Thank you very much, Mr. Chair.
I appreciate the invitation to be here to talk about this important bill that you're considering.
Some of you may know that the John Howard Society provides services to support the reintegration of prisoners into communities, and other services across the country. We serve about 60 communities. We are particularly concerned and all committed to just, effective and humane criminal justice in corrections. Administrative segregation has been a long-standing issue of ours. While Bill purports to end solitary confinement and administrative segregation, there is a very real risk that this bill will perpetuate the harms of prolonged solitary confinement under another name. In these brief introductory remarks, I really want to highlight what those risks are.
An analysis of Bill , in terms of its fairness, effectiveness and humanity, reveals its vulnerability on all three counts.
First of all, prolonged isolation is inhumane due to its devastating physical, psychological and mental health consequences. The UN has defined prolonged solitary confinement as the confinement of inmates for 22 hours a day or more without meaningful human contact for more than 15 consecutive days, and it is regarded as a form of torture. Whatever the confinement is called, whether solitary confinement, segregation or structured intervention, if the actual result is that people are in cells for 22 hours a day or more without meaningful contact for more than 15 days, it's inhumane.
There are a number of points that I would like to highlight with respect to the inhumanity.
Mental illnesses are exacerbated by placements in isolation. There is nothing in this bill that would protect mentally ill prisoners from being subjected to prolonged isolation. Daily visits by health care professionals are required now, and they didn't protect the many who have committed suicide in segregation cells, Devon Sampson being a recent example. In the bill, the health care professionals can only make a recommendation to the decision-maker, who is a non-independent CSC official. Mentally ill prisoners could seriously deteriorate and suffer in SIU isolation.
Proposed subsection 36(1) provides opportunities for a prisoner to be out of a cell for four hours or more per day and for a minimum of two hours per day in “programs, interventions and services that encourage the [prisoner] to make progress” on the correctional plan. I highlight the word “opportunities” because I think that the previous panels that appeared before you made it sound as though prisoners would be out of their cells for four hours a day. An opportunity is a chance that something might happen, but unless it actually happens, federal Canadian prisoners will be subject to cruel, isolating segregation.
The infrastructure—both the physical and human resources—is not in place to allow prisoners to have this amount of constructive time out of cells. The proposals in Bill have not been costed, and thus no resources have been allocated to implement the bill. It seems that this bill is being presented a bit prematurely because there's no real way of knowing the range of program supports that will be available to people in these structured intervention units.
While the opportunities are presented in proposed subsection 36(1), proposed subsection 37(1) takes those opportunities away for a variety of reasons. It lists three main ones. The first is if the prisoner refuses. The second is if there's a failure to comply with reasonable instructions, and the third is undefined prescribed circumstances reasonably required for security purposes.
If there is inadequate infrastructure, it's easy to decline to give prisoners four hours out of cells per day for security reasons. There are a lot of other reasons why prisoners remain in cells now, and we'll get into that a bit more later.
There's also no definition of “meaningful human contact” in this bill. It can't be simply communication with correctional officers or other prisoners, or walking alone in a concrete yard. We need to have a clear definition of what is meant by “meaningful human contact”.
The second point is that the process is unjust. It is settled correctional law that a denial of residual liberties triggers section 7 charter rights. As the Supreme Court of Canada case May v. Ferndale Institution determined in 2005, a placement in more constrained circumstances constitutes a denial of residual liberties. Fundamental justice is not reflected in Bill .
By eliminating disciplinary segregation, the bill actually rolls back procedural rights for those placed in segregation or SIUs for disciplinary reasons. There is no longer an independent chair as a decision-maker. There are no caps on the length of time the residual rights can be limited, and there is no right to representation for those who are being subjected to this more confined containment. All decisions relating to the SIUs are within the discretion of CSC, with no independent oversight or adjudication, no limits on the duration of placement and no counsel or representation for prisoners. The lack of fundamental justice protections when residual liberties are denied is unjust.
Moreover, many mainstream prisoners, particularly those at higher levels of security, do not get two hours per day of programming interventions or services to help them make progress on their correctional plans. If that level of programming and intervention is not also available to the mainstream population, perceptions of unfairness will arise that could lead to unrest in the prisons.
