1 00:00:01,330 --> 00:00:04,930 So I. Okay. 2 00:00:13,500 --> 00:00:16,830 Well, thank you very much for inviting me here to lectures. 3 00:00:16,920 --> 00:00:27,300 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. 4 00:00:27,870 --> 00:00:32,969 And also to be here to talk to you about some issues that are, you know, have been troubling me for some time, 5 00:00:32,970 --> 00:00:40,470 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. 6 00:00:41,020 --> 00:00:50,130 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. 7 00:00:50,610 --> 00:00:55,860 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 8 00:00:55,860 --> 00:01:01,889 take you sort of in a couple of minutes through a case study in order and a little bit of historical context 9 00:01:01,890 --> 00:01:08,190 so that you can be familiar with how Canadian punishment around rights has evolved for the last 20 years 10 00:01:08,190 --> 00:01:14,940 and why the case that I speak about is particularly astonishing given our developments in human rights. 11 00:01:15,210 --> 00:01:19,500 But some of the images are a little bit uncomfortable. They're not, you know, overly graphic. 12 00:01:19,500 --> 00:01:23,520 But for those of you who are sensitive to that, you should be aware that those images are there. 13 00:01:24,270 --> 00:01:32,129 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, 14 00:01:32,130 --> 00:01:36,750 but the analysis and I'm going to add, could be applicable to any institution. 15 00:01:37,440 --> 00:01:43,829 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. 16 00:01:43,830 --> 00:01:46,500 So for those of you who don't do punishment proper, 17 00:01:46,500 --> 00:01:53,760 you may find the sort of organisational analysis to have some plausible plausibility for you in other areas as well. 18 00:01:56,010 --> 00:02:01,890 Okay. So today I'm going to talk to you about rights, risk and accountability and punishment. 19 00:02:03,300 --> 00:02:09,000 And I'm looking at the patterns that I'm seeing across a number of different sectors 20 00:02:09,000 --> 00:02:12,360 and in particular the patterns that I'm going to talk about here and happen 21 00:02:12,360 --> 00:02:16,019 in punishment that I've also seen in my research on police disclosures of criminal 22 00:02:16,020 --> 00:02:20,100 records and the use of bail and specialised courts and community contexts. 23 00:02:20,610 --> 00:02:28,110 I want to raise some empirical and practical problems into how we balance and preserve human rights in a range of contexts. 24 00:02:29,250 --> 00:02:33,060 Second, using the story of Ashley Smith, who many of you may be aware of, 25 00:02:33,180 --> 00:02:39,839 I'm going to offer a conceptual analysis of how in a country like Canada that sees itself as an international 26 00:02:39,840 --> 00:02:45,720 human rights leader and has genuinely worked very hard at integrating human rights norms into law, 27 00:02:46,110 --> 00:02:52,020 policy and institutional procedures that can fail and have tragic consequences. 28 00:02:52,770 --> 00:02:58,050 Now, the past 20 years have witnessed considerable changes in penal governance. 29 00:02:59,100 --> 00:03:06,329 Contemporary penal scholars have systematically documented how local penal cultures have changed 30 00:03:06,330 --> 00:03:12,239 and absorbed and changed and responded and absorbed the increasing pressures for accountable, 31 00:03:12,240 --> 00:03:17,340 transparent governance alongside the clarification of a risk culture. 32 00:03:24,400 --> 00:03:29,110 Now I've quite deliberately I've called this paper moving targets because what 33 00:03:29,110 --> 00:03:33,669 I want to argue is that it's important to think about institutions as active, 34 00:03:33,670 --> 00:03:38,770 adaptive and able to change as well as to incorporate and co-opt critiques. 35 00:03:39,310 --> 00:03:44,200 That said, it's essential to analyse how broad assemblages of laws, rules, 36 00:03:44,200 --> 00:03:50,950 policies and protocols that govern and limit the right to punish are operationalised and to what effect? 37 00:03:51,640 --> 00:04:00,490 Consequently, analysis of the prison and criminal justice institutions more generally ought to account for how penal institutions change, 38 00:04:00,850 --> 00:04:02,860 even when they're appearing to stay the same. 39 00:04:03,670 --> 00:04:12,790 How they respond to calls for increased accountability and rule of law and human rights, and how these changes exemplify emergent forms of governance. 40 00:04:13,270 --> 00:04:19,030 And whether or not these changes require new models of advocacy, critique and analysis. 41 00:04:20,560 --> 00:04:27,639 The paper examines how human rights concerns in the last 20 years in Canada have been tightly linked 42 00:04:27,640 --> 00:04:33,790 to prisoners rights and advocacy and also integrated thoroughly into Canadian penal discourse, 43 00:04:33,790 --> 00:04:42,970 policy and practices. This period of Canadian punishment is particularly salient because it's also an era that follows a scathing 44 00:04:43,210 --> 00:04:50,230 public reprisal of the Correctional Service of Canada by Madam Justice Louise Arbour in 1986 for being, 45 00:04:50,230 --> 00:04:57,910 and I quote, devoid of a culture of the rule of law and for also significant organisational 46 00:04:57,910 --> 00:05:02,530 efforts that transpired after this proclamation to mitigate these indictments. 47 00:05:03,640 --> 00:05:11,230 Since 1986, the human rights frameworks are increasingly being used by prisoner advocates in Canada to document, 48 00:05:11,680 --> 00:05:14,320 frame and litigate problems of imprisonment. 49 00:05:14,920 --> 00:05:23,500 Simultaneously, corrections has actively positioned itself as a leader in humane corrections and best practice. 50 00:05:24,430 --> 00:05:28,089 There's been tremendous goodwill of those who have been working in the system at 51 00:05:28,090 --> 00:05:32,560 all levels to make meaningful change and to respond to inquest recommendations. 52 00:05:32,980 --> 00:05:35,890 And this is particularly true for the women's prison sector, 53 00:05:36,220 --> 00:05:40,870 where the women's prisons in particular are internationally touted for their best practices. 54 00:05:44,360 --> 00:05:51,620 Now. Human rights are a long standing legal and socio legal concern for both legal scholars, 55 00:05:51,620 --> 00:05:56,540 socio legal scholars and criminology scholars who are interested in limiting the state's right to punish. 56 00:05:57,110 --> 00:06:04,700 It's generally accepted that prisons are spaces that are very vulnerable to abuses of power, mistreatment and rights violations. 57 00:06:05,240 --> 00:06:10,610 This recognition has led to international guidelines such as the UN minimum standards on the treatment of prisoners, 58 00:06:10,820 --> 00:06:16,340 the European Convention of Human Rights, and a wide range of domestic laws and policies. 59 00:06:17,180 --> 00:06:25,820 Punishment and human rights debates look quite different in different countries and their historically contingent and thus their temporal and spatial. 60 00:06:26,060 --> 00:06:30,440 And they have been shaped by broader social and political contexts. 61 00:06:32,030 --> 00:06:35,479 For example, some countries have very few protections for prisoners, 62 00:06:35,480 --> 00:06:42,830 and many of those countries we can think of or name other countries like the United States have a multitude of domestic laws, 63 00:06:43,010 --> 00:06:46,610 but they're not signatories to the UN minimum standards. 