Evidence of meeting #139 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 needs.
A recording is available from Parliament.
4:35 p.m.
Prof. Debra Parkes
You can hear me now. I was just calling my tech guy, but I didn't do anything.
Should we let Jonathan go ahead?
4:35 p.m.
Liberal
The Chair Liberal John McKay
No, I'm afraid we'll lose you again, so we'll go with you first.
Sorry, Mr. Rudin.
4:35 p.m.
Prof. Debra Parkes
Thank you for the opportunity to speak to you today.
I've been researching issues associated with imprisonment in Canada for more than 20 years. My research focuses on charter rights issues in imprisonment, including solitary confinement, segregation, oversight and accountability of corrections, and on the imprisonment of women in particular.
In 2013 I convened an international conference on human rights and solitary confinement at a time when the issue was not on legislative and judicial agendas, so it's heartening to see attention being paid in courts and in Parliament to the human rights crisis and now well-known harms associated with segregating and isolating human beings. However, I have to say, it's disheartening to see this particular legislative response.
I'm going to spend my short time today on what I see as three key issues or problems with Bill C-83, with a focus on the regime for segregating prisoners.
One, the proposal for structured intervention units actually expands rather than eliminates segregated conditions. Two, the proposal for SIUs, as I'll call them, has many of the same deficiencies and even fewer procedural safeguards than the existing regime, which has been found unconstitutional. Three, implementing this bill will be costly in human and fiscal terms in ways that are counterproductive to its ends. These issues lead me to the conclusion that the bill won't achieve its objective of eliminating segregation, and in my opinion, it is also unconstitutional.
The first point is that the proposal for structured intervention units actually expands rather than eliminates segregated conditions. These provisions give incredibly broad powers to the commissioner to designate whole prisons or areas of prisons as SIUs. Purposes for placing in SIUs are also very broad, including from proposed paragraph 32(a), to “provide an appropriate living environment for an inmate who cannot be maintained in the mainstream inmate population for security or other reasons”, undefined and unclear. It's very broad.
Proposed section 37.6 authorizes the imposition of SIU conditions and restrictions even before someone is in one of these new units, in other parts of a prison not designated as an SIU.
Also, with respect to time out of cell, proposed section 36, the opportunity for four hours out of cell and the opportunity for two hours of meaningful human contact are clearly a key aspect of this new regime that is said to make it very different from segregation, but there are many reasons built into the legislation that it might not be possible to actually achieve those hours out of cell. There is no actual way or mechanism or enforcement in the bill to ensure that prisoners are going to get the four hours outside of cell. I think you've heard from other witnesses this week and earlier that prisoners often don't even get the two hours outside of cell that they are supposed to be getting currently. There is no new provisions to make sure that actually happens.
The second point is that the proposal for SIUs has many of the same deficiencies and even fewer procedural safeguards than the existing regime, which has been found to be unconstitutional in the British Columbia case, and parts of it in the Ontario case. I know other speakers have and will speak about this. Not only is there no external oversight, but all of the reviews are internal. The regime itself has fewer safeguards and more discretion accorded to correctional officials. The internal review process includes vague factors such as “the appropriateness of the inmate's confinement in the penitentiary”, in proposed paragraph 37.3(3)(b).
Very much in this regime is left to regulations, which we, of course, do not have now and which are not subject to the legislative review process and this very process that the committee is engaged in right now, such as those proposed or future regulations related to the review by the commissioner after 30 days from the institutional head's decision to keep the person in SIU—which is actually 60 days from an initial placement, as I read the legislation.
As far as I can see, the much-discussed daily visit by a member of health care staff does not actually move the needle. As I read the legislation, it could be the nurse distributing medications. There is no requirement that it be some new form of review or care.
In addition, the existing requirement that the warden or designate visit the segregation area, or SIU, seems to be no longer required under Bill C-83 although it appears in the transfer part of the legislation.
Similar is the fact that health care staff recommendations that a person not be in SIU do not need to be heeded by the warden. There is no mechanism for that, again, and even the obligation is now gone that the warden meet with the prisoner who they have decided must remain in segregation to explain reasons and allow representation. It's replaced with a basic provision that the institutional head will meet with everyone in SIU every day.
