(Chair) in the chair.

[English]

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

Senator Denise Batters from Saskatchewan.

Welcome. My name is Bev Busson. I am a senator from British Columbia.

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

Senator P.J. Prosper, Nova Scotia, land of the Mi’kmaq people.

Paula Simons, Alberta, Treaty 6 territory.

[Translation]

Bernadette Clement, from Ontario.

Renée Dupuis, senatorial division of The Laurentides, Quebec.

[English]

Thank you, colleagues.

Honourable senators, we’re meeting to continue our study of Bill S-230, An Act to amend the Corrections and Conditional Release Act. We have two panels today. The first panel is made up of three speakers, and I’d like to welcome, firstly, from the Canadian Association of Elizabeth Fry Societies, Nyki Kish, Associate Executive Director. Ms. Kish is joining us by video conference. Welcome, Ms. Kish. From the John Howard Society of Canada, Catherine Latimer, Executive Director, and Ms. Latimer joins us in person. Welcome, Ms. Latimer. From the Criminal Lawyers’ Association, Kate Mitchell, lawyer and doctoral candidate at the University of Toronto, and Ms. Mitchell is joining us by video conference. Welcome, Ms. Mitchell.

Each of you will be invited to address us for approximately five minutes. Following that, we will have questions and conversations with you initiated by senators.

Let’s start in the order that I’ve just described. Ms. Kish, would you like to go first? The floor is yours.

Thank you, honourable senators, for inviting me here today. Since the early 1980s, the Canadian Association of Elizabeth Fry Societies, or CAEFS, has maintained a strong presence in Canada’s penitentiaries designated for women. We conduct monthly visits inside each one and produce detailed records which document prison conditions and demonstrate widespread contradictions between the written rules regulating this system and its realities.

Canada’s prison system is indeed intensely regulated — but without effective accountability structures. The result is evident in the outcomes: a population hovering under 13,000 people federally incarcerated at any given time, but which requires approximately $2.5 billion in direct annual costs to be maintained and which produces a host of known adverse impacts.

We ask what the purpose is of laws that are not subject to oversight and redress. The prison system itself exists to ensure that the rule of law is upheld, yet ongoing calls from the Office of the Correctional Investigator, from CAEFS, from many of my colleagues before you, and from every major commission and inquiry which looked at this system have concluded that it needs many changes, such as those provided in this bill, including pathways from prison for the many people who do not need to be there, moving them into systems capable of responding to their needs.

The question ought not to be, “should we pass this bill,” but “why have we not done so sooner?” If the system were not so overwhelmed responding to poverty, addiction and mental health, it could more meaningfully respond to the very small percentage of people who pose an ongoing risk.

Importantly, this bill pronounces existing legislative priorities. Section 4(c.2) of the Corrections and Conditional Release Act requires that every decision made by the Correctional Service of Canada is done with a view to alternatives to custody. In its very limited uptake, we see success. I nod to the transfers of federally sentenced people into community-based addiction treatment facilities; this is what works, this is what returns people to the community in safe ways for everyone.

Unfortunately, most decisions are not made with this view. Most decisions are overly restrictive, and much of what happens in Canadian penitentiaries should shock the public. This is why allowing persons to apply for a remedy, if there has been a demonstrated unfairness in the administration of their sentence, constitutes a much-needed tool in our justice system.

Our institutions need to demonstrate the fairness and accountability they expect of individuals. This provision will increase the public’s faith in and trust of the justice system, and reduce the reactionary costliness of future lawsuits. I point to the $28 million recently awarded to individuals who have experienced segregation in Canada.

We applaud the bill’s oversight mechanism in relation to segregation. Structured Intervention Unit implementation, or SIU’s, as a member rightly noted, was “well-intended but poorly executed.”

Well-intended but poorly executed is the modus operandi of the prison system. All is well on paper, but flawed in practice.

On paper, SIUs respect the Mandela rules. In practice, they are failing. On paper, people get out of their cell confinement and get meaningful human contact up to four hours per day. In practice, people refuse; they are depressed because it’s not meaningful to spend those hours on camera only interacting with staff in positions of power over them who are writing down and scrutinizing everything they say and do. And it is not meaningful to sit alone in a small cold yard with only concrete and chain-link fences to look at.

There’s an individual currently in SIU in a prison designated for women, who, as of today, has been there for 49 days. We know that segregation for any length of time is traumatizing, but there are emergent patterns of “long stayers” in the SIUs, and among these long stayers are predominantly Indigenous women and gender-diverse people and those with significant mental health needs upon admission. As the independent advisory panel finds, the SIUs are producing mental illness. These patterns are just the same as they were in the previous administrative segregation and management protocol regimes.

