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]

I would certainly argue that radical change is needed. As people here have said, so many people in prison have mental health issues or other cognitive challenges. At the same time, some of them have done things that are truly harmful to individuals and society. Which do you address first? You want society to be safe for everyone, yet some of the people appearing in the courts — many of the people — are there because they didn’t have any control over their behaviour. I’m not speaking of everyone. There are some people, obviously, who knew exactly what they were doing and need to be out of society for a period of time or potentially forever. They simply can’t manage in society.

However, I think we do need to rethink how we are treating people at the margins of society, because it’s just far too easy to send them to prison and forget about them. That’s why the Office of the Correctional Investigator was created 50 years ago. It was so closed in the prison, and when the riot happened at the Kingston Penitentiary, it was this outburst of rage and anger. I visited Kingston Penitentiary about eight years later, and they had kept the one range as it was, and you see porcelain fixtures that had been pulled out of the concrete wall. It makes you wonder how enraged a person had to be to do that. The Office of the Correctional Investigator was created in large part to provide an outlet for prisoners to bring some light to bear — to give them some access to a remedy.

Fifty years later, we haven’t come that much further. People say that if an inmate is not happy or something is going wrong, they can call a lawyer. Well, first of all, they have to find a phone. This is so prosaic — find a phone. They have to find the name of a lawyer and find the phone number. They have to find a lawyer who will take their call. If they’re just left to their own devices, access to remedies is formidable. I’m not sure everyone realizes that.

Again, I’m not saying that everyone inside is suffering from some disability or deficit, but so many of them are, and they’re just cast aside.

Thank you, both.

Thank you all for your testimony and for your work. I’ve been a poverty law lawyer, not a criminal lawyer, so I’m learning quite a bit. I understand about the intersectionality of issues and the social determinants of health, but I didn’t really understand. You know, you could read statistics, but going into a prison is when you actually learn.

To your point, Ms. Campbell, when I went into Grand Valley Institution, I actually spoke to a correctional officer — correctional personnel. She said she had been off on mental health leave and was just returning. It just felt like it was the fragile-looking guarding the even more fragile. It just felt like there was so much fragility. It just felt horrible and unsafe for everyone. It’s a tough gig, and it’s tough every which way.

Mr. Spratt, you said that judges are aghast at how their sentences have been interpreted in practice. I wonder if that has been translated into support for this or how we could use that to support this bill. That would be my question for you.

Professor Iftene, you have published extensively. It’s impressive. In your opening statement, you referenced one report. If there is one report that we could look at to support this bill, which one would it be? I didn’t see it, so could you address that?

We’ll start with Mr. Spratt.

It’s always hard to get judges to publicly comment on things like this, but I think we can take some guidance from some of the judicial commentary about the state of our institutions. Quite often, we hear judicial commentary about the state of our provincial institutions because that’s where many of the accused people are before they come before the judges. We’ve seen a trend over the last number of years about judges increasingly speaking out about conditions that people are housed in. I think there is an increasing recognition that jails and people in custody is an admission of the failure of society and of taking care of each other.

The first time I noticed this was a decision from — I think it was — 2019. I think it was Justice Schreck from Toronto commenting on the Toronto South Detention Centre, which is a provincial reformatory but suffers from many of the same problems that this bill seeks to address. I’ve never seen a judge speak more frankly about conditions in custody — about soiled and bloodied linens, inadequate food, access and the deliberate political choice. It’s a secret to many, but not to people in power, about what’s happening. To hear a judge talk about the deliberate political indifference to those conditions was shocking. We’re seeing that more often.

One of the benefits we have here is that this committee is not indifferent. There’s a bill before this committee that could make a difference and will require change that will be hard to implement. But if fixing jails, prisons and conditions had been easy, it would have been done already. Just because it’s hard and may require reflection and change isn’t an impediment. We’re seeing more of that commentary in judicial decisions going forward. I think you can take some keys from that.

I think the one you’re mentioning is the one that I submitted to you as appendix A. It’s a report called Do Independent External Decision Makers Ensure that “An Inmate’s Confinement in a Structured Intervention Unit Is to End as Soon as Possible”?

The reason I directed you toward that is because one of the big issues we’ve heard tonight comes down to the way that Correctional Service Canada finds ways and loopholes, and does not actually often abide by the legislation; they find ways of abusing a lot of the powers they have. That comes down to a lack of accountability and transparency. That’s what the provision regarding judicial oversight, both in SIUs and as a remedy, will help with.

I think this report is very clear. It’s using data from the CSC’s first year of running these structured intervention unit. It shows that when the Bill C-83 was passed, creating the structured intervention units, their big claim — what gives legitimacy to this — is the fact that there is this external, independent decision-making structure in place that will ensure accountability and prevent abuses.

Unfortunately, using the data that CSC has, it’s shown that it actually has not made a difference in terms of the abuses people have suffered. That really drives home the idea that just because it’s external or called independent, it is not actually going to be enough to ensure the accountability and transparency that we’re looking for, so we might need to look further. And the only next step is a court.

Thank you. We’re going to have to forego Senator Klyne’s and Senator Cotter’s second-round questions to ensure Senator Pate, as the sponsor, gets to do cleanup.

I don’t know about that, but I do want to pick up on the point that Senator Simons raised about the definition. Because Bill C-83 amended the Corrections and Conditional Release Act to remove segregation, the definition that we have put back in, which was actually a definition we looked at when we were looking at the amendments — the CCRA back with the Senate amendments to Bill C-83 — was to actually require the structured intervention unit definition to include what segregation used to be. So in fact, the ghost cells and hidden cells would be covered, because it’s the condition of confinement and not necessarily the name that’s attached that defines something now. Under this bill, it would define it, then, as a structured intervention unit.

If you see some ways to improve that, I would be happy, but the only other option that we saw through the law clerk was to go back to the old definition. That would be a whole other series of amendments, so we chose to redefine that.

In addition to the issues you’ve raised, Ms. Campbell, about access, since the SIUs have been put in place, there have also been ongoing changes to the phone system. You said, “find a phone.” When people are locked in their cells, there is no phone in their cells. Am I correct? Yes. In addition, there’s usually a card that people have that has to have all approved numbers on it. So in addition to the issue of whether you know a name and a number, it first has to be prior approved. With this provision, there could be — in the general access numbers that people have access to in prison, there’s supposed to be a Legal Aid number. So I’m very interested in your proposal. If you have suggested wording, Mr. Spratt, about how to do that, it would be welcome.

Finally, because we know that the funding that was approved for outside-contracted beds has not actually been utilized for those purposes, I would be interested, Ms. Campbell, on other ideas you have about funding and how it could be reallocated, as well as any other examples of times when there have been attempts to impose accountability. I can speak of deputy commissioners for women, for instance. If you have other examples that would benefit us, that would be useful.

Would it be possible to invite you to communicate those thoughts in writing, if you have any? We’re running right up against the time when we need to wrap things up. Would that be acceptable?

Yes.

Yes.

We appreciate it.

Colleagues, this brings us to the end of our meeting. I’m constantly effusive about the quality of our witnesses, and the help they provide to the committee. In that sense, I’m extending the collective feeling of the committee in expressing appreciation for the contributions you have provided today to the work we’re doing. Thank you very much, Mr. Spratt, Professor Iftene and Ms. Campbell.

We will continue deliberations with respect to this bill, but we have other business tomorrow in relation to a different bill; we will be doing clause-by-clause consideration of it.

(The committee adjourned.)