Proceeding of the Standing Senate Committee on
Human Rights
Issue No. 21 - Evidence - Meeting of October 4, 2017
OTTAWA, Wednesday, October 4, 2017
The Standing Senate Committee on Human Rights met this day at 11:34 a.m. to study the issues relating to the human rights of prisoners in the correctional system.
Senator Salma Ataullahjan (Deputy Chair) in the chair.
[English]
The Deputy Chair: Good afternoon, senators. Before we do anything else, I would like the senators to introduce themselves, starting with the senator on my right.
Senator Poirier: Rose-May Poirier, New Brunswick.
Senator Pate: Kim Pate, Ontario.
Senator Hartling: Nancy Hartling, New Brunswick.
The Deputy Chair: Thank you, senators.
Today we will continue discussing the issues relating to the human rights of prisoners in the correctional system. For our first panel, we welcome Nancy Wrenshall, appearing by video conference. We’ll ask you to give your statement and then senators will follow with some questions.
Nancy Wrenshall, as an individual: Thank you very much for the opportunity to speak with you.
I gather your area is rather wide ranging as the human rights of prisoners covers a lot of ground. I will speak primarily to three things: sentencing for women, community support, and the Bangkok Rules.
Sentencing for women prisoners, in particular, compared to their male counterparts is an area where there are significant differences that need to be looked at. For example, women who kill their husbands, specifically abusive husbands, tend to get life sentences in this country, whereas men who kill their domestic partners tend to get sentences of five to ten years for manslaughter.
It’s something I have witnessed working in corrections for 30 years on both the men’s side of corrections and the women’s side of corrections. It’s an area that’s completely out of sync, particularly now that the rules have changed where anyone convicted of murder has to spend the first two years of their sentence in maximum security.
A person who has no criminal record ends up in jail for murder has to spend two years in maximum security because there’s no ability now for the wardens to override that sentence. That was removed by Correctional Service Canada policy. You have many women who are spending two years in maximum security for no reason other than the fact that they’ve murdered or killed their abusive partners. In the more than 17-plus years that I worked with men’s corrections, men got manslaughter charges for killing their female domestic partners.
In many cases it is because men are in a better position to hire better lawyers. Also, my personal opinion is that I suspect courts tend to look at men who commit violent acts very differently than they look at women who commit violent acts.
That’s one area where there’s great concern and it needs to be looked at more. I know there have been a number of areas. There was an initiative to look at women who had killed their partners through domestic abuse. Some women were actually released for this, but I also know of many women who have gone to court several times to try and have their convictions overturned because once you’re convicted of murder, as you know, you have to appeal both the conviction and the sentence. They’re not denying that they killed their partner but they’re saying, “I had a good reason to.” They didn’t see any way out.
I’ve also personally witnessed the National Parole Board make really stupid comments like, “Well, you fought with your partner in public.” I can tell you, as someone who has personally been the victim of domestic abuse by my ex-husband, a Royal Canadian Mounted Police member, that the only place that is safe to fight with your abusive partner is in public. You have National Parole Board members who don’t know that, saying that to someone who is serving life for murder and accusing them of picking fights. You have people responsible for the release of these women asking those kinds of questions.
By the way, this woman has been out, in this case, on full parole for more than 10 years. She has never breached her parole and never committed another offence. She is running a successful business.
The next thing I’d like to quickly talk about where I think there’s an inequity that needs to be addressed is community support. Community support is lacking for both men and women. Where I think Corrections falls down is where they don’t consider adequately the differences that a woman faces when she’s released and that a man faces.
Again, having worked in both women’s and men’s corrections, men’s families stick with them when they come to jail. Women’s families, and the men in particular, do not. Women have responsibilities for children that stay with them. In men’s families, most times the wife often sticks around and cares for the children.
When mom goes to jail, if she hasn’t extended family care for children, she’s often faced with having to go to the provincial child welfare agency to fight to get her kids back. If she has been fortunate enough to have extended family to take the children and take care of them while she’s in jail, she’s then faced with being a single mom, finding employment or having to live on welfare.
I don’t think Community Corrections really knows what to do with that or how to support the women adequately when they get out. There’s a huge difference between dad rejoining a family and mom starting up the family where she left off.
That brings me to the third piece of what I want to speak about, and that’s the supplemental rules for the treatment of women prisoners, also known as the Bangkok Rules.
There are actually two specific rules that speak to mothers: rule 63 and rule 64. Rule 63 talks about mothers not going to jail. I don’t think our courts know anything about that. Rule 64 talks about there being facilities in jails for pregnant women and mothers.
Canada’s a signatory to the Bangkok Rules and federal corrections has made it so difficult for moms and babies to be together that we have very few mothers and children who are together in jail now. It used to be that it was relatively easy. It’s now almost impossible for mothers and children to stick together and be together.
In provincial corrections it’s almost non-existent. In fact, there was a court case won in British Columbia not that long ago. Since then they’ve actually had one child, even though women have won the right to have their children with them. They have a full facility to do that for one child. It’s not for the right of the mother. It’s for the right of the children that they won that court case.
If you take a look at places like Kenya, it’s automatic. Babies stay with their moms until they are four years old. There is no question. It’s the right of the children. Canada is so far behind on this issue that it is sad. Yet, we sign on and for many years we’ve touted ourselves as being a leader in corrections.
That’s all I have to say.
The Deputy Chair: Thank you. Before we move on to our next witnesses, we’ve been joined by two other senators. I would like them to introduce themselves.
Senator Ngo: Thanh Hai Ngo from Ontario.
Senator Omidvar: Ratna Omidvar from Ontario.
The Deputy Chair: Thank you, senators.
I welcome Mary E. Campbell, Sentencing and Corrections Expert, Former Director General, Corrections and Conditional Release, Public Safety Canada.
We’re also joined by Janet-Sue Hamilton, Retired, Warden, Edmonton Institution for Women.
Thank you, both of you. We’ll have your statements, to be followed by questions from the senators.
Mary E. Campbell, Sentencing and Corrections Expert (Former Director General, Corrections and Conditional Release, Public Safety Canada), as an individual: Thank you very much. I’ll certainly try to stay to the five minutes.
I started thinking about this with a couple of sentences from Senator Munson when this study was first announced in the Senate. He said:
The whole idea is about rehabilitation. Somewhere along the way we may have forgotten that part.
He went on to say, “something wrong is going on.” Those words spoke to me.
In assessing what is going right and what is going wrong, it’s always crucial to always distinguish between legislation and practice because the problem may be in one or the other. It may be in both, but you absolutely have to figure out what it is you are trying to fix.
Good legislation unfortunately doesn’t always translate into good practice. We saw that within about a year of the CCRA coming into force. You really have to always keep that split in mind.
I was one of the creators of the CCRA, so I’m happy to answer any questions about anything you’re puzzled about, why something is the way it is, or why it was written that way.
Bear in mind the CCRA fixed problems from the 1970s and the 1980s. It’s really crucial to know there were a lot of things we were fixing then. It was very good for its time and I think it was very enduring. It is still an excellent correctional statute but it’s 25 years later and the world has changed. There are things in it that need to be changed.
Just about two years ago precisely, on October 25, I wrote a six-page document with 55 bullets of priorities for the new government in corrections. You’ll be relieved to know that I will not go through all 55 today, but if you’d like me to, I’d be happy to.
I want to speak briefly to three priorities today. The first one is legislative updating. That’s a bit of a cheater because it’s a basket kind of priority, but there are specific examples in the legislation that need work. One of them obviously is segregation, which desperately needs to be updated. Parole conditions is another aspect of the legislation.
I had the opportunity to write a whole new corrections act for a province earlier this year. I relied on the CCRA quite a bit, but I relied on a lot of other documents. You’ve heard reference to the Bangkok Rules, for example, and the Nelson Mandela Rules. I’m quite happy with that model act that I wrote. I would be very happy to see some of those changes in the CCRA.
A huge issue in this is moving items from policy into the act. This was a priority in 1992. There was far too much in policy that should have been in the statute. These are fundamental issues. I get very passionate about this because fundamental issues of rights and obligations should be in law. They should not be drafted in a boardroom down on Laurier Avenue. You have no opportunity to review them. You don’t see them. You don’t know what is going on.
Those things in policy should be in the law that’s created by Parliament. We have now got to a point where we’re really right back where we were in 1992 with so much in policy. A lot of what’s in policy contradicts or goes beyond what’s in the law.
I wish I had a nickel for every time someone has told me, when I complain about something, that it complies with policy. My response is always, “Yes, but does it comply with the law? Could we talk about that?” As you can tell, I’m very passionate about that issue.
The second priority is more resources for accountability and review. I know CSC will say they have reviews coming out their ears, but a couple of things are needed. I don’t know if you realize the Correctional Investigator has jurisdiction not just over inmates but also over parolees and parolees’ interaction with their parole officers.
The CI has never been able to do any work on that side. He doesn’t handle complaints from parolees because he doesn’t have the resources to do it. If you want to talk about the wild west, there are very good parole officers out there trying to do a good job, but I’m telling you it’s an area that escapes scrutiny. Parole officers can issue instructions to flesh out the conditions and some of those instructions would make your hair curl. Inmate access to legal assistance is part of accountability. Imagine trying to get a lawyer if you’re doing time. We can talk about how hard that is.
The third priority, and I’m going to be completely blunt here, is that new leadership is required at both agencies. I know you don’t control that but you have enormous influence. It is my view that you can recommend anything you want in the world and it won’t happen unless this one happens.
