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.

Corrections and Conditional Release Act

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I am pleased to speak to Bill C-83, an act to amend the Corrections and Conditional Release Act and another act. The key point in this legislation relates to Correctional Service Canada's policies, especially the practice of administrative segregation.

I should point out at the beginning that the bill would do four key things. One, it proposes to eliminate segregation, based on recent court decisions, and it introduces more effective structured intervention units. Two, it would better support victims during parole board hearings by, as my previous colleague mentioned, providing audio recordings of those hearings. Three, it would increase staff and inmate safety with new body scanner technology. Four, it would update Correctional Service Canada's approach on critical matters like mental health supports and indigenous offenders' needs. There are fairly extensive policies in this bill on both those latter points: mental health and indigenous offenders' needs.

There has been much criticism of the policy on administrative segregation within the Correctional Service of Canada, and rightly so. I have listened to the debate on the other side, and some have said it is a necessary tool. I do not necessarily agree with that, but something certainly has to be done. In the previous Parliament, I was a critic for public safety and at one time served as solicitor general and was in charge of the Correctional Service of Canada, so I have read a lot of the criticism related to administrative segregation. We have to understand in this place that administrative segregation was there for very legitimate reasons: to protect the inmates themselves from the general population if they were causing trouble; to protect others in the general population from things that those people put in administrative segregation might otherwise have done; and to protect correctional officers from possible harm by moving these inmates to segregation. I understand those key points.

I do not know if many people in this place have seen those segregation units in many of our federal penitentiaries and prisons. I have, and it would not be a great place to spend days on end without mental health services. In fact, as my colleague from Central Nova mentioned earlier, we have to understand that our correctional system in this country is not just about throwing somebody in a cell and throwing away the key. Our system is based on the premise of rehabilitation, and that is the ultimate objective. Yes, there have to be penalties, and severe penalties, for crimes done and, yes, some people stay in the system their whole life after they have committed a crime. However, we must keep in mind that many people, the great majority we hope, will come out and be productive citizens in society. That is what we have to attempt to do.

Therefore, what this particular bill proposes is basically to try to put a new system in place, called a “structured intervention unit”, where people who have to be separated from the mainstream inmate population, generally for reasons of safety, will be assigned to a secure intervention unit but not in the same style as in the past.

In addition to being assigned to that secure intervention unit, or cell, Correctional Service Canada would be mandated to provide them with rehabilitative programming, mental health care, and other interventions and services that respond to the inmate's specific needs. That especially relates to those with mental health problems, for whatever reason, and especially applies to the indigenous population, which has different customs and patterns. I have heard a lot of talk in this place about healing centres. The fact of the matter is they work, and we need to keep that in mind too.

Beyond meeting those specific needs of an inmate, keep in mind that we want to protect the individual, the rest of the prison population and the corrections officers working in the system. Under this approach, it would be done in a different way from what is currently in place, as we would address the mental health care needs of inmates and could intervene with other services where appropriate.

Beyond all of that, there are a number of reviews that have to take place. I have talked to a lot of corrections officers, and I can understand that when an inmate challenges them within the prison system, it is really hard not lose one's temper and to want to be vindictive. This is supposed to work at preventing that from happening as well. However, for the inmate, there are several reviews that would take place. There would be a review by the warden within five days, and there a couple of other reviews in place as well.

This bill tries to move away from a system that we know has been challenged in the courts. Yes, we have appealed the decision in question, because we want to keep all options open. It is a system that has been strongly criticized by the correctional investigator, and this bill tries to come up with a better system that would work. In part, that is what this bill is about.

In closing, as my colleague mentioned earlier, there is a real attempt to provide better services to victims in this bill. For example, the recordings of the Parole Board hearings would be provided so they could be reviewed in a quieter place at another time to see what was said. This legislation would add a guiding principle to the law to affirm the need for Correctional Service Canada to consider systematic and background factors unique to indigenous offenders in all the decision-making done within the system.

This bill does not change the world. Keep in mind that we have a system of penalties in this country that, overall, is designed to try to make individuals who have committed a crime, for whatever reason, better citizens when they come out of prison, not better criminals. Our objective is to make them better citizens so they can contribute to their family, their own life's work and to the Canadian economy. This bill does not change the world, but it is a fairly major step forward in how we would handle inmates, how we would work with them within the prison system and how we would try to give victims better services. At the end of the day, this is a bill that members should support.

