The Canadian Bar Association comments……

……on Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

Currently in third reading, Bill C-83 responds to the B.C. and Ontario legal actions against Ottawa over the use of solitary confinement in federal prisons. But more, it’s intended to bring CSC operating policies in line with progressive recommendations Liberals touted in the 2015 campaign, and then mandated to the relevant ministries after taking office.

But, in “Solitary Confinement” posted on February 3, we noted that as it is now C-83’s purpose “is to mollify all stakeholders by yielding a little to everyone.” In other words, what may appear as meaningful changes are mostly more of the same using different language.

The Canadian Bar Association, “a national association of over 36,000 lawyers, notaries, law students and academics, with a mandate that includes seeking improvement in the law and the administration of justice,” sent a November 19, 2018 five-page letter to the government with its appraisal of the Act.

Whittled down to the barest skeletal basics, those five pages say:-

This Bill should be a big deal. Don’t rush. Talk to prison lawyers and specialist in criminal justice before finalizing the legislation.

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There’s too much discretion for prison staff to deprive prisoners of basic rights, along with a lack of independent oversight.

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“Some entire institutions are now administered similar to a segregation unit.” Cut that out! Bring back the principle of least restrictive measures, legislate protection for prisoners’ rights during lockdowns, and limit the use of lockdowns.

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Different security levels within an institution means more higher security level beds and more restrictive measures on more prisoners. That’s “inconsistent with an evidence-based approach to corrections.” What’s up with that?

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“Structured Intervention Units” in the Bill are a good move, but these sections are “too vague and do no provide the necessary procedural safeguards…” The CBA letter uses more than a page to outline its position on segregating inmates. In a few words, too much discretion in C-83 and little attention to currently recognized standards

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Don’t turn someone inside out looking for contraband. Body scans are preferable, but not body scans and strip searches and dry cells.

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Bill C-83 includes “several positive health care obligations”, and “recognizes the professional and clinical independence of health care professionals”, but the legislative requirements are again vague and don’t include enforceable standards. Health care providers should partner with federal and provincial Ministries of Health, without the influence or interference of prison administrators, and without any CSC staff supervision or oversight. And, add legislation to ensure confidentiality between health care providers and prisoner patients.

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Reduce the number of Indigenous prisoners in custody and at higher security levels using stronger provisions as recommended by the Truth and Reconciliation Commission. “More should be done to support Indigenous communities’ self-determination by ensuring sufficient community and mental health resources to avoid Indigenous people becoming involved in the justice system in the first place.”

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The CBA supports the provision to establish patient advocacy services but these advocates should be independent of the CSC. Also, there’s a need for legal aid services for prisoners across the country. Variations in the levels of legal aid for prisoners show that almost nothing is available in the Prairies and Maritimes for instance, but nowhere in the country is it adequate.

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Bill C-83 makes no mention of “the urgent need to legislate fair pay rates for prisoners.” The scale established in 1981 has not increased and was in fact reduced in 2013 with deductions for additional room and board. Do something!

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Now, putting the Canadian Bar Association aside, and challenging a different perspective, this is the body of a self-explanatory letter sent to Conservative MP Pierre Paul-Hus in Ottawa on February 20:-

Today, while researching the status of Bill C-83, Corrections and Conditional Release Act amendments, I came upon your comments in the House on October 23 of last year.

You referenced Jason Godin, President of the Union of Canadian Correctional Officers, who you quoted as saying there would be a blood bath in the penitentiaries if Bill C-83 were passed.

Citing Jason Godin as an authority on what is best practice in the operation of our federal prison industry is akin to taking Donald Trump’s tweets as gospel.

But then, I doubt there is a Conservative who supports progressive prison reform.

Forget the Canadian Bar Association comments. Wanna bet C-83 will be watered down even further?

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Prison industry health care

SCENE ONE – Correctional Service of Canada National Headquarters, Ottawa

“CSC is the largest federal employer of psychologists in Canada.
As a CSC psychologist, you will have a significant impact in changing offender’s behaviours and helping them to adopt more positive lifestyles, assisting in their safe reintegration into the community.

