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Corrections and Conditional Release Act

Bill to Amend--Third Reading

June 12, 2019

Honourable senators, our duties with respect to Bill C-38 are twofold. First, we have a duty to represent marginalized groups.

At second reading, I shared my expectation that senators visit segregation units before voting on Bill C-83. I thank those honourable senators who exercised our right of access pursuant to section 72 of the Corrections and Conditional Release Act to meet with Canadians isolated in segregation cells.

The relative ease with which senators can enter prisons belies the general lack of scrutiny, oversight and transparency of Correctional Services and how completely the Correctional Service of Canada can control of lives of those inside.

Our right of access brings a corresponding obligation to take into account the consequences of isolation, by any name, and to be aware of how laws passed with best intentions can break down in a culture that has routinely failed to uphold these laws.

While supporters of Bill C-83 tout new legislative obligations and reporting requirements for CSC, witnesses at committee made clear that the culture of disregarding human rights and prisoners’ well-being is deeply rooted in CSC, and Bill C-83’s measures will not prevent human rights abuses unless there is a fundamental culture shift toward upholding human rights and the rule of law.

For a practical example of this, we need look no further than the evolving revelations of CSC’s failure to notify police despite having known for some six months and perhaps as many as seven years that a male staff member was sexually abusing women prisoners at the Nova prison for women. This failure to report has resulted in the loss and possible destruction of evidence and could well mean that no one is held responsible for the abuse perpetrated against these women.

Recent constitutional cases have found that rules on segregation are more honoured in the breach than in the observance and that existing guarantees of meaningful human contact for those in segregation too often amount to cursory words exchanged through a meal slot.

Second, we also have a duty to scrutinize the constitutionality of legislation. Court decisions have raised serious concerns about the constitutionality of Bill C-83 since our colleagues in the other place last voted on it.

In recent months, the Ontario Court of Appeal has stated that the government failed to “. . . adequately explain how Bill C-83 would address the constitutional infirmity” associated with segregation and that it remains unclear how Bill C-83 will remedy this constitutional breach. This is despite amendments to the bill in the other place to attempt to strengthen its review provisions.

Constitutional experts at the Social Affairs Committee as well as 100 legal academics and experts in a joint letter to this chamber have reiterated these concerns. They issued a clarion call to address one of the bill’s major constitutional flaws — the lack of independent review of CSC decisions to segregate prisoners — by implementing judicial oversight.

Witnesses identified judicial oversight as the only reliable way to shift the oppressive culture at CSC and prevent the continued violation of Charter and human rights. For instance, Dr. Ivan Zinger, Canada’s Correctional Investigator, described CSC as “an organization that is known for its limited openness, transparency and accountability” and urged us to amend Bill C-83 to ensure oversight of CSC in order to change its culture, identifying this as the single most important amendment the committee could make to uphold human rights.

Reflecting research that the harms of segregation can begin after only a few hours in isolation, the committee established a requirement for CSC to apply to seek judicial authorization to keep someone in a structured invention unit for more than 48 hours.

Contrary to CSC’s assertions that judicial oversight would be ineffective and place too great a burden on the court system, the process could be expeditious, and the decision maker would be competent to address relevant questions of law and have the authority to make any orders required to remedy improper decisions about continued confinement.

Furthermore, the Supreme Court of Canada recently underscored that judges have obligations to make sure detention is justified. In the Myers case, the court confirmed the requirement that judges conduct bail reviews on a timely basis. That case affected an estimated 23,000 individuals. CSC claims that while there are currently approximately 300 men and no women in segregation, last year they segregated prisoners approximately 5,000 times.

When we requested a breakdown of these numbers by region, gender, race and reasons, we were advised that no such disaggregated data was available or that it would be difficult to obtain. The Correctional Investigator, on the other hand, provided the requested data broken down by region, race and gender — data that demonstrates segregation placement numbers that Superior Court judges across the country would be more than capable of reviewing.

Colleagues, the claim that judicial oversight will impose too great a burden on CSC is reminiscent of similar concerns raised when the Charter first came into effect, namely that it would impede the ability of police to react quickly by requiring them to read people their rights or apply to courts for warrants. We now know that this is not the case.

