- Mental health crises for which there are few resources
- COVID-19 lockdowns
- Overuse of solitary confinement
- A racialized justice system that criminalizes Indigenous Peoples and Black Canadians
- A lack of preparation for re-entry into society
These are the tip-of-the-iceberg issues faced by inmates in Canada’s federal and provincial prisons. And according to advocates for better inmate treatment, much more needs to be done.
According to Statistics Canada, in 2017/2018, Canadian prisons held just under 39,000 adults:
- a little under 25,000 in provincial or territorial custody (83 per 100,000 population)
- 14,000 in federal custody (48 per 100,000)
- for a national total of 131 adults per 100,000 citizens.
Investigations by the prisoner advocacy group John Howard Society of Canada (JHS) show total spending on criminal justice in Canada (at all levels of government) is about $20 billion annually. Provinces and municipalities spend 70% of that total. Prisons and jails get $5 billion (55% provincial and 45% federal) with the balance going to police services and the court system.
With that context in mind, let’s look at four major issues of inmate treatment in Canadian jails.
1. Health issues
Health issues continue to devastate inmates’ rights. Inmates are far more likely than the general population to suffer from HIV and AIDS, are more prone to psychiatric issues, and are more than 100 times as likely to suffer from Hepatitis C. Once released, inmates are 58 times more likely than the general population to have psychiatric episodes that land them in a health care facility. As well, inmates may be overmedicated. According to the Canadian Human Rights Commission, 46% of women in prisons are being treated with psychotropic drugs (used for conditions such as anxiety disorders, bipolar disorder and schizophrenia).
Catherine Latimer, executive director of the John Howard Society of Canada, says inmates receive far less health care than the general community does “and we see them (inmates) as aging 10 years faster in the prison community than in the regular community.”
In an email interview, Sandra Ka Hon Chu, a lawyer and the director of research and advocacy at Canadian HIV/AIDS Legal Network, says:
Health care for prisoners living with HIV (and hepatitis C or HCV, another virus transmissible by injection drug use) is a significant public health concern, especially in light of rates of HIV and HCV in prison that are considerably higher than they are in the community as a whole. A 2016 study indicated that about 30% of prisoners in federal facilities, and 15% of men and 30% of women in provincial facilities. are living with HCV, and 1–2% of men and 1–9% of women are living with HIV. Indigenous prisoners, in particular, have much higher rates of HIV and HCV than non-Indigenous prisoners; e.g. Indigenous women in federal prisons are reported to have rates of HIV and HCV of 11.7% and 49.1%, respectively. Not surprisingly, research shows that the incarceration of people who inject drugs is a factor driving Canada’s HIV and HCV epidemics. Despite this, neither federal prisons nor provincial/territorial prisons provide prisoners with equivalent access to health care services, including key harm reduction measures.
While inmates have access to HIV testing in federal prisons, “ongoing testing is another issue, which makes it more difficult to track HIV or HCV,” says Ka Hon Chu. “Stigma and the very real risk of discrimination (from prisoners and prison staff alike) and the loss of confidentiality (in relation to one’s HIV test results) remain an impediment to testing.” And while HIV treatment is available, “a major issue consistently identified by people in prison is the prioritization of security over their health care needs,” says Ka Hon Chu.
Ka Hon Chu adds that another significant health issue is prison officials too often misinterpreting harm reduction (giving inmates access to clean needles and syringes for injection) as tacit approval of drug use. “While a significant number of prisoners use drugs, harm reduction measures are always deemed secondary to purported security concerns and often characterized as being in opposition to the security of an institution.”
Some developments in inmate care include the provision of naloxone (used to counteract the deadly effects of opioid overdoses) to prison staff and “introducing North America’s first prison-based needle and syringe program,” says Ka Hon Chu. Although, “ these programs are still far from equivalent to what is available in the community outside prison, and remain inaccessible for many prisoners.” Studies show up to 17% of male and 14% of female inmates using injectable drugs, and overdose deaths have increased over the years. A third of all overdose incidents involve Indigenous prisoners.
