Honourable senators, I rise to speak to Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

Honourable senators, spending days locked in a cell the size of a small bathroom undoubtedly generates and heightens mental health issues. Hallucinations, paranoia, crippling anxiety and dissociation are just some of the psychological, neurological and physical damage that isolation and segregation engender.

Honourable senators, we must take the time to imagine, to place ourselves in the shoes of a segregated prisoner and to consider alternatives to these inhumane conditions. After all, the purpose of our corrections institution is to rehabilitate, not to punish, and certainly not to aggravate pre-existing mental health issues.

As Senator Klyne has noted, senators, like MPs and judges, have special rights of access to prisons pursuant to section 72 of the Corrections and Conditional Release Act. Those who have exercised these rights will know that federal prisons, and segregation units in particular, are filled with those who are most marginalized in our communities; namely, the poor, racialized, victimized and those with disabilities. They reflect minority groups that we as senators have a particular duty to represent: individuals who lack voice and representation within the democratic system.

This information about realities inside the prison system that reach the outside world is tightly controlled by Correctional Service Canada. We must guard against the risks of filling these informational gaps with preconceived notions and assumptions. In too many communities and contexts, prisons are the only service that cannot turn people away because of waiting lists, a lack of beds or resources. As a result, increasing numbers of people, particularly women, those who are poor, those who have previously been victimized, those who are typically Indigenous or Black and those with mental health issues are being abandoned to prison. For women in particular, often commencing with a negative reaction to being strip searched, reasonable responses to unreasonable situations can and do result in behaviour being characterized as criminal, including actions or behaviour that is symptomatic of psychiatric or mental health issues.

The arbitrariness with which individuals are labelled risks to public safety and end up segregated became self-evident during the inquest into Ashley Smith’s death. I will spare you the details, as I am sure you are all familiar with the horrors of her story.

Lisa Neve, an Indigenous woman, experienced a similar fate. A member of the stolen generation, scooped from her community, she was one of a few women labelled a “dangerous offender.” The Alberta Court of Appeal struck down the designation and indeterminate sentence after concluding she was designated as such on the basis of what she said and what she wrote, not on the basis of what she actually did.

It took six and a half years to overturn her sentence and designation as a dangerous offender. In those six and a half years, she spent all but six months in segregation. July 1 of this year will mark the twentieth anniversary of her release, yet the hundreds of interlaced scars on her body document the self-injury and suicide attempts that the horrors of segregation generated.

Putting individuals into segregation or isolation may seem an easy fix and a reasonable response to behaviour that is challenging, but we know it creates and exacerbates mental health issues. In fact, we find consensus of expert opinions across medical professions on the dangers and unconstitutionality of solitary confinement heard lately through Professor Allan Manson.

Today, about half of the women who are segregated have disabling mental health issues. In addition, about half are Indigenous. CSC’s research, as well the Parole Board of Canada’s, reveals that women, particularly Indigenous women with mental health issues, do not pose the greatest risk to public safety.

This bears repeating. Under the current system, discriminatory classification approaches mean that those who pose little to no threat to society are being segregated for extensive periods.

Further, section 81 agreements that allow Indigenous Peoples to serve their sentences in Indigenous communities would be far less costly than classifying them as higher security prisoners and segregating them. The Parliamentary Budget Officer confirmed that for women in particular, these agreements cost less than one tenth of the estimated costs of the system set out by SIUs. While costs should be no barrier to reconciliation with Indigenous peoples, economical alternatives that respect human rights and provide better outcomes for Indigenous prisoners and their community should be a primary goal of our corrections system.

Moreover, if we are to unjustly and too often incorrectly identify prisoners as gang members and label them part of a security threat group, we must also provide them with a means of removing that label when due rather than imposing segregation and virtually eliminating their opportunities to reduce their security classification and work towards community integration. For example, disaffiliation programming such as the Breakaway initiative, developed by non-governmental groups and affected individuals like Rick Sauvé, really should be implemented. The PBO recently confirmed that such a program, implemented nationally, would cost a mere $200,000 per year. Its success would offset the costs of keeping prisoners in segregation.

As international prison expert Andrew Coyle has said, the “need” for segregation is generated and reinforced by problematic conditions of confinement, without regard to humane alternatives. Corrections has invested in static security options such as restraints and segregation, rather than providing private family visiting units for those who seek solitude from overcrowding, or transfers to mental health units for those suffering from mental health issues.

These examples clearly demonstrate that we can do things differently. This was the thinking behind a proposal that the Canadian Association of Elizabeth Fry Societies made to CSC with the aim of ending segregation and isolation by any name, and in any form, for women. The Elizabeth Fry Society proposed to work with CSC and the Canadian Human Rights Commission and others to develop individualized alternatives to segregation for every woman CSC might consider isolating.

As noted by Senator McPhedran in her question to the sponsor of this bill, this proposal was never taken up by CSC. Following its study of Bill C-83, however, the committee in the other place issued a recommendation strongly encouraging:

... the Correctional Service of Canada to consider alternatives to segregation in women’s institutions, such as the pilot program proposed in 2016 by the Canadian Association of Elizabeth Fry Societies.

A recent cost estimate by the PBO confirms that the EFry proposal would entail no significant incremental costs. The PBO identified the current cost to operate segregation units at $2.5 million per year per segregated unit. Bill C-83’s price tag for SIUs is pegged at an additional $7.5 million per year per unit. Considering the most recent data provided by CSC that three women were in segregation throughout the country, the price tag for maintaining segregation for women will be a whopping $3.3 million per woman per year.

SIUs have been touted as a safety measure, but it appears they could represent a direct threat to the health and security of prisoners, particularly youth, women, Indigenous and racialized peoples and those with mental health issues. Continued isolation, by any name, will only create and augment health risks, which will inevitably result in increased costs to health care. Given the harm associated with separation and isolation, whether it is called “segregation” or “SIUs”, and given that the costs of many alternatives would be only a small portion of both the resources currently allocated for the proposed SIUs as well as the additional health care costs continued isolation will generate, we should be asking why these alternatives have not been pursued, especially for those most marginalized and most severely affected by segregation.

