Corrections and Conditional Release Act
Bill to Amend--Third Reading--Debate Continued
November 26, 2024
Honourable senators, we and the Senate as a whole have long worked to uphold the human rights of federal prisoners. This is closely tied to our role as representatives and protectors of so-called minority groups, the people too often at risk of being left behind or abandoned by the legislation we pass. Bill S-230, An Act to amend the Corrections and Conditional Release Act, reflects this work.
In 2021, the Senate Human Rights Committee issued a report on the human rights of federally sentenced persons, endorsed by the Senate, whose recommendations on isolation and structured intervention units, or SIUs, Bill S-230 aims to implement. As part of its study, committee members in 2018 visited the East Coast Forensic Hospital in Burnside, Nova Scotia, and had the privilege of speaking with Tona Mills, whose name this legislation bears and who had hoped to be here in the chamber with us today.
An Indigenous woman and survivor of the so-called Sixties Scoop, Tona was imprisoned for a decade in federal penitentiaries, including in segregated units in prisons for men. She spent all that time in solitary confinement.
For those who have never been imprisoned under such conditions, it is impossible to find the words to describe what she experienced. For more than 10 years, she spent almost every hour of every day locked in a cell the size of a parking space or a small bathroom, barely more than a concrete closet. In addition to sometimes being chained to the floor and often put in restraints, tied to her bunk and having extremely limited time outdoors, a cell-sized metal cage was built for her at the back of the Prison for Women in Kingston. It remains there to this day, a reminder of how Tona was caged and of the horrific reality that her time in those metal bars was meant to be a respite from the even more restrictive confinement indoors.
When Tona was finally admitted into the mental health system, she was diagnosed with isolation-induced schizophrenia. Tona implored senators to do whatever we could to end solitary confinement and get others out of prisons and into appropriate mental health services so that what happened to her would not happen to anyone else ever again. She does not want anyone else to be driven crazy. She asked if we might consider calling it “Tona’s Law.”
Tona exited the forensic unit one year ago. She was recently diagnosed with terminal cancer. As she has for decades, including three years of Bill S-230’s halting progress through procedural delays and challenges at committee and in the chamber, Tona is continuing her incredible advocacy. In the time she has remaining, I believe we owe her and far too many others subjected to solitary confinement the timely consideration of and strong decision making with respect to this bill.
In 2018-19, the federal government committed to ending the use of segregation, or solitary confinement, in federal prisons. That promise responded to a series of court cases ruling the existing system of segregation unconstitutional and acknowledging its horrific physical, psychological and neurological harms. Irreversible consequences can begin within 48 hours of isolation. By seven days, brain function can be permanently altered. Segregation of 15 days or more violates the Charter prohibition against cruel and unusual punishment, and is recognized internationally as torture.
Bill C-83 purported to replace segregation with structured intervention units. Experts and advocates quickly raised concerns that this bill would fall short of its laudable goal of eliminating the conditions of solitary confinement. In 2019, the Senate Social Affairs Committee amended the bill to include several minimum safeguards necessary if the bill were to meet its stated purpose. The Senate endorsed those amendments and sent them to the House of Commons. When they were rejected by the government, we very nearly bounced the message back to the other place.
Within minutes of the bill passing, senators — including our dearly missed colleague Senator Josée Forest-Niesing, Senator Colin Deacon and Senator Marty Klyne, the sponsor of Bill C-83 — began to work together on plans to monitor the implementation of Bill C-83 through visits and assessments of the conditions of confinement in federal prisons.
In addition to these colleagues who led the way, I thank the 37 of you who have visited federal prisons to meet with prisoners and staff. Out of this initiative, Senator Forest-Niesing and I worked together to develop Bill S-230 which, prior to her passing, she planned to sponsor.
During the study of Bill S-230 by the Legal Committee, witness testimony echoed what senators have observed and documented in our 2022 Senators Go to Jail report.
Witnesses referred us repeatedly to the work of Dr. Anthony Doob, the former chair of the minister’s advisory panel on the implementation of SIUs. His publications with Dr. Jane Sprott, as well as his advisory panel colleagues, highlighted that more than one out of three prisoners in SIUs have experienced the very conditions of solitary confinement that the government promised to eliminate. For 1 out of 10 prisoners, the conditions last for more than 15 days, which is defined as torture according to international human rights standards.
Those most marginalized disproportionately end up in conditions of isolation. Despite being only 4% of the Canadian population, 10% of federal prisoners and 16% of those in SIUs are of African descent. Indigenous peoples are 5% of the general population, but they’re 33% of those in prison and 44% of those in SIUs. Worse yet, Indigenous women are more than half of the women in prison and 96% of the women in SIUs.
Indeed, last month, the UN Committee on the Elimination of Discrimination against Women issued its latest periodic report on Canada, noting concerns about the overrepresentation of Indigenous women in the penitentiary system and their increased likelihood to experience discrimination in the criminal and penitentiary system, including solitary confinement.
In response, the committee called for effective accountability mechanisms to investigate, prosecute and sanction human rights violations against women in the penitentiary system, as well as provide comprehensive reparations to affected women and strengthen existing accountability mechanisms, including through independent oversight.