64 00:06:47,270 --> 00:06:49,880 Others, like Australia in 1980, 65 00:06:49,910 --> 00:06:58,100 opened a purpose built Alexander Maconochie Prison that was built for the explicit purpose of meeting human rights obligations. 66 00:06:58,910 --> 00:07:04,550 And many European countries, including the UK, are signatories to the European Convention on Human Rights, 67 00:07:04,850 --> 00:07:11,030 which have enforcement capacities different in Canada, where we are UN signatories. 68 00:07:11,210 --> 00:07:16,700 But none of the oversight bodies, including our Prison Inspectorate or our office of the Correctional Investigator, 69 00:07:16,910 --> 00:07:21,380 have any kind of enforcement authority. Nor do any inquests through their recommendations. 70 00:07:22,730 --> 00:07:30,230 Now, arguably, also, the level severity of prison incidents and the public tolerances for mistreatment of prisoners will vary across countries and 71 00:07:30,230 --> 00:07:37,430 local jurisdictions that it is important to situate narrative rights debates and understand the nuances of local penalties, 72 00:07:37,730 --> 00:07:41,180 for they each teach us different lessons. And in this context, 73 00:07:41,180 --> 00:07:48,890 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, 74 00:07:49,160 --> 00:07:51,469 lots of policy and lots of experience. 75 00:07:51,470 --> 00:07:57,680 And I think that even though we are quite progressive in these elements, there's still something considerable to be learned from our practices. 76 00:07:58,880 --> 00:08:00,980 Now, when you look to the sociological research, 77 00:08:00,980 --> 00:08:08,000 it is shown that prisons are administered differently and that prison administrators differentially struggle to operate them in a way 78 00:08:08,000 --> 00:08:16,130 that allows for the recognition of human rights of prisoners that are strongly emphasised by the courts and also by inspection bodies. 79 00:08:18,580 --> 00:08:24,790 Further, it's clear that in this context, human rights compete with a culture of punishment where and rights are too often 80 00:08:24,790 --> 00:08:29,350 interpreted as privileges and prisoners ascribe the status of the undeserving other. 81 00:08:30,820 --> 00:08:34,180 Scholarly discussions of human rights in the punishment literature tend to 82 00:08:34,180 --> 00:08:39,580 focus on the meaning of cruel and unusual or inhumane or degrading treatment. 83 00:08:39,910 --> 00:08:46,780 The right to life, liberty and security of person. And the basic right to be treated as a human person with dignity. 84 00:08:47,710 --> 00:08:52,870 Legal and policy scholars, however, often frame human rights as an enforcement issue, 85 00:08:53,470 --> 00:08:57,550 and they focus or they potentially focus on the paradox of procedural justice. 86 00:08:57,790 --> 00:09:04,990 Whereas substantive human rights are rarely, if ever, realised by recipients and still others focus on semantics, 87 00:09:05,080 --> 00:09:13,210 cultural shifts and the need for officer training and better selection and screening processes to ensure that guards and managers comply with the law. 88 00:09:14,110 --> 00:09:20,800 And when additional restrictions beyond the loss of liberty can be legitimately placed on prisoners or those in custody. 89 00:09:21,970 --> 00:09:29,260 Now, instead of mapping these inconsistencies between human rights entitlements and the experience of various remedies which we could spend, 90 00:09:29,260 --> 00:09:34,780 I think a considerable amount of time on. I want to focus on a different level of analysis here. 91 00:09:35,380 --> 00:09:40,600 I want to shift this debate and look at the institution itself and look at the organisation. 92 00:09:41,080 --> 00:09:47,710 I want to think about how penal institutions think about and respond to calls for accountability and transparency. 93 00:09:48,460 --> 00:09:53,140 How do the prison administrators actually try to protect rights while simultaneously 94 00:09:53,380 --> 00:09:58,000 mitigating risk and justifying extreme interventions such as prolonged segregation, 95 00:09:58,000 --> 00:10:02,770 chemical sedation restraints, use of force and insufficient programming? 96 00:10:03,640 --> 00:10:08,260 They start from the assumption that institutions are malleable, as I've said, 97 00:10:08,410 --> 00:10:15,100 and that they're open to change, capable of change, and frequently make genuine efforts in this direction. 98 00:10:17,620 --> 00:10:24,819 Of importance here are have varied conceptions of risk and rights interact in an institutional context. 99 00:10:24,820 --> 00:10:33,340 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 100 00:10:33,340 --> 00:10:40,690 try to make sense of what's happening in Canada at this particular moment and perhaps in other jurisdictions and in other organisations. 101 00:10:41,020 --> 00:10:48,730 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. 102 00:10:49,600 --> 00:10:57,730 And I do this by examining the agency of documents or what I call the agency of documents and the micro politics of trouble. 103 00:10:58,360 --> 00:11:05,650 And this will expose how Rights Informed Prison governance variously focuses on the management of events instead of individuals. 104 00:11:06,070 --> 00:11:07,120 And in this context, 105 00:11:07,120 --> 00:11:16,870 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, 106 00:11:17,170 --> 00:11:22,660 and which is not particularly disciplinary and to some extent abstracted from the management of the individual. 107 00:11:22,930 --> 00:11:29,170 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, 108 00:11:29,380 --> 00:11:32,470 but rather how these things operate simultaneously. 109 00:11:32,830 --> 00:11:38,500 So the focus here will be not on how the prisoner herself is managed, which is the by-product, 110 00:11:38,500 --> 00:11:44,020 but rather the way in which we think about events and how organisations think of these incidents as events. 111 00:11:45,040 --> 00:11:51,940 And I also want to argue that the emerging forms of rights based risk management that we see operating in Canadian prisons 112 00:11:52,390 --> 00:11:58,900 reflect a form of institutional protectionism which is neutralising and impeding the legal mobilisation of rights, 113 00:11:58,900 --> 00:12:05,350 as well as a penal culture where and rights are now increasingly hard to claim despite the prevalence of protections. 114 00:12:07,760 --> 00:12:13,490 So being sociological and straight, the question that comes up is, how do you know this? 115 00:12:14,840 --> 00:12:25,129 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, 116 00:12:25,130 --> 00:12:32,150 which has been working for some time. I use a documentary analysis of the reports of death in custody, inquests pertaining to prisoners. 117 00:12:33,050 --> 00:12:38,510 CSC reports on their institutional responses to the incidents, videotapes and inquest testimonies. 118 00:12:39,140 --> 00:12:42,530 Reports of the Office of the Correctional Investigator, Human Rights Commission, 119 00:12:42,530 --> 00:12:48,140 Auditor General Advocate and other advocacy organisations that detail rights and procedural concerns, 120 00:12:48,980 --> 00:12:54,380 all of which I've been involved in writing or participating in at some particular level. 121 00:12:54,980 --> 00:12:59,420 And most importantly, information acquired from being an expert witness in the case. 122 00:12:59,480 --> 00:13:07,400 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, 123 00:13:07,430 --> 00:13:13,640 a senior policy advisor for Madam Justice Louise Arbour during the inquiry that happened in 1996. 