Indeed, Bill C-83 risks extending the use of segregation. The Correctional Investigator notes that while there are currently a limited number of segregation cells in prisons, Bill C-83 gives CSC the power to designate other areas of the prison as SIUs, meaning that entire prisons could be run as an SIU or series of SIUs. In fact, as the Human Rights Committee has already observed, this is a trend maybe already in progress in all maximum-security prisons and units.

If we were to debate in this place a bill that purported to extend and normalize solitary confinement on nearly any other group of Canadians, we would expect our inboxes to be flooded with emails and our phones to be ringing off the hook. Yet for this bill, which targets the constitutional rights of some of the most marginalized and least able to make their voices heard, we have heard by and large a resounding silence. We have a duty on their behalf, honourable senators, to work together to uphold constitutional rights for all and to challenge the necessity of this bill.

Thank you. Meegwetch.

Senator, would you take a question?

Yes.

Thank you very much. I know that when the Human Rights Committee travelled and went to a number of prisons across the country it was an eye-opening experience for me. I had never been in a prison before. Not a lot of people take advantage of our positions in the Senate that we are able to do that. I would suggest to others who have never been that they might want to go.

We found out there were a high number of Blacks in prisons, a disproportionate percentage in Nova Scotia; there is an extremely high percentage of Indigenous peoples in the Prairie provinces; and unfortunately we saw a lot of people who had mental health challenges in the prison system.

You said in your speech that half the women in segregation have mental health issues.

If a prisoner has a mental health issue, and if they are put in segregation for long periods of time, what effect do you believe that will have on their mental health?

Thank you for the question.

Try to imagine what it would be like to be put in a room and not able to get out for a day, a week, a month, a year? How about two years? You can imagine what that would do to your mental health. I think it would cause a lot of anxiety and stress. People would definitely suffer greatly. Thank you.

Honourable senators, I had the opportunity a couple of days ago to speak to Bill C-375. I foreshadowed a number of comments that I have with respect to this bill, Bill C-83, in particular with respect to the both treatment of incarcerated individuals with mental health issues, and secondly, with respect to questions around constitutionality.

I wish to address those two issues in a more fulsome way, particularly the issues around constitutionality. If this bill is forwarded to committee from second reading, I would urge the committee seized with the study of the bill as a first order of business, to undertake an examination of the most recent court decisions and arrive at a determination on the probable constitutionality — or I would argue lack thereof — of this bill.

There were good intentions bringing this forward in a presentation Senator Boyer just referred to by Professor Allan Manson. He talked about if this bill had come forward a couple of years ago, it would have been a progressive step forward, it would have been not enough, but an important step. He outlined how it falls short today. I want to take you through the timeline because it’s important to the committee’s consideration.

Bill C-83 was introduced in the House of Commons in October of 2018. The House committee finished their report in December 2018, and third reading was concluded in March of 2019.

That’s important for us to understand because during that period of time — remember this was written and introduced last year — a number of things have happened. In fact since third reading a number of things have happened.

First of all, there is a B.C. case, BCCLA and JHSC vs. Attorney General of Canada. The trial decision was released in January of 2018 and the Crown has appealed that. That decision found elements contained within the bill to violate a number of important constitutional rights.

That was appealed and heard, I believe in November 2018. We are awaiting the appeal decision to be released.

The highest court that has reviewed the provisions, not of this bill, but of these particular issues of segregation, was in Ontario. There that was a CCLA vs. the Attorney General of Canada case. The court trial decision was appealed again by the AG. The appeal upheld the original judicial ruling and decision.

That was heard in November 2018 and that decision was released March 28, 2019. So all of this, in terms of the democratic examination, happened before this decision was released. I will talk about some of the standards in the decision and the view of that court why provisions that are still contained within this would not meet a test of constitutionality.

The third case I would refer to is called Brazeau v. the Attorney General. I believe it was a class action suit, but the decision was released March 25, 2019.

All of this was recent, and while I say there may well have been good intent, I think many of us would feel it fell short even then. Now we have a much more serious issue to grapple with as a Senate, and that is the likely constitutionality of the bill.

I say to all of us that we talk often about electoral mandates, and one of our highest responsibilities is to ensure constitutional and Charter compliance. I want to speak to that, if you will bear with me, in a layperson’s terms, because I am not a lawyer. I feel strongly that some of these elements are easily understood, particularly if you relate them to some of the cases we’re aware of, like Ashley Smith. This bill is, in fact, in part a response to that and previous court decisions that have ruled on some of the issues around segregation, which was once called solitary confinement back in my day in the Ontario jail system. Then it was called segregated administration, and is now to be called structured intervention units. Upon reading the bill, I think the court decisions have revealed why it still falls short.

There are three areas in which I want to give these tests. These come from the court decisions. The first area of failure is with respect to isolation. The courts have pointed to the danger of any time spent in isolation, particularly for those with mental health issues. The Ontario Superior Court noted:

The evidence establishes that the risk and the potential of psychiatric harm starts almost immediately after the doors are shut on the isolation cell, especially for those with pre-existing mental conditions.

The Ontario Court of Appeal concluded that:

In principle . . . those with mental illness should not be placed in administrative segregation.

As you know, I have a particular interest in and a focus on mental health issues, but I would argue that, with respect to many vulnerable populations, the court decisions also reflect on that and find similarly.

The second area where this bill fails to meet the constitutional requirements per the courts is the issue of how long an inmate is held in a segregation cell. We see a move from 22 hours a day in isolation to a requirement that be reduced by two hours a day to 20 hours a day for indefinite periods of time.

There is no guarantee in those additional two hours that there is meaningful human contact, programming or supports. The courts have specifically ruled that what is current practice and what is enshrined in this bill — the mandatory visit of a health care professional once a day in the accompaniment of correctional officers — is not, in fact, meaningful human contact.

The third area of failure is that of the overall duration in solitary confinement, administrative segregation or, now, ISUs. Bill C-83 allows for 30 days while reviews are going on and while an individual is being considered to be moved. Delay in moving and finding a place can cause an extra five days. Then there is a window for the commissioner to review and there are terms in the bill like, “as soon as practicable.”

