So I. Okay.
Well, thank you very much for inviting me here to lectures.
It really is an honour to be here and to speak in the room to a number of people whose work I fully enjoy and cite and quote and read judiciously.
And also to be here to talk to you about some issues that are, you know, have been troubling me for some time,
and that I have now come to give some intellectual context to and to present them to you to see your thoughts and your understanding of them.
I also like to thank Sarah for making magic appear on the screen, without which you would have a very boring and less visually pleasing presentation.
However, I do also want to warn you a little bit that one of the things I'm going to do in this talk is I'm going to
take you sort of in a couple of minutes through a case study in order and a little bit of historical context
so that you can be familiar with how Canadian punishment around rights has evolved for the last 20 years
and why the case that I speak about is particularly astonishing given our developments in human rights.
But some of the images are a little bit uncomfortable. They're not, you know, overly graphic.
But for those of you who are sensitive to that, you should be aware that those images are there.
The other piece is that perhaps in questions we can get to this is that I will talk about issues of rights and accountability and punishment,
but the analysis and I'm going to add, could be applicable to any institution.
I really I see it in my job as a university administrator, but I've also see it in the context of some work that I've done in policing.
So for those of you who don't do punishment proper,
you may find the sort of organisational analysis to have some plausible plausibility for you in other areas as well.
Okay. So today I'm going to talk to you about rights, risk and accountability and punishment.
And I'm looking at the patterns that I'm seeing across a number of different sectors
and in particular the patterns that I'm going to talk about here and happen
in punishment that I've also seen in my research on police disclosures of criminal
records and the use of bail and specialised courts and community contexts.
I want to raise some empirical and practical problems into how we balance and preserve human rights in a range of contexts.
Second, using the story of Ashley Smith, who many of you may be aware of,
I'm going to offer a conceptual analysis of how in a country like Canada that sees itself as an international
human rights leader and has genuinely worked very hard at integrating human rights norms into law,
policy and institutional procedures that can fail and have tragic consequences.
Now, the past 20 years have witnessed considerable changes in penal governance.
Contemporary penal scholars have systematically documented how local penal cultures have changed
and absorbed and changed and responded and absorbed the increasing pressures for accountable,
transparent governance alongside the clarification of a risk culture.
Now I've quite deliberately I've called this paper moving targets because what
I want to argue is that it's important to think about institutions as active,
adaptive and able to change as well as to incorporate and co-opt critiques.
That said, it's essential to analyse how broad assemblages of laws, rules,
policies and protocols that govern and limit the right to punish are operationalised and to what effect?
Consequently, analysis of the prison and criminal justice institutions more generally ought to account for how penal institutions change,
even when they're appearing to stay the same.
How they respond to calls for increased accountability and rule of law and human rights, and how these changes exemplify emergent forms of governance.
And whether or not these changes require new models of advocacy, critique and analysis.
The paper examines how human rights concerns in the last 20 years in Canada have been tightly linked
to prisoners rights and advocacy and also integrated thoroughly into Canadian penal discourse,
policy and practices. This period of Canadian punishment is particularly salient because it's also an era that follows a scathing
public reprisal of the Correctional Service of Canada by Madam Justice Louise Arbour in 1986 for being,
and I quote, devoid of a culture of the rule of law and for also significant organisational
efforts that transpired after this proclamation to mitigate these indictments.
Since 1986, the human rights frameworks are increasingly being used by prisoner advocates in Canada to document,
frame and litigate problems of imprisonment.
Simultaneously, corrections has actively positioned itself as a leader in humane corrections and best practice.
There's been tremendous goodwill of those who have been working in the system at
all levels to make meaningful change and to respond to inquest recommendations.
And this is particularly true for the women's prison sector,
where the women's prisons in particular are internationally touted for their best practices.
Now. Human rights are a long standing legal and socio legal concern for both legal scholars,
socio legal scholars and criminology scholars who are interested in limiting the state's right to punish.
It's generally accepted that prisons are spaces that are very vulnerable to abuses of power, mistreatment and rights violations.
This recognition has led to international guidelines such as the UN minimum standards on the treatment of prisoners,
the European Convention of Human Rights, and a wide range of domestic laws and policies.
Punishment and human rights debates look quite different in different countries and their historically contingent and thus their temporal and spatial.
And they have been shaped by broader social and political contexts.
For example, some countries have very few protections for prisoners,
and many of those countries we can think of or name other countries like the United States have a multitude of domestic laws,
but they're not signatories to the UN minimum standards.