That new leadership has to be educated appropriately to the job, university educated, trained in human rights, trained in criminology, and open to best practices from other agencies and jurisdictions. That third priority is absolutely crucial.
Thank you. I’m happy to answer any questions.
The Deputy Chair: Thank you. We’ll go to our next presenter.
Janet-Sue Hamilton, Retired, Warden, Edmonton Institution for Women, as an individual: First of all, I want to say hi to Nancy Wrenshall. I haven’t seen her in many years. We’re both retired now, ex-wardens.
I have four areas I’m going to briefly touch on. Mine are more from an operational point of view as well as my own personal values.
The first is on theCreating Choices document. I’m presuming most of you know what that is. That document was used to found women’s prisons in Canada. There were five key principles within the document that we tried to live up for women: meaningful choices, respect and dignity, empowerment, supportive environment and shared responsibility. We expected staff to live that vision as well as offenders to hopefully buy into that vision.
I want to talk about the UCCO environment. It’s almost a bad to talk about the union, but in my view it’s something I couldn’t come here and not talk about in terms of how we managed women offenders as well as male offenders. I did work in men’s institutions as well as women’s. I saw the wrath of UCCO when I worked at Edmonton Institution for maximum security men in terms of how it was managed there. Then I faced it again at EIFW once they got into the fold of becoming active members within UCCO.
In my view the main focus of UCCO is static security. For those of you who don’t know what static security is, it means all the bells and whistles of locked doors, searches, pat-downs, drug tests and those kinds of things, with cameras everywhere.
Whereas, in our view, when we developed Creating Choices we wanted what we called dynamic security, where you actually get to know the offenders. “Oh, my God, why would you want to do that?” The reason we wanted to do that was that you can manage offenders a lot better if you know their history, if you get to know them, and they develop a relationship with you. That’s why I think the women’s institutions worked so well in the beginning.
The role of the primary workers in women’s facilities was to connect with the offenders and actually have an interest in terms of helping them develop a correctional plan for each individual offender and working with them to get them back into the community.
That role has now changed. We used to have separate training for the staff who worked in the women’s facilities. Now they’re joined with the men in core programming. They get a different perspective on how to work within Corrections.
Case management is also done by primary workers. That has all changed since we opened the institutions. Now it’s all done basically by parole officers, so there’s no link or not much of a link left between the primary workers and case management.
The biggest frustration for me, working at the women’s prisons, was that the role of UCCO intensified to the point where we started those facilities wearing no uniforms. There was no differentiation between the offenders and the staff. That has now gone. The staff wear uniforms.
The staff referred to themselves as primary workers. Now they refer to themselves as correctional officers, even though they are hired as primary workers. They now wear stab-proof vests. I don’t know the last time a staff member has ever been stabbed by a woman offender, to be quite honest. Anyway, everybody has to wear one now because that’s something that was instituted. There are cameras on almost corner of the institution now where there didn’t used to be cameras on every corner of the institution.
The flavour of the women’s institutions, I’m presuming, is probably the same as the men’s although I haven’t been there in a while. I’ve been retired for seven years. The culture of fear and intimidation by UCCO has not gone away. If anything, it has worsened. I wanted to talk about that today.
Then I wanted to talk about secure units. In the Edmonton Institution for Women there is a unit for maximum security offenders. Our unit there housed 15 women, and then we had four segregation cells. It wasn’t a really big unit, but I think it was the biggest one in all the women’s facilities.
Movement activities in those units became very restrictive because of the way the unit was designed. It wasn’t designed to be inclusive. We had three separate pods of five women in each pod, and you couldn’t mix those pods. That was something that sort of evolved.
I was not part of that, but when I went to EIFW the culture said, “You can’t mix those populations.” In hindsight, I think that was ridiculous because in the men’s institutions we absolutely do. Ms. Wrenshall would probably attest to that. You don’t segregate the offenders in a maximum security unit. Normally, you let them take programs together and then make sure you have the security in place so that there are no issues.
The four segregation cells were always full. Our segregation seemed to be full all the time. If you had more incidents where you needed the use of segregation cells, we had nowhere to put people. It was very difficult to manage. People say, “How on earth did you manage those units?” It was with a lot of difficulty. It was like musical chairs, trying to make sure people were safe but that you didn’t restrict them so much.
The big one for me was management protocol. Senator Kim Pate certainly knows about that. She and I have talked about that on many occasions. That was a new initiative that came into the women’s facilities where we were told to manage women in a certain way.
In my view the management protocol was brutal. When it was implemented the first thing I said to the powers that be was, “We’re going to be sued one day.” I said, “I think this is inappropriate in terms of the restrictive movements of people who are on this management protocol.” Also, their ability to get off the management protocol was extremely difficult. That was a big burr in my backside in terms of how I managed women at EIFW and how I tried to manage within those guidelines.
It also labelled the women. If the women were put on what they called the management protocol, they were looked up to by other offenders. They were the worst of the worst. They had to live up to this new reputation. They were on the management protocol, so they had to show, “I’m not as bad as you think I am.” It was very difficult to move the women away from that culture.
I remember the segregation cells were no further than 10 feet from the shower. When we moved a woman to shower, we had to put her in leg irons, handcuff her and walk her 10 feet to the shower. It was ridiculous in terms of the way, in my view, we managed that, but that was the policy. If we tried to stray from that, the union would be on you unbelievably, saying, “You’re not following the policy. You need to handcuff them. You need to shackle them.” It was a very difficult time to be managing those kinds of cases.
I read an article that I talked to my staff about. It happened in the States, in California, I believe. It was a policy called no-touch torture. They had certain prisons where maximum security male offender never had any physical contact with anybody. They never talked to anybody. They just isolated them. Everything was done electronically. The food was put in a food slot. The guards walked away. They would never talk to the person. They would press a button, and the food would go in and the food would come out.
When they went to exercise, they unlocked the door. They walked down a hallway where there was nobody else into the exercise yard and back to their cell. They are suing the government in the U.S. because they’re saying if they weren’t crazy when they went in, they were crazy when they came out.
That really resonated with me. I’m not saying we were doing that but it certainly opened my eyes in terms of how we wanted to work with women offenders. With this management protocol, there was no physical contact with those offenders.
I remember one case where I was challenged because I allowed one of the management protocol women to see her daughter and be able to hug her daughter. The staff said, “No, it’s not allowed.” I said, “Do you know what? I’m going to authorize this.” I allowed that to happen, but I kept thinking about this no-touch torture article I had read in the paper, thinking it’s inhumane. I just wanted to bring that up.
In terms of delivering programs to women who are on the management protocol, at the time you had to deliver a program through a food slot. If I were delivering dialectical behaviour therapy to an offender, for example, the behavioural counsellor would have to sit on a chair and talk to them through a food slot.
Those are the kind of barriers we were facing in terms of working with the offender population who were in segregation and on the management protocol. To the layperson it sounds bizarre, but when you’re trying to manage a prison it was very difficult.
We also had population issues. We were full to the rafters. We had a main population of about 120, roughly. If we had an incident in the main population where we had to segregate somebody or change the security level, I had nowhere to put them. It’s not as easy as saying, “Keep them in their house.” There were no barriers in the houses in the women’s sites. They were free to come and go out of the houses. To move them into restrictive environment was not something that was easy to do.
That was always something in the back of my mind. How do I manage this? How do I make sure the woman is safe if she’s suicidal? I have nowhere to put her, but I have to put her in segregation because she’s suicidal. That in itself is not the right thing to do, but sometimes you are forced to do that in order to keep her safe and watch her on a camera.
I wanted to talk specifically about Aboriginal programming because we did manage to do some good things. Thankfully these days we have elder-assisted hearings at the National Parole Board. Some of you may know Kathy Louis; I know Ms. Wrenshall knows her. She was the first Aboriginal women to be a chair of the National Parole Board in B.C. She is an Aboriginal woman from Alberta with whom I happen to be very good friends. She initiated Aboriginal elder-assisted hearings in B.C. It has become a model that they use across Canada today. I’m very proud of what Kathy did. We certainly benefited from that, and so did the women.
Turning to ceremonials, smudging became an issue. We couldn’t smudge the Aboriginal women in a secure unit because staff complained about it causing them allergic reactions. Yet, staff could smoke down there; so could offenders at the time. It was one of those things you’re trying to balance whether or not to take action on. Then the no-smoking policy came out, so it almost became a moot point, but we did have an Aboriginal room where they could go and smudge. Moving them into that room if there were in management protocol was extremely difficult. You would have to lock down that entire unit and bring her into the smudging room in shackles and handcuffs for her to smudge with an elder. It was difficult.
They have what they call a warrior program for women. It is one of the programs they developed and instituted. We have Aboriginal liaison officers who work specifically with our Aboriginal population. We have a Pathways house which is all Aboriginals. We have an elder assigned to that house as well as native liaison officers.
A new program just came out. I don’t know if anyone is aware of. It’s called the White Bison wellbriety program. I believe it originated in Montana. It’s a model now being developed to be used in Correctional Service of Canada institutions. It was slow to get started, but there is one program. From what I’ve heard, it’s very positive.
There are very few employment opportunities for women even at our site, even in terms of working within the institution. The big issue for me is the lack of staff awareness around Aboriginal issues and Aboriginal culture and sensitivity. We have made some strides in that direction, but in my view we have a long way to go.
