Good afternoon and thank you for inviting me to testify today in unceded Algonquian territory.
I'm from the B.C. Civil Liberties Association, which along with the John Howard Society, are the organizations responsible for the B.C. court decision that I know most of you probably read around the table. I'm not going to belabour the legal conclusions there. I'm going to take it as given that you understand what the court ultimately decided. I want to talk about a particular aspect of it today.
The has urged this committee to note that Bill represents an entirely different regime and, therefore, that the findings of the courts in B.C. and in Ontario really aren't that applicable.
As you've heard from other witnesses, including the correctional investigator and in our view, the harms of the existing regime remain possible under this new bill because nothing that this bill promises is guaranteed in relation to segregation. I would suggest to you, with respect, that the government's argument, which is that we're in an entirely new world and, therefore, the rulings have no or little relevance is misplaced.
While I don't have time to get into all of the bill's significant shortcomings today in that regard, I will point you again to the submissions of John Howard, the CCLA and the correctional investigator, with whom we largely agree. I want to focus my time today on the issue of oversight.
Without taking you through all of the facts, the B.C. ruling found, as a fact, that there has been a long history of a culture of non-compliance with law and rules in the prisons, specifically as it relates to segregation, to solitary confinement and to isolation. Also, there has been a similarly long history of resistance to the idea of external oversight of segregation placements. The court drew a clear connection between those two trends and I hope that the connection will also be evident to this committee.
The B.C. court spends pages and pages on this, starting with the government's own Vantour report in the 1970s, which concluded that the penitentiary service—as it was then known—had failed to comply with existing laws, regulations and policy. Justice Leask goes on to the MacGuigan report, which the court found “was a damning indictment of the absence of the rule of law in the penitentiary system.” It was actually after that report that the government put in place the independent chairpersons for disciplinary segregation and for disciplinary hearings.
He arrives at the Arbour report on what happened at the prison for women, which found that there were not individual instances of failure to respect the law, but rather a culture that failed to respect the law. Of course, she recommended hard caps for segregation and judicial, or at least independent adjudicator, supervision.
Following Arbour, there were at least six other internal CSC reports, House of Commons reports, correctional investigator reports and the Ashley Smith inquest. Each of them made recommendations that pointed to the need for independent adjudication of segregation decisions. Every time, the government has decided to ignore those recommendations.
Here we sit again. We have a court decision, in which the conclusion, based on the evidence and findings of fact, is conceded as true by the government and the finding is that internal oversight won't do. That ruling sits atop a heap of expert recommendations, stretching back decades, and the undisputed findings of fact that there is systemic widespread failure in the prisons and a culture of non-compliance. In our view, Parliament should pass no bill without ensuring that this long-standing issue is resolved.
Just last week, at the Court of Appeal in British Columbia, Canada tried to argue again that what had happened was just a bunch of individual bad decisions, like misapplying the law, poor exercises of discretion and so on. The judges of the court of appeal actually interrupted and stopped the lawyer for Canada. The lead judge said words to this effect, “Canada, you're not challenging the findings of the trial judge. The trial judge found that there were systemic problems and that these problems were widespread and systemic in nature, not a series of individual issues. Why are we arguing about individual issues?”
This is really critical. The Government of Canada doesn't challenge those findings. In fact, it conceded that there has been serious systemic and persistent mistreatment and that there were breaches of rights.
When you're considering what to do about this bill, and indeed what to do perhaps about oversight, I think it's really important for the members to sit within that context, not the context of hope and aspiration that CSC has shown itself capable of administering these things properly. In fact, that isn't the finding. The Government of Canada has agreed with those findings by not challenging them.
That brings me to the issue of independent external oversight. To be clear, we don't support this bill in its present form. A particularly egregious shortcoming is that it continues the decades-long record of rejecting external oversight in favour of an internal system. We ask that Parliament not repeat that mistake.
It's been raised in this committee that the Ontario court said the review could be internal. In questions, I'd be happy to get into the differences between the two judgments and why there's that discrepancy.
Here's what the judge in B.C. had to conclude:
...I believe that the evidence led before me...demonstrates that CSC has shown an inability to fairly review administrative segregation decisions.
I therefore conclude that procedural fairness in the context of administrative segregation requires that...reviewing a segregation decision be independent of CSC.
By systematically failing to treat prisoners fairly, whether through a lack of resources or whatever other reason—I'm not saying it's malfeasance—CSC has not only breached the Constitution, but it's avoided the will of Parliament.
Is that the one-minute signal, sir?
I certainly agree with my colleague before me that oversight is critical with anything that happens within corrections because, sometimes, that is certainly missing.