The chance of a longer period of time exists and we have been told it can be more than 60 days. Remember, the court has found that the moment the door closes, the psychiatric harm begins.

Those decisions, which have all come since the consideration of this bill, make it important, I believe, for the committee to examine as a first order of business the Senate’s view of the constitutionality of this. In fact, some of the courts, and the Ontario Court in particular, have actually commented, in another venue, that the provisions in Bill C-83 do not resolve the problems that have been identified.

I’m not going to take a long time to speak because there are other speakers, but to bring us back to Ashley Smith’s case, as Senator Boyer stated, I won’t go into the facts. We know the facts, but I want to remind us all that her only human contact during the period of time she was in isolation was composed of violent and invasive uses of force by staff of the institution.

Correctional officers were urged to write off the suffering that she experienced in segregation as attention-seeking behaviour. Ashley was videotaped dying as correctional officers observed, but failed to intervene to remove the last ligature she tied around her neck. She had every right to believe that the staff had a duty of care and a duty to save her life. I believe, and I think we all believe, she had the right to expect that.

Her story is a tragedy. A 19-year-old girl was videotaped dying as correctional officers observed but failed to intervene, as I said. Unfortunately, it’s not an anomaly. I don’t think many of us could understand the lengths of desperation required to take actions that could harm oneself or lead to one’s death in order to resolve the craving for human contact that you have.

I have seen situations, and, in fact, I have a lasting moral injury from having observed and been a correctional officer in charge of a segregation unit for a period of time. I’ve seen situations that would be unthinkable for most of us to ever consider doing, but that people have done to get that human contact.

I believe that there is a moment here where we can rise to the examination of constitutionality without rejecting the good intent and purposes of the government’s legislation. We can find it falls short, but now we are charged with a duty, I believe, to assess the likely constitutionality of this legislation, and it is one of most important jobs that we, as senators, can do.

If this bill is referred to committee, I urge, as a first order of business, that the committee undertake a review of the court decisions and an examination of the constitutionality.

Thank you very much.

Yes, of course.

Thank you very much, senator. I neglected to thank you for your work as sponsor and bringing this bill forward for consideration.

The point I’m making in the B.C. case is that we have a written trial decision which, in and of itself, would suggest that this bill would not be constitutional. However, the Crown has appealed that, as is obviously within the rights of the Crown, and has not responded to that in this bill. The appeal has been heard but there has not been a decision rendered. In the Ontario CCLA case, we had the original decision. It found a set of findings that would lead us to understand that what’s in this bill would not be constitutional.

The Crown appealed that. The decision of the appeal court was only released March 28 of this year, after this had been dealt with in the other place, so it was not taken into account. That’s the highest court ruling we have.

I also mentioned the Brazeau case, which was March 25 of this year, and it also set out a number of these factors. When you examine the factors that I talked about — isolation, duration, length of daily confinement — and when you look at those issues that the appeal court and the trial decisions have rendered, you will see that this bill doesn’t reflect the current state of court decisions.

Senator, I agree with you. It’s a very important task for the committee to undertake.

Honourable senators, I rise today at second reading of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

Unfortunately, this bill should have garnered much more public attention, because I believe it is a very important bill.

I want to start by telling you that over the past few years, I have visited all of Quebec’s penitentiaries, and I am frequently in contact with the representatives of correctional officers. I can therefore say that I am quite familiar with the prison environment. I can also say that my view, or at least my criticisms of this bill, are related to my views about the victims who go unseen behind these incarcerated people.

Bill C-83 will have long-term negative consequences for offenders’ safety in prison, their rehabilitation, the safety of correctional officers, and the safety of victims and Canadians in general.

I have never claimed to believe that there has never been any abuse in the prison system. We have heard examples of how excessive reliance on this measure can lead to abuse. A general ban on this measure, or at least a restriction on its use, may also have negative effects.

I therefore think it is important that we address some of the issues raised in the bill, because they represent an unrealistic approach regarding high-risk offenders, and this could jeopardize the safety of Canadians and, I must repeat, that of correctional officers.

While the mental health of federal inmates definitely needs to be taken into account when imposing segregation, it is also important that all decisions related to their detention or release be based on the fundamental priority that should be given to the safety and protection of prison guards, workers and other inmates.

Bill C-83 puts the concept of “least restrictive” measures back into the Corrections and Conditional Release Act. This means that high-risk offenders will be incarcerated at the lowest possible security level consistent with public safety. The concept of “least restrictive” measures had been removed from the legislation in 2010 with the passage of Bill C-10. At the time, victims welcomed that important change, as did corrections staff.

When he appeared before the Committee on Legal and Constitutional Affairs on February 24, 2012, Rob Sampson, the former minister of correctional services for the Government of Ontario and a former member of a working group on correctional reform, had this to say about removing the concept of “least restrictive” measures:

It means that the security level that the inmate would be held to under the proposed legislation would be the security level that is appropriate to match with the correctional plan that has been established to help them get better and change their life around so when they get back to society they are ready to live a normal life and live in society. It does not mean it is a statutory-driven security level. It is the security level that is appropriate for the individual.

Instead of trying to put everyone in the same box, you establish a security level that is appropriate for the individual.

That is just common sense.

Reintroducing that term into the act would definitely make it harder to keep offenders like those who murdered little Tori Stafford in a maximum-security institution. When the McClintic controversy erupted, Minister Goodale stated that the government was sensitive to the concerns of people who objected to lowering that offender’s security classification.

So I was surprised by the reintroduction of the term “least restrictive measures” into the bill. This completely contradicts what the Minister of Public Safety said. In fact, it proves that this government has abandoned victims and prefers to release criminals like Terri-Lynne McClintic no matter the cost.

It has also abandoned correctional officers, who risk their health every day to protect us and to protect society.

Terri-Lynne McClintic was transferred to a healing lodge, which is a minimum-security institution. An amendment proposed by the Conservatives in the other place would have ensured that someone like Terri-Lynne McClintic, who was convicted of kidnapping, raping and savagely beating eight-year-old Tori Stafford to death with a hammer could not be placed in a healing lodge, where children might be present and where escape and flight would be possible. Even worse, an amendment requiring that the minister be notified in writing at least 15 days before the assignment of a new security classification was also rejected.