Others, like Australia in 1980,
opened a purpose built Alexander Maconochie Prison that was built for the explicit purpose of meeting human rights obligations.
And many European countries, including the UK, are signatories to the European Convention on Human Rights,
which have enforcement capacities different in Canada, where we are UN signatories.
But none of the oversight bodies, including our Prison Inspectorate or our office of the Correctional Investigator,
have any kind of enforcement authority. Nor do any inquests through their recommendations.
Now, arguably, also, the level severity of prison incidents and the public tolerances for mistreatment of prisoners will vary across countries and
local jurisdictions that it is important to situate narrative rights debates and understand the nuances of local penalties,
for they each teach us different lessons. And in this context,
I'm talking about a nation that is fairly developed in its protocols around human rights with respect to punishment and has lots of law,
lots of policy and lots of experience.
And I think that even though we are quite progressive in these elements, there's still something considerable to be learned from our practices.
Now, when you look to the sociological research,
it is shown that prisons are administered differently and that prison administrators differentially struggle to operate them in a way
that allows for the recognition of human rights of prisoners that are strongly emphasised by the courts and also by inspection bodies.
Further, it's clear that in this context, human rights compete with a culture of punishment where and rights are too often
interpreted as privileges and prisoners ascribe the status of the undeserving other.
Scholarly discussions of human rights in the punishment literature tend to
focus on the meaning of cruel and unusual or inhumane or degrading treatment.
The right to life, liberty and security of person. And the basic right to be treated as a human person with dignity.
Legal and policy scholars, however, often frame human rights as an enforcement issue,
and they focus or they potentially focus on the paradox of procedural justice.
Whereas substantive human rights are rarely, if ever, realised by recipients and still others focus on semantics,
cultural shifts and the need for officer training and better selection and screening processes to ensure that guards and managers comply with the law.
And when additional restrictions beyond the loss of liberty can be legitimately placed on prisoners or those in custody.
Now, instead of mapping these inconsistencies between human rights entitlements and the experience of various remedies which we could spend,
I think a considerable amount of time on. I want to focus on a different level of analysis here.
I want to shift this debate and look at the institution itself and look at the organisation.
I want to think about how penal institutions think about and respond to calls for accountability and transparency.
How do the prison administrators actually try to protect rights while simultaneously
mitigating risk and justifying extreme interventions such as prolonged segregation,
chemical sedation restraints, use of force and insufficient programming?
They start from the assumption that institutions are malleable, as I've said,
and that they're open to change, capable of change, and frequently make genuine efforts in this direction.
Of importance here are have varied conceptions of risk and rights interact in an institutional context.
So in this space I take that my understanding as an organisational risk theorist and also as a panels theorist to bring them together to
try to make sense of what's happening in Canada at this particular moment and perhaps in other jurisdictions and in other organisations.
And what I will argue are three points. First, I'm going to argue that prisoner's rights have become organisational risks to be managed.
And I do this by examining the agency of documents or what I call the agency of documents and the micro politics of trouble.
And this will expose how Rights Informed Prison governance variously focuses on the management of events instead of individuals.
And in this context,
I would argue that there's a shift from focusing on the individual and disciplining the penal subjects to focus on the management of the event,
and which is not particularly disciplinary and to some extent abstracted from the management of the individual.
And it's not that one's replacing the other, because I have a tendency to not like these kinds of linear narratives in punishment,
but rather how these things operate simultaneously.
So the focus here will be not on how the prisoner herself is managed, which is the by-product,
but rather the way in which we think about events and how organisations think of these incidents as events.
And I also want to argue that the emerging forms of rights based risk management that we see operating in Canadian prisons
reflect a form of institutional protectionism which is neutralising and impeding the legal mobilisation of rights,
as well as a penal culture where and rights are now increasingly hard to claim despite the prevalence of protections.
So being sociological and straight, the question that comes up is, how do you know this?
There are many basis for my knowledge of the claims that I will make going forward when making preparing this paper and doing this analysis,
which has been working for some time. I use a documentary analysis of the reports of death in custody, inquests pertaining to prisoners.
CSC reports on their institutional responses to the incidents, videotapes and inquest testimonies.
Reports of the Office of the Correctional Investigator, Human Rights Commission,
Auditor General Advocate and other advocacy organisations that detail rights and procedural concerns,
all of which I've been involved in writing or participating in at some particular level.
And most importantly, information acquired from being an expert witness in the case.
