By Cara Zwibel
on April 25, 2013
On April 26 Canada will undergo its second Universal Periodic Review (UPR), a unique global accountability process that allows all members of the UN Human Rights Council to review Canada’s compliance with international human rights law. CCLA believes this is an important process and was pleased to participate in a pre-session with states allowing us to provide an update on our concerns. Sukanya Pillay, the Director of CCLA’s National Security Program, has written a piece for Embassy magazine about the importance of this process.
Read Sukanya Pillay’s opinion piece here.
Read more about CCLA’s participation in the pre-session here.
on December 17, 2012
When I moved to CCLA, a friend asked me in his characteristic critical fashion: “So, what are you going to do now?” I responded, smiling, that my new job was about working for people’s rights. “I thought we had already enough rights”, he responded.
In a way, his remarks were prescient of the challenges facing human rights advocates. We are told that there are too many rights, too many rights for suspected terrorists, too many rights for asylum seekers, too many rights for alleged criminals, too many rights for arrogant or disrespectful high school students, and that there is a need to return to a discourse of responsibilities and of earned “privileges” of Canadian life.
At times, there is a sense that the human rights discourse is fatigued, out of fashion, yesterday’s speech. The Charter is presented as an impediment to effective policing and warrants are described a hassle, too much of a bureaucratic demand. Tonight, I want to reflect on how to position human rights demands in this environment. As Human Rights Day is the day when we reflect on where we are and what are our commitments for the year to come (a New Year’s Day for Human Rights Defenders), I want to share with you my Five Human Rights Day Resolutions.
1. Challenge the Impoverished Vision of Democracy
We have to invest into a discourse that sees human rights as the potential for a prosperous, innovative, just and fair society. Legal norms should be seen as drivers of good policy making, not simply as impediments.
Modern democracies – that aim to live up to democratic ideals and not just state them – should recognize that legal norms that are respected are good governance, and that various institutions need to work well for the true promises of democracy to be realized. Democratic life demands a genuine social capacity to self –monitor, to self-reflect and to analyse: accountability of decision-makers, civil society’s participation and genuine discussions. Vibrant democracies are not just about democratically elected governments, they require institutions that protect rights and support public participation. Vibrant democracies should be committed to ensuring that most people who live, work and pay taxes participate in the governance of their communities. In that sense, we should worry about public policy developments that thwart or limit the number of people who can vote. This is one argument to continue to articulate in the current debates about immigration policies when the government seeks to further delay access to citizenship (for designated asylum seekers), or strip it completely like in the context of temporary foreign workers for example. To the extent that we reserve the right to vote to citizens, we should not tolerate that access to citizenship be delayed or excluded.
Any time that there are restrictions on the right to vote, on the number of people who can vote, we should worry about the state of our democracy.
2. Develop Accountability as a Human Right
My second resolution is to move our human rights claims to more clearly articulate what happens when they are not respected and strive to imagine better institutional arrangements that diminish the likelihood of right violations. Conversely, we should continue to demand that more coercive powers be accompanied by more accountability : more police powers should be accompanied by better accountability rules; wider ministerial discretion should be matched by better transparency and reporting; increased security budgets aligned with better evaluation of the direct and indirect costs.
Democracies are like fragile ecosystems: the equilibrium is easily broken when new unchecked powers are created that may lead to further deep-seated inabilities to challenge.
So we need to maintain, practice and develop our accountability muscles and reflexes – they do weaken through non-use.
3. Renew the “Human” in Human Rights
There is a face to injustice and violence. It has to be shown.
Human rights provide basic rights to fairness, to respect of one’s dignity and equality. These are rights that transcend borders and boundaries and extend to everyone no matter where one is born. This is a challenge for our legal vocabulary : we constantly create categories to define who can get what and we have accepted that non-citizens are entitled to different due process rights, as though justice, procedural fairness does not mean the same thing for different human beings.
We must re-energize our thinking and avoid the pitfalls of creating categories that undermine the very concept of humanity and safeguard the rights of some, but cheapen the rights of others.
4. Enlarge the Tent and Refuse to be Defined by Oppositional Politics
Chris Hedges laments in one of his books about the failure of the intellectual classes to “democratize”. He suggests that the left has been unable to fully engage in the bottom up revolution, and continues to engage in top-down instruments to impose an agenda. This leaves the powerless to express their anger and resentment through right-wing politics of exclusion, as opposed to solidarity-building politics.