124 00:13:14,510 --> 00:13:20,060 In these capacities I reviewed hours of videotapes and thousands of pages of evidence, interviews and transcripts, 125 00:13:20,510 --> 00:13:24,890 and then subsequently interviewed a number of different policymakers and attended stakeholder meetings, 126 00:13:25,400 --> 00:13:30,110 all of which left me with the question How does this happen in this context? 127 00:13:30,140 --> 00:13:33,740 And that's when I'm going to take you through trying to understand today. 128 00:13:35,420 --> 00:13:45,709 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, 129 00:13:45,710 --> 00:13:50,270 died at Grande Valley Institution for Women in Kitchener because the guards hesitated 130 00:13:50,270 --> 00:13:54,170 to enter her cell and remove the ligatures that she had tied around her neck. 131 00:13:54,830 --> 00:13:58,129 The guards hesitated because they were under orders not to enter Ms. 132 00:13:58,130 --> 00:14:05,060 Smith cell until she had stopped breathing. A criminal investigation was immediately launched into the death of Ashley Smith. 133 00:14:05,360 --> 00:14:10,100 Three guards and a supervisor were charged with causing death by criminal negligence. 134 00:14:10,430 --> 00:14:15,079 However, the Crown eventually dismissed the criminal charges and shortly thereafter a coroner's 135 00:14:15,080 --> 00:14:19,940 inquest was struck to examine the death that took over six years to resolve the case. 136 00:14:20,390 --> 00:14:26,450 The coroner's jury ruled in December of 2013 that Ashley Smith's death was a homicide. 137 00:14:27,470 --> 00:14:32,360 Ashley was originally sent to prison at 14 for throwing crab apples at a postman 138 00:14:33,440 --> 00:14:36,920 because she was difficult to manage and she acted out in the youth system. 139 00:14:37,190 --> 00:14:45,440 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. 140 00:14:45,650 --> 00:14:52,400 Ms. Smith was involved in approximately 150 security events, many of which involved her self-harming behaviours. 141 00:14:53,270 --> 00:15:00,680 When attempting to negotiate Ashley's safety in a self-injurious context, staff would most occasions enter Ms. 142 00:15:01,070 --> 00:15:06,440 Smith's cell in full riot gear and use force as required to remove the ligatures she had tied around her neck. 143 00:15:07,280 --> 00:15:12,410 Ms. Smith was sometimes compliant during these staff interventions and at others not. 144 00:15:13,130 --> 00:15:20,090 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. 145 00:15:20,720 --> 00:15:27,650 Inmate Smith would frequently use the opportunity to wrestle with spit bait on responding officers. 146 00:15:28,250 --> 00:15:35,810 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. 147 00:15:37,460 --> 00:15:42,230 Now the force used to control Ashley often included the use of oxy, spray or mace. 148 00:15:42,560 --> 00:15:45,680 Physical handling and various types of restraints. 149 00:15:48,120 --> 00:15:50,399 In the space of less than one year, Ms. 150 00:15:50,400 --> 00:16:00,360 Smith was moved 17 times among and between three federal penitentiaries, two treatment facilities, two external hospitals and one provincial facility. 151 00:16:00,990 --> 00:16:11,879 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. 152 00:16:11,880 --> 00:16:17,700 And it was justified that it was just start over on day one. Nine of the 17 moves that Ms. 153 00:16:17,700 --> 00:16:23,189 Smith was transferred in occurring across four of Canada's five CSC regions. 154 00:16:23,190 --> 00:16:26,280 And if you have a sense of how big Canada is, it's an enormous country. 155 00:16:27,330 --> 00:16:30,240 During each transfer, she was duct taped to her aeroplane seat. 156 00:16:30,660 --> 00:16:37,260 Each time she entered a new institution, she was immediately placed in segregation with strange restraints and restrictions on her cell effects. 157 00:16:37,620 --> 00:16:42,270 And at times, chemical restraints or drugs were used to keep her calm. 158 00:16:42,720 --> 00:16:47,910 It was questionable as to whether or not she ever consented to taking any of the medications that were used to subdue her. 159 00:16:48,960 --> 00:16:54,990 The majority of the transfers occurred for administrative issues, such as cell availability, 160 00:16:55,170 --> 00:16:59,489 incompatible inmates, staff fatigue, and it had little to do with Ms. 161 00:16:59,490 --> 00:17:07,080 Smith's needs or risks. Each transfer eroded her trust and escalated her acting out behaviours, 162 00:17:07,530 --> 00:17:11,070 making it increasingly more difficult for the correctional service to manage her. 163 00:17:11,640 --> 00:17:19,950 And although she was seen by several medical personnel, she was not diagnosed as mentally ill but rather a borderline personality who was manipulative 164 00:17:19,950 --> 00:17:25,110 and a non-compliant prisoner who I quote used self-injurious behaviour simply to get attention. 165 00:17:29,960 --> 00:17:37,760 When Ashley grieved her conditions of confinement and advocates complained about her treatment, official responses deemed the grievances baseless. 166 00:17:38,960 --> 00:17:42,110 And one of the several of the officers at Grand Valley, however, 167 00:17:42,440 --> 00:17:48,320 went to great lengths to interact with Miss Smith despite the constant threat to their personal safety. 168 00:17:48,800 --> 00:17:54,770 As one officer stated and I quote Funny thing I liked Ashley said one correctional officer. 169 00:17:55,070 --> 00:18:00,110 She had good qualities. She was very funny. And when she was choking herself, I was heartbroken. 170 00:18:01,040 --> 00:18:07,189 The line staff, who were eventually disciplined and scapegoated repeatedly for asking for advice on how to manage Ashley 171 00:18:07,190 --> 00:18:14,450 better so that they could prevent her self-harm and get her help were disciplined for their actions. 172 00:18:15,140 --> 00:18:18,230 Senior management were concerned about the growing number of use of force. 173 00:18:18,230 --> 00:18:23,450 Incident reports that have resulted from staff entering Ashley's cell and line staff ultimately 174 00:18:23,450 --> 00:18:27,860 were ordered not to enter Ashley's cell unless it was determined that she had stopped breathing. 175 00:18:28,490 --> 00:18:34,340 The concern here was reducing the number of incidents of use of force and to prevent her death. 176 00:18:34,580 --> 00:18:39,230 It was not about her treatment or the or overall behavioural modification. 177 00:18:40,250 --> 00:18:47,960 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. 178 00:18:48,740 --> 00:18:54,020 In Ashley's last minutes of life, which are captured on a videotape, it's an extremely disturbing scene. 179 00:18:54,050 --> 00:18:58,250 On the tape, she's kneeling on the floor in the southwestern narrow space, in the bed frame on the wall. 180 00:18:58,460 --> 00:19:02,330 She's tied to ligature quite tightly around her neck. Interface is purple. 181 00:19:03,170 --> 00:19:10,280 At one point, a correctional officer opens, opens the door to ascertain whether or not she is breathing, satisfied that she's breathing. 182 00:19:10,760 --> 00:19:17,790 They close the door and wait. Officers confer on a plan of action, a calls made for nursing staff. 183 00:19:17,810 --> 00:19:22,850 They enter the cell, cut the ligature from her neck and withdraw again to assess the situation. 