THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, February 25, 2026
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.
Senator David M. Arnot (Chair) in the chair.
[English]
The Chair: Good evening, honourable senators. I declare open this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. My name is David Arnot, and I’m a senator from Saskatchewan.
I invite colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from Saskatchewan.
[Translation]
Senator Miville-Dechêne: Julie Miville-Dechêne from Quebec.
Senator Clement: Bernadette Clement from Ontario.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Prosper: Paul Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Busson: Welcome. I’m Bev Busson, senator from British Columbia.
Senator Pate: Welcome. I am Kim Pate, and I live here on the unceded, unsurrendered territory of the Algonquin Anishinabe Nation.
Senator Simons: Senator Paula Simons, and I come from Treaty 6 territory.
Senator K. Wells: Kristopher Wells, Alberta, also Treaty 6 territory.
The Chair: Senators, before we go any further, Senator Pate gave me the sad news that Tona Mills — this bill is presented in her name — originally from Comox First Nation on Vancouver Island, passed away on Thursday, February 19. I ask members of the committee and those in the room to stand for one minute of silence in her name and honour.
(Those present then stood in silent tribute.)
Thank you, everyone.
Senator Pate, is there anything you would like to say concerning Ms. Tona Mills?
Senator Pate: Thank you. I would like to think she and Senator Josée Forest-Niesing, who was the initiator of this bill originally, are now guiding us from the spirit world. Thank you.
The Chair: Honourable senators, 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 tonight, we are pleased to welcome Mr. Mervin Thomas, Chief Executive Officer, Circle of Eagles Lodge Society; Joseph Tsannie, Vice Chief, Prince Albert Grand Council, Treaty 6 territory; and Kory Wilson, Chair, BC First Nations Justice Council.
Thank you for joining us here today. We will begin with opening remarks from each witness. I ask you to limit your remarks to five minutes or so. Following that, we will enter into questions from the senators.
Mervin Thomas, Chief Executive Officer, Circle of Eagles Lodge Society: Thank you for that opening. Condolences and honour to those mentioned.
I wish to start by acknowledging the traditional territory of the Algonquin people.
My name is Merv Thomas. I am Nehiyaw Cree from Pelican Lake First Nation in Saskatchewan, Treaty 6. I am glad to see a lot of Treaty 6 people represented here.
I now live in Vancouver, B.C., and have for the past 36 years. I am reminded that I do not miss the snow and the cold. I have turned into a big wuss.
My greatest role and responsibilities are those of “Papa,” the name my grandson calls me as I continue to raise him. He has taught me so much about unconditional love and understanding, as he is living with ADHD.
My other roles are as the Chief Executive Officer of the Circle of Eagles nationally and the Chief Executive Officer of the Circle of Eagles Lodge Society, or COELS.
Our primary mandate at COELS is to assist federally released Indigenous brothers, sisters and relatives to successfully make the transition from prison to community. We’ve been doing this for the past 55 years; it will be 56 years in May. We’ve successfully assisted many to return to their homes and communities in a safe manner. Many of them are successfully raising their own children and grandchildren.
We provide numerous programs and services to those who are considered high-risk by the system, which includes dangerous offenders, long-term supervision orders, tandem, stat release with residency and high-need individuals, such as those with mental health issues and addictions. We have worked with many who have experienced long-term segregation.
In 2000, we began to expand our programs and services. Today, we operate two federal community residential facilities — halfway houses. We just bought another building for second-stage housing. We have a pre-employment program and a food program that goes to feed the homeless and Elders in our community. The brothers feed the homeless and the sisters feed the Elders.
We provide land-based healing through our canoe program, using a traditional seagoing canoe that we built in the early 2000s.
We have Elders, Sweat Lodge Ceremonies and Sacred Fires. We take the brothers, sisters and relatives to morning spirit baths, and we also provide many other ceremonies, such as the Sacred Pipe Ceremony.
Our philosophy is based on traditional values of kinship, respect, love, compassion, empathy, restorative justice and accountability.
In the early 2000s, we had a section 84 worker; however, her contract was pulled as she began to work within the institutions. We continued to do our work with limited capacity. We review files today, and we continue to meet with people inside the system to prepare them for release into community.
Two years ago, we received some funding from the Law Foundation of British Columbia to support the revitalization of Indigenous legal traditions through section 84 of the Corrections and Conditional Release Act, or CCRA. Although the work began in British Columbia, the issues we encounter are national in scope.
That same year, in partnership with the Correctional Service Canada, or CSC, we gathered key stakeholders to begin to address section 84. Together, we hosted a national gathering of experts and stakeholders last fall, when participants agreed that the current section 84 process has significant room for improvement. In response, we are developing three practical toolkits — one for communities; one for brothers, sisters and relatives; and one for CSC staff.
We have also signed an MOU, or memorandum of understanding, with CSC to conduct research to strengthen the section 84 process. At the same time, we are also negotiating a section 81 agreement. Section 81 was created so Indigenous communities could take a leading role in the custody, care, healing and reintegration of our own people, guided by Indigenous laws, protocols and the teachings of our Elders.
Currently, CSC section 81 agreements leave most of the legal authority in the hands of CSC. We believe that is not what Parliament intended when it created section 81. We are embarking on a negotiation with CSC to establish a section 81 healing lodge in Vancouver.
At the section 81 summit, held last week in Vancouver, the Elders and the delegates provided us with key recommendations on moving forward with section 81. Minister Gary Anandasangaree and my board of directors have challenged us to have the contract completed by March 31. That will be a very fast turnaround.
Based on the current section 81 agreements, only women who are considered a low public safety risk would be considered for section 81 in our facility. All other women would be excluded based on CSC criteria and the current negotiated agreements.
Our organization intends to take a new approach, to build a new relationship with CSC that fulfills their mandate for public safety and keeps the promise of Indigenous authority over all Indigenous sisters and relatives who want access to our programs and services.
In closing, we strongly believe that Indigenous Peoples must lead and implement these initiatives — nothing for us without us. Much love and respect from me — Merv, Papa and CEO.
Joseph Tsannie, Vice Chief, Prince Albert Grand Council: Good afternoon, honourable senators. I come from a Dene community, Hatchet Lake Denesuline First Nation, Treaty 10 territory, but our office is located on Treaty 6 territory in Prince Albert.
First, condolences to Senator Pate on the passing of Tona Mills. Our communities and our leadership are grieving with you.
To the family of Tona, we send our condolences. It is very hard to think about their situation.
I am here to speak to the amendments to the Corrections and Conditional Release Act through Bill S-205 because Canada’s correctional system has systemically failed Indigenous Peoples and because the act has become a vehicle for discrimination.
If we are honest about how deep the failure is, we have to ask: Can we fix a broken act? Or do we need to go back to one of the original options and create an entirely new legislative framework for Indigenous Peoples, grounded in the inherent right to self‑government, which, today, we also speak of as the inherent right to self-determination?
I will ask a question, and I would like a written response to it and support from the senators. I put it to you today, as we consider amendments to this act: Who gave the authority to corrections over Indigenous Peoples? Did any of our Chiefs give that authority over our people to corrections, to determine what is best for our people? What was the intent of that transfer of our people to corrections?
Chief Coreen Sayazie of Black Lake Denesuline First Nation, a Treaty 8 nation, along with the Prince Albert Grand Council, which represents 12 northern Saskatchewan First Nations with 50,000 members — that’s including Black Lake Dene Nation — and the Federation of Sovereign Indigenous Nations, National Chief of Assembly of First Nations Cindy Woodhouse Nepinak, were all at the December 17, 2025, Parole Board hearing at Kent Institution in Agassiz, B.C., where two parole members denied the release of Mr. Joey Toutsaint to his community and to his Chief, Chief Sayazie.
Joey’s community and his leaders want him home now. Despite being tortured in structured intervention units for eight years, Joey continues to live today.
Joey is a strong Denesuline warrior. Joey is resilient, like his ancestors before him.
Chief Sayazie is requesting your support for the immediate release of Joey Toutsaint under the care of his community, leaders and Elders so they can immediately give him the love and care that he needs.
The Constitution does not establish Indigenous consent. The Indian Act did not give that authority. Treaties did not give that authority. Indigenous Peoples did not give Canada the authority for corrections over Indigenous Peoples.
Canada is failing Indigenous Peoples in the area of corrections. The mass incarceration of Indigenous people is a national crisis. It is also a moral and constitutional failure. Canada can’t claim it doesn’t know. Canada has been told repeatedly by its own institutions and processes. The Office of the Correctional Investigator and federal reporting have documented, year after year, that Indigenous people now account for about one third of those in federal custody.