Human rights are not about right-wing or left-wing politics: they are about protecting the right to live and the right to be treated with dignity of everyone. In a way, human rights are about reaching out to others and trying to understand their fears and their objectives. It is about ensuring that there are less victims in the world: less victims of violence, less victims of injustice, less victims of discrimination. It is incumbent upon us to make people recognize human rights violations in their lives and in the lives of others. Oppositional politics, pitting some victims against others, never work in the long run.
5. Protect the Right to Dissent
Above all, my resolution is continue to protect the right to dissent, the right to challenge and the right to challenge both the human rights violators and the human rights advocates.
The experience of the G20 in Toronto and of the “printemps érable” in Québec point to the way in which we need to constantly defend the right to peacefully demonstrate. Our society gets easily swayed by fears of disorder and is often willing to sacrifice dissenters to a promise of “order”. We must worry about the portrayal of protests as inherently dangerous, as events to be feared and to be discouraged. We should be concerned when the act of throwing a rock in the window, certainly illegal and not to be condoned, is treated more severely than assaults or fraud. A vibrant democracy recognizes that politicians need to know where the electorate is at, and what people think and feel strongly about. Politicians meet people all the time and are influenced by the people they encountered. In a way, rich people have a more direct access to politicians, they have their lobbyists. Poor people have the feet, they need to be able to walk and protest outside and in large groups to be heard.
Our fear of disorder has led us to accept policing tactics that aim to label and intimidate. Protesters are identified, questioned, imprisoned, released on conditions, and often subject of surveillance. The instruments developed in the context of the War on Terror seem to have crept into to our thinking about dissenters: we no longer incarcerate for what people have done, but for what they might do, we punish people not for the actions they take, but for the people they know. This slippage from the exceptional measures of anti-terrorism to day-to-day security was to be expected, but it is dangerous. We should never accept that the ends justify the means in the context of policing: this will create further victims. We should worry about the new forms of legal disabilities that rely on flimsy “risk assessments”: people can no longer board planes, no longer volunteer or work in certain places or no longer cross borders.
The protection of a meaningful right to dissent requires an insistence on rigorous decision-making processes in our assessment of blame, of labels or of privileges. We ought not to be swayed by innuendos or rumors to impose any penalty or deny any right to people.
As we celebrate Human Rights Day and the upcoming New Year, let’s remember the great men and women who cared, who bore witness to injustices and spoke out. Let’s formulate our good wishes:
To the powerless, may you continue to hope and believe in justice, to the powerful, may you recognize the value of accountability and democratic responsibilities and to the indifferent, may you listen and act.
on June 12, 2012
Over the past few days news reports have emerged that the Montreal police service (Service de police de la Ville de Montréal or SPVM) were conducting dozens of “preventive arrests” and countless identity checks and searches in Montreal streets and subways. Today, CCLA Board Member Marie-Eve Sylvestre, a professor of law at the University of Ottawa, denounced these “illegal and illegitimate” arrests in the paper Le Devoir.
Read the full piece (in french) here.
on April 17, 2012
“There is a song by Jean-Pierre Ferland that romanticizes that it is at 30 that women are beautiful. Before, so the rhyming goes, women are only pretty. Is the Charter beautiful at 30? Has its features grown harmoniously? Does it project an air of maturity without cynicism or a sense of capabilities without fatigue?
Certainly, the Charter had an exciting youth: the early days were marked by much enthusiasm and the Supreme Court developed an optimist vision celebrating the Charter’s arrival as a sign of a new modern Canada, committed to human rights and civil liberties. The Court was bold in its pronouncements, but always willing to accept limitations on a right, if necessary for the public good. Limits on freedom of expression were accepted, and hate speech and pornography provisions survived, if only slightly tightened.
In adolescence, one could sense awkwardness : inconsistent statements on the right to equality and graceless decisions on the interpretation to the famous clause that allows governments to assert that a violation of rights is “justifiable in a free and democratic society”. This identity crisis did not really abate in early adulthood. But in recent months, a sense of purpose is emerging. The Charter seems to be there, at a minimum, to protect us from inconsiderate and abusive politics, from mean or discriminatory governmental behaviour that may be popular, but profoundly unfair. This may be the new Charter identity: more modest, but with sufficient strength and poise to act…
“C’est à 30 ans que les femmes sont belles… Avant, elles sont jolies, après, cela dépend d’elles » . So the song ends humourously with the proviso that after 30, beauty is far less certain… We will have to wait and see.”
Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association
>> Read Nathalie Des Rosiers’ message to CCLA members on the anniversary of the Charter
>> Read an op-ed by Danielle McLaughlin, Director of Education “Forget Sesame Street! Your Kid Should Read The Charter“
>> Check out the Charter Project!
>> CBC.ca – 6 Big Changes The Charter Has Brought
on April 4, 2012
This op-ed was originally published by PostMedia News on April 3,2012. Click here to view original.
When is it legitimate to target and hurt innocent families?
Unfortunately, this is not a riddle. The government’s new omnibus anti-refugee bill (C-31) would do precisely that — and for no good reason.
Take, for example, the detention of asylum seekers entering Canada. Under bill C-31, the minister could at his or her whim designate certain “groups” (or families) arriving in Canada, even if their reason for coming is that they were escaping torture, sexual violence or other targeted atrocities in their home country.
Note: In current Canadian as well as international human rights law, we recognize that it would be absurd — and inhumane — to punish people for escaping persecution and seeking asylum.
Not so bill C-31.
Being “designated” by the minister under this bill is very bad for one’s family life.
The first harm to befall you is automatic mandatory detention — and in this case, no good or bad reasons are necessary, since under the bill, the government is not obliged to bring you before an independent decision-maker for 12 months, and only then would they consider whether there is any need to jail you.
And while in this 12-month no-reasons-needed detention, what happens to your family? If you and your family were lucky enough to escape together from danger in your country of origin, bill C-31 would see to it that on arrival in Canada, you could no longer stay together.
Men and women would likely be locked up in gender-segregated detention facilities or jails.
As for your children — youth aged 16 years or older would also be placed in automatic mandatory detention, so they might end up with one parent, but not likely both.
Children and youth aged 15 and under do not have to be detained under this bill.
So here is what would happen to them if you were the asylum seeker being detained. According to government spokespeople, you should be reassured that you as the parent would be consulted — the only catch is that there are only two options when the parent is in mandatory detention: having your child with you in the jail or jail-like facility; or having your child separated from you for the duration of the detention, during which time he or she could end up in foster or other state-sponsored care.
This difficult decision would probably be even harder for you if you were aware of the documented mental health impacts of detention on children and youth (such as suicide, self-harm, etc). It may also be harder than usual to separate from your child if he or she has been through traumas in your country of origin, and/or a grueling escape in your search for safety.
Unfortunately, bill C-31 does not stop there.
The refugee claim process under this bill is speeded up to the point of being impractical or even impossible for certain refugees — which could lead to people being unable to prove their identities and stories. In addition, many groups of asylum seekers under this bill would not have the benefit of an appeal to correct any errors that may occur in the process. An inadequate process coupled with no appeal, could result in people who had escaped terrible dangers being unable to prove this, and being sent back to these very dangers. Clearly, this is not good for anyone — families or otherwise.
But even if you are able to prove your refugee claim in a manner acceptable to Canadian authorities, this is still not enough to protect your family. Under Bill C-31, it is enough that you were in one of the minister’s “designated” groups, for another harm to befall you. If when running for your life you had to leave behind a spouse or child, you would be unable to bring them to Canada for at least another five years after your refugee status is accepted.
And here’s another anti-family policy of bill C-31 for those people who came to Canada as refugees, settled down, found work, built a life and community, had their children and raised a family here: if something changes in your country of origin and the danger passes, even if it is decades later — until and unless you have taken out citizenship and passed the test (not easy for everyone) — under bill C-31 the government can start a process that would likely result in your deportation from Canada. You would have no right of appeal. The fact that your spouse is here and your children born in Canada, would not prevent your deportation.
Splitting families, harming children — these are some of the harms that bill C-31 has to offer. As to the reasons for this bill?
The government has put forward a couple of explanations — such as preventing “human smugglers,” and stopping “queue jumpers” — but nothing that makes sense.
The families running for safety are the “smuggled” not the “smugglers.” And people in danger cannot wait around in queues. If an explanation is irrational and disconnected from reality, this does not qualify as a reason — certainly not a good one. And that is even without considering the cruelty of inflicting mental harm on children who have survived trauma, automatic detention and separation of families. In short, the proponents of Bill C-31 offer nothing that would qualify as a good reason, while causing terrible harms.