Bill S-230 would not only respond to these recommendations by providing meaningful external court oversight, remedies and alternatives to solitary confinement, but it also has the potential to proactively prevent future breaches of human rights.
Furthermore, despite international obligations and Canadian case law prohibiting isolation of people with disabling mental health issues, two in five people in SIUs are identified by Correctional Service Canada, or CSC, as having a mental health flag. More than half of those segregated in SIUs have these flags five or more times. Corrections most often characterizes such time in SIUs as warranted “for [that person’s] own safety,” despite complete failure to transfer them to appropriate health care settings.
Despite legislative requirements that stays in SIUs be as short as possible, the rates of people kept in SIUs for more than 60 days and more than 120 days are indistinguishable from the old administrative segregation system.
Research by Dr. Anthony Doob, Dr. Jane Sprott and the ministerial advisory panel also illuminate the systemic inabilities of independent external decision makers, or IEDMs — the review system created in place of the court-based oversight suggested by the Senate — to effectively hold CSC to account.
IEDMs are left to rely on CSC to provide most of the information they use to review CSC’s decisions to keep people in SIUs. It is not mandatory for IEDMs to visit or speak with prisoners. There is no clear mechanism for a prisoner with a complaint to contact them.
IEDM reviews are only guaranteed by law after a prisoner has spent 90 days in an SIU, which is six times longer than the 15‑day period of isolation deemed as torturous by the UN. CSC has failed to refer cases to IEDMs within 90 days for at least 30% of the time those placements have been made.
Where IEDMs order that prisoners be released from SIUs, CSC takes longer on average to release them compared to people whose releases were not ordered. Last week, the contracts of several of the IEDMs were terminated, with the most senior receiving only seven days’ notice without reasons being provided.
Internal sources advise that those whose contracts have ended are the IEDMs who generally refused to rubber-stamp CSC decisions. Before this most recent development, IEDMs were already describing themselves as overwhelmed. Additionally, the one Indigenous IEDM and the one Black IEDM were among those pushed out.
How will the system function with barely half — only 7 of its 12 — of the IEDM positions currently staffed? This trend toward eliminating already inadequate external oversight of federal prisons is incredibly worrying.
The ministerial advisory panel on SIUs presented its final annual report this month. They note that their report:
. . . comes to the same conclusions as the other six empirically based reports . . . released by the Panel. Structured Intervention Units . . . are not addressing the problems they were designed to address. . . . They are not working as intended, and . . . they are also not improving. The problems are fundamental, not peripheral.
The panel will shortly be disbanded, leaving a system whose lawless operation has been documented by the government’s own advisory panel to persist with virtually no remaining oversight. The lack of government accountability for continued violations of human rights in federal prisons was brought home sharply to senators in recent weeks.
This fall, during Question Period, Senator Bernard, the Deputy Chair of the Standing Senate Committee on Human Rights, invited Minister LeBlanc, who is responsible for corrections, to come before the committee. Members wished to explore the inadequacy of the government’s response to the committee’s report on the human rights of federally sentenced persons, including failures to address ongoing conditions of isolation. The minister agreed to appear.
Days after the ministerial advisory panel released its damning report however, the Human Rights Committee received a letter from the minister stating he would not be attending the committee and stood by the government’s response. We would be hard pressed to provide stronger evidence of the ineffectiveness of current accountability measures. Those established by Bill C-83 five years ago have completely and utterly failed, meaning that human rights and Charter rights of prisoners are being violated with impunity.
The oversight and remedial measures contained in Bill S-230 are urgently needed.
Regarding the provisions contained in Bill S-230, I underscore there is nothing in the bill that the Senate has not considered and endorsed before, either as proposed amendments to Bill C-83 in 2019 or in the 2021 recommendations of the Human Rights Committee in its report on the Human Rights of Federally-Sentenced Persons.
The first of four key measures contained in Bill S-230 is court oversight of decisions by CSC to place people in isolation. For more than 25 years, legal, constitutional and human rights experts — including former Supreme Court Justice the Honourable Louise Arbour — have identified a culture of systemic violations of human rights of federal prisoners within federal prisons, and they recommended court oversight in response.
At committee, experts and advocates urging support for this measure included the following: the Canadian Prison Law Association, British Columbia Civil Liberties Association, the John Howard Society of Canada, the Canadian Association of Elizabeth Fry Societies, the Criminal Lawyers’ Association, Dr. Adelina Iftene, Professor Michael Jackson, the West Coast Prison Justice Society, Michael Spratt, the Native Women’s Association of Canada, the Canadian Association of Black Lawyers and the Mental Health Commission of Canada.
Bill S-230 seeks to implement two key recommendations for court oversight made by Justice Arbour in the 1996 Commission of Inquiry into Certain Events at the Prison for Women in Kingston.
The first is a cap on the time a person can spend in isolation, beyond which correctional authorities must apply to a superior court for authority to continue that prisoner’s isolation. Bill S-230 sets this cap at 48 hours to reflect the latest data acknowledged by both the Ontario Superior Court of Justice and Court of Appeal for Ontario about when irreparable physical, psychological and neurological harms can begin.
