Lately we’ve been working on quite a few prison issues here at BCCLA. In December 2023, we appeared before the Senate Standing Committee on Legal and Constitutional Affairs to comment on Bill S-230 and the continuing use of solitary confinement in Canadian prisons. In September, we participated in the public consultation regarding the review of Correctional Service Canada’s Health Services Standard. We also have an ongoing challenge to the use of lockdowns in the federal prison system. And most recently, we intervened in John Howard Society of Saskatchewan v Saskatchewan, a case about the need for procedural protections in prison disciplinary hearings. Needless to say, prison law and advocacy have been front of mind.
In that context, I recently attended a conference put on by the Canadian Prison Lawyers Association here in Vancouver. Prior to joining BCCLA, I worked in a prison law clinic for over seven years, providing legal services directly to incarcerated individuals throughout British Columbia. So, the CPLA conference was a welcome chance to reconnect further with issues I care deeply about, and also to see some familiar faces.
One of those faces belonged to Professor Michael Jackson, one of the first lawyers to practice prison law in Canada, and one of the first professors to teach it as well. He is also the president of the board for the prison law clinic I just mentioned. Professor Jackson has been at the forefront of the fight for prisoners’ rights for decades. And yet, at the opening reception, he wondered aloud to a small group whether any progress has really been made. Later in the conference, he talked about the many court victories we’ve seen in the area of Aboriginal law (another field where he is a leading expert), and asked why litigation in prison law has led to so much more limited success.
I’ve been thinking about that question, and I believe at least part of the answer is in how judges in this country think about prisoners. Like in society at large, there is a clear bias against prisoners in our courts. This bias often prevents judges from seeing incarcerated individuals as fully human, deserving the human rights the rest of us sometimes take for granted.
In 1985, the Federal Court of Appeal released the decision of Howard v Stony Mountain, guaranteeing the right to counsel in prison disciplinary hearings, at least in some cases. Despite this case representing a win for prisoners’ rights, Howard has another less salutary legacy. In its reasons for judgment the Court included the following passage about the nature of prisons:
Penitentiaries are not nice places for nice people. They are rather institutions of incarceration for the confinement of, for the most part, crime-hardened and antisocial men and women, serving sentences of more than two years. Reformation fortunately remains an aspiration of the prison system, but the prevalent environment is sadly reminiscent of Hobbes’ primitive state of nature before the advent of the Leviathan, where human life was said to be solitary, poor, nasty, brutish and short.
Despite representing what we might charitably call an outdated perspective, government lawyers love to cite this paragraph when they are in court trying to justify the abusive behaviour of prison officials. And for some reason they usually leave out the rest of the decision that talks about the need to protect the rights of prisoners despite these challenging circumstances.
Well, the passage – and perhaps more importantly the anti-prisoner bias it represents – has once again reared its ugly head. In John Howard Society of Saskatchewan v Saskatchewan, the trial judge quoted it while deciding that the beyond a reasonable doubt standard wasn’t required in prison discipline hearings, even where serious consequences like segregation are at stake. That decision was upheld at the Court of Appeal and, on October 8 and 9, the final appeal was heard at the Supreme Court of Canada.
While watching that hearing, I was struck by some of the comments from the bench. One justice noted that the prison disciplinary process was necessary to prevent institutions from descending into the “law of the jungle”. This allusion to people in prison as wild animals is extremely troubling. All the more so when we realize that Indigenous people represent a staggering 75% of the admissions to custody in Saskatchewan.
There was also a great deal of discussion about the lack of evidence put forward regarding the nature of segregation. The challengers had relied on existing caselaw to demonstrate the harmful effects of the practice. The various Attorneys General now involved in the case, and some of the judges, objected. Yes, courts have found that federal administrative segregation is unconstitutional, but is that really the same as disciplinary segregation in Saskatchewan? Perhaps the 23 hours spent in a cell by yourself in Saskatchewan isn’t really so bad. In contrast to the “brutish” nature of prisoners, which some members of the Court took for granted, the brutal nature of segregation appears to be something they demand be proven over and over again by prisoners seeking justice.
