“In Canada, we don’t send people to prison to be held in demeaning, undignified and painful confinement.  You’re sent to prison to serve a sentence and to be prepared for release.  And you can’t do that while you’re isolated in a dry cell under 24-hour surveillance.”
Howard Sapers, Correctional Investigator of Canada (2004 to 2016)

)()(.

Dry cells don’t have running water or a flushing toilet, lights are always on, and occupants are watched by guards and security cameras 24 hours a day, even when using the toilet.  A dry cell is a search procedure authorized when an institutional head (warden) has reasonable information to believe an inmate has ingested or is hiding contraband in a body cavity.  If an inmate has ingested or hidden contraband inside their bodies, the expectation is that it will eventually be expelled.

Bill C-83 eliminated the use of administrative segregation (solitary confinement) and established structured intervention units.  It also made changes to the use of dry cells.  The bill removed x-rays as a search option for contraband and left dry cell confinement as the only recourse.  The bill did add a provision that an inmate under such scrutiny “shall be visited by a registered health care professional at least once a day.”

Howard Sapers accepts that dry cells can play a role in keeping institutions safe but insists their use should only be a last resort, and then only with strict oversight.  In his 2011-2012 annual report, he recommended an “absolute prohibition on dry cell placements exceeding 72 hours,” after compiling evidence from the overseen and the overseers, reviewing CSC policy, and studying international practices.  Correctional Service of Canada wouldn’t put a time limit on dry cell placements but agreed to more guidance and input from senior staff members.

Current Correctional Investigator Dr. Ivan Zinger calls dry cell conditions “by far the most restrictive imaginable, even more so than the conditions of administrative segregation.”  The procedures CSC introduced upon Mr. Sapers recommendations don’t satisfy Dr. Zinger and he again called on the agency to place a 72-hour limit on dry celling in his 2019-2020 annual report.  Again, CSC rejected a time limit, “as it is more than feasible to delay bowel movement beyond 72 hours.”

Women have a greater risk of maltreatment in dry cell placements under the law as it stands now.  A court challenge was set in motion in Nova Scotia last November on behalf of a Nova Institution for Women inmate who was confined in a dry cell for 16 days in May of last year after guards accused her of hiding contraband in her vagina.  A subsequent doctor’s examination found no foreign objects in her body.

The woman’s lawyers claim she was subject to extreme stress that exacerbated existing mental illnesses and described her experience as torture.  Further, the law discriminates since objects are not expelled from the vagina.  What’s more, back in 2011 a warden at an Alberta women’s institution testified before the federal Standing Committee on Public Safety and National Security that dry cell interventions are less effective with women.  That was in 2011!

Source:  Shaina Luck, “Federal prison investigators press for changes in use of ‘dry cells’.”  CBC News – posted November 10, 2020

)()(

Addendum – “Dry celling” is a contentious issue, just as is any form of close custody.  Conditions of confinement figure prominently in the number of complaints to the correctional investigator’s office, and the appeals to prisoner advocates. 

Note the earlier quote from CSC in rejecting a limit to the use of dry cells, “as it is more than feasible to delay bowel movement beyond 72 hours.”  To the degree that the point is valid, and it’s a stretch, it has more to do with rejecting outside interventions than it does with a person’s bowel habits.

In general, credible and lawful placements in restrictive detentions and/or loss of privileges aren’t in dispute when supported by policy, like it or not.  But practice is often in conflict with policy, resulting in arbitrary actions that are retaliatory, punitive, and reactionary.  All the while, the absence of an effective grievance process only serves to charge the tension.

As always, more to come……

BILL BLAIR IS A DISAPPOINTMENT: –

December 10, 2020

The Honourable Bill Blair,
Minister of Public Safety,
Ottawa

Is Correctional Service of Canada a rogue agency?

CSC knew its solitary confinement policies would not survive scrutiny but left it to your government to legislate C-83 and has since worked to find a path around the bill’s intent.

Some time ago, you had to intervene on behalf of Professor Anthony Doob and his panel to get information on the implementation of C-83’s provisions that Correctional Service of Canada had failed to deliver in a timely manner.

Now, with two reports in hand that are critical of CSC’s isolation techniques, the Globe and Mail said on November 16 that, “Public Safety Minister Bill Blair said the findings raised ‘serious concerns’ and vowed to address them.”

The only option to make a “correctional service” out of a “prison industry” is to knock down what we have now and start over.  CSC knows though that you can huff and putt the day long, but you will soon move on, thankful to be rid of the file, and the agency will be left to indoctrinate your successor.

So much for good governance.

)()(

Bill C-83 is an Act to amend the Corrections and Conditional Release Act, under which Correctional Service of Canada is governed.  C-83’s primary obligation, although not its only aim, is to eliminate “administrative segregation” (solitary confinement) in Canada’s federal prisons and to establish “structured intervention units” as the alternative.  (Note that nowhere does Correctional Service of Canada ever use the words “solitary confinement.”) 
C-83 received Royal Assent on June 21, 2019.

The legislation was a response to rulings by Courts of Appeal in British Columbia and Ontario that rendered the use of administrative segregation unlawful.  The United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules, adjudged Canada’s practice of solitary confinement as torture.  Intentionally then, the policy around C-83’s structured intervention units exceed the minimum Mandela Rules standards.  Canada considers itself a champion of human rights, as it should be, and takes pains to criticize human rights abuses in other countries, as it must.  But what is that adage about throwing stones while living in a glass house?

)()(

So, where are we now?

Patrick White’s “Federal prisons still use solitary confinement, report says,” in the Wednesday, February 23 edition of the Globe and Mail earlier this year, and Murray Fallis’ “Canada’s prisons consistently violate Mandela Rules,” in the Thursday, February 25 Toronto Star say we’re not doing well.  As criminologist Dr. Anthony Doob put it, “We think that the time has come for Canada to acknowledge that it still has solitary confinement and torture by another name.”

