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Pate says rejected Senate changes could have saved government prisons bill

iPolitics with Kim Pate 25 June 2019

A Senator says upper chamber amendments to the Liberal government’s prisons bill could have avoided a legal challenge that might threaten to strike down parts of the legislation.

Independent Sen. Kim Pate said in a statement Tuesday that rejected changes to Bill C-83, which received royal assent last week, would have aligned federal rules on solitary confinement with a ruling yesterday from the BC Court of Appeal.

The court struck down indefinite use of solitary confinement — known formally as administrative segregation — under section 15 of the charter, which ensures equality rights, arguing the administrative provisions used by the Correctional Service of Canada (CSC) placed discriminatory burdens on Indigenous and mentally ill prisoners.

Under the current system, CSC officials are responsible for reviewing the use of segregation of prisoners in federal institutions.

The ruling upheld a decision from a lower court earlier this year that, among other requirements, ordered the government to create a new review system that would require authorization from a senior official to keep an inmate in segregation for more than 15 days. This official, though, cannot be the head of the respective institution or their subordinate, the CBC reported at the time.

Sen. Pate, who represents Ontario, said Senate amendments would have ensured the bill would survive this legal challenge because it would have required the CSC to apply to a superior court in order to keep a prisoner in isolation for more than 48 hours.

“The amendments that the Senate of Canada proposed reflect our duty to represent those most marginalized in Canada. The amendments rehabilitated a fundamentally flawed bill,” she said in a statement.

“Unfortunately, the House of Commons gutted the amendments that would have saved Bill C-83. Thankfully the courts are recognizing the inadequacy of the legislation.”

Bill C-83 will replace the existing system of administrative segregation in federal prisons with structured intervention units (SIU). According to the government, inmates sent to SIUs are entitled to four hours outside of their cells daily, instead of two under the current system, and they will have two hours of “meaningful human contact” every day, as well as access to mental programs and other supports.

In the legislation, the head of the correctional facility must rule on whether to keep a prisoner in an SIU after five days of their admission and the corrections commissioner would then need to approve of keeping an inmate in an SIU 30 days after that decision and every 60 days afterwards. An external decision-maker appointed by the public safety minister would need to review an inmate’s confinement in an SIU in certain circumstances.

In a statement, Scott Bardsley, a spokesperson for Public Safety Minister Ralph Goodale, said the government is reviewing the B.C. decision, though noted the court did not make “any findings about the constitutionality of C-83.” The ruling, he noted, specifically mentioned the legislation was not before the court and would abolish administrative segregation.

“The court ruled on the current system of segregation, which can offer little or nothing in the way of meaningful human contact,” Bardsley said.

“The new system created by C-83 is fundamentally different because it mandates daily opportunities for meaningful human contact, doubles the minimum time out of cell, enhances programming and mental health care, and is subject to binding external oversight.”