And this brings me back to Professor Jackson’s question. In prison advocacy we tend to focus on how prisoners’ rights are being violated. We fixate on the horrors we see happening behind prison walls, perhaps because they are so awful it can be difficult to see much else. When we talk about people in prison, we emphasize the abuses they have and continue to suffer. In some ways, this may reinforce the idea that these conditions are simply the natural state of prison life.
By contrast, Aboriginal law, while of course addressing rights violations, also focuses on the recognition of Indigenous peoples as people, with histories, cultures, and legal and social orders, all of which must be acknowledged and respected.
For me, the highlight of the CPLA conference was getting to hear from people with lived experience on incarceration. Yes, they spoke about their experiences in prison and on parole, which was an amazing learning experience for everyone in attendance. But they also spoke about their lives more broadly, about their relationships with their families, about who they were before their imprisonment and who they are now. They told stories, they told jokes, they spoke about their hopes for their future lives in the community. They also challenged the lawyers and academics in the room to seek out the expertise of people directly impacted by the carceral system and to remember the necessity of that expertise to inform our advocacy.
This all brought me back to some of my own experiences working with people in prison. Like the time I met with a client in the segregation unit at the maximum-security federal penitentiary Kent Institution. I was there to discuss his legal issues, but first, he wanted to share a rap he had just written. He performed it for me from the other side of the plexiglass in the interview room. It was pretty good.
Moments like that have helped me to see prisoners for who they are. Human beings. With all the good and bad that entails. So, I’m passing on the call to action from the lived experience experts I met at the conference, to find ways to see those impacted by the criminal justice system in a new light. To that end I’d like to share a video prepared by the Collaborating Centre of Prison Health Education at the University of British Columbia aptly titled Shifting Focus. My hope is that once we see the true humanity in prisoners, it will become impossible to justify the intolerable inhumanity of our prisons.
Seeking Humanity in Prisons and the Courts
Lately we’ve been working on quite a few prison issues here at BCCLA. In December 2023, we appeared before the Senate Standing Committee on Legal and Constitutional Affairs to comment on Bill S-230 and the continuing use of solitary confinement in Canadian prisons. In September, we participated in the public consultation regarding the review of Correctional Service Canada’s Health Services Standard. We also have an ongoing challenge to the use of lockdowns in the federal prison system. And most recently, we intervened in John Howard Society of Saskatchewan v Saskatchewan, a case about the need for procedural protections in prison disciplinary hearings. Needless to say, prison law and advocacy have been front of mind.
In that context, I recently attended a conference put on by the Canadian Prison Lawyers Association here in Vancouver. Prior to joining BCCLA, I worked in a prison law clinic for over seven years, providing legal services directly to incarcerated individuals throughout British Columbia. So, the CPLA conference was a welcome chance to reconnect further with issues I care deeply about, and also to see some familiar faces.
One of those faces belonged to Professor Michael Jackson, one of the first lawyers to practice prison law in Canada, and one of the first professors to teach it as well. He is also the president of the board for the prison law clinic I just mentioned. Professor Jackson has been at the forefront of the fight for prisoners’ rights for decades. And yet, at the opening reception, he wondered aloud to a small group whether any progress has really been made. Later in the conference, he talked about the many court victories we’ve seen in the area of Aboriginal law (another field where he is a leading expert), and asked why litigation in prison law has led to so much more limited success.
I’ve been thinking about that question, and I believe at least part of the answer is in how judges in this country think about prisoners. Like in society at large, there is a clear bias against prisoners in our courts. This bias often prevents judges from seeing incarcerated individuals as fully human, deserving the human rights the rest of us sometimes take for granted.