CSC psychologists are primarily focused on the assessment and treatment of offenders with mental disorders and on the assessment of their risk to reoffend. Psychologists also develop and deliver programs that help offenders to better understand their behaviour and to develop new ways of coping.

Join a team of psychologists who are world renowned for their contribution to correctional research and for developing programs and interventions that work.”

…..from ‘Health Services’ employment opportunities on the Correctional Service of Canada web site.

Yes, CSC psychologists are primarily focused on the assessment of their (offenders) risk to reoffend.

As for the rest of the profile, put it in front of the men and women locked away in our prisons. Listen for the laughter coming from inside, breaching the high walls, Plexiglas, fences, bars and barbed wire.

Inmates have higher incidents of mental/emotional challenges than the community at large, and it may account for the criminality of many offenders. Despite the potential for positive outcomes, and the demand for help, psychiatric and psychological intervention is sparse, limited, and exclusive.

Again, an example of the difference between policy and practice.

God forbid that Correctional Service of Canada should do anything to reduce the size of the prison population.

Free Adam Capay!

If our provincial and federal governments won’t whip the prison industry into line, then the courts will.

“JUDGE ISSUES STAY IN CASE OF ADAM CAPAY, WHO SPENT 1,636 DAYS IN SOLITARY.”

So read the headline on the front page of the Tuesday, January 29 Globe and Mail. The ‘deck’ below went further, “Justice John Fregeau finds multiple Charter rights of 26-year-old were violated as he waited to stand trial for a first-degree murder charge.”

Adam Capay, a Lac Seul First Nation man, was sent to Thunder Bay Correctional Centre at age 19 on minor charges. In this decrepit jail long overdue for replacement, he got into a fight and another man died. He then spent 4 ½ years in solitary confinement awaiting trial for murder, much of that time in a small cell covered with Plexiglas and lit 24 hours a day.

Mr. Capay came to the public’s attention in 2016 when Renu Mandhane, Ontario’s chief human rights commissioner, brought in the media after a guard at the jail notified her of Mr. Capay’s declining mental state in solitary confinement. The superintendent of the Thunder Bay facility, senior civil servants and even government members were or should have been aware of his lengthy segregation, but did nothing to correct what was patently wrong and illegal.

There’s a publication ban on evidence in the case pending a possible appeal of the stay by the province. Scant information not covered by the ban says the stay was granted as recourse for a breach of four Charter sections….multiple violations of Adam Capay’s rights. The harm caused by the state outweighed the seriousness of the alleged crime – first degree murder.

As things stand, we won’t know if Mr. Capay is guilty of killing 35-year-old Sherman Quisses, another indigenous inmate. “The state has not only deprived Adam Capay of his rights but also deprived the Quisses family of an opportunity for justice,” said one of his lawyers.

“If this happened in a country that is notorious for violating human rights, like Saudi Arabia, we would be outraged. Discovering this is occurring in Canada is so shocking it is difficult to process,” wrote Scott Gilmore in MacLean’s in October of 2016. Then too, Canada is today condemning China for the arbitrary detention of two Canadian citizens.

Adam Capay is not the first or only victim of government sanctioned mistreatment. Canada’s provincial and federal prison industries have a long history of rights’ violations. Even today, other Adam’s are under wraps in every part of this country.

As we said….mercenaries!

There have been three additional entries to the policing file after the ‘farewell and good luck’ published last April 1st. This is like the squeaky wheel oil won’t fix.

“Toronto police – mercenaries?” from last April highlighted a years-long concern. Most Toronto police officers do not live in the city. The posting was prompted by an earlier Toronto Star article, writer Betsy Powell’s “Many new cops don’t live in Toronto,” and while police brass claimed performance wasn’t impacted by where someone slept, and the police union underscored how expensive it was to live in the city, a University of Toronto criminologist argued the important connection between where a police officer lived and how a police officer did their job.