To be fair, Correctional Service of Canada has made efforts to implement the provisions of C-83 and wants to be seen and heard to be making an effort.  The agency can’t claim genuine support for the bill’s intrusion into its monopoly though, and there’s no doubt it hasn’t found favour in the trenches.  In any case, CSC must identify the roadblocks to successfully meeting the bill’s mandate, and proactively work to resolve what it finds.  As a suggestion, additional mental health and mediation resources are certainly a part of the solution.

Bill Blair announced the creation of a two-year advisory panel in late July to look into prisoner isolation practices and assess and report on issues with implementing new policies.  Former correctional investigator Howard Sapers (2004 to 2016) will chair the panel which will include a range of experts, including Anthony Doob.  There are plans to provide a secretariat function to support the panel and work with CSC when necessary.

A good move, but the final paragraph of the above December 10 letter is always relevant.

Bill C-83 and ‘dry cells’……next time.

……CONFRONTING INEQUITIES…….A BEGINNING?

The Liberal government tabled Bill C-22 in mid-February to address the overrepresentation of Indigenous and Black people in the justice system.  It would repeal mandatory minimum penalties for all drug offences and some firearm offences, expand the use of conditional sentences (i.e. house arrest) for a number of crimes and allow police and prosecutors to divert drug possession charges away from the courts.

Critics say it’s a step in the right direction but doesn’t go far enough.  For one, it does not repeal simple drug possession from the Criminal Code.  Lawyers and advocates say this was a missed opportunity to what is otherwise a strong bill.  “It’s probably the first progressive piece of criminal justice reform in the last two decades, so it’s a sight for sore eyes.  It’s a huge step in the right direction.”  This from Daniel Brown, vice-president of Ontario’s Criminal Lawyers’ Association.

The sentencing laws imposed by the Stephen Harper government did not deter crime, and for one, led to the custodial overrepresentation of minorities and low-risk, first-time offenders.  “This rigid one-size-fits-all approach makes it impossible for judges to take into account mitigating factors in order to impose a sentence that fits the crime,” said Justice Minister David Lametti earlier this year.

Senator Kim Pate, who is heavily involved is social justice issues, introduced the legislation in the Senate.  “Bill C-22 emphasizes the vital importance of alternatives to criminalization and imprisonment to redress systemic racism.  It is regrettable that the government acknowledges these realities yet stopped sort of taking the kinds of bold steps we need right now,” she said.

Opposition Conservatives were quick to bash the bill, claiming removing mandatory minimums will not help Canadians living with addictions.  Frankly, the Conservatives do not know what they’re talking about.  A pushback letter in the spring challenged Conservative justice critic Rob Moore and House leader Gérard Deltell:…..

Messrs. Rob Moore & Gérard Deltell:

Conservative Party attitudes towards crime and punishment are medieval.

……. I accuse you and your fellow party members of advancing punitive, regressive, and retributive policies in support of a reactionary judiciary and a brutish prison industry.

Bill C-22 is anathema to you.  It doesn’t go far enough but deserves to become law all the same.

I hope that pisses you off.

Critics say the bill should have eliminated drug possession offences altogether rather than requiring police and prosecutors to consider alternatives to criminal charges and incarceration.  According to University of Toronto criminologist Akwasi Owusu-Bempah,  “we know that police officers do not exercise their discretion evenly across social groups, and so racialized individuals, Indigenous people and economically marginalized people are less likely to benefit from positive police discretion.”

)()(

Okay, so we have this bill moving through the House and Senate towards Royal Assent.  Right?  This Bill C-22, “hailed as one of the most progressive pieces of criminal justice legislation in years”, according to Jacques Gallant writing in the Toronto Star in early July.  Right?

Well, not so fast.  The Liberal government was first elected in 2015, promising criminal justice reform, but waited ‘til February of this year to produce what Toronto criminal defence lawyer Annamaria Enenajor calls “progressivism pageantry.”  “Which is an outward display of values and enunciation of principles that are consistent with progressive ideals, particularly in terms of reforming the criminal justice system, but no actual, meaningful changes or action.  It’s all pageantry.”

The bill barely budged in the House of Commons, which rose for the summer in June.  If a fall election is called, the bill will die.  The Liberals and Conservatives are blaming each other for delays.  In the meantime, during the present government’s tenure, between 2015 and 2020, the proportion of federal prisoners who are Indigenous rose from 24 per cent to 30 per cent.

Again, Criminal Lawyers Association Vice-president Daniel Brown noted that while the government may “lament” the delays in getting C-22 passed, it’s had years, including four years as a majority government, to implement meaningful reform.  “Six years later, they haven’t been able to accomplish it, and anyone watching would wonder whether or not (C-22) was a hollow promise at the tail end of their tenure.”

Justice Minister David Lametti must answer for that:

The Honourable David Lametti,
Constituency Office,
Montreal

Re:       Bill C-22

Minister Lametti:

Your government has had years, four of them with a majority, to craft and shepherd C-22 through Parliament’s bureaucratic labyrinth from the bill’s inception to Royal Assent.

What happened?  Yes, there’s been justifiable criticism that C-22 doesn’t go far enough, but all the same, it’s been called a “huge step in the right direction,” a strong bill, and “one of the most progressive pieces of criminal justice legislation in years.” 

Where is it now?  A parliamentary custodian is poised with it over a recycle bin, pending the call for a fall election when C-22 would die.  We can only hope that won’t happen.

This failure to execute is on you.  As Daniel Brown put it, “anyone watching would wonder whether or not (C-22) was a hollow promise……”

What are you going to do?

Now.  Prisons.  Back to where we were…..