Public Safety Committee on Nov. 20th, 2018

[The Chair, Liberal, John McKay]

Colleagues, I call the meeting to order.

I see quorum. We're already under some time constraints.

I appreciate Mr. Zinger's patience. We welcome both you and Marie-France Kingsley to the committee.

Both of you are very familiar witnesses, so I don't need to give any instruction. We look forward to what you have to say.

[Dr. Ivan Zinger, Correctional Investigator of Canada, Office of the Correctional Investigator of Canada]

Good afternoon.

Thank you for the invitation to appear before your committee. It is a pleasure to be here.

I present to you Marie-France Kingsley, executive director of the office. She worked for many years as director of investigations and has a lot of expertise in operations.

As correctional investigator, I welcome the intent of Bill C-83, which proposes to eliminate the use of solitary confinement as defined by the United Nations in the newly revised Nelson Mandela rules—that is, less than 22 hours in cell. I am concerned, however, that this bill as it stands may not lead to the intended and laudable outcome and may even result in an increase in the use of restrictive confinement. lndeed, the structured intervention units, or SIUs, which would replace administrative and disciplinary segregation as we know it may simply become “segregation lite”.

I am specifically concerned that the bill fails to provide for independent or external oversight of SIU placements and eschews the need for procedural safeguards of any kind. Eliminating solitary confinement is one thing, but replacing it with a regime that imposes restrictions on retained rights and liberties with little regard for due process and administrative principles is inconsistent with the Corrections and Conditional Release Act as well as the charter.

Whenever rights and liberties are deprived, there is a corresponding obligation to provide safeguards proportionate to the degree of the deprivation. SIUs are, by design and intent, restrictive confinement environments, even if they allow for more out-of-cell time than current administrative segregation. The simple fact of the matter is that an inmate housed in an SIU would have not the same rights as other inmates or be able to exercise those rights, due to what the bill itself concedes are “limitations specific to the structured intervention unit or security requirements”. ln effect, Bill C-83 proposes a softer version of segregation without any of the constitutional protections. The bill is uniformly short on specifics and places too much discretion and trust in correctional authorities to replace segregation with an unproven and not well-conceived correctional model.

Before I go further into these concerns, I would like to first acknowledge some progressive and positive aspects of the proposed legislation.

I am pleased to see that Bill C-83 would entrench in legislation the clinical independence and autonomy of prison health care professionals. This measure would effectively mean that clinical decisions could not be overruled or ignored by non-medical prison staff.

The bill also proposes to enshrine access to patient advocacy services in federal corrections. Such a measure would help ensure inmate patients understand the implications of their health care decisions and fully exercise their right to free and informed consent. These measures are consistent with evolving international standards in the care and treatment of people in custody, including the revised Mandela rules, and are responsive to addressing outstanding recommendations from the coroner's inquest into the preventable death of Ashley Smith.

I am also pleased that the bill would obligate the service to consider systemic and background factors that contribute to the overrepresentation of indigenous persons in the criminal justice system. This provision reaffirms and codifies the Supreme Court of Canada decision in Gladue, which already requires CSC decision-makers to take into consideration the unique circumstances of indigenous offenders whenever their rights and liberties are at stake.

Returning to the bill's intent, it is instructive to note that the grounds for SIU placement would remain virtually identical to current segregation law. ln other words, an inmate could be placed in an SIU if the warden believes, on reasonable grounds, that he or she jeopardizes their own safety or that of any other person, or the security of the institution.

It's important to note that these are the two most-used grounds for placement in administrative segregation. Today, there are 380 segregated inmates in CSC facilities. Just under half of the segregated population is held there voluntarily, meaning they seek out or request to be placed in segregation out of fear for their own safety and well-being.

The proposed legislation has nothing to say about how an SIU, program or intervention would deal with a population that voluntarily requests segregation, a situation which effectively represents a failure of the Correctional Service of Canada to provide safe, secure and humane custody for inmates regardless of one's crimes or vulnerability. It is also not clear how the proposed legislation would deal with the disproportionate number of indigenous people, who currently make up 43% of the segregation population.

