Notes for an Address

Mr. Howard Sapers
Correctional Investigator of Canada
Gall Conference 2013: The State of Economic Rights in Canada

John Humphrey Centre for Peace and Human Rights
Edmonton, AB

December 10, 2013

Good evening. Thank you so much for the invitation to be in Edmonton tonight. I am honoured to be included in this celebration of International Human Rights Day and to address this important conference. I also want to thank all who have gone out of their way to give me such a warm welcome on such a cold night.

I had the pleasure of knowing Gerry Gall and learning from his publications. I am so pleased to be participating in a lecture series that recognizes his life’s work.

Tonight I want to pay tribute to the Centre by invoking the memory of John Humphrey, the principal drafter of the Universal Declaration of Human Rights. I will offer some reflections on the meaning and impact of international human rights law and what it has to say about how prisoners should be treated behind bars and why.

I will offer some thoughts on the role and relevance of prison oversight, mindful of the fact that the vast majority of inmates will one day be released and rejoin free society. If for no other reason, this is why we should care about – and monitor – what goes on behind prison walls.

Finally, I will address Canada’s changing prison population from a demographic perspective, a point of view which offers some unique insights into social justice, equality and human rights in contemporary Canadian society.

Last week the world lost an icon of human rights. The words and deeds of Nelson Mandela inspired a generation to be better. His principles reflected a certainty of his belief in humanity. His legacy is to be found wherever spirit, will and determination overcome adversity. Canada’s first Honorary Citizen will live on through the actions of all those who work to achieve his vision.

On November 26, my Office’s 40th Annual Report was tabled in Parliament. On its inside cover, the report features a well-known quote from Mr. Mandela. It reads: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Mr. Mandela certainly knew of what he spoke; he infamously spent more than 25 years imprisoned for crimes against the apartheid state of South Africa. To be sure, Mandela’s observation was not unique – before him, Dostoevsky and Churchill expressed similar sentiments. From the solitude and separation of his prison cell on Robben Island, the basic premise of Mandela’s words continue to be true: If you are judging how well any society respects human rights, you would be well-served to look at who is behind bars and how they are treated by the state. It is a theme that will carry through my remarks tonight.

Let me now take a moment to remind you of the role and mandate of my Office. As Correctional Investigator, I have statutory authority to conduct investigations into problems of offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada. Decisions to commence, or terminate, as well as the methods used to conduct an investigation, are at my discretion.

I report to Parliament through the Minister of Public Safety on the individual and systemic concerns that offenders bring to my Office, and on the ability of the CSC to implement solutions. I am fully independent of the CSC and the Department of Public Safety.

My Office is an oversight, not an advocacy body; my staff does not take sides when investigating complaints. We look for compliance, fairness and legality. We view corrections through a human rights lens. The Office is not an armchair critic of the CSC. It is an essential component of the legal framework that governs federal correctional practice.

On an annual basis my Office receives and addresses thousands of offender complaints, contacts and inquires. My team of investigators has full and unfettered access to CSC facilities, staff, documents and inmates. They regularly visit federal institutions to meet with both offenders and staff.

In 2012-13, investigators cumulatively spent 337 days in federal penitentiaries and interviewed more than 1,500 offenders. Last year, the Office reviewed 165 cases involving incidents of inmate serious bodily injury or death. Over 1,400 use of force files were reviewed.

While the Office was created in 1973, it wasn’t until 1992 that it gained statutory authority with the proclamation of the Corrections and Conditional Release Act. The CCRA was written to bring Canada’s correctional law into conformity with the Charter of Rights and Freedoms, and the Charter of course is a reflection of the Universal Declaration of Human Rights.

I sometimes wonder if John Humphrey and those he worked with to draft the United Nations’ Universal Declaration were conscious of the meaning or impact that their memorable words would have on the future. The articles themselves are short, simple and eloquent:

  • All human beings are born free and equal in dignity and rights.
  • Everyone has the right to life, liberty and security of the person.
  • No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.
  • All are equal before the law.
  • No one shall be subjected to arbitrary arrest, detention or exile.
  • Everyone charged with a penal offence has the right to be presumed innocent until proved guilty.
  • Everyone has the right to freedom of thought, conscience and religion.

