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.

 

 

 

 

 

 

 

Some Hope for Ontario Provincial Inmates

Howard Sapers: The man tasked to solve Canada’s corrections problem

Federal correctional ombudsman Howard Sapers calls solitary confinement ‘the most austere form of confinement’ in Canada.

Dave Chan

The first video footage Howard Sapers watched when he took the job as Canada’s correctional investigator in 2004 was that of an inmate choking to death in his solitary confinement cell.

The man was in medical distress, in convulsions on the floor under his cot at Quebec’s maximum security Port-Cartier Institution.

Nobody came to help him until it was too late.

Related: Solitary confinement is pure torture. I know, I was there

Related: Ontario minister seeks prison funding, studies segregation conditions

“There was concern that was raised that the individual was play acting, was attention-seeking,” Mr. Sapers said in an interview at his office this week.

“It turned out he was dying.”

The video was a window into a world Mr. Sapers would inhabit, albeit from the outside, for the next 12 years – a world characterized by high rates of aboriginal inmates, mental illness and a solitary-confinement system that serves as a prison within a prison.

As the country’s federal correctional ombudsman, the mild-mannered and bespectacled bureaucrat has spent most of his career standing up for the country’s most unpopular population: its prisoners.

“I guess we all find our place. This is my place,” he said.

Now, he is about to take on a new challenge: reforming Ontario’s troubled corrections system. On Jan. 2, just three days after he leaves his old job, Mr. Sapers starts as an independent adviser to the provincial government tasked with leading an external review of segregation policies.

“Segregation is the most austere form of confinement that we have in this country,” Mr. Sapers said in his Ottawa office, stacked with boxes for his move.

“I think that there should be limits. I don’t think that segregation should be allowed to carry on indefinitely.”

The practice of removing inmates from general population and placing them in a very small space for up to 23 hours a day, with little light or time outside, is under increasing scrutiny.

During the decade under Stephen Harper’s tough-on-crime Conservatives, Canada’s prison population was at an all-time high, even as crime rates went down. Prison construction increased and costs skyrocketed, while conditions, such as double-bunking, grew harsher. Self-injury incidents tripled. Segregation increased by 15 per cent, although it fell significantly last year.

Mr. Sapers said he believes inmates should have the same rights as everyone; it is not simply a question of preventing deaths and injuries in prisons, but believing you can.

He brings this ethos with him to Ontario, which faces criticism over the treatment of Adam Capay, a First Nations inmate who spent four years in solitary confinement awaiting trial for murder, much of it in a cell encased in acrylic glass under continuous light.

“I find that particular case disturbing for a number of reasons,” Mr. Sapers said.

“You really have to scratch your head about how could that be, that that was the best solution to whatever the problem was? At this point, I can’t even tell you what the problem was.”

Mr. Sapers said his mandate is broad, and will focus on several aspects of corrections: regulation, policy, recruitment, training and infrastructure. He has previously called for a legal cap on segregation at 30 days, with a prohibition for inmates diagnosed with serious mental-health issues.

“Segregation inside a corrections system doesn’t happen in isolation. There’s lots of factors at play in terms of who goes into segregation, and what happens to them once they’re there. And how they get out,” he said.

He will also investigate how solitary confinement affects those in pretrial custody.

“In provincial corrections systems right across the country, we now see more people in remanded custody, pretrial custody, than we see in sentenced custody,” Mr. Sapers said. “These are people who are deprived of their liberty rights, but they haven’t been convicted of anything.”

Mr. Sapers said his interest in prisons does not stem from personal experience. No one in his family went to jail. He has never served time behind bars – although he has visited countless prisons, including while on vacation. He copes with the job by talking to friends, family and people outside of work. “You distract yourself,” the married father of four said.

He studied criminology at Simon Fraser University in British Columbia. Before being appointed correctional investigator by Paul Martin’s government in 2004, he worked for the Parole Board of Canada and the John Howard Society, and served two terms as a Liberal MLA in Alberta.