I'll talk about the Ashley Smith case, which yielded about 9000 pages of evidence and about 30 different videos on use of force and being a member,
a senior policy advisor for Madam Justice Louise Arbour during the inquiry that happened in 1996.
In these capacities I reviewed hours of videotapes and thousands of pages of evidence, interviews and transcripts,
and then subsequently interviewed a number of different policymakers and attended stakeholder meetings,
all of which left me with the question How does this happen in this context?
And that's when I'm going to take you through trying to understand today.
So let me turn now to the story of Ashley Smith. On October 19th, 2007, a 19 year old Ashley Smith, a troubled self entering prisoner,
died at Grande Valley Institution for Women in Kitchener because the guards hesitated
to enter her cell and remove the ligatures that she had tied around her neck.
The guards hesitated because they were under orders not to enter Ms.
Smith cell until she had stopped breathing. A criminal investigation was immediately launched into the death of Ashley Smith.
Three guards and a supervisor were charged with causing death by criminal negligence.
However, the Crown eventually dismissed the criminal charges and shortly thereafter a coroner's
inquest was struck to examine the death that took over six years to resolve the case.
The coroner's jury ruled in December of 2013 that Ashley Smith's death was a homicide.
Ashley was originally sent to prison at 14 for throwing crab apples at a postman
because she was difficult to manage and she acted out in the youth system.
She ended up incurring new criminal charges while in custody and graduated to the federal women's prison while in custody over 11 and a half months.
Ms. Smith was involved in approximately 150 security events, many of which involved her self-harming behaviours.
When attempting to negotiate Ashley's safety in a self-injurious context, staff would most occasions enter Ms.
Smith's cell in full riot gear and use force as required to remove the ligatures she had tied around her neck.
Ms. Smith was sometimes compliant during these staff interventions and at others not.
It was a regular occurrence for officers to forcefully remove ligatures from her neck as sometimes as many as six or seven times a day.
Inmate Smith would frequently use the opportunity to wrestle with spit bait on responding officers.
The self-initiated choking became so severe that her blood vessels in her face had burst, leaving her permanently discoloured and in loss of sight.
Now the force used to control Ashley often included the use of oxy, spray or mace.
Physical handling and various types of restraints.
In the space of less than one year, Ms.
Smith was moved 17 times among and between three federal penitentiaries, two treatment facilities, two external hospitals and one provincial facility.
Each time she was moved, her segregation clock restarted, meaning that the legally mandated 7 to 30 day review of her case was didn't happen.
And it was justified that it was just start over on day one. Nine of the 17 moves that Ms.
Smith was transferred in occurring across four of Canada's five CSC regions.
And if you have a sense of how big Canada is, it's an enormous country.
During each transfer, she was duct taped to her aeroplane seat.
Each time she entered a new institution, she was immediately placed in segregation with strange restraints and restrictions on her cell effects.
And at times, chemical restraints or drugs were used to keep her calm.
It was questionable as to whether or not she ever consented to taking any of the medications that were used to subdue her.
The majority of the transfers occurred for administrative issues, such as cell availability,
incompatible inmates, staff fatigue, and it had little to do with Ms.
Smith's needs or risks. Each transfer eroded her trust and escalated her acting out behaviours,
making it increasingly more difficult for the correctional service to manage her.
And although she was seen by several medical personnel, she was not diagnosed as mentally ill but rather a borderline personality who was manipulative
and a non-compliant prisoner who I quote used self-injurious behaviour simply to get attention.
When Ashley grieved her conditions of confinement and advocates complained about her treatment, official responses deemed the grievances baseless.
And one of the several of the officers at Grand Valley, however,
went to great lengths to interact with Miss Smith despite the constant threat to their personal safety.
As one officer stated and I quote Funny thing I liked Ashley said one correctional officer.
She had good qualities. She was very funny. And when she was choking herself, I was heartbroken.
The line staff, who were eventually disciplined and scapegoated repeatedly for asking for advice on how to manage Ashley
better so that they could prevent her self-harm and get her help were disciplined for their actions.
Senior management were concerned about the growing number of use of force.
Incident reports that have resulted from staff entering Ashley's cell and line staff ultimately
were ordered not to enter Ashley's cell unless it was determined that she had stopped breathing.
The concern here was reducing the number of incidents of use of force and to prevent her death.
It was not about her treatment or the or overall behavioural modification.
On several occasions the staff broke these orders and went in to try to help her and then they were told not to do that.
In Ashley's last minutes of life, which are captured on a videotape, it's an extremely disturbing scene.
