Prison (In)Justice: The Canadian Context

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For a SURJ TO screening of the US prison documentary Thirteenth earlier this fall, I made a short factsheet on the incarceration and forced labour of criminalized persons in the Canadian state, an issue I’d been researching for a little while. I’m posting here a somewhat expanded version of that document, still pretty sketch-like, since a couple of friends were asking and maybe others will find it useful.

Prison (In)Justice: The Canadian Context

Mass incarceration in the United States is a well documented phenomenon, brought to the attention of a broad public through, for example, Michelle Alexander’s popular book The New Jim Crow, the Netflix original documentary Thirteenth, and Ta-Nehisi Coates’s celebrated long essay “The Black Family in the Age of Mass Incarceration.” By comparison, questions of carceral justice in Canada occupy little media space.
Is this because Canada’s prison policy is relatively unobjectionable? How do the Canadian and American systems of incarceration compare?
Basics by the numbers…
US
Population: 326 million persons[i]
2.3 million persons incarcerated (0.7% of pop.)[iii]
4.5 million persons on probation/parole (1.3%)[v]
Canada
Population: 35 million persons[ii]
41,000 persons incarcerated (0.1% of pop.)[iv]
112,000 persons on probation/parole (0.3%) [vi]
A fairly rosy picture of the Canadian system, at first glance. But…
Between 2005-2015, the Canadian federal inmate population expanded by 10% (the national per capita incarceration rate expanded by a similar margin).[vii]
In this period, the Aboriginal inmate population increased by over 50%; the female incarcerated population, by over 50%; and the Black incarcerated population, by 69%.[viii]
26% of federal inmates are Aboriginal, a group that comprises 4.3% of Canada’s population; 9% are Black, a group that comprises 2.9% of Canada’s population.[ix]
Over half of female federal inmates and 25% of male federal inmates have been diagnosed with a mental health condition (to say nothing of those undiagnosed).[x]
The above-mentioned expansion of the Canadian prison population happened largely under the federal Conservative government of Prime Minister Stephen Harper, which emphasized public security and victims’ rights, and which was voted out of power in 2015. But it isn’t clear that the Liberal government of Justin Trudeau has meaningfully reversed the carceral trends established by its predecessor. For example…
In April 2016, enacting “offender accountability” measures announced by the Conservatives two years earlier, Correctional Services Canada expanded the range of goods that offenders must purchase to include such items as soap, shampoo, deodorant, adult diapers, and feminine hygiene products.[xi]
Inmates are to purchase these items out of gross wages for full-time labour set at a maximum of $6.90 a day, and more commonly paid at $5.80 a day, wage levels that have remained frozen for 30 years (while the cost of consumer goods to prisoners has increased 700% in the same period).[xii]
Meanwhile, the average annual cost to the public of incarcerating one male federal inmate is $111,202—and twice that much for a female inmate.[xiii]
Labour in Canadian Prisons 
Canadian inmates are routinely given labour assignments, for which they’re compensated on a scale that ranges from $5.25 to $6.90 per day (not per hour!).[xiv] From these wages:
22% is deducted for food and accommodation.[xv]
8% is deducted for the Inmate Telephone System Administration.[xvi]
A variable amount is deducted for an Inmate Welfare Fund.[xvii]
Prisoners who aren’t given a work assignment, or who refuse such assignments—which, in principle, they’re free to do—are not charged for their food and accommodation. They’re granted a basic allowance of $1 per day.[xviii] From this amount, however, they have to buy such basic goods as are mentioned above—soap, deodorant, etc.—and pay for any phone calls.
Inmates thus have a material need to work while incarcerated, but their wages are fixed at levels well below the minimum wage in the prison’s jurisdiction—while their labour contributes to products sold at market value beyond prison walls.
Much of that commerce flows through CORCAN, an agency that Correctional Services Canada operates as a “key rehabilitation program.”[xix] Its mandate is to grant inmates vocational training; in the process of such training, CORCAN prison labour generates a range of commercial products and services, from military supplies to office furniture.
The main buyer of CORCAN products is the federal government. Prison labour produces goods for state apparatuses like the Canadian Forces, the Department of National Defense, and the Canadian Coast Guard, along with many not-for-profit and private sector clients.
