Honourable senators, today, I am speaking at third reading of Bill S-230, whose short title is “Providing Alternatives to Isolation and Ensuring Oversight and Remedies in the Correctional System Act (Tona’s Law)”. I am speaking in place of our former colleague, the now retired Honourable Pierre-Hugues Boisvenu, who was the critic for this bill at second reading.

On October 24, I rose on a point of order because I believed then, as I do now, that this bill requires a Royal Recommendation.

On November 20, the Speaker ruled in favour of continuing to study this bill, a decision I respect.

Since the debate can continue, I’m rising today to share my concerns about this bill, which I believe mean that it should not be sent to the other place.

My first thought is that Bill S-230 does fully consider the administrative and financial consequences it could have for the various public systems that will inevitably be affected if it is passed. I am thinking in particular of the justice, correctional and health care systems, as well as all the stakeholders in the sectors I just mentioned.

As a result, I have three major concerns about Bill S-230, particularly regarding clauses 4, 5 and 11.

First, clause 4 of the bill aims to ensure that anyone who is sentenced, transferred or committed to a penitentiary and has disabling mental health issues is transferred to a hospital. I’m puzzled by the term “disabling mental health issues,” given the lack of any real definition, the potential number of people it could cover and, as a result, the overload it could create for certain provincial hospitals that are already stretched to the limit.

On February 8, 2024, the Standing Senate Committee on Legal and Constitutional Affairs heard from a number of witnesses, including Dr. Mathieu Dufour, a forensic psychiatrist and head of the Department of Psychiatry at the Philippe-Pinel National Institute of Forensic Psychiatry. I asked for his expert opinion on how many people in a federal penitentiary might be suffering from one of the symptoms listed in section 37.11 of the Corrections and Conditional Release Act. This section sets out the grounds that officers must consider when determining whether to refer an inmate to the health care service. Those grounds include refusing to interact with others, engaging in self-injurious behaviour and showing signs of emotional distress.

According to Dr. Dufour, these criteria apply to the majority of inmates. He said:

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.

The vague term used in Bill S-230, “disabling mental health issues,” is so broad in scope that we can expect a significant number of transfers to be authorized by the commissioner, and it goes without saying that, in addition to overburdening the provincial hospitals, this will lead to a considerable increase in costs for Correctional Service Canada.

What’s more, in his report on the cost estimate for Bill S-230, the Parliamentary Budget Officer addressed the term “disabling mental health issues” and predicted the percentage of the prison population that it could apply to.

His report made it clear that this measure of the bill will apply to a staggering number of inmates. He shared the following statistics:

The term could be interpreted to include a majority of persons in custody, as prior research has found that 73% of males admitted to federal custody meet the criteria for a current mental disorder. Of those, most have moderate to severe impairment of functions. Rates for mental disorders among female incarcerated persons are even higher. These figures relate to mental health status at time of admission and are not necessarily representative of the general population in custody. However, assuming 75% of incarcerated persons have mental health issues, and 50% of those have disabling mental health issues, this would suggest that about 5,000 incarcerated persons (38% of the 13,000 total population in custody) would be eligible for psychiatric care.

I wonder what we are trying to accomplish through this bill. Do we want to turn our hospitals and psychiatric facilities into penitentiaries? This bill contains no additional measures to ensure the safety of nursing staff or vulnerable people receiving care in health care facilities.

Even without the measures in this bill, we already have reason to be concerned for the safety of staff in the correctional system and in the health care system.

For example, according to a recent article on the Noovo Info website, on December 1, 2024, a correctional officer was savagely assaulted at a detention centre in Sorel-Tracy. His attacker, who was awaiting trial in connection with an assault case, has suffered from schizophrenia since the age of 17 and has a drug addiction problem. The article states:

The correctional officer who was beaten . . . could lose his eyesight, and his condition suggests he may have suffered other serious injuries. . . . Sources say that Sunday’s attack was so violent that it left him unrecognizable.

Honourable senators, my point is this: If an inmate with mental illness and a criminal record for violent crimes is authorized for a transfer, it seems unlikely that our hospitals and psychiatric institutions will be equipped to adequately ensure the safety of their staff and the other patients.