184 00:19:29,850 --> 00:19:35,220 Agonising moments tick by as the officers try to determine now whether the inert woman is breathing or not. 185 00:19:35,580 --> 00:19:41,400 Again, a nursing staff is summonsed and finally a decision is made to enter the cell and begin CPR. 186 00:19:42,360 --> 00:19:53,430 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. 187 00:19:53,580 --> 00:19:56,040 And it exemplifies a number of structural inadequacies. 188 00:19:56,150 --> 00:20:03,809 He is of the prison system and the review of all the publicly available commentary on this case represents a litany of systemic problems 189 00:20:03,810 --> 00:20:11,340 and rights violations associated with the management of women prisoners and in particular of women characterised as high risk or high need, 190 00:20:11,880 --> 00:20:15,420 including the use of segregation, physical and chemical restraints. 191 00:20:16,230 --> 00:20:23,700 And perhaps most ironically, before the inquest rules and its 122 recommendations, Don had the Correctional Service of Canada. 192 00:20:23,940 --> 00:20:29,430 In November 2003 said to the inquest, Don't make costly recommendations. 193 00:20:29,640 --> 00:20:37,140 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. 194 00:20:38,130 --> 00:20:41,970 Now, Ashley Smith's case is tragic, but it's not anomalous. 195 00:20:43,380 --> 00:20:50,370 In addition to her case over the last year alone, we've witnessed the death of Kenneth James in a regional psychiatric facility, 196 00:20:50,370 --> 00:20:54,570 who's also another woman in custody and a large range of male in-custody deaths. 197 00:20:54,810 --> 00:20:58,230 We've seen the birth of a baby on a dirty cell floor in a provincial facility. 198 00:20:58,680 --> 00:21:03,989 Several pending human rights cases that include prolonging the solitary confinement that have led to legal 199 00:21:03,990 --> 00:21:10,080 challenges that have involved the B.C. Civil Liberties Society and the Canadian Civil Liberties Society. 200 00:21:10,860 --> 00:21:15,120 And a range of allegations of inhumane treatment from guards. 201 00:21:15,120 --> 00:21:20,250 And for responding to help for emergency call buttons, as well as a series of other events. 202 00:21:20,730 --> 00:21:24,150 We see increased use of segregation and segregation light. 203 00:21:24,180 --> 00:21:26,040 I don't know if you have segregation lite here, 204 00:21:26,040 --> 00:21:32,219 but segregation is basically when somebody doesn't get legally placed in segregation with a review but gets placed 205 00:21:32,220 --> 00:21:37,620 in super maximum security with all the restrictions that would be imposed on you even if you were in segregation. 206 00:21:38,250 --> 00:21:45,720 Worse than that, we've seen double bunking and segregation, and we've seen broom closets retrofitted into segregation cells and women's facilities. 207 00:21:46,350 --> 00:21:53,790 We've also seen the routine use of pharmacological techniques to medicate disruptive prisoners and even to just placate or manage a prison population. 208 00:21:54,510 --> 00:22:03,120 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. 209 00:22:03,390 --> 00:22:11,850 And importantly, these cases are occurring in federal provincial prisons, and they're equally applying to men, women and youth in custody. 210 00:22:12,120 --> 00:22:16,470 And this points to the systemic character of the issues that are being raised here. 211 00:22:18,330 --> 00:22:22,620 Now, in the years between the Arbour report and the Smith Report, 212 00:22:23,460 --> 00:22:27,480 there's been a series of additional reports documenting concerns about rights violations, 213 00:22:27,480 --> 00:22:30,960 deteriorating prison conditions and a new gender responsive prisons. 214 00:22:31,380 --> 00:22:36,590 And in particular, with the intensification of security in prisons and the addition of new maximum security units, 215 00:22:37,080 --> 00:22:44,340 these reports document another litany of violations and due process concerns, many of which are listed here. 216 00:22:45,390 --> 00:22:50,879 Now, each incident alone and collectively raises some very important points about what a 217 00:22:50,880 --> 00:22:55,820 sentence of imprisonment can mean when the integrity of a sentence is compromised, 218 00:22:55,830 --> 00:22:58,860 and questions about the legal and humane limits of punishment. 219 00:22:59,490 --> 00:23:03,629 The context of women's punishment and the conditions today and the five regional 220 00:23:03,630 --> 00:23:09,209 facilities are strikingly comparable to the what they would look like in the 1980s, 221 00:23:09,210 --> 00:23:14,460 when we first started to advocate for change. Before any progressive changes in women's regimes. 222 00:23:14,880 --> 00:23:22,890 Recommended by the famous report Creating Choices in 1990 occurred or after Justice Arbour in 1996. 223 00:23:23,220 --> 00:23:28,950 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. 224 00:23:29,610 --> 00:23:36,600 In 1990, the historic task force on federally sentenced women, now 20 year old report Creating Choices, 225 00:23:36,900 --> 00:23:44,430 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. 226 00:23:45,150 --> 00:23:52,200 And it was meant to rectify a long history of very comparable abuses and rights violations to those that I've just articulated, 227 00:23:52,920 --> 00:23:56,579 Creating Choices proposed a vision for the development of a new women's centred prison 228 00:23:56,580 --> 00:24:01,590 that was culturally sensitive and a model premised on guiding principles of empowerment, 229 00:24:01,950 --> 00:24:08,100 meaningful, responsible choices, shared responsibility, respect and dignity and a supportive environment. 230 00:24:08,730 --> 00:24:15,150 The Task Force on Fair Release sentenced women in 1990 and cases whole for sale. 231 00:24:15,150 --> 00:24:19,110 Acceptance of its recommendations placed corrections in an international 232 00:24:19,110 --> 00:24:23,429 spotlight as a leader in women's corrections because it was undertaking a new, 233 00:24:23,430 --> 00:24:27,150 progressive, culturally sensitive, empowering approach to women's imprisonment. 234 00:24:27,540 --> 00:24:32,700 And we were among the first countries to actively promote gender responsive correctional models. 235 00:24:33,090 --> 00:24:37,050 Now, although many of us, myself included, were quite critical of these reforms, 236 00:24:37,230 --> 00:24:43,260 we were also very proud to see results based on years of advocacy and research in this area. 237 00:24:43,560 --> 00:24:47,100 And so for many of us, this was like a pinnacle and a moment of change that. 238 00:24:47,140 --> 00:24:52,960 We were very enthusiastic about and had hoped would change the direction and culture of punishment in Canada. 239 00:24:55,120 --> 00:25:00,279 Furthermore, the development of new prisons for women where Ashley was confined were also characterised 240 00:25:00,280 --> 00:25:05,140 quite explicitly on the timeline earlier by corrections as a human rights milestone. 241 00:25:05,950 --> 00:25:12,280 Particularly salient now that the U.N. has also just recently passed a new Declaration of Human Rights for women in prison. 242 00:25:13,660 --> 00:25:19,299 However, in April 1984, shortly after CSC committed to the landmark women centred reform initiative, 243 00:25:19,300 --> 00:25:25,150 an incident occurred in the prison for women that threatened its reputation and then shook public confidence in the correctional system. 