CORCAN may indeed provide valuable training opportunities. Yet the agency is also now the subject of a court challenge from Canadian inmates, who allege not only that its wage rates are a violation of the Canadian Charter of Rights and Freedoms and the United Nations’ standards for international labour, but also that some inmates have been coerced into working, threatened with unfavourable parole hearings and even solitary confinement for refusal of CORCAN assignments.[xx]

The Future of Prisons in Canada
Shortly after Justin Trudeau was elected Prime Minister in 2015, he issued a directive to Justice Minister Jody Wilson-Raybould to explore restorative justice models: approaches that centre harm-reduction, rehabilitation, and mediation rather than retaliatory or incapacitating punishment.
Such models have been shown to produce lower recidivism and higher rates of satisfaction among both victims and offenders.[xxi] (That the far-right Rebel Media opposes the principles of restorative justice is less empirical but nevertheless persuasive evidence for those principles’ basic decency.[xxii]) Yet the phrasing of Trudeau’s letter leaves it ambiguous whether his directive applies only to the goal of lowering Aboriginal incarceration rates or to the operation of the criminal justice system as a whole.[xxiii]
In either case, very few concrete steps have since been taken in this direction. In April 2017, the federal Minister of Justice held an emergency meeting with provincial justice ministers to address unreasonable trial delays, an issue on which the Supreme Court cracked down in its 2016 R. v. Jordan decision, which led to the dismissal of hundreds of delayed cases across the country. At that meeting, areas targeted for reform included:
…mandatory minimum penalties, of which 60 were created by the Harper Conservative regime;[xxiv]
…unfair and poverty-punishing bail policies: there are more adults in pre-trial custody (unconvicted, innocent in the eyes of the law) than are serving a sentence in provincial/territorial custody;[xxv]
…administration of justice offences, which don’t enhance public safety and which represented 23% of all cases in 2014/15, at a cost to the public of $807-million;[xxvi]
…preliminary inquiries, which allow prosecutors and judges to assess if there’s enough evidence for a case to go to trial;
…and reclassification of offences.[xxvii]
The use of so-called “administrative detention”—solitary confinement—has also recurred as a key area for reform.
Yet the Jordan decision, which issued from the judicial and not the legislative arm of government (i.e. not from the people’s elected officials), remains the most significant effective change to the Canadian criminal justice system in recent years. The federal Liberals claim to be “undertaking a broad examination of Canada’s criminal justice system to ensure that it is just, compassionate and fair, and promotes a safe, peaceful and prosperous Canadian society.”[xxviii] But, to all appearances, almost two years into that government’s majority mandate, this undertaking remains little more than talk.
Where mandatory minimums have been repealed, this has been the work of the Supreme Court and provincial Courts of Appeal, not the government.[xxix] Indeed, Prime Minister Trudeau has said he believes there are “situations where mandatory minimums are relevant.”[xxx] And it’s not as if Justice Minister Wilson-Raybould has been unable or unwilling to take action on certain issues—politically safe ones. Her department is responsible for proposed legislation such as:
…Bill C-39, which cleans up “zombie laws” in the Criminal Code, provisions that the courts have deemed unconstitutional but that linger in the Code until legislators remove them, like the former offences of anal intercourse and abortion; and
…Bill C-51 (2017; not to be confused with the Conservatives’ 2015 security and terrorism bill of the same name), which introduces legislation to limit the admissibility of a defendant’s evidence and thereby increase the likelihood of conviction in cases of sexual crime, nested in a bill otherwise concerned with repealing such nominal offences as “fraudulently pretending to practice witchcraft”[xxxi]—what has been described by one prominent criminal defense attorney as “the perfect Harper Conservative justice bill.”[xxxii]
None of that legislation repeals Harper-era mandatory minimums, despite the Liberals’ insistence that they believe in evidence-based policy-making and the heaps of evidence suggesting mandatory minimums are ineffective at achieving their intended public safety goals.[xxxiii] None of that legislation limits the use of solitary confinement, or eases conditions of bail, or reduces trial delays, or expands the use of restorative justice or alternative sentencing practices, or takes any steps towards reducing the criminalization and incarceration of racialized, poor, and mentally ill persons.
The federal government has conducted a public opinion poll to evaluate Canadians’ appetite for repealing mandatory minimum policies, an approach that has been criticized for favouring the majority’s mood over evidence. A spokesperson for the justice minister had said that related legislation would arrive this past fall.[xxxiv] One can only hope that that legislation eventually materializes, and that it addresses more than symbolically the deep harms done by the existing legal and carceral apparatus.
The violence the Canadian state inflicts on criminalized persons may compare favourably to its almost unbelievably nightmarish counterpart in the United States. But the differences are largely of degree, not of kind.
Resources/To Learn More
John Howard Society of Ontario (provincial chapter of national service org for prisoner rehabilitation and reintegration): http://johnhoward.on.ca/
Canadian Association of Elizabeth Fry Societies (similar to John Howard Societies, but focused on women and girls in the prison system): http://www.caefs.ca/
Long Maclean’s investigative feature on racial injustice in the Canadian penal system, centering Indigenous over-representation behind bars: http://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/
Roundtable discussion in Upping the Anti journal on prison abolition in Canada: http://uppingtheanti.org/journal/article/04-prison-abolition-in-canada/
Critical Resistance (prominent US-based prison abolitionist org): http://criticalresistance.org/about/
Notes
[i] US Census Bureau: https://www.census.gov/popclock/
[ii] Statistics Canada: http://www.statcan.gc.ca/pub/12-581-x/2017000/pop-eng.htm
[iii] Prison Policy Initiative: https://www.prisonpolicy.org/reports/pie2017.html
[iv] Statistics Canada: http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14700/tbl/tbl01-eng.htm (adult data), and http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14702/tbl/tbl02-eng.htm (youth data).
[v] Prison Policy Initiative: https://www.prisonpolicy.org/reports/pie2017.html
[vi] Statistics Canada: http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14700/tbl/tbl01-eng.htm (adult data), and http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14702/tbl/tbl02-eng.htm (youth data).
[vii] Office of the Correctional Investigator: http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20142015-eng.aspx#fn1-rf; for national per capita incarceration rates, cf. World Prison Brief: http://www.prisonstudies.org/country/canada
[viii] Ibid.
[ix] Office of the Correctional Investigator: http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20152016-eng.aspx
[x] Ibid.
[xi] Ibid.
[xii] Ibid.
[xiii] Ibid.
[xiv] Correctional Service Canada (CSC): http://www.csc-scc.gc.ca/lois-et-reglements/730-cd-eng.shtml#s2c
[xv] CSC: http://www.csc-scc.gc.ca/lois-et-reglements/860-cd-eng.shtml#s2a
[xvi] CSC: http://www.csc-scc.gc.ca/lois-et-reglements/860-cd-eng.shtml#s2c
[xvii] Ibid.
[xviii] CSC: http://www.csc-scc.gc.ca/lois-et-reglements/730-cd-eng.shtml#s2c
[xix] CSC: http://www.csc-scc.gc.ca/corcan/002005-0001-eng.shtml
[xx] National Post, August 30, 2017: http://business.financialpost.com/news/court-challenge-to-inmate-pay-places-prison-labour-program-in-the-crosshairs
[xxi] Public Safety Canada: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2009-03-rjp/index-en.aspx
[xxii]The Rebel Media: https://www.therebel.media/because_it_s_2016_restorative_justice_for_two_time_murderer_means_no_justice_for_victims
[xxiii] Minister of Justice and Attorney General of Canada Mandate Letter:
http://www.pm.gc.ca/eng/minister-justice-and-attorney-general-canada-mandate-letter
[xxiv] Globe and Mail: https://beta.theglobeandmail.com/news/national/courts-shaken-by-search-for-solutions-todelays/article34275019/?ref=http://www.theglobeandmail.com&
[xxv] Department of Justice: http://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/about-ausujet.html
[xxvi] Department of Justice: http://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/about-ausujet.html
[xxvii] Canadian Intergovernmental Conference Secretariat: http://www.scics.ca/en/product-produit/news-release-justice-ministers-make-progress-on-key-issues-related-to-delays-in-the-criminal-justice-system/
[xxviii] Department of Justice: http://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/about-ausujet.html
[xxix] Toronto Star: https://www.thestar.com/news/canada/2016/04/25/bc-strikes-down-two-of-stephen-harpers-mandatory-minimum-drug-laws.html
[xxx]Huffington Post: http://www.huffingtonpost.ca/2016/11/22/trudeau-mandatory-minimum-sentences-ambrose_n_13156450.html
[xxxi] Department of Justice: https://www.canada.ca/en/department-justice/news/2017/06/cleaning_up_the_criminalcodeclarifyingandstrengtheningsexualassa.html
[xxxii] http://www.canadianlawyermag.com/author/michael-spratt/the-ghomeshi-rules-bill-c-51-creates-unprecedented-case-of-reverse-disclosure-3658/
[xxxiii] http://www.michaelspratt.com/law-blog/2013/11/12/unconstitutional-mandatory-minimum-sentences
[xxxiv] https://beta.theglobeandmail.com/news/national/justice-officials-testing-waters-for-sentencing-reform-promised-by-liberals/article36023357/?ref=http://www.theglobeandmail.com&
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