THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 6, 2025
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 10:32 a.m. [ET] to study Bill S-205, An Act to amend the Corrections and Conditional Release Act.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. My name is David Arnot. I’m the chair of the committee.
I invite my colleagues to introduce themselves.
Senator Batters: Denise Batters, Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Pate: Welcome to all of you. I’m Kim Pate. I live here in the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabe.
[Translation]
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Dhillon: Good morning. Welcome. Baltej Dhillon, British Columbia.
The Chair: Thank you. Honourable senators, we are meeting to continue our study of Bill S-205, An Act to amend the Corrections and Conditional Release Act.
We are pleased to welcome two witnesses, Dr. Ivan Zinger, Correctional Investigator of Canada, who has brought a report to us for our consideration; and Professor Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, by video conference.
Thank you, witnesses, for appearing here today. As is our custom, you will be given a chance to make some opening remarks. I would ask that you keep them to five minutes. Following that, there will be questions from the senators.
Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator: Thank you for the opportunity to appear before the committee today to further your review of Bill S-205. I appeared before this committee in February of last year to speak on what was then Bill S-230.
I would like to address the four key areas raised in this bill, and I will highlight related concerns discussed in my office’s annual reports.
First, with respect to alternatives to incarceration for individuals with serious mental health issues, for many years, my office has consistently stated that individuals with severe and persistent mental illness — those experiencing acute psychiatric crises, chronic self-harm or suicidal ideation — should not be housed in federal penitentiaries. These individuals require specialized care that correctional institutions are not equipped to provide.
Correctional Service Canada, or CSC, operates five regional treatment centres, or RTCs, which function as inpatient mental health facilities or psychiatric hospitals. These centres have a combined capacity of approximately 600 beds for men and only 20 for women. My last annual report highlighted that these facilities, often located within aging prison infrastructure, increasingly serve as holding centres for aging and infirm individuals rather than providing the required psychiatric care.
In that report, I recommended that RTCs be formally redefined as intermediate mental health care facilities with limited capacity to manage emergency psychiatric cases. Those with acute needs should be transferred to external, community-based psychiatric hospitals that are better suited to providing long-term care.
CSC currently has the legal authority to transfer individuals to external provincial psychiatric facilities, but in my opinion, it is not making good use of this option.
The bill’s provision to facilitate hospital transfers is a step in the right direction, but it must be supported by clear eligibility criteria, adequate funding and formal agreements with provincial health systems to ensure timely and appropriate care.
Second is Structured Intervention Units, or SIUs. Since the 2019 legislative changes that replaced administrative segregation with SIUs, my office has monitored their implementation closely and documented several ongoing concerns, including persistent gaps in data collection that make it difficult to assess compliance with legal requirements; gaps in legal compliance regarding time outside cells and meaningful human contact; that Black and Indigenous individuals remain grossly overrepresented in SIUs, raising concerns about systemic discrimination; independent reviews that are often limited to paper-based assessments, lack binding authority and are frequently disregarded; and individuals held in other restrictive environments — such as voluntary limited association ranges, secure units for women and therapeutic ranges — often experience similar or worse conditions than those in SIUs, yet do not benefit from the legal protections afforded to SIU inmates.
These findings have been corroborated by the former independent advisory committee and the Standing Senate Committee on Human Rights. The bill’s proposal to limit SIU confinement to 48 hours unless extended by court approval introduces a mechanism for external oversight. However, practical implementation will require careful consideration to avoid placing undue strain on the courts and provincial health care systems.
[Translation]
I will now talk about the improved access provided for in sections 81 and 84 of the act.
Bill S-205 proposes expanding access to sections 81 and 84 of the Corrections and Conditional Release Act, which were initially designed to reduce the overrepresentation of Indigenous people in federal detention.
The bill would extend eligibility to non-Indigenous people and expand the scope of service providers beyond Indigenous organizations.
The 2023 investigation led by my office into the experiences of federally sentenced Indigenous people shows that these provisions remain seriously underused. Indigenous healing lodges run by Indigenous communities under section 81 are underfunded compared to healing centres run by Correctional Service Canada, or CSC. Bed capacity is extremely limited at 138 beds, a number that is around 2% of the Indigenous prison population.
CSC continues to flout its obligations toward Indigenous people and communities. These concerns were raised on many occasions by the Truth and Reconciliation Commission of Canada, the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Auditor General and various parliamentary committees.
While I understand the intent behind expanding access, it risks diverting resources and attention away from Indigenous communities and potentially jeopardizing the initial objective of the provisions. I strongly recommend that the committee directly consult with Indigenous rights holders before moving forward with the amendment.
Lastly, the provision of sentence reduction as a recourse to a rights violation addresses the long-standing problem of the CSC’s human rights violations and legal infringements. There are historical precedents for considering sentence reduction as a recourse. In 1996, Judge Louise Arbour recommended that the Department of Justice explore sentence reduction mechanisms in cases of illegality, serious mismanagement or unfairness. Unfortunately, the recommendation was never implemented.
Since then, my office has recognized that sentence reduction can be appropriate in exceptional cases where individuals have suffered demonstrable procedural unfairness or rights violations. For example, during the COVID-19 pandemic, access to the main correctional programs was severely restricted, which delayed eligibility for conditional release and prolonged incarceration through no fault of the person. Conditions during lockdown were much harsher than usual. In some cases, release was delayed.
