Public Safety Committee on Nov. 22nd, 2018

[The Chair, Liberal, John McKay]

Okay, ladies and gentlemen, it's 3:30. I see quorum and we do have a lot to get through today.

As per the agreement we made earlier in the week, witnesses will be limited to seven minutes each, rather than the usual 10 minutes. I'll just simply call the witnesses in the order that they're listed on the agenda.

We have from the British Columbia Civil Liberties Association, Josh Paterson; from the Union of Safety and Justice Employees, Stanley Stapleton; and Lois Frank, who is a Gladue writer from Alberta Justice.

In that order, I'll ask Mr. Paterson for his seven-minute opening statement.

[Josh Paterson, Executive Director, British Columbia Civil Liberties Association]

Good afternoon and thank you for inviting me to testify today in unceded Algonquian territory.

I'm from the B.C. Civil Liberties Association, which along with the John Howard Society, are the organizations responsible for the B.C. court decision that I know most of you probably read around the table. I'm not going to belabour the legal conclusions there. I'm going to take it as given that you understand what the court ultimately decided. I want to talk about a particular aspect of it today.

The minister has urged this committee to note that Bill C-83 represents an entirely different regime and, therefore, that the findings of the courts in B.C. and in Ontario really aren't that applicable.

As you've heard from other witnesses, including the correctional investigator and in our view, the harms of the existing regime remain possible under this new bill because nothing that this bill promises is guaranteed in relation to segregation. I would suggest to you, with respect, that the government's argument, which is that we're in an entirely new world and, therefore, the rulings have no or little relevance is misplaced.

While I don't have time to get into all of the bill's significant shortcomings today in that regard, I will point you again to the submissions of John Howard, the CCLA and the correctional investigator, with whom we largely agree. I want to focus my time today on the issue of oversight.

Without taking you through all of the facts, the B.C. ruling found, as a fact, that there has been a long history of a culture of non-compliance with law and rules in the prisons, specifically as it relates to segregation, to solitary confinement and to isolation. Also, there has been a similarly long history of resistance to the idea of external oversight of segregation placements. The court drew a clear connection between those two trends and I hope that the connection will also be evident to this committee.

The B.C. court spends pages and pages on this, starting with the government's own Vantour report in the 1970s, which concluded that the penitentiary service—as it was then known—had failed to comply with existing laws, regulations and policy. Justice Leask goes on to the MacGuigan report, which the court found “was a damning indictment of the absence of the rule of law in the penitentiary system.” It was actually after that report that the government put in place the independent chairpersons for disciplinary segregation and for disciplinary hearings.

He arrives at the Arbour report on what happened at the prison for women, which found that there were not individual instances of failure to respect the law, but rather a culture that failed to respect the law. Of course, she recommended hard caps for segregation and judicial, or at least independent adjudicator, supervision.

Following Arbour, there were at least six other internal CSC reports, House of Commons reports, correctional investigator reports and the Ashley Smith inquest. Each of them made recommendations that pointed to the need for independent adjudication of segregation decisions. Every time, the government has decided to ignore those recommendations.

Here we sit again. We have a court decision, in which the conclusion, based on the evidence and findings of fact, is conceded as true by the government and the finding is that internal oversight won't do. That ruling sits atop a heap of expert recommendations, stretching back decades, and the undisputed findings of fact that there is systemic widespread failure in the prisons and a culture of non-compliance. In our view, Parliament should pass no bill without ensuring that this long-standing issue is resolved.

Just last week, at the Court of Appeal in British Columbia, Canada tried to argue again that what had happened was just a bunch of individual bad decisions, like misapplying the law, poor exercises of discretion and so on. The judges of the court of appeal actually interrupted and stopped the lawyer for Canada. The lead judge said words to this effect, “Canada, you're not challenging the findings of the trial judge. The trial judge found that there were systemic problems and that these problems were widespread and systemic in nature, not a series of individual issues. Why are we arguing about individual issues?”

