Honourable senators, I rise today as the critic for Bill S-230 entitled An Act to amend the Corrections and Conditional Release Act, which was introduced by the Honourable Kim Pate.

Bill S-230 is based in part on the amendments adopted by the Senate during study of Bill C-83 in 2019, amendments that weren’t accepted by the government when the bill passed. Introduced in response to two provincial supreme court rulings, Bill C-83 sought to put an end to what we used to call “solitary confinement,” which was deemed unconstitutional.

At the time, the courts ruled that, as practised in Canada, solitary confinement contravened the Canadian Charter of Rights and Freedoms. The government introduced structured intervention units, SIUs, to replace solitary confinement.

In the speech she gave at second reading in November 2021, Senator Pate first made a substantive criticism of Bill C-83. In her estimation, the bill was a mistake as it failed to really address the constitutional issues raised by the courts. She stated that the government had promised to put an end to solitary confinement in federal prisons and that it hadn’t kept its promise.

Bill S-230 was introduced to fix some of the problems with Bill C-83 and act on the recommendations of the Standing Senate Committee on Social Affairs, Science and Technology, which, I should point out, hasn’t received a response from the government either.

Bill S-230 lays out four very specific objectives in its summary:

(a) require that, if a person who is sentenced, transferred or committed to a penitentiary has disabling mental health issues, they will be transferred to a hospital;

(b) ensure that a person may only be confined in a structured intervention unit for longer than 48 hours on an order of a superior court;

(c) allow for the provision of correctional services and plans for release and reintegration into the community to persons from disadvantaged or minority populations by community groups and other similar support services; and

(d) allow for persons who are sentenced to a period of incarceration or parole ineligibility to apply to the court that imposed that sentence for a reduction if there has been unfairness in the administration of their sentence.

The objectives of the bill I just cited would result in major amendments to the Corrections and Conditional Release Act. I also have serious reservations about whether it is legal and feasible, particularly with respect to clauses 4, 5 and 11 of the bill.

Clause 4 of Bill S-230 adds a section to the Corrections and Conditional Release Act requiring that any inmate with a disabling mental disorder be transferred to a hospital.

The requirement for a commissioner to systematically transfer inmates to the hospital simply because of a disabling mental health condition seems problematic to me in many respects. It would, in effect, transfer a federal responsibility to the provinces, which raises serious concerns. Have all the provinces been consulted, as I did with my Bill S-205 with the justice ministers? Do the provinces have the medical, physical and financial capacity to increase the number of institutionalized patients in their facilities? If so, how do we ensure the safety of hospital staff and other patients?

The bill doesn’t define “disabling mental health issues.” We know that mental health is a complex subject and a big concern in both our prisons and our communities. Many inmates in Canada, both male and female, have varying degrees of mental health issues. These issues can vary, depending on the case, and there are some degrees of disability that definitely don’t require transfer to a hospital.

I would remind senators that it is possible to access health care services in prison. I saw it for myself when I visited and spoke with various correctional workers. According to the Correctional Service of Canada’s statistics, 35% to 40% of male inmates and 50% of female inmates have some sort of mental health issue. In theory, the senator’s bill could result in nearly 5,000 inmates being transferred to provincial health care facilities, and that doesn’t even include inmates in provincial detention centres who could also end up being affected by this bill.

This clause, as written, would replace detention centres with hospitals, which is implausible from a judicial point of view. Furthermore, the bill gives no indication of the length, or review, of the hospitalization period. These ambiguities in the bill suggest that inmates could spend their entire sentence in a hospital, even if their mental state doesn’t require hospitalization. If applied in such a way, this clause is in direct conflict with the Mental Health Commission of Canada, whose mandate is to manage the institutionalization or non-institutionalization of not criminally responsible criminals.

Moreover, the bill contravenes section 15.1 of the corrections act, because detention in a hospital would prevent inmates from accessing programs or services in detention facilities that can help them succeed in their correctional journey and eventually reintegrate into society. This is completely contrary to what section 15.1 of the act states.

I would remind senators that Canada’s justice system already provides for the assessment of a person’s ability to cope with legal proceedings, throughout the process. When a court renders a verdict, it has the discretion to take into account the mental state of the accused and to impose a fair and appropriate sentence. In my opinion, it is unthinkable that an inmate who faced legal proceedings and who was sentenced by a court for the crime they committed to automatically be transferred to a hospital simply because they’re supposedly suffering from a disabling mental health issue. This approach would be medically irresponsible and unfair to the victims and their families.

