Evidence of meeting #137 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 actually.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ivan Zinger  Correctional Investigator of Canada, Office of the Correctional Investigator of Canada
Jim Eglinski  Yellowhead, CPC
Marie-France Kingsley  Executive Director, Office of the Correctional Investigator of Canada
Kim Pate  Senator, Ontario, ISG
Noa Mendelsohn Aviv  Director, Equality Program, Canadian Civil Liberties Association
Cara Zwibel  Director, Fundamental Freedoms Program, Canadian Civil Liberties Association
Ruby Sahota  Brampton North, Lib.

November 20th, 2018 / 4:45 p.m.

Noa Mendelsohn Aviv Director, Equality Program, Canadian Civil Liberties Association

I'll be going first. Cara will come in a little bit later.

Good afternoon, Mr. Chair and members.

When we raise concerns about solitary confinement, this is not an abstract discussion. We are expressing concern about the harms caused to human beings by the practice of extreme isolation.

These harms are well established by experts and were recognized by courts. Associate Chief Justice Marrocco found that the effect of isolation and prolonged isolation include—I won't even give you the whole list—hopelessness, depression, confusion, hallucinations and delusions, re-traumatizing of women and eroding of their self-worth, rage, loss of control, self-mutilation, declines in mental functioning, a sense of impending emotional breakdown and a vicious cycle in which a prisoner's extreme behaviour and acting-out leads to an increase in physical altercations with prison staff—frustrating them both, and of course leading to further isolation.

Fifteen consecutive days of isolation poses a serious risk, the court found, of permanent, observable, negative mental health effects. It's because of these harms to people that courts in B.C. and Ontario found the current administrative segregation regime to be unconstitutional and have ordered change. In order for Canada to uphold the law—as it is its duty to do—and obey the court orders, a new law must prohibit indefinite or prolonged solitary confinement, however it's called, and it should not exceed 15 days. It should prohibit placing people with mental illness and/or disabilities in solitary, and it should ensure the use of solitary doesn't discriminate against indigenous persons, as it currently does.

Bill C-83 does not include these protections.

Both Ontario and B.C. courts noted the absence of independent oversight and independent review. This is critically necessary, because a strong, external independent review process could help build public trust and ensure that prisons are obeying the law, that inmates are not being placed in isolation unless in absolutely necessary and exceptional circumstances, that no one is held in prolonged solitary, that indigenous individuals receive sensitive and culturally appropriate programming, and that a person who is mentally decompensating receives treatment rather than being left alone to deteriorate.

Any new law should also prohibit solitary for people under the age of 21 and people in need of protection. There is no justification to impose this status, whatever it's called, on young and vulnerable inmates.

The costs of isolation are not just to the individual but to correctional staff who have to manage individuals who are losing their grip on reality or their ability to control their reactions. It has a cost to our society, because people complete their sentences and are going to be reintegrated. The rehabilitation of inmates so that they are able to reintegrate requires an investment of resources in our correctional system. We need clear legislative protections, and this investment of resources is critical to making our society in Canada safer. As complex as it may appear, there are significant tools available for reform—real, implemented, effective alternatives as well as countless recommendations, models, reports and legislative blueprints. My colleague Cara will speak to some of them in a moment.

Justice Arbour's report is over 20 years old. The Ashley Smith jury inquest, with its 104 recommendations, is five years old. Two commissioned expert reports on segregation and corrections from Ontario are extremely recent.

I'll take a minute to talk about the U.K. prison system, which is up and running. They have all but eliminated solitary. Individuals there needing protection or supervision are placed in smaller units appropriate to their needs, to their population, and only the most exceptional of cases are kept in the special closed-supervision units. Of a prison population of roughly 85,000, approximately 60 men and zero women are held in this special unit.

As Senator Pate was saying, if we want to deal with extreme isolation of inmates, changing the sign will not create the change or provide sufficient relief to people held alone in tiny cells with mesh on the windows and a tiny concrete yard. What defines the experience of solitary is extreme isolation, which causes the harms discussed above. This bill, or this act, needs to be amended to say that any protections provided must be for anybody held in those circumstances of isolation. “Solitary” needs to be defined in the law.

