Canadian Corrections and the Public Square of the 21st century.

Beginning in 2003 the Correctional Service of Canada (“CSC”) imposed huge restrictions on prisoners’ access to, and use of, digital media.

Since then, in the face of metamorphosis in the very nature of community in the digital age, CSC has doubled down, increasingly denying prisoners access to a growing list of communication staples that are enjoyed every day by most citizens.

The effect of this on prisoners’ meagre financial resources, on their access to justice, on their relations with families and on their basic human rights has been significant , and risks becoming even worse.

A. 2003  A Kryptic Crisis 

The initial thrust of  this war on digital tools was CSC ‘s approach to inmate computers, Prisoners had always been allowed to purchase computers for in-cell use, subject to security inspection and monitoring to prevent their misuse for surreptitious communications and crime – e.g. bringing in drugs.

Then, an abrupt change.

In 2003 CSC security staff convinced the Service to ban any digital mechanism that prisoners could feasibly use to communicate with persons outside institutions. This was purportedly to combat the planning and execution of crimes, especially bringing drugs into penitentiaries, which officials felt was a growing risk for staff, inmates and others.

The 2004-2005 Annual Report of th Correctional Investigator (“the CI”), the federal prisoners’ ombudsman stated:

Last year, based upon its review of reports on a
series of incidents involving misuse of in-cell
computers, CSC decided to prohibit the further
introduction of computers to individual cells. The
Service recognized the importance of inmate access
to computers, however, and stated its intention to
make computers in designated areas outside cells
available for inmate use. These areas would be
supervised and would make use of equipment that
was secure from misuse.
Inmates, this Office and a number of community
stakeholders voiced concerns about the necessity for
the measures taken and the serious impact of
reducing access to computers on offender programs,
reintegration and personal uses (e.g. litigation or
recreation). Providing sufficient outside-of-cell
computers has proved extremely problematic for
CSC. Far fewer computers are currently available
than would be necessary for adequate inmate
access.

In 2004 CSC had agreed to establish a working group to deal with the issues arising from the computer ban. The mandate of this group was: to provide tangible, early
solutions that will permit broad access to computers
for all inmates in a safe and secure fashion.

The CI recommended:

  • the solutions proposed by the working group be prioritized for implementation, so that the matter may be substantially resolved in the current fiscal year
  • these solutions include providing effective access to all inmates who wish to acquire computer skills and to benefit from the information technology of the 21st century

The CSC response was:

CSC recognizes the benefits that computer access can bring to offender educational and work skills, and will continue to manage, within its resource base, the risks that computer access can pose.

CSC has worked very closely and productively with a broad range of stakeholders and experts in Information Technology on this issue since 2004, and has an established minimum of four computers in each institution and a minimum ratio of one computer for every 50 inmates.

CSC is currently conducting a study to determine whether the ratio of computers to inmates needs to be adjusted, and to establish a Protocol for Inmate Access to CSC-owned computers. The study will also include a Threat and Risk Assessment of in-cell use of computers.

As the C.I. reported, in the course of  the working group’s efforts there had been considerable opposition to CSC’s policy from inmate advocates, the CI and  the prison bar.

They argued, for example:

a) that use of computers and other electronic technologies were important skills of life in the community, which released prisoners would have to acquire in order to succeed, economically and socially.

b) that digital tools provided inmates important educational pathways, both formal learning and for information to support everyday living.

c) that computers and the internet were a vital support to prisoners who were representing themselves before the Courts on appeals and other matters

d) that  internet applications and cellphone communication could permit robust and inexpensive communication with families and other community contacts

e) that the Corrections and Conditional Release Act provides that prisoners should lose only such rights as was necessary for effectiv operation of institutions.

All through this discussion, and ever since, CSC’s arguments about the risk of computers have referred to techniques that prisoners could use to convert devices into communication tools.

When asked for examples of such subversive processes and for examples of abuse CSC almost always responded that they could not reveal this information, for security reasons! Information disclosed, they said, would give potential transgressors the capacity to broaden security breaches and to thnk of new. improved means to defeat security.

Bottomline: Not only was CSC relieved of independent review of its prohibitions, it was also absolved of having to explain why responses other than blanket prohibtions were necessary. No prisoners or advocates could make informed recommendations for alternative, reasonable approaches to combatting computer misuse

B. Spit and Scotch-Tape

In the event, the working group faded away ; stakeholder arguments basically went for nought and since 2003, no functional or sufficient access to institutional computers has been provided.

Prisoners were indeed denied purchase of new computers. They could keep the ones they had purchased prior to 2003 as long as they could keep them functioning. This has resulted in a shrinking supply of increasingly obsolete devices held together by the spit- and- scotch tape creativity of some prisoners.

As to institutionally-provided computers,  prisoners have consistently complained of restricted scheduling of computer access  and of inadequate software and applications for educational, legal or other purposes.

