Bill C-83 (Historical)

An Act to amend the Corrections and Conditional Release Act and another Act

This enactment amends the Corrections and Conditional Release Act to, among other things,
(a) eliminate the use of administrative segregation and disciplinary segregation;
(b) authorize the Commissioner to designate a penitentiary or an area in a penitentiary as a structured intervention unit for the confinement of inmates who cannot be maintained in the mainstream inmate population for security or other reasons;
(c) provide less invasive alternatives to physical body cavity searches;
(d) affirm that the Correctional Service of Canada has the obligation to support the autonomy and clinical independence of registered health care professionals;
(e) provide that the Correctional Service of Canada has the obligation to provide inmates with access to patient advocacy services;
(f) provide that the Correctional Service of Canada has an obligation to consider systemic and background factors unique to Indigenous offenders in all decision-making; and
(g) improve victims’ access to audio recordings of parole hearings.
This enactment also amends the English version of a provision of the Criminal Records Act.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

With that, what would you recommend to be the change?

If we're saying that the phraseology or the description that was used needs to changed in Bill C-83, what would you recommend that it should be?

[Stanley Stapleton, National President, Union of Safety and Justice Employees]

Thank you.

I certainly agree with my colleague before me that oversight is critical with anything that happens within corrections because, sometimes, that is certainly missing.

I bring to the table my years of experience. I have over 30 years in corrections. I started off as a correctional officer at the medium-security Drumheller Institution in 1980. In 1983, I moved to the maximum-security Edmonton Institution. I was a correctional officer for 22 years there, and now I'm a program officer. That's still my substantive position.

As the president of the Union of Safety and Justice Employees, I represent thousands of employees who go to work every day in corrections to prepare offenders for their safe return to society.

Today we're talking about Bill C-83, measures to make Canada's federal prisons more humane and improve offenders' chances of rehabilitation. USJE believes Bill C-83 is a first step in this direction. However, from my experience, I can say that new resources are needed to ensure its successes. Today, front-line workers burdened with heavy caseloads are at a breaking point. Something has to give.

Since implementation of the reforms proposed by the new bill will fall on front-line workers, this is what USJE recommends. From what we understand, there is approximately $484 million earmarked to support these changes. From USJE's perspective, some of these funds must be used to recalibrate ratios of parole officers and program officers to offenders.

Currently for parole officers, ratios are 30:1 at a max, 28:1 at a medium, and 25:1 at a minimum, but there's no back filling if a parole officer goes on a long-term sick leave or when they take vacation leave. There's no back filling. This means that, when the parole officers are not there, the offenders have significantly less support.

USJE believes that the ratio should be 20:1 for parole officers, and we also believe that back filling must be reinstated. For program officers working in the SIUs, the ratio can be no more than 3:1. At times, due to the complexity of the offenders, the ratio needs to be 1:1.

The changes Bill C-83 proposes for more meaningful interaction with offenders are positive, and that's important, because in all my years working in federal prisons, I've always felt that you need to treat people like people.

I spent an accumulation of approximately four years working in segregation units, and I can tell you that in all those years I never saw one offender who went in to segregation come out of segregation a better person.

The one thing I can tell you is that, when I'm on the street and I have offenders approach me—and they do approach me—or when I'm working bingo for my daughters to raise money for sports, they talk to me there. The one thing I've heard over and over again is, “Thank you, boss. Thank you for treating me like a person when I was inside. That helped me, on the outside, to understand.”

Those interactions definitely need to take place, and they need to take place inside the prison. Preparing offenders for their safe return to society requires real interaction, and that means programs, counselling sessions, mental health care and more face time with individuals. Providing this interaction is necessary to even the most challenging offenders.

Bill C-83 addresses some of these issues, but as it moves forward, the system needs to be better resourced to undertake these changes. Funding matters. Having been so long in the service, we've been through several deficit reduction action plans with the latest, of course, by the previous government. Previously, the action plans have not had a huge impact on the front line. Most of the effects were at middle management and upper management; however, the last time, the effects of cutting resources at the front line really had a significant impact.

As I said earlier, the members that I represent, particularly programs and parole officers, are really feeling the stress. USJE believes that new legislation is a good step in the right direction if resources are identified and put in place to improve offenders' chances for rehabilitation, to help keep Canadian communities safe and to ensure the safety of all employees working inside federal institutions.

Thank you.

[Josh Paterson, Executive Director, British Columbia Civil Liberties Association]

Good afternoon and thank you for inviting me to testify today in unceded Algonquian territory.

I'm from the B.C. Civil Liberties Association, which along with the John Howard Society, are the organizations responsible for the B.C. court decision that I know most of you probably read around the table. I'm not going to belabour the legal conclusions there. I'm going to take it as given that you understand what the court ultimately decided. I want to talk about a particular aspect of it today.

The minister has urged this committee to note that Bill C-83 represents an entirely different regime and, therefore, that the findings of the courts in B.C. and in Ontario really aren't that applicable.

As you've heard from other witnesses, including the correctional investigator and in our view, the harms of the existing regime remain possible under this new bill because nothing that this bill promises is guaranteed in relation to segregation. I would suggest to you, with respect, that the government's argument, which is that we're in an entirely new world and, therefore, the rulings have no or little relevance is misplaced.