Human rights groups, faith groups and countless organizations from across Canada are working to raise awareness about and fight this bill. You can, too. Please share this information with your networks and contact your member of Parliament to let them know you strongly object to Bill C-31 and to the infliction of needless suffering on children and families.
Noa Mendelsohn Aviv is director of equality program with the Canadian Civil Liberties Association
on February 16, 2012
Op-ed originally published by PostMedia News on February 16, 2012.
Minister Toews has tabled the much vilified Investigating and Preventing Criminal Electronic Communications Act, a bill that provides additional powers to law enforcement to obtain information from Internet providers, at times without warrant. The Bill is flawed because it makes the ISP providers agents of the police to facilitate the detection of crime, not only child pornography or Internet fraud but for all law enforcement purposes.
Warrants are not a mere administrative hurdle or nuisance for police. They constitute a fundamental safeguard against potential abuse. They serve to ensure that there is an objective assessment of the need for the police to search and obtain private information. The Bill replaces the judicial pre-authorization of the warrant with a decision-making power within the police force. This is very dangerous. Despite the best of intentions, police officers are ill-placed to balance the need for privacy with the necessity of a search for their colleagues.
Institutionally, this is not the right way to do it. We risk normalizing the practice of obtaining Internet identification, not only for suspects but for everyone having an interaction with the police: witnesses or potential jurors. One can easily imagine that nosy journalists, critics of the police, or even politicians that are debating budget for the police could be subject to cyber-surveillance if there is no judicial oversight. Demanding respect for warrants and for judicial pre-authorizations is not being anti-police, or pro-child pornographers, it is demanding that police be provided with power that have sufficient safeguards to be legitimately exercised. It is being pro-democracy. We should not expand police powers without accountability.
In a way, the government is asking us to sacrifice our privacy in fundamental ways to facilitate police work. But privacy is not a luxury. It is fundamental to democratic life because it reinforces basic principles: that governments’ interventions into peoples’ lives should be limited by law and done only when necessary; that individuals have choices as to how much or how little they want to disclose about themselves to others. Privacy is also about preserving the capacity to innovate and dissent. It is not only an individual right but also a social good. Societies with little and no privacy are less innovative and less daring in their thoughts, ideas, or artistic expression. Without even a virtual room of one’s own, people may not be able to challenge social norms, to debate or criticize. Without proper safeguards, why should we give police the powers to know who is criticizing them on the web?
There are many ways that the Bill could be targeted more reasonably: it could be limited to the very serious crimes (child pornography or Internet fraud), it could provide for notice to third parties as is done in wiretap, it could have after the fact reporting or audits to ensure that the power is not abused, and it should absolutely maintain the need for warrants, except in exigent circumstances. There are avenues for compromises here and the government should take them.
Nathalie Des Rosiers is the Canadian Civil Liberties Association’s general counsel.
on December 10, 2011
This speech was delivered by CCLA General Counsel Nathalie Des Rosiers on Saturday, December 10, on the International Human Rights Day event hosted by the Canadian Race Relations Foundation (CRRF) Canadian Ethnocultural Council (CEC) with the participation of the Canadian Ethnic Media Association (CEMA)
“Human Rights Day began in 1950 to commemorate the Universal Declaration of Human Rights adopted on December 10 1948. Observance began in 1950 on December 10 when the UN General Assembly passed resolution 423. It is officially a day “to celebrate the proclamation of the Universal Declaration of Human Rights… and to exert increasing efforts in this field of human progress”. The theme of this year’s day is “social media and human rights to reference ordinary human rights defenders who were empowered by social media and the internet throughout the world. (ex. Tunis, Cairo, Madrid, and New York).
An inspirational theme indeed. I want to touch briefly on two aspects of this theme: Our responsibility as ordinary citizens to bear witness and the power of regrouping to take a stand. I also want to discuss less visible threats to human rights, the threats that may not be photographed, threats that come from new forms of categorizing human beings as risks or mere labour providers.
Human Rights Protection is about challenging discrimination and ensuring the full participation of all human beings in governance.