This tells me that the government does not pay attention to the testimony heard by the House of Commons Standing Committee on Public Safety and National Security, or to the concerns Canadians raise about public safety, or to the concerns of Tori’s father and relatives, who have also been condemned to what I would call a life sentence.

The use of the expression “least restrictive measures” creates a presumption that detention conditions should always be less restrictive. It also assumes that decision-makers will grant early parole, including temporary absences from prison, day parole and full parole.

Some senators will certainly agree that this is a good idea. However, we must not forget that the most important aspect of any potential release under the Corrections and Conditional Release Act is risk. A prisoner may have committed the most heinous crime and may even refuse to admit guilt. However, under a system that uses the least restrictive measures, if it cannot be proven that the prisoner poses a risk, he or she could very well be released .

The government refuses to admit that this is a reality. This does not even include the other very serious issues raised with other parts of the bill.

For example, Bill C-83 will limit the tools available to Correctional Service Canada to ensure basic safety.

Last month, Jason Godin, the national president of the Union of Canadian Correctional Officers, told the Standing Senate Committee on Human Rights the following about Bill C-83:

Eliminating disciplinary and administrative segregation will significantly impact the ability to maintain control over diverse populations. We accept that an overreliance on segregation as a disciplinary consequence may lead to negative outcomes. However, there are incidents in which swift and immediate responses to dangerous behaviour are necessary options.

It is also a question of managing inmates. Again quoting Mr. Godin:

. . . the inability to adequately manage incompatible inmates will lead to consequences like those seen at Archambault and Millhaven institutions where inmates were murdered in separate incidents in early spring 2018. . . .

He also added the following:

The reduction in our ability to manage the most difficult cases securely through segregation when necessary will only further exacerbate already dangerous work environments for correctional officers. I mentioned earlier two inmates were murdered in 2018 in treatment centres. I have not seen that in 27 years.

Mr. Godin informed us that following the adoption of Commissioner’s Directive 709, Administrative Segregation, and CD 843, Interventions to Preserve Life and Prevent Serious Bodily Harm, segregation policies had already been modified. He suggested that those policies significantly reduced CSC’s ability to manage its institutions through the use of segregation. He added:

Although well-intended, these quickly led to a sharp increase in violence within federal penitentiaries.

Now the government is proposing taking this even further under Bill C-86, while offering correctional officers few if any alternative measures to ensure their safety. Violence will therefore increase. The creation of structured intervention units will allow inmates to interact with other inmates for at least two hours, as well as spend four hours outside their cells. Despite the good intentions that led to these changes, Jason Godin feels that they are unrealistic with the current number of employees and the existing infrastructure. Our penitentiaries are not well-suited to this bill.

The measures in the bill will make correctional institutions more dangerous for prison guards, correctional workers, other inmates and inmates placed in segregation for their own protection. One consequence may be that more high-security prisoners would be incarcerated in minimum-security institutions. Specifically, the proposed legislation would have an impact on inmate transfers and would enable the commissioner to assign a security classification to each area of a penitentiary or even to each cell. That means every cell could have a different security classification. That is completely illogical.

If interactions among inmates of different security levels are not controlled, there is likely to be more drug trafficking and more conflict among inmates. A member of the Hells Angels and an inmate with another security level cannot be together. That would be totally absurd. Clearly, this bill was conceived by office-bound bureaucrats, not people on the ground. In a maximum-security penitentiary like Port-Cartier, nothing gets in and nothing gets out because all the prisoners are in a high-security penitentiary. There is a reason for that. They are the most dangerous people in the country: Paul Bernardo, members of the Hells Angels, and so on.

The Conservative members decried the fact that Bill C-83 does not contain any measures to prevent a high-risk offender from being incarcerated in a minimum-security prison. I am very concerned about the direction this government is taking in its corrections policy. We are taking a step backward by seriously jeopardizing the health of corrections staff. I am completely opposed to any policy that would increase violence in our prisons, and I think that the vast majority of Canadians would agree with me on that.

Instead, we need to strengthen measures and tools that focus on rehabilitation and encourage education and work. This bill will not help rehabilitate inmates. On the contrary, it will increase burnout and absenteeism among staff.

It is clear from reading these measures that the Liberal government is more concerned about the rights of inmates than the rights and protection of victims. However, even the rights of inmates are not protected under Bill C-83, according to Jason Godin, who pointed out in his testimony that inmates are killed in our prisons because of less stringent rules about segregation.

It is essential that public safety be at the heart of any measures we introduce in our criminal justice system. I do not believe, however, that public safety was duly considered in Bill C-83.

Honourable senators, I hope that you will join me in opposing Bill C-83 as long as countervailing measures are not put in place to protect the safety of our front-line staff in correctional institutions. Thank you.

Would the senator take a question?

Yes.

Thank you very much for your work and the extent to which you have researched this area.

I was very happy to hear you say that you completely disagree with anything that will decrease rehabilitation and increase violence in prisons. I’m sure you’re aware that the genesis of the current corrections legislation that included “least restrictive measures” when it was passed was actually in response to and generated during a previous Conservative government. Then MPs David Daubney and Rob Nicholson recommended a human rights style of corrections legislation that would assist in the reduction of the number of people in prison, particularly Indigenous prisoners, women and those with mental health issues, which was just emerging as a focus.

Then in the mid-1990s, all the heads of corrections in this country, including a former member of your caucus, made recommendations that we could release at that time 75 per cent of the people then in prison across this country in federal, provincial and territorial jails and not increase the risk to public safety.

Most recently, the Office of the Correctional Investigator has released information showing that we now have the highest staff-to-prisoner ratio in the world, and that all of the evidence shows that the more security measures used, the more there’s a heightened risk of violence to both staff and other prisoners; a reduced access to programs and services; and a reduced structured gradual release into the community, which is the safest way in terms of public safety concerns as well as the rehabilitative concerns for those who enter the community.

Senator Boisvenu, have you had an opportunity to look at the research that’s been done and to look at some of the recommendations some of us have been involved with about how we can better assist victims in ways that wouldn’t necessarily mean creating a situation of people coming out of prison worse than when they went in?

