Thursday, May 30, 2019

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its

THIRTY-FIFTH REPORT

Your committee, to which was referred Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, has, in obedience to the order of reference of May 2, 2019, examined the said bill and now reports the same with the following amendments:

1. Clause 1, page 1: Add the following after line 8:

“mental health assessment means an assessment of the mental health of a person conducted by a medical professional with recognized specialty training in mental health diagnosis and treatment, such as a psychiatrist, psychologist or psychiatric nurse or a primary care physician who has had psychiatric training. (évaluation de la santé mentale)”.

2. Clause 2, page 1: Add the following after line 13:

“(c.1) the Service considers and gives preference to alternatives to carceral isolations, notably through a broad interpretation — informed by human rights — of sections 29, 81 and 84, thereby recognizing the fundamental role of transfers of incarcerated persons to community-based institutions funded by the Service in promoting rehabilitation, reintegration and public safety;

(c.2) the Service ensures the effective delivery of

(i) programs to incarcerated persons for the purpose of rehabilitation, including educational programs, vocational training and volunteer programs, and

(ii) including alternatives developed in accordance with sections 29, 81 and 84;”.

3. Clause 3, page 2: Add the following after line 2:

“(2.01) As part of the development of every offender’s correctional plan under subsection (1), the institutional head shall refer, in the prescribed manner, the offender for a mental health assessment as soon as practicable — and no later than 30 days — after the offender is received into the penitentiary.”.

4. Clause 7, pages 3 and 4:

(a) On page 3,

(i) replace line 23 with the following:

“(a) to a hospital, including any mental health facility, or to a provincial correctional facility, in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations;

(b) within a penitentiary, from an area that has been”,

(ii) replace lines 28 and 29 with the following:

“28; or

(c) to another penitentiary, in accordance with the”, and

(iii) replace lines 31 to 34 with the following:

“section 28.”; and

(b) on page 4,

(i) add the following after line 5:

“(1.1) Within 24 hours of a person being transferred into a structured intervention unit in a penitentiary under subsection (1), the person who authorized the transfer shall refer, in the prescribed manner, the inmate for a mental health assessment.”, and

(ii) add the following after line 11:

“29.02 If a mental health assessment or an assessment by a registered health care professional concludes that an incarcerated person suffers from any disabling mental health issue, the Commissioner shall authorize that person’s transfer to a psychiatric hospital in accordance with section 29.”.

5. Clause 10, pages 5 and 15:

(a)  On page 5, replace lines 19 and 20 with the following:

“33 (1) Any confinement in a structured intervention unit is to end as soon as possible. In particular, no such confinement is to have a duration of more than 48 hours unless authorized by a Superior Court under subsection (2).

(2) A Superior Court may, on application by the Service, extend the duration of the period referred to in subsection (1) as the Court considers appropriate if, in the opinion of the Court, the extension is necessary for a purpose described in subsection 32(1).”; and

(b) on page 15, replace line 15 with the following:

“ment and sections 29.01, 33, 35 to 37.4 and 37.81 to 37.83 apply”.

6. Clause 14, page 16: Replace lines 7 to 15 with the following:

“48 A staff member may not conduct a strip search of any person confined in a penitentiary without individualized reasonable grounds.”.

7. Clause 23, page 18:

(a) Replace line 29 with the following:

“er, including his or her family and adoption history.”; and

(b) replace lines 31 to 33 with the following:

“to be taken into consideration for decisions respecting the assessment of the risk posed by an Indigenous person, but only to decrease the level of risk posed by such a person.”.

8. Clause 24, page 19: Replace lines 1 to 11 with the following:

“24 Section 81 of the Act is replaced by the following:

81 (1) The Minister or a person authorized by the Minister may, for the purposes of providing correctional services, enter into an agreement with

(a) an Indigenous organization;

(b) an Indigenous governing body;

(c) a community group that focuses on the needs of a disadvantaged or minority population;

(d) a community organization that serves a disadvantaged or minority population; or

(e) any other entity that will provide community-based support services, including to other specific populations.

(2) For the purposes of paragraphs (1)(c) and (d), a disadvantaged or minority population includes any population that is marginalized on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, or disability.

(3) An agreement under subsection (1) may provide for payment by the Minister or a person authorized by the Minister in respect of the services provided by an entity described in paragraphs (1)(a) to (e).

(4) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer a person confined in a penitentiary to an entity described in paragraphs (a) to (e) with the consent of that entity and the person serving a sentence.

(5) The Commissioner is to take all reasonable steps to

(a) identify entities described in paragraphs 1(a) to (e) for the purpose of entering into agreements; and

(b) seek to transfer persons confined in a penitentiary to an entity with which an agreement exists, particularly in cases in which the person is a member of a disadvantaged or minority population that the entity seeks to serve.

