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.