Indigenous women have been driven to the edge of the system. The Correctional Investigator has publicly reported that Indigenous women are nearing 50% of federally sentenced women in custody. This is injustice. This is systemic discrimination.
With current tough-on-crime shifts, including proposed bail and sentencing reforms such as Bill C-14, the bail and sentencing reform act, the rate of incarceration of Indigenous people has been increasing at almost 1% per year since 1992, and there is a real risk that this crisis will continue to grow and not shrink.
Bill S-205 is important because it recognizes a central truth: Canada’s correctional practices, including isolation-like conditions, are harming people, especially Indigenous people.
Public Safety Canada’s own reporting acknowledges that CSC continues to struggle to operate structured intervention units, or SIUs, in a way that actually eliminates solitary confinement-like conditions, which was the stated reason that SIUs were created.
I wish to speak about Joey Toutsaint because his case shows what happens when the law promises Indigenous participation but the system treats it as optional. Mr. Toutsaint is a Dene man from Black Lake Denesuline First Nation and a member of Treaty 8. In December 2025, after a community assistance hearing at Kent Institution, the Parole Board denied him day parole. His nation was present and spoke in support of his day patrol. Indigenous leaders and organizations were present. Elders spoke in support of Joey’s release on day parole, and a structured, culturally grounded release plan was presented. Yet the decision making still reflected the same systemic patterns. Indigenous community planning is too often treated as secondary to CSC’s involvement.
This is exactly where section 84 matters, because Parliament created section 84 so that when an Indigenous person expresses an interest in release to an Indigenous community, its Indigenous governing body can propose a plan for release and reintegration. But in Mr. Toutsaint’s case, a core concern raised on appeal is that the plan was treated as problematic because it was developed without CSC’s involvement.
Honourable senators, section 84 does not exist to make Indigenous communities dependent on CSC approval. Section 84 exists to enable Indigenous-led release planning to ensure that reintegration is supported by community responsibility. If CSC’s absence becomes the reason a plan is discounted, then section 84 is being inverted, and its purpose is being undermined.
I want to underscore this. The parole test is not whether a person can thrive inside a maximum-security prison. The question is community risk — whether release would present an undue risk and whether release would support public safety through reintegration.
In Joey’s case, the evidence is that he has endured extreme institutional harm, including over 3,000 days and counting of intermittent isolation, as recently as November 2025. That matters because it changes what “behaviour in custody” means. It changes what “participation” means. It changes what “risk” means.
When federal decision makers fail to grapple with how prison conditions, including isolation-like conditions, create crisis responses, they end up criminalizing trauma and treating institutional damage as proof that release is impossible.
That is a systemic failure.
I now want to speak on section 81 because the committee cannot fix the CCRA without confronting the funding discrimination at its core.
Section 81 was created to support Indigenous communities to provide correctional services, including healing lodges, so our people could serve sentences in culturally grounded environments, with community accountability and reintegration at the centre. But what has Canada done? It has built and maintained a two-tier system, where CSC-run healing lodges are funded at dramatically higher levels than Indigenous-run section 81 lodges.
The Office of the Correctional Investigator reported that the annual cost per resident was approximately $113,450 at CSC‑controlled healing lodges, compared to approximately $70,845 at community-run section 81 healing lodges — about 62 cents on the dollar.
In 2023-24, the OCI reports CSC spent $12,707,241 on section 81 healing lodges, compared to $24,665,000 on CSC-run healing lodges, meaning CSC spent about twice as much on its own healing lodges as on community-run healing lodges.
The Chair: You will have to wrap up fairly soon because we have 10 senators who would like to ask you questions.
Mr. Tsannie: In closing, thank you for the opportunity. We know there are some meaningful changes.
The one question that I raised is important to us because we want one of our members home. We want to look after our own people. Somewhere down the road, we need to develop a process where our Indigenous governments are respected and the autonomy of First Nations Chiefs is respected. We need to start building those capacities. First Nations can no longer be sidelined and have somebody else looking after our people. We are well capable of looking after our own First Nations people.
Thank you for the opportunity.
The Chair: Thank you, Vice Chief. Ms. Wilson?
Kory Wilson, Chair, BC First Nations Justice Council: Thank you to the people whose territory we are on today for allowing me to be here. I cannot help but think of the irony with Tona’s passing. She was born in Comox, as was I. That was the place where she moved away from self‑determination.
Comox is a place where my family has found safety. My grandfather moved our family there in 1951 when we were allowed to live off-reserve. Because of that, my dad never went to residential school, and I did not suffer some of the consequences of having parents who went to residential school. I know the hospital, and I know the place.
I am Kory Wilson, Kwakwaka’wakw, from northern Vancouver Island, and I am very grateful to be here today and to support you in this — what we believe is a bill that must be supported.
I represent the BC First Nations Justice Council. We have 25 strategies and 43 lines of action, and we aim to address the overrepresentation of Indigenous people in the justice system, as well as systemically reform the current justice system and revitalize Indigenous ways of knowing and Indigenous laws and ways of being. I am here on behalf of the council to offer our words, energy and time in the spirit of partnership, accountability and ensuring just transformation.
We know the reality of isolation in federal prisons, and its impact on Indigenous people is clear. It is evident. There is no question it exists and continues to exist. It must stop.
The evidence is clear and consistent that isolation is extremely harmful, and that isolation and the use of isolation are disproportionately applied to Indigenous people. This requires significant oversight that federal corrections have not provided to this point; otherwise, we wouldn’t have the overrepresentation that we do.
We know the Canadian courts, international bodies, various studies and various inquiries have all indicated that this is not appropriate. We can talk about the Mandela Rules of 48 hours. We can talk about all of these different things. There is no evidence that says solitary confinement is going to lead to less recidivism. You know what I’m saying. There is no evidence of that.
We need to make sure that we look at what is actually going to resolve the issues and challenges that the people who end up in the criminal justice system face, as well as how we can ensure that they can be integrated back into society in a way that is constructive, positive and moving them — particularly for Indigenous people — toward a path of self-determination.
The Structured Intervention Unit Implementation Advisory Panel reported that many individuals placed in these units experience conditions equivalent to solitary confinement. Again, a solution was posed that ended up with the same consequences as the problem. I’m not necessarily saying that people intended that, but that is the reality.
This panel identified significant gaps and oversights in accountability in federal corrections in their own report of March 2023. They concluded it’s impossible to suggest that there is not a serious problem concerning the use of structured intervention units for Indigenous people in these institutions.
Senator Pate, in your second draft of the bill, you indicated that 96% of the people that go into these units are Indigenous people, and the statistics themselves, if that’s not enough to understand that there’s a serious problem facing Indigenous people in the criminal justice system, I’m not sure what is. We’re 5% of the population. It’s unacceptable that we represent any group over and above 20% in any area, and the fact that 96% — and I would argue that probably the remaining 4% are people who haven’t yet found their Indigenous identity.
It’s unacceptable, and this is indicative of the fact that our systems, our structures and our policies are failing Indigenous people and are not designed for Indigenous people. People say all the time that the system is broken. The system is not broken. The system is working exactly as it’s been designed to, because it was designed without Indigenous input. It was designed without the knowledge of wholeness and wellness and balance and what people require to be whole if they’re not getting it from their families.
If my dad had gone to residential school, I highly doubt I would be in front of you here today. That is a privilege that I have. Neither of my parents went to residential school. They have multiple university degrees, and I had no choice but to follow in their footsteps. But more than that, they knew how to get me there and what was required. Not all people have that same privilege.
This bill introduces the safeguards and the accountability mechanisms that are needed to ensure that this is changed and righted because for Indigenous Peoples, it’s clearly not working the way it is. There need to be other mechanisms. There need to be things to ensure that federal corrections are doing what they’re supposed to do, that Indigenous-led organizations such as the Justice Council and the two that they represent as well are consulted. As Merv said at the end, nothing about us without us.
It allows Indigenous people to return to sentencing court if they need it as well, if they feel that they’re being harshly treated. It strengthens the requirements for individuals facing obvious mental health challenges. Instead of going into confinement, into the structural units, they go to get the mental health support they need in a crisis.
The bill supports Indigenous-led solutions and community-based pathways that reflect Indigenous laws and values.
