really speak to the likelihood of delays. I’m not too familiar with the court procedures. I assume that they would be hearing these on an expedited basis and they would be taking precedence.
If there is a delay, in my experience, because these things happen with the current review process and the reviews that happened in the previous administrative segregation regime as well, the reality in practice is that the person will just remain in the SIU until the review can happen. In terms of procedural protections around that, it would be up to the courts to deal with that and try to get the hearings done as quickly as possible. I don’t expect that prisons will be putting people in a position where they are going to be in danger because of administrative delays. I don’t think that is realistic.
Senator Batters: Yes, we hope not. As we heard from Michael Spratt, who has frequently testified at our committee, he does think there could be strains on the superior courts that would need to deal with these issues.
Thank you very much to both of you for your answers.
[Translation]
Senator Dupuis: I’d like to thank the witnesses for being with us today. I have two questions for you.
In the statistics that Ms. Kelly gave us earlier, I was surprised to learn that 45% of the people placed in structured intervention units for security reasons, either as a result of an attack on the security of the institution, when the concern is really the safety of Correctional Service Canada and its institutions. Slightly more people are placed in SIUs because of concerns about their own security.
In your work, do you see a difference between the realities faced by people who are placed in SIU to ensure the security of the institution versus those who are placed there, at least as judged by Correctional Service Canada in any case, for their own safety?
[English]
Ms. Metcalfe: The United Nations considers isolation of more than 22 hours a day to constitute torture for someone who has a pre-existing mental health condition, or cruel treatment, or for more than 15 days.
If anyone is in those conditions voluntarily, I don’t think you can really call that voluntary isolation. If people are self-isolating, which is one of the symptoms of prolonged solitary confinement, they need to be put into a different environment where they do feel safe. A lot of our clients do not feel safe because they are afraid of having uses of force against them by correctional officers. They are afraid of being assaulted by other people in prison, which we hear constant reports that correctional officers are facilitating. They call it double dooring. The symptoms of solitary confinement and trauma make people hypervigilant and afraid for their safety.
We really need to be treating those symptoms of people like Joey, who has spent more than 2,000 days in segregation, to help him to understand those triggers and to be in an environment where he can interact with other people who he feels safe with. That’s the job of CSC, to manage populations in ways that people are safe and that they feel safe.
Might I might address a prior question about forensic psychiatric hospitals? It is related to this. Would that be okay?
Senator Dupuis: Yes.
Ms. Metcalfe: Thank you.
I haven’t worked in a forensic psychiatric hospital, but we have visited the forensic psychiatric hospital in B.C. We met with some of the psychiatrists there. They said that they were noticing a lot of assaults against staff. When they started looking at when those were happening, they were happening predominantly when people were being taken to seclusion. They decided to stop taking people to seclusion and instead sit down with them and ask, what are your needs and how can we better help meet your needs? When they started implementing that strategy, they found that the rates of assaults on staff went down significantly, to zero at one point. That was a couple years ago. I’m not sure where things are at now. In Canada, that forensic psychiatric hospital in B.C. is more the gold standard compared to some of the other institutions. There is also a movement to eradicate the use of seclusion in psychiatric hospitals. That story is pretty telling in terms of the damage that using isolation causes to people and the impact it has on safety.
Senator Pate: Thank you very much to both of you for the work you do and the work of your organizations.
Both of you have made suggestions of ways to improve the bill, and I’m wondering if you would be willing to send those to us in writing in terms of the types of amendments that you think would improve it.
As well, I’m curious as to whether you have done any responses to the reports of the Correctional Investigator or the Ministerial Advisory Panel. I note that with many of the stats you have been asked about by other senators, there are issues raised by the Ministerial Advisory Panel in their annual reports as well as by the Correctional Investigator that might deal with that. Before I proceed, have there been any responses to those by either of your organizations?
Ms. Metcalfe: No, there have not been from our organization, but we do fairly regularly write letters to Commissioner Kelly with our concerns that are some of the same issues touched on by the Correctional Investigator.
