THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 8, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:45 a.m. [ET] to study Bill S-230, An Act to amend the Corrections and Conditional Release Act.
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: Good morning and welcome to the Standing Senate Committee on Legal and Constitutional Affairs. I am Mobina Jaffer, senator from British Columbia, and I invite my colleagues to introduce themselves.
Senator Cotter: Thank you, Madam Chair. My name is Brent Cotter. I’m a senator from Saskatchewan.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin and Anishinabek Nations.
Senator Clement: Senator Clement, Ontario.
Senator Prosper: Senator Prosper, Nova Scotia, traditional land of the Mi’kma’ki.
Senator Klyne: Good afternoon and welcome. Marty Klyne from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre J. Dalphond, the senatorial division of De Lorimier, in Quebec; the grand knight.
[English]
The Chair: Thank you, senators. If you are ready to start, we would love to hear from you. Mr. Elliott, the floor is yours.
Kyle Elliott, President, Canadian Association of Black Lawyers: Good morning, everyone. First of all, thank you for inviting the Canadian Association of Black Lawyers, or CABL, to speak to these important criminal justice issues. I’m Kyle Elliott, President of the Canadian Association of Black Lawyers, and I’m joined by my colleague Theresa Donkor, a member of the CABL — what we call the Canadian Association of Black Lawyers — Advocacy Committee and our Criminal Justice and Police Reform Subcommittee.
As you may know, the Canadian Association of Black Lawyers is the largest professional association for Black lawyers in this country. CABL’s membership is made up of Black lawyers across the country who practise in all areas of law. We have chapters in British Columbia, Alberta, Manitoba, Ontario, Quebec and Nova Scotia.
When it comes to matters of this nature, we rely heavily on members of our Criminal Justice and Police Reform Subcommittee. This subcommittee possesses a particularly unique perspective on issues related to the intersection of Black communities and the justice system given that it is made up of both criminal defence lawyers and prosecutors who are all members of Black communities and who all work with Black communities in the course of their practices.
With that, I would like to say first that the Canadian Association of Black Lawyers strongly supports Bill S-230. This bill is not simply about the rights of imprisoned persons. It’s about human rights because humanity does not stop at the prison door.
We are particularly invested in this Bill because of the disturbing reality that Black people disproportionately experience harsher conditions of confinement. Despite the government’s promise to end segregation, data from the Office of the Correctional Investigator and the 2021 Expert Report on Crime, Criminal Justice, and the Experience of Black Canadians in Toronto, Ontario paints a dire picture in our prisons, especially for Black people. We know already that Black people are overrepresented in the prison system generally, but these reports also show that Black people in prison are more likely to face disciplinary charges, to be placed in segregation, to receive higher-risk classifications, and to have force used against them.
The Expert Report on Crime specifically states that the bulk of evidence suggests that Black people are often not treated with dignity and respect by the staff of Correctional Service Canada, or CSC.
In a 2020 sentencing decision, Toronto Superior Court Judge Todd Ducharme said:
If a sentence is more onerous for a Black man because of systemic anti-Black racism in the correctional system, then any sentence I impose must be shortened to recognize this fact.
In our view, it is long overdue that this principle be adopted in legislation too.
Theresa Donkor, Member, Criminal Justice and Police Reform Committee, Canadian Association of Black Lawyers: Senators, given our limited time, I’d like to focus on three points.
First, we want to highlight the significance of the proposed provision allowing persons to apply to the court for a sentence reduction if there has been unfairness in the administration of their sentence.
Currently, our criminal legal system has mechanisms in place to remedy pre-trial abuses of Charter rights. Just last month, a gun charge laid against a 19-year-old Black man was stayed after a judge found that he was subjected to unwarranted and excessive use of pepper spray followed by two weeks in solitary confinement. To make matters worse, correctional officers lied to justify that use of force. While this happened in a provincial detention centre, make no mistake that these same incidents happen in our federal institutions as well.
These experiences of injustice are echoed by some of my own clients. Yet once convicted, imprisoned people have virtually no effective remedies for breaches of their rights. By permitting those imprisoned to return before the same court who imposed their sentence, we can ensure that they are truly receiving proportionate sentences. The proposed section 198.1 is essential for protecting and upholding the rights of imprisoned persons that for so long have been ignored.
Second, we echo the recommendation of other witnesses to expand the definition of Structured Intervention Units, or SIUs. Any form of confinement, regardless of whether someone is living in the mainstream population, should be captured by this definition. This includes, but should not be limited to, voluntary limited-association ranges, dry cells, observation cells or even general lockdowns on ranges. To be clear, any imprisoned person who is held in confinement for more than 48 hours and does not receive at least four hours outside of their cell with two hours of meaningful human contact should be afforded the same judicial oversight proposed in this bill.
Third, and finally, we want to emphasize the importance of Bill S-230. While one bill cannot resolve all the problems in our correctional system, this bill is a critical step in the right direction.
It has been almost 30 years since the Arbour Report described the absence of the rule of law in corrections. Unfortunately, we still see that absence today. We must not let another 30 years go by before these meaningful changes are implemented. Prisoner rights are human rights, and as the Supreme Court stated in their decision in Stillman:
The treatment meted out by agents of the state to even the least deserving individual will often indicate the treatment that all citizens of the state may ultimately expect.
We have provided some additional recommendations and resources in our written brief but would welcome any questions this committee may have. Thank you.
The Chair: Thank you very much for your presentation. We will now go on to hear from Professor Jackson. Professor Jackson, since I have been in this country, I have met you once or twice because I’m also from UBC, and I admire your persistence and determination to make the lives of prisoners better, and it’s an honour to welcome you here. Welcome, Professor Jackson.
Michael Jackson, Emeritus Professor of Law, Peter A. Allard School of Law, University of British Columbia, as an individual: Good morning, honourable senators. I am speaking to you today from the unceded territories of the Musqueam, Squamish and Tsleil-Waututh Nations, and I want to thank Senator Jaffer for those kind words.
For over half a century as a professor of law, I have conducted research in Canadian correctional law, policy and practice. I have represented prisoners in cases involving correctional law at all levels of court, including the Supreme Court of Canada. I have appeared on behalf of the Canadian Bar Association before committees both of this house and the House of Commons. I have been an advisor to royal commissions and inquiries including the Royal Commission on Aboriginal Peoples and the Arbour Inquiry. I’m also President of the West Coast Prison Justice Society, from whose vice president, Debra Parkes, you heard yesterday.
I have submitted a written brief, which is in the course of being translated, that focuses on the provision of the bill that provides for the judicial remedy of reduction of sentence, appropriately called the Arbour remedy.
My brief provides the committee with the historical context and evolution of judicial oversight of prison administration and why the additional judicial remedy in the bill is a necessary part of that remedial toolbox to reinvigorate the yet unfulfilled principle that the rule of law must run behind penitentiary walls, a principle and clarion call affirmed by reports of committees of both this Senate and the House and the Supreme Court of Canada.
At the conclusion of that brief and in my statement to you today, I would ask committee members to look at the remedial provision through two interrelated lenses. The first is the weight of imprisonment, and the second is the scales of justice.
I first encountered the concept of the weight of imprisonment in the 1970s in my interviews with prisoners in a case I initiated challenging the brutal conditions of solitary confinement in the Bastille that was the old B.C. penitentiary.
Those of us in the free world outside of prison spend time. Prisoners do time. Time itself is a force. Offenders are hit with their time, and back in the day, the word for a prison sentence was a jolt. Prison time not only has force; it has mass and weight. Too heavy a sentence can suffocate. It is not only in conditions of extended solitary confinement that the weight of imprisonment can be imagined, even by those of us who have never experienced them, nor is it only physically experienced by prisoners when there is an unlawful and excessive use of force by an emergency response team wielding batons and dispensing gas.
There is a broad spectrum of other situations in which the weight of an unlawful decision bears down and intensifies the pain of imprisonment.
Here are just three of the many documented examples. Confinement in a structured intervention unit, or as Dr. Zinger explained yesterday, and the previous speaker also identified, the many other forms of segregation like confinement without lawful justification or in violation of the requirements of meaningful human contact, the months and sometimes years of confinement in a maximum security penitentiary as a result of an unfair and illegal transfer. Demeaning strip searches and placement in restraints without lawful justification.
Let me turn to the second concept, the scales of justice. Again, this builds upon what the previous speaker so eloquently articulated. When the judge sentences an offender to a term of imprisonment, the length of the sentence is weighed in those scales in light of the purposes of sentencing as set out in the Criminal Code and the jurisprudence.
The scales of justice do not require that every day in prison will be a perfect day, but what they do demand is that the administration of the sentence will be in accordance with the rule of law. The whole rationale for the Arbour remedy as reflected in this bill is to allow for the recalibration of the scales of justice when a prisoner experiences conditions of confinement or the effects of unlawful or unfair correctional decisions that intensify the weight and pain of imprisonment that undermines the integrity of the sentence.
