Moved second reading of Bill S-205, An Act to amend the Corrections and Conditional Release Act.

She said: Honourable senators, I rise today on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg as I reintroduce Tona’s law. The purpose of Tona’s law is to ensure oversight, remedies and alternatives to isolation in federal prisons.

Speaking about human rights today feels somewhat precarious. We teeter from unredressed colonial legacies to attacks on the sovereignty of Canada.

Too many are facing horrendous barriers to securing food, shelter and health care, as well as threats that the “notwithstanding” clause will be used to condone squashing human and Charter rights and securing draconian punishments.

Prisons are full of the people who are failed by every other system: health, social, child welfare, education and income supports. Those most marginalized in Canada — those who are poor, homeless and living with mental health and addiction issues — are being subjected to unthinkably inhumane conditions in federal prisons.

The erosion and trampling of human rights in our prisons reflects our wholly inadequate protection of our fundamental values. In societies where rights and freedoms are taken away, those most marginalized are always the first victims. But the abuse never stops there. With “elbows up,” it is time to push back on the normalization of inequality, marginalization and oppression wherever it occurs.

Tona’s law deals with isolation, also known as solitary confinement and segregation.

How can I capture the horror of caging and isolating humans in little more than a concrete closet for hours, days, weeks and even years on end?

If you have witnessed or read the court cases, medical findings or coroners’ inquests on the impact of isolation on the minds and bodies of those who have survived it and have not, you already know that harm begins the minute cell doors clang shut.

Within 48 hours, sensory deprivation and other irreversible harms can take root. After seven days of isolation, brain activity can be permanently altered. As summarized by the Ontario Court of Appeal, isolation is the following:

. . . repeatedly . . . linked to appetite and sleep problems, anxiety, panic, rage, loss of control, depersonalization, paranoia, hallucinations, self-mutilation, increased rates of suicide and self-harm . . . .

Internationally, 15 days in isolation is considered as amounting to torture.

Isolation is too often the default means of responding to prisoners whose complex needs — relating to age, disability, mental health, addiction, trauma and the intergenerational impact of colonialism — we have failed.

As calculated by the Parliamentary Budget Officer, Canadians pay millions upon millions each year for isolation — one of the most cruel, ineffective and expensive approaches to our shared goal of improving public safety.

For nearly five decades, I have spent countless hours kneeling on cement floors at little slots or at door hinges, pleading with people — with someone’s children, siblings, parents or partners — to stop smashing their heads, slashing their bodies, tying ligatures around their necks, trying to gouge out their own eyes or otherwise trying to mutilate themselves.

The sounds of torment and despair are indescribable. They will forever haunt me. How can any of us even imagine so craving human contact such that we risk death in order to instigate even a violent human intervention?

In 2019, the government promised that Bill C-83 would eliminate the use of segregation and solitary confinement in federal penitentiaries. Instead, the legislation was aimed at preventing the Supreme Court of Canada from upholding provincial Court of Appeal decisions ruling that segregation and solitary confinement are harmful and unconstitutional. More than five years later, isolation is used more often and with less oversight.

The Senate has repeatedly recognized the need to safeguard the human rights and Charter rights that protect federal prisoners and all Canadians. Colleagues, we have already voted three times in favour of the measures in Tona’s law.

In 2019, the Senate voted to add these measures to Bill C-83 at the recommendation of the Senate Social Affairs Committee. They were short-sightedly removed by the government.

In 2021, this chamber endorsed these measures as part of the recommendations of the Human Rights Committee in its report on the human rights of federally sentenced persons.

Most recently, in December 2024, following robust and multi‑year consideration by the Legal Committee, the Parliamentary Budget Officer and this chamber, Tona’s law was passed and sent to the other place.

The bill before us today is the same one we passed. One lone edit was made to clarify in the text of the bill a point that we had understood in practice when passing the bill: The term “disabling mental health issues” in Tona’s law could be defined using criteria already appearing elsewhere and endorsed by the government in the Corrections and Conditional Release Act.

The election and new Parliament put us back to square one, with years of work at risk of being wiped out. This would be a particularly cruel outcome for those trapped in isolation — souls for whom every day counts.