One of the notions I face a lot as the Chair of the Justice Council with my colleagues and the other side of the bar is that these are new concepts: this idea of Indigenous laws, Indigenous ways of knowing and being, or this concept of pluralism. It’s simply not true. The Justice Council in British Columbia gets its mandate from the 204 First Nations in British Columbia. That’s 204 Indigenous ways of legal understanding. We had a pluralism long before the others arrived. This concept of legal pluralism and paramountcy are things we can overcome if we actually engage in those bold and courageous conversations and recognize that we know what works, and we have evidence of it working, and it can work.
Our BC First Nations Justice Strategy is based on those two tracks: transforming the current system as well as revitalizing Indigenous ways of knowing and being and Indigenous laws. And the foundation is diversion. We wouldn’t have a problem with overrepresentation in the justice system if Indigenous people didn’t find themselves in contact with it in the first place. This is a multi-approach, multi-people, multi-sector, multi‑ministry approach that must happen to ensure that Indigenous people have what they need in order to be self-determining.
We know all the historical legacies that have led us to this situation, but we, at the same time, have to acknowledge the contemporary realities that we face as Indigenous people in this country that continue to put us at the negative end of every socio-economic indicator.
Our justice strategy calls for an increase in sections 81 and 84. We’re there for that. We have Indigenous-led models, such as Kwìkwèxwelhp Healing Village in Sts’ailes territory, which is out around Chilliwack, for those who may not know where that is.
Our strategy envisions new land-based pilots and Indigenous‑led healing lodges as well. We support all these processes. “Kwìkwèxwelhp” means “a place where we gather medicine,” which is a place where we can gather healing and provide people with what they need to heal and to move on their own path of self-determination.
This bill supports the path of reconciliation and justice transformation that is absolutely vital. We need to lessen the harm that Indigenous Peoples are grossly disproportionately feeling every day in every institution in this country, as we know, in Canada’s long history.
The passing of Bill S-205 is an essential step toward reconciliation and toward a more just and safe future. There is no question that we want you to support this bill. It recognizes the need for judicial oversight for any isolation beyond 48 hours. It ensures remedies are accessible and effective when unlawful conditions occur. It aligns with federal correction reform and our BC First Nations Justice Strategy as well as our Indigenous Women’s Justice Strategy, which is our strategy 11, and, of course, with Canada’s new national Indigenous Justice Strategy. It continues to strengthen federal collaboration with First Nations and Indigenous organizations.
We know exactly what needs to happen. We have enough evidence to show what needs to happen. We have organizations and governments at various levels wanting to do this work, but we must do this work together. We must do this in a bold and courageous way, and we must ensure that we actually involve and include Indigenous Peoples. I know our justice strategy has been around since March 2020. It was developed in partnership with the provincial and federal governments in a way that hadn’t happened before. I’m very proud of what we’ve accomplished so far, establishing 15 justice centres as well as a virtual one, eliminating the backlog of Gladue.
We can go on about all the things we have done, but what we know absolutely, 100% — and I’m happy to provide you with the stories and evidence — that we have, because we have taken a different approach to justice, been changing lives, saving lives and saving the system money. Passage of this bill will also lead to that, assuming that, once passed, we authentically engage together in bold and courageous conversations to make sure that this is actioned.
An example that I often use is that we have a beautiful Charter of Rights and Freedoms. My background is in law. I practise criminal defence. We have an absolutely stunning Charter. It’s one of the greatest things in the world in terms of law and in terms of the protection of rights, but who in this room is free from discrimination? Has anyone in this room been free from discrimination?
This is our problem. We have great laws, great policies and great procedures, but we have to take the next step and truly, fundamentally, authentically engage in actioning this work. We must ensure that there are measurable outcomes as well as metrics and accountability to make sure that everyone is doing their part. It is something that all of us must do. Every one of us in this room has a responsibility to do that and recognize, particularly when it comes to Indigenous Peoples, this is multifaceted. We have to deal with health. We have to deal with justice. We have to deal with education, housing and all of these things.
Thank you for your time. I really appreciate the opportunity.
The Chair: Thank you to each of the witnesses for their opening remarks. They really set the context for discussion here. We will now move to questions from senators.
Senator Batters: Thank you. What a powerful panel. Thank you all for being here — for taking the time to come all the way here in person. It’s very much appreciated. It is especially wonderful to see people from my home province of Saskatchewan, so welcome to you. Kory Wilson, you fit right in because you’re wearing Saskatchewan Roughriders green. Very well done.
This is a really important perspective, and you each brought a number of different angles to it. I would like to ask my first question to Vice Chief Tsannie.
Bill S-205, as Ms. Wilson stated very powerfully here today, reiterates that 96% of the people in these units are Indigenous. Bill S-205 changes the heading of one section to “Indigenous and Marginalized Populations.” It expands it from just “Indigenous.” It also introduces a broad new definition of “disadvantaged or minority population.” That quite drastically expands it.
Since sections 79, 81 and 84 were originally designed to address injustices specific to Indigenous Peoples, and especially given the large percentage of people this impacts are Indigenous, do you have concerns that expansion in this bill could dilute the original Indigenous focus of these provisions?
Mr. Tsannie: I don’t know if I’m in the right situation, but I speak about Joey because Joey is in the institution, despite the calls from his community to get him back into that community. It seems our people are continually getting stuck in the system. The autonomy of our leadership and our communities — I truly believe that the community and the leadership have that autonomy over their members.
In terms of sections 81 and 84, the intent of those is to determine if people — for example, Joey — can go into a facility. It should be up to those facilities to determine if that’s the right fit for Joey, along with the leadership and the community.
In terms of diluting, I believe that people should be treated like humans. I believe in people’s health and well-being, despite the circumstances and the situations they’re in. I worked with Harold Johnson. When one person hurts another, we use the justice system to hurt them back. What does that accomplish?
Healing and trying to support the needs of our communities and our members are much more important to me than trying to use the justice system to hurt people.
Senator Batters: Thank you.
Maybe I could ask for Ms. Wilson’s perspective on that. The purpose of the Senate is to ensure that when we have bills that come before us, we’re properly making sure they are as strong as they can possibly be, especially given the focus that originally existed. That is now different because of this one section.
What is your perspective on that? Are you concerned that it could dilute things, especially given the very important point that you reiterated?
Ms. Wilson: I would certainly never advocate for people to be disadvantaged, and all disadvantaged people deserve to be supported and given the tools and the skills they need to be self-determining.
I think this is a common practice. When something is aimed or targeted at specifically helping and supporting Indigenous Peoples, others get lumped into that. I’m not saying that is inherently wrong, but there has to be, first and foremost, recognition — which could be built into this — that the issues and challenges facing Indigenous people originate differently than those of non-Indigenous people. For example, I have a status card in my wallet that I have to show during certain periods of time that no other disadvantaged group has to do. I had to get a letter from Indigenous Services Canada, or ISC, in order to have CRA actually begin filing my taxes for 2024. Did anyone else have to do that? No. Of course, these are very privileged problems; I recognize that as well.
The reality is that the ways to solve these problems — what works for Indigenous people often works for other people as well. That separation doesn’t necessarily happen. Perhaps the way it manifests or the way it’s applied is different, but what has to be recognized, first and foremost, is that the origins of the challenges Indigenous people face are fundamentally different and must be addressed as such. It’s almost as if there have to be two paths. Though the solution may be somewhat the same, we can’t lose sight of that because what happens, whether it’s in health care, justice or education — and I have experience in all of those areas — is people take the path of least resistance. It’s easier to support 2SLGBTQIA+ people, or it’s easier to support — for example, we use something called an IDEAS lens, with “Indigenous” being the “I,” and then “Diversity,” “Equity,” “Access” and “Sustainability.” It’s easier to address sustainability initiatives and not do anything with Indigenous ones.
There have to be checks and balances in there to ensure that Indigenous people, or those most harmed — which are Indigenous people — are still first and foremost. Again, this is not done by disadvantaging others, but we can’t lose sight of that because people have a tendency to take the easy route.
Senator Batters: Thank you very much.
Senator Miville-Dechêne: Thank you for being here.
Bill S-205 authorizes community groups working for poorer populations to deliver correctional services.
I have a simple question: Do you have enough resources to take on the task? What would you need more of? Please expand a bit on this. Maybe we can hear from Ms. Wilson and Mr. Thomas.
Mr. Thomas: In response to the previous question, Circle of Eagles believes that we should keep sections 81 and 84 specifically for Indigenous people, first and foremost, because otherwise it does dilute them. We know that when we’re asking for funds through our Indigenous organizations, we don’t get them because we don’t do the same lobbying and so on that other national groups are able to. Indigenous communities are disadvantaged already if they’re going to open it up further. We oppose that part of the law.