On the tape, she's kneeling on the floor in the southwestern narrow space, in the bed frame on the wall.
She's tied to ligature quite tightly around her neck. Interface is purple.
At one point, a correctional officer opens, opens the door to ascertain whether or not she is breathing, satisfied that she's breathing.
They close the door and wait. Officers confer on a plan of action, a calls made for nursing staff.
They enter the cell, cut the ligature from her neck and withdraw again to assess the situation.
Agonising moments tick by as the officers try to determine now whether the inert woman is breathing or not.
Again, a nursing staff is summonsed and finally a decision is made to enter the cell and begin CPR.
That's the day that she died and they were too late. For many, the death of Ashley Smith was preventable and a predictable tragedy.
And it exemplifies a number of structural inadequacies.
He is of the prison system and the review of all the publicly available commentary on this case represents a litany of systemic problems
and rights violations associated with the management of women prisoners and in particular of women characterised as high risk or high need,
including the use of segregation, physical and chemical restraints.
And perhaps most ironically, before the inquest rules and its 122 recommendations, Don had the Correctional Service of Canada.
In November 2003 said to the inquest, Don't make costly recommendations.
He, quote, noted, There is no free pocket money we can get to, in essence, placing a price tag on human treat on humane treatment.
Now, Ashley Smith's case is tragic, but it's not anomalous.
In addition to her case over the last year alone, we've witnessed the death of Kenneth James in a regional psychiatric facility,
who's also another woman in custody and a large range of male in-custody deaths.
We've seen the birth of a baby on a dirty cell floor in a provincial facility.
Several pending human rights cases that include prolonging the solitary confinement that have led to legal
challenges that have involved the B.C. Civil Liberties Society and the Canadian Civil Liberties Society.
And a range of allegations of inhumane treatment from guards.
And for responding to help for emergency call buttons, as well as a series of other events.
We see increased use of segregation and segregation light.
I don't know if you have segregation lite here,
but segregation is basically when somebody doesn't get legally placed in segregation with a review but gets placed
in super maximum security with all the restrictions that would be imposed on you even if you were in segregation.
Worse than that, we've seen double bunking and segregation, and we've seen broom closets retrofitted into segregation cells and women's facilities.
We've also seen the routine use of pharmacological techniques to medicate disruptive prisoners and even to just placate or manage a prison population.
We've seen prolong cases of segregation, absence of medical care and mental health care, and we've also seen instances of physical and sexual assault.
And importantly, these cases are occurring in federal provincial prisons, and they're equally applying to men, women and youth in custody.
And this points to the systemic character of the issues that are being raised here.
Now, in the years between the Arbour report and the Smith Report,
there's been a series of additional reports documenting concerns about rights violations,
deteriorating prison conditions and a new gender responsive prisons.
And in particular, with the intensification of security in prisons and the addition of new maximum security units,
these reports document another litany of violations and due process concerns, many of which are listed here.
Now, each incident alone and collectively raises some very important points about what a
sentence of imprisonment can mean when the integrity of a sentence is compromised,
and questions about the legal and humane limits of punishment.
The context of women's punishment and the conditions today and the five regional
facilities are strikingly comparable to the what they would look like in the 1980s,
when we first started to advocate for change. Before any progressive changes in women's regimes.
Recommended by the famous report Creating Choices in 1990 occurred or after Justice Arbour in 1996.
And I'm just going to take a minute to give you a slight bit of background on that so that you can understand the context a bit better.
In 1990, the historic task force on federally sentenced women, now 20 year old report Creating Choices,
proposed a fundamental restructuring of the prison that actually died and which actually didn't exist, which is built as a consequence of this report.
And it was meant to rectify a long history of very comparable abuses and rights violations to those that I've just articulated,
Creating Choices proposed a vision for the development of a new women's centred prison
that was culturally sensitive and a model premised on guiding principles of empowerment,
meaningful, responsible choices, shared responsibility, respect and dignity and a supportive environment.
The Task Force on Fair Release sentenced women in 1990 and cases whole for sale.
Acceptance of its recommendations placed corrections in an international
spotlight as a leader in women's corrections because it was undertaking a new,
progressive, culturally sensitive, empowering approach to women's imprisonment.
And we were among the first countries to actively promote gender responsive correctional models.
Now, although many of us, myself included, were quite critical of these reforms,
we were also very proud to see results based on years of advocacy and research in this area.
And so for many of us, this was like a pinnacle and a moment of change that.
