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.

[Jim Eglinski, Yellowhead, CPC]

Thank you.

I'd like to thank both the Elizabeth Fry Society and the John Howard Society for coming out, but I'd really like to thank both of the other two witnesses, Alia and Lawrence. It takes a lot of nerve to come up here, and congratulations. I think you're giving us a clearer picture of the situation that's really out there.

I have a medium-security facility in my riding of Yellowhead, the Grande Cache Institution, which I think is probably one of the most beautiful settings for an institution anywhere in the world. It's right on top of a mountain. I've had the opportunity since Bill C-83 came out to talk to the guards, to the prisoners, to former guards and former prisoners. They don't like it, I don't like it and it's obvious you folks don't like it.

Lawrence, I'm going to ask you a couple of questions and some of them might be a little pointed, but I'm not trying to be.... First of all, I want to compliment you on the way you've handled yourself here.

We kept hearing from the commissioner and the other people—

[Alia Pierini, Regional Advocate, Pacific, Canadian Association of Elizabeth Fry Societies]

Okay. I'll really speed here.

My name is Alia Pierini. Thank you, guys, for having me here today. As Savannah mentioned, I am a regional advocate out in British Columbia, where I meet with the women out there, and I'm also a woman with five years' lived experience inside the Fraser Valley institution.

To make this brief, while I was incarcerated I spent over half of my time in segregation. I've been out for almost 10 years now and I still suffer psychological effects on a daily basis in getting to work, managing my parenting and simple social things like going to the grocery store. I still have bad anxiety and mental health issues surrounding this, which I did not have before entering prison.

I truly fear that the structured intervention units described in Bill C-83 are going to end the downward pressure they have surrounding segregation and that these new units will be the new first-line response to the ongoing challenges that prisoners and the correctional system face. Although in the eyes of the public Bill C-83 seems like an answer to ending administrative segregation, I know from first-hand experiences that implementing this into the prison will be beyond challenging.

I guess I'm short on time, but basically, for example, those four hours out are at CSC's discretion. It's a system where unfortunately correctional staff have the power to pick and choose who gets what. It happens constantly. If staff doesn't like you but likes other inmates, those inmates will get their hours out and other inmates will suffer.

[Savannah Gentile, Director, Advocacy and Legal Issues, Canadian Association of Elizabeth Fry Societies]

Thank you. I want to start by acknowledging that we are on the unceded territory of the Algonquin people.

As stated, I am the director of advocacy and legal issues with the Canadian Association of Elizabeth Fry Societies. We are an umbrella organization composed of 24 Elizabeth Fry Societies across Canada working with and for criminalized women and girls. Together, we work towards a Canada without prisons as we support human rights-based training, provide preventative programs and services, and facilitate women's reintegration into the community.

As the director of advocacy and legal issues, I have the privilege of working with and supporting over 20 volunteer advocates—some of whom, like Ms. Pierini, who you will hear from in a bit, were formerly incarcerated—as we go into the prisons for women on a monthly basis to monitor conditions of confinement.

Though I am trained as a lawyer, the best education I have received to date has come from the women I meet going into Canada's prisons. I hope to communicate some of the concerns that they have presented to me regarding Bill C-83.

When the Corrections and Conditional Release Act was first introduced, it was seen as human rights legislation, responding to human rights abuses and rising rates of imprisonment. Since its introduction, however, we've seen the exploitation of the security-focused provisions and the underutilization of provisions like sections 81 and 29, aimed at decarceration. CAEFS, along with the Office of the Correctional Investigator, has documented this pattern for decades, and we believe that Bill C-83 will not have the impact intended and, in fact, that portions of the bill actually represent a regression in terms of legislative safeguards like those Ms. Latimer has already referenced and in terms of decarceration.

I want to focus first on section 81. The bill replaces the term “indigenous community” with “indigenous governing body”. However, this is an undefined term, and it will definitely have an impact on who is able to apply for section 81 agreements. There are no corresponding changes to the legislation to ensure or even to support the development of more section 81s, as has been called for by the Office of the Correctional Investigator in his latest report. This leaves us to believe that the changes will actually further limit an already underutilized provision at a time when the number of indigenous women in prison is described by many, including the OCI, as representing a human rights crisis.

