Honourable senators, I rise today to speak to Bill C-83, an Act to amend the Corrections and Conditional Release Act and another Act.

I cannot support this bill unless the proposed Senate amendments are accepted. My stance is informed by the extensive study on the human rights of federally sentenced persons conducted by the Standing Senate Committee on Human Rights, of which I am the current chair, and my 40 years of social work experience in Nova Scotia working closely with incarcerated or previously incarcerated women and men.

The Human Rights Committee conducted 30 site visits to federal penitentiaries, healing lodges, a community correctional centre, community-based correctional facilities and two provincial mental health centres. During those visits, the committee met with approximately 200 federally sentenced persons, wardens, social workers, doctors, psychiatrists, psychologists, nurses, teachers, parole officers and correctional officers. The committee held 30 public hearings. Over the course of these meetings, the committee received testimony from 155 witnesses, including former federally sentenced persons, the Correctional Service of Canada, agents of Parliament, academics, unions, professional associations and civil society.

From staff and prisoners alike, we were informed about the decreased programming and service options and increased uses of static security, including segregation, as well as numerous incidents of unlawful behaviour perpetrated against those in isolation. Bill C-83 does not consider the harmful impact on vulnerable members of our communities. It does not create a solution for issues around CSC’s segregation and solitary confinement policies despite its claim to do so.

During the Standing Senate Committee on Social Affairs, Science and Technology’s study of Bill C-83, witnesses recommended section 81 as a default response to federally sentenced persons with complex needs in order to better provide the support needed for rehabilitative and reintegrative work. This was recommended as an alternative to the use of segregation. This recommendation came in response to Bill C-83’s proposed structured intervention units. Our observations were that these are the same segregation units with a different name.

Original sections enacted in 1992 allow both Indigenous and non-Indigenous prisoners to be transferred into the care and custody of Indigenous communities to serve their sentence either, in accordance with section 81, directly in the community or in a prison-like facility such as a healing lodge or, in section 84, for parole.

The Human Rights Committee’s interim report, The Most Basic Human Right is to be Treated as a Human Being, states that these options are rarely used in practice. CSC policy has limited section 81 agreements only for communities that agree to build prison-like structures and are available for those with minimum-security classifications, with the exception of some women with medium-security classifications. There has been an overall failure to meet requirements to inform prisoners about sections 81 and 84 as an option for release planning.

Honourable senators, making full use of sections 81 and 84 would no longer be an option with Bill C-83. This would act against the findings from the Human Rights Committee which states:

Using these provisions of the CCRA with their full legislative intent would facilitate the development of community-based, individualized or small group alternatives to prisons that would provide better options for Indigenous prisoners, in particular, and reduce incarceration rates overall.

Additionally, further limiting use of sections 81 and 84 would be despite the fact that the Parliamentary Budget Officer has recently determined that placing an individual in the community under a section 81 agreement represents a fraction of the cost of keeping them in the structured intervention units implemented by Bill C-83. The Parliamentary Budget Officer estimates that section 81 agreements cost approximately $110,000 per person per year whereas the structured intervention units sit at about $58 million per year on top of the pre-existing costs of segregation that can range, for example, up to more than $600,000 for women.

A primary concern is the specific impact an unamended Bill C-83 will have on African Canadians. As we know, the percentage of Black Canadians in our penitentiaries is 8.6 per cent, despite accounting for only 3.5 per cent of the overall population.

In addition to this over-representation within Canadian prisons, according to the Annual Report of the Office of the Correctional Investigator 2016-2017, Black Canadians are overrepresented in maximum security, segregation and use-of-force incidents. These numbers in maximum security mean that African Canadians are less likely to be able to access community-based measures under sections 81 and 84.

Sections 81 and 84 transfers to community-based groups can make a significant difference in the lives of federally sentenced Indigenous peoples, African Canadians, other racialized people and transgender people, to name a few. These transfers can be life-altering and life-saving. Bill C-83’s original wording risked restricting applications only for Indigenous governing bodies and Indigenous organizations, where language previously included “communities” and “other groups.” The committee amendment introduces wording which broadens the eligibility. This is key to allowing for other marginalized people to have access to programming that will facilitate safe and successful community reintegration.

The broadened access to community for particularly marginalized people provides new tools for supporting populations who are overrepresented in the correctional system. This is a needed step toward creating better access to more culturally relevant programming and culturally appropriate mental health care for federally sentenced Black persons in their communities as well as greater access to community spiritual advisers, instructors and teachers.

Honourable senators, I urge you to consider the dangers of Bill C-83. Without the amendments, Bill C-83 could have a harmful impact on vulnerable members of our communities. Simply renaming segregation and rescinding the eligibility of sections 81 and 84 would disproportionately impact Black and Indigenous federally sentenced persons. The consequences of this are detrimental to our communities and would incur much higher costs than the alternative, making use of the already-existing sections 81 and 84. There certainly is a need to establish alternative measures to segregation in our federal penitentiaries. However, Bill C-83 does not provide an adequate alternative financially or for the safety and wellness of our communities. Thank you.