While individual judicial reviews, habeas corpus petitions, class actions and complex constitutional challenges — all of which I have participated in — are important tools, the additional remedy proposed by this bill measured in the currency and weight of time itself makes it clear that the correctional system is an integral part of the continuum of criminal justice and that the courts have an independent role in ensuring that the sentences they impose are administered in accordance within the law and within a culture that respects the rule of law.
While it is difficult to articulate in precise legal language the point at which the weight of imprisonment demands recalibration of the sentence and of the scales of justice, I submit that this bill provides a sufficiently broad but intelligible legislative framework that will allow for further development by the judiciary.
Thank you.
The Chair: Thank you, Professor Jackson.
Senator Dalphond: Both witnesses have referred to briefs that were submitted to the committee. We have not received these briefs. I find myself in a difficult situation. I understand they might be at translation. We have people who take the time to prepare good briefs, but is difficult to have good questions to ask these witnesses based on briefs that we do not have access to.
Thank you.
The Chair: I apologize, Senator Dalphond. Those are the challenges of having it in both languages, and they are at translation.
Senator Dalphond: But we should warn our witnesses that there needs to be sufficient time to file the briefs so we can have translation done or that they should submit in both languages. They have members in Quebec, so that could have been — could provide 90% of the work, and someone who is knowledgeable about the law would cover the 10% missing.
I think we should be telling our witnesses that it’s preferable to have it in both languages, and if not, to send it weeks ahead. Quite frankly, I feel unprepared to ask questions, because I did not have the benefit of the briefs.
Maybe you can summarize things again for me. You said there were three points that were important to you. I noted that the first one is the application to a court to remediate improper detention conditions in centres. From there, do you go to the judicial power to reduce the sentence if the conclusion is that the convicted person was held in improper conditions?
The second point was to extend the definition of Structured Intervention Unit, or SIU, to include what has been proposed in the bill — all kinds of similar arrangements.
I really missed the third one, so I will benefit from you repeating it.
Ms. Donkor: Sure, Senator Dalphond. I want to apologize for not providing a translated version of our brief, first and foremost, but hopefully —
Senator Dalphond: It’s not necessary, but we have to have a system that is able to do it.
Ms. Donkor: Absolutely.
You certainly captured our first two points, the first one being the importance of having some sort of remedial avenue for the improper administration of a sentence. That would be taking an imprisoned person back before the court and allowing for a sentence reduction in those circumstances.
The second is the expansion of the definition of SIU. There is already a definition proposed by the bill; we just suggest expanding that —
Senator Dalphond: Even going further than that? Did you explain in the brief how far you would like to go?
Ms. Donkor: Yes. Our position is that we support the recommendation of the Canadian Prison Law Association. They provided a proposed definition in their brief, and we would adopt that as well. The essential point there is that structured intervention units should capture any form of confinement, whether or not they are part of the mainstream prison population.
The third point was really just talking about the importance of the bill in general, given that we have seen recommendations for some of these provisions as long as 30 years ago, yet we’re still seeing injustices in our correctional system. So it’s really time to make some meaningful changes.
Senator Dalphond: So the need to have respect for the rule of law in detention centres?
Ms. Donkor: Absolutely, yes.
Senator Dalphond: On the first point, you referred to an Ontario provincial case. So what was the conclusion of the judgment? Did they reduce the sentence?
Ms. Donkor: Yes, we referred to the case, which is the case of McKingsford Marfo. We provided a copy of that case in our brief, but I can provide you with the citation. It’s 2020 ONSC 5663. The full case is provided as an appendix to our brief.
In that case, the sentencing judge did take into consideration the fact that a Black man will inevitably experience harsher conditions of confinement due to systemic anti-Black racism and that is a factor to take into consideration upon sentencing. That case has been cited with approval by the Supreme Court recently with the case of R. v. Hills.
So it’s certainly something we’re seeing being taken into consideration right now in our courts, but it would be important to have it in legislation so it’s something that, not only are we looking at once a person is sentenced, but when that person is serving their sentence, then the courts can look back at that sentence and see if the sentence really proportionate; is what the person is serving really proportionate to the offence they have been convicted of?
Senator Dalphond: So I understand it’s not the post-facto revision of the sentence; rather, it’s one further criterion being used in the sentencing process.
Ms. Donkor: At the current time, yes.
Senator Dalphond: Thank you.
The Chair: Senator Dalphond, you made a good point, but I don’t want the witnesses to think it’s a reflection on you. We will try better to get the briefs out. Please don’t think about this when you go out from here.
Senator Pate: Is it acceptable to let the witnesses know they could e-mail them directly to each of the committee members while we’re waiting? I don’t want to do something we’re not supposed to.
The Chair: It’s not the practice.
Senator Pate: Okay.
The Chair: I’ll talk to steering about that. Thank you.
Senator Prosper: Thank you to the witnesses for coming today.
I have a question for Mr. Elliott, Ms. Donkor and Professor Jackson.
First, Mr. Elliott, you mentioned that Black inmates are more at risk of not being treated with an appropriate level of dignity and respect, and you listed a number of facts related to that such as use of force, they are more apt to be confined, et cetera. In light of those characteristics, could you offer — or you, Ms. Donkor — why you think that is the case?
Second, I have a question for Professor Jackson. With regard to the application of the rule of law, I believe you mentioned that it has to take place within a culture that respects the rule of law. Now, that element of culture has many characteristics associated with that, and I want you to expand upon that.
But first, I’ll allow for a response from Mr. Elliott and Ms. Donkor. Thank you.
Mr. Elliott: Senator, thank you for that question. The point that was made comes directly from the expert report on crime that I mentioned and is included in our brief, and I don’t have the brief with me at the moment.
I’ll invite Ms. Donkor to maybe supplement what I say because this report, while it gives us this useful information in its own right, will be unable to properly satisfy your question with an answer.
I would say that systemic anti-Black racism appears and rears its head at every stage of the process, from the beginning of police interaction to sentencing to decisions about confinement and conditions of confinement.
That would be my short answer at this time.
Senator Prosper: Thank you.
Ms. Donkor: Just feedback on what Mr. Elliott said, we know that Black and Indigenous people are disproportionately represented in our prison systems, and we know they disproportionately experience harsher conditions of confinement. There is no explanation why, other than systemic racism. We know they are treated harsher, and we can’t say it’s because they are more violent, because race does not make somebody more violent. Race does not increase any risk of any sort of offence. When we’re looking at the data, we are consistently seeing that Black and Indigenous people are experiencing harsher conditions on confinement, they are experiencing more use of force and they are more often placed in maximum security or solitary confinement. There is no explanation for it except systemic racism, and that’s something we need to confront and address.
Senator Prosper: Thank you. Professor Jackson.
Mr. Jackson: Thank you for your question. It is a very important one. I listened with interest yesterday to the testimony of the Correctional Investigator, Ivan Zinger, and he talked about this very issue of why there is not a culture of respect for human rights within Canadian prisons. It’s something which has been the subject of commentary and critique for the 50 years in which I have been involved in research and practice.
I think there were a number of explanations for it. Madam Justice Arbour, in her report, identified them. In a book I wrote, based upon 10 years of research, at the cusp of the millennium, Justice Behind the Walls, I found that, writ large.
The operation of a prison — and Mr. Jeff Wilkins talked about it yesterday — is a very tough job. He gave an example of why people in SIU don’t get their time out for meaningful human contact. He said, well, it may be snowing; there are only so many hours in the day; they are incompatibles. There is a host of operational requirements, and I spent a lot of time interviewing prisoners and correctional officers and managers. What I find is when the rubber hits the road, operational constraints and security constraints trump the law and human rights — not because officers say, “We don’t give a damn about human rights,” not because they are bad people. I represented correctional officers, and I know a lot of good people who work within the prison system. The culture of imprisonment is inherently severe and repressive. When it is operated by good people, it operates better, but ultimately, it is a repressive system in terms of all the things we value on the outside — autonomy, liberty, the ability to make choices.
It’s understandable that, when correctional officers go into the prison, they go in wanting to do a good day’s work, but the balancing of rights and operational constraints often tips in favour of the restraints rather than the rights.
It’s something Madam Justice Arbour talked about; it’s something the Correctional Investigator talks about. Everyone talks about it, and the question is how do we remedy it. Madam Justice Arbour had no illusions that her judicial remedy is a silver bullet, and I talk about this in my brief. It’s part of a tool box; it’s part of Correctional Service Canada itself taking the necessary measures to teach and inculcate this respect.
It’s important also that outside agencies like the courts and the Correctional Investigator continually interrogate practices to ensure they are consistent with rights.