Amendments to section 29 frustrate the provision's legislative purpose and will have a particular impact on women prisoners. The number of women with complex mental health needs is on the rise, according to the OCI's latest annual report. More than half of all women in prison are identified as having mental health needs, compared to 26% of men. The nature of women's mental health needs is impacted uniquely by the lasting effects of past abuse.

The Canadian Human Rights Commission reports that women use self-injury as a coping mechanism to survive the emotional pain rooted in traumatic childhood and adult experiences of abuse and violence. Corresponding to the higher rates of abuse experienced by women prisoners, the rates of self-injury and attempted suicides are significantly higher among women in prison as compared to among men. The multiplier effects of race and sex create a distinct discriminatory impact on federally sentenced indigenous women that affects their experience of incarceration from beginning to end.

The Office of the Correctional Investigator reported extensively on a similar repurposing of section 81 in its report “Spirit Matters”. CSC redirected money and resources meant for decarceration through section 81 agreements to internal halfway houses that were meant to provide indigenous-focused programming. To this day, section 81 is underutilized, and access to indigenous programs inside is seriously restricted.

Section 29 has also been historically underutilized and this amendment makes it possible to transfer women to structured intervention units within the prison, despite numerous reports and commissions stating that the prison environment is an inappropriate and inadequate environment for dealing with complex mental health needs. That applies to both men and women. A more robust investment in section 29 to decarcerate is needed, and the amendments, as they stand, will likely impede decarceration strategies.

Further, proposed section 29.1 enables the creation of additional classification systems, which will be done in accordance with what are unwritten regulations, so we have no way of knowing what those will look like or addressing them here today.

This is despite the fact that CSC's classification scheme, according to the fall 2017 report of the Auditor General, results in women being needlessly placed in higher security, unnecessarily causing them to be segregated in higher-security settings, delaying access to programs and prejudicing their chances of release and reintegration success. We have reason to believe—Ms. Pierini will dive into this later—that this will not be any different in these structured intervention units.

CAEFS has long recognized, likely because of our in-prison visits and our meetings with women affected, that segregation is practised in Canadian prisons in many forms and under many names, much more so than what is usually talked about as solitary confinement or administrative segregation.

I will quickly address a few of the points around the structured intervention units and, first, this idea of meaningful human contact, which Ms. Latimer has already talked about.

In the recent BCCLA and Canada case—it's 2018 BCSC 62—the attorney general actually argued that administrative segregation is not solitary confinement since prisoners have daily opportunity for meaningful human contact, but the court found that prisoners did not have meaningful human contact, and that routine interactions between staff and prisoners do not constitute meaningful human contact.

Without a definition, we have no way of knowing what this will look like. It's left completely to CSC, which has a history of poorly implementing or not at all implementing recommendations, to determine what meaningful human contact will look like, or later, it will be left to the courts to decide. In the meantime, how many will suffer as a result?

On the idea of duration, in the BCCLA case, the 15-day maximum prescribed by the Mandela rules—which are minimum standards—were stated to be a “generous” maximum, given the overwhelming evidence of the psychological harm that can occur after just a few days in segregated conditions.

Finally, the reasons for transfer are listed n Bill C-83, including to:

(a) provide an appropriate living environment for an inmate who cannot be maintained in the mainstream inmate population for security or other reasons;

“Other reasons” is very broad and leaves it well open for many people to be captured by this because of mental health behaviours that are deemed bad behaviours.

CSC has a duty to accommodate prisoners with mental disabilities who cannot cope in the general population. If it is unable to accommodate those prisoners without escalating their security classification or segregating them, whether in segregation units, secure units or SIUs, then it should be transferring them to an appropriate in-community treatment facility.

I'll close by saying that as Dr. Zinger mentioned in his press release following the tabling of this year's annual report, units much like the SIUs proposed by this bill already exist in prison. At Nova prison for women, staff have renamed the segregation unit “Pod C” and allow women there additional time out of their cells and more social interaction. Many of the women being held in segregation in Pod C were placed there because of incidents of self-harm. The women in this pod believe that they are in segregation, and their mental health is deteriorating just as it would in segregation.