In 1985, the Federal Court of Appeal released the decision of Howard v Stony Mountain, guaranteeing the right to counsel in prison disciplinary hearings, at least in some cases. Despite this case representing a win for prisoners’ rights, Howard has another less salutary legacy. In its reasons for judgment the Court included the following passage about the nature of prisons:
Penitentiaries are not nice places for nice people. They are rather institutions of incarceration for the confinement of, for the most part, crime-hardened and antisocial men and women, serving sentences of more than two years. Reformation fortunately remains an aspiration of the prison system, but the prevalent environment is sadly reminiscent of Hobbes’ primitive state of nature before the advent of the Leviathan, where human life was said to be solitary, poor, nasty, brutish and short.
Despite representing what we might charitably call an outdated perspective, government lawyers love to cite this paragraph when they are in court trying to justify the abusive behaviour of prison officials. And for some reason they usually leave out the rest of the decision that talks about the need to protect the rights of prisoners despite these challenging circumstances.
Well, the passage – and perhaps more importantly the anti-prisoner bias it represents – has once again reared its ugly head. In John Howard Society of Saskatchewan v Saskatchewan, the trial judge quoted it while deciding that the beyond a reasonable doubt standard wasn’t required in prison discipline hearings, even where serious consequences like segregation are at stake. That decision was upheld at the Court of Appeal and, on October 8 and 9, the final appeal was heard at the Supreme Court of Canada.
While watching that hearing, I was struck by some of the comments from the bench. One justice noted that the prison disciplinary process was necessary to prevent institutions from descending into the “law of the jungle”. This allusion to people in prison as wild animals is extremely troubling. All the more so when we realize that Indigenous people represent a staggering 75% of the admissions to custody in Saskatchewan.
There was also a great deal of discussion about the lack of evidence put forward regarding the nature of segregation. The challengers had relied on existing caselaw to demonstrate the harmful effects of the practice. The various Attorneys General now involved in the case, and some of the judges, objected. Yes, courts have found that federal administrative segregation is unconstitutional, but is that really the same as disciplinary segregation in Saskatchewan? Perhaps the 23 hours spent in a cell by yourself in Saskatchewan isn’t really so bad. In contrast to the “brutish” nature of prisoners, which some members of the Court took for granted, the brutal nature of segregation appears to be something they demand be proven over and over again by prisoners seeking justice.
And this brings me back to Professor Jackson’s question. In prison advocacy we tend to focus on how prisoners’ rights are being violated. We fixate on the horrors we see happening behind prison walls, perhaps because they are so awful it can be difficult to see much else. When we talk about people in prison, we emphasize the abuses they have and continue to suffer. In some ways, this may reinforce the idea that these conditions are simply the natural state of prison life.
By contrast, Aboriginal law, while of course addressing rights violations, also focuses on the recognition of Indigenous peoples as people, with histories, cultures, and legal and social orders, all of which must be acknowledged and respected.
For me, the highlight of the CPLA conference was getting to hear from people with lived experience on incarceration. Yes, they spoke about their experiences in prison and on parole, which was an amazing learning experience for everyone in attendance. But they also spoke about their lives more broadly, about their relationships with their families, about who they were before their imprisonment and who they are now. They told stories, they told jokes, they spoke about their hopes for their future lives in the community. They also challenged the lawyers and academics in the room to seek out the expertise of people directly impacted by the carceral system and to remember the necessity of that expertise to inform our advocacy.
This all brought me back to some of my own experiences working with people in prison. Like the time I met with a client in the segregation unit at the maximum-security federal penitentiary Kent Institution. I was there to discuss his legal issues, but first, he wanted to share a rap he had just written. He performed it for me from the other side of the plexiglass in the interview room. It was pretty good.
Moments like that have helped me to see prisoners for who they are. Human beings. With all the good and bad that entails. So, I’m passing on the call to action from the lived experience experts I met at the conference, to find ways to see those impacted by the criminal justice system in a new light. To that end I’d like to share a video prepared by the Collaborating Centre of Prison Health Education at the University of British Columbia aptly titled Shifting Focus. My hope is that once we see the true humanity in prisoners, it will become impossible to justify the intolerable inhumanity of our prisons.
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES