Corrections and Conditional Release Act

Bill to Amend--Thirty-fifth Report of Social Affairs, Science and Technology Committee Adopted

June 11, 2019


Honourable senators, I rise today to speak on the thirty-fifth Report of the Standing Senate Committee on Social Affairs, Science and Technology on Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

What I find concerning about the report is similar to my general concern with this bill. I am concerned that there is an underlying narrative in this legislation which has tended to tone down the security risks and dangers that often exist in our correctional institutions. These dangers threaten both correctional staff and inmates alike.

I wish to refer to some statistics. According to the Office of the Correctional Investigator, 80 per cent of male offenders have substance abuse problems and as many as two thirds were under the influence when they committed their index offence. This increases the challenges of managing these offenders in our institutions.

About 10 per cent of the total offender population, both those incarcerated and those serving sentences in the community, are gang affiliated. In some parts of the country that percentage is much higher, posing a significant threat to institutional security, to the safety of the staff and to the safety of the inmates.

Obviously in my speech I can only provide a snapshot of the security risks. However, the reality is that our federal institutions are dangerous places filled with people who have often committed terrible crimes. I am speaking with a heavy heart, especially given that we are going over cases of bestiality this week in the Social Affairs Committee. I am concerned that the bill is a reactive response to judicial pressure. It seems very doubtful that it will make our institutions safer.

When Jason Godin, who represents the Union of Canadian Correctional Officers, testified before the Standing Senate Committee on Human Rights a few months ago, he stated:

. . . Bill C-83 also seeks to amend the manner in which the most difficult portions of institutional populations are managed. Structured intervention unit inmates will be provided with the opportunity to interact with other inmates for at least two hours, as well as the right to spend four hours outside of their cells. While these changes are undoubtedly well intended, they are not feasible under current staffing and infrastructure models.

Mr. Godin represents staff in these institutions, individuals with first-hand knowledge and experience. They are the ones forced to deal with the reality of what Bill C-83 will usher in. I note the committee report on the bill narrowly addressed the issues raised by Mr. Godin.

What is most surprising is that Mr. Godin actually testified at committee that inmates have already died as a result of more liberal segregation policies introduced in 2017. Specifically, he said:

Many of the inmates currently managed within segregation units are highly vulnerable and are segregated for their own protection. In order to provide them with the amount of interaction prescribed within the new bill, they will require direct and constant supervision from already limited numbers of correctional officers. Conversely, the inability to adequately manage incompatible inmates will lead to consequences like those seen in Archambault and Millhaven institutions where inmates were murdered in separate incidents in early 2018.

I know that Senator Poirier raised this issue with Minister Goodale, but I don’t think she received a satisfactory response. Is this matter referenced in the report of the committee? No, it is not. Colleagues, I must say that I am disturbed by this bill and by the committee report.

In my view, the bill and the report engage in considerable wishful thinking. Unfortunately, it may be correctional staff and, even more so, offenders who suffer from the bill and its provisions. The government is not firmly standing for the need to put the security and safety in our institutions first. In our view, that should be the first priority as a country. For that reason, I must oppose both the report and the bill itself.

Thank you.

Hon. Pierre-Hugues Boisvenu

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

This bill has serious and as yet incalculable consequences not only for the safety of Correctional Service of Canada employees, but also for the safety of the Canadian public and, of course, the victims.

I would first like to point out that it is unacceptable for a committee to study such an important bill without inviting any victims. Even the Ombudsman for Victims of Crime in Canada was not invited to appear before the committee.

All Canadians want is a correctional service that protects them, keeps them safe and rehabilitates those who truly want to be rehabilitated. Think about it. This bill will affect the release of federal inmates with sentences of more than two years. We are talking about offenders who committed serious offences and are serving their sentences in a prison other than a provincial prison. I repeat that no victims were asked for their input. However, Jason Godin, the outgoing national president of the Union of Canadian Correctional Officers gave some important testimony. He represents 7,300 workers who risk their health every day doing their job in the Canadian prison system. The corrections officers that he represents have a very difficult job, but their work is essential for you, for me and for the entire country. Mr. Godin deals with offenders convicted of serious crimes every day. He spoke on behalf of those who work to keep us safe 24 hours a day, 365 days a year. If we pass the “least restrictive” measure we will be taking a step backwards.