This is really critical. The Government of Canada doesn't challenge those findings. In fact, it conceded that there has been serious systemic and persistent mistreatment and that there were breaches of rights.

When you're considering what to do about this bill, and indeed what to do perhaps about oversight, I think it's really important for the members to sit within that context, not the context of hope and aspiration that CSC has shown itself capable of administering these things properly. In fact, that isn't the finding. The Government of Canada has agreed with those findings by not challenging them.

That brings me to the issue of independent external oversight. To be clear, we don't support this bill in its present form. A particularly egregious shortcoming is that it continues the decades-long record of rejecting external oversight in favour of an internal system. We ask that Parliament not repeat that mistake.

It's been raised in this committee that the Ontario court said the review could be internal. In questions, I'd be happy to get into the differences between the two judgments and why there's that discrepancy.

Here's what the judge in B.C. had to conclude:

...I believe that the evidence led before me...demonstrates that CSC has shown an inability to fairly review administrative segregation decisions. I therefore conclude that procedural fairness in the context of administrative segregation requires that...reviewing a segregation decision be independent of CSC.

By systematically failing to treat prisoners fairly, whether through a lack of resources or whatever other reason—I'm not saying it's malfeasance—CSC has not only breached the Constitution, but it's avoided the will of Parliament.

Is that the one-minute signal, sir?

[The Chair, Liberal, John McKay]

Yes.

[Josh Paterson]

The court in B.C. wrote, for example—and the correctional investigator told you this week—that one of the most disturbing elements of the whole framework is that for years, CSC had been avoiding the independent chairpersons in disciplinary segregation and circumventing them to go to administrative segregation.

In my view, that is an affront to Parliament's delegated authority. Parliament had already concluded that in respect of some placements in segregation, there needed to be independent review, and the CSC has deliberately and for years—and Canada doesn't challenge this—avoided doing that.

I think that's a really important fact to keep in mind when considering what to do here.

I'll leave it at that, Mr. Chair. Thank you.

[The Chair, Liberal, John McKay]

Thank you, Mr. Paterson.

As a helpful hint to the witnesses, just occasionally look at the chair so that I don't have to interrupt. I don't like to interrupt witnesses as they are trying to make their presentations.

Mr. Stapleton, you have seven minutes, please.

[Stanley Stapleton, National President, Union of Safety and Justice Employees]

Thank you.

I certainly agree with my colleague before me that oversight is critical with anything that happens within corrections because, sometimes, that is certainly missing.

I bring to the table my years of experience. I have over 30 years in corrections. I started off as a correctional officer at the medium-security Drumheller Institution in 1980. In 1983, I moved to the maximum-security Edmonton Institution. I was a correctional officer for 22 years there, and now I'm a program officer. That's still my substantive position.

As the president of the Union of Safety and Justice Employees, I represent thousands of employees who go to work every day in corrections to prepare offenders for their safe return to society.

Today we're talking about Bill C-83, measures to make Canada's federal prisons more humane and improve offenders' chances of rehabilitation. USJE believes Bill C-83 is a first step in this direction. However, from my experience, I can say that new resources are needed to ensure its successes. Today, front-line workers burdened with heavy caseloads are at a breaking point. Something has to give.

Since implementation of the reforms proposed by the new bill will fall on front-line workers, this is what USJE recommends. From what we understand, there is approximately $484 million earmarked to support these changes. From USJE's perspective, some of these funds must be used to recalibrate ratios of parole officers and program officers to offenders.

Currently for parole officers, ratios are 30:1 at a max, 28:1 at a medium, and 25:1 at a minimum, but there's no back filling if a parole officer goes on a long-term sick leave or when they take vacation leave. There's no back filling. This means that, when the parole officers are not there, the offenders have significantly less support.

USJE believes that the ratio should be 20:1 for parole officers, and we also believe that back filling must be reinstated. For program officers working in the SIUs, the ratio can be no more than 3:1. At times, due to the complexity of the offenders, the ratio needs to be 1:1.

