In 2023 the CPLA filed access to information requests to obtain the strip search policies of all the provincial and territorial correctional systems. We have decided to post the policies so they can be used in advocacy and research:

• Alberta: Body Orifice Security Scanner Chair; Strip search
• Manitoba
• New Brunswick
• Newfoundland
• Nova Scotia
• Nunavut
• Northwest Territories: Policy 1; Policy 2
• Ontario
• PEI: Adult; Youth
• Saskatchewan
• Yukon: Policy 1; Policy 2

On December 14, 2023, CPLA vice president Jennifer Metcalfe, Executive Director of Prisoners' Legal Services, spoke to the Standing Senate Committee on Legal and Constitutional Affairs regarding Bill S-230. Read Jennifer's remarks below. 

The CPLA supports this bill. 

Bill S-230, section 2

We agree it is important that people in all forms of solitary confinement, including in dry cells, lockdowns and suicide observation cells, have procedural protections.

We are also concerned that people experience solitary-like conditions through institutional movement routines in many maximum-security prisons, that can be more restrictive than SIU. So, the comparison to the mainstream population may not be helpful.

We recommend expanding protection against isolation by adopting the language of the US “End Solitary Confinement Act”, which would require 14 hours per day out of cell in shared spaces, including at least 7 hours of programs and education. Under this bill, cell confinement for de-escalation or lockdowns is limited to 4 hours per day, and 12 hours per week.

Bill S-230, sections 3 and 4

We support health care assessments by independent clinicians and transferring people with disabling mental health issues to a hospital, or mental health facility, if they wish.

We are especially concerned that people with mental health disabilities are being held in isolation, and CSC-employed health care staff are not advocating for their patients to be removed from isolation when their mental health deteriorates.

Research by Drs. Anthony Doob and Jane Sprott found that CSC health providers recommended removal from SIU in only 0.15% of cases [3 out of 1,983 SIU stays they looked at], despite their estimation that 28% of SIU stays constituted solitary confinement and that 10% of stays constituted torture under the UN definition [of stays of more than 15 days duration].

In our view, “disabling mental health issues” should go beyond a DSM-5 diagnosis and should include the symptoms of solitary, including self harm and suicidal ideation, and trauma that result from uses of force. We have clients who are engaging in regular self-harm and suicide attempts who are turned away from CSC Regional Treatment Centres.

Everyone with a disabling mental health disability would not be suitable for detention in a hospital. We recommend amending s 29.02 to include community-based mental health services, to allow people to be placed in health care environments that are most appropriate for them. 

We recommend removing the word “including” from s 29.02, so it would read:

… the Commissioner must authorize that person’s transfer to a hospital, including or any mental health facility…

Bill S-230, section 5

The CPLA supports judicial oversight of placement in SIU of more than 48 hours. CSC and IEDM reviews do not allow people to meaningfully exercise the right to counsel. CSC, and now IEDMs, refuse to share documents with counsel for reviews. Judicial oversight would address this problem, among others.  

Any review of SIU placements must have the authority to order alternatives besides being returned to the mainstream population of a maximum-security prison, which has comparable levels of isolation to SIU.

Bill S-230, section 8

The CPLA supports expanding opportunities for disadvantaged groups to serve sentences in the community. We suggest adding poverty to the definition, and recommend legislation require at least equal funding for community-based alternatives to prison. This could be done through a significant shift of funding from CSC to community-based services.

Unfairness in the Administration of a sentence

The CPLA also supports judicial oversight of unjust administration of the sentence.

Joey Toutsaint’s situation provides a good example of the need for this amendment. He spent 2,180 days in segregation and continues to be isolated since the regime changed. He is unlikely to be able to get out of maximum security because he experiences the normal responses to isolation and trauma, which include anxiety, angry outbursts, depression, paranoia, self-harm and suicidal thoughts.

Joey Toutsaint is in the same position as many other Indigenous people who are twice as likely to be classified to maximum security, (Indigenous women are 4x more likely to be maxed) and less likely to be released on parole.

Joey Toutsaint’s continued imprisonment is not fulfilling the purpose of CSC; it is not “safe” or “humane” and he is not being assisted in his “rehabilitation” or “reintegration into the community”.

The ability to apply for a reduction of sentence to court for the reasons set out in the Bill, would significantly improve the basic rights of people in prison.

The Canadian Prison Law Association has awarded senior prison law lawyer Jacinthe Lanctot a life membership in the Association.

As described by Stephen Fineberg, another life member of the association, Jacinthe is known and respected for her honesty, dedication, hard-work, compassion, knowledge of her field and her experience. She is strong-willed, and impervious to intimidation. Her concern for her clientele is completely sincere. She tends to make their problem her problem; Fineberg remembers for example the case of a client with unusual medical needs the penitentiary was ill-equipped to deal with. Jacinthe would not rest until she had invented a solution and imposed it on the prison.

