Hon. Serge Joyal:
Honourable senators, I want to add my voice to the debate today because I think this bill raises a very important issue. It tests our concept of humanity.
Have you ever visited a protective society against animal cruelty? You enter the shop and you see all those cages and the animals there, the cats, dogs and the other pets — animals that people like to have in their homes. You look at them and try to decide which one you are going to pick up, but they are caged. They are behind bars, and, behind bars, they are at the mercy of those who take care of them.
When we decide as a society through our court system to order a human being to go into prison, we order them to be caged. Once they are caged, everything they might do falls under the control of those who have the keys. The conditions under which they will be caged are essentially how we test our humanity as a society.
When you put a mentally ill person in a cage, or somebody who has symptoms of mental illness that are not detected, most of the time you trigger the manifestation of those deficiencies. When you put Aboriginal people in a cage because you think that they are always in a society that can’t value what they have been and what they should be, you also cage people. Why do you cage them? It is because they are defenceless. When you are mentally ill, you are not a human being who is the master of all your capacity. When you are an Indigenous person in our society, you also have a chance of being caged because you don’t defend or affirm yourself enough because you have been deprived of your identity, your freedom of being who you were, because for 150 years our policy has been to impose on them a way of being that they were not born to have.
This bill raises important constitutional issues. I’ll tell you why. When this bill was drafted some years ago, the government could have benefited from the enlightenment of the court in the decision of British Columbia and the Ontario Court of Appeal. We are faced with this dilemma. The bill was drafted when the Charter had not been interpreted to determine the level of humanity that we have to protect when we put people in the cage. Why do we have a Charter? We don’t have a Charter just to move around. We have a Charter to protect those who fall under a condition whereby their freedom is determined by others. There are three sections in the Charter that are at stake in this bill.
I will read section 7 to you, and as I do, think of this concept of caging somebody. Section 7 reads as follows:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
“Except according to the principles of fundamental justice,” and what are the principles of fundamental justice that are at stake when you put somebody in solitary confinement? The Ontario Court of Appeal has determined the three criteria to test. That’s what I want the Social Affairs Committee to test with this bill.
The first test is the function of duration. How long can you put somebody in the cage? Is it five days? Is it 30 days? Is it 60 days? The court has determined that segregation should not exceed 15 consecutive days. What does Bill C-83 say in the terms of number of days? This is the first important element. Why? It is because the court stated it:
The effect of prolonged administrative segregation is thus grossly disproportionate treatment because it exposes inmates to a risk of serious and potentially permanent psychological harm.
The duration is the first important factor.
The second, as the court says, is the indeterminacy and inadequacy of the monitoring mechanism. In other words, when you put somebody in the cage, you have to monitor the person. That means that somebody has to go there meaningfully, and Justice Arbour has stated how that has to be judicialized. It is not somebody opening the small window and trying to see if the person is there and not dead. That is not a monitoring mechanism. The monitoring mechanism has to be made in respect to the principle of fundamental justice that I just read in section 7 of the Charter.
The third element, and it is fundamentally essential, is section 15 of the Charter, which deals with Indigenous people and mentally ill people. When you are deprived of your liberty, you are at the mercy of somebody else, and when that person exercises control over you, he or she cannot make a distinction and has to take into account if you are in a weaker position to state your rights as mentally ill and Indigenous people are in prisons.
Honourable senators, I hope that the Standing Senate Committee on Legal and Constitutional Affairs will read the decision of B.C. and Ontario with the criteria that the court has identified, the sections of the Charter that are at stake in this bill, and report to us at the report stage if those criteria are satisfied in the bill as drafted before we have the benefit of the court interpretation of the Charter sections in relation to solitary confinement.
Honourable senators, this is our job. That’s why we are here. We are here to test the legislation according to the best and most recent legal expertise and judicial pronouncements in relation to the protection of the freedom of the weakest in our society. That’s why I’m telling you that this is the test of our concept of humanity. It is at stake when we have full control over a human being who we put in prison and lock the door.
Honourable senators, think about it twice — sober second thought in relation to this bill — because we have control of the level of freedom of the weakest of our society in this bill that was well-intentioned when it was drafted. I submit to you respectfully and personally that the judicial interpretation has evolved since the time this bill was drafted. We need to adapt it to the level of understanding of what humanity is as protected in the Canadian Charter of Rights and Freedoms. Thank you, honourable senators.