I bring to the table my years of experience. I have over 30 years in corrections. I started off as a correctional officer at the medium-security Drumheller Institution in 1980. In 1983, I moved to the maximum-security Edmonton Institution. I was a correctional officer for 22 years there, and now I'm a program officer. That's still my substantive position.
As the president of the Union of Safety and Justice Employees, I represent thousands of employees who go to work every day in corrections to prepare offenders for their safe return to society.
Today we're talking about Bill , measures to make Canada's federal prisons more humane and improve offenders' chances of rehabilitation. USJE believes Bill C-83 is a first step in this direction. However, from my experience, I can say that new resources are needed to ensure its successes. Today, front-line workers burdened with heavy caseloads are at a breaking point. Something has to give.
Since implementation of the reforms proposed by the new bill will fall on front-line workers, this is what USJE recommends. From what we understand, there is approximately $484 million earmarked to support these changes. From USJE's perspective, some of these funds must be used to recalibrate ratios of parole officers and program officers to offenders.
Currently for parole officers, ratios are 30:1 at a max, 28:1 at a medium, and 25:1 at a minimum, but there's no back filling if a parole officer goes on a long-term sick leave or when they take vacation leave. There's no back filling. This means that, when the parole officers are not there, the offenders have significantly less support.
USJE believes that the ratio should be 20:1 for parole officers, and we also believe that back filling must be reinstated. For program officers working in the SIUs, the ratio can be no more than 3:1. At times, due to the complexity of the offenders, the ratio needs to be 1:1.
The changes Bill proposes for more meaningful interaction with offenders are positive, and that's important, because in all my years working in federal prisons, I've always felt that you need to treat people like people.
I spent an accumulation of approximately four years working in segregation units, and I can tell you that in all those years I never saw one offender who went in to segregation come out of segregation a better person.
The one thing I can tell you is that, when I'm on the street and I have offenders approach me—and they do approach me—or when I'm working bingo for my daughters to raise money for sports, they talk to me there. The one thing I've heard over and over again is, “Thank you, boss. Thank you for treating me like a person when I was inside. That helped me, on the outside, to understand.”
Those interactions definitely need to take place, and they need to take place inside the prison. Preparing offenders for their safe return to society requires real interaction, and that means programs, counselling sessions, mental health care and more face time with individuals. Providing this interaction is necessary to even the most challenging offenders.
Bill addresses some of these issues, but as it moves forward, the system needs to be better resourced to undertake these changes. Funding matters. Having been so long in the service, we've been through several deficit reduction action plans with the latest, of course, by the previous government. Previously, the action plans have not had a huge impact on the front line. Most of the effects were at middle management and upper management; however, the last time, the effects of cutting resources at the front line really had a significant impact.
As I said earlier, the members that I represent, particularly programs and parole officers, are really feeling the stress. USJE believes that new legislation is a good step in the right direction if resources are identified and put in place to improve offenders' chances for rehabilitation, to help keep Canadian communities safe and to ensure the safety of all employees working inside federal institutions.
Thank you for inviting me here.
I'm a Gladue writer, I'm an educator, and I live on a reserve. I could read my presentation, but I've made copies for you.
One of the things I'm doing currently is working with the neuroscience people at the University of Lethbridge. Because I've been doing this work of writing up Gladue reports, I've met a lot of offenders. I've been in Drumheller and some other prisons. There are all different names for these prisons.
I have the experience in talking to a lot of these people and in being in these institutions. One of the reasons I was quite interested in coming here was to share my experience of doing these reports and of talking to the people who are most affected.
I had a chance to look at the bill, and while I understand that there needs to be reform, a lot of native people have been living on reserves as if in prison. I say that because I do live on a reserve and it can be very oppressive sometimes. There are few resources, housing is a problem, and there are no property rights. Things such as that contribute to the problems that first nations people have in this country.
The Indian Act is our policy. The Indian agent was our warden. Now we have band councils that are designated to be our—
A lot of our band councils are not representing the people in our communities. We see that the native people only represent 4% of the population. There have been many studies done. The overrepresentation is 50% to 70% in the justice system. There's something wrong. To try to create something that is going to rearrange the deck chairs on the Titanic...because it's getting worse.
I live in a community where we have a major opioid crisis. We had seven deaths last week. We have problems, but unless we are able to deal with some of these problems head-on, I don't think we're going to see the reduction.
The Gladue reports were put into place because the Supreme Court in its wisdom saw that the sentencing judges had to look at the circumstances of aboriginal people. That hasn't been expanded to the correctional system, not to my knowledge. I write these reports, spend a lot of time, talk to people, get into the souls of these individuals, their families, and then it stops there.
