COVID-19 Provincially Incarcerated Individuals - A Policy Report

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

Solitary Confinement Continues in Canada Under a Different Name

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

Mr.Big: The Undercover Breach of the Right against Self-Incrimination

At common law, the privilege against self-incrimination protects the accused solely against compelled testimony in formal proceedings. Under the Canadian Charter of Rights and Freedoms,1 the privilege received constitutional protection2 and a pre-trial right against self-incrimination was subsequently created. The Supreme Court of Canada (SCC) stated in the early 1990s that the principle against self-incrimination is a principle of fundamental justice under s. 7,3 “perhaps the single, most important organizing principle of criminal justice”.4 This allowed for the protection of the accused against compelled confessions outside of the narrow context of formal proceedings.Despite the significant developments of the protection against self incrimination, limitations to its application remain.5 The present chapter will address one of these limits: the exclusion of individuals subjected to Mr. Big undercover operations from the protection of the right against self incrimination under s. 7, on the basis that its application is limited to confessions obtained while the individual was in state detention.6 In order to assess whether a legal protection should apply to a certain situation, one ought to look at the rationales for which the protection exists and how that pairs with the situations at issue.7 I will argue that, despite the suspect not being in physical state detention, the very basis on which Mr. Big operations function violates all rationales behind the right against self-incrimination

CoVID-19 in Canadian Prisons: Policy, Practice and Concerns

Correctional Service of Canada and the provincial prison systems have a duty to provide incarcerated individuals with health services that are comparable to those in the community, but they have failed to do so during the COVID-19 pandemic. There are inherent practical difficulties to implementing health care in prisons. In addition, prison demographics include a higher proportion of populations that are vulnerable to disease. These factors together mean that the prison response to COVID-19 must involve depopulation and the implementation of guidelines provided by public health agencies in all institutions. So far, the measures taken have been insufficient, as is evidenced by the rapid rates of spread of COVID-19 within prisons compared to the community. An overreliance on segregation of incarcerated individuals as a preventive measure raises concerns under s. 7 of the Charter of Rights and Freedoms (the Charter) and international human rights. There are also equality concerns under s. 15 of the Charter, given the high proportion of Indigenous people in prison. Ultimately, some prison systems’ failure to respond adequately to the pandemic impedes the successful flattening of the curve and will likely prolong the life of COVID-19 in the community. It highlights the urgency of the much-needed prison reforms that have been overlooked for decades

The Bad, the Ugly, and the Horrible: What I Learned about Humanity by Doing Prison Research

Every Canadian academic conducting research with humans must submit an ethics application with their university’s Research Ethics Board. One of the key questions in that application inquired into the level of vulnerability of the interviewees. Filling in that question, I had to check nearly every box: the interviewees were incarcerated, old, under-educated, poor, Indigenous or other racial minorities, and likely had mental and physical disabilities. However, it was not until I met John that I understood what all those boxes actually meant. They were signalling that I was entering a universe of extreme marginalization—the universe of the forgotten. I learned then what we, as a society, look like at our worst, when no one watches, when there is no money to be made and no votes to be gained. Entering this universe has allowed me to identify some broader socio-legal issues, applicable across prison demographics, from gaps in prison health care and punitive carceral responses to health needs, to substantive and procedural access to justice for violations of rights in prisons and the role of health care and access to justice in achieving the rehabilitative and reintegration goals of sentencing

Employing Older Prisoner Empirical Data to Test a Novel s. 7 Charter Claim

This article builds the case for expanding s. 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners\u27 security of the person, and sometimes their lives, in ways that violate their rights under s. 7, since the deprivations they suffer result from legislative policies and state conduct that are by turn arbitrary, overbroad, and grossly disproportionate. While s. 7 has not been used to review such administrative documents or actions before, such a review is both feasible and highlydesirable given the current lack of substantial access to justice by prisoners, their heightened vulnerability, and the evolution of the section 7jurisprudence

Incarceration in Canada: Risks to and Opportunities for Public Health

In their introduction to the latest edition of Public Health Law and Policy in Canada, the editors are unequivocal about the importance of this area of growing interest and scholarship. This text, they explain, “explores a range of perspectives that examine how law, in many forms and contexts, plays a critical role in protecting the public from known and emerging threats and promoting conditions for health.” Written and edited by leading health law scholars and featuring contributions from legal and health experts from across the country, this book provides a comprehensive overview of our Canadian public health law and policy system. Now in its fourth edition, Public Health Law and Policy in Canada continues to be the definitive guide to the foundations of our public health law system. Building on past content, it offers an in-depth analysis of current critical public health issues and includes new chapters on incarceration, mental health law and pharmaceutical regulation, making it a valuable resource for anyone working in the public health sphere – from academics, to practitioners, to policymakers

Mr. Big and the New Common Law Confessions Rule: Five Years in Review

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine. In this article, the authors review the last five years of judicial application of the new Hart framework. In total, all 61 cases that applied Hart were analyzed qualitatively and quantitatively, looking at whether the goals of the Hart framework have been met, what effect the framework has had on the admissibility of Mr. Big obtained confessions, and what, if any, shortcomings the framework has. The authors argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. In the end, the framework has had a negligible impact on the number of confessions that are admitted

Mr. Big and the New Common Law Confessions Rule: Five Years in Review

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.In this article, the authors review the last five years of judicial application of the new Hart framework. In total, all 61 cases that applied Hart were analyzed qualitatively and quantitatively, looking at whether the goals of the Hart framework have been met, what effect the framework has had on the admissibility of Mr. Big obtained confessions, and what, if any, shortcomings the framework has. The authors argue that the flexibility and discretion built into the Hart framework have resulted in an inconsistent application of the two-prong test. In the end, the framework has had a negligible impact on the number of confessions that are admitted

Recent Crime Legislation: The Challenge for Prison Health Care

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