We were very enthusiastic about and had hoped would change the direction and culture of punishment in Canada.
Furthermore, the development of new prisons for women where Ashley was confined were also characterised
quite explicitly on the timeline earlier by corrections as a human rights milestone.
Particularly salient now that the U.N. has also just recently passed a new Declaration of Human Rights for women in prison.
However, in April 1984, shortly after CSC committed to the landmark women centred reform initiative,
an incident occurred in the prison for women that threatened its reputation and then shook public confidence in the correctional system.
Here, a popular TV show broadcasts the cell extraction at the prison for women that showed unarmed,
partially closed women prisoners being removed from segregation cells by an all male emergency response team fully decked out in riot gear.
And it also recounted the subsequent mistreatment of those in segregation, which included being left partially clothed and cold, damp,
wet cells and may being subject to body cavity searches on dirty cell floors and being denied basic necessities like toilet paper,
sanitary products, and having little access to legal counsel or advocates.
These are the events that led to the inquiry by Madam Justice Louise Arbour.
Who two years later, in 1996, following the lengthy investigation and extensive policy hearings,
released her report and the then commissioner resigned.
This report signified the most candid and poignant critique of the correctional services of Canada's management of prisoners.
Importantly, our board identified that there were, in fact, in place at that time, as there are now many rules,
policies and laws that are governing the conduct of prison administrations and the frontline prison staff.
And she says that despite the plethora of norm and normative requirements,
once these little evidence of the will to yield to the pragmatic concerns and dictates of rule of law,
she said the rule of law is absent, even though rules are everywhere.
The report made multiple recommendations for change that were directed at ensuring that CSC would become
more administratively accountable to the rule of law and institutionalised protections of prisoners rights.
Several steps were taken by the Correctional Service to formally respond to the concerns identified by Arbour,
and significant efforts were made by corrections to shore up policy and procedures to ensure compliance with the law.
In the 12 years between Ashley's death and the Report of Justice Kabore.
Importantly, all of the incidents that I cite occur after these significant reforms,
and I feel they are important to study because they occur in a highly regulated context that is governed by the rule of law.
As Justice our board noted in 1994, and is perhaps even more so the case today.
Now this slide here just gives you a little bit of sense of some of the laws that are in place.
And this one here breaks all rules of PowerPoint.
You're not supposed to actually read it, but what it does show is sustained engagement with penal issues,
coupled with this coupled with the previous slide show that a plethora of law and procedures governing penal institutions.
So it's not like we didn't take this stuff seriously. It's not like we didn't notice that it happened.
And it's not like we were just saying, Well,
we'll just kind of hope that it passes for the next high media day, but rather over the next last 20 years,
we have actively worked at changing policies, train staff and human rights and work toward a culture of due process and prisoners.
And that's both on the level of advocacy academics and at the level of policymaking.
And we've seen an act of reframing and positioning of women's concerns within the human rights narrative internationally and local.
So all of this context and background of case is meant to make the simple point that it's too simple to describe these events as failed reform,
institutional apathy, or simply some kind of by-product of imprisonment or increased punitive attitudes,
or a typical disjuncture between procedural and substantive justice.
All of these things play a part, and arguments could be cogently made with respect to each.
But I think the picture is far more complicated. So here, here's where I want to argue in explaining what's happening here.
Is that organisationally?
I'm going to suggest that what we've seen over the last 20 years is prisoners rights have become organisational risks to be managed.
And following the recent work of socio legal scholars, I'm going to focus a little bit on the agency of documents.
But first, let me pause and go on to speaking about the first point.
They're the organisational and reputational risk management.
So just as our board's public inquiry and recently the Ashley Smith case have
created what I'd call a reputational crisis for the correctional service,
as CSC is response to this highly publicised violations of human rights and their
subsequent inquiries can be instant understood as a form of reputational risk.
This organisational emphasis on reputational risk repositions human rights as operational risks to be managed alongside other managerial concerns.
Similarly, Murphy and Whitney have argued in their work on Public Sector Human Rights Act norms that in some contexts human rights will be viewed.
Human rights law will be viewed predominantly as a legal risk and hence a technical problem to be managed rather than a source of normative values.
Although undeniably useful, legal and administrative regulations can operate as forms of institutional protectionism,
and they're more apt at protecting the institution from potential legal challenges and
reputational blemishes than protecting the prisoner for the austere status of punishment.
Organisational scholar Michael Power.
Risk scholar Michael Power, who is well known for his earlier work on the Audit Society, argues that risk management,
which was once the aspect of management control, has become a benchmark of good governance for a range of public and private institutions.
