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

Drugs in Prison

1. The Panel’s Approach

The Panel makes far-reaching recommendations which it believes will enable the Correctional Service of Canada to better wage the war on drugs inside the walls. The Panel’s approach to drug use is one dimensional focusing exclusively on greater enforcement with no sensitivity or consideration to the implications of the measures proposed on the human rights of prisoners and their families to visit and associate. In this section we review the Panel’s proposals, profile the importance of the right to visit as an integral part of a humane prison and assess the dangers of proposals that would make its exercise more difficult and demeaning.

The Panel provides us with this analysis of the problem:

“The Panel is convinced that drugs have also propagated the increase in organized gangs within penitentiaries and the ensuing violence as these gangs attempt to continue their criminal activity. Gang members are not averse to using violence to advance their agenda and to maintain or enhance their positions within the offender hierarchy. As long as drugs are a major source of revenue and power, the introduction of drugs into penitentiaries will continue to be their primary focus. Whether it is through the direct use of their associates in the community or through threats and intimidation of other offenders and their families, gang members will continue to use as many possible conduits as possible to introduce drugs into CSC penitentiaries.

The Panel members believe that illicit drugs are unacceptable in a federal penitentiary and create a dangerous environment for staff and offenders that translates into assaults on offenders and staff, promotes transmittable diseases such as HIV/AIDS and Hepatitis, and destroys any hope of providing a safe and secure environment where offenders can focus on rehabilitation.¹⁵⁰

There can be no argument that the trafficking of illegal drugs within penitentiaries is a serious problem that contributes to violence, the spread of disease and undermines prisoner rehabilitation. There can be no argument that because of these reasons, “illicit drugs are unacceptable in a federal penitentiary”. There is also no argument that the proliferation of drugs within Canadian society and the enormous profits to be made from the distribution of illegal drugs has led to the growth of international, national and local criminal networks to manufacture and distribute these commodities. That the drug trade would be a major problem in Canadian penitentiaries is neither a revelation nor surprising. A significant part of the federal prison population is made up of offenders who come to prison (1) because of illegal drug use - those who are addicted to illegal drugs and commit offenses such as robberies, to feed their habits or commit offences while under the influence of drugs and (2) because of their involvement in the networks of drug trafficking. Within the prison walls, therefore, are replicated and concentrated the market conditions for a profitable drug trade that exist outside the walls – a demand side of users eager to acquire drugs and a supply side of offenders connected to networks to fill that demand. In 1990 a British Columbia Court of Appeal judge commented during a sentencing appeal that “Drugs of all sorts are readily available in our prisons and penitentiaries. Only the price varies, in kind and amount, from that which is exacted on the street”.¹⁵¹ This comment remains as true today as then.

There is another dimension to “the drug problem” inside the walls that the Panel fails to identify or consider in formulating its recommendations. Its best exposition is by one of Canada’s most experienced correctional administrators, whose career spanned 30 years, beginning with the dark days of the BC penitentiary in the 1970’s. Ken Peterson, the then Warden of Mission Institution, laid bare the way in which the realities of confinement contribute to the use of drugs:

In this institution, as in all institutions, there is a drug subculture. It carries on feeding those who have a habit and it brings new people in. It is responsible for an undercurrent of violence that exists in all institutions. It is something to which you have to pay a lot of attention if you are an offender, because there is no neutral ground in here. I can see why inmates use drugs . . . it is to sedate themselves from what is going on. I don't think they use it to get high, I think they use it to get normal, whatever normal may be. It is to relieve that undercurrent of fear, tension, angst, whatever it may be. It's mood-altering, and when you get down to the mood in here, the mood in any prison is not good.¹⁵²

The pressing issue is what should be the appropriate set of responses of CSC to these correctional realities. The Panel identifies CSC current approach to this issue:

CSC’s current drug interdiction strategy is based on prevention, treatment, and enforcement. This strategy is guided by Canada’s National Drug Strategy, and is briefly outlined below.

Prevention

CSC’s Drug Strategy includes awareness programs, immunization programs, infectious disease testing, methadone maintenance treatment and intensive support units. Harm reduction initiatives are also available.