The last area I want talk about is mental health. We have all heard about that in the media. We have a Hummingbird house at the Edmonton Institution for Women that delivers a program called dialectical behaviour therapy. That’s very successful, but it’s a very small unit. I believe it only houses eight women. We’ve seen success with that.
At our site we developed a program for a transition house when I was there because we had many women coming out of our maximum security unit who were being preyed upon in the population because they had mental health issues. We had nowhere to put them, so I developed our own house that we called a transition house where they could be safe. Even if they had mental health issues, we could work with them until we could get them into the Hummingbird house.
We weren’t funded for that. We developed our own model. I found the money from within to make sure that program worked. It was very successful. They yanked the funding I had managed to grab from other places and said, “You have to find more money somewhere else.” Thankfully today it’s still operational in terms of the transition unit. It became a model for the other institutions to try to form their own transition units.
We have two or three psychologists on board. We have a psychiatrist who regularly goes to the institution, but none of them have any background in working with Aboriginal women and none of them are Aboriginal. For me that’s a huge issue.
The last item I want to talk about was the Regional Psychiatric Centre, which is supposed to be a place where you can send people when they have mental health issues. They will only accept what they call an Axis I diagnosis. If a woman has gone into a mental illness crisis, if they’re not certified as psychotic, schizophrenic or manic depressive, you can’t send them there. It was very hard to get them to agree to take an offender from our site unless they met that diagnosis. When they got there, there was no programming or very little programming for them.
I lived through the days of Ashley Smith, whom I’m sure you all know. I testified at her coroner’s inquest. I did an investigation where she was assaulted at the Regional Psychiatric Centre on three different occasions. To go through that investigation and then hear the end result that she died in custody was devastating, to say the least. Then I heard that Kinew James, another Aboriginal offender, had also died in custody at the Regional Psychiatric Centre. I had her at my facility on many occasions. I had developed a relationship with her in terms of making sure that she was okay because she had some mental health issues. Those two incidents definitely marked my opinion about how we were managing offenders in general.
Lastly, most of the women coming into our sites are very open about their issues. They had serious health issues, whether they had hepatitis C or HIV because they came from a lifestyle where sometimes those things happen. They came in with addictions and post-traumatic stress issues. The list goes on and on. We don’t do a good job of working with them in terms of all their issues and being inclusive. That’s all I have to say for today.
The Deputy Chair: Thank you. For the benefit of our viewers, before we go to the senators’ questions can you tell us about the management protocol? Our committees are broadcast live. Could you explain it for those viewers who might not have an understanding of the management protocol?
Ms. Hamilton: Sure, and I’ll ask Ms. Wrenshall to jump in here. It has been seven years for me so to try to recollect everything around the management protocol is difficult. When we were managing women in segregation prior to the management protocol, we had some flexibility about whether we decided to handcuff them or put them in leg irons when we were moving them. We had the flexibility to have them sit in a room with a psychologist for counselling. We had the flexibility to allow them to have certain things in their cells like a TV, a radio, personal effects, and those kinds of things.
When this management protocol was implemented, it said you can’t do any of those things unless they meet specific things.
The Deputy Chair: Senator Pate has a question.
Senator Pate: I’m very sorry to interrupt. If it’s okay with you, Ms. Hamilton, I could go through a couple of points, and if you agree you can say yes.
My understanding is that it first was generated by the Union of Canadian Correctional Officers. In fact, the first management protocol list was on union letterhead from the institution you were warden of.
Ms. Hamilton: I don’t know whether they actually helped write the document, but they definitely were pushing for it.
Senator Pate: The first copy I saw was on union letterhead and then it was later in CSC policy which speaks to the issue that Ms. Campbell raised as well.
My understanding is it was put in place and led to a number of physical changes to the institutions: more security, more of what you called the no-touch torture for those on the protocol.
My understanding, Ms. Wrenshall, is that you were instrumental in reviewing that process and recommending that it be ended because of the nature in which it violated the law and CSC policy up to that point. Is that correct?
Ms. Wrenshall: Actually, I’ve reviewed it several times as part of a union/management committee and the final review that recommended it be terminated.
It was started back in the early 1990s. I think there was a total of seven hostage takin. It was developed as a set of guidelines. It was never a policy. It was a set of guidelines meant to address a total of two or three women who were involved in a number of hostage takings.
Senator Pate: I am sorry, Ms. Wrenshall. My understanding is it started as a result of incidents at the Saskatchewan Penitentiary, where women had been moved. They were encouraged by some men to engage in a certain behaviour in terms of taking hostages to get some of the programs they were seeking. There were first staged hostage takings, then real hostage takings, and then the recommendation from the union for the management protocol. Is that your recollection?
Ms. Wrenshall: I don’t recall any recommendations from the union. I can’t think of the people who were involved specifically, but national headquarters responded.
Senator Pate: I’m sorry I keep interrupting you. It is because you can’t see me but I can see you.
Ms. Campbell, you may be able to confirm that Corrections was in fact moving toward what they called a series of regime programs. It wasn’t just the union but they were certainly, as you indicated, supported by the management of Correctional Service of Canada. In fact, when they tried to implement it for men, many organizations, groups and men rejected it, but then it was implemented for women. Am I correct in that?
Ms. Campbell: Yes. Around that same time, for people who weren’t familiar with regimes, which was the talk for quite a while, it was sort of a system of punishment and reward to try to change behaviour.
The research behind it showed that in theory it could work, but in practice it’s very difficult. You’d have to be almost a complete expert to run that kind of program, and the management protocol was part and parcel of that whole movement.
Senator Pate: I think that helps.
Ms. Wrenshall: I was working on the men’s side of the house when discussion around regimes came up. Fortunately, we never went there with the men.
As I was saying, the management protocol was developed as a set of guidelines. One of the things we found when we did that final review was that many of the sites never looked at them as guidelines. They looked at them as policy and responded to them as policy. In fact, they thought they were rules and that’s how they applied them.
When I listened to Ms. Hamilton, in all due respect, say that we had to do this because that’s what the management protocol said, no, it never said you had to. It said these were guidelines. Every site interpreted them a bit differently, partly due to the physical structure. Each of the women’s sites were built differently because they were all opened at different times. Each of the maximum security units in the sites were different, built differently, and required different responses because they were all a bit different.
I don’t know if that answered your question.
The Deputy Chair: Yes, it did. We have viewers who might not know what the management protocol is. I thought, before proceeding with questions, it was better to get a clarification.
Senator Omidvar: Thank you to all the witnesses for giving your time, knowledge and expertise.
My question is for Ms. Campbell. I was struck by what you said, that we must distinguish between legislation and practice, legislation and policy, and that fundamental issues of law must be in statute, not simply in policy.
That’s a very important observation. It seems to me, from what I’m hearing from the other witnesses, there is a big gap between law, on the one hand, policy on the other, and practice. I’m hearing about variations in practice and about variations in interpretation.
My question, Ms. Campbell, is: Have you actually reviewed the policies and the practices? Can you recommend to this committee what should be in the statute, what specific policies should be moved up into statute?
Do you have a paper on it? That would be very useful for us to have at this committee.
Ms. Campbell: Thank you very much, senator, for your interest in this point. I agree that it is crucial.
I don’t have the institutional experience of my colleagues but, more often than not, I would go to an institution and a staffer would be explaining something. They would say, “That’s the law.” I’d be saying to myself, “Don’t say that to somebody who wrote it. That is not the law. That’s a policy you wrote last week and you can change it tonight.”
The difficulty is not so much in identifying what should be moved. At this point it’s quite a volume of work. At CSC, you have commissioners’ directives, the bulk of the policy work, and the Parole Board has a policy manual. I’ve worked on specific issues where someone doing time complained about something that was in policy that completely contradicted the law.
I have hopes for over the next few months because retirement is actually not as quiet as one would hope. I would like to go through all of those policy documents and identify the areas where there are things that should be in statute.
I’ll give you one very clear example right here and now: segregation. There is a bill before Parliament that is very thin and there is a huge amount of detail in the commissioner’s directive. This is completely backward. There are fundamental issues about segregation in a policy document written three blocks away that should be in the statute. That’s one specific example.
I’m very anxious to sit down with those policy documents and go through them. I hope I can do it maybe at a time and place that would assist senators.
Senator Omidvar: That would be very useful if you could let us know about what your thoughts are.
Senator Pate: Thank you very much. I’ll go on for the second round, too.
I’d like to start first in the order that you presented. Ms. Wrenshall, at a forum at Simon Fraser University earlier this year you corrected one of the presenters about the number of times institutions have gone without segregation. You mentioned that when the Fraser Valley Institution for women was open for 18 months you were without the use of segregation. Yes, you were able to manage.
Could you elaborate a bit and talk about the kinds of dynamic security measures that Ms. Hamilton has spoken about as well? How do you manage individuals, prisoners, men and women, when you don’t have all of those static security measures?
Ms. Wrenshall: First of all, I’m going to correct you, Senator Pate. It’s Fraser Valley Institution. No “for women” because there’s only one Fraser Valley Institution. Sorry, I can’t help myself.
When Fraser Valley Institution first opened we didn’t have a secure unit. We only had the medium and minimum security houses for women. We had a two-cell trailer that we could use for very temporary accommodations if somebody needed a brief timeout.