C. Doubling down

Since the events of 2003-2004  there have been increasingly widely- based prohibitions on all kinds of technologies that  might be used for stealth communications. For example:

  • All electronic devices and parts thereof that could feasibly be used to conceal or communicate information were banned and devises were strictly inspected for this purpose
  • Email has remained a complete non-starter
  • Access to the internet has been effectively forbidden except in very limited circumsances
  • To prevent misuse of phones, a very expensive system (for offenders) was installed to channel calls, at high rates, through exclusive, interceptable pathways
  • Cellphones, for inmates and ther visitors, were prohibited, as were blue tooth connectors and computer chips and even most electronic games.

CSC officials have refused almost all individualized approaches for dealing with the problem, such as inspeciting and  removing communication features of computers at time of admission to the instiution or individualized sanctions on inmates who broke the rules.

They argue that technology improves too rapidly to keep up with new app licationsand that they lack resources to deal with one- off cases of abuse.

In general they have said that they lack the training to keep up with the cybernetic wave – ergo, complete prohibition is the only option.

When asked to outline their concerns in order to permit an informed discussion they have declined to do so, saying that such disclosure could itself weaken security measures.

D. The Back to the Future effect

In the 15 years since the prohibitions, new developments in digital communication have done nothing to resolve the problem. Au contraire, in fact.

As recent “smart” devices have entered the market, so has a proliferation of “bluetooth”-style applications.

For example, TV and stereo remotes and internal systems contain many features that could feasibly be used to communicate surreptitiously.

To respond to these new issues, CSC indicates it is considering permitting purchase of devices provided that software is removed that would allow improper access to information .

The problem here is that CSC would cause prisoners to pay for the necessary “surgery” and to pay the full, initial retail price for the resulting, partially- disabled products.

So, prisoners who have been inside for all or some of the past 15 years have found themselves effectively deprived of the commnications tools of everyday life in the community.

Long- term offenders leaving the system these days report that the challenges of adjusting to the digital age are akin to Marty McFly’s time machine experiences.

Absent the skills and knowledge that ordinary folks have acquired, released prisoners have huge problems acquiring employment and simply functioning inter-personally

E. The Digital Community and the Charter

As inmate rights to communication have been surpressed the legal rights associated with communication have concurrently been expanding.

Communications via social media has become a major facet of expression, and this has significantly altered the meaning of “assembly”, ” association” and “speech”

On freedom of assembly, see this excerpt from Wikipedia:  [https://en.wikipedia.org/wiki/Right_to_Internet_access#Right_to_freedom_of_speech]

Traditionally the right to freedom of assembly covered peaceful gatherings such as protests in physical public spaces such as town squares but as technology progresses we are seeing a revolution in the way people meet and interact. U.S. Secretary of State Hillary Rodham Clinton has stated, “cyber space, after all, is the public square of the 21st century”.[28] Today we are seeing an increase in the relevance of internet and the right to freedom of assembly. Even signing an online petition has been known to cause arrests and the internet has become a useful tool in the organization of protest movements and demonstrations.[28]

It is widely recognized that without the contribution of the Internet and social media networks such as Twitter and Facebook recent political events such as the Arab Spring could not have occurred, or at least not to the same extent.[29][30] The role these mediums had were to allow the communication and mass dispatch of protests and other movements.

Internet access was also pivotal in the Occupy movement. A collective of journalists involved in the movement stated in regards to access to internet, “[a]ccess to open communications platforms is critical for the human species evolution and survival”.

As to expression, the United Nations recognised the effects of the digital age on human rights in a  2011 Rapporteur Report. http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf  :

Summary:

This report explores key trends and challenges to the right of all individuals to seek,
receive and impart information and ideas of all kinds through the Internet. The Special
Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole. 

Based on such commentary – admittedly there doesn’t seem to be much developed jurisprudence in Canada- I believe that the digital age may lend expanded meaning to    s. 2 of our Canadian Charter of Rights and Freedoms:

 2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

That teenager sitting in the corner with his/her cellphone is not necessarily alone. He/she may well be communicating with, indeed meeting with, a host of others in the same demographic – place, age, interests, fears, hopes.

Merriam-Webster defines “community” as:

a unified body of individuals: such as
  • a the people with common interests living in a particular area; broadly the area itself 
    • the problems of a large community
    • b a group of people with a common characteristic or interest living together within a larger society 
    • community of retired persons

     a monastic community

c a body of persons of common and especially professional interests scattered through a larger society 

  • the academic community
  •  the scientific community

d a body of persons or nations having a common history or common social, economic, and political interests 

  • the international community
e a group linked by a common policy
f an interacting population of various kinds of individuals (such as species) in a common location

 

Community, then, denotes a group or association with some kind of common identity or interest.

If so, surely the internet and other forms of digital communication vastly broaden the constituents  of  communities and make digitals tools an essential gateway to them.

More and more we speak to one another; we meet with one another and we associate as groups, in major part because digital tools permit us to do so. Should we be denied these tools we will be isolated from one another and denied the benefits of cognitive and affectual sharing that others enjoy as a matter of course.

Accordingly, prisoners, who are effectively  denied access to s.2 Charter rights because of digital deprivation can make a case for breach of these rights before the Courts.

Armed with appropriate expert testimony, it should not be exremely difficult to convince the Courts of the meaning of community and of its associated rights..

The downside will be s.1 of the Charter:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In my view, the “demonstrable justification” involved in prisoner communication cases will relate to valid CSC rationales for prohibiting or restricting any form of electronic communication, from the wide range identified above, to which people in the community have normal access.