In addition, he argues that concerns about uncertainty and risk,
broadly defined have entered into the private and public sector management thinking and become an organising concept.
He characterises risk management as much more than a technical analytic practice,
but argues it also embodies significant values and ideals, not the least of which are accountability and responsibility.
Not surprisingly, corrections, like many criminal justice organisations,
are now routinely conducting corporate risk assessments to diagnose and manage areas of vulnerability.
Powers analysis of the techniques used by organisations to frame primary and secondary risk are particularly of particular relevance.
He argues that primary risks or operational risks are that diverse basket of threats to an
organisation which are variably divine defined based on specific organisational contexts.
For instance, corrections are subject to many primary risks, including the potential for legal and critical claims about the organisation.
These claims can focus on a range of concerns that are limited or that include but are not limited to the treatment of prisoners.
Institutional misstatement. Mismanagement. Compliance with law and human rights.
Suitability of policies and managerial procedures.
Spending and building deficiencies, etc. Here are the plethora of policies and procedures and their related paper document.
Accountable and compliant governance that acts to buffer the prison from.
Hospital litigation and the risk of investigations that can result from pressure of advocates, guards, unions, intense media coverage,
public broadcasts of rights violations that can result in public criticism and from many other areas,
as well as questions about human rights, due process, treatment and accountability.
These threats are what power talks about as reputational risks that need to be organisationally managed and that preoccupy organisations.
So how is this relevant to Canadian corrections? Well, exactly two years after the Cabrera report came out,
corrections emerged on the development of a strategic model to the management of human rights.
And the report that they provided was Human Rights and Corrections A Strategic Approach.
This 1997 report by the Working Group on Human Rights essentially functions as an audit.
It's an example of organisational risk management and practice and it demonstrates how rights are repositioned as risks,
especially if compliance to the law cannot be demonstrated.
The purpose of the working group was to review corrections systems for ensuring compliance to the rule of law in human rights matters.
To provide a general strategic model for evaluating compliance with in the correctional context,
and to present recommendations concerning the Service's own ability to comply and effectively communicate such compliance.
It's not ironic that the word compliance is littered throughout this document.
The report also outlines a corporate strategy for the above mentioned compliance, goals and summary.
It recommends CSC as communication strategy ought to get beyond demonstrating appropriate systems are in place.
That and that they're in the compliance but rather focus on how they comply with law and policy in a statistically satisfactory way.
Even if the increasing proportion of employees claim to support or not support the philosophy not to
be both credible and accountable to the Canadian public and international human rights community,
the report says CSC has to do a number of things, including develop performance data.
Okay, so what we now see on the website from the Correctional Service Canada is a series of reports that look like this, and there's a litany of them.
I've only highlighted a few. But what these reports do is they very actively will look at any critique or any recommendation
of any inquest and then decide that they will include here's the recommendation,
here's whether or not we agree or disagree with this recommendation.
And here's our rationale, our reasoning for it. And this is just one example of where we see this operating.
So, for example, in a recent report of the correctional investigator of 2012 13,
the correctional investigator cites law and he says that in order to compete to comply with law,
we ought to end or prohibit the practice of placing mentally ill prisoners or those at risk of suicide or engage in self-injury.
As Ashleigh said, that was in prolonged periods of segregation.
What we see from CSC is not agreement with this recommendation, not a rejection of this recommendation,
but simply an agreement in principle that is publicly posted for us all to state.
And what it does is appeal quite clearly to the presence of law,
rule and policy that governs the possibility or the need or the potential for
the violation of this particular rights norm and this particular rights claim.
So very quickly, corrections says, yes, well, we have all these administrative measures in place.
We have all these protections in place, which we can also see from the Smith case that didn't work particularly well,
but yet it's there and it enables the continued use of the practice.
Now additionally, what we see happening is the strategic model advocating a series of additional techniques such as the
development of performance data's balancing and quite deliberately balancing good news with bad news,
presenting its own record, reinforcing its measures message that offenders are varying levels of social risk and also very
actively creating media opportunities and making more of their statistical and individual successes.
All of this is about the way in which the correctional organisation comes to communicate its work, what it does and what happens within it,
each of which is strategically aligned with corporate missions and corporate objectives that show compliance with
the rule of law and the embodiment of those rules and institutionalisation of those rules within the organisation.
So as this slide shows and others that what we see here is an external impression of due process that is
actually resulting on the ground and very little substantive change in terms of securing prisoners rights.
