Should judges go to jail?

SHOULD JUDGES, PROSECUTORS BE REQUIRED TO VISIT PRISONS AND JAILS?

The Toronto Star’s Jacques Gallant, legal affairs reporter, posed this question in the paper’s December 23rd edition last year.

“Prosecutors routinely recommend jail time for offenders and then judges lock them up – but what do they really know about the places they’re sending people?” is how Mr. Gallant opened.

Daniel Brown, vice president of the Criminal Lawyers’ Association added that even defence lawyers visiting clients in jail and get just a glimpse “can’t really understand what it’s like to lose your liberty entirely, the indignity, the inhumanity of it.” Mr. Brown added, “I just think it’s one of those things that if judges understood better or Crown attorneys understood better, they would think twice before they insisted on jail for some offenses, or insisted on a lengthy jail sentence.”

Ontario provincial jails, which hold inmates serving shorter sentences of less than two years, also house a “remand population” of men and women awaiting disposition of their charges and they can account for up to 70% of people in custody. Research into Ontario jails also shows that Indigenous and racial minorities are over-represented in a system which has come under increasing judicial criticism as being cruel and harsh.

Lisa Kerr, a Queen’s University law professor involved with prison research thinks federal prison and provincial jail visits by Crown attorneys and judges would be a could thing, but cautions that conditions inside facilities change with regularity and vary from one institution to another. Courts don’t control where a convicted person will be sent or where they might be transferred during their sentence. She suggests that Crown attorneys be mandated to file evidence about prison conditions and programs when making submissions on sentencing.

There’s already a voluntary program in parts of Canada where mainly newly appointed judges visit provincial jails and federal prisons, Indigenous healing centres, attend a parole hearing and speak with experts, inmates and parolees. But, this is limited in numbers, is voluntary, includes only judges, and is not offered on a national scale.

Senator Kim Pate, former executive director of the Canadian Association of Elizabeth Fry Societies, and a member of the Senate of Canada’s Human Rights Committee, is committed to major custodial reforms and believes that parliamentarians who pass the laws that judges enforce should also be required to visit these same facilities. “Ultimately,” she says, “what a number of us want to work on is creating an environment where there are fewer people who end up marginalized and victimized as well as criminalized.”

So, if this proposal to educate our judges and court officers to better understand how the decisions they make will impact the lives of the people who pass in front them were to become practice, we could expect our prison industry to also benefit from constructive scrutiny as a result.

Now, how about we take yet another step to illuminate how our courts, our justice system works for our well-being?

Let’s require every Canadian citizen, exemptions allowed, to spend at least one half a day in a courtroom once a year. Management of the program would not be difficult. Court clerks would distribute personalized certifications when the court rose for lunch and at the end of the day. The documentation would be submitted with income tax returns to avoid a financial penalty.

We all have a part to play.

Solitary confinement – the government folds.

WHY?

“Ottawa abandons solitary case”, read the headline under the Globe and Mail front-page banner on Wednesday, April 22. For five years, the federal government has been aggressively defending the status quo in federal prisons on the one hand, and then attempting to mollify its critics with Bill C-83 on the other.

Canada’s Supreme Court agreed to hear arguments arising from lower court decisions in British Columbia and Ontario challenging Correctional Service of Canada’s use of solitary confinement, decisions that had gone against the government time after time and decisions which were persistently appealed by Ottawa.

“A joint statement released on Monday (April 20) from the offices of Public Safety Minister Bill Blair and Attorney-General David Lametti said the government decided to the abandon the appeal because legislation passed last year effectively repealed administrative segregation, the prisoner-isolation method akin to solitary confinement that has been the target of recent court challenges,” read the Globe and Mail story under Patrick White’s byline.

Don’t buy it.

The federal prison industry loathes attempts to shine a light on its operations. It is constant in sidestepping demands for public accountability and oversight. The government’s move to appeal each and every court ruling against the use of solitary confinement defended not just the practice but its entitlement to use whatever segregation policy it chose, its entitlement to establish any action, any behaviour, without question. In an environment where the Supreme Court would likely feel encouraged to uphold lower court decisions around solitary confinement, government obstinance would only serve to expose Correctional Service of Canada to greater scrutiny and criticism. Better to count one’s losses and withdraw.

As it stands, Bill C-83 does not meet the standards advanced by reform advocates. In the April 5th posting, Solitary confinement. It’s going to the Supreme Court, the Globe and Mail noted in a February 14 article that, “Bill C-83 was widely panned in prison law circles. In a letter to Ottawa, more than 100 lawyers and academics argued that it authorized ‘solitary confinement under another name’ and ignored lower court orders to adopt binding independent oversight and a 15-day limit on placement in isolation.”