Freelance writer Andray Domise revisited this question with an op-ed in the Monday, January 21 Globe and Mail, “The problem with parachute policing.” To quote from this opinion, “When neighbourhood residents know their officers as invested stakeholders in the community’s fortunes, the relationship generally changes for the better.” And, “…as it stands now, the perception that officers have no stake in the community once they’ve stowed their badges and guns can only further erode resident trust of police, given the history of random street checks, brutal force applied to citizens who have committed no crime, and failure to report incidents to the civilian oversight agency.”

Last year, Peter Sloly, a former Toronto deputy chief, estimated that 80 to 85 per cent of Toronto’s cops didn’t live in the city. Toronto has a population of about three million, and a median household income of $75,270 in 2017. Police household incomes are higher than for most families in Toronto, and while we shouldn’t complain about what we pay our cops, we can expect them to be better connected to the communities they patrol, and the people who pay their bills.

Yes, housing and home ownership in Toronto is a challenge, but all the same, there are pluses and minuses in choosing to live an hour outside the city. While we must give officers some leeway in finding a home, we must also recognize the benefits for Toronto by having our police as neighbours.

Next time, back to our prison industry.

Solitary Confinement

…..for now, a few words.

Canada’s provincial/federal prison industry uses various labels to define separating an inmate from population. For clarity, when anyone is put in close confinement for up to 22 to 24 hours per day with little or no human contact, that is solitary confinement. Conditions are worsened when that person is deprived of personal property, or put on a restricted diet, or denied access to resources.

For a time, our federal government even denied Correctional Service of Canada used solitary confinement, preferring less severe terminology, and pointing to policy that safeguarded inmate welfare. But, CSC also consistently rejects that a conflict between policy and practice exists, in spite of overwhelming contrarian evidence.

Media coverage of solitary confinement has been extensive over the last few years, two major law suits against the federal government have played out, there’s a class action protesting its use pending in Ontario, and legal actions proliferate elsewhere in the country.

We’ve hesitated to join the ‘solitary confinement discussion’ in the belief that the exposure, controversy, and criticism would move the goal posts to a place where we could applaud positive outcomes in a more enlightened environment.

Sadly, if that is ever to be, it will take more than the efforts we’ve seen so far.

For all the talk, for all the coverage, for all the adverse court judgments, for all the science, provincial and federal governments are wriggling to find ways through the noise and around the legal condemnations to end up back at square one but with new labeling and tweaked policies. Let’s call it solitary confinement refigured.

Ontario passed legislation last year in an attempt to satisfy critics, but it didn’t receive Royal Assent before the latest election. It sits in limbo. The new government is looking to put forward its own version, and in the meantime, we’ve learned the use of solitary confinement in Ontario’s provincial jails has actually increased.

The Liberal federal government promised a different perspective on the Conservative tough-on-crime agenda, and the present scrutiny of solitary confinement policy prompted prioritizing a look-see in that direction. But, the government stalled and delayed, and two major segregation law suits, one in B.C. and the other in Ontario, went against it.

Our government appealed the court decisions on the one hand, and put forward Bill C-83 as a ‘solution’ on the other. As a compromise, the courts in Ontario and B.C. gave Ottawa a few more months to get its act together. C-83 passed first reading and is in committee, but its intent is to mollify all stakeholders by yielding a little to everyone. That spells failure.

Our prison industries are working industriously on apparent changes to solitary confinement which in truth will have little or no impact on improving sentencing goals. Yes, there has to be recourse for circumstances where difficult and dangerous incidents arise, but the proposed federal legislation is vague and subjective where security and control is important.

Federal or provincial, our governments are determined to exclude at-arms-length third party oversight or hard limitations on how long and to what degree it segregates prisoners. It is dead set against any push to “light up the darkness” or make our prison agencies accountable and transparent.

This is one more item getting deserved attention, and we’ll return to it down the road. In the meantime, one wonders…….

……exactly why are our politicians and civil servants afraid to do the right thing?

Another rock is turned over!

Millhaven’s Visitor Review Board wouldn’t respond (December 23 posting)…..
…..and we pointed that out!