Of course, any relief for people in those circumstances is better than no relief, including time out of cell, including human contact, but I note that there are enormous exceptions under proposed section 37, each of which is subject to possible overuse or misuse, and documentation and oversight are critically necessary to ensure that does not happen.

In addition, the broad language of proposed paragraph 37(1)(c) could exclude a huge number of people who would therefore be held in extreme isolation without four hours out of cell or two hours of human contact.

In any event, isolation is still practised and it would still be the order of the day. If some people believe that administrative segregation is necessary as a measure of last resort to be used in exceptional circumstances—say in the event of a riot—this bill is doing the very opposite. It is institutionalizing and attempting to justify isolation as an ordinary prison practice. Canada can do better.

It is a far cry from the kind of prison reform that we need and that we deserve for our safety and for our well-being. We need it as well because not only will it reduce harms, financial and mental, to inmates and to correctional staff, but it will be better for our society as well.

I'll add one more word before I turn it over to Cara.

For meaningful reform, which Canada needs, there has to be a meaningful process. None of the organizations that challenged this law successfully in court were invited to consult on the bill before it was introduced. I note with strong objection the absence of key indigenous rights groups from these committee hearings, including Aboriginal Legal Services and the Native Women's Association of Canada—both of whom asked to appear—despite the fact that indigenous individuals are overrepresented in solitary and that this bill has a section dedicated to indigenous offenders.

People's mental health is at stake. People's lives are at stake. This is no time for a slapdash attempt at a band-aid solution. I echo Senator Pate's proposal that there be a repeal of the bill and a proper effort at reform. Canada has had plenty of time and needs to do this properly.

I turn it over now to my colleague Cara to share some remarks on recent work in Ontario and possible alternatives.

4:55 p.m.

Liberal

The Chair Liberal John McKay

Welcome, Cara. You have approximately two and a half minutes left out of the 10 minutes.

4:55 p.m.

Cara Zwibel Director, Fundamental Freedoms Program, Canadian Civil Liberties Association

Thank you.

I'm going to try to talk a little about the model that the federal government could have considered as part of a truly meaningful effort to transform corrections and address some of the constitutional violations that were identified by the courts in Ontario and B.C. that have examined this issue closely.

The Province of Ontario has recently undertaken a significant amount of work looking at the state of corrections in the province and examining the practice of solitary confinement in particular. The province benefited from two thorough, independent reviews conducted by a team led by Howard Sapers, the former federal correctional investigator and a leading expert in criminology and corrections. Even recognizing the differences between provincial and federal institutions and the inmates they house, the recommendations made in the Sapers report could certainly have served as a strong foundation for reform at the federal level. They are not reflected in the bill that this committee is considering.

Indeed, Ontario passed legislation that incorporated many of Mr. Sapers' recommendations, and that legislation explicitly prohibits the use of segregation for certain categories of inmates, namely those who are pregnant or have recently given birth, those who are chronically self-harming or suicidal, those with a significant developmental disability, those with a significant mobility impairment, and those who require medical observation.

The legislation in Ontario also put in place hard caps on the amount of time an inmate can spend in segregation: 15 days at a time, and no more than 60 days in a 365-day period. Segregation placements require regular and independent reviews.

The bill this committee is examining contains none of those provisions, and in our view those changes constitute the bare minimum required to address the charter violation inherent in the existing scheme.

The Ontario legislation also makes it clear that a visit from the institutional head or from a health care practitioner that takes place through a meal slot does not meet the legislative requirements for visits from these people. Federal legislation should similarly reflect the fact that communication through a meal slot does not constitute meaningful human contact, just as it specified that a shower doesn't constitute time out of cell.

It should also make clear that segregation is a last resort. It should require documentation of other options that were exhausted before a decision to place an inmate in segregation was made, and require documentation of efforts made to engage an inmate in meaningful human contact.

To conclude, Bill C-83 is not the deep-seated reform that is required, and simple amendments to echo what my colleague and Senator Pate have said will not bring it into compliance with the charter. What is constitutionally required, in our view, is an end to indefinite solitary confinement and an end to its use for those with serious mental illness and for other particularly vulnerable groups.

4:55 p.m.

Liberal

The Chair Liberal John McKay

Thank you, Ms. Zwibel.

Before we go to Ms. Sahota for seven minutes, I'll say that it's my intention to end the meeting at 5:35 and then adjourn and re-empanel in camera. I have some decisions that need to be made by the committee about a number of issues going forward sooner rather than later.