The emphasis on rules enables CSC to respond.
Recommendations, but at the same time avoid too committing to cultural and systemic changes that could prevent an incident like a death in custody.
Further, the appearance of more rules and better policy has the effect of creating the
impression that the problems identified by inquests are being actively resolved now,
without question. And corrections, like police in other contexts are and Akin are keenly interested in instituting change in the wake of inquiries,
but not necessarily to get it right at a justice level, but to ensure that policies and procedures are in place to prevent the risk of
the reputation being attacked and potentially the risk of future litigation.
The threat of no accountability is a major organisational risk for corrections or police.
So now in this context, I want to just move to my second point, which is the agency of documents in the production of risk.
And my final point. Now the risky penile subject as well as risk events are produced through institutional practices.
Any form of acting out self-injury, outburst,
violation of rules or whatever happens typically is read as an act of resistance, not survival or coping,
and thus it can be used to justify an intervention and escalate monitoring,
institutional or street charges, informal penalties, or in severe cases, segregation.
Now, each of these incidents that I've mentioned produces paper.
And anybody who's ever worked in an institution knows how much paper gets produced after each event.
So the correctional management of a high risk, high need prisoner like Ashley is going to be a disciplinary practice or incur disciplinary practices,
but it also involves a parallel non disciplinary and routine management of events.
This focus on events has a tendency to decontextualised the individual and his or her pathology.
Prisoners actions are abstracted and viewed through paperwork and organisational processes as a series
of recorded events that ought to be efficiently managed in order to avoid triggering other concerns.
Frequently, incident report narratives of an event from the perspective of IS are written from the perspective of multiple correctional officers.
The totality of these reports renders an event auditable, permanent and linked to an individual's risk profile.
If force is needed to remedy a situation,
an additional report and occasionally a videotape and the use of force is produced to ensure the event is recorded and also again, auditable.
Rarely, if ever, are prisoners outside of the filing of a grievance report offered the opportunity to document their version of the events.
Each of these reports in their collectivity enable the correctional service to document maintenance of safety and security of correctional staff,
prisoners and the institution while being simultaneously accountable to the rule of law.
However, these reports can also legitimise exceptional situations and legitimate substantive rights violations.
Okay. And I want to argue that the reports that are generated in each of these procedures that you'll see here have four functions.
And they are this. First, they narrate and documented chaotic environment created by resistant inmates or staff by
highlighting the sorts of security breaches such as self-injury or disobeying guards.
They work to legitimise the use of austere forms of control and an executive power of prison officials to use
solitary as necessary measures to maintain order and ease restrictive measures in the name of preventative security.
Third, the reports and document that constitute disruptive prisoners and staff as a threat to prison security.
We also see this in the Smith case of non-compliant staff who divert from protocols, even if justified,
are being vulnerable to discipline and characterised as risky in reports that document their conduct.
And for it, they produce an auditable trail of visual and paper evidence that can demonstrate compliance if challenged.
In this context, the penal subject is reduced to a series of proselytise behaviours that are monitored and restrained
with little consideration of agency or the role of context in the production of these behaviours.
In addition to the management or the disciplining of individual, considerable emphasis is placed on making sense of the event or the series of events.
So now returning to the Ashley Smith case,
we can see how documentary narratives in her profile and her file provide minute by minute accounts of an event,
and only occasionally do they infer intent.
The duty logs, the post notes, the incident reports, the use of force reports all produce detailed renderings of events, not individuals.
The way a psychological file might, this paperwork documents compliance with procedures, policies,
and thus law showing quite clearly upon audit or third party inspection that the rules were indeed followed or not.
In Ashley's case, staff in over 100 occasions entered her cell and used various types of force in each event.
Each of these events was videotaped and documented in mounds of paperwork.
Upon reviewing these documents, it was decided by senior managers of the prison at the regional and national levels of Correctional Service of Canada,
that everything was going according to policy and thus by default law.
When errors were observed in the oversight reports, the report stated things like the camera did not capture of the team members.
The date and time were not verbally stated. Decontamination did not happen as per policy.
The nurse decontaminated her through the mail slot and not in her presence was absent.
And these narratives are bigger. Questions about the appropriateness of force restraints,
strip searches and the use of nonconsensual pharmacological interventions for prisoners in repeated crisis is, well, tempting to self-injury.
Questions that the line staff acting with Ashleigh raised and where in some instances
discipline for when they acted in accordance to their own senses of substantive justice.
