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Corrections and Conditional Release Act

Bill to Amend--Second Reading--Debate Adjourned

December 7, 2021

Moved second reading of Bill S-230, An Act to amend the Corrections and Conditional Release Act.

She said: Honourable senators, in 2019 the Senate sent the substance of this bill to the other place as amendments to Bill C-83. Our collective goal was to safeguard and uphold Charter and human rights and prevent torture and cruel and unusual punishment in Canadian prisons. Despite the well-founded concerns of the Senate and countless others, as well as disturbing evidence that the human rights abuses we sought to prevent would continue unabated, the government rejected the Senate’s work.

The government committed to ending segregation in federal prisons. The government has not kept that promise. People have continued to experience horrendous and irreversible physical, psychological and neurological damage from being held in conditions of segregation and isolation. What is more, those responsible for the implementation of Bill C-83 have not been transparent. We still do not know the full extent of the human, social and financial costs of Bill C-83’s failures.

Honourable senators, we have a constitutional duty to uphold the Charter rights of Canadians, particularly those of minority and marginalized groups. The rule of law and constitutionally protected human rights of all Canadians are threatened when those in federal prisons are treated with cruelty and inhumanity and subjected to unlawful conditions.

Bill C-83 was introduced in the wake of a series of court decisions that ruled the Canadian prison system’s use of segregation unconstitutional.

In particular, the Ontario Court of Appeal recognized that harmful and irreversible effects can begin within 48 hours of isolation. By seven days, brain function can be altered. Canadian courts ruled that segregation of 15 days or more violated the Charter prohibition against cruel and unusual punishment.

According to an analysis of Corrections’ own data by Dr. Anthony Doob, the former chair and current member of the Minister of Public Safety’s advisory panel on the implementation of Bill C-83, more than one out of three prisoners put into isolation have experienced the conditions of segregation and solitary confinement that the government promised to eliminate since Bill C-83 came into force.

What is worse, 1 out of 10 people are still experiencing conditions amounting to torture under international human rights standards. Of prisoners in isolation, 40% are Indigenous and 16% are African Canadian. Once isolated, racialized prisoners are more likely to be kept there longer.

Despite international prohibitions on subjecting people with disabling mental health issues to segregation, Corrections disproportionately isolates people with mental health needs, often characterizing it as “for their own safety” instead of transferring them to appropriate health care settings.

The Parliamentary Budget Office indicates that the price tag for these horrific outcomes due to the implementation of Bill C-83 is more than $2.8 million per prison, per year. Even the PBO could not obtain all the information necessary to accurately ascertain how much putting people in isolation costs taxpayers per prisoner, per day.

Corrections did share, however, that they are planning to increase the number of SIUs — structured intervention units — Bill C-83’s pseudonym for isolation. The plan in 2019 was to have SIUs in 15 of Canada’s 53 federal prisons. Corrections now wants to put an SIU in virtually every prison.

Honourable colleagues, faced with this unrelenting expansion of a system that we know has failed, we have a duty to act. When the Senate debated Bill C-83, we identified three issues at the heart of the constitutional rights violations we are witnessing today.

First, despite 15 days in segregation being recognized as torture internationally, Bill C-83 allows people to be left in conditions of isolation for upwards of 90 days.

Second, despite the new name, SIUs retain conditions of unconstitutional segregation, also known as solitary confinement. Solitary confinement is defined internationally as confinement of 22 hours per day without meaningful human contact. Even if properly implemented, Bill C-83 only guarantees two hours per day of meaningful human contact and four hours per day out of cell. This meagre contact is also subject to a whole list of exceptions.

Third, in the case of unlawful and unconstitutional segregation, the lack of any effective external oversight system means that it is left up to the prison authorities to recognize and correct their own harmful behaviour. They have routinely failed to do so.

During the consideration of Bill C-83, committee witnesses described a culture of disrespect for legal and human rights within Corrections. More than 25 years ago, former Supreme Court Justice Louise Arbour observed, “The Rule of Law is absent, although rules are everywhere.” Judges have likewise found the rules on segregation “. . . are more honoured in the breach than in the observance . . .”

The Ontario Court of Appeal took the unusual step of commenting on the legislation while it was still before Parliament. It asserted that the government had 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 . . .” the constitutional breach.