The changes Bill C-83 proposes for more meaningful interaction with offenders are positive, and that's important, because in all my years working in federal prisons, I've always felt that you need to treat people like people.

I spent an accumulation of approximately four years working in segregation units, and I can tell you that in all those years I never saw one offender who went in to segregation come out of segregation a better person.

The one thing I can tell you is that, when I'm on the street and I have offenders approach me—and they do approach me—or when I'm working bingo for my daughters to raise money for sports, they talk to me there. The one thing I've heard over and over again is, “Thank you, boss. Thank you for treating me like a person when I was inside. That helped me, on the outside, to understand.”

Those interactions definitely need to take place, and they need to take place inside the prison. Preparing offenders for their safe return to society requires real interaction, and that means programs, counselling sessions, mental health care and more face time with individuals. Providing this interaction is necessary to even the most challenging offenders.

Bill C-83 addresses some of these issues, but as it moves forward, the system needs to be better resourced to undertake these changes. Funding matters. Having been so long in the service, we've been through several deficit reduction action plans with the latest, of course, by the previous government. Previously, the action plans have not had a huge impact on the front line. Most of the effects were at middle management and upper management; however, the last time, the effects of cutting resources at the front line really had a significant impact.

As I said earlier, the members that I represent, particularly programs and parole officers, are really feeling the stress. USJE believes that new legislation is a good step in the right direction if resources are identified and put in place to improve offenders' chances for rehabilitation, to help keep Canadian communities safe and to ensure the safety of all employees working inside federal institutions.

Thank you.

[The Chair, Liberal, John McKay]

Thank you.

Ms. Frank, you have seven minutes please.

[Lois Frank, Gladue Writer, Alberta Justice, As an Individual]

Thank you for inviting me here.

I'm a Gladue writer, I'm an educator, and I live on a reserve. I could read my presentation, but I've made copies for you.

One of the things I'm doing currently is working with the neuroscience people at the University of Lethbridge. Because I've been doing this work of writing up Gladue reports, I've met a lot of offenders. I've been in Drumheller and some other prisons. There are all different names for these prisons.

I have the experience in talking to a lot of these people and in being in these institutions. One of the reasons I was quite interested in coming here was to share my experience of doing these reports and of talking to the people who are most affected.

I had a chance to look at the bill, and while I understand that there needs to be reform, a lot of native people have been living on reserves as if in prison. I say that because I do live on a reserve and it can be very oppressive sometimes. There are few resources, housing is a problem, and there are no property rights. Things such as that contribute to the problems that first nations people have in this country.

The Indian Act is our policy. The Indian agent was our warden. Now we have band councils that are designated to be our—

[The Chair, Liberal, John McKay]

I apologize for interrupting. I'm trying to get my assistant's attention. Go ahead, please.

[Lois Frank]

A lot of our band councils are not representing the people in our communities. We see that the native people only represent 4% of the population. There have been many studies done. The overrepresentation is 50% to 70% in the justice system. There's something wrong. To try to create something that is going to rearrange the deck chairs on the Titanic...because it's getting worse.

I live in a community where we have a major opioid crisis. We had seven deaths last week. We have problems, but unless we are able to deal with some of these problems head-on, I don't think we're going to see the reduction.

The Gladue reports were put into place because the Supreme Court in its wisdom saw that the sentencing judges had to look at the circumstances of aboriginal people. That hasn't been expanded to the correctional system, not to my knowledge. I write these reports, spend a lot of time, talk to people, get into the souls of these individuals, their families, and then it stops there.

The recommendations that we make oftentimes are not used by the correctional system. There's a need for healing plans rather than putting people in solitary, in what a lot of inmates call “the hole”. You know, it's counterproductive. Sometimes the only thing they get is a bible and many of them have literacy problems, so sticking them in a room for 22 hours a day, with no human contact and no chance to rehabilitate themselves, is just going to lead to their going into the communities and reoffending.