Senator Pate: Is it possible to share some of those letters with us, if they don’t cause any privacy issues for your clients?
Ms. Metcalfe: Yes. Thank you.
The Chair: Mr. Jack, do you want to respond to Senator Pate’s question?
Mr. Jack: The answer is just no for the BCCLA.
Senator Pate: Both cases that gave rise to Bill C-83, as you have indicated, were abandoned by the Correctional Service of Canada at the Supreme Court of Canada level. Do you have any comments or conclusions that you would draw from their decision to abandon that, based on what you know as well as what you heard today from the Commissioner of Corrections?
Mr. Jack: I take it that they accepted the decisions. I understand that Bill C-83 was meant to implement those decisions. I don’t think it was completely successful, and I outlined some of the reasons already today and in my written submissions. When you look at the IEDM model in particular, for review, in my opinion, it was designed to continue the problem that was identified in those cases, which is that the warden is the decision maker and then the judge in their own cause. The timing of the IEDM’s reviews and the powers that they are given are not sufficient to change any of that. It’s possible that the appeal to the Supreme Court of Canada — because an appeal was filed and then withdrawn — was withdrawn to avoid stronger language from the Supreme Court of Canada or that maybe judicial oversight would have been ordered or something like that. They probably felt like they could get a model in place that would allow them to continue to use solitary confinement, and that is what happened.
Ms. Metcalfe: I agree with what Mr. Jack said.
Senator Pate: When the Correctional Service Canada was before the Finance Committee, I asked them where the money had been spent. There was a royal recommendation that went along with the Bill C-83 that gave specific resources to contract beds in places like the psychiatric hospital that you spoke about, Ms. Metcalfe, as well as to hire independent mental health advocates. To your knowledge, have either of those provisions been implemented since the promulgation of Bill C-83?
Ms. Metcalfe: No. And I was pretty shocked to hear Ms. Kelly’s statistic about the number of beds that are available at Pinel and that there are only 13 for men, considering that men represent 93% of people in prison.
Senator Pate: Do you have any comments, Mr. Jack?
Mr. Jack: I really honestly can’t comment on that question. I don’t have enough information. I’m sorry.
Senator Pate: Okay. That’s fine.
Thank you very much to both of you.
The Chair: Let me extend my thanks and the thanks of the committee, Ms. Metcalfe and Mr. Jack, for joining us and responding in as effective and complete a way as you did to our questions. This brings this session to a close. We are not going to adjourn the meeting, but this will enable you to get on with your generally busy days, or stay and watch if you are so inclined. Thank you both.
Colleagues, I would like to move to a couple of other items for us to address. First, Senator Dalphond has a motion that he wants to propose to the committee.
Senator Dalphond: Thank you, Mr. Chair.
As you know, colleagues, Senator Jaffer will be forced to retire next summer, the summer of 2024. I was informed earlier this week that there was a gentlewoman’s and gentleman’s agreement reached between Senator Cotter and Senator Jaffer for Senator Jaffer to resume the chair starting in 2024 until her retirement. I’m not taking anything away from the chair, who I know has been doing a tremendously good job, but I also know that the previous chair was also very good. In compliance with that, it pleases me to give effect to this gentleman’s and gentlewoman’s agreement by proposing, if the committee is in agreement, that Senator Jaffer takes over the chair starting when we resume in February 2024.
The Chair: Is there any debate on the motion?
Senator Batters: Not debate, but wouldn’t it need to take effect from January 1 or something like that? There would be additional work, obviously, and it doesn’t just happen, as I know from being on that committee.
The Chair: Let’s take that as a friendly amendment.
Senator Dalphond: I can move it to start on January 1, 2024.
Senator Batters: I would be happy to second it, if that’s needed.
The Chair: Thank you. Now we will have some serious debate on this. Hearing none, all those in favour of the motion?
Hon. Senators: Agreed.
The Chair: Carried. Thank you for that.
Second, I thought we might take a few minutes supplementary to discussions in the chamber to extend our thanks to Senator Dupuis for the service she has provided. I will invite anyone who would like to, to say a few words. If you have spoken in the chamber, don’t speak here and repeat what you said. We heard lots of lovely and laudatory and deserving things.
