Moved:

That, in relation to Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, the Senate:

(a)agree to the amendments made by the House of Commons to its amendments; and

(b)do not insist on its amendments to which the House of Commons disagrees; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise to speak to the message we have received from the other place regarding Bill C-83.

This bill proposes a number of changes to the Corrections and Conditional Release Act, including the creation of a new system of structured intervention units, or SIUs, to deal with inmates who pose safety risks in the general population of an institution. This legislation was introduced by the government in October 2018.

It was studied and amended in the other place, with the most notable amendment, in the context of SIUs, being the addition of a system of binding external oversight by independent adjudicators.

We received the bill in March. The Social Affairs Committee studied it and proposed additional amendments, which were received by the other place last week. Now we have a message from our colleagues in that chamber indicating that they agree to several of the Senate’s amendments, either verbatim or with slight technical changes, they disagree partially with two amendments and they disagree with five others.

The proposals retained in whole or part by the other place will have significant positive effects. These include mandatory mental health assessments within 30 days of intake for all inmates and within 24 hours of placement in a SIU.

The requirement to include family and adoption histories when considering systemic and background factors involving Indigenous inmates; also that these factors may result in a lower — but not a higher — risk level designation.

The requirement to use an airport-style body scanner wherever possible to minimize reliance on strip searches and a new emphasis on alternatives to incarceration in the Correctional Service Canada’s guiding principles.

These additions are significant improvements and reflect the considerable and valuable contribution of many senators in this chamber. Further, these amendments will help Bill C-83 achieve the government’s objective of safe and effective rehabilitation.

Turning now to the amendments that were considered but ultimately declined in the other place, there are two relatively similar amendments that recommend applying existing approaches used for Indigenous corrections and expanding them to other groups. This would apply to section 81 of the act, which allows for community-run healing lodges, and section 84, which allows for community supported release. Both of these amendments have proven valuable and successful in an Indigenous context. The idea of expanding them to other groups that are overrepresented in federal custody is worthy of serious consideration.

While the government agrees with the principle of these amendments, such approaches would require extensive consultations to determine, among other things, which groups would be interested, where capacity exists and how the experience of the relatively few Indigenous communities and organizations that run section 81 facilities can be shared more broadly. The answers gleaned from consultation must be found before such approaches are entered into law, not after.

The government also respectfully disagrees with an amendment that would require Correctional Services to provide the transfer to a provincial hospital of an inmate with a “disabling mental health issue.” As a positive development, the government has increased funding for external mental health beds in the 2018 budget. And the use of provincial hospitals may be appropriate in some circumstances.

However, it can be difficult to find provincial hospitals willing and able to house and treat federal inmates. A change that would see a significant number of people from federal correctional institutions transferred to provincial hospitals requires first further provincial consultation.

To be clear, the law already allows for these kinds of transfers where possible and appropriate, and where recommended by medical professionals, but the law cannot pre-empt the professional judgment of the health care providers who work in corrections. It is important to preserve their clinical independence.

The government is also respectfully declining an amendment that would allow sentences to be shortened, on application to a court, should correctional personnel commit acts or omissions deemed to constitute unfairness in the administration of a sentence. Of course, there are a great many people working in federal corrections who are committed professionals doing excellent work. If and when this is not the case, inmates have recourse in the form of grievances or lawsuits which could result in discipline or dismissal of the wrongdoer. The idea of retroactively short-circuiting court-imposed sentences in these circumstances would be a major policy change, one that would require extensive consultations with a number of stakeholders, including victims’ groups, as well as provincial partners and other actors in the justice system. As well, parliamentarians in both chambers should have the opportunity to study it at greater length.

The government also respectfully disagrees with the recommendation to have the new system reviewed by a parliamentary committee after two years rather than five. A five-year time frame gives the new system time to get off the ground and be fully implemented. It will ensure that Parliament’s review is more meaningful when it does happen.

In the interim, however, the minister will soon be appointing an advisory panel to monitor implementation of the SIUs as they roll out. That panel will be able to visit sites, meet with inmates and staff, provide feedback to the commissioner, and sound the alarm to the minister or to the public if something is really not working as it should. Of course, parliamentary committees don’t need legislation to tell them what to study. If a committee of either house wants to review the SIU system in two years, they are perfectly free to do so.

Lastly, government respectfully disagrees with the proposal to institute judicial oversight of all SIU placements after 48 hours. I am aware that there has been a great deal of focus on the other place’s disagreement with this proposal in particular. The argument has been made that, without this amendment, the bill is inconsistent with the Charter of Rights and Freedoms.

I will therefore focus my remarks on why I am confident that, even without judicial oversight, Bill C-83 is consistent with the Charter.

Let me start with the issue of judicial oversight. The Minister of Public Safety recently sent a letter to all honourable senators setting out his concerns with the proposal to get a judge involved at the 48-hour mark of every SIU placement. I share his concerns about the impact of such a requirement for provincial Superior Courts.

In 2017, our Legal and Constitutional Affairs Committee published a report entitled Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada. That report highlighted numerous reasons for delays in our justice system and proposed a variety of approaches that, taken together, could help address the issue. Many honourable senators will be familiar with this report so I won’t go into its details. My point is simply that, at every level, our justice system has a full workload. Any measure that risks adding to the workload of provincial Superior Courts should be taken with caution and with a clear sense of what the implications will be, particularly on the provinces. At the very least, further reflection demands that we should know what these implications are when proposing legislation.

To get a general sense of the caseload we’re talking about, we can consider the fact that, on any given day right now, there are between 300 and 400 federal inmates in administrative segregation. The median length of stay is 11 days. If the numbers are remotely comparable under the new SIU system, we would be looking at thousands of 48-hour reviews every year. It is not clear what form these reviews would take, whether they would involve a paper review or an actual hearing, what kinds of submissions the parties would make or how long the process would last. If it’s intended to be a serious process, it would have to be more than just a quick rubber stamp.

To avoid compounding the problem of court delays, new judges would have to be appointed. The government estimates that 35 to 40 independent adjudicators would be required to review SIU placements at 48 hours. One cannot know whether the number of Superior Court judges would be similar, but that’s exactly the problem. We should know and must know before moving ahead with something of this magnitude. Increasing the number of Superior Court judges means amending the Judges Act and that means having the provinces amend their corresponding legislation. Naming more judges means more spending both federally and in the form of judges’ salaries and benefits and provincially in the form of facilities, administration and support staff.

We don’t know whether any or all of the provinces would be willing to amend their legislation and devote additional resources for this. Parliament cannot impose a measure that affects the resources of provincial Superior Courts to this extent without prior consultation with the provinces. We must be sure that provinces are prepared to make the necessary legislative changes and allocate necessary funds. Clearly, the time for those negotiations is before, not after, imposing a requirement for judicial oversight in Bill C-83.

Should this chamber insist on this amendment, despite the implications and lack of prior consultations with the provinces, court delays would multiply. By the time the federal and provincial governments are completing their budgetary and legislative processes and the new judges were in place — assuming every jurisdiction gets on board — we may already have dug our judicial system quite a hole.

Another issue to consider is that judges are appointed permanently to a specific court and can only hear cases in their jurisdiction. Any unexpected changes or long-term evolution in the locations where SIUs arise or any future changes to the law could lead to insufficient judicial capacity in one province and excessive capacity in another.

The system of independent external decision makers, however, offers flexibility to adjust their number and location as required. In other words, there are considerable practical problems with the proposal to implement judicial oversight at this stage of the legislative process without thorough consultations.

Another key point is that, while courts have not examined the new system proposed by Bill C-83, several courts have issued decisions about the existing system of administrative segregation. Not one has said that judicial oversight is necessary or required. In fact, the Ontario Superior Court said precisely the opposite. According to the court:

The reviewing tribunal can have adequate independence without having all the attributes of a judge.

The court went on to say that internal review is preferable as it is more expedient.

Moving to the United Nations now: When addressing solitary confinement, which involves conditions far more restrictive than those contemplated in Bill C-83, the United Nations standard minimum rules for the treatment of prisoners, known as the Mandela Rules, require “independent review and not judicial oversight.” Let me repeat that: Mandela Rules require independent review, not judicial oversight.

In addition, when the Correctional Investigator specifically addressed Bill C-83, he recommended the independent chairperson model, which is a system of independent adjudicators appointed by the minister. The bill provides for this independent adjudication by way of independent external decision makers, so-called IEDMs.

I’d like to stress at this time the independence of these external decision makers. Work is currently under way and the government is seeking to appoint experienced members, lawyers, mediators, civil servants, many of whom will likely have experience working on other boards, tribunals or commissions. The law requires that they not have worked at Correctional Services in the five years preceding their appointment and that they have knowledge of administrative decision-making processes. Throughout the review process, their work will be entirely independent from public servants and political actors.