The president of the Union of Canadian Correctional Officers said the following about the introduction of Bill C-83, and I quote:

 . . . CSC will further struggle to achieve its mandate of exercising safe, secure and humane control over its inmate populations.

Mr. Godin used the word “humane” because he said he was concerned about the significant change made to this bill, including the adoption of the “least restrictive” measure, which seems to limit the possibility of temporarily placing an inmate in segregation, either for their own safety or the safety of staff.

Are the safety of staff and the safety of inmates not essential if we want to protect the public and rehabilitate people who truly want a second chance? The president of the Union of Canadian Correctional Officers mentioned having witnessed the unintended impact of the correctional policy changes, including correctional directive CD 709 on administrative segregation. That policy ensures that the administrative segregation of an inmate occurs only when specific legal requirements are met and that restrictions are based on the least restrictive measures to meet the objectives of the Corrections and Conditional Release Act.

To quote Mr. Godin again, these measures:

. . . significantly reduce CSC’s ability to manage its institutions through the use of segregation.

Mr. Godin added:

Although well intended, this quickly led to a sharp increase in violence within federal institutions. . . . By eliminating disciplinary and administrative segregation, the ability to maintain control over diverse populations will be significantly impacted.

He adds that there needs to be balance. In his words:

We accept that an overreliance on segregation as a disciplinary consequence may lead to negative outcomes.

Everyone agrees with that premise.

However, there are incidents in which swift and immediate responses to dangerous behaviour are necessary options.

He makes it clear that we must strike a balance between public safety and inmates’ rights. I’d like to emphasize an important line from Mr. Godin’s testimony, where he states that segregation can at times be used to protect inmates from themselves. I’ll quote him again:

Many of the inmates currently managed within segregation units are highly vulnerable and are segregated for their own protection.

Take people suffering from mental health problems, for example. A few weeks ago, Senator Pate and I had several discussions about mental health in federal penitentiaries. In some situations, segregation can be used to protect inmates from violent individuals and even from themselves, much like our psychiatric institutions. As I said, no analysis of this bill would be complete without considering the high proportion of penitentiary inmates suffering from mental health problems.

The latest available figures show that 40 per cent of women and 30 per cent of men currently detained in our federal penitentiaries suffer from mental illness. We should not and we cannot ignore them. We must not regard segregation as a permanent disciplinary measure. Take Archambault Institution, for example. I visited that institution twice. It has a unit to treat people who have mental health problems. Nearly 100 patients receive ongoing treatment there, and they are segregated for their own protection and for the protection of staff members. To tell the psychiatrists treating them that, as of tomorrow morning, we are prohibiting segregation for those patients would jeopardize the health of those professionals.

In certain circumstances, segregation measures can help protect people with mental disorders from themselves and from violent acts committed by other inmates. These inmates are often the most abused in penitentiaries.

Removing this tool will make it harder for professionals to maintain a stable environment. An unstable environment steeped in chaos and violence is not conducive to rehabilitation. This situation only exacerbates mental health problems; it does nothing to improve them. This bill might please criminal rights advocates, but it will jeopardize the safety of our professionals.

I would like to add that that this bill does not propose any practical alternatives to protect inmates with mental health issues. That is this bill’s fundamental flaw. It does not propose any alternatives. That is an appallingly irresponsible weakness, and we will only be making things worse if we pass Bill C-83. In my opinion, this bill is irresponsible, dangerous and out of touch with the reality of our prison system.

The Correctional Service of Canada Commissioner’s Directive 580 on the discipline of inmates is very clear. Its purpose is to promote the good order of the penitentiary through a disciplinary process that contributes to the inmates’ rehabilitation and successful reintegration into the community.

According to the union president, in order to respect the provisions of the bill, inmates will require direct and constant supervision from an already limited number of correctional officers and health care staff.