It certainly wasn’t anything you could use on any kind of a long-term basis for a segregation unit as such. I’m trying to recall if they even had toilets in the little holding cells. I think they did but, as I say, it certainly wasn’t anything that could be used for long-term segregation.
I apologize now for the barking in the background. It’s dinnertime for the dogs.
If we had a major incident or anything that required long-term segregation, we had to do a federal-provincial transfer, which is not an easy accomplishment on a good day. We needed to find innovative solutions.
If it was two women who were fighting, first of all, they ended up right next to each other in our little trailer, which makes for tension. It also makes for having to resolve your differences rather quickly because you’re to be next-door neighbours for the next couple of days with somebody you just had a discussion with or a conflict with. It also makes for the staff having to work through those issues.
When you don’t have an easy fix, such as putting them in segregation so you don’t have a problem on your hands, it means that people have to resolve issues very quickly. I was also the warden of the Burnaby Correctional Centre for Women, which was the provincial facility that housed the federally sentenced women and provincial women. When I was there we didn’t have anywhere to send the women. We kept everybody.
Again, people come back into the population. It’s not like you transfer them across the country or anything. If there had been a staff assault or something like that, you work through it and the women come back into population and back to the staff. You don’t have the same kind of thing you have in the men’s facility where they go up the road to Kent or down the road somewhere else. You have to work through the issue.
In other sites in the federal or provincial systems they get rid of the problem quickly and don’t have to deal with the challenge of working through resolving the problem and finding a solution. The easy fix for them is to get rid of the problem. At the women’s sites you don’t have that easy fix. When you don’t have a segregation unit but have a little two-cell trailer in which you have very temporary accommodations, you’re stuck with having to find another solution for the problem.
You have to be innovative and think of different ways for discipline. You have to be innovative and think of different ways for getting that person back out into the population and dealing with the staff issue. It is the same whether it’s UCCO or not that says, “They should be out of the population; we can’t deal with this.” Well, you have to deal with it. There’s not a choice and you work through them. The staff realizes you have to work through them because the other option is not there. They may not like it but they have to deal with it.
Senator Omidvar: My question is for both of the former wardens, Ms. Hamilton and Ms. Wrenshall.
We’ve heard a bit about the culture of intimidation in the facilities. Do you believe that staff is afraid to accurately report the abuse they are witnessing? Can you outline to us what examples of retribution have been used to make everyone keep quiet, if that is the case? Have you ever personally been fearful of retribution in your roles?
Ms. Wrenshall: Personally, not for a long time. I started as a correctional officer working on the line back in 1981. I had one of my co-workers come to my house and tell me that I was doing too good a job with my reports and making other people look bad and feel uncomfortable. I sort of thought about that. Basically what I was told was that I should not work so hard, that my reports should be shorter and not so thorough.
Back as far as 1981-82, the pressure was on. That was well before UCCO and that kind of thing. I ended up saying to this person, who was another woman, actually, that it wasn’t my problem; it was the other staff’s problem. I had a personal level of professionalism I set for myself that I felt I had to keep. If other people weren’t comfortable with that, it was their problem and not mine.
I remember walking into a unit one day and the staff office was open. The staff member was nowhere to be found, so I went looking for him and then said to him, “You shouldn’t leave the office like that.” He literally went ballistic on me in front of staff and everyone else, calling me very rude names. I suggested to him quite politely that he needed to stop. I said, “If you don’t stop, you’re going to be in trouble.” He proceeded to continue so I left and he followed me out of the building yelling names at me.
Yes, I have experienced firsthand abusive behaviour toward me. Partly because I’m not one to tolerate it, I haven’t had my car keyed. I’ve heard of people having their cars keyed. I’ve been the warden of an institution where people have had their cars keyed. Yes, there certainly is intimidation and that kind of behaviour that goes on. I’ve heard of it and I’ve seen it happen. Some of it has happened to me, I guess. It depends on the sites. I think some sites are far worse than others.
Senator Omidvar: Thank you.
Ms. Hamilton: I absolutely felt it and saw it, specifically at the Edmonton Institution for men, a maximum security prison. The guards there were not happy that I was the first female warden. They thought I was a con lover. Within the first week of being there they wrote the MP and said I was fraternizing with convicts. That’s how my first week at Edmonton max went.
They stickered my car. I had a sports car that was full of UCCO stickers. They were all over it. They tried to set me up as having brought drugs into the institution. They started a rumour that I was bringing drugs into the institution.
I went to the Edmonton police and said, “This is what’s going on. I’m having an investigation.” Corrections sent another warden to the site to make sure I wasn’t in fact bringing drugs into the institution. They did an investigation to prove that I wasn’t. The Edmonton police were quite good. I said, “You need to make sure, if I get stopped one day and there’s crack cocaine in the back of my vehicle, that it’s not mine; it has been planted there.” That definitely was something I felt and witnessed when I was at Edmonton Institution for men.
We had correctional officers who stepped up to act as parole officers and UCCO was not happy about that. They put up a sign in this totally secure segregation unit. Nobody can get into this bubble. It said, “Wanted dead or alive,” and it listed staff members who had crossed over to become parole officers.
That gives you a flavour of what can happen in terms of fear and intimidation. I definitely felt it. In terms of abuse, I didn’t witness any abuse of offenders by staff. I certainly did a number of investigations to see if I could prove there had been abuse, but it was very difficult because the culture of ratting out another staff member doesn’t happen. If you do, you will be marginalized and isolated.
If there’s an incident and you’re not seen as being on the team, they will let you go down. They will not back you up. One of the worst fears in an institution is that your colleague doesn’t have your back if there’s an incident. That certainly is there.
When I did the investigation on Ashley Smith I actually witnessed videos of her being assaulted. Again, the staff rallied around the individual who perpetrated the main assault and had a fundraiser for him. The men grew moustaches in support of this staff member, even though he had assaulted an offender. There were slashed tires in the parking lot and other parking lot justice like keying your car, scratching your car, and that kind of thing. I didn’t witness that at the women’s site but I certainly heard about it at the men’s sites.
There’s a lot of fear and intimidation and people will not speak up.
Senator Omidvar: I know you’re talking about the facilities in Saskatoon, but do you believe this is more widespread and systemic in the institutions?
Ms. Hamilton: Yes, I absolutely believe that.
The Deputy Chair: I have a point of clarification. Do you feel that as a woman you were subjected to more intimidation, or do male wardens face the same thing?
Ms. Hamilton: I don’t think I was any different than any other warden, personally. I do think, though, it was a bit of a culture shock at the men’s institution because I brought a different management style in terms of how I worked with offenders. I actually wanted to talk to offenders. Imagine that.
It was certainly something they were not used to because usually the wardens never sat in on case conferences, where I did. I spent a lot of time going to segregation to interview male offenders because I knew they weren’t being listened to. They never had a voice. I needed to show an example to the staff that you need to talk to these guys to find out what their issues are. You just can’t keep them locked up.
The Deputy Chair: Thank you.
Senator Pate: Ms. Campbell, picking up on some of what you’ve already raised in terms of the manner in which CSC has limited the law, you have mentioned the need for some changes to the law. Even where the law is permissive now, for example in sections 4, 29, 81, 84, 77, 76 and 80 as well.
I apologize for the public, but we can happily provide those, just in the interests of time. I know that as one of the drafters you know what all those sections are.
How could this committee best assist the process of making observations or recommendations or doing something that might assist in breathing life into and implementing the Corrections and Conditional Release Act as a human rights document and as the human rights law we heard the Canadian Human Rights Commission speak about it being when it was first brought into place?
One of the recommendations that has been made outside of this process, as we were touring in the prisons, was that this committee or some committee of the Senate reconvene on an annual basis to assist in things like you have mentioned: the Correctional Investigator’s reports being aired or those sorts of things.
I know you’ve done a lot of work in this area. Do you have recommendations or ideas for this committee about how we might achieve that through the study being undertaken?
Ms. Campbell: You’ve referenced a few sections. Certainly two of them, sections 81 and 84, deal with the use of indigenous communities for parolees and indigenous healing lodges. Section 29 is the section allowing for transfer to hospital settings of people with mental health issues. When those sections were created they were as a result of the best thinking at the time. The thinking that went into the act was seven or eight years of correctional law review.
Sections 81 and 84, in particular, were not used for years. CSC didn’t go near them. The only explanation I have is that they would have to explain it. They were busy with other things. It wasn’t a priority. They didn’t know what to do.
With respect to transferring to hospitals there are other issues. Part of it is actually the relationship between the health community and prisons. It has been alluded to already that hospitals and psychiatrists set very clear rules about whom they are willing to accept and whom they consider to be mentally ill. It’s not necessarily what you or I would think would qualify. The issue there is a real partnership issue.
On the indigenous front, sometimes the question is whether a healthy community is ready, willing and able to take people back.
Why haven’t those sections worked the way they were intended? That’s worth exploring, but it is also worth exploring if they still have the right mechanisms now. You might want to talk to a few indigenous people in particular about whether sections 81 and 84 are still the right mechanism, or is there something new that should be tried? Rather than try to breathe life into them, is something quite different needed at this point?
The way you could make sure that some of these things are being implemented, of course, would be through something like a prison inspector function. That is one of the recommendations from OPCAT, the Optional Protocol to the Convention Against Torture.
Correctional Investigator was set up as a complaints-based office. They have done a great job. They have widened their scope a bit to undertake reviews of issues that affect all inmates, but it’s still primarily complaints based. A prison inspector has a function, as they do in the U.K., where they go in and actually inspect to make sure things are being done. They report and they work with the institution.
