Canada’s prisons are failing

It has been more than 80 years since a government-ordered report into the conditions inside Canada's prisons recommended nothing less than "radical change."

That study, spearheaded by Justice Joseph Archambault, laid the framework for our modern prisons. It would reject a system built on retribution and punishment and ensure the "reformation and rehabilitation of all those who find their way into our prisons."

The better part of a century later, there are worries that the wisdom of that report has been lost. Lawyers and human rights advocates say conditions in Canada's prisons and jails have deteriorated to the point of crisis. Administrative segregation, overcrowding, arbitrary lockdowns, a lack of access to counsel are all problems that have become shockingly common.

In June 2016, Correctional Investigator Howard Sapers released his final report, after more than a decade in the job. In it, he describes a system at a breaking point.

"The odds are now firmly stacked against early discretionary release," Sapers wrote.

In that report, and in the litany of studies he published, Sapers describes a system that has steadily turned away from rehabilitation, favouring longer and longer sentences, and that has become tougher on Indigenous offenders and those with mental health issues. It's a system that has employed solitary confinement as a matter of convenience for the prisons, or as a way to cover resource shortages.

"Our correctional system is premised on the idea that the rule of law follows offenders into prison. It is guided, shaped and underwritten by constitutional rights and freedoms," Sapers wrote. "It is my hope that this fundamental truth is at the forefront of the promised Criminal Justice review."

But reforms have been delayed and panned as woefully insufficient.

The government's justice overhaul bill, C-75, left untouched the myriad mandatory minimum sentences that the Liberal Party once promised to pare down. Lawyers also say the law will do little to reduce the incarceration rate.

A series of losses before the courts in B.C. and Ontario, meanwhile, pushed Ottawa to end its aggressive use of solitary confinement. But the government's legislative fix, C-83, has been slammed by human rights advocates. The new correctional investigator, Dr. Ivan Zinger, told a parliamentary committee that the bill envisions a new regime which "may simply become 'segregation lite.'"

Ottawa's inaction is pushing lawyers to contemplate new ways to force change.

Gladue reports, and real-world supports

The Truth and Reconciliation Commission report, which offered a roadmap for Canada to repair relations with Indigenous peoples, addressed justice outcomes. It recommended moving away from mandatory minimum sentences, leveraging conditional releases, and expanding support services for all inmates, in and out of prison.

Ottawa has yet to deliver on those recommendations. Lawyers say the support services are lacking at every step of the way, and have been for awhile.

 "What's there is woefully inadequate, says Tom Engel, of Engel Law in Edmonton. "And I don't think anybody would disagree."

Indigenous offenders account for nearly 30 per cent of all federal inmates — some 3,850 people, a number that continues to increase.

The government recognizes that Indigenous people are "jailed younger, denied bail more frequently, granted parole less often and hence released later in their sentence, over-represented in segregation, overrepresented in remand custody, and more likely to be classified as higher risk offenders."

It's why specific supports have been designed to help reintegrate Indigenous inmates into the community, like healing lodges. But they are only available in some regions of the country and have a combined capacity of just over 400 beds. And they are generally only available to minimum-security inmates.

Gladue reports, which are supposed to inform sentencing judges about the personal circumstances of an offender, including the impacts of colonialism, have failed to live up to their promise because of the increase in mandatory minimums, underfunding in legal aid, and a lack of post-release services. Engel says it is only getting worse.

"Frankly, a lot of the Gladue reports aren't that helpful," he says. "There are not enough good Gladue writers." Some offenders are waving the reports, he adds, to avoid having to spend more time in pre-custody detention, where conditions are consistently worse than in prison and where services are even more scarce.

The lack of support services is also making matters worse. "When people are released on parole, they're left without proper supports or programs in the community," Engel says. "And what happens? They reoffend. Surprise, surprise."

Engel, along with some other criminal defence lawyers in Alberta, has proposed an elegantly simple solution to the government: "Exercise the pardon authority in the Criminal Code, to immediately pardon all Aboriginal offenders that are currently serving time for non-violent crimes."

He recognizes it's "radical," but says it's necessary.

Life inside

Compounding the problem is the reality that even basic services are often lacking.  Many of Engel's clients wind up in Edmonton remand centre while they await trial. "They don't get basic programming, they can't get basic healthcare — things they can get when they go to a federal penitentiary," Engel says. "Healthcare is supposed to be delivered in jail as the same standards as the community," Engel says. "It's complete bullshit. They don't even come close to it."

The problem is obviously more acute if the accused is experiencing mental health issues, or is struggling from drug withdrawal. "You cannot get a medical checkup, which is required to get into a private treatment centre," Engel points out. Some remand centres might offer some books about addiction, and note much else.

All this incentivizes pleading guilty, he says, even when the accused is innocent. (He calls that "one of the biggest threats of the integrity to the administration of criminal justice in Canada.")

In prisons, especially maximum-security institutions, services are also often inadequate. Jennifer Metcalfe is the executive director of Prisoners' Legal Services in Vancouver. Her office often deals with inmates at the Kent Institution, a maximum-security facility, and has recently filed a complaint to the Canadian Human Rights Commission, seeking redress for the systemic failures facing inmates with mental health issues. "Many prisoners report that they feel they need to be suicidal to receive any mental health services," the complaint reads.