While I don't have time to get into all of the bill's significant shortcomings today in that regard, I will point you again to the submissions of John Howard, the CCLA and the correctional investigator, with whom we largely agree. I want to focus my time today on the issue of oversight.

Without taking you through all of the facts, the B.C. ruling found, as a fact, that there has been a long history of a culture of non-compliance with law and rules in the prisons, specifically as it relates to segregation, to solitary confinement and to isolation. Also, there has been a similarly long history of resistance to the idea of external oversight of segregation placements. The court drew a clear connection between those two trends and I hope that the connection will also be evident to this committee.

The B.C. court spends pages and pages on this, starting with the government's own Vantour report in the 1970s, which concluded that the penitentiary service—as it was then known—had failed to comply with existing laws, regulations and policy. Justice Leask goes on to the MacGuigan report, which the court found “was a damning indictment of the absence of the rule of law in the penitentiary system.” It was actually after that report that the government put in place the independent chairpersons for disciplinary segregation and for disciplinary hearings.

He arrives at the Arbour report on what happened at the prison for women, which found that there were not individual instances of failure to respect the law, but rather a culture that failed to respect the law. Of course, she recommended hard caps for segregation and judicial, or at least independent adjudicator, supervision.

Following Arbour, there were at least six other internal CSC reports, House of Commons reports, correctional investigator reports and the Ashley Smith inquest. Each of them made recommendations that pointed to the need for independent adjudication of segregation decisions. Every time, the government has decided to ignore those recommendations.

Here we sit again. We have a court decision, in which the conclusion, based on the evidence and findings of fact, is conceded as true by the government and the finding is that internal oversight won't do. That ruling sits atop a heap of expert recommendations, stretching back decades, and the undisputed findings of fact that there is systemic widespread failure in the prisons and a culture of non-compliance. In our view, Parliament should pass no bill without ensuring that this long-standing issue is resolved.

Just last week, at the Court of Appeal in British Columbia, Canada tried to argue again that what had happened was just a bunch of individual bad decisions, like misapplying the law, poor exercises of discretion and so on. The judges of the court of appeal actually interrupted and stopped the lawyer for Canada. The lead judge said words to this effect, “Canada, you're not challenging the findings of the trial judge. The trial judge found that there were systemic problems and that these problems were widespread and systemic in nature, not a series of individual issues. Why are we arguing about individual issues?”

This is really critical. The Government of Canada doesn't challenge those findings. In fact, it conceded that there has been serious systemic and persistent mistreatment and that there were breaches of rights.

When you're considering what to do about this bill, and indeed what to do perhaps about oversight, I think it's really important for the members to sit within that context, not the context of hope and aspiration that CSC has shown itself capable of administering these things properly. In fact, that isn't the finding. The Government of Canada has agreed with those findings by not challenging them.

That brings me to the issue of independent external oversight. To be clear, we don't support this bill in its present form. A particularly egregious shortcoming is that it continues the decades-long record of rejecting external oversight in favour of an internal system. We ask that Parliament not repeat that mistake.

It's been raised in this committee that the Ontario court said the review could be internal. In questions, I'd be happy to get into the differences between the two judgments and why there's that discrepancy.

Here's what the judge in B.C. had to conclude:

...I believe that the evidence led before me...demonstrates that CSC has shown an inability to fairly review administrative segregation decisions. I therefore conclude that procedural fairness in the context of administrative segregation requires that...reviewing a segregation decision be independent of CSC.

By systematically failing to treat prisoners fairly, whether through a lack of resources or whatever other reason—I'm not saying it's malfeasance—CSC has not only breached the Constitution, but it's avoided the will of Parliament.

Is that the one-minute signal, sir?

[The Chair, Liberal, John McKay]

Thank you.

Before I suspend, I want to thank Senator Pate, Ms. Mendelsohn Aviv—I hope you make your flight—and Ms. Zwibel. Thank you for your contribution to the study of Bill C-83.

We'll suspend for a minute or two while we clear the room for an in camera discussion.

[Proceedings continue in camera]

[Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties Association]

I'll be going first. Cara will come in a little bit later.

Good afternoon, Mr. Chair and members.

When we raise concerns about solitary confinement, this is not an abstract discussion. We are expressing concern about the harms caused to human beings by the practice of extreme isolation.

These harms are well established by experts and were recognized by courts. Associate Chief Justice Marrocco found that the effect of isolation and prolonged isolation include—I won't even give you the whole list—hopelessness, depression, confusion, hallucinations and delusions, re-traumatizing of women and eroding of their self-worth, rage, loss of control, self-mutilation, declines in mental functioning, a sense of impending emotional breakdown and a vicious cycle in which a prisoner's extreme behaviour and acting-out leads to an increase in physical altercations with prison staff—frustrating them both, and of course leading to further isolation.

Fifteen consecutive days of isolation poses a serious risk, the court found, of permanent, observable, negative mental health effects. It's because of these harms to people that courts in B.C. and Ontario found the current administrative segregation regime to be unconstitutional and have ordered change. In order for Canada to uphold the law—as it is its duty to do—and obey the court orders, a new law must prohibit indefinite or prolonged solitary confinement, however it's called, and it should not exceed 15 days. It should prohibit placing people with mental illness and/or disabilities in solitary, and it should ensure the use of solitary doesn't discriminate against indigenous persons, as it currently does.