The IEDM process is in addition to the review by the warden at five and 30 days and by the commissioner at 60 days and every 60 days thereafter, alternating with the reviews of the IEDM. 

It is clear, honourable senators, that judicial oversight is not the only way to protect the rights of inmates. It is plainly not the only path to Charter compliance.

I appreciate that some honourable senators would feel more comfortable with Bill C-83 if a judge were systematically part of the process. This sentiment is linked to the desire to ensure the constitutionality of the bill. I’ll turn now to the question of constitutionality.

The very nature of the laws that govern our correctional system is that they place restrictions on a person’s freedom. It is, therefore, inevitable that they engage certain Charter rights and that they be subject to legal challenges. Neither I nor anyone else in this chamber can substitute our conclusions for that of the justices who may be called upon to evaluate Bill C-83’s provision at some point in the future, should this bill pass, but there are good reasons to agree with the government’s position that Bill C-83 is constitutional. I’d like to get to that.

I acknowledge that some in this chamber may end up having a different perspective on the constitutional analysis. The government and I may not persuade all of you and I respect that. Before I get into the legal analysis, I’d like to make a few points about what I see as the Senate’s role in considering the judicial oversight amendment that the house has decided to reject.

If there’s one thing we know, it’s that constitutional law is arguable, particularly in the abstract. In some instances, Senate amendments brought on constitutional grounds can limit court challenges to federal legislation. At the very least, such concerns may prompt the government and the other place to think twice as was done, for example, in 2016 for Bill C-14, and now for Bill C-83, where many changes were, in fact, accepted. However, Charter compliance issues are rarely black and white. In my view, at this stage, it is neither fair nor balanced to assert with little nuance that Bill C-83 is not constitutional without the judicial oversight amendment, as though the matter was settled law. In fact, frankly, it is nowhere near settled law.

Where there is a lingering ambiguity, once the Senate has made its concerns clear to Canadians, the government and the other place, the appropriate forum to resolve the issues with finality is the judicial branch. This is uniquely an environment where each litigant has a guaranteed procedural right to make a full case with the benefit of an exhaustive evidentiary record before an impartial decision maker. The courts are best equipped and constitutionally empowered to assess, with the benefit of complete arguments from both sides, whether there is a limitation to a protected right or freedom and, if so, whether the breach is justified in a free and democratic society.

With respect to Bill C-83, the government is confident its constitutionality will be upheld. The government’s rationale involves the following considerations.

Let us first look at the litigation surrounding administrative segregation, the current approach for dealing with inmates who cannot safely be housed in the general population.

In the last few years, the Ontario Superior Court, the Ontario Court of Appeal and the Supreme Court of British Columbia have all rendered decisions about the constitutionality of administrative segregation. The Ontario Superior Court has made findings on a related class action. These are important rulings and they can definitely inform our deliberations. However, if we try to apply them directly to Bill C-83, we run into several significant obstacles.

For one thing, there are many inconsistencies between the various court decisions. In the class action, for example, the court found breaches of the Charter section 7 protections of life, liberty and security of the person, and section 12, which prohibits cruel and unusual treatment. However, in the case brought by the Canadian Civil Liberties Association in Ontario, the Superior Court found that the law does not violate section 12, and it found that a change to the oversight mechanism would be sufficient to bring it in line with section 7.

The Ontario Court of Appeal did find a section 12 violation but upheld the rest of the initial ruling. That contrasts with the findings of the court in B.C., which did not find a violation of section 12 but did find broader infringement of section 7, as well as infringement of section 15, which protects equality rights.

As for the direction provided by the courts, the Ontario court favoured internal review of placements in administrative segregation, which it said can meet the constitutional standard for fairness as long as the review is conducted by a correctional officer who does not report to the initial decision maker. In B.C., on the other hand, the court found that the reviewer must be external to correctional services.

The B.C. court ruled that segregated inmates have a right to counsel at review hearings and that administrative segregation is prohibited for inmates with mental illness and/or disability, although the court did not define those terms.

On these points, the courts in Ontario have not made equivalent findings. In fact, the class action specifically involves inmates with serious mental illness, yet the court did not agree that their placement in administrative segregation resulted in an immediate Charter breach.

There are also inconsistencies in regard to the length of time that inmates in general may spend in administrative segregation. The Ontario Superior Court had no cap. The B.C. court had a cap without specifying a limit. The Ontario court capped at 15 days, while the judge in the class action case found that Charter breaches occurred after 60 days for inmates voluntarily in administrative segregation and after 30 days for involuntary placements.

Understandably, one of the reasons the government has appealed the various rulings is the need to reconcile all of these discrepancies. If anything, going back to my comments about the Senate role at this stage in the process, the collection of cases pertaining to the now invalidated administrative segregation provisions shows that this is a highly complex field of law that is evolving and is far from being settled or black and white.

Bill C-83 proposes to replace that system with SIUs, segregated intervention units. In due course, the courts may ultimately review the new regime on its own merits, which brings me to the next difficulty with applying these court findings to Bill C-83. The litigation is ongoing. We are currently awaiting a decision from the B.C. Court of Appeal about the findings in that province, and when that comes, it is quite possible that at least one of the parties will appeal to the Supreme Court of Canada.

In the case involving the Canadian Civil Liberties Association, leave to appeal to the Supreme Court is already being sought and the class action is also under appeal. In other words, there is no judicial finality about any of this — a point that was raised in the letter from the Honourable Ministers Goodale and Lametti earlier this week.

If the task were simply to modify the existing system of administrative segregation to comply with the court findings, we wouldn’t know which of the findings to comply with or which findings might end up being overturned or altered on appeal.

Crucially, though, Bill C-83 does not propose simply to modify the existing system. The court’s analysis and findings have all related to administrative segregation. Bill C-83 introduces a new system of segregated intervention units that differs in a substantial way from the practice of administrative segregation. We cannot presume that limitations placed by the courts on the use of the first system apply equally to the second.

I know there have been questions about whether the differences between administrative segregation and SIUs are truly significant, so let’s examine those differences.

Under the new SIU system proposed in Bill C-83, inmates will be offered twice the number of hours out of the cell, meaning a minimum of four rather than two. They will have far greater access to dedicated programs and interventions. They will be offered at least two hours of meaningful human contact every day. With the current system of administrative segregation, inmates have minimal access to programs and other rehabilitative interventions and meaningful interactions with other people can be rare.

“Meaningful human contact” is a term drawn directly from the United Nations Mandela Rules regarding the treatment of prisoners. In SIUs, meaningful human contact will include interactions with staff, volunteers, elders, chaplains, visitors and other compatible inmates. The distinctions between the two systems are more than significant. They are, in fact, fundamental.

Further, the bill includes a review of SIU placement at five working days by a correctional officer with the authority to overturn the initial decision, as well as an external review if inmates don’t get their minimum hours out of the cell and meaningful contact after five consecutive days. The current system only provides for review under the authority of the warden, and the latter is not bound by the reviewer’s decision.

For all of the reasons I’ve outlined — the inconsistent court findings, the ongoing appeals and the fundamental differences between administrative segregation and SIUs — the court decisions do not allow us to reach any definitive conclusions about the constitutionality of Bill C-83. We must, therefore, examine the bill on its own constitutional merits.

As outlined in the Charter Statement prepared by the Minister of Justice, the provisions of Bill C-83 that deal with SIUs potentially engage sections 7, 12 and 15 of the Charter.

Section 7 provides the right to life, liberty and security of the person may only be limited “in accordance with the principles of fundamental justice.” Because the transfer of an inmate to an SIU would impose additional constraints and conditions on the inmate, it would engage their residual right to liberty and potentially their right to security of the person.

The question, therefore, is whether the limits on these rights permitted by Bill C-83 are in line with the principles of fundamental justice.

As the courts have found, one of the principles of fundamental justice is procedural fairness, and Bill C-83 contains numerous elements to provide for procedural fair decision making. To begin with, the grounds for initial placement and continued confinement in an SIU are clearly articulated. Within one working day, an inmate must receive oral reasons for their transfer and written reasons within two working days.

As indicated in the letter sent by Minister Goodale, internal reviews of the SIU placements move continually up the chain of command from the initial decision made by a staff member to the reviews by the warden on the fifth and thirtieth days and subsequent reviews by the commissioner. This supports procedural fairness by ensuring that reviewers are outside the circle of influence of the person whose decisions they’re reviewing.

Crucially, for the first time ever in Canadian federal corrections, Bill C-83 creates a system of binding, independent external oversight with the creation of the independent external decision-makers.

The independent external decision-makers will intervene when an inmate has not had four hours out of their cell or received two hours of meaningful human contact for five days in a row or 15 out of 30. The external decision-makers will also review placements when a health-care professional’s recommendation is not being followed, and at the 90-day mark and every 60 days thereafter for any inmate who still remains in an SIU.

