Evidence of meeting #136 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was inmates.
A recording is available from Parliament.
Liberal
The Chair Liberal John McKay
Colleagues, I'll call the meeting to order. I see that we're close enough to 3:30 to get started. It is the end of the session and I do see quorum, so we can proceed.
Before I call on our witnesses, I just thought I'd say to colleagues that I've received a letter from Lene Vagslid from the Standing Committee on Justice of the Norwegian Parliament, who thanks us for her recent visit, our contribution to the visit and the mutual update on the work that both of them are doing.
Liberal
The Chair Liberal John McKay
I think I would entertain a motion that way. In a heartbeat, I would even find it in order and with an insistence that the Parliament fund it. The alternative would be that you'd have to fund it, Mr. Picard.
With that, I want to welcome our witnesses. The John Howard Society is represented by Catherine Latimer and Lawrence Da Silva, both of whom are here, and the Canadian Association of Elizabeth Fry Societies is represented by Savannah Gentile and Alia Pierini.
I'll just call on you, in the order in which you're listed as witnesses, unless you have a better idea.
With that, the floor is yours, Ms. Latimer.
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.
Executive Director, John Howard Society of Canada
Do you want to introduce yourself, Lawrence?
Lawrence Da Silva Volunteer and Consultant, John Howard Society of Canada
Yes, I will.
My name is Lawrence Da Silva. I've just finished 19 straight years in federal custody. I've been out for two years and two months.
Where I would like to start is where we left off yesterday. I was watching this on TV.
This was given to me on short notice. I immediately became aware of this bill and then what's going on with this bill and how it will affect people. I decided to come here again, like I always do. I will run at these opportunities because men and women are at stake.
I can't speak for the women's prison, and I never will, but I will speak to the men's side of the prison. I would like to invite any questions that you guys posed yesterday to Ms. Anne Kelly or to the administration on whether those things are going to be functional, whether they be in relation to visits when you're in these areas or placed in non-contact areas after violence.... I'm your guy. Ask me those questions. I would encourage you to dive right in.
Liberal
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.
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.
Liberal
The Chair Liberal John McKay
I will have to cut you off there, and I apologize. Time is the killer around here.
Regional Advocate, Pacific, Canadian Association of Elizabeth Fry Societies
That's okay. I'm here for questions.
Liberal
The Chair Liberal John McKay
I'm sure members will want to ask questions, and I'm sure you'll be able to expand your points over that time. Again, I apologize.
Regional Advocate, Pacific, Canadian Association of Elizabeth Fry Societies
No problem.
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Mr. Chair, thank you very much.
I will be splitting my time with Ms. Damoff, which means I have three and a half minutes. I'd like to direct them to Ms. Latimer.
It's poignant, Ms. Latimer, that we're having this discussion about a month away from the 70th anniversary of the UN Universal Declaration of Human Rights. I'd like to take you back to the UN standard minimum rules that Ms. Gentile referred to, or the Mandela rules, as revised in 2015. Rule 44 of that document makes reference to the 22-hour threshold. It also brings in the language we're discussing, that being “meaningful human contact”. The UN does not define that, and probably quite deliberately. There's no UN definition of that, which sort of sets the stage for our discussion here. Presumably, it's left up to member states to find the definition that fits their social circumstances.
I'm most interested in the second paragraph of rule 45, which states, “The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.” I take it from your submissions that we shouldn't confine ourselves just to disabilities but to any pre-existing mental health conditions that would be exacerbated by any kind of solitary confinement, whichever label you want to put on that.
I'd like to give you my two minutes to give the committee a full appreciation of what you call the institutional “resistance” to what I believe is care, whether it's physical care or mental health care. How wide are those gaps? What percentage of inmates are suffering, at the point of entry, from addictions and mental and physical health problems, and to what extent are they being exacerbated in the current correctional system?
Executive Director, John Howard Society of Canada
I think prisons are not well designed to deal with mental health issues generally. Just to give you an idea, while I have interviewed very many men who have been in administrative segregation units, some of whom have suffered from mental health issues, many of them have told me that when they tell the guards or the correctional officers that they're feeling suicidal, the guards will say to them, “Go ahead and kill yourself. That'll be one less person for us to look after.” That is not, in anybody's book, a therapeutic response.
I would just ask Lawrence, who probably has been in administrative segregation units with people who have mental health issues, what he's observed.
Volunteer and Consultant, John Howard Society of Canada
Out of the 2,580 or so days I spent there throughout my 19 years in federal custody, I saw countless men disintegrate in front of my eyes within hours of placement in segregation—not able to take the banging, not able to take the administration's way of dealing with them, or not able to take the lack of POs or chaplains or imams being able to get to these areas. Seeing the dangers of that state were devastating.
I can't speak for the women's side, but I'm speaking for the human side. These people lose themselves fast.
Executive Director, John Howard Society of Canada
I know that Minister Goodale and his staff were talking about daily health care visits. There are daily visits from the health care staff now.
November 8th, 2018 / 3:55 p.m.
Volunteer and Consultant, John Howard Society of Canada
The daily visits consist of three medical parades that consist of, for instance, a 7 a.m. to 8:30 a.m. med parade, where they go and distribute medication to those areas. Most of—
Liberal
Sven Spengemann Liberal Mississauga—Lakeshore, ON
I'm sorry, but in fairness to my colleague, I will have to cut you off and hand this over to her. I'm sure she'll follow through on some of that.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you.
First, I want to thank you for being here.