My own view would be probably that we need something more like a prison inspector function at this point. Why have there been no section 81 agreements from this penitentiary in the past year? Those are the questions to ask.
Again, it’s accountability and follow-up. You can’t just put it in the law or say it. There has to be the follow-up. If you’re doing time you may well be saying that you want to go to X indigenous community or do Y. Well, good luck. As the saying goes, “Who ya gonna call?” You have to get a phone first of all. You have to know whom to call. You want legal assistance to ensure that your rights are being respected to have that kind of opportunity. Do you have $10,000? That’s going to be the starting cost. Most people doing time don’t. They don’t know a lawyer to call. The lawyer doesn’t take their call.
The obstacles are formidable. It seems to me the state has an ongoing obligation, if you are to create these opportunities and requirements, to have some way to ensure that they happen. The CI does a tremendous job but, again, it’s based on inmate complaints. You need the wherewithal to even file the complaint, then follow through, and all the things that go with it.
Senator Pate: I have a supplementary question. Are you suggesting the inspectorate in addition to or instead of the grievance process, for instance?
Ms. Campbell: There’s a role for all three of those elements. The grievance process, in theory, should be a way of resolving things at the lowest possible level. Let’s work this out. I mean that’s the ideal. There has to be a mechanism, then, to go forward if that doesn’t happen.
The CI plays a role in that same stream of complaints-based processes, but it doesn’t replace an actual inspectorate function where they go in. Again, the U.K. model is a very good model, where they make some announced visits but also some unannounced visits to see how they are going.
Senator Pate: You didn’t mention it, but I’m wondering if you’ve given any thought to the recommendations of Louise Arbour around judicial oversight and the ability of prisoners. I am not ignoring or naive to what you’ve said about access to justice, the ability of prisoners to go back to court to have their sentences revisited in situations where correctional treatment amounts to mismanagement of the sentence.
Have you given thought to that as well?
Ms. Campbell: I have given it a tremendous amount of thought since 1995 or 1996. This was a recommendation Justice Louise Arbour made after certain events at the Prison for Women, as it was called. She recommended that the person should be able to go back to court and have the sentence reduced if the sentence had become more severe; if the person had been denied rights, suffered physically or what have you; or if the sentence was more severe than what the judge had intended.
That recommendation, of the all the recommendations, was the most difficult for public servants at Solicitor General Canada and Justice Canada. As you obviously know, it was the one that was not ever acted on because people found it challenging and really couldn’t wrap their heads around how you would go back to court and all of that sort of thing.
My own view on that is it is still worth considering. What makes me say that in a way is that many states in America that are now way more progressive than Canada, I hate to say, now have in place systems whereby they use the carrot rather than the stick once someone is released on parole. If the person does well on parole, they have the authority to actually shorten the sentence.
You’re kind of touching on a similar idea that in one case it is used as a reward for good behaviour, and in the other situation it’s potentially used as a remedy for bad behaviour.
I don’t have the solution or a definite answer. It’s worth considering. Courts are not always the best option, as you know, given court delays and everything else the Senate has spent a great deal of time studying.
I am not sure, but I think it bears a bit more thought. Ideally, there would be some accountability that would stop the abuse in the first place, so that you don’t have it and don’t have to face going back to court.
Senator Omidvar: You are insiders to the system and we’ve come to it, at least I have as a senator, through witness hearings and through testimony. I am keen. I understand, in the meantime, that rehabilitation is a preferred route. At the same time we also have to protect public safety.
My question is for all three of you. From your point of view, what kinds of community-based alternatives should be developed in order to effect rehabilitation? Are there different community-based models for different populations, such as Black prisoners or indigenous prisoners?
What have you seen that works well and what would you recommend?
Ms. Campbell: I could start by answering from my perspective and based on some research that we did. Close to half the population in custody is actually fairly low risk.
I understand that judges sentence people to custody for various reasons that don’t have anything to do with risk. They sentence them for denunciation, for example, or because the crime was so egregious. There are a tremendous number of people behind bars who simply don’t need to have this system of accountability that dates from the late 1700s, senator. Can’t we do better than something that we’ve developed in 1780 to respond to crime?
Yes, community alternatives would be very appropriate for a great many offenders. It allows people to be held accountable by giving back. There are a lot of people doing time who would be very happy to do that. It can be any kind of service to the community that allows the person to very publicly acknowledge that, yes, they did something wrong; they want to give back to the community; and they will stay on a path where they don’t repeat that offence. That takes a lot of collaboration with the provinces, municipalities, the private sector and social service agencies but absolutely it can be done.
When conditional sentences were enacted in 1996, the whole idea was the person could spend part of their prison sentence out in the community. Everyone was enthusiastic, especially judges. Judges were quite willing to give people conditional sentences, but do you know what? The resources weren’t there. Nobody in the courtroom was telling them what could be done. That was part of the problem. You can go in circles on some of these issues.
The short answer is yes, I think that approach is absolutely appropriate for a lot of people and we’re simply choosing not to do it.
Ms. Wrenshall: We’re choosing to spend $100,000 a year to federally incarcerate people but not spend that much in the community.
I would suggest a couple of things a little more specific to drug and alcohol treatment. I agree with Ms. Campbell that certainly restitution needs to be a part of it but, more importantly, the third piece needs to be drug and alcohol treatment and employment skills. It needs to be part of what goes on in the community because drug and alcohol treatment is key and employment skills are the other key.
I see too many offenders, women in particular, being released and they don’t have the supports around making the transition from the institution where they have lots of support around drug and alcohol treatment to very little in the community and no employment. “Okay, now what? I have taken some CORCAN training on how to make underwear, but how do I translate that into a job?”
There needs to be far more done in community-based programming in terms of how to get a job and how to keep a job, and something that will pay them more than minimum wage. If so many of these women are looking after families and whatnot, they need to be earning more than $12 an hour or whatever the provincial minimum wage is depending on where they’re staying.
We could do far more in the way of keeping people out of jail by directing them toward community-based treatment programs with an employment/education component built into it.
Senator Omidvar: I have a quick follow-up question.
Ms. Hamilton: I will add one other comment.
We do a good job at the Correctional Service of Canada. It may sound like I have been pretty negative toward CSC today, but there are a lot of good things that CSC does do. One is the success rate of people not reoffending when they leave our system. That’s 80 per cent, folks.
If you go to the States, their success rate is in the 40 per cent range. That means for every person that’s sentenced, eight out of ten never come back. That’s a pretty staggering statistic. That might have changed in the last seven years because I’ve been gone, but that’s the information I had when I was running an institution.
For whatever reason, some of them are managing to cope quite well when they get into the community. I concur with what these folks have already said about employment and those kinds of things that are critical in terms of their reintegration back into society. I want to make sure you knew that.
Out of the 20 per cent that reoffend, only 1 per cent reoffend violently. That’s something the public doesn’t hear. I wanted to make sure you knew that we are doing a pretty good job in terms of their not reoffending when they leave our system.
Senator Omidvar: Thank you for that information.
On the issue of rehabilitation and community-based alternatives, what experiences, observations or comments do you have on bringing victims and their families along?
This is the other side of the equation. In many crimes there is an individual victim and their family, but let’s just take this as an example. What has your experience been with victims and their families, in terms of promoting rehabilitation?
Ms. Campbell: This is a broad area. My experience has been that a few people who have been victimized react in the stereotypical way of wanting some revenge. It’s not a judgment that I’m making. That’s their response to it. By and large when you talk to most victims and their groups, they want something positive to come out of it, either for themselves or for society at large.
Some victims don’t want to talk about it again. They don’t want to be involved. They just want to get on with their lives. There’s quite a range when we talk about victims of crimes, but most people want something good to come from it. Whether it’s restitution or some kind of community service like cleaning up parks or what have you, victims are quite happy to see that being done.
One of the last things I did was a huge agreement. I know it has fallen apart now because you need a constant champion. I hope they don’t mind being named. Let’s say it is a huge organization that builds homes for people who need homes. It was a partnership between that organization and CSC. They were building some homes at penitentiaries called ready-to-move homes and moving them to the community.
It was predominantly men who worked on this. They loved it because they got to work on real skills in building houses. It was tangible. They loved the work. They loved the fact that it was a win for the community, that housing was being provided to people who needed it.
I had a vision there would be that partnership at every single penitentiary and every office of that organization across the country, and that every parole office would have parolees volunteering in the organization stores.
Everyone loved it. It was a complete win, but you need people who are committed to seeing that carry on. My guess is that it’s probably still carrying on at Stony Mountain and Rockwood, and that’s about it at this point.
The Deputy Chair: Generally when I chair a meeting I don’t ask a question, but I would like to beg your indulgence.
Ms. Wrenshall, you raised a very interesting point that when women are sentenced they are sentenced differently. How do we change that mindset? How do we change that?
Ms. Wrenshall: There needs to be a lot more education done with judges. It has been my experience, when I’ve spoken to both provincial and superior court judges, that they are woefully uneducated around women’s issues.
The Deputy Chair: We recently saw something, which I won’t get into the details of.
Senator Poirier: Thank you all for your presentations. I’m not a regular member of the committee. I’m filling in for somebody. I may be asking a question or two that you are all aware of but for me it’s new. I have a couple of clarifications I would like to make.
One is on the percentage that you talked about, the 80 per cent. Is that percentage just on women’s institutions or is that based on men and women both?