There is no reliable evidence that judicial oversight of segregation will impede corrections or clog up the court system. Corrections routinely calls in the system when it wishes to further penalize prisoners. Ashley Smith was taken to outside court multiple times to face charges, many of which we subsequently learned were likely unfounded. Not once during the year she was segregated in federal prisons were the current — inadequate as they are — procedural safeguards followed to review her segregation. The mental health issues generated and amplified by her isolation and punitive treatment were labelled as her bad and criminal behaviour.

The requirement to apply to court to authorize this extraordinary and harmful treatment will encourage CSC to find alternatives to isolation. It will also place the decision of whether to prolong isolation in the hands of the institution we rely on to uphold Charter rights for all.

In past years, the courts have taken steps to curb the use and limit the harms of segregation. They have recognized Canada’s international obligations and interpreted Canada’s constitutional imperatives by reference to internationally recognized minimum standards, including those established by the Mandela and Bangkok Rules. They have drawn attention to the current system’s discrimination against Indigenous peoples and those with mental health issues and developed constitutional requirements related to time limits on the use of segregation.

Bill C-83 does not reflect these bare minimum constitutional requirements, let alone make strides to end the harms of isolation. The committee’s amendment will allow courts to ensure Charter rights are upheld, both as they review any individual cases CSC may provide before them and in future assessments of the constitutionality of structured intervention units.

Courts must be allowed to play their crucial constitutional role of safeguarding the rule of law and the rights of all individuals, particularly those who are most vulnerable and marginalized in prisons such as women, youth, Indigenous peoples, other racialized individuals and those with disabling physical or mental health issues.

If these amendments do not remain as an integral part of Bill C-83, we leave the task of upholding human rights to CSC. Courts have already exposed various examples of what such a system looks like. Prisoners like Ashley Smith have been observed, assessed and denied meaningful human contact as they suffer sometimes devastating and irreversible harms associated with isolation.

Without the Senate amendments, prisoners will continue to be isolated for most of the day under provisions that do not guarantee meaningful human contact, without outside scrutiny or evidence that providing slightly more time out of a cell per day will prevent the harms associated with solitary confinement. The minister acknowledged that Bill C-83 could allow conditions amounting to solitary confinement. Without the committee’s amendments, Bill C-83 would rely on CSC’s own employees to recognize when prisoners are suffering, something they have consistently not done in the past.

Such reliance on Corrections is certainly not in keeping with the strict limits on segregation required by the Ontario Court of Appeal to prevent harm before it occurs. Without this amendment, the first review by someone outside of CSC — though still appointed by the minister, and therefore not fully independent — is only guaranteed to occur after 90 days of isolation. Ninety days, when 15 days is recognized internationally as amounting to torture and when courts have found that irreversible harms begin almost as soon as the cell door closes.

Unamended, the decision maker does not have an obligation to visit or even hear from a prisoner during that review, and there is no clear path for a prisoner to bring forward a complaint. How would Ashley or any other prisoner locked in an isolation cell with not even a crayon or a piece of paper, with no access to a telephone unless authorized by the very individuals whose behaviour may be questioned, hope to access such a body?

I firmly believe that, like lashings or bread and water diets, we will soon look back on the isolation of prisoners by any name or means as such an abhorrently dangerous practice that it will seem unthinkable it was ever permitted.

Experts at committee made clear we need a more robust approach to meeting Bill C-83’s stated objective of ending the use and harms of segregation for all. Bill C-83, as amended by the Social Affairs Committee, is a step in this direction.

The committee’s amendments seek to ensure that existing measures in the Corrections and Conditional Release Act intended to provide alternatives to isolation are able to fulfill this role in practice. Segregation is too often the default response to prisoners with complex needs, particularly mental health issues, that could instead be addressed in appropriate alternative settings.

Section 29 of the act currently allows transfers of prisoners to community-based health services. The committee added an explicit reference to transfers to mental health services and created an obligation to transfer anyone found to have disabling mental health issues out of prisons to psychiatric hospitals. Not only can such issues be more safely, productively and humanely addressed in health care settings, but the Parliamentary Budget Officer determined that transferring a prisoner to a psychiatric hospital costs a fraction of the cost of keeping them in an SIU.

The committee also amended sections 81 and 84, which currently permit transfers of Indigenous and non-Indigenous prisoners to Indigenous communities to serve custodial and conditional release —

The Hon. the Speaker [ - ]

Sorry, Senator Pate, but pursuant to rule 3-3(1), it is now six o’clock. I apologize, but I have to interrupt you and ask honourable senators if it is agreed that we not see the clock.

