Public Safety Committee on Nov. 20th, 2018

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

It's probably no surprise, then, that when the minister was here and we asked him about costs, he had no idea what costs were and was unwilling to provide anything. Is that maybe why?

[Kim Pate]

I can't speak for the minister. I do know that one of the issues the Parliamentary Budget Officer raised when I asked for the updated costs was that they could not estimate what it would cost for maximum security for women. They're all in these segregated units, which are basically what the structured living environments would be. Their best guess, based on the information they could provide, was about half a million dollars per year, per woman.

When you take into account the number of indigenous women who are in those positions and also combine that with the parts of the bill that will actually make it more difficult for the progressive elements of the current legislation, the CCRA, to be implemented, I think we're likely to see costs greater than that.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

You mentioned the indigenous inmates. Do you think the committee should make it more than just ministerial discretion but actually entrench it in law that first nations communities be consulted on which prisoners are transferred to healing lodges?

[Kim Pate]

Well, in fact, if it's an institution run by an indigenous community, they are consulted. They are the decision-makers. If it's a federal penitentiary, then I think it should be the decision-making of the Correctional Service of Canada.

I think the manner in which the federal penitentiary for women that was set up on the Nekaneet reserve—it sounds like you're referring to that one, so let's get right to that—

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'm not referring to that one at all. I'm talking about the general scheme of how inmates are transferred to healing lodges and whether first nation communities should be consulted.

[Kim Pate]

They are if it's—

[The Chair, Liberal, John McKay]

I want to caution the witness and Mr. Motz that this is a bill about segregation, not healing lodges or maximum security or minimum security. There is some tangential relevance, but possibly you could focus in on the bill, please.

[Kim Pate]

Thank you for the reminder, Mr. Chair. I will focus in on the bill.

In the proposed legislation, one of the things that will happen is that agreements under sections 81 and 84, which is how healing lodges and agreements with indigenous communities are negotiated—so not federal penitentiaries, but community-run healing lodges—will actually be more limited.

As well, the manner in which the Correctional Service has implemented those has been to develop institutional beds, as opposed to something that the Auditor General spoke about today in the report that was released around conditional release, stating that in fact we need to see more individualized options closer to people's communities and more negotiations with individual communities. Some of that will be interfered with by this legislation, through the removal of the “community” in “indigenous community”, because that had not been fully implemented already, and I think that the scope of the legislation was fettered by the policy that Correctional Service of Canada developed.

[Noa Mendelsohn Aviv]

If I may jump in on that, you'll have submissions on that, both from Aboriginal Legal Services and from the Native Women's Association of Canada, and our organization endorses their positions.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

Senator, correctional officers have come out and said that they're deeply concerned about this legislation. Do you think they have a reason to have those concerns, based on how the legislation is currently drafted?

[Kim Pate]

I'm not familiar with all the details of their concerns. I think the concerns with a lack of consultation are there.

In our experience, there were two differing opinions from correctional officers when we were visiting the institutions with the humans rights committee. One was the official position, and one was often the position of those working on the ground—if you will, the boots on the ground—in the institutions. Many of them supported a more robust community involvement and less of the restrictive measures that potentially would be imposed by these intervention units without the oversight.

I would say that it depends on who you ask. I would encourage you to visit those institutions and seeing what's actually happening.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

Apparently my time is up, and I won't try to sneak in a “Ruby”.

[The Chair, Liberal, John McKay]

Oh, that was not nice.

Mr. Dubé, who never tries to sneak in anything, can go ahead for seven minutes.

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

I just get cut off.

Thank you, Mr. Chair.

I thank all three of you for being here.

I have a few questions on some of the language that is in, or not in, the legislation. I'll just throw them out there and ask for a response from both you, Senator, and our friends from the Canadian Civil Liberties Association.

The first is the absence of the term “least restrictive” that was in Bill C-56, which was also flawed legislation, but that's not what we're here to discuss.

The other piece of language that I wanted to hear from all three of you about is in proposed paragraph 32(a), which talks about “for security or other reasons”. That's something that I've asked multiple witnesses about because I have a concern that it continues the status quo of using this type of confinement to compensate for other systemic issues in our corrections system.

Can I hear all three of you—or both of you, however you divvy it up—on both of those two language issues in the legislation?

[Noa Mendelsohn Aviv]

I'll start with the first one.