Bill C-83 does not include these protections.

Both Ontario and B.C. courts noted the absence of independent oversight and independent review. This is critically necessary, because a strong, external independent review process could help build public trust and ensure that prisons are obeying the law, that inmates are not being placed in isolation unless in absolutely necessary and exceptional circumstances, that no one is held in prolonged solitary, that indigenous individuals receive sensitive and culturally appropriate programming, and that a person who is mentally decompensating receives treatment rather than being left alone to deteriorate.

Any new law should also prohibit solitary for people under the age of 21 and people in need of protection. There is no justification to impose this status, whatever it's called, on young and vulnerable inmates.

The costs of isolation are not just to the individual but to correctional staff who have to manage individuals who are losing their grip on reality or their ability to control their reactions. It has a cost to our society, because people complete their sentences and are going to be reintegrated. The rehabilitation of inmates so that they are able to reintegrate requires an investment of resources in our correctional system. We need clear legislative protections, and this investment of resources is critical to making our society in Canada safer. As complex as it may appear, there are significant tools available for reform—real, implemented, effective alternatives as well as countless recommendations, models, reports and legislative blueprints. My colleague Cara will speak to some of them in a moment.

Justice Arbour's report is over 20 years old. The Ashley Smith jury inquest, with its 104 recommendations, is five years old. Two commissioned expert reports on segregation and corrections from Ontario are extremely recent.

I'll take a minute to talk about the U.K. prison system, which is up and running. They have all but eliminated solitary. Individuals there needing protection or supervision are placed in smaller units appropriate to their needs, to their population, and only the most exceptional of cases are kept in the special closed-supervision units. Of a prison population of roughly 85,000, approximately 60 men and zero women are held in this special unit.

As Senator Pate was saying, if we want to deal with extreme isolation of inmates, changing the sign will not create the change or provide sufficient relief to people held alone in tiny cells with mesh on the windows and a tiny concrete yard. What defines the experience of solitary is extreme isolation, which causes the harms discussed above. This bill, or this act, needs to be amended to say that any protections provided must be for anybody held in those circumstances of isolation. “Solitary” needs to be defined in the law.

Of course, any relief for people in those circumstances is better than no relief, including time out of cell, including human contact, but I note that there are enormous exceptions under proposed section 37, each of which is subject to possible overuse or misuse, and documentation and oversight are critically necessary to ensure that does not happen.

In addition, the broad language of proposed paragraph 37(1)(c) could exclude a huge number of people who would therefore be held in extreme isolation without four hours out of cell or two hours of human contact.

In any event, isolation is still practised and it would still be the order of the day. If some people believe that administrative segregation is necessary as a measure of last resort to be used in exceptional circumstances—say in the event of a riot—this bill is doing the very opposite. It is institutionalizing and attempting to justify isolation as an ordinary prison practice. Canada can do better.

It is a far cry from the kind of prison reform that we need and that we deserve for our safety and for our well-being. We need it as well because not only will it reduce harms, financial and mental, to inmates and to correctional staff, but it will be better for our society as well.

I'll add one more word before I turn it over to Cara.

For meaningful reform, which Canada needs, there has to be a meaningful process. None of the organizations that challenged this law successfully in court were invited to consult on the bill before it was introduced. I note with strong objection the absence of key indigenous rights groups from these committee hearings, including Aboriginal Legal Services and the Native Women's Association of Canada—both of whom asked to appear—despite the fact that indigenous individuals are overrepresented in solitary and that this bill has a section dedicated to indigenous offenders.

People's mental health is at stake. People's lives are at stake. This is no time for a slapdash attempt at a band-aid solution. I echo Senator Pate's proposal that there be a repeal of the bill and a proper effort at reform. Canada has had plenty of time and needs to do this properly.

I turn it over now to my colleague Cara to share some remarks on recent work in Ontario and possible alternatives.

[Kim Pate, Senator, Ontario, ISG]

Thank you very much, Mr. Chair, and thank you to all of the committee for inviting me to appear.

As someone who lives and has worked in this unceded Algonquin territory for now approximately 27 years, I want to say that the impact of colonization on our indigenous peoples is particularly acute when you have the privilege and responsibility, as I have for almost four decades now, of walking in to—but, most importantly, being able to walk out of—prisons for youth, prisons for men and, for 25 years before my appointment, prisons for women.

All that is to say that when the minister introduced Bill C-83, it was described as ending the practice of segregation by the Correctional Service of Canada and as the government's response to the recommendations of the jury regarding the homicide death of Ashley Smith. If in fact it were either or both of those, I would certainly be one of the most vocal supporters of the bill.

In fact, as we know, October 19 of this year marked the eleventh anniversary of the preventable death of Ashley Smith in the segregation unit at Grand Valley Institution for Women. Since that time, we have seen the implementation of very few of the recommendations put forth by the coroner's jury.

One of the things that is outlined in the bill and is certainly foreshadowed as though it were in response to the jury recommendations is the potential use of mental health advocates. In fact, what was being recommended by the jury were peer advocates and peer supports as well as mental health advocates, who are currently in place in the various prisons for women. The jury also recommended advocates to be available in some of the federal penitentiaries, particularly the regional psychiatric centre, which is dually designated as a psychiatric hospital and a federal penitentiary, but these have not in fact been used.

