Crime & punishment

By Leo Singer July - August 2012

Prisoners’ rights advocates fought a long, hard battle to modernize correctional law. Is the pendulum swinging back from rehabilitation to punishment?

Crime & punishment Photo of Michael Jackson by Venturi+Karpa

Back in the early 1970s, at a time when prison riots dominated the news in Canada, the watchtower guards would train their gun sights on Michael Jackson as he walked through the front gates up to the segregation unit to visit inmates at B.C. Penitentiary. As the UBC law professor was signing out to leave the prison, corrections staff would return to him his photo ID with scorch marks from cigarette burns. To them, Jackson was an outsider, a do-gooder overcome by some foolish notion that prisoners have rights. 

Much of the culture inside correctional services has changed since Jackson began advocating for prisoners’ rights four decades ago. Today, disciplinary hearings are conducted more transparently; there is a grievance process available to inmates; and though the rates of incarceration are higher for Aboriginals, there are support programs in place for First Nations prisoners.  

But backed by an enduring lack of sympathy among the public for offenders, the federal government has decided it’s time for a new round of correctional reforms inspired by its tough-on-crime ethos. As the ideological pendulum swings back, Jackson worries that the same old battles are being re-fought. 

The 1970s riots and their aftermath 
Jackson’s advocacy for prisoners’ rights began in 1970 when, shortly after securing a position as assistant professor of law at UBC, he was handed a dusty bundle of handwritten letters by the faculty administrator. The letters were from Canadian prison inmates, written to nobody in particular — they were all addressed simply to the Faculty of Law — mailed into an academic black hole. The administrator suggested that since no one else was interested, the new recruit might like to read them. 

The eloquence of one letter in particular struck Jackson. The author, an inmate of the B.C. Penitentiary, described his solitary confinement for over two years in a small concrete cell, with little or no human contact, save an occasional word ex­changed with a sympathetic prison guard. The young British-born lawyer had planned on a career like any other in criminal law, but the letters inspired a change of direction. He wondered whether the man truly deserved this fate, and whether one inmate’s story was typical of the Canadian prison experience. 

And so Jackson began his own research, exploring the reality of life behind the walls of Canadian prisons — with dedication and doggedness he would spend the next 40 years devoted to the cause of promoting justice and human rights within the correctional system.  

As Jackson charted this new course for himself, a series of riots and hostage-takings shattered any remaining illusions he had once held about Canada’s penal institutions.

In April 1971, most famously, 500 prisoners at Kingston Penitentiary took over the central six-storey dome, viciously tortured 14 inmates considered to be ‘undesirables’ — informants and sex offenders — and unfurled large banners that demanded human rights and better living conditions. During the four-day siege, prisoners took five staff hostage and wreaked havoc on their cell blocks. Two inmates were left dead. 

Over the next few years, inmate unrest spread to other institutions. In 1976, a standoff at B.C. Penitentiary ended with an armed assault by the police, and one dead hostage. Jackson himself was there to negotiate the release of hostages. “I saw the explosive power of 500 men who were brutalized by their experience. They destroyed a 100-year-old prison,” he recalls. “They broke through the interior walls… They didn’t have weapons; they had the power of rage.” 

Another disturbance erupted at Laval Institution in Quebec, and then another riot at Millhaven Institution, in Bath, ON.,  the following week. This period would go down in history as the most violent in Canadian prison history, with 69 major incidents. 

In 1974, Jackson had finished his first major study, Justice Behind the Walls, the first serious empirical analysis of prison conditions in Canada. He found that the prison disciplinary hearings, chaired by the prison wardens and their deputies, were highly dysfunctional. Hearsay was presented as hard evidence, and the prisoner was generally presumed guilty from the start. In the eyes of the inmates, the hearings were nothing more than a kangaroo court — and they had no respect for the findings, or the penalties that were meted out.

Jackson came to believe that the riots were the inevitable result of an unjust system, in which inmates were subjected to the arbitrary whims of their jailors. “The rule of law was absent in Canadian prisons”, he says. “Wardens were the modern equivalent of Lords of the Manor, governing their own fiefdoms, in which they were the law.” Courts rarely intervened in correctional issues; back in the early 1970s, there was just one reported decision in which a court had reviewed an administrative prison decision. Otherwise the rules and regulations of prison discipline flew below the radar, considered to be an administrative matter rather than a legal one. Thus inmates were stripped of any meaningful legal status, and turned into “slaves of the state”, to use a term coined in the U.S. The system was ripe for abuse.