[Mark Strahl, Conservative, Chilliwack—Hope, BC]

Mr. Speaker, I always appreciate hearing from the member for Malpeque, who did remind us that four prime ministers ago he was the solicitor general, I believe. He would have had some occasion to understand administrative segregation, more intimately perhaps, than some of us.

I have been to the Kent maximum security prison which used to be in my riding. It is now in the neighbouring riding. I can tell my colleagues that, having been through those segregation units, every single offender who is in that segregation unit is not there because a prison guard or the administration is being vindictive, as the member indicated. Rather it is because a person has committed acts inside the prison that make that person unacceptable and too great a risk for the general prison population.

I guess my question is this. We have to legislate for the exceptions. The Parliamentary Secretary to the Minister of Environment talked about rehabilitation. Certainly, for those cases where that is possible, we support that. Where we do not support it is for people like Robert Willy Pickton, who is in a maximum-security facility, segregated for his own safety, I would argue. He is there. He is never getting out. He is never going to set foot as a free man in a community in Canada again. What tools would a prison guard have to deal with someone like that? We have to legislate for those exceptional cases where these people are not going to be cascaded down through the system and released.

Why does someone like Willy Pickton, Canada's worst serial killer, deserve four or two hours of meaningful human contact? What benefit does that have for him, other than to put people in the prison system who have to deal with him at significant risk?

I just do not see how this legislation addresses those exceptional situations.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I guess that is the difference in approach that we take on this side versus the opposite side of the House. We do not make laws based on one or two exceptions. We make laws on the population as a whole. I think that is what we have to do.

There are exceptional cases. There is no question about that. The member made a point on the Pickton case and it is a valid point. However, this particular bill does not give Pickton more rights. He is still in the system and, yes, he may be provided more mental health services.

I do agree with the member opposite that this is for protection. In most cases, it is for protection of the inmate themselves and also for protection of the correctional officers. I did not say that offenders are put in there because of the vindictiveness of correctional officers. Rather, they are put in there because they broke the rules within the system of Correctional Services Canada.

However, we do have to recognize that the old system of solitary confinement, which I think is a better description, is not working. It is challenged in the courts. It does nothing in most cases for better mental heath and better rehabilitation and it has to be changed. What is put forward in this bill does it in a realistic way for all matters intended.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, to the hon. member for Malpeque, my question is this. Why is there no independent oversight of the commissioner's decision-making on putting people into administrative segregation in this bill, as Justice Leask in the B.C. Supreme Court and others have so strongly suggested?

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, this is one bill and one step forward. I think it is certainly a step in the right direction that will improve the lot of inmates who are in the prison system.

As I said, in the bill we will also improve victims rights by getting the recordings. It may not go as far as the member opposite wants to go, but I think it is a fairly major step forward.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am pleased to rise in this important debate today on Bill C-83, that would deal with the abolition of early parole and the issues on conditional release and corrections. I say at the outset that I will speak in opposition to the bill at second reading. I do so for a number of reasons I will try to describe.

I will first talk about the nature of what the bill has tried to respond to, the difficulties, the dilemmas, the torture, as some people have called it, that is involved in solitary confinement. Perhaps one can call it by other words, but that is what it is. Then I will talk about what a couple of our superior courts have said about this practice and the constitutionality of it, the fact that the government has continued with the appeals of those judgments and yet brought in a bill which by all measure is a very modest response to the very strong language of our courts in addressing the issue of solitary confinement.

I would say that this is a modest improvement. I do not want to be misunderstood. There are some things that are in the right direction in this legislation, but it is a pity that, in light of the long and thoughtful decisions in both the Ontario Superior Court and Mr. Justice Peter Leask's decision in the B.C. Supreme Court, this is the result. It is a very modest, to use a neutral word, response to their very strong language.

Let me talk initially about what they said. The B.C. Civil Liberties Association and others brought a constitutional case to the B.C. Supreme Court. In a landmark decision that was handed down in January this year, Mr. Justice Leask in his last judgment before leaving the bench provided what can only be described as a blockbuster decision. Among the things that he talked about, to build on what I asked my friend a moment ago, is the need for an independent review of segregation placements and that is entirely lacking in this decision.

He decided that the practice of solitary confinement, as it was practised at that point in time, breached the security of the person. He said: "I find as a fact that administrative segregation as enacted by [the statute] is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide." He wrote a 54,000-word judgment after hearing days and days of testimony, a very carefully reasoned decision and he held that it violated the security of the person that is guaranteed in our charter.

