The Power of Perspectives

The Canadian Bar Association

Kim Covert


Jailing the mentally ill

By Kim Covert September 26, 2013 26 September 2013

A Human Rights Tribunal settlement concerning the treatment of a mentally ill woman in an Ontario jail made a small splash in provincial news this week but didn’t get a lot of play on the national level.

And that’s disappointing, because Christina Jahn’s was not the only complaint about the mistreatment of a mentally ill person in a Canadian jail – it wasn’t even the only such complaint in Ontario.

Christina Jahn, who is bi-polar – not to mention dying of cancer – alleged the Ottawa-Carleton Detention Centre discriminated against her when it locked her up in a segregation ward for more than 200 days without treatment for her mental illness – during which time she also missed getting treatment for her cancer.

The way it deals with the mentally ill isn’t the only problem facing Canada’s prison system. And no one’s saying Jahn’s behaviour didn’t present a challenge for Corrections officials, but that only underscores the point federal Correctional Investigator Howard Sapers has been making for some time – the mentally ill have no place in Canada’s prisons.

“As I have reported before, many mentally disordered inmates do not manage well in a prison environment,” Sapers says in his 2011-2013 annual report. “Some manifest symptoms of their illness through disruptive behaviour, aggression, violence, self-mutilation, suicidal ideation, withdrawal, refusal or inability to follow prison orders or rules. Within corrections, these symptoms of mental illness are often misunderstood as manipulative or malingering behaviour, and are regularly met by a range of inappropriate responses including disciplinary sanctions, transfer to higher security institutions and separation from general population.”

As part of the Jahn settlement, the province has agreed to investigate “how best to serve female inmates with major mental illness.” Among the options it will consider is the viability of building a secure treatment facility for mentally ill female prisoners – it already has one for male prisoners.

The Ministry of Community Safety and Correctional Services also committed to screening all inmates for mental health issues, and to providing psychiatrists and other mental health professionals, where appropriate, to follow up on the results and develop a suitable treatment plan.

“The Ministry recognizes that segregation can have an adverse impact on inmates with mental illness,” the settlement says. It will therefore “ensure that all inmates in segregation are offered individualized mental health services as appropriate on an ongoing basis.”

In his report, Howard Sapers noted that on the national level, “more offenders are admitted to federal penitentiaries more addicted and mentally ill than ever before.”

In 2010-11, he says, more than 45 per cent of the total male prison population received some sort of mental health care service; in the case of women, the percentage rises to 69 per cent.

That means that most Corrections officials have neither the knowledge nor the tools to deal with a vast swath of the prisoners under their care. And they shouldn’t be expected to do their jobs “unarmed” with this information.

 “I once more recommend, in keeping with Canada's domestic and international human rights commitments, laws and norms, an absolute prohibition on the practice of placing mentally ill offenders and those at risk of suicide or serious self-injury in prolonged segregation,” Sapers says.

This isn’t the first time Sapers has made the recommendation, and given that he signed up for another three-year term last year, it likely won’t be the last. Let’s hope someone starts paying attention.

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Envisioning equal justice

By Kim Covert September 25, 2013 25 September 2013

Envisioning equal justice

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Judging the man by the boy

By Kim Covert September 24, 2013 24 September 2013

The judge who will decide whether Omar Khadr can move out of a maximum-security prison says he will make his decision based on the law.

“We are not applying policy. That’s for Parliament,” Justice John Rooke said after hours of legal arguments for and against Khadr’s move to a provincial jail to serve the remainder of his eight-year term. After being repatriated from Guantanamo Bay prison in 2012, Khadr was held first at the maximum-security Millhaven Institution in Bath, Ont., largely in isolation, before being transferred to Edmonton.

The point of law which Rooke will be interpreting is whether Khadr is serving time as a youth or as an adult.

The federal government says Khadr was sentenced as a youth for murder and given concurrent sentences on four other charges as an adult, for a total of eight.

Khadr’s lawyer, Dennis Edney, says Rooke’s decision “requires a determination be made whether the sentence he received in Guantanamo, if it occurred here in Canada, would be treated as a youth sentence.”

Edney is asking for his client, who turned 27 this month, to be moved to a provincial jail where the lower security designation and access to programs might help him get parole – he was eligible to apply in July but didn’t “because he hasn’t got a chance,” Edney told reporters Monday.

Rooke’s statement that he will rely on the law instead of policy in his decision-making should have been unnecessary – Canada is a country proud to be governed by the rule of law after all.

But the letter – and the spirit – of the law have been bit players in the Khadr drama since he was arrested in Afghanistan in 2002 at the age of 15 and accused of murdering an American soldier along with other violations of the law of war.

Despite years of detention without a trial; being denied proper legal assistance; being tortured – and having the information obtained from torture used against him, Khadr has been, to all reports, a model prisoner. The Americans considered him a minimal security risk – a “good kid” – and Canada’s own prison ombudsman says Corrections officials have erred in branding him a maximum security inmate.

On Monday, Prime Minister Stephen Harper made it clear that if he had his druthers, Khadr would still be enjoying U.S. military hospitality. “This is an individual who, as you know, pled guilty to very serious crimes including murder, and it is very important that we continue to vigorously defend against any attempts, in court, to lessen his punishment for these heinous acts,” Harper said on Monday.

Treating him with any sort of leniency certainly wouldn’t play with a large portion of the Canadian population.

In the Twitterverse on Monday, when a journalist from The Canadian Press tweeted that she could see Khadr’s dimples across the courtroom, the condemnation was swift. One man tweeted that she “sickens the average human being with her love for Khadr.”

Right-wing pundit Ezra Levant responded, “You do know he considers uncovered women to be whores.”