Beyond the pandemic, systemic delays in providing programs, the lack of culturally appropriate services and prolonged conditions resembling solitary confinement continue to disproportionately affect Indigenous and racialized people, people with mental health needs and maximum security inmates.
My office supports a more in-depth exploration of the provision, which includes drafting clear criteria and guarantees, and establishing an independent review process to ensure transparency, fairness and consistency in its application.
I will be pleased to answer your questions. Thank you.
[English]
The Chair: Thank you, Dr. Zinger.
Debra Parkes, Professor and Chair in Feminist Legal Studies, Peter A. Allard School of Law, University of British Columbia, as an individual: Good morning, senators. Thank you for the opportunity to speak to this bill.
In fact, I spoke before a senate committee in 2019 considering what was then Bill C-83, the current law that establishes Structured Intervention Units, or SIUs. I spoke that day alongside Professor Allan Manson of Queen’s University. Professor Manson was a towering figure in Canadian prison law and prisoner rights. He has recently passed away. At that time, Professor Manson and I highlighted the ways that the then-bill, now current law, does not meet constitutional standards.
I come to you as a scholar of constitutional law and someone who has been working on issues of prison oversight and accountability from a constitutional rights perspective for 25 years.
Six years after that hearing in 2019 and the implementation of the law, it is no surprise to me, unfortunately, that the Structured Intervention Unit regime suffers from some of the same harm and constitutional defects as the Corrections and Conditional Release Act regime of administrative segregation that was declared invalid in multiple court decisions from the British Columbia and Ontario courts.
Bill S-205 would amend the Corrections and Conditional Release Act in a number of key ways to address these constitutional problems and conditions that amount to torture, and therefore, I will speak to some of those today.
I can speak to some of the other aspects, but in the short minutes I have today, I will touch on the constitutional requirement of effective, external oversight of placements in isolation, whatever it is called; the inadequacy of the Independent External Decisions Maker, or IEDM, regime from a constitutional rights perspective; and the needed change to a form of judicial oversight that is likely to be able to enforce those constitutional rights.
I said in 2019 — and, sadly, it has been proven true — that the fatal flaw of the legislation from a human rights and constitutional perspective is that there is no meaningful, independent, external oversight of placements in SIUs or other forms of isolation.
It is evident from a reading of the key constitutional cases — both in B.C. and Ontario — and the government’s own evidence about the operation of SIUs, as analyzed by the Structured Intervention Unit Implementation Advisory Panel and by the Correctional Investigator, as you’ve just heard, that the operation of these units violates the Charter standards articulated in those cases and is the law of the land.
First, there are no caps on the amount of time someone can spend in an SIU. There are just benchmarks for internal or external file reviews without due process and without any enforcement teeth. The Structured Intervention Unit Implementation Advisory Panel has documented how long stays in SIU persist, not unlike the rates of the previous administrative segregation regime.
Second, the IEDM review is wholly inadequate to meet Charter standards. These are paper reviews. There is no requirement for an in-person meeting, no oral hearing and no meaningful due process.
Third, the courts have made clear that it does not matter what the units are called. It is the substance of the conditions of confinement that must comply with the Canadian Charter of Rights and Freedoms.
In many cases, IEDMs only review placements after the person has been there for 90 consecutive days. There are some points at which the IEDM may review decisions earlier, and there is a power to direct that a person be removed but no means to enforce it. They can direct it and make that recommendation, but it’s ultimately, as Mr. Zinger just said, not complied with by Correctional Service Canada.
This regime is not in any way responsive to the factual and legal findings about the harms of segregation that are documented as early as 48 hours and the international cap of 15 days imposed by the UN Nelson Mandela Rules.
Bill S-205 is the opportunity to actually comply with the Charter rulings and prevent Charter breaches. The bill appropriately starts from the position that all placements in effective isolation, whether it is called SIU or not, are extraordinary and are generally prohibited. If a person is placed in isolation for 48 hours, that triggers an automatic review by the court. This is not unlike other forms of detention. We have bail reviews under the Criminal Code. The bill appropriately, in my view, uses the 48-hour benchmark because of the evidence of harm arising as early as that in the literature, and in the testimony before the courts, it was found as a fact, particularly in the Ontario Court of Appeal ruling in the Corporation of the Canadian Civil Liberties Association case.
A model of judicial oversight is in keeping with the serious implications and extraordinary nature of placement in any form of prolonged isolation in a prison setting. If this harmful practice is used, it needs to be used sparingly and for very short periods of time. We have seen in the past that when under judicial scrutiny — as when the two solitary confinement cases were before the courts — the numbers of people in segregation went down substantially.
There are other examples I can talk about in the question period about how the numbers can vastly fluctuate and can be reduced when there are concerted efforts and judicial attention around what is going on in the prisons. A truly independent judicial check on this power to keep people in conditions amounting to torture is required.
The Correctional Investigator, Mr. Zinger, who is here today, has previously documented how Canada has the best staff-resourced correctional system in the world, as I understand it — though it might fluctuate a bit — with an astounding 1‑to‑1 prisoner-to-staff ratio that has been documented by his office.
With this extraordinary level of resources, and the evidence that when required to do so, alternatives to harmful torturous practices can be found, there is no reason that these requirements cannot be met.