The committee also spoke about implementing these so-called structured intervention units. The union is concerned about CSC’s ability to repurpose existing infrastructure to meet the criteria of Bill C-83. As Mr. Godin said, the criteria are unclear.

He said in committee, and I quote:

Should these changes occur, in order to continue to meet critical strategic priorities effectively significant infrastructural changes at the institutional level are absolutely necessary.

Simply put, the institutions are not currently able to make these changes. Despite all these concerns, legislators are faced with a serious lack of information, data and studies. Jason Godin recommends conducting a review of the disciplinary system prior to the elimination of disciplinary segregation to effectively respond to the most difficult behavioural inmate cases. He also recommends a commitment to the availability of health care professionals 24 hours a day within all CSC institutions. He recommends the supplementation of existing training and the implementation of new training to provide correctional officers with additional tools. All this could be done before this bill is passed. We are truly putting the cart before the horse if we move forward with this bill.

Honourable senators, before passing this bill, I hope you will consider that human lives are at stake. Victims do not want to relive the trauma of crimes committed by repeat offenders. I therefore urge you to join me in defeating this bill.

The Hon. the Speaker pro tempore

Senator Boisvenu, would you take a question?

Senator Boisvenu

Of course.

Hon. Pamela Wallin

Did I hear you correctly that you feel that in a time of crisis the correctional workers would not be able to intervene?

Senator Boisvenu

Exactly. There are two problems right now. Prison infrastructure is not adapted for close, constant supervision of criminals, as set out in the new directives.

The other problem is that with isolation, which will be made the least restrictive possible, people with mental health problems will be entitled to four hours a day outside a cell or to two-hour outings. This means that they will be exposed to other criminals who are just as dangerous. Inmates with mental illnesses will be put in danger, and so will the professionals caring for them and their guards. If our prison system was perfectly set up to implement this bill, I’d say that this is exactly the tool we need. However, there are too many people with mental illness, who represent about 40 per cent of women and 30 per cent of men. Yet the government is implementing measures as though there is not one inmate with mental health problems.

Hon. Paula Simons

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

I would first like to congratulate the members of the Senate Standing Committee on Social Affairs, Science and Technology for the strength, vigour and courage with which they defended the key amendments that must be made to this well-intentioned but imperfect bill.

This evening, I would like to express my support for these amendments, especially those that require an assessment of the mental health of inmates placed in segregation and a judicial review of cases of long-term segregation. I also want to remind senators that because the correctional system is unable to manage segregation in a humane manner, people suffer.

I would like to tell you the story of Eddie Snowshoe.

In my previous life as a columnist with the Edmonton Journal, I covered Eddie Snowshoe’s story for the paper. I’ve written about a lot of terrible incidents in my career as a journalist, but Eddie’s story haunts me in a way few others have.

Eddie was a member of the Tetlit Gwich’in First Nation in Fort McPherson, Northwest Territories, one of the Peel River people. He was a troubled young man, though not a hardened criminal.

On March 1, 2007, armed with a 22-calibre rifle, Eddie robbed a young taxi driver in Inuvik, injuring the driver. He stole $45. Just 15 minutes later, he surrendered himself to police. He made a full confession.

“It was either that or kill myself,” Snowshoe told police when he was arrested. “I was prepared to get caught. My life was going nowhere.”

Snowshoe was sentenced to almost five and a half years in prison, federal time. Because there was no federal prison near Fort McPherson or Inuvik, the youth was sent to Stony Mountain, a medium-security institution in Winnipeg, more than 4,000 kilometres away. It was the first time he had ever left the High Arctic.

Far, far from home, culturally isolated, without any contact with family or friends, he attempted suicide three times: in 2007, not long after he was first incarcerated; then again in 2008; and again in 2009. In early 2010, after a major depressive episode, there was another serious incident of self-harm. Eddie Snowshoe was placed on suicide watch.