Two points,here.

First, “restriction’ will involve more than some physical curtailment of a device’s communications capacity. It will also include barriers to the use of devices such as:

a) unfair, excessive pricing,

b) unreasonable limiting of the time and location of uses and

c) restriction of what items may be pruchased, or where

Second, CSC will have to show why reasonable alternatives to prohibition/restriction are not possible , including why security risk could not be addressed on a case-by-case basis – through, reasonable, proportionate disciplinary sanctions or administrative restriction in response to breahces of rules.

F. The Envelope

In litigation, the paradigm will probably be that the prisoner will claim an unjustified restriction on digital access and  the breach of a right will be upheld, but the Respondent will claim a justified s.1 restriction on the right  and will decline to say why, for security reasons.

In these circumstances the accepted procedure is normally for CSC to produce all the confidential information on which it relies for the sole use of the Court, without any input from the prisoner. The court is to decide if the information assists CSC’s case and if it was properly withheld from the prisoner for security or other reasons.

The problem for offenders with this approach is that there may be knowledge and expertise needed to assess information that the Court will not possess.

Moreover, the right of all parties to make submissions on evidence is often of great assitance to the Court in analysing information.

It is submitted that this would be all the more the case in the highly complex area of security investigatons in a digital communications systems context.

One solution would be for the Court to make a habit of not simply reading confidential materials but also conducting its own investigations and interogations where necessary.

Even better might be an “amicus curiae” (“frienfd of the court”) approach., where an independent officer, would be chosen by the Court on advice of the prisoner and CSC. This amicus would have in-depth knowledge of digital devices and of prison security issue ( or at least access to these).

This amicus could interview whomever he/she wished and would have extensive access to CSC’s and the prisoner’s records.

The sole limitation would be that the amicus would not be able to reveal confidential information to the prisoner without the Court’s permission.

Having conductedf his/her review the amicus would report to the Court with respect to;

.a) the confidential information that should be revealed

b) the justification for breach of the Charter that the concelaed information

demonstratesle

c) possible means of resolving the issues short of the restrictions imposed by CSC

d) other suggetions of the parties or directions of the Court

Next Steps

A number of prisoners have contacted me on this issue. They are living with obsolescent, barely -functional in-cell computers. they are denied access to reasonably- priced, conveniently-obtained communications (e.g. e-mail) and devices (e.g. computers).

I intend to comence litigation on this in the near future.

Readers’comments would be appreciated.

 

 

 

 

 

 

 

 

http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf

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Time to stop cutting bait

Below is the May 14, 2018 press release of the Canadian Civil Liberties Association concerning the mystifying lack of progress by Government on reforms to administrative segregation that were signalled in two Judgments.  These declared that the current system of “solitary” in Canada violates the Charter of Rights and places prisoners at peril.

The current situation is not only bad law, it is just plain bad corrections.

In my view, the position of the Government is disingenuous, to say the least-  seeking “clarification” of the previous Judgments thorugh the appeal process, rather than sitting down and fulfilling its legislative role.

Irrespective of Court of Appeal conclusions, it must be clear that the need for effective, empirical and time-limited segregation placements is patent from a policy perspective.

Let’s get on with it.

OTTAWA, Algonquin Anishnaabeg Territory (May 14 2018) – Rights groups who have won court challenges against indefinite solitary confinement were in Ottawa this morning to urge the federal government to abide by the courts’ rulings. The Canadian Civil Liberties Association (CCLA), BC Civil Liberties Association (BCCLA) and the John Howard Society of Canada (JHSC) won constitutional challenges against indefinite solitary confinement in decisions by the Ontario and British Columbia courts in late 2017 and early 2018. The groups stated that instead of implementing its election promise to end indefinite solitary confinement in federal prisons, the Trudeau government has decided to fight to quash the most recent court ruling.

“Our message is clear. The government must end the torture of indefinite solitary confinement. The courts have laid out a path and the government should stop fighting and obey the court orders,” said Michael Bryant, executive director of the CCLA. “Not one but two courts have found the law unconstitutional, noting the danger and harm in this horrendous practice.”

Courts in Ontario and British Columbia concluded that Canada’s existing law on solitary confinement violates s. 7 of the Charter of Rights and Freedoms as it places prisoners at increased risk of self-harm and suicide and causes psychological and physical harm. The B.C. Court further held that that the laws are unconstitutional because they discriminate against the mentally ill and disabled, and against Indigenous prisoners.  Each court suspended the effect of its judgment for a year to give Parliament time to comply.

Catherine Latimer, Executive Director of the John Howard Society of Canada, stated: “Some prisoners are spending months and years in small cells, deprived of meaningful human contact. The evidence in our case showed that this isolation causes people severe physical and psychological harm, and can lead them to take their own lives. The BC Supreme Court ruled that the cruelty of indefinite solitary confinement has no place in our prisons, and the government should obey the law, period.”

