Law Enforcement and Corrections Commons^™

Critical Pathways To Disability Decarceration: Reading Liat Ben-Moshe And Linda Steele, Sheila Wildeman

Articles, Book Chapters, & Popular Press

I consider how Liat Ben-Moshe’s Decarcerating Disability and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. I ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? I centre my remarks on the special relevance of Ben-Moshe’s and Steele’s books to social movement activism in Atlantic Canada and critical reappraisal of Canada’s solitary confinement litigation.

Introduction To Julie Bilotta’S Story, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Habeas Corpus Unbound, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Sites of incarceration present stress tests to our theories and practices of administrative law. They yield insights, too, into how law distributes power across the administrative state. While studying administrative law as prison law reveals certain distinctions between the law that rules in prisons and everyday administrative state operations, it also reveals continuities—for instance, between the surveillance and control characterizing prisons and the routine surveillance and control that police, child welfare, social assistance, mental health, and public health authorities concentrate upon Indigenous, Black, disabled, and poor people in ways that produce and reproduce subordination and disproportionate incarceration. We begin to …

The Quotidian And Constitutive Practice Of Police Brutality Against Indigenous People, Elaine Craig

Articles, Book Chapters, & Popular Press

In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the …

The Politics Of Regulating And Disciplining Judges In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The disciplining of judges is a sensitive and complex challenge. In Nigeria, the complexity is heightened because the process is complicated by socio-political factors and public views about the motivations for disciplining some judges, including claims of political interference by the ruling government. This Chapter argues that both judicial discipline and the work of the National Judicial Council (NJC) – the body responsible for judicial regulation in Nigeria – are caught up within Nigeria’s peculiar socio-politics, a reality that a strictly legal analysis will miss. The Chapter analyzes contemporary challenges and controversies associated with the complaints and discipline procedure in …

Submission To The Toronto Police Services Board’S Use Of New Artificial Intelligence Technologies Policy- Leaf And The Citizen Lab, Suzie Dunn, Kristen Mj Thomasen, Kate Robertson, Pam Hrick, Cynthia Khoo, Rosel Kim, Ngozi Okidegbe, Christopher Parsons

Reports & Public Policy Documents

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter.

We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations:

1. Police use of AI technologies must not be seen as inevitable
2. A commitment to protecting equality and human rights must be integrated …

Do Independent External Decision Makers Ensure That “An Inmate’S Confinement In A Structured Intervention Unit Is To End As Soon As Possible”? [Corrections And Conditional Release Act, Section 33], Jane B. Sprott, Anthony N. Doob, Adelina Iftene

Reports & Public Policy Documents

The Government of Canada established Correctional Service Canada’s (CSC) Structured Intervention Units (SIUs) to be a substitute for “Administrative Segregation” as it officially was known, or Solitary Confinement as it is more commonly known. The goals – explicit in the legislation governing federal penitentiaries (the Corrections and Conditional Release Act) – included provisions that SIUs were to be used as little as possible and that prisoners would be transferred from them as soon as possible.

This report examines some aspects of the operation of the IEDMs – the only SIU oversight mechanism that is currently active – using administrative data …

Covid-19 Provincially Incarcerated Individuals - A Policy Report, Adelina Iftene

Articles, Book Chapters, & Popular Press

This document is the result of an investigation into the impact of the COVID-19 pandemic on provincially incarcerated individuals and the Nova Scotia government’s responses relating to its prison population. It was supported by the Nova Scotia COVID-19 Health Research Coalition. In this memorandum, we describe the results of the investigation and propose solutions to better prepare for the second wave of COVID-19 or an alike pandemic situation.

Solitary Confinement Continues In Canada Under A Different Name, Adelina Iftene

Articles, Book Chapters, & Popular Press

Abusive uses of Structured Intervention Units and the Correctional Service’s conduct mean Parliament must get rid of SIUs or adopt Senate amendments.

Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.

In this article, the authors …

Employing Older Prisoner Empirical Data To Test A Novel S 7 Charter Claim, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners’ security of the person, and sometimes their lives, in ways that violate their rights under s 7, since the deprivations they suffer result from legislative policies and state conduct …

Informal Networks Of Corruption: Assessing The Challenges For Public Sector Whistleblowing In Nigeria, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Recently, the Nigerian government adopted its first National Anti-Corruption Strategy—the first since its independence in 1960. While the strategy captures varying forms of corruption, whistleblowing is seen as one of the key strategies identified to confront anti-corruption in the public sector. The adoption of the whistleblowing policy and its on-going implementation however occurs without a legislative framework to protect whistleblowers. This article situates the whistleblower program in the wider socio-political context of anti-corruption in Nigeria, and public governance. The paper critically examines the implications of the legislative gaps for the long-term sustenance of the whistleblower protection program. This paper argues …

End-Of-Life In Prison Symposium Report, Adelina Iftene, Crystal Dieleman, Hanna Garson

Articles, Book Chapters, & Popular Press

In 2016, the Canadian Parliament passed “An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” (S.C. 2016, c. 3). This statute decriminalized providing medical assistance to the dying in a defined set of circumstances. The Corrections and Conditional Release Act (CCRA) was also amended: section 19 now reads “(1.1) Subsection (1) does not apply to a death that results from an inmate receiving medical assistance in dying, as defined in section 241.1 that Act.”