At our Legal Committee, Professor Michael Jackson, often recognized as one of Canada’s foremost prison law experts, emphasized the necessity of involving courts. He discussed his decades of attempting to achieve non-judicial independent adjudication through other means, only to eventually conclude that anything short of judicial oversight would never suffice. He stated:
. . . CSC has fiercely resisted any independent adjudication of segregation. . . .
. . . in light of the collective experiences — almost 50 years of reports — in which CSC has expressed its resistance, at this point judicial review is the appropriate remedial measure.
Regarding the choice of a 48-hour time frame, prison law and health law expert Dr. Adelina Iftene testified:
For people with mental health illnesses, there is a lot of research, including United Nations research, showing that . . . negative consequences start a lot earlier than the 48 hours . . . . That should worry us in terms of using isolation of any kind . . . .
She added:
Yes, it’s going to be challenging because . . . other alternatives . . . will need to be in place. . . . There will be a reallocation of resources. There will be a lot of need to rethink the things that have been done, but I think it is that very important step toward saying that . . . . Isolation is not a solution; it’s just a momentary point in time when you get that 48 hours to think of what it is that’s best for the person in that situation.
The Canadian Prison Law Association and the West Coast Prison Justice Society put the 48-hour time frame in context, noting that a bill before the U.S. Congress would place a much shorter 4-hour limit on isolation, while New York City currently prohibits isolation longer than 2 hours during the day except in extraordinary circumstances.
Criminal law expert Michael Spratt emphasized that concerns about potential strains on the court system should not prevent us from moving forward with this provision. The requirement for a court application on a tight timeline will help deter CSC from keeping people in isolation beyond that timeline unreasonably. Mechanisms like bail reviews already require courts to manage high-volume and time-sensitive applications as part of their role in upholding individuals’ human and Charter rights. Courts will be able to rise to this challenge.
The second court oversight measure recommended by Justice Arbour and contained in Bill S-230 allows a person to apply to the court that sentenced them for a reduced sentence or parole ineligibility period if correctional mismanagement has made their sentence more punitive, for example, due to time spent in isolation. As noted by Justice Arbour — and reiterated by the Correctional Investigator, prison law experts and the architect of the Youth Criminal Justice Act — this remedy operates similarly to provisions in the Criminal Code that permit judges, at sentencing, to reduce the length of a sentence in recognition of time served under harsh conditions in pretrial detention. It reflects the constitutional principle of habeas corpus that just as prison authorities do not have the power to make a sentence longer than what was imposed by a court, nor can they make it harsher or more punitive.
Legal Committee witnesses noted that several northern countries and Western European countries have provided similar remedies for decades, as has Canada’s own youth criminal justice system. This fall, an Ontario sentencing decision reduced a teenage girl’s sentence for a manslaughter conviction after she was subjected to unlawful strip-searching during pretrial detention, a stark reminder of the ways correctional abuse and intransigence result in unfairly harsh sentences. Also, a 2020 case presumptively reduced a person’s sentence to account for systemic anti-Black racism that would render his sentence harsher. By allowing courts to consider and remedy injustices occurring while a person is serving their sentence, Bill S-230 will ensure that such carceral breaches of the law are treated with equal seriousness as those that occur pre-sentencing.
Given the questions raised by some colleagues about the cost of Bill S-230, including its judicial oversight measures, it is important to highlight that these measures will save money by preventing both the financial and human costs of isolation in federal prisons. As acknowledged by the Parliamentary Budget Officer, these measures will result in fewer people in SIUs, saving hundreds of thousands of dollars per person per year. Furthermore, the government recently paid out tens of millions of dollars to those whose rights were violated by its former segregation system and, on the same grounds, is now facing a class-action challenge to isolation in its new SIU system. Bill S-230 could prevent future further costly litigation, settlements and damages awards.
Experts, including the minister’s own Structured Intervention Unit Implementation Advisory Panel and the Office of the Correctional Investigator, have documented that with the implementation of Bill C-83, conditions of isolation not only continued within SIUs; they persisted and expanded outside SIUs as well. Shockingly, despite this clear record from multiple authoritative sources, CSC testified to the Legal Committee, without offering any substantiation, that there are no such hidden cells where isolation is taking place outside SIUs, blaming any isolation that may have previously occurred on the COVID-19 pandemic. By contrast, at least six witnesses pointed to well-documented forms of isolation akin to segregation outside SIUs that predated and persisted following the pandemic, including “dry cells,” secure units for women, therapeutic ranges, temporary detention, voluntary limited association ranges, lockdowns, medical observation and restrictive movement regimes.
Colleagues, a number of you have also witnessed these isolating conditions of confinement. This lack of monitoring and accountability of conditions of isolation by corrections only reinforces the vital need for Bill S-230’s measures to ensure that isolation occurring outside SIUs is equally subject to safeguards and oversight.