That last posting also pointed to antipathy towards the new Structured Intervention Units on the front lines. While CSC has still to fully implement even the limited provisions of Bill C-83 in many institutions, some correctional officers…..and stress some…have taken it upon themselves to undermine the new policies as impractical, counterproductive, and unmanageable. A guard on a SIU range may demean inmates using language such as “goof” and “rapehound” to generate tension and conflict among the prisoners. Guards may kick inmate cell doors during their night walks along the range to disturb sleep, one more irritant to stress levels. An ‘accidental’ double-dooring will lead to an inmate-on-inmate assault, furthering arguments in opposition to the changes. (Double-dooring is the terminology describing a practice where guards open the door of a vulnerable inmate’s cell, and at the same time open the cell door/doors of that inmate’s antagonists in order to incite an assault.)

In the meantime, back in early March, Ontario’s Court of Appeal upheld a lower court decision that federal inmates should be compensated for time spent in solitary confinement The Court endorsed $40-million in damages awarded in two class-action cases from last year. The government had argued that since courts had only recently characterized Correctional Service of Canada’s use of segregation as cruel and unusual punishment, Canada was absolved for any historical use of the practice. So, CSC and the government were claiming they didn’t know isolation can cause physical and mental harm within a few days. Imagine that! All the same, don’t expect cheques in the mail any time soon.

What to do? Persist, persist, persist!

Solitary confinement – it’s going to the Supreme Court.

WHILE WAITING, THERE’S STILL WORK TO DO.

Back on February 14, the Globe and Mail published Patrick White’s “Solitary confinement headed for showdown at top court.”
“Canada’s top court has agreed to hear arguments on the constitutionality of prolonged solitary confinement, setting up a final showdown in a years-long legal push to ban isolation practices in federal prisons.”

The government passed Bill C-83 last year to mollify critics and address the shortcomings of current practices, but “Bill C-83 was widely panned in prison law circles. In a letter to Ottawa, more than 100 lawyers and academics argued that it authorized ‘solitary confinement under another name’ and ignored lower court orders to adopt binding independent oversight and a 15-day limit on placement in isolation.”

Tucked deep into Mr. White’s account was, “Correctional Service of Canada has also appointed University of Toronto criminologist Anthony Doob to head a panel that will monitor implementation,” referring to Bill C-83.

To this point, federal prisons haven’t fully executed the provisions of the Bill’s promises, and there are grim indications of a subversive bias at the institutional level against any change from prior policies and practices. CSC’s national headquarters is either not aware of this antipathy in the trenches or assumes all is well up and down the line and anticipates an at-arms-length scrutiny will echo its own bow to compliance.

Anthony Doob is a prominent Canadian criminologist and professor emeritus of criminology at the Centre for Criminology & Sociolegal Studies at the University of Toronto. According to Wikipedia, he is “one of the most prolific criminologists in Canada and is consistently one of the three most cited Canadian scholars in the field. His research has included studying the effectiveness of certain crime-reduction policies, including carding.”

We can expect Professor Doob to be objective, inclusive and thorough, but there is no harm in offering encouragement:-

March 27, 2020

Professor Emeritus Anthony Doob, C.M., FRSC,
Centre for Criminology & Sociolegal Studies,
Toronto, ON M5S 3K9

Re: Bill C-83

Dear Professor Doob:

Patrick White’s “Solitary confinement headed for showdown at top court” published in the February 14th Globe and Mail includes, “Correctional Service Canada has also appointed University of Toronto criminologist Anthony Doob to head a panel that will monitor implementation,” with reference to Bill C-83.

No doubt your experience tells you the work the panel you head will do must include the perspective of inmates, and in numbers at least equal to CSC staff members interviewed. Of importance too is that you follow your own counsel in observations and inspections to arrive at acceptable objective assessments.

Be forewarned. The Standing Senate Committee on Human Rights released “Interim Report – Study on the Human Rights of Federally-Sentenced Persons: The Most Basic Human Right is to be Treated as a Human Being (1 February 2017 – 26 March 2018)” in February of 2019. To excerpt from page 64 of that report, “….the committee was informed that a number of federally-incarcerated persons refused to meet with the committee for fear of reprisal. The committee was very concerned to find that this fear extended to communications with senators during site visits. In this context, it was particularly disturbing that at certain institutions, correctional staff surreptitiously listened to the committee’s confidential meetings with federally-sentenced persons, despite the committees (at times repeated) requests for privacy.”

