The Canadian Press with Kim Pate 30 May 2019
A committee of senators has approved changes to a bill that aims to end solitary confinement in Canadian prisons — including a key change to require a judge’s approval to keep an inmate in isolation for more than 48 hours.
A number of human-rights organizations say Bill C-83 offers only a cosmetic rebranding of solitary confinement with no hard time limits on isolation or separation of inmates. The current law has such restrictions.
Sen. Kim Pate, who has called for the bill to be scrapped entirely, successfully sponsored several amendments at a Senate committee earlier this week, including adding the provision to add judicial oversight to decisions about how long an inmate can remain in isolation.
“The Correctional Service of Canada is the last branch of the administration of justice to have the Charter (of Rights and Freedoms) applied to it,” Pate told senators during the committee meeting on Monday. “We have it in bail provisions. We have it in search warrants. We have it in right to counsel. We don’t have it yet in the provision for jailing or isolating within the jail, which is segregation.”
Last October, Public Safety Minister Ralph Goodale said Bill C-83 would end the practice of segregating prisoners who pose risks to security or themselves to respond to recommendations from a coroner’s inquest into the 2007 death of Ashley Smith.
Smith, who was 19, strangled herself in a segregation cell at Grand Valley Institution in Kitchener, Ont., as prison guards looked on. She spent more than 1,000 days in segregation before her death.
Inmates who do pose risks would instead be moved to new “structured intervention units” where they are supposed to get better access to programming and mental-health care.
Josh Paterson, executive director of the B.C. Civil Liberties Association, says the amendment adding judicial approval for inmates placed in these units beyond 48-hours is a “huge step toward trying to ensure this bill is constitutional.”
His organization provided witness testimony to the Senate committee and is among several experts and groups saying they do not believe the bill as originally written would withstand a constitutional challenge.
Both the B.C. Supreme Court and the Ontario Superior Court have delivered decisions saying administrative solitary confinement is inhumane and, in the Ontario decision, unconstitutional if it lasts longer than five days. Both of these decisions are under appeal.
“It’s clear from the Ontario Court of Appeal decision and the B.C. decision that there has got to be a hard time limit on placements in isolation,” Paterson said Wednesday.
Another amendment passed by the committee would allow the correctional service to have Indigenous groups and community organizations provide more support services to help prisoners from vulnerable populations to reintegrate into the community when they are released.
Sen. Josée Forest-Niesing tried to introduce a change that would have, in essence, repealed the entire section of the bill that introduces structured intervention units in place of segregation.
Several senators on the committee balked at this, calling it a gutting of the bill. The amendment was withdrawn on the understanding it would instead be debated by the whole of the Senate at third reading.
Pate says she intends to support this when it comes back up for debate.
“It would be my hope that we would go much further and work to actually put an end now to practices of isolation, particularly for women, that have been found to inflict irreparable harm and that can amount to torture,” Pate said Wednesday.
“At the very least, however, we must meet the bare minimum requirements that courts have set out as constitutional imperatives. To do otherwise would be to abdicate our duty as senators.”
The committee plans to include some additional observations as part of its report back to the Senate including concerns that C-83 does not prescribe any training for correctional staff to help them identify and support inmates with mental illnesses. The senators also have concerns about a lack of detail on what kind of therapeutic programming will be offered to inmates who are placed in structured intervention units.
The committee’s amendments must be accepted by the Senate and then by the House of Commons if they are to become part of the law.
Paterson remains optimistic this will happen.
“I’m very hopeful that a government which promised to follow the recommendations of the Ashley Smith inquest, which is a promise to end the torturous conditions of isolation in Canadian prisons — I’m hopeful that they will make sure that the law that they pass respects that and that they will accept amendments.”