Women in Prison: Liberty, Equality, and Thinking Outside the Bars

This article considers the potential of rights-based advocacy to respond to the troubling reality of a growing women\u27s prison population, and it makes an attempt to sketch out an approach to advocacy and scholarship that seeks both liberty and substantive equality for criminalized and imprisoned women. It proceeds in four parts. First, it documents some of the legislative and policy changes made to sentencing and penal law in the last decade. Next, it identifies some of the ways that these changes have an impact on women and on particular groups of women. It then suggests some ways that academics, lawyers, law students, and other feminist advocates might have a role in resisting the punishment agenda and seeking liberty and substantive equality for criminalized women. Finally, it considers thinking outside the bars in the light of the exploding number of incarcerated Indigenous women in Canada

Ending the Isolation: An Introduction to the Special Volume on Human Rights and Solitary Confinement

Prisoners and their advocates in Canada and around the world have been calling attention to the harms and impact of solitary confinement for some time. What is significant about the current moment is that these calls seem to be achieving some traction, even as the use of solitary confinement grows across jurisdictions. This short piece introduces a special volume of the Canadian Journal of Human Rights which collects the writing of advocates and scholars from a range of disciplines (criminology, law, philosophy) who bring a variety of perspectives and methodologies to bear on the opaque correctional systems that hold human beings in isolation for prolonged periods of time. The work in this special volume examines experiences of solitary and prisoner resistance to it. Attending to points of continuity, as well as specificity of this practice across jurisdictions, contributors discuss and critique the persistence of solitary confinement in the face of reform efforts. In considering the potential for change through litigation, law reform, social movements, and acts of resistance, they envision a future without solitary confinement

The Punishment Agenda in the Courts

This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual treatment or punishment.” A dominant strand in the section 12 case law has been the minimal impact the section has had in limiting the proliferation of mandatory minimum sentences in recent years. This paper considers another strand of section 12 case law which has received little attention and which presents a different kind of challenge to the punishment agenda, namely section 12 review of prison conditions and the treatment of prisoners. The paper concludes with some thoughts on the limitations and potential of Charter litigation in the prison context

Abolitionist (Un)Learning: Reflections on Decarcerating Disability and Disability, Criminal Justice and Law

Reading Decarcerating Disability: Deinstitutionalization and Prison Abolition by Liat-Ben-Moshe and Disability, Criminal Justice and Law: Reconsidering Court Diversion by Linda Steele rocked my world, in the very best way. They pushed me to think in new ways about my research, teaching, and activism and are must-reads for those of us working for abolition in, through, and against law

Punishment and Its Limits

The nearly three decades in which Beverley McLachlin was a member of the Supreme Court, including as Chief Justice, witnessed a number of shifts in Canadian penal policy and in the reach and impact of criminal law. During the Harper decade (2006 to 2015) in which the federal Conservatives enjoyed a majority government led by Prime Minister Stephen Harper, criminal justice policy took a turn toward the punitive. The federal government tore a page out of the American legislative handbook and sought to “govern through crime”, albeit in a more restrained Canadian style

Solitary Confinement, Prisoner Litigation, and the Possibility of a Prison Abolitionist Lawyering Ethic

This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section considers the possibilities and challenges of pursuing prisoner rights litigation with broader critiques of the carceral state in mind. The paper ends with examples of anti-carceral lawyering efforts and identifies some elements of a prison abolitionist lawyering ethic

Prisoner Voting Rights in Canada: Rejecting the Notion of Temporary Outcasts

This book chapter examines a successful prisoner voting rights case in Canada and suggests that the opposition in the U.S. to postincarceration legal, social, and economic consequences of criminal conviction would benefit from attention to the way the continued construction of prisoners as temporary outcasts resonates positively in society, assisting to legitimate the myriad penalties and consequences imposed on prisoners\u27 release

From Smith to Smickle: The Charter\u27s Minimal Impact on Mandatory Minimum Sentences

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form of Charter scrutiny as we enter the fourth decade of the Charter’s operation

The \u27Great Writ\u27 Reinvigorated? Habeas Corpus in Contemporary Canada

This short prelude to Professor James Oldham’s 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History, “Habeas Corpus, Legal History and Guantanamo Bay,” discusses some of ways that the writ of habeas corpus plays an important role in promoting access to justice and protecting basic liberty interests in contemporary Canadian law. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus, namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay

Precedent Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent

In addition to the important substantive changes to Canadian law brought about by Carter v Canada (AG), the decision is significant for its consideration of the doctrine of stare decisis. This article examines the circumstances under which Canadian courts, including courts lower in the relevant hierarchy, might be entitled to revisit otherwise binding, higher court precedents and to depart from them. At least in constitutional cases, the Carter trial decision affirms that trial judges may reconsider rulings of higher courts where a new legal issue is raised or where there is a change in circumstances or evidence that “fundamentally shifts the parameters of the debate.” Following a review of the recent Supreme Court of Canada case law on stare decisis, including Carter, the article turns to some critiques of the Court’s newly articulated approach to revisiting precedents in lower courts, and responds to those critiques. The article also looks to the recent case law in which courts largely reject attempts to reconsider precedents from higher courts, revealing that the pull to follow precedent remains strong in Canadian law