This individual is awaiting transfer to a different institution, which will not occur for at least another week, and we have no indication whether she will be readmitted into a new SIU when she arrives. Unlike the men’s sector, all of the prisons designated for women, except the healing lodge, have SIUs. This has resulted in placements becoming a relatively easy population management strategy with dangerous implications. In prisons for women, at least, SIUs are used primarily as a mental health response.

We should not accept conditions that harm people and release individuals in worse shape than when they arrived. It’s due time we transfer health needs to health systems.

Thank you, and I look forward to any questions you may have.

Could I invite Ms. Latimer to address us now.

Thank you, senators, for the kind invitation to hear the perspective of the John Howard Society of Canada on Bill S-230.

The John Howard Society has a long-standing interest in curbing abuse of solitary confinement, and we are very interested in and supportive of the direction of Bill S-230.

We think it’s extremely important to define what we mean by solitary confinement, given that federal prisoners are being subjected to what the UN defines as solitary confinement both within and outside of the structured intervention units. We agree that an accurate statutory definition is needed in order to provide safeguards to all federal prisoners subjected to solitary confinement.

Rather than the definition proposed in Bill S-230 that extends the definition of structured intervention unit to some cases of isolated confinement, the John Howard Society would prefer a definition of solitary confinement consistent with the UN definition, which is 22 hours in a cell without meaningful human contact per day.

Whether that is occurring within the structured intervention units or elsewhere in the prison, we would also like to see prolonged solitary confinement, which is 15 consecutive days of solitary confinement, or more, expressly prohibited, as it is in the Mandela Rules.

We think judicial oversight is extremely important in solitary confinement. As the annual report of the Structured Intervention Unit Implementation Advisory Panel revealed, the independent external decision makers that were intended to ensure procedural fairness in placement and management of solitary confinement in structured intervention units are inadequate. A greater reliance on judicial oversight in terms of placement and management of those in solitary confinement would provide an important safeguard against abuse.

The John Howard Society also believes that the responsibility for both physical and mental health care of prisoners should rest with health care authorities and not with correctional ones. We agree that those with disabling mental illnesses should be transferred to psychiatric hospitals. In particular, we support the proposed amendment in clause 6(1). The deterioration of the mental health of those placed in isolated confinement is well known and should be taken seriously. The statutory requirement that a mental health assessment must be done within 24 hours is bolstered by the proposal that a person placed in isolated confinement should be transferred to a hospital, if the correctional authority is unable to do the assessment within the time frame.

Disadvantaged, Indigenous and marginalized populations — we agree that tailored, culturally relevant approaches are important for Indigenous people as well as for others who have suffered disadvantage. The definition, however, might not be inclusive.

Many prisoners have experienced the disadvantages of abuse, foster care, poverty, violence and other childhood traumas and have not experienced discrimination as seems to be required by the section. It would be regrettable if people in equal positions of need for community programs were denied access to them. Is it possible to have a more inclusive definition of “disadvantaged” in order to ensure that supportive community-based programs are open to those who would benefit from them?

The John Howard Society fully supports clause 11 of the bill, which proposes an application to the courts for a reduction of the sentence or a period of parole ineligibility if the sentence has been unfairly administered.

In conclusion, Minister Goodale’s prediction that Bill C-83 would end solitary confinement in the federal prison system was, indeed, overly optimistic. Solitary confinement is occurring both in the structured intervention units and in many other places in the prisons. I think critics are generally concerned that this consisted mostly of a name change, and that there has been no substantive progress over what we had in terms of administrative segregation.

While Bill S-230 will address some of the abuses, the promised comprehensive parliamentary review that was due to begin at the start of the fifth year after Bill C-83 came into force is vitally important. The start of the fifth year was in June 2023. The John Howard Society of Canada urges this committee to begin the review of Bill C-83 and to produce the required report setting out recommended reforms.

I’m happy to answer any questions that you might have. Thank you.

Thank you, Ms. Latimer.

Ms. Mitchell, the floor is yours.

Good afternoon and thank you for allowing me to be here today. I’m here today on behalf of the Criminal Lawyers’ Association, or CLA, an organization of lawyers committed to providing a voice for criminal justice and civil liberties. We strongly support Bill S-230, which provides vital safeguards for the people in the federal correctional system, and we endorse the submissions of the Canadian Prison Law Association.

In the 1996 report of the Commission of inquiry into certain events at the Prison for Women in Kingston, Justice Arbour described a breakdown of the rule of law in corrections. Unfortunately, not much has changed, and the annual reports of the Office of the Correctional Investigator catalogue some of the many abuses and illegality that persist in the federal system. Serious reform is needed, and Bill S-230 is an important first step.

