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…/

Segregation : Progress?

Ivan Zinger, the interim Correctional Investigator (prison ombudsman) has release a report on progress by the Correctional Service of Canada in controlling and reducing the use of segregation (solitary confinement) arising from recommendations stemming from the Ashley Smith matter, and others.

http://www.cbc.ca/news/politics/prison-ombudsman-segregation-decline-1.4024816http://www.cbc.ca/news/politics/prison-ombudsman-segregation-decline-1.4024816

The good news: admissions to segregation are down and so is the duration of confinements

The not-so-good news: Much of this reduction is due to inmates being confined to “alternatives” to segregation such as “mental health” and “special needs” units. As the Correctional Investigator points out, these units can involve up to 22 hours cell time per day and there are no hard data on the nature of such alternatives.

I would imagine, as well, that there is very little information on due process (procedural fairness) for such placements.

I remember in he 90’s, when CSC was compelled to clean up its act on segregation, that it did so in part via “transition units”, sort of a half-way placement between solitary and open population. In the event, such units were usually seg by another name and did not provide even the procedural protections (reviews and administrative fairness) for administrative segregation under the Corrections and Conditional Release Act.

I look for more assurance that the Correctional Service is really taking a new cultural approach to counter the tendency to use segregation as a Skinnerian mechanism to keep inmates in line.

 

The essence of the problem is that prison staff regard isolation as a means to demonstrate and maintain their power over inmates who challenge there authority.

I would say that, most of the time, segregation, at least as an initial step, is used legitimately where (as stated in the Corrections and conditional Release Act) there is a reasonable belief that maintain the inmate in open population would create safety or security risks, or would impair an on-going investigation.

The problem is that segregation can be used without sufficient justification, and even based on untrue allegations, to exert power over inmates and to indicate that segregation will be used for that purpose irrespective of legislative or policy rules.

It can also be used simply to rid staff of the need to manage persistently irritating inmates ( including those with mental issues that cause them to act inappropriately).

Faced with staff resistance to decisions to counter unnecessary segregation, and with the prospect of a release from segregation that goes terribly wrong, managers can be less willing than they should be to counter the attitudes of some members of the thin blue line of  Correctional Officers. At the end of the day, Wardens have to rely on the support of their officers.

I wish CSC well in its house cleaning but, frankly, I’ve been there. And the only thing that holds any promise in controlling misconduct is some form of independent control of segregation decisions, free from the influences that can hamper in-house decision-making.

I can’t accept that calling spade a shovel is the solution.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A major danger to human rights in the U.S.

During the term of President Trump, and afterwards, depending on life spans of Justices, the Supreme Court of the U.S. could make major shifts on vital constitutional issues. In the CNN post, below, are the apparent favourites on Trump’s nominee list.

Not pretty.

It’s fair to say that the nominees favour ( or favor, I guess) an “originalist” perspective – that the Constitution should be interpretted based on how the framers would have decided cases, or, at best, how the community at the time (1780’s) would have decided.

As well, or as a result, they are big on the need for the Courts to defer to government and executive policy and to deemed “political” decisions.

We are looking at a potential slam dunk for social conservative and populist legislators who will enact laws that conflict with the more modern jurisprudence on the Bill of Rights – possible subject matters – reproductive rights, LGBTG ss to services and employment, gun control, law enforcement and sentencing, the death penalty, regulation of immigration ….etc

One facet may well be approaches to prisoners’ rights in the US. There has been a gradual improvement in sentencing practices and, I believe, in the judicial review of prison decisions on prisoner access to  release, reasonable preparation for release and to community contact and support.

I don’t think that 18th century folks would be particularly sympathetic in these areas.

Film at 11.

Some quasi-tangible promises from Minister Goodale

The 2015-2016 Annual Report of the Correctional Investigator of Canada (“the CI”) ( the federal ombudsman for offenders) includes, as usual, a number of important and incisive recommendations. [1]

Also as usual, the Report has been given almost negligible press coverage, reflecting the lack of interest and the simplistic attitudes of Canadians on corrections – and the willingness of politicians to back-burner the topic until the next riot.