The recommendations that we make oftentimes are not used by the correctional system. There's a need for healing plans rather than putting people in solitary, in what a lot of inmates call “the hole”. You know, it's counterproductive. Sometimes the only thing they get is a bible and many of them have literacy problems, so sticking them in a room for 22 hours a day, with no human contact and no chance to rehabilitate themselves, is just going to lead to their going into the communities and reoffending.
I would like to see the Gladue program implemented in the correctional system because we do a lot of this work, and where does it go? It has to go somewhere to be meaningful for families, for inmates. The work I'm doing with the neuroscience, you might think that's kind of odd. I've worked in criminal justice for many years, but I'm doing doctoral research with one of the leading neuroscientists in the world, Dr. Bryan Kolb. We're looking at ways in which we could perhaps look at some of the conditions, and not just the mental health, cultural and economic ones. Maybe we could look at the biology, the science, because in many cases a lot of these offenders have been misdiagnosed or not diagnosed at all. There are ways to treat them and to prevent or even reverse some of the effects.
FASD is a big problem. A lot of the individuals who are in the justice system have been diagnosed by various people: social workers, teachers, all that. They're labelled as slow learners, and so on. They're given Ritalin because they're hyperactive. Maybe they're just bored in school. I've talked to teachers for many years. We need to look at different approaches. Rather than spending a lot of money creating something new, maybe looking at new prisons, new-generation facilities, maybe we could look at expanding the Gladue program into corrections and utilizing that.
I also believe that we need to involve band councils. The terminology that is used in this bill is perplexing because they're changing it from “aboriginal” organization to “indigenous governing body”. That could have negative effects on indigenous people, because you have to get the permission. Right now there's no impetus. There's no reason why band councils should get involved in these issues like criminal justice. Make them. Put in the resources and get people in there like these governing bodies to help solve some of these problems.
I'm here with regard to implementing the Gladue into corrections.
Mr. Paterson, first of all, I want to thank you again for the excellent discussion that we had this week. It was very constructive. I understand that your association and our committee are seeking to improve a system that you think — and I fully agree with your rationale — has a number of shortcomings...
One issue that we discussed is the challenge of choosing between making changes and improving the current system. There may not be a difference between the two options, since the measures that we want to implement are designed to improve the system.
This brings me to the independence of the oversight body that you're proposing. You argued that an internal organization would be frowned upon for efficiency or partisanship reasons, for example. I understand your argument.
I would like you to consider the following comparison. When an internal issue arises, the police call on the internal affairs division. Within the organization, the division could be seen as both judge and jury. Nevertheless, the division is recognized as independent even though, as far as the police are concerned, it's made up of police officers.
I don't want to make the same comparison with CSC, but would having an independent group that reports to CSC pose a different problem and would it make this idea inconceivable?
If I understand your question correctly, let me just say that in respect of the police in the situation you raise where something goes wrong, where there is some type of misconduct and it's referred to professional standards or internal affairs, as they might say on TV, that is in respect of the discipline of members of the police. When someone has a complaint about the police, there is actually independent supervision of those reviews in most jurisdictions in the country.
Again, that's just where you have a complaint against the police. Your rights are at stake but your liberty isn't being threatened in the moment, and still we have une surveillance indépendante for that.
Here what we're talking about is substantial deprivation of liberty within a circumstance where liberty is already deprived. We don't know what types of resources will be there. We don't know what type of staffing will be put in. Therefore, it's possible that despite best intentions, and we think likely, there are going to be people who will continue in conditions of isolation very similar to what we see now, because this act doesn't prohibit it. We say, therefore, for those people, there does need to be an independent decision-maker who can come in to review those placements and that it isn't, as you recognize yourself, strictly analogous to an internal police disciplinary matter.
Mr. Paterson, I want to start with you on the question of oversight, which has come up a number of times. As we all know, there was a previous bill that sought to address issues related to solitary confinement, Bill , which was never debated in the House. One of the issues in that bill is that it actually had a mechanism, or at least more of a mechanism than we see in this legislation. The other issue was enforcement, as well, its having teeth, as we like to say.
I wonder if you can go into that, the importance of not just having a report or examining the particular case of an individual, but also having the ability to put remedial measures in place, so again understanding the link potentially with whether it's judicial or quasi-judicial oversight, or whatever form your organization believes that could take.
It is very important. Moreover, the court in B.C. concluded that it was necessary that an external oversight body actually have a decision-making power. The hope would be that if everything went pretty well under this bill, you wouldn't have to be using that all the time and whatever body was there to do that could also make other orders. It wouldn't just be stay and a release. It could be in order to make sure that you comply with the statute, or to make sure they get their four hours and so on. However, having that order-making power is necessary, just based on a sanguine view of the evidence of years and years of a culture of non-compliance within the institution. In our view, it is not logical in the face of that unchallenged evidence to suppose that recommendations would be good enough.