As I humbly urge that we vote to send this bill back to the House of Commons as soon as possible, I thank colleagues for your continued encouragement and support.

Allow me here to give a shout-out to the collective work of the more than 40 of you who have gone to prisons to meet with those trapped inside as part of the “Senators Go to Jail” initiative.

Back in 2019, within moments of Bill C-83 passing, a number of you, including the sponsor of the government bill in the Senate, proposed that senators work together to visit prisons in order to monitor the implementation of Bill C-83 and particularly its human rights impacts.

I thank all of you who have supported and participated in this initiative.

I am also grateful for the inspiration of Tona Mills. Tona implored the members of the Human Rights Committee to do whatever we could to prevent anyone else from experiencing the horrendous conditions to which she has been subjected, which resulted in her eventual psychiatric diagnosis of isolation-induced schizophrenia. She urged us to end solitary confinement and get others out of prisons and into appropriate mental health services.

I first met Tona three decades ago. I knelt at meal slots of her segregation cells, first at the Prison for Women in Kingston and later in other prisons, including segregated units in prisons for men, as Tona spent nearly every hour of every day for more than 10 years in solitary confinement, sometimes also shackled to beds or floors.

Outside the now-closed Prison for Women, Tona’s cell-sized metal recreation cage still stands. When visiting the site with law students in recent years, one of them asked me if that was where they kept the dogs. You can imagine their horror when I explained that it was constructed to contain Tona for her one hour of fresh air when she received it.

Today, Tona is in the palliative stages of terminal cancer. Her community of caregivers is incredulous at the notion that she could ever have been described as dangerous. They experience her as a witty, kind and generous patient who takes every opportunity to advocate for others.

Since December, when we passed the last iteration of Tona’s law, the need for this law has only increased. In its final act before being disbanded, the independent panel of experts — appointed by the Minister of Public Safety to monitor implementation of Bill C-83 — delivered its final report.

The panel concluded that in the structured intervention unit, or SIU, system created by Bill C-83, “. . . the practice of solitary confinement continues . . .” and oversight of the practice, as highlighted by recent court decisions, is virtually non-existent.

The panel underscored that SIUs are located in what were once called segregation cells, sometimes under a thin coat of paint.

According to the panel, most of those in SIUs continue to experience the conditions of solitary confinement. For the significant proportion whose solitary confinement lasts longer than 15 days:

The Mandela Rules suggest that these prisoners are experiencing conditions . . . amounting to “torture or other cruel, inhuman or degrading treatment or punishment” . . . .

The panel emphasized the lack of effective oversight of the SIUs. This reality notwithstanding, Correctional Service Canada repeatedly points to the existence of three SIU oversight bodies: the ministerial advisory panel, the Office of the Correctional Investigator and independent external decision makers, or IEDMs. Yet Correctional Service Canada consistently fails to respond to or recognize the concerns that these bodies raise, when they do.

This already unacceptable situation only became worse with the disbanding of the ministerial advisory panel.

Despite their name, the work of independent external decision makers depends on Correctional Service Canada, the agency whose decisions they review. It is Correctional Service Canada that flags to IEDMs which prisoners may be at risk as a result of correctional decisions.

Despite IEDMs describing themselves as overloaded, last year the Minister of Public Safety decided not to renew contracts of several IEDMs. For months, only 7 of 12 positions were staffed, until more appointments were made late this spring. Those IEDMs whose contracts were not renewed were also those who were least likely to rubber-stamp correctional decisions.

The ministerial advisory panel urged that the government must:

. . . demonstrate it is serious about ensuring [Correctional Service Canada] operations are lawful and Charter compliant. It must demonstrate that it understands that this requires ongoing and focused oversight of isolating conditions of confinement . . . .

The previous Minister of Public Safety repeatedly refused to appear before the Senate Human Rights Committee to discuss these and other concerns about human rights of prisoners. What is more, the government has so far failed to ensure completion of the requisite five-year parliamentary review of SIUs and Bill C-83.

