THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 26, 2025
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:16 p.m. [ET] to study Bill S-205, An Act to amend the Corrections and Conditional Release Act; and to examine and report on the report on the Statutes Repeal Act for the year 2025 (consideration of a draft report).
Senator Denise Batters (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon, honourable senators. I declare open this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. I am Denise Batters, senator for Saskatchewan, still the home of the Grey Cup Champions, the Saskatchewan Roughriders and deputy chair of this committee. Today I have the chance to chair it because our chair is unavoidably away from this meeting. I invite my colleagues to introduce themselves starting on my left.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
[English]
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Prosper: Paul Prosper from Nova Scotia, Mi’kma’ki territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Simons: Paula Simons, Alberta, also Treaty 6 territory.
Senator Pate: Welcome to all the witnesses. My name is Kim Pate, and I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinabe Aki.
[Translation]
Senator Clement: Good morning. I am Bernadette Clement from Cornwall, Ontario, traditional Mohawk territory.
Senator Saint-Germain: Raymonde Saint-Germain from Quebec.
[English]
Senator Dhillon: Baltej Dhillon, British Columbia.
The Deputy Chair: Thank you very much. We are meeting to continue our study of Bill S-205, An Act to amend the Corrections and Conditional Release Act.
For our first panel, we are pleased to welcome Howard Sapers, he is online, Executive Director, Canadian Civil Liberties Association. And we have in person today Michael Spratt, Criminal Defence Lawyer; Margo Watt, Professor and Licensed Clinical Psychologist; and Sheila Wildeman, Professor, Schulich School of Law, Dalhousie University. Welcome and thank you for joining us.
We will begin with your opening remarks before we move to questions from members. We’ll hear first from Howard Sapers, the floor is yours for five minutes.
Howard Sapers, Executive Director, Canadian Civil Liberties Association: Thank you, chair, and good afternoon, honourable senators. Thank you for the opportunity to appear today in support of your committee’s study of Bill S-205, An Act to amend the Corrections and Conditional Release Act.
Though I am the Executive Director of the Canadian Civil Liberties Association, today I will be relying on the work I did between 2021 and 2024 as the Chair of the Structured Intervention Units Implementation Advisory Panel.
When SIUs were created in 2019, they were meant to replace administrative segregation, and the goal was that no prisoner would spend more than 15 days in conditions amounting to solitary confinement, conditions the courts had found unconstitutional. Structured Intervention Units were supposed to provide the opportunity for at least four hours out of the cell each day, and at least two of those hours would include meaningful human interaction. These requirements were not optional. They were statutory minimums.
Put plainly, the panel’s conclusion was this: Canada had not eliminated isolating conditions that amount to solitary confinement. Despite the intent of Parliament, despite the language of Bill C-83 that created the SIUs, and despite repeated assurances from the Correctional Service of Canada, or CSC, solitary confinement-like conditions continue in federal penitentiaries across this country.
The panel reviewed data provided directly by CSC. It showed that many prisoners do not receive anything close to the legislated targets. In fact, we found that prisoners actually left their cells only about one third of the time, even though CSC reports that time out of the cell had been offered almost 95% of the time. Offers are meaningless unless they translate into real opportunity for movement and human contact.
The panel examined thousands of person days in SIUs, and when we looked at the stays of 16 days or more, the very stays that concerned the courts the most, we found that over half of those individuals did not receive their four hours out of the cell on at least three quarters of the days that they were in those cells. Nearly half did not receive their two hours of meaningful human interaction. These are precisely the harms that SIUs were created to prevent.
The problem, however, goes beyond the SIUs themselves. We repeatedly observed, and CSC data confirm, that solitary-like conditions exist outside of SIUs in places that receive no external oversight. Some institutions use special ranges or modified routines that mirror isolation but do not trigger legal protection. On multiple site visits, we encountered prisoners who were physically housed in SIUs, even though they didn’t appear on the official SIU count.
Oversight mechanisms also suffer from serious weakness. Independent external decision makers, whose role is to ensure that prisoners are removed from SIUs when continued isolation is not justified, can issue binding orders, but in many cases, CSC does not act on these orders. Our analysis found that more than one third of the prisoners ordered released by the Independent External Decision-Makers, or IEDMs, remained in a SIU for over 60 days after their case was referred. This undermines the legitimacy of the entire system.
We cannot ignore the disproportionate impact of SIUs on Indigenous and Black prisoners who are significantly over-represented in SIUs compared to their presence in the general population. Prisoners with mental health needs, especially those whose conditions are deteriorating, experienced the longest and most harmful stays in SIUs.
After nearly five years of continuous monitoring, I can say with confidence that the challenges the panel identified are not temporary, nor are they the result of isolated failure. They reflect deep structural and cultural issues within the correctional service. The SIU legislation enabled change but it did not require it, and CSC’s response to panel recommendations often marked “completed” without demonstrating real results clearly illustrate this gap.
Parliament required a comprehensive review of Bill C-83 beginning in 2023. The review has not yet taken place. I urge the Senate to work to ensure that it now proceeds and that it focuses on outcomes, enforceable standards and meaningful external oversight of all forms of isolating confinement, wherever they occur, not just in SIUs.
Canada did not set out to create a new form of solitary confinement, but that is, in effect, what SIUs have become. Without decisive legislative and operational reform, the Charter of Rights and Freedoms violations identified by the courts will persist. Bill S-205 will help ensure that this won’t continue to be the case.
Thank you. I welcome your questions.
The Deputy Chair: Thank you.
Michael Spratt, Criminal Defence Lawyer, AGP LLP, as an individual: Good afternoon. I’ve spent the better part of two decades in courtrooms, boardrooms, hallways, jail visiting rooms, and much too often on the phone trying to get answers about what is happening to the people we send into custody.
I’m grateful to be here. And I’ll be honest, this bill gives me something rare in this area of the law, some hope.
You have all seen the Correctional Investigator’s reports. Year after year, they outline the same grim realities: Overuse of isolation, discriminatory treatment, failures in mental health care, sexual violence and bureaucratic opacity. These conditions should never be normalized. We send people to jail as punishment, not for punishment.
I also hear these stories directly from my clients and their families. And what’s worse, despite how shocking some of these situations are, there is often nothing practical I can do to help.
The internal complaint processes are glacial. The Correctional Investigator can shine a light but cannot offer timely remedies. Civil law suits are expensive and out of reach for most people behind bars.
Judges sentence people to jail assuming the law will be followed. They are regularly stunned when they hear stories of what happens behind bars. Bill S-205 recognizes this gap. It provides something our system has been missing for decades: a path back to the sentencing judge, the one impartial actor who already knows the case, the offender and understands basic constitutional principles.
Here is an example of how the current system is unfair and produces a two-tier justice system. Imagine two people who commit the same offence and they are sentenced to the same penitentiary-length sentence. Person A pleads guilty early. They’re sentenced quickly and they enter the federal system. While inside, they face unlawful isolation or other mistreatment. Because it happens after sentencing, the judge has no ability to modify the sentence to reflect that harm or take any corrective action.
Person B takes longer to resolve their case. They are kept in provincial remand where they experience the exact same abuse, but because that mistreatment occurs before sentence is imposed, the judge can account for it using ordinary sentencing tools and reduce the sentence accordingly. Two people, same crime, same circumstances and unlawful treatment, but one gets a remedy and the other is out of luck. It is illogical, unfair and completely unavoidable.
Bill S-205 fixes this by allowing the judge to reduce a sentence where there has been unfairness in the administration of that sentence. This is sound criminal law. Proportionality should apply at every stage of sentencing even after the sentence is imposed.
I know this might be a bit uncommon in political work, but I do have some constructive suggestions.
Number one, the bill should make it clear that this section 1981 applies even with statutory mandatory minimums. Parliament uses mandatory minimums, sometimes unwisely — mostly always unwisely — but they do exist. That’s a reality. To avoid litigation and confusion, I would recommend that Bill S-205 make it explicit that remedies are available regardless of any statutory minimum sentence. When the state violates someone’s rights in the administration of a sentence, there should be a remedy.
Number two, there is a disclosure problem. We can’t help if we can’t see. Let me be blunt, the federal corrections system is one of the opaque institutions in Canada. Clients are moved far from home, phone access is inconsistent, records are hidden behind internal processes, and the very people who control the documents are often the ones who are alleged to have committed the misconduct. For lawyers navigating this system, it’s like trying to solve a murder mystery where the only witness is also the suspect and controls all the evidence.
Bill S-205 should include clear, automatic disclosure mechanisms so that lawyers know immediately when something happens. There should be an obligation of CSC to disclose all those reports in a timely way, and there should be an explicit power for the judge to order production of all of those records as part of the review mechanism.
There is always a problem with accessibility to counsel. Many people who need this remedy won’t be able to afford a lawyer. I recommend Bill S-205 should include a provision modelled on the Youth Criminal Justice Act or the Criminal Code’s section 46.3 allowing courts to appoint counsel when necessary to help move the process along and ensure that there is fairness.