Jacinthe has not shied away from cases which are difficult or likely to impose heavily on her time. She has taken on demanding situations which foreseeably would prove a lengthy responsibility, including litigation in Superior and Federal Courts.

Any account of her career would be incomplete without special mention of her s.745 Criminal Code judicial reviews before jury (the faint-hope clause procedure). Long considered Quebec’s ‘go-to person’ for these types of reviews, she has performed more of them than any other lawyer in that province, and has travelled across Canada to support clients in these cases.

Private practice aside, Jacinthe was a founding member of Quebec’s prison lawyer association on May 1, 1992. At that founding meeting of the AAADCQ, she was elected Vice-President, and served selflessly in that position until April 30, 2013. These were the years carceral law was established as a viable standalone field of practice in Quebec. Although there had been tentative attempts previously to organize prison work in the province, there was no real meeting place and coherent voice for prison advocacy there until the AAADCQ entered the scene, and so it fell to the association to organize prison practice in Quebec. Jacinthe was fully involved in all the functions the organization took on, and, in particular, in the assistance its executive provided each time the Quebec Bar was called upon to negotiate with the provincial government for the establishment and updating of that province’s system of legal aid tariffs.

Jacinthe has been, and remains, a pioneer of prison law in Quebec, and in Canada, and is looked upon by the younger generation with admiration and appreciation.

Read the full English press release here.

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The Canadian Prison Law Association a désigné Me Jacinthe Lanctôt, avocate chevronnée en droit carcéral, membre à vie de l’Association.

Comme décrit par Me Stephen Fineberg, lui aussi membre à vie de l’Association, Jacinthe est reconnue et respectée tant pour son honnêteté, son dévouement, son travail infatigable, sa compassion, ses connaissances en ce domaine du droit que pour son expérience.

Sa force de caractère la rend imperméable à l’intimidation. Son engagement envers ses clients étant ce qu’il y a de plus sincère, fait en sorte que les problèmes de ces derniers deviennent les siens propres. Pour exemple, Me Fineberg nous relate le cas d’un client nécessitant une attention médicale particulière à laquelle le pénitencier ne pouvait répondre. Jacinthe n’eut de repos que lorsqu’elle eut conçu une solution et l’ait fait imposer à l’établissement.

Jacinthe n’a jamais fui les dossiers difficiles ou susceptibles d’exiger d’elle de longues heures de travail. Elle a affronté avec aplomb des situations exigeantes dont le dénouement s’avérerait parfois long et exigerait un très haut degré de responsabilité professionnelle, incluant des litiges devant la Cour supérieure et la Cour fédérale. Tour compte-rendu de la carrière de Jacinthe ne saurait être complet sans mention de ses révisions judiciaires devant jury (Code criminel, c. 745) (baptisées par les médias ‘‘the faint-hope clause’’). En effet, longtemps considérée au Québec comme LA personne-ressource dans de telles causes, elle en a mené plus que n’importe quel avocat de cette province et a voyagé à travers le Canada afin de soutenir ses clients en pareilles situations. Mise à part sa pratique privée, Jacinthe fut, le 1er mai 1992, une membre fondatrice de l’Association des avocats et avocates en droit carcéral du Québec. Lors de cette rencontre créant l’AAADCQ, elle fut dès lors élue Vice-présidente, poste auquel elle s’est consacrée jusqu’au 30 avril 2013. C’est durant ces années que s’est échafaudé le droit carcéral en tant que véritable domaine distinct du droit québécois.

Bien qu’il y eût de précédentes tentatives d’établir des services en ce domaine du droit, ce n’est qu’après la naissance de l’AAADCQ qu’une voix cohérente en pratique de droit carcéral au Québec fut instaurée. Jacinthe s’est investie pleinement dans toutes les charges et projets de cette Association, en particulier l’assistance directe sans faille que l’exécutif porta au comité de négociation du Barreau du Québec auprès du gouvernement provincial pour établir, puis réviser périodiquement le système de tarification de l’Aide juridique.

Jacinthe a été, et demeure une pionnière dans le domaine du droit carcéral au Québec et au Canada, et, chez les membres de la nouvelle génération, on lui voue gratitude et admiration.

Lisez le communiqué de presse

In June 2023 the CPLA provided submissions to the federal government urging strong regulatory limits on dry cells and strip searches.

Dry celling, an extreme form of solitary confinement, is a cruel and degrading practice. As has been noted by the Correctional Investigator, “[t]he conditions of dry cell confinement are, by far, the most degrading, austere and restrictive imaginable in federal corrections.” Strip searches are also inherently humiliating and degrading, and are particularly traumatic for individuals who have been sexually abused.