The bill requires Correctional Service Canada to provide external decision-makers with any information they request. Within reasonable time limitations, external decision-makers must provide all the information they were considering to the inmate. Inmates are entitled to make written representations, and decision-makers are entitled to communicate with them. All decisions by the independent external decision-makers can be reviewed by the federal court. Even without the involvement of a provincial Superior court, these measures combine to create a review system with substantial protections for procedural fairness.

Another important principle of fundamental justice under section 7 of the Charter is that limits on liberty and security of the person may not be arbitrary, overbroad or grossly disproportionate. According to the Supreme Court of Canada, arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. Overbreadth is a matter of whether the law is so broad in scope that it includes some conduct that bears no relation to its purpose. Gross disproportionality refers to situations where the deprivation of rights is totally out of sync with the objective of the measure.

With Bill C-83, there is a direct link between any limits on liberty and security of the person, and the purpose of the segregated unit. There are several provisions designated to ensure that an inmate’s confinement in an SIU remains closely and rationally connected to the law’s objectives at all times.

The bill clearly establishes that the reasons for transferring someone to an SIU are to protect the security of the penitentiary and the safety of the people in it, as well as to prevent interference in ongoing criminal investigations or serious disciplinary investigations. Inmates may not only be transferred to an SIU if there is no reasonable alternative, they must be transferred out as soon as possible. These limitations are backed up by the review process I’ve outlined, which exists in part to ensure that any continued confinements remain directly connected to the bill’s security objectives.

Closely related to section 7 rights is section 12 of the Charter, which prohibits cruel and unusual treatment. Canadian courts have found that incarceration is not per se cruel and unusual, including when inmates are transferred to conditions that are more restrictive than those of the general population in the prison. As explained by the Supreme Court of Canada, such treatment may be cruel and unusual in circumstances where its effects are so excessive as to outrage standards of decency. Therefore, the material conditions of detention are crucially important.

On this point, it is worth noting that the various courts have examined the existing system of administrative segregation and have disagreed about where it violates section 12. Compared with administrative segregation, the conditions of detention and SIUs will be significantly improved. As well as being entitled to twice as much time out of their cells and meaningful human contact for at least two hours every day, inmates in SIUs will benefit from significant investments that the government is making in mental health care and rehabilitative services.

Over the next six years, the government has allocated $448 million to accompany the implementation of this bill. That includes approximately $300 million to hire hundreds of new employees, including parole officers, program officers, Aboriginal liaison officers, behavioural counsellors and others, specifically to provide programs and interventions to inmates in SIUs. Also, $150 million over six years will be spent hiring new mental health professionals to work in SIUs and throughout federal corrections.

This funding reinforces provisions of Bill C-83 that protect the independence of health-care providers within the corrections system and empower them to intervene when they believe an inmate should be transferred out of an SIU or have their conditions changed for medical reasons. Once again, there will be regular internal reviews and binding independent external oversight to help prevent any individual inmate from falling through the cracks. All of these services and resources, and the entitlement to meaningful human contact every day, support the government’s position that Bill C-83 is consistent with both sections 7 and 12.

Finally, as noted in the Charter statement, Bill C-83 potentially engages equality rights protections under section 15. This section of the Charter prohibits discrimination, including on the basis of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability. There is no question that certain groups are overrepresented in federal penitentiaries. That includes Indigenous peoples, people of African descent and people with mental illness. It is important that the laws governing our corrections system includes safeguards to avoid adverse effects on particular groups, and, indeed, Bill C-83 does.

Under Bill C-83, each inmate’s circumstances and experience of placement in an SIU will be individually and repeatedly assessed. The bill requires Correctional Service Canada to consider systemic and background factors when making decisions affecting Indigenous inmates.

The mental health investments and the enhanced role of medical professionals will help ensure adequate care for inmates with mental illness. SIUs will be subject to subsection 87(a) of the existing act requiring consideration of an inmate’s state of health and health-care needs. Bill C-83 expands subsection 4(g) of the current act, which requires that CSC respect and be responsive to the needs of the full diversity of its population.

For these reasons, Bill C-83 complies with section 15 protections of equal rights, as well.

In short, the measures introduced in Bill C-83, which include robust review mechanisms, are designed to ensure that SIUs will be used as intended: as a last resort, for as little time as possible, in the interests of safety and rehabilitation.

Senators, I thank you for your attention to this point. I’ve gone on at some length because these are important matters and this is an important bill. While I appreciate the intent of the proposal to add judicial oversight, appropriate procedural safeguards for the new SIU systems can be put in place without placing additional burdens on the courts and provinces.

I hope I have made clear why I believe Bill C-83 is consistent with the Charter and why judicial oversight of the SIU placements is unnecessary and, for practical purposes, undesirable.

Before I conclude, there is one final and more basic point that should be emphasized. Quite simply, this bill will make our corrections system better than it is right now. I say this as a former deputy solicitor general of some 30 years ago, when I see how the system has evolved to this point.

The new system is designed to provide continued access to interventions and programs even when inmates are separated from the general population. A new system and new resources will mean better mental health care for federal inmates, including those separated from the general population, as a better early diagnosis and treatment that could potentially prevent and reduce the need for separation.

The new system will be overseen by independent external reviewers with decision-making authority as opposed to the current system’s review mechanisms, which are entirely internal. The new system entitles inmates to twice as much time out of their cells and meaningful human contact for at least two hours every day, unlike the current system where there’s no legal requirement to offer any meaningful contact at all.

Those are on top of all the other elements of Bill C-83, which I’ve not focused on in this debate. Those include the introduction of patient advocates, protection of professional independence of health-care workers, mandatory consideration of systemic and background factors for Indigenous inmates, use of body-scanner technology to reduce the need for strip searches, reintroduction of the principle of least restrictive measures as consistent with safety and greater access to recordings of parole hearings for victims of crime.

Let me be clear: This will not solve all of the problems of Correctional Service Canada, some of which involve addressing fundamental issues of organizational culture. It may not go as far as some honourable senators would like or do exactly what some honourable senators would like it to do, but it will make the federal corrections system better. It represents a significant reform to current practices. The rights of inmates will be enhanced with the passing of this bill.

This bill has benefited from deliberations in this Senate. This house has made its concerns clear to Canadians, the government and the other place. Ministers Goodale and Lametti have heard the issues raised by the Senate and have engaged in a discussion that doesn’t have to end with this bill. The debate over this bill clearly demonstrates an interest among us for improving Canada’s corrections system. That’s a very good thing.

If we want to, we can come back in the fall and develop new and innovative measures to further strengthen Canadian corrections, but today I believe the Senate should defer to the elected chamber and the government its ultimate accountability for the policy choice it has made.

To insist on further amendments in the final days of this Parliament could put the benefits of the bill in peril, with the direct impact on the inmates whose well-being is addressed. If we don’t adopt this bill, there could be a serious legislative vacuum as early as this summer when the current law is set to expire. A responsible government cannot allow this to happen.

The reality that inmates sometimes need to be separated for safety reasons has been acknowledged by the Correctional Investigator, by the John Howard Society, by the courts and by former inmates themselves. In the words of the British Columbia Court of Appeal:

Administrative segregation or a more appropriate alternative regime must be in place to protect inmates who would be exposed to risk in the general population and to provide safety for persons who work in penitentiaries.

Bill C-83 is that more appropriate model. Even if it is not what all honourable senators would consider ideal, I would suggest that we accept this message and make Bill C-83 law.

May I ask you a question?

Of course.

I’m somewhat familiar with the bill, but I was busy dealing with Bill C-69 so I didn’t have time to get into the details. I’d like to talk about the independent panel. I have a few questions on that.

I was interested to hear you say that the Mandela Rules call for independent oversight and not judicial oversight.

I’d like clarification about the independent review panel. My concern is how independent will they be? Will they be part of the department? And to whom will the panel report? I was pleased when you said that they won’t have been able to have worked for Correctional Service Canada for five years prior if they’re appointed.

I’m also wondering, will independent panel members have access to the prison and will they have access to prisoners in privacy?

I thank the honourable senator for the questions. Obviously not all of the prescriptions of work have been developed, but it is the intention of the government that those appointed will be appointed through an independent process, some of the criteria of which I’ve spoken.

The prohibition of a five-year absence from corrections is designed to ensure that there is not a more recent experience with or employment in Correctional Service Canada. The Correctional Investigator recommended the independent arm’s-length investigative or oversight approach. That is the one the government has adopted. It’s not dissimilar to administrative oversight in other areas of public administration and is designed to ensure that there is both intimacy in their work environment in prisons and meeting with prisoners, but they are not incorporated in the organizational structure of Correctional Service Canada.

Would you accept another question, honourable senator?

Of course.

In listening to you carefully, two things struck me.

The first one is that the system, when it evolves to be more humane, it evolves because outsiders, outside organizations challenge it. The system by itself doesn’t have the dynamics to police itself, to meet the standards of the Mandela Rules and others. The Mandela Rules are a minimum. If you meet the Mandela Rules, you’re not in the dream world. They are the bare minimum to maintain human dignity. That’s what the Mandela Rules are.

