Thank you very much. Good evening. My name is Michael Spratt, and I’m a criminal law specialist and partner at the Ottawa law firm of AGP LLP. It’s always a pleasure to appear before this committee.

There are many frustrating and disheartening aspects to the practice of criminal law. The underfunding of the justice system, court delays, our refusal, seemingly, to adequately deal with mental health, addiction and poverty. These are all things that weigh heavily on me, but all of that pales in comparison to the helplessness that I feel and that my clients feel when they’re faced with injustice in the correctional system. Let’s be very clear: There is injustice in the correctional system.

I know you’ve all read the Office of the Correctional Investigator’s yearly reports, which detail punitive use of solitary confinement and dry cells, problems with access to health care and mental health supports, incidents of discrimination, racism and the prevalence of sexual violence and violence in general.

I not only read about those tragic accounts in the Correctional Investigator’s reports, but I hear about them directly from my clients, and there’s often very little that I can do to help them seek justice.

Let’s imagine a very reasonable hypothetical. An inmate with mental health issues isn’t receiving adequate treatment for those mental health issues and is instead confined in a Structured Intervention Unit for, let’s say, 30 days. Maybe that decision flows from an honest mistake of law or policy. Maybe it was a punitive decision, or maybe it was just an unreasonable one. In any case, there is little recourse for that individual.

Often, that person is not capable of advocating for themselves, and even if they are, there are disincentives to making internal complaints and reporting the matter. Reports to the Correctional Investigator may help inform his reports and inform his recommendations, but they do little to provide individual and timely remedies to the individual — the person — who is suffering under those conditions.

It’s often difficult for that individual to contact a lawyer, and when they do, we often face a wall of bureaucracy, obstruction and secretiveness. When I am able to get some information, a human rights complaint or other civil action would involve bringing in another lawyer with a specialty in that area, and that’s a lengthy, complicated and potentially expensive process that doesn’t provide a guarantee of a timely remedy. Currently, there is no mechanism to return the person to the best place to address the issues they’re facing: the sentencing judge.

That sentencing judge has heard the facts of the case. They know the circumstances of the offender. It’s completely illogical to deny the sentencing judge the ability to administer a sentence, and that’s what I want to talk to you about today.

I can tell you that judges are aghast when they hear about some of the conditions and some of the treatment that people in prison face. They’re aghast that they have sentenced someone, presuming that the law and policy will be followed, only to find out that it’s not, and they are helpless to do anything.

The lack of recourse for a person in custody when faced with situations like I’ve described is — the solution is outlined in the bill. The mechanism to rectify that situation can also correct some disparities that we see in the criminal justice system. You see, judges can consider conditions of incarceration, collateral consequences, state misconduct that occur prior to sentencing, but they can’t consider any of those if they happen after sentencing.

The situation that we’re left with is we can have two identical people who have committed identical offences, one who experiences that illegal, discriminatory or unfair conduct before a sentence is imposed and the judge has the ability to craft a sentence that addresses and take those into account, but the moment the decision is imposed, the same offender with the same offence who experiences those same injustices after, is left without any recourse from the sentencing judge, the person best suited to provide a remedy.

The proposals in the bill would go a long way not only to ensure speedy remedy, but they would ensure that people who experience injustice behind bars, no matter when it occurs, are able to seek recourse before a responsive and timely decision maker. A procedure to allow sentencing courts to review the administration of a sentence would allow courts to access documents, to lift the veil on some of the secrecy we face, to compel testimony and to fully explore all the facts that led to the situation and impose an appropriate remedy.

I like the bill, but I always think things can be made a little bit better, so I will leave you with these two suggestions to consider when you’re reviewing the legislation.

Many of the individuals who would benefit from this legislation are not going to be able to afford counsel and won’t have the capacity or skill to represent themselves before these hearings. There are mechanisms that can be easily inserted into legislation to deal with that. We see those in the Youth Criminal Justice Act or section 486.3 of the Criminal Code that would allow the court to appoint counsel at Legal Aid rights to assist the individual. That’s a change that could be made to ensure things move quickly and timely and we don’t take up a lot of court resources dealing with these issues.

