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.