A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

The Importance of a Humane Visiting Regime

One of the most important developments in the operation of modern prisons has been the liberalization of the regime governing visits between prisoners and their family and friends. The current visiting regime in the Canadian federal prison system bears scant resemblance to the movie stereotype of the prisoner desperately touching hand to glass in a facsimile of physical contact. In contrast to the cramped and often dingy spaces of thirty years ago, the visiting areas of both new and renovated institutions are more spacious, have comfortable chairs, pop machines and toys for the kids; in medium and minimum security institutions, there are adjacent, open areas with swing sets and other apparatus upon which both kids and their parents can play. Canadian institutions, with the exception of the super maximum security Special Handling Unit, have private family visiting houses or trailers in which prisoners can occasionally spend up to three days (and, exceptionally, longer periods) with their families; during this time they can interact in a more normal, relaxed, manner. They can cook their own meals, interact as parents with their children, have long private conversations and pursue the physical and emotional intimacy that is not possible in the visiting areas. In addition, in most institutions there is access to socials, powwows and other functions in which members of the community can come into the prison, either in the gymnasium or one of the outside recreation areas, to share a meal, some music and companionship. The availability of these expanded opportunities for social interaction is muted, however, by the reality that there are many prisoners who have lost community and family contact - or even hope of release - and rarely if ever receive visits. In all maximum and medium security institutions there are still areas for "closed" visits where prisoners are separated from their visitors by glass partitions and where communication is through intercom phone. These facilities are used when security risks are suspected; however, most visits now are "open" and prisoners can talk to and touch their visitors, so long as certain standards of decency and modesty are maintained. None of this is a substitute for family life but it is a far cry from the old regimes.

In the modern penitentiary, the correctional theory underlying prisoner's access to their loved ones and friends is to maintain the bonds of community to facilitate prisoners' re-integration into the community when they leave the prison gates. Providing for a humane visitation regime is directly linked to what the Panel claims to be its primary agenda -greater public safety. Researchers from Florida State University in 2008 reported the results of the most comprehensive study to date on the relationship between visiting and recidivism. No comparable research has been conducted in Canada and as the US’s fourth largest state prison system the Florida study is the best empirical evidence we have. These are the findings:

Using Florida prisoner data that overcome many of the limitations of prior studies—which typically have focused only on men, inmates from a single facility, a single and often indirect measure of visitatio, bivariate analyses with no statistical controls. and limited (e.g.. one year or less) postrelease follow-up—we tested a series of hypotheses concerning the relationship between visitation and recidivism, Briefly, we found that only 42 percent of inmates received any visitation in the year prior to release, reinforcing the notion that incarceration indeed severs individuals' ties to society. Our central overarching hypothesis was that visitation reduces recidivism, and save for a few exceptions, the analyses largely supported this expectation. Specifically, and consonant with the few extant empirical studies of the topic… any visitation and more frequent visitation were both associ­ated with a lower likelihood of recidivism. Additional, more nuanced analy­ses conveyed similar findings such as the notion that visitation over many different months exerts a greater effect than visits over fewer months. Visitation was also associated with delaying the onset or timing, of recidivism. In addition, visitation of many types, including both family and friends, was associated with reduced and delayed onset of recidivism, with spousal visitation producing a more pronounced reduction in recidivism.¹⁵⁹

The 1992 Corrections and Conditional Release Act and Regulations provides the legal architecture for a humane visiting regime that facilitates reintegration. The legislation marks a legally significant shift from the pre-1992 Penitentiary Act, in which receiving visits was a privilege, to a regime in which prisoners have a right to maintain contact with the community. The legislation recognises that under the Charter everyone, including prisoners, have the right to association, subject to reasonable limits. In the context of the penitentiary reasonable limitations on the degree and manner of association may be justified by legitimate security and safety concerns consistent with the least restrictive measures test. Thus section 71(1) of the CCRA provides:

In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other person from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

The CCR Regulations make it clear that prisoners have a presumptive entitlement to a contact (open) visit. Section 90(1) provides:

Every inmate shall have a reasonable opportunity to meet with their visitor without a physical barrier to physical contact unless

(a) the institutional head or a staff member designated by the institutional head believes on reasonable grounds that the barrier is necessary for the security of the penitentiary or the safety of any person; and

(b) no less restrictive measure is available.

The Regulations also specify the conditions under which a prisoner's right to visit can be denied or suspended. Section 91(1) provides:

(1) The institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member believes on reasonable grounds

(a) that during the course of the visit, the inmate or visitor would

(i) jeopardize the security of the penitentiary or the safety of any person, or

(ii) plan or commit a criminal offence; and

(b) that restrictions on the manner in which the visit takes place would not be adequate to control the risk.

(2) Where a refusal or suspension is authorized under subsection (1),

(a) the refusal or suspension may continue for as long as the risk referred to in that subsection continues; and

(b) the institutional head or staff member shall promptly inform the inmate and the visitor of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto.

The drafting of these provisions recognizes the Charter rights of prisoners and visitors, articulates in legislative form the correctional objectives that provide the substantial and compelling grounds for placing limitations on those rights and requires that any such limitation be the least restrictive measure. These criteria appropriately reflect principles articulated by the Supreme Court in its Charter jurisprudence and cannot be easily modified without raising serious questions of constitutionality. The significance of this carefully calibrated constitutional order in framing recommendations for reform is completely ignored by the Panel.

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