In placing limitations on the use of isolation in federal prisons, Bill S-230 also proposes crucial alternatives for those most at risk of being placed in SIUs. As a third key measure, the bill would add to current provisions authorizing CSC to transfer prisoners to provincial or territorial health care systems, including for mental health reasons, a requirement to authorize such a transfer for purposes of treatment where a person has a disabling mental health issue or for the purposes of assessment where a mental health professional is not available in the prison to carry out a required mental health assessment.
While these opportunities to transfer people out of prison to hospital have long existed in the law, they have rarely been used, with CSC instead choosing to invest its resources in attempting to provide mental health treatment within prisons. The shockingly inhumane outcome is that isolation — conditions known to generate and exacerbate mental health issues — is used as a default for managing people who need health care.
The government’s own data, generated by the ministerial advisory panel, highlights that the SIU system has failed to uphold international and Canadian legal standards that prohibit the isolation of those with disabling mental health issues. Indeed, while too many mental health issues remain undiagnosed or unacknowledged by CSC, even people that prison authorities recognize as having mental health issues are more likely to be isolated repeatedly in SIUs and subjected to conditions of prolonged solitary confinement.
The need for Bill S-230’s measure for transfers to provincial and territorial hospitals was emphasized in June of this year when an Ontario Superior Court decision by Justice Pomerance — now on the Ontario Court of Appeal — ordered the type of measure contained in Bill S-230 in the case of Patrick Warren, an Indigenous man with disabling mental health issues. Mr. Warren was labelled a dangerous offender as a result of arson convictions that mental health experts have testified are responses to his lived experience of horrific abuse as a child.
In reaching this decision, Justice Pomerance considered ongoing materials from CSC, the Office of the Correctional Investigator and experts on structured intervention units, isolation and mental health, as well as the particular history of Mr. Warren, highlighting that responses to mental health within federal prisons, including regional treatment centres, were focused primarily on maintaining security and managing behaviour instead of providing Mr. Warren with individualized treatment and therapy. His so-called treatment by CSC during previous sentences involved him being placed in isolation, first in administrative segregation and later in SIUs.
Justice Pomerance recognized that the indefinite sentence that generally accompanies a dangerous offender designation, if served in a federal prison, would condemn Mr. Warren to lifelong isolation with no hope of receiving adequate treatment to provide any chance for community integration. She ruled this a violation of his Charter rights and sentenced him to a hospital in Ontario. Section 29 of the Corrections and Conditional Release Act currently contemplates exactly this sort of measure, allowing CSC to authorize transfers of prisoners to hospital.
Knowing the wholly ineffective and inhumane reality awaiting Mr. Warren in federal prison, Justice Pomerance rendered the most just decision she could envision. Correctional Service Canada, or CSC, has appealed her decision, and we await a final decision in that case. Mr. Warren, meanwhile, sits languishing — along with too many others — in isolation in the Millhaven Regional Treatment Centre, which prisoners and staff alike describe as providing conditions of confinement akin to the structured intervention unit, or SIU. In fact, I was previously advised by his lawyer and advocates that Mr. Warren was actually in the SIU.
Justice Pomerance’s decision is a narrow one, applying just to Mr. Warren, but it sends a clear message — that judges recognize the need for the provisions like those in Bill S-230.
It is also important to underscore, given Correctional Service Canada’s continued insistence on investing resources into prison-based mental health, that transfers out of federal prison to the health system save money. The Parliamentary Budget Officer, or PBO, estimates that the annual cost of maintaining someone in a provincial forensic hospital is expensive — approximately $380,000 per year. According to the PBO’s own data, however, this is still less than what it costs to keep a person in isolation in a federal prison.
Each person transferred to an external mental health bed on a contract would represent a saving of around at least $100,000 per year. On top of this, preventing isolation will create significant downstream savings by avoiding the need for additional costly litigation resulting from breaches of human and Charter rights as well as through improved mental health and fewer community-based mental health expenditures.
Since Bill C-83 was enacted, Correctional Service Canada has received significant funding — at least $74 million per year — for improving mental health, which could be devoted to contracting with provinces and territories for mental health beds. In fact, CSC testified to the Human Rights Committee that some $9.2 million of this funding was earmarked for external mental health beds but has been unable to account for how this funding has been spent.
At committee, we heard that the number of beds has remained the same as before Bill C-83 — 20 beds, all at Pinel Institution in Montreal. Worse yet, when asked to account for how these funds were spent if not on securing access to new external mental health beds, CSC testified that all $74 million per year of 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 be and is not being provided in prison settings.
CSC is doubling down on its ineffective, prison-based mental health strategies that put at risk the lives and health of the people inside prisons for whom CSC is responsible. Bill S-230 would help lay the groundwork for a much-needed shift toward accessing mental health in the community, so that all can receive the treatment they need.
A fourth and final key measure in Bill S-230 aims to breathe life into existing alternatives to isolation for Indigenous peoples and other marginalized groups, recognizing that, as a result of systemic discrimination and colonialism, Indigenous women and others most in need of community support and connection too often end up incarcerated, labelled as “risks” and locked in SIUs. As notably documented by the Office of the Correctional Investigator and the Canadian Human Rights Commission, systemic discrimination in how the prison system assesses “risk” has resulted in the overrepresentation of Indigenous peoples, those of African descent and those with mental health issues in the most harsh and restrictive conditions of confinement, including isolation.