I would like to see the Gladue program implemented in the correctional system because we do a lot of this work, and where does it go? It has to go somewhere to be meaningful for families, for inmates. The work I'm doing with the neuroscience, you might think that's kind of odd. I've worked in criminal justice for many years, but I'm doing doctoral research with one of the leading neuroscientists in the world, Dr. Bryan Kolb. We're looking at ways in which we could perhaps look at some of the conditions, and not just the mental health, cultural and economic ones. Maybe we could look at the biology, the science, because in many cases a lot of these offenders have been misdiagnosed or not diagnosed at all. There are ways to treat them and to prevent or even reverse some of the effects.

FASD is a big problem. A lot of the individuals who are in the justice system have been diagnosed by various people: social workers, teachers, all that. They're labelled as slow learners, and so on. They're given Ritalin because they're hyperactive. Maybe they're just bored in school. I've talked to teachers for many years. We need to look at different approaches. Rather than spending a lot of money creating something new, maybe looking at new prisons, new-generation facilities, maybe we could look at expanding the Gladue program into corrections and utilizing that.

I also believe that we need to involve band councils. The terminology that is used in this bill is perplexing because they're changing it from “aboriginal” organization to “indigenous governing body”. That could have negative effects on indigenous people, because you have to get the permission. Right now there's no impetus. There's no reason why band councils should get involved in these issues like criminal justice. Make them. Put in the resources and get people in there like these governing bodies to help solve some of these problems.

I'm here with regard to implementing the Gladue into corrections.

[The Chair, Liberal, John McKay]

Thank you very much, Ms. Frank.

Monsieur Picard, you have seven minutes, please.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

I'll ask my questions in French,

if you want to put your translation device on. Do you need a hand with that?

I want to thank the three of you for joining us and for your presentations.

Mr. Stapleton, I want you to comment first on the recent announcement that the department will invest $448 million in the Correctional Service of Canada in the next six years.

[Stanley Stapleton]

Certainly $448 million is a significant amount of money. As we move forward, will it be enough? We're not sure, but certainly it will start the process, without a doubt.

Of course, as time goes on and more money is required, that $448 million is spread out over six years, I believe, and it increases as we move forward. It will be needed not only for staffing and other things, but it will certainly be needed in some other situations. It might be for some physical restructuring of the facilities themselves. I think it's a good investment.

[Michel Picard, Liberal, Montarville, QC]

You worked in the field as a correctional officer. Based on your knowledge of the management of an inmate in what used to be a segregation unit and what's now being changed to a structured intervention unit, will the proposed increase from two hours to a minimum of four hours outside the cell affect the number of staff or the workload? How will this change affect operations?

[Stanley Stapleton]

On the resources themselves, for example, if you can only deliver programs to one to three people at a time, you're going to need more program officers. As there are more programs and things that are delivered in the structured intervention units, that will almost certainly mean more work for the parole officers, and the parole officers will have to do more assessments in that as new information comes in. In order to provide the necessary services for the offenders who are living in these areas, there will be the need for an increase in those personnel resources.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Mr. Paterson, first of all, I want to thank you again for the excellent discussion that we had this week. It was very constructive. I understand that your association and our committee are seeking to improve a system that you think — and I fully agree with your rationale — has a number of shortcomings...

One issue that we discussed is the challenge of choosing between making changes and improving the current system. There may not be a difference between the two options, since the measures that we want to implement are designed to improve the system.

This brings me to the independence of the oversight body that you're proposing. You argued that an internal organization would be frowned upon for efficiency or partisanship reasons, for example. I understand your argument.

I would like you to consider the following comparison. When an internal issue arises, the police call on the internal affairs division. Within the organization, the division could be seen as both judge and jury. Nevertheless, the division is recognized as independent even though, as far as the police are concerned, it's made up of police officers.

I don't want to make the same comparison with CSC, but would having an independent group that reports to CSC pose a different problem and would it make this idea inconceivable?