I'd be happy to talk more about why they have not been used. In part it's because of the process by which corrections implements the mental health legislation, invoking the mental health legislation for the purposes of forcible treatment when they wish to do so and then abandoning it before all the protective mechanisms, which include mental health advocates, kick in.

Therefore, the practice and procedure of the Correctional Service of Canada in this regard to date does not hold out great hope that a new process would be put in place just because of this bill, particularly in light of the fact that the bill also removes a number of the other procedural safeguards that currently exist for segregation.

I want to draw particular attention to the fact that prior to the bill being introduced and since the bill was introduced, going into federal penitentiaries both in my capacity as teaching a prison law course at Dalhousie University and in my capacity as a member of the human rights committee of the Senate, it is clear to me that what is likely to happen as a result of this bill, if it is passed as is, has already started to happen within the federal penitentiaries.

Certainly, we've seen this trend in the prisons for women for some time. All of the women who are classified as maximum security prisoners have been living in a state of segregation, because segregation is both a place called segregation and a status of separation. All federally sentenced women who are classified as maximum security have been living in these kinds of units since they were developed in the regional prisons across the country.

As I visited the last couple of penitentiaries when this bill was introduced, I was advising students on the sections that we were in. At one point, for instance, we entered the Nova Institution for Women, and I advised the students that we were in the segregation area. I was quickly corrected that it was no longer the segregation area; it was pod C of the intensive intervention unit. It was a very clear and very graphic example of how nothing has changed—merely the change of the name of the unit in that context.

In the men's prisons we saw the same thing, and similarly—unbeknownst to me before I started on the human rights committee review, because it had been some time since I was going regularly into the prisons for men—all the men's maximum security units and prisons are also now a series of segregated units.

That brings me to a point that has been raised in some previous testimony, which is that the majority of those in segregation are there voluntarily.

Some of you know that in fact there are very few members of Parliament, senators or judges who enter the penitentiary, despite their right of access according to section 72 of the Corrections and Conditional Release Act. Well, for all of us who have entered and who have asked prisoners this precise question, for almost all of them, if they say that they are there “voluntarily”—and I would put that in quotation marks on purpose—it is because they are looking for a time out, for protection, or to be separated from the general population for some other reason. It is usually generated by the pre-existing conditions of confinement.

When we ask them if they would like to be in any other type of conditions, whether that would be in the private family visiting unit if they're looking for time to themselves or to have access to programs and services so as to have some time away from the very small, contained segregated units, in every instance prisoners have indicated that they would prefer that. Equally important is that when we've talked to staff, they have talked about the fact that increasingly people are segregated, and that is raising tensions in prisons and raising concerns.

The other piece I'm working on separately from the work of the human rights committee is in starting to go in and meet with the groups of men who have been gang-involved and who are the other rationale that is often given for segregating. There is a very good program in the Stony Mountain Institution. There is also a very good intervention being run by a man named Richard Sauvé, who is himself serving a life sentence. A number of senators and others are going into the prison in the coming weeks to actually meet with him and talk about the work they're doing to de-escalate situations and assist people, and in particular both African-Canadian and indigenous men who want to drop their colours so that they can actually start to desegregate, if you will, within the prison population.

There are a number of initiatives that have not actually been adequately canvassed, in my view, and it remains my view that in fact we could be looking at truly doing what this bill says it wishes to do. I for one would be happy to work with any and all of you on the committee, as well as with others, to ensure that the bill actually does that. My suggestion, actually, is that this be repealed and that we start from a new perspective and really try to do what is a very laudable intention brought forth by the Minister of Public Safety.

Finally, I would say a word about what you've already heard from Dr. Zinger, the correctional investigator, on the lack of accountability.

The very few procedural safeguards that exist now for administrative segregation will essentially be thrown out the window and the monitoring of it will largely rest on the Correctional Service of Canada. I would suggest respectfully that there is a very important role for this committee and possibly for the human rights committee or the legal committee of the Senate to jointly look at implementing a recommendation that this committee made around oversight. I would recommend that annual reviews, not just reviews every five years, be conducted in accordance with the recommendation you made earlier with respect to the review of prisons.

Thank you. I look forward to your questions.

[Jim Eglinski, Yellowhead, CPC]

You suggested in your report that the CSC no longer has credibility to investigate itself, yet we are asked to look at this Bill C-83 and pass it. Once we pass it, the minister and CSC will tell us how it works. Then they'll tell us how much it costs, because they say they don't really know today.

That leaves a big question mark, so my question to you is, would you recommend passing this legislation as it is?

[Dr. Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator of Canada]

Good afternoon.

Thank you for the invitation to appear before your committee. It is a pleasure to be here.

I present to you Marie-France Kingsley, executive director of the office. She worked for many years as director of investigations and has a lot of expertise in operations.

As correctional investigator, I welcome the intent of Bill C-83, which proposes to eliminate the use of solitary confinement as defined by the United Nations in the newly revised Nelson Mandela rules—that is, less than 22 hours in cell. I am concerned, however, that this bill as it stands may not lead to the intended and laudable outcome and may even result in an increase in the use of restrictive confinement. lndeed, the structured intervention units, or SIUs, which would replace administrative and disciplinary segregation as we know it may simply become “segregation lite”.