There are, of course, safety and security issues that arise in the prison context. However, there are a range of tools that can be used to address them. There are examples from other jurisdictions, including the City of New York and the U.S. federal system in terms of de-escalation requirements and resources allocated to strongly limiting the use of solitary confinement to very short periods of hours or short days.
The resources that the government has allocated for the SIU regime could be allocated to more productive means to address these safety and security needs.
In the interests of time, I’ll stop there and allow time for questions.
The Chair: Thank you, Professor Parkes.
Senator Batters: Thank you to both of you for being here to help us with our study of this bill. I’ll start with Mr. Zinger.
Mr. Zinger, under the Corrections and Conditional Release Act, Correctional Service Canada has an obligation to provide federally sentenced individuals with essential health care and mental health care that supports their rehabilitation and successful reintegration into society. The act also specifies that the five regional treatment centres are meant to offer specialized short-term services aimed at stabilizing patients before they return to their parent institutions. However, in your most recent report, you indicate that these centres are now being used to house an aging and increasingly disabled population and that nearly 30% of those admitted do not meet CSC’s own mental health admission criteria. You were talking about the very minimal numbers of beds for both men and women in those facilities.
What do you have to say about the gap between the mandate set out in law and the reality observed on the ground?
Mr. Zinger: Thank you, senator, for that question. It is true that when we went out and looked at the five regional treatment centres, we were quite surprised to see that about 30% of those who are housed in them do not meet any sort of forensic psychiatric diagnosis that would justify occupying a psychiatric bed. We are of the view that many of those individuals could be managed safely in the community at much lower cost and that there are plenty of opportunities out there for the service to partner with either existing NGOs or even the private sector to provide them with an alternative to the penitentiary environment, which is, unfortunately, overkill when it comes to managing these individuals.
I have made it very clear to the commissioner as well as the Minister of Public Safety that even when we are talking about cuts right now, one way of saving money would be to transfer a lot of those individuals who are palliative and receiving end-of-life care, are bedridden, have dementia, have Alzheimer’s, have grave or very severe mobility issues or are receiving extensive health care services could be managed more humanely, in a way more consistent with human dignity, in the community without undue risk and for a fraction of the cost that it requires.
Research suggests that keeping somebody aging and dying in a penitentiary setting can cost as much as two to four times more. We know right now that the average annual cost of keeping a single person in a penitentiary on average is over $200,000. So the savings are there.
For me, this should be part of the government’s attempt to rationalize and force the service to deal with these individuals in a much different way.
Senator Batters: How has the government responded to your findings? You referred to the Minister of Public Safety. I’m not sure if that’s the current or previous minister. I also wonder if the government has taken any concrete steps to address the situation or to act on your recommendations. Do you find that this problem has largely remained unchanged or perhaps worsened? I am also wondering if there was anything to address any of these issues in this week’s budget.
Mr. Zinger: This is not a new issue but one I keep hammering the government on. In conjunction and jointly with the Canadian Human Rights Commission, we did a systemic investigation on aging and dying in penitentiaries that dates back to 2018 and made several recommendations. Unfortunately, Correctional Service Canada has failed to endorse any of our recommendations or look at alternatives for these individuals.
When it came to the latest proposed cuts to the government, of 15%, I proactively reached out to the Minister of Public Safety, to the Deputy Minister of Public Safety as well as to the commissioner to say that this is an opportunity to save some money and do the right thing. I made it quite clear that these are the kinds of proposals that should be part of the thinking in terms of when it comes to coming up with the 15% contribution to that deficit.
Senator Batters: Is there anything in the budget?
Mr. Zinger: No. So far, I have not seen anything specific in the budget itself or from the Minister of Public Safety, the deputy minister or the commissioner.
Senator Batters: Thank you.
[Translation]
Senator Saint-Germain: Mr. Zinger, it’s a pleasure to see you again. I’m reminded of when we first met, back when I was an ombudsperson and you were a senior department official and later a correctional investigator. I’ve always appreciated our departments’ solid working relationship, your and your team’s rigorous work and your first-hand, on-the-ground expertise.
I read the bill while recalling my 10 years as the Quebec ombudsperson, when I dealt with correctional matters. I have a general question that I would like you to elaborate on. It is strictly about the bill we are studying.
Do you think the bill could be implemented with the current constraints and what it would impose on the judicial system, provincial and territorial health and social services, and community organizations? These include Indigenous organizations, but also the ones that the bill adds in paragraphs 81(1)(c) and 81(1)(d), in other words, “a community group or organization that serves a disadvantaged or minority population” — previously defined in the bill — and “any other entity that provides community-based support services.” Three levels come into play: the judicial system, hospital and social services, and community organizations.
Mr. Zinger: When I read the bill, I had a few questions. There are definitely obstacles with this bill that need to be dealt with. That said, it depends on the level of consultation that your committee wants to do to ensure a commitment is made to eliminate all these obstacles.
Let’s talk about transferring people with serious mental health issues. It’s clear to me that money has been set aside that could be reallocated to ensure that people with serious mental health issues, who commit self-harm or who are suicidal can be appropriately transferred, with appropriate funding, to provincial partners. For example, we know that CSC negotiated a $1.3‑billion allocation just to build and replace the Atlantic Regional Treatment Centre by building a facility inside the walls of the Dorchester Penitentiary. To me, this is an exercise in futility, costing an exorbitant amount to manage around 150 people.