And in 2025 it should go without saying that the applicant should be able to appear by video.
Often people are transferred across the country away from their support networks and far away from the judge who imposed the sentence. This is part of the problem. Remote attendance makes hearings faster, cheaper, more humane and it avoids transfers that can disrupt programming, counselling and the rehabilitation that we would want to see.
As a final thought, this bill isn’t radical, it’s responsible, it’s humane, and frankly, it’s overdue. When the state mistreats people in custody, there has to be a timely and meaningful remedy that’s real. It has to be accessible. Courts are already trusted to impose sentences. This bill finally let’s them ensure those sentences are administered lawfully as intended.
I would welcome your questions. I was trying my best to stay under five minutes to stay on your good side.
The Deputy Chair: You were 40 seconds over.
Margo Watt, Professor and Licensed Clinical Psychologist, as an individual: Thank you, chair. I’m a clinical psychologist and Professor Emeritus at St. Francis Xavier University in Nova Scotia. A significant part of my career has been delivering mental health services to federally incarcerated individuals, both men and women, but largely at the Nova Institution for Women in Truro, Nova Scotia.
Indeed, in the aftermath of Ashley Smith’s death in custody, I served as the Chief of Mental Health and directed the mental health team at Nova Institution. I speak today as a clinical psychologist. All of this is to say that I do appreciate the challenges of delivering mental health services in prison. I fully appreciate the challenges because prisons are not therapeutic environments. They weren’t designed to be therapeutic environments. They weren’t designed philosophically, physically, operationally, so it’s very hard to deliver services.
Nonetheless, 75% of the people who arrive at their door have mental health challenges and mental health problems, and a substantial proportion of that 75% — somewhere in the vicinity of 15% to 20% — have serious mental illnesses, so mental illnesses that significantly impair their functioning.
Co-morbid disorders or concurrent disorders are the norm, they’re not the exception, all of which make for very complex and complicated assessments, complicated diagnoses and complicated treatments.
Of course they arrive at the door with mental health problems. The prison environment itself, with its disconnection from family, whether it’s isolation, segregation, restraint, violence, with the noise alone is very counter therapeutic. It can both exacerbate the pre-existing conditions and it can contribute to new conditions, especially for those who arrive with a history of trauma. We know that at least 50% of the prison population has a history of trauma, adverse childhood experiences, sexual abuse, or physical abuse.
The lack of adequate and effective mental health services inevitably negatively impacts marginalized populations disproportionately. The problem that we have by not delivering good mental health services impacts those who are at increased risk even more so.
Year over year, of course, we see reports from the Office of the Correctional Investigator, from the Structured Intervention Units Implementation Advisory Panel on which I served with Howard Sapers, the Mental Health Commission of Canada, every report attests to the shortcomings and the failings of mental health services in our prisons.
There are many reasons. I’ve indicated some of them, but one of the reasons that I would like to speak today is that we lack quality mental health professionals. This is a mental health problem. If 75% of the Senate had mental health problems — who is to say they don’t. Well, in any situation, this is a health problem as much as it’s a criminal justice problem.
One of the shortcomings that clearly has been evident as long as I’ve been associated with the Correctional Service is the lack of qualified mental health professionals. When I say qualified mental health professionals, I mean people who have specialized training, experience and expertise in mental health, people who are licensed to conduct assessments, direct treatment, or formally render diagnoses.
A health care professional is not de facto a mental health professional. You need specialized care, and yet CSC has been hard-pressed to be able to recruit and retain qualified mental health professionals. There are lots of reasons for that, some of which are similar to why it’s not a therapeutic environment.
As we speak, in fact, it has been reported to me that there is a vacancy of 100 psychology positions in the Correctional Service.
My hope for Tona’s Law is that we harken to the words that we need to get people out of prison; we need to get people appropriate mental health services, preferably services accessed in the community. Now, that requires, of course, that the community has to rise to the occasion. But it is my hope that Tona’s Law — and in Tona’s words — that we will endeavour. If we can’t recruit, the situation is probably not going to change in the Correctional Service in terms of recruitment of professionals. Let’s get them access to professionals when and where we can. That will require some effort on the part of the community.
Yes, done. The challenge is on the community.
The Deputy Chair: Absolutely. Thank you very much for your important remarks there.
Sheila Wildeman, Professor, Schulich School of Law, Dalhousie University: Thank you so much. I’m honoured to speak to you today in support of Tona’s Law. I’m a law professor and director of the Law Institute at Dalhousie University on the unceded territory of the Mi’kmaq territory.
My work spans administrative law, disability and prison law, including habeas corpus and legal limits to psychiatric detention. I also co-chair East Coast Prison Justice Society.
I am proud to call Tona Mills a friend. Senator Pate introduced us in 2018, 20 years after I first encountered Tona’s story while researching unconstitutional barriers to mental health care for federally sentenced women. Back in 1998, I learned how CSC’s cottage-style redesign of prisons for women had backfired: women deemed high-risk high needs including Tona, were pepper-sprayed, stripped, restrained and held in prolonged solitary confinement for months in the men’s facility at Springhill.
For Tona, a Sixties Scoop survivor of Coast Salish lineage whose carceral pathway involved a series of progressively urgent cries for help, this was but one chapter in 10 years of gross deprivation and violation in Canada’s prisons. Her story reflects systemic discrimination against Indigenous women who constitute, as you know, half of federally sentenced women and carry, as Ms. Watt said, compounded colonial trauma worsened by incarceration, including disproportionate force and securitization.
In 1998, I argued in an unpublished student paper — and there is a story there — that CSC was creating and escalating so-called high-risk, high-need women’s trauma and mental health problems in ways that violated their security of the person and equality. Appellate court judgments now confirm that when solitary confinement exacerbates serious mental health problems, this is a human rights violation. That insight also informs the Office of the Correctional Investigator’s recent pronouncement that CSC is structurally ill-equipped to meet the needs of persons with mental health problems, intellectual disabilities or both, instead translating these into risk and responding with violent securitization.
The tragic deaths of Ashley Smith, Matthew Hines and Stéphane Bissonnette, and the 2000-plus days of solitary confinement of Dene man Joey Toutsaint, are variations on this theme.
Three systemic drivers explain these institutional dynamics: First, the Governance problem, CSC’s paramilitary model intransigently favours security over therapeutic ends and this infiltrates budgeting, hiring, training and more. Second, the problem of institutional culture. Correctional officers are acculturated to contain perceived deviation with force. Third, the problem of dual loyalties, whereby CSC health staff are conscripted into risk management and securitization contrary to their professional ethics.
Into this mix comes Bill S-205, with four critical reforms to short-circuit the risk securitization of health needs: These include two oversight mechanisms and two alternative pathways.
First, the bill requires judicial oversight of SIU placement within 48 hours to validate security or other justifications and ensure access to meaningful human contact. This interrupts the Byzantine SIU-internal-review structure in which Mr. Sapers has spoken to and in which Indigenous, racialized and disabled persons are disproportionately ensnared.
Lest you think this review is redundant given the constitutionalized right to habeas corpus, I note prisoners face significant barriers accessing habeas corpus whether due to mental health problems, fear of reprisals, or risks that as self-reps they will not only fail but be hit with costs and vexatious litigant status.
The second oversight piece is the bill codifying the Arbour remedy, whereby judges may reduce a sentence where illegality makes imprisonment harsher than intended. As Mr. Spratt has noted, judges already adjust sentences prospectively for abusive remand conditions; this permits a corresponding retrospective adjustment vindicating the rule of law behind prison walls.
Last are two further pressure release valves. First, if a health professional identifies that a person has disabling mental health issues on grounds that the Corrections and Conditional Release Act describes, the person must be transferred to a provincial mental health facility; the idea being, a place where care, not securitization, is prioritized. As you know, Dr. Zinger has made a complementary recommendation, adding that CSC should redirect the $1.3 billion earmarked to replace the Shepody’s Healing Centre to fund provincially partnered, acute mental health care spaces.
Second, the bill says the commissioner must seek to identify Indigenous organizations and others to effect agreements on community-based administration of sentences and supervision of parole. This duty aligns with UNDRIP and with British Columbia’s Prisoners’ Legal Services’ recommendation that CSC redirects one third of its $3 billion budget toward Indigenous-led community supports.
Moreover, in expanding sections 81 and 84 agreements to organizations representing other disproportionately securitized groups such as Black, trans and disabled persons, the bill recognizes the need to repair multiple, ongoing discriminatory harms.
To conclude, I return to Tona Mills. Tona Mills spent many years in hospital recovering from 10 years of torture in prison. A few years back, she moved into a warm and welcoming supported-living apartment. Then tragedy struck again: as you have heard, terminal cancer.