“Least restrictive” is a constitutional standard. It's just impermissible under Canadian constitutional law to hold people in restrictive circumstances and in a restrictive status that is not necessary and that is not the least restrictive.

I think that's an important question and I think that the language should be there because upholding constitutional and charter rights needs to be done in legislation. If we're going to be taking away people's rights, we also need to ensure that the protections are set out in statute so that there is no confusion and the public knows that Parliament is doing its job properly and seriously and the Correctional Service knows as well.

[Kim Pate]

I would agree.

I've provided charts; I haven't done the submission in the usual form, but I thought it might be useful for the committee. I have them in French and English and I'm happy to circulate them so that you can actually see what the current legislation is, what's been proposed, and the commentary. One of the issues is exactly what Ms. Mendelsohn has said.

In addition, regarding your very astute point about the basket category, as we often refer to them, this basically leaves it wide open for the discretion of the Correctional Service to determine any other behaviour or any other circumstance under which they would require someone to be separated.

I made a note about this next point, and pardon my mental pause at the beginning. You heard about the Ontario legislation, although what you weren't told is that the initial iteration of that legislation actually proposed that at least four prisons should commence without segregation units, so committed were those who were involved in the process that they could be run that way. It was actually some political pressure that came to bear that caused that not to happen.

I think Canada has long been a leader in human rights, and this is an area where we could be leading very clearly. We shouldn't be looking at UN standards as the ceiling; we should be looking at them as the floor.

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

Could I just backtrack to the “least restrictive” piece, for my own benefit and for that of colleagues on the record as well?

If I'm not mistaken, that language was at one point in the CCRA and was then removed. I'm only asking because I know sometimes we hear the argument that because it's a constitutional obligation, it doesn't need to be in the legislation because it's de facto protected. However, it was for a very long time part of the legislation until relatively recently, if I'm not mistaken.

[Kim Pate]

That's correct.

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

Thank you.

The other piece I wanted to ask about, Senator Pate, is the experience you talked about in visiting institutions where they're already being referred to colloquially in not quite the same way, but close enough to the same way that it is cause for wondering if it is a real change or just a cosmetic change.

Again I'd like to hear from all our witnesses on this piece. We've been told at the technical briefing—and the commissioner and the minister didn't deny this when I asked them, and it was brought up again by the correctional investigator—about being able to designate existing areas as SIUs. This basically means that structurally they would be identical in everything but name, and some of the provisions in this bill may or may not be effective.

I'm wondering what your thoughts are on that.

[Noa Mendelsohn Aviv]

Over and above areas designated as SIU, as I mentioned in my remarks, in any situation in which a person is held in extreme isolation—whether it's maximum security, medical observation, a disability, or whatever the reason is—that isolation is causing the harms to human beings that led two judges in this country to say that this regime cannot stand because it is unconstitutional and it violates fundamental rights.

Therefore, not only should we be concerned about designating areas as SIUs; we should also be concerned about the conditions in which people are kept. That's why any new legislation needs to define that being held in situations of isolation is the issue, and that's where the protections have to be placed.

[Kim Pate]

Even more stringently than that, those judges made those decisions without going into the units. In the visits we've been doing with the human rights committee, as we've gone into the maximum security units, every senator has recognized them as segregated conditions, without any of us saying it. It is from witnessing what they have access to, what they don't have access to, and what the meaningful intervention or meaningful contact is, which is negligible at best.

The reality is that people are living with two, three or sometimes four other people in common spaces that are smaller than the area of this—

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

I'm sorry to interrupt. I think I'm on my last 30 seconds, if that.

[The Chair, Liberal, John McKay]

You've got a minute.

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

I'd be remiss if I didn't ask a question to the Canadian Civil Liberties Association while you are here.

Are you not concerned that on the one hand the government is saying that this legislation responds to the court decisions, both in Ontario and B.C., but on the other hand, it's being appealed? I'm not sure if the Ontario one is being appealed, but I know the B.C. one is.

[Noa Mendelsohn Aviv]

The government did not appeal the decision that ruled it unconstitutional because of the lack of independent review, so that decision stands. Our organization appealed all the grounds for which the court did not find it unconstitutional, so that part is continuing.

To answer your question, and I tried to address it in my remarks, this legislation doesn't answer those grounds of unconstitutionality that we argued in our case and that B.C. argued in their case and that the judges found. It doesn't address them. It has been 12 months, almost to the day, since the Ontario decision was issued. One way or the other, this committee is out of time, but that doesn't make this bill any good.