Honourable senators, I’m pleased to have the opportunity to speak to Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

I thank Honourable Senators Klyne and Bernard for their remarks today. I will try not to repeat certain areas and to add to the discussion, but some of the key areas that have been raised are matters of concern to me that I spoke to at second reading, and I will take a moment to highlight those.

At second reading, the purpose of my speech was to outline a number of areas of concern and to ask, at the committee stage, that these matters be studied and probed and the committee make a determination as to whether or not any amendment, commentary or observation was warranted.

Of course, I was not the only one to raise these issues. Let me suggest that there are many who have played an important role in surfacing and socializing these concerns. I appreciate the work that the committee did, and I appreciate the work to amend and return the bill to the chamber for us to consider.

At second reading, the areas I concentrated on were the concerns, in segregation, around isolation, duration, indeterminacy, access to health care and touched on the alternatives to segregation.

In each of those areas, as you have heard, the courts have pointed to the dangers of any time spent in isolation, particularly for those with mental health issues.

At committee, Senator Kutcher brought a depth of knowledge and expertise that was very helpful and informed a couple of the amendments, as did Senator Pate’s professional career and personal passion for issues of prison reform, and her knowledge was important as well.

Clause 7, page 4, that within 24 hours of an inmate being in an SIU, the person who authorized the transfer shall refer the inmate for a mental health assessment was one of the amendments brought forward.

As you will see in the further amendments, it is critical in terms of ensuring that there is not just a mental health assessment done, but an appropriate type of assessment.

From Senator Pate, there is an amendment — clause 7, page 4 — that requires the transfer of incarcerated persons suffering from disabling mental health issues to psychiatric hospitals.

So there are two steps. There has to be an assessment. I’ll talk about the nature of the assessment in a second.

Second, if a person is diagnosed as suffering from a disabling mental health condition, they have to be referred to a psychiatric hospital.

Let me speak about duration. The bill continued to allow for total isolation for at least 20 hours per day and for indefinite periods of time. I’ll get to indeterminacy in a moment.

It is true — and, Senator Klyne, I think you spoke to this — that the bill increased the time outside of segregation from two hours to four hours, a step forward, but given the evidence we have heard and know of and we have seen amassed in the court rulings, not only within Canada, but the state of the understanding of the rules and conventions internationally, 20 hours a day is an inappropriate length of time in isolation.

Clause 10, page 5, there was an amendment from Senator Pate that any confinement in an SIU will not be more than 48 hours unless authorized by a Superior Court.

This is really important. It offers the potential improvement to the operation of these important steps forward that were set out in Bill C-83 in a way that is more in keeping with the kind of critical commentary we’ve heard from the courts, the kinds of observations from people like the Honourable Louise Arbour. There is a history of examining this issue, and it has been a long time that suggestions have been made that there should be some judicial oversight. This amendment, if accepted by the government, would accomplish that.

On indeterminacy, the Court of Appeal decision, one of the decisions I talked about, imposes a minimum requirement of a 15-day limit on segregation. This bill allows for 30 days, plus a potential delay in moving an individual could add five more days, plus a window for commissioner review, and terms such as “as soon as practicable” and the chance of a longer external review. The constraint of those provisions that allow for indeterminacy, and in fact provide for indeterminacy, will be by this referral to the Superior Court and judicial oversight.

It is fully expected by those of us who have followed the issues over the years, with respect to the use of segregation and the kind of reform that many have been calling for, that judicial oversight will look at a number of principles. It will look at the court decisions that are in place and at the international standards governing segregation in the Mandela and Bangkok Rules. Those international rules set a hard time limit of 15 days in segregation, which is quite different than the indeterminate nature of the bill as it was. We believe that judicial oversight will incorporate some of those principles in terms of how a justice reviews this.

The international rules don’t simply deal with the indeterminacy issue and the hard cap of 15 days. They prohibit segregation for those with mental health issues and/or physical disabilities, for people under 18 years of age and for pregnant women. I think those are important principles that have informed court decisions that we have already seen. They will be key to the process of judicial oversight and to other court cases that we know will proceed to the Supreme Court. In due time, we will see those rulings.

If you read those court decisions, the courts have documented that some of the ways the provision of health care services is compromised and undermined in prisons include a tendency to misconstrue mental health issues as misbehaviour issues. I spoke at second reading about the case of Ashley Smith, as have others. I will not repeat that except to say that the response from the correctional officers and officials in that circumstance was to believe that Ashley Smith was crying out for attention. That is a reading of a mental health issue as a behavioural issue. They responded with a behavioural control response, leaving her there. As we know, it tragically led to her tragic death. She won’t act out anymore.