Tona has gifted her staff with personalized tattoos to remember her by, expressive of her creative, wry spirit and loving personality. This bill is your gift from Tona. With it, we can promote timely oversight of solitary confinement and relieve the prison system of its worst excesses; one, by redirecting people with serious mental health conditions to hospitals and community supports; and two, by incentivizing community alternatives for Indigenous and other disproportionately securitized, violated and debilitated individuals and groups. I urge you to pass this bill, and I welcome your questions. I apologize if I went over my time. Thank you.
The Deputy Chair: Thank you. We will now have questions from senators.
I will ask honourable senators to confine their questions, and answers to keep it succinct so I can give a five-minute exchange to each of you.
[Translation]
Senator Miville-Dechêne: I would like to return to section 11, which allows for a reduction in sentence in certain circumstances. Mr. Spratt, from the defence’s point of view, is this new recourse allowing for a reduction in sentence on grounds of injustice, oppression or abuse really accessible to prisoners, or is it more theoretical, given the limited access to legal aid and advice? You mentioned it briefly, but is it something that merely embellishes the bill, or will it really change things?
[English]
Mr. Spratt: I think that you are right to be concerned about resources. Resources are scarce in the judicial system.
First, the resource of court time is something that needs to be taken into account. I think that you don’t want to water down what could be a good bill that can drastically impact how sentences are carried out and the application of Charter principles just because there is a hypothetical concern about resources.
There definitely is going to be some tension there. In the criminal justice system, we talk about deterrence a lot. We talk about ways to prevent problems before they happen. Judicial oversight and monitoring and the threat of a sentence reduction might actually save judicial resources in the long run by cutting off and examining these problems and finding a solution before they consume even more time and provide obviously a disincentive for the organizations knowing that they will have to account for their actions in a public forum like the courthouse.
[Translation]
Senator Miville-Dechêne: I now have a question for Ms. Watt.
[English]
I was interested in what you concluded with. I wonder, where is the solution? You say there is no psychiatrist or experts in mental health in the prisons, or very little, and you are now counting on the community to do it; however, there is also a real problem in the community with the absence or the very low number of psychiatrists.
Are we going to invent them? How can we also — I was reading a doctor who was saying, “Well, it is difficult for us to take on the prisoners and not care for our own prisoners, provincial or sick people.”
Where is the solution?
Ms. Watt: Where is the solution is a good question.
To begin with, we’re short mental health professionals everywhere. What we’re seeing in the prison is not changing. It doesn’t change, year over year, decade over decade. We do have professionals. They cannot attract some of the professionals they need, like psychologists. They cannot attract psychologists. Psychologists, psychiatrists can do the types of assessment and diagnosis I was talking about.
There are psychologists, psychiatrists in the community. Psychiatry has a mechanism for coming into the prison, maintaining their full practice in the community, but coming in on a structured basis. Some of that could be done better for psychologists so that provisions are made to make it easier for psychologists to come in to do specific things.
I do appreciate, however, that when I threw in the last statement about the community, that it is a big challenge. As a clinical psychologist, the history of this field is we have abandoned people. We have criminalized people. We de‑institutionalize. We were supposed to have resources in the community, and we ended up criminalizing people.
We do, as a community, have a responsibility to do better.
Perhaps I was being a little naive or perhaps facetious in saying we need to get more connections with the community, not unlike what Ms. Wildeman had mentioned about the money from Shepody Healing Centre going into provincial beds. That is putting money into the community, putting money into Pinel in Montreal, putting money into community-based resources where interventions cannot be subordinated to operations.
Senator Prosper: I want to begin by thanking you for coming here today and sharing your testimony. It would be nice to have great news, I would imagine, but the realities, as you outlined, have been quite prevalent for some time. I do want to recognize your resolve to help make a difference here.
To pick up on the point made earlier about communities, Ms. Wildeman, you mentioned community supports. You talked about the potential or possibility, maybe one third of the CSC budget going toward community-led Indigenous initiatives.
Ms. Watt, you also spoke about community.
Can you provide insight on what those community initiatives are? What are the approaches? Are there any that exist out there? If not, what would some of these Indigenous-led community initiatives look like?
Ms. Wildeman: I am glad you asked. As director of the Health Justice Institute, I was fortunate to team up with the chancellor’s chair in Aboriginal law and policy this spring, Professor Naiomi Metallic, and we co-hosted an event that we called Indigenous Community-led Disability Supports on Wabanaki lands. We hosted an all-day event where people came together and shared the work they are doing. Some people, it was extraordinary. They hadn’t really had the resources or time to lift up what they were doing and even share with one another, but it was profound. I will gladly share with the committee the report we produced out of that event later.
The Wabanaki Council on Disability was there. I think that Conrad Saulis has presented to this committee before. They spoke in part about quite profound conceptions of disability. They were taking down to the studs the idea of what disability is and what it means to support disability.
Beyond that, we had folks from a range of organizations and initiatives, some of which have been around a long time. You are well aware, I’m sure, of Mawita’mk. Rosie Sylliboy is the executive director, and they’ve been doing residential-based supports for folks with quite chronic mental health and other disabilities for a long time. Ms. Sylliboy talked about their work.
We also heard from the Diamond Bailey Healing Centre, which is an organization associated with a Friendship Centre. It’s an urban-based, shorter-term residential support stay. Often there are folks who have been criminalized, who are involved in either substance use or mental health treatments. There is a focus on back to the land, but I have to say, one of the things that those folks said was, “We don’t have land. We have this wonderful facility, but we don’t have access to land.” So the lack of resources.
There were many other examples: folks supporting youth, folks supporting youth in the education system from Eskasoni, a lot of sharing. But the common denominator was the lack of resources to sustain in a way that could be continued to be as creative and imaginative as the roots of these initiatives really were.
That is a “to be continued.” My takeaway from that was these are precisely the kinds of initiatives that deserve resourcing both through the framework of the sections 81 and 84 agreements. I think it sounds a little scary because it sounds like maybe dumping people who have not been well served — for some people, it is decades in the criminal justice system — and dumping them on communities. But that is not the way to approach it, in my mind. The way to approach it is to go back to the roots of the incredible expertise and knowledge that is already happening and ask folks in a meaningful way what can be done.
Thank you for that.
Senator Prosper: Thank you.
Ms. Watt: As I mentioned to you previously, Senator Prosper, the work that is being done around sections 81 and 84, if we accept that prisons are counter-therapeutic environments, then getting people back into communities, especially Indigenous people back to their communities, is a therapeutic approach that needs to be better explored and has been underutilized.
Senator Simons: My question is for Mr. Sapers, who once upon a time was my MLA in another life.
In your opening comments, you painted a very distressing picture of an unwillingness by Corrections to follow the black letter law and to follow up on direct orders. What confidence do you have that any change we might make with this piece of legislation would actually make the law something that would be followed?
Mr. Sapers: Senator, thank you for that question. You have nailed it.
There is a cultural problem with CSC. They are resistant to oversight, and they tend to circle the wagons and make things adversarial when they don’t need to be.
We’ve tried many different approaches in terms of oversight. The latest has been the creation of these IEDMs. It’s not working. Court supervision may change that, it may not, but at least it would be more transparent and public.
At some point, both the public and the governments they elect will have to take more assertive action to rein in Correctional Service Canada and ensure they are compliant with their legal responsibilities and their policy framework. More accountability is always better than less and more transparency is always better than less. I think Bill S-205 gives us some hope that both of those things will happen.
I will leave it there.
Senator Simons: Section 33(2) says:
A person’s confinement may not have a duration of more than 48 hours unless authorized by a Superior Court under subsection (3).
How definitive do you think that is? Would that actually be followed? If it were to be followed, do we need to consider an amendment so there could be subsequent review?
The way this is written, if the court says that after 48 hours it’s fine, there isn’t an end or another point at which the court checks in and says, “All right. That is enough days now.”
Mr. Sapers: Yes. I have thought about that. I don’t have a perfect answer.
I think what would happen in a practical sense is that Correctional Service Canada would try to avoid, to the extent possible, that kind of judicial oversight. I think they may be more proactive, and we may see fewer people go into those conditions of confinement.
On the flipside of that is a concern that CSC will continue to find new ways to isolate people who are sort of off the books. There has to be a combination of things like the Office of the Correctional Investigator, like IEDMs, and like parliamentary visits so that there are more eyes on CSC operations.
I do think it is time we tried some different approaches. I will add it is not just about oversight of existing policy. I think there are other structural reforms.
Bill S-205 talks about taking advantage of existing law so that people with health issues, including mental health issues, will be treated in health care environments primarily.
There should be a structural change that would direct people who are ill into health systems. Let the prison system run prisons, and let health authorities run health-providing systems and organizations.
This trend of moving away from corrections making health care is profound, and Correctional Service Canada is one of the last holdouts in that regard. It’s not just the oversight. It’s not just what Bill S-205 can bring, but there are some other structural changes needed as well.
If I can just reflect on the previous question about opportunities for Indigenous program services and transfer of authority, in 2013 I released a report called Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act that highlighted the problems and had some reasonable recommendations for improvement. Ten years later, the office, under Dr. Zinger, released a report called Ten Years Since Spirit Matters highlighting exactly the same problems and being forced to repeat some of the same recommendations.