Disciplinary segregation provisions allowed for prisoners who committed institutional infractions to be held accountable through a proportionate denial of residual liberties in a system that provided some measure of due process protection. Under this bill not only will the prisoners be stripped of those protections, but they will be given a minimum of two hours per day of programming to help them make progress on their correctional plan. Given that rule-respecting prisoners would not likely have access to such intensive programming, a perverse system of rewards is established, which will be perceived by other prisoners as being unfair.
Third, abolishing administrative segregation in favour of SIUs will likely be ineffective. The abolition of administrative segregation is a radical change in an institutional climate that is resistant to change. The success of the SIU vision presented to the committee by is dependent upon the adequacy of the resources for infrastructure programs and appropriate personnel and upon correctional authorities, who are generally resistant to change, implementing these provisions consistent with the vision and providing opportunities to be out of cells.
Abolishing administrative segregation may affect the safety of prisoners and staff. The ability to move inmates who are attacking each other or staff quickly away from each other is an important short-term measure to reduce violence. Prisons can be terribly violent places and people can get hurt. The Union of Canadian Correctional Officers is telling us that the loss of administrative segregation will result in greater violence. If correctional authorities believe their ability to prevent violence is being curtailed, it will affect the manner in which the bill is implemented.
The John Howard Society did not advocate for the total abolition of administrative segregation, fearing that the inability of correctional officers to quickly separate prisoners attacking each other would be dangerous. It also feared that unless the existing legislative framework was the basis for fixing administrative segregation, new units would emerge that serve to isolate prisoners but without the needed legislative protections—solitary by another name.
The John Howard Society wants any regime that could lead to prisoners actually being alone in their cells for 22 hours a day to be more just and humane. We think the way that we can do this is by capping the amount of time spent in such isolation to 15 consecutive days and 16 a year, having independent adjudication relating to decisions, and placement and maintenance around those decisions being delivered by an independent adjudicator.
In conclusion, there is nothing in Bill that would prohibit prolonged confinement in isolation. The devastating harms that have befallen Ashley Smith, Eddie Snowshoe and countless others would not have been relieved by this bill if CSC had decided to continue their isolation. In clear conscience, the John Howard Society of Canada urges you not to pass Bill C-83.
I have with me Lawrence Da Silva. I think it's important that you hear from people who have actually experienced long periods in administrative segregation and other types of placement. I think he can explain more clearly the realities and the effects of prison culture that will make it difficult for people to be out of their cells for that period of time and that will make this a difficult regime to work with.
I suspect I've used all of our time.
Thank you. I want to start by acknowledging that we are on the unceded territory of the Algonquin people.
As stated, I am the director of advocacy and legal issues with the Canadian Association of Elizabeth Fry Societies. We are an umbrella organization composed of 24 Elizabeth Fry Societies across Canada working with and for criminalized women and girls. Together, we work towards a Canada without prisons as we support human rights-based training, provide preventative programs and services, and facilitate women's reintegration into the community.
As the director of advocacy and legal issues, I have the privilege of working with and supporting over 20 volunteer advocates—some of whom, like Ms. Pierini, who you will hear from in a bit, were formerly incarcerated—as we go into the prisons for women on a monthly basis to monitor conditions of confinement.
Though I am trained as a lawyer, the best education I have received to date has come from the women I meet going into Canada's prisons. I hope to communicate some of the concerns that they have presented to me regarding Bill .
When the Corrections and Conditional Release Act was first introduced, it was seen as human rights legislation, responding to human rights abuses and rising rates of imprisonment. Since its introduction, however, we've seen the exploitation of the security-focused provisions and the underutilization of provisions like sections 81 and 29, aimed at decarceration. CAEFS, along with the Office of the Correctional Investigator, has documented this pattern for decades, and we believe that Bill will not have the impact intended and, in fact, that portions of the bill actually represent a regression in terms of legislative safeguards like those Ms. Latimer has already referenced and in terms of decarceration.
I want to focus first on section 81. The bill replaces the term “indigenous community” with “indigenous governing body”. However, this is an undefined term, and it will definitely have an impact on who is able to apply for section 81 agreements. There are no corresponding changes to the legislation to ensure or even to support the development of more section 81s, as has been called for by the Office of the Correctional Investigator in his latest report. This leaves us to believe that the changes will actually further limit an already underutilized provision at a time when the number of indigenous women in prison is described by many, including the OCI, as representing a human rights crisis.
