Corrections and Conditional Release Act
Point of Order--Speaker's Ruling Reserved
October 24, 2024
I rise on a point of order regarding Bill S-230. I believe that rule 10-7 was overlooked during the Senate’s work on this bill. Bill S-230 cannot be studied in the Senate because it appropriates public funds, specifically in clauses 4, 5 and 11, and therefore requires a Royal Recommendation. Such a bill cannot originate in the Senate.
Rule 10-7 states that:
The Senate shall not proceed with a bill appropriating public money unless the appropriation has been recommended by the Governor General.
The Companion to the Rules of the Senate of Canada offers the following commentary on that rule:
The Constitution states that bills to appropriate funds or impose taxation cannot originate in the Senate. In addition, rule 10-7 provides that the Senate will not proceed on any bill which appropriates public funds that has not been first recommended by the Crown — i.e., accompanied by a Royal Recommendation issued by the Governor General. . . .
The Royal Recommendation is provided only by a minister and only in the House of Commons. This requirement is based on section 54 of the Constitution Act, 1867 . . . .
Section 54 of the Constitution Act, 1867, states, and I quote:
Recommendation of Money Votes
54 It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.
Your Honour, the question we need to be asking is this: Does Bill S-230 involve an appropriation of public funds?
I should mention that, obviously, the purpose of my speech is not to debate the merits of the bill, but rather to ensure that we respect the constitutional obligation arising out of section 54 of the Constitution Act, 1867, which is to get Royal Recommendation when provisions of a bill appropriate public funds, as is the case with Bill S-230.
In order to analyze this issue, it is important to refer to the ruling handed down by our former colleague, Speaker Kinsella, on February 24, 2009. This oft-cited ruling is very useful because it explains the six non-exhaustive criteria for determining whether a bill requires a Royal Recommendation. I believe it is worth reading out those criteria so that senators will have them in mind when I outline my arguments as to why a Royal Recommendation is needed in this case.
I will quote former Speaker Kinsella on the six criteria:
First, a basic question is whether the bill contains a clause that directly appropriates money. Second, a provision allowing a novel expenditure not already authorized in law would typically require a Royal Recommendation. A third and similar criteria is that a bill to broaden the purpose of an expenditure already authorized will in most cases need a Royal Recommendation. Finally, a measure extending benefits or relaxing qualifying conditions to receive a benefit would usually bring the Royal Recommendation into play.
On the other hand, a bill simply structuring how a department or agency will perform functions already authorized under law without adding new duties would most likely not require a recommendation.
Emphasis on “without adding new duties.”
In the same way, a bill that would only impose minor administrative expenses on a department or agency would probably not trigger this requirement.
Speaker Kinsella went on to clarify how to take those principles into account, as well as factors the Speaker must consider in evaluating the need for a Royal Recommendation. Here is what he said about that:
The list of factors enumerated here is not exhaustive, and each bill must be evaluated in light of these points and any others at play. It certainly is not the case that every bill having any monetary implication whatsoever automatically requires a Royal Recommendation. When dealing with such issues, the Speaker’s role is to examine the text of the bill itself, sometimes within the context of its parent act. Of course, the Speaker, in making this assessment, seeks to avoid interpreting constitutional issues or questions of law.
Let’s return to Bill S-230. When it was being studied by the Standing Senate Committee on Legal and Constitutional Affairs on February 15, 2024, the committee adopted Senator Tannas’s motion that the chair request that the Parliamentary Budget Officer provide a cost estimate for implementing the new elements contained in Bill S-230.
The Parliamentary Budget Officer provided this cost estimate in a detailed report dated May 24, 2024. The Parliamentary Budget Officer’s report reaches the following conclusion, as stated in its summary:
The direct cost of new activities required by Bill S-230 is estimated to be $6.8 million annually. However, the bill is also intended to enable policy changes which would require additional resources, including expanding the use of psychiatric care which could potentially cost up to $2 billion annually, depending on how these changes are interpreted and implemented.
Allow me to point out, again according to the Parliamentary Budget Officer’s report, that there are three clauses that authorize spending: the cost of the policy set out in clause 4 of Bill S-230, which provides the authority to implement a policy estimated to cost up to $2 billion, the direct cost of clause 5 of the bill, estimated at $5.5 million annually, and the direct cost of clause 11 of the bill, estimated at $1.3 million annually. Once again, I would underscore that these costs are recurrent.
It is important to mention that, according to the report on the Public Accounts of Canada 2023, the Correctional Service of Canada spent a total of $3 billion in 2022-23. It received a budget of $3.4 billion in 2023-24 and requested $3.2 billion for 2024-25. Bill S-230 requires policies that would raise the total budget of the Correctional Service of Canada by as much as 66%.
On October 2, Speaker Gagné ruled on a point of order as to whether Bill S-15 requires a Royal Recommendation. In her reasons, she mentioned that the mere fact that a bill involves spending is not enough to determine whether a Royal Recommendation is needed. I agree with her. However, Madam Speaker, that is why I invite you to consider the fact that the implementation of Bill S-230 and the potential for spending are not trivial.
If we come back to the six criteria identified by Speaker Kinsella and immediately set aside those that are irrelevant to determining whether Bill S-230 requires a Royal Recommendation, principles or rules 1, 4, 5 and 6 can’t be used as arguments to raise a point of order. I will focus on rules 2 and 3.
As I mentioned earlier, the second criterion or principle is that a provision allowing a novel expenditure not already authorized in law would typically require a Royal Recommendation. Regarding this novel expenditure, I refer you to clauses 5 and 11 of the bill. I will discuss clause 4 a bit later.
The Parliamentary Budget Officer’s report is clear about clauses 5 and 11 of the bill. Clause 5 of the bill provides that section 33 of the Corrections and Conditional Release Act will be replaced by the following new wording:
Duration
33 (1) Any confinement in a structured intervention unit is to end as soon as possible.