The ministerial advisory panel emphasized that those most marginalized — particularly Black and Indigenous people and those with disabling mental health issues — are most likely to be isolated in SIUs.

International and Canadian legal standards prohibit solitary confinement of those with disabling mental health issues, yet corrections’ own data reveals that rates of those with mental health issues are double in SIUs.

Black Canadians account for 4% of the Canadian population, 10% of those in federal prisons and 18% of those in SIUs. Indigenous Peoples make up 5% of the Canadian population, 33% of those in federal prisons and 44% of those in SIUs. Almost all — 96% — of women in SIUs are Indigenous.

It is indeed striking and disturbing that the ministerial advisory panel members reported visiting an SIU where an Indigenous Elder working with prisoners “. . . specifically mentioned that SIUs reflect the worst of CSC, meaning there is no treatment, no help, and no hope . . . .”

The oversight mandates of the defunct ministerial advisory panel and the IEDMs focus only on SIUs, leaving every other form of isolation to operate without any oversight at all.

Members of the ministerial advisory panel reported their concerns about non-SIU isolation, such as “. . . an entire unit . . . housing prisoners in what can only be described as solitary confinement.” They were also extremely concerned that within SIUs, they found:

. . . at times there were more prisoners physically in the SIU than showed up in official records of the SIU “count” on the day that they visited. . . .

The final report of the ministerial advisory panel highlights that “SIUs are, arguably, the most surveilled spaces in a Canadian penitentiary.” Yet, with extremely limited oversight, conditions in those units too often amount to torture. If the conditions in SIUs are considered torture, this practice of abuse in plain sight should make us even more urgently concerned about what is happening in other areas of isolation in prisons, since they are subject to no surveillance.

The few cases that make the news give us some sense of the culture of human rights abuses in Canadian prisons. In March, a judge issued a final report in a fatality inquiry regarding the death of a young Indigenous prisoner, Mason Montgrand, at the Edmonton Institution, a federal penitentiary. Twenty-one-year-old Mason died in 2011 after guards let him and another prisoner with a rival gang affiliation out of their cells at the same time. His death was examined as part of a police investigation into a “fight club” at the prison — allegations that prison staff were forcing prisoners in their custody to fight each other, resulting in serious injuries and death. Police strongly recommended charging two correctional officers and a correctional manager with murder and criminal negligence, but prosecutors declined to lay charges.

Nearly a decade and a half later, the judge presiding over the fatality inquiry explained that there was still little transparency from authorities about what happened to Mr. Montgrand and that information was repeatedly withheld from her. She called for a public inquiry to provide further clarity into what she termed “. . . a matter of public concern.”

Around the same time, the Toronto Star published a video of guards committing mass human rights abuses against 200 men at the Maplehurst provincial prison in Ontario. The video shows the jail’s superintendent responding with congratulatory fist bumps for the abusive staff.

The retaliatory mass punishment was apparently the staff response to one prisoner allegedly punching a guard on December 20, 2023. Two days later, the superintendent decided to deploy guards trained to respond to riots on quiet, unsuspecting men, locked in their cells. Guards strip-searched the men, used their thumbs like joysticks to lead them out of cells, breaking at least one man’s thumb and another’s wrist, forcing them to sit facing the wall in their underwear, with weapons trained at their heads. The men were then confined to empty cells as prison authorities blasted cold air onto the range. They were finally provided with clothes on Christmas Eve.

As many as 80% of the men who were abused at Maplehurst were awaiting trials and had not been convicted of a criminal offence. The Toronto Star has confirmed at least 11 cases where sentences were reduced and 1 where charges were stayed altogether, noting that in total more than 100 cases could be affected. As reported by the paper, a Crown attorney in one such case told the court that he agreed to a plea deal for no additional jail time beyond time already served because, while he would have “undeniably . . . sought a significantly higher sentence, . . . there was ’no escaping’ the violation by the jail.”

Through Tona’s law, the federal government could lead by example, making clear that the accountability that Canadians rightly expect from criminal legal and prison systems must flow from and be modelled by the behaviours of those in positions of authority, especially when it comes to the custody and lives of others.

