Evidence of meeting #13 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
10:25 a.m.
NDP
Jack Harris NDP St. John's East, NL
Okay.
In NDP-25 we seek to amend lines 14 and 15 on page 35 of the bill. Proposed subsection 31(2) would then read as follows:
The inmate is to be released from administrative segregation at the end of the segregation period that was determined at the hearing conducted in accordance with subsection (3).
The amendment is designed to ensure that administrative segregation be subject to the same procedure as disciplinary segregation.
10:25 a.m.
Conservative
The Chair Conservative Dave MacKenzie
If I could just interrupt you for a moment, Mr. Harris, your amendment 25 is related to your amendment 26.
10:25 a.m.
Conservative
The Chair Conservative Dave MacKenzie
No, I have another problem.
Clause 60 of Bill C-10 provides for the institutional head to order an inmate to “be confined in administrative segregation” under certain grounds. The amendments seek to amend the bill to refer to a hearing held by an independent adjudicator who would determine if an inmate is to be confined in administrative segregation.
House of Commons Procedure and Practice, second edition, states at pages 767 and 768:
Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation.
In the opinion of the chair, the appointment of an independent adjudicator would entail expenses not currently provided for, and would require royal recommendation. Therefore, I rule the amendments inadmissible.
Those are amendments NDP-25, NDP-26, and NDP-27.
10:30 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Mr. Chairman, I understand the ruling with respect to the exercise of the spending power and the like. I just.... That amendment is important for the government to appreciate the value of the amendment. They could make that change because they have the authority to do so.
10:30 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Okay.
Having ruled those three amendments inadmissible, is there any debate on clause 60?
Mr. Harris.
10:30 a.m.
NDP
Jack Harris NDP St. John's East, NL
I guess the amendments have been ruled out of order because if we have an independent process there may have to be an expenditure of money to provide for that. I don't think it stops me, though, from arguing on the amendment itself as to why an independent adjudicative process is required, and I'll do that.
It was proposed because the circumstances we have here are squarely in relation to the Ashley Smith concerns and considerations. You know, I guess there will now be two types of--
10:30 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Mr. Harris, you can't debate the amendments. You can only debate the clause now.
10:30 a.m.
NDP
Jack Harris NDP St. John's East, NL
I'll tell you why I'm voting against the clause: because it doesn't have—
10:30 a.m.
NDP
10:30 a.m.
NDP
Jack Harris NDP St. John's East, NL
The circumstances are that there will now be two types of segregation.
We have administrative segregation provided for here, without any opportunity for an independent adjudication. If someone is going to be put in segregation—and when we're talking about segregation, sometimes it's called the hole or solitary confinement, and there are various types of conditions associated with it, depending on the institution, the place, and the facilities—it means being segregated from other inmates, and in some cases segregated from other personal contact for long periods of time each day, in some cases 23 or 23 and a half hours with a half hour of exercise. The effect of that can be extremely severe on certain persons and personalities or mental states. Human beings are social animals, if I may use that generic term, or social beings, and interaction with others is an extremely important part of someone's mental well-being.
If the segregation is taking place because someone has violated the rules or done something that constitutes a danger to other inmates, then for disciplinary reasons that person can be put into segregation for a period of time. That period of time has to be determined based on rules that are related to the offence, if it is indeed an offence--the seriousness of the offence, the seriousness of the behaviour involved, the previous record of an offender who's incarcerated, and whether this has been used before. These are considerations that are taken into account, and there's an adjudication process that's involved.
But if you're looking at administrative segregation, the proposed changes—according to the critique we've received, for example, from the Canadian Bar Association—would actually undermine the protective umbrella of law, which is really designed to prevent an abuse of authority. It also can legitimate—under the colour of what appears to be benign language—a more repressive regime inside an institution where the inmate has no recourse, except to complain to the ombudsman, who has a different kind of role.
There's no independent person involved, no independent hearing before an inmate is confined to an administrative segregation. In accordance with the amendments that were proposed, if you had an independent review, or an independent commissioner, or an independent chairperson, the idea would be to ensure that there's no reasonable alternative. That's a decision point in the bill in clause 60 that says “The institutional head may” do this “if the...head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes”—not finds as a fact, but believes—“on reasonable grounds that...the inmate has acted” in a certain way, and pass judgment on various activities.
There's a tremendous amount of subjectivity in that rule, and it allows for—it's not necessarily going to happen—an abuse to occur unchecked. There is no right of appeal from this, no independent adjudication, and nobody who's on the outside looking in, as it were. Many institutions, including correctional institutions, have this sort of corporate culture or attitude or approach that feeds upon itself.
Inside the tent we have the same problems. We're dealing with difficult inmates, we're dealing with problems that they're causing trouble for us. It may be felt that they're jeopardizing the security of the penitentiary, the safety of any person. That would include the person himself or herself. So there comes a point of judgment that takes place, and the perspective is an internal one.