To vow to eliminate discrimination requires a legal infrastructure to protect and help victims of discrimination, to ensure continued vigilance and to condemn and react powerfully against the experience of discrimination. Strengthening the legal system is essential to reduce discrimination but we must also strengthen our capacity to advocate against discrimination.
The right to equality is a paramount and fundamental right enshrined in the Canadian Charter of Rights and Freedoms, as well as the various provincial and federal human rights acts. Yet, aboriginal people continue to overpopulate the jails, to be denied housing, immigrants are denied meaningful ways to participate, disabled persons cannot find jobs, racialized people are often overpoliced.
Discrimination is experienced in myriad forms: individuals may be denied employment, lodging or services, passed over for promotion, unfairly charged with crimes, unfairly sued, overcharged for services, treated poorly by insurance agents, restaurant owners or EBay vendors, defamed, become the victims of property crime or violently attacked. But discrimination is also profoundly internalized. It may prevent individuals from complaining, responding, arguing, expressing themselves, suing, running for elections or generally participating fully in their society. Because discrimination has such a powerful and pervasive effect, an effective response requires that all aspects of the legal system function fairly and adequately. Employment policies must be fair, consumer protection must be effective, policing must be measured, courts must be unbiased, and compensation systems must be available to provide a remedy. Indeed, strong democratic institutions – legal, cultural and social – are essential to ensure that even the invisible forms of discrimination are confronted and remedied.
Access to justice continues to be a significant problem for those who face discrimination. Denunciation of systemic patterns and of individual discriminatory patterns is essential and if the legal system is unwelcoming and inaccessible, a primary place for such denunciation is lost.
Indeed in times of war, be it the war on crime, the war on terror, the war on drugs, we ought to re-invest in the rule of law and anti-discrimination tools because we know that any war produces collateral damages on the perceived, created and imagined enemy. The War on Terror and the creation of the Enemy Combatant category have meant an increase in Islamophobia and anti-immigration discourse, and discriminatory attitudes toward people of the Muslim faith. The War on drugs has meant an increase in jail time for larger and larger numbers of people. Wars are often carried at the expense of the lower classes and the poor. In order to sustain the `war effort”, there is often the temptation to demonize the enemy and to encourage discrimination and unfairness. Just as the Second World War had a profound effect on Japanese Canadians, and the Cold War caused injustice to many socialist and communist sympathizers, so do the more recent “wars” have translated into discrimination.
Another indispensable tool in the fight to monitor and respond to discrimination is the compilation of statistics on discrimination. The compilation of accurate, objective data on discrimination in Canada is essential to developing a thorough understanding of the issue. Ongoing, detailed and timely statistical reporting is essential to developing a fuller understanding not only of discrimination, but also trends with regard to the full range of intolerance within Canada. We must investigate whether models of denunciation developed in the context of other pervasive forms of abuse, such as sexual and domestic violence and psychological exploitation may be applicable or distinguishable from the experience oIndividual and collective responsibility for discrimination start by noticing it – by bearing witness to injustice. This is what is celebrated today. We have to train ourselves not to become complacent, desensitized, blasé, or simply discouraged in the face of injustice and violations of human rights. Earlier this week, on page B 7 of the Globe & Mail, the recent OECD statistics about inequality were published – Canada has now one of the fastest growing rate of income inequality, the gap between the rich and the poor is getting larger, faster than elsewhere. This does not bode well for a human rights culture: when the rich are getting richer and the poor poorer, harsher measures are developed to keep the status quo in place, higher fences are built, more security is hired, higher fear of unrest are created, and the ability to speak, to denounce, to act diminishes. There comes a point when income inequality is democratically unsustainable: the poor can no longer participate in governance, because they are unemployed, poorly housed, depressed, criminalized, branded as “trouble”, as “dangerous”. Our individual and collective responsibility to see the unfairness will be challenged. We must continue reenergize the human rights message in this context.
This brings me to a final point that I wanted to share with you. Although today we celebrate our accomplishments in the world of human rights, and the role of social media in transforming Egypt, Tunisia, Lybia, hopefully Syria, and other people living under dictatorship, it is also a world of risk management. The ten years since September 11th have not toned down the rhetoric of fear. We have created new forms of civil disentitlement: the right to mobility is contingent on demonstrating that one is not a security risk, has a valid immigration status and is not engaged in criminality. I suggest that new subtle forms of discrimination are slowly emerging as more and more is linked to a security assessment. More jobs require police checks, more travel demand security clearances. A new caste regime emerges where risk profiling determines entitlement. This could be justified, if it is fair and non-discriminatory. At this stage, I worry that risk assessment is often done in secrecy, that mistakes are made with little redress and that we are all at the mercy of a poor and debilitating risk assessment score.