Amendments to section 29 frustrate the provision's legislative purpose and will have a particular impact on women prisoners. The number of women with complex mental health needs is on the rise, according to the OCI's latest annual report. More than half of all women in prison are identified as having mental health needs, compared to 26% of men. The nature of women's mental health needs is impacted uniquely by the lasting effects of past abuse.
The Canadian Human Rights Commission reports that women use self-injury as a coping mechanism to survive the emotional pain rooted in traumatic childhood and adult experiences of abuse and violence. Corresponding to the higher rates of abuse experienced by women prisoners, the rates of self-injury and attempted suicides are significantly higher among women in prison as compared to among men. The multiplier effects of race and sex create a distinct discriminatory impact on federally sentenced indigenous women that affects their experience of incarceration from beginning to end.
The Office of the Correctional Investigator reported extensively on a similar repurposing of section 81 in its report “Spirit Matters”. CSC redirected money and resources meant for decarceration through section 81 agreements to internal halfway houses that were meant to provide indigenous-focused programming. To this day, section 81 is underutilized, and access to indigenous programs inside is seriously restricted.
Section 29 has also been historically underutilized and this amendment makes it possible to transfer women to structured intervention units within the prison, despite numerous reports and commissions stating that the prison environment is an inappropriate and inadequate environment for dealing with complex mental health needs. That applies to both men and women. A more robust investment in section 29 to decarcerate is needed, and the amendments, as they stand, will likely impede decarceration strategies.
Further, proposed section 29.1 enables the creation of additional classification systems, which will be done in accordance with what are unwritten regulations, so we have no way of knowing what those will look like or addressing them here today.
This is despite the fact that CSC's classification scheme, according to the fall 2017 report of the Auditor General, results in women being needlessly placed in higher security, unnecessarily causing them to be segregated in higher-security settings, delaying access to programs and prejudicing their chances of release and reintegration success. We have reason to believe—Ms. Pierini will dive into this later—that this will not be any different in these structured intervention units.
CAEFS has long recognized, likely because of our in-prison visits and our meetings with women affected, that segregation is practised in Canadian prisons in many forms and under many names, much more so than what is usually talked about as solitary confinement or administrative segregation.
I will quickly address a few of the points around the structured intervention units and, first, this idea of meaningful human contact, which Ms. Latimer has already talked about.
In the recent BCCLA and Canada case—it's 2018 BCSC 62—the attorney general actually argued that administrative segregation is not solitary confinement since prisoners have daily opportunity for meaningful human contact, but the court found that prisoners did not have meaningful human contact, and that routine interactions between staff and prisoners do not constitute meaningful human contact.
Without a definition, we have no way of knowing what this will look like. It's left completely to CSC, which has a history of poorly implementing or not at all implementing recommendations, to determine what meaningful human contact will look like, or later, it will be left to the courts to decide. In the meantime, how many will suffer as a result?
On the idea of duration, in the BCCLA case, the 15-day maximum prescribed by the Mandela rules—which are minimum standards—were stated to be a “generous” maximum, given the overwhelming evidence of the psychological harm that can occur after just a few days in segregated conditions.
Finally, the reasons for transfer are listed n Bill , including to:
||(a) provide an appropriate living environment for an inmate who cannot be maintained in the mainstream inmate population for security or other reasons;
“Other reasons” is very broad and leaves it well open for many people to be captured by this because of mental health behaviours that are deemed bad behaviours.
CSC has a duty to accommodate prisoners with mental disabilities who cannot cope in the general population. If it is unable to accommodate those prisoners without escalating their security classification or segregating them, whether in segregation units, secure units or SIUs, then it should be transferring them to an appropriate in-community treatment facility.
I'll close by saying that as Dr. Zinger mentioned in his press release following the tabling of this year's annual report, units much like the SIUs proposed by this bill already exist in prison. At Nova prison for women, staff have renamed the segregation unit “Pod C” and allow women there additional time out of their cells and more social interaction. Many of the women being held in segregation in Pod C were placed there because of incidents of self-harm. The women in this pod believe that they are in segregation, and their mental health is deteriorating just as it would in segregation.
