(Chair) in the chair.

[Translation]

Welcome to the Standing Senate Committee on Legal and Constitutional Affairs.

[English]

My name is Brent Cotter. I am a senator from Saskatchewan and chair of the committee. I would like to take this opportunity to invite my colleagues to introduce themselves.

[Translation]

Senator Pierre-Hugues Boisvenu, deputy chair of the committee, from Quebec.

My name is Dennis Patterson. I’m a senator from Nunavut.

[English]

Senator Paul Prosper, Nova Scotia, land of the Mi’kma’ki.

[Translation]

My name is Pierre Dalphond, senator for the De Lorimier senatorial division in Quebec.

[English]

Good morning and welcome. Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.

Mary Jane McCallum from the Barren Lands First Nation, Treaty 10, Manitoba region.

Paula Simons, Alberta, Treaty 6 territory.

[Translation]

Renée Dupuis, independent senator, senatorial division of The Laurentides, Quebec.

[English]

Mobina Jaffer from British Columbia. Welcome.

At this point, I would like to welcome our witnesses today. We have the special opportunity, the second in recent days, to welcome a senator as the lead witness. She is the sponsor of the bill we’ll be considering today. We are now beginning consideration, with Senator Pate, of Bill S-230, An Act to amend the Corrections and Conditional Release Act. I would like to welcome Senator Pate. She is jointed by Emily Grant, her Director of Parliamentary Affairs. Senator Pate, as you know, is a bit of a wallflower and will need assistance, I’m sure. Senator Pate, welcome. The floor is yours for approximately 7 to 10 minutes, after which we will move into the conversation with you.

Thank you very much, and thank you for welcoming me here.

I thank Ms. Grant for joining me to ensure that I navigate these papers, if I need to, and for all the incredible support and assistance she provides to me every day in my office.

Bill S-230 is a law we have subtitled “Providing Alternatives to Isolation and Ensuring Oversight and Remedies in the Correctional System Act (Tona’s Law).” The genesis of this bill was the decision of the government to not accept the Senate amendments to Bill C-83, which was ostensibly supposed to eliminate the use of segregation and solitary confinement in federal penitentiaries and replace them with structured intervention units. When that bill passed in 2019 — or as it was being considered — the Senate Social Affairs Committee made a number of amendments that were accepted by the Senate, which then went to the House of Commons. They were rejected by the government. Those are essentially the amendments we are including in this bill. I should also point out that everything in this bill was also a part of the report of the Human Rights Committee on the human rights of federally sentenced persons. That report was tabled in 2021.

The context for this is that when the Corrections and Conditional Release Act was introduced in 1992 — or when it was promulgated — it was introduced as a piece of human rights legislation with one of the primary focuses being to reduce incarceration and incarceration with restraint in Canada, but according to Canada’s own data, it has not achieved that. We know that Bill C-83 some few decades later shows we have not ended the use of segregation and that, in fact, according to the government’s own data, SIU’s replicate conditions of segregation and solitary confinement. At least one in three people locked in SIUs experience solitary confinement, defined internationally as being in a cell for 22 hours or more without meaningful human contact. For 1 in 10 people in SIUs, the solitary confinement is so prolonged, ranging from sixteen to hundreds of days, that it is recognized under Canadian law and international standards as tantamount to torture.

Conditions of isolation and segregation have also continued to expand outside SIUs in other areas of the prison. As the Correctional Investigator has pointed out in his most recent report, that can come in all kinds of forms. We see it in terms of things that are listed as medical observation, voluntary limited association ranges and even modified movement within penitentiary units. As recently as Friday, when I was in Collins Bay Institution, we heard from medium-, minimum- and maximum-security prisoners that movement within that institution is also severely limited. Currently, that is in part a combination of the post-COVID measures that have not been lifted in terms of limited movement.

In addition, the Correctional Investigator points out that the range of options that are not covered by the current provisions within the Corrections and Conditional Release Act as a result of the amendments made by Bill C-83 are things referred to as secure units, therapeutic units, maximum security, dry cells and what the Correctional Investigator refers to as “hidden cells,” cells that are not categorized either way but that keep people isolated.

