Thank you, Mr. Speaker. I seek unanimous consent to waive Rule 101(4) and to have Committee Report 33-18(3) moved into Committee of the Whole for consideration later today. Thank you, Mr. Speaker.
Masi. The Member is seeking unanimous consent to waive Rule 100(4) and have the Committee Report 33-18(3) moved into Committee of the Whole for later consideration today. Are there any nays? There are no nays.
---Unanimous consent granted
The Committee Report 33-18(3) is now moved to Committee of the Whole for further consideration later today. Reports of standing and special committees. Member for Nahendeh.
Committee Report 34-18(3):
Standing Committee On Social Development Report On The Review Of Bill 45: Corrections Act
Thank you, Mr. Speaker. The other side of this.
Bill 45: Corrections Act, sponsored by the Department of Justice, received second reading in the Legislative Assembly on March 11, 2019, and was referred to the Standing Committee on Social Development (committee) for review, the results of which are reported below.
Bill 45 is intended to repeal and replace the existing Corrections Act. The bill intends to focus less on punishment and more on the rehabilitation and reintegration of offenders into their communities, and to reflect various operational improvements in the Northwest Territories' (NWT) corrections system.
To assist in our review of Bill 45, committee invited input from an extensive list of stakeholders, including community governments, and Indigenous organizations, as well as individuals and non-governmental organizations specializing in civil liberties, criminal law, or corrections.
Between May 13 and May 17, 2019, committee traveled to the communities of Fort Smith, Hay River, Fort Providence, Behchoko, Inuvik, and Tuktoyaktuk to hold public hearings on Bill 45, followed by a public hearing in Yellowknife on May 23, 2019. In addition to these meetings, committee received five written submissions on Bill 45, copies of which are attached in Appendix B.
Upon first review, committee was concerned Bill 45 did not adequately reflect the unique cultural background, historic legacy, and experience of offenders in the NWT and the reforms expected in the current era of Truth and Reconciliation and after 40 years of evolving approaches in the field of corrections.
The bill did not appear as thorough as recent comprehensive reforms elsewhere in Canada, including in Newfoundland and Labrador, Ontario, and most recently Nunavut. These acts, while not yet in force, went much further than Bill 45 in aspiring to provide for the rehabilitation and reintegration of inmates so that they may go on to lead productive lives, inmates and victims may heal, and residents and communities may be safer.
Committee also heard that aspects of Bill 45, specifically its provisions relating to the confinement of inmates, were not reflective of recent case law. Principles of procedural fairness were also absent from the bill, including a mechanism for inmate complaints. Other submissions advised that international standards relating to incarceration should be incorporated into Bill 45.
Committee was concerned about not only the content of Bill 45, as outlined below, but also how the bill was developed. The department of Justice received limited input into Bill 45, resulting in a bill that was framed from the perspective of the persons operating and administering the corrections system rather than that of persons who are directly impacted by the system, including inmates, victims, and Indigenous peoples. A lack of engagement by members of the public and Indigenous and other organizations does not equal a lack of concern, committee believes, and this was reflected in the submissions committee received.
In addition, with substantive details missing from Bill 45, the structure of the bill was a concern for committee, as well as experts. While the department planned to address these details in regulations and policies, matters such as separate confinement, the use of force and discipline, or corrective measures are not merely operational or practical details. Instead, they relate to essential rights and responsibilities that should be subject to the full legislative process, including public debate, consultation, and accountability for elected officials.
On bringing our concerns to the Minister of Justice, departmental and committee officials commenced a collaborative effort to develop several substantive amendments, including reducing the bill's reliance on regulations, policies, and procedures and capturing substantive rights and responsibilities in the bill. We can say with confidence that our combined efforts have resulted in a vastly improved bill, one that looks much less like a framework for operations and much more like a modern framework for legal obligations and protections reflective of the NWT.
At this time, Mr. Speaker, I'd like to turn the report over to the honourable Member for Deh Cho.
Masi. Member for Deh Cho.
Mahsi, Mr. Speaker.
On reviewing Bill 45, it was not clear to committee what the bill was trying to achieve. In collaboration with the Minister, committee developed Motion 3 in Appendix A to articulate clear aspirations for the NWT correctional system and to establish principles for guiding the Correctional Service.
Sections 4 and 5 of Bill 45 authorized the Director of Corrections to establish community advisory boards and appoint members (CAB). Among other things, CABs are meant to provide observations and advice on the day-to-day operations of correctional centres and liaise between facilities and the public to facilitate responsiveness to inmates' needs.