Access to sterile injection equipment in prison “is extraordinarily limited,” says Ka Hon Chu. While acknowledging “the health benefits of needle and syringe programs in prison with the introduction by Correctional Service Canada of a Prison Needle Exchange Program (PNEP) in some federal prisons beginning in June 2018, details of the PNEP reveal serious deficiencies that are not in keeping with public health principles or professionally accepted standards for such programs.” She adds:
Despite the fact that naloxone is an exceedingly safe medication to reverse opioid overdoses, no prisons in Canada provide prisoners with direct access to naloxone… prisoners are often the first on the scene of an overdose, and denying them with immediate access to naloxone could mean the difference between life and death, or irreversible damage.
The COVID-19 pandemic added an additional layer of problems, says Latimer. The virus hit several institutions across Canada despite the Correctional Service of Canada taking proactive measures against its spread. In April 2020, the Criminal Lawyers Association and the John Howard Society petitioned federal and provincial governments to reduce the number of inmates during the COVID-19 epidemic. A spike in the number of cases in B.C., Ontario and Quebec (where during one week, cases doubled in the span of only two days), left both inmates and correctional officers vulnerable and in some cases infected. In Ontario, B.C., Newfoundland and Labrador, and the Northwest Territories, diversion tactics to avoid the potential spread of the virus in high-density institutions included early release or granting temporary absences. Prisoner rights advocates urged institutions to release low-risk inmates and those with compromising health issues in order to avoid the spread of the virus.
2. Solitary confinement
Solitary confinement (also called “administrative segregation”) is a widespread practice overused not only for dangerous individuals but also as a population management tool.
According to JHS research, solitary confinement effectively allows prisons to “warehouse” individuals in overcrowded facilities. Fifty percent of federal female inmates in solitary confinement are Indigenous women. In Ontario, the issue of solitary confinement made headlines in 2016 when records showed Adam Capay, an Indigenous man, was held in segregation for 1,500 days (more than four years) under 24-hour-a-day lighting. That year, Ontario’s Ministry of Community Safety and Correctional Services committed to reducing solitary confinement to a maximum of 15 days.
Alberta lawyer Amanda Hart-Dowhun, a member of the Criminal Trial Lawyers’ Association and president of the Alberta Prison Justice Society, reports:
Solitary confinement continues to be a big issue. It becomes a bigger issue with COVID-19. Some inmates are bunked with other inmates so they cannot be distanced.
The subject of solitary confinement has struck a chord with human rights groups, with “many prisoners basically being locked up for 22 hours a day,” says the JHS’s Catherine Latimer. In some cases, “the response to the (COVID-19) virus was basically to lock people down.” A small victory of sorts for inmates came following an Ontario Court of Appeal ruling capping solitary confinement (the subject of a number of lawsuits) at 15 days. The court called the practice of long-term segregation unconstitutional and cruel-and-unusual punishment. The federal government first challenged the ruling but then gave up in April 2020. The ministries of public safety and justice followed with a statement that an investment in the system of almost $450 million would provide effective health care, infrastructure improvements and new staff.
3. Uncaring attitudes
For Hart-Dowhun, the biggest issue in inmate treatment is an uncaring attitude:
Occasionally there are issues of malice toward prisoners but the biggest issue they suffer is the pervasive lack of caring, or lack of ability or resources to adequately care for them.
With respect to prison officials, she adds:
It’s not that they want inmates to suffer, but they are unwilling or they lack the resources to properly care for them. Part of the issue is resources (and) how those resources are allocated – if the issue is safety of staff over anything else then the funding will go to that and that will be at the expense of programs and other proactive measures. You do see … a trend toward more riots and more inmate protests when conditions are very poor. When they’re relatively well-cared for, they are less likely to riot.
Hart-Dowhun says there are problems with the system with respect to mental health problems. Inmates in segregation receive a “mental health check” – a guard peeping through a cell window and talking through the door for a minute. Her take? “[T]hey are checking the boxes but not doing it in a meaningful way.”