The idea of an independent adjudicator is someone who is not caught up in the day-to-day stresses of the institution and who can evaluate in an independent way and engage in what amounts to not a debate—“debate” is not the proper word—but in the approach, saying “Look, in this particular case there appear to be reasonable alternatives to this very restrictive and potentially damaging segregation that should be tried before administrative segregation takes place”.
I think if someone like Ashley Smith had access to that type of independent adjudication, other alternatives would have been suggested, made available. The attention of the outside world, as it were, could be brought by an independent, objective observer to that process.
So we can't accept a system of administrative segregation that's so dependent upon the opinion of one person, who happens to be the institutional head. That's a deprivation of freedom of a very considerable extent. If one looks at the Charter of Rights and Freedoms, which is one of our great measuring tools, it's the liberty even within the confines of an institution to have the ability to associate with other individuals. To remove that right for administrative reasons, with simply the opinion of one individual who happens to be the head of that particular institution, is not right.
We can't support that. I think we have to oppose that, which is why we propose these amendments. I'm sorry to hear that they're out of order. I'm sorry to hear that the government is not proposing this additional protection for individuals who can be afflicted by this and affected by life-altering circumstances in the very sad case of Ashley Smith. But there are many others who are incarcerated, who have significant mental health problems that are not being properly addressed in our institutions. This has been commented on many times. It's a very sad feature of our criminal justice system that so many people find their way into penitentiaries, instead of into places where they can get the proper level of treatment and necessary protection.
We have suicides occurring inside penitentiaries. This happens when people are isolated as well, because it does lead to depression, it does lead to a loss of self-worth. It does lead to significant emotional and psychological pressures. And it doesn't provide any kind of support that you can get from a fellow human being in times of emotional distress and trouble. All of these things are taken away from you by any form of segregation, whether it's administrative or disciplinary. Having the important protection of an objective person who is not a part of the institution, who has the proper experience to make these kinds of judgments, who can suggest reasonable alternatives, and in some cases can ensure that the head of the correctional institution gets the funds from the government to implement them.... It's one thing to say “I'm putting this person here because I have no alternative”....
If an independent adjudicator said, “There are reasonable measures. You may not have them at your institution, but you should”, then the institution can go to the government or to the Solicitor General and say, "Look, I'm being told that I can't use this administrative segregation because there are reasonable alternatives, but we don't have the money to implement them. Give us some more money. Make sure that this person is not being treated improperly because there's a lack of funds." That's the importance of this kind of alternative.
That's why we can't support this, because it precludes the kind of objective assessment that we believe is necessary.
10:40 a.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Harris.
I think you'll admit that we were more than flexible. You are over your ten minutes, even on your clock.
10:40 a.m.
NDP
Jack Harris NDP St. John's East, NL
My clock is over ten minutes by one minute and 20 seconds. But I think we did agree the other day that we'd be flexible. We didn't use the ten minutes for every clause, even the ones that we supported. So I think that's fair.
10:40 a.m.
Conservative
The Chair Conservative Dave MacKenzie
I see that in clauses 61 to 70 there are no amendments. I'm wondering if the committee would like to consider them as—
10:40 a.m.
NDP
Jack Harris NDP St. John's East, NL
Why don't we break now so we can consider over the break as to whether we need to speak to them or not?
10:55 a.m.
Conservative
The Chair Conservative Dave MacKenzie
We'll resume.
We're at clause 61. I had asked if we might consider clauses 61 through 70 together, if there would be consent to do this.
Mr. Harris.
10:55 a.m.
NDP
Jack Harris NDP St. John's East, NL
No. There may not be amendments to these, but the fact that we don't have amendments doesn't mean we may not wish to speak to them. If we're against them, vote against them, we also want to say the reasons why. So rather than group them.... If we support them, as we did with the sexual assault ones, I see grouping as being a reasonable approach.
11 a.m.
Conservative
11 a.m.
NDP
Jack Harris NDP St. John's East, NL
This is the one, of course, that gives meaning to the word “segregation”, the limitations that are placed there. It says the inmate “has the same rights and conditions”--but it doesn't mention privileges--“of confinement as other inmates, except for those that...can only be enjoyed in association with other inmates”. This is the problem with administrative segregation, because it does have this isolating fact.
Administrative segregation for reasons of security you can understand. Without the presence of an independent adjudicator, you do end up having the possibility of major dissociation by an individual, the inability to maintain their social equilibrium and all of those things. Although it's stated in a positive way, it does make it difficult for individuals who have mental health issues or other problems that.... It's not a question of enjoying someone else's society; in many cases it's a necessity to have social interaction.
One of the other problems that we have with this is if you look at the clause as a whole, particularly on page 36, the clause says: “An inmate in administrative segregation has the same rights and conditions of confinement as other inmates, except for those that...cannot be enjoyed due to limitations specific to the administrative segregation area...”.
Now, that gets us back to this whole necessity issue--you can't do this because we don't have facilities for that. We don't have a television in our administrative segregated area, so therefore you can't watch TV. Well, why don't you have a TV there? Isn't that a reasonable thing to have? Well, we simply don't have one. End of story.
Is that the law that we want to have in effect for someone who is placed in administrative segregation? Not only are they deprived of---