It appeared to committee that appointments to CABs by the Director of Corrections, a member of the public service, may have the unintentional effect of compromising their independence. For that reason, committee felt it would be more appropriate for the Minister to establish CABs and appoint their members, as reflected in Motions 5 and 6 in Appendix A. Committee suggests that membership of CABs be determined using an existing model, such as that used for Regional Wellness Councils.
Section 10 authorizes the Director of Corrections to adopt a code of professional conduct for all staff members. Committee and the Minister agreed that the adoption of a code of professional conduct should be an obligation rather than a discretionary power, as reflected in Motion 7 in Appendix A. We also agreed that the guiding principles created under Motion 3 should highlight the importance of staff training and the importance of a positive work environment.
Committee heard concerns from the public about the suitability of personnel working in the corrections system. Non-Indigenous persons working in front-line service positions may lack an understanding of the experience of Indigenous people, including the legacy of the residential school system, and a resident made the point that inmates should be working with people they can trust.
Committee believes that the personnel working in our corrections institutions should have the background and skills necessary to be able to address the challenges and needs underlying the unique circumstances of their inmates. We encourage the department to offer the relevant training anticipated under Bill 45 to its corrections staff on an ongoing basis. We also urge the department to increase its efforts towards filling corrections positions with candidates who reflect the demographics of the inmates they oversee.
Section 17 of Bill 45 allowed the Director of Corrections to appoint volunteers to provide or assist in the provision of correctional services for offenders, inadvertently excluding other inmates such as those remanded in custody from working with volunteers. Motion 11 in Appendix A remedies this error.
Section 16 sets out the duties and responsibilities of probation officers, mostly in relation to their role with respect to the courts and in correctional centres. The Canadian Bar Association Northwest Territories Branch - Criminal Justice Section (CBA-NT) recommended Bill 45 detail the specific responsibilities of probation officers vis-a-vis their clients. Motion 10 in Appendix A elaborates on the role of probation officers in assisting offenders post-release.
The public expressed their support for programming and services that reflect local culture, languages, and experiences to support the reintegration of inmates into their families and communities. Residents told committee that inmates should be able to interact with people they can trust, and on-the-land programs should be a priority.
Committee felt Bill 45 should go further to account for these concerns. Among other improvements, Motion 14 clarifies that programs and services may be offered in a facility, a community, or on the land. This motion, developed in collaboration with the Minister, also provides for the services of an Indigenous elder or spiritual advisor to support the healing, rehabilitation, and reintegration of inmates. In addition, Motion 19 amends section 30 of the bill to allow for the eventual possibility that communications between an inmate and Indigenous elder or spiritual advisor under Motion 14 could be made privileged.
Mr. Speaker, I now pass on the reading of the following section to my honourable colleague from Yellowknife Centre.
Masi. Member for Yellowknife Centre.
Mahsi, Mr. Speaker.
The Standing Committee on Social Development recommends that the department of Justice explore the possibility of allowing for private interviews between an inmate and a facility's Indigenous elder or spiritual advisor, subject to reasonable restrictions.
Residents told committee that programming should be available to all inmates, including those remanded in custody, who make up more than half the inmate population in the NWT. Remanded persons, including those who are eventually convicted, are frequently released without having accessed rehabilitative programs. Even of those who are sentenced, the Auditor General of Canada found that, for inmates with sentences of less than 120 days, only 36 percent had access to general rehabilitation programs, and none had access to offence-specific programs. For those with sentences longer than 120 days, 87 percent had access to general rehabilitation programs, but only 63 percent had access to offence-specific programs.
In an effort to promote the uptake of programming by remanded persons, committee worked with the Minister to develop Motion 14 in Appendix A. This motion amends the programs and services provisions in section 21 of the bill to make a distinction between general programs aimed at all inmates and rehabilitation programs targeted at convicted offenders. Motion 14 specifies that all inmates are entitled to participate in these various programs and services.
Committee would like to see the correctional needs and appropriate programs to meet those needs as set out in section 29 of the bill identified for every inmate rather than only for offenders, to ensure their time in custody is as constructive as possible. Further, needs-based assessments should be delivered in a timely manner. While we recognize that it may be a challenge to engage remanded individuals in programming, as they are presumed innocent and cannot be compelled to participate, committee recommends that the department provide adequate incentives to promote the development and betterment of all inmates.
The Standing Committee on Social Development recommends that the Department of Justice conduct needs-based assessments for all inmates, that the assessments be conducted in a manner that is timely relative to an inmate's release eligibility, that the assessments take into account Gladue and other factors such as an inmate's disabilities, and that the department explore additional measures to encourage all inmates to participate in suitable programming, including offering new incentives.