(2) A person’s confinement may not have a duration of more than 48 hours unless authorized by a superior court under subsection (3).
Extended duration
(3) On application by the Service, a superior court may extend the duration of a person’s confinement in a structured intervention unit beyond 48 hours if, in the court’s opinion, the extension is necessary for a purpose described in subsection 32(1).
Clause 5 therefore creates an obligation for Correctional Service Canada to obtain authorization from a superior court before incarcerating an offender in a structured intervention unit for a period lasting more than 48 hours. The administrative costs associated with this clause are explained and detailed in the Parliamentary Budget Officer’s report as follows:
In 2022-23, there were a total of 2,056 transfers to a Structured Intervention Unit (SIU). Of these, 1,860 (90%) resulted in a stay lasting more than 48 hours.
We estimate the CSC’s cost per application to be about $3,000, consisting of approximately $1,000 each for case preparation by the CSC, representation by the Department of Justice, and escorting incarcerated persons to attend the hearing.
In total, we estimate that requiring the authorization of a Superior Court to continue confinement in a Structured Intervention Unit beyond 48 hours would necessitate 1,860 applications to Superior Court per year, with an average [cost] of $3,000, for a total cost of $5.5 million annually.
In short, clause 5 of the bill creates novel spending not authorized in the Corrections and Conditional Release Act by creating a new legal obligation for the Correctional Service of Canada to obtain the authorization of a superior court to continue confinement beyond 48 hours. This new obligation would entail a significant financial cost.
In addition, clause 11 of the bill adds a new section. Subsection (1) of that new section reads as follows:
Unfairness in the Administration of a Sentence
Reduction of sentence
198.1 (1) A person sentenced to a period of incarceration or parole ineligibility may apply to the court that imposed the sentence for an order reducing that period as the court considers appropriate and just in the circumstances if, in the court’s opinion, a decision, recommendation, act or omission of the Commissioner or any person under the control and management of — or performing services for or on behalf of — the Commissioner that affected the person was . . .
The Parliamentary Budget Officer estimates that this new section alone will cost approximately $1.3 million a year. According to the PBO’s report, the reason for that is that clause 11 would allow:
. . . persons sentenced to federal custody to apply for a reduction in their sentence based on unfairness in the administration of their sentence.
Again according to the PBO’s report, it is difficult to estimate the exact number of applications that could be brought because there could be many grounds for complaint. The report explains this as follows, and I quote:
There is no clear basis upon which to estimate the volume of applications which could be brought. Incarcerated persons could potentially have a large number of complaints. [The Correctional Service of Canada] reports receiving 20,000 grievances in 2022-23. The Office of the Correctional Investigator (OCI) reported receiving 4,897 complaints. However, a court application would entail significantly greater legal costs and potential benefits for the complainant.
By requiring CSC to deal with new complaints through the courts, clause 11 of the bill creates a new obligation for CSC that is not set out in the Corrections and Conditional Release Act. The use of the courts entails costs that are not authorized under the Corrections and Conditional Release Act, hence the need for a Royal Recommendation. This clause comes with a definite, very significant cost that can’t be accurately estimated.
Now let’s consider the third criterion I mentioned, namely that a bill to broaden the purpose of an expenditure already authorized will in most cases need a Royal Recommendation, in relation to clause 4 of the bill, which reads as follows:
The Act is amended by adding the following after section 29.01:
Transfers to hospital
29.02 If a mental health assessment or an assessment by a registered health care professional concludes that a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, the Commissioner must authorize that person’s transfer to a hospital, including any mental health facility, in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.
Under section 29 of the act, the commissioner already has the discretion to authorize transfers in certain cases. However, clause 4 of the bill significantly broadens this power by creating a new concept, the concept of “disabling mental health issues.”
While giving evidence before the standing committee on November 30, 2023, Senator Pate gave the following reply when she was asked whether Bill S-230 would contain a new definition of disabling mental health issues:
If you look at the current definition in section 37.11 of the Corrections and Conditional Release Act, it talks about the grounds that are considered for determining that somebody has deteriorating mental health. I haven’t proposed a particular definition because this definition is already there, and it talks about refusing to interact with others, engaging in self-injurious behaviour, showing symptoms of drug overdose, showing signs of emotional distress or exhibiting behaviour that suggests they are in urgent need of mental health care. That describes, I think, disabling mental health issues.
As the Parliamentary Budget Officer highlighted, I am compelled to agree that this extremely broad term is open to a broad and liberal interpretation and could apply to a vast number of people in custody.
At the Standing Senate Committee on Legal and Constitutional Affairs, I asked Dr. Dufour, a forensic psychiatrist and head of the Department of Psychiatry at the Philippe-Pinel National Institute of Forensic Psychiatry, how many people in custody could suffer from disabling mental health issues at some point while in prison. He replied as follows:
In my experience outside Pinel, because I’ve practised in several penitentiaries in Quebec and even in regular institutions, I would say spontaneously that most of them have such symptoms at one time or another.
I’d say it’s a little too broad and vague definition.
This means that anyone held in a penitentiary could suffer from disabling mental health issues at some point while in prison and could apply to be transferred to a health care facility or psychiatric unit.
I would also add that the Parliamentary Budget Officer’s report contained numerous estimates of the cost of psychiatric care, before concluding that the cost of the transfers provided for in clause 4 of the bill is estimated at between $1 billion and $2 billion.
I even jokingly suggested, Your Honour, that we should put a red cross on all the penitentiaries to turn them into psychiatric hospitals.
The report does, however, add a caveat with a striking conclusion:
However, the bill only requires the Commissioner of Corrections to authorize the transfer of individuals with disabling mental health issues; it does not require facilities to accept those individuals or require the [CSC] to contract for sufficient capacity to serve all individuals with disabling mental health issues. In essence, the bill may shift discretion to those contracted facilities to determine who they wish to prioritize and admit for care, within the very limited capacity funded by their contracts with the CSC. As a result, this clause can reasonably be interpreted as not giving rise to any direct financial cost.
