Month: February 2025

“Inmates have no rights.”

turnoverarocktoday Justice & the Penal Systems

THAT ISN’T A CALL TO ARMS.  IT’S NOT A LAMENT.  IT’S NOT A DEFENCE OR APOLOGY.  It’s a simple and direct judgement delivered evenly and matter-of-factly many times over the years by men and women incarcerated within our federal prison industry.

But we know otherwise, don’t we?  We know because Correctional Service of Canada Commissioner Anne Kelly, the chief executive of our federal prison industry, and numerous assistant and deputy commissioners under her tell us that the agency’s lawfully respectful policies support its mandate.  That often-repeated mission is to contribute to public safety by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control.

Given this assurance, why then the inmate complaints, the lawsuits, the probing questions and recommendations from the Office of the Correctional Investigator, and the scrutiny by the Senate of Canada’s Standing Committee on Human Rights?  And that’s just for a start.  All the while, CSC’s responses are inclined to turn back inmate complaints, to rely on the Attorney General to bury lawsuits, and to patronize government bodies with a condescending verbosity to reassure that every concern was, is, or will be addressed, usually under on-going studies offering potentially promising results in due time.

Then too, the Supreme Court of Canada has been asked more than once to clarify the rights of prisoners in Canada.  It has ruled that prisoners have rights to life, liberty, security of the person, and equality, plus freedom from cruel and unusual punishment, as guaranteed by the Charter.  Prisoners have a right to fair disciplinary procedures and to be given reasons for decisions that affect them.  They have a right to health care, freedom of religion, and are entitled to grievance procedures.  Prisoners are entitled to consultation on significant decisions other than security issues.  And there is more, like the right to counsel.

To sum up, the Court says that “prisoners retain the rights and privileges of all members of society, except those that are restricted by their sentence.  However, the rights of prisoners may be limited in some circumstances to protect the public, staff, and other prisoners.”

Correctional Service of Canada has always pushed back on criticism and is often dismissive of naysayers.  Behind closed doors, Commissioner Kelly and her management team must recognize  though that all is not as they want us to believe it is.  It’s odd that CSC hasn’t felt prompted to marshal a body of at arm’s length compliance personnel to guarantee that it stands on solid ground when engaging its critics.  After all, this is a government agency with 43 far-flung institutions and a payroll of about 20,000 employees.  No doubt there are many well-intentioned men and women in the Service, but even angels need oversight, and there are not 20,000 angels in CSC’s employ.

When inmates claim they have no rights, they usually mean their rights are ignored, both by staff members who supervise them daily and the staff they see less frequently.  Inmates usually mean that when they file complaints and grievances, which is their right, they can be labelled “difficult and demanding” and can end up on the institution’s “shit list.”  That can have negative and improper consequences.  Requisitions to Inmate Purchasing somehow get lost, repeatedly.  Simple requests are delayed interminably.  Cells are searched more often.  “No” is the answer to most questions.

Commissioner Kelly knows this.  She’s been there.  She’s seen this.  She’s been a part of it.  Likewise, her co-workers at National Headquarters in Ottawa.  So, why this see-no-evil, hear-no-evil restraint?  What’s the intent?  What are they guarding?  Who are they protecting?  More importantly, why do the higher-ups with the power to ask hard questions stand down?  They back off because they know they’ll be smoke screened, too.  Better they just accept that timeworn Victorian adage, “I don’t care what you do, as long as you don’t do it in the streets and frighten the horses.”

Do inmates have rights, Ms. Kelly?  Yes, of course.  Well, it depends.  Sometimes.  Maybe.  We’ll see.  Who wants to know?  Quick, turn off the lights.  Lock the doors.  Be quiet.

The horses are nervous.

OPCAT is a must. (See “Why OPCAT?” February 9/25)

Why OPCAT?

turnoverarocktoday Justice & the Penal Systems

THERE ARE GOVERNMENT SANCTIONED HUMAN RIGHTS VIOLATIONS EVERY DAY IN CANADA, and federal, provincial, and territorial jurisdictions are all culpable.  This despite the persistent claims that Canada champions human rights everywhere.  Yes, everywhere but here?

That’s why OPCAT!

