Sunday, May 15, 2016

Alternatives to Incarceration

by Justin Piché (Associate Professor, Criminology, University of Ottawa)

* Notes from a 12 May 2016 presentation at a public forum held at Ottawa City Hall by Mothers Offering Mutual Support (MOMS) and the Criminalization and Punishment Education Project (CPEP) entitled Ottawa's Jail: The Costs of Human Warehousing [check against delivery] *

I’d like to begin by asking all of you a series of related questions. Why are you here, in this place located on unceeded and unsurrendered Algonquin Territory, right now? Why have you decided to share this precious moment of your life with us? What’s your intention? What’s your hope? What are your responsibilities.

How I answer these questions is admittedly selfish: I’m here for myself. I’m here because there’s an imbalance in my spirit. There’s an imbalance in my spirit because there’s injustice in my life that haunts my every step. There’s injustice in my life because many of my brothers and sisters are suffering in human warehouses like the Ottawa-Carleton Detention Centre (OCDC), while survivors of what we call ‘crime’, including the loved ones of prisoners, also suffer. They’re suffering because the powerful have privileged criminalization and punishment, instead of understanding and healing, in the face of social conflicts and harms that become the property of the penal system and its actors. The powerful have privileged criminalization and punishment because enough of us have consented to this arrangement where violence is met with violence, a violence that does violence to our spirits, a violence that keeps us perpetually angry and imbalanced, calling for more violence in the form of more police, more courts and more prisons.  And yet, we are never at peace with ourselves and in all of our relations.

The proposals articulated today if implemented would likely reduce the harms experienced by those living and working at the Innes Road jail, as well as their loved ones.  However, these proposals are just that – a means to attenuate the violence of incarceration.  They will not fix OCDC.  They will not fix OCDC because it’s not broken. It's not broken because the deprivation of liberty, whether experienced as a captive or captor, is a violent relationship that sustains an unequal and unjust social order, and seen in this light we’re forced to grapple with the fact that OCDC is a success story – it still exists, no matter how many horror stories come to our attention. And if this success story makes you uncomfortable, if it assaults your spirit like it assaults mine, then we must say “no” to OCDC, we must say “no” to criminalization and punishment. We must demand alternatives that reduce our reliance on caging human beings that are all endowed with promise, and we must demand alternatives that give us a chance to heal to the degree that’s possible.

So when I think about the successful failures of OCDC that are structured into its very fabric, a violent tapestry of punishment and deprivation, my attention turns towards finding ways for us to collectively escape OCDC in a way that would open the door wider to all of us to access more effective, just, and less costly responses to the social conflicts and harms that we presently criminalize. In CPEP’s first submission to the OCDC Task Force we identified over twenty-five measures that could be implemented to this end. Given the time restraints, however, I’ll focus on six, some of which require action outside of the Ontario Ministry of Community and Correctional Services.

First, to better meet the needs of survivors and accused parties, we should expand the capacity to offer restorative and transformative justice encounters in Ottawa in cases where survivors and accused parties both voluntarily agree to take part in such a process. From there, provincial policy directives could be issued requiring police officers, Crown attorneys, and duty counsel to inform survivors and the accused of the availability of these alternatives to the penal process.

Second, to avoid the harms of penality, especially in cases where persons are being criminalized in relation to their use of drugs or who are experiencing mental health crises, the Government of Ontario needs to “[e]xpand the capacity of pre-charge and post-charge diversion programs” for these populations.

Third, to decrease the number of persons detained before the conclusion of their criminal law proceedings, the Government of Ontario should lobby the Minister of Justice and Attorney General of Canada to enact a new legal framework for bail that respects the presumption of innocence by dramatically limiting the use of pre-trial detention. Recognizing that it may take some time for the federal government to enact new bail legislation, there are still avenues available to the Government of Ontario to make short-term policy reforms in this area to reduce the number of remanded prisoners held in OCDC along the lines suggested by the Canadian Civil Liberties Association, my colleague Cheryl Webster and others.

Fourth, to expand the number of offences where sentencing judges have the discretion to impose “all available sanctions other than imprisonment that are reasonable in the circumstances [that] should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders” under section 718.2(e) of the Criminal Code of Canada, the Government of Ontario needs to request that the Minister of Justice and Attorney General of Canada review all mandatory minimum sentences and, at the very least, repeal those enacted from 2006 to 2015.

Fifth, once a person arrives at OCDC, there are a number of tools that could be used to alleviate facility crowding that would also promote the timely and safe re-entry of prisoners into the community. One obvious starting point would be to extend the use of temporary absences of up to 72 hours authorized by the Superintendent of the facility, which are currently only available to prisoners serving a prison term, to legally innocent prisoners for the purposes of accessing their lawyers, education, training, employment, volunteer and other opportunities outside prison walls that would promote their personal well-being and, by extension, our collective well-being. OCDC’s Superintendent should also expand the authorization of temporary absences for sentenced prisoners who apply for them, especially in the case of individuals scheduled to serve intermittent sentences on the weekend who live safely among us during the week.

Lastly, to ensure that what is criminalized in Canada reflects the values of its citizens, the Government of Ontario should request that the Minister of Justice and Attorney General of Canada launch an exhaustive review of the Criminal Code of Canada to identify acts that ought to be decriminalized or legalized in keeping with evolving societal standards.

With sustained public attention in the media, the presence of many engaged community members and groups, and the political will to make a difference, there’s now an opportunity to put in place additional pathways to divert residents of Ottawa and surrounding areas away from incarceration in a manner that will result in better, but not fixed, living and working conditions at OCDC that cannot be missed. The time for band-aid solutions, including the mass transfer of prisoners from the Innes Road jail to other facilities that took place shortly after the OCDC Task Force was launched, has long-passed, and such approaches are unacceptable because of the violence it does to all of us and our spirits.