In addition to the factors I mentioned before, that review should come in also at the 15-day mark of someone's placement in an SIU, and when someone spends 30 days or more non-consecutively in an SIU, that review power ought to also come into play.
As for who does it, I understand there are some restrictions as to what the committee can do about that, but there aren't those restrictions at report stage. It would be a good idea for the government to get it right, and if it requires spending power, for the government to bring in something appropriate.
Thank you for the comment you made. I think Ms. Dabrusin said the same thing earlier. The interaction between prison guards and the inmates is so crucial.
I know when I attend the Grand Cache Institution in my area, which is medium security, I've wandered through there with the guards and intermingled with the prisoners. You see a very strong relationship between some guards and the prisoners, a very good working relationship. Then you see some intensity, as I guess I'll describe it.
Are we training our young prison guards adequately to deal with these prisoners? I used to escort prisoners for a number of years in my role as a police officer, and if you work with them and have a good relationship, it makes it so much easier.
Are we giving enough training, and will Bill do it for us?
Under proposed subsection 37.3(2), it still gives:
The institutional head may determine that the inmate should remain in the unit only if the institutional head believes on reasonable grounds that allowing the inmate's reintegration into the mainstream inmate population
Should that be left in his hands, or should it go to an alternate group?
Mr. Paterson talked about oversight. I've been a policeman for 35 years, and lived in B.C. for all of those 35 years. We had the public complaints commission of the Province of British Columbia that oversaw complaints against police officers. Even though we investigated our own, they also investigated us and investigated our investigators who did the job.
Is that what you're referring to in there, and do you think there's a need for that?
When you give one person the authority to do things, it might cause problems.
Thank you, Chair, and thank you to all our witnesses for being here.
Stan, I'm going to start with you. You've mentioned the $448 million that we're putting into corrections. It's certainly a conversation we've had here a number of times, that for these SIUs to work, there has to be investment, because for your program officers and parole officers who are trying to do the programming for these offenders, there needs to be enough. There needs to be the time they need. However, we also need to make sure that everyone, including your folks and the corrections officers, are safe while they're in there.
We had even the John Howard Society saying that there still needed to be disciplinary segregation. I was actually surprised at that.
With the investments and with this legislation, do you think your folks will still be safe when they're working in the prisons?
Thank you for the opportunity to speak to you today.
I've been researching issues associated with imprisonment in Canada for more than 20 years. My research focuses on charter rights issues in imprisonment, including solitary confinement, segregation, oversight and accountability of corrections, and on the imprisonment of women in particular.
In 2013 I convened an international conference on human rights and solitary confinement at a time when the issue was not on legislative and judicial agendas, so it's heartening to see attention being paid in courts and in Parliament to the human rights crisis and now well-known harms associated with segregating and isolating human beings. However, I have to say, it's disheartening to see this particular legislative response.
I'm going to spend my short time today on what I see as three key issues or problems with Bill , with a focus on the regime for segregating prisoners.
One, the proposal for structured intervention units actually expands rather than eliminates segregated conditions. Two, the proposal for SIUs, as I'll call them, has many of the same deficiencies and even fewer procedural safeguards than the existing regime, which has been found unconstitutional. Three, implementing this bill will be costly in human and fiscal terms in ways that are counterproductive to its ends. These issues lead me to the conclusion that the bill won't achieve its objective of eliminating segregation, and in my opinion, it is also unconstitutional.
The first point is that the proposal for structured intervention units actually expands rather than eliminates segregated conditions. These provisions give incredibly broad powers to the commissioner to designate whole prisons or areas of prisons as SIUs. Purposes for placing in SIUs are also very broad, including from proposed paragraph 32(a), to “provide an appropriate living environment for an inmate who cannot be maintained in the mainstream inmate population for security or other reasons”, undefined and unclear. It's very broad.
Proposed section 37.6 authorizes the imposition of SIU conditions and restrictions even before someone is in one of these new units, in other parts of a prison not designated as an SIU.
Also, with respect to time out of cell, proposed section 36, the opportunity for four hours out of cell and the opportunity for two hours of meaningful human contact are clearly a key aspect of this new regime that is said to make it very different from segregation, but there are many reasons built into the legislation that it might not be possible to actually achieve those hours out of cell. There is no actual way or mechanism or enforcement in the bill to ensure that prisoners are going to get the four hours outside of cell. I think you've heard from other witnesses this week and earlier that prisoners often don't even get the two hours outside of cell that they are supposed to be getting currently. There is no new provisions to make sure that actually happens.