It would be more appropriate to use this kind of funding to help the provinces look after these people. There are around 150 people spread across the five Regional Treatment Centres in the country. CSC tells us that they have contacted many provincial hospitals and no one wants to take these people in. However, I don’t think they made a serious effort. They could have said that they have $250 million for 30 patients and asked them if they were willing to take part in a federal-provincial partnership. If they’d started with something like that, plenty of hospitals would have at least been interested in studying this kind of partnership. These obstacles can be —
Senator Saint-Germain: If I may, I will interrupt you here.
I also understand that the minister rejected your recommendation concerning the Shepody Healing Centre. You tell us that, as far as you know, the provincial hospitals and psychiatric treatment centres are not able to take on the increased demand for transfers.
Could you now tell us more about the judicial system and the increased responsibilities that will now be put on it? What is your read on the capacity of the judicial system?
Mr. Zinger: I would just like to come back to the issue of mental health. The committee really needs to talk to some of the hospitals contacted by CSC to see what kind of discussions they had. I feel that CSC has always wanted to keep the resources for itself and present options that discouraged transfers.
In addition, if provincial courts are asked to do reviews after 48 hours, they need to be brought to the table and asked if this is something that can be done with the current resources. Would it create a disproportionate burden that would be hard to manage? It is important to ensure that consultations include the people who are potentially affected by the bill.
Senator Saint-Germain: My one quick final point concerns the community reintegration resources, particularly the ones targeted by paragraphs 81(1)(c) and 81(1)(d).
Mr. Zinger: As I said, we published two reports, one in 2013 and the other in 2023. In the last report, the one on Indigenous people, we clearly saw that CSC funds the healing centres mentioned in section 81 at 62¢ on the dollar compared to the CSC-run healing centre. There is chronic underfunding. I feel this is inappropriate and discriminatory.
We could argue whether expanding their mandate is a good thing or not, but right now there is an ongoing problem. CSC has not properly implemented the provisions contained in Sections 81 and 84 for over 30 years. As I told you previously, fewer than 2% of Indigenous prisoners are now in the healing centres provided for in Section 81. It’s a tiny amount. Before we consider expanding CSC’s mandate, we need to ensure that it acts in accordance with its obligations, which I feel are quasi‑constitutional when it comes to Sections 81 and 84.
Senator Saint-Germain: Thank you.
Senator Miville-Dechêne: My question is for Mr. Zinger.
I went through your report and was struck by this sentence:
Despite decades of investment, CSC remains unable to meet the complex mental health needs of this population.
The word “unable” says it all.
I want to come back to something that was said earlier. Over half of the people in structured units, in fact over 75%, did not spend the minimum number of hours outside their cell. Why do you think the minimum requirements are not met in structured intervention units? I will remind you of what Debra Parkes said earlier about the very high number of employees in correctional services. The ratio is practically one employee per incarcerated individual. Is this a staff shortage problem or an organizational one? What do you think?
Mr. Zinger: In 2019, the act was amended to switch administrative segregation to a new regime.
Compliance was emphasized, meaning that CSC would be able to clearly show that the individuals would be out of their cell for a minimum of four hours per day, including two hours spent in contact with other people. At the time, CSC tried to implement a system that was supposed to resolve the compliance problem. That involved someone opening the door with a cell phone and tapping on the door, at which point a sensor would indicate when the door was opened and the type of interaction that would take place, for instance. This method was abandoned quite quickly due to technical issues. CSC continues to have trouble clearly showing that the act is being implemented to the letter.
Senator Miville-Dechêne: [Technical difficulties] or staff organization?
Mr. Zinger: I’m not sure if I can tell you that. What I can tell you is that the reason their compliance rate is below the threshold is that inmates themselves often don’t want to go outside. That causes a problem. We have to wonder why they don’t want to go outside. Often, it’s because the idea of walking around by themselves in a tiny concrete courtyard is less than tempting.
There are many reasons why they don’t want to go outside. Given a chance to go outside with other people when they feel in danger, they will say no. I think that’s one of the challenges of ensuring absolute compliance. I’d say that in general, compared to pre-2019, they clearly go out more than they used to. They have more opportunities to talk with the staff or other inmates, but the conditions are far from optimal.
Senator Miville-Dechêne: Thank you.
[English]
Senator Prosper: Thank you to both of our witnesses. I truly appreciate the work you do. It’s so informative. My question is for both of you. I really appreciated your testimony.
There seems to be a cultural trait within CSC, almost within the DNA of the institution itself, where they think a certain way. There is a certain slant they have on things, and thus the need for oversight. I’m sure the issues are complex, but certainly, there is a path forward. I’m wondering if you can talk about that culture within CSC given your experience.
Dr. Zinger, I have looked at the book Spirit Matters. Can you elaborate on why the title is Spirit Matters?
Ms. Parkes: That is a really good and important question. Most recently, the implementation advisory board looked at the government’s own data on SIUs, how they’re being used and how the processes work and still amount to conditions that amount to torture and violations of Charter rights.
This is something I have been working on, and my predecessor here at the University of British Columbia, or UBC, Professor Michael Jackson, has been working on these issues since the 1970s. There’s such well-documented evidence now that external oversight is required and that it is in the nature of imprisonment. It is in the culture that develops. Institutional responses are developed, and there is a path dependency there. There are concerns about having a truly meaningful external review, and that was resisted in this bill. That’s what the courts had called for — truly external independent review — and what we got is a system that is not that.
