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| John Hill |
The UN body last visited Canada 20 years ago. On May 24, the working group presented its preliminary findings at an Ottawa press conference. Some have regarded the interim report as a report card on Canada’s observance of criminal and correctional procedures set out in law and Canada’s constitution. The report card analogy is somewhat misleading since, in most report cards, a passing grade is likely to be 50 to 60 per cent. Regarding Canada’s compliance with the legal requirements it has established in law, the passing grade must be 100 per cent.
Canada fails.
The 10-page interim report provides a balanced assessment of Canada’s compliance with its legal standards. While it highlights areas for improvement, it also acknowledges positive aspects. For instance, the report commends the alignment of police procedures on arrest with Charter standards, noting that excessive force cases are relatively rare. The working group’s suggestion to allow lawyers to attend all suspect interviews is seen as a potential improvement rather than a criticism of an ongoing problem, indicating a constructive approach to the assessment.
Despite a decline in the number of youthful offenders, the working group expressed severe concerns about their treatment. It highlighted the imposition of adult sentences on minors, their confinement in isolated conditions and the lack of appropriate rehabilitative measures. These issues, which have not been addressed in some provinces’ use of The Wrap, a controversial method of controlling in-custody youth, were a cause for significant concern. The working group’s critique underscores the urgent need for improved treatment of youthful offenders in Canada.
The working group praised the reforms and principles used to reduce detention rates. Restorative justice mechanisms, diversion programs and community justice programs are essential in allowing offenders to avoid incarceration, enabling offenders to integrate with the broader community with less disruption, thus increasing our expectations of community safety.
The working group was less complimentary of Canada’s compliance with the laws respecting bail. It found that release conditions are often too restrictive, leading to breaches of conditions, especially for vulnerable individuals. This leads to revocation of bail, thus criminalizing non-criminal behaviour and fuelling a vicious cycle of re-arrests and detentions.
The group was also critical of prosecutors who overcharged suspects and secured convictions while promising a less severe sentence in exchange for a guilty plea.
Much of the critical comment addressed Canada’s failure to ensure equitable justice. It cited trial delays and found that mechanisms were lacking to halt the over-representation of Indigenous people behind bars. It spoke with approval at attempts to add restraint as a sentencing principle. The comments reflect what has been seen in many of our appeal court judgments where restraint has taken a back seat to the more traditional principles of denunciation and deterrence.
One area where the working group was especially vocal was in its critique of Canada’s new structured intervention units (SIU). These measures were imposed in light of the finding that solitary confinement over 15 days amounted to torture. The SIU system was established to curtail the psychological torture of solitary confinement that put Canada in breach of the international standard known as the Mandela Rules.
The SIU criticism included this passage that indicated the working group’s belief that the concept of the SIU was nothing more than solitary confinement in disguise: “Although detainees in these conditions are in theory afforded two hours of contact with other humans each day, this was sometimes fulfilled by a short conversation through a meal slot, or merely by allowing access to common areas with other prisoners also in special confinement. Such conditions can exacerbate a prisoner’s psychosocial or physical disabilities.
“Where only one detainee was held in an SIU, this effectively left them in solitary confinement, which risks violating the Nelson Mandela Rules, whereby such conditions should only be imposed in exceptional cases as a last resort, for as short a time as possible (no longer than 15 days), subject to independent review, and only pursuant to authorization by a competent authority.”
The concerns expressed by the working group were equally as strong when examining Canada’s treatment of racialized people, women and transpeople in custody.
Whenever a report such as this is made public, one would expect howls of derision from the Parliamentary opposition benches. However, the “tough on crime” advocates in the House of Commons are unlikely to give this report the credence it deserves. After all, should such voices come to power, conditions would worsen.
The working group will make its final report in 2025. Hopefully, measures will be taken to improve the issues spotlighted in the interim report by then.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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