January 16, 2019

Visitor Review Board,
Millhaven Institution,
Bath, ON K0H 1G0

Re: Suspension of PFV’s & visiting sanction at Millhaven Institution

Visitor Review Board:

Your November 29 letter over Correctional Manager D. Payette’s signature did not address the substance of my November 12 letter, noting only that it was presented to the VRB, read, and then placed in Brennan Guigue’s visiting file. You were also dismissive of what Brennan Guigue had to say when he attended the November 14 Board meeting.

That is not acceptable.

When, as your letter read, “During processing, there was a positive indication on one of our Drug Screening Tools,” why were the police not involved? If I was presumed to be carrying drugs, bringing in the police was a next step to recover contraband, to be followed by a press release on the CSC web site announcing a seizure at Millhaven Institution.

Why were the police not called on November 9? The involved party/parties at Millhaven knew there was no ‘package’ to find. There was no press release in the offing. Simply, the cancellation of this visit was the objective. Moreover, my visit was cancelled before I arrived at the prison on Friday morning; it was only a matter of logistics after I checked in. I know that. Brennan Guigue knows that. My circle in the community at large knows that.

The Millhaven Visitor Review Board approval of PFV’s represents the one opportunity where my son and I can spend time together, given my circumstances, and that was considered in your deliberations. In spite of the institution’s reputation in the community, my only concern on that Friday morning was doing without some of the supports that help get me through the day because of what V & C doesn’t allow into a PFV.

If interests at Millhaven don’t like my advocacy and activism over many decades, so be it. If those same interests don’t like Brennan Guigue’s insistence that our prison system and its employees comply with policy, so be it. So be it that I don’t like CSC practice that runs contrary to directives, or that my public servants use ministerial mandates as toilet paper. No matter. When Millhaven management approves a PFV application, Millhaven employees up and down the line have no choice but to accommodate.

I was polite, compliant and respectful on November 9 when I had good reason not to be. But then, the VRB “visiting sanction” specified in your November 29 letter endorsed staff misconduct and discredited CSC’s public face. Given that, why would I make the effort to return to Millhaven, only to again risk interference by a conflicting agenda?

PFV’s are my sole available avenue to normalize a relationship with my son, and they are a priority. However, your insistence on listening only to your own counsel challenges prospects for future visits.

I’ll be weighing my options judiciously.

…..copied to Millhaven staffers, regional, national and senior Ottawa management. Responses?
Not likely.
And if necessary, more is waiting in the wings.

Bad law gets ditched……

……..ONE DOWN, HOW MANY MORE TO GO?

“A law that prompted a rare rebellion among judges has been declared cruel and unusual punishment, and therefore unconstitutional, by the Supreme Court of Canada.”

So began a Globe and Mail article under Sean Fine’s byline on Saturday, December 15 of last year. It followed a much earlier Globe editorial from April 22, “Time to ditch this bad law”, published when the Court was about to take up the question.

In 2013, the Conservative government under Stephen Harper made a previously discretionary “victim surcharge” mandatory. Introduced in the 1980s, judges could waive the automatic penalty imposed on offenders, but the Conservative tough-on-crime agenda did not permit exceptions.

The money was to go to victim services and the Harper government held that the $100 surcharge for each minor offence and $200 for each serious breach was aimed at making offenders more accountable.

According to Sean Fine, a decision released by the Supreme Count on December 14 said, “There was no accountability in trying to squeeze money from the very poor, the homeless and the addicted.” Phrases such as “grossly disproportionate,” “outrage to decency,” “abhorrent,” were sprinkled throughout the Court’s ruling.

The Liberals in opposition criticized the 2013 legislation, and later announced their intention to make changes when they formed a government. But action stalled and judges across the country began ignoring the law, or ordering surcharges as low as 30 cents, or giving offenders up to 99 years to pay.

A group of inmates challenged the law and the case wound its way eventually to the Supreme Court. This is only one of a series of setbacks against the Conservative agenda. As Sean Fine wrote on December 15, “Taken together, the Court’s crime rulings constitute clear boundaries for future governments tempted to push punishment at the expense of other sentencing goals.”

This common sense perspective impacts legislators and the courts, but scrutinizing our prison operations with the same set of eyes is long overdue.