location: publications / books / Prisoners of Isolation: Solitary Confinement in Canada / Chapter 5 The Penitentiaries’ Response to the McCann Case: Canada’s New Prisons of Isolation / The Parliamentary Subcommittee and the Justice Model of Corrections

With these legislative and administrative reforms in place, the parliamentary subcommittee envisaged a vital role for the courts.

It should then lie with the courts to ensure that those individuals and agencies involved in the management and administration of the revised system adhere to general standards of natural justice and due process of law as they substantially exist elsewhere in the criminal justice system ...

We suggest that it would be both reasonable and appropriate to proceed in such a way as to allow a much greater scope for judicial control over official’ activity and the conditions of correction in a reformed penitentiary system than is now feasible. Assuming that the system is definitive in its commitment, clear in its intentions, and effective in its prescription, then the nature of the task remaining to be done by the courts in ensuring that the Rule of Law prevails within penitentiaries should not be disproportionate to what they do outside prison walls on an ongoing basis. Abuse of power and denial of justice are always possible under any system, no matter how well conceived or organized it may be These things are felt no less keenly in prisons than elsewhere, and their consequences in a penitentiary setting are often far more severe.35

The parliamentary subcommittee’s approach to reform demands (and assumes) a commitment by correctional administrators and staff to what has been called the ‘justice model’ of corrections. This model has been developed by professionals within the correctional system who seek a ‘set of objectives for prisons evolved from a series of propositions concerning [a] view of man and law in the context of justice.’36 David Fogel has articulated the justice perspective on corrections:

We have to conceive of the period of incarceration and its place in criminal justice in a new way... We need to conceptualize imprisonment differently and to narrow our rhetorical claims ...The sentence must be seen as a part of the continuum of justice- it must be experienced as just, reasonable, and constitutional. It is in the context of justice that a mission arises for the prison and its staff. The mission is fairness. Discretion must be harnessed by as much voluntary administrative explication of norms as is necessary to produce a sense of fairness for both the keeper and the kept ...

The period of incarceration can be conceptualized as the time in which we try to reorient the prisoner to the lawful use of power. One of the more fruitful ways a person can teach non-law-abiders to be law-abiding is to treat them in a lawful manner. The entire effort of the prison should be seen as an influence attempt based on operationalizing justice. This is called the ‘Justice Model.’ It begins by recognizing, not by moralizing, what the prison stay is about. Simply stated, it is an enforced deprivation of liberty. It is a taking of some or all of the days of a person’s life and his confinement within an area. When men are confined against their will... the bottom line of the arrangement of life for both the keeper and the kept should be justice-as-fairness. Opportunities for self-improvement should be offered but not made a condition of freedom.

Confinement and compression in a human zoo of large numbers of men, who have in the past resorted to the use of force, fraud and violence. is at best a precarious venture. James Q. Wilson said, ‘We have imposed the rehabilitative philosophy in a way that offends simple justice ...when it is possible for one per- son, by manipulating the system, to go free while another, convicted of the same crime. remains in prison for a long term.’ Prison administrators should not now further confuse their staff with a mission either claiming moral or psychological’ redemption, nor with one which leans on brutality to create orderliness. Justice- as-fairness provides the keeper and the kept with a rationale and morality for their shared fates in a correctional agency... This model purports to turn a prison experience into one which provides opportunities for men to learn to be agents in their own lives. to use legal processes to change their condition, and to wield lawful power. Men who can negotiate their fates do not have to turn to violence as a method of achieving change ...It takes a great flight of imagination or studied neglect to include the current prison experience as a system of justice. The entire case for a justice model rests upon the need to engage the person in the quest for justice as he moves on the continuum from defendant-to-convict-to-free citizen ...

In the absence of a continuum of justice in the prison, most ends are reached unlawfully. When unlawful behavior is detected, it is itself frequently dealt with in the absence of the very standards of due process which we insist upon outside the prison. The result is a further indication to the convict that lawful behavior has little pay-off. He can be dealt with arbitrarily and usually responds by treating others in the same manner. In the context of prison, justice-as-fairness means having clear rules, ensuring their promulgation, and a procedure for determining and punishing rule infractions rooted in due process safeguards ...Further, it means giving up the foot-dragging, which the litigation so vividly bares ...We should be in the forefront of exposing the indignities of poor medical care ...and inhumane segregative facilities ...Courts should not have to force modern administrators to adopt any of the above procedures -it embarrasses our claim to professionalism ...

In the micro-world of the prison, the justice perspective calls upon the makers of rules to share legitimate power with the enforcers and consumers of the rules. It also urges that all rules and rulings be required to stand the test of being the least onerous way of reaching a lawful end.37

Since the parliamentary subcommittee’s endorsement of the justice model, the Supreme Court in Martineau (No.2) has, as we have seen, accepted the court’s responsibility for ensuring judicial review of prison decisions in light of the fundamental principle of fairness.38 The solicitor general of Canada in his official response to the subcommittee’s report has accepted principle 11- that the rule of law must prevail in the penitentiary -and principle 12 -that justice is an essential condition of corrections.39 There appears, therefore, to be a consensus in the minds of Canadian legislators, the minister responsible for the penitentiary system, and the Supreme Court of Canada that justice-as-fairness should be an essential tenet of life behind prison walls. However, if history teaches us anything in the field of corrections, it is that the rhetoric is often a great deal loftier than the reality. Certainly the rhetoric of the Canadian penitentiary service in the early 1970s did not contemplate the establishment of solitary-confinement units that violated the Canadian Bill of Rights. The British Columbia Penitentiary and its solitary-confinement unit are now closed. Has the closure of the unit also marked the passing of the practices of imprisonment with which it was linked? What has replaced the special correctional unit of the British Columbia Penitentiary? Under what condi- tions and through what processes are the Jack McCanns, the Donald Oags, and the Andrew Bruces now confined in administrative segregation? Under what circumstances and against what criteria is their segregation re- viewed both internally by the penitentiary system and externally by the courts? It is to these questions that the next section of this book will speak.

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