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?

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.

Thank you, Mr. Spratt. You went a little bit over your time, but then you used less time the last time you were here, so it balanced out. Thank you.

Could I invite Professor Iftene to address us for roughly five minutes? The floor is yours.

Good evening, and thank you for the opportunity to speak to Bill S-230. In what follows, I will focus on the amendments regarding the duration and oversight of stays in SIUs and the proposed reduction of sentence remedy. I have submitted some extended explanations for the three points that I will make orally, as well as three appendices that I will be referring to during my remarks.

The first point that I want to make — and which you’ve already heard quite a bit on tonight during the first panel — isolation under various names continues to be overused in federal corrections. Whether we call those SIUs or we call them something else, they are still isolation. Structured Intervention Units have been implemented under a promise to abolish segregation and to create a more therapeutic space. That has not happened. The reports of Professors Doob and Sprott as well as the more recent reports of the Structured Intervention Unit Implementation Advisory Panel have shown incredible challenges in implementing the SIUs, such as the fact that, in many respects, they continue simply to be variations of the old regime of segregation and the fact that people with mental illnesses are experiencing SIUs for extensive periods of time and that racialized people are overrepresented in SIUs.

What I do want to especially draw your, attention to is the fourth Doob and Sprott report, one I had the opportunity to co-author and which I also submitted to you as Appendix A. This report shows, using Correctional Service Canada’s own data, how all of these concerns regarding SIUs — concerns you’ve already heard about — have not at all been mitigated by the independent external decision makers that were — that’s an oversight mechanism created specifically to oversee the stays in SIUs and to prevent abuses.

The second point that I want to make is that isolation, of course — a point that is very well documented, and I’m sure you have heard about this — worsens an individual’s mental and physical health. I have provided you with extended notes in which I explain this point, as well as in Appendix B, where it is also highlighted how current correctional practices regarding the use of isolation under any name, really, including SIUs, failed to meet the United Nations standards, and are likely not Charter compliant because they do present some of the same issues that the old regime that was found to be not Charter compliant presented.

The third point that I want to make is that Bill S-230 may help mitigate some of these issues in at least two ways. First of all, I think that, considering the health and legal concerns, the use of isolation rises for everyone, especially for those with mental illnesses. Considering that we clearly still use forms of isolation in Canada with very little meaningful oversight, I submit to you that strict measures to control the use of segregation under whatever name are needed.

These measures, as Bill S-230 seeks to do, should include imposing strict limits on the duration of isolation, as well as requiring a judge’s order for stays that exceed that duration. I think we’re at a point where this is the only reasonable oversight mechanism, because we have well-documented failures of any other forms of oversight, both internal and external. At this point, it’s clear that only a court presents sufficient independence and impartiality guarantees to oversee these matters.

Finally, I would like to address the issue of remedies for those who experience abuses in prison through SIUs or otherwise. As you’ve heard from Mr. Spratt, prisoners are at an increased risk of harm and of having their rights infringed. The way the SIUs have been implemented is really just an example of that. Correctional services are rarely held accountable for the harm they are inflicting. The parole system has also done little to mitigate the situation of individuals who experience harsher punishments based on how their sentence is administered. I’ve also submitted appendix C, in which I elaborate in an article I wrote a while ago on that particular issue of parole.

Allowing for a sentence reduction as a remedy is really essential to protect rights and to ensure accountability. In the 1990s, Justice Louise Arbour in her report on the Prison for Women in Kingston noted that the rule of law will not implement itself behind bars without intervention from parliament and the courts. She then proposed that courts be able to grant sentence reductions as a remedy for harms encountered, as a result of how sentences have been administered.

To be clear, this is a remedy that other countries have and have been providing for decades, including northern countries and some western European countries. However, in Canada this recommendation has not been implemented. Instead, a variety of reforms tinkering at the margins of the main issue, which in my view is the lack of accountability of correctional systems, have been taken. Yet here we are, despite all of these reforms, 30 years later, discussing the same issues. We’re discussing the overuse of isolation, lack of adequate oversight and over incarceration of people with mental illnesses. I think this bill is an opportunity to provide courts with the power to oversee the implementation of the sentences they render and to rectify the harms people encounter in prison every day. Thank you.

I’m going to invite Ms. Campbell to address us for roughly five minutes.

I hope I can change that pattern, chair. I haven’t done formal written remarks, it’s not usually my style to do that, but I’ve lived through most of the issues that are on the table today. I want to touch on three things in particular.