We have to stop that cycle and get serious about holding CSC accountable. Court supervision and court oversight is a step.
Senator Simons: Thank you very much.
Senator Saint-Germain: Welcome to all of you, and a special welcome to Howard Sapers, with whom I have worked.
First, a little context. For over 10 years I was the Quebec Public Protector, and then I oversaw the 19 correctional centres of Quebec and also the hospital, including the mental health institutions. I would recognize many of the issues regarding the respect of residual rights of the detainees. I want to also highlight the fact that in mental health institutions, there are many flaws with respect to the rights of the people living or coping with mental health issues.
My first question is for you, Professor Watt, and I have concerns with the definition of “mental health” or “disabling mental health issues” used in Bill S-205, “refusing to interact with others,” “engaging in self-injurious behaviour,” “showing symptoms of a drug overdose,” “and showing signs of emotional distress or exhibiting behaviour that suggests they are in urgent need of mental health care.”
Do you believe that with such a broad definition we will contribute to having too broad of a proportion of detainees that will have to go to the courts or go to the hospital, especially the psychiatric hospital, and then that will be unmanageable with no additional guarantee that their rights will be respected during this — I would say — transition time and sometimes more than a transition time?
I would like to hear you on this.
Ms. Watt: Thank you for that question.
My response would be that this is why we need, throughout the system, people who are qualified to make decisions. What you’ve described is a broad spectrum of symptoms, and even in my delivery, we wrestle with words. Is it a mental disorder? Is it a serious mental illness? Is it a mental health challenge? Professionals have defined ways of looking at those. We have thresholds that we have to meet to render a diagnosis.
I guess what I would say is that having people available to CSC that can make judgments as to the risk for the individual, for clarifying diagnosis of the individual, for directing treatment for the individual, those pieces are so important and that could help clarify.
You can’t expect people to look at that conglomerate of symptoms that you just described and be able to make a clear determination as to what’s best. As you say, that would become unmanageable very quickly over time, unless we have a very clear definition.
That’s what qualified professionals are for. That’s their job. Giving them the autonomy and the wherewithal and access to those qualified professionals could be very helpful to CSC. Well, of course, it would be helpful to CSC.
If I can just add one thing: I love the question, because that is the situation within prisons. It’s complicated.
In the aftermath of Ashley Smith’s death in custody, there was a big infusion of money into CSC to identify people who would be at risk like Ashley Smith. There were comprehensive assessments done and careful clarification of diagnosis and direction of treatment in a way that didn’t exist before and only existed for a small window of time. That was possible. That was possible.
I think there are ways, but you’ve got to have the people in place to help with that.
Senator Saint-Germain: Thank you very much.
The Deputy Chair: I wanted to follow up on what Senator Saint-Germain was just asking, though. The definition that she read is actually what we’re dealing with in this act.
Given that very broad situation that you just said is very broad, does that cause you concern that it may be too broadly defined and thus could lead to some problems?
Ms. Watt: I think clarification of definition is very important, and I’m not sure where that definition came from, but I think it’s always important to have a clear definition.
When you’re dealing with complex mental health cases, it’s always going to be a bit of a challenge, but I think clarifying the definition could be important.
You said something else. The clarification of the definition, and what else did you just say?
The Deputy Chair: If it’s too broadly defined, and it actually comes from the Correctional and Conditional Release Act — section 37.11 — if that could create problems of having it too broadly defined, and, therefore, too many people would be covered by that?
Ms. Watt: Well, clarifying the definition would be important, and having people available to render those diagnoses or assessments at the time is equally important.
Again, one of the things, which I’ve mentioned to others about is the use of the term “medical professional” in the act. Again, “medical professional” is good and in most cases has mental health training, but I would say, “qualified mental health professional.”
A precise definition with precise qualifications can help clarify the situation.
The Deputy Chair: Thank you. I appreciate that.
I also wanted to briefly ask Mr. Spratt. Thanks very much for your opening remarks in which you were discussing some ways that, perhaps, this bill could be improved. One of those was dealing with the disclosure problem that you spoke about.
If you can tell us a little bit more about that, because I think you hit on something quite important here.
Mr. Spratt: The best analogy to use is without proper disclosure, all of this judicial oversight is like having a fire extinguisher behind unbreakable glass in case of fire. It’s nice to look at, but it’s pretty useless.
Everything is geared on timely disclosure, because a timely correction of these problems, especially when dealing with individuals who may be in mental health crisis because of the conditions that they suffer, is really important. Of course, a judge is going to have inherent jurisdiction to order disclosure, so it might be a bit redundant, but I like to get disclosure before we get before a judge. That’s bringing it back to efficient use of court’s time. That’s a good way. That’s why we have proactive disclosure.
A mechanism that would allow proactive disclosure when an application like this is filed, having that disclosure right to defence counsel, to a lawyer, would allow the most efficient use of court time, it would allow us to identify problems, and, importantly — looking at Mr. Sapers’ evidence — would allow us to identify if things are being withheld or if there is an intentional mislabeling being used to monkey around with definitional requirements and things like that.
The disclosure is a very important piece, and it’s essential. Everything flows from that.
[Translation]
Senator Oudar: First, thank you all four for being here and sharing your expertise with us. My first question is for Mr. Spratt and concerns the powers of the courts. The bill provides for a judicial authorization mechanism that involves the courts and would require them to assess institutional risks, security issues, mental health needs and even the daily behaviour of an inmate. These functions are usually the responsibility of the CSC, but do not fall under the purview of the courts or constitutional law. What would you say to those who argue that the bill risks giving the courts an operational role that exceeds their institutional powers and would require them to rule on matters for which they have neither the authority nor the expertise?
[English]
Mr. Spratt: I don’t think that resorting to the court for some of this oversight and for sentence management exceeds any constitutional authority, but I think granting the courts this power is in keeping with the courts’ constitutional powers and constitutional authority to sentence people and to have an expectation that their sentences will be executed and fulfilled in a lawful manner.
Courts actually do have quite a bit of experience dealing with mental health issues. It’s no surprise that many of the accused before a court suffer from mental health issues. It’s a driver of a lot of the offences that we see. Courts, for example, deal with dangerous offender hearings, declaring people criminally responsible, fitness hearings.
Now, you’re right, a judge isn’t necessarily a mental health professional, but through the disclosure of reports, we look at these institutional reports quite a bit. And courts also have the ability to hear evidence from experts.
So a court is a great place to have someone who is impartial and neutral and able to apply constitutional principles. It is their expertise to hear a wide range of opinion and evidence on an issue and make a decision in a pretty timely way. This is not necessarily very different from what we see in some of those hearings I talked about like dangerous offender hearings. We get boxes of Correctional records. We hear from forensic psychiatrists and psychologists. We hear from those medical professionals. And the court may not be a medical professional, but they are experts at distilling that evidence and applying the constitutional framework to it, which I think is what everyone wants — sentences to be carried out in a lawful way to achieve the best results for our communities.
[Translation]
Senator Oudar: My next question is for Mr. Sapers.
I would like to hear your thoughts on the role of community organizations, if you are willing to share your thoughts with us. These organizations play an important role in the reintegration of marginalized individuals, even though their actions are sometimes hampered by numerous legal and systemic barriers that limit their effectiveness, particularly among racialized, Indigenous, and low-income populations. Do you believe that legal or systemic barriers currently exist? What should the committee do? Would legislative changes be necessary to facilitate their role?
[English]
Mr. Sapers: I hope I have more than 30 seconds. The role of community in corrections goes back to the beginning of community corrections. You know, the first parole officers were actually people that worked for the Salvation Army. The issue has always been how do we have some porosity between correctional institutions in the community? The best way to do that is to have community organizations do in-reach work, go right into the institutions, work with the people who actually operate the system as well, help prepare people for release and help that transition into the community, provide support and run and offer programs and supports.
You have organizations that have been doing that for decades, the Elizabeth Fry Society, the John Howard Society, St. Leonard’s Society and 7th Step Canada. The problem is they are often treated as just vendors and not as partners. The degree to which they are welcomed to engage in their work inside institutions varies from institution to institution, even within institutions from time to time.
And I still get reports from legal aid lawyers not having access to their clients inside institutions, disclosure problems as Michael Spratt was talking about. I hear stories all the time about communications being denied, access to telephones, letters not making it out of the institution or correspondence not getting to prisoners.
The Deputy Chair: Thank you.
Mr. Sapers: Volunteer groups.
The Deputy Chair: We have to leave it there. We’re already at six minutes.
Senator K. Wells: Thank you to our witnesses. I deeply value your experience and expertise on the issues we’re talking about. We had some discussion on our committee hearings about the situation of trans- and gender-diverse individuals who are incarcerated and the fact that their circumstances of their incarceration means they have no choice but to go into SIUs.
We’re currently waiting for some follow-up data from Correctional Service Canada, but I’m wondering if any of the panellists have any additional insights in relation to the experiences of trans- and gender-diverse individuals in relation to what this bill proposes and your own experience.