[Translation]
Senator Boisvenu: Dear colleague, I would like to thank you for the work you’ve done on the committee, and also on the steering committee you were a member of for a few years.
Senator Dupuis: It was with you, in fact.
Senator Boisvenu: We have learned to trust one another. I discovered in Senator Dupuis a senator with a great sense of humour, but also a person with great humanity. Her spouse’s health touched me greatly, and we had the opportunity to discuss it from time to time. I don’t wish you a retirement from the Senate, but a good start. The word “retirement” isn’t in my vocabulary. I wish you and your spouse much health and, above all, a long life — personal, professional and family. Thank you for your work with the committee.
Senator Dupuis: Thank you very much, Senator Boisvenu.
[English]
The Chair: If I could extend brief remarks as well, Senator Dupuis has been extremely helpful to me in both fulfilling this role and also in learning how to be a senator with the contributions she made based on her prolific career before she came here, the precision with which she engages, and the incisive questioning which, no doubt, makes witnesses and sometimes the chair uncomfortable. I have admired the work that she’s done, not just the work that she’s delivered before this committee and in the Senate, but also as a role model for senators. I think we have been fortunate for ourselves and for the country for the service that she’s provided in this capacity. On behalf of all of us, we are really appreciative both of the work that you’ve done in this room and in the other roles you’ve performed in this institution. Thank you very much, Senator Dupuis.
Hon. Senators: Hear, hear!
Senator Pate: Je m’excuse. I would like to deliver this in French but I wouldn’t be able to do justice in the presenting. While I chuckled when Senator Klyne talked about how he can always tell who are the smart ones, I fear I was often not one of those getting the points that you were trying to raise. In all seriousness, I thank you very much for the incredible rigour with which you have participated in all of our discussions, whether it’s at this committee, whether it’s in the chamber, whether it’s about an issue that’s happening in the community writ large. I can always rely on you to be the touchstone for what we should be thinking and why we should be interrogating certain areas and to really encourage us to be the best we can be in these jobs. You do so in a very kind, gentle, clear, precise way — not in the ways that some of us sometimes get exercised about issues. I see that as an incredible role model for all of us, and I want to thank you particularly for how it has influenced me. I will miss you. I will miss you across the aisle and in the chamber and in this committee.
[Translation]
Senator Simons: It’s impossible to follow Senator Cormier’s great poetry and say any more. You’re incredible. Thank you for everything you’ve done with us.
[English]
Senator Jaffer: Before I thank Senator Dupuis, I want to thank you for the great work you’ve done, Chair. It’s been a pleasure to work with you, so, thank you, senator.
Hon. Senators: Hear, hear!
[Translation]
Senator Jaffer: Senator Dupuis, thank you so much for your work here. You’re truly an important member of this committee. Thank you very much.
[English]
Thank you so much for your contributions, and I can genuinely tell you that we will miss you in this committee and in the Senate. Thank you for all your work.
[Translation]
Senator Dupuis: Can I just say quickly —
[English]
— to my colleague Kim Pate, you’re exercising your constitutional right to speak English —
[Translation]
— and I’m exercising my constitutional right to answer you in French, there’s a balance, there’s no problem. Thank you for your kind words. I must say that I’ve taken particular pleasure in hanging on to the Standing Senate Committee on Legal and Constitutional Affairs. When I say hanging on — I’ve been on this committee since the beginning, so since I was sworn in, in November 2016, and I’m impressed by the diversity of the very complex issues that we’ve had to look at, often without enough time to delve into the reality that the legislation covers.
Contrary to what many people think, the Standing Senate Committee on Legal and Constitutional Affairs is extremely interesting and offers opportunities for exchanges that can sometimes be very lively, but which are also very interesting for me. Thank you very much for your kind words.
[English]
The Chair: Colleagues, at this point I would like to have the committee go in camera. Is it agreed?
Hon. Senators: Agreed.
(The committee continued in camera.)