Deinstitutionalization is a phenomenon I have been interested in for 15 years. Deinstitutionalization has been steadily decreasing since 1972, and incarceration has been steadily increasing since 1972. These two trends are proportionally inverse to one another. Today, we are told that nearly 30 per cent of men and over 40 per cent of women in federal institutions have mental health problems.

Obviously, the choice of institution is very important. I agree with you that a good many of the people in the penitentiaries should not be there. Instead, they should be in supervised housing, where people have some structure in terms of curfews and taking medication and so on. We know that under those conditions, the rate of recidivism drops by 90 per cent.

Unfortunately, provincial health care budgets and the budgets for the Canadian prison system are not aligned. They need to linked. To keep a person with mental health problems in a federal institution costs $200,000 a year. To keep that same person in supervised housing costs $50,000 a year. That means that for the cost of keeping someone with mental health problems incarcerated, we could care for four people in supervised housing.

However, I have to wonder. Prisons now house a large number of inmates with mental health issues. What would happen if the Institut Philippe-Pinel, a well-known mental health care institution, said that it would no longer put patients in segregation? It would be impossible for the doctors and other staff members to manage. In general, our prisons are not just responsible for rehabilitating criminals anymore. They also have the job of treating people with mental illnesses. I have a background in psychology, and in the mental health sector, segregation is a tool used to protect patients from themselves and from other patients, especially if the other patients are violent. Right now, what we are seeing in federal penitentiaries is that inmates with mental illnesses are often victimized by real criminals.

With the bill before me, I am very concerned that there will be more violence, because the essential tool of segregation will no longer be available. Segregation will now have to be assessed on an individual basis, because every inmate has a different psychological profile.

If we stopped using segregation in prisons tomorrow morning, the psychiatric problems would get worse. There are two types of inmates in penitentiaries: those who should be in health centres, and those who really belong in penitentiaries.

If we take the tool of segregation away from guards and correctional officers starting tomorrow, I have no doubt we will see a proportional increase in violence. That’s why I believe we must be very careful.

I have another question, senator. There is much that you said in your response to Senator Pate’s question that I would agree with. However, towards the end, when you were talking about segregation and protection of people with mental illness and using segregation for that tool, I point out there’s a vast difference between protective custody and segregation as we know it. We also have examples of forensic institutions as well. I wonder if there are alternatives to the administrative segregation that are now proposed that you would consider would meet the concerns that you’ve raised.

I think your question gets to the heart of the matter. I attended some of the meetings. I remember at the other place when the union of correctional officers came to testify. They were asked a question at the very end and there was not enough time for any discussion. They were asked whether they had any alternatives to administrative segregation. They said no, they did not. That is the problem. If we decided tomorrow to get rid of administrative segregation and there is no alternative then I think we are only making matters worse.

Let’s find alternatives to administrative segregation and reduce segregation, but in many cases, as the officers tell me, that is the only tool they have to deal with highly dangerous offenders.

Would the honourable senator take another question?

I seem to be popular.

Thank you very much.

Like Senator Lankin, I was pleased to hear a number of your comments. I want to focus on the issue raised around de‑institutionalization because certainly regarding the progressive changes and rending of our social safety net that have resulted in more people being in prison rather than in social programs, much of it falls under provincial jurisdiction.

Senator Boisvenu, would you be supportive of looking at some of the ways that the federal government and we as parliamentarians could assist the federal government to develop the kinds of national strategies and standards for the delivery of services in exchange for the tax agreements and transfer agreements that exist to develop those varied kinds of strategies? In fact, in Bill C-83, one of the areas that is also diminished is exactly what you discussed, the ability to transfer those with mental health issues under section 29 of the Corrections and Conditional Release Act to mental health facilities. Is that something you would be interested in pursuing or working together on?

Here’s an easy way that costs nothing. Everyone knows about the At Home/Chez soi program. There are programs in Toronto, New Brunswick and Quebec. As I said earlier, instead of putting offenders in prison, and for some individuals released from prison, the program sets people up in “controlled” environments. A nurse takes care of patients and gives them their medicine. There’s an 11 p.m. curfew, and people get used to working in society. The recidivism rate dropped by 90 per cent. There is a way.

Keeping 10 people in prison costs us $2 million. I would urge the Minister of Public Safety and the Minister of Health to look at how much money we might save by taking those 10 people out of prison. They could reallocate the funds to homes for people with mental health issues. It would cost us nothing; we could even have fewer people working in prisons. The ministers need to create that kind of program.

I get requests from organizations in Sherbrooke and Quebec City that want to take in these people and open this type of centre but don’t have the funding. The money is going to the prisons. Let’s take some of the money that is going to prisons and use it to get those people out of the prison system and into a controlled environment where they are monitored and where there are people to take care of them so they are not out on the streets. Right now, two out of three police interventions at night in Montreal involve people with mental health problems.

Right now, the streets are the only new care centre available to people with mental health problems. There are things that can be done at no cost. We just need to sit down with the two ministers, pool our resources and build centres for these people.

Senator McPhedran, on debate?

Honourable senators, I rise to speak to Bill C-83 on the corrections system and conditional release. I have a number of concerns about this bill and its potential consequences.

Medical experts have documented beyond all doubt the severe psychological harms that result from placing a human being in solitary confinement. The harms associated with isolation begin almost as soon as a cell door closes. The Ontario Court of Appeal has now found that these harms amount to such cruel and unusual treatment or punishment that they violate the Constitution. International standards recognize that more than 15 days of solitary confinement amounts to torture and that no one with mental health issues should ever be put into solitary confinement.

Despite its well-intentioned promises of a more progressive approach, of more programming, of more human contact, as other colleagues have outlined, Bill C-83 perpetuates the same unconstitutional conditions of isolation as the system of segregation it purports to replace. The rationale is unclear as to why Bill C-83 was not drafted to uphold human rights by putting an end to this practice, but we were alerted by this bill’s sponsor of the spectre of shutting down administrative segregation, resulting in a problematic and precarious environment, and to quote:

. . .beyond my and your comprehension . . .