Calling these segregated conditions something other than segregation, even with slight improvements, does not change the detrimental experience or impact of those conditions.
I'll hand it off to Alia.
The Union of Canadian Correctional Officers represents over 7,300 members working in federal institutions across Canada. As law enforcement professionals, we represent a critical component of the Correctional Service of Canada, enabling the service to achieve its public safety mandate 24 hours a day, 365 days a year.
Recently, much consideration has been given to the role segregation plays within Canada's correctional system, both provincially and federally. It has been thoroughly studied and its effects analyzed and debated, both by academics and by critics of justice systems globally.
With the recent introduction of Bill , CSC will be forced to significantly change the manner in which it manages its offender populations. The passage of Bill C-83 will result in changes to operational policies that will markedly affect the operations of our federal penitentiaries, impacting staff and inmates alike.
Accordingly, UCCO-SACC-CSN, whose members represent a significant partner in the discharge of effective corrections, seeks to participate in the discussions about these changes. That being the case, the goal of this report is to provide perspective on the potential impact of these changes from a correctional officer's perspective.
Should Bill be successful, CSC will be forced to implement policy that will drastically alter the manner in which the most difficult segments of its population are managed. As we have seen through recent CSC policy changes to segregation in CD 709, by eliminating segregation and replacing it with structured intervention units, CSC will further struggle to achieve its mandate of exercising safe, secure and humane control over its inmate populations. We are concerned about policy revisions that appear to be reducing the ability to isolate an inmate, either for their safety or for that of staff as noted in proposed section 37.3.
This is not to suggest that Bill is not without merits. Tools such as body scanners provided for in Bill C-83 will enhance correctional officers' abilities to reduce the various types of contraband that threaten the safety of those working and living in federal institutions. However, in order to implement the bill in its entirety, there will be a much greater commitment required from the federal government to ensure its success.
While Bill seeks to amend several key components of the CSC framework, perhaps the most significant in relation to security operations is the elimination of segregation units within federal institutions. While UCCO-SACC-CSN recognizes that effective corrections require the ability to adapt, our members are also tasked with ensuring the safety and security of all offenders and staff in the institutions.
Eliminating disciplinary and administrative segregation will significantly impact the ability to maintain control over diverse populations. We accept that an overreliance on segregation as a disciplinary consequence may lead to negative outcomes. However, there are incidents in which swift and immediate responses to dangerous behaviour are necessary options.
In 2007, we witnessed the unintended impact of changes to correctional policy, namely CD 709, “Administrative Segregation”, and CD 843, “Interventions to Preserve Life and Prevent Serious Bodily Harm”. These policies significantly reduce CSC's ability to manage its institutions through the use of segregation. Although well-intended, these quickly led to a sharp increase in violence within federal penitentiaries.
Early data released through the Office of the Correctional Investigator on the impact of these amendments provide some indication of the operational outcomes of these changes. An analysis of the numbers found a clear correlation between release back into regular population and violent incidents. Releases declined to 4,025 in 2017 from 5,501 in 2012, while the number of those leaving segregation who were implicated in an assault rose to 321 from 244, according to the Office of the Correctional Investigator.
Furthermore, Correctional Investigator Ivan Zinger stated that the new strategy to limit prolonged segregation has had the unintended consequence of more violent attacks behind bars, and he's urging the Correctional Service of Canada to strengthen supervision and risk assessments to improve safety for inmates. While Mr. Zinger may suggest that these changes lead to unintended consequences, UCCO-SACC-CSN has been unequivocal in its position that this outcome would occur.
In the last two years we have seen institutions that, despite shrinking populations, are becoming more violent due to an organizational repose that reduced control measures—namely segregation—which appears to be correlated with further increases in assaults. While UCCO-SACC-CSN does not advocate for the unnecessary segregation of inmates, it does strive to ensure its continued availability as a population management tool without unreasonable policy-based restrictions or outright elimination.
Consideration also needs to be given to the transitional nature of Bill . Should this bill be implemented, all inmates who are subject to disciplinary segregation will no longer be the subject of this sanction, in sections 39 and 40. This will result in immediate changes to the management of violent offenders in institutional populations without apparent consideration for how they will be managed moving forward.
