Public Safety Committee on Dec. 1st, 2016

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Good afternoon and welcome to this, the 47th meeting of the Standing Committee on Public Safety and National Security.

Today, pursuant to Standing Order 108(2), we're receiving a briefing on the 2015-16 annual report of the Office of the Correctional Investigator. We are very pleased to have the correctional investigator of Canada, Mr. Howard Sapers, with us today, as well as his executive director, Ivan Zinger.

Thank you very much for making yourselves available to this committee. The committee has had a chance to look at the annual report. We want to have an opportunity both to hear about your annual report and anything you want to convey to the committee members about it, but also to give us a chance to congratulate you on your new appointment, wish you well, and wish you a safe return to Ottawa at some point in the future.

Take it away. Frankly, you have as long as you'd like, this being your swan song. We very much want to hear from you.

Just to let the committee members know, I am hoping at five o'clock to move to committee business. We have, then, an hour and a half with Mr. Sapers, and then bells at 5:15 p.m.

If that works, we'll try to move into that framework.

Mr. Sapers.

[Howard Sapers, Correctional Investigator of Canada, Office of the Correctional Investigator]

Thank you very much, Chairman.

I have never heard those words before, that I have as long as I want. That adds to the privilege I'm feeling this afternoon. It has always been a privilege to appear before this committee. I really appreciate the opportunity to meet with you for what will no doubt be my last time in this capacity.

We've had many opportunities to discuss many important issues. Some of the things I'm going to share today with the committee you've heard from me before, but as I always say, I'll repeat myself until everybody has listened. Some of it will be new, and of course there will be lots of time for questions.

Chairman, thank you again.

Joining me this afternoon is Dr. Ivan Zinger, who is the executive director in the Office of the Correctional Investigator.

The Minister of Public Safety tabled the annual report in Parliament on Halloween, on October 31, 2016. It was my 12th annual report and the 43rd annual report from the Office of the Correctional Investigator, so there's a long history and a tradition of having these kinds of discussions.

Fittingly, this year's report provides an assessment of corrections today, but also a blueprint for what I believe would be a comprehensive reform. Untypically, the report contains 27 recommendations. That's more than I think is reasonable. I thought it was necessary.

The report was directed, as you know, towards a new government, and it deliberately repeats some recommendations: some that have not been accepted, some that were never adequately answered, others that were ignored or dismissed entirely, and still others that have just languished unaddressed.

The report also includes some new recommendations targeting, for example, transgender inmate rights, the role of health providers in corrections, as well as operational concerns involving the new minimum security units at the regional women's facilities.

I believe it is a very balanced and impartial report, but as I said, it's lengthy. I hope it serves this committee well as an accountability report on the Correctional Service of Canada's operations. In spite of progress on some files, there continues to be no shortage of areas in need of improvement.

I am pleased that this year's report and recommendations have been met with a renewed and refreshing degree of responsiveness from both the Correctional Service of Canada and the minister. This is positive and encouraging, and it bodes well for a smooth and successful transition to the next correctional investigator for Canada. I leave my current position fully and completely confident in the future of the office and in its relationship with the Correctional Service.

There are a number of issues that stand out in consideration of this year's report.

Number one is the unabated increase in the number of indigenous people behind bars, now at a rate surpassing 25% of the total incarcerated population. The cycles of intergenerational trauma, poverty, and blocked opportunity that continue to bleed into our jails and prisons remains a scourge on Canada's human rights record.

There is the demonstrated but unfulfilled need for more educational, vocational, and skills training programs in corrections. More than three-quarters of all people admitted to federal custody today do not have a high school diploma. Most have never had a reliable income or held a steady job.

There has been inadequate progress in preventing deaths in custody. My office continues to investigate in-custody deaths in which the staff response was inadequate, delayed, or frankly, bungled. The prison suicide rate remains stubbornly high, while the median age of natural mortality remains persistently low, averaging just 62 years of age.

The need for alternative service delivery arrangements for offenders who are significantly mentally ill or who chronically self-injure or who are suicidal remains an urgent need and as desperate as ever.

The number of use of force incidents involving chemical and inflammatory agents is alarming. The use of pepper spray on inmates has tripled since 2011. The use of these agents is so ingrained, pervasive, and routine that it threatens to displace more dynamic, less coercive ways to deal with conflict behind bars.

The prison system is increasingly ill-equipped to provide for the health care needs of an inmate population that is growing older and sicker. We need to find better, safer, and less costly options to manage a growing subpopulation that poses the least risk to public safety yet is among the most expensive to incarcerate.