It's been said that SIUs are different from solitary confinement because inmates would have four hours out of cell each day, which is twice as much as current segregation practice allows. While four hours minimum out-of-cell time is an improvement, 20 hours maximum inside a cell is still a lot of time to be locked up.

I commend the effort to comply with the Mandela rules in this regard; however, it's important to be reminded that these are minimum standards for the preservation of human dignity and sanity behind bars. Surely Canada is not resigned to simply meeting minimum standards. As a recognized world leader, we have to get this legislation right, and for the right reason.

Simply increasing the out-of-cell hours that inmates could avail themselves of does not mean that Canada will have eliminated all the harm associated with restrictive confinement. Any potential gain in time out of cell is potentially compromised by a requirement that allows CSC to conduct a routine strip search without individualized suspicion whenever an inmate is entering or leaving the SIU. In effect, this means that an inmate residing in an SIU could be strip-searched multiple times in a day, which could prove a major disincentive to participating in out-of-cell activities.

The bill intends to provide inmates placed in SIUs with meaningful human contact. That is the same wording and intent behind the revised Mandela rules for reforming the solitary confinement regime worldwide. Forgive my skepticism, but it is not clear how the objectives will be met by this particular piece of legislation. Since we can only assume that SIU environments will be physically similar to existing segregation units—because we have not been provided with information that would suggest otherwise—we have to ask whether these environments will be conducive to meeting the test of meaningful human contact, much less the effective delivery of programs and services.

We know that current segregation units are not conducive to group learning. Indeed, segregation interventions, insofar as they can be called that, are typically delivered in-cell, behind a door, through a food slot or in small common spaces located in or near segregation ranges. Needless to say, these spaces are hardly conducive to effective delivery of therapeutic interventions.

It is important to note that the bill proposes to eliminate both administrative and disciplinary segregation. I have previously pointed out that disciplinary segregation is rarely used in federal corrections, largely because it is considered too much of an administrative burden. Because of the liberties at stake, disciplinary segregation provides for significant procedural safeguards, including sharing information with offenders, providing access to legal representation, holding a hearing before an external independent chairperson and meeting the high burden of proof.

Over time, administrative segregation became the default option, used to circumvent the due process requirement of a formal disciplinary system. Administrative segregation placements are simply easier, quicker and more responsive in serving the same population management ends: removing an individual who poses a risk to oneself or others or who jeopardizes the security of an institution.

Let me just conclude.

In terms of how I see this bill moving forward, I would say that at the very least, adequate procedural safeguards and some kind of independent monitoring and oversight of SIU placement need to be incorporated. Otherwise, the commendable intention of this bill cannot be met.

I will be happy to answer any of your questions, and I would ask if the chair could enter the complete text of these remarks into the record, if that's possible.

[The Chair, Liberal, John McKay]

Oh, I think those are already entered in.

[Dr. Ivan Zinger]

Perfect. Thank you.

[The Chair, Liberal, John McKay]

Thank you very much.

Ms. Dabrusin, you have seven minutes, please.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you. I appreciate that you came here. It has been interesting to hear your perspective. I've read a little bit about it in some newspaper articles.

I wanted to start where you ended, which was that at the very least you need the right to procedural safeguards. You talked about that.

There are two parts to that, as I see it: the oversight piece and then what you need for proper oversight, the mechanisms. If I could start at the most basic part, the decision to place a person in an SIU, would you find it helpful if there were a requirement that there would be written reasons provided for why a person was placed into an SIU, as well as what other options had been considered as part of those reasons? Would that be helpful to the oversight process?

[Dr. Ivan Zinger]

Part of the issue, and it's a very well-known principle of administrative law, is that you have to match what is potentially at stake, which is a loss of liberty or freedom, to the degree of fairness.

