Notes for Address
Mr. Howard Sapers, Correctional Investigator of Canada

Maclean Lecture
University of Victoria
Victoria, BC
September 28, 2015

Thank you for that very generous introduction Dean Webber.  It is a pleasure to be here today and an honour to participate in the Maclean lecture series.  I am particularly honoured to know that members of the Maclean family are present.  It is a privilege to be part of this speaker series and the MacLean family legacy. Many thanks to Gerry Ferguson for the invitation to share some thoughts about the current and future state of corrections in Canada.

I started my day here at UVic by meeting with Michelle Lawrence and her Sentencing class.  We had a great discussion.  Dean, you are blessed with excellent faculty and students.

I almost didn’t make it here.  As some of you may be aware, after 11 years as Correctional Investigator for Canada, this Spring the government decided they wanted to replace me.  Thank goodness for elections!  The search for my replacement has been put on hold and as a result, I am happily still in my position.   As far as I’m concerned its business as usual.  I continue to perform my duties and functions as the Corrections and Conditional Release Act provides.   

Let me assure you that the Office of the Correctional Investigator is on solid footing. 

There is a strong team of dedicated public servants in place to carry out the work of the Office with integrity and professionalism.  The mandate is intact and Canadians continue to gain the benefit of robust oversight of their federal correctional service.

My remarks today will focus on areas of federal correctional practice where I believe there still are some serious challenges.  I am here today as part of a slow return home from a trip to Namibia and South Africa.  This has put memories of the late Nelson Mandela in the forefront of my thoughts.  I am reminded that Mandela once observed, “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.” 

With these words in mind, I will look at the profile of people ending up behind bars today to remind us that prison conditions and the treatment of prisoners reflect the society it serves.  This will lead me to observations about the continuing relevance and importance of prison oversight in a free and democratic society.  Finally, I will offer some thoughts about the impact of recent legislative and policy changes on corrections, sentencing and criminal justice more generally. 

Before I get too far into my comments, I would like to take a moment to remind you of what the Office of the Correctional Investigator does.

The Office has been around since 1973 and in legislation since 1992.  The Office’s powers and authorities are in fact embedded in the same federal statute that governs the Parole Board and the Correctional Service of Canada.

As Correctional Investigator, I serve as an ombudsman for those who are serving a federal sentence of sentence of two years or more.  I conduct investigations into the problems of offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada. The OCI is an oversight, not an advocacy body; my staff does not take sides when investigating complaints against the Correctional Service.  I am non-partisan and fully independent of the Correctional Service and the Minister of Public Safety.

We look for compliance, fairness and legality.  We view corrections through a human rights lens.  Impartiality and independence, principles that are protected in the law, are the source of the Office’s influence with the Correctional Service and our credibility with Parliamentarians and the public.

The OCI is a small oversight agency with 35 full time staff and an annual budget of $4 million.  My investigative staff has full and unfettered access to federal correctional facilities, staff, documents and offenders.  They regularly visit federal institutions to meet with both offenders and staff.  Last fiscal year, they cumulatively spent more than 380 days inside federal penitentiaries conducting more than 2,100 interviews. 

Last year we reviewed 1,510 use of force reviews as well as 167 mandated reviews of deaths in custody, assaults and incidents resulting in serious bodily injury.  It is a heavy and demanding workload.

I am often asked why Canada needs a Correctional Investigator, why inmates need an Ombudsman, or indeed, why anyone should care about how inmates are treated.  Why should we be concerned about the well-being of those behind bars?  After all, convicted and sentenced criminals are in prison to be punished.     

The answer is the rule of law does not stop at the prison gate. Human rights follow an offender into the prison yard.  Correctional practice is governed by a legal framework that empowers the state to only interfere with the life and liberty of the incarcerated to the minimum extent necessary. 

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.” 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.

Prison has always shone a spotlight on the problems and inequalities of the larger society in which it functions.  It is by no means a new observation that some of Canada’s more vulnerable and disadvantaged groups are disproportionately involved with our police, courts and prisons.  The results are predictably poor when substance abuse, poverty, social exclusion, mental illness and addiction are deeply inserted into the criminal justice system.  The point that I keep coming back to is this: prison reflects society – it is not separate from it.

