Good afternoon and thank you for allowing me to be here today. I’m here today on behalf of the Criminal Lawyers’ Association, or CLA, an organization of lawyers committed to providing a voice for criminal justice and civil liberties. We strongly support Bill S-230, which provides vital safeguards for the people in the federal correctional system, and we endorse the submissions of the Canadian Prison Law Association.

In the 1996 report of the Commission of inquiry into certain events at the Prison for Women in Kingston, Justice Arbour described a breakdown of the rule of law in corrections. Unfortunately, not much has changed, and the annual reports of the Office of the Correctional Investigator catalogue some of the many abuses and illegality that persist in the federal system. Serious reform is needed, and Bill S-230 is an important first step.

Segregation is deeply damaging and still overused in the correctional system, and the CLA supports extending the safeguards and protections offered to prisoners in structured intervention units. In fact, we recommend extending these further to cover any inmate held in restrictive conditions for 22 to 24 hours per day and who doesn’t receive at least two hours of meaningful social interaction.

Given the severe consequences of segregation, we also support greater judicial oversight. Independent external decision makers have made some difference, but there are still very serious issues with extended segregation placements and disparities in who is being segregated. Judicial oversight is absolutely vital to correct wrongful placements in segregation, but even just the availability of judicial oversight plays an important role in promoting better decision making and the rule of law.

We also support Bill S-230’s efforts to create more appropriate alternatives for people with mental health conditions, but we do recommend expanding the section to include community-based mental health services. Moreover, we support expanding correctional services for prisoners who are from disadvantaged or minority populations. These are our populations that are overrepresented in prison, who too often experience very serious barriers in the current system and have distinct needs that our system is not well suited to address.

Finally, the CLA strongly supports section 11, which finally implements Justice Arbour’s recommendation of allowing sentence reductions for unfairness in the administration of a sentence. To protect rights, there has to be a meaningful remedy. In the criminal law context, we generally have such remedies, evidence gathered in a search that violates section 8 of the Charter can be excluded under section 24(2). Stays can be granted to address certain rights violations. These are certainly drastic remedies, but our highest court has held that such remedies are absolutely essential to follow through on our commitment to upholding the Charter. For rights abuses in pretrial detention, courts have relatively effective remedies, sentence reductions and even stays, but once convicted, prisoners generally don’t have access to effective remedies. Habeas corpus is not a panacea. The court has essentially turned it into a framework to get faster judicial review of decisions that impact prisoners residual liberty interests.

To be clear, this is a narrowly defined category — for example, segregation placements and transfers to higher security — and the remedy is ordering prisoners released from an unlawful form of detention. You can’t challenge any and all issues this way. The framework has its flaws, and even when a prisoner is challenging a deprivation of liberty, it can often take so long to get there that the issue is moot and there’s not a lot the courts can do to correct the wrong.

For issues that don’t fall under a deprivation of liberty, the other option is a Charter application, but not all issues rise to a Charter breach, or a judicial review, which is slow and offers some limited remedies. Generally speaking, if the issue isn’t ongoing at the time of the hearing, there aren’t many effective remedies that are available. Maybe a declaration can be made but those aren’t sufficient to address the serious and grievous wrongs that are committed against prisoners often. Sentence reductions are absolutely essential to finally vindicate prisoners’ rights and ensure that officials take prisoners’ rights seriously.

To the extent that any coordinating amendments need to be done to allow this remedy, these should be done. It certainly may take time and effort, but upholding the rights of prisoners necessitates having access to effective remedies.

Thank you. I look forward to your questions.

I have nothing further to add. I believe Ms. Latimer and Ms. Kish covered this topic well.

Yes, thank you. I agree very much with Ms. Latimer and Ms. Kish on this point. The population with mental health conditions is, I would say, a very large percentage. I don’t have the exact figures, however.

Certainly, isolation can create certain mental health challenges. Even statistics becomes a bit tricky, because for lack of resources, many individuals are not necessarily getting treated and diagnosed as well, which is just one added challenge with getting precise figures on this point.

Yes, thank you. I will begin by saying that we have very serious mental health challenges that contribute to many people ending up in the criminal justice system who shouldn’t be there, and the prison setting is obviously not one that is most conducive to the treatment, rehabilitation and reintegration of individuals who do suffer from mental health challenges. It’s very much in the interests of public safety to be putting individuals in the environment where they’re going to be getting the support and the care that they need to further their rehabilitation and reintegration. So we very much support measures that extend alternatives to incarceration.

There are, certainly, challenges and logistical issues to sort out when it comes to facilitating this particular approach and transferring between these settings, but we are of the position that it is something that is possible and it will require some work and some consultation between the provinces, which oversee the health care systems. There is a path forward here, and given that there are benefits to be had from getting people in the appropriate setting, it is worth the effort and overcoming those particular challenges.

Our position is that section 24 of the Charter allows courts to grant any remedy that is appropriate to remedy a violation of Charter rights. Section 11 is not necessarily creating new powers, it’s simply affirming something that could already be done by the courts under section 24 of the Charter.

There is very significant value in saying that and to have legislation that enshrines this, which specifically empowers our courts to be doing this. Because before now it was not something that had been done, to the best of my knowledge, at least. We do need to take the steps that Justice Arbour said to be facilitating a level of collaboration between our courts and the legislature to protect rights.

Even if we do come to the conclusion that we need to make these coordinating amendments, I will reiterate that we should be doing that. Clearly, prisoners need access to effective remedies. As inconvenient and difficult it might be to make these amendments, it is possible and it is absolutely essential if we’re going to uphold the rights of prisoners.

I have nothing to add. Ms. Latimer and Ms. Kish spoke well on this point.