It further notes that prisoners with mental health issues are often classified to higher security institutions than necessary and are placed in "observation cells." These cells are not meaningfully different than solitary confinement, they argue. Prisoners in these cells are "deprived of their clothes, belongings, books, television, and radios. Prisoners are provided little to no meaningful human contact." They can consult with social workers or healthcare providers for just 10 minutes per day, and are generally not permitted outside.

"The intention of parliament cannot have been to punish prisoners for having mental health needs in high levels of security," the complaint argues.

For inmates elsewhere in the institution, things can also be dire. Metcalfe says lockdowns are becoming increasingly frequent as guards take labour actions to protest inadequate conditions and a lack of support. Prisoners often find themselves stuck in their cells for long periods.

Guards have also been known to enact "restrictive movement protocols," Metcalfe says. That means "during weekdays, they can't be out of their cells for more than three hours a day." These protocols are defined by the standing orders of the prison, not by statute, meaning oversight is weaker, and the potential for abuse is greater. "So that's something that we want to pay attention to, and bring to light," says Metcalfe.

She calls this It's what he calls a "self-perpetuating state of control," where less and less freedom for inmates produces more violence, worse outcomes, and increased mental health crises.

All of this — a vacuum of services in remand, inadequacy of support in prisons, few opportunities for offenders for release plans — makes parole and early release frustratingly out of reach. Engel says it leaves judges who would otherwise be sympathetic with two options: Release the inmate to the outside without much of a safety net; or play it safe and leave them incarcerated.

Given judges will consider public "faith in the justice system" as a reason to deny release, playing it safe is often an easy answer.

Sapers, in his final report as Correctional Investigator, warned of this trend. "The recent past teaches us that Canada's custody and release machinery does not optimally function in an administrative, legal or policy environment where there is little tolerance for error or risk," he wrote. And yet the law, he argued, had become too concerned with risk management over its stated goal of rehabilitation.

Due process

With all of the alarm bells ringing, Ottawa has still been slow to act.

Even when faced with courts in two provinces striking down sections of the Corrections and Conditional Release Act, the government did not manage to pass legislation to overhaul Canada's solitary confinement regime until this summer. Even then, the bill has still be slammed as inadequate.

One of the provisions in the new law is to implement a review of an inmate's admission to solitary confinement — or, as they're referred to in the new law, "structured intervention units" — after the fifth working day.

Metcalfe says that the review process is already broken.

"It's pretty much impossible to exercise your right to be represented at an administrative segregation hearing," she says.

Sometimes these inmates are shuffled from one solitary confinement unit to another, from one province to another, making it hard for them to even know who to call. Metcalfe says her group's six phone lines are perpetually lit up.

She listed the realities that conspire against one's right to access counsel. Forms required often need to be mailed by the inmate, at their own expense. The inmate needs to put in a request to use the phone to contact a lawyer, which can often take a day. Legal aid groups, like Metcalfe's, often need to request documentation from the prison, which then requires documents to be picked up in person.

"They denied the right to counsel pretty much all the time before the law changed," Metcalfe says. "Since it's changed, they've been really obstructionist."

When asked what it is doing to ensure access to counsel, Correctional Services Canada wrote that access to counsel should be "facilitated while ensuring it does not impact the timeframe established in policy for these reviews." They added that inmates should be provided an opportunity to call a lawyer "within a reasonable period." It offered no specifics as to whether access to counsel had improved in those institutions.

But even with a lawyer, the deck can be stacked against an inmate. "There's very little procedural fairness in those hearings," Metcalfe says.

Metcalfe's team used to run a clinic in Kent Institution. "It was really important for us to go into the unit and walk the ranges and ask them through their door slots, and ask if they need legal help," she says. The clinic had the added benefit of bringing "outside eyes" to a unit where allegations of staff misconduct had been rampant, she adds.

Correctional Services Canada abruptly cancelled the clinic earlier this year, a move Metcalfe calls "infuriating." CSC refused to provide a list of any institutions where these sorts of clinics are permitted.

These problems are replicated, to a more acute degree, inside remand centres and provincial institutions.

When it comes to internal processes to lodge complaints, Engel says, prisons can often feel like star chambers. Complaints to a provincial ombudsman, or even the federal prison investigator, can often feel piecemeal and inadequate (assuming the complaint is accepted). In Alberta, prisoners must exhaust the internal complaint process first. Engels calls the whole process "a disgrace," and he says it's common knowledge.

"Prisoners know. They learn from other prisoners. It's useless."

So, sue

"Lawyers tend to do what they think they're good and what they're experienced at," Engel says. "And when there's something new that they're not familiar with, they tend to avoid it."

He says it's time for attitudes to be upended and wants nothing less than a seminal court ruling that does for prison conditions what the Supreme Court's Jordan decision did for trial delays.

"Until judges start staying prosecutions in cases where people are being treated in a cruel and unusual way, nothing will change," he says.

He points to the Arbour Report, a serious and expansive look at how to fix incarceration in Canada. Amongst its recommendations, Louise Arbour wrote that cases where "gross mismanagement or unfairness in the administration of a sentence renders the sentence harsher than that imposed by the court...a reduction of the period of imprisonment be granted, to reflect the fact that the punishment administered was more punitive than the one intended."

That's what needs to happen, Engel says. Lawyers need to start weaponizing Section 24.1 of the Charter to seek sentencing remedies for their clients unfairly put in segregation, and who are refused basic healthcare, or denied support services necessary for rehabilitation.

Because until individual inmates start seeing their sentences reduced, or start being freed outright, the government will have no real incentive to act.