Senator Simons: Professor Jackson, we never met but in my days as a columnist with the Edmonton Journal, I remember the pleasure of interviewing you a couple of times for the investigative pieces I was doing. Thank you very much for being here.
One of the provisions in Bill S-230 calls for a judicial review of each placement into SIU within 48 hours. I’m wondering, because I’m wrestling with this question myself, if, given the backlog in our courts, you think that a 48-hour review period is the appropriate length of time. I will start with you, Professor Jackson.
Mr. Jackson: I have the same reservations about this that Professor Doob voiced with you last December when he gave evidence. Part of the problem is that within 48 hours, often, the information is just starting to flow. CSC is starting to review what the justifications and alternatives are, and my concern is that going before a court within 48 hours may be a little premature.
In my own recommendations, I have advocated for reviews at five or seven days, which I think is more realistic.
But I understand the motivation for upfronting the review is to put greater pressure on CSC to use SIUs as little as possible and to explore alternatives as quickly as possible. Even though I have reservations, I understand the purpose of an accelerated review, which is, in fact, to force CSC to operationally organize itself so that it can do this initial preliminary investigation very quickly as a matter of priority rather than expediency.
Senator Simons: Is 48 hours an unrealistic time window, or is it the appropriate one?
Ms. Donkor: I appreciate Professor Jackson’s perspective about concerns with having a backlogged judicial system, but in my opinion, the importance of this outweighs our concerns about scarcity of resources. When an individual is arrested, they have the right to have a bail be heard as soon as possible; it should be within 24 hours. In these circumstances, when we see concrete evidence of the significant psychological and physical impact of being in a SIU or solitary confinement or any form of confinement for longer than 48 hours, we see the damage this has on an imprisoned person.
I think it is imperative there is some judicial oversight, and, hopefully, as Professor Jackson mentioned, this will force our correctional system to look at alternatives. In my experience, I think that correctional officers put individuals in SIU because it is the quickest solution to a problem, but it might not be the best solution so it forces our correctional system to reconsider more humane and appropriate alternatives rather than just immediately placing somebody in SIU.
Senator Batters: Thank you very much to all of you for being with us today.
First of all, on the subject of your briefs, I’m sure you were probably not even invited to this committee to testify weeks ago, so it certainly wouldn’t have been possible for you to provide anything weeks ago if you weren’t even invited yet. So we will work with that, but thank you very much for being here. I know it takes time away from a busy rest of your professional career.
What I want to give you the opportunity to do, if you have your brief with you and if there is a paragraph or two that is extremely important for our committee to know at this stage, maybe I will ask you to read that into the record and we can have the benefit of simultaneous translation and the opportunity for other senators to question you about that.
Mr. Elliott: I appreciate this question, Senator Batters. I appreciate that this could be helpful for the committee, recognizing that no one has their brief in front of them.
In addition to the points we made in our submissions, our brief lists a few other points and, of course, also has additional resources. We had some recommendations in our brief, which I will summarize.
One builds on the point that Ms. Donkor made about the expanded definition. We adopt the recommendation of the Canadian Prison Law Association to include the following language:
. . . any type of custody where an inmate is held in highly restrictive conditions for 22 to 24 hours per day, does not receive a minimum of two hours of meaningful social interaction each day, or does not receive a minimum of one hour of outdoor activity that includes the ability to touch earth and plants and to see sky.
The second recommendation is to impose a prohibition on solitary confinement longer than 15 days. This aligns with the United Nations’s Nelson Mandela Rules, which describe prolonged solitary confinements — i.e. solitary confinement for a time period in excess of 15 consecutive days — as conduct that amounts to torture or other cruel, inhuman or degrading treatment.
Our third recommendation is to remove the 60-day limitation for an application for a reduction of a sentence. There should be no prescribed time limitation to this provision. The 60-day limitation will impose an overwhelming barrier for imprisoned persons to be able to access this remedial recourse. It will take time for an individual to gather the necessary documentation, retain counsel and file an application. It also adds unnecessary complexity in the litigation of these applications, as there may be disputes about timing and motions brought for an extension of time.
Our fourth recommendation is to include a provision to allow the court to appoint counsel for section 198.1(1) applications. There must be some mechanisms for individuals to retain counsel other than through private retainers. A provision allowing the appointment of counsel will help individuals navigate the legal system more efficiently and lessen the strain on judicial resources. This approach is consistent with legislation that contemplates the appointment of counsel in other circumstances, such as for youth facing criminal charges or for complainants in sexual assault proceedings.
The fifth and last recommendation in our brief is adopting that of the Native Women’s Association of Canada to replace the words “offender,” “inmate” or “prisoner” with “person,” recognizing that this bill should use humanizing language, and also all other legislation should use humanizing language.
I will quickly summarize the additional resources that are there. Earlier I referred to the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario. That’s one of the resources. This is a report that was prepared by Akwasi Owusu-Bempah, Assistant Professor in the Department of Sociology at the University of Toronto; Camisha Sibblis, a Faculty of Social Work, PhD at York University; and Dr. Carl James, Professor, Jean Augustine Chair in Education, Community and Diaspora at York University and a Fellow of the Royal Society of Canada.
It is important to note that this report was relied on in R. v. Morris, which is —
The Chair: Thank you, Mr. Elliott. I apologize that I have to cut you off. Maybe Senator Batters can speak on second round.
Senator Klyne: Welcome to our witnesses. Thank you for your opening remarks. I have some questions for Professor Jackson.
You have expressed concerns about a few points, including how the legislation might impact the training of legal practitioners and education for law students.
Another concern was the potential impact of the legislation on access to legal aid, particularly for marginalized or disadvantaged populations.
Another concern you’ve expressed is the potential impact of increased judicial oversight. On this latter concern, I sponsored Bill C-83, introducing the structured intervention units. I dare say that I think we erred on that while in committee in that we didn’t push further for judicial oversight and instead were satisfied with an independent review body — which, by the reports, I understand have not been very effective and, actually, dysfunctional. I’m wondering about your concern about the increased role of judicial oversight.
Mr. Jackson: I advocated for independent adjudication as long ago as 1972. It resulted in the appointment of independent adjudicators for the disciplinary process, but CSC has fiercely resisted any independent adjudication of segregation.
That was one of the reasons why Madam Justice Arbour, as a preferred remedy, suggested judicial review as an alternative — independent adjudication at the beginning of the placement in segregation, not 60 days later but as a front-end process.
From my point of view, the main failing of Bill C-83 was that the process of determining whether a placement in SIU was justified — whether it can remain justified after 7 days, after 14 days, whatever — was deferred until much later in the process, so that the Correctional Service Canada, or CSC, remained in control of the process and was able to continue its process of prioritizing security over human rights. It is my view that in light of the collective experiences — almost 50 years of reports — in which CSC has expressed its resistance, at this point judicial review is the appropriate remedial measure.
Senator Klyne: Thank you for that. On the point of concern around the impact of the legislation on access to legal aid, from a legal standpoint, how might Bill S-230 impact access to legal aid? Are there legal considerations regarding the provision of fair and equal access to justice for all individuals?
Mr. Jackson: I support the recommendation made by your last speaker, as well as the recommendations made by the Canadian Prison Law Association and by Michael Spratt, when he spoke to you earlier in the hearing — namely, that there should be a provision in the bill that provides for the appointment of counsel. It’s a remedy that should apply much more broadly.
In British Columbia, my organization, which represents legal aid services, is able to provide legal support for legitimate claims. But in many other parts of the country, there is no legal aid for prisoners, or it is very limited. In order for these remedies to be effective, there have to be provisions. This is one of the opportunities where you can put a provision in the legislation to allow for the appointment of counsel in meritorious cases.
Senator Cotter: Thank you very much for the presentations and responses to our questions. It is much appreciated.
I’d like to pose a couple of questions to you, Mr. Jackson. The first is an observation. In a lot of cases when we amend legislation in Parliament, we don’t take into account the resourcing implications. Your last observation about legal aid resources for prisoners triggered that point for me once again.
My larger question is to invite you to conclude your answer regarding culture. You have worked in this field in a distinguished capacity for 50 years and have dealt, particularly on the correction side, with institutions that struggle to be respectful of inmates’ rights. We may have this bill before us and we may adopt it, but I’m worried that it nudges things to the margins. Sadly, we are dealing with an institution that doesn’t seem to be capable, in our expectation, of governing itself effectively. It seems to constantly call for outside intervention and oversight. Will we break out of this cycle in some way?
Mr. Jackson: You have got me at a bad time to ask that question. If you had asked me that question when I began my work as a young law professor, when I was 30 years old, I would give you a very positive response that with goodwill, with the best intentions, with the right legislation, with a panoply of remedial remedies through the courts, grievances and the correctional investigator, we could get prison right so that it was not, as a parliamentary subcommittee said, epitomizing injustice.