Bill S-230 seeks to expand access to sections 81 and 84 of the Corrections and Conditional Release Act, or CCRA, permitting prisoners to be transferred and released to the care and custody of Indigenous communities as called for by the National Inquiry into Missing and Murdered Indigenous Women, the Truth and Reconciliation Commission, the Native Women’s Association of Canada, the Senate Human Rights Committee, the Senate Social Affairs Committee, the House of Commons committees, the Office of the Correctional Investigator and the Canadian Human Rights Commission. Countless experts have now documented the underuse and underfunding of these key measures intended to help redress the colonial legacy of Canada’s prison system.
Bill S-230 aims to expand use of these provisions, in particular, by allowing CSC to make agreements for community-based care and custody with additional kinds of community groups serving others who are overrepresented in federal prisons as a result of systemic inequality, for example, Black Canadians and 2SLGBTQ+ folks.
The bill also requires CSC to take proactive steps to seek out and provide information to Indigenous and non-Indigenous communities and prisoners about opportunities to enter agreements for community-based custody and care as well as requiring CSC to obtain permission from a court if they wish to object to a prisoner being transferred to a community that has this type of agreement in place.
At the heart of Bill S-230 is the reality that some of those most marginalized in Canada are being subjected to unthinkable, draconian conditions as a result of legislation that this chamber helped pass. The human and Charter rights being trampled and eroded in federal prisons belong to those inside — but also to each of us. These are the fundamental guarantees of rights and freedoms that all of us rely on. Everyone benefits when they are upheld and protected. Everyone’s humanity is diminished when we allow human rights to be discarded.
I recently spent a weekend in Mi’kma’ki with Tona Mills at a conference advocating justice for Indigenous women. I want to share her unwavering and clear message to senators, imploring us to end the impunity and refuse to allow what happened to her to happen to others. I quote, “Please stop it. Please stop it now.”
Tona is one of twelve Indigenous women whose exoneration we are also pursuing, but she will not live long enough to see justice done for herself. My hope is that you will join me in supporting this bill and sending it to the House of Commons to provide, at long last, some small steps toward justice for too many others currently trapped in isolation.
Meegwetch, thank you.
Honourable senators, I am grateful to be here on the unceded and unsurrendered Algonquin Anishinaabeg territory. I am speaking today in support of Bill S-230, An Act to amend the Corrections and Conditional Release Act. Thank you to Senator Pate for dedicating your career to advocacy for humane treatment of people in Canadian prisons and identifying this as one of the most serious violations of human rights we see in Canada, and thank you for your speech today.
This cruel punishment is happening in institutions across the country as we speak. Whether under the name “segregation,” “structured intervention units,” “dry cells” or “secure units,” the impact is the same: undeniable harm to mental, physical and spiritual well-being.
I had the privilege of meeting with and talking to hundreds of prisoners on the fact-finding missions during the Human Rights Committee’s study on the human rights of federally sentenced persons. We heard similar stories in every institution, stories of the deplorable experience of being placed in segregation: an unthinkable experience no one — and I repeat, no one — should have to live through. Colleagues, I firmly insist the punishment for a crime is the sentence itself, not repeated unlawful inhumane treatment while you are serving your sentence.
Some of the most troubling stories we heard were from Indigenous and Black incarcerated women and their advocates.
We have just heard Senator Pate speak of Tona. Tona was one of the people the committee met with, and her story has stayed with us. Tona was a survivor of the Sixties Scoop, and it was so disturbing to hear stories of irreparable harm to her health and well-being. We heard many other women’s stories that followed a similar trajectory to hers.
Indigenous and Black children are overrepresented in the child welfare system, which directly feeds into the disproportionate representation of Indigenous and Black adults in prisons in Canada.
This is what we sometimes refer to as the child-welfare-to-prison pipeline. The child-welfare-to-prison pipeline is an important context when imagining what kinds of treatment we find acceptable as lawmakers. The Human Rights Committee study found that Indigenous and Black prisoners were overrepresented in segregation as well.
Honourable senators, this is a direct child-welfare-to-prison and prison-to-segregation pipeline. These systems have repeatedly failed this group of vulnerable people over and over. The harms of segregation, including negative psychological impacts, are felt after only 48 hours of segregation. But the committee also heard about longer-term impacts, as Senator Pate just outlined for us, like the irreversible psychological harm that can occur after only 15 days in solitary confinement.
Colleagues, I’m going to repeat what Senator Pate has reminded us today — that Tona spent 10 years in segregation. Imagine.
I would like to emphasize two of the recommendations from our report Human Rights of Federally-Sentenced Persons:
Recommendation 33
That the Correctional Service of Canada ensure that Structured Intervention Units adhere to the most recent court decisions and respect Canada’s human rights obligations and international commitments, including by:
eliminating the use of solitary confinement for all federally-sentenced persons;
taking into account the different needs and experiences of particular groups, including LGBTQI2-S persons and women;
eliminating solitary confinement in excess of 15 days;
providing meaningful human contact and continued access to programming as well as 24-hour access to health and mental health services; and
establishing judicial oversight to review all Structured Intervention Unit placements and decisions.