If I could, in answering that, I will talk briefly about this question of whether the courts have the capacity to deal with this because it seems to be related to the question of why and how we need this. Justice Arbour documented this in 1996 and talked about meaningful Charter remedies and subsections 24(1) and 24(2) of the Charter, which have changed police and prosecutorial behaviour, and we need that as well in the correctional system. It is through meaningful judicial oversight, although that is not a panacea for everything. We need changes in other areas. But at least when we have well-documented Charter rights violations, we need a mechanism of review for that.
As for capacity, we don’t say to the police, “We don’t have court resources to prosecute” when there are violations of the law and “You shouldn’t be laying charges because we don’t have court capacity.” In the prison context, if we have violations of the law, there needs to be a meaningful review and remedy for that. What we have under the existing law is not a meaningful review and remedy, so we need that court review. I’ll leave it there for now, and I’m happy to answer other questions.
Mr. Zinger: I think corrections is no different than law enforcement, national security or the military in terms of its organization. There is a severe allergic reaction to any sort of oversight. If we look at even the SIU bill, the 2019 bill, if you remember, it took three attempts — three separate bills — to actually get there, and we got the lowest denomination possible, which is a paper review of decisions, which ultimately can be disregarded by Correctional Service Canada and the commissioner herself.
In terms of how to do public policy, this particular piece of legislation with respect to the SIU is probably one of the best examples of what not to do. It’s clear to me that until the day CSC actually embraces public scrutiny, oversight and the benefit of having external eyes on its organization, the culture will continue to be bunker-like and not open. The service will continue not to be a fully open, accountable and responsible organization.
Madam Justice Arbour, when she looked at it — I think it’s as relevant as when it was written — she said to let the service try to resolve it internally when it comes to a placement and then let independent adjudication kick in. Her preferred option — because I think she foresaw into the future — was the courts.
So after a certain amount of time, you call upon the courts to ask if it is appropriate to continue the placement. I think corrections would definitely benefit from additional oversight.
I have also written extensively on the necessity for Canada to sign and ratify the optional protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which would bring additional oversight into penitentiaries and all places of detention across Canada. I’ll leave it at that.
As to Spirit Matters, it was my predecessor in 2013 who came up with the title, which I think is most appropriate, and I’m actually quite proud to have been associated with his leadership and to have had the opportunity to do a 10-year follow-up, which unfortunately doesn’t speak favourably on the service’s ability to have actually moved the yardstick forward on this one.
The Chair: We have six senators ready to ask questions. I’m going to arbitrarily suggest that we finish by 11:40. This means that the questions have to be a little bit tighter and certainly the two witnesses might have to present their answers in writing. I want to make sure that all the senators get a chance to ask their questions.
Senator Simons: I’ll move quickly. In yesterday’s testimony, Senator Batters had a very interesting exchange with Ms. Doyle about how many prisoners have disabling mental health issues. I was quite taken aback when Ms. Doyle said there were about 160 prisoners in the entire correctional system who have serious, disabling mental health issues.
Dr. Zinger, does that seem like an accurate number to you?
Mr. Zinger: The number was 160?
Senator Simons: Yes, 160. Is that how you recall it too?
Senator Batters: I kept asking her to refer to the actual definition because I thought that was acute and intermediate, and she kept talking about the acute level, the highest level.
Senator Simons: Still, 160 seemed a very low number to me.
Mr. Zinger: I agree. Correctional Service Canada has, as I mentioned in my opening remarks, about 600 psychiatric beds that are supposed to cater to very acutely mentally ill men, and about 20 for women.
And then there’s the possibility of Philippe-Pinel also for an additional 20 individuals. So I’m not quite sure. What I can tell you is that when it comes to figuring out prevalence, it’s a really challenging business. Because if you ask about the prevalence of any mental disorder among the prison population at the federal level, it’s going to be upwards of 80% because that includes, for example, personality disorders or substance abuse disorders. If you try to narrow it down to say major mental illness — that includes, for example, depression or bipolar or schizophrenia — then it looks to be about 12% for men and about 16% for women.
Senator Simons: So it would be more than 160 I’m guessing.
Mr. Zinger: Yes. And if you look at many people are requiring upon admission psychological or psychiatric services, we’re looking at about 30% for men and upwards of almost 50% for women. And an area that we haven’t discussed yet but which is also of grave concern to me is cognitive deficits, which are completely separate from mental illness, but these individuals require services and support, and they need to go through screening and a proper assessment.
We have an inordinate number of people with intellectual developmental disorders, fetal alcohol syndrome, autism spectrum disorder, traumatic brain injury, attention deficit and hyperactivity disorder. These are individuals that don’t fare well in corrections and are basically being punished because they have challenges when it comes to impulse control or making sound decisions.
Senator Simons: I did want to ask, Ms. Parkes and Dr. Zinger, regarding Structured Intervention Units, it was not supposed to be a semantic change in nomenclature. The idea was there was to be structured intervention. I’m wondering if you could very quickly tell me if you believe that SIUs are providing that intervention and care and support in a way that the old solitary confinement did not. Has there been a qualitative and quantitative difference?
The Chair: I think, Dr. Zinger and Professor Parkes, you will have to answer that in writing. It is an important question and needs to be explored, but we are going to run out of time here.