In terms of other groups getting involved, we know that the original intent of sections 81 and 84, in my understanding, is that they were for Indigenous people, and we should be focusing on those folks first. If we start to include BIPOC into this, I think it dilutes the whole process. We don’t agree with that part of the law, but there are other parts that we do agree with.
Senator Miville-Dechêne: Do you want me to repeat the question?
Ms. Wilson: I’m okay. Definitely, there is not enough money. There is no question that there is not enough money, and we will always advocate. We do have some examples of healing lodges, but the reason others don’t exist is because there isn’t enough funding or organization. We also have to recognize that, at the same time, there are mechanisms, abilities and policies that currently exist that aren’t being maximized. Yes, we want more resources, but we also have to maximize and use as effectively and efficiently as possible all of the resources that currently exist and that are at our disposal.
For example, there is no reason diversion can’t apply equally to non-Indigenous people and Indigenous people, but it simply does not. A Crown prosecutor or a police officer currently has options existing under legislation to be able to move in that direction.
And, again, I’m never going to say, “Don’t give me money.” Give us money — yes, absolutely — but every character and actor who is involved in the system needs to ensure that they are looking at this work in a way that does not disproportionately affect Indigenous people and needs to use all of the tools in their tool box. There is a full tool box there. I would advocate, obviously, to add more tools, but there is a full tool box there that many of the actors and players in the current system never use. Let’s also do that. Let’s require that. Let’s mark that. Let’s track that and recognize that we can do this.
There are things we can do. Not having enough money is not the only reason we can’t do it. It has to be mandated, made to happen and viewed as an actual priority that has legs, not just a photo op that somebody does and so on. We need to actually action it.
Senator Prosper: Thank you to the witnesses for being here and sharing your stories with us.
Mr. Thomas, you talked about your organization assisting many in returning home in a safe manner. You speak of land‑based healing, Elders, Sweat Lodges, Pipe Ceremonies, Sacred Fires and how your practices are grounded within the protocols of Elders.
Ms. Wilson, you speak about the transformation of the justice system, and you just spoke about a full tool box. You also mentioned you know what works because you have the proof.
I am wondering if each of you can share a story with the committee in terms of how that Indigenous element, grounded in culture, tradition and knowledge, provides a mechanism for those coming out of the correctional system and offers a viable alternative for them other than what exists.
Maybe Mr. Thomas, then Mr. Tsannie and then you, Ms. Wilson. Thank you.
Mr. Thomas: I want to share a story about a young man who just recently came through our program. He was a former gang member. He was an enforcer. His job was to collect funds from folks. He was part of a gang.
He got his leg shot off when he went to go get some money. He was in the Prairies, and he was sent to B.C. We started working with him on a section 84. He came out with us, and he went to one of our programs — Camp Potlatch, we call it. It’s a four-day healing retreat, and they do all the ceremonies. They do morning spirit baths. We do traditional workshops. We go out in the canoe. They enter the Sweat Lodge, and we have healing circles.
Part of what I witnessed with him was him going through the process. At one part, we have a letting-go ceremony. The work and the change that I saw and witnessed in him, from where he was and his desire to make changes in his life, were profound. His is just one example of these stories.
Today, he is living on his own. We are continuing to support him. As soon as they leave Correctional Service Canada, we don’t stop supporting. We have access to some programs where he is going to employment training. We’re helping support him in his journey to get his counselling certificate, because he wants to help others who want to leave the gangs they way he did.
He is just one example. There have been so many others where people have made dramatic changes in their lives. They come to us sometimes with a lot of hurt and anger, especially those who have been in segregation for a long time. There are brothers talking to us, and we tell them, “You have left your spirit inside that institution. You need to call your spirit back,” because it was almost as if he was longing to go back to the place that hurt him. We had to do ceremonies for him to get his spirit back. There is a lot of healing that occurs in our work.
We provide services for those the system calls the most dangerous offenders, and they do well in our facilities. We help them. You would not recognize them now. They are leaders in our communities now. We have been doing this for over 55 years. They are leaders in our communities, and this does work.
Mr. Tsannie: Senator, thank you for the opportunity.
I have to tell my story in order for you to understand where I come from in our Indigenous community. My grandpa grew up on the land, following the caribou herds up to within 100 kilometres of Baker Lake. In those territories, he used to go to Churchill, Manitoba, by dog team for months at a time to sell his fur, which is what built Canada. My dad was born on Sunrise Lake by the Manitoba border in northern Saskatchewan.
I need to eat my traditional food. I need to eat the fish and the caribou that we were raised on. If I go a week without it, I feel it.
I have to speak about Joey. That is so important, because Joey is still alive at Kent Institution right now. Since I started visiting Joey, I have been feeding him dried caribou meat. I wasn’t allowed to go in, so I reached out to the minister to say that I need to have access to Joey, and I need to bring him some caribou meat.
He has spent 20 years inside, and none of his family members have visited him in 20 years. I brought him some dry meat, and he ate the whole bag of dry meat while I was sitting with him. That was in October.
Then I came back during his parole hearing. We cooked a caribou stew. He ate caribou stew, and I gave him more dry meat. Then I visited him again last week — I was just there — and I gave him more dry meat. He is starting to look human. He isn’t pale. He is starting to get his colour. He is starting to get his spirit back.
If you are not connected to the food and to the people and to the Elders, I just don’t know — to me, CSC has failed. We gave them a plan. They told us our plan was not good enough, that their plan of torturing our people is better than our plan of trying to help, feeding them the traditional food and having access to our Elders and the teachings. That is what Joey needs.
People make mistakes — bad mistakes — but they are still human. They don’t need to be treated like that or to be tortured like that. Access to food, culture and spiritual teachings is very important.
We have a men’s healing lodge at the grand council, section 81, on the Wahpeton Dakota Reserve. I make sure that I drop off moose meat and caribou meat there, and I enter their cabins there. I visit with the people who are there. They are excited to go get wood for the Elders, to deliver wood to the Elders at nearby First Nations.
These are just some of the things that I think that we have to put effort into our facilities. It is like having a plant. You need to water it and give it the right nutrients. That’s what our people need. Right now they are in there, and they are not getting what their spirits need.
For you to understand, you have to live it. I understand, because I need my food and the energy to live. Going a week without it is very hard. And the fish that you eat, the dry fish and everything that comes with it — some of it, we eat it raw. That is what our spirits need. We need to be grounded.
I wanted to share that. Thank you.
Ms. Wilson: I will quickly add that I think what we’re hearing is an Indigenous way of being is supporting the whole person, meeting the person where they are and providing them with what they need in order to come alive again and to be bright — whether that is food, whether that is education, whether that is health, whether that is self-esteem, whether it is all of those things and Indigenous ways.
In our community, if somebody does something wrong, the Elders will say, “Who didn’t teach them right?” Somebody didn’t teach them right. Our job is to teach them right and to help them find that balance again. We need to move toward balance.
We have a number of stories, but there is not enough time now. But there are three people who committed something: They are working with our Justice Council and Justice Centre. They did not get criminal records and did not go to jail, which means their children didn’t go into care and they could still hold a job.
We have the first pre-charge diversion centre in Canada. We have already had, I believe, 29 people who have gone through and who have not gone back into the system.
Again, all of those things are done by supporting and meeting the individual where they are and providing them with what they need in order to succeed, which is Indigenous ways of knowing and being and recognizing that they are applied to the individual. We have vast differences in cultures, and everybody needs something different. Some people need to be on the land, need to be alone, need to chop that wood and go into a Sweat Lodge.
Some people in my territory need to go out onto the islands by themselves, be there for a while and spend some time on our beautiful land on the northwest coast of British Columbia. So it is very different. Some people who are still connecting to whom they are and need extensive counselling, training and support for those types of things.
There’s no question that there are a multitude of Indigenous‑led solutions out there. Certainly, I know our justice strategy can be scaled, multiplied and applied across the country. I’m not saying that we will tell you how to do it or dictate it; not at all. But nobody needs to reinvent the wheel here. Together we’re stronger, and we need to work together to right these wrongs of the past.
Senator Prosper: Thanks for all that you do.
Senator Simons: I will let Senator Pate take my place. She is the sponsor of the bill.
Senator Pate: Thank you all for being here and for all you do.
I want to come back to the issue of section 81 and its application to others. That started was when we did the human rights study of federally sentenced persons. I say “we” because I was involved in this, then I was involved in supporting former Senator Josée Forest-Niesing with the bill.