In filing its appeal of the BC court decision, the federal government stated that it was doing so in order to have “juridical clarity” between the two decisions. Josh Paterson, Executive Director of the BC Civil Liberties Association, took issue with that statement: “There is no lack of clarity and no conflict between the BC and Ontario rulings. Both Courts struck down the existing laws and nothing is preventing the government from complying. The government is choosing to fight.”

The organizations pointed out that they wrote to the government following the court decisions urging the government to end the court battles and to fix the system. The government declined to meet to discuss the issue, instead responding by appealing the BC court decision.

-30-

Pay Cuts Update

A number of prisoners across Canada have been asking what happened in the Pay Cuts case ( 2013 measures deducting 30% from already-meagre prison pay and abolishing Corcan incentive pay).

Now that I’ve been able to access my site again after technical problems, I can say that a number of the Applicants in the initial case have appealed the decision to deny the application. See   –   https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/305567/index.do

The Notice of Appeal has been issued and the next step, at the end of this month, will be to file Appeal Book contents.

Factums will be filed by late September and a hearing date will be established , hopefully for late in 2018.

Bill C-56 on administrative segregation – far short of the mark

Bill C-56, proposing changes to the Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”) applies somewhat independent, but probably ineffective, review to the administrative segregation process.

See full text of the Bill at http://www.parl.ca/DocumentViewer/en/42-1/bill/C-56/first-reading

Why is the Bill ineffective?

  1. The Code

The Bill maintains a system where Correctional Service of Canada (“CSC”) decision-makers take decisions subject to interests and pressures that may be irrelevant to the lawful grounds for segregation.

The central actor in the segregation process is the Institutional Head (the Warden) or their delegate.

Under the Bill, this person will retain the power and obligation to take decisions to maintain prisoners in segregation, initially after 21 days and. down the road, after 15.

More timely than previously, sure, but the decision remains in the hands of an individual who is part of a system – a system that, historically, defaults to keeping the person locked up.

Wardens do not work in a vacuum. They are subject to a number of administrative and “political” considerations when deciding whether to release an inmate from segregation, for example:

  1. Staff attitudes toward the inmate (including union views), particularly where the prisoner has been involved in negative interactions with staff members;
  2. Security staff recommendations, which tend to be very cautious, deferring to very strict views of safety and security;
  3. Financial or population management ( cell space/placement) considerations that make movement of the segregated inmate difficult or inconvenient.

As well, there can be a “message” component to segregation – where the purpose of placement and of continued lock-up is to indicate, to the prisoner in question and to the inmate population in general, that some type of unacceptable behavior will not be tolerated.

This arises from the “code” that overshadows most staff and prisoner interactions. The idea is that staff should not show weakness lest, in future, prisoners presume they can get away with inappropriate actions.

There is one other factor affecting Wardens, perhaps the most telling – the spectre of a decision going wrong.

If the prisoner is released and this results in harm to anyone, even with no apparent relation to the reason he/she was placed in segregation in the first place, the Warden will be accountable, or at least will appear accountable, and the public image of CSC may suffer.

This will not be the case to the same degree for a person who is truly independent of the system. Judges, for example, take decisions with significant insulation from operational accountability and censure. Even though they often defer to administrative expertise, they are able to take unpopular decisions where the law requires, without fear of prison staff, or even public, approbation.

In sum, under the Bill, just as under the current law, the Warden is not independent enough to take contentious or risky decisions.

2. Lack of Teeth

Under C-56the model of intervention by an “independent” reviewer appointed by the Minister, with the authorities set out in the Bill, is rather feeble.

C-56 envisages a kind of specialized ombudsman, with significant powers to review documents, conduct interviews and otherwise investigate, but with the authority only to recommend release.

Having worked for the Correctional investigator for 16 years, I am a fan of the ombuds method for most areas of complaint. I am skeptical, though, of the approach where segregation issues are involved.

There is no reason to believe that the reviewer, no matter how principled and informed, will succeed in changing a Warden’ mind on the hard cases armed only with the authority to recommend.

Moreover the proposals are weak in other respects.

The Correctional Investigator can make recommendations to the Minister whereas the proposed “reviewer’s” role seems to end at the Warden, except that her/his recommendations can figure in the annual report of the proposed “Senior Reviewer” – not much help to a person in the “digger” months previously.

Most important, in my view, the reviewer’s functions do not appear useful to the prisoner with respect to seeking legal remedies.

Where a prisoner is segregated, and, as often follows, where they are transferred to a higher security institution, they have the right to proceed directly to the Superior Court of their Province to seek habeas corpus – in essence to seek release from the segregation or the transfer.

The reviewer under C-56, if they have unsuccessfully recommended release from segregation, would be ideally positioned to provide useful information to the Court in reviewing segregation matters.

Here the reviewer would have conducted a thorough investigation into all facts leading to the segregation decision at issue.

They would be beholden to no institutional actors.

In particular, the reviewer would have access to the information that is withheld from offenders in segregation or transfer situations under ss.27(3) of the CCRA. This subsection permits Wardens to refuse to share information with inmates where the Warden deems this “strictly necessary” in order to protect safety or security interests.

They could therefore offer the Court useful advice, from an unencumbered perspective, into the justification for segregation and the fairness of the decision-making process.