Mr. Sapers: Well, certainly, we continue to catalogue the problems. CSC did take a couple of giant steps forward a few years ago and changed their policy around how gender was described and how people would be housed, but there is still a lot of work to do.
As you rightly point out, we find gender-diverse people finding their way into isolating conditions. It’s not just into SIUs, but other types of limited movement and association ranges.
We also see that they are often victimized while they are inside an institution. It is clearly not offered the degree of security and safety that they could be.
This bill will certainly offer, as I said before, better opportunities in terms of transparency and judicial oversight of people going into SIUs, and that would, of course, include the over-representation of gender-diverse people in SIUs, but again it’s a cultural issue. The Correctional Service of Canada, as I said, has made strides. I actually want to give them some recognition for that, but it’s not something they can take pride in that they have finished the job.
There are staffing, training and supervisory issues much more than there are legislative issues. You can legislate SIUs, but you can’t make the service operate them compliantly. I think it would be the same thing if we tried a legislative remedy specifically to create better circumstances for gender-diverse prisoners. We may get to that point, but I think we have to work on the culture first.
Ms. Wildeman: I had a quick one. As we’ve seen, the bill obliges the commissioner to identify community organizations that are able to enter into contracts to support people during the sentence as well as on parole, so receiving people into community. Given that there are a number of very committed organizations working with trans and non-binary folks who are criminalized, they would really leap at the chance to develop something that would be truly supportive as an alternative to isolating folks.
The last thing I would mention is that with the East Coast Prison Justice Society, we have worked with trans people making the transition from provincial to federal, and it has been extremely challenging. They are held at the federal reception centres, which is where folks’ risk classification getting imposed and held in solitary in those places. We found a real difficulty with our group and other community groups, including trans‑specific or non-binary folk-specific groups, getting access to the process of discussion of where the person is then going to be placed, where all these sorts of analyses of security and the rest are — and the policy that Mr. Sapers mentioned — are all coming together into the soup. So community is being shut out is my sense at that stage, and this bill says, “No, bring community in for these conversations.” Thank you.
Ms. Watt: A week ago Sunday, I accepted a call from a maximum-security federal inmate who is a gender-diverse person and who is in a relationship and is married to a trans man. There are a lot of challenges. I think Mr. Sapers and Ms. Wildeman both attest to that. Correctional Service Canada needs oversight. I like the idea of more community-based organizations providing support, because I think it’s another level of stress and pressure and fear and intimidation that can be part of the culture.
The Deputy Chair: Thank you. I appreciate that.
Senator Dhillon: Thank you, folks, for being here today and for your work that you continue to take on and advance. My first question, Mr. Spratt, maybe I’ll leave this to you to bring to the committee through a written format, but just to build on what you and Senator Batters and Senator Saint-Germain have mentioned. Disclosure, that piece I think you did speak to well and have a good understanding around it, but you also spoke about giving notice when certain events took place and what those triggers would be and where that notice would go and what would be the consequences of that notice and what that process would look like. If you wouldn’t mind just sending that to the committee, that would be helpful. You had suggested that those could be amendments that we could consider.
Mr. Spratt: Yes. Notice is also very important, because there is a self-fulfilling cycle here where the more isolated someone is — whether you call it solitary confinement, structured isolation unit or one of these makeshift workarounds — the harder it is for them to access the community, their counsel and contact the outside. The worse the situation is, often the less information we have.
Senator Dhillon: Right. If it pleases the committee, that would be helpful for us to have a list of those times where that notice would be useful to better respond to those issues.
My next question is to Professor Sapers and, Mr. Spratt, for yourself as well. One of the concerns that we’ve heard from folks at the CSC is that this will — well, a couple of things. One, there is not enough time — 48 hours is not enough time to get to the judiciary, get some sort of response, and also make an assessment on the threat level that the inmate or the detainee is being held for, and it’s in their best interest. We just don’t have time to do the assessment, go to court and all that good stuff. So, that piece.
The second part of that question I’ll leave to you folks to answer here is around the burden this will place on our judiciary. Do you see that the type of disclosure, the type of notice, what we’re asking for here on the 48-hour trigger, is going to increase the burden on our judiciary? Do you see or value the possibility of creating a judiciary that’s responsible for corrections and inmate issues separately? I know that’s completely out somewhere in a different land, but I thought I would ask the question given that if there is a pressure here, how do we then justify some of this added work?
Mr. Spratt: Yes, it’s obviously going to create some added work because we’re using judicial resources, but it is amazing what our courts can accomplish when it is made a priority. When we look at a situation here of oversight, of some very serious potential abuses and very serious harm that has lasting effects that will eventually, in almost all cases, make their way into the community, it is a good use of resources. Especially if you’re having the judge who was involved in the sentencing sort of manage it, it’s less of a burden because they come to that decision with some information. It’s amazing how quickly we can get things moving through court if it’s a priority. I would suggest that this — if you’re concerned about community safety, human rights and the proper and lawful application of a sentence, I think this would be a priority for all of those interests.
Mr. Sapers: Chair, if I can just answer the first part of the question which was about the CSC saying that there is not enough time, I would like to remind the committee that the law currently provides that CSC eliminate all other options before they transfer somebody into a SIU, which means they’ve already done all the assessments, the risk assessments, compatibility assessments, et cetera, before the placement.
The law also requires that CSC have a 24-hour and a 48-hour review now. That also is to see whether or not risks are being addressed and whether plans are being put in place, i.e., the structured part of a Structured Intervention Unit. So it’s a little disingenuous to say they wouldn’t have time to do an assessment when, after 48 hours, they’ve already had at least three different touch points where they’ve done assessments and looked into the case management of that individual.
Senator Pate: Thank you to all the witnesses. I want to pick up a bit there. Mr. Sapers just raised a question I was going to ask, but the law currently requires that assessment to be done. I have a couple of questions. I’ll ask them all, and if we don’t have time, if you don’t mind providing them in writing.
Professor Watt, one of the realities is that the provision that we’re talking about is actually — that definition is the triggering of the requirement for corrections to do a mental health assessment to determine whether someone can be in SIU. As I think you’re aware, Ashley Smith was not identified as having a mental health issue until after she was dead. It was during the inquest that those behaviours were assessed and some of this information was logged. I think you have been one or more of the psychologists and psychiatrists who have frequently called out SIAD advocates when your direction to remove someone from segregation or to provide treatment has not been adhered to. I don’t know if you can elaborate on that.
The last time you were here — and I think you touched on it, Mr. Spratt, as well — you talked about the fact that 48 hours is a reasonable time given that we have bail conditions that currently require far less time than that, and the numbers we’re looking at are, according to corrections, somewhere in the neighbourhood of a maximum of 1,800 based on who they are placing in SIUs now. A maximum of 1,800.
In terms of the resources from the community, Professor Wildeman, if you can elaborate on the fact that the recommendation, as I understand, it from the Correctional Investigator of Canada as well as from the West Coast Prison Justice Society is that resources that are currently being allocated to incarcerate people be transferred into the community and, in the case of Shepody, that resources being allocated to build a new centre actually be allocated. We heard from the Correctional Investigator that, in fact, if corrections went to each treatment centre location and offered to the external provincial health authority $50 million or $25 million, depending on how you break up the amount that would probably look very different from what’s currently being proposed, which is just saying provinces need to provide this. If any of you want to comment on any of those, I would be very pleased. Thank you.
Ms. Watt: In my recent book, I wrote a chapter devoted to Ashley Smith and what went wrong in my professional opinion in the Ashley Smith case. What I say is that you only have to look at the pictures where she is bound and gagged to see the failure of that system of that case.
To respond to what you brought up, Ashley Smith was treated as if it was a behavioural problem. It was her behaviour that was a problem and they had to bend her will to change that behaviour. Of course, that doesn’t work. It should have been obvious that she required a comprehensive mental health assessment. It should have been obvious before she got to the federal system for that matter.
Mr. Spratt: Forty-eight hours is a long time. That is enough time to file applications. That is enough time to get before a judge. Courts can act expeditiously. One would hope that the supervision of a superior court looking at extending times beyond that can also be done expeditiously.
One would hope with that sort of supervision, there might actually be fewer cases that need that oversight. It is amazing how reasonable people can be, sometimes, when they have to explain their decisions and justify it based on evidence. That type of court oversight, when you are looking beyond 48 hours, can be done expeditiously and we might actually see fewer cases that need that kind of review.
Ms. Wildeman: On community-based supports, I mentioned already the incredible wealth of expertise and experience among Indigenous disability support providers. That is a great place to start. Devoting the resources there makes sense.
I should name the report writers, the West Coast Prison Justice Society’s/Prisoners’ Legal Services, and their report is called Decarceration through Self-Determination. It’s a wonderful report in that it centres the stories of many people who have experienced prolonged segregation and the type of treatment we are talking about today, Indigenous folks. I’ve mentioned Joey Toutsaint and Ricky Leslie, who is another person who’s tried to bring habeas corpus within the circumstances of the structured intervention units. So folks sharing their experiences and the dots are connected to community-based resources.