Why are there fewer procedural safeguards? The reason for this seems to be that the government has attempted to create a system of isolating prisoners that is not called segregation, and they argue it's sufficiently different from segregation. Therefore, I think the logic goes that none of the findings of fact in the courts, in international human rights standards or the charter rulings about segregation apply. Minister Goodale said in his testimony to this committee:
The point is this. We are getting rid of administrative segregation. The arguments pertaining to administrative segregation are thus no longer relevant.
That is what is so concerning, the idea that slapping a new coat of paint and a new sign on a segregation unit and aspiring to have people confined for fewer hours in there, but not ensuring it, takes us out of the purview of the charter and human rights laws. In my view, of course, it's clear that the charter does apply and this regime suffers from many of the same deficiencies as the existing one, and some new ones, and will likely be found to be unconstitutional.
I will leave it there.
4:40 p.m.
Liberal
The Chair Liberal John McKay
Thank you very much.
I apologize again for the technical difficulties.
Mr. Rudin, do you want to take another run at this?
4:40 p.m.
Program Director, Aboriginal Legal Services
Again, thank you for the invitation to be here.
I don't want to spend too much time talking about Aboriginal Legal Services, but I do need to say that our spirit name is Gaa kinagwii waabamaa debwewin, which in Anishinaabemowin means “All those who seek the truth”.
We have often appeared as an intervenor at the Supreme Court of Canada and before committees of the Senate and the House.
As you know, aboriginal people are grossly overrepresented in the prison system. In the context of this bill, we have to recognize that aboriginal people are also overrepresented in administrative segregation. The correctional investigator reported that the percentage of segregated aboriginal inmates increased by 31% between 2005 and 2015, and that is compared to a growth of 1.9% for non-aboriginal inmates. Aboriginal offenders have consistently had the longest average stay in segregation of any group.
As was recently stated by the Supreme Court of Canada in Ewert, the reasons for aboriginal overrepresentation in prison do not lie with the inmates, but with the system they are living in. The Supreme Court said that discrimination experienced by indigenous persons extends to the prison system.
We want to focus our submissions today on three issues: the structured intervention units, the failure of the legislation to require the consideration of Gladue factors and the need for independent oversight, and finally the issue of community reintegration.
In our submission, as many other people have said, we have said that the creation of structured intervention units runs the risk of repeating the same harms that are acknowledged to be created with solitary confinement. The bill fails to meaningfully address the underlying reasons that inmates are placed in SIU. The focus on inmates' safety and institutional security in the bill fails to address the finding of the correctional investigator that many inmates who are placed in administrative segregation are primarily at risk to themselves because they are suicidal, engage in other self-injurious behaviour or pose challenges to management because they have mental health or cognitive limitations.
Instead of addressing the mental health needs of inmates, this legislation only guarantees a minimum of four hours outside the cell each day. Clearly, more significant reforms are needed to truly address the underlying reasons people are placed in segregation. Reforms, such as those proposed in the jury recommendations in the Ashley Smith inquest, would ensure that, rather than warehousing inmates with cognitive disabilities or mental health issues and those who are emotionally distraught, CSC would be required to provide appropriate assessment and treatment.
We echo NWAC's submissions about the crucial importance for aboriginal inmates of access to appropriate cultural and spiritual advisers.
Second, in this bill, proposed subsection 37.3(1) ensures the head of an institution reviews the situation of an inmate in SIU on a regular basis, but that protection was also provided for in the previous regulations. Those protections have failed to protect inmates from long periods of time in solitary.
The proposed legislation offers no change to the discretion an institution has had to continue to approve continuous segregation. What is glaringly absent from the proposed legislation is any recognition that the deprivation of an aboriginal person's liberty occasioned by placing them in solitary confinement requires the consideration of the Gladue factors. While CSC has repeatedly stated that the Gladue principles inform their actions, there is nothing in Bill C-83 that actually puts that into practice. The gap between rhetoric and reality in this regard has been remarked upon a number of times by courts that have said that, despite CSC saying that they apply Gladue principles, they simply don't.
Given the inability of CSC to incorporate Gladue principles into its work, and specifically with regard to solitary, it would be naive to think that simply adding those words to the legislation would change anything.
That's why it's so important that there be an independent oversight officer position created that would allow for actual meaningful use of Gladue. This recommendation came from the correctional investigator in 2014-15. That should be adopted and the present legislation should be amended to allow for this position. If that were to occur, we think the wording that Gladue principles would apply to the decisions of that person would actually have some meaning.