So little has changed since the all too familiar “certain events” at the Prison for Women in Kingston 31 years ago. After women were isolated in segregation and denied access to water, food, clothing and calls to lawyers, on April 26, 1994, an all-male emergency riot squad dragged sleeping women out of their cells to be unlawfully stripped, shackled and left in segregation cells, naked save for flimsy paper gowns tied around their necks. The majority of those women were Indigenous.

Today, the violation of these women’s Charter and human rights is recognized as a travesty and a massive arbitrary display of masculine force exercised in the face of virtually no resistance. When I became the first non-corrections or prison-related person to meet with the women after these events, prison officials advised me that I was misinformed about what had happened. I was counselled, cajoled and then cautioned against being so easily “conned.”

The pressure to recant intensified, and my integrity and employment were repeatedly threatened over the ensuing year, until the eventual airing of the video of those events by “The Fifth Estate.” The videos proved every allegation by the women — and, by extension, me — to be true.

The travesties inside prisons that we hear about are often characterized by correctional authorities as anomalous or exaggerated. Horrifically, they are not.

Because of the closed nature of prisons, most abuses are never revealed to the public. Cultures of systemic human rights violations and oppression are rarely revealed to those of us outside prison walls. Too few have information about what is going on in Canadian prisons. Even fewer are believed if they try to speak out. As many of you know first-hand, even judges and parliamentarians struggle to get answers from those responsible for prisons. Abuse is enabled precisely because of the lack of effective oversight, transparency and accountability.

What would Tona’s law change? First, it would finally implement the court oversight of decisions to isolate prisoners that Louise Arbour recommended nearly three decades ago, following her work presiding over the commission of inquiry in response to the events at the Prison for Women in Kingston.

Tona’s law would require prison authorities to seek approval of a superior court to keep a person in isolation for more than 48 hours. This cap reflects the latest data, acknowledged by the Ontario Court of Appeal, among others, about when irreparable physical, psychological and neurological harms can begin.

Second, if correctional mismanagement has made a person’s sentence more punitive, for example, due to extensive periods of time in isolation, that person can apply to the court that sentenced them for a reduced sentence or parole ineligibility period.

Currently, if abuse occurs before a sentence is issued, as I have already mentioned about Maplehurst, the Criminal Code permits judges to reduce the length of the sentence in response. In the Hills decision in 2023, the Supreme Court of Canada reminded judges that when they order a sentence, they also need to look ahead to what a person will experience in prison, including how factors such as Indigenous status, race, mental and physical health can result in harsher and more punitive conditions.

But what about conditions of isolation that a judge did not foresee? As recommended by Louise Arbour, Tona’s law would fill this gap. It would allow sentences to be adjusted as a remedy when rights are violated in prison. This kind of remedy exists in several Northern European and Western European countries, as well as in our youth system.

Third, because isolation also occurs outside SIUs, Tona’s law would ensure that court oversight and any other applicable safeguards extend to all conditions of isolation — any time a person is in conditions more restrictive than the general population.

When the Senate voted to pass the last iteration of Tona’s law, it did so on the strength of witness testimony in support of court oversight from experts including the Canadian Prison Law Association, BC Civil Liberties Association, The John Howard Society of Canada, the Canadian Association of Elizabeth Fry Societies, the Criminal Lawyers’ Association, the West Coast Prison Justice Society, the Native Women’s Association of Canada, the Canadian Association of Black Lawyers, the Mental Health Commission of Canada, Dr. Adelina Iftene, lawyer Michael Spratt, and Professor Emeritus and prison law expert Michael Jackson.

After half a century of working on non-judicial oversight, Professor Jackson concluded that involving the courts is the only way to remedy this wrong. He stated that Correctional Service Canada, or CSC, “. . . has fiercely resisted any independent adjudication of segregation.”

He also said:

. . . in light of the collective experiences — almost 50 years of reports — in which CSC has expressed its resistance, at this point judicial review is the appropriate remedial measure.