Ms. Hamilton: Men and women, yes.
Senator Poirier: You said it was seven years ago that you were there. Has that always been 80 per cent or is that slow growing? Can we say that today would be more than 80 per cent of the women?
Ms. Hamilton: I honestly couldn’t answer that. I don’t know the answer.
Senator Poirier: From the time that you started was it a gradual increase to the 80 per cent?
Ms. Hamilton: No, that was sort of the percentile when I first became a warden. We all had speaking notes when we went to talk in public and we needed to know what our stats were. Those are the status that I used whenever I spoke in public.
Senator Poirier: Deputy Chair Senator Ataullahjan touched on my other question, which is for Ms. Wrenshall. I took note of the comments you made about how the sentencing for women and men was different for the same crime, basically.
You also mentioned at one point that a lot of the men are in a better financial position to get a better lawyer. How much of an impact is that toward sentencing? I can’t imagine that there are two different laws, whether you are a man or a woman. I imagine the basic law for murder is the same for men and women.
Is the financial part a large part of the issue of why the sentencing is different?
Ms. Wrenshall: In my opinion, yes, it is. I think it makes a huge difference whether you’re dealing with someone who can afford a high-priced criminal lawyer versus someone who is depending on legal aid and someone who can’t afford a good lawyer.
Senator Poirier: At the end of the day, would not the judge be judging the same person? It’s the same law. What would you recommend?
Ms. Wrenshall: It’s not just always the judge, though. It’s quite often a judge and jury that is making the decision.
Senator Poirier: What would you recommend? What could be the solution to that problem?
Ms. Wrenshall: I’m not sure I have a solution. I think part of it is education. Part of it is ensuring that there’s adequate legal support for women who find themselves in situations where they have to go to court and require support, particularly around domestic abuse situations where they’ve had to defend themselves and they end up with a dead domestic partner.
Senator Poirier: And that would be different if it’s a man?
Ms. Wrenshall: I’m not advocating anyone killing their abusive or their domestic partners for any reason, but that has been my experience. I’ll give you a real life example. I had one fellow on my caseload who took a hammer to his wife and killed her because he was undergoing a lot of financial distress. He got six years for manslaughter. He was a well-off businessman who was in some financial difficulty and was under a lot of stress.
There is another example where this woman had been abused by her husband for many years and finally took a kitchen knife to him. She is serving life with a 10-year minimum. It’s hard to explain those differences.
Senator Poirier: I agree with you totally. It would be. Thank you.
Ms. Hamilton: I have one other comment. We’re finding with the women being sentenced that they’re asking for federal time. They will go in front of a judge if they have a drug charge, or whatever. They will say to the judge, “Give me federal time because I know I’m going to get more programming in a federal institution than in a provincial one.”
Judges are sentencing women to two years plus rather than one year plus a day. That’s why we’re seeing more women coming into the federal system. They’re asking for federal time and judges are granting it.
Senator Pate: Would it be your experience as well, based on working with men and women, that many of the women will have pleaded guilty in situations that you were speaking about, Ms. Wrenshall, in particular?
Certainly when Judge Ratushny did her review of the women who had killed abusive partners, the review you spoke about earlier, she found that one reason for some of those discrepancies, in addition to the ones you’ve raised, was that there was a mandatory minimum sentence and often the only witness would be the women’s children, if there were witnesses. They were loath to have their children called and many of them would plead guilty, even sometimes to second degree murder.
Ms. Wrenshall: Yes, they have a tremendous amount of guilt that they wear, too. Having been a victim of domestic abuse, you carry a lot of guilt with you.
Ms. Campbell: It’s a gender issue, but I think it’s also an issue of how we structure homicide and the penalties. I know this will be a radical thought for some, but if we were to do away with the mandatory minimum in homicide, we would get a lot more real justice and practical results.
I did a study of homicide. There are about 13 or 14 different ways we treat killing in the Criminal Code already. No one needs to get too excited about the idea that maybe we shouldn’t have a mandatory minimum for certain kinds of homicide.
Senator Pate: My final question was: If you had one recommendation, each of you, as to how to achieve the least restrictive measures and have people in communities, either prior to being sentenced or for reintegration, what would that recommendation be?
Ms. Hamilton: I would actually want a model where when people are sentenced they don’t necessarily go to jail first. They go to some sort of centre of healing. I don’t want to call it a treatment centre because that’s too easy, but where all the components of why they committed the crime are taken into account, specifically with Aboriginal people, to deal with the residential school issues, the murdered and missing women issues, the addiction cycle, the violence in the community, and the lack of economic programs in communities for people. If you combined all that in one place and a person could work through their issues, then they might not have to go to an institution. That’s what I would say.
Ms. Campbell: I would concur. With all the 55-plus bullets of priorities I have for the correctional system, it starts in the courtroom. A judge who’s a friend said, “The average sentencing is three minutes, Mary. If you make me do four minutes, you’ll blow my docket for the day and I won’t finish my docket.”
You’re sentencing someone in three minutes. What do you know about that person? Yet, when they go to Corrections they spend three months doing an assessment to find out who the person is and what the needs are. It really starts at the sentencing stage.
Ms. Wrenshall: I’m going to echo that. I think that three minutes is ridiculous when you’re impacting not just the offender’s or the prisoner’s life but the victim’s life as well.
The Deputy Chair: I want to thank Ms. Hamilton, Ms. Campbell and Ms. Wrenshall for taking the time to be with us today. We had a slow start but I think we could have continued for another half-hour.
We now have via video conference Kelly Hannah-Moffatt, Vice-President Human Resources & Equity and Professor of Criminology and Sociolegal Studies, University of Toronto.
I have to tell you that we are very excited to have you. We’ve waited a long time to get you to come before the committee. I thank you very much for that.
We’ll have your opening statement, to be followed by questions from senators.
Kelly Hannah-Moffatt, Vice-President Human Resources & Equity and Professor of Criminology and Sociolegal Studies, University of Toronto, as an individual: It’s a pleasure to be able to have the opportunity to speak to you today. I know a very wide range of issues are under your consideration today. I wanted to allow a maximum amount of time for you to ask questions on a range of issues that I could speak to you about, including issues of risk assessment and classification, history or issues with respect to vulnerable populations of women in prison, and indigenous women in particular, and practices of security classification and segregation.
I’ve been involved in a number of different cases and have done quite a bit of research over time. I think you have my curriculum vitae there, and I am certainly happy to answer any questions about any aspects of the research I’ve done in the past. I’d rather open the floor for you to ask questions and I can direct responses to what you would be most useful to you.
Senator Pate: Hello, Professor Hannah-Moffatt. How are you doing?
Ms. Hannah-Moffatt: Good. How are you? Nice to see you.
Senator Pate: You have done a lot of work on risk assessments and assessing the issues of classification, particularly for women and indigenous prisoners. I know you’ve also worked with the Parole Board of Canada.
You know that indigenous prisoners make up now 26 per cent of the overall population. For women, depending on which source from Corrections, it’s either 36 or 39 per cent in custody or indigenous. You also know that many of them stay in prison until their warrant expiry date or are released with severe conditions on their statutory release date.
Following the Canadian Human Rights Commission finding that the classification process was discriminatory on the basis of sex, race and disability, from your curriculum vitae I can see that you and Dr. Margaret Shaw did research on this classification process, which later led to Dr. Moira Law being hired. She examined the classifications based on the recommendations you and Dr. Shaw had made, as well as those of the Canadian Human Rights Commission.
We just heard from witnesses who were former corrections folks as well as others who talked about the fact that many of the prisoners were overclassified, in particular women and most particularly indigenous women and those with mental health issues.
Dr. Law recommended that the Correctional Service of Canada start every woman off, recognizing that most women are low risk, at minimum security and that they only be increased to higher levels of security if there are incidents that are bona fide public safety concerns.
Based on your research and the work you’ve done with Corrections and the Parole Board since then, what progress, if any, have you seen in this area and have you seen the implementation of Dr. Law’s recommendations?
Ms. Hannah-Moffatt: In general, I have done quite a bit of work following the attempts to look at the way in which gender based and ability affect security classifications and risk assessment more generally. I have not seen any substantial efforts being placed on attempting to implement the recommendations that Dr. Law put forward with respect to issues of security classification.
I’ve also seen a general tendency to defend the use of security classifications around issues that relate to reliability and validity of those tools without a fulsome discussion of whether or not those tools are appropriate for particular populations within the correctional system. Indigenous women, women and individuals with mental health issues are of particular concern, as are youth in some ways, and any woman or person with an intersection of those issues.
What’s important is to think broadly about this question in terms of why it matters with respect to security classification. Security classification is really important because it is a bit of a gateway in terms of access to programs and services in the institution, the ability to take those programs and services and have a significant impact on decisions about readiness for release or preparedness for release, and the ability to access secure programs that lead up to the eventual outcome of being released from the institution.
A lot of work that I’ve done over the last 20 years on security classification, some of it following from the work I did on the Arbour commission, has been to look at questions of race, gender and ability as they pertain to the criteria used in risk assessments. It’s my opinion that the correctional service and most of the risk assessment tools we routinely use have not sufficiently addressed the literature in this area and have not sufficiently looked at how women become overclassified, particularly indigenous women, as a consequence of this use.