[Josh Paterson]

If I understand your question correctly, let me just say that in respect of the police in the situation you raise where something goes wrong, where there is some type of misconduct and it's referred to professional standards or internal affairs, as they might say on TV, that is in respect of the discipline of members of the police. When someone has a complaint about the police, there is actually independent supervision of those reviews in most jurisdictions in the country.

Again, that's just where you have a complaint against the police. Your rights are at stake but your liberty isn't being threatened in the moment, and still we have une surveillance indépendante for that.

Here what we're talking about is substantial deprivation of liberty within a circumstance where liberty is already deprived. We don't know what types of resources will be there. We don't know what type of staffing will be put in. Therefore, it's possible that despite best intentions, and we think likely, there are going to be people who will continue in conditions of isolation very similar to what we see now, because this act doesn't prohibit it. We say, therefore, for those people, there does need to be an independent decision-maker who can come in to review those placements and that it isn't, as you recognize yourself, strictly analogous to an internal police disciplinary matter.

[Michel Picard, Liberal, Montarville, QC]

What are our options? We're not talking about oversight. This isn't because oversight is rejected, but because it isn't included. This leaves open the possibility of submitting recommendations.

Instead of suggesting a single approach, unless you think that only one exists, can you provide a few options or ways to ensure the proposed oversight?

[Josh Paterson]

As far as exactly how it would be constructed is concerned, there are probably different ways. What we do submit there is only one way to go about is whether it ought to be external to CSC or internal, independent within CSC but over to one side, outside the chain of command. We reject that fundamentally.

Whoever is doing the reviewing, the triggers ought to be along these lines: When a registered health care professional or the patient advocate advises CSC that the preservation of the person's health requires their removal, the review should be triggered after another 24 hours to allow for management to try to deal with that situation. If someone, anywhere in the prison, spends more than five consecutive days, or 15 days in a calendar year, inside their cell, whether they refuse or whether they are not granted, that is another trigger as to when that should kick in.

[The Chair, Liberal, John McKay]

Thank you. That's a good conversation.

Thank you, Mr. Picard.

Mr. Motz, please, you have seven minutes.

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

Thank you, Chair, and thank you to the witnesses for being here.

Mr. Paterson, I'll start with you.

The correctional investigator was here on Tuesday. He said that he doesn't believe Correctional Service Canada should investigate itself in certain scenarios and that they've lost the credibility to do that in the investigator's eyes. The minister, in contrast, has asked us to trust Correctional Service Canada and him to get it right and that we should just pass the law as it stands.

Do you agree with the minister that we should just trust that the regulations will get it right and everything else will be fine?

[Josh Paterson]

With great respect to the minister and his intention, I don't think we should be trusting CSC to do this. Without seeing regulations, it's very difficult to say, okay, we'll all sign off on that.

While the minister may ask this committee and parliamentarians to trust CSC, the minister's lawyers in court, having had the opportunity to challenge the findings of courts in Ontario and B.C. that CSC was not to be trusted, refused to take that position. They conceded all of the factual findings. They conceded all of that which I already talked about, so with respect, I don't really think it's open to the government to simultaneously say, “We ought to trust CSC,” while it deliberately falls back from deciding to make that argument in court.

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

Thank you.

Mr. Stapleton, we've heard from the minister himself and others that this bill cannot be costed until it's passed. Something we heard from former public servants is that this is not necessarily the case, in their experience.

You've said that this bill is only useful with resources. Is it irresponsible to pass a bill without knowing exactly what it's going to cost or when or if those resources will even be available in the first place?

[Stanley Stapleton]

My understanding is that there is $448 million being put towards doing what this bill is asking to be done. That's a significant amount of money.

Is it enough? I'm not sure. Is it too much? I'm not sure. Until we actually start the process inside corrections and put in place the tools that will need to be there, we won't really know the exact cost.

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

Thank you.

Mrs. Frank, it's great to see you again. Thanks for being here.

Usually I see you at home, but it's good to see you here.