Thank you, Ms. Latimer.

Ms. Mitchell, the floor is yours.

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.

Thank you, Ms. Mitchell.

We will now have senators engage in questions. Senator Pate, you’re the sponsor of the bill, and I’m going to invite you to go last and mop up if needed. You know how we are at this committee.

Thanks to all of you for being here. My first question is for Ms. Kish from the Canadian Elizabeth Fry Societies. What I would like to get at is, what is your impression is the suitability of the 48-hour limit in the context of extended stays.

Considering that data indicates that between November 2019 and November 2021, about a quarter of the inmates in structured intervention units, or SIUs, were detained for over two months, and 20% stayed in the structured intervention unit for between one and five days, I’m wondering if you think the 48-hour limit set by Bill S-230 for a stay in and is realistic and sufficient to meet the needs of inmates and the management requirements for those SIUs.

Thank you for your excellent question. I do think it’s an important first step. Certainly, right now, restrictive conditions and segregation in all its forms are primarily used as a population management strategy. They’re not resolving the problems they intend to, so yes, I do think it is reasonable. I think that it will push the system to innovate and find different and more meaningful responses, especially, if this bill is to pass, in its capacity for people with identified mental health conditions to be moved out of such systems and into health care systems.

Ms. Latimer, if you have a short answer to add to that.

I think you need to have a continuing judicial review of people being placed in solitary confinement. I think 48 hours is very good for, first of all, testing the grounds on which people were placed in solitary confinement and whether they’re a legitimate vehicle to be used.

Our review is that placement in solitary confinement should never exceed 15 days, but working a lot with males who can be violent, we’re not of the view that we can abolish solitary confinement or administrative segregation, because there are circumstances in which prisoners will hurt each other unless they’re separated from each other. Sometimes that takes more than 48 hours to resolve, but it shouldn’t take more than 15 days.

We do a lot of work on the ground hosting workshops and bringing in productive conflict resolution tools. The evidence is clear that in incarceration systems designated for women, as Ms. Latimer noted, the realities and contexts are very different than in the men’s sector. We believe that in the existing structure, there are more than enough tools available for Correctional Service Canada to keep people safe in ways that don’t place them in such restrictive conditions. We, as a partner, are committed to continuing to bring in community experts and to support the population to have the skills required to do so without being kept in small cages.

This is a general question for each of the witnesses. Thank you for appearing before our committee.

I’d like to get your insights, in practice, on the resources that are available to conduct assessments in terms of mental health or those who are in the system. From what I understand, if it’s dealt with by staff as opposed to a professional, and if in part it is a staff member within the facility, chances are that they might not have the appropriate expertise. The systems and processes which they use are largely ticks in a box — I don’t know a better way to say that. Can you give me a bit of insight on those assessments and the resources needed to address the issue?

Certainly. I think part of the rationale, and part of the rationale for the decisions which found the administrative segregation regime to violate the Charter, had to do with how people with mental illnesses were treated when they were placed in administrative segregation. Part of what we were led to believe that Bill C-83 would do would be to be vigilant around people’s mental health as they were placed in there, and a significant amount of resources for the entire regime were dedicated to that. I believe Minister Goodale said that there was $450 million dedicated to implementing. We would expect that the appropriate quality of assessors are there to monitor and to take care of people’s mental health.

We wait with interest for the next report from the Structured Intervention Unit Implementation Advisory Panel because it will have a focus on mental health. What I believe, from my experience in talking to people who have experienced it, is that the necessary assessments are not taking place in a way which makes a difference for people.

Do you have something to offer further to that?

We see the problem as being kind of dual-ended. One, all of the people who provide therapeutic and health services within the Correctional Service of Canada are trained in a risk and securities framework. For example, with the recent influx of behavioural counsellors, incarcerated women and gender-diverse people see these individuals as a therapeutic relationship and are often shocked when the same individuals lay disciplinary charges against them. As long as there are lateral and strong relationships between health care providers and the Correctional Service of Canada, we’re going to see mental health integrated into risk frameworks, and duly, from the end of incarcerated people, we see people being afraid to say they’re not okay because historically and persistently, when an individual who is incarcerated indicates that they’re unwell, this is often responded to by reducing their access to everything in prison and then treating their suffering as risk.

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

Thank you, all.

Ms. Latimer, I was really disturbed to hear you speak about places outside SIUs where people are being kept in what is de facto solitary confinement. Can you tell us what kinds of places, and if they are not in the SIUs, is anyone tracking what’s happening in those informal segregation units?

No. It’s very discouraging that the response to the Charter decisions was not to respect the rights that had been shown as being violated in those decisions. So what we have now is that in structured intervention units, some attention is being paid to how these are implemented. So people are being placed in isolated confinement, and it’s called different things, whether it is the Voluntary Limited Association Range, or just a lockdown on a particular range so no one is getting out, or isolation within a particular cell or observation cells or — you name it. There are a lot of different places in the prison where you’re going to find people in their cells alone for 22 hours a day or more and without getting meaningful human contact.

With the SIU, there are rules and there is oversight. If I’m put in a cell and it’s functionally a segregation unit, is anyone tracking that? Do any of you have reliable data about how many people may be kept in those conditions in a given month or quarter?

No. I don’t think CSC is producing reliable data on that, but it would be very worthwhile to ask them how many people are being detained consistent with the UN definition of solitary confinement, which is 22 hours a day in a cell without meaningful human contact.

Maybe a quick question for each of the three of you. We know that people with mental illness are disproportionately represented in the prison population. Of the people who are being kept in SIUs or other solitary confinement type of situations, what percentage of them would you say, are suffering from a mental illness, whether that’s a psychotic condition, profound depression or suicidal ideation? What percentage would it be?