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

Conclusion

We want to be clear that we support many of the recommendations made by the Panel regarding Aboriginal programming, including the need for community-based maintenance programs that will allow Aboriginal offenders to sustain progress after release and beyond their sentences, increased partnerships with Aboriginal communities and organizations to increase community engagement in correctional planning, release decision making and community supervision, a re-examination of the interrelationships among the use of CCRA Section 81 (Healing Lodges) and Section 84 Agreements (supervision by an Aboriginal community) and the use of community correctional facilities, and mobilizing community capacity to develop a more holistic response to Aboriginal victimization. The problem is that these recommendations have not been elevated to the profile that the dimensions of the injustice demands. We feel it necessary to restate that a “transformation” agenda that does not address, as the first priority, the staggering injustice that has been and continues to be inflicted on Aboriginal peoples is not one that a just society should endorse.

11. Physical Infrastructure and Regional Complexes

The Panel appears to have been persuaded by the UCCO submissions that substantial redevelopment of the prison infrastructure is needed in order to impose the control and disciplinary regimes that the union wants to see implemented. They quote from the UCCO brief:

Ideally, new construction would…give CSC the ability to physically separate the inmate populations according to their security classification and commitment to their correctional plan.³³⁵

We have already addressed in another chapter the problems with the UCCO brief and the recommendations that the Panel has adopted that flow from the brief. Suffice it to say at this point that if the data and analysis from UCCO was seriously flawed, a plan to rebuild the entire federal prison infrastructure to accommodate their proposals needs to be seriously questioned.

Neither author of this response to the Roadmap pretends to be qualified to address matters of infrastructure “rust-out” or prison design except in terms of some general principles where the location and design of prisons have a bearing on human rights. We will, therefore, focus our response largely on the human rights considerations. That said, we recognize that no structure can last forever – or should. This is particularly true of prisons that have gone through important transformations from the days of the Cherry Hill and Auburn Penitentiaries. While change is inevitable, and buildings become obsolete, few structures have the lasting power of the prison. We need to realize that any prisons built today will be with us for a very long time and it is, therefore, essential that if we are to avoid costly and long-lasting mistakes our plans must be based on clear correctional objectives, respect for human rights principles and solid evidence as to how design supports those objectives and principles.

The human rights principles we speak of and their relationship to the architecture of prisons have been identified by John Paget in his recent review of human rights and prison architecture in Australia:

Provisions common to human rights instruments, such as equality before the law, the right to life, protection from torture, cruel, inhuman or degrading treatment, privacy, the rights of minorities and humane treatment when derived of liberty will provide a set of principles against which aspects of prison architecture can be assessed and the quality of confinement potentially improved.³³⁶

If the human rights that he identifies are to be relevant to corrections, then the design and location of prisons must give very careful consideration to them so as to avoid creating conditions where attempts to respect those rights are undermined by the environment. The constitutional standard reflected in the CCRA that CSC use and justify the least restrictive measures demands that the structures that give force to the restrictive nature of the prison be developed to ensure that very careful accounting of how “least restrictive measure” has been recognized. Nowhere in the Act does it say that administrative convenience, efficiencies or even costs trump rights.

Paget cautions the reader that:

All the “best practice” architecture counts for very little if the right staff are not recruited, if they are not thoroughly trained, if they are not effectively supervised in the execution of human rights-based policies and procedures, if they are not well managed and developed and if they are not inspired by leaders of integrity.³³⁷

The key point here is that good management and good design must complement each other in order to achieve the desired outcome. Neither can be considered in isolation of the other and if the Roadmap is to set in motion a process that is intended to make major changes in the “philosophy”³³⁸ of prison design -to be embodied in concrete and steel – the Panel should articulate the key elements of that philosophy and demonstrate how it accommodates the fundamental principles relating to human dignity and law of human rights. In fact, other than some tenuous claims to increased efficiencies, we are left to wonder what the plans they articulate tells us about their vision of corrections in the 21st century.

