In Canada at the beginning of the twenty-first century, the fertile ground of a democratic, peaceful kingdom, so well entrenched in the Constitution and the law, is in danger of serious erosion as the politics of fear escalates demand for increased punitiveness against prisoners with a remarkable indifference to the fact that crime rates are declining. Indeed, for some proponents of stepping up the war against crime, a repudiation of the fundamental premises of international human rights law is an acceptable price to pay.
In September 1999, the Canadian Institute for the Administration of Justice sponsored a conference in Saskatoon at which participants were asked to reflect on the changing nature of punishment. Jim Gouk, a Reform (now Canadian Alliance) Member of Parliament and a member of the House of Commons Committee on Justice and Human Rights, offered these comments:
Canada has long been known as the land of rights and equality. If we are to make meaningful changes to the effectiveness of the punishment of crime, we must put those principles aside . . . To develop a new and effective approach to the punishment of criminals, it is necessary to accept to some degree that the rights of those who obey the laws of this country are different from the rights of those who do not. The system currently approaches the punishment of criminals from the point of view that criminals still have almost all of the rights of a law-abiding citizen. I fundamentally reject that approach. I believe that any person who has been convicted in a Canadian court gives up their rights as a Canadian with the sole exceptions of the right to humane and healthful treatment. I define this as the right to be incarcerated in accommodations with reasonable environmental control, to be provided with basic personal care supplies, to be fed according to the Canadian Nutrition Guide, and to be provided with access to basic medical treatment. Beyond this, prisoners should have the ability to earn other rights such as more freedom within the prison, transfers to more desirable facilities, training programs, sports programs, visitor privileges, payment for work performance, canteen privileges, temporary absences and parole. Each of these rights must be earned by appropriate behaviour which in turn means they can also be taken away for inappropriate behaviour. (Jim Gouk, "A New Approach to the Punishment of Crime in Canada" [Paper presented at Changing Punishment at the Turn of the Century: Finding a Common Ground, Saskatoon, September 27, 1999])
Following his presentation, I asked Mr. Gouk from the floor whether he was aware that his "new approach" was inconsistent not only with the decisions of the Supreme Court of Canada and the Corrections and Conditional Release Act, but also with principles enshrined in international human rights covenants to which Canada was a party. What meaningful changes in justice behind the walls would come from putting these principles aside? What evidence did Mr. Gouk have that rescinding fundamental human rights would result in a safer and more secure democracy? I neither expected nor received a response.
At the same conference, Commissioner of Corrections Ole Ingstrup and I were part of a panel with the theme "The Ongoing Struggle for Justice." The Commissioner, in reflecting on changes within the Correctional Service of Canada, began with a quotation from the 1977 report of the House of Commons Sub-Committee on the Penitentiary System in Canada.
[The] fundamental absence of purpose or direction creates a corrosive ambivalence that subverts from the outset the efforts, policies, plans and operations of the administrators of the Canadian Penitentiary Service, saps the confidence and seriously impairs the morale and sense of professional purpose of the correctional, classificational and program officers, and ensures, from the inmate's perspective, that imprisonment in Canada, where it is not simply inhumane, is the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country. ( Report to Parliament at 156)
The Commissioner went on to make the case that corrections in Canada had come a long way since 1977, and that nobody today could use those words to describe imprisonment in a federal institution. In place of a corrosive "absence of purpose," there was now the Mission Statement -- which he had animated -- and the statement of purpose and principles set out in the Corrections and Conditional Release Act. He pointed to minimum security healing lodges for Aboriginal women and men; a correctional strategy based on the earliest reintegration of the prisoner back into the community; a research-based spectrum of correctional programs designed to address prisoners' needs and risks; and an array of oversight mechanisms that included the Auditor General of Canada and the Office of the Correctional Investigator in addition to the Service's internal grievance mechanisms and audit procedures. Altogether, it was an impressive list. Indeed, the Commissioner ventured to suggest to an audience including representatives from both the judiciary and law enforcement that federal corrections had changed more than any other part of the criminal justice system.
As I listened to Commissioner Ingstrup, I thought about the history of the penitentiary and the different ways that history can be read. The Commissioner had told what English criminologist Stanley Cohen would have called "a good story," the latest chapter in the progression from barbarism to civilization, from arbitrary and inhumane imprisonment to principled corrections. When it was my turn to speak, I acknowledged that much in the Commissioner's story deserved recognition, and that on the basis of those changes Canada is seen as an international leader in corrections. I suggested, however, that his story, while an important tributary of change, had to work hard against the main flow of penitentiary history. That history had demonstrated that "conscience" -- whether manifest in the professed desire to rehabilitate prisoners or the professed commitment to protect their human rights -- seemed time and again to be trumped by "convenience," in which the exigencies of prison administration prevailed over the practice of justice. As a counterbalance to the Commissioner's story, I offered some of the stories I have presented in this book.
One of those stories was Gary Weaver's. After outlining the events at William Head, I told the audience how, early in March 1999, I had picked a blue wildflower on the grounds of William Head and taken it to Gary in segregation, as a symbol of the impending spring. Unknown to me, Gary kept the flower alive for the next sixty days, carefully changing the water in the cup in which it sat. When he was finally released from segregation, just days before his habeas corpus petition was due to be heard in B.C. Supreme Court, he gave the flower to the man in the cell next to him as a small floral torch of hope. I asked the Commissioner and the audience, as I would ask anyone, why a man like Gary Weaver, hardened beyond belief by the rigours of maximum and super-maximum security, could find so much solace in a single wildflower. Might it not be that for all the physical splendour of William Head, for all the progressive developments in the last twenty years, Gary Weaver's imprisonment was as much an "individually destructive, psychologically crippling and socially alienating experience" as imprisonment had been for Jack McCann and his brothers in solitary in the B.C. Penitentiary almost twenty years before/ In Gary Weaver's case, the gift of a flower, the support of those who believed in his innocence, and the prospect of justice through a habeas corpus petition were strong enough to sustain him in his struggle. But flowers do not often make their way inside segregation units, habeas corpus petitions are few and far between, and not many prisoners have the fortitude of Gary Weaver. The cords that link a sentence of imprisonment to the practice of justice must not only be girded with the steel of the law but must also be subject to the most careful scrutiny, because it is at precisely this juncture that the greatest strains will occur. What happened to Gary Weaver and the other prisoners whose stories I have presented should not be seen as the correctional equivalent of metal fatigue in the otherwise robust metallurgy of modern corrections, but instead as a flaw encoded in a system that in every generation has trampled on human rights.
Two weeks after the Saskatoon conference, I travelled to Paris on my way to a meeting with the international representatives of Avocats Sans Frontieres. Inscribed in stone high on the splendid fašade of that city's Hotel de Ville is the cri du coeur of the French Revolution: "LibertÚ, EgalitÚ, FraternitÚ." Imprisonment may take away a prisoner's freedom, but it does not nullify a prisoner's right to equal treatment under the law, and it must never be allowed to sever the ties that link a prisoner to the brotherhood and sisterhood the Universal Declaration of Human Rights accords us all.
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