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?