244 00:25:25,870 --> 00:25:31,479 Here, a popular TV show broadcasts the cell extraction at the prison for women that showed unarmed, 245 00:25:31,480 --> 00:25:39,130 partially closed women prisoners being removed from segregation cells by an all male emergency response team fully decked out in riot gear. 246 00:25:39,670 --> 00:25:48,040 And it also recounted the subsequent mistreatment of those in segregation, which included being left partially clothed and cold, damp, 247 00:25:48,040 --> 00:25:55,869 wet cells and may being subject to body cavity searches on dirty cell floors and being denied basic necessities like toilet paper, 248 00:25:55,870 --> 00:25:59,920 sanitary products, and having little access to legal counsel or advocates. 249 00:26:00,640 --> 00:26:05,200 These are the events that led to the inquiry by Madam Justice Louise Arbour. 250 00:26:08,680 --> 00:26:15,040 Who two years later, in 1996, following the lengthy investigation and extensive policy hearings, 251 00:26:15,040 --> 00:26:17,950 released her report and the then commissioner resigned. 252 00:26:18,190 --> 00:26:25,120 This report signified the most candid and poignant critique of the correctional services of Canada's management of prisoners. 253 00:26:25,570 --> 00:26:33,040 Importantly, our board identified that there were, in fact, in place at that time, as there are now many rules, 254 00:26:33,040 --> 00:26:38,650 policies and laws that are governing the conduct of prison administrations and the frontline prison staff. 255 00:26:39,130 --> 00:26:43,090 And she says that despite the plethora of norm and normative requirements, 256 00:26:43,420 --> 00:26:49,120 once these little evidence of the will to yield to the pragmatic concerns and dictates of rule of law, 257 00:26:49,600 --> 00:26:53,920 she said the rule of law is absent, even though rules are everywhere. 258 00:26:54,700 --> 00:27:04,269 The report made multiple recommendations for change that were directed at ensuring that CSC would become 259 00:27:04,270 --> 00:27:09,370 more administratively accountable to the rule of law and institutionalised protections of prisoners rights. 260 00:27:09,790 --> 00:27:15,580 Several steps were taken by the Correctional Service to formally respond to the concerns identified by Arbour, 261 00:27:15,880 --> 00:27:21,760 and significant efforts were made by corrections to shore up policy and procedures to ensure compliance with the law. 262 00:27:21,760 --> 00:27:25,030 In the 12 years between Ashley's death and the Report of Justice Kabore. 263 00:27:25,840 --> 00:27:30,160 Importantly, all of the incidents that I cite occur after these significant reforms, 264 00:27:30,520 --> 00:27:36,200 and I feel they are important to study because they occur in a highly regulated context that is governed by the rule of law. 265 00:27:36,610 --> 00:27:41,920 As Justice our board noted in 1994, and is perhaps even more so the case today. 266 00:27:44,790 --> 00:27:50,910 Now this slide here just gives you a little bit of sense of some of the laws that are in place. 267 00:27:52,170 --> 00:27:55,050 And this one here breaks all rules of PowerPoint. 268 00:27:55,080 --> 00:28:01,680 You're not supposed to actually read it, but what it does show is sustained engagement with penal issues, 269 00:28:01,890 --> 00:28:08,520 coupled with this coupled with the previous slide show that a plethora of law and procedures governing penal institutions. 270 00:28:08,940 --> 00:28:13,110 So it's not like we didn't take this stuff seriously. It's not like we didn't notice that it happened. 271 00:28:13,110 --> 00:28:15,030 And it's not like we were just saying, Well, 272 00:28:15,030 --> 00:28:20,639 we'll just kind of hope that it passes for the next high media day, but rather over the next last 20 years, 273 00:28:20,640 --> 00:28:26,879 we have actively worked at changing policies, train staff and human rights and work toward a culture of due process and prisoners. 274 00:28:26,880 --> 00:28:32,220 And that's both on the level of advocacy academics and at the level of policymaking. 275 00:28:32,910 --> 00:28:38,760 And we've seen an act of reframing and positioning of women's concerns within the human rights narrative internationally and local. 276 00:28:39,630 --> 00:28:47,910 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, 277 00:28:48,390 --> 00:28:54,360 institutional apathy, or simply some kind of by-product of imprisonment or increased punitive attitudes, 278 00:28:54,360 --> 00:28:57,720 or a typical disjuncture between procedural and substantive justice. 279 00:28:58,230 --> 00:29:02,730 All of these things play a part, and arguments could be cogently made with respect to each. 280 00:29:03,030 --> 00:29:13,139 But I think the picture is far more complicated. So here, here's where I want to argue in explaining what's happening here. 281 00:29:13,140 --> 00:29:14,670 Is that organisationally? 282 00:29:14,670 --> 00:29:21,990 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. 283 00:29:22,590 --> 00:29:28,680 And following the recent work of socio legal scholars, I'm going to focus a little bit on the agency of documents. 284 00:29:29,370 --> 00:29:34,949 But first, let me pause and go on to speaking about the first point. 285 00:29:34,950 --> 00:29:38,340 They're the organisational and reputational risk management. 286 00:29:39,930 --> 00:29:44,759 So just as our board's public inquiry and recently the Ashley Smith case have 287 00:29:44,760 --> 00:29:48,510 created what I'd call a reputational crisis for the correctional service, 288 00:29:48,960 --> 00:29:53,190 as CSC is response to this highly publicised violations of human rights and their 289 00:29:53,190 --> 00:29:58,470 subsequent inquiries can be instant understood as a form of reputational risk. 290 00:29:59,010 --> 00:30:09,330 This organisational emphasis on reputational risk repositions human rights as operational risks to be managed alongside other managerial concerns. 291 00:30:09,810 --> 00:30:19,920 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. 292 00:30:20,250 --> 00:30:29,580 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. 293 00:30:30,750 --> 00:30:37,710 Although undeniably useful, legal and administrative regulations can operate as forms of institutional protectionism, 294 00:30:37,950 --> 00:30:42,269 and they're more apt at protecting the institution from potential legal challenges and 295 00:30:42,270 --> 00:30:47,280 reputational blemishes than protecting the prisoner for the austere status of punishment. 296 00:30:48,240 --> 00:30:50,879 Organisational scholar Michael Power. 297 00:30:50,880 --> 00:30:57,450 Risk scholar Michael Power, who is well known for his earlier work on the Audit Society, argues that risk management, 298 00:30:57,660 --> 00:31:05,610 which was once the aspect of management control, has become a benchmark of good governance for a range of public and private institutions. 299 00:31:06,090 --> 00:31:09,810 In addition, he argues that concerns about uncertainty and risk, 300 00:31:09,990 --> 00:31:16,890 broadly defined have entered into the private and public sector management thinking and become an organising concept. 301 00:31:17,910 --> 00:31:22,890 He characterises risk management as much more than a technical analytic practice, 302 00:31:23,280 --> 00:31:31,830 but argues it also embodies significant values and ideals, not the least of which are accountability and responsibility. 303 00:31:32,610 --> 00:31:37,139 Not surprisingly, corrections, like many criminal justice organisations, 304 00:31:37,140 --> 00:31:43,620 are now routinely conducting corporate risk assessments to diagnose and manage areas of vulnerability. 