— if we stray too far from the current system of segregation. This was the rationale we heard. Yet we have heard little recognition that this system’s torturous and even fatal consequences make it a direct threat to the security of prisoners.

Honourable senators, while denial of these harms may help supporters of the bill to sleep more soundly at night, it is our duty to consider the experience of those locked in segregation cells and to insist on alternatives to their continued suffering in torturous conditions.

Indeed, just this week a lawyer wrote to a number of our honourable colleagues, imploring senators to act to assist her segregated, mentally ill Indigenous client. Thanks to the intervention of Senator Dyck and the Federation of Sovereign Indigenous Nations, what could have been a tragedy was averted.

To examine the dangers of the entrenched, rights-denying, security-centric mindset this legislation reinforces, by sending this bill to committee there will be an opportunity to critically examine the loopholes in Bill C-83 that Senator Klyne acknowledged were of concern to the committee in the other place.

Where else but in a prison would we ever have to specify the time someone is allowed to spend outside should not be provided in the middle of the night or that meaningful human contact does not include conversations through a mail slot?

These amendments are not worth celebrating. These are not least restrictive measures. Rather, they are proof of the lack of human rights protections within prisons and the challenges of attempting to legislate respect for human rights in an environment that lacks effective measures for remedial oversight.

Let’s avoid denial and delusion afforded by our privilege as parliamentarians who get to visit prisons and then return to the comforts of our lives by walking out of those prisons. How many more legal challenges, inquiries, deaths and inquests do we need to confirm that Correctional Services Canada cannot uphold these standards on their own?

We have an opportunity to follow through on the recommendation for correctional oversight that former Supreme Court Justice Louise Arbour made more than 23 years ago, following her Commission of inquiry into events at the Prison for Women in Kingston when she noted, “The Rule of Law is absent, although rules are everywhere.”

The Office of the Correctional Investigator’s report into the preventable death of Ashley Smith, of which we heard much heartbreaking detail from Senator Lankin today, concluded:

There is reason to believe that Ms. Smith would be alive today if she had not remained on segregation status and if she had received appropriate care. An independent adjudicator — as recommended by Justice Arbour — would have been able to undertake a detailed review of Ms. Smith’s case and could have caused the Correctional Service to rigorously examine alternatives to simply placing Ms. Smith in increasingly restrictive conditions of confinement . . .

— that often seemed to be entertainment for the guards watching her 24 hours a day.

Even when decisions to charge, shackle, pepper spray, isolate, transfer or otherwise restrict prisoners and make sentences harsher than the ones originally ordered by judges, prisoners have no entitlement to seek a sentence review.

High levels of media attention brought awareness of the Ontario court decision to stay murder charges against a young Indigenous man, Adam Capay, in light of the egregious conditions of isolation he endured for four and half years while awaiting trial.

There is currently no comparable post-sentence remedy. Correctional accountability requires robust judicial oversight as well as effective remedies. We need as a society and prisoners deserve judicial oversight of Corrections, especially when correctional authorities interfere with the integrity of sentences by rendering the conditions more punitive.

This is one of the key reasons, contrary to Senator Klyne’s assertion in his speech to us, committee witnesses in the other place seriously questioned segregation units. Whether or not segregation units are relabelled, they will remain a product of the same failed approaches that have resulted in conditions of isolation that violate constitutional guarantees and international standards against cruel and unusual treatment and punishment, conditions that pursuant to international law can amount to torture.

The Ontario Court of Appeal has now ruled that “The distinguishing feature of solitary confinement is the elimination of meaningful social interaction or stimulus.”

The government has said it is serious about upholding the human rights of prisoners. If that is the case, the government should not be asking Canadians to trust that Bill C-83 will end segregation without credible external oversight that needs to be set out in this bill.

The approach the government has chosen is not one that will uphold human rights in practice. It will not make it possible for prisoners to live their rights. Yes, in our constitutional democracy prisoners have rights.

Instead, expert evidence and recommendations would be ignored. This bill fails to deliver long-overdue changes to the prison system by renaming segregation and removing the existing, albeit woefully inadequate, procedural safeguards instead of eliminating segregation and introducing effective safeguards.

Thank you, meegwetch.

Yes.

Thank you for the question, Senator Klyne, and thank you for your work in sponsoring the bill.

We all appreciate the fact that being a sponsor of a bill does not mean that one has to support every single element of that bill. I think you’ve raised some very important questions. I know that you spent considerable personal time during the break visiting prisons. It is much appreciated.

I think the international standards on segregation are violated in this bill. They are not being upheld in the way in which the bill has been drafted.

Honourable colleagues, some of you may perceive segregation and the proposed structured intervention units or SIUs in Bill C-83 as a certain type of prison cell, a certain number of hours and a certain number of days. These abstract terms do not paint a true picture of the horrific consequences of a system that will continue to give Correctional Service of Canada staff the discretion to indefinitely isolate some of the most vulnerable people in solitary confinement.

Over four decades, I have spent countless hours kneeling on cement floors outside segregation cells, pleading through meal slots in solid metal doors as someone’s loved one — someone’s child, sibling, parent or partner — smashed their heads against cement walls or floors, slashed their bodies, tied ligatures or put nooses around their necks, tried to gouge out their own eyes, mutilated themselves in sometimes unimaginable ways, or smeared blood and feces on their bodies, windows and walls. I have heard indescribable sounds of torment and despair that reverberate and haunt me.

I believe this bill is well-intentioned. I applaud the minister’s stated willingness to end the use of segregation. Unfortunately, this bill does not. Nor does it include even the minimal measures the courts have deemed necessary to prevent the human rights violations of isolation units, by any name, from descending into conditions that amount to torture.

Many have voiced their concerns that Bill C-83 is unconstitutional, from the Ontario Court of Appeal to over 20 legal academics, experts and practitioners. Allow me to briefly summarize some of the reasons this bill amounts to an unconstitutional renaming and perpetuation of segregation.

First, there is no guarantee that an additional two hours out of a cell will constitute meaningful or any human contact. The bill provides prisoners “an opportunity” to have an additional two hours out of a cell in SIUs. If prisoners are only allowed out of cells alone in restrictive spaces, two hours more will not alleviate conditions of isolation in solitary confinement.

