THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, February 7, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met this day with videoconference at 4:16 p.m. (ET) to study Bill S-230, An Act to amend the Corrections and Conditional Release Act.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: I am Senator Boisvenu, Deputy Chair of this committee. I’m replacing the Chair, who is absent today, but will be here tomorrow.
[English]
I will ask senators to introduce themselves.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier division, in Quebec.
[English]
Senator Klyne: Good afternoon. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: Senator P. J. Prosper from Nova Scotia, Mi’kma’ki traditional territory.
Senator Pate: I’m Kim Pate. I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabe Nation.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Cotter: I’m Brent Cotter, a senator for Saskatchewan.
[Translation]
The Deputy Chair: Honourable Senators, we are meeting today to continue our study of Bill S-230, An Act to amend the Corrections and Conditional Release Act, sponsored by our colleague Senator Pate.
For our first panel, we are pleased to welcome a regular witness: Ivan Zinger, Correctional Investigator of Canada.
[English]
Welcome, and thank you for being with us today. You can start with your remarks. You have 10 minutes. After that, we’ll give the floor to the senators to ask questions.
[Translation]
Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you for this opportunity to comment on the bill.
As you know, Bill S-230 addresses four key areas. I will highlight concerns discussed in my Office’s annual reports for each of these themes.
The first theme deals with alternatives to incarceration for those who suffer from significant mental health issues.
For many years, my Office has been clear in stating that some incarcerated individuals with serious mental health issues should not be housed in penitentiaries.
We recommended repeatedly that those who are seriously mentally ill, those who engage in serial self-injurious behaviour or are suicidal, should be transferred to outside community psychiatric hospitals.
The Correctional Service of Canada (CSC) currently has the legal authority to transfer individuals to external provincial psychiatric facilities, but, in my opinion it is not making good use of this option. CSC operates five Regional Treatment Centres (RTCs), which primarily serve as inpatient mental health facilities or psychiatric hospitals. Today, there are fewer than 200 psychiatric hospital beds for men and 20 inpatient psychiatric beds for federally sentenced women.
The overall ratio of clinical staff to psychiatric bed ratios (psychiatrists, psychologists, and nurses) is well below expected or acceptable standards for inpatient psychiatric hospital care.
[English]
The second theme in the bill is the structured intervention units, or SIUs. Since the enactment of this new administrative segregation regime in 2019, my office has documented multiple concerns including data-collection issues, making it difficult to ascertain compliance with the law; gaps in legal compliance regarding time outside cells and meaningful human contact; overrepresentation and systemic discrimination of Black and Indigenous persons in these units; and independent reviewers who conduct paper reviews that are inadequate to ensure compliance, fairness and due process. Ultimately, their recommendations are not binding and can be ignored.
Many prisoners are held in units that have similar — if not more austere — conditions of confinement to SIUs, yet they do not benefit from SIU’s provisions, services or protections.
The above findings have been confirmed by both the independent advisory committee established to monitor compliance with Bill C-86, chaired by my predecessor, Mr. Howard Sapers, and by the Standing Senate Committee on Human Rights in its recent report on the human rights of federally sentenced persons.
The third theme is broadening access to sections 81 and 84 of the Corrections and Conditional Release Act. These legal provisions were established in 1992 to reduce overrepresentation of Indigenous people in federal corrections.
As documented in my most recent systemic investigation and update on spirit matters — I’ve provided you extra copies of this publication — Correctional Service Canada, or CSC, has failed to fully implement these provisions.
For example, we found that section 81 healing lodges are insufficiently resourced compared to CSC-operated healing lodges and bed capacity remains very limited. These concerns have been raised many times over the years by us and others, including by the Inquiry into Missing and Murdered Indigenous Women and Girls, by the Truth and Reconciliation Commission, by the Auditor General, by numerous Senate and House committees and also by the Government of Canada in their mandate letters.
My office has also made numerous recommendations to better fund community corrections and alternatives to incarceration. Though about 42% of federal offenders reside in the community under supervision, fewer than 9% of Correctional Service Canada staff are employed in community supervision. Further, only about 6% of the total budget of corrections is dedicated to community corrections.
Finally, the last theme, reductions of sentences. This issue speaks to the continued frustrations of repeated human rights violations and non-compliance with the law by Correctional Service Canada.
After making findings of egregious human rights violations in 1996, Madam Justice Arbour recommended that the justice department explore a remedy which would allow the courts to reduce the period of imprisonment in cases of illegality, gross mismanagement or unfairness by Correctional Service Canada. The Department of Justice never followed up on its commitment to review this recommendation.
Coincidentally, a few months before — we’re talking 1996 — pursuant to section 24 of the Charter, a New Brunswick court in R. v. MacPherson reduced the sentence of provincial prisoners who suffered cruel and unusual treatment by the provincial correctional service. To my knowledge, this approach was never replicated successfully.
To conclude, the office also acknowledged that reduction of sentence is a possible remedy in extraordinary cases. For example, during the pandemic, my office suggested that because COVID severely reduced access to programs, most prisoners were unable to access core programs, which access could improve their chance of early parole. Through no fault of their own, this resulted in them serving a longer term of imprisonment as a result. The conditions of confinement under COVID were far harsher than normal and resulted in delayed releases in some cases.
I would be happy to respond to any of your questions.
[Translation]
The Deputy Chair: Thank you very much, Mr. Zinger.
Senator Dalphond: On page 1 of your presentation, you say that there are 200 psychiatric hospital beds in the federal prison system. There were over 600 a few years ago. Why was the number of beds so significantly reduced by two thirds? Is it because of outdated facilities or lack of staff?
Mr. Zinger: That was over a decade ago. Correctional Service Canada was trying to fund intermediate care units and didn’t have the required funds. At the time, they did a study that was, in my opinion, very superficial, to determine the appropriate number required to serve the inmate population in terms of hospital beds, intermediate services and primary services. They concluded that they didn’t need 600 beds, and that building infrastructure for intermediate services would be more appropriate. That’s why they reduced the number of beds. They simply reallocated resources to fund intermediate care.
At the time, we had criticized the situation, saying that it was impossible for there to be 600 people in hospital beds, more than 250 of whom, at the time, should not have been hospitalized in such facilities. That’s a bit of the background to this decrease.
Senator Dalphond: Is care available for these 200 hospital beds? Does this represent one, two or three centres? Is it like a federal hospital, like the ones we used to have for soldiers, veterans’ hospitals? Is it separate from the province?
Mr. Zinger: No, they’re treatment centres. There’s one in each of the five Correctional Service Canada regions: Atlantic, Quebec, Ontario, Prairies and Pacific. These centres are designated by the provinces as hospital centres. They have a certain capacity. However, as I mentioned, that capacity is lower than in provincial mental health hospitals.
Senator Dalphond: Do we have any sense of the costs? How much does a psychiatric hospital bed cost in one of these centres versus the provincial system?
Mr. Zinger: That was quite a debate. I think that’s one of the reasons Correctional Service Canada has always refused to send inmates for placement, because they have the authority to place them in provincial hospitals.
They’ve been saying all these years that it’s far too expensive and it’s much cheaper to keep them at the federal level. In our view, that’s a real problem.
The Deputy Chair: Do you have any idea how much it costs? How much does it cost for a patient to be incarcerated in a full‑time psychiatric wing, for instance at the federal government’s Archambault Institution? Some people have dementia and degenerative diseases and are in the infirmary full-time. What does that patient cost versus a patient who is not receiving treatment?
Mr. Zinger: The question should be put to Correctional Service Canada. They can certainly look into it and send you the information, but it would be better to ask them directly. The problem with costs and the argument that it’s more expensive than sending them to the province… My office has never agreed with the way CSC calculates these costs. There are all kinds of costs they do not account for. We’re talking not only about health care costs, but also use-of-force costs, use-of-force reviews, multiple transfers, and so on. In extreme cases, like Ashley Smith, for example, the budget director conducted a study and estimated that it cost at least a million dollars to keep her incarcerated for 11 and a half months. These are things that should be closely scrutinized. There are ancillary costs and other costs; for example, correctional officers and service employees are poorly trained to handle such cases, and it’s very difficult. There’s a lot of burnout.
The Deputy Chair: All right. I’m going to have to stop you there.
[English]
Senator Prosper: Thank you for joining us, Mr. Zinger, and for providing a general overview of some of the issues that are subject to our study here.
I’m interested in getting into your SIUs. You note on the third point the overrepresentation of Black and Indigenous persons and the systemic discrimination in these units. Maybe you can get into the nature and maybe a bit of the content and substance of those systemic discriminations generally.