I would mention one other name, which is Warren. I think that you have spoken in this committee before about the Warren case. That is a case about an individual with concurrent intellectual disabilities and mental health problems who has suffered, again, and for a long time struggled within CSC. I was looking at the case and the decision of Justice Pomerance today. The evidence given about the failure of CSC to respond to that circumstance of concurrent intellectual disabilities and mental health problems is just devastating. It just devastates me to read that.
This would be an individual who, in a hospital, might be okay, but what would be even better is community-based services that are focused on integrating this person socially. It is not like this person has a treatable psychiatric condition. They have an intellectual disability that is not going to be treated and go away. I will stop with that. There is so much potential in that reinvestment diversion plan.
Mr. Spratt: I agree that case shows that the courts do have the expertise and are able to deal with those situations and have an interest in doing so.
The Deputy Chair: Thank you. I wish to thank all of our witnesses for taking the time to be with us today, sharing their expertise and for answering our questions.
Honourable senators, we will now move to the next item of our agenda today to discuss the draft report on the Statutes Repeal Act for the year 2025. You will have received the draft copy of the report earlier today. I believe a more finalized version was circulated. Before we get into a discussion about that, Senator Pat Duncan has joined us. She is the Government Representative Office liaison, I believe. Is that the title? She wished to give us a few comments. The floor is yours to do that, Senator Duncan.
Senator Duncan: Thank you. I am also sponsoring this motion before the Senate. In reviewing the report and having attended the meetings, I had an observation to make.
On page 3, the committee encourages the government to provide a statement of reasons. Then, in the last paragraph and on page 4, it lists a number of important additional information that the committee has requested during the discussion. I know there are a number of members who are somewhat new to this committee and this process. If I could make an observation that this is only the third time that the Standing Senate Committee on Legal and Constitutional Affairs has reviewed the Statutes Repeal Act.
I appreciate the request for additional information that many times I was looking for myself. I would like to add a bit about the process of how we get that information. The government that is referenced in this paragraph in the report is the Department of Justice, which has the responsibility to go to all the departments listed. They provide a report at the beginning of the year. They go to these departments and say, “All right, give us reasons and information. Why do you want to do this?” Then they give the Senate the report. This is a long period of time in between the two reports. Sometimes, things will evolve and that statute will get repealed, or other things will happen.
I wanted to share with you how that happens. You know what it is like, those of you who have worked in government, when one department, like Finance, or Justice, says we need more information. It sits on the corner of someone’s desk until there is hounding that goes on, sometimes in some governments. It takes time. Justice has to do this. My concern is, with the lengthy list of information that is specific, it might hold up that process further in trying to get information.
Please don’t misunderstand. I respect what the committee has done and what they are asking for. I am just encouraging and sharing this is how the process works. If we are very specific and proscriptive, it might hold up the process of getting the information to the committee.
It is a short concern and observation I wanted to share with you in that regard. It is important to have all the information. I appreciate that.
The Deputy Chair: My response to that would be that it is up to the government to bring these motions forward, as they did here. They bring the motion forward only at a point where they have everything ready to bring it forward.
These items that were raised more specifically are items we were discussing that came up as a result of our review of the Statutes Repeal Act and the items that were done, and some of those issues in place with some of them.
It is beneficial for the government to have exactly what we’re looking for, so they know what they need to prepare for when they are putting it forward. We are not asking for a lengthy dissertation on each item, but it gives them a more concise framework to provide us with what we are looking for on that.
One of the items listed is a clear and harmonized numbering system. As you are aware, at the meetings when we were dealing with that, we were looking at three different reports. It was confusing as to what was being dealt with.
I think the government having this kind of information will be beneficial for the government to know exactly what they are dealing with.
Senator Duncan: I appreciate that. If I might respond, when referring to “the government,” we are talking about the government, bureaucracy, who are the public service within the Department of Justice who are preparing this information. One concern, costing or budgetary explanation might be very difficult to obtain that information. It might delay the process, for example. That is one example where the list is very proscriptive.
Again, I appreciate the understanding for the information. I am expressing a concern that it may be in some instances difficult to get that information if it is a proscriptive list. It is important to send the signal to the Department of Justice and all of the officials who come before, this is what we will be looking for. I am in complete agreement with you.
I think I am asking for understanding on the part of the government if there are some situations where they can’t get it, if it is a specific, proscriptive list.
The Deputy Chair: Sure, they are the government. They are the ones requesting to have a statute repealed, go forward or to have it postponed. These are the types of things we heard in our committee, and we need better information to do the kind of study that would do this issue justice every year.
It is something that is important, something that I frequently spoke up in favour of because it is something that we in Saskatchewan did on a regular basis. I noticed that it could be helpful to do it on a federal basis too.
We will entertain some discussion now with members to find out if they are agreeable to the report or have feedback.
Senator Simons: Thank you for this report, everybody who was involved in creating it.
Senator Duncan raises an interesting question. There’s only one of these things that I think could be problematic. The rest of them are pretty straightforward; an explanation in plain language, an indication of whether they intend to repeal or not, justification, timelines, name of the witnesses, that should all be really simple and not require work.
One thing that stands out to me though is the costing or budgetary explanation of the financial implications associated with the repeal or deferral of each item. That may be a trickier thing, because many of these things do not have a clear-cut costing to them. What is the cost of not repealing the Nuclear-Test-Ban Treaty? I do not recall that being something that came up in our discussions.
I am wondering if steering, or whoever was involved in the crafting of the report, could explain. That is one thing that I am a little uncomfortable with because it seems to me that it could require a fair bit of extra effort that those other criteria do not.
The Deputy Chair: The chair specifically asked that be in there, and he is not here to provide his detailed explanation, but I thought it was reasonable when he raised it. There were some items I recall costing in budgetary information being discussed.
Senator Simons: Yes. Asking for all of them, I am worried we will send someone spinning down a rabbit hole as they try to figure it out.
Sometimes that is not going to be an easy answer. What is the cost of not having brought into force something? Are we talking about the lost opportunity costs? That is the only thing I wanted to flag. I see Senator Tannas nodding.
Senator Tannas: I have the same issue. For that one, I think we should add to the note, right at the end: “If germane to the decision to repeal or defer.”
If it was not even a part of it, i.e., not applicable, they do not have to. Just put NA in the box and carry on.
I would say, Senator Duncan, just following on comments of Senator Batters, it is the third time. The first time — are we in camera or public?
The Deputy Chair: Public, of course.
Senator Tannas: We are in public. Okay. I wanted to know.
The first time that folks came it was a public meeting, and basically every answer was, “We are continuing to consult.” We had bills with 50 years on the books, that they were continuing to consult. That is how much effort they put into the first year. We roasted them. Last year they came back with better homework.
This time, I think they came with even better homework. We got into some areas where, now we’re getting more sophisticated and we want to raise the bar. I think all of these are great. I like there is a person now in charge, Ms. Côté, is that right? There you go. She was quite keen to keep this quality improvement program going. She did say that they will continue to do better.
I think it is early to start providing them with excuses. I know that is not what you are trying to do. You were trying to point out this one area, this one piece could potentially be problematic. I agree. I think we should fix it up. Sorry to be so wordy. Thank you.
The Deputy Chair: No, that is okay. Tell me if I got it. I thought about using the word “relevant” instant of “germane.”
Senator Tannas: Relevant is good.
The Deputy Chair: If relevant to the repeal or deferral of the item.
Senator Tannas: The decision they made to repeal or defer.
The Deputy Chair: Yes. If relevant to their decision regarding repeal or deferral of the item. Okay. All right.
Senator Saint-Germain: First, I apologize. Sorry for reacting like a former deputy minister.
My main concern was also with the costing or budgetary explanation. I also wanted to amend it. I appreciate your suggestion, Senator Tannas.
I believe that the presentation is important. The first three dots, a brief summary of each item, explanation in plain language, if we have to go there; an indication of whether the government proposes to defer the repeal of the item, to when, or to allow the item repeal. We can merge these into one paragraph. It would look like it is less demanding.
We also have, I would say, breakdowns that are logistical or technical. The names and titles of the witnesses, frankly, we can manage that with the clerk. We don’t have to put that in the report.
A clear and harmonized numbering system to ensure ease of reference for members. I don’t want us to be anecdotal in this report. There was an issue. I think it was a miscommunication — I’m not blaming anyone — between mainly the Department of Justice and the Library of Parliament or the clerk, but it is not a big issue, so I would delete that. Again, I would delete the names and titles of the witnesses. We always receive that beforehand, so I would not go there.
I do believe that the three following paragraphs are really the substance of our observations and they are important.
The Deputy Chair: I wanted to respond to a little bit of that.