So the system itself is not able to move forward. You mentioned that yourself, and I appeal to your former experience.

We have this bill because there have been all those challenges and all those court decisions: the Supreme Court, the appeal courts, Ontario, B.C., and maybe another one next week. It seems to me that if the government wants to address, in good faith, the need to improve the system, why doesn’t it ask the Supreme Court if this bill meets the threshold of all those decisions that seem to be nuanced from one another? Then we would know that we would not involve ourselves again in another round of changes. Meanwhile, the people in the prisons are bearing the cost of being the object of challenges in court. That seems to me to be the reasonable approach.

The government has had an opportunity since it has to defend itself in all those court hearings, so it seems to me that it’s the more reasonable approach. There aren’t many precedents whereby the government, which can send a reference to the Supreme Court, has asked the court’s opinion on a bill to make sure that in considering the impact of a bill on the physical and psychological integrity of people, we have the right answer.

Now we patch up one side and then the other. Why should we not get a reference to the court?

I thank the honourable senator for his question.

I’d like to address the cultural change issue before I get to the legal issue. The senator is absolutely right that cultural change is difficult in any institution, but particularly in structured institutions of a command-and-control nature, like military corrections and other services. Cultural change comes with legislative change. We’ve changed immigration law significantly, which I know something about, by establishing independent tribunals and the like over the years. That helped change and sophisticate the culture. So, law is part of cultural change.

Independent oversight is part of change, and this law provides independent external oversight of a process that never had external independent oversight. There too there is a parallel on the immigration side.

I mention this because simply a reference to the Supreme Court does not in itself engender the cultural change that you are suggesting, quite appropriately, needs to take place in Correctional Service Canada, and the leadership of the minister and senior team is designed to do exactly that. That’s on the cultural side.

With respect to the decision by the government not to have a reference to the Supreme Court, the government’s view is that there are a number of court cases involving not the SIU model but the pre-existing model that have the inconsistencies I’ve described, that are well advanced in the appeal process, and there is an expectation that there will be guidance in the next while.

The model being introduced in this bill has not been tested before any court. I expect that it will be. But it is the government’s view that reference to the Supreme Court is not the appropriate way to seek guidance on this bill at this time.

Senator, would you accept another question?

Of course.

As the former deputy minister responsible for corrections, you’ll be well aware that the Corrections and Conditional Release Act when it was introduced was heralded as a new piece of human rights legislation that would embed more than the things you’ve outlined that were supposed to be in place for segregation as it currently exists.

You’ll recognize that there were advisory bodies set up for women prisoners, for Indigenous prisoners, and that many of those were either disbanded by corrections or they dissolved because they basically were not listened to.

The current model and the proposed model in Bill C-83 require corrections to monitor itself and to advise up the chain to get to this advisory body. The minister, before the Social Affairs Committee, acknowledged that there was a concern and a possibility that the conditions in the structured intervention units could become the same as segregation units.

Do you not agree that where conditions amounting to segregation or in any way at risk of amounting to segregation, where they exist, the constitutional requirements are that we meet the requirements of due process, of entitlement to access to a fair tribunal, not an advisory body, and that the courts are in fact the best place to provide that kind of oversight?

Thank you for your question.

In the political culture of Canada over the last 30 years, there have been ups and downs of an engagement for reform mindedness in the prison system. I pay tribute to Ole Ingstrup, first at the Parole Board and then at Corrections Canada, where he led major reforms that were viewed at the time as world-leading.

We can debate at another time how that culture has shifted. With respect to your specific question, it is the model that is inherent in this bill that there be independence of oversight, the IEDM, and that as it goes up the chain, it’s not dependent on the initiating, supervising or initial decision maker.

There is a sense of balance and independence in the process. You are absolutely right, this is going to require a cultural shift and a determination by the leadership of the organization to meet the standards that the bill is now requiring of them. The oversight that I would invite the Senate to undertake is to ensure that the standards that the minister has committed to — that the law will, if it’s adopted, require — are transparently and rigorously brought forward and that this bill actually becomes a lever point for the cultural change that I think you and every senator would wish to see in our corrections system.

Would you accept another question, Senator Harder?

Of course.

Would you agree that if the Supreme Court of Canada determines that in fact segregation or structured intervention units must be reviewed by way of judicial oversight that there will not be any of the procedures that you pointed out, it will be a requirement that will need to be imposed?

The Government of Canada has always accepted the direction of the Supreme Court. My point tonight is that the Supreme Court or any court for that matter has been asked to judge on the provisions of the bill we have before us. There have been judgments made, and I reference them with respect to the existing system. The government has benefited from those judgments in developing the system that we have before us tonight and will be further adjusted as courts provide that guidance.

That is the way that modern governments interact with judicial decision-making.

Honourable senators, I begin by acknowledging that we are on the unceded Algonquin, A-nish-in-‘a-beg Territory.

I am rising to address the message received from the house as the sponsor of Bill C-83, which amends the Corrections and Conditional Release Act.

I could probably start out by saying what he said, but I will endeavour to try to fill in and cover some other trails.

Bill C-83 ensures that, while in a structured intervention unit, prisoners will have full access to programs such as health care, addiction, educational and social services and other necessary programs for their rehabilitation.

In addition to the increased support services that will be provided to prisoners in SIUs, they will be offered at least four hours out of their cell every day, double what is currently provided while in segregation, with two of these hours reserved for hours of meaningful, social interaction compared to the current regime which offers none at all.

The bill is clear that an inmate may only be in the SIU if there is no better alternative. The moment that a reasonable alternative is identified or the inmate no longer poses a safety risk, Bill C-83 requires that they be moved out.

The argument has been made that the structured intervention units are just administrative segregation with a different name. Honourable senators, this argument ignores all the advances that are presented by this legislation, including positive amendments that the government has accepted from the Senate.

When compared to administrative segregation, the SIUs are advanced in their approach to the current regime. As president of the Union of Safety and Justice Employees or USJE, which represents employees who provide rehabilitation, probation and support services to prisoners, Stan Stapleton stated today in a press release:

As a long-standing federal employee of 30 years who has worked in maximum and medium security federal prisons, USJE believes Bill C-83 is a step in the right direction towards reforming the current practice of solitary confinement. It will provide for more meaningful human interaction with individuals, while still allowing for the management of extremely violent offenders.

He followed up with:

This includes greater medical attention, access to programs and more ‘face time’ with correctional professionals, which USJE believes will ensure more effective and lasting rehabilitative treatment for offenders which will directly influence public safety outcomes.

Bill C-83 also strengthened the review process, as Senator Harder related. But I find it to be worth repeating.

In addition to continued access to the ombudsman for federal offenders, the Office of the Correctional Investigator, Bill C-83 adds a review process that provides the binding decisions of an independent, external decision maker, including the right of an appeal to the Federal Court by the inmate or Correction Services by virtue of section 18 of the Federal Courts Act.

I will remind you, honourable senators, that through its perusal and study of Bill C-83, the Standing Committee made several valued amendments and the government has accepted several of these amendments; specifically, a requirement that within 24 hours of being admitted into SIU, a mental assessment will be conducted by a qualified professional, and if required, the inmate will be moved from SIU to appropriate mental health services.

As well, that the person conducting the mental health assessment is a specially trained professional focused on mental health such as a psychiatrist, psychologist, psychiatric nurse or primary care provider with psychiatric training.

Also, that a mandatory mental health assessment be made available for all inmates within 30 days of placement in a penitentiary.

Honourable senators, the Senate has provided extremely important improvements to Bill C-83. All the good that the accepted amendments could do is at risk if we do not support the message.

Regarding humaneness, the new system of SIUs puts heavy emphasis on intervention, meaningful social interaction, programming, and rehabilitation all aimed at the inmate’s unique needs and ultimately safe reintegration into the general population as soon as possible.

Honourable senators, I want to address some of the concerns that I have heard recently from some of you and hopefully correct some of the misunderstandings that have appeared.

I have heard colleagues state that this bill can be killed by the Senate because the void will be filled by the Superior Courts who will do a better job. Senators, if we agree with this approach, I argue that we would be abdicating our responsibility by refusing to address what the government has put before us for a future decision by the Supreme Court.

The reality is that if Bill C-83 does not pass, the Supreme Court will ultimately have to rule on the existing law. There is no certainty at all about what they could decide or would decide.

Even if all the court rulings to this point are ultimately upheld, Bill C-83 is still a constitutionally viable response, as we’ve heard, introducing a new system to replace administrative segregation.

Some senators have stated that the government does not have to do anything because Corrections could have everything proposed in Bill C-83 through policy. From my point of view, we are a parliamentary body being asked to act on a response from government to legislate. If we follow the logic of this perspective, we are woefully ignoring the government’s request to discharge our parliamentary duties.