When addressing concerns about the capacity of courts to handle a large number of applications, criminal law expert Michael Spratt noted that courts will rise to the challenge, as they do for mechanisms like bail reviews that involve high-volume and time-sensitive applications as part of safeguarding Charter rights.

He added that the requirement to apply to court after 48 hours of isolation will help to deter Correctional Service Canada from unnecessarily keeping people in isolation.

Tona’s law can save resources as well as lives. As acknowledged by the Parliamentary Budget Officer, fewer people in SIUs will save hundreds of thousands of dollars per person per year. Furthermore, the government has paid tens of millions of dollars in damages to those whose rights were violated by its former segregation system, and it is now facing similar class action challenges as its 2019 SIU regime.

In recent months, the Supreme Court of Canada called out unconstitutional, punitive uses of solitary confinement in provincial prisons — a situation that could have been prevented with federal leadership and a provincial version of Tona’s law.

In another case, the court emphasized that the state may be liable for Charter damages if Parliament passes legislation that is clearly unconstitutional.

As we debated Bill C-83 in 2019, experts warned us that the legislation was not Charter compliant. The analysis of government data by the minister’s advisory panel has since confirmed that unconstitutional solitary confinement persists.

In placing limitations on the use of isolation in federal prisons, Tona’s law also proposes crucial alternatives for those most at risk of being placed in SIUs.

For those with disabling mental health issues, Tona’s law would expand existing provisions authorizing Correctional Service Canada to transfer prisoners to provincial-territorial health systems, including for mental health reasons. Notably, the bill would add a requirement to transfer those found to have a disabling mental health issue.

As noted, explicit reference is included in Tona’s law to specify that it is precisely the same criteria established in the Corrections and Conditional Release Act provisions on SIUs — in section 37.11 — that would be used to help determine whether a disabling mental health issue exists.

While opportunities to transfer people out of prison have long existed, they have been too rarely used to address mental health issues. Despite much evidence that corrections-based services often defer to security systems, even in the cases where therapeutic needs are identified as a priority, Correctional Service Canada continues to invest resources with the explicit intention of ostensibly providing mental health treatment and then failing to do so within prisons.

When we passed this bill in December, I spoke about an Ontario Superior Court case involving Mr. Warren whose disabling mental health issues led to a series of arson convictions and a dangerous offender designation. Justice Pomerance referenced Tona’s law and ordered that Mr. Warren serve his sentence in a hospital. Mr. Warren faced an indeterminate sentence, and Justice Pomerance recognized that in prison he would be condemned to lifelong isolation with no hope of adequate treatment or any chance of working toward community integration. She ruled that incarceration would violate his Charter rights.

In the year since this court decision, Mr. Warren, like too many others, has languished in conditions of isolation at Millhaven Institution in Kingston. In the meantime, as the government appeals Justice Pomerance’s decision, Correctional Service Canada is effectively defying the order by contacting provincially run forensic hospitals, asking if they have space for a person with a dangerous offender designation and offering no resources to support his treatment. Such transparently irresponsible attempts to undermine Justice Pomerance’s direction are both reprehensible and, unfortunately, predictable.

Meanwhile, we must also examine what Correctional Service Canada has done with the resources it was allocated to contract mental health beds with provinces. In connection with Bill C-83, CSC was provided with at least $74 million tax dollars per year to address the mental health needs of prisoners. Correctional Service Canada testified at the Social Affairs Committee and the Human Rights Committee that some of this funding — at one point, they suggested $9.2 million — was earmarked for contracting access to the very external mental health beds that Mr. Warren and so many others so urgently need. Yet no new beds were, in fact, contracted by CSC. And they have provided inconsistent and misleading responses to requests for information about what they did with this money.

Tona’s law would push CSC to adequately fund and support community-based mental health services. This would not only be more humane and effective for prisoners, but it would also save lives and money. Data from the Parliamentary Budget Officer suggests that due to the tremendous costs of isolation, paying for a bed in a forensic hospital would actually represent savings of around $100,000 per person per year.

By ensuring people receive adequate treatment, these types of measures would also help improve the mental health status of so many and reduce strain on the mental health system in the long term.