Mr. Zinger: It’s clear to me that, in terms of the treatment of Indigenous prisoners within federal corrections, there’s systemic discrimination at play. I just have to describe to you the differential correctional outcomes for Indigenous compared to non-Indigenous prisoners, and the same applies to Black Canadians who are incarcerated as well.
Indigenous prisoners tend to serve a longer part of their sentence behind bars than non-Indigenous. They tend to serve more time in higher security institutions. They tend to be subject to use of force more often. They tend to self-harm more often. They tend to attempt suicide more often than non-Indigenous, and they tend to be transferred involuntarily more often. They tend to have their parole suspended or revoked more often than non-Indigenous. When it comes to SIU, again, they tend to be placed in SIU more often than non-Indigenous. That’s the evidence of systemic discrimination.
Senator Prosper: Thank you for outlining those facts. I would imagine, through a review of the data, you would come up with that. Through your analysis and in reaching these findings, were you provided with any justification or any response from corrections officials as to why the data is as you just outlined?
Mr. Zinger: I think corrections will always argue that they are only imposing what is necessary, and it seems that more Indigenous people come into the system with higher risk and higher needs. That’s why they do poorly. That’s what corrections would argue.
When you look at some of their policies which appear to be neutral, such as risk assessment, you find those risk assessment tools used by corrections to initially place an individual in a particular institution at a designated level of security, those tools which appear to be neutral and impartial are actually having negative consequences for Indigenous people. Those tools have never been properly validated and are not reliable for their use with Indigenous populations.
That’s something on which even the Supreme Court of Canada agreed. Unfortunately, now, more than five years since the Supreme Court of Canada made such a declaration, corrections staff continue to use those same tools that were deemed to be invalid and unreliable with that segment of the prison population.
Senator Prosper: Thank you, Mr. Zinger.
Senator Simons: Mr. Zinger, I’ve had the opportunity to visit the Edmonton maximum security prison this January. I was very surprised when I went on my tour of the structured intervention units and talked to the staff. They told me that they are no longer able to send mental health patients to any Alberta hospitals. They said the memorandum of understanding between Correctional Service Canada and the provincial government had lapsed. When I asked how many prisoners with mental illness were within the SIU, they assured me that there were none. The moment they found that a prisoner had a mental health concern, they transferred them to Saskatoon, which is a five-hour van ride away.
Since then, my office has been trying to get confirmation that that is in fact the case. Can you tell me, if you know, is this is the case? In Edmonton, and in Alberta generally, are they no longer allowed to send prisoners for treatment to provincial health facilities?
Mr. Zinger: I was actually at the Edmonton Institution last week, and I did visit the SIU. I can tell you that I do not buy the notion that there are no people with mental health issues in SIUs. That is not true.
Structured intervention units have, unfortunately, captured a lot of people who have mental health issues, who, because their symptoms are impacting their lives, are either not tolerated by the correctional staff or by other prisoners. So there is always an overrepresentation of people with mental health issues in SIUs — that’s a given — and that is a research finding that dates back over 30 years. As for the memorandum of understanding, I’m not quite sure; I do not know. We can certainly try to find out for you and contact your office.
Senator Simons: I was quite concerned given that Alberta Hospital is a very short distance from the Edmonton Institution, and they told me they are no longer allowed to send any prisoners there for care or to any other mental health hospital.
Mr. Zinger: So, historically, the way corrections use the provision to allow them to transfer an individual to a provincial psychiatric hospital — a secure psychiatric hospital — is by way of memorandums of understanding. The chair mentioned Pinel, that is one that has a memorandum of understanding that has been signed and re-signed for well over 20 years. I don’t know whether in Alberta they have such a memorandum of understanding, whether that memorandum of understanding has lapsed and whether they are looking at other alternatives.
Senator Simons: If I have time for one more quick question, when I toured the SIUs, I was favourably impressed that the cells were larger and that many inmates seemed to be out and engaged, and I was able to meet with and interview a number of them. But one gentleman was kept in a structure that was not much larger than a dog kennel — a wire cage — and he was only allowed to speak to me while he was contained in this space, and I’m wondering that when people say inmates are allowed out for at least four hours, does that count as part of his allowed time out? I mean, he was out of his cell, but was in an even smaller confined space than he would have been in a cell.
Mr. Zinger: Yes.
Those sorts of small enclosures are problematic, and we have documented the issues around human dignity with respect to what you refer to as cages. We have documented that in past annual reports. The requirement by law is that meaningful human contact is what you’re trying to ensure, that out of the four hours outside of cells, two of them are spent in that way. Whether that amounts to — it’s certainly not in a dignified way, I would say.
Senator Simons: The staff told us it was for my protection to speak to him because he had allegedly made threats to throw bodily fluids on the staff, but I couldn’t help but wonder if at that time — I mean, he had meaningful interaction with me in the sense that we had a long conversation, but I didn’t know if that was going to count towards his four hours.
Mr. Zinger: The problem is one of execution in the sense that there are many places in federal corrections where you have a proper interview room which has a divider and plexiglass, and if there are any issues around risk, that must be managed. It’s still a proper room, and it does not have that demeaning component to it. Corrections have built many of those little cages in interview rooms. They have built them also to facilitate movement, so that they can put somebody in a temporary enclosure — what looks like a phone booth — the size of a cage while they move them around or have them wait.
The Deputy Chair: Thank you very much.
Senator Klyne: Welcome, Mr. Zinger. Thank you for your opening remarks and the advanced handout on this.
Your remarks and this handout document contain multiple concerns and highlights findings and recommendations. Regarding the subject of Bill S-230, will this bill resolve the concerns you have highlighted, and do you see anything in the bill that you might amend or adjust to make it better? As you think about the bill and your findings, recommendations and highlights, are there areas where the bill could have gone farther to address some of these? Maybe I could ask that in a different way: How do you foresee the proposed changes in Bill S-230 influencing correctional practices and policies, particularly in terms of addressing mental health issues and promoting fair, humane treatment when corrections couldn’t follow through successfully on the implementation and execution of the structured intervention units? Will corrections be able to abide by and achieve the very specific objectives of this bill? Do you have that confidence?
Mr. Zinger: I think I actually have questions for the committee about the bill on pretty much every single of the four themes, so maybe there’s one area that you’d like me to comment on first because I don’t want to take too much of the time.
Senator Klyne: Well, then just a general question: Does this bill go far enough? Is it going to cover some of the mental health issues and other policies and practices? I guess the point is: Will corrections be able to achieve these very specific objectives of the bill?
Mr. Zinger: Let me take one, and see if you want me to continue.
With respect to mental health, this bill provides for the transfer of people with disabling mental health issues. That’s very broad; it captures a lot of individuals. If you look at the prevalence of mental illness, up to 80% of prisoners in federal corrections have a mental health disorder. It is excessively high because it includes things like personality disorder and substance abuse disorder. You can try to reduce the prevalence if you’re looking at, for example, the former Axis I disorders, which are things like when you’re no longer in touch with reality, such as major depression or schizophrenia, then you’re looking at upwards of a maximum of anywhere between 6 and 8 per cent.
If you look at corrections, I think the most valid way of understanding prevalence is that upon admission, people are tested for mental health issues, and then you find out that about upwards of 30% of men require some sort of psychological or psychiatric follow-up, and it’s about 50% for women. So this is where it becomes challenging for me to look at what could be done, and my concern is that this is forcing corrections to act on something that they should already be doing, where they have the legal authority to conduct those transfers, but for whatever reason, they aren’t doing it. Whether it’s, as I say, because they think they can do it better themselves or they want to keep resources to themselves, I’m not sure.
So that’s one, but I’m willing to go farther if you’d like me to.
Senator Klyne: I’ll paraphrase and then turn it back.
Implementation and execution are going to be critical in this, and I could maybe deduce — but I don’t want to put words in your mouth — that the history and practice would suggest that they’re incapable of successfully doing that.
Mr. Zinger: If you look at SIUs, for example, when the new legislation kicked in, there was some concern, and that’s why they incorporated in the provisions a five-year review.
They went quite a bit further. The government of the day actually appointed an independent advisory committee to assess the implementation of those provisions for SIUs. Nothing they produced has been positive, by the way. I think there’s an upcoming report that will again be critical of how they have been implemented.
The secret is implementation, and that’s where the services, unfortunately, have a tendency to fail.
Senator Cotter: Thank you, doctor, for your presentation and your fielding of the questions.
I had a question along the lines of Senator Klyne’s, but I wanted to start in a much more general way. In your viewpoint, overall, what is the reason or what are the reasons that Correctional Service Canada is so consistently underperforming in these expectations that you and others have?