The proposed approach in Bill S-230 is four measures to actually end the use of solitary confinement. It would involve requiring judicial oversight of the use of solitary confinement beyond 48 hours. That is consistent with the decision of the courts in Ontario, where it was found that keeping someone in segregation for 48 hours could result in mental health and psychological consequences that could be irredeemable and potentially permanent.

Certainly, the recommendation first came from Louise Arbour following the Commission of Inquiry into Certain Events at the Prison for Women in Kingston in 1996 when she recommended that segregation come under the supervision of the courts. In her estimation at that time, more than 20 years ago, the reality was that Corrections could not be relied upon to ensure that the law was followed.

The ministerial advisory panel that was put in place to monitor structured intervention units has repeated this message. In fact, it has indicated that, as of mid-2020, Correctional Service Canada itself was recognizing that many of its decisions were not being followed and that the oversight was inadequate to ensure adherence with the law.

The other recommendation for judicial oversight involves the recognition that Louise Arbour made, also in 1996, that where the treatment individuals receive at the hands of CSC amounts to correctional interference with the lawful sanction, that should be reviewable by a judge in the same way a judge can, in a sentencing situation, review sentence and determine that the conditions of confinement pretrial should be recognized in shortening a sentence. So that remedy is also included.

In addition, given the reality that we disproportionately see Indigenous and Black prisoners in segregation, consistent, again, with the amendments that the Senate made in 2019 to the Corrections and Conditional Release Act when Bill C-83 was being considered, there is an expansion of the sections 29, 81 and 84 provisions. Those would encourage the use of mental health services in the community through section 29 for those individuals with disabling mental health issues. They would also push for the increased use of community-based options consistent with sections 81 and 84 of the Corrections and Conditional Release Act for Indigenous peoples, while also recognizing the legislative intent was also that those provisions could apply to non-Indigenous prisoners to expand that in light of the proliferation of individuals, particularly those of African descent as well as other prisoners, whether trans prisoners or others finding themselves disproportionately segregated.

Also, it encouraged the use of mental health professionals to ensure that when assessments are being done in terms of mental health issues, that the reliance is not on individuals who don’t have mental health training. For instance, currently, those assessments can be done by someone who has literally a page with a tick-box exercise but doesn’t necessarily have mental health training to perform those assessments. So it is really reinforcing again what the Social Affairs Committee amendment recommended, which was that mental health professionals be the ones conducting assessments, and where those are not available within the prisons — based on evidence of Correctional Service Canada and the Correctional Investigator — those assessments should be done outside the prison.

I think my time is probably done. I welcome your questions. This bill represents provisions that the Senate has already passed and has already considered in both the Social Affairs Committee and the Human Rights Committee, as well as in passing the amendments to Bill C-83.

We will now turn to questions from senators.

[Translation]

Welcome, Senator Pate.

I would like to correct a piece of information, namely that Canada practised torture in penitentiaries, whereas actually, intervention units comply with the Nelson Mandela Rules, which stipulate, among other things, that an inmate in a structured unit must spend at least four hours a day outside his cell and two hours interacting with other inmates. This statement needed to be corrected.

This is my first question: the patients you are targeting in your bill would likely be transferred, in part, to provincial hospitals, right?

[English]

First of all, in terms of your comments about torture, it is very clear that the Nelson Mandela Rules outline that anything beyond 15 days is tantamount to torture, and these are not just my words. These are the conclusions that the Structured Intervention Unit Implementation Advisory Panel to the minister have identified, and as part of that evidence, they internally produced a memo —

[Translation]

Canada applies the Nelson Mandela Rules; it wasn’t a question.

My question is about the people who will be covered by your bill. Can a certain number of people be transferred to provincially-run hospitals?

[English]

Yes. So individuals with mental health issues —

[Translation]

Fine. Can —

[English]

Senator, you posed a question. Let Senator Pate answer, please. I’ll give you more time. You are the critic on the bill.