The question I have in my head will work just as well for the second panel.

Maybe you can ask Senator Pate later. Senator Pate, you are the sponsor of the bill. I’m going to turn over the last set of questions to you.

Thank you very much. I wanted to pick up where Senator Busson left off. One of the questions raised by some who have spoken to us about the bill is that there are an awful lot of people to whom the mental health provisions in particular might apply. One of the reasons for that is the fact that the mental health system has not been able to keep up, and when they have not, the prison system has been used. Do you see that as a viable reason, either morally, legally or ethically to continue the practice of keeping people in prison?

Not at all. I think we had a problem with deinstitutionalization and the thought that the community resources were going to be adequate to deal with the people who are no longer being subjected to custodial for mental health issues. The community was not able to keep up. The resources are just not there. So, no, I think there needs to be more resources, particularly community-based mental health services.

You pointed out, and I’m happy to have the other witnesses also join in on this, but you pointed out that when Minister Goodale was considering this bill, there was a significant allocation. In fact, there was a special application to the government to have a Royal Recommendation for funding for mental health services. The understanding was it was to contract services through existing exchange of service agreements with provinces and territories to have additional mental health beds. To your knowledge, has any of that happened?

I would say, not. I know they already had beds with Pinel institute. They used to have beds with Brockville, and I think they lost those beds. If anything, I think they’re heading in the wrong direction. Ms. Kish might know better than I do whether there are prisoners being transferred into beds.

Ms. Kish and Ms. Mitchell, would you like to contribute on this, if you have a view or insight?

Thank you. Anything from you, Ms. Mitchell?

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

The types of mental health beds that you just spoke about, Ms. Kish, those are accessed through treatment orders as part of the conditional release provisions. Is that correct?

Sometimes on condition of release, sometimes earlier. At the Fraser Valley institution, the penitentiary for women, there were two treatment facilities that were accepting people with certain criteria prior to day parole. I’m not sure if this is being done through the sections that this bill addresses.

In either event, we see when individuals are placed in conditions which cause them harm they deteriorate, and when individuals are placed in conditions which support them, we’re seeing these individuals successfully navigate treatment and have productive and fulfilling lives; whereas people who are experiencing these structured intervention units are irreparably harmed.

Thank you. My understanding is those aren’t through section 29; those are treatment orders as people are becoming eligible for escorted passes and unescorted passes. But we can certainly ask that if we have an opportunity.

What were the provisions before Bill C-83 and the creation of the SIUs? What was the definition of “segregation,” and what kinds of oversight mechanisms existed prior to that?

It was interesting in that disciplinary segregation had more due process protections or procedural protections than administrative segregation. The same three provisions, grounds for detention, that exist now in a structured intervention unit were there under the administrative segregation provisions, but they did get access to information about why they were being placed in administrative segregation and did have an opportunity to question whether there was a factual or evidence-based reason for their placement in administrative segregation.

Prisoners would complain that they had more rights on the disciplinary segregation side than on the administrative segregation side. But I fear that even those limited procedural protections that were there under the CCRA for administrative segregation disappeared in terms of not only of just the SIU but that proliferation of solitary confinement by different names that we’re seeing now.

Would you agree that prior to this the definition of segregation was, basically, anyone not in the general population, and it could be administrative segregation if it were disciplinary? They also had a right to counsel as well.

Yes.

We saw the overuse of administrative segregation as a way to avoid the accountability required for disciplinary segregation. Do you agree with that?

I would agree with that. You would still have dry cells and a few other isolated confinements, but the majority of people were being placed in administrative segregation.

Thank you both. I wonder if I could bring this section of our discussions to a close by thanking Ms. Kish, Ms. Latimer and Ms. Mitchell. As usual, you made very valuable contributions to our study of the bill, and I want to thank you again for joining us.

We will now switch to our second panel of three people, and I would like to welcome each of them.

We have with us Michael Spratt, Partner, AGP LLP. Welcome, Mr. Spratt. We also have Adelina Iftene, Associate Professor of Law, Schulich School of Law, Dalhousie University. Welcome, Professor Iftene. Also with us is Mary Campbell, Former Director General, Corrections and Criminal Justice Directorate, Public Safety Canada, now retired.

Mr. Spratt and Ms. Campbell are joining us in person and Professor Iftene is joining us by video conference. We will invite each of you to make presentations in that order of about five minutes each, and that will be followed by questions and discussion with senators. Beginning with you, Mr. Spratt, the floor is yours.

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.