These concerns are not new. Even with the renewed responsiveness to this year's report, many of the actions and undertakings of the Correctional Service of Canada in response to my recommendations involve future study, consultation, review, or preparation of a report of one kind or another.

While consultation and careful study are necessary, the office has been reporting on many of these issues annually since my initial appointment in 2004. The problem areas are now deeply and firmly entrenched. They're well defined. They're well known, and there's been a lot of time for study.

I want to take my remaining time with you this afternoon to outline areas of mutual interest and intersecting priority among my office, your committee, and the government's stated intentions in criminal justice reform.

From the Prime Minister's mandate letters, four broad areas stand out to me: number one, addressing overrepresentation of indigenous peoples in federal corrections; number two, establishing additional legal limits on the use of segregation/solitary confinement in Canada; number three, implementing outstanding recommendations from the inquest into the death of Ashley Smith; number four, conducting a comprehensive review of the criminal justice system.

There are many ways to advance these areas without having to undertake substantial and lengthy legislative reform. Among them is included the implementation of these unmet recommendations:

Number one, appoint a deputy commissioner of indigenous affairs for federal corrections.

Number two, ensure that aboriginal-specific provisions of the Corrections and Conditional Release Act are used to their fullest and intended effect, including increasing the number of government-to-government agreements that would transfer the care, custody, and supervision of indigenous offenders to first nation, Métis, and Inuit communities.

Number three, establish 24 hours a day, seven days per week nursing coverage at all medium and maximum security institutions.

Number four, reallocate resources to better fund rehabilitation initiatives and community reintegration activities.

Number five, enhance human rights and correctional law training among front-line correctional staff.

Access to and quality of health care behind bars requires further attention. I believe it is in the public interest that the service's optimal care model of mental health care be independently validated.

It is also time for the Correctional Service to expand harm reduction measures that would more broadly mirror what is available and practised in the community.

Finally, there needs to be closer integration of institutional and community-based health services to better facilitate timely and safe reintegration.

The wider review and reform of Canada's criminal justice system needs to look at ways to strengthen independent oversight and accountability. These objectives could be achieved by the following measures:

Number one is signing the Optional Protocol to the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, creating a national and international inspection system for all places of detention in Canada.

Number two is introducing independent adjudication to extend administrative segregation beyond 15 days.

Number three is establishing a patient advocate office in each of the five Correctional Service of Canada regional treatment centres.

Number four is creating a national round table on the prevention of deaths in custody.

Number five is ensuring the independence of the Parole Board of Canada's appeal division.

Progress in these areas would re-establish Canada among the world's leaders in human rights and corrections and help restore public trust and confidence in parole and correctional decision-making.

A specific review of the Corrections and Conditional Release Act, CCRA, should also be undertaken in the context of broader system review.

Several aspects of the CCRA require immediate attention, including:

Number one, independent adjudication and the prohibition of administrative segregation for certain classes of offenders, e.g. those who have significant mental health issues, are chronically self-injurious, or suicidal.

Number two, a review of the purposes and principles of federal corrections to better reflect the Charter of Rights and Freedoms.

Number three, entrenchment of Gladue or aboriginal social history factors as a mandatory requirement in any decision that impacts the retained life, liberty, or security interests of an indigenous offender.

Adding to this list, I would also include a number of areas related to parole that, if changed, could remove unnecessary barriers to safe and timely reintegration: the need to re-establish accelerated parole reviews or presumptive release for first-time, non-violent, federal offenders; a review of parole ineligibility periods; an assessment of the need for in-person hearings for post-suspension decisions and for mandatory reviews for residency conditions; and a review of record suspension provisions, including mandatory waiting periods and application fees.

Finally, there are many reforms outside of federal corrections that could have a positive impact on correctional outcomes, including the overrepresentation of indigenous people in prison and the criminalization of the mentally ill, for example: enhanced judicial discretion for victim fine surcharges; increased judicial discretion for most mandatory minimum penalties; federal funding to support legal aid representation for indigenous accused to ensure that Gladue social history factors are considered by all levels of courts and throughout their sentence administration; a review of alternatives to incarceration, including conditional sentences, bail, and specialized courts; reforms to the criminal justice system to better address the needs of offenders dealing with fetal alcohol spectrum disorders.

Chairman and committee, thank you for your ongoing interest in the work of the Office of the Correctional Investigator. I value the time you have given me today and I look forward to your questions.

[The Chair, Liberal, Rob Oliphant]

Thank you very much, Mr. Sapers.

Mr. Spengemann.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Mr. Sapers and Dr. Zinger, thank you very much for being here. Thank you for your important work.

Mr. Sapers, to you especially, thank you for your long-standing service in this field. I offer you the very best wishes in your new role.

