The Power of Perspectives

The Canadian Bar Association

Kim Covert

Bill C-83: Vague language could render good intentions meaningless

December 10 2018 10 December 2018

 

It could be said that when it comes to the Corrections and Conditional Release Act, the problem is not so much with what’s in it as with what is absent – a guiding philosophy.

In recent years language requiring “that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders” was removed. The CBA’s Criminal Justice Section recommends that this “guiding principle” be restored, and along with it provisions to ensure that prisoners are out of their cells and allowed human contact as much as possible throughout the day.

Bill C-83 is touted as legislation that signals a new direction in correctional law, ending the practice of solitary confinement and focusing on reintegration and meaningful human contact, greater independence of health-care providers and enhanced consideration of the intergenerational trauma of indigenous prisoners. All very worthy goals, says the Section.

But when it comes to legislation to change a pernicious behaviour that many see as having a useful benefit, the devil is in the loopholes.

“We are concerned though about the degree of discretion in Bill C-83 for correctional administrators to deprive prisoners of basic rights and the lack of independent oversight to ensure that discretion is properly used,” the Section writes in its submission to the House of Commons Committee on Public Safety and National Security.

“Legislation is also required to protect prisoners’ rights during lockdowns and to limit the use of lockdowns,” the Section adds. “Without these important safeguards, we caution that efforts to end the use of administrative and disciplinary segregation would be ineffective and meaningless.”

The Section says it supports the stated purpose of the new “structured intervention units” called for in the proposed legislation, but worries that the sections dealing with these new units are too vague and “do not provide the necessary procedural safeguards to address any abuse of this new configuration of conditions of confinement.”

While Bill C-83 “contains several positive health-care obligations,” again, the relevant sections are vague and fail to establish enforceable standards. The Section supports the legislative requirement that Corrections recognize the professional autonomy and clinical independence of health-care professionals, saying the independence of health-care providers should be written into the Act. “Legislation is also needed to ensure confidentiality between health-care providers and prisoner patients so prisoners can trust their health-care providers,” the Section says.

The Section supports the inclusion of Gladue factors to be considered in the CCRA to codify existing case law, but cautions that the Bill should consider intergenerational trauma as a mitigating factor only in decisions regarding liberty rights.

Gladue factors are too often used against Indigenous prisoners in correctional decision-making,” the Section says. “Stronger provisions will be required to reduce the number of Indigenous prisoners in custody and at higher security levels, in keeping with the recommendations of the Truth and Reconciliation Commission.”

Above all, the Section urges the government to make sure it allows sufficient time for careful study and consultation on the measures contained in the bill with specialists in the field.

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