Bill C-83 is inching closer to becoming law after being referred to the Senate Committee on Social Affairs, Science and Technology for a study of its potential impacts on Canadians, particularly those within our federal prison system.
At first glance, the bill appears to put an end to Canada’s segregation or solitary confinement regime, parts of which were recently struck down by the Ontario Court of Appeal as unconstitutional. Bill C-83 also relies on the Correctional Service of Canada (CSC) to monitor and report its own human rights abuses within prison walls without any additional transparency or accountability measures. So, the bill will not merely maintain the status quo, it will make things much worse.
The courts have confirmed that solitary confinement violates Charter guarantees. Our judiciary, as the guardian of our Charter, must have the ability to play its crucial constitutional role of upholding the rights of all individuals, particularly those who are most vulnerable and marginalized in prisons, such as women, Indigenous people and those with disabling mental health issues.
In fact, more than 23 years ago, the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, chaired by former justice Louise Arbour, recommended judicial oversight of CSC in order to prevent human rights abuses associated with segregation. The commission pointed out that “the lack of public scrutiny [of CSC] is in stark contrast to accountability processes in the law enforcement and judicial branches of the criminal justice system.”
Legal experts continue to highlight the need for judicial review as a means of introducing accountability in corrections. At the Senate social affairs committee on May 9, emeritus law professor Allan Manson of Queen’s University and Professor Debra Parkes of the University of British Columbia Faculty of Law stressed that this bill, if passed in its current form, will be deemed unconstitutional by the courts. They said meaningful external oversight, which is severely lacking, must be implemented to ensure that constitutional standards are met.
It was the ongoing lack of oversight and accountability that contributed to such devastating events as the death of Ashley Smith, a 19-year-old girl who died in segregation — where she spent her entire time in federal custody — despite being on suicide watch and as correctional officers looked on. Her death was ruled a homicide.
The Correctional Service of Canada is an outlier when it comes to judicial oversight of state actors. As the Arbour Commission said, the rest of our criminal justice system is exposed to intense public scrutiny and accountability. Why should CSC get a free pass? It is time to make judicial oversight of this agency a reality.
Those who may doubt the capacity of the courts to perform judicial oversight on the CSC’s decisions in a timely manner need not be concerned. In a legal analysis that will be submitted to the social affairs committee, Manson, a specialist in prison and sentencing law, indicates that judicial review “would be more effective and efficient than the complicated and burdensome Bill C-83 scheme.” Manson says the process would be expeditious, and that the decision maker would be competent to address the relevant questions, including questions of law, and would have the authority to make orders to remedy decisions about continued confinement or the conditions of confinement.
In addition to its failure to provide judicial oversight, Bill C-83 contains numerous vague provisions that leave room for broad interpretation, which can foster procedural abuse.
In its official statement about the Charter implications of Bill C-83, the Department of Justice claims that the legislation respects prisoners’ most fundamental rights by providing for regular reviews of their confinement in a structured intervention unit (SIU) — the purported replacement for segregation. In certain circumstances, this review will be performed by an “independent external decision maker.” But the bill fails to indicate who this decision maker would be.
The bill also bolsters CSC’s discretionary and arbitrary decision-making powers. Worse still, these decision-making processes are to be prescribed by law in regulations made by the government at a later time, further risking and perpetuating the violations of basic constitutional and human rights of prisoners.
In addition, SIUs do not, as the government claims, eliminate segregation and thereby promote the values protected by section 12 of the Charter. Rather, SIUs merely rebrand and rename existing segregation units.
We might ask why solitary confinement needs to continue under any label. CSC told the social affairs committee it has fewer than 300 men and 3 women in segregation. The agency says it wants to eliminate the practice. The Parliamentary Budget Officer (PBO) has identified four non-segregating alternatives as less expensive and likely more effective. CSC has the highest staff-to-prisoner ratio internationally (more than one staff member to every prisoner). There is no reason that it cannot develop real alternatives — those studied by the PBO or others — to segregation.
The federal government continues to argue that Bill C-83 represents a step forward for corrections. The expert evidence and court rulings continue to prove otherwise.
It’s time to make meaningful changes to correctional services and give our experienced and capable judiciary the ability to keep the Correctional Service of Canada in check and correct it, when it breaches the law.
Senator Kim Pate represents Ontario in the Senate.
This article appeared in the May 10, 2019, edition of Policy Options.