Mr. Zinger: That’s a loaded question, but there’s definitely a culture element within corrections that is well ingrained. Unfortunately, it’s an organization that’s excessively difficult to reform, and the reforms have never come from within; it’s always been in response to litigation, public inquiries, a coroner’s report or something from outside.
Evidence of that culture — often when we talk about culture, people always think it’s all the correctional officers; that’s where the culture is problematic. I think the culture is problematic from top to bottom. One piece of evidence of that culture, for me, is the reluctance to accept advice from outside. CSC is bombarded every year with thoughtful recommendations from outside bodies, and it just does not like to be scrutinized or be told. For me, that is a real problem.
When you look at the response to anything that tries to inject reforms and increase openness, accountability or transparency, CSC has a really hard time dealing with those matters as opposed to embracing them and running with them to improve the overall organization.
Senator Cotter: Without being too negative about Senator Pate’s bill, does that suggest that the bill will only move the needle the most marginal amount because culture will eat goodwill for breakfast?
Mr. Zinger: I think this bill is trying to counteract that, and it’s definitely very aggressive in its provisions. Maybe that’s what is required — I don’t know — but it shouldn’t be. A healthy organization should be listening to external oversight, like the Auditor General, the missing and murdered Indigenous women and girls inquiry, my office or the Senate report on federally sentenced persons and effect change based on those.
So I think it’s aggressive because when you’re talking about judicial oversight after 48 hours, when you’re talking about transferring people out because they’re not getting the services they require with respect to mental health, when you’re saying that there’s such a culture of human rights violations that you need to be able to do sentence reductions when they’re caught doing it — but it goes beyond. Even the bill talks not only about law but even violation of policy as opposed to going for egregious cases or something like that.
As I said, maybe that is what is required. I feel mixed about that approach, but I think it’s certainly one that is worth considering. I think many of the witnesses — I’ve read some of their testimonies — approve of the bill.
Senator Cotter: Thank you very much.
Senator Batters: Thank you for being here, Mr. Zinger, and for your important testimony.
First of all, with respect to the phrase in this bill “disabling mental health issues,” is that a term that’s defined elsewhere in the act or is that something that is new to this particular bill? If it is defined elsewhere, how is it defined? As you were speaking earlier, I was wondering if that includes something like substance abuse disorder. You were speculating that might be inclusive of that, and if so, whether this can then be so all encompassing with such a high percentage of prisoners that it would be a really massive impact to the system.
Mr. Zinger: I would have the same question for the committee. I think maybe some clarity around —
Senator Batters: It’s not the committee’s bill.
Mr. Zinger: — that definition might be a decent amendment; that you actually define what those words represent.
Senator Batters: Is it defined in the bill, though? I guess I’m asking you if you know — not this bill but in the act that this bill is amending.
Mr. Zinger: I’ve never seen the reference to those words before.
Senator Batters: Okay.
Mr. Zinger: For me, yes, mental health is one issue, but we also have to remember that there’s a very high prevalence of cognitive deficits among federally incarcerated individuals. That’s another issue that is often overlooked. We have people with fetal alcohol spectrum disorder who don’t react well and don’t do well in correctional facilities. We have people with brain injuries, attention deficit disorder, learning deficits and disabilities and intellectual impairments, and none of those people are coping well with incarceration.
As a result of those collective deficits that cannot be treated — they can learn how to cope with them and they have different ways of managing them if CSC would be proactive in addressing these things. But that’s another layer that complicates. Mental illness, unfortunately, is rarely just one issue. You can have concurrent diagnoses —
Senator Batters: Yes, frequently coupled with substance —
Mr. Zinger: — plus cognitive deficits on top of it. That would fall onto the signalling part of that definition.
Senator Batters: It is frequently coupled with substance abuse, often for self-medication purposes.
I want to ask you about transfer to hospitals. According to information from Correctional Service Canada, there are about 1,200 health care professionals working within CSC. There are rapid assessments of offenders’ mental health needs within 24 hours currently. The CSC has said there are regional treatment centres to meet more acute needs.
But in these structured intervention units, they say that 18% of inmates require primary mental health care available in their facility and 10% require intermediate care provided by CSC facilities.
So what do you think about transferring that level of inmates to external hospitals, which might not have the necessary capacity to handle an influx of inmates considering there are security implications and the ability of facilities to provide adequate care? As I ask this, I’m also keenly aware, unfortunately, of the major mental health care gaps in Canada including the major shortage of psychiatric hospital beds throughout Canada.
Mr. Zinger: Yes. It would be up to corrections, once you have a fixed definition, to be able to pinpoint how many individuals we are talking about. Then, is there capacity out there? Does the federal government and corrections wish to fund those additional beds that would be required? I don’t think they want to compete with provincial beds.
Several years ago, my predecessor and I went to Pinel. Pinel had the room, capacity and willingness to take on some women at a cost that, for us, seemed to be quite reasonable. The important thing was that Pinel was in agreement — the same thing with Brockville — only if they can have permanent funding to establish a team that can properly respond to the needs of those individuals. Those individuals — for example, people who chronically self-harm — require a lot of skill and effort to get them stabilized and coping with their disorder.
I’m not sure what to tell you as to the numbers. What my office has said, and maybe it’s also a problem of definition, we believe that there are some people who are severely mentally ill who chronically self-harm or are suicidal; those three categories should not be in correctional facilities. They have little to provide in terms of the levels of care that they need.
How many are there? Corrections has a system where they actually monitor some of those difficult cases. They call them complex cases. National headquarters, for example, has a committee that provides technical advice and support to the institutions. Maybe those are the individuals who should be required to be transferred out. I think if you dialogued with the service in terms of numbers, they might be able to narrow it down.
Senator Pate: Thank you, Mr. Zinger. Thank you for your work and the work your office does every day.
The definition that we have been contemplating is section 37.11 of the Corrections and Conditional Release Act which was introduced in part to look at what happens once someone is in a SIU and there is a decision having to do with a supplementary mental health assessment.
I’d be interested if that definition met — I don’t know if you want me to leave it to you and you can respond later. If you have some recommendations about a definition, it would be helpful for us to receive that if you’re interested. That’s the definition we were looking at that’s already there that presumes a movement.
My question is following up on Senator Simons in particular. I’ve spoken to mental health and provincial health authorities throughout the country. The choice to not renew memorandums of understanding has been the choice of Correctional Service Canada by and large.
The fact that there have been offers to build entire units in Nova Scotia, Ontario, Quebec — and possibly B.C. and Alberta — those were largely abandoned for the reasons you said.
Can you comment on what’s happened in terms of the resourcing that was allocated that went along with Bill C-83 to develop specific professional supports as well as mental health advocates and the resourcing that was specifically allocated to allow Correctional Service Canada to adopt particularly the mental health components of Bill C-83?
Mr. Zinger: Yes. Bill C-83 certainly came with significant resources to fund the support in terms of mental health and other issues.
At this point, I have to tell you that we’re talking about SIUs. SIUs on any given day now, it’s typically fewer than 200 individuals. The amount of resources we spend on those 200 is quite significant. If you visit SIUs that are doing what they’re supposed to do, you’re basically triple the staff. There is no shortage of resources.
The problem that I have is that we have perhaps forgotten the rest of the prison population that also requires some of those services. SIUs, for me, is only the tip of the iceberg.
There are so many individuals who are in some sort of restrictive housing. They carry all sorts of different names. Whether it’s secure units for women, protective custody — which is a term that isn’t used by the service, but that’s what they are — special needs, transitional and therapeutic units, et cetera.
Often, the conditions of confinement in those units are such that they are equally or more restrictive than SIUs. They don’t benefit from all the services that SIU individuals receive: a daily visit by the nurse, the head of the institution or warden; guaranteed time outside their cells; and an ability to continue to pursue their correctional plan. All of that is not happening outside the SIUs.
For me, the SIUs are a bit of a red herring. What we need to do is to look at restrictive housing and corrections as a whole and find all those individuals who — some of them — are actually experiencing solitary confinement, period. I’ll say it. That’s the challenge. This is why, hopefully, if there is the five-year review of Bill C-83, that may get to the bottom of that issue.
Senator Pate: Picking up on where you left off, getting to the bottom of the issue, you have mentioned countless reports; your office puts them out on a regular basis.
Is there anything short of court orders that you’ve seen that changes the actions of corrections — legislation or court orders?
Mr. Zinger: Well, even court orders, judgments, it was litigation that got us the SIUs. That was and continues to be a flawed legislative scheme because nobody was actually consulted during the process of coming up with this.