Human Rights 2011 should be a day to reflect on the challenges ahead. We need more than ever organizations like yours, the Canada Race Relations Foundation and the Canadian Ethno Cultural Association, and the Canadian Ethnic Media Association, to stimulate, reactivate and energize our commitment to equality and human rights, I thank you for your invitation and wish you an inspiring Human rights Day 2011.”
on October 27, 2011
This op-ed was originally published in The Windsor Star on October 27, 2011
Peanut butter has been getting a lot of ink lately. There have been media stories about schools that have forbidden both peanut butter and “safe” peanut butter substitutes – while food banks want donations of peanut butter.
Working toward building a tolerant and critically thinking society, my colleagues and I have been using peanut butter for years.
It turns out to be a great tool for teaching even young children about democratic rights and responsibilities.
While we don’t bring it into class, we found it opens the door to discussions about conflicting rights. For those who believe that democracy means “majority rules,” the schools that forbid peanut butter help show that, while the majority may like it, we may also need to protect a very small number of people. Whose rights weigh more?
A very angry man once telephoned the Canadian Civil Liberties Association. He had sent his young child to school with her favourite lunch. She was a picky eater and only ate one thing. At lunch time, the child had been discovered in possession of that contraband item – the peanut butter sandwich.
She had been whisked down to the school office where she had to eat her lunch alone, and then she was told never to bring her favourite lunch to school. The father was outraged. He said that the school was interfering with his right to feed his child the best way he could.
He pointed out that peanut butter was an excellent food that was preferred by the majority of children. And, food bank peanut butter, he pointed out, may be the only lunch available to some.
The person who answered the phone that day tried to mollify him. “If your child had a life-threatening allergy, surely you would understand the school’s position on peanut butter,” she suggested.
The man responded, “If my child had a life-threatening allergy, I would never send her to school. After all, who would know when a guy like me might send his kid to school with a peanut butter sandwich!”
He is right. There is no rule about what children eat for breakfast. And we have all seen children arrive at school “wearing” breakfast. Imagine the child who has peanut butter on his face and hands playing on the playground equipment before the bell rings. Who will be the second child on that equipment? The child with the peanut allergy? The father said, “The school rule doesn’t keep the kids with allergies really safe.”
His suggestion: Take the children with allergies out of the school. Open a school where they can be really safe – everyone will wear one-piece coveralls, the air will be filtered, and all food will be controlled by the school. Then they will be really safe – and everyone else can go to school with peanut butter sandwiches.
While his suggestion may look absurd or even discriminatory, it raises some serious questions. What is the purpose of the peanut butter rule? Does it actually work? What are the side effects of the rule? These are the questions that all citizens, rule-makers, and legislators, not to mention judges, need to consider in order to determine whether any laws and rules are fair and just.
We want our children to think critically and to consider the needs and rights of people who may differ from them. Children who learn more than just a rule will understand they have a responsibility to others. Thinking about peanut butter can help them practise the habits of democracy.
Danielle McLaughlin is director of education at the Canadian Civil Liberties Association and Education Trust. ccla.org/education
REACTION TO WINDSOR STAR OP-ED ON THE PEANUT PROBLEM
First and foremost, I think that the gentlemen’s response in which he indicates that there is no way to keep every child safe (from peanut butter or otherwise), is unfortunately correct. However, as a society we must ask ourselves if we truly believe that we can create conditions (as much as we may wish we could), in which everyone we love is safe from all threats to their safety.
I would suggest that realistically, we know that we can’t, but what we can do in our democratic society, is offer a collective effort to do so to the best of our abilities. Therefore, in the discussion of what is fair and equitable in our society, we need to critically consider special measures in terms of different treatment. And so, in addition to asking the three questions you present about rules in society, 1) what is its purpose? 2) does it work? and 3) what else happens (side effects)?, may I offer a fourth – does this rule protect and promote fairness and equity?
