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Bill C-83 - Third Reading - Corrections and Conditional Release Act

Honourable senators, I rise today to speak to third reading of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. I admit that I have difficulties with this bill as I am an advocate for ending all forms of segregation or isolation, which this bill simply does not accomplish. However, I feel that our Standing Senate Committee on Social Affairs, Science and Technology did an admirable job in making important amendments that go a long way toward improving this piece of legislation.

Colleagues, in 2018, the British Columbia Supreme Court ruled segregation unconstitutional. In their reasons for judgment, they concluded that the current system:

. . . places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. Some of the specific harms include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour. The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to segregation are subject to the risk of harm to some degree.

The men and women subjected to these torturous conditions are often not in segregation because they pose the greatest risk to public safety, but rather because they have complex needs, including mental health needs, that were previously unmet in the community and that cannot be adequately responded to in a prison setting.

Honourable senators, as was noted by the B.C. Supreme Court, the Office of the Correctional Investigator has documented that half of all women in conditions of segregation in federal prisons are Indigenous. The majority reported that they or a family member had attended residential schools. Two thirds of their parents had substance abuse issues. Half had been removed from their family home. Almost all had experienced traumatic experiences, including sexual and physical abuse, and addictions issues.

The B.C. Superior Court further ruled that segregation violates the equality rights of Indigenous peoples and those with mental health issues. They found segregation to be discriminatory against these vulnerable population subsets. Expert witnesses at the Social Affairs Committee reiterated their concerns that Bill C-83 would do nothing to address the systemic discrimination problem. They told the committee that structured intervention units represent a continued reliance on isolation as a default to try to manage complex needs.

Honourable senators, while Bill C-83 changes the name of segregation, it does not do away with the torturous conditions that are at the root of this harm and whose constitutionality the courts have questioned. Prisoners in so-called structured intervention units, or SIUs, will still continue to spend most of their day in isolation. Contrary to court-established requirements for hard-time limits on segregation, isolation under Bill C-83 can continue indefinitely.

Expert witnesses testified at committee that Bill C-83 represented a missed opportunity to move away from the same regressive patterns of responding to mental health and other needs with measures focused on security restriction and force. I was pleased to note that the committee responded with a series of amendments aimed at fostering credible, effective and humane alternatives to isolation that experts have been recommending for decades and that are increasingly recognized as a constitutional necessity.

First, the committee implemented a requirement that prisoners cannot be kept in a structured intervention unit for more than 48 hours without authorization by a Superior Court. This amendment reflects former Supreme Court Justice Louise Arbour’s recommendation that judicial oversight of segregation is the best way to uphold the human rights of prisoners and prevent human rights abuses. The requirement to make an application to court will also act as an incentive to Corrections Service to find alternatives to isolation is reinforced by other committee amendments that seek to ensure access to existing but underused alternative measures.

Honourable senators, courts have recently made clear that while those with disabling mental health issues should never be isolated, they are too often precisely the ones who end up in such conditions. This often results in devastating consequences. The committee heard that those with disabling mental health issues require care and treatment in a hospital or mental health facility, not isolation in the very conditions known to create and exacerbate mental health issues.

The measures necessary to eliminate segregation for those with mental health concerns already exist in clause 29 of Bill C-83. Clause 29 allows for the transfer of federal prisoners to community health services, including mental health services, for treatment. The Parliamentary Budget Officer estimates that these transfers would cost a fraction of what the cost per person would be for Bill C-83. Despite this, these transfers are discretionary and, in practice, underused and curtailed by regressive CSC policies.

Through an amendment by our Social Affairs Committee, they have added a specific reference to mental health services to encourage use of clause 29 for this purpose. Where an individual is found to have “disabling mental health issues,” the amendment would require that they be transferred to a psychiatric hospital. In a similar vein, the Corrections and Conditional Release Act currently allows CSC to enter into agreements with Indigenous communities to transfer both Indigenous and non-Indigenous prisoners to Indigenous communities to serve their sentence through section 81 or for conditional release through section 84.

The purpose of this legislation was to address the over-representation of Indigenous peoples in federal prisons and the historical circumstances surrounding the incarceration of Indigenous peoples, the need for culturally relevant support, reintegration and the need for Indigenous peoples who have greater control over matters that affect them. These provisions are also, however, rarely used in practice.

Honourable senators, given the Correctional Service of Canada’s stated support for section 81 agreements and the provision’s current reference to non-Indigenous prisoners, the committee’s amendments to sections 81 and 84 seek to facilitate access to these measures. Where Bill C-83 would have restricted sections 81 and 84 to only Indigenous governing bodies and Indigenous organizations, the committee’s amendments expand them to ensure that both Indigenous and non-Indigenous community groups can also enter into agreements to support Indigenous prisoners as well as prisoners from other marginalized groups in the community.

Honourable senators, when prisons rely on isolation, whether that’s called segregation, structured intervention units or some arbitrary term, those who suffer the most are women with mental health issues and those who are racialized, including Indigenous and Black prisoners. The committee’s amendments aim to put in place credible alternatives to isolation and requirements to use them as first steps toward an end to isolation by any name for all.

I would like to thank all members of the Social Affairs Committee, especially our colleague Senator Pate, for their good and necessary work on this bill.

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