Pirakasini Chandrasegar | October 26, 2021
Over the last couple of weeks, multiple LSOU authors have touched on various types of bills; some that have passed and some that are still in the works, and as such, I too will discuss another bill that was recently passed which will cause serious implications to the rights and freedoms of prisoners in Canada. Firstly, I would like to acknowledge that when society discusses a prisoner's rights and freedoms, many are quick to dismiss the concept since there is a predisposed ideology that those who are convicted are not subject to any form of right, for some, this includes human rights. However, even though this perception exists, this piece, unlike any other I have written, will not lay out my thoughts or feelings, I will be as neutral as possible, laying out both sides of the argument and leaving it to you, the reader, to make an informed decision on where you stand with this bill.
Bill C-83, a bill that recently passed, ruled on solitary confinement in Canadian prisons, stating that such confinement is unconstitutional. When reading through the bill for the first time, we are able to take notice of how the bill puts a clear end to "Canada’s segregation or solitary confinement regime" (1), which are components that were also struck down by the Ontario Court of Appeal, stating that solitary confinement is unconstitutional (2). Although the end to solitary confinement may seem like a good thing to many, the bill also highlights that it is dependent on the Correctional Service of Canada (CSC) to adequately monitor and report on "[i]ts own human rights abuses within prison walls without any additional transparency or accountability measures" (3). However, by allowing the CSC to monitor its own human rights abuses, many scholars and politicians have pointed out that this bill, then, will not just preserve the status quo but would endeavor to make treatment and conditions worse for inmates. Notably, the CSC is regarded as an outlier “when it comes to judicial oversight of state actors" (4), and therefore, the CSC is not subject to the same form of judicial oversight, public accountability and scrutiny as the rest of Canada's justice system (5). Since the CSC is treated much differently in comparison to the rest of the justice system, prisoners in segregation face dire consequences; for example, Ashely Smith, a 19-year-old prisoner, was kept in solitary confinement in federal custody, however, due to the lack of accountability and oversight, the CSC overlooked the fact that Ashley was on suicide watch, leading to her unfortunate death (6). As such, according to many officials, removing solitary confinement endeavors to help improve the treatment of prisoners while also protecting the values upheld in section 12 of the charter -- a section that states that “everyone has the right not be subjected to any cruel and unusual treatment or punishment” (7).
Counteractively, on the other end, officials such as Public Safety Minister Ralph Goodale believe that by passing bill C-83 the legislation has progressively improved the CSC's ability to “successfully rehabilitate and safely reintegrate people who have broken the law, better protecting Canadians across the country" (8). Claiming that the lack of accountability and oversight within the CSC is nothing to be concerned about, officials are moving to state that bill C-83 will establish a process in which will attempt to implement "procedural fairness" and ensure that there is an open and transparent approach to decision-making (9).
The bill claims to do all of this, however, with the lack of accountability, public scrutiny and judicial overview, isn't the CSC still getting a free pass? To add on, in a brief statement about the bill's implications, the Canadian Department of Justice claims that procedural fairness, human and fundamental rights will be upheld since they will be providing "regular reviews of their confinement in a structured intervention unit (SIU)" (10). Though the bill identifies that this review will be done by an independent third-party decision-maker, it fails to mention the company or organization that will be administering this review, making situations a tad bit challenging since the bill also has provisions set in place to "bolster" the CSC's discretionary and arbitrary decision-making powers" (11).
Like I mentioned at the start of the piece, this will not have any of my opinions, and thus will be unlike anything I have written before. It is purely factual, looking at the arguments presented by various Senators, political officials, and scholars. I have laid out both sides of the argument: one stating that the passing of bill C-83 gives the CSC too much control, discretion and arbitrary decision-making powers (12) when there is clearly a lack of accountability, scrutiny and judicial overview, while on the other hand, the bill improves the CSC's ability to integrate people back into society. Look, solitary confinement is unconstitutional, and I am glad the bill abolishes that, but at the same time, the bill is not stringent enough with the CSC, allowing them to get a free pass on the mistreatment of prisoners. The bill instead of giving them more power, should endeavor to hold them accountable and provide a better judicial oversight, thereby allowing for procedural fairness and fundamental human rights to be prioritized. Well, now that you have heard both sides, what do you folks think about Bill C-83?
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