Need for legislated independent oversight in Nova Scotia jails
Wednesday, August 28, 2019 @ 8:46 AM | By Hanna Garson
They follow in the footsteps of the Regional Advocacy Committee of the Canadian Association of Elizabeth Fry Societies, which has been providing a somewhat similar service for incarcerated women. However, initiating information collection in the men’s provincial correctional facilities is but a small step towards sorely needed independent oversight.
There has long been concern that the rule of law does not run through prison walls. It is possible (nay probable) that regardless of good intentions and good faith efforts of those in charge of and working within a prison or jail, the construct itself necessitates that injustices will occur — as stated by Lord Acton, “Power tends to corrupt and absolute power corrupts absolutely.”
This theory was brought to life in the now famous Stanford University Prison Experiment conducted by professor Philip Zimbardo et al. in 1971. This experiment assessed the psychological impacts of perceived power, focusing on the dynamics between prisoners and prison officers. Volunteers were randomly assigned to be either a guard or prisoner. The experiment lasted only six days as students rapidly took on their designated roles, some psychologically torturing the prisoners.
The question then becomes, if the extreme power imbalance between detainee and detainer necessarily leads to abuse, how do we create a structure or alter the machine in a manner that can prevent this dynamic from developing, or at least reduce the intensity of the dynamic?
Individuals detained in a correctional facility are not legally to be robbed of any liberties beyond those necessarily lost upon incarceration.
However, it has become clear that there are significant structural flaws in Canadian correctional facilities, and thus in how the remand conditions as well as provincial sentences given to offenders are not manifest as intended in the courtroom (R v. Summers 2014 SCC 26).
This principle has been argued by defence counsel to reduce sentences based on unacceptable conditions of confinement during remand (R v. Prystay 2019 ABQB 8; R v. Adams 2016 ABQB 648).
The ideals of transparency and accountability have been recognized as a way to ensure the rule of law runs through public administrative bodies. Accountability is only possible once there is transparency (neither institutions nor individuals can be held accountable until it is known what has or has not transpired).
Transparency does not necessarily result in accountability, but it is a logical precondition for accountability.
Federally, the Corrections and Conditional Release Act and regulations have delegated powers to the Office of the Correctional Investigator (OCI). Created in 1973, this office was in part a response to the Report of the Commission of Inquiry into Certain Disturbances at Kingston Penitentiary, which highlighted the need for review by an independent body to address inmate grievances.
The OCI has legislated access to enter any federal correctional facility (and any part of the facility) at any time, without announcing their visit, along with the power to investigate complaints, order documents from CSC, as well as others.
The OCI and its legislated powers have resulted in a degree of increased transparency, providing public reports with their findings. There is no such legislated independent oversight in Nova Scotia’s Correctional Services Act.
Without legislated oversight that guarantees access to the body tasked with the role, access to the jail is contingent on the goodwill of the correctional administrators voluntarily opening the doors of the jail to outsiders. This means access is necessarily dependent on the relationship between the administrators and the oversight body, diminishing the independence of oversight.
Civil society groups performing information collection is exciting. Perhaps information accessed can move towards legislative reform that mandates independent oversight at least parallel to that in the federal Corrections and Conditional Release Act.
Hanna Garson is a criminal defence and prison litigator at Planetta Hughes LLP in Nova Scotia and the current chair of East Coast Prison Justice Society. She is interested in legal jousts regarding what is an appropriate use of state power and can be reached at email@example.com.
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