“I think that in the past couple of years we’ve had a bit of a shift in terms of the standards for inmates,” Hart-Dowhun adds. This includes “more [public] awareness of what the standards are; my impression is that for many people they assumed there was a basic level of care and sometimes those perceptions were not accurate.”
4. Over-representation of Indigenous and Black people
Canada’s prison system is also highly racialized. On an episode of TVOntario’s The Agenda in the spring of 2020, Christa Big Canoe of the Aboriginal Legal Society noted that Indigenous people are overrepresented in the prison system. Over 25% of the prison population is Indigenous. And Indigenous women represent 35% of inmates in Canadian institutions. By contrast, Indigenous people comprise just under 5% of Canada’s population.
On the same program, lawyer Nana Yanful of the Black Legal Action Centre noted the overrepresentation of Black people in the justice system due to anti-Black racism. This includes overt policing and over-surveillance of neighborhoods where people of colour live, a lack of discretion in the treatment of clients in the courtroom and during sentencing, and the funneling of people into the criminal justice system.
Hart-Dowhun is also frustrated with the continued over-representation of Indigenous people in prisons. A major milestone in cross-cultural respect and recognition came in the late 1990s, following the trial of Nanaimo, B.C.’s Jamie Gladue. Gladue is an Indigenous woman who pleaded guilty to killing her common-law husband in 1995. Sentenced to three years in prison, Gladue argued that the courts failed to think about alternative punishments that considered the history and condition of Indigenous offenders’ lives. In 1999, the Supreme Court of Canada ruled that a judge must consider an Indigenous offender’s history when sentencing them. According to Aboriginal Legal Aid in B.C., Gladue rights include “the challenges of colonization” faced by First Peoples, “such as racism, loss of language, removal from land, Indian residential schools, and foster care.” They add:
Judges must keep this information in mind and consider rehabilitation and community-based sentencing options other than jail. The goal of a restorative justice approach is to balance accountability and rehabilitation.
Yet Gladue is “quite old at this stage,” says Hart-Dowhun, and “statistically, the situation with Indigenous People being overrepresented in our prison system has only gotten worse.” While Gladue legislation had good intentions, “it’s not helping. We need to try something else. I think we probably need to look beyond the sentencing in the courtroom” for change.
“I don’t think leaving it to judges on sentencing will work,” adds Hart-Dowhun. “I think we need to look at the source and the way we’re policing communities. Indigenous People and Blacks in Canada are over-policed and overcharged and we need to look at policing and start there. Diverting people away from the sentencing courtroom might be a good start.”
Room for Improvement
There is no shortage of promises for improvement.
In March 2020, Legal Aid Ontario released a Racialized Communities Strategy outlining a 10-year plan with 17 initiatives. These initiatives include:
- access to justice,
- heightened services to racialized communities, and
- tackling systemic discrimination in the justice system, with a focus on “amplifying the voices of racialized communities”.
- respecting the presumption of innocence,
- changing how we penalize addicts who commit crimes,
- treating the mentally ill,
- seeking proportionate and constructive penalties, and
- looking at more effective ways to manage corrections.
Another major focus of the John Howard Society’s work is to get the voices of inmates heard by the public in order to enhance public understanding of the issues. A podcast called “Voices Inside and Out” does just that.
In 2018, the federal government made a commitment to improve services to Indigenous inmates, inmates of Colour, and members of the LGBTQ2S+ community. They also committed to reducing the use of solitary confinement, improving rehabilitative programs, and providing better services for people with mental health issues as well as treatment for those with addictions. Finally, the federal government promised to improve nutrition and access to education.
Latimer notes that while federal funding may increase, money often goes towards more guards when there “should be more money for program officers.” Program officers deliver initiatives focused on substance abuse reduction and violence prevention, helping guide inmates toward reintegration into society. Where we go from here remains to be seen.
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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