It seems somewhat paradoxical that at the same time that national crime rates have fallen, in some cases to historic lows, the federal prison population has increased.  In the ten year period between 2004 and 2014, the total Canadian federal incarcerated population grew by over to 2,200 inmates, representing an overall increase of 17.5%.  Most of this growth over the past decade can be attributed to steady increases in incarcerated populations of Aboriginal people, visible minorities and women. 

Breaking these numbers down, over the last ten years:

  • The Aboriginal incarcerated population increased by 53.8%.  Aboriginal people now represent 24.4% of the total federal inmate population while comprising just 4.3% of the Canadian population.
  • Visible minority inmates including Black, Hispanic, Asian and East Indian individuals, increased by 95%.  Nearly 10% of the incarcerated population is Black, yet Black Canadians account for less than 3% of Canadian society. 
  • The population of all federally sentenced women has increased by 77% in the last ten years.  The number of incarcerated Aboriginal women has increased a staggering 133%, making them the fastest growing sub-population of Canadians behind bars.   

The profile of sentenced people in custody is changing.  Larger demographic and socio-economic trends, as well as legislative and policy reforms, are driving who is imprisoned, for how long and why.        

  • Today, one in four federal inmates is 50 years of age or older.  The population of aging or older people behind bars has risen dramatically, increasing by nearly one-third in the last five years alone.  It is a result of the combined demographic effect of a general population that is aging, offenders staying longer in prison before release and the accumulation of longer-serving, indeterminate or life sentenced offenders inside federal prisons.  Today, in fact, one in four inmates is serving an indeterminate or life sentence.
  • The average level of educational attainment upon admission to a federal penitentiary remains low. 
  • Approximately 75% of offenders admitted to federal custody on their first sentence between April 2008 and March 2013 self-reported that they did not have a high school diploma or equivalent.  Last year, 61% of those assessed with an education need at intake had Grade 8 or less education. 
  • Approximately 60% of offenders have employment needs identified at intake to federal custody.  Before prison, most are chronically under or unemployed.
  • Nearly 4 in 10 male offenders require further assessment at admission to determine if they have mental health needs. 
  • 30% of women offenders had previously been hospitalized for psychiatric reasons while close to half of all incarcerated women are currently prescribed some form of psychotropic medication to manage mental health problems.
  • Close to 70% of federally sentenced women report histories of sexual abuse and 86% have been physically abused at some point in their life.  Their life histories of trauma cannot be separated from their conflict with the law.
  • Addiction or substance abuse issues trouble 80% of male offenders. In fact, two-thirds of all federal offenders were under the influence of an intoxicant when they committed their index offence. 

This changing profile of risk and need stretches our conventional understanding of what prisons are, or what purpose they serve.  What makes this environment more challenging for those managing or overseeing prisons is the context in which these changes have developed.  Matters of crime and punishment have never before been thrust so directly into the forefront of public discourse, and this discourse is often pursued without balance or facts. 

Driven by these changes and pushed to address more complex needs, the components of our criminal justice system are struggling to keep pace. 

The system has become increasingly costly to operate.  Overall spending on the criminal justice system at the federal, provincial and territorial levels was well over $20 billion last year.  Total criminal justice costs have risen by almost 25% in the last decade, coincidentally about the same amount that the national crime rate has fallen.

We have to ask ourselves what we get for that level of spending.  Today, there are:

  • More people in detention awaiting trial or sentencing than actually serving a court-ordered sentence.
  • We have clogged courts, delays and backlogs – administration of justice issues, not criminal charges, now account for more than one-fifth of all cases brought before the courts in Canada.
  • Our remand facilities are overcrowded, violent and nearly devoid of substantive programs and interventions. 
  • And we continue to have tragic deaths in custody that bring grief to communities, destroy staff morale and often result in long and costly law suits.

