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.

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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?

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.

Underground economy……

…..big business in the big house.

The notice reprinted in part here appeared last week on Correctional Service of Canada’s web site:-

On December 29, 2018, at about 12:15 p.m., as a result of the vigilance of staff members, a package containing contraband was seized in the medium security unit at Collins Bay Institution.

The contraband and unauthorized items seized included 2520 grams of tobacco, 244 grams of marijuana, 55.6 grams of crack-cocaine, mini cell phone and charger as well as drug and tobacco paraphernalia. The total estimated institutional value of this seizure is $85,000.

The medium security unit of Collins Bay Institution was placed on lockdown to allow staff to conduct a general search. The search was ordered to ensure the safety and security of the institution, its staff and inmates.

Visits to the medium security unit have been suspended until the search is completed.

The police have been notified and the institution is investigating.

Similar notices show up regularly.

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For as long as men and women have been confined against their will, there have been other men and women moved by profit or loyalty to cater their needs. This commerce was tolerated for centuries in most cultures, and even encouraged as a benefit to keepers and their masters.

Today, in Europe, North America, and a few countries elsewhere, ‘contraband’ is condemned, judged contrary to good order, the law, and equitable opportunity for all in prison. But over the years, as practice and technology developed to stem illicit trade, and improvements and advancements countered the ingenuity of smugglers, one constant has remained. Getting goods past the barriers outweigh the risks.

The Collins Bay seizure in December was a major ‘bust’ but suggests too that traffickers must be successful some of the time if they’re willing to give up what was lost last month. That over five pounds of tobacco topped the list of what was confiscated points down a path where Correctional Service of Canada is at least partially responsible for the demand that drives the contest to supply an ‘underground economy’.

The community consents to limitations and restrictions on access to drugs and weapons, and damns criminal behaviour. Inmates in our prisons are understandably subject to the same prohibitions, and CSC’s interdictions should be expected. But, there are several examples that exacerbate prison living conditions where the agency could divert some attention away from contraband.

Two have previously been posted. “Please sir, I want some more.” on December 2, and “Now, how ‘bout money!” from December 15 infer that a satisfactory diet with sufficient food and a proper pay scale permitting offenders to meet their obligations won’t eliminate the black market but it’ll relieve some stress. So would a flood of relevant programming, additional yard and gym periods, and increased extra-cell time, as a start.

The tobacco ban now in place for ten years never made sense. A package of cigarettes selling for $10 in a corner store is worth $500 in prison, and that demand calls for an examination of the present policy. Taking tobacco away from a smoker does not make a non-smoker; it leaves a smoker without tobacco. We may accept a bar on smoking in enclosed spaces as a reasonable restriction, but there are open-area alternatives, and a range of cessation supports to boot. Without the same options in our prisons, the ban is counter-productive.

Perhaps Correctional Service of Canada simply enjoys the extra work. The underground economy will never go away, but it doesn’t have to be the battle it is.

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“Offenders are sent to prison as punishment, not for punishment.”
Dr. Ivan Zinger, Correctional Investigator of Canada
2017-2018 Annual Report, page 4.

Now, how ’bout money!

“Please sir, I want some more” from December 2 focused on food as the first of two examples where CSC keeps inmates “desperate and reckless”. Money is the second example referenced and very much interconnected with food.

We’ve talked about money before and we’ve talked about money more than once. Inmate pay in the federal prison system rates a SNL skit if reality wasn’t beyond credibility, and otherwise so painful for so many.

“Repetition is the mother of perfection,” according to Thomas Keller, Ryan Straten, and others, and we’ll go with that premise in hopes constant harping might bring about change. Sounds far-fetched, doesn’t it?

So, here we go again.

Briefly, a parliamentary committee established a pay-scale for offenders in federal institutions in 1980. It was based on the minimum wage at the time, reduced by allowances for room and board and other relevant expenses. That pay-scale has stayed in place for almost four decades…..with no increases, not even adjustments for inflation.

But, the costs of what inmates are expected to do with that money keep rising year by year, including the price of food to supplement the meagre diet in institutions. In 1980, milk was less than $2/gallon, bread 50 cents/loaf, bacon $1.75/pound, flour $1.00/5 pounds, ground beef $1.00/pound, peanut butter $1.50/jar, potatoes $1.00/5 pounds, pork and beans 40 cents/can, is just a sampling.

To throw salt on the wound, Stephen Harper (it figures) supported a 30% reduction in pay in 2013 and eliminated at least one category on the scale. The cut was to support room and board expenses….and to help cover the cost of the telephone service.

An inmate legal action against the cuts failed because the Court was not prepared to rule on “the wisdom of the policy decisions made by the government.” The court chose not to comment on the veracity of that wisdom.

Well, not only did a government committee previously decide inmates already paid for their telephone services, but Correctional Service of Canada gets a kickback from Bell Canada, a percentage of the telephone revenue collected from inmates.

To boot, the scale established in 1980 not only accounted for room and board, but if the government had done for inmates all along what it does for government employees by granting pay increases, it wouldn’t be necessary to take another chunk of inmate pay.