Jackson found administrative segregation — or solitary confinement — to be usually excessive and unjust. Guards would beat prisoners for minor infractions of the prison rules. Inmates suffered arbitrary searches, unsanitary conditions, and countless other small humiliations and petty cruelties. Rehabilitation programs and opportunities for education were lacklustre or non-existent. Some prisons survived in a perpetual state of tension and fear, with inmates and staff locked into a cycle of violence and recrimination; it was no surprise to Jackson that the inmates were tearing apart their cell blocks.

"This is the first government which has actually played politics with the correctional system — and so far they’re getting away with it." Michael Jackson Faculty of Law, University of British Columbia, Vancouver

In 1977, after riots, hostage-takings and murders had became routine, the all-party non-partisan Parliamentary Subcommittee on the Penitentiary System in Canada was formed. A chorus of progressive voices — lawyers, NGOs, and prisoners’ rights advocates such as the John Howard and Elizabeth Fry Societies — argued for reform. In the stark conclusion of the subcommittee’s seminal report, the chairman, Mark MacGuigan, stated: “A crisis exists in the Canadian penitentiary system. It can be met only by the immediate implementation of large-scale reforms.” 

What followed was a determined effort to modernize correctional law. New legislation would articulate the rights and responsibilities of prisoners and the limits of the powers of prison wardens and staff.  

The courts also took an interest. In 1979, the Supreme Court of Canada ruled in Martineau v. Matsqui Institution Inmate Disciplinary Bd. on the unlawful mistreatment of inmates by accepting that citizen’s rights also apply to inmates behind bars. The courts later affirmed this principle under the Canadian Charter of Rights and Freedoms, which guarantees that prisoners do not lose the protection of basic human rights. Inmates are protected — like all citizens — from unreasonable search and seizure, and the state may not subject them to cruel and unusual punishment. The result, Jackson says, is far from perfect — but it’s “a contemporary system of corrections that really embodies the spirit of the Charter.” 

Howard Sapers, the current Correctional Inves­tiga­tor of Canada and ombudsman for federal offenders, welcomes the fact that human rights are now central to a more humane prison system. “Rights that are afforded all Canadians don’t stop at the prison gate,” he says. “The Su­preme Court of Canada has referred to inmates as citizens, and as citizens they retain rights.” 

Finally, 15 years after MacGuigan’s report to Par­lia­­ment, the 1992 Correc­tions and Conditional Re­lease Act (CCRA) was signed into law, under Brian Mulroney’s Conservative government. The legislation had support across the political spectrum, even though prison reform has never been a vote-winner. A consensus was built that embraced a culture of respect and human rights within the correctional system. But that was then. Now, Jackson says, “for the first time, the basic contours of that [consensus] are being challenged.”

Haven’t we been here before?
In 2007, the Harper government appointed a task force to review corrections operations and the law. In its report, A Roadmap to Strengthening Public Safety, it concluded that prison culture was heading in the wrong direction, having elevated the rights of offenders over those of the victims. And, according to the report, there wasn’t enough emphasis placed on public safety. Time to put on the brakes, the task force recommended, and go back to basics.

Jackson’s first reaction on reading the report was disbelief. “I thought it was a joke. I assumed anyone who read it who has any sort of memory of what we’ve been through in the past 30 years would look at it and say this is a parody of reform,” he says. “And it was to my astonishment that within months of it coming out, it was adopted and funded as if it was the Holy Grail.” 

According to Jackson, the present Conservative government is throwing away several decades of thoughtful, hard-won reform. The CCRA was based on the premise that the prison sentence itself is the punishment, not for punishment. Rather, it is the job of the correctional system to rehabilitate offenders in a safe environment and turn them into functional, law-abiding members of society. “Commissioners and ministers understood that it was always going to be difficult and they had to maintain focus,” he says. “And it wasn’t a question of winning political points. This is the first government which has actually played politics with the correctional system — and so far they’re getting away with it.”

Some of the government’s changes are partly born out of a desire to save money; for example inmates will no longer receive incentives for the jobs taken at Corcan, a CSC prison-based company that produces office furniture for government bureaucrats. A mentoring program for recently released offenders, LifeLine, is being cut completely. And prisoners will have to pay more for their phone calls, and pay more for ‘room and board’ out of their earnings — a move that Public Safety Minister Vic Toews says will save the taxpayer $10-million a year out of a $3-billion budget. 

Other legislative revisions are more fundamental. Hidden deep in the omnibus bill C-38 is a provision that allows parole officers to suspend parole if an offender has breached an abstinence clause, or is late for a curfew, and send him back to prison — adding a year or more onto his time in prison — without the right to attend a post-suspension hearing. “There are cases that clearly say that under the Charter you have a right to a hearing,” says Jackson. “I don’t think they even realize that’s what they’ve done.” 