The Senate amendments, and now Bill S-230, aim to address these issues. Each proposed measure is informed by the testimony before the Social Affairs Committee, bolstered by letters from 100-plus academics and experts, and supported by reports that have emerged since the implementation of Bill C-83.

The two measures introduced for judicial oversight of Corrections are based on Justice Louise Arbour’s recommendations following the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, when she concluded that there is:

. . . no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts.

Canada’s Correctional Investigator, Dr. Ivan Zinger, identified the same problem with Bill C-83, naming judicial oversight as the best hope to shift the oppressive culture at CSC and the single most important amendment the committee could make to uphold human rights.

Bill S-230 requires Corrections to obtain permission from a court to keep a person in a structured intervention unit for more than 48 hours — a time frame after which segregation can begin to cause irreparable physical, psychological and neurological harm.

It also provides that:

If illegalities, gross mismanagement or unfairness in the administration of a sentence renders the sentence harsher than that imposed by the court, a reduction of the period of imprisonment may be granted, such as to reflect the fact that the punishment administered was more punitive than the one intended.

This would allow prisoners to seek remedies and accountability if they are subject to unlawful conditions, including extended isolation and segregation.

Similar to the jurisdiction that sentencing courts have to provide credit for time served in pre-sentence custody, in recognition of the manner in which punitive conditions like isolation render a sentence unduly harsh, this remedy would provide a reviewing court with discretion to reduce a sentence or parole ineligibility.

After studying the human rights of prisoners, concerns regarding human rights abuses with respect to segregation led our Senate Human Rights Committee to likewise recommend judicial oversight.

Dr. Doob and Dr. Jane Sprott researched the effectiveness of the oversight by “independent external decision makers” — IEDMs for short — that Bill C-83 implemented instead of judicial oversight. They concluded that meaningful oversight is not occurring.

IEDMs are appointed by the minister and must rely on Corrections to provide most of the information they use to review Corrections’ decisions to place people in SIUs. It isn’t mandatory for them to visit or speak with prisoners as part of their review, and there is no clear mechanism for a prisoner with a complaint to contact them.

Along with prison law expert Dr. Adelina Iftene, Dr. Doob and Dr. Sprott questioned the lack of transparency around the information about prisoners that is provided by Corrections to IEDMs, that Corrections fails to adhere to all IEDM decisions, and that decisions do not address systemic inequities, as evidenced by the lack of timely desegregation of Black and Indigenous peoples and those with mental health issues.

Indeed, the earliest point at which a person is guaranteed to have a review of their placement in isolation is after they have already been isolated for 90 days — six times longer in isolation than what is recognized internationally as torture.

Corrections has failed to respect even this wholly inadequate timeline. Since December 2019, at least 49 people were held in SIUs for more than 120 days without Corrections referring their cases to an IEDM for review.

The conclusion of the researchers is:

It is hard to have confidence in a process that is supposed to provide “independent oversight” when that process itself, and the logic behind each decision, is not open to scrutiny.

Similarly, the minister’s SIU Implementation Advisory Panel was prevented from doing its oversight work through its initial mandate because Corrections failed to disclose the data it required to analyze the implementation of Bill C-83. Meanwhile, Corrections had the audacity to make public statements indicating that the SIUs were “closely monitored” by the panel.

When Dr. Doob was finally able to access data and issue reports, Corrections then tried to discredit the reports, first asserting that the pandemic was to blame and then that the data CSC provided was invalid because it contained errors. Dr. Doob and Dr. Sprott then produced an analysis that demonstrated that CSC’s claims were spurious.

While judicial oversight would not create a prohibition or time cap on segregation, it would ensure more robust and independent oversight by putting courts in charge of upholding Charter rights. As they have done in constitutional challenges to segregation, courts could safeguard the establishment of meaningful remedies and correctional accountability. By broadening the definition of “Structured Intervention Unit” to include any time that prisoners are being kept separate from the general population in conditions amounting to isolation, Bill S-230 responds to observations from our own senators’ visits to federal penitentiaries; that prisoners are also experiencing the conditions of isolation and segregation outside of SIUs. When this happens, not even the weak rules set out in Bill C-83 apply.