So, 25 years after the act was passed, what we have heard all across the country is corrections has limited the ability to apply section 81. We heard that, at the time that was put in, Indigenous people were the fastest-growing prison population. Now there are other groups growing fast too.
There was a real push by many, including a number of Indigenous leaders, to say we should have this apply, but that the biggest focus is if a community — whether it is Circle of Eagles, Chief Tsannie, the BC First Nations Justice Council — goes to the minister or corrections and says, just as you have done with Joey, “We want this person home.” Then the responsibility flips. Corrections don’t have what they have now, which is the authority to say, “No, we’re not doing it.” They have to establish why it is not going to work.
It is fundamentally different from how things operate now. In many discussions that I have been having with people, it seems to be influenced by the way corrections already run things. The fact is that, even with the minister intervening, many organizations are being told, “Don’t talk about that. Don’t support the law.”
I’m really concerned. There is an opportunity here to take resources that currently corrections spends — more than $500,000 a year to keep people in segregated conditions, versus $60,000 or $70,000 for a lodge. That is what needs to be corrected: those resources. If you were given even half of that, $250,000 per person, what could you provide in each of your resources, starting with you, Ms. Wilson?
Ms. Wilson: The example you bring up is exactly what I am saying. It is a tool in the tool box that is not being utilized. Why aren’t we using it? It doesn’t make sense at all. It is because of, as you say, these long-established practices. Just because we make people fit into a box, it does not mean that the box is right.
We need to get rid of the boxes and get rid of this understanding of what complex needs are. Complex needs mean they do not fit into the box. Who designed the box? Again, we need to have bold and courageous conversations. That $250,000 a year would literally pay somebody’s rent, even in Vancouver, for an entire year. It would pay for counselling for an entire year. It would pay for an auntie and resource workers we have. It would pay their salaries to allow them to visit a person and check in with them on a frequent basis, to say nothing of education.
Many incarcerated people are also from the child welfare system, which gets free tuition in British Columbia. They could go to school. I work too at the British Columbia Institute of Technology, or BCIT. We have fantastic programs for Indigenous people. So again those three people that I said — one was a woman — we saved the system $500,000 already. Men are $246,000. So we already saved the system $1 million, just in this one year, and that doesn’t include the ancillary costs of their children going into care, court costs, parole costs and all of those things.
It is ludicrous to me that we, as bright, talented and brilliant as everybody in the system is, can’t sit in a room and have these conversations.
Yes, it may be a tremendous amount of work to start, to get this moving and to get this going, but we have to do it because we all want safer, healthier, happier communities. We all want our tax dollars to go to initiatives that will truly elevate and support our communities, our provinces, our nations and our country.
Mr. Thomas: For us, that is one example. Just the fact that our healing lodges are underfunded, and we should be expecting things to be equitable — if they are paying $500,000 inside, we should be receiving $500,000 outside. It should not always be Indigenous people at the expense of Indigenous people. We are the only people who have to go to court to get clean water. I do not understand.
It seems that we are always expected to do as much with less. It doesn’t make sense to me. You are taking our children away and giving non-Indigenous folks more money. You are incarcerating us at higher rates and expecting us to do the same amount of work as our counterparts. We’re given less to do more. I think it is time for equitable funding. It should be dollar‑for-dollar equal access and not at our expense. That is the only way that is going to work.
Senator Pate: That sounds like a great challenge: to go and find someone in SIU right now, develop a plan around that and demand resources.
Mr. Thomas: We have already offered to take Joey. All we’re asking for is one staff person, right? And we could not even get that.
Mr. Tsannie: I want to add that with these negotiations that are happening, the middle person is always CSC. We’re kind of done with dealing with CSC. We want those negotiations directly with the minister, the nations, our communities and our organizations to happen. We talk so much about the tool box. Many of the people who are in this system do not know how to use some of these tools.
The resources that should be going directly to help people are not reaching people. They are going somewhere else. I want to make that clear. Funding for these institutions needs to be what Merv is saying; it needs to be fair — not only fair but based on needs. We look to the North, the high cost of delivering some of these services, especially in the far North. It has to be based on the needs of that individual. On funding, that negotiation has to be directly with the minister and the organization. Nation to nation — that is how it should be. There shouldn’t be any middle person in there.
The Chair: Thank you to the witnesses. This was very compelling testimony. This forum is not suited to having a full discussion, but I can say that your evidence is very important to the study that is ongoing. We appreciate you coming such a great distance to assist us in this understanding.
I believe that the stories that you have told will have a compelling effect on the senators. The good work that has been done in the healing lodges that you represent needs to be recognized and understood in a much better way so that this kind of investment can be made in communities.
Thank you for your testimony here today. If there is anything you would like to add that you think we have not heard that would be helpful, that can be done by sending a memo or letter to the clerk, who will give it to all the senators on the committee.
Thank you, senators. I erred on the side of making sure the witnesses had full time to discuss and tell their stories in a way that would have an effect on not only our heads but our hearts.
Honourable senators, as we continue our study of Bill S-205, our second panel is with us. We have Paula Marshall, Executive Director, Mi’kmaw Legal Support Network, attending by video conference; and we also have Bonnie Brayton, Chief Executive Officer, DisAbled Women’s Network of Canada, who is with us in the committee room.
We welcome you and thank you for joining us here today. We will begin with your opening remarks. We will start with Ms. Marshall. I would like to see the remarks kept to about five minutes so that we have a lot of time for questions from the senators.
Paula Marshall, Executive Director, Mi’kmaw Legal Support Network: Thank you, chair and senators, for inviting me to speak today.
My name is Paula Marshall. I’m from Nova Scotia, and I am Mi’kmaw from Eskasoni First Nation. My husband and I have raised 12 children, 11 sons and 1 daughter, and we’re in the process of adopting number 13.
I want to talk to you today about Bill S-205 from the perspective of Indigenous people in federal prisons.
When we talk about law, we cannot ignore the basic fact, which was raised by the previous presenters, that Indigenous people make up one third of the prison population. And these numbers keep going up. The real question for me is simple: Will Bill S-205 reduce harm for Indigenous people or continue the patterns that have been harming us for decades?
Speaking to the structured intervention units, which replace what used to be called “segregation,” “seg” or “solitary confinement” — on paper, they’re supposed to be different. People are supposed to get four hours out of their cell and two hours of meaningful human contact, but we have to be honest: When one is separated from the mainstream population, isolated and closely controlled, it still feels like isolation. And Indigenous people, as we heard from the previous presenters, are more likely to end up there. I believe they are 44% of men who end up in SIUs and 96% of women.
As Indigenous people, we are more likely to be labelled “maximum security.” It’s very rare when someone gets placed in minimum. We’re more likely to be seen as not adjusting well. We’re more likely to be involved in use-of-force incidents, and I want to talk about why this happens.
Many Indigenous people in prison have deep trauma histories — residential schools, child welfare removal, family violence, poverty, addiction and mental health struggles rooted in colonial harm. We’ve heard this over and over again.
Trauma shows up in certain ways. It can look like anger. It can look like shutting down. It can look like mistrust. It can look like self-harm. Inside prison, those trauma responses are often treated as risk, and when they’re treated as risk, the response has been more control, more restrictions and sometimes even SIU placements.
So we get this cycle — trauma, reaction, isolation, more trauma, more restrictions — and that cycle hits our Indigenous prisoners extra hard. Isolation doesn’t heal trauma. It makes it worse. For those whose communities already struggle with high suicide rates and intergenerational grief, that matters.
What do we need to change? I support the strengthening of the definition of “SIU” so that prisons can’t create isolation under different names. If it functions like isolation, it should be regulated like isolation. The 48-hour limit before court review is important, but I would encourage the committee to ensure that when SIU placements are reviewed, that Gladue factors are considered, trauma history is considered and alternatives are truly explored.
Isolation should not be the default response to trauma-based behaviour. There should also be transparency. If Indigenous people are disproportionately placed in SIUs, we need that data publicly reported. Without transparency, problems could stay hidden.
Another important part of this bill is the proposal to transfer people with serious mental health conditions to hospitals or proper mental health facilities. This is critical. Too often, we see that mental health crises in prison are treated as discipline problems. Someone self-harms or becomes emotionally overwhelmed. The response is the use of force and isolation. That’s not treatment. That’s escalation.
Indigenous communities already carry heavy mental burdens because of colonial history. We should not be deepening that harm while inside prison, and it’s important to say this clearly. Isolation and maximum security are expensive, which we’ve heard our other presenters talk about. Treatment is not only more humane, but also costs less in the long run. And if we treat the trauma instead of just punishing the symptoms, we will reduce long-term harm.