These phrases contain no qualifiers as to who is entitled to bear or enjoy them. The Declaration makes it clear that these rights and freedoms apply equally to all, regardless of creed, colour, gender or circumstance. Human rights are “inalienable” and fundamental not because they have been granted, deserved or even earned, but rather because they are a necessary and inherent part of being human. They apply equally to the rich and the privileged as they do to the weak, the poor, the disenfranchised and yes, even the imprisoned. As the Declaration says, disregard or contempt for human rights threatens the “foundation of freedom, justice and peace in the world.”

The Universal Declaration set the standard for all of the major international human rights conventions that followed. Seven years after the Declaration was proclaimed, the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in August 1955, adopted the United Nations Standard Minimum Rules for the Treatment of Prisoners. The Rules lay out the essential standards and principles for the humane treatment of inmates. Though not officially endorsed by Canada until 1975, domestic law, policy and practice indicates a broad acceptance of the 95 individual rules that make up the SMRs, including rules calling for:

  • living accommodations which are appropriately heated, ventilated and cleaned;
  • nutritional food and appropriate bedding and clothing;
  • regular exercise and access to fresh air;
  • the same standard of medical services as the general public;
  • access to books and other educational materials;
  • special requirements for women prisoners covering pregnancy, childbirth and child care;
  • prohibition of corporal punishment, solitary confinement and other cruel, unusual, and or degrading treatment;
  • respect for religious and cultural differences; and,
  • the possibility to make a complaint without censorship and to be dealt with promptly.

The SMRs, as they are known, reflect the “minimum” conditions of humane treatment of prisoners that are generally accepted by the UN Member States. The Rules themselves are recognized to cover a field of thought and practice which is constantly developing. Even so, more than 50 years after their initial adoption by the world community, Canada still struggles with some of the individual rules.

For example:

  1. Federal correctional practice allows for "double-bunking" of inmates, the practice of placing two inmates in a cell designed for only one. More than 20% of the federal inmate population today is double-bunked.
  2. Canada still permits some young offenders under the age of 18 to serve their prison sentence in adult institutions. This practice not only violates the SMRs, but it is also prohibited under the International Convention on the Rights of the Child.
  3. Some penitentiary cells do not meet the standard enabling a prisoner to read or work by natural light.
  4. With respect to minimum floor space, the CSC now allows prison cells of less than 5 square metres to be double-bunked.
  5. The SMRs are not used in the training of federal correctional personnel, nor does CSC distribute the Rules to every prisoner upon their initial reception.

There are other ways in which federal correctional practice may violate either the spirit or letter of international norms and standards. For example, my Office continues to raise concerns regarding access to and quality of health care in federal penitentiaries, the delivery of which at times fails to meet professionally accepted practice or is not equivalent to community standards.

Federal correctional policy still allows for mentally disordered, chronic self-injurious and suicidal inmates to be held in conditions of prolonged segregation, a practice which Canada continues to be censured for internationally as contrary to the universal prohibition against cruel and unusual treatment or punishment. My point here is not to simply condemn the Correctional Service, but to remind us all of how challenging it is, even for advanced democracies like Canada, to live up to international ideals and obligations.

When the Office of the Correctional Investigator was established 40 years ago, it was created as a response to several disturbances that rocked Canada’s penitentiary system in the early 1970s. As I wrote in my latest Annual Report, many of the same problems that fueled that explosion of prison violence are still with us – crowding; too much time spent in cells; lack of contact with the outside world; inadequate program capacity; the paucity of meaningful prison work or vocational skills training; and polarization between inmates and custodial staff.

Today, a greater percentage of offenders are spending more of their sentence behind bars. Conditions of detention are deteriorating – more crowding, more use of force, more segregation. There are gaps in correctional programming and not enough educational, vocational and work opportunities being offered. As a result, federal penitentiaries are becoming compromised in meeting their rehabilitation mandate.

Suicide remains a significant concern and the rate of prison self-injury incidents has more than tripled in the last five years. Inmate assaults with injuries are up as is use of chemical and physical restraints where a mental health concern is identified.