Senator Simons: Thank you, Mr. Chair.
The Chair: Do you know how to do that? I am sure you have done it before. You will give the written answers to the clerk. Thank you.
[Translation]
Senator Oudar: Thank you to the witness for being with us today. My question is for Mr. Zinger and concerns section 198 of the bill, which creates a new recourse allowing the court to reduce a sentence due to unfairness in the administration of a sentence. In accordance with the criteria set out in the section, unfairness can be defined as discriminatory, unfair, or unreasonable administrative decisions.
In your report, you seem to imply that it should be limited to exceptional cases and with clear and transparent criteria. I would like you to speak more specifically about section 198. Do you have any suggestions for improving the wording?
Mr. Zinger: Thank you for the question. We’ve been talking about this for over 30 years. I think that a recourse would be appropriate when there are major human rights violations.
I can tell you that I’m aware of at least two lower-court rulings where a judge used section 24 of the Charter to do exactly that. After a major human rights violation, an individual’s sentence was reduced. That is legally possible, but exceedingly rare. I don’t think there are many lawyers willing to take that approach.
If there were an act with something more structured, it would make more sense. Obviously, the context would need to be defined somewhat.
I think this is something the courts could do, and they have tools like section 24 of the Charter to ensure an appropriate remedy based on the seriousness of the violation.
Senator Oudar: Do you agree with the criteria set out in section 198? Do I understand from your answer that you feel they should be defined more clearly?
Mr. Zinger: It might be better to hear testimony from a criminal law expert. My take is that the option to prevent human rights violations where possible, to identify them and to remedy them so that they don’t reoccur would be good for Canada’s correctional system. We need to learn the hard lessons when this kind of thing happens.
[English]
Senator K. Wells: Thank you for being with us. Thank you for the work that you do. I understand you may be retiring in the upcoming year, so we wish you well in a new endeavour.
My question is centred on some of the previous work I understand that your office has done looking at the experiences of trans and gender-diverse incarcerated persons. I’m wondering broadly if you could speak to that experience of their treatment and in particular with the content of this bill and Structured Intervention Units. We may not be able to get into all of that, but I welcome any information you may provide in written form to the committee. But if we have time, I would request a few comments.
Mr. Zinger: We are aware that there are about 200 individuals who have some sort of flag where the Correctional Service of Canada must respond to something with respect to gender identity or gender expression. Of these individuals, about one third have been placed in women’s facilities and the remaining are in male facilities. Many of them continue to be vulnerable in those male facilities. It is an issue that has been quite challenging for the Correctional Service of Canada, but I have to say that it’s also quite challenging for Canadians as a whole and for acceptance even in Canadian society. The fact that this is in a penitentiary system makes it so much harder.
We have documented, in our systemic investigation on sexual violence and coercion in penitentiaries, that a lot of members of these groups are being targeted specifically and are quite vulnerable and disproportionately involved in sexual violence and coercion. That work was done almost five years ago, and the service has not taken any significant steps to try to address the issue. We have yet to have — which is something that we have raised all the way to the Minister of Public Safety — the need for an anonymous survey to try to get more information on the prevalence of sexual violence and coercion that has been mismanaged by both the service and Public Safety Canada, and that has yet to be done.
This is the gold standard even for our friends to the south. The Americans have a much more rigorous regime with their Prison Rape Elimination Act. Canada is lagging far, far behind.
Senator K. Wells: Thank you.
The Chair: If you want to augment the answer, it could be in writing, sir. Thank you very much.
Senator Pate: Thank you to both of you for your lifetimes of work in this area. While I regret you are taking retirement, it is certainly well deserved, Dr. Zinger.
I want to come back to a couple of things that both of you said, and I am going to put out all the questions and if we are out of time, perhaps we can get the answers in writing.
Professor Parkes, on Senator Oudar’s question about the remedy, I wonder if you could address that in writing as well because I think your experience and research on accountability and the work you have been doing on this would be extremely helpful.
I want to focus on sections 81 and 84. As you both, I think, will be aware, when the legislation was promulgated in the early 1990s, it already allowed for the scope of agreements to include non-Indigenous prisoners. I am very appreciative of the work your office has done, both when you were in a different position doing Spirit Matters and the update. One of the challenges that I have seen as I have been travelling across the country, as I think you are aware, meeting with First Nations, meeting with Black communities and meeting with trans communities, is the narrowing of the scope of those provisions happens through corrections. The legislation did not narrow the scope. The narrowing and the choice to fund in particular ways was also linked to risk assessment. You will remember when Buffalo Sage Wellness House opened, there were no Indigenous women who were classified as low enough security to even be able to go there, so they used subsection 81(2) and put a bunch of non‑Indigenous women there.
You also know that when they wanted to close the prison for women, the women fought back and went to court. Because the ones that were still in prisons for women were classified as maximum security and corrections wanted to move them, they reclassified them all as medium security or transferred them to other parts of the region. For a period of 18 to 24 months in this country, we had no women classified as maximum security in the region of Ontario.
Now what I’m hearing from Indigenous organizations currently providing section 81 and section 84 resources is they are being told that this bill would actually interfere with their funding. To me, it’s ludicrous. It reminds me of the entire approach with Indigenous Peoples and with people who are marginalized, to say that if we provide the services that legislatively we are supposed to provide to everybody, it will take away from those who have least.
