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

Direct Accountability to the Deputy Commissioner for Women

There is another question which presses for an answer from the findings of the Correctional Investigator. We earlier mentioned that the one recommendation of the Glube report that the Panel rejected, at CSC’s urging, was the establishment of a separate stream of women's corrections with the warden's of the women's institutions reporting directly to the Deputy Commissioner for Women. CSC has steadfastly resisted this change. The Correctional Investigator’s report traced the history of this recommendation and CSC’s resistance:

Following the events at the Prison for Women in 1994, Justice Arbour recommended that:

The position of Deputy Commissioner for Women be created within the Correctional Service of Canada, at a rank equivalent to that of Regional Deputy Commissioner.

The federally sentenced women facilities be grouped under a reporting structure independent of the Regions, with the Wardens reporting directly to the Deputy Commissioner for Women.⁴⁰²

The Correctional Service appointed a Deputy Commissioner for Women (DCW); however, it did not afford the position line authority over the women's facilities.  Instead, the DCW was mandated to provide advice, guidance and support to the women's facilities (i.e., functional authority), while the wardens of those facilities continued to report to their respective RDCs for operational matters.  This was not the "separate stream" for women's corrections that was envisioned by Justice Arbour.

The Expert Committee chaired by Justice Glube in 2006, closely reviewed federal women's corrections in Canada, including the governance model that the CSC chose to put into place for women's facilities.  Justice Glube found that there were problems with the governance model and she subsequently recommended that: 

...the Correctional Service revisit the women's corrections governance structure in order to have the Wardens of the women offender institutions report directly to the Deputy Commissioner for Women.

The Correctional Service rejected Justice Glube's recommendation as they had rejected Justice Arbour's a decade earlier.⁴⁰³

As he did with the failure of CSC to implement independent adjudication of segregation, the Correctional Investigator considered the impact of CSC’s resistance to the establishment of a separate stream of corrections for women on the calamitous events leading to Ashley Smith’s death

As evidenced by the case of Ms. Smith, the current organizational structure resulted in nobody taking control for the overall management of what was clearly a very challenging set of behaviours.  This is particularly concerning given the excessive number of times that Ms. Smith was transferred and given Ms. Smith's continuous placement in segregation.

The current operational structure for women's corrections has been in place for a decade.  As referenced by Justice Glube, and as exemplified by the death of Ms. Smith, it is reasonable to state that the current governance structure for women's corrections is flawed and lacks the required accountability.⁴⁰⁴

While we agree that the recommendation of Arbour, Glube and the Correctional Investigator are sound, we need to be clear that weaknesses in the governance structure cannot account for the treatment of Ashley Smith. Regardless of the specifics of the governance structure surely one of the primary roles of the Deputy Commissioner must be to oversee and ensure that women are treated fairly and humanely. That mandate requires her exercising responsibility for policies governing the operation of women’s institutions. But the mandate also requires a much greater commitment to and recognition by CSC that the safeguarding of human rights is the heartbeat of its organization. There is nothing in the Panel’s Roadmap that would encourage such commitment and, as we have demonstrated, much that would further undermine it.

1. The Panel’s Response to Direct Accountability for Women

In spite of the continuous call by virtually every major review of the circumstances of federally-sentenced women as well as those of key community organizations and others for direct accountability of institutions for federally-sentenced women to a deputy commissioner, and the steadfast resistance to those recommendations by CSC, the Panel simply sides with CSC.

The Panel believes the functional role of DCW is currently satisfactory. The Panel agrees with CSC’s response to the Expert Committee’s recommendation that a “strong functional and strong leadership role by the [DCW], rather than a line authority model, is the most effective governance structure at this time. Balancing corporate attention and visibility with efficient use of resources is an important element in managing the overall model for women’s corrections.” CSC also promised to “enhance and strengthen the relationship of the DCW and her staff with all levels of the organization in order to ensure a clear and sharpened women-centered focus in support of the women’s correctional model.” The Panel supports this direction.⁴⁰⁵

This is the only matter that the Panel does not simply defer to the Glube Committee recommendations and it does so without giving any explanation for their deviation from all previous recommendations. Indeed the Panel’s comments on this matter are worded in such vague terminology that one is left to wonder how they were able to dismiss those recommendations so easily and without apparently considering the important reasons that gave rise to them. One cannot help but suspect that the recommendation conveniently gave CSC the recommendation they had been seeking since Arbour.