My office begged to be consulted. We were told no by the deputy minister of public safety. I went all the way to the minister. I couldn’t get clarity on what was going to be proposed. I said, “I’m more than happy to provide you and respect cabinet confidence.” The scheme itself is flawed. That is in response to litigation.
When I looked at Madam Justice Arbour’s original recommendations, which were made 28 years ago now or something like that, it was judicial oversight. She knew that was going to be a hard sell. She said a proper alternative would be independent adjudication. We have never had independent adjudication.
The scheme we have now is independent reviewers who are looking at it. It’s a paper review; it’s not a proper hearing. They don’t have binding authorities. It just does not meet the cut in terms of an ability to ensure compliance with the law, compliance with due process and compliance with fair and independent decision making. It’s a challenge here.
[Translation]
The Deputy Chair: My question is a follow-up to Senator Simons’ question. We know that in Quebec, psychiatric services are the poor cousins of the health care system. Parents dealing with children suffering from mental disorders struggle to get their children admitted. These children—who are often older boys—often end up homeless. The year 2023 was a record year in Quebec for the number of homicides committed by people with mental disorders.
I’m trying to see the compatibility between this bill and provincial psychiatric services, especially in Quebec, where we can’t even treat all the people with mental disorders because of the shortage of spaces. Take Pinel, for example, which has a major problem: the Pinel institute is currently short four psychiatrists, and delays in submitting reports to the court all exceed the 60 days stipulated in the Criminal Code. This is a major problem.
How can we transfer patients to a health care system that already fails to treat those without a criminal past? Aren’t we going to create major problems in the health care system? I’m talking about Quebec in particular.
Mr. Zinger: What you’re saying is important. You’re saying that there are people who aren’t being treated, who aren’t receiving adequate mental health care and who can end up committing very, very serious crimes, like homicide. For public safety, I think it’s important for CSC to make sure they’re providing adequate care to reduce the likelihood of someone being paroled without proper care.
To answer your specific question, I think it’s a question of reallocating funds. Correctional Service Canada has an extraordinary budget: it spends around $226,000 a year per inmate. Globally, we’re really on the cutting edge of…
The Deputy Chair: But in Quebec, there’s a shortage of beds.
Mr. Zinger: Correctional Services Canada could create new beds.
The Deputy Chair: There’s a program called Reaching Home, which supports community groups that take these people into their care and look after their medication, social hygiene and curfews. According to data collected for these projects, which are subsidized by the federal government, recidivism is reduced by up to 90%.
Rather than incarcerating these people or hospitalizing them in conditions that are often less than optimal, wouldn’t it be better to subsidize community groups that care for this population by monitoring and supporting them, especially when it comes to medication?
Mr. Zinger: I completely agree with you, but we need to do both. Those who need hospitalization must have access to it. The corrections hospitalization model is different from the community model. If you’re at Pinel as a patient, the people responding to your symptoms and performing interventions are mental health professionals. In a prison, even in CSC treatment centres, most of the time they’re correctional officers. From 4 p.m. until the next day and on weekends, it’s definitely a correctional officer. Front line officers are not health professionals.
That’s the major difference between what CSC offers and what the community can offer. I completely agree that the funding for these beds should be provided by CSC, with their money, the federal government’s money, and that CSC should not be competing with provincial psychiatric services, which, depending on the province, may be struggling.
The Deputy Chair: Mr. Zinger, thank you very much. Your comments were most enlightening. My colleagues greatly appreciated your testimony. See you next time.
Mr. Zinger: Thank you very much.
The Deputy Chair: For our second panel of witnesses, appearing by videoconference, we are pleased to welcome, from the Mental Health Commission of Canada, A. J. Grant-Nicholson, Principal Lawyer, and Krystal Kelly, Program Manager, Mental Health Advancement. From the Union of Canadian Correctional Officers, we welcome Jeff Wilkins, National President, and Frédérick Lebeau, National Vice President. From the West Coast Prison Justice Society, we welcome Debra Parkes, Board Member, Prisoners’ Legal Services.
[English]
Welcome. Thank you all for joining us this afternoon for the study of this bill.
[Translation]
We’ll begin with your opening statements. You have five minutes per group. We’ll start with the Mental Health Commission of Canada. Mr. Grant-Nicholson and Ms. Kelly, you have the floor.
[English]
A.J. Grant-Nicholson, Principal Lawyer, Mental Health Commission of Canada: Good evening, honourable chair and honourable senators. My name is A.J. Grant-Nicholson. I am a lawyer as well as a mental health and justice policy advisor.
I am grateful to be speaking to you today from Toronto, which is the traditional and unceded territory of many nations, including the Mississaugas of the Credit, the Anishinaabe, the Chippewa, the Haudenosaunee and the Wendat peoples. I appreciate the opportunity to share my thoughts with you about Bill S-230, An Act to amend the Corrections and Conditional Release Act.
My practice has a focus on mental health law where I provide representation for persons with mental illness who are in detention.
I am joined today by Krystal Kelly, Program Manager at the Mental Health Commission of Canada, leading the development of a national action plan to support the mental health of individuals who interact with the criminal justice system in Canada. This is a multi-year initiative that was inspired by continuous calls for action from leaders and experts in the mental health and criminal justice systems who want to see meaningful change. I have been supporting this work through my capacity as a project advisor.
The action plan is expected to be released in 2025, so it is timely to be discussing the proposed changes outlined in Bill S-230 since one of the action plan’s priorities is to look at what legislative and policy changes are needed to better support mental health within the criminal justice context.
The action plan has been engaging with stakeholders across the country, and we have heard that persons in the justice system need improved mental health supports inside of correctional facilities. The coroner’s inquest into the death of Soleiman Faqiri, a man who was in mental health crisis while being held in an Ontario jail, underscores the importance of having sufficient mental health supports in carceral settings, such as timely access to mental health assessments and transfer to a hospital when needed.
Furthermore, we have heard from stakeholders about the use of segregation and isolation on persons with mental illness and its deleterious impact on their condition. It is welcomed to see a specific limitation on the use of structured intervention units in the bill.
Finally, it is positive to see the inclusion of marginalized communities in the proposed amendments. The national action plan aims to include the voices and perspectives of equity-deserving groups that are often overrepresented in the justice system and/or that have diverse and distinct needs. In Ontario, we have an overrepresentation of Black persons in our criminal mental health system. In my opinion, a significant contributing factor to this overrepresentation is due to barriers in accessing community-based mental health supports. The proposed provision that allows community-based groups that serve marginalized communities to propose release plans may help marginalized persons overcome barriers to accessing mental health services in their communities which will in turn improve their release outcomes. My hope is that it would reduce the likelihood of their re-entry into the justice system.
Thank you.
Jeff Wilkins, National President, Union of Canadian Correctional Officers: Thank you, distinguished chair, esteemed senators and members of this committee. Good afternoon.
Although I am currently holding the position of National President of the Union of Canadian Correctional Officers, my substantive occupation is a correctional officer, employed at Springhill Institution, a medium-security institution in Nova Scotia. I have been a correctional officer for the last 22 years.
I am joined today by the National Vice President of Union of Canadian Correctional Officers, Mr. Fréd Lebeau, who is also a correctional officer from the Quebec region.
We appear before you representing 7,500 correctional officers and are entrusted with the critical task of providing insights on Bill S-230 and its potential impact on Correctional Service Canada’s mission of ensuring public safety while fostering offender rehabilitation in a secure and humane environment.
In our brief submitted to this committee, we have outlined some key concerns regarding the proposed legislation and stand ready to address any inquiries to help explain our position further.
In preparing for this testimony, we did take the opportunity to review testimony given by previous witnesses. Upon this review, we did notice in reference to our SIUs the words “segregation” or “solitary confinement” and even suggestions of torture, which deeply troubled us. We must emphasize that the current legislative framework, including the structured intervention unit model implemented in 2019, unequivocally prohibits such practices.
The new SIU model, which was implemented to adhere to the principles of the Nelson Mandela Rules and satisfy many different court proceedings, was implemented to make certain that inmates incarcerated in federal institutions receive the same programming and education; physical and mental health care support; as well as four hours outside of a cell, two of which promote meaningful human contact.
Rule 44 of the Nelson Mandela Rules defines solitary confinement as “. . . the confinement of prisoners for 22 hours or more a day without meaningful human contact”, further defining that “Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.” Only under rule 43 does it determine that indefinite or prolonged periods of solitary confinement would constitute “. . . torture or other cruel . . . punishment.” I must therefore remind this committee that, as we no longer have the statutory ability to segregate inmates under the administrative or disciplinary segregation regime, these rules no longer apply, and I categorically denounce any reference to my membership’s complicity in torture.