The other thing the bill should contemplate is how these individuals would appear before the court for the application. One of the worst things is to take the person out of the federal institution — sometimes take them across the country or across the province — have them at a local remand facility to get them before the court, but that can be easily corrected with some language allowing for virtual appearances from the federal institution, and that would allow the court to impose some remedy, hear the facts, or not impose a remedy after hearing the facts, but not disrupting the process or causing any more delays in the criminal justice system.

I’m happy to answer any more questions on that specific provision.

I’ll be candid, I think it would put a strain on a superior court. We’re already experiencing a lack of resources and an overtaxing of what resources we have. But I would be hopeful in a number of aspects.

We talk a lot about deterrence, both specific and general in the criminal justice system. The mere fact that you have to go before a judge to justify an extension might limit the number of times you need to go before a judge to justify an extension. It might encourage reasonableness when one exercises discretion to take that sort of step.

I also think that, with experience, courts can be efficient in dealing with these matters. We see superior courts dealing with bail reviews and detention reviews in the pretrial stage, and they’re able to accommodate those. Every person in pretrial custody is entitled to a detention review at 90 days. There are many more people than the numbers you’ve cited in pretrial custody, unfortunately. The superior courts are able to deal with those sorts of mandatory reviews, so I have confidence that the system would be able to adapt to deal with the new work that it would be asked to do.

I’ll leave the parameters around what is appropriate in terms of a private member’s bill to the experts, which is all of you, but legal aid is administered by the province. It wouldn’t be an expenditure of any federal funds. It’s certainly something that the provinces would have to cover, as we see in other types of legislation.

Certainly, I think that it’s something that could end up saving the courts both time and resources, both in terms of money and, more importantly, time, to have professionals involved to streamline those applications.

I think that it’s often tempting not to pursue possible solutions because you can imagine ways that people can get around those solutions or that they may fall short. I don’t think that’s a reason not to pursue right-minded solutions.

I think what will change is that in courts where I do most of my work, we have the open courts principle. There is no open prisons principle. It’s hard for people to see what happens there. Even as a lawyer who has clients in these institutions, it’s hard for me sometimes to see what happens in there.

It is often said sunlight is the best disinfectant. The requirement after 48 hours to seek judicial approval, the ability of a judge to manage a sentence after it’s been imposed, I think that will provide some information, sunlight and insight that cannot only address individual issues but act systemically to change the public’s mind. I think in the legal profession for too long we let Latin phrases handcuff us, and we do that willingly — functus officio. The judge is unable to do anything except when we say that the judge is — except in conditional sentences, probation or ancillary orders where judges can administer these things.

I think it is a step. It’s not going to correct everything, but it’s a necessary step, and it’s a step that’s 30 years too late. We’ve been waiting 30 years for it. Let’s get on with it.

It’s always hard to get judges to publicly comment on things like this, but I think we can take some guidance from some of the judicial commentary about the state of our institutions. Quite often, we hear judicial commentary about the state of our provincial institutions because that’s where many of the accused people are before they come before the judges. We’ve seen a trend over the last number of years about judges increasingly speaking out about conditions that people are housed in. I think there is an increasing recognition that jails and people in custody is an admission of the failure of society and of taking care of each other.

The first time I noticed this was a decision from — I think it was — 2019. I think it was Justice Schreck from Toronto commenting on the Toronto South Detention Centre, which is a provincial reformatory but suffers from many of the same problems that this bill seeks to address. I’ve never seen a judge speak more frankly about conditions in custody — about soiled and bloodied linens, inadequate food, access and the deliberate political choice. It’s a secret to many, but not to people in power, about what’s happening. To hear a judge talk about the deliberate political indifference to those conditions was shocking. We’re seeing that more often.

One of the benefits we have here is that this committee is not indifferent. There’s a bill before this committee that could make a difference and will require change that will be hard to implement. But if fixing jails, prisons and conditions had been easy, it would have been done already. Just because it’s hard and may require reflection and change isn’t an impediment. We’re seeing more of that commentary in judicial decisions going forward. I think you can take some keys from that.

Yes.