Honourable colleagues, policy changes are not good enough because they are too easily undone. Bill C-83 establishes requirements in law providing a minimum of four hours out of cell and at least two hours for meaningful human contact every day. In addition to this, introduction of the independent external decision makers does require legislation, as any external oversight mechanism would require a legislative change.

I’ve also heard concerns that the independent external decision maker will be confined to a paper review. Colleagues, IEDMs are federal commissioners who are expressly allowed to communicate with the inmate without hindrance, at any point in time, through writing or in person, and the inmate can make representations directly to them.

The IEDMs are important because it is the very first time that anyone external to CSC will have binding oversight authority over inmate placements. Under the current system, there are hearings, but they are conducted by people named by the warden, and they only result in recommendations that the warden is free to ignore.

IEDMs are important because they are being created solely for the purpose of decision making around continued SIU placement and would have more capacity to meet with inmates.

A lot more work needs to be done, and I get that. I agree with Lisa Kerr, a law professor from Queen’s University who has worked with the BCCLA and the John Howard Society, stating today that, “The bill would be a step forward, in my view. Not a perfect step and not the best step it could have been.”

The message comes at a time when the Senate should accept it with the will and intention of revisiting the issues identified during the study of this bill, as well as other issues and concerns.

I will support colleagues to address outstanding concerns that were not accepted by the government in their message when the Senate returns in the fall. I am committed to making progress toward addressing the societal ills that lead to the overrepresentation of Canadians from minority communities and the continued work necessary for preventing people from ending up in prison in the first place.

Honourable colleagues, Bill C-83 goes a long way in improving the treatment of prisoners and in solving the issues and inherent problems within the CCRA and, finally, by squarely addressing the concerns brought forward by the court rulings.

Honourable colleagues, I support the message on Bill C-83 and ask you to do the same. Thank you.

Question, Senator Pate?

Would the honourable senator take a question?

Thank you very much. And thank you for your eloquent description of the incredible work you put into the amendments as well. They’re certainly wonderful.

You mentioned the Study on the Human Rights of Federally-Sentenced Persons. I don’t know if you’re aware, but because that motion has not come to the floor, in fact there won’t be a report. Were you aware of that?

Honourable senators, I rise to speak to Bill C-83.

I’m sorry to disagree with my colleagues, but the prison system does not just involve criminals. It also involves victims, correctional officers and the general public. I am speaking on their behalf.

As I said at committee report stage, this bill has serious and as yet incalculable consequences not only for the safety of Correctional Service of Canada employees, but also for the safety of the Canadian public and, of course, the victims.

In his speech, Senator Harder talked about mental health. It is too bad that he spent only two minutes on that, since 30 per cent of men and 40 per cent of women in the prison system suffer from mental health problems. However, that is still a far cry from 75 per cent.

The main problem with regard to mental health is that it is the poor cousin in the provincial public health system. It is unrealistic to think that one day the provinces will find a way to resolve the problem of mental health issues in Canada’s prison system.

I will keep this brief. I am extremely troubled by the elimination of what is known as the “least restrictive” measures. The onus was on the government to prove that this change was needed. Furthermore, I fully agree with Senator Joyal’s suggestion of using adjudication instead. We know that the officers of the Correctional Service of Canada are currently locked in a dispute with the government, but this problem should have been resolved with a reference to the Supreme Court, not through legislation.

Representatives of correctional officers are deeply concerned about these changes. It is important to maintain the system’s capacity to make decisions consistent with the protection of society. The Parole Board of Canada needs to be able to make decisions that are necessary and proportionate to the purpose of conditional release. Its decisions must be based on an assessment of the offender’s risk and the gravity of the offence committed.

An approach based on proportionality would have been much more reasonable than this approach based on the least restrictive measures. A proportionality-based approach would have provided greater protection for victims and the public and ensured that the highest-risk criminals went to prison.

In passing Bill C-10 in 2011, the intent of the legislators was precisely to incorporate the concept of proportionality, which has always been central to our legal system.

The government will invest hundreds of millions of dollars to bring this legislation into effect, although the Auditor General, who just completed a fairly comprehensive study on recidivism, has told us that the recidivism rate calculated by the Canadian government is completely inaccurate.

The millions of dollars that will be spent on implementing this bill could have been used instead to conduct a complete assessment of the programs designed to help incarcerated persons. I would remind the chamber that, at this time, inmates end up being reincarcerated four times, on average, and the reincarceration rate hovers around 70 per cent.

Rather than passing a bill that will further liberalize our penitentiaries and endanger people with mental health issues, the people who protect us, and society in general, it would have been much wiser to conduct an in-depth study of the role of the Canadian corrections system and the effectiveness of its programs, and then adopt appropriate measures in order to lower the recidivism rate as much as possible.

The government is once again putting the cart before the horse by thinking that everything will work out fine and injecting money into the system, rather than looking at it with a critical eye.

We obtained the following statistics on correctional institutions in Canada: the recidivism rate in provincial prisons is roughly 60 per cent, while the re-incarceration rate is around 70 per cent.

I believe it’s time to stop investing money in systems managed in silos like prisons and penitentiaries. We have to assess how inmates are treated, the type of programs they’re offered, and the effectiveness of those programs.

In 50 years there has never been an external assessment of the rehabilitation programs in federal penitentiaries. Every assessment has been done by those who administer these institutions. The time has come for us, as a government, to invest $2.5 billion in Canada’s correctional system, in addition to the $500 million envelope.

This bill is not acceptable. What was needed was a bill to make the government conduct a thorough review of how offenders are managed and the record of penitentiaries with respect to mental health. This would ensure that offenders don’t return to jail over and over. Yves Thériault, the Quebec author of Tout le monde dehors!, called our prisons and penitentiaries revolving doors.

The time has come for the government to assess the performance of an organization that unjustly incarcerates individuals, sometimes for far too long, but that all too often also releases those who may be dangerous. This organization, which has not been assessed in 50 years, must absolutely be carefully studied. Thank you.

Senator Boisvenu, would you take a question?

Thank you, Senator Boisvenu, for that overview. Are you aware that, in fact, in the early 1990s there was an external review of all of the therapeutic programs provided for federally sentenced women by Dr. Kendall, that concluded that Corrections should not be running mental health programs, but that they should be administered by provincial or territorial health resources?

Yes. It’s important to remember that in the Canadian corrections system, 8 per cent of inmates are women, because it’s mainly men who commit serious crimes. They are the ones I’m concerned about. What’s more, they are much more likely to reoffend than women.

For several years, I worked with Philippe Bensimon, an eminent researcher who has a doctorate in criminology and 27 years of experience working in and studying the Canadian corrections system. He told me that he had applied for funding to carry out structured research on all of the programs available, but the Correctional Service of Canada always turned him down. In the Canadian corrections system, research tends to be done in-house. As Philippe Bensimon said, that approach allowed the government to prove that the millions of dollars it was investing were actually going somewhere. Furthermore, Mr. Bensimon claimed that the rehabilitation programs offered in our prisons were there for the benefit of the employees who ran them, not the inmates.

Basically, what I’m saying today is that no private company would stay in business under that kind of management. Seventy per cent of inmates in our corrections system reoffend after release, which means that we keep spending money dealing with the same people over and over again. We need to allocate substantial funding to rehabilitation to ensure that criminals don’t keep going back to prison for a third or fourth time.

Honourable senators, the question before us today regarding Bill C-83 and the message from the other place is whether this chamber will stand up to defend a very small, very vulnerable and very unpopular minority: inmates in federal penitentiaries.

I’m not an expert on prison issues. I’ve only visited jails a couple of times, but I think we can easily imagine what being deprived not only of freedom, but of dignity, does to a human being. The annual report of the Office of the Correctional Investigator, in 2014-2015, described segregation:

 . . . as the most onerous and depriving experience that the state can legally administer in Canada . . .

In 1980, the Supreme Court described it as “a prison within a prison.”

This is what administrative segregation is: a deprivation of dignity. In many ways, it is even a deprivation of humanity. Being deprived of all intimacy, freedom of movement and significant contact with other human beings is not human, be it for 22 or 20 hours a day.

There are exceptional circumstances, of course, in which authorities have no choice and they must isolate an inmate. But the Mandela Rules, which Canadian representatives helped draft, as well as superior and appellate courts, have determined that such segregation should not last more than 15 days and that segregation decisions should be independently reviewed after five days.

The problem with Bill C-83 is that it is not designed to balance the needs of jail security and the rights of the inmates. It is designed to maintain segregation as much as possible, making the fewest and smallest changes available so that segregation can remain intact while simultaneously evading legislative and judicial sanction for the time being. Honourable senators, the courts will see through this subtle exercise, and so should we.

If we pass Bill C-83, it will take years before its constitutionality is brought into question. It is true that it is not our role to substitute ourselves for the courts. However, it is our role to protect minorities and there are few minorities as vulnerable as those whom we deprive of freedom.