With colleagues' consent, we will run another five minutes over our normal period of time.

Ms. Sahota, you have seven minutes.

5 p.m.

Ruby Sahota Brampton North, Lib.

Thank you, Senator.

Thank you, everyone, for coming today.

We've been hearing about oversight again and again from various witnesses, and from the previous panel we got an idea of what they think and who should be in charge of providing that oversight. I was wondering if I could get your opinions on that aspect as well.

5 p.m.

Senator, Ontario, ISG

Kim Pate

Following the events at the Prison for Women, Louise Arbour recommended judicial oversight. I think every move since then has reinforced why that is the best model and the model that should be implemented, because every measure to produce so-called independent bodies to come in, whether it's for charges within the prisons and the independent chairpersons, is very dependent on the individual before whom the prisoners and the staff appear, and the reality is that in most cases they have become further arms of the government body.

You may have a really excellent independent chair—for instance, Marie-Claude Landry, who was head of the independent chairs in Quebec. Everybody recognized, while she was head of that process, that it had a very robust—

5 p.m.

Brampton North, Lib.

Ruby Sahota

When you say “judicial oversight”, how do you envision that? Is that a quasi-judicial tribunal or actually going to the courtrooms? We know how backlogged they are, so how would this work?

5 p.m.

Senator, Ontario, ISG

Kim Pate

I would say that it could be. It would be going to the court if in fact you have a robust provision that says no segregation, so if, for some reason, the Correctional Service decides they have to do some kind of separation, they should have to establish that.

Right now all that would be required with this bill, with respect, in many of the mechanisms being proposed is that the Correctional Service of Canada would have to develop a case record, and what we know and what we saw most clearly through the Ashley Smith inquest is that those case records are developed largely to benefit those who are recording them.

Ashley Smith, for instance, was described as out of control and violent all the time, and yet when we actually saw the videotape of the evidence and cross-examined correctional officers, all of them described that they knew that information from what they had read about her, not from their actual experience with her. It reinforces that we need to actually pull people out of that process.

Similarly, it sounds wonderful to have external oversight of health care, for instance, through people responding to health authorities within the prison setting, but in every instance where that has been implemented—I mentioned the regional psychiatric centre, and there are a number of contexts in the youth system where that approach has been implemented—if the people are then embedded in the prisons and prisoners are not taken out, as clause 29 would allow you to recommend and require be done, and are not taken directly out of the prison into an externally administered service rather than having external people coming into it, then you see a far less robust oversight process. Instead, what you see when they are in the system is what I repeatedly had happen, whether it's a youth system or the regional psychiatric centre: the head of therapy coming to people like me saying that this person needs an advocate.

Many lawyers and judges don't even know that exists, because while they're looking at the legislation and they're hearing from individuals, they're not necessarily seeing first-hand what the conditions of confinement are.

5 p.m.

Brampton North, Lib.

Ruby Sahota

We had a witness before us here who had been in segregation for several years and advocated strongly against removing it, because there is a need for it, especially in men's prisons. He said there was a need due to many different reasons: safety, mental illness and all the things to which you are referring.

This process you see is to have judicial oversight. In the interim before you get that decision, how do you foresee them being able to deal with those types of situations internally and safely? You mentioned also that the proposals you bring today would reduce harm to correctional officers and inmates. Can you describe a little bit about how you think we can—

5 p.m.

Senator, Ontario, ISG

Kim Pate

I'm sorry to interrupt.

Prior to my appointment, in the job I was in previously we had recommended and offered an approach to Correctional Service of Canada in the process of all of these court cases being developed.

At that time the Elizabeth Fry Society was the only organization recommending no segregation at all, and certainly not for women, and not for those with mental health issues. Many other groups are now on side with that, but at the time part of what we had done over the period of 20 or 25 years was we had worked with individuals and started to develop advocacy options within the prison, working with the institution—and, as you probably know, there are teams that go in once a month—and actually starting to break down those barriers. We had recommended setting up a team to look at every individual that the Correctional Service of Canada was considering segregating, and then we worked on a plan to assist them that involved a responsibility of community actors, a responsibility of legal counsel sometimes, a responsibility of the prison.