He also said that it discriminated against first nations, disabled and mentally ill individuals. The findings for that again are based on a thorough analysis of the situation at hand. He said thousands of prisoners have been subjected to solitary segregation over the years, isolated for up to 23 hours a day, sometimes for months and sometimes for years. Indeed, we know the sad story of Mr. Edward Snowshoe, an indigenous prisoner who died by suicide after languishing in solitary for 162 days without any meaningful attention from staff.

This is akin to a form of torture. This is not unlike the harm we have heard about in other contexts in this place of post-traumatic stress disorder that leads to the serious risks of suicide and self-harm as has happened so many times. Thousands of prisoners have been subjected to that isolation for so long and for so many hours a day and for so many days in a year.

There are about 14,000 inmates in federal institutions, 679 of them women. One in four of the incarcerated men spend some time in segregation. To my surprise, more than 40% of women do. This is a prevalent problem across our institutions and it is not just limited to some prisoners and some institutions, but is endemic across the country.

Those who believe that prisons are there to provide punishment but also for rehabilitation purposes should listen to what the judge concluded after days and days of testimony. He stated, “I have no hesitation in concluding that rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous both within the institutions’ walls and in the community outside.” This is not serving the community and it is certainly not serving the people who have been in institutions for that long. The kinds of concerns he talked about include anxiety, withdrawal, hypersensitivity, hallucinations, aggression, rage, paranoia, hopelessness, self-mutilation and suicide ideation behaviour.

There is no question that we have dealt with a serious problem. It is not only the judge who said this. The correctional investigator of Canada and the United Nations Committee Against Torture have looked at that and concluded that there were serious issues that had to be addressed. Indeed, Justice Leask said there should be time limits of 15 days in solitary, longer periods are considered torture by the United Nations and the government indicated it could implement that standard. That is what led to the legislation before us today.

As I said at the outset, there are some tweaks in here that are helpful. The administrative segregation or solitary confinement has been rebranded as structured integration units, sort of an Orwellian term I suppose, but maybe the language will change things to some degree. Importantly, instead of spending up to 22 or 23 hours in segregation, the new scheme proposes up to 20 hours a day, but for an indefinite period of time. The Ontario Superior Court found that harmful effects can manifest in as little as 48 hours, so I ask whether that is likely to change anything in a significant fashion. I think not.

One of the things Justice Leask spent pages on in his decision was the need, as so many have said, to have an independent check on the discretion of the prison head or the Correctional Service of Canada's top official. That is lacking entirely in this bill. Senator Pate put a press release out and referred to this legislation, saying it is “only merely a rebranding of the same damaging practice”, now called structured intervention unit. She said that this bill “also virtually eliminates existing, already inadequate limitations on its use”, it “maintains the status quo regarding a lack of effective external oversight of correctional decision making”, it does nothing to deal with what Justice Louise Arbour concluded when she studied the prison for women in Kingston and she acknowledges, as the courts have, that the way segregation or solitary confinement is applied is disproportionately affecting “indigenous and racialized prisoners and those with mental health issues”.

This bill needs improvements on the checking of the discretion that is available to officials by way of appeals. The involvement of counsel on disciplinary hearings is a step forward, but there is so much that needs to be done to address the horrific practices that have been castigated by our courts in thoughtful decisions. This bill does not go far enough to address their disturbing conclusions.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, while I do not agree with all that the member for Victoria said, he certainly put forward a compelling case for some of the arguments he put forward.

The member for Victoria alluded to the British Columbia Supreme Court decision. We also have, as he alluded to, the Ontario Superior Court decision. He noted that in the British Columbia Supreme Court decision, there was a fair bit of elaboration on the part of the judge about the lack of an independent review. Going through the Ontario decision, what seems to be one of the key elements of that decision was the lack of an independent review.

Meanwhile, we have a government that says it is introducing this legislation to respond to these court decisions, but if that is true, it seems that one of the key elements of both of those decisions is lacking in Bill C-83. Would the hon. member agree?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, my friend from St. Albert—Edmonton is absolutely right, and I would go further.

Both judgments talked about the lack of external review. There is no independent third party to review the discretion of the CSC administrator, and that is shocking. That was one of the key elements of both decisions, as the member correctly pointed out.