Having held the position of national president for nearly five years, I was in this position and witnessed the transition from segregation to structured intervention units from a labour management perspective. Our transition from segregation to the SIU model was not without its challenges. Nevertheless, our members have diligently adapted, prioritizing safety, security and statutory obligations while facilitating meaningful inmate engagement.
However, operational challenges persist, notably regarding infrastructure, inmate compatibility and unit capacity relative to population size. The SIU units are extremely busy units for our members to work in, and they are filled with some of the more dangerous and assaultive inmates. It is critical that continued investments are made in both staffing and infrastructure.
Furthermore, as the union has expressed in the past, when inmate accountability is degraded, institutional violence increases. Since 2019 and the abolishment of segregation, we have witnessed violence in our workplaces increase, both inside and outside our SIUs. It is imperative that the service examine its disciplinary regime and put a focus on ways to enhance inmate accountability so that all faith isn’t lost on our number one priority: public safety and the rehabilitation of those incarcerated.
I would like to end my opening comments by expressing how proud I am of the continued work our members are performing as correctional officers every day under very difficult circumstances. I would like to bring awareness to the fact that not only is there a mental health crisis among the inmate population and Canada as a whole, but I wish to highlight how this crisis disproportionately affects the Correctional Services, or CX, Group.
In 2018, the Canadian Institute for Public Safety Research and Treatment was operationalized as a multidisciplinary team tasked with studying the effects of various public safety professions on an individual’s mental health. So far, the findings of this work have been eye-opening. It is often cited that correctional officers suffer the most damage to mental health given their stressful and dangerous occupation. Yet each day our members get up in the morning, put on their uniforms and do their work in the face of this danger, making personal sacrifices in their mission to protect the public and change the lives of those who are under their care and custody.
Thank you for allowing these opening comments. We welcome the opportunity to help clarify any questions you might have for us.
Debra Parkes, Board Member, Prisoners’ Legal Services, West Coast Prison Justice Society: Thank you, honourable members, for inviting me to speak with you today. I am joining you from the unceded land of the Musqueam, Squamish and Tsleil-Waututh peoples.
I am a board member with the West Coast Prison Justice Society, which operates Prisoners’ Legal Services. I am also a law professor at the University of British Columbia where I teach and research on sentencing, prison law and constitutional and human rights law.
West Coast Prison Justice Society supports Bill S-230.
I will focus my comments on two aspects of the bill, but I’m prepared to answer questions on other aspects. Both of the parts I’ll speak to involve the implementation of judicial oversight of federal prisons.
The first is a need for judicial oversight to prevent unconstitutional isolation imposed in federal prisons. I use the term “unconstitutional isolation” — and it might be helpful in light of the comments just made — to include placements in structured intervention units as well as other forms of isolation that continue to be documented by the Correctional Investigator and others. These forms of unconstitutional isolation go by names such as “voluntary limited association,” “secure units,” “temporary detention,” “medical observation,” “restrictive movement regimes” and more.
What’s important is that we have legal findings on the government from courts in British Columbia and Ontario that form constitutional limits on the use of any form of isolation in prison.
I’ll reiterate those. It’s unconstitutional for the CSC to hold people in isolation, whatever it’s called, for 22 or more hours a day without meaningful human contact. It’s unconstitutional for those placements to be indefinite with no time limit. It’s unconstitutional to not have meaningful independent oversight of these placements in isolation, and it’s unconstitutional not to have the right to counsel available in practice to people in conditions of isolation.
It’s important to note that the current SIU legislation, even if it was perfectly implemented, does not meet constitutional standards, and I’m mindful that this very body — the Senate — tried to amend Bill C-83 to prevent this from happening. There’s no hard cap on the time spent in isolation, and the review by an independent external decision maker, or IEDM, is not required until the person has spent 90 days in isolation, even by the law’s own terms.
What’s more, you now have before you the well-documented facts in the reports of the government’s own SIU Implementation Advisory Panel providing that placements in SIU amount to unconstitutional isolation, at least in some cases. The panel found that at least a third of people placed in SIUs experience conditions amounting to unconstitutional isolation, contrary to court rulings. As for oversight, in more than 30% of cases where people were held in SIUs for more than 75 days, their matters were simply not placed before an IEDM. There was no external review.
Even when these matters do go to the IEDM, this is a paper review only, and CSC effectively controls the documents that the IEDM gets and those that the isolated person gets, and their counsel, if they have them. The panel has also documented that decisions of the IEDM directing that a person be removed from SIUs are simply not being followed in some cases. These are not orders that have to be followed, as it’s been interpreted by the Correctional Service of Canada. Our organization has also documented the denial of right to counsel for people placed in SIUs. That’s a constitutional right.
For these reasons and more, we support the provisions requiring judicial oversight of placements in isolation required by this bill. To do otherwise allows constitutional rights to be violated without remedy. In addition to being more timely and truly independent, review by a court requires disclosure of documents and right to counsel. Judges also have the power to make orders that are binding on CSC unlike the IEDMs whose decisions are not always implemented.
This ties into our second point about Bill S-230, the need for judicial remedy for unfairness in the administration of sentence. This is clause 11 of the bill. Judges sentence people to prison for X number of years for a lawful sentence. If that sentence becomes unlawful, the state is now meting out arbitrary punishment. The person experiencing that illegality is entitled to a remedy. Equally important, reducing sentences is likely to cause CSC to sit up and take notice in a manner similar to how the Charter remedy to exclude evidence obtained in an unlawful manner has had a significant deterrent effect on police practices and behaviour, and that’s well-documented.
Every year, the Correctional Investigator and our office document conditions and treatment of incarcerated people that amount to serious violations of the law and their rights. Many of these go unremedied.
I teach constitutional law, and my students know this: rights without remedies are meaningless. Laws without enforcement are not only meaningless in the prison context, they allow state-sanctioned abuse to continue. Legislating an explicit judicial remedy for sentences that have become unlawful is consistent with the rule of law.
Thank you.
[Translation]
The Deputy Chair: First of all, I’d like to thank our witnesses for their very informative presentations. My question is for you, Mr. Lebeau. We’re talking about transferring people who have committed crimes and are incarcerated to a normal hospital setting. In your opinion, will transferring these people from a prison setting to a regular hospital setting increase the risk to staff?
Frédérick Lebeau, National Vice-President, Union of Canadian Correctional Officers: Thank you, Senator. That’s an excellent question. We see it in our institutions; working at the Regional Mental Health Centre or the Archambault Institution, we see that the patients and inmates in our care are prone to violence. For us, the prospect of transfers to hospitals such as the Institut national de psychiatrie légale Philippe-Pinel or hospitals under provincial jurisdiction raises many questions. Bill S-230 does not answer them all. How will custody of these inmates be established? Who will handle the security of their care? We have dangerous offenders in our custody. Indeed, such questions remain unanswered.
The Deputy Chair: Thank you very much.
Senator Dalphond: I’d like to thank the witnesses; it’s always interesting.
My question is for the representatives of the Union of Canadian Correctional Officers, either Mr. Wilkins or Mr. Lebeau. Thank you for your comprehensive brief. What I gather from your brief is that if this bill becomes law, there will be major operational challenges, including a lack of resources. I understand that your preference is to allocate greater internal resources rather than looking externally, with all the administrative headaches that can entail. Can you provide more details on that?
[English]
Mr. Wilkins: I apologize. I’m an anglophone and will answer in English, if that’s okay. When it comes down to the mental health of inmates, there’s no doubt that we need more resources in our institutions. We need more resources to be widely available for inmates in the general population as well as those in the SIU.
In reading the proposed legislation, when we’re talking about the mental health professional, it’s not very clear, but as it stands right now, we have inmates that are coming into the institutions by transfer or by admission being assessed within 24 hours by a health care professional. When they’re in the SIU, they’re being assessed within 24 hours by a health care professional, but the words upon admission and transfer is “if required.”
Of course, I think everybody should have that assessment. There’s no doubt about that, but when I think about the resources in our province, I think about our members who are suffering high rates of post-traumatic stress disorder and trying to get resources in the communities to have assessments for them, and they’re waiting months and months. I seriously question how it would be done when we see the percentage of inmates in our care right now who have mental disorders.
Senator Dalphond: I understand from your brief that you do not think it’s manageable from an administrative practice, that the delays are too short, that they would involve transportation to outside institutions for which you don’t have the resources. Is that exactly what you’re saying?
Please also comment on the use of the special unit because you said that many use it for protection to be secluded from a source of threat, they need to stay more than 48 hours and don’t need a judicial administration to remain there but are there because they want to remain longer.