Segregation by other names has long existed — medical observation and dry cells are two well- known examples — but its use has increased since the passage of Bill C-83.

As it rolled out SIUs, Corrections developed new forms of isolation to which SIU rules do not apply, including voluntary limited association and temporary detention ranges and other forms of restricted movement regimes and isolation units.

In addition, the Office of the Correctional Investigator has reported that during the COVID-19 pandemic, entire prisons were subjected to:

. . . near total cellular isolation, fresh air exercise once every two or three days, 20 minutes of out of cell time every other day to shower or use the telephone. . . .

Corrections employed unlawful and unconstitutional practices, in some cases keeping those who were ill in segregation cells, at a time when many provincial jails were working proactively to limit such draconian measures, particularly by releasing elderly and ill prisoners and those near their release dates.

Bill S-230 would ensure that judicial oversight applies to all these spaces and practices, and that prohibitions on segregation and requirements for oversight cannot be avoided simply by calling segregation another name. This is a crucial measure because the Constitution requires that the actual conditions of confinement must comply with the Charter, no matter what name is given to the form of isolation.

Bill S-230 also incorporates measures from the Senate’s Bill C-83 amendments to prevent segregation of those with disabling mental health issues. The amendments reflect international human rights obligations to prevent segregation of this vulnerable group. Countless reports and inquests, including the Ashley Smith inquest jury, have made clear that those with disabling mental health issues belong in healthcare settings, not prisons, and most certainly not in segregation.

In response to the Senate’s amendments to Bill C-83, the government added a requirement that everyone admitted to a prison or transferred into a SIU would receive a mental health assessment from a mental health professional, such as a psychologist or a psychiatrist. Despite this legislative requirement, some prisons have no psychologists on staff. None. Worse yet, our visits have confirmed that this is too often now a tick-box exercise performed by correctional staff, including some known as “behavioural counsellors.”

Moreover, courts have documented that, contrary to the Nelson Mandela Rules and their professional obligations, psychologists employed by CSC are too often “there to sign off on . . . continued segregation rather than to help [prisoners] . . . .”

According to Drs. Doob and Sprott, more than one in four prisoners sent to SIUs are identified by Corrections itself as having a mental health flag. They are likely to spend longer times in SIUs and be sent there not because they are a risk to public safety but because the prison is failing to meet their needs. It is easier to manage them in segregation.

The actual numbers of those in SIUs with mental health issues is likely much higher. Within the prison system, behaviour symptomatic of psychiatric or mental health issues is too often characterized by guards and even medical staff within prisons as attention-seeking, defiant or criminal.

This was the case for 19-year-old Ashley Smith, who was described as dangerous and violent in spite of contrary videotaped evidence and was only recognized as having mental health issues at the inquest after her death. While Ashley’s story is now well-known, many more live similar travesties.

“M” is an Indigenous woman abandoned at birth and sexually abused as an infant and child. She first attempted suicide at 13. She has a history of substance use and has spent most of her life in prison. She remains in custody, even though no longer under sentence, as a result of behaviour for which she was found not criminally responsible due to disabling mental health issues.

In segregation, her headbanging has left “M” with permanent physical, psychological and neurological damage. Her efforts to resist being restrained by staff resulted in Corrections’ effort to declare her a “dangerous offender.” After an extensive review of the circumstances, the presiding judge refused that application.

Corrections puts prisoners in isolation to manage challenging behaviour, yet this setting is the worst place for them. It generates and exacerbates mental health issues, with horrifying and sometimes fatal results.

Bill S-230 would restore the original intent of the Senate’s proposed amendments to Bill C-83. It would allow for mental health assessments by qualified, independent mental health professionals.

Bill S-230 would also require that where a person’s mental health assessment reveals a disabling mental health issue, Corrections must transfer that person to a provincial health setting for appropriate psychiatric care. According to the Parliamentary Budget Officer, in addition to being a more safe, productive and humane response to mental health issues, such approaches would cost a fraction of the cost of isolating individuals in SIUs.

The Senate Human Rights Committee supports these measures, calling for a prohibition on the isolation of people with disabling mental health issues and their transfer to provincial healthcare settings. Bill S-230 would thus help prevent people with complex mental health needs from being abandoned to some of the most harsh conditions of confinement while redirecting them to healthcare settings.