In the absence of Tona’s law, Correctional Service Canada is doubling down on costly and ineffective approaches to mental health. Just days after this chamber passed Tona’s law, Correctional Service Canada announced that it would not follow the direction of the courts and countless experts on mental health and accountability. Instead, CSC plans to build what it calls a health centre of excellence at the prison where staff were charged with manslaughter related to the death of a man with mental health issues following “. . . multiple uses of unnecessary and inappropriate physical and chemical force.”

Tona’s law would also breathe life into existing alternatives to isolation for Indigenous peoples and other marginalized groups, recognizing that as a result of systemic discrimination and colonialism, Indigenous women and others most in need of community support and connection too often end up incarcerated, labelled as risks and locked away alone in SIUs.

Tona’s law seeks to expand access to sections 81 and 84 of the Corrections and Conditional Release Act, which permit prisoners to be transferred and released to the care and custody of Indigenous communities. Those repeatedly calling for this aspect of Tona’s law include commission after commission, including the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Truth and Reconciliation Commission, the Native Women’s Association of Canada, two House of Commons committees, the Office of the Correctional Investigator and the Canadian Human Rights Commission.

Tona’s law also aims to expand use of these provisions, in particular by allowing Correctional Service Canada to enter agreements for community-based care and custody with additional kinds of community groups serving others who are overrepresented in federal prisons as a result of systemic inequality — for example, Black Canadians and 2SLGBTQI+ folks.

When the Senate made the amendments to Bill C-83, which have now become the basis of Tona’s law, our dearly missed colleague, mentor and friend Senator Murray Sinclair shared the following as he explained his support:

. . . during the hearings of the Truth and Reconciliation Commission, we toured as many of the residential schools that were still standing . . . . In every one of them, there was a small room, usually under a staircase, where the residents would be confined if they were not listening to what the teachers were telling them. In each of those little rooms, some of them only two or three feet tall, you could see scratch marks on the wall and sometimes even bloodstains . . . from where . . . children, had tried to claw their way out or leave some kind of evidence of their being there.

This April, I visited the site of the Mush Hole, the Mohawk Institute Residential School at Six Nations. Among other sights that I will carry with me for the rest of my life was the understair isolation cupboard that Senator Sinclair described.

For too many Indigenous children and communities, residential schools were the beginnings of solitary confinement, forced removals and mass institutionalization now perpetrated by child welfare and prison systems.

Tona’s law will help to support the process of transferring individuals, financial resources and the inherent rights of self‑determination over criminal justice back to Indigenous communities and nations.

Next April will mark the thirtieth anniversary of Justice Louise Arbour’s call for the kind of court oversight of isolation that Tona’s law would finally make a reality. During the Commission of inquiry into certain events at the Prison for Women in Kingston, Justice Arbour insisted that the women she met with be unshackled and participate as fully as possible. She demonstrated the legal and moral imperative of ensuring the recognition of humanity and human rights. By so doing, she also underscored the need for court oversight and the insistence on the application of the rule of law and human rights to prisoners.

As Justice Arbour issued her report on what happened to the women in 1994, one woman was still in isolation. Prison authorities insisted that she needed to be fully shackled or chained to a bed or the floor in order to keep staff safe. They created a special slot in a door through which they would remove her shackles when she met with a woman the Correctional Service Canada called the one “idiot stupid enough to meet with her without her being physically restrained.” The woman in isolation was Tona, and the idiot who insisted on meeting with her unrestrained was me.

The conditions of segregation to which Tona was subjected helped inform Louise Arbour’s findings and recommendations in her report following the Commission of inquiry into certain events at the Prison for Women in Kingston. More than 30 years later, Tona is still working to end solitary confinement, not for herself but for too many others who have survived — and those who have not.

This is a moment when human rights feel precarious. It is also a moment when we feel their importance more than ever. As numerous Indigenous leaders have so eloquently expressed, this is a moment to look to, learn from, work with and uplift those who have never been able to take these rights for granted and who work constantly to strengthen and protect them.

Nelson Mandela, himself a survivor of solitary confinement, reminded us that “. . . no one truly knows a nation until one has been inside its jails.”