Treatment

CSC provides a range of internationally accredited programs to offenders whose substance dependence is related to their criminal behaviour. The more difficult the offender’s problem, the more intense the intervention.

Programs have also been designed especially for women and Aboriginal offenders. These substance abuse and maintenance programs teach offenders to manage their patterns of substance abuse, with the goal of decreasing recidivism.

Enforcement

To reduce violence and illicit drugs in penitentiaries, all offenders — including those belonging to organized criminal groups—are monitored to prevent incidents and thus enhance safety. Offenders involved in violent incidents or found possessing or using illicit drugs face disciplinary actions and criminal charges.

As to future directions, the Panel offers a prescription that is unilaterally focussed on greater enforcement. The Roadmap does not even acknowledge the fourth “pillar” in the fight against the harm of drug use in the community – harm reduction. Harm reduction strategies, arising from public health considerations, attempts to minimize the significant risk to life and health that illegal drug use and, in particular injection drug use, carries. Strategies such as needle exchange, supervised use and maintenance programs for confirmed addicts and related measures related to safer sex, and tattoo services can at least address the deadly diseases that are side effects of injection drug use. While CSC has ventured tentatively into harm reduction through the distribution of condoms and bleach kits to sanitize injection needles, other initiatives such as the tattoo pilot program was dropped even before the evaluation of its health benefits could be established¹⁵³. In the context of the evidence of effectiveness and increasing prevalence of such harm reduction measures in the community, one should have expected that a serious review of the issue of drug use in prison would have at least considered the available research, particularly since Canada has one of the most respected centers of such research in the world.¹⁵⁴

The importance of this research to a roadmap that truly addresses issues of public safety is made clear in the most recent publication by Canadian researchers in Lancet, the world's leading general medical journal:

As in the community, where there has been evidence for over a decade that HIV epidemics among IDUs¸ [intravenous drug users] can be prevented, stabilised, and reversed, there is now also an increasing body of knowledge and practice on effective prevention of the spread of HIV through drug use in prison. For the past decade, prison systems and governments have argued that measures such as needle and syringe programmes or opioid substitution therapy cannot be introduced in prisons for safety reasons, and that making them available would mean condoning drug use in prisons. Many prisoners are in prison because of drug or drug-related offences. Preventing their drug use is seen as an important part of their rehabilitation. In the eyes of many, acknowledging that drug use is a reality in prisons would be to acknowledge that prison authorities have failed. Far from condoning drug use in prisons, however, making available to prisoners the means that are necessary to protect them from HIV (and HCV) transmission acknowledges that protection of prisoners’ health needs to be the primary objective of drug policy in prisons. As the Scottish report on drug use and prisons pointed out, “the idea of a drug free prison does not seem to be any more realistic than the idea of a drug free society”, and “stability may actually be better achieved by moving beyond this concept”.¹⁵⁵

Far from acknowledging that “protection of prisoners’ health needs to be the primary objective of drug policy” the Panel recommends that CSC concentrates its resources on drug interdiction.

While the Panel appreciates that CSC’s approach to drug interdiction is headed in the right direction, we believe that much more can be done to prevent drugs from entering federal penitentiaries, and to reduce the negative impact they have on CSC’s operations.¹⁵⁶

…The Panel recommends that CSC must become more rigorous in its approach to drug interdiction by enhancing its control and management of the introduction and use of illicit substances.

8. The Panel recommends that CSC’s approach should:

a) entail the submission of an integrated request for resources supported by detailed performance targets, monitoring and an evaluation plan that requires report on CSC’s progress to the Minister, Public Safety, by no later than 2009-10;

b) incorporate a commitment to more stringent control measures (i.e., elimination of contact visits), supported by changes in legislation, if the results of the evaluation (see rec. (i)) does not support the expected progress;

c) increase the number of drug dog detection teams in each penitentiary to ensure that a drug dog is available for every shift;

d) involve the introduction of ‘scheduled visits’ so that more effective use of drug dogs can be made;