Pursuant to these amendments, this meeting focused on issues that may arise in implementing MAiD in …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

Articles, Book Chapters, & Popular Press

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

Articles, Book Chapters, & Popular Press

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

The Pains Of Incarceration: Aging, Rights, And Policy In Federal Penitentiaries, Adelina Iftene

Articles, Book Chapters, & Popular Press

The number of aging people in prison has been on the rise in the last few decades. Their heightened needs place burdens on correctional institutions that have not been encountered before. This article presents the results of a study conducted with 197 older prisoners. This study’s findings identify issues raised by chronic pain in older prisoners and the management of this pain in a prison setting. Correctional Service Canada (CSC) does not acknowledge older prisoners as a vulnerable prison group, and correctional policies thus tend not to include age (and its implications) as a variable worthy of consideration. Data from …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Unlocking The Doors To Canadian Older Inmate Mental Health Data: Rates And Potential Legal Responses, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these …

Tort Claims And Canadian Prisoners, Adelina Iftene, Lynne Hanson, Allan Manson

Articles, Book Chapters, & Popular Press

Prisoners can be tragically wronged by the prison system, as highlighted by the recent Ashley Smith case. Tort actions have proven to be a problematic form of recourse for them. Negligence claims made by prisoners face many obstacles at every stage of the analysis: the duty of care, standard and breach, and causation. The authors offer an overview of tort litigation coming out of Canadian prison with a focus on health care based negligence claims, risks arising from other prisoners and the risk of self-harm. They find that these cases are unevenly resolved when the plaintiff is a prisoner. The …

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

Early Experience With The Kyoto Compliance System: Possible Lessons For Mea Compliance System Design, Meinhard Doelle, Meinhard Doelle

Articles, Book Chapters, & Popular Press

Regardless of the future of the Kyoto compliance system, much of its work will continue to be important both for the climate change regime and for other MEAs. While it is impossible to make accurate predictions about the substance of the climate change regime after 2012, it is nevertheless important to reflect on the experience with the Kyoto compliance system to date for MEA compliance generally. Adjustments to the Kyoto compliance system necessitated by post 2012 changes to the substantive obligations can, of course, only be considered once those changes are known. The central question posed in this article is …

Climate Change And The Use Of The Dispute Settlement Regime Of The Law Of The Sea Convention, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This article explores the connection between obligations to reduce greenhouse gas (GHG) emissions under the climate change regime and obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). Within the context of the state of the science on the links between climate change and the marine environment, the article considers whether the emission of greenhouse gases as a result of human activity constitutes a violation of various obligations under the UNCLOS. Having identified a number of possible violations, the article proceeds to consider the application of the binding dispute settlement process …

Why Restorative Justice Is Not Compulsory Compassion: Annalise Acorn's Labour Of Love Lost [A Review Of 'Compulsory Compassion: A Critique Of Restorative Justice,' Annalise E. Acorn (Vancouver: University Of British Columbia Press, 2004)], Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Annalise Acorn has produced an immensely engaging book about love, sexuality and law, written with verve and elan; however, it paints a hugely misleading picture of restorative justice that could be seriously damaging to what is arguably the most significant development in criminal justice since the emergence of the nation state. Restorative justice is changing the nature of criminal justice systems the world over. The Canadian criminal justice system is a leader in this regard, though it is far from being alone. Simplistic and dysfunctional systems of punitive criminal justice are being altered and supplemented by restorative programs that are …

Shooting Ourselves In The Foot: Why Mandatory Reporting Of Gunshot Wounds Is A Bad Idea, Merril Pauls, Jocelyn Downie

Articles, Book Chapters, & Popular Press

A recent position statement by the Ontario Medical Association’s Section on Emergency Medicine called on the Ontario government to pass a law requiring physicians to report gunshot wounds to police. The Ontario government quickly passed a motion to “introduce legislation to require hospitals and physicians to report gunshot wounds and knife injuries to their local police service.” The goals behind the position statement are laudable: “to assess and reduce immediate public risk and to collect data to inform future prevention strategies.” However, mandating that physicians report gunshot wounds is an ill-conceived response to the problem of gun-related violence. It will …

Redressing The Imbalances: Rethinking The Judicial Role After R. V R.D.S., Dianne Pothier, Richard Devlin

Dianne Pothier Collection

The Decision of the Supreme Court of Canada in R. v. R.D.S. dealt with whether a trial judge's comments, about interactions between police officers and "non-white groups", gave rise to a reasonable apprehension of bias in the circumstances. They strongly criticize the contrary ruling of the dissent as inappropriately drawing a false dichotomy between decisions based on evidence and decisions based on generalizations, and as improperly ignoring social context with an unwarranted confidence in the ideology of colour blindness. While more supportive of the majority's analysis, the authors also find cause for concern, with somewhat different emphasis in the nature …

Restorative Justice: A Conceptual Framework, Jennifer Llewellyn, Robert L. Howse

Reports & Public Policy Documents

Restorative justice has become a fashionable term both in Canadian and foreign legal and social policy discourse. Restorative justice is certainly not a new idea. In fact, it is foundational to our very ideas about law and conflict resolution. There is, nevertheless, a lack of clarity about the meaning of this term. Often it is used as a catchall phrase to refer to any practice which does not look like the mainstream practice of the administration of justice, particularly in the area of criminal justice. Little attention has been spent attempting to articulate what distinguishes a practice as restorative. Rather, …