08/10/2012 12:21 EDT | Updated 10/10/2012 05:12 EDT

What to Think About on Prisoner's Justice Day


August 10 is International Prisoner's Justice Day -- a day now recognized around the world, but which began in Canada 37 years ago.

On August 10, 1974 a Canadian man, Edward Nalon, died in the segregation unit of an Ontario prison. The next year and every year since, prisoners across the country observed a day of mourning, refusing to eat or to leave their cells, and refusing to forget the unjust death of Nalon and also of other prisoners. Though deprived of their liberty, Canadian prisoners have shown they are not deprived of moral courage and by marking August 10 they stand up for prisoner justice -- and prisoners and non-prisoners around the world have stood with them.

In Canada, August 10 is an important day to consider how we treat people behind bars, and to remember the goals of incarceration. It is also a day for us to ask many questions about our prison system as a whole, and to assess how some of the recent actions of the Canadian government may affect these conditions. From overcrowded jails and increased use of segregation to refusals to entertain prisoners' transfers, our practices toward prisoners may need to be properly evaluated.

In Canada, punishment is imposed upon a finding of guilt after judicial process. When the punishment for a crime is incarceration -- as opposed to a fine or a suspended sentence -- this means that the prisoner is punished for crime through the deprivation of his or her liberty. Liberty is the right upon which true self-determination and full enjoyment of other fundamental rights, is predicated. In other words, the deprivation of liberty is, in itself, the punishment.

The suffering inherent in that punishment should not be unjustly aggravated. Yet, when placed "behind bars" a person is immediately placed into a situation of powerlessness and dependency, and therefore exposed to possible cruel, inhuman, degrading treatment or punishment and even torture. While the deprivation of liberty may be legal, the deprivation of human dignity is not. In Canada, our Charter of Rights and Freedoms prohibits cruel and unusual punishment, and we have ratified the International Convention Against Torture.

Many prison conditions worldwide are deplorable and far worse than Canadian conditions. But Canadian prisons still have serious problems, including for example the overuse of segregation of the mentally ill. International prisoner standards recognize that segregation should not be used except in the most justifiable circumstances or else it will only unduly aggravate suffering and harm. The CCLA has intervened in the inquest of the death of Ashley Smith, who committed suicide after her pleas for help were ignored, and who had been subject to many periods of segregation.

The CCLA is also concerned about overcrowding, and the disproportionately high incarceration of particularly marginalized groups in society including aboriginal people. As Canadians we must investigate, identify, and rectify the root causes of these conditions.

In this regard, we believe mandatory sentencing is harmful -- it will punish those who may most need the benefit of considering mitigating circumstances. Mandatory sentencing will further perpetuate overcrowding inside prisons, and will ignore structural inequities outside of prisons that contribute to poverty and marginalization. Mandatory sentencing does not permit even consideration of restorative justice, since its aim is solely punitive and devoid of mitigating considerations both circumstantial and root.

Inside prisons, we must vigilantly monitor conditions of prisoners. Recent reports have highlighted the increased use of force by guards and the impact of overcrowded jails for the safety of prisoners and guards. This must be addressed.

The goals of incarceration are to protect society and to rehabilitate offenders to prepare for their reintegration into society. Such goals should also drive our responses to prison transfers from Canadians incarcerated outside of Canada. When foreign governments agree to international prison transfers of Canadian citizens, we believe the Canadian government should accept these prisoners unless there are objective risks to national security.

There is no other justifiable "discretion" to deprive a Canadian citizen for the right to finish serving time in Canada when a foreign government has agreed to the transfer, because the prisoner still has the legal right under the Charter to "enter his or her own country." Secondly, when the jail sentence abroad is completed, a Canadian citizen has the constitutional right to re-enter Canada, so it makes practical sense to allow Canadians to finish serving prison sentences inside Canadian prisons -- enabling access to rehabilitation programs, visits from family or friends, and close to the cultures and society into which they will eventually reintegrate. Society and the individual will benefit, in cases of foreign prison transfers of Canadian citizens, from the "transition time" inside a Canadian prison.

Finally, we should be concerned on this day about recent reports of Canadian officials favouring CSIS's use, in exceptional circumstances, of information procured from torture. The international legal prohibition against torture is absolute even to fight terrorism or drug trafficking and it protects everyone.

Canadian and international human rights law deems illegal information procured from torture. Information procured from torture contaminates the legal system and the moral fabric of the societies that tolerate such treatment and its fruits. While security and counter-terrorism are serious valid objectives, they cannot justify torture and the conflation of 'security' with a supposed need for 'torture information', is a harmful syllogism.

This August 10, CCLA recognizes the rights of prisoners in Canada to humane treatment and to respect for their human dignity.