What is also shocking is that despite losing both of these decisions so dramatically, the government sees fit to bring in a halfway measure in Bill C-83, and to continue the appeals to the Court of Appeal and the Supreme Court. These appeals cost lots of money, and for what purpose? Why can the government not accept what the courts have said so dramatically, improve the bill, and save people having to go all the way to the Supreme Court for the government to be told external oversight is required?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am somewhat surprised at the position the NDP has taken on this piece of legislation.

Looking at this legislation, as I know my colleague has, there is absolutely no doubt it improves the current system. It deals with the issue of segregation. It deals with audios for victims. It includes body scans. I would ultimately argue that Bill C-83 is a progressive piece of legislation.

Why would the NDP not support this legislation? Maybe that party could attempt to get some amendments made at committee, or something of that nature. Would those members not at least acknowledge that the bill would improve what we currently have in place, even by NDP standards?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am not interested in NDP standards. I am interested in constitutional standards.

Two courts have told us that the government needs to go well beyond what it has done in this legislation. I acknowledge that this was not explicit, but none of the key elements that the courts have referred to are dealt with here.

My friend from St. Albert—Edmonton has pointed out that the government has decided not to have any third party review the administrator's discretion, which is a key element of this, the constitutionality or the disproportionate impact on indigenous people, blacks and people with mental disabilities. How is the bill going to address that?

Yes, there would be less time in solitary. Yes, the government has a new name to describe the practice. Yes, there have been some changes, as my friend referred to.

It is not NDP versus Conservative versus Liberal. It is about the Constitution of Canada.

I ask any fair-minded person to read this legislation, read the two judgments at issue, and see whether the government has gone far enough.

Why would the government continue an appeal in the face of this?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, in the British Columbia Supreme Court decision my colleague alluded to, I get the sense that the judge was, in essence, calling on the government to re-examine the whole concept of administrative segregation. Unfortunately, I do not see the government doing that.

Does the member agree that the government has not re-examined the use of administrative segregation thoroughly and in detail?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, my friend from Abitibi—Témiscamingue is absolutely right. The broad review that the judge was calling for is simply not to be found in this legislation. There has been some tinkering, and there have been some modest improvements. The Liberals have referred to them in those terms.

It is unclear whether or not higher courts are going to confirm the unconstitutionality of the past system. It is unclear to me whether Bill C-83 goes the distance in achieving the justice that the courts require for those in solitary confinement.

[MaryAnn Mihychuk, Liberal, Kildonan—St. Paul, MB]

Mr. Speaker, it is my pleasure to stand today and speak to Bill C-83 and the impacts of the corrections facilities and our justice system on real people. In particular, my interest is on indigenous people, and how they are treated by the justice system and in our correctional facilities.

We are looking at a bill that will actually do what it promises and what it needs to do, which is eliminate solitary confinement. That was the major goal, and that is what this bill will do. It is also going to hold guilty parties accountable for breaking the law. Each and every Canadian wants to ensure that we have a justice system and a corrections system that are going to hold offenders to task, that they are receiving the proper penalty, and hopefully that they receive rehabilitation services to make them meaningful and active participants in our society.

Ultimately, we want fewer repeat offenders, fewer victims and safer communities. That is why our government is strengthening the federal corrections system, aligning it to the latest evidence and best practices so that inmates are rehabilitated and better prepared to re-enter our society safely.

This bill will eliminate solitary confinement, following recent court decisions and introducing a more effective system that will be called the structured intervention unit system. It will also provide better supports for victims during parole board hearings. It will increase staff and inmate safety with the new body scanner technology. It will also update our approach on critical matters like mental health supports and becoming more sensitive to indigenous offenders' needs.

There is no stronger case to reflect on than the Ashley Smith case, where a young girl was throwing crabapples at a mailman. She ended up in a youth facility, and her experience was then compounded with various acts of aggression and hostility because she felt she was not being treated fairly. Young people who are faced with a situation of hopelessness reach out in any way they can. Ultimately, Ashley hanged herself in a correctional facility operated by the Government of Canada.

It is hard to understand how a young woman would feel so hopeless in a facility that is supposed to be providing rehabilitative services. Ashley Smith's story is one that we should all reflect on. We would reflect on the fact that here was a young girl who was placed in a youth facility for a month in 2003, at the age of 14, after throwing crabapples at the mailman.