The overclassification, as I mentioned before, has significant impacts. One that I can think of off the top of my head right now is around indigenous women and their access to the healing lodge or to culturally appropriate services. If you’re classified as maximum security, it becomes difficult to access those types of programs and services, which then makes it more difficult and fundamentally changes the shape of the experience of incarceration.
I think that’s a very important consideration. If everyone were to come in with a flat security classification, that could go some way to making sure that everyone has equal opportunity and access to programs and services and can be housed at facilities close to home that minimize geographic dislocation and are appropriate to the cultural needs they’re presenting.
Senator Omidvar: Thank you, Ms. Hannah-Moffatt, for joining us. I want to refer to the number of witnesses that we have heard to date who have talked about mental health issues being overrepresented in our prison system, and the fact that the manifestations of mental health and mental health behaviours are viewed through the lens of criminality and therefore treated as risks as opposed to mental health being a need for treatment. Apparently, this results again in the security classification that Senator Pate was talking about.
Can you comment on the current risk assessment tools that are deployed in the correctional services? Are they sensitive to mental health issues that prisoners may be facing? If not, should these tools be used at all and replaced by others? Where can you show us the way here?
Ms. Hannah-Moffatt: It’s a complicated issue in a lot of different ways. I want to start by taking a bit of a step back. The way in which we think about risk assessment in federal corrections is to think about static risks. They are factors that can’t change but are linked to recidivism and certainly behavioural outcomes that are seen to be problems.
Those would be things like your age, your record of offences, the type of offence you committed, and those types of issues. Then there are also dynamic factors, which are things that can change with intervention and time.
Frequently, when we’re doing risk assessment, we’re blurring the assessment of dynamic and static risk assessment. We’ve led into what we historically would have talked about in our mental health needs as dynamic risk factors.
We have a lot of slippage that goes on with the system at the very beginning point when we’re assessing somebody to be thinking about risk versus need. We talk about needs as if they’re risks. By framing issues such as mental health or personal emotional problems or certain trauma issues as dynamic risk factors, what ends up happening is that we don’t treat them sufficiently as needs, and we get into a mantra of security and intervention as opposed to one of support and accommodation.
A lot of what happens in the risk assessment process is to think about mental health in the context of risk assessment, which is frequently positioning it already as something that is risky and problematic, not necessarily something as a need.
We also find that in terms of mental health services in corrections there are a number of different and diffuse needs that individuals have. Frequently some behaviours that would be considered mental health issues are not framed as mental health issues. They get framed as behavioural issues and they end up working against individuals when they’re going to seek support or treatment.
The system is ill equipped, by and large, to deal with mental health issues for women, men and indigenous people writ large. We find a disproportionate number of people with mental health issues landing in segregation. I recently learned, through experiences looking at segregation litigation, that although there have been attempts post Ashley Smith and other places to have mental health reviews of prisoners who are independent of other forms of assessment and early on in the system, those things are not being operationalized within the system; that there is not appropriate support or follow-up with those issues; and that there is not appropriate training or staffing of institutions to deal with the complexity of needs being presented by the population at this time.
There’s also resistance on the many levels of cultural, systemically, et cetera, in terms of being able to tackle this issue, move forward and do things differently in terms of how you would approach the complexity of what it is that prisoners are experiencing at this moment in time.
Senator Omidvar: I really appreciate your clarification on static versus dynamic risk, but even the language you’re using is risk based. If we were to look at needs versus risk, do you think we could arrive sooner at alternatives to imprisonment if we used that needs-based approach?
Ms. Hannah-Moffatt: In some ways we need to arrive at alternatives to prison. We need to think of different holistic solutions. I use the language because it is the predominant language used within the system right now, but a lot of the risk-based approach tends to look at programming so that it has some measurable impact on the reduction of recidivism.
I understand the logic and importance of that, but it doesn’t allow us to look as holistically at individuals and what it is they need at different moments in time through the course of their experience of incarceration and upon exit and re-entry into the community.
Yes, we need to reframe how we think of things. We need to minimize the use of the term “risk assessment” and what it is we are assessing risk for. It has become a blanket term that describes a wide number of practices and gets used to justify a wide number of practices, frequently at the expensive of more holistic and creative dialogue about alternatives.
When it comes to mentally ill individuals, or people with a diagnosis of mental disorders, there’s a large spectrum by which people fall in terms of the severity and nature of those disorders. We absolutely need to think about how we can move people suffering from mental illness into facilities that are quick to deal with them in a way that is responsive to the needs they’re presenting as patients. This would be fundamentally different from how we respond to somebody when we’re responding to them as a prisoner.
We also need to think about issues such as self-injury and the needs people have around trauma or trauma-informed approaches and about how compatible is our custodial environment to meeting those needs and to helping somebody readjust into the community in a safe way that will keep them out of a position of vulnerability where they can be brought back into the system.
Absolutely, talking about needs can help. We don’t want to talk about needs to segregate them from risk. We want less emphasis on risk and more on needs and holistic approaches; less on actual aggregate measures of risk like to recidivism and more on asking basic questions in some cases.
What does this person need in the immediate environment? What do they need to flourish in this environment? How do we support their re-entry? How do we support them not coming back into a system that is not set up particularly well to deal with their issues?
Senator Pate: Were you able to listen to the witnesses who presented before you?
Ms. Hannah-Moffatt: No, regrettably, I wasn’t.
Senator Pate: One of the witnesses spoke about the differential impact on women who experience violence, those serving life sentences in particular, and the fact they tend to be overclassified.
Have you looked at some of the policy decisions Corrections has made that have impacted individuals, not just according to risk assessment tools, but where they’ve actually taken a public policy decision for individuals, for instance, on what is referred to as the two-year rule where people who come in on a murder conviction must automatically spend two years in security?
That is one. Could talk about the impact of that and link that to how the tools are used to either assist the implementation or frustrate the implementation of the legislation? I’m thinking particularly section 4 of the Corrections and Conditional Release Act that requires you to look at less restrictive measures consistent with public safety and rehabilitation; section 29 which encourages you to look at issues in terms of people’s health needs and allows for the transfer out to hospitals for physical as well as mental health needs; section 76 which requires the focus to be on the reintegration of prisoners; section 77 which requires particular focus in terms of programs, services and initiatives within prisons, including classification on women; similarly section 80 which refers specifically to indigenous prisoners; and sections 81 and 84 which allow for the implementation of community-based options for indigenous prisoners to serve their sentences in the community or to be paroled into the community.
I’m thinking specifically of the fact that those policies say it’s only for lower security people. Yet, the law does not specify that it has to be a certain security level. I’m sorry. There’s an awful lot there, but if you could comment on each of those that would be great.
Ms. Hannah-Moffatt: Each of these things has their own idiosyncratic piece to it. In general the two-year rule applies if you have committed a homicide and you end up classified as maximum security for a period of two years. It is not an empirically based decision. It’s very much a policy decision that was made. It doesn’t have a lot of evidence that would support the rationale for that kind of decision. Not only does it not have a lot of evidence in terms of the basis of that decision. It directly impedes many of the objectives you were pointing to in the sections of the CCRA.
In addition to that rule, you compound it with the fact that you’re using a security classification tool that has never fully adapted to the needs of indigenous people and has never fully adapted on a gender level in terms of being gender informed or appropriate for women.
It was a tool that was built largely for adult white men. Much of the criteria in there that leads to this determination of maximum security is based on research on that particular population, and even some of that can be systemically problematic.
Yes, something like a two-year rule simply for the type of offence you commit is very much ill informed when it comes to trying to achieve any of the other objectives. If you are a maximum security prisoner for a period of two years, it can very much impede the movement you have across institutions and the access to programs and services within institutions. It can put you in an exceptionally high secure housing context, which can make you vulnerable to a wide range of issues within the institutional context. It can also lead to a lack of access to programs that are indigenous specific. I already spoke to the access of culturally sensitive programs. It can have an impact on whether you’re immediately ready for or planning into release.
I think there are gender issues with respect to homicide. There are very different elements of women who commit homicides than there are others. None of those things get taken into consideration. There’s no nuance. There is no holistic understanding of the individual, his or her needs, and of how we plan forward for those things. Any delay in being able to move very quickly into a programming regime means that you’re also limiting at the end the ability to be released as soon as possible.
In terms of least restrictive it’s quite obvious. If you’re maximum security, then you’re restricted to housing units and accommodations in security levels that are consistent with being defined as maximum security. That often leads to a well-known historic fact that has happened for many women over time, which is overclassification and overly secure environments that are not necessarily facilitating their development and not facilitating their improvement in the system in any way, shape or form.
All of this matters. If you’re delaying access to programming, when it comes time to make decisions about release and you haven’t completed programming that your case management team feels is necessary to mitigate any risk you might pose if released into the community, you are easily disqualified from consideration in those ways.
We find that not only is it a matter of simple disqualification in that your case management team might not support you. If you haven’t taken the programs, had access to the programs or are at a particular security level, we also find that individuals, women in particular, will defer or waive their opportunities for hearings with respect to release because they firmly believe that if they haven’t done these things, or have had access to these things, they won’t be successful in the parole process.
There’s very little planning into the community. Ideally, best practices internationally in corrections will start planning for release at the moment of entry and you will have planning and continuity into the community. That doesn’t seem to be the practice at the moment.