I would like to spend my seven minutes with you on the area of our indigenous communities and their relationship with the federal correctional system. In fact, early in its mandate this committee expressed some interest on the part of at least some members in doing something about this area. I'm very mindful of what you said about further studies, but if you could take my questions through the lens of helping this committee formulate an approach to perhaps becoming more involved with this very important issue, that might be helpful to us.

With respect to our first nations, our government has very much put front and centre the commitment to a nation-to-nation dialogue. That extends into issues we saw this week, such as the pipeline approvals. It extends into indigenous health and also infrastructure in the Far North with respect to clean water. But in few areas is the message as profound, I think, as it is in the area of corrections.

I want to put to you four general themes that I noticed from your report, but also from the third report of the Auditor General, “Preparing Indigenous Offenders for Release”. We're dealing with overrepresentation, with access to correctional programs, completion of correctional programs, and then also the very important area of release and reintegration.

I want to add to that the very important question of indigenous women. I'm mindful of the report's comments on women in general, but if we use a gender-based analysis and we combine the two sets of being indigenous and being female, we have some heightened attention on some very pressing issues.

I want to put it over to you. Can you give us from your writing, from your report, the most salient messages, maybe beginning with the area of overrepresentation? Some say that isn't really the fault of the correctional system, because upstream there's a judicial process and people are being put into the system. That's a separate question, but how can we address overrepresentation with respect to giving better access to culturally specific programs?

Then, looking at the release process, how can we make it better and eliminate the risk of reoffending but also facilitate the reintegration into society?

[Howard Sapers]

I agree with you entirely that it's not the Correctional Service of Canada's fault that today 26.5% of the federally incarcerated population is of indigenous heritage. Recently my office reported the sad milestone of 25%, and it has gone up since then. There are upstream issues, broad social and structural issues that have to be addressed, but corrections owns an important piece of the solution, I believe.

You mentioned women. Nearly 37% of federally sentenced women are indigenous. That's one of the fastest growing subpopulations in federal corrections. The proportion of federally sentenced indigenous women, I believe—and, of course, Dr. Zinger is here to fact-check this for me—has doubled or nearly doubled during my tenure as correctional investigator of Canada.

You cannot disentangle all of the other issues that are part of our current discourse around the nation-to-nation relationship and this stark, dramatic, and unreasonable overrepresentation in our corrections system. The Correctional Service of Canada has identified this themselves as a priority.

In fact, identifying the problem is no longer the problem. Recently, this week in fact, I spent some time at a Gladue summit to try to address what, at least in the province of Ontario, could be done to address these issues. Gladue, of course, refers to the Supreme Court of Canada decision, a very fundamental decision. What was clear was that it's not just recognizing the impact of colonial contact; it's not just recognizing intergenerational trauma; it's not just acknowledging that there has been dislocation; it's actually then applying a lens that allows you to do analysis that will change outcomes.

In my opinion, that's where the Correctional Service of Canada is failing. The Correctional Service of Canada has developed healing lodges. The Correctional Service of Canada has an aboriginal corrections directorate. The Correctional Service of Canada engages with elders, has a national advisory committee on aboriginal issues. There are culturally specific programs. There are sacred grounds in most institutions. All of these things are positive, are important, are necessary, but they don't make that extra step.

I'll give you a specific example of what I mean. On many of the forms and the documents that the Correctional Service of Canada staff have to complete when they're in the process of making a decision, there's a box on the form for aboriginal social history, if you're dealing with an indigenous man or woman. What we see too often in that box is not an analysis of what that social history means and how it can be applied to the decision at hand. What we see is simply an acknowledgement that the social history was considered.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

May I ask you a sideline question? I don't want to interrupt your thought because it's important, but I have just a quick sideline question.

You mentioned the director of indigenous corrections or a senior person within the Correctional Service of Canada. How diverse is the body of correctional officers? Do we have enough first nations indigenous representation as correctional officers? If somebody who is not indigenous reads or looks at those factors, will he or she actually have a deep enough understanding of what they are about to reach a decision on that adds value?

[Howard Sapers]

You realize that you asked about six questions in that one.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

My time is very compressed, so I'm trying to get them in.

[Howard Sapers]

I'll try to be as quick as I can in addressing the issues, because they are significant.

In terms of equity employment, the Correctional Service of Canada does well. In terms of how well it reflects the client population, they don't do so well.

The question I have about that, however, is, would it be a success if 40% of the women who work in corrections were of indigenous background? That doesn't address the problem. The problem is the overrepresentation. We have to be very careful about that.