If you look at disciplinary segregation, for example, which this bill would eliminate, you have a really odd situation, because you would have the highest level of due process—which is a hearing before an ICP, an independent chairperson; access to a lawyer; the ability to cross-examine witnesses; and a requirement for a high burden of proof—yet there's no significant loss of liberties, so on that side, it is pretty peculiar that you would maintain the ICP for disciplinary purposes when there's nothing that can be lost, since 30 days in segregation can no longer be imposed by the ICP.

Therefore, I think there's a really good opportunity here to maybe use the pool of ICPs to provide the oversight on something that is “segregation lite”. You still need that due process, and a high level, if you want those SIUs to flourish across the entire system, and then have all maximum security and significant portions of medium security institutions basically become SIUs. You need that independence to validate decisions made by a warden, and those decisions, as you said, if they are valid, could then be validated by an external oversight mechanism.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Sure. I was actually even breaking it down to the first piece, which is when there is a transfer, there would be a requirement to have the written reasons provided, as well as a listing of what other options had been considered. A copy would be provided to the inmate, multiple copies. I believe that there was a similar type of policy that was adopted. Was it in Ontario? It wasn't actually passed into law, but it was part of the legislation that was proposed there.

I'm just trying to think about some concrete amendments.

[Dr. Ivan Zinger]

Yes, and I think you're correct, because in terms of due process, you need to know what the reasons and the grounds are for your placement. A written reason is the basic first step to due process, but eventually, down the road—and let's say you would do it at 30 days—you need somebody from outside to validate the decision for the placement, those reasons, and—

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Sure. I wasn't actually saying that this was the end place; I was just trying to pick that one little piece to begin.

One other question I had is on the issue of a cap on the number of days. We had someone from the John Howard Society who said that maybe a hard cap isn't possible in some circumstances, and that has come up in some articles.

Whether or not Mandela rules are what are at issue here, would it be helpful...? I read in a Toronto Star editorial that having a cap would be helpful just because it would force people to think about the other alternatives, to really go through the alternatives, and I believe that somewhere else it said that for the mental health of an inmate, it might be helpful to know there's at least a presumed cap with perhaps a policy that would enable it to be looked at. That was the type of wording that was in Bill C-56 as well, a presumed cap that could be extended if there were reasons.

Is it helpful to have a presumed cap?

[Dr. Ivan Zinger]

I think the clever part of Bill C-56 was the presumption of release after a certain period of time. Maybe that's when you would kick in some form of independent adjudication. Right now, with the way it's written, it's as soon as possible, and it's all internal. There's nothing there—it's all internal to the service, and we come up with a regime that has less due process than the previous regime did, and it has too much due process on the disciplinary side, arguably.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

I don't have a lot more time, but you've alluded to it a little bit, and I'd like you to provide better detail if you could. What oversight process would work? There are different ideas as to what would be the trigger date for an oversight review date. If I'm referring to the Ontario legislation, which I think was called “correctional services act, 2018”—it didn't get royal assent—it suggested, I believe, that five days after placement, there would be a trigger for external review. Different versions have been put forth.

What would you think? If you were looking at the number of days, what would be the trigger and where would it go?

[Dr. Ivan Zinger]

My view is that as it currently stands, there is insufficient due process, because there's no oversight in the current scheme. The issue becomes one of identifying where it is salvageable, if you're using this legislation to try to bring in some external oversight?

I would say, given that you are providing at a minimum—and I'll say it's a minimum standard—four hours outside the cell, you could see that something like 30 days might be sufficient. It's very much an unproven territory, because we have strict guidelines with respect to the Mandela rules around at least 22 hours in the cell, with a great body of literature suggesting that is very harmful.

We probably know a little bit less about those restrictive environments, but the only thing I can tell you is that 20 hours in a cell is an awfully long time, and there has to be some oversight so that this does not become the norm for managing challenging offenders across the system.

[The Chair, Liberal, John McKay]

Thank you, Ms. Dabrusin.