Calling these segregated conditions something other than segregation, even with slight improvements, does not change the detrimental experience or impact of those conditions.

I'll hand it off to Alia.

[Catherine Latimer, Executive Director, John Howard Society of Canada]

Thank you very much, Mr. Chair.

I appreciate the invitation to be here to talk about this important bill that you're considering.

Some of you may know that the John Howard Society provides services to support the reintegration of prisoners into communities, and other services across the country. We serve about 60 communities. We are particularly concerned and all committed to just, effective and humane criminal justice in corrections. Administrative segregation has been a long-standing issue of ours. While Bill C-83 purports to end solitary confinement and administrative segregation, there is a very real risk that this bill will perpetuate the harms of prolonged solitary confinement under another name. In these brief introductory remarks, I really want to highlight what those risks are.

An analysis of Bill C-83, in terms of its fairness, effectiveness and humanity, reveals its vulnerability on all three counts.

First of all, prolonged isolation is inhumane due to its devastating physical, psychological and mental health consequences. The UN has defined prolonged solitary confinement as the confinement of inmates for 22 hours a day or more without meaningful human contact for more than 15 consecutive days, and it is regarded as a form of torture. Whatever the confinement is called, whether solitary confinement, segregation or structured intervention, if the actual result is that people are in cells for 22 hours a day or more without meaningful contact for more than 15 days, it's inhumane.

There are a number of points that I would like to highlight with respect to the inhumanity.

Mental illnesses are exacerbated by placements in isolation. There is nothing in this bill that would protect mentally ill prisoners from being subjected to prolonged isolation. Daily visits by health care professionals are required now, and they didn't protect the many who have committed suicide in segregation cells, Devon Sampson being a recent example. In the bill, the health care professionals can only make a recommendation to the decision-maker, who is a non-independent CSC official. Mentally ill prisoners could seriously deteriorate and suffer in SIU isolation.

Proposed subsection 36(1) provides opportunities for a prisoner to be out of a cell for four hours or more per day and for a minimum of two hours per day in “programs, interventions and services that encourage the [prisoner] to make progress” on the correctional plan. I highlight the word “opportunities” because I think that the previous panels that appeared before you made it sound as though prisoners would be out of their cells for four hours a day. An opportunity is a chance that something might happen, but unless it actually happens, federal Canadian prisoners will be subject to cruel, isolating segregation.

The infrastructure—both the physical and human resources—is not in place to allow prisoners to have this amount of constructive time out of cells. The proposals in Bill C-83 have not been costed, and thus no resources have been allocated to implement the bill. It seems that this bill is being presented a bit prematurely because there's no real way of knowing the range of program supports that will be available to people in these structured intervention units.

While the opportunities are presented in proposed subsection 36(1), proposed subsection 37(1) takes those opportunities away for a variety of reasons. It lists three main ones. The first is if the prisoner refuses. The second is if there's a failure to comply with reasonable instructions, and the third is undefined prescribed circumstances reasonably required for security purposes.

If there is inadequate infrastructure, it's easy to decline to give prisoners four hours out of cells per day for security reasons. There are a lot of other reasons why prisoners remain in cells now, and we'll get into that a bit more later.

There's also no definition of “meaningful human contact” in this bill. It can't be simply communication with correctional officers or other prisoners, or walking alone in a concrete yard. We need to have a clear definition of what is meant by “meaningful human contact”.

The second point is that the process is unjust. It is settled correctional law that a denial of residual liberties triggers section 7 charter rights. As the Supreme Court of Canada case May v. Ferndale Institution determined in 2005, a placement in more constrained circumstances constitutes a denial of residual liberties. Fundamental justice is not reflected in Bill C-83.