To wrap up, our last point is on community reintegration. We're very concerned about the change to the wording on who can participate in an inmate's return to an aboriginal community. This is outside of the admin's say, but it's part of the legislation. The amended legislation deals with who can work to take inmates in under sections 81, 84, or 84.1.
Under the current act, the law says that this can be done by an aboriginal community and that “aboriginal community means a first nation, tribal council, band, community organization or other group with a predominantly aboriginal leadership”.
In this bill, it's proposed that the term “Indigenous governing body” be used, which means “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.”
We're very concerned about this. We have no sense of what it means to be “authorized”, and the addition of the link to section 35 certainly will disqualify many urban aboriginal communities from participating in the reintegration of their members. As you know, over half of the indigenous community in Canada lives in urban communities, and urban communities want to provide resources to those people who are being released from prison. We have an organization in Toronto, the Thunder Woman Healing Lodge, that is actively working to do this and would be denied this opportunity under this legislation.
We support the definition in an amendment that has been provided by NWAC, which would essentially take the definition in the current legislation, update the language and provide a better definition for what it means to be “predominantly” led by indigenous people. That, we suggest, is a change that would restore us to where we are instead of moving us back.
Meegwetch.
4:50 p.m.
Liberal
The Chair Liberal John McKay
Thank you, Mr. Rudin.
From NWAC, I have Ms. Finestone, please, for seven minutes.
4:50 p.m.
Elana Finestone Legal Counsel, Native Women's Association of Canada
Good afternoon. Thank you for having us here.
I plan to show you that when you consult with the Native Women's Association of Canada you get comprehensive answers. I would like to discuss NWAC's answers with you today.
I'd like to tell you a little bit about NWAC. NWAC is a national indigenous organization with a mandate and resources dedicated exclusively to empowering disadvantaged and discriminated against women, girls and gender-diverse persons who are first nations, Inuit and Métis. NWAC examines and understands the systemic factors that contribute to their criminalization, their overrepresentation in federal prisons and their confinement under stringent conditions. We have extensive experience in advocating for indigenous women in the House of Commons, at inquests and in various courts. We know that indigenous women are now the fastest-growing population in Canadian prisons.
When discussing Bill C-83, it's important to understand the underlying factors leading to indigenous women's criminalization. I want to highlight the gendered effects of colonization on indigenous women and how these effects should meaningfully respond to their needs. Simply stated, it's about needs: how to assess their needs, how to support their needs and address them in the institution, and how to address those needs outside of the institution.
I don't have enough time to address all of NWAC's concerns about this bill. Suffice it to say that NWAC endorses the Aboriginal Legal Services' submission and echoes their call for more significant reforms in structured intervention units to—as they say—truly “address the underlying reasons” people are placed in segregation. NWAC also supports the Canadian Association of Elizabeth Fry Societies' recommendation to abolish administrative segregation and similar isolating and restrictive practices in women's prisons.
First, I will touch on assessing indigenous women's needs. It is clear that the intergenerational effects of Canada's history of colonialism, residential schools, the gendered implications of the Indian Act on indigenous women's status and many other forms of displacement harm indigenous women. Almost all federally imprisoned indigenous women have had previous violent and traumatic experiences, such as physical and sexual abuse and problems with substance misuse. It's important for federal prisons to meaningfully respond to their realities in a way that's sensitive to these gendered impacts of colonization.
CSC's obligation to advance substantive equality and correctional outcomes for indigenous prisoners underscores the importance of using the Gladue principles to assess and respond to their needs, not their risks, but that is not what happens. Corrections overclassifies indigenous women's level of risk. A high-risk classification translates into restrictive and isolating prison conditions, where they don't have sufficient or culturally appropriate care. These restrictive, isolating and culturally inappropriate conditions are mentally and physically harmful to them. They perpetuate the gendered effects of colonization.
As you can see, indigenous women in federal prisons require the most support but are the most punished. CSC conflates risks with needs, and this is troubling, since the systemic and background factors elucidated in Gladue are intended to be mitigating. That's why NWAC wants to ensure that systemic and background factors affecting indigenous people are applied correctly.
We recommend that you amend proposed section 79 of Bill C-83 to ensure that every decision affecting federally imprisoned indigenous women and the gendered impacts of their systemic and background factors are considered and used only to assess prisoners' needs.