The accumulation of reports from multiple institutions tended to focus not so much on how to holistically manage, Ashleigh, and the least restrictive,
empowering sense of manner, but rather how do we prevent an incidents and manage, Ashleigh, in a way that does not generate additional uses of force.
And since Ashley was prone to self infection,
until she lost consciousness and sometimes what they called playing possum or pretending to lose consciousness,
but then struggling with guards who came into her cell to cut off the ligatures
or restraint her orders were given from senior management to the guards.
Do not enter the cell until she stopped breathing.
This order was partly to blame for Ashley's death, and consequently, throughout my cross-examination,
I was repeatedly asked if keeping Ashley in a segregation cell or a restraint chair or
restraining order to a bed was not preferable to using force to cut ligatures off her neck.
After all, it would have prevented the ultimate event, her death and thus the inquest.
The paper trails around the management of Ashley are a double edged sword.
On one hand, they show a series of inhumane interventions used to keep her alive, both on videotape and on paper.
But they also clearly document adherence to procedure.
There's little formal space here to question the practices of prolonged segregation, of a self injuring inmate,
or the use of restraints or chemical, chemical or physical, because they're seen as justifiable for the reasons of safety and security.
The rules and the policy framework did little to respect or protect Ashley's rights or autonomy,
or prevent harm or death, or even her right to self injure.
Though documents such as briefing notes or reports through documents such as briefing notes and reports.
Her self-injurious behaviour is repeatedly characterised as an event that threatened the prison order that required force to control,
and that use of force made the prison vulnerable to rights litigation.
It occupied a significant amount of institutional resources and person power to contain these narratives recasts
her right to treatment and life saving interventions into an issue around risk that need to be managed.
The safety of guards and the general order of segregation were threatened by her behaviour.
So in addition to this, we've also seen the emergence within corrections to a number of other strategies of institutional protectionism.
So one of the reasons strategies that we've seen in the last 20 years intensifying and within the last 3 to 4 is
increased restricted access to information and prisoners that are needed by advocates for legal mobilisation.
This is important because corrections not allowing external researchers,
advocates and in one case the member of the I'll turn a member of the opposition,
member of one of our leading national parties into prisons to see what was happening means
that there's an inability to know here and there's an inability to know a whole context,
which means it's very difficult to construct a counter-narrative about what happens inside
in the face of the presence of documents that clearly show compliance to the rule of law.
And I have to admit that as an aside and as somebody who was hired to review all these documents and to comment on them,
they do actually also adherence to the rules and the policies as written within corrections.
But they also all show egregious interventions. And in the absence of a lack of policy, a lack of following or procedure,
it becomes very difficult to make an argument or to construct a counter narrative, as I've talked about already.
And this also produces a penal culture where rights are getting really difficult to claim or to legally mobilise or to litigate within the courts,
and has a tendency of silencing some of the advocates who are complicit in the failed
solutions and brought to the table as stakeholders and advisors in these cases.
So in conclusion, I've argued that despite the promise, the security of the prison is not devoid of human rights protections.
Correctional systems, by their very nature, are very dependent and heavily dependent on rules to ensure fair and humane treatment of
offenders and orderly contact within conduct within a very difficult social relationship.
In fact, volumes,
numbers of uses of force and on prisoner incidents suggest that CSC is making an effort to appear compliant with international human rights standards.
But the rule of law and due process are important to CSC.
But as this example shows have rights violations are being framed as organisational risks to be managed through procedural compliance.
Second, it demonstrates the importance of documents in creating this perception of crisis as a disastrous.
Are important pressures for change and risk management and PR crisis as argue simply don't just occur and said they are
organised and they have their origins in the failures of management and intelligent processes over a long period of time.
In this case, more rules are not needed, for they in themselves are part of the difficulty.
Rather than seeking a promulgation of new norms.
It might be seem more pressing, or at least as least as pressing to ask how the existing norms have been developed and what sort of knowledge,
practices, experiences and tendencies they appear to be fostering.
And by applying this line of reasoning to the ideal of rights, accountability and penal risk and insecurity,
we may be able to raise new questions and produce new answers and some questions that I would leave you to think about cases like this.
Is there given that we have some difficulties with rules and we have plenty of them?
What does a meaningful penal accountability actually look like?
And what happens to the integrity of a sentence when the experience of imprisonment becomes inconsistent and unpredictable,
even in the face of procedures and laws meant to engender consistency and fairness?
And what is the right balance between prevention, care and rights?
Thank you.