I will qualify that by saying as an external researcher it’s often incredibly difficult to have a fulsome understanding of practices within the Correctional Service of Canada because of issues around transparency and access. What we do know, what we have seen, and what has been reported to us on individuals we’ve interviewed in various research projects is that if your case management team is not fully supportive of you, either publicly or in the background in terms of what they’re telling you, and is not moving you into programs or providing access to culturally appropriate opportunities or finding you unique and specific ways to be released into the community under the sections of the CCRA that allow for that kind of indigenous appropriate approach, then it’s not going to happen for many of these individuals.
I’m not sure if that captured what you were looking for.
Senator Pate: I was also thinking about whether it is still in the regulations. For instance, just to give a concrete example of this, the previous witness talked about women who are convicted of murder of abusive partners versus men who are convicted of murdering their partners.
You can confirm and provide us with an update on one of the things I believe used to be in the classification documents. It was a provision that when people were being assessed in those initial periods when they come into prison, those assessments included questions about whether there was ever any domestic violence in their circumstances. I can’t remember the exact wording now. Someone who was defending against or reacting to abuse, if it wasn’t self-defence, gets the same category as someone who was actually perpetrating the abuse.
Is that still the situation in terms of those risk factors?
Ms. Hannah-Moffatt: That is my understanding. We do know a lot about those risk factors, as you can imagine, from the work Margaret Shaw and I did. To a large extent it’s still valid today. We interviewed everybody across the country who filled out those offender intake assessments that contributed to making decisions which would lead up to a security classification. There was considerable inconsistency in terms of how those things were interpreted and applied across institutions and even across officers within the same institution.
Yes, you have categories that are relatively vague, such as the one you mentioned. To the best of my knowledge that is still there and is often up to the interpretation of the person doing the classification as to how much relevance to place on that whether or not they have the level of sophistication, understanding or training to adapt that to the context.
Frequently, we find for the most part that people are reluctant to change risk assessments, particularly if they will lead to a lower classification level. They’re not equipped to understand the dynamics between the different contexts of offences. Nor do they feel they have the autonomy to make those kinds of decisions.
Further, when we looked at the parole decision-making research I had done a few years back, not only did we see issues of domestic violence being treated the same as any other kind of violence, but when people are looking at the risk of violence they’re looking to see whether or not a domestically violent relationship or an intimate partner relationship existed in the past, whether or not you were passive in terms of that, or whether or not you acted in self-defence both in the moment and a future moment. Those are all seen as potential for you to commit future acts of violence, even if that relationship no longer existed.
Having participated in any type of violent relationship, as was the case with self-injury or having a mental health issue, would seem to escalate your potential for violence in the future. It’s very unclear to me what the empirical basis for some of those issues were. They were often devoid of context. When you read the information you can see somebody struck somebody as they came toward them with a lit cigarette or something else that was going to burn them, or their actions were such that they were fighting. Because you have somebody before you who is a prisoner convicted of an offence, those are seen as acts of aggression which then escalates the perception of you as having a future risk of being violent.
All of that plays into problematic assumptions about how we then make decisions about individuals. It starts right at the beginning, as you point out, in terms of the context of the security classification where there is a complete lack of understanding or appreciation for context. Not only does it relate to these issues around gender. There are fundamental issues for indigenous people in terms of how we use standard categorizations like number of offences, previous convictions and all other criteria that are heavily racialized and we know are racialized. Yet, we don’t take them into consideration when we do the classifications and then they lead to bias.
It’s almost like a black box model. A whole bunch of information comes into a box and gets calculated. It’s not quite clear what weight any particular factor makes. It comes out at the end with a high security classification or a maximum or minimum security classification, or with a minimum, high, medium or low risk. There is very little transparency and clarity on how we’re sure what happened in that black box. It doesn’t have discriminatory variables that lead to an outcome which can produce discrimination. We see that consistently across assessment tools being used in multiple jurisdictions. They are also being questioned in both the U.S. and Canada.
A lot of research has been done on gender in the context you’re talking about which has not been appraised by the Correctional Service of Canada in terms of the way in which they’ve been thinking about security classification, changing it, applying it, implementing it, or even looking at the sort of knock-on effects of it past the initial classification. Dr. Law’s research is an example of where there was an in-depth and fulsome analysis of what those variables were.
Some of that was done by me and Margaret Shaw in other contexts. None of that work, to the best of my knowledge, has ever been used by the service to look for a different system. It has always defaulted back to what we know or how we’ve always done things.
The Deputy Chair: I have two questions.
First, does the security classification impact certain female prisoners more than others, for example indigenous women and ethnocultural women?
Ms. Hannah-Moffatt: Absolutely. There’s no question in my mind that it’s true for a whole number of reasons. Not only do we have issues around technical contract validity like: Are we using the right measures in order to get the right outcomes? Not only do we have problems with respect to gender, which are very well documented in the literature, but when you intersect gender with mental health, ability or race, you compound the problem.
Race on its own or ethnoculturalness on its own will also create the same variables such as completed education, access to leisure activities, previous family histories with respect to personal issues and trauma, single parenting, and economic issues that might relate to whether or not you have debt or financial problems. All of these things, when you look at wider social information, social data or survey data, distribute differently among racialized populations and indigenous people and women versus men.
When you use those criteria to say that these things project recidivism, you are not taking into consideration the racialized context of those variables. You’re not taking into consideration some of the things much beyond the individual’s control that are systemic and structural issues.
I’ll give you an example that comes to mind out of the U.S. One of the things that’s very prominent in some of the Virginia Criminal Sentencing Commission risk assessment tools is postal code. We know that postal code is connected to race, access to services, access to opportunities, and a whole lot of things. Police and the level of policing in particular communities have an impact on who is arrested, who is charged, and who may or may not have access to a public defender in terms of their trial. All of those things are racialized. There’s lots of empirical evidence to show that, but variables like those ones end up in security classification instruments and tools and have a disproportionately negative effect on racialized individuals as they become classified.
We have an overrepresentation of indigenous women who are seen as maximum security. We also have an overrepresentation of indigenous people generally who are at higher security levels than others. That, coupled with a lack of appropriate programs, services and difficulties in accessing those programs and services, an absence of dialogue on alternatives and for the most part very little creative thinking, is not consistent with what would be best practice within this field generally.
The Deputy Chair: What recommendations could this committee make to improve respect for the human rights of federally sentenced women in federal institutions? It’s an open-ended question.
Ms. Hannah-Moffatt: There are many. It is important to come back to looking at why gender is important in these contexts, how gender intersects with indigenous and other ethnocultural issues, and how do they, together, intersect with issues of mental health.
In general, women are a very small proportion of the federal prison population. Historically and regrettably, as we said 25 years ago when I started doing work in this area, they are too few to count and it remains that way. It remains that we get standardized approaches to the way in which we manage and deal with the issues of women.
We know that equality is not equity, so it’s important for us to think hard again about this group of individuals in the system, which by and large are low risk and have low risk of reoffending. When they do reoffend it’s frequently a technical violation, which is a whole set of issues around parole supervision in the community and overconditioning. They are not committing new offences that are putting others at risk in general.
Some of the recommendations would be to go back to some of the very first principles of looking at issues of equity. How do we classify individuals? Does it make sense to do it? What are the best practices when we’re trying to think of the outcome, which is least restrictive measures, safe and secure transition into the community, and supporting somebody to move on into a different set of experiences than the ones that brought them into conflict with the law in the first place.
We also need to have a very close discussion of what are the particularities of mental illness and how they impact women. Why ought we be looking at trauma-informed approaches? What are the international best standards and practices? How can we implement those?
There are reasons. It may not be economically efficient to do things differently for women. It may be more expensive sometimes, but it’s a short-term, front-end costs for what I think is a good, long-term solution. We know discrimination, both systemic and otherwise, exists within our system and that kind of pulls back in.
If I were making recommendations to the committee, it would be to step back and start from the principle by saying that these are women. As women, and given who these individuals are and what they are bringing to the system, how do we best support them? How do we think back to some of the principles we have underpinning Creating Choices? Many of those are flawed in some ways. Some of the principles were very good.
Starting from women, starting from the position of indigenous women, starting from principles of least restrictive measures, and starting from the principle of making sure that we’re accommodating culturally on the basis of an agenda for individuals all through the system, that requires us to have a very fulsome look at the practices. It should not be in a way that simply justifies that what we do is valid, reliable or doesn’t seem to discriminate. Rather, in a very open way we should ask questions about how might we do this differently.
How might we be an international leader in this way? How we can engage people who do research on these kinds of questions that have been around this block for several years? It’s haunting to have lived through Creating Choices, the Arbour commission, the Ashley Smith inquest, and the many of the current pieces of litigation on segregation to see the exact same issues coming up over and over and over again. As somebody who has written a book that looked at the inception of imprisoned women and the inception of incarceration for women since they were placed in the Kingston Penitentiary, you can literally look at every single inquest and inquiry to see that the same issues repeat themselves.
From a human rights lens, it behooves us to step back and ask: How can we actually invest in making these practices different? Should we do them from an equity standpoint, not just from an equality standpoint? Should we educate people in the difference between equity and equality as we approach a number of these issues and understand fundamentally how they intersect?
One of the arguments you’ll hear on risk assessments is that you can’t do that because the population gets too small and then you will have all these unique, specific solutions for every little person. Perhaps that’s what is necessary in the circumstance. We should embrace the fact that we don’t have a massive population in this area and invest the resources into building creative solutions for individuals.
The Deputy Chair: Thank you, Ms. Hannah-Moffatt, for taking the time to be with us.
(The committee adjourned.)