Much of his tenure was under Mr. Harper’s government. Mr. Sapers calls the Conservatives “tone deaf” on indigenous issues and “dismissive” of many of his recommendations. He feels the former government missed an opportunity to improve the system after the choking death of teenage inmate Ashley Smith in 2007. He hopes the Liberals revisit the progress on 104 recommendations made by an Ontario coroner’s inquest into her death.

The Conservatives passed dozens of bills, which imposed mandatory minimum sentences, changed parole eligibility, created new barriers to pardons and cut rehabilitative programming, among other measures.

Mr. Sapers said the Conservative government never analyzed the impact – fiscal or otherwise – of what it did.

“If there was one thing about the agenda over the last 10 years that was very much a concern of mine was that it wasn’t terribly coherent,” Mr. Sapers said. “There seemed to be very little attempt to rationally approach criminal-justice reform.”

Prime Minister Justin Trudeau’s government has vowed to change the system. Although the new government had renewed Mr. Sapers’ contract until March while it revamps its appointment process, he said he is leaving now because the Liberals are more “receptive to the work that comes out of this office.”

“It’s a good time to hand things over to somebody new,” he said.

As he prepares to depart the federal system, he said he is most proud of the “unheralded work” his office does in resolving thousands of inmate complaints a year concerning everything from family visits to help with parole and health care.

But he regrets not being able to do more in indigenous corrections. Since March, 2005, the aboriginal inmate population has increased by 52 per cent.

“I’m not happy with the progress,” he said.

Mostly, Mr. Sapers sees his work as rooted in the rule of law. That everyone, no matter who they are and what they’ve done, deserves equal treatment.

“There’s a lot of vulnerable and marginalized people who come into conflict with the law,” he said.

“And how they’re treated, and the amount of dignity that they’re accorded, is very important.”

Mr. Trump and the Slippery Slope

The significance of Trump’s pledge, if he is elected, to appoint a special prosecutor to investigate charges against Hillary:

According to Time Magazine,US federal law implies that independent counsel can be appointed if the attorney general determines that an investigation by the Department of Justice “would present a conflict of interest for the department or other extraordinary circumstances” and “that under the circumstances, it would be in the public interest to appoint an outside special counsel,” .

The norm in a country governed by the Rule of Law is that the policing and prosecuting agencies independently decide whether to charge and prosecute – not politicians.

As the above passage says, appointing a special prosecutor- independent of the Department of Justice and the FBI – should occur only in extraordinary circumstances, such as when a conflict of interest occurs with respect to DOJ/FBI’s accountability. .

Such a conflict occurs where the prosecuting department is answerable to the person they would be asked to prosecute- e.g. White Water (Bill Clinton) or Watergate (Nixon).

Trump purports to say to can be used as an implement of power by the President where he does not like what the DOJ/FBI has already determined, where he believes they lack credibility.

Three dangers here:

1. The President could himself act in keeping with his own political interests
2. The President could take revenge on political opponents
3. ( the most alarming) The box would be open, the precedent set for future politics – the loser might lose their liberty as well as the election, truly a chilling effect on the willingness of people to become candidates.

Mr. Trump’s proposal is a paradigm shift into a potentially autocratic society

News on the “Pay Cuts” case

People have been asking what happened with the Federal Court application for judicial review regarding the Correctional Service of Canada decision, in October, 2013 to “increase offender accountability” by effectively their pay by 22% and eliminating pay for those who worked in CORCAN (prison industries).

The short answer is that the hearing on the matter will take place on February 6-8, 2017 in Montreal at the Palais de Justice.

Delays have occurred because of various motions and the compiling of voluminous documents by the Department of Justice (the Attorney General) and the five other lawyers representing prisoners.

I must say that I had hoped that the government would intervene to correct these very unjust measures since last October, but no news yet on that front.

T.S.

 

Hebeas Corpus – Two steps forward……

 

 

Mission Institution v. Khela [2014] 1 SCR 502, which built on May v. Ferndale Institution [2005] 3 SCR 89, was greeted by prisoner advocates and the corrections bar as a significant advance in protecting inmates who are subjected to unlawful deprivations of liberty by the Correctional Service of Canada (CSC) – e.g. involuntary transfers to higher security and segregation

In the May/ Khela progression, the Supreme Court of Canada provided a number of important tools for combatting such decisions.

First, challenges to transfer and segregation decisions could be heard as Habeas Corpus applications in provincial superior courts, and not the Federal Court, which has a reputation of being more “deferential” to CSC decisions in such matters.

Second, direct access to superior courts relieved inmates from being required to exhaust the internal grievance procedure, which can take many months, before going to Court

Third, the procedural fairness of CSC decisions, whether they afforded the inmate an opportunity to respond to all information considered by CSC, wouldhenceforth be decided by Courts on the basis of a strict reading ( a “standard of correctness”) of s. 27 of the Corrections and Conditional Release Act, S.C. 1992, c.20:

Information to be given to offenders

  • 27 (1) Where an offender is entitled by this Part or the regulations to make representations in there take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information. (3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize
  • (a) the safety of any person,
  • (b) the security of a penitentiary, or
  • (c) the conduct of any lawful investigation, 
    • S.27 incorporates previous Supreme Court constitutional decisions into the CCRA. It requires:
    • 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).

 

  1. (2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
  • That, before taking an adverse decision, CSC share with the prisoner in question all information to be considered by CSC in taking the decision, or a summary of that information
  • That the prisoner be given a reasonable time to review the shared information and to make representations to CSC, which will be considered in taking the decision
  • That the exception to the obligation to share is that CSC may withhold information where this is strictly necessary in order to prevent harm to any person, to preserve the security of the institution or to preserve the integrity of an investigation

Khela ruled that fairness is to be judged simply on whether the terms of s.27 were followed – without any “benefit of the doubt” to prison officials. Any lack of compliance with the terms of s.27 , with minor exceptions, would be considered an unlawful decision and would result in the transfer/segregation decision being overturned.

This correctness standard is different from the judicial standard to be applied in reviewing other CSC decisions – in particular the justification ( versus the fairness) of decisions.

Justification for a decision entails whether a decision has a sufficient informational and analytical basis, as opposed to whether information was properly shared and prisoner representations considered (fairness)

Justification will be judged on a standard of reasonableness – i.e such decisions will be overturned only if they were clearly unsupported by the facts. Herein the courts, as in the past, will defer to the expertise of CSC staff in taking decisions – they will not overturn the CSC decision only because they might have decided differently.

Post-Khela litigation

Clearly these new judicial rules have assisted prisoners in combatting unfairly taken decisions. Clearly CSC has been put on notice to ensure that the information sharing ( and excluding) provisions of s.27 are observed.

All this is to the good, but, as is the case with many other judicial improvements, damage control quickly kicked in to minimize the effect of the case law. Moreover, huge gaps remain in how effectively prisoners can successfully litigate adverse decisions.

The Courts have generally greeted the enhanced access to Habeas Corpus under Khela quite conservatively. Three possible bases for this are:

  1. That the Courts understandably envisioned a flood of new Habeas Corpus applications based on Khela, some of which might be frivolous or might try to inappropriately expand the Khela principles
  2. That the Courts, especially at the trial level, are very deferential to the decisions of                                                                                                                                                                                                                                                                                                                                                                                                                               administrative “experts” such a CSC officials and will second- guess prison officials only where this is clearly warranted
  3. That the Courts see their role as adjudicating legality rather than managing correctional institutions.

Accordingly, we have seen a number of trends in the case law.

Strict interpretation of “restriction of liberty”

The Courts have been reluctant to accept Habeas Corpus applications other than for straight-forward upward transfers or segregation placements. They have generally interpreted the requirement for “restriction of liberty” in Habeas Corpus cases to mean a movement to a physical setting involving actual restriction of movements and enhanced supervision/control of inmates.

Thus, a transfer from one maximum security institution to another has not been considered a “restriction” even where this involves distancing from needed community resources and family support or where the new institution has a more restrictive regime (e.g. times inmates permitted out of cells or ranges).