Some of the changes are semantic, but may reflect an underlying policy shift. Under the CCRA, prison wardens and their officers are directed to use the “least restrictive measure consistent with the protection of the public, staff members and offenders” in their correctional practices: “It’s a well regarded legal test,” says Sapers. The recently adopted Safe Streets and Communities Act changes the wording to “limited only to what is necessary and proportionate.” A subtle change, says Sapers, but “Parliament has chosen to change the tone of the legislation — with an eye to changing the way corrections is conducted.”  

So is Canada returning to a colder and harsher correctional regime?

Jessica Slack, spokesperson for Public Safety Canada, says that C-10 does not affect CSC’s mandate to rehabilitate offenders. “While the principle of “least restrictive measures” is being modernized in the bill, the fundamental objective of the corrections and conditional release system remains the same.” 

The Canadian Bar Association, however, has argued forcefully against the government’s proposed changes. Their submission on Bill C-10 emphasizes that correctional agencies represent the most coercive arm of the state. “They administer the most severe sanction known to Canadian society — the deprivation of liberty. The unfortunate reality is that this exercise is situated in the context of a documented history of abuse of human rights in prisons, and the judicially recognized resistance of CSC to incorporate a culture of respect for rights.”


Dealing with reality
Meanwhile, correctional officers face a number of practical, intractable problems — all of which have a powerful effect on the daily routine within prisons. To begin with, there are growing numbers of mentally ill inmates, and the correctional system simply cannot cope. (An estimated 25 per cent of all federal inmates show signs of mental health problems — and one in ten have an acute psychiatric condition.) 

Drug use is endemic, and on the rise, despite attempts to curb the influx of drugs into prisons. Gang activity is also increasing, especially amongst the Aboriginal prison population — a group that is chronically over-represented in Canadian penitentiaries. We are also seeing increased levels of general prison violence; Sapers points out that there is “more use of force than ever before — an explosion in the use of pepper spray, for example; more lockdowns, and more exceptional searches.” 

But the greatest threat to human rights in prisons is overcrowding. And federal penitentiaries are bursting at the seams. Double-bunking rates are rising fast. Around 20 per cent of inmates share a cell. Sapers warns that over the next few years that figure could reach 30 per cent. “International standards are based on single cell accommodation,” he says. “Canada’s federal policy is based on single cell accommodation. Yet we are seeing the Correctional Service grant blanket exemptions to wardens across the country to not comply with that policy — and double-bunk in increasing numbers.” Wardens are even seeking exemptions for double-bunking in segregation — two men in a cell that’s less than five square metres. 

What’s more, says Sapers, double-bunking places pressure on all of the other programs and services within an institution — “health services, recreation services, chaplaincy services, dietary services, therapeutic services, program services, parole services.” Even prison staff say double-bunking is an intrinsically dangerous practice. 

“There’s no question that it increases inmate-on-inmate violence, but it also increases the risk when correctional officers open the cell door,” says Lyle Stewart of the Union of Canadian Correctional Officers. “Often times that’s when an inmate will choose to attack an officer, but now you've got two inmates in there.” 

A large-scale building program is under way that will expand the number of cells by 1,700, when prison closures are taken into account, which ought to ease the pressure to some degree. According to Public Safety Canada, the increase in the federal offender population has not materialized as originally projected, after the recent introduction of sentencing changes such as increased numbers of mandatory minimum sentences and the reduction of credit for time served pre-trial. Slack adds: “CSC is implementing a multi-faceted approach, ensuring full use of all available beds across the country, the use of temporary accommodation measures such as double-bunking where appropriate, and expanding the delivery of correctional, education and work programs and supervision in the community. At the same time, CSC is working diligently to ensure offenders participate in their correctional plans and are well prepared for safe, gradual and supervised return to communities.”

We have yet to see the full impact of the new law, says Sapers: “It will begin to play out as provincial court systems develop their capacity,” he says, adding that, as new convicts come into the system, double-bunking — and occasionally, even triple-bunking — may become the norm rather than the exception. 

At a McGill University conference in March on the future of criminal law, Professor Jackson recalled another story dating back some 10 years, when he met with some young correctional officers to research one of his books. One of them told him that, according to the older head guards, Jackson had changed since the 1970s. “How so?” asked Jackson. The young officer answered, “Well you used to be a real radical and now they say you’re pretty moderate and reasonable.” Says Jackson: “I realized then that a lot of what I was advocating in those days had become accepted as the appropriate way to run prisons. Respect for human rights was the official government line.”

He now fears all that is changing with the government line hardening. And while it might be a stretch to say that Jackson’s reputation has come full circle, recent events certainly suggest that the professor’s activist days are far from over. 

Leo Singer is a writer based in Montreal.
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