Absence of rule of law integral to CSC’s operation | Jeffrey Hartman

By Jeffrey Hartman

Law360 Canada (September 11, 2023, 1:23 PM EDT) --
Jeffrey Hartman
Jeffrey Hartman
Nearly 30 years ago, Justice Louise Arbour sounded the alarm that the rule of law remained absent from the Canadian penitentiary system. The alarm sounded much earlier in a 1976 report to Parliament which, like Arbour’s warning, largely fell on deaf ears.

The rule of law, of course, provides that everyone is subject to the same law and no one is above the law. This means that violations of the law are subject to punishment regardless of who commits the violation.

Evidence that the rule of law remains absent emerged again in August 2023 when I learned from reliable sources that a high-ranking Correctional Service Canada (CSC) employee at an Ontario prison has a history of allegedly selling marijuana to prisoners. More disturbingly, this individual was also involved with three other staff members in manipulating a prisoner living with an intellectual disability into accepting a tattoo (falsely) identifying him as a sex offender.

The same staff person also arranged employment for the same prisoner. His job? To control what was shown on television so the staff person could watch from the security bubble. This means that public funds were spent on a human remote control. Two of the staff members received very minor discipline for this horrific conduct in the form of a written reprimand and three days without pay. The manager under discussion here emerged scot-free due to their relationship with the warden. This same manager failed the mandatory management competency test five times but was promoted anyway, via appointment by the said warden, to a managerial position.  

The Corrections and Conditional Release Act (CCRA) is the key law governing life inside Canadian prisons. “Contraband” is defined as an intoxicant and includes marijuana. Section 45 (a) and (c) make it an offence punishable by summary conviction to trade in contraband within a prison. Selling marijuana to prisoners also constitutes the offence of possession for the purpose of trafficking per Controlled Drugs and Substances Act, s. 5.

Manipulating an intellectually disabled prisoner into accepting a tattoo identifying them as a sex offender is a violation of s. 69 of the CCRA which prohibits a person, including CSC staff, from administering or instigating cruel, inhumane or degrading treatment of a prisoner. It is also a violation of s. 70 in that the conduct undermines the prisoner’s sense of personal dignity.

Arranging for a prisoner to be paid in public funds for personal benefit constitutes the criminal offence of breach of trust contrary to s. 336 of the Criminal Code.

What has been done about this? Well, nothing really. It is my understanding, again from reliable sources, that some discipline was awarded but, if so, it must have been meagre because it has not prevented this individual’s career advancement.

Sadly, this is not isolated conduct. Another manager at the same institution has a discipline history for surreptitiously taking photos of women’s crotches, likely constituting the criminal offence of voyeurism. 

And that is what brings us to a main point, a key insight no one outside the prison law bar understands, including judges who presume CSC is a legitimate law enforcement agency that is bound by the rule of law. The point is this: CSC is not entirely a meritocracy. This is not to say there are not good, hardworking people doing their best in a challenging environment. Instead, institutional management often consists of a web of people who have dirt on other people and use that dirt to hold each other accountable.

Accountable to what, the law? No: Justice Arbour described CSC’s culture as a highly defensive one that closes ranks when light shines on it. The accountability is therefore maintaining a system that operates outside the law or at least in partial compliance with it.

The minister of justice is complicit in this state of affairs. I have practised various areas of law across Canada during my career; family law, personal injury, civil litigation, estate litigation and so on. The hundreds of lawyers I have been opposite of outside of prison law understand that advocating for your client entails healthy skepticism of what your client is saying. In my experience, the Department of Justice (DOJ) is obsequious to CSC. This is not the role of the Department of Justice. As the esteemed Catherine Latimer, executive director of the John Howard Society, points out in this publication, s. 4 (a) of the Department of Justice Act requires the minister to ensure that the administration of public affairs in Canada — including CSC — is in accordance with the law. The Department of Justice’s conduct is so concerning that the president of the Canadian Prison Law Association requested a meeting with the public safety minister in 2022 to discuss DOJ’s role in perpetuating Charter violations. This uncritical abandonment of CSC to itself allows it to operate in the shadows of the law.

Nietzsche and, more directly, Durkheim discuss the primary motive of imprisonment being vengeance. The goal, particularly for Nietzsche, is to extract an equivalence of pain from the prisoner as they caused to society. The legislation outlined above is all meant to ensure the moral refinement of Canadian prisons as reflected by the lofty aspirations of sentencing found in s. 718 of the Criminal Code. But Durkheim would describe these aspirations as performative and say vengeance remains at the heart of imprisonment.

As he writes in The Division of Labour in Society: “the nature of a practice does not change because the conscious intentions of those who apply it are modified.” The essential nature of punishment has not changed despite the modern sociolegal discourse regarding utilitarian objectives achieved by a rational and unemotive legal system. We can see the thirst for vengeance play out in myriad ways, from the dour living conditions in Canadian prisons to, indeed, a public employee manipulating an intellectually disabled prisoner into accepting a derogatory tattoo.

A question of constant fascination to me is this: What is it that Department of Justice lawyers think they are doing in defending CSC? This is not a legal question. Rather, Foucault explains in Madness and Civilization that people know what they do and know why they do it, but do not know or understand the impact or meaning of what they do. One need only practise criminal defence for a matter of minutes before being asked “how can you defend these people?” but the same question is never put to lawyers who defend CSC or Crowns who advocate for imprisonment. How do you defend these institutions? This is an important question because the work of these lawyers maintains a status quo that allows CSC to operate in a murky state of partial lawlessness.

The long-standing refusal to firmly entrench the rule of law in Canadian prisons must be deliberate; that is simple Occam’s razor. So why can’t we just be honest about what we are doing? Why can’t just acknowledge that the purpose of punishment is to push people further into Agamben’s concept of bare life depending on the severity of their crime? Why fuss over prisoners’ rights if the very foundation — the rule of law — needed to reify those rights never existed in the first place?

Jeffrey Hartman is counsel at Lockyer Zaduk Zeeh.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.