Mr. Wilkins: I hear two parts to that question. First, when we are talking about an inmate transferred or admitted into our custody, the proposal here is that within 30 days we would escort them to a psychologist, psychiatrist or other health professional in the community to have an assessment done. Of course, that escort requires resources and an operation in order for that to happen. I’m not saying that it can’t, but I think the resources would be better placed inside our institutions to ensure that the proper assessments are done.
When it comes to the SIU and having that assessment done, we don’t see any issues currently. Those assessments are being done.
When we’re talking about the transfer of inmates with debilitating mental health issues into our communities, we have to think about how that will look. Who will be responsible to monitor the safety and security of the public?
In one particular case, in the Prairie region, it’s completely the opposite. We have someone in our custody who is not federally sentenced and who has not been managed by the community there, by those resources. They are under our control because of the security risks that they pose.
Senator Dalphond: Thank you.
Senator Prosper: Thank you to all the witnesses appearing before us here.
My question is either for Mr. Wilkins or Mr. Lebeau. It relates to structured intervention units. We’ve obviously heard testimony regarding data collection issues where it’s making it really difficult to ascertain compliance with the law and there being, in essence, gaps in legal compliance related to time outside cells and meaningful human contact. Can you provide answers to some of those findings and statements?
Mr. Wilkins: Sure. Of course, when the SIU was first implemented, it was a little bit of a rush for our members and the systems to kind of catch up. But there is what they call a Long-Term Evolution, or LTE, network that we have in the institution. Our members are carrying a cellphone down the range. They’re documenting details in that cellphone, which get uploaded to the computer, including all of the time outside of the cell and the meaningful human contact the inmates are receiving.
One of the things we must remember is that the offer is there. It’s whether the inmate is taking the opportunity to leave their cell or spend time with other inmates in the recreation yard, in the common area or with the parole officer or teacher. It’s whether they avail themselves to do that.
Interestingly, I know the union put out a survey to all of our members working in SIUs. It was a while ago, in December of 2020. We asked the question, “How many times are inmates refusing to be outside of their cells for their four hours or the two hours of meaningful human contact?” Refusals are happening about 52.5% of the time. That was in 2020, of course, during the pandemic.
This is a complicated issue, when they’re not wanting to. That may be what gets documented. That’s what gets reported, and that’s what we’re seeing.
Senator Prosper: I have a question further to that, Mr. Wilkins, and I appreciate that, as you mentioned, it took a bit of time to catch up to this new regime. Is it the case that when data is tracked or logged and the response is, “Well, no, not today,” when they don’t want to avail themselves of these constitutional rights, is the matter just left out there? Are there any further inquiries as to why those opportunities are not taken up?
Mr. Wilkins: It’s my understanding, as part of the Commissioner’s Directives and as part of the law, that those follow-ups are supposed to take place. Even when somebody is not availing themselves, something would be reported to our independent decision makers. If they have not availing themselves of that time, I would assume and suggest that there is follow-up by health care professionals. They’re in those units daily, speaking with each offender. Our members are there speaking with each offender on a daily basis, but, at some point in time, if it’s cold and snowy outside, sometimes they’re not wanting to go recreate in the yard.
We have to maintain a certain level of security in those units. There’s only a certain amount of time in the day to make sure that people are outside. If there are incompatibility issues, as I mentioned in my opening comments, it makes the job really tough.
Senator Prosper: Thank you, Mr. Wilkins.
Senator Klyne: I have a question for Mr. Grant-Nicholson from the Mental Health Commission of Canada. Does the Mental Health Commission of Canada advocate for legal measures to address mental health equity for individuals from disadvantaged or minority populations within the criminal justice system? Does it raise concerns about potential legal challenges, barriers or complexities in achieving equitable mental health concerns? How do you assess the legal implications of community-based correctional services as outlined in the bill, particularly in terms of mental health support and ensuring the rights of individuals who are transitioning back into the community?
Mr. Grant-Nicholson: Thank you for that question, senator. Right now, the Mental Health Commission of Canada is undertaking a national action plan. It’s set to be released in 2025. It is in the midst of developing recommendations. There has been some preliminary — I would refer to them as findings or suggestions that we’ve heard. I can speak to that.
In terms of preliminary findings, we are hearing that there is a need to address improving access to mental health services from marginalized communities in the community once they’re released from custody.
Certainly, it’s something that I see in my practice. There is concern — I’ve heard from other colleagues, too — of people being released into the community and not having a smooth transition or landing and not getting adequate supports in the community when they’re released. That would lead to recidivism.
Hearing these kinds of comments, this could be something that is included in the national action plan once recommendations are ready to be made.
Senator Klyne: I have a question of Krystal Kelly.
The subject bill, Bill S-230, has four specific objectives, one of which is to allow for the provision of correctional services and plans for release and reintegration into the community for persons from disadvantaged or minority populations by community groups and other similar support services.
Given the potential impact of trauma on individuals in the criminal justice system, how can trauma-informed approaches be incorporated into mental health services both within the correctional facilities and community-based programs?
Krystal Kelly, Program Manager, Mental Health Advancement, Mental Health Commission of Canada: Thank you for that question. At the Mental Health Commission of Canada, we’re not the experts in this area. Our role is really to convene with the experts, which is why I’m joined by A.J. Grant-Nicholson, who is a lawyer and who has been instrumental in advising the action plan. If I could, I’ll defer to Mr. Grant-Nicholson to answer that question.
Mr. Grant-Nicholson: Thank you. As I alluded to in my opening statement, we have seen, at least in Ontario, barriers and difficulties for certain marginalized communities in terms of accessing mental health supports in the community. These barriers then increase the likelihood of people having negative interfaces with the justice system and ending up in the correctional system.
My hope with this bill would be that that particular provision with respect to including communities or community-based groups that service marginalized populations, if they can be included in terms of the release planning, they can create better outcomes in terms of ensuring that those barriers I’ve talked about are overcome in terms of accessing services in the community.
For instance, in Ontario, we have seen overrepresentation of Black persons in the justice system, in the criminal mental health system. Again, in my opinion, some of that is due to the fact that there are barriers that exist in the mental health system in the community that prevent them from readily accessing that service. If we can include culturally appropriate programming and release planning, my hope would be that it would overcome those barriers and challenges and reduce recidivism. Thank you.
Senator Simons: My question is also for Mr. Wilkins. You’re a popular man today.
When I had the chance to visit the Edmonton Institution last month, we met with a number of your members, including your regional vice president for the Prairies, Jake Suelzle, and your members spoke to us quite frankly and said that there is a culture of silence that pervades the corrections system and prevents staff from speaking out about abuses that they’ve witnessed against prisoners. I wonder what you would say to that statement from some of your own members.
Mr. Wilkins: To be honest with you, that statement has never been made to me, so it comes to me as quite a surprise. I can tell you that when it comes to any witness of abuse, I’m sure that our members are coming forward and reporting that when required — and I guess it would always be required. I don’t really have an answer for you.
Senator Simons: Let me ask a different question. Structured intervention units, the ones I saw in Edmonton — the people that worked in them seemed to have a good faith interest in providing meaningful interventions. So let me give you an opportunity to tell us that if a structured intervention unit is working well — I hate that phrase, structured intervention, it’s a euphemism — what are the interventions that are offered that are helpful to inmates? When do they work best?
Mr. Wilkins: They work best when there’s meaningful human contact. We have many different interventions happening in those units on a daily basis whether it’s the Aboriginal liaison officers coming in, chaplains coming in, parole officers sitting and meeting and discussing cases, discussing what’s next for the inmate in his correctional plan, teachers entering the unit and providing education or different programming. Of course, those are the things that keep everybody busy, and that’s what I would say is the success of that as opposed to what used to be a little bit more of a restricted model under the administrative segregation regime.
Senator Simons: The prisoners — can you give me a description of what leads somebody to end up in an SIU?
Mr. Wilkins: Three different reasons: they pose a risk to themselves; they pose a risk to others in the institution; there’s an impending investigation that is happening or they are going there for their own protection.
Senator Simons: Is it meant, in your opinion, to be a disciplinary method — a punishment — or is that not the intent?
Mr. Wilkins: That is not the intent. One reason you would suggest that, I would think, is when an inmate seriously assaults an officer. That’s one reason they would go to an SIU or if he assaults another inmate. It’s a matter of making sure that they’re away from the general population, that there’s some level of control for that inmate’s movements so they don’t further assault other staff or other inmates, and that there are assessments and conversations happening as to why. Then in that investigation, they would be thinking about moving them perhaps to a different institution or a different unit.
Senator Simons: You can see why that would come across as punitive to some people.