Clearly, Your Honour, clause 4 would appropriate public funds on a recurring basis because the number of people in custody who would have to be transferred as a result of the new terminology in the legislation could go up.
Now that we’ve discussed the clauses in the bill that would appropriate public funds and authorize novel spending, we should now look at the history of the Corrections and Conditional Release Act. Bill S-230 would make a very significant amendment to the existing framework legislation.
I’d like to point out that Bill C-36, An Act respecting corrections and the conditional release and detention of offenders and to establish the office of Correctional Investigator, which was passed during the third session of the Thirty-Fourth Parliament, was a government bill. The bill was accompanied by a Royal Recommendation.
Honourable senators, in her recent ruling on Bill S-15 on October 2, Speaker Raymonde Gagné ruled that the bill was in order and that consideration could continue. She gave the following as one reason for her decision:
In the case of Bill S-15, a key issue relates to the permitting regime that currently exists under the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act relating to the transport of certain animals. If Bill S-15 is adopted, this regime would be extended to the possession, and not just limited to the transport, of elephants and great apes. Senators supportive of the point of order argued that this would constitute novel expenditures unrelated to the existing act. Senators who thought debate can continue argued that this was a minor adjustment to the existing permitting regime that would not require new spending authority and would fit within the existing structure and purpose of the act, which is broadly to protect certain species. On this point it is interesting to note that when the act was first adopted in 1992, the bill as introduced in the House of Commons did not receive a Royal Recommendation.
We thus face two clear arguments as to whether Bill S-15 can continue before the Senate. While the concerns about the measure are understandable, they can nevertheless be reasonably understood as being limited to matters very directly related to the purpose of the existing act, building on its structure, and complementing it. Coupled with the fact that the original act did not require a Royal Recommendation, there are strong arguments in favour of the continuation of debate.
The fact that Bill S-230 significantly expands the commissioner’s mandate with respect to transfers, creates new obligations for the Correctional Service of Canada by requiring it to obtain authorization from a superior court to continue confinement beyond 48 hours, and requires the Correctional Service of Canada to deal with new complaints through the courts leads me to the conclusion, first, that the bill cannot, to quote your own words:
. . . be reasonably understood as being limited to matters very directly related to the purpose of the existing act, building on its structure, and complementing it.
Second, another necessary conclusion that argues in favour of bringing the debate on Bill S-230 to a close is the fact that the act that would be amended by Bill S-230 required a Royal Recommendation.
These two conclusions combined also preclude Bill S-230 from originating in the Senate, since it does not have a Royal Recommendation.
Before I wrap up, I would like to once again underscore an important point concerning one of our fundamental principles regarding the Royal Recommendation, which I think deserves repeating to everyone.
First, I am sure you will agree that the two houses have not always seen eye to eye when it comes to the Royal Recommendation. The principles set out in a June 15, 2015, ruling of the Speaker of the Senate can easily be applied here. It states, and I quote:
We should also recognize here that the two houses do not always agree as to how this fundamental principle should be interpreted. Almost a century ago, in 1918, a Senate committee considered the issue. One of its main conclusions was that the Senate has the power to amend bills that appropriate a part of the revenue or impose a tax by reducing amounts, but it does not possess the right to increase the sums.
Obviously, I would like to remind senators that this right of the House of Commons stems directly from our Constitution.
The Senate must abide by the constitutional requirements, and I would build on that by saying that the Senate does not have the right to circumvent that fundamental right. I would like to quote another excerpt from the February 24, 2009, Speaker’s ruling regarding the reasons justifying a point of order. It states, and I quote:
The senator raising a point of order has a responsibility to present evidence and explain to the Senate why a Royal Recommendation is required, linking it to what the text before the Senate would actually require, not optional decisions that may or may not be made at some point after a bill is passed.
Let me reiterate that, if Bill S-230 is passed, the wording of clauses 4, 5 and 11 will lead to definite costly expenditures.
In conclusion, Your Honour, in light of the facts that I have raised, I am asking you to withdraw Bill S-230 from Senate consideration because it contravenes rule 10-7.
Honourable senators, I wish to speak today to address this point of order and clarify that its concerns, with respect, are unfounded. Bill S-230 does not spend money directly, nor does it spend money indirectly in an impermissible way.
I want to echo Senator Klyne’s observation just a few weeks ago that with this type of point of order, a major precedent is at stake, and the Senate’s authority to legislate is at risk of being significantly and unduly narrowed. He reminded us:
All senators and Canadians have a stake in this matter in terms of the Senate’s ability to contribute to public policy . . . .
In this regard, Bill S-230 is a clear example of what the Senate in particular can contribute. We all know well that senators play a crucial role in representing and seeking to uphold the rights of marginalized or so-called minority groups — the people most at risk of being excluded from political discourse and government priorities.
Bill S-230 represents vital amendments that the Senate made back in 2019 to improve government legislation on solitary confinement to try to help the government achieve its stated objective of ending the use of segregation. These amendments were rejected by the government.
Senators were so concerned about what would happen without these amendments that, at the suggestion of Senator Josée Forest-Niesing, Senator Colin Deacon and Senator Marty Klyne, we launched an initiative to visit prisons, meet with staff and prisoners and monitor conditions of isolation. Nearly 40 senators have visited federal prisons. The concerns for human rights and Charter rights that we have observed have underscored the urgent need for Bill S-230. Indeed, today’s press release from the Standing Senate Committee on Human Rights underscores this very issue.
I spent last weekend with Tona Mills in Mi’kma’ki, where she discussed her fervent desire to see the practices that killed her spirit ended. Recently diagnosed with terminal cancer, she asked me to please stop what happened to her from happening to anyone else.