This potentially hampered or had a substantial impact on the meeting that we had. This is a report that explains what happened during our study that we had over those two meetings. The need for a clear and harmonized numbering system — actually, the Library of Parliament report was the best one. It was between the Department of Justice and the Senate Government Representative’s Office, or GRO, I think, had provided something different. I could be interpreting that wrong, but it was definitely from the government, and I think Senator Duncan said it came from the GRO. Then there was the Library of Parliament one. We had three different versions, and it was quite confusing.
This report is not meant to be — while it is instructive as to how the Statutes Repeal Act meetings will go on for all time, we are specifically talking about how these two meetings went, and that was a definite hiccup that happened. Frankly, one of the easier things for the government to do is to provide a clear and harmonized numbering system and the names and titles of the witnesses. Some of the documents had that and others didn’t. It was also confusing that way.
Personally, I think it is an accurate reflection of some issues we had in those couple of meetings and also a matter of discussion as we discussed how this report would be drafted. That would be my comment on that.
Senator Saint-Germain: If I may, the most important is that we agree to amend the item related to a costing or budgetary explanation. Otherwise, we look like we don’t understand how the machinery of government works. I like the amendment. Thank you for this.
Senator Miville-Dechêne: I agree with Senator Saint-Germain that we don’t need to put the names and titles of the witnesses. That is not useful. They were all there. Sometimes they were not mentioned, but they were there. I saw the names.
Thank you for your amendment. I think it is better like that. I would say, in answer to Senator Duncan, that in the paragraph before the list, it is written that the committee “recommends.” We are not saying you have to do it. We are recommending, which is a term that gives some leeway to everything on this list. I think the term “recommends” is appropriate in that case. If it is impossible, they wouldn’t do it.
Obviously, you may know the civil service better than I do, but I think this is not exaggerated. I understand what you are saying, but at the same time, I don’t think they need to be afraid. This is not that much, and it is a recommendation.
Senator Dhillon: Thank you. My apologies first not being here because of other duties. I appreciate all the work that honourable senators have done on this. As a new senator, I will absolutely defer to some of you who have been here before. Thank you for that, Senator Tannas.
To follow up on Senator Duncan’s commentary, and also to what was shared regarding the word, “recommends.” Is that us opening a door where we are asking for information and then potentially leaving and not getting that information, and then it’s going to come back to that was a recommendation and not really a requirement? I will leave that question there.
Senator Duncan, I was just curious. Other than the financial implications, that question that we have already addressed, were there any other items that you thought would slow this down? Was that the only one?
Senator Duncan: Generally speaking, this is quite a prescriptive list. It’s very specific. That was the point I was raising. The concern is whether we missed something or if it is all-inclusive.
Again, I absolutely fully support this. I think “recommends” is the right choice of word. It sends a strong signal to the public servants who have done exponentially. The work has been valuable, and that was repeatedly expressed through the committee hearings that I attended.
I’m fully supportive of this. I think the amendment that is suggested is absolutely on point.
Senator Dhillon: Thank you, Senator Duncan.
Senator K. Wells: To be brief, I certainly support Senator Tannas’s amendment. I think it’s a good one. Thank you for bringing it forward.
For further clarity about that particular budgetary bullet, I wonder if we think we need to put “a financial costing” to be clearer about what costing actually means, as opposed to what we heard — that there are many different types of costing. We are looking for numbers in particular. I leave that open to the group if they want to include a specific costing or leave it broader.
The Deputy Chair: It does say later the financial implications.
Senator K. Wells: Maybe that is clear enough, then. Thank you.
The Deputy Chair: I think it should be.
[Translation]
Senator Oudar: I’m going to take a step back, because I’m new to the committee. This Statutes Repeal Act surprised me greatly. It sets a precedent; there is no such thing in other provinces. We assume the government is acting in good faith, but if it leaves a law untouched for 10 years, it is automatically repealed.
In the Senate, we only see the file if the public servant or public servants request an extension, so we never see the file under the Statutes Repeal Act, if I am not mistaken, if there is an automatic repeal. I find it serious that we pass laws, sometimes spending months and years consulting with groups, hearing witnesses and doing all the work we do, and that in the end, the government does nothing and the legislative provision automatically lapses without the Senate having anything to say. That is how I understand the law; please correct me if I am mistaken.
I reread it several times and looked at the constitutional aspects last week; I looked at a lot of things and read the bill, which is very short. I think that one day we will have to question the validity of this law, which does not exist anywhere else. Why, ultimately — and this is perhaps what we should be looking at — are there laws that never come into force and are automatically repealed?
That is what I would also ask for in the report, because if no effort has been made on a bill for 10 years, even though it has passed through the Senate, and we have met with groups and heard from individuals, we need to be informed of that. I was surprised and I shared this with Senator Duncan, but I am not prepared to recommend repeal, because we have not assessed the impact of such a repeal. It may have its merits in historical terms.
The senator also spoke about the historical context. I stand by my comment about the merits of this act, which I question, even in terms of constitutional law, because the power belongs to Parliament, and therefore to the House of Commons and the Senate, not to public servants. It is as if we were indirectly giving public servants the power to do nothing for 10 years, and the law would then be automatically repealed.
I will close this parenthesis and move on to the recommendations.
[English]
The Deputy Chair: Senator Oudar, could I just give you a bit of a response to that? It’s not only the deferral of the repeals that were part of our study but also the ones that were actually going to be repealed. Both of those were in there. That was part of the reason for the confusing reports, because one of the reports had only the ones that were being deferred for repeal, and then the other report had the full list of the things that were suggested for repeal as well as the deferrals. Both of those were included in there.
Yes, there has been a lot of talk about the government and the officials and the bureaucracy as to how they deal with it, but it’s actually up to us. The motion is a motion of the Senate, so it’s a motion of Parliament, and that’s why we’re doing this. That’s why we need all of this appropriate information, because, yes, you’re very right: We have spent much time over many years — some of those acts, I was actually in the Senate during the time that one act came forward. We spent a lot of time at the front end, studying and passing that legislation, so when they don’t even put it into place, we should, at least, receive an explanation why and what is going to happen.
I think that’s why Parliament, yes, does have a very important role in it.
[Translation]
Senator Oudar: Allow me to make a second point. I agree with you. This preamble brings me to my second point: I fully agree with the contents of the report. This justifies having a list of requests, i.e., a summary, explanations and indications.
I have one additional point to add, which I asked the officials about. I am quite comfortable with giving an indication as to whether or not the government is proposing to postpone the repeal. I think we need to know whether they consulted Canadians and what the outcome was. I asked the question and was told that no, there had been no consultation, which surprised me. I therefore propose adding a point if the budget issue is of concern to some.
Sometimes, lawyers have a solution, which is to add the words “if applicable” at the end of the sentence. If they do not have the financial explanations, they will not be provided, but if they do exist, they will be obliged to provide them. I will leave that to the drafting committee, but I was inclined to mention the information we would like to have for the members of the Senate, so that we can make an informed decision based on the information we will have on this exercise over the next few years.
[English]
The Deputy Chair: I’m wondering if you would think, Senator Oudar, if leaving the consultation issue to questions from senators — I know that, perhaps, I didn’t raise that as many times this time, but there have been other years where that has been a substantial part of my questioning on this. I hope the department officials are watching this and can see the concerns that we have.
Would you be comfortable if we did not specifically include that, but that could be something that’s left for our questioning of the witnesses, of officials that come forward when they do one of these things? Would you be comfortable with that?
Senator Oudar: Yes.
Senator Saint-Germain: In my first intervention, Madam Chair, I forgot to highlight a redundancy in our report. I refer you to page 3, last paragraph before the dot when we state:
. . . the committee recommends that a consolidated document containing the following information be provided to the clerk prior to the start of the study:
And then page 4, the first paragraph after the dots:
Receiving this information ahead of time in a consolidated document will greatly assist the committee’s work.
It’s exactly the same idea and the same meaning with different wording. My proposal is that we delete the first paragraph after the dots on page 4.
The Deputy Chair: Could you repeat what you would like to delete? Sorry.
Senator Saint-Germain: Page 4, first paragraph after the bullets:
Receiving this information ahead of time in a consolidated document will greatly assist the committee’s work.
Which is, once again, the same meaning as the one stated at the end of the last paragraph of page 3 before the dots.
The Deputy Chair: I guess the only difference would be that the ending part of that — the part that you would like to delete — says, “will greatly assist the committee’s work.” I think it was intended to be a wrap-up of why this was needed. It will greatly assist the committee’s work.
Senator Saint-Germain: This is really redundant. If we want to speak to say nothing, we can leave it there.
The Deputy Chair: I think that is important, because sometimes people don’t know why we do things. We’re not just asking for these things to be bothersome. We’re trying to do it.
What if we, yes, delete that but then include in that first place where it says, “prior to the start of the study,” we could put a comma and then, “as this will greatly assist the committee’s work,” and then have that list? Then we could include both. We would not have the redundancy but include the reason that we want to have this information.