December 14, 2018

The Honourable Ralph Goodale,
Minister of Public Safety,
Ottawa, ON K1A 0A6

Re: Federal prison inmate wages and allowances

Dear Minister Goodale:

When Prime Minister Trudeau issued his mandate letter to Minister Jody Wilson-Raybould calling for a review of “the changes in our criminal justice system and sentencing reforms over the past decade,” it was expected and hoped Correctional Service of Canada policies would come under scrutiny.

After all this time, there hasn’t been a lot of movement. Oh yes, CSC is working to reconfigure its solitary confinement practices but that’s a result of civil actions against the Service, and not ministerial orders.

Of the areas in the federal prison system needing a closer look, financial allowances and wages for inmates is a priority. You know the present pay-scale was set in 1980. Not only have there been no increases in the last near forty years, but the Harper government supported a 30% cut and eliminated extra pay for work with CORCAN. Today, federal prisoners are expected to use 1980 dollars, reduced by 30%, to meet their needs at 2018 prices.

When would you think “slave labour” is a warranted designation?

Yours truly,

Charles H. Klassen

cc: The Honourable Jody Wilson-Raybould, Minister of Justice

We’ll continue with other examples of government “wisdom” at the beginning of the New Year. Until then, the next two postings will update “A slap in the face; a pat on the back.”

“Please sir, I want some more.”

Charles Dickens’ Oliver Twist is found in the street as an infant and put in a workhouse by the age of nine where he and other boys unravel old rope. In the workhouse Oliver is the victim of slow starvation, the diet consisting of three small bowlfuls of oatmeal gruel per day, an onion twice a week and a roll on Sunday. Under this regimen which reduces the boys to living skeletons, Oliver and his companions become voraciously hungry.
At last they hold a council and choose by lot one among them to ask the overseer for more gruel. The victim of the lottery is Oliver Twist. The time arrives, and ‘desperate with hunger and reckless with misery’, Oliver gets up from the table and walks slowly to the master, basin and spoon in hand…….
“Please, sir, I want some more.”
Oliver got nothing but trouble.

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Pivot to the 21st century and our federal prisons today in this country, and to two examples of how Correctional Service of Canada keeps offenders “desperate with hunger and reckless with misery.” We’ll look at just one of those examples here.

FOOD: The previous federal government under Stephen Harper ordered ministerial across-the-board cost-cutting measures. Correctional Service of Canada followed suit, finding economies that would primarily impact inmates, whose concerns CSC need not consider or address.

Food was one target, and the Service initiated a “Cook Chill” process, bulk preparation, cooled and distributed to institutions for reconstitution and heating. Were there complaints about food quality and serving sizes? Absolutely. There still are. And worse, economies decreased spending to $5.41 per day per inmate, a 2600 daily caloric intake which is recommended for a low activity male, aged 31 – 50! Not as severe as Oliver’s three daily bowls of gruel but leaving inmates hungry all the same. And, not exactly the conditions conducive for offenders to be “well-prepared to lead safe, productive, law-abiding lives” upon release.

“If you don’t have something going on the side, you’ll starve!”, said one source.

But wait. Prison inmates can purchase additional food from a canteen, although why they should have to do that just to supplement a poor diet is grounds for argument.

Hold it! Buying food from the canteen takes money. We’ll get to that next time.

Bob’s “Blue Wall”

……….Robert Clark weighed in on another road block “to ensure that when offenders return to their communities, they are well-prepared to lead safe, productive, law-abiding lives.” (From Minister Goodale’s mandate letter to CSC Commissioner Kelly-September 2018)

Robert Clark retired from Correctional Service of Canada in 2009, rising through the ranks to become a deputy warden, and later authored “Down Inside: 30 Years In Canada’s Prison Service”, published last year. Experience taught him the culture within our federal prison system didn’t support positive outcomes for inmates, and in his dismayed opinion, that culture wasn’t likely to change. That doesn’t bode well for Ralph Goodale’s mandate to new CSC Commissioner Anne Kelly.

Mr. Clark also testified in the Supreme Court of British Columbia in July of last year at a lawsuit the BC Civil Liberties Association and the John Howard Society brought against Canada over CSC’s use of solitary confinement. (The BCCLA & John Howard won this action.) In his testimony, he talked about “the blue wall”, a code of secrecy where guards cover up for each other, an unwritten code that says correctional officers cannot “rat” on other guards.

Quoting from the July 19, 2017 Globe and Mail, “Mr. Clark testified there is considerable racism within the correctional service and a culture of collective indifference. He said employees often reach a point where they believe inmates are not worthy of their time and energy.”

When asked, Correctional Service of Canada in Ottawa released a statement claiming employees are expected to act in accordance with legal and ethical standards and are subject to a code of discipline. “We do not tolerate any breach of our policies and all allegations are thoroughly investigated regardless of the source.”

Now, the bulk if not all complaints against officers would come from inmates. Please refer to “inmates always lie” from “The Firewall” (November 4), and “the blue wall” above to assess the probable effectiveness of CSC investigations.

Robert Clark then guested on CBC FM Radio’s “The Current” on August 27 of this year to comment on an inmate strike in the U.S. Relating this to his perspective of Canada’s prisons, he told his host that the majority of staff in Canadian prisons is indifferent to the plight and rehabilitation of inmates.

He noted the move away from dynamic security in which guards and inmates interact, to static security where contact is limited, as an example of a regressive measure.