With my best wishes for continued successes, I am,

Yours truly,

Charles H. Klassen

Good advice never gets old.

We Killed Soleiman Faqiri……

……THE CIVIL SERVANTS INVOLVED WORK FOR US!

Editors note: This timely entry interrupts the “Voice in the Wilderness” series….the final two installments will follow.

“More than a hundred Canadian doctors, lawyers, academics and politicians have signed an open letter calling for accountability in the death of a mentally ill man at the hands of Ontario prison guards in 2016.”

This is how Toronto Star reporter Margaryta Ignatenko began “Open letter calls for justice in jailed man’s death”, her story published by the paper on February 29th. The column acknowledged contributions from the files of Fatima Sayed, another reporter on the Star’s staff who has also written on the death of Soleiman Faqiri.

The letter was sent to Ontario Premier Doug Ford and underscores the frustration with a seemingly stalled second investigation into the death of Soleiman Faqiri. First time round, police declined to file charges, but the case was reopened when an eyewitness came forward, risking life and limb by doing so, prompting pressure upon the government to act.

Not to be left out, we wrote to Sylvia Jones, Ontario’s solicitor general, whose ministry includes responsibility for provincial jails:-

Monday, March 9, 2020

The Honourable Sylvia Jones, Solicitor General,
Queen’s Park,
Toronto, ON M7A 1A1

Re: Soleiman Faqiri

Dear Minister Jones:

The media coverage around the beating death of Soleiman Faqiri at Lindsay’s provincial jail in December of 2016 is missing a reality check.

No matter the issue guards had with Mr. Faqiri, once he was put in a cell, it was left only to close and lock the door. That didn’t happen because those guards intended to beat him. The more he tried to save himself, the more he was beaten. He was beaten in shifts by uniformed civil servants. He was beaten to death by uniformed civil servants.

Assaults on inmates by guards are common and frequent in Canada’s federal and provincial prison industry and only come to public attention when injuries need hospital treatment…..or an inmate dies. Assaults on guards by inmates are common and frequent too but are more in the public domain. Unmentioned is they always result in a beating of the offending inmate. That in addition to victims such as Soleiman Faqiri where guards are simply pissed off.

Take one piece of advice from this long-time advocate/activist. Check the institutional histories, the incident reports, for the guards involved, and for the officer in charge of the segregation unit at Central East in particular. He is after all responsible for directing the actions of his staff.

You and so many other public servants appear anxious to make this manslaughter by fellow provincial employees just go away. That’s a sad indictment of justice in Ontario.

Yours truly,

Charles H. Klassen

Doug Ford was copied, along with Senator Kim Pate, a signatory to the letter, Yasin Dwyer, Executive Director of the Muslim Chaplaincy of Toronto, Nader Hasan, the Faqiri family lawyer, Dr. Dirk Huyer, Ontario’s chief coroner, Warren Thomas, president of OPSEU, and Toronto Star reporter Margaryta Ignatenko.

……..justice for Soleiman Faqiri is still a long way off.

Yukon gets a Gold Star!

“Yukon to place strict limits on solitary” headlined Patrick White’s Globe and Mail prominent front-page story on October 28.

Editor’s note: This was prepared for publication late last year prior to the two-month hiatus referenced at the head of the last posting. It remains relevant and current all the same.

Those limits are the thrust of Yukon’s Bill 6, an Act to Amend the Corrections Act 2009, which was in committee after passing first and second reading in the territory’s legislature when the Globe article was published. Since then it passed third reading and came into force on November 27.

Under the Act, an inmate cannot be held in segregation who is pregnant or has recently given birth, who is suicidal or chronically self-harming, has a mental disorder or intellectual disability, requires medical observation, or has a mobility impairment. All exemptions have prescribed legislated conditions.

Bill 6 declares an inmate cannot be held in segregation for more than 15 days to an annual 60-day limit. And, an inmate who is released from segregation after 15 days cannot be placed in segregation again until a period of five days has expired since the end of the last 15-day segregation period. Those limits can be exceeded only with the consent of an independent arbitrator, who could not be a government employee.

The legislation is the first in Canada to comply with the United Nations General Assembly’s 2015 adoption of what are now called the Mandela Rules, which asks all jurisdictions to limit solitary confinement to 15 days. As such, this bill doesn’t address questions around segregation placements for less than 15 days, except that 60-day annual maximums apply.