It’s a good thing Rooke will be focusing on the legal arguments. Because in Khadr’s history, the other kind rarely swing his way.

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Thanks, but we'll have no inquiry

By Kim Covert September 19, 2013 19 September 2013

Canada has respectfully declined to act on recommendations to establish an inquiry to look into violence against aboriginal women.


The UN Human Rights Council’s 2009 Universal Periodic Review recommended Canada develop a comprehensive review, a call that was repeated in the 2013 UPR released earlier this year.

Canada employs several arguments to justify its rejection of these recommendations. The official one, the response it gave to the UN panel on Sept. 19, is this:

“Canada is strongly committed to taking action with Aboriginal and non-Aboriginal groups to prevent and stop violence against Aboriginal women and girls and there are many (federal-provincial-territorial government) legislative and administrative measures in place to address this pressing issue. (Provincial and territorial) governments have or are creating their own action plans to address violence, including violence against Aboriginal women and girls. There have been a number of inquiries and resulting proposals for improvements over the years. Canada is taking action to implement concrete solutions to prevent and reduce violence and improve community safety. In addition, race-based statistics are not recorded in a systematic matter across Canada’s criminal justice system due to operational, methodological, legal and privacy concerns.”

The unofficial one is that Canada will not be schooled on human rights by countries with their own far-from-pristine records.

Canada rejected 40 out of 162 recommendations in the 2013 UPR, including some from Iran, Sri Lanka and Cuba.

But it also rejected #96: “Develop a national plan of action to end violence against indigenous women and take the necessary measures to ensure that national protection laws against domestic violence are enforced at all levels in a consistent and effective manner.” That one was from Switzerland.

And #104: “Develop a comprehensive national action plan for addressing violence against indigenous women, and, also, give due consideration to an independent national enquiry into missing indigenous women.” (Ireland)

And #105: “Implement measures to ensure that the Aboriginality of victims of gender-based violence is accurately recorded.” (Australia)

The UNHRC is not the only body calling for an inquiry into violence against aboriginal women, including the hundreds of documented cases of missing or murdered women and girls. In February, a Human Rights Watch report alleged police abuse of aboriginal women in British Columbia. A UN special rapporteur on indigenous rights is scheduled to conduct his own investigation next month.

The Inter-American Commission on Human Rights plans to release its own report on the situation.

And provincial and territorial leaders meeting in Niagara-on-the-Lake threw their support behind an inquiry in June.

The federal government, in its response to the UN, says that it doesn’t collect race-based statistics on violence against women. But the Native Women’s Association of Canada used to, before the funding for its database was cut in the 2012 federal budget. As of 2010, the NWAC had documented 582 cases of murdered or missing aboriginal women and girls. It says there are likely more than 600 – and some estimate that the numbers are far higher, given reluctance to report matters to police.

To be fair, it’s hard, say, to take a polka-dotted country seriously when it accuses you of having a spotty record.

But that doesn’t mean you’re not covered in circles.

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You need to know this

By Kim Covert September 17, 2013 17 September 2013

Next week is Right-to-Know week – bet you didn’t know that.

It doesn’t get the same kind of media attention as, say, National Volunteer Week, or National Non-Smoking Week, or even National Dance Week, but the erosion of access to information is a problem that should concern all of us.

Canada’s Access to Information law turned 30 years old this year, and the country’s information watchdog believes it’s starting to show some wear.

Access to Information Commissioner Suzanne Legault says the law is “tired, outdated and constricted by too many limitations.”

The law doesn’t address, for example, the shift from paper to electronic communications; and she says that the greater number and intricacy of government departments and agencies makes everything more complicated now than it was in 1983.

Legault warns that budget cuts place even more stress on the system – she attributes a sharp rise in the number of complaints about delays in processing requests at least in part to reduced staff levels. In one week this month she received 80 complaints, a record in her four-year tenure.

In fact, Legault told Global News recently that the RCMP has “completely stopped responding” to access requests from the public – and also failed to respond to her office when it asked what was going on.

Any Canadian with the $5 fee and the patience to fill out the forms can ask their governments for any information they want. The government doesn’t have to give it up – there are always exceptions, for example, in cases of national security, or ongoing investigations. Departments and agencies are legally required to acknowledge receipt and respond to the request within 30 days.

People can complain to Legault’s office when that doesn’t happen, but the Commissioner cannot force departments to comply with the law.

Given that most Canadians will never file an Access request, this sounds like an Ottawa bubble problem, a whiny media response to Prime Minister Stephen Harper’s tight-fisted control of his government’s message.

But it’s not just a federal government problem – an audit conducted for Newspapers Canada last year gave most jurisdictions merely mediocre marks.

And Harper himself has championed the values of transparency and accountability in government.

Here are some of the things we’ve learned recently thanks to Access to Information requests:

  • The RCMP hid the fact that it had estimated the cost of destroying the federal gun registry at $1-million;

  • Canada is going ahead with a programming facility for F-15 fighter jets though it hasn’t made the final decision to buy the planes;

  • Access to Information requests revealed the strange lack of a paper trail in the Mike Duffy affair.

Kevin Page, the government-appointed former Parliamentary Budget Officer, took the government to court to force it to hand over information about budget cuts. He says MPs aren’t being given the information they need to do their jobs properly.

As voters, it’s our job to make informed decisions at election time. A strong, well-enforced Access to Information law helps make our jobs possible.

So start exercising your right to know. These issues will be up for discussion at the CBA’s 4th Annual Access to Information and Privacy Symposium, Sept. 27-28 in Ottawa, which will cap off Right-to-Know Week. Ask questions, make sure the media outlets you rely on, or your MPs, are asking them – and let government agencies and departments know you expect answers. Be aware, be informed.

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