You ask me that when I am 80 years old — after a lifetime of working within the system, nudging, cajoling and ranting that it should change. It will always be a difficult enterprise. This bill is part of the continued effort by Parliament, by the courts, and by everyone involved, to move imprisonment to a point which may be unattainable. I have not yet given up that it can be made a more justice experience.
That’s probably not a satisfactory answer. However, as I recall yesterday, you made the comment that corrections eats goodwill for breakfast. I have some skepticism — Madam Justice Arbour had some skepticism and she went on to work for the war crimes tribunal, as the UN High Commissioner for Human Rights. It’s born of judicial experience, but I still have hope.
Senator Cotter: I apologize for not getting appointed to the Senate earlier so I could have asked you at a more optimistic moment.
I was a deputy minister in the Saskatchewan government for a number of years. For five of them, I had oversight of the provincial corrections system. This is really more of a story that maybe reinforces your pessimism and, to some extent, mine.
I directed the correctional centres to release nonviolent offenders who had served the minimum amount of time and had been good inmates to be released at the earliest possible time and that we would focus our time on community corrections. In the first two years, we got the number of inmates in the population down by 10%. I then left the job. The next person took over, had other priorities, and the numbers returned to where they were and higher. The institutional imperative was too strong.
The Chair: Thank you.
Senator Pate: Thank you very much. I want to thank all of the witnesses for being here. In different ways, you are continuing my education and the education of so many. I appreciate that.
Professor Jackson, you led the way in showing many of us what we had to be doing. I hope you are taking some of the credit for this bill because it’s certainly been your inspiration as well as so many people behind the walls. If this bill passes, I look forward to the next generation, breathing life into some of the aspirations that many of us have spent our working lives and our personal lives entrenched in. I want to give a chance now to each of you to elaborate on some of the things you have raised.
Professor Jackson, in a 2016 report from prison legal services, you stated that correctional population management practices and mental health supports must have external oversight to be effective. Could you please share more on why you have come to this position of believing judicial oversight is necessary and why the status quo is not enough? Ms. Donkor and Mr. Elliott, I’d like you to comment on this as well.
There are other methods available. As has been pointed out, there is habeas corpus, judicial review and other options. Can you can also speak to why that’s not effective?
Mr. Jackson: Let me deal with the last point first because I do deal with this in my brief.
What is wrong with the existing judicial toolbox? What’s wrong with this, or where it lacks teeth, is that in judicial review, a court does not decide whether or not the correctional authorities made the right decision. They decide whether they acted reasonably. If they find that there has been a breach of law or that they have acted unreasonably, the Federal Court will invalidate the decision and return it to the decision maker for a new decision.
In habeas corpus, for example, where a prisoner successfully argues that they have been put in segregation or SIUs unlawfully, the result of the habeas corpus is that the court declares the placement illegal, null and void, and that person is then returned to the general population.
Even in cases where there are class actions and damage awards, none of the remedies, including the constitutional challenges to segregation give back time. None of them deal with the restitution or a remedy in the currency and weight of time. In terms of allowing a court to recalibrate the sentence, reduce the amount of time to be served and reduce parole eligibility dates, this remedy does, measure for measure, look at the relief in terms of time. That’s the difference.
In terms of the issue of oversight of psychological services, one of the experiences I continually have is that Correctional Service Canada employs the same psychologists to do risk assessments. Often their reports are boilerplate. There is no ability to question their risk assessment; there is no ability to interrogate the reliability of the risk assessment tools, which the Supreme Court has said in relation to Indigenous people are not validated.
In the context of a judicial review, judicial proceedings, those issues can be interrogated and cross-examined, and the limitations and deficiencies identified. That’s the difference.
The Chair: Professor Jackson, thank you.
Senator Clement: Thank you to all of the witnesses. Thank you, Professor Jackson, for speaking to us at this particular time of your career. It’s compelling.
I endorse the comments of the chair and Senator Batters around us, namely, that we need to do better in terms of briefs. I respect your elegant response, but we have to do better.
My questions are for the representatives of the Canadian Association of Black Lawyers. Your endorsement of Bill S-230 is clear. Senator Prosper asked you a wide question: Why are we still talking about this even though 30 years ago there was an in-depth discussion around what Justice Arbour was saying.
I want to ask about the state of the union for Black people in the justice system now generally. Where are we with the Black Justice Strategy? Are you involved with that? Is there sufficient access to impact, race and culture assessments for Black people? This bill also speaks to culturally appropriate services around release. Is there access to that? Are those services available and sufficient?
Ms. Donkor: Thank you for that question, Senator Clement.
I’m at the start of my legal career in the broader picture, so I would say that I’m cautiously optimistic, but there is a lot of work to be done. We are seeing disproportionately that Black and Indigenous people are experiencing more confinement, harsher conditions of confinement, are disproportionately incarcerated, and the numbers are going up; they are not going down.
There is a lot of work to be done in terms of enhanced pre-sentence reports. We don’t have enough funding, so there is a huge backlog and delay in terms of Canada’s Black Justice Strategy. We’re in the early stages. We are certainly in consultation, but there is still so much work to be done, and we’re not doing enough, quite frankly, to address these issues.
They are so systemic, they are so deeply rooted in our systems that there has to be meaningful changes, such as Bill S-230. It’s a start. It’s definitely not the finish line, but it’s a start.
Perhaps I can briefly address Senator Pate’s question. We already have some remedies, but I completely agree with what Professor Jackson said in that they don’t really address the sentence that is being served. Certainly, they don’t address the issue of proportionality and parity, which are key sentencing principles, so two offenders can be sentenced the exact same, for the exact same offence, but one offender can experience harsher conditions of confinement. The data shows that if you are Indigenous, if you are Black or if you are part of a vulnerable minority, you are more likely to experience a harsher condition of confinement. There is really no remedy right now to address that. That’s why this bill is so important.
To go back to your question, Senator Clement, there is just a lot of work to be done, and I think our government is not doing enough, and I think our criminal legal system is not doing enough, because we’re seeing the same patterns repeat themselves over and over and over again.
Senator Clement: You have access to sufficient data?
Ms. Donkor: Yes. We have provided some data already, but look at the data that we have seen from the Office of the Correctional Investigator. In particular for the use of force, there is clear data that Black and Indigenous people experience a higher incidence of use of force, but there is no explanation why.
When you look at the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario, there is clear data that Black people experience harsher conditions of confinement all around the board.
There is clear data, and there are limited explanations, and I think that’s part of the problem.
Senator Clement: Thank you.
The Chair: I have a very long question, and you are probably not going to be able to answer it in the time that we have — two minutes before the next panel — but may I ask Ms. Donkor and Mr. Elliott if they can, in their very busy schedules, give us a short brief on my question.
We know that Black individuals in Canada are over-policed and are over-incarcerated. Could you provide any insights on the reintegration stage in the justice system and if Black Canadians are receiving the supports they need upon exiting prisons?
I find that there is very little knowledge about the challenges Black Canadians face, and I was wondering if you could send us a short brief, if you can, and I’ll circulate it.
The other challenge is that we are having clause-by-clause consideration next Thursday, so if you can do it before that, then we can circulate it to the members.
Ms. Donkor, Mr. Elliott and Professor Jackson, I sincerely apologize for cutting you off so rudely. Professor Jackson, don’t hold it against me; I’m just trying to give all Senators a chance to ask you questions. If any of you feel that you have not fully answered your question, please send us something in writing, and we will get it translated.
Senators, I also apologize to you, but you know we all have four minutes to ask a question. Thank you very much for being here, and we look forward to having you again.
Senators, we’ll take a few minutes for the next panel.
Senators, for the second panel, we have from the Philippe-Pinel National Institute of Forensic Psychiatry, Dr. Mathieu Dufour; from the Canadian Mental Health Association, we have Margaret Eaton, National Chief Executive Officer, by video conference; and from St. Leonard’s Society of Canada, we have Anita Desai, Executive Director, and Danielle Kouri, Outreach Coordinator.
We will start with you, Dr. Dufour.
Mathieu Dufour, Forensic Psychiatrist, Head of the Department of Psychiatry, Philippe-Pinel National Institute of Forensic Psychiatry: Thank you. Is it better if I do my speech in French or English?
The Chair: It’s your preference. We are a bilingual country. You can do it in either French or English.
[Translation]
In French, please.
Dr. Dufour: Okay, I’ll do it in French then. Am I correct in understanding that I have five minutes to address my opinion on Bill S-230 and that there will then be questions?
The Chair: Yes.
Dr. Dufour: Thank you. It’s not every day that I appear before the Senate. I’m more used to appearing in court.