As to confidential information, the reviewer could provide this to the Court, if necessary, without revealing withheld information to the prisoner. They  might also convince the Court to share with the offender information that was improperly concealed from him under ss.27(3)

Thus prisoners, who currently must often attempt to contest allegations from which they are blindfolded, could be afforded practical support. They could know the case against them.

Unfortunately this potential role for the reviewer is prohibited by the proposed legislation.

Under C-56 reviewers may not disclose information arising from their reviews and may not appear as witnesses . Presumably as well their reports could not be introduced by either party to any litigation as this would be considered hearsay.

3. …by any other name…

As the Bill reads, the reviewer system applies only to the formal system of segregation set out in the CCRA and not to other situations that constitute de facto segregation.

Special needs units and mental health units, as alternatives to segregation will certainly involve some degree of involuntary confinement where residents should be able to contest their placement. If the placement/reviewer process is not attached to these situations then the process can be avoided simply by “releasing” segregated prisoners to these units.

 And so?

And so, the Government must introduce review with the power to actually resolve cases. This might be effected by a Judge, as was suggested in the 1996 review of segregation by Michael Jackson, but at least by a person  not encumbered by accountabilities and loyalties to the administrative system.

Failing this, government must at least permit reviewers’ investigations and findings to be considered when truly independent review takes place before the Courts.

Without such options C-56 is very attractive curtains, and a nice flower pot.

 

Segregation in Ontario. Your move, Minister.

Here are the recommendations of the Ontario Ombudsman on segregation of inmates. They arise from a deplorable state of affairs which has clearly not been addressed to date. Keep these recommendations in mind in determining whether words or acts will govern.

Note #31, which describes an independent review process with “pouvoir decisionel”, the hallmark of an effective segregation policy. This has been ignored in the past. Let’s see what happens now.

1. The Ministry of Community Safety and Correctional Services should revise the definition of segregation to ensure that it encompasses all inmates who are held in segregation-like conditions. The revised definitions should be in accordance with international standards, which define segregation as the physical isolation of individuals to their cells for 22 to 24 hours a day.

2. The Ministry’s revised segregation definition should clearly indicate whether confining a group of inmates to their cells (e.g. lockdowns) comes within the definition.

3. The Ministry of Community Safety and Correctional Services should clearly define what constitutes a break from segregation for the purposes of determining whether a segregation placement is continuous.

4. The Ministry of Community Safety and Correctional Services should consult with frontline correctional staff to ensure that any proposed definition can be easily, accurately, and consistently applied at Ontario’s various correctional facilities.

5. Correctional officials from all organizational levels should receive training regarding the revised definition for segregation. This training should include examples of how the definition applies to different factual scenarios that commonly occur in correctional facilities.

6. The Ministry of Community Safety and Correctional Services should codify the revised segregation definition in the Ministry of Correctional Services Act or its regulation. Additional interpretative guidance regarding the application of the definition should be set out in a separate segregation policy.

7. The Ministry of Community Safety and Correctional Services should implement a revised definition of segregation as soon as possible, and no later than six months after receiving this report.

8. The Ministry of Community Safety and Correctional Services should ensure that correctional staff have sufficient resources, including access to computers and time during their shifts, to record changes in an inmate’s placement as they occur or as soon as practicable.

9. The Ministry of Community Safety and Correctional Services should research technological solutions that would streamline or automate tracking inmate movement and reduce the possibility of human error, with the goal of implementing a solution within the next 12 months.

10. The Ministry of Community Safety and Correctional Services should develop policies and provide training on how to accurately and consistently record information necessary to track segregation placements. The training should emphasize the importance of this information and explain how it is used by corrections managers and senior Ministry staff during segregation reviews.

11. The Ministry of Community Safety and Correctional Services should review its existing methods for capturing segregation data and, where possible, eliminate duplication.

12. The Ministry of Community Safety and Correctional Services should develop a standard method to accurately track the total number of consecutive days that an inmate spends in segregation for inmates who are transferred between correctional facilities. Staff should receive training on the new procedure and the Ministry should revise its policy to reflect the revised practice.

13. The Ministry of Community Safety and Correctional Services should ensure that it has a standardized method for accurately tracking and reporting on inmates who spend 60 days in segregation over a 365-day period.

14. The Ministry of Community Safety and Correctional Services should increase the functionality of the OTIS Care in Placement tool so that it automatically calculates when segregation reviews need to be completed for each inmate.

15. The computer system (OTIS) should provide frontline correctional staff and facility managers with automated notifications of any reviews that must be completed.

16. The Ministry of Community Safety and Correctional Services should develop policies regarding the use of the Care in Placement tool to ensure frontline staff know who is responsible for inputting data and when this must be completed. The Ministry should also ensure that staff have sufficient resources – access to computers and time during their shift – to enter the information in OTIS.

17. The Ministry of Community Safety and Correctional Services should regularly audit the data entered in the OTIS Care in Placement tool to ensure its accuracy and integrity.

18. The Ministry of Community Safety and Correctional Services should, on an expedited basis, give frontline staff and corrections managers access to view portions of the Active Segregation Report and exception reports related to their facility. The Ministry should provide training to these individuals about how to use and interpret the report.

