Honourable senators, I rise today as critic for the official opposition at second reading of Bill S-205.

This bill was tabled by Senator Pate under the short title “Providing Alternatives to Isolation and Ensuring Oversight and Remedies in the Correctional System Act,” or Tona’s Law.

The bill’s principle and objectives are not new to this chamber. They were first raised in 2019 under the Forty-second Parliament during a study of Bill C-83. To give you some context, the bill was intended to address Ontario and British Columbia provincial court judgments which found that “solitary confinement,” as it was known at the time, was unconstitutional. These courts had held that the use administrative segregation contravened the Canadian Charter of Rights and Freedoms.

In response to these decisions and to comply with the Charter, the government used Bill C-83 to create what became known as structured intervention units, or SIUs, and it also implemented a review process for decisions on whether or not to incarcerate an inmate in an SIU.

During its study of Bill C-83, the Senate adopted a series of amendments, most of which were not accepted by the other place or by the government when the bill passed. Then, in 2021, Senator Pate introduced Bill S-230 during the Forty-fourth Parliament. Her goal was to reintroduce in the Senate the amendments to Bill C-83 that were rejected by the other place and thus implement the recommendations of the Standing Senate Committee on Social Affairs, Science and Technology.

During the previous Parliament, Bill S-230 made it through every stage of study in the Senate and was finally sent to the other place on December 10, 2024. When the election was called, the legislative agenda was reset and Bill S-230 died on the Order Paper. Now, we once again have before us an almost identical bill, since the objectives and the content of Bill S-205 are the same.

The bill summary sets out the bill’s four objectives, which are to:

(a) require that, if a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, they will be transferred to a hospital;

(b) ensure that a person may only be confined in a structured intervention unit for longer than 48 hours on an order of a superior court;

(c) allow for the provision of correctional services and plans for release and reintegration into the community to persons from disadvantaged or minority populations by community groups and other similar support services; and

(d) allow for persons who are sentenced to a period of incarceration or parole ineligibility to apply to the court that imposed that sentence for a reduction if there has been unfairness in the administration of their sentence.

In order to achieve these four objectives, Bill S-205 proposes substantial amendments to the Corrections and Conditional Release Act. My main objections to this bill concern paragraphs (a), (b) and (d) of the Summary to Bill S-205, particularly considering their unfeasibility and impact on our hospitals and our judicial system.

First, the objective set out in paragraph (a) and implemented by clause 4 — that if a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, they will be transferred to a hospital — is not achievable and raises security concerns.

I believe that requiring any inmate suffering from a disabling mental health disorder to be transferred to a hospital amounts to unloading the role of penitentiaries — which, let us not forget, is a federal responsibility — on the provinces. Need I also remind this chamber that provincial health systems are already under great strain?

Hospitals are under pressure. Will they have the capacity in terms of medical resources, including psychiatric doctors and specialized nurses? Will they have the infrastructure and material resources they need to accommodate a higher volume of patients? Will they have enough beds and rooms? Will they have the financial resources to absorb increased admissions to their health care facilities?

In my opinion, to ask these questions is to answer them. A quick scan of the headlines is all it takes to convince anyone that, as things stand, the provinces cannot afford to increase the number of admissions to their health care facilities, including psychiatric care units.

What’s more, has anyone considered the safety of the staff and the many vulnerable people who receive care in our hospitals? Medical staff are not correctional officers trained to monitor and supervise inmates. Correctional officers would need to be added to these hospitals.

The objective of requiring inmate transfers will likely result in our hospitals and psychiatric institutions becoming penitentiaries. I am firmly opposed to this.

The definition of “disabling mental illness” is so broad that, in previous testimony from psychiatrists, we were told that every inmate at one time or another meets this definition of “disabling mental illness.” Therefore, any person detained in a prison could, during their detention, request a transfer. That represents an unimaginable number of individuals who could be transferred.

Second, the objective set out in paragraph (b) and implemented by clause 5 states that superior court authorization is required in order to hold someone in an SIU for more than 48 hours. This measure is also impractical and creates safety issues for the inmates themselves.

Like our hospitals across Canada, our justice system is in poor shape. Increasing the number of applications to higher courts is not advisable. Furthermore, what happens if the authorization is not obtained due to a judicial delay? Will correctional officers automatically have to return the inmate to their unit in the prison? Is this really in the best interests of the inmate and the prison population?

This objective would destabilize our legal system by creating urgent timelines for obtaining court orders and by imposing a heavy workload on the courts. Again, I oppose this bill’s objective, first of all because it creates a large number of urgent requests to be decided by our superior courts, and because these courts lack the necessary resources to handle a flood of additional applications.

Furthermore, returning inmates to their correctional facility prematurely could endanger their safety, the safety of other inmates or the penitentiary. I don’t think that’s what we want.

Third, the objective set out in paragraph (d) of the summary and implemented by clause 11 allows:

 . . . for persons who are sentenced to a period of incarceration or parole ineligibility to apply to the court that imposed that sentence for a reduction if there has been unfairness in the administration of their sentence.

This contradicts a fundamental principle of law, specifically that court decisions are final, as well as the Criminal Code rules stipulating that it falls on appeal courts to review and modify a sentence that has been handed down.

It’s worth noting that legal and constitutional remedies already exist to meet the objectives without needing to resort to the mechanism provided for in Bill S-205. For instance, the Criminal Code and the Canadian Charter of Rights and Freedoms contain a habeas corpus remedy. A 2022 Quebec Superior Court decision summarizes the usefulness of this remedy established by the Supreme Court of Canada, and what we can learn from it.

Habeas corpus is a remedy, developed by common law and enshrined in section 10(c) of the Canadian Charter of Rights and Freedoms, that allows an inmate to have the Superior Court determine the validity of their deprivation of liberty and, if it is unlawful, to obtain release. In the correctional context, habeas corpus allows inmates to challenge a loss of residual liberty decided by the authorities, that is, a significant restriction of liberty in comparison to the relative liberty they would normally have in a penitentiary setting. Loss of liberty implies a decrease in freedom in comparison to an initial state. Deprivation of liberty is unlawful when it results from a jurisdictional error, an error of law or a lack of procedural fairness or when it is unreasonable.

Before concluding, I would like to address a point raised by Senator Pate during her speech at second reading on June 3. Our colleague made reference to the conclusions of the final report of the Structured Intervention Unit Implementation Advisory Panel. The panel concluded the following:

The most obvious conclusion from the eleven previous reports on the SIUs and the review and new analyses contained in this one is that Canada has not eliminated the experience of solitary confinement with the construction and operation of the SIUs. Indeed, in terms of relatively long stays, we have repeatedly presented data that the rate of long stays in SIUs is comparable to the rate of long stays in segregation in Canada’s penitentiaries prior to the implementation of the SIU regime. Moreover, we see that many prisoners are not receiving their minimum hours out of cell and thus, a practice that SIUs were supposed to eliminate and that the courts prohibited, continues.

Nevertheless, it does need to be remembered that a long stay in an SIU does not necessarily automatically translate into long periods of solitary confinement. However, as reported in Appendix Tables 4 and 5, more than half of the prisoners with long stays in SIUs (16 days or more) did not get their 4 hours out of cell on at least three quarters of their days in the SIU. Similarly, looking again at those individuals with SIU stays of at least 16 days, roughly 47% failed to get their 2 hours of meaningful human contact on at least half of their days in the SIU. Said differently, a practice that SIUs were supposed to eliminate continues under a new name.

Honourable senators, before legislating, should we not seek to understand why Correctional Service Canada is unable to meet its obligations under the Corrections and Conditional Release Act? Does Correctional Service Canada need more financial, material and human resources to meet its legal obligations? I don’t think that adding a series of extremely restrictive and difficult to implement obligations based on the principles of the bill will help to implement existing legal obligations. Bill S-205 is the wrong tool to achieve our goals. As I often say, this is what we call a bad idea masquerading as a good one.

In closing, honourable senators, given the arguments that I just presented, I’m sure you will understand why I cannot support this bill.

Thank you.