Bill S-230 also amends sections 81 and 84 of the Corrections and Conditional Release Act, which permit transfers of Indigenous and non-Indigenous prisoners to Indigenous communities to serve the custodial and conditional release portions of their sentences respectively. These chronically underused sections seek to remedy the over-representation and over-classification of Indigenous peoples in prisons that is part of an ongoing legacy of racism and colonialism.

Bill S-230 seeks to try to remedy current systemic discrimination by encouraging the use of sections 81 and 84 not only for Indigenous governing bodies and organizations, but also by community groups serving Indigenous and other marginalized communities, including African Canadians and members of 2SLGBTQ+ communities.

Bill S-230 also requires Corrections to take active steps to seek out community groups with whom they can contract agreements for care and custody of Indigenous peoples and other marginalized prisoners.

Drs. Doob and Sprott found that Indigenous peoples and African Canadians continue to be overrepresented in SIUs. Corrections and Parole Board of Canada research also reveals that women are most likely to end up in segregation, particularly Indigenous and other racialized women who have experienced lifetimes of abuse, and those with mental health issues, yet they pose minimal risk to public safety.

Rather, those who most need community and cultural supports are too often characterized by the prison system as dangerous or difficult to manage. This label often begins, as it did for a woman named “L,” with a negative reaction to being strip searched or any other unreasonable stress.

As noted by the Senate Human Rights Committee, discriminatory labelling is exacerbated by systemic racism and sexism in risk assessment tools that use histories of abuse to justify classifying Indigenous women, in particular, as high security risks rather than providing treatment, community connection and healing.

“L” is a member of the stolen generation scooped from Indigenous communities. She was one of a few women labelled a dangerous offender in Canada. The Alberta Court of Appeal struck down the designation and indeterminate sentence after concluding that she was so designated on the basis of what she said and what she wrote, not on the basis of what she did.

It took six and a half years to overturn her designation as a dangerous offender. She spent all but six months of that time segregated. She has now been living in the community for more than 20 years, yet the hundreds of interlaced scars on her body document the self-injury and suicide attempts that her horrific experience of segregation generated.

Bill S-230 echoes both the Senate’s Bill C-83 amendments and breathes life into the Standing Senate Committee on Human Rights recommendations to increase access to sections 81 and 84 transfers as meaningful alternatives to isolating those most marginalized and in need of community support. Serving a sentence in a community is less expensive, supports integration and helps redress cycles of colonialism and discrimination by tackling the mass incarceration of Black and Indigenous peoples. To be clear, honourable senators, Bill S-230 is not everything we need to end solitary confinement — by whatever name — but the bill provides meaningful progress towards that goal. It sets conditions by which, under the careful eye of the courts, a culture of human rights may finally be encouraged within corrections.

Over four decades, I have spent countless hours kneeling on cement floors outside segregation cells, pleading through meal slots with someone’s loved one, child, sibling, parent or partner to stop smashing their heads against cement walls or floors, slashing their bodies, tying ligatures around their necks, trying to gouge out their own eyes, mutilating themselves or smearing blood and feces on their bodies, windows and walls.

I don’t know about you, but I cannot imagine what it is to crave human contact to the point where I might do things that could lead to death in order to trigger a human intervention. The sounds of torment and despair are indescribable. The memories reverberate and always haunt me. How can we adequately describe the horror of trapping a human being in a concrete cell the size of a small parking space or bathroom? From hallucinations and paranoia to crippling anxiety and dissociation, the damage caused by isolation is writ in the minds, bodies and actions of those who survive and evidenced by the subsequent inability of too many to thrive.

Bill S-230 reflects years of work by the Senate on the issues of prisoners’ human rights, and I want to acknowledge and express my appreciation for the vital role that so many of you, Senate colleagues, have played in monitoring the implementation of Bill C-83 and pushing for the legislative changes that I bring forward today.