Section 26 of Bill 45 contained few references to living conditions, and experts advised committee that Bill 45 did not go far enough to ensure that inmates receive living conditions reflective of Canadian human rights standards. Committee and the Minister developed Motion 15 in Appendix A to establish minimum living conditions and standards and to ensure inmates have the rights to peaceful assembly and religious expression, subject to reasonable limits.
Motion 24, discussed below, prohibits the deprivation of food, water, and healthcare as punishment for disciplinary offences.
Committee heard that Bill 45 should include provisions requiring corrections centres to guarantee inmates reasonable access to adequate means of communications with the outside world, as reflected in Motion 15. In addition, committee worked with the Minister on Motion 19 to expand the list of individuals with which an inmate may engage in "privileged communication" under subsection 30(1). The list would include individuals with the Office of the Ombud, the Human Rights Commission, and the Human Rights Adjudication Panel, as well as other prescribed persons.
Residents told committee they want to see corrections centres offering work programs, and for these work programs to operate in communities. Committee recognizes the challenges that work programs pose for the department, including in relation to high risk offenders, but committee sees the value in providing inmates with work skills and reacquainting them with society to assist in their rehabilitation and reintegration.
The Standing Committee on Social Development recommends that the Department of Justice prioritize work programs that are responsive to community needs, subject to necessary safety and security restrictions.
Mr. Speaker, I now turn the report over to the Member for Mackenzie Delta.
Masi. Member for Mackenzie Delta.
Thank you, Mr. Speaker.
Section 50 of Bill 45 authorized the Minister to provide inmates with services for personal phone calls, entertainment, canteen, and other services. Motion 28 clarifies that the Minister is required to provide these services in all correctional facilities, subject to reasonable restrictions on individual inmates.
Bill 45 requires the person in charge to make rules respecting inmate conduct, inmate activities, and other matters. Motion 16 replaces section 27 of Bill 45 with a new section to provide that, on an inmate's admission to a facility and in a form he or she understands, the person in charge must inform the inmate of the institution's rules and the inmate's rights and responsibilities, to assist the inmate with adapting to his or her surroundings.
Knowing an inmate's risks is essential to effective safety, security, rehabilitation, and reintegration. Motions 17 and 18 in Appendix A clarify the distinction between the security classification process and the enhanced supervision program used by the Correctional Service. The security classification process is used for assessing and reassessing inmates and determining the level of security required for an inmate and their appropriate placement within a facility. Inmates may be assigned to an enhanced supervision program, where they may be assigned to a specific level of security, access restrictions, and other conditions of confinement.
Committee received several suggestions to make the risk assessment process as it relates to security classification effective and fair to Indigenous inmates.
The Standing Committee on Social Development recommends that the security assessment tools used by the Correctional Service be objective, structured, and empirically defensible, and that a risk assessment tool that considers the unique realities of Indigenous inmates be developed and used.
The Information and Privacy Commissioner outlined several privacy-related concerns with Bill 45 for committee. A specific area of concern we shared with the Information and Privacy Commissioner was the lack of detail in Bill 45's search provisions. We agreed with the Information and Privacy Commissioner that sections 33 through 35 of the bill did not do enough to protect the privacy and dignity of those subject to search. For this reason, committee worked with the Minister to develop Motions 21, 22 and 23, set out in Appendix A, to specify that strip searches of inmates, staff, and visitors must be conducted by staff of the same gender and in a place and manner that respects the person's dignity.
Section 19 of Bill 45 included broad parameters for the use of force on inmates, authorizing certain persons to use a "reasonable degree and means of force on any inmate" to prevent injury or death, prevent property damage, prevent an inmate from escaping, and maintain inmate custody and control. Committee agreed with a submission that more detail around the use of force was needed. Motion 17, developed in collaboration with the Minister and set out in Appendix A, serves to replace section 19 in Bill 45. This motion clarifies that de-escalation techniques must be employed where possible and force may be used only as a last resort. The means and the amount of force must be reasonable and not excessive, and they must have regard to the nature of the threat posed and other circumstances of the particular case.
Also contained in Motion 17 are clear restrictions on the use of physical restraints. Section 19 left decisions, such as the devices that may be used to physically restrain an inmate and the manner and circumstances in which they may be used, to the discretion of a sole individual. Due to the highly intrusive nature of these devices and the risk they pose for causing injury, pain, and humiliation to inmates, committee believes the circumstances in which physical restraints may be used, such as the length of time and procedures for their use, should be prescribed in regulations and subject to independent scrutiny. As an additional safeguard, Motion 24 specifically prohibits the use of restraint devices as punishment for disciplinary offences.
In those instances where force is used, Motion 17 requires corrections employees to report the pertinent details of the incident to senior staff.