There is also a perception that psychologists who are employed in the system are really there to sign off on continued segregation rather than to help prisoners.

Senator Kutcher — again, an expert in this area — helps us through an amendment to clause 1, page 1, that defines mental assessment as meaning an assessment of the mental health of a person. That assessment is conducted by medical professionals with recognized specialty training in mental health diagnoses and treatment. Diagnoses and treatment are very important.

Clause 3, page 2: If an incarcerated individual is being transferred to the SIU, the institutional head “shall” refer the inmate for a mental health assessment by a professional with those qualifications. You can link that back to my earlier remarks around the issues of isolation.

With respect to alternatives to segregation, an amendment to clause 2, page 1, asks the service to give preference to alternatives to carceral isolation and recognize the role of the transfer of incarcerated persons to community-based institutions. We have already talked about someone with a disabling mental health condition being transferred to a psychiatric hospital, in this case community-based institutions. One such example of that is healing lodges. Senator Bernard talked about the importance of this provision.

We should note that the Parliamentary Budget Officer estimates that will cost a fraction of what Bill C-83 will cost per person. Yet those measures exist and are underused in our system today.

Clause 7, page 3 includes mental health facilities and provincial correctional facilities as transfer options for incarcerated individuals as well. Those broaden the breadth of options available.

Honourable senators, I will wrap up. I want to thank Senator Klyne, the sponsor of the bill, for the work that he and his staff put into this.

I want to thank Senator Bernard and the Standing Senate Committee on Human Rights for the important work they did with respect to the study of prisons and how it has enlightened many of us as we look at this bill.

I thank Senator Petitclerc, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, and the committee for their work on this.

The last big star is Senator Pate, who has dedicated her professional life to understanding these issues and to advocacy around the important constellation of things that we are talking about here, and for her fine work in terms of the amendments being brought forward on this bill.

Honourable senators, I support these amendments and I intend to vote for the bill as amended. Thank you very much.

Honourable senators, I rise today to speak to third reading of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. I admit that I have difficulties with this bill as I am an advocate for ending all forms of segregation or isolation, which this bill simply does not accomplish. However, I feel that our Standing Senate Committee on Social Affairs, Science and Technology did an admirable job in making important amendments that go a long way toward improving this piece of legislation.

Colleagues, in 2018, the British Columbia Supreme Court ruled segregation unconstitutional. In their reasons for judgment, they concluded that the current system:

. . . places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. Some of the specific harms include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour. The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to segregation are subject to the risk of harm to some degree.

The men and women subjected to these torturous conditions are often not in segregation because they pose the greatest risk to public safety, but rather because they have complex needs, including mental health needs, that were previously unmet in the community and that cannot be adequately responded to in a prison setting.

Honourable senators, as was noted by the B.C. Supreme Court, the Office of the Correctional Investigator has documented that half of all women in conditions of segregation in federal prisons are Indigenous. The majority reported that they or a family member had attended residential schools. Two thirds of their parents had substance abuse issues. Half had been removed from their family home. Almost all had experienced traumatic experiences, including sexual and physical abuse, and addictions issues.

The B.C. Superior Court further ruled that segregation violates the equality rights of Indigenous peoples and those with mental health issues. They found segregation to be discriminatory against these vulnerable population subsets. Expert witnesses at the Social Affairs Committee reiterated their concerns that Bill C-83 would do nothing to address the systemic discrimination problem. They told the committee that structured intervention units represent a continued reliance on isolation as a default to try to manage complex needs.

Honourable senators, while Bill C-83 changes the name of segregation, it does not do away with the torturous conditions that are at the root of this harm and whose constitutionality the courts have questioned. Prisoners in so-called structured intervention units, or SIUs, will still continue to spend most of their day in isolation. Contrary to court-established requirements for hard-time limits on segregation, isolation under Bill C-83 can continue indefinitely.

Expert witnesses testified at committee that Bill C-83 represented a missed opportunity to move away from the same regressive patterns of responding to mental health and other needs with measures focused on security restriction and force. I was pleased to note that the committee responded with a series of amendments aimed at fostering credible, effective and humane alternatives to isolation that experts have been recommending for decades and that are increasingly recognized as a constitutional necessity.

First, the committee implemented a requirement that prisoners cannot be kept in a structured intervention unit for more than 48 hours without authorization by a Superior Court. This amendment reflects former Supreme Court Justice Louise Arbour’s recommendation that judicial oversight of segregation is the best way to uphold the human rights of prisoners and prevent human rights abuses. The requirement to make an application to court will also act as an incentive to Corrections Service to find alternatives to isolation is reinforced by other committee amendments that seek to ensure access to existing but underused alternative measures.