Segregation is deeply damaging and still overused in the correctional system, and the CLA supports extending the safeguards and protections offered to prisoners in structured intervention units. In fact, we recommend extending these further to cover any inmate held in restrictive conditions for 22 to 24 hours per day and who doesn’t receive at least two hours of meaningful social interaction.

Given the severe consequences of segregation, we also support greater judicial oversight. Independent external decision makers have made some difference, but there are still very serious issues with extended segregation placements and disparities in who is being segregated. Judicial oversight is absolutely vital to correct wrongful placements in segregation, but even just the availability of judicial oversight plays an important role in promoting better decision making and the rule of law.

We also support Bill S-230’s efforts to create more appropriate alternatives for people with mental health conditions, but we do recommend expanding the section to include community-based mental health services. Moreover, we support expanding correctional services for prisoners who are from disadvantaged or minority populations. These are our populations that are overrepresented in prison, who too often experience very serious barriers in the current system and have distinct needs that our system is not well suited to address.

Finally, the CLA strongly supports section 11, which finally implements Justice Arbour’s recommendation of allowing sentence reductions for unfairness in the administration of a sentence. To protect rights, there has to be a meaningful remedy. In the criminal law context, we generally have such remedies, evidence gathered in a search that violates section 8 of the Charter can be excluded under section 24(2). Stays can be granted to address certain rights violations. These are certainly drastic remedies, but our highest court has held that such remedies are absolutely essential to follow through on our commitment to upholding the Charter. For rights abuses in pretrial detention, courts have relatively effective remedies, sentence reductions and even stays, but once convicted, prisoners generally don’t have access to effective remedies. Habeas corpus is not a panacea. The court has essentially turned it into a framework to get faster judicial review of decisions that impact prisoners residual liberty interests.

To be clear, this is a narrowly defined category — for example, segregation placements and transfers to higher security — and the remedy is ordering prisoners released from an unlawful form of detention. You can’t challenge any and all issues this way. The framework has its flaws, and even when a prisoner is challenging a deprivation of liberty, it can often take so long to get there that the issue is moot and there’s not a lot the courts can do to correct the wrong.

For issues that don’t fall under a deprivation of liberty, the other option is a Charter application, but not all issues rise to a Charter breach, or a judicial review, which is slow and offers some limited remedies. Generally speaking, if the issue isn’t ongoing at the time of the hearing, there aren’t many effective remedies that are available. Maybe a declaration can be made but those aren’t sufficient to address the serious and grievous wrongs that are committed against prisoners often. Sentence reductions are absolutely essential to finally vindicate prisoners’ rights and ensure that officials take prisoners’ rights seriously.

To the extent that any coordinating amendments need to be done to allow this remedy, these should be done. It certainly may take time and effort, but upholding the rights of prisoners necessitates having access to effective remedies.

Thank you. I look forward to your questions.

Thank you, Ms. Mitchell.

We will now have senators engage in questions. Senator Pate, you’re the sponsor of the bill, and I’m going to invite you to go last and mop up if needed. You know how we are at this committee.

Thanks to all of you for being here. My first question is for Ms. Kish from the Canadian Elizabeth Fry Societies. What I would like to get at is, what is your impression is the suitability of the 48-hour limit in the context of extended stays.

Considering that data indicates that between November 2019 and November 2021, about a quarter of the inmates in structured intervention units, or SIUs, were detained for over two months, and 20% stayed in the structured intervention unit for between one and five days, I’m wondering if you think the 48-hour limit set by Bill S-230 for a stay in and is realistic and sufficient to meet the needs of inmates and the management requirements for those SIUs.

Thank you for your excellent question. I do think it’s an important first step. Certainly, right now, restrictive conditions and segregation in all its forms are primarily used as a population management strategy. They’re not resolving the problems they intend to, so yes, I do think it is reasonable. I think that it will push the system to innovate and find different and more meaningful responses, especially, if this bill is to pass, in its capacity for people with identified mental health conditions to be moved out of such systems and into health care systems.

Ms. Latimer, if you have a short answer to add to that.

I think you need to have a continuing judicial review of people being placed in solitary confinement. I think 48 hours is very good for, first of all, testing the grounds on which people were placed in solitary confinement and whether they’re a legitimate vehicle to be used.

Our review is that placement in solitary confinement should never exceed 15 days, but working a lot with males who can be violent, we’re not of the view that we can abolish solitary confinement or administrative segregation, because there are circumstances in which prisoners will hurt each other unless they’re separated from each other. Sometimes that takes more than 48 hours to resolve, but it shouldn’t take more than 15 days.