Second, the UN Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules and the Bangkok Rules for women, demand evidence of meaningful contact. The CSC’s near limitless discretion offers little assurance that conditions of confinement in SIUs will meet our Charter or international guidelines.

Third, the bill contains no requirement or plan for oversight. Despite ongoing failures to abide by the law, the CSC asks us to accept that it will uphold such standards in the future.

More than 23 years ago, former Justice Louise Arbour recommended judicial oversight of CSC in order to prevent human rights abuses associated with segregation. It’s time to make this a reality.

Fourth, aside from a new name, Bill C-83 does not mandate any actual alteration of solitary confinement units or cells. Worse still, the bill makes it possible for the expansion of highly restrictive conditions and routines throughout entire prisons.

Fifth, the bill does nothing to eliminate or even place hard caps on isolation and separation. The predictable consequence is that some people will continue to spend days, weeks and even years in uninterrupted solitary confinement.

The bill is premised on the view that some form of segregation by some name is a necessity to the detriment of other human-rights-affirming options. It is not. As senators, I believe it is our duty to consider the alternatives before supporting a bill that is by many accounts unconstitutional.

Prisons across Canada have operated smoothly for months, even years, without segregation units. In my working experience alone, the Dorchester Penitentiary operated without a segregation area while it was being retrofitted. For five years after abandoning its attempt to open a 34-bed, segregated, maximum‑security unit for women in the Kingston Penitentiary for men, CSC operated with no maximum security unit and no segregation for federally sentenced women in Ontario.

When the Standing Senate Committee on Human Rights studied the rights of prisoners, we heard testimony about other prisons such as Fraser Valley, another federal prison for women, which operated for 18 months with no segregation or maximum security unit, using only minimum- and medium-security houses.

During my time with Elizabeth Fry, my children sometimes accompanied me during prison advocacy visits. During my infant daughter’s inaugural visit to the segregated unit for women in the Saskatchewan Penitentiary for men, the head of security advised he was planning to dispatch the emergency response team to respond to women who were screaming, yelling threats and banging the bars of their cells. I asked what was going on. I had met with the women in that unit earlier in the day — they were all Indigenous. I advised that, although they were upset about the lack of programming and lack of spiritual support, they were calm when I left. They had agreed to address their issues by submitting a group grievance.

I offered, first, to return to the range, prior to the riot squad being deployed, to find out why the situation had escalated. The staff agreed. One suggested, “Why don’t you take the baby down? I hear they like your baby.” How serious could the risk posed by the women have been if the head of security believed a baby could calm the situation?

Opportunities to use alternatives to draconian security measures exist. Yet too often, honourable senators, we fail to consider these options. Incidentally, the situation had needlessly escalated because the staff had not delivered grievance forms despite repeated requests from the women.

I’m still called by staff in federal prisons. Not long ago I was called by an officer trying to defuse a potentially volatile situation. A mother was distressed because her request to attend her child’s funeral had been denied. Despite being urged to do so, the staff member chose not to deploy the institutional emergency response team, not to pepper spray, not to body-shackle and not to segregate the woman. Instead they provided support, worked with her peers and provided telephone calls to family members and others. The potential standoff ended without incident. The administrative decision was corrected and she attended the funeral two days later.

Although correctional authorities often cite prisoner and staff safety as a justification for isolating prisoners, the majority of men and women who are isolated are those with disabilities including mental health and age-related mental and physical infirmities that leave them acutely vulnerable. The use of segregation to provide protective custody for some who are so compromised that they pose no risk to others should not be accepted.

Imagine the exacerbation of dementia symptoms and other damage that might be caused by isolating your parents or mine in small, locked units. We should contract beds in psychiatric and seniors care facilities, not segregate vulnerable people.

There are better, more effective ways to achieve the public safety and rehabilitative objectives of CSC than by simply renaming segregation. The Parliamentary Budget Officer projects that the annual cost of implementing Bill C-83 will be $1.8 million per prison for men and $1.5 million per prison for women. Most of the cost is for additional correctional staff.

CSC already has the highest staff-to-prisoner ratio in the world. Imagine if those funds were instead put into the community-based supports — as discussed by Senator Boisvenu and others — to not only uphold basic human rights but to make profound differences in the lives of prisoners, their families and others who are marginalized and victimized.

Honourable senators, I do not believe this bill should go forward. That said, I recognize that colleagues will want the opportunity to hear evidence and witnesses before coming to their own decision about this bill.

If this bill continues beyond second reading, honourable senators, I expect you to make two commitments: First, commit to go into prisons and to meet with those isolated in segregation units before you decide on this bill.

Pursuant to section 72 of the CCRA, the Corrections and Conditional Release Act, each of us in this chamber and the other place has the right of access to federal penitentiaries including segregation units. A highly respected appellate court has taken the unusual step of giving us a clear indication of constitutional flaws in this bill. If we pass an unconstitutional bill, we must take individual and collective responsibility for authorizing and sanctioning tortuous conditions in prisons. I cannot and will not abandon my responsibility and assuage any residual guilt by hoping that a prisoner will be able to mount some future legal challenge to this new system. Such a legal challenge would take years and resources that prisoners in segregation simply do not have. We have a responsibility, honourable colleagues, to end this egregious situation.

This bill poses a near-certain violation of the human rights of marginalized and criminalized individuals. Our constitutional role as senators to safeguard the Charter and represent minority interests requires serious and thoughtful study based on evidence about conditions in segregation. This is evidence uniquely hard to gather.

The second commitment is to return regularly to prisons to monitor conditions of confinement. If passed, Bill C-83 will leave few remaining ways to uphold and ensure respect for human rights of those in segregation or SIUs: no judicial oversight, increased delays before inadequate mechanisms that rely on discretionary authority for oversight to kick in, and further barriers to community and advocates. In such an environment, our section 72 right of access to prisons would take on an urgency and provide one of the few remaining ways to seek to hold correctional actors accountable.