I ask this because equitable treatment does not mean equal treatment, nor does it mean that people be treated the same in some circumstances. When we discuss rules with people, especially children, and consider our responsibility to others, I believe that it is imperative to address equity and fairness, and to ensure that as citizens we are appreciative of the fact, and openly acknowledge, that different treatment may be necessary to be equitable. In this regard, perhaps the place to begin is to critically interrogate that old adage,”that’s not fair”!
Karen Roland, PhD
Experiential Learning Specialist
Faculty of Education, University of Windsor
on October 21, 2011
This op-ed was originally published by Post Media News on October 21, 2011
The numbers are stark. Approximately a quarter of all individuals admitted to federal prisons show signs of mental health illness – without counting those who have substance abuse problems – and one in five are prescribed psychiatric medication. Internal Correctional Service Canada (CSC) documents paint an even bleaker picture – in the Pacific region, for example, nearly 40% of male inmates and over 50% of women present some form of mental health problem. An estimated 25% of women in federal custody have a history of self-harming behaviour. These sorts of statistics should leave little room for debate – Canada may have closed its asylums, but as a society, ‘lock them up’ is still one of our primary institutional responses to mental illness.
The personal stories that accompany these numbers are often equally shocking. Ashley Smith, the 19-year old who hung herself while prison staff watched, is a name that has been seared into the public consciousness. First placed in a youth facility at the age of 15, her mental health deteriorated rapidly and she was incarcerated for increasingly lengthy periods of times because of rule violations and further charges once she was in custody. She spent much of her young life in solitary confinement and in the last year of her life she was moved between institutions 17 times. Although Ashley Smith’s story is extreme, it is not exceptional. The suicide rate in federal facilities is seven times higher than the national average. The problems Ashley encountered are, to a large extent, systemic issues.
Canada’s correctional institutions are already struggling to keep up. There are staffing problems: although CSC is currently the largest employer of psychologists in the country, over 20% of their psychology positions remain vacant, and most psychologists who do work in the correctional system spend most of their time writing risk assessments for parole boards and internal administration rather than treating patients. There are also enormous gaps in treatment options. Only the severest cases of mental illness are able to transfer to dedicated treatment centres, and even then there are only enough beds for half of those who are eligible. Most offenders with mental health needs are held in conventional correctional facilities – where treatment options are woefully inadequate. In the absence of sufficient resources to deal with this population, the answer becomes even more restrictive confinement – use of physical restraints and discomfort to induce compliance, solitary confinement and, for the most difficult individuals, transfer to Canada’s “supermax” institution.
These issues, however, receive almost no attention in the criminal justice and corrections omnibus bill currently before parliament. Indeed, the Canadian government’s current direction on crime – more people in jail, for more time, with more lasting consequences – will only exacerbate these trends. The bill, for example, introduces mandatory minimum sentences for non-violent crimes such as production of marijuana and trafficking offences. Individuals convicted of these offences will be sent to jail, regardless of the underlying mental health problems that may have contributed to their actions or that would disproportionately deteriorate due to incarceration.
The omnibus bill would also eliminate conditional sentences for a wide range of non-violent crimes. If prosecutors decide to proceed by indictment in these cases, judges will no longer have the option of ordering offenders to serve their sentences and receive treatment in the community. Canada’s jails are not mental health institutions, and segregation is not a treatment program. Without the flexibility of tools such as conditional sentencing, however, the crisis we are facing will deepen as we find ourselves hurtling in the wrong direction.
All those involved in the criminal justice system – the police, courts and correctional services – need all possible tools at their disposal in order to deal with the ongoing crisis. The omnibus bill, however, provides very few exceptions to its ‘tough on crime’ provisions, and none for the large number of individuals with mental health needs. The threat of mandatory jail will not reduce crime – particularly when it is linked to mental health issues. The time that offenders spend in jail will, in most cases, only exacerbate underlying conditions. Any legislation addressing the criminal justice system needs to grapple with the difficult reality of crime and punishment in Canada – a reality in which the role of mental health cannot be ignored. These are not issues that will be solved by simply throwing people in jail; we need nuanced, evidence-based solutions.
At a minimum, the omnibus crime bill needs to recognize reality by preserving what flexibility our justice system currently has. Any provisions mandating incarceration should be accompanied by exceptions allowing for consideration of the specific and unique circumstances of the mentally ill and other marginalized communities. It is simply short-sighted and poor policy to increase incarceration rates with no regard for the systemic, profound and ongoing challenges facing our corrections system. And it is simply inhumane to subject even more individuals to a system that has already failed so many.
