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In the thirty years since I first entered a Canadian penitentiary, the areas in which the architecture of change is most visible are those which most members of the public never get beyond -- the places where prisoners visit with their families and friends. In contrast to the cramped and often dingy spaces of thirty years ago, the visiting areas of both new and renovated institutions are more spacious, have comfortable chairs, pop machines and toys for the kids; in medium and minimum security institutions, there are adjacent, open areas with swing sets and other apparatus upon which both kids and their parents can play. Canadian institutions, with the exception of the Special Handling Unit, have private family visiting houses or trailers in which prisoners can spend up to three days (and exceptionally longer periods) with their families; during this time they can cook their own meals and pursue the physical and emotional intimacy that is not possible in the normal visiting areas. In all maximum and in most medium security institutions there are still areas for "closed" visits where prisoners are separated from their visitors by glass partitions and where communication is through intercom phone; however, most visits now are "open" and prisoners can talk to and touch their visitors, so long as certain standards of decency and modesty are maintained.

But if the visiting regime in the Canadian federal prison system is a far cry from the movie stereotype of the prisoner desperately touching hand to glass in a facsimile of physical contact, ironically it bears a closer resemblance to the visiting regimes which existed in the eighteenth century in the prisons that characterized the pre-penitentiary regime; where a prisoner's easy access to his friends and family in the community was the difference between living or starving. In Eighteenth Century England it was common for wives to appear daily at the prison gates with meals for their jailed husbands. They were permitted to remain in the prison from dawn until lock-up and a bribe to the keeper ensured their continuing companionship by night (Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1705-1850, [New York: Pantheon, 1978] p. 34). However, in the modern penitentiary, the correctional theory underlying prisoner's access to their loved ones and friends is not to provide the physical sustenance for survival, but to maintain the bonds of community to facilitate prisoners' re-integration into the community when they leave the prison gates.

The 1992 Corrections and Conditional Release Act and Regulations provides the legal architecture for this correctional philosophy. The new legislation marks a legally significant shift from the pre-1992 Penitentiary Act, in which visiting was a privilege, to a regime in which prisoners have a right to maintain contact with the community, subject to reasonable limits. Section 71(1) of the CCRA provides:

In order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other person from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons. (emphasis added)

The CCR Regulations make it clear that prisoners have a presumptive entitlement to an open visit. Section 90(1) provides:

Every inmate shall have a reasonable opportunity to meet with their visitor without a physical barrier to physical contact unless

(a) the institutional head or a staff member designated by the institutional head believes on reasonable grounds that the barrier is necessary for the security of the penitentiary or the safety of any person; and

(b) no less restrictive measure is available.

The Regulations also specify the conditions under which a prisoner's right to visit can be denied or suspended. Section 91(1) provides:

(1) The institutional head or a staff member designated by the institutional head may authorize the refusal or suspension of a visit to an inmate where the institutional head or staff member believes on reasonable grounds

(a) that during the course of the visit, the inmate or visitor would

(i) jeopardize the security of the penitentiary or the safety of any person, or

(ii) plan or commit a criminal offence; and

(b) that restrictions on the manner in which the visit takes place would not be adequate to control the risk.

(2) Where a refusal or suspension is authorized under subsection (1),

(a) the refusal or suspension may continue for as long as the risk referred to in that subsection continues; and

(b) the institutional head or staff member shall promptly inform the inmate and the visitor of the reasons for the refusal or suspension and shall give the inmate and the visitor an opportunity to make representations with respect thereto.

The Commissioner's Directive dealing with visiting adds a further level of specificity to the visiting regime. Section 19 of CD 770 provides:

Each visit shall be assessed on a case-by-case basis. The refusal or suspension of a visit from a specific individual to a particular inmate shall occur in accordance with Duty to Act Fairly. The refusal or suspension of a visit from a specific individual shall continue only for as long as the risk which justified the refusal or suspension of the visit continues. The reassessment of the risk shall be done not less than once every six months and the result and the decision shall be forwarded in writing to the inmate within 14 days. (CD 770, December 17, 2001)

For most prisoners, especially those with young families, the right to receive visits is the most important right of all. Although a decision of a disciplinary board or a segregation review board may have a more obvious impact on a prisoner's residual liberty, the consequential effects of these decisions where they result in suspension or restrictions on the prisoner's right to have open or private family visits is what most concerns prisoners. However, whereas the CCRA and the Regulations provide for both disciplinary and segregation review boards and prescribe their procedures, they create no equivalent board or body of procedures for decisions that restrict the right of visiting. Even more surprisingly, the visit review board is not even mentioned in the Commissioner's Directive on Visiting and its establishment is left to regional instructions issued by each regional headquarters. The regional instruction issued by the Pacific Region sets out the purpose behind the visiting program and the role of the visit review board.

3. The aim of the Visiting Program in the Pacific Region, consistent with the Mission Document shall be to recognize and support the value of family and personal relationships and to encourage and assist the offender to become a law-abiding citizen.

7. Each Warden shall appoint Visits Review Board or equivalent.

8. The VRB shall be responsible for the following:

(a) reviewing all applications for visiting;

(b) reviewing on a regular basis the quality of individual inmate visits;

(c) recommending to warden any alterations to an inmate's visiting program (e.g. suspension, restriction, etc.);

(d) documenting decisions, visitor's records and notifications to visitors/inmates; and

(e) monitoring the updating of visitor's security checks which are completed by Preventive Security staff as required.

12. Recommendations to alter or suspend an inmate's visiting program for security reasons must be based on probable cause grounds.

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Open Visiting Area, Kent Institution