I'm here today as a co-author of A Flawed Compass: A Human Rights Analysis of the Roadmap to Strengthening Public Safety. A Flawed Compass is the work of Michael Jackson, professor of law at the University of British Columbia, and me alone.
Having retired over two years ago from the John Howard Society of Canada, I am not a representative of, nor do I speak for, the John Howard Society of Canada. Craig Jones has that responsibility.
Leading up to the adoption of the CCRA in 1992, the office of the Solicitor General produced nine important papers that explored issues facing Canadian prison law, particularly in the context of the new charter. Those papers formed the substance of eight years of active public consultation. It is worth noting that the correctional law review analysis was based on a human rights perspective.
In 2007, the Minister of Public Safety created a panel to advise the minister on various important issues facing the Correctional Service. Chaired by Rob Sampson, the panel's report, along with all its recommendations, was accepted immediately by the government, without public consultation. It is now the transformative agenda for CSC, the Correctional Service of Canada.
I should begin by stating that Michael Jackson and I agree with the recommendations of the Sampson report with respect to mental health. They largely endorse the mental health strategy developed by CSC in 2004, which we also support. The important observation, however, is that mental health services are very much part of, and are influenced by, the overall correctional setting. Other correctional policies and practices can completely undermine the best plans for mental health and the noblest intentions of staff. In that respect, many of the panel's recommendations for mental health are severely compromised by other recommendations. In part, the lack of coherence has occurred because the approach of the panel completely ignored human rights.
Why are human rights essential as the foundation of correctional policy? One reason is that the purpose of human rights is to protect all citizens from abuse by the state. A prison system that is not respectful of human rights is one that necessarily tolerates abuse. We know of no evidence that abusive, arbitrary, or unfair treatment improves a prisoner's prospects for success after release. Abuse teaches that might is right, the very values that often lead to criminal acts in the first place. Effective corrections cannot occur outside a human rights framework.
The road map ignored the report the CSC commissioned in 1997 by Max Yalden, former chief commissioner of the Canadian Human Rights Commission. In doing so, it also ignored his caution. He said:
It is particularly important to recognize the fundamental nature of Canada's commitments in light of the fact that some members of Canadian society, including some CSC employees, do not necessarily share the values underlying the Service's human rights framework. In that context, it is essential to make it clear that the principles and provisions incorporated in the CCRA derive from universal human rights standards supported by all the advanced democracies with which Canada compares itself, that the Service holds itself accountable to those standards, and that it is actively committed to making them work in federal correctional institutions.
Yet this is the response given in a CFRB interview by Minister Van Loan to questions about the criticism contained in A Flawed Compass:
Prisoners have the full protection of the Charter of Rights. They have the Office of the Correctional Investigator to look into complaints. That's not the issue here. The issue is, how do we protect the rights of the people in the community, Canadians, to be safe from the threat of criminals?
There is no totalitarian regime in the world that does not espouse human rights, so long as they do not threaten whatever they define as public safety.
Our system invests tremendous resources in preserving the right to be free from crime through police, prosecution, courts, imprisonment, supervision, and so on, all without cost to the individual. But there is virtually no publicly supported mechanisms that help us preserve our right to be free from abuse by the state.
In real terms, the charter offers no significant protections in the face of a government that chooses to disregard human rights when it suits them. We need to know that our government understands human rights. We need to know that our leaders believe in human rights. We need to know that they appreciate that defence of our human rights is at the very core of democracy and, as such, it is their fundamental obligation to safeguard them, both in law and in practice. A road map for the future of corrections in Canada and its treatment of prisoners that cannot devote a single footnote to human rights, and a Minister of Public Safety who tells us that human rights are incompatible with public safety, is not a good start.
A human rights analysis of corrections and the treatment of the mentally ill within correctional settings leads to many fundamental questions that might guide the work of this committee. Some of those questions would include the following.
Can a system that is respectful of human rights and the decent treatment of those in its care place the severely mentally ill in segregation for long periods of time without even providing a thorough psychological assessment or treatment activity?
And could it refuse to implement the minimal safeguards of independent adjudication for those placed in administrative segregation or pretend that the charter and the correctional investigator could protect their human rights?
Would we tolerate a system where we pretend that the mentally ill have ready access to effective grievance and redress systems, particularly where their literacy and mental condition often make such grievances impossible to prepare?
Could a system that is respectful of human rights accept that while the Sampson panel is pending its recommendations to remove some of the residual rights for those in segregation, a 19-year-old mentally ill girl in segregation strangles herself to death in front of guards, who have instructions not to intervene unless she stops breathing?
Can we accept a correctional system that acknowledges that most of their population has serious mental health and/or addiction issues, and yet spends only 2% of revenue on programs?
Given that addictions in prisons consume most of the population and commonly co-exist with mental illness, can we accept that none of the Sampson panel recommendations relating to drugs addressed prevention, harm reduction, or treatment, while 13 recommendations would toughen enforcement, often by further restricting visits? Would we accept recommendations that see family and community support only as security problems, without any acknowledgement that both the prisoner and the family are entitled to visit and are dependent on those visits to maintain their crucial relationships?
Would a human rights approach allow for more correctional officers than nursing staff on psychiatric ranges? In contrast are the many community forensic facilities where there are no correctional staff on the ranges at all. Could we accept correctional treatment facilities that have a fraction of the treatment staff-to-patient ratios that community forensic facilities have? Could we accept huge waiting lists for programs while the Sampson panel asserts that we need to deprive people of their rights in order to motivate them to take these programs?
Could we endorse recommendations to abolish statutory release, the only gradual release option that is sometimes available to the mentally ill and the otherwise disadvantaged, while knowing that thousands would be released to the community without support, supervision, resource, or follow-up treatment? Could we tolerate a system that keeps seriously ill or disadvantaged people in prison as long as possible, all the while telling them and the public that they can earn parole?
Would we accept broad-ranging, indeed dramatic, changes to corrections without evidence of effectiveness, and in the face of contrary evidence posted on the ministry's own website?
Would we tolerate the removal from the CCRA of the long-held principle of least restrictive measure for the use of criminal sanctions in administration of prisons?
Would we accept vague promises for improvements to our prisons, when sentencing and gradual release policies will inevitably strangle the capacity of the system to deliver on them through huge population increases, inadequate space, and shortage of adequately trained staff?
Would we accept the recommendations that CSC build super-prisons, a complex of prisons within prisons, containing all levels of security and special populations, without justifying carefully how it is possible to actually deliver diverse environments and programs in such a monolithic structure?
If we were concerned about the decent and effective treatment of people in our institutions, would we turn over the planning for the future of federal corrections to a panel of non-experts chaired by an obviously politically partisan chair, with an all-embracing mandate, minimal resources, an impossible 50-day timeframe, and no provision for public consultation on their recommendations? Would we do that with defence, health, or policing?
Would we accept a correctional transformation agenda that is based on a report that never mentions human rights or acknowledges the necessity for human rights to be at the foundation of effective corrections?
We believe strongly that the important work of this committee will fail if it does not reflect in its principles, decisions, and recommendations an unequivocal endorsement of human rights as the foundation for effective corrections and for the treatment of the mentally ill in prisons.
Thank you for your attention.