Bill C-83 effectively shielded corrections from the already minimal safeguards and oversights that previously applied to segregation by changing its name to structured intervention units, or SIUs. Senators’ statutory right of access to prisons under section 72 of the Corrections and Conditional Release Act became one of the few remaining ways to seek to hold correctional actors accountable. Some of you will recall that minutes after Bill C-83 passed without the Senate amendments, senators, including Senator Colin Deacon and our so dearly missed Senator Forest-Niesing, proposed a plan to visit federal penitentiaries to monitor the implementation of Bill C-83 and overall conditions of confinement. To date, many of us have visited federal prisons to meet with prisoners and staff and to learn from those affected first-hand by the laws we pass. Though temporarily halted by the pandemic, when the public health situation allowed us to resume visits this fall, what we heard only underscored the urgent need to bring this legislation forward. Although her own health precluded her from joining us, Senator Forest-Niesing followed our visits, and our final phone conversations included discussions regarding the tabling of this bill — one that, but for her passing, she might herself have presented or, at the very least, co-sponsored.

In closing, I want to propose a short title for this bill, and that’s “Tona’s law.” Tona is a woman with whom members of the Standing Senate Committee on Human Rights met during our visit to a forensic psychiatric hospital in the Atlantic region. Tona spent 10 years in federal custody, all in segregation. The result: A diagnosis of isolation-induced schizophrenia. Her psychosis is directly linked to her extended periods in prison segregation cells and the post-traumatic stress associated with the tortures of that isolation. Tona implored us to take legislative action to end segregation and get women and people with mental health issues out of prisons and into appropriate mental health services. She suggested we might call it “Tona’s law.” Those who know Tona’s story will be pleased to learn that, with the support of our mental health team, she is now back in the community. But for current health restrictions, she might well have been here today to meet all of you.

Honourable senators, we did incredible work together in 2019 to bring these provisions forward. Since then, too many have experienced conditions of confinement so awful that we regularly receive prisoner requests for assistance to access medical assistance in dying. Others have tried and some have succeeded in escaping their situations by suicide. This is happening despite our Charter and the rhetoric of bureaucrats. These are real people, most of whom went to prison fully expecting to work on the issues that brought them there so that they might ultimately rejoin society. In the names of those who have had their lives taken by segregation and solitary confinement, in the names of the many more like Tona who have survived and are fighting to ensure no one else experiences these tortuous conditions, let us join together to finish what we started. I look forward to your support for the passage of Bill S-230.

Hon. Pierre-Hugues Boisvenu [ - ]

Senator, you used the word “torture” several times. Do you have an idea of the number of complaints the Correctional Investigator has received about torture in prisons, in federal penitentiaries, and do you know how many of these complaints were founded?

The use of “torture” comes from the international UN rules on the treatment of prisoners and from the special rapporteur on torture and detention. That definition is one that the courts have then used — the 15-day limit, as anything beyond that can amount to torture. Yes, there have been complaints put in through the Correctional Service of Canada. I do not have the exact number at my fingertips. I do know that the Correctional Investigator of Canada has investigated many. I do know that when Dr. Doob — who was actually the chair of the minister’s advisory committee to review these structured intervention units — couldn’t even get the data himself nor could other members of the committee, and when they did finally get data and saw just how many times — and I mentioned the number of times, I think it was 49 or more — people were held for six times the 15-day limit that was put in place, even then corrections tried to say that in fact their documentation was problematic. So part of the challenge — and I think it’s something that all of us would be interested in seeing — is how to actually hold accountable the Correctional Service of Canada to do the job it’s supposed to do. With almost one-to-one employees per prisoner, presumably we’d see a lot more of that information being made available in a more transparent and accountable way.

Senator Boisvenu [ - ]

I visited penitentiaries in Quebec — not in the other provinces — and it is understood that when someone mentions the word “torture” over and over, they are referring to situations in third-world countries or totalitarian states. However, if we are using the word “torture” in Canada, we need to provide some scientific data to give it substance. When I talk about the number of women who are assaulted in Canada, I use data to back up my claim and to say that there was a specific number of women who were murdered or a given number of instances of attempted murder. If you are using a strong word like “torture” in the context of federal penitentiaries — we are not in Mexico here — don’t you think that you should back up these claims with real, meaningful data to give your bill some credibility and to make sure that the use of this word will not be challenged?

I absolutely agree, and if you believe that any of what I have said or any of the documentation is inaccurate, I would welcome you to show me that evidence.

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