Mr. Speaker, I will now pass this on to the Member for Yellowknife Centre. Thank you.
Masi. Member for Yellowknife Centre.
Mahsi, Mr. Speaker.
While committee was pleased to see the introduction in Bill 45 of concepts such as community advisory boards, an Investigations and Standards Office, and adjudicators, experts in the fields of corrections and civil liberties shared our concerns that the oversight structures established in Bill 45 were not fully impartial or independent. While we recognize the need to ensure a measure of corrections expertise in the bill's oversight processes, we believe the degree of impartiality and independence necessary for serious and high risk matters such as separate confinement or disciplinary segregation must be higher than that initially established in Bill 45. To that end, Motion 26 in Appendix A enhances the independence of adjudicators by having the Minister rather than the Director of Corrections appoint adjudicators and prohibiting the appointment of corrections staff as adjudicators.
Committee had concerns about the independence held by the Director of Investigations and Standards, as a member of the public service pursuant to section 2 of the bill with the power to review the decisions of adjudicators under section 38. Elsewhere, public officers in a similar role appear to have more independence than anticipated for the Director of Investigations and Standards under Bill 45.
Committee encourages the department to continually underscore the independence of the Director of Investigations and Standards and the adjudicators.
Several submissions advised committee that they believed the separate confinement provisions set out in sections 32 and 40 of Bill 45 were vague and not consistent with recent case law. The separate confinement provisions appeared to permit prolonged, indefinite confinement and failed to distinguish between the confinement practices envisioned under Bill 45 and the practice of solitary confinement.
A matter as serious and high-risk as confinement requires substantive treatment in legislation, including hard caps on duration, provisions for independent adjudication, and guaranteed access to programs and services, with more specific, operational details going into regulations.
Motion 2 in Appendix A creates a category of confinement referred to as "separate confinement," referring to the holding of an inmate apart from other inmates for the purposes of safety and security rather than for disciplinary or corrective purposes. Motion 20 further clarifies the meaning of separate confinement, specifying that inmates in separate confinement get to maintain their living conditions and standards as well as access to programs and services, adapted to the circumstances of separate confinement. Motion 20 also clarifies the decision-making process in relation to separate confinement and the role of the adjudicator in the case of separate confinements exceeding 96 hours. Motion 27 sets out a process for those adjudicative reviews including inmates' procedural rights.
The CBA-NT advised committee that they believed the process set out in section 38 of Bill 45 with respect to the imposition of discipline or corrective measures against an inmate violated the inmate's rights to procedural fairness. Improvements to section 38 by way of Motion 24, developed in collaboration with the Minister and set out in Appendix A, include:
making a distinction between disciplinary segregation and separate confinement;
setting parameters around the use of discipline and corrective measures, including providing for the use of informal resolutions and setting hard caps on consecutive and aggregate days in disciplinary segregation;
changing the powers of the Director of Investigations and Standards with respect to an appeal of an adjudicator's decision to impose a disciplinary or corrective measure so that he or she may confirm, quash or reduce but not increase that disciplinary or corrective measure; and
establishing additional obligations and rights with respect to disciplinary hearings.
The CBA-NT pointed out that Bill 45 failed to establish a clear grievance procedure or guidance on how complaints will be handled. Committee collaborated with the Minister to develop Motion 30, set out in Appendix A, to enshrine a fair and expeditious grievance mechanism to adjudicate grievances raised by inmates, offenders or persons on probation, conditional sentence or judicial interim release.
Section 11 of Bill 45 required the Director of Corrections to establish, administer and maintain a victim notification program consistent with the principles of the Canadian Victims Bill of Rights.
In reviewing Bill 45, committee determined Bill 45's provisions related to the notification of victims could be strengthened to protect victims of crime. For this reason, committee collaborated with the Minister to develop Motion 8, set out in Appendix A, to provide clear obligations on the part of the corrections system and clear entitlements on the part of victims or their designates to have access to certain information about their perpetrators, such as the date of their release from custody, where the disclosure would benefit the victim and their interest in disclosure outweighs any invasion of privacy that could result from the disclosure.
While the notification of the public in similar circumstances will continue to be under the purview of the Royal Canadian Mounted Police, committee shares the concern we have heard about the risks faced by victims whose perpetrators have not been convicted.
The Standing Committee on Social Development recommends that the department of Justice invest adequate resources into Victim Services to ensure public awareness of these programs and that Victim Services staff are in a position to inform victims of details pertinent to their well-being and safety, including cases where a person remanded in custody is released by the courts.
Motion 8 also authorizes the Minister to establish programs that employ restorative justice principles, such as victim-offender mediation, to help address root causes of violence, reduce recidivism, and support healing.