19. The Ministry of Community Safety and Correctional Services should make segregation data available to the public in an anonymized form on an ongoing basis as part of the province’s open data initiative.

20. The Ministry of Community Safety and Correctional Services should create a permanent data management and reporting team and ensure it is sufficiently resourced. This team should be included in discussions about policy changes that could affect segregation data collection or statistical reporting.

21. The Ministry of Community Safety and Correctional Services should collect information on:

whether segregated inmates have mental health or developmental disabilities or other Human Rights Code-related needs;
when inmates have last met with a health care professional; and
whether there is a care or treatment plan for the inmate.
22. The Ministry of Community Safety and Correctional Services should collect and analyze statistics about the use of segregation across facilities and amongst various inmate populations. This data should include information about the inmate’s gender, race, mental health status, aboriginal status, and other relevant personal factors, as well as instances of self-harm, increased medical treatment, hospitalization, and deaths occurring during segregation. The results of this analysis, as well as the underlying data, should be reported publicly on an annual basis.

23. The Ministry of Community Safety and Correctional Services should develop a plan to implement the December 2015 recommendation of the Correctional Services Oversight and Investigations unit regarding the need to provide clearer reasoning and more fully documented decision-making during the Segregation Decision/Review process.

24. The Ministry of Community Safety and Correctional Services should provide training and guidance to correctional staff on the importance of fulsome and error-free segregation review documentation. This training should emphasize the importance of documenting why the inmate was placed in segregation and what alternatives were considered, as well as justifying why required certain steps have not been taken.

25. To promote consistency and accuracy, the Ministry of Community Safety and Correctional Services should consider using dedicated staff with specialized knowledge and training to complete the required reviews.

26. The Ministry of Community Safety and Correctional Services should consider integrating the Segregation Decision/Review form process into the Care in Placement screen workflow to streamline reporting and eliminate duplication. The Ministry should also examine how to integrate other segregation-related documentation into this portion of OTIS.

27. The Ministry of Community Safety and Correctional Services should develop processes and procedures to integrate the 5-day and 30-day review process with the weekly segregation review committee meetings. The integrated process should eliminate unnecessary duplication and ensure that information is shared between the multi-disciplinary team that supports segregated inmates and the staff who complete the segregation reporting.

28. The Ministry of Community Safety and Correctional Services should ensure the minutes and recommendations produced by weekly review committees are included with the segregation reporting information sent to regional and senior Ministry staff.

29. The Ministry of Community Safety and Correctional Services should ensure that all 30-day reports are rigorously reviewed by regional and senior Ministry staff to make certain that administrative segregation is only being used as a last resort and that the conditions of confinement are the least restrictive possible in every case.

30. The Ministry of Community Safety and Correctional Services should ensure that a special audit team, including individuals from the Correctional Services Oversight and Investigations unit, regularly reviews segregation placements to determine if they are in accordance with regulation. Given the importance of ensuring compliance with segregation policies, this procedure should be enshrined in regulation.

31. The Ministry of Community Safety and Correctional Services should carefully consider my Office’s previous recommendations regarding the creation and procedures of an independent panel to review all segregation placements, as follows:

The Minister should appoint an independent panel to review all segregation placements.
The independent panel appointed by the Minister should hold administrative hearings within the first five days of each segregation placement, and each subsequent five-day period. The inmate should be allowed to attend in person or through video conferencing with a representative of his or her choosing. The inmate should be given the opportunity to prepare and to know the case that he or she will have to meet. The Ministry should provide inmates with access to duty counsel. The hearing should be held in as neutral a venue as possible, and never in an inmate’s cell or on a living unit.
Before the review hearing, a segregated inmate should be required to meet with a rights advisor who can inform the inmate of his or her rights, including the right to obtain legal representation.
At the segregation review hearings, the burden of proof must be on the facility and the Ministry to show that the inmate’s temporary placement in segregation is justified.
At the segregation review hearings, the independent panel should evaluate the mental and physical well-being of each inmate, and the panel’s decision should take these factors into account.
The independent panel should issue a decision within one day. Written reasons will be issued if any of the parties request them within 30 days of the hearing.
The independent panel should be empowered to remove inmates from segregation immediately, as well as grant a broad range of other remedies.
The independent panel should be empowered to recommend that Superintendents initiate investigations and discipline proceedings, as appropriate, for correctional staff found to have violated the segregation regulation and policy.
The independent panel appointed by the Minister should be subject to the Ombudsman’s jurisdiction.
32. The Ministry of Community Safety and Correctional Services should report back to my Office in six months’ time on the progress in implementing my recommendations, and at six-month intervals thereafter until such time as I am satisfied that adequate steps have been taken to address them

The “Envelope”

I have now represented clients on many habeas corpus applications and other proceedings where the crux of the matter comes down to Security Intelligence Officer (“SIO”) information against the prisoner.

Normally this involves information from informants about the prisoner, which purports to show that they are too dangerous to remain at their current level of custody ( minimum, medium or maximum) or that they must be segregated for the same reason.

The Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”) and related regulations provide a system where institutions must share adverse information with prisoners, who then have the opportunity to respond to the information before a decision is made to involuntarily transfer the inmate to higher security, including the Special Handling Unit or to maintain them in segregation (hereinafter a ”decision”).

