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.

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?

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.

I agree. I think Senator Pate’s bill will not be a total solution, but it will be an important step in the right direction.

What is it about corrections, or CSC, that is so depressing? I just spent all day yesterday with about 20 colleagues. It is the fiftieth anniversary of the Correctional Investigator this year, so a group of us were invited to spend some time talking about the successes and non-successes. There were a few of us in the room, including one person who is a noted legal expert from the West Coast who is now 80 years old and has worked in corrections from the outside for about 50 years. Even he was expressing, what has the last 50 years of work been for? What have we really achieved? Partly, I’m expressing a mood that I spent a day immersed in yesterday.

Many of us concluded that the changes have been at the individual level. There are individuals who have been helped. In terms of systemic change, you’re right, it is a constant challenge. I think just the notion of locking up other humans in cages is one that just breeds a kind of punitive attitude or disregard.

We accept incarceration. It wasn’t always accepted. In England, when imprisonment as a punishment was first proposed, many people said, “What are you talking about? That’s so expensive. Why would we lock people up as a punishment?” Of course, they had worse options that they were quite happy to continue with whether it was death or transportation.

There is something just inherent in prisons, I think, that you always have to be fighting against. That’s why bills like this and many of the other ones are so important, because they keep pushing back against that drift, and it has to be done.

Mr. Spratt, let me ask you, the way the bill is written, if somebody is in segregation or whatever we’re calling it now — a structured intervention unit — for more than 48 hours, this would require an action to be referred to a judge. But if somebody is kept in a ghost cell, presumably that wouldn’t kick in. If somebody is kept for 45 hours and then put back in 24 hours later for another 45 hours, that would never kick in.

At what point, could this actually be practicable for people who are seeking redress?

I think that it’s often tempting not to pursue possible solutions because you can imagine ways that people can get around those solutions or that they may fall short. I don’t think that’s a reason not to pursue right-minded solutions.

I think what will change is that in courts where I do most of my work, we have the open courts principle. There is no open prisons principle. It’s hard for people to see what happens there. Even as a lawyer who has clients in these institutions, it’s hard for me sometimes to see what happens in there.

It is often said sunlight is the best disinfectant. The requirement after 48 hours to seek judicial approval, the ability of a judge to manage a sentence after it’s been imposed, I think that will provide some information, sunlight and insight that cannot only address individual issues but act systemically to change the public’s mind. I think in the legal profession for too long we let Latin phrases handcuff us, and we do that willingly — functus officio. The judge is unable to do anything except when we say that the judge is — except in conditional sentences, probation or ancillary orders where judges can administer these things.

I think it is a step. It’s not going to correct everything, but it’s a necessary step, and it’s a step that’s 30 years too late. We’ve been waiting 30 years for it. Let’s get on with it.

Thank you, both. We have three more questioners and about 15 minutes before a hard stop.

[Translation]

My question relates to what Ms. Campbell just said.

Ms. Campbell, when you talked about the fact that there hasn’t been a systemic change in 50 years, I’d like to link that with what Ms. Latimer told us earlier, that a review of the law should have begun in January 2023 and that we were being invited to undertake that work, here in committee.

If I understand correctly, we haven’t done, in the prison field, what we had to do in the labour field, i.e., move from a regime where work accidents were physical accidents, to the reality of today, where the problems are mostly mental health problems.

In the same way, have we refused to see that in prisons, it’s the same thing? Mental health problems are a major concern in the prison world. In your opinion, is a radical change needed in the way we look at these issues in the world of federal penitentiaries?

[English]