The submissions, which were also signed by the Canadian Civil Liberties Association, urged the government to pass regulations limiting the use of dry cells, and mandating that body scanning technology be used in lieu of dry cells and strip searches whenever possible. Ultimately, both organizations support the abolition of dry cells.

You can read the full submissions here.

In April 2023, the CPLA provided submissions to the Standing Senate Committee on Legal and Constitutional Affairs expressing its support for Bill S-230. This bill was sponsored by Senator Kim Pate, former Executive Director of the Canadian Association of Elizabeth Fry Societies and a renowned prisoners’ rights advocate. This bill responds to several pressing problems in the federal correctional system, including overreliance on segregation, lack of support for prisoners with mental health conditions, overincarceration of people from marginalized populations, and lack of meaningful judicial remedies for prisoners.

Read the CPLA’s letter to Senate Standing Committee regarding Bill S230.

CPLA was granted leave to present arguments before the Ontario Court of Appeal in Dorsey v Canada, a case concerning the scope of the writ of habeas corpus. As was pointed out in the CPLA’s factum, the writ of habeas corpus is one of the only tools federal prisoners can use to protect and uphold their statutory and constitutionally protected liberty interests. Transfer and placement decisions within federal prisons have an enormous impact on the day-to-day lives and release prospects of all federal prisoners. When their protected interests become vulnerable to disregard by penal authorities, their liberty is jeopardized.

You can read the full legal submissions here.

This is not the first time the CPLA has provided appellate submissions on habeas corpus. In 2018, for example, the CPLA intervened in Chhina v Canada, a Supreme Court case addressing the application of habeas corpus to immigration detainees. You can read CPLA’s factum from that case here.

In response to incidents involving individuals accused of committing violent offences while on bail, there were calls to reform the bail system. In February 2023, the CPLA appeared before Ontario’s Standing Committee on Justice Policy, which was conducting a study of the bail system. Then in March 2023, the CPLA provided submissions to the Parliamentary Standing Committee on Justice and Human Rights. The CPLA’s submissions highlighted how restrictive the bail system already is and emphasized the need to protect public safety by providing resources to help stabilize those on bail, rather than limiting the availability of bail.

Read the submissions to the federal Parliamentary Standing Committee on Justice and Human Rights here.

On January 14, 2023, the CPLA made submissions to the Standing Committee on Justice Policy Regarding Bill 138 (“An Act to amend the Change of Name Act and to make consequential amendments to another Act”). 

The CPLA opposes Bill 138. The Government of Ontario has an interest in protecting public safety, but it also has an obligation to do so in a manner that respects Charter rights. As the Supreme Court of Canada reiterated in a case striking down mandatory registration provisions of the Sex Offender Information Registration Act: “[e]ven when Parliament acts with a laudable purpose, it must still legislate in a constitutional manner and comply with the Charter.”

The CPLA is concerned that the framework set out in Bill 138 is inconsistent with section 7 of the Charter, since prohibiting someone from changing their name is a violation of the right to liberty. Moreover, this restriction cannot be saved under the proportionality aspect of the Oakes test.

Read the full document here. 

On December 8, 2021 our own Fergus (Chip) O’Connor was honoured with the Ed McIsaac Human Rights in Corrections Award. The award was established in honour of Mr. Ed McIsaac, who served as Executive Director of the Office of the Correctional Investigator for 18 years, and recognizes the work and dedication of those who have demonstrated a lifelong commitment to improving Canadian corrections and protecting the human rights of the incarcerated.

The announcement was made by Dr. Ivan Zinger, the Correctional Investigator of Canada, who said: “Chip is a legend in Canadian correctional law circles. He has been involved in some of the leading prison law cases in this country. Today, Chip is being recognized for his impassioned and long-standing advocacy as a champion for access to justice and defender of prisoner rights.”

Chip has practiced law in Kingston, Ontario since 1975. He was a founding member of the Canadian Prison Law Association and served as Director of the Correctional Law Project, now the Queen’s University Prison Law Clinic. He has appeared before the Supreme Court of Canada a dozen times, arguing cases respecting the right to vote; search and seizure; habeas corpus and detention within the penitentiary; the right to apply to the Supreme Court; and extension of the application of Gladue principles for Indigenous offenders. In 1996 Chip also appeared before the Prison for Women Commission of Inquiry conducted by Madame Justice Louise Arbour.

Congratulations again, Chip, and thanks for blazing the trail for the rest of us!

In 2022 the CPLA appeared before the Supreme Court of Canada to intervene in R v Bissonnette, a case that addressed the constitutionality of section 745.41 of the Criminal Code, which permitted people to be sentenced to life in prison with no chance of parole for 50 years, 75 years, or longer. CPLA argued that the section constituted cruel and unusual punishment and was fundamentally irreconcilable with the purposes of the correctional and parole system – rehabilitation and reintegration.

You can read CPLA’s full written submissions here.