Honourable senators, Bill C-83 renames segregation and solitary confinement without any further meaningful change. As colleagues who spoke before me have outlined, we know from the experts what real change would look like if we truly want to end separation and isolation by any name.

With this mind, I want to close by dedicating this speech to all those who have survived as well as those who have languished and those who have died — too many, like Ashley Smith, by homicide, in segregation, in this our country.

Instead of passing Bill C-83, I urge us to work on Tona’s Law. Tona is a woman with whom members of the Senate Human Rights Committee met during our visit to a forensic psychiatric hospital in the Atlantic region. Tona described her 10 years in federal custody, all of which she spent segregated for what was characterized even by institutional psychologists as attention-seeking personality and behaviour issues. It was not until she was transferred into the mental health system that she was diagnosed with schizophrenia. Moreover, her elevated states of psychosis have now been directly linked to her extended periods in prison segregation cells and the post-traumatic stress associated with the tortures of such isolation.

Tona implored us to take legislative action to end segregation and get women and people with mental health issues out of prisons and into appropriate mental health services. Tona is far from the only person to advocate such a change. The inquest into Ashley Smith’s death, Louise Arbour and the 1996 Commission of Inquiry into certain events at the Prison for Women in Kingston, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Canadian and Ontario Human Rights Commissions, the Canadian Medical Association, the Canadian Association of Elizabeth Fry Societies, the Native Women’s Association of Canada, and the DisAbled Women’s Network of Canada — they have all recognized solitary confinement and segregation as deeply inhumane practices, particularly for youth, women, racialized and Indigenous prisoners and those with mental health issues.

The bill before us today is not Tona’s Law. Despite best intentions, it risks being a series of empty promises extended to those who have worked and waited far too long for recognition of the human rights that most of us take for granted.

It is time to reject this bill and work for meaningful change.

Thank you. Meegwetch.

Honourable senators, I want to add my voice to the debate today because I think this bill raises a very important issue. It tests our concept of humanity.

Have you ever visited a protective society against animal cruelty? You enter the shop and you see all those cages and the animals there, the cats, dogs and the other pets — animals that people like to have in their homes. You look at them and try to decide which one you are going to pick up, but they are caged. They are behind bars, and, behind bars, they are at the mercy of those who take care of them.

When we decide as a society through our court system to order a human being to go into prison, we order them to be caged. Once they are caged, everything they might do falls under the control of those who have the keys. The conditions under which they will be caged are essentially how we test our humanity as a society.

When you put a mentally ill person in a cage, or somebody who has symptoms of mental illness that are not detected, most of the time you trigger the manifestation of those deficiencies. When you put Aboriginal people in a cage because you think that they are always in a society that can’t value what they have been and what they should be, you also cage people. Why do you cage them? It is because they are defenceless. When you are mentally ill, you are not a human being who is the master of all your capacity. When you are an Indigenous person in our society, you also have a chance of being caged because you don’t defend or affirm yourself enough because you have been deprived of your identity, your freedom of being who you were, because for 150 years our policy has been to impose on them a way of being that they were not born to have.

This bill raises important constitutional issues. I’ll tell you why. When this bill was drafted some years ago, the government could have benefited from the enlightenment of the court in the decision of British Columbia and the Ontario Court of Appeal. We are faced with this dilemma. The bill was drafted when the Charter had not been interpreted to determine the level of humanity that we have to protect when we put people in the cage. Why do we have a Charter? We don’t have a Charter just to move around. We have a Charter to protect those who fall under a condition whereby their freedom is determined by others. There are three sections in the Charter that are at stake in this bill.

I will read section 7 to you, and as I do, think of this concept of caging somebody. Section 7 reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

“Except according to the principles of fundamental justice,” and what are the principles of fundamental justice that are at stake when you put somebody in solitary confinement? The Ontario Court of Appeal has determined the three criteria to test. That’s what I want the Social Affairs Committee to test with this bill.

The first test is the function of duration. How long can you put somebody in the cage? Is it five days? Is it 30 days? Is it 60 days? The court has determined that segregation should not exceed 15 consecutive days. What does Bill C-83 say in the terms of number of days? This is the first important element. Why? It is because the court stated it:

The effect of prolonged administrative segregation is thus grossly disproportionate treatment because it exposes inmates to a risk of serious and potentially permanent psychological harm.

The duration is the first important factor.

The second, as the court says, is the indeterminacy and inadequacy of the monitoring mechanism. In other words, when you put somebody in the cage, you have to monitor the person. That means that somebody has to go there meaningfully, and Justice Arbour has stated how that has to be judicialized. It is not somebody opening the small window and trying to see if the person is there and not dead. That is not a monitoring mechanism. The monitoring mechanism has to be made in respect to the principle of fundamental justice that I just read in section 7 of the Charter.

The third element, and it is fundamentally essential, is section 15 of the Charter, which deals with Indigenous people and mentally ill people. When you are deprived of your liberty, you are at the mercy of somebody else, and when that person exercises control over you, he or she cannot make a distinction and has to take into account if you are in a weaker position to state your rights as mentally ill and Indigenous people are in prisons.

Honourable senators, I hope that the Standing Senate Committee on Legal and Constitutional Affairs will read the decision of B.C. and Ontario with the criteria that the court has identified, the sections of the Charter that are at stake in this bill, and report to us at the report stage if those criteria are satisfied in the bill as drafted before we have the benefit of the court interpretation of the Charter sections in relation to solitary confinement.

Honourable senators, this is our job. That’s why we are here. We are here to test the legislation according to the best and most recent legal expertise and judicial pronouncements in relation to the protection of the freedom of the weakest in our society. That’s why I’m telling you that this is the test of our concept of humanity. It is at stake when we have full control over a human being who we put in prison and lock the door.

Honourable senators, think about it twice — sober second thought in relation to this bill — because we have control of the level of freedom of the weakest of our society in this bill that was well-intentioned when it was drafted. I submit to you respectfully and personally that the judicial interpretation has evolved since the time this bill was drafted. We need to adapt it to the level of understanding of what humanity is as protected in the Canadian Charter of Rights and Freedoms. Thank you, honourable senators.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

(Motion agreed to and bill read second time, on division.)