I am reminded that 6% of the budget of corrections goes to community corrections. If we are being generous, maybe we could say as high as 11% if we include other measures.
It strikes me that this is an attempt to try to undermine the very purpose of the legislation, which is to assist people be in the community. You have said many times in repeated reports, as has your predecessor, that we need to be focusing on putting people in the community.
I wonder if both of you could, if there is something briefly you can say about that. Do you agree that part of this is driven by a decision of corrections to limit the access of Indigenous Peoples but also all other individuals, as you have said? Just this morning, I was meeting with the DisAbled Women’s Network of Canada, who are working on the issue of those people with cognitive disabilities who are not getting out of prison.
It strikes me that these are policy decisions taken by corrections that then impact where they allocate resources, and that we should not buy into that analysis that they are bringing and should actually be pushing on the minister to exert his responsibility to provide access as the Corrections and Conditional Release Act currently requires. Would you agree with that?
Mr. Zinger: For me, it is clear that sections 81 and 84 were put forward as an attempt to deal with the gross overrepresentation of Indigenous People and to find alternatives to a system that is not responsive to their needs, which is the traditional penitentiary environment. My only concern is that it is a provision that hasn’t been fully implemented and embraced.
Senator Pate: I agree.
Mr. Zinger: We have seen in our first report, Spirit Matters, in the early 2000s, corrections basically stopped investing in partnerships with Indigenous communities and organizations and reallocated the money to fund penitentiary-based initiatives, primarily Pathways.
So my only concern here is that it is a provision that has not been implemented properly. I would love to have that implemented properly and meet the legislative intent of 1992 before we even think about other groups. You may agree or disagree.
At a minimum, what I would suggest this committee might want to do is invite a few of the executive directors of section 81 and ask them what they think. I think they would be in a much better position than I am to answer that question.
Senator Pate: Thank you for that. I think we also need to hear from the ones who have applied who haven’t got the resources, because I’m familiar with a number of them.
Professor Parkes?
Ms. Parkes: I was going to say that in another capacity, I am vice-chair of the board of the West Coast Prison Justice Society, which has written a report called Decarceration through Self‑Determination that has documented — and I can share that with the committee — the ways in which section 81, in particular, has been vastly underutilized, and that many Indigenous organizations have tried to have facilities under that and have been denied and not supported in their applications, but that is a funding issue. That is a policy issue, as Senator Pate says.
And, with respect, this kind of links back to the question around trans people that was asked a minute ago. One of the ways that this amendment to the law could be utilized would be to have trans people supported in the community in ways that would be appropriate, that would address a number of the issues that we have been hearing of and are well documented regarding the coercion, harms, discrimination and violence experienced by this population.
The fact that it has not been utilized properly is an issue that needs to be addressed on its own terms. Within the CSC mandate is community corrections already, and this is one of the mechanisms that is supposed to be giving that effect, and we always see the resources going into the institutional side and not into the community corrections side. This would be one way of making that mandate clearer.
That’s not to say that any funding should be taken away from Indigenous communities. That would be a complete perversion of the legislation in the first place.
Senator Clement: Thank you to both witnesses for your careers. I think you have answered by speaking to Senator Prosper and Senator Pate’s questions, but I want to be on the record on behalf of Black Canadians.
So we know that Black Canadians, and Black men in particular, are overrepresented. Dr. Zinger, you said in your statement that they are also grossly overrepresented in SIU situations.
I’m paying attention to the Canadian Association of Black Lawyers, and they are paying attention to case law. I’ll quote from one case:
(i)f 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.
So there is increasing awareness that for Black folks, trans folks, Indigenous folks, their experiences are different.
We heard from CSC yesterday that they have a Black Offender Strategy program. They have $7.9 million invested over two years. I don’t know if you could comment on this and whether this is enough. Is this just a drop in the bucket? They’ve just started, so you may not have any comment, but I would appreciate it if you did.
Professor Parkes, I heard you say that our CSC is one of the most resourced CSCs in the world. Could you comment on that?
You also commented that the harm is documented right as of 48 hours in solitary. Do you have disaggregated race-based data to show what it might be like for Black people in those situations, as of 48 hours?
Ms. Parkes: Did you want me to answer these now? Is there time?
The Chair: Go ahead.
Ms. Parkes: With respect to the latter part of your question around the 48-hour period, this is the evidence of experts who have been studying isolation in prison environments over decades: Dr. Craig Haney and Dr. Stuart Grassian, who have testified in the cases here in British Columbia and Ontario around solitary confinement, as well as in other cases. So they have documented those harms as of the 48-hour mark.
There were findings of fact in those cases as well about the disproportionate impact and harms of solitary confinement on Black individuals and Indigenous individuals. So I can make sure to respond to this more fully in writing, but there is information on that.
As for the Black Justice Strategy, it is maybe too early to see some of the potential results of that. But what we know is that the resources don’t seem to be allocated — at least what I’ve seen so far, though I hope this can change — to release: to actually addressing the well-documented evidence of Indigenous and Black people being less likely to get parole when they’re eligible, and allocating the resources to that preparation for release and facilitation of parole in the community and appropriate resources there. It seems to be still focused a lot on the institution and not so much on the release. This is something that I think needs to be implemented.
Senator Clement: Thank you so much.