Recommendation 34
That the Correctional Service of Canada immediately end the use of separation by any name with youth, women and those with disabling mental health issues, and implement mental health assessments and judicial oversight to eliminate the overrepresentation of federally-sentenced Indigenous Peoples, Black persons, other racialized persons and persons with mental health issues in Structured Intervention Units.
Colleagues, I remind you of these recommendations from our committee, which were tabled in 2021. I encourage you to revisit the study’s findings and recommendations to understand the critical nature of Bill S-230.
I fully support this bill because I believe that no one deserves to experience the inhumanity of time spent in segregation. I believe we can and should legislate meaningful alternatives. Thank you. Asante.
Honourable senators, I rise today to speak in support of Bill S-230, An Act to amend the Corrections and Conditional Release Act.
Colleagues, we all know Senator Pate has done extraordinary work in bringing forward the critical need for this bill and the reasons behind its advent. I would like to reiterate and reaffirm some of the most salient points and the benefits this bill would represent, a bill that is especially critical for First Nations, Inuit, Métis and non-status women.
Bill S-230 seeks to fulfill a promise made by the federal government. In 2018-19, the government made a commitment toward ending segregation in federal prisons. This ending of segregation was to include the ending of solitary confinement and isolation, treatments which have been demonstrably proven to have had severely negative consequences for those who face such punishment. However, this government commitment has not come to fruition.
The government’s commitment on this matter at that time was not only laudable but necessary. The necessity of this commitment is rooted in upholding the human and Charter rights that are the very cornerstone of Canada’s society. However, we are continuing to learn of the myriad ways in which the government has fallen short of their promise to end this horrific and damaging practice.
Despite the changes ushered in through the government’s previous Bill C-83, we find that one in three people in these structured intervention units, or SIUs, meet the definition of existing in solitary confinement, as they are spending 22 hours a day in a cell with no meaningful human contact. For 10% of these individuals, the length of their solitary confinement is so extensive, lasting over 15 days, that it is recognized by law as constituting torture.
Based on our visit as senators to the Stony Mountain Institution in Manitoba on January 17, 2024, to see these SIUs, I can confirm that they are the very same units as they had been previously, with just the name being changed.
I want you to ask yourself this question: How did these people end up where they are? When I was working with the Indigenous workers in Stony Mountain Institution, I saw the racism they were going through, and I understood. Someone in the psych unit told me that 75% of the people there had mental health problems and should not have been there.
That was in 2018. When I went back in 2024, we asked the workers questions like, “What do you do when you meet with the prisoners?” They said, “We get them to accept their behaviour and that they’re responsible for it.”
I asked, “If they’re here because they stole because they were hungry or homeless, what do you do in that situation?” They couldn’t respond.
When I attended the police meeting about remand, one of the panellists said that, in her study, one man had taken a bottle of liquor from a liquor store and was sent to jail. He was a hardened criminal 10 years later. That is the reality.
This is so close to me because if I hadn’t had support, I could very easily have ended up in prison. When you come out of institutions that have taken everything away, you come out with rage. How could you not?
When I found out about the unmarked graves at my residential school, that rage came out. That was just this year. I was so shocked that I still had that rage within me. I know and have always known that I could have ended up in prison. Because of the support I had, I didn’t. That’s why I ask you to think about why these people are there.
Colleagues, we are seeing that the length of time people are forced to endure periods of such isolation is increasing when compared to the previous segregation regimes that were in place. We are seeing that prisoners are being precluded from being empowered to initiate complaints and trigger reviews by the independent external decision makers, or IEDMs, who are in place to provide independent external oversight. Instead, these IEDMs only review cases that are referred to them by Correctional Service Canada, or CSC, thereby further silencing and marginalizing the rights and voices of prisoners.
Moreover, it has been found that in those instances where IEDMs have ordered the release of prisoners from structured intervention units, or SIUs, CSC officials are taking a longer than average time to comply with that directive compared to the time it takes them to release other prisoners whose release was not ordered by an IEDM.
As such, colleagues, we are not only seeing a failure on the part of the government as it pertains to shutting down the horrific, unacceptable and inhumane practice of segregation: We are seeing a cheapening and disrespect of the role of the independent external decision makers as CSC officials and new policy formulation have served to water down their role and their clout in this process.
Honourable senators, in response to the shortcomings of the government on this matter, Bill S-230 would implement two critical forms of court oversight to correct the systemic overuse of segregation in federal prisons. These two court oversight mechanisms are: prison authorities seeking to isolate someone for longer than 48 hours must seek court approval, reflecting the time frame during which irreversible harm can begin to occur; and prisoners may ask a court for a reduced sentence or reduced parole ineligibility period where conditions such as segregation make their sentence harsher than the sentence they were ordered to serve.
Colleagues, these forms of court oversight are not arbitrarily founded, nor are they created out of thin air. These are based on thoughtful and vital recommendations made by Justice Louise Arbour in 1996 via the Commission of Inquiry into certain events at the Prison for Women in Kingston. As Justice Arbour reflected at that time:
I see no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts.