The second point is that the proposal for SIUs has many of the same deficiencies and even fewer procedural safeguards than the existing regime, which has been found to be unconstitutional in the British Columbia case, and parts of it in the Ontario case. I know other speakers have and will speak about this. Not only is there no external oversight, but all of the reviews are internal. The regime itself has fewer safeguards and more discretion accorded to correctional officials. The internal review process includes vague factors such as “the appropriateness of the inmate's confinement in the penitentiary”, in proposed paragraph 37.3(3)(b).
Very much in this regime is left to regulations, which we, of course, do not have now and which are not subject to the legislative review process and this very process that the committee is engaged in right now, such as those proposed or future regulations related to the review by the commissioner after 30 days from the institutional head's decision to keep the person in SIU—which is actually 60 days from an initial placement, as I read the legislation.
As far as I can see, the much-discussed daily visit by a member of health care staff does not actually move the needle. As I read the legislation, it could be the nurse distributing medications. There is no requirement that it be some new form of review or care.
In addition, the existing requirement that the warden or designate visit the segregation area, or SIU, seems to be no longer required under Bill although it appears in the transfer part of the legislation.
Similar is the fact that health care staff recommendations that a person not be in SIU do not need to be heeded by the warden. There is no mechanism for that, again, and even the obligation is now gone that the warden meet with the prisoner who they have decided must remain in segregation to explain reasons and allow representation. It's replaced with a basic provision that the institutional head will meet with everyone in SIU every day.
Why are there fewer procedural safeguards? The reason for this seems to be that the government has attempted to create a system of isolating prisoners that is not called segregation, and they argue it's sufficiently different from segregation. Therefore, I think the logic goes that none of the findings of fact in the courts, in international human rights standards or the charter rulings about segregation apply. said in his testimony to this committee:
The point is this. We are getting rid of administrative segregation. The arguments pertaining to administrative segregation are thus no longer relevant.
That is what is so concerning, the idea that slapping a new coat of paint and a new sign on a segregation unit and aspiring to have people confined for fewer hours in there, but not ensuring it, takes us out of the purview of the charter and human rights laws. In my view, of course, it's clear that the charter does apply and this regime suffers from many of the same deficiencies as the existing one, and some new ones, and will likely be found to be unconstitutional.
I will leave it there.
Again, thank you for the invitation to be here.
I don't want to spend too much time talking about Aboriginal Legal Services, but I do need to say that our spirit name is Gaa kinagwii waabamaa debwewin, which in Anishinaabemowin means “All those who seek the truth”.
We have often appeared as an intervenor at the Supreme Court of Canada and before committees of the Senate and the House.
As you know, aboriginal people are grossly overrepresented in the prison system. In the context of this bill, we have to recognize that aboriginal people are also overrepresented in administrative segregation. The correctional investigator reported that the percentage of segregated aboriginal inmates increased by 31% between 2005 and 2015, and that is compared to a growth of 1.9% for non-aboriginal inmates. Aboriginal offenders have consistently had the longest average stay in segregation of any group.
As was recently stated by the Supreme Court of Canada in Ewert, the reasons for aboriginal overrepresentation in prison do not lie with the inmates, but with the system they are living in. The Supreme Court said that discrimination experienced by indigenous persons extends to the prison system.
We want to focus our submissions today on three issues: the structured intervention units, the failure of the legislation to require the consideration of Gladue factors and the need for independent oversight, and finally the issue of community reintegration.
In our submission, as many other people have said, we have said that the creation of structured intervention units runs the risk of repeating the same harms that are acknowledged to be created with solitary confinement. The bill fails to meaningfully address the underlying reasons that inmates are placed in SIU. The focus on inmates' safety and institutional security in the bill fails to address the finding of the correctional investigator that many inmates who are placed in administrative segregation are primarily at risk to themselves because they are suicidal, engage in other self-injurious behaviour or pose challenges to management because they have mental health or cognitive limitations.
Instead of addressing the mental health needs of inmates, this legislation only guarantees a minimum of four hours outside the cell each day. Clearly, more significant reforms are needed to truly address the underlying reasons people are placed in segregation. Reforms, such as those proposed in the jury recommendations in the Ashley Smith inquest, would ensure that, rather than warehousing inmates with cognitive disabilities or mental health issues and those who are emotionally distraught, CSC would be required to provide appropriate assessment and treatment.
We echo NWAC's submissions about the crucial importance for aboriginal inmates of access to appropriate cultural and spiritual advisers.
Second, in this bill, proposed subsection 37.3(1) ensures the head of an institution reviews the situation of an inmate in SIU on a regular basis, but that protection was also provided for in the previous regulations. Those protections have failed to protect inmates from long periods of time in solitary.