As well, as can be expected, the Courts will readily consider a case “moot” if a person has been moved away from the restrictive placement on which they based the Habeas Corpus application – e.g. by the time the hearing takes place the inmate has been removed from segregation or has been moved to another institution.

Deference to decisions not to share information.

Ss.27(3) provides rather strict rules on what must be shared.

If the sub-section is not invoked by CSC then the exclusion will not be permitted by the Court. Moreover, if CSC does not adequately indicate to the prisoner the reason for any exclusion of information, then ss.27(3) will be considered breached.

The devil is in the details, however.

The normal approach of CSC over the last several months has been:

  1. To announce in documents shared with the prisoner that certain, very substantial, portions of the information to be considered by the decision-maker can’t be shared because they would endanger interests provided in ss. 27(3) – safety of individuals, institutional security or the integrity of an investigation.
  2. To indicate belief in the reliability of informants’ statements based simply on categories set out in policy, without indicating how these categories were identified.
  3. To provide information to the prisoner that does not contain enough detail for them to contest the allegations against them.

In the most frequent cases, where the information relates to informers’ statements about the prisoner, the statements, CSC will inform an inmate that he has been observed carrying out inappropriate activities in general terms, without citing specifics that may assist the prisoner’s representations. For example, “observed bringing contraband into the institution after a temporary absence and leaving the contraband for another inmate to retrieve”.

  • CSC will make broad conclusions that the information withheld, usually the brunt of informants’ statements, must be withheld because revealing any of it could reasonably result in identifying the informant
  • No information is provided about any specific dates or locations that might permit the prisoner, if innocent of the allegations, to demonstrate that they could not have committed the misbehavior.
  • No attempt is made to de-personalize the information or to separate out portions that could be shared without identifying informers.
  • Informants whose statements are used will normally be characterized as “believed reliable” or, in rare cases, as “completely reliable”. These are terms used in Commissioner’s Directive 568-2, Annex B:
  •      Believed Reliable (Court) B/R or B/R/C Refers to information that gives every indication that it is accurate, but has not been confirmed. The information somewhat agrees with the general body of intelligence, is reasonable and consistent with other information on the same subject.

Completely Reliable (Court) C/R or C/R/C Refers to information that is substantiated or confirmed by one or more independent sources. The information is logical and consistent with other corroborated information on the same subject.

Little or no information will be provided, for example, on how the information coincides with other    information or on whether any informant has a motive to lie, through interaction with the prisoner under review.

At the end of the day the prisoner is usually faced with a kind of “precis” shared under s.27- statement of information that does little to help them make their case, based on assumptions about the reliability of informant information that cannot be contested.

 

The gist

In further support of their non-disclosure of information, CSC often argues that what they have shared constitutes a “summary”, as permitted in ss.27(1).

My perception has been that the purported summary does not meet the test provide in the Khela judgment , that the inmate should have sufficient information “to know the case against him”.

Moreover the summary seems to fall short of what is required even under CSC policy on sharing “gists” (summaries) of information with offenders. The characteristics of a valid gist are set out in Commissioner’s Directive 701:

Annex C

HOW TO PREPARE A GIST FOR PROTECTED INFORMATION

Gist for Protected Information

  • An offender is normally entitled to know the substance of the information which is being used in making a decision about his/her case. The substance of the information and/or significant details are shared with the offender in a “gist”. This is the duty to act fairly”.
  • A gist conveys the essence of the information to be considered by decision makers and provides sufficient detail to allow the offender to know what the information is about. It must give as much of the information as possible without disclosing information which can legitimately be withheld under the specified criteria for non-disclosure.
  • Only as much information as is strictly necessary to protect the interests identified in subsection 27(3) of the CCRA may be withheld.

 

  •  A gist is only to be used in exceptional circumstances as normally all information will be shared with offenders. If information cannot be shared with the offender in a gist form, then the information should not be used in the decision making. (For exceptions, see “Withholding a Gist”.)
  • Where the protected information is intelligence-related, the Security Intelligence Officer will prepare a gist in a separate document and provide it to the Parole Officer.
  • In all other circumstances, the Parole Officer will normally prepare the gist.

