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.

Thank you both.

I was just thinking about some of the testimony from the previous panel, and I’m just curious about percentages with respect to the causal link between isolation and mental health-related issues and matters. I guess in a certain respect, I think the word used was “irreparable harm” and how it could increase or expedite or worsen pre-existing conditions. Then the question is, when these individuals get out, is it a situation where they re-enter back into the process?

I’m curious if you could provide comment, and this is for any of the witnesses, on that linkage of the availability of data that shows that link between isolation and increased harm in terms of pre-existing mental health conditions.

I can’t speak to any research or data. I mean, your comment raises for me the issue of recent social concern about loneliness, particularly since the pandemic and loneliness among older adults.

I think it’s a way to relate the issue of isolation. Society has started to realize that there is a lot of loneliness out there that has a real mental health dimension to it. Really, what is isolation or segregation other than, in fact, a form of profound loneliness?

I would hope that there would be further research on the impact of that isolation in a custodial community and the long-term impact of it. Right now, the people that end up in segregation often just have lifelong challenges, and the period in segregation may do some temporary good, but without profound treatment it is not going to change the cycle. They’ll return to being very isolated individuals without social supports.

I think that’s quite a profound issue, not just inside, but a profound issue in society that all of us should be concerned about. Because as you point out, most of these people are coming back into the community.

May I also answer that?

Yes, please do.

There is quite a bit of research, actually, both in terms of the people who enter prisons with mental illnesses in Canada and generally.

In Canada right now, in the work that I have done, I’ve done work with people over 50, so around 40% of those over 50 in Canadian federal penitentiaries have a diagnosed mental illness — at least a diagnosed mental illness. In terms of women, generally, around 80% have a diagnosed mental illness, so it’s a very high percentage for women.

I’m not sure about the percentage of men, but I think the last numbers that I saw were around 30%. Again, here we’re talking about diagnoses, which, of course, many of the people that enter prisons do not have access to a diagnosis before they enter the prison, so these numbers are probably underreported.

First, we know that a lot of people entering prisons have very high percentages of mental illness, higher than the general population that’s not in prison.

Second, there is a lot of research documenting how the prison environment itself — isolation aside, segregation aside — actually worsens mental illnesses. There have been studies, even in Canada, that are showing that people exiting prisons tend to have higher rates of suicide, higher rates of addiction and generally higher mental health needs.

Third, I submitted to you in my extended comments some of the research that is showing that isolation actually worsens anybody’s mental illness. Even if you don’t have a diagnosed mental illness, negative health consequences will appear as early as 48 hours. After 15 days, they will become permanent, and there’s really nothing that can be done. It’s quite dramatic, and that is for people who don’t have mental health illnesses.

For people with mental health illnesses, there is a lot of research, including United Nations research, showing that all of these negative consequences start a lot earlier than the 48 hours and a lot earlier than the 15 days. There is quite a bit of research out there, some of it I have submitted to you, but, certainly, there is more that should worry us in terms of using isolation of any kind in response to mental health illness and in response to unwanted behaviour.

At this moment, isolation is used to control anything that is unwanted behaviour, even if sometimes it can be because of actual pre-existing health problems.

Thank you, Professor Iftene.

I have a number of questions here, but I’d like to ask Ms. Campbell, given your experience in corrections, how can correctional facilities adapt to the proposed changes in Bill S-230, or how must they adapt to the proposed changes in Bill S-230? Are there potential challenges in implementing the legislation that should be anticipated and addressed?

Yes, there will be challenges in implementing it. One of the challenges is having adequate medical resources within the system, and we know how difficult it is to attract doctors, psychologists and therapists to come and work in an institution. It’s an ongoing challenge for various reasons. We’re familiar with that, so there is nothing new there.

The challenge will also be in educating all of the staff of the legal obligations. I don’t want to paint a broad brush of everyone in corrections. It’s a tough job, and there are many good people doing the best they can, but there is often a big gap between Ottawa and the range at Stony Mountain or Matsqui. Staff don’t always have a good awareness of what the law is and what their particular obligations are. When I spent more time in the institutions, I used to say if I had a nickel for every time I was told that some proposal or some rule was the law, I’d be very rich. There’s not good awareness of the difference between law and policy. I think the education of staff on these measures will be crucial to their success.

I hope there will be a bit of a deterrent effect that staff will realize they won’t need to go the Arbour recommendation route as long as they avoid creating or contributing to conditions that are harsh or illegal.

I think there will be a lot of work to be done, such as always a reallocation of resources. I have a lot of thoughts as to how CSC could reallocate its money, which is, after all, the money coming from every taxpayer in Canada. But I don’t want to downplay it. Yes, it will be a challenge, but they are capable of meeting that challenge. It’s going to take some real leadership and really good staff education.

Ms. Iftene, I wanted to ask you a quick question about how you foresee the provisions of Bill S-230 impacting the health and well-being of prisoners, especially those with disabling mental health issues. Are there specific aspects of the bill that you believe could address or exacerbate the existing challenges in prison health?

One thing that the bill does is actually remove the idea that isolation is, or can be a solution for any kind of behavioural problem, including those caused by mental illness. I think the important thing it does by putting a hard limit on the ability to use isolation is that it flags, the fact that mental illness needs other forums to be addressed. There is a need for treatment, likely treatment that’s not going to be in prison.

At the moment, isolation is being used and has been used for decades as the one-stop response to anything that is seen as unwanted behaviour including health issues. I think that is extremely important. There have been a lot of attempts over time to limit these disciplinary or punitive responses, and they have failed. I think it is time to make it very clear that you have 48 hours to find an actual solution to the problem.

Yes, it’s going to be challenging because, of course, the bill does not and cannot provide, at this moment, are all the other alternatives that will need to be in place. As Ms. Campbell said, there will be a reallocation of resources. There will be a lot of need to rethink the things that have been done, but I think it is that very important step toward saying that you can’t use isolation as a solution. Isolation is not a solution; it’s just a momentary point in time when you get that 48 hours to think of what it is that’s best for the person in that situation.

As some of the data that I’ve worked with from CSC suggests, we’re looking at people staying in isolation for 120 days. That’s a long-term solution for managing unwanted behaviour. That can no longer be the case and shouldn’t have been the case.

This has been somewhat depressing. Ms. Campbell, when you described the 47-hour trick that combined with Ms. Latimer’s earlier testimony about creating — I don’t want to call them secret segregation units. I don’t know what the term is. Ghost cells?

What is it about the culture of corrections that leads to this? I worry now, listening to you, Ms. Latimer and Mr. Spratt, that the changes Senator Pate is proposing in the bill will not be a solution because it doesn’t encompass all the tricks that you’re describing.