Of course, they have done wrong and they should serve time for that, but they’re still human beings and they should still be protected by Canadian law. The Charter of Rights and Freedoms does not spare the less popular from its protection. It does not distinguish, discriminate or differentiate in all its application.

When the Senate intervenes to protect minorities, we do not usurp the role of the Supreme Court. We fulfill our duty. We exercise our judgment based on what we know, based on the expertise that brought us to be appointed, based on what we’ve heard as legislators — not as judges — on what we’ve seen and on the court decisions that we have in front of us. We cast our vote, doing our very best with the evidence we have at the time we are called to vote.

Dear colleagues, three years ago, I had just been appointed to the Senate, and senators were debating medical assistance in dying. The Senate had amended Bill C-14 to guarantee access to medical assistance in dying to those suffering from grievous and irremediable pain but where death is not reasonably foreseeable. However, the government rejected that amendment and we had to decide whether to insist on it.

Senator Joyal did an excellent job making the argument that we should insist. In his opinion, it was up to the Senate to ensure compliance with the Canadian Charter of Rights and Freedoms, to the extent possible, and to protect minorities.

Senator Joyal said, and I quote:

We are a country of minorities. Look at us individually where we come from, and there will be more diversity in the years to come. If there is no chamber of Parliament in this Canada — not a democracy, a parliamentary democracy; there is a difference between the two. It means that the elected majority cannot do its will all the time at the expense of the minority. That’s the essential feature of our chamber.

I, on the other hand, made the case that we should not insist and that, in a struggle between the other place and the Senate, the Senate would be the one to come out the loser in the eyes of the public. I continue to make that argument. I did so yesterday during the debate on Bill C-48.

However, in the discussion on medical assistance in dying, I was wrong and Senator Joyal was right. It was the Senate’s duty to help a suffering minority even though public opinion wasn’t on our side. Who knows, actually, maybe Canadians would have supported us.

One thing we know for sure now is that, because the Senate didn’t intervene, sick and suffering Canadians have to petition the courts to exercise their right to a medically assisted death and they have to wait years for a final judgment.

Personally, I don’t want to make the same mistake in this case. Inmates aren’t very popular. That fact alone should prompt us to zealously protect their basic rights as defined by the Charter, rights that we as legislators interpret. We demonstrate our commitment to upholding basic rights by protecting the most vulnerable, despised and misunderstood.

Honourable senators, a few weeks ago, I visited the Laval penitentiary. They don’t call it a penitentiary, however. They call it the Federal Training Centre, except the inmates are not trained for anything anymore. But the name has persisted. Yet, no doubt about it, it is a penitentiary.

For inmates who are in administrative segregation — another fine term invented by prison officials — the wait is, of course, unbearable. There is just no way that a stable person can stay in these small cells for days and weeks without their mental health being affected. For mentally ill inmates the effects can be absolutely irreversible.

As Justice Benotto of the Ontario Court of Appeal put it:

The effect of prolonged administrative segregation is thus grossly disproportionate treatment because it exposes inmates to a risk of serious and potentially permanent psychological harm.

For his part, Justice Leask of the B.C. Supreme Court stated that administrative segregation “. . . is a form of solitary confinement that 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.”

If Bill C-83 is adopted, the situation of segregated inmates may, in the best of circumstances, minimally improve. For the most part, words will change — “structured intervention units,” “independent decision maker” — terms will change, but reality, very little.

Bill C-83 does not attempt to eliminate “the hole” from Canadian jails. It tries to put a bow on it and call it something new. It may make us legislators feel slightly better about the treatment of inmates to let their plight reach the back of our minds once again.

Judicial oversight after 48 hours is much preferable to the system of independent decision makers because the independent decision makers arrive very late in the process, sometimes as late as 90 days — three months — in solitary confinement.

The independent decision makers will be appointed by the minister and their only qualification, according to what’s in the bill, is to have knowledge of administrative decision making processes in general.

Finally, when the government changes, the decision makers eventually change also.

Through their cells’ food slots, these inmates are calling for help. They don’t know much about the Senate’s role, if anything, but we know. We repeat in our speeches that one of the Senate’s fundamental roles is to protect minorities. Well, senators, now is the time to act.

Honourable senators, I will vote to reject the other place’s message. I will do so with the full knowledge that if the “yeas have it,” Bill C-83 may die on the Order Paper, or maybe not.

Seeing as the Government of Canada is not committed enough to the fundamental rights of this vulnerable group, the Senate has no choice but to intervene. If we were content to let the courts deal with this problem, we would fail to reach our constitutionally mandated potential to protect the most vulnerable from the will of the majority.

Some senators are concerned that if Bill C-83 dies on the Order Paper, chaos will ensue in our prisons. There would be a legislative gap and security in prisons will be compromised. This is simply not the case.

The CCLA case that went before the Ontario Court of Appeal led that court to strike down the rules around administrative segregation as unconstitutional. The court proceeded to a suspension of invalidity, meaning it suspended the effects of its declaration of unconstitutionality so as to allow the government enough time to comply. This suspension has been repeatedly extended, allowing more time at each occasion. Despite being struck down, segregation is still operating right now as we speak, and it will continue to operate if Bill C-83 dies, because of this suspension.

Most recently, the Supreme Court of Canada has agreed a stay to ensure that segregation stays in place until it can make a ruling on the constitutionality of segregation. In actuality, the death of Bill C-83 will allow the Supreme Court of Canada to clearly and unequivocally set the constitutional parameters of the Corrections and Conditional Release Act. Throwing in a pseudo-solution like Bill C-83 will do nothing on that front.

When the highest court in the land is seized with this matter, it will examine the legislative intent, our intent. I believe we should reject the message from the other place to convey the will of this chamber, the Senate of Canada, protector of minorities.

Honourable senators, the Ontario Court of Appeal stated:

Public perceptions of the appropriate way to treat inmates have evolved, thanks in large part to the efforts of inmates and their advocates. What was once considered acceptable — the death penalty for example — is no longer. Today, as society has become informed about the harm caused by solitary confinement, the public’s views have changed also.

Honourable senators, as Nelson Mandela said, “No one truly knows a nation until one has been inside its jails.”

Senators, our response to the government’s message on Bill C-83 should reflect the view that what is happening in the isolation cells of Canadian jails, whatever their name, is not worthy of Canada. Thank you.

My colleague Senator Pratte and I have different perspectives on this.

Honourable senators, I rise briefly to urge all of you, especially those who are disappointed in the government’s response, to nevertheless vote in favour of Senator Harder’s proposal that we agree to this response. I realize that we have a duty, as members of this chamber of sober second thought, to look out for those who have been forgotten and the most vulnerable, and not just for those who have the means to hire highly paid lobbyists.

To that end, I want to commend Senator Pate on the remarkable work she has accomplished since her initial work with the Honourable Louise Arbour as part of the inquiry into the prison for women in Kingston. I will add that she is absolutely right to take an interest in matters that affect inmates, including the most vulnerable among them, those who have mental health problems and who are put in forced isolation.

It can be tempting to view prisoners as undeserving of fundamental rights and to dismiss these rights. However, we as a nation are judged by how we choose to treat our citizens. That is all our citizens, including our prisoners.

In the words of Nelson Mandela, who spent 27 years in prison:

No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.

I completely agree with this sentiment.

The Senate listened to stakeholders and noted the serious shortcomings of the current prison system with respect to inmates who are in serious psychological distress or who pose a risk to themselves or to institutional security. It also considered the comments of judges who had to rule on how the correctional system currently treats inmates with mental health issues and who suffer from being in segregation.

With all these elements in mind, the Senate committee proposed various amendments to adequately meet the challenge of respecting inmates’ fundamental rights, and the Senate agreed with the committee. This afternoon, the government and the House of Commons — without taking a recorded division — agreed, on division, to accept many of the amendments but also to reject certain ones. One of the elements rejected was the possibility of having a judge of a superior court determine whether the segregation measures are justified.

To me the lack of any review of decisions to segregate, which are often made hastily by institutional management, is a fundamental omission considering the serious and irreparable consequences of an extended separation. However, as Senator Harder explained in his speech on the message from the other place, and as others explained thereafter, Bill C-83 addresses many of the flaws in the current system and brings in internal and external measures to review administrative segregations, instead of using provincial superior courts.

That said, with all due respect, we’re not here today to decide whether our amendments that were rejected would’ve led to better solutions to ensure that inmates’ fundamental rights are respected or that inmates with mental health problems are better treated, but whether the mechanisms brought in through Bill C-83 are demonstrably unconstitutional and require us, exceptionally, to insist on our amendment, which calls for a review before a provincial superior court judge, rather than the authorities specified in Bill C-83.