I’ll introduce myself. My name is Mathieu Dufour, and I’m a forensic psychiatrist. I work at the Philippe-Pinel National Institute of Forensic Psychiatry; I’ve been head of the psychiatry department for a few years now. I’ve been a practicing forensic psychiatrist for 11 years. As a forensic psychiatrist, I’m also a clinical assistant professor in the Faculty of Medicine at the University of Montreal.
I’m here today to comment on Bill S-230. I think we were approached at the Philippe-Pinel National Institute of Forensic Psychiatry for two reasons. I’m going to talk about Pinel, but it’s the Philippe-Pinel National Institute of Forensic Psychiatry, which is the only maximum-security forensic psychiatric hospital in Quebec and the largest forensic psychiatric hospital in Canada. Perhaps there’s a link with the fact that we’re a national institute, so we’re recognized for transferring knowledge and being experts in the field.
We have a contract with Correctional Service Canada, or CSC. Bill S-230 talks about subsection 16(1), where the Government of Canada can have a contract with certain hospitals for the detention and treatment of certain patients. We have such a contract at Pinel.
We have 15 beds for federally incarcerated women, so they can be brought to Pinel for treatment, and we have five or more beds for federally incarcerated men. We have some expertise in everything that goes on between psychiatric hospitals and CSC.
Lastly, to give some context, I’m not here to represent CSC, but I’m also a consulting psychiatrist at CSC; I work at the treatment centre. In Quebec, it’s the Regional Mental Health Centre, or RMHC, which is a regional treatment centre. I work there one day a week, so I have some expertise in this area as well.
So I’ll give you our opinion, briefly. When we reviewed the bill, I discussed it with our steering committee and with people who are experts in the field. Of course, anything to do with the treatment of patients with mental health problems who are in custody is important to us.
We know that prison isn’t necessarily a place to treat people with significant psychiatric symptoms; it’s not an environment that promotes the recovery of our patients. We support the principle that patients can be cared for where they should be.
That being said, we can see that this is the primary purpose of the bill: to be able to transfer to a hospital anyone in the penitentiary who has a disabling mental disorder. It’s understood that this is the population that’s in the structured intervention units, or SIUs. I think it’s in paragraph 2.01, that if they can’t get a mental health assessment in time, they must be transferred to a psychiatric hospital that corresponds, a bit like Pinel, to a psychiatric hospital that would have a contract with CSC.
I would say that we have concerns about this paragraph for two reasons. The first is the capacity of the provincial psychiatric hospital network to take on more patients right now. It’s not just in Quebec, but across Canada. It’s hard to get access to mental health care, and our psychiatric emergency departments are overwhelmed in terms of the system’s capacity to get more juice, if you will, to accommodate patients.
This is a concern, not just for Pinel — because we don’t have a psychiatric emergency department — but in general, for psychiatric hospitals under provincial jurisdiction. So that’s one of our first concerns.
The second concern, in our experience, is that patients are in an SIU when they have psychiatric disorders that are significant and disabling by law. The two psychiatric disorders we see most regularly are schizophrenia and bipolar disorder, where patients are in psychosis. When they are in an SIU, there are procedures already in place to transfer them. They don’t necessarily go to Pinel, but they go to their penitentiary treatment centre, one of five in Canada, such as RMHC.
I would say that, in our experience, when I talk to my colleagues, we rarely run out. Most of these patients, who need care, are transferred to these treatment centres. The vast majority of patients in an SIU may have mental health disorders, but they’re more of a personality disorder, so behavioural disorders linked to their personality structure.
Sometimes they’ve had a difficult childhood and have difficulty managing their emotions. These aren’t necessarily psychiatric disorders that need to be treated in psychiatric hospitals like Pinel. In fact, when people with severe personality disorders are brought into hospitals and treated long term, they tend to regress. They’re often worse off, as if they were offered too much structure and care, and personality disorders can worsen in psychiatric hospitals.
That’s why I note that we’re worried about this plan; there’s concern that it will medicalize certain behavioural disorders without them necessarily being proven psychiatric disorders—
The Chair: Could you please wrap up now?
Dr. Dufour: I’m done, Madam Chair.
The Chair: I’m really sorry, but there will surely be the time to finish your presentation during questions from senators.
[English]
We will now hear from Margaret Eaton from the Canadian Mental Health Association, or CMHA.
Margaret Eaton, National Chief Executive Officer, Canadian Mental Health Association: Thank you for the opportunity to speak to this important bill.
The Canadian Mental Health Association is the most extensive community mental health network in Canada. We provide advocacy, free programs and resources that prevent mental health and substance-use problems and illnesses, but also support recovery.
Established in 1918, we reach 330 communities in every province and the Yukon Territory. We engage 11,000 volunteers and employ over 7,000 staff across the country.
CMHA supports the bill and its intention to provide alternatives to isolation and to ensure oversight and remedies in the correctional system.
The bill is designed to address the failings of Bill C-83 which still allows people to be left in conditions of isolation for upwards of 90 days. We know the profound impact that isolation has on mental health, including anxiety, induced psychosis, anger and behavioural issues, hopelessness, paranoia and suicide.
We support efforts to ensure that the intention of Bill C-83 to end the practice of solitary confinement is upheld. We also believe this bill will support the goal to ensure those who are incarcerated will receive the mental health care and treatment they need and that they have a fundamental right to receive.
Given CMHA’s area of expertise as a front-line community mental health care service provider, my testimony is going to focus on the legislation’s proposed amendments (a) and (c) presented in the Summary of Bill S-230.
In principle, CMHA supports amendment (a) that requires the transfer of individuals experiencing severe mental health problems to the appropriate health care facility for assessment. People should receive the care that they need, regardless of their circumstance. This is often not the case when in custody, as access is very challenging.
Not all correctional facilities have dedicated mental health staff available 24-7 that ensures the continuity of care for individuals who have been receiving mental health care before they were taken into custody.
For those who develop a mental illness while in a correctional facility, it is extremely difficult to receive the appropriate diagnosis and treatment.
We firmly believe that the place for substantial mental health care diagnosis and treatment is in hospitals and in the community. There is an inherent conflict between the operations of an institution based on punishment and the medical needs of the patient.
The current level of mental health care being provided in corrections we know is not adequate. We believe we need to expand mental health care in hospitals and in the community. However, we do have concerns about the feasibility of the amendment. As other speakers have mentioned, across Canada, we’re experiencing a crisis of health and human resources which extends to the mental health care system. Hospitals and emergency departments are under great strain and are struggling to meet the needs of Canadians and to attract and retain staff. If more individuals are to be transferred out of corrections into hospitals or other mental health facilities, we need to ensure there is capacity to support these individuals.
With respect to the amendment (c), which would allow for release and reintegration by community groups and other similar support services, CMHA is also supportive in principle, but we must again raise concerns regarding capacity and resource availability. While community-based mental health supports exist in some places, community agencies are badly underfunded with long waiting lists for essential programs. As mental health care concerns grow ever more pervasive, existing services and supports cannot meet demand.
Senators, for these amendments to work as intended and to meet the needs of people with mental health problems in custody, greater investment is required in the mental health care system for both hospital-based and community care and treatment.
However, this does not mean that we believe the bill should not be passed until those services are available. On the contrary, it is our wish that the passage of this bill will trigger additional funding for mental health care to support its implementation.
Mental health is an inalienable human right. Since 2004, the Office of the Correctional Investigator has repeatedly raised the issue of and reported on the care and treatment of prisoners with mental health concerns. The current model of care and treatment for justice-involved individuals reads nothing short of a violation of theirs right to be free from discrimination based on their mental health diagnosis.
In the response speech to this proposed legislation, Senator Boisvenu said the way Canada deals with mental health is a pathetic failure. CMHA agrees. Please pass this bill and support further investment in mental health for all. Thank you.
The Chair: Thank you, Ms. Eaton. We will go to Anita Desai, Executive Director.
Anita Desai, Executive Director, St. Leonard’s Society of Canada: Thank you for the invitation to appear before you to bring the perspective of St. Leonard’s Society of Canada to this committee’s considerations regarding Bill S-230.
We are a national-membership-based charitable organization that brings together a network of individuals and independently operated community-based agencies. Our mission is to promote humane and informed criminal and social justice policy, practice and responsible leadership to foster safe communities.
I begin by thanking Senator Pate for her work on establishing Bill S-230 and her tireless efforts to improve outcomes for people who are impacted by Canada’s criminal justice system.
International human rights standards such as those established by The Nelson Mandela Rules and the World Health Organization recognize prisoners’ rights to access the same quality of health care as any other person. Access to equitable and consistent standards of health care without discrimination is essential for the well-being of our communities. It is also critical for the overall health, welfare and positive outcomes for incarcerated people both during their sentence and upon release.