(6) No person confined in a penitentiary is to be denied a transfer to an entity with which an agreement exists if the person and the entity consent unless the transfer is, as determined by a Court of competent jurisdiction, not to be in the interests of justice.”.

9. Clause 25, page 20: Replace lines 3 to 10 with the following:

“84 (1) If a person confined in a penitentiary requests the support, on release, of an entity referred to in subsection (2), the Service shall provide that entity with an opportunity to propose a plan for the person’s release and integration into the community in which the person is to be released.

(2) The following are the relevant entities for the purposes of subsection (1):

(a) the community’s Indigenous governing body, if applicable;

(b) an Indigenous organization that is active in the community;

(c) a community group that focuses on the needs of a disadvantaged or minority population;

(d) a community organization that serves a disadvantaged or minority population; and

(e) any other entity that provides support services in the community, including to other specific populations.

(3) For the purposes of subsection (2), a disadvantaged or minority population includes any population that is marginalized on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, or disability.

(4) The Service shall

(a) take all reasonable measures to inform confined persons about the entities described in paragraphs (2)(a) to (e); and

(b) give every entity that has proposed a plan referred to in subsection (1) adequate notice of the person’s parole review or their statutory release date, as the case may be.

(5) If the Parole Board of Canada makes any decision that is inconsistent with a plan that has been proposed by an entity for the release and integration of a person into a community, it shall provide written reasons for its decision.”.

10. New clause 35.1, page 23: Add the following after line 34:

“35.1 The Act is amended by adding the following after section 198:

PART III.1

Unfairness in the Administration of a Sentence

198.1 (1) An incarcerated person may apply to the court that imposed the sentence being served for an order reducing the period of their incarceration or parole ineligibility as the Court considers appropriate and just in the circumstances if, in the opinion of the Court, there was unfairness in the administration of a sentence.

(2) In subsection (1), unfairness in the administration of a sentence includes any decision, recommendation, act or omission of the Commissioner or any person under the control and management of, or performing services for or on behalf of, the Commissioner that affected the person and that was

(a) contrary to law or an established policy;

(b) unreasonable, unjust, oppressive or improperly discriminatory;

(c) based wholly or partly on a mistake of law or fact; or

(d) an abuse of discretionary power.

(3) An application under subsection (1) must be made

(a) no later than 60 days after

(i) the events giving rise to the alleged unfairness in the administration of a sentence occurred,

(ii) the Service has provided to the incarcerated person any incident report or other document related to the events giving rise to the alleged unfairness in the administration of a sentence, or

(iii) the person is informed of the conclusions and recommendations of the Correctional Investigator under section 178 in relation to these events; or

(b) within any other period of time that the Court may establish, at its discretion and at any time, if that period is greater than the period referred to in paragraph (a).

(4) Nothing in this section abrogates or derogates from any other right or remedy that may be available to an incarcerated person, including a right or remedy under this Act.”.

11. Clause 40.1, pages 24 and 25:

(a) On page 24, replace lines 25 to 31 with the following:

“40.1 (1) At the start of the second year after the day on which this section comes into force, and at the start of the fifth year after the day on which this section comes into force, a comprehensive review of the provisions enacted by this Act must be undertaken by a committee of the Senate and a committee of the House of Commons that may be designated or established for that purpose.

(2) The review referred to in subsection (1) must include a review of the progress that has been made in eliminating practices that involve separating an incarcerated person from the general population of a penitentiary.

(3) A committee referred to in subsection (1) must, within one year after a review is undertaken under that subsection, submit a report to the House of Parliament of which it is a committee, including a statement setting out any changes to the provisions that the committee recommends for the purpose of ensuring the elimination of practices that involve separating an incarcerated person from the general population of a penitentiary.”; and

(b) on page 25, delete lines 1 to 7.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations

to the thirty-fifth report of the Standing Senate Committee on Social Affairs, Science and Technology (Bill C-83)

Your committee has, to the best of its ability, examined the subject matter of Bill C-83 and has worked diligently under challenging time constraints.

Your committee requests that the constitutional questions that arose during the study of Bill C-83 be more adequately addressed by the Chamber at third reading.

Training:

Your committee is concerned that Bill C-83 does not prescribe mental health training programs and relevant competencies for Correctional Service Canada staff to assist them in identifying and supporting individuals with mental illness who are incarcerated, which is important to their rehabilitation.

Structured Intervention Units programming:

Your committee is concerned that Bill C-83 does not provide information on the nature of the therapeutic or rehabilitative programming provided to individuals who are incarcerated in Structured Intervention Units (SIU); the criteria for selecting individuals for the programming; or how such programming will be evaluated. This information is an important component of understanding and improving the mental health of individuals placed in SIU.