Bill seeks to replace segregation with the implementation of structured intervention units, the details of which are still vague. The bill will allow the commissioner to “designate a penitentiary or an area in the penitentiary as a structured intervention unit” for the confinement of inmates who cannot be maintained in the mainstream population for security and other reasons. This is proposed section 31.
Furthermore, within Bill references to segregation have been eradicated and replaced throughout by structured intervention units. As it currently stands, UCCO-SACC-CSN is of the opinion that the only units suitable for managing inmates who cannot be maintained in the mainstream inmate population for security or other reasons are CSC's existing segregation units. It remains unclear whether this bill will result in actual closures of segregation or more simply their renaming with something more politically appropriate, as in proposed section 31.
Regardless of where structured intervention units are situated within federal institutions, Bill also seeks to amend the manner in which the most difficult portions of the institutional population are managed. SIU inmates will be provided with the opportunity to interact with other inmates for at least two hours as well as the right to spend four hours outside their cell.
While these changes are undoubtedly well intended, they are not feasible under the current staffing and infrastructure models. Many of the inmates currently managed within segregation units are highly vulnerable and are segregated for their own protection. In order to provide them with the amount of interaction proscribed within the new bill, they will require direct and constant supervision from already limited numbers of correctional officers.
Conversely, the inability to adequately manage incompatible inmates will lead to consequences like those seen at Archambault and Millhaven institutions where inmates were murdered in separate incidents in early spring 2018.
In general, should we proceed to the SIU model as a replacement for segregation, it is our hope that these changes will be implemented gradually so they can be properly assessed and amended as necessary.
It is promising to note the discretionary power will remain with the commissioner to extend the proposed SIU status over 30 days, allowing correctional officers the ability to manage high-risk, volatile or self-harming offenders without hard-cap time frames.
As with the implementation of the SIUs, the ability for CSC to repurpose existing infrastructure to meet the criteria of Bill is unclear. Policy changes resulting from the passage of Bill will restrict an institution's ability to respond to the needs of specific inmates, the broader population, to meet its current mandate and to provide a safe work environment for staff.
Should these changes occur in order to continue to meet critical strategic priorities effectively, significant infrastructural changes at the institutional level are necessary.
Changes proposed by the bill will allow the commissioner to “assign the security classification of 'minimum security', 'medium security', 'maximum security' or 'multi-level security', or any other prescribed security classification, to each penitentiary or to any area in a penitentiary.” This is in proposed section 29.1.
From an operational standpoint, this wording appears quite vague. Historically, CSC institutions have been constructed with a security standard in mind. To attempt to retroactively change the security ratings of not just individual institutions, but areas within those institutions, seems to be at odds with the original vision of them. This would significantly complicate population management strategies.
The powers of the commissioner are also broadened in relation to transferring inmates within the various security levels of their institutions. It will reinforce the power of the commissioner to transfer inmates to different security levels, for example, transfer a maximum-security level inmate to a medium-security area. Given the security implications of these transfers, we feel that it is prudent to solicit correctional officers' input in these decisions, as we are most familiar with their behaviour and potential outcomes.
Additionally, UCCO-SACC-CSN has been calling for the creation of a special handling unit for female inmates since 2005. Despite every effort, some female inmates exhibit behaviour that simply cannot be safely controlled in regular institutions within the current infrastructural model.
In similar instances involving male offenders, CSC has the ability to transfer otherwise unmanageable inmates to the special handling unit. Historically, due to a lack of alternate options, this has resulted in female inmates being placed in segregation for exceedingly lengthy periods of time. However, under the new guidelines of Bill , CSC may be forced to involuntarily transfer these inmates on a regular and ongoing basis in order to be in compliance with the law.
The same set of circumstances that marked Ashley Smith's incarceration will become even more prevalent. This will serve neither the inmate nor CSC's legislative mandate, yet until changes to existing infrastructure are realized, they will be a necessary reality.
As a result of eliminating the segregation tool, CSC will be forced to rely on managing groups of inmates through the creation of subpopulations. Effectively, they are segregating inmates, without actually physically placing them in segregation.
I notice the chair is giving me the nod there.
First, I'd like to acknowledge that I am on the unceded territory of the Algonquin people.