I am specifically concerned that the bill fails to provide for independent or external oversight of SIU placements and eschews the need for procedural safeguards of any kind. Eliminating solitary confinement is one thing, but replacing it with a regime that imposes restrictions on retained rights and liberties with little regard for due process and administrative principles is inconsistent with the Corrections and Conditional Release Act as well as the charter.

Whenever rights and liberties are deprived, there is a corresponding obligation to provide safeguards proportionate to the degree of the deprivation. SIUs are, by design and intent, restrictive confinement environments, even if they allow for more out-of-cell time than current administrative segregation. The simple fact of the matter is that an inmate housed in an SIU would have not the same rights as other inmates or be able to exercise those rights, due to what the bill itself concedes are “limitations specific to the structured intervention unit or security requirements”. ln effect, Bill C-83 proposes a softer version of segregation without any of the constitutional protections. The bill is uniformly short on specifics and places too much discretion and trust in correctional authorities to replace segregation with an unproven and not well-conceived correctional model.

Before I go further into these concerns, I would like to first acknowledge some progressive and positive aspects of the proposed legislation.

I am pleased to see that Bill C-83 would entrench in legislation the clinical independence and autonomy of prison health care professionals. This measure would effectively mean that clinical decisions could not be overruled or ignored by non-medical prison staff.

The bill also proposes to enshrine access to patient advocacy services in federal corrections. Such a measure would help ensure inmate patients understand the implications of their health care decisions and fully exercise their right to free and informed consent. These measures are consistent with evolving international standards in the care and treatment of people in custody, including the revised Mandela rules, and are responsive to addressing outstanding recommendations from the coroner's inquest into the preventable death of Ashley Smith.

I am also pleased that the bill would obligate the service to consider systemic and background factors that contribute to the overrepresentation of indigenous persons in the criminal justice system. This provision reaffirms and codifies the Supreme Court of Canada decision in Gladue, which already requires CSC decision-makers to take into consideration the unique circumstances of indigenous offenders whenever their rights and liberties are at stake.

Returning to the bill's intent, it is instructive to note that the grounds for SIU placement would remain virtually identical to current segregation law. ln other words, an inmate could be placed in an SIU if the warden believes, on reasonable grounds, that he or she jeopardizes their own safety or that of any other person, or the security of the institution.

It's important to note that these are the two most-used grounds for placement in administrative segregation. Today, there are 380 segregated inmates in CSC facilities. Just under half of the segregated population is held there voluntarily, meaning they seek out or request to be placed in segregation out of fear for their own safety and well-being.

The proposed legislation has nothing to say about how an SIU, program or intervention would deal with a population that voluntarily requests segregation, a situation which effectively represents a failure of the Correctional Service of Canada to provide safe, secure and humane custody for inmates regardless of one's crimes or vulnerability. It is also not clear how the proposed legislation would deal with the disproportionate number of indigenous people, who currently make up 43% of the segregation population.

It's been said that SIUs are different from solitary confinement because inmates would have four hours out of cell each day, which is twice as much as current segregation practice allows. While four hours minimum out-of-cell time is an improvement, 20 hours maximum inside a cell is still a lot of time to be locked up.

I commend the effort to comply with the Mandela rules in this regard; however, it's important to be reminded that these are minimum standards for the preservation of human dignity and sanity behind bars. Surely Canada is not resigned to simply meeting minimum standards. As a recognized world leader, we have to get this legislation right, and for the right reason.

Simply increasing the out-of-cell hours that inmates could avail themselves of does not mean that Canada will have eliminated all the harm associated with restrictive confinement. Any potential gain in time out of cell is potentially compromised by a requirement that allows CSC to conduct a routine strip search without individualized suspicion whenever an inmate is entering or leaving the SIU. In effect, this means that an inmate residing in an SIU could be strip-searched multiple times in a day, which could prove a major disincentive to participating in out-of-cell activities.

The bill intends to provide inmates placed in SIUs with meaningful human contact. That is the same wording and intent behind the revised Mandela rules for reforming the solitary confinement regime worldwide. Forgive my skepticism, but it is not clear how the objectives will be met by this particular piece of legislation. Since we can only assume that SIU environments will be physically similar to existing segregation units—because we have not been provided with information that would suggest otherwise—we have to ask whether these environments will be conducive to meeting the test of meaningful human contact, much less the effective delivery of programs and services.

We know that current segregation units are not conducive to group learning. Indeed, segregation interventions, insofar as they can be called that, are typically delivered in-cell, behind a door, through a food slot or in small common spaces located in or near segregation ranges. Needless to say, these spaces are hardly conducive to effective delivery of therapeutic interventions.

It is important to note that the bill proposes to eliminate both administrative and disciplinary segregation. I have previously pointed out that disciplinary segregation is rarely used in federal corrections, largely because it is considered too much of an administrative burden. Because of the liberties at stake, disciplinary segregation provides for significant procedural safeguards, including sharing information with offenders, providing access to legal representation, holding a hearing before an external independent chairperson and meeting the high burden of proof.

Over time, administrative segregation became the default option, used to circumvent the due process requirement of a formal disciplinary system. Administrative segregation placements are simply easier, quicker and more responsive in serving the same population management ends: removing an individual who poses a risk to oneself or others or who jeopardizes the security of an institution.

