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?

It would really be difficult to give you an assessment of that because the isolation itself will cause mental illness. There may be people who are — I was talking to one young person who was fine, and within 48 hours in an administrative segregation cell, he was suicidal. So the deterioration of well-being can be very rapid, and it’s — what the isolation does is you start to lose track of what’s real and what’s not real. The line between the unconscious and the conscious mind becomes blurry and you start seeing and hearing things that are not really there.

If you already have a mental health condition that would predispose you, it would be a lot more challenging for you. But it’s challenging for everybody.

I’d invite the others to respond, Ms. Kish first and then Ms. Mitchell, if you would like, on the question of the proportion of inmates in these circumstances who have a mental illness or mental health challenges.

I agree with Ms. Latimer. Certainly, from our experience, it is most individuals who are admitted to structured intervention units who have a diagnosed pre-existing mental health considerations. Upon admission, they become so much worse, for so many individuals. Women and gender-diverse people are in distress for so many reasons in prison and more so in restrictive and segregated conditions.

We don’t only interact with people in prison, but once they’re released, and the long-term impact of this type of treatment is really important to underscore because we see people five to ten years later in the community who really struggle to participate economically and to have relationships and who then isolate — the patterns continue post-incarceration, in really troubling ways.

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.

Thank you.

First two questions that I have and hope to get through — and maybe a third — are for Ms. Mitchell. How do you foresee the proposed requirement for transferring individuals with disabling mental health issues to a hospital contributing to their well-being and rehabilitation compared to being confined in a penitentiary? Is this plausible from a judicial point of view?

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.

Ms. Mitchell, clause 11 may be challenged before the courts and unenforceable from a legal perspective under the Criminal Code. Does the Criminal Code allow a judge to change the sentence delivered for the reasons listed in the new proposed section of this bill?

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.

Ms. Kish, one of the objectives of this bill is to allow for the provision of a correctional service and plans for release and reintegration into the community of people from disadvantaged or minority populations by community groups and other similar support services, which I have no issue with. I’m just wondering, does the bill provide for programs that should be provided within the correction services or correctional institutes to help the incarcerated find a path to safe reintegration into communities? Is there anything in there that ensures that the programs are being given and offered to these inmates and they can get these programs and services before they come to this point?

I think there’s not, and hopefully, quite intentionally so, because what we know from what’s happened is that the provision of programs and services in the penitentiary, although they all have to be done toward re-entry and reintegration in ways that are responsive to all the populations that are in there, they become integrated into the security frameworks that flaw them. From the perspective of supporting women and gender diverse people since the Creating Choices philosophy, it’s been recognized that the best way for people to get access to a program or to receive any kind of therapy or care is in the community where the standards of care and the goals of the training are the priority and not the goals of security. I’m sorry if that was convoluted.

No, it wasn’t. It was helpful, Ms. Kish.

[Translation]

I’d like to thank the three witnesses for being with us today.

Ms. Latimer, I’d like you to reconsider your comment about the definition of “disadvantaged or minority population.” You seemed to indicate that this definition is not inclusive.

Could you clarify what should be added or written differently?

[English]

Thank you very much. I started working in youth justice with young people who were in conflict with the law, and many of them were coming from backgrounds of deprivation, poverty, abuse, foster care, and many of them were white. Even though they experienced these situations, I’m not sure that they would necessarily be within the definition of disadvantaged there.

The problem in my mind is that they were not — I don’t know how to describe this — properly socialized. They didn’t learn the social norms. It would be like integration for the first time rather than reintegration. I wouldn’t say they were necessarily suffering from a mental disability or anything like that. They were just disadvantaged, absolutely disadvantaged, in terms of their start in life.

Many of them, I find, have ended up in the federal prison system. I think it would be beneficial if they also had access to community-based supportive programming that could help them overcome the legacy of their disadvantage and their experiences from when they were young.

[Translation]

Thank you. That answers my question.

Do you have a suggestion for different wording? Because it seems to say here, in the definition of section 8: “disadvantaged or minority population includes any population that is or has been the subject [...] of discrimination [...].”

Should we add an element?

[English]