The problem arises where the institution states that some or all of the adverse information cannot be shared with the prisoner because revealing it might endanger the safety of informers, the security of the institution or the conduct of current investigations. Herein the standard under ss.27(3) of the CCRA is:

  • 3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information ………would jeopardize
  • (a) the safety of any person,
  • (b) the security of a penitentiary, or
  • (c) the conduct of any lawful investigation,

 

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

When this is alleged, according to the Supreme Court of Canada in Mission Institution v Khela [1] the information that the institution has considered, but not shared, is to be included a confidential record (hereafter “the envelope”) and given to the Judge.

The Court will then consider this concealed information in taking its final decision along with the “public” information also provided by the parties.

The Court has three functions in considering the envelope:

  1. Whether the institution was right to conceal the information from the prisoner for safety, security or investigative reasons
  2. Whether the institution properly addressed ss.27(3) in concealing any or all of the information in the envelope.

3. Whether the information supports the institution’s case

1. Security considerations 

In reviewing whether the information was necessarily concealed, per paragraphs a, b and c of ss.27(3),above, the Court will defer to the correctional, security and related expertise of the institutional staff – i.e. it will overturn any decision to withhold information only if it believes this was clearly unreasonable even given the knowledge and experience of institutional authoritie

2. Other compliance with s.27 

Aside from this “security” analysis, however, the Court will consider whether the envelope contains any information that was considered by the institution but unnecessarily withheld under ss.27(3), the Court. Under the Khela reasons, the Court can simply decide that certain information was not shared according to the wording of the statute and overturn the institution’s decision. No defference will be given to the institutional staff’s expertise.

3. The justification for the decision under review

In reviewing, the merits of the institutional decision,– i.e. the weight that must be given to the secret information, its relevance and its credibility – the Court is to conduct its analysis based on the same standards as those used with respect to the “public” materials provided by the Parties. Again, this means whether, given the presumed expertise of the institutional staff, there is a reasonable belief that the information justifies the transfer, segregation etc.

 In short, with respect to the decisions that information was properly withheld and that the institution’s ultimate decision was justified, the Courts defer greatly to the expertise of prison authorities.

The result is often bad for the prisoner, usually based on the Court’s finding that the information was properly concealed under ss.27(3) and that the concealed information supports the transfer, segregation etc.

I do not say, that the Courts are being unfair or are not competently analyzing the information, here.

The problem is that the testing of the information for accuracy, relevance and reliability is bound to be limited by the process and the standards applied to the confidential envelope.

As I said above, in a minority of cases the Courts sometimes do find that information should have been shared with the prisoner, based on CCRA s.27, and do overturn the decisions at issue. In these cases, the Court, under the Khela judgment, have simply considered, without any deference to the expertise of the institutional staff, whether the information was sufficiently shared in strict compliance with the wording of s.27.

To come to these determinations there is little or no need for the prisoner or their lawyer to actually see the concealed information or make arguments about it. The Court can canvass what is on file and decide what was considered by the institution and what should have been shared with the prisoner.

Beyond this, however, the system does not favour the prisoner. This is because there is no effective procedure for permitting prisoners to effectively contest the information in the envelope.

The Courts look at the information in the envelope and in the other documents of the parties. In virtually every case, the Courts determine the matter based on these documents, without making any inquiries of the Crown about the information in the envelope.

I and other prisoners’ lawyers have tried a number of tactics to promote informed evaluation of the envelope. We have:

a) Made written and oral submissions to the Court about what it should consider in its analysis of the concealed information – questions, for example:

i) about the credibility of informants ( their motives, the analysis leading to the rating of their reliability)

ii) about the time and place of alleged misconduct

iii) about discrepancies among the staff and inmate reports that were considered

iv) about the analysis of representations made by the prisoner in the s.27 process

v) about whether other material information should have been considered

vi) about the logic and consistency of security analysis

b) Suggested that the Court make similar inquiries to the Respondents and their witnesses (institutional staff etc)

c) Cross-examined institutional staff on their affidavits in order to reveal new public information or to provide new information to include in the envelope for consideration by the Court

d) Move for the appointment of a friend of the Court to represent the prisoner in reviewing the  envelope – an independent person with expertise in corrections who could address the issues without sharing information with the prisoner

I am not aware of any of these approaches being especially successful.

For the most part the Courts are content to deal with what they have in front of them, without making further inquiries or seeking help from independent counsel

Moreover, even if the Court does consider input from the prisoner, this input is provided ”blind” and may not identify crucial issues in the envelope.

Beyond the evidentiary problems, there are real issues in terms of the use of the Court system for any measures to address the secrecy of the envelope.

Judicial examination of respondent witnesses, cross-examinations of witness by the prisoner’s counsel and the appointment of an “amicus curiae” all impose time constraints on an already packed Court system.

This will result in even longer delays than those already in place in the Court system.

Moreover, the Courts have begun accept Crown recommendations to order costs against unsuccessful prisoner applicants and these can reach very substantial levels if new procedures are added on.

A possible solution

This is not a game.

Something has to be done to permit prisoners to contest unlawful increases in custody without one hand tied behind their back.