305 00:31:44,520 --> 00:31:53,550 Powers analysis of the techniques used by organisations to frame primary and secondary risk are particularly of particular relevance. 306 00:31:54,540 --> 00:32:00,809 He argues that primary risks or operational risks are that diverse basket of threats to an 307 00:32:00,810 --> 00:32:06,900 organisation which are variably divine defined based on specific organisational contexts. 308 00:32:07,290 --> 00:32:15,510 For instance, corrections are subject to many primary risks, including the potential for legal and critical claims about the organisation. 309 00:32:16,050 --> 00:32:23,040 These claims can focus on a range of concerns that are limited or that include but are not limited to the treatment of prisoners. 310 00:32:23,490 --> 00:32:27,780 Institutional misstatement. Mismanagement. Compliance with law and human rights. 311 00:32:27,990 --> 00:32:31,140 Suitability of policies and managerial procedures. 312 00:32:31,380 --> 00:32:39,990 Spending and building deficiencies, etc. Here are the plethora of policies and procedures and their related paper document. 313 00:32:40,110 --> 00:32:44,250 Accountable and compliant governance that acts to buffer the prison from. 314 00:32:44,340 --> 00:32:53,280 Hospital litigation and the risk of investigations that can result from pressure of advocates, guards, unions, intense media coverage, 315 00:32:53,610 --> 00:33:00,870 public broadcasts of rights violations that can result in public criticism and from many other areas, 316 00:33:02,040 --> 00:33:07,200 as well as questions about human rights, due process, treatment and accountability. 317 00:33:07,890 --> 00:33:16,680 These threats are what power talks about as reputational risks that need to be organisationally managed and that preoccupy organisations. 318 00:33:17,910 --> 00:33:24,660 So how is this relevant to Canadian corrections? Well, exactly two years after the Cabrera report came out, 319 00:33:25,230 --> 00:33:30,480 corrections emerged on the development of a strategic model to the management of human rights. 320 00:33:30,480 --> 00:33:34,920 And the report that they provided was Human Rights and Corrections A Strategic Approach. 321 00:33:35,580 --> 00:33:40,890 This 1997 report by the Working Group on Human Rights essentially functions as an audit. 322 00:33:41,340 --> 00:33:46,710 It's an example of organisational risk management and practice and it demonstrates how rights are repositioned as risks, 323 00:33:46,980 --> 00:33:50,010 especially if compliance to the law cannot be demonstrated. 324 00:33:50,520 --> 00:33:57,870 The purpose of the working group was to review corrections systems for ensuring compliance to the rule of law in human rights matters. 325 00:33:57,870 --> 00:34:03,870 To provide a general strategic model for evaluating compliance with in the correctional context, 326 00:34:04,260 --> 00:34:10,740 and to present recommendations concerning the Service's own ability to comply and effectively communicate such compliance. 327 00:34:10,770 --> 00:34:15,240 It's not ironic that the word compliance is littered throughout this document. 328 00:34:16,110 --> 00:34:21,059 The report also outlines a corporate strategy for the above mentioned compliance, goals and summary. 329 00:34:21,060 --> 00:34:27,630 It recommends CSC as communication strategy ought to get beyond demonstrating appropriate systems are in place. 330 00:34:28,620 --> 00:34:36,120 That and that they're in the compliance but rather focus on how they comply with law and policy in a statistically satisfactory way. 331 00:34:36,480 --> 00:34:44,490 Even if the increasing proportion of employees claim to support or not support the philosophy not to 332 00:34:44,490 --> 00:34:50,130 be both credible and accountable to the Canadian public and international human rights community, 333 00:34:50,400 --> 00:34:56,910 the report says CSC has to do a number of things, including develop performance data. 334 00:34:57,500 --> 00:35:06,239 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. 335 00:35:06,240 --> 00:35:13,590 I've only highlighted a few. But what these reports do is they very actively will look at any critique or any recommendation 336 00:35:13,590 --> 00:35:18,960 of any inquest and then decide that they will include here's the recommendation, 337 00:35:19,200 --> 00:35:22,290 here's whether or not we agree or disagree with this recommendation. 338 00:35:22,620 --> 00:35:30,510 And here's our rationale, our reasoning for it. And this is just one example of where we see this operating. 339 00:35:31,440 --> 00:35:36,780 So, for example, in a recent report of the correctional investigator of 2012 13, 340 00:35:36,840 --> 00:35:41,610 the correctional investigator cites law and he says that in order to compete to comply with law, 341 00:35:41,850 --> 00:35:48,839 we ought to end or prohibit the practice of placing mentally ill prisoners or those at risk of suicide or engage in self-injury. 342 00:35:48,840 --> 00:35:52,560 As Ashleigh said, that was in prolonged periods of segregation. 343 00:35:53,130 --> 00:35:59,580 What we see from CSC is not agreement with this recommendation, not a rejection of this recommendation, 344 00:35:59,580 --> 00:36:03,630 but simply an agreement in principle that is publicly posted for us all to state. 345 00:36:04,230 --> 00:36:08,340 And what it does is appeal quite clearly to the presence of law, 346 00:36:08,400 --> 00:36:14,639 rule and policy that governs the possibility or the need or the potential for 347 00:36:14,640 --> 00:36:19,350 the violation of this particular rights norm and this particular rights claim. 348 00:36:19,920 --> 00:36:24,870 So very quickly, corrections says, yes, well, we have all these administrative measures in place. 349 00:36:24,870 --> 00:36:29,940 We have all these protections in place, which we can also see from the Smith case that didn't work particularly well, 350 00:36:30,180 --> 00:36:34,620 but yet it's there and it enables the continued use of the practice. 351 00:36:36,930 --> 00:36:45,120 Now additionally, what we see happening is the strategic model advocating a series of additional techniques such as the 352 00:36:45,120 --> 00:36:50,879 development of performance data's balancing and quite deliberately balancing good news with bad news, 353 00:36:50,880 --> 00:36:59,760 presenting its own record, reinforcing its measures message that offenders are varying levels of social risk and also very 354 00:36:59,760 --> 00:37:05,070 actively creating media opportunities and making more of their statistical and individual successes. 355 00:37:05,520 --> 00:37:13,140 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, 356 00:37:13,830 --> 00:37:20,250 each of which is strategically aligned with corporate missions and corporate objectives that show compliance with 357 00:37:20,250 --> 00:37:26,610 the rule of law and the embodiment of those rules and institutionalisation of those rules within the organisation. 358 00:37:28,140 --> 00:37:36,330 So as this slide shows and others that what we see here is an external impression of due process that is 359 00:37:36,330 --> 00:37:41,220 actually resulting on the ground and very little substantive change in terms of securing prisoners rights. 360 00:37:41,640 --> 00:37:44,040 The emphasis on rules enables CSC to respond. 361 00:37:44,120 --> 00:37:51,680 Recommendations, but at the same time avoid too committing to cultural and systemic changes that could prevent an incident like a death in custody. 