The other issue is that you can do all the cultural awareness training and everything attendant to it that you want, but if you don't change culture—culture eats policy for breakfast—you're not going to have the impact; you're not going to have the outcomes you're looking for.

It's really tone at the top, and that gets back to the reason we're saying that in spite of the good people who work in that aboriginal corrections directorate, we need a deputy commissioner. We need a senior person whose sole focus is accountability for addressing indigenous corrections issues.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thanks, Mr. Sapers and Mr. Spengemann.

Mr. Clement.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Thank you for being here, Mr. Sapers.

In my riding, I have a correctional facility called Beaver Creek. There used to be Beaver Creek and Fenbrook. They've amalgamated and are called Beaver Creek. It's an important institution, and it has to be run correctly, there's no question about it.

Forgive me for not knowing all of the history of the correctional investigator of Canada. Your role is to represent whom in the system?

[Howard Sapers]

The office was first established after a commission of inquiry into a riot at Kingston Penitentiary in 1971. It was established to address the findings of that inquiry, which in part concluded that the riot, which led to loss of life and massive property destruction, was ignited by the pent-up frustration of there being an inadequate and dysfunctional process for addressing legitimate concerns and grievances of the inmate population.

Parliament created the Office of the Correctional Investigator, first as a commission of inquiry under the Inquiries Act, and subsequently, post-charter, entrenched in law as an ombudsman for federal offenders, reporting to Parliament on maladministration within the Correctional Service of Canada and addressing the concerns of offenders.

That statutory authority—

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Are you an advocate for the offending population, then?

[Howard Sapers]

No. I am an ombudsman, which means that I'm independent and I'm neutral. I don't take sides.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

I see.

[Howard Sapers]

What we do is respond to complaints. We also identify systemic areas of concern. We make recommendations to the commissioner or to the minister to address those concerns.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Would you, in the natural course of your work, be interacting with offenders but also with corrections officers and administration? Is that how it works?

[Howard Sapers]

Staff from my office, including me, meet with inmates primarily, but in the course of our work we meet with corrections staff, from the commissioner all the way down throughout the organization, to gather information, to negotiate redress, and to better inform our decisions.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

That's in response to a complaint or when you're reviewing a particular policy issue. You say you're independent, but it seems, in terms of the language you're using, that you're primarily there to represent the offender in the process. I don't want to put words in your mouth. I'm just trying to figure out....

If a corrections officer has an issue, does she or he go to their union with that issue, or can they go to you with an issue? Would you write a report that would have a corrections officer's point of view rather than an offender's point of view, if the two are dissonant? How does it work that way?

[Howard Sapers]

As an ombudsman, we can deal with complaints directly from inmates. We can take complaints from family members. We can also take a complaint from the Minister of Public Safety. We also have the ability to investigate on our own motion.

We receive information from Corrections Canada staff. We don't resolve their issues or their grievances. They have a collective agreement. They have other public service mechanisms, such as the Office of the Integrity Commissioner or the official languages commissioner, and all of the other accountability offices where correctional staff can go. If you go back to the history of the office, you see that the office was set up to respond to a particular need, which was to increase accountability in corrections for resolving inmate concerns to deal with acts, omissions, or decisions of the Correctional Service of Canada.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

That's fine. I just want to know where you're coming from. Obviously, most of my interactions are with the employees who are the corrections officers in the institution, and who also, at times, need someone who understands their very difficult job. At times, they're in a very difficult situation where management has expectations and where the public might have expectations. The offenders have rights, obviously, in our system, and sometimes it's the corrections officers who need a voice. It's a very psychologically difficult job that they have to do, and sometimes a physically perilous job. I just wanted to state that for the record.

Can I get to one more issue before I relinquish my time? Was it you who recommended to the minister an increase in prisoner pay?

[Howard Sapers]

Yes.

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

Can you give me a bit more of your reasoning for why we should be paying prisoners more?

[Howard Sapers]

Well, it's pretty straightforward. Inmate allowances for work inside the institutions and for program participation were set in 1981. Since 1981, there has been an increasing financial burden on federally sentenced offenders to pay for things such as telephone calls. Also, a proportion of their incomes, such as they are, go towards room and board.

This allowance that was set 35 years ago also allows inmates to save for their release, and it allows them to maintain contact with their families. I don't know what the cost of a postage stamp is in terms of percentages since 1981, but if somebody wants to mail a birthday card home to their child or a Christmas card home to their family, they pay for that themselves. That money is used for canteen goods as well. If they want to buy something that's available through the inmate canteen, the cost of canteen goods has gone up nearly 800%, I believe, in that 35 years, but of course the allowances haven't—