Let me just conclude.

In terms of how I see this bill moving forward, I would say that at the very least, adequate procedural safeguards and some kind of independent monitoring and oversight of SIU placement need to be incorporated. Otherwise, the commendable intention of this bill cannot be met.

I will be happy to answer any of your questions, and I would ask if the chair could enter the complete text of these remarks into the record, if that's possible.

[Jason Godin]

I should hope we would be. It's our understanding, based on the decisions, that there is an urgency to push the bill through. Again, we're going to be the first to tell you that we need to slow things down a little bit. If there is a plan B, we would really like to know about it, but often what happens with us is that we get cabinet confidentiality thrown at us. I understand the rules of Parliament, but at the same time, they have to engage us at some point. At the very least, I have to give the commissioner a little bit of credit that she did have a pre-discussion with us before Bill C-83, not to the level of detail we would like but nonetheless there was a conversation.

But if there is a plan B, our expectation is that our deputy head, being the commissioner, would sit down with us prior to plan B being unveiled. We should have some input into what plan B would look like.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

It's about safety. It's about making sure that we have a safe work environment, and that's exactly what Bill C-83 says it's going to do, improve safety.

I'm just curious to know their thoughts on whether that program will improve safety.

[Jason Godin]

Unfortunately, due to cabinet confidentiality, as our commissioner often tells us, we weren't really consulted. The bill was as much a surprise to us as it was to anybody. I don't see the bill before it comes onto the table, so we weren't officially consulted on Bill C-83.

[Jason Godin]

It does, yes. If you're asking about the health care services, yes, of course, when we're delivering health care services to inmates, for the safety of the health care professional, the inmates and other staff, we're usually accompanying the health care professionals.

If we're going to expand on that with Bill C-83, you can imagine what kinds of resources that will take. Normally when we're managing health care, with the health care professional there are usually two correctional officers. You could also be dealing with inmates who are extremely volatile or extremely violent, or they could be self-harming. That sucks up a lot of resources.

Yes, currently we do have that model, but to maintain that in this current bill is going to be extremely costly.

[Dr. Allen Benson, Chief Executive Officer, Native Counselling Services of Alberta]

I will. Thank you.

First, I'd like to acknowledge that I am on the unceded territory of the Algonquin people.

It's an honour to be here to speak to this bill. I am the CEO of Native Counselling Services of Alberta. I have been involved in this business since being a parole officer, originally, 40 years ago, so I'm speaking with many years of experience, both in Canada and overseas. We operate two section 81 healing lodges in Edmonton, one for men and one for women, which is the only female section 81 healing lodge.

I'm going to stay focused mainly around the indigenous part of Bill C-83. My focus is going to be around the accountability of the healing lodges. I'm going to speak to a couple of key things around the work we do.

First, I'd like to talk about the language used in the bill itself and address some of the changes in proposed sections 79.1 and 84.1, where the language proposed in the first section is to be “Indigenous governing body” meaning “a council, government or other entity”.

We're proposing that it be changed to “Indigenous governing body” meaning a council, government or “indigenous organization” that is authorized to act on behalf of an indigenous group, community or people that holds a right recognized under section 35 of the Constitution.

It's expanding that language a bit. There's a reason for that. I heard from my colleague from Elizabeth Fry about their concern for it. Our concern comes from a conversation with the Alberta chiefs and some of our leaders in the community about ensuring that it is an indigenous organization that is in fact delivering these services.

Later in proposed section 81.1, indigenous organizations are mentioned. However, we also propose that the government clearly define what an indigenous organization is—that is, that an “indigenous organization” is one that has a majority of its board of directors as first nations, Métis or Inuit; demonstrates expertise and program delivery that are grounded in an indigenous world view; and over two-thirds of the staff, in healing lodges in particular, of the agency identify as indigenous.

Proposed section 80 states:

Without limiting the generality of section 76, the Service shall provide programs designed particularly to address the needs of Indigenous offenders.

We highly recommend that either in law or in policy the Correctional Service of Canada be directed to offer programs for indigenous offenders that are both culturally relevant and grounded in indigenous evidence-based research.

Further on section 81, for the proposed changes, we recommend that a proposed subsection 81(4) be added so that the minister may delegate full authority through section 81 agreements so that the director of the section 81 may carry out his or her full responsibility of the care and custody and supervision of offenders in a healing lodge. I'm speaking specifically about that because we have just renewed our agreement, and there's nothing in legislation that allows for the minister to delegate that authority. We've included it in our agreement, but it's not in law. We'd certainly like to see it in law.

In addition, proposed subsection 83(1) currently states:

For greater certainty, Indigenous spirituality and Indigenous spiritual leaders and elders have the same status as other religions and other religious leaders.

We recommend that the following be added: “Elders should be utilized in all interventions regarding Indigenous offenders, including but not limited to mental health, behavioural issues and discipline”.

We currently utilize the elders' services in all of those areas in our healing lodge. It's very effective. It's a very effective means of accountability and it's an intervention status. A number of years ago, I was involved in an institutional riot where we brought elders in to help settle down the matter. It was very effective. It doesn't work in all cases, but it certainly should be considered as a key option.