I am rising on a point of order.
Senator Plett, you cannot raise a point of order on a point of order.
Fair enough. The senator is delivering her speech. She is not speaking to her point of order.
Senator Plett, we are hearing Senator Pate on a point of order. These are her arguments.
Bill S-230 is a product of work with and on behalf of some of those most marginalized, victimized, criminalized and institutionalized that the Senate is uniquely placed to carry out. As we debate this point of order, we must not lose sight of this fact and of the consequences that will follow for senators and Canadians if the Senate’s abilities to legislate are unduly constrained.
The basic principle that the Crown must agree to public expenditures before they can be approved by Parliament is expressed in rule 10-7 of the Senate Rules, which states:
The Senate shall not proceed with a bill appropriating public money unless the appropriation has been recommended by the Governor General.
As noted by the Speaker in her recent ruling of October 2, this rule embodies some of the obligations imposed by sections 53 and 54 of the Constitution Act, 1867. In her ruling of October 2, the Speaker referred to a range of non-exhaustive factors that may be taken into account when determining whether the financial initiative of the Crown comes into play, citing previous precedents contained in Speaker’s rulings of February 24, 2009, and December 1, 2009. The Speaker stated:
Factors that can be taken into consideration when determining whether a bill requires a Royal Recommendation include whether it contains a clause appropriating money, whether there is a novel expenditure not already authorized in law, whether the bill broadens the purpose of an expenditure already authorized by a Royal Recommendation, whether there is a relaxing of criteria to qualify for a benefit, whether the bill merely structures how a public agency will perform functions it can already undertake without imposing new duties, and whether the bill only imposes minor administrative expenses. This is not an exhaustive list of the points to consider, and each case must be evaluated separately. In the case of a bill to amend an existing statute, reference may also be made to whether the parent act was accompanied by a Royal Recommendation or not.
The Speaker continued:
When dealing with issues of the Royal Recommendation, the Speaker’s role is to examine the text of the bill before the Senate, sometimes within the context of an existing law.
The Speaker continued:
In ambiguous or uncertain cases, the Senate has a well-established preference, expressed in numerous rulings, for allowing debate to continue if a valid and reasonable argument that the bill is in order can be established. This principle of favouring debate if reasonably possible is fundamental to many aspects of the practical application of our procedure. It allows senators to reach a final decision, except in cases where an item is clearly out of order, thereby preserving the Senate’s role as a house of discussion and reflection.
The first factor that the Speaker’s rulings have emphasized — whether the bill contains direct costs resulting from a clause appropriating money — is straightforward.
As acknowledged by the Parliamentary Budget Officer’s report on the bill, no provisions exist in Bill S-230 that authorize additional spending, appropriate any public money or impose a tax.
On the remaining issue of indirect costs, Bill S-230 does not impose any impermissible indirect expenditures. Any costs identified can be classified as optional — operating at the discretion of the government rather than required by the bill — or else permissible minor administrative expenses or structuring of existing functions.
As well, it is worth noting that any indirect costs identified could be diminished, if not completely offset, and savings could be achieved through policy or discretionary decisions by the Correctional Service of Canada, or CSC, to implement the bill in ways that save and repurpose funds currently invested in costly and inhumane measures, including isolation, and avoid the legal costs associated with defending breaches of human rights and Charter rights resulting from these policies, as well as settlements and damages paid out to those whose rights have been breached.
Bill S-230 largely takes up amendments that the Senate made to Bill C-83 in 2019 in order to ensure that the bill meaningfully achieves its stated aim of abolishing the use of segregation or solitary confinement in federal penitentiaries.
It should be noted: First, no concerns relating to a Royal Recommendation were raised in this chamber, as the Senate amended Bill C-83 to add substantially similar provisions to that legislation in 2019. Second, the House of Commons message rejecting those Senate amendments to Bill C-83, while noting potential indirect financial consequences in one provision of the legislation, did not suggest in any way that these measures, now reproduced in Bill S-230, required a Royal Recommendation.
When the Parliamentary Budget Officer, or PBO, costed Bill S-230, it identified only one measure giving rise to potential indirect costs: the provisions adding to the Corrections and Conditional Release Act’s judicial oversight measures recommended by Justice Louise Arbour in 1996 to prevent unlawful and unconstitutional isolation, which remain the standard advocated by countless legal and human rights experts.
One is a requirement that corrections must seek approval from a superior court to keep someone in conditions of isolation, in this case for longer than 48 hours.
The other is the ability for prisoners to apply to a court for an “Arbour remedy,” which is the shortening of a sentence or parole ineligibility period where correctional mismanagement — unlawful behaviour, including time spent in isolation — has rendered a sentence harsher than what the sentencing judge intended.
The PBO identified potential indirect costs of $6.8 million annually relating to the cost of case preparations by corrections, government lawyers having to go to court or settle cases, and corrections escorting people to court hearings.
When we look at how the PBO characterized the bill, it seems clear that this is not a case of a novel expenditure or the broadening of the purpose of an expenditure. Indeed, the report states:
We refer to this as the direct cost of the bill. However, this does not mean that the bill authorizes any additional spending. Rather the direct cost of the bill represents an opportunity cost – the resources which would be needed to comply with the new obligations, and which may no longer be available for other responsibilities. Parliament may or may not choose to grant additional future funding to cover these costs, with implications for the resources available to the Correctional Service of Canada (CSC) for its other responsibilities.
These are optional, not required costs or expenses.
In the event that there is any remaining uncertainty, however, I will also address why any potential spending that the bill may entail is not a novel expenditure and not the broadening of the purpose of an expenditure.
When examining the factors highlighted by previous Speakers’ rulings, it is clear that Bill S-230 does not contemplate funding for a purpose that is new and distinct or broadened. The infrastructure referred to by the PBO — such as case preparation or lawyers escorting people to court — is already in place, as CSC currently must routinely take part in legal action. CSC also already must routinely prep cases for review as part of a convoluted internal non-judicial review system — various reviews by the warden, the commissioner, independent external decision makers, et cetera — that has not prevented human rights violations.