Is it agreed?

The Hon. the Speaker [ - ]

I hear a “no.”

The sitting is suspended until 8 p.m., at which time, Senator Pate, you will be given the balance of your time.

The Hon. the Speaker [ - ]

Honourable senators, resuming debate on Bill C-83 for the balance of Senator Pate’s time.

Honourable senators, please cast your minds back two hours and we will continue.

The committee also amended sections 81 and 84, which currently permit transfers of Indigenous and non-Indigenous prisoners to Indigenous communities to serve the custodial and conditional release portions of their sentences, respectively. These provisions seek to remedy the over-representation and over-classification of Indigenous peoples in prisons that are part of the ongoing legacy of racism and colonialism. The committee’s amendments aim to encourage the use of these provisions and to ensure their accessibility not just to Indigenous governing bodies and Indigenous organizations but also to community groups serving marginalized communities. The goal is to provide access to culturally appropriate community supports for Indigenous prisoners and those from other marginalized groups.

These amendments offer much less than what all is needed to end the use of segregation, but they provide a way forward toward that goal. They put in place conditions by which, under the careful eye of the courts, a culture of human rights may be encouraged.

Believing the promises of CSC may help supporters of Bill C-83 sleep at night, but let us remember that this is the organization that fought to suppress the video evidence that contradicted their narrative of what happened to Ashley Smith, the incidents at the prison for women as well as many other reports of human and Charter violations, including the most recent failure to report multiple sexual assault allegations at the Nova prison for women. Such abuses of power, breaches of the law and unconstitutional behaviour must be corrected and, more important, prevented.

At committee, legal and human rights exports, members of civil society and those who have been subjected to isolation were unanimous in identifying serious flaws with the original legislation, denouncing the anti-human rights culture within CSC and emphasizing the need for fundamental reform of the correctional system. Let us would be together in support of these changes to Bill C-83, while continuing to work to ensure that this legislation can one day achieve its laudable goal of ending the use of segregation altogether.

I want to end with a thank you to all of the senators who have done incredible work to ensure these amendments come forward. I particularly want to thank all of our staff and law clerks who assisted us. Meegwetch. Thank you.

Hon. Larry W. Campbell [ - ]

I have a question for Senator Pate. Would she take a question?

The Hon. the Speaker [ - ]

Senator Pate’s time has expired.

Are you asking for five more minutes to answer questions?

If I may.

The Hon. the Speaker [ - ]

Is leave granted, honourable senators?

Senator Campbell [ - ]

Senator Pate, you were talking about gathering information, analytics and statistics on the population this bill addresses. I didn’t quite understand it. You said that you asked for these but couldn’t get them. Whom did you ask, and did you ever get any reply?

Are you referring to the numbers in segregation in response to how many would have to go to court? I asked the minister’s office for that information and received an overall number. Senator Klyne also received the same number, I believe, which was about 5,000.

I asked for a breakdown of that. At first, my staff were told that it didn’t exist. When I asked for more details, I was advised it would be too difficult to find.

Then I approached the Correctional Investigator to see if they had the same information. They did, so I was able to receive it less than 10 minutes later from the Office of the Correctional Investigator.

The Hon. the Speaker [ - ]

Are senators ready for the question?

Senator Dean has a question.

Hon. Tony Dean [ - ]

Senator Pate, I have before me a letter sent to all senators on June 10, 2019, that was signed by over 100 lawyers and academics. The key message in the letter is that the bill, as amended, has the potential to make positive changes and uphold Canada’s international human rights obligations. There were a number of legal and constitutional supporting arguments.

I would assume you are aware of the letter. If you are, do the arguments they made support the amendments being proposed here?

Thank you for that question. Yes, I received the letter as well as — from the looks of it — everybody. Yes, I think the arguments are well made. If the bill, as amended, is passed in the other place, I think we would then have a bill that could withstand constitutional review.

If we don’t, however — if not all the amendments come through — I think we may not have a bill that’s constitutional. Thank you.

The Hon. the Speaker [ - ]

Are senators ready for the question?

The Hon. the Speaker [ - ]

It was moved by the Honourable Senator Klyne, seconded by the Honourable Senator Bernard, that Bill C-83, as amended, be read the third time.

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)

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