Finally, in regard to sections 86 and 87, the proposed changes are that:

health care means medical care, dental care and mental health care, provided by registered health care professionals or by persons acting under the supervision of registered health care professionals;

While this is costly, we don't agree with this proposal. We suggest that the health care providers be on site. Further, this means to stipulate that the health care professional is on site at all times. Health care is an ongoing concern for all offenders. This change could make the situation a lot worse.

Again, I'm not going to speak to the specific issues, but I'd like to address in general the structured intervention unit. In answer to your earlier question, I'd like to believe the intent of this bill is honourable and that it can be effective.

I am aware of the violence. I am familiar with the level of violence in the institutions and the importance of the safety and security of other offenders and staff. I am also aware that elders have been at risk at times, because of the violence. We are in support of that type of separation of offenders.

However, if the question is whether we are sure these policies are actually honoured and being implemented, let's guarantee that. One of the ways to guarantee it is to ask for all medium- and maximum-security institutions to have an on-site ombudsman who reports to the correctional investigator. If that's the public's concern or the concern of my colleagues, then one of our guarantees would be to ask for that on-site ombudsman to be in place to review these cases. That would help us eliminate the kinds of concerns that some of us and some of my colleagues have.

I want to thank you. I am prepared to answer any questions.

[Jason Godin]

I'll see what I can do.

Our recommendations are as follows: a more robust reassessment of policy changes influenced by Bill C-83; the implementation of a more robust incident tracking system to better understand the operational impacts of these changes; the reversion of language that now recommends response options to be “least restrictive” to what was previously “most appropriate”; a commitment to supplementing existing infrastructure within federal penitentiaries to address the impacts of the elimination of administrative and disciplinary segregation; and a review and augmentation of the disciplinary system, which must occur prior to the elimination of disciplinary segregation to effectively respond to the most difficult behavioural inmate cases.

We also recommend a commitment to the availability of health care professionals 24 hours a day within all CSC institutions; the expansion of alternative response options, such as chemical restraints similar to those used within provincial psychiatric hospitals; the supplementation of existing training and the implementation of new training to provide correctional officers with additional tools to allow them to safely respond to the diverse needs of inmate populations; increased inclusion for UCCO-SACC-CSN in future discussions—

I thought you said 47 seconds, sir, but that's okay.

Anyway, you have my brief.

[Jason Godin]

Thank you, Chair.

The Union of Canadian Correctional Officers represents over 7,300 members working in federal institutions across Canada. As law enforcement professionals, we represent a critical component of the Correctional Service of Canada, enabling the service to achieve its public safety mandate 24 hours a day, 365 days a year.

Recently, much consideration has been given to the role segregation plays within Canada's correctional system, both provincially and federally. It has been thoroughly studied and its effects analyzed and debated, both by academics and by critics of justice systems globally.

With the recent introduction of Bill C-83, CSC will be forced to significantly change the manner in which it manages its offender populations. The passage of Bill C-83 will result in changes to operational policies that will markedly affect the operations of our federal penitentiaries, impacting staff and inmates alike.

Accordingly, UCCO-SACC-CSN, whose members represent a significant partner in the discharge of effective corrections, seeks to participate in the discussions about these changes. That being the case, the goal of this report is to provide perspective on the potential impact of these changes from a correctional officer's perspective.

Should Bill C-83 be successful, CSC will be forced to implement policy that will drastically alter the manner in which the most difficult segments of its population are managed. As we have seen through recent CSC policy changes to segregation in CD 709, by eliminating segregation and replacing it with structured intervention units, CSC will further struggle to achieve its mandate of exercising safe, secure and humane control over its inmate populations. We are concerned about policy revisions that appear to be reducing the ability to isolate an inmate, either for their safety or for that of staff as noted in proposed section 37.3.

This is not to suggest that Bill C-83 is not without merits. Tools such as body scanners provided for in Bill C-83 will enhance correctional officers' abilities to reduce the various types of contraband that threaten the safety of those working and living in federal institutions. However, in order to implement the bill in its entirety, there will be a much greater commitment required from the federal government to ensure its success.

While Bill C-83 seeks to amend several key components of the CSC framework, perhaps the most significant in relation to security operations is the elimination of segregation units within federal institutions. While UCCO-SACC-CSN recognizes that effective corrections require the ability to adapt, our members are also tasked with ensuring the safety and security of all offenders and staff in the institutions.

Eliminating disciplinary and administrative segregation will significantly impact the ability to maintain control over diverse populations. We accept that an overreliance on segregation as a disciplinary consequence may lead to negative outcomes. However, there are incidents in which swift and immediate responses to dangerous behaviour are necessary options.

In 2007, we witnessed the unintended impact of changes to correctional policy, namely CD 709, “Administrative Segregation”, and CD 843, “Interventions to Preserve Life and Prevent Serious Bodily Harm”. These policies significantly reduce CSC's ability to manage its institutions through the use of segregation. Although well-intended, these quickly led to a sharp increase in violence within federal penitentiaries.

Early data released through the Office of the Correctional Investigator on the impact of these amendments provide some indication of the operational outcomes of these changes. An analysis of the numbers found a clear correlation between release back into regular population and violent incidents. Releases declined to 4,025 in 2017 from 5,501 in 2012, while the number of those leaving segregation who were implicated in an assault rose to 321 from 244, according to the Office of the Correctional Investigator.