6. Deaths in Custody

A Preventable Death was not the first report the Correctional Investigator had published on the subject of a prisoner's death in a Canadian penitentiary that resulted from CSC’s failure to take the required or recommended measures to prevent such occurrences. In 2006, he commissioned The Deaths in Custody Study which was delivered to CSC In February 2007. This study examined 82 reported suicides, homicides, and accidental deaths of inmates while in the custody of the Correctional Service of Canada during a five year period (2001 to 2005).  The Study found the Correctional Service had failed to incorporate lessons learned and to implement corrective action over time and across Regions, with similar errors and observations being made incident after incident.  As the Correctional Investigator concluded in his report on Ashley Smith’s death, one of the key findings of that Study was that:

It is likely that some of the deaths in custody could have been averted through improved risk assessments, more vigorous preventative measures, and more competent and timely responses by institutional staff.

In the concluding section of A Preventable Death the Correctional Investigator lists the numerous ways in which at the institutional, regional and national level there was a failure of accountability:

The investigations into the death of Ms. Smith that were conducted by this Office and by the Correctional Service both found that, during her eleven-month period in federal custody, widespread breakdowns in many major components of federal corrections occurred, including:

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  inter-Regional transfers;
  
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  administrative segregation;
  
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  conditions of confinement;
  
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  health care;
  
• 
  use of force interventions;
  
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  the delivery of mental health services; and
  
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  the grievance process.⁴⁰⁶
  

It is the responsibility of the Correctional Service, as a publicly accountable organization mandated to provide safe and humane care to offenders, to learn from each of these deaths and to implement corrective measures to ensure that preventable deaths do not occur. Yet, in its Roadmap to Strengthening Public Safety the Panel, under the umbrella of “offender accountability”, recommends “transformative” changes without hardly a reference to the Correctional Service of Canada's mandate as set out in the CCRA to provide for safe and humane conditions.

How then should we view the tragedy of the death of a nineteen year old in a segregation cell in the most modern of Canadian prisons within a framework of women centred corrections? Nils Christie, one of the world’s most respected criminologist and humanist has suggested this approach:

Punishment can then be seen to reflect our understanding and our values, and is therefore regulated by standards people apply every day for what it is possible and what it is not possible to do to others . . . More than a tool for social engineering, the level and kind of punishment is a mirror of the standards that reign in a society. So the question for each and every one of us is: would it be in accordance with my general set of values to live in a state which represented me in this particular way? ⁴⁰⁷

What happened to Ashley Smith in 2007 offers such a mirror. In a lead editorial following the release of the Correctional Investigator’s report the Globe and Mail captured the images in that mirror:

Ashley Smith was not a killer or a hardened criminal; she was a mentally ill 19-year-old with personality disorders. Yet when she took her life in federal prison, she had been confined for1 ½ months to a solitary cell measuring 6 ft. by 9 ft., without a mattress, a book, or pen and paper. Seven staff looked on as she suffocated after tying a ligature around her neck. They did not go to her aid because, for bureaucratic reasons, they had been instructed to wait until she stopped breathing.

Her suicide in 2007 is a black mark on Canada's mental-health and corrections systems. Canada is simply not equipped to handle extreme behavioural disorders in children and teenagers. The Dickensian response to Ms. Smith, as described in an inquiry report last week by Correctional Investigator Howard Sapers, is indicative of wide failings that even now are probably being felt by an unknown number of inmates and mental patients.

This was not some backwoods jail in which Ms. Smith was kept. This was Canada's federal prison system, governed by laws and policies that reflect Canadians' expectations of humaneness for all prisoners. Yet those laws and policies were routinely violated, even subverted⁴⁰⁸

In his elegant and evocative book A Just Measure of Pain, Michael Ignatieff has provided us with clear images of the nature of solitary confinement in the penitentiary in the nineteenth century.

The night was the hardest time of all. Sleep was likely to be fitful and restless. A convict worked out the night watching the stars or the clouds scudding across the moon through the cell window, and listening to the catacomb silence. Sometimes there were screams. Men came apart in the loneliness and the silence ...The wardens came for the ones who cried out and took them down to the infirmary.⁴⁰⁹

In Prisoners of Isolation Michael Jackson, in describing the conditions of solitary confinement in the 20th century, suggested that these images continue to have a terrible relevance in the contemporary Canadian penitentiary. The entrenchment of human rights in the Charter and their recognition in the CCRA was intended to ensure that the cries in the night might begin to recede from our collective memory.

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