A few weeks after that, he fashioned some kind of makeshift “knife” — something he made out of the lining of a juice box. He didn’t hurt anyone with it nor threaten anyone with it. He brandished it in what a report later referred to as an “incident.” As a result, he was placed in segregation, what is colloquially known as solitary confinement, for 134 consecutive days — 134 consecutive days for a mentally ill young man with a well-documented history of self-harm and suicidal ideation.

A public fatality inquiry later found that the compulsory, legally mandated reviews of Snowshoe’s continued segregation were never carried out. He was simply locked up, indefinitely.

It would seem obvious to most of us here, I suspect, that what Eddie Snowshoe needed was medical treatment and psychiatric care. He needed human contact, not tortuous isolation. Yet, somehow, Eddie survived those first 134 days.

And then? Well, then, honourable senators, on July 15, 2010, Eddie Snowshoe was transferred to Edmonton’s maximum-security prison.

The very next day, on July 16, Eddie applied, in writing, to be moved into the general population. The troubled young man tried his best to advocate for himself. But his application to be released from segregation was lost. The paperwork went astray and wasn’t found until months after his death.

Although a nurse examined Mr. Snowshoe when he arrived in Edmonton and noted his history of suicide attempts, there was no psychological or medical follow-up, no psychiatric assessment. Indeed, correctional officers testified at a later public fatality inquiry that they were never, ever informed about Eddie’s multiple previous efforts to kill himself.

His segregation status at the Edmonton Max was confirmed by an assistant warden, but it was on her last day of work before taking a one-year leave of absence, so she had no follow-up. On top of that, Eddie was supposed to have an assigned parole officer, but that officer was on summer vacation and never met with Eddie to hear his story.

And the result? The result is that no one — no one — in the Edmonton Max realized how long their new prisoner had already been in solitary confinement.

In his later fatality inquiry report, Alberta provincial court Judge James Wheatley summed things up this way:

Edward Christopher Snowshoe fell through the cracks of a system and no one was aware of how long he had been in segregation even though that information was readily available.

As a suicidal, mentally ill prisoner, Eddie could have been placed in a special observation cell, which would have allowed guards to monitor his condition. Indeed, such a cell was free and available at the Edmonton Max. But instead, Eddie was placed in a cell where the guards could only see him through a mail slot.

In all, Eddie Snowshoe spent 162 days in segregation, including his final 28 solitary days in Edmonton. And then, just four months before he was due for statutory release, Eddie Snowshoe hanged himself. He was 24.

Both journalists and politicians are a little too prone to overuse the word “Kafkaesque,” but I frankly can’t think of a better word to describe such fatal, careless bureaucrat bungling — a mentally ill young man whose crime, remember, was to steal $45, trapped in endless segregation — not because he was a dangerous felon but simply, literally, because no one remembered to let him out. He died not because of intentional cruelty or malice but because of institutional inertia and the institutional incompetence of our corrections system.

A wealth of studies demonstrate that long-term solitary confinement can drive even the most sane and stable person to depression and psychosis. Edward Snowshoe was already suicidal and depressive, isolated from his family, his community, his Indigenous culture. Perhaps we should be amazed that he survived 162 days.

Judge Wheatley later found Mr. Snowshoe’s history of mental illness and suicide attempts were not handled with what he called, in a dramatic case of understatement, “any degree of care or alertness.”

Eddie Snowshoe didn’t die in a Dickensian Victorian workhouse. He didn’t die in a Soviet gulag. He didn’t die in a North Korean prison camp. Exiled from his community, cut off from his family and his culture, denied essential medical care, this kid who stole $45 and surrendered to police 15 minutes later, died because we locked him up all alone in a tiny cell and just forget he was there.

Let’s not forget him now.

Let’s not forget what he went through. Let’s ensure, through the bill we are passing this month, that no one else goes through the same ordeal. Let’s ensure that the necessary controls and oversight mechanisms are in place to strengthen our correctional system.

Eddie Snowshoe’s story perfectly illustrates why the bill has to be amended. We must ensure that inmates with psychiatric problems are examined and cared for, rather than punished and placed in solitary confinement. This story also demonstrates what can happen when there is no judicial review of cases of long-term segregation, when there is no mechanism to prevent someone from languishing in a segregation cell just because their paperwork went astray.