I am sorry, but this hardly seems like a reason to end up in confinement, whether it is in a youth facility or not. I have three children. I do not believe any one of them has ever actually thrown a crabapple at a mailman, but I am sure they have done things that might even be worse. The point is that this young girl was thrown into jail, a youth facility, and that experience was compounded. Instead of getting out and rejoining society, she might have had another small infraction, and then it was extended and extended to the point where her life held no hope that she could see, and where she would rather commit suicide than go on living in her condition in solitary confinement. It was a tragic situation and one that this bill is addressing.

We know more can be done, and more needs to be done. We know from the statistics that many of the people in our correctional facilities come from an indigenous heritage. Indigenous people far outnumber those from other communities. We must address the root causes, and that is a much more complicated and longer journey. However, I am proud to say that this is a government that is finally taking steps forward. We have a Prime Minister who has made a commitment to the indigenous people of this country, and to all of us, that this is an issue that we are finally going to address. Progress is being made.

When we go back to look at the bill itself, there is a need to make changes. This is a government that has taken steps forward, and there is no doubt that there are those in our community who will be concerned that some prisoners may be dangerous to the guards, to other inmates and to themselves, and that solitary confinement plays an important role in our correctional facilities. However, they need to understand that this was not the best way to help people. In fact, people in solitary confinement do not receive the supports they need to become stronger and healthier: the mental supports, the health supports and the supports they need to function in a very stressful circumstance.

Therefore, I am very pleased to see that we are eliminating solitary confinement and looking for new alternatives that would keep those offenders from the general population while allowing them to retain access to rehabilitation programs, mental health care and other interventions. Ultimately, effective rehabilitation and safe reintegration are always the best way to protect Canadian communities.

This is an issue that we are looking at federally, but it has also been addressed provincially. I note that in May 2018, Ontario passed Bill 6, the Correctional Services Transformation Act. On May 7, 2018, the province implemented a hard cap on days spent in segregation.

The number of inmates who are in segregation has been dropping, and we are glad to see it. In 2011, there were 700 inmates in solitary confinement, and now that has dropped to 340. I am pleased to say I am a member of a government that is finding a way to eliminate solitary confinement.

While the correctional investigator has looked at the situation and acknowledged that the reduction in the use of solitary confinement is an improvement, he has also raised concerns that this decline may be related to increased violence among inmates. There is more to do, as we know, and we must continue to move with society to make appropriate amendments.

The structured intervention units would replace solitary confinement. Individuals would be separated from the mainstream inmate population, generally for safety reasons, and they would be assigned to a secure intervention unit. This would separate inmates when necessary, while continuing to provide them with rehabilitative programming, mental health care, and other interventions and services that respond to their specific needs.

This bill does several other things, including providing supports to victims. The bill would allow audio recordings of parole hearings. At this point, these are only available to victims who do not attend. The recordings would now be available to any victims, even if they attend, and would be an important record for them to review for the future.

The proposed bill also puts in law the guiding principles to affirm the need for CSC to consider systemic and background factors unique to indigenous offenders. This is an important and positive step for all Canadians, in particular our indigenous members of our society.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, when we listen to the news on the radio, for example, we hear about how the Liberals want to scrap administrative segregation. I heard that three times during the member for Kildonan—St. Paul's speech too. That says to me that nobody will ever again be isolated in a cell for several hours a day or several days in a row.

However, that is not what Bill C-83 says. All it says is that the term “administrative segregation” will be replaced by “structured intervention units”, that the number of hours will be reduced from 22 or 23 to a maximum of 20 hours, and that the inmates will have contact with other people. They can still be segregated for 20 hours a day for an indefinite period of time. There is no limit on the number of days an inmate can spend in a structured intervention unit.

How can the government tell people it is doing one thing even as it is doing another? How can it mislead people like that?

To me, that is outrageous.

[MaryAnn Mihychuk, Liberal, Kildonan—St. Paul, MB]

Mr. Speaker, there will be a fundamental change in the way people who are in an isolated cell are treated. That includes a minimum of four hours out of their cell daily and at least two hours of meaningful human contact with staff, volunteers, visitors or other compatible inmates. There will also be a daily visit by a medical professional.

By contrast, people currently in solitary confinement are only entitled two hours daily out of their cell, with minimal human contact and access to programming. This does not go as far as what the NDP advocates but goes much further than what the Conservatives advocate. The Liberals have made a positive step in the right direction.