Regarding existing legal actions with which CSC is involved, this includes responding to the Canadian Human Rights Commission and court challenges, including the increasing number of habeas corpus, judicial reviews and class actions directed at CSC. In fact, a class action that has now been authorized in Quebec alleges that the current rules on isolation are perpetuating unconstitutional solitary confinement.
Regarding case preparation in particular, as acknowledged by the PBO, CSC staff are already required to do case prep for multiple stages of convoluted non-judicial review.
As the PBO points out, in fact, the reality that corrections is required to conduct these 48-hour reviews will likely result in fewer cases going to court and will likely prevent further action.
Under the current system, each person in the structured intervention units, or SIUs, is expected to be subject to multiple reviews requiring case preparation by CSC, meaning that case preparation associated with Bill S-230’s judicial reviews would be a minor expense or inconvenience or an instance of structuring how a government body performs existing responsibilities. For example, an earlier case preparation or review versus one or several later reviews is not a new or distinct source of expenditures or a broadening of the purpose of the expenditures.
The situation is one of “pay now or pay later” — in fact, pay much more later. Legal costs for CSC associated with judicial oversight must be seen in the context of existing convoluted non‑judicial review and the future, more significant legal costs that they will help CSC avoid. Without Bill S-230, internal reviews happen, but they are often too late and too ineffective. There is sometimes court adjudication, but it is ex post facto — too late to prevent the human and financial costs of rights violations. Bill S-230’s judicial oversight measures would structure existing functions associated with reviews and legal actions to ensure recourse to courts is being used to proactively uphold Charter rights and human rights — instead of reactively defending against allegations of rights violations — in ways that save money.
The purposes of court review and oversight of CSC decision making, particularly with respect to safeguarding the Charter rights and human rights of prisoners, are closely interrelated with the existing reasons why CSC participates and is called on to participate in litigation, as well as the overall purpose of the Corrections and Conditional Release Act, which was developed and intended as a piece of human rights legislation.
Section 3 of the act sets out:
The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision . . . .
The act further sets out principles that guide CSC in achieving this purpose in section 4, including that CSC must use:
. . . the least restrictive measures consistent with the protection of society, staff members and [prisoners] . . . .
And prisoners should:
. . . retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted . . . .
Further, the act states, “. . . correctional decisions are made in a forthright and fair manner . . . .”
The goals of ensuring that CSC decisions are fair, as well as that rights are respected and least restrictive measures are used, are closely tied to judicial oversight of CSC aimed at preventing human rights violations, in particular as articulated by Justice Arbour:
. . . there is little hope that the Rule of Law will implant itself within the correctional culture without assistance and control from Parliament and the courts.
Although the issue of whether expenditures are for a purpose that is totally new and distinct versus related to existing responsibilities has already been discussed, for perspective, it is also worth reiterating that the PBO’s estimated $6.8 million is, for CSC, a small amount in the context of the massive amounts of resources at CSC’s disposal. The $6.8 million represents less than 1% — in fact, 0.21% — of CSC’s planned spending for 2024-25.
For context, Bill S-15, which the Speaker’s ruling of October 2 recently held did not require a Royal Recommendation, is of a similar order of magnitude, representing about $2 million annually, or 0.07% of the relevant department’s budget.
Additionally, any actual indirect costs are expected to be significantly lower than the $6.8 million estimated by the PBO. In particular, the PBO reported, based on CSC representations, that a third of these costs were related to escorting prisoners in person to court. Those of us who have been in prisons recently — any time, in fact, over the last five years — will know that in practice, it is actually rare that court cases are not dealt with by video hearings now.
Additionally, policy will change practice, as the PBO acknowledged. The number of people kept in SIUs for more than 48 hours will undoubtedly decrease. But the intransigence of CSC forced the PBO to prepare their costing based on the current number of people kept in SIUs for longer than 48 hours. History shows that CSC will actually reduce the numbers in those units.
Bill S-230’s provisions on judicial oversight can be implemented in a way that results in savings for CSC, partially or even fully offsetting costs. As acknowledged by the PBO, these measures will result in fewer people in SIUs and will result in people being released from SIUs sooner. The PBO notes that these savings were not costed because CSC told the PBO that CSC planned to staff and operate SIUs at the same level whether they are full or empty.
Visits to prisons across the country contradict this statement and confirm that, in practice, SIUs are closed or repurposed when there are no SIU prisoners in them. Even if CSC were to keep empty or partly empty SIUs fully staffed and fully operational, this would clearly be a discretionary choice of CSC not to take full benefit of these opportunities for savings or reinvestment in other priorities.
Judicial oversight measures can help prevent conditions of isolation that result in court challenges seeking to redress violations of human and Charter rights. Again, as acknowledged by the PBO, legal costs for CSC associated with defending actions for damages, including Charter challenges, will be significantly higher than legal costs associated with judicial oversight of conditions of isolation. In addition to legal fees, if found liable, CSC would then be responsible also for damage awards.
I note, for example, that a class-action lawsuit has now been authorized in Quebec, as I mentioned, alleging that SIUs are perpetuating unconstitutional solitary confinement. Measures to allow courts to order people out of SIUs after 48 hours will significantly decrease the risks of these types of conditions of isolation. Previous similar class actions in cases of isolation were successful and resulted in tens of millions of dollars of damages.
A recent example is the case of Mr. Warren. Mr. Warren’s lawyers advised me that he was initially held in Millhaven SIU and that he is now in the Regional Treatment Centre — this after Justice Pomerance, now of the Court of Appeal, then of the Superior Court of Justice of Ontario, ordered that his sentence be served in a mental health facility, in a hospital, as CSC’s attempts to work with him in the past had proven wholly inadequate, and she concluded that he had not received the treatment that he needed. CSC is attempting to appeal her ruling. Meanwhile, Mr. Warren languishes in the Regional Treatment Centre in Millhaven.