I know the end of the month is fast approaching and we are under immense pressure to pass bills as quickly and efficiently as possible. However, that is no reason for us to forget Edward Christopher Snowshoe. Let’s take the time to pass a good bill.

Thank you. Hiy-hiy.

The Hon. the Speaker pro tempore

Senator Simons, would you accept a question?

Senator Simons

With pleasure.

Senator Boisvenu

Senator, thank you for the example you gave concerning Mr. Snowshoe. I think that everyone can agree that there have been problems with people being left in solitary confinement for too long. Everyone agrees that we need to adopt a policy but that we should not throw the baby out with the bathwater.

As you just proved, the problem with our prisons is not segregation. The problem is the gap between psychiatric services, which fall under provincial jurisdiction, and the burden that prisons now have to bear, that of taking care of people who have mental health problems and who do not belong in prison. What’s more, the mistakes being made in the prison system happen because we have let these facilities become a substitute for psychiatric facilities.

Here is my question: does the bill address the root cause of the problem, or just the effects?

Senator Simons

I thank the honourable senator very much for his question. I quite agree. We have turned too many of our correctional institutions, both provincial and federal, into de facto madhouses. We do not provide sufficient support in the community for people who need ongoing psychiatric care. Once prisoners are incarcerated, whether in the provincial or federal system, we utterly fail to provide them with the medical care they need. He is absolutely correct; that creates a situation of real risk for correctional officers, other inmates and for those who are ill themselves.

I think it is a national tragedy. I agree absolutely with Senator Boisvenu that we have created a situation that is dangerous and unfair to all concerned. We absolutely need to provide better psychiatric and psychological treatment especially for those whose crimes were motivated or predicated on the basis of their illness.

It’s really important — and that’s why I’m cheered by the amendments to this bill that call for mandatory review after 30 days of a prisoner’s medical/psychiatric state and mandatory judicial review to ensure that people are not locked up simply because we literally, as in Mr. Snowshoe’s case, forget that we put them there.

The Hon. the Speaker pro tempore

Senator Kutcher, do you have a question?

Hon. Stan Kutcher

Senator Simons, in your work as a journalist, you have likely become aware that modern psychiatric care does not include locking people up into solitary confinement.

Would you think that a federally incarcerated person who has a psychiatric illness should receive the same quality and standard of care as somebody who is not incarcerated and that, because we no longer lock up people who have a mental illness, we should not do so whether they are incarcerated or not incarcerated?

Senator Simons

Thank you very much, senator. I can certainly imagine that, in certain acute cases of a 48-hour hold, sometimes people really do need to be kept in a very safe and secure area. I’ve known through my work as a journalist and, frankly, because of experiences I’ve had with friends and family that when somebody is in that kind of secure hold in a psychiatric institution, they are kept alone but they are monitored.

The great tragedy of what happened to Eddie Snowshoe is that they literally put him in a room without a window. He wasn’t even being watched. I agree absolutely.

One of the great problems we face in this country is our mandatory minimum sentences for so many offences and, in order to render a verdict of “not criminally responsible,” the test for NCR is incredibly high. You have to be completely unaware of the nature and consequences of your actions. You can be NCR if you’re floridly psychotic, if you are in the grip of delusions, but if you’re mentally ill in such a way that you are seriously impaired but not that delusional, there is no mitigation in sentencing. You can’t come before a judge and say, “I was mentally ill,” and receive any kind of credit for that in a sentence that has an enforced mandatory minimum.

It is an absolutely tragedy. People who are jailed because they are ill need treatment. When we divert people who need medical care and instead criminalize their illness, the very least we can do is treat the illness.

The Hon. the Speaker pro tempore

Are honourable senators ready for the question?

The Hon. the Speaker pro tempore

It was moved by the Honourable Senator Petitclerc, seconded by the Honourable Senator Dean, that this report be adopted.

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division, and report adopted.)

The Hon. the Speaker pro tempore

Honourable senators, when shall this bill, as amended, be read the third time?

(On motion of Senator Klyne, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)