The last entry in this space dedicated to this apparently alarming United Nations protocol is dated January 7 of 2024.  Like two earlier postings and several other references, our government is urged to ratify OPCAT to back up our human rights guarantees.  More than ninety countries are on board.  Several have stepped forward to ask Canada to do the same.  We haven’t.  As an aside, the United States has also declined to take part, but that is no surprise.

The Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) was adopted by the United Nations on August 14, 2006.  That’s correct.  2006!  It complimented the Convention Against Torture (CAT), referred to as the “Mandela Rules,” adopted by the UN in December of 1984 and which came into force in June of 1987 after 20 countries, including Canada, ratified it.

So, what does OPCAT do?
It sets up a routine of regular, independent visits to places of detention (i.e. immigration, military, and juvenile detention centers, prisons, police stations, psychiatric hospitals, and any place where people might be deprived of their liberty under public authority).
National and international bodies visit with a goal to preventing abuse and ill-treatment of detainees.
OPCAT further establishes independent National Preventive Mechanisms (NPMs) to monitor places of detention and make recommendations to governments.
OPCAT’s intent is to protect people who are deprived of their freedom, help to prevent the most serious human rights’ violations, and holds states accountable in a non-combative way.

Correctional Investigator Ivan Zinger and the Canadian Human Rights Commission’s Charlotte-Anne Malischewski wrote four federal government ministers and several civil servants on November 1, 2023, urging them to finally ratify OPCAT.  (See OPCAT! OPCAT! OPCAT! from December 3, 2023, and Reasoning for OPCAT dated January 7, 2024).  They may have received responses but there’s been no action.

Deputy Minister Shawn Tupper’s December 14, 2023, letter to this writer, reviewed in the January 7 posting, proves the necessity for OPCAT.  It lists the laws and policies Canada already has in place to guard human rights.  In practice they do not prevent violations.  Mr. Tupper lapses into political double-speak when he writes, “consideration of Canada’s potential accession to the OPCAT is ongoing.  Consultations have previously been undertaken, and efforts continue to be explored within the Government of Canada to work through the range of policy and implementation considerations.”  Since 2006, Shawn?

Let’s look at one example of OPCAT’s potential.

In 2019, the government passed an amendment to the Corrections and Conditional Release Act which abolished the use of “administrative segregation” (solitary confinement) in federal prisons and replaced it with “structured intervention units” (SIUs), meant to reduce prisoner isolation and increase out-of-cell time with specified meaningful human contact.  This change was prompted by government losses in both the Ontario and B.C. Courts of Appeal, which ruled that the status quo violated the Charter.

The government wanted to avoid a further certain loss in the Supreme Court of Canada, and given the possibility that the proposed legislation would be ruled inadequate, a ‘rigorous’ review requirement was added to the bill.  The government “must” undertake a comprehensive review of the legislation starting in 2023.  The law doesn’t say “may” but “must.”  It’s now 2025 and the “must” that Parliament legislated to begin in 2023 hasn’t started yet.

You must follow the law.  If you are charged with a crime, you must show up in court…even if it is inconvenient.  Not appearing may lead to a further criminal charge, and 45 per cent of Canadians who are found guilty of failing to appear in court go to prison.  It seems things are different when the law requires Parliament to inconvenience itself, especially when it is politically inconvenient.

Further, this legislation set up a 10-member Structured Intervention Units Implementation Advisory Panel with a mandate expiring on December 31, 2024.  The group was chaired by former Correctional Investigator Howard Sapers and included Professors Anthony Doob and Jane Sprott, and John Howard Society of Canada executive director Catherine Latimer, all seasoned observers of our carceral system.

The panel’s title explains its purpose.  12 reports were issued during its term, and all underscored the extent to which the purpose of the law is not being achieved.  The use of solitary confinement persists throughout the prison system, and vulnerable groups are especially at risk of experiencing its negative effects.  Many prisoners are treated in ways the courts have prohibited because they violate the UN Nelson Mandela Rules.

You would think our government would be eager to obey the law, carry out the required review and initiate improvements.  You’d be wrong.

OPCAT could not order the Canadian government to follow its own laws, or to make changes in how prisoners are treated, but OPCAT would put Canada on notice internationally.

This is but one instance where OPCAT will work to keep Canada honest.

There are government sanctioned human rights violations every day in Canada.