The PBO concluded that there were no costs related to this bill with respect to the burdens on the court system or Legal Aid representation for prisoners, given that these would amount to possible costs for provincial and territorial governments rather than the federal government.
For context, it may be helpful to highlight the minimal number of cases at issue. The PBO suggested at most this would be 2,000 additional cases per year that would need to be heard by Superior Courts. However, as discussed previously, in practice, this number will be smaller, as people will be released from SIUs before 48 hours to avoid the need to go to court. This is, in fact, what has repeatedly happened when action and court decisions of this sort have been taken. Even taking this 2,000 figure at face value, however, this amounts to less than 1% of the Superior Courts’ current criminal caseload, estimated at approximately 340,000 cases in 2018-19 alone.
A second key measure in Bill S-230 would require CSC to authorize the transfer of individuals with disabling mental health issues out of prisons to provincial and territorial health systems for assessment/treatment rather than leaving this decision to the discretion of CSC.
The PBO has estimated that depending on how CSC chooses to implement this measure as a matter of policy, costs could range from $0 to $2 billion per year. Since, as acknowledged by the PBO, this spending would not be required by Bill S-230, any resulting costs could not be indirect costs of the bill but, rather, discretionary spending by CSC in the context of implementation. In particular, the PBO argues that Bill S-230 only authorizes CSC to transfer individuals with disabling mental health issues to the provincial-territorial health system. The PBO argues the bill does not require provincial-territorial health facilities to accept these transfers, nor does it require CSC to take steps to contract additional beds within systems, though CSC could — and I would argue should — take this step as a matter of policy to ensure that those in need of health care are able to receive it.
The findings of the PBO make clear that the bill’s measures regarding transfers to provincial-territorial hospitals do not result in costs attributable to the bill. In addition, however, it is worth emphasizing that these measures are closely linked to the purposes of the Corrections and Conditional Release Act, or CCRA. They build upon provisions already included in the CCRA regarding the ability of CSC to establish exchange of service agreements with provincial-territorial health services and hospitals and that allow CSC to authorize transfers of prisoners to provincial and territorial health systems, including for reasons related to disabling mental health issues.
For context, it is also important to note that the PBO’s costing does not account for potential cost savings associated with transferring those with disabling mental health issues out of the prison system to provincial-territorial hospitals as well as the significant existing resources available to fund these external mental health beds. The PBO estimates that the annual cost of maintaining someone in a provincial forensic hospital is approximately $380,000. According to the PBO’s own data, this is less than it costs to keep a person in isolation in federal prisons, meaning that each person transferred to an external mental health bed on a contract could represent savings of around $100,000 per year.
In addition to the potential to defund isolation cells in order to fund external mental health beds, CSC has received significant funding for mental health that could be devoted to securing contracts for external mental health beds. As part of these amounts, CSC already received some $9.2 million precisely earmarked for external mental health beds but has been unable to account for how this funding has been spent. CSC officials testified repeatedly that they received ongoing funding in 2018 for contracting access to new external mental health beds, and the amount of this funding appears to be $9.2 million annually out of a total of $74 million per year for mental health spending. I say “appears” because we have had inconsistent responses at different committees.
The number of available external mental health beds has remained the same throughout this period: 20 beds, all at the Philippe-Pinel Institute in Montreal. Worse yet, when asked to account for how the funds were spent if not on securing access to new external mental health beds, CSC testified to at least two Senate committees, Legal and National Finance, that all $74 million in annual funding for mental health services was invested in internal, prison-based mental health services — despite commitments to the contrary and despite clear evidence that adequate mental health treatment cannot and is not being provided in prison settings.
Growing numbers of legal cases are challenging the isolation of those with disabling mental health issues in line with Canada’s international human rights obligations. Bill S-230’s measures regarding transfers of people from prison to hospitals will significantly decrease the risks of people being left in isolation and the potential legal costs, settlements and damage awards that result where human and Charter rights are found to be violated.
Finally, it is important to stress the potential for downstream cost savings for the prison system and health care system that come from meaningful treatment of mental health issues in the community, not to mention the role this can play in successful community integration and prevention of future criminalization.
Data from the now-ended ministerial advisory panel on the implementation of structured intervention units, or SIUs, makes clear that the current system, absent Bill S-230, is increasing the human, social and financial costs of mental health issues. There is a correlation between SIUs and deteriorating mental health, and those whose mental health deteriorates while imprisoned in SIUs stay there longer despite internationally recognized standards prohibiting the isolation of those with disabling mental health issues.
While the full downstream cost and devastating human cost implications are difficult to estimate, the Mental Health Commission of Canada concluded in 2010 that:
If we just reduced the number of people experiencing a new mental illness in a given year by 10% . . . after 10 years we could be saving the economy at least $4 billion a year.
Regarding Bill S-230’s provisions that would define any confinement more restrictive than the general prison population as a SIU, the Parliamentary Budget Officer, or PBO, found that these measures did not require any spending. Prior to the passage of Bill C-83, the Bill S-230 definition was, in fact, the definition of “segregation.”
Regarding provisions in Bill S-230 designed to increase access to existing avenues for community-based alternatives to prisons, especially for Indigenous people, the PBO found that these measures did not require any spending.
Though the legislation aims to encourage Correctional Service Canada, or CSC, to implement existing measures to enter agreements with communities to allow them to provide community-based care and custody of prisoners, ultimately the Minister of Public Safety, Democratic Institutions and Intergovernmental Affairs retains discretion over whether to enter these agreements and on what terms. It is not required to spend money.