I want to talk a little about section 81 and section 84 of the Corrections and Conditional Release Act. In Atlantic Canada, there were no section 81 facilities. If a person is looking for support in health and reintegration back into the community, they will have to leave the province and attend another nation’s ceremonies and cultures.
These sections were supposed to help reduce Indigenous overrepresentation and over-incarceration. Section 81 allows for Indigenous communities to run healing lodges, but that application process is very difficult. We applied for a section 81 for women, and we were turned down because our training for our staff was going to be coming from the Elizabeth Fry Society.
When we talk about section 84, we ran a program from 2005 to 2019. We ran about two to five section 84 circles per year and of all those recommendations of pooling the community’s resources together to come up with a plan for reintegration for supporting community, which depends on full parole because there were no halfway houses inside the community — the Parole Board said that the section 84 plans were great, but they were still going to give the person day parole, which is outside the community. There were no opportunities to bring that section 84 plan back once they were released into halfway houses.
Section 81 exists because of nation-to-nation relationship between Indigenous Peoples and the Crown. It was meant to address over-incarceration. Right now, it’s underfunded and underused. My concern in hearing the previous discussion is that if we expand it before fixing those issues, Indigenous communities could even lose more access to already limited resources.
I would suggest creating separate provisions for other groups rather than expanding section 81 and 84 for other communities.
The Chair: Could you wrap up, please? I’d like to have an opportunity for the senators to ask as many questions as they have. And just from your testimony, I know they have a lot of questions.
Ms. Marshall: Thank you. Also, I want to talk about allowing incarcerated people to apply to the court if Correctional Service Canada acts unlawfully. People in prison have very limited access to help, and internal grievances often fail, so judicial oversight helps to bring that transparency.
In closing, I would like to say that Indigenous overrepresentation in prison didn’t happen by accident. It’s a result of generations of policy choices. Bill S-205 can be a part of those choices, but only if it’s implemented with intention. If we regulate SIUs properly, treat trauma medically instead of disciplinarily, properly fund Indigenous-led alternatives and make self-determination real and not symbolic, then this bill can reduce harm. If not, then the risk of continuing the same patterns under new language will occur. The true measure of success will be fewer Indigenous people in isolation, more Indigenous people healing in the communities and more accountability with dignity. Thank you, and I welcome your questions.
The Chair: Thank you.
Ms. Brayton, if you can keep your comments to about five minutes, that would be really helpful. Thank you.
Bonnie Brayton, Chief Executive Officer, DisAbled Women’s Network of Canada: I will do my best. If I don’t get to my recommendations, I hope one of the senators will ask for them after.
The DisAbled Women’s Network of Canada, or DAWN Canada, is the oldest organization for women with disabilities in the world. At 40 years old, we are very proud to be here. First, I want to thank Senator Pate for advancing this very important legislation and the committee for inviting us to speak to you today. I’m pleased to be here with you on the unceded territory of the Algonquin Anishinaabeg.
Tona Mills, in my original speaking notes, is and was, as I understand it — because the last time I spoke to Senator Pate, she was alive — an Indigenous woman who spent over 10 years in solitary confinement in federal custody, primarily due to mental health issues. She was diagnosed with isolation-induced schizophrenia after her prolonged isolation.
Thank you, senators, for the opportunity to speak to Bill S-205. My comments draw on a recent literature review DAWN Canada completed as part of our work in developing new standards under the Accessible Canada Act for Correctional Service Canada, examining the experiences of Indigenous and Black women and gender-diverse people with disabilities in the Canadian correctional system. The evidence is unequivocal: Solitary confinement and other forms of isolation disproportionately harm those who are already the most marginalized, as your bill recognizes, Senator Pate.
Our research confirms this. Indigenous women represent at least 42% of all federally incarcerated women, despite being about 5% of the population. As the review states, these women show higher levels of substance abuse and mental health issues.
Black women are also overrepresented, although the lack of disaggregated data makes their experiences less visible, which is a problem in itself.
Disability is a major driver of this overrepresentation. Nearly all federally sentenced Indigenous women have a diagnosed or undiagnosed mental-health-related disability, and many Black women experience trauma, chronic illness, intellectual disabilities or brain injuries that go unrecognized.
Yet prisons are structurally incapable of meeting these needs. The literature notes that “women living with disabilities are frequently placed in isolation, not due to any proven risk but because they are misunderstood by undertrained correctional staff.”
This is where Bill S-205 is the most responsive. The 48-hour limit on isolation, combined with mandatory judicial oversight, is not simply a procedural safeguard; it is a human rights protection. For Indigenous and Black women whose behaviours are often trauma-driven or disability-related, isolation is routinely used as a substitute for care. The bill’s recognition that irreversible harm can occur after 48 hours aligns with the evidence and with international standards.
The bill’s second major contribution is its requirement for mental health assessments and mandatory transfers to hospitals when CSC cannot provide appropriate care. This is essential. We heard so much about this from our first panel. The literature shows that penitentiaries lack the capacity, resources and infrastructure required to meet the needs of their populations. When women with disabilities are kept in prisons that cannot accommodate them, the result is predictable: deterioration, self‑harm and further isolation.
Need I remind this committee of Ashley Smith’s tragic death?
The third pillar, expanding section 81 and section 84 agreements, is equally important. Indigenous women have long advocated for healing-based, community-led alternatives. Black women, too, have expressed deep distrust of institutional mental health services and a need for culturally grounded supports. By allowing agreements with organizations serving disadvantaged or minority populations, the bill opens the door to Black-led, disability-led and 2SLGBTQIA+-led community supports, in addition to priority for Indigenous community supports. This is a meaningful step toward culturally safe reintegration.
Finally, the bill’s creation of a judicial remedy for unlawful or discriminatory administration of a sentence is a powerful accountability tool. Indigenous and Black women routinely experience misclassification, cancelled visits, micro-aggressions and punitive responses to disability-related behaviours. A mechanism allowing courts to reduce a sentence when CSC’s actions are oppressive or discriminatory is a necessary corrective.
However, there are gaps that deserve attention. First, the bill focuses narrowly on disabling mental health issues. Disability is broader. Women with physical, sensory and intellectual disabilities, including brain injuries, like the Indigenous woman forced to sleep on the floor because her cell was not wheelchair accessible — that is from our literature review and the evidence — are equally harmed by isolation and inaccessible environments. The Accessible Canada Act defines “disability” holistically; this bill should do the same.
Second, gender is not explicitly named. The literature shows that Indigenous and Black women face unique, gendered pathways into criminalization, often rooted in colonization, poverty and violence. Their experiences of isolation are not interchangeable with those of men. Explicit recognition would strengthen the bill’s grounding in lived reality.
Third, accessibility obligations are not clearly imposed on CSC. Without explicit requirements, women with disabilities may still be placed in inaccessible SIUs or denied participation in programs.
Finally, most incarcerated women are in provincial custody. While this bill applies federally, the committee should strongly recommend that provinces adopt parallel protections.
In closing, Bill S-205 is a significant and necessary step. It aligns with the evidence, responds to long-standing human rights concerns and offers meaningful pathways to care, community and accountability. Strengthening it through an intersectional, disability-inclusive lens will ensure it protects those who are most affected by isolation: Indigenous and Black women and gender-diverse people living with disabilities.
Do I still have time?
The Chair: No.
Ms. Brayton: I’ve summarized. Thank you.
The Chair: I know, but I am sure some of the senators will ask you about your recommendations.
Senator Batters: Yes, I wanted to give you additional time to do that.
First, thank you to both of you for being here and helping us with your important Indigenous perspective on this bill. Also, Ms. Brayton, thank you for the four decades of work of your organization on this important matter. I think of all the times that your organization has provided us with very valuable perspectives, especially on the issue of assisted suicide, for so many years. Thank you for all of your work on those issues.
But, yes, I want to use the balance of my time to give you additional time to talk about recommendations and ways that this bill could be strengthened.
Ms. Brayton: I have provided a bulleted summary of the four pieces of the legislation.
The first regards limiting isolation with respect to the 48-hour cap and judicial oversight: Require CSC to demonstrate that disability-related needs were assessed and accommodated before any isolation is authorized. Mandate disaggregated reporting on SIU placements by race, Indigeneity, gender and disability. Explicitly prohibit the use of isolation as a response to self-harm, trauma responses or disability-related behaviours.