 

Preparing a Gist

  • The information shared must provide the offender with sufficient details to enable him/her to respond meaningfully to the assertions being made.
  • The gist must provide the relevant facts, including:
  • the dates and places of specific incidents
  • the manner in which these became known to the authorities
  • any other evidence supporting the intelligence information.
  • The name of the source is not relevant information.
  • The disclosure of information to an offender does not necessarily mean that he/she has a right to:
  • know the identity of the source of the information, or details and circumstances which could reveal the identity of a source of information
  • a copy of the actual documents, or
  • all of the details of the case against him/her.

 

Withholding a Gist

  • In order to justify withholding a gist, it will have to be demonstrated that the information meets one of the injury tests outlined in subsection 27(3) of the CCRA.
  • In some cases, the information is time-sensitive and must be withheld from the offender until the injury test no longer applies. The Parole Officer, in consultation with the Security Intelligence Officer will share the gist of the information when there is no imminent risk to the source.
  • In rare cases, there may be circumstances which preclude even the gist from being disclosed to the offender without compromising the security of the institution or endangering life. The reasons for the full exemption of the file will be prepared and provided to the PBC.
  • Where relevant information is of such a highly sensitive nature that a gist cannot be provided to the offender, the PBC must be informed and the following statement appended to the decision-making report:

 

“In accordance with subsection 27(3) of the CCRA, the information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information.”

  • In order to support the rationale not to disclose under subsection 27(3) of the CCRA, the following points should be noted:
  • when information has already been made public, the offender will already know the names of the victims and the details of the alleged crime thereby rendering it unlikely not to be able to share information
  • fear that disclosure would threaten the safety of sources or informants requires evidence of this allegation.

 

I have highlighted the most relevant requirements in the policy.

Suffice to say that it requires CSC to disclose sufficient information in a gist for the prisoner to know the case against them and to respond.

Suffice to say that exceptions from sharing regarding informants must be supported by “evidence” – information that has probative value and is relevant.

In my view much of what is currently shared with prisoners does not meet these tests.

Why, then, is CSC seemingly permitted to breach these rules or guidelines?

I think the answer lies in Khela’s ruling that choices about what to consider in taking decisions and how to assess the reliability of this information are within CSC’s mandate and expertise. As such the Courts have deferred to CSC (under a standard of reasonableness) in decisions as to what to include and what to rely upon in taking decisions.

 

The envelope

Khela held that, in order to assess information withheld from prisoners , the Attorney General would be required to place all unshared information in a confidential envelope. This would be reviewed by the Court but not shared with the prisoner or their lawyer.

Prisoners’ lawyers normally take pains to say that the Court should review the information in order to

    1. determine, based on a correctness standard, whether all information considered by CSC was shared
  • determine whether it had been properly evaluated for its reliability
  • determine whether it was strictly necessary to withhold all information that was not shared

 

The Court will also review this concealed information to decide with the transfer/segregation etc was justified, whether it was reasonably necessary to place the inmate in this level of custody, as opposed to any, less restrictive alternatives.

The prisoner and their counsel have no input to these determinations, which places them, of course, at a severe disadvantage.

I have seen few judgments that make specific comments on how the Court reviewed the hidden information, other than statements that the the information supports CSC’s decision.

I do not argue, of course, that the Courts are being dishonest or biased in their analysis.

Rather I wonder whether the courts might provide a more cogent analysis if somehow they could have access to both sides of the issues – to somebody knowledgeable of the correctional system and to Habeas Corpus law, who could provide that specific expertise to the Court, without disclosure to other party.

I have made the suggestion on one occasion that it might be appropriate for the Court to appoint an amicus curiae, an independent expert in law and prisons, who could review the information to decide what should have been shared and the probative value of what wasn’t shared.

This idea was rejected by the Court. I have to wonder if it should be raised again.

 

The bottom line

As a matter of litigation tactics, CSC has learned the minimum information that they must share under Khela and s.27 and argued before the Court, either in open court or in confidence.

Although the Khela judgment has enhanced the ability of prisoners to access the courts and to argue unfairness in CSC decisions, the seemingly open door has been closing.