Human rights compliance and the role of external prison oversight/Respect des obligations relatives aux droits de la personne et role de la surveillance externe.

• Author: Zinger, Ivan

Introduction to the special issue

Correctional authorities around the world are under increasing legislative and societal pressure to introduce more austere ("no-frills") prison regimes, impose new restrictions on prisoners, and tighten security requirements. Even traditionally liberal and open European regimes have taken measures in recent years to introduce a more Spartan and, in some instances, more punitive prison regime in response to the prevailing law-and-order agenda. The war on terrorism has also provided "legitimacy" for some countries to further oppress their prisoner populations--not only convicted and alleged terrorists have been affected but, in some instances, the entire prison population. In this societal context, those responsible for administering prisons are now faced with an ever more difficult task in ensuring legal standards of humane detention. Guaranteeing the human rights of prisoners will continue to be an important challenge for many countries, including advanced democracies such as Canada.

The best argument for observing human rights standards is not merely that they are required by international or domestic law but that they actually work better than any known alternative--for offenders, for correctional staff, and for society at large. Compliance with human rights obligations increases, though it does not guarantee, the odds of releasing a more responsible citizen. In essence, a prison environment respectful of human rights is conducive to positive change, whereas an environment of abuse, disrespect, and discrimination has the opposite effect: Treating prisoners with humanity actually enhances public safety. Moreover, through respecting the human rights of prisoners, society conveys a strong message that everyone, regardless of their circumstance, race, social status, gender, religion, and so on, is to be treated with inherent respect and dignity.

The best approach to ensure that the rule of law is upheld in corrections is to conceptualize the business of corrections as a human rights business. The same can also be said of the business of policing and the business of national security. When government has exceptional authority over its citizens, the potential for abuse of powers is great, and the protections of fundamental rights must be a core preoccupation of those empowered and trusted with those exceptional powers. In a correctional context, every aspect of the prisoner's life is heavily regulated by correctional authorities. Correctional authorities make thousands of decisions every day that affect prisoners' fundamental rights (e.g., use of force, segregation, searches, transfers, visiting). Routine daily activities, such as whether prisoners can contact family and friends, whether and how they can practice their religion or access medical services, and when they can eat and sleep, are all regulated by correctional authorities. Without recognition that the business of corrections is all about promoting and monitoring respect for human rights, preventing human rights violations, and detecting and remedying human rights violations, systemic abuses of power are inevitable.

Perhaps the most provocative account of the challenges faced by correctional authorities in Canada and abroad in fully meeting their respective human rights obligations is that offered by Mary Campbell (1997), who has contributed to this special issue a commentary on whether prisoners' sentences should be altered in cases of gross violations of human rights by correctional authorities. This senior federal public servant was instrumental in developing one of the world's best correctional legislative frameworks--Canada's 1992 Corrections and Conditional Release Act. She writes that a "natural drift" toward "callousness at best and brutality at worst" (1997, 327) exists in corrections and that "a lack of genuine commitment to a culture of human rights behind bars can swiftly return prison culture to the 'dark ages' where expediency rules rather than the law" (323). She then argues that a strong human rights legislative framework paired with effective external monitoring mechanisms serves as a crucial counter-weight against that "natural drift." The "natural drift" can have a still more brutal, and even deadly, impact on citizens living where democracy has yet to be realized. Denis Langlois's well-informed description of some prison regimes in South America in this special issue tells a disturbing tale of abuse and torture and how this "natural drift" can be used to keep ineffectual or self-serving governments in power.

The best Canadian illustration of this "natural drift" in action can be found in the 1996 report of the inquiry chaired by Justice Louise Arbour, now UN High Commissioner of Human Rights (Arbour 1996). The tenth anniversary this month of the release of her report is an opportune time for a special issue of the Canadian Journal of Criminology and Criminal Justice to reflect on the value of external prison oversight in fostering human rights compliance.

The tenth anniversary of Justice Arbour's historic report on P4W

Until 1995, federally sentenced women had to serve their time at the only federal penitentiary for women in Canada, the Prison for Women (P4W) in Kingston, ON. Since its opening in 1934, P4W has been the subject of 15 inquiries, commissions, and reports, all of which denounced the poor conditions of confinement, the practice of over-classifying women into higher security levels than security warranted, poor programming, and cultural insensitivity. Many reports also called for the closure of P4W. Moreover, the lack of adequate and appropriate programming at P4W was described as "outright discrimination" by the Canadian Human Rights Commission (CHRC) in 1981.

After more than half a century of controversy, P4W finally closed in 2001. With the establishment of five regional facilities and an Aboriginal Healing Lodge, women offenders could at last serve their penitentiary time closer to their family, children, friends, communities, and cultures. With the opening of the regional facilities, the Correctional Service of Canada (CSC) also attempted to implement a new correctional philosophy--a women-centred approach that stressed the importance of meaningful choices for women and emphasized a concern with the over-representation of Aboriginal women in the prison system. The transition to the new regional facilities and the implementation of the new correctional philosophy did not go as planned, and the CSC quickly abandoned some of the key principles of that new philosophy. The CSC decided to co-locate maximum-security women offenders in men's penitentiaries and subsequently built maximum-security units attached to its regional facilities.

In February 1995, before the opening of some of the regional facilities, a major television network aired a video of women at P4W being strip-searched by an all-male emergency response team. Canadians were shocked. The government of the day reluctantly responded by establishing a Royal Commission of Inquiry, chaired by Justice Arbour. The best overall account of a decade of half-measures in women's corrections since the release of Arbour's historic report can be found in Debra Parkes and Kim Pate's contribution to this special issue, which provides a detailed review of the inadequacy of current prison oversight mechanisms to ensure that the human rights of federally sentenced women are upheld. Parkes and Pate's thoughtful analysis is a tribute to Justice Arbour's undeniable contribution to human rights in Canada; at the same time, it is a stark reminder of the lack of political and bureaucratic will exhibited, to date, in incorporating the rule of law and human rights principles into correctional practice.

What is most striking about the federal correctional system in the last decade since the release of the Arbour Report is that the CSC has been the subject of countless inquiries, commissions, and high-profile reports (including some of its own internal reports) calling for significant governance reforms yet has, for the most part, ignored their findings and recommendations. (2) In no other Canadian criminal justice institution would such flagrant disregard for the consistent findings and recommendations of such a prominent group of observers survive public scrutiny. Evidence-based policy rarely drives the government's agenda, and corrections should be no different. However, corrections is different from other agencies because correctional authorities can feel invulnerable to significant calls for reforms and can even capitalize on the law-and-order agenda.

The contribution of Michael Jackson to this special issue illustrates well what could be perceived as evidence of the CSC's feeling of immunity from much-needed governance reforms. For more than 25 years, Jackson has repeatedly advocated major reforms to ensure that segregation would be imposed only as a last resort and administered in accordance with the principles of fundamental justice. In her 1996 report, Justice Arbour concludes that "the management of administrative segregation that I have observed is inconsistent with the Charter culture which permeates other branches of the administration of the criminal justice" (1996: 192). The report goes on to say,

I see no alternative to the current overuse of prolonged segregation but to recommend that it be placed under the control and supervision of the courts. Failing a willingness to put segregation under judicial supervision, I would recommend that segregation decisions made at an institutional level be subject to confirmation within five days by an independent adjudicator. (1996: 192) For more than a decade, the CSC has rejected independent adjudication; it continues to this day to argue that an enhanced internal segregation review process can achieve fairness and compliance with the rule of law. Since the Arbour Report of 1996, several...