Moved third reading of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, as amended.

He said: Honourable senators, I begin by acknowledging that we are on the unceded Algonquin Anishinabek territory. As the sponsor, I am pleased to speak at the third reading of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. I want to thank the members and chair of the Standing Senate Committee on Social Affairs, Science and Technology for their focus and efficiency in providing a thorough examination of the legislation. The main thrust of the bill addresses the way the Correctional Service deals with prisoners who must be separated from the general population for reasons of safety. The current system used by the Correctional Service of Canada in such cases is referred to as administrative segregation.

Bill C-83 will replace administrative segregation with an advanced approach, mainly structured intervention units, or SIUs.

The new SIU system allows for inmates to be separated from the general population for safety reasons, ensuring that they engage in meaningful social interactions with others and participate in correctional programs, mental health care and rehabilitative interventions — all aimed at safe reintegration as soon as possible.

The Social Affairs Committee heard a good deal of testimony about problems and tragedy with the current system, administrative segregation, going back several years. The committee heard that the current system has been overused and misused, and that inmates in administrative segregation generally do not receive the programs, interventions and mental health care that could otherwise improve their situations and help them rehabilitate and safely reintegrate. Everything we heard at committee about the problems of the past and the present substantiates the need for change. Some would declare that, had SIUs been in full effect, the number of problems and issues heard would have been dramatically mitigated, if not prevented.

When compared to administrative segregation, Bill C-83 is far advanced in its approach to separating prisoners from the general population. Prisoners receive a health care assessment — and now the health care provider will have autonomy and independence in that regard — and the inmate will have access to a health care advocate with a reasonable level of privacy. It provides prisoners in SIUs with at least four hours out of their cell every day, double that which is currently provided while in segregation. Two of these hours will be reserved for meaningful social interaction, compared to the current regime, which offers none at all.

The bill is clear that an inmate may only be in an SIU if there is no 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.

Bill C-83 also includes a new provision that aims to substantially minimize, if not eliminate, the use of strip-searches being conducted as a matter of routine versus requiring a valid reason to search. The committee heard compelling testimony about the impact of strip-searches on prisoners, generally, and specifically about prisoners who have histories of sexual abuse. We also heard that inmates sometimes choose not to leave and participate in visits or programs for fear of being subjected to a strip-search when they return.

Honourable colleagues, I’m sure we all understand the importance of ensuring that people in federal prisons are prevented from smuggling drugs or weapons into a penitentiary. However, efforts must be found or made to find other ways to prevent this from happening. The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, known as the Bangkok Rules, call for the development of alternatives to strip-searches. Bill C-83 does just that and will give CSC the legal authority it needs to start using body scanners, the same technology used at airports. The impact of introducing body scanners to assist with searches will not only deter attempts to smuggle and be impactful in that regard, but it will also dramatically reduce the number of strip-searches.

Bill C-83 also strengthens the review process. In addition to the ongoing access to the ombudsman for federal offenders, the Office 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 Correctional Services, by virtue of section 18 of the Federal Courts Act.

Through its perusal and study of Bill C-83, the standing committee made several valued amendments. A key amendment of the committee requires that within 24 hours of being admitted into an SIU, a mental assessment will be conducted by a qualified professional and, if required, the inmate will be removed from the SIU to the appropriate mental health services. A similar amendment of the committee requires mandatory mental health assessments for all inmates within 30 days of placement in a penitentiary.

The committee also clarified the way systemic and background factors must be considered when making decisions regarding Indigenous offenders. These factors stem from the Supreme Court’s Gladue decision in 1999. One amendment made at the committee adds the specific ideas of family history and adoption history. Another seeks to clarify that factors should not be used to increase someone’s level of risk but may be used to decrease it.

These provisions alone will not end the overrepresentation of Indigenous peoples in Canadian prisons, but they are certainly positive steps in the right direction all the same, and they will narrow the gap.

A further positive development from the committee’s study includes the amendment to permit social and support organizations for Canadians for minority communities based on religion, age, sex, ethnic origin, sexual orientation, colour, gender identity and expression, or disability to become involved when a prisoner is released and is reintegrating into the community. The importance of these changes broaden the section “Indigenous offenders” to address overrepresentation faced by all minority Canadians, such as prisoners of African descent. As Senator Bernard noted during second reading, this group represents 9.3 per cent of people in federal penitentiaries in Canada, despite representing only 2.9 per cent of Canada’s population.

Perhaps the most significant amendment added at committee is a requirement that all SIU placements be authorized by a Superior Court after 48 hours. Correctional Service Canada must file with the court each time an inmate is admitted to an SIU, and the burden of proof will lie with Correctional Services. This would be in addition to the oversight measures already in the bill, including enhanced internal review and, as mentioned previously, binding independent external oversight, appealable to the Federal Court.

While I support the use of judicial oversight in principle, I am aware of the concerns this amendment will have on the workload of Superior Courts. To give some idea of the activity, statistics from Correctional Service Canada show that while the number of inmates separated from a prison’s general population at any given time is coming down, there are annually approximately 5,000 placements in administrative segregation lasting more than 48 hours.

Honourable senators, no one wants to cause additional delays in a court system that already has a full slate, especially when the courts and the Correctional Investigator have not ruled or recommended judicial review. But if the government examines this proposal and determines, in consultation with the provinces, that it is doable, then I would recommend it be done.

Some might wonder why we need a system for separating inmates from the general population in the first place. Separation, in any form, is a last resort, and Bill C-83 is clear that SIUs should only be used when there is no safe alternative and for as short a time as possible.

It’s important to keep in mind that the potential dangers in correctional institutions are real and that some form of separation as a last resort is necessary in the interests of balance and safety. In the words of the B.C. 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.

I agree with the view expressed at committee that greater efforts should be put into successfully developing alternatives and off-ramps to minimize the need for separation. I also concur with Catherine Latimer, Executive Director of the John Howard Society, who told the committee that, in some cases, we’re talking about “very active, aggressive, violent people.” Some of the alternatives proposed, such as sending people to healing lodges instead of SIUs, would be “a venture of significant risk.”

There will always be a need to separate prisoners for reasons of safety. The question is how to do that in a way that is deemed both humane and constitutional.

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.

Regarding constitutionality, several court cases have found constitutional defects with the current system of administrative segregation, but those rulings disagree about what fixes are needed and they are all under appeal.

To emphasize, those rulings were about the current system of administrative segregation, not SIUs. No court has ever weighed evidence and rendered a decision about Bill C-83. The Superior Court, in as many words, said that if you:

. . . change the length of time that prisoners in administrative segregation are locked in their cells and the social contact to which they are exposed, that will affect the maximum time a person should spend in segregated confinement.

In other words, the court told us that by making the kinds of changes proposed by Bill C-83, constitutional concerns should be addressed. The Charter Statement should also give us good reason to believe that Bill C-83 is constitutional.

Honourable senators, Correctional Services Canada is now operating in a situation whereby, as things currently stand, the current system of administrative segregation is due to be invalidated by the courts in B.C. and Ontario on June 18 this year.

The government recently asked the B.C. Supreme Court for an extension on the date to accomplish these goals but was denied.

It’s not entirely clear what will happen in those provinces if the current system is eliminated without anything to replace it. I am again reminded of the cautionary comments by the B.C. Supreme Court justice declaring that an alternative system for separating prisoners must be in place to provide safety for inmates and others within a penitentiary. Bill C-83 provides that way forward.

In an op-ed about C-83, Lisa Kerr, a Queen’s University law professor with expertise in correctional issues, said:

For inmates, the worst effects of the social, occupational and sensory deprivation of solitary stand to be alleviated under the new regime.

As the President of the Union of Safety and Justice Employees, Stan Stapleton said:

Bill C-83 definitely won’t solve everything, but it’s a worthy next step.

His union represents the interventionists, the people whose job it is to work with people in federal custody and help them rehabilitate.

Senators, this bill was thoroughly studied and amended in the other place and our Social Affairs Committee interviewed a number of witnesses and made several further modifications for the government’s serious consideration.

The SIU system in Bill C-83 is unquestionably far better than administrative segregation. It will be accompanied by $450 million in new resources so that the Correctional Service of Canada can safely provide programs, interventions and, importantly, enhanced mental health care.

Bill C-83 certainly won’t eliminate the need for prisons, much of which stems from our social ills, nor will it resolve the issues within our corrections system, but it will go a long way to being a model for separating inmates from the general population in our prisons.

A lot more work needs to be done. I look forward to coming back in the fall and joining our other senators in making progress toward eliminating those societal ills and advancing toward a better corrections system with a high vacancy rate.

Bill C-83 is a genuine improvement with separation in a way that addresses how to do it in a way that is humane and constitutional. Honourable senators, I support Bill C-83 and wish to see this legislation passed to allow for the other place to put the Senate’s recommendations into action.

Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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