Mr. Wilkins: I don’t, actually. I don’t see that it would come across as punitive. We’re talking about inmate accountability. When it comes down to an inmate that is assaultive to a staff member or another inmate, there needs to be some level of accountability there, but it’s not a matter of punishment; it’s a matter of getting to the bottom of it.
Senator Simons: Thank you very much.
Senator Batters: Thank you very much to all of you for being here today, and I’m going to address my questions to the Mental Health Commission of Canada, and it’s a cause that’s very near and dear to my heart so I thank you for all of your important work for so many Canadians who suffer from mental illness.
First of all, in the first witness panel that we had today — I’m not sure if you had an opportunity to see that — I asked about the definition of disabling mental health issues that is contained in this bill, and Senator Pate — the sponsor of the bill — stated that she intended that this definition align with section 37.11 of the Corrections and Conditional Release Act. I just had a brief chance to take a look, and I note that that includes the following criteria: refusal of social interaction, acts of self-harm, symptoms of drug overdose and signs of emotional dress or behaviour indicating an urgent need for mental health care.
I’m wondering if you believe this definition is appropriate to guide decisions on transferring inmates to a hospital, in the context of Bill C-230, or do you think there’s a different definition of disabling mental health issues that would be better?
Mr. Grant-Nicholson: That definition does speak to an individual being in mental health crisis. Certainly, if a person is in mental health crisis, there needs to be an assessment to better understand the extent of that crisis, diagnosis or diagnoses.
What I would say is that whatever definition is being used should be broad enough to ensure that it’s not missing a person who is in mental health crisis that might need an assessment or treatment quickly. Thank you.
Senator Batters: Do you think it’s too broad, though, where it could encompass too many categories of people that obviously, then, would lead to transfers to hospitals, which could overwhelm the already very strained mental health care system in Canada?
Mr. Grant-Nicholson: I suppose that could be a concern. On the other hand, I think we should avoid, perhaps, a very narrow definition that might miss certain cases that do require more medical assessments or further medical assessment that needs to be done in a timely manner.
Senator Batters: We’ve been advised that the Correctional Service of Canada employs about 1,200 health care professionals who perform rapid assessments of offenders’ mental health needs, apparently within 24 hours, and has, of course, these regional treatment centres for more complex cases. Does the Mental Health Commission of Canada believe that those resources are sufficient to effectively meet the mental health needs of incarcerated offenders, and if not, what additional resources are you suggesting that the federal government needs to put into place?
Mr. Grant-Nicholson: Based on the national action plan and the engagement that we’ve done, I think it’s fair to say that, just generally speaking, the mental health system in the correctional context and outside in the public is not enough for the demand. Certainly, there’s always room for further investment in terms of funding, more supports in the correctional context or a carceral context as well as in the community.
Senator Batters: Yes, absolutely. What types of resources and what particular needs are you most concerned about that need to be met to have the best outcomes here?
Mr. Grant-Nicholson: I mean, there’s a long list. Certainly, there need to be more beds, both mental health beds in the public that people who are incarcerated can be transferred to if they are in need in secured units. There are some models for this. There is an acute care stabilization bed model in Ontario that is a partnership through the Ministry of Health and the Solicitor General. That might be a good example to look at in terms of a resource that could assist persons in mental health crisis in the correctional context.
But again, you know, there’s just a chronic lack of resources for what we’ve heard. So far, there’s a lack of resourcing across the board, both in the correctional context or in carceral settings as well as in the public. This does lead to certain problems in terms of where people go when they’re in crisis and getting them timely access to services.
Senator Batters: Thank you.
[Translation]
The Deputy Chair: In the same vein, Mr. Grant-Nicholson, when an inmate with a mental disorder applies for parole, does the Parole Board of Canada, Correctional Service Canada or the Mental Health Commission of Canada review the case?
[English]
Mr. Grant-Nicholson: The Mental Health Commission of Canada wouldn’t be supporting, I suppose, these kinds of claims or requests.
Senator, are you asking who the body would be?
[Translation]
The Deputy Chair: Here is my question: if a federal inmate is transferred to a provincial hospital and that inmate has a mental health disorder, will he be released under federal jurisdiction or provincial jurisdiction?
[English]
Mr. Grant-Nicholson: I think it would have to depend on the particular province and what the memorandum of understanding would be between those two different bodies.
One of the challenges that we see is that there’s a disconnect between the ministry that’s responsible for delivering correctional services and a disconnect with the ministry that is responsible for delivering health care service. That is a big problem.
I’ve referenced the Soleiman Faqiri inquest earlier. One of the recommendations in that inquest was to look at service delivery of health care by a provincial health care body instead of corrections or the provincial correctional body. Sometimes the federal and provincial separation or differences in service delivery can create gaps and can be problematic.
Another gap that has been identified that we’ve heard through the national action plan is sometimes there are gaps in the civil mental health regimes of the individual province versus what we have in terms of, let’s say, the federal Criminal Code or federal laws.
We need to consider the bigger picture. Also, we should be looking at provincial bodies of law in the health care context and mental health, as well as federal laws, and ensuring that they are in sync and complement each other.
Senator Pate: Thank you to our witnesses.
I’ve got questions for Professor Parkes and Mr. Grant-Nicholson.
Professor Parkes, you mentioned you’re teaching in this area and have been doing this work for a long time. Can you elaborate on the importance of judicial oversight versus independent oversight that’s administered, whether it’s by the independent external advisers or others that might exist? I’m also thinking of the chairs who would do court for serious charges.
Ms. Parkes: The independent chairperson, yes.
Senator Pate: The independent chairperson, thank you.
Also, the remedy and why that’s important, what your experience is with that.
Perhaps for you as well, but for Mr. Grant-Nicholson, I recently had a rather disturbing conversation. As we have developed this legislation, we consulted with many groups.
I want to clarify. The provision of mental health within a prison setting — in fact, the union referenced this — one of the challenges is — repeatedly it has been documented, whether it’s the Soleiman Faqiri inquest or others — that security always takes the front seat and any kind of therapeutic needs take a back seat to security issues that are identified. There is no way to interrogate that, to look at it, unless you end up in a court setting, an inquest or some other post facto investigation.
This director of a health centre that was put in place right beside a prison was leaving the administration of that psychiatric unit in large part because of — I believe her words were — the toxic infection of the correctional system into that hospital unit.
She said even when it’s administered by a health authority, if it is in close proximity so that there’s constant interaction between the correction system that’s not arm’s length, it’s very difficult to not have that kind of mentality overtake.
I don’t know if either of you would like to comment on that. Perhaps we can start with Professor Parkes on the accountability, and if you want to weigh in on that as well, please.
Ms. Parkes: Thank you for that.
I’ve been getting a bit long in the tooth, I guess. I’ve been working on issues of accountability of imprisonment for more than 25 years as an academic and previously as a lawyer.
The reality is you heard the Correctional Investigator. I had the privilege of being able to sit in on that session as well. To hear the Correctional Investigator talking about the utter resistance to actually implementing even what the law is.
We have court orders saying the existing segregation regime at that time was unconstitutional in these very respects. Then you have a bill that ultimately goes through that doesn’t even adequately address that.
That is the very reason why we need judicial oversight here because the buck actually does stop somewhere. You can’t keep saying, well, we’re going to pass a new policy, we’re going to put resources over here, we’re going to do that.
At the end of the day, if people’s rights are being violated, as we have well-documented instances — just read those SIU advisory panel reports. Read the Correctional Investigator’s reports every year. These are well-documented, multiple instances of constitutional rights being violated, people being harmed and laws not being followed. If you go to court, you actually can get a remedy.
Now, I’m not saying that everything is solved by everyone running off to court all the time. Madam Justice Arbour saw this back in 1996, that having laws without a meaningful external body to enforce that, to actually require that to be implemented or to have a remedy if they don’t.
The remedy, if you obtain evidence unlawfully as a police officer, that evidence is out of a murder trial, sometimes the murder weapon. Obviously, that’s a very big blow to efforts of law enforcement. Sometimes we need these significant remedies in order to say that, actually, these laws matter.
Similarly, in the prison context, if you don’t have a remedy, a reduction of the sentence here is the one that she had recommended. We see this in pretrial detention. It’s had an impact on conditions in pretrial detention, to have judges say, actually, I’m going to give this person a lower sentence to account for the fact that they served their time, the first part of it, in unlawful conditions. That’s why we need a remedy like this.
I’ll stop there.
Senator Klyne: Professor Parkes, a question for you. As a board member of Prisoners’ Legal Services, in your opinion, has this bill built in the necessary legal safeguards to protect the rights of individuals with mental health issues, especially concerning the proposed transfers to hospitals as outlined in Bill S-230?