e) increase perimeter surveillance (vehicle patrol by Correctional Officers) and the re-introduction of tower surveillance, where appropriate, to counter the entry of drugs over perimeter fences;

f) include a more thorough, non-intrusive search procedure at penitentiary entry points for all vehicles, individuals and their personal belongings;

g) include the immediate limitation and/or elimination of the use of contact visits when there is reasonable proof that they pose a threat to the safety and security of the penitentiary;

h) include the purchase of new technologies, to detect the presence of drugs; (resources should be available for the ongoing maintenance and staff training);

i) enhance the policies and procedures related to the management of prescription drugs, urinalysis testing and the routine searches of offenders and their cells for illicit substances;

j) work closely with local police forces and Crown Attorneys to develop a more proactive approach for criminal sanctions related to the seizure of drugs;

k) include an amendment to the Controlled Drugs and Substances Act to create an aggravating factor (or a separate offence) for the introduction or trafficking within a penitentiary in Canada of any controlled or designated substance with a mandatory minimum penalty consecutively to any existing sentence(s);

l) include the authority for CSC to prohibit individuals who are found guilty of such charges (highlighted in XI) from entering a federal penitentiary for a period of not less than 10 years; and

m) include the development and implementation of a heightened public awareness campaign to communicate the repercussions of smuggling drugs into penitentiaries.

9. The Panel recommends that CSC, as a priority, continue to strengthen its security intelligence framework for the collection, analysis and dissemination of information within federal corrections, police services and other criminal justice partners.

10. The Panel recommends that a national database of all visitors should be created.¹⁵⁷

It is clear from the list of the Panel recommendations that enhanced security measures, increased use of drug dogs and drug-sensing technology, greater limitations on contact visits, more intense surveillance and strengthening of intelligence information and more punitive sanctions are the exclusive focus of the Panel’s approach to reform. Completely absent from the Panel’s analysis is any recognition that under the existing law, correctional authorities already have and use significantly greater powers to conduct searches within federal penitentiaries than Canadian society would ever tolerate by the police on the street. Even with these greater powers, drugs continue to flow into prisons. While it might seem reasonable to believe that implementing the Panel’s recommendation of “more stringent control measures (i.e. elimination of contact visits)” and requiring that all visits be behind glass might have some impact on reducing the flow of drugs, there is no research evidence to support this. In fact CSC’s own internal audit of drug interdiction reveals that over the period 2001-6 drug seizures in the visits areas accounted for less than 20% of drug seizures in penitentiaries.¹⁵⁸ In any event greater curtailment of contact visits would not be sufficient to stop other sources of drugs or prevent the development of new sources.

It needs to be recognized that where there is a demand for drugs they can always be found. Canada’s prisons are not unique in that respect. We also need to consider that even if the flow could be successfully reduced, this increased scarcity would significantly increase the value of drugs and competition for them with the result that the drug trade in prison could become more lucrative, desperate and, therefore, more violent.

Restricting visits beyond the current practice of selective restrictions for those who present security risks would also have a crippling effect on prisoners and their families. The already difficult task of maintaining a semblance of family life and the maintenance or development of community support networks to help prisoners on their return to society would be made even more difficult. Permitting a humane visiting regime while ensuring a drug-free penitentiary is impossible if either the visits or the drug interdiction must be absolute. Both outcomes are desirable as they reflect recognition of the competing interests at stake, recognition entirely absent from the Panel’s analysis. Without recognizing these competing interests, the Panel is unable to consider strategies other than simply allowing one to exclude the other.

The Panel makes the mistake of not recognizing that most prisoners and most visitors are not involved in the drug trade at all. Depriving them of the opportunity to maintain crucial relationships in the faint hope of seriously interfering with drug trafficking in prison is naive, arbitrary and comes at a cost that is substantial while offering no evidence or reason to think that drugs will not come in through other, potentially more problematic channels. Interference with contact visits for specific individuals might well be justified where there is abuse of visiting rules provided that the restrictions are proportional to the violation. The current law adequately provides for this. The need to identify those who are engaged in trafficking might well justify demonstrably improved interdiction methods, but does not justify grand-scale damage to family access.

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