The new measures in Bill C-83, which Senator Klyne outlined in his speech at third reading and again today — notably an assessment of prisoners’ mental health at the beginning of their incarceration, and the addition of specialized resources in psychiatric intervention to come up with a treatment plan for people with mental health issues — allow inmates to spend at least four hours a day out of their cells, in other words, double what is currently allowed, and require correctional authorities to refer prisoners with serious mental health issues to appropriate resources. I see these measures as considerable improvements over the situation we have today.

In a tweet posted this morning, Professor Lisa Kerr, whom my colleague Senator Klyne quoted a few minutes ago, said she agrees that these measures are an improvement, although the proposed system is not perfect. She said, and I quote:

Big day in Parliament for C-83. The bill would be a step forward, in my view. Not a perfect step, & not the best step it could have been. But I worry about what a new government could do, & what the SCC will ultimately do.

She’s an expert in these matters.

In my opinion, rejecting the message so the bill dies on the Order Paper would mean maintaining the status quo that had been declared unacceptable by both courts of appeal, because it would be a violation of the basic rights set out in the Canadian Charter of Rights and Freedoms.

Moreover, following last Friday’s Supreme Court ruling, the government was given more time to legally apply the existing act until the Supreme Court decides on whether to grant leave to appeal the Court of Appeal for Ontario’s decision. If leave is granted, the existing law would remain in force until the Supreme Court’s judgment some months from now. However, experts say the passage and coming into force of Bill C-83 would be an immediate improvement for prisoners suffering from mental illness. Based on my own analysis, the new provisions are a vast improvement over the existing system.

In another tweet this morning, the John Howard Society said:

Will the @SenateCA kill Bill C-83 today? Legislative vacuum dangerous for protecting isolated prisoners from serious harm.

Instead of creating a vacuum or maintaining a no longer acceptable system, I rather think that it is better to vote for Bill C-83 and put in place as soon as possible new and beneficial measures, and to leave it to the courts to determine later if the review process is deficient and how it could be improved.

For all these reasons, dear colleagues, I invite you to vote yes to the message. Thank you.

Do you have a question, Senator Pate?

Yes, if the honourable senator would take a question.

Will you accept a question, Senator Dalphond?

Yes.

Senator Dalphond, in all of your years as a jurist, what kinds of arguments would you have accepted if someone brought before you two tweets versus constitutional opinions? Legal experts who voiced one side; and then two tweets on the other side. How persuasive would you find that argument?

Thank you, dear colleague, for the question.

There is no doubt that in a court of law — maybe in the U.S. tweets apparently are official statements from the president. In Canada, I’m not sure that the tweet is a legal document that could be a supporting opinion.

However, experts will be testifying in the courts. They will file briefs, will be cross-examined and there will be a full debate, which we are not having here today. Each of us thinks about these opinions, but we haven’t heard experts. We haven’t seen the briefs. I think the John Howard Society, because it’s very involved in protecting and defending imprisoned people’s rights is telling us to wake up; don’t make a mistake. The system is actually bad, very bad, and this law will provide improvements. Let’s go for the improvement.

That’s what I’m saying. I’m not saying I would be using that in a judgment, I’m just saying that these are opinions that matter. There are people following this file. This morning they are calling us to proceed and go forward. Thank you.

Honourable senators, the message regarding Bill C-83 asks us to pass this bill without the Senate amendments necessary to prevent the violation of Charter and human rights of men and women isolated in Canadian prisons.

Knowing the suffering and the permanent, irreversible damage that isolation can cause, I cannot accept this motion.

As senators with a duty to uphold the constitutional rights of all Canadians, particularly those who are most marginalized, I do not believe that this chamber should accept it either.

Precedent tells us that there are rare cases where it is not only possible for the Senate to insist on our amendments but it is also our duty to those we represent.

For six reasons, the case for upholding the Senate amendments to Bill C-83 is clear.

First, Bill C-83 was not an election promise that Canadian voters gave their elected representatives a mandate to address. Rather, the bill was a response to court cases affirming that segregation is unconstitutional and requiring the government to develop new, constitutionally compliant legislation.

Second, the Senate amendments did not merely seek to second-guess a questionable policy decision. Instead, they addressed clear and serious concerns that the bill will be unconstitutional without them. The Senate was warned of this risk by constitutional experts at committee. We responded with a minimally invasive compromise: Not the end to segregation by any name, particularly for those with mental health issues, as recommended by the United Nations and the inquest into the death of Ashley Smith. Instead, we targeted the minimum constitutional standards required to protect Canadians from conditions of isolation capable of amounting to torture.

Since then, a coalition of 100 legal academics, practitioners and experts wrote in support of those amendments to ensure that the bill not violate the Charter and human rights.

Third, no credible, independent counter to the position that the bill is unconstitutional has come forward. The only legal minds at committee to argue that the bill was constitutional were representatives of the government itself. In making this argument, the government did not pretend that Bill C-83 would ever meet the restrictions that courts have imposed on segregation in order to safeguard constitutional rights. Rather, they argued that even those minimal standards do not apply to Bill C-83 because the isolation it proposes is something different than segregation. This position contradicts what the Minister of Public Safety himself stated at committee when he acknowledged that conditions amounting to segregation could persist within the structured intervention units proposed by Bill C-83.

Fourth, this is not a situation in which the Senate would be standing in for a court by making a decision regarding constitutionality. When supporters of Bill C-83 have urged that the constitutionality of this bill cannot be determined until the Supreme Court has ruled on segregation or perhaps even on the bill itself, they overlook that at least one part of the constitutionality issue has already been settled definitively and against Bill C-83. The government has chosen to accept and not to appeal the Ontario Superior Court’s ruling that in order for segregation to be constitutional there must — must, honourable colleagues — be an independent decision maker who has authority to release the prisoner from segregation after five working days.

As a result, in a situation that the minister acknowledged can persist under Bill C-83, where the conditions of segregation last for five working days, as a matter of settled constitutional necessity, Bill C-83 must include an independent reviewer with authority to release a prisoner. Bill C-83 simply does not allow for this measure. On cross-examination before the Court of Appeal, CSC acknowledged that the earliest point at which the bill’s independent decision maker would be in a position to order release of a prisoner from segregation would be after 12 days, not the five working days required. The courts have accepted that permanent harms can occur within 48 hours of isolation, and the United Nations considers that 15 days in segregation can amount to torture.

The Ontario Court of Appeal has now expressly raised doubts about Bill C-83, stating that the government has not explained how the bill will address this very constitutional flaw.

Fifth, the reasoning in the message from the other place is disturbingly incomplete. The text does not even acknowledge the constitutional frailties. While supporters of Bill C-83 have previously argued that the Correctional Investigator does not believe judicial oversight to be necessary, at the Social Affairs Committee the Correctional Investigator stressed that strengthening oversight was “the” single-most important amendment the committee could make to uphold constitutional rights, specifically naming judicial oversight as the preferred manner in which this could be achieved.

The text of the message states that this form of judicial oversight would place undue burdens on the court system. The evidence on which the government bases this argument is not clear, to say the least. Corrections estimates that about 5,000 prisoners were placed in segregation throughout last year. This number pales in comparison to the estimated 23,000 individuals per year eligible for bail reviews that the Supreme Court of Canada recently affirmed courts are not only capable of but, in fact, must deal with in an efficient manner in order to ensure that constitutionally protected due process rights are upheld.

The actual number of applications is expected to be much lower than 5,000, in no small part due to the reality that the requirements for CSC to apply to court would create an incentive to uphold their responsibility to find workable alternates to isolation and separation. Other Senate amendments refused by the other place aimed to further lower this number by fulfilling recommendations from numerous inquests and inquiries that encourage the more expansive use of existing but currently underutilized alternatives. For example, while accepting amendments to improve mental health assessments that our colleague Senator Kutcher spoke about, they refused the amendment that would require that CSC then transfer those found to have disabling mental health issues out of segregation and into psychiatric hospitals or other appropriate health services, effectively neutering the impact of such assessments.

The Senate worked to rehabilitate Bill C-83, with the provision that corrections must seek permission from a Superior Court in order to keep an individual in a structured intervention unit beyond 48 hours. The government has rejected this amendment, yet has not informed us what alternative to judicial oversight they are proposing in order to meet the constitutional requirements for independent review.

Sixth, the Senate amendments seek to protect constitutional rights of prisoners, a marginalized group that, as Senator Pratte rightly pointed out, lack the voice within the democratic process to exercise their own rights, and that the Senate therefore has a particular duty to represent. Courts have already found the current system discriminatory against Indigenous and Black people and those with mental health issues. These and other marginalized groups are likely to continue to be disproportionately subjected to isolation and its devastating harms under Bill C-83.

Let me be clear, honourable colleagues: If Bill C-83 does not include the Senate’s amendments, prisoners will be better off if it does not pass. If the bill does not pass we return to the current system, which the Supreme Court of Canada has allowed to stay in place until it can rule on the constitutionality of segregation in the coming weeks or months. The current system is abhorrent, but at least it contains certain minimal limits on human rights abuses, the product of years of litigation and human suffering. In particular, there is now a 15-day hard time limit on segregation and the requirement for independent review after five days.