The proposed legislation offers no change to the discretion an institution has had to continue to approve continuous segregation. What is glaringly absent from the proposed legislation is any recognition that the deprivation of an aboriginal person's liberty occasioned by placing them in solitary confinement requires the consideration of the Gladue factors. While CSC has repeatedly stated that the Gladue principles inform their actions, there is nothing in Bill that actually puts that into practice. The gap between rhetoric and reality in this regard has been remarked upon a number of times by courts that have said that, despite CSC saying that they apply Gladue principles, they simply don't.
Given the inability of CSC to incorporate Gladue principles into its work, and specifically with regard to solitary, it would be naive to think that simply adding those words to the legislation would change anything.
That's why it's so important that there be an independent oversight officer position created that would allow for actual meaningful use of Gladue. This recommendation came from the correctional investigator in 2014-15. That should be adopted and the present legislation should be amended to allow for this position. If that were to occur, we think the wording that Gladue principles would apply to the decisions of that person would actually have some meaning.
To wrap up, our last point is on community reintegration. We're very concerned about the change to the wording on who can participate in an inmate's return to an aboriginal community. This is outside of the admin's say, but it's part of the legislation. The amended legislation deals with who can work to take inmates in under sections 81, 84, or 84.1.
Under the current act, the law says that this can be done by an aboriginal community and that “aboriginal community means a first nation, tribal council, band, community organization or other group with a predominantly aboriginal leadership”.
In this bill, it's proposed that the term “Indigenous governing body” be used, which means “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.”
We're very concerned about this. We have no sense of what it means to be “authorized”, and the addition of the link to section 35 certainly will disqualify many urban aboriginal communities from participating in the reintegration of their members. As you know, over half of the indigenous community in Canada lives in urban communities, and urban communities want to provide resources to those people who are being released from prison. We have an organization in Toronto, the Thunder Woman Healing Lodge, that is actively working to do this and would be denied this opportunity under this legislation.
We support the definition in an amendment that has been provided by NWAC, which would essentially take the definition in the current legislation, update the language and provide a better definition for what it means to be “predominantly” led by indigenous people. That, we suggest, is a change that would restore us to where we are instead of moving us back.
Good afternoon. Thank you for having us here.
I plan to show you that when you consult with the Native Women's Association of Canada you get comprehensive answers. I would like to discuss NWAC's answers with you today.
I'd like to tell you a little bit about NWAC. NWAC is a national indigenous organization with a mandate and resources dedicated exclusively to empowering disadvantaged and discriminated against women, girls and gender-diverse persons who are first nations, Inuit and Métis. NWAC examines and understands the systemic factors that contribute to their criminalization, their overrepresentation in federal prisons and their confinement under stringent conditions. We have extensive experience in advocating for indigenous women in the House of Commons, at inquests and in various courts. We know that indigenous women are now the fastest-growing population in Canadian prisons.
When discussing Bill , it's important to understand the underlying factors leading to indigenous women's criminalization. I want to highlight the gendered effects of colonization on indigenous women and how these effects should meaningfully respond to their needs. Simply stated, it's about needs: how to assess their needs, how to support their needs and address them in the institution, and how to address those needs outside of the institution.
I don't have enough time to address all of NWAC's concerns about this bill. Suffice it to say that NWAC endorses the Aboriginal Legal Services' submission and echoes their call for more significant reforms in structured intervention units to—as they say—truly “address the underlying reasons” people are placed in segregation. NWAC also supports the Canadian Association of Elizabeth Fry Societies' recommendation to abolish administrative segregation and similar isolating and restrictive practices in women's prisons.
First, I will touch on assessing indigenous women's needs. It is clear that the intergenerational effects of Canada's history of colonialism, residential schools, the gendered implications of the Indian Act on indigenous women's status and many other forms of displacement harm indigenous women. Almost all federally imprisoned indigenous women have had previous violent and traumatic experiences, such as physical and sexual abuse and problems with substance misuse. It's important for federal prisons to meaningfully respond to their realities in a way that's sensitive to these gendered impacts of colonization.
CSC's obligation to advance substantive equality and correctional outcomes for indigenous prisoners underscores the importance of using the Gladue principles to assess and respond to their needs, not their risks, but that is not what happens. Corrections overclassifies indigenous women's level of risk. A high-risk classification translates into restrictive and isolating prison conditions, where they don't have sufficient or culturally appropriate care. These restrictive, isolating and culturally inappropriate conditions are mentally and physically harmful to them. They perpetuate the gendered effects of colonization.
As you can see, indigenous women in federal prisons require the most support but are the most punished. CSC conflates risks with needs, and this is troubling, since the systemic and background factors elucidated in Gladue are intended to be mitigating. That's why NWAC wants to ensure that systemic and background factors affecting indigenous people are applied correctly.