Tona says she often dreams she is still in segregation, so vivid are her memories. My recollections of her torture, as well as that of so many others, mostly leave me vibrating between rage and despair, and then laser focused on taking action. Tona is one of too many I have known who have barely survived, others died subjected to the state-sanctioned torture of segregation and solitary confinement.

Like Ashley Smith, who suffered a homicidal death in a segregation cell in 2007, Tona was driven crazy in prison. Unlike Ashley, she mercifully did not die in segregation in a federal prison, but she did emerge permanently and severely harmed. Tona urged any and all who would listen to “please end segregation for everyone, everywhere.”

Senators listened and introduced Tona’s law. Tona may never see the results of the bill she inspired.

If we build up community with robust social, economic and health systems, we can and must decolonize, decriminalize and decarcerate. Ending the use of isolation is just one step in that direction. Honourable colleagues, let’s work together to pass Tona’s law and return it to the other place. Let’s work in solidarity for a fairer and more just future to which all Canadians can aspire.

Meegwetch, thank you.

If the honourable senator will take a question, you have often referred to the need to end mass incarceration of Black Canadians, including their isolation.

Can you expand upon how Tona’s law fits with the goals of Canada’s Black Justice Strategy, please?

Yes. One of the objectives to end mass incarceration involves building up community. In sections 81 and 84 of the Corrections and Conditional Release Act, there are already provisions that would allow them to be applied to not just Indigenous prisoners but to others, Black prisoners among them. Given that the numbers have been going up, many have described the need to look at subsection 718.2(e) of the Criminal Code, otherwise referred to as Gladue reports, and look at the kinds of cultural supports that could be available and develop those kinds of models for Black prisoners.

Thank you, Senator Pate, for your rage and despair, and your work. It is much appreciated.

I read with horror the media reports this week of two former correctional officers taking their own lives after indicating that they had suffered harassment at the federal Joyceville Institution. It’s difficult to imagine that. If correctional officers are suffering from harassment, it is difficult to imagine what incarcerated people are suffering. They have reported to me, as well, that incarcerated people do suffer intimidation and abuse.

I wonder what you have witnessed and how Tona’s law will help staff and incarcerated people in that kind of context?

Thank you for that question.

Yes, I have received many calls from folks who worked with the two individuals whose suicides have been discussed. One of the things we were not able to report in the Human Rights Committee report is that, in every prison we visited, there were staff who wanted to meet in camera who were fearful of repercussions if it was known they were meeting with us. You have heard about some of them — Edmonton, Millhaven. Every place we went, we had private meetings with staff. We couldn’t report on that because they have to be public meetings to be used as evidence. Many staff, as recently as last week, were calling me and reporting incidents, indicating that if we have some protection for prisoners, it may be that it will be more likely that staff will also treat each other better.

The law itself doesn’t require staff to treat each other better. We presume that will be in place. But that’s certainly what I am hearing from people working in the institutions — that part of it is modelling that behaviour. As I’ve said many times, not necessarily in this chamber but in other public spaces, you can only imagine, if that’s how staff are treating each other, how they are treating the prisoners.

Yes, the vast majority of prisoners do return to the community — not all of them; we probably know and can count on our fingers the names of those who will never see the light of day, even though they might, on paper, be eligible for release at some point — and in fact, during the pandemic, Dr. Tony Doob — who was initially the chair and then, later, one of the members of the disbanded ministerial advisory panel — talked about the fact that, in any month, there are at least 5,000 prisoners released in Canada. When we know those figures, and we know that doesn’t result in the types of crime waves that we are often encouraged to think about, we know that many people go on to integrate back into the community.

But to your point, which is the issue of how people end up in isolation, I wish we could say it is a clear trajectory, but it is not. When we look at the classification scheme, what kinds of supports are in place and the kind of evidence put before a court, those can very much determine what the treatment is once someone gets into prison. Someone with mental health issues almost always ends up in segregation, usually not because of ill‑willed staff — sometimes that is the reason, but it’s not the predominant one. The predominant reason is that it is the easiest place to watch people. I have many staff who will call and say, “Can you think of anything else we could be doing right now?” And we often can.