The second regards mental health assessments and mandatory hospital transfers: Expand the definition of “disability” beyond “disabling mental health issues” to include physical, sensory, intellectual, cognitive and psychosocial disabilities. Require culturally adapted assessment tools for Indigenous and Black women. Ensure transfers include access to trauma-informed, culturally safe care.
The third regards expanded section 81 and section 84 agreements with respect to community-based alternatives: Set targets for agreements with first Indigenous, then Black, disability and 2SLGBTQIA+ organizations. Provide stable federal funding for community-based partners. Require CSC to document and publicly report efforts to identify eligible community organizations. They can’t just sit there and not do it; they have to do it, and if they don’t, they have to be called out.
The fourth regards judicial remedies for discriminatory administration of sentences: Ensure legal aid funding so that marginalized women can access this remedy. Require courts to consider systemic racism, colonization and disability when assessing whether CSC’s actions were oppressive or discriminatory. Mandate public reporting on the use and outcomes of these applications.
Senator Batters: Thank you.
Senator Miville-Dechêne: In the last panel, some Indigenous people said that we shouldn’t open this bill to other marginalized populations. You’re speaking here for disabled people. What do you think?
Ms. Brayton: The rate of disability among Indigenous women is about 40%. It’s higher than it is for White women. It’s about the highest that you could imagine.
I really appreciated the way the other panellists spoke to this issue. I completely understand why we start with Indigenous people.
However, I think DAWN Canada comes at our work from an intersectional perspective, and that means we’re always talking about who’s at the margins.
I don’t want to take anything away from the priority for Indigenous people, but I do think it’s quite clear, again, that when we want to interpret who we are talking about, it’s important to understand that 40% of Indigenous women live with a disability, and that’s a broad range of disabilities.
Senator Miville-Dechêne: How could those inmates be helped with community groups? We’re talking about women who are suffering a lot and perhaps in need of acute care. The bill says they can be transferred to community resources. What do you think of that?
Ms. Brayton: The opportunity to be supported by your community, particularly for Black and Indigenous women, becomes quite important. We’re talking about cultural safety and another layer of need to be considered.
Again, I mentioned we’re doing this research to develop new standards for prisons. One of the things we know — from other work DAWN Canada has done — is how important peer support is to anyone who is at the margins. Linking the community connection to what it really represents, which is to be with your peers and your people, is the point I’d stand on there.
As I said, there are a lot of different areas we have to look at, but starting with these changes in the legislation and seeing from there how this will evolve, in consultation with communities who are most affected, is the best way forward.
Senator Prosper: Thank you so much to the witnesses. It’s good to see you again, Ms. Marshall.
Ms. Marshall: Thank you.
Senator Prosper: By the way, I love your glasses. I have a question for you, Ms. Marshall. You provided testimony on a term you note, “deep trauma,” from your experience and your work, noting, in part, colonial history, residential schools and a number of other factors that contribute to that term “deep trauma.” You also got into words like “transparency.” Of particular note, there is something that you mentioned I’d like you to expand upon, if you don’t mind. You referenced accountability with dignity. I’m hoping you can further elaborate on what that means, from your perspective. Thank you.
Ms. Marshall: Thank you.
When we talk about transparency, we don’t have a lot of access to information on how many Indigenous people are in the SIU units. We have some general statistics, but we’re not able to see exactly the impact that they had on those individuals.
If we want to do it with dignity, we really need to investigate individually what that impact was and how we can help humanize the process. Right now, they say 15 days is equivalent to torture. How many of our people have suffered that? How do we maintain dignity and support with what the SIUs were intended for, providing that we still have humanity for people in those units?
Senator Prosper: Thank you.
[Translation]
Senator Oudar: First of all, thank you both. I think that today, we’re seeing some angles that are very relevant to our work. I’m pleased to have your expertise, both of you. I had some questions specifically about legal representation by counsel within 48 hours. In clause 5 of the bill, at section 33, it says that there is a 48-hour limit for placement in a structured intervention unit without judicial authorization.
However, for the judicial oversight provided for in section 33 to be effective, the detainee must be able to be represented by counsel before the Superior Court.
We know that the majority of people incarcerated in federal penitentiaries don’t have the means to retain a lawyer. Institutions are often far away from urban centres. Correctional legal aid varies considerably from province to province. I’d like to hear what you have to say about the precedents in our legislation, for example, the Youth Criminal Justice Act or the Criminal Code, which, in section 46.3, provides for the ex officio designation of a lawyer when a person’s liberty is at stake. Bill S-205 does not include a similar provision.
How can we guarantee people access to legal counsel in these circumstances, within the 48-hour period provided for in section 33 of clause 5? How can this right be applied to inmates who are in more vulnerable situations, as you both mentioned? How can we specifically ensure that they are better protected in the bill?
Ms. Brayton: Thank you for the question. In fact, in my recommendations, I emphasized the importance of having representation by counsel. I very much appreciate you mentioning that it is not yet clear in this bill. I completely agree that this is an aspect of this that must be addressed, precisely because the possibility of having legal counsel, as you mentioned, is virtually impossible for some people. That leaves them in a situation where their rights are not protected. Apart from that, I agree with you that it’s important and that it’s an aspect of this legislation that needs to be addressed. Thank you again for the question.
Senator Oudar: Thank you for that. Ms. Marshall, did you hear that correctly?
The question I asked earlier was about the application of clause 5 of the bill, which provides in section 33 a 48-hour limit for placement in a structured intervention unit without judicial authorization. In Bill S-205, unlike other precedents in our body of law, there is no provision for the ex officio designation of counsel when a person’s liberty is at stake. I’d like to hear your thoughts on that.
How can the detained person be assured that they can have access to a lawyer within 48 hours, and how can that become an accessible practice for the most vulnerable inmates in the situations you have described today?
[English]
Ms. Marshall: Thank you. From what I understand, the group that oversees legal counsel for those individuals is often short‑staffed, so access to legal counsel is even less possible in many cases because of that shortage.
We know that internal grievance systems often fail. Judicial oversight will help bring transparency. For Indigenous prisoners who are placed in restrictive environments, without that meaningful recourse, we have to have a safeguard essential. I’m not sure how that relates to the specifics of the act, but we should be able to maintain a fully staffed opportunity for people to get that legal help. Not having that is more restrictive and imposes on Indigenous Peoples than mainstream.
[Translation]
Senator Oudar: Thank you for your answer about assistance. My question was also about the legislative provisions that should or should not be in the bill. One of the recommendations, according to Ms. Brayton, is that it should be part of the act, as it is also found in the Youth Criminal Justice Act or in section 46.3 of the Criminal Code, that a person be entitled to the benefit of legal assistance, especially when dealing with populations and individuals who are in a situation of extreme vulnerability. It can become really essential to be able to count on someone’s presence to feel supported and assisted in their efforts.
I understand from your answer that there is also a question of resource availability, and I’m well aware of that, but do you think the act should contain amendments that should be enshrined?
[English]
Ms. Marshall: Yes, I agree that it should include provisions that implore the system to provide access to that legal counsel, such as in the Young Offenders Act. I don’t want it to be at the cost of the whole bill, but I think that would be something that could definitely be considered.
[Translation]
Senator Oudar: Thank you.
Ms. Brayton: I have a similar feeling. I agree, but I can’t delay this bill either. But I really appreciate that reflection.
[English]
Senator Pate: Thank you both for the many decades of work that each of you has done.
I would first like to hear more from you, Ms. Marshall. I recall the partnership that was attempted so that your organization could get a section 81 agreement. Can you talk more about the roadblocks that corrections put up? In that context, there was and remains a clear need. There was a great plan and partnership that, as I recall, you put forward.
The provisions that are now in clause 9, my read — though I am more interested in yours — is that once you put in the proposal, maybe 15 years ago, I do not recall an exact time, the responsibility then would have shifted to corrections to establish why you couldn’t do it, as opposed to just saying no and dictating.
Could you talk more about the roadblocks that were put up to you trying to provide that — maybe what they were and whether they continue? I am not up to speed on what has happened in the past decade.
Ms. Marshall: When we first approached the opportunity to submit a proposal, we went to our leadership at the Assembly of Nova Scotia Mi’kmaq Chiefs. We asked for their support in developing a model that would include the Elizabeth Fry Society of Cape Breton.
The model proposed that Elizabeth Fry would provide the location, training and building oversight with respect to security, the beds, et cetera, which we would rent from them.
When we submitted the proposal, we were turned away because they said if we were going to follow the idea of self‑determination, it would have to be only the Mi’kmaw Legal Support Network submitting the proposal without having a non‑Indigenous organization be so involved in it.