Responding to a similar point of order last month, Senator Klyne ably outlined the depth and scope of legislation that has originated in recent years in this Senate chamber, sometimes carrying significant — but permissible — indirect costs. Current practice has been to support debate and the ability of the Senate to carry out its legislative powers. As noted by a Speaker’s ruling of February 24, 2009:
In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate’s role as a chamber of discussion and reflection.
If the current point of order was to succeed, it risks a marked departure from this preference in favour of allowing debate and from the role that the Senate currently plays in Canada’s parliamentary system by significantly narrowing our legislative powers.
Canadians are watching us and are counting on us to not unduly abdicate our duties as legislators. In particular today, Tona is watching us. Tona is one of the women in our report on the wrongful convictions of 12 Indigenous women. She is unlikely to live long enough to have her conviction overturned, but I hope you, my colleagues, will help to ensure that her objective of ending the tortuous treatment of others might be achieved by the passage of Bill S-230 — Tona’s Law.
After decades of unwavering and tenacious advocacy, Tona is finally in assisted living. In the time remaining before she dies, I believe this chamber owes her — and too many others who have lived horrific experiences in federal prisons — the debate and consideration of this legislation.
Bill S-230 is properly before this chamber, and, with respect, this point of order must be declined.
Thank you. Meegwetch.
Honourable senators, I remind you that the point of order deals with Royal Recommendation.
Honourable senators, I want to provide some brief comments for your consideration on this point of order.
I sit on the Legal and Constitutional Affairs Committee, and there was very thoughtful discussion around the need for a Royal Recommendation. I am rapidly becoming more familiar with this concept — myself and my brilliant staff in my office.
Senator Tannas raised the issue about having concerns that the bill — which requires the engagement of outside medical professionals for mental health assessments — may trigger the need for this Royal Recommendation.
I start by saying that in my view, and after reading the report of the Parliamentary Budget Officer, this bill is not about new money but rather about delivering on responsibilities that already exist in Bill C-83 — Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, a bill that is on the books and that already outlines responsibilities of the government.
The PBO report only outlines the expenditures of the resources needed to comply, not new spending. The main number, which was raised by Senator Carignan — $6.8 million — relates to the need to prepare cases, transport prisoners to court and the work of government lawyers. However, these are seen as resources.
I will quote again from this report:
. . . the PBO provides an estimate of the cost of the resources needed to comply with the new requirement. We refer to this as the direct cost of the bill. . . .
I will quote with emphasis here:
However, this does not mean that the bill authorizes any additional spending. Rather the direct cost of the bill represents an opportunity cost . . . .
I translate “opportunity” to mean possibility. It is a possible cost.
There is a cost associated to resources in many bills that have passed without Royal Recommendation. I am going to give an example that I am familiar with, in the short time that I am here: Bill S-205, which was the interim release and domestic violence recognizance orders bill. That one required defendants to wear a monitoring device. There would imminently be a cost associated to the resources necessary to enforce that bill, and yet it passed here without Royal Recommendation. It was seen as an opportunity cost, I would imagine.
The possible expenses of up to $2 billion are described by the PBO, but they are discretionary. The report outlines between 0 and $2 billion in spending for the authorization; however, this amount is up to the CSC. The bill only requires the Commissioner of Correctional Service Canada to authorize the transfer of individuals with disabling mental health issues. It does not require facilities to accept those individuals nor require Correctional Service Canada to contract for sufficient capacity to serve all those individuals with disabling mental health issues.
I want to quote a very recent ruling — the one from Speaker Gagné from October 2024. In it, she says:
. . . there is no precise sum of money that triggers the requirement for a Royal Recommendation. If a bill would require a small expenditure for a purpose that is totally new and distinct, it may need a Royal Recommendation, whereas large increases in operational expenditures due, for example, to structuring how a government body performs existing responsibilities, may not require one. . . .
My argument here, and what I want to highlight, is that Bill C-83, which is already on the books, already provides these responsibilities. There is nothing new here. Bill S-230 is about delivering on the promise of Bill C-83.
Those are my arguments in support of setting aside the point of order and ruling that this bill does not require a Royal Recommendation, Your Honour.
Thank you.
Honourable senators, I would like to make a few points on this. First of all, as way of background, the Senate Legal Committee made the following observation on Bill S-230 when we tabled a report about that bill with the Senate. It says this:
The committee notes that it requested that the Parliamentary Budget Officer provide a cost estimate regarding the implementation of Bill S-230, following concerns raised by some committee members that the bill as drafted might require a Royal Recommendation.
On May 24, 2024, the Office of the Parliamentary Budget Officer, or PBO, published a report containing this estimate entitled Cost Estimate for Bill S-230: Changes to the Correctional System. A link to that full report was attached to the observation.
When considering this matter earlier this year at Legal Committee, our committee received a procedural note to the Standing Senate Committee on Legal and Constitutional Affairs from the Senate’s table officers with the subject “Procedural background information on Royal Recommendations and related option for the LCJC’s consideration of Bill S-230.”
This procedural note, which we received from the Senate table officers states this:
In particular, a ruling from February 24, 2009 —
— which was referred to earlier —
— lists a number of criteria that should be considered to determine if a bill requires a Royal Recommendation. . . . Criteria to consider would include —
— It goes on to state —
2. Does the bill authorize a novel expenditure not already authorized by law? If so, a Royal Recommendation would probably be required.
3. Does the bill broaden the purpose of an expenditure that it already authorized? If so, a Royal Recommendation would probably be required.
4. Does the bill extend benefits or relax qualifying conditions? If so, a Royal Recommendation would probably be required.
So those were the submissions that we received in that procedural note from the Senate table officers.
Your Honour, I submit that the provisions of Bill S-230 could potentially engage all of those stated situations that I just quoted. I invite you to consider that as was fully explored today by Senator Carignan.