If we allow Bill C-83 to change the name of “segregation” to “structured intervention units,” without judicial oversight, we risk starting back at square one. We will almost certainly hear the same arguments that we have heard in this place that these constitutional limits on segregation do not apply because of this name change. If we pass Bill C-83 in the form that it is being sent back to us, we are handing corrections a system where they have virtually unlimited discretion to keep people in isolation nearly indefinitely. Courts have recognized that harm can start almost as soon as a cell door closes and that anything longer than 15 days is cruel and unusual punishment, which violates section 12 of the Canadian Charter of Rights and Freedoms.

Let us be clear: If we pass Bill C-83 without the Senate amendments, we put the onus of going back to court to once again challenge the use of isolation on those directly and negatively impacted by segregation — prisoners, who too often struggle for access to pen and paper, let alone telephones, legal resources or other external advocacy or representation.

As we worked on this bill together in the chamber and at committee, as we compromised and crafted amendments, as I contemplated my response to the message from the other place, as I stand before you now, I recall events that occurred 25 years ago. On April 22, 1994, women at the Prison for Women in Kingston were unlawfully stripped, shackled and left in segregation cells, naked or wearing only flimsy paper gowns by an all-male emergency response team. Today, the violation of these women’s Charter and human rights is recognized as a travesty and a massive display of force exercised in the face of virtually no resistance.

Many of you will recognize these events as the place where, in many ways, the Senate amendments we debate today began. As she then was, future Supreme Court Justice Louise Arbour was named commissioner of an inquiry into those events. Her approach was clear and unclouded by electoral or political issues. She recognized that the only way to respond to the risks and harms of segregation would be to shift a culture of human rights abuses and denial within corrections toward one capable of upholding the rule of law, something that would require meaningful, external oversight. Justice Arbour concluded: “I see no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts.”

For more than 23 years, this recommendation has remained unimplemented and the culture of corrections has not merely remained unchanged but has become firmly entrenched. Based on expert testimony urging judicial oversight of segregation, we passed amendments requiring correctional authorities to apply to superior courts for permission to isolate an individual for more than 48 hours. We sought to ensure the constitutional rights of prisoners would at last be respected by putting them in the hands of the courts, as Justice Arbour recommended.

There is another reason, however, that I think back to the stripping, shackling and unlawful segregation at P4W in 1994. As the first outside person to go in after that event, I advocated that prison officials release all of the women from segregation and unshackle the one woman who was still restrained and had been for six days. I was advised that I was misinformed about their circumstances and treatment. When I insisted on what I had witnessed myself, I was counselled, cajoled and then cautioned against being so easily “conned.”

To say that moment and its aftermath were a turning point for me is an understatement. It taught me that for the prison officials to respond in such ways, they must believe that information the women and I had about what had happened would either never emerge or, if it did, it would never be believed.

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.” This experience clarified that with the privilege of walking in and out of prisons comes the responsibility of identifying and remedying the violations of human rights that I have witnessed. I do not, and, with the evidence that senators have seen and heard, this chamber does not have the luxury of remaining silent.

We cannot accept and cannot ignore that failing to insist on the Senate amendments means failing to insist on respect for the human and Charter-protected rights of all Canadians. We cannot abdicate our —

Senator Pate, your time is up. Five more minutes, honourable senators?

Thank you, Your Honour, and senators.

We cannot abdicate our responsibility. We should not punt this decision to courts to perhaps resolve in the future, not when we know now that this bill is likely unconstitutional, when we know now that people are suffering and will continue to suffer because of something we might authorize. We have an obligation to do what is right. We have an obligation to stand up for our amendments. Meegwetch. Thank you.

Honourable senators, I was not on the list. I apologize for not having given notice, Your Honour.

The debate that has gone on this evening has been excellent in terms of listening to one side and the other. I want to apologize to those who asked me earlier how I thought I was going to vote with respect to this. I kept indicating that my preference always is that, when government legislation is before us, we should allow the government to govern and see if there is a constitutional question. I have not been persuaded that the constitutional issue is that clear. Knowing judges and courts as I do, I can tell you that there is as good a chance that the Supreme Court of Canada would rule the provisions that are before them in the upcoming CCLA case constitutional as much as they might rule that it’s unconstitutional. There’s no safe predicting of that.

However, having indicated to others before this evening that I was likely to uphold the legislation and to allow the message to go forward, I want to say, quite frankly, I think I’m changing my mind because of the debate that’s going on here.

Difficult cases always cause one to toss and turn. That has been my experience as a judge and one of the reasons why I learned early on not to come to a decision too quickly. You hear lawyers arguing cases in front of you all the time. When a good lawyer speaks first, you often think that’s the end of the case; I’m just going to rule that way. When another good lawyer talks second, then you say, “Well, maybe I’ll go that way.” You end up reserving in order to consider the arguments and perhaps do your own work.

This was one of those situations where I have given careful consideration to the words I’ve heard here this evening. I’ve listened carefully to the debate. I am persuaded by a few points that have been made that perhaps this legislation shouldn’t be allowed to go forward, one of them being that we are being called upon in this case to consider the situation of a very legally vulnerable population. I recognize that there are many people who are placed in segregation, perhaps, who are there for their own protection but also for the protection of others because they have been acting out and might be injuring or threatening other people. At the same time, I’m also pretty convinced that most of the inmates who end up in segregation are probably suffering from some kind of a mental health issue that is not being properly treated.

I was listening to some of the words spoken by Senator Kutcher. I was also looking back at some of the transcript evidence that had been filed with the committee. I can see where the research on that point seems to be very strong.

This legislation contains provisions that would guarantee those treatment programs and services would be provided to inmates. However, I ask myself: Would this bill have benefited Ashley Smith? Would it have benefited Eddie Snowshoe, who our colleague Senator Simons told us about? Would it have benefited Adam Capay, the young man who spent almost five and a half years in solitary confinement and came out of it, at least? We’re not sure he went into it with a mental health problem, but he certainly came out of it with mental health issues; I’m not sure that it does.

The reason I’m not sure it does is because in the provisions before us, there doesn’t seem to be any independent oversight that the corrections services can’t control to inform those who are called upon to look at what they’re doing to believe them when they say, “We’re doing all of that.” Independent oversight is a crucial question.

I said earlier on in one of our discussions that judicial oversight is guaranteed under our Constitution at present. An individual can go to court and, in particular, inmates can go to court and have their reclassification and segregation decisions overturned by a court or reviewed by a court. The time that’s going to take is quite long. It can take years. In addition, they need to have access to a lawyer; they need to have access to a court; they need to have access to the information. There’s nothing in this bill that guarantees that, in fact, they would be informed that they have that right. It may be that by practice that will be the case, but I’m not sure.

One of the issues that I thought about as I was listening to the debate was during the hearings of the Truth and Reconciliation Commission, we toured as many of the residential schools that were still standing at the time that the hearings were going on. 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 still on the walls from where the students, as children, had tried to claw their way out or leave some kind of evidence of their being there.

It was incredibly horrible to look at. It reminded me, as I was listening to this debate, that when there is not an appropriate judicial or independent oversight of those decision-makers who place people in that position, that, in and of itself, is an indication of the inadequacy of the law.

Does this bill provide that kind of guarantee? I don’t think it does.

I recognize, as well, as Senator Pratte talked about and Senator Pate confirmed, that CSC is currently under judicial oversight, with the ruling on the CCLA case that they have to provide access to an independent body to be able to rule on the adequacy or appropriateness of a segregation decision. There has to be a five-day review, and there has to be a maximum 15-day placement, based upon the court’s direction. Whether Correctional Service Canada will actually do that, the courts will find out when the appeal is heard. That being the case, the court will ultimately take that into account when deciding upon the overall constitutionality of the current system.

I recognize, as well, from the information shared with us by Senator Harder that the government believes that judicial resources will be overextended, and there has not been adequate consultation with the provincial court systems that will be at play. But the reality is that, right now, we could have an influx of civil law cases going to court, and the court system could be overwhelmed by that. That’s not going to stop people from going to court, and it shouldn’t stop people from going to court. So the reality is that we go with the best planning we can, and if this legislation says that inmates can go to court, then they have to plan adequately for it.

Overall, this particular message that comes back from the house and the arguments in favour of the message have not persuaded me, in fact, that we should support the message, so my intention is to vote against it. Thank you.

Are honourable senators ready for the question?

It was moved by the Honourable Senator Harder, seconded by the Honourable Senator Bellemare, that in relation to Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act —

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

All those opposed to the motion will please say “nay.”

In my opinion, the “nays” have it.

Is there agreement on the bell? Fifteen minutes.

Is that agreed, honourable senators?

We will return for the vote at 8:57 p.m.

Call in the senators.