There are real consequences to being consigned to segregation or shipped up to higher security, and these consequences are more severe if the prisoner has to sit in the increased custody while waiting for a judicial outcome.

Not being able to know the case against them and to challenge adverse evidence makes the matter all the more perilous.

Certainly habeas corpus before the Superior Courts is a vital tool, long awaited until Khela.

That said, the Court system is a clumsy tool for issues that essentially form part of the administrative process leading to transfer and segregation decisions.

It recently occurred to me that this situation is quite akin to what occurred in the 1990’s when there was a review of administrative segregation after Madam Justice Arbour’s (Prison for Women) Inquiry.

Professor Michael Jackson, a giant in corrections law, concluded at the time that it would help if there were an independent review of segregation decisions. While Professoer Jackson suggested that a Superior Court judge could fulfill this function, others, including Arbour J., believed that an independent lawyer, along the model of the Independent Chairperson who adjudicates disciplinary offences, could fulfill the role.

The Government has never bought into the independent review model because they wanted to maintain “managerial accountability” for segregation decisions.

This issue would not apply to an independent participant in decisions based on the contents of the envelope. There would be no reason to interfere with management preprogatives.

My suggestion would be that persons, probably lawyers with corrections knowledge, be appointed by Cabinet to review information withheld under ss.27(3).

These persons would review what was withheld by institutions before the prisoner were given the opportunity to rebut the information. Herein they would have the opportunity to make inquiries with staff, inmates and the prisoner at issue, if these inquiries were permitted by the Security Intelligence Officer.

They could then make provide a report and make recommendations to the institution based on their review of s.27 issues and their view of whether the proposed transfer/segregation etc was justified. Their report and recommendations would be shared with the prisoner unless the SIO prohibited the sharing of any aspect of these.

The institution would maintain its role in deciding, subject to Court review, what should be withheld form the inmate. An independent reviewer could simply serve to evaluate the institution’s secret evidence.

The independent person need not have any power to order compliance with their findings.

This might assist the institution in deciding whether to provide with decisions.

As well, it might assist prisoners in deciding whether to proceed with a habeas corpus application.

Should the matter go to Court, the independent person’s complete report would be shared with the court in the confidential envelope. The report would provide an account of all the in dependent person’s interactions with staff, inmates the prisoner in question or others, It would include any decisions taken by the SIO in the course of the investigation.

The Court would be free to consult the independent person if it wished.

I believe this system could create efficiencies and provide accurate, reliable information for the transfer/segregation process.

It would also relieve the courts, and the Crown of ill advised litigation.

Most important, it would permit prisoners to have trustworthy and timely review of their rights, leading to timely, effective reintegration into the community.

[1] [2014] 1 SCR 502

The continuing and systemic calamity of aboriginal prisoners

A very informative article from February, 2016 is linked below.

In my view, a rather “circular” situation is a major factor in treatment of aboriginal prisoners – the ability of first nations and other aboriginal communities to supervise the release of prisoners and even to incarcerate them according to their own community standards under s.81 and s.84 of the Correction s and Conditional Release Act, S.C. 1992, c.20:

Agreements

81 (1) The Minister, or a person authorized by the Minister, may enter into an agreement with an aboriginal community for the provision of correctional services to aboriginal offenders and for payment by the Minister, or by a person authorized by the Minister, in respect of the provision of those services.

Marginal note:Scope of agreement
(2) Notwithstanding subsection (1), an agreement entered into under that subsection may provide for the provision of correctional services to a non-aboriginal offender.

Marginal note:Placement of offender
(3) In accordance with any agreement entered into under subsection (1), the Commissioner may transfer an offender to the care and custody of an aboriginal community, with the consent of the offender and of the aboriginal community.

Release to aboriginal community
84 If an inmate expresses an interest in being released into an aboriginal community, the Service shall, with the inmate’s consent, give the aboriginal community
(a) adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and
(b) an opportunity to propose a plan for the inmate’s release and integration into that community.

Marginal note:Plans with respect to long-term supervision

84.1 Where an offender who is required to be supervised by a long-term supervision order has expressed an interest in being supervised in an aboriginal community, the Service shall, if the offender consents, give the aboriginal community
(a) adequate notice of the order; and
(b) an opportunity to propose a plan for the offender’s release on supervision, and integration, into the aboriginal community.

Supervision of many aboiginal prisoners, both prior to and after release, would obviously be more successful in aboriginal communities. The success of applying native spirituality and community customs to their needs is clear.

The problem is that the communities themselves often lack the inrfrastructure, skills and, most important, understanding that will permit them to ensure effective reintegration in safe circumstances.

Even when this exists, there is a tendancy of prison authorities not to believe it. Prison authroites have the effective last word in s.81 and 84 agreements.

As far as I know, these important features of the Act have been bacially ignored over the years.

At the end of the day, though, their resurrection would be a condition precedent to informed approaches to th eeds of our over-represented aboriginal prison populations.

Perhaps, as an aspect of the rights of aboriginal communities, a legislative amendment to allow the communties the presumptive authority would help.

http://www.macleans.ca/…/canadas-prisons-are-the-new-resid…/