The other point I wish to address concerns clause 5 of the bill. This clause creates an obligation for Correctional Service Canada to obtain the authorization of a superior court in order to extend the duration of a person’s confinement in a structured intervention unit beyond 48 hours. In my opinion, there are three major problems with this clause: It creates tight deadlines for obtaining court orders; it will increase the workload of already overburdened superior courts; and Correctional Service Canada will need more resources to deal with this process.

During her speech at third reading, Senator Pate stated the following:

“Courts will be able to rise to this challenge.”

I find this statement puzzling. As I see it, Senator Pate is downplaying the problems that this bill will cause, especially because it is poorly drafted. Members of the legal community were not consulted. If they had been, they would certainly have pointed out that our superior courts are ill equipped to handle an increase in urgent applications for orders with such short deadlines.

This bill definitely has tunnel vision. It sees nothing but the rights of inmates. It ignores anything that confirms that this bill is unreasonable, and it negates the rights of victims.

Even defence attorney Michael Spratt, who often gives evidence in committee, admitted that there’s a lack of resources. He said:

I’ll be candid, I think it would put a strain on a superior court. We’re already experiencing a lack of resources and an overtaxing of what resources we have.

Take a minute to imagine how many cases would come before the superior courts. I’ll cite the figures given by Senator Pate during her speech at third reading, and I quote:

 . . . 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.

Think about it: 60 days. Under the bill, a superior court will have to be asked every 48 hours for permission to extend the duration of confinement in the SIU. Yes, every 48 hours. I’m convinced that Bill S-230 will cause many serious problems and is unworkable in practice. It’s an illusion to think that the justice system can respond to the surge in demand that the bill will cause, or that the health care system can cope with so many inmates being admitted to our provincial hospitals.

Finally, I would like to address one last reason I will not be supporting this bill. It concerns clause 11. The purpose of clause 11 is to enable any person who is sentenced to a period of incarceration in a federal penitentiary to apply to the court that imposed the sentence to reduce that period based on unfairness in the administration of their sentence. I am obviously against this provision, which contradicts the fundamental principle of the definitiveness of rulings and the Criminal Code rules, which do not allow a court to review or alter a sentence that has already been handed down. That responsibility is reserved for appeal courts.

This provision could also be challenged before the courts, which makes its application unrealistic. What is more, legal and constitutional remedies already exist to meet the objectives of this provision without requiring such a mechanism.

In short, this bill was poorly written from the start and contains many flaws. In addition to those that I mentioned earlier, I also noticed other problems with this bill.

For example, the provision regarding sentence reduction reads, and I quote:

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 . . .

The use of the terms “appropriate and just” may lead to a lot of headaches for the courts. I might also point out that this sentence reduction process does not include any obligation to consult the victims.

In closing, honourable senators, I cannot support Bill S-230 for all of the reasons that I just outlined, and I encourage you to vote against it at third reading.

Thank you.

The problem is dealing with people who have mental health problems, who have weapons and who could be at risk. Regardless of their legal status when they commit crimes, some people have serious mental health problems. If they are admitted to hospitals, they could compromise the safety of health care workers.

Look, I think so. There are people who might agree with this bill. But from a practical point of view, he admitted that this is going to create major challenges in practice, and I think he was right.

Imagine a 60-day period. Every 48 hours, every two days, someone has to go before a Superior Court judge to renew the authorization for a 48-hour confinement. It’s bound to fail. Since it’s bound to fail, what’s going to happen? The inmate will say, “I’m being held in a unit illegally or for too long. I’m not being transferred to a hospital, and I want a reduction in my sentence.” There will be a lot of requests from inmates to have their sentence reduced. In fact, this will get criminals out much faster.

Are honourable senators ready for the question?

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

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “yeas” have it.

Your Honour, we wish to defer the vote to the next sitting of the Senate, please.

Pursuant to rule 9(10), the vote will be deferred to 5:30 p.m. on the next day the Senate sits, with the bells to ring at 5:15 p.m.