Those who advocate evidence -based, reintegrative approaches to corrections were heartened by the following points in the new Government’s Mandate Letter to the Minister of Justice and Attorney General:
- Develop, in collaboration with the Minister of Indigenous and Northern Affairs, and supported by the Minister of Status of Women, an approach to, and a mandate for, an inquiry into murdered and missing Indigenous women and girls in Canada, including the identification of a lead Minister.
- Review our litigation strategy. This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.
- You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system. Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians, and implementation of recommendations from the inquest into the death of Ashley Smith regarding the restriction of the use of solitary confinement and the treatment of those with mental illness.
- Work with the Minister of Public Safety and Emergency Preparedness and the Minister of Indigenous and Northern Affairs to address gaps in services to Aboriginal people and those with mental illness throughout the criminal justice system
Given the anticipated approach of the Minister, Jody Wilson-Raybould, a long-time defender of the rights of aboriginal people, with a thorough understanding of the criminal justice process, we can afford to hopethat the new Cabinet will break away from the attitudes of previous conservative and Liberal government towards the correctional system.
This is by no means a sure thing, however.
For decades public distain for prisoners has been mirrored, and nourished, in policy and practice by governments of all stripes, with muted opposition. Despite some significant gains legislatively, such as the Corrections and Conditional Release Act we have seen a range of particularly pernicious measures such as:
- The “two year rule”, which created an actuarial wall, using the security rating points system to automatically consign offenders convicted of murder to maximum institutions, irrespective of their actual risk to other offenders, staff or institutional security ( Liberal Government, 2001 )
- The failure to implement effective, independent review of decisions to maintain offenders in segregation as proposed by the Task Force on Administrative Segregation ( Liberal Government, 1997)
- Moratorium on inmate access to digital communication tools and on new inmate purchases on personal computers, effectively exiling prisoners from essential tools of the 21st century (2003, Liberals)
- Closing of prison farms, a significant program for teaching work skills and values that many prisoners lack ( 2011, Conservatives)
- The failure to move on recommendations arising from the Ashley Smith Inquiry (Conservative Government, 2014)
- Implementation of reductions in inmate pay and allowances, leading to reduced offender capacity to achieve reintegration to the community (Conservative Government 2013)
These specifics are serious in themselves but they arise from even more fundamental historical wrongs.
Not only have these wrongs been ignored administratively, they have been permitted to guide how we “deal with” prisoners for hundreds of years. They are the underpinning of each of the failures listed above and there is no real indication that the failures will end.
The most damaging aspectsa are:
- Devaluation of prisoners’ human rights
Prisons have been a major laboratory for judicial clarification of human rights in Canada ( and elsewhere). The Courts have long recognized that the human rights of people convicted of crimes must be retained to the greatest extent commensurate with institutional safety and security.
This rule has been fundamentally misinterpreted by many of those regulating and administering the corrections system. Despite the Courts’ pronouncements, those with power over prisoners have approached decision-making from a perspective where rights are somehow “found” exceptions to the central role of punishing and controlling prisoners. Regulations and policies are written to avoid successful challenges based on case law – not to build upon the rights that have been articulated by the Courts.
Until those in power begin to implement policy and practice beginning with rights and restricting these only where demonstrably justified by legitimate custodial objectives we will continue to have a correctional system which “accommodates” the law rather than obeying it.
More important, since rights are fundamental in and of themselves, we will remain continue to be hypocrites.
There is no other hand.
2. Acquiescence to regressive attitudes
Based on a perception that the public overwhelmingly believes prisoners are coddled and must be treated harshly Governments have consistently allowed correctional staff to treat prisoners as repressively as befits the situation.
It is an accepted attitude “inside” that, in order to maintain power and control over prisoners, they must be reminded that the authority is with the staff, irrespective of the rules. Programming can be delayed; visits curtailed; pay reduced; cells searched; parole postponed – often based on biases
This results in the systemic injustices that have been repeatedly identified – and mentioned in Mr. Trudeau’s Mandate letter, above.
Moreover, it results in the “thousand cuts” that characterize the every day relationship between the kept and the keepers- with no consequences for the latter.
The culture and politics of those who regulate the system results, at best, in pious hopes and far more often in shrugs.
3. Cynicism towards rehabilitation
It is humbly submitted that a reintegrative approach to corrections, promoting prisoners’ willingness and ability to safely return to the community, is the accepted wisdom. Experts no longer accept retributive justice as a means of making our streets safer.
Yet the pervading attitude toward corrections by those who regulate and implement is a throw back to Dickensian attitudes.
This gloss – “rehabilitation just doesn’t work” – is not supported by research. More important, it is founded in great part on the flaws that were created by the system itself. Labeling as a failure reintegration policy that is not supported by the labelers themselves is the definition of a self-fulfilling prophecy.
To the extent that staff are permitted to make such assumptions the flaws will grow as the motivation of staff to actually support effective measures diminishes.
Circular to say the least.
It can be done
The important objectives set out in the Mandate letter can be addressed to some extent by appropriate policy and legislation. The problem will be the duration of the effect on operations.
In the past changes have been recommended, and some implemented, in response to crises that the public has noticed – e.g. the McGuigan Report, the Arbour Inquiry, Ashley Smith.
Despite this the system has gradually reverted to the status quo.
This has occurred, in my view, because the motivations, understanding and values of those who execute policy have not been addressed.
There is no “accountability” ( a favourite catchword of practitioners) for falling to monitor and to instill appropriate attitudes among correctional staff.
I don’t say that it is easy to turn around beliefs and “codes” that have been in place forever. I do say that I have never seen a serious effort to promote human rights and effective corrections on the floor.
The rolling of eyes and the smirk remain the main obstacle to justice and good corrections.
This government has an opportunity to set a new course. Let’s hope they can translate “ensuring that current provisions are aligned with the objectives of the criminal justice system” into more than window dressing.