Furthermore, Correctional Investigator Ivan Zinger stated that the new strategy to limit prolonged segregation has had the unintended consequence of more violent attacks behind bars, and he's urging the Correctional Service of Canada to strengthen supervision and risk assessments to improve safety for inmates. While Mr. Zinger may suggest that these changes lead to unintended consequences, UCCO-SACC-CSN has been unequivocal in its position that this outcome would occur.

In the last two years we have seen institutions that, despite shrinking populations, are becoming more violent due to an organizational repose that reduced control measures—namely segregation—which appears to be correlated with further increases in assaults. While UCCO-SACC-CSN does not advocate for the unnecessary segregation of inmates, it does strive to ensure its continued availability as a population management tool without unreasonable policy-based restrictions or outright elimination.

Consideration also needs to be given to the transitional nature of Bill C-83. Should this bill be implemented, all inmates who are subject to disciplinary segregation will no longer be the subject of this sanction, in sections 39 and 40. This will result in immediate changes to the management of violent offenders in institutional populations without apparent consideration for how they will be managed moving forward.

Bill C-83 seeks to replace segregation with the implementation of structured intervention units, the details of which are still vague. The bill will allow the commissioner to “designate a penitentiary or an area in the penitentiary as a structured intervention unit” for the confinement of inmates who cannot be maintained in the mainstream population for security and other reasons. This is proposed section 31.

Furthermore, within Bill C-83 references to segregation have been eradicated and replaced throughout by structured intervention units. As it currently stands, UCCO-SACC-CSN is of the opinion that the only units suitable for managing inmates who cannot be maintained in the mainstream inmate population for security or other reasons are CSC's existing segregation units. It remains unclear whether this bill will result in actual closures of segregation or more simply their renaming with something more politically appropriate, as in proposed section 31.

Regardless of where structured intervention units are situated within federal institutions, Bill C-83 also seeks to amend the manner in which the most difficult portions of the institutional population are managed. SIU inmates will be provided with the opportunity to interact with other inmates for at least two hours as well as the right to spend four hours outside their cell.

While these changes are undoubtedly well intended, they are not feasible under the current staffing and infrastructure models. Many of the inmates currently managed within segregation units are highly vulnerable and are segregated for their own protection. In order to provide them with the amount of interaction proscribed within the new bill, they will require direct and constant supervision from already limited numbers of correctional officers.

Conversely, the inability to adequately manage incompatible inmates will lead to consequences like those seen at Archambault and Millhaven institutions where inmates were murdered in separate incidents in early spring 2018.

In general, should we proceed to the SIU model as a replacement for segregation, it is our hope that these changes will be implemented gradually so they can be properly assessed and amended as necessary.

It is promising to note the discretionary power will remain with the commissioner to extend the proposed SIU status over 30 days, allowing correctional officers the ability to manage high-risk, volatile or self-harming offenders without hard-cap time frames.

As with the implementation of the SIUs, the ability for CSC to repurpose existing infrastructure to meet the criteria of Bill C-83 is unclear. Policy changes resulting from the passage of Bill C-83 will restrict an institution's ability to respond to the needs of specific inmates, the broader population, to meet its current mandate and to provide a safe work environment for staff.

Should these changes occur in order to continue to meet critical strategic priorities effectively, significant infrastructural changes at the institutional level are necessary.

Changes proposed by the bill will allow the commissioner to “assign the security classification of 'minimum security', 'medium security', 'maximum security' or 'multi-level security', or any other prescribed security classification, to each penitentiary or to any area in a penitentiary.” This is in proposed section 29.1.

From an operational standpoint, this wording appears quite vague. Historically, CSC institutions have been constructed with a security standard in mind. To attempt to retroactively change the security ratings of not just individual institutions, but areas within those institutions, seems to be at odds with the original vision of them. This would significantly complicate population management strategies.

The powers of the commissioner are also broadened in relation to transferring inmates within the various security levels of their institutions. It will reinforce the power of the commissioner to transfer inmates to different security levels, for example, transfer a maximum-security level inmate to a medium-security area. Given the security implications of these transfers, we feel that it is prudent to solicit correctional officers' input in these decisions, as we are most familiar with their behaviour and potential outcomes.

Additionally, UCCO-SACC-CSN has been calling for the creation of a special handling unit for female inmates since 2005. Despite every effort, some female inmates exhibit behaviour that simply cannot be safely controlled in regular institutions within the current infrastructural model.

In similar instances involving male offenders, CSC has the ability to transfer otherwise unmanageable inmates to the special handling unit. Historically, due to a lack of alternate options, this has resulted in female inmates being placed in segregation for exceedingly lengthy periods of time. However, under the new guidelines of Bill C-83, CSC may be forced to involuntarily transfer these inmates on a regular and ongoing basis in order to be in compliance with the law.

The same set of circumstances that marked Ashley Smith's incarceration will become even more prevalent. This will serve neither the inmate nor CSC's legislative mandate, yet until changes to existing infrastructure are realized, they will be a necessary reality.

As a result of eliminating the segregation tool, CSC will be forced to rely on managing groups of inmates through the creation of subpopulations. Effectively, they are segregating inmates, without actually physically placing them in segregation.

I notice the chair is giving me the nod there.