Correctional Service Canada, or CSC, has always had the authority to transfer inmates to hospitals, whether for assessment or treatment, and that was in the Corrections and Conditional Release Act, or CCRA starting in 1992. That authority exists, and obviously has been used. Senator Boisvenu has spoken about the availability of Philippe-Pinel, a forensic psychiatric facility. He has praised it with good reason. The former chair of this committee was a huge proponent of the Brockville Mental Health Centre, particularly when they developed a forensic unit for women, and again, that’s something that is available to CSC. There are resources out there, whether they are within CSC’s control or the private institutions that they contract with.

This is not to say that there’s an unending supply of beds out there, but there are options, and of course, CSC itself has run regional psychiatric centres, such as the one in Saskatchewan, for example. These measures are available if there’s a willingness to use them.

On the issue of the 48-hour limit on segregation, I just want to flag that I hope that there is protection in the bill that will prevent what one would call the 47-hour switch, which is once 47 hours has been reached, CSC pulls the person out for half an hour, and then puts them back in and the 48-hour cycle starts all over again and they avoid the necessity of going to court. I just want to flag that this is an important issue.

The third issue, the Arbour recommendation, yes, I was with the Solicitor General of Canada and all that thereafter. The recommendation is not unknown to Canadian criminal justice. People who are in pretrial remand get extra credit, more than a day for a day, because the conditions in remand are known to be more difficult than sentenced time. That’s an analogous situation. The Youth Criminal Justice Act has provisions for the young offender to go back before the court to have the custodial sentence reduced or to have the conditional supervision period reduced. These are just a couple of examples. This is not a foreign concept to have this return to court.

Why was the Arbour recommendation not pursued? We’re approaching 30 years since that recommendation was made. As I say, I was at the Solicitor General at the time, and if you go back and look at the government response in 1998, it noted that we had referred it to the Department of Justice because it was a sentencing matter, and that it was “under review” and a draft report was expected in the fall of 1998. Fast forward to the tenth anniversary in 2006, and a report on the progress at that point — you will not be surprised — said that it was still under review by the Department of Justice. In a moment of great candour, the report also said that there’s no indication from the Department of Justice that they will be pursuing legislative amendments in support of these recommendations, and that was the end of the matter. Then, of course, officials leave, governments change, ministers change, and that recommendation didn’t go anywhere. That was its fate until Senator Pate has brought it forward in this bill.

That is all I’ll say right now. I’m happy to answer any questions.

Thank you, Ms. Campbell. You hold the record for getting in under five minutes. Thank you.

Thank you to all of you for being here. You have always provided very valuable advice to our committee for many years, so thank you for that.

First of all, I want to start with Mr. Spratt. There were 3,734 inmates who transited through a structured intervention unit from November 2019 to November 2021. How would you evaluate the impact of that kind of volume on the extension requests in superior courts?

We’ve obviously been dealing with court delays. It’s been quite a crisis in this country for a number of years already, and I know you’ve been here many times talking about that. I wonder if you think the current judicial system is equipped to effectively handle such a volume of cases.

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.

Thank you.

Mr. Spratt, the amendment that you were suggesting in your opening remarks about allowing prisoners who are subject to this bill to retain counsel at legal aid rates, when you initially mentioned it, I thought, “Yes, that’s a good idea; that has merit,” but then after thinking about it a little bit, I have a concern that because this is a private senator’s bill, and, as such, it’s not allowed to spend money without a Royal Recommendation, would you agree that that could be a concern with respect to that particular element?

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.

Certainly, there will be practical challenges with it; I don’t quarrel that at all.

I think some of the merit in it will be, as Mr. Spratt has indicated, the deterrent value of it and that the Correctional Service Canada, or CSC, will be, hopefully, better capable of planning for these situations so that they’ll have resources in place in the institutions that can manage the person, so that you’re not waiting until the last minute, and, oh, gosh, suddenly, what do we do with this person?

I think the need for the preparation will become abundantly clear to CSC. Will it be a struggle? Yes, it won’t be easy. But for a lot of these people, the mental health issues don’t appear just out of the blue. They’re quite apparent early on.

I visited a range once at Stony Mountain penitentiary for people with special needs, and I have to say, I didn’t know how they had even been found capable to stand trial, frankly. CSC knows that these people are there, that they’ve got to make some accommodation, and I think without that kind of legislated deadline, I’m pessimistic that they will do what they need to be doing.

Thank you both.