At the federal level, in the past three years, the Correctional Service of Canada has added or retrofitted a total of 2,700 cells at more than 30 different penitentiaries for a total cost of over $700M.  Since 2003-04, expenditures on federal corrections have increased 72.5% from $1.56B to $2.69B.   

Last fiscal year the average cost of keeping a federal male inmate behind bars was $108,376.  The annual cost for incarcerating a female inmate was nearly double that figure at $210,695.  By contrast, maintaining an offender in the community is 70% less than what it costs to him or her locked up.  On a per capita basis, the federal correctional system now costs each and every Canadian $71.48 per year to operate. 

For that level of per capita spending, we should get something more than just incapacitation or warehousing.  Our prisons should be safe and correctional outcomes should be excellent.  However, in spite of the best efforts of overwhelmingly professional and competent corrections workers, the current trends are not encouraging.

Prison conditions continue to deteriorate.  We see increased crowding and violence, too much time spent in cells and decreased contact with the outside world.  There is insufficient program capacity, scarcity of meaningful vocational skills training and more offenders are now serving longer portions of their sentence behind bars before release.   

The prison farms have been closed, federal funding for proven reintegration and release programs such as Lifeline and Circles of Support and Accountability has been eliminated, and work programs supported through prison industries have been reduced.

According to the Auditor General’s spring 2015 report, there has been some serious slippage in the CSC’s mandate to prepare offenders for safe and timely reintegration.  The AG found: 

  • 65% of offenders in 2013/14 did not complete their correctional programs before their first parole eligibility dates.
  • Most offenders returned to the community in 2013/14 were released at statutory release (two-thirds of sentence) rather than parole.
  • Half of all offenders staying in custody beyond their first parole eligibility dates were considered low-risk.

As the Auditor General concluded, and as my Office can confirm, the slowing rate of offenders returned to the community is leading to higher and avoidable custody costs without a measurable contribution to reducing crime.

The climate inside our federal institutions is troubling.  Over the past decade, the number of use of force incidents have almost doubled, admissions to administrative segregation have increased, incidents of prison self-injury have tripled, inmate assaults have more than doubled and involuntary transfers have grown significantly.  Pepper spray, lockdowns, restraints and exceptional searches are used with alarming frequency.

In my opinion, we are seeing some shifts away from the rehabilitative aims of correctional practice.  It is as if we have forgotten that simply locking more people up for longer periods of time only to ultimately release them with little or no supervision does not help us create a safer society.    

In recent years, a series of policy and legislative reforms have aimed at making offenders more accountable.  As a result, inmates are increasingly bearing more of the direct costs to keep themselves clothed, fed, housed and cared for behind bars.  

Holding offenders to account now means that they are expected to pay more for their room and board, telephone use, canteen goods and some over the counter medications.   Remember, they pay these costs from daily allowances that haven’t increased since 1981.  It is little wonder offenders return to the community with little or no financial resources to assist in their transition.

Long-standing correctional principles – such as the concept of “least restrictive measures” – became diluted when the 2012 Safe Streets and Communities Act replaced the language of “least restrictive” with the more subjective language of “necessary and proportionate”. 

Legal principles that were once reserved for sentencing, such as the “nature and gravity of the offence” and the “degree of responsibility of the offender,” have crept into how federal sentences are administered, including parole decision-making.  The concept of inmate privileges has been dropped from correctional law altogether.  Instead of being the outcome of a well functioning system, public safety has become in and of itself the dominant principle upon which federal corrections is based, overshadowing equally important and balancing principles such as rehabilitation and reintegration.  

Changes in legal principle and purpose are not merely rhetorical exercises – they have consequential impacts on how offenders are managed in correctional facilities, including when (or even if) they appear before the Parole Board of Canada.  The mechanisms and systems used to assess risk and eligibility for release to the community – work releases, temporary absences, compassionate releases, day and full parole – have become much more restricted.  Today, there is little tolerance for even well managed risk.  

There has been a rapid expansion of mandatory minimum penalties for a series of both minor and major offences.  Criteria for indeterminate sentences, including Dangerous Offender and Long Term Supervision Order designations, have been expanded capturing a wider range of offences. 