The honourable committee members have already heard and will continue to hear from other very qualified experts on matters related to mental illness, the direct experiences of people in SIUs, legal remedies for unfairness in sentence administration, as well as this bill’s ability to establish mechanisms to improve outcomes for disadvantaged and minority populations.
I aim to bring to the committee today my expertise in community corrections as it pertains to the amendments related to agreements with community-based supports, the transfer of care and custody and release into the community.
We have repeatedly failed to address the impacts of deinstitutionalization of mental health facilities decades ago and have not made the requisite investments in community-based supports, resulting in our prisons becoming de facto warehouses for people with mental health problems and illnesses.
This bill can serve to create a blueprint for building an integrated network between people who face the added stigma of criminalization in the community, in community corrections services and in community-based mental health services. If done successfully, we can learn from that work to enhance preventive components that will reduce the likelihood of people with mental health concerns from becoming criminalized in the first place. Of course, success will require addressing the current funding disparities and instability experienced by community-based organizations, as we’ve heard from the previous witness.
The members of St. Leonard’s Society of Canada collectively operate 15 out of the more than 180 community-based residential facilities across Canada. Many have been well-established service providers for over five decades and are recognized partners for providing continuity of care from institutions to the community.
These residences were founded to help decrease recidivism rates by providing structured systems of social and residential support for people released from jails and prisons. Research related to their operations consistently demonstrates that individuals who are at community-based residential facilities as part of a gradual and supported release from custody are much more likely to stay in the community long-term as law-abiding citizens and face fewer reintegration-related challenges compared to those who do not.
Research also demonstrates that many incarcerated people, based on their level of risk or other criteria, will be better and more appropriately placed in community care settings such as community-based residential facilities and other services that provide specialized health and/or culturally appropriate supports, including treatment centres, retirement homes, palliative care facilities and so on.
Bill S-230 recognizes and can help enhance the capacity of these community-based support services and organizations to address pre-existing or new health concerns exacerbated through incarceration. In particular, we appreciate that this bill lays the groundwork to enter into agreements which, if resourced appropriately, will create much-needed flexibility for federally sentenced people to access a broader range of support services. It also provides mechanisms to improve the communication and collaboration sought by community-based agencies to better support them.
Furthermore, the bill establishes grounds to propose release plans that will more effectively balance needs related to risk and health. To strengthen the intent of this bill, we recommend expanding the definition of “disadvantaged” in section 79 to be more reflective in scope to the five social determinants of justice — income, employment, stable housing, education and health. Doing so would consider key factors such as poverty and other adverse childhood experiences that bring people to prison in the first place. It would provide a more comprehensive understanding of how people’s surroundings and circumstances can be meaningfully addressed to develop more equitable interventions and outcomes.
I will close my remarks with an invitation to the honourable members of this committee to visit any one of the residences operated by our member organizations. They would welcome the opportunity to demonstrate their ability to address the unique needs of people in conflict with the justice system and discuss how to enhance the supports they provide.
Thank you once again for the invitation to be here today, and I look forward to your questions.
The Chair: Thank you very much, Ms. Desai. We will now go on to questions.
[Translation]
Senator Dalphond: I’ll accept your invitation, Madam Chair.
I have four minutes, Dr. Dufour. You could have three minutes and 45 seconds left if you want to finish your presentation and especially tell us about the lack of resources and difficulties or, from a practical perspective, the implementation of the act and the concerns you have.
Dr. Dufour: Thank you, Senator Dalphond. I had actually finished my opening remarks; there were only a few seconds left. I won’t take any more time.
From a practical point of view, I’m thinking of the situation in Quebec. For example, the Philippe-Pinel National Institute of Forensic Psychiatry is the only institution that would meet the criteria in subsection 16(1) to receive these patients who are in SIUs and who should have a psychiatric assessment.
In fact, what would happen is that there are currently SIUs in a few penitentiaries in Quebec, mainly at Donnacona Institution. If patients can’t see a psychiatrist or a psychologist for an assessment, they would be transferred to the Philippe-Pinel National Institute of Forensic Psychiatry fairly quickly.
We’ve never had a psychiatric emergency at the Philippe-Pinel National Institute of Forensic Psychiatry. They would have been put on a waiting list or admitted to a unit that corresponds to the security level of Donnacona Institution, that is, one of our maximum-security units. We currently have waiting lists of several months.
We have patients all over Quebec and even Canada waiting to come to the Philippe-Pinel National Institute of Forensic Psychiatry because they are too dangerous for their respective psychiatric hospitals. We couldn’t assess them quickly at the psychiatric hospital, given our long waiting lists. I’m talking about the Philippe-Pinel National Institute of Forensic Psychiatry, but basically every psychiatric hospital in Quebec has the same problem.
I practiced in Ontario for six years, and that was the case six years ago with long waiting lists of several weeks or even months. It wouldn’t make sense to see them quickly in psychiatric hospitals.
I would add that patients on waiting lists for psychiatric hospitals for the Philippe-Pinel National Institute of Forensic Psychiatry suffer from a major psychiatric disorder, such as schizophrenia or bipolar disorder, so often these are psychotic disorders where people hear voices or have delusions or disorganized thinking. That’s one of the three symptoms of psychosis.
When they have that repeatedly, it becomes schizophrenia. These are our sickest patients, and 30% of people with schizophrenia are resistant to treatment despite medication; they continue to have symptoms of psychosis. It’s mainly this type of patient who comes to Pinel.
If we had a system where SIU patients had priority over other patients with schizophrenia, allowing them to come to a psychiatric hospital like Pinel would cause an ethical problem. For example, if there are patients in an SIU and, because of a logistical problem, they cannot undergo their mental health assessment, if they don’t have a major psychiatric disorder such as schizophrenia, there’s an ethical problem. It has to be the people who need it the most who come to Pinel. Just because you’re in an SIU that doesn’t mean you have a serious psychiatric problem.
[English]
Senator Prosper: Thank you to the witnesses for coming here today. I have a question for Dr. Dufour and a question for Ms. Eaton.
Dr. Dufour, you provide an interplay between mental health disorders and personality disorders, and I’m curious about that interplay on how it seems to translate to your work. From what I understand from what you added with respect to personality disorders, it’s more rooted in a person’s background and upbringing, if I am correct in that. Can you highlight the interplay between those two and how that translates within the course of your work?
Ms. Eaton, I’m curious about your thoughts with respect to how confinement, whether it’s through SIUs or otherwise, has a way of fostering or worsening pre-existing mental health conditions. You mentioned further that it can create certain mental health conditions. I’m just curious about that dynamic as well.
Dr. Dufour, if you can speak on that.
Dr. Dufour: Thank you, senator. The question is the difference between personality disorders and some more serious psychiatric disorders.
Personality disorders are part of the DSM-5, so our bible in psychiatry when we have all the criteria to make a psychiatric diagnosis. Technically, it is still a psychiatric disorder, and it brings a lot of suffering and dysfunction to the patient because they’re in conflict with themselves, with others and all the domains of their life, so it brings quite a bit of suffering. I don’t want to minimize that this is a mental health issue.
That being said, it is not necessarily a severe mental disorder in the way that schizophrenia and bipolar disorder are more organic psychiatric disorders, more rooted in neurotransmitter imbalance. In schizophrenia, you have too much dopamine in your brain — and I am simplifying this — so you need medication to decrease the dopamine and you are good to go. You will not have psychosis anymore. That’s simple and organic.
When you are in an acute psychotic state, you need to go to the hospital or, at least, a treatment centre within the penitentiary. If you are psychotic and you are in the SIU, then for sure you need to go to a hospital.
However, when someone has a personality disorder, which is 70 to 80% of inmates in the prison system, in the federal prison system as well, they commit crime because of their personality disorders. You don’t need the same intensity of treatment. You don’t need necessarily to take medication. There is no medication that will cure or resolve all of your interpersonal relationship issues. It would be more long-term psychotherapy that would be needed, but this can be done not in an acute setting like a hospital. If the person was outside of prison, it would be done in an outpatient setting. I’m not saying you don’t need treatment, but the type of treatment is not as intense, and you don’t need to get the treatment in hospital.
The Chair: Ms. Desai, I have a question for you. The briefs of both the guards’ union and the CSC emphasized that some prisoners choose to go to SIUs for their own safety. The numbers that CSC provided indicate that more than half of those in SIUs, between 55% and 60%, are there for their own safety, not because they pose a risk to others. Does this indicate a need for increased use of transfers out of prison via section 81 agreements, or for mental health care via section 29 agreements?
Ms. Desai: Thank you for posing that question. There are a couple of things. I think it’s a bigger indication of what’s happening inside the general population, if people feel they need to be in a SIU for their own safety.