Unfortunately, we don’t have the experience that Elizabeth Fry has in maintaining and operating a correctional facility. They have halfway house beds. We would have heavily relied on their instruction, experience and training on how we would be able to do it.
In addition, when we went to the Assembly of Nova Scotia Mi’kmaq Chiefs, there wasn’t an agreement on which community should take responsibility for where the location would be held. Elizabeth Fry had a building that was not far from the Membertou location, where we could access Elders, opportunities for ceremonies, traditions and meaningful cultural experiences to be brought to the building.
They felt that it should have been on the community. We weren’t prepared at that time, logistically, to find a location in community, nor did we have the experience in operating and working with Correctional Service Canada to maintain what they were looking for.
We did resubmit it with less participation, but we could not eliminate Elizabeth Fry — we really needed their experience — and it still wasn’t accepted.
Currently, the Nova Scotia Native Women’s Association is looking to work again with Elizabeth Fry in the location they share in downtown Sydney to provide the possibility for bail beds, halfway house beds or a section 81. We haven’t given up on it yet.
There was also another application by Millbrook First Nation and one of the Crown attorneys of Nova Scotia and Elder Dale Sylliboy to provide a section 81 facility in the community of Millbrook. Far more details need to be worked out before they can submit the final proposal.
Senator Pate: If I may, my understanding was that the idea was that, no matter how the partnership worked, it would be self-governing in the sense that your organization or the community would take over.
Is there anything in Bill S-205 that you see that would interfere with your ability to develop the plans that you have in place or that Millbrook would like to develop?
Ms. Marshall: I don’t think so specifically because they are Correctional Service Canada regulated, unless it is changing the legislation in how or the role and providing more autonomy for the community to build, design and implement the section 81 facilities.
I’m not learned enough about the bill to specifically say what adaptations or changes could be made.
Senator Pate: In terms of the same issues for you in terms of work that you have been doing — I know it has often been in partnership. In fact, some of the first challenges to the use of segregation in prisons designated for women were done in partnership with DisAbled Women’s Network of Canada and the Native Women’s Association. Is there anything in this bill that you would see precluding the types of approaches that either Ms. Marshall or your organization would like to undertake for your particular group populations?
Ms. Brayton: Thank you, Senator Pate.
No. I met recently with a woman from the Nova Scotia Native Women’s Association at a conference in Montreal. It is nice to hear that you are working with them, Ms. Marshall.
This is a comprehensive piece of legislation. Senators have raised interesting and important questions. The most important pieces have been covered by this legislation. In DAWN Canada’s case, we don’t do direct service. For us, it is to focus on ensuring that the right community organizations for Indigenous, Black and other women from the community are provided.
In the example of a project that we’re working on right now — Elizabeth Fry is one of our partners in this work — we have been looking at some of the best practices, including peer support groups going on both inside and post-incarceration, and how important those are.
I don’t think that needs to be covered in the legislation, but the larger conversation we heard from the first panel and from Ms. Marshall — and I have heard it from other community members we work with — is to understand that connection is critical to healing and moving beyond the experience of correctional services, which in so many cases has been an unjust situation to begin with. Moving past that requires a lot of support but also understanding that it requires healing.
That might seem counterintuitive to people who see Correctional Service Canada as an appropriate response, but from our perspective, everything that is in here and many of the things discussed, particularly by our Indigenous colleagues, have been really important.
Senator Simons: First, Ms. Marshall, I have to say, as a Paula, I do not meet many other Paulas, and I feel it incumbent upon me to say what a great name you have.
My question is actually for Bonnie. Ms. Brayton, you spoke about the challenges for women who are dealing with mental health disabilities in segregation, whether that is fetal alcohol spectrum disorder, bipolar and so on. However, I imagine that being in a structured intervention unit is more difficult if you have a physical disability, whether that is with your vision, hearing, mobility and so on. Could you talk about what it is like in a structured intervention unit for someone who is physically disabled?
Ms. Brayton: Thank you for the question. I mentioned earlier the case of a woman who was forced to sleep on the floor. To the whole question of accessibility and disability itself, the Convention on the Rights of Persons with Disabilities clearly says that disability is an evolving concept. Many people would think of somebody with multiple sclerosis, or MS, as technically having a disability, but it is still considered a chronic illness. Canada has the highest rates of MS, for example, and 80% of those people are women.
The whole question of how we think about accommodation is important. When we talk about why we’re developing these standards, it is because of something else that many of you probably know, which is that a lot of human rights complaints at the federal level come from prisons, and they come from prisons for a very good reason: because of those intersecting discriminatory things we have heard so much about today. We have enough evidence to show that there are problems with accessibility with many different things, and part of it is a remedy like this one and part of it may be coming forward in some of the legislation that the Accessible Canada Act will bring forward. The disability community is fairly sophisticated now in terms of what we understand our role to be. It will take until 2040 for the Accessible Canada Act to be fully implemented, but it is an opportunity to change this country, not because it is enforceable but because of the kinds of conversations it’s started and recognition it has brought through the federal government.
Senator Clement: Thank you both for being here and for your work. Thank you, Ms. Marshall, for your work and for your mothering. It is remarkable. Thank you for that. That is a lot of work and mothering.
My question is for Ms. Brayton. It is because of the question that Senator Batters asked in the first panel and Senator Miville-Dechêne asked this time.
There is an awkwardness for me around this because I am very sensitive to marginalized communities being pitted against each other for resources.
Ms. Brayton: Me too.
Senator Clement: I know. You were quite elegant in your response in saying we need to prioritize with this bill. The intersectionality around disability and Indigenous women, the 40%, that needs to be said, and you’ve repeatedly said that once we’ve targeted Indigenous communities, then we can look at the rest.
When I go to Collins Bay, and I have often been, and speak to the Black men there, the Black prisoners, they always say to me, “You know, Bernadette, we want the best for our Indigenous brothers, right? We want them to get priorities.”
They just want to be included. These marginalized groups are not fighting one another. They want the best for one another. Would you say that is true when you speak to Black women?
Ms. Brayton: DAWN Canada has been working since 2020 on an initiative we call Root Resilience, Root Change, Root Justice. We linked it to the special development goals of the UN and the National Action Plan to End Gender-based Violence, and it comes from the connections we’ve made because we are an intersectional human rights organization. We don’t just talk about disability or women. We’ve made a clear commitment to that and changed our mission statement to reflect that.
The two senior staff people I have are my Director of Indigenous Initiatives, who is an Indigenous woman, and my Director of Black Community Initiatives, who is a Black woman. I hold very strongly to the idea that, within those of us who are marginalized, the most important thing we must do is root our resilience. I do believe that movement is one that requires respecting who is at the furthest margin, though.
That struggle continues for DAWN. When we talk in larger spaces to women, we have to remind them that 30% of women in Canada live with a disability. That is the statistic — one third of all women in this country. If you are not practising, doing your work and including women with disabilities, then you need to make some adjustments. The larger conversation we need to start to have — and Canada, I think, is the best place to have it — is around the fact that human rights have evolved a great deal but the treaties have not. They siloed us, and they were important. All the treaties are important. The Convention on the Elimination of All Forms of Discrimination against Women, or CEDAW, is important. The United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, is important. The Committee on the Rights of Persons with Disabilities, or CRPD, is important. But it creates huge barriers for those of us who live with those intersections because we have to be everywhere.
I have heard the Prime Minister speak a lot about resilience, and I have heard more people beginning to understand that, even in the context of Canada in this larger trade situation and our resilience. I appreciate you bringing that up, recognizing that DAWN considers this to be an extremely important aspect.
In 2020, DAWN Canada made a clear commitment to truth and reconciliation. Our logo was redesigned. She is a beautiful hummingbird, and she was designed by an Indigenous graphic design company. These are symbols, but investing in leadership is more than a symbol, right? That is the future face of DAWN Canada. That is where I take great pride in the fact that I was recognized earlier for the work that DAWN Canada has been doing for many years because women with disabilities have always been at the margins. We understand more profoundly than any other community that it has to include everyone and we can leave no one behind.
The Chair: Thank you to both witnesses for coming this evening. On behalf of my colleagues in the Senate, we thank you for your presence and insights and for sharing your experience and advice with the committee this evening.
I should mention that all three witnesses on the first panel and Ms. Marshall, for a variety of reasons, had been rescheduled three times. I’m happy we did not have to reschedule.
Ms. Marshall: We were happy to come this time, yes.
The Chair: Thank you, Ms. Marshall and Ms. Brayton, for your advice here tonight. Thank you for helping the committee in its work.
(The committee adjourned.)