In light of the government’s inadequate attempt to rectify this heinous issue, it is long overdue for us to dutifully heed the wise and prudent words of Justice Arbour.
Honourable senators, it will come as no surprise to any of you that Indigenous peoples represent a staggeringly high percentage of Canada’s prison population when compared to their percentage of Canada’s general population. This overrepresentation is worse when considering Indigenous women and, worse yet, when considering the makeup of those most impacted by the use of SIUs.
Indigenous women make up half of the women in federal prisons. They also make up a shocking 96% of those women isolated in SIUs. Given this reality, I ask each of you, my fellow senators, to consider some of the profound documents we have collectively championed over recent years in this chamber. We have extolled the virtues of the Truth and Reconciliation Commission’s final report and Calls to Action. We have underscored the importance of the National Inquiry into Missing and Murdered Indigenous Women and Girls, or MMIWG, and their resulting Calls for Justice. We have endorsed and legislated an action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.
That is all well and fine, but that simply represents words on paper. What are we actually doing to rectify the issues touted in these important documents?
Article 7.1 of UNDRIP states that “Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.”
However, we are seeing Indigenous peoples largely being the ones falling victim to the impacts of SIUs wreaking mental and physical warfare on their person and resulting in cases of schizophrenia and worse. Remember that these are women who are in the most vulnerable state.
The Truth and Reconciliation Commission of Canada, or TRC, Call to Action number 30 calls upon “. . . federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody . . . .”
Call to Action number 41 calls upon:
. . . the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls.
However, we see that the number of Indigenous prisoners remains sky-high, and Indigenous women are overrepresented in victimizing situations within our very correctional system by forcing them into these SIUs, despite the known and well-documented deleterious impacts they have on those who face this treatment.
The MMIWG Call for Justice 5.21 calls on the federal government “. . . to reduce the gross overrepresentation of Indigenous women and girls in the criminal justice system.” However, instead, we again see these numbers continue to balloon.
Colleagues, this is the uncomfortable question we must ask ourselves: Are we doing enough? Moreover, are we doing enough to ensure a meaningful, positive change in outcomes for our First Peoples in practice as opposed to simply in theory? We are all very keen and self-congratulatory in passing frameworks and speaking about the need for change; however, Bill S-230 actually actions and moves the needle forward on that change in a real and tangible way.
We often hear of the overrepresentation of Indigenous peoples, and particularly Indigenous women in our prisons. We often hear of the critical importance of those three aforementioned instruments: the TRC’s Calls to Action, the MMIWG Calls for Justice and the many articles of UNDRIP. However, these guiding documents simply provide a road map to solutions; they do not actually provide solutions themselves. These issues will never resolve until we have strong and decisive political will and political action to change the status quo.
We decry the treatment of Indigenous women and agree with how horrific the findings of the MMIWG national inquiry were. Let us take steps toward correcting this issue. Bill S-230 represents one such step. Through its passage, we can stop subjecting Indigenous people and Indigenous women to the cruel and unusual punishment that we see represented within these SIUs.
Make no mistake about it: Indigenous peoples — and Indigenous women in particular — are most impacted by this form of alleged justice. We have a solemn duty to uphold, do the right thing and pass Bill S-230.
Thank you.
I move the adjournment of the debate.
It is moved by the Honourable Senator Martin, seconded by the Honourable Senator Seidman, that further debate be adjourned until the next sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the motion?
All those in favour of the motion will please say “Yea.”
All those opposed to the motion will please say “Nay.”
Your Honour, I’d like to speak on debate.
On debate, Senator Plett.
Your Honour, I am disappointed that an adjournment motion would be turned down on this particular piece of legislation at this point.
As all senators will recall, Senator Carignan, a while back, stood on a point of order, suggesting that this legislation needed a Royal Recommendation. We still believe that it does. You, Your Honour, in your ruling, ruled it did not, and we accept that and appreciate that.
You did this last week, Your Honour, at which time Senator Pate could have risen and spoken to her bill so that we would have all had time to listen to the arguments about her bill and get our critic ready to speak on this bill. Instead, she chose not to. This morning, Your Honour, I learned at our leaders’ meeting, and later on our deputy leader learned at the scroll meeting, that today was the day that Senator Pate was going to speak.
Clearly, Your Honour, when a sponsor of a bill speaks, and two other honourable colleagues spoke after her — and we have a critic, who has been waiting to listen to the arguments about this legislation, and he has not been afforded that opportunity because Senator Pate sits down, and two honourable senators speak for 10 or 15 minutes each. In the meantime, our critic is supposed to try to stand up and put up reasonable arguments.
We believe, Your Honour and colleagues, that this is a bad bill. We believe that, but we would like to get our arguments ready. Bill S-230 poses a significant financial and operational risk for the Correctional Service Canada, or CSC, by mandating the transfer of federally incarcerated individuals with disabling mental health issues to provincial hospitals. The lack of a clear definition of this term could result in a substantial number of transfers, significantly increasing costs to the CSC.
According to the Parliamentary Budget Officer, assuming that 75% of incarcerated individuals suffer from mental disorders, and 50% of those are debilitating, approximately 5,000 inmates would qualify for psychiatric care. This is a significant cost.