Yukon Director of Corrections Andrea Monteiro wanted to be pro-active in dealing with the issue and make the territory a leader in segregation reform. Yukon has only one territorial prison, the Whitehorse Correctional Centre with a problematic recent history with solitary confinement, but the government is advantaged in its reform efforts over other jurisdictions like Ontario which has 25 provincial jails.

Canada’s prison industry is watching the impact of this legislation. The Courts have been very clear with its position on segregation practices and any federal or provincial government that ignores recent decisions will face and is contending with further litigation. “The hard 15-day cap has been met with stiff resistance from current and former prison staff, who say it jeopardizes the safety of employees and inmates,” said Patrick White in the Globe and Mail.

Former federal warden Glen Brown, now a criminology instructor at Simon Fraser University, described Yukon Bill 6 as “terse and perfunctory” in attempting to comply with the Mandela Rules, claiming the complexity and seriousness of circumstances can’t be effectively managed under its provisions.

On the other hand, Howard Sapers, a former federal correctional investigator who advised Yukon on this bill, says that its “far-reaching approach” is to be admired. “My experience in the federal sphere, sadly, is that the government was quite content to be re-active, to not get ahead of these things. It’s nice to see a jurisdiction that wants to be pro-active,” he said.

Aging in prison…..

…..not hard to explain.

Editor’s note: A broken leg and rehabilitation challenges led to six weeks in hospital, with follow-up therapies at home. At last, we are at work again.

Earlier this month, Correctional Investigator Ivan Zinger released “Aging and Dying in Prison: An Investigation into the Experiences of Older Individuals in Federal Custody.” From the introduction, “In so far as older individuals in federal custody are concerned, this joint investigation by the Office of the Correctional Investigator and the Canadian Human Rights Commission finds a general failure on the part of the Correctional Service of Canada to meet the fundamental purposes of the Corrections and Conditional Release Act:  safe and humane custody and assisting in the rehabilitation and reintegration of offenders into the community.”

On CBC Radio One’s “The Sunday Edition” this morning, host Michael Enright took up the question of why there is so much difficulty in releasing older and chronically ill inmates to the community. After all, as Mr. Zinger also wrote in his report, “Prisons were never intended to be nursing homes, hospices, or long-term care facilities.” Mr. Enright couldn’t answer the question, but we offered one explanation in a letter today.

Michael Enright,
The Sunday Edition, c/o CBC Radio One,
Toronto, ON M5W 1E6

Re: Aging prison inmates

Dear Mr. Enright:

A portion of today’s Sunday Edition focused on Ivan Zinger’s “Aging & Dying in Prison” report released this month, and the challenges aging prisoners have in securing compassionate release.

Take it from this long, long, long-time prison activist and prisoners’ advocate that Canada does not have a correctional system. It has a prison industry.

From that perspective, the status quo is easily explained.

Yours truly,

Charles H. Klassen

It’s good to be back!

Bill Blair in charge……

……OR IS HE?

The Honourable William Sterling “Bill” Blair spent almost forty years with Toronto’s police service, the last ten as Chief. After retiring, he was elected to Parliament in 2015, appointed as a parliamentary secretary to the Minister of Justice, and then the head of a task force to develop a plan for the legalization of cannabis. Last year, he was named Minister of Border Security and Organized Crime Reduction, and in November of this year, Minister of Public Safety & Emergency Preparedness. He’s now in charge of our federal prisons.

Bill Blair will need help, and a December 5th letter offered some advice.

Dear Minister Blair:

A few years ago, as Toronto’s Chief of Police, you made one of many visits to the CBC Radio Metro Morning studio. I was on my first cup of tea that particular morning, going through a newspaper, and with half an ear tuned to your conversation with program host Matt Galloway.

The subject was police response to city crime, its causes and potential fixes. At one point you said, and I think I’ve nailed this with reasonable accuracy, “We need to do more with these people when we have them in custody to help them turn their lives around.” That made me sit up and take notice…not something I expected to hear from law enforcement.

Lee Chapelle of Canadian Prison Consulting estimates that 80% of prison inmates in our federal system are salvageable. I’ve been an activist around prison issues since the 1960s, but it’s been a principal interest for the last 30 years. I know that hundreds of federal inmates, maybe more, want help. They want programming help, they want help with their emotional well-being and mental health, they want help reintegrating.

They’re not getting it.

You oversee the ‘big house’ now. You can “help them turn their lives around.” Don’t let Correctional Service of Canada snow you with reams of budget statistics, policy directives and institutional reports. It’s just paper. Don’t let anyone at CSC tell you all’s well. It’s not.

Yours truly…..

Yes, Minister, you have work to do…..