In the ten year period between March 2003 and March 2013, the total federal incarcerated population has grown by close to 2,100 inmates, representing an overall increase of 16.5%.

To address this population growth, over 2,700 new or renovated cells have been, or soon will be, added to the federal system at a cost of over $650M. It now costs an average of $110,000 per year to imprison a federal male inmate and nearly double that to hold a federally sentenced woman offender in maximum security. The overall annual budget for CSC is over $2.6 billion, an increase of nearly 40% in the past five years.

The visible face of federal corrections is also changing – offenders are getting older, the population is more culturally and ethnically diverse, it is more addicted and more mentally disordered. During the last decade:

  • the Aboriginal incarcerated population increased by 46%;
  • Aboriginal women inmates increased by 80%;
  • Visible minority inmates including Black, Hispanic, Asian and East Indian, increased by almost 75%;
  • And the number of Caucasian inmates actually declined by 3%.

In other words, recent inmate population growth is almost exclusively driven by an increasing number of Aboriginal and visible minority groups behind bars. Today, fully 40% of the federal inmate population is comprised of non-Caucasian offenders.

There are some groups that are disproportionately represented in federal facilities. For example, Aboriginal people represent 23% of federal inmates yet comprise just 4.3% of the Canadian population. And nearly 1 in 10 of the incarcerated population is Black, yet Black Canadians account for less than 3% of our society.

Other demographic trends provide some equally troubling indicators about who comes into conflict with the law in Canada:

  • One in five federal inmates are aged 50 or older. A significant number will require specialized and expensive care.
  • The average level of educational attainment upon admission to a federal penitentiary is Grade 8.
  • Close to 70% of federally sentenced women report histories of sexual abuse and 86% have been physically abused at some point in their life.
  • Before prison, most offenders are chronically under-employed.
  • Addiction or substance abuse afflicts 80% of offenders. Two-thirds of federal offenders were intoxicated when they committed their index offence.
  • 31% of the inmate population is a carrier of Hepatitis C and 5% are HIV positive.
  • Over one-third of federal inmates are identified at admission as requiring some form of psychiatric or psychological service or follow-up.
  • 30% of women offenders had previously been hospitalized for psychiatric reasons.

Reviewing this list, you can begin to understand that prison acts as a kind of social barometer allowing us to gauge the success or failure of our social policies. The results are predictably poor when substance abuse, poverty, vulnerability, social exclusion, mental illness and addiction are deeply inserted into the criminal justice system. This reality is another reminder that prison reflects society; it is not separate from it.

For the two fastest growing groups in federal custody – Aboriginal and Black Canadians – correctional numbers and outcomes are especially concerning. As one editorialist recently put it, “Unless you believe that blacks and natives are predisposed by nature to committing crimes, the numbers indicate that something in their experience in this country is driving them towards lawbreaking.” These two sub-groups are over-represented in maximum security institutions and segregation placements. They are more likely to be subject to use of force interventions and incur a disproportionate number of institutional disciplinary charges. They are released later in their sentence, and less likely to be granted day or full parole.

When I released my latest Annual Report, which includes a special focus on growing ethnic and cultural diversity in corrections, I was asked to comment on whether the correctional system discriminates against Aboriginal and Black Canadians, whether it is biased, prejudiced or even racist in design or intent.

Most reasonable people would agree that some racism and prejudice exists within Canadian society. It would be naïve to think that some of this bigotry would not seep into our justice system.

The specific factors, causes and circumstances that lead to over-representation of Black or Aboriginal Canadians in federal prisons have been the subject of continuing research and inquiry, generating both consensus and controversy, but these matters were not the subject of my investigation. We looked into how the Correctional Service of Canada responds to the challenge of a diverse population behind bars, not the factors contributing to individual imprisonment.

CSC is not a racist organization. My Office found no evidence that anybody purposefully designs CSC programs, policies and practices to be discriminatory. However, systemic discrimination is rarely pre-mediated or intentional. It is the unintended consequences of otherwise benign policy decisions which have a differential impact on an identifiable group. That said, Black inmates recounted that, on the whole, stereotyping, bias and discrimination define their experience in federal corrections and this is what my Office reported.