The solution isn’t to offload the federal government’s problem onto the provinces; rather, we need to take responsibility and commit to improving psychiatric services in federal penitentiaries. Just because I’m suggesting that we improve those services doesn’t mean that we shouldn’t look for solutions other than incarcerating people with mental health issues, far from it. I share Senator Pate’s goal, but what she wants to do is exactly what many provinces did in the 1980s and 1990s with their deinstitutionalization policies. We all remember what happened there. Quebec, for example, closed over 50% of its psychiatric beds without giving families and communities the resources they needed to take care of many of these patients who ended up living on the streets of our big cities and now even our small communities.

If we pass Bill S-230 without giving some serious thought beforehand to how Canada deals with mental health — which we have to admit is a pathetic failure — all we will do is exacerbate homelessness in our cities. This is a major social issue. Does the Senate want to see more homeless people with mental health problems on our streets rather than in federal penitentiaries?

This approach is absurd considering that sick people will go from the penitentiary to the hospital, from the hospital to the street, from the street to the court and from the court to the penitentiary. Honourable senators, that social dynamic is called a revolving door. We need to stop it from revolving. Mental health services in Canada are underfunded, and your bill, Senator Pate, isn’t in order if it doesn’t include upstream funding for solutions that come before incarceration.

Honourable senators, I’d like to talk to you about the reality of the situation when it comes to psychiatric services for incarcerated offenders in Quebec. Consider the example of the Philippe-Pinel Institute, a well-known psychiatric treatment centre located in the east end of Montreal. Barely 48 hours ago, Le Journal de Montréal reported that the institute submitted a letter to the Montreal courthouse to inform the court that the institute is currently unable to respond to the exponentially increasing volume of requests for psychiatric assessments of offenders. The Philippe-Pinel Institute typically receives about 40 requests for psychiatric assessment each year, although the agreement with the government provides funding for 15 assessments.

The provinces, including Quebec, are already overburdened in their ability to manage this clientele. It would be irresponsible to add to their task by sending them the offenders covered by Bill S-230, when in the last year alone, the numbers have exploded by 50%, with more than 60 applications, because of court delays.

Let’s not forget that the Criminal Code provides that a psychiatric assessment is to be carried out within 60 days and, in the event of a problem, the court may, if it is convinced to do so on reasonable grounds, extend that reporting deadline by 30 days. This means that the deadlines are systematically extended. The Pinel Institute is overwhelmed. It has only six experts to take on the many assessments and two of them are retiring within the next 18 months. As such, I’m sure, honourable colleagues, that you understand that the provinces already have more than enough on their plate and they can’t absorb even more without this disastrous mental health situation getting worse. Again, this worrisome situation proves that we have to seriously consider the capacity of the provinces to manage this federal responsibility.

Honourable senators, I’d now like to talk about clause 5 of Bill S-230, which deals with SIUs. As I was saying a little earlier, structured incarceration units were created to replace solitary confinement in order to comply with Canada’s Constitution and international standards established by the United Nations entitled the Nelson Mandela Rules. At present, the units are in compliance with the Nelson Mandela Rules when the inmates in the structured intervention units are allowed to spend at least four hours per day outside their cell in addition to having at least two hours of interaction with other inmates and participating in activities and programs. The health of these inmates must also be closely monitored. Therefore, I disagree with Senator Pate, who stated that Canada practises torture in its penitentiaries. In my opinion, this analysis is incorrect and based on a relatively subjective interpretation of the international standards, unless Senator Pate can give us her definition of torture.

To fix the system created by Bill C-83, Bill S-230 provides that stays in an SIU must be limited to just 48 hours, and only a superior court judge may extend this period.

This new system introduced by the bill is unfeasible and unrealistic in practice, and would also be restrictive for the inmates themselves. Take, for instance, an inmate who’s transferred to an SIU for security reasons. A 48-hour period would be too long in many cases to rule out any threat to his security, and an application to a higher court for an extension could take more than 48 hours to process. The inmate would therefore be transferred back to the general population despite the risk to his safety. This would be contrary to Senator Pate’s objective, as it could put the inmate’s safety at risk, and prison management could be blamed for being lax.

The SIU is a tool available to the Correctional Service of Canada to help inmates safely reintegrate into the prison population. Some of them even prefer to remain in the SIU for personal safety. I have observed this when I have visited penitentiaries, and you have to be naive about prison life to be unaware of this.