Mr. Zinger: Back in 2013, we did a systemic investigation on Canadians of African descent, the first of its kind. We interviewed lots of Black persons who were incarcerated, lots of young Black persons. We made a slew of recommendations.
At the time, Correctional Service Canada, I believe, was tone‑deaf and did not respond appropriately to our concerns. A few years later, I was interviewed by the UN special rapporteur, and we basically laid out the work we had done. Interestingly, the UN special rapporteur cut-and-pasted a lot of our recommendations, and those were actually tabled before the UN General Assembly, and again, little was responded to positively by Correctional Service Canada.
So we did a 10-year follow-up, which pushes us to 2023, and we found similar concerns. It was a bit of a challenge to do because I think there has been a lot more awareness about the situation, so that’s a positive, but in terms of action, it was very limited.
The only time that we saw some action with respect to Correctional Service Canada was because the Trudeau government launched an antiracism campaign and demanded that every single department contribute to that campaign, so we actually saw some funding being allocated and a bit more effort on the part of the service, something that we could not have generated a decade before.
I’m going to speak in general terms about strategies, because for 20 years I have been with the Office of the Correctional Investigator, and I saw five different strategies with respect to Indigenous Peoples.
Despite all those strategies, the bottom line is, for the most part, when you are looking at correctional indicators, those haven’t changed in the past 20 years when it comes to Indigenous People. Indigenous People, just like Black people, are overrepresented in maximum security. They tend to be subject to more use of force, placed in SIUs more than non‑Indigenous or non-Black individuals, attempt suicide or self‑harm and spend longer periods of time incarcerated than others. For Indigenous People, close to 80% are not released until two thirds of their sentence at statutory release. They are more likely to recidivate and have their parole revoked or suspended.
All those correctional outcomes have remained fairly static through all these different strategies and all these investments. That’s part of the crux of the problem, that we continue to believe that the latest strategies will get us out of the hole and that we will see changes in trends. I am becoming more skeptical over the years that this will be the result.
Senator Clement: That is devastating testimony, sir.
Mr. Zinger: I’m terribly sorry.
I see the Black community thinking of having something like Gladue specific to Black people would make a big difference. Well, Gladue has not helped Indigenous People. Maybe, it has mitigated things somewhat, but when I started my career at the Office of the Correctional Investigator 20 years ago, the rate of Indigenous People incarcerated at the federal level was 15%. It is now 33%, and up to 50% of women incarcerated are Indigenous. Gladue was designed to reduce and address overrepresentation, so it is no panacea. If people are thinking that maybe taking a Gladue-type of approach for Black Canadians is a way to ensure more equality and fairness, I’m not quite sure that will tip the scale significantly.
The Chair: Thank you.
Senator Dhillon: I’m happy to receive my answers in written form. As a former law enforcement member, I agree with your comment, sir, when it comes to these institutions having a severe allergic reaction to oversight. Thank you for being here today. I appreciate your work.
I want to pick up on what Senator Saint-Germain was sharing earlier: that there is going to be pressure on the judiciary, hospitals, community organizations and others. We had representation from CSC yesterday. Two assistant commissioners attended. Let me preface this by saying what I’m about to share is not an excuse to not carry on with the work we are doing to hold us accountable and our institutions accountable to Charter and the rights of Canadians. That supersedes all things. However, there are some barriers and challenges here that we have to overcome. One of the things shared yesterday was that when the oversight is brought in on a past-48-hour stay, it is going to create undue burden on CSC with respect to some of the assessments they carry out in relation to risk, safety and other things. I’m curious if you, Mr. Zinger and Professor Parkes, have turned your mind to that. This is where law meets operations at times and what the translation of what we are talking about in the principle of it and acting it out in the real world actually means.
I would welcome any kind of advice, information and insight around that particular concern that CSC shared with us yesterday. Thank you.
The Chair: You are asking for that in writing, or do you want them to respond now?
Senator Dhillon: I’m mindful of the time, chair.
The Chair: We can have concise answers from both witnesses, but they will probably have to be augmented in writing. However, it’s an important question, so we do want to know your thoughts.
Mr. Zinger: I suspect that provincial courts may raise an eyebrow at having to deal with this so quickly. Fundamentally, I believe this is a decision that involves the infringements on residual rights of freedom that is of grave importance. Whether 48 hours is too short of a time, I don’t know. What I can tell you is that every time you put a deadline on the service in terms of something that is quite onerous, they tend to solve problems quickly. Whether you put it at 48 hours or 15 days, right before they have to do all this work, they will find a solution much more rapidly. That’s my take on it.
Ms. Parkes: I can provide more in writing, but that’s the fundamental point. When we have seen examples of pressure from the judiciary being placed on corrections, on law enforcement and on these kinds of institutions, there are changes. It is actual accountability that causes things to happen more quickly. One of the long-standing problems is the fact that when left to a legal regime that provides layers and layers of internal reviews up and down the chain of command within CSC, which is what we currently have, we have a situation where people are languishing in unlawful and torturous conditions of confinement. I’m happy to address that more specifically in written submissions, but it is possible and we have seen that in other instances.
The Chair: Thank you. On behalf of my colleagues, I want to thank our two witnesses on this panel. Thank you for your fulsome answers. Obviously, the senators are very interested in what you had to say. Some of the testimony here has been quite compelling and helpful. Thank you for your contribution in assisting the committee in its work on the study of Bill S-205.
(The committee adjourned.)