We recommend that you amend proposed section 79 of Bill to ensure that every decision affecting federally imprisoned indigenous women and the gendered impacts of their systemic and background factors are considered and used only to assess prisoners' needs.
Now I'd like to talk about how these needs can be addressed in prison. The necessity of providing culturally appropriate and trauma-informed care was underscored during the community hearings at the National Inquiry into Missing and Murdered Indigenous Women and Girls. Those who testified about traumatic and harmful events needed resources to heal their reopened wounds. Proposed section 79.1 of Bill will likely call for federally imprisoned indigenous women to disclose their Gladue factors in order for their systemic and background factors, culture and identity to be properly understood and applied to CSC decisions.
Bill cannot ignore the re-traumatizing impacts their disclosure will have on them in the aftermath. In our brief, we recommend that culturally appropriate care be provided in these instances. NWAC recognizes the value that culture and spirituality can have in healing from the physical, mental, emotional and spiritual harms caused by Canada's colonial history. That's why it's important for federally imprisoned indigenous women who choose this healing path to have elders or indigenous spiritual advisers available to them. The element of choice is worth emphasizing when it comes to cultural and spiritual healing.
NWAC takes issue with the lack of consultation CSC affords indigenous communities, especially concerning culturally appropriate healing. The pan-indigenous approach to cultural healing in federal prisons is one example of CSC's culturally inappropriate practices. First nation, Métis and Inuit women are significantly different from one another. There are different communities within each of these groups, and each elder within these communities has their own teachings, traditions and protocol.
NWAC finds it concerning that not all people hired to be elders in prisons have earned the title of elder from their communities. To ensure that elders are responsive to the needs of the diverse groups of federally imprisoned indigenous women, NWAC recommends that CSC meaningfully and respectfully consults with federally imprisoned indigenous women and indigenous communities across Canada about the culturally appropriate use of elders and indigenous spiritual leaders in federal prisons.
We also call for a definition of “indigenous communities” that characterizes what legitimate indigenous organizations across Canada look like and excludes organizations that aren't legitimate. I'm happy to answer questions about that during the question period.
Thank you very much.
You may have already heard from Josh Paterson of the B.C. Civil Liberties Association. I know that they will have significant submissions on that.
The reality is that oversight needs to be independent of Corrections. In fact, without that, this bill is unconstitutional. I think it's very clear. We have many, many years of reports and recommendations. We have great laws on the books, but unless there is external oversight....
What would that look like? That could look like a tribunal or an independent decision-maker appointed to be independent from Corrections. It could be like a chairperson who is currently appointed for disciplinary hearings outside of Corrections. It could be a tribunal like the Canadian Human Rights Tribunal or some other tribunal. It could be the courts. You'd have to get approval from the court for any segregation or isolation over a certain number of days. For example, 15 days is the international standard under the Nelson Mandela rules. There are different ways that could be achieved.
My own view is that court oversight is the best and most likely route to have meaningful independence, because there's always the potential for regulatory capture and layers of administrative tribunals. It's very difficult to get timely results.
Mr. Chair, thank you very much.
I would like to thank all four of you for being with us. I would like to take my time to explore the issue of mental health or at least use a mental health lens.
I think this is a system that doesn't generate good mental health outcomes for anybody who's involved with it, be they correctional officers or inmates. I think the aspiration—and Professor Parkes, I appreciate your point on closing the gap between aspiration and ensuring that it actually happens—of doing away with administrative segregation is a very important one, a fundamental one.
We've heard a lot in the last few sessions about the Gladue principles and the Mandela rules. I would like to add to those the lens of reconciliation with our indigenous peoples and go with the assumption that, yes, inmates create social risks, which is why they are inmates in the first place, but to correct their behaviour, we have to explore their needs and we have to take their needs seriously. That is a fundamental, logical step.
I want to ask your opinion aside from the legal framework, or going below the legal framework, with regard to what would have to change inside the correctional system to achieve this culture change.
I would like to start with the question of who Correctional Service's personnel are, the women and men who do the work inside the correctional facilities. How much diversity is there? How do we hire them? Who should we hire? Are there changes that need to happen there, especially when we look at vulnerable populations and representation among our corrections officers?
I don't have specifics in front of me. That would be a good question for CSC. Maybe you've already asked it of them in terms of the demographics of the staffing.
Certainly, I guess the way I see it is that it goes to issues of diversity in terms of staffing but also to training. You see reports regularly from the union for correctional officers about how little training they get in mental health, for example, and some of those issues.