By eliminating disciplinary segregation, the bill actually rolls back procedural rights for those placed in segregation or SIUs for disciplinary reasons. There is no longer an independent chair as a decision-maker. There are no caps on the length of time the residual rights can be limited, and there is no right to representation for those who are being subjected to this more confined containment. All decisions relating to the SIUs are within the discretion of CSC, with no independent oversight or adjudication, no limits on the duration of placement and no counsel or representation for prisoners. The lack of fundamental justice protections when residual liberties are denied is unjust.

Moreover, many mainstream prisoners, particularly those at higher levels of security, do not get two hours per day of programming interventions or services to help them make progress on their correctional plans. If that level of programming and intervention is not also available to the mainstream population, perceptions of unfairness will arise that could lead to unrest in the prisons.

Disciplinary segregation provisions allowed for prisoners who committed institutional infractions to be held accountable through a proportionate denial of residual liberties in a system that provided some measure of due process protection. Under this bill not only will the prisoners be stripped of those protections, but they will be given a minimum of two hours per day of programming to help them make progress on their correctional plan. Given that rule-respecting prisoners would not likely have access to such intensive programming, a perverse system of rewards is established, which will be perceived by other prisoners as being unfair.

Third, abolishing administrative segregation in favour of SIUs will likely be ineffective. The abolition of administrative segregation is a radical change in an institutional climate that is resistant to change. The success of the SIU vision presented to the committee by Minister Goodale is dependent upon the adequacy of the resources for infrastructure programs and appropriate personnel and upon correctional authorities, who are generally resistant to change, implementing these provisions consistent with the vision and providing opportunities to be out of cells.

Abolishing administrative segregation may affect the safety of prisoners and staff. The ability to move inmates who are attacking each other or staff quickly away from each other is an important short-term measure to reduce violence. Prisons can be terribly violent places and people can get hurt. The Union of Canadian Correctional Officers is telling us that the loss of administrative segregation will result in greater violence. If correctional authorities believe their ability to prevent violence is being curtailed, it will affect the manner in which the bill is implemented.

The John Howard Society did not advocate for the total abolition of administrative segregation, fearing that the inability of correctional officers to quickly separate prisoners attacking each other would be dangerous. It also feared that unless the existing legislative framework was the basis for fixing administrative segregation, new units would emerge that serve to isolate prisoners but without the needed legislative protections—solitary by another name.

The John Howard Society wants any regime that could lead to prisoners actually being alone in their cells for 22 hours a day to be more just and humane. We think the way that we can do this is by capping the amount of time spent in such isolation to 15 consecutive days and 16 a year, having independent adjudication relating to decisions, and placement and maintenance around those decisions being delivered by an independent adjudicator.

In conclusion, there is nothing in Bill C-83 that would prohibit prolonged confinement in isolation. The devastating harms that have befallen Ashley Smith, Eddie Snowshoe and countless others would not have been relieved by this bill if CSC had decided to continue their isolation. In clear conscience, the John Howard Society of Canada urges you not to pass Bill C-83.

I have with me Lawrence Da Silva. I think it's important that you hear from people who have actually experienced long periods in administrative segregation and other types of placement. I think he can explain more clearly the realities and the effects of prison culture that will make it difficult for people to be out of their cells for that period of time and that will make this a difficult regime to work with.

I suspect I've used all of our time.

[The Chair, Liberal, John McKay]

Thank you, Mr. Dubé.

On behalf of the committee, I want to thank Commissioner Kelly and her colleagues for their appearance here today.

Colleagues, before I adjourn this meeting, I need a motion to pass the budget for the study on Bill C-83.

I see Mr. Picard, and I see that Mr. Eglinski is also enthusiastic about this.

Is there any debate?

(Motion agreed to)

Thank you very much.

The meeting is adjourned.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

I would like to discuss the exceptions proposed in clause 10 of Bill C-83, which amends subsection 37 of the Corrections and Conditional Release Act. One of the exceptions would allow inmates to refuse the opportunity to spend at least four hours a day outside their cell or interact with others for at least two hours a day.

Are there any mechanisms in place in the event that the opportunities offered pose a problem? I didn't see anything in the bill. I'm thinking of something like a snow storm, heavy rain or ice storm. Are there any provisions that protect the inmates' right to spend time outside their cells in reasonable conditions?