In fact, just before I joined the Senate, we were working with the Human Rights Commission on a plan to desegregate all the institutions where women were housed. We were down to five women. The plan was that the minute they thought they needed to isolate someone, there would be a notification, and the Native Women’s Association, sometimes the DisAbled Women’s Network of Canada, as well as our organization — I was with the Elizabeth Fry Societies at the time — and the Human Rights Commission would intervene to come up with an individualized plan.

We also know that when the Ontario government introduced the legislation that has not been enacted yet — under the previous provincial government — they planned to initially start with at least four provincial jails that would have no segregation units, because they knew from what they had learned from the youth system that if you disallow it, then you actually create alternatives.

We do not know the extent of the creativity that is possible if we push for people to not necessarily have this as the first tool that they can utilize. Again, they utilize it not for nefarious reasons but because they are truly concerned that people may harm or hurt themselves. You have heard me talk about examples of guards saying to me, if I had my now-adult daughter strapped in a sling and something was happening in the prison, “Why don’t you go down and visit? We hear they really like the baby.” Meanwhile, they were contemplating putting that group of women in isolation by bringing in an emergency response team — basically a riot squad — to quell them. So even in those instances, if they don’t see that they have other options available, it is very difficult for them to utilize those options. That was a moment when it became very clear to all of us how little it took to take a different tack sometimes — but also how challenging that is when that’s not what you are encouraged to do or those are not the tools available to you.

Will the Honourable Senator Pate take a question?

Yes.

As I recall, Bill C-83 was fundamentally rather sound in its aims and objective. It was the vision that would be conjured up, if you followed the path — a necessary improvement of the segregation conditions that were there before they introduced Bill C-83. I remember that during the final round of questioning of the expert witnesses, we had the commissioner there, and it dawned on me that every good plan needs to be implemented and executed as planned with the resources provided for it, and then you need to continue to follow that up and make sure the culture and the strategy will support it.

To our disappointment, when we visited, what we imagined to be happening was not happening. We didn’t see the resources that were supposed to be applied to it. It was a culture and a structure or strategy that were not supporting it.

Here we are now. Again, there were amendments to Bill C-83. Then there were other amendments, and now we are going to add another one. This has to lie at the feet of whoever is in charge of that — the commissioner — and whoever ensures those support services are there and that they are actually following through on the programs. Too many of these people would like to be in the programs but are not getting in. So with this bill that you are introducing, how can we make people accountable from the top level down, and what are the penalties? There have to be consequences for them not following through on it.

Senator Pate, the time allowed for debate has expired. Are you asking for more time to answer Senator Klyne’s question?

I would ask for more time.

Is leave granted, honourable senators?

Thank you, Senator Klyne, for that question. Thank you for all the work you did on the bill but also, really importantly, ensuring and monitoring what happened afterwards and that your staff were made available. In fact, your former staff member was in touch with me last night about this very bill.

I think Professor Emeritus Michael Jackson probably put it best when he said that for 50 years, he tried to figure out ways to help reform corrections and put in place, within corrections policies, mechanisms that would encourage the kind of culture change that happened. In many of our experiences, mine included, in any institution — including prisons — sometimes you will see a champion who will change something for a period of time. Madam Justice Louise Arbour made that recommendation 30 years ago now. She recognized it was one of the few ways to force a change to happen. As lawyers have pointed out and as others will know, part of what Corrections was trying to do was avoid the oversight and the decision being taken by the Supreme Court of Canada that would actually address some of the issues that Tona’s law is trying to address. If you have judicial oversight, it is one of the ways to get the record public. Right now, we rely on corrections to produce it. I was heartbroken to read that the justice who is doing that fatality inquiry still cannot get documents almost 15 years after the young man’s death. We hear that all the time.

I was in a courtroom last week. The Crown was asking where I got access to documents that the Crown should have had access to. So I think one of the few ways to change it is to insist that we have that judicial oversight and that it goes before the courts, as well as to provide potential remedies for those who are wronged. Thank you.