There are some who claim there is a simple straight line relationship between those who break the law and those who end up in a federal penitentiary. As with most simple explanations of complex social problems, this is just plain wrong.

This superficial analysis dismisses the possibility of error, bias and prejudice. It fails to address our own history of race-based social policy. It ignores what we know about the relationships between poverty, substance abuse, social and economic disadvantage and conflict with the law.

And it fails to account for the decidedly poorer correctional outcomes that some, including Aboriginal and visible minority offenders, experience in comparison to others.

I said earlier that the treatment of prisoners represents a litmus test of any society’s commitment to human rights and legality. A prison system that does not operate consistent with the belief that every person – regardless of creed, colour or circumstance – is a bearer of rights is inevitably a system that tolerates abuse. And in such a system, the potential for abuse is always present.

It is not by accident that prisons are often located in geographically isolated places. They are largely closed to public view and shrouded in secrecy and security. They house many voiceless and largely disenfranchised individuals.

They function behind bars and barriers which are purposefully designed not only to keep prisoners in, but others out. Prisons are “total” institutions and they represent the ultimate expression of state authority. The keepers literally have the power to determine if the kept will see the light of day.

Nothing I have said tonight eliminates the fact that people are incarcerated for a reason. They broke laws, they hurt others and there must be a rational consequence for their actions. No one would deny that incarceration may serve such interests.

That said, society is best served if the consequence supports, rather than undermines, social cohesion. That is why our Criminal Code makes it clear that imprisonment is to be used sparingly and as a last resort.

Crime rates have been falling in Canada for more than a decade even while incarceration numbers grow. Criminal justice spending is up; rising by 23% between 2002 and 2012, ironically the identical percentage that reported crime fell during the same period.

The federal government has been clear and forthright about its “law and order” agenda. A series of policy and legislative reforms have been introduced characterized by more punitive approach and longer periods of incarceration. These initiatives include, but are not limited to:

  • new mandatory minimum sentences for certain firearms and drug offences and sexual offences against children;
  • reduction of credit for pre-trail time served;
  • eliminating Accelerated Parole Review and tightening other conditional release provisions;
  • longer waiting periods and increased costs to attain a pardon and elimination of eligibility for some serious offences;
  • harsher sentences for some repeat young offenders
  • repeal of the “faint-hope” clause, eliminating the possibility of a life-sentenced offender applying for parole after serving 15 years; and,
  • an increase in the mandatory victim fine surcharge imposed at sentencing.

In the latest Speech from the Throne, under the heading “Supporting Victims and Punishing Criminals,” the intention to bring forward tougher legislation that would “end the practice of automatic early release for serious repeat offenders” and to “change the law so that a life sentence means a sentence for life” was announced. While it is not yet clear what such measures may mean in practice, it does signal a further reliance on incarceration.

An equally wide-ranging series of policy measures, some linked to the Deficit Reduction Action Plan, have recently been implemented. For federally sentenced inmates, these changes mean:

  • paying more to make phone calls
  • increases in room and board payments
  • elimination of incentive pay for work in prison industries
  • limiting access to some prison libraries and social events.

Since one of the themes of this year’s Gall Conference is the state of economic rights in Canada, let me take a minute to more closely look at the issue of inmate pay in federal corrections. Under changes that took effect in October 2013, most offenders will now see more money from their gross inmate pay deducted to cover expenses related to food, accommodation and telephone use. This change will further erode the ability of inmates who already have limited means to meet family support obligations, save for release and pay for basic daily living requirements such as personal hygiene products and buying postage stamps.

In assessing the impact of these cost-recovery measures, it is important to know that the maximum amount that an inmate can earn while gainfully employed in a federal penitentiary was set at $6.90 per day more than 30 years ago. Inmate pay has not changed since its introduction in 1981. When the pay scales were first introduced, they took into account the fact that costs for such items as shelter, food, medical needs, furnishings and education were the responsibility of the Correctional Service. The lowest rate of pay that a working inmate could receive on a daily basis was tied to the calculation of disposable income for minimum wage earning Canadians back in 1981.