[Anne Kelly]

I can't speak to that.

What I can say is that what is being proposed in Bill C-83 is addressing the underlying behaviours of offenders who will be going into structured intervention units. Hopefully we can address those behaviours, which will mean they can then integrate into the mainstream population, be engaged in their correctional plan, and go before the Parole Board. If they are eligible, they could then potentially get released and become law-abiding citizens.

[Jim Eglinski]

Okay. Thank you.

As Ms. Sahota mentioned earlier, the cost was up to about $1,269 a day for a person in solitary confinement.

In your experience of 30 years—and I think collectively our witnesses today have well over 100 years' experience in the institutional facilities—do you feel there will be a greater cost incurred, per prisoner, than we are incurring currently, just because of the new demographics that are being given to you under Bill C-83?

[Jim Eglinski]

Based on some rough stats I have, on any given day in Canada we have 40,147, or approximately 40,200 prisoners. About 36% of them are held in our federal institutions, and about 64% are held in our provincial institutions, which usually means two years less a day.

The Liberal government is bringing in Bill C-83, an act to amend the Corrections and Conditional Release Act and another act, and I have two questions for you. First, why are we only concerned with the federal prisoners' rights and not the rights of provincial prisoners?

Second, does your organization work with its provincial counterparts, and is there any action going to be taken to see if they are going to come on board with similar standards?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Okay, thank you.

At the technical briefing, something that came up a few times was the resources needed for institutions to be able to adapt to everything in the bill, if it passes.

We heard that the spaces currently being used for segregation could be adapted. Would any physical changes need to be made to those spaces, or could they be used as they are? Commissioner Kelly, you could designate those spaces according to the criteria outlined in Bill C-83, could you not?

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Bill C-83 seems to indicate that these scanners would be used to examine inmates, but it seems that they are not necessarily meant to be used for all visitors. Do you think it would be a good idea to go that far?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The answer to that, Ms. Dabrusin, is that this lies at the core of what Bill C-83 is all about. That is, to provide the capacity in the segregated intervention units through mental health professionals and others to make the interventions, and to provide the treatment and care that will in fact address those mental health issues.

I think I mentioned in the debate in the House that, with respect to the overall population of offenders, the number of those with significant mental health issues is in the neighbourhood of 70%, I believe, when you add men and women together. The number for women is much higher and the number for men is a bit lower. Mental health difficulties are involved with the vast majority of offenders. If we're not addressing that and just sort of storing people until the time runs out and they're eventually released, they're very likely to come out of the system in worse shape and more dangerous than before they went in.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The language used in Bill C-83 is intended to refer generally to social interaction and psychological stimulation that is conducive to mental health and rehabilitation. That is what, by definition, is lacking in administrative segregation. For 22 out of 24 hours a day, a person is alone.

We intend to change that substantially. That may be programming staff from the outside. It could be elders. It could be various kinds of counsellors. It could be mental health professionals, a whole range of people. It could indeed, from time to time, be other compatible inmates.

The whole point is to try to change the course of behaviour of these individuals so that they pose less of a risk to themselves and less of a risk to others and to society generally.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

The finances to allow the implementation of Bill C-83 will be forthcoming through the appropriate budget allocations and estimates.

I'd make the point that one doesn't wade into the detail of that until one actually has the legislative authority to do it. You've made that point yourself, so I take that point. When we have the legislative authority, we will then come forward with the budgetary allocations to implement this plan.

In terms of the physical structures, that will vary from institution to institution, but let me just ask Commissioner Kelly if she—

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Minister.

One of the fundamental changes being included in Bill C-83 is the increase in the number and role of health care professionals in these SIUs. The fact is that in the past, administrative segregation has been used for individuals with mental health issues. Can you comment, Minister, on whether or not these mental health professionals will have the ability to move individuals from an SIU to a treatment facility?

Also, is additional funding at some point for more treatment facilities being contemplated? Often, in my opinion, many of these individuals should actually be treated for their mental health issues and not put into segregation, which is what was being done in the past. Could you comment on that a little?