362 00:37:52,340 --> 00:37:56,030 Further, the appearance of more rules and better policy has the effect of creating the 363 00:37:56,030 --> 00:38:01,999 impression that the problems identified by inquests are being actively resolved now, 364 00:38:02,000 --> 00:38:10,190 without question. And corrections, like police in other contexts are and Akin are keenly interested in instituting change in the wake of inquiries, 365 00:38:10,400 --> 00:38:16,820 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 366 00:38:16,820 --> 00:38:21,020 the reputation being attacked and potentially the risk of future litigation. 367 00:38:21,440 --> 00:38:26,600 The threat of no accountability is a major organisational risk for corrections or police. 368 00:38:30,630 --> 00:38:38,459 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. 369 00:38:38,460 --> 00:38:51,430 And my final point. Now the risky penile subject as well as risk events are produced through institutional practices. 370 00:38:51,850 --> 00:38:54,969 Any form of acting out self-injury, outburst, 371 00:38:54,970 --> 00:39:03,700 violation of rules or whatever happens typically is read as an act of resistance, not survival or coping, 372 00:39:04,000 --> 00:39:07,960 and thus it can be used to justify an intervention and escalate monitoring, 373 00:39:08,170 --> 00:39:12,790 institutional or street charges, informal penalties, or in severe cases, segregation. 374 00:39:13,240 --> 00:39:17,410 Now, each of these incidents that I've mentioned produces paper. 375 00:39:17,740 --> 00:39:23,230 And anybody who's ever worked in an institution knows how much paper gets produced after each event. 376 00:39:24,070 --> 00:39:33,790 So the correctional management of a high risk, high need prisoner like Ashley is going to be a disciplinary practice or incur disciplinary practices, 377 00:39:34,000 --> 00:39:39,160 but it also involves a parallel non disciplinary and routine management of events. 378 00:39:39,610 --> 00:39:45,340 This focus on events has a tendency to decontextualised the individual and his or her pathology. 379 00:39:45,970 --> 00:39:52,240 Prisoners actions are abstracted and viewed through paperwork and organisational processes as a series 380 00:39:52,240 --> 00:39:57,610 of recorded events that ought to be efficiently managed in order to avoid triggering other concerns. 381 00:39:58,300 --> 00:40:06,010 Frequently, incident report narratives of an event from the perspective of IS are written from the perspective of multiple correctional officers. 382 00:40:06,580 --> 00:40:14,500 The totality of these reports renders an event auditable, permanent and linked to an individual's risk profile. 383 00:40:15,010 --> 00:40:17,350 If force is needed to remedy a situation, 384 00:40:17,350 --> 00:40:24,730 an additional report and occasionally a videotape and the use of force is produced to ensure the event is recorded and also again, auditable. 385 00:40:25,210 --> 00:40:32,890 Rarely, if ever, are prisoners outside of the filing of a grievance report offered the opportunity to document their version of the events. 386 00:40:33,580 --> 00:40:41,350 Each of these reports in their collectivity enable the correctional service to document maintenance of safety and security of correctional staff, 387 00:40:41,350 --> 00:40:46,330 prisoners and the institution while being simultaneously accountable to the rule of law. 388 00:40:47,260 --> 00:40:55,720 However, these reports can also legitimise exceptional situations and legitimate substantive rights violations. 389 00:41:03,440 --> 00:41:12,890 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. 390 00:41:15,320 --> 00:41:22,639 And they are this. First, they narrate and documented chaotic environment created by resistant inmates or staff by 391 00:41:22,640 --> 00:41:26,870 highlighting the sorts of security breaches such as self-injury or disobeying guards. 392 00:41:27,380 --> 00:41:33,320 They work to legitimise the use of austere forms of control and an executive power of prison officials to use 393 00:41:33,320 --> 00:41:39,440 solitary as necessary measures to maintain order and ease restrictive measures in the name of preventative security. 394 00:41:40,340 --> 00:41:46,970 Third, the reports and document that constitute disruptive prisoners and staff as a threat to prison security. 395 00:41:47,300 --> 00:41:53,660 We also see this in the Smith case of non-compliant staff who divert from protocols, even if justified, 396 00:41:53,840 --> 00:41:59,570 are being vulnerable to discipline and characterised as risky in reports that document their conduct. 397 00:42:00,020 --> 00:42:05,480 And for it, they produce an auditable trail of visual and paper evidence that can demonstrate compliance if challenged. 398 00:42:06,290 --> 00:42:12,019 In this context, the penal subject is reduced to a series of proselytise behaviours that are monitored and restrained 399 00:42:12,020 --> 00:42:17,270 with little consideration of agency or the role of context in the production of these behaviours. 400 00:42:17,900 --> 00:42:25,610 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. 401 00:42:27,470 --> 00:42:29,690 So now returning to the Ashley Smith case, 402 00:42:29,690 --> 00:42:36,860 we can see how documentary narratives in her profile and her file provide minute by minute accounts of an event, 403 00:42:37,130 --> 00:42:39,470 and only occasionally do they infer intent. 404 00:42:39,890 --> 00:42:48,290 The duty logs, the post notes, the incident reports, the use of force reports all produce detailed renderings of events, not individuals. 405 00:42:49,070 --> 00:42:55,160 The way a psychological file might, this paperwork documents compliance with procedures, policies, 406 00:42:55,160 --> 00:43:02,840 and thus law showing quite clearly upon audit or third party inspection that the rules were indeed followed or not. 407 00:43:04,550 --> 00:43:12,500 In Ashley's case, staff in over 100 occasions entered her cell and used various types of force in each event. 408 00:43:12,860 --> 00:43:16,580 Each of these events was videotaped and documented in mounds of paperwork. 409 00:43:16,850 --> 00:43:24,410 Upon reviewing these documents, it was decided by senior managers of the prison at the regional and national levels of Correctional Service of Canada, 410 00:43:24,680 --> 00:43:29,270 that everything was going according to policy and thus by default law. 411 00:43:29,900 --> 00:43:37,580 When errors were observed in the oversight reports, the report stated things like the camera did not capture of the team members. 412 00:43:37,820 --> 00:43:43,640 The date and time were not verbally stated. Decontamination did not happen as per policy. 413 00:43:44,060 --> 00:43:49,879 The nurse decontaminated her through the mail slot and not in her presence was absent. 414 00:43:49,880 --> 00:43:54,610 And these narratives are bigger. Questions about the appropriateness of force restraints, 415 00:43:54,620 --> 00:44:02,300 strip searches and the use of nonconsensual pharmacological interventions for prisoners in repeated crisis is, well, tempting to self-injury. 416 00:44:02,810 --> 00:44:07,459 Questions that the line staff acting with Ashleigh raised and where in some instances 417 00:44:07,460 --> 00:44:11,570 discipline for when they acted in accordance to their own senses of substantive justice. 