Needless to say, over time there has been considerable erosion in an inmate’s earning potential, while the notion of pegging the rate of inmate pay to disposable income and inflation has long since been abandoned. In 1981, a standard basket of prison canteen items could be purchased for $8.49. In 2005, that same basket was estimated to cost $61.59, representing a 725% increase.

Under the new inmate pay measures, offenders are now charged 30% on inmate pay as well as other sources of income to cover their food, accommodation, and telephone expenses, not to exceed a maximum of $90 per week. After deductions, the pay for a typical offender employed 40 hours a week in a prison industry amounts to about 40 cents an hour. In addition, all inmates must contribute to the Inmate Welfare Fund.

These expenses add up to $6 per 14 day pay period and cover television and cable costs, as well as a variety of Inmate Welfare Committee disbursements such as organized activities for offenders, grants to social groups, inmate publications, inmate donations to charities and legal fees for group actions.

Most offenders that I come into contact with do not disagree that they should contribute to offsetting the costs of meeting their basic daily living and accommodation expenses. The tipping point arises when the actual ability to pay is out of balance with the requirement to pay. The recent changes have seen a slew of protests and work stoppages at a number of institutions suggesting that the new pay rules and deductions are adding to the tension behind bars.

Issues such as inmate allowances test our conceptions of what is fair and right and consistent with public safety. Some even ask “Why pay inmates at all?”

But I know this lack of resources can be a real barrier to resettlement and releasing an ex-offender to the community with little in the way of savings, limited means or capacity to secure and retain employment, apply for a pardon, pay rent, obtain ID, or buy a bus pass is not conducive to safe and successful reintegration.

In these matters, like so many others involving fair and equitable treatment, the Universal Declaration of Human Rights is instructive: “everyone has the right to work, to free choice of employment, to just and favourable conditions of work … to equal pay for equal work … to just and favourable remuneration [so as to ensure] an existence worthy of human dignity …” And everyone, of course, includes incarcerated offenders.

Domestic and international sources of human rights law converge on some very essential points: a sentence of imprisonment does not mean total deprivation or absolute forfeiture of rights. By law, prisoners maintain the right to be treated with dignity and respect, they have the right to safety and security of the person, to be treated humanely, to not be discriminated against and to be free from degrading, cruel and/or inhumane treatment or punishment or other practices that undermine human dignity. As the Corrections and Conditional Release Act puts it: “offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted.”

Promoting and respecting human rights in corrections is not about somehow being “soft” on crime. With rising incarceration rates and more offenders spending more time behind bars, there is little evidence that our judicial system has suddenly gone “soft,” just as there is little evidence that our streets have become unsafe.

The Universal Declaration reminds us that our rights and freedoms are fundamental and do not exist in a vacuum; there is no hierarchy or set of rights to be protected, promoted or respected ahead of any others. Human Rights are not prizes in a contest in which only the winners are protected. The rights of offenders do not exist in opposition to the rights of others. There is no picking and choosing in terms of whose rights are more deserving or worthy.

There are well founded reasons why human rights follow a prisoner into prison, why the rule of law does not stop at the prison gate. Nothing in international law allows for a sentence of imprisonment to be for revenge or retribution alone. The essential aim of prison is to provide safe and humane custody while preparing offenders for their eventual return to the community.

In the very best correctional systems, a sentence of imprisonment is seen as an investment, an opportunity for a convicted person to make positive change in his or her life. A correctional system that is built on rehabilitation and reintegration recognizes and promotes resettlement.

The universal axiom is that offenders are sent to prison as punishment, not for punishment. In a free and democratic society, the deprivation of liberty is the punishment, not the conditions of confinement.

It seems to me that if we are going to spend $2.6 billion running our federal correctional system, then we should make sure our society is better for it. One of the best ways I know of doing that is to ensure that offenders are prepared for release back into the community, that they are not embittered by the experience, that they are not mentally unwell when released, and they are prepared and able to participate in society in a constructive and law-abiding way upon their return.

These are the desired outcomes of imprisonment. We owe it to ourselves to make sure this is what happens.

Thank you all once again for the invitation to be here and for your commitment to human rights.