A path to prisoners’ rights

The British Columbia Civil Liberties Association (BCCLA) has had a long history of advocating for the rights of prisoners. This issue remains one of our top priorities. Last year, we intervened at the Supreme Court of Canada in John Howard Society of Saskatchewan v Saskatchewan (JHS), a case about the need for procedural protections in prison disciplinary hearings.

Days before JHS was heard in October 2024, I attended a conference put on by the Canadian Prison Lawyers Association (CPLA). Before joining BCCLA, I worked at Prisoners’ Legal Services for over seven years, providing legal services to incarcerated individuals throughout B.C. The conference was a welcome chance to reconnect with issues I care deeply about and to see some familiar faces.

One of those faces belonged to Prof. Michael Jackson, KC, one of the first lawyers to practice prison law in Canada, and one of the first professors to teach it as well. Prof. Jackson has been at the forefront of the fight for prisoners’ rights for decades. And yet, at the opening reception, he wondered aloud whether any progress has really been made. He talked about the many court victories we’ve seen in Aboriginal law (another field where he is a leading expert), and he asked why prison law litigation has led to so much more limited success.

I believe at least part of the answer lies in how many judges in this country think about prisoners. Much like in society at large, there is a clear bias against prisoners in our courts. This often prevents judges from seeing incarcerated individuals as fully human, deserving of the human rights the rest of us sometimes take for granted. 

Bias against prisoners

In 1985, the Federal Court of Appeal released its decision in Howard v Stony Mountain, which guarantees the right to counsel in prison disciplinary hearings.

Despite representing a win for prisoners’ rights, Howard has another, less salutary legacy. The decision included the following passage about the nature of prisons:

“Penitentiaries are not nice places for nice people... Reformation fortunately remains an aspiration of the prison system, but the prevalent environment is sadly reminiscent of Hobbes' primitive state of nature before the advent of the Leviathan, where human life was said to be solitary, poor, nasty, brutish and short.”

Government lawyers love to cite this paragraph when trying to justify the abusive behaviour of prison officials. They usually leave out the rest of the decision, which discusses the need to protect the rights of prisoners despite these challenging circumstances. This passage once again reared its ugly head in the trial decision for JHS.

While watching the appeal of that decision at the SCC, I was struck by some of the comments from the bench. One justice noted that the prison disciplinary process was necessary to prevent institutions from descending into the “law of the jungle.” This allusion to people in prison as something of the wild is extremely troubling, especially when we realize that Indigenous Peoples represent a staggering 75 per cent of the admissions to custody in Saskatchewan.

There was also much discussion about the lack of evidence put forward regarding the nature of segregation. The challengers relied on caselaw from other jurisdictions on this issue and were repeatedly questioned about whether it could be assumed that segregation in Saskatchewan was similarly harmful. In contrast to the “brutish” nature of prisoners, which some members of the Court took for granted, the brutal nature of segregation must be proven again and again.

Thankfully, this line of reasoning didn’t carry the day. The majority of the Court struck down the challenged law, holding that the beyond a reasonable doubt standard must be used in disciplinary hearings to comply with section 11(d) of the Charter.

BCCLA intervened to argue that section 7 of the Charter could require procedural protections equal to those found in criminal trials. Although the case was decided under section 11, the majority noted that section 7 would have led to the same conclusion. This win for civil liberties could have significant implications for other areas of administrative law, such as mental health detention and civil forfeiture, which also have serious impacts on liberty. This outcome was possible because the majority looked beyond the prisoner label and took into account the real human impact of disciplinary sanctions.

Prisoners are human beings

This brings me back to Prof. Jackson’s question. In prison advocacy, we tend to focus on how prisoners’ rights are being violated. We fixate on the horrors happening behind prison walls, perhaps because they are so awful they are hard for others to believe. In some ways, this may reinforce the idea that these conditions are simply the natural state of prison life.

By contrast, Aboriginal law, while of course addressing rights violations, also focuses on the recognition of Indigenous Peoples as people, with histories, cultures, and social orders—all of which must be acknowledged and respected.

The highlight of the CPLA conference was hearing from people with lived experience. Yes, they spoke about prison and parole. But they also talked about their lives more broadly, including their relationships with their families, who they were before their imprisonment and who they are now. They told stories and jokes. They spoke about their hopes for their future lives in the community. They also challenged the prison lawyers in the room to seek out the expertise of people directly impacted by the carceral system and to build real relationships with them.

So, I’m passing on this call to action to find ways to see those impacted by the criminal justice system in a new light. To that end, I’d like to share a video prepared by the Collaborating Centre for Prison Health Education at the University of British Columbia, aptly titled Shifting Focus. My hope is that once we see the true humanity in prisoners, it will become impossible to justify the intolerable inhumanity of our prisons.