Mr. Motz, go ahead for seven minutes, please.

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

Thank you, Chair.

Thank you, witnesses, for being here.

Mr. Zinger, do you support the abolishment of segregation, or is it a necessary measure to protect inmates, guards and now health professionals inside prisons?

[Dr. Ivan Zinger]

I think certainly solitary confinement as defined by the UN Mandela rules should be prohibited, absolutely. It's weird that the legislation doesn't actually say that. I think it should be in the legislation that solitary confinement, as defined by the Nelson Mandela rules, should be abolished in all federal corrections.

The issue is whether you need restrictive confinement to deal with certain individuals. I think the answer is yes. As I say, I'm still surprised that with regard to the disciplinary segregation, there are no alternatives. Now we can have a disciplinary court held by independent people, which can only impose fines and maybe some loss of privileges, and in that regard I think the Union of Canadian Correctional Officers has said that even here perhaps we are missing something in this equation.

You do need, if there are big transgressions in the penitentiary system, some consequences. I would suggest that in order to preserve the ICPs, you may want to look at restrictive confinement of up to four hours—defined as four hours—for up to 30 days as a consequence.

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

You mentioned the correctional officers. Do you support the testimony they gave here at committee suggesting that it would take significant new resources to meet the requirements of this legislation? Is that something you would agree with?

[Dr. Ivan Zinger]

What I would agree with is that there has been very little detail provided by the Correctional Service or the government on how this is going to be implemented. If you read the proposed bill as it's currently written, there's a lot of stuff that seems to be pushed to regulation, as prescribed by regulations. We don't know what those regulations would look like. I think that's why there's a lot of uneasiness about this particular piece of legislation. We don't know how it's going to be rolled out.

From experience, I can tell you that it's always in the implementation where there's a high risk of not complying with the intent of you guys, the intent of the legislature.

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

Keeping with that comment, we heard from correctional officers and prisoner advocates, such as the John Howard Society and the Elizabeth Fry Society, that they view this as bad legislation. Do you support this assessment from the union and from those two prisoner advocacy groups?

[Dr. Ivan Zinger]

Part of my remarks talked about it. I think there's been a lack of consultation on this one, and I think there is some stuff in the legislation that is unclear. For example, the whole notion that disciplinary segregation would remain as the system in place, but with no hard consequences, suggests to me that it was ill-conceived. All the consultations seem to have been done internally. To my knowledge, there have been no consultations with external stakeholders. I think that's why you end up with something that is perhaps not fully thought out. I'll say that.

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

You mentioned the internal CSC aspect of it, that it looks as if the consultation was just done in-house.

On page 40 of your annual report, you make a note that the case summary from the Saskatchewan riot varies significantly from the national board investigation of that exact same incident. It's a summarization. It seems odd to me that the national board investigation report is going to vary from Correctional Service Canada's report. It just seem odd. Does that concern you?

I have a couple of things. It's concerning to me to read what you say.

My questions are as follows. Given your knowledge of what goes on, as the investigator, who would authorize the summary of a report to be different from the actual report? That's one.

On this suggestion from you that maybe the credibility of CSC is now called into question, does that, then, give rise to...? You just said that the devil is in the detail of the legislation. We're supposed to blindly pass a bill that has so much left to regulations that we don't know what we're going to get.

[Dr. Ivan Zinger]

With respect to the Saskatchewan riot, certainly I'm very.... I've made the entire report a question of openness, transparency and accountability with the service. I think there is a lot of room to move forward.

I was actually quite pleased with the mandate letter the minister issued to the commissioner, which basically makes clear the direction the service should go, endorsing those values of openness, transparency and accountability. This is why, if I were the commissioner, I would welcome external oversight and validation of decisions at the institution by, for example, independent adjudication to—

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

True. Your previous comment, though, sir—

[Dr. Ivan Zinger]

If she ever wants to implement that mandate letter, she's going to need some help—

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

Of course she is.