But in terms of whether people can be more effectively managed, which I think is the second part of your question, with regard to do we look at transferring them out: In particular, I think our area of expertise within our network is related a lot of times to older people as well who are facing maybe victimization, folks who are 50, 65 and older. I think that’s a population that we can say in terms of risk management and that sort of thing that can be better managed in the community if we are able to create transfers for that population.
I think we have to get a better sense of why people are opting, if that’s the case, to go to SIUs for their own protection. To me, that’s a bigger indication of what’s happening inside the population at large for which we don’t have a lot of remedies in terms of appropriate interventions.
Senator Simons: Ms. Eaton, I had a chance to visit Edmonton Institution in January, which is the maximum security prison for men. I was shocked to learn, when I asked the staff, that the MOU between the federal prisons and the provincial department of health has lapsed. They told me that it is now impossible for them to send prisoners to provincial health care facilities, including the secure forensic unit in Alberta Hospital Edmonton. They now have two options: either they treat patients within the facility, with their own staff; or, if someone is ill enough to be committed, they can transfer them to Saskatoon. Those are the only two options.
As Dr. Dufour outlined, there are plenty of people who suffer from psychiatric and neurological problems that are not acute enough to induce a psychosis as you would see from someone in a bipolar mania or having a psychotic break with schizophrenia.
I am wondering if you know of other provinces that have also suspended their MOUs with CSC and, in light of that, what we make of the provisions of Bill S-230, which may be impossible in jurisdictions where there is no access to provincial health care beds.
Ms. Eaton: Thank you for that question. Unfortunately, I’m not aware of the suspension of MOUs in other provinces, but I would be happy to look into that and report back.
We are experiencing a mental health crisis across the country, and, in fact, the funding that mental health organizations receive is only about 7% or 8% of provincial health budgets, whereas in other jurisdictions such as the United Kingdom, Europe and Australia, they are spending more like 13 or 14% on mental health. I’m not surprised to hear there is this huge issue, and it means that Canadians, incarcerated or not, are waiting for care, and, as Dr. Dufour pointed out, the risk of waiting is intense. People will pay a price. In fact, our health care system will pay the price, because the cost of treating someone much later in their diagnosis will be longer and more expensive than if we were proactive in seeking out actually treating people and being preventive about their mental health care.
As I said in my statement, I do believe that the passage of this bill could be an inspiration, I hope, to provinces and to the federal government to fully fund mental health so that people can receive the care they need.
Senator Simons: I will address this question to Dr. Dufour. The bill calls for people to be treated very promptly within the community and not in prison settings. At the same time, we heard from Correctional Investigator, Ivan Zinger yesterday that there have been dramatic cuts in the number of psychiatric beds within those forensic hospitals. Can you tell us if you have seen the same kinds of cuts at your facility and whether you are aware of why there have been such dramatic cuts in beds in forensic hospitals across the country?
Dr. Dufour: When we look at the number of beds for forensic patients across the country, there has been a big discrepancy on the number of beds versus the number of patients. One of the big problems is that the number of forensic patients depends on the court. If the court renders more verdicts of what we call NCR — those who are not criminally responsible —such as in Quebec, for example, we have double if not triple the ratio of NCR verdicts compared to other provinces — then we need more beds. That is hard to predict because it depends on each of the judge’s decisions along the way.
I forgot to mention this, but I’m the president of CAPL, the Canadian Academy of Psychiatry and the Law, so of the forensic psychiatrists. I’m quite aware of the different situations across the country. The number of beds has not necessarily decreased, but they have not followed the increase of population and the increase of the NCR verdicts. So the ratio has been going down, not because of cuts but because it doesn’t follow the increased number of NCR verdicts. That being said, I don’t think the solution —
The Chair: Thank you, Dr. Dufour. I am very sorry.
Senator Klyne: I have two questions for Ms. Eaton. You mentioned that Canadians spend 7% of their health budgets on mental health, while Australia or the U.K. would be spending or distributing 13 to 14% of their health budget on that. Does that bear out in statistics that show that there is a reduction in uptake of prisoners with mental health issues? What’s the benefit of the doubled spending amount?
Ms. Eaton: The bill particularly suggests that community mental health and hospitals need to be providing service to the incarcerated. The issue is that there aren’t beds available and there aren’t treatment facilities. If we can increase that funding dramatically, there is the ability to look into this bill to support prisoners.
Senator Klyne: Does that extra spending in Australia or the U.K. bear that?
Ms. Eaton: Does it go towards the incarcerated —
Senator Klyne: Do you see the difference?
Ms. Eaton: Do I see the difference — that is an excellent question that I would have to research and find out.
Senator Klyne: Okay. I’ll go to the other question that I’d like to ask you. How should correctional services and reintegration plans be tailored to address the mental health needs of individuals from disadvantaged or minority populations, and what steps can be taken to ensure mental health equity in these contexts?
Ms. Eaton: Reintegration is so important. I believe St. Leonard’s Society of Canada would also have a great answer to this. The Canadian Mental Health Association runs many programs across the country that deal with reintegration into society, and it is hugely important to make that connection back to the community. People who are incarcerated often experience mental illness. It is estimated that about 38% of people who are incarcerated are experiencing a mental illness.
Senator Klyne: Thank you.
Ms. Desai, maybe you have the answer about how correctional services reintegration plans should be tailored to address these health needs?
Ms. Desai: Thank you for the question and the opportunity, and thank you to Ms. Eaton for allowing me to weigh in.
Part of the challenge is the timeliness with which community agencies have the ability to participate in a release planning process. We have certainly been trying to find ways to better advocate for that within the existing policies and law, but I think that challenges remain.
In reviewing this bill, it creates a plan for legislating collaboration or legislating access to the discharge planning process. I would certainly like to specify that there are community-based agencies who specialize in certain areas, like providing mental health supports and community-based beds that are tailored to folks with particular mental health issues. I think that being able to engage with those agencies or reinforcing the resources so there is more of the capacity that Ms. Eaton is referring to. This bill creates capacity for that to happen, and we can enhance that. This is not to say that it is all available and underutilized, but we don’t have a lot of timely access to work on release planning with the correctional service. That is often the case in terms of being proactive in the discharge planning process.
Senator Batters: My questions today will be for Ms. Eaton from the Canadian Mental Health Association. First of all, in considering this bill, Bill S-230, I do share your concerns about capacity and resource availability for mental health concerns. You stated earlier that greater investment is needed and you’re hoping that this passage of this bill may trigger greater federal government spending on that.
Ms. Eaton I’m assuming you are probably referencing the federal government’s failure to spend even one penny thus far in fulfilling their 2021 election promise to establish the Canada Mental Health Transfer — $4.5 billion was the transfer promise. I know that CMHA has been a consistent and vocal advocate that the federal government fulfills that promise. Right now, they are about $2.5 billion behind because they had a projected spending time frame for that. Am I correct that was underpinning your comments on that issue?
Ms. Eaton: Yes, you’re quite right. We were very disappointed that the Liberal government did not live up to that promise. There is also the opportunity through the transfers to provinces through the bilateral agreements that some of that funding may go to mental health, but the beauty of the mental health transfer was that those funds would be earmarked and it would be a requirement that the provinces spend that funding on mental health. We don’t know how much provinces are spending on mental health or whether those bilateral agreements will actually deliver the kind of increase in mental health spending that we are looking for.
Senator Batters: In your opening remarks, you used the phrase “severe mental health problems.” On that, in the first panel we had yesterday, I asked about the definition of “disabling mental health issues,” which is contained in the bill. Senator Pate, who is the sponsor of the bill, stated that she intended that the definition would align with section 37.11 of the Corrections and Conditional Release Act, which includes a number of different criteria, but it also includes refusal of social interaction, acts of self-harm, symptoms of drug overdose and signs of emotional distress or behaviour indicating an urgent need for mental health care.
What do you think, given your vast experience on mental health issues? Do you think that definition is appropriate to guide decisions about transferring inmates to a hospital in the context of Bill S-230, or do you think that it’s perhaps too broad? Would you consider that a different definition of “disabling mental health issues” might be better?
Ms. Eaton: Thank you for that. If definition is fairly broad as it is, and it relies on the ability of the corrections officer to interpret behaviour and to act on it.
I like the broadness of it in some ways, because it does give scope. It is based on behaviour, and it is based on recognizable symptoms that even someone who is perhaps not trained in mental health would be able to observe. We believe that is not a bad starting point for this definition.
Senator Batters: Thank you very much.
[Translation]
Senator Carignan: My question is for Dr. Dufour.
When Commissioner Kelly of the Correctional Service of Canada appeared before the committee, she indicated that there was an agreement with the Pinel Institute, but didn’t specify what it was.
Can you tell us a little bit about the nature of that agreement, in a nutshell, and send it to us in writing, if you can?
Dr. Dufour: Yes, certainly, I think we can use our services to send you the agreement, as long as it isn’t confidential.