I want to make a further intervention. Senator Pate referred to some amendments that had been proposed here to the original government Bill C-83. I submit that Bill C-83 was a government bill and therefore this is not relevant to this point of order. Bill C-83 was a government bill, originating in the House of Commons, being a C-bill. For all those reasons, I support Senator Carignan’s point of order. Thank you.
Your Honour, I rise to speak briefly against the point of order. I thank Senator Batters for reminding us that the committee made a reference to the PBO study. It has been referred to here a number of times, selectively by Senator Carignan and more comprehensively by Senator Pate. But I would like to read into the record the actual words of the highlights, the key findings of the PBO report:
The direct cost of new activities required by Bill S-230 is estimated to be $6.8 million annually. This consists primarily of costs associated with participation in new legal processes.
Secondly:
Bill S-230 does not require a direct expansion of psychiatric care or alternative custody arrangements for members of marginalized communities.
These are the actual words of the PBO report. I think they are definitive in addressing the criteria for whether a Royal Recommendation is needed.
With respect to the $6.8 million, any money spent is money we need to be careful about, but $6.8 million out of a budget of $3.1 billion, with respect to Senator Pate, it is not 2%. It is 0. 2%. I think that counts as minor administrative expenses. The PBO has determined that these are natural outcomes of the restructuring of the organization necessary for the implementation of the bill. They are not new and direct costs, and therefore, this bill does not require a Royal Recommendation. Thank you.
I’ll be quick, because Senator Batters already raised the points I wanted to go over. I will add two details, though.
First, Senator Pate and Senator Woo say there’s no obligation to proceed with the application and that it’s a policy choice, but I would refer you to the clause I cited earlier. A person in custody who believes they have been treated unfairly has recourse in the form of a sentence reduction or release. If the person has not requested a transfer to a care unit after the first 48 hours, they can claim they were treated unfairly. That would then give them recourse to apply to have the sentence handed down by a judge quashed. In other words, if a person was sentenced to 25 years in a penitentiary and says that CSC should have transferred them to a facility and submitted the application, the law would provide for their sentence to be reduced or struck down. That’s a big piece of this, because people will apply.
Second, as for the issue of how much it will cost, some people seem to forget that this is not a small amount. It could go as high as $2 billion. The Parliamentary Budget Officer is the one saying that, not me. The total budget is $3 billion. Senator Pate said that it’s discretionary and that it could be done within that amount, but is reallocating $2 billion of a $3-billion budget really feasible? Good luck with that. That said, their arguments proved that the third criterion of Senator Kinsella’s decision fell into that particular category, so it does require a Royal Recommendation.
Lastly, I don’t oppose the bill or its principle. It’s just that, to introduce this kind of bill, you have to be in the House of Commons, you have to be an elected member of a government, and you have to have cabinet support to get a Royal Recommendation. This kind of thing can’t be done in the Senate. You would have to get elected to the other place to do it.
I will be very brief. I was the one who started this situation. We did get what I thought was an interesting report from the Parliamentary Budget Officer. I had no inkling how it would go. I still have a question that I hope the Speaker in her ruling will be able to at least ponder.
My understanding of what the PBO said about the $2 billion that could be incurred as costs if they chose to do something other than comply with the strict wording of the bill, which basically says — as Senator Carignan just described — that if someone feels they have not been treated right, they can ask to go to a mental hospital. Correctional Service Canada would be required to transport them there.
This is what the PBO was saying: nothing in the bill says anything needs to happen after that. If Correctional Service Canada does not hire somebody or make an arrangement to pay within the hospital, presumably they will say no or “Sorry, we’re full.” Then what this bill will have been compelling people to do is to give a car ride to a place to be turned away. That, I am sure, is not the intention of Senator Pate. Her intention is, nobly, that somebody take that person in. The only way that is going to happen is if the federal government arranges to pay for it. The province is not going to do it for free.
So the PBO kind of avoids the issue to say, “Well, all this bill requires is a car ride somewhere.” It doesn’t say that they have to be put there and kept there. I’m still troubled by that. I worry that will be a factor that, in the House of Commons, at the next debate on this, we may overlook accidentally because there will be other forces more organized to debate this on the other side. Or maybe we just want to leave it and let it play out on the other side.
However, this is a point that I would really like Your Honour to think about and ponder the common sense of. If this is how it goes, there may be other precedents that could be set that might be equally ridiculous. Thank you.
Senator Woo, quickly.
I thank Senator Tannas for raising that point, but in that spirit, I would encourage Your Honour to also consider other second-order and third-order expenses, as well as savings. As we have heard from Senator Pate already, there are very conceivable, plausible savings from not having people in structured intervention units, which come from the relief of their mental traumas.
So if we are going to get into the space of second-order and third-order calculations — which the PBO doesn’t do, partly as a matter of principle — then we must look at both sides of the ledger.
Honourable senators, I will hear Senator Pate briefly, and that will conclude comments and arguments on the point of order.
Thank you, Your Honour, and thank you, Senator Woo, for that intervention.
I only want to add one detail that we didn’t put on the record that was put on the record at committee. There have been examples — and I gave evidence about the lack of information about how money that was supposed to go to some of these measures when Bill C-83 was passed was spent.
We also heard that there was an attempt to contract with the Institut national de psychiatrie légale Philippe-Pinel some years back, and for $3 million a year, Pinel was going to provide 20 additional mental health beds. Correctional Service Canada, or CSC, refused to fund that, even though the structured intervention unit and maximum security beds — where people who would otherwise go there are currently being placed — cost in excess of $463,000 and upward of half a million dollars per year. You can do the math. I have proven what my math is like. Thank you, Senator Woo, for correcting it. We can see the cost savings.
So if we are going to go down the alley of trying to calculate the costs, we must look at who has been accountable in terms of where they are spending their money and who has not.
Honourable senators, thank you for your participation on this point of order. The issue will be taken under deliberation by Speaker Gagné. I am sure she will promptly provide a ruling.