Bill S-230 doesn’t set out any exceptions to the rule; therefore, an urgent court order would be required to extend an inmate’s time in an SIU. Without such an order, the inmate would be returned to prison, which could jeopardize his safety.

Colleagues, clearly this provision would complicate the detention centres’ work and add to the work of the superior courts, not to mention the additional resources that would be used to manage this judicial process. There could be cases of inequality based on the geographic location of the detention centres. Some are much farther from the courthouse than others, making it more difficult for them to obtain a court order within the 48 hours provided for in this bill. This rigid approach would be contrary to Senator Pate’s goals. The current system is working, so let’s let the prison authorities deal with what is within their jurisdiction. As the saying goes:

If it ain’t broke, don’t fix it.

Now I want to talk to you about clause 11 of the bill, which seeks to enforce its fourth objective, to apply to the court that imposed a sentence for a reduction of the period of incarceration or parole ineligibility if there has been unfairness in the administration of the sentence. This clause would create a new recourse under the Criminal Code, allowing the trial court to change the sentence it handed down in order to grant a reduced sentence to an inmate who experienced unfairness in the administration of their sentence.

Although I oppose such a provision in principle, I also believe it would be challenged before the courts and unenforceable from a legal perspective and under the Criminal Code. The Criminal Code doesn’t allow a judge to change the sentence delivered for the reasons listed in the new proposed section in the bill. Generally, a court can’t re-examine a decision it made and change its ruling. This clause of the bill shows a lack of knowledge of the Canadian justice system because this legal responsibility belongs to Canada’s appellate courts.

Senator Pate’s bill calls into question the fundamental principle of the definitiveness and stability of rulings. We can foresee that the proposed new remedy for reducing a sentence could not really be enforced and implemented by the courts, because it would be asking a court that has handed down a sentence to re-examine it and change it based on new considerations that have absolutely nothing to do with the principles of criminal justice that the courts must adhere to in order to render a fair and appropriate sentence.

I would nevertheless like to remind senators that other legal and constitutional remedies already exist to meet the objectives. Section 10(c) of the Canadian Charter of Rights and Freedoms already provides a remedy by granting the right to have the validity of a deprivation of liberty determined by a superior court justice. The Criminal Code provides for the same remedy when, for example, a detention centre decides to place an inmate in an SIU. In support of my remarks, I would like to cite a relevant passage from the Supreme Court of Canada:

Habeas corpus is a remedy, developed by common law and enshrined in section 10(c) of the Canadian Charter of Rights and Freedoms, that allows an inmate to have the Superior Court determine the validity of their deprivation of liberty and, if it is unlawful, to obtain release. In the correctional context, habeas corpus allows inmates to challenge a loss of residual liberty decided by the authorities, that is, a significant restriction of liberty in comparison to the relative liberty they would normally have in a penitentiary setting. Loss of liberty implies a decrease in freedom in comparison to an initial state. Deprivation of liberty is unlawful when it results from a jurisdictional error, an error of law or a lack of procedural fairness or when it is unreasonable.

Clause 11 of Bill S-230 is therefore unnecessary because of the many remedies that already exist and that serve the same purpose as those set out in Bill S-230. This bill would also be burdensome for correctional services, which would lose a significant amount of discretion already vested in the independent correctional courts and our courts, which have already indicated as a matter of principle that they will not micromanage.

Honourable senators, I do understand the purpose of this bill and Senator Pate’s very noble intention of creating a more just, more humane justice system for criminals, but I am not convinced that Bill S-230’s proposed new amendments will achieve the initial objectives. Bill S-230 might actually be more restrictive for offenders themselves, some of whom may not wish to be incarcerated in hospital or removed from an SIU after 48 hours.

In conclusion, I hope I have made it clear to you all that I cannot support Bill S-230. However, I would once again invite Senator Pate to join me in setting up a meeting with Canada’s health and public safety ministers so we can ask them to reinstate the At Home/Chez Soi community program, which was very popular in a number of cities across the country. It yielded convincing results, reducing the number of people with mental health problems who ended up back in the justice system.

Senator Pate, I am sincerely offering to collaborate with you to turn federal penitentiaries not into psychiatric institutions, but into institutions that take in criminals who have no place on our streets. I hope, Senator Pate, that we will soon have the opportunity to study this bill at committee. Thank you.