Meantime, parole eligibility for certain offences has been gradually tightened or eliminated entirely.  Even the process for obtaining a pardon, now called a “record suspension,” has become more difficult, lengthy and expensive.

The results are predictable – more offenders serving more of their sentence behind bars rather than being supervised in the community.  This reduction in supervised release may actually serve to increase public risk rather than diminish it.

A number of recent legislative measures have been contested or settled in the courts, challenged on procedural, fairness and Charter grounds.  The retro-active abolition of accelerated parole review, reduction of credit for time served in pre-trial custody, mandatory minimum penalties for gun crime and the mandatory imposition of the victim surcharge have been successfully challenged.

There are, as we speak, a series of legal actions making their way through the system regarding the use of administrative segregation in federal prisons.  Recently, the Supreme Court of Canada ruled that federal prisoners should have access to the provincial Superior Courts to pursue some of these challenges.  As conditions of detention deteriorate, I fully expect to see more offenders seeking relief through the courts. 

Other legislative proposals that were before Parliament prior to the election call, such as Bill C-53 (Life Means Life Act) and Bill C-56 (Statutory Release Reform Act), could have an impact on average sentence length and time served behind bars should they ever be enacted.

As an Ombudsman, it is not my role to pass judgement on the appropriateness of these measures or the language used to justify or defend them.  However, if offenders are only ever considered as bad or unredeemable as their crimes, it is easy for us to lose grasp of their humanity.  As Michelle Alexander, a civil rights attorney and legal scholar in the United States has remarked, “criminals … are the one social group … we have permission to hate.”  The notion that sentenced persons become invisible or are disposable and that punishment with no limits is justified stands many of the principles underlying our democracy and our criminal justice system on their head.

In the environment and conditions that I have described, I believe that independent oversight and external monitoring of prisons becomes more not less important.  Federal penitentiaries are managing some very complex populations.  Though never intended to serve as psychiatric, palliative or long term care residences, they are under increasing pressure to perform these functions on a routine basis. 

We know from experience that sentenced individuals have the best chance of success upon release when they have been treated fairly, when they have access to programs and interventions that are matched to need and risk and when these supports are delivered by the right people at the right time in the sentence.  Graduated and structured release is more successful than releasing an offender directly from prison to the street with limited or no period of community supervision. 

The situation I have described is not irreversible.  Let me conclude with some recommendations about where I believe we should concentrate our efforts.  For example:

  • Prohibit long-term segregation of mentally disordered, suicidal and self-injurious offenders and impose legislative limits on the use of administrative segregation to no more than 30 continuous days.
  • Develop a compassionate Older Offender strategic plan.
  • Appoint a Patient Advocate to serve at each of the five regional psychiatric treatment centres.
  • Develop an integrated treatment model for offenders with concurrent substance abuse and mental health disorders.
  • Establish a National Forum to lead death in custody prevention efforts.
  • Appoint a Deputy Commissioner for Aboriginal Corrections.
  • Ensure Gladue factors are considered in all case management decision making.
  • Renew focus on community reintegration and offender rehabilitation.

In Canada, human rights and the rule of law define the limits of state authority.  In the area of criminal justice, we recognize the authority of the state to punish.  However, we must be careful that this authority results in more than simple retribution.  Being aware of who is imprisoned and remembering what it is we hope to accomplish through a sentence of imprisonment must be at centre of our justice system.

Our system reflects a desire to reinforce acceptable behaviour and sanction the unacceptable.  People are sentenced as a consequence for their actions.  That said, society is best served if that consequence supports, rather than undermines, social inclusion. 

That is why imprisonment is to be used sparingly and as a last resort.  And given, that if imprisoned, most offenders will eventually be released. This means the focus must be on safe custody and the gradual and timely return of offenders to their community.

This is not about being hard or soft or left or right.  This is about respecting the law and doing what we know works instead of doing what may be easy or expedient.

Thanks again for the invitation to speak with you today.  I wish you all the best with your work.