The Correctional Service of Canada (CSC) responded to the Annual Report with its usual parade of “developing a strategy..”, “…continu[ing] to explore evidence-based interventions..” and the like, or simply supporting the status quo.[2]

In two areas, though, the Minister has taken up CI issues, and made relatively actionable undertakings that reflect the Department’s mandate to review the policy and legislation in place and make needed changes.[3]

Provision of treatment to inmates with mental conditions.

My experience is that a significant number of inmates with potentially-treatable mental conditions are simply not provided effective, often obvious, treatment because of inadequate health service budgeting and  because security decisions place mentally-ill offenders in custodial situations where care is not available.

For the most part, consideration of mental health care needs by CSC focuses on whether inmates can be safely housed and controlled without incident, rather than whether they are being properly diagnosed and treated.

Much of the Minister’s reply mouths the broad and tenuous measures stated in the CSC reply to the Annual Report but the Minister does at least make one decision that can be monitored for compliance in a measureable fashion:

“The Service is exploring the feasibility of agreements with community partners and provinces/territories for the provision of care to offenders with significant mental illnesses.  Where agreements do not yet exist, the Minister of Public Safety has directed Department officials to keep him apprised regarding the progress of these matters”

Just what is meant by “significant mental illnesses” is problematic and the reply does not set any time-table or clearly delineate where it will be examining the existence of agreements.

That said, the approach does represent a significant departure in the Service’s health care approach. It envisages the possibility of placing patients, regardless of their status as prisoners, in locations where they can receive effective treatment.

It is up to advocates, and one hopes, the new CI, to monitor this closely, to identify patients in need, to point out potential programs and to lobby for case-by-case, tangible solutions.

This opportunity for focus on specific needs in specific cases, rather than pious hopes, is the key.

Inmate pay and allowances

Here the Minister responded to OCI conclusions that CSC draconian cuts in disposable allowance of inmates have severely impeded their purchase power – and accordingly, in my view, their ability to meet family needs and to prepare for release.

The entire Ministerial response bears repeating”

“Our Government has established a mandate to review changes in our criminal justice system over the past decade.  Recognizing the important role that inmate payment and allowance plays in encouraging offenders to participate in program assignments and providing financial assistance to offenders to facilitate their reintegration into the community, the Minister of Public Safety has asked CSC to undertake a review of the inmate payment/allowance system in federal corrections.  This review will include an assessment of the changes implemented in 2014 that required offenders to assume a greater proportion of the costs of their food and accommodation in order to determine whether or not the existing system is achieving its intended results and whether the current inmate pay/allowance system is aligned with the objectives of the criminal justice system.  The Service will provide the Minister of Public Safety with a copy of this report, including recommended next steps, by the end of December 2017.” [my emphasis]

[Being somewhat jaded, based on years of dealing with CSC and Ministers, I find it interesting that the report will be required only after the judicial review of the 2013 “cuts” to inmate allowances has been completed. On the other hand, it is to be hoped that the Court decision ( even if negative) will bolster conclusions in favour of restoring fairness to offender allowances.]

The CI report clearly outlines the two major gaps that exist in the pay system.

First the level of allowance provided to inmates, which was supposed to be based on minimum wages in the community, has not changed in more than 30 years despite inflation.

Second the 2013 cuts diminish meager allowances by a further 22%.

From a procedural perspective, to me it is clear that the required review should involve consultation of inmates under s.74 of the Corrections and Conditional Release Act []:

 The Service shall provide inmates with the opportunity to contribute to decisions of the Service affecting the inmate population as a whole, or affecting a group within the inmate population, except decisions relating to security matters.

If you know somebody “inside” now is the time to tell them to make their views known on how the pay cuts, and the effects that the level of allowances has had on their lives.

As well, you should write to the Commissioner of Corrections and ask him when you and inmates will be consulted on the changes. Also, feel free to offer your own opinion about inmate allowances.

[1] http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20152016-eng.aspx#s5

[2] http://www.csc-scc.gc.ca/publications/005007-2806-eng.shtml

[3] https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/oci-rspns-2015-2016-en.aspx

[4]S.C. 1992, c.20

“Danger” in the workplace can mean locking up “trouble-makers”

The Canada Labour Code, R.S.C., 1985, c. L-2,(“the Code”)  at  Part II, governs federal Public Servants on safety and health issues. This includes federal prison guards, Correctional Officers.