As well, if you look at the most recent Auditor General's report, the fall Auditor General's report, in terms of what proportion of CSC funding goes to community supervision and what per cent goes to corrections, you see that it's 6%. Forty per cent of people are on community release and only 6% of the funding is going there. It's also about the preparation for getting people out into the community and how little resources there are in corrections.
It goes to Ms. Damoff's point. I'm glad to see that resources are being allocated, but one would hope that a lot of those resources would be going to preparing people for release, because, again, indigenous women and indigenous people and others within corrections go well past their parole eligibility date. They go to statutory release or they go to warrant expiry in a way that's not good for public safety, so preparing them for release....
Thank you to the witnesses for being here.
I feel that at this time I need to suggest a motion. We've had nearly eight hours of testimony from witnesses. We've had numerous witnesses here testifying on Bill . Other than Mr. Stapleton's cautious optimism about Bill C-83, and the minister's staff who support it, obviously, no one is supporting this legislation.
We're required and asked by the committee to have our amendments to committee on Monday. Right now, it looks like the entire bill needs to be redone. The entire bill needs amending. Our role as a committee, as I understand it, is to give oversight of the minister's legislation and to provide direction. We are to suggest changes based on the needs of Canadians as well as the expert advice we receive.
It is therefore imperative to me that this legislation be right, since the rehabilitative capacity of Corrections for our inmates as well as other lives are on the line—other inmates, guards, as well as the people in our communities. Given our committee's role and the importance of the legislation, I cannot in good conscience move ahead with this legislation. I don't think this committee should either. It is deeply flawed. Making minor amendments would only paint over a problem.
Additionally, this government appeared before the court of appeal yesterday and asked for an extension on this particular piece of legislation. They did so for a number of reasons—i.e., to meet the demand of the 2017 court order that the government had under December 18 to get this passed to make its solitary confinement oversight process compliant with the charter.
I, therefore, move the following:
That, in light of recent testimony the Committee has heard during its study of Bill C-83, the Committee suspend its study in recognition of the Bill's flaws and inadequate consultations; resume its study once the Government of Canada has consulted with involved parties and ensured there are no flaws; and that the Committee report this recommendation to the House.
I put this motion before the clerk in both languages.
I want to thank all of you for your testimony and your help. In particular, I'd like to thank the Native Women's Association of Canada for providing a written and tangible amendment, because it really helps to ground us in the wording. Thank you for that.
I also wanted to touch on some other issues you raised. In particular, you've mentioned it a couple of times now when you talked about elders and who decides who's an elder. Partly, I guess, in terms of my question, is this something that possibly ends up more as a policy piece as to how you apply the legislation, or is there a piece that you'd want to see as a change in the legislation?
What would you propose as the best way? I've heard other people raise this too. You're not the first. How would you suggest that we broach that concern?
We do provide some recommendations in our brief that touch on potential amendments. One of them would be that under “Definitions”, we'd recommend making a proposed section 85.1, where there would be a special definition for indigenous inmates. It would say, “For Indigenous inmates, health care also means mental health, cultural and spiritual care provided by Elders or Indigenous spiritual advisors, at the Indigenous inmate’s discretion.” That would be one example.
Under “Health care obligations”, for proposed section 86.1, we would add under proposed paragraph 86.1(a), which talks about “autonomy”, that health care shall be provided to inmates and this service shall “support the autonomy and the independence of Elders and Indigenous spiritual advisors and their freedom to exercise, without undue influence, their judgment in the care and treatment of Indigenous inmates”.
Those are two examples, and we would also propose a new paragraph (d) in proposed section 86.1, which would say something like, “following an Indigenous inmate’s disclosure of any factors in 79.1(a) to (d), provide the Indigenous inmate culturally appropriate, one-on-one counselling in their preferred language with either a registered mental health care professional, Elder or Indigenous spiritual leader, at the Indigenous inmate’s discretion.”
The word “elder” gets used a lot. When it's used in a professional sense, it has a different meaning. One of the difficulties we have is that a correctional institution may have an institutional elder, and that's an elder that the correctional institution says is an elder. That's fine, but that may or may not.... It often has great meaning to inmates, but for some inmates it has no meaning because an elder is someone you choose. You don't go to “elder school” and you don't get—
Voices: Oh, oh!
Mr. Jonathan Rudin: I've been contacted by people, very well-meaning people, who say, “Give me the list of elders.” It's not analogous to religious leaders.
What it means is that the institution can provide what the institution provides, but it has to realize that is not the response to an individual if someone says, “The elder that I need is this person, because that's my tradition”.
CSC moves people across the country. You can be Mi'kmaq and be in B.C. The odds that you're going to have a Mi'kmaq elder in B.C. are pretty low. If you want an elder, and there's someone who can provide that service and that person is there, they should have access to the institution to provide that service. That's not the way the situation is currently working.