Basically, there are two parts: the first is for federally incarcerated women. We have 15 beds, so 15 places, we have a unit at Pinel that is reserved for women, not just from Joliette Institution, but from all across Canada. There’s a process for transferring them when they have serious psychiatric illnesses — I think that was mentioned earlier — and most of the time they have schizophrenia or bipolar disorder, and they need hospital care.
The second part of the contract is for men, so federal inmates. There are five guaranteed beds, which are our units at Pinel — we’re a maximum-security hospital — and more, if there’s a need for more than five beds for men.
Senator Carignan: I’d like to come back to the rather broad definition that was mentioned earlier.
I’ll go back to the definition in section 37.11. We talked about transfers to hospitals, and we talked about inmates from structured intervention units, but the bill doesn’t mention that people only come from a structured intervention unit; it’s much broader. It could be people who aren’t in those units.
The definition of section 37.11, which is the subject of Senator Pate’s bill, reads as follows:
(a) refusing to interact with others;
(b) engaging in self-injurious behaviours;
(c) showing symptoms of a drug overdose; and
(d) showing signs of emotional distress or exhibiting behaviour that suggests that they are in urgent need of mental health care.
According to your expertise, how many people in a federal penitentiary suffer from one of these symptoms?
Dr. Dufour: In my experience outside Pinel, because I’ve practised in several penitentiaries in Quebec and even in regular institutions, I would say spontaneously that most of them have such symptoms at one time or another.
I’d say it’s a little too broad and vague definition. It shouldn’t be a definition that’s different from what happens in the community. For me, inmates in custody shouldn’t have more care than if they were in the community; they should have the same care
I think there’s a problem with access to care, not so much at the federal level as at the provincial level. That’s why we’re talking about the federal government, but the provincial government has even more needs. Many people with schizophrenia don’t receive the treatment they need in prison. At the federal level, in my experience and with the system we have at Pinel, most people with serious psychiatric disorders and psychosis receive care.
To come back to your question, if the definition is too broad, our general psychiatric system will get bogged down at the provincial level with problems that aren’t specific and for which people who aren’t incarcerated wouldn’t normally go to the hospital. They wouldn’t go if they were emotionally distressed or isolated; otherwise we’d need a lot more psychiatric hospitals.
Senator Carignan: Great, thank you.
[English]
Senator Pate: Thank you very much to all of our witnesses and for all of the work that you do every day.
I wanted to ask you a question. When Commissioner Kelly appeared before the committee, she actually said there were 18 beds at Pinel, 15 for women and 3 for men. There has been no mention by you or her, Dr. Dufour, about the fact that on occasion, there was an interest in having possibly a 30-bed unit at Pinel. I’m curious, as part of the passage of Bill C-83, the government allocated specific new resources to contract new mental health beds and mental health advocates for folks who might otherwise be facing isolation.
How many new beds since 2019 has the Correctional Service of Canada contracted with each of your agencies? You, Dr. Dufour, for Pinel; Ms. Eaton for CMHA; and in the community, Ms. Desai and Ms. Kouri for mental health supports.
Dr. Dufour: If I can start, I’m not aware of the whole history of the contract between CSC and Pinel, so I cannot tell you if this number of the 15 for women and I’m pretty sure we have the five beds for men, because they are always full, but I don’t know what the numbers were in 2019.
Senator Pate: Have you had any new beds since 2019 contracted by Correctional Service Canada? No. Okay. Ms. Eaton?
Ms. Eaton: I don’t believe that we have had any funding from CSC for beds across CMHAs, no.
Ms. Desai: Specifically for the kinds of beds you’re referring to, I would say none. I will say that there was a contract put into place with one of the members within our network to open a 10-bed CRF, a community-based residential facility, for people with mental health issues specifically. But not under any different terms as far as I understand for —
Senator Pate: Not pursuant to Bill C-83?
Ms. Desai: No.
Senator Pate: Thank you very much. Those are my questions.
Senator Clement: Thank you to all the witnesses, yes, for the work that you do.
I heard Dr. Dufour talk about the impact of personality disorder and how that leads to involvement in criminal activity. My question is for Ms. Desai. I wonder if you could comment further on the five pillars that you outlined and the role that they might play in why people get caught up in the criminal justice system and the intersectionality there.
Ms. Desai: Sure. Thank you for the question. I appreciate it.
What I was referencing was the social determinants of justice which have been supplementary to the social determinants of health that we see in the health care system. Really what this came down to is income, employment, stable housing, education and health, which are just social factors that lead to exclusion, discrimination and ultimately to inequities in justice outcomes. When those determinants are not met, they increase an individual’s likelihood of engaging in criminalized behaviours and experiencing negative outcomes with the justice system.
It’s part of those factors that need to be taken into consideration as opposed to what is often the stigmatization of people with mental health issues, to assume that they are somehow more likely to be criminally involved because of that mental health issue. It’s a series of factors that I think contribute to that person having been criminalized in the first place because of those other factors not necessarily being met.
Senator Clement: Do we collect sufficient data around those issues so we can understand exactly what you are saying in a research-oriented way?
Ms. Desai: Yes, we’re doing a better job of that on the social determinants of health and trying to understand health equity, and there is a lot of investment in that.
In terms of a parallel investment in research and advocacy and understanding of the social determinants of justice — I try to sit at as many tables as I can to talk about how justice involved people should be part of the conversations around housing, access to employment and breaking down barriers. This is part of taking a person-centred approach. If we’re constantly seeing people as an offender — I appreciate the comments about changing the language in the Corrections and Conditional Release Act to include “person” and taking that person-centred language is so important so we can better advocate and understand what are the components that bring people to become involved with the justice system to begin with. It’s not just mental health alone, and that’s certainly not the case. We need a better job of understanding those factors.
No, I don’t think that the research is there to really strengthen how we advocate for people using the social determinants of justice.
Senator Clement: Thank you.
Ms. Desai: You’re welcome.
Senator Pate: Thank you. I wanted to following up.
One of the things the Parliamentary Budget Officer costed when he was looking at Bill C-83 was the cost of providing the kinds of resources that Rick Sauvé — who, through your organization, has done gang disaffiliation — costed at approximately $200,000 to roll out across the country, and I understand that came from St. Leonard’s.
Were there any discussion about looking at that kind of approach, given that one of the rationale CSC has articulated and the union — we have heard from the union — for keeping people in SIUs is gang affiliation or other conflicts between folks. One of the benefits we have seen in terms of peer-to-peer advocacy is the effectiveness of breaking down those barriers that folks from outside often can’t do and certainly folks working in Correctional Service Canada can’t.
Was there any discussion about expanding or even providing resources for that service?
Ms. Desai: Under Bill C-83 specifically? I tried. I will say we continue to be strong advocates for peer-based supports to go into the institutions. We know that Mr. Sauvé is in very high demand inside the institutions. We do not have nearly enough funding. Although, I will give credit where credit is due: In the Ontario region, some of our members, through the PeerLife Collaborative, have engaged with CSC Ontario to provide a multi-year contract for Mr. Sauvé, and we have actually redeveloped some resources for people to go in and do peer-based supports, specifically to people serving life or indeterminate sentences in the Ontario institutions.
None of that funding has come through Bill C-83 as far as I understand it. We did put together a costing for the minister at the time back in early 2019 when they were invited to consult on the bill. We had actually done some costing for what it would take to be able to bring — again, the SIUs are at scattered sites. In Ontario, we just have Kingston. Being able to bring people from across Ontario from our agencies to Kingston to visit the SIU in Millhaven is ultimately a resource issue. It’s not that we don’t want to come in and do that work, but the term “voluntary organization” doesn’t mean we have the resources to just go in, even though we might be welcomed. We don’t have the actual resources to bring people into the institutions directly to cover the costs that are associated with that.
So, no, we have not seen — we’re hopeful that — in relation to Mr. Sauvé services specifically, as we understand, CSC now has a national lifer strategy that they are just getting under way. We are optimistic that we’ll be able to participate in some way to inform that strategy. I would like to continue to invite the service to be part of understanding how we can make an agreement to provide some resources to get folks in. I think that peer-based supports is a really cost-effective, meaningful, effective intervention if we can figure it out. There are very willing partners in the community to make that work happen.
The Chair: Thank you. Thank you to all the witnesses, and thank you for your patience. I’m sorry I had to cut you off from time to time, but thank you for being here, and we look forward to future meetings with you. Thank you.
Senators, I have some things I would like to discuss with you. First, most probably, there will be no meeting next Wednesday. That is still to be clarified. So our next meeting will be next Thursday, which will be clause by clause of this bill.
Then we will be studying Senator Boyer’s bill, Bill S-250. After that, it will be Senator Batters’s bill, Bill C-291. Thank you senators, and thank you witnesses for being here.
(The committee adjourned.)