Senator Saint-Germain: Which is so implicit. We’re not speaking to stupid people. I do believe I was impressed by the civil servants. I believe that they would understand the —
The Deputy Chair: That’s right, but it’s a public document, and I think it is important to include what —
Senator Saint-Germain: Canadians are not stupid.
The Deputy Chair: No, of course, they’re not stupid, but it’s important information to receive.
Perhaps other senators have a point of view on that.
Senator Tannas: I’m okay. I think we can be friendly, or we can just get down to business and drop it out.
I’m happy to see it go, I think, either way.
I had another concern, though. Senator Oudar got me thinking when she mentioned if there is a chance that we are seeing bills disappear without this committee seeing them?
Prior to this bill coming in, a musician who was dismayed to discover that bills weren’t enacted and discovered it, and Tommy Banks put the thing forward, and said, “This is nuts,” right? He wasn’t a lawyer. He just said, “I can’t believe it.” I couldn’t believe it when we heard about this, that laws sat on the books not enacted for decades, and there was no process to get rid of them, other than for a government to have another bill to repeal it.
This brought the idea of automatic repeal after 10 years after it comes to the Senate to ask that it be repealed, right. We still have the chance to actually recommend to the Senate that a bill not be repealed, and we just haven’t done that. We’ve taken their advice in all cases that I’m aware of.
There isn’t any bill disappearing without us seeing it and us reporting; is that your understanding, chair?
The Deputy Chair: That is my understanding, because like I was explaining to Senator Oudar, this report contains not only items that are scheduled for a further delay of repealing it but also ones that are going to now be repealed. Some of them have been on the list in previous times, and you have also heard some of the officials that came to testify here say that, “We don’t expect you to see this one on your list next year,” meaning we don’t expect to be asking for a further delay of it. It will simply be explained to us that, “Okay, we think we’re now ready to repeal,” as we had, I believe, seven or eight of those on the items for this year.
Senator Tannas: Thank you.
The only other comment that I had is that I think it would be helpful — and this is for our Library folks and clerk, who will be here even if some of us aren’t a year from now — if we’re going to Government Representative’s Office, comments and colour around something, and we’re going to have Library — it should all just be on one page.
The Deputy Chair: Right.
Senator Tannas: Why don’t we have one page where we have the information? Then, if the GRO wants to add this, they say this and the library says this — and it’s all on one page. That would be great. Then we don’t have to flip through different documents.
The Deputy Chair: That’s why the part about the “clear and harmonized” —
Senator Tannas: I agree with you, Senator Batters. Thank you.
Senator Clement: Thank you for the report. I agree with all of the comments that have been made, including Senator Saint-Germain’s comment about removing that.
I really think this is a good process. This is my third year doing it, and it has gotten better every year. Reading this report, it doesn’t feel like that’s what we’re saying. So I appreciated that. I recognize many of the faces of the bureaucrats who came back and who did better this time than they did last year, so that’s good. I don’t know if this report really conveys that sentiment around the fact that things are improving.
That’s my comment: I think the report is okay, and I’m not going to nitpick. Maybe the removal of certain things speaks to improving the tone of this report because, I think, overall, we were satisfied with that exchange, particularly that second meeting, Senator Batters —
The Deputy Chair: When we figured out what the reports were.
Senator Clement: — was much better than what we had gone through last year. I just think we could perhaps have a more positive tone, because I thought it went rather well.
The Deputy Chair: Frankly, it wasn’t even necessarily an officials’ thing; it was a government coordination thing that was the problem. All the officials, yes, they were actually very helpful. I agree with the comments made about how we have seen this process improve. I think we just need to make sure the government coordination — if they’re going to do all the work to get this significant a kind of a motion — this is something — and I know, having previously been a joint chair of the Standing Joint Committee for the Scrutiny of Regulations, or REGS, that some of these things go on for years and years. We need to have an efficient way to deal with these kinds of issues.
This is something that certain people in certain departments work on all the time. When they’re going to put that process forward, I think it will be helpful to them to have this kind of information.
The officials who came and presented about their items did a very good job. What needs to improve and what we’re trying to provide here is that we did have a very confusing meeting that resulted from, potentially, some lack of overall government coordination — not necessarily the officials in these particular departments who sat here for a long time and gave us very good answers. We didn’t have anything that we disagreed with them about to say, “No, we don’t think this should be deferred” or that we don’t think that should be repealed quite yet. I want the officials to know that we very much appreciated their work.
We just want —
Senator Clement: Do we say that?
The Deputy Chair: Yes, maybe we could say that.
Senator Clement: Because I think the tone is . . .
Senator Miville-Dechêne: Something about the fact that, over the years, the testimonies of civil servants have been more fulsome or something of —
Senator Simons: Fulsome — that’s one of my words.
Senator Miville-Dechêne: I’m sorry, I’m not English-speaking.
Senator Simons: Most English people don’t understand that “fulsome” is a terrible insult. Most people think it means “full.” It means “hypocritical” or —
Senator Miville-Dechêne: What I mean is that we could add something like “Over the years, we have noticed that there has been . . .”
The Deputy Chair: Improvement.
Senator Miville-Dechêne: Yes, improvement —
The Deputy Chair: How about, “the committee wishes to note that, as this is a few years into this process, we have noted improvement and we want to thank all of the government officials that helped prepare for this committee and attend this committee and help us with our study, and we look forward to continuing efficiency” or something like that.
Senator Clement: I think that’s fine.
Senator Miville-Dechêne: I haven’t thought about it. I thought about what should be better, but, to be frank, I haven’t thought about that, so thank you for mentioning it.
Senator Simons: There is one thing I have to flag, because we corrected the bullet points about financial things, but on the previous page, page 3, in that middle paragraph, it’s repetitious and it says the “financial thing.” I think maybe that whole paragraph could just come out. You just say, “Your committee encourages the government —”
The Deputy Chair: Could you please say where that paragraph is?
Senator Simons: “Your committee encourages the government to, in future, provide a statement of reasons explaining why the Acts and provisions listed in the annual report have not yet come into force . . .” We don’t need to say that twice. It gets into the costs and savings. As I said before, that is an unfair thing to ask for every time.
Michaela Keenan-Pelletier, analyst, Library of Parliament: I wanted to point out that at the end of the first paragraph, it says, “when tabling the required annual report.” So I think it’s the timing that’s different between the two. In the first one, we’re asking for all of that information when the annual report is tabled at the start of the year, and in the second paragraph, it’s if the report and list are referred to committee. So, yes, I see the redundancy, but I just wanted to point that out so it’s clear.
Senator Simons: But the important thing is —
The Deputy Chair: It was not actually redundant. The chair requested that in both places, because the initial part came through the Senate in May and we’re getting this now in November.
Senator Simons: Thank you for clarifying that; I understand that now. My objection to the “costs or savings associated with the act not coming into force or being repealed” still stands. I think that is an unfair requirement.
The Deputy Chair: What about saying “any”? It says what we’re having later to say, “if relevant.”
Senator Simons: Senator Tannas flagged one because he had been involved in it; it was an Indigenous lands claim that never — not a lands claim — whatever — a modern treaty that never came into force. How do you calculate the costs or savings of that? I just think we’re asking for something that doesn’t match up.
The Deputy Chair: Okay. What about if we say, “the relevant costs or savings”?
Senator Simons: I’m still not sure it works.
Senator Tannas: If they don’t do it in the report — we’re always going to refer to committee until there’s nothing left to refer, so we’ve got the alternative and then the right spot. They can either do it upfront or they can do it when they come before us. They may have to do it twice, in fact: They may do it in their initial report, which they tabled last January, signalling their intention, and then when they come here. Is that right? Typically, it’s tabled at the beginning of the year.
Senator Simons: I know it’s difficult with the chair not being here and this being his idea, but I just don’t understand how we could ask them to do that for every statute, some of which, as I said — what is it that we’re actually trying to get to?
The Deputy Chair: It was a specific request of the chair. He’s not here, so he can’t provide the full explanation on that.
What if we just, for ease of it — it’s almost 6:20; we need to get this wrapped up — leave it in for the second part and take it out for this part in the hopes of just having it dealt with. Would that be fine?
And that other section about the names and titles of witnesses — would senators be happy if we took out that particular item?
Senator Simons: Yes, because they’re here with their name cards.
The Deputy Chair: All right. Then, perhaps if committee members would be happy for the steering committee to just add a nice little paragraph about a thanks to the officials, would that be acceptable?
Senator Clement: Continuing to improve efficiency.
The Deputy Chair: Yes, efficiency.
Given all of that, then, with those small changes to be added in mind, honourable senators, is it your pleasure to adopt the report?
Hon. Senators: Agreed.
The Deputy Chair: Thank you. Taking those potential changes into account, is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report, in both official languages, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes as required?
Hon. Senators: Agreed.
The Deputy Chair: Is it agreed that I table this report to the Senate, by December 4, 2025, in both official languages?
Hon. Senators: Agreed.
The Deputy Chair: Thank you, senators.
(The committee adjourned.)