S.128 of the Code provides:

Refusal to work if danger

  •  (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

    • (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

    • (b) a condition exists in the place that constitutes a danger to the employee; or

    • (c) the performance of the activity constitutes a danger to the employee or to another employee.

  • Marginal note:No refusal permitted in certain dangerous circumstances

    (2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

    • (a) the refusal puts the life, health or safety of another person directly in danger; or

    • (b) the danger referred to in subsection (1) is a normal condition of employment

 

The Code defines “danger” as any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered;

Very important to our discussion is that the Code itself and the operational values underlying the Code make it very easy for employees to claim that a danger exists in their workplace and to refuse to work, without fear of employer reprisal, until the issue has been resolved under the procedures laid out in the Code. In a nutshell, this procedure involves a number of steps, including dialogue and appeals of various decisions, that can permit work refusals over a substantial period – weeks or even months.

Herein, it is true:

a) that the Code says that the danger  must involve a serious and imminent threat to health or life.

b) that the so-called danger must not be a hazard that the employee encounters as a normal aspect of their work.

c) that the refusal to work must not cause another persons safety or health to be “directly” endangered

Nevertheless, even if the danger claimed patently does not meet these standards, an employee can go on refusing work and using the s.128 process for quite a while before being required to resume work. During this period the employees right to refuse work will not be questioned or sanctioned.

After all, giving the employee “latitude” in questionable cases of refusal will ensure that employers err in favour of protecting employees.

Consider, though, this scenario:

  1. For some reason one or more employees develop a dislike for a federal inmate or otherwise decide that this inmate deserves to be controlled or punished.
  2. They perceive that management is not supporting them or taking required steps to address the inmate’s bad behavior
  3. So, they use s.128 to refuse to work in association with the inmate because they say he is a danger
  4. During the s.128 process, since the employees have the right to refuse working with the inmate (irrespective of the credibility of their danger claim) the inmate is kept away from the employees
  5. This can involve locking up the inmate and limiting his time out of his cell – in effect segregating the inmate without protection of the segregation rules under the Corrections and Conditional Release Act, S.C. 1996, c.20 (“the CCRA”)

So, on the one hand, CCRA principles permit restricting the liberty of prisoners only to the extent that this is necessary for reasons related to safety or security or to safe reintegration of offenders and. accordingly inmates shouldn’t be locked up unless this can be shown necessary,

On the other hand, the Code gives employees the benefit of the doubt in citing a danger, even where the resolution of the matter involves imprisoning a prisoner.

Bottom line: A prisoner can, in effect, be locked up by guards even if this is for unreliable reasons and for a substantial period.

So, surely this can be challenged before the prisoner languishes too long.

The inmate can grieve the situation or he can file a habeas corpus or other judicial review application, contending that he is unlawfully confined more than is necessary to address his risk.

The problems with these remedies are:

a) they take weeks or months, during which the prisoner can remain confined

b) if the prisoner is removed from confinement before it goes to court the matter may well be moot – the Court will not rule on a confinement that does not exist at the time of the hearing.

c) the Courts are very deferential to rights conferred under the Code and to correctional decisions that they consider reasonable – there is always the specter of a bad decision that caused injury, or worse, when the prisoner is let out.

I believe that the only effective way to deal with this kind of scam is to seek a Charter or tort remedy against the employees who abused their authority to do harm to the prisoner.

The object would be to show that employees, with the active or passive collaboration of institutional management, unlawfully imprisoned a prisoner where they knew or ought to have known that this was not required under their duty of custodial care.

I do not say that employees could never be correct in contending that a prisoner would be a particularly serious danger to deal with. Sometimes this could be the case, especially in high security circumstances, dealing with particularly violent offenders.

What I do say is that refusal to work in the particular case of prisoners cannot be allowed to operate with impunity, especially where prisoners are routinely supervised without incident in the security circumstances of an institution.

Correctional officials need to able to effect prisoners’ rights to the least restrictive custody commensurate with their risk to other persons.

If legislative change is necessary ensure this, make it so!

In the meantime there have to be consequences for abuse of custodial duties and H/S protections.