418 00:44:12,110 --> 00:44:20,209 The accumulation of reports from multiple institutions tended to focus not so much on how to holistically manage, Ashleigh, and the least restrictive, 419 00:44:20,210 --> 00:44:30,770 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. 420 00:44:32,750 --> 00:44:35,510 And since Ashley was prone to self infection, 421 00:44:35,510 --> 00:44:41,210 until she lost consciousness and sometimes what they called playing possum or pretending to lose consciousness, 422 00:44:41,480 --> 00:44:44,930 but then struggling with guards who came into her cell to cut off the ligatures 423 00:44:45,380 --> 00:44:49,790 or restraint her orders were given from senior management to the guards. 424 00:44:50,030 --> 00:44:52,460 Do not enter the cell until she stopped breathing. 425 00:44:52,940 --> 00:44:59,059 This order was partly to blame for Ashley's death, and consequently, throughout my cross-examination, 426 00:44:59,060 --> 00:45:04,730 I was repeatedly asked if keeping Ashley in a segregation cell or a restraint chair or 427 00:45:04,970 --> 00:45:09,950 restraining order to a bed was not preferable to using force to cut ligatures off her neck. 428 00:45:10,550 --> 00:45:15,500 After all, it would have prevented the ultimate event, her death and thus the inquest. 429 00:45:16,310 --> 00:45:19,850 The paper trails around the management of Ashley are a double edged sword. 430 00:45:20,180 --> 00:45:26,390 On one hand, they show a series of inhumane interventions used to keep her alive, both on videotape and on paper. 431 00:45:26,600 --> 00:45:30,110 But they also clearly document adherence to procedure. 432 00:45:30,620 --> 00:45:37,520 There's little formal space here to question the practices of prolonged segregation, of a self injuring inmate, 433 00:45:37,940 --> 00:45:46,580 or the use of restraints or chemical, chemical or physical, because they're seen as justifiable for the reasons of safety and security. 434 00:45:47,060 --> 00:45:53,120 The rules and the policy framework did little to respect or protect Ashley's rights or autonomy, 435 00:45:53,120 --> 00:45:56,570 or prevent harm or death, or even her right to self injure. 436 00:45:57,860 --> 00:46:04,339 Though documents such as briefing notes or reports through documents such as briefing notes and reports. 437 00:46:04,340 --> 00:46:14,630 Her self-injurious behaviour is repeatedly characterised as an event that threatened the prison order that required force to control, 438 00:46:14,990 --> 00:46:18,740 and that use of force made the prison vulnerable to rights litigation. 439 00:46:19,250 --> 00:46:26,989 It occupied a significant amount of institutional resources and person power to contain these narratives recasts 440 00:46:26,990 --> 00:46:33,530 her right to treatment and life saving interventions into an issue around risk that need to be managed. 441 00:46:33,860 --> 00:46:38,510 The safety of guards and the general order of segregation were threatened by her behaviour. 442 00:46:42,600 --> 00:46:52,170 So in addition to this, we've also seen the emergence within corrections to a number of other strategies of institutional protectionism. 443 00:46:53,100 --> 00:46:59,729 So one of the reasons strategies that we've seen in the last 20 years intensifying and within the last 3 to 4 is 444 00:46:59,730 --> 00:47:05,730 increased restricted access to information and prisoners that are needed by advocates for legal mobilisation. 445 00:47:07,050 --> 00:47:11,010 This is important because corrections not allowing external researchers, 446 00:47:11,010 --> 00:47:16,940 advocates and in one case the member of the I'll turn a member of the opposition, 447 00:47:16,950 --> 00:47:21,720 member of one of our leading national parties into prisons to see what was happening means 448 00:47:21,750 --> 00:47:25,770 that there's an inability to know here and there's an inability to know a whole context, 449 00:47:26,130 --> 00:47:30,090 which means it's very difficult to construct a counter-narrative about what happens inside 450 00:47:30,240 --> 00:47:34,530 in the face of the presence of documents that clearly show compliance to the rule of law. 451 00:47:35,190 --> 00:47:42,900 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, 452 00:47:43,230 --> 00:47:48,750 they do actually also adherence to the rules and the policies as written within corrections. 453 00:47:48,990 --> 00:47:55,889 But they also all show egregious interventions. And in the absence of a lack of policy, a lack of following or procedure, 454 00:47:55,890 --> 00:48:01,950 it becomes very difficult to make an argument or to construct a counter narrative, as I've talked about already. 455 00:48:02,610 --> 00:48:09,750 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, 456 00:48:10,170 --> 00:48:14,040 and has a tendency of silencing some of the advocates who are complicit in the failed 457 00:48:14,040 --> 00:48:18,480 solutions and brought to the table as stakeholders and advisors in these cases. 458 00:48:21,500 --> 00:48:28,220 So in conclusion, I've argued that despite the promise, the security of the prison is not devoid of human rights protections. 459 00:48:28,430 --> 00:48:36,469 Correctional systems, by their very nature, are very dependent and heavily dependent on rules to ensure fair and humane treatment of 460 00:48:36,470 --> 00:48:41,600 offenders and orderly contact within conduct within a very difficult social relationship. 461 00:48:42,050 --> 00:48:43,320 In fact, volumes, 462 00:48:43,400 --> 00:48:52,490 numbers of uses of force and on prisoner incidents suggest that CSC is making an effort to appear compliant with international human rights standards. 463 00:48:53,180 --> 00:48:56,300 But the rule of law and due process are important to CSC. 464 00:48:56,690 --> 00:49:04,100 But as this example shows have rights violations are being framed as organisational risks to be managed through procedural compliance. 465 00:49:04,610 --> 00:49:10,849 Second, it demonstrates the importance of documents in creating this perception of crisis as a disastrous. 466 00:49:10,850 --> 00:49:17,989 Are important pressures for change and risk management and PR crisis as argue simply don't just occur and said they are 467 00:49:17,990 --> 00:49:24,500 organised and they have their origins in the failures of management and intelligent processes over a long period of time. 468 00:49:25,820 --> 00:49:30,830 In this case, more rules are not needed, for they in themselves are part of the difficulty. 469 00:49:31,520 --> 00:49:34,260 Rather than seeking a promulgation of new norms. 470 00:49:34,280 --> 00:49:43,549 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, 471 00:49:43,550 --> 00:49:47,180 practices, experiences and tendencies they appear to be fostering. 472 00:49:47,870 --> 00:49:52,790 And by applying this line of reasoning to the ideal of rights, accountability and penal risk and insecurity, 473 00:49:53,060 --> 00:50:01,670 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. 474 00:50:02,360 --> 00:50:06,960 Is there given that we have some difficulties with rules and we have plenty of them? 475 00:50:06,980 --> 00:50:10,460 What does a meaningful penal accountability actually look like? 476 00:50:11,030 --> 00:50:17,749 And what happens to the integrity of a sentence when the experience of imprisonment becomes inconsistent and unpredictable, 477 00:50:17,750 --> 00:50:22,580 even in the face of procedures and laws meant to engender consistency and fairness? 478 00:50:23,600 --> 00:50:27,590 And what is the right balance between prevention, care and rights? 479 00:50:28,040 --> 00:50:28,400 Thank you.