1. To Build New or Replace Existing Structures

Before considering new construction or the repair of old prisons, the bigger question that needs to be answered is: “what prison capacity is needed in Canada in the foreseeable future? Prisons are enormously expensive to build or repair and in both cases take a great deal of time to plan and implement. In the case of major repair, institutions can have their routine and access to programs seriously interfered with for very long periods of time - sometimes years as exemplified by the years of limited use and disruption that as occurred during the renovations to Collins Bay Penitentiary in Kingston Ontario. If new prisons are built with the intention to replace existing ones but the prison population grows, it is quite possible that by the time the new prison is built the old prison may need to continue in service. This occurred when Millhaven was built to replace the old Kingston Penitentiary in 1970. The demand for prison space has forced CSC to continue using the oldest federal prison in Canada even to this date. It is therefore prudent to consider likely population levels before building strategies should even be considered.

Prison population levels are driven by many factors including the growth in the Canadian population generally, especially growth in the young male population, and crime rates. However, the size of prison populations is also affected by public policy choices that influence how many people are sentenced to imprisonment and how long they stay there. The most important factors that increase prison population levels are those that bring to prison significant numbers of people who would not have been there before or lengthen the period in custody either through longer sentences or restrictions on gradual release. Over the last three decades in Canada the prison population levels as a proportion of the Canadian population generally has remained flat. In Canada, we implemented sentencing options and principles that clearly directed judges to use imprisonment as a last resort. We also maintained programs of gradual release such as parole, day parole, accelerated parole review and statutory release that took pressure off the prison populations. At the same time, in the US a plethora of legislative changes introduced legions of mandatory sentencing measures that dramatically increased prison length while simultaneously sharply reducing gradual release options. As a result, our prison population rate per 100,000 of the general population increased only from 89 in 1974 to 116 in 2007. In the US during the same period, the prison population increased from 149 to 756.³³⁹

O
RECOMMENDATIONS

101. The Panel recommends that any review of changes to CSC’s physical infrastructure consider the impact of building new correctional facilities in different regional locales or correctional complexes, financing these new capital expenses in a new way, and decommissioning facilities that have long served their usefulness.

102. The Panel suggests that CSC look at other correctional jurisdictions to determine the operational and related cost-effective benefits of building new correctional facilities in different regional locales or correctional complexes.

103. The Panel recommends that CSC review standards used in the purchase of outside medical services in each of its regions.

104. The Panel recommends that the government take into consideration the importance of ensuring that both federal and national initiatives related to health care reflect the responsibilities and accountabilities of CSC. The Panel suggests that the Government examine how health care costs are funded for federal offenders and either consider providing a direct allocation out of Health Canada, or continue consideration of these core costs in the determination of CSC budgetary allocations.

105. The Panel recommends that the two-year bridge funding provided by Treasury Board to CSC for the period of 2007–09 be extended as part of CSC’s normal operating allocations.
ver the last 30 years crime rates have changed largely in tandem between the two countries. Property crime is about the same in both countries and violent crime, while higher in the US, has been on a downward trend in unison with the decline in violent crime in Canada.³⁴⁰

The comparison between Canada and the US shows that while crime and general growth in the population has an impact on imprisonment levels, public policy choices have, by far, the greatest influence. The fact that over the last two years our current federal government has adopted what is generally described as “harsh US style sentencing policies” that rely heavily on mandatory sentences for many offences should be of considerable concern for those planning future prison accommodations. The Panel, however, makes no attempt to factor these changes in sentencing policies into their proposals. Not only did they ignore the likely impact of the shift towards greater reliance on longer terms of imprisonment through the sentencing process, they did not even assess the impact on levels of imprisonment arising from their own recommendations relation to parole, statutory release and accelerated parole review. As we write in the chapter entitled Earned Parole, the Panel’s recommendations cannot help but generate sharp increases in our federal prison population. The abolition of statutory release alone will remove the release mechanism that is used in two-thirds of all releases and the Panel’s suggestion that their other reforms will result in a dramatic increase in the number of prisoners who will earn parole is unrealistic.

It is quite likely that with both the sentencing and releasing policies changing, the federal government would be hard pressed to build enough prison capacity to keep up with the growing population. Plans to replace the existing prisons for new ones will become increasingly difficult to achieve. For these reasons, the discussion of addressing “rust-out” through new construction seems a denial of correctional reality. In fact the current policies of the government when added to the new recommendations of the Panel ensures that the problems associated with repair of existing prisons will continue far in to the future – even with massive new construction. The Panel’s invitation to consider design justified by the need for replacement while ignoring expansion pressures presents both a limited and misleading picture.

2.