Abby Deshman is director of the Canadian Civil Liberties Association’s Public Safety Program.
on October 17, 2011
This op-ed was originally published by Post Media News on October 17th 2011
There are many reasons why people object to minimum sentences: they do nothing for victims, they do not deter offenders, they cost too much money and they displace power from judges, who give their reasons in open court, to Crown prosecutors, who make their decisions behind closed doors.
While we agree with all these assertions, today we want to take a slightly different tack, and make the case as to why mandatory minimum sentences are just plain wrong, on moral and philosophical grounds.
Minimum sentences disembody the crime: They make the offender, his or her context, personality, upbringing, intellect, morality or addiction, irrelevant. It matters not that the person was coerced by family members into participating in a grow-op operation, it matters not that she did not understand the implications or her actions, that he was addicted, that she was desperate to provide food for her children, that he has since changed his life around. Minimum sentences impose punishment in a vacuum, mechanically, as though offences and crimes were committed by automatons. Minimum sentences also sideline victims, placing the focus squarely on the act, rather than the circumstances of the individuals – both victim and offender – that are involved.
But life is not like that, and indeed, most of our human experience teaches us that punishment is always about the crime, the offender and the victim. No parent would dream of ignoring the circumstances of an offence while imposing punishment on a child, because we know instinctively that it is unfair to ignore the context and the reasons why wrong choices were made. Indeed, the evolution of sentencing principles reflect this basic notion: we reject as barbarous the notion that all thieves should have their hands cut off, recognizing instead a more complex set of principles that look at individual and general deterrence and potential for rehabilitation as guiding principles. In 1988, the Parliamentary Committee on Sentencing (which was led by Conservative MP David Daubney) stipulated that the purpose of sentencing is to hold the offender “accountable” for his or her criminal conduct. Accountability cannot be fixed in the abstract. It must be grounded in a real person’s recognition of fault and obligation to repair.
This concept of individual accountability, however, has almost disappeared in the Conservative government’s omnibus crime bill – the price of criminal conduct is fixed in advance, irrespective of the degree of responsibility or moral blameworthiness of the accused. This represents an impoverished vision of society’s desire to deal with crime. Real people are involved in circumstances that should be disclosed so that we understand why and how crime occurs.
It is this sensitivity to context that has allowed us, in the past, to give a schizophrenic man who had committed drug crimes at the onset of his mental illness continued access to the successful in-community treatment he had since been receiving. In such cases, sentencing arrangements that are currently available, for example lengthy and restrictive conditional sentences that both punish wrongdoing and allow the individual to continue receiving treatment, would no longer be an option. Every case is different, and not all facts are so sympathetic. It is only by looking at each specific incident, however, that we can truly come to grips with an individual’s conduct and maintain the possibility of taking into account such human complexity.
The omnibus bill seeks to change this, imposing a long list of mandatory minimum sentences. In a nod to context, it adds aggravating (but no mitigating) factors to the imposition of minimum sentence. Selling drugs near places where youths generally gather, for example, would result in mandatory, added time in jail. It is as though the government recognizes that circumstances do matter and is trying to imagine all the circumstances that a judge would have considered in imposing an individual sentence. The assumptions implied by the aggravating factors, however, are distorted. For example, it is an aggravating factor to use other people’s property for a drug offence, singling out all renters for harsher treatment than property owners. Those who live in cities – where parks, schools, malls and corner stores frequented by youth are always only a few steps away – would be treated differently than those who commit offences in rural areas.
The impulse to take into account the circumstances is correct, but the process of setting mandatory minimums with a set list of “aggravating factors” is faulty. No legislator can predict the range of human conduct or determine in advance what would be the appropriate sentence to respond to a particular crime committed in a particular way by a particular offender. The whole enterprise of stripping the justice system of its capacity to individualize sentencing is fundamentally flawed: it undermines our sense of fairness and morality, taking us back to the alluring but barbarous simplicity of “an eye for an eye.” It is just plain wrong.
* Nathalie Des Rosiers is general counsel for the Canadian Civil Liberties Association, where Abby Deshman is director of the Public Safety Program. This is the first of an occasional series of columns addressing Bill C-10, the Safe Streets and Communities Act.