Ms. Parkes: Thank you. Our organization has advocates and lawyers working on the front lines with people in prison every day. What they see every day is people with serious mental health issues, disabling mental health illnesses, who are being harmed in prison.
Our organization strongly supports all of the provisions of the bill that are aimed at getting people the appropriate assessment and treatment they need in a therapeutic environment.
This gets at the issue that has come up already before around the dual loyalty. Our office has been working on this with complaints to the College of Physicians and Surgeons and College of Nurses with respect to correctional medical staff because they have that security mindset.
Ultimately, this bill provides for people to actually get the therapeutic treatment they need. Often, that should be outside of a prison setting because of the security mindset that pervades inside the institution. We’ve heard this in the Faqiri inquest recently as well.
We are optimistic that this is a step in the right direction to respect the rights of our clients.
The Deputy Chair: Thank you. We have two senators left.
Senator Dalphond: My question is for the representatives of the union. In your brief, you wrote:
Prisoners frequently approach correctional officers voluntarily to ask to be sent to an SIU. . . . SIUs serve as a safety valve for some inmates, and many violent incidents are thereby prevented.
In such a case, the 48-hour limit is not necessary — even counterproductive.
What is the percentage of people who are kept in SIUs? Are they there at their request for safety reasons? Do you have an idea of an approximate percentage?
Mr. Wilkins: If I were to hazard a guess, I would say at least half of the inmate population is there for their own protection.
Absolutely, having a judicial 48-hour cap on that just wouldn’t make it too reasonable for an inmate who is trying to get away from a dangerous situation in the general population. If they aren’t awarded an extension on that, then they have to go right back into general population, which would be dangerous for them.
Senator Dalphond: In such a case, you say these people intend to waive the 48-hour limit because it would serve no purpose; they need more time, for their security, to remain inside that unit.
Mr. Wilkins: That’s right. For the most part, the inmates who are staying for a longer term inside of our SIUs are those who are seeking protective custody. The ones who are there because they’ve assaulted a staff member or another inmate are usually there for shorter periods of time.
Senator Pate: I would like to give Mr. Grant-Nicholson an opportunity to answer the question I asked earlier.
Also, just picking up on that last question, one of the realities is — it’s been well-documented by the Correctional Investigator — that the more austere or punitive the conditions, the rates of violence within prisons go up — as well as the lack of programs. If any of you want to comment on that, that would be great too, but Mr. Grant-Nicholson?
Mr. Grant-Nicholson: Yes. It is positive to see that the amendments in Bill S-230 give some teeth or provide some judicial tools in terms of their being oversight. A court that can issue an order or even just be aware of these issues and respond accordingly would increase transparency in terms of the use of SIUs. Hopefully, that can improve their use in terms of the impact on inmates, particularly those with severe or serious mental health issues.
Sorry, what was the other part of the question?
Senator Pate: I was commenting around the issue of what happens — the question for you would be a little more direct: Have you documented the issues of how many mental health — in addition to the people who come in with mental health issues — the generation of mental health issues by prison conditions? I think Prisoners’ Legal Services may have as well.
Mr. Grant-Nicholson: There have been studies that have looked at this. Prison or any type of incarceration is going to have negative impacts on a person’s mental health. If you have a pre-existing mental illness, it’s my experience that it can cause further decompensation, especially if that person has been put in isolation or segregation. Their condition could get worse. As a lawyer, this can make it quite difficult to even advocate for them because it then becomes even more difficult to obtain instruction.
Just thinking about it from the standpoint of persons who work in these environments, we’ve seen from the Faqiri inquest that these kinds of situations can cause trauma for correctional officers, too.
My hope with this bill is that it’s going to improve the conditions for persons who are incarcerated but also have an impact of improving the overall condition for people who work there as well.
The Deputy Chair: Thank you.
[Translation]
I have one last question for Mr. Lebeau.
We know that we would be dealing with two levels of government, federal and provincial; we also know that, in the case of an inmate in a Quebec prison who receives a federal sentence, no information is shared with the federal government, because provincial files are not digitized.
We have the same problem with health care in Quebec, because health records are not electronic. So, in the case of an inmate being transferred from a federal institution to a Quebec hospital, if they return to the correctional setting, you may find yourself lacking information on their treatment, because everything is still done on paper in Quebec.
How will this transfer of information be managed between the two institutions, one that is electronic at the federal level and one that is not at the provincial level?
Mr. Lebeau: The issue is that it would really have to be anchored in a framework or in a memorandum of understanding, as it’s called. There would have to be clear, well-defined guidelines for the transmission of information.
As you said, the two systems don’t currently talk to each other, so I think we’re a long way from that solution. How do we tie it all together? That’s part of the challenges and questions that remain to be clarified through the work of this committee.
Healthy and efficient communication about inmates returning to a federal facility or leaving for provincial facilities is absolutely essential, precisely so as not to worsen the treatment of inmates living with mental health issues.
Society wouldn’t be very advanced if we didn’t have this ability to properly collate information. I don’t think that’s the case at present, and it’s difficult. We send a lot of prisoners to provincial hospitals for cancer treatment and all sorts of other treatments, and often they come back with paper prescriptions and documentation from the doctor. Nothing is computerized.
The Deputy Chair: Thank you very much. I think all the senators will join me in thanking you.
Honourable senators, this is my last meeting with you as a committee member and deputy chair.
I would first like to thank the citizens who have followed our work over the 14 years I have been a member of the committee. I would also like to thank the committee’s staff, who have always given us much-appreciated professional support.
The interpreters are always faithfully there at the ready. It has to be said that the interpreters are not only there for us, but also for the citizens who follow the debates. They therefore provide an essential service.
I spent 14 wonderful years on this committee. I’m leaving it with lasting memories and a wealth of experience — I’ve almost earned my doctorate, if not my law degree.
I would like to thank you very much, honourable senators, for your support. When I took over as chair, you also provided great support. Thank you very much; I wish you all the best in your future work.
Senator Dalphond: I would like, on behalf of my colleagues at this table… The chair has just arrived; perhaps it is her prerogative to say these words.
I’ve been here for six years, and I’ve been on the Legal and Constitutional Affairs Committee for six years. I was a member of the steering committee, the subcommittee, for many years. It’s always been a pleasure to work with you. We haven’t always agreed on everything, but I have to say that it’s been pleasant in spite of everything, because despite our differences, our relations have always remained cordial. I would like to thank you on my own behalf, but also on behalf of the committee members, who appreciated your style.
Thank you.
The Deputy Chair: Welcome, senator.
Senator Jaffer: Thank you for all the work you’ve done, senator. You work very hard, too hard. I’m going to speak in English, because when I’m moved, I find it impossible to speak French.
[English]
You’ve been my neighbour and your staff has been so helpful to me —
The Deputy Chair: The quiet one.
Senator Jaffer: Your staff have always been very helpful to me and my staff. I will miss you in that way.
But the committee will miss you. Nobody can doubt your sincerity in the work you do. As Senator Dalphond says, we don’t always agree with your approach, and you know that, but we always agree with your sincerity. I can genuinely tell you that we will miss you in this committee.
I want to say on behalf of the whole committee, we wish you good luck in your future. We know you were driven by losing your two beautiful daughters. You have left an impression with all of us, how important it is to protect our daughters. I can assure you that when we do work in the future, we will remember your message: We have to protect our children. Thank you very much for all the work you have done.
Senator Batters: Senator, I bid you a fond farewell. We do usually see eye to eye. I have very much appreciated all of your work for so many years. I have been in the Senate for 11, and you have been here for a few more than that. I’ve been on this committee pretty much the whole time I’ve been in the Senate, and usually you and I end up sitting side by side, working hard for some really important causes. I thank you for your work over so many years for victims, women and these important causes. I know that you will continue that work and your legacy will go on in that respect. Thank you.
The Deputy Chair: Thank you.
[Translation]
Senator Clement: Senator Boisvenu, thank you for always speaking with love. It’s important for people to see men in a position to speak with love, transparency and emotion. People should not avoid crying and showing emotion in public when in a position of power, and I thank you for that.
The Deputy Chair: I don’t want to forget my assistant, Jordan. I was forgetting him. I’m going to talk about him a bit more tomorrow. Jordan has been with me for five years. He’s been extremely helpful. He now works in the office of the Leader of the Opposition, Senator Plett. Senator Plett is lucky to have him as an assistant.
Honourable senators, thank you very much. I wish you all the best for the future and, above all, good health. I think that if you can make it to 75 with the energy I still have, it’s a gift that must be protected. Thank you very much. I therefore adjourn this meeting with my last gavel blow.
(The committee adjourned.)