They refused to set up that kind of initiative, and in fact part of the reason so many people are saying we don't need it for women is that some of those measures toward that end were actually incredibly effective, and so many people, including those working within the Correctional Service, recognized that we actually don't need that process.

As for going into the men's prisons again and starting to have those conversations with men, I don't think we're there yet. I would be remiss if I actually said that we were, but the same arguments that you're hearing from men and that you heard from the witness here are what I heard from women when we first started that process. That's why we're starting to work with the men and going in and meeting with the lifers and the brotherhood, the indigenous men's groups, to start to deconstruct that as well in those contexts.

5 p.m.

Brampton North, Lib.

Ruby Sahota

I'd like to allow you an opportunity as well.

5:05 p.m.

Director, Equality Program, Canadian Civil Liberties Association

Noa Mendelsohn Aviv

All I want to add.... There isn't a lot to add to that, but I think we need to understand that the way our corrections system works is not the only way it has to work, and that's why my colleague and I keep talking about a need for deep-seated reform. We look at some of the measures that are discussed by Professor Andrew Coyle, who is an international expert who testified on our behalf at the Ashley Smith inquest. When asked by the jury at that inquest about alternatives to segregation, he didn't talk about somebody who was at the point of rage and loss of control and decompensation; he started from the very first night that a person arrives at a penitentiary, frightened and not sure, but provided with peer support and peer advocacy and the kinds of programming and rehabilitation that can be offered in a reform setting.

Therefore, similar in some ways to what Senator Pate is saying, we'd say the reform has to be at the institutional level.

5:05 p.m.

Brampton North, Lib.

Ruby Sahota

If those resources are provided, do you think there can be reform, even through—

5:05 p.m.

Director, Equality Program, Canadian Civil Liberties Association

Noa Mendelsohn Aviv

Absolutely. I think that's part of how the U.K. has been able to all but eliminate these exceptional and difficult circumstances. Then they don't have to isolate those 60 people.

5:05 p.m.

Liberal

The Chair Liberal John McKay

We'll have to leave it there.

It's amazing to see the creativity of members in extending their time.

5:05 p.m.

Voices

Oh, oh!

5:05 p.m.

Liberal

The Chair Liberal John McKay

It would be helpful if the witnesses would look at the chair from time to time so that I don't have to rudely interrupt but just interrupt.

Next is Mr. Motz, who has never been rudely interrupted.

5:05 p.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Oh, never. Thank you, Chair.

Thank you, Senator, and the Civil Liberties Association group.

Senator, you have previously suggested, and you suggested today, that we need to scrap this legislation and basically start over. Did the minister consult with you on this legislation, or on the previous bill, Bill C-56?

5:05 p.m.

Senator, Ontario, ISG

Kim Pate

No, he did not, nor did the Correctional Service of Canada.

5:05 p.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

There is confusion over costs, as we heard from Dr. Zinger initially and from witnesses previously. There was confusion over the implementation of the bill. We don't understand what it's going to look like yet. CSC has said that some prisons might get body scanners. Others will have to use ion scanners. Questions linger as to how the structured intervention units will be reconfigured within the current infrastructure inventory of CSC. A lot of things are still up in the air.

Would you agree that having the implementation costs ahead of time is critical to knowing how this legislation will actually impact prisoners and correctional officers and the like?

5:05 p.m.

Senator, Ontario, ISG

Kim Pate

Of course it's important to know. I think we actually do have some information on costs. The Parliamentary Budget Officer updated the 2010 figures that the former PBO came up with. From the costing they were able to find so far, we can see that the structured living environments in prisons for women, for instance, were costed at around $533,000 per year, per woman.

Now, if that's the cost of the structured living environments now, we can easily say that this will likely be the cost of these new units. For men, it was costed at somewhere between $300,000 and $600,000. That's to my recollection, but I could—

5:10 p.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

Just for clarity, that is per inmate, per year, for segregation.

5:10 p.m.

Senator, Ontario, ISG

Kim Pate

That's what it is currently, yes, for women.

5:10 p.m.

Conservative

Glen Motz Conservative Medicine Hat—Cardston—Warner, AB

That was in 2010.

5:10 p.m.

Senator, Ontario, ISG

Kim Pate

No, this was last year. I asked for an update in 2018. This is the update.