Mr. Speaker, I'd like to turn the reading of the report over to the Member of Nahendeh. Mahsi.
Member for Nahendeh.
Thank you, Mr. Speaker.
Various experts submitted that the bill did not adequately provide and protect offenders with specific mental health needs or disabilities. Committee agreed that the bill should go further to address some of the challenges faced by inmates. Motions 9, 14, 16, 20 and 24 in Appendix A, developed in collaboration with the Minister, each contain provisions that provide for additional services or the reasonable accommodation of inmates with specific needs, such as those with illnesses, injuries, disabilities or for whom the English language or literacy is a challenge.
Bill 45 contained little in the way of acknowledgment of the unique circumstances of female inmates, including that women are more susceptible to abuse and sexual misconduct by corrections staff and other inmates, have reproductive healthcare needs, and may have children for whom they are the primary caregiver. Committee felt new corrections legislation should reflect international standards in this area, namely the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) adopted by the UN General Assembly in 2010, as well as the recent Calls for Justice arising from the Missing and Murdered Indigenous Women and Girls Inquiry. In collaboration with the Minister, we developed Motions 15, 17, 21, 22 and 23 in Appendix A to provide additional standards addressing the specific characteristics, needs and susceptibility of female inmates in relation to physical restraints, healthcare, strip searches, and where they may be housed.
Pursuant to Motion 31, committee is pleased with the addition of an annual report provision developed in collaboration with the Minister and set out in Appendix A. The motion requires the Minister to table a report each year outlining important details relating to the administration of the Act, such as the number of inmates held in disciplinary segregation and the number of inmate complaints.
The clause-by-clause review of Bill 45 was held on August 15, 2019. At this review, committee moved a total of 32 motions, attached in Appendix A. Committee thanks the Minister for his concurrence with the motions to amend Bill 45 that were moved during the clause-by-clause review.
Following the clause-by-clause review, a motion was carried to report Bill 45, as amended and reprinted, as ready for consideration in Committee of the Whole.
Committee wishes to thank every individual and organization who participated in the review process for Bill 45. Committee also again wishes to acknowledge the collaborative efforts of the department and committee officials in the development of Bill 45.
Rule 100(5) of the Rules of the Legislative Assembly of the Northwest Territories requires Cabinet, in response to a motion by committee, to table a comprehensive response that addresses the committee report and any related motions adopted by the House. As required by this rule, committee usually includes a recommendation in each report, which is moved as a motion in the House, requesting a response from government within 120 days. Given that the 18th Legislative Assembly will dissolve prior to the conclusion of the 120-day time period allowed by the rules, committee has opted to forego this recommendation. Committee nonetheless requests, to the extent it is possible before the dissolution of the 18th Assembly and for the public record, that government provide a response to the recommendations contained in this report, even of a preliminary nature, that Committee may publicly disclose.
This concludes committee's report on Bill 45: Corrections Act. Committee reports are available on the Legislative Assembly website at www.assembly.gov.nt.ca. Thank you, Mr. Speaker.
Masi. Reports of standing and special committees. Member for Nahendeh.
Mr. Speaker, I move, seconded by the honourable Member from Yellowknife Centre, that Committee Report 34-18(3): Standing Committee on Social Development Report on the Review of Bill 45: Corrections Act be received by the Assembly and moved into Committee of the Whole for further consideration. Thank you, Mr. Speaker.
Masi. The motion is in order. The motion is non-debatable. All those in favour? All those opposed? The motion is carried.
---Carried
Committee Report 34-18(3): Standing Committee on Social Development Report on the Review of Bill 45: Corrections Act is now moved into Committee of the Whole for consideration. Masi.
Reports of standing and special committees. Member for Nahendeh.
Thank you, Mr. Speaker. I seek unanimous consent to waive rule 100(4) and to have Committee Report 34-18(3): Standing Committee on Social Development Report on the Review of Bill 45: Corrections Act moved into Committee of the Whole for consideration later today. Thank you, Mr. Speaker.
Masi. The Member is seeking unanimous consent to waive rule 100(4) to have Committee Report 34-18(3) moved into Committee of the Whole for later consideration today.
---Unanimous consent granted
Standing Committee on Social Development Report on the Review of Bill 45: Corrections Act is now moved into Committee of the Whole for further consideration later today. Reports of standing and special committees. Item 5, returns to oral questions. Member for Yellowknife South.
Mr. Speaker, I am seeking unanimous consent to go back to item 6, recognition of visitors in the gallery, please.
Masi. The Member is seeking unanimous consent to move to item 6 on the orders of the day.
---Unanimous consent granted