Your Honour, we have tried, in collaboration with other senators, to get private members’ legislation across the finish line. Since October, colleagues, we’ve had Bill S-235 by Senator Jaffer; Bill S-250 by Senator Boyer; Bill C-244, a Liberal private member’s bill that came to us; and Bill C-291 and Bill C-294 — these two were Conservative bills. The other three were Liberal or coming from the Independent Senators Group, or ISG.
In November, we’ve had Bill S-269 by Senator Marty Deacon, ISG; Bill S-276 by Senator Kutcher, ISG; Bill C-284, a Liberal private member’s bill, by the ISG. Yet last week, Your Honour and colleagues, you’ll remember that we in the Conservative side called question on two ISG bills because we believed they were good bills, and they had gotten considerable debate, and they were good. So we moved them forward.
Now, we have other legislation before us later today that is very time-sensitive, and this morning we were told, “If this doesn’t happen, that won’t happen.” That’s not the way to negotiate good legislation. If it’s good legislation, let’s vote on it and let’s vote for it. If it’s bad legislation, let’s not. This is bad legislation that we still agree that we will call question on, and there was an offer made, and it was turned down.
So, Your Honour, we are hoping that we can deal with this in a collaborative way, and we are hoping that we will be afforded the opportunity for our critic to properly read the arguments, look at the transcripts of what Senator Pate, Senator McCallum and Senator Bernard raised here today, and other arguments, and come forward with a proper critic’s speech.
Again, Your Honour, I would implore honourable colleagues that we deal with this not based on who is doing it, not based on whether it’s our best friend bringing this forward, but on whether it merits and what the time structure is for something like this. This bill is of no urgency right now, at third reading, if we vote on this today or next week or even the week after. This has to go to the House, which we suspect is probably a little inundated with other issues it is dealing with now. I don’t think they are paying too much attention.
Nevertheless, Your Honour, we made a very reasonable offer, and so, in light of that, I will ask for the adjournment of this debate for the balance of my time.
Senator Plett, I wanted to mention that the adjournment motion was rejected. So we cannot — you cannot adjourn. But you stood up saying that it was rejected, and so you debated. Senator Martin moved the adjournment.
It was not ordered.
But you rose on, what, a point of order?
No, I rose on debate. Your Honour, I rose on debate. Hansard will bear that out. I rose on debate.
Could you please wait just a second? So, we can’t have two different motions on debate. So I just wanted to mention that Senator Martin did move the adjournment of the debate, and you rose. We can’t have two motions to adjourn the debate simultaneously.
Can I ask a question, Your Honour?
Yes.
Why did you allow me to get up on debate? I specifically said I was getting up on debate before the adjournment motion was voted on. Senator Martin made the motion. It was not voted on, and I got up to debate. That is not abnormal that when an adjournment motion gets introduced, somebody gets up on debate.
So no two senators rose to ask for a bell or to call the — therefore, we can’t have two motions, adjournment motions, being voted on.
If I may, I would like to take this opportunity because we have missed some time and some issues. I know that Senator Plett is right when he says that a critic needs some time to fully speak after the sponsor of a bill has spoken. We were still negotiating, Senator Plett and I, and I didn’t have enough time to debrief my group on what was happening.
In a nutshell, if we agree to adjourn the debate on Bill S-230 today, we would also agree that by next Thursday, December 5, we will have a vote at third reading on this.
You can’t negotiate in the chamber.
Yes, but this is the situation that we are in, senator. I’m trying to help to find a solution.
Call the question.
If you don’t want to do this in the chamber, I cannot do more to help you. So thank you.
Senator Martin moved the adjournment. That was rejected. I recognized Senator Plett to speak, so we can’t have two successive motions to adjourn. Therefore — yes, Senator Moncion?
Call the question again.
Senator Moncion, which question?
The question on the adjournment by Senator Martin.
Is leave granted?
I hear a no. Therefore, we’re on debate for this motion.
I was on debate, Your Honour, so that means we opened the debate — is that okay?
You are not going to be adjourning the debate, is that it?
You said —
You proposed the adjournment of the motion.
You said we were on debate, so let’s continue the debate. Is that what I heard you say now, Your Honour?
Yes.
Let me just conclude my debate by saying that I would like to adjourn for the balance of my time.
You cannot adjourn a second time because there is an adjournment motion, which is Senator Martin’s motion. Yes, Senator Wells?
Your Honour, I may not know the Rules as well as you do, but after the adjournment motion was made — from what I understand — there was no decision rendered on that, and then Senator Plett spoke on debate which nullified any previous adjournment motion if there was no debate on it, especially if debate continued.
I would like to suspend the Senate for a couple of minutes because I’m not agreeing with what is being said. Thank you.
Your Honour, that was indeed a suspension worthy of good conversation and some camaraderie coming up to Christmas. I think we have reached an agreement, Your Honour, that leave would be granted if I were to ask for the adjournment at this point. So, with leave, I move that the debate be adjourned until the next sitting of the Senate.
Is leave granted?
So ordered.