Honourable senators, courts have recently made clear that while those with disabling mental health issues should never be isolated, they are too often precisely the ones who end up in such conditions. This often results in devastating consequences. The committee heard that those with disabling mental health issues require care and treatment in a hospital or mental health facility, not isolation in the very conditions known to create and exacerbate mental health issues.

The measures necessary to eliminate segregation for those with mental health concerns already exist in clause 29 of Bill C-83. Clause 29 allows for the transfer of federal prisoners to community health services, including mental health services, for treatment. The Parliamentary Budget Officer estimates that these transfers would cost a fraction of what the cost per person would be for Bill C-83. Despite this, these transfers are discretionary and, in practice, underused and curtailed by regressive CSC policies.

Through an amendment by our Social Affairs Committee, they have added a specific reference to mental health services to encourage use of clause 29 for this purpose. Where an individual is found to have “disabling mental health issues,” the amendment would require that they be transferred to a psychiatric hospital. In a similar vein, the Corrections and Conditional Release Act currently allows CSC to enter into agreements with Indigenous communities to transfer both Indigenous and non-Indigenous prisoners to Indigenous communities to serve their sentence through section 81 or for conditional release through section 84.

The purpose of this legislation was to address the over-representation of Indigenous peoples in federal prisons and the historical circumstances surrounding the incarceration of Indigenous peoples, the need for culturally relevant support, reintegration and the need for Indigenous peoples who have greater control over matters that affect them. These provisions are also, however, rarely used in practice.

Honourable senators, given the Correctional Service of Canada’s stated support for section 81 agreements and the provision’s current reference to non-Indigenous prisoners, the committee’s amendments to sections 81 and 84 seek to facilitate access to these measures. Where Bill C-83 would have restricted sections 81 and 84 to only Indigenous governing bodies and Indigenous organizations, the committee’s amendments expand them to ensure that both Indigenous and non-Indigenous community groups can also enter into agreements to support Indigenous prisoners as well as prisoners from other marginalized groups in the community.

Honourable senators, when prisons rely on isolation, whether that’s called segregation, structured intervention units or some arbitrary term, those who suffer the most are women with mental health issues and those who are racialized, including Indigenous and Black prisoners. The committee’s amendments aim to put in place credible alternatives to isolation and requirements to use them as first steps toward an end to isolation by any name for all.

I would like to thank all members of the Social Affairs Committee, especially our colleague Senator Pate, for their good and necessary work on this bill.

Honourable senators, I rise today to speak on Bill C-83, an Act to amend the Corrections and Conditional Release Act and another Act.

I believe that the segregation of some inmates from the general population is necessary, either for their own safety, the safety of other inmates or staff. What concerns me is that we are ignoring the real-life consequences of what Bill C-83 will mean for inmates and staff.

A little over two months ago, on March 28, Mr. Jason Godin, representing the Union of Canadian Correctional Officers, testified about the impact to two commissioner’s directives on segregation policies, specifically CD-709 and CD-843. He said:

Many of the inmates currently managed within segregation units are highly vulnerable and are segregated for their own protection. In order to provide them with the amount of interaction prescribed within the new bill, they will require direct and constant supervision from an already limited number of correctional officers and health-care staff.

Conversely, the inability and inequality of management of inmates will lead to consequences like those seen in Archambault and Millhaven institutions, where inmates were murdered in separate incidents in early 2018.

My colleague Senator Poirier raised this matter with Minister Goodale at the Social Affairs Committee on May 8. She asked the minister:

Are you familiar with the situation and have inmates’ lives been lost as a result of the changes that have been made to segregation policies? Have you been briefed on the issue? Are you aware of it? Do you expect that this will become worse once Bill C-83 comes into force?

Honourable senators, unfortunately, the minister did not clearly answer these questions. We therefore have no confirmation of whether inmates are already dying as a result of the change in segregation policy. This is where I believe that we may have a point of agreement among senators with respect to a reasonable amendment.

I ask: Should Members of Parliament, senators and the public not at least be aware of how many inmates have died or been seriously injured as a result of being transferred into or out of structured intervention units?

I believe that the answer should be obvious. It is very important that we know how many inmates or staff have died or have been injured in a given year as a result of being transferred into structured intervention units.

Therefore, I propose a simple amendment. I propose that the minister be required to report to Parliament annually about any death or serious bodily injury that, in the opinion of the minister, may be related to the transfer of the inmate in or out of a structured intervention unit.

I also propose that such a report should include the circumstances in which this may have occurred and reasons for the transfer of the inmate.

Honourable senators, I believe that this is the least we should expect if we believe in transparency. The minister is already obligated to report to the Parliament in section 95 of the Corrections and Conditional Release Act on the operations of the correctional service. This amendment would add a specific requirement to report on deaths and serious injuries in custody.