It's an honour to be here to speak to this bill. I am the CEO of Native Counselling Services of Alberta. I have been involved in this business since being a parole officer, originally, 40 years ago, so I'm speaking with many years of experience, both in Canada and overseas. We operate two section 81 healing lodges in Edmonton, one for men and one for women, which is the only female section 81 healing lodge.
I'm going to stay focused mainly around the indigenous part of Bill . My focus is going to be around the accountability of the healing lodges. I'm going to speak to a couple of key things around the work we do.
First, I'd like to talk about the language used in the bill itself and address some of the changes in proposed sections 79.1 and 84.1, where the language proposed in the first section is to be “Indigenous governing body” meaning “a council, government or other entity”.
We're proposing that it be changed to “Indigenous governing body” meaning a council, government or “indigenous organization” that is authorized to act on behalf of an indigenous group, community or people that holds a right recognized under section 35 of the Constitution.
It's expanding that language a bit. There's a reason for that. I heard from my colleague from Elizabeth Fry about their concern for it. Our concern comes from a conversation with the Alberta chiefs and some of our leaders in the community about ensuring that it is an indigenous organization that is in fact delivering these services.
Later in proposed section 81.1, indigenous organizations are mentioned. However, we also propose that the government clearly define what an indigenous organization is—that is, that an “indigenous organization” is one that has a majority of its board of directors as first nations, Métis or Inuit; demonstrates expertise and program delivery that are grounded in an indigenous world view; and over two-thirds of the staff, in healing lodges in particular, of the agency identify as indigenous.
Proposed section 80 states:
||Without limiting the generality of section 76, the Service shall provide programs designed particularly to address the needs of Indigenous offenders.
We highly recommend that either in law or in policy the Correctional Service of Canada be directed to offer programs for indigenous offenders that are both culturally relevant and grounded in indigenous evidence-based research.
Further on section 81, for the proposed changes, we recommend that a proposed subsection 81(4) be added so that the minister may delegate full authority through section 81 agreements so that the director of the section 81 may carry out his or her full responsibility of the care and custody and supervision of offenders in a healing lodge. I'm speaking specifically about that because we have just renewed our agreement, and there's nothing in legislation that allows for the minister to delegate that authority. We've included it in our agreement, but it's not in law. We'd certainly like to see it in law.
In addition, proposed subsection 83(1) currently states:
||For greater certainty, Indigenous spirituality and Indigenous spiritual leaders and elders have the same status as other religions and other religious leaders.
We recommend that the following be added: “Elders should be utilized in all interventions regarding Indigenous offenders, including but not limited to mental health, behavioural issues and discipline”.
We currently utilize the elders' services in all of those areas in our healing lodge. It's very effective. It's a very effective means of accountability and it's an intervention status. A number of years ago, I was involved in an institutional riot where we brought elders in to help settle down the matter. It was very effective. It doesn't work in all cases, but it certainly should be considered as a key option.
Finally, in regard to sections 86 and 87, the proposed changes are that:
|| health care means medical care, dental care and mental health care, provided by registered health care professionals or by persons acting under the supervision of registered health care professionals;
While this is costly, we don't agree with this proposal. We suggest that the health care providers be on site. Further, this means to stipulate that the health care professional is on site at all times. Health care is an ongoing concern for all offenders. This change could make the situation a lot worse.
Again, I'm not going to speak to the specific issues, but I'd like to address in general the structured intervention unit. In answer to your earlier question, I'd like to believe the intent of this bill is honourable and that it can be effective.
I am aware of the violence. I am familiar with the level of violence in the institutions and the importance of the safety and security of other offenders and staff. I am also aware that elders have been at risk at times, because of the violence. We are in support of that type of separation of offenders.
However, if the question is whether we are sure these policies are actually honoured and being implemented, let's guarantee that. One of the ways to guarantee it is to ask for all medium- and maximum-security institutions to have an on-site ombudsman who reports to the correctional investigator. If that's the public's concern or the concern of my colleagues, then one of our guarantees would be to ask for that on-site ombudsman to be in place to review these cases. That would help us eliminate the kinds of concerns that some of us and some of my colleagues have.
I want to thank you. I am prepared to answer any questions.