Now I'd like to talk about how these needs can be addressed in prison. The necessity of providing culturally appropriate and trauma-informed care was underscored during the community hearings at the National Inquiry into Missing and Murdered Indigenous Women and Girls. Those who testified about traumatic and harmful events needed resources to heal their reopened wounds. Proposed section 79.1 of Bill C-83 will likely call for federally imprisoned indigenous women to disclose their Gladue factors in order for their systemic and background factors, culture and identity to be properly understood and applied to CSC decisions.
Bill C-83 cannot ignore the re-traumatizing impacts their disclosure will have on them in the aftermath. In our brief, we recommend that culturally appropriate care be provided in these instances. NWAC recognizes the value that culture and spirituality can have in healing from the physical, mental, emotional and spiritual harms caused by Canada's colonial history. That's why it's important for federally imprisoned indigenous women who choose this healing path to have elders or indigenous spiritual advisers available to them. The element of choice is worth emphasizing when it comes to cultural and spiritual healing.
NWAC takes issue with the lack of consultation CSC affords indigenous communities, especially concerning culturally appropriate healing. The pan-indigenous approach to cultural healing in federal prisons is one example of CSC's culturally inappropriate practices. First nation, Métis and Inuit women are significantly different from one another. There are different communities within each of these groups, and each elder within these communities has their own teachings, traditions and protocol.
NWAC finds it concerning that not all people hired to be elders in prisons have earned the title of elder from their communities. To ensure that elders are responsive to the needs of the diverse groups of federally imprisoned indigenous women, NWAC recommends that CSC meaningfully and respectfully consults with federally imprisoned indigenous women and indigenous communities across Canada about the culturally appropriate use of elders and indigenous spiritual leaders in federal prisons.
We also call for a definition of “indigenous communities” that characterizes what legitimate indigenous organizations across Canada look like and excludes organizations that aren't legitimate. I'm happy to answer questions about that during the question period.
Thank you very much.
4:55 p.m.
Liberal
The Chair Liberal John McKay
Thank you, Ms. Finestone.
Before I go to Ms. Damoff for her seven minutes, as we were a little slow getting off the mark here, I propose that we extend the hearing for five or 10 minutes.
Is that fine?
4:55 p.m.
An hon. member
Yes.
4:55 p.m.
Liberal
4:55 p.m.
Voices
Oh, oh!
4:55 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you, Chair.
To the witnesses, I see you're smiling. This is a very collegial committee.
4:55 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I'm really happy to see you here. Thank you so much. It's nice to see you again.
Ms. Finestone, when you and I met, we spoke about the definition of “indigenous organization”. Dr. Allen Benson, who appeared before this committee, provided some wording to be added that would define indigenous organizations as ones with predominantly indigenous leadership.
I'm wondering if both of you could comment or give your thoughts on that and if there's anything you wanted to add or remove.
4:55 p.m.
Legal Counsel, Native Women's Association of Canada
Our definition, which we have put forward to this committee, means to be responsive to that concern. In no way do we want organizations that aren't legitimate to be part of this.
This is what we propose in terms of “indigenous community” and “predominantly indigenous leadership”:
lndigenous community is an organization, community, band, tribal council, nation, or other group with a predominantly lndigenous leadership of First Nation, status, non-status, on or off reserve, Métis or Inuit.
Predominantly lndigenous leadership exists where the majority of a group's board of directors are status or non-status First Nations, Métis, or Inuit, on or off reserve and where the group
(i) demonstrates expertise and program delivery that is grounded in lndigenous laws and customs; and
(ii) advocates for culturally appropriate, community-based alternatives to prisons.
Our definition is meant to reflect the diversity of indigenous groups, with a nod to Métis in adding the word “nation”, and non-status women who are disenfranchised because of the Indian Act.
5 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Just out of curiosity, which group is hoping to do a healing lodge in Toronto?
5 p.m.
Program Director, Aboriginal Legal Services
The group is called Thunder Woman Healing Lodge.
5 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you. I'm also wondering about your thoughts on the definition.
5 p.m.
Program Director, Aboriginal Legal Services
We support the definition that NWAC has proposed. We are very opposed to the definition that exists in the proposed legislation. For example, based on the definition that's here, Thunder Woman Healing Lodge would not be able to open because it's not clear who authorizes an urban organization to do anything. The whole discussion of section 35 has no place in this process at all.
We're very supportive of certainly Dr. Benson's concerns, but I think the NWAC suggestion addresses those.
